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By Akin Kuponiyi

The legal hostility between a Lagos businessman, Dr Emmanuel Fijabi Adebo on the one hand and Nigeria Bottling company and NAFDAC on the other has been shifted to Lagos division of court of Appeal. Dr Fijabi and his company, Fijabi Adebo holdings have filed a notice of appeal against the judgement of the Lagos high court.

Nigerian Bottling company and NAFDAC have also filed notices of appeal against the same judgement.

In the notice of appeal filed before the appellate court on behalf of Dr Adebo by his counsel, Mr Abiodun Onidare, he is contending that, the trial Judge failed to award damages and grant the reliefs that were prayed for by the Petitioner against Nigeria bottling company .This is by ignoring the facts and the evidence before the court that Nigerian bottling company was liable to Dr Adebo and other consumers of its products especially its Fanta and Sprite which was held to contain excessive benzoic acid and sunset yellow and declared unfit for human consumption by the Stockport Metropolitan Borough Council ‘s Trading Standard Department of Environment and Economy Directorate, United Kingdom. It was also corroborated by Coca Cola European Union being the food regulatory bodies of the United Kingdom and Europe on the NBC’s Franchise, consequently negligent in the duty of care to petitioner and other consumers.

Therefore Dr Adebo is urging the appeal court to set aside the decision of the lower court.

However Nigerian Bottling company in its notice of appeal filed before the appellate court by Barrister Tunde Busari SAN, the company is urging the appellate court to set aside or strike out the portion of the judgement directing NAFDAC to mandate NBC to include a written caution on bottles of its soft drinks containing benzoic acid and that the said soft drinks should not be taken alongside Vitamin C, as same becomes poisonous if taken together, on the ground that the said pronouncement and others were not sought nor prayed for by the petitioner but nevertheless, the lower court proceeded to grant the said relief, thereby ordering the company to take a step detrimental to its business and well-being.

NAFDAC, in its notice of appeal filed by Professor Taiwo Osipitan SAN, is urging the appellate court to dismiss the amended statement of claim of the petitioner on the ground that, the award of damages of N2million is gratuitous as the petitioner did not claim the said amount or any sum of money from the company.

Meanwhile Dr Adebo and his company in a counter affidavit in opposition to the application filed by both Nigerian bottling company and NAFDAC before the lower court to stay the execution of the judgement delivered by the court, is urging the court to dismiss the two applications on the ground that the safety of lives of the people of Nigeria is of paramount consideration to the honorable court and hence the need to provide all possible equitable remedy to safeguard the public.

It would be recalled that a Lagos high court sitting at Ikeja, Lagos state south west Nigeria, in a judgement delivered by justice Adedayo Oyebanji (Mrs) ordered NAFDAC to forthwith mandate Nigeria Bottling Company PLC to include on all bottles of Fanta and Sprite soft drinks manufactured by the company a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with vitamin C.

The court also declared that NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption, products in which in the United Kingdom declared unsafe after.

The court also awarded a cost of N2 million against NAFDAC. The judgement of the court was sequel to a suit filed by a Lagos businessman Dr Emmanuel Fijabi Adebo and his company Fijabi Adebo holdings Limited against Nigeria Bottling company Plc and National Agency for Food and Drug Administration and Control Control (NAFDAC) urging the court to declare that Nigeria Bottling company was negligent and breached the duty of care owed to their valued customers and consumers in the production of contaminated Fanta and Sprite soft drinks with excessive “benzoic acid and sunset ” addictive.

DR Fijabi also urged the court to direct NAFDAC to conduct and carry out routine Laboratory tests of all the soft drinks and allied products of the company to ensure and guarantee the safety of the consumable products, produced from the Nigeria Bottling company factory.

In amended statement of claim filed before the court by a Lagos lawyer Barrister Abiodun Onidare, on behalf of the claimants, it was alleged that sometimes in March, 2007 Fijabi Adebo holdings company purchased from Nigeria bottling company large quantities of Coca-Cola, Fanta Orange, Sprite, Fanta Lemon, Fanta Pineapple and soda water for export to the United Kingdom for retail purposes and supply to their customers in United Kingdom.

When the consignment of the soft drinks arrived in United Kingdom, fundamental health related matters were raised on the contents and composition of the Fanta and Sprite products by the United Kingdom Health Authorities, specifically the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate.

The findings of the said United Kingdom were also corroborated by the Coca-Cola European Union and product were found to have excessive levels of “Sunset Yellow and Benzoic Acid “which are unsafe for human consumption.

Due to the irregularities and harmful content of the soft drinks which can cause cancer to the consumer, the claimants could not sell the Fanta and Sprite products resulting in appreciable losses, as they were certified unsuitable for consumption and were seized and destroyed by the United Kingdom health authorities

The claimants alleged further that NAFDAC failed to carry out necessary tests to determine if the soft drinks were safe for human consumption.

The claimants averred that as a registered exporter with the Nigerian Export Promotion council, they could lawfully export the products of Nigeria bottling company to any part of the world , in fact Nigeria bottling company was aware that their products they purchased were meant for export.

Consequently, apart from other reliefs,the Claimants were demanding for the sum of N15,119,619.37 as special damages and N1,622,000 being the money admitted received from the claimants.

However, Nigeria bottling company in its amended statement of defense filed before the court by Mr. T. O.Busariadmitted, supplying the products but contended that the product manufactured by the company are meant for local distribution and consumption as the company does not manufacture its products for export, as Coca-Cola brand of soft drinks is manufactured and bottled by various Coca-Cola franchise holders in most countries of the world, including the United Kingdom.

The company denied that it was negligent in the manufacturing of its products as alleged as stringent quality control procedures were adopted in its production process to ensure that its products are safe for consumption of the final user.

The company denied that the damages alleged by the claimants was occasioned by its negligence or any fault from the company as the level of the chemical components in its soft drinks is safe for consumption in Nigeria.

Consequently the claimants cannot recover any damages from the company occasioned by their unlawful exportation of products, which are meant for local distribution within Nigeria.

Nigeria bottling Company contended that the Claimants claims are speculative, frivolous and vexatious and should be dismissed with substantial cost

NAFDAC did not filed any defense.
In proving his case Dr Fijabi Adebo testified for himself while being led in evidence by Mr Abiodun Onidare and tendered 12 exhibits, while the sales Operation manager Micheal Nwosu China and the head of Central Laboratory Abiodun Adeola Falana both of Nigeria bottling company testified on behalf of the company and also tendered 12 exhibit.

In her judgement, justice Oyebanji said “It is imperative to state that the knowledge of the Nigeria bottling company that the products were to be exported is immaterial to its being fit for human consumption. The court is in absolute agreement with the learned counsel for the claimants that soft drinks manufactured by Nigeria bottling company ought to be fit for human consumption irrespective of color or creed.

It is manifest that NAFDAC has been grossly irresponsible in its regulatory duties to the consumers of Fanta and Sprite manufactured by Nigeria bottling company. in my respective view, NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption,products which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin C, which can be freely taken by the unsuspecting public with the company’s Fanta or Sprite.As earlier stated, the court is in absolute agreement with the learned counsel for the Claimants that consumable products ought to be fit for human consumption irrespective of race, colour or creed.

By its certification as satisfactory, Fanta and Sprite products manufactured by Nigeria bottling company without any written warning on the products that it cannot be taken with Vitamin C, NAFDAC would have by its grossly irresponsible and unacceptable action caused great harm to the health of unsuspecting public, the court in the light of the damming evidence before it showing that NAFDAC has failed to live up to expectation,cannot close its eyes to the grievous implication of allowing the status quo to continue as it is.

For the reasons herein adumbrated in this judgement, the court hereby orders as follows :
That NAFDAC shall forthwith mandate Nigeria bottling company to, within 90 days hereof,include on all the bottles of Fanta and Sprite soft drinks manufactured by the company, a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin Ct as same becomes poisonous if taken with Vitamin C.

In consideration of the fact that this case was filed in 2008 and that it has been in court for nine years ,costs of N2million is awarded against NAFDAC. Interest shall be paid on the costs awarded at the rate of 10% per annum until liquidation of the said sum.