- By an amended Writ of Summons and Statement of Claim sealed out of the High Court of Lagos State, Nigeria Fijabi Adebo Holdings Limited and its alter ego, Dr. Emmanuel Fijabi Adebo (“Claimants”) filed the suit against Nigerian Bottling Company Plc and National Agency for Food and Drug Administration and Control (“1st and 2nd Defendants”) and sought for declarative as well as monetary reliefs. The principal relief of the Plaintiffs was for a declaration by the Court that the 1st Defendant was negligent and breached the duty of care owed to their valued customers and consumers which includes the Claimants in the production of contaminated Fanta and Sprite soft drinks with excessive benzoic and sunset yellow addictives. The crux of the Claimants case upon their pleadings was that sometime in 2007, the 1st Claimant purchased from the 1st Defendant, large quantities of its products; 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 valued customers in the United Kingdom. The Claimants further asserted that when the first consignment of the soft drinks from the 1st Defendant arrived in the United Kingdom, they were subjected to laboratory test by the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate and the products were found to have excessive levels of Sunset Yellow and Benzoic Acid which are unsafe for human consumption as the addictives are probable cause for cancer. Consequently, premised on the findings of the United Kingdom food control agency and collaborated by the Coca Cola European Union, the consignments were destroyed and as a result the Claimants lost huge sums of money.
- The Claimants further contended that the 1st Defendant knew that the products were for export and that the 1st Defendant by making Fanta and Sprite products which were unfit for human consumption, especially as the Benzoic acid and Sunset Yellow contents were far above the recommended level for safe human consumption, the 1st Defendant was negligent and by extension of same material facts, the 2nd Defendant was negligent in carrying out its duties of proper and diligent administration and control of food and drugs in Nigeria. The Claimants urged the Court to find and hold that the Defendants were negligent and hence liable to them in damages. It is important to mention that the main evidence relied upon by the Claimants in urging the Court to find and hold that the Defendants, particularly the 1st Defendant was negligent, hence liable in damages, was the laboratory test result issued by the United Kingdom food control agency. A poring of the said report will reveal that it recognized that although the level of the chemical addictives in the 1st Defendant’s soft drinks exported to the United Kingdom by the Claimant was in excess of the United Kingdom approved limit, the benzoic acid and sunset yellow addictives levels in soft drinks are country specific; hence different countries have different limits for the addictives.
- It is also pertinent to state at this point that the 2nd Defendant did not file any defence, however its personnel (Head of its Laboratory) was subpoenaed by the 1st Defendant as a witness. In its testimony while analyzing the result of its laboratory examination of the 1st Defendant’s products as ordered by the Court, the witness stated unequivocally that the chemical component particularly the benzoic acid in the 1st Defendant’s soft drinks is satisfactory and within prescribed national limit for human consumption. The witness went on to state that the sunset yellow addictive has no limit in Nigeria and that the percentage of the sunset yellow found in the 1st Defendant’s soft drinks was accordingly safe for consumption in Nigeria.
Upon considering the totality of the pleadings and evidence adduced in the case, particularly as it relates to the Claimants’ onus to prove that the 1st Defendant was negligent and liable to them in damages, the Honourable Court in its very well considered judgment of 15 February, 2017 per Honourable Justice (Mrs.) A.A Oyebanji, held that there was no breach of the duty of care by the 1st Defendant and consequently the 1st Defendant was not liable to the Claimants in damages. The Honourable Court pronounced this at pages 18 -20 of its judgment as follows:
“Considering the totality of the pleadings and evidence led in this case particularly Exhibits C, C1 and C2, the certificates issued by the 2nd Defendant to the 1st Defendant certifying the 1st Defendant’s soft drinks, Exhibit D1 issued by the 2nd Defendant pursuant to orders of the Court and the testimony of DW2 before this Court, all of which are to the effect that all soft drinks manufactured by the 1st Defendant were certified by the 2ndDefendant (the regulatory body charged with the responsibility of setting standards for the manufacture of consumable products in Nigeria) as being fit for human consumption, the chemical component of same being within acceptable limits, the Court has therefore come to the inevitable conclusion that there was no breach of duty of care on the part of the 1st Defendant in this case.”
In other words, based on pleadings and evidence led in this case, the 2nd Defendant having certified all soft drinks manufactured by the 1st Defendant as being fit for human consumption, the 1st Defendant cannot in the circumstance be held to have breached its duty of care to the Claimants because of the chemical component of the said products. The Court would have arrived at a totally different conclusion if Exhibits C, C1 and C2 were not issued by the 2nd Defendant in favour of the 1st Defendant.
May I add that from the pleadings and evidence led in this case, it is manifest that the regulation governing the chemical component of Coca Cola products in Nigeria is different from that which is applicable in the United Kingdom. Whilst it was the Claimants’ case that the product bought from the 1st Defendant was exported to the United Kingdom with the knowledge of the 1st Defendant, the 1st Defendant has vehemently denied being aware of such export stating that its products are meant for consumption in Nigeria and that there was a different Coca Cola franchise holder in the United Kingdom. The position of the law remains that he who asserts must prove.
In the instant case, the Claimants have not led any evidence or exhibited any document to substantiate the allegation that the 1st Defendant was aware that the products bought were for export.