Three years ago, the Consumer Protection Council (CPC) took on the   Nigerian Bottling Company Plc, the makers of Coca Cola for breach of   public hygiene in the preparations of their products which are sold to   Nigerians.

The Consumer Protection Council went as far as obtaining the   authorization of the Federal Attorney General and Minister of Justice   to use the instrumentality of litigation to compel the company to   comply with the regulations and standards as they relate to their   activities and products.

But midway into the public spat, both the Nigerian bottling company   plc. and the hierarchy of the Consumer Protection Council headed by   Mrs. Dupe Atoki settled their difference even as the consumers of   these products by the Nigerian bottling company were abandoned to   their cruel fate of being exposed to suspected poisonous substances   which they buy as soft drinks from every nook and cranny of Nigeria.

Whilst the Nigeria bottling company and the Consumer Protection   Council made up their differences, little did most people realize that   in a court room somewhere in Lagos state, a courageous Nigerian had   dragged the Nigerian bottling company to the legal institution over   serious breach to public safety.

This litigant also joined the National Agency for food and Drugs known   as Nafdac as a necessary party for its abysmal failure to regulate   properly and check the infiltration of the Nigerian market of   poisonous soft drinks.

That brave citizen known as Dr. Emmanuel Fijabi Adebo and his company,   Fijabi Adebo Holding limited have successfully convinced the Lagos   High Court to rule that the Nigerian bottling company was negligent   and had subsequently 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”.

Angered by the legendary negligence of NAFDAC to conduct and carry out   routine laboratory test of all the soft drinks and allied products of   the company to ensure and guarantee the safety of the consumable   products, produced from Nigerian bottling company factory, the   Plaintiff asked for the severest of legal sanctions against this   negligent government agent- NAFDAC.

In an amended statement of claim filed before the court by a Lagos   lawyer, Mr. Abiodun Onidare, on behalf of the claimants, he alleged   that sometime 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 the 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 products 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. Infact, Nigeria   Bottling Company was aware that the products they purchased were meant   for export.

Consequently, apart from other reliefs, the claimants demanded   N15,119,619.37 as special damages and N1,622,000 being the money   admittedly received from the claimants.

However, Nigeria Bottling Company in its amended statement of defence   filed before the court by Mr. T. O.Busari admitted supplying the   products but contended that the product manufactured by the company   were 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.

What a defence?

The company denied that it was negligent in the manufacturing of its   products as alleged, stressing that 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 were   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.

Nigeria Bottling Company contended that the claimants’ claims are   speculative, frivolous and vexatious and should be dismissed with   substantial costs.

NAFDAC did not filed any defence.

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 judgment, 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, color 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 the unsuspecting public.

The judge ruled further: ”The court, in the light of the damming   evidence before it showing that NAFDAC has failed to live up to   expectations, 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 judgment, 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 C 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 9 years, costs of N2 million 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.”

First, on reading this brilliant verdict this writer is convinced that   Nigerians must be grateful for the heroic role of the plaintiffs who   stood their ground, withstood all manners of blackmails and threats to   follow through their matter for as long as it took the presiding   judge, Adedayo Oyebanji to reach this significant determination by   pronouncing both the Nigerian bottling company and NAFDAC criminally   negligent in the manufacturing and distribution of products that are   grossly substandard.

Although the damages awarded are way too insignificant, the Judge   deserves a national award for displaying uncommon courage in ruling in   such a way that millions of Nigerians are already singing the praises   of the court for being the last hope of the common man in this   instance.      Secondly, the line of defence adduced by Nigerian bottling company is   a direct admission of the facts that this company has consistently and   willingly manufactured poisonous substances which they sell to   Nigerians purportedly as soft drinks.      And then to even think that NAFDAC which ought to regulate what   products are consumed by Nigerians, deliberately failed to show up at   the court to defend these weighty allegations, only to now wake up to   file for stay of execution of the judgment shows that there is a   conspiracy between NAFDAC and the Nigerian bottling company plc to   continue to churn out substandard and indeed toxic substances to be   supplied and sold to Nigerians.

So Nigerians who drinks these substandard drinks are fit to die? Let   the millions of consumers of coca cola institute a class action in   court to ensure that appropriate damages are awarded against Nigerian   bottling company (NBC) for manufacturing products for consumption in   Nigeria which even its  European counterpart ruled as poisonous.

Apart from instituting a legal action against NBC NIGERIAN Government   should be made to appreciate the indubitable fact that with this   judgment it is apparent that NAFDAC must be unbundled and reorganized   since their officials have become public enemies who collude with fake   manufacturers of substandard products to be sold to Nigerians.

As an agency created by law, NAFDAC has many strong provisions to   enable the officials competently carry out their duty to stop   poisonous products from being supplied to the Nigerian market.  The   problem is with the individuals manning NAFDAC and not the enabling   law.

A perusal of the enabling law revealed that under the parts II of the   Nafdac act, the agency have the functions of ; “to—regulate and   control the importation, exportation, manufacture, advertisement,   distribution, sale and use of food, drugs, cosmetics, medical devices,   bottled water and chemicals; Conduct appropriate tests and ensure   compliance with standard specifications designated and approved by the   Council for the effective control of the quality of food, drugs,   cosmetics, medical devices, bottled water and chemicals and their raw   materials as well as their production processes in factories and other   establishments.

NAFDAC is also to undertake appropriate investigations into the   production premises and raw materials for food, drugs, cosmetics,   medical devices, bottled water and chemicals and establish relevant   quality assurance systems, including certificates of the production   sites and of the regulated products.

NAFDAC is empowered to also “Undertake inspection of imported food,   drugs, cosmetics, medical devices, bottled water and chemicals and   establish relevant quality assurance systems, including certification   of the production sites and of the regulated products; Compile   standard specifications and guidelines for the production,   importation, exportation, sale and distribution of food, drug,   cosmetics, medical devices, bottled water and chemicals; Undertake the   registration of food, drugs, cosmetics, medical devices, bottled water   and chemicals; Control the exportation and issue quality certification   of food, drugs, cosmetics, medical devices, bottled water and   chemicals intended for export.

Other functions of NAFDAC are to “Establish and maintain relevant   laboratories or other institutions in strategic areas of Nigeria as   may be necessary for the performance of its functions under this Act;   Pronounce on the quality and safety of food, drugs, cosmetics, medical   devices, bottled water and chemicals after appropriate analysis;   Undertake measures to ensure that the use of narcotic drugs and   psychotropic substances are limited to medical and scientific   purposes; Grant authorization for the import and export of narcotic   drugs and psychotropic substances as well as other controlled   substances; Collaborate with the National Drug Law Enforcement Agency   in measures to eradicate drug abuse in Nigeria.

It is the duty of NAFDAC to advise Federal, State and local   governments, the private sector and other interested bodies regarding   the quality, safety, and regulatory provisions on food, drugs,   cosmetics, medical devices, bottled water and chemicals.

It is also to undertake and co-ordinate research programmes on the   storage, adulteration, distribution and rational use of food, drugs,   cosmetics, medical devices, bottled water and chemicals; Issue   guidelines on, approve and monitor the advertisement of food, drugs,   cosmetics, medical devices, bottled water and chemicals.

In addition NAFDAC is charged with the duty of compiling and   publishing  relevant data resulting from the performance of the   functions of the Agency under this Act or from other sources; Sponsor   such national and international conferences as it may consider   appropriate; Liaise with relevant establishments within and outside   Nigeria in pursuance of the functions of the Agency.

Importantly, the agency is to determine the suitability or otherwise   of medicines, drugs, food products, cosmetics, medical devices or   chemicals for human and animal use; and Carry out such activities as   are necessary or expedient for the performance of its functions under   this Act.

President Muhammadu Buhari and the National Assembly must act swiftly   to clean up the mess that NAFDAC has become and compel Nigerian   bottling company plc to recall all her products so as to start afresh   to bottle on soft drinks that meet global best practices.  The soft   drinks that are good for European markets must be the same that should   be supplied to the Nigerian markets to stop Nigerians from dying from   the consumption of poisonous and addictive substances in the guise of   soft drinks.      Nigerians must speak out, take action including civil disobedience and   mass rallies to compel the quickest redress of these anomalies   observed by the United kingdom laboratory which pronounced the Coca   cola products in Nigeria as substandard and unfit for human   consumption.

Written by Emmanuel Onwubiko, Head Of Human Rights Writers Association Of   Nigeria (Huriwa)