International Tobacco Company Plc. V. Nafdac (2007)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

The suit giving rise to this appeal was on the 6th March 2003 brought in the Federal High Court by the appellant against the respondent by an originating summons seeking the interpretation of and construction to be placed on certain provisions of the National Agency for food and Drug Administration and control Decree Number 15 of 1993, as amended; the Food and Drugs Act Cap 150, Laws of the Federation of Nigeria 1990 as amended, and the Drugs and related products (Registration etc) Decree Number 19 of 1993 also as amended. The appellant also applied for interim and interlocutory orders of injunction restraining the respondent from entering,impounding and detaining the appellant’s products or staff pending the determination of the suit. These are all evidenced at pages 1- 47 of the record of appeal.

The learned trial court in consequence, refused the appellant’s application for interim reliefs. Before the hearing of the motion on notice for interlocutory injunction therefore, the respondent filed a preliminary objection contending that the statutory condition precedent for the commencement of the suit against the respondent was not satisfied by the appellant before the action was filed. The learned trial judge upheld the preliminary objection i.e. to say to the competence of the suit on the ground that the condition precedent of service of a pre-action notice before the commencement of the suit was not complied with. The suit was accordingly struck out. This appeal is therefore against the said ruling delivered on the 19th May, 2003.

The brief facts of this suit were that the plaintiff/appellant’s premises at Oregun, Lagos was threatened and in fact sealed by the Defendant/Respondent following an information received that the appellant had in stock defective cigarettes that might be harmful to prospective users. Samples of the cigarettes were taken away for the determination of the true level of spoliation by means of laboratory analysis. The sum of N660,000.00 was therefore demanded by the respondent from the appellant to cover the cost of laboratory analysis of the product samples impounded. The plaintiff/appellant therefore filed the originating summons wherein it sought for the determination whether the defendant/respondent had the statutory powers to regulate the appellant’s activities, while at the same time sought remedial interim reliefs against the respondent.

The trial court refused the appellant’s application for the interim reliefs. Before hearing of the motion on notice for the interlocutory injunction however, the respondent filed a preliminary objection contending that the statutory condition precedent for the commencement of the suit against the respondent was not satisfied by the appellant before the action was filed. The learned trial court on the 19th May 2003 upheld the respondent’s preliminary objection to the competence of the suit on the ground of failure to serve a pre-action notice. It is against the said ruling of the court that the appellant now appeals.

By a notice of appeal dated 30th June and filed on the 9th July, 2003, the appellant filed three grounds of appeal. In accordance to the rules of court, briefs were exchanged by the parties with the appellants brief dated 20th September, 2004 and deemed filed and served on the 9th December, 2004.

On the 15 November, 2006, when the appeal was called up for hearing the learned appellant’s counsel Mr. Oyefuso adopted their said brief of arguments wherein he tied their issue no 1 to ground of appeal No. 1 and issue 2 to grounds 2 and 3. In his submission before us, the learned appellant’s counsel argued that no formal notice was served on the respondent because the case falls under an exceptional circumstance as provided for under the case laws. In otherwords, with an injunction being sought at the lower court, that there could have been no opportunity or room for settlement of parties in this case.

On issue No.2, in his oral arguments the learned counsel conceded the constitutionality of pre-action notice but that the authorities cited should not form a precedent in this matter in view of its peculiar nature. Counsel in support cited the case of Clement v Iwuayanwu (1989) 3 NWLR (Pt 107) page 39. That in view of the coercive nature of the respondent applying the principles stated in the authorities where pre-action notices are constitutional, the application of same would work injustice on the appellant who had no opportunity for any settlement but whose remedy lies in the court for an urgent injunction to be issued. That insisting on pre-action notice in this circumstance would be unconstitutional as it would deny the appellant an urgent remedy.

Counsel urged the court to therefore allow the appeal.

The learned respondent’s counsel Mr. Emeka Oji drew the court’s attention to their supplementary record filed on the 19th May, 2004. In adopting the issues, counsel related that while their issue NO.2 is the same as appellant’s issue 1, their issue no 1 is however different and predicated on ground 3 of the grounds of appeal.

Learned counsel on his oral substantiation of issue No. 1 emphasized the case of Mobil Producing (Nig) Unlimited v LASEPA 2002 (18) NWLR part 798 page 1. That the record of appeal showed that they did challenge the competence of the suit by preliminary objection at pages 55 – 56. That the trial court was right in striking out the action of the appellant for failure to meet the provision of section 26(1) of NAFDAC Decree 15 of 1993.

That contrary to the contention of the appellant’s counsel, the intention of pre-action notice did not deny their client access to court. That the appeal, he argued, should be dismissed therefore with costs.

With reference to the briefs of the parties, each has formulated two issues for determination. That of the appellant reproduced state as follows:-

(1) Whether the peculiar facts of this case constitute an exception to the judicial authorities that have held that non-service of a statutory pre action notice renders the suit incompetent.