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BAREWA PHARMACEUTICALS LIMITED v. FEDERAL REPUBLIC OF NIGERIA

(2019) LPELR-47385(SC)

In The Supreme Court of Nigeria

On Friday, the 12th day of April, 2019

SC.530/2016


Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria


Between

BAREWA PHARMACEUTICALS LIMITED - Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on the offence of dealing in counterfeit, fake and dangerous drugs.

FACTS:
The appellant was arraigned at the Federal High Court, Lagos, along with Adeyemo Abiodun and Egbele Austin Eromosele, on a six counts charge of various offences under the counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C 34 Laws of the Federation of Nigeria 2004, and Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004. They pleaded not guilty to the charge.

The prosecution's case was that, appellant was involved in the manufacture, distribution and sale of "My Pikin Baby Teething Mixture in Nigeria". Sometime in 2008, the Chief Pharmacist of Ahmadu Bello University Zaria, reported to Hauwa Keri, a Director of Establishment inspection, with National Agency for Food and Drugs Administration and Control (NAFDAC), that some children died after taking a syrup called My Pikin. Hauwa Keri in turn reported to the Director-General, NAFDAC, Professor Dora Akunyili, who instructed her to carry out investigations. She set up a team made up of NAFDAC Inspectors who were able to retrieve the remnants of the syrup. Preliminary investigation showed that the drug that was common to all the children that died was "My Pikin", and that all the children presented the same symptom of renal failure, characterized by the inability to pass urine. ???Remnants of the drugs were also collected from Lagos University Teaching Hospital and University College Hospital Ibadan. It was the initial result of the test that led NAFDAC to seal up the Appellant. At the end of its investigation, it was discovered that the drug contained a contaminant, Diethylene Glycol. The case was transferred to the Department of Enforcement, because the Appellant and its directors were involved in the illegal chemical marketing.

In order to prove its case, the prosecution called seven witnesses and tendered several documents which were admitted in evidence. Mr. Egbele Austin Eromosele was the only witness that testified for the defence. At the end of the trial, Okeke. J. of the trial Court, found the Appellant and the two other accused persons guilty of the offence under counts 3 and 4 of the amended charged and they were all convicted accordingly. ???The Appellant, being a company, was ordered to be wound up and its assets forfeited to the Federal Government of Nigeria, while the two other convicts were each sentenced to seven years imprisonment on each of the two counts. The sentences were ordered to run concurrently. They were however acquitted and discharged of the remaining counts.

Appellant appealed to the Court of Appeal, which allowed the appeal in part. The conviction for conspiracy to sell dangerous drugs, under count three of the charge, was set aside. Conviction for sale of dangerous drugs under count four was affirmed. The order for winding up and forfeiture of the assets of the appellant was also set aside, and Appellant was sentenced to a fine of One Million Naira (N1,000,000.00). 

Further dissatisfied, appellant appealed to the Supreme Court.

ISSUES:
Appellant submitted the following issues for determination:
"1. Whether the reliance of the lower Court on grounds other than those contained within the judgment of the trial Court in affirming the conviction of the Appellant for sale of dangerous drugs, amounts to a denial of the Appellant's right of fair hearing.
2. Whether the lower Court relied on unproven assumptions and consequently misdirected itself in reaching the conclusion that any of the products in circulation in Nigeria with the brand name "My Pikin" are the ones manufactured by the 3rd accused; thereby occasioning a miscarriage of justice.
3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the Appellant, in the absence of any reason or basis for the discretion.
4. Whether the lower Court failed to consider the issues properly canvassed before them, and thereby occasioned a miscarriage of justice.
5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt.
6. Whether the lower Court erred in finding the Appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the Appellant guilty of conspiracy to sell dangerous drug."
DECISION/HELD:
In the final analysis, the Supreme Court dismissed the appeal and affirmed the decision of the Court of Appeal.


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