The plaintiff had sought to stop the implementation of a national policy on HIV and the use of condoms.
NAFDAC told the court that the suit brought by the plaintiffs lacked competence.
The drug agency’s lawyer, Mr. Sebastine Hon (SAN), in a preliminary objection brought pursuant to section 27 of the NAFDAC Act, argued that section 97 of the Sheriffs and Civil Process Act and the inherent powers of the court rendered the writ of summons by the plaintiffs incompetent.
The plaintiffs, Mr. Sunday Emmanuel, Mr. Rosemary Ndifon, Mr. M.G. Bendi, HIV Research, Information and Treatment Foundation and nine others, had gone to court to restrain the government and its agencies from further importation, distribution and sales of condoms for the purpose of prevention of HIV/AIDS in the country.
But Hon noted that the issue for determination was whether the court had jurisdiction over the case, considering the inability of the plaintiffs to comply with the provisions of section 27 (1) and (2) of the NAFDAC Act, 2004 and section 97 of the Sheriffs and Civil Process Act, 2004.
According to the NAFDAC lawyer, the plaintiffs contravened the law by filing the suit before the court without issuing a pre-action notice to the agency, which is the third defendant in the matter.
Hon maintained that the plaintiffs neither issued nor served the required pre-action notice on the agency before instituting the suit.
“The provisions of section 27 are clear, direct and based on this, the failure of the plaintiffs to adhere to the Act renders their action incompetent, no matter how well conducted,” he argued.
The senior advocate recalled a similar case between NDC Limited and ASWB was voided by the Supreme Court because NAFDAC was not served with the mandatory notice before the commencement of the suit.
The defendant in the case are the Federal Ministry of Health, National Agency for the Control of AIDS, NAFDAC, Attorney-General of the Federation and Minister of Justice, Society for Family Health, Family Health International, You Need Us Corporation and Contraceptive Research and Development, USA.
However, Justice Gladys Olotu adjourned the matter till January 20, 2011 for further hearing.
SOURCE:PUNCH
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