The Court of Appeal, Lagos, has again upheld the judgement of a Lagos high court, which sentenced two employees of Barewa Pharmaceutical Company limited to seven years imprisonment each for selling a killer teething syrup- “My Pikin”
The appellate court in its unanimous decision delivered on Tuesday held that the complaint of the appellants was without merit, adding that “throughout the gamut of the trial, the appellants never denied that they were the manufacturers of the contaminated drug-” My Pikin” teething syrup.
The appellate court had in 2013 delivered a judgement on the appeal but the Supreme Court, faulted the judgement on the ground that it was determined on an abandoned notice and grounds of appeal.
Justice Bode Rhodes-Vivour, who wrote the lead judgments then ordered that the appeal be remitted to the Court of Appeal, Lagos, for it to hear the appeals on the “valid notice/grounds of appeal” filed on July 3, 2013.
So, in its fresh judgement delivered on Tuesday, Justice C.E Iyozoba (Mrs) affirmed the conviction, and held that samples of the contaminated drug were tested in laboratory, and that the process was clear and smooth.
Justice Iyozoba held that there was no need for additional scientific evidence being requested by the appellants.
“The drug in question is manufactured alone by the appellants. No other pharmaceutical company produce the drug. So, any of the product in Nigeria is manufactured by the appellants.
“There was no contradictory evidence as both the appellants and respondent confirmed that the contaminated drug, was manufactured by the appellants”, the court held.
Other Justices on the panel are; Justice Y. Nimpar and Justice J.Y Tukur.
The court however held that the lower court was wrong when it convicted the appellants on the offence of conspiracy, adding that the prosecution did not establish any evidence showing that the appellants conspired to manufacture and distribute contaminated drugs.
Consequently, the court set-aside their conviction on conspiracy but added that it will not have any effect on the 7 years sentence since the jail term will run concurrently.
The court stated that the issue of sentencing is at the discretion of the trial judge as long as it’s done judicially and judiciously.
The court also set aside the order of the lower court winding up the company, and the order of forfeiture of assets to the Federal Government.
The court held that Section 118(b) of the miscellaneous offences Act did not empowered the trial judge to wound-up the company and order furniture of its assets.
The Court further held that what the trial judge ought to have done was to order forfeiture of the contaminated drugs and not the company.
However, the court imposed N1 million fine against the appellants.
Justice Okechukwu Okeke of a Federal High Court in Lagos had sentenced Adeyemo Abiodun and Ebele Eromosele on May 17 for selling the syrup known as “My Pikin’’.
The convicts were employees of the Barewa Pharmaceutical Company Limited Lagos. They were prosecuted by the National Agency for Food and Drug Administration and Control, NAFDAC.
Justice Okeke found the duo guilty of conspiracy and sale of the adulterated teething mixture, which caused the death of more than 80 children in Nigeria.
The court had ordered that the company should wind up and its asset forfeited to the Federal Government.
Dissatisfied, the appellants urged the Court of Appeal to set aside the entire judgement.
But in its judgement delivered by Justice Sidi Bage affirmed the seven years sentence, but reversed the order for winding up and forfeiture.
The judge held that the prosecution sufficiently proved that the men committed the offences
But, the Supreme Court Supreme Court faulted the judgment of the Court of Appeal, Lagos, which upheld their conviction.
In its unanimous judgment the apex court faulted the decision of the Court on the ground that it determined the convicts’ appeals on an abandoned notice and grounds of appeal.
Justice Bode Rhodes-Vivour, who wrote the lead judgements then ordered that the appeals be remitted to the Court of Appeal, Lagos for it to hear the appeals on the “valid notice/grounds of appeal” filed on July 3, 2013.
Justice Rhodes-Vivour noted that, of all the issues raised in the appeals, it was discovered that issue two was a threshold issue, to the effect that the Court of Appeal, Lagos division abandoned the operative notice of appeal and relied on the abandoned notice of Appeal.