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Court Restrains NAFDAC, Others From Releasing Banned Chemical

Shola Soyele  
Updated November 18, 2019
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A Federal High Court Sitting in Lagos has restrained the National Agency for Food and Drug Administration and Control (NAFDAC) and eight others from deploying for public use, a banned chemical, methyl bromide.

Justice Oluremi Oguntoyinbo gave the order after a Senior Advocate of Nigeria, Olukayode Enitan who is representing a retired judge of the Osun State High Court, Justice Olamide Oloyede, told the court that NAFDAC had released the alleged dangerous chemical to the importer, Toon Consolidated Company Limited.

Justice Oloyede and a Non-Governmental Organization, Virtues Unlimited Restorative Justice Initiative (VURJI), are before the court, seeking an order to compel the Defendants to investigate, identify and destroy in a healthy and safe manner any methyl bromide-an odourless, colourless gas used to control pests in agriculture which has serious negative effect on humans and the environment.

They are also urging the court to declare that the alleged importation of the banned chemical substance into Nigeria by Toon Consolidated Company Limited pursuant to the license issued by NAQS without the permit of NAFDAC is unlawful and illegal.

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Apart from Toons Consolidated Company Limited, the other defendants affected by the interim Order are the Nigeria Agricultural Quarantine Services (NAQS), National Environmental Standards and Regulations Enforcement Agency, Nigeria Customs Service, Federal Ministry of Health, Ministry of Environment, the Ministry of Agriculture and the Ministry of Justice.

At the hearing of the case today, the counsel to the plaintiffs also told the court that he had filed an application for an interlocutory injunction seeking to stop the defendants from deploying the chemical for public use pending the determination of the suit.

The application could however not be moved because all the defendants present in court asked for time to respond to it.

Following the development, the counsel asked Justice Oguntoyinbo to issue an interim order to preserve the rest of the suit.

The senior lawyer alleged that NAFDAC had already released the ban methyl bromide to the importer after imposing a fine of N350, 000 on it.

He also alleged that NAFDAC issued a permit to the importer and backdated it after it was served with the processes in the case.

Enitan further claimed that the defendants have constructed a 40 feet container to serve as fumigating chamber where the chemical will be used.

He said that the court needs to protect Nigerians from the harmful effects of the chemical.

However, counsel to NAFDAC, B. Simon denied the allegations, stating that the agency issued the permit before it was served the processes.

On his part, lawyer to the Quarantine Services, O. A. Omasa, told the court not to grant the interim order because the country stands to lose millions of Naira.

The lawyer disclosed that the Chemical is now in the custody of the Quarantine Services and it has the capacity and expertise to manage its use.

He said that the agency allowed the importation of methyl bromide because it is used to preserve herbivore flower exported to Mexico.

In her ruling, Justice Oguntoyinbo granted the order, holding that all parties in the case must maintain the status quo until the hearing of the motion for interlocutory injunction.

Before adjourning the case to December 2, the judge warned that all the defendants must obey the order or be cited for contempt.

Background

In a 32 paragraph affidavit filed in support of the suit and personally sworn to by the retired judge, she claimed that the agro-chemical had been banned in Nigeria because it was dangerous to human health and caused environmental hazards by depleting the ozone layer.

The VURJI coordinator also averred that methyl bromide, when used as a fumigant and pesticide, exposes humans to severe injuries including lung damage because it is highly toxic.

Justice Oloyede also stated that due to the dangers it poses to humans and the environment, NAFDAC banned its importation and use as a fumigant in the country on February 20, 2019.

She, however, alleged that it came to the knowledge of the Plaintiffs that Toon Consolidated Company Limited was given a permit by NAQS to import 45 cylinders of methyl bromide into Nigeria and use same as a pesticide in the country.

The retired judge further stated that the current grant of permit of the use of methyl bromide, a banned chemical substance that is not permitted to be imported into Nigeria by NAQS to any person is ultra vires its powers, illegal and unlawful.

“I know for a fact that the continuous use of methyl bromide constitutes a hazard to the Nigerian public and stratosphere, and will eventually foist greater hardship on Nigeria a country currently dealing with other developmental issues,” she insisted.

The plaintiffs are therefore asking Justice Oguntoyinbo to determine whether NAFDAC is the agency of the Federal Government with the statutory functions and duties, among other things, to regulate and control the importation, distribution, sale and use of chemicals and grant authorization for the import of psychotropic substances, has the power to ban the importation of methyl bromide.

They also want the court to determine whether the power and functions of the Nigeria Agricultural Quarantine Service include the granting of a license for the importation of chemical substances into Nigeria.

Whether NAQS did not exceed its statutory authority, power and functions as provided under Nigeria Agricultural Quarantine Services (NAQS) Act, 2017 when it granted a license to the third Defendant to import 45 cylinders methyl bromide into Nigeria.

But in its counter-affidavit to the suit, NAQS asked the court to dismiss the case because the Plaintiffs do not have the locus standi to institute the action against the Defendant as it has not shown that it has sufficient interest or right which is not vague or intangible.

NAQS also maintained that the case of the Plaintiffs is hinged on mere suspicion and untruths against it and the entire gamut of the processes filed by the Plaintiffs before the court disclose no reasonable cause of action.

The federal agency also stated that the suit as presently constituted is an incompetent and flagrant abuse of Court Process.












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