A Federal High Court, Calabar, Cross River State, has affirmed the powers of the National Agency for Food and Drug Administration and Control (NAFDAC) to regulate and control the exportation, importation, manufacture, advertisement, distribution, sale and use of chemicals in Nigeria.
Justice Justice E. A. Obile, made the affirmation while delivering judgment on a suit filed against the agency by Cement Company of Nigeria Limited (UNICEM), held that Section 5(a) of the NAFDAC Act, it is clear and indisputable that NAFDAC has powers to regulate use of food, drugs, cosmetics, medical devices, bottled water including chemicals. Justice Obile held that cement clinker is a chemical.
The Plaintiff, UNICEM, a cement manufacturing company brought an action against NAFDAC on 22nd of September, 2011 claiming amongst other reliefs that NAFDAC lacks the powers under the National Agency for Food and Drug Administration and Control (NAFDAC) Act to regulate the importation or exportation of Portland cement clinker ‘clinker’ as same is not a chemical for the purpose and intendment of the NAFDAC Act.
At the proceedings, the Plaintiff argued that NAFDAC lacks the powers to regulate the importation of cement clinker as same is not a chemical. The Plaintiff further argued that the word ‘chemical’ as stated in Section 5(a) of the NAFDAC Act must by necessary implication refer only to pharmaceutical chemicals.
According to the Plaintiff, any attempt by NAFDAC to regulate non-pharmaceutical chemicals will clearly usurp the functions of other well-known regulatory agencies of the Federal government. Arguing for NAFDAC, Adedapo Tunde-Olowu, maintained that cement clinker and that the powers of NAFDAC to regulate and control the exportation, importation, distribution, sale and use of ‘chemical’ extends to all forms of chemical and is not limited to only pharmaceutical chemicals.
He urged the court to give Section 5(a) of the NAFDAC Act its plain, clear, positive, direct and unambiguous and should therefore be given its ordinary meaning.
However, the court considered the functions and powers of NAFDAC as enshrined in Section 5(a) of the NAFDAC Act which provides that “NAFDAC shall have the following functions, that is, to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals.”
He agreed with Mr. Adedapo Tunde-Olowu that there is no ambiguity in Section 5(a) of the NAFDAC Act and same must be given its simple and ordinary grammatical meaning.
The Court resolved that going by Section 5(a) of the NAFDAC Act, it is clear and indisputable that NAFDAC has not exceeded her designated powers as it is empowered to regulate and control the importation, exportation, distribution, manufacture, advertisement, sale and use of food, drugs, cosmetics, medical devices, bottled water including chemicals.
In discountenancing the argument of the Plaintiff, Justice E. A. Obile held that any attempt by the Court to state which chemical NAFDAC is to control or regulate will amount to amending the statute which the Court clearly lacks the power to do. Justice E. A. Obile dismissed the claims of the Plaintiff for being unmeritorious and lacking substance.
