The Supreme Court has sentenced two staff of Barewa Pharmaceutical Company Limited to seven years in prison over the deaths of at least 80 children as a result of an adulterated teething medicine in 2008. Justice Paul Adamu Galinje, who delivered lead judgement, upheld concurrent judgments of a Lagos High Court and the Court of Appeal which sentenced the two persons, Adeyemo Abiodun and Ebele Eromosele, to seven years imprisonment each for producing and selling the contaminated teething formula known as My Pikin.
The convicts were employees of the Barewa Pharmaceutical Company Ltd., Lagos. They were prosecuted by the National Agency for Food and Drug Administration and Control, NAFDAC. Both the High Court and the Court of Appeal found the duo that made My Pikin syrup guilty of conspiracy and sale of the adulterated teething mixture, which caused the death of more than 80 children in Nigeria.
After children started dying in 2008, the mixture was found to contain engine coolant. The paracetamol-based syrup, used for treating sore gums, was found to have been contaminated with diethylene glycol, used as an engine coolant. It caused the babies’ kidneys to fail. In unanimous judgement of Justices Olukayode Ariwoola, Kumai Bayang Aka’ahs, Amina Adamu Augie and Ejembi Eko of the Supreme Court delivered on February 2, 2018, the court ordered that the Barewa Pharmaceutical Company Limited be wound up and its assets forfeited to the Federal Government.
Justice Galinje who read the lead judgement stated, ‘’The law is settled that where the decision of a trial court is substantially based on the exercise of discretion, an appellate court will not interfere with the discretion unless the trial court failed to exercise discretion judiciously and judicially.
‘’In the instant case, the exercise of the trial court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. Since the discretion is always unfettered, this court cannot take steps to fetter such discretion, except for good and substantial reasons.
‘’The appeal herein is against the concurrent findings of the trial court and court of appeal with respect to the 4th count of the charge upon which the appellant was tried and convicted. It is therefore not in the character of this court to interfere with such findings. ‘’ For reasons I have alluded to herein, I decline to interfere with the sentence imposed on the appellant.
‘’Having resolved the vital issues against the appellant, this appeal shall be and it is hereby dismissed. The judgement of the trial court with respect to the 4th count of the charge, as affirmed by the court of appeal is further affirmed by me. Appeal dismissed; Justice Galinje held. The Court of Appeal, Lagos Division, on May 31, 2016 upheld the judgment of a high court, which sentenced the two employees to seven years imprisonment each for selling a killer teething syrup- “My Pikin”.
Justice Okechukwu Okeke of a Federal High Court in Lagos had sentenced Adeyemo Abiodun and Ebele Eromosele on May 17, 2013 for selling the syrup known as “My Pikin’’. The convicts were employees of the Barewa Pharmaceutical Company Ltd., Lagos. They were prosecuted by the National Agency for Food and Drug Administration and Control, NAFDAC.
Mr. 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. Mr. Okeke had ordered that the company should wind up and its asset forfeited to the federal government. Delivering the lead judgment in an appeal against Mr. Okeke’s judgment, Justice Dauda 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. He said that the prosecution provided a certificate of scientific evaluation from its laboratory, which clearly showed that the recovered products contained a toxic substance. “I am satisfied that the issue formulated by the respondents in their brief is all-encompassing, and sufficiently satisfies the issues raised in the appellants’ brief.
“The respondents stated that the appellants supplied batch 02008 of the teething syrup to Roka Pharmacy, which after recovery and scientific evaluation, contained a contaminant called dyethyleneglycol. “The appellants, upon discovery of the harm caused by the product, wrote a letter to Roka Pharmacy to stop sale and withdraw same from customers.
“At this time, about three and half cartons, 34 bottles of the products were left. “I cannot find any iota of denial from the appellants that they were not present when the recovered samples were being packaged at the respondent’s office. “They have also not challenged the accuracy or capacity of NAFDAC to carry out the scientific evaluation.
“The requirement of the law, in a matter of this nature, is the provision of a certificate of scientific evaluation, and this court is satisfied that the NAFDAC certificate, constitute sufficient scientific requirement to secure the conviction of the appellants.
“It is in this regard, that the seven years sentence on the convicts by the trial court, is hereby affirmed,” he held.
On the issue of winding up, the judge held that the order of the trial court which directed all asset of the company be forfeited to the Federal Government, was outside the provisions of the law.
“The Federal High Court may make orders for forfeitures, but such orders by the provision of the law, refers to finished goods.
“The appropriate order the court would have made is for batch 02008 of the product to be forfeited to the Federal Government and not the entire asset of the company.
“This appeal therefore succeeds in part; the order of forfeiture made by the trial court is hereby reversed. “It is hereby ordered that batch 02008 of the product be forfeited to the Federal Government,” Justice Bage said. The judgment of the appellate court was assented to by Justices Tijani Abubakar and Shagbaor Ikyegh. The convicts were re-arraigned before the lower court on January 7, and had pleaded not guilty.
In the trial, NAFDAC called a total of seven witnesses, while the appellants testified for themselves. The counsel to the appellants, Osaro Eghobamien, had appealed against the lower court’s judgment on June 26, saying that it lacked merit.
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