The Nigeria Association of Patent and Proprietary Medicine Dealers (NAPPMED) have asked an Abuja Federal High Court to nullify the 2003 guidelines for issuing patent medicine vendors’ license.
Joined in the suit are the Health Minister, Pharmacists Council of Nigeria and the Attorney-General and Minister of Justice as first, second and third defendants, respectively.
NAPPMED, in an originating summons filed by its counsel, Mr. Val Igboanusi, accompanied by an affidavit by its national chairman, Mr Vincent Mamah, prayed the court to nullify the said guidelines.
It sought an order of perpetual injunction restraining the first and second defendants and all its branches from issuing patent and proprietary medicine vendors’ license under the 2003 guidelines.
NAPPMED also prayed the court for a perpetual injunction restraining the second defendant and its state branches from intimidating, harassing, arresting and/or closing its members’ shops or stores.
The association claimed that the issuance of guidelines on patent and proprietary medicines license in Nigeria was already enshrined under section 51 (2) of the Pharmacy Act, and covered by a judgment.
“The second defendant cannot prescribe any condition for the grant of any license, just by making some guidelines and cannot repeal or amend the provisions of Sections 51(2) of the Pharmacy Act.
“Therefore, the action of the first defendant is null and void and the conditions prescribed by him or delegated to the second defendant to do is null and void and ultra-vires his powers,’’ Auta had ordered.
NAPPMED said it had gone through a protracted legal battle with the defendants on the issue and judgment was delivered in its favour on September 24, 1996 by Justice Ibrahim Auta of the Federal High Court.
It said that following the judgment which was not appealed, it entered into agreement with the first defendant on Dec. 22, 1997, transferring the issuance of the license to state ministries of health.
The plaintiff said that in violation of the said agreement and judgment, in 2003, the second defendant re-issued the guidelines which were earlier nullified, yet the first defendant approved them.
“By the issuance of the same guidelines in 2003, the defendants have re-opened the issues decided by the court of competent jurisdiction delivered by Justice Ibrahim Auta on September 24, 1996,’’ Igboanusi argued.
The plaintiff’s counsel further contended that by virtue of Section 4 of the Nigerian 1999 constitution, as amended, legislative powers rest in the ambits of the National Assembly and State Assemblies.
“The Minister of Health and the Pharmacists Council cannot make laws or subsidiary legislation pertaining to issuance of patent and proprietary medicine’s vendors’ license in 2003, without first amending the law to confer on the such powers,’’ the plaintiff’s counsel stated.
He said that following the second defendant’s action, the plaintiff instructed its counsel, Mr Festus Okoye, to write to the third defendant (Minister of Justice) for his intervention but there was no response to the letter.
The plaintiff, therefore, prayed the court to set aside the guidelines issued in 2003 by the second defendant and grant all the reliefs contained in its originating summons.
However, in a counter-affidavit, the third defendant’s counsel, Mr Abdullahi Abubakar, in a preliminary objection, opposed to NAPPMED’s application and urged the court to dismiss the suit.
Abubakar said the court lacked the jurisdiction to hear, entertain or determine the suit, having regard to the provision of Section 59 of the Evidence Act 2011.
“My Lord, the jurisdiction of a court is confined, limited and circumscribed by the statute creating it and it is clear from Section 59 of the Evidence Act that this court lacks the jurisdiction to entertain this suit.
“It is trite law that a plaintiff cannot bring an action based on an issue or subject matter that has been competently and conclusively determined by a court of competent jurisdiction certainly and solemnly.
“This court cannot re-sit on a matter that it has decided even when the parties failed to comply with the terms of the judgment as long as the facts are similar and the parties are the same,’’ he said.
When the matter came up for mention, parties were told by a court official that the matter could not go on because Justice Gladys Olotu who is handling the case was recently suspended by the NJC.
The case was, therefore, adjourned to April 15 for mention.
