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Court stops firm from importing HIV test kit into Nigeria

By Joseph Onyekwere
29 August 2023   |   8:03 pm
Justice Akintayo Aluko of the Federal High Court, Lagos has restrained Abbott Group of Companies, a multinational pharmaceutical group headquartered in Ireland, from importing a Determine HIV Test kit into Nigeria.

Judge’s gavel PHOTO: Getty Images / Photodisc

Justice Akintayo Aluko of the Federal High Court, Lagos has restrained Abbott Group of Companies, a multinational pharmaceutical group headquartered in Ireland, from importing a Determine HIV Test Kit into Nigeria.

The judge ruled that the order subsists pending the determination of the application on notice filed by a Nigerian firm, Acouns Nigeria Limited.

Acouns filed the suit through its counsel, Mofesomo Tayo-Oyetibo of Messrs Tayo Oyetibo LP in suit marked FHC/L/CS/1528/2023.

The company alleged that it executed a distribution agreement with Abbott Group under which it has an exclusive right to import, distribute, advertise, and promote a particular product manufactured by Abbott and/or its affiliates.

The product is known as Determine HIV 1/2 Test Kit.

The Agreement also included the right of Acouns to obtain the relevant statutory licence and permit to bring the product into Nigeria.

In furtherance of this right, Abbott executed a power of Attorney in favour of Acouns pursuant to which Acouns obtained a NAFDAC registration certificate for Determine HIV 1/2 Test kit to be imported into Nigeria, which granted it exclusive right to import the product using the Certificate of Registration in its name.

The distribution agreement was renewed in 2020 and it allegedly entitled Acouns to compensation if Abbott should terminate the agreement before Acouns can transfer its NAFDAC registration to Abbott.

However, sometime in 2023, Abbott issued a letter unilaterally terminating the agreement and also refused Acouns’ demand for payment of compensation in line with the terms of the distribution agreement between the parties.

Acouns claimed in its statement of claim that it used its best endeavours to popularise the product in Nigeria and that Abbott was liable to it in a total sum of $186 million, adding that Abbott has failed to pay the money despite demands for it.

Acouns approached the court seeking an order banning Abbott from using Acouns’ NAFDAC Registration to import the product.

Tayo-Oyetibo told the court yesterday that if Abbott was not restrained, it would continue to import the Determine HIV 1/2 Test kit without Acouns’ consent.

He argued that it was a criminal offence to import a pharmaceutical product into Nigeria without NAFDAC registration and that the court had inherent jurisdiction to prevent a crime from being committed.

He, therefore, prayed the court to grant the injunction pending the determination of the application on notice.

Justice Aluko agreed with Tayo-Oyetibo’s submissions and ordered that Abbott and its affiliates must not import the Determine HIV 1/2 Test kit pending the determination of the application on notice.

The judge further ordered Abbott and its affiliates to appear before the Court to answer to the suit filed against them.

He adjourned till October 30, 2023 for the hearing of another application filed by Acouns against NAFDAC, Customs and Abbott and its affiliates in the matter.

 

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