The High Court in Accra (General Jurisdiction) issued a ruling on July 29, 2024, ordering the Food and Drugs Authority (FDA) to compensate Tobinco Pharmaceuticals Ltd with GH¢93,905,760.79 for the illegal destruction of the company’s unexpired drugs.
In 2014, the FDA seized pharmaceutical products imported by Tobinco, claiming that they were unfit for consumption.
Tobinco filed a lawsuit against the FDA in 2019, seeking damages and a declaration that the FDA’s actions were unlawful.
Represented by Mr. Philip Addison of Addison Bright Sloane, Barristers, Solicitors, and Consultants in Accra, Tobinco, the plaintiff and judgment creditor, argued the case.
The court, under the leadership of Justice Audrey Kocuvie-Tay, concluded that the FDA’s destruction of Tobinco’s unexpired products without a court order was illegal.
The court again declared that “the unlawful lockup of Tobinco’s warehouses by the FDA and bad media publicity by the FDA resulted in the massive expiration of Tobinco’s products between June 2014 and August 2015.”
Justice Kocuvie-Tay also ruled that the FDA’s directive prohibiting the sale of Tobinco’s products without an Executive Instrument from the Minister of Health was unlawful.
She further stated that the actions taken by the FDA and its CEO to ban Bliss GVS Pharma Limited from importing drugs into Ghana without the issuance of an Executive Instrument (E.I.) by the Minister were also illegal.
The judge affirmed that Tobinco did not import counterfeit drugs into the Ghanaian market.
She declared that the FDA and its CEO’s unlawful actions inflicted significant harm and financial loss on Tobinco’s business.
The court determined that the FDA’s refusal to register Tobinco’s drugs, the confiscation of Tobinco’s products from customers, the order for the arrest of Tobinco’s CEO, and the detention of Tobinco’s imported drugs at Tema Port constituted an abuse of the FDA’s statutory authority.
As a result of these actions, which caused Tobinco to suffer losses, the court ordered the FDA to pay special damages amounting to GH¢24,003,157.20, representing the total cost of Tobinco’s products that expired in warehouses.
Additionally, the court ordered the FDA to pay special damages of GH¢511,414.35 to cover the demurrage costs incurred by the plaintiff.
The court also awarded special damages of GH¢67,300 to cover expenses related to bonded warehouses, along with interest on the aforementioned amounts at prevailing bank rates.
Although Tobinco did not specify the start dates for calculating interest on the various awarded amounts, the evidence presented indicated the dates when the infractions or losses occurred. The court awarded GH¢24,003,157.20 from January 2015, GH¢511,414.35 from November 2015, and GH¢67,300 from January 2015, all accruing interest at the prevailing bank rate until final payment.
In addition to general damages of GH¢5 million for misfeasance, the court ordered the FDA to pay Tobinco GH¢1 million in costs.
These amounts include the recovery of special damages totaling GH¢24,003,157.20, GH¢511,414.35, and GH¢67,300.