Barewa Pharmaceuticals Limited V. FRN: Defence’s Acquittal Plea May Be Sustained on Substantial Contradictions in Prosecution Witness’ Evidence | Independent Newspapers Limited
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Barewa Pharmaceuticals Limited V. FRN: Defence’s Acquittal Plea May Be Sustained on Substantial Contradictions in Prosecution Witness’ Evidence

Barewa Pharmaceuticals
Posted: Aug 3, 2016 at 7:08 pm   /   by   /   comments (0)

In late 2008, the then late Prof. Dora Akunyili-led National Agency for Food and Drugs Administration and Control (NAFDAC) came out to alert a rather bewildered nation that a certain drug under the trade name “My Pikin Teething Syrup” was in circulation and had been fingered in the death of some little children in parts of the country. It added that anyone in possession of the medicine should quickly freeze use and return it to the closest receptacle centre then provided by the Agency. The drug’s manufacturer, Barewa Pharmaceuticals Ltd., and its principal officers were arraigned before a Federal High Court in Lagos, presided over by now retired Justice Okechukwu Okeke. In its ruling, the defendants were convicted for conspiracy and manufacturing and selling adulterated drug as charged. Upon appeal, the appellate court sustained the lower court’s verdict convicting the appellant for manufacturing and selling adulterated drug; while however acquitting them of the charge of conspiracy. Here reported are the reasons that informed the appellate court’s decision in the suit.


In The Court of Appeal of Nigeria

On Tuesday, 31st of May, 2016



Before Their Lordships

Chinwe Eugenia Iyizoba (JCA) (Delivered the Leading Judgment)

Yargata Byenchit Nimpar (JCA)

Jamilu Yammama Tukur (JCA)




Barewa Pharmaceuticals Limited …………………….. Appellant


Federal Republic of Nigeria ……………………………… Respondent


Case reviewed by: STEPHEN UBIMAGO

Facts of the Case:

Sometime in October 2008, the appellant, Barewa Pharmaceutical Limited, and two others, Adeyemo Abiodun and Egbele Austine Eromosele, manufactured, distributed and sold a drug, “My Pikin Baby Teething Mixture,” which was adulterated/contaminated with Diethylene Glycol, to ROCA Pharmacy, Agege, Lagos.

This allegedly led to the death of the child of one Njoku Chidi Bright and other children as well after taking the suspected adulterated product.

They were thus arraigned at the Federal High Court in Lagos on an amended six count charge bordering on conspiracy and of manufacturing, distributing and selling of adulterated drug and thereby committed an offence contrary to the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act as well as the Miscellaneous Offences Act, Laws of the Federation of Nigeria, 2004.

Trial proceeded before Okeke J of the Federal High Court, Lagos Division.

The Prosecution called seven witnesses. The Appellant as the 2nd accused person testified as DW1 and is the only witness for the Defence.

Exhibits were tendered and admitted in evidence. Final addresses were filed and duly adopted. In its judgment delivered on 17/05/13, the Lower Court discharged and acquitted the Appellant and the two other accused persons on Counts 1, 2, 5 and 6 but convicted them on Counts 3 and 4.

They were sentenced to seven years imprisonment on each of counts 3 and 4, the terms to run concurrently.

The Court ordered that the assets of the 3rd accused Barewa Pharmaceuticals Ltd be wound up and forfeited to the Federal Government of Nigeria.

Dissatisfied with the judgment, the Appellant and his co-accused filed separate notices of appeal on 3/7/13.

It is pertinent at this point to mention that judgment had earlier been delivered by this Court in this appeal on the 31st day of December, 2013 coram S.D. Bage, S.J Ikyegh and Tijjani Abubakar JJCA affirming the judgment of the Lower Court.

All the Appellants appealed to the Supreme Court. It turned out that the judgment was based on an abandoned Notice of Appeal filed on 26/6/13 instead of the valid Notice of Appeal filed on 3/7/13.

The Supreme Court consequently declared the judgment a nullity and remitted the appeal back to this Court for hearing de novo on the valid Notice of Appeal filed on 3/7/13.

Issues for Determination:

  1. Whether the Lower Court made a finding, based on scientific evidence that the drug “My Pikin Baby Teething Mixture” with Batch No 02008 was dangerous, which therefore supports the conviction of the appellants?
  2. Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.
  3. Whether the trial Court was right in convicting the 3rd Appellant and consequently ordering that it be wound up and its asset forfeited to the Federal Republic of Nigeria.


Batch 02008 of “My Pikin” is what has been found to be dangerous. Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drugs.

It is obviously unlikely that PW4 will collect what he did not supply and equally unlikely that the wholesalers would release to PW4 goods not purchased from him.

There is no reason for a trader to offer up to PW4 drugs not purchased from PW4. The argument of counsel defies logic and is contrary to common course of human reaction to such a situation.

Besides as earlier stated, the drug in question is the product of the Appellant Barewa Pharmaceutical Ltd. The company alone manufactures products with the brand name. No other pharmaceutical company in Nigeria manufactures products bearing that brand name.

The Appellant knew their distributors and the distributors knew their customers to whom they supply the drugs. Indeed the Appellant and his co-accused did not deny in their statements or oral evidence that the products were their own.

They had identified the drugs as theirs. The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances.

Appellant’s contention is obviously a case of pleading to allow fanciful possibilities deflect the course of justice. All the drugs retrieved by PW4 had been duly sampled and surrendered to NAFDAC.

Besides as earlier stated, the Appellant is the only manufacturers of the drug. They identified the products as their own. The possibility of substituting the samples with another is nonexistent.

There was no doubt whatever that the samples are same as the ones retrieved by PW4 who confirmed the samples.

The attempt by learned counsel to challenge the authenticity of the drugs at this point is surely on afterthought as no effort was made to adduce evidence to the contrary or to challenge the evidence of PW4 during trial.

PW6, Segun Mamodu, Deputy Director and Head Central Drug Laboratory, NAFDAC Yaba testified that the sample of a product labeled and sealed as My Pikin Baby Teething Mixture Batch no. 02008 manufactured by the Appellant was brought to their laboratory by the Investigating Police Officer from NAFDAC Enforcement Directorate for analysis.

It was found that it contained Diethylene. The sample was taken to their sister Laboratory Oshodi for confirmatory tests. He prepared a Laboratory Report which was admitted in evidence as Exhibit T.PW7: Anikoh Musa Ibrahim the analyst in NAFDAC Laboratory Oshodi also found that the sample was contaminated by Diethylene Glycol.

One of the complaints of the Appellant is that the Report of PW6 was hearsay because the analysis was not carried out personally by PW6 but by one Adekunle Segun Olawole, the head analyst under PW6. This argument in my view is misconceived. Adekunle worked under the direct supervision of PW6. Whatever is done in that Department under the supervision of PW6 is his act as the head of the Department.

The truth of the matter is that throughout the entire gamut of the evidence led in this case, the appellant and his co-accused persons did not at any point deny their presence during the packaging of the samples or the fact that the drug My Pikin Baby Teething Mixture batch 02008 was manufactured by the appellant.

They knew and accepted that there was a problem and they were as anxious as NAFDAC to withdraw the drugs from the market to avoid further loss of life.

I agree with learned senior counsel for the Respondent that based on these certificates emanating from NAFDAC laboratories in Yaba and Oshodi, the sample was contaminated with the contaminant Diethylene Glycol.

I join the Respondent in asking “what other scientific evidence or proof could be more sufficient and convincing given the provision of Section 55(1) and (2) of the Evidence Act.

I have shown in this judgment so far that the identity of the product given to the analysts was the same as the one actually analyzed.

I have also shown that the process of sampling all the way to the tendering of the products in Court was unbroken and that the integrity of the sampling cannot rightly be questioned.

The appellant Barewa Pharmaceutical is the only manufacturer of the mixture duly registered with NAFDAC. There did not appear to be any Possibility of the drugs being substituted with another. There is no question of the chain snapping and a reasonable doubt arising.

Issue one is resolved in the affirmative against the Appellant.

On issue 2, contrary to the contention of learned counsel for the Appellant, there are no substantial contradictions in the evidence of PW7, PW3 and PW5.

On issue 2, contrary to the contention of learned counsel for the Appellant, there are no substantial contradictions in the evidence of PW7, PW3 and PW5.

On the discrepancy relating to PW7 referring to the sample as “My Pikin paracetamol Syrup” as against “My Pikin Baby Teething Mixture,” I agree with learned senior counsel for the Respondent that it is a mere discrepancy resulting from failure of human memory which cannot lead to the setting aside of the judgment of the Lower Court.

It is only when the contradictions in the evidence of witnesses called by the prosecution are substantial and fundamental to the main issues in question as to create doubts in the mind of the Court that an accused person may be entitled to an acquittal. See the cases of Isibor v. State (2002) 9 NSCC 248 @ 254; Ndike v. State (1994) 8 NWLR (pt. 360) 33.

The discrepancies here are conceivably within the margin of human error.

Did the accused persons conspire among themselves to sell dangerous drugs to wit My Pikin Baby Teething Mixture to Roca Pharmacy? The evidence did not disclose any such agreement.

Can an inference of such an agreement be drawn from the evidence led in this case? The actual reasoning of the Lower Court in reaching its judgment is at pages 365 – 369 of the printed record.

The Court did not evaluate the evidence led by each side of the divide on the matter of conspiracy before convicting the accused persons on count 3.

The learned trial judge was consequently wrong to have convicted the appellant and his co-accused on count 3 of the charge.

Issue 2 is resolved against the Appellant, while Issue 3 is consequently resolved in favour of the Appellant. In place of the order for winding up of the appellant, a fine shall be imposed.