Delese Mimi Darko, CEO of FDA
The High Court in Accra (General Jurisdiction) on July 29, 2024, ordered the Food and Drugs Authority (FDA) to pay a total of GH¢93,905,760.79 million to Tobinco Pharmaceuticals Ltd for the unlawful destruction of unexpired drugs belonging to Tobinco.
In 2014, the FDA confiscated pharmaceutical products imported to Ghana by Tobinco on grounds that the products were unwholesome.
In 2019, Tobinco sued FDA and asked the court to award cost against the FDA and declare its action as unlawful.
Tobinco, the plaintiff judgement creditor in the suit was represented by Mr Philip Addison, of Addison Bright Sloane, Barristers, Solicitors, Consultants, Accra.
In reaching a decision, the court presided over by Justice Audrey Kocuvie-Tay, declared that the wanton destruction of Tobinco’s unexpired products without obtaining any order from court was unlawful.
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 further declared that the order by the FDA prohibiting the sale of Tobinco’s products without obtaining an Executive Instrument from the Minister of Health was unlawful.
She declared that the actions of the FDA and its CEO in banning Bliss GVS Pharma Limited from importing drugs into Ghana without the issuance of an Executive Instrument (E.I.) by the minister was unlawful.
The judge held that that Tobinco did not import fake drugs into the Ghanaian market.
She declared that the unlawful conduct of the FDA and its CEO caused substantial damage and loss to the business of Tobinco.
The court said that the actions of the FDA in declining to register Tobinco’s drugs, confiscation of Tobinco’s drugs from customers, order for the arrest of Tobinco’s CEO and detention of Tobinco’s imported drugs at the Tema Port was an abuse of the FDA’s statutory powers and duties.
For these actions by the FDA which occasioned losses to Tobinco, the court ordered the FDA to pay special damage of GH¢24,003,157.20, being the total cost of Tobinco’s products which expired in warehouses.
The court also ordered for special damages in the sum of GH¢511,414.35, being the cost of expenses incurred by the plaintiff for demurrage.
It also ordered for special damages in the sum GH¢67,300, being the cost of expenses incurred in respect of bonded warehouses and for the payment of interest on the amounts stated above at the prevailing bank rates.
The court said that even though Tobinco did not indicate the commencement dates of the calculation of interests on the various amounts granted supra, evidence proffered gave indication of the dates of the occurrence of theinfractions and/ or losses as indicated against the amounts/reliefs granted as follows: GH¢24,003,157.20 from January, 2015, at the prevailing bank rate till date of final payment, and GH¢511,414.35 from November, 2015, at the prevailing bank rate till date of final payment.
The court awarded as cost GH¢67,300 from January, 2015 at the prevailing bank rate till date of final payment in addition to general damages GH¢5 million against the FDA for misfeasance.The court further awarded cost of GH¢1 million against the FDA favour of Tobinco.
The others include recovery of special damages in the amounts GH¢24,003,157.20, GH¢511,414.35 and GH¢67,300.
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