A Federal High Court sitting in Lagos on Monday has ordered the retraction of a letter and a publication dated October 30, 2023, written by Olaniwun Ajayi to the members of the public that the ex-parte order obtained by by Acouns Nigeria Limited in suit No. FHC/L/CS/1528/2023 (Acouns Nigeria Limited V. National Agency for Food and Drug Administration and Control & 7 Ors) on August 28, 2023, had expired despite the pendency of their application to set aside the same order.
Justice Kehinde Ogundare made made the order during his ruling on the arguments of counsel for the parties which he held January 25 and 31, 2024.
Acouns had obtained ex-parte orders from the Federal High Court on August 28, 2023, restraining Abbott companies from using the NAFDAC Registration/licence in respect of determine HIV ½ Test Kit to import the products into Nigeria pending the hearing of its interlocutory application for injunction on a later date.
On September 15, 2023, Abbott companies’ lawyers, Olaniwun Ajayi, filed an application to discharge the ex-parte order.
While their application to set aside, the order was pending before the court, a lawyer from the Firm of Olaniwun Ajayi made a publication dated October 30, 2023, to members of the public in which they affirmed that the order which they sought to set aside had expired.
Acouns’ Lawyers, Tayo Oyetibo, wrote to Olaniwun Ajayi, drawing their attention to a decision of the Court of Appeal in which it was held that an ex-parte order made pending the hearing of an application on notice would subsist until the application is heard and determined and requested a retraction of the letter which they stated was contemptuous of the court.
However, Abbott companies’ lawyers refused to withdraw the letter.
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Acouns’ lawyers then filed an application seeking, among other things, that Abbott companies’ lawyers should be mandated to retract the letter from circulation.
On January 25, and 31, 2024, the court heard arguments of lead counsel for Acouns Nigeria Limited, Tayo Oyetibo, SAN, a appearing with Adeyinka Adegbite and Henry Ligari, and those of counsel for Abbott companies, Oluseye Opasanya, SAN, and adjourned the matter to February 26, 2024, for ruling on the application.
In its ruling, the court agreed with the submissions of Oyetibo and held that the publication dated October 30, 2023, by the Abbott companies’ lawyers, Olaniwun Ajayi, constituted an affront to the authority of the court because it was made while their application to set aside the ex-parte order was pending.
The court, therefore, ordered them to publish a retraction letter withdrawing that letter from circulation, including a statement that their affirmation that the ex-parte order had expired was wrongfully made.
The court also ordered that the retraction which should be filed in court and served on Acouns Nigeria Limited within seven days from the date of the order and ordered that Abbott will not be heard on any application unless and until they have complied with the orders of the court.
The court then awarded the sum of N250,000 against Abbott in favour of Acouns Nigeria Limited and adjourned the matter to May 20, 2024, for hearing of pending applications.
