Court stops Abbott Group of companies from importing HIV test kit into Nigeria

A Federal High Court sitting in Lagos has prohibited Abbott Group of companies, a multinational pharmaceutical group headquartered in Ireland, from importing Determine HIV Test kit into the country.

Justice Akintayo Aluko ruled that the order subsists pending the determination of the application on notice filed by a Nigerian firm, Acouns Nigeria Ltd.

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

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

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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 the territory of 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, granting 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 popularize the product in Nigeria and that Abbott was liable to it in a total sum of $186million, adding that Abbott has failed to pay the money despite demands for same.

Acouns approached the court seeking an order banning Abbott from using Acouns’ NAFDAC Registration to import the product Determine HIV 1/2 Test kit.

On 28th August, 2023, Tayo-Oyetibo told the court 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 Determine HIV 1/2 Test kit pending the determination of the application on notice.

The judge further commanded Abbott and its affiliates to appear before the Court to answer the suit filed by Acouns 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.