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$21bn tobacco suit: Court dismisses companies’ prayers

JUSTICE Bukola Raliatu Adebiyi of a Lagos State High Court has dismissed an application filed by
the International Tobacco Company limited, British American Tobacco Plc and British American

Prof. Yemi
Prof. Yemi

Tobacco (investment) Limited, asking the court to strike their names from the $21 billion suit instituted by the Lagos State Government and Environmental Rights Action/Friends of the Earth, Nigeria (ERA/FoEN). In her ruling on the Notice of Preliminary Objection brought by the three tobacco companies Justice Adebiyi held that the companies are necessary parties to the suit and that their presence now be necessary to enable the court effectively and completely adjudicate on the suit filed by the Lagos state government with some non-governmental agencies.

The three companies had under Order 3 Rule 9 and Order 6 Rule 10 of the Lagos State [Civil Procedure] Rules 2004 and Section 98 and 99 of the Sheriffs and Civil Process Act. Cap 56, 2004, asked the court to strike their names as parties to the suit and that the court lacks the jurisdiction to entertain the suit.

The Judge held, “The court finds upon careful perusal of the Statement of Claim that in the 3rd and 4th defendants are necessary parties to the suit as the presence will be necessary to enable the court effectively and completely adjudicate upon and settle all the questions in controversy.

“Following from the above reasoning,  the court finds that the suit against the 2nd, 3rd and 4th defendants are not liable to be struck out. In accordance with the above findings the applications of the 2nd, 3rd, and 4th defendants fail in their entirety and are accordingly dismissed.” The main suit was filed by the former Attorney-General of Lagos State, Professor Yemi Osinbajo (SAN) on behalf of the State Government and the Environmental Rights Action/Friends of the Earth, Nigeria.

The defendants in the suit are: British American Tobacco (Nigeria) Limited, International Tobacco Limited, British American Tobacco Plc, British American Tobacco (Investment) Limited, Philip Morris International, and the Tobacco Institute. They had in their applications sought an order of court setting aside the purported issuance of the Writ of Summons filed it relates to the 2nd, 3rd, and 4th defendants 2nd defendants respectively.

In addition they also sought for an order setting aside the service of the Writ of Summons and other processes filed in this Suit on them and for and for such further order(s) as the court may deem fit to make in the circumstances.   The government’s suit was seeking different reliefs among others asking the court for an order to regulate tobacco smoking especially as it affects youth and under-aged smokers, especially in the state.

The government averred  that on several occasions the tobacco companies have agreed that tobacco smoking has severe health implications including but not limited to cancer, cardiovascular and pulmonary complications and that in spite of the obvious knowledge of the adverse effect of their product, “the defendants have surreptitiously and fraudulently targeted young and under-aged persons in their advertising and marketing.

“That through the use of market surveys and sophisticated advertising, the defendants have utilized such means as music, cinema and fashion, to attract and addict young and underage persons into smoking.” “The mandatory health warnings inscribed on the pack is ineffective as the defendants promote a retail strategy of sale by the stick (the individual sticks that most consumers purchase have no such warning).

This retail strategy is also a significant causal factor of youth smoking as it encourages easy access to the products. “That on account of legal action, liability, and stricter control measures in the developed world such as the United States (where big tobacco companies and their lobby arms were mandated to pay compensatory damages of $260 billion to State Governments for public health costs).”

They further argued that  the Defendants have turned their focus to the developing world with Nigeria being a top priority. The applicants argued that while there is a significant decline in the smoking rates in the developed world with diminishing health concerns, in the developing world such as Nigeria, smoking increases at least by 20 per cent annually.


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