The Legal Battle of HIV Persons. 17/11/10
Tested positive to HIV despite the correct and consistent use of condoms
17 November 2010
In a seemingly comical twist, a group of young men and women who have tested positive to HIV despite the correct and consistent use of condoms recently dragged the Federal government, National Agency for Food and Drug Administration Control (NAFDAC), Federal Ministry of Health, the Federal Attorney-General and Minister of Justice, the Society for Family Health and others to the Federal High Court, Port-Harcourt. In their suit, the plaintiffs are claiming a whopping sum of 50 billion US Dollars as damages and other reliefs.
The plaintiffs are alleging that the defendants together with Family Health International, Contraceptive Research and Development, U.S.A and others used them to test the efficiency of a particular brand of condom that was new in the market, but tragically the condom failed, and consequently they became infected with HIV. Consequently the plaintiffs pray the court to restrain the defendants and their agents from further importation, distribution, and sale of condoms in Nigeria. The plaintiffs also pray the court to stop the fraudulent advertisement of condoms in Nigeria as prophylactics that protects the citizens from contracting AIDS.
While we refrain from commenting on the merit or demerit of the plaintiffs' suit since it is still pending in court, there are, however, many lessons to be learnt from the suit. One such lesson is that the use of human beings for unnecessary scientific experimentations oftentimes spells doom. A few years ago in Kano, Trovafloxacin (Trovan) product was tested on some innocent children and that spelt a huge human disaster.
The suit of the AIDS victims should therefore act as a wake up call on the various government agencies or institutions in Nigeria controlling, regulating, supervising, determining or guaranteeing the quality of products or consumer goods to live up to their respective responsibilities. It is simply scandalous that the Nigerian market is continuously littered with all sorts of harmful, sub-standard products and consumer goods with little or no quality regulation or control. Recently the Nigerian Customs Service (NCS) arrested and detained a Maersk line vessel, MV Nashville, heavily loaded with radioactive toxic waste as she safely berthed at the Tin-can Island Port, Apapa, Lagos.
In a normal market governed by the principles of demand and supply, the consumer ought to be the king, but unfortunately in the Nigerian market, the consumer has become an easy prey to all sorts of fraudulent market misrepresentations and deceptive adverts. Worse still, even when they are clear-cut regulatory policies to checkmate those misrepresentations and deceptions, some private organizations and NGOs with misguided high-profiteering motives deliberately go out to subvert them with impunity. For example, disturbed by the consistent failure of the condoms in Nigeria, the Advertising Practitioners Council of Nigeria (APCON) in 2005 promulgated a Code which stipulated that every condom sold or marketed in Nigeria must carry the following Health Warning Clause: "The condom is not 100 per cent safe. Total abstinence or faithfulness is the best option". But unfortunately some Nigerian NGOs are still fraudulently advertising condoms as offering "maximum protection" against AIDS. Besides, contrary to the National Broadcasting Commission (NBC) Code, some T.V and radio stations in Nigeria still air condom adverts before 8 p.m when children are still awake.
The law is well settled that commercial adverts offering a product in the market should refrain from exploiting the ignorance or gullibility of members of the public for personal monetary gain. As established in the old English case of Donoghue V Stevenson and applied by the Nigerian Supreme Court in 2008 in the case of Edward Okewjiminor & Ors v. Nigerian Bottling Company, G. Gbakrji & Ors, and in other notable cases, manufacturers of goods owe a duty of care to the ultimate consumer to ensure that the goods are free from harmful defects. Besides, a person who makes a fraudulent misstatement to another is liable in negligence for damages suffered as a result of reliance upon the misstatement.
Therefore we urge NAFDAC, APCON, NBC, Consumer Protection Council (CPC), Standards Organisation of Nigeria (SON) and other regulatory agencies in Nigeria to perform their regulatory duties effectively. Let every corruption be exposed no matter whose ox is gored. Human lives are precious. By bending the law and approving sub-standard and defective products for sale or advertisement in Nigeria, the lives of many consumers are placed in perpetual danger.