The presiding judge stated that the state was liable to be sued, and no sovereign immunity was required under the law.
The court further stated that the government failed in its responsibility to prevent the deaths of children who died of acute kidney injury after consuming contaminated medicines imported into the country.
It would be recalled that the parents of the AKI victims filed a suit against Maiden Pharmaceuticals, Atlantic Pharmaceuticals, the Medicines Control Agency, the Ministry of Health, and the Attorney General following the consumption of cough syrup manufactured by Maiden Pharmaceuticals, which led to the deaths of their children.
Lawyer Binga D., the legal representative of the Medicines Control Agency, the Ministry of Health, and the Attorney General, filed a motion seeking the court to dismiss the suit against the government. He argued that the Medicines Control Agency, the Ministry of Health, and the Attorney General were not liable to be sued unless sovereign immunity was waived, and that the High Court lacked jurisdiction over the plaintiffs’ claim.
In her submissions, counsel Yassin Senghore, representing the victims, sought a declaration from the court that the Medicines Control Agency (the third defendant) failed in its statutory duties to regulate the efficacy, quality, and safety of medicines and related products.
Additionally, counsel Senghore pointed out that the Medicines Control Agency was a corporate body that could sue and be sued, as it was established by the Medicines and Related Products Act, 2014.
Counsel Senghore further argued that the issue of jurisdiction had not been pleaded, thus offending the rules of pleadings.
She also argued that the common law authorities cited by counsel Binga D. were not binding on the court, and that section 211 of the 1997 Constitution was irrelevant to the issues before the court. She urged the court to dismiss the application with costs.
In his ruling, Justice Jaiteh stated that the state, as a party, was subject to all liabilities in tort, as if it were a private person of full age and capacity.
Justice Jaiteh added that seeking the consent of the state or claiming sovereign immunity did not apply in this jurisdiction and was of no consequence.
“It is a right that any person who is aggrieved and has a claim against the state can sue the state without seeking its consent, and the claim can be enforced as of right,” the presiding judge stated.
He further noted that it was alleged that the Ministry of Health failed in its oversight duties to ensure that medicines and related products on the market were safe for public consumption.
Justice Jaiteh declared that the Medicines Control Agency, the Ministry of Health, and the Attorney General were liable to be sued in tort, and no sovereign immunity was required under the law.
In conclusion, he stated that state policies were justiciable and capable of adjudication in civil litigation if they gave rise to a cause of action in tort against a servant or agent of the state.
He, therefore, ruled that the defendants’ application lacked merit and dismissed it with no order as to costs.
