Businessman challenges court ruling on Food and Drug’s refusal to clear condensed milk

A notice of appeal was on Monday filed to contest the ruling by Chief Justice (ag) Yonette Cummings-Edwards to uphold the decision by the Government Analyst-Food and Drug Department (GA-FDD) to deny entry of a container of condensed milk from Malaysia into the country.

The shipment belongs to businessman Rafik Ahmad, the owner of Superfoods Inc and his lawyer, Anil Nandlall, in the notice of appeal, took issue with the application of the law and contended that the Chief Justice “erred and misdirected” herself in law.

Shortly after the decision was handed down last Friday, the Attorney General’s Chambers had said in a press release that Justice Cummings-Edwards had found that GA-FDD and its Director Marlan Cole had shown sufficient cause that his May 23, 2016 decision to refuse entry to the applicant’s container, currently detained by the Guyana Revenue Authority (GRA), was lawful and done in accordance with the Food and Drugs Act and the Food and Drugs Regulations in conjunction with Section 43 Schedule II of the Customs Act.

In the notice of appeal, which was seen by Stabroek News, Nandlall advanced eleven grounds for the appeal.

He contended that the judge “erred and misdirected” herself in law when she discharged the previously issued Order or Rule Nisi of Certiorari and Order or Rule Nisi of Mandamus, when she “refused or failed” to find that the respondent took into account irrelevant and extraneous considerations in the exercise of his discretion and statutory powers in relation to the matter, and when she “refused or failed” to find that the respondent failed, refused and/or omitted to comply with and follow the procedures outlined by the Food and Drugs Act, Chapter 34:03, and Regulations made thereunder, he also contended.

He also charged that the judged “erred and misdirected” herself in law when she “refused or failed” to find that the respondent failed, refused and/or neglected to do or cause to be done any analysis or scientific examination of the subject sweetened condensed milk as is provided for and contemplated by the Food and Drugs Act and its regulations; when she refused of failed to find that the respondent acted capriciously, arbitrarily, ultra vires of and contrary to the provisions of the Food and Drugs Act and regulations; and when she failed to take into account the fact that sweetened condensed milk containing the same ingredients is found in random supermarkets in Guyana.

Also listed as grounds of appeal by Nandlall were the contention that the judge “erred and misdirected” herself in law when she “refused or failed” to take into account the fact that the Appellant/Applicant has been importing the same or similar type of milk containing the same ingredients from the same manufacturers to Guyana for the past five years and neither the respondent nor the GRA ever objected to same; that neither the respondent nor any other agency ever received an adverse report in relation to the constitution, the quality or ingredients of any of these products; that the shipment was accompanied by a series of documents all designed and intended to meet the requisite international standards governing the exportation and importation of food across territorial borders; and that neither the respondent nor the GRA ever objected to the importation of the product and that this conduct by the respondent created “a legitimate expectation that the said product will be allowed entry into Guyana.”

Affidavit

In his affidavit in support of the Notice of Motion, Ahmad had said that sweetened condensed milk was being imported over the last five years without any complaints about the quality. He said these imports have been “without any problems whether at the point of entry into Guyana, that is either by the Guyana Revenue Authority or the Government Analyst- Food and Drug Department or any other agency.”

The businessman explained that on October 26th, 2015, he ordered from one of his regular suppliers, Mewah Dairies, a 20-foot container of sweetened condensed milk containing 1,325 cartons. The container arrived in Guyana on December 30th, 2015.

He said that sometime after the milk arrived here, it was stated that the labels appeared fake. On another occasion, the argument was that the milk constituents fell short of the requirements for evaporated milk.

He said attempts were made to explain the difference between sweetened condensed milk and evaporated milk but the GA-FDD Director appeared to be incapable of understanding the difference.

Ahmad added that prior to the container’s arrival, he had all the required documentation and on this basis applied to the GRA for clearance of the said container on May 23rd, 2016.

He said that when he took the Tax Assessment Notice to the department, he was informed that “the constituents of the milk are not in keeping with the Food and Drug Regulations for the fat content and milk content required of the sweetened condensed milk.” He said this was the third occasion that a different explanation for the refusal was given.

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