The Court of Appeal has delivered a strong warning to public regulators that their statutory authority cannot be used as a tool for personal vendetta.
In Tobinco Pharmaceuticals Ltd v. Food and Drugs Authority, the Court unanimously upheld a High Court ruling that the Food and Drugs Authority committed the tort of misfeasance in public office against Tobinco Pharmaceuticals Limited. The judgment resulted in an award exceeding GH¢30 million in damages and costs and now stands as one of the clearest judicial pronouncements on the limits of administrative power in Ghana.
The decision which was delivered on 23 April 2026 by a panel comprising Anthony Oppong JA, Barima Oppong JA, and Justin Dorgu JA, is one that goes beyond addressing a dispute between a pharmaceutical company and a regulator. It speaks directly to constitutional accountability, fairness in public administration, and the abuse of discretionary power by state officials.
The Origins of the Dispute
The dispute traces back to 2013, when the FDA discovered that Tobinco had imported Gsunate Plus 25 and 50 anti-malarial suppositories without separately registering the products. Tobinco admitted the omission but argued that the medicines contained the same active ingredients as already-registered Gsunate oral capsules and therefore did not require a separate registration process.
The FDA disagreed, imposed a GH¢40,000 fine, and ordered a recall of the products. Up to this point, the matter appeared to be an ordinary regulatory enforcement exercise.
The Court, however, found that what followed crossed the line from regulation into abuse of power.
According to the evidence accepted by the Court, the FDA’s then Chief Executive Officer, Stephen Opuni, publicly described the medicines as “fake” and suggested they may have caused the deaths of children despite the absence of scientific or clinical evidence supporting such claims.
As expected, the consequences for Tobinco were severe. Twenty-three containers of pharmaceutical products were detained at the Tema Port, warehouses were shut without notice, and the company’s Indian supplier, Bliss GVS Pharma, was effectively blacklisted through an FDA newsletter rather than through the legally required Executive Instrument. The CEOs of both companies were also arrested and detained at the then Bureau of National Investigations and allegedly coerced into signing undertakings under duress.
Shockingly, the same products previously condemned as “fake” were later registered after Dr Opuni left office.
Misfeasance in Public Office Explained
The tort of misfeasance in public office was very central in the judgement. Though relatively rare, it is a powerful cause of action in public law.
Relying on authorities from the United Kingdom and Canada, including Three Rivers District Council v Governor and Company of the Bank of England (No. 3) and Odhavji Estate v Woodhouse, the Court reaffirmed that four elements must be established:
1. The defendant must be a public officer or public institution;
2. The impugned conduct must occur in the exercise of official functions;
3. The conduct must be motivated by malice, bad faith, or deliberate abuse of authority; and
4. The claimant must suffer damage as a result.
The Court found all four requirements fully satisfied.
There was no dispute that the FDA is a public body exercising statutory functions under the Public Health Act, 2012 (Act 851). The key issue was whether the Authority acted in bad faith.
The Court’s answer as one would expect, was quite straightforward and emphatic.
Findings of Malice and Bad Faith
An interesting aspect of the judgment is the Court’s treatment of evidence suggesting personal animosity and targeted persecution.
The Court accepted unchallenged testimony that Dr Opuni had threatened to “bring down” Tobinco’s CEO and “finish him like Semanhyia,” another pharmaceutical distributor allegedly affected by earlier regulatory action. Since this testimony was never rebutted, the Court treated it as effectively admitted.
The Court also pointed to the timing of the FDA’s public statements. An FDA newsletter accusing Tobinco of flooding hospitals with fake medicines was published before the undertakings supposedly signed voluntarily by the detained CEOs were dated. This sequencing, coupled with the nearly identical wording of both undertakings, persuaded the Court that the documents had been coerced.
Equally important was the FDA’s failure to conduct laboratory or clinical testing before publicly branding the products as fake. During cross-examination, the FDA’s own witness admitted that the suppositories shared the same active pharmaceutical ingredient as the already registered oral medication and that suppository formulations were recognised under Ghana’s National Anti-Malaria Policy.
For the Court, these facts painted a picture far from legitimate regulatory enforcement, rather it created a picture of arbitrary and malicious conduct.
Constitutional Limits on Administrative Power
The Court relied heavily on Articles 23 and 296 of the 1992 Constitution, which require administrative bodies exercising discretionary power to act fairly, reasonably, and without arbitrariness.
Importantly, the Court held that where a public officer exercises discretionary authority, the burden falls on that officer to demonstrate compliance with constitutional standards of fairness and candour. This practically shifts the evidentiary burden away from citizens and businesses who challenge administrative abuse.
The Court also ruled that the FDA acted unlawfully by effectively banning Bliss GVS Pharma without the Executive Instrument required under section 116 of Act 851. According to the Court, Parliament intentionally reserved such extraordinary powers for the Minister of Health as a safeguard against abuse by individual officials.
In a quite memorable observation, the Court stated that the lawmakers appeared to have had the “foresight, nay premonition” to anticipate the kind of abuse that later occurred.
Damages and Accountability
The Court affirmed special damages of more than GH¢24.5 million, covering destroyed products, demurrage charges, and bonded warehouse expenses. It also upheld GH¢5 million in general damages for reputational and commercial harm, together with GH¢1 million in legal costs.
The FDA argued that Tobinco’s own regulatory breach should bar recovery under the ex turpi causa principle, which prevents a claimant from benefiting from its own illegality, however, the Court rejected this argument outright.
While Tobinco may have violated registration requirements, the Court held that such non-compliance did not authorise the FDA to fabricate allegations, abuse detention powers, or act outside its statutory mandate. The wrongdoing by the regulator was distinct, independent, and far more serious.
The ruling in Tobinco Pharmaceuticals Ltd v. Food and Drugs Authority is likely to become a defining authority in Ghanaian administrative and constitutional law.
For businesses, it reinforces the principle that regulatory agencies are not above the law and may be held financially accountable for malicious or arbitrary conduct.
For public institutions, it serves as a reminder that statutory power is held in trust for the public and must be exercised lawfully, transparently, and fairly.
The decision also demonstrates an increasing willingness to scrutinise the exercise of administrative discretion and to provide meaningful remedies where constitutional rights are violated.
The Court closed with the famous words of Holt CJ in Ashby v White:
“If public officers will infringe men’s rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences.”
That statement captures the essence of the judgment. Public power is necessary in every modern state, but when it is weaponised for personal ends, the law must respond decisively, and in this case.
