The Incorporated Trustees, Pharmaceutical Society of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 9^th day of February, 2018 SUIT N0: NICN/ABJ/80/2015

BETWEEN

The Incorporated Trustees,

Pharmaceutical Society of Nigeria (PSN )

The Incorporated Trustees of the Association

Of Medical Laboratory Scientists of Nigeria (AMLSN)

The Incorporated Trustees, Nigeria Optometric

Association (NOA)

The Incorporated Trustees, Association of

Radiographers of Nigeria (ARN)

The Incorporated Trustees, Health Information

Managers Association of Nigeria (HIMAN)

The Incorporated Trustees, Nigeria Society of

Physiotherapy (NSP) …………………………………………………………………………………APPLICANTS

AND

President and Commander in Chief,

Federal Republic of Nigeria, Abuja.

Honourable Attorney General of the Federation

And Minister of Justice, Federal Ministry of Justice, Abuja.

Honourable Minister of Health, Federal Ministry of

Health, Abuja.

Honourable Minister of Labour and Productivity,

Federal Ministry of Labour & Productivity, Abuja.

Secretary to the Government of the Federation

(SGF), Federal Secretariat, Abuja …………………………………………………RESPONDENTS

Representation:

K.O. Ijatuyi for the Applicant

A.O. Egalase for the 4^th Respondent.

JUDGMENT

The Applicant herein by a motion exparte dated and filed on the 18^th day of March, 2015 brought pursuant to section 6 (1) and 254C (1) (d) of the 1999 Constitution of Federal Republic of Nigeria 1999 as amended, sections 7,12, & 13 of the National Industrial Court Act 2006 and Orders 11 Rule 1 and 26 Rule 13 of the National Industrial Court Rules 2007 and under the inherent Jurisdiction of this Honourable Court, sought leave of this court to apply for an Order of certiorari.

The Motion was supported by a 17 paragraph affidavit deposed to by one Alhaji Toyosi Y. Raheem and a written address dated and filed on the same date.

The prayer for leave was granted on the 19^th of March, 2015 by Honourable Justice B.A. Adejumo.

Upon the grant of leave, Applicant then filed a Motion on Notice dated the 9^th of June, 2015 and brought pursuant to section 6 (1) and 254C (1) and 254(D) (1) of the 1999 Constitution of Federal Republic of Nigeria 1999 as amended, sections 7, 12 (2) (a), 13 & 17 (2) of the National Industrial Court Act 2006 and Orders 11 Rule 1 and 26 Rule 13 of the National Industrial Court Rules 2007 and under the inherent Jurisdiction of this Honourable Court.

The Motion was supported by a 17 paragraph affidavit deposed to by one Alhaji Toyosi Y. Raheem and also a written address.

The Motion on notice is praying this Honourable Court for the following reliefs:

An Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the findings of the:- “REPORT OF THE PRESIDENTIAL COMMITTEE OF EXPERTS ON INTER- PROFESSIONAL RELATIONSHIPS IN THE PUBLIC HEALTH SECTOR (PCEIPRHS) DATED DECEMBER 2014”, as they relate to: matters already decided by this Court and other Courts of competent jurisdiction, matters pending in this Court and the Federal High Courts, matters pending in the Court of Appeal and Supreme Court of Nigeria.
AND for such further order or orders as the Honourable Court may deem fit to make in the Circumstances.

The motion paper set out 15 grounds upon which the application is predicated which are that:

In order to stem the disharmony among the various public Healthcare professionals in Nigeria, President Goodluck Ebele Jonathan, GCFR, set up a Ten-Member Committee of Experts, on Wednesday, 18th September, 2013, to look into Inter-Professional Relationships in the Public Health Sector with a view to recommending measures to ameliorate them.
The Committee headed by Alhaji Mahmud Yayale Ahmed, CFR, (Former Head of Service of the Federation) was given the following terms of reference: –

(a) identify the conflict areas among Public Health Sector Workers;

(b) identify international best practices in the management of Public Health workers;

(c) review the current roles of the various professionals cadres in the Health Sector and recommend measures to remove areas of conflict;

(d) review extant laws governing various health professional cadres in the Health Sector and recommend appropriate amendments where necessary;

(e) review the Draft Report of the Committee set up by the Minister of Health on “Harmonious Work Relationship Among Public Health Workers,” with a view to adopting suitable recommendations therefrom (Justice Gusau Report);

(f) advise Government on appropriate measures to promote harmonious relationship among Public Health Workers; and

(g) to make any other recommendation(s) that may be incidental to the foregoing terms of reference, which may assist government to promote harmony in the Public Health Sector.

The Committee identified nine (9) major conflict areas in the Public Health Sector which should be addressed in order to resolve the disharmony among the health workers, ensure patient care and position the public health workers as an instrument for the implementation of Government programmes on effective healthcare service delivery.
The thematic areas of conflicts identified by the committee are as follows:

(i) Organizational Management

(ii) Leadership and Teamwork

(iii) Remuneration / Motivational

(iv) Career Management

(v) Capacity Building

(vi) Professional practice

(vii) Labour

(viii) Legal; and

(ix) Government

On the 19th day of December, 2014, the Committee submitted its report to the President. This was widely reported in most National Newspapers circulating in the Country. (See Saturday Punch of December 20, 2014 at page 26 and the Guardian of Saturday, December 20, 2014 at page 6).
In a press statement signed by the president’s Special Adviser on Media and publicity and published by the aforementioned Newspapers, it was reported that the federal Government will review the report immediately with a view to issuing a white paper on it and commence the implementation of its recommendations.
A white paper committee to consider the Report has since been set up in the office of the secretary to the Government of the Federation.
The bulky Report (over 200 pages) of the Alhaji Mahmud Yayale Ahmed’s Committee findings and Recommendations has been circulating in the public arena and among the major stakeholders (including) the Applicants in the Public Health Sector.
It has since been observed by the Applicants that most of the findings and Recommendations of the committee centred on issues that were/are the subject of litigations in various courts of competent jurisdictions. The courts are: – National Industrial Court, Federal High Court, Court of Appeal and Supreme Court.
Some of the court cases in which most of the issues deliberated upon by the committee are contained are as follows:
Suit No: NICN/ABJ/238/2012 — Medical and Health Workers Union of Nigeria and 4 Others vs. Federal Ministry of Health — Judgment delivered on 22nd July, 2013. Among others, the Court held that collective agreement on shift duty allowance should apply. Also, the directive that Conhess 10 should not be skipped was declared null and void. Note: – Ministry of Health appealed against the Judgment to the Court of Appeal, Abuja. The said Appeal is pending. Also, there is a further appeal to the Supreme Court against the leave granted to the Appellants by the Court of Appeal – Suit No SC/38 1/20 14.
Suit No: NICN/ABJ/128/2012: AMLSN & Others vs. Hon AGF, Minister of Health & Others. Judgment delivered on 23’’ Oct., 2013. Among others, the Court held that Medical Laboratory Scientists are distinct professionals and entitled to their own separate department in public hospitals. Also, the court held that there was no conflict whatsoever in the various Acts regulating the different professional Associations in the Health Sector. Note: The Hon. Minister of Health filed an appeal in Suit No CA/A/288/M/2014 (Abuja) against the said Judgment. The said Appeal is pending. It came up on 28/05/2015 and adjourned to 16th January, 2016 for hearing of the application for leave to appeal.

III. Suit No: NICN/AK/35/2014: The Incorporated Trustees of the Association of Medical Laboratory Scientists of Nigeria & Anor vs. Hon. AGF, Hon. Minister of Health & Others — Pending at then National Industrial Court, Akure. Issue — Need to comply with the Court Judgment in No. 2 above. The matter came up on 4/6/2015 and adjourned to 23/09/20 15 for further hearing.

Suit No: NICN/ABJ/177/2014: Incorporated Trustees of the Medical & Dental Consultants Association of Nigeria vs. Federal Ministry of Health & 2 Others — Still pending at the NICN, Abuja. (NMA are Claimants in the suit).
Suit No: NICN/ABJ/387/2014: The Incorporated Trustees of the Association of Medical Laboratory Scientists of Nigeria & Anor. vs. Hon. AGF, Hon. Minister of Health & Others — Still pending at the NICN, Abuja. (Federal Teaching Hospital, Gombe).

Issue- Need to comply with the Court Judgment in No 2 above. The matter came up last on June, 2015 and adjourned further to 29/06/2015 for hearing of the Preliminary Objection filed by some of the Defendants.

Suit No: FHC/AWK/CS/38/2013: Obi Ayobamchukwu Anselem vs. Hon AGF, Minister of Health & Others — Issue: “Who is medically qualified” to be appointed as CMD — Still pending at the Federal High Court, Awka. An Interlocutory Appeal was filed by one of the Defendants and it will come up for hearing on 22/06/2015 in Enugu Appeal No: CA/E343/2014.

VII. Suit No: FHC/L/CS/611/2011: Pathcare Laboratories and Two Others vs. MLSCN. Note: The Court joined The Medical and Dental Council of Nigeria (MDCAN) as an interested party. Issue:Whether MLSCN is the only body permitted under the law to regulate Laboratory Practices in Nigeria.

Note: Prof. Ibironke Akinsete who is one of the Plaintiffs in the above case was a member of the Yayale’s Committee! Note: The matter is still pending at the Federal High Court, Lagos.

In view of the above developments, the Applicants caused a letter dated 15th January, 2015, to be addressed to the President of the Federal Republic of Nigeria.
A similar letter dated 21st January, 2015, was equally addressed to the Chairman and members of the white paper committee on the said Report.
Some of Alhaji Mahmud Yayale Ahmed’s Committee Report/Recommendations relating to the Court matters are hereunder stated thus:

(a) The Committee opined that the judgment of this Court delivered on 23/10/2013 in Suit No: NICN/ABJ/ 128/2012: Incorporated Trustees of Association of Medical Laboratory Scientists of Nigeria and Others V. Hon. A.G.F. & Minister of Justice & Others; has to do with the legality of MLSCN as a distinct legal body. That the Court did not delve into the cases of overlap of functions between the pathologist and the Medical Laboratory Scientist. That the disharmony between the two professionals continued to fester. (See paragraphs 2.7.9—2.7.13 at pages 47— 50 of the Committee’s report). Note: The above case is now the subject of appeal at both the Court of Appeal and Supreme Court by the Parties.

(b) The Committee recommends compliance with the decision of this Court in Suit No: NICN/ABJ/238/2012: Medical & Health Workers Union of Nigeria & 4 Others V. Federal Ministry of Health, delivered on 22/07/2013. Among Others, the Court ruled that non-medically qualified health professionals should not be appointed as Consultants in Federal Government Institutions. (See paragraphs 3.2.18 at page 62 of the Report.

Note: The above case is now the subject of appeal in both the Court of Appeal and Supreme Court (Suit No: SC/381/2014). Also, the words “medically qualified”, is the main issue for determination in a case pending at the Federal High Court, Awka – FHC/AWK/CS/38/2013 Obi Ayobamchukwu Anslem V. Hon. AGF & Minister of Justice & others, plus an Interlocutory Appeal to the Court of Appeal, Enugu- CA/E/343/2014. (See also paragraph 9.4.4 — 9.4.5 at pages 191-192 of the Report).

(C) In paragraph 3.3.7 at pages 70-71 of the Report, the Committee strongly recommended the immediate rationalization and realignment of some regulatory agencies in the Public Health Sector [listed as (a) to (o)]. The above is contrary to the judgment in Suit No: NICN/ABJ/ 128/2012 (Supra). Also, the issue is the subject matter in a pending case at the Federal High Court in Lagos — Suit No: FHC/L/CS/611/2011 Pathcare Laboratories & 2 Others V. MLSCN. Note: A member of the Committee, Prof. Ibironke Akinseye is one of the Plaintiffs in the above case.

(d)The Committee recommended that members of the Applicants Professional groups do not need to be appointed as HODs but should have the opportunity to attain the peaks of their careers. See paragraph 5.2.8 at page 105 of the Report.

Note: Above is one of the issues pronounced upon by the Honourable Court in Suit No: – NICN/ABJ/ 128/2012 (Supra).

(e)In paragraph 7.2.8 (b) (d) at pages 142-143 of the Report, the Committee recommended that Medical Laboratory Scientists are to forward the results of their specimens to the Pathologists for interpretation and further action. Also, that Medical Doctors can independently conduct or carry out relevant tests in the Laboratory. Note:The above is a direct assault on the Court pronouncement in Suit No: NICN/ABJ,’128/2012 (Supra).

(f) The Committee recommends, in paragraph 9.2.8 at page 187 of the Report the immediate review of MDPA Act Cap. M8, LFN, 2004 & MLSCN Act Cap M25, LFN, 2004, to remove conflicts. Note: The above recommendation clearly negates the clear pronouncement of the Court in Suit No:NICN/ABJ/128/2012 ((Supra) where the Court held that there is no conflict whatsoever between the two Acts.

(g) The Committee also recommended in paragraph 9.6.9 at page 195 of the Report, that the Federal Ministry of Health and Justice should as a matter of urgency, enact legislations for Federal Medical Centres and Others that do not have enabling laws. Note: The Honourable Court in Suit No: NICN/ABJ/128/2012 (Supra), rightly held that the University Teaching Hospital (Reconstitution of Boards, etc) Act, Cap U15, LFN, 2004, is applicable to Federal Medical Centres as the enabling law.

From the surrounding circumstances of this case, the bulk of The Recommendation of the Committee which were subsequently referred to a White Paper Committee in the office of The Secretary to the Government of the Federation centred around matters pending in Courts of competent jurisdiction and therefore ought not to have been deliberated upon at all by the above named two committees.
From the above stated facts, it is wrong for the Executive to usurp the Judicial power of the Courts as provided for under the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The 1^st and 2^nd Respondent entered appearance by filing a memorandum of appearance dated the 11^th of September, 2015. The 1^st and 2^nd Respondent also filed an eight paragraph counter affidavit deposed to by one Lawrence Ilop dated and filed on the 11^th of September 2015. The counter affidavit is accompanied by a written address.

The 1^st and 2^nd Respondent also filed a Notice of Preliminary Objection brought pursuant to Order 5 Rule 2 and Order 11, Rule 1 of the National Industrial Court Rules 2007; section 2 (a) of the Public Officers Protection Act and under the Inherent Jurisdiction of this Honourable Court dated the 10^th of September, 2015 and filed on the 11^th of September, 2015, the Notice of Preliminary Objection is accompanied by a written address also dated the 10^th of September, 2015 and filed on the 11^th of September, 2015.

The 5^th Respondent entered appearance in the matter on the 23^rd of September, 2015.

The 3^rd Respondent upon an application filed on 03^rd of December, 2015 for extension of time within which to enter appearance and file necessary processes. A 6 paragraph counter affidavit dated the 3^rd day of December 2015 was filed on the same day. The counter affidavit is supported by a written address.

The 4^th Respondent on his part entered appearance on the 17^th of February, 2016 upon an application for extension of time to do same. The said 4^th Respondent then filed a 6 paragraph counter affidavit deposed to by one Ibrahim Umar dated and filed on the 21^st of December, 2016. The counter affidavit was supported by a written address dated the 19^th of December, 2016 and filed on the 21^st of December, 2016.

On the date set for hearing, Counsel to the Applicants K.O. Ijatuyi moved the said motion on notice filed on behalf of the Applicants and placed reliance on all the 15 grounds upon which the said motion is brought and also the 17 paragraph affidavit deposed to by one Alhaji Toyosi Y. Raheem. He also adopted the written address filed in support as his oral argument and prayed the court to grant their prayers.

Learned Counsel to the 4^th Respondent, A.O. Egalase, in response, informed the court of the 6 paragraphed counter affidavit deposed to by Ibrahim Umar. He adopted the written address filed in support of the said counter affidavit as oral argument and prayed the court to grant their prayers as stated in their processes.

ISSUES FOR DETERMINATION ARISING FROM WRITTEN ADDRESSES IN SUPPORT AND IN OPPOSITION.

Learned Counsel to the Applicant, K.O. Ijatuyi through his written address submitted a lone issue for the determination of this court to wit:

“Whether having regard to the materials placed before this Honourable Court and the surrounding circumstances of this application, the applicants have made out a strong case sufficient enough to enable the Court to grant their prayers?”

In arguing the lone issue, Learned Counsel submitted that from a plethora of authorities on application of this nature, the applicants must satisfy the Court that they have an arguable case. That Writ of Certiorari is one of the instruments of judicial control of administrative action. It will apply where an administrative body purports to usurp judicial functions.

He cited the cases of Igbihi Local Govt. v Boundary settlement Commissioner (1988) 1 N.WLR (Pt.69) S.C 189 at 190-192 and 204; Exparte Olakunrin (1985) 5 S.C 161; Obiyan v Governor, Midwest (1972) 4 S.C. 248; Adekanye v FRN (2005) 15 NWLR (Pt.949) 433 at 466; Manuwa v NJC (2013) 2 NWLR 1.

Learned counsel urged that from the grounds for this application, the affidavit in support and all the exhibits attached, the Applicants have made out a strong case sufficient enough for the Honourable Court to grant their reliefs.

Learned Counsel further contended that from the clear provisions of section 6 of the 1999 Constitution of Nigeria (as amended), Judicial Powers are vested in the Court and NOT in the Executive arm of Government. He cited the following cases: Edet v Mathias (2009) All FWLR (Pt.454) 1564; Onyia v State (2008) 18 NWLR (Pt.118) 142; Agala v Egwere (2010) All FWLR (Pt.532) 1609.

He also contended that it is settled jurisprudence that decisions of a court of competent jurisdiction on a matter would constitute an estoppel per rem judicatam citing the case of Agala v Egwere (supra).

Learned counsel concluded in his submissions that matters pending before the courts cannot be inquired into or deliberated upon by other bodies or institutions outside the law courts as it will be a naked usurpation of judicial functions as provided for under the 1999 Constitution. Counsel relied on the following cases Egbaniwe v. Federal Government of Nigeria (2010) NWLR (Pt.1178) 348 at 369.; Adekanye v. Federal Republic of Nigeria (Supra).;Rotimi Amaechi v. INEC & 2 ors S.C/252/2007. and Olori Motors Company Ltd. & 2 ors v. Union Bank S.C. 278/2001. He submitted that the application is meritorious and ought to be granted.

In response, Learned Counsel to the 4^th Respondent, A.O. Egalase, through the written address in support of the counter affidavit formulated one issue for determination to wit:

“whether the honourable court can safely grant the Applicant’s application under the circumstances of the suit”

In arguing the lone issue, Learned Counsel respectfully submitted that though a Writ of Certiorari is a judicial review of or supervisory jurisdiction of the High Court exercised in the review of proceeding and decision of inferior courts as well as quasi- judicial Function of government bodies, the court is usually concerned with the legality and not with merit of the proceeding, decision of the affected inferior court, Tribunals, or Government bodies. Counsel referred this court to per Onnoghen JSC in ACB PLC Vs. Damien Ikechukwu Nwaigwe & 2ORS LER (2011)SC35/2001.

He further submitted that where a purported action of a government body has not been made public, you cannot regard such action as a government action and therefore cannot safely act on it. And it therefore follows that the Writ of Certiorari cannot be used in cases that are speculative or hypothetical and academic. Counsel cited the case of Plateau State of Nigeria V.A.G. of the Federation (2006) 25 NSCOR 179 Niki Tobi, JSC at page 236.

Counsel concluded that arising from the above Courts’ decision, it is no gain saying that the action is full of guesses and low in facts as the said REPORT sought to be quashed by the court is not Within the public domain, is not a working report since according to the applicants they are still being called to make further submission to authenticate the said report hence the application will fail in line with the Decision of the Court in the case of Plateau State of Nigeria V.A.G, of Federation (Supra).

The 1^st and 2^nd Respondent through their written address in support of the Counter affidavit submitted a lone issue for determination to wit:

Whether or not the Applicants are entitled to the relief sought.

The lone issue was argued on four grounds, they are:

i) That this action is an abuse of court process.
ii) That the applicant is only speculating about the implementation of the recommendations.

iii) Mode of commencement of action.

iv)That this suit is statute barred.

On Whether this action is not an abuse of court process? It was contended that the applicant ought not to have initiated the action since the committee has already concluded the action and the subject matter of that report and this action form part of the action pending before various courts of law including Supreme Court. Therefore the present action constitutes an abuse of court process. Counsel cited the case of SARAKI V KOTOYE [1992] 9 NWLR [pt 264] 156 ref to p344 paras B-H

On whether some of the issues in dispute by the Applicants are not speculation? It was contented that the facts that the Applicants are agitating for were some of the recommendations, that were made by the committee on white paper which they said that is not favourable to them, is a mere allegation and speculative in nature. That such cannot stand the force of law. The case of Olalomi Ind ltd v NIDB [2009] 39 NSCQR, 282.was cited.

On whether the suit ought to have been commenced by motion on notice instead of originating process? It was contented in the address that This action ought to have commenced with originating process other than motion on notice in seeking for such reliefs. Reference was made to the Commencement by originating Process Order 22 Rule 3 (2) National Industrial Court Rules 2007 and the case of Dangote V CSC, Plateau state (2wl) 9 NWLR (Pt 717), 132; Auto Import V Adebayo (2002) 18 NWLR Pt 799; Madukolu &ors v Nkemdili &ors [19621 ALL MR PT2; NPA Plc Vs Lotus Plastics ltd [2005] 19 NWLR Pt. 959.

On whether this suit is not statute Barred, it was submitted that this action is statute barred as same is caught up by Section 2 (a) of the Public Officers Protection Act, Cap P41, Laws of the Federation of Nigeria, 2004. The said provision is quoted and it was further submitted that a “person” when used in a legal sense, as in this case, is an apt word to describe a corporation as well as a natural person.

The case of OFILI .V. C.S.C (2008) 2 NWLR (Pt. 1071) 238 at 252 — 253, PARAS. H — B and IBRAHIM .V. JUDICIAL SERVICE COMMITTEE (1998)14 NWLR (Pt.584) 1, was also cited to concretise the position that the courts of this country have remained consistent in holding that Agencies of Federal or State Governments are public officers entitled to the protection envisaged and contemplated by the Public Officers Protection Act/Laws.

It was further contended that the period of Limitation of an action is determined by looking at the writ of Summons and statement of Claim (Affidavit in support of motion on notice, as in this case) with a view to ascertaining the date on which the wrong in complaint was committed and to compare that date with the date on which the writ of Summons was filed. If the date pleaded as to when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is statute barred and incompetent. Reliance was placed on the cases of FORESTRY RESEARCH INSTITUTE OF NIGERIA .V. GOLD (2007) 9 MSC 210 at 220, Paras.C-E and OFILI .V. C.S.C (Supra) 253, Paras.F-H.

Upon that, the court is urged to look at the processes filed by the Applicants. It is clear therefrom that the action arose on 9th day of June, 2015, when the Applicants admittedly had the report purported to quash, on the 19th day of December, 2014, particularly to paragraph 5 of the Applicants/Respondents Affidavit in Support to the Motion on Notice. This suit was filed on the 9th day of June, 2015, six months after the accrual of the action. That this is clearly over the three months prescribed by Section 2 (a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 within which the Applicants is (sic) required to seek redress. The cases of EGBE .V. ADEFARASIN & ANOR (1985) 1 NSCC VOL. 16, 643 at 658, lines 39 to 44 and FORESTRY RESEARCH INSTITUTE OF NIGERIA .V. GOLD (Supra) Paras. B-F. were also cited.

It was concluded that the application lacks merit and it is an abuse of court process which will not be entertained by this Honourable Court and urged the court to so hold and discountenance the application in the interest of justice.

The issue for determination raised in the written address filed by the 3^rd Respondent in support of the Counter Affidavit is in every respect the same with that of the 4^th Respondent.

I should state first, that the 1^st, 2^nd and 3^rd Respondents filed written addresses but were not in court on the date for hearing for adoption of same. In this regard, Order 45 Rule 7 of the rules of this Court provides that:

where any party before the court has filed a written address and on the day fixed for adoption of the written address the party fails or neglect to appear to adopt the written address without any cogent and compelling reason to the satisfaction of the court, the Court shall deem the said written address as adopted and adjourn for ruling or judgment accordingly.

By this provision, this court can consider the written addresses in support of Counter Affidavits filed by 1^st, 2^nd and 3^rdRespondents who were not in court on date fixed for hearing and adoption of the processes despite evidence of service of three different hearing notices on them.

Having said that, from the totality of the issues raised in the written addresses before this court and the argument made in furtherance of same, the issues to be determined by this court are to wit:

Whether from the totality of fact before this court, the Applicants are entitled to the reliefs sought
Whether or not from the circumstances of the suit, this action is statute barred

The second issue formulated relates to the jurisdiction of this court. It concerns lack of jurisdiction of the court after a stipulated statutory period. I propose to consider the issues in reverse order dealing with the one that involves jurisdiction first. It is an elementary principle of law that the jurisdiction of the court is very fundamental to the adjudication of the matter before it.

Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribes such periods and regulates the subsistence of causes of action are known as statutes of limitation.

Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See the cases of EBOIGBE v NNPC (1994) 5 NWLR (Pt. 347) 649; Aremo II V Adekanye (2004) LPELR 544 (SC) Per Edozie JSC. P.17 Paras C-F.

While section 2 (a) Public officers Protection Act, Laws of Federation of Nigeria, 2004 which provides thus:

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect –

(a) the action, prosecution, or proceeding shall not be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

Since this matter is one related to judicial review specifically, it is imperative to also consider the provision for time limit for application for judicial review under the rules of this court. THE RULES OF THIS COURT PROVIDES FOR THE TIME WITHIN WHICH APPLICATION FOR JUDICIAL REVIEW MUST BE BROUGHT:

ORDER 48 RULE 4 PROVIDES THAT an application for judicial review shall be brought within three (3) months of the date of occurrence of the subject of the application and no leave of the court shall be required for that purpose.

In even more precise position, the Court in ARCHIANGA V A.G. AKWA IBOM STATE (2015) 6 NWLR (PT. 1454) 1 at 55 para F-H per Garba JCA noted as follows:

In law, the period of limitation begins to run from the date on which the right or cause of action accrued to the party entitled to it and against another who is responsible for the grievance in respect of which the cause of action arises. To determine whether an action or cause of action is statute barred, all that is required for the court to do is to examine the writ of summons or other initiating process of the action and the statement of claim wherein the facts as to the dates when the wrong complained of and giving rise to the cause of action was committed and then comparing it with the date on which the writ of summon or other process initiating the action was filed. If the date on which the action was initiated was beyond the time or period prescribed, and limited by the Limitation Law, then the action is statute barred by the law and so it cannot be maintained. See also the unreported case of MR. I.O. OZOEMENAM v CENTRAL BANK OF NIGERIA. (SUIT NO:NICN/OW/11/2016).

The report against which the order of certiorari is brought is dated December 2014 and said to have been submitted to the President on the 19^th Day of December, 2014.The application for leave to apply was made exparte on the 18^th of March 2015.

The Applicant in Paragraph 7 of the Affidavit in support of the motion also stated that the submission the report was made public on the 20^th December, 2014.

It is clear that the Applicant’s grievance originated from the Report of the Committee which was submitted on the 19^th of December, 2014. To determine whether this action is statute barred, a close look at the Exparte application filed on the 18^th of March, 2015 shows that the matter was brought within the requisite 3 months and therefore cannot be said to be statute barred and I so hold.

I am inclined to also at this point examine the issue of abuse of court process for the sake of clarity. 1^st and 2^nd Respondent had contended that this action is an abuse of court process on the basis that the applicant ought not to have initiated the action since the committee has already concluded the action and the subject matter of that report and this action form part of the action pending before various courts of law including Supreme Court. Counsel cited the case of SARAKI V KOTOYE [1992] 9 NWLR [pt 264] 156 ref to p344 paras B-H

The court in R-BENKAY NIGERIA LIMITED. v. CADBURY NIGERIA LIMITED (2012) LPELR-7820(SC) held that:

“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice. d) Where an application for adjournment is sought by a party to an action to-bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexacious and an abuse of court process.” Per ADEKEYE, J.S.C. (Pp. 25-26, paras. F-G)

Going by the above, the question that arises is whether there are any other suits before any court relating to the report of the Committee for which an application for judicial review is made which may be considered as multiplicity of suits?. No such facts has been provided before this court. This court therefore considers that this application for judicial review is not an abuse of court process and I so hold.

I now turn to issue one.

The Supreme Court in JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR. v. DR. (MRS). ASARI YOUNG (2013) LPELR-20592(SC) held that:

“..what really, in law, is certiorari? It is depicted as follows:- “Certiorari is one of the prerogative writs whose main function is to ensure that inferior courts or any body entrusted with performance of judicial or quasi judicial functions keep within the limits of the jurisdiction conferred upon them by statute which create them. Therefore, an order of certiorari will lie to remove into the High Court for purpose of being quashed any judgments, orders, convictions or other proceedings of such inferior courts or body, civil or criminal made without or in excess of jurisdiction (T. Akinola Aguda of blessed memory in his book – Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria 1995 Edition pages 654 – 655).”.” Per FABIYI, J.S.C (Pp. 38-39, paras. E-A)

Furthermore, in PROF. LOUIS CHELUNO NWAOBOSHI & ORS V. THE MILITARY GOVERNOR OF DELTA STATE & ORS [2003] 11 NWLR (Pt.831)305 the court held that:

It is elementary that certiorari is a prerogative writ of common law origin available to the high court in the exercise of its supervisory control over an inferior tribunal or court to ensure that it does not exceed its jurisdiction or commit irregularities making its decision bad on its face

“The writ is issued in order that the issuing court may bring the proceedings of the inferior tribunal or court before it for inspection and if there is due cause disclosed, to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity. it does not lie against executive or legislative acts or administrative acts” Per Uwaifo, J.S.C. (P. 10, paras. F-G).

It is imperative therefore to inquire, based on the facts presented before this court, whether the Applicant has made out a case to warrant the grant of an order of certiorari and therefore entitled to the reliefs sought.

It is not in dispute that the said Presidential Committee of Experts on Inter- Professional Relationships in The Public Health Sector (PCEIPRHS) is made up of a body of persons having the legal authority of the President in 2013 to look into the inter-professional relationships within the Health Sector.

The essence of the application was disclosed in paragraph 15 and 16 of the affidavit in support of the application that

It was wrong for the Executive to usurp the judicial power of the courts as provided for under the 1999 Constitution of Federal Republic of Nigeria and that from the bulk of the recommendation of the Committee, it was centered around matters pending in courts of competent jurisdiction and therefore ought not to have been deliberated upon.

The question that must then be asked whether the presidential Committee of Experts on Inter- Professional Relationships in The Public Health Sector (PCEIPRHS) acted judicially or quasi-judicially? In an action for the order of the writ of certiorari to bring the proceedings of an inferior court or administrative panel before a High Court to be quashed, it is the duty of the Applicant to prove by evidence, facts to establish the ground of the application.

In this case, the grounds upon which the application is predicated were set out in the motion paper and verifying affidavit in support of same as contained in grounds 1 – 15.

Curiously, the learned Counsel to the Applicant, acknowledged the Presidential Committee as non-judicial or as administrative when he stated in ground 1 of the motion paper thus:

“In order to stem the disharmony among the various public Healthcare professionals in Nigeria, President Goodluck Ebele Jonathan, GCFR, set up a Ten-Member Committee of Experts, on Wednesday, 18th September, 2013, to look into Inter-Professional Relationships in the Public Health Sector with a view to recommending measures to ameliorate them”.

And even went further in ground 2 to state the terms of reference. Usurping the powers of the court or interfering with ongoing litigation was clearly not on its term of reference and can neither be inferred. The purpose of the Committee was to advise the President on the appropriate measures to take to promote harmonious relationship among public health workers.

I find it appropriate at this stage to refer to the following sections of the Committee Report:

Paragraph 2.7.9. – 2.7.13 pages 47 – 50

Paragraph 3.2.18. page 62

Paragraph 9.4.4. – 9.4.5. pages 191 -192

Paragraph3.3.7. pages 70 – 71

Paragraph 5.2.8 page 105

Paragraph 7.2.8. (b) (d) pages 142 -143

Paragraph 9.2.8 page187

Paragraph 9.6.9. page 195

The issue is whether the executives have in any way usurped the judicial powers of the courts in its setting up of a committee to make findings into the areas covered by its term of reference.

While there is no doubt that there are matters before the courts, some with judgments delivered on them while others are still pending as stated in Applicant’s Affidavit in support of motion and proved by Exhibits C, D, E and E1, it is clear that the terms of reference for the committee centres on finding reasons as to why there are such multitude of suits from one sensitive sector of the country.

Has the Executive arm done this within legal framework? One must note that the Executive arm is a policy making arm. They can sponsor bills that will be enacted into laws by the Legislative arms and to determine what bill to advance, they can conduct investigation into cause of societal disharmony in a sector. They are empowered to maintain the constitution and other laws enacted by National Assembly at the Federal level.

Section 5 (1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) provides thus:

Subject to the provisions of this Constitution, the executive powers of the Federation

shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

Although the Committee made certain references to some decisions of the court which needed to be complied with, the views and decisions of the report of the committee and its recommendations as at 28^th of May, 2015 were yet to be implemented as evidenced in Exhibit B2 (an open letter dated May 22, 2015, signed by Jiti Ogunye Esq. on behalf of Medical and Dental Consultants’ Association of Nigeria and addressed to President Goodluck Ebele Jonathan, the then President of Nigeria) captioned DEMAND THAT THE FEDERAL GOVERNMENT OF NIGERIA RELEASE THE REPORT OF THE PRESIDENTIAL COMMITTEE OF EXPERTS IN INTER-PROFESSIONAL RELATIONSHIP IN THE PUBLIC HEALTH SECTOR AND VIEWS AND DECISIONS (WHITE PAPER) OF THE FEDERAL GOVERNMENT OF NIGERIA THEREON.

Having said that, one must consider Whether executive arm of government can interfere in the exercise of judicial powers conferred on Courts under Section 6(6)(b) of the 1999 Constitution with respect to matter before the Court.

The court of Appeal in the case of Ojukwu v. Military Governor Lagos State (1985) 2 NWLR (Pt. 10), when a similar issue was raised regarding the provisions of section 6 (6) (b) of the 1979 Constitution of Federal Republic of Nigeria whose provision is same with the current section 6 (6) (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended) held:

“Now Section 6(6)(b) of the 1979 Constitution provides as follows: “6(6) The judicial powers vested in accordance with the foregoing provisions of this section – X X X X X X (b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” Of this provision, Nnamani, J.S.C. said in Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 5 S.C. 112, at p.187: “Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the Courts by the Constitution.” In my view, a necessary corollary of this provision in the context of the separation of powers enshrined in our Constitution is that once a matter is submitted for adjudication by a court in due exercise of the judicial powers vested on it by the above provision, the executive should not interfere until the judicial decision has been made, particularly where that executive interference will have the effect of pre-empting or anticipating the decision of the Court.” Per NNAEMEKA-AGU, J.C.A (Pp. 40-41, paras. B-A)

Also in Towoju v. Gov., Kwara State (2005) 18 NWLR (Pt.957) 324 the court held that:

“In a presidential system of government which we are currently operating, there are three arms of government the Executive; the Legislature and Judiciary. Needless to say, the functions of each are clearly defined and set out in our Constitution which is the ground-norm. Any action taken or to be taken by each arm must be within the provisions of the said Constitution, or else it will be declared ultra vires the powers given to that arm of Government.” See also A.G. ABIA STATE v. A.G. FEDERATION (2003) 4 NWLR (PT.809)124.

It must be clearly distinguished that the recognition by the committee of matters in court and the fact that certain decisions have been made by the courts which need be complied with is not an interference with judicial powers. Neither is the investigation as to why there are multiplicity of suits within the health sector and recommendations to curb same an interference nor a means of pre-empting the decision of the court. This situation is clearly different from what prompted the holding in the above case and I so hold..

To then determine whether certiorari applies to executive functions, the court in the case of PROF. LOUIS CHELUNO NWAOBOSHI & ORS V. THE MILITARY GOVERNOR OF DELTA STATE & ORS [2003] 11 NWLR (Pt.831)305 held that:

“The writ of certiorari as an executive writ, just like its sister, prohibition, is a tool to curb excessive use by an inferior judicial body of its jurisdiction. Certiorari is to control inferior tribunals from exercising their mandate or jurisdiction wrongly, and no more. The body to be curbed by certiorari must be one by its instrument empowered to act judicially. Therefore it is a fatal misconception to apply via certiorari to crush an entirely administrative or executive exercise of power.” Per Belgore, J.S.C. (Pp. 17-18, paras. G-B)

The court went further that:

“No legislative or executive act is subject to the controlling jurisdiction of the writ of certiorari on the ground that it was not an act performed or expected to be performed judicially. It will be a contradiction in terms and offensive to the idea underlying the doctrine of separation of powers to hold otherwise since certiorari lies against only judicial or quasi-judicial acts. And a legislative or executive act cannot by rational thinking come within acts which are to be performed judicially.” Per Uwaifo, J.S.C. (P. 13, paras. A-C) – See also Ogunniyi & Anor v Dr. Funso Adaramola (1973) All NLR 900 S.C.

The report sought to be quashed in the instant case is the findings of the Presidential Committee of Experts on Inter-professional relationships in the public Health Sector. The body sought to be curbed is not empowered to act judicially. It is entirely an administrative or executive exercise of power. It is the ruling of this court following plethora of cases cited that certiorari lies only against judicial or quasi-judicial acts.

Generally, a body exercising powers which are merely advisory, deliberative, investigative or conciliatory in character or which do not have legal effect until confirmed by another body… will not normally be held to be acting in a judicial capacity. see Military Governor, Oyo State v Adekunle (2005) 3 NWLR (Pt.912) 294 CA.

The Government is entitled to set up a Committee of inquiry or administrative panel to inquire into certain matters which are of interest to it. See also Aremo II v Adekanye (2004) 13 NWLR (Pt. 891) 572 SC.

Consequently, the writ of certiorari is not the proper remedy in questioning the findings of the Presidential Committee and I so hold.

The next that follows naturally question is whether a newspaper report can be regarded as valid evidence, upon which the court should act and quash the setting up of the administrative tribunal, the court also held that:

“Now, having stated the law and all that, I now come back to the question posed a while ago, i.e., whether or not exhibit C, a newspaper report can be regarded as valid upon which the court should act and quash the setting up of the 3rd respondent. In the case Lekwot v. Judicial Tribunal (supra) at P. 35, again His lordship, Belgore, JSC stated thus: “… Are we to rely on newspapers reports which are no more than news items, with variations in different media on the same facts as alternatives to exhibiting the certified true copies of the decisions and proceedings? No court in this country can set aside, nullify or quash any proceedings or decisions not before it…” I am of the strong view, in line with decision of the apex court (supra) that the newspaper publication did not satisfy the requirement of law to ground its admission or its being countenanced by the lower court.” Per ABDULLAHI, J.C.A (Pp. 35-36, paras. C-A)

The answer to the above question is clearly in the negative based on the forgoing authorities.

A careful examination of the evidence before the court which includes Exhibit A (a copy of the report of the Presidential Committee of Experts on Inter-Professional Relationships in the Public Health Sector (PCEIPRPHS)) and Exhibits B and B1 (the copies of the newspaper publication wherein the report of the findings was made public) does not justify the assertion that the Committee in the performance of its function has acted judicially.

From the foregoing exposition, it is clear that the order of certiorari cannot be justiciable in this action and the reliefs sought by the Applicant to wit:

An Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the findings of the:- “REPORT OF THE PRESIDENTIAL COMMITTEE OF EXPERTS ON INTER- PROFESSIONAL RELATIONSHIPS IN THE PUBLIC HEALTH SECTOR (PCEIPRHS) DATED DECEMBER 2014”, as they relate to: matters already decided by this Court and other Courts of competent jurisdiction, matters pending in this Court and the Federal High Courts, matters pending in the Court of Appeal and Supreme Court of Nigeria;

is hereby refused.

I therefore dismiss this suit in its entirety.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.