The Incorporated Trustees of the Association Of Medical Laboratory AND University of Benin Teaching Hospital, Benin City, Edo State & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 27^TH NOVEMBER, 2018 SUIT NO: NICN/ABJ/184/2016

BETWEEN

The Incorporated Trustees of the Association

Of Medical Laboratory Scientists of Nigeria

The Incorporated Trustees of the Association

Of Medical Laboratory Scientist of Nigeria,

University of Benin Teaching Hospital Chapter,

Benin City, Edo State. . . . . . CLAIMANTS

Abdulazeez Olumoye (Chairman, Association

of Medical Laboratory Scientist of Nigeria,

UBTH Chapter, Benin City, Edo State).

Ogbeifo Osawaru Monday (Secretary, AMLSN,

UBTH Chapter, Benin City, Edo State).

AND

University of Benin Teaching Hospital,

Benin City, Edo State.

Board of Management, University of Benin

Teaching Hospital, Benin City, Edo State.

Prof. Michael Okoeguale Ibadin (Chief Medical

Director, University of Benin Teaching Hospital,

Benin City, Edo State).

Mrs A. P. Omoregie (The Director of Administration,

University of Benin Teaching Hospital, Benin City, …. DEFENDANTS

Edo State.

Dr. E. S. Idogun (H.O.D. Chemical Pathology,

University of Benin Teaching Hospital,

Benin City, Edo State).

Dr. O. Iyoha (Consultant Pathologist, University

of Benin Teaching Hospital, Benin City, Edo State).

Dr. Ugiagbe (Pathologist, University of Benin

Teaching Hospital, Benin City, Edo State).

REPRESENTATION:

NO APPEARANCE FOR THE CLAIMANTS

L. OMORODION FOR THE DEFENDANTS

JUDGMENT

The Claimants in this suit commenced this action by originating summons filed on the 19^th May, 2016 and claim the reliefs sought in the summons upon the determination of the following questions:

Whether the members of the 1^st and 2^nd claimants (including the 3^rd and 4^th claimants) who are in the employment of the 1^st defendant are affected, included and or entitled to the benefit of the judgment of this Honourable court delivered in favour of the 1^st claimant on the 23^rd day of October, 2013 in suit No. NICN/ABJ/128/2012?

Whether the member of the 1^st and 2^nd claimants (including the 3^rd and 4^th claimants) who are in the employment of the 1^st defendant are affected, included and or entitled to the benefit of the judgment of this Honourable court delivered in favour of the 1^st claimant on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014?

Whether the judgment of this Honourable court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 is binding on the 1^st and 2^nd Defendants herein who are Federal Government Parastatals and Agencies/Agents respectively and on the 3^rd and 4^th defendants herein who are public servants in the employment of the 1^st defendant, a Federal Government Parastatal?

Whether the judgment of this Honourable court delivered on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 is binding on the 1^st and 2^nddefendants who are Federal Government Parastatal and Agent respectively and on the 3^rd and 4^th defendants who are public servants in the employment of the 1^st defendant, a Federal Government Parastatal?
A declaration that the 2^nd, 3^rd and 4^th claimants and indeed members of the 1^st claimant in the employment of the 1^st and 2^ndDefendants are affected, included and/or entitled to the benefits of the judgments of this Honourable court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

The reliefs claimed are as follows:

A declaration that the 2^nd, 3^rd and 4^th claimants and indeed members of the 1^st claimant in the employment of the 1^st and 2^nd defendants are affected, included and/or entitled to the benefits of the judgments of this Honourable court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

A declaration that the defendants herein are bound by the judgment of this Honourable Court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

An order directing the 1^st – 4^th defendants to immediately recognize the existing Medical Laboratory Service Department and Federal Government Approved Scheme of Service and put same into full operation for all members of the 1st and 2^nd claimants including the 3^rd and 4^th claimants in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of service and for all administrative purposes at the University of Benin Teaching Hospital, Benin City, Edo State (1^stDefendant).

An order directing the 1^st – 4^th defendants to recognize and designate the most Senior Medical Laboratory Scientist in the 1^st Defendant’s employment as the Head and Director of the Directorate/Department of Medical Laboratory Services in line and in accordance with the judgments of this Honourable court in suit No. NICN/ABJ/128/2012 and suit No. NICN/ABJ/284/2014 delivered on the 23^rd day of October, 2013 and on the 27^th day of January, 2016 respectively; extant Laws/Acts, Rules, Circulars and approved Scheme of Service.

An order directing the 1^st – 4^th defendants jointly and severally to prepare and or prescribe schedule of duties, responsibilities and compositions for the 1^st and 2^nd claimants’ members (including the 3^rd and 4^th claimants) in this suit in accordance with extant Laws/Acts, Rules, Circulars and Scheme of Service in such a way that it will not create conflict between 1^st and 2^nd claimants’ members (including the 3^rd and 4^th claimants) and 5^th, 6^th and 7^th defendants as well as other Pathologists or other Professionals in the 1^st defendant’s services and or employment.

An order directing the defendants jointly and severally to allow members of the 1^st and 2^nd claimants (including the 3^rd and 4^th claimants) to operate/work under a separate Department in the University of Benin Teaching Hospital headed by a Medical Laboratory Scientist including the different Unit of the Department in accordance with extant Laws/Acts, Circulars, Rules, Scheme of Services and the judgments of this Honourable Court.

An order directing the defendants jointly and severally not to treat, regard and or place members of the 1^st and 2^nd claimants including the 3^rd and 4^th claimants in the employment of the 1^st defendant as being under any other department apart from the department of Medical Laboratory Services which Department and its various Units must be headed by a Medical Laboratory Scientist and not a member or person of any other profession or department (particularly Pathologists).

An order of perpetual injunction restraining the defendants, their agents, privies, assigns and or servants from treating the 1^st and 2nd claimants’ members in the employment of the 1^st defendant as being under the department of Pathology, Haematology, Microbiology or any other Department headed by a person of another on any other profession apart from Medical Laboratory Services Department headed by a Medical Laboratory Scientist in accordance with extant Laws/Acts, Rules, Circulars and approved Scheme of Services.

An order of perpetual injunction restraining the defendants either by themselves, their servants, agents, privies, assigns or any person howsoever called from bringing and or employing the service of private Medical Laboratory Scientist not being employees of the 1^st Defendant as provided by the relevant extant Laws, Rules, Scheme of Service circulars or entering into any form of contract/agreement with persons or company not being employee of the 1^st defendant employed in accordance with the relevant extant Laws/Acts, Rules, Circulars, Scheme of Services etc. to perform the duties, functions and services of the 1^st and 2^nd claimants’ members in the 1^st defendant employment or to operate in the 1^st and 2^nd defendants’ members office, laboratories, premises or departments in the 1^st defendant’s premises.

An order that the declared rights pronounced upon in favour of the claimants by the judgments of this Honourable Court in Suits Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 delivered on the 23^rd day of October, 2013 and on the 27^th day of January, 2016 respectively are notices to the defendants in this suit to respect the status of the claimants as distinct professionals in the employment of the1st defendant.

An order on the 1^st – 4^th defendants to immediately adjust, as a legal duty on them , their administrative structure in order to reflect the legally recognized status and rights attached to the 1^st and 2^nd claimants’ members including the 3^rd and 4^th claimants who are in employment of the 1^st defendant.

The claimants reliefs captured on their Originating Summons above, was supported by a 27 paragraph affidavit in support of the application, deposed to by Abdulazeez Olumoye, male, of Medical Laboratory Scientist of Medical Laboratory Services Department, University of Benin Teaching Hospital, Benin City, Edo State. Two Exhibits were attached to the affidavit which are judgments of this court in suit nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 delivered on the 23^rd day of October, 2013 and on the 27^th day of January, 2016. This was accompanied by a written address, which was adopted at the hearing.

The Defendants on the other hand also filed their memorandum of conditional appearance and counter affidavit in opposition to the originating summons. Counsel to the Defendants filed a motion for extension of time and a deeming order to properly file and serve their memorandum of conditional appearance and counter affidavit dated 1^st of July, 2016, out of time of which this court granted the application on 11^th of April, 2018. The 18 paragraph counter-affidavit deposed to by Mrs. Isoken Osa Guobadia, female, Christian of the department of administration of the 1^stDefendant dated 1^st of July, 2016, the counter affidavit is supported by a written address which was also adopted as their arguments in support of their case.

In their written address, the Claimants’ argued that their application is predicated on the 1^st Claimant’s case in suit Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 and the judgments in those cases. Pursuant to these Judgments, the 1^st Claimant and her members in the employment of the 1^st Defendant wrote the 1^st Defendant demanding for the implementation of the said judgments, of which the Defendants bluntly refused to abide. Consequent upon this, the Claimants went ahead to file this suit. C.N Dike of counsel for the Claimants adopted the address on the 12^th of July 2018, and 16^th October, 2018, as he moved the court for an adjournment to further address the court. In the Claimants’ Final Written Address, he submitted that the main issue for determination in this suit is:

“Whether the Claimants are entitled to the benefits of the judgments of this Honourable Court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 and if same are binding on the Defendants”.

Counsel submitted that the Claimants are entitled to the benefits of the judgments of this Court delivered on the 23^rd of October, 2013 in suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 and these judgments are binding on the Defendants.

He went further to argue that the 1^st Claimant is the umbrella body of all Medical Laboratory Scientists in the Public Health Sector in Nigeria and the judgments above delivered in favour of the 1^st Claimants conferred some certain legal rights on its members who are employed in the Public Health Sector of the Federation and, the 2^nd, 3^rd and 4^th Claimants by virtue of their membership of the 1^st Claimant are entitled to the benefits of these judgments.

Counsel submitted that the 1^st Defendant is a parastatal of Government, the 2^nd Defendant is the Board of Management of the 1^st Defendant, while the 3^rd and 4^th Defendants are public servants in the employment of the 1^st Defendant. He argued that judgments delivered in the above suit in contention are for the members of the Claimants employed in the 1^st Defendant and it is therefore binding on the Defendants.

Counsel further submitted that the aforesaid judgments affect parties in the following ways:

In relation to the Claimants, it declares certain legal rights in their favour which is a notice to the Defendants to respect the status of the Claimants as distinct professionals in the employment of the 1^st Defendants.
In relation to the Defendants, it is not only binding on them, it imposes a legal duty on them to adjust the administrative structure of the 1^st Defendant in order to reflect the recognised status attached to the Claimants.

Finally, counsel urged the court to resolve the question posed in the Originating Summons in favour of the Claimants. He cited Suit No. NICN/ABJ/284/2014 in support of his contention.

The Defendants formulated two issues for determination in their written address to wit:

Whether this Honourable Court has jurisdiction to entertain the action of the Claimants?

Whether on the merits of the case of the Claimants can succeed. [sic]

N.L Omorodion of counsel for the Defendants submitted that this Court lacks the jurisdiction to entertain the case of Claimants for the following reasons:

This court has no jurisdiction to interpret its own judgment. He cited Dingyadi v. INEC [2011] 10 NWLR Pt.1255,347, 401; Dingyiadi v. INEC (No.2) 2010 18 NWLR Pt.1224, 154.

The Defendants are not bound by the judgments contained in suit Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 not being parties to the cases. He cited Uwazuruike v. A.G Fed. [2013] 10 NWLR Pt.1361,134; Kokoro-owo v. Lagos State [2001] 11 NWLR Pt.723,237.

The court is functus-officio in respect of the case in suit No. NICN/ABJ/128/2012 and suit No. NICN/ABJ/284/2014. He cited Bakare v. Apena [1986] 4 NWLR Pt.33,1; Majoroh v. Fassassi [1986] 5 NWLR Pt.40,243.

This suit is an abuse of the process of this court and the court lacks the vires to entertain the case as there is no dispute between parties. Cited Mark v. Eze [2004] 5 NWLR Pt.865, 54 ; Ebhodaghe v. Okoye [2004] 18 NWLR Pt.905, 472

Proper parties are not before the court in that the Claimants deliberately omitted the names of all the parties to the original suits. Cited Plateau state v. A.G Fed [2006] 3 NWLR Pt.967,346; Amuda v. Ajobo [1995] 7 NWLR, Pt.406, 170.

That this court has taken a position that the judgment in one of the cases i.e NICN/ABJ/128/2012 is binding on parties whether or not they were parties to the case.

On issue two, counsel submitted that if the issue of jurisdiction is over ruled, then the case is unmeritorious because parties cannot ask the Court to reopen a case that has been decided because the party was negligent in presenting his case. He cited Olafunmise v. Falana [1987] 1 NWLR Pt.47, 64. He urged the court to dismiss this suit with costs.

Counsel to the Claimants filed a reply on point of law on the 16^th of May, 2018, wherein he submitted that this court has the power to entertain matters including the judgment of this court and empowered to do so under the 3^rd Alteration Act of the 1999 Constitution of the Federal Republic of Nigeria, Section 7(1) (c)(v) of the National Industrial Court Act 2006 and the Rules of the Court (2017). He further submitted that this suit is not an abuse of court process but to determine the construction of the judgment in suits No. NICN/ABJ/284/2014 and NICN/ABJ/128/2012. He reiterated that the suit is competent. In response to Defendants’ issue 2 raised in their counter affidavit, he submitted that this suit is not seeking to re-open suits No. NICN/ABJ/284/2014 and NICN/ABJ/128/2012 rather, the Claimants are seeking the interpretation of the above mentioned suits. He argued that all medical laboratory scientist working in any Federal Health Institution are subsumed in the 1^st claimant in the said judgements.

The counsel therefore urged the court to hold that it can entertain same and deliver judgment in favour of the claimants.

I have read carefully the addresses of counsel on both sides filed in this suit, and I have formulated two issues for determination to wit;

Whether or not this court has jurisdiction to entertain this suit

Whether or not the Claimants are entitled to their claims

On issue one, the law is iron clad that jurisdiction is fundamental and crucial in any adjudication because if the court lacks jurisdiction to entertain a suit, the proceedings of a court will be afflicted by a fundamental and deadly virus which will result in fatality. In legal parlance the proceedings will be null, void and of no effect, no matter how brilliantly they might have otherwise been conducted-Per F. Omoleye, J.C.A in Eregbowa& Ors. V. Obanor & Ors. [2010] LPELR-8964 (CA). See also Ike v. INEC & Ors. [2010] LPELR-4293; N.D.I.C v. C.B.N [2002] 7 NWLR (Pt.766) 272.

It follows therefore that if indeed this court lacks the jurisdiction to entertain this suit, the entire proceedings will be a nullity.

The counsel to the Defendants itemised six reasons why he believes that this court lacks jurisdiction and I will respond to each one in no particular order.

The Defendants contention is that this court has no jurisdiction to engage in interpreting its own judgment. I beg to differ. In Adekunle v. Adedeji [2014] LPELR-22342 (CA) the Court of Appeal per Owoade, J.C.A said

“Clearly, it is part of judicial function to interpret judgments when the courts are called upon to do so. In fact, for its own part, it is a sacred duty of the judiciary to interprete laws. See Madia Tech (Nig.) Ltd. V. Adesina [2005] 1 NWLR (Pt. 908) 461; A.G Abia State v. A.G Fed [2003] 4 NWLR (Pt.809)124; Amadi v. N.N.P.C. [2000] 6 SC (Pt.1) 66 at 94-95.”

Furthermore, Section 7(1)(c)(v) of the National Industrial Court Act, 2006 confers this court with exclusive jurisdiction in matters relating to the determination of any question as to the interpretation of any award or judgment of the court. The Claimants in this suit have only come to this court for the interpretation of the judgments in suit No. NICN/ABJ/128/2012 and suit No. NICN/ABJ/284/2014 as it affects their legal rights. It is in the light of the above that I discountenance this argument of the defendants.

Next is whether the Defendants are bound by the Judgments contained in suit Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014, the judgements having declared certain rights to medical laboratory scientist in all public health institutions, in effect, extend to the rights of the Claimants’ in this suit, the 2^nd– 4^th Claimants’ are public servants engaged in the public health sector of the 1^st Defendant, and are equally entitled to the rights granted under the Judgment, in so far as it affects the rights of the Defendants as medical Laboratory Scientists in a public health institution.

The Defendants argued that this court is functus-officio in respect of the aforementioned suits and this suit is an abuse of court processes as there is no dispute between the parties. As already stated above, the Claimants are only in this court for the interpretation of judgments previously delivered by this court as it affects their legal right, they instituted this action by way of originating summons, which they are allowed in law to do. See the case of Ejura v. Idris [2006] 4 NWLR (Pt.971) Pg.538 where the court Per Rhodes-Vivour, J.C.A opined that

“Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such dispute e.g. where the issue is to determine questions of construction…”

On the issue of proper parties and the ground that this court has taken a position that the judgment in one of the cases i.e. NICN/ABJ/128/2012 is binding on parties whether or not they were parties to the case, I find that the parties are different in this suit, more so, the case is predicated on the denial of the perceived rights of the claimants under those judgements. The necessary parties to this action based on the process filed before this court are members of 1^st claimant in the 1^st Defendant and the Defendants, as these are the parties that will be affected.

Lastly that the case is unmeritorious because parties cannot ask the court to reopen a case that has been decided because the party was negligent in presenting his case. This issue has been overflogged already as it is. The Claimants are only here for the interpretation of the aforementioned judgments of this court.

It is important to note that on the 16^th of October, 2018 while the counsel to the defendants was adopting his written address in support of the counter-affidavit to the originating summons, he raised a new issue by arguing that the 1^st Claimant in this suit is not a juristic person. This is not contained in their written address and the Counsel for the Claimants objected to it and urged the court to discountenance same, as the Defendants never raised this issue in their counter affidavit and written address. It is trite law that any attempt to introduce a new issue not pleaded which will amount to overreaching a party will not to be countenanced by the court. More so the particulars of this fact was not placed before the court, and besides, there are other claimants in the suit to sustain the action. The issue is hereby discountenanced. I so hold.

It is in the light of all that has been stated above that I find that the objection of the Defendants to the Originating summons of the Claimants is misconceived, unmeritorious and is hereby dismissed. I so hold.

The questions the court is been called upon to address in the instant suit are as stated in the said Judgments quoted below:

NICN/ABJ/128/2012

“A declaration that by, virtue of the provisions of the Laws/Acts, Rules, Relevant Circulars. (Issued on different dates) and approved Schemes of Service, members of the Plaintiffs’ Association, Medical Laboratory Scientists, are distinct ‘professionals and consequently entitled to be accorded due recognition in the employment of the Defendant (particularly at the Federal Medical Centre, Asaba, Delta State).
A declaration that by virtue of the provisions of the Laws/Acts, Rules, Relevant’ Circulars issued on different dates and approved Scheme of Service, members of the plaintiff’s Association are legally entitled to operate/work under a separate ‘department in the employment of the Defendants.

A declaration that the Department of Medical Laboratory Service (which the Plaintiff’s belong and recognized officially by the 3^rd and 4^th Defendants) will not be in conflict with any other Department, in the areas of compositions, responsibilities and schedule of duties that may be prescribed by the Defendants in accordance with extant Laws/Acts Rules, Circulars and Scheme of Service.

Declaration that members of the Plaintiffs’ Association as a legally recognized department, are entitled to relate with other departments in the discharge of their professional duties towards an efficient Health Care Delivery system at the Federal Medical Centre, Asaba, Delta State.

An order directing the Defendants to immediately recognize the existing Medical Laboratory Services department and Federal Government Approved Scheme of Service and put it into full operation for all members of the Plaintiffs’ Association in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of Service aforementioned and for all administrative purposes at the Federal Medical Centre, Asaba.”

NICN/ABJ/284/2014

RELIEFS GRANTED

“DECLARATION that the Medical Laboratory Scientists employed in the service of the defendants are by virtue of the said Act. No. 11 of 2003 and/or the scheme of service approved by the Federal Government for their cadre entitled to autonomy of practice within their field of competence.

AN ORDER setting aside all decisions taken by the defendants which are contrary to the provisions and the scheme of service approved by the Federal Government for Medical Laboratory Scientists.

INJUNCTION restraining the defendants from eroding or undermining autonomy of practice by Medical Laboratory Scientists either by permitting non-medical Laboratory Scientists to intermeddle in the practice of Medical Laboratory Science or by imposing supervisory control of non-scientists on Medical Laboratory Scientists.

AND

A Declaration that the Medical Laboratory Science Council of Nigeria (6^th Defendant) is the Statutory Regulatory for the practice of Medical Laboratory Science/Medical Laboratory Services in Nigeria.

A Declaration that only Professionals regulated and or subject to the Council in Nigeria and who are qualified Medical Laboratory Scientists that are entitled to practice as Professional Medical Laboratory Scientists within the meaning and intendment of the Medical Laboratory Science Council of Nigeria Act No. 11 of 2003.

An Order of Injunction restraining the 1^st Plaintiff, 1^st – 5^th Defendants and or other members/privies who are not subject to and or under the statutory regulation of the 6^th Defendant from representing, holding themselves out or continuing to represent and or hold themselves out as authorised to occupy any position and or assume any such position reserved for qualified Medical Laboratory Scientists or otherwise interfering in the performance and discharge of the functions/duties of a Medical Laboratory Scientist.”

A careful perusal of the above decision reveals that the members of the 1^st Claimant have been granted certain rights under these judgments and particularly reliefs 1, 2, 4 and 5 in suit No NICN/ABJ/284/2014 which clearly dictates the rights of the Claimants’ in this suit, the 2^nd– 4^th Claimants’ are public servants engaged in the public health sector and members of the 1^st Defendant, and as declared in the aforementioned suits, are equally entitled to the rights granted under these Judgments, it is not in doubt that the 1^st Defendant is a public health institution and as such cannot exempt itself from the rights granted to the Claimants in the present suit, in so far as the reliefs granted clearly covers the Claimants as medical Laboratory Scientists and the Defendants as a public health institution.

Premised on the above captured reliefs granted in suit Nos NICN/ABJ/128/2012 and NICN/ABJ/284/2014 I have reached the conclusion and resolution that the same rights as clearly enunciated and granted in the above cited Judgments are applicable to the Claimants’ in this suit, this is so having clearly established that the 1^st Defendant is a public health institution and the Claimants’ are indeed medical laboratory Scientists. I therefore resolve the questions for determination in the present suit in favour of the Claimants. I so hold.

Flowing from the above are the consequential reliefs upon these declaration. The reliefs claimed by the Claimants are as captured in their Originating Summons, and for the sake of clarity, I hereby declare and Order as follows:

A declaration that the 2^nd, 3^rd and 4^th claimants and indeed members of the 1^st claimant in the employment of the 1^st and 2^nd defendants are affected, included and/or entitled to the benefits of the judgments of this Honourable court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

A declaration that the defendants herein are bound by the judgment of this Court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

An order directing the 1^st – 4^th defendants to immediately recognize the existing Medical Laboratory Service Department and Federal Government Approved Scheme of Service and put same into full operation for all members of the 1st and 2^nd claimants including the 3^rd and 4^th claimants in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of service and for all administrative purposes at the University of Benin Teaching Hospital, Benin City, Edo State (1^stDefendant).

An order directing the defendants jointly and severally not to treat, regard and or place members of the 1^st and 2^nd claimants including the 3^rd and 4^th claimants in the employment of the 1^st defendant as being under any other department apart from the department of Medical Laboratory Services which Department and its various Units must be headed by a Medical Laboratory Scientist and not a member or person of any other profession or department (particularly Pathologists).

An order that the declared rights pronounced upon in favour of the claimants by the judgments of this Court in Suits Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 delivered on the 23^rd day of October, 2013 and on the 27^th day of January, 2016 respectively are notices to the defendants in this suit to respect this status of the claimants as distinct professionals in the employment of the1st defendant.

Reliefs 4, 5, 8, 9, and 11 as captured in the Originating Summons are however within the internal, administrative and domestic affairs of the 1^st Defendant, more so the 1^st Defendant is a creation of statute. The court is not expected to dabble into or interfere in such matters, as there are administrative machinery to be put in place, See UNILORIN V RASHEEDAT ADESINA 2014 LPELR 23019(SC)

“The courts have no jurisdiction to interfere in the internal or domestic matters of a University. Such matters are within the exclusive province of the Senate of the University and the visitor. But where it becomes clear that in resolving domestic disputes the University is found to have breached the civil rights and obligations of the respondents thereby raising issues of public import, the courts would have jurisdiction”.

Likewise the court will not grant an unenforceable order for the above reason, the Court has not been availed with the facts as to the administrative procedure to be followed and the conditions precedent to the setting up of a new department, and whether these conditions and capacity are on ground before these reliefs can be activated, it is the position of the Law that neither will a court grant an order in vain nor will the court based its decision on speculation devoid of hard facts. This is supported by the reasoning laid down in Adesina V. Unilorin supra, moreover the Claimants’ case is mainly based on the Judgments of this court and no fact was adduced, apart from the affidavit in support of the application, as to what will form the court’s basis for the grant of the stated reliefs see PLATEAU STATE OF NIGERIA &ANOR V. ATTORNEY GENERAL OF THE FEDERATION & ANOR 2006 LPELR 2921 SC

“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation if it is not supported by facts or very low on facts but very high in guesses…………………………………………………”

It is based on the above that I find that reliefs 4, 5, 8, 9, and 11 as contained in the Claimants’ Originating Summons are not tenable, I so hold.

In all reliefs 1, 2, 3, 6, 7, and 10 as captured in the Claimants’ originating summons succeeds and are hereby granted as follows:

A declaration that the 2^nd, 3^rd and 4^th claimants and indeed members of the 1^st claimant in the employment of the 1^st and 2^nd defendants are affected, included and/or entitled to the benefits of the judgments of this Honourable court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

A declaration that the defendants herein are bound by the judgment of this Honourable Court delivered on the 23^rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and that of 27^th day of January, 2016 in suit No. NICN/ABJ/284/2014 respectively.

An order directing the 1^st – 4^th defendants to immediately recognize the existing Medical Laboratory Service Department and Federal Government Approved Scheme of Service and put same into full operation for all members of the 1st and 2^nd claimants including the 3^rd and 4^th claimants in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of service and for all administrative purposes at the University of Benin Teaching Hospital, Benin City, Edo State (1^stDefendant).

An order directing the defendants jointly and severally to allow members of the 1^st and 2^nd claimants (including the 3^rd and 4^th claimants) to operate/work under a separate Department in the University of Benin Teaching Hospital headed by a Medical Laboratory Scientist including the different Unit of the Department in accordance with extant Laws/Acts, Circulars, Rules, Scheme of Services and the judgments of this Honourable Court.

An order directing the defendants jointly and severally not to treat, regard and or place members of the 1^st and 2^nd claimants including the 3^rd and 4^th claimants in the employment of the 1^st defendant as being under any other department apart from the department of Medical Laboratory Services which Department and its various Units must be headed by a Medical Laboratory Scientist and not a member or person of any other profession or department (particularly Pathologists).

An order that the declared rights pronounced upon in favour of the claimants by the judgments of this Honourable Court in Suits Nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 delivered on the 23^rd day of October, 2013 and on the 27^th day of January, 2016 respectively are notices to the defendants in this suit to respect this status of the claimants as distinct professionals in the employment of the1st defendant.

The Defendants are to ensure that all administrative steps and requirements to ensure full implementation of this judgement are put in place.

I make no order as to cost

Judgment is accordingly entered.

HON. JUSTICE A. A. ADEWEMIMO

JUDGE