NIGERIA ASSOCIATION OF GENERAL PRACTICE PHARMACIST EMPLOYERS v. PHARMACISTS COUNCIL OF NIGERIA & ORS (2013)

NIGERIA ASSOCIATION OF GENERAL PRACTICE PHARMACIST EMPLOYERS v. PHARMACISTS COUNCIL OF NIGERIA & ORS

(2013)LCN/6556(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/K/206/2005

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria

Between

NIGERIA ASSOCIATION OF GENERAL PRACTICE PHARMACIST EMPLOYERS (NAGPPE) Appellant(s)

AND

1. PHARMACISTS COUNCIL OF NIGERIA
2. COMMISSIONER FOR HEALTH, KADUNA STATE
3. ATTORNEY GENERAL OF KADUNA STATE Respondent(s)

RATIO

HOW TO COMPUTE TIME TO DETERMINE WHETHER A CAUSE OF ACTION IS STATUTE-BARRED

The law is well developed on how to compute time to determine whether a cause of action is statute barred, and that is by looking at the writ of summons and statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed. And it is only the plaintiff’s claim that is considered relevant for that purpose. See MOYOSORE VS. GOV. KWARA STATE (2012) NWLR (Pt. 1293) 242; MILITARY ADMINISTRATOR EKITI STATE VS. ALADEYELU (2007) 14 NWLR (Pt. 1055) 619; ITF VS. NRC (2007) 3 NWLR (Pt.1020) 28; F.R.I.N. VS. GOLD (2007) 11 NWLR (Pt. 434) 1452. PER MBABA, J.C.A.

THE POSITION OF THE LAW IN DETERMINING WHETHER AN ACTION IS STATUTE BARRED

QUALIFICATION OF A CERTIORARI APPLICATION

I think rules or regulations or guidelines, purported to be made in pursuance of a statute, to regulate conduct, have every attribute of a quasi-judicial instrument to qualify for a certiorari application. Even, then the law seems to have moved beyond the scope of the case of R.V. HUNT (1820) 3 BS LTD 444; and NWANKWO VS. SHITTA-BEY (1999) 10 NWLR (Pt. 621) 98 which the learned trial judge relied on. The holding of UWAIFO JCA (as he then was) in the case of ONUZULIKE VS. CDS ANAMBRA STATE (1992) 3 NWLR (Pt. 232) 791 is instructive here:
“Certiorari or prohibition will lie against anybody or person having a legal authority to determine questions affecting the right of subjects, whenever the duty implies at least that that body or person should act fairly or in accordance with a statutory provision.”
See also the case of HART VS. MILITARY GOVERNOR RMRS STATE (1976) 11 SC, where the Supreme Court said:
“…although the Military Governor was not sitting as a Court, stricto sensu, it is our view, nevertheless, that in ascertaining the facts and directing finally that a much lighter punishment should be meted out to the appellant he was under a duty to act judicially or fairly. Since in the discharge of that duty he has assumed the power of jurisdiction which he did not possess under the Constitution of the State, certiorari would lie to quash his order that the appellant be retired from the public service of the Rivers State”. PER MBABA, J.C.A.

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Kaduna, delivered by HON. JUSTICE A.M. LIMAN, on 25th July, 2003, dismissing the Appellants’ claims, which were for:-
“i. An Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the decisions of the respondent as contained in the Letter of 15th November, 1995.
ii. An Order of prohibition prohibiting the Respondents from implementing or enforcing the said decision of the respondents contained in the letter dated November, 1995.
iii. Declaration that the new conditions laid down as stipulated by the respondents in their letter dated 15th November, 1995 for the registering or renewal of the registration of Pharmaceutical premises are unconstitutional, unreasonable, made without or in excess of jurisdiction, irregular, unlawful and void.
Iv. An order of mandamus compelling the respondents to register or renew the registration of the pharmaceutical premises of the applicants who fulfill the requirements that had existed before the new requirements, objected to in this action, were introduced.
v. Injunction restraining the respondents by themselves, their agents, servants, privies or otherwise howsoever from implementing or enforcing the said decision in processing registration or renewal of the registration of the pharmaceutical premises of the applicants.
Appellant was the plaintiff at the lower Court, and the grounds for seeking the reliefs were:
“1. That the guidelines for registration of pharmacists and pharmaceutical premises for 1996 and years ahead has excluded the applicants/appellants from carrying on their legitimate business, and
2. That the said guidelines for registration of pharmacists and pharmaceutical premises for 1996 and years, ahead is unlawful and therefore void.”
Appellant filed the Notice of appeal on 2/9/03, as per pages 137 and 138 of the Record of Appeal and disclosed 3 grounds of Appeal. Appellant later filed Amended Notice of Appeal with the leave of this Court, on 17/7/06, wherein 8 grounds of appeal were raised, as follows:
“GROUNDS OF APPEAL
i. The Ruling is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
ii. The learned trial judge erred in law when he refused the Applicant/Appellant relief No. 1 on the ground that it is caught by limitation.
PARTICULARS OF ERRORS IN LAW
a. The discretion vested in the court to determine which application is affected by undue delay is to be exercised subject to the parameters stated in Order 47 rule 4 of the Federal High Court (Civil Procedure) Rules 2000.
b. The trial court failed to allow the exercise of this discretion to be guided by the said parameters but simply held that relief No. 1 was caught by sub rule 2 Rule 4.
c. Relief No. 1 is not in any way affected by limitation within the meaning of Order 47 rule 4.
d. On the evidence on the records it was only in March 2001 that the respondents sought to implement the regulation in Annexure C and the same was challenged in this action filed on 13th March 2001.
e. Limitation can only properly be reckoned from the dated it was sought to apply to Annexure.
III The learned trial judge erred in law when he held that relief’s (II), (III), (IV) and (V) were consequential on relief No. 1 and were therefore caught by the said Order 47 rule 4(1).
PARTICULARS OF ERRORS IN LAW
a) Reliefs (II), (III), (IV) and (V) are not in any way consequential on relief No.1.
b) Only relief No. (V) can be said to be consequential and even then it is sustainable on any of reliefs (II), (III) and (IV)
c) No limitation period has any bearing on the said reliefs contrary to the holding of the trial court.
IV. The learned trial judge erred in law when he held that the poison and Pharmacy Act 1958 was renamed as Pharmacy Act Cap 26 and retained in 1990 as Cap. 357 Laws of the Federation.
PARTICULAR OF ERRORS IN LAW
a) Contrary to the holding of the learned trial judge the poison and Pharmacy Act was not renamed and it is not the something as Pharmacists Act Cap 357 of the Laws of the Federation, 1990 which was by the Pharmacist Council of Nigeria Decree (now Act) No. 19 of 1992.
b) The Poison and Pharmacy Act is still extant.
V. The learned trial judge erred in law when he held that the rules conveyed in Annexure “C” were in pursuance of the powers of the 1st respondent under Section 1(d) of Act No. 91 of 1992.
PARTICULARS OF ERRORS IN LAW
a) The offending portions of Annexure C are certainly not saved by Section 1(d) of Act No. 19 of 1992 having regard to the definition of practice as a pharmacist in Section 20 of the Act and other section of the Act prescribing conditions precedent to practicing as a pharmacist.
b) The carrying on of a retail business comprising the dispensing or selling of any drug of poison by the body corporate, company or firm does not amount to practice of pharmacy profession.
c) The offending portions or Annexure C are clearly illegal and unlawful having regard to section 20 of the poison and pharmacy Act.
VI. The learned trial judge erred in law when he held that certiorari is an inappropriate remedy in this case in that it is only available to quash judicial or quasi-judicial decisions.
PARTICULARS OF ERRORS IN LAW
a) Contrary to the holding of the learned trial judge an order of certiorari lies not against bodies exercising judicial or quasi-judicial powers by also against statutory bodies exercising purely administrative functions where such body “assumed a jurisdiction to perform an act unauthorized by law” or acted in excess of jurisdiction.
b) The decision caviled at these proceedings were clearly unauthorized by law.
VII. Alternatively the learned trial judge erred in law when he dismissed the application on the ground that the exercise of the powers of the 1st respondent under decree No. 91 of 1992 is not judicial in nature.
PARTICULARS OF ERRORS IN LAW
a) An exercise of power that has the effect of depriving a particular class of people of means of their livelihood requires a fair hearing and is therefore a quasi judicial function.
b) A decision from such exercise of power which is targeted at a class of people is discriminatory and therefore inconsistent with Section 42 of the 1999 Constitution.
VII. The learned trial judge erred in law when he dismissed the suit of the appellant when the issues involved had already been judicially decided upon in 1996 in favour of the appellant by the Lagos Division of the Federal High Court in suit No FHC/L/CS/234/96 between the appellant and the 1st respondent.
PARTICULARS OF ERRORS IN LAW
a) The Federal High Court is one and any decision given in any matter by any division of the Federal High Court Constitutes the Decision of the Federal High Court on the matters.
b) The Federal High Court’s decision in Suit No. FHC/CS/234/96 is now res judicata between the parties in this case on the issues in this case.”
Appellant filed their Brief of Argument on 27/7/2006 with the leave of this court, granted on 6/7/2006, and formulated four (4) issues for determination, namely:
“1. Whether on the evidence before the court and on a proper consideration of the reliefs claimed, Order 47 Rules 4(1) and (2) was correctly applied by the lower court to refuse the reliefs (Grounds 1, 2 and 3)
II. Whether the Poison and Pharmacy Act, Cap 535 Laws of The Federation 1990 is still extant (Ground 4)
III. Whether Annexure C was correctly ascribed by the lower court to the powers of the 1st Respondent under Section 1(d) of the Pharmacists Council of Nigeria Act No. 91 of 1992. (Ground 5)
IV. Whether on the materials before the court and the applicable principles of law the learned trial judge was right to refuse the claim for an order of certiorari” (Grounds 6 and 7)
The 1st Respondent filed their Brief of argument on 5/10/2011, with the leave of this court, obtained on 29/9/11. They formulated 3 (three) issues for determination thus:
“1. Whether on the evidence and materials before the court the learned trial judge was right to hold that the application for an order of certiorari was time barred in accordance with Order 47 Rules 4(1) and (2) Federal High Court (Civil Procedure) Rules.
2. Whether the learned trial judge was right to hold that reliefs (II), (III), (IV) and (V) being consequential to relief (1) must naturally fail following its being caught by the limitation provisions of Order 47 Rule 4(1) and (2) of the Federal High Court (Civil Procedure) Rules 2000; and also the inordinate delay before filing for the orders for judicial review.
3. Whether the learned trial judge was right to hold that the 1st Respondent is rightly empowered by the Pharmacist Council of Nigeria Decree 91 of 1992 to issue guidelines for the regulation of Pharmacy Practice in every aspect as conveyed by Annexure ‘C’.”
The 2nd and 3rd Respondents filed no brief. Earlier, on 11/6/2013, Appellant had withdrawn the appeal against the 4th Respondent, Attorney General of the Federation, with this court dismissing the appeal against the same on 26/6/13. When this appeal was heard on 28/10/13 the parties, through their Counsel, adopted their briefs and urged us, as per their briefs.
Arguing the appeal, CHIEF AKIN OLUJINMI SAN (who settled the brief), with him, IFEANYI EGWASI ESQ., submitted that Appellant were not aware of the existence of the guidelines contained in Annexure C until March 2001 and referred to paragraph 11 of page 4 of the Records; he said that in the light of the uncontradicted evidence before the lower court, it was erroneous for the trial judge to hold that this action was caught by the limitation period as stipulated in Order 47 Rule 4(2) of the Federal High Court (Civil Procedure) Rules 2000.
Senior Counsel reproduced the provisions of Order 47 Rule 4 of the F.H.C. (Civil Procedure) Rules 2000 and submitted that there was no undue delay by the appellant in making their application, as it was made 14 days after the appellant got notice of Annexure C, and that since the orders in Annexure C were only sought to be implemented in March 2001, time would only start to run from then. He relied on the case of EDJERODE VS. IKINE (2001) 18 NWLR (PT.745) 446 at 488, where the Supreme Court held:
“Many statutes and subsidiary legislations usually lie dormant in the statute books. There is no obligation on those likely to be affected by them to rush to litigation. But when any step is taken to implement such a statute or subsidiary legislation e.g. a register declaration of custom regarding a chieftaincy, then a dispute would arise giving rise to a cause. It is then the person aggrieved can prosecute an action on it effectively”.

Counsel submitted that it was therefore wrong to hold that the reliefs claimed in this case were affected by limitation period; he said that Orders 474(i) (ii) were wrongly applied to the case; that Appellant filed the action timeously. He further argued that even in cases where there has been undue delay, the court cannot, summarily, so conclude, without considering whether having regard to the delay the grant of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration; that such are the parameters subject to which the court can arrive at a decision that there has been undue delay in bringing application. He relied on Order 47 Rule 4(1) of the FHC (Civil Procedure) Rules, 2000; CBN VS. SAP NIG LTD [2005] 3 NWLR [PT. 911] 152 at 177.
Counsel further submitted that the holding of the lower court that reliefs (II),(III), (IV) and (V) were consequential on relief (1) was erroneous that reliefs (II) was for prohibition, (III) for a declaration, each being independent of the other and subject to different considerations . He submitted that, normally, certiorari or prohibition would lie against anybody or person having a legal duty to determine questions affecting the rights of subjects whenever the duty implies at least that body or person should act fairly or in accordance with a statutory provision. He relied on the case of ONUZULIKE VS. ANAMBRA STATE [1992] 3 NWLR (PT.232) 791 AT 815.
Mandamus, on the hand, he said, is directed to a body or tribunal or inferior court, requiring the performance of some specified public duty in which the applicant has sufficient legal interest, and the performance of the duty need not involve a judicial function; that a demand must be made for the performance of the public duty FAWEHINMI VS. AKILU [1987] 4 NWLR [PT.67] 797 at 833; SHITTA-BEY VS. F.P.S.C. [1981] 1 SC.
A declaratory relief in the con of judicial review application, Counsel submitted, declares the legal position with regard to the decision of an inferior body, person or tribunal. He argued that from the foregoing, it is incontestable that the four types of reliefs sought were independent of each other, and non was consequential on any other, contrary to the holding of the trial court. He relied on the case of AG. FEDERATION VS. A.I.C. LTD [2000] 10 NWLR [PT.675] 293 at 306.
Counsel admitted that only the relief (V) injunction – could properly be said to be consequential and sustainable on any of the other 4 reliefs.
Counsel submitted that if the trial court had considered the respective reliefs, independently, it would not have taken into the error. He delved into the detail of what the reliefs I to IV sought, and the averments in the supporting affidavit. He also relied on the Section 20(1) of the Poison and Pharmacy Act Cap 535 LFN 1990 on the rights of the Appellant to carry on their business, as well as on section 52 of the same Act, which gives the President and the Minister power to make regulations under the poison and Pharmacy Act, Counsel submitted that, considered against sections 3 and 20 of the Act, and regulation 4(2) made there under, Annexure C made by the 1st Respondent and in, particular, paragraphs 2, 7 and 15 thereof are clearly ultra vires the Respondents and unlawful. He argued that Annexure C was issued by the Inspectorate Unit of the Ministry of Health, Kaduna State, rather than by the President or Minister, under S. 52 of the Act.
Counsel further relied on Section 20 of the Act which stipulates that:
“….nothing in the Act shall operate to prevent a body corporate, a company or firm as defined in the companies and Allied matters, Act from carrying on a business which comprises the dispensing or selling of any drug or poison….”
That Paragraph 2 of Annexure C seeks to withdraw that right, when it states that:
“Retail premises owned by non- pharmacists will not be registered any more once the present superintendent pharmacists resigns”.
Counsel added that under Section 20 of the Act, all that was needed for such a business unit to run was the engagement of a superintendent pharmacist and if one resigns another can be engaged, and so the resignation of one should not lead to close of business! Thus, he submitted, that the guidelines was not only unlawful but also unreasonable; that paragraph 7 thereof also conflicts with the provisions of section 20 of the Act, concerning whole sale practice, and that the requirement of a registered pharmacists to be on the Board of Directors of the company doing the whole sale practice; that whereas the Section 20 of the Act does not require such registered pharmacist to be reflected on the Memorandum of Association of the company, the Annexure C stipulates so and this is ultra-vires the provision of the Act.
Counsel also pointed out conflict between section 3 of the Act and paragraph 15 of Annexure C on the character of retention fee, leading to double taxation. He added that there was need for the trial court to make an order of prohibition to stop the Respondents from implementing Annexure C, as well as an order of mandamus for the Respondents to register applicants who fulfilled the requirements that existed before Annexure C for registration or renewal of registration of business premises. He referred us to paragraphs 7 to 9, at pages 3 and 4 of the Records and relied on the case of ONUZULIKE VS. ANAMBRA STATE (supra).
He added that the duty to register business premises for sale of drugs and poison is a public duty conferred on the Registrar of the 1st Respondent by section 3 of the Act, Cap 535; that Appellant had deposed to show that the 1st Respondent had refused to register them after collecting the fees for registration (see paragraph 9 page 4 of the Records); that 1st Respondent is not vested with any discretion to refuse to register an applicant who satisfies the requirements for registration under section 3 of the Act. He relied on the case of FAWEHINMI VS. AKILU [1987] 4 NWLR [PT. 67] 833; SHITTA-BEY VS. F.P.S.C. (SUPRA)
Counsel also submitted that the trial Court needed to allow the Relief (V) to declare that Annexure C was contrary to the provisions of Cap 535 and to that extent ultra vires the Respondents. He urged us to grant the said 3 relief which the trial court failed to grant-Prohibition, declaration and mandamus, pursuant to Section 16 of the Court of Appeal Act.
Arguing Issues 2 and 3 together (covering grounds 4 and 5 of the Amended grounds). Counsel submitted that the lower court was of the view that Annexure C was made pursuant to section 1(d) of Decree (now Act) No, 91 of 1992. He submitted that this was erroneous. He submitted that the Act No. 91 of 1992 (Pharmacists Council of Nigeria) deals, generally, with the practice of the profession of Pharmacy and provides criteria for qualification and code of conduct for the practitioners; that section 1(d) of the Act, on which the lower court hinged its decision, merely empowers the 1st Respondent, inter alia, to “Regulate And Control The Practice Of The Profession In All Its Aspects And Ramifications”.
Counsel quoted and relied on section 20 of the Act – No. 91 of 1992, which defines situations when a person may be deemed to practice as a Pharmacist, and argued that it was unarguable that Appellant who merely set up business for the sale of drugs and poison, under the control and management of a Superintendent Pharmacist, did not come within that definition.
Counsel said that Cap 535 and Act No. 91 of 1992 deal with different things; that while the former deals with how a corporate body, a company or firm can set up business for the sale of drugs and poison, the latter (Act 91 of 1992) deals with qualifications and code of conduct for those who engage in the practice of Pharmacy. And while sections 1 and 2 of Act No. 91 are directed at human persons, the relevant part of section 20 of Cap 535 is directed at body corporate, companies or firms. Therefore, Counsel said, it was clear that regulations which relate to the Applicants who only establish business for the sale of drugs and poison can only issue from those properly delegated under section 52 of Cap 535 – Poison and Pharmacy Act; that the Lower Court was wrong when it held that the poison and Pharmacy Act was renamed and retained in the 1990 Laws of the Federation as Cap 357(page 134 of the Records); that no such thing happened. Rather, that the correct position is that Cap 357 was the precursor of Act 91 of 1992, as Section 26(1) of Act 91 of 1992 repealed Cap 357; that the Poison and Pharmacy Act Cap 535 has never been repealed or renamed, and it is unaffected by Act 91 of 1992, which he said has no application to the Appellant.
On issue 4 covering grounds VI and VII, Senior Counsel submitted that the trial court was in error when it held that certiorari was an inappropriate remedy, on the ground that in issuing Annexure C, the 1st Respondent was not exercising any judicial or quasi judicial function. Counsel said it was important to clarify the point that the prayer of the Appellant for certiorari was directed at the decisions contained in the letter dated 15th November, 1995 (See page 42) and not the mere issuance of Annexure C, which appeared to predicate the holding of the Lower Court.
Counsel repeated their submission in paragraphs 6.13 as to when an order of certiorari or prohibition can issue, and relied on the ratio of UWAIFO JCA (as he then was) in the case of ONUZULIKE VS. ANAMBRA STATE (SUPRA). He submitted that, contrary to the position taken by the trial judge, it is not an invariable rule that an inferior body or person must be exercising judicial or quasi-judicial function; that it is sufficient if the duty implies that it should act fairly or in accordance with statutory provision. He relied on the case of THE KING VS. MINISTER OF HEALTH EX-PARTE YAFFE [1930] 2 K.B. 98 (where he said the court of Appeal in ONUZULIKE VS. ANAMBRA STATE (supra) drew strength); that the English court held:
“……an order made by the Minister under Section 40 subsection 3 of the Housing Act 1925, in respect of which the statutory conditions under which alone it can be made, have not been complied with, is not an order which when made, can, by reason of section 40 subsection 5 of the Act have statutory effect; that as the order in question was made without statutory conditions having been complied with it is ultra vires, and therefore that a writ of certiorari should issue for the purpose of quashing it.”
Also referring to the case of HART VS. MILITARY GOVERNOR RIVERS STATE (1976) 11 SC, Counsel submitted that it was quite clear that, where the duty of the inferior body or person implies that he should act fairly or in accordance with a statutory provision, certiorari can properly lie against the body or person. He further relied on 1988 edition of the White book vol. 1 page 795 under order 53 1/14/11, where it is stated:
“At various stages (particularly between the 1920s and the 1965) it was thought that what were then the prerogative orders of certiorari, prohibition and mandamus only lay against persons or bodies with judicial or quasi-judicial functions, and did not apply to an authority exercising administrative powers. The distinction between judicial and administrative activities was swept away by the decision of the House of Lords in RIDGE VS. BALWIN (1964) AC 40. Judicial review now lies against an inferior court or tribunal and against any person or body of persons charged with any public duty.”
Counsel said that the above shows that the essential consideration today is that the respondent should be performing a public duty, for order of certiorari to issue.
Relating to the facts of the case on appeal, as per the grounds in paragraph 8.9 of the brief, Counsel said this is an appropriate case for order of certiorari to issue. He also relied on the case of A.G. LAGOS VS. EKO HOTELS LTD. [2006] ALL FWLR [PT. 344] 1398 at 1440 & 1447.
Counsel urged us to resolve the issues in favour of the Appellant and allow the appeal.
No issue was formulated on ground 8 of the appeal by the Appellant and the same is therefore deemed abandoned and struck out.
The Respondent Counsel, AHMED SARDAUNA OBANDE (who settled the brief) submitted, on issue one, that Appellant have admitted that they employed Pharmacists as superintendents of their business and that they have appointed as Directors on the Board of their Companies, Pharmacists, all in compliance with directives of the 1st Respondent as per Affidavits at the page 3 (of the Record) dated 13/03/2001, paragraphs 6, 7 and the further and Better Affidavit at page 59 dated 26/07/2001 paragraph 4 by the Appellant; he submitted that in exercise of the powers conferred on 1st Respondent by virtue of the pharmacist Council of Nigeria Decree No. 91 of 1992, to regulate and control the practice of the profession in all its aspects and ramifications, the 1st Respondent issued directives and guidelines to members of its profession, who must be Pharmacists.
Counsel therefore contended that it is the duty of the pharmacists employed by persons, like Appellant, or those pharmacists on the Board of Directors of the Appellant’s companies to bring to the notice of their principals or employers such directives and or guidelines, from time to time, issued in accordance with the Pharmacists Council of Nigeria Act No. 91 of 1992; he said, that that explains the basis for the holding by the learned trial judge that Appellant ought to have been aware of the existence of Annexure C, since 1995!
He submitted that once a statute stipulates a period within which an action should be commenced, any action taken outside the period of limitation is void, He relied on the case of OFFOBOCHE VS. OGOJA LOCAL G. (1996) 7 NWLR (Pt.456) 98. He added that the onus was on the Appellant to show that its employees and Directors, who are Pharmacists, were not aware of the existence of the directives contained in Annexure C since 1995; that the Appellant failed to discharge that duty, and that was fatal to the Appellant. Because by section 131(1) of the Evidence Act, 2011 (as amended):
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”
He relied on the case of IHEKWOABA VS. COM. OF INTERNAL REVENUE (1958) 3 FSC 67; BELLO VS. ARUWA (1999) 8 NWLR (Pt. 615) 454
Counsel further submitted that Appellant is a member of the pharmacist Society of Nigeria, the Professional Association of pharmacists and Pharmacy business, and that its President sits on the Council of the 1st Respondent (See section 3(1)(c) of the Pharmacist Council of Nigeria Decree No. 91 of 1992 and paragraph (e) of the Affidavit of joinder at page 58 of the Records and the receipts issued by Appellant at pages 6, 9, 12, 14, 18, 19, 22, 24 and 25 of the Records).
Counsel submitted that it is therefore preposterous that the 1st Respondent would issue guidelines, like Annexure C in 1995, borne from the deliberations by its members and the same members claim ignorance of such guideline, until 2002! He maintained that Annexure C can be seen to be a clear document conveying the directives of the 1st Respondent by the 2nd Respondent to “superintendant Pharmacists/Managing Directors”, that the facts that the said regulations must have been conveyed by the Appellant’s employee Pharmacists since 1995 is incontestable by reason of the fact of the deposition by Appellant, as per paragraph 15 of the Affidavit in support of the action page 4 of the Records: “That the Applicants have been practicing their trade in accordance with the rules and regulations to the greater health of Nigerians”.
He said that the Ruling of the trial Court was therefore very apt, when it said:
“…It seems the Appellant had either acquiesced to Annexure C or has resisted it, yet did not take steps until after this long period when they woke up from their slumber to challenge it through judicial review action …” (page 132 of the Records)
On issue 2, Counsel submitted that the learned trial Court was right when it held that reliefs (ii), (iii), (iv) and (v) were consequential to relief (1); that they too were caught up by the general provisions of Order 47 Rule 4(1), in that the delay of 5 years was inordinate, (page 132 of the Records).
He however argued that by so saying, the learned trial Court did not say it was making a consequential order! He relied on Black Law Dictionary 6th Edition, page 306 and on Oxford Advanced Learners’ Dictionary, New 7th Edition page 309, for the definition of the word “consequential” and submitted that a careful analysis of the same shows that the lower Court’s “reasoning which occasioned the refusal of reliefs (ii), (iii), (iv) and (v) as a consequence of the refusal of relief (i), was not adequately appreciated by the Appellant”.
Counsel then went on to say what each of the reliefs entailed and what were needed to prove them and how the Appellant failed to prove their said claims. He relied on these cases NWANKO VS. SHITTA-BEY (1999) 10 NWLR (Pt.621) 98; OCHONMA VS. UNOSI 1 LC 643 at 646; OREDOYIN VS. AROWOLO (1989) 4 NWLR (Pt. 114) 172; SHITTA-BEY VS. FED. PUBLIC SERVICE COMMISSION (1981) 1 SC 40; BROUGHTON VS. COMMISSION OF STAMP DUTIES (1899) AL 251; FAWEHINMI VS. AKILU (1987) 4 NWLR (Pt. 67) 797; PHARMACIST BOARD OF NIGERIA & ORS VS. ADEBESIN & CO. LTD. (1978) NSCC 300.
On issue 3, Counsel submitted that Annexure C was made by the 2nd Respondent (Commissioner of Health, Kaduna State) in accordance with the directive of the 1st Respondent to that effect and addressed to “All Superintendant Pharmacists/Managing Directors” in Kaduna State, in accordance with section 1(i)(d) of the Pharmacist Council of Nigeria Act, No.91 of 1992 which conferred the power on the 1st Respondent. To properly consider the issue, Counsel referred us to
(a) The Records containing the ruling of the lower Court particularly pages 128, 134 – 135
(b) Section 1(i)(d) of the Act No 91 of 1992
(c) Section 20(i) and Regulations 2 and 3 of the poison and Pharmacy Act Cap 535, 1990
(d) Section 10(2) of the Interpretation Act, Cap 192 of 1990 and
(e) The case of Pharmacist Board of Nigeria & 2 Ors Vs. Adebesin & Co. Ltd. (1978) NSCC 300.
Counsel argued that Appellant’s statement and argument, especially on page 128 lines 17 – 20 of the Record, were misleading, confusing and misrepresented the basis of the decision by the lower Court. He argued that Act No. 91 of 1992 does not contain section 241(2) as stated in the Record, and that there was not in existence any law known as Pharmacy Act Cap 152 at the material time relevant to this case, but the Poisons and Pharmacy Act cap 535, 1990.
Counsel also referred to pages 134 and 135 of the Records, where he also picked faults with the Record of Appeal, saying that the same “did not represent the correct and proper references to the laws and Acts being considered and that the Appellant whose duty and responsibility it is to ensure the accuracy of the records and cite accurate and relevant authorities failed, This has caused such confusion at the lower Court that the trial judge was led to mistakenly make erroneous pronouncements with respect to the extant laws that govern the Practice of Pharmacy in Nigeria”. He relied on the case of AJAYI VS. OMOREGBE (1993) 6 NWLR (Pt. 301) 512.
Counsel further said:
‘It is also our contention that the learned trial judge was not completely wrong to hold as he did in lines 15 to 16 at page 134 of the Records that “Effectively therefore, the only law regulating the practice of Pharmacists in Nigeria today is Decree 91 of 1992″ because of the misinformation and lack of accuracy of the learned Counsel to the Appellant at the lower Court”
He submitted that the Appeal Court has powers to amend the record of the lower Court to comply with the facts proved before the Court and the decision given by it! He urged us to amend the records appropriately, citing the case of JESSICA TRADING CO. LTD. VS. BENDEL INSURANCE CO, LTD (1993) 1 NWLR (Pt. 271) 538.
1st Respondent cannot be taken serious to suggest that the Records of appeal is not correct; that the trial judge was misled by it and that we should effect amendment of the same at this stage. See the case of MAJOR N.N. OROK VS. MRS. BECKY R. OROK (2013) LPELR 20377 (CA)
Of course, the law presumes the authenticity and correctness of the Records of Appeal, compiled and transmitted to this court, at the instance of the Appellant. See section 147 of the Evidence Act, 2011, which states:
“Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or defendant, taken in accordance with law, and purporting to be signed by any judge or magistrate or by any such officer as mentioned in this section, the court shall presume that –
(a) the document is genuine;
(b) any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true; and
(c) such evidence, statement or confession was duly taken.”
See also the case of HASKE V. MAGAJI (2008) 1 LPELR 8330 also (2009) ALL FWLR (Pt. 461) 887, where OREDOLA JCA said:
“It is trite that the trial court’s Record of proceedings and the Notice and grounds of appeal after compilation, settlement and certification as true copies, constitute the record of appeal which is binding on the parties and the appellate court such as this court, unless it is successfully challenged in accordance with the laid down guidelines.”
Counsel also relied on section 1(i)(d) of Pharmacy Council Act No. 91 of 1992, to say that it is the 1st Respondent that is empowered to regulate and control the practice of the profession and in all its aspects and ramifications. He relied on section 27 of the Act for the definition of the word “profession” and on Black Law Dictionary for the word ‘Practice’ in relation to profession or professionals.
He submitted that the 1st Respondent had power to regulate and control both the professionals (qualified and licensed Pharmacists) and the business of Pharmacy (traders in Pharmacy like the Appellant) in all aspects and ramification, that is, in a particular way or feature, taking into consideration the complicated and unexpected results (danger) that would follow their action, because it affects the health and well being of fellow human beings. He said that section 20(1) of the Act also supports that contention; that whether a person is a Pharmacists or a Pharmacist in a partnership or employed in a business by any other person, individual or corporate organization the 1st Respondent is empowered to regulate and control his business in all aspects and ramifications by virtue of the Act No. 91, of 1992, as Annexure C was meant to convey.
On Appellant’s contention that by the section 20(i) Regulations 2 and 3 of Poison and Pharmacy, Cap, 5351 the same was intended to deal with how body corporate, a company or firm can set up business for the sale of drugs and poison, 1st Respondent said that is misleading and erroneous. He submitted that the law provides for the registration of corporate bodies, companies and firms, who intend to deal in the business or practice of Pharmacy or sale of drugs and poisons; that Regulations 2 and 3 made under the same Act has provided the Registrar (in this case 1st Respondent) with the powers to dictate or provide the guidelines upon which such persons may be so registered as is evident in Annexure C.
Relying on section 10(2) of the interpretation Act 1990, Counsel submitted that the legislative intendment of section 20(i) of the Poison and Pharmacy Act cap 535, 1990, therefore is to keep the 1st Respondent in control in all aspects and ramifications of the Pharmacy business, when read together with the provisions of section 10(2) of the interpretation Act, which says:
“An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”.
That postulation, Counsel said, was up held by the Supreme Court in the case of PHARMACIST BOARD OF NIGERIA AND 2 ORS VS. ADEBESIN AND CO. LTD, (1978) NSCC 300. Counsel further said that the legislative intendment in the Poison and Pharmacy Act Cap 535 and Pharmacy Council of Nigeria Act No. 91 of 1992 is not different, as the Appellant has urged us to say; that rather, both laws set out to prevent all persons, including the Appellant, from dispensing or selling dangerous drugs or poison to the public in any of their premises, unless a qualified dispenser or chemist, who is a registered Pharmacist is in direct personal charge and control of each of those premises.
Counsel submitted that the trial Court was right to hold that section 1(i)(d) of the Pharmacy Council of Nigeria Ad, No. 91 of 1992 effectively regulates the practice of Pharmacists in Nigeria and empowers the 1st Respondent to regulate and control the practice of the profession in every aspect and ramification. He added that the business of Pharmacy is too important to be left in the hands of non-professionals, without any form of control which is the reason for the making of Annexure C. He relied on the case of PHARMACIST BOARD OF NIGERIA VS. ADEBESIN & CO. LTD. (Supra), where the Supreme Court, per Fatayi Williams JSC said:
“…without doubt, the mischief which the Act (Poison and Pharmacy Act) is meant to prevent and what the provisions of section 37 clearly covers is that incorporated companies such as S.O. ADEBESIN & CO, LTD. (Appellant/Respondent) should not be allowed to dispense or sell dangerous drugs or poisons to the public in any of their premises unless a qualified dispenser or chemist is in direct personal charge and control of each of these premises most of the time. To hold otherwise as the learned trial judge has done will make nonsense of the whole legislation which although inelegantly drafted still makes sense and does not create much difficulty in constructing.”
Counsel urged us to resolve the issues against the Appellant and to dismiss the appeal.
RESOLUTION OF ISSUES
It appears the strong argument of the 1st Respondent, seeking to establish the good and lofty legislative intendment of the law in providing for the regulation and control of the practice of Pharmacy in all aspects and ramifications, which, according to them, necessitated the making of the guidelines, as per Annexure C, as seen in the decision of the Supreme Court in the case of PHARMACIST BOARD OF NIGERIA & 2 ORS VS. ADEBESIN & CO. LTD (1978) NSCC 300, greatly deviated from the actual case of the Appellant in this appeal. There is no disagreement from the Appellant about the need and the requirement of the law for regulation and control of the practice of Pharmacy, especially relating to sale and administration of drugs and poisons, which had always been the goal of sections 1(i)(d) and 20(i) of Pharmacy Council Act No. 91 of 1992, section 20(i) of Poison and Pharmacy Act cap 535 LFN 1990 and Regulations 2 and 3 thereof, and the case of PHARMACIST BOARD OF NIGERIA VS. ADEBESIN & CO. LTD (Supra). Where the Supreme Court, per Fataiyi Williams JSC said:
“…without doubt, the mischief which the Act (Poison and Pharmacy Act) is meant to prevent and what the provisions of section 37 clearly covers is that incorporated companies such as S.O. ADEBESIN & CO. LTD. (Appellant/Respondent) should not be allowed to dispense or sell dangerous drugs or poisons to the public in any of their premises unless a qualified dispenser or chemist is in direct personal charge and control of each of these premises most of the time. To hold otherwise as the learned trial judge has done will make nonsense of the whole legislation which although inelegantly drafted still makes sense and does not create much difficulty in constructing.”
The main dispute appears not to be whether Annexure C, said to have been made by the 1st Respondent, was in pursuit of the above good intention of the above laws, to regulate and control the practice of Pharmacy profession in all its aspects and ramifications, but rather whether the Annexure C was correctly ascribed by the lower Court to the powers of the 1st Respondent under section 1 sub-section (i)(d) of the Pharmacist Council of Nigeria Act No. 91 of 1992, and whether on the materials before the trial Court, and whether on the materials before the trial Court, and the applicable principles of law, the learned trial Court was right to refuse the claim for an order of certiorari?
Of course, in determining whether the trial Court was right to refuse the claim for an order of certiorari the issue of whether the Court, or the evidence before it, and in consideration of the reliefs claimed, correctly applied Order 47 Rule 4(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2000, would have to be resolved. I shall start with the latter.
Did the trial Court rightly apply the Order 47 Rule 4(1) (2) of the Federal High Court (Civil Procedure) Rules, 2000, to hold that the 1st relief sought by the Appellant was caught by the limitation law; that the delay of 5 years was in-ordinate? (Ordinarily, this appears to be a moot, issue since the lower Court had, however, decided the matter, on the merits).
Order 47 Rule 4 of the Federal High Court (Civil Procedure) Rules 2000, provides as follows:’
4(1) “Subject to the provision of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or in a case to which sub-rule (2) of this rule applies, the application for leave under rule 3 of this Order is made after the relevant period has expired, the Court may refuse to grant.
a. Leave for the making of the application; or
b, Any relief sought on of the application, if in the opinion of the court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the, rights of any person or would be detrimental to good administration.
2. In the case of an application for an order of certiorari to remove any judgment, order conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub- rule (1) of this rule is three months after the date of the proceeding.
3. Sub-rule (1) of this rule is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made”.
Learned Senior Counsel for the Appellant had argued that since the Annexure C, which the application was directed at, was to come to effect in March 2001, when it was sought to be implemented by the Respondents, time did not run against the Appellant, who filed the suit on 13/3/2001, less than 14 days thereof; that as per the receipts on pages 7 to 25 of the Records, the Respondents had, consistently, registered the Appellant, until March 2001, when they sought to implement the guidelines in Annexure C. The 1st Respondent’s position was that the Annexure C was made in 1995 and that Appellant had knowledge of same or should have known of its existence, since they had registered Pharmacists in their employ, or as members of Board of Directors, for whom the Annexure C was meant to direct; that Appellant had three months to react to Annexure C, from November 15, 1995!
The Respondents’ did not react to the claim of the Appellant that the directives in Annexure C was to be implemented from March 2001. But a letter from the office of the 2nd Respondent, dated 9/3/2001, and addressed to a member of the Appellant (“the Pharmacist/MD UNIFED PHARMACY, KADUNA”) tends to support appellant’s claim. The letter on page 48 of the Records, states (in part):
“UPDATING REGISTRATION OF PREMISES AND RETENTION OF NAME IN THE REGISTER:
This is to remind you that section (22) of the poison and pharmacy act cap 152 says that before carrying out any pharmaceutical activities in any premises such premises must be registered and issued with a license certificate by the authority concerned. During the recent inspection visit by our inspectors, it was discovered that you have not been getting your license/certificate from the Pharmacists council of Nigeria. To this end therefore you have been given up to 31st March 2001 within which to normalize your registration with the Pharmacists council of Nigeria, failure of which your premise will be closed down”
The full of Annexure C is reproduced on pages 26 to 27 of the Records of Appeal and is addressed to “ALL SUPERINTENDENT PHARMACISTS/MANAGING DIRECTORS” The content is a briefing, issued by DPS and Head of Inspection Unit, M.O.H. KADUNA, as follows:
“1. The Pharmacists Council of Nigeria (PCN) directed that you should as a matter of urgency change the name of your Pharm Company to X, Y etc. PHARMACY, No more X, Y etc. Pharm Chemist or Chemist ltd, The change of the name should be reflected on both your sign-board and application forms for registration, Where the name of your Pharm Company is already X or Y Pharmacy Ltd, you need not to change. Failure to comply with this directive his or her premises will not be registered.
2. Retail premises owned by non- pharmacists will NOT be registered any more once the present supt. Pharmacists reigns.
3. No. Pharmacy should operate retail and wholesale in one premises and at the same time,
4. ALL Wholesale Pharm. Premises should be re-arranged in such a way that the first portion via the entry to the premises should ONLY contain shelves or show case containing samples of what is available with invoicing Staff seated. The bulk stock should not be seen from the show room and should be kept in cartons right inside the rest of the sections of the premises.
5. Anybody applying for the registration of wholesale outlet should make sure that the size is 70sq metres.
6. Applicants applying for the registration of new pharm premises should note that the distance between the proposed site and the existing premises around (be it retail or wholesale) should be 200 metres.
7. While retail pharm practice is only reserve for Pharmacists, Non-Pharmacists wishing to go into wholesale and the existing wholesalers should have qualified and registered Pharmacist on the board of Directors of the Company and should be reflected in the Memorandum and Articles of Association of the Company.
8. Henceforth Supt, Pharmacist and Pharmacist on duty should wear long sleeves white overall with Px sign and name tag.
9. Name of Pharmacist on duty must be displaced in the premises.
10. Area for counseling patients must be provided in a Pharmacy.
11. All schedule drugs in a Pharmacy must be demarcated.
12. Regulatory books must be provided in a pharmacy.
13. A part from the new premises all old Pharm premises will hence forth injected in the beginning of each year so as to confirm that those things asked above have been done or put in a premises before qualifying for Registration/renewal by the PCN. This pre-inspection of both new and old premises will attract fees to be paid by each premises.
14. Supt. Pharmacist should only resign from a premises at the END of the year. No halfway resignation.
15. All Supt, Pharmacists should pay for their personal retention of name (annual license) while Director pay for the certificate of Registration of the premises.
16. All applications for the retention of name (annual license) and renewal of certificate of registration submitted after 31st March, of every year will NOT be processed for the license or certificate and will be marked LATE in red, That is to say late applicants after 31st March will not get their licenses and or certificate.
11. All forms B & J must be billed properly. There should be not double centuries and no question of NOT applicable, if YES and if No, NO.
18. Change of name should be dipped to form J and NOT Form 13.
19. There should be no manufacturer – importer.
20. There will be no more COVER NOTE for premises. All new premises must wait for their certificate form the PCN and hung the original in the premises before displaying drugs on the shelves for sale to the public, And to the applying for all renewal of their premises, original receipts for the payment of state levy, NAGPP dues, PSN dues, ALPs dues, photocopy of bank/ draft to PCN etc, should be properly kept in the premises so as to serve as cover note before the arrival of the certificate,
21. All Bank draft going to the Pharmacists Council of Nigeria MUST be purchased from the following Banks.
a. First Bank of Nig. Plc.
b. Union Bank of Nig. Plc.
c. Afribank of Nig. Plc.
d. United Bank for Africa Plc.
e. Allied Bank of Nig, Plc?
f. Universal Trust Bank of Nig. Plc.
g. Wema Bank of Nig, Plc.
Issued by DPS & head of Insp, Unit M.O. Kaduna 15th November, 1995.”
Of course, if the directives and guidelines in Annexure C, which existed since November 1995, were meant to be implemented and/or enforced with effect from March 31, 2001, there can be no question of Appellant being caught up with time bar to challenge the competence of the document (Annexure C), having filed their action on 13/3/2001, about 2 weeks to the date line, given for the enforcement of the directives. By Order 47 Rule 4(1)(2) of the Federal High Court (Civil Procedure) Rules 2000, the Court is trusted with the discretion to consider whether “there has been undue delay in making an application for judicial review” and “in the case of application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period ….is three months after the date of the proceeding.”
The Receipts issued by the 1st Respondent to the Appellants, as per pages 6 to 25 of the Records, show mostly 1998, 1999, 2000 and 2001 transactions, meaning that 1st Respondents was still recognising and working with Superintendents Pharmacists employed by the Appellant, despite the paragraph 2 of the Annexure C, even as at March 2001! There was therefore no delay (let alone undue delay), when Appellant commenced the suit, since the full implementation of Annexure C was to begin after 31/3/2001, as per Respondents admission.
The law is well developed on how to compute time to determine whether a cause of action is statute barred, and that is by looking at the writ of summons and statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed. And it is only the plaintiff’s claim that is considered relevant for that purpose. See MOYOSORE VS. GOV. KWARA STATE (2012) NWLR (Pt. 1293) 242; MILITARY ADMINISTRATOR EKITI STATE VS. ALADEYELU (2007) 14 NWLR (Pt. 1055) 619; ITF VS. NRC (2007) 3 NWLR (Pt.1020) 28; F.R.I.N. VS. GOLD (2007) 11 NWLR (Pt. 434) 1452.

Even if Respondents were to hold strongly to the 1995 date, their subsequent actions, as per the receipts and their letter of 9/3/2001 on page 37 of the Records had compromised their earlier date. See the case of IGBOKWE VS. NNPC CA/K/331/2011, an unreported decision of this Court delivered on 8/11/2013 PP. 28 – 29, where we said:
“There are several judicial interpretations by the appellate Courts that where a statute of limitation is applicable, in ordinary matters other than election cases, to spell out time frame within which an action can be commenced by an aggrieved party, the said time will only begin to run from the date of the last act of the Respondent, either by conduct or design, which can be interpreted to have re-opened the cause of action. This is so because a fresh entertainment of complaint to suggest admission of the act, neglect or default that constituted the cause of action can give fresh life to the dispute and, automatically, revive the claim with a new life line.”
In the case of EBOIGBE VS. NNPC (SUPRA) it was held (ration 7) that:
“The law that in considering whether an action is statute barred, negotiation between parties will not stop the time from running is subject to qualification. Where there has been an admission of liability during negotiation and all that remains is fulfillment of the agreement, it cannot be just and equitable that the cause of action be barred …”
In the case of OKORO VS. OSIM (2012) 39 WRN 151 at 185, this Court held that:
“The limitation period shall not begin to run where there is a case of fraud. The period of limitation will not begin to run until the plaintiff has discovered the fraud, or could with reasonable diligence, have discovered it. AROWOLO VS IFABIYI (1995) 8 NWLR (Pt. 985) 376” Per NDUKWE-ANYANWU JCA.
Thus, since the Respondents were only poised to give life and effect to their guidelines (Annexure C) which they issued on 15/11/1995, by implementing or enforcing it after 31st March, 2001, Appellants were certainly not barred from bringing the suit when they did on 13/3/2001.
To that extent, the learned trial judge had misapplied the provisions of Order 47 Rules 4(1)(2) of the Federal High Court (Civil Procedure) Rules, 2000. See the case of EDJERODE VS. IKINE (2001) 18 NWLR (Pt.745) 446 at 488, where the Supreme Court said:
“Many statutes and subsidiary legislations usually lie dormant in the statute books. There is no obligation on those likely to be affected by them to rush to litigation. But when any step is taken to implement such a statute or subsidiary legislation e.g. a register declaration of custom regarding a chieftaincy, then a dispute would arise giving rise to a cause of action. It is then the person aggrieved can prosecute an action on it effectively”.
Even before the learned trial Court opted to hear the application on the merits, he had refused the application for certiorari and ultimately dismissed the case, holding that reliefs (ii), (iii), (iv) and (v), that is, prohibition, declaration, mandamus and injunction, respectively, sought by the Appellant had failed, because they were consequential on relief (1) certiorari, which he had held to be statute barred. See page 132 of the Records where Court said:
“It is my respectful view that order 47 Rule 4(2) is applicable and therefore relevant…I must come to the following conclusion”.
1. That relief No. 1, having been caught up by the limitation stipulated by sub-rule 2 of rule 4, cannot be granted, there being no compelling reason to grant it.
2. Reliefs Nos. II, III, IV and V are consequential to relief No. 1. They too are caught up by the general provisions of order 474 (sic) rule 4(1) in that the delay of 5 years is inordinate! It seems, the Applicant had either acquiesced to Annexure ‘C’ or has resisted it, yet did not take legal steps, until after this long period, when they woke up from their slumber to challenge it through judicial review”.
Of course, in my humble view, the compliant in Annexure C was still live and challenging, the implementation date of same, having been fixed to commence after 31/3/2001; the learned trial judge could not have been right, to hold that the reliefs (II), (III), (IV) and (V) were equally statute barred, and that same were consequential on relief (1). Even then, the Provision of Order 47(1) did not spell out specific time frame within which to seek issuance of order of prohibition or to seek declaration or mandamus (unlike the 3 months time frame stipulated in sub-rule 2 for certiorari, The law rather trusted the court with power to exercise its discretion, in the circumstances, as to whether there has been undue delay in making an application, and to refuse same “if in the opinion of the court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration”. See Order 47 Rule 4(1)
There is nothing to show that the learned trial judge weighed the above options before he swept the reliefs (II), (III), (IV) and (V) away, with the Relief (1), which he felt was not activated within 3 months! I do not think the discretion of the lower court was properly exercised, judicially and judiciously. After-all the reliefs were separate legal remedies, which required different rules and principles to establish and prove! I resolve the issue one in favour of the Appellant.
ISSUES 2, 3 AND 4 – These shall be considered together.
On page 135 line 17 of the records of Appeal, the learned trial court was of the view that Annexure C was made pursuant to section 1(d) of Degree (now Act) 91 of 1992, that is, PHARMACISTS COUNCIL OF NIGERIA ACT.
Appellant had, strenuously, disputed that, saying that Act (No. 91 of 1992) deals, generally, with the practice of the profession of Pharmacy and provides criteria for qualification and code of conduct for the Pharmacists. Counsel had relied on section 20 of that Act on the definition of persons who may be deemed to practice Pharmacy, and had linked that with section 20 of Poison and Pharmacy Act cap 535, LFN 1990, saying that the law also recognises body corporate, companies and firms (like Appellant), not only human persons, as capable of being involved in the business of sale of drugs and poisons; that by section 52 of the Poison and Pharmacy Act (Cap 535), regulations which relates to Applicant can only be issued by the President or the Minister (of Health).
Also, that Section 20 of Act No. 91 of 1992 says:
“Subject to subsection 2 of this section a person shall be deemed to practice as Pharmacist if, in consideration of remuneration received or to be received and whether by himself or in partnership with any other person
(a) he engages himself in the practice of Pharmacy or holds himself out to the public as a Pharmacist; or
(b) he renders professional service or assistance in or about matters of principle or detail relating to Pharmacy, or
(c) he renders any other service which may by regulations made by the Council with the approval of the Minister, be designed as service constituting practice as a Pharmacist.
Whereas, section 20 of Act No. 91 of 1992 makes room for persons, other than human persons (Qualified as Pharmacists), to engage in the practice of Pharmacy, section 20 of Poison and Pharmacy Act cap 535, 1990, specifically provides for the regulations of the practice, taking into account the body corporate, companies and firms engaged in the business. That, I believe, was why section 20 of the Act, cap 535, stated:
“Nothing in the Act shall operate to prevent a body corporate, a company or firm as defined in the companies and Allied Matters Act from carrying on a business which comprises the dispensing or selling of any drug or poison”, provided the same complied with the conditions stipulated!
It appears all that section 20(1) of cap 535 requires for such a corporate body or company to engage in the business is engagement of a Superintendent Pharmacist in the retail business, to Superintend the Pharmacy, as it says that:
“(i) the Company or firm carrying on such business can only do so under the direct control and Management of a Superintendent who is selling dispenser or a chemist
(ii) every sale must be effected by the selling dispenser or chemist
(iii) mixture, reparation or compounding of drugs and poison should be by the dispenser or chemist”
In respect of whole sale trade, the Company doing so is by law, expected to have a qualified and registered Pharmacist in the company or on the board of directors of the Company.
The power to make regulation under the Poison and Pharmacy Act is given to the President and Minister (of Health). See section 52 of the Act – Cap 535, And, by section 1(d) and 20(1)(d) of the Pharmacists Council Act, it is given to 1st Respondent with the approval of the Minister.
The Annexure C (earlier reproduced) appears to be in conflict with the above provisions of the law, principally. Even sections 1(d) and 20(1)(d) of the Act No. 91 of 1992, which the 1st Respondent greatly relied on, as authority to make Annexure C requires such regulations to be “made by the Council, with the approval of the Minister …”
The Respondent Counsel in his argument, paragraph 5.1 of 1st Respondent’s Brief said:
“Annexure C, the crux of the Appellant’s grievance was made by the 2nd Respondent in accordance with the directive of the 1st Respondent to that effect and addressed to “All Superintendent Pharmacist/ Managing Directors” in Kaduna State”
That means the 1st Respondent never issued the Annexure C, contrary to its claims in this appeal.
It is very doubtful whether the 2nd Respondent (the Commissioner for Health of Kaduna State) can qualify, under sections 20 and 52 of the Poison and Pharmacy Act cap 535; and section 1(d) and 20(1) (d) of Act No. 91 of 1992 (all Federal enactments) to make Annexure C and then send it to all the Pharmacists/Managing Directors in Kaduna. Even when the 1st Respondent (a Federal Agency) appears to have accepted to play subservience to the Commissioner for Health, Kaduna State, with regard to Annexure C, and to adopt the same, it is equally difficult for a Court of law to ignore the obvious contractions and untardiness in the said Annexure C, vis-a-vis, the parent Legislations (cap 535, 1990 and Act No. 91 of 1992) from which the alleged guidelines (Annexure C) derived or should take its bearing.
For instance; Paragraph 2 of Annexure C says:
“Retail premises owned by non – Pharmacists will not be registered any more once the present Superintendent Pharmacists resigns (sic)”
Of course, that is in direct conflict with section 20 of the Poison and Pharmacy Act, Cap 535, which recognizes persons or corporations, companies or firms carrying on a business, which comprises the dispensing or selling of any drug or Poison, provided it does so under the direct control and management of Superintendent (Pharmacist), as selling dispenser or chemist, or a Pharmacist is a member of the board of directors of the company, in the case of whole sale.
Also paragraph 7 of the Annexure C stipulates that:
“While retail Pharmacy Practice is only reserved for Pharmacists, non – Pharmacists wishing to go into wholesale and the existing wholesalers should have qualified and registered Pharmacists on the Board of Directors of the Company and should be reflected in the Memorandum and Articles of Association of the Company.”
The above, too, does violence to section 20 of Cap 535, which merely appears to require a Registered Pharmacists to be on the Board of directors of such company or firm doing business of sale or wholesale of drugs and poisons.
Appellant, also referred us to paragraph 15 of Annexure C, which tends to require All Superintendent Pharmacists to pay (to the Council) for their personal retention of name (annual license) while the director (of the business premise) must also pay annually to the Council for the certificate of Registration of the premises! That too is an affront to section 3 of the Poison and Pharmacy Act, Cap 535.
Certainly, Annexure C, considering the above defects, and by the very shabby and casual way it was issued by the 2nd Respondent, cannot pass for a serious legal instrument, meant to regulate the Practice of Pharmacy, in all its aspects and ramifications, as envisaged by section 1(d) of Act No.91 of 1992- Pharmacists Council of Nigeria Act.
Without prejudice to the powers of the 1st Respondent to issue competent guidelines to regulate the practice of Pharmacy in all its aspects and ramifications, Annexure C cannot satisfy that legal requirement, appearing to be a fraud, smuggled from the back door, to frustrate the Appellant organization and, in fact, frustrate sound pharmacy practices, as anticipated by both the Poison and Pharmacy Act, cap 535 and the Pharmacists Council of Nigeria Act No.91 of 1992.
1st Respondent had claimed that Annexure C was its regulation, made pursuant to section 1(d) and 20(1) (d) of the Pharmacists Council of Nigeria Act No.91 of 1992. Of course, to the extent that Annexure C purported to be a legal instrument made to regulate the practice of Pharmacy in Nigeria, it was a quasi-judicial instrument. Surprisingly, the learned trial Judge said that certiorari was not the proper application to deal with the document, because the same was not a Judicial or quasi-judicial act.
I think rules or regulations or guidelines, purported to be made in pursuance of a statute, to regulate conduct, have every attribute of a quasi-judicial instrument to qualify for a certiorari application. Even, then the law seems to have moved beyond the scope of the case of R.V. HUNT (1820) 3 BS LTD 444; and NWANKWO VS. SHITTA-BEY (1999) 10 NWLR (Pt. 621) 98 which the learned trial judge relied on.

The holding of UWAIFO JCA (as he then was) in the case of ONUZULIKE VS. CDS ANAMBRA STATE (1992) 3 NWLR (Pt. 232) 791 is instructive here:
“Certiorari or prohibition will lie against anybody or person having a legal authority to determine questions affecting the right of subjects, whenever the duty implies at least that that body or person should act fairly or in accordance with a statutory provision.”
See also the case of HART VS. MILITARY GOVERNOR RMRS STATE (1976) 11 SC, where the Supreme Court said:
“…although the Military Governor was not sitting as a Court, stricto sensu, it is our view, nevertheless, that in ascertaining the facts and directing finally that a much lighter punishment should be meted out to the appellant he was under a duty to act judicially or fairly. Since in the discharge of that duty he has assumed the power of jurisdiction which he did not possess under the Constitution of the State, certiorari would lie to quash his order that the appellant be retired from the public service of the Rivers State”.
See also the 1988 edition of the White Book Vol. 1 page 795 under Order 53/1 – 14/11 (which Appellant’s Council relied on) which states:
“At various stages (particularly between the 1920s and the 1965) it was thought that what were then the prerogative orders of certiorari, prohibition and mandamus only lay against persons or bodies with judicial or quasi-judicial functions, and did not apply to an authority exercising administrative powers. The distinction between judicial and administrative activities was swept away by the decision of the House of Lords in RIDGE VS. BALWIN (1964) AC 40. Judicial review now lies against an inferior court or tribunal and against any person or body of persons charged with any public duty.”
I think there is no contention that Poison and Pharmacy Act, cap 535 is still extant, as the Learned Counsel for the 1st Respondent had said it is, and Counsel on both sides had quoted copiously from the law and relied on it.
There is information, however, to show that Pharmacy Act (1958) was so renamed from the Poison and Pharmacy Law, and that the Pharmacy Act, cap 152, was repealed partly by the 1964 Act, cap 26, and the same was retained in 1990 Laws as cap 357, (see pages XXXX and LIV of the INDEX LFN 1990). But all that are speculations by the legal drafters who arranged the compilation of our laws. There is no disclosed legislative process to buttress the alleged renamed the Poison and Pharmacy Act as Pharmacy Act nor the part of the Poison and Pharmacy Act that was repealed. What is obvious is that the Pharmacy Act of 1964 latter became cap 357 of the Laws of the Federation, 1990 and the same was later replaced by the Pharmacists Council of Nigeria Decree (now Act) No. 91 of 1990, as section 26 thereof expressly repealed the Pharmacy Act cap 357 of the Laws of the Federation of Nigeria, 1990.
It does not even appear reasonable to think that the Poison and Pharmacy Act, cap 535 has ceased to be or was replaced by the Pharmacists Council of Nigeria Act, as the two, though related, appear to have different legislative functions and goals.
There is no useful clue therefore to indicate that any of the provisions of the 1958 Act, relied upon by the parties have been expressly repealed, especially as section 15(1)(2) of the pharmacy Act cap 357 LFN 1990, which provided power to make regulations, rules and orders for practice of Pharmacy, still required the Minister to lay a copy of all such regulations before the National Assembly, as soon as may be after the regulations are made.
It is true that the Pharmacy Act, cap 357 Laws of the Federation 1990 appears to be replaced by the Act No. 91 of 1992 as it was repealed by the Pharmacist Council of Nigeria Act No. 91 of 1992 (section 26 thereof). But section 20(1)(d) of the Act No. 91 of 1992 still requires any regulation for the practice of Pharmacy, made by the 1st Respondent, pursuant to section 1(d) of the Act, to be made “with the approval of the Minister”.
I have already held that Annexure C did not enjoy such legal process and so cannot be a Regulation or Guide-lines duly made by the 1st Respondent for the purpose of that law.
To that extent, I think the learned trial Court erred when it held:
“…and it is without argument that the rules conveyed in Annexure ‘C’ is in pursuance of the powers of the 1st Respondent to make rules under section 1(d) of the Decree 91 of 1992. Having regard to the above, it is my respectful view therefore that certiorari in this circumstances cannot issue. It is an inappropriate remedy …” See page 135 of the Records.
I therefore resolve the issues 2, 3 and 4 too, in favour of the Appellant and hold that the appeal is meritorious and should be allowed, It is accordingly allowed and I set aside the judgment of the Lower Court in the suit No. FHC/KD/CP/8/2001.
By the authority of section 15 of the Court of Appeal Act 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules 2011, I hereby make the following orders which, I think, the learned trial Court ought to have made:
(i) An order of certiorari to remove into the Honourable Court for the purpose of being quashed the decisions of the respondents as contained in the letter dated 15/11/1995, otherwise called Annexure C in this case.
(ii) An order prohibiting the respondents from implementing or enforcing the said decision contained in the said letter-Annexure C.
(iii) An order of mandamus, compelling the Respondents to register or renew the registration of the Pharmaceutical premises of the Applicant who fulfill the requirements that had always existed, requiring them to employ or retain Superintendent Pharmacists to run the business as per the law, pending any further regulations made by the 1st Respondent as per section 1(d) and 20(1)(d) of the Pharmacists Council of Nigeria Acts, No. 91 of 1992.
Parties are to bear their respective costs.

DALHATU ADAMU, J.C.A.: I have read the draft of the leading judgment written by Mbaba JCA. I am in full agreement with his reasons and the conclusion he reached that the appeal is meritorious and should be allowed. I hereby allow the appeal and abide by the consequential orders made in the leading judgment including an order as to costs. The parties should bear their respective costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother Ita Mbaba, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached on the issues for determination but slightly differ on the final orders to be made in favour of the Appellants.
There were four issues for determination raised by the parties in this appeal. The first issue for determination was on the question of limitation of action – whether the claim of the Appellants for an order of certiorari was time barred in view of the provisions of Order 47 Rules 4(1) and (2) of the Federal High Court (Civil Procedure) Rules 2000, the applicable rules at the times material to this matter, which prescribed that such a claim should be filed within three months. Limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions and this is based on public policy that there should be an end to litigation and that stale demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence formerly available to him necessary to rebut the claim – Shell Petroleum Development Corporation Vs Farah (1995) 3 NWLR (Pt 382) 148, Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524.

Where a statute of limitation prescribes a 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 claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed – Odubeko Vs Fowler (1993) 7 NWLR (Pt 308) 637, Shell Petroleum Development Corporation vs Farah supra, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114, Muhammed Vs Military Administrator, Plateau State supra, Sulgrave Holdings Inc v. Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309.

The period of time prescribed by a statute of limitation begins to run the moment a cause of action accrues to the person entitled to it. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action. A cause of action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a, substantive right to make a claim for the relief or remedy being sought. It is every fact which is material to be proved to entitle the claimant to succeed or all those things necessary to give a right to relief in law or equity – Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt 903) 449, Williams vs Williams (2008) 10 NWLR (Pt 1095) 364, Duzu Vs Yunusa (2010) 10 NWLR (Pt 1201) 80 and Nigerian Ports Authority Vs Beecham Pharmaceutical PTE Ltd (2012) 18 NWLR (Pt 1333) 454. It consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage – Savage Vs Uwechia (1975) 2 SC 213, Adeosun Vs Jibesin (2001) 11 NWLR (Pt 734) 290, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (Pt 913) 602, Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt 1064) 606. A cause of action accrues when the cause of action becomes complete so that an aggrieved party can begin and maintain an action – Mobil Oil (Nig) Plc Vs Malumfashi (1995) 7 NWLR (Pt 406) 246, Adekoya Vs Federal Housing Authority (2008) 11 NWLR (Pt 1099) 539. In Adimora Vs Ajufo (1988) 3 NWLR (Pt 80) 1 at 17, Oputa, JSC, put the issue thus:
“In dealing with limitation of actions, one of the most fundamental questions to answer is: when did the cause of action accrue? This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first – what is meant by cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment. . . . . When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant, a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus, accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action.”
It is an acceptable principle that in determining the accrual of a cause of action, actual or constructive knowledge by the claimant of the wrongful act of the defendant which gives the cause of complaint is essential. This point was made by the English Court in Turburville & Anor Vs West Ham Corporation (1950) 2 KB 208. This was a case of some assistant school teachers and the adjustment of their salaries during the Second World War. The teachers put salary claims which their corporation-employer rejected. Time, it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Hence, the Court stated, inter alia, that the plaintiff’s cause of action did not accrue until they received notice of rejection of their claims on 25th February 1946, and therefore the limit had not expired when the writs were issued on 23rd January, 1947. This case was quoted with approval by the Supreme Court in Ikine Vs Edrerode (2001) 18 NWLR (Pt 745) 446 and Supreme Court made the point in that case that an unfavorable legislation, be a law or regulation, which remains redundant in the statute books does not become actionable from the date it is passed, but from the date it becomes operational as that is the date its effect becomes known. Uwaifo, JSC stated at page 488
“The first issue is canvassed on the basis that the BSLN 88 made on the 25th September, 1979 created a cause of action which accrued from that date. That being so, that the action brought by the respondent on 25 January, 1988 was statute barred, not having been brought within six years from 25 September, 1979. This argument implies that a statute, for example, which creates a disability whether specifically or generally must be challenged in good time by whoever may be affected by it within any relevant limitation period. This cannot be right. Many statutes and subsidiary legislation usually lie dormant in the statute book. There is no obligation on those likely to be affected by them to rush to litigation. But when any step is taken to implement such a statute or subsidiary legislation e.g. a registered declaration of custom regarding chieftaincy, then a dispute would arise giving rise to a cause of action. It is then the person aggrieved can prosecute an action on it effectively…”
The issue of awareness or knowledge of the wrongful act of the defendant by a claimant was also touched upon by the Supreme Court in Nigerian Ports Authority Plc Vs Lotus Plastics Ltd (2005) 19 NWLR (Pt 959) 158. The only recognized exception on the issue of knowledge is in respect of an action for recovery of land where the Supreme Court, interpreting the specific provisions of the Limitation Law on recovery of land, has held that knowledge by the true owner of the land of the adverse possession of land is not essential for the commencement of the running of the limitation period – Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Akibu Vs Azeez (2003) 5 NWLR (Pt 814) 643 and Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76.
In the instant case, the regulations being challenged by the Appellants were made in 1995. It was the case of the Appellants that they did not become aware of the existence of the regulations until March 2001, when the Respondents sought to commence implementing them. There was evidence before the lower Court that the Respondents did not enforce the said regulations in years 1996 to 2000 in registering the pharmaceutical premises of the Appellants, but applied that they applied the regulations existing prior to 1995. There was no evidence that the Respondents took any positive step to bring the existence of the said regulations to the notice of the Appellants prior to March 2001; the case of the Respondents was that the Appellants ought to have been aware of its existence. Applying the above stated principles to these facts, it is obvious that the cause of action of the Appellants accrued in March 2001 when the Respondent sought to implement the regulations. The action was commenced on the 13th of March, 2001. It was commenced within the limitation period. It was not statute barred.
There was also the issue of whether the learned trial Judge was correct when it held that the prayers of Appellants for orders of prohibition and mandamus as well for a declaration and injunction must also fail because they were consequential of the order of certiorari and were also caught by the provisions of Order 47 Rule 4 of the Federal High Court Rules in that the delay of five years in commencing the action was inordinate. The resolution of the earlier issue for determination effectively resolves this issue and the answer to the question posed under the issue must be in the negative. The cause of action of the Appellants in this matter arose in March 2001 and this action was filed on the 13th of March 2001. There was no inordinate delay in commencing the action. The prayers for orders of prohibition and mandamus as well for a declaration and injunction were thus in order.
Another issue that enjoyed heated debates between the Counsel to the parties in this appeal was whether or not the first Respondent had the powers to make regulations governing the operations of a place of business of a company engaged in the sale of drugs. The Appellants argued that the first Respondent possessed no such powers as such places of business were governed by the provisions Poison and Pharmacy Act Cap 535, Laws of the Federation 1990 and under which it is the President and the Minister for Health that had powers to make regulations. The first Respondent contended that because such places of business must be managed by registered Pharmacists, they came under the regulatory powers of the first Respondent as provided for in the Pharmacists Council of Nigeria Act of 1992 and the section 20 of which authorizes the first Respondent to issue regulations.
Now, the regulations that precipitated this action were attached as Annexure C to the processes filed in the lower Court. The annexure was headed “Registration of Pharmacists and Pharmaceutical Premises for 1996 and Years Ahead”. The annexure stated at its end that it was issued by the Inspectorate Unit of the Ministry of Health, Kaduna State on the 156 of November, 1995. The Inspectorate Unit of the Ministry of Health, Kaduna State is not the same as the Pharmacists Council of Nigeria and it is not empowered either under the Poison and Pharmacy Act Cap 535, Laws of the Federation 1990 or under the Pharmacists Council of Nigeria Act of 1992 to issue regulations for the registration of Pharmacists and Pharmaceutical Premises. There was nothing on the annexure to suggest that it was issued by the Inspectorate Unit of the Ministry of Health, Kaduna State under any delegated power from the Pharmacists Council of Nigeria. And even if such delegation was shown, the power of the Pharmacists Council of Nigeria to issue regulations under section 20 of Pharmacists Council of Nigeria Act of 1992 was subject to the approval of the Minister for Health. There was nothing on the annexure showing that such approval was obtained. The regulations, Annexure C, were not issued by the appropriate authority and in compliance with the provisions of the law. They are thus irregular and unlawful.
The Appellants sought for a judicial review of the actions of the Respondents in issuing the regulations, Annexure C, and in seeking to implement the regulations. Judicial review, or judicial control, is founded on a fundamental principle inherent throughout the legal system that powers can be validly exercised only within their true limits. It is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its own decision for that of some other body, as happens when on appeal, the court on review is concerned only with the question whether the act or order under challenge should be allowed to stand or not. The court is concerned with the legality and not the merits of the decision or acts of the public authority – Amadi Vs Acho (2005) 12 NWLR (Pt 939) 386 and Bamaiyi Vs Bamaiyi (2005) 15 NWLR (Pt 948) 334. In view of the above findings of this Court, the Appellants are entitled to judicial review of the actions of the Respondents.
As stated earlier, Annexure C was a circular dated 15th of November, 1995. The Appellants, as Applicants before the lower Court, prayed for following orders:
i. An order of certiorari to remove into this Honorable Court for the purpose of being quashed the decisions of the respondents as contained in the letter dated 15th of November, 1995.
ii. An order of prohibition prohibiting the respondents from implementing or enforcing the said decision of the respondents contained in the letter dated 15th of November 1995.
iii. Declaration that the new conditions laid down or stipulated by the respondents in their letter dated 15th of November, 1995 for the registration or renewal of the registration of pharmaceutical premises are unconstitutional, illegal, unreasonable, made without or in excess of jurisdiction, irregular, unlawful and null and void.
iv. An order of mandamus compelling the respondent to register or renew the registration of the pharmaceutical premises of the applicants who fulfill the requirements that had existed before the new requirements objected to in this action were introduced.
v. An order of injunction restraining the respondents by themselves, their agents, servants, privies of otherwise howsoever from implementing or enforcing the said decision in processing registration or renewal of registration of the pharmaceutical premises of the applicants.
This Court is empowered under the provisions of section 15 of the Court of Appeal Act to make the appropriate orders that the lower Court should have made in the circumstances of this case. The question now is – which of the above orders are the Appellants entitled to?
On the order certiorari, the lower Court held that since the issuance of the regulations was an administrative function and not a judicial one or quasi-judicial one and an order of certiorari was not available to nullify such exercise of power. The Appellants contended in this appeal against this position of the lower Court and submitted that an order of certiorari or prohibition will lie against anybody or person having a legal authority to determine questions affecting the rights of subjects whenever the duty implies at least that that body or person should act fairly or in accordance with a statutory provision; their Counsel referred to the cases of Onuzulike Vs C.D.S Anambra State (1992) 3 NWLR (Pt 232) 791. Attorney General of Lagos State Vs Eko Hotels Ltd (2006) All FWLR (Pt 342) 1398 at 1440 and 1474 as well as the 1988 Edition of Volume 1 of the White Book at page 795. Counsel to the first Respondent did not respond to this submission.
With respect, the position of the law stated by the Counsel to the Appellants is a bit self serving and not totally correct. The correct position of the law is that certiorari and prohibition will lie against the actions of a body or person, whether in the exercise of an administrative or judicial or quasi judicial function, having a legal authority to determine questions affecting the rights of subjects whenever the duty implies that that body or person should act fairly, and the body or person fails to so act. It was the dichotomy that used to exist between the applicability of the prerogative orders of certiorari and prohibition to actions of a body or person exercising an administrative function who breaches the duty to act fairly and to the actions of a body or person performing a judicial or quasi judicial function in breach of the duty to act fairly that was abolished by the decision of the English House of Lords in the case of Ridge Vs Baldwin (1964) AC 40. It is this dichotomy that has become anachronistic and has been consigned to the rubbish heap of legal history – Attorney General of Lagos State Vs Eko Hotels Ltd (2006) 18 NWLR Pt 1011) 378. These decisions did not make the prerogative writs of certiorari and prohibition applicable to acts which are purely administrative in nature.
The law is that the prerogative writs of certiorari and prohibition apply only against the acts and decisions of bodies or persons exercising administrative or judicial, and quasi judicial authority affecting the rights of people, which makes it mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that capacity. They do not lie against executive or legislative acts, or mere administrative acts, because such acts are not performed or expected to be performed in accordance with the rules of fair hearing – Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR (Pt 959) 211, Manuwa Vs National Judicial Council (2013) 2 NWLR (Pt 1337) 1, State Vs Lawal (2013) 7 NWLR (Pt 1354) 565, Judicial Service Commission of Cross River State Vs Young (2013) 11 NWLR (Pt 1364) 1. The point was succinctly made by the Uwaifo, JSC in Nwaoboshi Vs Military Administrator, Delta State (2003) 11 NWLR (Pt 831) 305 at pages 320 to 321, where the learned Justice quoted with approval the English case of R Vs Electricity Commissioners (1924) 1 KB 171 thus:
“In R v. Electricity Commissioners . . . , Atkin LJ giving an overview of the functions of the writs of certiorari and prohibitions said:
‘The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the divisional court. Both writs are of great antiquity, forming part of the process by which the King’s Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction, certiorari requires the record or order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a court of justice.
But the operation of the writs have extended to control the proceedings of bodies which do not claim to be, and would be recognized as courts of justice. Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.” (underlining mine for emphasis).
A judicial or quasi judicial action is a term applied to the action of discretion of public administrative officers or bodies who are required to investigate facts, ascertain the evidence of facts, hold hearings, weigh evidence, draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature – Medical & Health Workers Union of Nigeria Vs The Honourable Minister for Labour and Productivity (2005) 17 NWLR (Pt 953) 120.Looking at the actions of the Respondents in the instant case in issuing and seeking to implement the regulations, Annexure C, it cannot be said that they acted in any quasi judicial or judicial manner. Their acts were purely administrative acts. The orders of certiorari and prohibitions are thus not available to the Appellants against those acts.
On the request for the order of mandamus, it was the case of the Appellants that its members approached the Respondents for the annual registration of their respective places of carrying on business of sale of drugs for the year 2001 and that they paid necessary fees. It was their case that the Respondents declined the requests for registration unless and until its members complied with the new regulations in Annexure C. Mandamus is a writ issuing from a court of competent jurisdiction, commanding an inferior tribunal, board, corporation or a, person to perform a purely public ministerial duty imposed by law. It is an extraordinary writ which lies to compel performance of a public duty where there is a clear legal right in the applicant and a corresponding duty on the respondent. The principle of demand and refusal is usually a pre-requisite before an order is made in favour of an applicant. Such an application usually engenders due exercise of discretion by the court – Ayida Vs Town Planning Authority (2013) 10 NWLR (Pt 1362) 226 and Atungwu Vs Ochekwu (2013) 14 NWLR (Pt 1375) 605.Applying these principles to the facts of this case, it clear that the Appellants are entitled to the order of mandamus as claimed.
The Appellants also sought for a declaratory order. A request for a declaratory order in an application for judicial review is an appeal to the court to declare what it regards as the true legal position. It is the effective means of challenging an administrative act of a public authority – Onyekwuluje Vs Benue State Government (2005) 8 NWLR (Pt 928) 614. With the earlier findings made by this Court, the Appellants are entitled to the declaratory order sought.
The Appellants prayed for an order of injunction to restrain the Respondents from implementing the regulations, Annexure C. Injunction is an equitable relief issued or granted by a court at the suit of a party complainant, directed to a parry defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants and agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claimant, and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing – Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356, Atungwu Vs Ochekwu supra. An injunction is an ancillary relief in the sense that it complements a cause of action. It is rarely granted on its own as a sole relief. Rather, it is granted to enforce a right which the court granting the injunction has first decreed or recognized in its judgment it is to ensure that such a right is not violated. In effect, it is a consequential relief used only as an accompaniment to a pre-ascertained principal relief – Nwankwo Vs Ononoeze-Madu (2005) 4 NWLR (Pt 916) 470, Yusuff Vs International Institute of Topical Agriculture (2009) 5 NWLR (Pt 1133) 18. With my findings in this appeal that the Appellants are entitled to an order of mandamus and to a declaration, an order of injunction is appropriate in the circumstances.
In conclusion, I agree that there is merit in this appeal and I allow the appeal. The judgment of the Federal High Court sitting in Kaduna in Suit No FHC/KD/CP/8/01 delivered by Honorable Justice A. M. Liman on the 25th of July, 2003 is set aside. I order as follows:
i. It is hereby declared that the new regulations laid down or stipulated by the Respondents in their circular dated 15th of November, 1995, Annexure C, for the registration or renewal of the registration of pharmaceutical premises were made without lawful authority and are irregular, unlawful and null and void.
ii. An order of mandamus is hereby made directing the Respondents to register and/or renew the registration of the pharmaceutical premises of the Applicants who fulfill the requirements that had existed before the new regulations in Annexure C were introduced.
iii. An order of injunction is hereby made restraining the Respondents by themselves, their agents, servants, privies or otherwise howsoever from implementing or enforcing the said new regulations in Annexure C in processing registration and/or renewal of registration of the pharmaceutical premises of the Applicants.
iv. The prayers for orders of certiorari and prohibition are inappropriate in the circumstances and are hereby struck.
I abide the order on costs in the lead judgment.