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THE INCORPORATED TRUSTEES OF THE ASSOCIATION -vs- IRRUA SPECIALIST TEACHING HOSPITAL

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 28TH JANUARY, 2019                          

 SUIT NO: NICN/ABJ/182/2016

BETWEEN

  1. THE INCORPORATED TRUSTEES OF THE

ASSOCIATION OF MEDICAL LABORATORY

SCIENTISTS OF NIGERIA.

  1. THE INCORPORATED TRUSTEES OF THE

ASSOCIATION OF MEDICAL LABORATORY

SCIENTIST OF NIGERIA, (IRRUA SPECIALIST

TEACHING HOSPITAL CHAPTER, IRRUA, EDO STATE.

  1. OBARHUA EJIROGHENE (CHAIRMAN, ASSOCIATION

OF MEDICAL LABORATORY SCIENTIST OF

NIGERIA, IRRUA SPECIALIST TEACHING

HOSPITAL CHAPTER, IRRUA, EDO STATE)

  1. ALABI PRECIOUS (SECRETARY, ASSOCIATION

OF MEDICAL LABORATORY SCIENTIST OF

NIGERIA, IRRUA SPECIALIST TEACHING

HOSPITAL CHAPTER, IRRUA, EDO STATE)

 

CLAIMANTS

AND

  1. IRRUA SPECIALIST TEACHING HOSPITAL,

IRRUA, EDO STATE.

  1. BOARD OF MANAGEMENT, IRRUA SPECIALIST

TEACHING HOSPITAL, IRRUA, EDO STATE.

  1. DR. SYLVANUS A. OKOGBENIN (CHIEF MEDICAL

DIRECTOR, IRRUA SPECIALIST TEACHING HOSPITAL,

IRRUA, EDO STATE)

  1. MR TONY EDEKO (DIRECTOR OF

ADMINISTRATION, IRRUA SPECIALIST TEACHING

HOSPITAL IRRUA, EDO STATE)

  1. DR. EHIOZE MATTHEW (H.O.D. HAEMATHOLOGY)
  2. DR. KINGSLEY OSUJI (H.O.D. CHEMICAL PATHOLOGY)
  3. DR. G. M. ADEWUYI (H.O.D. MICRO BIOLOGY DEPT)

 

DEFENDANTS

 

REPRESENTATION:

  1. N. ESEZOBOR FOR THE CLAIMANTS.

NO APPEARANCE FOR THE DEFENDANTS.

 

JUDGMENT

The Claimants commenced this suit by Originating Summons filed on the 19th May, 2016 and amended 6th November, 2018, seeking the determination of the following questions:

  1. Whether the members of 1st and 2nd claimants (including the 3rd and 4th claimants) who are in the employment of the 1st defendant are affected, included and or entitled to the benefit of the Judgment of this Honourable Court delivered in favour of the 1st Claimant on the 23rd day of October, 2013 in Suit No. NICN/ABJ/128/2012.
  2. Whether the member of the 1st and 2nd Claimants (including the 3rd and 4th Claimants) who are in the employment of the 1st Defendant are affected, included and or entitled to the benefit of the Judgment of this Honourable Court delivered in favour of the 1st Claimant on the 27th day of January, 2016 in Suit No. NICN/ABJ/284/2014.
  3. Whether the Judgment of this Honourable Court delivered on the 23rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 is binding on the 1st and 2nd Defendants herein who are Federal Government Parastatals and Agencies/Agents respectively and on the 3rd and 4th Defendants herein who are public servants in the employment of the 1st Defendant, a Federal Government Parastatal.
  4. Whether the Judgment of this Honourable Court delivered on the 27th day of January, 2016 in Suit No. NICN/ABJ/284/2014 is binding on the 1st and 2nd Defendants who are Federal Government Parastatal and Agent respectively and on the 3rd and 4th Defendants who are public servants in the employment of the 1st defendant, a Federal Government Parastatal.
  5. Whether the judgment of this Honourable Court delivered on the 27th day of January, 2016 in Suit No. NICN/ABJ/284/2014 is binding on the 5th, 6th and 7th Defendants who are Pathologists and all other Pathologists who are consultants in the 1st defendant’s service.

Based on the above questions, the claimants sought the following reliefs against the Defendants as follows:

  1. A Declaration that the 2nd, 3rd and 4th  Claimants and indeed members of the 1st Claimant in the employment of the 1st and 2nd Defendants are affected, included and/or entitled to the benefits of the Judgments of this Honourable court delivered on the 23rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27th day of January, 2016 in Suit No. NICN/ABJ/284/2014 respectively.
  2. A Declaration that the Defendants herein are bound by the judgment of this Honourable Court delivered on the 23rd day of October, 2013 in Suit No. NICN/ABJ/128/2012 and on the 27th day of January, 2016 in suit No. NICN/ABJ/285/2014 respectively.
  3. An Order directing the 1st – 4th Defendants to immediately recognize the existing Medical Laboratory Service Department and Federal Government Approved Scheme of Service and put same into full operation for all members of the 1st and 2nd Claimants including the 3rd and 4th Claimants in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of Service and for all administrative purposes at the Irrua Specialist Teaching Hospital, Irrua, Esan Central Local Government Area of Edo State (1st defendant).
  4. An Order directing the 1st – 4th Defendants to recognize and designate the most Senior Medical Laboratory Scientist in the 1st Defendant’s employment as the Head and Director of the Directorate/Department of Medical Laboratory Services in line and in accordance with the judgments of this Honourable court in Suit No. NICN/ABJ/128/2012 and Suit No. NICN/ABJ/294/2014 delivered on the 23rd day of October, 2013 and on the 27th day of January, 2016 respectively extant Laws/Acts, Rules, Circulars and approved Scheme of service.
  5. An Order directing the 1st – 4th Defendants jointly and severally to prepare and/or prescribe schedule of duties, responsibilities and compositions for the 1st and 2nd Claimants’ members (including the 3rd and 4th Claimants) in this suit in accordance with extant Laws/Acts, Rules, Circulars and Scheme of Service in such a way that it will not create conflict between 1st and 2nd Claimants’ members (including the 3rd and 4th Claimants) and 5th, 6th and 7th Defendants as well as other Pathologists or other professionals in the 1st defendant’s services and or employment.
  6. An Order directing the Defendants jointly and severally to allow members of the 1st and 2nd Claimants (including the 3rd and 4th Claimants) to operate/work under a separate Department in the Irrua Specialist Teaching Hospital, headed by a Medical Laboratory Scientist including the different Unit of the Department in accordance with extant Laws/Acts, Circulars, Rules, Scheme of services and the judgments of this Honourable court.
  7. An Order directing the Defendants jointly and severally not to treat, regard and or place members of the 1st and 2nd Claimants including the 3rd and 4th Claimants in the employment of the 1st defendant as being under any other department apart from the department of Medical Laboratory Services which Department and its various Units must be headed by a Medical Laboratory Scientist and not a member or person of any other profession or Department (particularly Pathologists).
  8. An Order of perpetual injunction restraining the Defendants, their agents, privies, assigns and or servants from treating the 1st and 2nd Claimants’ members in the employment of the 1st defendant as being under the Department of Pathology, Haemathology, Microbiology or any other Department headed by a person of another or any other profession apart from Medical Laboratory Services Department headed by a Medical Laboratory Scientist in accordance with extant Laws/Act, Rules, Circulars and approved scheme of services.
  9. An Order of perpetual injunction restraining the Defendants either by themselves, their servants, agents, privies, assigns or any person howsoever called from bringing and or employing the service of private Medical Laboratory Scientist not being employees of the 1st defendant as provided by the relevant extant Laws, Rules, Scheme of Service circulars or entering into any form of contract/agreement with persons or company not being employee of the 1st defendant employed in accordance with the relevant extant Laws/Acts, Rules, Circulars, Scheme of services, etc. to perform the duties, functions and services of  the 1st and 2nd Claimants’ members in the 1st defendant employment or to operate in the 1st and 2nd Defendants’ members office, Laboratories, premises or departments in the 1st defendant’s premises.
  10. An Order that the declared rights pronounced upon in favour of the Claimants by the judgments of this Honourable court in Suits Nos. NICN/ABJ128/2012 and NICN/ABJ/284/2014 delivered on the 23rd day of October, 2013 and on the 27th day of January, 2016 respectively are NOTICES to the Defendants in this suit to respect the status of the Claimants as distinct professionals in the employment of the 1st defendant.
  11. An Order on the 1st – 4th Defendants to immediately adjust, as a legal duty  on them their administrative structure in order to reflect the legally recognized status and rights attached to the 1st and 2nd Claimants’ members including the 3rd and 4th Claimants who are in employment of the 1st defendant.

 

The claimant had in the course of the proceedings, vide a motion on notice dated 30th October, 2018 and filed on 1st November, 2018 applied to amend their Originating Summons, this was heard and granted by the court on the 6th of November, 2018, attached to the Amended Originating summons is a 26 paragraph affidavit deposed to by Obarhua Ejiroghene. Male, Christian and a Medical Laboratory Scientist of Medical Laboratory Services Department, Irrua Specialist Teaching Hospital, Irrua, Esan Central Local Government Area, Edo State, two Exhibits, which are judgments of this court in suit nos. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 delivered on the 23rd day of October, 2013 and on the 27th day of January, 2016 respectively, a written address encompassing their arguments in support of their case was also filed. C.N Dike of counsel for the claimants at the hearing adopted the address as their arguments in respect of this case.

 

The Defendants on their own filed their memorandum of appearance and counter affidavit in opposition to the originating summons. The counsel for the Defendants filed a motion dated 30th January, 2018 seeking for extension of time to serve and file their memo, counter affidavit to Originating Summon and a deeming order, which was granted by the court on 12th July, 2018.  The 28 paragraph counter-affidavit was deposed to by Miss Gift Enoguan, Female, Chambers Secretary of J. O. Elenbalulu & Co. dated 31st January, 2017. A written address was also filed and adopted by J.O Elenbalulu of counsel for the Defendants at the hearing.

 

The claimants formulated a sole issue for determination in their address to wit:

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

Learned counsel for the Claimants argued in his address that the Claimants are entitled to the benefits of the above cited judgments and same are binding on the Defendants.

He argued that the 1st Claimant is the umbrella body of all Medical Laboratory Scientists in the Public Health Sector in Nigeria and the judgments delivered on the 23rd October, 2013 and on the 27th January, 2016 in favour of the 1st Claimant declared certain legal rights of the 1st Claimant’s members who are employed in the Public Health Sector of the Federation and by so doing, the Claimants in this suit and indeed members of the 1st and 2nd Claimants including the 3rd and 4th Claimants are entitled to the legal rights and benefits pronounced by this Court in those two Judgments.

Claimants’ counsel submitted that the 1st Defendant is a parastatal of the Federal Government, the 2nd Defendant the Board of Management of the 1st Defendant, while the 3rd and 4th Defendants are public servants in the employment of the 1st Defendant. He argued that the judgments in contention are for the members of the Claimants employed in the Public Health Sector and is therefore binding on the Defendants.

Counsel argued that the judgments affects not only parties in that case but also parties in the present suit in the following ways;

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

Finally, counsel urged the court to resolve the question posed in the Originating Summons and the issues raised in his Address in favour of the Claimants and grant the reliefs sought in this case; as this Court rightly put in Suit No. NICN/ABJ/284/2014 as follows:

“Once the issues arising in a suit are resolved in favour of the Claimants, and against the Defendants, it follows, like light follows darkness, that the reliefs claimed, being consequential on the resolution of the issues, must be granted to the Claimant…..”

The Defendants counsel while adopting his address on behalf of the Defendants relied on their counter affidavit of 28 paragraphs dated 31/1/2017 and a 50 paragraph further affidavit dated 9/10/2017. He also formulated eight issues for determination in the written address to wit:

  1. Whether the Defendants have been in any form of breach by not carrying out the act which the Claimants seek to enjoy as contained in their prayer 6.
  2. Whether this Honourable court can assume jurisdiction to compel anybody, parties including the Defendants to comply with an order or judgment of court which is subjudice and subject of the court of Appeal.
  3. Whether this Honourable court can compel parties to comply with orders and judgment which are not directed at them especially as they are total strangers to the proceedings giving rise to the judgments and orders.
  4. Whether filing this process as it stands just now is not an abuse of the processes of this Honourable court.
  5. Whether the Claimants’ hands can be said to be clean before equity considering their flagrant disobedience of the orders of this Honourable court as well as taking the rules of procedure of this Honourable court for granted.
  6. Whether the Claimants herein not being a trade union but a body registered under the companies and allied matters act can fight for the welfare of its member as though it is a trade union and whether this Honourable court can assume jurisdiction and entertain this action.
  7. Whether this Honourable court ought not to dismiss this suit with exemplary and substantial costs.
  8. Whether the 1st defendant as an employer of labour in the health sector cannot formulate its organogram as it deems fit and run its establishment in its best interest.

On issue one, J. O. Elenbalulu, counsel for the Defendants submitted that Claimants’ prayer six (6) which included University of Benin Teaching Hospital did not accord with official reasonableness as the jurisdiction of the 1st defendant and other Defendants herein is restricted only to the operations within Irrua Specialist Teaching Hospital, Irrua, Edo State and not beyond.  He urged the court to hold that the defendants cannot accede to the said prayer as it is ultra vires the power of the Defendants as well as the power of this court.

On issue two, counsel submitted that it is a trite principle of law that a court cannot grant to a party what it has not been requested to do.  A careful study of the two judgments which the Claimants seek to rely upon i.e. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 respectively cannot form the basis of a grant of their prayers or claims by this court.  He reiterated that both judgments are subjects of appeal as they are subjudice before the court of Appeal, Abuja.  They have both been adjourned sine die pending the decision of the court of Appeal.  He urged the court to hold that the processes filed in this case is an abuse of the processes of this court as the cases are still pending in court.

On issue three, counsel submitted that the Claimants are simply asking this court to look the other way away from justice so that they can over reach the Defendants.  Counsel urged the court not to be swayed by these requests and arguments as they are not made in the interest of justice. He stated that Supreme Court has held in a plethora of cases that courts are not Father Christmas that would give out even where no demand or request has been made.  He pointed out that the Claimants were not parties in the Judgments in contention and cannot benefit.  He cited the case of Nabaruma v. Offodile (2005) I FWLR (Pt 248) 858 @ 868 para. D and Green v. Green (1987) 3 MWLR (Pt 60)480 and Madukolu v. Nkemdilim  (1962) All NLR 581.

On issues four and five counsel submitted that while Suit No. NICN/ABJ/128/2012 was on going, the Claimants herein who were also in the case realized that they had filed the case under a wrong name and so applied to court for leave to amend and come to court by their registered name and the court granted the prayer.  The Claimants however refused to obey the order of this court granting them leave to amend their name and be properly before the court.  He reiterated that the judgment cannot apply to the Claimants as the registered name by which they are known is not the name on the judgment.  He pointed out that the Claimants have not come to equity with clean hands but with hands stained with the filth of disobedience, having not obeyed the order of this court by not filing a consequential amendment to their processes. He urged the court to hold that they cannot get equity because ‘‘he who seek equity must do equity’’ he cited the Supreme Court case of Afrotec Technical Services Nig. Ltd v. MIA @ Sons Ltd and Anor. (2000) 4 NSCQR 379.

On issue six, counsel submitted that the Claimants not being a trade union lacks the capacity (locus standi) to have instituted this action and the demands therein on behalf of its members.  He predicated his argument on the decision of the Ibadan Judicial Division of this court in suit NICN/IL/07/2014 between The Incorporated Trustees of the Association of Medical Laboratory Scientists of Nigeria and Ors v. Attorney General of the federation and ors, and pointed out that the court in that case held that the 1st Claimant’s function as Incorporated Trustees under the Company and Allied Matters Act (CAMA) is restricted to religious, education, literary, scientific, social, development, cultural, sporting or charitable purpose and not to a cause of action which relates to the conditions of service, work place, including health, safety, welfare of labour of  its member etc. as it is only a body or bodies registered under the Trade Union Act Cap T, LFN, that can institute and sustain this action.

Finally, counsel submitted that this court lacks jurisdiction to entertain this action as it stands.   He submitted that the action is incompetent and therefore urged the court to dismiss same in the interest of justice with substantial cost and a punitive/exemplary cost against the Claimants, citing Anyanwu v. Ogunewe (2014) 8 NWLR.

Learned counsel for the claimants filed a Reply on Point of Law on the 18th July, 2018 and submitted that typographical error or clerical mistake can be corrected even when they appear in a judgment as in the name University of Benin Teaching Hospital instead of Irrua Teaching Hospital on the originating process.

On issue two, counsel submitted that it is trite that he who asserts must prove.  He cited Section 131 (1) and (2) of the Evidence Act.  Also cited Bello v. Gov. of  Gombe State (2016) 8 NWLR part 1514 page 219 ratio 12 @ page 233 pp 287 para A-D.  The Defendants must show with credible documentary evidence that suits No. NICN/ABJ/128/2012 and NICN/ABJ/284/2014 were or have been adjourned sine die and that the adjournment sine die affects the hearing of this suit.

On issue three, counsel submitted that the claimants are proper parties in this suit as long as the applicants are working in the public health sector of a Federal Government parastatal, the 1st and 2nd Defendants are operators in the public health sector, and  the 3rd – 7th Defendants are agents of the 1st and 2nd Defendants.  He therefore reiterated that all the Defendants are proper parties in this suit, and that the case of Nabaruma v. Offodile Supra relied upon by the Defendants is most inappropriate.

On issues four and five, counsel submitted that the Defendants retains the burden of proving his assertion he cited section 131 (1) and (2) of the Evidence Act and the case of Bello v. Gov. of Gombe State supra.  He submitted that the process seeking to amend the name of the 1st claimant in Suit No. NICN/ABJ/128/2012 was filed and deemed properly filed in the proceedings, and that the assertion by the Defendants that no amendment was made was not proven, reiterating that the failure of the Defendants to attach the order of the court on the said amendment knocks the bottom off their argument and this is fatal to the Defendants issues 4 and 5. He therefore stated that the cases by the Defendants is not apposite.

On issue six, counsel argued that the Defendants must attach Certified True Copies of the judgment in Suit No. NCN/IL/07/2014 and make reference to the relevant portion of the judgment they are relying on, without which the court is urged to discountenance their argument that the 1st claimant lacks the locus to institute this action.

Learned counsel posited that the entire further counter affidavit is incompetent as the deposition thereto relates to the subject matter in suit No. NICN/ABJ/255/2017 on taking of Bench Calls by Pathologist in the Laboratory manned by Medical Laboratory Scientists, and finally submitted that the case of the claimants stands unchallenged and urged the court to grant the declarations, reliefs and the consequential orders.

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

  1. Whether or not this court has jurisdiction to entertain this suit

 

  1. Whether or not the Claimants are entitled to the reliefs as captured on the Originating Summons.

I find it necessary to clarify the 1st issue raised by the Defendants in their address, as this issue has been overtaken by event, the inclusion of University of Benin Teaching Hospital instead of the 1st Defendant in the claimants’ 6th prayer was amended by order of court on the 6th of November, 2018.

On the 1st issue formulated by me, the law is iron clad that jurisdiction is fundamental and crucial in any adjudication because if the court lacks jurisdiction to entertain a suit, the proceedings of a court will be afflicted by a fundamental and deadly virus which will result in fatality. In legal parlance the proceedings will be null, void and of no effect, no matter how brilliantly they might have otherwise been conducted-Per F. Omoleye, J.C.A in Eregbowa & Ors. V. Obanor & Ors. [2010] LPELR-8964 (CA).See also Ike v. INEC & Ors. [2010] LPELR-4293; N.D.I.C v. C.B.N [2002] 7 NWLR (Pt.766) 272.

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

The Defendants have contended that this court cannot assume jurisdiction to compel anybody, parties, including the Defendants to comply with an order or judgment of court which is subjudice and subject of an appeal before the court of Appeal.

It is the law that he who asserts must prove. See Sec. 131 Evidence Act 2011, Bello v Emeka 181 1 SC 101. The contention of the defendants that this court cannot assume jurisdiction over this matter because of a pending appeal on the judgments which has been adjourned sine die is unproven. There is nothing before this court backing up the defendant’s contention on this assertion. As no document was placed before the court in proof thereof.

However, assuming without conceding that indeed the judgments which the claimants seek to rely on are pending before the court of appeal, there is nothing that precludes this court from interpreting its judgment. In Adekunle v. Adedeji [2014] LPELR-22342 (CA) the Court of Appeal per Owoade, J.C.A said

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

Furthermore, Section 7(1) (c) (v) of the National Industrial Court Act, 2006 confers this court with exclusive jurisdiction in matters relating to the determination of any question as to the interpretation of any award or judgment of the court. The Claimants in this suit have only come to this court for the interpretation of the judgments in suit No. NICN/ABJ/128/2012 and suit No. NICN/ABJ/284/2014, the further and better affidavit filed by the Defendants have no nexus to the application before the court, as the Defendants, were by their affidavit, seeking to re argue a case in which a decision has been rendered, this court is restricted to the interpretation of the decision in those cases, therefore the further and better affidavit filed by the Defendants goes to no issue and is therefore discountenanced. It is not in doubt that the judgments in question declared certain rights for medical laboratory scientists in all public health institutions, and in effect extend to the rights of the Claimants’ in this suit, the 2nd– 4th Claimants’ are public servants engaged in the public health sector of the 1st Defendant, and as such are allowed in law vide originating summons to seek judicial interpretation of any decision that will affect their rights, See, Ejura v. Idris [2006] 4 NWLR (Pt.971) Pg.538 where the court Per Rhodes-Vivour, J.C.A opined thus;

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

Learned counsel for the defendants had argued that the Claimants instituted the action in suit No. NICN/ABJ/128/2012 with a wrong name and they did not comply with the order of the court to amend their processes to reflect the correct name. I want to restate here that what is before me is an originating summons to interpret the decision of the trial court in that suit, the issue of what transpired during the course of trial is not for this court to  delve into in an originating summons proceedings, the argument is therefore also discountenanced. I so hold.

J.O Elenbalulu of counsel for the Defendants contended in his address that the claimants cannot institute this action because they are not a Trade Union, and as it relates to conditions of service in the work place of its members, he cited the Judgment of the Ibadan division of this court in suit No NICN/IL/07/2014 delivered by Kola-Olalere J. I want to note at this point that the C.T.C of the judgment of the Ibadan division of this court in suit No NICN/IL/07/2014, cited and heavily relied on by the Defendants, was not tendered before court as provided by Order 45 Rule 3 of the Rules of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and the argument of counsel on this issue was at best spurious and lacking in substance, there is no doubt that the Defendants retains the duty to convince the court of his assertions in law, see Section 131 of the Evidence Act, 2011, learned counsel for the Defendants’ argument that the claimants are incorporated trustees registered under the Companies and Allied Matters Act (CAMA), and are not a registered trade union and so do not have the requisite locus to pursue this action was not backed up with credible evidence, more so the argument can only relate to the 1st and 2nd Claimants as the 3rd and 4th claimants in this case are interested parties being Chairman and Secretary of the Association of Medical Laboratory Scientists, of Nigeria, 1st Defendant’s branch, representing the interest of their members in that institution, they have the locus to institute this action, See BPE V. INTERSTELLA COMMUNICATIONS LTD & ANOR 2013 LPELR 22025 CA;

   “I am of the view that where there is a link between the applicant and the subject matter of the judgment sought to be appealed against, the applicant is a person interested and should not be denied the locus standi to sue”

Assuming therefore that the 1st and 2nd claimants lacks the capacity to sue in this action, I find that the remaining claimants can still maintain the action against the Defendants in view of the provisions of Order 13 Rules 11(1) and (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, I so hold.

Taking it further, It is not in doubt that the Association of Medical laboratory scientists is a trade union recognised in the 3rd Schedule of the Trade Unions Act, Cap T, LFN ,2014, and under Medical and Health workers Union, (listed as No 4) their umbrella body, and as such can sue on behalf of its members, per adventure, the Claimants instituted the action in a wrong name, it is the position of the law that when both parties are quite familiar with the party envisaged in an originating process, and could not have been misled or have any real doubt/ misgiving as to the identity of the person suing, then there can be no problem of mistaken identity to justify the striking out of the action. Misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued. See Karmame & Anor v. Dan’Azumi & Ors [2011] LPELR-9192 (CA), and OKEKE V. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL 2018 LPELR43781 CA per Ogunwumiju J.C.A

“A misnomer has been described as occurring where the natural or legal person actually exists but a wrong name is used to sue. See Emespo Continental v. Corona S. MBH (2006) 11 NWLR Pt. 991 Pg. 365 at 378. Looking at the initiating process of the suit, there is no doubt that the Respondent would be in no doubt that it was the Management Board that was sued being the name that the Appellant ought to have used. The Appellant merely got the appropriate name wrong. This to me is a case of misnomer. See Mailafia v. Veritas Insurance (1986) 4 NWLR Pt. 38 Pg. 802 at 812. In this case, there is no doubt that the wrong description of the Respondent has not misled the Respondent”

There is no doubt in this case that the Defendants are aware that they are been sued by the Association of Medical Laboratory Scientists in their establishment, and as such, the mis-description of a party will not detract from its capacity to sue, especially where there is a party that fits the description and possesses the requisite locus. It is on the above premise amongst others stated above that I find that the claimants in this suit has the locus to maintain this action. I so hold.

I will now go into the substance of this suit, the questions the court is been called upon to address in the instant suit is whether they are entitled to the benefits of the judgments of this court cited in their Originating summons, the decisions in the Judgments are here stated below:

 

NICN/ABJ/128/2012

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

 

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

 

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

 

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

 NICN/ABJ/284/2014

RELIEFS GRANTED

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

 

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

 

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

 

AND

 

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

 

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

 

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

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

Premised on the above captured reliefs granted in suit Nos NICN/ABJ/128/2012 and NICN/ABJ/284/2014 I have reached the conclusion and resolution that the same rights as clearly enunciated and granted in the above cited Judgments are applicable to the Claimants’ in this suit. I therefore resolve the questions for determination in the present suit in favour of the Claimants. I so hold.

The reliefs claimed by the Claimants and granted by this court is as captured in their Originating Summons as follows:

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

 

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

 

 

As to the other reliefs captured in the Originating Summons these are within the internal, administrative and domestic affairs of the 1st Defendant, more so the 1st Defendant is a creation of statute.  The rights declared in this Judgment confirms the legitimate rights of the Claimants in the employment of the Defendants, which are within the administrative capacity of the Defendants, and are to be implemented to foster industrial harmony between the parties in this suit. See UNILORIN V RASHEEDAT ADESINA 2014 LPELR 23019(SC).

In all it is hereby declared as follows:

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

 

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

 

 

All administrative steps and requirements to ensure full implementation of the rights of the claimants declared in this judgement are to be put in place by the Defendants.

I make no order as to cost

Judgment is accordingly entered.

 

HON.JUSTICE A.A. ADEWEMIMO

JUDGE

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