THE INCORPORATED TRUSTEES OF THE MEDICAL IMAGING SOCIETY OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

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

Dated this 20^th day of July, 2018

SUIT NO: NICN/ABJ/331/2016

BETWEEN:

THE INCORPORATED TRUSTEES OF

THE MEDICAL IMAGING SOCIETY OF NIGERIA (MISON).

CHUKWU FRANK IKG

NATIONAL PRESIDENT,

MEDICAL, IMAGING SOCIETY OF NIGERIA, (MISON).

ETEN PHILIP

CHIEF MEDICAL, IMAGING SCIENTIST,

F.C.D. HOSPITAL, ASOKORO, ABUJA.

ANIEBO IRECHUKWU,

CHIEF MEDICAL, IMAGING SCIENTIST,

UNIVERSITY TEACHING HOSPITAL, GWAGWALADA, ABUJA.

AKOCHI SUNDAY JOSHUA,

MEDICAL IMAGING SCIENTIST/RADIOGRAPHER,

FEDERAL TEAHCING HOSPITAL,

ABAKALIKI, EBONYI STATE.

TIJANI ABDUL-KADIR,

CHIEF RADIOGRAPHER, NATIONAL HOSPITAL,ABUJA.

AGBO WILLIAMS OGBONNA,

CHAIRMAN, ASSOCIATION OF RADIOGRAPHERS OF NIGERIA,

JOS UNIVERSITY TEACHING HOSPITAL (JUTH) CHAPTER.

IBEAGWA OSITA BRISBANE

SECRETARY, ASSOCIATION OF RADIOGRAPIIFRS OF NIGERIA,

JOS UNIVERSITY TEACHING HOSPITAL (JUTH) CHAPTER…………………CLAIMANTS

AND

HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE,

FEDERAL MINISTRY OF JUSTICE, ABUJA.

HON. MINISTER OF HEALTH, FEDERAL MINISTRY OF HEALTH, ABUJA.
HON. MINISTFR OF LABOUR AND PRODUCTIVITY,

FEDERAL MINISTRY OF LABOUR AND PRODUCTIVITY,

DR. AMINU M. MOHAMMED, (GENERAL MANAGER,

F.C.D.A. HOSPITAL MANAGEMENT BOARD, FCT ABUJA)

DR. J.A.F. MOMOH,

(CMD, NATIONAL HOSPITAL, ABUJA)

DR. EMEKA ONWE

(CHIEF MEDICAL DIRECTOR,

FEDERAL TEACHING HOSPITAL, ABAKALIKI, EBONYI STATE)

MEDICAL AND DENTAL COUNCIL OF NIGERIA, ABUJA.
CHIEF MEDICAL DIRECTOR,

JOS UNIVERSITY TEACHING HOSPITAL (JUTH)

INCORPORATED TRUSTEES OF ASSOCIATION RADIOLOGISTS IN NIGERIA (ARIN).
DOCTOR (MRS) MOJISOLA ATALABI

NATIONAL PRESIDENT, INCORPORATED TRUSTEES OF

ASSOCIATION OF RADIOLOGISTS IN NIGERIA (ARIN)

INCORPORATED TRUSTEES OF

MEDICAL AND DENTAL CONSULTANTS’ ASSOCIATION OF NIGERIA……DEFENDANTS

Representations:

K.O. Ijatuyi for the Claimants

O.M. Ogunjide for the 1^st Defendant.

T.A. Suleiman for the 4^th Defendant

Sanusi Musa with I.T. Abdulrasheed for the 7^th Defendant

M.Y. Danung with I.B. Hirse and J.J. Gilbert for the 8^th Defendant

C.J. Dimgba with C.V. Anachuwa for the 9^th and 10^th Defendants

C.O. Okoh for the 11^th Defendant.

Ruling/Judgment.

This suit was commenced via an originating summons filed on the 15^th of February, 2016. The suit was originally before His Lordship, Hon. Justice B.A. Adejumo before being transferred to this court sometime in October, 2017.

The suit was also originally commenced by 1^st to 6^th Claimants against 1^st to 7^th Defendants.

Thereafter, the Claimants by a motion on notice filed on the 9^th of November, 2017 sought to join the 7^th and 8^th Claimants and also the 8^th Defendant while applications were separately made for the joinder of 9^th and 10^th Defendants on one hand and 11^th Defendants on another. The said applications were granted.

The joinder necessitated the amendment of the originating summons and by the said amended originating summons consequent upon the joinders, the Claimants sought the determination of the following questions:

Whether having regard to the combined effects of the following relevant Laws/Acts. Rules, Circulars and Scheme of Service that is to say:
The Radiographers (Registration, etc.), Act Cap, R1, 2004, LFN.
The Medical and Dental Practitioners Act Cap M8, 2004, LFN.

iii. University Teaching Hospitals (Reconstitution of Boards) Cap. U15 2004. LFN.

Public Service Rules. 2008 Edition.
Approved Scheme of Service (For Radiographer Cadre) as contained in various Circulars/Letters from the Federal Ministry of health and the office of the Head of Civil Service of the Federation (circular dated 18^thJune. 2015),

members of the Claimants Association, are a distinct professional group whose trainings and responsibilities are different from that of other Health professionals (especially Radiologists) in the employment of the Defendants.

Whether having regard to the clear provisions of the Radiographers(Registration e.t.c) Act, Cap R1, 2004, LFN, a person who is not professionally trained as a Radiographer and registered by the Board, is entitled to practice any or all the various aspects of the Radiography Profession in Nigeria.
Whether having regard to the provisions of the above mentioned Acts and / or the Scheme of Service approved by the Federal Government for the Cadre of Radiographers/Medical Imaging Scientists [As regards members who are licensed and registered by the Radiography Registration Board of Nigeria]. members of the Claimants’ Association are entitled to professional autonomy within the field of their competence in the Public Health Sector.
Whether having regard to the extant Laws/Acts. Rules, Circulars and Scheme of Service mentioned earlier, the current practice at the Tertiary health Institutions in Nigeria, whereby Department of Radiography/Medical Imaging Sciences are put under the same department with Radiology is proper.
Whether the Operational Manual of the Tertiary health Institutions in Nigeria or any Administrative Policy whatsoever can be invoked to circumvent the due operations and implementation of the above Law/Acts, Rules, Circulars and Scheme of Service applicable to the Claimants.
Whether the creation and recognition of a separate Medical Radiography/Imaging Sciences Department in accordance with the extant Laws/Acts and Rules mentioned above will not assist to realize a better and efficient health Care Delivery System at the Tertiary Health Institutions, where the claimants are employed in Nigeria.

Upon a resolution of the above questions, Claimants are seeking the following reliefs jointly and severally from the defendants:

A declaration that the Radiographers Registration Board of Nigeria (RRBN) is the Sole Statutory body established by law to regulate the practice of Radiography or Science of the application of various form of radiant energies which includes X-ray Imaging, Radionuclide Imaging, Ultrasonic Imaging (Ultrasound), Thermographic Imaging and Magnetic Resonance Imaging etc.
A declaration that only professionally trained Radiographers that are regulated and or subjected to the Radiographers Registration Board of Nigeria (RRBN) and who are qualified as Radiographers within the meaning and intendment of sections 28 (1), (a), (13), (c) and (d) of the Radiographers (Registration, etc.) Act Cap R1 2004 LFN. can practice any or all the various aspects of radiography which include that (sic) art and science of the application of various forms of radiant energies in human beings in Nigeria.
A declaration that Radiologists of whatever grade, who are not registered as Radiographers/Medical Imaging Scientists, are not entitled to practice the Radiography profession in any manner whatsoever.
An order directing the Defendants to immediately create a Radiography/Medical Imaging Science Department under the leadership of a qualified Radiographer, licensed by the Radiographers Registration Board of Nigeria, in all Tertiary Health Sectors in Nigeria and in accordance with the extant Laws/Acts Rules, Circulars and Scheme of Service for all administrative or management purposes.
An injunction restraining the Defendants and their agents and privies who are not subject to the regulations of the sole statutory Regulatory Body of the Radiographers Registration Board of Nigeria (RRBN) from eroding or undermining the professional autonomy of the claimants’ practice or claiming to represent or to hold themselves in any position or to assume any such position reserved for the claimants and their members by using any title or nomenclature which otherwise interferes in the performance and discharge of the functions of the claimant as Radiographers or Medical Imaging Scientists.
An order directing the Defendants to immediately recognize the existing Medical Radiography/Imaging Sciences Department and Federal Government approved Scheme of Service and put it into full operation for all members of the Claimants’ Association in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of Service aforementioned and for all administrative purposes in all Tertiary Health Institutions in Nigeria.

In support of the Originating summons, the Claimants filed a 47 paragraphs affidavit deposed to by one Chukwu Francis and also a written address.

In reaction to the Originating summon, the 1^st, 4^th, 7^th, 8^th 9^th and 10^th Defendants all filed preliminary objections. The Defendants also filed their various counter affidavits and written addresses in opposition to the Originating summons while the 11^th Defendants in addition, also filed a counter-claim against the Claimants.

The Preliminary Objection of the 1^st Defendant filed on the 1^st of June, 2018 was moved by O.M. Ogunjide Esq., learned Counsel to the 1^st Defendant and same is praying this court for the following:

1 AN ORDER of this Honourable Court striking out this suit for want of jurisdiction.

AN ORDER striking out this suit for misjoinder of party
AN ORDER of the Court striking out the name of the 1^stDefendant as a party from this suit NICN/ABJ/331/2016 and setting aside all the processes served on him by the Applicants (Claimants) as they disclose no reasonable cause of action against him and as such not a proper party in this suit.
AND FOR such further consequential order or orders as this Honourable court may deem fit to make in the circumstances.

The preliminary objection was predicated on the following grounds:

This court lacks the requisite jurisdiction to hear this suit
The Claimants/Respondents have no locus standi to institute this suit.
proper parties are not before the court
The suit can be properly, completely, effectually and finally determined without joining the 1^stRespondent as a party.

The 4^th Defendant on their part filed their Preliminary objection on the 23^rd of February, 2018. The said preliminary objection was moved by T.A. Suleiman Esq. No particular relief appears on the face of the notice. Same is however, predicated on the following grounds:

This suit as presently constituted does not disclose Cause of Action against the 4^thDefendant and as such is not a proper party.
That the General Manager, F.C.D.A. Hospital Management Board, FCT Abuja is not a juristic person.

The notice is accompanied by a 7 paragraph affidavit deposed to by one Ibrahim Isa and a written address.

The 7^th Defendant on their part filed their notice of preliminary objection on the 20^th of February, 2018. It was moved by Sanusi Musa Esq. wherein the following reliefs were sought:

AN ORDER of this Honourable Court striking out this suit on the ground that this Honourable Court lacks the requisite jurisdiction to hear the suit.
AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The sole ground upon which the Notice of Preliminary Objection is raised is that by the combined provisions of Order 6 Rule 3, Order 7 Rule 1, and Order 13 Rule 14(5), of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, the 7^th Defendant/Objector is entitled to be served with the originating process in this suit.

The preliminary objection was accompanied with a 10 paragraphs affidavit deposed to by Lawal Saidu Muhammed and a written address.

The notice of preliminary objection of the 8^th Defendant which was moved by M.Y. Danung Esq. was filed on the 30^th of April, 2018 and the following reliefs were sought:

AN ORDER of this Honourable Court striking out/dismissing the amended originating summons in this suit.

AND FOR SUCH FURTHER order or orders as this Honourable Court may deem fit to make in the circumstance.

The preliminary objection was predicated on the grounds that:

The originating summons initiating this suit is, fundamentally and irredeemably defective, having been improperly issued and signed.
The originating summons issued sometime in 2016, having not been served on the 8^thdefendant/objector, within the period of time statutorily stipulated, is expired as against the 8^th defendant/objector, and has ceased to be in force.
The amended originating summons issued sometime in 2018, is void, the same having been predicated on the expired originating summons which had ceased to be in force.
The subject matter of the suit is not within the enumerated jurisdiction of the National Industrial Court of Nigeria.
The claimants having failed to institute this suit within the three (3) months of the accrual of the cause of action, as provided by the Public Officers’ Protection Act.
The 8^thdefendant/objector in this suit is not a proper party and there is no relief being sought specifically against it.
The suit, as constituted is pre-mature, as the claimants have not exhausted the internal mechanism for dispute resolution.
This suit seeks to compel the defendants herein to exercise an administrative/discretionary power and function by creating a separate department for the claimants.

The notice was accompanied with a 10 paragraph affidavit deposed to by one Bitrus D. Ali and a written address.

The 9^th and 10^th Defendant on their part filed their preliminary objection on the 22^nd of February, 2018. Same was moved by C. J. Dimgba Esq. and prayed this court for:

An order of this honourable court striking out or dismissing this suit for want of jurisdiction.
And for such further orders as this honourable court may deem fit to make in the circumstance.

The objection was based on the grounds that:

The Claimants lacks locus standi to institute this action.
Proper parties are not before this Honourable court.

The preliminary objection was supported by a written address.

In reaction to the above objections, the Claimants filed separate counter affidavits and written addresses on the 25^th of April 2018 in opposition to the preliminary objection of the 1^st and 8^th Defendants. While that in opposition to the objections of the 4^th and 9^th and 10^th Defendants were filed on the 29^th of March, 2018. Claimant did not file any process against the preliminary objection of the 7^th Defendant.

Arising from the written addresses in support of the preliminary objections, counsel to the 1^st Defendant, O.M. Ogunjide, formulated four issues for determination to wit:

Whether the court have the requisite jurisdiction to hear this suit as presently constituted
Whether the Claimants/Respondents have the requisite legal standi to institute this suit.
Whether proper parties are before the court
Whether the suit can be properly, completely, effectually and finally determined without joining the 1^stDefendant as a party.

Counsel to the 4^th Defendant, T.A. Suleiman, on his part formulated three issues for determination to wit:

Whether or not the 4^thDefendant is necessary party which ought to be joined in this suit.
Whether the Claimants has a reasonable cause of action against the 4^thDefendant.
Whether General Manager, F.C.D.A. Hospital Management Board, FCT Abuja is a juristic person.

Counsel to the 7^th Defendant, Sanusi Musa, on his part formulated a sole issue for determination to wit:

Whether this Honourable Court has the requisite jurisdiction to entertain this suit.

Counsel to the 8^th Defendant, M.Y. Danung, on his part formulated seven issues for determination to wit:

Is the originating summons not defective, incompetent and liable to be struck out, in that it was not issued and signed in accordance with the law?
Having regard to the fact that the originating summons issued in 2016, was not served on the objector until the 12th February, 2018, is the originating summons not expired, totally lifeless, and liable to be struck out along with the amended originating summons predicated thereon?
Having regard to the subject matter of this suit, whether the National Industrial Court Act, and the Constitution of the Federal Republic of Nigeria (1999) as amended, vests jurisdiction on this Honourable Court to try the subject matter of this suit.
Having regard to the fact that the cause of action in this suit arose sometime in 2015, whether the claimants’ suit filed sometime in 2016, is not statute barred and liable to be dismissed in limine?
Having regard to the reliefs being sought for in this suit, and the fact that no relief is being sought against the objector, whether the same is a proper party to this suit.
In view of the total lack of compliance with the provisions of the Public Service Rules, 2008, and the Conditions of Service for Employees of the Jos University Teaching Hospital, 2003, which the 8^th defendant/objector is the head of, regarding the internal dispute resolution mechanism, whether this suit, as constituted, is not premature and liable to be struck out in limine?
Having regard to the fact that;
this suit seeks to compel the defendants to exercise an administrative/discretionary power and function;
the grant of the relief being sought for would amount to this Honourable Court granting mandatory injunction against the discretionary powers of the executives;

Whether the remedy available to the claimants lie in the grant of an injunction?

Counsel to the 9^th and 10^th Defendants, C.J. Dimgba, on his part did not formulate any particular issue but merely argued on the grounds upon which the objection is predicated to the effect that the Claimants lacks locus standi and that the proper parties are not before this court.

Upon the above, Counsel to the Claimants, K.O. Ijatuyi, reacted to the arguments of counsel to the 1^st Defendant by formulating a sole issue for determination to wit:

“Whether this suit is sustainable in view of the facts placed before the Honourable Court in the Affidavit?”

In reaction to the arguments of counsel to 4^th Defendant, Learned counsel to the Claimant formulated a sole issue to wit:

“Whether in view of the processes filed in this suit by the Claimants/Respondents, the Preliminary objection raised by the 4th Defendant/ Applicant is sustainable in the circumstances of this case ?“

Furthermore, in reaction to the argument of counsel to the 8^th Defendant, learned counsel to the Claimant adopted all the issues raised by the counsel to the 8^th Defendant and argued in opposition.

With regards to the argument of counsel to the 9^th and 10^th Defendants, learned counsel to the Claimants formulated a sole issue for determination to wit:

“Whether having regard to the materials placed before the Honourable Court till date, the objection being raised by the Applicants is sustainable?”

Consequent upon the consideration of all the processes filed in this suit and upon a consideration of the grounds upon which the several preliminary objections were based and the above formulated issues, and the arguments canvassed in support and in opposition, the issues for the determination of all the preliminary objections are to wit:

Whether or not this court lacks jurisdiction to entertain this suit due to alleged failure to renew the originating process and upon the alleged failure of service of the originating process on the 7^th and 8^th Defendants in this suit.
Whether or not the Claimants as presently constituted possesses the locus standi to institute this suit.
Whether or not the 1^st, 4^th and 8^th Defendants are proper parties upon a consideration of the circumstances of this suit.
Whether or not the suit as presently constituted is within the substantive jurisdiction of this honourable court.
Whether or not the suit of the Claimant is premature
Whether or not the suit of the Claimant can be entertained because it seeks to compel the exercise of an administrative/discretionary power and function.
Whether or not the suit of the Claimant as presently constituted is statute barred.
Whether or not the originating process filed by the Claimants in this suit is competent.

Before addressing all the above issues, which would determine all the preliminary objections, I must state generally that the resolution of the preliminary objection touching on jurisdiction of the court is paramount before proceeding to addressing the substantive suit. The courts have over the years restated the importance of the court possessing the requisite jurisdiction to entertain a suit before embarking on same. The court in INTERCONTINENTAL BANK PLC v. SUNSHINE OIL & CHEMICAL DEVT COMPANY (2014) LPELR-22928(CA) held that:

“Jurisdiction is the very basis on which any tribunal tries a case; it is the life line of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case. Be it at trial, on appeal to the Court of Appeal or to the Supreme Court, a fortiorari the court can suo moto raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issues of jurisdiction so as to save time and costs and to avoid a trial in nullity.” (Petro Jessica Enterprises Ltd v Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 @ 690.” Per DONGBAN-MENSEM, J.C.A. (P. 10, paras. A-F).

It is therefore reckoned that the preliminary objections raised by the Defendants are intended to terminate this suit at the preliminary stage as the court in EXECUTIVE GOVERNOR OF OSUN STATE v. FOLORUNSHO (2014) LPELR-23088(CA) held that:

“There is no doubt that the objective of preliminary objection is to terminate a case at the preliminary stage. That is to say that it is only issues that are free from any known legal handicap that should go to trial. See Yaro v. Arewa Construction & Ors. (2007) 6 SCNJ 418.” Per DENTON-WEST, J.C.A. (P. 22, paras. D-E).

That said, I proceed to consider the merits of the arguments in support and opposition of the issues above as drawn from the various grounds upon which the various preliminary objections were predicated.

With regards to issue one, which is “Whether or not this court lacks jurisdiction to entertain this suit due to alleged failure to renew the originating process and for failure of service of the originating process on the 7^th and 8^th Defendants in this suit”, learned counsel to the 7^th Defendant contended that jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks jurisdiction.

He then contended that crucial to the issue of jurisdiction is the service of processes, particularly the originating process on a Defendant. He cited Order 6 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 which provides that the Registrar shall arrange for prompt service of a copy of the originating process and accompanying documents on each Defendant or Respondent. While Order 7 Rule 1 (h) (v) of the same Rules further provides to the effect that any process or documents required or authorized by these Rules or ordered by the Court to be served on any person who is a party in a matter may be served as follows:

If the person or party is a statutory body or an institution, by serving a copy on the Director General, General Manager, the Executive, full-time member of the institution or Commission, Secretary or similar Officer or member of the Board or committee of that body, or any reasonable person, officer, or employee of the statutory institution acting on behalf of that body.

Counsel then submitted that the 7^th Defendant/Objector, being a statutory body established by section 1 of the Medical and Dental Practitioners Act Cap M8 LFN 2004, ought to have been served with the originating process in this suit in the manner provided by Order 7 Rule 1 (h) (v) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. But no such service was effected on the 7^th Defendant/Objector.

Counsel maintained that service is sine qua non and the failure of service renders any proceeding thereon a nullity. Counsel cited several cases including that of UBA PLC & ORS V. ADEMOLA (2008) LPELR5066(CA); Osmas Maduka v. Dr. Patrick Ifeanyi Ubah & ORS (2014) LPELR 23966 (CA) (P. 39, paras. B-E); Total E & P Nigeria Ltd v. Emmanuel & Ors (2014) LPELR-22679(CA) (Pp. 11-12, paras. B-A); Duwin Pharmaceutical & Chemical Co. Ltd V. Esapharma SrI, Italy & Anor (2017) LPELR-42695(CA).

Counsel concluded by urging this Honourable Court to strike out this suit for want of jurisdiction.

On the part of Counsel to the 8^th Defendant, his contention in relation to service is that that the Originating summons issued in 2016, was not served on the objector (8^th Defendant) until the 12^th February, 2018 and considering this, the originating summons has expired, totally lifeless, and liable to be struck out along with the amended originating summons predicated thereon.

Counsel referred this court to Order 6 Rule 4 (1) of the Rules of this Honorable court, which provides that every originating process shall be valid for six (6) months in the first instance, beginning from the date of its issue. Further, by the provisions of Order 6, Rule 4 (2) of the same Rules, any originating process not served within its lifespan i.e. within six (6) months, and upon an application by the claimant for renewal before the expiration, may be renewed by an Order of Court extending its validity for an additional three (3) months from the date of such renewal. Order 6, Rule 5 of the Rules further qualifies the Court’s power to renew an originating process, such as and including an Originating summons, strictly for good cause and upon prompt application.

Counsel then argued that in the instant case, the originating summons was issued sometime in 2016. It was not served within six (6) months from the said date. The claimants never applied for the originating summons to be renewed or the validity thereof to be extended by this Honourable Court. Consequently, the originating summons has since outlived the limits of its existence having expired irretrievably since 2017. Counsel cited the cases of AYALOGU & ORS. V. AGU & ORS. (2001) LPELR-7036(CA); RFG LTD & ANOR V. SKYE BANK PLC. (2012) LPELR7880 (CA) and OGBE V. ADEGBE & ANOR (2013) LPELR-22210 (CA).

Counsel urged the court, based on the authorities cited, to set aside the amendment of the expired originating summons in this suit and strike the same out along with the expired originating summons

In response to the contention of the 7^th Defendant, counsel to the Claimant merely informed the court that the 7^th Defendant has been duly served and he has responded to the suit of the Claimant by filing a Counter affidavit and written address in opposition of the suit hence his preliminary objection should be discountenanced.

With respect to the contention of the 8^th Defendant, counsel contended that the service of originating process by Order 7 of the Rules of this Court is the sole business of the Court and that the Claimants did all that was necessarily required of them to ensure the service was effected. He added that the 8^th Defendant was duly served after same was filed at the Court Registry. He cited the case of Ogwe & Anor v IGP and Ors. (2015) 7 NWLR (PT. 1459) 505 at 524 and urged the court not to visit the sins of the court registry on the Litigant or his counsel.

In resolving the above contention, it is pertinent for me to take a look at the court file since the issue is about service. With respect to service on the 8^th Defendant, I find that the 8^th Defendant was not originally a Defendant in this suit as the original set of Defendants were 1^st to 7^th Defendants, hence, the need to serve the 8^th Defendants the original process should never arise and consequently, the originating process in his case never expired since the 6 months prescribed by the Rules did not start counting in his favour until he was joined as a defendant. The Claimants applied to this court via a motion on notice filed on 9^th of November, 2017 which prayed for the joinder of the 8^th Defendant. Same was granted and necessitated the amendment of the originating summons. Once an amendment is made, the process takes the place of the original process and the said original process is to be disregarded. The court in CHIEF OLAIDE ONASANYA & ORS. V. CHIEF KOLAWOLE SODARA & ORS. (2012) LPELR-7862(CA) held that:

“It is trite that in the pleadings of the plaintiff before commencement of trial, a further amended statement of claim supersedes an amended statement of claim. This poses the question whether pleading later amended ceases to exist for the purpose of the proceedings. The Supreme Court aptly considered this intricate question in the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) pg. 170 at 185 – 187 paragraphs H – C where it concluded that: “Once pleadings are duly amended by the order of court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. This, however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear pleading which has been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried before the court. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. Thus, it cannot be considered as the basis of one’s case in any action. Nor may a court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of final or amended pleadings. See Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 9; Agbaisi & Ors. v. Ebikorefe & Ors. (1997) 4 NWLR (Pt. 502) 630 at 647-649.” Per IKYEGH, J.C.A. (Pp. 22-24, paras. G-E)

Considering the circumstances of the case, I find that the original process did not expire prior to its amendment and the service of the amended copy of the originating summons having replaced the amended originating summons is competent.

With regards to the contention of the 7^th Defendant, I agree with the position of the law that service is fundamental to the exercise of jurisdiction as it is trite. Hence, while the counsel to the 7^th Defendant contends that the 7^th Defendant was not served in accordance with the provision of the Rules of this court, he added that the 7^th Defendant was not served at all. I have therefore had to take a cursory look at the files and I find that the amended originating summons was served on the 7^th Defendant on the 13^th of February, 2018 as evidenced by the Stamp of receipt bearing the name of the 7^th Defendant and same was specifically received by one Kabiru .T.

That notwithstanding, learned counsel to the 7^th Defendant is of the position that the process ought to be served on the Director General, General Manager, the Executive, full-time member of the institution or Commission, Secretary or similar officer or member of the Board or committee of that body, or any reasonable person, officer, or employee of the statutory institution acting on behalf of that body as provided in Order 7 of the Rules of this court.

Considering the above, the designation of Kabiru T, who received the process in the instant suit on behalf of the 7^th Defendant is not known, however, I am of the firm view that the said Kabiru T falls in the category of either any reasonable person, officer or employee of the 7^th Defendant considering the appendage of the Stamp bearing the name of the 7^th Defendant. The process also bears an affidavit of service endorsed by Joseph Iortyom dated the 16^th of February, 2018.

In addition to the above, I should draw the attention of learned counsel to the provision of Order 5 Rule 1 of the Rules of this Court which provides that:

“Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any direction as it thinks fit”.

Assuming the affidavit of service cannot even be seen, the Supreme Court has held that there is no need for proof of service when the person served appears in court. The court in ADESANYA v. ALUBATA (2014) LPELR-23105(CA) held that:

“…My lord Ogundare JSC in the case of Societe Generale Bank (Nigeria) Ltd v. Adewunmi (2003) LPELR-3081 (SC) @ p. 2 held that:- “The purpose of affidavit of service is to convince the court that the persons on whom the processes are to be served have been duly served. Where there is no affidavit of service and the person served with a writ or any other process of a court appears in court, there is no further need to insist on proof of service. There cannot be a better proof than the appearance in court of the person on whom the process was served”.

Consequent upon the above, considering the fact that the Defendant has entered appearance in this suit and filed all necessary processes in opposition to the case of the Claimants which is an indication that the right of fair hearing of the 7^th Defendant has not been breached. Also, considering the provision of Order 5 Rule 1 which entitles this Court to treat the non-compliance with any provision of the Rules of this Court as an irregularity, issue one is resolved in favour of the Claimant to the effect that court is not divested of jurisdiction to entertain this suit due to alleged failure to renew originating process and upon the alleged failure of service of the originating process on the 7^th and 8^th Defendants in this suit.

With regards to issue two, which is “Whether or not the Claimants as presently constituted possesses the locus standi to institute this suit”, counsel to the 9^th and 10^th Defendants contended that the Claimants is an unknown Association seeking to usurp the powers of the Board of Radiographers Registration Board of Nigeria as spelt out in Radiographers (Registration, etc.) Act Cap, R1, 2004, LFN.

The Radiographers (Registration, etc.) Act Cap, R1, 2004, LFN as an Act established a Board for the control and practice of the profession of radiography and that all the reliefs sought by the Claimants can only be instituted by the Board of the Radiographers Registration Board of Nigeria according to Section 2 and 3 (1) of the Radiographers (Registration, etc.) Act Cap, R1, 2004, LFN. Counsel cited the cases of Oloruntoba-Oju V. Dopemu (2008) All FWLR pt. 411, 810 @ 837D; Amadi v. N.N.P.C (2000) 10 NWLR PART 674, PAGE 87 and DAILY TIMES OF NIGERIA PLC V. D.S.V. LTD (2014) ALL FWLR (PT. 713) P. 1978@ 2002-2003, PARAS G-B on the legal concept of locus standi and concluded that the Claimants cannot institute this action by usurping the powers of Radiographers Registration Board of Nigeria.

Counsel to the 1^st Defendant also made similar contention under issue two of the written address in support of their written address.

By way of reaction, learned counsel to the Claimants submitted that each of the Claimants is eminently qualified to institute this action as the issues raised therein are touching on some aspects of their profession in their working places. He added that the action has nothing to do with the statutory powers of the Radiographers Registration Board of Nigeria under Cap R1, LFN 2004.

Counsel also added that having regard to the descriptions ascribed to all the parties in this case,the proper parties are before the Court for proper adjudication of the issues being canvassed for a meritorious resolution. Counsel cited the cases of Adesokan v. Adegorolu (1991) NWLR (Pt.179) 293 at 305 — 306 and A.G Federation v. A.G Abia (2001) II NWLR (Pt.725) 689 at 742.

In addressing this issue, I take into account the position of the law that the lack of locus standi of the Claimants would rob the court of requisite jurisdiction to entertain this suit. The court in the case of MR. CYRIACUS NJOKU v. DR. GOODLUCK JONATHAN & ORS (2015) LPELR-24496(CA) held that:

“The phrase “locus standi” or “standing” refers to the right of a party to appear and be heard on the question before the court. It denotes legal capacity to institute legal proceedings in a court of law. In other words, the right to or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. It is the bulwark or the framework which entitles a litigant to bring another party before the altar of adjudication. See ADESANYA VS. PRESIDENT OF NIGERIA (1981) 12 NSCC 146; ATTORNEY GENERAL KADUNA STATE VS. HASSAN (1985) 2 NWLR (Pt. 8) 483 at 496 and BAKARE VS. AJOSE ADEOGUN (2014) 6 NWLR (1403) 320, 350. The concept focuses not on the merit of the case but on the merit of the person seeking to approach the court. The essence of the concept is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they seek to pursue. It is so fundamental that where a plaintiff lacks locus standi, the court cannot properly assume jurisdiction. I agree with counsel for the appellant that ADESANYA V. THE PRESIDENT (SUPRA). is the locus classicus on locus standi in Nigeria. The Supreme Court, per Bello, JSC held categorically at page 165 that – “To entitle a person to invoke judicial power to determine the constitutionality of such an action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he sustained or is in immediate danger of sustaining an injury to himself”… See ADESANYA (SUPRA); BEWAJI VS. OBASANJO (2008) 9 NWLR (1093) 540, 576 and IWARA VS. ITEM (2009) 17 NWLR (1170) 337.

It is also trite that in determining jurisdiction, it is the process filed by the Claimant that the court must give credence to in this case, the Originating summons and affidavit in support. See NKWONTA V. NIGERIAN GAS COY LTD & ORS. (2010) LPELR-3979(CA); Oloba v. Akereja (1988)3 NWLR (PT.84) 508 and Opiti v. Ogbeiwi 1992 4 NWLR (pt 234) 184, Skenconsult v. Ukey (1981) 1 SC 6.

I have therefore taken a look at the amended originating summons and I find that the 1^st Claimant is an Incorporated Trustees of Medical Imaging Society of Nigeria. The certificate of incorporation of same is annexed as Exhibit A.

Going by the above, there is no gainsaying that the 1^st Claimant as a body of radiographers can institute an action in relation to the industrial relation of their members. In AGBROKO & ANOR V. THE DIVINE CHURCH OF GOD & ORS (2013) LPELR-20884(CA) the court held that:

The effect of the registration of the trustees of the 1st respondent and the issuance of the certificate of incorporation to her as a body corporate, by CAMA, is that the said registered trustees have the power to sue and be sued in its corporate name. The registered trustees also have the power to hold and acquire property for the benefits of the association, that is the corporate body like the 1st respondent which was incorporated under Part C of CAMA, 1990. Adegoke v. Ona Iwa Mimo C & S (2000) FWLR (pt.28) 2136; Opara v. Registered Trustees C.M.Z.C (2004) FWLR (pt.190) 1419.” Per YAKUBU, J.C.A. (Pp. 16-17, Paras. E-G)

Furthermore, according to paragraph 5 of the affidavit in support of the amended originating summons, the 2^nd – 8^th Claimants are Radiographers who are professionally trained, qualified and registered to practice any or all the various aspect of Radiography Profession. The 2^nd to 8^th Claimants are also in the employment of some of the Defendants as Radiographers.

I have also taken a look at sections 1, 2 and 3 of the Radiographers (Registration, etc.) Act, Cap R1 LFN 2004 cited by Counsel to 9^th and 10^th Defendant which establishes the Radiographers Registration Board of Nigeria, states their functions, the composition of the Board and the Power of the Board. In that light, I find that none of the said sections relates to the Board monopolizing the capacity to sue in respect of matters affecting radiographers. The Board does not have the institution of a suit on behalf of radiographers as one of its express duties with which it is charged under paragraphs (a) – (c) of section 1.

I must consequent upon the above, state that as long as a person is personally affected by a cause of action, he has the locus standi to sue. The Nigerian citizens derive their locus standi from the constitution, statutes, customary law or voluntary arrangements in organization involving their civil rights and obligations. See Odenye v. Efunuga (1990) 7 NWLR (Pt. 164) 618.

Consequently, I find in favour of the Claimants that they possess the locus standi to institute this suit having established the fact that they are Radiographers who would directly be affected by the outcome of this suit and considering the fact that there is no evidence of any restriction on the right of the Claimants to sue.

I therefore resolve issue two in favour of the Claimants and against the 2^nd, 9^th and 10^th Defendants to the effect that the Claimants as presently constituted possesses the locus standi to institute this suit.

With regards to issue three, which is “Whether or not the 1^st, 4^th and 8^th Defendants are proper parties upon a consideration of the circumstances of this suit” the issue is drawn from the contentions of the 1^st, 4^th and 8^th Defendants.

Counsel to the 1^st Defendant contended that some of the parties sued in this action are the wrong parties. Particularly the 1^st, 4^th – 6^th Defendants/Respondents. Firstly, because there is nothing in the entire claim of the Claimants that established any wrongdoing against the 1^st Defendant and secondly because Section 1 of the UNIVERSITY TEACHING HOSPITALS (RECONSTITUTION OF BOARDS, ETC.) ACT CAP U15, LAWS OF FEDERATION OF NIGERIA 2004, reconstituted the Boards of Management of University Teaching Hospitals specified in the schedule to the Act. He added that by the combined effects of sections 2,5, 7, 8, 9, 11, 14, 15 and 16 of the Act, the Board of management of those Teaching Hospitals who is the corporate entity of the hospitals with legal personality and capacity to sue and be sued on behalf of the Hospital. Counsel cited the case of BAGWAJV. GODA (2011)7 NWLR (PT 1245) P.28 at 57, paras B-D and GREEN V. GREEN (1987) 3 NWLR PT. 61, 480.

Counsel to the 4^th Defendant on his part contended on one hand that “Dr. Aminu M. Muhammed” is not a necessary party to this suit. Counsel submitted that in all of the reliefs being sought by the Claimant in the Amended Originating Summons and most importantly the depositions in all the paragraphs of the affidavit in support of the originating summons, it clearly shows that the Claimants have no issue against the 4^th Defendant, hence, the 4^th Defendant ought not to have been joined in this suit and it would only be fair and just that the name of the 4^th Defendant be struck out from this suit. Counsel cited the cases of Nwankwo V. Ononoze-Madu (2009) 1 NWLR (PT 1123), 671 at 677 and ONUEKWUSI V. R.I.C.M.Z.C. (2011) 6 NWLR (PT 1243) pages 341.

Counsel on the other hand contended that only natural persons, that is, human beings and juristic or artificial person such as body corporate are competent to sue or be sued. He cited the case of Ataguba & CO. V. Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429 at 433. Upon that he submitted that the General Manager, Hospital Management Board, FCT Abuja is not juristic person, it is not created by any statute, either expressly or impliedly, and therefore it cannot sue or be sued in it name whatsoever. He cited the further the case of AGBONMAGBE BANK LTD V. GENERAL MANAGER, G.B. OLLIVANT LTD. (1961) ALL NLR, 116, (1961) 2 SCNLR, 317.

On the part of the 8^th Defendant, their learned counsel submitted that the objector is not a proper party for a just and holistic resolution of the questions submitted to this Honourable court for resolution. Counsel added that the objector (8^th Defendant) is the Chief Medical Director of the Jos University Teaching Hospital, provided for by section 5 of the University Teaching Hospital (Reconstitution of Boards, etc.) Act. He then maintained that the questions for determination are directed at the powers and function of the Board of the various tertiary health institution in Nigeria sued herein while the objector is just a mere personnel and employee of the Jos University Teaching Hospital, and does not have the power of policy formulation and the power to create departments. He concluded that the 8^th Defendant is not a proper party in this suit. he cited the cases of AKINDELE V. ABIODUN (2009) 11 NWLR (Pt. 1152) 356 at 381;

In reaction to the contention of counsel to 1^st Defendant, Learned Counsel to the Claimants simply argued that in a plethora of cases, it is now settled that the Honourable Attorney General is a competent party to be sued in any suit against the Federal Government or any of its agencies. Counsel cited the case of A.G. Rivers State v. A.G Akwa Ibom State (2011) 45 NSCQR at 1201- 1202 (Per B. Rhodes – Vivour, JSC).

Against the contention of the 4^th Defendant, learned counsel to the Claimant contended that contrary to the submissions made on behalf of the 4th Defendant in respect of the capacity in which he is being sued by the Claimants, his capacity is proper and sustainable in this matter.

He submitted further that the 4^th Defendant is sued as a natural person and the position that he occupies is well explained viz-a-viz the subject matter of this case. He added that the expression, “General Manager, F.C.D.A. Hospitals Management Board, Abuja”, is a mere description of the position being occupied by the 4^th Defendant.

He concluded that all the authorities cited by the learned Counsel to the Defendant are not relevant to the issues raised in this application. In reaction to the 8^th Defendant, Counsel to the Claimant contended that that having regard to the totality of the evidence placed before this court in this matter, the 8^th defendant herein is a necessary party to the subject matter of this case as the Claimants have clearly explained the position being occupied by the 8^th defendant at the working place of some of them in Jos University Teaching Hospital. He added that at the end of the day, if the claimants should succeed in this action, the 8^th defendant will definitely have a role to play in reaping the fruits of such judgment.

In addressing this issue, I reckon the holding of the court in ABUBAKAR DUDU MOTORS & ANOR v.KACHIA (2016) LPELR-40228(CA) where the court described the various types of parties to a suit and held thus:

“…who is a proper, or desirable or necessary party who ought to be joined for the effective and effectual determination of a dispute in a case or suit. In Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that, proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. Green v. Green (1987) 3 NWLR (Pt. 61) 480. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom, the whole claim cannot be effectually and completely determined. “Per BDLIYA, J.C.A. (Pp. 10-11).

In the light of the above holding, I have taken a look at the originating summons and the supporting affidavit and found that the 1^st Defendant is the Attorney-General of the Federation, the 4^th Defendant is Dr. Aminu M. Muhammed, General Manager, F.C.D.A. Hospital Management Board, FCT Abuja while the 8^th Defendant is Chief Medical Director, Jos University Teaching Hospital (JUTH). There is no gainsaying that the Attorney-General of the Federation as 1^st Defendant is the Chief Law Officer of the Federation as provided in section 150 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). He is a nominal party who Per Ogbuagu, JSC in Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378 at P. 426. paras. A-B, said to be a party in name only, and not in reality, or existing in name only. This in essence means there need not be any act committed against the 1^st Defendant before he is made a party to a suit. considering the questions before this court relating to matters affecting federal laws which affects the industrial relation of the Claimants, I find that the 1^st Defendant is proper for the determination of this suit.

With respect to the 4^th Defendant, I find it inconsistent for the counsel to the 4^th Defendant to have separated the natural name, which comes along the ‘General Manager, F.C.D.A. Hospital Management Board, FCT Abuja’ to make the 4^th Defendant. He then argued first against the natural person not being a proper party and then against the suit being against ‘General Manager, F.C.D.A. Hospital Management Board’, FCT Abuja. Upon the finding that the 4^th Defendant is ‘Dr. Aminu M. Muhammed, General Manager, F.C.D.A. Hospital Management Board, FCT Abuja.´I discountenance all the arguments relating to suit being against General Manager, F.C.D.A. Hospital Management Board, FCT Abuja upon the consideration that the 4th Defendant is sued as a natural person and therefore has requisite capacity of being sued. Also, the authority of AGBONMAGBE BANK LTD V. GENERAL MANAGER, G.B. OLLIVANT LTD. (1961) ALL NLR, 116, (1961) 2 SCNLR, 317 cited by the counsel to 4^th Defendant in this regard is of no relevance in this instance.

Furthermore, with respect to the 4^th Defendant, being the General Manager, F.C.D.A. Hospital Management Board, FCT Abuja, I find that by paragraph 36 of the affidavit in support of the Originating summons, this suit was according to the Claimant, necessitated upon the failure by the Defendants to address the re-current feud affecting the Claimants’ members in heading Radiography Department Units, leading to continuous trade disputes and discrimination in all Hospital Management in Nigeria for the past few years within the knowledge of the 2^nd — 11^th Defendants.

Considering the above fact, there is a good reason for the 4^th Defendant being the General Manager of one of such Hospital Management in Nigeria to remain as a proper party for the determination of this suit. The 8^th Defendant, is also caught by the deposition in paragraph 36 of the affidavit in support of the originating summons and I therefore hold in view of the above authority and finding that the 8^th Defendant is also a proper party to this suit.

I therefore resolve this issue against the 1^st, 4^th and 8^th defendant to the effect that the 1^st, 4^th and 8^th Defendants are proper parties upon a consideration of the circumstances of this suit.

I therefore turn to issue four, which is “Whether or not the suit as presently constituted is within the substantive jurisdiction of this honourable court”.

In arguing this issue, learned Counsel to the 8^th Defendant contended that the claim of the claimants, being rooted in the administrative and organizational structure of all the Tertiary Health Institutions in Nigeria, does not fall within the enumerated jurisdiction of the National Industrial Court of Nigeria. He posited that the jurisdiction of the National Industrial Court of Nigeria, is enumerated and specific. Therefore, any suit brought before the Court between employees and their employers, must be one in respect of the items or issues outlined and enumerated in section 254C (a)-(m) of the Constitution of the Federal Republic of Nigeria, 1999, (Third Alteration Act), 2010 and Section 7 of the National Industrial Court Act, 2006.

Learned counsel cited the provisions of section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended) and submitted that matters bordering on the organizational structure of an institution are far flung from these enumerated issues and therefore, fall outside the enumerated and limited jurisdiction of the National Industrial Court of Nigeria. Counsel cited the case of GEN. MOHAMMED A. GARBA (RTD) V. MUSTAPHA SANI MOHAMMED & 2 ORS. (2016) 16 NWLR (Pt. 1537) 114 at 155.

By way of response, Learned Counsel to the Claimant argued that the case of Senior Staff Association of Nigeria Teaching Hospitals Research Institutes and Associated Institutions (SSAUTHRIAI) & 2Ors V. Dr Sunday Osasu Olotu (2016) 12 NWLR (Pt.1531) 8, cited by counsel to the 8^th Defendant is totally different from the present case as it was predicated on enforcement of fundamental human rights where the reliefs include injunction and monetary claims. He maintained that in this instance, the Claimants’ case is labour related and within the jurisdiction of the Honourable Court.

In resolving this issue, I should reiterate again that the process that determines if the court is seised with jurisdiction is the processes filed by the Claimants which are the Originating Summons and affidavit in support. See NKWONTA V. NIGERIAN GAS COY LTD & ORS (supra).

Arising therefrom, I foremost take a keen look at the reliefs sought by the Claimants upon the need to ascertain whether they come within the substantive jurisdiction of this court and in that light, I find that same requires a reproduction here. The reliefs are:

A declaration that the Radiographers Registration Board of Nigeria (RRBN) is the Sole Statutory body established by law to regulate the practice of Radiography or Science of the application of various form of radiant energies which includes X-ray Imaging, Radionuclide Imaging, Ultrasonic Imaging (Ultrasound), Thermographic Imaging and Magnetic Resonance Imaging etc.
A declaration that only professionally trained Radiographers that are regulated and or subjected to the Radiographers Registration Board of Nigeria (RRBN) and who are qualified as Radiographers within the meaning and intendment of sections 28 (1), (a), (13), (c) and (d) of the Radiographers (Registration, etc.) Act Cap R1 2004 LFN. can practice any or all the various aspects of radiography which include that (sic) art and science of the application of various forms of radiant energies in human beings in Nigeria.
A declaration that Radiologists of whatever grade, who are not registered as Radiographers/Medical Imaging Scientists, are not entitled to practice the Radiography profession in any manner whatsoever.
An order directing the Defendants to immediately create a Radiography/Medical Imaging Science Department under the leadership of a qualified Radiographer, licensed by the Radiographers Registration Board of Nigeria, in all Tertiary Health Sectors in Nigeria and in accordance with the extant Laws/Acts Rules, Circulars and Scheme of Service for all administrative or management purposes.
An injunction restraining the Defendants and their agents and privies who are not subject to the regulations of the sole statutory Regulatory Body of the Radiographers Registration Board of Nigeria (RRBN) from eroding or undermining the professional autonomy of the claimants’ practice or claiming to represent or to hold themselves in any position or to assume any such position reserved for the claimants and their members by using any title or nomenclature which otherwise interferes in the performance and discharge of the functions of the claimant as Radiographers or Medical Imaging Scientists.
An order directing the Defendants to immediately recognize the existing Medical Radiography/Imaging Sciences Department and Federal Government approved Scheme of Service and put it into full operation for all members of the Claimants’ Association in accordance with the extant Laws/Acts, Rules, Circulars and Scheme of Service aforementioned and for all administrative purposes in all Tertiary Health Institutions in Nigeria.

Upon a careful review of the reliefs, I find that reliefs 1 – 3 are declaratory. They are to merely determine the legal status of the Claimants in relation to the determination of their professional status upon the interpretation of the Radiographers (Registration, etc.) Act Cap R1 LFN 2004 and also to determine who can practice as radiographers. In addition, the court is to declare the body established by law to regulate the practice of radiography in Nigeria. Reliefs 3 – 6 on the other hand, can be summarised into two, the first is that the Claimants wants an order of the court to restrain any person who is not qualified to practice the profession of radiography from doing so or from holding a position reserved for radiographers. The second, is an order directing the immediate creation of a Radiography/Medical Imaging Science Department under the leadership of a qualified Radiographer, licensed by the Radiographers Registration Board of Nigeria, in all Tertiary Health Sectors in Nigeria and also to recognize such existing department.

While the above are the reliefs, I further took a look at the affidavit in support of the originating summons and found certain facts important with regards to the issue of jurisdiction of this court. The deponent in paragraph 20 and 21 stated:

20.That the Defendants and hospital Authorities have a major role to play in determining which officer should assume the leadership of Radiography or Medical Imaging Science Department/Unit in all Tertiary Health Institutions where the practice of the science of the application of various form of radiant energies exists in Nigeria to the exclusion of the Radiologists and any other Medical Practitioners who are regulated by the Medical and Dental Council of Nigeria.

21 .That in exercising such administrative power, the Defendants for reasons best known to them, had always posted Radiologists to head Radiography Department/Unit thereby subjecting Radiographers under the supervision of personnel from a different profession.

The above paragraphs contextually suggests that the suit before this court is intended to resolve a leadership tussle in the Tertiary Health Institutions in Nigeria.

Sequel to the above facts, the deponents stated further facts that resulted from the posting of radiologists to head radiography Department/Unit by stating:

22.That Radiographers have been restricted to explore their full potentials in the profession because they are being denied access to use certain Radiography equipment’s.

23.That the practice of Medical Radiography/Imaging Sciences as a distinct profession in the health Sector is well defined in the Radiographers (Registration, etc.) Act Cap R1 LFN 2004.

24.That the practice of Medicine by the Medical Doctors (and Radiologists) is well defined in the Medical and Dental Practitioner Act, Cap M8, 2004, LFN.

25.That the Medical Imaging Scientists or Radiographers have their own distinct training and approved Scheme of Service in contradistinction to the Medical and Dental Practitioners (and Radiologists) and other Health Professionals in the Public Health Sector in Nigeria.

Arising from the above facts, I find that whatever discord that occurred between the radiographers (who are otherwise called Medical Imaging Scientists) and radiologists sprang from the administration, organizational structure, management and control of the tertiary health institutions (which are otherwise known as Teaching Hospitals) which placed the radiographers under the supervision of the radiologists.

To put these findings into the context of the objection raised by counsel to the 8^th Defendant vis-à-vis the provision of section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended), it is imperative for me to review the provisions of the said section to determine whether matters relating to the administration, organizational structure, management and control of tertiary health institutions where the Claimants find themselves is within the jurisdiction of this court. Section 254C (1) (a) – (m) provides thus:

Notwithstanding the provisions of section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matter-

relating to or connected with any labour, employment, trade unions, industrial relations and matters rising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected there with;
relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto;
relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;

f relating to or connected with unfair labour practice or international best practices in labour employment and industrial relation matters;

relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
relating to, connected with or pertaining to the application or interpretation of international labour standards;
connected therewith or related to child labour, child abuse, human trafficking or any, matter connected therewith or related thereto;
relating to the determination of any question as to the interpretation and application of any

(i) collective agreement;

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

(iii) award or judgment of the Court;

(iv) term of settlement of any trade dispute;

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

(vi) trade union constitution of an association of employers any association relating to employment, labour, industrial relations or work place;

(vii) dispute relating to or connected with any personal matter arising from any free trade zone in the Federation or any part thereof;

relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
relating to-

(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;

(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour trade unions or industrial relations; and

(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;

relating to or connected with the registration of collective agreements.

A careful look at the each paragraph shows convincingly that there is no express provision for matters relating to the administration, organizational structure, management and control of an institution particularly ones that are under the management and control of the Federal government such as the tertiary health institutions, an instance of which is the institution managed by the 8^th Defendant in this case.

I reckon that there are situations where the lines may be blurred in terms of jurisdiction between superior courts. Such was the case cited by the Counsel to the 8^th Defendant. i.e. the case of SENIOR STAFF ASSOCIATION OF UNIVERSITY TEACHING HOSPITALS RESEARCH INSTITUTES AND ASSOCIATED INSTITUTIONS (SSAUTHRIAI) & 2 ORS. V. DR. SUNDAY OSASU OLOTU (2016) 12 NWLR (Pt.1531) 8 which counsel himself admitted is a suit related to enforcement of fundamental right.

Upon the absence of the express provision in section 254C (1) (a) – (m), the question that arises is whether the need for creation of a department is incidental to matters that this court can deal with in view of section 254C (1) (a). In the case of Moses & Ors v FFS & Ors ((2013) 34 NLLR (Pt.100) at 415, the court held that it is the nature of an act done and its effect that shows whether it is connected with or related to labour or employment. Per Adejumo. PNICN See also Obiuweubi v CBN (2011) LPELR – 2185.

In the instant case, has the alleged failure of the employers of the Claimants to create a department of radiography affected the employment of the Claimants in their respective tertiary Health Institutions? The answer to the above lies in paragraphs 21 and 22 of the affidavit in support of the originating summons captured above in that the Claimants are not allowed to use certain equipment and that they are under the supervision of persons other than Radiographers. such workplace dispute therefore is an effect which brings the issue within a matter relating to labour and employment and therefore confers jurisdiction on this court to entertain same.

Consequently, I resolve this issue against the 8^th Defendant to the effect that this suit as presently constituted is within the substantive jurisdiction of this honourable court.

With regards to issue five which is “Whether or not the suit of the Claimant as presently constituted is premature”. In arguing this issue, the learned counsel to the 8^th Defendant submitted that the claimants have woefully failed to comply with the provisions of the Public Service Rules and the Conditions of Service governing their employment in resolving the dispute relating to their employment. He added that the Public Service Rules and the Conditions of Service have laid down the procedure through which an employee can channel his grievances internally before having recourse to litigation. Counsel cited Section 6 of the Public Service Rules and section 142 of the 8^th Defendant’s Conditions of Service to contend that the Public Service Rules and the Conditions of Service are rules that bind the claimants in this suit. he cited the cases of ASOGWA V. CHUKWU (2003) 4 NWLR (Pt. 811) 540 at 589, Paras. H-C; ATOLAGBE V. AWUNI (1997) 9 NWLR (Pt. 522) 536 at 562 and YAKI V. BAGUDU (2015) 18 NWLR (Pt. 1491) 288 at 348, paras. F-G.

In reaction to the contention, learned Counsel to the Claimants contended that in view of the peculiar facts of this case and having regard to the rights conferred on the Claimants by the 1999 Constitution of the Federal Republic of Nigeria (as amended), the submissions made in respect of the above issue by counsel to the 8^th Defendant are untenable. He added that it is now settled in a plethora of cases decided by the Supreme Court that access to the courts is a constitutional right of all citizens and this cannot be curtailed or whittled down by any inferior law, rules or regulations. He cited the case of Ugba v. Suswan (2014) 14 NWLR (PT.1427)264 at 345. and section 36 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended).

Without having to dissipate energy in addressing this issue, I take into account of the holding of the court in Agih v Principal, Federal Government Girls College, Kabba (2013) 34 NLLR (Pt.100) at 439 where the court stated clearly that:

“Where a statute prescribes an internal procedure of settlement of dispute, an aggrieved party reserves the right to commence an action in the high court before exhausting the internal procedure pursuant to section 6 (6) and 236 of the 1979 Constitution. In the instant case, the Claimant in this case is within the confines of the law by deciding to come to court without having to invoke the internal dispute resolution process…” see Western Steel Works Ltd. & Anor v, Iron and Steel Workers Union of Nigeria (1989) 2 SCNJ 1 at 13. See also Fatuga v University of Ibadan (2003) 13 NWLR (Pt.683) Pg. 118 at 112

Consequent upon the above authority, I find in favour of the Claimants that by virtue of section 6 (6) of the 1999 Constitution of Federal Republic of Nigeria 1999 (as amended), the Claimants have a right without restriction to approach the court and the suit is not premature having not exhausted the internal process of resolution of their grievance.

Issue six is “whether or not the suit of the Claimant can be entertained because it seeks to compel the exercise of an administrative/discretionary power and function”. In arguing this issue, Counsel to the 8^th Defendant contended that this suit and the reliefs claimed therein are in the realm of a Mandamus compelling the claimants and the objector to do an administrative act which they have the discretion to do. Counsel cited Section 7 University Teaching Hospital (Reconstitution of Boards, etc.) Act and the cases of CHIEF GANI FAWEHINMI V. INSPECTOR-GENERAL OF POLICE & 2 ORS. (2002) 606 at 694-695 and ALHAJI SANI DODODO V. ECONOMIC & FINANCIAL CRIMES COMMISSION (E.F.C.C.) & 3 ORS. (2013) 468 at 505-506.

In reaction to the contention, counsel to the Claimants submitted that the relevant law upon which the Claimants approached the court is well known to the Parties and that it is now enjoined that all government agencies are to obey and implement laws enacted by the state for stability and career progression in the public service. He added that both the law and scheme of service applicable to the Claimants’ profession were never made for fun!

Considering the above contentions and the arguments made by the counsel to the 8^th Defendant, I find that the arguments and the resolution of this issue touches on the substantive suit and its resolution would touch on the reliefs sought one way or the other. The court is precluded at this stage from making pronouncements which may prejudice the trial of the claims filed and still pending before the court. See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 at 301. See also Adamu v. A.-G., Nasarawa State [2007] 6 NWLR (Pt.1031).

Consequently, all arguments in regards to this issue is discountenanced and considering the resolution of issue five that this suit falls within the jurisdiction of this court, I resolve this issue in favour of the Claimants that the suit of the Claimant can be entertained not minding that it seeks to compel the exercise of an administrative/discretionary power and function.

With regards to issue seven, which is “whether or not the suit of the Claimant as presently constituted is statute barred”, learned counsel to the 8^th Defendant contended that by virtue of the provision of section 2(a) of the Public Officers Protection Act, any action to be instituted against a public officer has to be instituted within a period of three months from the accrual of the cause of action. He maintained that the 8^th Defendant is a public officer upon the holding of the court in KWARA STATE V. DADA (2011) 14 NWLR (Pt. 1267) 384 at 412-413. Counsel also cited the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 SC.

Learned counsel also cited the case of Fadare & ors. V. Att. Gen. of Oyo State (1982) NSCC52 52 at 60 to submit that time to institute a suit begins to run when there is in existence a person who can sue and another who can be sued, and when all facts have happened which are material to be proved to entitle the plaintiff to succeed. He submitted that the cause of action in this suit arose sometime in 2015, when the reviewed Scheme of Service for the Radiographer cadre was duly communicated to all agencies of the Federal Government of Nigeria, including the objector while the suit was filed sometime in 2016. Counsel cited the case of EGBE V. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1 at 21, para. C. and submitted that this action, having been filed outside the prescribed statutory period of three months, is statute barred.

In reaction, Counsel to the Claimant simply posited that it is on record that this action was originally commenced as Suit No: NICN/ABJ/401/2015 which was later discontinued on 17^th September, 2016, before the President of this Court, Hon. Justice B.A. Adejumo. He maintained that the present suit is a continuation of Suit No: NICN/ABJ/401/2015, which the Honourable Court merely struck out on 17th September, 2016, due to a Notice of discontinuance filed on 15th September, 2016 by the claimants herein hence, the suit is not statute barred.

In resolving this issue, I must first reckon that the 8^th Defendant is a public officer within the meaning and scope of section 18 of the Interpretation Act, Cap 123 LFN, 2004 which defines public officer as:

A member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public service of a state. See the case of INEC & ORS V. ORJI & ORS (2009) LPELR-4320(CA); REGISTERED TRUSTEE PPFN V. SHOGHOLA (2004) 11 NWLR (Pt.883) 1 at 20 para C-E and GOV, KWARA STATE V. DADA (2011) 14 NWLR (Pt. 1267) 384 at 412-413.

Consequently, there is no gainsaying that section 2 of Public officers Protection Act which I have taken adequate view of, applies to the 8^th Defendant.

The question is whether the 8^th Defendant is protected from prosecution with respect to this suit? before answering this question, I should state clearly that the argument of Counsel to the Claimant that this suit is a continuation of earlier discontinued suit is misconceived. This is because, when a suit is discontinued, the effect is that same is terminated. In the case of MABAMIJE v. OTTO (2016) LPELR-26058(SC) the court held that:

“A notice of discontinuance is a voluntary termination of a suit by the Plaintiff or complainant. When issues that gave rise to a suit are no longer in dispute, that is to say parties have settled. Terms of settlement are filed in Court to bring the suit to an end. A Notice of discontinuance may in certain circumstances have the same effect as terms of settlement.” Per RHODES-VIVOUR, J.S.C. (Pp. 19-20, Paras. F-A.

Consequent upon the above, the contention of the Counsel to the Claimant holds no water in respect of whether the suit is statute barred as the present suit is clearly a fresh suit and not a continuation of that which was discontinued. That notwithstanding, this court is guided by certain yardsticks in determining whether a suit is statute barred. The court laid down the yardsticks in AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 when the court noted authoritatively that the yardsticks for determining whether an action is statute barred are:

The date when the cause of action accrued;
The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
The period of time prescribed to bring an action to be ascertained from the statute in question.

Having found that this suit is a fresh suit, in applying the yardsticks above, I find that this suit was originally instituted on the 15^th of February, 2016 as evidenced by the stamp of this court. Having found the date the suit was instituted, I then proceed to find out what the cause of action is and when same arose. A cause of action has been restated in a plethora of authorities. In OANDO PLC v. AJAIGBE & ORS (2015) LPELR-24816(CA) the court held that:

“From the authorities on the subject, “cause of action” means –

(a) A cause of complaint;

(b) A civil right or obligation for determination by a Court of law;

(d) Consequent damages;

(e) Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the Judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;

(f) All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person; and

(g) It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of Injury.

Going by the above, Counsel to the 8^th Defendant did not specifically state what he perceived to be the cause of action. He however submitted that as from the date the claimant brought the reviewed Scheme of Service for Radiographer Cadre to the notice of the objector, the time within which the claimant should have filed this action started to run. The reviewed scheme of service is dated the 18^th of June, 2018. However, I disagree that the bringing to the notice of the 8^th Defendant, of the said reviewed scheme on its own generated a cause of action

I have taken adequate look at the questions for determination as captured on the originating summons and the fact deposed in the accompanying affidavit. I find that the cause of action is the complaint about the radiographers being supervised by the Radiologists and the quest by the Claimants who are radiographers to have their department created for them in view of the reviewed scheme of service which reflects their cadre.

Has this cause of action then been caught up by section 2 of Public officers Protection Act, the answer lies in the said section which provides that:

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

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

In view of paragraph (a) above, the demand for the creation of a department which continues to generate a source of complaint for the Claimants and the supervision of the Claimants by radiologists can both be regarded as a continuing damage which untill it ceases, the three months limitation period would not begin to run. The courts have reckoned the continuance of damage as an exception to the application of section 2 of Public Officers Protection Act. See the case of A.G. RIVERS STATE v A.G. BAYELSA STATE (2013) AFWLR (Pt. 699) 1087 at 1106 where the court noted to the effect that continuance of damage brings about a fresh cause of action from time to time as often as the damage is caused.

Consequent upon the above, issue seven is resolved in favour of the Claimants and against the 8^th Defendants that the suit of the Claimants as constituted is not statute barred upon which this court in not robbed of jurisdiction to entertain same.

With regards to issue eight, which is “whether or not the originating process filed by the Claimants in this suit is competent”, the learned counsel to the 8^th Defendant argued that the originating summons filed by the Claimants is improperly issued and signed. Learned counsel referred this court to the provisions of Order 4 rule 4 (3) of the Rules of this Honourable Court, which provides to the effect that an originating process shall be signed by the Claimant or Counsel where the Claimant sues through a Counsel. Counsel cited authorities including PDP V. EKEAGBARA & ORS (2016) LPELR-40849(CA), where the court stated that an originating summons or statement of claim must be signed by an identified legal practitioner. He also cited SLB CONSORTIUM V. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337-338; paras. H-A where the court explained how court processes are to be signed. He further contended that the the case of PROFESSOR. ISAWA ELAIGWU V. CYRIL GYANG TONG & ANOR (2016) 14 NWLR (Pt. 1532) 165 at 186 & 187 is identical with the instant one as the originating summons was issued and signed as follows:

“This summons was taken out by K.0. IJATUYl & CO, legal Practitioners for the above named Claimants”.

Counsel then concluded by relying on the above cited authorities and urged this Court to find that the Originating Summons, having been signed and issued by the law firm of K. 0. IJATUYI & CO, is fundamentally defective, incompetent and liable to be struck out. The effect of this, he submitted, is that the suit before this Honourable Court was commenced without due process of law. Counsel also relied on MADUKOLU & ORS. V. NKEMDELIM & ORS. (1962) 2 S.C.N.L.R. 341, and NWORA & ORS v. NWABUEZE & ORS. (2013) LPELR-20587 (SC).

By way of response, learned counsel to the Claimant submitted that a simple perusal of the originating summons clearly show that it was signed by a legal practitioner duly called to the Nigerian Bar, in this case, K.O Ijatuyi Esq duly signed on top of K.O. IJATUYI & CO with his Stamp and Seal. He added that all the authorities cited in support of this issue are not relevant to the peculiar facts of this case. And that it is a mere technical issue raised to prevent the Honourable Court from doing substantial justice in this matter. He maintained that it is now very elementary that stamp and seals are only issued to Legal Practitioners duly called to the Bar in Nigeria.

Counsel cited the case of Williams v. Adold/Stamm Int’l (Nig.) Ltd (2017) 6 NWLR (PT.1560) I at 8 Ratio 5 parags F-B. to contend that that a process prepared and filed in court by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above his/or firm in which he carries out his practice.

In resolving this issue I have taken a look at the amended originating summons filed on the 12^th of February, 2018 and I have also taken a review of the case of PROFESSOR. ISAWA ELAIGWU V. CYRIL GYANG TONG & ANOR (2016) 14 NWLR (Pt. 1532) 165 at 186 & 187 and I find that the suit is on all fours with the instant suit.

Before stating the findings of this court from the said amended originating summons and determining whether same is defective, I should state that there are two legs to this issue. The first is who can sign the originating process? and the second leg is who can issue or take out the process?. Separating the two legs is important in the face of the mix up in the available authorities on this issue and the argument of Counsel to the Claimant.

With regards to the first leg, I should state that the courts have restated the position of the law that an originating process must be signed by a legal practitioner and not a law firm as held in OKAFOR VS. NWEKE (2007) 5 SCM 180. The sacrosanct authority was predicated on the provision of section 2 (1) and 24 of the Legal Practitioner’s Act which provides that:

Section 2 (1)

“subject to the provisions of this Act, a person shall be entitle to practice as a Barrister and Solicitor if, and only if, his name is on the call roll”

Section 24

“In this Act, unless the context otherwise requires, the following expressions have the meaning hereby assigned to them respectively that is to say -legal practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”

The requirement of a process being signed by a legal practitioner through whom a suit is initiated is also captured under Order 4 Rule 4 (3) of the Rules of this Honourable Court, 2017 which provides that:

“An originating process shall be signed by the Claimant or Counsel where the Claimant sues through a Counsel”.

In the case of IWUNZE & ORS v. OKENWA & ANOR (2015) LPELR-24905(CA) the court held that:

“The decision of the apex court in Okafor V. Nweke has thus been cast in Iron. See further the following cases which also show that Okafor V. Nweke remains sacrosanct. See:

ALHAJI FATAI AYODELE ALAWIYE VS. MRS. ELEZABETH ADETOKUNBO OGUNSANYA (2013) 5 NWLR (PART 1348) 570 at 611 B – H per CHUKWUMA-ENEH JSC.
DR. TUNJI BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PART 1346) 1 at 16 B – F per MUHAMMAD, JSC.
MIN. OF WORKS & TRANSPORT ADAMAWA & ORS. VS. ALH, ISIYAKU YAKUBU ENT. LTD. (2013) 3 SCM 62 at 72 – 73 per COMMASSIE, JSC

AND

AARON OKARIKA & ORS. VS. ISIAH SAMUEL (2013) 7 NWLR (PART 1352) 19 at 34 G – H 37 per I. T. MUHAMMAD, JSC.

The authorities are all speaking with one voice that an initiating process, whether Writ of Summons, Originating Summons or a Notice of Appeal and other Court processes not signed by a Legal Practitioner whose name is on the Roll will be a nullity. Such process cannot confer jurisdiction on the Court and no validity will be accorded such process unless signed by a Legal Practitioner in accordance with Section 2(1) and 24 of the Legal Practitioner Act, Cap L11, Laws of the Federation of Nigeria, 2004” Per IGE, J.C.A. (Pp. 27-39, paras. B-G).

In view of the above authorities, I find that the amended Originating Summons on page 5 bears a signature which is immediately followed by the name K.O. Ijatuyi ESQ after which the name of the firm, K.O. Ijatuyi & Co and then the address and phone number of same is provided.

In this instance, there is no ambiguity as to the fact that the person who signed the originating process is K.O. Ijatuyi ESQ, a natural person and a legal practitioner and not the firm. The finding is fortified in view of the NBA seal appended to the process bearing the name Ijatuyi Kasali Olawale represents the name of the legal practitioner.

The above mode of signing to a large extent meet the steps explained by the court on how court processes are to be signed in the case of SLB CONSORTIUM V. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337-338; paras. H-A, that: “all processes filed in court are to be signed as follows:

First: the signature of counsel, which may be any contraption.

Secondly: the name of counsel clearly

Thirdly: who counsel represents.

Fourthly: name and address of legal firm.”

The shortfall in the instant case is that third step was omitted for failure to state who counsel represents. However, since the focus is on signature and the name of the legal practitioner as distinct from the firm, this can be treated as sufficient compliance.

Therefore, the process meets the requirement of this first leg.

The second leg which has to do with the issuance of the originating summons is in view of this court more pivotal than the first leg. This is because, the issuance of the originating summons is the initiation of the suit itself, without the initiation, there will be nothing for the legal practitioner to sign.

For avoidance of doubt, the originating summons is an originating process for the commencement of an action before this court as provided under Order 3 Rule 1 (1) (b). in resolving this second leg, the authorities are clear on the position that the originating process which would be signed by the legal practitioner has to be initiated by a Claimant himself or his counsel i.e. legal practitioner, rather than a law firm.

The distinction between the legal practitioner and a law firm lies in the fact that a law firm is not a legal entity. The court in NWACHUKWU v. EKPIKEN (2014) LPELR-24263(CA) held that:

“In MINISTRY OF WORKS AND TRANSPORT v. YAKUBU & ANOR 53.2 NSCQR 1 the Supreme Court held that there was a difference between the name of a firm and a Legal Practitioner, and that a Law Firm cannot perform the duty of a Legal Practitioner, since they both carry different Legal entities and one cannot be substituted for the other because they are not synonymous.”

In the case of PROFESSOR. ISAWA ELAIGWU V. CYRIL GYANG TONG & ANOR (2016) 14 NWLR (Pt. 1532) 165 at 186 & 187 the second leg of this issue was addressed when the court noted that:

“On page 28 of the record of appeal, this is what has been stated on the writ of summons commencing suit No. PLD/J/207/2007:

This writ is issued by O.J. Ochigbo & Co. whose address for service is No. 32 Church, Jos, Plateau State, and Legal Practitioner to the plaintiff who resides in Jos.

O.J. Ochigbo & Co. is a law Firm, not a legal practitioner as defined by section 2 (1) of the Legal Practitioners Act. In SLB Consortium v. NNPC (supra) p. 337 the court held that a firm of Solicitors is not competent to sign a process. In that case, “Adewale Adesokan & Co.” which signed the originating summons is not a legal practitioner known to the Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990. This is so since it is not a person entitled to practice as a Barrister and Solicitor, with its name on the roll. The signature of “Adewale Adesokan & Co” on the originating summons of the appellant robbed the process of competence ab initio as the said firm is not registered as a legal practitioner enrolled to practice law as a Barrister and Solicitor in the Supreme Court. In the prevailing circumstances all the proceedings which rested on the inchoate originating summons were deemed not to have taken place in law. Also in F.R.N. v. Maiwade (2013) 5 NWLR (Pt. 1348) p. 444 at’ 506, it has been held that a court process signed in the name of a Law firm without indicating the name of the particular legal practitioner who issued and signed the process is incompetent and liable to be struck out.” Per Bdliya JCA. at p187. (underline mine).

In the instant case, on the same page 5 of the amended Originating summons, immediately after the signature and name, address and phone number of counsel to the Claimants, the endorsement of the issuance of the originating summons in question as a means of commencing this suit reads:

“This summons was taken out by K 0. IJATUYl & CO, legal Practitioners for the above named Claimants. The Defendants may appear hereunto by entering appearance personally or by a legal practitioner either by filing the appropriate processes in response at the Registry of the Court where the summons was issued or by sending them to that office by any of the methods allowed by these rules.

Note: If the Defendants does (sic-do) not respond within the time at the place above mentioned, such orders will be made and proceedings may be taken as the judge may think just and expedient.” (underline mine).

The underlined word ‘taken out’ is in other words ‘to issue’ and means, in this context, to initiate a proceeding. In the light of the above authorities, the law firm, “K.O. Ijatuyi & Co.” being a mere business name does not possess the legal capacity to ‘take out’, ‘issue’ or initiate a proceeding as a barrister or barrister and solicitor who is called to the Nigerian Bar in line with the combined effect of section 2 (1) and section 24 of the Legal Practitioners’ Act. Consequently, issue eight, particularly the second leg, is resolved in favour of the 8^th Defendant that the amended originating summon is defective and ‘incompetent’ to use the exact words of the court in Okafor v Nweke (Supra) same having been issued by a law firm, K.O. Ijatuyi & Co. rather than a legal practitioner.

What then is the effect of the defect and resultant incompetency of the Originating summons? The court in PROFESSOR. ISAWA ELAIGWU V. CYRIL GYANG TONG & ANOR (supra) Per Bdliya authoritatively held that where an originating process is incompetent, null and void, a court of law would have no jurisdiction to hear and determine any suit or action so commenced. In that case, the Court of Appeal set aside the judgment delivered by the trial court predicated on the incompetent process.

The effect of the above on this suit is that, this court is bound to follow the precedent laid down by the Court of Appeal and the Supreme Court on this issue for any judgment made by this court in respect of the substantive suit would by all means be set aside and be rendered a nullity if predicated on the said incompetent process which has robbed this court of jurisdiction.

In the case of Shelim & Anor. v. Gobang (2009) All FWLR (Pt. 1866) at 1877 paras. A-G the court held that:

“It is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire of any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity.” per Fabiyi, J.S.C.

The issue of law firm issuing and signing a court process rendering it incompetent may seem to be a technical issue and hampering the need to do substantial justice but it is one which has gained a rooted stand in the legal practice in Nigeria considering how much review the Supreme Court had put into it.

In one of such reviews, the court in IWUNZE & ORS v. OKENWA & ANOR (2015) LPELR-24905(CA) restated the holding of the Supreme Court in ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANOR. VS. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR – 24302 (SC) 1 AT 17 – 18 where GALADIMA, JSC firmly said:

“I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to correct the current embarrassing trend in Legal documents, particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some Legal Practitioners. Legal Practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds are those not so trained always learn from our example. We therefore owe the Legal Profession duty to maintain the very high standards required in the practice of the profession in this country. The Law exists as a guide for actions needed for the practice of Law, not to be twisted and turned to serve whatever purpose legitimate or otherwise which can only best result in embarrassing the profession if encouraged”.

That said, upon the court lacking jurisdiction to proceed to the substance of the suit owing to the incompetence of the originating process, the position of the law is that where the court finds that it lacks jurisdiction to hear and determine a suit, the proper order the court should make is an order striking out the matter. See W.A.E.C v. Adeyanju (2008) 9 NWLR (Pt.1092) 270 at 296, paras. C-D (SC).

In the final analysis, I find the preliminary objections of the 1^st, 4^th, 7^th, 9^th and 10^th Defendants to be lacking in merit and dismiss same while I find the preliminary objection of the 8^th Defendant on the ground of the originating process being incompetent to be meritorious and same is upheld. Consequently, the suit of the Claimants is hereby struck out for lack of jurisdiction.

Upon the resolution of the preliminary objections, I then turn to the Counter-Claim of the 11^th Defendant. In this regard, there is no gainsaying that a counter-claim survives the main suit whether or not it succeeds. The court in Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, held that:

“It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”.

The court in Susannah (Trawling Vessel) v Abogun (2007) 1 NWLR (Pt.1016)456 at 488 added that: “A withdrawal or failure of the principal action does not necessarily affect or prejudice the existence of the counter-claim and vice-versa”.

Consequently, the counter-claim, despite the striking out of the main suit is worthy of the sequel attention to be accorded to it by this court.

The said counter-claim seeks this court to consider the following issues:

Whether it is not illegal and misconceived to refer to Radiographers as Medical Imaging Scientists.
Whether it is proper for the Defendants and all Radiographers to offer Radiological and/or Radiographical services to the public without the recommendation and indication of a Medical Doctor/Radiologist to the detriment of members of the public.

Upon the resolution of the issues, the counter-Claimant claims against the Defendants the following reliefs:

A DECLARATION that the use of the nomenclature “Medical Imaging Scientist” as referring to Radiographers is misconceived and therefore illegal, null and void and of no consequence.
AN ORDER of the Honourable Court rendering null and void the registration of Radiographers as The Incorporated Trustees of Medical Imaging Society of Nigeria (MISON)
AN ORDER restraining the Defendants from taking any further illegal steps to usurp the position of the Association of Radiographers of Nigeria which negatively affects health care delivery in Nigerian Hospitals.
A DECLARATION that the offering of Radiological/Radiographical services by the Defendants to members of the public without the recommendation and indication of the Radiologist/Medical Doctor of the specific dose of radiant energy is illegal.
AN ORDER restraining the Defendants from illegally engaging in Medical Practice especially in the area of Radiology to reduce health risks to the public.
AN ORDER directing the Defendants especially the 7^thDefendant to remove any sign in their places of business suggesting to the public that they are engaged in providing medical services especially in the specialized area of Radiology.
AN ORDER restraining the Defendants from referring to Radiographers with the nomenclature “Medical Imaging Scientists” as being misleading and misconceived of the true nature and practice of Radiography as defined by Section 28 of the Radiographers (Registration etc,) Act LFN 2004
AN ORDER that anything bearing the nomenclature “Medical Imaging Science” or “Medical Imaging Scientist” purporting to relate to Radiographers be reviewed and/or readjusted to be in tandem with the Radiographers (Registration etc.) Act, LFN 2004.
A DECLARATION that the supervisory role of Medical Doctors/Radiologists over Radiographers is in the overriding interest of the public.

In support of the Counter-claim, the Counter-claimant filed a 32 paragraphs affidavit deposed to by one Doctor Danjem Samuel Moses and a written address.

The Defendants on their part filed a 16 paragraph counter affidavit deposed to by one Chukwu Francis and a written address.

Arising from the written address in support of the Counter-claim, learned counsel to the Counter-claimant, C.O.Okoh, submitted two issues for determination to wit:

Whether it is not illegal and misconceived to refer to Radiographers as Medical Imaging Scientists.
Whether it is proper for the Defendants and all Radiographers to offer Radiological and/or Radiographical services to the public without the recommendation and indication of a Medical Doctor/Radiologist to the detriment of members of the public.

In arguing issue one, learned counsel to the 11^th Defendant, C.O. Okoh referred this court to section 28 of Radiographers (Registration, etc.) Act LFN 2004 on the definition of Radiography and radiographer.

The counsel then contended that use of the nomenclature having surfaced with the publication of the scheme of service ought to be subjected to scrutiny since hospitals were calm, serene and friendly before the emergence of the Scheme of service in 2003 which carved out a section of Radiographers and created a cadre called the “medical imaging scientists” cadre which introduced into hospitals, what is posing as a major threat to health care delivery for those who patronize Nigeria’ health care institutions because the positions as assigned to them by the Head of Service have given them the impetus to seek autonomy in a hospital which from time immemorial had been in peace before now.

Counsel added that the Head of Service Having by exhibit “MDCAN H” conformed with the Act; it only makes sense that others who fashioned their profession after the Scheme of service should also follow suit in order to be in tandem with the law and the current scheme of service by purging themselves of the error too.

Counsel also posited that the head of service having reviewed the use of the nomenclature of Radiographers to be in tune with the enabling law, the court ought to order all the Defendants to identify themselves in accordance with the law and by what they practice before they can claim any right that may accrue to those who are within the ambit of the law.

Furthermore, learned counsel contended that declaring the medical imaging society null and void as an illegal association of Radiographers will be complying with the law which recognizes only one association for Radiographers and urged the court to hold that Radiographers should be called and addressed in their professional capacity as a Radiographer and nothing else.

With regards to issue two, learned counsel reiterated section 28 of the Radiographers (Registration, etc.) Act and contended that by the provision, it is clear that apart from being an integral part of being a Radiographer by virtue of section 7 of the Act, the Radiologist/Medical Doctor may specify medically how the Radiographer should go about his duty based on the clinical report given to him by the clinician, which only a Medical Doctor can apply his medical knowledge to understand and relate with in relation to his special field.

Counsel argued that the application of radiant energies referred to by the law, being applied on human beings raises the question as to whether the level of training of the Radiographers equips them to better understand the human body than or equivalent to a Medical Practitioner as to allow them the latitude to determine what kind of radiant energy or the amount that is best to be applied on human beings. She stated that the answer to this question is not far-fetched as the law took care of it by adding the qualification ‘when medically indicated’ in the provision. This means that the various forms of radiant energies specified in the law can only be applied by a Radiographer on a human body in the manner indicated medically.

She added that the legislature is aware that when it comes to human beings, as far as radiography is concerned, you need a medical cover to do anything in relation to that human being and the person most specialized in such medical dealing with human beings is a Medical Doctor, who would take the clinical information of the human being into consideration when he acts.

She contended that the decision of a Radiographer to carry out his practice of radiography or radiology on human beings based on his own limited knowledge of the interaction of his work and the human body, is to say the least, poses tremendous risk to the public as stated in paragraph 12 and 13 of the counter claimant’s affidavit as the medical doctors will be faced with dealing with the complications that arise as a result of wrong application of radiant energies in various forms.

Counsel maintained that the fact that the Defendants especially the 7^th Defendants runs a business which offers radiological services when they are not radiologists/medical practitioners and registered as such as shown in exhibit “MDCAN A” in blatant disregard for the above law of the Federal Republic of Nigeria is enough reason to show that they are not law abiding citizens.

Counsel concluded by urging the court to see that certain professions cannot just be stand-alone professions and the Defendants profession is one of those which obtains from medicine and exists with it and to grant the reliefs sought by the Counter-claimant.

By way of reaction to the Counter-claim, the learned counsel to the Defendants, K.O. Ijatuyi through the written address in support of the counter affidavit in opposition submitted a sole issue for determination to wit:

“Whether the Counter-Claim is competent having regard to the overall circumstances of this case?”

In arguing the lone issue, counsel contended that the Counter Claimant is an Association of a distinct professional group in the health sector. He added that they are not employers of the Defendants rather they are all out to protect their professional interests only. Also, from the totality of the evidence placed before this court, the Counter Claimant has its own separate legal framework that regulates its members and not that of the Defendants.

Counsel made further submission that this action is an abuse of the court process as it was initiated basically to irritate the Defendants. He added that the interests of the Counter-Claimant are not threatened by the main action filed by the Defendants. Counsel cited the cases Festus Keyamo v Lagos State House of Assembly (2000) 12 NWLR (Pt.680) 196; Ezeribo v I.G.P (2009)11 NWLR (Pt.115) 117 at 134; Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446 and 7up Bottling Co. Ltd v Abiola & Sons Bolling Co. Ltd (2001) 13 NWLR (Pt. 730) 469.

Learned counsel also posited that the Counter Claimant lacks the locus to challenge the scheme of service made by the appropriate government agency for the Defendants as a distinct professional group in the health sector.

Counsel also maintained that the professional names of the Defendants as Radiographers or Medical Imaging Scientists does not deceive the public as they are different faces of the same coin.

Counsel concluded by urging the Honourable court to dismiss the Counter Claims of the Counter-Claimant as same is a gross abuse of the court process.

I have taken a considerate look at the entire processes filed in respect of the counter-claim and I have taken adequate consideration of the arguments of counsel made through their respective written addresses, consequent upon the above and particularly the reliefs sought by the Claimant I am of the considered view that it is pertinent to determine whether this court is vested with jurisdiction to entertain the counter-claim. In other words, whether the counter-claim is within the jurisdiction of this honourable court.

I must state in this wise that this court is capable of raising the issue of jurisdiction suo motu as the court in Nigercare Dev. Co. Ltd v. Adamawa State Water Board & 3 Ors (2008) 2-3 S.C (Pt. II) 202 at 221 held that:

“In Alhaji A. Abubakar, Ors. case (supra), Edozie, JCA., (as he then was), stated inter alia, as follows: The court can on its own initiative raise the question of jurisdiction even though the parties have failed to do so because mere acquiescence does not confer jurisdiction. See Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377, Attorney – General of the Federation v. Sode (1990) 3 S.C (Pt. I) 1; (1990) 1 NWLR (Pt. 128) 500

In addition, the court in INTERCONTINENTAL BANK PLC v. SUNSHINE OIL & CHEMICAL DEVT COMPANY (2014) LPELR-22928(CA) held that:

“It would be a monumental waste of judicial time to deny an applicant a right to appeal at the inception of a suit if such suit could be shown to be fundamentally flawed. A stitch in time could save several months/years of empty adjudication. We are fortified on this in the decision of the Supreme Court per Belgore JSC (AHTW) when my lord held that: “Jurisdiction is the very basis on which any tribunal tries a case; it is the life line of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case. Be it at trial, on appeal to the Court of Appeal or to the Supreme Court, a fortiorari the court can suo motu raise it… It is always in the interest of justice to raise issues of jurisdiction so as to save time and costs and to avoid a trial in nullity.” See Petro Jessica Enterprises Ltd v Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 @ 690.” Per DONGBAN-MENSEM, J.C.A. (P. 10, paras. A-F)

For a court to properly earn jurisdiction to entertain a suit, the court in the case of MAJEOLOGBE v. SOLARIN (2015) LPELR-25588(CA) stated that:

“It is settled that a Court is competent when the Court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and the case before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587; Magaji v. Matari (2000) 5 SC 46; Galadima v. Tambai (2000) 6 SC (Pt.1) 196; Luftansa Airline v. Odiese (2006) 7 NWLR (Pt.978) 39.” Per ONIYANGI, J.C.A. (Pp. 25-26, paras. F-A)

In this regard, it is the subject matter of this suit that is in question whether same is within the jurisdiction of the court. Also, where the issue of jurisdiction is raised, it is the process of the claimant that the court ought to consider. The court in the case of NDIC v. ODIGIE (2012) LPELR-9289(CA) held that:

“It is important to re-iterate the settled and now common-place law that in determining whether a court has the competence or jurisdiction to determine a matter, it is the claim and the facts disclosed in the Statement of Claim of a Plaintiff or a Claimant that has to be looked at. It is neither the evidence nor the Statement of Defence. See ABDULHAMID V. AKAR (2006) All FWLR (PT 321) 1191 at 1204.” Per NWOSU-IHEME (Ph. D), J.C.A (P. 11, paras. E-G)

In this case, it is the counter-claim and the supporting affidavit that is to be considered. In so doing, I take adequate consideration of the questions raised and the claims made through the counter-claim and find that the claims raises issues which includes the appropriate nomenclature with which to refer to the Defendants in the practice of their profession; the issue of the appropriate association or organization to regulate the Defendants between the counter-claimant and 1^st Defendant and also the issue of illegal engagement in medical practice by the Defendant particularly the 7^th Defendant.

I have also, considered the depositions in the affidavit and find that the content of the affidavit points to the above issues particularly considering Exhibit MDCAN A.

In view of the above consideration, I should state that this court is one of such courts with limited jurisdiction. The court in Abdul-Raheem v. Oloruntoba-Oju (2007) WRN (Vol. 2) 28 at 66 Lines 25 – 40 (CA) held that:

“The jurisdiction of a court is sometimes limited especially by the type of subject matter. It is a well settled law that courts are creatures of statute and it is the statute that created a particular court that will also confer on it its jurisdiction. This may be extended, not by the courts, but by the legislature, for it is part of the interpretative functions of the court to expound the jurisdiction of the court but not to expand it. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at page 561; (1989) 20 NSCC (Pt. 111) 225; (1989) ALL NLR 575; (1989) 9 SCNJ 1. … The National Industrial Court has also limited jurisdiction. The Sharia Court of Appeal has limited jurisdiction so also the Customary Court of Appeal. No court should be allowed to starve the other.” Per Muntaka-Coomassie, JCA.

The said limited jurisdiction of this court is found in section 254C (1) (a) – (m) of the Constitution of Federal Republic of Nigeria which has been earlier reproduced in this judgment.

Upon a careful review of the Constitutional provisions, I find that the claims of the counter-claimant arising from the appropriate nomenclature with which to refer to the Defendants in the practice of their profession; the issue of the appropriate association or organization to regulate the Defendants between the counter-claimant and 1^st Defendant and the issue of illegal engagement in medical practice are distant from the substantive and limited jurisdiction of this court. The matters are in no way related to or connected with any labour, employment, trade unions, industrial relations and matters rising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected there with.

To engage in the determination of the issues formulated by party to this counter claim, which is unrelated to the jurisdictional scope of this Court based on section 254C in whatever form would be a monumental waste of time. see INTERCONTINENTAL BANK PLC v. SUNSHINE OIL & CHEMICAL DEVT COMPANY (Supra).

Although I reckon the holding of the court in A.-G., Oyo State v. N.L.C. [2003] 8 NWLR (Pt.821)pg. 1 on the need for a purposive interpretation of the Constitution when it held that:

“For the Court to carry out its functions under the Constitution effectively and satisfactorily it must be purposive in its construction of the Constitution. P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200, Rabiu v. The State (1981) 2 NCLR 293, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622, Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458, Chime v. Ude (1996) 7 NWLR (Pt. 461) 379.” Per ADEKEYE, J.C.A.(Pp. 31-32, Paras. G-B.

Despite that holding, it must be stated again for emphasis that this court is not empowered to expand its jurisdiction in the course of such interpretation but to expound on the provision relating to the jurisdiction. To expand is the duty of the Legislature. See Abdul-Raheem v. Oloruntoba-Oju (supra). Upon giving a literal, yet purposive interpretation of the provisions of the section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended) and expounding on same, I find that this court lacks jurisdiction to entertain the counter-claim as presently constituted.

In the final analysis, the counter-claim is also struck out.

No order is made as to costs.

Judgment is entered accordingly.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.