IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 14TH FEBRUARY, 2022
SUIT NO. NICN/LA/150/2022
BETWEEN
1. INCORPORATED TRUSTEES OF
ASSOCIATION OF MEDICAL
SCIENTISTS OF NIGERIA (AMLSN)
2. MISS OLAOKE ESTHER ODUNOLA
(CHAIRMAN LAGOS STATE CIVIL
SERVICE CHAPTER OF AMLSN CLAIMANTS
3. THOMAS SAMUEL AYODEJI (SECRETARY
LAGOS STATE CIVIL SERVICE
CHAPTER OF AMLSN)
4. MR LESLIE OLURENGBENGA OLARENREWAJU
(PUBLICITY SECRETARY AMLSN
LAGOS STATE BRANCH)
AND
1. HONOURABLE ATTORNEY GENERAL AND COMMISSIONER
FOR JUSTICE, LAGOS STATE
2. HONOURABLE COMMISSIONER FOR HEALTH MINISTRY
OF HEALTH, LAGOS STATE
3. HONOURABLE COMMISSIONER FOR ESTABLSIHMENT
TRAINING AND PENSION MINISTRY OF ESTABLISHMENT
TRAINING AND PENSION, LAGOS STATE
4. LAGOS STATE HEALTH SERVICE COMMISSION LAGOS STATE
5. CHIEF MEDICAL DIRECTOR, LAGOS STATE UNIVERSITY
TEACHING HOSPITAL, (LASUTH) LAGOS STATE
6. DR THOMAS B. OLUKAYODE (DIRECTOR OF PATHOLOGY
SERVICE, GENERAL HOSPITAL, LAGOS STATE.
7. LAGOS STATE PRIMARY HEALTH BOARD, YABA, LAGOS STATE
8. DR GANIKALE I. OLAYIWOLA (MEDICAL DIRECTOR/CEO
GENERAL HOSPITAL, ODAN, LAGOS STATE) DEFENDANTS
9. ASSSOCIATE PROFESSOR ADEDOYIN OWOLABI DOSUNMU
HOD, HAEMATOLOGY AND BLOOD GROUP SEROLOGY
LAGOS STATE UNIVERSITY TEACHING HOSPITAL, IKEJA,
LAGOS STATE)
10.DR JOSEPHINE ARAMIDE A. ONAKOYA
(HOD CHEMICAL PATHOLOGY, LAGOS STATE UNIVERSITY
TEACHING HOSPITAL, IKEJA, LAGOS
11.DR WASIU BANDELE MUTIU
(HOD MEDICAL MICROBIOLOGY/PARASITOLOGY, LAGOS
STATE UNIVERSITY TEACHING HOSPITAL, IKEJA, LAGOS
12.ASSOCIATE PROFESSOR FRANCIS FADUYILE
(HOD HISTOPATHOLOGY AND FORENSIC, LAGOS STATE
UNIVERSITY TEACHING HOSPITAL, IKEJA, LAGOS
REPRESENTATION
Ademola Adewale, Esq with K. O. Ijatuyi, Esq for the Claimant.
A. O. Ogunsanya, Esq with M. I. V. Adoga, Esq and G. U. Dike, Esq for the 1st – 11th Defendants.
Alex Akoja, Esq for the 12th Defendant.
JUDGMENT
INTRODUCTION
This suit was instituted vide an Originating Summons dated and filed 25th March, 2019. By an amended Originating Summons dated 8th November, 2021, the Claimants submitted the following questions for determination:
1. Whether under the clear provisions of the Medical Laboratory Science Council of Nigeria Act 11 of 2003, an Act that regulates the profession of the Claimants wherever they are engaged at both Federal and State Health Institutions in Nigeria, a person who is not a member of the profession is entitled to practice the profession?
2. Whether having regard to the said Act No. 11 of 2003 and the scheme of service made pursuant thereto by the Federal Government for Medical Laboratory Scientists, pathologists of whatever grade, who are not members of the Claimants’ profession, can practice the said profession either directly or through a scheme of Control, Supervision, Management or Approval of the professional work of a Medical Laboratory Scientist?
3. Whether having regard to the provision of Act No.11 of 2003 and or the Scheme of Service approved by the Federal Government (made pursuant thereto) for their cadre, Medical Laboratory Scientists in the employment of the 2nd Defendant are not entitled to autonomy of practice when the field of their competences and trainings as a distinct professional group?
4. Whether having regard to the clear provision of the above Act No. 11 of 2003, the dichotomy between Medical Laboratory Scientists and Medical Laboratory Technologists working in all public hospitals in Lagos is proper?
5. Whether it is proper to recognise and secularise the parity between Associate of Institute of Medical Laboratory Science (AIMLS and Bachelor of Medical Laboratory Science (BMLS) in Lagos State?
6. Whether it is proper to place graduate members of the Claimants of Institute of Medical Laboratory of (AIMLT) Nigeria (IMLTN) on a terminal scale of Grade Level 14 in the public service of Lagos State?
7. Whether it is ripe to domesticate all relevant laws applicable to AMSLN members in Lagos State as it was done by the Federal Government and now followed by many states of the Federation?
8. Whether members of the Claimants’ professional group in the employment of Lagos State are entitled to the autonomy of practice of their profession as clearly pronounced upon in the eight judgments delivered by this Honourable Court between 2013 and 2019?
9. Whether it is proper for pathologists or non-medical laboratory scientist to assume responsibility, management, supervision and control of medical laboratory services in all health sectors in Lagos State?
10. Whether it is legal for Doctor Thomas B. Olukayode or any other pathologist as Director of Pathology services to oversee the activities of the Medical Laboratory Scientist in any health care facility in Lagos?
11. Whether having regard to the clear decisions of this Honourable Court in relation to questions 1 to 9 above in the following cases which are in favour of the Claimants’ professional group: namely –
a. SUIT NO: NICN/ABJ/128/2012- ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 2 ORS v HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 5 ORS. Judgment delivered in favour of Medical Laboratory Scientists on 23rd Oct. 2013.
b. SUIT NO: NICN/JOS/8/2014 - ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 3 ORS v JOS UNIVERSITY TEACHING HOSPITAL & 3 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 5th October, 2015.
c. SUIT NO: NICN/ABJ/284/2014 – NIGERIAN UNION OF PHARMACIST, MEDICAL TECHNOLOGISTS AND PROFESSIONALS ALLIED TO MEDICINE & ANOR v OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITALS COMPLEX MANAGEMENT BOARD & 6 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 27th January, 2016.
d. SUIT NO: NICN/ABJ/285/2014 – INCORPORATED TRUSTEES OF THE ASSOCIATION OF THE MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 2 ORS v HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 7 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 9th June, 2016.
e. SUIT NO: NICN/ABJ/114/2014 - INCORPORATED TRUSTEES OF THE ASSOCIATION OF THE MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 10 ORS v HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 11 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 17th February, 2017.
f. SUIT NO: NICN/ABJ/332/2016 - INCORPORATED TRUSTEES OF THE ASSOCIATION OF THE MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 2 ORS v HON. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, OGUN STATE & 7 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 26th January, 2018.
g. SUIT NO: NICN/ABJ/421/2016 - INCORPORATED TRUSTEES OF THE ASSOCIATION OF THE MEDICAL LABORATORY SCIENTISTS OF NIGERIA & 6 ORS v HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 11 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 24th April, 2018.
h. SUIT NO: NICN/AW/35/2014 - INCORPORATED TRUSTEES OF THE ASSOCIATION OF THE MEDICAL LABORATORY SCIENTISTS OF NIGERIA & ANOR v HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 4 ORS. Judgment delivered in favour of the Medical Laboratory Scientists on 4th October, 2019?
Consequently, the Claimants claim the following reliefs:
1. A DECLARATION that by virtue of the Medical Laboratory Science Council of Nigeria Act 11 of 2003, only previous qualified and fully registered as Medical Laboratory Scientists can practice the profession in any Public Health Institutions in Lagos State subject only to the provision of Section 22(2) of the said Act.
2. A DECLARATION that by virtue of the Scheme of Service approved by the Federal Government for the cadre of the Medical Laboratory Scientists (applicable to Lagos State), responsibility for the supervision, management and control of the Medical Laboratory Department is placed on the Director, Medical Laboratory Sciences or the most Senior Medical Laboratory Scientist in the said Department.
3. A DECLARATION that Medical Laboratory Scientists employed in the service of the Defendants (particularly 3rd Defendant) are by virtue of the said Act No. 11 of 2003 and on the Scheme of Service approved by the Federal Government for their cadre entitled to autonomy of practice within their field of competence and in their own separate Department as distinct professionals since only the Federal Government can legislate on labour issues.
4. A DECLARATION that the pathologists of whatever grade in the employment of the Defendants at Public Hospitals, Primary Health Care Board, Health Service Commission and Lagos State University Teaching Hospital, Lagos State, who are not registered Medical Laboratory Scientists, are not entitled to practice the profession of the Claimants in any manner, design or disguise whatsoever as presently being done in Lagos State public hospitals and health facilities.
5. INJUNCTION restraining the Defendants (especially 2nd to 12th Defendants) for grading or undermining the autonomy of practice of the Medical Laboratory Scientists either by permitting non-Medical Laboratory Scientists to intermeddle in the practice of Medical Laboratory Science or by imposing supervisory control of non-scientists in all public health hospitals in Lagos State.
6. A DECLARATION that the current dichotomy between members of the Claimants and the nomenclature Medical Laboratory Technologists is illegal and should be scrapped forthwith.
7. A DECLARATION that parity between AIMLS- Associate of Institute of Medical Laboratory Science and BMLS – Bachelors of Medical Laboratory Science is in accord with the provisions of the law and Scheme of service which regulates the profession of the Claimants in Nigeria.
8. A DECLARATION that it is illegal and inappropriate to place Claimants’ members who, as graduates of AIMLT on a terminal grade level 14 of the Lagos State Public Service.
9. A DECLARATION that the law applicable to members of the Claimants in federal tertiary health institution should be applicable to Lagos State as it is a labour matter preserved in the Exclusive Legislative List of the Federal Government.
10. A DECLARATION that the establishment of the Medical Laboratory Services Department in all public Health institutions in Lagos State is in accordance with the extant laws and Scheme of Service applicable to Medical Laboratory Scientists.
11. A DECLARATION that all the eight clear decisions of this Honourable Court relating to all the issues raised in this suit are binding on the Defendants especially 2nd to 12th Defendants.
12. A DECLARATION that the assumption of the responsibility, supervision, management and control of medical laboratory scientists in all health care sectors in Lagos State by pathologists and non-medical laboratory scientist is illegal.
13. A DECLARATION that the current practice of by the Director of pathology services seeing to the affairs of Medical Laboratory Services in Lagos State health facility is illegal.
14. AN ORDER compelling the 3rd Defendant to immediately promote all Claimants’ members who are graduates of AIMLT to the next grade level, having regard to the years that they lost on the same level for long.
In support of the Originating Summons is a 32-paragraph affidavit deposed to by Miss Olaoke Esther Odunola, the 2nd Claimant on record. Documents were attached as exhibits to the affidavit in support. The gist of the affidavit in support of the Originating Summons is that the Claimants are professionals in the employment of the Lagos State Government as Medical Laboratory Scientists. That as Medical Laboratory Scientists, their training is different from Pathologists who are also in the employment of the Lagos State Government. Also, Medical Laboratory Scientists have a distinct Scheme of services designed for their cadre and career progression which was approved and adopted by the Lagos State Government many years ago.
Despite the differences between the Medical Laboratory Scientists (the Claimants herein) and Pathologists, Pathologists used to encroach in the area of competencies of the Medical Laboratory Scientists. This has generated a lot of furor which different meetings with the Defendants and letters to the Defendants by the Claimants have not been able to settle. In this light, the Claimants wrote a letter dated 1st February, 2016 to the 2nd Defendant requesting for the implementation of the Court judgments delivered in favour of the Claimants, and autonomy of the Claimants. Till date, the Defendants are yet to implement the various judgments in favour the Claimants or grant autonomy to the Claimants. This has led to the nature of the reliefs sought by the Claimants in this suit.
In Claimants’ Written Address in support of the Originating Summons, Learned Counsel on behalf of Claimants formulated a sole issue for determination, that is:
Whether having regard to the previous 8 (eight) decisions of this Honourable Court delivered between the year 2013 and 2019 and which are in favour of the Claimants, the Claimants can claim professional autonomy and separate department in all Health Institutions in Lagos State.
Learned Counsel to Claimants submitted that the decisions of the Court on the subject matter of this case are binding on the Defendants. Therefore, same should be applicable to all the issues raised in this suit.
Learned Counsel therefore urged the Court to adopt the earlier decisions on the Court on the subject matter of this case and grant the reliefs sought by the Claimants.
DEFENDANTS’ COUNTER AFFIDAVIT
The Defendants, in their Counter-affidavit deposed to by Dr Olukoyode B. Thomas. He stated that the term Medical Laboratory Services, Clinical Laboratory Services, Laboratory Medicine, Laboratory Medical Services, Laboratory Clinical Services and Laboratory Services are synonymous terms used interchangeably to reflect the set of services offered under the special specialty of pathology conducted in a laboratory.
That the pathologist is the physician trained to perform, authorize or oversee medical services covered under the medical specialty practice of Pathology. That it is the Medical and Dental Council of Nigeria Act (MDCN) and not the Medical Laboratory Science Council of Nigeria (AMLSCN) Act that regulates the practice of the profession of Pathology and Laboratory Medicine and therefore medical laboratory service. That the word ‘medical’ in Medical Laboratory Science is a term that gets its offshoot by being affiliated to the practice of medicine that is regulated by the Medical and Dental Council of Nigeria Act (MDCN) as such, it cannot stand on its own.
In Defendants’ Written Address in support of their Counter-affidavit, Learned Counsel on behalf of the Defendants formulated a sole issue for determination, that is:
Whether the responsibility, supervision, management and control of the Medical Laboratory should be placed in the care of the Medical Laboratory Scientists.
Learned Counsel to Defendants submitted that it is a disregard of existing law and professional ethics for the Claimants to request the Court to grant this declaration.
That in Section 2(e) of the Medical and Dental Act of Nigeria 1988, it is provided thus:
The Medical and Dental Council shall have responsibility for:
Making regulations for the operation of clinical laboratory practical in the field of Pathology which includes Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parisitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical virology, and …..
That from the above, it is clear that the functions and use of clinical laboratory as vested in the field of medicine are regulated by the Medical and Dental Council Act 1988 which precedes the Medical Laboratory Science Council Act of 2003 relied on by the Claimants. That the Section 22 of the Medical Laboratory Science Council Act 2003 relied on by the Claimants provides as follows:
A person who is not a member of the profession shall not practice the profession or, in expectation of reward, take or use any name, title, addition or description implying that he is in practice as a member of the profession, on or after the relevant date, provided that, in the case of a person falling within section
17 of this Act.
It is the submission of Learned Counsel to the Defendants that the provision above does not place the supervision, management and control of any medical laboratory solely under the purview of the Medical Laboratory Scientists. It only provides for respect of the profession which has been followed in Lagos State by the creation of a distinct cadre for the Medical Laboratory Scientist.
In the light of the foregoing, Learned Counsel to the Defendants urged the Court to dismiss the claim by the Claimants.
NOTICE OF PRELIMINARY OBJECTION
The 12th Defendant filed a Notice of Preliminary Objection asking the Court to strike out this suit.
The grounds for the Application are:
1. The suit as constituted is grossly incompetent.
2. The Claimants/Respondents are estopped from instituting this action by virtue of the principle of action estoppel.
3. The Claimants lack the requisite locus standi to institute this action.
4. The suit constitutes an abuse of processes of this Court.
5. The suit is frivolous is frivolous, embarrassing and designed to harass and irritate the 12th Defendant/Applicant and other pathologists.
6. The suit having contained features that have robbed the Court of jurisdiction has, in consequence, divested the Court of its jurisdiction.
ALTERNATIVELY
7. The Originating Summons proceeding is not the proper procedure to commence the suit because the facts, law and existing judgments therein are riotous, hostile and contentious which calls for his Lordship’s order for filing pleadings through Statement of Claims and possibly, expert witness.
In support is a 10-paragraph affidavit deposed to by Dr Francis Faduiyile, a Medical Practitioner and Pathologist with the Lagos State teaching Hospital, Ikeja, Lagos. The gist of the affidavit is that all the cases listed by Claimants in paragraph 10 of their affidavit in support of the Originating summons are cases previously litigated upon by either Claimants or its affiliates.
That one of the cases is presently a subject of appeal at the Appeal Court with Appeal No: CA/ABJ/96//2019. That in Suit No: NICN/ABJ/13/2017 - Incorporated Trustees of Medical Laboratory Scientists of Nigeria (AMLSN) & Ors v A. G. Kaduna State, Board of Management Barau Dikko Teaching Hospital Kaduna State, in an objection raised in the said case, hid Lordship, Hon. Justice Adeniyi, sustained the objection dismissing the case and insisting that all parties wait for the judgment of the Court of Appeal on the subject matter of the suit.
In support of the Notice of Preliminary Objection is a Written Address. In the said Written Address, Learned Counsel on behalf of the 12th Defendant formulated four issues for determination:
1. Whether considering the hearing and conclusion of eight previous suits filed by the 1st Claimant/Respondent against the 6th – 12th Defendants/Applicant and/or their privies on the same issues and same currently being appealed against, this suit as presently constituted is not caught by the principle of cause of action/issue estoppel and therefore an abuse of Court processes.
2. Whether the 1st Claimant and all other Claimants do not lack the requisite locus standi to institute and maintain this action.
3. Whether the suit does not contain features that have rendered the suit incompetent and has robbed the Court of its jurisdiction.
ALTERNATIVELY:
4. Whether in view of the circumstances of this case, it is not one that requires the filing of pleadings.
ARGUMENTS
On Issue 1: Whether considering the hearing and conclusion of eight previous suits filed by the 1st Claimant/Respondent against the 6th – 12th Defendants/Applicant and/or their privies on the same issues and same currently being appealed against, this suit as presently constituted is not caught by the principle of cause of action/issue estoppel and therefore an abuse of Court processes.
Learned Counsel to 12th Defendant/Applicant submitted that Claimants had earlier litigated upon the issue of the interpretation of the Medical Laboratory Science Council of Nigeria Act 2003 No. 11. Therefore, this present suit is caught by the doctrine of issue and cause of action estoppel and therefore an abuse of Court processes. He referred Court to Donald v Saleh (2015) 2 NWLR (Pt. 1444) 529 at 570 – 571 Paras G – B where the Court of Appeal, Makurdi Division, held:
The principle implies that a verdict that was previously rendered in a Court of Law would constitute a bar to a subsequent action on the same terms. The doctrine finds anchorage in public policy – to put an end to litigation. For the principle to apply, it must be shown by its propounder that:
a) The parties in the previous and present action are the same
b) The subject matter in the two actions is the same
c) The issues in the two matters are the same; and
d) The decision in the previous action must be final and by a Court of competent jurisdiction.
Learned Counsel also relied on the case of Okafor Adone & 2 Ors v Ozo Gabriel Ikebudu & 5 Ors (2001) 14 NWLR Pt 733 Pg. 385 at 418 Para C – E.
It is the submission of Learned Counsel to 12th Defendant/Applicant that it is a settled principle of law that our Courts are empowered to decline invitation of parties to hear suits which have been instituted to vex and irritate the other parties where same set of issues have been decided upon.
On Issue 2: Whether the 1st Claimant and all other Claimants do not lack the requisite locus standi to institute and maintain this action.
Learned Counsel to 12th Defendant/Applicant stated that the Claimants, even though registered under part C of CAMA is not a registered Trade Union therefore it is not clothed with the requisite locus standi to maintain this action especially as same was instituted in representative capacity.
It is the position of Learned Counsel that only a trade union registered under the Trade Union Act has the legal capacity to sue in the circumstances of this case.
On Issue 3: Whether the suit does not contain features that have rendered the suit incompetent and has robbed the Court of its jurisdiction.
Learned Counsel to 12th Defendant/Applicant submitted that the suit of the Claimants herein is about regulations of professionals and this Court lacks the jurisdiction on the interpretation of professional regulation.
It is the position of Learned Counsel that it is the Federal High Court that has jurisdiction on the subject matter of this suit.
On Issue 4: Whether in view of the circumstances of this case, it is not one that requires the filing of pleadings.
Learned Counsel to 12th Defendant/Applicant submitted that the Claimants’ case is hinged on allegation of harassment, intimidation and discrimination at the workplace. That it is clear that the facts in this case are disputed and highly contentious which makes Originating Summons inappropriate in this regard.
Learned Counsel therefore urged the Court to dismiss this suit in its entirety.
CLAIMANTS’ RESPONSE TO NOTICE OF PRELIMINARY OBJECTION
On receipt of the Notice of Preliminary Objection filed by the 12th Defendant/Applicant, the Claimants, through Olaoke Esther Odumola, the 2nd Claimant on record, deposed to a 13-paragraph affidavit in opposition to the Application of the 12th Defendant. The gist of the Counter-affidavit is that the parties in this case are quite different from the parties in the suits listed even though the issues are the same. That the reliefs in this case are peculiar to members of the 1st Claimant in Lagos.
In Claimants’ Written Address, Learned Counsel on behalf of the Claimants formulated a sole issue for determination, that is:
Whether having regard to the peculiar problems (set out in the Originating Process) besetting Medical Laboratory Scientists working in public health institutions in Lagos State, this action is sustainable despite the existence of some judgments of this Court on some of the issues (not all) raised in the present case.
Learned Counsel to the Claimants/Respondent submitted that the questions formulated and the reliefs sought by the Claimants in the Originating Summons are clearly beyond what the previous judgments covered.
Learned Counsel therefore urged the Court to discountenance the arguments of the 12th Defendants as the parties in this suit are different from parties in the earlier suits.
COURT
Having gone through the case of the Claimants, the Counter-affidavit of the Defendants in opposition to the Originating Summons of the Claimants, documents frontloaded by both parties and arguments canvassed in support of the individual cases of the parties before me, this Court has distilled a sole issue for determination, to wit:
Whether given the facts and circumstances of this case, there is merit in the case of the Claimants.
Before addressing the issue distilled above, I will like to rule on the Notice of Preliminary Objection by the 12th Defendant since it touches on the jurisdiction of this Honourable to entertain this suit. The 12th Defendant in their objection, exhibited the ruling delivered by my Learned Brother Hon. Justice Adeniyi striking Suit No: NICN/AB/13/2017 between Incorporated Trustees of Association of Medical Laboratory Scientists of Nigeria (AMLSN) & Ors v Kaduna State Board of Management, Barau Dikko Teaching Hospital, Kaduna State. The said Ruling was attached to the Further Affidavit of the 12th Defendant in support of their objection.
The 12th Defendant also addressed salient issues in their Written Address in support of their objection. On issue formulated by the 12th Defendant, Learned Counsel is of the opinion that the subject matter of this suit, having been earlier litigated upon and decision reached on the eight suits earlier filed, and given that an appeal has been lodged, this suit is caught by the principle of cause of action/issue estoppel. I must pause here to say that of all the cases listed by the Claimants in paragraph 10 of the affidavit in support of their Originating Summons, the only one that the 12th Defendant pointed out to be on appeal is Suit No: NICN/ABJ/284/2014 between Nigeria Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors.
The said judgment was delivered by Hon. Justice Adejumo (past President of this Court). Apart from this judgment, every other judgment still stands without being appealed. Now, if that be the case, it means that the matter in Suit No: NICN/ABJ/284/2014 between Nigeria Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors is still not finally determined as the Court of Appeal is yet to reach a decision on this matter therefore, it is premature to call in the principle or doctrine of res judicata. See the Supreme Court’s decision in Ex parte Salami Adeshina (1993) 4 NWLR (PT 442) 254 where the Supreme Court held that before a case can be said to be final in order to invoke the plea of res judicata, the matter must have been final and closed between the parties in such a way that all remedies of appeal have been exhausted. See also Agbogunleri v Depo (2008) 3 NWLR (Pt 1074) 217.
In this light, whereas this Honourable Court has become functus officio in the case of Suit No: NICN/ABJ/284/2014 between Nigeria Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors, it cannot be relied upon by calling in the doctrine of res judicata when it is yet to be completed on the appeal that lies against it. In this regard, the doctrine of res judicata cannot avail the Defendants herein, and I so hold.
Furthermore, the cases of Ogbolosinga & Anor v B.S.I.EC & Ors (2015) Vol. 245 LRCN 140; D.T Tent (Nig) CO. Ltd V. Busari (2011) 18 NWLR (Pt. 1249) 387; Bwacha v Ikenye (2011) 3 NWLR (Pt. 1235) 610 have confirmed that before the doctrine of res judicata can apply, the following conditions must be met:
a. The parties or their privies are the same in both the previous and present proceeding.
b. The claim or the issue in dispute in both actions is the same.
c. The res or the subject matter of the litigation in the two cases is the same.
d. The decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting or final.
e. The Court that gave the previous decision, upon which to sustain the plea is a Court of competent jurisdiction.
In the case herein, if I were to take the appeal on Suit No: NICN/ABJ/284/2014 between Nigeria Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors in isolation, it is clear that the parties and privies in the said suit are all not the same with the present suit, if I were to also take the remaining suits (numbering seven) in paragraph 10 of the affidavit in support of the Originating summons in isolation, it is also clear that not all the parties in those suits are the same as this present suits.
In this light, the doctrine of res judicata cannot avail the Defendants herein because parties in those suits are not all the same as parties in this suit, and I so hold.
In all fairness to the Defendants, I feel that if we are talking about same set of issues having be litigated upon, we should also talk about whether those decided cases have been respected by the Defendants or its affiliates, as the case may be. If the answer is in the negative, then all I can say is that the child who says his mother will not sleep, the child also will not sleep. Nobody who murders sleep can enjoy the benefit of sleep. In the same vein, nobody who deliberately ignores or disrespects the decision of a competent Court of law can be heard to say that a successful party is abusing the processes of Court when sued.
Those who come to equity should come with clean hands. The Defendants herein have tainted their hands by not implementing the decisions of this Court in their State’s Chapter hence the need they are being sued at their State Chapter’s level (Lagos State). If they have quietly implemented the said decisions at their State Chapter’s level, this Court will not be inundated with the number of suits it is inundated with on the matter of Medical Laboratory Scientists and Pathologists. We are where we are because the Defendants and some of their allies in other states have, for reasons best known to them, failed/neglected to implement the decisions of the Court at their several states levels. Hence these suits emanating from one state after the other.
In all, Issue 1 formulated by the 12th Defendant in their Notice of Preliminary Objection is hereby resolved against the Defendants but in favour of the Claimants.
In issue 2 of the 12th Defendant in their Written Address in support of their objection, they argued that the 1st Claimant has no locus to institute this suit as it is registered under Part C of CAMA and not under the Trade Union Act. It seems to me that what the 12th Defendant is saying is that this Court, as a labour court, only has jurisdiction over artificial bodies registered under the Trade Union Act. At the same time, it also seems to me that what the 12th Defendant is saying is that artificial bodies registered under Part C of CAMA do no enjoy legal personalities but the one registered under the Trade Union Act.
Be that as it may, there were times when the jurisdiction of this Court was limited to trade dispute arising from the Trade Union Act. It is no longer so by virtue of Section 254 of the 1999 Constitution (as amended). Furthermore, incorporation with the Corporate Affairs Commission, whether under Part A, Part B or Part C cloaks an artificial body with the legal capacity to sue and be sued in such registered name.
An artificial body/organization enjoys legal personality by incorporation with the Corporate Affairs Commission (CAC) or by the statute/law creating that body/organization. See Gani Fawehinmi v NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558; Carlen (Nig) Ltd v Unijos (1994) SCNJ 72, (1994) 1 NWLR Pt. 323 Pg. 631; Bank of Barode v Iyalabani Co. Ltd (2002) 13 NWLR (Pt. 785) P. 551. In this regard, the 1st Claimant enjoys legal personality and can sue and be sued in the name it is suing in this suit, and I so hold.
In Issue 3 of the 12th Defendant, they argued that the subject matter of this suit is outside the scope of its jurisdiction but under the jurisdiction of the Federal High Court. The jurisdiction of this Honourable is well espoused in Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which is partly replicated in Section 7 (1) of the National Industrial Court of Nigeria 2006. It provides for the jurisdictional power of this Honourable Court as follows:
(1) Notwithstanding the provisions of Sections 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 matters –
(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(b) Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any Act or Law relating to labour, employment, industrial relations, workplace or any enactment replacing the Acts or Laws;
(c) ………………………………………………………………………..
(d) …………………………………………………………………………
(e) ……………………………………………………………………..
(f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relations matters;
(g) ……………………………………………………………………………..
(h) ………………………………………………………………………………..
(i) …………………………………………………………………………………
(j) 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;
(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 memoranda of settlement;
(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place
From the provision of the section above, the National Industrial Court is conferred with exclusive and original jurisdiction arising from disputes at workplace and disputes over industrial relationships. Therefore, whether the case of the Claimants is on the interpretation of the judgments of this Honourable Court already delivered in previous cases; whether the case is unfair labour practice meted to the Claimants at workplace and they are aggrieved; whether it is a matter of dispute on who does what between the Claimants and pathologists; whether it is about the constitution, regulations of the Claimants vis-à-vis the Defendants, no other Court has a better jurisdiction than this Court, and I so hold. In this regard, issue 3 of the 12th Defendant is resolved against the Defendants but in favour of the Claimants.
For clarity on the jurisdiction of this Honourable Court, I will recommend the book – The Jurisdiction of the National Industrial Court: How Narrow is Narrow by Hon. Justice B. B. Kanyip (PNICN) to the Defendants herein.
On issue 4 formulated by the 12th Defendant in the Notice of Preliminary Objection, Learned Counsel to 12th Defendant argued that the case of the Claimants is on allegations of harassment, intimidation and discrimination at workplace. That these allegations cannot be properly determined without calling in the filing of pleadings. Well, if the 12th Defendant understood the case of the Claimants very well, then they will know that the case of the Claimants is hinged on the interpretations of Medical Laboratory Science Council of Nigeria Act 11 of 2003 as well the earlier decisions of this Honourable Court on the subject matter. In this regard, Order 3 Rule 3 of this Court give them the liberty to come by way of Originating Summons. In this vein, there is no aberration in the Originating Summons issued by the Claimants given the circumstances of this case, and I so hold.
Having resolved all the issues against the Defendants, the Notice of Preliminary Objection fails and same is hereby dismissed.
Now, moving to the meat of the substantive suit, the trite law is that civil cases are determined on preponderance of evidence. The Claimants, with exhibited documents, have been able to show that indeed a dispute exists between them and Pathologists, all working in different public health sectors across Lagos State; they have been able to demonstrate that by virtue of Medical Laboratory Science Council of Nigeria Act 11 of 2003, they are professionals whom, even though they work with other medical professionals, the Act protects them against proliferation of their professional activities; they have also demonstrated that the case on the interpretation of Medical Laboratory Science Council of Nigeria Act 11 of 2003 is not novel as the Court has decided on it in several cases to which eight of such cases where exhibited before this Honourable. My humble-self happened to have delivered judgment on the same subject matter.
From the plethora of judgments delivered by this Honourable Court on this subject matter, which I have taken judicial notice of, it is glaring that there is need for the independence of the Claimants to be accorded and respected. Yes, the Claimants, like the Israelites are asking Pharoah to let their people go. In an environment where there are professionals, it is mutual that such professionals should respect the boundary of each professional and not see them as subservient when the law has not made them so. I have also taken into consideration Section 2(e) of the Medical and Dental Council Act of Nigeria cited by the Defendants.
From my appraisal of the case before me, the Claimants are not asking for the overall headship of the Pathology Department or the power to make regulations for the operation of clinical laboratory practice in the field of pathology in any of the public health hospitals. They are only asking for autonomy within their practice as Medical Laboratory Scientists and for one of their own to head them as far as Medical Laboratory Scientists are concerned. In a city where all indigenes are blind, the one with one eye is chosen as a king. Let the Claimants herein be allowed to pick from their own kind a king who may not qualify as a Pathologist but is qualified as a Medical Laboratory Scientist. This, with all intents and purposes, will not affect the symbiotic relations expected of all medical professionals working for the common good of the public health sectors across Lagos State. The autonomy demanded for is not outside the law but within the law as provided in Act No. 11.
Therefore, in line with all the decisions of the Court before me on this subject matter, I answer all the questions submitted by the Claimants in the affirmative and the reliefs sought thereat succeed and same are hereby granted.
For the avoidance of doubt, the order/declaration(s) of the Court are as follows:
1. THE COURT HEREBY DECLARES that by virtue of the Medical Laboratory Science Council of Nigeria Act 11 of 2003, only previous qualified and fully registered as Medical Laboratory Scientists can practice the profession in any Public Health Institutions in Lagos State subject only to the provision of Section 22(2) of the said Act.
2. THE COURT HEREBY DECLARES that by virtue of the Scheme of Service approved by the Federal Government for the cadre of the Medical Laboratory Scientists (applicable to Lagos State), responsibility for the supervision, management and control of the Medical Laboratory Department is placed on the Director, Medical Laboratory Sciences or the most Senior Medical Laboratory Scientist in the said Department.
3. THE COURT HEREBY DECLARES that Medical Laboratory Scientists employed in the service of the Defendants (particularly 3rd Defendant) are by virtue of the said Act No. 11 of 2003 and on the Scheme of Service approved by the Federal Government for their cadre entitled to autonomy of practice within their field of competence and in their own separate Department as distinct professionals since only the Federal Government can legislate on labour issues.
4. THE COURT HEREBY DECLARES that the pathologists of whatever grade in the employment of the Defendants at Public Hospitals, Primary Health Care Board, Health Service Commission and Lagos State University Teaching Hospital, Lagos State, who are not registered Medical Laboratory Scientists, are not entitled to practice the profession of the Claimants in any manner, design or disguise whatsoever as presently being done in Lagos State public hospitals and health facilities.
5. THE COURT HEREBY MAKES AN ORDER OF INJUNCTION restraining the Defendants (especially 2nd to 12th Defendants) for grading or undermining the autonomy of practice of the Medical Laboratory Scientists either by permitting non-Medical Laboratory Scientists to intermeddle in the practice of Medical Laboratory Science or by imposing supervisory control of non-scientists in all public health hospitals in Lagos State.
6. THE COURT HEREBY DECLARES that the current dichotomy between members of the Claimants and the nomenclature Medical Laboratory Technologists is illegal and should be scrapped forthwith.
7. THE COURT HEREBY DECLARES that parity between AIMLS- Associate of Institute of Medical Laboratory Science and BMLS – Bachelors of Medical Laboratory Science is in accord with the provisions of the law and Scheme of service which regulates the profession of the Claimants in Nigeria.
8. THE COURT HEREBY DECLARES that it is illegal and inappropriate to place Claimants’ members who, as graduates of AIMLT, on a terminal grade level 14 of the Lagos State Public Service.
9. THE COURT HEREBY DECLARES that the law applicable to members of the Claimants in Federal tertiary health institution should be applicable to Lagos State as it is a labour matter preserved in the Exclusive Legislative List of the Federal Government.
10. THE COURT HEREBY DECLARES that the establishment of the Medical Laboratory Services Department in all public Health institutions in Lagos State is in accordance with the extant laws and Scheme of Service applicable to Medical Laboratory Scientists.
11. THE COURT HEREBY DECLARES that all the eight clear decisions of this Honourable Court relating to all the issues raised in this suit are binding on the Defendants especially 2nd to 12th Defendants.
12. THE COURT HEREBY DECLARES that the assumption of the responsibility, supervision, management and control of medical laboratory scientists in all health care sectors in Lagos State by pathologists and non-medical laboratory scientist is illegal.
13. THE COURT HEREBY DECLARES that the current practice of by the Director of pathology services seeing to the affairs of Medical Laboratory Services in Lagos State health facility is illegal.
14. THE COURT HEREBY MAKES AN ORDER compelling the 3rd Defendant to immediately promote all Claimants’ members who are graduates of AIMLT to the next grade level, having regard to the years that they lost on the same level for long.
Judgment entered accordingly.
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HON. JUSTICE M. N. ESOWE, FCIArb
Presiding Judge.