IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON JUSTICE O. O. OYEWUMI
DATED: 26TH JANUARY,2023 SUIT NO: NICN/ABJ/400/2019
BETWEEN
1. THE INCORPORATED TRUSTEES OF ASSOCIATION
OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA
2. THE ASSOCIATION OF MEDICAL LABORATORY SCIEN-
TISTS OF NIGERIA, USMANU DANFODIYO UNIVERSITY
TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE
3. AHMED ARMIYA’U YELWA CLAIMANTS
(CHAIRMAN, ASSOCIATION OF MEDICAL LABORATORY
SCIENTISTS OF NIGERIA, USMANU DANFODIYO UNIVERSITY
TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
4. RUFAI ABUBAKAR
(SECRETARY, ASSOCIATION OF MEDICAL LABORATORY
SCIENTISTS OF NIGERIA, USMANU DANFODIYO UNIVERSITY
TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
AND
1. USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE
2. HON ATTORNEY GENERAL OF THE FEDERATION....DEFENDANTS
AND MINISTER FOR JUSTICE, FEDERAL MINISTRY
OF JUSTICE, ABUJA
3. HON MINISTER OF HEALTH FEDERAL MINISTRY OF HEALTH, ABUJA
4 DR ANAS SABIR
(CHIEF MEDICAL DIRECTOR, USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
5 ALHAJI IBRAHIM SALIM
(DIRECTOR ADMINISTRATION, USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
6. DR NASIRU MUHAMMED
(CHAIRMAN MEDICAL ADVISORY COMMITTEE USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
7. DR ABDULLAHI KABIRU
(HEAD OF DEPARTMENT, HISTOPATHOLOGY USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
8. DR MUHAMMED YAHAYA
(HEAD OF DEPARTMENT, MICROBILOGY USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
9. DR A.U MUSA
(HEAD OF DEPARTMENT, HAEMATOLOGY, USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
10. DR M.B ABDULRAHMAN
(HEAD OF DEPARTMENT, CHEMICAL PATHOLOGY USMANU DANFODIYO UNIVERSITY TEACHING HOSPITAL SOKOTO CHAPTER, SOKOTO STATE)
REPRESENTATION
A.O Nkanor Esq. for the claimants
Y. C. Maikyau SAN with R.T. Agbanyi Esq, U.P Nwosu Esq. M. F Belgore Esq, Oluwatosin Amadi Esq for the 1st, 4th, 5th, 6th defendants
D.E. Kaswe Esq Assistant Chief State Counsel Federal Ministry of Health with him F.N Ninis Esq. Principal Legal Officer for the 2nd and 3rd defendants
Alex Akoja Esq. with him Patricia Ikpegbu Esq., A.O Oyediran Esq., K.T. Sulaiman Esq., O.K. Lawal Esq. for the 7th to 10th defendants.
JUDGMENT
1. The claimants on the 16th of December, 2019 filed an Originating Summons against the defendants praying to the Court to determine the following questions;
1. Whether by any provision of the Medical Laboratory Science Council of Nigeria Act 2003 and the Approved Scheme of Service for Medical Laboratory Scientists Cadre the medical laboratory scientists are the only ones to head the various sections/departments of medical laboratories in hospitals/health sectors in Nigeria.
2. Whether under the provisions of the Medical Laboratory Science Council of Nigeria Act 2003 and the Scheme of Service approved by the Federal Government for medical laboratory scientists, pathologist of whatever grade or a person who is not a member of the profession can practice the profession directly or indirectly through any scheme of control, supervision, management or to approving professional works/reports of a medical laboratory scientists.
3. Whether or not the defendants are bound by the scheme of service approved by the Federal Government for medical laboratory scientists’ cadre.
4. Whether the medical laboratory scientists are entitled to have a full-fledged department created for them and to be headed by them.
5. Whether the 2nd –4th claimants and all other medical laboratory scientists at the 1st defendant are members and part of the only existing Association of medical laboratory scientist of Nigeria represented by the 1st complainant and are entitled to benefit from all the judgments/ orders given by this Honorable Court in favour of the 1st complainant.
6. Whether the various judgments/orders given by this Honourable Court in suit Nos. NICN/ABJ/128/2012 decided on 23rd October, 2013; NICN/JOS/8/2014 decided on 5/10/2015; NICN/ABJ/284/2014 delivered on 27/1/2016; NICN/ABJ/97M/2016 delivered on 17th February, 2017, etc are all binding on the defendants and whether the defendants have option to obey or disobey them.
7. Whether the claimants are a distinct professional group that should be accorded due recognition in the health sector.
2. And if the answers to Questions 1, 3, 4, 5, 6 and 7 above are in the positive, while that of Question 2 and 6(b) are in the negative, the claimants claim the following;
a. A declaration that the Orders and declarations in the judgments of this Honourable Court in Suit no NICN/ABJ/128/2012 decided on 23rd October, 2013 between The Incorporated Trustee of Association of medical laboratory scientists of Nigeria & 2 Ors and Hon. Attorney General of the Federation and Minister of Justice, Federal Ministry of Justice Abuja & 5 Ors and other subsequent similar judgments of the Court thereafter on various other dates in the sister suits to this suit with similar subject matters wherein the 1st complainant and others as in this suit were the complainant complaining against the sister hospital as the 1st defendant and persons occupying similar positions as the other defendants in this suit, are all binding on the defendants in this suit.
b. A declaration that the 2nd to 4th complainants and every other medical laboratory scientist who are members of Association of Medical Laboratory Scientists of Nigeria and part of the 1st complainant are entitled to enjoy and benefits from the various judgments and orders of this Court made in the previous sister cases in favour of the 1st complainant and their colleagues in those other hospitals.
c. A declaration that the Orders and judgments of this Court in all the earlier sister suits to this suit(supra) are notices to all relevant agencies and persons including the defendants to respect the status of the Association of Medical Laboratory scientists and that once the judgment(s) of this Court (supra) are brought to the notice of any employer of medical laboratory scientist in the public health sector, including the defendants, they have a legal duty to adjust their administrative structure in order to reflect the legally recognized status of the Association of Medical Laboratory scientists as the judgments are binding on those employers and must be obeyed/complied with by them and they have no right or power to choose to obey or disobey any of the orders and judgments of this Court.
d. A declaration that by virtue of the Medical laboratory science council of Nigeria Act No 11 2003, only persons or professional fully registered as medical laboratory scientists, regulated and or subject to the medical laboratory science council of Nigeria the statutory regulator for the practice of medical laboratory science/medical laboratory services in Nigeria, are entitled or qualified to practice the profession in Nigeria and to head the various section/department of the medical laboratory science services.
e. A declaration that by virtue of Sections 18(2), 22(2) of the medical laboratory science council of Nigeria 2003, Act No 11, the 7th, 8th, 9th, 10th defendants and any other none medical laboratory scientists, being only pathologists/medical doctors and not medical laboratory scientists, not being registered members of the medical laboratory science council and not having applied for registration as such cannot practice, interfere with any activity of the medical laboratory scientist, supervise, direct, guide the complainants and their members in any disguise or manner on how to perform their trained and professional duties or head the department of the medical laboratory science of the 1st defendant and any of its section.
f. A declaration that by virtue of paragraph 2.9.1 of the Scheme of Service approved by the Federal Government for the cadre of the medical laboratory scientists, responsibility to Head and for the general administration, supervision, management budgeting, control of the entire medical laboratory scientist department, etc are placed solely on the Director, medical laboratory services and not on a pathologist or any other person who is not medical laboratory science whilst its paragraph 2.8.1 gives the Deputy Directors the charge over divisions/ sections of the medical laboratory services and paragraph 2.7.1,4 give the assistant director not a pathologist the responsibilities of assigning and supervising subordinates and evaluate/monitoring reports.
g. A declaration that the Medical laboratory scientists employed in the services of the 1st defendant are by virtue of the aforesaid Act No 11 of 2003 and the Scheme of Service approved by the Federal Government for their cadre, are entitled to recognition and of autonomy of practice within their field of competence.
h. A declaration that the defendants are bound by the Scheme of service approved by Federal Government as it affect the cadre, the running and administration of medical laboratory science departments.
i. An order directing the defendants to, with immediate effect, comply with, obey and enforce all the terms of the various orders and judgments of this provision of Act 2003 no 11 and the scheme of service for medical laboratory scientists and to create a full fledgeded and separate department of medical laboratory scientist in service of the 1st defendant as envisaged in the scheme of service.
j. An order that following the provisions of Sections 18(2), 22(2) and the scheme of service for the medical laboratory scientist cadre, the 1st 4th and 5th defendants with immediate effect, should withdraw the 7th to 10th defendants and every other non-medical laboratory scientist from medical laboratory science department and its sections in the 1st defendant currently occupying the office of the Head of department (HOD) and any other officer including the resident doctor there who are either supervising, guiding, giving directives to the medical laboratory scientists there or performing any duty/function meant for only the medical laboratory scientists to perform as prescribed in the scheme of services and the Act No 11 of 2003 (supra).
k. An order of injunction stopping the 1st, 4th and 5th defendants from henceforth appointing, posting or assigning any pathologist or any other non-medical laboratory scientist to supervise direct, head the department or any section of medical laboratory science in the 1st defendant as doing so contravene the provisions of sections 18(2), 22(2) of the Act 2003 No 11 and of the Approved Scheme of Service for Medical laboratory scientist cadre.
l. An order of injunction restraining the 7th -10th defendants and other persons/privies who are not subject to and or under the statutory regulation of the medical laboratory science council of Nigeria from henceforth representing, holding themselves out or continuing to represent or hold themselves out as being authorized to practice or to occupy any position reserved for only qualified medical laboratory scientists or otherwise interfering in the performance and discharge of functions/duties of a medical laboratory scientist in the 1st defendant.
3. The claimant filed alongside their originating process a six (6) paragraph affidavit deposed to by one Muhammad Sani Kasimu wherein he deposed that the Claimants who are medical laboratory scientists and all other medical laboratory scientists in the 1st defendant are not being allowed by the defendants to head and oversee the activities of medical laboratory services in the 1st defendant and that the defendants are still appointing Pathologists who are not medical laboratory scientists by training to head, direct, supervise and control the medical laboratory scientists. The Courts have given judgment in favour of other medical laboratory scientists who have also experienced similar situations in other institutions but the defendants appointed the 7th to 10th defendants who are medical Doctors/Pathologists and not medical laboratory scientists to practice the profession of medical laboratory science and to head and supervise the Claimants. The Claimants have written several complaints as regard this anomaly which fell on the deaf ears of the defendants who still imposed the Pathologists on the Claimants and all other medical laboratory scientists in the 1st defendant and even imposed disciplinary measures to medical laboratory scientists for refusing the accept to be controlled by Pathologists. The defendants in this case are all aware of the several judgments. It was deposed further that it is the duty of Assistant Medical Laboratory Services to assign responsibility and not that of a pathologist while it is the sole duty of the Deputy Director/Director of Medical Laboratory Services to take charge and exercise general supervision of laboratory matters and the Director Medical Laboratory Services is saddled with the responsibility of general administration of Medical Laboratory Services in line with the Scheme of Service. The 1st, 4th to 6th defendants have no legal backing under the University Teaching Hospital (Reconstitution of Boards, etc) Act to appoint the 7th-10th defendants and other persons who are not medical laboratory scientists to head, supervise, give directives or teach trained medical laboratory scientists on how to perform their professional duties. The Association of Medical Laboratory Scientists of Nigeria is a distinct professional group that deserves recognition and are entitled to autonomy while medical laboratory scientists in the 1st defendant are entitled to work under separate departments. The Claimants and Medical Laboratory scientists are the only licensed professionals registered as Medical Laboratory Scientist to be employed and posted to practice the profession.
4. Also, filed by the Claimants is a written address wherein learned counsel formulated seven issues for determination to wit;
1. Whether by any provisions of the Medical Laboratory Science Council of Nigeria Act, 2003 and the Approved Scheme of Service for Medical Laboratory Scientist Cadre, the medical laboratory scientists are the only ones to Head various sections/Departments of Medical laboratories in hospitals/health sectors in Nigeria?
2. Whether under the provisions of the Medical Laboratory Science Council of Nigeria Act, 2003 and the Scheme of Service approved by the Federal Government for Medical Laboratory Scientist, Pathologists of whatever grade or a person who is not a member of the profession can practice the profession directly or indirectly through any scheme of control, supervision, management or to be approving professional works/reports of a medical laboratory scientists?
3. Whether or not the defendants are bound by the Scheme of Service Approved by the Federal Government for Medical Laboratory Scientists Cadre?
4. Whether the medical laboratory scientists are entitled to have a full flagged Department created for them and to be headed by them.
5. Whether the 2nd-4th defendants and all other medical laboratory scientists at the 1st defendant are members and part of the only existing Association of Medical Laboratory Scientists of Nigeria represented by the 1st Complainant and are entitled to benefit from all the Judgments/Orders given by this Honourable Court in favour of the 1st complainant.
6. Whether the various judgments/Orders given by this Honourable Court in Suit Nos NICN/ABJ/128/2012 decided on 23rd October, 2013; NICN/JOS/8/2014 decided on 5/10/2015; NICN/ABJ/284/2014 delivered 27/1/2016; NICN/ABJ/97M/2016 delivered on 17th February, 2017 etc are all binding on the defendants and whether the defendants have option to obey or disobey them?
7. Whether the Claimant are distinct professional group that should be accorded due recognition in the health sector?
5. Learned counsel argued issues 1, 3, 4 and 7 together. Counsel submitted that by virtue 19(4) and 29(b) of the Medical Laboratory Science Council of Nigeria Act 2003 Act, the medical laboratory scientists are to have separate register and the Scheme of Service made pursuant to the Act. He also relied on paragraph 49 of the 2nd Schedule to the 1999 Constitution; Section 23 of the Act; Rule 020205 of the Public Service Rules to submit that it is envisaged that a separate Department be created for members of the Claimant and to be headed by them in accordance with the provisions of the Scheme of Service and Section29 (b) of the Act. He urged the Court to give the provisions of the Act, the Rule and the Scheme of Service their ordinary meaning while relying on the following cases; COTECNA Intl Ltd v. Ivory Merchant Bank [2006] 4 SC(Pt 1) 1@8; Fasakin Foods Nig Ltd v. Shosanya [2006]4 SC (Pt 2) 204 @310; Qnochie v. Odogwu [2006]2 SC (Pt 2) 155@166. He urged the Court to hold that medical laboratory scientist are entitled to a separate distinct Department of theirs in the 1st defendant and the Court should order same to be created. He relied on the previous decisions of this Court. Learned counsel submitted that the defendants are bound by the provisions of the Scheme of Service which has given the Claimants a vested right that can not be taken away. He cited in support the case of Ndayako v. Dantoro [2004]NWLR (Pt 889)187@216, Paras B-D.
6. On issue two, learned counsel submitted that non- medical Laboratory Scientists are not allowed practice as Medical laboratory scientists. He relied on Sections 4, 18(2) 22(2) and 29 of the Act. He equally referred this Court to Suit No NICN/ABJ/284/2014 Nigerian Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v. Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors delivered on the 27th January, 2016. He submitted further that whatever in the Medical and Dental Practitioners Act, 1988 that gives the Medical Doctors power to practice medical laboratory science and Head the department of medical laboratory has been impliedly repealed by the coming into force of the Medical Laboratory Science Council of Nigeria Act. He relied on the case of Akintokun v. Legal Practitioners Disciplinary Committee [2014] LPELR-22941 (SC)62-63, Paras C-A. He submitted that even the powers given to the Board under Section 7 of the University Teaching Hospital (Reconstitution of Boards, etc) cannot be exercised to the contrary. He submitted that a public institution must act within the confines of the law. He cited in support P.H.M.B v. Ejiagbo [2000]11 NWLR (Pt 677)154@163 and Halsbury’s Laws of England Vol 1, 4th Edition, at 21 , Para 20 and the decision of this Court in Nigerian Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v. Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors, supra, page 23.
7. On issue five, it is the submission of learned counsel that the judgment of this Court in the previous suit in Suit No NICN/ABJ/128/2012 applies to every Medical Laboratory scientists in Nigeria working anywhere and the 2nd to 4th Claimants being members of the Association of Medical Laboratory Scientists are entitled to take benefit of the judgment. He cited in support the case of Obot v. Etim [2008]12 NWLR (Pt 1102)754@781, 782; Bello v. A.G Oyo State [1986]5 NWLR ( Pt 48)828@885-886; Omoyinmi v. Ogunsiji [2008]3 NWLR (Pt 1075)471@490. He also relied on the decision of this Court in Suit No NICN/ABJ/97M/2016; Association of Medical Laboratory Scientists of Nigeria & 3 Ors v. Jos University Teaching Hospital & 3 Ors delivered on the 17th February 2017.
8. On issue six, counsel submitted that 1st, 4th-10th defendants had notice of the previous judgments of this Court and cannot claim ignorance of those judgments given in favour of the Claimants as clearly shown in paragraph 4 of the written deposition of the Claimant. It is counsel’s further submission that the 1st, 4th -10th defendants despite having notice of the previous judgments of this Court have remained adamant and willfully refused to comply with them. He relied on the decisions of this Court in Suit Nos NICN/JOS/8/2014 and NICN/ABJ/97M/2016. It was submitted by counsel that the defendants are wrong to thing that they are not bound by this earlier decision of the Court. He submitted that Exhibits A-L contains different complaints made to the defendants on the subject matter which were all ignored. In conclusion, learned counsel submitted that since the Court has the power to take judicial notice of its record, decisions and orders and to apply same in subsequent matters similar to it, the Court is urged to apply same to the present suit and give judgment in favour of the Claimants as per their reliefs.
9. The 1st 4th, 5th and 6th defendants in response filed a thirty-two (32) paragraph counter affidavit deposed to by one Dr Nasir Muhammed that the 1st defendant is a creation of the law and an approved Medical Institution and training center which offers post graduate Residency Training program designed to train specialists with definite competence in professional practice. The 1st defendant operates on the Operation Manual of Sokoto University Teaching Hospital. The Chairman Medical Advisory Committee is in charge of the Clinical training and research activities of the 1st defendant. The Operation Manual established several departments which includes the Laboratory Medicine Department or Clinical Laboratory and not Medical Laboratory Science Services Department and which Department consists of four units namely haematology and blood transfusion; Chemical Pathology; Medical Microbiology and; Parasitology units and each unit is coordinated by a consultant (pathologists or Laboratory physicians). The functions of pathologists are detailed in the Regulations issue by the Medical and Dental Council of Nigeria. Contrary to the assertions of the Claimants, members of the 1st Claimant were issues disciplinary sanctions for their various acts of insubordination exhibited for failure to follow due process at work. The Claimants are employed in the Laboratory Medicine Department to assist Pathologists and the consultant pathologists are the highest level of clinical laboratory professionals with the overall responsibility of supervising Laboratory Medicine. The 1st defendant is made up of different Health Care Professionals working harmoniously according to the level of training as may be assigned in the letter of employment. Medical Laboratory scientists have risen to Director Cadre in line with the Scheme of Service which neither created a department of Medical laboratory science. The Claimants practice only medical laboratory science while the 7th to 10th defendants practice laboratory medicine and the Operation Manual of the 1st defendant did not provide for creation of the department of Medical Laboratory Science. The 1st ,4th, 5th and 6th defendants are not aware of the previous judgments of this Court which are being relied upon by Claimants and it will not serve the interest of justice to grant any of the reliefs of the Claimants.
10. Also filed is a written address in support of the counter affidavit in opposition of the originating summons wherein learned counsel on behalf of the 1st , 4th, 5th and 6th defendants distilled two issues for the determination of this Court thus;
1. Whether the Claimants have made out a case to warrant the grant of the declaratory and injunctive reliefs sought from this Honourable Court.
2. Whether judgment of Court can be enforced against a person who is not a party to a suit.
11. On issue one, it is the submission of Agbanyi Esq, learned counsel for the 1st, 4th, 5th and 6th defendants that the case of the claimants is empty both in law and facts. It was also submitted that the Court can only grant declarations on the strength of a party’s case. He relied on the case of Ogunleye v. Aina & Ors [2010] LPELR-4694 (CA)25, Paras E-G; Mohammed v. Wammako [2017] LPELR-42667(SC). It was the further submission of counsel that there are principles for grant of the declaratory reliefs. He relied on the case Uwandu v. Chinagorom & Ors [2019] LPELR-46909(CA)10-12. It is part of the submission of counsel that the University Teaching Hospital (Reconstitution of Boards, etc) Act Cap U15, LFN 2004 provides for structure of the 1st defendant and therein in Section 5(4) the 5th defendant is given mandate to oversee the activities of the clinical departments and training activities. It was submitted that training activities for medical practitioners to be qualified as consultant pathologists is regulated by the Medical Residency Training Act, 2017. It was further submitted that Section 9(6), (7) and 16 (1) of the Teaching Hospital Act provides that the Management of the defendant has a right to make Regulations, policies and Guidelines as operation Manual for its smooth running and governance and pursuant to which the Operations Manual exhibit UDUTH3. It is his submission that the 1st defendant employed the 3rd, 4th and members of the 2nd Claimants to work in its clinical departments as laboratory scientists, technicians and assistants with definite functions. It was submitted that the National Health Act, 2014 has clearly defined role of medical doctors (pathologist) in the clinical laboratories. See 51 and 52 of the National Health Act, 2014. Counsel then submitted that the Claimants must show the Court that they have a legal right to be contested. He relied on the case Ajibare & Anor v. Akomolafe & Anor [2011]LPELR-3948(CA). He submitted that the Claimant’s request that pathologists should no longer work in the laboratory is like abolishing the specialty of medicine which is outside the power of the Court to do. It was submitted further that what Claimant are asking the Court to do is only act of waving through the forest and did not show any contested legal right by their originating summons and Court has no power to grant injunctive reliefs not backed up by any legal right. He relied on SPDC (Nig) Ltd & Ors v. Nwawka [2003]LPELR-3206(SC)14-15, Paras E-B; Akapo v. Hakeem Habeeb & Ors [1992]LPELR-325(SC)26, Paras A-C. It was equally submitted that by the extant rules that guide the practice of clinical laboratories in Teaching Hospitals that is the Regulation made by the Dental and Medical Council of Nigeria which rules specifies the mode of the practice. Thus it is not the duty of the Claimants to determine the role or job of pathologists that is the 7th-10 defendants who were duly employed by the 1st defendant. It was submitted that declaratory reliefs sought by Claimants are to be lightly granted while placing reliance on the case of Ogundipe v. The Minister of FCT & Ors [2014]LPELR-22771(CA)73-74, Paras D-E and Bagudu v. FRN & Ors [2003]LPELR-5185. It was part of the submission of Counsel that in a declaratory action as this instance the Court must be satisfied notwithstanding the admission of the defendants while relying on Okoye v. Nwankwo [2014]LPELR-23172(SC)71-72, Paras D-B. Counsel submitted further that the depositions in the affidavit in support of the originating summons are mere statements and the Court has been enjoined to refrain from acting on sentiments while referring the Court to the case of FBN Plc v. T.S.A. Industries (Nig) Limited [2012]LPELR-7959(CA)27, Paras D-F. It was thus submitted that Claimant has not supplied any cogent material or evidence in support of the reliefs sought.
12. On issue two, it was submitted that a judgment of Court cannot be enforced against a person who is not a party to it. He relied on Banwat & Anor v. Association of Medical Laboratory Scientists of Nigeria & Ors [2018] LPELR-45275(CA)16-20, Paras F-A. It was submitted further that the judgment of the Court in Suit No NICN/JOS/8/2014 delivered on 5th October 2015 which is being referred to contained general purpose orders which is predicated upon the occurrence of a condition precedent. He relied on the case of Banwat & Anor v. Association of Medical Laboratory Scientists of Nigeria & Ors, supra. It was submitted further that orders of Court must be precise and direct to a party in order to have a binding effect. He relied on the case of Uchiv & Anor v. Sabo & Ors [2015] LPELR-40635(CA)49-52, Paras E-A; Aribisala v. Bello [2016]LPELR-40145(CA)27, Paras C-F. It was thus submitted that Claimants have not established their entitlements to the reliefs sought. The Court was urged to resolve all issues raised in favour of the 1st, 4th, 5th and 6th defendants.
13. The 7th to 10th defendants on the 10th day of March 2020 filed their 29 paragraphs counter affidavit in opposition to the originating summons deposed to by one Dr Abubakar Umar Musa, the 9th defendant in this case wherein it was deposed that Pathologists are all heads of their respective departments and the letters of employment of Claimants clearly states that they were employed in pathology department and are to be reporting to the Pathologists and that management of the 1st defendant reserves the right to post its staff as it deems fit. A Medical Laboratory Scientists is the same as a Medical Technologists with some level of training in clinical laboratory to enable them provide needed help to pathologists. A pathologist is a medical Doctor who has undergone specialists through Residency in pathology/laboratory medicine which training gives them the ability and competence to understand disease process and acquire the test techniques and necessary competencies to carry out test in laboratories. Nigeria being a member of the World Health Organization must also operate using international standards and international best practices. Every member of the Laboratory has clearly defined roles and defined limits. It was further maintained that several decisions have been given against the Claimants and there is even a valid appeal entered at the Court of appeal against the judgments the Claimants are relying on and one of such is Appeal No CA/ABJ/96/2019 where briefs have already been exchanged and the Ruling of this Court in Suit No NICN/ABJ/13/2017 which both the Claimants feigned ignorance of. That the Management of the 1st defendant have been fair and just to the Claimants and puts patient’s interest and safety first in all its actions The Claimants have not suffered any form of injustice contrary to their assertions the Public Service Rules are clear as to the procedure to be adopted where a Public officer feels wronged.
14. Also filed along the counter affidavit is a written address wherein learned counsel on behalf of the 7th -8th defendants raised the following issues for determination;
1. Whether by the doctrine of judicial precedence, hierarchy of Courts, lis pendens, and provisions of Constitutional Right of Appeal, the present suit does not constitute an abuse of processes of this Honourable Court and an attempt to foreclose or render ineffective the appeal before the appellate Court.
2. Whether the Claimants adduced substantial evidence to proof its entitlement to the declaratory reliefs claimed in the Originating summons.
3. Whether the suit as constituted disclosed any reasonable cause of action cognizable by this Honourable Court.
15. On issue one, learned counsel adopted all the arguments in the Notice of preliminary objection. He then submitted further that whenever the Court is called upon to decide on a case, it is the Originating process that would be considered to see if the Court is competent. He submitted that Claimants intentionally failed to disclose the existence of several judgments reached against them and the existence of a valid appeal at the Court of Appeal in order to becloud the mind of the Court. He submitted that by virtue of Section 167(d) of the Evidence Act, 2011 the Claimant deliberately withheld these facts because they knew that it they disclosed it, it would have worked against the. He submitted that the right to appeal is a higher constitutional right. It was submitted that assuming the said judgments were even reached in favour of the Claimants, the victorious party is not allowed to levy execution during the pendency of an appeal. According to the learned counsel, the Court going ahead in spite of the notice of a valid appeal will amount to judicial insubordination and impertinence. He referred the Court to the following cases; S.T.B. Ltd v. Control Resources Ltd [2001] NWLR (Pt 725)518; Nigerite Ltd v. Dalami ( Nig) Ltd [1992]7 NWLR (Pt 253)288; Vaswani Trading Co v. Saavalakh [1972]1ALL NLR P77; Julius Berger ( Nig) Plc v. T.R. Comm Bank [2007]1 NWLR (Pt 1016)540@549. It was submitted further that there is existence of several judgments reached against the appeal and the existence of a pending appeal. He relied on the Ruling of this Court NICN/ABJ/13/2017 and Appeal No CA/ABJ/96/2019. It was also counsel’s submission that paragraph 4 of the affidavit in support is an admission on the part of claimants that this suit is an abuse of Court process. He urged the Court to hold that this suit is an abuse of Court process.
16. Akoja of counsel argued issues one and two together and submitted that the issues in this case will cause the Court to determine whether by the combined effect of the Medical and Dental Practitioners Council Act, 19888 and the Medical Laboratory Science Council of Nigeria, Act No 11, 2003 whether the reliefs sought by Claimant are not merely academic. It was submitted that the Court in interpreting unambiguous provision of a statutes, the words used must prevail and not what the Court says unless giving the words their meaning will lead to absurdity. He relied on the case of Mobil Oil (Nig) Ltd v. Federal Board of Inland Revenue[1977]3 SC, 53. It was submitted further that a law can only be dead when it is repealed and the Claimants do not have a law that expressly repealed the Medical and Dental Practitioners Act, 1988 and the law leans against an implied repeal of a law unless it is impossible for the two law to stand together. He relied on the case of Governor of Kaduna State v. Kogoma [1982]6 SC 87. It was equally the submission of counsel that it cannot be the law that a general law will repeal the provision of a special law and that a law regulating a different body will repeal another law regulating a separate body. Counsel submitted further that a perusal of Section 29 of the Medical Laboratory Science Council of Nigeria Act and the Section 2 (e) of the Medical and Dental Practitioners only reveals the difference in the functions of both professional bodies and not an intent to repeal each other and that though the functions of the two bodies dovetailed into each other, there is no specific area of limitation as Section 29 does not include autopsy and cytology.
17. Leaned counsel also submitted that the claims of the Claimant are declaratory in nature and there is a burden of proof placed on Claimant. He commended to the Court the decision of the Court in Col. Nicholas Ayanru (Rtd) v. Mandilas Limited [2007]10 NWLR (Pt 1043)462@478, Paras C-D. It was submitted that Claimant’s claim that they are not subject to the control of pathologists is at variance with the facts, statutes, training and distinct health delivery services which does not support their claim. It was thus submitted in conclusion that claimants having come seeking declaratory reliefs must succeed on the strength of their own case and which must be aligned with statutory authorities and distinct realities of the health sector which the Claimants failed to do. Also, that Claimants failed to understand the fact that there cannot be two different laboratories and that they are expected to work hand in gloves with the pathologists in the approved hierarchy and structure. The Court was urged to so hold.
18. The 3rd defendant on the 10th day of November, 2020 filed in response to the originating summons a 10-paragraph counter affidavit deposed to by one Nasiru Ahmed wherein it was deposed that the Claimants are autonomous and are subject to the regulations or authority or directives of the 1st and 3rd defendants and that it is the duty of the 1st defendant through the 4th defendant to determine who to haed any of the departments and not for the claimants to decide. It was deposed further that the 3rd defendant is not privy to any judgment neither did it call for the implementation of any judgment contrary to the position of the Claimants in the affidavit in support of the originating summons. It was maintained that it is the responsibility of the Head of every department to assign responsibilities to subordinates in line with the extant Public Service Rules. Claimants are not entitled to the reliefs sought and no reasonable cause of action against the 3rd defendant.
19. Also filed along with the counter affidavit is a written address wherein learned counsel on behalf of the 3rd defendant formulated three issues for determination thus;
1. Whether in view of the facts and documentary evidence before this Court, the Claimant is entitled to the declaratory and indeed all reliefs sought?
2. Whether by virtue of Public Service Rules, the University Teaching Hospital (Reconstitution of Boards) Act and other relevant laws, the claimant herein who are staff of the various Tertiary Hospital, Medical Centre and other Government owned or managed institutions/hospitals are not public servants whose activities are to be regulated by the Public Service Rules and other relevant laws, regulation and policies affecting public servants in Nigeria?
3. Whether the claimants in this suit can use the court to rewrite the provision of a duly enacted statute or Act.
20. On issue one, it was submitted by counsel that a party seeking declaratory reliefs must place sufficient facts before the Court for the grant of same and claimants has failed to establish any fact upon which the scale of probability will show that they are entitled. He commended to the Court the case of A.G. Rivers State v. A.G. Bayelsa [2013]3 NWLR (Pt 1340) 123. It was submitted that declaratory actions are useful and important to ascertain and determine the validity of orders or decisions of inferior Courts of record or tribunals. He relied on the case of Central; Bank of Nigeria v. Jacob Oladele Amao & 2 Ors [2011]Vol 201 LRCN. It was submitted that Claimants failed to pass the test laid down for grant of declaratory action. It was submitted that a the entire suit of the Claimant is premised on speculation. It was submitted that there is nothing before the Court to show that the alleged practice introduced to medical practice in hospitals has affected the quality and standards of healthcare and he that asserts must prove. He relied on Section 131 of the Evidence Act; Next Int Ltd v. Obatoyinbo [2013]FWLR (Pt 701)1549@170, Paras A-B, 1574, Para C.; INEC v. Atuma [2013]11 NWLR (Pt 1366)494.
21. It is equally the submission of the Counsel that the Claimants do not have locus standi to seek the reliefs sought. He relied on Disu v. Ajilowura [2006]14 NWLR (Pt 1000)787. It was submitted that Claimants have not placed any evidence before the Court to show they have sufficient interest or has suffered any injury. He relied on the case of A.G Lagos v. Eko Hotels Ltd [2006]18 NWLR (Pt 10111)383; Senator Abraham Adesanya v. The President of Nigeria [1981]5 SC 112. It was submitted that Claimants are not the body responsible for Medical and Dental Practice in Nigeria nor are they responsible for the regulation of other profession in the Health Sector. It was equally submitted that the Claimants have not placed before this Court how they will be affected differently by the outcome of this case different from any other health professional.
22. On issue two it was submitted that going by the provisions of Rules 160101 of the Public Service Rules 2008 the 1st defendant is a parastatal and is equally governed by the clear provisions of the Public Service Rules. It was submitted that the practice and procedure of the 1st defendant being a parastatal should not be inconsistent with the provisions of the Public Service Rules. He relied on Rule 1601103 of the Public Service Rules. It was submitted that members of staff of government owned hospitals are public servants whose activities are to be regulated by the Public Service Rules and other relevant laws and not any unknown law and that it is unknown for Claimants to assert they ought to be autonomous.
23. On issue three, it was submitted that Claimant cannot use the Court to rewrite the provisions of a statute. He referred the Court to the case of Ehirim v. Imo State I.E.C [2012]50 2 NSCQR15. It was submitted that the whole relief of the Claimant is an unlawful invitation of the Court to rewrite the Public Service Rules, the University Teaching Hospital (Reconstitution of Board) Act, the Medical and Dental Council Act and the Medical Laboratory Council of Nigeria Act. It is further submitted that there is no provision in any known law or statute including the ones listed which gives the power of making rules and regulation for hospital practice as well as regulating the practice or activities of the 1st defendant on the individual profession in the hospital. It is part of the submission of the learned counsel that where words used are not ambiguous, they should be given their direct interpretation. He referred the Court to the following cases; Contecna v. Ivory Bank [2006]26 NSCQR 528@542-543; Unipethol v. Edo State Board of Internal Revenue [2006]26 NSCQR 211@219. Counsel also submitted that Claimants do not have the power to interfere with the career progression of other professionals in the health industry, or who to head any department in any hospital. It was submitted that it is unknown to law that the defendants must consult the Claimants before doing their work. He relied on Section 4 of the National University Council Act. The Court was thus urged to resolve the issues in favour of the defendants and refuse the Claimant’s case as it is utopic, speculative and academic.
24. Upon a careful consideration of the Originating Summons and the accompanying processes filed in this suit by the Applicant, the counter affidavit of all the defendants including their respective written addresses in support of same. It is in the humble view of the Court that the issues apposite for the Court’s determination are;
1. Whether the members of the 1st Claimants in the Usmanu Dan Fodio University Teaching Hospital are entitled to professional autonomy and self-determination in the practice of their profession in the Usmanu Dan Fodio University Teaching Hospital?
2. Whether the Claimants are entitled to the reliefs sought?
25. Before addressing issue one, let me say that issues one and three in the written address of the 7th to 10th defendants in support of their counter affidavit in opposition to the Originating Summons as it relates to the suit of the Claimants being an abuse of Court process and without reasonable cause of action are contained in the Notices of Preliminary Objection filed by the 1st, 4th, 5th and 6th defendants on one hand and the 7th to 10th defendants on another hand. Those issues have been extensively dealt with in the Ruling of this Court delivered on the 16th day of June, 2021 and as such this Court has become functus officio on those issues. Therefore, this Court desist from addressing same again in that it cannot sit on an appeal on its own Ruling or reopen or relitigate an issue which it has decided to finality which is why this Court will not address those issues again though forms part of the written address in this case.
26. In addressing issue one, the Medical Laboratory Science Council of Nigeria Act 2003 (hereinafter referred to as the MLSCNA) which is the law that governs the practice of the profession of the Claimants have been thoroughly perused by this Court from the very first Section 1 to the last Section 30. In fact, of great importance is Section 4(a) and (b) which provides that the functions of the Board of the Medical Laboratory Science Council Nigeria include to; determine, from time to time, the standard of knowledge and skill to be attained by persons seeking to become Medical Laboratory Scientists, Medical Laboratory Technicians and Medical Laboratory Assistants (referred to in the MLSCNA as scientists, technicians and assistants respectively) and; regulate the practice of Medical Laboratory Science in Nigeria. Section 7 (b) goes further to provide that the Board shall have power to regulate the enrolment of persons seeking to be a member. A particular part of the law that will captivate the attention of this Court are Sections 10, 18 and 22 (2) which provide thus;
10. A person admitted into the profession by the Council may be enrolled as-
(a) a Fellow;
(b) an Associate; or
(c) a Student Member,
and shall be accorded all the privileges approved by the Council by its rules, provided that no student member shall hold office under this Act.
(2) Where a person is enrolled with the Council he shall, if he is a Fellow or an Associate but not otherwise, be entitled to the use of such letter after his name as may be authorised by the Council and shall, when enrolled, receive a certificate in such form as the Council may approve for the purpose.
(3)The Board may enroll any person as an Honorary Fellow, who in its opinion has substantially contributed to the advancement of the objects of the profession.
18.
(1) Subject to subsection (2) of this section, a person shall be deemed to be actively engaged as a member of the Council if, in consideration of remuneration received or to be Subject to subsection (2) of this section, a person shall be deemed to be actively engaged as a member of the Council if, in consideration of remuneration received or to be received, and whether by himself or in partnership with any other person-
(a) he holds himself out to the public as a scientist under the Act; or
(b) he offers to perform or performs any service involved knowledge of medical laboratory sciences; or
(c) he renders professional service or assistance in or about matters of principle or details relating to medical laboratory science procedure or the processing of data; or
(d) he renders any other service which may by regulations made by the Board, be designated as service constituting practice as a medical laboratory scientist under this Act.
(2) Subject to the provision of this Act, no person not being a fully registered medical laboratory scientist under this Act shall be entitled to hold any appointment in the Public Service of the Federation or State or any public or private establishment, body or institution, if the holding of such appointment involves the performance by him in Nigeria of any act pertaining to the profession of medical laboratory sciences for gain.
Section 22(2) provides thus;
(2) A person who is not a member of the profession shall not practise 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 case of a person falling within section 17 of this Act-
(a)this subsection shall not apply in respect of anything done by him during the period of three months mentioned in that section; and
(b) if within that period he is notified that his application has not been approved, this subsection shall not apply in respect of anything done by him between the end of that period and the date on which he is registered or is notified.
27. The law stands sure that in the interpretation of statutory provisions, where the words used are unambiguous, the words used must be given their plain and ordinary meaning. See the following cases; A.D.H. Ltd. v. A. T. Ltd. [2006] 10 NWLR (pt. 898) 635; N.P.A. Plc v. Lotus Plastics Ltd [2005] 19 NWLR (Pt. 959) 158 and Buhari v. Obasanjo [2005]13 NWLR (Pt. 941) 1. There is no gainsaying that all the provisions of the MLSCNA particularly the Sections referred to above and earlier operate to give professional autonomy to the members of the Claimants’ profession who are duly registered as members of the profession. The Scheme of Service is made pursuant to the MLSCNA to effectuate the professional autonomy given to the Claimants.
28. The Usman Dan Fodio University, Sokoto was established by the Usmanu Dan Fodio University, Sokoto, Cap. U14. Laws of the Federation of Nigeria, LFN 2004 (hereinafter referred to as ‘the University Act’). Section 7(2) (a) of the University Act provides that Without prejudice to the generality of subsection (1) of this section and subject as therein mentioned, it shall in particular be the function of the Senate to make provision for the establishment, organization and control of campuses, colleges, faculties, departments, schools, institutes and other teaching and research units of the University, and the allocation of responsibility for different branches of learning. One of the Colleges set up by the Senate in pursuance of that power is the College of Medicine for the training of aspiring medical students. The University Teaching Hospitals (Reconstitution of Boards ETC) Act, Cap U15, LFN, 2004 (hereinafter referred to as the UTH Act) provided for a uniform administrative structure, composition and function of the Management Board of all Teaching Hospitals controlled by the Federal Government. The Teaching Hospitals referred to or governed by the UTH Act are contained in the Schedule. Item (k) in the Schedule is the 1st defendant, the Usmanu Dan Fodio University Teaching Hospital. The provisions of Section 7 (1) (a) of the UTH vests in the Board of the Teaching Hospital the power to equip, maintain and operate the hospital so as to provide facilities for diagnosis, curative, promotion and rehabilitative service in medical treatment. Sub paragraph (c) of Section 7 (1) also vests in the Board of the Teaching Hospital the power to construct, equip, maintain and operate such clinics, out-patient departments, laboratories, research or experimental stations and other like institutions as the Board considers necessary for the efficient functioning of the hospital. The effect of this is that the Board of the Teaching Hospital is the one vested with power to construct, equip and operate out patients departments, laboratories, research stations and any other related institutions. Section 5(2) (b) of the UTH Act vests in the Chief Medical Director the duty of the execution of policies affecting the day to day management of the affairs of the Hospital. Section 5 (3) (a) and (b) provides that there shall be a Director of Administration who shall be appointed by the Board and will function as its Secretary and who shall be responsible to the Chief Medical Director for the effective functioning of all the administrative divisions of the Hospital. The UTH Act also goes further by the provisions of Section 5(4) that there shall be for each Teaching Hospital, a Chairman of Medical Advisory Committee who shall be appointed by the Board and responsible to the Chief Medical Director for all the clinical and training activities of the Hospital.
29. I am not unmindful of the depositions of one Dr Nasir Muhammad in paragraphs of the counter affidavit of the 1st, 4th, 5th and 6th defendants to the originating summons that the 1st Defendant operates on an Operational Manual herein as Exhibit UDUTH 2 and which Manual Established the Clinical Departments which include Medicine and Surgery; Pediatrics and other departments including Laboratory Medicine. According to him the Laboratory Medicine Department established is equally referred to as clinical laboratory and not Medical Laboratory Science Services Department and which Department consists of four major units Haematology & Blood Transfusion Unit, Chemical Pathology Unit; Medical Microbiology & Parasitology Unit; Morbid Anatomy Unit. In the affidavit of Muhammad Sanni Kasimu, specifically in paragraphs 4(j) and (K), references were made to the Federal Government approved Scheme of Service for Medical Laboratory Scientists marked as Exhibit V. Regulations 2.6.3 of the Schemes of Service which is made to effectuate the professional autonomy granted Medical Laboratory Scientists, provides that the Chief Medical Laboratory Scientist on Grade Level 14 has the duty of Taking Charge of Administration of a whole Medical Laboratory speciality e.g Medical Microbiology Laboratory, Clinical Chemistry Laboratory, Haematology Laboratory, Blood Group serology laboratory, Virology Laboratory and Parasitology laboratory. From this provision of the Scheme of Service it is clear that Medical Microbiology, Clinical Chemistry, Haematology, Blood Group serology, virology and parasitology are all Medical Laboratory specialty. The analogy to be drawn from that is that it does not matter what name the Operation Manual gives to the Department whether as Laboratory Medicine/ Clinical Laboratory or Medical Laboratory Science Services Department, the Units which are; Haematology & Blood Transfusion Unit, Chemical Pathology Unit; Medical Microbiology & Parasitology Unit; Morbid Anatomy Unit are all Medical Laboratory specialty. In fact this view is further reinforced by the provisions of Section 29 of the MLSCNA which defines Medical Laboratory Science thus;
(a) means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research; and
(b) includes medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliative cytology, parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council.
The above provision of the MLSCNA is succinct, clear, unambiguous and incapable of dual or multiple meaning. Consequently, effect must be given to its ordinary meaning and that is that medical microbiology, haematology, blood transfusion science, chemical pathology, parasitology, and histopathology are part of Medical Laboratory science.
30. One fact stands sure from the evidence in this case, is the fact that the Operation Manual that is Exhibit UDUTH 2 was made before the recognition of the professional autonomy of the Medical Laboratory Scientists by the MLSCNA and the Scheme of Service. Thus, it cannot be said to represent the current reality. In fact, in my view, since the MLSCNA recognizes the professional autonomy of the Medical Laboratory Scientists and the Scheme of Service was made to effectuate such autonomy, the Operation Manual which obviously on its face came into force in January 1989 before the coming into force of MLSCNA and the Scheme of Service ought to have been amended after these law and instruments came into force to take cognisance of the professional autonomy granted medical laboratory scientists since the Units which make up the Department of Laboratory Medicine have been shown above to be specialty of the Medical Laboratory scientists. The UTH Act pursuant to which the Operation Manual is made is an Act of the National Assembly just like the MLSCNA. The Scheme of Service is made pursuant to the MLSCNA to effectuate the professional autonomy given to the Claimants. Sections 5(2)(b) and (3) (a) and (b) and 7(1(a) and (c) of the UTH Act cannot thwart the operation of the MLSCNA and its scheme of Service made pursuant thereto which grants professional autonomy to the Claimants’ Association. This Section must be read in line with the provisions of the MLSCNA, 2003 together with its Scheme of Service made pursuant to the Act which grants professional autonomy to the Claimants.
31. I am mindful of the further deposition in the counter affidavit of the said Dr Nasir Muhammad that the Medical and Dental Council of Nigeria issued a Regulation marked exhibit UDUTH 3 which contains the functions of a Consultant Pathologist as Head of Laboratory Medicine Department. This Court by virtue of Section 122 (2) (a) of the Evidence Act, 2011 takes judicial notice of the provisions of Section 1(2) (e) of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (MDPA)which provides that the Medical and Dental Council of Nigeria (MDCN) 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 Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology. I have perused the contents of the Regulations and it provides that only Consultant/Medical Doctors who are Pathologists are entitled to Head the Clinical Laboratory also known as Medical Laboratory in hospitals. It is thus, clear that it was pursuant to Section 1(2)(e) of the MDPA that Exhibit UDUTH3 was made, consequent upon which the 7th and 8th defendants were appointed.
32. It is worthy of note that by the provisions of Section 29 of the MLSCNA captured above medical Laboratory Science includes; medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativeytology, parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council. Thus, the areas which the Regulation covers are no doubt areas of medical laboratory science. In fact, paragraph 18 of the counter affidavit of the 1st, 4th, 5th and 6th defendants agrees that another name for Laboratory Medicine as used in the Operation Manual is Clinical Laboratory. The said Regulation clearly states that Clinical laboratory is also known as Medical laboratory. Thus, it is clear that Clinical Laboratory can also be called Medical laboratory which is what is christened as Laboratory Medicine in the 1st defendant. The point I am making here is that going by the contents of the Operational Manual, the Regulations and the fact alluded to in paragraph 10 of the counter affidavit of the 1st, 4th, 5th and 6th defendants, the department of Laboratory Medicine in the 1st defendant is the same as Clinical Laboratory which can also be called Medical Laboratory according to the Regulation. Hence the department of Laboratory Medicine in the 1st defendant can also be called Medical Laboratory Department going by the contents of the Regulation. The only difference is the nomenclature adopted in the 1st defendant. Thus, while the 1st defendant by its Manual chooses to call it Laboratory Medicine Department, the Regulations chooses to call it Clinical/medical Laboratory. One fact is clear from all these and all reasoned above and that is that the Units that make up this Laboratory Medicine Department in the 1st defendant are specialty of the Medical Laboratory Science. Thus, one can validly say that the Department of Laboratory Medicine in the 1st defendant can also be christened Department of Medical Laboratory Department. Howbeit, it is clear from Regulations 2.6.3 of the Schemes of Service which is made to effectuate the professional autonomy granted Medical Laboratory Scientists that Medical Laboratory specialty includes Medical Microbiology Laboratory, Clinical Chemistry Laboratory, Haematology Laboratory, Blood Group serology laboratory, Virology Laboratory and Parasitology laboratory as stated supra. In effect, Medical Microbiology, Clinical Chemistry, haematology, blood group serology, virology and parasitology are all specialty of the Medical laboratory. This is in consonance with the provisions of Section 29 of the MLSCNA. The effect of which is that, it does not matter the nomenclature used by the 1st defendant, the department of the Laboratory Medicine in the 1st defendant is the same thing or does the same work as the department of Medical Laboratory Science in any other establishment. The only difference is nomenclature given in the 1st defendant. It is in view of this that I find that the Medical laboratory scientists already have an existing department in the 1st defendant but the only issue is the nomenclature given to the said department in the 1st defendant which is Laboratory Medicine. In my view given the above reasoning Laboratory Medicine Department is the same as Medical Laboratory Department. I so hold.
33. Be that as it may, there is no gain saying that the MDPA which contained the above provision in Section 1(2)(e) pursuant to which the regulation was made came into force before the MLSCNA which recognizes the professional autonomy of the Claimants. The said Regulation though was made after the coming into force of MLSCNA. It is my respectful view that the MDCN in making the Regulation which it is within its power to make must take cognizance of and give effect to the provisions of the MLSCNA and the Scheme of Service in making such Regulation which is to guide the operation of clinical/medical laboratory. Thus, in making exhibit UDUTH3 for the operation of clinical laboratory the MDCN ought to give cognizance to the professional autonomy and right to rise to the level of Head the Department of Laboratory Medicine also rightly called in this judgment as Medical Laboratory. The fact that the MDCN has Power to make regulations for the operation of clinical/medical laboratory does not give it the right to act contrary to MLSCNA by stating that a Consultant Medical Doctor who is not a Medical Laboratory Scientist be the Head of the Department.
34. It needs to be emphasized that exhibit UDUTH 3 that is the Regulation was issued by the MDCN in exercise of the powers conferred on it by Section 1(2)(e) of the MDPA. Clearly therefore, the Regulations, is a subsidiary legislation. See the following cases; Juda & Anor v. Sallau & Ors [2019] LPELR-50979(CA)1@14-15, Para A; Best Njoku & Ors v. Chief Mike Iheanatu [2008] LPELR-3871. The efficacy of a subsidiary legislation properly made is therefore not in doubt, this is also supported by Section 18 of the Interpretation Act, LFN 2004. However, it must be understood that the Regulation, exhibit UDUTH3 being a subsidiary legislation derives its validity and authority from a substantive law, in this case as MDPA. See Governor of Oyo State v. Folayan [1995] LPELR-3179(SC)1@59, Para C. The point must be made that the MDPA and the MLSCNA are both Acts of the National Assembly but the MLSCNA came after the MDPA. The effect of which is that any provisions of the MDPA or its subsidiary legislation which is repugnant to the provisions of the MLSCNA must of necessity give way especially as it relates to the practice of clinical/medical laboratory science. It has never been the case for the provisions of a subsidiary legislation to render nugatory the relevant provisions of an Act of the National Assembly especially MLSCNA which came into force after the MDPA (which is the law from which exhibit UDUTH3 derives its validity) to give professional autonomy to the Medical Laboratory Scientists whose field are specifically captured in Section 29 of the MLSCNA. Quite apart, there is this general principle that a subsidiary legislation can have no wider and effective force than the one which gives its force. Besides, common sense and logic dictates that a child cannot be older than his father. Exhibit UDUTH3 cannot have more binding force than the MDPA which gives it force. The MDPA and the Regulations made thereunder since the coming into force of the MLSCNA must of necessity give way to the professional autonomy granted the medical laboratory scientists in MLSCNA and the Scheme of Service made to effectuate same. It is my respectful view that the provisions of the Regulations made pursuant to Section 1 (2) (e) of the MDPA is so repugnant to the provisions of the MLSCNA that both of them cannot be given effect at the same time. Besides, the MLSCNA is superior in status to the Regulations which is made under a statute. As such the MLSCNA which is a substantive statute and an act of the Parliament will of necessity prevail because the Regulation which is a subsidiary legislation cannot override clear and mandatory provisions of Sections 18(2) and 22 (2) of the MLSCNA. It was wrong of the MDCN to issue exhibit UDUTH3 in contravention of the rights of the Medical Laboratories Scientists as protected by the MLSCNA and the Scheme of service which gives them the right to professional autonomy and to also rise through the ladder to Head the departments relating to medical laboratory, the units in the laboratory medicine of the 1st defendant inclusive.
35. Also, in paragraphs of the 1st, 4th, 5th and 6th defendants counter affidavit to the originating summons specifically paragraphs 20-26 of the counter affidavit which is to the effect that the Claimants do not have the right to aspire to be Head of the departments of Laboratory Medicine but are only employed to offer help to the Pathologists who are Head of the departments while the Medical Laboratory Scientists that have risen to be Deputy Directors are only acting in line with their Scheme of Service. May I point out that by the provisions of Regulations 2.6.3 of the Schemes of Service which is made to effectuate the professional autonomy granted Medical Laboratory Scientists, the Chief Medical Laboratory Scientist on Grade Level 14 has the duty of Taking Charge of Administration of a whole Medical Laboratory specialty e.g Medical Microbiology Laboratory, Clinical Chemistry Laboratory, Haematology Laboratory, Blood Group serology laboratory, Virology Laboratory and Parasitology laboratory. The clear meaning of the above is that each of those Units or laboratories can be taken Charge of by a Medical Laboratory Scientist specifically the Chief Medical Laboratory Scientist on Grade Level 14. Also, by the provisions of the Scheme of Service (Regulation 2.9) the Director, Medical Laboratory Services on Grade level 17 is saddled with the duty of taking charge of the General Administration of the Medical Laboratory Services Department (which is christened Laboratory Medicine in the 1st defendant). Thus, it cannot be true that members of the 1st Claimant are not entitled to Head the Department of Laboratory Medicine). Besides Section 18(1) (2) and 22 of the MLSCNA are clear as to who has the right to practice and accept any appointment in the Public Service in respect of the medical laboratory science which scope has been specifically defined by Section 29 of the MLSCNA. There is no evidence before this Court that the 7th to 10th defendants are registered with the Medical Laboratory Science Council of Nigeria whether as fellow, Associate or Student member and entitled to practice their respective fields which is the field of medical laboratory science by Section 29 of the MLSCNA. Thus, they do not have the right to either be in the department or Head the department unless they are shown to have been registered with the Medical Laboratory Science Council of Nigeria. In fact, in my view the mere fact that a Medical Doctor has sufficient knowledge in just one of the branches of Medical laboratory namely Pathology and has become a consultant in that field does not give him a right to Head the Medical/Clinical Laboratory/Laboratory Medicine because Medical Laboratory is broader and involves more than just pathology, it includes, haematology, virology, blood transfusion, medical Microbiology, Clinical Chemistry, histochemistry, immunology, cytogenetic, exfoliative-cytology, parasitology, forensic science, molecular biology, etc. The medical laboratory scientist is the one with knowledge in these fields and not Consultant Pathologists or laboratory Physicians.
36. Let me also point out here that I do not feign ignorance of the submissions of learned counsel on behalf of the 7th to 10th defendants at page 819 of the record that the functions of both professional bodies under the MDPA and MLSCNA dovetailed into each other and there is no specific area of limitation in Section 29 of MLSCNA as it does not cover autopsy and cytology. The definition of Medical laboratory science in Section 29 of the MLSCNA captured earlier in this judgment specifically includes what is termed exfoliative cytology and counsel in this case did not submit that exfoliative cytology is different from the cytology referred to in Section 1(2) (e) of the MDPA, while it is true that it does not include autopsy. Let one even say exfoliative cytology mentioned in Section 29 of the MLSCNA is different from cytology mentioned in Section 1 (2) (e) of the MDPA, the only inference that can be drawn from this is that any cytology that is not exfoliative and autopsy which is not mentioned as part of medical laboratory science are the only ones excluded and in which case the Medical and Dental Council have exclusivity to and can be practiced by Doctors and regulated by the Medical and Dental Council of Nigeria while others mentioned involves the practice of medical laboratory science which by Sections 18(2) and 22(2) of the MLSCNA is exclusive to only medical laboratory scientists. It will be unconscionable on the part of this Court to now say that just because autopsy is not included as part of medical laboratory science in Section 29 of the MLSCNA, the Medical and Dental Council of Nigeria can issue regulations in breach of the right of Claimants in other areas which are specifically mentioned as practice areas of medical laboratory science. In my view, the only inference to be drawn from the exclusion of autopsy in Section 29 of the MLSCNA is that autopsy is still within the realm and reach of the Medical and Dental Council of Nigeria to regulate and as such an autopsy laboratory can be created separate from medical laboratory and by the Regulations could be headed by a consultant pathologist who is a Medical Doctor because that is not within the realm of medical laboratory science in Section 29 of the MLSCNA.
37. In Nigeria, the situation is clear by the prevailing provisions of the MLSCNA. The law is unambiguous in Nigeria and has provided that the profession of the Claimants is autonomous. Sections 18(2) and 22(2) of the MLSCNA. See the judgment of this Court on this subject matter in suit No NICN/ABJ/284/2014; Nigerian Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v. Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors; one of the judgments relied upon by the Claimants and which this Court is empowered to take judicial notice of and which I am in total agreement with the very sound reasoning expressed in it. The above is the position in Nigeria and it stands unless and until the law is repealed or modified or amended by an Act of the National Assembly. See the case of General Sanni Abacha &Ors v. Chief Gani Fawehinmi [2000]6 NWLR (Pt 660) 228. The law has clearly given the Medical Laboratory Scientists clear professional autonomy going by the provisions of Sections 18 (2) and 22(2) of the MLSCNA. The law having granted only the members of the Claimants profession power to practice their profession shall be construed as also giving them powers to Head their departments in order to give credence to the autonomy granted them. See Section 10 (2) of the Interpretation Act, Laws of the Federation of Nigeria, LFN 2004. The 1st 4th and 5th defendants in this suit, in exercise of their powers to manage and superintend the Affairs of the Hospital under the UTH Act which includes the incidental powers to deploy staffer to appropriate department and appoint departmental heads must bear in mind the profession of the Claimants. As such, the 4th defendant in conjunction with the 5th defendant (both who are members and Secretary of the 1st defendant respectively) must take cognizance of the legitimate rights and privileges of the profession of the Claimants from the moment same has been recognized and created by law vide the MLSCNA. The 4th defendant through the instrumentality of the 5th defendant, cannot therefore post those who are not Medical Laboratory Scientist to Head the department of Clinical/Medical Laboratory herein christened as the Department of Laboratory Medicine neither can they post any other professional to do the work of a Medical Laboratory Scientist. The profession of the Claimants should be independent and free from the control or authentication of any other profession.
38. I do not also lose sight of the deposition of the 7th to 10th defendants in paragraph 11(v) of their counter affidavit in opposition to the originating summons wherein it was deposed that Nigeria being a member of WHO and global community operate using international standards and best practice and all over the world Pathologists trains and work in the Laboratory and must review, vet and sign all results produced. Let me say that the defendants did not place before this Court any Convention, Protocol or Instrument showing that the international standard or international best practice in Health care is that Pathologists who are Medical Doctors with specialized trainings according to paragraph 11(i) of the counter affidavit must work in Laboratories and be the Head of such Laboratories. It is the duty of he who asserts to prove whatever facts he has averred. See; Helios Towers Ltd. v. Bello [2017] 3 NWLR (Pt. 1551) 93; Oak Pensions & Anor v. Olayinka [2017] LPELR-43201 CA; thus, paragraph 11(i) of the 7th to 10th defendants counter affidavit is bereft of evidence and thus discountenanced.
39. I am mindful of the submission of learned counsel on behalf of 1st, 4th, 5th and 6th defendants in paragraph 2.10 of the written address in support of their counter affidavit in opposition to the originating summons wherein he placed reliance on National Health Act, 2014 (hereafter NHA) stating the role of Pathologists in Laboratory Medicine. The said law which was signed into law on the 31st day of October, 2014 is to provide a legal framework for the regulation, development, and management of Nigeria’s Health System. I have gone through the whole of the 65 Sections of the said NHA and I cannot find anything relating to a Consultant Pathologists being the Head of Department of Medical Laboratory. Learned counsel had relied on Sections 51 and 52 of the NHA. Let me say that I have read those two Sections comprehensively I cannot find any such provision where the right of Pathologists as Head of the Laboratory is protected. In fact, Section 51(1) (b) (i) of the NHA provides that a person shall not remove tissue from a living person for transplantation in another living person or carry out the transplantation of such tissue except on the written authority of the Medical Practitioner in charge of clinical services in the hospital or any other Medical Practitioner. In fact, subparagraph (ii) goes further to provide that in case there is no Medical Practitioner in charge of the clinical services at that hospital a Medical Practitioner authorized thereto by the person in charge of the hospital shall give the permission. Section 52 (1) further provides that only a registered Medical Practitioner or Dentists may remove any tissue from a living person, use tissue so removed for any of the purposes stated in the Act in or transplant tissue so removed into another living person. In the same vein subsection 2 of that Section 52 provides that only a registered Medical Practitioner or Dentist or a person acting under the supervision or on the instructions of a Medical Practitioner or Dentist, may administer blood or a blood product to, or prescribe blood or a blood product for a living person. I am yet to understand how these provisions gives a Pathologist the right to Head a Medical Laboratory. For all that it is worth the fact that Section 51 of NHA provides that the permission of a Medical Practitioner in charge of the clinical services in the hospital is requested for the removal of a tissue from the body of a living person for transplant does not mean that a Pathologist be the Head of Medical Laboratory. In fact, from my own respectful view tissues are removed for transplant by surgery and not in the Medical laboratory. Also, clinical services includes not only Medical/Clinical laboratory but also Medicine Obstetrics, Surgery, Paediatrics, Radiology, community health, dental and maxillofacial, out-patient and Casualty. Thus, reference to the Medical Practitioner in charge of clinical services cannot be interpreted to mean that a Consultant Pathologist should Head the Medical Laboratory Department herein christened as Laboratory medicine Department. So that Section in the NHA does not even relate to the issues of Medical/Clinical laboratory or Laboratory medicine at all. Also, the mere fact that Section 52 (2) provides that only a Medical Practitioner or Dentists or person acting under the supervision of the Medical Practitioner may administer blood or a blood product to, or prescribe blood or a blood product for a living person does not in any way mean that Pathologists must Head the medical laboratory. It is the Medical Laboratory Scientist that screens the blood and not the Pathologist. In my own little knowledge, in fact that provision allows a person who is not a Medical practitioner or dentist to administer or prescribe blood for a living person only that he must do so under the supervision of a medical practitioner. I am yet to understand how this can be interpreted to mean that Pathologists should practice medical laboratory science or be allowed to Head the medical laboratory. The submission of learned counsel is clearly misconceived.
40. The point must equally be made that this Court in the determination of this case is equally saddled with the responsibility of interpreting the previous judgments of this Court in line with its judicial powers. The Court in the case of Adekunle v. Adedeji [2014]LPELR-22342(CA) have held that it is part of the judicial function of the Court to interpret judgments when it is called to do so. It must also be noted that by the provisions of Section 254C(1) (j)(iii) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 7(1)(c) (v) of the National Industrial Court Act, 2006, this Court is clothed with exclusive jurisdiction in respect of matters relating to the determination of any question as to the interpretation and application of any award or judgment of the Court. This Court also has to decide whether it is in agreement with its previous judgments on the subject matter of this suit as it pertains to the members of the 1st Claimant in several institutions and parastatals and whether same applies to the case at hand. It is in evidence particularly vide exhibits A and B in the affidavit in the originating summons that the Claimants before now have written several complaints to the defendants to implement the previous judgments of this Court which grants professional autonomy to members of the 1st Claimant in several institutions and domesticate same in the 1st defendant which request the defendants have refused to implement. In the exercise of this right and having read the pervious judgments of this Court as it pertains to the right of members of the 1st Claimant to practice their profession and the right to Head their department, this Court is of the humble view that going by those decisions two of which are by my humble self. Going by the decision of this Court in Suit No NICN/AK/35/2014; The Incorporated Trustees of the Association of Medical Laboratory Sciences of Nigeria and Anor v. The Hon Attorney General of the Federation and Minister of Justice which judgment was delivered on the 9th day of October, 2019, a copy of which is annexed to Claimants’ Reply to Counter affidavit of the 7th-10 defendants, the Association of the Claimants can only exercise and enjoy the professional autonomy granted them under the MLSCNA, if and only if they are free from the control of the Consultant Pathologists who are not medical scientists but Medical Doctor going by the Regulation that is exhibit UDUTH3. I bear in mind the submission of learned counsel on behalf of the 1st, 4th, 5th and 6th defendants in the written address in support of the counter affidavit that a judgment cannot be enforced against a none party. Yes! it is true that a judgment of Court cannot be enforced against a none party. However, learned counsel clearly misconceived the import of enforcement of judgment. Claimants in this case are not asking this Court to enforce the previous judgments against the defendants, in fact what they seek is an interpretation of those judgments as it affects the right of members of the 1st Claimant and decide whether the Claimants who are also Medical laboratory scientists are entitled to take benefit of the decisions. In essence, they want the Court to interpret those judgments and apply the same principles therein to the case at hand. Enforcement of judgments is clearly different and is clearly governed by the provisions of the Sheriffs and Civil Processes Act, Cap S6 LFN 2004, Judgment Enforcement Rules and sometimes the rules of the Court. This case is purely on the interpretation of those judgments as it affects the rights of the members of 1st Claimant and not one meant to enforce those judgment and also involves the interpretation of other relevant laws as they affect the rights of the Claimants.
41. I am equally in total agreement with the reasoning elucidated as per the Headship of the department in question in the Obafemi Awolowo University Teaching Hospital (which is in this case christened Laboratory Medicine Department) in the earlier Judgment in Suit No NICN/ABJ/284/2014 Nigerian Union of Pharmacists, Medical Technologists and Professionals Allied to Medicine & Anor v. Obafemi Awolowo University Teaching Hospitals Complex Management Board & 6 Ors delivered on the 27th January, 2016; particularly pages 27-30 of the judgment of this Court which reinforces my position that the Claimants are entitled to Head their department themselves which is the department of Laboratory Medicine already existing in the 1st defendant thus dispensing with the need to create a separate department. Thus, the defendants ought to recognize the right given to the Claimant by virtue of that judgment. The members of the Claimants’ Association heading their departments themselves are incidental to the powers given to them only to practice their profession. I am equally in total agreement with the reasoning as per the rights of the Medical Laboratory Scientists to Head their various departments free from the control of Pathologist who are Medical Doctors in the earlier Judgment of this Court delivered by my humble self in Suit NICN/ABJ/324/2019: Dr Yashim Nuhu Andrew and Anor v. Honourable Attorney General of the Federation and Minister of Justice Federal Ministry of Justice, Abuja and others which judgment was delivered on the 18th day of March, 2021. The point must be made that none of all the above judgments of this Court and other relevant ones have been set aside by the Appellate Court and thus remain valid and subsisting. See the following cases; Fidelity Bank v. The M.T. Tabora & Ors [2018] LPELR-44504(SC)1@6-14, Para B; Labour Party v. INEC [2009] 6 NWLR (Pt. 1137) 315; Idris v. ANPP [2008] 8 NWLR (Pt.1088) 1 and; Komalafe v. Omole [1993] 1 NWLR (Pt. 268) 21. As such, those decisions represent the current state of affairs and must be obeyed by Medical Doctors/Pathologists and Heads of various institutions affected until set aside. In view of all the reasoning in this case, I resolve the questions for determination in favour of the Claimant.
42. Flowing from the above are the consequential reliefs and for the sake of clarity, I declare and order as follows;
1. That by virtue of the clear provisions of the MLSCNA granting professional autonomy to the Medical Laboratory Scientists and the Scheme of Service made to effectuate same, the Claimants are entitled to practice their profession in the Usmanu Dan Fodio University Teaching Hospital, Sokoto State free from the control of Medical Doctors/consultants Pathologists and are also entitled to aspire to Head their various laboratories and departments in line with the Scheme of Service and these rights must be recognized by all the defendants.
2. That going by the interpretation of the previous judgments of this Court the Claimants being the Association of the Medical Laboratory Scientists and members of the Association respectively are entitled to take benefit of the previous judgments of this Court as regard the professional autonomy granted Medical laboratory scientist. Thus by virtue of the previous judgments of this Court recognizing the professional autonomy of the Medical Laboratory scientists and their rights to Head their various departments/laboratories in several other institution, the Claimants are free to practice their profession free from the control of the 7th -10th defendants and any other Consultant Pathologist who is not a registered member of the profession.
3. That Medical laboratory scientists are entitled to have their own department and Head same in line with the Scheme of Service which department is already created in the 1st defendant but named Laboratory Medicine which is also referred to as Clinical Laboratory or Medical Laboratory.
4. That the 7th-10th defendants not being Medical Laboratory Scientists or registered members of the Medical Laboratory Science Council of Nigeria are not entitled to either practice as medical laboratory science or Head the Department of Laboratory Medicine of the 1st defendant as the specialty or operations/units of the department ranging from medical microbiology, haematology, blood transfusion, chemical pathology, parasitology within the field of medical laboratory science wherein only members of the first Claimant are entitled to practice and Head.
5. That the 1st defendant and specifically the 4th, 5th and 6th defendants cannot post any other person not being a medical laboratory scientist or a registered member of the Medical Laboratory Science Council of Nigeria to either practice or Head the department of Laboratory Medicine in the 1st defendant or whatever name it is subsequently christened so far what it deals with is within the specialty of medical laboratory science as captured earlier in this judgment in breach of the rights of the Claimants and other Medical laboratory Scientists in the 1st defendant. The 1st, 4th, 5th and 6th defendants are hereby restrained from posting anyone who is not a medical laboratory scientist or registered with the Medical Laboratory Science Council of Nigeria to head the Department of Clinical/Medical Laboratory/ Laboratory Medicine in the 1st defendant.
6. The 7th to 10th defendants and anyone who is not a Medical Laboratory scientist or a registered member of the Medical Laboratory Science Council of Nigeria cannot practice medical laboratory science or head the Department of Clinical/Medical Laboratory/ Laboratory Medicine in the 1st defendant.
43. Parties are to bear their respective costs.
44. Judgment is accordingly entered.
Hon Justice Oyebiola O. Oyewumi
Presiding Judge
