The National Industrial Court, per Hon. Justice z. M. Bashir has finally given judgment in the case between the Incorporated Trustees, Pharmaceutical Society of Nigeria (PSN ) v. . President and Commander in Chief, Federal Republic of Nigeria, Abuja and anor with suit N0: NICN/ABJ/80/2015.
The case began with an application by the Applicant by a motion exparte dated and filed on the 18th day of March, 2015 and brought under the relevant laws, sought leave of the court to apply for an Order of certiorari. The Motion was supported by a 17 paragraph affidavit deposed to by one AlhajiToyosi Y. Raheem and a written address dated and filed on the same date. The prayer for leave was granted on the 19th of March, 2015 by Honourable Justice B.A. Adejumo. Upon the grant of leave, Applicant then filed a Motion on Notice dated the 9th of June, 2015 and same under the relevant laws as well. The Motion was supported by a 17 paragraph affidavit deposed to by one AlhajiToyosi Y. Raheemand also a written address. The Motion on notice prayed the Court for An Order of Certiorari to remove into the Court for the purpose of being quashed the findings of the:- “REPORT OF THE PRESIDENTIAL COMMITTEE OF EXPERTS ON INTER- PROFESSIONAL RELATIONSHIPS IN THE PUBLIC HEALTH SECTOR (PCEIPRHS) DATED DECEMBER 2014”, as they relate to: matters already decided by this Court and other Courts of competent jurisdiction, matters pending in this Court and the Federal High Courts, matters pending in the Court of Appeal and Supreme Court of Nigeria. The motion paper set out 15 grounds inter alia upon which the application is predicated
In order to stem the disharmony among the various public Healthcare professionals in Nigeria, President Goodluck Ebele Jonathan, GCFR, set up a Ten-Member Committee of Experts, on Wednesday, 18th September, 2013, to look into Inter-Professional Relationships in the Public Health Sector with a view to recommending measures to ameliorate them; the Committee headed by Alhaji Mahmud Yayale Ahmed, CFR, (Former Head of Service of the Federation) was given the following terms of reference; identify the conflict areas among Public Health Sector Workers; identify international best practices in the management of Public Health workers; review the current roles of the various professionals cadres in the Health Sector and recommend measures to remove areas of conflict and so on.
The Committee subsequently identified nine (9) major conflict areas in the Public Health Sector. On the 19th day of December, 2014, the Committee submitted its report to the President which published in national newspapers.
In a press statement signed by the president’s Special Adviser on Media and publicity and published by the aforementioned Newspapers, it was reported that the federal Government will review the report immediately with a view to issuing a white paper on it and commence the implementation of its recommendations. A white paper committee to consider the Report has since been set up in the office of the secretary to the Government of the Federation. The bulky Report (over 200 pages) of the Alhaji Mahmud Yayale Ahmed’s Committee findings and Recommendations has been circulating in the public arena and among the major stakeholders (including) the Applicants in the Public Health Sector.
Proving that they have an arguable case, the Applicants observed that most of the findings and Recommendations of the committee centred on issues that were/are the subject of litigations in various courts of competent jurisdictions. The courts are: – National Industrial Court, Federal High Court, Court of Appeal and Supreme Court. They argued that Writ of Certiorari is one of the instruments of judicial control of administrative action. Citing some cases, it was argued that it will apply where an administrative body purports to usurp judicial functions, because S. 6 of the constitution vests judicial powers in the court and not the executive arm. It was also contended that it is settled jurisprudence that decisions of a court of competent jurisdiction on a matter would constitute an estoppel per rem judicatam, citing the case of Agala v Egwere (supra). Concluding, it was argued that that matters pending before the courts cannot be inquired into or deliberated upon by other bodies or institutions outside the law courts as it will be a naked usurpation of judicial functions as provided for under the 1999 Constitution.
Learned Counsel to the 4th Respondent, A.O. Egalase, through the written address in support of the counter affidavit formulated one issue for determination to wit: “whether the honourable court can safely grant the Applicant’s application under the circumstances of the suit”
In arguing the lone issue, Learned Counsel respectfully submitted that though a Writ of Certiorari is a judicial review of or supervisory jurisdiction of the High Court exercised in the review of proceeding and decision of inferior courts as well as quasi- judicial Function of government bodies, the court is usually concerned with the legality and not with merit of the proceeding, decision of the affected inferior court, Tribunals, or Government bodies. Counsel referred the court to per Onnoghen JSC in ACB PLC Vs. Damien IkechukwuNwaigwe& 2ORS LER (2011)SC35/2001.
He further submitted that where a purported action of a government body has not been made public, you cannot regard such action as a government action and therefore cannot safely act on it. And it therefore follows that the Writ of Certiorari cannot be used in cases that are speculative or hypothetical and academic. Counsel cited the case of Plateau State of Nigeria V.A.G. of the Federation (2006) 25 NSCOR 179 Niki Tobi, JSC at page 236.
Counsel concluded that arising from the above Courts’ decision, it is no gain saying that the action is full of guesses and low in facts as the said REPORT sought to be quashed by the court is not Within the public domain, is not a working report since according to the applicants they are still being called to make further submission to authenticate the said report hence the application will fail in line with the Decision of the Court in the case of Plateau State of Nigeria V.A.G, of Federation (Supra).
Having said that, from the totality of the issues raised in the written addresses before this court and the argument made in furtherance of same, the issues to be determined by this court are to wit:
- Whether from the totality of fact before this court, the Applicants are entitled to the reliefs sought
- Whether or not from the circumstances of the suit, this action is statute barred
Dealing with the second issue which has to do with the jurisdiction of the court,
Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribes such periods and regulates the subsistence of causes of action are known as statutes of limitation.
Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed.See the cases ofEBOIGBE v NNPC (1994) 5 NWLR (Pt. 347) 649; Aremo II V Adekanye (2004) LPELR 544 (SC) Per Edozie JSC. P.17 Paras C-F.
Citing the relevant laws, the court stated that it is clear that the Applicant’s grievance originated from the Report of the Committee which was submitted on the 19th of December, 2014. To determine whether this action is statute barred, a close look at the Exparte application filed on the 18th of March, 2015 shows that the matter was brought within the requisite 3 months and therefore cannot be said to be statute barred, so the court holds.
ON abuse of court, the court considered whether there are any other suits before any court relating to the report of the Committee for which an application for judicial review is made which may be considered as multiplicity of suits?. The court stated that no such facts has been provided before this court. This court therefore considered that this application for judicial review is not an abuse of court process.
I now turn to issue one.
It was wrong for the Executive to usurp the judicial power of the courts as provided for under the 1999 Constitution of Federal Republic of Nigeria and that from the bulk of the recommendation of the Committee, it was centered on matters pending in courts of competent jurisdiction and therefore ought not to have been deliberated upon. The question that must then be asked whether the presidential Committee of Experts on Inter- Professional Relationships in The Public Health Sector (PCEIPRHS) acted judicially or quasi-judicially? In an action for the order of the writ of certiorari to bring the proceedings of an inferior court or administrative panel before a High Court to be quashed, it is the duty of the Applicant to prove by evidence, facts to establish the ground of the application. In this case, the grounds upon which the application is predicated were set out in the motion paper and verifying affidavit in support of same as contained in grounds 1 – 15.
The court having made reference to some pages of the report asked whether the executives have in any way usurped the judicial powers of the courts in its setting up of a committee to make findings into the areas covered by its term of reference.
Distinguishing the current case from another cited, court stated that it must be clearly distinguished that the recognition by the committee of matters in court and the fact that certain decisions have been made by the courts which need be complied with is not an interference with judicial powers. Neither is the investigation as to why there are multiplicity of suits within the health sector and recommendations to curb same an interference nor a means of pre-empting the decision of the court.
In determining whether certiorari applies to executive functions, the court cited the case of PROF. LOUIS CHELUNO NWAOBOSHI & ORS V. THE MILITARY GOVERNOR OF DELTA STATE & ORS  11 NWLR (Pt.831)305 and others and stated that the report sought to be quashed in the instant case is the findings of a body not empowered to act judicially. It is entirely an administrative or executive exercise of power. It therefore ruled that certiorari lies only against judicial or quasi-judicial acts.
The court stated thus:
“Generally, a body exercising powers which are merely advisory, deliberative, investigative or conciliatory in character or which do not have legal effect until confirmed by another body… will not normally be held to be acting in a judicial capacity. see Military Governor, Oyo State v Adekunle (2005) 3 NWLR (Pt.912) 294 CA. The Government is entitled to set up a Committee of inquiry or administrative panel to inquire into certain matters which are of interest to it. See also Aremo II v Adekanye (2004) 13 NWLR (Pt. 891) 572 SC. Consequently, the writ of certiorari is not the proper remedy in questioning the findings of the Presidential Committee and I so hold”.
The next that follows naturally question is whether a newspaper report can be regarded as valid evidence, upon which the court should act and quash the setting up of the administrative tribunal, the court also held that:
The answer to the above question is clearly in the negative based on the forgoing authorities.
The court therefore ruled that the order of certiorari cannot be justiciable in this action and the reliefs sought by the Applicant were refused. The court hence, dismissed the suit against the applicant.