(2021) Legalpedia (CA) 88276
In the Court of Appeal
HOLDEN AT LAGOS
Sunday, January 31, 2021
Suite Number: CA/L/1063/2016
|OBANDE FESTUS OGBUINYA
UGOCHUKWU ANTHONY OGAKWU
GABRIEL OMONIYI KOLAWOLE
RADIOGRAPHERS REGISTRATION BOARD OF NIGERIA
MEDICAL & HEALTH WORKERS UNION OF NIGERIA
MEDICAL X-RAY TECHNOLOGISTS ASSOCIATION OF NIGERIA
AREA(S) OF LAW
INTERPRETATION OF STATUTE
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
In 2004, 2010, and 2012, the Appellant wrote certain letters and publications, which were addressed to some public higher tertiary institutions, health institutions and print media-newspaper. In those publications, the Appellant claimed that some institutions, which train the medical x-ray technicians/technologists and medical image technologists, who make up the Respondents, were illegal and non-registrable under its law. It classified the graduates of those institutions/schools as quacks and unemployable. It also asserted in those publications, that it had regulatory and supervisory powers over the Respondents and its members. The Respondents alleged that the publications caused negative effects on the psyche of the students of those institutions as well as oppressive to their members. Sequel to that, the Respondents via an originating summons beseeched the Federal High Court, Lagos Division, the determination of some questions and sought declaratory and injunctive reliefs. The Respondents sought a declaration that the power arrogated by the Defendant to itself in the letter dated 12th December, 2012 to the Provost, Rivers State College of Health Sciences & Technology titled Illegal And Unapproved Training Of Medical Imaging Technologists/X-Ray Technicians, declaring the trainings of the 2nd Plaintiff as illegal and unapproved and that the Defendant is the regulatory body for the 2nd Plaintiff is null and void and the letter dated 12 December, 2012 to the Medical Director, Braithwaith Memorial Hospital Port Harcourt titled Medical Imaging Technologists/X-Ray Technicians Re: Unemployable And Non-Existence Cadre is reprehensible and misleading; a declaration that the power arrogated by the Defendant to itself in its Position paper titled the “Improved scheme of service for a legally non-existing cadre” the Medical Imaging Scientists cadre” delivered on the 9th of June 2004” to the effect that the Defendant is the sole cadre recognized by the Office of Head of Service and Federal Ministry of Health to determine standards of knowledge and skill to be attained by persons seeking to be members of the profession and to improve those standards from time to time as circumstances may permit is illegal, null and void; and an order of injunction prohibiting the Defendant from further claiming to be the regulatory body for the 2nd Plaintiff amongst others. The Appellant joined issue with the Respondents and denied liability by filing a counter-affidavit. Both parties filed written addresses alongside with their respective processes. In a considered ruling, the lower court answered the questions in the negative and granted all the Respondents’ reliefs. Dissatisfied with the lower court’s ruling, the Appellant after obtaining the leave of court filed its notice of appeal wherein it sought for an order allowing the appeal and setting aside the decision of the lower court.
Issues Of Determination
Whether the learned lower court judge was right when His Lordship stated that the issue of regulation and of the registration of the 2nd Plaintiff is the only issue for determination before the court. Whether the Respondents disclosed the necessary locus standi to enable them maintain the action at the court below. Whether the claim of the Respondents in this suit was barred by the Public Officers Protection Act and the Limitation Act. Whether the judgment of the lower court was against the weight of evidence.
“It is germane to place on record, upfront, that myriads of documentary evidence were furnished before the lower court by the feuding parties. Interestingly, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36.”
“The law compels the courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193”.
“A fresh issue is one which was not adjudicated and pronounced upon by a lower court whence an appeal emanated, see Olalomi Ind. v. NIDB (2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate court is not clothed with the garment of jurisdiction to entertain a fresh issue save with the leave of court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335; Awala v. NITEL Plc (2019) 15 NWLR (Pt. 1695) 372; Ibrahim v. APC (No.1)(2019) 16 NWLR (Pt. 1699) 444. Leave, in this context, connotes permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1983) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd (2008) 3 NWLR (Pt. 1073) 179.
“In any event, this cardinal principle of law, that a fresh issue cannot be attended to by an appellate court except with the leave of court, is elastic. It admits of an exception. Its rider is deep rooted in the wide domain of jurisdiction. If a new point borders on jurisdiction of a court, a party has the licence of the law to raise it on appeal without the leave of court, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Moses v. State (2006) 11 NWLR (Pt. 992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; Opobiyi v. Muniru (2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W. R. & R. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass. (Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414) 159; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Sakati v. Bako (2015) 14 NWLR (Pt. 1480) 531; Wema Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484) 93; Onemu v. Comm., Agric & Natural Resources, Asaba (2019) 11 NWLR (Pt. 1682).
“It is a trite elementary law, that an issue of limitation law falls, squarely, within the wide four walls of substantive jurisdiction of a court. In the eyes of the law, a successful plea of limitation law, as a shield, by an opposing party occasions two harmful effects against a claimant’s action. Firstly, he becomes a destitute of the right of action and judicial relief. In a word, it extinguishes his cause of action, see Egbe v. Adefarasin (No.2) (supra); Nasir v. C.S.C., Kano State (supra); Abubakar v. Nasamu (No. 1) (2002) 17 NWLR (Pt. 1330) 407; INEC v. Ogbadibo LG. (2016) 3 NWLR (Pt. 1498) 167; Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385. Secondly, the court ceases to be crowned with the requisite jurisdiction to entertain his action. See Owners of the MV “Arebella” v. NAIC (2008)10 NWLR (Pt. 1097) 182; Olagunju v. PHCN Plc. (supra); JE.C. Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; INEC v. Enasito (2018) 2 NWLR (Pt. 1602) 63; Toyin v. Musa (2019) 9 NWLR (Pt.1676) 22”.
“Since the issue fits, firmly, within the wide perimeter of jurisdiction, the law grants the appellant the wide latitude to raise it without leave of court. It follows that the appellant has not defiled the law by raising the issue which orbits around the jurisdictional competence of the lower court vis-à-vis the adjudication of the suit. On this score, this court is equipped with the ample vires to entertain the issue notwithstanding that it was not pronounced upon by the lower court.
“As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin(No. 2) (1987) 1 NWLR (Pt. 47) 47; Nasir v. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253;CotecnaInt’ Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; A-G., Adamawa State v. A-G., Fed. (2014) 14 NWLR (Pt. 1428) 515; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489); N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247; Daniel v. Ayala (2019) 18 NWLR (Pt. 1703) 25”.
“The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions and to preserve the evidence by which a defendant will defend the action, see Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572;Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113;Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 943; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309; Asaboro v. Pan Ocean Oil Corp. (Nig) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Awolola v. Gov., Ekiti State (2019) 6 NWLR (Pt. 1668) 247; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254”.
“The orthodox judicial formula for gauging limitation legislation is simple. A court is enjoined to examine the filed writ of summons or the originating process, either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred. Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emeruwa(2004) 13 NWLR (Pt. 890) 398;Aremo II v. Adekanya(supra);Elebanjo v. Dawodu(2006) 15 NWLR (Pt. 1001) 76; Williams v. Williams (2008) 10 NWLR (Pt. 1095); Hassan v. Aliyu(2010) 17 NWLR (Pt. 1223) 574; Nweke v. UNIZIK, Awka (2017) 18 NWLR (Pt. 1598)454; Saki v. APC (2020) 1 NWLR (Pt. 1706) 515.
“Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the court to measure the presence or absence of its jurisdiction in relation to limitation law, see Akine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. It must be stressed, that it is only a plaintiff’s statement of claim or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a court, see lzenkwe V. Nnadozie (1953) 14 WACA 301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 361; Ngere V. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440.
“For the purposes of limitation statutes, a cause of action begins to run when a party becomes aware of an erosion of his right and there exists a person to be sued (the violator) to protect the encroached right, see Woherem v. Emenuwa (supra); Owie v. Ighiwie (2005) 5 NWLR (Pt. 917) 184; UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890) 352; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66”.
“Be that as it may, the appellant has only scored a barren victory on the finding that the cause of action was already cold when it was filed. The reason is not far-fetched. The scary and dreaded section 2(a) of the POPA is inflexible as it accommodates certain exceptions. One of them, which the respondents invented to castrate the issue, is the doctrine of continuance of damage. Indisputably, continuance of damage or injury is an exception warehoused in section 2(a) of the POPA. The doctrine postulates that where there is a continuous damage/injury, a fresh cause of action arises from time to time as often as the damage is caused. Such fresh action gives a fresh cause of action, see Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Oriorio v. Ossain (2012) 16 NWLR (Pt. 1327) 560; Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327; A. – G., Rivers State v. A. – G., Bayelsa State (2013) 3 NWLR (Pt. 1340) 123; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; INEC v. Ogbadigbo Local Govt. (2016) 3 NWLR (Pt. 1498) 167; Nweke v. Unizik Awka (2017) 18 NWLR (Pt. 1598) 854; INEC v. Enisato (2018) 2 NWLR (Pt. 1602) 213; INEC v. Onowakpoko (2018) 2 NWLR (Pt. 1602) 134. In Obiefuna v. Okoye (1961) 11 NLR 357 at 360/(1961) 1 SCNLR 144 the apex court declared: Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effect of a legal injury. See, also, INEC v. Ogbadigbo Local Govt. (supra). It is decipherable from the above magisterial pronouncement, in the ex-cathedra authority, that there is a wide dichotomy/gulf between continuance of damage/injury and continuance of its injurious effects. While a continuance of damage/injury may abate, at the instance of the tortfeasor, the injurious effects may outlive it. Continuance of damage/injury connotes a repeat or continual repetitions of the legal injury that may impregnate injurious effects.
“Abuse of office is the utilisation of power, donated to one by law, to achieve/actualise ends other than those for which it is granted, for instance, to realise personal gains, to show undue favour to another or wreak vengeance on an adversary. It is one of the factors/incidents that disrobes a party an entitlement to the protection of section 2(a) of the POPA, see Offiboche v. Ogoja L. G. (2001) 16 NWLR (Pt. 739) 458; Lagos City Council v. Ogbunbiyi (1969) ALL NLR 287; Nwankwere v. Adewunmi (1966) 1 SCNLR 356/(1965) NSSC Vol. 4 140; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
“It is trite, that the absence or presence of locus standi in a party will divest or infuse jurisdiction into a court to discountenance or entertain a matter before it, see Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 349/(2005) 30 WRN 1; A.-G., Anambra State v. A.-G. Fed (2007)11 NWLR (Pt. 1047) 4; Admin/Exec., Estate Abacha v. Eke-Spiff (2009) 17 NWLR (Pt. 1171) 614; Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310 1370; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Okwu v. Umeh (2016) 4 NWLR (pt. 1501) 120; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210; Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666)518; Nworka v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (2019) 10 NWLR (Pt. 1681) 401”.
“From an etymological perspective, the cliché, locus standi, traces its roots to Latin Language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity of a person to institute an action in a court of law when his right is trampled upon by somebody or authority, see INEC v. Ogbadibo L. G. (2016) 3 NWLR (Pt. 1498) 167; Centre for Oil Pollution Watch v. NNPC (supra) Nworka v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). Locus standi was evolved to protect the court from being converted into a jamboree by professional litigants who have no interest in matter, see Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; Al – Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a court of law – and the existence of dispute between parties, see Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra). Again, that he has sufficient interest in the subject-matter of the action and that his civil rights and obligations are in the danger of being infringed on, see Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Nyesom v. Peterside (supra); Al – Hassan v. Ishaku (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworka v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra)”.
“It is the statement of claim, or affidavit in originating summons, that is examined by a court in determining the locus standi of a party, see Nyesom v. Peterside (supra); Taiwo v. Adegboro (supra); Odeneye v. Efunuga (supra); Uwazuruonye v. Gov., Imo state (2013) 8 NWLR (Pt. 1355) 28; Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320; INEC v. Ogbadibo L. G. (supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworka v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). However, chances of success of an action is irrelevant in considering locus standi, see Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra). The order a court makes, in the absence of locus standi, is one of striking out the suit, not dismissal, see Magbagbeola v. Akintola (2018) 11 NWLR (Pt. 1629) 177”.
“In the interpretation of the concept of locus standi, the case-law has since granted the court the unbridled licence to broadly determine it with regard to corporate interest and bear in mind, like a badge on its shoulder, that ready access to the court is one of the attributes of civilised legal system, see Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149. In the English case of Rev. v. Greater London Council, Ex Parte Blackburn (1976) 1 W.L.R. 550, Lord Denning, MR, declared: I regard it a matter of high constitutional principles that if there is good ground for supporting that Government Department or Public Authority is transgressing the law, or is about to transgress it, in any way which offends or injures thousands of Her Majesty’s subjects, then anyone or those offended or injured can draw it to the attention of the courts and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate. In Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518 at 597, Eko, JSC, incisively, proclaimed: Every person, including NGOs, public-spirited individuals or associations, have sufficient interest in ensuring that public authorities or corporations submit to the rule of law and that no public authority has power to, arbitrarily or with impunity, break the law or general statute. The right of the citizen or lawful associations to see that the rule of law is enforced vests in him or the association sufficient standing to request the court to call to order a public authority allegedly violating the law. There is such aspiration in section 17 (2)(a) of the extant Constitution, 1999 that provides that every citizen shall have equality of rights, obligations and opportunities before the law”.
“Put bluntly, the appellant accused the lower court of improper evaluation of evidence because the judgment was against the weight of evidence. To start with, a castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial court cannot be supported by the weight of evidence advanced by the successful party which the court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial court. In ascertaining the weight of evidence, the trial court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagunv. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412”.
“The law has saddled a trial court, like the lower court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11;Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635.
“In the mind of the law, an exhibit denotes a document, record or other tangible objects formally introduced as evidence in court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. A court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374. In the wide realm of adjectival law, a rejected document cannot be relied on by the court, see Nigerian Ports Plc. v. B.P. PTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108. A court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389; Phillips v. E.D.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117”.
“The appellant pegged its stance on the provisions of sections 18 – 21, 27 and 28 of the Radiographers (Regulations, etc.) Act, Cap R1, LFN, 2004 (the Radiographer Act). The emphasis was on sections 27 and 28 thereof. Owing to their kingly position, I will extract them, from their abode in the law, verbatim ac litteratim, as follows: 27.Regulations, rules and orders Any power to make regulation, rules or orders conferred under this Act shall include- (a)power to make provisions for such incidental and supplementary matters as the authority making the instrument considers expedient for the purposes of the instrument; and (b) power to make different provisions for different circumstances. 28. Interpretation. “radiography” means the art and science of the application of various forms of radiant energies on human beings in order to promote health, treat diseases and produce various diagnostic images including- (a)X-ray imaging; (b) radio nuclide imaging; (c)ultrasonic imaging; (d)thermographic imaging; (e) magnetic resonance imaging; when medically indicated; Contrariwise, the respondents anchored their grouch on the provisions of sections 8, 9 and 25 of the Education (National Minimum Standards and Establishment of Institutions) Act, Cap E3, LFN, 2004 (the Education Act). The relevant one is section 8 thereof. Being the cynosure of issue, I will scoop it out from its residence in the statute, wholesale, thus: 8.Minimum standards in respect of technical education. (1)The responsibility for the establishment of minimum standards in polytechnic, technical colleges and other technical institutions in the Federation shall be vested in the Minister after consultation with the National Board for Technical Education and thereafter that Board shall have responsibility for the maintenance of such standards. (2)The Board shall have power to accredit programmes of all institutions mentioned in subsection (1) of this section for the purpose of award of national certificates and diplomas and other similar awards and for entry into national and zonal examinations in respect of such institutions. (3In exercising the powers conferred under or pursuant to the foregoing provisions of this section, the Minister or, as the case may be, the Board, shall have regard to the matters mentioned in section 9 of this Act. These provisions do not harbour any ambiguity. On this note, the law compels the court to accord them their ordinary grammatical meanings without any interpolation, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR(Pt. 1553) 420; Setracto (Nig) Ltd. v. Kpayi (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55. I will pay due respect to this cannon of interpretation in order not to annoy the law”.
“Indeed, as a matter of law, once a word or phrase/expression is defined by case-law or statute, a fortiori the Constitution, which sits atop of pyramid of all laws, it takes that meaning judicially assigned to it and drops/sheds its erstwhile technical or ordinary meaning it owed before, see Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 322; Shettima v. Goni (2011) 18 NWLR (Pt. 127) 413; A.-G. Fed. v. A.-G., Lagos State (2013) 16 WLR (Pt. 1380) 249; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 5915; Utomudo v. Mil. Gov., Bendel State (2014) 11 NWLR (Pt. 1417) 97”.
“Accesoruim non-ducit sed sequitus suum principale, id est, that which is incidental does not lead, but follows its principal, see Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517.
“Besides, where an enactment confers power on a person or body, that power includes all the necessary and incidental powers to make that principal power effective, see section 10 of the Interpretation Act, Cap I23, LFN, 2004; Chimea v. Ezea (2009) 2 NWLR (Pt. 1125) 263; A. – G., Lagos State v. A. – G., Fed. (2003) 12 NWLR (Pt. 833) 1; Ahmed v. FRN (2009) 13 NWLR (Pt. 1159) 536; Nnakwe v. State (2013) 18 NWLR (Pt. 1385) 1; A. – G., Ondo State v. A. – G., Fed. (2002) 9 NWLR (Pt. 772) 222; FRN v. Nwosu (2016) 17 NWLR (Pt. 1541) 226.
“It is a recognised canon of interpretation of statutes, which embrace subsidiary enactments, that the express mention of specific thing excludes the other things unmentioned. In the latin days of the law, it was encapsulated thus: Expressio unius est exclusio alterius or Inclusio unius exclusio alterius or Enumeratio unius exclusio alterius. The case-law has since given its blessing to this rule of interpretation, see Ehuwa v. O.S.I.E.C (2006) 18 NWLR (Pt.1012) 544; P. & C.H.S. Co. v. Migfo (Nig.) Ltd. (2009) II NWLR (Pt. 1153) 611; A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Sun Ins. (Nig.) Plc. v. UECC Ltd, (2015) II NWLR (Pt. 1471) 576; Jev. v. Iyortom (2015) 15 NWLR (Pt. 1483) 484; Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340”.
“It is a elementary law, that the primary duty/function of the court/Judex is jus dicere, not jus dare, id est, to declare what the law is and not to formulate one, see Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44); Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Coca-cola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. It will be doing serious violence to the rudimentary/traditional role of the court to factor the missing institutions into those provisions as solicited by the appellant. The law does not grant this court the license to indulge in such untoward and injudicious exercise which will smell of judicial legislation – a judgment wearing the garb or colouration or flavour of a statute. That will tantamount to an unjustifiable usurpation, trespass and invasion of the exclusive constitutional territory of the legislature. Such is not only antithetical to the raison d’etre for adjudication, but an amputation of the constitutional doctrine of separation of powers. I must decline such enticing supplication that has the potential to decimate the existential doctrine of separation of powers which is, firmly, entrenched in the Constitution – the fons et origo of our laws”.
“For the sake of completeness, the appellant’s arrogation of the regulatory powers over the respondents smacks of transgression of the clear provisions of the Radiographers Act and the Education Act. In Emuze v. VC. University of Benin (2003) 10 NWLR (Pt. 828) 378 at 401-402, Iguh, JSC, pronounced: Where a statute confers specific or special powers on any person or authority for the performance of certain acts or duties, it is only that person or authority and no other person that is contemplated in the performance of such acts or duties under the relevant law. He must also act in strict accordance with the powers vested in him by the relevant statute and may not exceed such powers…. See, also, Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Anya v. Iyayi (1993) 7 NWLR (Pt. 305) 290; Okeke v. A-G., Anambra State (1992) 1 NWLR (Pt. 215) 60; NPA Plc v. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158; Balonwu v. Gov., Anambra State (2008) 16 NWLR (Pt. 1113) 236; Gov., Ekiti State v. Olubunmo (2017) 3 NWLR (Pt. 1551) 23; UBN v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052) 567/(2007) 4 KLR (Pt. 235) 2002); A-G., Abia State v. A-G., Fed. (2006) 16 NWLR (Pt. 1005) 265”.
STATUS(ES) REFERRED TO
High Court of Lagos State (Civil Procedure) Rules 2004 (now 2012)|
Wale Adesokan, SAN (with him, Ayodeji Ogunlana, Esq,) for the appellant.|A.I. Adebayo, Esq, for the respondents.|