R U L I N G The Claimant filed this action by an Originating Summon dated and filed on 6th of May, 2014; upon being served with the originating processes, 11th and 12th Defendants/Respondents entered memorandum of Conditional Appearance, and also a NPO wherein they claimed that: “THE SUIT IS INCOMPETENT” The GROUNDS of the said Objections are: 1. Misjoinder of the 11th and 12th defendants as non juristic persons. 2. The suit is incompetent and this Honourable Court lacks jurisdiction to entertain this matter in that respect. AND for such further and/or other Order(s) as to the Court may deem fit. The Application is supported by a 13 paragraphed affidavit, and in compliance with the Rules of this Court, counsel filed a written Address. WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION BACK GROUND OF FACTS ISSUES FOR DETERMINATION Based on the above grounds, the 1th and 12th Defendants/Applicants through their counsel, proposed the following as the sole issue for determination. 1) WHETHER OR NOT HAVING REGARD TO ALL THE CIRCUMSTANCES OF THIS CASE, THIS SUIT IS COMPETENT. ARGUMENT According to the Counsel to the Objector, Section 1(2) of The University of Nigerian Teaching Hospital Management Board Act, Laws of the Federation of Nigeria 2004 (LFN) CAP U12 provides thus: “There shall be established for the Management of the Hospital, a body to be known as the University of Nigeria Teaching Hospital Management Board (in this Act referred to as (“the Board”) which shall be a body corporate with perpetual succession and a common seal.” The above extract from the enabling statute establishing the University of Nigerian Teaching Hospital, Nsukka clearly excludes the 11th and 12th Defendants/Respondents from the status of being capable to sue or be sued, solely or in conjunction with the UNTH. To him, it is an established principle of law that only juristic persons can sue and be sued in an action. Where a non-juristic person is made a party to a suit, it amounts to a Misjoinder of parties, thus resulting to proper parties not being properly before the Court. Then the Court is bereft of the exercise of its jurisdiction in such situation. He referred this Honourable Court to the case of TRUSTEES P. A. W. INC. Vs TRUSTEE, A. A. C (2002) 15 NWLR (PT. 170) at 424 where the Court of Appeal held as follows: “The jurisdiction of a Court to entertain a matter is conferred by the Constitution or by the enabling statute. Generally, no Court has jurisdiction to entertain a suit in which either the Plaintiff or the Defendant is not a legal person or a juristic person” The Court of Appeal in the case of G. O.C Vs FAKAYODE (1994) 2 NWLR (PT. 329) @ 744 laid down the test for determining whether or not a body is a juristic person. According the Court, “An organization or office or position does not acquire the status of being a juristic person merely by its incorporation or creation. A position, office of corporate body sole or aggregate can only acquire such status if the statute creating the position or office or incorporating it, in the case of a corporation sole or aggregate conferred on It the status or power to sue and be sued.” The Court went further to state; “In determining whether or not a body can sue and be sued, resort must be had to the instrument under which it is created!” TO counsel, the instrument creating the office of the Chief Medical Director and Director of Administration does not confer them with the power to sue and be sued. The office of, the Chief Medical Director and Director of Administration are merely official positions created for administrative conveniences. From the foregoing, counsel submitted that the 11th and 12th Defendants on record, not being juristic persons, this Honourable Court cannot assume jurisdiction to hear this suit. Order 15 provides that; “Where no provision is made in this rule as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedure as will in its view do substantial justice to the parties “. In line with the above provision of the Rules of this Honourable Court, it will be substantial justice for the 11th and 12th Defendants/Respondents not being juristic personalities as envisaged under our law to be struck out from this suit. To him, it has been held, times without number, that before a Court can assume jurisdiction certain ingredients must be present as was laid down in case of MADUKOLUM Vs NKEMDILIM (1962) N ANLR 587. Also in the case of MARK vs EKE (2004) 5 NWLR (PT. 865) @ 54, the Court held that; “A Court is competent to assume jurisdiction on any cause or matter in the following circumstances. a) When it is properly constituted as regards numbers and qualifications of members of the bench... b) When the subject matter of the case is within its jurisdiction c) When the case comes before the Court initiated by the process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction” To counsel, one inalienable pre-condition is that the proper parties must be before the Court. Sequel to the foregoing submissions, he contended that this suit against the 11th and 12th Defendants is incompetent and he urged this Court to find in favour of the 11th and 12th Defendants and strike out the suit in its entirety for being incompetent. APPLICANT/ RESPONDENTS WRITTEN ADDRESS IN RESPONSE TO THE 11TH AND 12TH DEFENDANT’S PRELIMINARY OBJECTION Furthermore, he urged the Court to discountenance Section 1(2) of the University of Nigeria Teaching Hospital Management Board Act Cap U12 2004, cited by the 11th and 12th Defendants. The said Section provided for only the Management Board of the Hospital and has no provision relating to the position of the 11th and 12th Defendants. He submitted that the office of the 11th and 12th Defendant is a creation of the statute and aptly established in Section 5 of the University Teaching Hospitals (Reconstitution of Boards etc) Act Cap UI5LFN 2004. The said Section provides thus: Section 5 “Appointment of Chief Medical Director, Director of Administration and other staff.” From the foregoing, counsel submitted that the 11th and 12th Defendants are necessary parties for the just and equitable determination of all, the issue in suit No. NICN/ABJ/114/2014. They are persons and/or offices that must be joined so that they would be bound by the decision of this Court. Moreover, he submitted that the 11th and 12th Defendants are statutory bodies or offices vested with essential duties or functions at the University of Nigeria Teaching Hospital, Ituku Ozalla. That is elementary law, that where a statutory body or office though not a corporate body, has been conferred with essential duties or functions, (as in the case of the 11th and 12th Defendants) it can sue or be sued. He referred the Court to the Supreme Court decision in CARLEN vs UNIVERSITY OF JOS (1994) 1 SCNJ 72. He further submitted that one reason which makes it necessary to make a person, a party to a civil action is to make him bound by the result (i.e. judgment or order of the Court) of the action or suit. (As in the instant case) a party to a civil action should therefore be a person who is to be bound by the result of such action. He referred to the Supreme Court decision in GREEN vs GREEN (1987)3 NWLR (pt. 6) 480 also BABAYEJU vs ASHAMU (1998) 9 NWLR (pt. 567) 546. Finally, he submitted that the 11th and 12th Defendants are necessary parties and people who have some share and interest in subject matter of suit No. NICN/ABJ/114/2014 and are necessary in order to enable this court effectively and efficiently adjudicate and settle all the questions raised in same. He also referred to COKE vs ADEYEMO (1974) 3 SC 35 and urged the Court to so hold and accordingly dismiss the Preliminary Objection filed by the 11th and 12th defendants with a substantial cost as it has occasioned a great delay in the hearing and determination of Suit No. NICN/ABJ/ 114/2014. 11TH & 12TH DEFENDANTS/RESPONDENTS/APPLICANTS’ REPLY ON POINTS OF LAW To him, this position was given credence by the Supreme Court case of Carlen V. University of Jos (1994) 1 SCNJ 72 also cited by the claimants where it held inter alia; “The University of Jos Act has not expressly conferred on the council of the University nor did the Vice-Chancellor such a right to sue or be sue eo nomine. If there be such right or obligation, it can only be derived by implication from the Act.” He submitted that the said Supreme Court case of Carlen v. University of Jos (supra), as well as other cases of; Green v. Green (1987) 3 NWLR (Pt. 6) 480, Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546, and Coke v. Adeyemo (1974) 3 SC 35, cited by the Claimant do not apply in the circumstance of this case. In distinguishing the present case from the Supreme Court’s case of Carlen v. University of Jos (Supra), counsel submitted that part of the said decision sought to be relied upon by the Claimants in this case is to the effect that an unincorporated body or office may and can only be sued in tort as it relates to duties and responsibilities conferred on it by sections of an Act. To him, contrary to the above position held by the Supreme Court, the present case by the Claimant is not an action in tort or even declaration that affects or in any way relate to the duties or obligations of the 11th and 12th Defendants. The crux of this case by the Claimants is summarized under relief (1) of their summons and is reproduced hereunder; “A declaration that by virtue of the provisions of the Laws/Acts, the 3rd to 12th Respondents/Defendants are under the control/management of the 2nd Respondent and are therefore bound by the judgment of the National Industrial Court of Nigeria Holden at Abuja and delivered on the 23rd of October, 2013 by Hon. Justice M. N. Esowe, which judgment bounds the 2nd Respondent/Defendant.” Counsel submitted that the judgment in the case referred above by the Claimants which the Claimants have attached seeks its interpretation and application consist of Declaratory Orders which can only be effected by policy and decision making bodies which decisions affect the management of the hospital; and in this case, the Management Boards of the Hospitals sued in the case wherein the judgment was delivered; and do not relate to the duties and responsibilities of the 11th and 12th Defendants as provided under the Act. Section 5(2b) & (3b) of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act which provides for the office of the Chief Medical Director and Director of Administration states, (2) The Chief Medical Director shall — (b) Be charged with the responsibility for the execution of the policies and matters affecting the day to day management of the affairs of the Hospital. (3b there shall be for each hospital a Director of Administration who shall be responsible to the Chief Medical Director for the effective functioning of all administrative divisions of the hospital.” From the above provisions, he submitted that the office of the Chief Medical Director was created merely for the execution of already existing policies and matters as it relates to the day to day management of the Hospital, following which the office of the Director of Administration becomes answerable to the Office of the Chief Medical Director in disposing of the said functions. Thus, the offices are merely for administrative convenience and are not conferred with such decision making functions as it relates to the management of the hospital such as to enable them be sued for the functions sought by the Claimants. They only execute and administer decisions already made by the management board, which decisions affects the operations of the hospital as provided under Section 7 of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap U15, 2004. The above provision is in line with the specific provision of Section 1(2) of The University of Nigerian Teaching Hospital Management Board Act, Laws of the Federation of Nigeria 2004 (LFN) CAP U12 which provides thus: “There shall be established for the management of the hospital, a body to be known as the University of Nigeria Teaching Hospital Management Board (in this Act referred to as (“the board) which shall be a body corporate with perpetual succession and a common seal.” Thus, the 11th and 12th Defendants are not necessary and proper parties for this suit. The Supreme Court in the case of Bwacha v. lkenya (2011) 3NWLR (Pt.1235) pg.610, held; “Necessary parties are those who are not only interested in the subject matter of the proceedings but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be settled, unless they are parties to the action instituted by the plaintiff.” To counsel, contrary to the above decision, the 11th and 12th Defendants had in their affidavit in support of their Preliminary Objection, particularly in paragraphs 7 - 10 averred thus: “7. The 11th and 12thDefendants’ offices which are operational by tenure were merely created for administrative convenience and do not make decisions, policies nor regulate the operations of the hospital. 8. The personal interests of the 11th and 12th Defendants sued by the Claimants who merely occupy such offices by tenure are not affected. 9. Furthermore, the cause of action in this suit did not arise from any act or decision of the 11th and 12th Defendants. 10. Following the above, I believe that the reliefs sought by the Claimants cannot in law be binding on the 11th and 12th Defendants who are not proper and necessary parties for the purpose of this suit and as such will be an exercise in futility.” Not only are the personal interests of 11th and 12th Defendants not affected by this suit wherein they are sued as natural persons in their official capacities, but also the said offices are not conferred with juristic status, and so cannot be proper and necessary parties for the purpose of the suit. Counsel therefore stated that this suit against the 11th and 12th Defendants is incompetent and urged this Court to find in favour of the 11th and 12th Defendants and strike out the suit in its entirety for being incompetent. Having gone through the submissions of both counsels and the authourities cited by them, I shall consider the issue at stake under these headings: 1) Are the 11th and 12th defendants both proper and necessary parties for the just and equitable determinations of the issues in this suit? In a brief answer to this, it is apparent that they are persons and/or offices who must be joined so that they will be bound by the decision of the Court. That is a reason why a party to a civil action should therefore be a person not just for equitable determinations of the issues in a case, but also who is to be bound by the result of such action-if it succeeds. See Babayeju vs Ashamu (1998) 9NWLR (pt. 567) 546. 2) What is the status of the 11th and 12th Defendants vis-à-vis their capacity to sue and be sued? The 11th and 12th Defendants are sued in their capacities, both as natural persons with legal capacity and as occupiers of statutory offices. In effect, the 11th and 12th Defendants are statutory bodies or offices, established by Section 5 of the University Teaching Hospital (Reconstitution of Boards etc.) ACT, Cap U15 LFN 2004; vested with essential duties or functions at the UNTH Ituku Ozalla. It is trite learning that where a statutory body or office though not a corporate body, has been confirmed with essential duties, it can sue and be sued. That is the case here. See CARLEN VS.UNIJOS.(1994) 1 SCNJ 72. Based on these two issues above, the Court is of the view that the 11th and 12th Defendants will not be prejudiced in anyway by their joinder. Their presence will ensure that they are bound by whatever decision the Court will reach. Ruling is entered accordingly. …………………………………………… HON. JUSTICE M. N. ESOWE.