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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 8th April, 2014 SUIT NO: NICN/ABJ/146/2013 Between: Dr. Wellington I. Ohikhokhai Claimant AND Radiographers Registration Board of Nigeria Defendant REPRESENTATION Claimant is present; Defendant is represented by Baye Abel, Higher Statistical Officer; Onyinye Chikwendu (Miss) hold the brief of Victor Abasiakan – Ekim for the claimant ; Joshua Ezebianu Esq. hold the brief of Francis Mgboh; For the defendant. JUDGMENT By an Originating Summons, Dated and filed on the 13th day of June 2013, the defendant sought for the following reliefs upon the determination of eight questions; 1. A DECLARATION that the defendant is not the only body established by law to regulate the trade/profession relating to the production, procurement, use, application and control of radiation, x-ray, x-ray machines, radioactive substances and devices emitting ionizing radiation and other radiographic and/or radiological materials for medical treatment and/or application in Nigeria. 2. A DECLARATION that the use of x-ray/x-ray machines, radioactive substances, devices emitting ionizing radiation and other radiation emitting devices for medical treatment of patients by the claimant (a Radiologist) in his trade/profession does not make the claimant a Radiographer for the purpose of registration under Section 10 and 13 the Radiographers (Registration) Act, Cap R1, Laws of Federation of Nigeria 2004. 3. A DECLARATION that Section 10 and 13 Radiographers (Registration etc) Act is illegal and unlawful in view of the latent provisions of Section 4,5(d), 6(a), (b), (c)(d),(e), 15 and 16 of the Nuclear Safety and Radiation Act Cap N142 Laws of Federation of Nigeria 2004 in that the former seeks to restrain the practice of a trade/profession. 4. A DECLARATION that the interruption and/or disruption of the Claimant’s radiological practice/trade a radiologist practicing at Zenith Radiological Services Limited, 5 NEPA Road, Phase 4, Kubwa, Abuja by defendant, its agents, servants and privies is illegal and ultra-vires the defendant. 5. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, its servants, agents and/or privies or however called from interfering/restraining/disturbing and/or in any manner howsoever intermeddling with the Claimant’s practice/trade as a radiologist at Zenith Radiological Services Limited, 5 NEPA Street, Kubuwa , Phase 4, Abuja or at any other place. 6. A DECLARATION that the powers of the defendant to register, regulate and control the practice of radiology and/or radiography in Nigeria contained in Section 10 and other relevant Sections of the Radiographers (Registration, etc) Act has been impliedly repealed by Sections 4,5(d), 6(a), (b), (c)(d),(e) and (f); 15 and 16 of the Nuclear Safety and Radiation Protection Act Cap N142, Laws of Federation of Nigeria 2004; and Section 4; 7(1),(2)(a),(b),(c) and (d) and 16 of the Nigeria Radiation Safety in Diagnostic and Interventional Radiology Regulation 2006 made pursuant to the Nuclear Safety and Radiation Protection Act. 7. GENERAL DAMAGES in sum of N 10,000,000 (Ten Million Naira) only being damages for the unlawful disruption and/or interruption of the Claimant’s practice of his trade/profession at Zenith Radiological Services Limited, 5 NEPA Street, Kubwa, Phase 4, Abuja by the defendant. Alternatively Exemplary and Aggravated Damages in the sum of N10, 000,000 (Ten Million Naira) only for the illegal and unlawful interruption of the claimant’s medical practice /trade at Zenith Radiological Services Limited, 5 NEPA Street, Phase 4, Kubwa, Abuja by the defendant. 8. INTEREST on the sum awarded computed at the rate of 10% (percent) payable from the date of judgment until judgment debt is fully and effectively liquidated. QUESTIONS FOR DETERMINATION 1. Whether in view of the provisions of Sections 4, 5(d), 6(a), (b), (c)(d),(e) and (f); 15 and 16 of the Nuclear Safety and Radiation Protection Act Cap N142, Laws of Federation of Nigeria 2004; and Section 4; 7(1),(2)(a),(b),(c) and (d) and 16 of the Nigeria Radiation Safety in Diagnostic and Interventional Radiology Regulation 2006 made pursuant to the Nuclear Safety and Radiation Protection Act, the defendant is not the only body established by law to regulate the practice/trade of the production, procurement, use, application and control of the use of radiation, x-ray, x-ray machines, radioactive substances and device emitting ionizing radiation and other radiographic and/or radiological materials for medical treatment and/or application in Nigeria. 2. Whether in view of the provisions of Sections 4,5(d), 6(a), (b), (c)(d),(e) and (f); 15 and 16 of the Nuclear Safety and Radiation Protection Act Cap N142, Laws of Federation of Nigeria 2004; and Section 7 and 16 of the Nigerian Radiation Safety in Diagnostic and Interventional Radiology Regulations, 2006 made pursuant to the Nuclear Safety and Radiation Protection Act, Laws of the Federation of Nigeria 2004, it is not the duty of the defendant to register, license and/or regulate the practice/trade of the Claimant as a radiologist. 3. Whether in view of Section 7, Nigerian Radiation Safety in Diagnostic and Interventional Radiology Regulations 2006, by the use of x-ray/x-ray machines, radioactive substances, devices emitting devices emitting ionizing radiation and other radiation emitting devices for medical treatment of patients by the Claimant (a Radiologist) the Claimant is not a radiographer for the purpose of registration under Section 10 and 13 of Radiographers (Registration) Act Cap R1, Law of Federation of Nigeria 2004. 4. Whether in view of the provisions of Section 10(1),(a),(b),(c),(d) (4) and the Third Schedule of the Radiographers (Registration) Act Cap R1, Law of Federation of Nigeria 2004, relating to accepted qualification for the registration of radiographers, the Claimant is not one of the persons required to register and/or is registrable by the defendant. 5. Whether by the conduct of the defendant seeking to regulate the medical practice of the Claimant (a Medical Doctor) whose practice and profession is regulated and licenced by the Medical and Dental Council of Nigeria, the defendant is seeking to usurp the functions and powers of the Medical and Dental Council of Nigeria as provided in Section 8, 10, 11 and 14 Medical and Dental Practitioners Act Cap M8, Law of Federation of Nigeria 2004. 6. Whether in view of the provisions of Section 40 Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 7 of the Nigerian Radiation Safety in Diagnostic and Interventional Radiology Regulations 2006 made pursuant to the Nuclear Safety and Radiation Protection Acts LFN 2004, the act of the defendant in harassing, intimidating and/or persecuting the plaintiff in order to compel the Plaintiff to register with the defendant is illegal and unconstitutional. 7. Whether Sections 10 and 13, Radiographers (Registration etc) Act Cap R1, Laws of Federation of Nigeria is illegal, unlawful and ultra vires the defendant in view of the latent provisions of Section 4; 5(d); 6(a), (b), (c)(d),(e) and (f); 15 and 16 of the Nuclear Safety and Radiation Protection Act Cap N142, Laws of Federation of Nigeria 2004; and Section 7 Nigerian Radiation Safety in Diagnostic and Interventional Radiology Regulations, 2006 which empowers the Claimant to use radiation and x-ray in medical therapy and whether Section 10 and 13 Radiographers (Registration etc) Act has been impliedly repealed. 8. Whether the interruption and/or disruption of the Claimant’s Radiological practice as a Radiologist at Zenith Radiological Services Limited, 5, NEPA Street, Phase 4, Kubwa, Abuja by the defendant, its servant, agent and/or privies or howsoever called is illegal and ultra-vires the power of the defendant. The application /summons is supported by a 26 paragraph affidavit deposed to by the claimant, with 13 exhibits. There is also a further affidavit of 14 paragraphs and one exhibit in further support of the Originating Summons. Counsel to the claimant, Mr. Abasiakan also filed a written address on 13th of June 2013 and a further written address dated the 12th of December 2013 containing legal arguments and submissions in support of the claimant originating summons,. In response to the Originating Summon and all the processes filed by the claimant, the defendant filed a counter affidavit of 14 paragraphs (all sub paragraphs inclusive) with an attached 8 exhibits and a written address dated and filed on the 24th of September 2013. In addition to the defendants response to the claimants Originating Summons, he also filed a Notice of Preliminary Objection dated the 20th of November 2013, a written address and a reply to the claimants response to the Notice Preliminary Objection (NPO). This reply is dated and filed on the 9th of December 2013. When this matter came up on the 30th of January 2014, the court allowed the counsel to the respective parties to argue the Notice of Preliminary Objection (NPO) and the substantive originating summons together on the authority of Dipianlong Vs Dariye 2007 4 SC (Pt III) 118 at 167- 168 Inakoju Vs. Adeleke 2007 1 SC Pt. I page I. President of the Senate Vs. Nzeribe. Since the Notice Preliminary Objection (NPO) touches on the jurisdiction of the court and jurisdiction is a fundamental issue, the defendant counsel was allowed to move his motion first. In the said preliminary objection dated and filed on the 20th of November 2013, the defendants counsel, Francis Mgboh Esq. sought for the striking out or dismissal of the claimants action in its entirety for want of jurisdiction on the following grounds: (a) There is no existing dispute between the Defendant and its members or their workers connected with employment or non-employment or term of employment and physical condition of the Defendant and physical condition of Defendant’s workers or members. (b) The subject matter of the claimant’s case is not connected with employment or non-employment but proceeding for a declaration or injunction affecting the validity of the Defendant executive or administrative decisions or actions as an agency of the Federal Government of Nigeria contrary to sections 251 (1)(P) and (r) of the 1999 constitution of the Federal Republic of Nigeria. (c) The claimant also has no existing contractual relationship with the Defendant; neither is the claimant an employer or worker of the defendant; neither is there any inter or intra dispute between the Nigeria Medical and Dental Council, of which the claimant is a full member and the Defendant. (d) That Zenith Radiological Service Limited is a juristic person completely distinct from the claimant. Hence the claimant who is in full time employment as a public officer in Wuse General Hospital cannot maintain an action for Zenith Radiological Services Limited in his name without any legal or lawful authority. (e) The claimant cannot solely abate, procure, counsel and certify Mr. Ola Olarewaju, an unqualified, unlicensed and unregistered person to operate or handle radioactive devices or machines at Zenith Radiological services limited. (f) The claimant has not suffered any thing over and above Mr. Ola Olarewaju Miss. Martha, Zenith Radiological Services and Nigerian Medical and Dental council to confer the claimant the requisite Locus Standi to commence any action before this court as such the claimant action is an abuse of judicial process. (g) The claimant action discloses no reasonable cause of action to be tried. The defendant, executive or administrative action is in accordance with sections 44 (2 ), (a ) and (k), 45 (a) and (b) of the 1999 constitution of the Federal Republic of Nigeria, as amended and Decree No: 42 of 1987. (h) The claimant’s action is premised on declaration or injunction affecting the validity of the defendant’s executive or administrative action or decision. (i) The Defendant and the Nigerian Nuclear Regulatory Authority being agencies of the Federal Government of Nigeria and known to the Claimant that the Federal Government of Nigeria regulate their administration, management and control provided for under their respective enactment or laws of the federation Nigeria . (j) The claimant’s initiating an action to challenge the validity of the Defendant’s public duties as agency of the Federal Government falls within the exclusive jurisdiction of the Federal High Court of Nigeria only. (k) The Claimant is a certified Medical Doctor and a member of the Nigerian Medical and Dental Council while the Defendant is a creation of status saddled with the training, licensing and registration of qualified Radiographers in Nigeria of which Mr. Ola Olarenwaju and Martha are not a member. (l) The claimant is a Radiologist while the Defendant is a government institution or agency for training and certification of Radiographers practicing in Nigeria. (m) The Claimant’s action before this Honourable Court is therefore in want of jurisdiction and to be dismissed with substantial cost in favour of the Defendant, the Defendant having entered his defence in error of want of jurisdiction. Mr. Mgboh therefore formulated three issue for determination in the Notice Preliminary Objection (NPO) namely: (1) Whether the reliefs set out by the claimant in its originating processes are such that can confer jurisdiction on this Honourable Court to entertain same. (2) Whether proper or necessary parties are before this Honourable Court to confer jurisdiction to hear the claimants action (3) Whether the claimants entire action discloses any reasonable cause of action to be tried. On issue one, counsel submitted that the Federal High Court of Nigeria is the proper court to entertain this suit in view of the provision of section 251 (1) , (p), (r ) and (s ) as none of the reliefs of the claimant borders on section 7 of the National Industrial Court Act 2006. Counsel cited the cases of N.U.E.E. Vs. BPE 2010 All FWLR Pt. 525 pg 201; Madukolu Vs. Nkemdilim 1962 FWLR 597; Odofin Vs. Agu 1992 3 NWLR Pt. 229 320; Rossek Vs. ACD 1993 10 SCNJ 20; STB PLC Vs. Olusola 2008 I FWLR Pt. 415 at 1 787; and urge the court to hold that since the claims do not touch, relate, connect, arise from or incidental to employment, labour or trade union or industrial relations, the National Industrial Court has no Jurisdiction. Counsel further call in aid of his submission, the case of NEPA Vs. Adegbero 2002 18 NWLR (Pt. 798) 79 where the Supreme Court of Nigeria held that matters on executive and administrative activities and duties of Federal government agencies like the defendant in this case falls under the exclusive jurisdiction of the Federal High Court. On issue two, Mr. Mgboh contended that the claimant is a natural person while the Name Zenith Radiological Services Limited is an artificial legal entity and a disclosed principal of the claimant and the action of the defendant was against the artificial person and the claimant has not produced any lawful authority to suggest that he was duly authorized by his principal to maintain this action as constituted in this suit; The claimant in the absence of his principal has no locus standi to initiate this suit, the counsel argued. Counsel submitted further that the claimant who is a public servant with the Wuse General Hospital Abuja cannot lawfully engage in private practice in Zenith Radiological Services Ltd to conflict with the Federal Government interest as public officers can only engage in farming as a private business in accordance with section 1 & 2(a) and (b) of the 5th schedule part I of the Code of Conduct of Public Officers 1999 Constitution as amended; counsel cited section 1 (3) of the constitution to reiterate its supremacy as any other law in conflict with it become void to the extent of that inconsistency. Counsel then urged the court to resolve issue 2 in the defendant’s favour and uphold the objection. It is observed that since issue three is not argued, it is hereby regarded as abandoned; In response to the Notice of Preliminary Objection (NPO), the claimants counsel Victor Abasiakan-Ekim in his written address identified three issues from the defendant written address as follows: 1. Jurisdiction/ proper venue 2. Proper parties 3. Disclosure of a reasonable cause of action and proceeded to address them. On Jurisdiction/proper venue, counsel submitted that Section 254 (c) of the 1999 Constitution of Nigeria as amended has widened the scope of Section 7 (1) of the National Industrial Court Act 2006 to accommodate the claims of the claimant in this suit as constituted. Counsel submitted further that section 47 of Trade Dispute Act envisaged a conflict giving rise to an action as the dispute in this suit is related to, connected to, arises from and incidental to the practice of a profession or trade. Counsel referred to the definition of a dispute in Black Law Dictionary 7th Edition at page 485, Section 254 (c ) (I) (a) (d) (f) and (h) of the 1999 constitution as amended; Nigeria Bank for Commerce and Industry Vs. Kumbo Furniture Company Nig. Ltd; 2004 17 NWLR (Pt 903) 572, 592. Kwara State Ministry of Health Vs. Mallam Issah Electrical Enterprises 2012 1 WRN 30, 44. Mr. Abasiakan- Ekim contended further that the definition of trade dispute in National Union of Electricity Employers Vs. Bureau of Public Enterprise 2010 7 NWLR Pt 1194 538, 564 – 565 is no longer good law in view of the wider and enlarged jurisdiction of this court as contained in the amended 1999 Constitution in section 254. Counsel submitted that the defendant, who is seeking to restrict/and/or restrain the claimant in the practice of his trade or profession or regulate and control him brings the dispute under a trade dispute as contemplated under section 254 (c) (1)(a), (d), (f) and (h) of the Constitution of the Federal Republic of Nigeria (as amended) and therefore urge the court to so hold. Mr. Abasiakan-Ekim further contended that where the decision or action of an agency of the federal government as in this case affects, relates, connects or is incidental to the practice of a trade or profession by a worker or employee section 251 (1) of the 1999 constitution is of no moment as the amended constitution as contained in section 254 (c) (1) has confined exclusive jurisdiction on this court. Counsel further invited the court to the claims in this suit particularly reliefs of 4,5 and 7 and paragraphs 11 – 17 of the supporting affidavit to determine jurisdiction as it is only the claim of the claimant that determine jurisdiction and not the defence. Counsel cited the case of Adeyemi Vs. Opeyori 1976 Vol. 10 NSCC 455, 464. On the issue of proper party and locus standi canvassed by the defendant counsel, the claimant counsel submitted that the rights sought to be protected in this suit belongs to the claimant as the threats and harassment was done against him and not against his company Zenith Radiological Services Limited. Counsel cited the case of Owodunni Vs. Registered Trustees of Celestial Church of Christ 2000 6 Sc Pt.III 60 and section 6 (6)(b) and section 36(1) of the constitution of the Federal Republic of Nigeria 1999 as amended and urged the court to hold that the claimant has sued the proper party and he has the locus standi to protect his interest and assert his rights against the defendant as the claimant is subject to the regulation and control of the Nigerian Nuclear Regulatory Agency in the practice of his profession and trade and not the defendant. On issue of private practice by the claimant, the claimant who is a consultant Radiologist and a fellow of the Medical College of Nigeria, according to counsel is allowed or permitted by section 49 of part E of the Rules of Professional Conduct for Medical and Dental Practitioners to engage in private practice even though he was employed as a full time staff in the public service. On the issue of cause of action, counsel submitted further that the claimant has disclose a reasonable cause of action arising from the restraint and interference with his trade and or practice of profession which is a breach of the legal right of the claimant to practice his trade or profession as a radiologist. Counsel therefore urged the court to hold that the claimant has disclosed a reasonable cause of action. The defendant who filed a reply on the 9th of December 2013 posited that where action is for declaratory and mandatory orders challenging the executive action of a Federal Government Agency, it is only the Federal High Court that has jurisdiction by virtue of section 251 (i) (r) of the 1999 Constitution. Counsel referred this court to the case of Professor Shuib Oba AbdulRaheem Vs. Dr Taiwo Oruntoba-Oju 2006 15 NWLR (Pt.1003) 581 at 590. Counsel submitted that an ordinary claim for wrongful dismissal cannot even qualify as a trade dispute as the National Industrial Court has no jurisdiction to grant declaratory reliefs – counsel referred the court to the decision in Abdul Raheem Vs Oruntoba ‘Oju’s case Supra and added that section 254 (c) of the 1999 Constitution has not entirely repealed the jurisdiction of the Federal High Court on issues connected with the validity of executive and administrative decisions or actions of the federal government or any of its agencies. Counsel urged the court not to allow itself to be used to query or investigate the validity of executive and administrative activities of a government agency that has nothing to do with employment. On whether or not the claimant is a necessary or proper party to initiate this action, counsel repeated most of his argument in support of his preliminary objection but added without conceding that if this court has jurisdiction to hear the claimants action on declaration, the court has the unfettered discretion to join all interested parties Suo Motu such as the Nigerian Police, Minister of Health, Dental Council of Nigeria, Wuse General Hospital, Asokoro General Hospital, Sharia or District Court jiwa, Senior Magistrate Court Kubwa, AG of the Federation, Nigerian Nuclear Regulatory Authority, Federal University of Benin, National Assembly, Ola Olarewaju, Miss Martha, Zenith Radiological Services Ltd, Edet Eunice Francis among others since all of them will be affected by the decision of this court in this case, one way or the other. Counsel referred the court to the case of Okonkwo Vs. Okagbue 1994 9 NWLR (Pt.368) 301; BSG Energy Holdings Ltd Vs. Spears 2013 All FWLR (Pt. 694)105; Ipadeola Vs. Oshowole 1987 3 NWLR (Pt. 59) 18. Counsel finally urged the court to decline jurisdiction. I have carefully considered and painstakingly gone through the processes filed in this suit, the argument proferred by counsel in support of their respective positions. Since jurisdiction of court is a fundamental issue, it behoves on this court to look into it with a view to seeing and determining whether it has jurisdiction and power over this entire suit or not before proceeding to consider the merit or otherwise of the substantive issue in the originating summons. In determining whether a court has jurisdiction to entertain an action or not, it is the claimants claim that is considered. It is the claim in any particular case that determines jurisdiction. In other words, it is the claimant’s claim that cloths the court with or denies it the jurisdiction to adjudicate on a matter before it. Whatever is brought before the court by the claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all. See the cases of Adeyemi Vs. Opeyori 1976 7-10 SC 31 Alamieyeseigha Vs. Igoniwari No 2 2007 7 NWLR (Pt. 1034) 524 at 573 P & C.H.S Co. Ltd Vs. Migfo Nig Ltd. 2013 3 NWLR Pt. 1333 at 555 For the purposes of emphasis, the claims in the originating summons of the claimant is herein reproduced as follows. 1. A DECLARATION that the defendant is not the only body established by law to regulate the trade/profession relating to the production, procurement, use, application and control of radiation, x-ray, x-ray machines radioactive substances and devices emitting ionizing radiation and other radiographic and/or radiological materials for medical treatment and/or application in Nigeria. 2. A DECLARATION that the use of x-ray/x-ray machines, radioactive substances, devices emitting ionizing radiation and other radiation emitting devices for medical treatment of patients by the claimant (a Radiologist) in his trade/profession does not make the claimant a Radiographer for the purpose of registration under Section 10 and 13 the Radiographers (Registration) Act, Cap R1, Laws of Federation of Nigeria 2004. 3. A DECLARATION that Section 10 and 13 Radiographers (Registration etc) Act is illegal and unlawful in view of the latent provisions of Section 4,5(d), 6(a), (b), (c)(d),(e), 15 and 16 of the Nuclear Safety and Radiation Act Cap N142 Laws of Federation of Nigeria 2004 in that the former seeks to restrain the practice of a trade/profession. 4. A DECLARATION that the interruption and/or disruption of the Claimant’s radiologic practice/trade a radiologist practicing at Zenith Radiological Services Limited, 5 NEPA Road, Phase 4, Kubwa, Abuja by defendant, its agents, servants and privies is illegal and ultra-vires the defendant. 5. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, its servants, agents and/or privies or however called from interfering/restraining/disturbing and/or in any manner howsoever intermeddling with the Claimant’s practice/trade as a radiologist at Zenith Radiological Services Limited, 5 NEPA Street, Kubuwa , Phase 4, Abuja or at any other place. 6. A DECLARATION that the powers of the defendant to register, regulate and control the practice or radiology and/or radiography in Nigeria contained in Section 10 and other relevant Sections of the Radiographers (Registration, etc.) Act has been impliedly repealed by Sections 4,5(d), 6(a), (b), (c)(d),(e) and (f); 15 and 16 of the Nuclear Safety and Radiation Protection Act Cap N142, Laws of Federation of Nigeria 2004; and Section 4; 7(1),(2)(a),(b),(c) and (d) and 16 of the Nigeria Radiation Safety in Diagnostic and Interventional Radiology Regulation 2006 made pursuant to the Nuclear Safety and Radiation Protection Act. 7. GENERAL DAMAGES in sum of N 10,000,000 (10 Million Naira) only being damages for the unlawful disruption and/or interruption of the Claimant’s practice of his trade/profession at Zenith Radiological Services Limited, 5 NEPA Street, Kubwa, Phase 4, Abuja by the defendant. 8. INTEREST on the sum awarded computed at the rate of 10% (percent) payable from the date of judgment until judgment debt is fully and effectively liquidated. By the averment and deposition in paragraphs 1, 2, 7, 10, 11, 12, 13, 18, 19 and 23 of the affidavit in support of the claimants originating summons which is the statement of claim in this mode of commencement of actions reads as follows; ‘1’ I am a Medical Doctor/radiologist and currently operates Zenith Radiological Services limited at No 5 NEPA street phase 4 Kubwa Abuja. A copy of my qualifying academic certificate from the University of Benin dated 21st April 1993 is now produced, shown to me, tendered and marked as exhibit 1. ‘2’ The defendant is the body established by the Federal government of Nigeria law to train, license and regulate Radiographers and the practice of Radiography in Nigeria and has its address at Room 3 B144, Phase 1 Federal Secretariat Shehu Shagari way Central Area Abuja. ‘7’ In the course of my training as a Radiologist at the national post graduate medical college of Nigeria, I took a course in Radio diagnosis and radiotherapy. ‘10’ As a medical Doctor /practitioner, my practice is regulated by the Medical and Dental Council of Nigeria while the use of radiation and radiation emitting devices and x-ray is regulated by the Nigerian Nuclear Regulation Authority . ‘11’ I have since registered with the Medical and Dental Council of Nigeria and the Nigerian Nuclear Regulation Authority has inspected my premises and facilities at Zenith Radiological Services Limited, 5 NEPA Street Phase 4 Kubwa Abuja. ‘12’ On or about 23rd May 2012 the defendant represented by one Ejimo for Malachy invaded the premises of Zenith Radiological Services Ltd in company of police men and sealed up the premises on the ground that I was practicing radiography illegally and without registration with the defendant. ‘13’ All entreaties that I am a qualified medical practitioner and radiologist and not a radiographer, hence, I need no registration fell on deaf cars. ‘18’ On 29th December 2005, the Association of General and Private Medical Practitioners of Nigeria (AGPMPN) had issued a red alert in the Guardian Newspaper the illegal activities of the Radiographers registration Board of Nigeria (the defendant) ‘19’ The defendant in an advertorial in the Guardian Newspaper edition of 16th January 2006 in response to AGPMPN’S red alert insisted on monitoring and regulating medical doctors and private hospitals using and /or having x- ray units. ‘23’ I know as a fact that Radiographers are technicians trained to assist medical practitioners who are experts in and practice radiology, hence the plaintiff cannot be regulated by the defendant. I have carefully selected and highlighted the salient paragraphs of the claimant affidavit which is the statement of claims in originating summons proceedings to enable the court raise certain questions with a view to determing its jurisdiction within the context of the claimant case as formulated and constituted herein. A cursory look at the case of the claimant raises the following question. (1) When your right to practice a trade or profession is being threatened or hindered, where do you go in a bid to ventilate your grievances? Do you go to the National Industrial Court NIC? (2) Where an action or decision of a Federal government agency affects, connects, relates or is incidental to the practice of a trade or profession of an individual who is not an employee, does it become a trade dispute, labour or employment issue? (3) Can this court assume jurisdiction over a matter bordering on who regulates the practice of Radiology in Nigeria? (4) Does the third alteration Act section 254 in particular obliterate the powers of the Federal High Court over executive and administrative control of the Federal govt. agency as enshrine in section 251 (P). (Q) and (R) of the 1999 constitution as amended on non-employment matters? The answers to the above questions will involve delving into the scope of the jurisdiction of the National Industrial Court of Nigeria as provided for under the third alteration Act and other extant and subsidiary legislations. Section 254 (c) (1) (a) – (m) in of the 1999 constitution as amended has the following provisions, (a) Relating to or connected with any labour employment. Trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; (b) Relating to, connected with or arising from factories Act, trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or laws; (c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock –out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out, or any industrial action and matters connected therewith or related thereto; (d) Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as relates to any any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the court has jurisdiction to hear and determine; (e) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom; (f) Relating to or connected with unfair labour practice or international best practices in labour. Employment and industrial reaction matters; (g) Relating to or connected with any dispute arising from discrimination or sexual harassment at workplace; (h) Relating to connected with or pertaining to the application or interpretation of international labour standards; (i) Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto; (j) relating to the determination of any question as to the interpretation and application of any – i. Collective agreement ; ii. Award or order made by an arbitral tribunal in respect of a trade dispute or trade union dispute; iii. award or judgment of the court; iv. term of settlement of any trade dispute v. trade union dispute or employment dispute as may be recorded in a memorandum of settlement; vi. trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or workplace; vii. Dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof: (k) relating to or connected with disputes arising from payment or non-payment of salaries. Wages , pensions, gratuities, allowances, benefits, and any other entitlement of any employee, worker, political or public office holding judicial officer, or any civil or public servant in any part of the Federation and matters incidental thereto; (l) Relating to- i. appeals from the decisions of the registrar of trade unions, or matters relating thereto or connected therewith; ii. appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and iii. Such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not , as may be conferred upon it by an act of the National Asembly; (m) Relating to or connected with the registration of collective agreements. Section 7(1) of the National Industrial Court 2006 Act has the following provisions as well; the court shall have and exercise exclusive jurisdiction in civil causes jurisdiction and matters- (a) Relating to: (i) Labour, including trade unions and industrial relations; and (ii) Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and (b) relating to the grant of any order to restrain any person or body from taking part in any strike, look-out or any industrial action; or any conduct in contemplation or in furtherance of a strike, lock –out or any industrial action; (c) relating to the determination of any question as to the interpretation of : (i.) any collective agreement, (ii.) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute , (iii.) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv.) any trade union constitution, and (v.) any award or judgment of the Court. Section 20 (1) of the Trade Dispute Act Cap T 8 LFN 2004 has this to say There shall be a National Industrial Court for Nigeria (in this part of this Act referred to as “the court”) which shall have jurisdiction and powers as conferred on it by this or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith. Section 48 defines a trade dispute to “mean” any dispute between employers and workers or between workers and workers which is connected with employment or non employment or the terms of employment and physical condition of work of any person. From the entire gamut of the originating process of the claimant, nowhere has he claimed that he was under the employment of the defendant or any person or body relevant to this suit; A juxtaposition of his claims with jurisdiction of this court outlined above reveals clearly that the suit under consideration do not border, connect, arise, relate or incidental to employment, labour Act as a worker, trade union, industrial relation, neither is there any disclosed work place issues or matters involving wages, salaries, benefits, international labour standard or best practices. It is only where an issue concerns labour Act, employment and workplace issues that this court has exclusive jurisdiction as decided by the Court of Appeal in the case of NUT Niger State Vs. COSST Niger State 2012 10 NWLR (Pt 1307) 89. I have earlier stated that the only way of ascertaining whether a court has jurisdiction over a matter is by examining the claim of the plaintiff. In the Originating Summons, the claimant is not trade union organization neither is the defendant an employer of the claimant. The claimant is not representing any trade union or any labour or group of employees in the service of the defendant. The claimant indicated in his Originating Summons that he was prosecuting his case in his individual capacity and not as an industrial establishment or a worker. It follow therefore that no trade dispute, trade union or labour union matter relating to industrial relation has been disclosed in his claim which could have conferred exclusive jurisdiction on this court. In the case of PAM & 4 Others Vs. ABU & 2 Others 2013 2 ACELR 24 – 61 the Court of Appeal Kaduna held that by the 3rd alteration of the constitution of the Federal Republic of Nigeria (FRN) 1999 made in late 2010, the constitution now vests, by its section 245(c)(1), exclusive jurisdiction in respect of all civil causes and matters connected to or arising from employment and labour related issues in the National Industrial Court notwithstanding the provisions of section 251, 257 and 272 of the constitution. Consequently, where the matter is not labour related or arising from employment, this court cannot assume jurisdiction. In the same vein, this court find it extremely difficult to agree with the claimant counsel to the effect that the word ‘dispute’ should be used in relation to a trade or profession and that where an action or decision of Federal government agency affects or connects or arise or incidental to the practice of a trade or profession, it is a trade dispute. With due respect to the learned counsel, the position of the third alteration Act, the Trade dispute Act, labour Act and the National Industrial Court Act 2006 do not accommodate or contemplate that definition. As earlier said trade dispute can only have employment, worker and employee relationship as a platform or pedestal on which a dispute on terms of employment or physical condition of work can be inferred. It cannot be inferred in isolation or within the context of restraint of trade or profession alone as in this case. From the reasoning and arguments stated in this ruling so far, it is crystally clear that the four questions raise earlier in trying to determine whether or not this court has jurisdiction over this suit are all answered in the negative. This is so because, the word “Notwithstanding” used in section 254 ( c) (1) of the 1999 constitution as amended does not obliterate or repeal section 251 P, Q, R of the said constitution except it borders on employment or labour related issues. The validity or otherwise of the defendants action in relation to the practice of the claimant as a Radiologist is not a labour, employment or work place issue, rather a matter for the Federal High Court under section 251 P, Q, R of the 1999 constitution as amended and I so hold. Consequently this court has no jurisdiction to entertain this suit. Since, this court lacks jurisdiction, it will be of no use for me to proceed further and consider the merit or otherwise of the substance of the matter in the originating summons. By the powers conferred on this court by section 24 (2) of the National Industrial Court Act 2006, this matter is hereby transferred to the Federal High Court in accordance with order 28(1) of the National Industrial Court Rules 2007 for subsequent hearing and determination. I make no order as to cost. Hon. Justice P.O Lifu (JP.) Judge