The purpose of this short article is very simple. The scuttled Enugu NMA election has come and gone. We are all looking up to the national NMA for directions as we await a repeat election in no distant time. The purpose of this article is to find out if there was any basis whatsoever for allowing only 106 Parklane residents (out of over 300 residents) to come to the polling place in an attempt to vote in that election.
One of the major reasons adduced by those that engineered the disruption of the election was that the ELECO refused to permit the 106 residents from Parklane from voting at the election. They relied on a stated earlier concession granted by the Enugu NMA leadership allowing 106 residents from Parklane Hospital to vote in that election. The Enugu NMA was said to have requested Parklane resident doctors to submit the names of 106 residents that would vote on behalf of the entire resident doctors of Parklane Hospital. The Enugu NMA dues collectively paid by the Parklane ARD leaders on behalf of the entire Parklane resident doctors was computed and found to only cover for 106 residents out of over 300 resident doctors and house officers working in Parklane. This drastic shortfall in eligible voters was occassioned by the corrupt practices of the leaderships of Parklane ARD refusing to remit the entire NMA dues already collected from the over 300 Parklane residents to Enugu NMA.
This article seeks to examine the legal rightness or wrongness of the said 106 concession given to Parklane doctors; and in the end, predict if the said 106 resident doctors would be part of the coming repeat election, in any event that the national NMA looked the other way and allow all the participants in the last botched election to go ahead and participate in the repeat election. The question this article will answer include whether all the Parklane residents ought to have been allowed to vote in that election, or whether no Parklane residents ought to have been allowed. At the middle ground is the last question of whether the 106 residents were legally correctly given the concession to vote at that election by the NMA Chairman.
We can only appreciate the true legal rightness or wrongness of the stated NMA concession to members of the Parklane resident doctors association (ARD) as soon as we identify the facts properly. Thus the facts are these: (a) Enugu NMA constitution recognises that each member of the NMA shall be independent in the payment of their association dues and levies and the enjoyment of the consequential rights and privileges. (b) Despite this provision of the NMA statute and law, the leadership of Parklane ARD wilfully interposed themselves inbetween NMA and the ARD, to collect the NMA dues of the entire members of the Parklane ARD, and thereafter pay the aggregate dues collected to NMA as agent of NMA (for dues collection from Parklane ARD members), as well as the agent of ARD members (for their dues payment to Enugu NMA). This interposition and arrangements over the years made Enugu NMA to change its position and stop worrying about going against the members of Parklane ARD as required by Enugu NMA constitution to recover the NMA dues and levies from them individually. Another important aspect of the discourse is the conduct of the affected Parklane resident doctors who (save for a few of them) appeared to have sanctioned this agency interloping of their serial ARD leaderships.
The important question now is: what is the true and actual legal position and impact of failure of the ARD leadership to fully pay dues and levies already collected from the entire Parklane ARD members, to Enugu NMA, on the enjoyment of the consequential NMA rights and privileges by members of such ARD either as individuals or as a group. It shall be seen shortly that the effect of such failure to fully remit the collected dues will work to stop all the members of the ARD Parklane collectively from enjoying their NMA rights and privileges. The ARD has become a whole rather than individualistic. This is because once the Parklane ARD leaders had, contrary to the clear provisions of the NMA constitution, decided to interpose inbetween individual members of the ARD and Enugu NMA as regards the collection and remittances of Enugu NMA dues, and Enugu NMA had continued to rely on this agency practice over the years by not proceeding against any member of that ARD to extract the NMA dues and levies from them; neither the ARD members nor the ARD Parklane leaderships are permitted by law to assert that the paid amount made to NMA, short of the full aggregate collected, is for a particular number of residents out of the whole. Estopel by conduct wades in to stop any reliance of Parklane ARD members on the clear provisions of the NMA law. The story would have been different if Enugu NMA had been computing the number of voters over the years by the total amount paid in. The facts at the moment clearly shows that NMA Enugu had never allowed proportional voters for Parklane residents in the past.
Estoppel is a legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law. It is meant to prevent people from being unjustly wronged by the inconsistencies of another person's words or actions. Estoppel can arise in different relationships like in principal and agent, landlord and tenant, bailor and bailee, licensees of IP and bank and customer. The ARD members are the principal while their leaders are the agent. Given all the elements of an estoppel in pais, present-day courts of equity will estop a person from setting up the statute where a moral fraud would result thereby. In other words, they will estop the person from denying the validity of a contract voidable under the Statute of Frauds. The subject is touched upon in a few case notes, among them (1922) 20 MIcH. L. REv. 356 and (1925) 74 U. OF PA.L. REv. 192 dealing with estoppel applied to parol alterations of written contracts within the statute, and (1922) 2 Wis. L. REV. 47 which criticizes the case of Peavey v. Loveland, 174 Wis. 57, 182 N. W. 349 (1921) insisting correctly, that the doctrine of estoppel should not apply if the parties can be put in status quo.
The Supreme Court of the United States, commenting on this phase of the law, has said: "Where a person tacitly encourages an act to be done (ARD members made Enugu NMA believe that the ARD leadership shall be collecting their NMA dues for NMA even when NMA never asked them to use an agent), he cannot afterwards exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the other party to change his position so that he will be pecuniarily prejudiced by the assertion of such adversary claim." Swain v. Seamans, 9 Wall. 254, at 274 (U. S. 1869).
Bringing estopel to Nigerian circumstances, the Nigerian Supreme Court, in the celebrated case of Adone v. Ikebudu (2001) 14 NWLR (Pt.733) 385 Per ONU. J.S.C.(Pp. 23-24, paras. E-G) had this to say:
"In the case of Ukaegbu v. Ugoji (1991) 6 NWLR (Part 196) 127 at 146, this court defined estoppel as:- " .... Estoppel is an admission or something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it ... Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them, has altered position".
The legal import of this decision of the Supreme Court of Nigeria is that all those who behaved in a particular way (the Parklane resident doctors and their leaderships in this case) to make another person (Enugu NMA in this case) to shift position (to rely on ARD Parklane leaderships to collect and remit the full aggregate of NMA dues from the entire membership of Parklane ARD instead of NMA going after individual members of Parklane ARD to extract the NMA dues in this case) cannot be allowed by law to claim that Enugu NMA constitution provided for individualized payments of dues and individualized enjoyment of NMA rights and privileges. This is because ARD Parklane had decided to pay dues together as one group and one whole. They will rise and sink as one group and one whole also. They cannot turn around to claim individualized existence and individualized enjoyment of benefits as members, because estoppel should not apply if the parties cannot be put in the status quo ante bellum. The status quo ante bellum in the scenario under discussion is individualized payment. Given the underpayment of the aggregate total, there is no way that the proportional payment could be individualized as the payments were not tied to individual members. The payment was tied to the whole. The high point of this discussion is that even the recently employed residents who are currently up to date with payment of dues are smitten by this failure of full remittance as long as they are identified as members of the Parklane ARD. This is because the discussed estopel by conduct afflicts all the members of the ARD Parklane who have not timeously denounced the agency relationships interloped by the ARD leaderships.
I cannot end this discussion on estopel by conduct without touching on another seeming estopel as contended by people on the other side of the divide. They appear to imply that the acceptance of N200,000.00 from Parklane ARD as the full NMA dues for the entire ARD membership, over these years, amounted to estopel against Enugu NMA to demand full remittance. Those that have propagated this theorem appear not to have understood the meaning and ingredients of estopel by conduct. The party that is affected by estopel is the party that would financially gain if estopel did not stop him. Thus, Enugu NMA cannot be stopped by estopel as it would not gain anything financially from allowing Parklane ARD to keep underpaying NMA dues. In fact, NMA Enugu will be losing financially yearly. Secondly, as canvassed above, estopel is employed to rectify moral wrong. Estopel washes moral wrong, and the moral wrong here is the continued underpayment of NMA dues by Parklane residents. Estopel would therefore compel Enugu NMA to insist on full payment of NMA dues as well as compel Parklane ARD to pay their aggregate NMA dues fully. Thus, estopel does not arise from the acceptance of underpayment by NMA Enugu over the years.
In conclusion, the Enugu NMA Chairman was wrong in purporting to allow 106 Parklane residents to vote at the botched Enugu NMA election on 8th August 2020. The chairman and his EXCO cannot lawfully divide the ARD whole into an ARD pieces. The payment of less than the aggregate amount collected by the entire membership of an association (ARD) to another association (Enugu NMA) makes such payment ineffective for the enjoyment of rights and privileges of any of the Individual members of the paying association as a whole, if the status quo ante bellum cannot be restored. Only the individual members of such ARD leadership type of agency are excemped from the estopel under discussion. Therefore, the 106 residents purportedly allowed to vote at the botched Enugu NMA election was an unconstitutionally magnanimity, which was not even appreciated by the recipients that went ahead to cause mayhem at the election by destroying the electoral materials. This unconstitutional act of magnanimity must be curtailed in any subsequent activities of the Enugu NMA.
Fred Awkadigwe
ESUT Parklane Legal Assistant
08039555380
No comments:
Post a Comment