This article aims to lay bare the facts surrounding the current constitution of the Nigerian Medical Association (NMA) as an illegal contraption with no legal authorization used to enslave and swindle Nigerian doctors against the clear provisions of the regulatory laws in Nigeria. The omnibus law regulating the formation and control of every association in Nigeria is the Companies and Allied Matters Act (CAMA). Any association in Nigeria that forms and operates outside the clear provisions of CAMA is illegal. The NMA is one such an association.
There are many problems with the said constitution of NMA which shall be overlooked so as to dwell specifically on the major reason for this article; which is the numerous NMA constitutional contraventions of the clear provisions of the Companies and Allied Matters Act that is the law regulating law for the formation of incorporated associations in Nigeria. Both the CAMA 2004 and CAMA 2020 are clear on the requirements for the formation and existence of associations in Nigeria. This piece of legislation even went further to provide that any association in Nigeria not formed according the CAMA shall be void.
On Saturday 29th April, 2017, the Annual Delegates Meeting of NMA (not being the General Meeting of the association) purportedly made a brand new Constitution for the NMA in Calabar, Cross River State of Nigeria. This new constitution was not stated to be a continuation of any repealed or replaced constitution of the NMA. There was also no savings of the acts done pursuant to any prior constitution of the association in the new constitution. The brand new constitution was thus brand new for all intents and purposes. Even the Certificate of Registration of the Incorporated Trustees of the Nigeria Medical Association spotted as the Certificate of Registration of the Incorporated Trustees of the NMA was not referred to in the new constitution. That Certificate of Registration was obtained from the Corporate Affairs Commission on 31st July 1964, pursuant to the Companies and Allied Matters Decree No 1 of 1990.
The 2017 NMA constitution was made during the tenure of the 2004 CAMA. It must be stated that almost all the provisions of the CAMA 2004 on the formation of associations have been reenacted in the CAMA 2020. Therefore, in this article, any citation from CAMA 2020 has its corresponding provisions in CAMA 2004 albeit in different sections. Incidentally, the purported Certificate of Registration of the Incorporated Trustees of the NMA had 10 trustees as against 12 trustees stipulated in the 2017 NMA constitution. It is not only that. The 2017 NMA constitution stated that the Trustees shall be known as the Registered Trustees, and not the Incorporated Trustees. Yet, the Trustees, according to the 2017 NMA constitution, were to apply for a Certificate of Incorporation under the defunct Land Perpetual Succession Act Cap 98.
Now, having enumerated the obvious inconsistencies riddling the 2017 NMA constitution, which inconsistencies could ordinarily and validly nullify the said constitution, I shall now dwell on the real crux of this article, which is that the 2017 NMA constitution is an illegal contraption contravening CAMA, even if the other enumerated inconsistencies in the constitution are incapable of invalidating the constitution. Below is the section by section analysis of CAMA 2020 in view of the provisions of the 2017 NMA constitution.
RELEVANT CAMA PROVISIONS.
1. CAMA 2020 Section 827: The constitution of the association shall in addition to any other matter —(a) state the name or title of the association;(b) the aims and objects of the association; and(c) make provisions, in respect of the following —(i) appointment, powers, duties, tenure of office and replacement of the trustees, (ii) the use and custody of the common seal, if there is one, (iii) the meetings of the association ........
2. CAMA 2020 Section 833: Subject to sections 827 and 828 of this Part, an association whose trustees are incorporated under this Part may alter its constitution by resolution passed by simple majority of its members and approved by the Commission.
3. CAMA 2020 Section 834: (1) Where a body or association intends to replace some or all its trustees or to appoint additional trustees, it may by resolution at a general meeting do so and apply in the prescribed form for the approval of the Commission ........
4. CAMA 2020 Section 835: Any change or alteration purported to be made in contravention of section 832, 833 or 834 of this Part of this Act shall be void.
EXPLANATORIES.
1. The constitution of NMA did not provide for the meetings of the association as clearly stipulated in Section 827(a)(iii) above. There is no place in the NMA constitution for the general meetings of the association be they the Annual General Meeting, the Ordinary General Meeting or the Emergency General Meeting of the association. The only meetings provided for are for the small organs of the association like the meetings of the NOC, NEC and ADM. These meetings do not qualify as the meetings of the association as provided by CAMA. In fact, CAMA did not provide for NOC, NEC or ADM.
2. The constitution of NMA did not make provisions for obtaining the simple majority of its members as contained in Section 833 above for the association constitutional amendment. There is no provision for General Meetings of the association in the first place. Thus, there is no way a simple majority would be obtained. The resolution of the ADM that made the 2017 NMA constitution cannot qualify for the statutory provision for a simple majority of members. The statutory rights of members to participate at the general meetings of the association cannot be taken away without an express consent of each individual authorizing his proxy. The association constitution is incapable of taking away a statutory right of an association member who was prohibited from participating in, and thus not even privy to the making of such a constitution.
3. The constitution of NMA did not provide for resolutions at a General Meeting of the association as contained in Section 834 above for appointment or replacement of Trustees of the association. What is more!!! The association constitution, made by selfacclaimed delegates that were not express proxies of the members of the association, gave to themselves the powers to appoint trustees for NMA. What an audacity. Curiously, there is no provision for proxy voting in association meetings as there is in the company voting as contained in the CAMA.
4. The CAMA, in order to remove all iota of doubt from its provisions, voided any act done in contravention of the relevant sections of the Act as it affects general meetings of any association. Section 600 of CAMA 2004 which is in pari materia to Section 835 of CAMA 2020 voided all the actions and inactions of the selfacclaimed delegates of NMA. This is remarkable.
In conclusion, a cursory look at the provisions of the NBA (the Nigerian Bar Association) constitution 2015 and specifically the provisions of the NMB (the Nigerian Medical Bloc) constitution 2018, shows that they are more in accord with the clear provisions of CAMA for an association in Nigeria to be legal. The constitution of NMA 2017 is a sheer anachronism in the face of the clear provisions of CAMA which is the omnibus law in Nigeria for the formation and regulation of associations particularly associations with incorporated trustees. The law is clear that any such associations must comply with the clear provisions of CAMA. NMA constitution does not comply with CAMA. It is in contravention of CAMA and void. The punitive measures for any person that operates such constitution is also provided. We cannot afford to continue like this. The time is now to rescue our noble profession and association.
Ikenna Fredrick Awkadigwe (MBBS, LLB, MWACS, SC)
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