IMPLIED REPEAL OF STATUTE AND THE NATIONAL INDUSTRIAL COURT OF NIGERIA'S DECISIONS NICN/EN/53/2017, NICN/ABJ/182/2016, NICN/ABJ/284/2014); A MOCKERY OF THE SUPREME COURT DECISION IN AKINTOKUN'S CASE.

1.0. The ratio in the case of Akintokun v LPDC (2014) LPELR 33941 (SC) is that the Legal Practitioners Act Cap L11 LFN 2004, which was in fact a copy of the Legal Practitioners Act enacted into Law in 1975, came later in time than the amendment done on that Act in 1994. The 1975 Act was re-enacted in the 2004 Laws of the Federation of Nigeria, but the 1994 amendment was not. In other words, when a Law is re-enacted in Laws of the Federation of Nigeria, the Law is taken to have been born on the day of the enactment of the edition of the particular Act of the Federation of Nigeria, for the purposes of ascertaining which Law came first in time, for proper application of Akintokun v LPDC (2014) LPELR 33941 (SC).

1.1. The above decision of the apex Court of the land has become monumental in the recent cases of NICN/EN/53/2017, NICN/ABJ/182/2016, & NICN/ABJ/284/2014) essentially between the Medical Laboratory Scientists and the Pathologists in Nigeria (henceforth called the Pathologists case). In the Pathologists case, the National Industrial Court of Nigeria (NICN) vehemently applied Akintokun v LPDC (2014) LPELR 33941 (SC) to two Acts of the National Assembly namely the Medical and Dental Practitioners Act Cap M8 LFN 2004 and the Medical Laboratory Science Council of Nigeria Act 2003. Curiously, the NICN held that the Medical and Dental Council of Nigeria Act Cap M8 LFN 2004 was older than the Medical Laboratory Science Council of Nigeria Act 2003. Recall that the version of the Medical and Dental Practitioners Act found in Cap M8 LFN 2004 was the version initially enacted into Law in 1988 by the National Assembly of Nigeria. It is also noteworthy that the Medical Laboratory Science Council of Nigeria Act 2003, which was enacted into Law in 2003 by the National Assembly of Nigeria, sought to repeal and replace the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004. 

2.0. The author of this article is not in sync with the ominous progenitor in the Akintoken's case; but Akintokun being the extant Law on implied repeal in Nigeria, few points are obviously in vociferous existence to severely interrogate the foundation for the decision in the stated pathologists cases to the extent of global subversion of whatever ratio there-to-be.

2.1. First, the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004, on the obvious authority of Akintokun, is the extant Law regulating medical laboratory science practice in Nigeria; and not the Medical Laboratory Science Council of Nigeria Act 2003. This is because Cap I14 LFN 2004 is deemed a newer Law than the Medical Laboratory Science Council of Nigeria Act 2003. Thus Cap I14 2004 impliedly repealed the Medical Laboratory Science Council of Nigeria Act 2003, being that it was made in 2004 which is later in time, on the authority of Akintokun. 

2.2. Second, assuming without conceding that Cap I14 LFN 2004 did not impliedly repeal the Medical Laboratory Science Council of Nigeria Act 2003, and that Medical Laboratory Science Council of Nigeria Act 2003 is in fact the extant Law on medical laboratory science practice in Nigeria; yet, the Medical Laboratory Science Council of Nigeria Act 2003, which is not contained in the LFN 2004, is deemed older in time than Medical and Dental Council of Nigeria Act Cap M8 LFN 2004. Thus, in a situation of incompatible conflict necessitating the application of Akintokun between the two Acts, the Medical and Dental Council of Nigeria Act Cap M8 LFN 2004 will definitely impliedly repeal the older Medical Laboratory Science Council of Nigeria Act 2003, and not the other way around.

2.3. Third, even if the Medical Laboratory Science Council of Nigeria Act 2003 was contained in the LFN 2004, it cannot be said that it came newer in time than Medical and Dental Council of Nigeria Act Cap M8 LFN 2004 as both of them would have been deemed to have been enacted the same year 2004.

3.0. It must be clearly noted that the application of Akintokun's case to the pathologists case, in the first place, was uncalled for, unwarranted and inapposite, the two considered Acts being in totally different fields and professions. The reasons for the inapplicability of Akintokun to the two considered Acts are legion.

3.1. First, implied repeal does not apply to the Acts of Parliament in unidentical areas or fields. The doctrine of implied repeal is based on the principle that if the subject matter of the subsequent legislation is identical (note identical) to the earlier legislation to such an extent that it becomes impossible for them to stand together, then the earlier law shall be impliedly repealed by the subsequent legislation. See Pt. Rishikesh & Anr. v. Salma Begum (Smt.) Civil Appeal No. 1266 of 1979 (an Indian case).  

3.1.1. It is a cardinal principle of the law that statutes are not repealed by inference or implication but by direct provision of law. (See Raleigh Industries Ltd v Nwaisu (1994) 4 NWLR (Part 341) 760 771). See also JOSEPH IBIDAPO v LUFTHANSA AIRLINES [1997] 4 NWLR (Pt.498), Page 124 at 163,paras E-F. 

3.1.2. Implied repeal is only entertained where the subject matter is not only similar, but holistically identical. In the pathologists cases, the subject matter of the area in purported conflict was not identical. A cursory look at the subject matter will reveal numerous variations in nomenclature of terms with incongruous and asynchronous specifications and subsumations of characters.  If anything, the subject matter only exhibited some hoax similarities of names that were not analyzed and considered at the trial court by expert witnesses to ascertain their significance from the professional meanings of the terms listed in the Acts.

3.2. Second, it was the decision of the court, in Akintokun v LPDC (2014) LPELR 33941 (SC), that the Legal Practitioners Act Cap L11 LFN 2004 was in conflict with its amendment and therefore the latter Act (ie Cap L11 2004) was deemed to have repealed the conflicting provisions found in the 1994 amendment (not contained in LFN 2004) by implication. The principle of implied repeal was applied in Akintokun's case because the subject matter in both Acts was identical. The application of the doctrine of LEGES POSTERIORES PRIORES CONTRARIAS ABROGANT enunciated in Akintokun's case, cannot hold true when confronted with two different Laws regulating two different professional bodies with two different regulating agencies as obtains in the Pathologists case. 

3.2.1. In other words, a recent enactment can only impliedly repeal an older enactment if and only if the recent enactment can repeal and replace the older enactment because they are so identical and incompatible that they cannot exist side by side. Only express repeal can be invoked where subject matters of the two enactments are divergent as seen in the Pathologists case. 

3.2.2. In reality, however, the Medical Laboratory Science Council of Nigeria Act 2003 can only repeal the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004, or vice versa, as both are enactments in the same professional field. 

3.2.3. In fact,  the Medical Laboratory Science Council of Nigeria Act 2003 expressly and clearly stated at its Section 1 that the Institute of Medical Laboratory Technology Act has been repealed. The legal maxim is captured in expressio unius est exdusio alterius - meaning that the express use of a word or words is an implied exclusion of another or others. See Attorney-General of Lagos State v. Attorney-General of the Federation (2014) 9 NWLR (pt 1412) 217-322; Azubuike v. Government of Enugu State (2014) 5 NWLR (pt 1400) 364-411). This clearly showed that Legislature did not intend to repeal any other Act of the National Assembly using the instrumentality of the Medical Laboratory Science Council of Nigeria Act 2003, either expressly or impliedly. 

3.2.4. Thus, having expressly mentioned the Act it wanted repealed at its Section 1, the National Assembly cannot be imputed to have impliedly repealed any other Act in the medical laboratory science field or in any other field remote to medical laboratory science. The Medical Laboratory Science Council of Nigeria Act 2003 cannot impliedly abrogate any enactment in the Medical and Dental Practitioners Act Cap M8 LFN 2004, a professional enactment in a totally different field of human endeavor, and which incidentally, was re-enacted into Law posteriores. 

3.3. Third, in order to determine the application of implied repeal, the following three issues need to be addressed: 

3.3.1. There must be a direct conflict between the two provisions in question. 

3.3.2. The Legislature must have evinced an intention to lay down an exhaustive code in respect of the subject matter replacing the earlier statute. For this purpose, it would be essential for the later enactment to incorporate the entire subject matter that the former law was dealing with. This can only be seen in legislation on the same and identical field.

3.3.3. The two legislations must fall within the same field. For the above three mandatory conditions, see Criminal Appeals Nos. 151-58 of 1996 (Indian case). 

3.3.4. In the State of M.P. v. Kedia Leather & Liquor Ltd. and Ors Criminal Appeals Nos. 151-58 of 1996 (India), the Supreme Court observed that there is a presumption against repeal by implication. This is based on the view that while enacting laws on a particular subject, the Legislature has a thorough knowledge of the laws that are already in force on that subject; therefore, the absence of a repealing provision in the subsequent law would imply the intention of the Legislature that the existing provision should not be repealed. Moreover, the Legislature would never intend to create confusion by retaining conflicting provisions. This presumption can only be rebuttable to bring about repeal by necessary implication. This rebuttal is completely absent in the submissions of the laboratory scientists.

3.4. Fourth, a look at the functions of the regulatory body of the Medical Laboratory Scientists and the definition of Laboratory in the extant and repealed Laws of the Medical Laboratory Scientists (see also section 19 of the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004, and section 29 of the Medical Laboratory Science Council of Nigeria Act 2003 on the definition of Laboratory) shows that the laboratory provided for the Medical Laboratory Scientists is the Medical Technology Laboratory as contained in the founding Act, and not Hospital Laboratory. This laboratory did not change with the enactment of the newer Act. In fact, the newer Act did not evince any intention to change the laboratory. It only removed "Technology" from the name of the laboratory, having replaced it with"Scientist" in the newer Act. In other words, it was purely a change in nomenclature and not function. 

3.4.1. See also Paragraph 1(2) of the 3rd Schedule to the Medical Laboratory Science Council of Nigeria Act 2003 which stated that: "All persons previously registered as Medical Laboratory Technologists by the Institute of Medical Laboratory Technology shall at the commencement of this Act be referred to as Medical Laboratory Scientists and be considered registered by the Council accordingly". This Paragraph literally changed the names of the practitioners from Medical Laboratory Technologists contained in the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004, to Medical Laboratory Scientists as contained in Medical Laboratory Science Council of Nigeria Act 2003, without doing any violence to their hitherto known rights, functions and duties that they presently claim to have acquired under the "repealing" Act. Note that the Medical Laboratory Science Council of Nigeria Act 2003 did not, in fact, successfully repeal the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004) as it sought to repeal an Act that postdated it.

4.0. The issue of repeal of an Act, much less implied repeal, cannot be adjudicated at the trial court in the absence of necessary and proper parties properly sought out and joined. 

4.1. The National Assembly of Nigeria enacted the National Medical College Act Cap N59 LFN 2004, and Medical Residency Training Act 2017. Note that the National Medical College Act Cap N59 LFN 2004 is newer than the Medical Laboratory Science Council of Nigeria Act 2003 on the authority of Akintokun. In both Acts, the National Assembly created and mandated a statutory body known as the National (Postgraduate) Medical College to train medical practitioners in specifically-enacted postgraduate medical fields. Pathology, which is the subject matter of the Pathologists case, was clearly created and mandated in the National Medical College Act Cap N59 LFN 2004, the Medical Residency Training Act 2017 and the Medical and Dental Council of Nigeria Act Cap M8 LFN 2004 ie three Acts of the National Assembly specifically made for medical practitioners in Nigeria. 

4.2. It is therefore unfathomable how  Paragraph 1(2) of the 3rd Schedule to the Medical Laboratory Science Council of Nigeria Act 2003, which merely renamed Medical Laboratory Technologists to Medical Laboratory Scientists without altering their statutory functions, be presumed or assumed by the trial court, to have abrogated pathologists that are under another profession managed under three autonomous Acts, viz National Medical College Act Cap N59 LFN 2004, the Medical Residency Training Act 2017 and the Medical and Dental Council of Nigeria Act Cap M8 LFN 2004.

4.3. It is also unfathomable how an Act in another field of study (Medical Laboratory Science Council of Nigeria Act 2003) could be assumed or presumed by the trial court, to have impliedly scrapped subsisting enactments in the three subsisting and active medical Acts. 

4.4. What is more, neither the Medical and Dental Council of Nigeria (saddled with the function of training undergraduate pathologists) nor the National (Postgraduate) Medical College of Nigeria (saddled with the function of training postgraduate pathologists) was joined in the suit at the trial NICN before scrapping them in their functions in a matter that directly touched on them.

5.0. A cursory look at the whole length and breath of the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004, and the Medical Laboratory Science Council of Nigeria Act 2003 will clearly show that Legislature did not evince any intention of expanding the functions of the Medical Laboratory Scientists in the Medical Laboratory Science Council of Nigeria Act 2003 more than what their functions used to be under the Institute of Medical Laboratory Technology Act Cap I14 LFN 2004 as Medical Laboratory Technologists. There is no such intendment. The two Acts are almost the same enactments except in change of names and nomenclatures.

5.1. The Medical Laboratory Technologists, since 1968, (when the Institute of Medical Laboratory Technology Decree of 1968 and which was later re-enacted as  Institute of Medical Laboratory Technology Act Cap I14 LFN 2004 was promulgated), have never been pretentious about the scope of their functions within the hospital laboratory settings when called in from the Medical Technology Laboratories into the Pathologists' Laboratories in the hospitals.

5.2. There is nothing in the Medical Laboratory Science Council of Nigeria Act 2003 whatsoever to suggest that the functions of the Medical Laboratory Scientists have been expanded in  scope in the, now contentious, Medical Laboratory Scientists in the Medical Laboratory Science Council of Nigeria Act 2003 so much as to abrogate the subsisting scope of functions of the pathologists who are in a totally different profession. 

5.3. The Pathologists have always manned the hospital laboratories in piece with the Medical Laboratory Technologists assisting them in bench sample analysis since the promulgation of the Instute of the Medical Laboratory Technology Decree of 1968. The recent hue and cry that the Medical Laboratory Science Council of Nigeria Act 2003 has created a new profession to abrogate pathology is thus unfounded. The opinion of the NICN on the functional status of the Medical Laboratory Scientist was formed per incuriam as it is obvious that the court did not read the "repealed" Institute of Medical Laboratory Technology Act Cap I14 LFN 2004

© Fredrick Ikenna Awkadigwe (MBBS Nig, LLB Nig, MWACS, FWACS, SC)