Subsection 45(1) Of The Nigerian Constitution: A Limitation Clause For The Siracusa Principles, Or An Unconstitutional Judicial Construct?

 

Subsection 45(1) Of The Nigerian Constitution: A Limitation Clause For The Siracusa Principles, Or An Unconstitutional Judicial Construct?

Judicial Construct Of Limitation Clause Into The Nigerian Constitution.

Fredrick Ikenna Awkadigwe*

Abstract 

Nigerian courts have consistently determined that subsection 45(1) of the Constitution of the Federal Republic of Nigeria (CFRN) is a limitation clause on the fundamental constitutional rights of persons in Nigeria. Nigerian courts consequently apply the Siracusa Principles to justify the limitation to or criminalization of guaranteed fundamental constitutional rights of persons. The objective of this paper is to determine whether subsection 45(1) of the CFRN, as held by the courts, is indeed a fundamental right limitation clause construed by the application of the Siracusa Principles; or an unconstitutional judicial construct that harms guaranteed fundamental rights. The methodology is socio-legal. The paper finds that subsection 45(1) of the CFRN has no fundamental right limitation capability, and that the subsection only makes it possible for advantaged and disadvantaged persons in Nigeria to equally partake in the enjoyment of the fundamental constitutional rights entrenched in sections 37-41 of the CFRN. The paper recommends that Nigerian courts should adopt the principle of ad hoc judicial balancing as a national constitution without limitation clause, and jettison the current Siracusa Principles which have no connection whatsoever to the actual provisions of subsection 45(1) of the CFRN.

Keywords: Nigerian Constitution, Siracusa Principles, Ad hoc judicial balancing, Guaranteed fundamental right, Limitation clause.

1. Introduction 

Fundamental constitutional rights are those rights of persons which stand above the ordinary laws of the land, and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence. According to the Court in Asemota v Yesufu & Anor, fundamental right is an undoubted inalienable right which corresponds to a jus naturale, a natural law. The fundamental rights are inserted into the Constitution of the Federal Republic of Nigeria (CFRN) in sections 33-45 of the CFRN, while section 46 of the CFRN provides for the enforcement of the rights. The fundamental constitutional rights under the CFRN include; right to life; dignity of human person; liberty, fair hearing; private and family life; freedom of thought, conscience and religion; freedom of expression and press; peaceful assembly and association; movement; freedom from discrimination; right to acquire and own immoveable property. Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. It is trite that once an infringement of fundamental right is proved or established the award of compensation in form of monetary damages, whether claimed or not, follows. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of the Fundamental Human Rights procedure. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the fundamental rights of individuals from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed.  

The protection afforded fundamental rights by inserting and preserving them in national constitutions and international conventions shows the monumental importance attached to the protection of fundamental rights in different parts of the world. Because fundamental rights are written into the national constitutions, the rights, like every other right emanating directly from the provisions of the CFRN, cannot be controlled by the legislatures unless with a constitutional approval. Any right conferred or vested by the CFRN cannot be taken away or interfered with by the executive, any other legislation or statutory provision, except by the CFRN itself. Any law purportedly made which abrogates a right conferred by the CFRN will be void to the extent of its inconsistency. The constitutional power of legislatures to make ordinary laws is not absolute. In Lawrence v. Texas, the court invalidated criminal sodomy laws in 14 states of the United States, holding that intimate consensual sexual conduct is part of the liberty protected by the substantive due process under the Fourteenth Amendment. In Griswold v. Connecticut, the US supreme court relied upon substantive due process as a principal basis for invalidating a law barring the use of contraceptives by married couples. Just like legislative powers, fundamental rights are also not absolute. For instance, the right to personal liberty guaranteed under section 35(1) of the CFRN 1999 is not absolute but, by the provision of section 35(1)(c) of the CFRN, is subject to the powers of the police to arrest a person who has committed or is suspected to have committed a criminal offence. A fundamental constitutional right is said to be guaranteed where its provision or an aspect of its provision cannot be manipulated by the legislatures.

However, although guaranteed fundamental rights are absolute because they cannot be manipulated by the legislatures, yet the enjoyment of guaranteed fundamental rights is not to be absolute because the rights are usually under graded levels of control, even when they are guaranteed. For instance, fundamental right to privacy in section 37 of the CFRN is expressed in absolute terms, constitutionally guaranteed, and cannot be legislatively manipulated under the section 37 of the CFRN. Yet, the exercise of that right is not absolute when confronted with some executive powers under other provisions of the CFRN. The control of the exercise of guaranteed fundamental rights ranges from ordinary legislative control, constitutional control, executive control and judicial control, in an ascending order of the strength of guarantee of the fundamental rights. The judicial position that once a person lives in a community, his rights stop where the rights of the other members of the community begin, has to be placed in the proper context. This position of the courts is not borne out of any constitutional provision. Instead, the CFRN envisages situations where fundamental rights of persons dig into persons, hence the promulgation of section 6 and 36 of the CFRN for the judicial, not legislative, resolution of such digs. In other words, while there are areas where the CFRN empowered the legislatures to make ordinary laws for fundamental rights, those areas not mentioned are, unless sanctioned otherwise by the CFRN itself, left for judicial balancing of the rights. For instance, section 35(1) of the CFRN is categorical about the cases that legislatures can cover with ordinary laws in limitation of personal liberty. It simply means that any case outside the listed cases cannot be used to limit personal liberty in Nigeria. Thus, the failure of a person to carry out an obligation that is not imposed by an ordinary law, even if the curtailing of the liberty right is permitted by an ordinary law, cannot be used to curtail personal liberty. The case and the procedure permitted by ordinary law must coexist before they can be used to limit personal liberty. Thus, an ordinary law cannot empower the arrest of a person without an ordinary law creating an obligation that the person needs to carry out within the different outlined cases in section 35 of the CFRN. Section 35(1)(b) empowers the legislatures to make ordinary laws limiting personal liberty by reason of a person's failure to comply with the order of a court or in order to secure the fulfilment of any obligation (criminal or civil) imposed upon him by a statute. What this means is that what a policeman needs to lawfully arrest a person that breaches a statutory obligation are an ordinary law creating the statutory obligation, and another ordinary law providing a procedure for the arrest of persons that breach that statutory obligation. In Nigeria, although there are ordinary laws creating statutory obligations, yet there is no ordinary law creating procedures for the arrest of persons that breach statutory obligations, as seen amongst statutory obligees. Interestingly, the purpose of such arrests is limited to the securing of the fulfilment of any obligation imposed upon him by a statute, and not for criminal prosecution. In Enugu state, for instance, the traffic law of the state, the licensing officers can limit personal liberties of motorists until they fulfil their obligations under the traffic law, and not as a punishment for failing in their criminalized statutory obligations. The cases outlined under section 35(1) of the CFRN are disjunctive. An ordinary law is either made under section 35(1)(b) or 35(1)(c) of the CFRN, and not under both. 

Fundamental rights are variously controlled in the national constitutions of different countries where they are preserved using different constitutional mechanisms, so as to engender harmonious enjoyment of these rights, by the different persons that are equally entitled to them. Under the CFRN, the different constitutional mechanisms used, range from the use of exemption terms or phrases within a fundamental right section to exempt some attributes of the protected fundamental right, use of subsections to create some exceptions to the preserved fundamental right, use of schedules to the CFRN to empower the legislatures to make ordinary laws in fields already covered by the fundamental rights section, use of another section of the CFRN to create a parallel or opposing right, empowering the legislatures to make restrictive ordinary laws in the field of the fundamental right, use of fundamental right limitation provision or clause to empower the legislatures to limit fundamental rights in a particular condition, or empowering the legislatures to make ordinary laws that derogate fundamental rights. The list of constitutional mechanisms for the control of the exercise of fundamental constitutional rights by persons is not closed. 

The court, while pronouncing on the provision of section 12 (4) of the Trade Unions Act of Nigeria, in National Union of Shop and Distributive Employees (NUSDE) v The Steel and Engineering Workers Union of Nigeria (SEWUN), held that: 

On the issue of voluntarism, the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act, Cap T14, LFN, 2004. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU VS ASCSN (2004) 1 NLLR (PT. 3) 429 and Osawe v Registrar of Trade Unions, (supra). Even the fundamental rights guaranteed in chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) & (b) provides for derogation from these rights. 

Erasmus Osawe & 2 Ors v. Registrar of Trade Unions, has also held that the fundamental right enshrined under section 37 of the CFRN of 1979 for freedom of association as Trade Union is subject to the derogation set out in section 40(1)(a) of the said CFRN. The court determines section 37 of the CFRN is not absolute as it cannot invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health. In Clement Aviomoh v The Commissioner of Police, the court holds that the right to freedom of expression guaranteed by section 39 of the CFRN is by section 45(1)(b) subject to any law reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons. Nigerian courts have therefore consistently determined that subsection 45(1) of the CFRN is a limitation clause on the fundamental constitutional rights of persons in Nigeria. Nigerian courts therefore apply the Siracusa Principles to justify the limitation and criminalization to guaranteed fundamental constitutional rights of persons. The objective of this paper is to determine wether section 45(1) of the CFRN is indeed a fundamental right limitation clause as held by the courts; or an unconstitutional and unnecessary judicial construct that harms guaranteed fundamental rights through the application of the Siracusa Principles and criminalization. The paper is organized in five parts, including Part One, this Introduction. Part two discusses section 45(1) of the CFRN. Part three discusses fundamental right limitation clause. Part four discusses limitation clause in other jurisdictions of Canada and USA, while chapter five concludes the paper.

2. Section 45(1) of the CFRN.

The supreme court of Nigeria (SCONA), in Aviomoh v COP, holds that section 45(1) of the CFRN is a limitation to the fundamental rights in sections 37-41 of the CFRN. In fact, the SCONA even goes further than that holding, to hold, though as an orbiter, that section 45(1) of the CFRN excludes the supremacy provision in section 1(3) of the CFRN. How the Law Lords arrived at that conclusion is most baffling in the light of the clear provisions of the CFRN, and the previous decisions of the same SCONA, particularly in Nkwocha v Governor of Anambra state. According to Helen Moronkeji Ogunwumiju, JSC in Clement Aviomoh v The Commissioner of Police: 

The right to freedom of expression guaranteed by section 39 of the Constitution is by section 45 (1)(b) subject to any lawreasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons. Although section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in sections 37, 38, 39,40 and 41, derogations must be legal, that is, made under a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others. In Cheranci v Cheranci (1962) N.R.N.L.R. 29 Bates J. identified the principles that govern whether a restriction of rights is reasonably justifiable in a democratic society, namely: The law must be necessary for the interest of public (a) morality or public order, etc. It must not be excessive or out of proportion to the (b) objective which it sought to achieve. It may be argued that punishing defamation with criminal conviction and pain of imprisonment is excessive and out of proportion to the objective of protecting the reputation damaged by defamation when the civil law provides sufficient remedy to the person aggrieved. The phrase “necessary in a democratic society” has also been interpreted by the European Court of Human Rights, which held that for an interference to be necessary, it must be justified by a 'pressing social need' relating to one or more of the legitimate aims (Observer and Guardian v. The United Kingdom, judgment of 26 November 1991, A216 paragraph 71). In determining whether such a need exists: i) Attention must be paid to the particular facts of the case and to the circumstances prevailing in the given country at the time (Lingens v. Austria, judgment of 8 July 1986, A 103 paragraph 43). ii) The state’s action must also be based upon “anacceptable assessment of the relevant facts.” (Oberschlick v. Austria, judgment of 23 May 1991, A204, paragraph 60). Although the phrase used in the European Convention on Human Rights is different from “reasonably justifiable” used in the Nigerian Constitution, there is no material difference in the meaning of the phrases; the essence being to provide parameters for justifiable State action restricting human rights ... The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights also enumerate guiding principles in assessing whether a restriction or limitation of fundamental rights is permissible or not. Specifically, that the restriction or limitation is: Provided for and carried out in accordance with the (i) law; Directed toward a legitimate objective of general (ii) interest; Strictly necessary in a democratic society to achieve (iii) the objective; The least intrusive and restrictive available to reach (iv) the objective; Based on scientific evidence and neither arbitrary nor (v) discriminatory in application; and of limited duration, respectful of human dignity, and (vi) subject to review. The application of the above principles to the criminalization of defamation will yield the following conclusions: (i) the criminal law provides for defamation; the criminalization of defamation is directed toward a legitimate objective of general interest viz protecting (ii) reputation: it appears that the third principle does not support criminalization of defamation. This is because criminalizing defamation is not strictly necessary in a democratic society to achieve the objective. The tort of defamation already provides adequate remedy for (iii) anybody aggrieved by defamation; also applying the fourth principle the criminal lawis not the least intrusive and restrictive approach to achieving the objective of providing a remedy for defamation. The civil law approach is the least intrusive and less restrictive approach yet providing (iv) adequate and sufficient remedy for defamation. Based on the application of the last two principles above it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional.

As if that is not enough, Agim, JSC on the same subject matter of the constitutionality of criminal defamation law in Nigeria, has this to say:

There is no country in the world that has not made some law placing some restriction on the exercise of the right to freedom of expression within constitutionally permitted limits for the well-being of the country. Even international conventions on human rights accept the need for some justifiable restrictions. Example Article19(3) of the ICCPR provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring respect for the rights and reputations of others. That is why section 45(1) of the 1999 Constitution prescribes that such a restriction would be allowed, if it is reasonably justified in democratic society in the sense that it protects the proper functioning of the society democratically. S.45(1) of the 1999 Constitution operates to exclude the operation of S.1(3) of the Constitution where the restriction and resulting in consistency is reasonably justified in democratic society in the sense that it is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others. Another effect of S.45(1) of the Constitution is that the rights in sections 37, 38, 39, 40, and 41 are not absolute and can be restricted by law so far as the restriction is reasonably justified in a democratic society in the public interest and for the protection of the rights of other persons. See Osawe & Ors v. Registrar of Trade Union (1985) 5 SC 343, (1985) 1 NWLR (Pt.4) 755. Only the courts have the power to determine if a restriction is reasonably justified in a democratic society. 

The nagging questions that agitate the minds of the author of this work are: is section 45(1) of the CFRN a limitation clause; has section 45(1) of the CFRN excluded the constitutional effect of section 1(3) of the CFRN on ordinary laws made within the scope provided in section 45(1) of the CFRN; are the legislative restrictions

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)

THE MDCN, THE COLLEGE FELLOWS AND THE INSATIABLE PULCHRITUDINOUS REVENUE QUEST.

1.0. At the end of this article, it shall be abundantly clear that the Medical and Dental Council of Nigeria (MDCN) is not empowered by law to demand for money from specialists in Nigeria for the specialists' inclusion of their additional qualifications to their names in the Medical Registers.

1.1. What is even more baffling and embarrassing is that the MDCN does not just demand for money from the specialists to include their additional qualifications to their names in the Medical Registers in Nigeria, but that MDCN goes ahead to peg a timeline within which the additional qualifications must be brought for registration and failure to bring such additional qualifications the specialist is charged a whopping penalty of twenty thousand naira. 

1.2. Worse still, the timeline starts on the date of passing the relevant postgraduate exams and not even from the date of award of the additional qualifications. The question there is then whether the specialist is registering result or registering awarded Fellowship. For while passing the Fellowship Exam is the first step to the award of Fellowship, passing Fellowship Exam is not synonymous with the award of Fellowship.

1.3. One is then left without any iota of doubt that the officials at the MDCN, against the clear provisions of all the laws regulating MDCN, snatched the ram of medical standards and slaughtered it right on the altar of questionable revenue drive.

2.0. At the threshold of this discussion, it must be stated clearly that Fellowship qualification is not an "approved qualification" as envisaged by section 6(2) of the Medical and Dental Practitioners Act (MADPA). Fellowship is a creation of laws (see National Medical College Act and the Medical Residency Training Act). Fellowship is not under the MDCN, much less being "approved" by the MDCN. Fellowship is superior to the MDCN. The remotest possibility is that it could fall within what MADPA stated as "accepted qualification" as provided in section 6(4)(c) of the Act. Yet, Fellowship cannot be said to be an accepted qualification or recognized qualification in any way whatsoever, as it is a legal entity in itself superior to the purported state of mind of MDCN as per acceptance or recognition by the MDCN. The mental position of the MDCN is immaterial when considering the appropriateness of the Fellowship. However, for the purposes of this discussion, we shall assume that Fellowship is registrable with the MDCN; if not for anything, the registration of additional qualifications by the Fellow will serve the purpose of Notice to the entire world that he is a specialist and thus a Consultant in that area. After all, that is what the Medical Register is all about - Notice. It is thus incumbent upon and imperative of the MDCN to include Fellowship qualifications of practitioners in the Medical Register as of exigent unconditional responsibility and function.

2.1. It is also submitted that section 6(3) of the MADPA provided for the keeping of three Registers (of the names, addresses and approved qualifications) only, by the Registrar of the MDCN. These were stated in the Act to be Registers of Fully Registered Practitioners, Provisionally Registered Practitioners and Practitioners of Limited Registration. No other Register is allowed by the Act. Section 6(7) even goes ahead to state that no one person shall have their name on more than one Register. Therefore, there is nothing like a Specialists Register in the law. Whether a practitioner is a Fellow or a Medical Officer, his name appears once in the Medical Register as a Fully Registered practitioner. Thus, the additional qualifications are not registered by the MDCN Registrar but instead are included to the qualifications of an already registered practitioner.

2.2. The three Medical Registers provided by section 6(2) of the MADPA are registers of names, addresses and approved qualifications. Thus, the entries that shall be made in the Registers are entries of: names, addresses and approved qualifications.

2.3. The Act expressly stated at section 6(4)(d) that while alterations of the names, the addresses and approved qualifications would be made free of charge, any entry of name shall be charged a fee. In other words, only the entry of the name of a practitioner in the Medical Register can be done on payment of fees. Once the practitioner's name has been entered in the Medical Register, subsequent additions or alterations regarding names, addresses and additional qualifications particulars of the registered practitioner is not subject to any fees whatsoever!!!

2.4. The Act was even explicit when it made the inclusion of an additional qualification free of charge at the discretion of the practitioner and not on the authority of the MDCN. See section 8(2) of the MADPA. It must be noted that Rule 6(a)(iv) of the Code of Medical Ethics 2004 did not help at validating the MDCN's imposition of the arbitrary fees for the registration of additional qualifications for the Fellows in anyway whatsoever. Non-registration of Fellowship with MDCN carries no benefit or penalty in all the laws in Nigeria. In fact, the award of Fellowship is complete in itself without the need for validation or assurances of the MDCN, and the registration of the Fellowship with the MDCN affords the practitioners no extra advantage in any way whatsoever except as a Notice to the world.

3.0. The imposition of N38,000.00 as fee for registration of Fellowship qualification on unsuspecting innocent practitioners, and the imposition of N20,000.00 penalty in addition to the N38,000.00 registration fee (ie now N58,000.00 in grand total) for those that did not register their "additional qualifications" within 6 months of passing the Fellowship exam, has become a thing of utmost concern to all standard-loving Nigerians. It is not long ago that the Federal High Court of Nigeria sitting in Enugu state declared the practice of the officials of the MDCN extorting building levies from medical practitioners across Nigeria as illegal and ultra vires. 

3.1. Those practitioners who were extorted of the levy are already in court to get their money refunded. It is also not long ago that foreign medical graduates were compelled by the MDCN officials to pay N900,000.00 each for a botched compulsory pre-registration training. With this compulsory Fellowship registration at an unauthorized charge of N58,000.00 each, it has become urgent and imperative that the National Assembly of Nigeria and the Presidency examine the decision-making apparatuses and the source of legal advice of the MDCN as presently constituted to ascertain the motive behind the numerous illegal activities going on in that nobel medical body, and purge the body now before all the medical practitioners in Nigeria disappear from this country. The author of this article can no longer guarantee his continued stay to practice medicine under this oppressive and unlawful regulatory environment.

3.2. The harvest of unauthorized charges and fees from medical and dental practitioners across Nigeria in the name of NMA building levy, compulsory training and registration of additional qualifications, just to name a few, have no connection whatsoever to the statutory functions of the MDCN. 

3.3. The MDCN officials are not a law unto themselves. The magnitude of authorities exercisable by a statutory body have been exhaustively decided upon in the cases of Amasike v. Reg.-Gen., C.A.C. (2010) 13 Nwlr (Pt. 1211)337 S.C., Inec V. Musa (2003) 3 Nwlr (Pt.806)72 And A Host Of Other Authorities. See Also The Orations Of Aniagolu J.S.C In Dominic Onuorah Ifezue V Livinus Mbadugha & Anr (S.C. 68/1982)[1984] Ngsc 36 (18 May 1984) on the Canons of interpretation of statutes particularly the Medical and Dental Practitioners Act itself.

3.4. The MDCN receives 30% of N10,000.00 to N20,000.00 annual Practising Fees paid by each of over 80,000 Nigeria-certified doctors across the world. It is therefore obvious that the only motivating factor for the imposition of fees additional qualifications and additional penalty for registration after six months of passing exams, is nothing more than an insatiable pulchritudinous revenue quest.

3.5. The time is now come, for the refund of all the fees paid by medical and dental practitioners across Nigeria for the registration of Fellowship and additional qualifications to MDCN. All the practitioners that have so far made such payments are entitled to a quick refund. We need not approach the court for this. But where this simple task becomes neglected, the court remains the last hope of the common man. And this time around, spurning a request for peaceful refund shall yield to a punitive cost of an aggravated litigation.

Fredrick Ikenna Awkadigwe (MBBS NIG, LLB NIG, MWACS, FWACS, SC)

SUMMARY OF THE NMA BUILDING LEVY JUDGMENT AND THE WAY TO GO

The story, of how we were able to stop the Medical and Dental Council of Nigeria (MDCN) and the Nigerian Medical Association (NMA) from forcing all the medical doctors across the globe that graduated and were licensed in Nigeria, appears simple, but it was not all that simple. 

The Nigerian Medical Association is notorious amongst its members as the perfect example of an association with members who do not know that they are actually members of the association. The NMA is so detached from its members that the only time the vast majority of its members become aware of its existence is when the detached leaderships of the association impose despotic measures on the Nigerian doctors. 

The Constitution of the Federal Republic of Nigeria (CFRN) and the Companies and Allied Matters Act (CAMA) are the two major laws in Nigeria that determine how associations in Nigeria must be run. Regrettably, the NMA operated an association constitution that flouted the clear provisions of both the CFRN and CAMA to the extent that the NMA Constitution is just a piece of document only waiting for the National Industrial Court Of Nigeria to declare it void and throw it into the dustbin of history as a crappy despot. 

It is common knowledge that the NMA Constitution bars its members from participating in the association General Meeting. In fact, against the clear provisions of the law that associations must have and hold General Meetings, the NMA Constitution abolished General Meetings from its constitution. They insisted constituted a contraption called Delegates Meeting which membership is not up to one percent of the total membership of the association. The delegates were made up of state branch chairmen and secretaries who in turn pick their close friends in a most deplorable manner to represent all the doctors in Nigeria. These so-called delegates hold meetings for all the doctors in Nigeria, elect the National Officers of the NMA to the exclusion of the vast majority of doctors in Nigeria, decide the fate of all the doctors in Nigeria, make Association budget for all the doctors in Nigeria, receive all the information and keep to themselves, make rules for the association as they deem fit, amend the constitution of NMA for all the doctors in Nigeria, and also determine what is good for all the doctors in Nigeria. 

The problem is not just that the so-called delegates usurped the functions of the Congress of the NMA. The problem is that subscription and due paying members are forbidden to even witnessing or observe what they do at such secret meetings. They reel out perverse, unbelievable, impossible, obscene and outlandish impositions on the members coming out from such meetings. Members are seen as objects to be used for financial gain rather than subjects to be catered for in the national terrain. What is more! Any objection to their outlandish and perverse impositions are visited with blue murder, truncheon, bows and cutlasses. It was after one of such meetings in 2018 that the so-called delegates decided that all the Nigerian licensed doctors across the world shall be paying N20,000.00 - N40,000.00 as a Building Levy for six consecutive years. This payment was made a precondition for the payment of the statutory Practising Fees of the doctors. It is the law that a doctor cannot practice in the next year if he did not pay practising fee by 31st December of the preceding year. The imposition of this Building Levy on the Nigerian doctors sparked off vitriolic outcry from doctors across the country. I wrote to both NMA and MDCN to stop that imposition to no avail hence the first suit I instituted in February 2019 at the Federal High Court of Nigeria sitting in Enugu. Dr Steve Ahubelem opened a Telegram Group in respect of the suit to rally moral and financial support for the suit. He assembled over 1500 doctors in the group. Dr Steve in fact applied to be joined in the suit but NMA and MDCN muscled his application out. Dr Adeoye Adeleke was the Secretary of the group while I was the foot soldier. In the end, only 16 out of the over 1500 doctors in the group eventually supported the suit financially. 

The biggest blow to this struggle was, when in December 2019, while I was at the National Industrial Court prosecuting another important suit for the doctors, I was informed that the NMA Building Levy suit had been struck out from the Federal High Court. The NMA leadership went into frenzy to announce that I had lost the suit the Building Levy suit, and that all the doctors in Nigeria should go ahead to pay the compulsory building levy or face the consequences. The reason for striking out the suit was that I was defending all the doctors in Nigeria when no doctor asked me to defend them. Other reasons were that the case ought to be filed in Abuja and not in Enugu state. Yet other reason NMA and MDCN canvassed, though court rejected those ones, were that I did not take permission from NMA before going to court, as contained in NMA constitution and that I was the only voice against the building levy as all other doctors had completely paid the levy. 

I tried hard to convince the 16 supportive doctors that striking out of the suit did not mean that we lost the case. I tried to explain to them that I had the option of refiling and winning the case. Those 16 great doctors, especially Dr Steve and Adeleke, stood with and by me all the way. They just believed in me, notwithstanding that I was doing the case pro se while the Chamber of a Senior Advocate of Nigeria (SAN) was defending NMA. In my mind, I understood that my fortress were disappointed in the way things were going. The striking out also affected other suits that I was handling. Surprisingly, some of the 16 doctors went into another round of financial donation to keep the suit going. Six days after striking out the first suit FHC/EN/CS/2019 by the Federal High Court, I refiled the suit in the same court as FHC/EN/CS/170/2019. This time, I was faced with the possibility of being accused of abusing the processes of the court. Both NMA and MDCN kept hammering in court that Awkadigwe had abused court processes. They demanded for N2Million each against me. I looked at my bank account and discovered that I would lose all my life savings if court upheld that I abused court process. The options left for me was to withdraw the suit or face the possibility of losing all my little lifesavings. 

When a monetary award is granted against you in court, the other party can quickly ganish your account immediately to recover the judgment debt. Ganishee Order is not stopped with filing of Stay of Execution. The application for Stay of Execution only applies in situations like attachment of properties etc. Therefore, if you are faced with the possibility of monetary grant against you in court, the best thing to do is to make sure that you do not have liquid cash in the bank. And because I had some small liquid cash in my bank account, and knowing that we are in the era of BVN, I had to use the cash to buy a plot of land. That was how I was forced to go and buy a plot of land so that NMA and MDCN would not render me bankrupt on the judgment day. Such that even when NMA suspended me, and knowing that they were taking the laws into their own hands, I still did not file any applications for contempt against them, because the sting of striking out of my first suit made it look like NMA owned the court. Justice Buba proved them wrong. 

Now, it is no longer news that all those threats of rendering me bankrupt were empty threats. In fact, the court turned the table against the braggards and awarded cost in my favour against them, in addition to passing the judgment heavily against them. Sometimes, you chicken out of a race just close to the winning point. If not that I was interested more in mitigating possible bankruptcy rather than giving up, we would not have won this case. We must always find a way of moving on to our target than succumb to threats. It is true that these struggles come with price. I have already had a fair share in my centre but I ain't deterred one bit. This is because what we gain generally is bigger than what I lose individually. 

In summary, the Federal High Court has abolished the compulsory NMA Building Levy forthwith and forbidden MDCN forever to charge dues and levies for anybody whatsoever including NMA. The MDCN was ordered to remove the building levy from its portal immediately and forever. All the payments made through the general remita platform were mandated by court to be valid for licencing. The court also made it clear that no restrictions whatsoever should be placed on the payment of practicing fees forever. If you want to pay through the MDCN portal and you see any building levy restrictions there, just close the portal and pay through the general remita platform and keep your receipt well. Those that want to wait for MDCN to remove the building levy restrictions can wait, but do not wait beyond 31st December, as the court had already decided that payments made through the general remita during the pendency of the building levy restrictions on MDCN portal must be licensed by MDCN. So what are you waiting for. 

Finally, while we wait for MDCN to do the needful, we must not forget that impunity is rife in this country. And to defeat impunity, we must use different legal means at the same time. Therefore, any failure of MDCN to comply with the judgment after the one week notice already given them yesterday will be visited by immediate contempt proceedings for committal to prison of the officer in charge at the court, aggressive media war against medical impunity, and a peaceful match to Aso Rock, the National Assembly and MDCN office for the removal of whoever is in charge of MDCN. The medical profession cannot be seen to be part of this pervading Nigerian impunity and contempt of court especially when it affects the wills and aspirations of the vast majority of doctors in Nigeria. 

So, are you ready for that match!!! Are you ready to join in all other ongoing struggles to liberate the medical profession from the shackles of despotism and retrogression!!! Do not be left behind brothers and sisters. 

Awkadigwe Ikenna 

Plaintiff. 

HOW NMA LEADERSHIPS USED INVALID CONSTITUTION TO SWINDLE NIGERIAN DOCTORS

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) 

08039555380

THE ILLEGALITY OF PERMITTING 106 PARKLANE RESIDENTS TO VOTE; THE DOCTRINE OF ESTOPEL GROSSLY VIOLATED.

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

ESUT PARKLANE HOSPITAL RESIDENT VULTURES AND THE SIPPING METASTASIS OF MEDICAL IGNOMINY

Free money and greed for money: those are the genesis and revelation of the dance of shame witnessed yesterday in Enugu NMA AGM election. Remove the free money and you would have removed the developing shame in the medical profession. Keep the compulsory deductions from the source of salaries of doctors and make tomorrow's medical shame worse than yesterday's professional disaster. Problems are solved from the root cause, and not from the fruits. I shall quickly point out that the effort to ensure that the provisions of the NMA national Constitution that any voter in NMA state election pays his full association dues up to the date of the national AGC/DM are upheld has nothing to do with the eventual destination of the collected dues in the hands of the state executive body. The effort is purely to ensure that only paying members of the state NMA are allowed to dictate who leads Enugu NMA. 

Greed in medical associations has always been there from 1960. However, I personally witnessed proper greed in the profession in 2014 shortly after my appointment into residency training program of ESUT Teaching Hospital Parklane, Enugu state. It shocked me so much that I raised alarms equally so much, and called out for the impeachment of the instant culprits. Many resident doctors appeared to be sad about the thieving happenings but nobody appeared to be ready to act to stop them. 

The current crocodile tears shed by the same gang that had mocked the Enugu NMA stance full payment is only for the weak and the gullible. The issues are very simple. You have been stealing from NMA since 2018 when Dr Okwesili assumed office. He told you that you would not be accorded rights and privileges that go with payment of dues. You snubbed him and called his bluff. A year passed and you were busy stealing from an association he superintended. You tell those members of yours that were easily deceived that nothing would happen. You also regarded other due-paying members of the association as unwise. Notwithstanding all your tauntings of the Enugu NMA leadership, the chairman still backed down at the dying minute and asked you to submit a list of 106 members who were then deemed to have paid dues up to date. You ignored him for weeks only to present a day to the election with an unverified and unverifiable list and wish to shove it down the throat of the NMA Enugu state. You are now sparring with NMA Enugu state to know who is the boss. This is the type of elements found in Parklane residency. Rules are made for responsible people. Irresponsible people do anything to trivialize rules. This same mentality has not left a chunk of Parklane residents who have embraced the ignominy of past ARD leaderships of Parklane with eyes always and only on the money, particularly the 2014 Parklane ARD leadership. 

This was the gist of 2014 Parklane resident doctors association. The officials of the association had an unrestricted and uninhibited access to the salaries of resident doctors of Parklane Hospital directly at the Enugu state ministry of Finance. All they needed was to write the Enugu state Accountant General for deduction of such and such amount from the salaries of all the resident doctors in Parklane Hospital and they get it. That happened without any authorization from those doctors whose salaries were to be deducted. From September to November 2014, ten thousand naira was deducted from the salaries of all the doctors, even with all the protests spanning those three months. 

The compulsory deductions from the salaries of doctors went on until those officials deducted over N18Million from resident doctors' salaries for the period of their self-appointed two year tenure. At the last AGM of that regime in December 2014, the officials lied to the Congress that all they deducted was a total of N11Million and that they spent more than that amount, hence the association was owing them some hundreds of thousands of naira. 

The Parklane residents association set up an Audit Panel in 2015 to find out the truth in the rendered account of 2014 after discovering that the outgone officials did not, in fact, pay out the millions of naira they claimed that they had paid to NMA. 

I was appointed the chairman of that panel. It is remarkable that the Access bank officials denied my panel access to the full details of the association financial dealings as they worked in cahoots with the outgone officials. It took my firmness to break their resistance. And what was more! My panel discovered that the outgone officials used hidden account to divert association funds. We also discovered that the outgone officials deducted a whopping sum of N18Million during their tenure and spent less than N8Million, thereby embezzling N10.44Million. I have since then lived the consequences of this revealing job. 

Fast forward to 2019. After a series of protests and letters to the government of Enugu state to stop all deductions from the salaries of doctors and allow doctors to voluntarily pay their association dues, I discovered that their were more interests in the deductions from source than I had envisaged. All my letters fell on deaf ears until I issued government with a preaction notice to litigate the matter at the National Industrial Court of Nigeria. In a swift response to the suit, the Enugu NMA led by Dr Okwesili suspended me at the 2019 Enugu NMA AGM. The Parklane ARD had done the same months earlier after robbing and physically attacking my person. 

The former CMAC of Parklane Hospital, to whom I reported the robbery and physical attacks, and in whose presence the culprit admitted attacking and robbing me of my valuables, denied everything in the office of the Commissioner of Police when called. That was one of the reasons I am ever grateful to the government of Enugu state for removing her from that office. It only took the fatherly intervention of the CMD of the hospital, who took care of all my losses, to calm the situation down. 

Brethren, the blood we saw yesterday on Dr JOT's face and hand, at Toscana NMA imbroglio, was on my face and hand in 2019, perpetrated by the financial vultures in ESUT Parklane Hospital, because I instituted a suit to stop the free money. I warned that it could get worse and we were yet to see more. 

Association elections in ESUT Teaching Hospital is a war time whenever sincere men of virtue aspire to the leadership of that ARD. The type of character assassination that ignorant stooges of the vultures are detailed to spread could honestly make God cry. The association is riddled with shameless vultures who would do anything to remain relevant and suck their colleagues dry. These shameless men and women are mostly found in those fields of Medicine that are known not to be busy areas in the teaching hospitals. They take no calls and do no weekend duties. All that these persons do with their time is endless scheming for doctors' funds and machinations against perceived obstacles. They have no interest whatsoever in the welfare of doctors, but are quick to arrogate any welfare achievements of doctors to themselves. They are obligates.

ESUT Parklane resident vultures are gradually sipping and metastersizing. The metastasis is no longer limited to ESUT Parklane Hospital. It has spread to Enugu NMA where they intend to invade and obtain state protections for their further local financial impunities that were checked in these past two years. This locoregional metastasis will soon extend to distant organs at the national levels. This is not what any responsible doctor should desire and permit. Free money and greed for unchecked money: those are the genesis and revelation of the dance of shame witnessed yesterday in Enugu NMA AGM election. Remove the free and unaccounted-for moneies and you would have removed the shame painting the medical profession. Keep the compulsory deductions from salaries of doctors and make tomorrow worse than yesterday. Problems are solved from the rootcause, not from the leaves. 

It is only when payment of medical association dues are made clearly voluntary that this madness will end. People should pay association dues to a regime with visible plan and execution, and none to vagabonds and hooligans. As long as these habitual tillers know that there is free money with no competent provisions for account, the scramble for the money will continue and eventually reach a crescendo of loss of medical lives in no distant future. Not only that: medical leaderships will continue to be occupied by people with no interest in the welfare of doctors, but everything to line their private pockets. The current arrangement of vagaries shall keep churning out scums of the medical profession as our ambassadors and spill them into the national political space where they only paint the medical profession black with their warped reasoning; rather than grooming doctors with true Hippocratic blood running in their veins. That is the sad reality. 

Disclaimer!!!

This article, in no way, aims at endorsing the other unacceptable activities of the current NMA Chairman, Dr Okwesili, who knows exactly how to exercise powers that he does not constitutionally have, but does not know how to exercise the constitutional powers that he actually has. While I commend him for his successful efforts at bringing ESUT Parklane resident vultures to pay the dues of their members before their members are allowed to vote in NMA elections, I find it curious and disappointing that the said chairman could not organize a decent and peaceful election, hence the bloodshed. The refusal of the Parklane residents to send in the list of 100 members that were said to have been paying NMA dues was not enough to truncate the elections as there were better ways of conducting a peaceful election. We wait to see how the current Enugu NMA would deal with these medical misroads for bringing this shame and disrepute on our noble profession. 

Fred awkadigwe

TIME TO SCRAP NARD AND CONSOLIDATE ON NMA FOR ALL DOCTORS EQUALLY IN NIGERIA

NARD simply means the Nigerian Association of Resident Doctors. This association was formerly called National Association of Resident Doctors of Nigeria. This association purportedly looks after the welfare of all the resident doctors in Nigeria be they in federal or state hospitals.

Residency training of medical specialists is mostly undertaken in Teaching Hospitals across Nigeria. These Teaching Hospitals are either state government owned or federal government owned establishments. All the federal Teaching Hospitals are paid by one Master while the state Teaching Hospitals are paid by the 36 Masters.

The NARD thus purports to fight for the welfare of the resident doctors in both federal and state employ as one unbreakable Unit. This residency ombudsmanic myth of NARD has been exposed over the years as miasmic and maradonic in that the resident doctors in the state government owned hospitals are only used for strikes when the need of total shutdown arises for a momentous impact but dropped when the federal objectives of the strikes are achieved. The state residents are thereafter fed with untenable promises of NARD solidarity at state levels that would never come.

It is obvious that over the years, it has been noted that it would be very obtuse for resident doctors in Kano state whose governor has upgraded their own welfare concerns to embark on strike for the welfare of resident doctors in Bayelsa state whose governor has refused to upgrade their welfare packages. Even in the same state, it was viewed as highly obtuse for resident doctors in a federal Teaching Hospital in a particular state whom the President has already upgraded their welfare concerns, to embark on strike for the failure of a state governor of that State to respond positively to the welfare concerns of the resident doctors in the state owned Teaching Hospital. The whole obtuseness of the possible sympathy strikes become obtunded when a consideration is brought for a sympathy strike action per state per state.

The author of this article read with disillusioned heart, the strike notice put up by the NARD not long ago. As part of the demands of NARD was universal applicability of corrected CONMESS to state owned Teaching Hospitals. What quickly came to mind was the contrived audacity to continue with the strike assuming all the federal demands were met save the state concerns. That was a myth of ombudsmanic residency struggles. That was an unrealistic audacity. That was miasmic and maradonic. That ought not to be.

It is time to scrap NARD for this unrealistic audacities. In fact, NARD is the roadblock for the realization of universal applicability of corrected CONMESS for the state Teaching Hospitals. The staccato impulsiveness and realizations of the federal demands will keep placing the state resident doctors in servitude. There will never be a time for attention to be paid to the individual states in view of pay parity with the federal residents. Even amongst the federal hospitals, they still embark on individual strikes. Sympathy strike across Nigeria per state per state and per hospital is not the way to go.

The way to go is to strengthen the state branches of NMA. Each state should be able to shut down all the Teaching Hospitals in a state (both federal and state hospitals, public and private hospitals) to extract commitments from their governor. The Federal Teaching Hospitals can form an Association of Federal Teaching Hospitals AOFTHON to take care of their mutual interests. The use of state residents as fodder for federal residents interests should be drawn to a halt. The firebrand NARD members should relocate to their respective state branches of NMA and make the branches firebrand. If NMA at National and state levels cannot brace up for the challenges of a foremost profession in Nigeria and sort them out, we cannot continue to wait for NARD, MDCAN, NAGGNDP etc to solve our myriad of problems. It is only the medical profession that has chosen to operate multiplicity of ineffective groups that have run the profession down, to the extent that Medicine in Nigeria has lost all its prime position in Nigeria. Nigerian doctors should be able to speak with one solid voice and not in a cacophony of small voices to make the needed impact.

It has to be noted that the paradym of medical foot soldiers in NARD is a myth rather than factual. The National and State branches of NMA, when properly harnessed, and led by firebrand officers, are all that the Nigerian doctors need. Other groups like MDCAN, AOFTHON, AOSTHON etc will only act as advisory groups to NMA for NMA to swing into action, either as state branch or as a national syncythium.

Ikenna Fredrick Awkadigwe
awkadigweikenna@gmail.com
08039555380

INVITRO FERTILIZATION (IVF): THE ILLEGAL PARENTING PARAPHERNALIA THAT WILL SOON PUT MANY DOCTORS IN JAIL.

Invitro fertilization and embryo transfer (IVF-ET) is an artificial medical manipulation of human gametes (sperm cell and egg) to produce an embryo that would be implanted in the womb of a prospective mother for onward maturation into a full baby in an obviously recognised pregnancy. This baby is eventually born to the couple that procured the IVF-ET as its "natural child" while the couple becomes the "natural parents". The child is therefore presumed "to be born in lawful wedlock" of the couple.
The issue of birth in lawful wedlock of IVF-ET children become extremely risky in situations of "third party assisted conception". In this mode of birth, the reproductive process involves  another person providing sperm cell or egg or embryo, or another woman providing her womb as a carrier of transferred embryos, so that a barren couple can have a child. This is a situation where the gametes used for the IVF-ET were not from the procuring couple. In this case, the egg or the sperm cell used for the IVF-ET were obtained from third parties who are paid to donate the gametes. In this case, the child that would be born by the prospective mother would not bear any genetic resemblance to the mother or the husband.

This couple is only the presumed natural parents of the child only to the extent that the child was born by the couple within "lawful wedlock". This presumption of natural parenthood is highly rebbutable for the immutable genetic reasons. Moreover, the presumption of lawful wedlock in IVF-ET is in itself also rebuttable. Birth in lawful wedlock presupposes that a man copulates with the wife in their absolute privacy and come forth with a child. It is doubtful if the intrusion of an artificial medical manipulation in the natural coital works of a couple, especially with respect to the use of foreign gametes alien to the mother, could qualify as lawful wedlock as envisaged in the original meaning of that term.

It is trite that generally, the natural parents of a child are not just the presumed parents of the child as born within wedlock, but the biological parents whose genetics are embedded in the child. There are a retinue of Supreme Court decisions on this. With the rebbutable presumptions of natural parenthood of a child born within lawful wedlock, the natural father of an IVF-ET child could readily assert ownership of the child even after giving consent for his sperm cell to be used by the IVF-ET couple. He could litigate and assume custody of the child. The child can even seek for his natural parents when he grows up. The child can even litigate the IVF-ET couple and claim damages. This is because IVF-ET simpliciter does not sever parent-child relationship no matter the level of consent given by the donors of the gametes. Once it is his gene, it is his child.

In Nigeria, there is no law on IVF-ET at the moment. The National Health Act spoke about body fluids and tissues, but it is absolutely quiet with regard to IVF-ET and parental rights of an IVF-ET child. There is no law that provides that the IVF-ET couple, irrespective of the genetics of the child, are the natural or adoptive parents of the child. None. The IVF-ET couple who use donor gametes are therefore at great risks in Nigeria. They are not protected at all. They are at best, mere guardians of the child they carried for nine months. They are not even guardians ad litem. They are mere guardians. There is no amounts of consents by the IVF-ET couple and their donors that can transfer parenthood from the donors to the IVF-ET couple. The consenting procurators can transfer their personal rights to one another, but they cannot by a mere agreement amongst them, transfer the childhood rights of the child to one another without an enabling law. This is because the child may have his own interests when he grows up different from the interests of the IVF-ET couple and he has every legal right to assert his position. In addition, the relatives of the couple can validly deny the child of intestate inheritance rights in the property of the "guardian" couple.

The major problem that bedevils the IVF-ET couple is not as much with the recanting donors as it is with the possible erratic actions of the child who is the product of the IVF-ET. The donor could only seek for permanent custody of the child in the long run, thereby denying the IVF-ET couple of the product of their long suffering. This will be insignificant when compared to the havoc the IVF-ET child could wreak. An IVF-ET child could sue anybody and everybody, and subsequently align with his natural parents. The child could sue the doctor who performed the IVF for a lot of reasons which are too numerous to mention. The child could claim millions in damages. This becomes even more disastrous if the IVF hospital could not provide all the necessary information as to the identity of his natural parents. The child could also sue the IVF-ET couple for reasons best known to him. He could also sue his biological parents for other reasons.

In Nigeria, the only way provided in the law for the lawful and definite severance of parent-child relationship and ties is through statutory adoption. This is provided by the Adoption Act of Nigeria, Adoption laws of the different states, and the Child Rights Act as may have been domesticated by the states. Any state that operates both Adoption Law and Child Rights Law will have a better complement of laws than a state that operates only Adoption Laws as found in some parts of Northern Nigerian.The Child Rights Laws did a lot of improvements on the Adoption Laws in that any child could be adopted whether or not the child is an abandoned, once the child is neither married nor up to 18 years. The beauty of adoption is that it separates a child completely from his natural parents and hands him over to his adoptive parents as his new legal parents. After adoption, the child cannot inherit the property of his natural intestate parents. He is only entitled to the property of his intestate adoptive parents. The child cannot marry a child of his new parents as adoption creates consanguinity between the adopted child and the relatives of the new parents. In fact, adoption appears to enable the adopted child to marry his biological sister as all blood relationship of the adopted child appears to have been completely severed from his biological siblings and substituted with those of his adoptive siblings.

In conclusion, IVF-ET parents who used donor gametes are not the natural parents of their child. They are mere guardians waiting in perpetual trepidation for the donor or the child to revolt. The IVF-ET couple have no protection under the laws of Nigeria unless they employ the lifeline offered by the Child's Rights Laws by proceeding to adopt those children after delivery. This will ameliorate the risk on the third party offspring who may be legitimately denied access to the property of their intestate IVF parents by the siblings of the IVF couples. The medical practitioners who assist in the IVF-ET stand a major danger from the IVF-ET children in this era of medical litigations as those children can make so much money by suing them for a myriad of reasons ranging from forced parenting to identify issues. These identity litigations have already started in the developed countries. Those doctors who cannot pay the multiple and gargantuan damages may find themselves cooling off in jail. The solutions to this danger is simple. The merchants do not need to wait till the Supreme Court of Nigeria drops an unsavory Verdict before they wake up. A clause, just one clause, in the Child's Rights Law, will lay this danger to rest. It is a Clause of fourteen words. And the IVF-ET merchants could rest.

Ikenna Fredrick Awkadigwe
©2018
awkadigweikenna@gmail.com
08039555380

RESOLVING THE FACE-OFF BETWEEN DR PAUL JOHN AND DR KENENNA OBIATUEGWU

The latest in the debate over universal suffrage in the general elections of the central national body of the Nigerian Medical Association (NMA) appears to be the recent brawl between the Royal Healhpilot host Mr Paul John and the Abuja-based Urologist Mr Kenenna Obiatuegwu. Mr Obiatuegwu is in Court to obtain an Order of Court that would enable him vote in the NMA National Elections. He contends in effect that an insignificant 37 doctors only have hijacked the national elections of the NMA with a membership of over 80,000 doctors under the guise of delegates voting said to be contained in the NMA Constitution. Like most politically active NMA members including the author of this article and all the candidates for the office of President of NMA in the just concluded elections, Mr Obiatuegwu advocates for one doctor one vote in NMA General Elections.

Now, while that case was still pending in Court, the NMA has gone ahead to conduct the disputed elections without Obiatuegwu in the voting. Worse still to Obiatuegwu, the election was virtually conducted as against the physical voting process contained in the NMA Constitution. Obiatuegwu therefore ran back to Court to declare the election void for being virtual and for being hijacked by an insignificant few who select rather than elect NMA National Officers.

On the other hand, Mr Paul John walloped Mr Obiatuegwu for a number of reasons. Mr Paul seeks NMA punishment of Mr Obiatuegwu for going to Court in the first place without first arguing his case at the delegates meeting of the NMA and exhausting all the domestic processes of resolving pure association issues in NMA. Mr Paul contends that the so-called delegates meeting of the 37 few is valid given the fact that the best democracy of the whole world, the USA, uses delegates voting process. Mr Paul further contends that virtual Annual General Conference and Delegates Meeting and NMA elections are permitted under the Constitution of NMA in so far that the NMA Constitution did not prohibit the method.

Let me start with my discontent with Mr Paul's position. First, there is no association that can validly stop any of its members from seeking judicial remedy for a palpable grievance either by the threat of use of threat or the actual use of threat. This is even more true when the association in question conscripts all its membership by the operation of the law. The NMA is not a secret cult and as such cannot therefore run away from the operations of the provisions of the laws of Nigeria. In fact, without the provisions of the law making the membership of NMA compulsory, Mr Obiatuegwu and many other members of NMA would have left NMA long ago to form a better association. The compulsory nature of the membership of NMA presupposes that all the members must be afforded equal opportunities to participate directly in all the activities of the association ranging from universal suffrage to the participation at the general meetings of NMA. The NMA is therefore not at liberty to operate a skewed Constitution.

Second, it appears Mr Paul is not quite in tune with the clear provisions of the current NMA Constitution. The NMA Constitution prohibits all NMA members who are not amongst the few self-acclaimed Delegates from participating in the general meetings of the association where the amendment of the NMA Constitution is carried out and where the National Officers of NMA are elected. In other words, NMA elections and meetings are held in a coven by a group of doctors who call themselves delegates without any formal selection.

It is unfortunate that the advocates of delegates voting system do not even know the meaning of delegates voting. Neither the NMA National Constitution nor NMA State Branch Constitutions (Bylaws) provide the process of selection of delegates for the National Elections. In fact, none of the Constitutions provide for the primary elections that would determine the number of delegates and who the delegates should be. The State Branch Constitutions did not also empower the Branch Chairmen to be delegates in NMA elections. In fact, the State Branch Constitutions clearly stated the functions of the Branch Chairmen and none of those functions relate to voting at the National Elections. It therefore beats all imaginations how state Branch Chairmen have arrogated so much powers to themselves and assumed functions and powers not allocated to them by any rules in the NMA. What is more! These Branch Chairmen cast votes on behalf of all the Branch Members without a prior primary elections in the state to determine the wills and aspirations of the members as it relates to the candidates of their choice. The so-called Delegates Meetings Covens of the NMA simply turns out to be a meeting by self-acclaimed delegates with no mandate from the people they claim to represent either by meetings of the association, voting at a primary election or clear provisions of NMA Branch Constitutions. This secret meeting where Mr Obiatuegwu is clearly excluded and prohibited from participating is where Mr Paul asserts that Mr Obiatuegwu should bring his case to for amicable association resolution.

On Mr Paul's assertion that just because the NMA Constitution did not prohibit virtual voting, that it allowed same by necessary implication, I must react that Mr Paul misconstrued the law as currently practised in Nigeria, and every other part of the world. The position of the law is that anything not provided for is prohibited. It is also the law that those things expressly stated excludes those not stated. The legality of the virtual voting is not in the non-prohibition of it by the NMA Constitution. By virtue of the NMA Constitution, virtual or electronic elections are not allowed. However, the powers granted the Annual Delegates Meeting (ADM) eroded this illegality. The Constitution of NMA empowered the ADM to depart from the Constitution if supported by 2/3rds votes. Once this procedure is followed (unfortunately it appears that it was not followed) the ADM could validly resort to virtual electronic voting. This position of the author of this article is without prejudice to the legality of an ADM being organized in virtual mode before the issue of an election following suit comes up for discussion. The illegality of the just concluded elections is thus not on the virtual mode of the election but on the illegality of the self-acclaimed delegates who were not selected or endorsed by those they purport to represent at the Delegates Meeting. Neither the Rules of the State Branches nor their Congresses selected the self-acclaimed delegates for the purpose of that Elections, nor did the Delegates actually cast their votes at the Elections. The Returning Officer for the Election failed to follow the clear provisions of the Constitution of NMA and thus conducted a futile Election. Having said all these, I shall now conclude.

Mr Obiatuegwu sued NMA and his grouse is impeccable. The only problem with his suit is that it is smitten with lots of technical infirmities. The Court will definitely decide those technicalities issues ranging from the parties to the suit and the issue of preaction notice. It is true that his grouse appears to be purely association issues. Purely association issues are caught up in the web of the association Constitution which should be the real focus of any suit to strike the constitution and its bad operators down.

Fredrick Ikenna Awkadigwe
awkadigweikenna@gmail.com
08039555380