IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: THURSDAY 27TH FEBRUARY  2020

SUIT NO.NICN/EN/26/2019

 

 

BETWEEN:

 

DR. AWKADIGWE FREDRICK IKENNA…………..CLAIMANT

 

 

AND

 

  1. DR. OLUSEGUN OLAOPA

[FOR AND ON BEHALF OF HIMSELF AND 

THE NATIONAL ASSOCIATION OF

RESIDENT DOCTORS OF NIGERIA-NARD]

  1. DR. IKE OKWESILI                                  

[FOR AND ON BEHALF OF HIMSELF AND

NIGERIAN MEDICAL ASSOCIATION ENUGU      DEFENDANTS       

STATE BRANCH]

  1. DR. ANI OKECHUKWU 

[FOR AND ON BEHALF OF HIMSELF AND 

THE ASSOCIATION OF RESIDENT DOCTORS

ESUT TEACHING HOSPITAL PARLANE,

ENUGU STATE

 

 

APPEARANCES:

  1. DR. AWKADIGWE FREDRICK IKENNA – FOR HIMSELF.
  2. C.E. NWANKWO WITH THE BRIEF OF O. MAHMUDAT – FOR THE 1ST DEFENDANT.
  3. IFEANYI OKUMAH WITH CHIJIOKE OBUEZE – FOR THE 2ND DEFENDANT.
  4. I. MAXIMUS UGWUOKE – FOR THE 3RD DEFENDANT.

 

 

 

JUDGMENT

INTRODUCTION

Originating Summons commenced this suit on 10th June 2019. It sets down the following issues:

  1. Whether by virtue of the clear and unambiguous provisions of Sections 2 and 3 of the Trade Union (Amendment) Act Chapter T14 Laws of the Federation of Nigeria 2005, and Sections 3 and 4 of the Labour Act, the 1st, 2nd and 3rd Defendant Associations (namely the National Association of Resident Doctors of Nigeria, the Nigeria Medical Association Enugu state branch [sic], and the Association of Resident Doctors ESUT Teaching Hospital Parklane Enugu, respectively) are Registered and Recognised Trade Union organizations, that can enjoy the rare and special privilege of demanding and receiving membership dues of their members directly deducted from the salaries of their members as paid by the members.
  2. Whether by virtue of the clear and unambiguous provisions of Sections 2 and 3 of the Trade Union (Amendment) Act Chapter T14 Laws of the Federation of Nigeria 2005, and Sections 3 and 4 of the Labour Act, the 1st, 2nd and 3rd Defendants can lawfully demand and receive from the employer of the plaintiff [sic], the association dues and levies of their respective associations, directly from source of the salary of the Plaintiff who is a member of the associations, with or without the Plaintiff’s written approval to his employers to deduct the association dues from his salary.
  3. Whether by virtue of the clear and unambiguous provisions of section 14 (4) of the Medical and Dental Practitioners Act Cap. M8 LFN 2004 (as amended), and Sections 3 and 4 of the Labour Act, the 2nd and 3th [sic] Defendants can lawfully subject the plaintiff who is a medical practitioner in Nigeria, to the payment of membership monthly dues to the 3rd Defendant by demanding and receiving from the employer of the plaintiff, the association dues and levies of their respective associations, directly from the source of the salary of the Plaintiff who is a member of the associations, with or without the Plaintiff’s written approval to the employer to deduct the association dues from his salary, after having paid his Practising Fee for the year [sic]
  4. Whether by virtue of the clear and unambiguous provisions of sections 17 of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended), the 1st Defendant who is a dental resident, could lawfully take up the title of doctor, professionally, without falling short of being a medical impostor.
  5. Whether by virtue of the clear and unambiguous provisions of sections 17 of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended), and Article 4 of the Bylaw of the National Association of Resident Doctors of Nigeria, the 1st Defendant who is a resident dentist, is eligible for membership of the National Association of Resident Doctors of Nigeria which the 1st Defendant is currently the President.
  6. Whether by virtue of the clear and unambiguous provisions of section 17 of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended), and Article 4 of the Bylaw of the “National Association of Resident Doctors of Nigeria”, is not hereby a fatal misnomer with far-reaching passing-off consequences, if the 1st Defendant who is not a resident doctor is eligible for the membership.
  7. Whether by virtue of the unambiguous provisions of sections 40 and 45 of the Constitution of the Federal Republic of Nigeria as amended, and Article 9 of the Bylaw of the National Association of Resident Doctors of Nigeria has met the minimum standards of law to be said to be lawfully and constitutionally formed. 

 

 

Below are the reliefs claimed:

  1. A DECLARATION that by virtue of the clear and unambiguous provisions of sections 2 and 3 of the Trade Union (Amendment) Act Chapter T14 Laws of the Federation of Nigeria 2005, and Sections 3 and 4 of the Labour Act, the 1st, 2nd and 3rd Defendant Associations (namely the National Association of Resident Doctors of Nigeria, the Nigerian Medical Association Enugu state branch [sic], and the Association of Resident Doctors ESUT Teaching Hospital Parklane Enugu, respectively) are not Registered and Recognised Trade Union organizations, that can enjoy the rare and special statutory privilege of demanding and receiving membership dues of their members directly deducted from the salaries of their members as a paid by the members’ employers.
  2. A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 2 and 3 of the Trade Union (Amendment) Act Chapter T14 Laws of the Federation of Nigeria 2005, and Sections 3 and 4 of the Labour Act, the 1st, 2nd and 3rd Defendants cannot lawfully demand and receive from the employer of the plaintiff, the association dues and levies of their respective associations, directly from the source of the salary of the Plaintiff who is a member of the associations, with or without the Plaintiff’s written approval to his employers to deduct the association dues from his salary.
  3. A DECLARATION that by virtue of the clear and unambiguous provisions of section 14 (4) of the Medical and Dental Practitioners Act Cap. M8 LFN 2004 (as amended), and Sections 3 and 4 of the Labour Act, the 2nd and 3th [sic] Defendants cannot lawfully subject the plaintiff who is a medical practitioner in Nigeria, to the payment of membership monthly dues to the 3rd Defendant by demanding and receiving from the employer of the plaintiff, the association dues and levies of their respective associations, directly from the source of the salary of the Plaintiff who is a member of the associations, with or without the Plaintiff’s written approval to the employer to deduct the association dues from his salary, after having paid his Practising Fee for the year.
  4. A DECLARTATION that by virtue of the clear and unambiguous provisions of sections [sic] 17 of the Medical and Dental Practitioners Act Cap. M8 LFN 2004 (as amended), the 1st Defendant who is a dental resident, could not lawfully take up the title of a doctor, professionally, without falling short of being a medical imposter.
  5. A DECLARATION that by virtuethe clear and unambiguous provisions of sections 17 [sic] of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended), and Article 4 of the Bylaw of the National Association of Resident Doctors of Nigeria, the 1st Defendant who is a resident dentist, is not eligible for membership of the National Association of Resident Doctors of Nigeria which the 1st Defendant is currently the President.
  6. A DECLARATION that by virtue of the clear and unambiguous provisions of sections 17 [sic] of the Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended), and Article 4 of the Bylaw of the National Association of Resident Doctors of Nigeria, the “National Association of Resident Doctors of Nigeria”, is hereby a fatal misnomer with far-reaching passing-off consequences, if the 1st Defendant who is not a resident doctor is eligible for membership.
  7. A DECLARATION that by virtue of the clear and unambiguous provisions of sections 40 and 45 of the Constitution of the Federal Republic of Nigeria as amended, and Article 9 of the Bylaw of the National Association of Resident Doctors of Nigeria, the National Association of Resident Doctors of Nigeria has not met the minimum standards of the law to be lawfully and constitutionally formed. 
  8. AN ORDER OF PERPETUAL INJUNCTION restraining, forthwith, the 1st, 2nd and 3rd defendants and their respective associations from the use of their officers and instruments whatsoever and howsoever, henceforth, for demanding or recovery of any form of deductions of the membership dues or levies of their members directly from the salaries of those respective members from the employers of the members.
  9. AN ORDER directing the 1st Defendant who is not a medical or resident doctor to desist, forthwith, from the use of the title, doctor, in anyway and by any means whatsoever, until he shall have acquired the necessary doctoral or doctorate qualifications.
  10. AN ORDER directing the 1st Defendant association (the National Association of Resident Doctors of Nigeria) to purge itself of all the resident dentists, as well as directing all dental residents who are currently in the fold of the 1st Defendant association to publicly disclaim and relinquish, forthwith, their illegal membership of the 1st Defendant association.

 

PROCEEDINGS

The case came up first on 8th July 2019 and it was adjourned to 13th November 2019 for hearing. It came up this date but could not go on as adjourned because of issues connected with new processes filed. It was further adjourned to 2nd December 2019 for definite hearing of all applications with the substantive suit. On this date, it came up as adjourned.

DR. FREDRICK IKENNA AWKADIGWE who appeared for himself started first. He informed the Court that he filed the originating summons on 10th June 2019 and that; it was accompanied with an affidavit and written address. He also informed the Court that, he filed a further affidavit on 1st July 2019, with one exhibit, accompanied with Reply on Points of Law [RPL]. He also said on this very date, he equally filed a counter-affidavit to the 2nd defendant’s Notice of Preliminary Objection [NPO] while on 4th November 2019;he filed an RPL to the 3rd defendant’s written address against the originating summons.Likewise, he said he filed a plaintiff’s consequential additional reply to the 1st defendant’s application for amendment of his written address against the originating summons while on 19thNovember 2019 he filed a counter-affidavit of 15 paragraphs against the 3rd defendant’s NPO; and that, this was accompanied with a written address. He said finally,that, on the same day,he further filed further counter-affidavit in opposition to the NPO of the 3rd defendant.

DR. AWKADIGWE thereafter applied to change sections 3 and 4 of the Labour Act cited in the reliefs claimed to 2 and 5 and that, paragraph 4 of his written address even argued the correct provisions. This application was opposed by the defence and the Court held that, it was even unnecessary in the first instance, since a relief cannot be refused simply because it was brought under the wrong law and discountenanced the application. Thereafter, Dr. Awkadigwe continued and stated that he had identified the fifteen processes he filed and proceeded to adopt all of them.

After this, the learned C.E. NWANKWO of counsel to the 1st defendant took his turn. The learned counsel said, in response to the originating summons, the 1st defendant filed counter-affidavit on 28th June 2019 accompanied with exhibits and written address. The learned counsel informed the Court that,the 1st defendant, through motion on notice dated 22nd October 2019, sought to amend its written address and moved in terms; and consequently adoptedthe amended written address, were itgranted. The application was not opposed. After this, the learned NWANKWO objected to the consequential additional address filed by the claimant that, it was not supported by the rules of this Court. The learned NWANKWO adumbrated by submitting that, though, the 1st defendant is an unregistered association, but it has its constitution, which permits it to collect annual dues from its members and that, this was in consonance with the provisions of the 1999 Constitution on freedom of association; and that, since this practice has been in place since 1978, the collection of annual subscriptions from the members was not illegal. Counsel cited section 593 of the Companies and Allied Matters Act [CAMA].The learned counsel referred to paragraph 2.7 of the written address and submitted that, the claimant, having once been chairman of the association, is estopped from challenging the collection of check-off dues and also lacked the viresto challenge the use of the title Dr. by the 1st defendant. The learned counsel finally urged the Court to dismiss the suit.

Then, learned IFEANYI OKUMAH of counsel to the 2nd defendant took the stage. The learned counsel listed the processes of the 2nd defendant to include the counter-affidavit filed 24th June 2019 together with written address and the NPO of the same date, together with its affidavit and written address; and the further affidavit of 12th November 2019. Thereafter, the learned counsel attempted to raise objection pursuant to Order 17, Rule 1(9)-(11) of the NICN Rules and the Court drew his attention to Order 5, Rule 2(1) & (2) to the effect that, such objection must be raised timeously before taken further steps. The learned counsel,at that point,applied for adjournment to enable him file the objection properly on the ground that, he had not taken further step after becoming aware of the irregularity. The Court overruled the application. The learned counsel thereafter moved application to regularise the further affidavit filed out of time. At this point, the Court realised that, it had not ruled on the earlier application made by the learned counsel to the 1st defendant to amend the written address and granted the application unopposed and reserved ruling on the application by the learned counsel to the 2nd defendant to regularise the further affidavit filed out of time, to the judgment. Thereafter, the learned counsel to the 2nd defendant adopted the written addresses on both the NPO and the counter-affidavit and urged the Court to dismiss the suit.

Under adumbration, the learned counsel argued that, by paragraph 5 of Exhibit NMA3 of the 2nd defendant’s NPO, the claimant admitted that he did not pay dues to the 2nd defendant; and so, lacks the vires to bring action against it. The learned counsel also submitted that, there is substantial dispute of facts between the claimant and the 2nd defendant on his membership of the 2nd defendant. The learned counsel referred to NAOC v. Yanjim (Nig) Ltd (2015) AFWLR (Pt. 785) 42 on proper party.

Thereafter, learned I. MAXIMUS UGWUOKE for the 3rd defendant took the podium.The learned counsel said the 3rd defendant filed memo of appearance, counter-affidavit and the accompanying written address on 02/07/2019; and informed the Court that, these processes were filed out of time and that; a motion to regularise is before the Court. The application was granted unopposed. The learned counsel thereafter informed the Court that the 3rd defendant also filed an NPO on 13/11/2019 together with a written address. The learned counsel adopted the written addresses in support of the counter-affidavit and the NPO.Adumbrating, the learned counsel referred to paragraph 2.3 of the written address and urged the Court to take special notice of the letter of employment and also referred to section 7(2) of Medical Residency Training Act [MRTA] to the effect that,a resident must withdraw from residency, once he fails to abide the terms of the letter of appointment. The learned counsel also referred to paragraph 2.3.5 and said, the essence of his argument is contained in paragraph 2.1.4-2.1.6 wherein it was submitted that, the Labour Act is inapplicable to the defendants and that, it is only applicable to trade unions while only section 40 of the 1999 Constitution regulates the 3rd defendant. The learned counsel finally urged the Court to dismiss the suit with punitive cost.

That is all about the proceedings before the Court. The next duty in line is summary of the addresses filed by the parties. And there I go.

 

SUMMARY OF WRITTEN ADDRESSES OF THE PARTIES

A. Address of Counsel to the Claimant

Learned C.G. AWKADIGWE franked the written address of the claimant. The learned counsel adopted the issues formulated and earlier reproduced abovein.Arguing issues 1& 2, the learned counsel opined that the three defendants’ associations are not registered as trade unions, and as such, cannot receive check-off dues of members directly from their salaries and cited section 5 of the Labour Act.The learned counsel also cited sections 2 and 3 of the Trade Unions (Amendment) Act and sections 3 and 4 of the Labour Act,to the effect that, only registered trade unions could enjoy right of deduction of dues from the source. The learned counsel argued too, that,no prior consent of the members was obtained to deduct from the source. Thus, ended arguments on issues 1 and 2, and the learned counsel moved to issue 3.Under issue 3, the learned counsel argued that, the 2nd defendant is a branch of incorporated Nigerian Medical Association [NMA] statutorily enabled to collect dues by section 14 of the Medical and Dental Practitioners Act, Cap. M8, LFN 2004 and that, as such, the 2nd defendant is not a trade union capable of being funded directly by deductions from salaries of members. The learned counsel submitted that, it was therefore illegal for a mere branch to collect another round of dues after members had paid their annual dues. The learned counsel argued that, where a statute had provided for funding of an association, it cannot turn round to collect another dues without statutory approval and cited Olaniyan v. University of Lagos (1985) NWLR (Pt. 9) 599. The learned counsel thereafter urged the Court to hold that, the 2nd defendant lacks the vires to hold the members to another round of dues; and moved to issue 4.

Under issue 4, the learned counsel argued that, the 1st defendant, who is a dental resident, could not lawfully take up the title ‘doctor’ without becoming an impostor, contrary to section 17 of the Medical and Dental Practitioners Act, which defined a medical doctor. The learned counsel argued that, by these provisions, only medical practitioners and not dental surgeons could use the title doctor.Thereafter, the learned counsel moved to issue 5. And under issue 5, argued that, the name National Association of Resident Doctors of Nigeria signifies that, it is an association for only medical doctors, exclusive of dental surgeons. The learned counsel was of the view that,the meanings of medical and dental practitioners have been explained by section 17 of Medical and Dental Practitioners Act; and that, the prerequisite for residency is that, the applicant must either be a medical doctor or dentist/dental surgeon and cited Medical Residency Act 2017. The learned counsel submitted that, while both medical doctors and dentists could undertake residency training, only medical practitioners are entitled to be called ‘resident doctor’ while dentists in residency training are to be called ‘resident dentist’.The learned counsel summed up that, an association of resident doctors excludes resident dentists because,Article 4(1) of the Bylaw of the National Association of Resident Doctors of Nigeriastarted by saying membership was only for resident doctors.The learned counsel relied on section 18(2) of the Interpretation Act for this construction. Thus, ended the arguments and the learned counsel went to issue 6. 

Under issue 6, the learned counsel argued that, it was impersonative for the 1st defendant, a dental surgeon, to be a member of NARD and more so, its president. The learned counsel argued that, to obviate this misnomer, the name of the association must be changed from NARD to National Association of Resident Doctors and Dentists of Nigeria NARDD. Thereafter, the learned counsel moved to issue 7. Under issue 7, the learned counsel argued that, an association and its bylaw couldonly be legal, if in compliance with sections 40 and 45 of the Constitution; and that, the 2nd[sic] defendant and its bylaw are therefore unconstitutional. The learned counsel submitted that, by virtue of the Constitution, people enjoy freedom of association and that, the illegal method of coercing membership of the 2nd[sic] defendant and its mode of decision making make it an illegal association.The learned counsel now said it is illegal for the 1st [sic] defendantby its bylaw [Article 4 thereof] to compel resident doctors to be its members.

The learned counsel, citing Article 10, argued that, the 1st defendant’s policies conflict with the provisions of the Constitution in that, its members had no right to vote in its elections.The learned counsel submitted that, the collegiate voting method adopted for electing the leadership of the 1st defendant under Article 10, is contrary to section 40 of the Constitution and therefore illegal. The learned counsel submitted that, the collegiate system negates the basic reasons for formation of associations, which is to secure the interests of individual members,and that; these could only be achieved by direct participations of members in the election of its leaders and free participation of members in the meetings of the association. The learned counsel submitted that, an association is not therefore at liberty to enact any type of byelaw that would hand over power to a single member to be used arbitrarily. The learned counsel submitted that, the association bylaw, not being a subsidiary legislation, is not law, and cannot therefore abrogate the provisions of the Constitution. 

The learned counsel argued that, it was illegal for the association to hand over the powers of the members to a compulsory attorney, who is not responsible to the members and thereby permanently prevents the members from rightful participation in the affairs of the association. The learned counsel therefore urged the Court annul the 1stdefendant association and to hold that,its membership could not be made compulsory for all resident doctors by striking down Article 9 of the byelaw as being unconstitutional. Thus ended the written address of the claimant. I move to the written addresses of the defendants; and startwith the written addresses filed on the NPOs and later, the written addresses filed on the substantive suit.

 

B.Defendants’ Written Addresses

The 1st NPO is that which the 2nd defendant filed 24th June 2019 [p. 86-106]. The ground was that, the claimant lacked locus to institute this action.The affidavit in support deposed to the facts that, the claimant is not a member because; he had not paid dues to both the Nigerian Medical Association Enugu Branch and the Nigerian Medical Association within the legal periods. Learned IFEANYI OKUMAH franked the written address on the NPO. The learned counsel argued that, the NPO ousts the jurisdiction of the Court because of the absence of locus on the part of the claimant. The learned counsel cited Article 1V(x) of the Rules of the 2nd Defendant; and Article 4(2)(c) of the Constitution of the Nigerian Medical Association, to the effect that, the name of the claimant had been removed from the register of the NMA. The learned counsel argued that, the claimant did not plead or show that he paid his dues in all the processes filed to have locus and cited Registered Trustees of Airline Operators of Nigeria v. NAMA (2014) LPELR-22372 (SC) and UBA Plc v. Gostar Investment Co. Ltd (2018) LPELR-44886 (CA). The learned counsel also cited Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340 at 361 on effect of lack of locus. Thus, ended the address. I move to the NPO filed by the 3rd defendant.

The 3rd defendant’s NPO was filed on 13th November 2019 [p. 484-495]. The grounds were that, the suit was improperly constituted and, the proper parties were not before the Court. In arguing the NPO, the learned counsel was of the view that,it is the originating process that must be considered to determine jurisdiction. The learned counsel submitted that, actions against an unincorporated body must be through their accredited representatives and cited Fawehinmi v. NBA (2) S.C. 229/1986.The learned counsel argued that, section 5.1 (a) and 5.1.1 of the Bylaw of the 3rd defendant attached to the counter-affidavit of the 3rd defendant against the originating summons made the Executive Council of the 3rd defendant-association the person to be sued and that, the institution of action against the 1st and 3rddefendants is therefore wrong, as they are not the authorised representatives of the associations.

The learned counsel argued that, the 2nd defendant too, is an unincorporated association, being a branch of the NMA. The learned counsel argued that, the reliefs sought have grave impacts on the NMA, yet the claimant failed to sue the NMA. The learned counsel submitted that, the claimant’s stance that his action is not against NMA as a body but against its Enugu Branch, cannot be right in that, the President of NMA Enugu State alone does not constitute the authorised representatives of the association in isolation of the executive members of the branch. The learned counsel cited Green v. Green (1987) 3 NWLR (Pt. 60) to the effect that, failure to join the authorised representatives of the defendants is fatal to this action. Thus ended the addresson the 3rd defendant’s NPO.That ended addresses on the two NPOs. The 1st defendant did not file any NPO. I now turn to the written address of the defendants against the originating summons.

The 1st defendant’s written address against the substantive suit was filed 28th June 2019 [p. 118-131].I am not oblivious of the fact that the 1st defendant has another address, but this is the one I shall summarise for him. I shall give my reason anon. YUSUF O. MAHMUDAT (MS) franked it. The learned counsel submitted 3 issues, to wit:

  1. Does the 1st Defendant have a right to collect dues from its members and are such dues legally obtained?
  2. Are Dentists medical practitioners and are they eligible to use the title “Dr.” [sic]
  3. Is the 1st Defendant’s Association (NARD) properly constituted with the inclusion of Dentists as members?

 

Arguing issue 1, the learned counsel submitted that, the 1st defendant’s association [NARD] is a body of resident doctors undergoing residency and that; the association is voluntary. The learned counsel further submitted that, it is neither a trade union nor its various branches [ARD]. The learned counsel argued that, it is governed by the NARD Constitution, which provides for its alteration. The learned counsel referred to section 593 of the CAMA as providing for how it could be funded. The learned counsel submitted that, section 40 of the 1999 Constitution guarantees right to freedom of association. The learned counsel argued that, deduction of dues at source is with the consent of members and approved by the Hospital Management Boards. The learned counsel referred to Article 12.1 of the NARD Constitution; and argued that, this custom of deduction of subscription from source had been in place since 1978. The learned counsel argued that, once a resident doctor is employed for residency, one of the conditions of employment is to belong to a “medical defense or protection organization” as evidenced in paragraph 4 of Exhibit B of the 1st defendant’s counter-affidavit; and that, the only medical protection organisation for resident doctors in Nigeria, is NARD with branches as ARD. The learned counsel submitted that, it follows that, once the claimant accepted residency employment from the Enugu State University, he agreed to be a fee-paying member of the ARD, ESUT Branch and NARD. The learned counsel submitted that by this, the claimant could not renege after accepting employment as resident. The learned counsel thereafter moved to issue 2.

Under issue 2, on whether dentists are eligible to the use of ‘Dr.’. The learned counsel was of the view that, the medical profession includes surgeons, dentists, pediatricians, obstetricians and gynecologists who are all and collectively referred to as doctors and that, they were all inducted into the profession together and all took the Hippocratic Oath and conferred with the title ‘Dr.’. The learned counsel referred to Article 12 of the Code of Medical Ethics as showing parity of access to the title ‘Dr.’. The learned counsel submitted that, it should be noted that, only medical and dental practitioners are registered with the Medical and Dental Council and allowed to use the title ‘Dr.’. The learned counsel submitted that, to further buttress his point, the Medical and Dental Council of Nigeria, the regulatory body, issues licences to dental surgeons with the appellation ‘Dr.’. The learned counsel referred to the 1st defendant’s Annual Practising Licence, Exhibit C. The learned counsel said this parity is also recognised by the Scheme of Service in the public services of Nigeria and sections 2(2), 10 and 11 of the Medical Residency Training Act 2017.The learned counsel cited Oando Plc v. Federal Board of Inland Revenue (2016) 6 NWLR (Pt. 1509) 494 and Comptroller-General of Customs & 3 Ors v. Gusau (2017) 18 NWLR (Pt. 1598) on mischiefrule, to the effect that, a statute must not be interpreted to defeat its object and that the words of a statute must be given literal interpretation once they are unambiguous.

The learned counsel subsequently submitted that, the prayer that the 1st defendant be stopped from using the title ‘Dr.’ is academic because, it has no bearing and its determination would be an effort in futility and cited Odedo v. INEC (2007) ALL FWLR (Pt. 392) 1907 and Shettima & Anor v. Goni & 4 Ors (2012) ALL FWLR (Pt. 609, 1007. The learned counsel thereafter moved to issue 3.

On issue 3, which deals with improper constitution of the suit, the learned counsel argued that, arising from the previous submissions, it follows that NARD, an umbrella body for resident medical and dental practitioners, is properly constituted, and not a misnomer, as canvassed by the claimant. The learned counsel argued that, the claimant who has been a member of ARD ESUT since employment as resident trainee in ESUT and has held ARD offices of Secretary, Legal and Legislative Ad Hoc Committee for year 2017/18 and during, which period he was the custodian of the NARD Constitution, is only pretending ignorance of the NARD Constitution.Thus, the learned counsel ended the address. I move to the substantive address of the 2nd defendant against the originating summons.

Learned IFEANYI OKUMAH franked the 2nd defendant’s written address against the originating summons [p. 82-84]. The learned counsel argued that, the claimant is not a member of the 2nd defendant’s association because; he has not been paying his annual dues, and thus, lacks the vires to bring an action against it.The learned counsel relied on Articles III(a) and IV(x) of the Rules and Regulations of the 2nd defendant and Articles 4(1)(a) and 4(2)(c) of the Constitution of the NMA. The learned counsel argued that,the claimant failed to plead or adduce evidence of his membership of the 2nd defendant’s association. The learned counsel relied on Registered Trustees of Airline Operators of Nigeria v. NAMA (supra) and another case [supra]. The learned counsel submitted that, it is only a member of a professional association that can challenge the provisions of its constitution.The learned counsel pointed to paragraphs 6a, 7 and 13 of Exhibit 6 allegedly written by the claimant to the Executive Governor of Enugu State as proof of his non-membership of the 2nd defendant’s association.

The learned counsel submitted that, where the locus of a claimant is challenged, the onus lies on him to establish his locus; and that, as an association, it does not deduct money from the salaries of its members, they pay individually. The learned counsel argued that, Exhibits 3 and 6 showed that the claimant with others wrote the Executive Governor of Enugu State against deduction of their salaries and that Exhibits 4 and showed that, another petitioner wrote against the direct deduction of her salary and started paying personally. On the basis of the foregoing, the learned counsel urged the Court to either strike out or dismiss the suit. That ends the written address of the 2nd defendant against the originating summons. I move to that of the 3rd defendant.

IKE MAXIMUS UGWUOKE franked the 3rd defendant’s written address against the originating summons [p. 226-231]. The learned counsel’s arguments are essentially like that of the learned counsel to the 1st defendant; and for that reason, I shall only summarise the differences. The learned counsel argued that the claimant never resigned his membership of the 3rd defendant’s association and thus, remains a member till date and that, the claimant had exercised his right as a member five times by contesting for elections and failing and had benefited from the dues being deducted from the source. After the above arguments, the learned counsel formulated issues. The 1st issue was whether sections 5(1) of the Labour Act and 2 and 3 of the Trade Unions Act apply to the 3rd defendant.

Arguing the said issue 1, the learned counsel submittedthat the 3rd defendant is not a trade union and that sections 5(1)-(7) of the Labour Act referred to by the claimant, apply to trade unions, and the 3rd defendant, not being a trade union, is not bound by them, but by its Constitution on the platform of section 40 of the 1999 Constitution. The learned counsel submitted that, the said section 5(1)-(7) of the Labour Act even permits exceptions to general rules where another statute says non-trade union association could deduct dues of members from the source. The learned counsel cited Abegunde v. O.S.H.A. (2016) 6 WRN 1 SC to the effect that,plain words of statutes receive literal construction.The learned counsel submitted that, by virtue of this, the said provisions of the Labour Act are made subject to section 40 of the 1999 Constitution and the 3rd defendant’s Byelaw. The learned counsel submitted further that, the claimant having failed to canvass arguments on sections 2 and 3 of the Trade Unions Act and sections 3 and 4 of the Labour Act raised under issue 1 of his address has thus abandoned them. That ended arguments on issue 1 and the learned counsel moved to his issue 2.

Arguing issue 2, which is on whether it is lawful for the 3rd defendant to deduct dues from the source, the learned counsel submitted that, the claimant did not justify his arguments with any provisions of the Labour Act or Trade Unions Act. The learned counsel referred the Court to paragraph 8 of the 3rd defendant’s counter-affidavit as a complete answer to the arguments of counsel. The learned counsel submitted that,arising from the said paragraph, the consent of the claimant to deduction from the source is derived from his membership of the association; and that, the Constitution of the 3rd defendant’s association provides for deduction from the source at section 9.1(a). The learned counsel submitted that, this collective agreement is reflected in Exhibit AWKADIGWE 2 of the claimant’s affidavit. The learned counsel submitted that, the claimant is merely inciting the Court to interfere with the voluntary decision of the 3rd defendant’s association and cited Ogboro v. Reg. Trustees Lagos Polo Club (2016) 10 WRN 159. There ended arguments on issue 2 and the learned counsel moved to issue 3.

Arguing issue 3, on whether membership of the 3rd defendant’s association is by conscription, the learned counsel still referred the Court to paragraph 8 of its counter-affidavit. The learned counsel argued that, when benefits from dues collected at source were conferred on the claimant by virtue of his membership, he did not reject them or claim they were conferred by force. The learned counsel argued that,the claimant could not complain after acceding to the condition of service to belong to this union by accepting employment as resident. The learned counsel quoted the relevant portion of the letter of appointment and cited section 7(2)(c) of the Medical Residency Training Act 2018 in support of his arguments. The learned counsel submitted that,the claimant could only withdraw from the 3rd defendant’s association if he withdraws too, from the residency in line with section 7(2)(c) of the Residency Training Act. Thus ended the written address. It is the last in the addresses against the originating summons. I now move to summarise the responses of the claimant to the NPOs and written addresses of the defendants. 

 

B. Claimant’ Reponses to the NPOs and Defendants’ Written Addresses

C.G. AWKADIGWE franked the claimant’s response to the 2nd defendant’s NPO.On issue 1, which talks of incompetence of the NPO itself, the learned counsel argued that, because the written address in support of the NPO did not comply with the stipulations of Order 45, it is liable to be struck out. That was all about issue 1. The learned counsel moved to issue 2, which deals with competence of the claimant to bring this suit. The learned counsel argued that, the contention that the Court could not dabble into the internal issue of the three defendants’ associations is not correct in that, the deduction of the wages of the claimant direct from source cannot be the internal affairs of the defendants and their associations, since the salary is personal to him. The learned counsel submitted that,the claimant is only bound to pay the annual practising fee, to be a member of the 2nd defendant’s association. The learned counsel opined that, non-payment of branch fee is not fatal to membership of the 3rd defendant, as is clear from the Bylaws.

In a nutshell, the learned counsel submitted that, the claimant has locus to sue; and that, the defendants, who are not trade unions are legally incapacitated to deduct salaries from the source. The learned counsel moved to the third issue. Under issue 3, the learned counsel argued that, the mere fact that the claimant is not a member of the 2nd defendant’s association does not preclude him from suing the 2nd defendant in that, it shared from the direct deduction from his salaries through the 3rd defendant. The learned counsel submitted that, the suit could not be struck out were it that, the 2nd defendant was wrongly joined and cited Bello v. INEC & Anor (2010) LPELR-SC.330/2008. Thus ended the response of the claimant to the NPO. The next in line is the claimant’s response to the NPO of the 3rd defendant.

DR. AWKADIGWE FREDRICK IKENNAwrote the written address on behalf of himself against the NPO of the 3rd defendant [p. 544-552]. The claimant argued that, the suit could be constituted in representative capacity and cited Onowu v. Ogboko (2016) LPELR-40074 (CA) and Order 9, Rule 7 of the Rules of this Court. The claimant submitted that, the suit was properly constituted and hence, a member of an association could be lawfully sued on behalf of the association. The claimant cited Otapo v. Sunmonu (1978) 2 NWLR (Pt. 58) at 600; Anabaraonye v. Nwakihe (1997) 1 NWLR (Pt. 482) 374 and Re Tottenham (1896) 1 Ch. 628. The learned counsel also referred to Order 4, Rule 2 of the NICN Rules and urged the Court to hold that, the suit is properly constituted. The learned counsel argued that NPO must be filed at the time of filing memo of appearance and that, the party must also enter conditional appearance to give him the right to file NPO; and since this was not so,the NPO is incompetent. The claimant argued that, the NPO filed 5 months after entering unconditional appearance is incurably bad.

The learned counsel urged the Court to strike out the NPO with cost; and moved to the issue that unincorporated association must be sued through its executive. The claimant submitted that, since the 3rd defendant is an unincorporated body, it could not be sued through its executive, but through some selected members. The claimant cited Okonji & Ors v. Njokanna & Ors (1989) 4 NWLR (Pt. 114) 161 at 167, para. C; and Ighedo & Anor v. PHCN (2018) LPELR-43863 (SC). On the basis of the foregoing, the claimant urged the Court to hold that suing the defendant associations through their selected leaders was proper.

The claimant argued that, he had shown via Exhibit NMA 4 that the Nigerian Medical Association is not an incorporated trustee and that even if the 2nd defendant is a branch of incorporated NMA, the suit does not concern the purported incorporated NMA because, the branch, which committed this offence, had its own separate bylaw and independent structure. The claimant referred to paragraph 3 of the 2nd defendant’s counter-affidavit against the originating summons. The claimant submitted that, the argument that the NMA ought to have been joined is not correct in that, the joinder of the NMA is not necessary. The claimant cited Green v. Green (1987) 3 NWLR (Pt. 60) 480. The learned counsel argued that, even if the Court comes to the conclusion that the NMA ought to be joined, the proper thing to do is to order joinder of the NMA and not to strike out the case. The claimant argued that, this suit does not concern the NMA because, it does not deduct the salaries of the claimant from source and NMA was not vicariously liable, as the branch which committed the offence has its own constitution, independent leadership and executive structure. The claimant referred to paragraph 3 of the 2nd defendant’s counter-affidavit.

The claimant argued further that, joining the President of the NMA, NMA not being incorporated, in this suit, would even amount to misjoinder; more so, when the President has no hand whatsoever in what is going on. The claimant argued that, the NMA is not founded from monthly dues but entirely from annual subscriptions/practising fees paid voluntarily by medical and dental practitioners to the Medical and Dental Council of Nigeria [MDCN]. The claimant argued that the crux of this suit is that, after the 2nd defendant collects its share of from the MDCN, it still, along with the 3rd defendant, illegally deducts, direct from salaries,as additional revenues in flagrant contravention of the Medical and Dental Practitioners Act,which allocates 70% of the annual practising fee/subscription for funding of both the central and branch divisions of the NMA.The claimant urged the Court to strike out the NPO. Thus ended the addresses of the claimant against the NPOs.I now move to the claimant’s Replies on Point of Law [RPL] to the substantive addresses of the defendants against the originating summons.

The first to be treated is the RPL to the 1st defendant’s written address against the originating summons. The said RPL was filed 5th July 2019 [p. 256-267] Learned C.G. AWKADIGWE franked it.I shall here only treat what really belongs to RPL and not extraneous arguments. The learned counsel replied on the issue of whether or not dentists are medical practitioners by saying that, the fact that they are not is further proved by the fact that, both belong to separate professional associations – Nigerian Medical Association and Nigerian Dental Association and referred to section 1(2)(c) and 2(1)(f)(g) of the Medical and Dental Practitioners Act, which shows that, the two belong to different professions.The learned counsel referred to section 17(1), which makes it an offence to use the title Dr. in contravention of the law. The learned counsel argued that, the tradition and practice referred to, to justify the use of the title ‘Dr.’ by dental practitionerscouldn’t stand in the face of contrary provisions of the statute. 

The learned counsel argued that, the defendant could not substitute the claims of the claimant with counterclaim. I shall not bother to summarise the arguments raising objection against the competence of the counter-affidavit and written address of the 1st defendant because,the objection does not belong to reply on points of law but properly to preliminary objection that ought to have been raised before the adoption – see Order 5, Rule 2 of the NICN Rules. That ends the RPL against the written address of the 1st defendant against the originating summons. I move to the RPL against the 2nd defendant’s substantive address against the originating summons.

C.G. AWKADIGWE franked the claimant’s RPL to the 2nd defendant’s written address against the originating summons [p. 180-193].The arguments herein are essentially the same with the arguments canvassed in respect of the response of the claimant to the NPO of the 2nd defendant. It is therefore not necessary to summarise it. I therefore move to the RPL against the written address of the 3rd defendant on the substantive suit.

The RPL to the 3rd defendant’s substantive written address was filed 4th November 2019 [p. 305-319].C.G. AWKADIGWE franked the address. Like I said earlier on, I shall only treat proper reply on points of law and leave out re-argument. The learned counsel argued against the interpretation of the 3rd defendant that ‘any other law’ covers their bylaw, by saying this cannot be so, since only laws passed by lawful legislative bodies or authorised persons or bodies are laws. The learned counsel cited sections 318(1) of the 1999 Constitution and 37 of the Interpretation Act on what law and subsidiary instrument mean.The learned counsel cited Mbanefo v. Molokwu (2009) 11 NWLR (Pt. 1153) 431 to the effect that, courts would not enforce illegal or immoral provisions of the constitutions of voluntary associations. The learned counsel argued that, while the decision to deduct salaries of members from source might be internal affairs of the 3rd defendant, the carrying out of that decision via the very act of deduction from the source, is not internal affairs of the 3rd defendant, but external, since it impinged on another contract the claimant had with his employer.

The learned counsel argued that, there is no condition in his letter of employment [Exhibit AWKADIGWE 4] making it mandatory that he should be member of any medical association. The learned counsel argued that, it was therefore wrong for the 3rd defendant to use the appointment letter of the 1stdefendant [Exhibit B] as a yardstick for the determination of this suit. The learned counsel argued that, memberships of the three associations in issue are not voluntary as submitted by the defence, but by conscription. The learned counsel argued that, this fact is evident in their bylaws, which did not make provision for registration of members thus, signifying automatic memberships. The learned counsel argued further that, the fact of conscription is further proved by the fact that, the three associations have no register of members and evidence of members’ subscriptions. The learned counsel submitted that, this is contrary to the 1999 Constitution, which abhors conscription. Thus ended the reply on points of law.

The next thing is for me is to give my decisions. In doing this, let me state, as is the practice that, I have carefully read all the processes filed in this suit and digested their contents. I have equally taken cognisance that this is a case fought entirely on affidavits. For this reason, I have carefully made myself conscious of the rules for resolving conflicts in affidavits. I am aware that I did not reproduce the evidence adduced via these affidavits, but I am quite conversant with their contents; and my decisions shall evidence the familiarity. Let me state too, that, my decisions shall be divided into two segments: Section A shall deal with all preliminary issues and the NPOs while Section B shall deal with the substantive case. Off to my decisions I go.

 

COURT’S DECISIONS

Section A: All Preliminary Issues

The first issue I will deal with under this heading is the issue of plethora of applications and processes filed against rules.The first identified process amongst these is the application for amendment of the written address of the 1st defendant against the originating summons. This application was brought through a motion on notice dated 22nd October 2019 and filed the same day [p. 499-506]. This application had actually been granted unopposed on 2ndDecember 2019, when this matter came up for definite hearing. Ordinarily, I am functus officio to revisit the order granting it. But the doctrine of functus officio is not without some exceptions, one of which is, if a court was misled by misrepresentation or suppression of fact [deceit] or fraud to obtain an order or judgment, it could revisit and set it aside – see Ibrahim & Ors v. Gwandu (2013) LPELR-22838 (CA) 24-25, D-A. The Court undoubtedly has inherent power to set aside its judgment or order obtained by fraud or deceit – see Nwadiaro & Ors v. The President and Members of Customary Court Ossomala (2016) LPELR-40925 (CA) 39-40, F-B.

The ground of the application was that, the paragraphs of the original written address to be amended were not numbered; and this is repeated as a fact in paragraphs 4 and 5 of the affidavit in support. Being that the application was not opposed, after reading the ground of the motion and the affidavit, I granted it, believing the veracity of the depositions without comparing the contents of the amended process with the original. While writing the judgment and on a closer reading of the two addresses, I observed that the affidavit in support and the ground of the application suppressed facts that led to granting the application, in that, the amended address did more than was stated in the affidavit and ground of the application. I observed that, the issuesraised in the previous written address and the amended one are different. While the issues formulated in the first were 3, the ones formulated in the amended written address are two. Though, in substance, they are not materially different, but the fact remained that, the written address was amended further than was revealed to the Court. I also found that the paragraphs of the written addresses were different from each other and differently worded too – compare for example, paragraph 2 of each.

Arising from the foregoing, it does not matter that the other side, who filed consequential additional address actually did not oppose the application for leave, for obviously, both saw in it the opportunity to rewrite their addresses, what matters is that, anybody, especially counsel, being officers in the temple of justice, must not be encouraged to believe that deceit could be practised on a court of law to obtain favourable decision. For this reason, relying on the inherent powers of superior courts of record to set aside their orders or decisions obtained by deceit, I hereby set aside my order of 2nd December 2020 granting leave to the 2nd defendant to amend its written address. The written address so filed is hereby discountenanced together with the consequential additional address filed by the claimant, which is consequential to the amended address discountenanced. I hereby deem the original address as adopted in accordance with the rules of this Court.

Though, I hereby grant leave to the 2nd defendant to use the further affidavit filed12th November 2019 but,I hereby discountenance the further counter-affidavit of the claimant filed in further opposition to the NPO of the 3rd defendant on 19th November 2019. I do no see reason for thisfurther counter-affidavit. There must be an end to filing of affidavits. Issues had been properly joined without this additional counter-affidavit. It amounts to abuse of processwithout obtaining leave. It is unknown to the rules of this Court – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 25-27, A-C. I don’t see the need for countless number of affidavits in a suit, which both sides agreed is triable on affidavits. I say this because, none of the parties challenged the originating summons as being improper mode to commence the action; meaning that, they agreed the facts are not much in dispute, and which actually I found to be so. 

I must also make comment on the originating processes commencing this suit. I am surprised that the claimant who had the penchant of attacking the processes of the defence for failing to conform to the rules could not see that he was far more guilty of violation of these rules than the defendants he sets out to crucify on much less infringement of these rules. I will come to this anon. The very first rule of typewritten documents, including written addresses, which is so obvious that it does not need restating in the rules of courts, is that, the standard margins at both sides already set in computers [default-set] must not be tampered with. These margins at the sides of papers are there because, from experience, it is known that the papers, if of many pages, would have to be held together by certain means, or even bound into book form, which takes away parts of these margins, such that, it might be impossible to read parts of the writings if the standard margins are not maintained to take account of the means of fastening together the pages. 

This is why these margins at both sides of typewritten documents are default-set [preset] in all computers with the knowledge that, no reasonable person would tamper with them, except under extreme circumstances that would not affect the readability of the document involved. When any of these margins is altered, it is a clear deliberate act. This commonsensical rule, the claimant and his counsel violated with reckless abandon. I found that the claimant’s originating processes were typed against the required and default-setmargins at both sides thus, making it very difficult to read parts of the processes, especially the written address in support of the originating summons, and particularly at the top left margins, where holes were punched in the papers to hold them together in the file. With the difficulty in finding sufficient margins at the left side to punch holes for the rope to hold the processes together, parts of the writings [words] were punched away, while other parts could only be decipher with great difficulty. Such processes are ordinarily supposed to be discountenanced whenever the Court comes across thembecause;they tend to clog the adjudicatory process. 

I wonder whether it is paper that the counsel and the claimant were trying to maximize. I have seen this type of practice becoming rife of recent and would have visited it with punitive measures but had refrained because; it is often when I am writing the judgments that I come to notice this. I think there must be devised a way to discourage such miserly practices from counsel, which give a lot of headache to judges while writing judgments and ensue in utter waste of precious judicial time.

Be that as it may, I also wish to point out to the claimant that the objections raised against the competence of the processes of the defence on grounds of failure to comply with rules relating to writing addresses and that the NPOs were filed irregularly,having not been filed at the time of filing the memo,are too late in the day. In any case, any such complaint as the claimant sought to raise against the competence of the processes of the defence, is deemed waived, having not been raised at the appropriate time and in the appropriate manner – see Order 5, Rule 2 of the NICN Rules.That ends the extraneous preliminary issues. I move to the NPOs.

The two NPOs raised two issues:

  1. Whether the proper parties are before the Court; and
  2. Whether the claimant had locus standi.

 

I take the first one first. There are two prongs to the first issue. The first prong is that the suit is bad because the claimant failed to join the NMA, which is parent to the three other defendant associations. The second prong is that, the claimant failed to sue the accredited representatives of the defendant associations. In tackling the first prong, I have no difficulty in agreeing with the learned counsel to the 3rd defendant that, the suit is bad for failing to join the NMA. To buttress my position, I reproduce paragraphs 9 and 12 of the affidavit in support of the originating summons:

  1. “That the 2nd defendant association is the Enugu State Branch of the incorporated Nigerian Medical Association currently recognized by the Medical and Dental Council of Nigeria as the Nigeria Medical Association referred to in the Medical and Dental Practitioners Act Cap. M8 LFN 2004 (as amended), which receives 70% of the aggregate sum of the Practising Fees paid by medical practitioners to the Council annually for the operation of the Nigerian Medical Association.
  2.  ….
  3.  That upon payment of my annual medical Practising Fee, I become entitled to participate in the activities of the 2nd Defendant association as an ordinary member by conscription. I am also conscripted into the membership of the 1st and 3rd Defendant associations on appointment into residency training programme in ESUT Teaching Hospital Parklane Enugu in December 2013, on my enrolment into the salary platform of the Enugu State government, and on authorised deduction from my salary at source the association monthly dues for the 1st, 2nd and 3rd Defendant associations.”

 

Responding to the NPO of the 3rd defendant, the learned counsel to the claimant argued that, the 2nd defendant shared from direct deduction from source of his salaries through the 3rd defendant. This argument has its fulcrum in paragraph 11 of the counter-affidavit of the claimant against the NPO of the 2nd defendant. It is not in doubt that, the 1st defendant is parent body to the 3rd defendant. If the 2nd defendant’s association is in cohort with the 3rd defendant as alleged, and shared from the alleged illegal deductions from source by the 3rd defendant association, and the said 3rd defendant association is a mere branch of the 1st defendant association, while the 2nd defendant is a mere branch of the NMA, and the claimant had argued that, the NMA is the only body that could legally collect fees from him, it is logical that, the NMA, who is central to the two other alleged illegal affiliated associations and the branch of the NMA be joined, to hear its view on the issues at stake. I think the NMA is therefore, a necessary and proper party in this suit. 

My view herein seems to be supported by Article 6 of the Constitution of the NMA [Exhibit NMA 4 & 5 of the further affidavit of the 2nd Defendant filed 12/11/19]. It gives the right for establishment of State branches of the NMA and for such branches, though, bound by the NMA Constitution, to have separate constitutions of their own, provided such are not in conflict with that of the principal NMA Constitution. The same Article 6 also gives permission to form special affiliated groups, with right to have special byelaws, provided such is also not in conflict with the principal NMA Constitution. And the Article provides further that, such special groups within the fold of NMA could only be formed on the approval of the NMA. Article 19(e) of the NMA Constitution gives the affiliates and branches the right to levy additional fees.There is no dispute that the two other professional bodies: National Association of Resident Doctors of Nigeria [NARD] and Resident Doctors ESUT Teaching Hospital Park Lane, Enugu State are affiliates of the NMA. In fact, I believe the claimant ought to have actually petitioned the NMA first to look into these grievances. This much is provided under Article 8 of the NMA Constitution.

I do not know how the claimant could successfully argue that the NMA, which ostensibly approved the establishment of these affiliated bodies and branch could be bypassed in dealing with the affiliated bodies and branch. To me, each of the two affiliated associations: the 1st and 3rd defendant associations and the 2nd defendant branch of the NMA are part and parcel of the NMA or are the agents of the NMA. Where the principal is disclosed, you cannot leave the principal [NMA] and sue the agents [the defendants herein] on any of their acts ostensibly carried out within the scope of the authorities impliedly granted them by the NMA. In such situation, I think the NMA would be suable, both under contract and tort ofvicarious liability – Uwah & Anor v. Akpabio & Anor (2014) LPELR-22311 (SC) 20, B-D. Because, the claimant agreed that all the acts complained of were done pursuant to the constitutions and byelaws of the affiliated associations and branch. The argument that they are independent is not correct, as the NMA Constitution has shown that, it sanctioned the bylaws of these defendant associations and branch.

By permitting or approving the establishment of these affiliated associations and branch, these associations and the branch together become part and parcel of the NMA. In the same manner, by directly subjecting the constitutions of these affiliated bodies and branch to its own or its own being the yardstick of these inferior bylaws, just like the Constitution of the Federal Republic of Nigeria is the grundnorm to all other laws and theirfons et origo, the NMA Constitution becomes the origin and source of these inferior bylaws and the bylaws become part and parcel of the NMA Constitution. The scenario here is akin to the hand of Esau but the voice of Jacob. It is still the NMA masquerading or manifesting in all these forms. So, I hold that the NMA was both a necessary and proper party in this suit and that, the omission of the NMA in the suit is fatal to this action –Bakare & Ors v. Ajose-Adeogun & Ors (2014) LPELR-25024 (SC) B-DMalittafi v. Modomawa & Anor. (2016) LPELR-40775 (CA) 26-28, B-E; particularly Umeh & Anor v. Okwu & Ors (2014) LPELR-24063 (CA) 32, B-E:

“For a court to be competent and have jurisdiction over a matter proper parties must be identified…The question of proper parties is a very important issue which will affect the jurisdiction of the Court. Where proper parties are not before the Court, the Court lacks jurisdiction…Failure to join APGA as a party, the trial Court is deprived of the jurisdiction to determine the matter.”

 

I also hold that the suit is premature too, having failed to follow the internal dispute resolution mechanism of the NMA Constitution before rushing to Court. I say this, because, the claimant agreed he is a member of the NMA. He is bound by its Constitution. Failure to follow the prescribed procedure to resolve dispute regarding NMA is fatal to his case – see Mbanefo v. Molokwu & Ors (2008) LPELR-3696 (CA) 29, B-C and Olagboyega & Anor v. Anibere & Anor (2011) LPELR-4740 (CA) 15, B-C.Arising from the foregoing, I agree with the learned counsel to the defendants that, the suit is incompetent and liable to be struck out for failure to join a necessary and proper party, and too, immature, for failing to explore the administrative internal dispute resolution mechanism before rushing to Court.The argument that the proper order to make if the Court comes to the conclusion that the proper party was not before the Court is to order joinder and not strike out, is very incorrect because, it failed to take cognisance of the fact that, the case has been heard on the merit and reserved for judgment. This could only be right when NPO is heard in limine and ruling delivered in limine. Assuming my decision abovein is right, I strike out this case.

Nevertheless, assuming my decision abovein is not in tune with the superior wisdom of Court of Appeal, I shall proceed to examine the other issues in the matter for the sake of completeness to enable the Court of Appeal have my decisions on all issues thus, obviating the necessity of ordering retrial; and thus, saving precious judicial time – see Osatuyi v. Mudashiru (2013) LPELR-20358 (CA) 15-17, F. I therefore proceed to examine the second issue of the NPO, which is centred on lack of locus on the part of the claimant. The essential of the argument as canvassed by the learned counsel to the 2nd defendant is that, the claimant having failed to pay the requisite fees lacks the vires to sue; or that, having failed to sue the accredited representatives of the defendants, lacks the vires to sue.

I disagree with both views. If the issuesare conscription into the associations and illegal deductions from the salaries, as is the case here, definitely the claimant need not be a willing member to be entitled to sue to enforce and protect his proprietary right on his salary, right to dignity of his person not to be maltreatedand right to freedom of association granted him under sections 34(1)(a) & (b) and 40 of the 1999 Constitution. It would be preposterous and self-defeatist to say a person, who is challenging his conscription into an association and illegal deductions of his salaries from the source, must willingly pay the fees charged by that alleged illegal association before he can exercise his right sue to enforce or protect his alleged right to freedom of association and to his salary – see The Registered Trustees of Association of Tippers and Quarry Owners of Nigeria v. Yusuf & Ors (2011) LPELR-5024 (CA) 42-43, D-E. In any case, since membership and payment are conscripted, how does issue of non-payment arise?

It would appear to me that, it is only when the claimant is trying to enforce a right conferred on him as a member of the association or derived from the membership of the association that, issue of paying association fees to activate his right to sue becomes relevant. I also easily agree with the claimant that, where an association is voluntary and not incorporated, it is sufficient for the claimant to sue any prominent member of such association on behalf of himself and the association represented. In such instance, the claimant is not bound to follow the rules prescribed by that association as to who to sue, as the rules of such an unincorporated association cannot confer juristic personality – see Dairo & Ors v. The Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR-42573 (SC) 30-31, E-A.That ends all issues arising from the two NPOs. I now turn to the substantive suit, Section B.

 

Section B:Decision on the Substantive Suit

Under the substantive suit, I could only identify three issues:

  1. Whether any association could legally conscript memberships and deduct salaries of the conscripted members from the source?
  2. Whether the title of ‘Dr.’ is also available for dental surgeons or dental practitioners?
  3. Whether the claimant is entitled to the reliefs sought?

 

I take these issues one by one.Under issue 1, I found that the two aspects are intricately interwoven and must be treated together. The claimant has made considerable weather about being conscripted into the three defendant associations and that; his salaries are thereby illegally deducted from the source. In meeting these, the defendants, especially the 3rd defendant, said membership of the 3rd defendant is incidence of employment as a resident, citing section 7(2)(c) of the MRTA, to the effect that, the claimant could only withdraw his membership by resigning his employment; and that, consent to deduct from the source is incidental to the compulsory membership. The 3rd defendant also justified deductions from the source on the platform of section 9.1(a) of the Association of Resident Doctors [ARD] Constitution. The 2nd defendant, in her written address against the originating summons, impliedly admitted the deduction of extra dues direct from salaries of the claimant when she said that, a member had written against the direct deduction and thereafter started paying personally.The 1st defendant’s argument is not different when she argued that, it is compulsory condition precedent for employment into residency to join the 1st defendant association and the consequential deduction from source. I don’t think I need go further to inquire into this. What is admitted needs no further proof.It now remains to ascertain the position of law on these arguments and admissions.

In answer to the first question, I am of the view that, conscription into professional or scientific associations could be, where a statute either directly permits this or impliedly condonesit. This is what happened in the case of the NMA, which is impliedly recognised by section 14(4)(a) of the Medical and Dental Practitioners Act, by allotting to it, a whopping 70% of practising fees paid by medical and dental practitioners in Nigeria, just like the NBA is impliedly approved for legal practitioners in Nigeria by the Legal Practitioners Act.And I am of the view too, that, this legal recognition and conscription into membership by law extends mutatis mutandis to the branches of the NMA in all states of the federation because, a branch is part of the composite whole. But it looks dicey in relation to affiliates. 

The Black’s Law Dictionary (Ninth Ed.) defines ‘affiliate’ as “a corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation…” and ‘branch’ as “an offshoot, lateral extension, or division of an institution.”The International Webster’s Comprehensive Dictionary of the English Language (Deluxe Encyclopedic Ed. 2010) defines ‘affiliate’ as “to associate or unite, as a member or branch to a larger or principal body…to join or associate (oneself) with…” and ‘branch’ at note 4 as, “to spring off from the main part; come out from the trunk.” Taking a cue from the above sources, it would appear that, there is minor difference between a branch and an affiliate. The minor dichotomy seems to be that; a branch has the same umbilical chord with the main part while an affiliate has some sort of independent existence though, controlled by the main part. Both are nevertheless agents of the main part. 

To my mind, this scarce distinction is attended by grave legal consequences in certain instance in relation to this case. It is a principle of law that, specific mention of one thing in a statute discounts those not specifically mentioned – see Ebubedike v. FRN &Ors (2013) LPELR-22061 (CA) 26, C-E. Section 14(4)(a) Medical and Dental Practitioners Act specifically mentions the NMA. It did not mention the Association of Resident Doctors of Nigeria or its affiliate:  the Association of Resident Doctors ESUT Teaching Hospital Park Lane, Enugu State. It follows that these affiliates cannot enjoy the benefits of conscription of members enjoyed by the NMA and its branch: Nigerian Medical Association, Enugu State Branch. When section 14(1) of the Medical and Dental Practitioners Act makes it compulsory for all medical and dental practitioners to pay practice fees and went ahead under section 14(4)(a) to give a whopping 70% of these fees to the NMA, it inferentially conscripts all medical and dental practitioners to membership of the NMA. 

For you cannot sponsor the existence of an organisation and yet be denied right of membership. He who pays the piper dictates the tune. This is just like the NBA in Nigeria. Conscription of membership in this instance cannot be said to infringe section 40 of the Constitution in virtue of section 45(1) of the 1999 Constitution. Because, the NMA together with its branches, is a scientific or professional association established for the promotion of public health in accordance with section 45(1) of the 1999 Constitution. 

Arising from the fact that no specific provisions of the Medical and Dental Practitioners Act gives the NMA the right to compulsory deduction from the source, itself and its branches lack the powers of compulsory deductions of any dues from the salary sources of members – see International Standard Securities v. Union Bank of Nigeria PLc (2009) LPELR-8788 (CA) 23, B-C and Bashar v. Jokolo (2016) LPELR-40241 (CA) 26, D-E. The defendants in this case cannot therefore rely on section 7(2)(c) of Medical Residency Training Act to justify invasion of the employment rights of citizens by compulsorily deducting from sources of their salaries. While it is true that the Medical Residency Training Act says failure to abide the conditions and terms of employment as a resident terminates the appointment, this cannot by any means be interpreted as giving a right to invade the private and personal employment rights of citizens to deduct direct from their salaries, subscriptions or dues for any association. The said provision of the Medical Residency Training Act did not specifically say that compulsory deduction of dues and subscriptions direct from the source is one of the incidents of appointment as residents. 

A statute could only remove a vested right by direct and clear provisions and not amorphous provisions like section 7(2)(c) of the Medical Residency Training Act. To accede to such interpretation is to open a floodgate for employment rights of citizens, as residents, to be completely eroded. Right-infringing statutes are narrowly construed against the statute and in favour of the owner of the right to be taken away – seeFCDA V. Sule (1994) LPELR-1263 (SC) 30-31, E-F. This is more so, when the right to be infringed is the proprietary right of an employee to his salaries, which could only be speciously waived by unequivocal consent of the employee in writing otherwise, section 34(1)(a) & (b) of the 1999 Constitution is infringed, as such conscripted deductions of salaries would violate the dignity of the employee as a human being and thus,would amount to degrading treatment verging on servitude. Let me say clearly here that, efforts were just dissipated on the provisions of the Labour Act by the learned counsel to the parties and the self-prosecuting claimant in vain. 

The provisions of the Labour Act are completely inapplicable to the claimant herein by virtue of section 91(1) of the Labour Act [Interpretation section], which defines ‘worker’. By the definition of worker therein provided, a person who renders professional servicesas public officer is excluded. The claimant is a medical practitioner employed as a resident doctor and thus, renders professional services to the public as a public officer; and neither are the provisions of Trade Unions Act applicable too, except section 17(a) & (b), which forbids non-trade unions from direct deductions of fees from salaries because, the associations in question were not registered by the Registrar of Trade Unions norwere the fees being collected for their registration. May I state, that, like the voluntary associations which the associations in issue are, they must be contended with getting voluntary contributions from their members by creating interest or benefit arousing incentives or programmes to entice funds, which programmes/advantagescould only be accessed by members on payment of dues; or attach punishment of expulsion as member if subscriptions are not paid within a specified period. 

That is the civilized methods by which voluntary associations generate funds. If ever, deduction from source must be made, it must be with the written consent of the residents and not the approval of the Hospital Management Boards, who are not the owners of the salaries. It is unheard of that a Board, not being the owner of the salaries, would approve deductions from source from the salaries of employees. It is only registration as trade union that can confer this right on any union, or speciously very clear written consent of the employee, otherwise, a very dangerous precedent would be set, which could totally erode the rights of employees and emboldenthe supposed associations established for the protection of the interests of members not to be responsible because, either or not they perform, steady means of incomes by direct deductions at sources of the salaries of the residentsare assured! 

And any extracted conditions and terms at inception of employment are simply void ab initio. This should not be encouraged by any sane society nor endorsed by a court of law, particularly,a labour court. Such practice is in sharp contravention of the provisions of section 254C-(1)(f) of the 1999 Constitution [as altered], which abhors unfair labour practice. This Court has the sacred duty to prevent unfair labour practice. Finally, it is held that, while the NMA and its branches could conscript memberships, nevertheless the NMA together with its branches cannot conscript deductions from the source and the two other defendant affiliated associations could neither conscript membership nor conscript deductions from the source. In a nutshell, the decision partly favours the defendants and partly the claimant. That ends the second aspect of issue 1 and brings issue 1 to an end. I move to issue 2.

Issue 2 is on the alleged improper use of the title ‘Dr.’It seems to me that the issue does not deserve the attention paid to it. First, the grouse of the claimant is against the 1st defendant, whom he says, as a dental surgeon could not use the title ‘Dr.’ and as such, could not head the 1st defendant association. With the holding that the affiliated association, which the 1st defendant heads, cannot conscript membership nor subscriptions and dues, the claimant, who complains of conscription and illegal deduction, is at liberty to exit both the 1st defendant association and the 3rd defendant association, which are one and the same. If that is the case, he has no locus to complain on the improper use of the title or that the name of the association be corrected to reflect the amalgam of medical and dental practitioners, except he wants to turn himself into universal ombudsman for the protection of the interests of all medical practitioners over and above the NMA, whose duty it is to see to such things. If he still feels aggrieved he can report to the police to file indictment on impersonation. It is not a matter for this Court to dabble into.

It is only if he wants to remain a member of these associations that he can complain about improper person being admitted into membership and heading the association; and at that, I don’t find that his arguments are right. I cannot find that section 18(2) of the Interpretation Act has anything to do with the issue at hand. The Claimant also relied on Article 4.1.1(i) of the 1st defendant bylaw as excluding the 1st defendant from the use of the title ‘Dr.’ but subsequent provisions of the same Article4.1.1.at 4.1.1(ii) of the same bylaw cited at page 12 of the written address in support of the originating summons says “all medical and dental practitioners defined in (i) above [that is, the clauseclaimant relied on for the exclusion of the 1st defendant from the use of the title ‘Dr.’] who have fulfilled their obligations to the association.”[Interposition and underline for emphasis] 

By a combination of the principle that later provision of a statute prevails in case of conflict and that, specific overrides the general provision of a statute, it is very clear that dental practitioners are included in the list of those who are entitled to the use of the title ‘Dr.’ as prefix to their names – see Jombo United Company Limited v. Leadway Assurance Company Limited (2016) LPELR-40831 (SC) 18, A-Band Mdumere & Anor v. Okwara & Anor (2013) LPELR-20752 (SC) 9, A-E. I also wish to add that, a consideration of the purposes of Medical Residency Training Act and the Medical and Dental Practitioners Act show that, both medical practitioners and dental surgeons or practitioners are always treated at par. In fact, the tittles of the statutesare evidence of this. I observed that both Acts used the words ‘medical practitioner’ and ‘dental surgeon’ or medical profession and dental profession to indicate the dichotomy and never used the word ‘Dr.’, where they intend to make a distinction between the two. 

The reason for this could only be found in the fact that, the title ‘Dr.’ is generic to both. In fact, that is the sense in which the Black’s Law Dictionary [supra]simply defines the word ‘doctor’ as “physician”and, in which the International Webster’s Comprehensive Dictionary of the English Language [supra] defines ‘doctor’ as “a qualified practitioner of medicine or surgery in any of its branches.”[Underline supplied for emphasis] I think this removes any doubt from doubting Thomas. Provisions of a statute and documents must be given constructions that agree with reason and common sense –Egbebu v. IGP & Ors. (2016) LPELR-40224 (CA) 50-51, F-B. Thus, the defendants carry the day on issue 2 against the claimant.The 1st defendant and all dental residents are entitled to the use of the title ‘Dr.’ and are qualified to be members of the associations in questions. I now move to issue 3, which is, the reliefs to which the claimant is entitled, having won some of the questions for determination.

I take note that, I have earlier struck this suit out; and proceeded to examine the other issues thereafter for the sake of completeness, in case my decision striking out the suit is overturned. Were my decision striking out the suit overturned by the Court of Appeal, I go further to discuss the reliefs to which I think the claimant ought to be entitled. Since the defendants and their associations are not entitledto conscripted deductions of dues from the salaries of the claimant, he is entitled to reliefs: 1, 2, 3 and partly 8. Reliefs 1, 2 and 3 are not granted on the basis of the Labour Act because, as held earlier, the Labour Act is totally irrelevant to the claimant and the cause of action. They are granted on the basis of the principles of law enunciated earlier on in this judgment and section 16 of the Trade Unions Act. Relief 8 is granted only to the extent to which it relates to the claimant. The claimant did not sue in representative capacity, hence, cannot ask the Court to grant a relief that could only stem from representative actions.

I refuse reliefs 4, 5, 6, 7, 9, and 10 in their entireties. Relief 7 is not grantable because, it is an issue for the Registrar of Trade Unions or CAMA to decide. Reliefs 4, 5, 6, 9 and 10 are not grantable too, because, I have found that the 1st defendant, who is a dental resident, is entitled to the use of the title ‘Dr.’, likewise all dental residents; and thus,1st defendant is eminently qualified to hold the position he holds and to belong to the 1st defendant association while all the dental residents are equally entitled to belong to the 1st defendant association. Thus, reliefs 4, 5, 6, 7, 9, and 10are accordingly dismissed.

That is the judgment of the Court. I award no cost.

Judgment is accordingly entered.

 

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA