Dr Paul John, Member, Medinews committee ,NMA national quarterly magazine ( 2016-2018)
If filing of cases in the law-courts had helped anybody then legal gurus would not have thought of establishing a branch of law called Alternative Dispute Resolution (ADR). Today, we have abandoned and dilapidated buildings , and other properties nationwide for no other reason than the properties are subject of lawsuits still pending before the court for God-knows-how-long.
First question that flickers through my mind as I read Dr Obiatuegwu’s new lawsuit is , does he have the right to seek redress in court of competent jurisdiction if he feels aggrieved ? Yes, he has the right according to S.46 of the Constitution of the Federal Republic of Nigeria as amended, hereinafter referred to as CFRN.
The second question is : has Obiatuegwu explored all internal mechanisms in the association as stipulated in article 25 (8) of the NMA national constitution ,hereinafter referred to as NMAnc, and rule 40 of the Codes of Medical Ethics ,hereinafter referred to as COME? The answer ,of course, is no.
I put it to Dr Obiatuegwu that he has not exhaustively explored all internal resolution mechanisms in the association before approaching the law-court for redress .
ON DR KENENNA’S ARGUMENT ABOUT ONLINE VOTING
I need to make it very clear to Dr Obiatuegwu that article 11 of NMAnc, does not ruled out online voting and I need not remind him that in law,it is a known principle that what is not expressly prohibited is impliedly supported/approved .
Accordingly to Dr Kenenna’s new suit : he argued that the NMA’s constitution did not recognise any online electoral process as the proposal for online voting was quashed by the congress of the defendant at its 2017 Annual Delegate Meeting held in Calabar, Cross River State.
This is regrettable and avoidable as his lawyer never told him that the articles 10 and 11 of the NMAnc where he based his argument do not expressly state if the election of the NOC will be physical ,online or otherwise.
ON THE REQUEST THAT COURT SHOULD DECLARE THAT RECENTLY CONDUCTED NMA NATIONAL ADM WAS A GROSS MISCONDUCT AND DISREGARD FOR THE RULES OF COURT.
I challenge him to produce any court order that restrained the immediate past NOC from conducting the said ADM or that restrained the delegates from electing the new NOC . It may interest Dr Obiatuegwu to know that the law-court is not father christmas that gives any party what it does not ask for .
The said pending suit is for the court to determine ,among other things, if it is right or not for his so-called 99.5% NMA members to be disenfranchised at NMA national elections .
Even how he arbitrarily arrived at the so-called 99.5% being disenfranchised in NMA national elections remains a mystery best known to him. I also want Dr Kenenna to be aware of the following principles of law :
1: It is trite and a general principle of law that where there is no order of court restraining a party from taking any steps or performing any action, the taking of such steps or performance of such action cannot be restrained in retrospect.
2: In other words, no injunction shall lie to restrain a completed action. See the case of CBN vs INDUSTRIAL BANK LTD (1997) 9 NWLR (Part. 522) @ PAGE 712.
3: A court without hearing the parties to a case cannot make an order of interim injunction suo motu (on its own motion). See the case of UDE vs BASSEY (1991) 7 NWLR (Part.206) @ PAGE 771.
I want Dr Obiatuegwu to tell us how he had wanted the constitutional crisis that was looming and almost imminent in our national association few weeks ago to have been resolved by the immediate past NOC if not applying S45 of the CFRN ?
Does Dr Kenenna want the immediate past NOC to continue in power till his case is finally determined ( from High court through the appellate court to the Supreme court) or for doctors, who should lead by examples , to defy the Covid-19 necessitated social distancing and inter-state lock-down as contained in the executive orders by both the federal and state governments ,in order for doctors to congregate in Jos, Plateau state ( as initially planned before the Covid-19 pandemic) to physically elect their new NOC even when articles 7,8,9,10 and 11 of the NMAnc do not expressly prohibit online meeting,voting or online election of NOC members ?
I will start by paraphrasing one of the quotes of late Chukwudifu Oputa JSC : ‘’ Can we allow injustice( constitutional and leadership crises in our noble association ) due to technicality of the law’’. The same constitution in s.46 that gave Dr Kenenna right to file a suit at any High court nationwide ,if he is aggrieved also gave the immediate past NOC the right in s.45 of the same constitution to apply any law, policy, decision, action et cetera that is reasonably justifiable in a democratic state (in order to resolve the impending constitutional and leadership crises in the association ).
From the foregoing, it is clear that Dr Obiatuegwu has flouted article 25(8) of the NMAnc constitution and according to late Chukwudifu Oputa JSC during his interpretation of Ubi jus ibi remedium ,clearly stated that when there is law there is always a remedy and in this case ,NMA NEC may decide to apply article 25(8e, i-v) or article 25(8f) of the association and that is remedy for flouting article 25(8a-d) of the association.
I am not in any way commending or condemning election of NOC members by state delegates to the detriment of other NMA members nationwide, as that is still a subject of litigation pending before a court of competent jurisdiction which Dr Kenenna is the plaintiff ,what I am saying is that even in the United states of America ,which unarguably is one of the stable democracies globally, still practices electoral college in election of their national leaders .
For the benefit of doubt, in the electoral college system, each state gets a certain number of electors based on its total number of representatives in Congress. Each elector casts one electoral vote following the general election; there are a total of 538 electoral votes. The candidate that gets more than half (270) wins the election.
This is exactly what happens in NMA national election currently and if Dr Kenenna feels that the article of the NMAnc supporting election of NOC members is obnoxious, primitive ,reprehensible or needs modification of abrogation ,he should argue his points at the NMA congress and not through the law-court as this is purely an association matter .
Finally , I will like to advise Dr Obiatuegwu Kenenna that he should allow the newly elected NOC to settle down and work and not to involve them in unnecessary and avoidable legal suits that will take us no where as their two-year tenure is very short.
Divided we fall but united we stand.