‘Sack of resident doctors unconstitutional, null and void’

First of all, Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, has guaranteed the right of “every person” (in this case, including members of the Nigerian Medical Association, NMA) to “assemble freely and associate with other persons, and in particular” to “belong to any political party, trade union,” etc, […]

First of all, Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, has guaranteed the right of “every person” (in this case, including members of the Nigerian Medical Association, NMA) to “assemble freely and associate with other persons, and in particular” to “belong to any political party, trade union,” etc, “for the protection of his interests.”
The affected medical practitioners, therefore, committed no wrong when they, coming under the umbrella of the NMA, embarked on a strike action ‘for the protection of their interests.’
Secondly, the right to embark on a strike action is a common law right, recognised by Nigerian law. It was Lord Wright who stated in Crofter Harris Tweed & Co. vs. Veitch (1942) 1 All ER 142 at 158, that: “Where the rights of labour are concerned, the rights of the employers are conditioned by the rights of men to give or withhold their services. The right of the workman to strike is an essential element in the principle of collective bargaining. It is, in other words, an essential element not only of the union’s bargaining process itself, it is also a necessary sanction for enforcing agreed rules.”
And the Court of Appeal of Nigeria accepted that embarking on a strike action is acceptable in law, when it held in Union Bank of Nigeria Ltd. vs. Edet (1993) 4 NWLR (Pt. 287) 288, that when negotiations between an employer and his employees fail, resort could be had to a strike action by such employees, for the purpose of pressing home their demands.
Thirdly, even though the Trade Disputes (Essential Services) Act, Cap. T9, Laws of the Federation of Nigeria, 2004, penalises strike action by persons rendering essential services, including in this case, members of the NMA, this legislation has not imbued the President with any modicum of power to sack any person who has acted in breach of the act. Indeed, the Minister of Labour, upon being given notice of an intended strike action; or even as the strike action is ongoing, ought to have taken the following proactive steps stipulated in Section 5 of the Act, namely:
“Where any trade dispute exists or is apprehended and it appears to the minister that the dispute is one to which persons employed in any essential service are a party or might become a party, the minister may, whether or not a report in respect of the dispute has been received by him under Section 6 of the Trade Disputes Act, refer the dispute for settlement to the Industrial Arbitration Panel established under Section 9 of the Trade Disputes Act….”
Indeed, there is nowhere in the entire Trade Disputes (Essential Services) Act where the President of Nigeria or the office of the Secretary to the Government  of the Federation is mentioned! There is also nowhere in the entire Act where it is stipulated that when any person rendering essential service embarks on a strike action, he should be sacked from office!
Fourthly, all members of the NMA are resident doctors, whose employments are regulated and indeed protected by the provisions of the University Teaching Hospitals (Reconstitution of Boards, etc) Act, Cap. U15, Laws of the Federation of Nigeria, 2004. It is settled law that the employment of such persons cannot be terminated save by due process established under the act, the most essential of which is, as stipulated under Section 9 of the act.
This section is to the effect that the affected medical doctors be issued written queries and that complaints against them be tried by independent administrative committees. Even when such committees find them culpable, the only competent body to terminate the employment of members of the NMA are the respective Hospital Management Boards and not the Presidency. See Section 9 of the University Teaching Hospitals (Reconstitution of Boards, etc) Act, Cap. U15, Laws of the Federation of Nigeria, 2004 and the case of University of Nigeria Teaching Hospital Management Board vs. Nnoli (1994) 10 SCNJ 71.
Again, nowhere in this act is the President assigned the duty of terminating the employment of any medical doctor employed in any of the University Teaching Hospitals!
I make bold, therefore, to submit that the pronouncement by the Presidency sacking those medical doctors is unconstitutional, null and void. And the law is well settled that any act or action that is null and void is deemed not to have existed at all; hence should be ignored. NMA members can, therefore, ignore such purported mass sack; and if their salaries and emoluments are withheld or if they are denied ingress into and egress out of their respective hospitals, they can enforce those rights in court with 100% probability of success.

Hon (SAN), is a private legal practitioner and constitutional lawyer