Posted on: Tue 22-03-2016

Before I delve into this National Industrial Court of Nigeria judgment in what appears to be a professional jurisdictional tussle between the doctors represented by Medical and Dental Council (MDCN) Act on one part,  and the laboratory scientists represented by Medical Laboratory Science Council of Nigeria (MLSCN) Act on the other part, I shall first set out the relevant sections of the two federal laws below and thereafter isolate the relevant subsections that I shall consider for your understanding of the fundamental errors in that judgment ; and thereafter appreciate the probable certainty of the decision being upturned on appeal.

The relevant sections are section 1 of MDCNA and section 4 of MLSCNA below set out:

Section 1. MDCN Act 1988: Establishment and functions of the Medical and Dental Council of Nigeria
(1) There is hereby established a body to be known as the Medical and Dental Council of Nigeria (hereafter in this Act referred to as *the Council) which shall be a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name.
(2) The Council shall have responsibility for :-
(a) determining the standards of knowledge and skill to be attained by persons seeking to become members of the medical or dental profession and reviewing those standards from time to time as circumstances may permit;
(b) Securing in accordance with the provisions of this Act, the establishment and maintenance of registers of persons entitled to practice as members of the medical or dental profession and the publication from time to time of lists of those persons;
(c) Reviewing and preparing from time to time, a statement as to the code of conduct which the Council considers desirable for the practice of the professions in Nigeria
(d) supervising and controlling the practice of homeopathy and other forms of alternative medicine;
(e) making regulations for the operation of clinical laboratory practical in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology, and
(f) performing the other functions conferred on the Council by this Act.

Section 4. MLSCN Act 2003:
4. The functions of the Board are to:-
the Board (a) determine from time to time, the standard of knowledge and skill to be attained by persons seeking to become Medical Laboratory Scientists, Medical Laboratory Technicians and Medical Laboratory Assistants (in this Act referred to as “Scientists”, “Technicians” and “Assistants” respectively);
(b) regulate the practice of Medical Laboratory Science in Nigeria;
(c) regulate the training of scientists, technicians and assistants in any institution in Nigeria and give periodic accreditation to institutions;
(d) provide and maintain separate register for scientists, technicians and assistants;
(e) regulate the production, importation, sales and stocking of diagnostic laboratory reagents and chemicals;
(f) assess, evaluate and register foreign graduates of Medical Laboratory Science;
(g) conduct examinations for technicians and assistants;
(h) inspect, regulate and accredit medical laboratories; and
(i) perform such other functions as may be conferred on it by this Act.

However, the crucial subsections are subsection (2) (e) MDCNA and subsections (b) (e) and (h) above.

Now, the decision of NICN was that there was a conflict between the two Acts. It went ahead to invoke the trite principle of law adumbrated in decided cases of our Supreme Court that later legislations shall impliedly amend or nullify earlier legislations to the extent of inconsistency occasioned by any conflicts between them.

The big question is : ARE THE TWO ACTS (MDCNA and MLSCNA ) IN CONFLICT BY VIRTUE OF THE PROVISIONS OF SECTION 1(2) (e) MDCNA AND THAT OF SECTION 4 (b) (e) & (h) MLSCNA ?
The answer to this question (which is respectifully submitted that the NICN did not appreciate before concluding to the contrary ) is in the negative.

Now, let me clear some clerical error in the MDCNA before I go further to show you that the two Acts are not in conflict whatsoever and therefore were enacted to remain side by side without mix.

Section 1(2) (e) declares that MDCN shall be making regulations for the operation of clinical laboratory PRACTICAL in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology

The corrected provision by all intents and purposes is as follows :

(2) (e) making regulations for the operation of clinical laboratory PRACTICE in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology

It is practice and not practical for the following reasons
1. The section describes regulation as to practice the subspecies of medicine in that subsection, and not the events happening INSIDE the clinical laboratories
2. There was no other federal law regulating laboratory practice in anyway so that legislature could not have delved into regulating practical without first providing for the regulation of practice
3. Practice includes practical and legislature could not have used practical that cannot stand without practice
4. It is only a person without an iota of processes in the working of a hospital and medical practice that would canvass that what is done in the expressly mentioned subspecialties of medicine and surgery in the subsection is practical
5. Subsection (2) (a) would have been redundant if subsection (2) (e) were meant to read as PRACTICAL as PRACTICAL can only come up when a full discussion on determining the standard is to be considered. At this stage, practical is still at a remote level of consideration.
6. The lexis and structure of the subsection does not admit of any meaning if the correct term were PRACTICAL as there is no phrase in medical practice known as REGULATIONS FOR THE OPERATION OF CLINICAL LABORATORY PRACTICAL . The reasons are not exhaustive.
7. It is instructive that MLSCNA which regulates practice of medical laboratory science that has the bulk of its activities as PRACTICAL did not mention PRACTICAL in the relevant section; how then could anybody contemplate that MDCNA of all legislation would be providing for PRACTICAL. The lexis of practical can only come up under the regulation made under the instrument of an enabling section in the various Acts.

Having come this far,  it is time to evaluate if there is conflict in the Acts.

The long titles of both enactments are necessarily instructive. The long title of MLSCNA declares : MEDICAL LABORATORY SCIENCE COUNCIL OF NIGERIA ACT:
AN ACT TO ESTABLISH THE MEDICAL LABORATORY SCIENCE COUNCIL OF NIGERIA, REPEAL THE INSTITUTE OF MEDICAL LABORATORY TECHNOLOGY, ACT CAP. I14 LAWS OF THE FEDERATION OF NIGERIA 2004, AND FOR RELATED MATTERS

While the long title of MDCNA declares :  MEDICAL AND DENTAL PRACTITIONERS ACT:
An Act to establish the Medical and Dental Council of Nigeria for the registration of medical practitioners and dental surgeons and to provide for a Disciplinary Tribunal for the discipline of members.

From the above, if MLSCNA was to herald innovation in laboratory practice and regulations the long title of the Act would have carried it as a banner. Therefore it is deductible that legislature did not intend that the later Act should do violence to the existing MDCNA.

Further, It must be noted that the MDCN ACT used the phrase REGULATIONS FOR THE OPERATION OF CLINICAL LABORATORY PRACTICE while MLSCN ACT  used the phrase REGULATE THE PRACTICE OF MEDICAL LABORATORY SCIENCE and REGULATE MEDICAL LABORATORIES. Here lies the DIFFERENCE!!!!

While I may not go into details as to the DIFFERENCE between CLINICAL LABORATORY PRACTICE and MEDICAL LABORATORY PRACTICE and SCIENCE,  suffice it to say that legislature and draftsmen of the Acts have meticulously considered the meaning and effects of these terms before employing them to describe the intended jurisdictions of the two Councils and Acts. While it may appear inelegant to those who may not comprehend the beauty and wisdom of legislature to permit MDCN to embark on the making of regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology; and at the same time permitting MLSCNA to inspect, regulate and accredit medical laboratories as well as regulate the practice of Medical Laboratory Science in Nigeria, yet,  it is still within the ambits of a proper legislation for duties and powers to be assigned to corporate bodies to effect changes in a necessarily related endeavors as critical as medical practice and laboratories. The latter provision of MLSCNA did not make the above part of the assigned powers and authority an exclusive preserve of MLSCN. THEREFORE, THE CORRECT PRINCIPLE OF LAW TO ADOPT IS : EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. That is to say that when one or more things of a class are expressly mentioned others of the same class are excluded. Thus , those areas expressly mentioned in MDCNA, viz : making regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology; shall be excluded from the powers and authority dispatched to MLSCN, notwithstanding that the later section 4 MLSCNA was not subjected to section 1 MDCNA because the two Acts are not in conflict and yet they are equal in hierarchy.

Awkadigwe F. I. (MBBS NIG,  LL:B NIG)

©Awkadigwe F. I.,  March 2016.

---

---