IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO
DATED: 15TH JULY, 2019 SUIT NO: NICN/AK/39/2016
BETWEEN
- OLABODE ADEKUNLE AKANDE ….. CLAIMANT
AND
- DR. AHMED LIASU ADEAGBO
(Acting Medical Director, Federal Medical
Centre, Owo)
- HON. MINISTER OF HEALTH DEFENDANTS
- THE FEDERAL MINISTRY OF HEALTH
- THE ATTORNEY-GENERAL OF THE FEDERATION
REPRESENTATION:
DEACON OLUWAFEMI BALOGUN APPEARS FOR THE CLAIMANT
SAMUEL ADOKWE FOR THE 1ST, 2ND AND 3RD DEFENDANTS
JUDGMENT
The Claimant initiated this action on the 22nd of November, 2016 by way of complaint and statement of facts against three defendants, the claimant amended his originating processes twice, and the extant originating processes were filed after he sought leave to amend his originating processes and to join the Hon Minister of Health as a defendant in this suit, vide a motion dated 28th of April, 2018, leave was granted by the court on the 4th of June, 2018 wherefore he filed the amended processes on the 19th of June, 2018 claiming against the defendants as follows:
- A DECLARATION that the defendants’ letter of 7th November, 2016 titled “RE: OFFER OF APPOINTMENT AS A REGISTRAR IN ANAESTHESIA DEPARTMENT” which was addressed to and served on the Claimant purportedly terminating his appointment with the Federal Medical Centre, Owo is ultra vires, null and of no effect whatsoever.
- A DECLARATION that the Defendants are not entitled to summarily terminate the Claimant’s appointment with the Federal Medical Centre, Owo on the ground that he has not completed his residency programme as he was not admitted or appointed into the residency programme of the Centre in the first place.
- AN ORDER setting aside and nullifying the Defendants’ letter of 7th November, 2016 titled, RE: OFFER OF APPOINTMENT AS A REGISTRAR IN ANAESTHESIA DEPARTMENT” written to and served on the Claimant.
- A DECLARATION that the Claimant’s pensionable appointment with the Federal Medical Centre, Owo as a Registrar in Anaesthesia is still subsisting having not been terminated in accordance with the due process of law and the conditions of service guiding the said appointment.
- AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, privies, agents or any person or persons acting for or on their behalf from preventing the Claimant from carrying out his duties as an employee of the Federal Medical Centre, Owo or stopping the payment of his salaries or allowances accruable or derivable from his employment with the Federal Medical Centre, Owo.
- AN ORDER of this Honourable court mandating the Defendants to pay to the Claimant the following sums of money:
- a)Any sum of money paid to the Claimant’s colleagues during the pendency of this case apart from his normal monthly salary and any money already paid to him.
- b)Arrears of salary for the months of October and November, 2016 at the rate of N565,386.65 per month totalling N1,130,773.30k (One Million, One Hundred and Thirty Thousand, Seven Hundred and Seventy Three Naira and Thirty Kobo).
- c)Claimant’s monthly salary from the month of December, 2016 until judgment is delivered in this case.
- ALTERNATIVE CLAIM: The Claimant claims in the alternative as follows:
AN ORDER of this Honourable court mandating the Defendants to pay to
the Claimant the following sums of money:-
- a)Arrears of salary for the months of October and November, 2016 at the rate of N565, 386.65 per month totalling N1, 130,773.30k (One Million One Hundred and Thirty Thousand, Seven Hundred and Seventy Three Naira and Thirty Kobo).
- b)Claimant’s monthly salary for three months in lieu of notice at the rate of N565,386.65 per month totalling N1,696, 159.95k (One Million, Six Hundred and Ninety Six Thousand, One Hundred and Fifty Nine Naira and Ninety Five Kobo).
The claimant also filed the witness statement on oath, list of witness and documents to be relied upon and Reply to the Joint Statement of Defence of the 1st – 3rd defendants and the 4th defendant.
The claimant averred that he was employed by the Federal Medical Centre, Owo as a Senior Registrar I in the Department of Anaesthesia vide a letter dated 12th December, 2008, the conditions of service regulating the appointment of the claimant was said to be the same as applicable in Federal Teaching Specialist Hospitals in the country as well as any other conditions that may be specified by the Board and the Management from time to time. The Claimant’s appointment was confirmed by a letter dated 14th December, 2010, and same was terminated vide a letter dated 7th November, 2016, on the ground that he did not complete his training as a resident doctor.
The claimant alleged that as at the time of instituting this action, no other condition of service was specified by either the Board or Management of the Federal Medical Centre, Owo, in respect of his appointment. According to the claimant, he was neither employed as a resident doctor nor part of the Residency Training programme at the centre and therefore his appointment cannot be terminated without recourse to the Board of the Federal Medical Centre and the Public Service Rules.
WHEREOF he claims against the defendant as aforestated.
The 1st – 4th defendants filed their memorandum of Appearance, while the 1st -3rd defendants filed their extant joint statement of defence on 7th June, 2018, the 4th defendant filed a memorandum of appearance on the 20th March, 2017 the extant statement of defence and other processes were filed on 26th October, 2018. In their Amended Joint Statement of Defence, the 1st – 3rd defendants admitted paragraphs 1, 2, 3, 4, 6, 8, 13 and denied paragraphs 5, 7, 14, 15, 17 and 18 of the Statement of Facts.
The 1st – 3rd Defendants averred that the affairs of the centre can be conducted by the Chief Medical Director and other Management Staff of the Centre. The1st -3rd defendants pleaded that the claimant was appointed as a Registrar and Resident Doctor in training in line with the Guideline for Residency in training of the Centre and he was aware of the condition of the appointment and accepted same.
The 1st – 3rd defendants prayed the court to dismiss the claimant’s claims as same is baseless, hasty and unknown to law and with substantial cost for damages and wasting the time of the court.
The 4th defendant in his statement of defence dated and filed 26th October 2018, denied each and every allegation of facts contained in the claimant’s statement of facts as if each was set out and traversed seriatim, and stated that the claimant is a former employee of Federal Medical Centre, Owo and the complaint against him was that he did not meet up with the academic requirements of the centre.
The 4th defendant further stated that the claimant’s appointment with the Centre was at no time confirmed by the Federal Civil Service Commission to make his employment different from residency at the centre and failure to comply with the rules of Residency may lead to the termination of appointment.
The 4th defendant denied all the allegations of fact in the Claimant’s statement of facts and pleaded that he is not a necessary party to the suit. He relied on the witness of the 1st – 3rd defendant and prayed the court to dismiss the suit as being frivolous, lacking in merit and a calculated attempt to waste the time of the court.
The claimant filed a reply wherein he maintained that he is still in the full employment and was not employed for Residency at the centre, hence the termination of his appointment is irregular and unlawful and contrary to the Federal Public Service Rules.
Trial commenced in this suit on the 23rd October, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath, and further witness statement on oath. He tendered several documents which were admitted by the court and marked as Exhibits AA1 – AA7, and was cross examined by the Defence Counsel and thereafter closed his case.
On the 28th of January, 2019 the defendants opened their defence by calling a sole witness, one Mr Adedapo Samson Foluso as DW1, he adopted his witness statement on oath and tendered several documents which were admitted without objection by the court and marked as Exhibits OA1 – OA6. The witness was cross examined and the defence also closed its case on the 8th of April, 2019. The case was thereafter adjourned to 9th May, 2019 for the adoption of final written addresses. The 1s t– 3rd defendants and the claimant filed their final written addresses while the 4th defendant did not file any address.
Samuel Adokwe Esq. of counsel for the 1st – 3rd adopted the final written address dated and filed 28th March, 2019 on the 9th of May 2019. In his address, the counsel formulated a sole issue for determination to wit:
“Whether the claimant have proved his case that the termination of his appointment with the Federal Medical Centre Owo is illegal null, void and of no effect and therefore he is entitled to claims he is claiming against the Defendants.”
On this issue, counsel submitted that the termination of the appointment of the claimant was done in conformity with the laid down rules and regulation guiding a doctor who is employed into residency training.
The counsel submitted that the Claimant was employed as a Resident Doctor in training in Anaesthesia Department of the Federal Medical Centre vide a letter dated 12th December, 2008 and was placed on probation for an initial period of two years with a proviso that, if at any time it is established to the satisfaction of the head of department and the management that he is not qualified for efficient service or is unsuitable in other ways, his appointment may be terminated at any time by a month notice in writing or by payment of one month salary in lieu of notice without any other compensation, and thus counsel submitted that it is clear that his appointment was pending when he proves that he is capable of performing his duties, he stated that by this the claimant was not employed as a medical officer and was not a permanent employee of the Centre, learned counsel relied on the Guideline for Residency at the centre admitted as Exhibit OA5 and the claimant’s letter of appointment.
Counsel argued that it is clear from the evidence adduced that the claimant did not pass the Part II Fellowship Examination and he requested for the extension of his temporary appointment by six months to enable him sit for the examination, the request was initially not approved by the Management but he was eventually allowed to stay by the Management until when his appointment was terminated in November, 2016.
Defence counsel submitted that the evidence of DW1 reiterated the fact that the claimant was appointed as a Resident Doctor and not a Medical Officer, and he is therefore bound by the Guideline for Residency Training, and as a resident Doctor, he is expected to complete the Residency programme before the expiration of six (6) years, failure of which the Centre is at liberty to withdraw his appointment.
According to the counsel, DWI testified and tendered several documents which were admitted showing that the centre wrote the Claimant on the need to complete his residency to no avail, and cited the fact that several doctors in the employment of the centre have completed the programme and have become Consultants and left, while others after much consideration by the Management, were reabsorbed as Medical Officers at the centre.
Defence counsel submitted further that arrears or salaries for the months of October and November 2016 and other allowances being claimed by claimant were paid to the claimant during the pendency of this suit.
He therefore urged the Court to hold that the action of the 1st – 3rd Defendants in terminating the Claimant’s Appointment was done in accordance with the guideline and urged the Court to dismiss this suit with cost.
Oluwafemi C. Balogun Esq. of counsel for the claimant adopted his final written address dated 2nd April, 2019 and filed on the 4th April, 2019, at the hearing wherein he formulated three issues for determination to wit:
- Whether or not this suit is properly constituted or disclosed reasonable cause of action as to imbue this Honourable Court with the requisite jurisdiction to adjudicate upon same.
- Whether the Claimant was employed by the Federal Medical Centre, Owo as a trainee or a permanent Staff.
iii. Whether or not the Claimant’s employment with the Federal Medical Centre, Owo was lawfully terminated and if not, what are the remedies available to the Claimant?
Counsel pointed out that it is on record that the 1st and 2nd Defendants filed a Notice of Preliminary Objection contesting the constitution and competence of this suit. The claimant responded to same vide his counter affidavit and written address filed 13th July, 2017, and when it came up for hearing on the 20th of February, 2018, the Court ruled that the Objection should be taken with the substantive matter.
Learned counsel therefore adopted his arguments and submissions in the Written Address filed in response to the said preliminary objection and submitted that the objection has been overtaken by event, in that, the grant of the order for joinder and further amendment of the originating processes on the 4th day of June, 2018 rectified the process. He stated further that the objectors have abandoned the application in the light of the amendment granted in the case.
He urged the court to hold that the preliminary objection lacks merits and should therefore be dismissed.
On issue two, counsel cited Sections 131 to 133 of the Evidence Act, 2011 and submitted that in civil cases, a claimant/plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case and that the onus lies on the claimant to satisfy the court on the evidence adduced that he is entitled to the reliefs sought, Learned counsel stated that the Claimant in this case is to prove his case on a balance of probabilities and/or preponderance of evidence as it is done in all civil cases and not beyond reasonable doubt. He cited the following cases: F. A. AYANWALE v. O. ODUSANMI (2012) 204 LRCN 198 at 211-212; ALHAJI A. ISHOLA v. U. B. N.LTD (2005) 127 LRCN 1204 at 1225 -1226 and several other cases
Learned Counsel submitted that in an action for unlawful termination of appointment the claimant has the onus (1) to place before the court the terms of the contract of employment and (2) to prove in what manner the said terms were breached by the employer. In addition, he submitted that while an employer is not bound to give reasons for terminating the appointment of his employee, where he gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the court. He stated that in proof of his case, the Claimant herein pleaded Exhibit AA1, he argued that by Exhibit AA1, the Claimant was employed by the Defendants as a Senior Registrar (Anaesthesia) on PROBATION for TWO (2) YEARS. It is to be noted that the terms of his service provided in paragraph 4 of Exhibit AA1 is that his appointment can only be terminated WITHIN THE PROBATIONARY PERIOD by giving a month notice in writing/one month salary in lieu of notice if it is established to the satisfaction of his Head of Department and the Management that he is not qualified for efficient services or unsuitable in other ways. He posited that the confirmation of his appointment testified to his suitability as specified.
The claimant’s counsel pointed out that by virtue of paragraph 3 of Exhibit AA1, the provisions of the University Teaching Hospitals (Reconstitution of Boards, Etc) Act, Cap.U15, LFN 2004 was incorporated into the conditions and terms of service of the Claimant by reference. He cited CHIEF T. IDONIBOYE-OBU v. NNPC (supra); ADEGBITE v. COLLEGE OF MEDICINE OF UNIVERSITY OF LAGOS (1973) 5 SC 149 at 162 and INTERNATIONAL DRILLING COMPANY (NIG.) LTD v. AJIJALA (1976) 2 SC 115 at 127.
The claimant’s counsel submitted that the rules and regulation guiding the removal and discipline of a clinical, administrative and technical staff of Federal Teaching Hospitals in Nigeria is contained in the University Teaching Hospital Act and reiterated that before the Claimant can be lawfully relieved of his appointment, the provisions of the Act regarding the removal and discipline of clinical staff as contained in Section 9 must be followed.
Counsel maintained that the Claimant’s contract of employment is statutory, he cited C. B. N. & ANOR v. IGWILLO (supra), and submitted that an employment is said to be statutorily flavoured when it is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee.
Counsel contended that the Defendants have woefully failed to proof that the claimant’s appointment was terminated because he failed to complete his training as a Resident Doctor within the six (6) years stipulated and submitted that the claimant was never employed as a Resident Doctor by the Centre but was employed to render service as an Anaesthetist. It is also the case of the claimant that as at the time of his employment in year 2008 and up till now, there was no residency training in the Anaesthesia Department of the Federal Medical Centre, Owo, and that Residency training at the centre started in the year 2009, he argued that these facts were never contradicted by the Defendants.
On Exhibit OA1, OA2 and OA3 tendered by defendants in proof of the assertion that the claimant was a Resident doctor, counsel submitted that a mere letter cannot, in law, be taken as a variation or interpretation of the conditions and terms of the contract of employment made in Exhibit AA1.
The Counsel in his submission pointed out that under the Federal Civil Service Rules, an officer employed as a temporary staff may be confirmed after two years or more of probation. After confirmation, he becomes a permanent staff with a pensionable appointment and cited BASHIR ALADE SHITTA-BAY v. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S. C. 26 at pages 35-36.
Counsel further submitted that the Claimant later realized that the contents of Exhibit OA2 was in contradiction of the existing state of facts, and this made him to write Exhibit AA6 (and not AO3 as wrongly referred to by counsel) in which he was deemed to have repudiated the contents of Exhibit OA2. Finally, on Exhibit OA5, counsel noted that the document came into existence in the year 2016 whereas the Claimant was employed in year 2008. He added, that thus, it is evident that the content is not applicable to the claimant’s employment.
In addition, the counsel submitted that the Defendants have failed to prove that the Claimant is employed to undergo training under the Residency Training Programme of the Centre, the only conclusion to be drawn is that the claimant as a professional medical practitioner, can only be a clinical staff at the Centre.
Consequent upon the above, the counsel urged the court to resolve this issue in favour of the Claimant.
On issue three, counsel submitted that where there is a departure from the prescribed procedure in a statutory employment, the dismissal is deemed unlawful. The counsel relied on the University Teaching Hospitals (Reconstitution of Boards, Ect.) Act, and particularly Section 9 (1) which provides for the removal and discipline of clinical, administrative and technical staff as applicable to the claimant.
The claimant’s counsel argued that the power to remove, dismiss or terminate the appointment of a clinical staff, such as the Claimant under the Act resides in the Board of Management and not the office of the Medical Director or Acting Medical Director, for that matter. More so, there was no Board of Management in place as at the time of the purported termination of the Claimant’s appointment that could have delegated such powers to the 1st Defendant.
He added that assuming that the Acting Medical Director can be equated with Chief Medical Director in the Act, the only power that enures to that office under the Act is the suspension of an erring staff, citing Section 9 (2) of the Act.
Learned counsel argued that the termination of the Claimant’s employment is unlawful and hence null and void, thus his employment is still valid and subsisting. Thereby, he is entitled to reinstatement to his position as an employee of the Centre with all his entitlements paid.
As an alternative to the above, counsel submitted that if this court finds against the claimant’s reinstatement, he urged the Court to grant the alternative reliefs as contained in leg seven (7) of the Claim.
He finally urged the court to resolve all the issues raised for determination in his Address in favour of the Claimant.
Having read the processes filed by both parties in this suit, listened to the testimony of the witnesses and read the submissions of counsel in their final address, I have come up with the following issues that will best determine this case to wit;
- Whether or not the termination of the appointment of the claimant is unlawful or wrongful?
- Whether or not the claimant is entitled to his claims.
Before delving into the substantive, it will be recalled that counsel to the 1st and 2nd Defendant filed preliminary objection dated the 5th day of July, 2017, wherein counsel contended that this court lacks jurisdiction to entertain this suit because the claimant neglected/failed to sue the proper parties. The application was ordered to be heard with the substantive suit. The Claimant in the course of the hearing later filed an application for joinder of the Minister of Health as a Defendant in this suit and to further amend both his Amended Complaint and Amended Statement of facts, this was granted by this court without objection by the counsel to the 1st – 3rd defendants on the 4th of June, 2018.
Notwithstanding this however and considering the submissions of counsel in the application, I find that the suit is properly constituted, the claimant having joined the Attorney General of the Federation in this suit who is the chief law officer of the federation, this makes the action competent as it is against a public institution established by the Federal Government, more so the joinder of the Minister of Health without objection by the defendants further confirmed that proper parties are before the court in this suit. Thus the objection of the defendants in this regard lacks merit and is accordingly dismissed. I so hold.
On issue one as formulated by me, It is the contention of the claimant that he was employed by the centre as a Senior Registrar 1 and his appointment was terminated on the ground of his failure to complete his training as a resident doctor, it was his case that he was not employed as a resident doctor and as such he instituted this suit for a declaration that the said termination is null and void. The defendants on the other hand contended that the Claimant was employed as a resident doctor in training in Anaesthesia Department of the Centre vide a letter dated 12th December, 2008 i.e. Exhibit AA1, and it was consequent upon his failure to pass the requisite examination that his appointment was terminated.
A thorough reading of Exhibit AA1 reveals the following:
- The claimant was appointed by the Defendants as Senior Registrar I (Anaesthesia)
- The offer of appointment was for a probationary period of two years or such longer period as deemed advisable.
- Within the two years, the defendants were at liberty to terminate the appointment of the claimant if his services were inefficient or unsuitable in other ways.
- Unless the claimant was dismissed or under any bond to serve with the hospital for the stipulated period, the claimant was at liberty to terminate his appointment by a month notice in writing or by payment of one or three months (s) salary in lieu of notice.
Also tendered in this suit is Exhibit AA2, which is a letter confirming the claimant’s appointment.
However, under cross examination CW1 stated as follows:
– A Registrar is a medical doctor that is employed to undergo residency training.
– A medical officer is not employed to undergo any training but is to offer services.
– A Registrar is employed in a department where there is residency training
Q – if you are Snr. Registrar/Registrar you are meant to undergo
Residency Training, to which a guideline is attached.
A – Yes
– If you are a medical officer you are not required to go for any training.
Upon re-examination, CW1 stated:
– There was no guideline when I was employed.
– The guideline came later
A look at paragraph 3 of Exhibit AA1 reveals the following:
“You will continue to serve at Federal Medical Centre Owo, Ondo State under appropriate conditions of service applicable in Federal Teaching/Specialist Hospitals in the country as well as any other conditions that may be specified by the Board and the Management from time to time”.
In evaluating the above evidence and Exhibit, it can be deduced that:
- As a matter of fact and in practice, a Registrar is a medical doctor that is employed on the basis of undergoing a residency training.
- The Claimant was employed as a Registrar vide Exhibit AA1.
- There are other conditions attached to the claimant’s employment at the centre.
The law is trite that admitted facts need no further proof. See Adedeji & Anor v. CFAO Nigeria Plc. [2014] LPELR-22309 (CA)
The claimant in his testimony confirmed the status of a Registrar as a resident doctor in training and he is therefore bound by the residency guidelines in operation at the centre. This he cannot deny having wrote Exhibit OA2 on the 6th July, 2011, which was a request for an extension of his temporary appointment which reads as follows:
“I am profoundly grateful for the opportunity given me the management to serve the hospital.
I would be grateful if the deadline for the termination of my temporary appointment is extended by 6 months as this will enable me to qualify to sit for the final part of my professional examination.”
Signed
Dr Olabode
In Ogundipe v. The Minister of FCT & Ors [2014] LPELR-22771 (CA), the Court of Appeal per Adumein, J.C.A held thus:
“The importance of documentary evidence cannot be over-emphasized as documentary evidence can easily be used as a hanger to resolve an issue on which the parties have tendered conflicting evidence. The Supreme Court emphasized this point when it held in Bunge v. Governor of Rivers State [2006] 12 NWLR (Pt.995) 573 at 629 as follows: “The importance of documentary evidence is that it could be used to resolve issue which there is conflicting evidence. I would also be used as a hanger from which to test the veracity of oral testimonies”.
In Olawoye v. Bello [2015] LPELR-24475 (CA) the court of Appeal per Nimpar, J.C.A held thus;
“Documentary evidence has been held to be the best evidence, see the case of Eghareva v. Osagie [2009] 18 NWLR (Pt.1173) 299 here the Supreme Court per Ogbuogu J.S.C held thus: “It is now settled that documentary evidence is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof except where fraud is pleaded”…”
I find, based on the aforestated that the claimant was well aware that he had to undergo and pass a residency training in accordance with the Guidelines for residency training in operation at the centre as applicable to the cadre to which he was appointed. I so hold.
The Guidelines for Residency Training at Federal Medical Centre, Owo 2016 tendered as Exhibit OA5 provides as follows:
CONCEPT
- All Resident Doctors are trained to pass the Fellowship Examinations of the National Post Graduate Medical College of Nigeria and West Africa Medical Colleges. They are under temporary employment throughout the duration of their training and are mandatorily expected to render medical services as part of their training. The Federal Medical Centre Owo or Sponsor in case of Supernumerary Residents shall pay the salaries and allowances of the residents according to government approved salary scales for doctors. All resident doctors are expected to leave the centre on completion of their training programme.
DURATION OF TRAINING
- The Residency Programme is divided into two (02): Junior and Senior Residency Programme.
- A resident is on Temporary Appointment for the entire period of the programme.
- The period of appointment into the Residency Programme shall be in line with extant Public Service Guidelines.
- A resident will be automatically deemed to have withdrawn from the Residency Programme:
- If he/she fails to pass the Primary Fellowship Examination 18 months after enrolment for the Residency Programme.
- If he/she fails to pass the Part I Fellowship Examination 18 months after the date of the first Part I Examination he/she becomes eligible to sit.
- If he/she fails to pass the Part II Fellowship Examination 18 months after the date of the first Part II Examination he/she becomes eligible to sit.
- Six months after passing the Primary Fellowship Examination of any of the Postgraduate Medical Colleges.
- The employment of a resident after passing the Part II Fellowship shall be subject to availability of vacancy in the Hospital. If the Resident succeeds in getting Public Service appointment within six months after exiting the programme, he/she shall be entitled to add unto service record, the period of Residency Training for the purpose of seniority in the service, gratuity and pension.
- If the Resident is already in the employment of the hospital, the terms and conditions of in-service training in the Public Service apply should the field of training be chosen in line with the hospital’s human resource development framework. If the converse situation exists, the hospital will not be under any obligation to retain him/her when he/she exits the Residency Programme except a bond had been entered into with him/her.
WITHDRAWAL FROM THE TRAINING PROGRAMME
Consistent poor performance shall lead to withdrawal with the recommendation of the relevant department
The claimant knowing that his time would lapse because of his inability to pass the requisite examination, wrote Exhibit OA2 requesting for an extension, but his request was denied vide Exhibit OA3 and he was given an ultimatum stated therein as follows:
“Furthermore, I wish to reiterate Management’s earlier decision on your need to pass the Part II Fellowship Examination of either College on or before 31st December, 2011.
Please note that failure on your part to present evidence of your success in the Part II Fellowship Examination within the stipulated period, the Management will terminate your temporary appointment with a month salary in lieu of notice…”
Furthermore, in 2015 the management of the centre wrote Exhibit OA4 to the claimant reminding him that he ought to have completed his residency programme in 2011 and magnanimously gave him three months’ notice to complete the programme or withdraw his appointment. The claimant replied to this vide Exhibit AA6 wherein he informed the defendants that he was employed to render services to the hospital and not pursuant to a residency programme and as such Exhibit OA5 is not applicable to him. The claimant’s appointment was thereafter terminated on the 7th of November, 2016 vide Exhibit AA3.
The relevant question that needs to be resolved here is, did Federal Medical Centre, Owo, abide with the condition of service guiding the employment of the claimant in terminating his appointment?
The following facts stood out in this case:
- The claimant was employed as a Senior Registrar 1 who is expected to complete his Residency Training.
- Between 2008 -2016 the claimant was unable to complete the training.
iii. The Centre after several warnings terminated his appointment.
The claimant in support of his case cited the Public service rules, which was admitted as Exhibit AA5 in this case, a study of the PSR reveals the following provisions;
Rule 020302 – Within his probationary period, an officer is required to pass the prescribed examination appropriate to his employment,
(a) ……..
(b) …….
(c) the examinations for technical grades are those prescribed in the Scheme of Service applicable to the particular post.
020303 – To be eligible for confirmation in the Permanent Establishment, an officer appointed on probation is required to pass the prescribed examination, if any, during his probationary period and to complete his probationary period to the satisfaction of the authority empowered to appoint him. At the end of the period of probation the officer will, unless his probationary appointment is terminated or extended, be confirmed in his appointment.
In the above provisions, the claimant who was an employee of the Federal Medical Centre is by the condition attached to his cadre of employment, which was acknowledged by him in his evidence, and by virtue of Exhibit OA5, is under a duty or precondition to pass his Residency Training Programme within six (6) years for him to be able to continue to work at the centre. His continued employment is therefore predicated on his completing his residency exams within the prescribed duration. The claimant’s inability to fulfil this requirement after several warnings and extensions placed his continued employment in jeopardy which led to the termination of his appointment.
The claimant’s contention that he was a confirmed and pensionable staff of the centre vide Exhibit AA2 will not hold any water because of the pre-requisite attached to his cadre as a Registrar which is also recognised by the Public Service, see Rules 020302 (c) of Exhibit AA5 quoted above. This fact was not only admitted by the claimant under cross-examination but in his letter seeking an extension of his Residency training vide Exhibit OA2. Thus the public service rules can only recognise him as a confirmed officer only after he must have completed the condition precedent i.e. his residency training in accordance with the scheme of service attached to his cadre.
In Central Bank of Nigeria v. James Ejembi Okefe [2015] LPELR-24825 (CA) the Court of Appeal per Omoleye, J.C.A held thus:
“The term “condition” has been defined as: “a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right.”….”
Now a careful reading of Exhibit AA1 particularly paragraph 4 reveals the following:
“The offer of appointment will be on probation for two years or for such longer a period as may be deemed advisable. Within the probationary period, if it is established to the satisfaction of your Head of Department and the Management that you are not qualified for efficient services or unsuitable in other ways, your appointment may be terminated at any time by a month notice in writing or by payment of the one month salary in lieu of notice without any other compensation”.
I find based on the above that the centre was at liberty to terminate the appointment of the claimant for failure to fulfil the condition attached to his appointment as a Registrar at the centre and the letter of confirmation i.e. Exhibit AA2 cannot cure the fact that his permanent employment is based on his fulfilment of this condition precedent and attached to his cadre.
It is however the law that in reaching a decision to terminate the appointment of the Claimant, the centre has a duty to abide strictly with the statutory provisions binding the employment as a statutory appointment can only be terminated in the way and manner prescribed by the relevant statute or regulations guiding the employment, as any other form of termination inconsistent therewith is null and void and of no effect. See Yemisi v. FIRS [2012] LPELR-7964 (CA)
In Ahmed v. ABU & Anor [2016] LPELR-40261 (CA) the Court of Appeal per Wambai, J.C.A held thus:
“…..an employee of such an employment enjoys a special and higher legal status over and above the ordinary master and servant relationship in the matter of discipline, in that, the procedure laid down by the statute must be fully complied with. Such an employee with statutory flavour does not hold his office or employment at the pleasure of the employer but under the provisions and protection of the relevant statutes and regulations……if not, any decision affecting the right or repudiation or tenure of office of that employee will be declared null and void. Thus, the only way such an employment can be terminated is in accordance with the applicable statutes and regulations but no other way.”
Exhibit AA1 provides that before a probationary appointment is terminated, a month notice/ a month salary in lieu is required, this was apparently not done in the instant case as the termination of the claimant’s employment was with immediate effect. The failure of the defendants to give the claimant one month’s notice or salary in lieu of notice runs against the terms of employment of the claimant thus renders the letter of termination dated 7th November, 2016 unlawful, null and void and of no effect. I so hold.
On issue two, whether or not the claimant is entitled to the claims as captured in the extant complaint and statement of facts, I restate the claims as follows;
The 1st claim is for a declaration that the defendants’ letter of 7th November, 2016 titled “RE: OFFER OF APPOINTMENT AS A REGISTRAR IN ANAESTHESIA DEPARTMENT” which was addressed to and served on the Claimant purportedly terminating his appointment with the Federal Medical Centre, Owo is ultra vires, null and of no effect whatsoever.
I have found and held earlier in this judgment that the defendants did not give the claimant the requisite notice or salary in lieu of notice in accordance with his letter of appointment before terminating his appointment, thus this contravenes the terms and condition of his employment, the relief therefore succeeds. I so hold.
Claim 2 is for a declaration that the Defendants are not entitled to summarily terminate the Claimant’s appointment with the Federal Medical Centre, Owo on the ground that he has not completed his Residency Programme as he was not admitted or appointed into the residency programme of the Centre in the first place.
This relief succeeds because the defendants have a duty to give the claimant a month’s notice or salary in lieu of notice in terminating his employment as the claimant though in the employment of the defendants was not pursuing his Residency Programme at the centre and as such his employment cannot be summarily terminated, it is only if the residency programme he is undergoing is at the centre that he can be summarily terminated.
Furthermore, there is a need to point out the following:
- The claimant knew he was supposed to complete his residency training programme within six years for his appointment to be confirmed in his cadre of employment.
- The automatic withdrawal of doctors who do not pass the requisite examination is only in respect of doctors registered with FMC Owo residency training centre.
- The claimant is not registered with FMC Owo residency training centre but he is bound by the guidelines only to the extent that as a resident already in employment of the hospital, the terms and conditions of in-service training in the Public Service apply should the field of training be chosen in line with the hospital’s human resource development framework see page 3 p.6 of Exhibit OA5 i.e. as one already employed by the hospital he is required under the public service rules to complete the residency training within the specified time.
- The termination of his employment is to be with a month notice as specified for officers on probation in Exhibit AA1.
- The letter of confirmation i.e. Exhibit AA2 cannot cure the fact that his permanent employment is based on his fulfilment of a condition precedent and attached to his cadre.
I find therefore that the centre acted in contravention of the claimant’s contract of employment in failing to give him a month notice/salary in lieu before terminating his appointment. I so hold.
Claim 3 is for an order setting aside and nullifying the Defendants’ letter of 7th November, 2016 titled, RE: OFFER OF APPOINTMENT AS A REGISTRAR IN ANAESTHESIA DEPARTMENT” written to and served on the Claimant. Having held that Claim 1 succeeds, this claim also automatically succeeds. I so hold.
Claim 4 is for a declaration that the Claimant’s pensionable appointment with the FMC, Owo as a Registrar in Anaesthesia is still subsisting having not been terminated in accordance with the due process of law and the conditions of service guiding the said appointment.
The law is settled that where an employment is statutorily flavoured, and it is found unlawfully terminated and set aside, the employee is presumed to still be in the employment. See the case of Abdulraheem v. Olufeagba [2006] 17 NWLR (Pt.1008) pg. 280. I find therefore that this relief succeeds. I so hold
Claim 5 is for an order of perpetual injunction restraining the Defendants, their servants, privies, agents or any person or persons acting for or on their behalf from preventing the Claimant from carrying out his duties as an employee of the FMC, Owo or stopping the payment of his salaries or allowances accruable or derivable from his employment with the Centre. This relief is bound to fail as the centre is at liberty to terminate the employment of its staff but in accordance with the conditions of service. I find therefore that this relief fails. I so hold.
Claim 6 is for an order mandating the Defendants to pay to the Claimant the following sums of money:-
- a)any sum of money paid to the Claimant’s colleagues during the pendency of this case apart from his normal monthly salary and any money already paid to him.
This relief succeeds as it is incidental to the subsistence of his employment with the defendants. I so hold.
- b)Arrears of salary for the months of October and November, 2016 at the rate of N565,386.65 per month totalling N1,130,773.30k (One million, one hundred and thirty thousand, seven hundred and seventy three Naira and thirty kobo).
On this claim, during cross examination CW1 stated:
“Arrears of two months was paid to me during the pendency of this suit”
Admitted facts need no further proof. See Adedeji & Anor v. CFAO Nigeria Plc. Supra. This relief has therefore been overtaken by events.
- c) Claimant’s monthly salary from the month of December 2016 until judgment
is delivered in this case.
This relief succeeds having held that the termination of the claimant without following due process was unlawful he is entitled to reinstatement and the arrears of his salaries. I so hold.
The claim of the claimant in the alternative is aforestated, the status of an Alternative claim was pronounced upon in Access Bank v. Sijuwade [2016] LPELR-40188(CA) where the Court of Appeal per Danjuma, J.C.A held thus:
“An award of both the principal or main claim together with the alternative claim is an award at large and at best inchoate.”
An alternative relief can only succeed if the main relief fails. See Nwaogu v. INEC & Ors [2008] LPELR-4644 (CA)
In the instant suit, having held that the main claims succeed in part the alternative claims will be a mere academic exercise.
In conclusion, the Claimant’s Claims succeed in part and for the avoidance of doubt, I hereby declare and order as follows:
- The termination of the claimant’s appointment with the Federal Medical Centre, Owo is ultra vires, null and of no effect whatsoever.
- The letter of dismissal of the claimant’s appointment is hereby set aside.
- The defendants are hereby ordered to reinstate the claimant to his appointment with the Federal Medical Centre, Owo as Registrar forthwith.
- The Defendants are to pay to the Claimant his monthly salary from the month of December, 2016 and other entitlements till he is finally reinstated.
- Relief 5 fails.
I make no order as to cost.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
