DR. A. K. ADENIYI -VS- FEDERAL MINISTRY OF HEALTH, ABUJA & 2

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATED: 16^TH JANUARY 2020

SUIT NO: NICN/AK/33/2015

BETWEEN

A. K. ADENIYI …………………. CLAIMANT

AND

FEDERAL MINISTRY OF HEALTH, ABUJA
DR. AHMED LIASU ADEAGBO

(For himself and on behalf of the Federal Medical …………DEFENDANTS

Centre, Owo)

THE ATTORNEY GENERAL OF THE FEDERATION

REPRESENTATION:

Victor Mma- holding the brief of O.O. Ayenakin for the claimant

No representation for the defendants

JUDGMENT

The Claimant initiated this action vide a General Form of Complaint dated and filed 18^th of August, 2015, this was accompanied by statement of facts and all other processes. The claimant was later granted leave to amend his General Form of Complaint and other processes, by the order of court of 2^nd of May, 2017, and the amended processes were deemed properly filed and served on the same date along with a Further Witness Statement on Oath and list of documents to be relied upon. The case was assigned to this court on the 9^th of October, 2017, for trial, and the claims against the defendants are as follows:

a)A DECLARATION that the ultimatum of three months given by the Federal Medical Centre, Owo, to the claimant to withdraw his appointment if he cannot complete his residency training within three months is wrongful, illegal and void.

b)A DECLARATION that the claimant’s residency programme being done with the Federal Medical Centre, Owo defendants does not cancel claimant’s appointment as a career Medical Officer.

c)A DECLARATION that the completion of the claimant’s residency programme or cessation of same with the Federal Medical Centre, Owo does not terminate the claimant’s appointment as a career Medical Officer.

d)AN ORDER reinstating the claimant to his employment with the Federal Medical Centre, Owo with all arrears of salaries, allowances and promotions from the date of termination and thereafter.

The case of the claimant is that he was employed by the Federal Medical Centre, Owo, as a Medical Officer on HAPSS 12 vide a letter dated 20^th March, 2006, and thereafter appointed vide a letter dated 17^th October, 2008 as a Registrar in Obstetrics and Gynaecology Department of the Federal Medical Centre, Owo, for residency training. Consequent upon this, he stated that he occupied the dual role of a Medical Officer and Resident Doctor. He stated that, on 27^th May, 2015, he was issued with a letter by the Centre, giving him an option to complete his residency training within three months or withdraw his appointment. It is his case that his appointment as a Medical officer cannot be terminated upon his failure to complete his residency as both are distinct and separate. Further to this, he pleaded that his appointment was terminated despite the pendency of this suit and the service of an application for injunction restraining the Centre from tampering with his employment. He alleged that the termination of his appointment grossly violates the Public Service Rules.

The 1^st and 2^nd Defendants entered Appearance on 18^th of April, 2017 and filed their Joint Statement of Defence on the 14^th December 2017, while the 3^rd defendant failed to enter appearance or file any process in this suit. The 1^st and 2^nd defendants stated in their defence that the Claimant was a Senior Registrar in the Obstetrics and Gynaecology department and was on residency training before he instituted this suit and could not be deemed to be a Medical Officer anymore. They pleaded that the commencement of a residency training by a Medical Officer automatically determines the Medical Officer’s career as a matter of custom. The defendants also denied the claimant’s assertion that the 1^st Defendant is not created by any Act of the National Assembly and that the 2^nd Defendants is an agent/proxy of a disclosed Principal and ought not to be sued for himself nor in any representative capacity on behalf of the Federal Medical Centre, Owo. They also averred that it is impossible and illegal for the claimant to hold two different appointments simultaneously and urged the court to dismiss this suit with substantial cost against for being vexatious and frivolous.

The Claimant filed his Reply to the 1^st and 2^nd defendant’s statement of defence on the 26^th February, 2018, in his reply he pleaded that the residency programme was a post graduate or fellowship training, of which upon completion, he is expected to submit his fellowship certificate, and qualify to be a consultant. He averred that his career as a Medical Doctor is statutorily flavoured and governed by the Public Service Rules, and pointed out that the residency programme is a training contract, therefore a Medical Officer who undergoes residency training will have his career as a Medical Officer hibernating during the pendency of the training. He stated further that up till today, the 2^nd defendant has not formally terminated his public service career with the defendant, although he was not allowed to resume work as he was orally informed at the point of resumption that his resident appointment has terminated his medical career, thus both were determined. He denied any act of illegality by reason of the two appointments and cited several of his colleagues that had their Medical officer career subsisting while undergoing residency training. On the averment of the defendants on “No Work, No Pay” he stated that this issue will not apply to him, as he was ready and willing to work but was hindered by the 2^nd defendant and this was actuated by malice.

Trial commenced in this suit on the 10^th April, 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 K1 – K6, and was cross examined , he thereafter closed his case.

On the 20^th February, 2019, the 1^st and 2^nd defendants opened their defence by calling a sole witness, one Dr. Fasoranti Ifedayo, the Head of Clinical services of the centre, as DW1, he adopted his witness statement on oath and tendered several documents which were admitted without objection and marked as Exhibits FM1(a-d) – FM3. The witness was cross examined and the defence closed its case.

In Compliance with the rules of the Court, parties caused their final written addresses to be filed, and same were adopted on the 16^th October, 2019. A. A. Shamaki, Esq ocounsel for the 1^st and 2^nd defendants formulated four issues for determination in his address to wit:

Whether the claimant was right to have stayed away from office without complying with any of the Provisions of Chapter 10 Rules 100223 – 100226 of the Public Service Rules in the first place, even when no formal letter was given to him directing him to do so by the 1^st and 2^nd Defendants?

Whether an extraneous contract or matter can be imported into the letter of the 27^th of May, 2015 issued to the claimant terminating his residency training programme other than what the content expressly declared?

iii. Whether oral communication forms the official means of communication in the public service of the federation?

Whether the claimant can expect to rest/prove his case on the purported weakness of a defendant’s case rather than on the strength of his own case?

On issue one, counsel submitted that the Public Service Rules guides the conduct of a public servant. He submitted that it is the custom and practice in medical tertiary institutions that once a medical officer elects to undergo Residency training, the prior appointment as a Medical Officer automatically abates. He added that in the instance case, the claimant could not be running both appointments concurrently as holding a double appointment is against the service rules. He cited Public Service Rule 030402 (e) and (q) which considers absence from duty without leave and holding more than one full-time paid job as serious misconduct that could lead to the dismissal of a public servant.

Counsel reiterated that study leave is not granted as an automatic right for administrative reasons and submitted that the customary practice is that once a Medical Officer who wishes to change his line of career did not obtain any prior approval upon his appointment as a resident doctor, he is deemed that to have determined his appointment as a medical officer, he stated that this custom is based on expediency and practicality of the Public Service Rules, and by the choice of the claimant in this suit who switched from a Medical Officer career line and elected Residency training that will ultimately earn him the rank of a consultant. He reiterated that before an officer can be reabsorbed to his prior status of a Medical Officer he must have obtained a prior approval before embarking on the training, otherwise the officer’s appointment will be at the discretion of the management and based on the availability of fund and vacancies. He urged the Court to uphold his submission on this issue.

On issue two, Counsel stated that an attempt to import what was not contained in the letter of 27^th May, 2015 that gave notice of defendants intention to terminate the Residency training of the claimant is a dis-honorable attempt by the claimant to misdirect the court. He referred to both exhibited documents i.e. the letter dated 17^th October, 2008 titled OFFER OF APPOINTMENT AS A REGISTRAR IN OBST. & GYNAECOLOGY DEPARTMENT with Ref. No. FMC/OW/292/VOL. I/117 Exhibit K4 which offered the Claimant appointment into the a Residency training and the one of 27^th May, 2015 i.e. Exhibit K3 advising the claimant to complete the training or withdraw his appointment with the center, which were clearly talking of the same subject matter. He pointed out that Exhibit K4 reads in page 2, Paragraph/Clause 14 as follows: “The duration of the course shall not exceed five years (sic) after which the candidate may be advised to withdraw”. Exhibit K3 also reads similarly in part “… to complete the residency programme or withdraw your appointment with the centre.” He noted that both Exhibits K4 and K3 are in agreement and consistent in their choice of words on how they addressed the claimant’s appointment into the residency training and it is this same appointment he is being asked to withdraw for having exceeded required number of years. Reliance was placed on the cases of UNITED PARCEL SERVICES LIMITED V. SHOAGA (2015) 63 N.L.L.R. (P. 454, PARAS. B -D), ARAROMI & ORS V. FOLARIN (2018) LPELR-44279(CA), OBIKOYA V. WEMA BANK LTD (1991) 7 NWLR (PT. 201) 119 AT 1130 and AMIZU V. NZERIBE (1989) 4 NWLR (PT. 118) 755. Counsel urged the court to resolve this issue in the defendants’ favour.

On issue three, counsel submitted that oral communication is never a recognized way of formal communication in the public service of Nigeria. He referred the court to page 52 of the Civil Service Handbook and the Guide to Administrative Procedure in the Federal Public Service pages 32 – 45. He argued that the above cited clearly spelt out the recognized channels by which formal official communication are conducted to wit: (1) Letters (2) Memos (3) Gazettes (4) Internal Minutes (5) Circulars, etc. except oral communication. Counsel referred the court to the confirmation of this position in the testimony of the claimant under cross examinations where he confirmed same. He therefore submitted that the claim by the claimant to have received an official communication orally is not tenable and should be discountenanced by this court.

Counsel submitted that the employment letter of the claimant as a Medical Officer in paragraph 4 reveals that the claimant “… will serve at the Federal Medical Centre, Owo, Ondo State under appropriate conditions of service applicable in the Federal Teaching Hospitals in the country as well as any other conditions that may be specified by the Board of Management …..” this alone he argues makes the claimant subject to the rules and regulations of service and the claimant in paragraph 5 of the said letter was intimated of the existence of the bond practice in the federal hospitals throughout the country and he never applied to take advantage of it, while he went for his residency training. The defendants averred that the claimant was aware of the practice, and yet never showed up in the office to resume his so-called hibernated duties as a Medical Officer at any time till date. He submitted that the claimant is bound to prove beyond reasonable doubt all he had alleged in this case but has woefully failed to do so. He cited Section 134 Evidence Act 2011 and KWALI V. DOBI (2010) ALL FWLR (Pt. 532) 1609 SC and urged the court to dismiss this case in entirety as the claimant has failed woefully to prove his case based on the preponderance of evidence.

He stated that the claimant voluntarily vacated his duty post in error occasioned by his deluded machinations to grand stand against the 1^st and 2^nd defendants, and contrary to the terms of his employment and a practice that has the backing of the law over the years. He added that the claimant even after successfully completing the program as claimed by him never wrote to notify the 2^nd defendant in accordance with procedure. He mentioned that the federal government’s circular i.e. Exhibit FO2 (a-c) made it clear that where an officer for whatever reason had not showed up for work, he is not entitled to any pay for that period, he cited Section 43 (1) of the Trade Disputes Act which provides that “any worker who takes part in a strike shall not be entitled to any wages or other remuneration for the period of the strike.” Counsel added that the defendants’ sole witness never contradicted their pleadings even under cross examination at any time. He maintained that the Residency Training ordinarily should not terminate a Medical Officer’s employment and the reason is because if the Medical Officer gets the approval and clearance from the Management i.e. study leave or bonding as stipulated in his letter of employment or he is offered in service training, the case would be different as he would not be seen as to have voluntarily abandoned his duty rather the employment will be protected by the law fully. He urged the court to dismiss the claimant’s case.

The Claimant’s counsel on his own part filed his final written address on 11^th June 2019 in which he formulated a lone issue for determination to wit:

Whether in view of the facts and evidence before this court; the claimant has proved his case to be entitled to the reliefs sought.

Counsel submitted that the in view of facts and circumstances of this case, the claimant has proved his case and he is thus entitled to the reliefs sought. He noted that by virtue of provisions of the Evidence Act and in view of plethora of judicial authorities, the claimant in a civil suit has the evidential burden to prove his case on the balance of probability based on the provision of Section 14 of the Evidence Act.

Olabanjo Ayenakin Esq. submitted further that in employment disputes, the primary duty of the claimant is to place his condition of service before the court and thereafter proceed to state in what manner the condition of service was breached. He cited the case of Amodu v. Amode (1990) 5 NWLR (Pt. 150) 357 at 370, and submitted that the claimant has fulfilled this evidential requirement by stating in his pleadings that his employment is guided by the Public Service Rules. He noted that the defendants did not challenge this averment or contradict same. He therefore queried whether the termination of the claimant’s appointment or the position of the defendants that the claimant’s residency training automatically terminates his career appointment accords with the Public Service Rules? He answered the question in the negative and submitted that the Claimant’s appointment as a Medical Officer is a pensionable and fixed one, the claimant being a civil servant and his residency training is a post-graduate studies. Learned counsel pointed out the un-contradicted evidence of the claimant before this court that he committed no offence, neither was he given any query nor was he made to face any disciplinary panel and as such, his appointment cannot be terminated under any guise. It is the further submission of counsel that the procedure stated by the defendants’ in their evidence that, upon embarking on residency or postgraduate studies, the claimant’s career appointment automatically abates is strange, false, unknown to law and same is unknown to the Public Service Rules. He submitted that the termination of a civil servants’ appointment that contradicts the Public Service Rules will be held by the court to be wrongful, illegal and void. He cited the case of Chief Tamunoemi Idoniboye-Obu V. Nigerian National Petroleum Corporation (2003) LPELR-1426 (SC). He argued that the evidence of the defendants’ witness (DW1) under cross-examination contradicted his evidence in chief substantially, and noted that where a witness is inconsistent in his evidence, such a witness is not entitled to any credibility. He referred to the case of Osokoya V. Onigemo (2017) LPELR 42730 (CA) and submitted that where a Court holds that the termination of a statute flavoured employment is void; the consequential order of court is reinstatement and payment of salaries from the date of termination of appointment till judgment and thereafter. Counsel relied on P.T.I V. Nesimone (1995) 6 NWLR (Pt. 402) 474 488, C.I Olaniyan & Ors V. University of Lagos & Anor (1985) 2 NWLR Pt. 9, 599; Federal Medical Centre, Ido-Ekiti & Ors V. Isaac Olukayode Olajide (2011) FWLR Pt. 593, 1944 and Salima V. Kwara Poly (2006) page 496.

Counsel submitted that the averment or statement of the defendant’s sole witness under cross-examination that the claimant did not return to his duty post after his training was the reason the defendant did not absorb him back, cannot avail the defendants. He added that the defendants did not plead this piece of evidence and as such any evidence given under cross-examination on facts not pleaded goes to no issue. He cited the case of Akinbi V. Military Government Ondo State (1990) 3 NWLR (Pt. 140) 525 at 533. He submitted that the Claimant is not unaware of paragraphs 10 and 14 of the 1^st & 2^nd defendants’ Statement of Defence, he argued that paragraphs 10 and 14 are not facts as same are evasive, inconsistent and argumentative and as such, it has no place in pleadings. He argued that in law, parties are not allowed to state arguments and inconsistent facts in their pleadings, every pleading must contain statement of facts alone and not arguments or inconsistent facts. He cited the case of Amaechi V. INEC & Ors (2008) LPELR-446 (SC). Claimant’s counsel strongly contended that the defendants cannot maintain two inconsistent positions or cannot state two inconsistent facts in their pleading. He asserted that in this case, the defendants had already taken a position that the residency training appointment of the claimant has automatically terminated his career appointment as a medical officer; which according to DW1 under cross-examination is not the position. The defendants again stated that the residency training did not cancel the career appointment but that it was the claimant who stayed away from work. He stated that a party who is inconsistent in his evidence is not entitled to credibility. When a party makes two contradictory statements before the court, the court is not allowed to pick and choose which of the contradictory statements to believe. He cited Onya V. Ogbuyi (2011) ALL FWLR (Pt. 556), 497 R.6, in support of this position.

It is the further submission of counsel that the totality of the arguments canvassed under issue one in the defendants’ written address is misconstrued, misconceived and frivolous. He maintained that in view of the evidence before this court, the claimant cannot be said to have stayed away from the office. He argued that the evidence of the defendants both in their pleadings and evidence in chief is that the residency training of the claimant terminated his career appointment. Thus by implication, the defendants are sayimg that the career appointment of the claimant as a medical officer is no longer in existence.

He argued that going by the defendants’ case the defendants were apparently not expecting the claimant to resume as a medical officer again. The assertion of the defendants that he stayed away without permission is therefore an afterthought and a deliberate falsehood. This piece of evidence by the defendants that the claimant’s residency program terminated his career appointment is in tandem with the contention of the claimant that the defendants prevented him from resuming his career appointment. He contended further that the arguments that the claimant did not comply with the provision of the Public Service Rules in relation to study leave is also an afterthought. Learned counsel therefore submitted that since the claimant was having his residency training in the same institution where he has his career appointment, he does not need to apply for and obtain study leave. He posited that even if the claimant embarked upon residency training without obtaining study leave, there is no evidence that he was queried and disciplined for same.

In response to issue two formulated by the defendants, counsel contended that the argument of the defendants as contained in paragraph 15.0 of their written address are contradictory and self-defeating. The defendants had argued in one breath that there is nothing in the letter of 27^th May, 2015 terminating the career appointment of the claimant, as what was clearly terminated was the residency training. In paragraph 15.0 of the defendants’ written address; the defendant stated that the claimant had since the inception of his training given up his career appointment. The case of the claimant is that his career appointment subsists and that he is still a staff of the defendants. He therefore submitted that the evidence of the defendants’ sole witness under cross-examination resolves the controversy, in that DW1 confirmed that the career appointment subsists and by this admission, he argued that the claimant needs no further prove. He cited the case of Okoya V. Santilli (1994) 4 NWLR (Pt.338) 256 at 316.

On issue three of the Defendants’ final written address, the counsel submitted that it is glaring that the pleadings and the final address of the defendants are full of material contradiction and the contradictions are helpful to the case of the claimant. He concluded that the claimant has placed his conditions of service before this court in line with judicial authorities and has shown how the defendants flouted same. He submitted that the claimant is entitled to the reliefs sought and urged the court to grant the prayers of the claimant in its entirely.

I have carefully considered the processes filed by both parties in this case, the documents tendered in evidence and the submissions of counsel on both divide and have come up with three (3) issues for the just determination of this suit which are:

1) Whether or not the Claimant’s employment as a Medical Officer automatically terminated his subsequent employment as a Registrar?

2) Whether or not the three (3) months’ notice issued by the defendants to the claimant to complete his training or have his appointment terminated is lawful?

3) Whether or not the claimant is entitled to the reliefs sought?

It is important at this point to reiterate the fact that the 3^rd defendant did not file any process in this suit and save for one occasion when one S.G. Abdullahi (SSC), Federal Ministry of Justice appeared before this court on the 18^th January, 2018, and informed the court of his intention to file his processes before the next adjourned date, the 3^rd defendant did not deem it fit to file any process in defence of this suit till date, despite the service of hearing notices on the office. Thus, the suit is undefended by the 3^rd defendant.

Secondly, the defendants raised an issue of law on the legal capacity of the 1^st and 2^nd defendant although not addressed by both parties in their final written address, I find it important to state here that where an office is recognized or created by statute, notwithstanding the absence of an express provision on its capacity to sue or be sued, the right to sue and be sued can be inferred from the statute, also where a party is appointed to a public office and hold himself out to members of the public as having the power to enter into or determine a contract, it does not lie in his mouth to say that they are not a juristic person. The Federal ministry of health is a creation of statute and the office of the 2^nd defendant is a public office and both are therefore capable of being sued based on the above principle, see the case of African Ivory Insurance Company Limited & Ors. V Commissioner for Insurance (1998) 1 NWLR Part 532.

On issue one, it is the general position of the law that he who asserts must prove and in a case of wrongful or unlawful termination, the evidential burden of proof rests on the claimant to prove; (i) the terms of the contract of employment, and (ii) how the contract was breached by the defendant. See Section 131, 132 and 133 of the Evidence Act 2011 and the case of Zenith Bank v Akinniyi (2015) LPELR- 24715 (CA). The claimant in pursuit of his claim tendered Exhibits K1, K2 and K4. The claimant’s position is that his appointment as a medical officer subsists despite his subsequent appointment as registrar, as this is customary in arrangements of this nature. The 1^st and 2^nd defendants on their own part contended that the usual practice is that once a medical officer is appointed as a registrar, the claimant’s employment as a medical officer has been overtaken by his subsequent employment as a registrar. It is however worthy of note that, the parties in this suit were unable to provide credible evidence in proof of the alleged custom they were relying on. Whereas, it is the law that a custom may be adopted as part of the law governing a particular set of circumstances, if it can be judicially noticed, or can be proved to exist by evidence, however, the burden of proving such a custom exist shall be upon the party alleging its existence. See the case of Prince Joseph Olaoye & Ors. v The Attorney General & Commissioner for Justice, Osun State & Ors. The parties in this suit having failed to adduce evidence on the custom/practise they are relying on, failed to discharge the burden placed on them and same is hereby discountenanced by this court. I so hold.

In the absence of any rules or guidelines in respect of the status of the claimant’s appointment as a registrar while he was a medical officer, I am bound by law to restrict my considerations to the facts and evidence placed before me. See the case of Akpabot v PHCN & Ors. (2013) LPELR-20697 (CA).

The fact that the claimant took up an appointment as registrar with the Centre after he was appointed as a medical officer is not in dispute, thus, it requires no further proof. See the case of Ukachukwu & Anor. V Nkpado (2012) LPELR-15421 (CA). The bone of contention is the implication of the claimant’s appointment as a registrar vis a vis his prior appointment as a medical officer. It is on record that by Exhibits K1 and K2, the claimant was employed and confirmed as a medical officer by the Centre, while he was appointed as a registrar vide Exhibit K4. It is also in evidence before this court that the position of medical officer is a career path and an actual employment in the Federal Civil Service while the position of registrar is only a residency training, at the conclusion of which the candidate becomes a consultant at a hospital of his choice unless there is an agreement to the contrary. A cursory look at Exhibits K2 and K4 reveals that the claimant was confirmed as a medical officer on 21^st October, 2008 while he was appointed as a Registrar on 17^th October, 2008. This invariably means that the claimant’s employment as a medical officer was confirmed though in retrospect, after he was appointed as a registrar. The question that arises therefore is, if the claimant’s employment as a registrar has terminated his employment as a medical officer, why would his appointment as a Medical officer be confirmed after he was appointed a registrar?

I will pause here to examine the evidence of DW1 in paragraph 4 of his written statement on oath, adopted before this court, therein he stated that the claimant’s appointment as a medical officer in FMC, Owo, no longer subsists due to the natural operation of an unwritten customary practice(which this court has earlier discountenanced) associated with a subsequent appointment as a Registrar is recognized in all health institutions in the country. It is surprising that DW1 later turned around to testify during cross-examination thus:

‘’I was working as a medical officer at FMC, Owo, before my residency training, after completion of residency at UBTH, I returned to FMC, Owo.’’

“residency is a training program only and is not a career service, it is actually a post-graduate study.’’

“a medical officer is a senior civil servant, to my knowledge, the claimant’s appointment has not been terminated by the Federal Civil Service Commission.’’

‘’I know FMC, Owo, terminated the claimant’s residency training but I am not aware they terminated his appointment as a medical officer.’’

The above testimony is a clear contradiction of his testimony in chief.

I find from the testimony above and at the risk of repetition that the defendants’ assertion that it is customary for resident training to terminate a medical officer’s appointment is not credible, as it is the position of the law that where two pieces of evidence of a witness contradicts each other, both will be rejected by the court. Thus, this court is left with the claimant’s testimony that his appointment as a registrar did not abate his employment as a medical officer. The evidence available is in support of the assertion that the residency is a training towards acquiring the rank of a consultant thus the defendants’ contention that the claimant cannot lawfully hold two federal appointments in this wise is grossly misconceived. It is based on the reasoning above that I find that that the claimant’s appointment as a register did not abate his employment as a medical officer. I therefore resolve this issue in favor of the claimant.

On the second issue formulated by me, I find the content of Exhibit K4 (letter of offer of appointment as a registrar in Obstetrics and Gynecology Department) which contains the terms and conditions of the claimant’s appointment as a registrar instructive. In particular, clause 14 of Exhibit K4 which reads;

‘’The total duration of the course shall not exceed five (05) years after which the candidate may be advised to withdraw.’’

Thus, there is a clear indication that the Centre retains the power and the right to terminate the claimant’s appointment as a Registrar if he fails to complete the training within the time stipulated in the cited Exhibit K4. The issuance of Exhibit K3 to the claimant by the Centre, demanding that he completes the course within three months or withdraw his appointment is therefore in order. A cursory look at the date on both Exhibits K3 and K4 shows that there is a time lag of about 7 years between both letters, meaning that the claimant failed to conclude the course within the stipulated time of five (5) years. This without doubt triggered the powers of the defendant under Exhibit K4 to issue and serve Exhibit K3 on the claimant. In view of the foregoing, I find that the Centre was well within its right in issuing Exhibit K3 on the claimant as same is neither illegal, wrongful nor void. Thus, the termination of the claimant’s appointment during the pendency of this suit as alluded to by the claimant in the Statement of Facts and done vide Exhibit K5, was for the residency training of the claimant and it follows that his appointment as a medical officer still subsists. I therefore resolve this issue in favor of the defendants.

On issue three, having held that the claimant’s employment as a medical officer still subsists and that Exhibit K3 issued to the claimant is not unlawful, I shall now pronounce on the reliefs sought by the claimant.

The claimant seeks a declaration that the ultimatum issued to him by the 1^st defendant is wrongful, illegal and void. On the strength of expositions outlined in issue 2, I find that the claimant is not entitled to this relief, it therefore fails, I so hold.

On reliefs (b) and (c) sought by the claimant in this case, I find in line with the decision of this court on issue one I above, these reliefs therefore succeed. I so hold.

On the fourth relief sought by the claimant, it is trite law that he who asserts must prove. See Section 131 of the Evidence Act 2011 and the case of MTN Communication Ltd. v Amadi (2012) LPELR-21276(CA). It is the duty of the claimant in this case to establish that he is entitled to the arrears of salary, allowances and promotions sought. The defendants contended that the claimant neglected to resume his duty post as a medical officer after the termination of his residency. In response, the claimant averred that he was not allowed to work after the issuance of Exhibit K5. The defendants also asserted that the claimant’s appointment as a medical officer terminated upon his appointment as a resident doctor based on their pleadings, this position was however refuted by DW1 in his evidence under cross examination before this court, when he affirmed that the claimant’s appointment as a medical officer was never terminated. Added to this, I find nothing in the evidence placed before me to support the assertion that the claimant’s appointment as a Medical Officer was lawfully terminated and in accordance with the Public Service Rules which guides the claimant’s employment. It is the position of the law that parties are not allowed to approbate and reprobate at the same time. The entire gamut of evidence presented before this court confirms the claimant’s assertion on the subsistence of his appointment as a medical officer, this is further reiterated by the fact that he was issued a letter of confirmation i.e. Exhibit K2 after his appointment as a registrar vide Exhibit K4. The implication of this is that the claim for arrears of salaries, allowances succeeds as it is the law that in statutory emloyment, the employee will be restored tohis position prior to the unlawful termination. I so hold.

On the claim for promotions, I find that it is the position of the law that promotion is not automatic, but is subject to some pre-conditions that must be fulfilled, and if an employee is unable to fulfil the pre-condition or the criteria of same, this may not be granted. This position was held by Kekere-Ekun JSC in the case of Sylvester C. Nwoye v Federal Airports Authority of Nigeria (2019) LPELR-223/2012, where she stated as follows;

“promotion from one level or position in an organization to another is not a right but a priviledge, which must be earned. An employer cannot be compelled to promote its employee no matter the good opinion the employee might have of himself”.

Consequent upon the above, I find that the claim for promotion fails. I so hold.

In conclusion the claimant’s action succeeds in part and for the avoidance of doubt, I declare and order as follows;

1) The issuance of an ultimatum of three months by the Centre to the claimant for him to conclude his Residency training is not illegal or wrongful.

2) The claimant’s appointment as a Medical Officer still subsists at the Federal Medical Centre, Owo.

3) The claimant is hereby reinstated to his employment as a medical officer with the Federal Medical Centre, Owo, from 7^th November, 2016.

4) The defendants are to pay the claimant arrears of his salary and allowances from the date of termination i.e. 7^th November, 2016, till he is finally reinstated.

I make no order as to cost.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge