IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA ———————————————————————————-Suit No: NICN/CA/59/2015 Petitioner: COMFORT EKPENYONG EDET And Respondent: UNIVERSITY OF CALABAR TEACHING HOSPITAL Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: R. ONYEKWELU for the claimant CHIEF OROK IRONBAR for the defendant with IMMCULATA IRONBAR J U D G E M E N T The claimant, by a General Form of Complaint filed on 24th November, 2015 accompanied by the Statement of Facts, Claimant’ Written Statement on Oath, List of Witnesses and List of Documents, approached the Court for the following reliefs: A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. An Order of this Honorable Court reinstating the claimant and restoring her to her position (i.e.) Grade Level 7 step 5) prior to the issuance of letter of termination to her employment. An Order of Court directing the defendant to pay to the claimant her salary arrears from the date of purported termination of her appointment to the determination of this suit at the rate of Ninety Five Thousand. Eight Hundred and Fifty Seven Naira, Thirty Three Kobo (#95,857.33) per month. An Order directing the defendant to pay the claimant the cost of Five Hundred Thousand naira (#500,000.00) only. An Order of General Damages to the tune of Ten Million (#10,000,000.00) only for the trauma and hardship caused her by the unlawful termination of her employment. The Claimant’s Case The Claimant was an employee of the defendant since October, 2011 when she was offered an appointment through a letter of Appointment dated 10th October, 2011 and that following her employment she worked in several units before December, 2012 when she was transferred/posted to Obstetrics and Gynecology revenue Unit. The Claimant averred that her employment has a statutory flavor and as such, the termination of her employment must follow laid down rules as provided by extant laws establishing the defendant. Furthermore, that being a senior staff of the defendant, a proper constituted Board of the defendant has the power to approve the termination of her appointment. But that there has not been any such Board in place in the defendant’s hospital since May, 2015. She averred that the defendant invited her variously on 2nd October, 2013 and 14th July, 2015 to an Investigative Panel set up by the defendant on an allegation of financial impropriety alongside other members of staff and that till date, nothing was communicated to her either verbally or in writing as to the outcome of the Panel’s report. The Claimant stated that the termination of her employment is grossly irregular, callous, unlawful, null and void same not having followed due process, stating that it will service the cause of justice for the Court to order her reinstatement and payment of arrears of salaries from the dated of termination of her appointment to her reinstatement. The defendant filed a STATEMENT OF DEFENCE filed on 11th March, 2016. The defendant averred that claimant cannot assert that her services to the defendant had been without blemish when sometime in 2013, she was indicted for financial impropriety. The Defendant also averred that claimant cannot require the defendant to produce the copy of a query issued her in 2015, receipted and replied to by here on 6th April, 2015. Defendant admitted that the claimant was served a letter of invitation for a chat with a panel of investigation dated 14th July, 2015 but denied the averment that copies of the relevant documents in issue were not shown to her. And stated that the Internal Audit Report of July, 2013 and recommendations of the two separate panels all indicted the claimant. The Claimant in reaction filed a REPLY TO STATEMENT OF DEFENCE 30th September, 2016. The Claimant averred that the termination of her appointment did not follow due process that her employment is regulated by an Act of the National Assembly which was not followed as laid down by the said Act and therefore irregular. She stated that she was not indicted for any financial impropriety either in 2013 or any time whatsoever. And that no single reorganization took place in the defendant’s organization except that they are even employing new hands to show that the termination of the claimant’s appointment was done mala-fide, for reasons best known to the isolated management staff who carried out the termination without Board approval. The claimant averred that the termination of her appointment apart from being irregular and unlawful has caused her so much trauma and ridicule. At the trial the claimant testified as CW, adopted her written statement on oath which was marked Exhibit C1 and proceeded to tender six (6) other exhibits. During cross examination the claimant testified that she was a holder and that her contract can be terminated as per Exhibit C2, by either side given one month notice she further testified that her appointment could only be terminated by the Board and that the Board of Management could terminate her appointment, the one set up by the Federal Government to see to Senior Staff, she further testified that she was paid her monthly salary up until October 2015 even though there Boards had stopped sitting since 2015. She further testified that she was a Federal Government staff and that her salary was paid by IPPIS and that she had not sued IPPIS because they did not employ her, relying on her C2. She testified that she was issued two queries both on financial impropriety and that she appeared before two panels The defendants called one witness Ededet Eyoma Bassey, the Human Resources Director / Legal Adviser with the defendants, who testified as DW, adopted his written statement on oath which was marked as Exhibit D1 and tendered four (4) other exhibits. During cross examination. During cross examination DW testified that he was the head of Human Resources employed in November 2014, very familiar with the claimants records, familiar with the issues of procedure of the defendant and that his evidence was not based on first hand evidence. He further testified that the defendants had one Board, to which the Management reported and in the absence of the Board it would report to the Ministry. He also testified that by Exhibit C2, it was the Board of Management that was empowered to terminate the claimant and if there were no board the Ministry could terminate through its agents. And at the time of issuing Exhibit C3 there was no board in place and that the Ministry of Health as directed by the President of the Federal Republic of Nigeria. He answered in the negative the question that the Federal Ministry of Health takes over the function of the Board and that the Ministry oversees and that it could only direct the defendants. And that anyone working under the defendants employment was a Public servant and issues of effecting discipline are governed by the Public Service and where there is an absence of a Board the letter of termination are signed by the implementing person;- the Head of Human Resource Management. He also testified that he claimant was indicted by two panels tendering Exhibit D3-D3(31) and Exhibit D4- D4(51). In response to the question that DW signed C4 as Deputy Director, and that he issued the queries and the demand that he present his authorization to terminate the claimant he tendered Exhibit D5. At the close of trial the parties were directed to file their final written address, The DEFENDANT’S FINAL WRITTEN ADDRESS was filed on 28th October, 2016 and dated same day. Wherein the defendants raised the following ISSUES Whether the claimant has presented a case strong enough to entitle her to judgment. Whether claimant’s employment was properly terminated. Learned Defence Counsel Chief Orok Ironbar submitted that having known the state of the evidence, the procedural law is that – he who alleges proves. SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (2016) 7 NWLR (PT. 1511) 284. He submitted that it is also known that pleadings do not constitute evidence as decided in the case of WAZIRI & ANOR. V. GEIDAM & ORS. (2016) 2 MJSC (PT. 111) 83 @ 124, PARAS. F-G Coram, Peter-Odili, JSC. The Defence Counsel argued that claimant only alleged that her termination did not come from the proper authority, posing the question: “what is the proper authority―. He contended that if it is only the Board that can terminate her employment, where was that proved on record? as he who alleges proves. OJU v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 @ 136, PARAS. F-H; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150. The Counsel submitted that being a contract of employment, it is the only contract before the Court that must be complied with i.e. Exhibit C2. IDONIBOYE OBU v. NNPC (2003) 2 NWLR (PT. 805) 589; (2003) 4 MJSC 131. He submitted that whether the reports of investigation were communicated to claimant or not does not stop the defendant from terminating her employment. AJAYI v. TEXACO NIG. LTD. & 2 ORS. (1987) 9-11 SC 1 @ 6. It is defence counsel’s contention that the fact that claimant responded to the queries means that she was afforded fair hearing. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648, PARA. F, Coram Rhodes-Vivour, JSC; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. The Counsel submitted that by Public Service Rules under Paragraph 030402 and Chapter 3 Sec. 4 Paragraph 030407 (a), “claimant was even lucky not to have been dismissed outrightly―. He submitted that it is not necessary nor a requirement under the extant laws that before an employer summarily dismisses his employee from his service, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty bordering on criminality. S.B. OLANREWAJU v. AFRIBANK PLC (2001) FWLR (PT. 72) 2008. Counsel argued that the claimant as part of the failure of her case provided no proof or reference to the law allowing her to be reinstated when the law is that an employee cannot be forced upon an unwilling employer. OYEDELE v. IFE U.T.H. (1990) 6 NWLR (PT. 155) 194 C.A.; IWUCHUKWU v. NWOSU (1994) 7 NWLR (PT. 357) 379. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 22nd November, 2016 and dated same day. Wherein the claimant raised the following issues: Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. ON ISSUE 1 Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Learned Counsel to the Claimant Rueben Onyekwelu Esq. submitted that Sec. 10 (3) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, provides a dividing line between the discipline of an erring senior staff who can only be dismissed or terminated on the direction of the Board and his/her junior counterpart who may be disciplined (dismissed or terminated) by the Chief Medical Director (Management) without recourse to the Board. He submitted that Sec. 9 (1) of the Act is the statutory laid down procedure to discipline the claimant and that facts admitted need no further proof. ODUNZE v. NWOSU (2007) 31 NSCQR 378; NASI v. UBA (2005) 23 NSCQR 127 @ 130; ADUSEI v. ADEBAYO (2012) 49.3 NSCQR 1492 @ 1494; JOLASUN v. BAMGBOYE (2010) 44 NSCQR 94. It is Claimant counsel’s contention that the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010 is not a piece of evidence in the mold of what the defendant is trying to categorize as requiring tendering in open court, but a statutory provision which the court should take judicial notice of as provided by Sec. 122 (1) of Evidence Act, 2011. AG. FED. V. ABIA STATE (2002) FWLR (PT. 102) 1, per Uwais, CJN. He further submitted that all that is required is to plead that the party is relying on a statute as the claimant has done in paragraphs 6, 7 and 8 of the Statement of Facts. BENDEL NEWSPAPERS CORPORATION v. OKAFOR (1993) 4 NWLR (PT. 289) 617; MAKANJUOLA v. BALOGUN (1989) 3 NWLR (PT. 108) 192; A.G BENDEL STATE v. A.G. FEDERATION (2001) FWLR (PT. 65) 448. ON ISSUE 2 Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. Learned Counsel to the Claimant submitted that termination of any employment enjoying statutory flavor must follow the process as prescribed by statute. LAGOS UNIVERSITY TEACHING (HOSPITAL MANAGEMENT BOARD) v. MRS. OLANIKE BETTY ONI (2007) 4 FWLR 6987 @ 7028. He urged the Court to hold that this clause reinforces and is a strong reminder to the Board and Management that there are laid down procedure as provided by the Act in discipline of employees. CENTRAL BANK OF NIGERIA v. IGWILO (2007) 5 KLR (PT. 235-236) 2275 @ 2277. Claimant’s Counsel submitted that where an employee’s service is protected by statute (as in the present case) and his employment is wrongfully terminated, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. SHITTA BAY v. PUBLIC SERVICE COMMISSION (1981) 1 S.C. 40; UDO v. CROSS RIVER NEWSPAPAER CORPORATION (2001) 14 NWLR (PT. 732) 116; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; Galinje, JCA in REGISTERED TRUSTEES OF C & S v. IJAODOLA (2007) FWLR (PT. 389) 5921 @ 5925. He submitted that the defendant has not discharged the burden placed on her by reason of the provision of Sec. 133 (2) of the Evidence Act, 2011 and that the defendant has also failed to show that even the alternative route provided by the so called presidential directive was communicated to the management through circular or memo, or that any directives was received from the mother Ministry by positive evidence as required in the presidential directive. ALAO v. KURE (2000) FWLR (PT. 6) 889; OYOVBIARE v. OMAMURHONU (2001) FWLR (PT. 68) 1129. It is counsel’s submission that where a public servant is accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. NIGERIAN TELECOMMUNICATION LIMITED v. AWALA (2001) 45 WRN 146; LAOYE v. CIVIL SERVICE COMMISSION (1989) 2 NWLR (PT. 106) 652; GEIDAM v. NATIONAL ELECTRIC POWER AUTHORITY (2001) 2 NWLR (PT. 696) 45.He urged the Court to hold that any indictment flowing or contained in Exhibit D12 is a travesty and lacking in substance. SOKEFUN v. AKINYEMI (1980) FEDERATION OF NLR 184. Claimant’s Counsel submitted that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements as held in the case of NNPC v. CLIFCO (2011) 46 NCQR 114 @ 120; SHENA SECURITY LIMITED v. AFRO PAK (2008) 34.2 NSCQR 1287 @ 1291; REYNOLDS CO. LTD. V. ROCKONOH CO. LTD. (2005) 22 NSCQR 1005 @ 1010, per G.A. Oguntade, JSC. The defendants in reaction filed a REPLY TO CLAIMANT’S FINAL ADDRESS on 25th November, 2016 and dated 24th November, 2016. ON ISSUE 1 Learned Defence Counsel argued that Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15 relied on by claimant refers to the removal and discipline of clinical, administrative and technical staff, which does not include claimant who was employed by her own letter of appointment tendered as Exhibit C3 as Higher Executive Officer. Furthermore, that she led no evidence to prove that she fell into any of the 3 categories and that the Court cannot be left to decide on conjecture. ON ISSUE 2 Learned Counsel for the defendant submitted that it is not true as argued by claimant in paragraph 5.6 – lines 7-8, that “The Minister however exercises control (sic) of parastatal at policy level through the Board of the parastatal only―. This is so because, by Sec. 17 of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, the Minister is empowered to give to the Board directors of a general character…, etc., that the Minister is not restricted strictly to matters on policy. On the 5th December parties adopted their final written addresses and adumbrated their respective positions accordingly and this matter was adjourned and reserved for judgment The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant in this suit is entitled to the reliefs sought. Before I delve into the merits of this issue I shall address the objection raised by the claimant during trial that Exhibit D2 did not conform with Section 83 of the evidence Act. The procedure in this court made possible by the case of KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED [2012] 27 NLLR (PT. 78) 374, and Section 12(2) to the effect that this court is flexible and informal and with the result that all frontloaded documents are deemed admitted unless expressly objected to and when the objection is raised the party is at liberty to argue his objection in his final address. In the instant case the claimant did not raise this objection in his further address depriving the court from addressing the particulars of his objection be that as it may; Section 83 of the Evidence Act 2011, provides that; 83(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied- (a) If the maker of the statement either (i) Had personal knowledge of the mailers dealt with by the statement, or (ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters: and (b) If the maker of the statement is called as a witness in the proceeding: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. (2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused order that such a statement as is mentioned in subsection (I) of this section shall be admissible as evidence or may without any such order having been made admit such a statement in evidence notwithstanding that – (a) The maker of the statement is available but is not called as a witness: and (b) The original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be. (3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. (4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written made or produced by him with his own hand or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible 5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances and may in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to tie the certificate of a registered medical practitioner. Exhibit D2 is an internal memo of the defendant dated 17th August 2015 with the subject “Report of Panel of Investigation of Financial Impropriety by Staff of the Account Department― from the Secretary House Committee to the Director of Administration informing the addressee that management had considered the panel’s recommendation and has directed termination of appointment in respect of the six listed members of staff, of which the claimant is No. 2, and went on to mention the other members of staff whose names were not listed for demotion and loss of increment. The memo concludes with the phrase “Please implement the decision of Management― and was signed by Frances I. Otu Esq. The document also contained one minute; ‘DD (HR) Pls implement decisions (1) and (2)’, referring to the respective recommendation in respect of the two sets of staff. As I stated above the claimant did not raise his objection in his address to enable the court identify the thrust of his objection and address same but looking exhibit D2, I find that it although the maker was not called as a witness DW testified that he was familiar with the procedure of the defendant as head of HR and formerly Deputy Director HR, and that he was very familiar with the claimants record Similarly the document was not made in the contemplation of this suit considering it was made before /Exhibit C3 was issued; the fulcrum of this case. All in all I find that the Exhibit D2 was rightly admitted. Now to the merit of this suit. The reliefs of the claimant are thus; A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. An Order of this Honorable Court reinstating the claimant and restoring her to her position (i.e.) Grade Level 7 step 5) prior to the issuance of letter of termination to her employment. An Order of Court directing the defendant to pay to the claimant her salary arrears from the date of purported termination of her appointment to the determination of this suit at the rate of Ninety Five Thousand. Eight Hundred and Fifty Seven Naira, Thirty Three Kobo (#95,857.33) per month. An Order directing the defendant to pay the claimant the cost of Five Hundred Thousand naira (#500,000.00) only. An Order of General Damages to the tune of Ten Million (#10,000,000.00) only for the trauma and hardship caused her by the unlawful termination of her employment. Reliefs 1- 3 are for a declaration that the claimants termination and was grossly irregular, callous, unlawful, null and void same not having followed due process and an order reinstating the to her appointment with all due salaries and allowances from the date of the purported termination until the date of this judgment/ While reliefs 4 and 5 are for reimbursement of legal cost incurred by the claimant and damages for trauma and hardship following an unlawful termination. In determining these reliefs the Court is required to ascertain the employment status of the claimant so as to ensure she received her due under the law. The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavour….― The defendants have argued that the claimant’s appointment was unconfirmed and the relationship, purely a master and servant one devoid of any special characterizations. While it is the claimants Counsel’s contention that the claimant is a senior staff of the defendants and that her employment has statutory flavour, the Claimant went further to invite the court to hold on the admission of DW that the claimant was a senior staff relieves them, the claimant of any legal requirement to prove that fact: that the claimant is a senior staff. To accept such an admission has its own ramifications in the circumstances of this case. The claimant had pleaded that she was employed on Level 07, she had put forward no evidence to the effect that she had been promoted or confirmed .See the unreported case of NICN /121/AK/2013 ABODURIN MOSES OLA & 31 ORS Vs. GOVERNING BOARD RUFUS GIWA POLYTECHNIC OWO & ANORS (unreported) delivered 29th September 2014 where this court held that failure to present evidence of advancement in employment left the court no alternative than to treat the claimant as if he were still at his entry level. In the instant case the claimant did not even prove that level 07 was a senior service post in the defendant. This court has held that in a situation when an employee is allowed to continue in employment beyond the period of confirmation without a letter from the employer such an employer is precluded from continuing to treat such an employee as an unconfirmed staff, see the cases of TOTAL (NIG.) PLC V. ONUOHA [2001] 11 NWLR (PT. 725) 634 and OBAFEMI AWOLOWO UNIVERSITY V. ONABANJO [1991] 5 NWLR (PT. 193) 549 CA. This is not one of the reliefs sought by the claimant albeit and by SUIT NO: NICN/IB/88/2013 DR. OLADELE OSOSANYA Vs. GOVERNING COUNCIL OF FEDERAL UNIVERSITY OF AGRICULTURE, ABEOKUTA & 3 ORS. DATED: 13th NOVEMBER, 2014 “An unconfirmed staff cannot claim the benefits that inure in a statutory employment― see also MOHAMMED M. ALHASSAN V. AHMADU BELLO UNIVERSITY, ZARIA & ORS [2009] LPELR 8138 CA, IGWILO VS. CENTRAL BANK OF NIGERIA (2007) 14 NWLR (PT. 1054) 393. Be that as it may be the law requires the court to determine the nature of the claimant’s employment. The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be―, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service― see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C In SULIEMAN ADAMU Vs. MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B. In the instant case the claimant has tendered Exhibit C2 reproduced below: UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA EDET, COMFORT EKPENYONG 10th October 2011 Dear Sir/ Madam OFFER OF APPOINTMENT I am please on Behalf of the Board of Management of the above Teaching Hospital to offer you the post of HIGHEER ECXECUTIVE OFFICER at the Hospital on a commencement salary of N891712.00 per annum in the salary CONHESS?CONMESS 7/2 with effect from the date of your assumption of duty. 2. This offer of appointment is subject to your being passed mentally fit for service with the Teaching Hospital. It is a condition of employment that members of the Medical Profession employed by the Board should be members of a recognized Medical Defence of protection organization. This appointment will except where your services are transferred after a previous confirmation, be on probation for two years or for longer period as may be deemed advisable after which it will be confirmed on pensionable grounds. The duties of the post shall include the usual duties of this office in which you are engaged and any other suitable duty the Board may call upon you to perform. You shall not either directly or indirectly engage in or be concerned with any other service or business whatsoever or receive commissions or profit of any kind but shall devote the whole of your time and attention to the service of the Board and shall use your utmost exertion to promote the interest of the Teaching Hospital. You shall conform to the rules and regulations of the Board in so far as the same are applicable. You shall be entitled to 30/21 days annual leave to be taken by arrangement with your Head of Department and the written approval of the Director of Administration on the recommendation of your Head of Department. Unless you are dismissed and provided you are not on any bond to serve the Hospital for a stipulated period you may terminate your employment by a month’s notice in writing or with the consent in writing of your Head of Department by the payment of one month’s salary in lieu of notice. The Board may also terminate your appointment by giving you one month’s notice or pay one month’s salary in lieu of notice. You will be subject in all respects to all the conditions of service from time to time by the Board of Management. If you are prepared to accept this offer, I shall be glad if you do so in writing and at the same time indicate the date upon which you would be prepares to assume duty. This offer of appointment will lapse if not taken within one month. Yours faithfully (Signed) Elder (DR.) Archibong E. Archibong Director of Administration The claimant tendered no other document is furtherance of the nature of her appointment neither did she tender the rules and regulation of the Board if any. The claimant had pleaded that her appointment was governed by the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Cap 463 LFN 2004 In the case of JOSEPH & ORS v. KWARA STATE POLYTECHNIC & ORS (2013) LPELR-21398(CA) it was held following the Supreme Court in the case of FAKUADE V. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47 at 63; (1993) 6 SCNJ 35 at 44. that “the fact that the Respondent is the creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavor. A similar issue came up before the Court of Appeal in ” P. O. U. IYASE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (2000) 2 NWLR (Pt.643), pg. 47― Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particularly evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure. If on the other hand, the contract of service is determinable by the agreement between the parties, such contract cannot be said to have statutory flavour. “Per IBIYEYE, J.C.A. (P. 18, paras. B-F) In IAYSE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (Supra), the Court of Appeal considered the import of the letter of appointment and held “the court must confine itself to the terms of contract of service between the parties which provide for their rights and obligations…… . it therefore follows that before the contractual relationship between the appellant and the respondent with regard to removal of the former by the latter as in this appeal, can enjoy the special status Section 9 of the Cap 463 must be expressly incorporated into either exhibit A or B. it is such incorporation that gives rise to the special treatment by way of statutory or legal flavour in the event of the master deciding unilaterally to terminate the appointment of the servant― (Exhibit A and B in that case referred to the letter of Appointment and conditions of service),― Looking at Exhibit C2 in the instant case I find that nowhere does the letter indicate that the claimant’s appointment is governed or made pursuant to a statute. In addition in IYASE CASE (Supra) the Court of Appeal did hold that, “…..if on the other hand the contract of service is determinable by agreement between the parties, such contract cannot be said to have statutory flavour―. From the evidence before the court and Exhibit C2, I find that the relationship of the claimant with the defendant is a contract of employer/ employee similar to what is commonly referred to as master and servant, created by. Conditioned by and subject to the express provision of the Exhibit C2 and is one relationship which is completely devoid of statutory flavour. Having determined the status of the claimant the next thing on board is to look at the propriety of her termination, By Exhibit C2, the claimants appointment was made by the Board and her termination is stated therein to be effected by the Board of management. Oputa JSC in the case of C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR(1985) LPELR-2565(SC) held that “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. …..― “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. Now the claimant has maintained that at the time of her termination there was no Board in occupation, the last one having been dissolved in May 2015. The defendants have not controverted this fact but submitted that assertion rather they acceded contending that in the absence of a Board the Minister of Health steps in as the Board, in support of this contention the defendants on the one hand tendered Exhibit D5, a newspaper cutting duly certified highlighting the story titled “Buhari dissolves Federal Boards, sacks NIMASA D-G― of July 17th 2015 with asterixed portions; ‘Until the Boards are reinstated Chief executives are to refer all maters requiring their Boards attention to the President through their Permanent Secretary of their supervising Ministries’’ and on the other hand the defendant asked the court to rely on NTEWO V UCTH & ANOR CA/C/52/2009 delivered on 21st March 2013 with regard to actions taken where there were no Boards. The problems with both these contentions are as follows: with regard to the newspaper article, as argued by the claimant I find that the defendants present the Law or enabling Act the donates power to the Minister of Health to step in and act as Board in the absence of a Board, neither have they put forward any evidence that this matter was ever referred to the Permanent Secretary for the President nor is there before this court any evidence that the action they, the defendants, subsequently took, in terminating the claimant was actually undertaken on the advice or directives of the President. And with regard to NTEWO’s case Supra, in that matter the Court of first instant and the Court of Appeal both placed reliance on a circular of Government with respect to the dismissal of the claimant and no such circular was presented to the Court in the instant case inter alia. The Learned Author in his book Sasegbon’s Laws of Nigeria, An Encyclopaedia of Nigerian Law and Practice, First Edition, Volume 16 at Paragraph 233- Determination of Master and Servant Relationship. Stated that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void―. I find that the mode of termination of the claimant was not in accordance with Exhibit C2. The claimant was not removed by the Board the person empowered to remove her and as such her termination was wrongful. The letter of termination ; Exhibit C3 is itself reproduced below : UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA Comfort Edet u.f.s. Deputy Director (Finance & Accounts) Accounts Department U.C.T.H. Calabar Sir TERMINATION OF APPOINTMENT I am directed to refer to your contract of engagement contained in clause 7 of your appointment letter and accordingly terminate your appointment with the University of Calabar Teaching Hospital with immediate effect since your services are no longer required. You will however be paid one month’s salary in lieu of notice. You are therefore to hand over all Hospital property and or documents including your staff Identity Card to your Head of Department. By a copy of this letter, the DDF/A has been directed to stop your salary / allowances with immediate effect. (Signed) Ededet Eyoma Deputy Director (Human Resources) For Director In addition to this letter being issued to the claimant without the due authorization of either the Board or the “Minister― or the Presidency through the Permanent Secretary hence making Exhibit C3 a letter issued without due authority, both parties presented evidence of disciplinary action taken by the defendants on the claimant prior to the letter of termination. From the evidence before the court and the disciplinary processes themselves it becomes apparent that DW issued the queries to the claimant, the reports of the panel that undertook the audit review recommended that the claimant among others be surcharged while the 2nd panel recommended her dismissal in February 2014. These panels reported to DW, the question arises why any action wasn’t taken between February 2014 and August 2015 when there was actually a Board in place. The case of the defendant was that the President dissolved Federal Boards on or around July 2015 relying on Exhibit D5, now Exhibit D2, the Memo directing the implementation of the 2nd panel’s report was issued on 15th August 2015 (was certified by DW) following a therein stated Meeting of Management which was stated to have held on the 10th August 2015, the minutes of the said meeting were not presented to court and no explanation was given why the matter was suddenly resurrected barely a month after the publication of the dissolution of Boards. The defendants have not put before the court any evidence which authorizes DW to terminate the claimant, there is no evidence that the report of the 2nd Panel, ‘The Panel to Investigate a Case of Financial Impropriety against the Under-listed Staff of Accounts Department UCTH’ was ever submitted to the Board, Permanent Secretary not to mention the Presidency. The defendants tendered Exhibit D3 and D4 reports of panels; the former D3 dated February 2014 was the report of Financial impropriety against the under-listed staff of the Accounts department, a report made by a 5 man investigation panel who inter alia reviewed Exhibit D4, which was dated 24th June 2013 and is the Audit. Looking at these two documents I find that D4 submitted a summary and analysis of the Auditor investigation and consisted mainly of tabulations of routine inspections of various sections of the hospital, while Exhibit D3 was made up primarily of excerpts of interviews held and errant copies of receipts obtained from patients where available. In this court, when dealing with excerpts, summaries and annexes of documents frontloaded or tendered by the parties without showing the Court the fuller documents from which they were extracted. Such excerpts were discountenanced. This Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court, to enable the Court ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, In like manner, Exhibits D3 and D4 in the instant case, in being Summaries, analyses and excerpts made from sources which were no tendered before this court I find Exhibits D3 and Exhibit D 4 would have no evidential value and so would be discountenanced for purposes of this judgment. See also the unreported case of SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014 Having said that the defendant I find did not rely on the disciplinary procedure to terminate the claimant rather they relied on Exhibit C2, the letter of appointment to terminate the claimant in line with paragraph 7 therein. The proper thing for the defendant to do in a situation where the Board approval is required to take any action and no Board is in place, would be to wait until the Board is reconstituted. See the case SUIT NO. NICN/LA/590/2012 ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY delivered October 24, 2016 This court held that “Rather than await the composition of the Board, the Chairman/Chief Executive in breach of Regulation 38 reinstated the claimant. The court went on to hold that “ that The claimant was then erroneously recalled from interdiction and reinstated ……The defendant being a statutory body, it is imperative for it to comply fully with its Regulations on discipline― the court held that as the claimant’s appointment being one with statutory flavour, the failure of the defendant Agency to comply with Regulation 38 and 121 rendered his recall from interdiction and reinstatement null and void―. By law in a Master and Servant relationship, even when an employment is wrongfully terminated, and even if the termination is wrongful the employment in question remains determined, the termination still stands, as the law does not allow a servant to be forced on an unwilling master, the only remedy open to the wrongfully terminated employee ordinanrily would be damages. See Sasegbon’s Laws of Nigeria, An Encyclopaedia of Nigerian Law and Practice, First Edition, Volume 16 at Paragraph 233- Determination of Master and Servant Relationship. Who went on to state as follows; “The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.― – per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620.― Also in the case of C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR (Supra) it was held that “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach. I find that the action undertaken by the defendants in terminating the claimant evolved outside the provisions and ambit of Exhibit C2, Nothing before the Court empowers the DW to act in the manner he did. However recent Labour Law practice has established that in situations where the termination is, in additional to being wrongful a direct result of an unwarranted untoward, ill motivated act of executive lawlessness, the court have held that one month’s salary in lieu of notice is not sufficient, See the case of SUIT NO: NICN/LA/472/2012 MR. OJUTALAYO JOHN FOLAYAN Vs. MORLAP SHIPPING COMPANY LTD delivered 4th December 2015 where this court was discourage the abuse of discretion by employers who wield high power against their employees. I find that this matter is one of such cases where the legal prescription of one month salary in lieu of notice, as damages does not satisfy the situation. The claimant is asking for N10, 000, 000, 000.00 but has not shown the court how she arrived at that sum. In the case of MR. OJUTALAYO JOHN FOLAYAN Vs. MORLAP SHIPPING COMPANY LTD (Supra) this Court considered the argument of employer highhandedness, and relying on, UMTHMB V. DAWA [2001] 16 NWLR (PT. 739) 424 CA held that every employer, including every public body, must be careful not to abdicate or abuse its powers. That employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. That in the determination of the employment of employees, they must at all times allow themselves to be guided by the rule of natural justice; and that the law does not permit employers to act arbitrarily. All of this no doubt justifies some sort of compensation for the claimant given the power of this Court to do so under section 19(d) of the NIC Act 2006. The claimant did not supply any proof of her salary to enable the court extrapolate this as a basis for calculating damages, be that as it may the provision of Section 19(d) stipulate a lump sum. Accordingly I award the sum of One Million Five Hundred Thousand Naira (N1. 500,000.00) as general damages/compensation to the claimant. The claimants had contended that where a public servant is accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. This is however not the current position of the law see the cases of OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 where “a similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 –‘The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. (2004) 12 NWLR (PT. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must first be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA POLY v. MAINA (2005) 10 NWLR (PT. 934) 487 CA reiterated and applied this principle. When it held that it is neither necessary nor is it a requirement under the Constitution that before an employer summarily dismisses his employee from service, the employee must be tried before a court of law before the defendants can discipline her. The claimants case, for the avoidance of doubt succeeds in part. Reliefs 1- 3 for a declaration that the claimants termination and was grossly irregular, callous, unlawful, null and void same not having followed due process and an order reinstating the to her appointment with all due salaries and allowances from the date of the purported termination until the date of this judgment. The position of the law is that it is only employment that have statutory flavour and has been found illegal, unlawful null and void, and it is only in respect of these type of employment that the court can hold the salaries subsisting after a wrongful termination and with due regard to this court’s finding that the claimant’s employment is not statutorily flavoured the Court can only declare that the claimants termination was wrongful. While reliefs 4 and 5 are for reimbursement of legal cost incurred by the claimant and damages for trauma and hardship following an unlawful termination. I had already dealt with the latter. As for the claim for N500,000 as cost of litigation, the claimant did not show to the Court how he came about this figure as cost. In any case, BY GUINNESS (NIG.) PLC V. NWOKE [2000] 12 NWLR (PT. 689) 135 AT 150 it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party. The Claimant merely submitted that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements. When GUINNESS NIGERIA PLC V. EMMANUEL NWOKE (SUPRA) held that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, it simply was frowning on something like this. The claimant tendered Exhibit C7, a Memorandum of Understanding indicating that the claimant and two 0thers had paid N1, 000, 000.00 to her Counsel as part payment for his legal representation for them. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)―. The Memorandum of Understanding tendered in this case does not begin to mention the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees appears speculative. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. Relief 4) accordingly fails and so is dismissed. The Court judgment therefore is this. The claimant’s termination is wrongful. The defendant shall pay to the claimant the sum of N1, 500, 000.00 (One Million Five Hundred Naira only) as damages for wrongful termination of appointment. Cost of this suit is put at N100. 000.00 (One Hundred Thousand Naira Only) This sum is to be paid within 30 days after which interest of 10% per annum will attach. This is the court’s judgment and it is hereby entered accordingly. …………………………………………. Hon. Justice E. N. N. Agbakoba Judge.
