DR. ADEOSUN OLUSEYI OLALEKAN v. MANAGEMENT BOARD, UNIVERSITY OF MAIDUGURI TEACHNG HOSPITAL (2012)

DR. ADEOSUN OLUSEYI OLALEKAN v. MANAGEMENT BOARD, UNIVERSITY OF MAIDUGURI TEACHNG HOSPITAL

(2012)LCN/5769(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of December, 2012

CA/J/37/2010

RATIO

LABOUR LAW: HOW EMPLOYMENT GOVERNED BY STATUTE IS DETERMINED

CONTRACT: WHAT FOUNDATION AN AGGRIEVED EMPLOYEE MUST FOUND HIS CASE

It is trite law that a contract of service is indeed the foundation upon which an aggrieved employee must found his case, the Court can only interpret and enforce the agreement entered into by the parties and is incapable of making any contract for them. Therefore, the court in construing the relationship of the parties to a written agreement of employment must confine itself to the plain words and meaning which are derivable from their rights and obligations thereunder. Hence, the Court will not look into any matter outside the terms stipulated and previously agreed upon by the parties to the contract, in determining the respective rights and obligations of the parties. See the cases of: (1) W.N.D.C. v. Abimbola (1966) 2 SCNLR p. 21; (2) Nigerian produce Marketing Board v. Adewunmi (1972) 11 SC. p.111 and (3) Abalogu v. S.P.D.C. Ltd. (2003) 13 NWLR (Pt. 837) p. 333, paras. B-G. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

LABOUR LAW: ON WHOM LIES THE DUTY TO PROVE THE CONDITIONS AND TERMS OF SERVICE REGULATING THE CONTRACT OF SERVICE IN QUESTION

The law is well settled and beyond peradventure that, a plaintiff whose case it is that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them has the legally bounding duty to plead and prove the conditions and terms of service regulating the contract of service in question. See the cases of (1) Amodu v. Amode (1990) 5 NWLR (Pt. 150) p.356 and (2) Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) p.379. In the case of: Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) p. 444 at p. 476, paras. D – F, Tobi, J.S.C. referred with approval to the earlier case of: Morohunfola v. Kwara State College of Technology (1990) 4 NLWR (Pt. 145) p. 506 where Uwais, J.S.C. (CJN (Rtd.) and as he then was) stated at p.516 that:
The Appellant’s cause of action was based on contract of employment. It was absolutely essential therefore for the Appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the Respondent, as defendant.

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

This is in tune with the legal position that, in civil cases, the standard required is proof by preponderance of evidence, that is, proof by putting the totality of the evidence adduced by both parties on an imaginary scale. Firstly, the evidence of the plaintiff and his witnesses on one side of the scale and secondly, that of the defendant and his witnesses on the other side. Then both of them are weighed together to find out which side weighs heavier or preponderates. See the case of: (1) Odofin v. Mogaji (1978) 4 SC p. 91 and (2) Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt.73) p. 746.To put it in other words, the all important position of law is that, he who asserts a point must essentially and absolutely prove same, for the burden of proving a particular fact is on the party who seeks to rely on it. See also the cases of: (1) Imana v. Robinson (1979) 3 – 4 SC p.1 (2) George v. U.B.A. (1972) 8 – 9 SC p.264; (3) Elias v. Omo-Bare (1982) 5 SC p.25; (4) Ayanru v. Mandillas Ltd. (2007) 10 NWLR (pt. 1043) p.462 and (5) Jallo Ltd. v. Owoniboys Tech. Serv. Ltd. (1998) 4 NWLR (Pt. 391) p.534. Such a party must discharge the onus by proving through cogent evidence which will convince the court of the probability of his case on the point in issue. See Section 135 of the Evidence Act. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CONTRACT: WHETHER PARTIES ARE BOUND BY THE TERMS CONTAINED IN DOCUMENTS CONSTITUTING THE CONTRACT

The law is trite that, parties to a written contract are bound by the terms contained in the document(s) which constituted the contract. Once the terms have been ascertained, the courts must enforce and give them the necessary effect. See the cases of: (1) Baba v. N.C.A.T.C (1991) 5 NWIR (pt. 192) p.388 and (2) Ladipo v. Chevron (Nig.) Ltd. (2005) NWLR (pt. 907) p.277. It is equally the law that once a contract of service makes provisions for a procedure for the determination of the contract, whether or not a determination of an appointment pursuant to the contract had rightly been carried out would depend on what the contract itself provided. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

Between

DR. ADEOSUN OLUSEYI OLALEKAN Appellant(s)

AND

MANAGEMENT BOARD, UNIVERSITY
OF MAIDUGURI TEACHING HOSPITAL Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High court, sitting at Maiduguri, delivered by Hon. Justice Adamu Hobon on the 9th day of December, 2009.

The action that gave rise to the present appeal was brought “vide” a writ of summons and statement of claim dated and filed on the 16th day of May, 2007, at the trial Court by the Appellant as the Plaintiff against the Respondent as the defendant. See pages 5 to 15 of the record of appeal. In the said statement of claim, the Appellant made eight (8) claims against the Respondent as follows:

1) An order declaring the purported letter of termination ref. No.SP/CON/626/Vol.1/48 Dated 31st October, 2003 served on the plaintiff by the defendant, its servants, and/or agents unconstitutional, null and void of no effect and unlawful by reason of gross irregularity, lack of reasonable cause, denial of natural justice and non-compliance with the enabling statutes establishing the defendant, and breach of section 36 of the constitution of the Federal Republic of Nigeria, 1999.

2) An order of this Honourable court quashing the purported letter of termination REF. No.SP/CON626/VOL.1/48 dated 31st October, 2003.

3) A declaration that the plaintiff’s appointment with the defendant is not a temporary appointment but permanent and pensionable.

4) An order reinstating the plaintiff to the employment of the defendant and upgrading him to the post of a consultant surgeon in dental/maxillofacial surgery having passed the requisite examination, payment of arrears of salary, all entitlements, rights and privileges attached to that office from the month of November, 2003, including his right to continue in employment at the University of Maiduguri Teaching Hospital until he attains the age of retirement as prescribed by law.

5) A declaration that the plaintiff is entitled to remain and continue in employment at the University of Maiduguri Teaching Hospital, until he attains the retirement age as prescribed by law.

6) General damages for wrongful termination of appointment in the sum of one Million Naira (1,000,000.00) only.

7) An order restraining the defendant from further interfering with the plaintiff’s lawful execution of his duties.

8) 10% interest per annum on the judgment sum until final payment of same to the plaintiff.

In reaction to the Appellant’s claims, the Respondent filed its statement of defence, which is at pages 80 to 84 of the record of appeal. It is dated the 28th day of May, 2007 and was filed on the 12th day of June, 2007. In paragraph 26 of the said statement of defence, the Respondent raised a preliminary objection to the Appellant’s action against it that, the Appellant failed to fulfill a condition precedent to the said action. That is, according to the Respondent, the Appellant failed to avail himself of all internal procedure for seeking redress, inclusive of the filing of a petition to the Respondent as required by the regulation governing the University of Maiduguri Teaching Hospital Residency Programme pertaining to the termination of his residency training before commencing the action, the subject matter of this appeal.

The said point of objection to the Appellant’s action was argued in the Respondent’s written address, see page 177 of the record of appeal. However, apart from the fact that the Appellant never reacted to this issue, the learned trial Judge also failed to advert to it and did not find one way or another in respect thereof.

At the hearing before the trial court, the Appellant testified in person but called no additional witness and tendered exhibits in support of his claims. The Respondent also called one witness and tendered exhibits in its defence. Learned Counsel to both parties addressed the Court in writing in support of their respective positions. The learned trial Judge after considering the claims of the Appellant and the Respondent’s opposition to same came to the conclusion that the Appellant was not entitled to any of the reliefs sought by him and proceeded to dismiss all the claims.
The Appellant was not satisfied with the judgment of the trial court, hence he filed this appeal against it to this Court “vide” his notice and grounds of appeal containing six grounds of appeal. The notice of appeal dated 21st of December, 2009 was filed on 13th January, 2010. The said grounds of appeal with their particulars are at pages 282 to 289 of the record of appeal.
By the Appellant’s brief of argument filed with the leave of this Court, on the 25th day of June, 2012, the Appellant’s learned Counsel, Mr. Nankham Ayuba Dammo formulated four issues for the determination of this appeal. The four issues read thus:

i) Whether the lower court was right when it held that the Appellant’s employment had no statutory flavor?

ii) Whether the lower court was right when it placed the burden of proving the fact that the Appellant was employed as a resident doctor on the Appellant?

iii) Whether the lower court was right when it held that the issue of permanent and pensionable appointment was not in issue in this case?

iv) Whether upon the pleadings and evidence adduced, the lower Court was right when it dismissed the Appellant’s claim?

On the other part, the Respondent’s learned Counsel Dr. B. A. Bukar on the 4th day of July, 2012, filed the Respondent’s brief of argument. In it, three issues were identified for determination. These are:

1. Whether the appellant’s appointment was a permanent and pensionable one regulated by Cap, U15?

2. Whether the learned trial Judge was right in shifting the burden of proof on the appellant to establish that he was not a resident doctor and was not employed as such?

3. Whether the appellant has proved wrongful termination of his appointment so as to warrant granting the declarations sought?

In reaction to the Respondent’s brief of argument, the Appellant’s Learned Counsel filed an Appellant’s reply brief of argument on the 18th day of July, 2012.
At the hearing of this appeal by this court on the 26th day of September, 2012, the learned counsel for the Appellant, identified, adopted and relied on both the Appellant’s brief and reply brief of argument in urging this court to allow this appeal, set aside the judgment of the trial Court and in its place, enter judgment for and grant all the reliefs claimed by the Appellant against the Respondent.

The Learned Counsel for the Respondent, Dr. B. A. Bukar identified the Respondent’s brief of argument and urged this Court to dismiss this appeal and uphold the judgment of the trial Court, dismissing the entire claims of the Appellant.
Before proceeding to deal with the issues arising for determination in this appeal, I shall first advert to the issue raised in the preliminary objection in paragraph 26 of the Respondent’s statement of defence, this is at pages 83 to 84 of the record of appeal. In respect therefore, the Respondent’s learned counsel stated that the Appellant failed to fulfill the condition precedent to the filling of his action. Namely that, the Appellant did not avail himself of all internal procedure for seeking redress, as required by the Regulations governing the University of Maiduguri Teaching Hospital Residency Programme, pertaining to the termination of his residency training. As earlier on stated by me in this judgment, the said point of objection ought to have been taken and determined first and foremost before proceeding to the determination of the substantive suit. This is because the said point touches on the jurisdiction of the trial Court to adjudicate upon the Appellant’s suit filed before it.
By the provisions of paragraph 1(b) of the University of Maiduguri Teaching Hospital Revised Handbook of Information on Residency Training Programme, 1997 (hereinafter referred to as the Handbook) that is, exhibit H at pages 258 to 278, particular at p. 265, a resident doctor shall not go to court for the protection of his constitutional rights arising from disciplinary measures, disputes, disagreements or any such matter appertaining thereto until he/she has exhausted all internal procedure for redress inclusive of a petition to the University of Maiduguri Teaching Hospital Board of Management. It was the contention in favour of the Respondent that the Appellant ought but failed to avail himself of the internal redress mechanism, which is a condition precedent to the commencement of the Appellant’s suit before the trial Court. According to the Respondent, the Appellant’s failure to comply with the provisions of paragraph 1(b) of the provisions of the said Handbook rendered the suit incompetent and that the trial Court ought to dismiss the Appellant’s suit for that reason.
Although the learned trial Judge did not consider it necessary to resolve this ground of objection, it should be noted that, the law is trite that such a provision requiring an aggrieved party in the shoes of the Appellant to avail himself/herself of the steps contained in paragraph 1(b) of the Handbook before going to court to ventilate his grievance, is just a mere procedural requirement for invoking the jurisdiction of the court. To put it in other words, the said procedure is quite different from the authority or competence of the Court to decide a matter which on the face of is within the jurisdiction of the Court. The purpose of a pre-action requirement as contained in paragraph 1(b) of the Handbook is to enable a Compliant and the Respondent decide what to do by way of negotiations in the event of a compliant. It is not designed to abrogate the right of the Complainant to approach the Court or defeat his cause of action. See the cases of: (1) Barclays Bank Ltd. v. Central Bank of Nigeria (1976) 6 SC p.175; (2) Mobil Producing Nigeria Unltd. v. Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) p.1 and (3) Eti-Osa Local Govt . v. Jegede (2007) 10 NWLR (Pt. 1043) p.537

I have perused the four issues formulated by the Appellant’s counsel for the determination of this appeal, as well the three issues identified for determination by the Respondent’s counsel. It is settled both in law and practice that issues for determination should not be proliferated. This is because the purpose of issues for determination is to enable parties narrow down issues on grounds of appeal filed, in the interest of accuracy, clarity and brevity. See the cases of: (1) Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) p.551 at pages 567 – 568 and (2) Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt. 404) p.658 at p.672, para. E. I am of the view and I hold that in the Appellant’s brief of argument, issues (ii) and (iii) formulated by the Appellant’s the counsel can be subsumed in issue (i) which issue (i) is covered by the issue numbers one (1) and two (2), formulated in the Respondent’s brief of argument, while the Appellant’s issue (iv) is equally covered by Respondent’s issue number three (3). I shall therefore determine this appeal a long those classifications.
Furthermore, I wish to observe that, but for the question relating to the competence or otherwise of the issues formulated by the Respondent, the submissions contained in the Appellant’s reply brief of argument are a re-argument of the issues already canvassed in the Appellant’s main brief of argument, the said submissions are therefore discountenanced by me. Regarding the argument of the Appellant’s counsel that the Respondent’s counsel failed to tie the issues formulated by him to the grounds of appeal and hence the incompetence of the issues, there is no doubt in my mind that the said issues formulated by the Respondent are a response to the issues formulated by the Appellant which have been properly tied to the relevant grounds of appeal. To put this in other words, although not expressly stated, in responding to the appeal, the Respondent’s counsel can correctly be said to have adopted the issues formulated by the Appellant’s counsel, which are properly tied to the grounds of appeal.
I will therefore now proceed to consider seriatim, issues one and two as amended by me as I consider them sufficient in resolving the matters at stake in this appeal.

ISSUE ONE
Whether the trial court was right when it held that the Appellant’s employment had no statutory flavor?

The learned counsel for the Appellant submitted that the Appellant was employed by the Respondent “vide” exhibit F, his letter of appointment. That on a perusal and appreciation of the terms and conditions as contained in exhibit F, the Appellant’s letter of appointment and the provisions of Sections 5(5) and 9 of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap U.15, Volume 15, Laws of the Federation of Nigeria, 2004, (hereinafter referred to as the Act), it is clear and without any iota of doubt that the Appellant’s employment is covered and governed by a statute, and therefore has statutory flavor. Hence, with the combined reading of exhibit F and Sections 5(5) and 9 of the Act, the work relationship of the Respondent and Appellant is not an ordinary master and servant one and this being the case, the same can only be determined in the manner prescribed by the relevant provisions of the said Act, which is a statute. In this regard, he relied on court’s decisions in the cases of: (1) Ogieva v. Igbinedion (2004) 14 NWLR (Pt. 894) p. 467 at pgs. 487 – 488; (2) Olufeagba v. Abdulraheem (2009) 18 NWLR (Pt. 1173) p. 384 at pg. 462; (3) U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) p.376 at pgs. 405 – 406 and 410 and (4) P.H.C.N. v. Alani (2010) 5 NWLR (pt. 1186) p. 65 at pgs. 79 – 80.

The learned Counsel for the Appellant restated the legal principle that, the burden of proof of the existence of a fact rests squarely on the party who alleges that fact. That equally, the burden of proving the existence of the fact lies on the party against whom the judgment of a court would be given, where such evidence is not produced by either side, in line with the provisions of Sections 135, 136 and 137 of the Evidence Act. He also relied in this wise on the cases of: (1) Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) p.612 at pgs. 653 – 654 and 660; (2) Osawaru v. Ezeiruka (1978) 6 & 7 SC p. 135; (3) Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) p. 339, and (4) Udechukwu v. Ngene (1992) 8 NWLR (pt. 261) p. 565 at pgs. 585-586.

The Learned counsel further contended that, the Respondent having alleged that the Appellant was not employed as a permanent and pensionable staff but as a doctor on residency programme, the Respondent has the duty of placing before the trial court credible evidence in proof of that assertion. To put this in other words, the burden of proving that the Appellant was indeed employed as a resident doctor lies squarely on the Respondent who alleged that fact and not the Appellant. That in the instant matter, the Respondent failed to adduce any credible evidence in proof of its assertion that the Appellant was employed as a resident doctor. That the letter purporting to appoint the Appellant as a resident doctor was not produced and placed in evidence by the Respondent at the trial court. Whereas, on the other part, the Appellant adduced credible evidence before the trial court regarding the terms and conditions of his contract of employment which are contained in exhibit F and having done so, the Appellant has discharged the duty on him to prove the terms and conditions of his employment. Outside of exhibit F, there was no other letter of appointment or terms and conditions of employment placed before the trial court in proof of the assertion made by the Respondent as to the status of the Appellant’s employment. It is therefore not the duty of the Appellant to establish his alleged residency appointment, because he did not aver or allege that fact, rather the Respondent did. On this position, he relied further on the cases of: (1) Udechukwu v. Ngene (supra) at pgs. 585 – 586 and (2) Duru v. Nwosu (1989) 4 NWLR (pt. 113) p.24 at pg. 52.
Proceeding further, the Appellant’s learned counsel submitted that going by the pleadings and evidence adduced by the parties before the trial Court, the issue of the nature of the appointment of the Appellant that is, whether it was a permanent and pensionable or residency appointment was made an issue in this matter. For, it is trite law that, issues are joined when parties close pleadings without the defendant admitting the plaintiffs claim. On this stance, he relied on the cases of: (1) Buhari v. Obasanjo (2005) 2 NWLR (pt. 910) p. 241 and (2) Oshodi v. Eyifunmi (2000) 7 SC (pt. 11) p. 145.
Replying on the other part, the Respondent’s learned counsel submitted that the Appellant’s appointment with the Respondent was not a permanent and pensionable one and hence, not regulated by the Act. According to him, the appointment was one based on contract of employment determinable by agreement of the parties. That although the Respondent is a statutory body, it is not every contract involving a statutory body that enjoys the status of contract with statutory flavour. On this argument, he relied on the cases of: (1) I.H.A.B.U.H.M.B. v. ANYIP (2011) 12 NWLR (Pt. 1260) p.1 at pgs. 19 – 20 paras. G – A and; (2) AZENABOR v. BAYERO UNIVERSITY KANO (2009) 17 NWLR (pt. 1169) p.96 at pgs. 108 – 109, paras. H.F.
The learned counsel for the Respondent contended that, the Appellant was appointed as a senior House officer (SHO) in the Department of Dental surgery “vide” exhibit F, which by inference incorporates Appendix II to exhibit H. The said Appendix II classifies Senior House Officers, Registrars, and Senior Registrars II & I as resident doctors. That the Appellant had at various times between years 1989 and 2003, occupied these residency posts thereby placing him under the category of a resident doctor in the employment of the Respondent.
According to the Respondent’s learned counsel, exhibits F and H among others reveal that, it was not the intention of the parties to bring the Appellant’s employment within the purview of the Act. That the relationship between the parties was not regulated by statute as claimed by the Appellant but that of master and servant. He rested his contention on the cases of: (1) FAKUADE v. OAUTH (1993) 5 NWLR (Pt.291) p. 47 at pg. 63, paras. A-B and (2) UMTHMB v. DAWA (2001) 16 NWLR (Pt. 424) p. at pg. 439, para. H.

The Learned Counsel for the Respondent restated the legal principle that, in civil cases, the burden of proof preponderates according to the scale of evidence, that is, while the burden of proof in the sense of establishing asserted issues in a case lies on a plaintiff, the rebuttal of issues arising in the course of proceedings shifts from the plaintiff to the defendant and vice-versa as the case progresses. He relied on the case of: F.M.F. Ltd. v. EKPO (2004) 2 NWLR (pt. 856) p. 100 at pgs 122 – 123, paras. E-B. He contented that, the Appellant having admitted that he underwent trainings which are regulated by exhibit H, his appointment was a residency one by virtue of the said Appendix II to the said exhibit H. Hence, there was no need to prove the fact of the Appellant’s residency employment anymore and consequently, his claim of a permanent and pensionable appointment becomes baseless. What is more, according to the learned counsel, the various promotions enjoyed by the Appellant from his initial Senior House Officer (SHO) position, which is the starting point in the Post-Graduate Residency Training Programme, to his last position of Senior Registrar I, are all residency posts.
It was further contended by the Respondent’s learned counsel that, the uncontroverted evidence of DW1 regarding the Appellant’s status clearly showed that the Appellant was on a residency appointment which became terminated and was brought to an end after his final and Part II of his training in line with exhibit H. What is more, the Appellant having taken benefit under exhibit A, namely, by accepting one month’s salary in lieu of notice after the termination of his residency appointment on the 31st October, 2003, he cannot be heard to deny the fact that he was a Resident Doctor.

Now in Nigeria, the law that governs employment, that is the relationship between an employer and an employee, is basically a law received under that of contract of service which is an example of contracts, a law received under English Common Law, hence, the general law of contract is applicable thereto. To put it in other words, the Nigerian law of employment consists of received English Common Law, the doctrines of equity, applicable Nigerian Legislations and Court decisions. Generally, there are three categories of employments, viz: (a) master and servant; (b) a servant who holds an office at the pleasure of the master and (c) employment that is governed by statute. See the cases of: (1) Ridge v. Baldwin (1964) A.C. p.40; (2) Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) p. 599 and (3) Olarewaju v. Afribank (Nig.) Plc (2001) 13 NWLR (pt. 731) p.691.
An employment of master and servant is governed by the terms under which the parties agreed to be master and servant. Therefore, the procedures for employment and discipline which include termination and or dismissal must be in the form agreed to by the parties. Any other form of procedure will connote wrongful but not null and void termination or dismissal as the case may be. The law is settled that the only remedy for wrongful dismissal or termination is a claim in damages. In the case of Olarewaju v. Afribank (Nig.) Plc, (supra) at p.705, paras. D – G, Katsina-Alu, J.S.C. (CJN (Rtd.) and as he then was) held as follows:
The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. So as Lord Reid said in Ridge v. Baldwin (supra):
So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract.

What this means is this. In this class of cases an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice.

However, in an employment governed by statute, that is, legislation, the procedures for employment and discipline which include dismissal or termination of an employee are as clearly prescribed by that statute or legislation. Employment with statutory backing must therefore be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant provisions of the statute is null, void and of no effect. See the cases of: (1) U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (pt. 380) p.647 at p.664 and (2) Ibama v. S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (pt. 954) p.364.
It is trite law that a contract of service is indeed the foundation upon which an aggrieved employee must found his case, the Court can only interpret and enforce the agreement entered into by the parties and is incapable of making any contract for them. Therefore, the court in construing the relationship of the parties to a written agreement of employment must confine itself to the plain words and meaning which are derivable from their rights and obligations thereunder. Hence, the Court will not look into any matter outside the terms stipulated and previously agreed upon by the parties to the contract, in determining the respective rights and obligations of the parties. See the cases of: (1) W.N.D.C. v. Abimbola (1966) 2 SCNLR p. 21; (2) Nigerian produce Marketing Board v. Adewunmi (1972) 11 SC. p.111 and (3) Abalogu v. S.P.D.C. Ltd. (2003) 13 NWLR (Pt. 837) p. 333, paras. B-G.
The law is well settled and beyond peradventure that, a plaintiff whose case it is that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them has the legally bounding duty to plead and prove the conditions and terms of service regulating the contract of service in question. See the cases of (1) Amodu v. Amode (1990) 5 NWLR (Pt. 150) p.356 and (2) Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) p.379. In the case of: Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) p. 444 at p. 476, paras. D – F, Tobi, J.S.C. referred with approval to the earlier case of: Morohunfola v. Kwara State College of Technology (1990) 4 NLWR (Pt. 145) p. 506 where Uwais, J.S.C. (CJN (Rtd.) and as he then was) stated at p.516 that:
The Appellant’s cause of action was based on contract of employment. It was absolutely essential therefore for the Appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the Respondent, as defendant.

The main and real dispute between the parties herein, first and foremost is, whether the contract of service between them is one with a statutory flavor or of master and servant. It is the assertion of the Appellant that, the contract of service between him and the Respondent is that with statutory flavor. The onus is therefore on him and not the Respondent to aver in his pleading and prove the document(s) which contain(s) the terms of his employment. This is in tune with the legal position that, in civil cases, the standard required is proof by preponderance of evidence, that is, proof by putting the totality of the evidence adduced by both parties on an imaginary scale. Firstly, the evidence of the plaintiff and his witnesses on one side of the scale and secondly, that of the defendant and his witnesses on the other side. Then both of them are weighed together to find out which side weighs heavier or preponderates. See the case of: (1) Odofin v. Mogaji (1978) 4 SC p. 91 and (2) Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt.73) p. 746.To put it in other words, the all important position of law is that, he who asserts a point must essentially and absolutely prove same, for the burden of proving a particular fact is on the party who seeks to rely on it. See also the cases of: (1) Imana v. Robinson (1979) 3 – 4 SC p.1 (2) George v. U.B.A. (1972) 8 – 9 SC p.264; (3) Elias v. Omo-Bare (1982) 5 SC p.25; (4) Ayanru v. Mandillas Ltd. (2007) 10 NWLR (pt. 1043) p.462 and (5) Jallo Ltd. v. Owoniboys Tech. Serv. Ltd. (1998) 4 NWLR (Pt. 391) p.534. Such a party must discharge the onus by proving through cogent evidence which will convince the court of the probability of his case on the point in issue. See Section 135 of the Evidence Act.
In the instant case, the Appellant pleaded in paragraphs 3 and 4 of his statement of claim that he was employed by the Respondent on a permanent and pensionable basis. For the avoidance of doubt and easy reference, I hereunder reproduce the said paragraphs 3 and 4 of the statement of claim as follows:

The plaintiff avers that he was offered employment on a permanent and pensionable basis with the Hospital by the defendant vide letter reference No.ADM/TH.3 dated 5th September 1989.

That further to the above paragraph and as a follow up to the appointment letter referred to above the defendant issued ASSUMPTION OF DUTY letter to the plaintiff dated 11th September 1989, clarifying and specifying the nature and status of the plaintiffs appointment. The (sic) is hereby pleaded.
In proof of that fact or claim, he adduced documentary evidence exhibit F, which is at pages 254 to 255 of the record of appeal. Exhibit F is the letter, reference No.ADM/TH3, dated 5th September, 1989, signed by the Respondent’s Director of Administration. At trial, the Appellant testified extensively in support of the said claim, at pages 121, 123, 124, 125, 127, 128, 129, 130, 144, 145, 146 and 147 of the record of appeal.
I further refer to exhibit B, the assumption of duty letter. It is dated 11th September, 1989 and signed also by the Respondent’s Director of Administration “Ex facie”, exhibit B clearly states the nature of the Appellant’s appointment as, “Permanent”. See page 249 of the record of appeal.
The Respondent, however, denied the assertions of the Appellant’s paragraphs 3 and 4 of the latter’s statement of claim and in turn asserted that the Appellant was employed by it, as a resident doctor. In the reaction of the Respondent to the said paragraphs 3 and 4 of the Appellant’s statement of claim, the Respondent in its statement of defence, averred in paragraphs 1, 2 and 3 as follows:
1. The defendant admits paragraphs 1, 2, 3, 4 of the plaintiff’s statement of claim.
2. The defendant in admitting paragraphs 3 & 4 avers that the plaintiff was employed as a house officer in the department of Dental Surgery which is a residency training post.
3. The defendant in further answer to paragraphs 3 & 4 of the plaintiff’s statement of claim avers that the plaintiff’s appointment was a probationary one which was not confirmed by the defendant.

Consequence upon the assertion of the Respondent that it employed the Appellant as a resident doctor, the onus shifts from the Appellant to it to prove the assertion. I have carefully perused the printed record and am unable to find anywhere therein where the Respondent led evidence in prove of its assertion. It is an established legal principal that facts pleaded in respect of which no evidence was led, go to no issue. In the present case, the Respondent pleaded that the Appellant’s employment is not a permanent but residency employment. However, at trial, it did not lead evidence to establish the claim. See the cases of: (1) Olanrewaju v. Afribank (Nig.) Plc (supra) at P.704, paras. E – F and (2) Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) p.407 at P.425. In Durosaro’s case, Tobi, JSC (Rtd.) had the following to say on this legal principal:

It is elementary law that where a defendant fails to give evidence at the trial, his statement of defence is deemed abandoned. This is because pleadings, by their nature and character cannot speak. They speak through witness and as long as a party refuses or fails to call witnesses to articulate their content, they remain dormant process in the court’s file. As a matter of law, they are moribund and no court of law is competent to resuscitate or revive them.
See also the cases of: Arabambi v. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt. 959) p.1 p.28, paras. E – G and (2) Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) p.427 at p.607, paras. D – E.
In my unerring opinion, the claim of the Respondent can at best be described as an assertion which is very bare and not cogent evidence. The claim was not established by concrete, credible and cogent evidence as required by law. The Appellant was hired as a permanent staff and it is immaterial that he engaged in and partook of any assignment or programme in the establishment of the Respondent during the course of his employment. What is more, despite the desperate attempts of the Respondent to wriggle out of the contract of service entered into by it with the Appellant, the so-called variation of the Appellant’s contract remained at large and was not established by credible evidence by the Respondent. Most important of all is the fact that, the Respondent did not deny the existence of the evidence among others, exhibits B and F produced by the Appellant in support of his claim that he, that is, the Appellant’s contract of employment is protected by the Act, a statute.
Therefore, my answer to the posers of both parties herein regarding whether the learned trial Judge was right to place the onus of proving the fact that the Appellant was employed by the Respondent as a resident doctor on the Appellant will be and is, in the negative. This is because as stated above in this judgment, the fact was not the assertion of the Appellant but, the Respondent’s. The learned trial Judge was also clearly in error when he held that the issue of permanent and pensionable appointment was not in issue. Rather, it was clearly in issue, indeed, that was the claim of the Appellant, which the Respondent vehemently opposed. The learned trial Judge was consequently also in greater error when he further placed the burden of proving the fact that the Appellant was employed as a resident doctor on the Appellant. Contrariwise, I hold, pursuant to the established principal of law that, in the present scenario, the asserter of the fact is the Respondent and it is legally bound to prove the assertion.
By the provisions of paragraph 8 of exhibit F, it is crystal clear that the contract of service between the parties herein is governed by the relevant provisions of the Act. Exhibit F is titled, “offer of permanent and pensionable appointment (senior staff)”, See pages 254 to 255 of the record of appeal. Paragraph 8 of Exhibit F reads as follows:
Your appointment is subject to the terms and conditions set out in this offer of appointment and the provisions of the University Teaching Hospital (Reconstitution of Boards, etc). Decree No. 10 of 1985 pertaining to appointment, removal and discipline of clinical, administrative and technical Staff and any byelaws, rules and/or regulations made thereunder and as may be reviewed from time to time, (The underlining is supplied by me for emphasis).
From the above, the parties herein are bound by the terms of the contract between them. In essence, the employment of the Appellant has a statutory flavor, that is, the Appellant’s service of employment is protected by the terms and conditions governing his employment, as laid down in the above named statute, that is, the University Teaching Hospital (Reconstitution of Boards, etc.) Act. Consequently issues (i), (ii) and (iii) formulated by the Appellant and the Respondent’s issues one (1) and two (2) are resolved in favour of the Appellant and against the Respondent.

ISSUE TWO

Whether upon the pleadings of parties and the evidence adduced, the lower Court was right in dismissing the Appellant’s claim?

This issue in essence has to do with: Whether the Appellant’s appointment was wrongly terminated? The learned counsel for the Respondent rightly submitted that, for the Appellant to succeed in his claims, he had to prove inter alia that his appointment was a permanent and pensionable one. That the Appellant must therefore establish the terms and conditions of his employment and the circumstances under which his employment can be terminated. I agree with the Respondent’s counsel in this regard, for indeed this is the correct and well established legal principle. In furtherance of this, the Appellant tendered in evidence, exhibit F. By paragraph 8 of exhibit F, the statute governing the contract of service between the Appellant and the Respondent is, the Act. Sections 5 (5) and 9 of the Act, vest the Respondent with the power to employ and discipline its staff, including the Appellant.
For proper understanding and easy reference, the provisions of Sections 5 and 9 of the Act are hereunder reproduced as follows:

5. Appointment of Chief Medical Director, Director of Administration and other staff

(1) There shall be for each hospital a Chief Medical Director who shall be appointed by the President on such terms and conditions as may be specified in his letter of appointment or as may be determined from time to time by the Federal Government.

(2) The Chief Medical Director shall-
(a) be a person who is medically qualified and registered as such for a period of not less than twelve years, and has had considerable administrative experience in matters of health and holds a post-graduate qualification obtained not less than five years prior to the appointment as Chief Medical Director; and
(b) be charged with the responsibility for the execution of the policies and matters affecting the day-to-day management of the affairs of the Hospital.

(3) There shall be for each hospital a Director of Administration who shall
(a) be appointed by the Board and shall by virtue of that office also be the Secretary to the Board.
(b) be responsible to the chief Medical Director for the effective functioning of all the administrative divisions of the hospital.
(c) conduct the correspondence of the Board and keep the records of the hospital; and
(d) perform such other functions as the Board or the Chief Medical Director, as the case may be, may from time to time assign to him.

(4) There shall be for each hospital, a chairman of the Medical Advisory Committee who shall be appointed by the Board and responsible to the Chief Medical Director for all the clinical and training activities of the hospital.

(5) Subject to this Act, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointments), advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital; and any such appointment shall be made having due regard to any personnel establishment approved for the hospital.

(6) Notwithstanding any provision of this Act to the contrary, the Board may, from time to time, appoint consultants outside the University to perform such medical duties as the Board or the Chief Medical Director may assign to such consultants.

9. Removal and discipline of clinical, administrative and technical staff:
(1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the hospital, other than the Chief Medical Director, should be removed from his office or employment, the Board shall require the secretary to:
(a) give notice of those reasons to the person in question:
(b) afford him an opportunity of making representations in person on the matter to the Board; and
(c) If the person in question so requests within a period of one month beginning with the date of the notice, make arrangements.
(i) for a committee to investigate the matter and report on it to the board; and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.
and if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board.
(2)The Chief Medical Director may, in a case of misconduct by a member of the staff which in the opinion of the Chief Medical Director is prejudicial to the interest of the hospital, suspend any such member and any such suspension shall forthwith be reported to the Board.
(3) For good cause, any member of the staff may be suspended from his duties or his appointment may be terminated or he may be dismissed by the Board; and for the purposes of this section “good cause” means-
(a) a conviction for any offence which the Board considers to be such as to render the person concerned unfit for discharge of the functions of his office; or
(b) any physical or mental incapacity which the Board, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or
(c) conduct of a scandalous or other disgraceful nature which the Board considers to be such as to render the person concerned unfit to continue to hold his office; or
(d) conduct which the Board considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.
(4) Any person suspended shall, subject to subsections (2) and (3) of this section be on half pay and the Board shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to
(a) whether to continue such person’s suspension and if so, on what terms (including the proportion of his emoluments to be paid to him); or
(b) whether to reinstate such person, in which case, the Board shall restore his full emoluments to him with effect from the date of suspension; or
(c ) whether to terminate the appointment of the person concerned, in which case, such person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or
(d) whether to take such lesser disciplinary action against such person (including the restoration of his emoluments that might have been withheld), as the Board may determine,
and in any case where the Board, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Board shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.
(5) It shall be the duty of the person by whom a letter of removal is signed in pursuance of subsection (1) of this section to use his best endeavours to cause a copy of the letter to be served as soon as reasonably practicable on the person to whom it relates.
(6) Nothing in the foregoing provisions of this section shall prevent the Board from making such regulations not inconsistent with the provisions of this Act for the discipline of students and all other categories of employees of the hospital as the Board may prescribe.
(7) Regulations made under subsection (6) above need not be published in the Federal Gazette but the Board shall bring them to the notice of all affected persons in such manner as it may from time to time determine.
(The underlining is supplied by me for emphasis).

The parties are “ad idem” on the fact that the Respondent is a body set up by statute. However, the bone of contention is the provisions governing the contract of service between them. The Respondent insisted that it employed the Appellant not as a permanent staff but as a resident doctor, whose appointment can be terminated at the end of the residency programme. Contrariwise, the Appellant asserted that he was appointed as a permanent staff, hence, the Respondent can only terminate his appointment in accordance with the express provisions of the statute regulating his employment.
The law is trite that, parties to a written contract are bound by the terms contained in the document(s) which constituted the contract. Once the terms have been ascertained, the courts must enforce and give them the necessary effect. See the cases of: (1) Baba v. N.C.A.T.C (1991) 5 NWIR (pt. 192) p.388 and (2) Ladipo v. Chevron (Nig.) Ltd. (2005) NWLR (pt. 907) p.277. It is equally the law that once a contract of service makes provisions for a procedure for the determination of the contract, whether or not a determination of an appointment pursuant to the contract had rightly been carried out would depend on what the contract itself provided.
In the instant matter, the Appellant’s contract of employment is governed by exhibit F, his letter of appointment and the Act which established the Respondent. Despite paragraph 7 of exhibit F which states that the appointment under consideration may be terminated by either party giving the other three months’ notice in writing or one month’s salary in lieu of notice, the contract must be determined by the relevant provisions of the Act, which is the principal law governing the contract of service- See paragraph 8 of exhibit F. I. have already reproduced paragraph 8 of exhibit F above in this judgment.
By the above reproduced provisions of the Act, the Respondent cannot act except within and under the powers conferred on it by the said statute. For any action taken by it outside the powers conferred by the statute on it will be “ultra vires,” null and void. Section 9 of the Act especially in its subsection (1) is the relevant provision on the termination of employment “inter alia” of clinical staff. The trial Judge was therefore wrong to have held that the contract of service between the Appellant and the Respondent herein is not regulated by the Act, contrary to the facts in support thereof.
The Appellant averred in his pleadings and led evidence to the effect that the Respondent did not properly determine his employment as specified under the Act and in line with paragraph s of exhibit F. The law is settled that, where an employee’s service is protected by statute and his employment is wrongfully terminated as in the instant case, he would be entitled to re-instatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. This is because the Appellant as stated above is in a permanent and pensionable cadre of the Respondent’s establishment. His office is not at the pleasure of the Respondent. Rather, his appointment is protected by the provisions of the Act. See the cases of: (1) C.B.N. v. Igwillo (2007) 14 NWLR (Pt. 1054) p.393; (2) Shita-Bey v. The Federal Public service commission (1981) 1 SC p.40 (3) Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) p.599 and (4) Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (pt. 732) p.116.
Again as I already stated above, the Respondent is a Federal institution created by statute. Therefore, it follows that it must carry out its activities in line with its governing laws. The laws regulating the appointment and discipline of the Appellant and the bringing to an end of the contract between him and the Respondent must be strictly complied with. The law cannot permit the Respondent to get away with the treatment meted out to the Appellant as though the Appellant’s employment is at its pleasure. The effect of the breaches of the aforementioned provisions of the Act is that, the termination of the Appellant’s employment contained in exhibit A was null, void and of no effect. The Respondent’s decision to terminate the Appellant’s appointment, treating his case as if he were its servant was made in bad faith and in utmost disregard of the cogent evidence adduced by the Appellant in proving his case. This issue is equally resolved against the Respondent and in favour of the Appellant.
It is settled law that an appellate court has the duty to set aside a perserve finding, judgment or decision of a lower court. A decision is said to be preserve where a trial court failed to properly evaluate the evidence in its record or erroneously did so or made a wrongful application of the relevant law or the conclusion reached was not supported by the evidence on record. In that scenario, an appellate court, in the interest of justice must exercise its own powers of reviewing those facts and drawing the appropriate inferences from the proved facts. See the cases of: (1) Lawal v. Dawodu (1972) 8 and 9 SC p.83 at pgs. 114 – 117; (2) Fashanu v. Adekoya (1974) 6 SC p.93 at p.91; (3) Tsokwa Motors (Nig.) Ltd. v. Union Bank of Nig. Ltd. (1996) 6 NWLR (pt. 471) p.129; (4) NEPA v. Inameti (2002) 11 NWLR (Pt. 778) p.379 at p.427; (5) Ayanru v. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) p.462 at p.479, paras. G-H and (6) C.D.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) p.300 at p.341, paras. E – F.

In the instant case, there was enough evidence adduced before the trial Court for it to have found that the contract of service between the parties herein has a statutory flavor. There has been a misplacement and misdirection, by the learned trial Judge, of the onus of proof in this matter. Thereby, he cast the onus of establishing that the employment of the Appellant is that of residency, on the wrong party, that is the Appellant, rather than the Respondent. This has definitely occasioned a miscarriage of justice to the Appellant.
I vehemently disagree with the misapplication of the correct legal principle stated and hence the wrong conclusion reached by the trial court at page 245 of the record of appeal that:
In the instant case the parties disagreed on the existence of a contract of service or appointment as a resident doctor and the burden of proof of the existence of such appointment is on the person who wishes the court to believe in its existence and will loose if no such is placed before the Court the terms of the contract of the employment to which Exhibit “A” relates, and in the circumstance of this case the plaintiff.
The plaintiff having failed to produce or tender the terms and conditions of the contract of the employment, the Court cannot and is deprived the ability to find out in what manner the said terms were breached by the Defendant particularly item 3(d)(i) of the said appointment to which exhibit “A” relates termination of residency training programme.
I am of the view and hold that the above findings of the learned trial Judge are wrong. I do not agree with him that the evidence adduced by the Appellant was not cogent enough to establish his case. Rather, it was the Respondent that failed to prove its own assertions. For the onus of establishing its own claims shifted to and became placed on it. The Respondent did not adduce evidence in proof of the contract of service, to which exhibit A, the termination letter relates. The assertions in it being that of the Respondent, it, that is, the Respondent had the legally bounding duty to prove and establish same, accordingly.
On the whole and in the result, I hold that this appeal is meritorious. Accordingly, it is allowed and the judgment of the trial court delivered on 9th December, 2009, is hereby set aside. In the given circumstances of this matter and as I stated above in this judgment, the Appellant is entitled to reinstatement and damages for the wrongful termination of his employment.
Before I proceed to make the consequential orders in this judgment, I consider it apposite to advert to the relief sought by the Appellant to have him upgraded to the position of a consultant surgeon in Dental/Maxillofacial surgery having purportedly passed the requisite examination, the payment of arrears of salary, all entitlements, rights and privileges of that post from November 2003, the month after his employment was purportedly determined by the Respondent. It is my humble but firm view and I hold that, no court of law, including the trial Court and this Court, is capable of granting such a relief. The power to promote an employee is the exclusive preserve of his/her employer. Hence, no court of law can step into and usurp that function. Therefore, it would be ultra vires any court of law to so do. The other unbridled reliefs sought by the Appellant are that, he should continue to be in the employment of the Respondent until he attains the age of retirement and the claim of ten percent (10%) per annum interest on the judgment sum until the same is finally liquidated by the Respondent. The said reliefs are not within the purview of the provisions of the Act regulating the contract of service between the both of them. In essence, the Appellant is not entitled to those reliefs.
Consequently, it is hereby ordered as follows, that:
(1) The purported letter of termination, exhibit A, reference No.SP/CON/626/vol.1/48, dated 31st October, 2003, signed by one Usman Sambo for the Chief Medical Director of the Respondent, addressed to and served on the Appellant, is declared null, void, unlawful and of no legal effect and is quashed.
(ii) The Appellant is reinstated to the post of Senior Registrar I, the position held by him prior to the service on him of the purported letter of termination, exhibit A.
(iii) The Respondent shall pay to the Appellant all the arrears of his salary and entitlements from November, 2003 to the day of the delivery of this judgment.
(iv) The sum of One Million Naira (N1,000,000.00) general damages is awarded in favour of the Appellant and against the Respondent.
(v) The Appellant is entitled to the costs of this appeal, which is assessed at the sum of Thirty Thousand Naira (N30,000.00), and against the Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I have read the lead Judgment of my learned brother, Omoleye, J.C.A. and I agree with the reasoning given by him in allowing the Appeal.
The facts of this Appeal have already been set out in the lead Judgment, so I will not re-hash them here. The crux of the dispute between the parties is that, whereas the Appellant contends that his appointment with the Respondent is a permanent and pensionable one, the Respondent argues that it is a residency training post, a probationary one, which was not confirmed by the Respondent. The facts as contained in the printed Record disclose that on the 5th October, 1989, the University of Maiduguri Teaching Hospital offered the Appellant a job in its establishment. The fetter of appointment, Exhibit F’ which was produced before the lower court, is revealing and crucial to the determination of this issue. For ease of reference, I will reproduce the relevant portions of same hereunder:

“OFFER OF PERMANENT AND PENSIONABLE APPOINTMENT (SENIOR STAFF)

I have the honour, on behalf of the University of Maiduguri Teaching Hospital and Board of Management, to offer you an appointment as Senior House Officer in the Department of Dental Surgery…

5(e) Pension and gratuity will be in accordance with the Federal Government Pension Scheme.

6. Your appointment shall be for a probationary period of two (2) years in the first instance and subject to satisfactory performance may be confirmed by the Board for the purpose of permanent and pensionable services. The Board, in its discretion may extend the period of probation for a longer period if it considers that to do so would be in the best interest of the University of Maiduguri Teaching Hospital.

7. The appointment may be terminated by either party giving the other three months’ notice in writing or one month’s salary in lieu of notice.

8. Your appointment is subject to the terms and conditions set out in this offer of appointment and the provisions of the University Teaching Hospitals (Reconstitution of Board, etc.) Decree No.10 of 1985 pertaining to appointment, removal and discipline of clinical, administrative and technical staff and any bye-law, rules and/or regulations made thereunder and as may be reviewed from to me to time.

Yours faithfully,

(Signed)

Z. Kurama (Mrs.)
For: DIRECTION OF ADMINISTRATION”

Thereafter, the Respondent issued another letter upon the Appellant’s taking up its offer and it is also before the Court as Exhibit B. It states as follows:

UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL
(Office of the Director of Administration)

Ref. No.ADM/TH.3 Date: 11/9/89

ASSUMPTION OF DUTY

NAME: DR. ADEOSUN OLUSEYI OLALEKAN

APPOINTMENT: SENIOR HOUSE OFFICER (Dental Surgery)

NATURE OF APPOINTMENT: Permanent; GRADE LEVEL: 09/3

DEPARTMENT: Dental Surgery

DATE OF ASSUMPTION: 7TH SEPTEMBER 1989

(Signed)

Z. Kurama (Mrs.)
For: DIRECTOR OF ADMINISTRATION

From these two documents, it can easily be deduced that the appointment of the Appellant was undeniably a permanent and pensionable one. Secondly, it was to be governed by the terms and conditions set out in the letter of offer of appointment as well as the provisions of the University Teaching Hospitals (Reconstitution of Board. etc.) Decree No.10 of 1985 pertaining to appointment, removal and discipline. Thirdly, whereas the letter of appointment (Exhibit ‘F’) stated that the appointment was for a probationary period of two (2) years, both parties are ad idem that the Appellant had hitherto worked for the Respondent hospital for a continuous period of fourteen (14) years from his resumption of duty on 7th September, 1989 to the 31st October, 2003, when his appointment was purportedly terminated by a letter, Exhibit ‘A’ before the lower Court.
There was no contrary evidence before the lower court offered by the Respondent in support of its contention that the Appellant was only offered a residency training that culminated at the end of his training. Since therefore the assertion that the Appellant was not a permanent employee but a resident in training was made by the Respondent, it goes without saying that, by the state of our Law of Evidence governing civil proceedings, the onus rested squarely on the Respondent to adduce evidence sufficient to establish this assertion. This it woefully failed to do. The law is that the onus of proof in civil cases does not remain static. It shifts from side to side.
Where a party is unable to discharge the onus on it, it fails. See Sections 133 (1) & (2) and 136 (1) Evidence Act, 2011; Elema v. Akenzua (2001) 6 S.C. (Pt.111) 26; Itauma v. Akpe-Ime (2000) 7 S.C. (Pt.11) 24; Omoniyi v. U.B.A. Ltd. (2000) 5 NWLR (pt.706) 240; Kokoroowo v. Ogunbambi (1993) 8 NWLR (Pt.313) 627; Olufosoye v. Fakorede (1993) 1 NWLR (pt. 272).
Furthermore, where a contract is in writing, any agreement that seeks to vary the original agreement must itself be in writing. The law is settled that a contract which must in law be in writing can only be varied by an agreement in writing. See CBN v. Igwillo (supra); Bijou (Nig) Ltd. v. Osidiarohwo (1992) 6 NWLR (pt. 249) 463 @ 649. In the instant Appeal, the Appellant having adduced both oral and documentary evidence showing that his employment with the Respondent was a permanent one, the mere pleadings of the Respondent to the contrary without evidence to substantiate same cannot suffice.
Furthermore, it goes without saying that since the Respondent herein is Federal Institution established by statute, both the institution and officials acting on its behalf cannot act except within and under the powers conferred on them by the relevant statute. The Respondent must carry out its activities in line with the Laws setting up same and its governing laws and regulations. The laws regulating the appointment and discipline of its workers must thus be complied with strictly as their employments are with statutory flavour. Where, therefore a case of wrongful termination is made out, as in this case, the correct order to be made is one reinstating him. See C.B.N v. Igwillo (2007) 5 SCNJ 52; Olaniyan v. University of Lagos (1995) 2 NWLR (pt.9) 599.
I therefore agree with my learned brother, Omoleye, J.C.A., in his leading Judgment that the appointment of the Appellant, being one which carries statutory flavour, was wrongly terminated by the Respondent. The law is well-settled that where an employee’s service is protected by statute and his employment is wrongly terminated, he would be entitled to reinstatement to his office and, in addition, damages representing his salaries during the period of his purported removal. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Public Service Commission (1981) 1 S.C. 40.
For these reasons and for the more comprehensive ones set out in the leading Judgment, I also allow the Appeal and set aside the decision of the Borno State High court. I abide by the consequential orders, including the order as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of having read while in draft, the judgment of my learned brother, Omoleye, JCA and I agree entirely with it. The appeal deserves to succeed and I also allow it. I abide by alt the consequential orders made in the said lead judgment by my learned brother, Omoleye J.C.A, inclusive of the one made with regard to costs.

Appearances

A. Mohammed Esq.For Appellant

AND

Respondent Counsel absent.For Respondent