IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: NOVEMBER 12, 2018 SUIT NO: NICN/YEN/05/2015
BETWEEN:
DR. GODWIN O. OBANOVWE ……………………….CLAIMANT
AND
DELTA STATE HOSPITAL MANAGEMENT
BOARD
2. HONOURABLE COMMISSIONER FOR
HEALTH, DELTA STATE
3. THE ATTORNEY GENERAL AND
COMMISSIONER FOR JUSTICE,DEFENDANTS
DELTA STATE
4. ONITSHA SHEDRACK [Editor Advocate Newspaper]
[Trading in the name and style of
ONSHED INTEGRATED GLOBAL VENTURE
{PUBLISHER OF ADVOCATE NEWSPAPER}]
5. UFUOMA EGBE [Correspondent Advocate Newspaper]
REPRESENTATION
E. Taiga (Miss) Esq for the Claimant.
Mr. E.S Biwuei Esq (Asst. Director)
Delta State Ministry of Justice for the 1st, 2nd and 3rd Defendants.
JUDGMENT
INTRODUCTION AND CLAIMS
This matter started de novo before this Court after having being commenced by the Claimant by a Complaint dated and filed on the 8th day of May, 2015. The Claimant thereafter filed an Application for Amendment of his Statement of Facts dated and filed on the 9th day of June, 2015. By a further Application, the Claimant filed a Further Amended Statement of Facts which was dated and filed on the 28th day of October, 2015. His claims as set in the Complaint and also in Paragraph 46 of his Further Amended Statement of Facts are as follows:
A DECLARATION that the setting up of the Committee to investigate (sic) Claimant for the alleged misconduct by the 1st and 2nd Defendants as well as the proceedings of the Committee, the basis on which the Defendants purportedly demoted the Claimant, breached all known Rules in the Public Service as well as Claimant’s constitutional right to fair hearing guaranteed under the 1999 Constitution (as amended) amongst other relevant laws and therefore null and void.
A DECLARATION that the purported demotion by the reduction in steps by three steps for two years and final warning of the Claimant vide a letter dated 25/01/2015 on the allegations and grounds stated therein are inconsistent with his contract of service, Claimant’s Constitution (as amended), and therefore null and void.
AN ORDER setting aside the setting up and proceedings of the Investigation Committee as well as the purported demotion/final warning vide the Letter dated 25/01/2015 based on alleged misconduct by the Claimant that was investigated by the Committee.
AN ORDER reinstating the Claimant to the position of his employment before the acts of the Defendants demoting the Claimant.
A MANDATORY ORDER on the Defendants to pay forthwith all entitlements, arrears of salaries and allowances of the Claimant due to him from the 25/1/2015 when he was purportedly demoted till judgment is delivered and/or when the Defendants pay the Claimant.
AN ORDER for the Defendants to pay the Claimant the sum of N100,000,000.00 (One Hundred Million Naira) being general damages suffered by the Claimant due to the psychological trauma, humiliation and dent on the person and image of the Claimant due to the wide publication given to the purported misconduct of Claimant leading to his demotion, on newspapers, magazines and other publications at the instigation and/or behest of the 1st and 2nd Defendants
Accompanying the Further Statement of Facts were the 2nd Additional Written Statement on Oath of the Claimant’s Witness and the List of Documents to be relied upon at the trial. The Claimant also filed and relied on his Reply to the 1st – 3rd Defendants’ Statement of Defence dated 23rd July, 2015 and Further Additional Written Statement on Oath both filed on the 6th of October, 2015.
The 1st – 3rd Defendants entered appearance via a Memorandum of Conditional Appearance dated and filed on the 1st day of June, 2015. The 1st to 3rd Defendants filed their Joint Statement of Defence on the 14th of July, 2015 but was deemed to be filed on the 15th day of July, 2015. An Amended Statement of Defence was filed on the 30th day of October, 2015 which was further amended by an Application dated 4th March, 2016. The Further Amended Statement of Defence dated 4th of March, 2016 was filed on the 7th day of March, 2016. It was filed alongside a Written Statement on Oath of the Defendants’ Witness and other accompanying processes.
Trial commenced on the 22nd day of May, 2018 with the Claimant testifying as CW1. He tendered 14 EXHIBITS (EXHIBITS CW1 001 – CW1 014), was cross-examined by Counsel to the 1st – 3rd Defendants and thereafter the Claimant closed his case.
The Defendant opened their defence on the 5th day of June, 2018, and through their lone witness, one Afinotan Lawrence, tendered 6 documents which were admitted in evidence and marked as EXHIBITS DW 001 – DW 006; and after cross-examination, the Defendants closed their case. Parties were consequently ordered to file their Written Addresses, which were filed and same adopted on the 3rd day of October, 2018.
CLAIMANT’S CASE IN BRIEF
By his 2nd Additional Written Statement on Oath, the Claimant is a Medical Doctor (a Consultant Orthopaedic Surgeon) by profession and at the time of the filing of the instant case, a staff of the Delta State Hospital Management Board. He was employed by the 1st Defendant on the 5th of August, 1982 as a Medical Officer and has thus put in 321/2 years of service as a Medical Doctor and 19 years as a Consultant Surgeon with the 1st Defendant. He received a Letter dated 25/01/2015 from the 1st Defendant demoting him based on the report of a Panel set up to investigate him after a Petition written by one Comrade Joseph Owholo. He states that the said Petition alleged that he “brought patients from outside to operate at the Central Hospital Ughelli and thereafter sent them to his private clinic” and that he “bribes the Zonal Medical Director (ZMD) who allows him engage in such activities”.
According to the Claimant, it was upon the Petition that the Panel was set up without adherence to the provisions of the Delta State Public Service Rules. That though the Panel exonerated him from all allegations as was reported in the 1st Defendant’s monthly publication (EXHIBIT CW1 003), he was subsequently issued a query, on the basis upon which he was demoted. The Claimant averred that while the Query issued to him accused him of diversion of a patient from the Central Hospital Ughelli to his private clinic, the demotion letter contained three grounds of allegation to wit: wilful act, disobedience to lawful order and dishonesty. He states that the Panel did not comply with the procedures and processes in handling disciplinary actions against him. Moreover, the 2nd Defendant had no powers to take any disciplinary action against him assuming he was found to be guilty, and that the demotion is an infringement of the powers of the 1st Defendant, the Head of Service and or the Civil Service Commission as those are the authorities that can take disciplinary actions against him. The Claimant averred that he had not committed any offence or misconduct warranting the demotion by the 1st Defendant and the Defendants’ actions were aimed at humiliating and embarrassing him.
Under cross examination, the Claimant reiterated his position and further stated that the Panel was originally set up to investigate the Zonal Medical Director but his name was mentioned that he took a patient from the Central Hospital to his clinic for operation. The Claimant also averred that the composition of the Panel consisted of staff that were his juniors and just one medical doctor. He further stated that he did not have the opportunity to cross-examine the Petitioner. He brought this action when he noticed that the Head of Service was evading him. He closed his case on the same day.
THE CASE OF THE DEFENDANTS
The 1st – 3rd Defendants’ sole witness testified in chief that he is a Consultant Obstetrics and Gynaecologist by profession and a staff of the 1st Defendant. He stated that the Panel was set up to investigate an allegation made by Comrade Owholo Joseph against the Claimant, of diversion of a patient – one Mr. Pender Igbioba – from the Central Hospital Ughelli to the Claimant’s private clinic. The committee found the Claimant culpable and recommended a compulsorily retirement from service to the Board, consequent upon which a query was issued to the Claimant. DW1 further stated that the Defendants was not satisfied with the Claimant’s response, consequent upon which the Defendants approved a demotion and salary reduction of the Claimant by three steps for two years and issued him a final warning. That the Defendants action in demoting the Claimant was not malicious but based on the acts of dishonesty of the Claimant who diverted a patient from the Central Hospital Ughelli to his private clinic.
By his evidence under cross examination, DW1 stated that he was the head of the Panel who investigated the Claimant. The terms of reference of the Panel was to determine whether or not the Claimant diverted a patient from the Central Hospital to his private clinic and the Panel did not go out of the terms of reference.
THE SUBMISSIONS OF THE 1ST – 3RD DEFENDANTS
The 1st – 3rd Defendants formulated four (4) issues for determination by this Court as follows:
Whether the allegation of diversion of a patient by name Pender Igbinoba from the Central Hospital Ughelli was proved by Defendants based on the evidence before the Honourable Court
Whether the 1st – 3rd Defendants complied with (sic) Delta State Public Service Rule and the Claimant was accorded fair hearing during the proceedings of the committee set up to investigate the Petition against him.
Whether the 2nd Defendant could lawfully perform the functions of the 1st Defendant in the absence of a constituted Board of the 1st Defendant to discipline the Claimant without recourse to Civil Service Commission
Whether the Claimant (sic) relief 46(v) to wit: “a mandatory Order on the Defendants to pay forthwith all entitlements arrears of salaries and allowances of Claimant due to him from the 25/1/2015 when he was purportedly demoted till judgment is delivered and/or when the Defendants pay the Claimant” fall under the category of special damages that needed to be pleaded with particulars of the sum on each item and from the facts of this case the Claimant is entitled to whopping sum of N100,000,000.00 (One Hundred Million Naira) as general damages.
On issue one, the 1st – 3rd Defendants through their Counsel argued that from the evidence before the Court, it is glaring that the Claimant diverted a patient by name Pender Igbinoba from the Central Hospital Ughelli to his own private hospital. Learned Counsel asked the Court to look at the evidence as contained in the Panel Report (EXHIBIT DW001), particularly page 62 thereof, in forming its decision. He contends that the Claimant failed to prove that the said patient was referred to him from the Central Hospital, and all the evidence constitutes a case of diversion of patient by the Claimant.
In arguing his issue two, that is whether the 1st – 3rd Defendants complied with the Delta State Public Service Rules and whether the Claimant was accorded fair hearing during the Panel investigation against him, Learned Counsel submits that the Rules was complied with in that a query was issued to the Claimant after a Petition was written against him by a staff of the 1st Defendant and the Claimant responded by an Answer to the Query whereupon a Panel of Enquiry was set up to investigate the Claimant. Counsel contends that by virtue of Rule 04305 of the Delta State Public Service Rules, which according to him, is relevant in this instant case, the procedure adopted, that is, the setting up of a Panel of Enquiry and the issuance of a query to the Claimant thereafter, were proper.
Counsel further submits that the Defendants did not breach the Public Service Rules by constituting a Panel that was made of officers that were “not too junior” to the Claimant since the only senior officer to the Claimant as at the time could not form the Panel of Investigation.
According to Learned Counsel, the Claimant’s right to fair hearing was not breached since the Claimant was issued a query to which he responded and also appeared before a Panel before he was demoted. Counsel relied on the case of IMONIKE v UNITY BANK PLC (2011) 12 NWLR (PT.1262) PG 624 AT 648, PARA F-G, where the Supreme Court held that:
“Accusing an employee of misconduct etc by way of a query and allowing the employee to answer the query and the employee answers it before a decision is taken satisfies the requirement of a fair or natural justice. The Appellant was given a fair hearing since he answered the queries before he was dismissed.”
Counsel urged the Court to resolve the issue in favour of the Defendants.
Learned Counsel submitted in his third issue that at the period when disciplinary action was meted on the Claimant, the 1st Defendant was without a constituted Board. And that since the 2nd Defendant was overseeing the affairs of the 1st Defendant, the 2nd Defendant could lawfully perform the function of the 1st Defendant in disciplining the Claimant.
He contends that the Claimant admitted the status of the 1st and 2nd Defendants in his Statement of Claim hence it is not in dispute that the 2nd Defendant can assume the 1st Defendant’s function of disciplining a staff in the circumstance. The Claimant is not in the employment of the Civil Service Commission but the 1st Defendant, it follows therefore that failure to adhere strictly to the Civil Service Commission Rules or the Head of Service in taking out disciplinary actions against the Claimant, is not fatal. The Learned Counsel further contends that the Medical and Dental Professionals’ Act does not prescribe exclusive jurisdiction for Medical and Dental Council of Nigeria on disciplinary measures or control over medical practitioners in Nigeria neither does Section 18 of the Delta State Hospital Management Board Edict No. 5 1996 excludes medical practitioners from disciplining staff in its service. He submits that both the Medical and Dental Council of Nigeria and the Defendants (1st and 2nd) have disciplinary jurisdiction over the Claimant though both cannot discipline the Claimant at the same time.
On his final issue for determination, Learned Counsel submits that the relief sought by the Claimant as per paragraph 46(v) of his Statement of Claim falls within the spectrum of special damages that ought to be pleaded with clarity and particulars of the sum contained therein. To buttress his submission, Counsel cited the cases of ALHASSAN v A.B.U ZARIA (2011) 11 NWLR (PT.1259) PG 417 AT 469-470, PARA E-B and I.H.A.B.U.H.M.B v ANYIP (2011) 202 LRCN PG.51 AT 67 PARA F-K. Counsel argued that by failing to plead the salary and entitlement amounts, the Court should refuse the grant of the relief as the Court cannot assume the facts or the existence of such salaries or entitlements. Also that since the Claimant has retired from public service, granting such relief which seeks to order payment of salaries/entitlements until judgment is delivered without a specified period of time, would amount to granting the Claimant entitlements he does not deserve.
Learned Counsel reminded the Court that in awarding and accessing general damages, the Court must consider whether the facts of the case warrants the sum sought for. Counsel contends that as far as the instant case is concerned, the sum of one hundred million naira (N100, 000, 000.00) is unwarranted as it is not borne out of the facts of the case. He urged the Court not to grant the Claimant’s relief of one hundred million naira (N100, 000, 000.00)
It was Counsel’s further contention that the 1st – 3rd Defendants are not liable for the publication on the 4th and 5th Defendants magazine that portrays the Claimant as dishonest. That it is only the opinion of the Claimant that they instigated the publication. By Section 67 of the Evidence Act, 2011, the Court should hold inadmissible such opinions.
Counsel also states that all the documents tendered by the Claimant are public documents that require certification on the authority of Section 90(1)(c) of the Evidence Act, 2011 and AROMOLARAN v AGORO (2015) 239 LRCN PG 79 AT 100 PARA K amongst others. He called upon the Court to expunge all the exhibits tendered by the Claimant and hold them to be inadmissible notwithstanding the fact that they were not objected to at the time of tendering them. He further relied on the case of ONOCHIE v ODOGWU (2006) 142 LRCN PG 2545 AT 2569. Counsel urge the Court to hold that the Claimant has failed to prove his claim and as such dismiss the claims.
SUBMISSION OF THE CLAIMANT
The Claimant’s Written Address was dated and filed on the 16th of July, 2018, wherein he raised the following issues for determination by this Court:
Whether the allegation of diversion of a patient by name Pender Igbinoba from the Central Hospital Ughelli was proved by Defendants based on the evidence before the Honourable Court.
Whether the 1st and 2nd Defendants by their actions and the proceedings of the committee set up to investigate the petition leading to the filing of this action, there was fragrant breach of the Public Service Rules of Delta State and in particular the provision of the 1999 Constitution as amended relating to the right to fair hearing
Whether having regard to the facts of this case the 2nd Defendant had the statutory right to take over the function of the Board of (sic) 1st Defendant including the Medical Council of Nigeria
On the issue of proof of allegation of diversion of a patient (Issue one), the Claimant’s Counsel submitted that in a case where a servant is disciplined and reasons are given for the disciplinary actions, the onus is on the master to prove the alleged misconduct. He cited the authorities of NEPA v ADEYEMI (2007) 3 NWLR (PT.1021) PG 315 AT 331-332, PARAS H-B, RATIO 2 and SPDC (NIG.) LTD v OLAREWAJU (2003) FWLR (PT.140) 1640 AT 1667, PARAS B-C & F. With these, Counsel contends that it is the law that the onus of proving the alleged offences of wilful act, disobedience of lawful order and dishonesty, being the reason for demoting the Claimant, rests on the 1st – 3rd Defendants especially as the said reasons for the disciplinary action are being challenged in Court.
Counsel submits that by the uncontroverted evidence of the Claimant before this Court, which according to him, was also corroborated by the DW1 under cross-examination, there was no diversion of any patient by the Claimant from the Central Hospital Ughelli to his private clinic. Inspite of the facts and evidence that the patient first visited the Claimant’s clinic before the Central Hospital, the Panel without basis found the Claimant culpable of the allegation. Counsel further submits that the Claimant was a dedicated staff of the 1st Defendant who did not divert any patient especially as five (5) nurses who were witnesses and appeared before the Panel testified in favour of the Claimant. He contends further that it was within the Claimant’s status, as provided for by the Rules of Professional Conduct for Medical and Dental Practitioners (EXHIBIT CW1 006), to run a private clinic as well as to offer in-hospital care to his private patient with the hospital in which he is in full employment.
EXHIBIT CW1 006 is applicable in Delta State and across the Country contrary to DW1’s evidence that it was not applicable to Delta State as at the time. Learned Counsel reminds the Court that Regulation on specific subject matters takes precedent over and above the general Regulations. He urged the Court to grant the reliefs sought by the Claimant if this issue is resolved in favour of the Claimant.
On his issue two, Claimant’s Counsel argued that assuming without conceding the Defendant prove the allegation of misconduct against the Claimant, once it is shown that the 1st and 2nd Defendants breached the Claimant’s right to fair hearing or that laid down procedures for disciplinary actions are not followed, the basis on which the Claimant was demoted will be set aside. In submitting that the Claimant was denied his right to fair hearing, Learned Counsel relied on the provisions of Section 36 of the 1999 Constitution (As Amended) to conclude that the fact that the Defendants failed and or refused to give the Claimant an opportunity to cross-examine the Petitioner – Comrade Owholo –, whose evidence before the Panel was uncorroborated, or other witnesses who appeared before the Panel, then such a procedure, on the authorities, amounts to a denial of fair hearing. He contends that the 1st – 3rd Defendants breached not only the Constitution but also the Public Service Rules which stipulates disciplinary procedures for erring employees. He relied on the authorities of GARBA & ORS v UNIVERSITY OF MAIDUGURI (1986) AL NLR PG.149; STATE CIVIL COMMISSION v ALEX I. BUYUGBE (1984) 7 SC, PG 24; and OKOCHA v CIVIL SERVICE COMMISSION, EDO STATE (2004) 3 NWLR (PT.861) 494, RATIO 5
On this issue also, Learned Counsel argued that the constitution of the Panel members itself does not conform with the provisions of the Public Service Rules because the membership of the Panel consisted of persons who were far the Claimant’s junior contrary to the provisions of Rule 04306(v). That since it has been established that the mandatory requirements of the procedure for disciplining civil servants as prescribed by the Public Service Rules of Delta State were not complied with, it naturally follows that the recommendations reached and the decisions made against the Claimant, are null and void and should be set aside. He cited further the case of UTHNB v NNOLI (1994) 8 NWLR (PT.363).
Learned Counsel in arguing his issue three submits that it is the Medical and Dental Council that has the responsibility to make regulations for the practice of Medical and Dental Professionals throughout the Federation. That Federal Laws takes precedent of State Laws, hence if the Defendants suspect that the Claimant has committed a professional misconduct then it is the Medical and Dental Council that has the powers to investigate the Claimant. Counsel further contends that apart from stating that the 2nd Defendant can perform the functions of the Board in its absence, the Defendants did not refer to any position of the Edict which gives the 2nd Defendant powers to so act. It is thus his conclusion that the 2nd Defendant cannot act in the absence of the Board. On the contrary, Counsel submits that it is the Head of Service that is empowered to act where there is no Board of the 1st Defendant in place.
DEFENDANTS’ REPLY ON POINTS OF LAW
The Defendants also filed a joint Reply on Points of Law dated the 25th of July, 2018 but filed on the 26h day of July, 2018. The Learned Counsel to the 1st – 3rd Defendants submits that the Defendants never tried to mislead the Court by removing any page of EXHIBIT D2A (Panel Report) as they felt it was only the relevant pages that refers to the Claimant that should be tendered. The Defendants maintained that the procedures for taking out disciplinary actions were in accordance with statutory provisions and proper consideration was made before reaching a decision on the appropriate punishment for the Claimant and that the Claimant was given fair hearing. The Defendants also submit that they have the powers to punish the Claimant and not the Medical and Dental Council of Nigeria. The 1st – 3rd Defendants are not responsible for the publications made by the 4th & 5th Defendants.
COURT’S DECISION
After consideration of the processes filed and the evidence tendered and admitted in this Court, and upon listening to the witnesses who testified on oath, I believe, to my mind that the issues raised by both Parties can better be summarized into two issues, as follows:
Whether the constitution of the Panel of Enquiry and disciplinary proceedings against the Claimant pass the legal test as stipulated in the relevant legal statutes and principles.
Whether the Defendants failed to establish the Claimant’s misconduct as to render the decision of the Panel against him null and void and thus entitling him to the reliefs sought from this Court.
Its trite that there are roughly three categories of contract of employment, these includes those regarded as purely master and servant, those where a servant holds office at the pleasure of the employer; and those where the employment is regulated or governed by statute, otherwise known as having statutory flavour. See CENTRAL BANK OF NIGERIA VS. IGWILLO (2007) 14 NWLR (PT. 1054) 393; LONGE VS. FBN PLC (2010) 6 NWLR (PT. 1189) 1 SC.
Furthermore, under a contract of employment with statutory flavour, the court is not entitled to look outside the contract of service as to the terms and conditions. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See the case of DAODU VS U.B.A PLC 92004) 9 NWLR (PT. 878) 276 C.A; AKINFE VS U.B.A PLC (2007) 10 NWLR (PT. 1041) 185.
It is settled law that where the employment of a person is coated with statutory flavour, such an employee holds his employment under the provisions of the Statute establishing and or regulating the Institution he serves. Consequently, any action sought to be taken for or against such employee must be undertaken in accordance with due process and as prescribed by the said laws governing the employment. The case of IDERIMA v RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT.951), PG 378 is instructive. In effect, strict adherence to the provisions of the laws is ordered.
The Law regulating disciplinary actions against employees, as in the instant case, is the Public Service Rules, Delta State (“The RULES”). The Rules provides for different methods by which the misconduct of an employee can be raised and the procedural steps to be followed in disciplining the employee. Firstly, by Paragraph 04302 of the Rules, a superior officer who is dissatisfied with the behaviour of a subordinate officer has the prerogative of issuing such officer a query in writing and to call upon the said officer to submit within a specific time a response also in writing, exculpating himself/herself from disciplinary action. The superior officer may, after consideration of the response, decide whether:
the officer has sufficiently exculpated himself/herself, in which case, no further action is required or
may issue the officer a formal letter of advice if he/she has not sufficiently exculpated himself but it is considered that such officer should not be punished or
if the officer has not exculpated himself and deserves some punishment, report the officer to the Permanent Secretary without delay. In this case, the Permanent Secretary shall take action as required under Rules 04302 – 04306.
Where the Permanent Secretary does not consider the misconduct serious enough to warrant a proceeding in view of dismissal of the officer, the Permanent Secretary may cause an investigation to be made into the matter. If the allegation is proved, it may inflict any punishment on the officer other than dismissal. For example reduction in rank, deferment of increment, etc. The officer may be suspended during the pendency of the investigation (Rule 04304(d)).
Secondly, any officer may report a case of misconduct that comes to his notice to an officer that is superior to the offending officer. Where this occurs, the superior officer shall report the misconduct to the Permanent Secretary who shall undertake the procedural steps as stated above.
Thirdly, where the officer has been guilty of a misconduct which the Commission considers to be serious to warrant a dismissal, the provisions of Rule 04306 (04307) will apply. Strict adherence to these methods are mandatory therefore a misstep of any of these procedures render the action null and void ab inito. See the cases of INCORPORATED TRUSTEES OF NIGERIA GOVERNORS FORUM & ANOR v RIOK (NIG.) LTD & ORS (2018) LPELP-44915 (CA); YEMISI v FIRS (2012) LPELR-7964 (CA); UNION BANK OF NIG LTD v CHARLES OGBOH (1995) 2 NWLR (PT.380) PG.647 AT 669
It is therefore stressed that the appropriate authority saddled with the responsibility of disciplining an erring officer, as the Claimant in this instant case, is the Permanent Secretary and no other. It is immaterial if there exist another responsible government official or department that can undertake the action. Until the Rule is amended, no other method of discipline or extraneous recommendation should be adopted in the exercise of this power. IDERIMA v RIVERS STATE CIVIL SERVICE COMMISSION (supra). In this wise, I agree with the Counsel to the Clamant that the 2nd Defendant is not the appropriate authority to set up the Panel nor can he act for or behalf of the Permanent Secretary of the 1st Defendant in this regard. The powers so contained in the Rules are non-delegable.
Now standing on this ground, the question as to whether the diversion of a patient amounts to misconduct not sufficient enough to warrant a dismissal or if it constitute a serious offence sufficient enough to warrant a dismissal, becomes relevant. Before delving into that, I must state that I do not subscribe to the contention of Learned Counsel to the Claimant that the offence is one that borders on professional misconduct which should activate the probe by the Medical and Dental Council in Nigeria. This, to my mind, is a simple case of allegation of breach of workplace rules and regulations, which can be probed by the authority saddled with disciplinary responsibilities as stipulated by the Delta State Public Service Rules regulating the Claimant’s employment with Central Hospital, Ughelli.
In the instant case, EXHIBITS DW1 005 and CW1 002 show that one Comrade Owholo petitioned the Permanent Secretary on the matter of which the Claimant was alleged to have operated on a patient in the Central Hospital theatre and transferred the patient to his private hospital in Emekpa (two weeks before the date of the petition) which, for all intent and purposes, complied with the second method through which a case of misconduct may be brought to the notice of the Permanent Secretary. A Panel was thereafter set up to investigate the allegation against the Claimant which submitted its report in June, 2014. It was after the Report of the Panel that a Query was issued to the Claimant on the 14th day of August, 2014 (EXHIBIT CW1 004). This was a misstep as whatever procedure the Defendants seek to adopt, a query must precede the investigation and disciplinary action. I so hold.
I do not agree with the argument of Learned Counsel to the 1st-3rd Defendants that the procedure of investigation first, before the issuance of a query is in tandem with the procedural step for disciplinary action as stipulated by Rule 04305 of the Delta State Public Service Rules. As posited above, the provision of Rule 04305 of the Rules becomes operational after a query has been issued first and a response obtained from the offending officer and it is presented to the Commission that the officer has been guilty of misconduct which is not serious enough to warrant a proceeding for dismissal.
On the other hand, if it is argued that the offence of diversion of patient is a serious misconduct that warrants a dismissal, the Defendants did not also comply with Rule 04306 (04307), which provides for the procedural steps in that regard. It follows also that a query, which should be precise and to the point must be issued first to the officer involved as well as complete access to the document(s) or report used against him. Furthermore, the constitution of the members of the Panel did not take due regard to the status of the Claimant, being a very senior doctor. Not only was his junior appointed as the Chairman of the Panel, other members were non-doctors. This in itself is a fundamental breach of the provisions of Rules 04306 (04307).
Assuming it is held that the procedural steps as stipulated by Rule 04305 were complied with as suggested by Learned Counsel to the 1st – 3rd Defendants, the Claimant made the proceedings of the investigation Panel an issue when he stated in evidence that he was invited to attend the Panel via a text message without knowing the case or allegation against him to afford him the opportunity to prepare for his defence nor was he given the opportunity to confront his Accuser. This evidence was neither contradicted nor controverted by the Defendants. The argument by the Defendants that the Claimant did not request for same was an afterthought, which this Court would not be cowed to believe. DW1 stated in evidence that:
“it is true that we called each person into the room individually and we asked them questions and thereafter they leave the room…we did not ask the Claimant whether or not he wants to cross-examine the Petitioner”.
This evidence goes to show that no opportunity was created by the Panel to enable the Accused face his Accuser.
It is an elementary principle of fair hearing that where a person, or the Claimant as in this instant case, appears before a panel to answer allegations of misconduct against him and of which witnesses are brought to substantiate such allegations, such person must be allowed the opportunity to confront his accusers and cross-examine them on the allegations. This amounts to fair hearing. Anything outside this is an infringement of the person’s right to fair hearing. See ALI v NIGERIA CUSTOMS SERVICE BOARD (2018) LPELR-44106; NUHU v OGELE (2003) 18 NWLR (PT.852) PG.251. I resolve this issue in favour of the Claimant.
On issue two, the salient point this Court is called upon to determine under this head is whether the allegation of misconduct against the Claimant has been adequately proved to have warranted his demotion and its ancillary consequences.
The Claimant is challenging the reasons adduced in evidence by the 1st – 3rd Defendants as the basis upon which he was demoted. The evidence before this Court is that the Petitioner – Comrade Owholo – was the Head, Laboratory Department of the Central Hospital, Ughelli and by the evidence of DW1, he was the only witness who testified against the Claimant before the Panel. His evidence was neither corroborated nor verified. It was the evidence of DW1 that:
“…yes, all the nurses working with the Claimant told our committee that there was no any case of diversion of a patient by the Claimant.”
I have also looked at the testimonies of the nurses as contained in EXHIBIT D2 A, particularly Mrs. Roseline Ohre (Matron-in-charge of Male Orthopaedic Ward), who had first contact with the patient in February, 2014 and registered “refused admission” on one of the case cards of the patient, confirming the evidence of the Claimant that the patient left the Central Hospital against doctor’s advice (Paragraph 28 of the Claimant’s Further Amended Statement of Claim). None of these nurses, who worked closely with patients and the Claimant, confirmed or even suggested that there was a case of diversion of patients. The evidence of the Claimant that he first made contact with the said patient in January, at his private clinic, and during the period of his leave, was also not controverted nor negated.
It is an elementary principle of law that he who asserts must prove. The mere allegation of diversion of a patient made by Mr. Owholo was at best a speculation as he only formed an opinion without knowing all the facts and details as revealed by his testimony before the Panel contained in Page 31 of EXHIBIT D2 A. This is a Court of Law where life issues are determined, parties and the Court are not allowed to speculate. See JITTE v OKPULOR (2016) 2 NWLR (PT.1497) PG 542; IKENTA BEST (NIG.) LTD v A.G RIVERS STATE (2008) 6 NWLR (PT.1084) PG 612; ARIBO v CBN & ANOR (2011) 12 NWLR (PT.1260) PG.133
The Defendants failed to prove the allegation of diversion of a patient – Pender Igbinoba – by the Claimant from the Central Hospital, Ughelli to his private clinic. The extraneous reasons for his demotion was also not proved. Rather it seems to me and every discerning mind that the Claimant was singled out to be ridiculed and humiliated by the Defendants hence the tendering of series of queries that have no bases on the instant case and the speed at which the 4th and 5th Defendants carried the news. This smacks off witch hunt and high handedness.
I refuse to agree with the 1st – 3rd Defendants’ Counsel that the Claimant’s relief (v) falls within the spectrum of special damages. The authorities relied upon by Counsel are not on all fours with the instant case. The law is trite on what amounts to special damages. They are damages which are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. See AHMED & ORS v CBN (2013) 2 NWLR (PT.1339) PG.524; OBASUYI & ANOR v BUSINESS VENTURES LTD (2000) 5 NWLR (PT.658) PG.668. Most importantly, special damages are exceptional in character for being within the individual knowledge of the Claimant and are not such as can be inferred from the nature of the wrongful act. The cases of GONZEE NIG. LTD v NERDEC (2005) 13 NWLR (PT.943) PG.634 and NICON HOTELS v NDC (2007) 13 NWLR (PT.1051) PG.237, is of the moment.
EXHIBIT CW1 001 emanated from the 1st Defendant and Paragraph 3 of the document thereof states as follows:
“(3) Accordingly, your present salary of Conmess 7 step 9 is hereby reduced to Conmess 7 step 6 for two years…”
This document was not contradicted nor denied by the Defendants as emanating from them. It shows then that the salary scale, and indeed, the amount due but deducted from the Claimant’s salaries are within the accurate knowledge of the Defendants and as such does not need further proof from the Claimant. However, I concede to the Defendant’s argument that granting the Claimant the second leg of the relief will amount to allowing the Claimant reap from where he did not sow, having retired from service since the year 2016. Consequently, the Claimant is only entitled to the said deductions from his salaries only to the extent of the number of months it was so deducted before his retirement.
Lastly, as to the issue of public documents raised by Parties, I am at loss as to the document or documents the Defendants are referring to, as most of the documents tendered in evidence by the Claimant were either addressed to him or such that he had given notice to the Defendants to produce as per his Further Amended Statement of Claim dated and filed on the 28th day of October, 2015. A combined reading of Sections 89, 90 and 91 of the EVIDENCE ACT, 2011 permits the Court to admit and act upon the documents as being properly so admitted, and I so hold.
I felt the Claimant has proved his case, I resolved all the issues in favour of the Claimant.
For the avoidance of doubt these are the clear judgment of this Court:
I declare that the setting up of the Committee to investigate the Claimant for the alleged misconduct by the 1st – 3rd Defendants as well as the proceedings of the Committee, the basis on which the Claimant was demoted; breached the procedural steps for disciplinary actions as provided for by the Delta State Public Service Rules and the Claimant’s right to fair hearing as enshrined in the 1999 Constitution (as amended).
I hereby set aside the proceedings of the said Committee to the extent as it relates to the Claimant herein and the demotion by reduction in steps by three steps for two years and the letter dated 25/01/2015 containing same as being inconsistent with the tenets of natural justice and good conscience, and are therefore null and void.
The 1st – 3rd Defendants are hereby ordered to pay the Claimant the deductions made in his salaries which was reduced from the Conmess 7 step 9 category to Conmess 7 step 6 category, from the 25th of January, 2015 to the date of his retirement from public service in 2016.
The Defendants are also ordered to pay the Claimant the sum of Five Million Naira (N5, 000, 000.00) as general damages for the psychological trauma, humiliation and dent to his person and image by the acts and conducts of the Defendants which is in line with the provisions of section 19(d) of the NIC Act, 2006.
The claim contained in paragraph (iv) of the Claimant’s Reliefs, having been overtaken by the event of the Claimant’s retirement, is hereby dismissed.
I so hold.
All the terms of this judgment are to be complied 30 days from today.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
