FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. FOLORUNSO KAYODE MICHAEL (2012)

FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. FOLORUNSO KAYODE MICHAEL

(2012)LCN/5775(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/AE/84/2010

RATIO

LABOUR LAW: HOW CAN CONTRACT OF SERVICE ENJOYING STATUTORY PROTECTION BE TERMINATED

LABOUR LAW: CATEGORIES OF EMPLOYMENT

In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265 this court enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

See also Olaniyan v. Unilag (1985) 2 N.W.L.R. part 9 at page 599 and Shitta-Bay v. F.P.S.C. (1981) 1 S.C. at page 40. Also in Amodu v. Amode (1990) 5 N.W.L.R. Part 150 page 356 at 373 the learned jurist Wali J.S.C. stated:

“The terms of the contract of service are the bedrock of the Appellant’s case.” PER MODUPE FASANMI, J.C.A

JUSTICE: RULE OF NATURAL JUSTICE

The importance of natural justice cannot be scuttled away within the administration of justice. The courts have always insisted on natural justice because it is the surest safeguard against injustice. The rule of natural justice of audi alteram partem simply means “hear the other side”. The rule of audi alteram partem postulates that the court or other Tribunal must hear both sides at every material stage of the proceeding before handing down a decision. It is a rule of fairness. A court or Tribunal or other body cannot be fair unless it considered both sides of the case as may be presented by the parties. See Akuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 N.W.L.R. part 65 at 472, Agbahomovo v. Eduyegbe (1999) 3 N.W.L.R. part 594 at 170, Orugbo v. Una (2002) 16 N.W.L.R. part 792 page 175 and Olufeagba v. Abdul-Raheem (2009) 18 N.W.L.R. part 1173 page 384 at 452 paras A – C and 454 para B. PER MODUPE FASANMI, J.C.A

LABOUR LAW: REMEDY FOR WRONGFUL TERMINATION OF EMPLOYMENT ENJOYING STATUTORY FLAVOUR

An employee with employment enjoying statutory flavour and whose employment was illegally terminated is entitled to reinstatement. A public servant can only be validly removed from service if the procedure prescribed by law was followed and once the dismissal or termination of appointment of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still a civil servant. See the cases of Eperokun v. Unilag (1986) 4 N.W.L.R. part 34 page 162 and Olufeagba v. Abdul-Raheem (2009) 18 N.W.L.R. Part 1173 page 384 at 440 paras A-C. PER MODUPE FASANMI, J.C.A

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

1. FEDERAL MEDICAL CENTRE, IDO-EKITI.

2. THE CHIEF MEDICAL DIRECTOR, FEDERAL MEDICAL CENTRE, IDO-EKITI

3. THE BOARD OF DIRECTORS, FEDERAL MEDICAL CENTRE, IDO-EKITI. – Appellant(s)

AND

FOLORUNSO KAYODE MICHAEL – Respondent(s)

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Ado-Ekiti, Ekiti State delivered on the 28th of October 2009. The suit was filed at the Akure Judicial Division of the Federal High Court but was later transferred to the Ado-Ekiti Judicial Division of the Federal High Court for trial when same was created.

The facts are that the Respondent was employed by the 1st Appellant as a clerical officer on about the 30th of July 2002. He was upgraded to the position of Assistant Executive Officer on 12th of August 2005 when his appointment was confirmed. Respondent was the Secretary General of the Medical and Health Union of Nigeria, the 1st Appellant’s Centre, Ido-Ekiti. On or about the 17th day of March 2006, his appointment was terminated by the Appellants. He was neither summoned before any disciplinary panel let alone being issued query.

Appellants contended that the Respondent’s appointment was not terminated but that his appointment was down sized in line with the decision of the Appellants taken on 15th November, 2005 pursuant to the reform of Public Service Rules which was published in March 2006.

Pleadings were filed and duly exchanged. At the end of the trial, the learned trial judge on the 28th of October 2009 entered judgment in favour of the Respondent and ordered reinstatement of the Respondent among other reliefs. Dissatisfied with the judgment, the Appellants appealed to this court.

In compliance with the rules of this court, Appellants filed their brief of argument on the 15th of November, 2011 but was deemed properly filed and served on the 8th of November 2012, while Respondent’s brief of argument was filed on 19th of April 2012 but it was deemed properly filed and served on the 8th of November, 2012.

At the hearing of the appeal, Miss Oluwaseun Olotu a Legal Officer represented the Appellant. She adopted and relied on the Appellant’s brief of argument filed on 15/11/11 but deemed properly filed and served on 8/11/12. She urged the court to allow the appeal. Mr. Olabanjo Ayenakin, Learned Counsel for the Respondent adopted and relied on the brief filed on 19th April 2012, but which was deemed properly filed and served on the 8th of November 2012. He urged the court to dismiss the appeal as lacking in merit.

Appellants distilled four issues for determination as follows:

(1) Whether the trial court was justified in holding that the Respondent’s employment is one with statutory flavour.

(2) Whether the trial judge was justified in ordering reinstatement of the Respondent.

(3) Whether the procedure adopted in terminating the appointment of the Respondent violates the rules of natural justice.

(4) Whether from the issues arising, the trial court was justified in ordering payment of all salaries and allowances to the Respondent.

Learned Counsel for the Respondent adopted the issues formulated by the Appellant. The court will determine the appeal on the issues formulated by the Appellant in this order. Issues 1, 3, 2 and 4, which will now be rearranged as issues 1, 2, 3 & 4 in the judgment.

Issue One.

Whether the trial court was justified in holding that the Respondent’s employment is not one with statutory flavour.

Learned Counsel for the Appellant submitted that the Respondent has a duty to prove the conditions of service of his employment and the breach thereof entitles him to judgment. He referred to the case of Chief Tamunoemi Idoniboye Obu v. Nigeria National Petroleum Corporation (2005) 3 N.W.L.R. Part 8, page 276 at 287 ratio 7. He submitted further that the 1st Appellant is not a creation of any law in Nigeria. It was merely set up to deliver health care services to the populace. Even though it is a parastatal under the Federal Ministry of Health, it hires and fires its own staff. It does not in any way have recourse to the Federal Civil Service Commission. Neither does the Federal Ministry of Health interfere in the issue of employment of its staff.

He argued further that 1st Appellant has always conducted its affairs based on decision of its Board of Directors and Rules of other institutions such as Teaching hospitals as the Board of Directors may adopt for its purpose. He went further to state that the Respondent’s employment was confirmed by the 1st Appellant with the approval of the 3rd Appellant. His appointment was terminated by the 1st Appellant. He submitted further that before an employment will be held to be one with statutory flavour it must be shown that:

(1) The employer must be a body set up by a statute.

(2) The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned. He relied on the case of Babatunde v. Oshogbo Steel Rolling Co., Ltd. (2005) 2 N.W.L.R. Part 5 page 294 at 302 ratio 14. He argued further that the Respondent has a duty and burden to proof his terms of employment and conditions of service which he failed to do. It is not enough to merely state that he was appointed by In Appellant under a delegated power from the Federal Civil Service Commission.

Learned Counsel reiterated further that to succeed in an action for wrongful termination of appointment, plaintiff must place before the Honourable court –

(a) The terms of the contract of employment and

(b) Prove in what manner the said terms were breached by the employer.

He relied on the case of Katto v. Central Bank of Nigeria (2008) 2 N.W.L.R. part 4 page 1 at para. 6. The Respondent failed to prove that his employment was governed by the Civil Service Rules. He submitted that it is too late in the day for the Respondent who was employed by the 1st Appellant and who like every other staff subjected himself to the directives and control of the Board of Directors of the 1st Appellant since he was employed in year 2002 till he was terminated in March 2006 by the approval of the same Board of Directors to now turn round to deny the Board and lay claim to the Public Service Rules as governing his employment without pleading and proving facts in support of same.

Learned Counsel for the Appellant submitted that since the Appellant is not a creation of statute and Respondent has failed to show and or prove any delegated authority to the 1st Appellant and also failed to plead and prove facts regarding the terms of his contract of employment, the Respondent’s action must fail. The Respondent cannot unilaterally confer upon the 1st Appellant any status not conferred upon it in law. He urged the court to resolve issue one in favour of the Appellants.

Learned Counsel for the Respondent submitted that in deciding whether the Respondent’s appointment is statutorily flavoured, the courts have held that recourse should be had to the content of the letter of appointment which is the fulcrum of the Respondent’s appointment. He referred to the case of N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 page 251 ratio 3 where it was held inter alia.

“Generally, the letter of employment must be resorted to in considering and determining the rights and obligations of parties under a contract of service”

Submitted that the letter of appointment tendered by the Respondent which was not challenged by the Appellant states:

“…your conditions of service will generally be in accordance with those applicable in cognate institutions within the Federal Public Service as may be adopted or varied from time to time”

He contended further that the Respondent pleaded in his reply to statement of Defence that the termination of his appointment was in contradiction to the Public Service Rules. Appellant never contradicted this averment. Submitted that where a party avers a fact and the other party fails to contradict, the averment is deemed admitted. He relied on the cases of Nwaranta v. Egboka (2006) All F.W.L.R. part 338 page 768 at 772 ratio 6 and Lufthansa Airlines v. Odiase (2006) 7 N.W.L.R. part 975 page 49 ratio 12.

Submitted that the Respondent is employed under the Public Service Rules or subject to the rules. Obviously, his employment is statutorily flavoured. He referred to the case of:

Iderima v. Rivers State Civil Service Commission (2005) All N.L.R. page 285 at 431 where the Supreme Court held emphatically that the Public Service Rules has constitutional force. It is therefore erroneous for the Appellant to argue that the 1st Appellant is not created by a statute and that there is no establishing statute regulating the employment of the Respondent. He argued further that the authority of Chief Tamunoemi Obu v. N.N.P.C (2005) 3 N.W.L.R. part 8 page 276 is quite different from the case as N.N.P.C. is a corporation. Submitted that the authority is not applicable.

He contended further that Rule 02101 of the Federal Civil Service Commission has granted authority to the Permanent Secretaries, Head of Extra-Ministerial Departments to appoint eligible candidates into positions. This delegation of appointment under the Public Service Rules is therefore an issue of law and not fact. Even if it is a question of fact, Respondent pleaded it and gave evidence thereon which the Appellant never contradicted. He also cited Rule 01001 which states that the Public Service Rules applies to all officers irrespective of his ministry or department or parastatals approved by the Federal Government and written into the contract of employment or letter of appointment.

For the Appellants to say that the Respondent is not a Public Servant appointed under the Public Service Rules is an afterthought. Learned Counsel for the Respondent urged the court to resolve issue one against the Appellant and in favour of the Respondent.

An avalanche of courts’ decisions have pronounced that where contract of service enjoys statutory protection, it can only be terminated in the manner prescribed by the governing statutory provisions; a breach of which renders the act ultra vires and void. See the case of Olufeagba v. Abdul-Raheem (2009) 18 N.W.L.R Part 1173 page 384 at 462 paras C D.Also in line with the Respondent’s view the courts have held that recourse should be had to the contents of the letter of appointment. In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265 this court enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

“The terms of the contract of service are the bedrock of the Appellant’s case.”

The conditions of service would determine whether the Respondent’s termination of his employment was done following due process.

In the instant case, the letter of appointment tendered by the Respondent para 2 Exhibit A states as follows:

“….your conditions of service will generally be in accordance with those applicable in cognate institutions within the Federal Public Service as may be adopted or varied from time to time.”

Respondent in paragraphs 12 and 13 of his statement of claim stated thus.

(12) “Plaintiff appointment and conditions of service is regulated by the Public Service Rules.

(13) Plaintiff shall lead oral evidence to the effect that the termination of his appointment contravenes the Public Service Rules”

Respondent as Plaintiff in his evidence stated that the termination of his employment did not follow due process regulated by the Public Service Rules.

From the facts on record, the Respondent was employed under the Public Service Rules per exhibit ‘A’. Obviously his employment is statutorily flavoured since the conditions of service of the Respondent are governed by the Public Service Rules. Exhibit A2 states that the conditions of service applicable is as in cognate institutions within the Federal Public Service. This fact was pleaded and proved by evidence at the lower court. The learned trial judge rightly held at page 61 of the record that:

“According to exhibit A2 the conditions of service applicable is as in cognate institutions within the Federal Public Service and I have no difficulty in holding that it is the Public Service Rules that regulate the contract of employment between the Plaintiff and the Defendants.”

Where the provisions of a statute govern the conditions of employment of an employee, the court regards the employee as having secure a special legal status other than the ordinary master and servant relationship with his employer. In that case, the employer is bound to comply with these conditions when it comes to termination of appointment of the employee, otherwise the act of termination would be declared wrongful, null and void. See Fakuade v. O.A.U.T.H. (1993) 5 N.W.L.R. Part 291 at 47 and F.M.C. Ido-Ekiti v. Alabi (2012) 2 N.W.L.R. part 1285 page 411 at 438 paras F-G.

The Appellants have not faulted the Respondent’s letter of appointment which clearly stated that he was employed under the Public Service Rules. Appellants’ contention that the Respondent did not prove that he was employed by the 1st Appellant under a delegated authority from the Federal Civil Service Commission is misconceived.

The evidence of the Respondent which was not faulted by the Appellant by necessary implication adopted the Public Service Rules as the conditions of Service governing the appointment of their staff as applicable in cognate institutions within the Federal Public Service of the Federation.

Since Appellants have not faulted the Respondent’s letter of appointment which clearly stated that he was employed under the Public Service Rules, the trial court rightly held that the Respondent’s appointment has statutory flavour and the termination of his employment was ultra vires, null and void. Issue one is hereby resolved against the Appellants.

Issue Two

Whether the procedure adopted in terminating the appointment of the Plaintiff/Respondent violates the rules of natural justice.

Learned Counsel for the Appellant submitted that the procedure adopted by the 1st Appellant did not in any way violate the rule of natural justice of fair hearing. Submitted further that the Appellant need not follow any particular procedure in carrying out a restructuring of its organization for more efficiency and to reduce its overhead/ expenditure. He contended that fair hearing need not involve setting up of panels but sufficient if an employee as in this case is given opportunity to state his own side of the case before disciplinary action is taken against him. Learned Counsel for the Appellant urged the court to resolve issue two in favour of the Appellant.

Learned Counsel for the Respondent adopted his argument on issue one and further stated that the Appellants flagrantly murdered the principles of fair hearing in terminating the Respondent’s appointment. He contended that the Appellants purportedly terminated Respondent’s appointment under Guidelines which had not come into effect. The Respondent was not given far hearing. Submitted further that the Respondent was not given fair hearing. The trial court was therefore right in his judgment that the Respondent was not given fair hearing. He contended that the procedures stipulated in Rule 04306 of the Public Service Rules are to the effect that the Respondent must be querried, invited to a panel and show whatever document and witnesses that might testify against him were substantially breached. He cited the cases of Kwara State Civil Service Commission v. Abiodun Supra at page 1327 ratio 17, Iderima v. Rivers State Civil Service Commission (2005) All F.W.L.R. part 285 at 431 and Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C. at page 40.

The Respondent pleaded that prior to the termination of his appointment, he was not issued any query nor made to appear before any disciplinary panel. The Appellants said he was querried, but failed or neglected to tender any querry even though they pleaded one. Appellant said the board of the 1st Appellant invited the Respondent but failed to give evidence of such invitation. Submitted that the learned trial judge rightly found that the Public Service Rules were not followed before the appointment of the Respondent was terminated and it rightly ordered his reinstatement and payment of all his entitlements.

Learned Counsel urged the Court to resolve issue two in favour of the Respondent.

The main contention under this issue is whether the Appellants accorded the Respondent fair hearing before the termination of his appointment. The Respondent who testified as P.W.1 at page 28 of the record stated in his evidence as follows:

“There was no allegation against me prior to my termination and I was not summoned before any Disciplinary Panel, I was not given any querry.”

At page 29 of the record, he continued in his evidence thus:

“The Public Service Rules regulates my appointment. The Defendants violated the Public Service Rules in the termination of my appointment. According to the Public Service Rules; I was supposed to be tried by a panel constituted for the purpose.

Secondly, the Defendants ought to notify or inform me in writing showing my offence consequent upon termination.

Thirdly, if there is an alleged offence. The Defendant ought to summon me to give evidence before the panel.

Fourthly, if anybody testifying against me, I was not allowed to make any representation.

The guidelines for reform of parastatals were published in March 2006 and it took effect from September 2006. Whereas my appointment had been terminated since November 2005.”

Rule 04306 of the Public Service Rules referred to by Learned Counsel for the Respondent states the conditions that must be complied with before an officer’s appointment can be terminated or dismissed.

Rule 04306 (1) states:

“The officer shall be notified in writing of grounds on which it is proposed to discipline him. The querry should be precise.”

More importantly sub rule (4) says:

“Where necessary, the commission may set up a Board of Inquiry which shall consist of not less than three persons.”

Appellants Statement of Defence at 18 of the record paragraph 4 states:

“Defendants in further reply to paragraph 8 above avers that Plaintiff had been issued 3 querries in the course of his employment, Copies of the querries are hereby pleaded and Defendants will rely on them at the trial of this action. Plaintiff is hereby given notice to produce the original”

Appellants failed or neglected to tender any querry even though they pleaded one. Appellant pleaded the Generic Guidelines for the Reform of Public Service as the basis for the termination of the appointment of the Respondent. They failed to tender same. Appellants admitted that the Guidelines for the Reform of Parastatals became operative in March 2006 but Respondent’s appointment had been terminated in 2005.

Respondent tendered exhibit D – Punch of Tuesday 10th July 2007. Page 5 therein states that the Guidelines for the Reform of the Public Service were to take effect in September.

In view of the testimony of the Respondent and the Appellant who did not tender the querries pleaded but went ahead to terminate the appointment of the Respondent before the reform took effect, can the procedure adopted for the termination of the Respondent’s appointment be said to have complied with the rules of natural justice? I think not. The importance of natural justice cannot be scuttled away within the administration of justice. The courts have always insisted on natural justice because it is the surest safeguard against injustice. The rule of natural justice of audi alteram partem simply means “hear the other side”. The rule of audi alteram partem postulates that the court or other Tribunal must hear both sides at every material stage of the proceeding before handing down a decision. It is a rule of fairness. A court or Tribunal or other body cannot be fair unless it considered both sides of the case as may be presented by the parties. See Akuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 N.W.L.R. part 65 at 472, Agbahomovo v. Eduyegbe (1999) 3 N.W.L.R. part 594 at 170, Orugbo v. Una (2002) 16 N.W.L.R. part 792 page 175 and Olufeagba v. Abdul-Raheem (2009) 18 N.W.L.R. part 1173 page 384 at 452 paras A – C and 454 para B.

In the instant case, the Respondent was not availed the opportunity to be heard, his termination or dismissal is null and void and of no effect. See Busari v. Edo State Civil Service Commission (1999) 4 N.W.L.R. Part 599 at page 365, Olaniyan v. Unilag Supra at page 599 and Eperokun v. Unilag (1986) 4 N.W.L.R. Part 34 at page 162. The provisions of the Public Service Rules are sine qua non for compliance before a valid termination of the Respondent’s appointment. Parties to an agreement or contract are bound by the terms and conditions of the contract they signed and cannot operate outside its terms and conditions. See Isherno v. Julius Berger Nig. Plc. (2008) 6 N.W.L.R. part 1084 page 582 at 609 paras G – H.

Since the Appellants have failed to properly avail themselves of complying with the procedure laid in the Public Service Rules to terminate the Respondent’s appointment, issue two is hereby resolved against the Appellants.

Issue Three

Whether the trial judge was justified in ordering reinstatement of the Plaintiff/Respondent.

Learned Counsel for the Appellant submitted that the 1st Appellant has the power to terminate the Respondent’s employment with or without any reason. He argued further that since the reason from the evidence is based on the need to restructure to reduce its expenditure; the 1st Appellant was justified in terminating the Respondent’s employment. He referred to the case of Nitel Plc v. Akume (2006) 1 F.W.L.R. part 285 page 61 ratios 3 where the court endorsed the position of the 1st Appellant that a master or an employer is entitled to suspend, retire, terminate or dismiss his or its servant/ employee appointment for good or bad reason or even for no reason at all.

He urged the court to resolve issue three in favour of the Appellant because an employer has no obligation to retain the service of any unwanted staff.

Learned Counsel for the Respondent submitted that in law once a court has come to the conclusion that the appointment of an employee is statutory flavoured and the conditions governing such an employment has been breached, the necessary order the court has to make is that of reinstatement and payment of the employees emoluments. He referred to the cases of Adefemiwa v. Osun State College of Education, Ilesa (2009) All F.W.L.R. part 456 page 1860 at 1862 ratio 4 and Kwara State Civil Service Commission v. Abiodun (2009) All F.W.L.R. part 493 page 1315 at 1367 paras D – E which stated as follows:

“Once the dismissal of Public Officers as the Respondents has been declared null and void, it is as if the Respondents were never dismissed and their contract of employment which was in the circumstance unilaterally repudiated still subsists and they were / are entitled to be restored to their status quo ante.”

Learned Counsel for the Respondent urged the court to resolve issue three in favour of the Respondent.

In the instant case, the Respondent has established through his pleading and evidence before the lower court that his employment has statutory flavour. The trial court found that the Respondent’s appointment had statutory flavour and I quite agree with the trial court.

He has also proved that his employment was wrongfully terminated because he was not issued any querry and was not summoned before any disciplinary panel as required by the Public Service Rules. It is therefore clear from the facts of this case that the Appellants are in breach of the Public Service Rules and therefore acted improperly or illegally. An employee with employment enjoying statutory flavour and whose employment was illegally terminated is entitled to reinstatement. A public servant can only be validly removed from service if the procedure prescribed by law was followed and once the dismissal or termination of appointment of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still a civil servant. See the cases of Eperokun v. Unilag (1986) 4 N.W.L.R. part 34 page 162 and Olufeagba v. Abdul-Raheem (2009) 18 N.W.L.R. Part 1173 page 384 at 440 paras A-C. In the instant case, therefore, the Respondent’s appointment with the 1st Appellant was governed by the Public Service Rules and the trial court rightly ordered his reinstatement when he was removed contrary to the laid down Public Service Rules. Issue three is hereby resolved against the Appellants.

Issue Four

Whether from the issues arising, the trial Court was justified in ordering payment of all salaries and allowances to the Plaintiff/Respondent.

Learned Counsel for the Appellant submitted that the main issue of the Plaintiff/Respondent having been rightly terminated succeeds, all other ancillary reliefs must fail.

Submitted that assuming but not conceding that the Plaintiff/Respondent was wrongly terminated, his remedy lies not in reinstatement or full entitlement from the termination but only in what he would have earned in the period of notice required to be given in this case, since there is no agreement or reasonable time. He referred to the case of Nitel Plc v. Akume (2006) 1 F.W.L.R. part 285 page 61 at 65. He urged the court to resolve issue four in favour of the Appellants and allow the appeal.

Learned Counsel for the Respondent adopted his argument on issue two which is issue three in the order of arrangement of the issues by the court. Learned Counsel for the Respondent urged the court to resolve issue four in favour of the Respondent and dismiss the appeal as lacking in merit.

As earlier stated, the termination of appointment of the Respondent is null and void. The effect of such pronouncement is that the Respondent was always and stills a Civil Servant. The Learned trial judge was right when he ordered the reinstatement of the Respondent. See U.B.N. Ltd. v. Ogboh (1995) 2 N.W.L.R. Part 380 at 647, Aiyetan v. N.I.F.O.R. (1987) 3 N.W.L.R. Part 59 page 48, Garba v. F.C.S.C. (1988) 1 N.W.L.R. Part 71 page 449 and Sapara v. U.C.H.M.B. (1988) 4 N.W.L.R. Part 86 at 58.

One cannot understand the refusal of the Appellants, to reabsorb the Respondent and the other workers whose appointments were wrongfully terminated, before the operation of the Guidelines for the Reform of the Public Service which the Appellants are clamouring on to for their defence. If they had complied, this matter would have ended or might not have seen the light of the day. I do not for one moment see why the Respondent should not be reinstated with his full salaries and allowances. This is how it should be and that is the law. Issue four is hereby resolved against the Appellants.

Since all the issues have been resolved against the Appellants, the appeal is dismissed as lacking in merit. Accordingly the judgment of the lower court delivered on the 28th of October 2009 is hereby affirmed. There shall be cost of N50,000.00 in favour of the Respondent against the Appellants.

JIMI OLUKAYODE BADA, J.C.A: I had the opportunity of reading in draft the Lead Judgment of My Lord MODUPE FASANMI, J.C.A, just delivered and I agree with My Lord’s reasoning and conclusion.

I also find the appeal unmeritorious and it is dismissed by me. I endorse the consequential orders made in the said Lead Judgment.

EJEMBI EKO, J.C.A: There had been four previous judgments on facts almost identical with the facts of the instant appeal and on the four issues which are identical with those in this appeal. In the four previous appeals the present Appellants were among the appellants in those cases. The four previous judgments of this court had consistently ruled on the four issues formulated for determination in this appeal. They operate as issues estoppel against the Appellants.

I have read in draft the judgment of my learned brother, MODUPE FASANMI, JCA and I am in complete agreement with his analyses and conclusions on the four issues. They are consistent with the four previous decisions of this court against these same Appellants. In view of those previous judgments and on the principles of stare decisis and issue estoppel I should think that the instant appeal is most frivolous and vexatious.

The four previous cases are as follows:

i. CA/EKT/22/2010: FEDERAL MEDICAL CENTRE, IDO-EKITI and 5 OTHERS V. DR. T.G. YAKEEN decided on 24th March, 2011.

ii. CA/EKT/23/2010: FEDERAL MEDICAL CENTRE, IDO-EKITI and 3 OTHERS V. SHUAIB ADEWOLE ALIBI decided on 24th march, 2010

iii. CA/AE/21/2010: FEDERAL MEDICAL CENTRE, IDO-EKITI and 3 OTHERS V. ISSAC OLUKAYODE OLAJIDE decided on 31st march, 2011.

iv. CA/AE/24/2010: FEDERAL MEDICAL CENTRE, IDO-EKITI and 2 OTHERS V. OMIDORA KOLAWOLE O. decided on 14th July, 2011.

This appeal makes the 5th of the appeals of these same appellants on facts that are very similar. The identical issues formulated and resolved in all these appeals, including the instant appeal, are as follows:

1. Whether the trial court was justified in holding that the Respondent’s employment is one with statutory flavor.

2. Whether the learned trial judge was justified in ordering reinstatement of the Respondent.

3. Whether the procedure adopted in terminating the appointment of the Respondent violates the rules of natural justice.

4. Whether from the issues arising, the trial court was justified in ordering payment of all and allowances to the Respondent.

In all the previous 4 judgments of this Court the four (4) issues above were resolved against the Appellants. In the instant appeal four (4) issues have been resolved against these same Appellants. Yet the Appellants, like the French Bourbons, have learnt nothing and had forgotten everything.

These Appellants, like the Pharaohs, are very stubborn in pursuing worthless cause. Only a litigant with a heart and mind of an impervious granite learns nothing from previous judgments and orders of a court of law. I expected these Appellants to have taken a very noble course of either withdrawing the appeal in view of the earlier decisions, or to announce their intent to be bound by the previous decisions. That would have been economical for all concerned, including this court.

I am not happy. The Legal Officer of the Appellants should convey our displeasure to the Appellants for wasting useful resources on this vain stubbornness. I hope a word will be enough on this.

I had indicated my agreement with the judgment just delivered by my learned brother, MODUPE FASANMI, JCA. The judgment, including all the consequential orders therein, is hereby adopted by me.

Appearances

Miss O. Olotu (L.O.)For Appellant

AND

Olabanjo Ayenakin Esq.For Respondent