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National Industrial Court

Mr. James K. Adebayo -VS- University Of Ilorin Teaching

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

Date: June 06, 2018                                                                           Suit No: NICN/IB/89/2014

Between:

Mr. James K. Adebayo                                            —————–                              Claimant

And

  1. University Of Ilorin Teaching

Hospital, Ilorin                                             —————-                                        Defendants

  1. University Of Ilorin Teaching

Hospital Management Board

Representation:

O.J. Adeseko for the claimant.

Y.O. Yaqub with Lanre Yahaya for the defendants.

 

COURT’S JUDGMENT

This is a transfer case from the Federal High Court, Ilorin and by his Amended Statement of Facts; the claimant is seeking for the following reliefs against the defendants:

  1. A declaration that the Claimant’s appointment with the Defendant still subsists, same having not been lawfully determined, hence he is entitled to continue his services to the Defendants.
  2. An Order compelling the Defendants, her agent, servant or privies to allow the Claimant to continue to perform his duties.
  3. An Order compelling or commending the Defendants to pay to the Claimant all his salaries, emoluments or allowances from December 2011 (or any other time) when the Defendants purportedly terminated his appointment with the Defendants up to the date or month of Judgment and to effect his promotion accordingly as he may be entitled.
  4. An Order setting aside the Defendants letter to the Claimant dated 12/12/2011 as being invalid in law.
  5. An Order of perpetual injunction restraining the Defendants either by themselves, their servants, agents or privies from terminating the services of the Claimant for no just cause.

Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their statement of defence together with other defence processes in compliance with the Rules of this Court.

The case of the claimant is that he was formerly employed as Plant Operator in the defendants’ Department of Works where he rose to become the Senior Foreman (Mechanical) Plant Operator of the defendants who were established by the Federal Government of Nigeria. He averred further that he was an employee of the defendants for 22 years before his contract of service was terminated by the defendants with only one month’s salary in lieu of notice and without any reason. The claimant again averred that the defendants did not follow their disciplinary procedures as stated in the Act that established them in terminating his appointment. The claimant concluded that because all his efforts to appeal to the defendants had proved abortive, he then instituted this suit.

In their pleadings, the defendants conceded that the claimant was their employee until his appointment was terminated by them. To them the employment of the claimant with them was wholly regulated and based on the letter of temporary appointment issued by them to the claimant and that the said appointment was terminated in line with the terms and conditions stated in the said letter. Hence, the defendant needed not to follow or resort to any disciplinary procedures before terminating the claimant’s employment. The defendants aver further that it is not part of the said terms and conditions that the claimant will be and/or remain in the employment of the defendants until he attains 60years of age or puts in 35years of service.

During hearing of the case, the claimant testified as CW.1 while the defendant called one Mr. Suraj Ayotunde Lawal as a witness and he testified as DW1. In line with the Rules of this Court, counsel were directed to file their final written addresses by the Court and they complied with the direction.

DEFENDANTS’ WRITTEN ARGUMENTS

Counsel to the defendants raised these issues for determination in his final written address:

  1. Whether having regards to the state of pleadings and evidence before this Honourable Court, the case of the claimant discloses any reasonable cause of action against the defendants.
  2. Whether from the facts and evidence before this Honourable Court, the claimant has been able to prove his case so as to be entitled to the reliefs sought.

 Arguing issue one, counsel submitted that the claimant’s claim did not disclose any reasonable cause of action against the defendants as he woefully failed to discharge the onus placed on him, citing Ibrahim v. Osin [1988] 1 NSCC 1184; Katto v. CBN [1999] 6 NWLR 390 at 405 and Savage & Ors v. Uwechia [1972] All NLR (Pt.1) 251 at 257. He went on that a careful look at Document C.1 (the claimant’s letter of temporary employment) will unambiguously show that both parties have unreserved right to terminate the contract of employment any time upon fulfilling the conditions stated in alternative therein. Counsel referred the Court to paragraphs 2 and 6 of the Amended Statement of Facts and to Documents C1, C4 and C6.

Counsel continued that Document C.1 gave both parties equal rights to terminate the employment contract between them at any time by giving the prescribed notice or by paying one month salary in lieu of notice. To counsel, there is no contrary evidence or averment before this Court to the effect that the right exercises by the defendants is not in line with the terms and conditions of contract of employment of the Claimant. He went on that throughout the averments in the Amended Statement of Facts; the claimant did not state any fact constituting infraction of the terms and conditions of his appointment with the defendants. He, thus; maintained that the case of the claimant lacks reasonableness/reason or has no cause of action against the defendant. More so that the defendants had paid to the claimant one month salary in lieu of notice in accordance with Document C1; therefore, the termination of the claimant’s employment by the defendants is not wrongful neither is it actionable, citing Layade v. Panalnina World Trans Nig. Ltd [1996] 6 NWLR (Pt. 456) 544 at 558.

Arguing issue two of whether the claimant has proved his case to the satisfaction of the Court, counsel submitted that the claimant has failed woefully to prove his case so as to be entitled to the reliefs contained in paragraph 19 of his Amended Statement of Facts. To counsel, it is trite that he who alleges must prove, citing S.131 (1) & (2) of the Evidence Act and the cases of Gbafe v. Gbafe [1996] 6 NWLR (Pt.455) 417 at 432; N.A.B. Ltd v. Abdullahi [2000] 6 NWLR (Pt.) 549 at 556 and Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 AND 370.

Counsel continued that the claimant pleaded and tendered Document C1, which contains the terms and conditions of his employment but failed to point out which part of the terms of employment has been breached by the defendants so as to entitle him enforce the said right against the defendants; citing Ibama v. SPDC (Nig.) Ltd [2005] 17 NWLR (Pt.954) 364 at 379 and Western Nigeria Development Corporation v. Abimbola [1966] 4 NSCC 172.

Counsel contended that the claimant’s allusion of his employment having statutory flavor and the need for him to face some disciplinary procedures is also a figment of the claimant’s imagination as same is also not proved in evidence. Counsel went on that it is trite that pleadings not supported by evidence go to no issue. That interestingly, the claimant stated under cross examination that he was aware of his right to determine or terminate his employment with the defendants any time he deemed fit in accordance with the terms and conditions of his employment contained in Document C1 but that it is this same right; which both parties enjoyed under document C1, that the claimant is challenging in this Court because the defendants exercised it. To counsel, the claimant’s admission under cross examination and his Letters of Appeal to the defendants vide Documents C5 and C5 (b) point to the fact that the claimant perfectly understood the terms and conditions of his employment regarding termination of the appointment.

In addition, counsel submitted Document C5 (a) is not relevant to the issue in controversy and same having no relationship with pleaded fact(s) as the averments in paragraphs 13 and 16 of the claimant Statement of Fact, suggesting that his appointment has statutory flavour is not supported by evidence. He went on that it is trite that averments in pleadings on which no evidence is adduced are deemed to have been abandoned, citing Ifeta v. S.P.D.C (Nig.) Ltd [2006] 8 NWLR (Pt.983) 585 and 600-601; Fakuade v. O.A.U.T.H [1993] 5 NWLR (Pt. 291) 47 at 63 and Adegbite v. College of Medicine, University of Lagos [1973] 5 SC.

Finally counsel submitted that the claimant has failed to substantiate his allegations as contained in his Amended Statement of Facts and the Court would not allow him to make out a case outside Document C1 under which he has benefited and under which his appointment was terminated.

CLAIMANT’S WRITTEN ARGUMENTS

In his final written address for the claimant, his counsel formulated the following issues for determination of the court:

  1. Whether the termination of the claimant’s appointment by the defendants was legally done or in compliance with the enabling Act and Regulations of the defendants.
  2. Whether the claimant has successfully proved his case by placing credible evidence before the Court, thereby entitling him to the reliefs sought.

Arguing the first issue, counsel submitted that termination of the claimant’s appointment was legally wrong. Needless to say that the claimant was employed by the University of Ilorin Teaching Hospitals Management Board on the 10th July, 1989 through Exhibit C1 as a Plant Operator on a temporary basis. However, on the 15th August, 1999 the claimant received a letter of confirmation of his employment (Exhibit C2); which then changed the employment status of the claimant in Exhibit C1 to an employment with statutory flavour according to his counsel. In other words, because of the content of Exhibit C.2, the relationship between the claimant and the defendants was no longer that of master and servant under the Common Law but now an employment with statutory flavour. Counsel maintained that with the contents of the various exhibits especially Exhibits C2 and C3 before the Court, the employment of the claimant could no longer be governed by the conditions stated in his of temporary employment (Exhibit C1).

Counsel noted that the 1st defendant is a Parastatal under the Federal Government of Nigeria; therefore, the defendants are governed by the Public Service Rules, 2006; particularly Rules 160101-160103 and the provision of the University Teaching Hospitals (Reconstitution of Boards etc.) Act, 1985 LFN Cap U15. He further contended that the claimant’s employment enjoys statutory flavour, the issue of compliance with the laws regulating his employment come in view; citing Idioniboye–Obu v. NNPC [2003] 2 NWLR (Pt. 805) 582 @ 647; Bamigboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) Pg. 299 @ 298-299; Oloruntoba-Oju & 4 Ors v. Abdul-Raheem & 3 Ors [2009] Vol. 39 NSCQR pg. 105 @ 164 paras D-E.

Referring to Rule 020810(i) of the Public Service Rules, 2006; counsel submitted that by Exhibit C4, the defendants gave no reason for the termination of the claimant’s employment neither did they give evidence, showing the laid down procedure followed; it was again not explained that the claimant had served the defendants for 35 years or he had attained the age of 60 years, referring to the testimony of Sarajudeen Ayodele Lawal under cross examination; the only witness of the defendants.

In addition, counsel submitted that since the claimant’s employment with the University of Ilorin Teaching Hospital Management Board as a Senior Foreman was confirmed, his employment can only be terminated in compliance with the provision of section 9(1) of the Act; citing University of Ilorin Teaching Hospital Management Board & 1or v. Matthew Olufemi Oloruntola [2007] All FWLR (Pt. 370) pg. 1415 @ 1439, paras G-B.

Arguing issue two of whether the claimant is entitled to the reliefs sought, counsel submitted that it is trite that he who alleges must prove, citing Section 131 (1) & (2) of the Evidence Act. To counsel, the claimant has made out a case, entitling him to the reliefs sought and that this case has disclosed a reasonable cause of action against the defendants; considering the pleadings and the evidence presented to the Court by the claimant vis-a-vis the Exhibits tendered; citing Adekoya v. FHA [2008] 34 NSCQR 952@963

Counsel argued further that, the moment the appointment of the claimant was confirmed, he is no more on probation and that the defendants are mandatorily required to comply with both Public Service Rules and the provision of the University Teaching Hospitals (Reconstitution of Boards etc.) Act, 1985 LFN U15. He maintained that the content of Exhibit C1 would have come to play if it the claimant’s employment was terminated without any reason during his probation period, while his employment was still temporary. But with the coming in or issuance of Exhibit C2 to the claimant by the defendants confirming his appointment, the defendants must comply with all the Enabling Rules and Act. Counsel referred the Court to Ibrahim v. Osim [1998] 3 NWLR (Pt. 82) 271-272; Asoboro & Anor v. Pan Ocean Oil Corp & Anor [2017] 1 M.J.S.C (Pt. I) page 1 at 16 paragraphs G-F and the provisions of Rules 020203 and 020204 of Public Service Rules, 2006. Counsel urged the Court to hold in the claimant’s favour.

Counsel to the defendants filed reply on points of law and submitted that the case of Idoniboye – Obu v. NNPC [2003]1 SCNJ 87: [2003] 2 NWLR (pt. 805) 582 cited by the claimant’s counsel did not support the argument of the claimant in any way on the point that the employment of the claimant with the defendants is clothed with statutory flavour by virtue of the provision of Public Service Rules, 2006 or those in the University Teaching Hospital (Reconstruction of Boards, etc.) Act. Rather the said case supports the case of the defendants hitherto as it is an authority affirming the termination of the claimant’s appointment by the defendant as properly and validly done. He continued that the provisions of the Public Service Rules and the said Act cannot endow the employment of the claimant (in the instant case) with statutory flavour and urged the Court to so hold.

Contrary to the Claimant’s submission, inviting the Court to treat the case of the claimant in the like of the cases of Bamigboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 299; [1999] 6 SCNJ 295; Oloruntoba – Oju & 4ors v. Abdul-Raheem & 3ors [2009] Vol. 39 NSCQR 105 and University of Ilorin Teaching Hospital Management Board & 1or v. Mathew Olufemi Oloruntola [2007] All FWLR (Pt.307)1414; counsel submitted that these cases cited by the claimant in his final written address are distinguishable and distinctly different from the case of the claimant herein. On the authority of the cases of Fakuade (Supra) Idoniboye – Obu (Supra) and Ihabuhmb v. Anyip (Supra), the defendants’ counsel submitted further that the provision of Public Service Rules 020204 and 020203 cannot usurp or obliterate the existence of Document C1 and that there is nothing to suggest that Document C2 will be read in isolation of C1; he urged the Court to so hold

COURT’S DECISION

I have gone through the facts of this case as pleaded by the parties including their testimonies before the Court and the written arguments of their counsel together with their cited authorities. From all of these, I am of the considered view that following issues need to be resolved in this matter:

  1. Whether or not the claimant’s employment is one with statutory flavour
  2. Whether or not the claimant is entitled to the reliefs he is claiming, which are essentially:
  3. Declaration that the termination of his employment is illegal, null & void and to set the termination letter aside.
  4. Re-instatement to his employment
  5. Payment of his salaries and allowances from December 2011 until the day of this judgment.

Before going to the merit of this case, I need to resolve a preliminary point raised by counsel to the defendants who contended that the case of the claimant does not disclose any reasonable cause of action against the defendants. In the case of Unijos v. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478, it was held that “cause of action” are facts, which when proved will entitle a plaintiff to a remedy against a defendant. These facts are discernible by a resort to the writ of summons and the statement of claim including other relevant evidence alleging when the wrong was committed, which gave rise to the cause of action.

In paragraphs 5, 6, 7, 8 and 10 of the Amended Statement of Facts at pages 224 to 226 of the record, the claimant’s averments are to the effect that he was an employee of the defendants who worked diligently with them for over 20years. He went on that his employment which was backed up by the provision of a statute was however, suddenly terminated by the defendants without any reason and without following the laid procedure for the said determination. These are facts that when proved to the satisfaction of the Court, will entitle the claimant to a remedy in my considered view. Therefore, I find and hold that the claimant’s case before the Court, disclosed a reasonable cause of action against the defendants.

IS THE CLAIMANT’S EMPLOYMENT WITH STATUTORY FLAVOUR?

In paragraphs 1, 1(a), 2, 3 and 4 of his Amended Statement of Facts, the claimant avers that even though he was initially given temporary appointment by the defendants, his employment was eventually confirmed and he became a pensionable employee of the defendants, who got promoted to the post of a Senior Foreman (Mechanical) Plaint Operator of the Defendants. He went on that the defendants are creations of the University Teaching Hospitals (Reconstitution of Boards etc.) Act 1985 LFN U15 and that his employment as a confirmed employee of the defendants is also regulated by the same law. See pages 224 to 228 of the record for the pleadings.

By Paragraph 1 of the Statement of Defence, the defendants admitted paragraphs 1 to 3 of the Statement of Facts and it is trite that facts admitted need no further proof. See the cases of Baalo v. FRN [2016] LPELR-40500(SC) and Ume & Ors v. Ibe [2016] LPELR-40080(CA). The effect of this admission is that both parties agreed that the claimant was a confirmed and a pensionable employee of the defendants, who got promoted to the post of a Senior Foreman (Mechanical) Plaint Operator of and by the Defendants. The parties also agreed that the defendants are creations of the University Teaching Hospitals (Reconstitution of Boards etc.) Act 1985 LFN U15 and I so find.

Section 5 of the University Teaching Hospitals (Reconstitution of Boards etc) Act, 1985 LFN U15 is on Appointments of Chief Medical Director, Director of Administration and other staff of the defendants. The provision in section 5 (5) of this Act is on general power of the Board to appoint, promote, transfer, confirm appointments and also to terminate or discipline employees (including consultants) holding or acting in any office in the Hospital. Section 7(1) (b) of the Act is on “functions of the Board”, which is to construct, equip, maintain and operate such training schools and similar institutions as the Board considers necessary for providing the Hospital at all times with a proper staff of Hospital Technicians and Nurses; while section 9 of the Act is on removal and discipline of clinical, administrative and technical staff of the defendants.

In essence, therefore; I again find that the operation of the defendants (University of Ilorin Teaching Hospital, Ilorin and the University of Ilorin Teaching Hospital Management Board) are strictly guided and regulated by the provisions of the University Teaching Hospitals (Reconstitution of Boards etc.) Act 1985 LFN U15 and that the two defendants cannot operate outside the provisions of the Act.

By Document C.1 of July 10, 1989; the 1st defendant gave the claimant an appointment as a Plant Operator on a temporary basis and this appointment was confirmed vide Document C.2 on August 15, 1991. See pages 241 & 242 of the record for copies of these documents. With the confirmation of the claimant’s appointment as shown in Document C.2; his appointment as Plant Operator of the University of Ilorin Teaching Hospital became covered by the provision of section 7(1) (b) of the Act. This is because the claimant service at the material time provided the Hospital with Technical assistance. Being a technical staff of the defendants, the claimant’s appointment can only be determined in compliance with the provision of section 9 of the Act. In other words, the claimant’s appointment with the defendants and determination of same are covered by the provisions of sections 7 (1) (b) and 9 of the University Teaching Hospitals (Reconstitution of Boards etc.) Act 1985 LFN U15 as shown above. In the case of NEPA v. Adesaaji [2015] 58 NLLR (Pt. 202)498 CA 545-546, paragraphs B-C; Adekeye JCA held thus:

Where the conditions for appointment or the determination of a contract of service are governed by the pre-condition of an enabling statute or Decree so that valid determination of appointment is predicated on satisfying such statutory provisions, such contract is one with a statutory flavour.

From the findings of the Court in this instant case, the appointment of the claimant is covered by section 7 (1) (b) of the Act while his removal/determination of his employment is to be in accordance with the provision of section 9 of the Act. It means that the conditions for appointment or the determination of the claimant’s contract of service are governed by the pre-condition of an enabling statute; the provisions of the University Teaching Hospitals (Reconstitution of Boards etc.) Act. Consequently, I hold that the employment of the claimant with the defendants in this instant case is with statutory flavour.

Counsel to the claimant copiously referred the Court to the provisions of the Public Service Rules, 2006 and addressed the Court as supporting his contention that the claimant’s employment has statutory flavour. In view of the comprehensive provisions of the University Teaching Hospitals (Reconstitution of Boards etc) Act, 1985 LFN U15 on the issue in question; which are direct and peculiar to the parties, I am of the considered view that the Public Service Rules, 2006 are not applicable to this case. All arguments on these Rules either for or against by counsel to the parties are accordingly discountenanced in this judgment.

WHETHER THE CLAIMANT IS ENTITLED TO HIS RELIEFS:

  1. Was the claimant’s employment rightly terminated?

Document C4 is the Letter of Termination of the claimant’s employment; it is at page 244 of the Court’s record. It was issued on December 12, 2011 and signed by one Prof. A.W.O. Olatinwo, Chief Medical Director. Paragraphs 1 & 2 of this letter state:

I write on behalf of Management Board to inform you that your services with the University of Ilorin Teaching Hospital are no longer required. Consequently your appointment is hereby terminated, effective immediately.

In line with the terms of your appointment the hospital shall pay you one month salary in lieu of notice. You are hereby requested to present at the Account and Finance Department for the payment accordingly.

Section 9 (1) of the University Teaching Hospitals (Reconstitution of Boards, etc) Act provides the procedure for removing or determining the appointment of the claimant who was a technical staff of the defendants this way:

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

  1. give notice of those reasons to the person in question;
  2. afford him an opportunity to make representations in person on the matter to the Board; and
  3. if the person in question so requests within a period of one month beginning with the date of the notice, make arrangements
  4.             for a committee to investigate the matter and report on it  to the Board and
  5.             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.

I have already held above that the claimant was a technical staff of the defendants. From the content of the letter of termination of appointment (Document C.4) reproduced above, no reason was given for the termination of the claimant’s appointment; contrary to the requirements stated in section 9(1) of the Act. The Law is settled that an employment with a statutory flavour must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination of the said employment, which is inconsistent with that relevant statute is null and void and of no effect. See the case of Ahmed v. ABU & Anor [2016] LPELR-40261(CA).

In the instant case, there is no evidence of compliance with the provision of section 9 (1) of the Act. This Law requires that the claimant’s employment must be determined by the Board with reason but none was given. It requires that prior to the determination, the Board should allow the claimant to make representation on the alleged reason to the Board in person before he is removed from office and if needs be, set up a Committee to investigate the allegation and give the claimant opportunity of appearing before and being heard by the Investigating Committee. Thereafter, if the Board is satisfied with the report of the Committee against the claimant, then the Board is to remove him. The defendants did not comply with any of the provisions of section 9 (1) of the Act at all in terminating the employment of the claimant in the case at hand.

Consequently, I hold that the termination of the claimant’s appointment by the defendants was flagrantly in violation of the provision Section 9 (1) of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act. Hence, I further hold that the said termination is illegal, null and void and of no effect. The termination of the claimant’s employment vide Document C.4 is accordingly set aside.

  1. Is the claimant entitled to Re-instatement & c. payment of his arrears of salaries and allowances?

The termination of the claimant’s employment vide Document C.4 has been declared null & void and of no effect and it has been set aside in this judgment. The consequence of this is that the termination never took place and that the claimant has never left his employment. For instance, in the recent case of University of Ilorin & Ors v. Dr. Mrs. Aize I. Obayan unreported Suit No: SC.35/2006, the judgment of which was delivered on February 2, 2018; the Supreme Court held inter alia that:

Although Exhibit 25, which is the Revised Regulations governing the conditions of service of Senior Staff of the University of Ilorin provides for termination of appointment since there is evidence that the respondent is a senior staff of University of Ilorin, her employment could not be treated as a mere master and servant relationship whereby her service could be dispensed with at will. — I find that this appeal is totally devoid of any merit and it is accordingly dismissed. I further affirm the judgment of the lower Court delivered on 10 March, 2005; which ordered the respondents (now the appellants) to reinstate and restore the plaintiff to her post as a lecturer and Reader in the Department of Guidance and Counseling of the University and to restore to her all rights, entitlements and other perquisites of that office and to pay to the plaintiff all her salaries, allowances and other entitlements from September 1999 to date. For the avoidance of doubt, the plaintiff is still in the service of the University of Ilorin.

 See also the recent judgment of this Court in the case of Samuel Adetunji Adeleke v. Water Corporation of Oyo State & 3 Ors, unreported Suit No: NICN/IB/64/2014 delivered on April 12, 2018.

The above reproduced decision of the Supreme Court together with the decision of this Court in the case of Adeleke v. Water Corporation & 3 ors (supra) are binding on this Court. Therefore, I hold that the claimant is entitled to be re-instated to his employment and that he is entitled to his salaries and allowances from December 12, 2011 when he was illegally terminated from his employment, to today; June 6, 2018 when this judgment was delivered. I accordingly order that the claimant shall be re-instated to his employment as the Senior Foreman (Mech.) of the 1st defendant on salary scale HATISS 06 step 2 and that his salary arrears be paid from December 2011 to today. The defendants are to pay the judgment sum together with the cost of N60,000.00 to the claimant within 60 days from today.

Judgment is entered accordingly.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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