IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 3RD MARCH, 2017 SUIT NO: NICN/CA/56/2015
BETWEEN:
- MICHAEL BASSEY ASUQUO CLAIMANT
AND:
UNIVERSITY OF CALABAR TEACHING HOSPITAL DEFENDANT
REPRESENTATION:
- N. NACHAMADA for the claimant with CHRIS EKONG Esq.
CHIEF OROK IRONBAR for the defendant
J U D G E M E N T
The claimant, by a General Form of Complaint filed on 20th November, 2015 accompanied by his Statement of Facts, Claimant’ Written Statement on Oath, List of Witnesses and List of Documents, approached the Court for the following reliefs:
- A DECLARATION that the claimant’s employment has statutory flavor.
- A DECLARATION that the termination of claimant’s employment is unlawful.
- AN ORDER re-instating the claimant to the post which he ought to have been without of Step.
- #47,393.13 being claimant’s unpaid salary for the month of June, 2013.
- #282,174 being the claimant’s promotion arrears.
- #63,733.35 being the claimant’s under-payment from January to May, 2015.
The defendants filed their STATEMENT OF DEFENCE filed on 24th February, 2016.
The defendant admit that the claimant was employed as a Security Guard and averred that it does not automatically convert a security guard to an accounts officer and that the conversion was because of the representation made to the defendant by the claimant of his ability to function in the accounts department and his acquired qualification. The Defendant stated that the observation and subsequent Audit Report made by the Audit Department indicting the claimant of Financial Impropriety covered the period between January to March, 2013. And that the misconduct complained of involved the claimant and other staff in his Accounts Department and that the defendant did not and does not owe the claimant a duty to disclose the outcome of the investigation.
In response to paragraph 20 of the Statement of Facts, defendant averred that the claimant’s appointment was terminated on 24th April, 2015 and that an offer to pay one month salary in lieu of notice was not made but that actual one month’s payment was effected in line with the agreement as contained in his offer of employment letter.
Answering paragraph 27 of the Statement of Facts, defendant averred that claimant is not entitled to the reliefs therein.
At the trial the claimant testified as CW, adopted his written statement on oath of 19th November 2015 and proceeded to tender 20 other exhibits. Under cross examination CW, testified that he was employed in 1999 by the defendants that Exhibit C3 was the basis of his employment. He further testified that his salary was 52, 510.50 and that he was not paid his salary for the month of June 2013, and under paid his salary in January and May 2015. When asked if he had anything in court to show that he complained. CW replied, No and that his complaint was verbal.
The defendants called one witnesses Ede The defendants called one Ededet Eyoma the Director of Human Resources of the defendant who testified as DW, adopted his written statement on oath which was marked Exhibit D1, and went on to tender twelve other documents Exhibit D2-Exhibit D13. Under cross examination DW testified that there was an instance of financial impropriety in their establishment and that it was unraveled by the Audit department and the claimant was invited to appear before the investigation panels three times. DW identified the three invitation letters, Exhibits C17, Exhibit C13-C13(1) and stated yes to the questions that none of the three invitation letters indicated that the claimant was a suspect, nor did they mention he was indicted, neither did they mention the words ‘allegation against some staff’ neither did they call for written explanations, DW went on to stated that the Audit report was not forwarded to the affected staff a that some staff he further testified that by the contents of these exhibits the claimant would know that the allegation would feature in the chat. DW also testified that the Federal Public Service Rules apply to the claimant.
At the close of trial parties were directed to file their final written addresses in line with the rules of this court.
DEFENDANT’S FINAL WRITTEN ADDRESS filed on 1st November, 2016 and dated 31st October, 2016.
ISSUES
- Whether the claimant has presented a case strong enough to entitle her to judgment.
- Whether claimant’s employment was properly terminated.
Learned Counsel to the defendants Chief Orok Ironbar Esq. submitted that having known the state of the evidence, the procedural law is that – he who alleges proves. SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (2016) 7 NWLR (PT. 1511) 284.He submitted that it is also known that pleadings do not constitute evidence as decided in the case of WAZIRI & ANOR. V. GEIDAM & ORS. (2016) 2 MJSC (PT. 111) 83 @ 124, PARAS. F-G Coram, Peter-Odili, JSC.
Defence Counsel argued that claimant only alleged that his termination did not come from the proper authority, posing the question: “what is the proper authority”. He contended that if it is only the Board that can terminate her employment, where was that proved on record?, as he who alleges proves. OJU v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 @ 136, PARAS. F-H; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150. Submitting that being a contract of employment, it is the only contract before the Court that must be complied with i.e. Exhibit C3. IDONIBOYE OBU v. NNPC (2003) 2 NWLR (PT. 805) 589; (2003) 4 MJSC 131.He submitted that whether the reports of investigation were communicated to claimant or not does not stop the defendant from terminating her employment. AJAYI v. TEXACO NIG. LTD. & 2 ORS. (1987) 9-11 SC 1 @ 6.
It is Defendant’s counsel’s contention that the fact that claimant responded to the queries means that he was afforded fair hearing. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648, PARA. F Coram Rhodes-Vivour, JSC; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. And that by Public Service Rules under Paragraph 030402 and Chapter 3 Sec. 4 Paragraph 030407 (a), “claimant was even lucky not to have been dismissed outrightly”. He submitted that it is not necessary nor a requirement under the extant laws that before an employer summarily dismisses his employee from his service, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty bordering on criminality. S.B. OLANREWAJU v. AFRIBANK PLC (2001) FWLR (PT. 72) 2008.
Defendant’s Counsel argued that the claimant as part of the failure of his case provided no proof or reference to the law allowing him to be reinstated when the law is that an employee cannot be force upon an unwilling employer. OYEDELE v. IFE U.T.H. (1990) 6 NWLR (PT. 155) 194 C.A.; IWUCHUKWU v. NWOSU (1994) 7 NWLR (PT. 357) 379.
The CLAIMANT’S FINAL WRITTEN ADDRESS filed on 23rd November, 2016 and dated same day. With the following ISSUE
Whether the claimant has proved his case to the extent to be entitled to the reliefs sought.
Learned Counsel to the claimant F. N. Nachmada Eq. submitted that the power to remove or discipline Senior or Junior Staff of the defendant is vested in the Board and the Chief Medical Director respectively – Sections 9 and 10 of the University Teaching Hospital (Reconstitution of Board, etc.) Act, making the defendant a creation of statute. However, that the fact that an employer is a creation of statute does not mean all its employments have statutory flavor. IKHILE v. F.A.A.N. (2014) 44 NLLR (PT. 139) 164 @ 192 – 193, PARAS. B-A; PHCN v. OFFOELO (2014) 41 NLLR (PT. 126) 167 @ 208 – 209, PARAS. H-B. Claimant Counsel agreeing with the defendant’s citing of the case of OLORUNTOBA-OJU v. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150, argued that though that is the position of the law, it however does not apply in the instant case.
It is counsel’s submission that since the claimant’s employment is governed by legislations, the claimant’s employment is not only statutory but has constitutional force and can only be terminated in line with the statutes. SHITTA-BEY v. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2015) 16 NWLR (PT. 951) 378; UDONSEK v. AKWA IBOM STATE GOVT. & ORS. (2015) 56 NLLR (PT. 188) 372 @ 412, PARAS. B-C. Counsel to the claimant contended that it is where the Board of the Chief Medical Director has made up its mind that prima facie case has been made out from the report of the investigation panel that the claimant would be accorded fair hearing before termination of employment. BABA v. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT. 192) 388 @ 416, PARAS. C-D; OTUKADEJO v. NIGER DOCK NIG. PLC (2015) 52 NLLR (PT. 173) 61 @ 84, PARS. D-E; OLORUNTOBA-OJU v. ABDUL RAHEEM (2009) 13 NWLR 9PT. 1157) 83 @ 146, PARAS. F-A. He submitted that where the employer did not comply with the condition precedent, that is fair hearing, he forfeits his right to dismiss and any alleged dismissal is a nullity. NEPA v. ANGO 92015) 59 NLLR (PT. 204) 160 @ 218, PARAS. B-D; TAMTI v. NCSB (2009) 7 NWLR (PT. 141) 654. Submitting that the fact that a party appeared before a panel does not ipso facto mean that he was given fair hearing, there has to be more than just an appearance before a panel. ENGR. AKONJOM NSED AYIP v. INEC Suit No: NICN/CA/166/2013 delivered on 19/09/2016 at page 1, per Hon. Justice E.N. Agbakoba. He argued that while the case of IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648 remains the law, it does not apply to the instant case.
The defendants filed their REPLY TO CLAIMANT’S FINAL ADDRESS filed on 25th November, 2016 and dated 24th November, 2016.
Defence Counsel argued that Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15 relied on by claimant refers to the removal and discipline of clinical, administrative and technical staff, which does not include claimant who was employed by his own letter of appointment tendered as Exhibit C3, as Senior Security Man. Furthermore, that she led no evidence to prove that she fell into any of the 3 categories and that the Court cannot be left to decide on conjecture.
On 6th December 2016 parties adopted their Final Written Addresses and adumbrated their respective positions. This matter was adjourned for judgment.
Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is the issue as formulated by the claimant: Whether the claimant has proved his case to the extent to be entitled to the reliefs sought or more simply put; whether the claimant is entitled to the reliefs sought.
The claimant is claiming the following reliefs in this court;
- A DECLARATION that the claimant’s employment has statutory flavor.
- A DECLARATION that the termination of claimant’s employment is unlawful.
- AN ORDER re-instating the claimant to the post which he ought to have been without loss of Step.
- #47,393.13 being claimant’s unpaid salary for the month of June, 2013.
- #282,174 being the claimant’s promotion arrears.
- #63,733.35 being the claimant’s under-payment from January to May, 2015.
Relief 1, 2 and 3 are for declarations as to; the nature of the claimants appointment, that the termination is unlawful, an order reinstating him without step.
Relief 4-6, are for unpaid June 2013 salary, arrears o promotion and underpayment for thr months of January – May 2015.
With regard to reliefs 1, 2, and 3, in order to ascertain whether the claimant is entitled to these reliefs the court is required to determine the nature of the claimant’s employment relationship with the defendant. This is so because the answer to most of the issues raised in this appeal will depend on the nature of the contract of employment between the parties.
The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment
(a) Purely Master and Servant relationship
(b) Servants who hold their office at the pleasure of the employer
(c) Employment with statutory flavour….”
The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C
In SULIEMAN ADAMU Vs. MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.
In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B.
In the instant case the claimant has tendered Exhibit C2 reproduced below:
UNIVERSITY OF CALABAR TEACHING HOSPITAL
P.M.B. 1278
CALBAR, NIGERIA
OUR REF UCTH/P/2787 18th October 1999
Mr. Michael B. Asuquo
C/o Chief Security Officer
UCTH-Calabar.
OFFER OF APPOINTMENT
I am pleased to write on Behalf of the Board of Management of the above Teaching Hospital to offer you the post of SENIOR SECURITY MAN at the Hospital on a commencement salary of N16,764.00 per annum in the salary HATISS 3/1 with effect from date of your assumption of duty.
- This offer of appointment is subject to your being passed mentally fit for service with the Teaching Hospital.
- It is a condition of employment that members of the Medical Profession employed by the Board should be members of a recognized Medical Defence of protection organization.
- This appointment will except where your services are transferred after a previous confirmation, be on probation for two years or for longer period as may be deemed advisable after which it will be confirmed one pensionable terms.
- The duties of the post shall include the usual duties of this office in which you are engaged and any other suitable duty the Board may call upon you to perform. You shall not either directly or indirectly engage in or be concerned with any other service or business whatsoever or receive commissions or profit of any kind but shall devote the whole of your time and attention to the service of the Board and shall use your utmost exertion to promote the interest of the Teaching Hospital. You shall conform to the rules and regulations of the Board in so far as the same are applicable.
- You shall be entitled to 30 days Annual leave to be taken by arrangement with your Head of Department and the written approval of the Director of Administration on the recommendation of your Head of Department.in addition you may be granted not more than one week casual leave per anum by the Director of Administration on the Recommendation of the Head of your department
- Unless you are dismissed and provided you are not on any bond to serve the Hospital for a stipulated period you may terminate your engagement by a month’s notice in writing or by the payment of one month’s salary in lieu of such notice. The Board of Management may also terminate your appointment by giving you one month’s notice or pay one month’s salary in lieu of notice
- You will be subject in all respects to all the conditions of service stipulated from time to time by the Board of Management.
- If you are prepared to accept this offer, I shall be glad if you do so in writing within one month of the date of the offer and at the same time indicate a date upon which you would be prepares to assume duty. This offer of appointment will lapse if not taken up within one month.
Yours faithfully,
(Signed)
- B. ETA
For: Director of Administration.
In the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) where the court of Appeal held that “In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of KWARA STATE POLYTECHNIC ILORIN V. SHITTU (2012) 41 WRN 26. And in the case NEW NIGERIA NEWSPAPERS LTD V. ATOYEBI (2013) LPELR-21489 (CA) where the Court of Appeal said this of employment with statutory flavour: “In employment with statutory flavour, that is, employment governed by statute where procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”See also OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787, OLORUNTOBA OJU V. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per Mbaba, J.C.A. (pp. 16-18, PARAS. G-C).
The claimant had pleaded that his appointment was governed by an act of the National Assembly, the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Cap 463 LFN 2004 in its schedule lists the defendants as No. (i) and Section 1 o the said act constitutes a Board of Management to have the functions and powers set out in the Act.
Section 5 provides that “(5) subject to this Act, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointments), advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital; and any such appointment shall be made having due regard to any personnel establishment approved for the hospital”.
The claimant also tendered Exhibit C3-C9 his pay slip for the month of June 2015, His Re Designation letter, His Confirmation of Appointment Letter, two promotion Letters, His Letter of Conversion and his Letter of upgrading and Conversion, as well as other exhibits relating to his pay and promotion in furtherance of his appointment. He did not however tender the condition of Service of the Board of Management if any.
From the foregoing I find that the claimant has provided enough evidence to enable the court hold that his appointment is one of statutory flavour.
It was held by the Court of Appeal in “ P. O. U. IYASE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (2000) 2 NWLR (Pt.643), pg. 47” Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particular evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure.. “Per IBIYEYE, J.C.A. (P. 18, paras. B-E).
“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee..” UDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR (2010) LPELR-3824(CA) Per Odili, JCA (P. 17, paras A-B)
Looking at the pleading and particularly the evidence adduced I am satisfied that the claimant has tendered all relevant evidence to show that he was statutorily employed R. UDUAK BERNARD OKON v. THE GOVERNOR OF AKWA IBOM STATE & ORS (2013) LPELR-22112(CA)
Having determined the status of the claimant the next thing on board is to look at the propriety of his termination.
The letter of termination; Exhibit C18 is itself reproduced below:
UNIVERSITY OF CALABAR TEACHING HOSPITAL
P.M.B. 1278 CALBAR, NIGERIA
Our Ref. UCTH/P/2787/66 24th August 2015
Michael Bassey Asuquo
u.f.s. Deputy Director (Finance & Accounts)
Accounts Department
U.C.T.H.
Calabar
Sir
TERMINATION OF APPOINTMENT
I am directed to refer to your contract of engagement contained in clause 7 of your appointment letter and accordingly terminate your appointment with the University of Calabar Teaching Hospital with immediate effect since your services are no longer required. You will however be paid one month’s salary in lieu of notice.
You are therefore to hand over all Hospital property and or documents including your staff Identity Card to your Head of Department.
By a copy of this letter, the DDF/A has been directed to stop your salary / allowances with immediate effect.
(Signed)
Ededet Eyoma
Deputy Director (Human Resources)
For Director
Now, the University Teaching Hospitals (Reconstitution of Boards etc.) Act, in Section 9 provides as follows;
(9) Removal and discipline of clinical, administrative and technical staff
(1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the hospital, other than the Chief Medical Director, should be removed from this office or employment, the Board shall require the secretary to –
(a) give notice of those reasons to the person in question;
(b) afford him an opportunity of making representations in persons on the matter to the Board; and
(c) if the person in question so requests within a period of one month beginning with the date of the notice, make arrangements –
(i) for a committee to investigate the matter and report on it to the Board;
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.
And if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board”.
To begin with the defendants made heavy weather of the argument that the claimant did not show the court how by his employment she was either Clinical, Administr
