MRS. ROSE E. EFURIBE V. DR. G.M. UGBAM & ORS. (2010)

MRS. ROSE E. EFURIBE V. DR. G.M. UGBAM & ORS.

(2010)LCN/3758(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of April, 2010

CA/PH/56/2006

Before Their Lordships

ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

Between

MRS. ROSE E. EFURIBEAppellant(s)

AND

1. DR. G.M. UGBAM (MEDICAL DIRECTOR CHIEF EXECUTIVE FEDERAL MEDICAL CENTRE, UMUAHIA.)
2. MR. J.O. AMAIZU (DIRECTOR OF ADMINISTRATION, FEDERAL MEDICAL CENTRE, UMUAHIA)
3. CHIEF AYODELE AROGBODO (CHAIRMAN) FOR THEMSELVES AND REPRESENTING
THE MEMBERS OF THE BOARD OF MANAGEMENT OF THE FEDERAL MEDICAL CENTRE, UMUAHIA)
4. FEDERAL MINISTRY OF HEALTH ABUJARespondent(s)

RATIO

WHETHER OR NOT THE COURT OF APPEAL IS ENTITLED TO EVALUATE THE EVIDENCE OF WITNESSES

The Court of Appeal is entitled to evaluate the evidence and may reject conclusions of the trial Judge from facts which do not follow from the evidence or may be regarded as perverse. In other words the appellate Court is entitled to exercise all the powers of a Court of first instance. See INAKOJO VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423; JADESIMI VS. OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 264. PER ABDUL-KADIR, J.C.A.

DEFINITION OF A CROSS-APPEAL

A cross-appeal on the other hand arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called a Cross-appeal in relation to that of the other. Each appeal is an independent and separate complaint by the parties even though both appeals are heard together. If the appellant withdraws or discontinues his appeal, a respondent/cross appellant may proceed with his cross-appeal just a counter-claimant in a civil suit may prove his counter-claim where the plaintiff discontinues his own action. See IGWE VS. KALU (2002) 14 NWLR (PT. 787) 435; B.C.E. CONSULTING ENG. VS. N.N.P.C. (2004) 3 NWLR (PT. 859) 1; S.B.N. LTD. VS. M.P.I.E. LTD. 6 NWLR (PT. 868) 146 CA. PER ABDUL-KADIR, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR TERMINATION OF EMPLOYMENT

Generally, the letter of employment must be resorted to in considering the rights and obligations of the parties. Where the plaintiff fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506, 519. PER ABDUL-KADIR, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

In the STATE VS. ONAGORUWA (1992) 2 NWLR (Pt.221) 33 at 59 Akpata JSC held thus:
“A Court with Jurisdiction builds on a solid foundation, because jurisdiction is the bedrock on which Court proceedings are based. But when a Court lacks jurisdiction and continues to hear and determine judicial proceedings, it build on quick sand and all proceedings and steps based thereon will not stand.”
Also in the earlier case of KATTO VS. CBN (1991) 9 NWLR (PT. 214) 126 at 149. Paragraph D His Lordship Akpata, JSC held;
“Jurisdiction is fundamental. It fiat, the stamp of authority to adjudicate. If it is not there, the Court labours in vain and all it does amounts to nothing, a nullity.” PER ABDUL-KADIR, J.C.A.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.(Delivering the Leading Judgment): This is an appeal by the appellant against the decision of the Federal High Court holden at Umuahia presided over by Honourable Justice J.T. Tsoho delivered on the 8th day of July, 2005.
The facts leading to this appeal as can be gathered from the record of proceedings before the Court are that the Appellant was a Senior Public Servant/Officer employed by the Federal Ministry of Health but attached to the Federal Medical Centre Umuahia. Following due transfer of her service from UNTH Enugu on Salary Grade HATISS 13 i.e. Grade Level 15 in the Public Service of the Federal Republic of Nigeria, she occupies the position of Chief Personnel Officer and at all times material to this action, the Head of Administration/Secretary to the Board of Management of the Federal Medical Centre, Umuahia. She avers that the Federal Medical Centre Umuahia is a Parastatal under the Federal Ministry of Health (4th Respondent) that she performed her duties diligently and earned her due promotions.
It is Appellant averment that though she works at the Federal Medical Centre Umuahia represented by 1st to 3rd Respondents, that she is a staff and employee of the Federal Ministry of Health (4th Respondent) in that the 1st to 3rd Respondents is an integral part and creation of the 4th Respondent, the Federal Ministry of Health; that the Federal Medical Centre, Umuahia, has no separate existence of its own neither does it have Rule and Regulations of its own nor any separate conditions of service, separate or apart from those regulating conditions of the 4th Respondent i.e., the Federal Public Service Rules. Specifically, the appellant avers that it is the said Federal Public Service Rules that applies to and governs/regulates her terms and conditions of service with the Respondent and that before the 1st to 3rd Respondents can discipline any staff of the status of the Appellant, they must seek and obtain the approval and or delegation of authority of the 4th Respondent who is vicariously liable for acts of the 1st to 3rd Respondents as in this case. Further, the Appellant avers that chapter 4 of the said Public Service Rules contains the Disciplinary Procedure relating to her.
It is the case of the Appellant that the 1st to 3rd Respondents have no power under the said Rules to discipline her at all not being the Federal Public Service Commission or Minister In Charge of the Federal Ministry of Health. That in any case, she never committed any misconduct or disciplinary offence known to the Rules nor was she ever accused of any such offence by the 1st to 3rd Respondents or the Public Service Commission.
It is further the case of the Appellant in her pleading that contrary to the Rules of Natural Justice and fair Hearing, and without any authority from the Federal Public Service Commission or the Minister of Health, the 1st to 3rd Respondents without Jurisdiction, competence and ultra-vires their powers, purported to try the Appellant for non-existent/imaginary offences without giving her unbiased opportunity to defend herself (being her accusers, prosecutors and the Judges in their own cause) and without complying with conditions precedent to such disciplinary measures under the public service Rules and by such unlawful illegal, unconstitutional means. 1st – 3rd Respondents unlawfully purported’ to compulsorily and arbitrarily retire her prematurely from the service of the Federal Government vide letter dated 9th December, 2002.
In its Judgment the trial Court made findings to the effect be that the Appellant is a public officer within the meaning of the Constitution; that her employment is regulated by the Public Service Rules; that employment enjoys statutory flavour; that the 1st to 3rd Respondents have no powers to retire or discipline the Appellant under the Rules and thus Exhibit H purportedly retiring her was ,made without authority/Jurisdiction and therefore null and void; the learned trial Judge relying on the case of MOROHONFOLA VS. KWARA TECH. (1990) 4 NWLR (pt, 145) .506 at 518 proceeded to hold that the Appellant ought to Exhibit her letter of appointment as same creates the right sought to be declared; that there was in the circumstance no other ample evidence to establish the terms of the contract of employment between the Parties; and that the said letter of appointment being crucial and indispensable in the circumstance, the failure of the Appellant to plead or Exhibit the said letter of appointment was fatal to her case, the trial Court accordingly dismissed the Suit.
Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court vide her Notice of Appeal 4th October, 2005 containing 8 grounds of appeal.
We heard the appeal on the 11th of February, 2010. The Applicant’s brief of argument is dated 5/4/07 and deemed filed on 4/7/07. The Appellant also filed Appellant’s reply brief dated 20/9/07 and filed on 21/9/07. Learned Counsel for the Appellant adopted the two briefs of argument and urged the Court to allow the appeal and set aside the Judgment of the Federal High Court.
The Respondents brief of argument is dated and filed on the 4/7/07. Learned Counsel for the Respondents adopted the said brief of argument and urged the Court to dismiss the Appeal.
From the eight grounds of appeal, learned Counsel for the Appellant formulated three Issues for determination as follows:
(i) Whether having regard to the averments, of the Applicant in her statement and affidavit in support of the application as to the terms and conditions of her employment, the admissions of the Respondents and findings of Court to these effect, the learned trial Judge was right in holding that the failure to tender/exhibit her letter of appointment in the circumstance was fatal to Applicant’s case.
(ii) Whether the learned trial Judge was right in holding that the Applicant was afforded fair hearing in the circumstance of this case.
(iii) Whether the learned trial Judge was right in refusing to grant the Applicant the Relief/Remedy Quashing her purported compulsory premature retirement in Exhibit H after finding that the action of the 1st to 3rd Respondents as contained in Exhibit was ultra vires, their powers and without Jurisdiction.
Learned Counsel for the Respondents formulated two Issues for determination which read thus:
(a) Whether the lower Court was right in its decision dismissing the Appellant’s Suit on the ground that her failure to plead the terms of her employment and the tendering of same was fatal to her case.
(b) Whether based on the facts of this case and the confluence of evidence, adduced the lower Court was right in holding that, the Appellant was afforded a fair hearing.
In the determination of this appeal, it is my view that the issues as formulated by learned Counsel to the Appellant would address all the grievances of the appellant in this Appeal
ISSUE NO. 1
It is submitted for the Appellant by his learned Counsel that an action for wrongful termination of appointment or unlawful dismissal is an action founded in contract, in the instant appeal contract of Employment/Service, in such action therefore, there is the need for the Plaintiff to plead material facts giving rise to the contract as the foundation of his action. That the Plaintiff is obliged to plead the terms or conditions of such contract and all the circumstances constituting the breach of contract reference made to MOROHONFOLA VS. KWARA TECH (1990) 4 NWLR (PT. 145) 506. It is the submission of Appellant’s learned Counsel that the essence of pleading and tendering the letter of employment in a Suit for wrongful/Unlawful termination or dismissal is to discover/establish the terms and conditions of the service/employment so as to properly determine the rights and obligations of the Parties under the contract reference made to NIIA VS. AYANFALU (2007) 2 NWLR (Pt. 1018) 246 at 271; Morohunfola vs. Kwara Tech (1990) 4 NWLR (Pt.145) 506 at 518 paragraph B-C, page 519, paragraph D-G, page 525 – 526 paragraph B-D.
It is submitted that the material averments/facts establishing the terms of employment between the Plaintiff and Defendant could be contained and gathered from other available ample/material evidence/documents which are pleaded in the statement of claim or statement of facts or affidavit (as in this case being a trial by affidavit evidence) such as the Staff Hand book, pay advice/slip, fact of payment of salaries to the servant by the employer or other facts documents duly pleaded as in the case of SAVANNAH BANK PLC.VS. FAKOKWU (2002) 1 NWLR (PT. 749) 544 at 555 – 557, paragraph G- C; KADUNA TEXILES LTD.VS. UMAR (1994) 1 NWLR (PT. 319) 143 at 157 paragraph H-A; OKOEBOR VS. POLICE COUNCIL (2003) 12 NWLR (Pt.8340 444 at 476 paragraph G-H.
That in the case of a servant whose employment has statutory flavaur; such terms and conditions of service could be seen or established by reference to or production of the enabling statute or subsidiary legislation made there under, e.g., The Public Service Rules made pursuant to the constitution reference made to SHITTA-BEY VS. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 – 5 SC 26 at 35 – 36, lines 19, 43 lines 1- 10; NIIA VS. AYANZU (2007) 2 NWLR (PT.1018) 248; UJAM VS. IMT (2007) 2 NWLR (PT. 1019) 470 at 490 and 492; OKOEBOR VS. POLICE COUNCIL (Supra). Counsel contends that in such a case, it is the duty of the Plaintiff to plead and prove the terms of his/her employment as contained in the relevant staff hand book, statute/rules/regulations. Once such a Plaintiff has fully pleaded the terms and conditions of his employment and lead evidence in proof thereof or same is admitted by the employer, he or she does not necessarily need to tender the letter of employment as such will be mere Supplussage. Thus the non tendering of such letter of employment in the circumstance will not be fatal to his reference made to OKOEBOR VS. POLICE COUNCIL (Supra) 444 at 476 paragraph B – H 482 paragraphs G – H and 483 paragraphs G – H; NIIA VS, AYANLA (Supra) at 271 paragraph F – H.
Counsel for the Appellant submits that in the instant case, the Appellant in her statement of facts, Grounds for the Application filed on 17/11/2003 pleaded copiously and exhaustibly the terms of her employment/conditions of service with the Respondents to the effect that she is a Senior Civil Servant/Public Officer in the employment of the Federal Ministry of Health 4th Respondent but attached to the Federal Medical Centre 1st to 3rd Respondents; and that the Federal Medical Centre is a parastatal under the Federal Ministry of Health 4th Respondent and has no independent existence or conditions of service separate or apart from those that regulate the conditions of service of Federal Public Servant as contained in the Federal Public Service Rules revised in the year 2000. she averred further that the conditions of her service are regulated by the said Public Service Rules; that the said 1st to 3rd Respondents have no powers at all to exercise disciplinary control/measures over her; that the proper body to discipline her is the Federal Public Service Commission or the Minister in Charge of the Ministry of health; that before 1st to 3rd Respondents can ever purport to exercise any disciplinary measures against a staff of her status and caliber, they must first seek and obtain the consent and authority of the Federal Civil Service Commission or Minister of Health and that no such authority was obtained before 1st to 3rd Respondents purported to try her that her purported trial or and disciplinary action of premature compulsory retirement conveyed in Exhibit H by the 1st to 3rd Respondents was without the requisite authority or consent or delegation of the Federal Civil Service Commission or the Minister of Health and was done in breach of her rights of Fair Hearing/Natural Justice, without jurisdiction and ultra vires the powers of the 1st to 3rd Respondents.
It is submitted for the Appellant that the Appellant referred to and relied exclusively on the disciplinary procedures under various circumstances under chapter 4 of the Federal Public Service Rules 2000, specifically and in particular, she referred to rules 04102 vesting disciplinary powers over certain classes of staff but not staff within the Applicant’s status; Rules 04201 to 04207 on power of removal of a Public Officer for general inefficiency or incompetence not amounting to dismissal; Rules 04301 to 04315, 04401 to 04433 and 04601 on disciplinary procedures and measures for various categories or misconduct. That the Applicant finally averred that her case does not come under any of these instances in chapter 4 of the Rules nor does the  Respondents have any powers at all to exercise any disciplinary control over her.
Counsel for the Appellant submits that the Respondents in paragraphs, 3(i),(J)(1) and (M) of their counter affidavit filed on 2nd June, 2003 and paragraph. 3(1) of their further counter affidavit filed on 11th September, 2003 admitted that the Applicant is a Senior Staff of the Federal Medical Centre, Umuahia ,in the position of a Chief Personnel Officer. The Respondents also admitted that they purported to deal with the applicant under Rules 04036, 04414, 04415 and 04416 of the Federal Government Public Service Rules 2000 and also that they shall rely on the Federal Government Public Service Rules in their defence. Thus Counsel for the appellant argues that the Respondents without reservation, unequivocally admitted that the Federal Public Service Rules applied to the Applicant’s conditions of service/employment and that they placed reliance on it for their defence in this case. That, the Respondents by admitting to have purportedly disciplined the applicant under chapter 4 of the Federal Civil Service Rules, clearly admitted the case of the Applicant that the Federal Medical Centre is a parastatal and an integral part of the 4th Respondent. The Federal Ministry of Health; that Federal Medical Centre, Umuahia represented by the 1st to 3rd Respondents has no separate existence and that the Federal Public Service Rules pleaded by the Applicant regulates her condition of service; that her conditions of service in the circumstance enjoys statutory flavour. The Respondents were therefore under an obligation to show that their purported disciplinary action against the Applicant in Exhibit H is justifiable under and comes within their powers, if any under the said Public Service Rules and that they fully complied with all the conditions and procedures precedent under the Rules.
Further Counsel for the Appellant submits that, the learned trial Judge in his Judgment found as duly pleaded that the Applicant is a Public Officer with meaning of the Constitution of Nigeria 1999; that she works in the Federal Medical Centre, Umuahia, that she is employed by the Federal Ministry of Health and that the Federal Medical centre is a parastatal under the Federal Ministry of Health as shown in Exhibits A, C, D1, that the employment of the Applicant is regulated by the Federal Republic Service Rules and that, the Applicants service has statutory flavour; that the 1st to 3rd Respondents cannot discipline or retire the Applicant without authorization of the Federal Public Service Commission; that the consent/authority of the said Federal Service Commission or Minister was, not obtained before, the 1st to 3rd Respondents purported to discipline/remove/retire the Applicant in the circumstance was ultra vires the powers of the 1st to 3rd Respondents.
Learned Counsel for the Appellant contends that by the averments/pleadings of the Applicant in the Statement and further Affidavits in support of her application as to the nature of her employment and the terms and conditions of her service with the Respondents under the Federal Public Service Rules revised up to 2000, the admission of the Respondents that the Federal Public Service rules applies to the Applicant’s employment and the positive findings of the Court that the Applicant is a Public Officer with the Federal Ministry of Health; that her employment is regulated by the Civil service Rules and thus enjoys Statutory Flavour; that the 1st to 3rd Respondents do not have power to exercise disciplinary control over her and that Exhibit H was without authority/Jurisdiction, and therefore null and void, the Applicant/Appellant had adequately discharged the onus placed on her to prove the terms and conditions of her employment. Consequently, there was no other or additional duty/burden on her to tender or exhibit her letter of employment to prove her conditions of service/terms of her employment which were known, duly pleaded, proved, also admitted by the respondents and equally found by the Court to be the case; reference made to NIIA VS. AYANFALU (2007) 2 NWLR (pt. 1018) 246 AT 271- 272.
It is submitted for the Appellant that although the Appellant/Applicant did not tender or exhibit her letter of employment, she copiously and exhaustibly pleaded, produced and tendered other very material and reliable ample evidence which proved beyond doubt the nature of her employment with the Respondents, the terms and conditions of her employment and circumstances under which she could be disciplined, removed and who has power to discipline her particularly that the 1st to 3rd Respondents have no disciplinary control over her being a Senior Public Officer whose employment is regulated by the Federal Public Service Rules, 2000. That, the nature, terms and conditions of the Applicant’s employment were clearly admitted by the Respondents reference made to paragraph 3(1), (j) and (m) of the counter-affidavit pages 70 and 71 of the Records and paragraph 3(c) of the further counter-affidavit of the Respondents at page 115 of the Records. That the law is settled, that what is admitted needs no further proof, reference made to OJUKWU VS. ONWUDIWE (1984) 1 SCNJ 2147 at 284; OKOEBOR VS. POLICE COUNCIL (supra).
Further counsel for the Appellant submits that in the light of the averments of the Applicant, the admission by the Respondent and findings of the trial Judge it is a very serious error on the part of the learned trial Judge to hold that there were not ample evidence to determine the terms of the Applicant’s employment and that her inability to exhibit or tender her letter of employment is fatal to her case. That by stating that her employment is regulated by the Federal Public Service Rules 2000 and the Respondents placing reliance on the said Federal Public Service Rules 2000 for their defence and the Court also making positive findings that the said Federal Public Service Rules applied to the Applicant’s employment, the Court had the right and duly to have taken Judicial notice of the provision of the said Public Service Rules and should have referred to and relied on it in resolving any doubt before arriving at its Judgment/decision in the circumstance reference made to SHITTA BEY VS. FRSC (1981)1 SC 26; FCSC VS. LAOYE (1989) 2 NWLR (PT.106) 652. OKOEBO VS. POLICE COUNCIL (Supra); ABALAKA VS. MINISTER OF HEALTH (2006) 2 NWLR (PT. 963) 105; GUINESS NIG. LTD. VS. AGOMA (1992) 7 NWLR (PT. 256) 728.
It is submitted for the Appellant that the learned trial Judge was wrong to have relied on MOROHUNFOLA’S Case solely on the ground that she did not plead or exhibit her letter of employment or that there was no other ample evidence to enable him determine the terms and conditions of the Applicant’s employment in very peculiar circumstances of this case. That equally the facts and circumstances of MOROHUNFOLU Case (supra) are totally different and distinguishable from this case.
Finally learned Counsel for the Appellant urged the Court to hold that in the light of the exhaustive averment of the Applicant in her statement and affidavits, the admission of the Respondents and findings of the Court, the failure of the Applicant to tender her letter of employment is not and cannot be fatal to her case.
In response to the Appellant’s submission on Issue No. 1, Counsel to the Respondents submits that for a Plaintiff to succeed in any case challenging termination of this or her employment, it is the duty of the Plaintiff to plead and prove that she is an employee of the defendant, the terms of her employment and also her letter of employment reference made to OGBINOVIA VS. UBTH (2000) 8 NWLR (Pt.667) 53 at 58; MOROHUNFOLU VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (Pt.145) 506; AKINTOLA VS. SOLANO (1986) 2 NWLR (Pt. 24) 598; DR. OKHOMINA VS. PSYCHIATRIC HOSPITAL MANAGEMENT BOARD (1997) 2 NWLR.
Learned Counsel for the Respondents referred the facts concerning the Applicant’s employment as shown in paragraphs 3(e) (f) and (g) of grounds up an which the reliefs are sought and contends that from the statement in the paragraph, the Applicant if anything only succeeded in stating that she was employed by the University of Nigeria Teaching Hospital in 1976, but did not state the terms of her employment. But granting that she was employed by the said Teaching Hospital, then the provisions of the University of Nigeria Teaching Hospital Act will guide the Court in trying to determine the terms of her employment. And under the said Act, the Teaching Hospital is a legal entity with a Board empowered to hire and fire any employee. It is only to this extent the employment of the Applicant could be said to have statutory flavour. And follows therefore that what the Applicant purportedly transferred to Federal Medical Centre in 1996 was only the employment by the Teaching Hospital. Further, counsel for the Respondents argues that the Board of the Teaching Hospital never gave its approval to the transfer of the service of the Applicant to the Federal Medical Centre, so that all material times to this case the Applicant was at best on secondment to Federal Medical Centre Counsel for the Respondents submits that the bedrock of the Applicant’s Claim to the declaration she is seeking is embedded in the conditions of her employment as should be pleaded and/or contained and ascertained from her letter of employment. That once this substratum is missing, the Court will not go further to enquire into the peripheral of fair hearing or even the question that she was not prosecuted first before being removed, reference made to IGBINOVIA (supra) p.57; FLSC vs. LAYOSE (1989) 2 NWLR (Pt. 106) 652; GARBA VS. UNIVERSITY OF MAIDUGURI (1956) 1 NWLR (Pt.18) 550.
It is submitted for the Respondents that from the facts pleaded, the Applicant was employed by the University of Nigeria Teaching Hospital but that her letter of employment was not exhibited as such the terms and condition of her employment are not known. That the fact that the Applicant was seconded or transferred to the Federal Medical Centre by the Minister of Health does not make her a civil servant qualified to benefit under the Civil Service Rules. That one must be a Civil Servant employed by the Federal Civil Service Commission in accordance with the Federal Civil Service Rules in order to be entitled to benefit from the Civil Service Rules. That secondment or transfer of Service does not entitle a person not employed by the Federal Civil Service Commission to benefit under the Federal Civil Service Rules reference made to OKOMU VS. ISERHIENRHIEN (2001) 21 NRN 161 at 163 – 174. That the applicant is not a civil servant employed by the Federal Civil Service Commission in accordance with Public Service Rule and the Rules do not avail her in anyway particularly as regards who can remove her from office.
In the alternation Counsel for the Respondents submits that even if the, Applicant is held to be a Civil Servant entitled to benefit from the Federal Civil Service Rules, still her removal from office is still valid, and competently within the Federal Civil Service Rule. That she was a level 13 Officer and comes within Rule  04103 of Federal Civil Service Rules and subject to the power of the head of federal Medical Centre to remove her from office. Counsel further contends that the Management Board of Federal Medical Centre was well within its rights to order her retirement from service. That the interpretation placed, by the Applicant on the letter appointing the Board particularly as regards the powers of the Board is obviously a wrong interpretation. That the Board is a Management Board with all the management powers  as against the day to day executive powers of the career Civil Servants reference to OKOMU VS. ISERHIENRHIEN (Supra) at pp. 181-182.
Counsel submits that to determine whether the Appellant in this case qualifies as Public Servant who is entitled to benefit from the Public Service Rules, to determine a Public Servant is employed under the Public service Rules, learned Counsel referred to OKOMU VS. ISERHIENRHIEN (Supra) 182 -183.
That the trial Court fell into obvious error when it wrongly construed the finding of the Supreme Court in OKOMU VS. ISERHIENRHIEN (Supra) with regard to who is a Public Officer, and therefore come to a perverse conclusion that the Applicant/Appellant was a Public Servant entitled to benefit from the Public Service Rules. That the decision of the Supreme, Court in that case in that regard is clear and unambiguous and leads to only one conclusion which is that the Appellant is not a Public Servant under the Civil Service Rules.
Learned Counsel for the Respondents contends, that the argument of the Appellant’s Counsel that the Respondents admitted the assertion of the Appellant that she is a public servant and that the Appellant pleaded enough particulars to entitle her to Judgment cannot be correct. That the Appellant’s Counsel sought reliance for his submissions along this line on the authority of OKOEBOR VS. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444. That, the Appellant’s Counsel ascribed more to the authority of OKOEBOR VS. POLICE COUNCIL (Supra) then is intended by the Supreme Court. That the sum holding in OKOEBOR VS. POLICE COUNCIL (Supra) does not in essence detract from the salient requirements of the law in the cases of wrongful termination of employment as enunciated by the Supreme Court in MOROHUNFOLA VS. KWARA Tech. (Supra) but merely embellished the authority.
Learned Counsel to the Respondents submits that in reply to the Appellant’s statement to the effect that the Appellant was an employee of the 4th Respondent and therefore entitled to the benefit of the Public Service Rules clearly stated in paragraphs 5, 6 and 7 of their counter-affidavit.
5 – That the Federal Medical Centre is a Parastatal, like the Teaching Hospitals, and therefore employs and disciplines its own Staff, and also runs its own pensions schemes. The Federal Civil Service Commission is not responsible for employing its staff and disciplining them.
6 – That the Applicant was not employed by the Federal Civil Service Commission, but by the University of Nigeria Teaching Hospital. The Applicant is a Public Servant and not a Civil Servant.
7 – That the Applicant by her action clearly breached her official secrets oath and thereby compromised the requirement of her office. And the fact that he Respondents graciously allowed the Applicant to walk away on retirement with her benefits rather, than dismiss her clearly shows the human face requirement of the Respondents.
Counsel argues that these facts, which joined issues with the Appellant’s claim of being an employee of the Respondents, were not denied in any specific terms. And the above deposed facts required the Applicant/Appellant to effectively deny them by pleading and proving her terms of employment and her letter of employment but she failed, Counsel for the Respondents urged the Court to view with favour the submission of the Respondents on this issue and to hold that the appeal fails.
In response on points of law learned Counsel for the Appellant submits that the matters canvassed in paragraphs 3.01 – 3.06 of the Respondents’ Brief did not arise in this proceeding at the trial. Besides it was not the case presented by the Respondents at the trial. A Party must be consistent with his case at the trial and on appeal, reference made to NDAYAKO VS. MOHAMMED (2006) 17 NWLR (PT. 1009) 655 at 679; AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 48 ADOWE VS. IKEBUDU (2001) 14 NWLR (PT. 733) 385; AKPA VS. TODO (1997) 5 NWLR (PT. 506) 589; OREDEYIN VS. AROWOLO (1989) 4 NWLR (PT. 114) 172; NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1; ADELEKE VS. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR (PT. 1006) 608 at 690; OKORO VS. EGBHUOH (2006) 15 NWLR (PT. 1001) 1 at 21 paragraphs A-C.
That, there was no Cross Appeal or Respondent’s Notice filed by the Respondents to enable them challenge or attack the Findings of the trial Court Judge. That, the duty of a Respondent on appeal where he has not filed a cross-appeal on any adverse finding of the Court or Respondent’s Notice to support the Judgment on other grounds is to support the Judgement reference made to CROSS RIVER STATE WATER BOARD (C.R.S.W.B) VS. NIGERIAN CONSULTING ENG. LTD.  (2006) 13 NWLR (PT. 998) 589 at 615; EFFIONG VS. EBONG (2006) 18 NWLR (PT. 1610) 109 AT 125; FRN VS. OBEGGOLU (2006) 18 NWLR (PT. 1010) 188 at 235; IBE VS. ONUORA (1999) 14 NWLR (PT.638) 340; OGUNBADEJO VS. OWOYEMI (1993) 1 MW;R (PT. 291) 517; CROSS RIVER STATE WATER BOARD (C.R.S.W.B) VS. NIGERIAN CONSULTING ENG. LTD. (2006) 13 NWLR (PT.998) 589 at 615; EFFIONG VS. EBONG (2006) 18 NWLR (PT. 1010) 109 AT 125; UMANAH VS. AHAH (2006) 17 NWLR (PT. 1009)  503 at 536; UKPONG VS. COMMISSIONER OF FINANCE (2006) 19 NWLR (PT. 1013) 61 at 114. Further in response on points of law, learned counsel to the Appellant, submits that the Respondents completely misconceived and misapplied the principles enunciated by the Supreme Court in the case of MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (Supra) and other cases relied upon. Particularly, in a matter initiated by way of Judicial review or originating summons or fundamental rights, evidence adduced by way of averment in the affidavit in support thereof, is valid admissible evidence on which the trial Court can act, such evidence does not require any other form of further proof by oral evidence as in cases commenced by ordinary writ of summons and pleadings, reference made to NIGERIA NAVY VS. GARRICK (2006) 4 NWLR (PT. 969) 69 at 112 – 113.
In determining Issue No.1. It is pertinent to reproduce the Issue as formulated and relate it to the findings of the learned trial Judge and the conclusion reached thereon. The Issue reads thus:
“Whether having regard to the averments of the Applicant in her statement and affidavit in support of the application as to the terms and conditions of her employment, the admissions of the Respondents and findings of Court to these effect, the learned trial Judge was right in holding that the failure to tender/exhibit her letter of appointment was fatal to Applicant’s case.”
With regard to the status of the employment of the Appellant/Applicant with Respondents particularly the 4th Respondent, the learned trial Judge made far reaching findings which were not challenged by the Respondents by way of Cross-Appeal. At pages 169 to 170 of the printed record, the learned trial Judge made the following findings:-
“In the instant case, it is not in dispute that the Applicant had been an employee of the Federal Medical Centre, Umuahia which is a Government Parastatal under the Federal Ministry of Health as is rife from paragraph 6 of the Respondents’ Counter Affidavit and Exhibit “C” to the affidavit.
In the circumstances, it is my conviction that the applicant in this suit is a public officer and that her employment enjoys statutory flavour. Therefore, the Federal Medical Centre Umuahia, being only a Parastatal under the Federal Ministry of Health was incompetent to conclude disciplinary measures against an officer of the Applicant’s standing, without reference to the Minister of the parent Ministry.
Exhibits “A’, “C” and “D1″ to the affidavit in support lead credence to this as they show that the Ministry’s approval was usually required in the affairs of the Applicant. It is noteworthy’ that the letter of retirement (Exhibit ‘H’ to the application) does not pretend to emanate from any other source but the Board of Management of the Federal Medical Centre Umuahia. There is no evidence of delegated authority to retire the Applicant. It is trite law that evidence should be available to satisfy the Court that there is specific delegation of powers exercisable by the appropriate authority.
In the instant case, I have already held that the management Board of Federal Medical Centre Umuahia, standing on its own was incompetent to retire the Applicant without referring to the Minister of Health. Since there is no evidence of express delegation of powers to the Board to act, I hold that the retirement of the Applicant was without authorization.”
The above findings of the trial Judge were not appeal against either by the Appellant or the Respondents by way of Cross-appeal.
The powers of the Court of Appeal with respect to the determination of appeal before it are by way of re-hearing.
The word “re-hearing” in this con means a re-hearing on the printed records by re-examining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. It means an examination of the case as a whole.

Earlier in this Judgment, I have stated that there is no cross-appeal against the findings of the learned trial Court Judge with regard to the status of the employment of Applicant/Appellant with the 4th Respondent, therefore, to resolve issue No.1, it is imperative to refer to the Applicant’s statement of Facts/Grounds for the application, the Applicant’s Affidavit in support and further Affidavit in support and also the Respondents’ Counter-Affidavit and Further Court-Affidavit.
In the appeal at hand, the Appellant/Applicant in paragraph 1, 3(a), (d), (e), (f), (g), (h), (n) (p), (q), (s), (v) and (w) of the statement of Facts/Grounds for the Application at pages 3 – 6 and 36 – 39 of the printed records and paragraphs 7, 8 and 12 of Applicant’s Further Affidavit of 9th September, 2003 at pages 113 and 114 of the printed records and paragraphs 2, 3, 5 of the Further Affidavit of the Applicant, filed on 17/11/2003 at pages 117 and 118 of the printed record pleaded copiously and exhaustively the terms of her employment/condition of service with Respondents to the effect that she is a Senior Civil Servant/Public Officer in the employ of the Federal Ministry of Health. 4th Respondents have no powers at all to exercise disciplinary control/measures over her; that the proper body to discipline her is the Federal Public Service Commission or the Minister incharge of the Ministry of Health. That before the 1st to 3rd Respondent can ever purport to exercise any disciplinary measures against a staff of her status and caliber, they must first seek and obtain the consent and authority of the Federal Civil Service Commission or Minister of Health and that no such authority was obtained before the 1st to 3rd Respondents purported to try her; that her purported trial or and disciplinary action of premature compulsory retirement conveyed in Exhibit H by the 1st to 3rd Respondents was without the requisite authority or consent or delegation of the Federal Civil Service Commission or the Minister of Health and was done in breach of her rights to fair Hearing/Natural Justice, without Jurisdiction and Ultra vires the powers of the 1st to 3rd Respondents.
Besides, the Applicant referred to and relied extensively on the disciplinary procedures under various circumstances under chapter 4 of the Federal Public Service Rules 2000. Specifically and in particular, she referred to Rules 04102 vesting disciplinary powers over senior offices of Applicant’s Standing on the Federal Civil Service Commission Rule 04103, by which the said Commission may delegate some disciplinary powers over certain classes of Staff but not Staff within the Applicant’s status; Rules 04201 to 04207 on power of removal of a public officer for general inefficiency or incompetence not amounting to a dismissal; Rules 04301 to 04315 for various categories of misconduct. Applicant finally, averred that her case does not come under any of these instances in chapter 4 of the Rules nor does the Respondents have any powers at all to exercise any disciplinary control over her.
The Respondents in paragraphs 3(i), (j), (l) and (m) of their Counter-Affidavit filed on 27th day of June, 2003 at pages 70 and 71 of the Records and paragraph 3(1) of their Further Counter-Affidavit filed on 11th September, 2003 at page 115 of the records admitted that the Applicant is a Senior Staff of the Federal Medical Centre, Umuahia in the position of a Chief Personnel Officer. The Respondents also admitted that they purported to deal with the Applicant under Rules 04036, 044414, 04415 and 04416 of the Federal Government Public Rules 2000 and shall rely on the Federal Government Public Service Rules in their defence.
The relevant portion of the Judgment of the learned trial Judge has been produced in this Judgment wherein the learned trial Judge found as duly pleaded that the Appellant/Applicant is a Public Officer within the meaning of the Constitution of Nigeria 1999; that she works in the Federal Medical Centre Umuahia, that she is employed by the Federal Ministry of Health as shown in Exhibits A, C, D1, that the employment of the Applicant is regulated by the Federal Public Service Rules and that the Applicant’s service has statutory flavour; that the 1st to 3rd Respondents cannot discipline or retire the Applicant without authorization of the Federal Public Service Commission; that the consent/authority of the said Federal Public Service Commission or Minister, was not obtained before the 1st to 3rd Respondents purported to discipline/remove/retire the Applicant and that the Applicant’s circumstance was ultra vires to powers of the 1st to 3rd Respondents.
It is very clear in the circumstance of the above quoted averments/pleadings of the Applicant in the statement and Further Affidavits in support of her application as to the nature of her employment and the terms and conditions of her service with the Respondents under the Federal Public Service Rules revised up to 2000. The admission of the Respondents that the Federal Public Service Rules applies to Applicant’s employment and the positive findings of the Court that Applicant is a public officer with the Federal Ministry of Health that the employment is regulated by the Civil Service Rules and thus enjoys statutory flavour; that the 1st to 3rd Respondents do not have power to exercise disciplinary control over her and that Exhibit “H” was without authority/Jurisdiction and therefore null and void, it therefore stand to reason that the Applicant had adequately discharged the onus placed on her to prove the terms and conditions of her employment i.e. rights and obligation of parties under the contract of employment.
Consequently, there was no other or additional duty/burden on her to tender or exhibit her letter of employment to prove her conditions of service/terms of her employment which were known, duly pleaded, proved, also admitted by the Respondents and equally found by the Court to be the case.
The whole essence of the need to plead, tender and prove the letter of employment in an action of this nature is to enable the Court determine the terms and conditions of service or rights and obligations of the parties under the contract of service where therefore, the terms and conditions of employment that is the right and obligations of the parties have been sufficiently, duly and exhaustively pleaded and proved by the Applicant or and equally admitted by the Respondents and the Court also finds and holds that the Federal Public Service Rules applies/regulates the Applicant’s employment; the necessity to reduce, exhibit or tender letter of employment is most immaterial, unnecessary and a supplussage.
In appeal at hand, it is beyond dispute that the Appellant/Applicant through her statement and affidavit evidence and also Exhibit D1 her letter of Transfer of service has pleaded and proved that her employment with the Respondents is regulated by the Federal Public Service Rules and beside, it is not in all cases that it is obligatory that an applicant or plaintiff in an action of this nature that he must tender his letter of appointment. In NIIA VS. AYANFALU (2007) 2 NWLR (PT. 1018) 264 at 271 – 272 this Court through Salami; JCA as he then was held thus:-
“The Appellant equally contended that the failure of the Respondent to tender her letter of appointment was fatal to her claim. Learned Counsel for Respondents contended that the Respondent was relieved of the burden of tendering her letter of appointment on Appellant’s admission of paragraphs 1, 3, 5, 7, 8, 11 and 12 of the Amended Statement of Claim in its further amended Statement of Defence and Counter Claim. There is merit in the submission of the learned Counsel for the Respondent. Admission of the existence of a contract of service does obviate the need to tender the letter of employment. It is the letter of employment that provides the terms and conditions of appointment which were averred in the amended statement of claim. Generally, the letter of employment must be resorted to in considering the rights and obligations of the parties. Where the plaintiff fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506, 519.
But where as in the instant appeal, the appellant admitted the existence of the contract arid the condition of service was put in evidence the rigid rule set down in MOROHUNFOLA’S CASE (Supra) would not be adhered to. The parties appear to be ad-Iden in the instant appeal that there was inexistence a contract of service. The ‘only area of dispute’ relates to the manner of removal of the Respondent. In that situation it may no longer be necessary to tender the letter of appointment. The parties in this case joined issue on the relevant averments in line with the recent decision of the Supreme Court in OKOEBOR VS. POLICE COUNCIL (2003) 12 NWLR (PT.834) 444. The Respondent having pleaded the existence of contract of employment which the Appellant admitted; there is no need to call evidence to prove what has been admitted.”
In the instant appeal apart from the fact that the Appellant/applicant exhibited Exhibit D1 which is her letter of Transfer of her service to the Federal Medical Centre Umuahia, duly approved by the 4th Respondent, the Federal Ministry of Health which to me the said Exhibit D1 properly constitute her formal engagement with the Federal Medical Centre Umuahia, the Appellant/Applicant copiously and exhaustively pleaded, produced and tender other very material and reliable ample evidence which proved beyond doubt the nature of her employment and circumstances under which she could be disciplined, removed and who has power to discipline her particularly that the 1st to 3rd Respondents have no disciplinary control over her being a Senior Public Officer whose employment is regulated by the Federal Public Service Rules 2000. Besides the nature, terms and conditions of the Appellant/Applicant’s employment was clearly admitted by the Respondents in paragraphs 3(i), (J), (l), and (m) of the Counter-affidavit of the Respondents as can be seen at pages 70 – 71 of the printed records and paragraph 3C of the further Counter-affidavit of the Respondents at page 115 of the printed Records.
The law is settled that what is admitted needs no further proof, the Supreme Court in OJUKWU VS. ONWUDIWE (1984) 1 SCNLR 247 at 284 held thus:-
“Another principle deeply enshrined in our Jurisprudence is that admissions made do not require to be proved for the simple reason, among others’ that out of the abundance of the heart the mouth speaketh, and that no better proof is required then that which an adversary wholly and voluntarily owns up.”
In the light of all I have stated above, Issue No 1 is resolved against the Respondents in fayour of the Appellant.
Issue No. 2
Whether the learned trial Judge was right in holding that the Applicant was afforded fair hearing in the circumstance of this case.
It is submitted for the Appellant that the Board Members 1st to 3rd Respondents and the Senior Staff Disciplinary Committee set-up by the Board who purported to discipline the Applicant were the complainants, prosecutors and Judges in their own cause. That the 1st to 3rd Respondents, all members of the Board of Federal Medical Centre Umuahia and its Disciplinary Committee were thus disqualified from sitting in Judgment against the Applicant to hear her defence and determine her case. Reference made to LPDC VS. FAWEHINMI (1985) 2 NWLR (PT.7) 347 – 348. That the Applicant was invited to appear before the purported Senior Staff Disciplinary Committee and the Board of Management that investigated/approved the report/findings against the Applicant based on specific allegations they found her quality of totally different allegations. That, the Applicant was not given the opportunity to defend herself over the serious allegation against her and inspite of this, the Board of Federal Medical Centre 1st to 3rd Respondents still found her guilty and proceeded to punish her most cruelly and unjustly, that this is an Unmitigated breach of her right to fair hearing/natural Justice reverence made to FLSC VS. LAOYE (1989) 2 NWLR (Pt. 106) AT 727.
Learned Counsel for the Appellant submits that the right to fair hearing of the applicant was again breached in that the members of the Disciplinary Committee and the Board of Management of the Federal Medical Centre Umuahia who purported to discipline the Applicant were not qualified under the law at all to hear or try the Applicant, they not being the Federal Public Service Commission envisaged by the Federal Public Service Rules to hear disciplinary matters against the Applicant in the circumstances of the case. That the said Board on its Disciplinary Committee were incompetent to try the Applicant and thus acted without jurisdiction, reference made to Section 36(1) of the 1999 Constitution of Nigeria. STATE VS. ONAGOROWA (1992) 2 NWLR (Pt.221) 33 at 59; KATTO VS. CBN (1991) 9 NWLR (Pt.214) 126 at 149. Further Counsel for the Appellant submits that as admitted by the Respondents, the Applicant was purportedly disciplined by them for serious misconduct under the Federal Public Service Rules 2000. That the procedure for disciplining a public officer under the federal Public Service Rules whether for misconduct or serious misconduct are the same, Rule 04306(1) – (xii) and 04402 and that the power to discipline such officer undoubtedly lies in the Federal Public Service Commission Rule 04102 and Rule 04103. That the Disciplinary procedure is set-out in Rules 04302, 04303, 04304, 04305, 04306, 04601 and 04402. That the Respondents failed to comply at all with these procedure prescribed in these Rules and most importantly the investigation/disciplinary action was not carried out by the proper body the Federal civil Service Commission thus there was Unmitigated breach of the Applicant’s right to fair hearing/natural justice reference made to FCSC VS. LAOYE (Supra) at p. 682. Counsel urged the Court to hold that the Applicant’s right to fair hearing which is fundamental was flagrantly breached.
In reply to the submissions on Issue No. 2 learned Counsel for the Respondents submits that the Appellant was given ample opportunity to defend herself before the Senior Staff Disciplinary Committee but she failed to take advantage of it. That in the circumstance, she cannot be heard to complain about defect in the procedure of the Committee like lack of fair hearing. Reference made to OKIKE VS. LPDC (2005) 47 WRN 1 at 48.
Issues No. 2. is essentially on fair hearing and competence of the Disciplinary Committee and the Board of Management of the Federal Medicaid Centre Umuahia that initiated and took disciplinary measures against the Appellant. Issues No. 2. therefore questions the competence and jurisdiction of the senior staff Disciplinary Committee of the Federal Medical Centre or Board of the Federal Medical Centre Umuahia, set up to try or discipline the Appellant.
In his Judgment at pages 169 – 170 of the records of proceedings, the learned trial Judge made the following findings:-
“In the circumstance, it is my conviction that the Applicant in this Suit is a public officer and that her employment enjoys statutory flavour. Therefore, the Federal Medical Centre, Umuahia, being only a parastatal under the Federal Ministry of health was incompetent to conclude disciplinary measures against an officer of the Applicant’s Standing, without reference to the Minister of the parent Ministry, Exhibits A, C, and D1 to the Affidavit in support lead credence to this, as they show that the Ministry’s approval was usually required in the affairs of the Applicant.
In the instant case the Disciplinary Body titled Senior Staff Disciplinary Committee of the Federal Medical Centre or Board of the Federal Medical Centre Umuahia, set up to try or discipline to be properly constituted and therefore have Jurisdiction to try her, it must be properly constituted within the meaning of Section 36(1) 1999 Constitution in relation.
(i) The number and Qualification of its members and no member is disqualified for one reason or another.
(ii) The subject matter is within its jurisdiction and there is no feature in the case which prevents it from exercising its jurisdiction.
(iii) That the case that comes before it is initiated by the process and upon fulfillment of any condition precedent to the exercise of jurisdiction.” See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587.
These three elements of jurisdiction stated above must co-exist and he present at all material times to the exercise of jurisdiction. If any is lacking, the Court or Tribunal or body is incompetent and has no jurisdiction. In the STATE VS. ONAGORUWA (1992) 2 NWLR (Pt.221) 33 at 59 Akpata JSC held thus:
“A Court with Jurisdiction builds on a solid foundation, because jurisdiction is the bedrock on which Court proceedings are based. But when a Court lacks jurisdiction and continues to hear and determine judicial proceedings, it build on quick sand and all proceedings and steps based thereon will not stand.”
Also in the earlier case of KATTO VS. CBN (1991) 9 NWLR (PT. 214) 126 at 149. Paragraph D His Lordship Akpata, JSC held;
“Jurisdiction is fundamental. It fiat, the stamp of authority to adjudicate. If it is not there, the Court labours in vain and all it does amounts to nothing, a nullity.”
In the instant case, both the senior staff Disciplinary Committee set-up by the Board and the Board of Federal Medical Centre which purported to try the Appellant for an alleged act of serious misconduct were not the proper body namely; the Federal Civil Service Commission or the Minister of health to try or discipline her, consequently, it was not properly constituted as number and qualification of its members.
Further, the subject matter in this case is the matter of the Appellant a Senior Officer of the Federal Ministry of Health who can only be disciplined by the Federal Civil Service Commission or the Minister of Health. This subject matter is therefore not within its jurisdiction as the fact that she is a Senior Staff on Grade level 15 subject to discipline measures only by the Federal Civil Service Commission or the Minister, is a feature in the subject matter which prevents the Board from exercising jurisdiction and thereby robbed the Disciplinary Committee and the Board of Federal Medical Centre Umuahia of Jurisdiction.
From the above stated reasons it is glaring that the matter of the discipline of the Appellant/Applicant was not initiated by due process upon fulfillment of condition precedent. There is total lack of Jurisdiction in both the senior staff Disciplinary Committee set up by the Board and the Board of the Federal Medical Centre which purported to try the Applicant/Appellant for alleged act of serious misconduct accordingly their deliberations and the outcome of the deliberations contained in Exhibit “H” are a nullity, therefore Issue No. 2. resolved in favour of the Appellant against the Respondents.
Issue No.3:
Whether the learned trial Judge was right in refusing to grant the Applicant relief/remedy of Judicial Review of Certiorari, Quashing her purported compulsory premature retirement in Exhibit H, having found that the action of the 1st to 3rd Respondents as contained in Exhibit H, was ultra vires their powers and without Jurisdiction.
On this issue, learned Counsel for the Appellant submits that the Appellant clearly established all facts and grounds pleaded and relied upon by her for bringing the application for certiorari by proving beyond doubt that the Board of Federal Medical Ceptre Umuahia that purported to discipline her are not her employers and had no such powers to discipline her nor did they act on the authority of her employers (the Federal Civil Service Commission); equally failed to comply with the conditions precedent to her being disciplined and thus that the letter (Exhibit H) which they purported to discipline her was null, void and of no effect in the circumstance having been without Jurisdiction.
The Respondents did not proffer any argument on issue No. 3.
Some of the established grounds for which certiorari will lie to quash the decision of an inferior tribunal as the Respondent include any of the following:-
(i) Want of or excess of Jurisdiction
(ii) Breach of the rules of natural justice/fair hearing. See EZENWA VS. BESTWAY ELECTRONICS MANUFACTURING CO. LTD. (1999) 8 NWLR (PT. 613) 61; EXPARTE, KUBEINJE (1971) 11 SC 79.
In this appeal a careful perusal of the grounds and facts on which the Appellant/application is based revealed that the applicant clearly established the two grounds relied upon by her for the application, namely; The issue of want of competence or Jurisdiction on the part of the Disciplinary Committee and the Board of the Federal Medical Centre to discipline her not being the Federal Civil Service Commission or the Minister of Health in the Federal Ministry of Health and the Issue of Fair Hearing breach of natural justice on the part of the 1st to 3rd Respondents Board of Federal Medical Centre Umuahia.
The learned trial Judge in his Judgment at page 170 of the printed records found thus:-
“I have already held that the Management Board of Federal Medical Centre Umuahia standing on its own was incompetent to retire the Applicant without referring to the Minister of the Federal Ministry of Health. Since there is no evidence of express delegation of powers to the Board to act, I hold that their retirement of the Applicant was without authorization.”
The Court having rightly found and come to the conclusion that Exhibit H was made by incompetent body (the Board of Federal Medical Centre Umuahia 1st to 3rd Respondents) and without the necessary jurisdiction/authority, and thus the said decision in Exhibit H is null, void and or no effect, the learned trial Judge was under a duty to have exercised his discretion to quash it there being no justifiable reason whatsoever to the contrary. See HART VS. MILITARY GOVERNOR RIVERS STATE (1973) 2 FNR 215; FCSC VS. LAOYE (1989) 2 NWLR (Pt.106) 652.
In view of the foregoing issue No. 3 is resolved in favour of the Appellant against the Respondents.
In conclusion, having resolved the three issues formulated for determination in favour of the Appellant against the Respondents, the appeal is highly meritorious and is accordingly allowed.
The Judgment of the Federal High Court sitting at Umuahia Per Tsoho, delivered on 8th July, 2005 is hereby set aside. Consequently, the relief sought by the Applicant that is an order of certiorari for the decision of the Respondents embodied in the letter of the 1st to 3rd Respondents No. FMC/QEH/PER/2079/44 of 9th December, 2002.under the hand of the 2nd Respondent addressed to the Applicant to be removed into this Honourable Court for same to be quashed is granted, accordingly Exhibit H is quashed. Pursuant to Section 16 of the COUl1of Appeal Act the Appellant/Applicant is ordered to be reinstated to her employment with effect from 9th December, 2002 and the payment all her salaries and allowances due to her since the said date.
In the circumstances, I reiterate that the appeal is allowed. Judgment is entered in favour of the Appellant. N30,000.00 costs of this appeal is awarded to the Appellant against the Respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read before now the erudite and comprehensive judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR, JCA. His Lordship has covered extensively all the issues in controversy. I agree with his reasoning and conclusion that the appeal be allowed. I abide by all the consequential orders and the orders as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment just delivered by my learned brother the Hon. Justice A. Jega. I agree with the reasoning and the conclusion. I also abide with the consequential orders.
One of the salient issues in this appeal is the propriety or otherwise of the learned trial judge dismissing the Appellant’s case at the lower court on the ground that her letter of employment was not pleaded. The trial court Justified this action by relying on the decision of the Supreme Court in the case of B.A. Morohunfola vs. Kwara State College of Technology (1990) 4 NWLR (pt. 145) page 506.
I agree with the lead judgment that the facts of the instant appeal are quite different from the facts in the case of Morohunfola vs. Kwara State College of Technology (supra). The appellant in the Morohunfola’s case instituted an action at the High Court of Ilorin for wrongful termination of his appointment with the respondent. The respondent filed a statement of defence in which all the averments in the three paragraphs statement of claim were denied.
The trial Judge in his judgment found that “the statement of claim is so grossly inadequate” that it falls far short of the minimum practically required under Order 10 of the High Court (Civil Procedure) Rules of Kwara State 1975. It is just two brief to be regarded as pleading and two deficient to be relied upon for “any purpose in this suit.” He went on to hold that the interest of justice is better served by non suiting the appellant.
Both parties appealed to the court of Appeal, the appellant against the refusal of the trial court to grant his claim and the respondent challenging the order of non suit and claiming that the action ought to have been dismissed into. The Court of Appeal dismissed the appeal of the appellant and allowed that of the respondent, whereupon the appellant against appealed to the Supreme Court. A unanimous Supreme Court dismissed the appellant’s appeal.
These were the circumstances which made Karibi-Whyte JSC at page 526 of the Morohunfola case to hold for the Supreme Court that:
“All counsel to the appellant did in this case in his statement of claim was to allege that there was no authority for the exercise of the power to terminate his appointment. There was no averment in his statement of claim to show that he held an appointment with the defendant, the terms and conditions of that appointment, and the circumstances under which his appointment can be determined by the defendant or any person delegated to do so. I agree with Mr. Olanipekun for the respondents and the Court of Appeal that these are essential particulars of the appellant’s pleadings without which the plaintiff’ claim cannot be sustained.”
Before then, Belgore JSC who delivered the lead judgment in the Morohunfola’s case also said at page 518 that:
“…The Court of trial was just confronted with a letter of termination without more; the plaintiff’s statement of claim is too vague and lacking in particular not only by its brevity but also by lack of material particulars that most of the evidence led during the trial actually went to no issue.”
It would be seen from the above dicta that it would not be right for a trial court as it happened in the instant case to imagine that Morohunfola’s case (supra) merely decides that a plaintiff’s action for termination of employment must necessarily fall where the plaintiff has not produced his letter of employment. To the contrary, the decision of the Supreme Court in the Morohunfola’s case turned on insufficiency of pleading to sustain the claims of the Plaintiff/Appellant. Furthermore, the fact that Morohunfola’s case was decided on its peculiar facts and did not lay down a general rule that the inability of a plaintiff to plead or tender his letter of employment automatically leads to the dismissal of his case has been recognized in cases decided after the Morohunfola’s case.

Appearances

Mr. C. C. EleleFor Appellant

AND

Mr. O. AmechiFor Respondent