REV. BRIGHT ORIE IGWE VS REV. DANIEL E. ETIM & 11 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 26th September 2018

SUIT NO. NICN/ABK/01/2015

BETWEEN

REV. BRIGHT ORIE IGWE

CLAIMANT

AND

REV. DANIEL E. ETIM
REV. ESEME D. WILLIAMS
REV. PROF. EMELE M. UKA
REV. OTI ALUU
THE PRESBYTERIAN CHURCH OF NIGERIA
COMMODORE DR. AKUMA AJA
REV. EZE UMAHI
DR. INNOCENT ECHIEGU
DR. JOHN NWACHI

10.CHIJIOKE NWANKWO

11.DR. OGIENAGBON R. A.

12.PROF. ORJI UDUMA

DEFENDANTS

REPRESENTATION:

Chinyere Rosemary Okpani Agha [Mrs.] with Violet Iheakaogo Ekumakama [Mrs.] for the Claimant

Brendan Agu Esq. for the Defendants

JUDGMENT

The Claimant commenced this suit by a complaint dated 21st May 2015. The complaint was accompanied with a statement of facts, list of witnesses to be called at the trial, copies of documents to be relied on at the trial and written statement on oath of the Claimant. Upon receipt of the originating processes, the Defendants filed a memorandum of conditional appearance and motion on notice to strike out the suit for lack of proper service. The motion was heard on 26th April 2016 and in a considered ruling delivered on 23rd February 2017 dismissed. The Claimant filed a motion for leave to amend his statement of facts and file a further witness deposition on 22nd May 2015. The Defendants filed their defence processes out of time with a motion to regularise. The Claimant’s motion for leave to amend his statement of facts and file his further statement on oath was heard and granted on 25th October 2017. The Claimant in his amended statement of facts dated 8th November 2017 and filed on 13th November 2017 claimed against the Defendants for:

A declaration that the purported letter of compulsory leave and transfer to Iba Parish in Lagos East dated 28/10/2014 and 27/10/2014 is unlawful, illegal, unconstitutional, null and void and of no effect for non-compliance with the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 as same is in breach of the Claimant right to fair hearing enshrined in section 36[1] of the 1999 Nigerian Constitution [as amended] and the provisions of the Presbyterian Church of Nigeria Policies of the General Assembly 1987-2002 vol. 1 and the PJH 1990 condition of service.

A declaration that the purported letter of suspension from office dated 6/11/2014 is unlawful, illegal, unconstitutional, null and void and of no effect for non-compliance with the provisions of section B5[4] of the Submission of the Review of 1999 PJH condition of service and section 64.0-64.3 of the Presbyterian Church of Nigeria Policies of the General Assembly 1987-2002 vol. 1 as same is in breach of the Claimant right to fair hearing enshrined in section 36[1] of the 1999 Nigerian Constitution [as amended] and the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89.

A declaration that the General Assembly of the Presbyterian Church of Nigeria and the Board of Governors of the Presbyterian Joint Hospital, Uburu does not have original jurisdiction to discipline the Claimant by suspending him and or giving the Claimant two [2] months compulsory leave and transfer to any Parish without following the due process provided for in the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol. 1, the 1999 PJH Condition of Service and the Rules of Discipline contained in the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 of going through the appropriate body or court and in this instant case the Uburu Presbytery where the Claimant belongs to be cited, discipline, heard and be tried before any decision whatsoever is taken against him as same offends section 36[1] of the 1999 Nigerian Constitution [as amended].

A declaration that the suspension and the compulsory leave of the Claimant without fair hearing and fair trial offends section 36[1] of the 1999 Nigerian Constitution [as amended], the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 and the provisions of the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol.1 and the provision of the 1999 PJH Condition of Service.

An order restoring the Claimant back to his position as the Secretary/Head Administrator of the Presbyterian Joint Hospital, Uburu as his full time employment with the Presbyterian Church of Nigeria and or with the said Presbyterian Joint Hospital, Uburu has not been terminated.

An order restraining the Defendants from interfering with the Claimant’s duties as the Secretary and or Head Administrator of the Presbyterian Joint Hospital, Uburu in Ohaozara L.G.A save in compliance with the provisions contained in the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89, and the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol. 1, the said PJH Condition of Service of the Presbyterian Joint Hospital, Uburu and the 1999 Constitution of Nigeria [as amended].

An order restraining the Defendants from harassing, intimidating the Claimant through the instrumentality of the Police or any other Security Agencies for no just cause.

An order directing the 5th Defendant to immediately pay to the Claimant his due salary of N243, 824.67 per month from November 2014 to when this matter is finally determined being the Secretary and Head Administrator of the Presbyterian Joint Hospital, Uburu, Ohaozara L.G.A. of Ebonyi State.

An order directing the Defendants to immediately include the Claimant’s name as one of the signatories to the 5th Defendant’s Presbyterian Joint Hospital [PJH] Uburu’s designated bank account being the Secretary and Head Administrator of the said Presbyterian Joint Hospital [PJH] Uburu.

The sum of N1, 000,000 from the Defendants for unlawfully suspending the Claimant from his office as the Secretary/Head Administrator of the Presbyterian Joint Hospital Uburu for no just cause and without giving him the opportunity to be heard.

The sum of N1, 000,000 for unlawfully giving the Claimant 2 months’ compulsory leave without giving him fair hearing through Uburu Presbytery where the Claimant belongs.

The sum of N1, 000,000 for disgracing and tarnishing the image and integrity of the Claimant as a vibrant minister of God.

The sum of N2, 000,000 for unlawfully putting the Claimant under severe financial hardship for non-payment of the Claimant’s due salary of N243, 824.67 per month from November 2014 till date.

The sum of N2, 000,000 for unlawfully using the Police to harass, detain and intimidate the Claimant for no justifiable reason on 3/12/2014 through the 7th and 11th Defendants’ petition to the Commissioner of Police dated 24/11/2014 herein attached and marked as exhibit M.

The sum of N2, 000,000 as general damages.

The sum of N1, 000,000 being the cost of this suit.

The Claimant filed along with the amended statement of facts his further statement on oath, list of witness and copies of documents to be relied on at the trial. After receipt of the amended processes, the Defendants filed their statement of defence dated 4th December 2017, list of witnesses, statement on oath of the witnesses, list of documents and copies of the documents. Trial began on 12th March 2018 and was concluded on 18th May 2018. The Claimant testified in proof of his claims and tendered 10 exhibits. The Defendants called two witnesses who testified on their behalf as DW1 and DW2 and tendered 12 exhibits, exhibits DW1A to DW1M. The case was thereafter adjourned for adoption of final written addresses. On 5th July 2018, learned Counsel for the Defendants, Mr. Agu, adopted the Defendants’ final written address dated 8th June 2018 and reply on point of law dated 25th June 2018 and urged the Court to dismiss the claim with punitive cost. Learned Counsel for the Claimant, Mrs. Agha, adopted the Claimant’s final written address dated 11th June 2018 as his submission in support of the claims and urged the Court to grant the reliefs of the Claimant as prayed. The case was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant’s case as gleaned from his amended statement of facts is that he is a Reverend Minister employed on full time basis by the 5th Defendant and seconded to the Presbyterian Joint Hospital Uburu as its Secretary. He was subsequently appointed acting Administrator of the Hospital by the Board of Governors of the Hospital, exhibit 1. By letter dated 27th October 2014, the Claimant was redeployed to Iba Parish of the 5th Defendant, exhibit 2. He was subsequently asked to proceed on two months’ compulsory leave with effect from 1st November 2014 and resume at his new location from 1st January 2015, exhibit 3. By letter dated 6th November 2014, exhibit 6, the Board of Governors Presbyterian Joint Hospital Uburu suspended him from office as Administrator of the Hospital with immediate effect. It is the Claimant’s case that his redeployment, compulsory leave and suspension did not follow due process in that he was not heard before the actions were taken and that the General Assembly does not have original jurisdiction to discipline him and only exercises appellate jurisdiction on issues reported to her from the Session, Presbytery or Regional Synod and relied on exhibits 5, 7 and 8.

DEFENDANTS’ CASE

The Defendants joined issues with the Claimant and admitted that he is a Reverend Minister of the 5th Defendant on routine posting sent to the Presbyterian Joint Hospital, Uburu as Secretary of the Hospital. During the period of his secondment, the Claimant was subject to the conditions of service of the Presbyterian Joint Hospital and supervision of its Board of Governors, which reports to the 5th Defendant through the 5th Defendant’s Medical Board. The Defendants stated that all Reverend Ministers of the 5th Defendant are under the control of the Board of Personnel and Training which is in charge of posting of Reverend Ministers including the Claimant. It is the Defendants’ case that at the Presbyterian Joint Hospital the Claimant engaged in acts contrary to his vow as a Reverend Minister and was found incompetent to administer a health facility by a Committee set up by the Government of Ebonyi State. Following complaints by other staff of the Presbyterian Joint Hospital, the Board of Governors, in a meeting held on 5th November 2014 attended by the Claimant, resolved to suspend the Claimant and advise the 5th Defendant to relocate him from the Hospital.

SUBMISSION ON BEHALF OF THE DEFENDANTS

The Defendants formulated three issues for determination to wit:

Whether the 5th Defendant has the right to post out the Claimant at will without giving reasons for such action?

Whether the Claimant was denied fair hearing in the process that led to his suspension and subsequent transfer looking at the circumstances of the case?

Whether due procedure was followed in disciplining the Claimant?

On issue one, learned Counsel returned an affirmative answer and explained that the Claimant under cross examination accepted that he had been posted from one location to another without complaint. He submitted that the Claimant was not dismissed from his Ministry as a Minister of the 5th Defendant but merely sent on routine posting pending investigation of the allegations against him. Learned Counsel explained that there is a difference between Ministers serving in Parishes and those on secondment to 5th Defendant’s institutions and submitted that the conditions of service of the Presbyterian Joint Hospital governed the Claimant while on secondment at the Hospital and he was subject to the Board of Governors of the Hospital.

On issue two, learned Counsel referred to exhibits DW1A and DW1B and submitted that the Claimant was given a fair hearing before decisions were taken against him by the Presbyterian Joint Hospital. It was argued that when a man absents himself from a meeting he is supposed to attend, he accepts any decisions from that meeting and relied on Alcohol Manufacturing Co. Plc [in liquidation] v. All Motors [Nig.] Plc [2011] All FWLR [pt.600] 1226 at 1229.

On issue three, learned Counsel explained that the Claimant at the time of his suspension was subject to the conditions of service of the Presbyterian Joint Hospital and not exhibits 5 and 8. He submitted that suspension is part of the disciplinary procedure which does not terminate the contract of employment and as a result the employee cannot complain of fair hearing. He referred to Bernard Longe v. First Bank of Nigeria Plc [2006] 3 NWLR [pt.967] 228 at 267, University of Calabar v. Esiaga [1997] 4 NWLR [pt.502] 719, 723 and Shell Petroleum Development Company v. Lawson-Jack [1998] 4 NWLR [pt.545] 249 at 270.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant formulated four issues for determination namely:

Whether the Claimant has proved his case on the balance of probability as required by law to be entitled to judgment?

Whether by the provisions of exhibit 5 the 1st – 3rd Defendants or the General Assembly have original powers to discipline the Claimant by giving him 2 months compulsory leave and to transfer him to non-existing parish not found in exhibit 4 before making exhibits 2 and 3 respectively when the Claimant was not given fair hearing?

Whether by the provisions of exhibits 8, 7 and 5 the 5th Defendant or the Board of Governors has powers to suspend the Claimant through exhibit 6 without referring the Claimant to the appropriate body of the Uburu Presbytery where the Claimant belongs to hear and try the Claimant?

Whether it was proper for the 5th Defendant to have stopped paying the Claimant his due salary of N243, 624.67 per month from November 2014 to date and or for the Defendants to have disciplined the Claimant without giving him the opportunity to be heard as provided for in the 5th Defendant’s exhibits 5, 7 and 8 and under section 36 of the 1999 Constitution of Nigeria [as amended]?

On issue one, learned Counsel contended that the Claimant has proved his case on a balance of probability and entitled to judgment. She explained that the Claimant was not heard on the serious allegations of gross incompetence, high handedness in running the hospital and threat to life of Onyia Akaa before the decision to suspend and send him on two months’ compulsory leave was taken. Learned Counsel argued that by the clear provisions of exhibit 5 the 1st – 3rd Defendants have no power to discipline the Claimant without subjecting him to trial by Uburu Presbytery and urged the Court to declare exhibits 2 and 3 null and void. It was further argued that by the provisions of exhibit 7 page 25 in B.5 cases involving officers on secondment should be referred to the appropriate body by the Hospital Management Committee which, in the instant case, is the Claimant’s Presbytery and not the Board of Governors. It was contended that no such notice was served and urged the Court to nullify exhibit 6 because the Hospital Management Committee and the Board of Governors of the Presbyterian Joint Hospital Uburu have no powers to try the Claimant. Learned Counsel also referred to exhibit 8 page 119 section 145[1] and submitted that secondment means that the 5th Defendant maintains control over an employee and chooses to post him to a particular place. It was submitted that if the Defendants had followed the processes outlined in their Rules and Practices in disciplining the Claimant, there would be record of proceedings; and the absence of this means that the Claimant’s right to fair hearing as enshrined in section 36 of the 1999 Constitution was grossly infringed upon by the Defendants. Relying on Farajoye v. Hassan [2007] All FWLR [pt.368] 1070, it was submitted that the effect of a proved denial of fair hearing is that the decisions reached by the tribunal is a nullity. It was also contended that the Claimant is entitled to his monthly salary while under discipline and referred to section 114, page 108 of exhibit 8.

On issue two, learned Counsel adopted her submission on issue one and further submitted that the 1st – 3rd Defendants and the General Assembly do not have original jurisdiction to discipline the Claimant; and the purported parish the Claimant was transferred to is not contained in exhibit 4 because the transfer and compulsory leave did not emanate from the right source.

On issue three, learned Counsel adopted her submission on issue one and in addition submitted that the Board of Governors does not have power to try the Claimant. It was also argued that the 5th Defendant has four governing bodies known as “courts” and the General Assembly serves as the Supreme Court and thus suspending or disciplining a minister is within the powers of the Presbytery. She urged the Court to declare the Claimant’s suspension null and void and reinstate him and relied on S.P.D.C. [Nig.] Ltd v. Emehuru [2007] All FWLR [pt.381] 1694.

REPLY ON POINT OF LAW

By way of reply on point of law, the Defendants relying on Taduggoronmo v. Gotom [2002] 4 NWLR [pt.757] 453 submitted that the Claimant was seconded to and de-seconded from the Presbyterian Joint Hospital. It was also submitted that the conditions of service of the Presbyterian Joint Hospital provided for suspension which is what was meted out to the Claimant and relied on Imonikhe v. Unity Bank Plc [2011] 46 NSCQR [pt.2] 554 at 582. Referring to section 17[1][b] of the Labour Act, learned Counsel submitted that any worker on suspension is not entitled to any benefit or privilege whatsoever.

COURT’S DECISION

I have considered the processes filed in this suit and submissions of learned Counsel for the parties. I observe that the Claimant did not canvass any arguments in support of his issue four, which is deemed abandoned and hereby struck out. In view of the prolixity of the issues formulated by the parties which are mere repetition of the main issue, I will adopt issue one of the Claimant’s issues for determination with a slight modification as it addresses the issues arising from the pleadings of the parties. Therefore, the issue for determination in this suit is whether the Claimant has proved his case on a preponderance of evidence to entitle him to the reliefs sought or any of them? The law is now settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 133[1] of the Evidence Act 2011 and Rev. Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26. It is also the law that the Claimant who seeks declaratory reliefs has the onerous burden of establishing his entitlement to the reliefs. Evidence which must support a legal right or claim must be over- whelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Isiyaku Musa Jikantoro & 6Ors. v. Alhaji Haliru Dantoro & 6Ors. [2004] 5 SC [pt.11] 1 at 15, Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27 and Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claim and cannot rely on the mere admission of the Defendants or absence of defence.

The facts of this case are simple. The Claimant is a Reverend Minister and an employee of the 5th Defendant on secondment to the Presbyterian Joint Hospital, Uburu [“the Hospital”] as its Secretary. The Board of Governors of the Presbyterian Joint Hospital, Uburu by exhibit 1 subsequently appointed him acting Hospital Administrator in October 2014. By exhibit 2, the 5th Defendant redeployed the Claimant from the Presbyterian Joint Hospital, Uburu to its parish at Iba, Lagos State and directed the Claimant to resume on 1st January 2015. He was thereafter directed to proceed on two months’ compulsory leave with effect from 1st November 2014 and resume at his new location on 1st January 2015, exhibit 3. The 5th Defendant undertook to pay his salaries and allowances for the duration of his leave. In spite of this, the Board of Governors of the Presbyterian Joint Hospital, Uburu by letter dated 6th November 2014 ostensibly acting on the resolutions from its emergency meeting on 5th November 2014, exhibit DW1B, purported to suspend the Claimant from office as Administrator of the Hospital, exhibit 6. The Claimant suspecting a foul play resisted his redeployment, compulsory leave and suspension hence this action. In his final written address, the Claimant laboured to impress on the Court that his redeployment, compulsory leave and suspension were punitive and disciplinary actions taken without affording him a fair hearing. It must be noted that fair hearing is not a magic wand wielded by a litigant in an attempt to overturn administrative decisions considered unfavourable to him or a panacea for resolution of all domestic industrial disputes. The requirements of natural justice, of which fair hearing is the fulcrum, must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with. See Stephen O. Adedeji v. Police Service Commission [1968] NMLR 102 at 107. Much judicial time and litigation expenses will be saved if learned Counsel make this distinction. It is not every proceeding or dispute that learned Counsel waves the banner of fair hearing. Fair hearing is a potent instrument that must be guarded jealously and deployed cautiously.

Having said this, I am of the view that the Claimant is labouring under a gross misapprehension of his terms of engagement and relationship with the 5th Defendant and the Presbyterian Joint Hospital, Uburu. First, he failed to understand that the 5th Defendant is his employer with power to deploy him where it believes his services are needed. It is for this reason that he see his redployment to Iba Parish, Lagos State as a disciplinary action. Secondly, he appears to forget that from exhibits 5, 7 and 8 his secondment to the Presbyterian Joint Hospital, Uburu did not make him “a permanent staff” of the Hospital. Thirdly, his posting as Secretary to the Hospital did not confer on him an indefeasible title to the office that enures to him for life or for a fixed tenure. By the clear provisions of exhibit 8 tendered by the Claimant section 145 – [1] on page 119, secondment is defined thus:

“Secondment shall mean that the Presbyterian Church of Nigeria maintains control over an employee and chooses to post that employee to a particular place.”

The word “chooses” in that sub-section implies a discretion. Evidently, a minister on secondment retains his position at his place of primary assignment at the pleasure of the Presbyterian Church of Nigeria, which can, in its discretion, redeploy him at any time after due notice to him. This fact is corroborated by exhibit 7 Article B.5.4 which provides that “cases involving youth corpers or officers on secondment shall be referred to the appropriate body by the HMC in writing.” To be on secondment is to be sent to another department, institution or office of the employer in order to do or carry out a different job for a short period of time. See Alhaji Hamza Dalhatu v. Attorney General, Katsina State & 3Ors. [2007] LPELR-8460[CA] at page 40 and Rev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [2002] 4 NWLR [pt.757] 453 at 491. It is trite that an employer has the power to second, de-second and re-deploy an employee depending on the exigencies of its business. See Alhaji Hamza Dalhatu v. Attorney General, Katsina State & 3Ors. [supra] at page 40 and Rev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [2002] 4 NWLR [pt.757]453 at 491. The exercise of this power by the employer, in my view, cannot be a ground for a legal action. In Rev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [supra] at page 491, the Court of Appeal, per Mangaji, J.C.A., put it beyond peradventure thus:

“The Chambers English dictionary defines the word ‘Secondment’ to mean temporary transfer to another position. Desecondment therefore implies the reverse of the act of secondment. It simply means recalling of an employee who has been temporarily transferred to other organisation or place. Secondment being a temporary act of transfer necessarily implies reversion to the former place or position at the instance of the employer at some future date. Desecondment therefore is not a punitive measure in employer/employee relationship as the appellants seem to believe. Like transfer, secondment and desecondment in administration generally are measures aimed at boosting the efficiency of the organisation by distributing and utilising the available manpower resources in the most efficient and gainful manner.”

The Claimant during cross-examination said:

“I was at Ebem Ohafia for one year. I was at Port Harcourt for 2 years. From Port Harcourt to Abeokuta Parish, Ogun State. I stayed barely 2 years at Abeokuta. I relocated to Ohaozara in 2011 because I became the Hospital Administrator in August 2011. I was deployed to the PJH in August 2011. In all my movements and relocations, the Presbyterian Church have been the ones deciding when and where I moved to. The Board of Personnel and Training acting on the directive of the Church decides on who should be posted and where. This body also posted me to PJH.”

It is thus clear that by the course of dealing by the parties, the Claimant has been transferred to several locations, and he did not at any time complain about the transfers. Consequently, his recall and posting to Iba Parish by the 5th Defendant cannot be a subject of legal challenge. Doing so will amount to a repudiation of his contract of employment. I am fortified in this conclusion by the provision of section 136 page 116 of exhibit 8. It provides:

“Where a church worker rejects posting, and it is so established; such worker shall be suspended for a period not less than two years.”

Rejection of posting is thus an act of insubordination and the punishment is suspension. I dare to say that this provision is in tandem with decided authorities. It is settled law that wilful disobedience of lawful and reasonable orders of the employer amounts to a repudiation of the employee’s contract of service. See Nigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo at page 119. It is also the law that where an employee’s contract requires him to work anywhere in the country and he refuses a transfer, the employer is entitled to dismiss him. See Compendium of Employment and Labour Law in Nigeria by Abubakar Sadiq Ogwuche, 2nd Edition, page 42. Accordingly, I find and hold that exhibit 2 is valid and within the powers of the 5th Defendant to issue.

However, the Claimant believes that his posting to Iba Parish is a punitive action, arising from the administrative problems in the Hospital orchestrated by him and because the name of the Parish does not appear in exhibit 4, the Diary and Directory of the 5th Defendant. It is in evidence that Iba Parish exists. DW1 during cross-examination testified that:

“The Church had a Diary in 2014 and the Parishes of the Church are contained in the Diary, the ones sent. I know some of the Parishes. Iba Parish is in the Synod of the West.”

That is to say, exhibit 4 does not contain the full list of Parishes under the 5th Defendant. What is published is the list of Parishes available at the time of publication. I must say here that there is nothing on the face of exhibits 2 and 3 that shows that the decision was a disciplinary measure. No misconduct was alleged against the Claimant and so the need to follow the 5th Defendant’s disciplinary procedure did not arise. Therefore, there is no circumstance to activate the twin pillars of the rules of natural justice. In Rev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [supra] at pages 494-495, a case which is on all fours with this case, the Court of Appeal, per Mangaji, J.C.A., had this to say:

“Far from it, all that the LCCN requested was for the 2nd respondent to release the appellants back to their employer so that crisis in the church would be nipped in the bud. Therefore the question of affording the appellants fair hearing did not arise at all….the fundamental rights provisions of the Constitution regarding the right to fair hearing do not envisage seeking from an employee his representation before he is deseconded by his employer. The appellants have not shown that they were entitled to a hearing in the particular circumstance of their desecondment. I cannot in all honesty see any wrong occasioned to the appellants by their desecondment…. Even if, the appellants desecondment was improper, there seems to be no constitutional right against improper desecondment from employment just as no civil rights or obligations of the appellants are involved in the matter of the desecondment.”

I, too, do not see any wrong occasioned to the Claimant by his transfer to Iba Parish, neither has his civil rights and obligations been affected by the transfer. In saying this I am not unmindful of exhibit 6. Exhibit 6 purports to suspend the Claimant from office as Administrator of the Hospital. In my view, there is no nexus between exhibit 6 and exhibits 2 and 3. On the face of exhibit 2 it is clear that the decision to post the Claimant to Iba Parish was taken at the General Assembly meeting on 20th August 2014 and the communication was made on 27th October 2014. Exhibit 3 is a follow up to exhibit 2 and the 5th Defendant undertook to pay his salaries and allowances while on leave. Exhibit 6 was written on 6th November 2014 after an emergency Presbyterian Joint Hospital, Uburu Board of Governors meeting of 5th November 2014. In issuing exhibit 6, the Presbyterian Joint Hospital, Uburu Board of Governors was not acting in concert with the 5th Defendant or on its behalf since the Hospital Board clearly exceeded its powers. It is a trite principle of law that a principal is not bound by the acts of his agent outside his implied or apparent authority. See Joseph Ademola Akin-Taylor v. Boja Investment & Development Co. Ltd. & 3Ors. [2013] LPELR-21468[CA] at page 19. Exhibit 6 runs contrary to all norms of corporate administration. A subordinate cannot issue a directive which conflicts with or contradicts that of his superior. Learned Counsel for the Defendants contended that the Claimant is bound by exhibit 7. I have read exhibit 7 but I did not find anything in it making the conditions of service applicable to the Claimant. Article B.5.4 clearly takes the wind off the sail of this argument. It provides that cases involving youth corpers or officers on secondment shall be referred to the appropriate body by the HMC in writing. Accordingly, the Board of Governors cannot exercise disciplinary control over the Claimant.

The next question is, does the issuance of exhibit 6 amount to a denial of fair hearing? I do not think so. In the first place, the Board of Governors appears confused as to the limit of its powers. It promoted the Claimant without authority and within a space of two weeks suspended him. Secondly, there is no correlation between exhibit 6 and exhibits 2 and 3. Exhibit 6 did not emanate from the 5th Defendant, which is the employer of the Claimant, and was not issued in furtherance of exhibits 2 and 3. While the issuance of exhibits 2 and 3 is within the unquestionable authority of the 5th Defendant as employer of the Claimant, exhibit 6 did not emanate from a lawful authority and is not binding on the 5th Defendant and the Claimant. It is necessary at this point to refer to section G.13.0108.g of exhibit 5 which provides:

“The General Assembly being the Supreme Court of the Church, their decisions, whether on the merits of a cause or on matters of procedure are final.”

The Board of Governors acted without authority in issuing exhibit 6 and exhibit 6 does not in any way invalidate exhibits 2 and 3 or render it inappropriate. In the circumstance, exhibit 6 is null and void and of no effect whatsoever. Resultantly, exhibits 2 and 3 having been properly issued by the appropriate authority, the 5th Defendant, did not infringe on the Claimant’s constitutional right to fair hearing and are valid. This is more so as the Claimant acknowledged that he had been transferred to other locations in the past prior to his secondment to the Hospital and he did not complain. See exhibits DW1 G, DW1 H and DW1 J.

It needs to be added that the Claimant’s challenge of exhibit 6 shows how unstable he is. It is evident that the Board of Governors of the Hospital did not have power to promote or remove him, but he accepted the promotion with excitement and began to act as such even when the 5th Defendant invalidated the appointment on the ground that the Board of Governors did not have the authority to do so. See exhibits 1 and DW1A. When it suits him he accepts the decisions of the Board of Governors of the Hospital and where the decision does not favour him he impugns it. The Claimant appears to relish his position as Administrator of the Hospital and as a result could not see the incongruity in exhibit 1.

This now leads me to the claims of the Claimant. Relief one seeks a declaration that the purported letter of compulsory leave and transfer to Iba Parish in Lagos East dated 28/10/2014 and 27/10/2014 is unlawful, illegal, unconstitutional, null and void and of no effect for non-compliance with the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 as same is in breach of the Claimant’s right to fair hearing enshrined in section 36[1] of the 1999 Nigerian Constitution [as amended] and the provisions of the Presbyterian Church of Nigeria Policies of the General Assembly 1987-2002 vol. 1 and the PJH 1990 condition of service. As has been found above, exhibits 2 and 3 are valid and properly issued by the 5th Defendant. In issuing it, the 5th Defendant did not infringe on the Claimant’s right to fair hearing. In the words of Mangaji, J.C.A., inRev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [supra] at pages 494-495, the question of affording the Claimant fair hearing did not arise at all. The fundamental rights provisions of the Constitution of the Federal Republic of Nigeria 1999 [“the Constitution”] regarding the right to fair hearing do not envisage seeking from an employee his representation before he is deseconded by his employer. The Claimant has not shown that he is entitled to a hearing before his desecondment. In fact, he acknowledge during cross-examination that:

“In all my movements and relocations, the Presbyterian Church have been the ones deciding when and where I moved to. The Board of Personnel and Training acting on the directive of the Church decides on who should be posted and where. This body also posted me to PJH.”

In the circumstance, I cannot see any wrong occasioned to him by exhibits 2 and 3. The relief therefore fails and it is dismissed.

Relief two seeks a declaration that the purported letter of suspension from office dated 6/11/2014 is unlawful, illegal, unconstitutional, null and void and of no effect for non-compliance with the provisions of section B5[4] of the Submission of the Review of 1999 PJH condition of service and section 64.0-64.3 of the Presbyterian Church of Nigeria Policies of the General Assembly 1987-2002 vol. 1 as same is in breach of the Claimant’s right to fair hearing enshrined in section 36[1] of the 1999 Nigerian Constitution [as amended] and the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89. I found earlier in this judgment that the Board of Governors cannot exercise disciplinary control over the Claimant; but the issuance of exhibit 6 did not amount to a denial of the Claimant’s right to fair hearing. In the first place, the Board of Governors appears confused as to the limit of its powers. It promoted the Claimant without authority and within a space of two weeks suspended him. Secondly, there is no correlation between exhibit 6 and exhibits 2 and 3. Exhibit 6 did not emanate from the 5th Defendant, which is the employer of the Claimant, and was not issued in furtherance of exhibits 2 and 3. While the issuance of exhibits 2 and 3 is within the unquestionable authority of the 5th Defendant as employer of the Claimant, exhibit 6 did not emanate from a lawful authority and is not binding on the 5th Defendant and the Claimant. So, while exhibit 6 is not binding on the Claimant and therefore null and void, it does amount to a denial of his right to fair hearing. Relief two succeeds in part.

Relief three seeks a declaration that the General Assembly of the Presbyterian Church of Nigeria and the Board of Governors of the Presbyterian Joint Hospital, Uburu do not have original jurisdiction to discipline the Claimant by suspending him and or giving the Claimant two [2] months compulsory leave and transfer to any Parish without following the due process provided for in the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol. 1, the 1999 PJH Condition of Service and the Rules of Discipline contained in the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 of going through the appropriate body or court and in this instant case the Uburu Presbytery where the Claimant belongs to be cited, discipline, heard and be tried before any decision whatsoever is taken against him as same offends section 36[1] of the 1999 Nigerian Constitution [as amended]. I observed above that there is no nexus between exhibit 6 and exhibits 2 and 3. Exhibits 2 and 3 were made several days before exhibit 6 and the Board of Governors of the Hospital in issuing exhibit 6 was not acting on behalf of the General Assembly of the Presbyterian Church of Nigeria. Furthermore, exhibit 6 does not invalidate exhibits 2 and 3 which is within the competence of the General Assembly of the Presbyterian Church of Nigeria to issue. It is trite that the question of affording the Claimant fair hearing did not arise at all in the consideration of his transfer and compulsory leave. These are not punitive actions but normal administrative steps taken by the employer based on the exigencies of its business; and it is not the law that an employer should seek the employee’s representation before he is transferred or sent on compulsory leave. The Claimant has not shown which provisions of exhibits 5, 7 and 8 entitles him to be consulted before he is transferred or sent on compulsory leave. This relief fails and is hereby dismissed.

Relief four is for a declaration that the suspension and the compulsory leave of the Claimant without fair hearing and fair trial offends section 36[1] of the 1999 Nigerian Constitution [as amended], the provisions of the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89 and the provisions of the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol.1 and the provision of the 1999 PJH Condition of Service. Flowing from my findings above, relief four fails and is hereby dismissed. There is no circumstance in this case activating the provision of section 36[1] of the Constitution.

Relief five seeks for an order restoring the Claimant back to his position as the Secretary/Head Administrator of the Presbyterian Joint Hospital, Uburu as his full time employment with the Presbyterian Church of Nigeria and or with the said Presbyterian Joint Hospital, Uburu has not been terminated. This claim is misconceived. First, the Claimant’s position as Secretary of the Hospital did not confer on him an indefeasible title to the office that enures to him for life or for a fixed tenure. He is on secondment to the Hospital and by the clear provisions of exhibit 8 tendered by the Claimant section 145 – [1] on page 119, secondment is defined to mean that “the Presbyterian Church of Nigeria maintains control over an employee and chooses to post that employee to a particular place.” The 5th Defendant has exercised its powers under the terms and conditions of the contract of the parties and this Court cannot annul it. Secondly, re-instatement is not available in the master and servant relationship. No Court can force a willing employee on an unwilling employer. SeeMr. Kunle Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC] at page 19. This claim fails also and it is hereby dismissed.

Relief six is for an order restraining the Defendants from interfering with the Claimant’s duties as the Secretary and or Head Administrator of the Presbyterian Joint Hospital, Uburu in Ohaozara L.G.A save in compliance with the provisions contained in the Presbyterian Church of Nigeria Practice and Procedure Part “G” Sept. ’89, and the Presbyterian Church of Nigeria Policies of the General Assembly [1987-2002] Vol. 1, the said PJH Condition of Service of the Presbyterian Joint Hospital, Uburu and the 1999 Constitution of Nigeria [as amended]. The Claimant is an employee of the 5th Defendant posted to the Hospital as Secretary. His secondment to the Hospital carries with it the necessary implication that he can be deseconded at any time. Consequently, his posting as Secretary of the Hospital did not confer on him an indefeasible title to the office that enures to him for life or for a fixed term. His employment has not been terminated. He is still a minister of the 5th Defendant. He has only been transferred. His refusal to accept his new posting could amount to a repudiation of his contract of service with the attendant risk of loss of his employment. This relief fails and is dismissed.

Relief seven is for an order restraining the Defendants from harassing, intimidating the Claimant through the instrumentality of the Police or any other Security Agencies for no just cause. There is no evidence before me that the Claimant is being harassed by Police or other security agencies. Learned Counsel for the Claimant in her written address did not urge this on the Court. A Court of law does not make an order in vain. SeeAndu Makinde & 8Ors. v. Dawuda Akinwale & 7Ors. [1995] LPELR-1828[SC] at page 10. This relief fails and it is dismissed.

Relief eight seeks an order directing the 5th Defendant to immediately pay to the Claimant his due salary ofN243, 824.67 per month from November 2014 to when this matter is finally determined being the Secretary and Head Administrator of the Presbyterian Joint Hospital, Uburu, Ohaozara L.G.A. of Ebonyi State. There is evidence before me that the Claimant is entitled to a monthly net pay of N243, 824.67. See paragraph 33 of the amended statement of facts, paragraph 10 of the Claimant’s further statement on oath and exhibit 10. Curiously, the Defendants did not controvert this evidence in any way. I am therefore entitled to accept it as true and act on it. See Nacenn Nigeria Ltd. v. Bewac Automative Producers Ltd. [2011] LPELR-8125[SC] at page 20. However, it is the law that the Court will not direct payment to an employee for days he has not worked. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 55 – 56. Even the Bible enjoins that he who does not work should not eat. The Claimant refused to resume at his new location and there is no evidence that he has worked for the 5th Defendant since January 2015. Consequently, he is not entitled to any salary for the period he has not worked. Be that as it may, exhibit 3 contains an undertaking by the 5th Defendant to pay the Claimant’s salary for November and December 2014 while he is on leave. The two months’ salary the Claimant is entitled to and that he shall get. Consequently, this relief succeeds in part. An order is hereby made directing the 5th Defendant to pay to the Claimant his salary for the months of November and December 2014 in the sum of N243, 824.67 per month.

Relief nine is for an order directing the Defendants to immediately include the Claimant’s name as one of the signatories to the 5th Defendant’s Presbyterian Joint Hospital [PJH] Uburu’s designated bank account being the Secretary and Head Administrator of the said Presbyterian Joint Hospital [PJH] Uburu. The Claimant is no longer part of the management team of the Hospital and has not shown any right to be a signatory to the Hospital’s account. This relief fails and is hereby dismissed.

Relief ten claims the sum ofN1, 000,000 from the Defendants for unlawfully suspending the Claimant from his office as the Secretary/Head Administrator of the Presbyterian Joint Hospital Uburu for no just cause and without giving him the opportunity to be heard. I have observed earlier in this judgment that the Claimant’s posting as Secretary of the Hospital did not confer on him an indefeasible title to the office that enures to him for life or for a fixed tenure. His employment has not been terminated. Exhibit 6 which purportedly suspended him is not from a lawful authority and accordingly was set aside. However, the Claimant has been lawfully transferred to Iba Parish long before his alleged suspension. He has not proved his entitlement to the sum of N1, 000,000 or any sum whatsoever. He has not established a breach of contract. Damages are not awarded in vacuo. They are awarded for breach of contract or breach of duty owed to the Claimant. See Udofel Limited & Anor. v. Skye Bank Plc [2014] LPELR-22742[CA] at pages 41-42. The Court is not a Father Christmas that dishes out gifts to every supplicant. This relief fails and it is dismissed.

Reliefs eleven and twelve seek the sum ofN1, 000,000 for unlawfully giving the Claimant 2 months’ compulsory leave without giving him fair hearing through Uburu Presbytery where the Claimant belongs and N1, 000,000 for disgracing and tarnishing the image and integrity of the Claimant as a vibrant minister of God respectively. There is no evidence before me in proof of these claims. As I held earlier, the Claimant’s transfer and directive to proceed on two months’ leave with pay is within the administrative competence of the 5th Defendant. The Claimant has not suffered any damage in consequence. These reliefs fail and are hereby dismissed.

Reliefs 13, 14 and 15 seek the sum ofN2, 000,000 for unlawfully putting the Claimant under severe financial hardship for non-payment of the Claimant’s due salary of N243, 824.67 per month from November 2014 till date; N2, 000,000 for unlawfully using the Police to harass, detain and intimidate the Claimant for no justifiable reason on 3/12/2014 through the 7th and 11th Defendants’ petition to the Commissioner of Police dated 24/11/2014 herein attached and marked as exhibit M and N2, 000,000 as general damages. These claims are general damages and within the discretion of the Court to grant. However, general damages are not granted in vacuo. Once a breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31. No breach of contract has been established. The 5th Defendant, which is the Claimant’s employer, has not breached the terms of his employment. Rather, it is the Claimant who is in breach of the terms of his employment. Consequently, the Claimant is not entitled to any damages. These reliefs fail and are dismissed.

On the whole, this action succeeds in part. Reliefs 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 fail and are hereby dismissed. Reliefs 2 and 8 succeed in part. For the avoidance of doubt, I find and hold as follows:

Relief two succeeds in part. The Board of Governors of the Presbyterian Joint Hospital, Uburu does not have disciplinary control over the Claimant, accordingly exhibit 6 is null, void and of no effect whatsoever and it is hereby set aside. However, the issuance of exhibit 6 suspending the Claimant from office as Administrator of the Hospital did not amount to a denial of the Claimant’s right to fair hearing. The Claimant has been lawfully transferred to Iba Parish and directed to proceed on two months’ leave with pay before the service on him of exhibit 6 by the Board of Governors of the Hospital.

Relief 8 succeeds in part. It is the law that the Court will not direct payment to an employee for days he has not worked. Even the Bible enjoins that he who does not work should not eat. The Claimant refused to resume at his new location and there is no evidence that he has worked for the 5th Defendant since January 2015. Consequently, he is not entitled to any salary for the period he has not worked. Be that as it may, exhibit 3 contains an undertaking by the 5th Defendant to pay the Claimant’s salary for November and December 2014 while he is on the approved two months’ leave. This, the Claimant is entitled to and this he will get. Consequently, an order is hereby made directing the 5th Defendant to pay to the Claimant within seven days from the date of this judgment his salary for the months of November and December 2014 in the sum of N243, 824.67 per month.