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National Industrial Court

Rita Obianuju Salisu -VS- Kogi State Specialist Hospital & 2 Ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

16TH DAY OF DECEMBER 2019                                           SUIT NO:NICN/LKJ/23/2018

BETWEEN

 

RITA OBIANUJU SALIHU…………………………………………..…………………………CLAIMANT

 

AND

 

  1. KOGI STATE SPECIALIST HOSPITAL
  2. DR. EHALAIYE BOLORUNDURO FUNSHO

(CHIEF MEDICAL DIRECTOR)                                                                DEFENDANTS

  1. ALH. HASSAN ABDULLAHI ZAKARI

(BOARD CHAIRMAN KOGI STATE SPECIALIST

HOSPITAL)

 

JUDGMENT

  1. This suit was commenced by way of complaint on the 25th day of September, 2018, accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents to be relied on at the trial and photocopies of documents to be tendered as exhibits.
  2. The defendants’ Memorandum of Appearance, Statement of Defence and other accompanying documents were deemed filed and served on the 13th day of November, 2018 by this Honourable Court. The claimant then filed a reply to the defendants’ joint statement of defence on the 26th day of November, 2018. After the close of pleadings, the matter was set down for hearing.
  3. The Claimant is vide the complaint seeking the following reliefs:
  4. A DECLARATION that she never absconded from work at anytime and that serving the nation after obtaining her degree in nursing is a mandatory requirement which the law expects her to fulfill.
  5. A DECLARATION that the directive of the Kogi State Specialist Hospital dated 03/01/2018 has no effect on her as
  6. The letter post-dated her commencement of National Youth Service.
  7. She was never a part-Time or full student as her study was during her leisure hours only and does not qualify as part-time or full time study because during the period of the entire study, her work output was never negatively affected.
  8. That the Claimant was not responsible for positing herself and that the KSSH could have requested directly from the NYSC to post her back to KSSH to do her youth service if it so desired.

iii.        A DECLARATION that the purported dismissal from KSSH is malicious, null, void and of no effect whatsoever.

  1. AN ORDER of this Honourable Court to the defendants reinstating the claimant back to this Honourable Court to the defendants reinstating the Claimant back to the service of the KSSH.
  2. AN ORDER of his Honourable Court to the defendants grating the Claimant full rights to the promotion she was denied on 24th March, 2018.
  3. AN ORDER of this Honourable Court granting the Claimant all arrears of emolument due, including salaries allowance, leave bonuses any other pecuniary benefits and entitlements.

vii.       AN ORDER of this Honourable Court  to the defendants awarding Five Million Naira (5,000,000) damages to the Claimant for wrongful dismissal, trauma resulting therefrom and suffering from her being despised in the eyes of right thinking colleagues at work and right thinking members of the public.

viii.      Any other order or orders as this Honourable Court  may deem fit to make.

  1. The claimant testifies in proof of her case as CL. She testified that she was employed as a nursing offiocer vide letter dated 25/3/14 refe. KSSH/PER/T/VOL/IIT. The claimant’s appointment was confirmed on 7/4/16 with effect from 01/04/16 as per letter dated 30/3/16. The claimant stated that vide letter dated 01/06/15, she notified the 1st defendant of her admission into the distant learning programme of the International University, Bermenda Cameroun for the 2014/2015 academic session. CL stated that she made it clear in her letter of notification that the programme will not affect her work as she will study when off work and even her examination was scheduled to take place during her leave periods. That as part of her study requirement, she was given a schedule for internship which the hospiutal management graciously monitored, directed and recommended on completion. CL, stated that at the completion of her study she notified the 1st defendant vide letter dated 25/7/17, attaching her certificate of graduation No. 1508208. Upon receipt of the letter of notification, the management of the 1st defendant vide letter dated 15/8/17 congratulated the claimant. CL also stated that upon receipt of call-up letter from the National Youth Service Corps, to serve in Batch B of 2017 service, she applied vide letter dated 17/11/17 for 3 weeks leave to enable her attend the NYSC orientation camp. Consequent upon her application the duty roaster was asdjusted to show that the claimant was attending orientation camp. At the end of orientation, the claimant was posted to serve at the Federal Medical Centre Lokoja. The claimant vide letter dated 11/11/17, she wrote to ask for leave of absence, to enable her attend the National Youth Service (NYSC). Consequent, upon her letter request for leave of absence to do her national youth service, her name was removed from the duty roaster completely to indicate that she would not be available until youth service is over. The duty roaster for March, April, May, and July were tendered and admitted in evidence.
  2. CL, also stated that in march the 1st defendant’s managemenmt commenced a promotion exercise and she was verbally informed to present her documents for verification on 16/3/19 which she did and her document found to be in order. CL, stated that she was due for promotion since April 2017, but due to the reasons best known to the management, the promotion exercise was carried over to 2018 commencing in March. The claimant states that she was scheduled for promotion interview on March 21, 2018 and rather than allowed her to do the interview, she was disallowed and a query was issued to her by the management of the 1st defendant dated 20/4/18. The claimant responded to the issues raised in the query on 20/4/18. In the response to the query reference was made to an internal memo dated 3/1/18 address to all the staff from the 1st defendant, which was later addressed personally to the claimant. CL stated that the internal memo was maliciously produced to prevent her from fulfilling her obligation to the nation by serving in the National Youth Service Corps and to later deny her the promotion she was due for and a query issued to justify her not being promoted.
  3. CL, stated that the query was issued to her four months after resumption at FMC for the National Youth Service Corps. CL, also stated that on 8/5/18, she wrote a letter to the National Association of Nurses and Midwives, Kogi State Specialist Hospital Chapter Lokoja through the Chairman informing him of the query and who did nothing about it. CL, received a letter dated 17/5/18 inviting her to appear before the Senior Stasff Disciplinary Committee on 24/5/18 and she answered all questions posed to her and pointed out her innocence regarding all the allegations levelled against her to the SSDC and she was expecting that her promotion was going to be given to her only for her to be asked to face another disciplinary committee and appointment promotion said to be from the Board of the Management of the Hospital. CL, stated that the nature of the punishment that may likely to be meted out to her was not written in the letter of 17/4/18 inviting her to face the SSDC neither was it in the letter of 28/6/18 inviting her to face the APDC on 3/7/18. CL, stated that at the SSDC meeting of 24/5/18, the management denied her notification of admission. Consequently, on 25/5/18 she wrote to give additional information to prove that the management was aware of her admission and showed that they approved the internship she underwent in the Hospital. CL, stated that the outcome of her meeting with SSD and the Boardis the dismissal letter issued her dated 6/8/18 ref. no. KSSH/PER/590/VOL/SO captioned dismissal from service of Kogi State Specialist Hospital for Act of gross misconduct.
  4. Under cross examination CL stated that she has been working with the Defendant for 4 years. The management approved her leave of absence. The process of approval started with her head of Department who is a member of the management.  The head of her Department does not give final approval, but recommendto CMD. The Chief Medical Director gives the final approval. The duty raster means approval of leave. The approval letter for annual leavefor 2017 was not a duty roaster. She did not respond to exhibit CLH. It was after 4 four Months of her application that she was served with exhibit CLH. That she was issued with a query. That she went to the CMD and told him about her application and he told her orally to go. She stated that even the annual leave she had been going, she has not been getting letters of approval. That she knows in public service official means of communication is via documents. That she does not have any document before the court to show approval to embark on leave of absence. That she has not received salary from NYSC, but she collected allowance. She did not also receive salary from the 1st Defendant for the period she served. The only salary paid was December 2017, which was 60% and she considered it to be the balance of 40% salary short paid her.

THE CASE FOR THE DEFENDANTS.

  1. The defendants at the close of the claimant’s case called their 3 listed witnesses to testify in their defence. Dr. Wada A.S. Omale, testified as CL, Mr. Mokelu Dele testified as CL2, and Mr. Okpanachi Stephen testified as CL3. The defendants tendered two exhibits marked as DWA and DWB1-2. The witness statement on oath deposed to by CL and CL2, were the same except the names and designation of the witnesses.
  2. The case for the defendants as can be gathered from the joint statement of defence and the depositions contained in the witness statements on oaths of CL and CL2, is to the effect that the claimant was a member of staff of the defendants prior to her dismissal from service on 6/8/18 based on gross misconduct for absconding from work. It was stated that on the 7th of November, 2017, the claimant applied for 3 weeks leave to attend NYSC Orientation Camp and before the management of the 1st defendant could arrive at a decision the Claimant proceeded for the camp. As a result of her absence from duty, the duty roaster was amended so as not to give room for lapses in the department of nursing of the 1st defendant. The Claimant further applied on the 11th of December, 2017 to embark on her NYSC programme at FMC and again, before the approval was granted, the Claimant did not resume work on the 12th of December, 2017 till the time of her dismissal. Even after the management communicated the decision of the Head of Service   of Kogi State via Exhibit CLH, the Claimant did not deem it fit to respond to the letter to transfer her service to the 1st defendant. After waiting for a period of 4 months of the Claimant’s absence from duty without leave, the management of the 1st defendant issued a query to the Claimant via EXHIBIT CLK1. In the Claimant’s response, rather than exculpate herself, the Claimant insulted the management of the 1st defendant as being unjust, malicious, arbitral use of power, unnecessary fault finding among others. The Claimant was dismissed after she was found wanting by two different panels. The Claimant then filed this suit being dissatisfied with the decision of the defendants.
  3. DW1, under cross examination testified he joined services of the 1st Defendant on 22/11/17, as Chief consultant optholmologist. He took over on 1/5/18, as Chief Medical Advisory Committee. That he was not in around when she was queried. That the query was not what led to hr sack , it only commenced the process. That she was supposed to be given 3 queries. He does nt know how many was given to her. He stated that claimant commenced her studies without confirmation. Any officer employed will serve for two years before confirmation. He cannot remember specific number of the rule. But, knows there is a rule. He stated that he is aware the claimant notified the hospital of her admission. But he is not aware if there was any response. He stated that by his paragraph 7 of statement on oath her letter does not require response. He was not aware of any response to exhibit CLW (Letter of notification of admission).exhibit CLD1-2 is recommendation on internship. The hospital is aware of her studies. That wen he fnished his studies he did NYSC. That NYSC is compulsoryfor persons under 30 years of age. He was not aware whether clamant was allowed to go for orientation. But they are aware she went. There was no query for going for NYSC. she was not given provisional permission to do her NYSC in the hospital. He is aware she was posted to Federal Medical Centre, but they are not happyshe was posted there. Exhibit CLG is a general letter to staff of the 1st Defendant the Claimant was not granted leave for part-time  or full-time study leave.the claimant is not affected by exhibit CLGsince she was not granted any leave. He was not aware whether exhibit CLK1-4 was issued to her after her invitation to promotion interview. Exhibit DW1 is invitation to all members of staff due forpromotion. I know the signatory but I don’t know the signature.
  4. DW1, continued under cross examination, that he knows that the claimant was quried in April 2018, for absentism. I am not aware of the content of the document. Exhibit CLK1-4, is a letter issued in April 2018 and the claimant started her NYSC in December 2017 4 Months gap. The members of the committee as in CLE are made up of Chief Medical Director, Director Admin, Chief Auditor, Director works, Head of Planning and Head Nursing Department. Vide exhibit CLD, the claimant was invited to attend another committee. There was no need to state offences and punishment in the invitation.
  5. Cross-examination of DW2, he testified that he is acting Director Nursing Department. That he is a gradate of National Open University Lokoja campus where he obtained Bachlor of Science in Nursing. That as at the time of completion of his studies he was 50years of aga. He stated that the main issue with the claimant is that she went for NYSC. That they are not in good relationship with the claimant. In October 2017 there was strike which involved staff of Kogi Specialist Hospital. When the strike was called off, the Claimant did not show up. As per as her job is concerned he does not have any problem with her. He was Assistant Director in 2017, when claimant wants to go for NYSC. There was Head of Nursing Department then. He was not the the one that prepared all the duty roasters. He stated he prepared CLy December, CLP, CLO, CLL. In October 2017 there was strike. He did not see her until.
  6. Under Cross-Examination of DW3, testified that he assumed duty as Director Administration in 2018. He met case of nurse that absconded from her duty without taking leave, there was no query to that effect. He was asked by the CMD to review her case that was what led to the query to the claimant. There was no formal complant to his office. His offce has no room for gossips. He is familier with procedure for discipline.The claimant was given query, thereafter to Board. The initial query was given to her based on which was asked to appear before the committee. Staff matters are offivial matters and issues have to be put in writing. He agreed that when staff appears for for leaveit should be treated officially. He does not know whether there was reply to her application to go on orientation.  He is aware sh is in line with his answers. He did not communicate any answer to her. Exhibit CLK1-4e applied to go for NYSC. But there was no approval there was a follow up and she was advised to serve at Kogi state Specialist Hospital. The claimant did not receive any query befre the case for disciplinary committee. His supervision is through feelers.

THE SUBMISSION OF THE DEFENDANT

  1. The defendants in their final written addresses formulated three issues for determination they are:-
  2.             Whether the management of the 1st Defendant was right in dismissing the Claimant from its service on ground of serious misconduct, viz: absence from duty without leave?
  3.             Whether the dismissal of the Claimant from the service of the 1st defendant via EXHIBIT CLC was in line with the procedures laid down in the Public Service Rule, 2008 Edition?

III.            Whether the Claimant is entitled to the grant of all reliefs sought in her pleadings?

ARGUMENT

  1. ISSUE ONE: Whether the management of the 1st Defendant was right in dismissing the Claimant from its service on ground of serious misconduct, viz: absence from duty without leave?
  2. Counsel for the defendants commenced his argument by submitting that that the claimant was rightfully dismissed by the management of the 1st defendant for act of serious misconduct as contained in Exhibits CLC. P.S.R 030401 of the Public Service Rules 2008 Edition applicable to Kogi State defined serious misconduct as

‘’A specific act of serious wrongdoing and improper behaviour which is inimical to the image of service and which can be investigated and if proven, may lead to dismissal.’’

  1. Counsel contended that the public service rules went ahead to list serious acts of misconduct to include inter-alia absence from duty without leave. See P.S.R 030402(e) of the Public Service Rules 2008 Edition. The reason for the dismissal of the claimant was clearly stated in her dismissal letter-Exhibit CLC. She absconded from her duty without any leave granted to her. Despite all the efforts of the management of the 1st defendant to get her back to her duty post through the issuance of Exhibit CLH, she was   adamant and failed to return to work. Counsel also contended that the claimant in her evidence during cross examination stated that “in my experience, I admit that the official way of doing thing is always communicated in writing. There is nothing in writing to show that I can embark on leave of absence.” Counsel submitted that the claimant’s admission is against her interest while on oath. What is more, the law had long being settled that facts admitted requires no further prove. See Vandighi V. Hale (2014) 49 WRN138 @147 and Nigerian Bottling Co Plc Ubani (2014) 7 WRN 1@14.
  2. In the evidence of DW1, (Dr. Wada A. S. Omale) and DW3 (MR. Dele Mokelu), that is, in paragraph 12 of their respective written statement on oath they stated that the claimant did not wait for the decision or approval of the management of the 1st defendant before proceeding on her NYSC orientation camp. They testified further in paragraph 13 that again on the 11th of December, 2017 the claimant equally applied for leave of absence and before the management of the 1st defendant could reach a         decision, the claimant did not come to work the following day being 12th December, 2017 and proceeded on her own accord to commence her NYSC without leave or permission of the 1st defendant. Counsel argued that it is interesting to state that the claimant never controverted these facts neither by a rebuttal or under cross examination. Hence, this evidence should be deemed admitted. In support of this contention counsel relied on the Court of Appeal decision in NSPRI V. BIR, KWARA STATE (2014) 14 W.R.N. P. 81 @ Pp. 112- 113, Lines 45-10 where it was held us follows:

“The settled position of the law is that affidavit evidence that is in not denied is deemed admitted, and being unchallenged evidence, the court is not only to accept, but must act on it.”

  1. It is the contention of counsel based on the above well-established principle of law that all the paragraphs in the joint statement of defence and evidence on oath of the defendants remained uncontroverted and therefore admitted. Counsel urged the court to so hold.
  2. It is further submitted that despite the attitude of the claimant, the 1st defendant wrote Exhibit DW3B to The Head of Service, Kogi State for clarification on the application of the claimant and same was responded to via Exhibit DW3A stating that the claimant and any other staff affected should carry out their NYSC programme in the 1st defendant, this was communicated to the claimant via Exhibit CLH and the claimant refused, neglected and failed to respond to the said Exhibit CLH. This fact further buttressed by the evidence of the claimant under cross examination when she stated that “I did not respond to the letter addressed to me on the 3rd January, 2018”. This shows that the claimant lacks respect to constituted authority of the 1st defendant.
  3. Counsel also contended that in the evidence of DW1 (Dr. Wada A.S. Omale) and DW3 (Mr. Dele Mokelu), that is, in paragraph 22 of their respective written statement on oath they stated that after 4 months of the claimant absconding from service, the management of the 1st defendant issued the claimant a query via Exhibit CLK 1 which was signed by a superior officer of the 1st defendant. Furthermore, DW1 and DW3 during their evidence in chief at paragraphs 17 and 18 of their statement on oath stated that there are procedures to be followed before leave of absence can be granted. The claimant was expected to wait and process her approval before embarking on her leave, this she failed to do and without approval, the claimant absconded.
  4. Counsel also contended that the claimant copiously in her evidence in chief made heavy weather on the omission of her name from the duty roaster to signify approval for leave and even tendered Exhibits CLP, CLO, CLM AND CLN. In fact, the claimant stated further in paragraph 6 of her additional written statement on oath that the head of nursing granted her leave to go for her NYSC program. In a swift contradiction of the facts, the claimant under cross examination stated that “by virtue of the time I have worked with the 1st defendant the management of the hospital approves the annual or any other leave. The head of nursing does not approve leave. The CMD is the final stop for approval…. the approval of my annual leave in 2017 was not a duty roaster.” It is trite law that a party to an action cannot be allowed to approbate and reprobate on the same issue. That amounts to gambling and dishonest advocacy and as such, her evidence should not be believed. On this submission counsel refers to the decision of the apex Court where it was held thus:

“ A party to an action cannot be allowed to approbate and reprobate on the same issue as this will amount to gambling and dishonest advocacy” See: Alaribe Vs. Okwuonu (2016) 1 NWLR (Pt. 1492) P.66, Paras. D-E.

  1. Counsel posited that the head of nursing who prepared duty roaster does not approve leave and also the claimant had never been given a duty roaster as her approval for leave. What is  more, the head of nursing, DW2-Okpanachi Stephen stated in his evidence in chief at paragraph 7, 11 and 12 that there was no official permission from his department and that the duty roaster was only adjusted so that there will not be lapses in carrying out official duties in his department. He concluded by stating that he does not have such power to approve a leave of absence to any staff of the 1st defendant. DW3 in his evidence under cross examination stated that when the claimant applied for NYSC leave, there was no approval but a follow up letter to serve in the hospital. Yet, the claimant did not deem it fit to obey the instructions of the 1st defendant’s management which also amounts to insubordination.
  2. The questions begging for answer are: Can it be said that the claimant was right to have embarked on leave without approval? Does the claimant have the right to suo moto absent herself from duty for whatever reason? The answer to this poser is in the negative as the claimant cannot embark on leave without any approval and the claimant has no right whatever to suo moto absent herself from duty as she cannot approve leave for herself. This lead to the question? Did the claimant contravene PSR 030402 (e) of the Public Service Rules, 2008 Edition? From all the evidence before this court, it had been established that the claimant absented herself from duty without leave hence contravene PRS 030402 (e). Counsel urged the court to so hold. Counsel also urged the court hold that from all the evidence adduced at trial and on the strength of authorities and submission of the defendants, the management of the 1st Defendant was right to have dismissed the claimant having established a case of serious misconduct – absence from duty without leave.
  3. ISSUE TWO: Whether the dismissal of the Claimant from the service of the 1st defendant via EXHIBIT CLC was in line with the procedures laid down in the Public Service Rule, 2008 Edition?
  4. Counsel started his submission by arguing that Public Service Rule is a subsidiary legislation having the backing of the construction and it directs the procedures to be taken by the Civil Service in any given situation as it relates to the appointment, discipline and dismissal of a civil servant. In support of this position reliance was placed on the case of SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR-3056 (SC). Counsel submitted that though Kogi State civil service is yet to make her civil service rules, the State Executive Council had adopted the Public Service Rules, 2008 Edition to govern the activities of the Kogi Sate Civil Service. PSR 030307 of the Public Service Rules 2008 Edition gives a vivid procedure for the dismissal of a civil servant. The said rule provides thus:

Unless the method of dismissal is otherwise provided for in this Rule, an officer in the Federal Public Service may be dismissed by the Federal Civil Service commission only in accordance with this Rule.

The officer shall be notified in writing of the grounds on which it is proposed to discipline    him/her. The query should be precise and to the point…

  1. II.              …..
  2. III.             If the officer submits his/her representations  and Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself and considers that the officer should be dismissed, it shall take such action accordingly….

iii.                IV. …..

  1. V.  Where necessary, the commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the commission……
  2. VI. The officer shall be informed that, on a specific date, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/ herself……
  3. VII.            …..

vii.             VIII.          …..

viii.           IX. …..

  1. X.  If upon considering the report of the board together with the evidence and materials documents  relating to the case, the commission is of the opinion that the officer should be dismissed, such action shall immediately be taken.
  2. According to counsel for the defendants, the defendants have strictly followed the above procedure in dismissing the claimant from the service of the 1st defendant. This fact was attested to by the claimant in her evidence as well as the documents tendered by the claimant viz: EXHIBITS CLK1, CLJ1-3, CLE AND CLD. Counsel also relied on paragraphs 18, 19, 25, 26 and 27 of the claimant’s written statement on oath.
  3. It is imperative to state that the first step which is the issuance of query   to the claimant was carried out and evidenced by Exhibit CLK1. The claimant in responding to this query left the subject matter of the query and was chasing shadows  when she resulted in insulting the management of the 1st defendant as being “unjust, malicious, abuse of power, unnecessary fault finding….” Rather than giving reasons for her actions. Counsel referred the court to paragraph 8 of EXHIBIT CLJ 1-3. The management of the 1st defendant not being satisfied with the response of the claimant proceeded to the second step which is the invitation to the claimant to appear before a panel or board, this is also evidence by Exhibit CLE and CLD. The claimant was first invited to the Senior Staff Disciplinary Committee (SSDC) to give her further opportunity to exculpate herself from the act of misconduct leveled against her, yet she continued to insult the management rather than defend herself or even apologize for her wrong doing. This attitude of the claimant led to the setting up of the KSSH Board and the claimant was further invited to the Appointment, Promotion and Disciplinary committee KSSH Board Meeting via Exhibit CLD. The recommendation of the committee was that the claimant be dismissed from the service of the 1st defendant for absenting herself from duty without leave and this recommendation was effected via Exhibit CLC. It is penitent to chip in that this procedure followed by the defendants was never controverted during the trial by the claimant. In fact, it was strengthened by the evidence of DW3 under cross examination. The settled position of the law is that affidavit evidence that is not denied is deemed                                                                                                                                                                                                                                                                                                              admitted, and being unchallenged evidence, the court is not only to accept, but must act on it. In support of this contention counsel cited the case of NSPRI V. BIR, KWARA STATE (Supra) What is more, the Court of Appeal had given credence to this rule when it held in the case of FMC, IDO EKITI & ORS.V. KOLAWOLE (2011)LPELR-4149 (CA) while stating the procedure for dismissal under the Public Service Rule thus:

“Rule 04306 of the Public Service Rules stipulates the procedure to be followed before the appointment of a Senior Public Officer in the cadre of the respondent could be terminated; he must be given a query, invited to a panel, shown whatever document that would be used against him and witnesses that might testify against him. Per UWA, J.C.A. (P. 19, Paras. A-B)

  1. It is the contention of counsel that the defendants had followed the due procedure for the discipline and subsequent dismissal of the claimant having given the claimant sufficient fair hearing though abused by the claimant. Counsel urged the court to hold so and resolve issue two in favour of the defendants.
  2. ISSUE THREE: Whether the Claimant is entitled to the grant of all reliefs sought in her pleadings. In arguing this issue counsel posited that it is trite law that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In support of this contention counsel cited Section 131 of the Evidence Act. 2011 and the case of SOKWO V. KPONGBO (2008) ALL FWLR (PART 410)680 @ P. 701-702, Paras. H-A, where it was held thus:

‘’By the provision of section 135 of the Evidence Act, a Plaintiff who asserts must prove his case with credible and unchallenged evidence. In civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce credible evidence, for such cases are decided on preponderance of evidence and balance of probability. It is after a plaintiff has proved his case that the burden of proof shifts. In the instant case, the plaintiff failed to prove his claim at the trial court and therefore the trial court and the court of appeal rightly dismissed his claims.’’

  1. For the claimant to succeed on her claims, the onus is on her to prove the assertions as true to the extent that the court will belief her story above that of the defendants. This, the claimant have failed to do. Counsel reiterated that the burden of proving an assertion of facts lies on the person asserting that such a fact exists. The Supreme Court has firmly given a befitting burial to this issue when it held in Akande V. Adisa (2012) 49 WRNP 1@ (P.43) lines. 20-25 per Justice Peter-Odili, JSC held thus:

“the burden  is on he who asserts especially where the custom has not received a judicial pronouncement….”

  1. It is the submission of counsel that the onus of prove is on the party who claims for a declaratory relief to show to the satisfaction of the Court that he is entitled to same upon the strength of his case not on the weakness of the defendants. The onus of prove does not shift until discharge. To support this proposition counsel relied on the case of CPC V INEC (2011) 18 NWLR (Pt. 1279) 493 at 539 -540, where the Supreme Court held thus:

“In a claim declaration, the onus is on the Plaintiff to establish his claim upon the strength of his case and not upon the weakness of the case of the Defendant. The Plaintiff must therefore satisfy the Court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration in his favour.’’

  1. Counsel contended that in the instant case, reliefs 1, 2 and 3 are declaratory reliefs which can only be granted on the strength of the claimant’s evidence. What is more, the claimant herself had laid to rest her first claim when she admitted that she went for her NYSC program without approval. There is no evidence to warrant the claimant to relief 2. The claimant did not prove that her dismissal from the employment of the 1st defendant is malicious, null, void and of no effect thus relief 3 should be disregarded. In respect of relief four, it is contended that it is trite law that a court will not order reinstatement of an employee whose conduct has been detrimental to the interest of the employer. in support of this view counsel relied on the cases of FIRST BANK OF NIGERIA PLC V. MR. EFOBI EFFIONG BAM (2010) LPELR-4160 (CA), AJAYI V. TEXACO LTD (1987)3 NWLR-(PT.62) 577. The claimant in this case had acted in a way and manner that has been detrimental to the 1st defendant and an order reinstating her will cause further trouble and detriment to the defendants. The law and equality does not laid a party with dirty hands as the principle of equity is trite on this that he who comes to equity must come with clean hands. In support of this contention counsel placed reliance on the case of ALALADE V.NATIONALBANK OF NIGERIA LTS (NO.2) (1997) LPELR-5540 (CA). The claimant who had breached the Rules of the Public Service cannot be heard crying for help on the emotional ground of supposed hatred. In respect of relief five, there is no evidence before this court to show that the claimant is entitled to promotion. The defendants who are to say when a person is entitled for promotion had testified that the claimant was not invited for any interview or due for any promotion. There is no evidence supporting the relief 6 to entitle the claimant to such claim. In respect of relief 7 that the special damages must be strictly proved. See Agunwa v.Onukwe (1962)1 All NLR 537. The claimant did not lead any evidence as to her claims. On the whole counsel urged the court to discountenance the claims of the claimant and resolve issue three in favour of the defendants.
  2. In concluding his submission counsel contended that the claimant have woefully failed to prove her case on preponderance of evidence to entitle her to any of the reliefs she is seeking this Honourable Court to grant. Counsel urged the court to resolve all the three issues raised in favour of the defendants and dismiss the suit of the claimant for being  frivolous, malicious, time wasting and unwarranted.

THE SUBMISSION OF THE CLAIMANT

  1. The claimant formulated four issues for determination. They are:-
  2. Whether or not the claimant absconded from duty.
  3. Whether or not the claimant refused to comply with government directive.
  4. Whether or not the disciplinary procedure adopted against the claimant was right and in accordance with the Federal Public Service Rules 2008 in use in Kogi State.
  5. Whether or not the claimant is entitled to the relief claimed.

ARGUMENT:

  1. ISSUE ONE: ‘’whether or not the claimant absconded from duty.’’ It is the contention of counsel for the claimant that a search in the public service rules does not reveal an offence tagged “ABSCONDING FROM DUTY”. This is not surprising however as we shall argue shortly on the meaning of the word ‘abscond’. Before the main argument, we need to examine the meaning of the word ‘abscond’ as the word ‘absconding’ is the present continuous tense of ‘abscond’ BLACK’S LAW DICTIONARY EIGHTH EDITION AT PAGE 7 defines the word ‘abscond’ as
  2. ‘To depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process
  3. To leave a place, usually hurriedly with another’s money or property.
  4. THE CHAMBERS DICTIONARY, 10TH EDITION, 2008 BY ALLIED PRIVATE PUBLISHERS LIMITED AT PAGE 5 defines ‘abscond’ as “To hide or leave quickly and secretly, especially to escape a legal process”. The key words in these definitions are: secretly, hide, leave or depart hurriedly or quickly with any of the aims in the definition.
  5. When the claimant received her call-up letter on the 17th November 2017 she did not hurry or leave the office quickly or hide from the office. Rather, she applied for 3 weeks leave to enable her attend orientation camp scheduled to commence on 21st November 2017 at NYSC PERM.  ORIENT. CAMP ASAYA Kabba. On this counsel relied on exhibits CLQ and CLR being call-up letter, and application letter for a 3-week orientation camp respectively. Four days elapsed and the defendant was allowed to go by her Head of Department without receiving written approval of her leave application. For clarification, the head of department was not Mr. Okpanachi Stephen (DW 2) but one Mrs. Sarah Elumokwo who retired and gave way to DW2 as the present Head of Department. The claimant was allowed to go without being given a written approval. In paragraph 13 of the claimant’s statement of facts, the claimant stated that the duty roaster for December 2017 exhibit CLL was adjusted to take care of her absence. The 8th name on the roaster, the remark NYSC CAMP, and the remarks column showing that the claimant would resume on the 11th December, 2017 all in the handwriting of DW 2 who acknowledged under cross-examination that he prepared and signed the roaster. No query issued out of the fact that claimant left for NYSC camp without approval being committed into writing. NYSC posted the claimant to her primary place of assignment, being Federal Medical Centre, Lokoja Again, she applied for leave of absence to serve the one-year compulsory service. She was allowed to go without written approval. Under cross examination, the claimant said, I went to the Chief Medical Director and he said I should go for the service. The claimant admitted under cross-examination that “There was nothing  in writing before the court to show that I could go for NYSC service.” however, my lord in the case of MANSOURY V. CARNCO FOODS (NIGERIA) LTD CITATION: (2014) LPELR-23125 (CA) it was held thus:

“It is certainly not the law that all admissions are necessarily conclusive against the maker, as each and every admission must be carefully evaluated and considered by the court, against the particular circumstance under which it was made.” Per NIMPAR.J.C.A. (p. 41, paras A-G).

  1. It is in the light of the above authority that counsel urged the court not to view claimant’s admission that she did not obtain approval in writing as conclusive.  She was required to apply for leave officially, she did. The management received the application, but did not act upon it. She said the Chief Medical Director told her to go for her service and also Dr. Wada A.S. Omale (DW1), (Chairman Medical Advisory Committee) under cross examination said “Provisional approval” was granted. This admission by DW1 quite signification and fortifies the case. The mere fact that the duty roaster was prepared on the 28th of November 2017 with date of resumption as 11th December 2017 clearly shows the awareness of the staff of the claimanst’s department (nursing) that she was officially permitted to attend the orientation  camp. DW 1 under cross examination, admitted that NYSC service is time bound and mandatory. Mr. Mokelu Dele (DW3) agreed that application should be treated at the right time or promptly DW 1 further said the claimant was given ‘provisional approval’ to do the NYSC service. DW2 removed the name of the claimant completely from the duty roasters subsequent to her application for leave of absence of one year to serve her youth corps which is an indication that she had been freed to go for her NYSC service. The claimant under cross examination was specific that she went to the Chief Medical Director (CMD) who is the head of operations and in charge of the hospital’s day to day activity and he told her to go for her NYSC service. DW1’s admission was only a corroboration of this permission said to be ‘provisional’. DW2 in his statement on oath paragraphs 9 and 10 said the claimant did not show up after the strike which started in October 2017 and ended 17th November 2017 only to appear in the office in NYSC uniform in December 2017. But this contradicts his oral admission under cross examination that claimant applied officially for orientation camp in November 2017. Her application letter to attend National Youth Service Corps orientation Camp is dated 17th November 2017 and application letter for one year leave of absence for NYSC service is dated 11th December 2017. the  preparation of the duty roaster by DW2 for  December 2017 in which he indicated  when the claimant was to resume, in the remark’s column,  on the 11/12/17 is evidence that DW2 was aware and by extension the defendants, that the claimant resumed with the staff  after the strike.
  2. Also, the duty roasters prepared by DW2 subsequently, omitted the name of the claimant could the duty roaster have been prepared without official information? There is no way DW2 could have prepared those duty roasters without being informed by his head of department. He was not the Head at that time. It therefore means that the claimant leaving for NYSC service was not done secretly neither did she suddenly disappear. Thus, the allegation that claimant absconded is grossly misleading. Counsel urged the court not to rely on DW2’s statement on Oath which he has contradicted by his oral evidence. In NUHU AHMED V. LAWAL YAKUBU & ORS (2008) LPELR – 3660 (CA) it was held that “A piece of evidence contradicts another when it firms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Thus, two pieces of evidence contradicts one another when they are by themselves inconsistent…..”
  3. The evidence of DW2 by his statement on oath before the court is contradicted by his oral evidence in court under cross examination. Counsel urged the court to disregard totally DW2’s evidence as regards the facts in contradiction. Also in ALFRED USIBAIFO & ANOR. V CHRISTOPHER USIBAIFO & ANOR (2005) LPELR-3428 (SC)

“ It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are materials, substantial and affect the live issues in the matter.”

  1. The claimant stated that all the leave applications she had made since joining the service of the 1st defendant were never approved in writing before she was allowed to commence the leave. The Additional Statement on Oath of Claimant Paragraph 8 and Response to 1st-3rd Defendants’ Statement of Defence paragraph 5. The administration of the defendants was such that the claimant relied on the  oral permission of the defendants to proceed  on leave each time she applied. A thorough perusal of the defence processes showed this was not denied and this amounts to admission of that fact. It is trite that where a fact is not denied, the court must deem it admitted. On this submission reliance was placed on the case of ALABI V ABU (2017) LPELR-42872 (CA). The application for leave of absence for the purpose of orientation and one-year NYSC service followed the same pattern as on other application for leave as stated in paragraph 3.12. Under cross examination DW1 said that the claimant was granted “provisional Approval” which they did not commit to writing. This corroborates the claimant’s statement in her pleadings that she was allowed to go on application for leave without it being committed to writing. DW 1 also admitted that NYSC service is time bound in which case Equity Demands that at least an immediate written acknowledgment of receipt of the claimant’s application and any action being taken should heave been communicated in writing if not given immediate approval. However, the Maxim. “Equity regards as done what ought to have been done” is applicable here more so she was given provisional approval. We urge my lord to hold that the management ought to have communicated approval in this case and should thus be regarded as conveyed.
  2. The scenario rendered from paragraphs 3.6-3.13 above reveals the essential elements required for the operation of the doctrine of Equitable Estopel or Estopel by Conduct which in summary is that the claimant applied for leave to go for NYSC service, she was permitted to go, though not committed to writing. Relying on this permission she left and came back after 3 weeks. No issue on the 3 week leave. On being posted to her primary place of assignment, she applied for one calendar year leave of absence. Again, she was granted ‘provisional approval’ and she left. The management of the 1st defendant did not just delay in treating   the claimant’s application, but refused to commit the ‘provisional approval’ to writing. The claimant hereby pleads Estopel by Conduct. The claimant verily relied on the management’s permission and expected that they would perform their duty by later committing the approval to writing which they never did. Counsel urged the court to hold that Equitable Estopel or Estopel by conduct operates against the defendants. The following cases are very instructive. They are: PINA V. MAI-ANGWA (2018) LPELR-44498(SC) where the Supreme Court held, regarding the rule of estoppel by conduct thus:

“It is well accepted in our jurisprudence that where a person by words or conduct made to another a clear and unequivocal representation of a fact or facts either with knowledge of its falsehood, with intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man in his full faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that representation whereby his   position was thereby altered to his detriment, estoppel arises against the person who makes the representation and he will not be allowed to aver the contrary of what he presented it to be”.

  1. In UDE vs NWARA ANOR. (1993) LPELR – 3289 (SC) @ 27 A-B it was also held:

“By  operation of the rule of estoppel a man is not slowed to blow hot and cold, to confirm at one time and deny at the other, or as it is said to approbate and  reprobate and  reprobate. He cannot be allowed to mislead another person into believing a state of affairs and then turning around to say to that person’s disadvantage that the state of affairs which he had presented does not exist at all or as represented by him”.

  1. This principle has been embodied in SECTION 169 OF THE EVIDENCE ACT, 2011 which we quote in extensor:

“ When one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally  caused or permitted another person to believe a thing to be true and to act upon such belief, neither he or his representative in interest shall be allowed, in any process dings between himself and such person or such person’s representative in interest, to deny the truth of that thing.’

  1. Counsel urged the court to hold that from the meaning of the word ‘abscond the claimant did not abscond from work as alleged by the defendants. The claimant did not disappear, hide away, hurriedly leave the office, to avoid court process, or arrest, neither did she escape with anyone’s money or property. The claimant went on leave of absence to serve the one-year mandatory service in compliance with the law of the Federal Republic of Nigeria.
  2. Counsel urged the court to hold that the 1st defendant and its administrative officers are to be held liable for the act of dereliction of their duties by not committing to writing, approval of the applications of the claimant  for leave of absence.
  3. It is the contention of counsel that a critical appraisal of the matter shows that the issue of abscondement was introduced by the defendants to enable them paint a bad picture of the claimant; as the saying goes, ‘give a dog a bad name and hand him.
  4. Furthermore, it is apparent that the real grouse is not that the claimant went for NYSC without leave approval, (no issue was made of the three weeks she applied for attend the orientation camp), it is that she did not serve the NYSC at the 1st Defendants. Please refer to their statement of defence paragraph 11, and also Exhibit CMK 1- 4.
  5. According to counsel DW1 admitted under cross examination that NYSC service is compulsory for those not caught up worth age for exemption, still under cross examination DW3 said it is NYSC that does postings. Assuming without conceding that the directive of the head of service in the memo dated 3rd January 2018 (exhibit CLG/CLH) affected the claimant, it is preposterous to force claimant to resign her appointment, protected under the Public Service Rules, with the 1st defendant for being posted to Federal Medical Centre Lokoja by the NYSC who is responsible for posting youth corps members to their primary place of assignment.
  6. The DW3 in charge of administration said claimant’s application for leave was not replied. He admitted under cross examination that there was no communication as to approval, rejection or even a “wait” or “hold on” person a certain action. He however said there was a follow up. My lord, the “followed up” is a letter written to the Head of service requesting to be directed in a case where a staff on part-time or full time study leave was to do NYSC Service. This ‘follow –up’ was   not even communicated to the claimant and it did not amount to any definite directive to the claimant who depended on the unwritten ‘provisional approval’ to go for her NYSC Service. Counsel urged court to hold that the claimant is not liable on issue 1 and that the defendants owed her the duty to communicate approval which they neglected to do. Serving the nation under the NYSC programme is a duty imposed by law on every graduate who has not reached the age for exemption. It is in the light of this that counsel urged the court to hold that the law expected  cooperation from the management of the 1st defendant to facilitate the service of the claimant and not to constitute an obstacle to Federal Government policies and laws regarding youths and progress of the nation.
  7. It is the contention of counsel on this issue that the claimant’s pleadings, oral evidences and exhibits, the management of the 1st defendant, in particular, the Director of Administration should be held liable under Misconduct Rule 030301 (d), (g), and (h). The management of the 1st defendant, in particular, the Director of Administration should be held liable under is conduct Rule 030301 (d) Rule 030301 (d) is deliberated delay in treating official document. The management of the 1st defendant, in particular, the Director of Administration was dishonest (Rule 030301(g)) in alleging that the claimant absconded from duty knowing very well that she did not and in view of the fact that she was given provisional  approval of leave to do NYSC service without committing it to writing. The application of the claimant for leave of absence is official documents that were deliberately not given the treatment they deserved. The management of the 1st defendant, in particular, the director of administration was negligent (Rule 030301(h) in not communicating approval/of the claimant’s application. Finally, on this issue, it is our submission that the claimant did not abscond from duty and we urge my lord to so hold.
  8. ISSUE TWO: whether or not the claimant refused to comply with government directive.’’ In arguing this issue counsel contended that the Government directive referred to is the 1st defendant’s internal memo dated 03/01/2018 addressed to all staff (Exhibit CLH) and specially  addressed to the claimant (Exhibit CLG). The content of the directive is as follows:-

‘’Following the Directive from The Head of Service….. all staff on part-time or full-time study leave that they should be prepared to serve their NYSC in the hospital or resign their appointment forthwith……’

  1. Without dwelling on the oppressive nature of the directive it is sufficient to state that it is anti-Federal Government law on youth service. A state Government directive cannot override a federal government law and policies much less a directive from an institution under the state government unless such directive is based on state law on the concurrent list. Then the issue here for determination in respect of Exhibit CLH which has been proved to be a general memo to all staff but specifically copied to the claimant which with hind sight was meant to rope her in with Exhibit CLG is, whether it affected the claimant or not. Under cross- examination the DW1 admitted that the claimant is not affected by the memo as the claimant was neither on full-time nor on part-time study leave. On this subission reference was made to paragraph 4 of the statement of defence, where the defendants stated that the claimant’s letter notifying them of her admission required no reply as she was not asking  for a leave or permission to study which DW1 corroborated as pointed out above and admitted under cross-examination. DW1 said under cross-examination that NYSC service is compulsory and DW3 also, under cross-examination, said he is aware that it is NYSC that posts those on youth service to their primary place of assignment. The claimant was posted by the NYSC management to Federal Medical   Centre, Lokoja. The query the 1st defendant issued to the claimant was predicated on the Head of Service Directive referred to in Exhibit CLH. The query issued was based on the assumption or presumption that the claimant was definitely affected by the Head of Service directive (Exhibit CLH). It is contended that the Internal Memo has nothing to do with the claimant for the following reasons:
  2. According to counsel the Internal memo post-dated her commencement of the NYSC service. Effectively, she started the service since November 2017 when she attended the orientation camp on 21st November 2017, got posted in December to Federal Medical Centre after a 3-week period at the orientation camp. The directive was not stated to affect those who have already commenced their service such as the claimant i.e the directive is not stated to have retrospective affect. The words ‘should be prepared’ conclusively indicated that the Head Service directive is prospective.
  3. Counsel contended the claimant was neither on part-time study leave nor on full-time study leave. It was like a mere pastime. In her letter to the 1st defendant captioned NOTIFICATION OF ADMISSION dated 01/06/2015 (Exhibit CLW) it is stated that her work would not be affected. This is evident in her statement on oath paragraph 8. The 1st -3rd defendants’ statement of defence paragraph 4 also corroborated this when it stated inter alia. ‘…… the claimant wrote a letter to the management of the 1st defendant notifying them of her admission into International University of Bamenda-Cameron which requires no response as she was not asking for a leave or permission to study’.
  4. It was also argued that the claimant was not responsible for posting herself and that the KSSH could have requested directly from the NYSC to post her back to KSSH to do her youth service if it so desire. The DW1 also under cross examination confirmed that the claimant was not affected by the Internal memo dated 03/01/2018 as she was neither on part-time nor full-time study leave throughout her study at the university. In the said exhibit, there was no specific instruction to the claimant as the message is to “all affected staff on part-time or full-time study leave.” In any case, the claimant had already completed her study at the material time and was already serving. Moreover, there was no requirement to respond to the memo
  5. Counsel call on the court to peruse the content of exhibit CLK 1-4 and exhibit CLJ 1-3 which are the query to the claimant and her response to same respectively which succinctly brought out all the points in this argument for the defence against the allegations in the query. The claimant made it abundantly clear that not only will her study not affect her work, but she never asked for leave to study or to sit for examination during the course of study.
  6. In concluding his argument counsel contended that the claimant did not refuse to comply with the directive of the Head of Service and in that case, there was no basis for the query that led to the disciplinary action meted to the claimant. Counsel urged the court to so hold more so the second leg of the allegation of refusal to obey the Head of Service  directive was dropped in the letter of dismissal making it a non issue.
  7. ISSUE THREE: whether or not the disciplinary procedure adopted against the claimant was right and in accordance with the Federal Public Service Rules 2008 in use in Kogi State.’’ In arguing this issue counsel contended that the employment of officers in the Public/Civil Service is with statutory flavour. It has been held in a plethora of cases that it related to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institution and parastatals where the civil service or public service rules apply or are made relevant or incorporated. An employee whose employment is thus protected with statutory flavour has a right to approach the court for redress where his rights are being infringed.
  8. In the case of UNIVERSITY OF ILORIN V. ABE (2003) FWLR (PT. 164) 267 AT 278, the Court held:

“It is now firmly established by a long line of decided case by apex Court that when an officer or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a  special status over  and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.”

  1. Also the case of NEW NIGERIA NEWSPAPER LTD. V. ATOYEBI (2013)LPELR-21489 (CA)Where it was said of employment with statutory  flavour.

“In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void…. Such is a applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government….” See OSUMAH V. EDO BROADCASTING SERVICE (2006)ALL FWLR (PT. 253) 773 AT 787.

  1. The Public Civil Service in Kogi State is guided in the meantime by the Federal Public Service Rule 2008 as the state is yet to produce its own. The defendants, in dealing with the claimant in this case made reference to the Federal Public Service Rule and we shall do the same. Public Service rules spelt out clearly and specifically the procedure for disciplining an erring  civil servant. Rule no 030302 requires that an erring staff has to be.

“….informed in writing by his superior giving details of unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether.

  1. The officer has exculpated himself/herself in which case. He /she shall be so informed in writing and no further action shall be necessary or the officer has not exculpated himself/herself but it is considered that he/she should not be punished in which case the appropriate formal letter of advice shall be issued to him/her and he/she shall be required to acknowledge its receipt in writing, or the officer has not exculpated himself/herself and deserves some punishment, in which case Rule 030304 shall apply.”
  2. Rule 030304 prescribes the action of the Head of Extra-Ministerial Office    which in this case could be equated to the Chief Medical Director of the 1st defendant. The first query was  to be issued by the claimant’s superior officer (Rule; 030302) who in this case is the head of department who was expected to, after properly querying his/her subordinate, and   if not satisfied with the answer or response, report to the next superior officer (Rule 030302(c), who appropriately is the Director of Administration. This did not happen. In MRS. AKINYOSOYE YEMISI V. FEDERAL INLAND REVENUE SERVICES (2012) LPELR – 7964 (CA) it was held.

“A careful examination of the relevant Public Service Rule reproduced above shows that the procedure for any disciplinary action against an officer, which is likely to lead to his dismissal, is in two stages. The first stage is the issuance of the query by the offending officer’s superior and a report by that superior officer to another officer superior to him.  The second stage is that where the concerned officers’ reply to the query is not satisfactory and it is considered that the conduct complained of is such that could lead to dismissal, the procedure set out in Rule 04306 must be followed. Because of the serious nature of the penalty for the alleged misconduct, the Rules set out a detailed procedure that must be followed. It fully accords with the principle of fair hearing. Once the Junior Staff Disciplinary Committee came to the conclusion that the appellant’s conduct warranted dismissal or termination, Rule 04306(vi) became applicable.” Per KEKERE-EKUN J.C.A. (P. 25, paras A-E).

  1. Counsel submitted that Rule 030307 of Federal Public Service Rules 2008 is the equivalent of rule 04306 in the case cited.
  2. It is the submission of counsel that the defendants suddenly woke up, in March 2018, to the fact that the claimant who was due for promotion since April 2017 came to verify her documents, like everyone else qualified for the exercise, prior to promotion interview which was final step. It was during that period that the plan to deny her the promotion was contrived by disallowing her from taking part in the interview and to justify their action a query was now issued to her not by her head of department, but by the Director of administration who has just joined the organization the previous month i.e March 2018 from outside.
  3. DW3, under cross-examination said there was no formal complaint to him of the claimant’s misconducts.  He nonetheless issued her a query when he barely knew her. In proof of this assertion reference was made to exhibit CLK. Even though under cross examination DW3 said his office was not for gossip; his action in querying the defendant could only have been born out of gossip as he admitted under cross examination that there was no formal complaint from the claimant’ Head of Department against the claimant.
  4. Counsel contended that Rule 030303 was not followed, which should have led to an interdiction if it was so decided.
  5.             Counsel contended that the provisions of Rule 030307 were flagrantly violated, more particularly sub-rules (i), (v), (vi), and (xiii).
  6. It is contended that the violation of the procedure laid down was confirmed by the evidence elicited under cross examination, where DW1 said the number of queries to an erring staff before dismissal should be at last three. It is conceded that under certain circumstance, it could even be less. Only a single query was issued to the claimant and the single query to the claimant was not done by her head of department who was the immediate superior officer but by DW3, the Director of Administration.  However, the appropriate authority to dismiss a staff is the civil service commission. This is clear from the opening sentence in rule 030307.
  7. Counsel further contended that those who constituted themselves into the dismissal committee have no power to do so. The board could at best make recommendation of their findings to the civil service commission for their action. DW3 signed the dismissal letter on behalf of the Board Chairman Kogi State Specialist Hospital, Lokoja. What the board did was ultra vires. The Board usurped the powers of the Civil Service Commission.
  8. Counsel also argued that in addition to the above from the pleadings, it is obvious that the management of the 1st defendant violated several parts of the rule 030307 for instance the disciplinary committee of the 1st defendant violated sub-rule (i) by first being constituted to sit on the claimant’s case with a query that was not the result of an official complaint from the head of department of the claimant but by the mendacities of some colleague and the Director of Administration. Although under cross examination DW3 said his office was not for gossip, his action in querying the defendant could only have been born out of gossip as he admitted under cross-examination that there was no formal complaint from the claimant’s head of department against the claimant. The DW3 (Director of Administration) who under cross examination also said his means of monitoring the staff was by feelers which is a   word whose meaning in the context of office setting is akin to gossip. Counsel referred to the CHAMBERS DICTIONARY 10TH EDITION BY ALLIED PUBLICHED PRIVATELIMITED, 2008 which appropriately defines feelers as:

“…Indirect stratagem, to sound out the opinions of others”.

  1. To further confirm that the disciplinary action taken against the claimant was borne out of gossip, the issue of wrongdoing never came up until after the verification of the documents of the claimant was done on 16th March 2018 by the committee set up, for the purpose of promoting those due in 2017 and 2018 among whom is the Claimant who was due for promotion since April 2017. It was after this verification that the allegations of absconded from duty and refusal to comply with Head of Service directive were made out in a query dated 20th April 2018 instead of promotion for the Claimant, which she was due for since April 2017.
  2. The Director of Administration was barely a month in the organization having joined the first defendant in Mach 2018 and hardly knew the Claimant. Without formal complaint from the claimant’s head of department, who should have issued the query, DW3 (Director of Administration) signed the query issued to the Claimant and immediately the answer to the query was received, a disciplinary committee was set up. There was no interdiction whether verbal or written. The Claimant who was said to have ‘absconded’ never failed to present herself whenever required even in facing disciplinary action.
  3. Another breach of the rules is in the constitution of the members of the disciplinary committee. Rule rule no 030307 (v) expressly excluded the head of department of the offender from membership of the disciplinary committee. The disciplinary committee that sat on the case of the claimant had the Head of Department, Mrs. Elumokwo Sarah, of the claimant as a member contrary to the rule above mentioned. The DW1 in mentioning the members of the committee under cross-examination was emphatic that the head of Department of the claimant was among the disciplinary committee. See also the Claimant’s statement on oath paragraph 29, no (ii) Mrs. Elumokwo Sarah (HOD Nursing).
  4. Sub-rule (vi) was violated because the claimant was never informed of the fact that the matter of dismissal was to be tabled before any of the committees. Please see exhibits CLE and CLD. The claimant was not informed of what disciplinary action she was to expect in the letter inviting her to face the disciplinary committee and even when the next committee comprising of the members from within and external for the final decision on the claimant was to sit and the claimant was written to appear before it, it was still not informed her what disciplinary action she was to expect.
  5. Sub-rule (xiii) was violated because the disciplinary action was not commenced and ended within sixty days. This matter was not a criminal matter which could exceed sixty days it actually took ninety-eight days before the claimant’s dismissal was written instead of sixty. The query issued to the claimant is dated 20th April 2017 and dismissal letter is dated 6th August 2017.
  6. In concluding his submission on this issue counsel urged the court to hold that the purported dismissal of the claimant, assuming without conceding that it was warranted, cannot stand   in view of the many breaches of the rules for disciplinary procedure which run contrary to the Public Service Rules that require strict compliance as  noted in AKINYOSOYE YEMISI V. FEDERAL INLAND REVENUE (supra) thus:

“Where the statute has laid down the procedure to be adopted, which the respondent failed to comply with, it cannot be heard to say that the was substantial compliance. The Rule must be complied with fully.”

  1. In BAMGBOYE V. UNIVERSITY OF ILORIN (1999) LPELR-737(SC) RATIO 12, it was held that the only way to terminate such a contract of service is to adhere strictly to the procedure laid down in the statute.
  2. It is contended that the dismissal  of the claimant is unlawful, null and void and of no effect and we urge my lord to so hold on the strength of NEW NIGERIA NEWSPAPER LTD V. ATOYEBI (SUPRA).
  3. ISSUE FOUR: If our submissions found favour with my lord, then we pray reliefs 1, 2 and 3 which are declaratory reliefs, be granted. Prayer for relief 4, 5 and 6 are orders to be made to restore the claimant back to her work and other entitlements. As already argued, the claimant’s employment is protected by the Federal Public Service Rules and therefore is above the normal master/servant relationship and is thus said to be employment with statutory flavour. That being so, the claimant is entitled to a reinstatement to her position as if the dismissal never happened. In support of this contention counsel placed reliance on the case of MR. I. O. ADEFEMIWA V. OSUN STATE COLLEGE OF EDUCATION, ILESA CITATION (2007) LPELR -8760 (CA) where AUGIE, J.C.A (as he then was) (Pp. 9-10, paras. F-D) stated thus: “In other words, reinstatement is not ordinarily the remedy for breach of contract of service, but exception to this include, where the contract of employment has statutory flavour.”
  4. And in UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD & ANOR. V. HOPE CHINYELU NNOLI (1994) LPELR-3420 (SC) Ogwuegbu, JSC said as follows:-

“The Judgment of the leaned trial Judge confers on the respondent a right to be reinstated since her retirement was declared invalid, null and void. In law, she was never legally terminated or retried from her employment. The Appellant have a duty to see that she is duly reinstated.

  1. The general principle is that where a contract of service is protected by statute, and the removal of a person is predicated upon non-compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void-see OLANIYNA V. UNILAG (1985) NWLR (PT.9) 599.
  2. Relying on the above authorities counsel urged the court to hold that the decision of the 1st defendant to dismiss the claimant was faulty ab initio and all actions, from denial of the right to promotion, issuance of query and discipline were acts done ultra vires, null, void and of no effect whatsoever and thus entitling the claimant to the prayer 4, 5 and 6. The claimant has a right to be placed de facto in her original position i.e a right to be reinstated since her dismissal was done in breach of the rules. In law, she was never legally dismissed.
  3. In respect of Relief no 7, in realization of the fact that general damages does not arise from contract but is in the realm of tort. Counsel urged to exercise discretion in this case noting that in C.B.N v. OKOJIE (2004) 10 NWLR (PT, 882) 488 RATIO PP519-520 PARAS H-B(C.A-LAGOS) it was held that damages are given to vindicate the plaintiff’s right even though he has not suffered any pecuniary damages and that the award of exemplary damages in favour of the respondent was proper having regard to the oppressive arbitrary and unconstitutional conduct of and acts of the appellants who are public servants and the societal and  professional standing of the respondent.
  4. Based on the above authority counsel contended that hat the claimant’s esteem has been lowered in the eyes of right-thinking members of the public, the claimant has gone through trauma, taking time and trouble to answer query, facing the disciplinary committee and lastly receiving a dismissal letter for no fault of hers but due to the dishonest, negligent, oppressive, arbitrary and unconstitutional conduct of and acts of the defendants when she should have concentrated on her NYSC service at the primary place of assignment. being a professional nurse, her image has been dented in the eyes of the public whom she serves, we urge my lord to hold that the claimant is entitled to an award of damages and ward her appropriately.

DEFENDANTS REPLY ON POINTS OF LAW

  1. counsel started his submission by contending that it is trite to state from the onset that a brilliant address of a counsel is no substitute for evidence, counsel’s submissions no matter how brilliant and  alluring, cannot take the place of legal proof /evidence. GOVT  OFAKWA IBOM V. AKPAN (2017) ALL FWLR (PART 874) P. 1916 AT 1940 PARAS. E. counsel urged the court to look into his records for the correct evidence as adduced at trial and not solely reply on the facts as contained in counsel’s final addresses.
  2. In response to paragraph3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 of the final address of the Claimant, it is contended that the Claimant had embarked on an academic exercise which has no place in our judicial precedence. See DANIEL V. INEC (2015) 9 NWLR (PART 1463) 113 @ P. 144, PARA D, where it was stated tha Court should not engage in academic issues/ exercise. They should spend judicial time resolving live issues. A court is never the proper forum for academic exercise…….
  3. Even though, the submission in the paragraphs mentioned above are academic exercise, it is submitted that the  claimant hurriedly left the office because she wrote for leave of absence on the  11/12/2017 and proceeded on 12/12/2017 knowing fully well that to obtain leave of absence, there are procedures to be followed.
  4. In response to paragraph 3.7, counsel reiterated the decision of the Supreme Court that an admission, clearly and unequivocally made is the best evidence against the person making it. DANIEL V. INEC (Supra) @ P. 158,  PARA H. The claimant clearly and unequivocally admitted under cross examination while under oath that “In my experience, I admit that the official way of things is always communicated in writing. There is nothing in writing to show that I can embark on leave of absence”. This admission was not made under duress or intoxication or insanity but was made voluntarily, under oath while the claimant was in her right frame of mind.
  5. The claimant in her final address at paragraph 3.8 and 3.11 made heavy weather on the omission of her name from the duty roaster to mean approval, we refer your Lordship to Defendant’ final address at paragraphs 4.12, 4 .13,  4.14, 4.15 and 4.16 on this issue. Also, this issue had been answered by the DW2 in his evidence on oath as it relates to when and why he adjusted the duty roaster. Counsel urged the court to have recourse to the evidence of the DW2.
  6. It is the contention of counsel that the assumption that the defendants knew the claimant was on NYSC is speculative which has no place in our legal jurisprudence. To buttress this point counsel cited the case of DANIEL V. INEC (Supra)@ P. 158,  PARA A-B
  7.       “Courts should not act on speculations, and the same goes to parties who are to state clearly the nature of their claims and positions. An ambiguous claim will only put the claimant at disadvantage.”
  8. In response to paragraph 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 of the claimant’s final address, we submit that there are no minute contradiction as all the defendant’s witnesses were consistent that there was no approval for the claimant to embark on NYSC but that she can only carry it out with the 1st Defendant. The picking of the word “provisional approval” from the evidence of DW1 shows the mischief the claimant wants to perpetuate. What is more, the law is trite that court and parties cannot be allowed to choose and pick evidence they want. All the cases cited by the claimant under the aforementioned paragraphs are inapplicable and should be disregarded.
  9. It is submitted that there are no contradictions whatsoever in  the evidence of the Defendants. Counsel urged the court to have recourse to the evidence of the defendants’’ witnesses to ascertain if there are any contradictions. The claimant is only attempting to smuggle in alleged contradiction when there are none.
  10. In response to paragraph 3.15, 3.16, 3.17 and 3.19 of the claimant’s final address, it is submitted that the issue of estoppel must have been pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected. See the case of AJIDE V. KELANI (1985) LPELR-302 (SC) Pp 19-20, paras G-A.  The claimant did not plead evidence in her pleadings, therefore any evidence to establish same goes to no issue and should be rejected. Counsel urged the court to so hold.
  11. In response to paragraph to 3.22 and 3.23 of the claimant’s final address, we submit that documents speak for themselves as oral evidence cannot be used to contradict  a document. Evidence of CLJ 1-3. CLK 1-3 speaks for itself and the court should give effect to same. The court of Appeal in case of UDEORAH V. NWAKONOBI (2003) 4 NWLR (PT.811) 643 @ PP674-675 Paras. H-B had this to say:

“Where a party relies mainly on oral evidence while the other relies mainly on documentary evidence, the trail court should give more weight to the documentary evidence rather than oral testimony. This is because oral evidence may tell a lie but documentary evidence which is shown to be genuine does not tell a lie.”

  1. In response to issue 2 of the claimant’s final address, we submit that Exhibit CLH was specifically addressed to the claimant while the content of Exhibit DW3B shows that the   letter was predicated on Exhibit CLL. Therefore the claimant’s argument that the directive had nothing to do with her seems watery and unjustifiable. The question to be asked is that if the claimant did not do part-time or full time study, what sort of study did she undertake?
  2. In response to issue 3 of the claimant’s final address, it is submirted that that issue 2 of the Defendants’ address is instructive on this matter. The defendants followed the procedure adequately. The essence of the rules on disciplinary procedure is to ensure that the principle of fair hearing is observed. There is no gainsaying that the claimant was giving fair hearing before the insurance of Exhibit CLC. Counsel refers to the case YEMISI V. FIRS (2012) LPELR-7964 (CA) P.27, PARAS F-G. What is more, Exhibit CLI 1-3 and CLK 1-4 disclose the wrong committee by the claimant and the rule of the Public Service she contravened. The claimant therefore cannot cry foul of fair hearing as she had knowledge of the wrong she committed as well as the punishment to be followed.
  3. In response to issue 4 of the claimant’s final address, it is contended that issue 3 of the Defendants’  address is instructive on this matter and same is adopted.
  4. On the whole, counsel urged the vcourt to dismiss the claimant’s claim and hold that the claimant had been validly dismissed.

COURT’S DECISION

  1. I have carefully perused the processes filed in this suit as well as the written and oral submission of counsel for both sides.
  2. Going by the reliefs being sought the claimant is contesting the validity of her dismissal from the services of the Kogi State Specialist Hospital. The hurdle the claimant is required to pass is to show that she is an employee of the defendants and also establish condition of service and how they were breached by the defendants.
  3. Vide exhibit Exhibit CLA – Appointment letter with Ref KSSH/PER/Vol/IIT dated 25/3/2014 and Exhibit CLB – Letter of Confirmation addressed to the claimant dated 30/03/2016, the claimant has established that she was an employee of the defendants. From the evidence given by the parties, the parties are at ad idem that Federal Public Service Rules 2008 is the rules governing the services of Kogi State civil servants under the employment of the Civil Service Commission of Kogi State and the said rules governed the terms of employment of the claimant. Both the claimant and the defendants are united in the applicability of the Public Srvice Rules of the Federal Government to the employment of the claimant.
  4. The Kogi State Specialist Hospital is an agency of Kogi State Governent sevices under the 1st defensant is therefore service with statutory flavor this has raised the employment status of the claimant above the ordinary contract of service of master and servant. Employees of the 1st defendant are employees whose contract of service has statutory flavor, since the employment is governed by the Public Service Rules. See OLANITAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599, FCSC V LAOYE (1989) 2 NWLR (Pt.106) 652, SHITA-BAY V FCSC (1981) 1 SC (REPRINT) 26, (1981) LPELE-3056(SC), NNANDI V NATIONAL EAR CARE CENTRE & ANOR. (2016) LPELR
  5. In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26.
  6. In the case of University of Ilorin v. Abe (2003) FWLR (Pt. 164) 267 at 278, the Court held:

“It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.”

  1. The above was followed in the case of New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489 (CA) where the court said this of employment with statutory flavour:

“In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”

See also Osumah v. Edo Broadcasting Service (2005) All FWLR (Pt. 253) 773 at 787, Oloruntoba Oju v. Abdulraheem (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.

  1. The claimant’s contract of service being one governed by statutory flavor has to be determined by strict compliance with the laid down procedure as provided for in the Public Service Rules 2008.
  2. The Claimant insisted that the Defendant did not follow due process in determining the the Claimant’s contract of service with the Defendants. The disciplinary proceeding was not based on any complaint. Even if there is a competent complaint the query was not issued by her immediate head of Departnent. The letter of invitation did not give her information as to the allegation against her and the punishment to be meted on her. In the final written address counsel for the Claimant contended that the Claimant did not absent her self from duty as she was doing her compulsory one year National Youth Service. And even if she absented herself the Defendants are estopped from denying granting her leave of absence as she was given verbal approval.
  3. The Defendabts strenuously argued per contra. They insisted that the dsmissal of the Claimant was done in compliance with Public Service Rules 2008, applicable to Kogi. It was argued that the Claimant was queried for abscondment and after being dissatisfied with her answer to the query, a disciplinary committee was set up to investigate the misconduct. After the investigation, the Claimant appeared before the Appointment, promotion and Disciplinary committee. At the end the APDC recommended dismissal of the Claimant from service. Vide letter dated 6/8/17, the Claimant was dismissed from service.
  4. After perusal of the processes filed before the court as well as the oral and written submissions of counsel for both sides, what this Court is to determine is whether the dismissal of the Claimant from service followed due process, that is to say whether the Defendants in dismissing the Claimant from service has followed the laid down rules and regulation in the Public Service. The Court is not concerned with whether the Claimant has absented herself from duty or not. The issue of finding the Claimant guilty of absentism from work is that of the 1st Defendant and not this Court. The present action s not an appeal from the decision of the 1st Defendant. Rather it is on the procedure followed in sanctioning the Claimant.
  5. There is no where in the pleading where the Clamant raised issue of estoppel. It was raised in the address of counsel. Address of Counsel is meant to deal with issues raised by the pleadings of the parties. See DARAMOLA & ORS. V AG OF ONDO STATE & ORS. (2000) 7 NWLR (PT.665) 440, (2000) LPELR-9135(CA). The issue of estoppel having not been raised cannot succedd it is incompetent and is hereby discountenanced.
  6. The 1st Defendant is an agency of the Kogi State Government whose employees enjoy contract of service with statutory flavor governed by the Public Servce Rules 2008. The relevant provisions of Public Service Rules 2008, will now be considered to see whether the dismissal of the Claimant from the services of the 1st Defant was done in line with the provisions of the Public Service Rules.
  7. The Claimant has herped on the Civil Service Commission as the only organ that is competent to exercise disciplinary control over the Claimant. Let me say without any ecovocation that the Civil Service Commission is the appropriate organ of government charged with disciplinary proceeding against Civil Servants employed by the Civil Service Commission, who were employed by the Commission in the exercise of the Constitutional Powers conferred on the Commission. The Claimant having not been employed under the Civil Service Commission cannot assert that  the Civil Service Commission of Kogi State is the only agency clothed with jurisdiction to try the Claimant for misconduct. This position is very clear from the provisions of section 5 of Chapter16 of the Public Service rules 2008. Rule 160501; provide that;

‘’the power to exercise disciplinary control over officers in parastatals is vested in the supervisory boards/councils in accordance with their respective conditions of service.

  1. It is clear as day light that the disciplinary control over officers in other government agencies other than those in the core cvil service is vested in the supervisory organs of those agencies. In the case at hand it is the board of the 1st Defendant that is vested with power of discipline of the employees of the 1st Defendant. The Claimant in this suIt being an employee of the 1st Defendant is under the control of the board of the 1st Defendant on issues of discipline like the case at hand.
  2. The provision of rule 160502; provides;

‘’The provision of section 2 to 6 of chapter 3 of the public service rules shall guide all parastatals in addressing disciplinary matters provided  that where reference to the Federal Civil Service Commission , Head of Civil Service of the Federation  or the permanent secretary, the board/council shall perform such function.’’

  1. This rule has settled the question of who has the power of displine of members of staff of agencies of government who were not employed in the core civil servce by the Civil Service Commission.
  2. Rule 030302; provides that a superior officer surbordinate to an officer if dissatisfied with the behavior of an officer is to inform the officer in writing giving details of unsatisfactory behavior and call upon him to submit within specific time such written representation as he may wish to make to exculpate himself from disciplinary action. However, after considering the written representations as the officer may make within the specified time the superior officer, the officer did not exculpatehimself and deserves some punishment provision of rule 030304 shall apply.
  3. The provision of rule 030307 provides the procedure to be followed in taking disciplinary action against an erring officer whose employment is regulated by the Public Service Rules 2008. The Claimant being an officer to whom Public Service Rules is applicable will have his appointment determined in line with this rule. The provisions of Rule 030307 of the Public Service Rules, 2008 provides that:-
  4. “Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule;

(i)                The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;

(ii)              The query, or preliminary letter, shall be in the format shown in Appendix II;

(iii)            If the officer submits his/her representations and the Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the tine fixed, the Commission may take such action against the officer as it deems appropriate:

(iv)            If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

(v)              Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;

(vi)            The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;

(vii)          Were witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;

(viii)        If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Civil Service Commission think it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;

(ix)            The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses.

(x)              If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

(xi)            If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;

(xii)          If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further direct accordingly; and

(xiii)        All disciplinary must commence and be completed within a period of 6o days except where it involves criminal cases.”

  1. The procedure as stated by the above mentioned provision of the Public Service Rules must be strictly followed in any disciplinary proceeding where an officer is to be dismissed from service or will have hs appointment terminated. The appointment of a staff may be determined by the Board of the 1st Defendant if after considering the reply to the query it came to decision that the officer facing the disciplinary action has expulpated himself from blame or allegation of misconduct levelled against the offcer. That ends the matter.
  2. However, where the Board of the 1st Defendant found it necessary a Board of inquiry will be set up comprising of Three men one of whom shall be appointed as the Chairman and the Head of Deparment of the officer facing disciplinary action shall not be part of the inquiry. Upon consideration of the report of the Boar of inquiry, the Board of the 1st Defendant if found the officer guilty dismissed the officer immediately. See R. V. Bishop of Oxford (1879) 4 Q. B.D 245 and Ogualaji v Attorney – General Rivers State (1997) 6 NWLR (Pt.508) 209, 233.
  3. In the case at hand, the Clamant was quiried after submitting her response to the quiry, a Senior Staff Disciplinary Committee was set up to investigate and report to the Board of the 1st Defendant. The claimant after appearing before the Senior Staff Disciplinary Committee was invited to appear before the Appointment, Promotion and Disciplinary Committee of the 1st Defendant, the composition of which comprised of the Chairman of the Board the Chief Medical Director and other members. After appearing befoe the APDC, the Claimant was vide exhibit CL. Dated 6/8/17 dismissed from service.
  4. The question to be answered here is whether the procedure adopted by the 1st Defendant has been in compliance with the rules stated above. It is apt at this juncture to reproduce the relevant exhibit germane to determination of this suit. Exhibit CLK1-4, which is query issued to claimant dated 20/4/2018, state as follows:-

 

SALIHU RITA OBIANUJU

Nursing Service,

Kogi State Specialist Hospital,

Lokoja.

A CASE OF ABSCONNNG FROM DUTY AND REFUSAL TO COMPLY WITH GOVERNMENT DIRECTIVE.

You will recal that you applied for leave of Absence for National youth Service Corps via your letter dated 11th December, 2017 (Annexuure A).

This is premised upon the completion of your Bachelor of Nursing Degree obtained from the International University Bameda Cameroun.

The Management of Kogi State Specialist Hospital in her letter KSSH/CCR.HOS/vol.I/16 dated 15th December, 2018 captioned request for clarification on Mrs. Salihu Rita Obianuju’s request to attend National Youth Service Corps after attending the International University Bermeda Cameroun on part-time basis. (Annexure B).

A letter from the Head of service dated 15th December, 2017 with reference KG/EST/OFF/126/147 directed the affected staff on part-time or full time study leave should be prepared or serve their National Youth Service Corp in the Hospital or resign their appointment. (Annexure C).

Findings

It was observed that you deliberately refused to respond to the letter served you (Re-staff on part-time of full time study level dated 3rd January, 2018 from Kogi State Specialist Hospital, Lokoja.

A case of Absconning from duty and refusal to comply to Government directive has being (sic) established against you.

You are consequently by this letter given 24 hours to respond to the abpve allegations made against you, failure upon which further necessary disciplinary action wull be taken against you.

 

SGN

  1. MOKELU DELE

Director Admin.

For: Chief Medical Director

 

  1. The claimant’s response to the above letter is contained in exhibit CLJ1-3.
  2. Upon receipt of exhibit CLJ1-3, another invitation was extended to the Claimant to appear before the Senior Staff Disciplinary Committee. The invitation as contained in exhibit CLE read as follows:-

 

17/05/2018

Salihu Rita Obianuju,

Nursing Service,

Kogi State Specialist Hospital,

Lokoja.

Sir.

 

INVITATION TO SENIOR STAFF DISCIPLINARY COMMITTEE (SSDC) SITTING.

 

I have been directed to invite you to the Senior Staff Disciplinary Committee (SSDC) sitting to determine the cases of official misconduct against you and others (PRS 030301).

The meeting is schedule as stated below:

Date: Thursday, 24th May 2018

Time: 10:00am

Venue: Conference Hall Kogi State Specialist Hospital, Lokoja.

Thank You.

 

SGN

  1. MOKELU DELE

Ag. Director Admin.

For: Chief Medical Director.

 

  1. Vide letter dated 28/6/2018, which was tendered and admitted in evidence as exhibit CLD, it read as follows:-

 

Salihu Rita Obianuju

Nursing,

Kogi State Specialist Hospital,

Lokoja.

 

INVITATION TO APPOINTMENT PROMOTION AND DISCIPLINE COMMITTEE (APDC) KSSH BOARD SITTING.

 

I have been directed to invite you to the Appointment, Promotion and Diciplinary Committee (APDC) KSSH Board Sitting as scheduled Below:-

Date: 3rd July, 2018

Time: 10:00am

Venue: Conference Hall

  1. Please adhere strictly to this invitation
  2. Thank You.

 

SGN

  1. MOKELU DELE

Ag. Director Admin.

For: Chief Medical Director.

 

  1. The outcome of exhibit CLD was issuance of exhibit CLC, which is a letter of dismissal of the Claimant from the service of the 1st Defendant.
  2. The claimant instituted this suit praying the court to nullify her dismissal from service as encapsulated in exhibit CLC, on the grounds that the letter of dismissal was issued in total violation of the extant rules and regulations governing her employment.
  3. It is plainly clear from the rules applicable to this case that the power to discipline employee of the 1st defendant is vested in the Board of the 1st Defendant. However, before such power can be exercised the employee whose service is to be dispensed with must be notified of the grounds on which it was proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. Exhibit CLK1-4 is the query issued to the Claimant. Exhibit CLK1-4, is very clear that the claimant is being accused of not responding to the exhibit CLH and exhibit CL3B. The content of these exhbit are very clear and unambiguous they says what they say. There is nothing in the content of exhibits CLH and CL3B that require the Claimant to make any response. In any event the content is talking of future and not past or present. The claimant is of the view that her studies at International University Bermenda Cameroun is not on part-time or full-time. The interpretation given to the study by the claimant is based on false premise. A part-time study essentially, is for those who want study and continue working while studying and usually involves committing an afternoon or an evening each week to attend classes or lectures. See https:www.allaboutcareers.com. This means the claimant having studied in her leisure time, means that her study was part-time.
  4. However, from exhibit CLH and CL3B, the advice from the Head of service of Kogi State was for those who are as at the time of the memo undergoing studies whether full-time or part-time but does not extend to those who have completed their full-time or part-time study. Therefore, I hold that these exhibits do not apply to the Claimant and that there was no where in those documents where the claimant was asked to make response. Therefore, exhibits CLH and CLG cannot form one of the grounds for initiating disciplinary action against the claimant. All that was done by serving the dciuments to the claimant is to put the Claimant on notice of the position of Head of Service of Kogi State on study by members of staff of the Defendants. The Defendants have not even tendered any evidence showing that the clamant was on leave of absence when she undergoes the programme.
  5. On the second ground of the query it was alleging absconning and refusal to comply to Government directive. The Claimant was accused of absconning from duty. I have underlined the word absconning for emphasis and to show that in my hasty research there is no word in English ‘absconning’. As pointed out above exhibit CLH and CL3B were not directed to the Claimant as they are futuristic. The Claimant who has completed study and commenced National Youth Service corps is not affected by the said letters.
  6. It is to be noted that even in the title of the subject matter of the query the word ‘absconning’ was used. Hoever, it appears from other documents tenderred brfore the court that what was intended to be used is the word ‘abscond’ and not absconning. From the facts of this case as disclosed by the pleadings and evidence, the claimant has served in the National Youth Service for about five Months when exhibit CLK1-4 was issued to her. Having regard to exhibit CLL application for leave of absence and the time it took for the Defendant to notify the Claimant of non-approval of her application. The Defendants are estopped from denying that approval has not been given to claimant. In labour matters where there is delay in taking action the employer is deemed to have granted the application by implication. The silence of the defendants to the claimant application and allowing the claimant to have served for about 5 Months before waking up from their slumber is fatal to the case of the defendant. In any event since I hold that the letter of Head of service is not applicable to the case of the Claimant, the Defendant cannot rely on it to serve as a defence to their inaction. The refusal of the Defendfants to act timeously has worked against them.
  7. It is also true from exibit CLK1-4 that there is fundamental omission, i.e the rule and regulation broken and the likely penalty to be metted on the claimant if found guilty of misconduct was not stated in the query letter exhibit CLK1-4. Even exhibit CLD invitation to appear before APDC did not give the Claimant notice of allegations levelled against her the rule and regulation violated and likely penalty for the allegd infraction were all not stated in the latrer. This means the Claimant was kept in the dark as to what to expect or meet at APDC. This is contrary to clear and unambiguous provisions of the Public service Rules.
  8. The Claimant has responded to exhibit CLX1-4 and the Defendants if not satisfied with the response and it became necessary to make further inquiry what the Board of the 1st Defendant should have done is to set up Board of Inquifry in line with rule 030307 (v). In the case at hand what the Defendants set up to try the Claimant was Senior Staff Disciplinary Committee and Appointment, Promotion and Dicipline Commiytee. These committees were not the appropriate committees to try the Claimant. What the Rules contemplate is setting up of Board of inqury. This means the recommendations of Appointment, Promotion and Dsciplinary Committtee’s recommendation for dismissal of the Claimant was not competent as the said Committee was not the appropriate Committtee to be set up in the circumstance of the case.
  9. However, if it is found on appeal that the two committees were appropriate, the dismissal of the Claimant from service will still stands faulty in that in the senior Staff Committee, the Head of Claimant’s Department is not sypposed to have participated in the inquiry. The SSDC havng in its midst unqualified member all the work of the Committee remain null and void and of no effect for lack of jurisdictoion on part of the Committees membership.
  10. From all I have been saying is that the claimant’s case has merit and dserves being granted. In the circumstance, it is the order of the court that:
  11.             The dismissal of the Claimant from the service of the 1st Defendant is hereby declared null and void and of no effect. The Defendants are hereby directed to reinstate the Claimant back to her work with immediate effect.
  12.             The claimant for entitlement to promotion is hereby refused. The reason being that promotion is privilege and not a right. it must be earned on fulfilment of laid down rules and regulation and passing of relevant examinations. The claimant has not adduced evidence to prove this claim.

III.            The monetary claims also failed and are hereby refused. The reason being that the claimant has failed to establish exact entilement since arrears of salaries and entitlement by law special damages that require strict proof after particularisation. In the case at hand no such particularisation. The claim was also vague. See

  1. Judgment entered accordingly.

 

Sanusi Kado,

Judge.

Representation:

Michael Olorumole, Esq; for the claimant

  1. A. Sule, Esq; Solicotor general, Ministry of justice Kogi state, appearing with G. P. Oloniruha, Esq; Principal State Counsel, and A. V. Olorunfemi, Esq; Legal Officer.

 

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