IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA ——————————————————— Suit No: NICN/CA/60/2015 Petitioner: SARAH A. AYUK And Respondent: UNIVERSITY OF CALABAR TEACHING HOSPITAL Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION R. ONYEKWERE ESQ. for the claimant CHIEF OROK IRONBAR for the defendants with IMMACULATA IRONBAR (MRS.) J U D G E M E N T The claimant, by a General Form of Complaint filed on 24th November, 2015 accompanied by the Statement of Facts, Claimant’ Written Statement on Oath, List of Witnesses and List of Documents, approached the Court for the following reliefs: A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. An Order of Court reinstating the claimant and restoring her to her position (i.e.) Grade Level 7 step 4 as she was prior to the issue of letter of termination of her employment. An Order directing the defendant to pay to the claimant her arrears of salary from the date of purported termination to the determination of this suit at the rate of One Hundred and One Thousand, Six Hundred and Sixteen Naira Thirty Three Kobo (#101, 616, 33) per month. An Order directing the defendant to pay the cost of litigation at Five Hundred Thousand naira (#500,000.00) only. An Order of General Damages for the trauma and hardship suffered by the claimant for the wrongful termination of her appointment to the tune of Ten Million (#10,000,000.00) only. The defendants filed their STATEMENT OF DEFENCE on 11th March, 2016. Wherein the defendants denied paragraph 6 of the Statement of Facts, defendant averred that claimant cannot assert that her services to the defendant has been without blemish when sometime in 2013, she was indicted for financial impropriety. And that the Internal Audit Report of July, 2013 and recommendations of the two separate panels all indicted the claimant. To the Defendant responding to paragraph 9 of the Statement of Facts, the claimant cannot require the defendant to produce the copy of a query issued her in 2015, receipted and replied to by here on 6th April, 2015. The Defendant admitted paragraphs 11 & 12 of the Statement of Facts to the extent that the claimant was served a letter of invitation for a chat with a panel of investigation dated 14th July, 2015 but denied the averment that copies of the relevant documents in issue were not shown to her. The claimant in reaction filed her REPLY TO STATEMENT OF DEFENCE on the 30th September, 2016. The Claimant maintained that the termination of her appointment did not follow due process and that she was not indicted for any financial impropriety either in 2013 or any time whatsoever. Maintaining that no single reorganization took place in the defendant’s organization except that they are even employing new hands to show that the termination of the claimant’s appointment was done mala-fide, for reasons best known to the isolated management staff who carried out the termination without Board approval. It is the claimant’s case that her appointment is regulated by an Act of the National Assembly and that in the termination, the procedure laid down by the said Ac was not followed as and therefore her termination was irregular. To the claimant the termination of her appointment apart from being irregular and unlawful has caused her so much trauma and ridicule. At the trial the claimant testified as CW, adopted her written statement on oath of 24th November 2015 which was marked Exhibit C1 and proceeded to tender 6 other exhibits, under cross examination CW testified that she was employed by the defendants on 2nd November 1998 on the conditions contained in Exhibit C2, and she never questioned any one of the conditions, she further testified that she was terminated on 24th August 2015 through Exhibit C3 , she further testified that she is a confirmed staff and that she was aware that she could be terminated with one month’s notice but subject to the condition attached, she further testified that during the course of her employment she received two queries which she replied to in writing, she appeared before two panels and after receiving her letter of termination she wrote for a reversal; Exhibit C5. The defendants called one Ededet Eyoma the Director of Human Resources of the defendant who testified as DW, adopted his written statement on oath of 11th March 2015 which was marked Exhibit D1, and went on to tender twelve other documents Exhibit D2-Exhibit D12. Under cross examination DW testified that the claimant was a Senior Staff as at the time of her employment and that by Exhibt D2 the Offer of employment it is only the board that can terminate her employment, The DW he further testified as the chain of command s regards discipline thus; Onyekwere: And by reason of her contract of employment Exhibit D2 paragraph 6, only the Board can terminate her employment DW yes Onyekwere: This paragraph puts a lie to your statement at D1. DW No Onyekwere: So you maintain that you are empowered to employ and discipline DW I oversee I do not formulate policies. Onyekwere: So you cannot oversee unless you have a directive, DW Yes, from Board Management and Mangement Onyekwere: In matters and discipline of Senior Staff whom do you take directives from DW: From the Management of the hospital Onyekwere: Between the Management and the Board who reports to whom DW; The Management reports to the Board Onyekwere: In matters of discipline who approves discipline of Senior Staff. DW: Management Onyekwere: So the Management can terminate Senior Staff appointment without the approval of the Board DW; Yes Onyekwere: As at 24th August 2015 there was no Board in place in the defendants DW: Yes. DW went on to testify that he obtained his authority to terminate the claimant form Exhibit D4, and through this witness during cross examination three (3) other exhibits were tendered. At the close of trial parties were directed to file their final written addresses in line with the rules of this court. The DEFENDANT’S FINAL WRITTEN ADDRESS was filed on 1st November, 2016 and dated 31st October, 2016. Wherein the defendants raised the following two (2) ISSUES Whether the claimant has presented a case strong enough to entitle her to judgment. Whether claimant’s employment was properly terminated. Learned Counsel to the Defendants Chief Orok Ironbar Esq. submitted that having known the state of the evidence, the procedural law is that – he who alleges proves. SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (2016) 7 NWLR (PT. 1511) 284. And that pleadings do not constitute evidence as decided in the case of WAZIRI & ANOR. V. GEIDAM & ORS. (2016) 2 MJSC (PT. 111) 83 @ 124, PARAS. F-G Coram, Peter-Odili, JSC. Defence Counsel argued that claimant only alleged that her termination did not come from the proper authority, posing the question: “what is the proper authority―. He contended that if it is only the Board that can terminate her employment, where was that proved on record? as he who alleges proves. OJU v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 @ 136, PARAS. F-H; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150. Submitting that being a contract of employment, it is the only contract before the Court that must be complied with i.e. Exhibit C3. IDONIBOYE OBU v. NNPC (2003) 2 NWLR (PT. 805) 589; (2003) 4 MJSC 131. To the defendants whether the reports of investigation were communicated to claimant or not does not stop the defendant from terminating her employment. AJAYI v. TEXACO NIG. LTD. & 2 ORS. (1987) 9-11 SC 1 @ 6.It is defendants counsel’s contention that the fact that claimant responded to the queries means that she was afforded fair hearing. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648, PARA. F Coram Rhodes-Vivour, JSC; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25.,Submitting that by Public Service Rules under Paragraph 030402 and Chapter 3 Sec. 4 Paragraph 030407 (a), “claimant was even lucky not to have been dismissed out rightly―. Learned defence Counsel further submitted that it is not necessary nor a requirement under the extant laws that before an employer summarily dismisses his employee from his service, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty bordering on criminality. S.B. OLANREWAJU v. AFRIBANK PLC (2001) FWLR (PT. 72) 2008. Counsel for the defendant also argued that the claimant as part of the failure of her case, provided no proof or reference to the law allowing her to be reinstated when the law is that an employee cannot be forced upon an unwilling employer. OYEDELE v. IFE U.T.H. (1990) 6 NWLR (PT. 155) 194 C.A.; IWUCHUKWU v. NWOSU (1994) 7 NWLR (PT. 357) 379. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 22nd November, 2016 and dated same day. The claimants in turn also formulated two (2) ISSUES Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. ON ISSUE 1 Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Learned Counsel to the claimant Rueben Onyekwere Esq. submitted that Sec. 10 (3) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, provides a dividing line between the discipline of an erring senior staff who can only be dismissed or terminated on the direction of the Board and his/her junior counterpart who may be disciplined (dismissed or terminated) by the Chief Medical Director (Management) without recourse to the Board. He submitted that Sec. 9 (1) of the Act is the statutory laid down procedure to discipline the claimant and that facts admitted need no further proof. ODUNZE v. NWOSU (2007) 31 NSCQR 378; NASI v. UBA (2005) 23 NSCQR 127 @ 130; ADUSEI v. ADEBAYO (2012) 49.3 NSCQR 1492 @ 1494; JOLASUN v. BAMGBOYE (2010) 44 NSCQR 94. It is Claimant’s counsel’s contention that the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010 is not a piece of evidence in the mold of what the defendant is trying to categorize as requiring tendering in open court, but a statutory provision which the court should take judicial notice of as provided by Sec. 122 (1) of Evidence Act, 2011. AG. FED. V. ABIA STATE (2002) FWLR (PT. 102) 1, per Uwais, CJN. Submitting that all that is required is to plead that the party is relying on a statute as the claimant has done in paragraphs 6, 7 and 8 of the Statement of Facts. BENDEL NEWSPAPERS CORPORATION v. OKAFOR (1993) 4 NWLR (PT. 289) 617; MAKANJUOLA v. BALOGUN (1989) 3 NWLR (PT. 108) 192; A.G BENDEL STATE v. A.G. FEDERATION (2001) FWLR (PT. 65) 448. ON ISSUE 2 Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. Learned ClaimantCounsel submitted that termination of any employment enjoying statutory flavor must follow the process as prescribed by statute. LAGOS UNIVERSITY TEACHING (HOSPITAL MANAGEMENT BOARD) v. MRS. OLANIKE BETTY ONI (2007) 4 FWLR 6987 @ 7028. He urged the Court to hold that this clause reinforces and is a strong reminded to the Board and Management that there are laid down procedure as provided by the Act in discipline of employees. CENTRAL BANK OF NIGERIA v. IGWILO (2007) 5 KLR (PT. 235-236) 2275 @ 2277. Arguing further that where an employee’s service is protected by statute (as in the present case) and his employment is wrongfully terminated, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. SHITTA BAY v. PUBLIC SERVICE COMMISSION (1981) 1 S.C. 40; UDO v. CROSS RIVER NEWSPAPAER CORPORATION (2001) 14 NWLR (PT. 732) 116; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; Galinje, JCA in REGISTERED TRUSTEES OF C & S v. IJAODOLA (2007) FWLR (PT. 389) 5921 @ 5925. He submitted that the defendant has not discharged the burden placed on her by reason of the provision of Sec. 133 (2) of the Evidence Act, 2011 and that the defendant has also failed to show that even the alternative route provided by the so called presidential directive was communicated to the management through circular or memo, or that any directives was received from the mother Ministry by positive evidence as required in the presidential directive. ALAO v. KURE (2000) FWLR (PT. 6) 889; OYOVBIARE v. OMAMURHONU (2001) FWLR (PT. 68) 1129. It is counsel’s submission that where a public servant us accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. NIGERIAN TELECOMMUNICATION LIMITED v. AWALA (2001) 45 WRN 146; LAOYE v. CIVIL SERVICE COMMISSION (1989) 2 NWLR (PT. 106) 652; GEIDAM v. NATIONAL ELECTRIC POWER AUTHORITY (2001) 2 NWLR (PT. 696) 45. He urged the Court to hold that any indictment flowing or contained in Exhibit D12 is a travesty and lacking in substance. SOKEFUN v. AKINYEMI (1980) FEDERATION OF NLR 184. Counsel submitted that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements as held in the case of NNPC v. CLIFCO (2011) 46 NCQR 114 @ 120; SHENA SECURITY LIMITED v. AFRO PAK (2008) 34.2 NSCQR 1287 @ 1291; REYNOLDS CO. LTD. V. ROCKONOH CO. LTD. (2005) 22 NSCQR 1005 @ 1010, per G.A. Oguntade, JSC. REPLY TO CLAIMANT’S FINAL ADDRESS filed on 25th November, 2016 and dated 24th November, 2016. ON ISSUE 1 Defendant Counsel argued that Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15 relied on by claimant refers to the removal and discipline of clinical, administrative and technical staff, which does not include claimant who was employed by her own letter of appointment tendered as Exhibit C2 as Head Cook. Furthermore, that she led no evidence to prove that she fell into any of the 3 categories and that the Court cannot be left to decide on conjecture. ON ISSUE 2 Defence Counsel submitted that it is not true as argued by claimant in paragraph 5.6 – lines 7-8, that “The Minister however exercises control (sic) of parastatal at policy level through the Board of the parastatal only―. This is so because, by Sec. 17 of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, the Minister is empowered to give to the Board directors of a general character…, etc., that the Minister is not restricted strictly to matters on policy. Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought. Before I delve in to the merits of this suit it is required that the court address the issue of th e applicability of Section 2A Public Officers Protection Act LFN 2004 to the claimant suit. Now in the case of UKIRI V. FEDERAL CIVIL SERVICE COMMISSION & ANOR. (2010) LPELR-4715(CA) Where, relying on the Supreme Court pronouncement “In ADEKOYA VS FEDERAL HOUSING AUTHORITY [2008] 4 SC 167 where TOBI J.S.C held thus:-“A cause of action is said to be statute barred if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Act or Law has elapsed. Limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the Writ of Summons was filed. See EGBE VS THE HON JUSTICE ADEFARASIN [2002] 14 WRN 57 In order to determine whether an action is statute barred or not, the court must be involved in the exercise of calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer. Using the limitation period in the enabling statute (in this case Section 8 of the Limitation Law of Lagos State 1973) as the baseline, the Judge then works out when the cause of action arose and when the plaintiff actually instituted the action. If in the course of his calculation, there is a plus on the baseline year, then the action is statute barred. But if there is a minus, then the action is competent.” Per Bada, J.C.A. (Pp.16-17, Paras. E-C) In the instant case the claimant instituted this action on the 24th November 2015, from the claimant’s processes I find that the cause of action of action is the termination of the claimant’s appointment by a letter of the defendant Exhibit C3 which was dated 24th August 2015. Now 24th August 2015 – 24th November 2015 is precisely 3 months, and by UKIRI V. FEDERAL CIVIL SERVICE COMMISSION & ANOR there is a plus on the baseline year, then the action is statute barred―. I find there is no plus on the baseline accordingly. Especially as per the Interpretation Act LFN 2004 Section 15(2) (a) provides where the period is reckoned from a particular event, shall be construed as excluding the day on which the event occur. I find that this matter is in fact not statute barred. Now to the merit of this case, the claimant is claiming the following reliefs in this court; A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. An Order of Court reinstating the claimant and restoring her to her position (i.e.) Grade Level 7 step 4 as she was prior to the issue of letter of termination of her employment. An Order directing the defendant to pay to the claimant her arrears of salary from the date of purported termination to the determination of this suit at the rate of One Hundred and One Thousand, Six Hundred and Sixteen Naira Thirty Three Kobo (#101, 616, 33) per month An Order directing the defendant to pay the cost of litigation at Five Hundred Thousand naira (#500,000.00) only. An Order of General Damages for the trauma and hardship suffered by the claimant for the wrongful termination of her appointment to the tune of Ten Million (#10,000,000.00) only. Relief 1, 2 and 3 are for a declaration that the termination was grossly irregular, callous, unlawful, null and void same not having followed due process, an order reinstating her and another order for payment of salaries from the date of termination until the claimant is reinstated. Relief 4 is for an order for refund of litigation costs and Relief 5 is for damages of Ten Million (#10,000,000.00) only for wrongful termination of the claimant. With regard to reliefs 1, 2, and 3, in order to ascertain whether the claimant is entitled to these reliefs the court is required to determine the nature of the claimant’s employment relationship with the defendant. This is so because the answer to most of the issues raised in this appeal will depend on the nature of the contract of employment between the parties. The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavour….― The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be―, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service― see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C In SULIEMAN ADAMU Vs. MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B. In the instant case the claimant has tendered Exhibit C2 reproduced below: UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA OUR REF UCTH/P/1304 2nd November 1998 MISS SARAH A. AYUK C/o MR. NEELSON EKORI TAKIM DEPT. PG ADMINISTRATION UCTH Dear Sir/ Madam OFFER OF APPOINTMENT I am pleased to write on Behalf of the Board of Management of the above Teaching Hospital to offer you the post of HEAD COOK at the Hospital on a commencement salary of N17,604.00 (HATISS)per annum in the salary grade level 3 step 1 with effect from 2nd November 1998 /date of your assumption of duty. 2. This offer of appointment is subject to your being passed mentally fit for service with the Teaching Hospital. This appointment will except where your services are transferred after a previous confirmation, be on probation for two years or for longer period as may be deemed advisable after which it will be confirmed one pensionable terms. Within the probationary period, if it is established to the satisfaction of the Head of Department in which you are serving that you are not qualified for efficient service, or unsuitable in other ways, your appointment may be terminated at anytime by one months’ notice in writing or by payment of one month’s salary in lieu of notice without any compensation other than free transportation for yourself only to the place from where you were engaged and that such free transportation will be granted only if your conduct has been good and you claim it within two months of the date of the termination of your appointment Unless you are dismissed and provided you are not on any bond to serve the Hospital for a stipulated period you may terminate your engagement by a month’s notice in writing or by the payment of one month’s salary in lieu of such notice. You will be subject in all respects to all the conditions of service stipulated from time to time by the Board of Management. This conditions are usually those applicable to comparative posts in the Federal Civil Service of Nigeria. If you are prepared to accept this offer, I shall be glad if you do so in writing within one month of the date of the offer and at the same time indicate a date upon which you would be prepared to assume duty. Yours faithfully, (Signed) B. B. ETA For: Director of Administration. The claimant also tendered Exhibit C6 her pay slip for the month of November 2015 and her letter of termination C3 in furtherance of her appointment neither did she however tender the condition of Service of the Board of Management if any. The defendant however tendered her notification of Upgrading and /Conversion Exhibit D2. See the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) where the court of Appeal held that “In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of KWARA STATE POLYTECHNIC ILORIN V. SHITTU (2012) 41 WRN 26. And in the case NEW NIGERIA NEWSPAPERS LTD V. ATOYEBI (2013) LPELR-21489 (CA) where the Court of Appeal said this of employment with statutory flavour: “In employment with statutory flavour, that is, employment governed by statute where procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”See also OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787, OLORUNTOBA OJU V. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per Mbaba, J.C.A. (pp. 16-18, PARAS. G-C). The claimant had pleaded that her appointment was governed by an act of the National Assembly, the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Cap 463 LFN 2004 in its schedule lists the defendants as No. (i) and Section 1 o the said act constitutes a Board of Management to have the functions and powers set out in the Act. Section 5 provides that “(5) subject to this Act, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointments), advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital; and any such appointment shall be made having due regard to any personnel establishment approved for the hospital―. It was held by the Court of Appeal in “P. O. U. IYASE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (2000) 2 NWLR (Pt.643), pg. 47― Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particularly evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure.. “Per IBIYEYE, J.C.A. (P. 18, paras. B-E). “An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee..” UDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR  (2010) LPELR-3824(CA) Per Odili, JCA (P. 17, paras A-B) Looking at Exhibit C2 in the instant case I find that the subjection of the claimant to the condition of Service of the Board of Management, the reference to the application of the conditions in the Federal Civil Service and the fact that nowhere in the letter is the right to terminate reserved, which means termination of the claimant would be based on the terms and conditions of the Board of Management as contained in the enabling law all indicate that the claimant’s appointment is governed or made pursuant to a statute. I find and hold. From the foregoing I find that the claimant has provided enough evidence to enable the court hold that her appointment is one of statutory flavour. Having determined the status of the claimant the next thing on board is to look at the propriety of her termination. The letter of termination; Exhibit C3 is itself reproduced below: UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA 24th August 2015 Sarah Ayuk u.f.s. Deputy Director (Finance & Accounts) Accounts Department U.C.T.H. Calabar Sir, TERMINATION OF APPOINTMENT I am directed to refer to your contract of engagement contained in clause 4 & 5 of your appointment letter and accordingly terminate your appointment with the University of Calabar Teaching Hospital with immediate effect since your services are no longer required. You will however be paid one month’s salary in lieu of notice. You are therefore to hand over all Hospital property and or documents including your staff Identity Card to your Head of Department. By a copy of this letter, the DDF/A has been directed to stop your salary / allowances with immediate effect. (Signed) Ededet Eyoma Deputy Director (Human Resources) For Director Now, the University Teaching Hospitals (Reconstitution of Boards etc) Act, in Section 9 provides as follows; (9) Removal and discipline of clinical, administrative and technical staff (1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the hospital, other than the Chief Medical Director, should be removed from this office or employment, the Board shall require the secretary to – (a) give notice of those reasons to the person in question; (b) afford him an opportunity of making representations in persons on the matter to the Board; and (c) if the person in question so requests within a period of one month beginning with the date of the notice, make arrangements – (i) for a committee to investigate the matter and report on it to the Board; (ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter. and if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board―. To begin with the defendants made heavy weather of the argument that the claimant did not show the court how by her employment she was either Clinical, Administrative or Technical staf so as to come within the ambit of Section 9, the defendants apart from implying that the claimant does not fall within any of the three listed categories failed to show the court what category she did belong to as her employer. Especially as the defendant premised their entire defence argument on the much touted legal principle of he who asserts must prove relying on SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (Supra ) Be that as it may neither the UTHRB Act not the Labour Law 2014 defined these terms did not define the terms Clinical, administrative or Technical The Chambers 21st Century Dictionary Revised Edition© Chambers Harrap Publishers Ltd. 1997 defined Clinical to mean ‘Relating to, or like a clinic or hospital, said of medical studies based on or relating to, direct observation and treatment of patients as distinct from theoretical or experimental work.’ And defined Administration to mean ‘ the directing, managing or governing of a company’s affairs and Administrative to mean relating to administration while the word Technical was defined to mean ‘possessing knowledge of or specializing in or relation to a practical skill or applied science especially those studies which are useful to an industry. So taken in context of this case and the Hospital environment I find that Clinical staff would be those whose working in the direct observation and treatment of patients; such as Doctors and Nurses , Administrative staff as those whose work involves the directing and managing the Hospital affairs commonly depicted as support staff etc; Accountants, and Human resource personnel also often referred to as Administrative staff and then Technical staff would be those with specialized skill such as applied sciences used in the Hospital environment such as Lab technician and such other Radio magnetic imagining operatives. From the above I have no problem in situating the claimant within the administrative staff category. Now the claimant has maintained that at the time of her termination there was no Board in occupation, the last one having been dissolved in May 2015. The defendants have not controverted this fact but submitted that assertion rather they acceded contending that in the absence of a Board the Minister of Health steps in as the Board, in support of this contention the defendants on the one hand tendered Exhibit D15, a newspaper cutting duly certified highlighting s story titled “Buhari dissolves Federal Boards, sacks NIMASA D-G― of July 17th 2015 with asterixed portions; ‘Until the Boards are reinstated Chief executives are to refer all matters requiring their Boards attention to the President through their Permanent Secretary of their supervising Ministries’’ and on the other hand the defendant asked the court to rely on NTEWO V UCTH & ANOR CA/C/52/2009 delivered on 21st March 2013 with regard to actions taken where there were no Boards. The problems with both these contentions are as follows: with regard to the newspaper article, as argued by the claimant I find that the defendants present the Law or enabling Act the donates power to the Minister of Health to step in and act as Board in the absence of a Board, neither have they put forward any evidence that this matter was ever referred to the Permanent Secretary for the President nor is there before this court any evidence that the action they, the defendants, subsequently took, in terminating the claimant was actually undertaken on the advice or directives of the President. And with regard to NTEWO’ Supra, in that matter the Court of first instant and the Court of Appeal both placed reliance on a circular of Government with respect to the dismissal of the claimant and no such circular was presented to the Court in the instant case inter alia. . Looking at Exhibit C3 in the light of Section 9 UTHBR Act the letter was issued to the claimant without the due authorization of either the Board or the “Minister― or the Presidency through the Permanent Secretary hence making Exhibit C3 a letter issued without due authority, both parties presented evidence of disciplinary action taken by the defendants on the claimant prior to the letter of termination. From the evidence before the court and the disciplinary processes themselves it becomes apparent that DW issued the queries to the claimant, the reports of the panel that undertook the audit review recommended that the claimant among others be surcharged while the 2nd panel recommended her dismissal in February 2014. These panels reported to DW, the question arises why any action wasn’t taken between February 2014 and May 2015 when there was actually a Board in place. The case of the defendant was that the President dissolved Federal Boards on or around July 2015 relying on Exhibit D5, now Exhibit D2, the Memo directing the implementation of the 2nd panel’s report was issued on 15th August 2015 (was certified by DW) following a therein stated “Meeting of Management― which was stated to have held on the 10th August 2015, the minutes of the said meeting were not presented to court and no explanation was given why the matter was suddenly resurrected barely a month after the publication of the dissolution of Boards and not concluded while there was a board in place. The defendants have not put before the court any evidence which authorizes DW to terminate the claimant, there is no evidence that the report of the 2nd Panel, ‘The Panel to Investigate a Case of Financial Impropriety against the Under-listed Staff of Accounts Department UCTH’ was ever submitted to the Board, Permanent Secretary not to mention the Presidency. The defendants tendered Exhibit D3 and D4 reports of panels; the former D3 dated February 2014 was the report of financial impropriety against the under-listed staff of the Accounts department, a report made by a 5 man investigation panel who inter alia reviewed Exhibit D4, which was dated 24th June 2013 and is the Audit. Looking at these two documents I find that D4submitted a summary and analysis of the Auditor investigation and consisted mainly of tabulations of routine inspections of various sections if the hospital, while Exhibit D3 was made up primarily of excerpts of interviews held and errant copies of receipts obtained from patients where available. In this court, when dealing with excerpts, summaries and annexes of documents frontloaded or tendered by the parties without showing the Court the fuller documents from which they were extracted. Such excerpts were discountenanced. This Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court, to enable the Court ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, In like manner, Exhibits D3 and D4 in the instant case, in being Summaries, analyses and excerpts made from sources which were no tendered before this court I find Exhibits D3 and Exhibit D 4 would have no evidential value and so would be discountenanced for purposes of this judgment. See also the unreported case of SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014 Having said that the defendant I find did not rely on the disciplinary procedure to terminate the claimant rather they relied on Exhibit C2, the letter of appointment to terminate the claimant in line with paragraph 7 therein. Furthermore Section 9(1) of the Act makes it mandatory that if it appears necessary to consider the removal of an officer in the cadre of the claimant, the Board shall require the Secretary to give notice to the affected person of the reason why she may be considered for removal. And all through the gamut of Exhibits C4 to Exhibit C4(2) as well as Exhibits D3 and D4 there is no notice issued by the Secretary to the claimant as stipulated under section 9(1 )(a) of the Act. Also the setting up of an investigating committee may be done only if the claimant request for it. In the instant case there is no evidence that in the record that the claimant made any such request. Rather, an investigation Panel was instituted for her. At this juncture, it is glaringly clear that defendants blatantly violated the provisions of section 9(1) (a), (b) and (c) of the Act.” UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR. v. BASSEY  (2008) LPELR-8553(CA). An employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See DR. TAIWO OLORUNTOBA-OJU & ORS. V. PROF. SHUAIB O. ABDUL-RAHEEM & ORS. (2009) 13 NWLR PT.1157 PG.83; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NW LR PT.622 PG.290. BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. V. ESEALUKA LPELR- 20159(CA). The case of OKOCHA V. CSC, EDO STATE [2004] 3 NWLR (PT. 861) 582 is most explicit on this point when it states that― public servants are invested with a legal status and they cannot be properly or legally removed until the said Rules are strictly complied with. See also this Court’s decisions in FRANCIS OLUYEMI OLAMIJU, ESQ. V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/157/2011 the judgment of which was delivered on November 26, 2012 and MR. A. A. OWOLABI V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/160/2011 the judgment of which was delivered on November 26, 2012. In the circumstances of the claimant’s case I find the termination of the claimant wrongful, grossly irregular, unlawful, null and void and totally devoid of due process, I so find and hold. Having declared the retirement wrong, unlawful, null and void, the law is that it is deemed not to have occurred in the first place. See E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION [2005] ALL FWLR (PT. 285) 431, where it was held that once the dismissal of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still is a civil servant.  Reliefs 1, 2, and 3 succeed. The proper thing for the defendant to do in a situation where the Board approval is required to take any action and no Board is in place, would be to wait until the Board is reconstituted. See the case SUIT NO. NICN/LA/590/2012 ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY delivered October 24, 2016 This court held that “Rather than await the composition of the Board, the Chairman/Chief Executive in breach of Regulation 38 reinstated the claimant. The court went on to hold that “ that The claimant was then erroneously recalled from interdiction and reinstated ……The defendant being a statutory body, it is imperative for it to comply fully with its Regulations on discipline― that court held that as the claimant’s appointment being one with statutory flavour, the failure of the defendant Agency to comply with Regulation 38 and 121 rendered his recall from interdiction and reinstatement null and void―. The claimants had contended that where a public servant is accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. This is however not the current position of the law see the cases of OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 where “a similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 –‘The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. (2004) 12 NWLR (PT. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. This argument of the claimant fails and is dismissed While reliefs 4 and 5 are for reimbursement of legal cost incurred by the claimant and damages for trauma and hardship following an unlawful termination. With regard to the claim for cost the position of the law is as was stated by GUINNESS (NIG.) PLC V. NWOKE [2000] 12 NWLR (PT. 689) 135 AT 150 that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party. The Claimant merely submitted that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements. When GUINNESS NIGERIA PLC V. EMMANUEL NWOKE (SUPRA) held that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, it simply was frowning on something like this. The claimant tendered Exhibit C7, a Memorandum of Understanding indicating that the claimant and two 0thers had paid N1, 000, 000.00 to her Counsel as part payment for his legal representation for them. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)―. The Memorandum of Understanding tendered in this case does not begin to mention the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees appears speculative. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. Relief 4) accordingly fails and so is dismissed. As for Relief 5 for general damages, having stated that Relief 3 for re instatement succeeds above the court is precluded for granting special damages as such is terms as double compensation , see the case of CCB (NIG.) LTD V. OKONKWO [2001] 15 NWLR (PT. 735) 114 CA, which held that the Court will not make an order of reinstatement of an employee to his employment after it awarded damages to an employee for his unlawful dismissal from his employment because it would amount to double compensation to the employee. Seeing that damages and reinstatement do not go together, this relief No.5 therefore fails. The claimant’s case, for the avoidance of doubt succeeds in part. The Court judgment therefore is this. It is hereby declared that the termination of the claimant’s appointment by the defendant is grossly irregular, unlawful, null and void same not having followed due process. It is hereby ordered that the claimant be reinstated to her rightful position without loss of seniority Cost of this suit is put at N100, 000.00 This is the courts judgment and it is hereby entered accordingly. …………………………………………. Hon. Justice E. N. N. Agbakoba Judge.
