SARAH A. AYUK-vs-UNIVERSITY OF CALABAR TEACHING HOSPITAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 3^RD MARCH, 2017 SUIT NO: NICN/CA/60/2015

BETWEEN:

SARAH A. AYUK CLAIMANT

AND:

UNIVERSITY OF CALABAR TEACHING HOSPITAL DEFENDANT

REPRESENTATION

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 24^th 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 11^th 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 6^th 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 14^th 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 30^th 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 24^th 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 2^nd 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 24^th 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 11^th 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 24^th 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 1^st November, 2016 and dated 31^st 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 22^nd 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 25^th November, 2016 and dated 24^th 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 24^th 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 24^th August 2015.

Now 24^th August 2015 – 24^th 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

(a) Purely Master and Servant relationship

(b) Servants who hold their office at the pleasure of the employer

(c) Employment with statutory flavour….”

The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C

In SULIEMAN ADAMU Vs. MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.

In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B.

In the instant case the claimant has tendered Exhibit C2 reproduced below:

UNIVERSITY OF CALABAR TEACHING HOSPITAL

P.M.B. 1278

CALBAR, NIGERIA

OUR REF UCTH/P/1304 2^nd 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 2^nd November 1998 /date of your assumption of duty.

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,