UDEZE UKAMAKA NGOZIKA -VS- DR. ONWE EMEKA OGAH & 2 ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 10th May 2019

SUIT NO. NICN/ABK/02/2018

BETWEEN

UDEZE UKAMAKA NGOZIKA

CLAIMANT

AND

DR. ONWE EMEKA OGAH

Chief Medical Director, Federal Teaching Hospital Abakaliki

CHIEF C. C. OGBU

Director of Administration, Federal Teaching Hospital Abakaliki

BOARD OF MANAGEMENT

Federal Teaching Hospital Abakaliki

FEDERAL TEACHING HOSPITAL ABAKALIKI

DEFENDANTS

Representation:

Benson Sopuru Nwankwo, SAN with Ikechukwu NwankwoEsq. andEdith Ifeoma Nweke Esq.for the Claimant

Victor ChibuezeOkechukwuEsq. with Princess Ivor Aja-Nwachukwu Esq., for the Defendants

JUDGMENT

This action was commenced on 19th June 2018. The originating processes were served on the Defendants on 19th June 2018. On 9th July 2018, the Claimant was granted leave to amend her originating processes. By her amended statement of facts dated 12th July 2018, the Claimant claimed against the Defendants jointly and severally as follows:

A declaration that the conduct of the Defendants by terminating the employment of the Claimant by letter, served on the Claimant on 11/6/18 but backdated to 25/1/18 is wrongful, discriminatory and void.

An order of the Hon. Court compelling the Defendants to reinstate the Claimant to her office.

An order of the Hon. Court compelling the Defendants to pay all monthly salaries, allowances and entitlements due and payable to the Claimant.

A declaration that the Claimant’s appointment in the Federal Teaching Hospital Abakaliki is still subsisting and valid by operation of the law and also having statutory flavour.

And for such further or related orders the Hon. Court may deem fit to make in the circumstances.

The Defendants entered appearance and filed their defence processes on 28th August 2018. The Claimant filed a reply to the joint statement of defence on 25th September 2018. Trial commenced on 3rd December 2018 and was concluded on 8th February 2019. The Claimant testified for herself and tendered 17 exhibits in proof of her claim. Exhibit 1 is offer of appointment, exhibit 2 is letter captioned ‘proper placement’, exhibit 3 is confirmation of appointment, exhibit 4 is notification of promotion, exhibit 5 is internal memo posting the Claimant to Mater Misericordiae Hospital, Afikpo, exhibit 6 is Claimant’s letter dated 2/2/2017, exhibit 7 is Claimant’s apology dated 3/2/2017, exhibit 8 is Claimant’s letter dated 16/2/2017 requesting for transmission of exhibit 5, exhibit 9 is Claimant’s apology dated 17/2/2017, exhibit 10 is query dated 18/5/2017, exhibit 11 is Claimant’s answer to query, exhibit 12 is Claimant’s request for payment of October 2017 salary and allowances; exhibit 13 is Claimant’s request for payment for her first 30 days in office, exhibits 14 and 15 are letters by Claimant’s mother to the 1st Defendant on Claimant’s health status, exhibit 16 is letter from Nnamdi Azikiwe University Teaching Hospital on Claimant’s health status and exhibit 17 is termination letter. The Defendants called two witnesses. The first defence witness is Dr. Akpata Aja Obasi of the Department of Surgery, Federal Teaching Hospital, Abakaliki. He adopted his statement on oath dated 28th August 2018 and tendered 9 exhibits. Exhibit DW1A is Claimant’s response to query dated 10/1/2017 and an attachment, exhibit DW1B is internal memo posting the Claimant to Mater Misericordiae Hospital, Afikpo, exhibit DW1C is query dated 18/5/2017, exhibit DW1D is Defendant’s letter to Mater Misericordiae Hospital on Claimant’s posting to the Hospital; exhibit DW1E is query dated 6/1/2017, exhibit DW1F is query dated 22/12/2016, exhibit DW1G is Claimant’s response to the query, exhibit DW1H is query dated 30/12/2016 and exhibit DW1J is Claimant’s response to the query. The second defence witness is Mr. Oji Uzodinma, the Public Relation Officer of the 4th Defendant. He adopted his statement on oath also dated 28th August 2018 and was cross-examined. Thereafter, the case was adjourned for adoption of final written addresses. On 10th May 2019, learned Counsel for the Defendants, Mr. Okechukwu, adopted the Defendants’ final written address dated 12th March 2018 and filed on 13th March 2019 and urged the Court to dismiss the suit with heavy cost. Learned Counsel for the Claimant, Mr. Nwankwo, also adopted the Claimant’s final written address dated 25th March 2019. In urging the Court to grant the Claimant’s claims and dismiss the Defendants’ defence, he referred the Court to the case of Standard Chartered Bank Nigeria Limited v. Ndidi Adegbite [2019] 1 NWLR [pt.1653] 348.

COURT’S DECISION

I have carefully considered the processes filed in this suit, the exhibits, authorities cited and the arguments canvassed by the parties in their final written addresses. Parties agree that the Claimant was employed by the 4th Defendant on 19th June 2012 as Prosthetics 11 effective 5th July 2012. Her employment was confirmed on 21st December 2015 and she was promoted on 20th December 2016 to Senior Prosthetics on salary grade level CONHESS 9 Step 2 effective 1st January 2016, exhibit 4. The Claimant was seconded to Mater Misericordiae Hospital, Afikpo on 16th January 2017, exhibit 5. By the Claimant’s account she was at Mater Misericordiae Hospital on 17th January 2017 but could not resume duties on account of non-receipt of her posting letter by the Hospital. She was asked to return after seven days which she did but was again informed that her posting letter had not been sent. She returned to the 4th Defendant and met with the Chairman, Medical Advisory Committee with exhibit 6 complaining about the non-existence of Prosthetics unit in Mater Misericordiae Hospital and was asked to wait for one week to know whether the posting letter had been delivered to Mater Misericordiae Hospital. She returned to Mater Misericordiae Hospital at the end of one week but the posting letter had not been received resulting in exhibit 8 which was not well received by the Chairman, Medical Advisory Committee giving rise to exhibit 9. Thereafter, there was ‘dead silence’ until May 2017 when she received exhibit 10. She answered the query, exhibit 11, but took no further steps until November 2017 when she wrote exhibits 12 and 13 requesting for her October salary and payment for her first 30 days in office. Nothing was heard about the Claimant until 12th February 2018 when her mother wrote to inform the 1st Defendant of her state of health. The Claimant’s employment was terminated by letter dated 25th January 2018, exhibit 17. The Defendants disagreed with the Claimant’s account and insisted that she was not rejected by Mater Misericordiae Hospital. The Defendants averred that the Claimant was unwilling to work at Mater Misericordiae Hospital and as a result gave excuses including exhibit 6. Due to the Claimant’s plea, exhibit DW1D was despatched to Mater Misericordiae Hospital but she reported for duty at the Hospital only on 17th February 2017, two weeks after exhibit DW1D was written, and disappeared until after receipt of exhibit DW1C. She answered the query, exhibit 11, and thereafter disappeared leading to stoppage of her salary in October 2017 and eventual disengagement. The Defendants averred that three queries, exhibits DW1F, DW1H and DW1E were served on the Claimant but she refused to answer the queries until 10th January 2017, exhibits DW1A, DW1G and DW1J. The Claimant’s case is that the conduct of the Defendants in terminating her employment is wrongful, discriminatory and void and consequently she prayed the Court for re-instatement and payment of her salaries, allowances and entitlements. The Defendants submitted four issues for determination namely, whether the Claimant’s absence from duty from the month of January 2017 to the month of October 2017 without permission or leave of absence does not amount to gross misconduct? Issue two is whether the termination of the Claimant’s appointment is proper in law? Issue three is whether the Claimant was given fair hearing before the termination of her appointment; and issue four is whether the Claimant is entitled to any of the reliefs sought? On her part, the Claimant formulated two issues to wit, whether in view of the provision of chapter 16, section 5 rules 160501 and 160502 of the Public Service Rules, 2008, the trial Court was right in holding that the appellants lacked the powers to dismiss the respondent; and whether, having regard to the evidence before the Court, the trial Court was right in holding that the disciplinary procedure stipulated by the Public Service Rules was not followed and the respondent was not given a fair hearing?

Arguing issue one, the Defendants submitted that the Claimant’s absence without authorisation from 16th January 2017 till October 2017 when her salary was stopped amounts to gross misconduct. They contended that they have a right to second the Claimant to Mater Misericordiae Hospital and her absence for 10 months while receiving salaries amounts to gross misconduct which attracts summary dismissal and does not require the setting up of an investigating panel.They argued that the Claimant was given fair hearing by service of the query on her on 18th May 2017, exhibits 10 and DW1C; but she did not exculpate herself. The Defendants contended that it is the duty of the Claimant to prove that her dismissal was wrongful and discriminatory which burden she did not discharge and referred to Nigeria Airways v. Gbajumo [1992] 5 NWLR [pt.244] 735. They argued that what exists between the Claimant and the Defendants is contractual and to enforce her right under this contract, the Claimant must show that she performed her duties and referred to Dr. Soga Ogundalu v. Chief A.E.O. Macjob [2015] 243 LRCN 1 at 42. On issue two, the Defendants submitted that termination of the Claimant’s appointment is proper in law since the letter terminating her appointment was written before notification of her alleged health challenges. It was argued that the Claimant’s failure to satisfactorily explain her failure to resume at Mater Misericordiae Hospital even after she was queried and answered the query amounts to gross misconduct for which she was liable to summary dismissal. It was also argued that the question of fair hearing does not arise since the Claimant was queried and she answered the query but continued to be absent from work and relied on Dr. G. S. Obo v. Commissioner for Education, Bendel State & Anor. [2001] 5 NSCQR 192 at 198. The Defendants contended that the onus is on the Claimant to place before the Court the terms of her contract of employment and prove in what manner the terms were breached and referred to Okomu Oil Palm Co. Ltd v. Iserhienrhien [2001] 5 NSCQR 802 at 811 and Katto v. CBN [1999] 6 NWLR [pt.607] 390 at 405. They argued that the Claimant did not plead the terms of her contract of employment which were violated and did not prove how the statutory provisions governing her employment were violated to make her termination null and void and relied on Olaniyan v. Unilag [1985] 2 NWLR [pt.9] 599. It was submitted that for a termination of an employee’s appointment to be wrong in law, the employee must plead and prove that he was employed by the Defendant; the terms and conditions of his appointment; who can appoint and remove him; the circumstances under which his appointment can be terminated and whether his appointment can only be terminated by a person or authority other than the Defendant; and the case of Morohunfola v. Kwara Tech [1990] 4 NWLR [pt.145] 506 was cited in support. The Defendants contended that the Claimant failed woefully to prove these. On issue three, it was submitted that although the Claimant’s conduct did not require adherence to the principle of fair hearing, the Defendants nonetheless served her a query but she failed to provide cogent reason for her conduct, the case of Dr. G. S. Obo v. Commissioner for Education, Bendel State & Anor. [supra] was relied on. On issue four, it was submitted that an employee who complains that her appointment has been wrongly terminated has the onus to place before the Court the terms and conditions of her contract of employment and prove in what manner the terms were breached by the employers; this the Claimant failed to do. The Defendants finally contended that the Claimant failed to prove her claim and her reliefs must fail. The Claimant argued her two issues for determination together and relied extensively on the case of The Board Management, Federal Medical Centre & Anor. v. Mr. David Terhemba Abakume [2016] 10 NWLR [pt.1521] 536. She submitted that her appointment was not terminated by the appropriate body, the Federal Civil Service Commission which did not delegate its disciplinary powers to the Management of the 4th Defendant. Therefore, the termination of the Claimant’s appointment which enjoys statutory flavour is void. She explained that the Defendants had resolved to penalise her before the posting to Mater Misericordiae Hospital. She contended that she was not given a fair hearing and urged the Court to grant her reliefs.

I have reviewed the issues for determination formulated by the parties in their final written addresses and, in my respectful view, all of them cannot be taken together. The fundamental issue that calls for determination in this case, in my considered opinion, is whether from the totality of the evidence before this Court, the Claimant is entitled to judgment? The law is fairly settled that whoever desires the 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, see sections 131[1] and 133[1] of the Evidence Act 2011 and the cases of Engr. George T. A. Nduul v. Barr. Benjamin Wayo & 2Ors. [2018] 7 SC [pt.111] 164 at 212 and Chemiron International Limited v. Stabilini Visinoni Limited [2018] 17 NWLR [pt. 1647] 62 at 78-79. It is axiomatic that the contract of service is the bedrock upon which an aggrieved employee must found her case; she succeeds or fails upon the terms contained therein. The Court cannot go outside the terms mutually agreed in deciding the rights and obligations of the parties, see A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154. Therefore, an employee who complains that her employment was wrongfully terminated has the burden to place before the Court the terms of her contract of service and prove in what manner those terms were breached by the employer. See the cases of Francis Adesegun Katto v. Central Bank of Nigeria [1999] 6 NWLR [pt.607] 390 at 405 and Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660 at 673. Where the Claimant successfully proves the terms of her contract of service and the manner those terms were breached by the employer a prima facie case is made out and the burden shifts to the Defendants to adduce counter evidence to sustain their defence. Where the Claimant fails to make out a prima facie case there will be nothing for the Defendants to rebut and the case will be dismissed, See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [supra] at page 674 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo & 2Ors. [supra]. The thrust of the Claimant’s claim is that the conduct of the Defendants in terminating her employment is wrongful, discriminatory and void. Although she pleaded and tendered her letters of employment, confirmation and promotion, exhibits 1, 3 and 4, the terms of her contract of service were not pleaded or proved. The Claimant relied on Rules 160501 and 160502 of the Public Service Rules 2008 and the case of The Board Management, Federal Medical Centre & Anor. v. Mr. David Terhemba Abakume [supra] in her final written address but nowhere in her pleadings and evidence was reference made to the relevant provisions of the Public Service Rules and how the Defendants breached them. While it is true that a party is to plead facts only and not law or the evidence by which those facts are to be proved, where a party relies on breach of a statutory provision or conditions of service, that fact must be specifically pleaded. Otherwise, she will not be entitled to lead evidence in respect of matters not pleaded. This is so because parties are bound by their pleadings and they are not allowed to make a case which is at variance with their pleadings, see B. A. Morohunfola v. Kwara State College of Technology [1990] 4 NWLR [pt.145] 506 at 518 and Maiyaki Adamu & Anor. v. Alhaji Maku Shaba [2010] LPELR-3627[CA] 18. It is trite that submissions of Counsel no matter how brilliant cannot take the place of evidence; and any submission on matters in respect of which evidence was not led goes to no issue and must be discountenanced. See Hydro-Tech Nigeria Ltd. & Anor. v. Leadway Assurance Co. Ltd. & Ors. [2016] LPELR-40146[CA] at page 40. What are the facts which the Claimant relies on to prove her case? A summary of the case put forward by the Claimant is that she was seconded to Mater Misericordiae Hospital on 16th January 2017. She reported for duty at the hospital but when her posting letter was not found she was asked to go and come back later. She informed her employers about the situation and after waiting for a while returned to Mater Misericordiae Hospital but the posting letter was still not there. She visited the hospital a few more times and went back to her house and was there until she received a telephone call from Mater Misericordiae Hospital. On getting to the Hospital she received a query and answered the query. She continued to receive her monthly salary until it was stopped in October 2017. She protested the stoppage of her salary but did not receive any response from the Defendants until her employment was terminated. It is clear from these facts that the Claimant was not working from 16th January 2017 to October 2017. There is also evidence before this Court that the Claimant began to be absent from duty from 22nd December 2016 resulting in a query, exhibit DW1E, dated 6th January 2017. Her answer to the query, exhibit DW1A, dated 10th January 2017 is intriguing and reads:

“There is no reason that I will give which will warrant me to be absent from work for two [2] weeks. It is against civil service rule. I am praying for forgiveness. Tender justice with mercy.”

Her response to query dated 30th December 2016, exhibit DW1H, is similar. In exhibit DW1J dated 10th January 2017, she wrote: “I have not been on my duty post from 22nd December, 2016 to this very date that this query was issued. I do not have any reason not to be on my duty post. I know that what I did is immoral. I am praying for forgiveness.” Facts admitted require no further proof, see section 123 of the Evidence Act, 2011 and Adeokin Records & Anor. v. Musical Copyright Society of Nigeria [Ltd/Gte] [2018] 7 SC [pt.11] 40 at 54. What appears from these queries, exhibits DW1F, DW1H, DWIE and DW1C; and the Claimant’s responses, exhibits DW1G, DW1J, DW1A and 11, is that the Claimant is a habitual absentee with scant regard for her work. There is evidence that the Claimant did not discharge her duties to the 4th Defendant from 22nd December 2016 up till termination of her employment on 25th January 2018 and did not obtain any approval to be absent. See paragraphs 6 to 11 of the amended statement of facts, paragraphs 16, 18, 19, 27[b] to 27[l] and 28 of the statement of defence and exhibits DW1A, DW1C, DW1E, DW1F, DW1G, DW1H and DW1J. These exhibits were tendered without objection and the Defendants’ witnesses were not cross-examined on them. It is safe to conclude that these exhibits are undisputed and I am bound to accept the contents thereof as correct, see Wale Olasehinde v. The State [2019] 1 NWLR [pt.1654] 555 at 575. Under cross examination, the Claimant said: “It is correct to say that from January 2017 up till September 2017 I was receiving my salary. It is correct that between January 2017 and October 2017 I was not going to anywhere because I was posted to Afikpo and they did not receive me because they said they did not know about the posting letter I came with.” She was receiving salary for work not done. It is trite law that where there is oral and documentary evidence, the documentary evidence serves as a hangar with which to evaluate the oral testimony, see United Bank for Africa Plc & Anor. v. Alhaji Babangida Jargaba [2002] 2 NWLR [pt.750] 200 at 218. The irresistible conclusion from these pieces of evidence is that the Claimant has repudiated her contract of service and cannot now be heard to say that the contract is still subsisting.

A major complaint of the Claimant is that her employment was not terminated by the appropriate body and as a result she seeks a declaration that her appointment with the 4th Defendant is still subsisting. I have reviewed her statement of facts and reply to statement of defence and there is no averment on how she was appointed, the terms and conditions of her appointment; who can appoint and remove her; the circumstances under which her appointment can be terminated or that her appointment can only be terminated by the Federal Civil Service Commission. Equally, no evidence was led on these facts. This is fatal to the Claimant’s case. See B. A. Morohunfola v. Kwara State College of Technology [supra] at 525-526. However,it is a settled principle of law that the power to appoint a person into an office includes the power to remove him. See section 11[1][b] of the Interpretation Act and the case of Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [supra] at page 678. From exhibits 1, 2, 3 and 4 it is clear that the 4th Defendant employed, confirmed and promoted the Claimant. There is nothing before me to show that in doing this the 4th Defendant sought and obtained the approval of the Federal Civil Service Commission. Consequently, the 4th Defendant does not require the approval of the Federal Civil Service Commission to terminate her employment. See section 11[1][b] of the Interpretation Act and the case of Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [supra] at page 686. Rule 160501 of the Public Service Rules 2008 empowers Boards or Councils of the Parastatals to exercise disciplinary control over its employees in accordance with their respective conditions of service. It provides:

“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.”

The 4th Defendant’s conditions of service were not pleaded and no evidence was led to show what these provisions are and how they were breached. Rule 160502 of the Public Service Rules 2008 knocks the bottom off the Claimant’s argument. It provides:

“The provisions of sections 2 to 6 in 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 the Civil Service of the Federation or the Permanent Secretary, the Board/Councils shall perform such functions.”

Clearly, the Federal Civil Service Commission is not involved in the discipline of 4th Defendant’s employees, which power resides in the Council of the 4th Defendant. In The Board Management, Federal Medical Centre & Anor. v. Mr. David Terhemba Abakume [supra] it was held that by the combined provisions of Rules 160501 and 160502 of the Public Service Rules 2008, the Board or Council of the Parastatals have the power to discipline the employees in their respective institutions. The submission of the learned Senior Counsel in paragraphs 22[a] and [d] of the Claimant’s final written address is, with due respect, misconceived. Rule 160502 of the Public Service Rules provides that sections 2 to 6 in Chapter 3 of the Public Service Rules shall guide the Council in performance of its duties. Section 2 deals with general inefficiency. Section 3 defines misconduct and prescribed punishment. Section 4 deals with serious misconduct, which includes absence from duty without leave, see Rule 030402[e]. Rule 030413 provides:

“Any officer who absents himself/herself from duty or travels out from Nigeria without leave renders himself/herself liable to be dismissed from the service and the onus shall rest on him/her, to show that the circumstances do not justify the imposition of the full penalty.”

There is unchallenged evidence that the Claimant was absent without leave from 22nd December 2016 and over a period of one year. There is also evidence that the first query was issued by the Claimant’s Head of Department, Obasi A. A. of the Department of Surgery. On 11th January 2017, Mr. Obasi forwarded the queries and the Claimant’s responses to the Chairman, Medical Advisory Council, see exhibit DW1A and the attachment. Upon her secondment to Mater Misericordiae Hospital and discovery that the Claimant had not resumed, a further query was served on her, exhibit DW1C, her response is exhibit 11. Still she did not go to work and did not discharge her duties leading to stoppage of her salary and eventual termination. Nevertheless, she contended that the 4th Defendant did not give her a fair hearing before terminating her employment. I have found earlier in this judgment that the Claimant’s continued absence from work without permission amounts to a repudiation of her contract of service. Where an employee repudiates her contract of service by abandoning her work, the punishment is summary dismissal. In that case there is no need to set up a disciplinary panel to investigate the employee. See Rule 030413 Public Service Rules 2008 and the case of Dr. G. S. Obo v. Commissioner of Education, Bendel State & Anor. [2001] 2 NWLR [pt.698]625 at 635. At page 637 of the report, Onu, J.S.C., posited that asking for the constitutional relief of fair hearing in such circumstances should be discountenanced since by his acts of gross misconduct, the employee deserved more than a mere termination of his appointment as required by the Civil Service Rules. In addition, it is settled law that accusing an employee of misconduct by way of a query and allowing the employee to answer the query, and the employee answers the query before a decision is taken against her satisfies the requirements of fair hearing, see B. A. Imonikhe v. Unity Bank Plc [2011] LPELR-1502[SC] 31. Furthermore, Rule 030307[iii] and [iv] of the Public Service Rules 2008 gives the 4th Defendant power to take any decision it considers appropriate if it is not satisfied with the Claimant’s answer to query. Accordingly, I find and hold that the Claimant’s termination was proper and the 4th Defendant has the authority to determine the Claimant’s employment.

This leads me to the claims of the Claimant. The first relief is for a declaration that the conduct of the Defendants by terminating the employment of the Claimant by a letter served on the Claimant on 11/6/18 but back-dated to 25/1/18 is wrongful, discriminatory and void. There is evidence that the letter of termination, exhibit 17, is dated 25th January 2018. The Defendants did not deny that the letter of termination was served on the Claimant on 11th June 2018, but averred that the letter was ready since 25th January 2018 but could not be served on the Claimant because her whereabout was unknown and the Claimant’s mother refused to receive the letter on her behalf. See paragraph 22 of the amended statement of facts and paragraph 26 of the statement of defence. Ordinarily, a letter of termination of employment becomes effective upon receipt by the employee and a retrospective letter of termination is null and void, see The West African Examinations Council v. Felix Iwarue Oshionebo [2006] 12 NWLR [pt.994] 258 at 272 and Chief Akindele Ojo Sunday v. Oyedele Samuel Olugbenga & 4Ors. [2008] LPELR-4995[CA] 10-11. However, where an employee repudiates her contract of employment, as in the instant case, a letter of termination of her contract of service with retrospective effect is valid, see Dr. G. S. Obo v. Commissioner of Education, Bendel State & Anor. [2001] LPELR-2187[SC] 8,where Kutigi, J.S.C. [as he then was] held:

“Since it was the plaintiff who wrongfully repudiated the contract of service by his wilful failure to carry out his duties under the contract, the termination of his appointment with retrospective effect is quite in order.”

The Claimant admitted that she was absent without leave for an extended period of time and failed to discharge her duties to the 4th Defendant. In these circumstances, her termination with effect from 25th January 2018 is valid. The fact that her health began to deteriorate from December 2017 does not negate this finding. She had abandoned her duties from 22nd December 2016 long before she took ill. Her subsequent illness, therefore, is not an attenuating circumstance. Also, the fact of discrimination was not proved and it is not for me to speculate. Exhibit 17, the letter of termination, is clear on the reason for terminating the Claimant’s employment. It states:

“I write to inform you that the Management has observed that as of this date, you have been absent from duty without leave since February 2017. Management equally observed that there was no further information from you since the said date. This act is termed “absence from duty without leave” and provided for under Chapter 3, Section 4, Rule 030402 [e] of the Public Service Rules [2008 Edition].”

The Claimant has not denied that she was absent without leave. She has also not denied that her employment can be terminated pursuant to Rule 030402 of the Public Service Rules 2008. The motive which impelled an employer to terminate lawfully a contract of employment is not relevant and an action cannot lie against the employer as it is not guilty of breach of contract. See O. O. Oyedele v. Ife University Teaching Hospital Complex Management Board [1990] 6 NWLR [pt.155] 194 at 199. Learned Counsel for the Claimant referred the Court to the case of Standard Chartered Bank Nigeria Limited v. Ndidi Adegbite [2019] 1 NWLR [pt.1653] 348. I have read that authority and the facts are not on all fours with the facts of this case. In that case the Claimant applied for and was given maternity leave. She further applied and was granted an extension of the leave on health grounds. On 3rd February 2006, she had a meeting with her supervisor who informed her that her appraisal rating was poor. As a result, she resigned and in a subsequent action she claimed that in evaluating her performance for 2005, the Defendant discriminated against her on grounds of her sex and by reason of her being a nursing mother. The lower court found for the Claimant and the decision was upheld by the Court of Appeal. In upholding the decision of the High Court of Lagos State, the Court of Appeal held that the burden on the Claimant to prove discrimination had been discharged. In the instant case, apart from the relief, there is no pleading or evidence of discrimination. He that asserts must prove, see section 136[1] of the Evidence Act 2011. In the light of the foregoing, I find and hold that this relief has not been proved and it is accordingly dismissed.

The second claim is for an order compelling the Defendants to reinstate the Claimant to her office. This claim is dependent on the success of claim one above. There must be a declaration of right in favour of the Claimant before an order can be made compelling the Defendants to reinstate her to her office. No such declaration was made and once the principal order sought is refused, no order incidental to the principal order can be granted. See Benjamin Ukelere v. First Bank of Nig Plc [2011] LPELR-3869[CA] at page 29. This relief fails and it is dismissed. The third claim is for an order compelling the Defendants to pay all monthly salaries, allowances and entitlements due and payable to the Claimant. There is no pleading and evidence in support of this claim. What the Claimant’s monthly salary, allowances and entitlements are were not stated. The only pleading and evidence relate to stoppage of her salary from October 2017. There is uncontroverted evidence that the Claimant was absent from work without leave from 22nd December 2016 until termination of her employment on 25th January 2018. Her refusal to discharge her duties to the 4th Defendant is a fundamental breach of her contract of service and evinces an intention no longer to be bound by that contract. Having repudiated her contract of service she can no longer claim salaries and allowances for a contract she has walked away from. See Dr. G. S. Obo v. Commissioner of Education, Bendel State & Anor. [supra]. It is also the law that the Court will not direct payment of salaries and allowances to an employee for months that she did not work. Even the Bible enjoins that a person who does not work should not eat. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 55 – 56. The Claimant refused to discharge her duties to the 4th Defendant for over a year, she cannot turn around to demand salaries and allowances for services she did not render. This claim fails and it is hereby dismissed. The fourth claim is for a declaration that the Claimant’s appointment with the 4th Defendant is still subsisting and valid by operation of law and also having a statutory flavour. This claim flows from relief one. I have held above that the termination of the Claimant’s employment is proper in law and refused the claim for reinstatement. Therefore, the declaration sought cannot be made. Having repudiated her contract of service, she cannot treat the same contract as subsisting. She cannot eat her cake and still have it. The principal claim having failed no incidental claim can be granted, see Benjamin Ukelere v. First Bank of Nig Plc [supra]. This claim fails and it is dismissed.

Before I conclude, I must say that the case of The Board Management, Federal Medical Centre & Anor. v. Mr. David Terhemba Abakume [supra] relied on by the Claimant is not on all fours with this case. In that case the Claimant did not abandon his duty. He was queried for other misfeasance but refused to acknowledge or answer the query. As a result, a disciplinary panel was constituted and he was invited to appear before the panel without informing him that the proceeding was with a view to dismissing him. He was found culpable and eventually dismissed. His action was sustained on the ground that he was not informed in writing of the ground on which it was proposed to discipline him. The Claimant’s employment in the instant case was terminated on the ground that she was absent from duty without leave and under Rule 030413 it is an offence which attracts summary dismissal. Under Rule 030413 the onus to prove that the punishment is excessive is on the Claimant, which she has not discharged in this case. The 4th Defendant instead of summary dismissal gave her a lesser punishment of termination. In addition, it must be noted that an employer has the power to second, de-second and re-deploy an employee depending on the exigencies of its business. See Alhaji Hamza Dalhatu v. Attorney General, Katsina State & 3Ors. [2007] LPELR-8460[CA] 40 and Rev. Dr. Irimiya T. Taduggoronno & Anor. v. Rev. Dr. Musa Gotom & 4Ors. [2002] 4 NWLR [pt.757] 453 at 491. The exercise of this power by the employer, in my view, cannot be a ground for a legal action. So, the fact that the 4th Defendant seconded the Claimant to Mater Misericordiae Hospital cannot give rise to a legal action or imply that the 4th Defendant discriminated against her.