IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDING AT ABUJA
BEFORE HIS LORDSHIP: HON JUSTICE O. O. OYEWUMI
Dated: 22nd October, 2020.
Suit No: NICN/LKJ/05/2014
BETWEEN
MRS R.U. ELUKPO ---- CLAIMANT
AND
1. THE FEDERAL MEDICAL CENTRE LOKOJA
2. THE FEDERAL MINISTRY OF HEALTH
3. HON. MINISTER OF HEALTH
4. M. D ABUBAKAR
5. DR. D GBADEBO ELESHIN
6. EMMANUEL A OSAYI ------- DEFENDANTS
7. DR OLATUNDE O. ALABI
8. GABRIEL ONILE
9. CHARLES NZURUMIKE
10. ATTORNEY GENERAL OF THE FEDERATION
11. BOARD OF MANAGEMENT, FEDERAL MEDICAL CENTRE,
LOKOJA
REPRESENTATIONS:
Chief J.A. N Elukpo Ph.D with him Austin Obori for the Claimant
A. Zakari Esq for the 2nd – 3rd Defendants
Onoja U. O Esq with A.G Haruna (Miss), C.P Ocheja, S.C.A Mejabi for the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th defendants
JUDGMENT
1. By a General form of complaint dated 10th of June, 2014 which was further amended on the 9th November, 2015 the claimant claims against the defendants as follows :
1. A Declaration that the employment, promotion, discipline, termination, dismissal, etc. of the claimant was regulated by statute and has statutory flavour.
2. A Declaration that the dismissal of the Claimant whose appointment is with statutory flavour by the defendants, is null and void ab initio, and of no effect whatsoever and howsoever.
3. A Declaration that the claimant is still a staff of Federal Medical Centre, Lokoja, holding the post of Chief Nursing Officer in charge of family planning/Ante-natal clinic, and is entitled to be paid all her salaries and entitlements with effect from 17th April 2014, by virtue of her employment.
4. A Declaration that the effective date of employment of the claimant is 16/9/1987, having resigned her temporary appointment dated 2/6/1983, and went for further studies on her own without pay, and was offered a fresh temporary appointment on 16/9/1987, when she returned from her further studies.
5. A Declaration that the dismissal of the clamant without any reason and without hearing from her, and simply that her services are no longer required, is high handedness, lawlessness, illegal, unlawful, unreasonable, unwarranted, unconstitutional, null and void ab initio.
6. An ORDER for reinstatement of the claimant to her original position as chief nursing officer in charge of family/Antenatal Unit, and payment of all her salaries in arrears, allowances, emoluments and full benefits, including promotions, with effect from 17th April, 2014.
7. A MANDATORY ORDER of this Honourable Court directing the immediate reinstatement of the claimant by the defendants and payment to the claimant of all amounts standing due to her as salaries, allowances, leave allowances all entitlements, appointments and promotions, when the claimant was purportedly dismissed, with effect from 17th April, 2014 to the date of her reinstatement.
8. A DECLARATION that the mini management/Top management committee of Federal Medical Centre, Lokoja is not a Disciplinary Committee and not a criminal Court, that the claimant did not collect the sum of N400 (Four Hundred Naira) or any money from anybody as alleged by FMC Lokoja as investigated and founded by ICPC in the letter dated 3/8/2015 and any decision taken in respect of the claimant is null and void ab initio.
9. A DECLARATION that the Board of Management of the Federal Medical Centre, Lokoja, is not an employer of labour and not employer of the claimant and cannot dismiss the claimant is null and void ab initio.
10. A DECLARATION that Federal Medical Centre, Lokoja, has not got a Board constituted in accordance with the guiding rules, and as such, Federal Medical Centre Lokoja, has no Board and the one currently headed by M.D Abubakar (4th defendant) is illegal, null and void ab initio, and the 2nd and 3rd defendants should constitute a new Board for the Federal medical Centre Lokoja as required by its operational rules.
11. AN ORDER that all the allowances, benefits in whatever form or name called and collected by the members of the so called Board of management headed by the 4th defendant be refunded back to the accounts of the Federal Government of Nigeria.
2. It is the claimant’s case that she started her Nursing career on 2nd June 1983 in Benue State but later resigned her appointment to further her studies and upon completion she was offered a fresh appointment dated 16th September, 1987 and deployed to Kogi State General Hospital Lokoja, she was absorbed by the Federal Medical Centre, Lokoja under the Federal Civil Service Commission which is governed by the Public Service Rules 2006 on 1st August 2000. She stated that the conditions of service in the letter of absorption lacks origin and not in compliance with the Public Service Rules and does not govern officers on level 07 and above. That she got her promotion as at when due at various levels and her appointments were confirmed by a letter dated 24th November, 1994. That she never had any warning, either verbal or written. That she was on a pensionable appointment date 28th November, 1994. She continued that the 9th defendant issued an internal memo dated 27th/01/2014 for a meeting of the Matrons, Head of Maternity ward, family planning/Antenatal unit (post-natal ward, Gynecology ward, on the mandate of the 7th and 8th defendants asking them to raise funds through patients to have a common purse to run units as imprest, that both the 8th and 9th defendants are facing medical and dental practitioners disciplinary tribunal in Abuja and need money for legal expenses, and part of the money would be used for the end of year party. She stated that the four matrons informed him that they would get back to him and on further meeting with the Head of Nursing Services; the proposal of the 9th defendant was rejected. That the 9th defendant met her personally and persuaded her but she rejected then he got angry and threatened to deal with her. She further stated that on 10/3/2014, the 9th defendant brought 2 women known as Mrs Biodun Bosah and Mrs Oguagu Chioma (both now at large) for treatment and afterwards led them to the office of the 5th defendant alleging that they paid N400 (Four Hundred naira) only each to the claimant. That the 5th defendant constituted a meeting in his office and she was summoned on the alleged receipt of N400. She averred that the 7th defendant on the 10th of March, 2014 issued a letter to her to explain within 48hrs the allegation against her. That on the 12/3/2014 an invitation letter was sent to her to attend an emergency meeting of the top management committee on the 14/3/2014 but that upon reaching the meeting she met the Board Management of Federal Medical Centre and discovered that she was to face a disciplinary panel which was not stated in the letter dated 12/3/2014. She averred that without been found guilty she was posted out of her unit on the 17/3/2014. It is her pleading that she applied for four (4) days casual leave on 10/4/2014 through the Head of Nursing services from 14/4/2014 to 17/4/2014 to attend a burial which was approved. That while still within the leave period, she received a text message from one Famolu S.B.D on 16/4/2014 that she is to appear before the Appointment, promotion and Disciplinary Committee of the Board of Management by 8am that same day and she replied that she was in Abuja for an emergency and can’t make it. That upon resumption on the 17th of April, 2014 she received her letter of dismissal without affording her the constitutional right to fair hearing in contravention to the Public Service Rules. It is her statement that the actions of the Board Management of Federal Medical Centre and Appointment, promotion and Disciplinary Committee Lokoja are illegal, null and void. That the Federal Ministry of Labour and Productivity Lokoja in a letter dated 20th June, 2014 advised the Board Management of Federal Medical Centre, Lokoja to reverse the dismissal but they refused to do so.
3. The 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th defendants on the 5/12/2014 filed their statement of defence. On the 1/03/2016 they filed an amended statement of defence. They averred that the claimant was a staff of 1st defendant until she was dismissed sometime in 2014. That the claimant became a staff of the 1st defendant by virtue of letter of absorption dated 1/08/2000 and all the terms governing her employment with 1st defendant are therein contained and that the claimant’s appointment was never confirmed. That in March, 2014 two women reported the claimant that they were both charged N400 each and were never given any receipt. That when the claimant was summoned based on the allegation, she admitted that the Depoprovera she gave them were the ones she bought with her money since the ones supplied by the Federal Government free were exhausted. Defendants averred that she had no right to sell drugs in the 1st defendant premises and was ordered to refund the N800.00 she collected and was queried by the Management. That she was summoned to the full management meeting on the 10th March 2014, but she refused to talk when she appeared demanding that her lawyer must be present. They pleaded that she was posted out of the obstetrics and Gynecology department. It is their averment that she never obtained any casual leave from the 5th defendant as the approval of causal leave, must be recommended to the Head of Clinical Services who will then recommend to the Medical Director through the head of Nursing. Defendants continued that when she was asked to appear before the committee, she refused to appear and absconded from duty. That the claim of whether or not the Board of Management of the 1st defendant is properly constituted is not a matter the Court is vested with powers to entertain as the Defendants Board of Management was properly constituted. That there is no cause of action against the 4th to 9th defendants.
4. Similarly, 2nd and 3rd defendants on the 8/12/2014 filed their statement of defence and amended same on the 13/6/19. They pleaded that the claimant became a staff of the 1st defendant by virtue of a letter of absorption dated 1/8/2000. That all the terms governing her employment are contained in the letter and she was not given any confirmation letter in line with paragraph 3 of her letter of absorption. They pleaded that sometimes in 2014 two women reported the claimant to the 1st defendant for charging the sum of N400.00 each and refusal to issue them receipts, that the Depoprovera she gave them were the ones she bought with her money as the ones supplied by the Federal Government free had finished. That the Management of the 1st defendant queried her but the claimant denied the said allegation in her reply to the query contrary to what she admitted earlier before the management. The defendants stated further that the claimant was summoned to the full management meeting to give an explanation but she refused to talk when she appeared before the Management demanding that her lawyer must be present for her to talk, that the claimant was given ample opportunity by such invitation but she discarded it. That her casual leave was not approved by the 1st defendant. That a disciplinary committee was setup but she absconded from duty and refused to appear before the committee upon invitation. That the 1st defendant Board of Management was properly constituted and had been effective. That the defendants by the nature of the claimant’s employment was rightly dismissed by the 1st Defendant or its Management as it was not clothed with statutory flavour or protection as alleged by the claimant but is subject to the Board of Management of the 1st Defendant. That in relation to the right of the 1st defendant to discipline or dismiss its staff, the 2nd and 3rd defendants have no role prescribed by law to play in the process. That she was afforded fair hearing but she failed to show up to defend the said allegation against her. That at one of the 1st defendant’s meetings in April, 2014 the Board of Management resolved to dismiss the claimant.
5. The 10th defendant on the 10/3/2016 filed its statement of defence and pleaded that as the Chief Law officer of the Federation his duties does not include supervision of the Federal Government and its agencies. That a panel was set up by the Management of the 1st defendant in respect of the alleged act of misappropriation to which she attended. That she was posted out of the obstetrics and gynecology department and she failed to show up to work for number of days without approval. Defendant pleaded that she was afforded a fair hearing but failed to utilize same and by her letter of absorption she was employed by the 1st defendant and not by the Federal Civil Service Commission and hence her employment is not clothed with statutory flavour. That it has no role to play in dismissal of the claimant. That it was wrongly joined in this suit as there is no cause of action made against it.
6. During the cause of trial, the claimant testified for herself as CW, she adopted her written statement on Oath dated 1st of April, 2019 and equally tendered documents which were admitted and marked as Exhibit R – R32. She was also cross-examined by the defendant. The defendants called two witnesses, one Egamana Victor testified as DWI. He adopted his written statement on 1/03/2016 as his evidence in this case and was cross examined by the claimant. Also one Dr. Olatunde O. Alabi testified as DW2. He adopted his written statement on 1/03/2016 as his evidence in this case and tendered documents which were admitted and marked as Exhibits A-A4. He was equally cross-examined by the claimant.
7. In observance of the rules of this Court, 1st, 4 - 9th and 11th defendants jointly filed their final written address dated 8/05/2020 wherein counsel on its behalf formulated two (2) issues for determination thus:
i) Whether the claimant who spurned the management of 1st defendant and the 11th defendant can be said to have been denied fair hearing
ii) Whether the claimant has led any credible evidence to prove her case to entitle her to any of the reliefs sought.
8. On issue one, learned counsel submitted that sequel to the allegation for which the claimant admitted to but later denied same upon receiving query she was invited to a disciplinary committee where she frustrated the meeting by refusing to speak. He stated that she was later requested to appear before a committee where she refused to attend on the grounds that she was on leave. Counsel posited that she was given ample opportunity to present her case but failed to so do and hence cannot complain that she was given fair hearing within the confines of the law. He cited the cases of Adebayo v T.S.G. (NIG) LTD [2011] 4 NWLR (Pt 1238) 493, Okike v L.P.D.C. [2015] 15 NWLR (pt 949) 471. Counsel therefore urged the Court to so hold.
9. On issue two, learned Counsel submitted that the burden of proof rests squarely on the claimant who claims her dismissal was unlawful, cited in support is the case of Oloruntoba-Oju & 4 ors v. Abdul-Rahman & 3 ors [2009] 6 SCNJ1 @ 39.
10. Learned counsel stated that going by the evidence before the Court which the claimant admitted working as a nursing officer in the 1st Defendant but also denied being an employee of the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th Defendants under cross examination but an employee of the 2nd Defendant, which shows she is misconceived who her employer was.
11. Learned counsel also submitted that Exhibit R2 which is the letter of absorption is the contractual document between the claimant and the 11th Defendant as she never received any letter of confirmation which she admitted under cross examination but stated that the Federal Ministry of Health confirmed her by exhibit R5. Counsel argued that a close perusal of exhibits R5 discloses that it predates the letter of absorption. He also argued that the 1st defendant was formerly a Kogi State hospital that was acquired and upgraded to a Federal Medical Centre which is undoubtedly a Federal Government parastatal. It is obvious that the 11th defendant absorbed the claimant on the terms and conditions of the contract of employment exhibit R2 and she remained on probation until her dismissal hence her employment is in the nature of master and servant and not statutory as the mere fact an employer is a creature of a statute does not elevate its employment status into one with statutory flavor. He cited the cases of Alhassan v A.B.U Zaria [2010] AFWLR (Pt 538) 962 @p922 para C-E; PHCN Plc v Offoelo [2013] 4 NWLR (Pt B44); Ojabo v Ministry of Communications [2019] ALL F.W.L.R (Pt 1004) 213 at P. 1237 Para C-D. Counsel contended that the power of the 11th defendant to employ is vested on it by chapter 16 Section 3 Rule 160301 of the Public Service Rules and also that by Rule 160501 the Boards of Parastatals are vested with the power to exercise disciplinary control over officers of the Parastatals in accordance with their respective conditions of service. Counsel continued that the 11th Defendant in accordance to Rule 160502, Section 5, chapter 16 of the Public Service Rules 2008 gave the claimant opportunity to be heard therefore the 11th Defendant cannot be blamed for the claimant’s behaviour for refusing to show up to be heard.
12. Learned counsel argued that two exhibit namely Reviewed Charters for Federal Medical Centers and the statement of account from UBA are in admissible as the review charter document is an unsigned document of no known origin and the statement of account was tendered without compliance with Section 84(2) of the Evidence Act as there is no accompanying certificate. That the fact that these documents have been admitted is not tenable as the Court can expunge from its record an inadmissible wrongly admitted in Court. He cited the case of Nwaogu v Atuma [2013] AFWLR (Pt 669) 1022. Counsel posited that the claimant has not disclosed any cause of action against the 1st, 4th to 9th defendants and she has equally not shown that they played any role leading to the dismissal of her employment. He further posited that the claimant has not substantiated her claim in reliefs 8, 9 and 10 and there is nothing to show that she resigned her appointment after being employed as a midwife in 1983. Counsel urged the Court to dismiss the suit in its entirety.
13. The claimant in response filed her final written address on the 1st of June, 2020 and learned counsel on her behalf formulated seven issues for the consideration of the Court thus;
i) Whether the letter of Absorption was not a nullity? (Exhibit 22)
ii) Whether the claimant was given fair hearing and whether the Board of Management has the power to dismiss her?
iii) Whether the claimant had taken proper permission for causal leave?
iv) Whether the Appointment of the claimant is regulated by statute?
v) Whether the Board of Management was well constituted and the Management are honest?
vi) Whether the claimant had lad evidence on the Exhibits tendered?
vii) Whether the claimant had led credible evidence to prove her case to qualify her for all her reliefs, including other incidental claims as the Honourable Court may deem appropriate.
14. On issue one, learned counsel submitted that when Kogi State was created, the claimant who started her career in nursing from 2/06/1983 was deployed from the General Hospital, Makurdi to General Hospital, Lokoja and General Hospital Lokoja was subsequently converted to Federal medical Centre following an arrangement between Kogi State Government and the Federal Government of Nigeria where some of the staff including the claimant were absorbed into Federal Medical Centre Lokoja by a letter of Absorption dated 1/08/2000. Counsel stated that the claimant was already a permanent and a senior pensionable staff before the name changed to the 1st defendant and furthermore, paragraph 3 of the letter of absorption was not applicable to her. Counsel stated that a letter of probation must have a period spelt out before confirmation provided in section 020301 of the Public Service Rules, claimant was absorbed in the year 2000 and got promotion twice from 2000-2014. Counsel further submitted that the letter of absorption is null and void in totality.
15. On issue two, Counsel submitted that upon her invitation by the top management for a meeting, on getting there she was told that it was a disciplinary committee hence the reason of her silence and due to the fact that the composition was not disciplinary committee, counsel stated that the 7th defendant admitted during cross-examination that the claimant was denied the opportunity of her lawyer. He stated that the claimant was not afforded fair hearing as she was dismissed without reasons by the defendants Management, there was no minutes of meeting of the Board and also that the Board lacks power to dismiss her as Rules 030103 of the Public Service Rules does not grant the 1st defendant the power to remove officers on Grade level 13. It is counsel’s argument that in view of this the purported dismissal of the claimant is illegal and ultravires the powers of the Board. He urged the Court to so hold.
16. On issue three, Counsel submitted that the letter for causal leave was passed to her immediate superior officer in accordance to rule 100214 of the Public Service Rules supra. He posited that the 2nd witness under cross-examination confirmed that the claimant was on casual leave, counsel also noted that the letter of application for the claimant’s casual level was dated 10/04/2014 but was forged to 14/04/2014 to implicate the claimant. That the right thing to do was to have issued the claimant a query when she returned from her causal leave rather than dismissing her. Counsel also submitted that the Defendants failed to show any document that the casual leave must be approved by the Medical Director. That in all it is clear that the claimant took permission for causal leave.
17. Learned counsel argued respecting issue four that the claimant’s appointment on salary CONTISS 13 is regulated by the Public Services Rules which the Federal Medical Centre Lokoja is a product of the statute and regulated by statute. Counsel continued that the claimant was given her letter of permanent pensionable appointment since 28/11/1994 and her subsequent promotions shows that her appointment is statutory and can only be terminated or dismissed by the Federal Civil Service Commission. He cited the case of Federal Medical Centre (FMC) Ido – Ekiti v. Alabi [2012] 2 NWLR (Pt 1285) 411. He urged the Court to so hold.
18. On issue (5), Counsel mentioned some operational guidelines in addition to the Public Service Rules applicable to Federal Medical Centre Lokoja (FMCL) which are:
1) .Revised charters for Federal Medical Centers (Exhibit R14)
Ii) Federal Medical Centre Lokoja Operational Manual (Exhibit R15)
Counsel stated that the above evidence were tendered and marked as Exhibits R14 and R15 and were never objected by the defendants. Counsel further submitted that Exhibit R15 deals with Board Membership of FMCL, Composition of the Board which includes a representative of the State Ministry of Health and Kogi State indigene must be present on the Board. That this was not the case in the claimant’s case and there was equally no letter of invitation to the disciplinary panel and Federal Medical Centers Lokoja is the only Federal Medical Center in Nigeria that failed to key into the Treasury Single Account Policy of Federal Government of Nigeria.
19. Regarding issue six, learned counsel noted that the only Exhibit that had controversy was the letter for casual leave (Exhibit R13) which the defendants altered/forged the date from 10th to 14th of April 2014. That this was admitted by the 2nd defendant and the defendants were put on notice to produce the original at trial but failed to tender same.
20. It is the submission of learned counsel on issue seven that the claimant has been able to show and demonstrated with appropriate authorities that her employment is regulated by statutes and has also proven the “modus operandi” used by the defendants to dismiss the claimant was unlawful and should therefore be quashed, declared as illegal, null and void ab initio and of no effect whatsoever. Counsel also noted that the claimant had been able to prove through, cases and authorities that she is still a staff of Federal Medical Centre Lokoja and was purportedly dismissed without fair hearing as there was no evidence to prove anything against her. Counsel stated that the claimant be reinstated to her original position and be paid all her salaries in arrears, allowances, emoluments and her full benefit, including promotion with effect from 17/04/2014, counsel submitted that the claimant has been able to show that the Board under the chairmanship of one M.D. Abubakar was not well constituted and as such the decision taken depriving her of fair hearing should be declared bull and void.
21. In conclusion learned counsel submitted that the claimant has been able to prove her case against the Management, the Board of Management and the roles played in this matter and therefore urged the Court to resolve the matter in favour of the claimant.
22. In response to the claimant written address, 1st, 4th – 9th and 11th defendants through its counsel filed a reply on point of law dated 09.06.2020 and submitted that in respect of issue one, counsel adopted its argument including all the authorities cited in the final written address and stated further that claimant is bound by her statement of claim and her evidence/pleadings before the Court and nothing more hence the retraction of Exhibit R1 is a nullity, is not the case of the claimant and it is not supported by any evidence. Counsel submitted that documents do not lie as the said letter of Absorption is before the Court therefore the claimant cannot elect which conditions in the said letter are applicable to her.
23. On the claimant’s issue 2, counsel submitted that the claimant was accorded fair hearing before her dismissal as she was invited severally to be heard but she disregarded and spurned all the opportunities. In respect of the claimant’s claim that the Board cannot dismiss her, counsel submitted that the Board that appointed the claimant also possesses the powers to dismiss her as the claimant failed to prove that the Board lacks the power to dismiss her and also that she is bound by the conditions of services as contained in (Exhibit R2)
24. On the claimant’s issue 3, counsel submitted that the claimant did not get any form of approval before absconding from her duty post. He argued that the Head of Nursing Services does not have the powers to approve casual leave for any staff but only the Medical Director is vested with such thus the section of the Public Service Rules (100214) cited by the claimant is misconceived.
25. In reply to claimant’s issue 4, learned counsel also adopted their submissions at page 10-12 of their written address particularly the case of Alhassan v. A.B.U Zaria [2010] ALL FWLR (Pt. 538) p. 962 @ P. 922 paras C-E, Counsel posited that the claimant’s employment is not with statutory flavour as same was not governed by any statute; as they failed to show the Court the statute regulating her employment.
26. In response to issue 5, Counsel submitted that the Board of Management constitutes at the pleasure of the President of the Federal Republic of Nigeria and are answerable only to the President who appoints them, Counsel stated that the claimant went on a frolic of her own by stating that the Board was not properly constituted because if does not include the representative of the State Ministry of Health, counsel submitted that the above allegations are baseless and pointless and having no bearing or nexus whatsoever with case of the claimant.
27. On the claimant’s issue 6, Counsel urge the Court to discountenance the submissions therein as same does not qualify as an address but an attempt to vent fruitless anger against the Defendants’ counsel who is carrying out his professional duties, as documents speaks for itself and oral evidence does not and cannot vary the content of a document. He cited the case of Ezeonwu Ositai v. Nanka Micro-Finance Bank Ltd [2018] ALL FWLR (Pt 946) P. 1078 at P. 1102, para A. Counsel also stated that allegation of forgery raised by the claimant is baseless and of no moment as it does not form part of the case of the claimant both in her pleadings and evidence as the allegation of crime standard of proof is beyond reasonable doubt. He cited the case of Zaccala v. Edosa [2018] ALL FWLR (pt. 926) P 1. In conclusion Counsel urged the Court to dismiss the case of the claimant.
28. I have given a careful consideration to the processes filed by the parties and the supporting documents, as well as the arguments of learned counsel in support of their diverse positions, it is my humble view that the issue that will best resolve this case is:
Whether or not the claimant has proven her case to be entitled to the reliefs sought?
29. It is most desirable for me to address at this stage pertinent issues raised by both learned counsel before proceeding to the main crux of this suit. It is notable that the 2nd, 3rd and 10th defendants in this suit failed and or neglected to defend the suit against them by the claimants save for the filing of their respective pleadings and nothing more. The question that needs to be answered is, what is the effect of the acts of the 2nd , 3rd and 10th defendants for failing to defend this suit, can they by any guise complain of lack of fair hearing in this instant? The 10th defendant who is the Attorney General of the Federation and the Chief law officer of the Federation in his pleadings averred that he was wrongly joined in this suit and sought for his name to struck out. In the case of Elelu Habeeb v. N.J.C [2012] LPELR-15515 (SC), the Supreme Court considered the propriety of joining the Attorney General of the Federation as a party to the suit against the National Judicial Council which is also a creation of the Constitution. The Court Per Adekeye, J.S.C (Pp. 104-105, paras. B-A) held as follows:” Section 150(1) stipulates that there shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the government of the federation. It has been firmly decided in many decided cases of this Court that the Federal Attorney-General is the Chief Law Officer of the Federation; he is the custodian and protector of the Constitution. He is competent to be sued in any suit against the Federal Government or any of its agencies. Any case involving the (1) interpretation of the Constitution as it affects our democratic system of governance. (2) The doctrine of separation of powers entrenched in our Constitution, or any suit which poses a threat to the independence of any arm of government, the Attorney-General of the Federation must be an inevitable party. AG Kano State v. AG Federation [2007] 6 NWLR (pt.1029) pg.164; AG Rivers State v. AG Akwa Ibom State [2011] 8 NWLR (pt.1248)." It is without par adventure that the 1st defendant is a Federal Government Agency and for the issues to be effectively, effectually and completely determined the Attorney General as the Chief Law Officer of the Federation must as of necessity be joined to the suit to be bound by judgment of the Court. He is therefore a proper and necessary party to the suit. See the cases of Uwazuruike & Ors v. The Attorney General of the Federation [2013] LPELR 20392 (SC) AT 24 (F-G); Richmond Open University & Ors v. NUC & ors [2018] LPELR 46060 CA. It is obvious that the 10th defendant is a necessary party and rightly joined in this instant case. It is in this light that I discountenance the averment of the 10th defendant in this regard. I so hold.
30. Now with respect to failure of the 2nd, 3rd and 10th defendants to defend their suit having been given ample opportunities to defend this case. Niki Tobi, J.S.C., in Newswatch Communications Ltd v. Attah (2006) 4 SCNJ 282 at 299-300; (2006) 12 NWLR (Pt.993) 144 at 170-171, took time out to make an in depth pronouncement on the principle of fair hearing. "The constitutional principle of fair hearing is for both parties in the Litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, ii/ the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice. It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing…”
31. In Darma v. Eco Bank Plc [2017] LPELR-41663(SC), the apex Court Per NWEZE, J.S.C. again reiterated its position on the attitude of Court to failure or refusal of a defendant to defend a case as in this present thus- “This rule also applies to the litigants themselves. Hence, once afforded a reasonable opportunity of being heard, if a party, without a satisfactory explanation, fails or neglects to attend the sitting of the Court, he cannot, thereafter, be heard to complain of lack of hearing”
32. The question is, is it fair and just to the other party or parties, as well as the Court that a recalcitrant defaulting party should hold the Court and the other parties to ransom. Should the Court allow its business to be dictated by the whims and caprices of any party who fails to attend to their case? It is obvious on record that the 2nd, 3rd and 10th defendants by their own accord and deliberate act in this case failed to avail themselves of the opportunity to defend the suit against them, inspite of several hearing notices issued and served on them. They will be bound by the decision of this Court and are estopped from complaining that they were not given fair hearing or ample opportunity to defend their case but chose to stay away without any just cause. I so hold.
33. What then is the effect of their failure of the 2nd, 3rd and 10th defendants to challenge or defend their case? The law is clear that where evidence given by a party to any proceedings or by his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it. See the apex Court case of Asafa Foods Factory v. Alraine (Nig.) Ltd. (2002) NWLR 12 (Pt.781)353; Nyior v. Akase [2019] LPELR-47627CA. The law is trite also that where a party offers no evidence as in this instance against the claimant’s case, the burden placed on the claimant is minimal as argued by the learned claimant’s counsel, since there is no evidence challenging the case of the claimant. The claimant is then at liberty to use the unchallenged evidence to establish his case. The failure on the part of the 2nd, 3rd and 10th defendants to lead evidence in substantiation of their defence does not in itself or automatically entitle the claimant to judgment. The effect is only to minimize the onus on the claimant to prove her case. See the case of St. Machiavelli College v. Ogunsan [2010] LPELR-4919(CA). In effect, the claimant in this suit must prove her case to be entitled to her claims. I so hold.
34. It is Learned counsel for the 1st, 4th to 9th and 11th defendants that two exhibits namely Reviewed Charters for Federal Medical Centers and the statement of account from UBA are inadmissible as the review charter document is an unsigned document of no known origin and the statement of account was tendered without compliance with Section 84(2) of the Evidence Act as there is no accompanying certificate. He argued that the fact that these documents have been admitted is not tenable as the Court can expunge from its record an inadmissible and wrongly admitted documents in Court.
35. From a cursory look at the documents tendered in Court, the claimant in this suit tendered Exhibits R14 and R20 which are the Reviewed Charter for Federal Medical Centres and UBA Statement of Account of the claimant. An examination of these documents reveal that exhibits R14 is undated and unsigned and exhibit R20 is without a compliance certificate as required by Section 84 of the Evidence Act, 2011. The law is trite that an unsigned document is worthless. Also exhibit R20 is inadmissible for falling short of the requirement of section 84(2) of the Evidence Act Supra. It is clear that both documents are inadmissible before this Court. But assuming without conceding that they are admissible are these documents relevant? It is settled law that relevancy is the precursor to admissibility and for a document to pass the test of admissibility must first of all be relevant in all intent and purposes to the facts in issue. See the cases of Olojede & Anor v Olaleye & Anor [2012] LPELR 9845 CA; Oyebode & Anor v Gabriel &Ors [2011] LPELR 8693 CA. By Okunrinjeje Anor v. Ajikobi [2018] LPELR-44850CA, the fact that a document is certified and admissible does not also mean that it will automatically attract weight, or sufficient weight, to prove whatever it was tendered to support. I find from a careful examination of these documents that they have no relevance with the suit as the claimant’s case centers on whether or not the dismissal of the claimant’s employment is unlawful. There is no nexus between the documents and this instant case. The documents are in no wise establishing that fact and would not in any way occasion grave injustice on the part of the claimant if no weight is attach to them. It is in this light that I find that the Court cannot therefore attach any weight to both documents. The consequence of this is that where the Court wrongly admits a document in the course of trial, it is the duty of the judex at the stage of writing a judgment to expunge such a document/s from its record. The Court has the power to expunge the inadmissible evidence. See the cases of Nigeria Bank for Commerce and Industry v. Ogbemi & Anor, Suit No: CA/J/93/2006, a judgment delivered on 25th May, 2012. Hashidu & anor v Goje & Ors [2003] LPELR 10310 CA; Metalimplex v A.G Leventis& Co ltd [1976] 2 SC 91. In the case of Agbaje v Adigun [1993] 1 NWLR (Pt. 269) 261, the Apex Court held that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact. See also the case of Inyang v Eshiet [1990] 5 NWLR (Pt. 149) 178. Applying this authority to this instant, the Court having held that Exhibits R14 and R20 are in admissible in evidence and were wrongly admitted in evidence, they are consequently expunged from the record of the Court for lacking in weight. I so hold.
36. Now, to the main issue, it is claimant’s claim that her employment, promotion and discipline is regulated by statute and has statutory flavour. Parties are in agreement that the 1st defendant was formerly a Kogi State hospital that was acquired and upgraded to a Federal Medical Centre which is undoubtedly a Federal Government parastatal. The point of divergence here is that to the claimant her employment is clothed with statutory flavour and thus her dismissal is unlawful. The claimant has stated she started her nursing career by a letter dated 2/6/1983 with the Benue State Health Management Board Makurdi and resigned to further her studies. That she was offered a fresh appointment on the 16/9/1987 by the Federal Ministry of Health and was deployed to Kogi State General Hospital Lokoja, from where she was later absorbed by the Federal Medical Centre on the 1/8/2000. She averred further that her employment was confirmed on the 24/11/1994 and on the 28/11/1994 she was offered a letter of Permanent Pensionable appointment with effect from 16th September 1987. The defendant on the other hand contended that the 11th defendant absorbed the claimant on the terms and conditions of the contract of employment in exhibit R2 and she remained on probation until her dismissal hence her employment is in the nature of master and servant and not statutory as the mere fact that an employer is a creature of a statute does not elevate its employment status into one with statutory flavour. It is pertinent to establish what an employment with statutory flavor, it is where an employment is provided for and regulated by the provisions of a law or statute or regulation made thereunder as in this instant that is said to enjoy statutory flavor, the employer and employee are also bound by the terms and conditions stipulated in the provisions of the law or statute that govern and regulate the employment. See the case of New Nigeria Newspapers Limited V Mr. Felix Atoyebi [2013] LPELR 21489. A breach, violation or noncompliance with the provisions thereof would be unlawful because it is against the law or statute that governs and regulate the employment. The claim in such cases would be for unlawful termination of the employment since the termination would be contrary to, in violation of and against the provisions of the law or statute. Such termination would be declared unlawful, void and of no legal consequence in law, where the breach, violation and non-compliance is proved. Reinstatement of an employee, in appropriate cases, could be ordered by a Court in such situations. See Olaniyan v. Lagos University [1985] 2NWLR (PT 9)599SC; Eperokun v. University of Lagos (1986) 4 NWLR (1934) 162, UNTHMB v s. Nnoli (1994) 8 NWLR (363, 176. lderima v. R.S.C.S.C [2005] 16 NWLR (PT.951)378(SC). Now is the claimant’s employment regulated by statute? By a painstaking perusal of the documents on record, there is evidence that the claimant by Exhibit R1 dated 16/09/1987 was offered a Temporary appointment as a Staff Nurse/Midwife by the Benue State Health Services Management Board Makurdi. Clause D of her appointment provides that “that you will be subject in all respects to all conditions of service stipulated in Civil Service Rules and Regulations and Instructions pertaining to Temporary Appointment”. That by exhibit R4 dated 24th of November, 1994 her offer of appointment was confirmed by Hospitals Management Board Lokoja with effect from 12/10/1987 and on the 28th November, 1994 exhibit R5 she was offered Permanent Pensionable appointment with respect to her offer of appointment as S/N/SMW with effect from 12/10/ 87 with clause (vii) stating thus “That you will be subject, in all respects, all to conditions of service stipulated in the General Orders and other Board regulations and instruction” and on the 1/8/2000 she was absorbed by the 1st defendant by exhibit R2 wherein clause 3 stated that “The absorption will be on probation subject to the availability of your record of service from your former employer after which your appointment will be confirmed on the advice of the Management Committee.” The defendants alluded to the fact that the PSR is the rules that regulates the appointment of the claimant after they have earlier argued that it was a master servant relationship. They infact referred to Rules 1603 as the disciplinary procedure that was adopted in the discipline of the claimant. The General Orders referred to in her absorption letter is a rule made pursuant to the Public Service Rules. Clause 3.1.2 of the Federal Medical Centre Lokoja, Operational Manual titled “Senior staff appointment, promotion and disciplinary Committee (AP & DC) HATISS 06 and above” equally stated at paragraph B (ii) that the condition of employment, and confirmation as well as discipline of Federal Medical Medical Centre Lokoja staff, is to be in accordance with civil service Rules and regulation, hence the Manual did not make provision for the disciplinary procedure. DW2, who is the current CMD of the 1st defendant specifically stated on oath, when asked “what statute regulates your services” Answered that it is the Public Service Rules, various extent circulars released by the Head of Service and Publication on Administrative procedures and also agreed that the 1st defendant functions under the Act establishing all Federal Medical Centres in Nigeria. He went ahead to state that the procedure for complaint to the 1st defendant is in the PSR. I then wonder while the learned defence counsel would conceive and argued that claimant’s employment is master servant. By UBA PLC v. Salman [2018] LPELR-45698(CA); it is the rule of equity that one cannot approbate and reprobate. The law disallows a party to blow hot and cold or be double minded. A double minded party is not entitle to any benefit from the Court. See Gana v. SDP & Ors [2019] LPLER-47153. It is in consequence that I discountenance the position of the defendants that claimant’s relationship with the 1st defendant is master servant, and find that claimant’s employment is a pensionable one that enjoys a higher status than a mere master and servant relationship as stipulated in her letter of employment as well as the 1st defendant’s Operational manual captured supra. It is therefore the Public Service Rules and Regulation that regulates claimant’s employment and same shall be the yardstick for the determination of whether or not her dismissal is lawful. I so find and hold.
37. Now what is the propriety of exhibit R2, i.e. letter of absorption dated 1st August 2000 on claimant’s appointment? Can the claimant be on probation in perpetuity as the defendants would want the Court to hold? I answer this poser in the negative on the reasoning that first, the letter clearly states that it is a letter of absorption. Absorption is the process of including or incorporating a thing into something else; in labour law it is a post-merger collective agreement, a provision allowing seniority for union members in the resulting entity. See Bryan A Garner, Black’s Law Dictionary Ninth Edition at page 8. Differently put it means to take in from somewhere and it has been established by the parties that 1st defendant was formerly a Kogi State General hospital (where the claimant was deployed to in 1987) that was acquired and upgraded to a Federal Medical Centre this invariably means to me that upon the upgrade of the Kogi State General Hospital to the Federal Medical Centre Lokoja staff of the erstwhile hospital were “absorbed” by the 1st defendant as its employees and not that it is a fresh appointment. It is obvious that claimant’s employment date back to 12th October, 1987. Assuming without conceding that it is a fresh appointment can the claimant be on probation for 14 years that is from year 2000 when she was absorbed till 2014 when her employment was dismissed. By Section 3 Rules 020301 of the Public Service Rules it provides that “Officers on probation will be required to serve for two years before being confirmed in the service. This period may however be reduced to not less than six months by deduction of any previous period of Public Service rendered satisfactorily in post of cognate status involving similar duties. The period of probation shall not exceed two years unless an extension is approved by the Federal Civil Service Commission; such extension may result in the incremental penalty referred to in Rule 040206, if the Commission so decides” It is obvious that officers on probation are required to be confirmed after two years of service and the claimant has served the defendant for fourteen years. It is the law that where a worker continues to work after the probation period, and earned salaries, the contract is deemed to have been concluded on the date in which the probation period began. The Court of appeal in Raji v. O.A.U. [2014] LPELR-22088 CA, held when considering a similar issue relating to probationary period thus- “The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent's probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of "estoppel by conduct" would operate to prevent the appellant, from alleging and treating him as if he was still on probation. "Delay defeats equity.” See also the cases of Ikhuemeso v. Daar Communication Plc [2016] 64 NLLR (Pt 227) 406; Weston v University College Swansea [1975] IRLR 102. I will like to capture the decision of this Court in the case of Engr. Henry Olatujoye v. Hon. Tayo Akinjomo & 2 Ors, unreported Suit No. NICN/IB/09/2012, a Judgment delivered on 5th February 2018. Whilst considering a similar issue, I held thus-
The law is of common that Acquitas factum habet quod fieri oportuit, meaning; Equity regard as done that which ought to have been done. Where a person or body is under an obligation to perform an act, equity looks on it as done. By Dr. Ajewumnmi Raji v. Obafemi Awolowo University [2014] LPELR-22088CA, where the Court of Appeal placing reliance on the case of Obafemi Awolowo University V. Dr. Kola Onabanjo (1991) 5 NWLR (Pt.193) 549. Reasoned that “Clearly, on the authorities no term will be implied in a contract unless there are grounds for doing so, and it is on that basis I approach the submission that the parties have manifested by their conduct that respondent's appointment had been reviewed and renewed and he is now a confirmed officer. I think the principle of estoppel by conduct can rightly be founded upon in this case, having regard to all the facts I have highlighted above." Per OWOADE, J.C.A. (Pp. 50-52, paras. D-C. I have no hesitation in placing reliance on these authorities and find that defendants by conduct have confirmed claimant’s appointment after 6 months probationary period. It does not therefore, lie in the mouth of the defendants to state that claimant’s appointment was not confirmed and so they have no obligation to follow the terms of his contract in determining his contract. They are estopped from making such assertion.
38. Secondly, a scan through of the documents on record shows that the claimant after the absorption into the 1st defendant was promoted twice by the 1st defendant before her dismissal that exhibits R3 dated 15th of December, 2006 and 9th of September, 2009. All these facts go to show that the claimant was not on probation till her employment was dismissed as the defendants will want the Court to believe. This is because an unconfirmed employee cannot be promoted as is the case in the instant case. Her employment was aptly confirmed with effect from 12/10/1989 by exhibit R4 a letter dated 24th of November, 1994 and based on the fact that the effective date of employment of the claimant is 16/9/1987. Claimant I must state unequivocally that she was a confirmed staff of the 1st defendant before the dismissal of her employment. I so resolve.
39. It is the claimant’s claims 2, 5,, 8 and 9 together; that the dismissal of her statutory appointment by the defendants without any reason is unconstitutional, null and void ab initio, and of no effect whatsoever and howsoever; that the management Board of the 1st defendant is not her employer and thus cannot discipline her. The law is certain that for an effective determination of an employment statutorily flavoured which is not in doubt in this present; it must accord strictly or differently put be in consensus/compliance with the law establishing or providing the terms and conditions to which an employee/employer is bound and a breach thereof is considered ultravires the power of the employer and hence void and of no effect. This is predicated upon the principles of Natural justice embedded in the inalienable provisions of Section 36 of the 1999 Constitution as amended and it presupposes that before an employer can validly determine the employment of its employee, it must exhaustively placate or satisfy its requirements by following the procedure duly required in the law regulating the employment of the employee. See the cases of Suru Worldwide Ventures (Nig) Ltd v. Asset Mgt Corporation of (Nig) & Ors [2019] LPELR-47958(CA). Inversely, where a party has been given the necessary opportunity to present his case within the precincts or confines of the law regulating his employment, he/she would be said to have been afforded fair hearing. See the case of Mr. Isa A. Saidu v. Kwara State Polytechnic, Ilorin [2008] LPELR-4524(CA); Daniel v. FRN [2013] LPELR 22148 CA.
40. It is not in contention that the basis of the dismissal of the claimant’s appointment was predicated on the allegation that she collected the sum of N400 Naira each from two women without issuing them receipts which to the defendants constitutes misconduct and hence she was dismissed from their employment. It is trite law that where an employee is alleged of misconduct, the employer must acquaint him/her of the allegation by issuing him a written notice or query stating the grounds of the misconduct/negligence against him, give him a chance to defend himself and invite him to make an appropriate representation or defence thereto; be given an opportunity to cross-examine his accusers if any, be allowed to call any witness/s if any and be afforded copies of documents they intend to use against him/her. See the cases of FMBN & Anor v Owodunni [2018] LPELR 44556CA; Chief J.L.E Duke v Government of Cross-River State & ors [2013] 1 NWLR (Pt. 1356) 347. The basis for claimant’s dismissal is based on an allegation of misconduct and by the Public Service Rules (hereafter called the PSR) 030307 provides for disciplinary procedure leading to dismissal thus;
“030307 unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Public Service may be dismissed by the Federal Civil Service Commission only in accordance with the Rule.
(1) The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point, it must relate the circumstances of the offences, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report (s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to the documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;
(ii) The query or preliminary letter shall be in the format shown in Appendix II;
(iii) If the officer submits his/her representations and the Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission may take such action against the officer as it deems appropriate;
(iv) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
(v) Where necessary, the Commission may setup a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;
(vi) The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;
(vii) Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto
(viii) If during the course of the inquiry, further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds.
(ix) The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witness;
(x) If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;
(xii) If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further proceedings, direct accordingly; and
(xiii) All disciplinary procedure must commence and be completed within a period of 60 days except where it involves criminal cases.”
41. It is deducible from the above Rules that for an officer to be dismissed as in this case, the procedure to be followed before dismissing the claimant’s employment is the issuance of query to the claimant and also affording her an opportunity to make representation in person before the Board set up by the Commission. She shall be entitled to call witnesses and given the right to cross-examine witness/es and no documentary evidence shall be used against her unless she had been supplied with a copy thereof and a report from the Board shall be given to the Commission who shall make recommendations on whether or not the officer shall be dismissed.
42. It is also significant to note that the removal of staff on grade level 13 to (07) in the Public Service is solely vested in the Federal Civil Service Commission and not delegated to the Extra Ministerial department save for officers on Grade level 06 and below. See Rules 030103 of the Public Service Rules. As reiterated, all the above procedure enunciated by the above Statute and Rules are to ensure fair hearing in the disciplinary procedure of its officers. It is the law that where an employment is protected by statute, the process of removal of the officer must as stated supra be in strict compliance with the extant statute governing the employment and a breach of any statutory provision renders the process of such removal void and of no effect. Now did the defendants follow the due procedure as provided by the Public Service Rules? The claimant was issued a query on the 10th March, 2014 exhibit R7 which she responded to on the 12th of March, 2014 exhibit R9 and on the same date she was invited to an emergency meeting of the top Management committee in the Boardroom of the 1st defendant on the 14th of March 2014 exhibit R8 and on the 17th of April, 2014 exhibit R18 she was dismissed. The defendant stated that they invited the claimant for an interview with the 11th defendant but she absconded and refused to appear. This she admitted to when she averred that on the 16/4/2014 a text message was sent to her while she was on causal leave to appear before the 11th defendant on the same day and she could not make it because she was in Abuja. The defendants in response stated that the claimant absconded as she did not get an approval from the Medical Director before she embarked on her causal leave. “By Rules 100214 of the PSR Causal leave is the absence of an officer from duty for a short period not exceeding an aggregate of 5 working days within a leave year as may be authorized by a superior officer. The causal leave shall only be granted after an officer has exhausted his/her annual leave. Casual leave is deductible in advance or arrears of earned leave.” By the foregoing it is clear that a superior officer and not necessarily the Medical Director of the 1st defendant may authorize/approve casual leave for the claimant. The claimant by exhibit R13 applied for causal leave from 14/4/2014 to 17/4/2014 and it was recommended by the Head Nursing on the 15/4/2014 as stated by the claimant under cross- examination and the defendants have not equally placed anything on record to show that the claimant ought to get an approval from the Medical Director before she goes on causal leave. DW1 admitted under cross examination that claimant’s application was addressed to her HOD and the HOD endorsed it. He went on to state that since claimant was on casual leave there was no need to look for her, thus confirming that the management were in the know that the claimant was on casual leave. To me, the approval of the Head Nurse is enough approval for causal leave as it conforms to Rules 100214 of the PSR.
43. What is the propriety of the purported text message sent to the claimant? It is on record that while the claimant was on a lawful leave of about three days that is from 14/4/2014 to 17/4/2014 she received a text message from one Famolu S.B.D on 16/4/2014 that she is to appear before the Appointment, promotion and Disciplinary Committee of the Board of Management by 8am that same day. It is pertinent to ask is a text message the requisite method of communication in the Public Service or an establishment of the 1st defendant. I answer in the negative as it is judicially noticed that the mode of communication in the Public and Civil Service includes Memos, Circulars and Correspondents and not via text messages. That is not known in law as a means of communication within the Civil Service or any Government agency or department. There is nothing to show that the purported text message inviting her to appear before the Disciplinary Committee informed her of the content and what she was to face before the Disciplinary Committee and the documents used in alleging the purported offence against her was not made accessible to her. The claimant was not away without leave (AWOL) she was on a lawful casual leave to the knowledge of her superior officer in office as required by the PSR. The act of sending her a text message is in contravention of the provisions of Rules 030307 of the PSR. It is also apparent from the facts and circumstances of this case that the defendants did not even follow the procedure for the dismissal of the claimant as the matter was not reported to the Federal Civil Service Commission as it is vested with sole power to dismiss an officer in the Public Service, there is nothing to show that there was a Board Committee setup by the Federal Civil Service Commission to investigate on the alleged infraction of the claimant and there is no report thereto from the Board to the Federal Civil Service Commission. There is equally no report of the purported Board of Management who according to the 1st defendant has the power to discipline her before the Court. No single evidence before the Court to evince that the 1st defendant followed any procedure to consider her case before a dismissal letter was issued to her, dismissing her from the 1st defendant. There is equally no evidence to show that the purported complainants the two women wrote a formal complaint against the claimant. DW1 who is the Servicom desk officer at the 1st defendant and receives complaints stated under oath that he never received any complaint from the said women. There is also no evidence on record to show that the two women were present when they invited the claimant the same day she was given a query or was given opportunity to confront them. By the case law authority of Mr. Isa A Saibu v. Kwara State Polytechnic supra; “to satisfy the principles of natural justice and fair hearing, a person likely to be affected directly by a disciplinary proceeding must therefore be given adequate notice of the allegation against him to enable him make representation in his own defence. For, as Nnamaeka-Agu, JSC said in Kotoye V CBN (1989) 1 NWLR (Pt. 419) @ 448: "For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding, had in fact been given an opportunity of a hearing. Once an Appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.” It is plain from the circumstances of this case that the defendants were so much in a hurry to put away the claimant from its employment, they thus fragrantly and brazenly breached the provision of the PSR. In fact it is pertinent for me at this stage to capture the purport of the law regarding statutory employment by quoting the excellent and apt reasoning of Mbaba JCA in Egasi v. SEMB & Ors [2014] LPELR-24101. His lordship held that an employee with statutory flavour “…insured with statutory flavour, and so the dismissal or termination of the employment could not be at the whims and caprices of any mischievous, disgruntled officer of government or panel without due compliance with the laws/rules regulating his condition of service”. It is well settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required before such disciplinary action can be properly based or justified. That is the position of the apex Court in Iderima v. RSCSC, Supra. And any other manner inconsistent therewith is null and void and of no effect. See the cases of Eze v N.A.M.A [2016] LPELR-41453 CA; Bamgboye v University of Ilorin [1999] 10 NWLR (PT.622) 290. See also by Akinola Arobieke v. National Electricity Liability Management Company [2017] LPELR-43461(SC); Epenetu v Ofegobi & ors [2012] LPELR 9229 CA. It is based on the foregoing that I find that the dismissal of the claimant on the 17th of April, 2014 without compliance with the Public Service Rules ditto the Operational manual of the 1st defendant is unlawful. I according resolve these reliefs in favour of the claimant.
44. The claimant by her reliefs 3, 6 and 7 taking together is claiming that she is still a staff of Federal Medical Centre, Lokoja, holding the post of Chief Nursing Officer incharge of family planning/Ante-natal clinic and that she is entitled to be reinstated to her original position as Chief Nursing Officer in charge of family/Antenatal Unit, and is entitled to be paid all amounts standing due to her as salaries, allowances, leave allowances all entitlements, appointments and promotions, when she was unlawfully dismissed, with effect from 17th April, 2014 to the date of her reinstatement.
45. It is a basic principle of law as same is sacrosanct and without reproach in an employment with statutory flavor as in this instant, that once a dismissal or termination of an appointment of an employee is declared by a Court of competent jurisdiction to be null and void, the parties are back to the status quo. Thus, the said dismissed employee or whose employment is dismissed must automatically be reinstated. See the age long but evergreen case of Olaniyan v. University of Lagos supra; Bassey v A.G Akwa Ibom & ors [2016] LPELR-41244(CA) Kwara State Civil Service Commission v. Abiodun [2009] (Pt. 493) 1315 @ 1346 paragraphs F - G; FMC Ido-Ekiti v. Olajide [2011] ALL FWLR (Pt. 593) 1944 @ paragraphs C-G. Put in another way, Reinstatement impliedly confers on the claimant a right to be placed de facto in his original position before he was unlawfully dismissed. Reinstatement involves putting the specified person back in law and in fact in the same position as he occupied in the undertaking before the employer terminated his employment. See also the cases of William Dixon Ltd. v. Patterson [1943] S.C. (J) 78 per Lord Copper at 85); Shitta-Bey v. Federal Public Service Commission [1981] 1 S.C. (REPRINT) 26; [1981] LPELR 3056. It is consequent upon my finding supra that claimant was unlawfully dismissed from the 1st defendant, that I also find and hold that the claimant is still a staff of Federal Medical Centre, Lokoja, holding the post of Chief Nursing Officer incharge of family planning/Ante-natal clinic and that she is entitled to be reinstated to that position. Consequent upon which I equally hold that claimant is entitled to be paid all amounts standing due to her as salaries, allowances, leave allowances all entitlements from the date she was unlawfully dismissed, id est the 17th April, 2014 to the date of her reinstatement. I so hold.
46. Claimant claims by reliefs 4 that the effective date of her employment is 16/9/1987. I have held earlier that the claimant’s employment is statutory having been confirmed with effect from 12/10/1989 exhibit R4 and based on the fact that the effective date of employment of the claimant is 16/9/1987. In effect claimant’s effective date for employment is 16/9/1987. I so find and hold.
47. She also claims vide reliefs 10 and 11 that the 1st defendant has not got a Board constituted in accordance with the guiding rules, and as such, Federal Medical Centre Lokoja, has no Board and the one currently headed by M.D Abubakar (4th defendant) is illegal, null and void ab initio, and the 2nd and 3rd defendants should constitute a new Board for the Federal medical Centre Lokoja as required by its operational rules and that all the allowances, benefits in whatever form or name called, collected by the members of the so called Board of Management headed by the 4th defendant be refunded back to the accounts of the Federal Government of Nigeria. The law is that he who assert must prove the existence of the fact he would want the Court to believe. See the case of Onah v Okenwa & ors [2010] LPELR 4781 CA. She has not shown to the Court that the members of the Federal Medical Centre Lokoja Board as she alleged is not constituted in accordance with the guiding rules. The Operational manual exhibit R15 at page 7 reveals that the Board of Management is headed by the Chairman Board of Management, the Medical Director that is the 4th defendant. HOD Clinical services, Representative of Public interest, Representative of NMA, Reps of other Health Professionals; Reps of Federal Ministry of Health, Reps of State Ministry of Health; and HOD Administration. The claimant failed to produce any evidence before me stating the contrary. Also there is nothing evincing before the Court that the 11th defendant collected allowances, benefits illegally and ought to be refunded back to the accounts of the Federal Government of Nigeria. It is in this light that I find that claimant’s claims 10 and 11 fail. I so hold.
48. On the whole, the claimant’s claim succeeds in the most part. For the avoidance of doubt, I hereby declare and order as follows-
1. That the claimant’s employment, promotion, discipline, termination, dismissal, is regulated by statute, i.e. the Public service rules.
2. That the dismissal of claimant’s employment vide a letter dated 17th April, 2014 is unlawful and thus set aside.
3. That the claimant is still a staff of Federal Medical Centre, Lokoja, holding the Post of Chief Nursing Officer incharge of family planning/Ante-natal clinic.
4. That she is entitled to be reinstated to her original position as Chief Nursing Officer in charge of family/Antenatal Unit forthwith.
5. That she is entitled to be paid all amounts standing due to her as salaries, allowances, leave allowances and all entitlements from the 17th April, 2014 till the date of her reinstatement.
6. She is to be allowed to participate in promotion exercise.
7. That the effective date of employment of the claimant is 16/9/1987.
8. That claimant’s claims 10 and 11 fail.
49. No order as to cost
50. Judgment is accordingly entered.
Hon. Justice Oyebiola Oyejoju Oyewumi
Presiding Judge