Mrs. C.O.A. Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board

At the Ilesha High Court the plaintiff claimed against the defendant:-

“(a) A declaration that the purported termination of the plaintiff’s appointment in the service of the defendant as contained in the letter of termination of appointment is null, void and of no effect whatsoever and that the plaintiff is still a Nursing sister in the defendant’s service.

(b) An order of mandatory injunction restraining the defendant, his servants and or agents privies or otherwise from preventing the plaintiff from performing any of the functions and duties of her offices or interfering with the enjoyment or rights, privileges and benefits attached thereto.

After the filing and exchange of pleadings, the case proceeded for trial. At the trial the plaintiff testified for herself and called one witness. Only one witness testified on behalf of the defendant.

The plaintiff’s case was simply that at all material times she was a Nursing Sister in the employment of the defendant. She was employed in November 1976. Her letter of appointment was tendered as Exhibit H. The appointment was later confirmed in January, 1979 vide Exhibit A. She said in September 1987 she received a

P.2

query from the defendant accusing her of a missing stainless steel bowl. She was asked to say all she knew about the missing bowl. The query and her explanation thereof were respectively tendered in evidence as Exhibits B & C. All of a sudden on 13th November, 1987 she received a letter of termination of her appointment. This was also tendered as Exhibit D. She said she was shocked to have received Exhibit D because she felt she had not committed any offence. She later wrote to the defendant appealing for a reconsideration of her termination. Her appeal was turned down (see Exhibits E. F & G). She said she had spent 10 years and 11 months with the defendant at the time her appointment was terminated. That she was only 41 years old and had expected to retire at the age of 60 years. She said she was the only nurse retrenched at the time by the defendant although she was neither the last nor the most junior nursing staff to be employed by the defendant.

The defendant on the other hand admitted terminating the appointment of the plaintiff but said it was not as a result of the query concerning the missing stainless steel bowl, nor for any misconduct on the part of the plaintiff. Rather it was as a result of a retrenchment exercise it found necessary to carry out in 1987 in order to cut down overhead costs. Two hospitals in the group of hospitals under the defendant had to be returned to their original owners for the same reason. That a committee was set up which looked into the records of individual staff and made recommendations to it. About one hundred members of staff were affected by the exercise including the plaintiff. The committee’s report and recommendations were

P.3

tendered in evidence as Exhibits J &.J.1 The Staff Regulations and Conditions of Service of the Ife University Teaching Hospital Complex, lIe-Ife, Nigeria was tendered as Exhibit K.

In a well considered judgment the learned trial Judge Adekola J., dismissed the plaintiff’s claims with N150.00 costs.

Dissatisfied with the judgment of the trial court the plaintiff appealed to the Court of Appeal, Ibadan. The appeal was also dismissed with N300.00 costs.

The plaintiff still not satisfied with the judgment of the Court of Appeal has further appealed to this Court.

Briefs of argument were filed and exchanged by the parties. They were adopted at the hearing and additional oral submissions were also made.

Mr. Ayoola Ajayi learned counsel for the appellant in paragraph 2.06 of page 3 of his brief formulated the issue for determination thus:

“Whether or not the termination of the appellant’E2’80’99s appointment vide the letter of 13/11/87 was valid, legal and proper in all the circumstances of the case.”

This same issue was one of the four issues considered by the High Court in its judgment. On pages 33-34 the learned trial Judge stated:

“The issues which are to be determined by the Court are:-

(i) Was the plaintiff’s appointment terminated as a result of the missing stainless bowl?

(ii) If the answer to question (i) above is in the negative, will it be necessary to follow the disciplinary procedure before the plaintiff’s appointment can be terminated?

(iii) If the answer to question (ii) above is in the negative,

P.4

can it be said that the plaintiff’s appointment has been validly terminated by the defendant?

(iv) If the appointment of the plaintiff has been validly terminated, can the court issue an order of mandatory injunction restraining the defendant from preventing the plaintiff from performing the functions and duties of her offices or interfering with the enjoyment of the rights, privileges and benefits attached thereto?

The learned trial Judge then continued thus:

“In answer to question (i) above, it is the duty of the plaintiff to prove by preponderance of evidence that the defendant terminated her appointment as a result of the missing stainless bowl. This is so because by the letter, Exhibit 0, dated 13/11/87 by which the Plaintiff”s appointment was terminated by the defendant, there was no reason stated therein. An employer is not bound to state any reason why an employee’s appointment is being terminated, but where a reason is stated by the employer why an appointment is being terminated, the burden of proving or establishing that reason will be on the employer or master. One who alleges must prove.

Having regard to the pleadings and the evidence before the court, it cannot be said that the plaintiff has proved that the defendant terminated her appointment as a result of the missing stainless bowl.”

Further on page 36 of the judgment the learned trial Judge said:

“In dealing with point (ii) above, I should say straight away here that once the appointment of the plaintiff has not been terminated on the basis of the missing stainless bowl, there would be no need for the defendant to follow

P.5

the disciplinary procedure before the plaintiff’E2’80’99s appointment can be terminated. Can it be said therefore that the plaintiff’s appointment has been validly terminated? Exhibit K is the Staff Regulations and Conditions of Service which applies to the plaintiff in this case. Chapter II of Exhibit K deals with offers of appointment and termination of appointment. Paragraph 14(a) or section 14(a) deals with determination of employment and provides that an appointment may be resigned or terminated by giving one month’91s notice in writing or payment of one month’s salary in lieu of notice by either side.

It is my view having regard to Exhibit D, that the entitlement of the plaintiff as stated in the said exhibit included a month’s salary in lieu of notice……………………………….

In this particular case where the termination of the appointment of the plaintiff was not based on any misconduct or negligence, the defendant must terminate the plaintiff’s appointment in accordance with the terms laid down in the conditions of service. The conditions of service have stipulated that a month’s notice or a month’s salary in lieu of notice must be given by either side. It is my view that the payment of a month’s salary in lieu of notice as quoted in Exhibit D will be a valid termination of the plaintiff’s appointment.”I agree entirely.

In the Court of Appeal Akpabio, J.C.A. who delivered the lead judgment (and concurred by Kolawole, J.C.A. and Ogwuegbu, J.C.A. (as he then was)) also had no difficulty in identifying the single issue for determination in the appeal when he stated on page 94 of the record that:

P.6

“Based on the totality of the above arguments and all the legal authorities cited by learned counsel on both sides, I shall now proceed to resolve all the issues for determination which I find can be conveniently disposed of under one question as follows:-‘

‘Whether upon all the evidence before the learned trial Judge, he was right in dismissing the appellant’s claim.”

The Court of Appeal thereafter considered the various submissions of counsel and rightly in my view, came to the conclusion that the plaintiff/appellant’s claims were rightly dismissed by the learned trial Judge of the High Court.

I have endeavored to show above that the single issue submitted for determination in this court was not only resolved in the Court of Appeal against the appellant but that the same issue was decided by the trial court against her. There was therefore nothing new in the submissions of appellant’s counsel before us. The submissions can conveniently be summarized as follows:

(a) That as a confirmed member of staff the appellant acquired a special status as a public servant over and above the ordinary master and servant relationship and that her appointment could only have been terminated in accordance with the Civil Service Rules and the University Teaching Hospital (Reconstitution of Boards etc.) Decree No. 10 of 1985. He cited the cases of Shitta-Bey v. Federal Public Service Commission (1981) Vol. 12 NSCC 28; Federal Public Service Commission v. Laoye (1989) 2 NWLR (Pt.I 06) 652; Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25.

P.7

(b) That removal from office by reason of redundancy was not contained or envisaged by either the Civil Service Rules or Decree 10 of 1985 and that redundancy would not be applicable to the appellant. He referred to section 19 of the Labour Act No. 21 of 1974 and the case of Din v. Federal Attorney-General (1988) 4 NWLR (Pt.87) 147.

Mr. Fayokun learned counsel for the respondent on the other hand submitted that:

(1) Appellant’s appointment had no statutory flavour. The terms are set out in Exhs. H & K. He cited Olaniyan v. UNILAG (1985) 2 NWLR (Pt.9) 599.

(2) No question fair hearing arose in this case. The appellant was not terminated as a result of any query, misconduct or indiscipline and that no disciplinary procedures needed to be followed before she could be terminated.

(3) Appellant’s appointment was validly terminated in accordance with Exhibits H & K. The provisions relating to discipline of staff as contained in Decree 10 of 1985 and Staff Conditions of Service (Exh.K) did not apply. The Labour Act of 1974 also did not apply. He cited Olaniyan v. UNILAG (1985) 2 NWLR (Pt.9) 599.

The facts of the case are quite simple and straightforward. I will therefore be brief. There is no doubt that the parties herein are governed by Exhibits H & K in this case. Exhibit K provides for the procedure for termination of appointments.

It is provided on page 4 of Exh. K as follows:

“14. Determination of Employment

(1) Termination of Appointments (other than on Disciplinary Grounds)

P.8

(a) Permanent and Temporary Staff:

Appointment may be resigned, or terminated by giving one month’s notice in writing or payment of one month’s salary in lieu of notice by either side.

Needless to say that a similar provision is also made in the Offer of Appointment, Exhibit H. wherein it is provided thus:

Offer of Appointment

In the light of your performance at the recent interview I have the honor to offer you temporary appointment as a Grade 1 Midwife on month to month basis pending the completion of necessary formalities on the following conditions:

(a) That, unless dismissed, you may or the Management Board may terminate your engagement by a month’s notice or with the consent of your Head of Department, by payment of a month’s salary in lieu of notice.

(b) That as long as you remain in the services of the Management Board of Ife University Teaching Hospitals Complex you will be liable to be employed in any part of the complex.

(c) That you will be subject in all respects to all conditions of service stipulated from time to time for public officers in the appropriate Government regulations and instructions.”

It may be added that Exh.K is one such conditions of service stipulated for public officers referred to in (c) above.

Exhibit D clearly in my view complied with the provisions of Exhs. H & K above by giving to the appellant, amongst

P.9

others, one month’s salary in lieu of notice. Exh. D reads in part:

“Determination of Appointment

I am writing to inform you that the Management Board

………………………………………………., decided to dispense with your services with effect from the date of this letter. The Accounts Department is being advised by a copy of this letter to compute and pay you your final entitlements less your indebtedness (if any). Your entitlements include:

(a). Your salary up to date;

(b). your one month’s salary in lieu of notice;

(c). your 1987 earned but unenjoyed leave (if any) commuted to cash; and

(d). your gratuity at appropriate rate subject to availability of fund.”?

Both the trial court and the Court of Appeal therefore, I believe, were right when they found that Exh. D gave no reason for the termination of the appointment of the appellant. The respondent in fact was not bound to have done so. It is therefore obvious that since the appellant was not terminated or dispensed with for any misconduct or indiscipline or as a result of any query, the cases of Shitta-Bey v. Federal Public Service Commission (1981) Vol.12 NSCC 28; Federal Public Service Commission v. Laoye (1989) 2NWLR (Pt.106) 652; Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25; and Olaniyan v. UNILAG (1985) 2 NWLR (Pt.9) 599; (1985) 1 All NLR 314 heavily relied upon by the appellant will not apply. The reason simply is that the defendant would not be expected to have followed the

P.10

disciplinary procedures as laid in the Acts or decrees or Staff Conditions of Service to which appellant’s counsel referred. It is in this connection particularly that the provisions of the University Teaching Hospitals (Reconstitution of Boards, etc) Decree No. 10 of 1985 (Sections 8, 9 & 10 thereof) were not helpful to the appellant. These provisions relate to removal of staff for misconduct etc. In the instant case the services of the appellant were simply dispensed with or terminated without any reason whatsoever. Sections 5(5) of Decree 10 of 1985 clearly empower the respondent/Board to inter alia terminate employees. I have also found nothing helpful to her case in the Labour Act of 1974.

The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be of a special character ruling out the relationship of mere master and servant relationship. The court must confine itself to the terms of contract of service between the parties which provides for their rights and obligations. In this case it is the relevant conditions in Exhibits H & K that must be construed and nothing else (see Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149; Nigerian Produce Marketing Board v. A. Adewunmi (1972) 1 All NLR (Pt.2) 433; International Drilling Co. v. Ajijala (1976) 2 SC 115; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17; (1985) 6 SC 62). The appellant was unable to show that her contract of service was based or reinforced by any law or statute (see Olaniyan v. University of Lagos & Anor (1985) 2 NWLR (Pt.9) 599.

Now a word about redundancy. I said and it was clear

P.11

that the respondent did not give any reason for the termination of appellant’s appointment in Exhibit D. In its pleadings however it gave the reason to be retrenchment and actually adduced satisfactory evidence (including Exhibits J & J1) which convinced the learned trial Judge that redundancy was the compelling reason and not any misconduct on the part of the appellant. The respondent had to return two of its main hospitals to their original owners as a result of which it was decided to reduce staff strength in order to save costs. About one hundred members of staff were retrenched including the appellant. (See Exhibits J & J1). I think the trial court was right. But generally speaking a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the court will have no business with such motive but only to give effect to the contract of service between the parties (see Taiwo v. Kingsway Stores Ltd. (1950) NLR 122; Nwangwu v. Nzekwu (1957) SCNLR 61; (1957) 2 FSC 36; Amodu v. Amode & Anor (1990) 5 NWLR (Pt.150) 356).

I must also observe again that although counsel argued that the relationship between the parties was more than that of master and servant, he failed to tell us what the new relationship was and what conditions then governed the parties. The parties as I said before are governed by Exhibits H & K which provide that an appointment may be resigned or terminated by giving one month’s notice in

P.12

writing or payment of one month’s salary in lieu of notice by either side. The respondent lawfully and properly too chose the second option. The lower courts therefore properly in my view came to the conclusion that the appellant was validly terminated and that the termination was not as a result of any query, misconduct or indiscipline which would have warranted the adoption of a special procedure before achieving the same result.

The appeal therefore fails. It is accordingly dismissed. Costs of N1,000.00 are awarded to the respondent.