IDUNG & ORS
UNIVERSITY OF CAIABAR TEACHING HOSPITAL & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 27TH DAY OF JANUARY, 2016
BEFORE THEIR LORDSHIPS
ONYEKACHI AJA OTISI, J.C.A
PAUL OBI ELECHI, J.C.A
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A
OKON O. IDUNG
ANIEFIOK SMART UDOM
SUNDAY M. UWAH
UKPONG P. EDET
MRS BASSEY EDEM OFFIONG
(FOR THEMSELVES AND ON BEHALF OF ABOUT 300 STAFF WHOSE EMPLOYMENT WERE PURPORTEDLY SEVERED FROM THE SERVICES OF UCTH CALABAR) Appellant(s)
UNIVERSITY OF CAlABAR TEACHING HOSPITAL
THE CHIEF MEDICAL DIRECTOR, UNIVERSITY OF CALABAR
THE DIRECTOR OF ADMINISTRATION UCTH CALABAR (RESPONDENTS
THE FEDERAL MINISTRY OF HEALTH
THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
MR. F. E. EKANEM ESQ. For Appellant
MR. N. B.ULAETO ESQ.
MR. D. UNDIE ESQ.
MR. I. IRONBAR ESQ.
MR. E. EBOGU ESQ.
for the 1st to 3rd Respondents. For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A, (Delivering the Leading Judgment):
This is in respect of an appeal from the judgment of the Federal High Court, Calabar Judicial Division delivered on the 4th of July, 2011 by Ademola J.
The appellants had on behalf of themselves and some other disengaged staff of the 1st respondent taken out a writ against the respondents at the trial Court for the following reliefs contained in their Amended Statement of Claim filed on 4th October, 2010 contained on pages 538-543 of the record of appeal as follows:
1. A declaration that the plaintiffs are entitled for retirement from their employment with the 1st defendant when they are due for retirement, as there is no provision for 'Severance from Service' as contained in 1st defendant's letters dated the 9th November, 2007 and served on the affected staff (plaintiffs) whose employment with the 1st defendant has a statutory flavor.
2. A declaration that the letters conveying the 'Severance from Service' of the plaintiffs by the 1st defendant not having complied with the plaintiffs' conditions of service with the said 1st defendant is null and void and of no effect whatsoever.
3. A declaration that any removal of the plaintiffs from the service of the 1st defendant when they have not attained retirement ages and who have not been found guilty of any misconduct are entitled to gratuity and pension paid to them up to when they attain retirement ages of 60 years or put in qualifying service years before retirement.
4. A declaration that the plaintiffs are entitled to be paid their monthly salaries by the 1st to 3rd defendants until the suit is heard and determined.
5. An order for payment of the plaintiff s' salaries until this suit is heard and determined.
6. An order for defendants to work each of the plaintiffs retirement benefits (gratuity and pension) and issue cheques in the like sums together with such cheques handed over to plaintiffs with their retirement from service letters in the event of insistence by defendants of the retirement of the plaintiffs from 1st defendant's service.
7. An order compelling the 4th and 5th defendants to direct the 1st to 3rd defendants to suspend the letter of 'Severance from Service' of the plaintiffs and to follow the due process on which the plaintiffs employment is based. Alternatively. An order for re-instatement of the plaintiffs to their employment with 1st defendant and their salaries paid for the year 2008, 2009, and 2010 and there after until the plaintiffs attain retirement ages of 60 or put in the required qualifying service years of 35 for retirement.
8. N1 Million damages.
On being served, the defendants contested the action and joined issues on the pleadings. 1st appellant/plaintiff was the sole witness of the appellants/plaintiffs at the trial while the respondents/defendants called witnesses. At the end of the trial, counsel for the parties addressed the Court upon which the learned trial Judge in a considered judgment found no merit in the appellants/plaintiffs' case and dismissed it.
Dissatisfied with this development, the appellants/plaintiffs invoked the appellate jurisdiction of this Court via a notice of appeal dated 13th September, 2011 but filed on 14th September, 2011 containing 7 grounds.
At the hearing of the appeal. Mr. Ekanem, the learned counsel for the appellants adopted the appellants brief filed on 9th October, 2012 as well as the appellants' reply brief filed on 18th September, 2015 but deemed properly filed on the 10th November, 2015 as the arguments of the appellants in this appeal.
For the 1st -3rd respondents, Mr. Ulaeto, their learned lead counsel adopted their brief filed on the 21st June, 2013 but deemed properly filed and served on the 10th November, 2015 as the arguments of the 1st -3rd respondents in this appeal.
The 4th and 5th respondents were not represented at the hearing of the appeal but their briefs of argument both filed on 15th April, 2013 and deemed properly filed and served on 10th November, 2015 were deemed adopted pursuant to Order 18 (9)(4) of the Court of Appeal Rules.
The appellants distilled and argued 4 issues for determination as follows:
1. Whether the letter of severance from service issued by the 1st respondent dated on 9th November, 2007 and served on the appellants after the severance exercise of workers in Federal Government parastatals had ended in 2006 and the deadline for submission of list of affected staff given as Friday 9th February, 2007 and payment of their entitlements given as 31st March, 2007 was not null and void and of no effect.
2. Were the appellants affected or covered by the severance exercise of workers in Federal Government Parastatals which had ended in 2006 when appellants were issued their letters of severance from service by 1st respondent on 9th November, 2007, in their employment with statutory flavour and which their salaries were proved in Court to be still running and respondent refused to pay to appellants and were they no more covered by their terms and conditions of service in their employment after the severance exercise which never involved them or had ended in 2006.
3. Whether the collection of the allegedly entitlements of the appellants at either Enugu or Abuja during the tendency of the suit had validated the invalid and void act of the severance of the appellants' employment carried out contrary to the stipulations of the laws and regulations governing the appellants' service/employment with 1st respondent.
4. Was the trial Judge not biased or was there no likelihood of bias against the appellants in the hearing of the case like refusal to release a copy of the judgment to the appellants to enable them appeal, even after the letter of protest was written and reserving rulings till judgment on inadmissible documents and others.
The 1st to 3rd respondents adopted the issues for determination formulated by the appellants while 4th respondent distilled and formulated 2 issues for determination as follows:
(i) Whether the appellant's services with the respondent that was outsourced/abolished was legal and valid.
(ii) Whether the appellant who collected the severance package from the respondent can still challenge actions of the respondents.
On the part of the 5th respondent, 2 issues for determination were equally distilled and argued as follows:
1. Whether an employer cannot sever the services of his employee irrespective of a severance exercise of workers policy directive or not.
2. Whether the appellants having collected their severance packages and benefits can be heard to ask for re-instatement, claims for damages on the same employment that has been severed.
An appraisal of the issues as formulated and argued indicates some overlap which requires that issues 1 -3 of the appellants adopted by the 1st -3rd respondents be considered together which would thereby also encapsulate the 2 issues of the 4th and 5th respondents and render issue 4 of the appellants otiose.
Arguing the issues, Mr. Ekanem, the learned counsel for the appellants observed that the presidential directive on the severance exercise in issue stipulated a deadline of Friday, 9th February, 2007 for submission of lists of affected staff and 31st March, 2007 for payment of the entitlements of such staff and submitted that the severance letters issued to the appellants were dated 9th November, 2007 outside the said stipulated deadline could not be covered by the said presidential directive and the said severance letters were accordingly null void and of no effect.
Mr. Ekanem further submitted for the appellants that a void retirement exercise cannot be validated by the acceptance of three months salary inlieu of notice which is equivalent to the acceptance of benefits in this case by the appellants. He referred to MILITARY ADMINISTRATOR OF BENUE STATE VS ULEGEDE (2001) 17 NWLR (PT 741) 194, ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT 300) 426 and ALHASSAN vs A.B.U. ZARIA (2010) ALL FWLR (PT 539) 962.
For the 1st -3rd respondents, Mr. Ulaeto submitted that the appellants were estopped from challenging the termination of employments in respect of which they had collected the terminal benefits as that would amount to approbating and reprobating at the same time.
He further submitted that the failure of the appellants to tender their contracts showing their conditions of service was fatal to their caseýpredicated on breach of contract as oral evidence of the contents of the said contracts was inadmissible.
He then referred to exhibit 33, the Guidelines for the Severance Exercise which shows that the exercise was not time bound but continuous and that the appellants failed to discharge the onus on them to show that they were unaffected.
For the 4th respondent, Mr. Ogbu in his brief observed that the presidential powers in this regard derived from Section 5 (1) (a) of the Constitution were not disputed by the appellants who also did not dispute the applicability of the Public Service Rules to their employment and submitted that the appellants services were appropriately terminated. He referred to A.G. KWARA STATE VS OFUBU (2001) L NWLR (PT 1016) 551 and UDEGBUNNAM VS FCDA (2003) 10 NWLR (PT 829) 487.
He also submitted that by collecting their severance benefits, the appellants could no longer challenge their termination as they could not approbate and reprobate. He referred to UDE VS OSUJI (1998) 13 NWLR (PT 586) 1, OYEROGBA VS OLAOPA (1998) 12 NWLR (PT 583) 509 and A.G RIVERS STATE VS A.G AKWA IBOM (2011) 8 NWLR (PT 1248).
In the brief of the 5th respondent settled by Mr. Mbam, it was submitted that the right to terminate or disengage a staff was not dependent on a special presidential policy exercise and where wrongful and reinstatement is not achievable, the affected staff would only be entitled to appropriate award of damages. He referred to PATRICK ZIIDEH VS RIVERS STATE CSC (2007) 29 NSCQR 701 and ABDULRAHEEM VS OLUFEAGBA (2006) 17 NWLR (PT 1008) 280 at 290.
The 5th respondent also submitted that collecting their terminal entitlements estopped the appellants from challenging their termination and referred to ILOABACHE VS PHILIPS & ORS (2002) 14 NWLR (PT 787) 263 at 292.
In his reply brief, Mr. Ekanem for the appellants further reiterated the earlier submissions on the issues.
A review of the arguments of the parties in this appeal necessitates that I begin my consideration thereof from issue 3 of the appellants which is the second issue of the 4th and 5th respondents.
This issue is on the implication of the collection of their terminal benefits by the appellants while their case challenging the termination of their appointments was pending.
Mr. Ekanem, the learned counsel for the appellants was the only one to furnish judicial authorities directly bearing on this issue in his brief.
The learned counsel principally referred to MILITARY ADMINISTRATOR OF BENUE STATE VS ULEGEDE (supra).
It must be noted that cases are authorities for issues decided by them based on the peculiar facts presented.
In the said case, termination was under Decree 17 which had strict provisions which were breached in the termination exercise in the particular case. It was canvassed that the plaintiffs challenging their compulsory retirement had collected payments in lieu of requisite notice and had thereby vitiated their claims but the Supreme Court was unequivocal in stating the legal principle that collection of terminal benefits in respect of wrongfully determined employment would not be a bar to the challenge of the wrongful termination. The Supreme Court in this regard relied on its earlier decision in ADENIYI GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT 300) 426.
The reasoning of the Apex Court was that if the termination was wrongful, it remained so and the defect thereof could not be remedied by the subsequent act of the injured party.
In the circumstances, I hold that the appellants were not estopped from challenging their termination or severance from service by the collection of their terminal benefits and I resolve issue 3 in favour of the appellants.
The main issue remaining to be determined here is whether the appointments of the appellants were wrongfully terminated or severed by the respondents which cover issues 1 and 2 of the appellants and issue 1 of the 4th and 5th respondents.
The sole witness for the appellants at trial was the 1st appellant who testified on behalf of the remaining affected staff. While stating that the appellants had conditions of service governing their employments, he failed to tender any documents containing the said terms or conditions of their employment.
As properly submitted by Mr. Ulaeto, onus of proof is definitely on the appellants to tender the terms or conditions governing their employment and show how the said terms or conditions were breached by the respondents. Failure to do this has dire consequences for the appellants' case as the Court cannot be placed in a quandary on such a vital issue. See DR OLORUNTOBA-OJU & ORS VS PROF ABDUL-RAHEEM & ORS (2009) 39 NSCQR 105 at 156-158.
Notwithstanding this lapse, allusions were made that the appointments of the appellants were subject to extant Civil Service Rules but that the respondents who claimed to have acted pursuant to the general severance exercise in public parastatals of the Federal Government acted outside the duration of the said exercise.
The appellants in their brief conceded to the extant powers of the President of the Republic to give policy directives as in the present case pursuant to Section 5 (1) (a) of the Constitution and equally conceded that the employments in issue are subject to Public Service Rules. The contention here was that the presidential directive here had a time specification and that the respondents in their case acted outside that time specification and could not claim the protection of the said presidential directive.
The guidelines for the reform of parastatals in the Public Service was exhibit 33 at the trial and is before this Court on pages 227-258 of the record of appeal. The appellants did not contest the validity or applicability of this document. Paragraph 6 thereof on page 239 contains as follows:
"6 Further Reforms-
As the reforms shall be a continuous exercise, further reform processes are expected to proceed even after the implementation of the Blueprint. Such changes, which shall depend on the final classification of the organization, may be in areas such as;
Process re - engineering.
Further structural adjustment.
Further redundancies and staff rejuvenation.
Pay review .
Re - skilling and retooling .
Service delivery reform.
Performance contracting, etc. (underlining mine)
The emphasis made were to show that the reforms which were to include staff redundancies and performance contracting were not time bound as erroneously canvassed by the appellants.
The 'illegality' of the severance letters of the appellants was anchored on their being outside the time specifications which as submitted by Mr. Ulaeto for the 1st -3rd respondents was misconceived as shown in exhibit 33.
The totality of the evidence adduced by the appellants at the trial clearly indicates that the appellants who had the onus of establishing that the severance or termination of their appointment was wrongful, failed to discharge the said onus. In fact, the impression conveyed by counsel in his submissions was that the respondents had the duty to show that it acted wrongfully in terminating or severing the appellants' services. This is erroneous. The appellants who were seeking the intervention of the Courtýwere the parties who would lose if no evidence was adduced. They had theýonus of showing how the respondents breached the terms of theirýemployment. See DR OLORUNTOBA-OJu & ORS VS PROF ABDULRAHEEMý& ORS (supra).ýSee also Sections 132, 133 and 134 of the Evidence Act, 2011.
In the circumstances, I must resolve issues 1 and 2 against the appellants. Issue 4 as earlier observed has become otiose and irrelevant in the circumstances.
In totality therefore, I find no merit in this appeal and I accordingly dismiss it. Judgment of the learned trial Judge is hereby affirmed.
Parties shall bear their respective costs.
ONYEKACHI AJA OTISI J.C.A.:
I had the opportunity of reading in advance a draft copy of the Judgment delivered by my learned Brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, dismissing this appeal.
The issues raised in this appeal have been fully addressed, and I am in accord with his reasoning and conclusion, which I adopt as mine. This appeal is also dismissed by me; and, the judgment of the learned trial Judge hereby affirmed.
I abide by the orders made in the lead Judgment.
PAUL OBI ELECHI, J.C.A.:
I have read in draft the Leading Judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, in this appeal.
The consideration of the issues has been well treated by my brother before arriving at its conclusion. As a result therefore, I do not have any other thing to add.
Accordingly, I hereby adopt same as mine and use same in dismissing the appeal as being unmeritorious.
I also abide by the issue as to costs.