O. U. Iyase V. University of Benin Teaching Hospital Management Board (1999)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A.

This appeal is against the decision of Idahosa J., of the Edo State High Court sitting in Benin in Suit No. B/371/94 wherein the appellant as plaintiff sued the respondent as defendant claiming reliefs which are particularised in his writ of summons and re-iterated as formulated in paragraph 23 of the Amended Statement of Claim. Paragraph 23 of the Amended Statement of Claim reads:-

“23. Whereof the Plaintiff claims as follows:-

1. A declaration that the termination of the appointment of the plaintiff by the Defendants (sic) from their employment before the retiring age of 55 years was unconstitutional, null and void.
2. A declaration that the Plaintiff is still in the service of the Defendants (sic) and entitled to be re-instated to the office of post (sic) or position he held before the purported termination of his appointment or to any other appropriate or comparative office or post or position.
3. An order directing the Defendants (sic) to re-instate the plaintiff to their employment with all full benefits and entitlements with effect from 15th July, 1992.
4. Any other reliefs:’

The case was tried on pleadings filed and exchanged by the parties. The pleadings were the eventual Amended Statement of Claim and the Statement of Defence. At the trial, the plaintiff was the only witness who testified in support of his claims as reflected in the Amended Statement of Claim. The defendant, at the close of the plaintiff’s case, did not call evidence in support of its defence. It instead rested its defence on the evidence adduced on behalf of the plaintiff.

The plaintiff’s case at the trial was that he was employed as a security man on 15/10/75 by the defendant which is a Federal Government parastatal situate in Benin City. He rose progressively from the post of security man on probation being a junior cadre to the office of Assistant Security officer on 1/10/88 being a Senior Cadre. He remained in this position until his appointment was terminated on 15/7/92. He went on to testify and identify the several documents he pleaded in his paragraphs 1, 2, 3, 4, 5, 6, 7 8 and 10 of the Amended Statement of Claim. The thirteen documents are in evidence as exhibits A to N. Exhibit A is a booklet on the conditions of Service while exhibit B is titled “Offer of Appointment” which apparently contains the conditions of service. Exhibit C is the letter confirming the appointment of the appellant while exhibits D,E,F,G,H,J and K dealt with promotions, regrading and attendant remunerations. Exhibits L, M and N were in respect of invitation to appear before a committee of inquiry. Exhibits P and Q are letters which related to the interdiction of the appellant while exhibits R and R1 are letters of protest to the respondent’s letter of termination (exhibit O) to the appellant’s appointment. It should be noted that exhibit O is a product of cross-examination. Learned counsel for both parties addressed the trial Court. In a considered judgment, the learned trial judge partly gave judgment to the appellant by allowing only relief No. 1 and dismissing reliefs No. 2 and 3 in the appellant’s claim in the following terms:

“In the result. Plaintiff’s action succeeds in part as follows:-

(a) It is hereby declared that the termination of Plaintiff’s appointment by Defendant before the retiring age of 55 years was null and void.

(b) The declaration and order sought in paragraphs 22(2) and (3) of the Statement of Claim (sic) are hereby refused and dismissed.

(c) The Defendant is hereby ordered to pay the plaintiff his terminal benefits in accordance with exhibit A for his years of service.

(d)… (nor relevant)…”

The plaintiff was aggrieved by that judgment and has appealed to this Court on just one ground of appeal. The only ground of appeal reads:-

“1. The learned trial Judge having declared the termination of the Plaintiff (sic) as null and void, erred in law in refusing to grant reliefs “2 and 3″.

Particulars of Error

1. The Court found that the Defendant did not follow the laid down procedure in terminating the appoint (sic) of the Plaintiff.
2. Having so found he would have upheld the re-instatement of the Plaintiff as claimed in reliefs 2 and 3.
3. Having found that the termination was null and void the Court was wrong in ordering the payment of one month’s salary in lieu of notice as at the time of termination.

Relief Sought From Court of Appeal

To set aside items (a), (b) and (c) of the said judgment and allow the plaintiff’s claim as per reliefs 2 and 3.”

The appellant and the respondent filed and exchanged their respective briefs of argument. The appellant distilled only one issue from the only ground to appeal.

The only issue reads:

“Whether the lower court was right in law in refusing to order the re-instatement and consequent payment of appellant’s benefits and all entitlements having declared the termination of his appointment wrongful, null and void.”

The respondent did not formulate any issue. He instead adopted the issue formulated by the appellant.

S.O. Odigie Esq, and Chief H.O. Ogbodu who respectively appeared for the appellant and the respondent at the hearing in this Court adopted their briefs and made oral submission in amplification of them.

The learned counsel for the appellant argued the sole issue by starting with the fact that it is common ground that the appellant was, at the date of the purported termination of appointment (15/7/92), a confirmed and pensionable employee of the respondent by virtue of his being an Assistant Security Officer. He went on to argue that the respondent had in its paragraph 5 of the Statement of Defence averred that the dismissal of the appellant was under Public Officers (Special Provisions) Act (Cap. 381) Law of the Federation 1990 while in paragraph 4 of the said Statement of Defence, he emphasized that the termination had nothing to do with the Disciplinary Committee set up by the defendant/respondent. He submitted that a judgment must be confined to the issues raised in the pleadings. On the basis of this submission he went on to argue that if the termination of the appellant’s appointment had nothing to do with the Disciplinary Committee set up by the respondent and there is no evidence before the court that the appropriate authority delegated its powers as stipulated “under the provision (sic) of Cap. 381 of the Laws of Nigeria’ and that the status of the appellant was not in dispute at the time his appointment was terminated, the termination of appointment

“is a complete nullity and hence Court is urged to hold this is a special circumstance to order a re-instatement as Respondent’s act is ultra vires and void. In law therefore appellant was never legally terminated (sic) from his employment.”

With due regard to the learned counsel I failed to see the wood from trees in the foregoing submissions. The learned counsel for the respondent reacted to these submissions by saying that they are not covered by the issue for determination in this appeal. Thus the issue of fair hearing and Section 9 of the University Teaching Hospitals (Reconstitution of Boards, Etc) Act, Cap 463 Laws of the Federation 1990 (hereinafter referred to as Cap 463) were not raised at the court below nor covered by the issue for determination. He submitted that arguments not arising from issues on appeal should be discountenanced by the appellate Court. See A. I. Egbunike & Anor. v. African Continental Bank Ltd. (1995) 2 NWLR (Part 375) 34 at 59. he therefore urged the Court to discountenance the arguments of the appellant not covered by the sole issue for determination.

I agree with the respondent’s call on the Court to discountenance the arguments of the learned counsel for the appellant. It is not in doubt that the defendant/respondent pleaded paragraphs 4 and 5 in its Statement of Defence. It is equally on record that the respondent did not adduce any evidence in support of the averments in those paragraphs. It is trite that the effect of failure of a party to call evidence in support of his own averments in a pleading is that such averments are abandoned. See Suara Yusuf v. Oladepo Oyetunde & Ors. (1998) 10 SCNJ at 18; (1998) 12 NWLR (Pt.579) 483 and Omoboriowo v. Ajasin (1984) 1 SCNLR 108; (1984) 1 S.C. 205. Equally complementary to this principle of law is that it is not sufficient to make allegations or averments in a pleading, as was done by the defendant/respondent in its paragraphs 4 and 5 of its Statement of Defence, credible evidence must be led in proof thereof. See National Bank of (Nig.) Ltd. v. P.B. Olatunde & Co. Nig. Ltd. (1994) 3 NWLR (Pt. 334) 512; (1994) 4 S.C.N.J. 65 at 79. paragraphs 4 and 5 of the Statement of Defence over which the learned counsel for the appellant is raising dust do not require such attention because they are not evidenced upon and thereby remain as averments and no more. It is advisable to dissipate energy where legally admissible evidence has been wrongfully excluded or evaluated.

Furthermore, since the averments in paragraphs 4 and 5 of the Statement of Defence have been canvassed and opined upon, I think is only apt to reproduce them. Thus they read as follows:-

“4. The Defendant says that the termination of the Plaintiff’s appointment has nothing to do with the disciplinary committee set up by it.

5. The Defendant shall contend that the dismissal of the Plaintiff from its service was done under sections 1-4 of Public Officers (Special Provisions) Act (Cap 381 of the Laws of the Federation of Nigeria (1990) and therefore this Honourable Court has no jurisdiction to entertain this case.”

Learned counsel for the respondent contended that the issues on paragraphs 4 and 5 (supra) and fair hearing raised by the learned counsel for the appellant were being raised for the first time in this Court. I agree with the observation of the learned counsel for the respondent and I hold that it is improper for the learned counsel for the appellant to raise those issues for the first time in this court without seeking leave of this Court. It is settled that where no evidence was led on an issue in the trial court, the appellant shall seek leave of the appellate court before he or she or even it can raise it on appeal. Failing the appellate court shall consider such issue incompetent and all arguments relating to it shall be discountenanced. See; Egbunike & anor. v. African Continental Bank Ltd. (supra) at page 59; Union Bank of Nig. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558 at 585; 12 S.C.N.J. 175 at 201 and Abaye v. Ike Ofile & Anor. (1986) 1 N.W.L.R. (Pt.15) 134. Since the appellant failed to seek leave of this Court before raising the fresh issues, all his arguments thereon are discountenanced.

On the primary issue (that is the issue formulated by the appellant and considered its own by the respondent), the learned counsel for the appellant argued that since exhibit A (conditions of service) is binding on both parties, the respondent had no choice but comply with its contents. He furthered argued that since the respondent had satisfied itself that the offence of “gross misconduct” was alleged against the appellant, the respondent should have recourse to the invocation of S. 156(a) of exhibit A which sets out the procedure to be followed, failing any other action taken by the respondent will be a nullity. He however, conceded that there is no provision under S. 156(a) of exhibit A of termination of appointment and the nearest that could have been done by the respondent after it had complied with the provisions on conditions of service as well as Caps. 381 and 463 was to retire the appellant from service. I hasten to say that although there is no provision on termination from service. I hasten to say that although there is no provision on termination of appointment in s. 156(a) of exhibit A, it is adequately provided for in Section 155 of exhibit A.

Learned counsel for the appellant furthered his submission by saying that exhibit A is a creature of Cap. 463 and particularly referred to the Section 9 which provides for the removal and discipline of ethical, administrative and technical staff while Section 10 deals specifically with the removal of junior staff. He urged the Court to hold that the appellant (a security officer) was a technical staff in Administration Department. He submitted that the appellant’s appointment was coverd by statutory flavour and he should enjoy the benefit of re-instatement. He reiterated the true principle of law that where a statutorily flavoured employment is not terminated in accordance with the procedure laid down in the relevant laws and regulations, the aggrieved party would be entitled to “automatic reinstatement”. See University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Part 363) 376 and Odiase v. Auchi Polytechnic (1998) 4 NWLR (Part 546) 477. He finally contended that since the appointment of the appellant was terminated without recourse to the laid down procedure, the learned trial Judge erred in dismissing reliefs (2) and (3) in paragraph 23 of the Amendment Statement of Claim (supra).

The learned counsel for the respondent predicated his reply on the issue of statutory flavour vis-‘E0-vis contract of service. He recounted the circumstances which will occasion such special status in a master and servant relationships. Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particularly evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure. If on the other hand, the contract of service is determinable by the agreement between the parties, such contract cannot be said to have statutory flavour.

It appears from printed record of appeal that the trial court placed considerable reliance on its conclusion that the contract of service between the appellant and the respondent was statutorily flavoured and as such the termination of the appointment of the appellant was wrongful because the respondent did not comply with the procedure laid down in exhibit A. the crucial question to ask is: what is the contract of service between the appellant and the respondent? It is found in exhibit b. the material aspects of exhibit B read:

“University of Benin Teaching Hospital

P.M.B. 1111 Benin City

Mr. P.O.U. Iyase 15th October, 1975

c/o Jackson Ehimwenman,

Accounts Section

U.B.T.H. Benin City

Dear Sir/Madam,

Offer of Employment

With reference to your application for appointment and subject to your being passed medically fit for employment in the University of Benin Teaching Hospital. I am directed to offer you appointment as security man at a commencing salary of N804 per annum in salary scale 02 (N804-948) on the following conditions:

(a) that the appointment will be on probation for 3 years or for such longer period as may be deemed, advisable;

(b) that within the probationary period if it is established to the satisfaction of the Secretary of the Board of Management, University of Benin Teaching Hospital, that you are not qualified for efficient service, your appointment may be terminated at any time without compensation, by a month’s notice, in writing, or by payment of a month’s salary in lieu of notice;

(c) that at any time, you may terminate your appointment by a month’s notice in wring or, with the consent in writing of the Secretary of the Board of Management of the University of Benin Teaching Hospital by the payment of a month’s salary in lieu of notice.

(d) that, you will be subject, in all respects, to all conditions of service as well as Regulations and Instructions specifically applicable to offers (sic) and employees of the Board an to al University of Benin Teaching Hospital staff, in general.

2. If you wish to accept this offer, please inform us within the weeks when you would like to assume duty here.

Your sincerely,

(SGD)

(I.O. Edeki)

(Secretary and Chief Administrative Officer)”

(Italics mine)

There is also need to critically peruse exhibit A which featured prominently in the judgment appealed against. Sections 1, 2, 3 and 158 of exhibit A are of moment in my quest for answer to the status of exhibit B. the title and those four sections of exhibit A read:

“University of Benin Teaching Hospital

Conditions of Service

Chapter 1

Section

1. Title

This document shall be known and called the University of Benin Teaching Hospital Conditions of Service.

2. Application

(a) The provisions of these Conditions of Service shall apply to al staff employed by the University of Benin Teaching Hospital.

(b)The “Conditions of Service” do not constitute a contract between the Board of Management and its employee and nothing in these conditions of service shall confer on any employee a legal right to the benefits of any of their provisions and the Board of Management at any time revoke, alter, add to or amend the conditions lad down herein.

3. Interpretation

In these Conditions of Service, unless the context otherwise requires, interpretation will be made by the Secretary to the Board of the Management, but any interpretation so made may be subject of an appeal by the employee to the Board of Management.

158. Right of Appeal

Any employee who is dissatisfied with the disciplinary actions taken against him under these Regulations shall have the right of appeal to the Board through the Secretary.”

(Italics mine for emphasis).

It is common ground that the respondent is a creation of Cap 463 (supra). It is equally common ground that the issue of discipline of staff of the respondent by the respondent is central to this appeal. Section 9 of that Decree takes care of that issue by providing for the class of officers of the respondent and the procedure to be taken before they are removed or disciplined. Section 9 of Cap 463 reads in part as follows:-

“9(1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the Hospital, other than the Chief Medical Director, should be removed from his officer or employment, the Board shall require the Secretary to:-

(a) give notice of those reasons to the person in question

(b) afford him an opportunity of making representation in person on the matter to the Board; and

(c) If the person in question so requests within a period of one month beginning with the date of the notice, make arrangements-

(i) for a Committee to investigate the matter and report on it to the Board, and

(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.

And if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of Board.”

The purport of section 9 (above) is to guarantee the security of tenure of clinical, administrative and technical staff of the University of Benin Teaching Hospital Management Board (hereinafter referred to as the Board). This provision is essence confers on the Board a special status over and above the normal contractual relationship of matter and servant. The only way to terminate such a contract of service with statutory flavour is to comply religiously with the procedure laid down in Section 9 Cap. 463.

It is pertinent to point out that both exhibits A and B respectively refers to the Board. In exhibit A the Board is stated therein to be a creation of Mid-Western State of Nigeria Edict No. 12 of 1971 as amended by the Mid-Western State of Nigeria Edict No. 11 of 1972. Exhibit B is overtly silent on the statute on which the Board therein mentioned was founded. It is common knowledge that the University of Benin Teaching Hospital has been taken over by the Federal Government of Nigeria. This takeover therefore excluded the defunct Mid-Western State or its successor State in whichever name it is called from exercising any jurisdiction over the Board. The current controlling authority is as provided for in Section 1(1) of Cap. 463 of 1990 which reads:

“1(1) As from the commencement of this Act, the Board of Management of teaching hospitals (hereafter in this Act referred to as the “Board”) controlled by the government of the Federation and specified in the schedule to this Act, shall be constituted and have the functions and powers set out in the following provisions of this Act.”

The schedule to the Act (that is Cap. 463) in its paragraph (e) specifically refers to the University of Benin Teaching Hospital, Benin as one of the twelve Teaching hospitals’ Boards listed therein.

It therefore follows that the Board referred to in exhibits A and B sourced their existence from Cap. 463. According to Section 9 of Cap. 463 is pertinent to the basis for the contractual relationship between the Board and its staff having contractual relationship laced with statutory flavour. The question is: Is the operation of Section 9 automatic to any contractual transaction between the Board and its staff? The answer is in the negative. It is trite to say that the fact that the respondent, as in this case, is a statutory body does not mean that the conditions of service of its employees must be of a special characters ruling out the relationship of mere master and servant. The court must confine itself to the terms of contract of service between the parties witch provide for their rights and obligations. See Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47 at 63; (1993) 6 SCNJ 35 at 44. It therefore follows that before the contractual relationship between the appellant and the respondent, with regard to the removal of the former by the latter as in this appeal, can enjoy the special status. Section 9 of Cap. 463 must be expressly be incorporated into either exhibit A or B or both of them. It is such incorporation that gives rise to special treatment by the way of statutory or legal flavour in the event of the master deciding unilaterally to terminate the appointment of the servant.

I have carefully perused exhibits A and B but I could not see where section 9 of Cap 463 is incorporated in the same way as it is embodied in the conditions of service of certain staff of the University of Ibadan and the University of Lagos which have provisions in section 9 and 17 of their enabling Acts which are in pari material with Section 9 of Cap 463. See: Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25 at 80; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 624.

Furthermore on this issue of embodying section 9 of Cap. 463 into exhibits A and B, it is instructive and invigorating to reproduce what Oputa JSC (as he then was) said at p. 624 of the Olaniyan case (supra). It runs thus:

“… I will emphasizes that the relationship that existed between the University and the appellant was not the simple common law relationship of master and servant, No. it was rather a relationship created by conditioned by, and subject to, the express provisions of the University of Lagos Act, investing the respondent with powers (as they relate to this appeal) to appoint or remove staff.”

Exhibit A is further handicapped from the special status accorded it by the learned trial Judge when he held at the ultimate paragraph of page 33 of the record of appeal as follows:-

“Exhibit A is therefore the document that shall guide the Court in the determination of the question whether or not plaintiff’s employment was properly or wrongfully terminated.”

The learned trial Judge held this view after lengthy consideration and relied on sections 148, 155 and 156 of Exhibit A which by necessary inference he equated to sections of a statute. This view, I am afraid, is a wrong conception of what the principle of statutory flavour entails. The seemingly special status accorded exhibit A was further weakened by its Section 2(b) (supra) which expressly states that it (exhibit A) does not constitute a contract between the Board and its staff and the provisions therein shall not confer on any staff a legal right to the benefit of those provisions. Section 158 of exhibit A (supra) gives any aggrieved employee against whom disciplinary action has been taken under the sections therein the right of appeal to the Board through the Secretary. In view of these, any action founded on exhibit A is not justifiable. The status of exhibit A is much lesser than even that of exhibit B. it is at best to describe it as a collection of guidelines for the internal execution of the Board. The trial Court therefore erred in law in the interpretation given to exhibit A which led to its decision that termination of the appointment of the appellant by the respondent was wrongful.

Exhibit B is instead the contract of service that was freely entered into by the appellant. It is therefore the document which the trial court should have used to resolve the complaint on the removal of the appellant from the respondent’s establishment. By virtue of exhibit B the relationship between the appellant and the respondent was the common contract of service or of employment. Where a contract of employment, as in this case, is in writing the parties are bound by the express terms and conditions so stipulated. Furthermore, a contract of service is determinable by the master only upon giving reasonable notice or on the notice stipulated in the contract between the parties. There is also a corresponding right for the servant to determine his services by giving notice as stipulated in the contract of service. If however, the master does not terminate the contract of service with his servant in the manner stipulated in the contract, he shall be laible in damages for breach of contract and not by re-instatement of the servant because there is no specific performance of a plain contract of service. See Olaniyan & ors. v. University of Lagos (supra) at pages 641 and 669.

In view of the foregoing principles on contract of service with particular regard to removal of the appellant recourse should be had to exhibit B to know if he was regularly removed from the services of the respondent. Paragraph C of exhibit B appears to have provided that the appellant could, at any time, terminate his appointment with the respondent by giving a month’s notice in writing or with the consent in writing of the Board’s Secretary pay a month’s salary in lieu of notice. Although, the corresponding right of the respondent to terminate the appointment of its staff is not provided for in exhibit 3, it is trite to say that the power to enter into a contract of service or employment encompasses the power to terminate the contract. See Irem v. O.D.C. (1960) SCNLR 70; (1960) 5 F.S.C. 24 at 29. I shall, in view of this principle, extend the provision of paragraph C (above) to the respondent. The question is did the respondent comply with paragraphs C before terminating the appointment of the appellant? It is not to disgress a little and state the established principle that a master is at common law entitled to dismiss or remove his servant from his employment for good or bad reasons or for no reason at all. The answer to the question may be found in exhibit O. I shall reproduce only the penultimate and the ultimate paragraphs of exhibit O (that is Termination of Appointment). The exhibit to the extent mentioned above reads:

“University of Benin Teaching Hospital

P.M.B. 1111 Benin City, Nigeria.

15th July, 1992

Mr. P.O.U. Iyase,

Assistant Security Officer,

Thro’ The Principal Security Officer,

U.B.T.H.,

Benin City.

Termination of Appointment

….

….

….

Management, having carefully considered the Committee’s report and your testimony before the Hospital Management Committee, has decided to terminate your appointment with the Hospital on the ground of gross misconduct in accordance with the Hospital’s Conditions of Service. Your appointment with the Hospital is hereby terminated with immediate effect.

Accordingly, you are advised to hand over all hospital property in your possession – if any – to the Principal Security officer. By a copy of this letter the Assistant Chief Accountant has been advised to pay a month’s salary in lieu of notice.

(SGD)

Rev. E.E. Onoruyi-Okundaye

For: Chief Medical Officer”

(Italics mine)

It is obvious from the relevant contents of exhibit O that the respondent complied with the express provisions of exhibit B by giving the appellant a month’s salary in lieu of notice. That, indeed, by the nature of the contract the appellant freely entered into with the respondent, is what he is entitled to and not more. I accordingly resolve the only issue in favour of the respondent.

In these circumstances the termination of the appointment of the appellant by the respondent was quite valid and in order. Consequently, the judgment of the trial court declaring the termination of the appointment of the appellant by the respondent “null and void” is set aside.

In the final analysis the appeal fails and it is dismissed with costs of N2,000.00 to the respondent.

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Other Citations: (1999)LCN/0550(CA)