Psychiatric Hospitals Management Board V. Mrs Doris Edosa (2001)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
I dismissed this appeal and reserved my reasons for doing so today which I now proceed to give.
The plaintiff’s claim as pleaded in paragraph 35 of the Statement of Claim is as follows:-
“WHEREOF the plaintiff claims against the defendant:-
- A declaration that the purported termination from the services of the defendant by two letters viz letter No. PH/PE. 1030/61 of 23rd December, 1987 and letter No. PHMB/15/IV/556 dated 28th March, 1988 are unconstitutional, illegal, ultra vires, null and void and of no effect.
- An order re-installting the plaintiff to her position in the defendant’s employment with effect from the said 24th December, 1987.
- An order that all the plaintiff’s salaries, allowances, claims entitlements and benefits due and payable be paid to the plaintiff with effect from the date of her suspension.
Dated at Benin City, this 17th day of November, 1988.
(Sgd.)
The defendant denied the claim, filed a statement of defence which was further amended and in which he joined issue with the plaintiff.
After the conclusion of filing and exchange of pleadings, the case proceeded to trial with each side adducing evidence in support of his case. The learned trial Judge, Aiwerioghene, J considered the evidence before him and concluded:-
“In the event, the plaintiff has failed to establish that the termination of her appointment with the defendant body was wrongful. As this is the basis of all arms of the claim they must fail. The plaintiff’s claim is dismissed in its entirety.”
Aggrieved by the trial court’s decision the plaintiff appealed against it to the Court of Appeal, Benin Division, and that court, after hearing the appeal delivered a considered judgment in which it unanimously allowed it and directed as follows:-
“The letter of termination of appellant’s appointment of 28th March 1988 under the hand of the Secretary to the Board is accordingly declared null and void. It is hereby further declared that the
appellant is entitled to:
“(a) re-instatement in her position with effect from 23rd December, 1987 when the Medical Director purportedly terminated her appointment.
(b) full salaries, allowances, claims, entitlements and benefits with effect from the date of her suspension on 24th September, 1987.
Dissatisfied with the judgment of the Court of Appeal, the defendant has now appealed to this court.
The facts involved in this case can be precisely stated as follows:-
The plaintiff was a catering officer at the Psychiatric Hospital, Uselu, Benin.
At all times material to this case she was working at Uselu Hospital extension at Mile 18 Benin – Ore Road.
On 22/9/87 the plaintiff obtained permission from one Miss. Juliet Aghedo to go to market to do some shopping during which she purchased some items. On her return from the market she showed what she purchased from the market to Miss. Juliet Aghedo after which she put them into her handbag. When she was going to pick her children from school at about 1 p.m, the plaintiff joined the Hospital vehicle carrying with her, the items she had earlier purchased from the market. At the Hospital gate the security man asked her to alight from the vehicle in order to search her bag to which she obliged. During the search the security man saw in the plaintiff’s bag two tubes of pronto and some quantity of fresh tomatoes. He demanded to know if the plaintiff had not picked the items from the kitchen of the Hospital to which she offered explanation that she bought them from the market earlier and had taken same through the gate earlier that same day on her return from the market.
The security man was not satisfied with the plaintiff’s explanation and he seized the bag containing the items and took it to the office of the security supervisor. The plaintiff was invited to the office of the security supervisor where she was interrogated. She was served with a letter of query and suspension from duty without pay emanating from the office of the Medical Director. The plaintiff promptly answered the query within 24 hours, after which she received another letter from the office of the Medical Director inviting her to appear before Hospital’s Disciplinary Committee on 21/10/87, which she did. After the proceedings before the Hospital’s Disciplinary Committee and by a letter dated 23/12/87 the plaintiff’s appointment was terminated.
Dissatisfied with the action of the Hospital Disciplinary Committee, the plaintiff took her complaint before the Psychiatric Hospital Management Board in Lagos. The plaintiff appeared before the Committee set up by Hospitals Management Board after which she received a letter dated 23/12/87 from the Secretary of the Board terminating her appointment with a remark that it superseded the earlier letter of termination sent to her by the Medical Director, Psychiatric Hospital, Uselu, Benin City.
Henceforth in this judgment the plaintiff and the defendant will be referred to as the respondent and the appellant respectively.
Parties filed and exchanged briefs of argument in compliance with the Rules of this court. One original ground of appeal was firstly filed while four other additional grounds were later filed with the leave of this court.
In the brief filed by the appellant the following issues have been raised from the grounds of appeal for consideration and determination by this court-
i. Whether the respondent’s appointment was validly terminated in accordance with the relevant provisions of the Psychiatric Laws of Federation 1990.
ii. Whether in determining the case of the respondent the appellant duly observed the principles of the fair hearing and Natural Justice.
iii. Whether the Learned Justices of the Court of Appeal were right in holding that the respondent was tried by the appellant in respect of a criminal charge of stealing in breach of section 33(1) and 33(4) of the Constitution of the Federal Republic of Nigeria 1979 as amended.
iv. Whether the Learned Justices of the Court of Appeal were right in relying on Exhibit M, in giving judgment in favour of the respondent, when in fact the respondent impugned the validity of same.
The respondent also formulated four issues in his brief which read-
i. Whether the Court of Appeal was right when they held that the appellant’s Medical Director exceeded his powers under the Psychiatric Hospitals Management Act, CAP. 374, Laws of the Federation 1990.
ii Whether the termination of the appointment of the respondent did not accord with the rules of natural justice.
iii. Whether the Disciplinary Committee set up by the appellant’s Medical Director and the appellant’s Appointment, Promotions and Disciplinary Committee had the power to look into criminal allegations against the respondent.
iv. Whether it was proper for the Justices of the Court of Appeal to look at and comment on Exhibit “M”, the record of proceedings on which the appellant’s based the termination of the appointment of the respondent”.
The issues raised by the respondent have been adequately taken care of by the issues formulated in the appellant’s brief and for that reason I shall adopt the issues raised by the appellant in considering this appeal. I shall take issues (i) and (ii) together.
When arguing issues (i) and (ii) it was submitted that the Court of Appeal was in error when it stated that the Medical Director exercised his power under section 14 (1) of the Psychiatric Hospital Management Act and not section 13(2) of the same Act, when he suspended the appellant from duty which was followed by investigation that led to the termination of her appointment. It was also contended that the limited and erroneous application of section 13 of the Act by the Court of Appeal led it to conclude that the proceedings before the disciplinary committee ordered by the Medical Director was beyond his powers. The case of Ngwo & Ors. Monye & Ors. (1970) 1 All NLR 91 at 101 – 102 was cited and relied upon. It was also submitted that fair-hearing of her complaint was accorded her by the Committee set up by the Board.
In reply learned counsel for the respondent submitted that the Court of Appeal was right when it stated that the Medical Director exercised the powers provided in section 14(1) of the Act which was in excess of his powers. It was also contended that the respondent did not receive fair hearing before the Board and that the procedure followed in conducting the respondent’s trial before the Board was in breach of section 13(1) of the Act.
It should be borne in mind that the respondent was accused of stealing some items from the kitchen of the Psychiatric Hospital, the place she was working. In paragraphs 6 and 7 of the Further Amended Statement of Defence, the defendant/appellant pleaded thus-
“6. The defendant shall establish at the trial that plaintiff remained at Uselu at her own interest and shall adduce evidence that at no time did she show food items she allegedly bought to Miss. Juliet Agbedo nor did she show them to the Security man at the gate as strictly required by the rules and the regulations of the defendant. Defendant shall rely on circular and all other relevant documents at the trial.
- The defendant avers that plaintiff did not show her handbag to the Security man on demand. Rather she sat tight while the driver of the vehicle and the passengers alighted to surrender themselves for searching and when the Security man was searching the others, plaintiff took to her heels with her handbag to avoid being searched according to the rules and the regulations of the defendant. She was eventually caught up with by the Security man and searched and the food items were found in the plaintiff’s handbag during which time plaintiff knelt down and started to beg and confessed even before the Security Supervisor that the food items were the hospital’s property she removed from the catering department. The defendant shall contend at the trial that the plaintiff’s conduct at this stage was a serious breach of defendant’s rules and regulations, to the effect that any staff coming in or going out should submit to search by Security men”.
See also the contents of Exhibit D part of which stated-
“It has been alleged that the underlisted food items bought for use in the hospital Catering Department were stolen by you on 22nd September, 1987 while you were on duty. The food items were found with you concealed in your handbag after you were intercepted by the Security guard.
- Quantity of fresh tomatoes
- Two rubber tins of pronto beverage.”
The committee of five members set up by the Medical Director could not unanimously find the respondent guilty of the theft of two jars of Pronto and quantity of fresh tomatoes labelled against her but guilty of misconduct for failing to submit her handbag for search by the Security officer on first demand. Her appointment was terminated, and on petition against that to the Psychiatric Hospital Management Board, her case was ordered to be retried so as to comply with the provision of fair-hearing under section 13(1) of the Act.
At the conclusion of the re-trial by the committee set up by the management board, the appointment of the respondent was again terminated. There was no finding that she was guilty of the theft of the items mentioned.
I have carefully gone through the record of proceedings before the committee of the Management Board Exhibit M, but could not cite an instance where it was shown that the respondent was afforded the opportunity of cross-examining any of the witnesses that testified before the board against her.
The respondent/plaintiff pleaded in paragraph 4 of the statement of claim as follows:-
“The plaintiff will at the trial establish that as a catering officer she came within the ranks of senior staff and the rules that guide appointment and discipline of senior staff should apply to her.
In support of this averment the respondent testified thus:-
“I was then the catering officer and hold the rank of a senior staff on level 07, all the rules and regulations governing the appointment and discipline of senior staff should apply to me”.
The respondent was neither cross-examined nor contradicted by the appellant on this evidence on her status and rank as a senior officer.
Section 13(1) of the psychiatric Hospital Management Act provides as follows-
“13. -(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 Hospitals, other than the Medical Directors, should be removed from his office 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 the period of one month beginning with the date of the notice, make arrangement:-
(i) for a committee to investigate the matter and report 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 the board.”
As complained by the respondent the procedure adopted by the appellant in her trial was not in strict compliance with section 13(1) of the Act and also section 33(1) and (4) of the 1979 Constitution which was applicable at the time material to the action. In my view the conclusions of the Court of Appeal cannot be faulted in which it stated:-
“Under section 19 a “junior officer” means staff of such grade as may be determined from time to time by the Board. In the Court below, the appellant testified without contradiction by cross examination or otherwise, that she was on Salary Level 07 and therefore Senior Officer”.and
On a close examination of Exhibit “M”, there is no indication that the appellant was asked if she wanted to question any of the witnesses or that she in fact did. The inference is that she was not given an opportunity to cross examine the witnesses who spoke against her which is a clear violation of the rule audi alteram partem “.
Since the Board failed to comply strictly with the procedure laid in section 13(1) of the Act and section 33(1) and (4) of the 1979 Constitution, the Court of Appeal did the right thing when it allowed the respondent’s appeal on this issue. See NEPA v. El-Fandi (1986) 3 NWLR (Pt. 32) 884; Garba v. University Of Maiduguri (1986) 1 NWLR (Pt. (Pt.18) 550; Mohammed v. Kano Native Authority (1986) 1 All NLR 424 and Kanda v. Government of The Federation of Malaya (1962) AC 322 adopted and followed by this court in Adedeji v. Police Service Commission (1967) 1 All NLR 67.
The important thing in dealing with a trial of any case be it civil or criminal, is to ensure that the procedure of fair hearing is strictly complied with. If that is satisfied, it does not necessarily matter whether the correct section of the law making such a provision is correctly cited. The courts are now more concerned with doing substantial justice than clinging to procedural technicalities and therefore concern themselves with the substance and not the form. This apart, the allegation against the respondent involved commission of a crime which raised the onus to that of proof beyond reasonable doubt on the appellant. This is a condition precedent if he was to succeed. As for the respondent, she needed only to offer evidence to the preponderance of probability to exculpate herself from the accusation.
I have looked through the evidence adduced by the appellant and I found it to be so contradictory and unreliable on which no reasonable tribunal would act. The respondent on the other hand had offered reasonable explanation on the accusation labelled against her including that of misconduct. I cannot find reliable evidence in proof of misconduct against her.
Issues (I) and (II) are therefore answered in the negative.
The substratum of the complaint in issue (III) is that the Court of Appeal was wrong in holding that the respondent was tried for theft and in breach of section 33(1) and (4) and the 1979 Constitution. It is trite to say that the allegation before both the Committee and the committee set up by the Board was based on theft of two jars of Pronto and a quantity of tomatoes alleged to be the property of the appellant. Reading through the contents of paragraphs 6 and 7 and the substantial part of paragraph 9 of the Further Amended Statement of Defence, will leave no iota of doubt that the respondent was being accused of committing the Crime of theft of the items mentioned supra. This was the genesis of the allegation of misconduct against her. In fact the proceedings both before the Committee set up by the Medical Director and that set up by the Management Board are replete with pieces of evidence to that effect. Both proceedings were put in evidence at the hearing of the respondent’s case in the High Court. See for example Exhibit “D”, the query/suspension from duty issued to the respondent on the instruction of the Medical Director; Exhibit K, the minutes of proceedings before the committee set up by the Medical Director to investigate the allegation in Exhibit D and Exhibit M the extracts from the Minutes of the proceedings of the Committee set up by the Management Board to re-try the respondent’s case.
I have adequately covered this issue in my consideration of issues (I) and (II) supra. I do not intend to say more on it. I therefore answer issue (III) in the affirmative.
Issue (IV)
The complaint in this issue is that the Court of Appeal was wrong when it relied on Exhibit M in its judgment when the respondent had impugned its validity.
My short answer to the complaint raised in issue (IV) is that the argument put forward by the appellant is based on misconception. Ground 4 of the grounds of appeal is subsumed in ground 2 (as amended) of the grounds of appeal. The whole purpose of putting in Exhibit M in particular by the appellant was to show that the provision of section 13(1) of the Act as well as that of section 33( 1) and (4) of the 1979 Constitution were complied with. It was not put in evidence by the appellant for the purpose of cross-examining and discrediting the respondent and the evidence put in by her to prove her allegation of lack of fair-hearing. The appellant did not even cross-examine the respondent-and her witnesses on Exhibit M. In order to ascertain the truth or otherwise of the complaint against fair-hearing, the court had to look at Exhibit M, notwithstanding the respondent’s complaint against it in the Court of Appeal. Exhibit M and K were put in and tendered in evidence by the appellant. The trial court properly and rightly accepted them. There was no subsequent ruling by the trial court that the two exhibits were inadmissible ab initio, or that they were wrongly admitted. In my view the Court of Appeal was perfectly right and in order when after looking at Exhibit M, it concluded-
“On a close examination of Exhibit “M” there is no indication that the appellant was asked if she wanted to question any of the witnesses or that she in fact did. The inference is that she was not given an opportunity to cross examine the witnesses who spoke against her which is a clear violation of the rule audi alteram partem. ”
I therefore also answer Issue (IV) in the affirmative.
It is for these reasons that I dismissed this appeal on 27/11/2000 and affirmed the judgment of the Court of Appeal.
SC.163/1995
