IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: NICN/LA/36/2023

 

BEFORE HIS LORDSHIP: HON. JUSTICE S.A. YELWA----JUDGE

THIS MONDAY, 1ST DAY OF JUNE, 2026

 

BETWEEN:

MRS. OLUWABUNMI AMINAT OLAWOYIN          -           -           CLAIMANT

AND

1.     LAGOS UNIVERSITY TEACHING HOSPITAL

2.     LAGOS UNIVERSITY TEACHING HOSPITAL

MANAGEMENT BOARD.

3.     LAGOS UNIVERSITY TEACHING HOSPITAL

MEDICAL ADVISORY BOARD.                             -           DEFENDANTS

4.     LAGOS UNIVERSITY TEACHING HOSPITAL

DIRECTOR OF ADMINSTRATION.

5.     LAGOS UNIVERSITY TEACHING HOSPITAL

HEAD OF FINANCE AND ACCOUNTS

 

JUDGMENT

 

The Claimant filed this suit vide a complaint and accompanying originating processes on 31/01/2023, wherein claiming against the Defendants jointly and severally, the following reliefs:

1.     A Declaration that the claimant is entitled to constitutional right of fair hearing as guaranteed and enshrined under Sections 36 and 35 of the 1999 Constitution of Federal Republic of Nigeria (as amended).

2.     A Declaration that the purported premature retirement/invalidation of the claimant’s employment with the first defendant by the defendants communicated vide a letter dated 29th June, 2022 with reference no. PC/10760 is unconstitutional, null and void.

3.     An Order of this Honourable Court setting aside the purported premature retirement/invalidation of the claimant’s employment with the first defendant.

4.     Award of 16 years emoluments (N252,340.66 x 12x16) N48,449,406.72.

5.     Award of contributory pension (8% employee’s (N20,187.24 x 12x16 N3,875,952.53.

6.     Award of contributory pension (10% employer’s) (N25,234.05 x12/16) N4,844,973.60.

7.     Award of 6 months’ salary in lieu of notice N1,514,043.96.

8.     Award of life insurance (N252.340.66x12x3) N9,084,263.76.

9.     Award of pension (19x252,340.66 x12/100%) N575,336.70.

10. Award of gratuity (19x252,340.66 x12/100%) N575,336.70.

11. Award of special damages for the psychological and emotional trauma suffered-@ N20,000,000.

12. Award of general damages as compensation for the ill-treatment of premature retirement.@ N20,000,000.

13. Cost of the litigation

And for such other or order (s) as the Honourable Court may grant in the circumstances.

 

In respond, the defendants, with leave of this court, filed their joint statement of defence alongside with other necessary processes dated 6/7/2023. The Claimant, being served with the statement of defence of the defendants, filed her reply to the statement of the defence on 19/7/2023. The defendants amended their statement of defence with leave of court and filed same on 8/11/2023 together with the Witness Statement on Oath. Consequentially, the Claimant filed reply to the Defendants amended Statement of Defence on 27/11/2023. The case was assigned for trial to my learned brother, Hon Justice (Prof) E. A. Oji and proceedings commenced on22/3/2023. However, the case was transferred to this court and proceedings re-commenced on 20/5/2024

The Case of the Claimant

The Claimant’s case deducible from the processes filed, is that she was employed as a Chief Executive Officer (Accounts) to the 1st Defendant and has worked for approximately 19 years before she was prematurely retired having only attained the age of 44 years with expectation of 16 years more to attain her retirement age of 60 years in the service of the 1st defendant.

The claimant maintained that owing to her ailment, she applied for 6 months leave of absence to enable her undergo medical treatment overseas. However, the claimant stated that her application for leave of absence without pay was not responded to but her salary was stopped immediately upon receipt of the letter by the 1st defendant. It was half way into the leave of absence that the 1st defendant invalidated the claimant from service vide a letter dated 29/6/2022 but served on 4/9/2022 about nine weeks after. Claimant went on to state that her disengagement was affected by the defendants despite the clean bill of health issued by the Medical Advisory Board set up by the 1st defendant to evaluate the health status of the claimant.

In view of these facts, yet the claimant’s employment was purportedly terminated/invalidated culminating into filing this suit by which the claimant is seeking for the reliefs above stated.

 

The Defendant’s Case

The defendants in response to the claimant’s suit, filed their statement of defence, and arising therefrom as well as the accompanying processes the defendants’ case is that the defendants are not indebted to the claimant though worked for the defendant for approximately 19 years, but that the claimant continuously absented from her duty without authorization which action has been in contravention of the rules of the 1st defendant. Claimant failed to comply with the advice of the Hospital Medical Board approved by the management. Defendants maintained that the claimant was paid her salaries and allowances during the period of her leave and the period she over stayed despite not being on duty, and in addition the claimant’s salary and allowance was subsequently stopped due to the claimant’s continued absence from duty without authorization. The defendants stated that the claimant’s non resumption from her annual leave after expiration of the approved leave date was regarded as absence from duty without authorization and the claimant having failed to comply with advice of the Hospital Medical Board as a result of the said noncompliance, the Management Board recommended the invalidation of the claimant from the hospital service. Furthermore, the defendants contended that claimant requested for 2-month Medical Leave again to seek comprehensive Medical Treatment in the United Kingdom from 2/10/2017 but only 1 month was then approved for her by the Management. Consequently, the Claimant kept on requesting for more other medical leaves, most of which were granted, except by a letter dated 26/5/2021 the claimants request for more extra Medical Leave was not approved by the Management, instead she was asked to resume duty with immediate effect. Nevertheless, the Claimant overstayed with 4 months, 15 days for the 4th time. This prompted the defendants to constitute a Medical Board to invite the claimant for examination of her fitness as a condition for her to remain in the service of the Hospital. The Medical Board however made recommendations which were conveyed to the claimant in a letter Ref No. PC/10760/234 of 17/1/2022.

 

Notwithstanding the conveyance to the claimant, she did not resume duty instead, she requested for 6 months extension of her leave without pay to continue with her medical treatment in the United Kingdom. The defendant contended that claimant was paid salary and allowances during the period of her leave and the period she overstayed despite not being on duty. That it was after this that the claimant’s salary was stopped with effect from 10/05/2022 due to her continued absence from duty without official permission and this instant long absence, the defendant regarded as “Absence from duty without Medical Board Advice”. Consequently, the Disciplinary Committee Recommended her INVALIDATION.

 

Trial

On 20/11/2024 trial commenced by zoom when Mrs. Olawoyin Oluwabunmi Aminat (The Claimant) testified as CW1. The following documents were tendered in evidence and marked accordingly.

 

They are:

1.     Letter of appointment dated 30/12/2003 --Exhibit C1

2.     Letter of confirmation of appointment dated 8/2/2006            --Exhibit C2

3.     Letter of approval to proceed abroad on medical ground dated 16/4/2020 by LUTH--Exhibit C3

4.     Letter dated January 17th, 2022 --Exhibit C4

5.     Letter of Invalidation dated 29/6/2022 --Exhibit C5

6.     Letter to the FSCC dated 15/11/2022--Exhibit C6

7.     Letter to the FSCC dated 21/11/2022 amending the early one-- Exhibit C7

8.     Reforwarding letter to FSCC dated 15/11/2022--Exhibit C8, respectively.

 

CW1 was cross-examined by the counsel for the defendants. Consequently, claimant’s case was closed.

After several adjournments at the instance of the counsel for the defendants, the defendants opened their defence on 21/10/2025 with Olusegun Olajide who testified as DW1 and tendered no documents in evidence. At the conclusion of his evidence in chief, DW1 was cross examined by the claimant’s counsel. There being no re-examination, defendants’ case was closed. the court adjourned the case for counsel to file their final Written Addresses.

 

THE FINAL WRITTEN ADDRESSES OF COUNSEL:

The Claimant’s Final Written Address was filed earlier than the Defendants’ Final Written Address. This was as a result of delay caused by the counsel for the defendant in filing the defendants’ Final Written Address.

On 21/5/2026, this case came up for adoption by counsel of their respective written addresses. At this stage, counsel for the claimant, however informed the court that before they could proceed to adopting their final written address, they rather sought to take their pending motion on notice by which claimant’s counsel sought by a motion on notice, to amend the claimant’s’ processes by exhibiting some documents attached to the motion filed on 4/11/2025. The motion having been moved in terms of the motion paper, was in the absence of any opposition, granted as prayed. Accordingly, by leave of court, (a) Application for extension of leave dated 26/4/2022, addressed to the Director of Administration, LUTH Idi Araba, Lagos, (b) Letter of support from the Rheumatologist dated 31/3/2022 addressed to the Doctor in charge, LUTH, Idi Araba, Lagos; and (c) Letter of support from the Eye Clinic, dated 8/4/2022 addressed to the applicant were exhibited by the claimant in this case. Consequently, counsel proceeded to and adopted their respective final written addresses.

 

 

 

DEFENDANTS’ FINAL WRITTEN ADDRESS:

The defendants’ final written address dated 9/1/2026 was filed on the same day in which a sole issue for determination was simply raised to the extent that;

“Whether the claimant is entitled to the relief sought.”

In their submission, counsel for the defendants maintained that the claimant was employed by the 1st defendant by virtue of letter of employment dated 30/12/2003 which has stipulated the terms and conditions of the claimant’s employment. Counsel referred this court to paragraph “B” of the Letter of the Employment of the claimant before the court marked as Exhibit CW1. Counsel recounted the situation that led to the case of the claimant by analyzing the factual basis of the case before the court. It is based on the analysis that counsel submitted that a critical examination of the fact of the case reveals that the claimant is no longer competent enough to discharge her duties and her employment letter stated it clearly in paragraph “B” that if at any time it is established to the satisfaction of the Chief Medical Director that the claimant is not qualified for an efficient and effective service or is unsuitable in other ways, her engagement may be terminated. It is further submitted that it is in line with the claimant’s employment contract that the claimant’s employment was terminated and counsel urged the court to hold same. Counsel posited about the magnanimity of the defendants towards tolerating the unfitness of the claimant on ground of health and her absence from duty without authorization which is not only a total contravention of the 1st defendant’s work rules but also a contraction of the 1st defendant’s work relationship with the claimant. It is further the submission of counsel that the claimant failed to comply with the advice of the Hospital Medical Board which had been approved by the Management and communicated to her and in view of this, counsel contended that the appointment, promotion and disciplinary committee recommended the claimant be invalidated from the hospital service which was carried out in conformity with the hospital rules. In his further submission, counsel for the defendant contended that the claimant is seeking salaries for work she did not do and as such the claim has no basis in law and in this regard, counsel urged the court to dismiss the claimant’s claim.

 

CLAIMANT’S FINAL WRITTEN ADDRESS

Claimant’s Written Address was dated and filed on 19/11/2025 wherein counsel after assessing the entire case of the claimant, formulated seven issues for determination on the basis of which he canvassed his submissions. The issues are as follows:

1.     Whether or not the defendants are indebted to the claimant.

2.     Whether the claimant was absenting from work without authorization.

3.     Whether the ailment was hidden by the claimant.

4.     Whether the claimant deliberately overstayed her approved period of absence.

5.     Whether the claimant ignored or failed to comply with the advice of the third defendant.

6.     Whether the claimant was frivolous in requesting for leave of absence.

7.     Whether the claimant’s service was properly invalidated.

 

ISSUE 1

Claimant’s counsel submitted that the legal entity is the 1st defendant, but corporate governance ethics demand that the 2nd, 3rd, 4th and 5th defendants play significant roles in the administration, management, and control of the hospital. These units are the operational arms of the business which is the position of treatment, rehabilitation, research and service delivery in a tertiary health institution. Counsel maintained that the roles played by these non-legal entities cannot be underestimated as they are responsible for the anomalies, or inconsistencies being challenged in this action. According to counsel, the 2nd defendant ought to have advised the first defendant to follow due process in determining the employment of the claimant, while the 3rd defendant was negligent in consistently not locating the case file of the claimant consequent upon which the claimant lost faith in local treatment because whenever she comes to the hospital the doctors are at sea as to where to start because her health record is not available, and also the 3rd defendant is culpable by not considering it necessary to recommend that the claimant be invited before her employment was determined, so also having exhibited poor professional management of the ailment by not doing the needful.

 

It is equally the submission of the claimant’s counsel that the 4th defendant bungled the handling of disengagement by writing a letter to the claimant in June, 2022 but delivered it to her three months later, i.e. in September, 2022 via her e-mail address; while the 5th defendant failed to advise on the financial implications of determining an employee’s services without due process. Counsel posited that these lapses and acts of negligence that cannot be overlooked in determining the veracity or otherwise of this case as the defendants have failed in their duty when they prematurely retired/ invalidated the employment of the claimant.

 

 

ISSUE 2

It is the submission of counsel for the claimant that throughout the tenure of the claimant’s employment with the defendants she never absented from duty without permission. Such instances but with permission included when she was down and was in and out of her U.K hospital to wit she notified the defendant, though no reply but resumed work soon she became fit. Similarly, during covid 19 endemic which made her return to work so impossible, but then, she communicated to the 1st defendant. Moreso, the claimant requested for another extension to enable her access her treatment in the U.K but the defendants replied her to come back so that she might apply for another in the future. Counsel cited SHEHU v AFERE (1998) 7 NWLR pt 556 p.115 in which the Court of Appeal held that a person is entitled to seek the best medical treatment anywhere to save his life provided he can afford to pay for it.

 

ISSUE THREE;

Counsel argued that the claimant did not hide her ailment to the defendants as she constantly updated her employer regarding her appointments with various specialists.

 

ISSUE FOUR;

Counsel submitted that throughout the saga, the claimant was informing the defendants in writing about the state of her health.

 

ISSUE FIVE;

Counsel submitted that the claimant had passed through 8 years in search of medication without cure. This prompted her to look for a more conducive environment to achieve a healing process as an option. This was relayed to the 3rd defendant.

 

ISSUE SIX;

It is submitted that owing to the progress and her health improvement, the claimant found it imperative to ask for leave even without pay to comply with her medical advice. The requests were supported by documents regularly forwarded to the defendants.

 

 

 

ISSUE SEVEN;

Counsel contended that the claimant’s service was not properly invalidated because there was no due process followed in view of the provision stated in Section 6, paragraph 030601 of the Federal Government Public Service Rules. Counsel urged the court to resolve the issues in favour of the claimant.

 

REPLY ON POINTS OF LAW;

Claimant filed reply on points of law to the defendants’ final written address wherein raised and argued five issues for determination. My close reading and understanding of the reply filed by the claimant reveals that it is more of repetition of the earlier agued issues by the claimant and not relevant to the arguments of the defendants’ counsel. There was therefore nothing like reply on points of law. It is in this regards I do not find it worthy to recapitulate the reply herein again.

 

DECISION OF THE COURT:

I have perused through all the processes filed by the parties in this case including the written depositions and Final Written Addresses and Reply filed. I have also attentively listened to the witnesses and submissions of counsel at the point of adopting their respective written addresses. Apart from issue no.7 raised in the address of the claimant, I am of the view that the rest of the issues raised are not good enough contextually, upon which this case can be properly determined. I have decided to deal with this judgment within the context of the question and the following issues for determination.

(a)            What is the nature of the contract of the employment given, in view of the case?

(b)            Whether the claimant was afforded fair hearing before the termination/invalidation of her employment.

(c)  Whether the claimant’s retirement/invalidation is unconstitutional and therefore, null and void. And;

(d)            Whether the claimant is entitled to the reliefs sought.

On issue (a)

There is no doubt that reading through the pleadings and evidence adduced by the parties as well as the submissions of counsel, there exists between the claimant and 1st defendant a valid contract of employment, the basis of which is the offer of appointment letter of 30/12/2003 which is Exhibit CW1 and their relationship is strengthened by the confirmation letter dated 8/2/2006 issued on behalf of the 1st defendant marked as Exhibit CW2 and of course other Exhibits such as CW3, CW4, CW5 and CW6. Having found that there was in existence between the claimant and the 1st defendant to which the remaining 4 other defendants in this case are Officials and Institutions working for the 1st defendant, they are proper parties, hence in the realm of Labour law, the meaning of employer is wide enough to warrant the inclusion of other supporting staff. Per B.B Kanyip (J), in OLUWOLE v FIDELITY BANK Plc (unreported), Suit No. NICN/LA/350/2013, decided on 13/12/2017. The Learned Jurist made reference to the provisions of Section 91 of the Labour Act, Cap L.1, LFN, 2004 where employer includes any person as a worker either for himself or for the service of any other person and includes the agent, manager or factor of that first mentioned person…One may want to restate here  that the 1st defendant being an institution owned by the Federal Government which fact is notorious is part of the public service by virtue of the provisions of Section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as such the claimant’s employment is one clothed with statutory flavour. It is clear that an employee of a body established by statute, is a public servant. See the decision of the Supreme Court, per Sanusi JSC in AVRE v NIPOST (2020) 8 NWLR pt 1727 p 403 @419, wherein the Apex Court held; that the appellant was employed under the Nigerian Postal Service Act Cap N127, Laws of the Federation 2004, to which by its Section 1, there to the Nigerian Postal Services, a body corporate can sue and be sued. Section 9(1) of the Act gives the Board powers, subject to the approval of the Minister, to regulate the activities of the Board and also to appoint and discipline (for instance dismissal or termination of appointment) of any of its erring staff. It goes without saying therefore and as the appellant is simply a public servant in the case. I have scrutinized through the processes, but did not find where the parties pleaded the public service rules. However, it is pertinent to ascertain what is it to constitute employment with statutory flavour. The answer could be read from the decision of the Supreme Court in CBN v IGWILO (2007) 14 NWLR pt 1054 p.393 where it was held: An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for the employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master-servant. See also IDE v UNIVERSITY OF ILORIN (1994) 3 NWLR pt 330 p.81. The law categorizes employment contract into three, namely; (a) Those regarded as purely master and servant (b) Those where the servant holds office at the pleasure of the employer; and (c) Those where the employment is regulated or governed by statute, otherwise known as having statutory flavour. A contract of master and servant may be subject to either statutory or common law rules or both. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations governing the procedure for employment and discipline of an employee. In other words, any employment outside that category is governed by the term under which the parties agreed to be master and servant. See FEDERAL MEDICAL CENTRE IDO-EKITI v ALABI (2012) 2 NWLR pt 411 CA and also OLANIYAN v UNIVERSITY OF LAGOS (No.2) (1985) 2 NWLR pt 9 p.599. It therefore, goes to be that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. Now, in view of these, it can be sensible to say that the contract of the employment between the parties herein is neither a simple contract nor one of master-servant relationship that is governed ordinarily by agreement entered. See UNIVERSITY OF ILORIN v AYIDE (2005) 15 WRN, p.113 and also IMOLOAME v W.A.E.C (1999) 9 NWLR pt265 p.303.

 

From the above analysis of the law and relating same with the fact in issue in this case and while taking cognizance of Section 122 of the Evidence Act 2011 as amended in 2023, it is certain that the 1st defendant  is a body set up by the constitution or statute and the statute or regulations made pursuant to the constitution or principal statute or law must have provision regulating the employment of the claimant as employee in matters of discipline. Having said so, I answer question (a) above that the contract between the parties, in this case is one that is covered with statutory flavour.

 

On issue (b):

It is part of the case of the claimant that she had worked with the 1st defendant as employee for specifically 18 years and 7 months, approximately 19 years and her last position was Chief Executive Officer, Accounts. That due to her ailment, she resorted to applying for leave to enable her secure alternative treatment abroad. In the course and at an instance, the claimant applied for leave of absence without pay which the defendants did not even respond to her application for the leave of absence without pay. The claimant, rather proceeded abroad for her medication, even though without the approval of the defendants to whom she had applied for approval. The situation culminated into issuing of letter of invalidation of the service of the claimant dated 29/6/2022 but delivered to her on 4/9/2022 despite the clean bill of health issued by the Medical Advisory Board regarding the state of health of the claimant as per the Letter of approval by the 1st defendant, dated 17/1/2022.

The defendants’ position, on the other hand that the invalidation/termination of the claimant was as a result of the claimant’s continuous absence from duty without authorization which is in contravention of the rules of the 1st defendant and also failure to comply with the advice of the Hospital Medical Board communicated by the Management of the 1st defendant to the claimant.

 

At any rate, the question that begs for answer from the facts distilled is; does the action taken in terminating the employment of the claimant surmountable in view of the nature of the employment contract, fair hearing as well as rules of natural justice alongside with the content of paragraph B of  Exhibit CW1 vis-à-vis paragraph 1 of Exhibit CW4 wherein it is stated that “The hospital Management has therefore considered the report of the Medical Board and decided as follows: (1) That you are still fit to continue to remain in the service of the hospital….” It goes without doubt that in employment matters, an employee or civil servant who is on approved or unapproved leave without pay on health grounds can have his employment terminated, but the process must adhere strictly to the public service rules. If the employee can no longer perform duties or is incapacitated and unable to resume work in the foreseeable future, the claimant can be terminated or retired from service on medical ground, provided he/she appears before a medical board committee. Generally, before termination, the employer must follow the procedure of issuing query, giving him/her an opportunity to respond and giving appropriate notice required by the rules of engagements like the PSR. One of the challenges is that the claimant could have produced the workable instrument from which this court would have seen where the noncompliance occurs.

 

It is obvious from the averments of the defendant which is supported by the Witness statement on oath of DW1 that the claimant’s extension of medical leave was not approved by the Management instead the claimant was asked to resume duty with immediate effect, but she overstayed her approved medical leave by 4 months and 15 days for the 4th time. The defendants contended that due to the overstay, the claimant was invited to a Medical Board to examine her fitness for her to remain in the service of the 1st defendant. It is also not challenged that the Medical Board issued recommendations which were conveyed to the claimant in a letter dated 17/1/2022 which is Exhibit CW4. The entire base of the defendants’ case is that the claimant was absent from duty without authorization as a result the claimant’s employment was invalidated/terminated vide Letter dated 29/6/2022 being Exhibit CW5 with caption “Letter of Invalidation from Service of the Hospital” by this, it contains that “the management has approved the report and therefore decided you should be invalidated from the service of the hospital…”

 

The purpose of fair hearing in any matter is to afford opportunity to a person likely to be affected by the decision to make his representation. The phrase is synonymous with natural justice. See LA WARI FURNITURE & BATHS Ltd v F.R.N (2019) 9NWLR pt 1677 p.262 SC. It is restated in this case that fair hearing is not limited to ensuring compliance with the rules of natural justice, the twin pillars of which are “audi alteram partem” meaning the other party must be heard and “nemo judex in causa sua” meaning never be a judge in your own cause. It focuses on compliance with Section 36 of the 1999 Constitution. From the foregoing and looking at the steps taken by the defendants, I am of the view that the claimant was afforded opportunity to be heard in the circumstances that led to her termination by Exhibit CW5. Accordingly issue (b) is resolved against the claimant.

 

Issue (c)

Taking a close study of this case, particularly the entire conduct of the parties, the crucial determinant is the necessity to afford the claimant opportunity to put her case to the Medical Board for decision. Looking at the conduct of the claimant in the scenery of the case as it is revealed by the facts which also entails long absence from work place, it is crystal clear that the claimant is in breach of the terms of the contract of her employment by absenting herself from duty without leave rendering her liable. The defendants who were said not to have responded to the application for leave of absence without pay cannot be assumed an approval of the claimant’s application. It remains her duty to show to the court that the action of the defendants in the circumstances do not justify the imposition of the termination as was so done. In UDEGBUNAM v FCDA (2003) 10 NWLR pt 829 p.487 SC where the effect of the decision which deals with the rights of employees, conditions of service and of course, the scope of the employers disciplinary powers, it was held that an employer has the discretion to impose a lesser punishment than what is prescribed in the terms of employment, but that it has no power to impose a greater or a higher punishment than what is stipulated; And that the employee is entitled to all earned salaries and allowances during the period of his employment. The court affirmed that even if the dismissal or termination is upheld, he is still entitled to be paid any outstanding that is accrued prior to the termination. This is however based on the reality that in a contract of employment, the rights and liabilities of both the parties are wholly governed by the specific terms and conditions found in the contract/letter of employment in which vested right to accrued salaries cannot be denied. It is settled in employment matters that absence from duty without leave is considered a serious misconduct that attracts even dismissal from the service without formality and the onus shall rest on him to show that the circumstances do not justify the imposition of the penalty. This brings this court to look at paragraph B in the Offer of Appointment (Exhibit CW1) it is stated: “If at any time it is established to the satisfaction of the Chief Medical Director that you are not qualified for an efficient and effective service or unsuitable in other ways, your engagement may be terminated by giving one month notice in writing or by payment of one month’s salary in lieu of notice”

 

In the whole, I find that the invalidation/termination of the appointment of the claimant is not unconstitutional and cannot be declared null and void.

 

Issue (d)

Consequent upon the resolution of issues (a), (b) and (c) above against the claimant, the resolution of issue (d) depends on the nature of the relief or entitlement of the claimant that may flow consequentially. From the claims enumerated by the claimant numbered as 1-13, which in particular Relief one is for A declaration that the claimant is entitled to constitutional right of fair hearing as guaranteed and enshrined under ss.36 & 35 of the CFRN, 1999 as amended. The law is settled as stated in the case of TOKARI v MUTAWALE (2020) 17 NWLR Pt 1752 p.187-188 paras H-B that “When a plaintiff seeks for declaratory relief, he must rely on the strength of his own case and not on the weakness of the case of the defence except if the defendant’s case supports that of the plaintiff through evidence. The plaintiff must establish that he is entitled to the declaration sought”

 

It is proved that there is a contract of employment between the parties in its peculiar nature. The claimant due to her ailment was absent from her work over times, however some of the instances of her absence were covered by approval of leave of absence. However, it was the incessant absence that culminated into the defendant terminating the claimant’s appointment. In all, the claimant has not proved her case showing that there was no fair hearing accorded her. In GODWIN C. ONOVO & 3 ORS v FERDINAND MBA & 3 ORS (2014) 14 NWLR Pt 1427 p.391 @414 A-B and 428 paras B-D. The Supreme Court held on burden of proof in civil case that “by Sections 131,132 &133 of the Evidence Act, 2011, he who asserts must prove and whoever desires to have judgment in his favour must establish his case on a preponderance of evidence. Such a party therefore must lead credible and legally admissible evidence in order to succeed” It is clear from the foregoing that the claimant has not shown by her evidence that she is entitled to her relief one.

 

Relief two is for a declaration that the purported premature retirement/invalidation of her employment with the 1st defendant, communicated vide a letter dated 29/6/2022 is unconstitutional, null and void. It is in evidence before this court particularly in Exhibits CW4 and CW5 where the retirement/invalidation could not be rated as unconstitutional hence adequate reasons are given. A situation such as this is protected by the ILO on Termination of Employment Convention 1982 (No,158) Article 4, which provides thus: “The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service” It  reinforces the condition that an employee can only be terminated where there is a valid reason for the termination. Therefore, the reason for the termination must be connected with the capacity or conduct of the employee and or based on operational requirement of the employer’s business. The defendants’ position in justifying the premature retirement/invalidation is weightier than the claimant’s position, accordingly I refuse making that declaration.

 

Relief three is for an order setting aside the purported premature retirement/invalidation of the claimant’s employment with the 1st defendant. This order is not grantable in view of the findings earlier made above thus; it is refused.

 

Relief 4,5,67,8,9 and 10 are cumulatively for award of several heads that are drawn, calculated and tabulated without any documentary support. I find same speculative and all are hereby refused.

 

RELIEF 11 is for award of special damages for the psychological and emotional trauma suffered. I meticulously read through the evidence before this court, but I am unable to find particulars of such claim. It is by its nature that special damages must be specially, specifically and distinctively pleaded and proved. This is not done by the claimant; accordingly, this relief fails. Likewise, relief 12 which is for award of general damages as compensation must fail. The entire claims having failed, relief 13 follows same fate which is for cost of the action must as well fail. In the whole, the case of the claimant is without merit as such it must fail in its entirety. The case therefore stands to be and it is hereby dismissed. Parties shall bear their respective costs.

 

 

Judgment is accordingly entered.

 

 

 

…………………………………………..

Honourable Justice S.A. YELWA

(JUDGE)

 

LEGAL REPRESENTATIONS

1.     P.U. Uguike             -           -           for the Claimant

 

2.     Jonh Collins Odo   -           -           for the Defendants