IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP K. I. AMADI

DATED 11/06/2019                                 SUIT NO: NICN/LA/507/2013

DR. GBENGA OLORUNFEMI         ……………………… CLAIMANT

AND

1.   LAGOS UNIVERSITY TEACHING HOSPITAL (LUTH)

2.   LAGOS UNIVERSITY TEACHING

HOSPITALMANAGEMENT BOARD…………1^ST-3^RD DEFENDANTS

3.   CHIEF MEDICAL DIRECTOR (LUTH)

(PROFESSOR AKIN OSIBOGUN)

4.   MINISTER OF HEALTH…………………………….....4^TH DEFENDANT

Representation:

Prof. I. O Smith with A. Olorunfemi and Mike Orere for the claimant.

Imran O. Shitta-Bey with Ijeoma Iwuanyanwu for the 1^st-3^rd defendants

4^th defendant is un-represented

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a general form of complaint on the 25^th day of September 2013 and a statement of facts dated 24^th day of September 2013. The claimant claimed against the defendants as follows:

1.   A Declaration that the decision of the defendants withdrawing him from his Residency Training Programme with the Lagos University Teaching Hospital vide a letter dated 25^th June 2013 is illegal, null, void and of no effect whatsoever.

2.   A Declaration that the proceedings of the investigating panel set up about the 14^th March to investigate the claimant and others ultra vires the defendants were conducted in a manner contrary to the extant laws.

3.   A Declaration that the report of the investigating panels which forms the basis of the defendants’ decision to terminate the Claimant’s Residency Training Programme with effect from 25^th June 2013 is null and void in that the Panel in that the Panel and the committee is incompetent in law and their composition tainted with malice and bias.

4.   A Declaration that the Claimant is a bona fide rent paying tenant of the 1^st Defendant and he is entitled to statutory notices to quit him from the premises.

5.   A Declaration that the Investigating Panel has no power under the law to make or recommend a decision on the Claimant.

6.   An Order reinstating the Claimant to his Residency Training Programme with the 1^st defendant forthwith with all the rights and privileges attached thereto.

7.   An Order directing the defendants, particularly the 1^st defendant to pay all the full entitlements of the Claimant from the time of suspension till reinstatement and subsequently as long as he remains in the employment of the defendants.

8.   An Order of Injunction restraining the defendants or their agents and privies from unlawfully and forcefully ejecting or disturbing the Claimant from the enjoyment of his possessory rights of Flat 14, LUTH Compoud, Idi Araba, Surulere, Lagos State.

9.   General damages in the sum of ₦10,000,000.00 (Ten Million Naira) for injury suffered.

The 1^st to 3^rd Defendants filed their Statement of Defence on the 17^th January 2014, an amended Statement of Defence dated 22^nd October 2014 and a further amended Statement of Defence dated 12^th January 2018. The Claimant filed a reply dated 19^th February 2018 to the 1^st to 3^rd defendants’ further Amended Statement of Defence.

The 4^th Defendant filed a Statement of defence dated 27^th May 2014, but did not lead evidence in support or cross examine the Claimant.

FACTS OF THE CASE

The Claimant was employed/ admitted into a Residency Training Programme as a Senior Registrar II on Grade Level 13 through an appointment letter dated 17^th January 2012(exhibit A). He had his appointment terminated and also withdrawn from his Residency Training Programme through a letter dated 25^th June 2013(exhibit F), due to an alleged act of Negligence which led to the death of one late Mrs. Ronke Akingbehin on the 1^st March 2013.

The Claimant was queried on the circumstances surrounding the death of Mrs Ronke Akingbehin through a letter dated 5^th March 2013, and thereafter he was suspended through a letter dated 8^th March 2013 by the 1^st Defendant. On the 14^th March 2013 the 1^st Defendant invited the Claimant to meet with a Panel of Investigation about the circumstances leading to the death of Mrs. Akingbehin. Furthermore, on the 9^th April 2013 the Claimant and 21 others were invited to a meeting which the 1^st defendant called Extended Top Management Committee of LUTH and Federal Ministry of Health Representatives. Upon the Claimant appearing before the above-mentioned Panel and Committee, the Defendants acting on the recommendations of the said panels issued a Letter of Withdrawal dated 25^th June 2013(exhibit F), withdrawing the Claimant from his Residency Training Programme with the 1^st defendant. The 1^st- 3^rd Defendants also threatened to eject the Claimant from his official residential flat without the necessary statutory notice to quit.

The Claimant therefore instituted this suit against the Defendants based on the fact that the purported withdrawal was not done by the appropriate authority and it was done without affording him fair hearing.

TRIAL

Trial commenced on 2/3/2015, at the trial the Claimant testified for himself as the sole witness (CW1). He identified his two witness depositions on Oath dated 25/9/2013 and 4/2/2015 respectively and adopted them as his evidence in the trial. He later adopted a further Claimant’s written Statement on Oath and tendered about fifty (50) documents which were admitted and marked accordingly.

The claimant was extensively cross examined on 10/3/2015, 11/3/2015, 12/3/2015 13/3/2015 and on 18/5/2015 by the learned counsel for the 1^st-3^rd defendants. During cross examination the claimant testified that on the 1^st of March 2013, he was on duty at about 8;00am and at least 5 doctors were supposed to report at the Labour Ward including the Consultant Dr. Makwe in charge; who is the overall leader of the team, who did not resume until 11;00am, another Senior Registrar I Dr. Ekaidem also did not resume work until 12;00 noon, while Dr. J. O. Offor a Senior Registrar 1 on the roster to resume with him was drafted for elective caesarean section. That he was left to work with Dr. Sanusi (a Junior Registrar) and house officers.

That after handing over they commenced ward rounds at about 9am to 11am (2hours). According to the witness, at about 10:00 am Dr. Sanusi briefed him about Mrs. Ronke while he was reviewing other patients in Labour ward and he eventually reviewed Mrs. Ronke at about 11:00am. That the standard procedure for handing over is to move from cubicle to cubicle with an explanation on the condition of the patient. In addition, the practice also is that the junior registrar will see a patient first and then discuss with the Senior Registrar as the case was here.

That according to the Exhibit AK (Duty roaster) Dr. Offor was assigned to non-emergency surgeries, the consultant Dr. Makwe was to be consulting at Accident /Emergency on that day but he was not at the Accident/Emergency but turned up at the labour ward at about 11:00 am and was consulting.

 Furthermore, the witness testified that at the end of the Consultant’s ward round, the consultant outlined 3 emergency cases thus: Mrs. Tijani Kemi (Placenta Previa), Mrs Ronke Akingbehin (Previous Myomectomy) and Mrs.Bello Murayo (IUD). The witness testified that after the consultant outlined the surgeries, at about 12:00 noon Dr. Ekaidem who is a Senior Registrar and next in rank to the consultant told him that the Consultant called him on phone and told him that a patient (Audu Faith) with cervical cerclage be done first, that he (the witness) was already at the red line of the theatre to take in Tijani Kemi, Audu Faith was also at the red line, she was wheeled by the Anaesthetists (Dr. Olowu). The witness stated that he was not aware of Audu Faith’s case as she was wheeled from the ward (Ward C1 for Gynecological Patients) to the theatre and he was at the emergency section.

The witness was questioned about the hypocratic oath (an oath to give the best care to the patient) and if the consultant can make him go against it, he answered that he cannot question the instruction of the Consultant as it is final. That he was not the person that took the non-emergency case to the theatre, that it was his seniors Dr. Ekadeim and Dr. Offor. That he could not have questioned them but the non- emergency hindered him from proceeding with the emergencies.

Continuing his testimony under cross examination the witness testified that at the Panels he informed them of the phone call between Dr. Ekaidem  and Dr. Makwe but did not mention it in his reply to the query issued to him by Dr Makwe Exhibit C-C1. That the two Investigation Panels were set up to investigate his case and unravel the truth as to the death of Mrs. Ronke Akingbehin but their findings were based on falsehood and against the weight of evidence.

The witness testified that the number of surgeries per day depends on the type of surgery, that availability of blood is a prerequisite for surgery but as to whether a Patient would require blood transfusion during a caesarean operation is determined by the Consultant and Anesthetics. That the tests prescribed by Dr. Oluwo are the necessary pre-operational requirement for surgery.

In further response to Counsel’s question, the witness testified that Kemi Tijani had a major placenta previa either 3 or 4 and that the placenta previa case (Kemi Tijani) was more serious than Mrs. Akingbehin and the consultant confirmed it. That he cannot say the exact number of placenta previa he has operated on during his stay at LUTH but he has done some, under the supervision of the consultant.

The witness pointed at his entries on the photocopied case note(file) of Mrs. Ronke, at pages 10 and 14, but told the court that the beginning of his entry at page 10 has been removed also the end of his entry at page 14 was equally removed, that on the 2^nd to the last page operation note dated 1/3/2013 is his entry, also on the page titled Part Agreement to Investigation or Treatment.

At this point the learned counsel for the defendant sought to tender the photocopy of the case note(file) of the said of Mrs. Ronke Akingbehin (deceased). The learned counsel for the claimant objected to the rendering of a photocopy of the case note instead of the original copy, more so; when the claimant has alleged that his entries on the filed have been tampered with. Consequent upon that the Court made a specific on the defendants to produce and tender the original case note (file) of the said Mrs. Ronke Akingbehin (deceased). Thereafter the Claimant closed his case.

The 1^st -3^rd defendants called a total of 15(fifteen) witnesses a summary of each of their evidence is reproduced hereunder: 

MARIA MALOBI IKUDABO testified on 8/2/2016 as the DW1 by adopting her witness statement on oath made on the 13/5/2015 as her evidence in the trial.  Under cross examination, she told the court that she is a Chief Nursing Officer (Matron) in charge of the Labour ward theatre at the Lagos University Teaching Hospital as at 2013. She stated that she was posted to the Labour theatre in 2010.

That she was on duty on 28/2/2013 from 7:30 am and closed at 3:30 pm, and that she was also on duty on 1/3/2013 and closed at 3:30pm. The witness testified that she reviewed the original case note of the patient (Mrs. Ronke) that gave rise to this suit and that she documented on the Patient’s case note (file) through an observation paper (that is where the nurses write) and it is usually kept inside the Patient’s file. She testified that as at 6;30 am on 1/3/2013 late Ronke was already an emergency case because when she resumed at 7;00am, she sent for the patient to be sent to the theatre for surgery, but was told that the patient is now an emergency case because she started contracting in the ward which now became the duty of the doctor for emergency (the Claimant was in charge of emergency that day) and cannot be released to them for surgery, so they proceeded with the 2nd elective.

 Continuing her testimony she stated that an emergency was reported of placenta previa (Kemi Tijani), it was at this stage that she knew that the claimant was in charge of emergency and she went to look for him but was told he has gone to eat and when the claimant returned, he immediately went into the theatre for the emergency case of placenta previa.

That it was at this point that the late Ronke was wheeled to the theatre but could not go in because the Claimant was still operating the Placenta Previa case, That the Ronke was initially on elective surgery and the 1^st elective to be operated upon assigned to Dr. Ekaidem and Dr. Onokoya.

That the Doctor’s report is usually contained in the Patient’s case note (file) and that the case files of the three (3) patients were supposed to be at the medical records but because they were special cases she does not know where they are.

Furthermore, DW1 testified that the endorsement on page 10 of the CTC of the case file of Ronke on 1/3/2013 at 1:30 pm was not correct because as at that time, the claimant was not present to record that incident and that was why she went to look for him after informing Dr. Offor that the patient(Kemi) was bleeding. The witness stated that she is aware of what Doctors do when things go wrong, they begin to remove the original endorsements and contents of the file and start replacing with new ones, that in the instant case it happened on a Friday and by Saturday the following day, a request for the file was made and it was given out.

UGWUOKE ANTHONY EMEKA testified on February 15, 2016, as the 1^st- 3rd defendant’s 2^nd witness (DW2). He identified his 2 Witness Statements on Oath dated 3/10/2014 and 12/5/2014 respectively and adopted the 2^nd as his evidence in chief, admitted as DW2E. Five (5) documents were tendered through this witness.

Under cross examination, he testified that before deposing to his Statement on oath he checked the blood bank records on the 28/2/2013 but not that of 1/3/2013. That he was on duty on 28/2/2013 from 4pm to 8am on 1/3/2013. That there is a record book showing when blood samples are received from ward or porter/house officers and the documentation is done by the receptionist not the scientist. That there are two (2) record books for recording blood samples that have been cross matched and issued out for blood transfusion, the 1^st is the Issuing register and the 2^nd is the ready or green slip that is usually kept in the Patient’s case note(file). That the scientist usually signs after completing the process of cross matching. That he was not on duty when DW2E1(Incompatible Results of 1/3/2013) was made but in respect of DW2C (Incompatible Results of 28/2/13) he signed on the ready or green slip and that he was supposed to sign DW2C (Incompatible Results of 28/2/13 and 1/3/2013) but he did not.

Continuing he confirmed that in Exhibit DW2-E1 nos. 24 & 25 showed blood sample of Mrs. Ronke which was set up and cross matching started by 12noon on 1/3/2013. The witness stated that on the 28/2/2013 he cross matched the blood of Mrs. Ronke and set it up by 9:45 pm, labeled it emergency and further agreed that by paragraph 5 of his witness statement on oath as at 28/2/2013 Mrs. Ronke Akingbehin has not donated blood.

DR. MOJISOLA SANUSI testified on March7, 2016, as the 3^rd witness of the 1^st-3^rd defendants (DW3). She identified her witness statement on Oath dated 4/3/2016 and adopted same as her evidence in the trial. She testified that she is a doctor and registrar in the department of Obstetrics and Gynecology at the Lagos University Teaching Hospital.  Three (3) documents were tendered through her namely; the response of the claimant to the query issued to him, Patient’s consent form and purported certified true copy of the case note (file) of the said Mrs. Ronke Akingbehin (deceased) all marked as exhibits DF, DG-DG3 and DH-DH44 respectively.

During cross examination she testified that she resumed duty on 1/3/2013 at 8 am, that Dr. Ekaidem and Dr. Offor were not present and the consultant Dr. Makwe came in around 11;00am. That the Claimant was the only Senior Registrar in the Labour ward. The witness stated that Dr. Elesho handed over patients to them up to suite 3 and she opened suite 2 and she saw Mrs. Ronke and from investigation she arrived at the labour ward at about 6:30 am.

Consequently, that she took permission from the claimant as he was conducting ward round to review or examine the late Mrs. Ronke who had not been examined by anybody. That she worked with the claimant on 1/3/2013 and nobody (doctor, nurse or patient) came looking for the claimant, neither did the claimant leave the labour ward to go anywhere at any time. That there are two (2) cardiograph machines in labour ward, and one was already connected to the late Mrs. Ronke when the consultant came in, but when he came he asked that the cardiograph be changed to the one that can print a graph to show the fetus heart beat as the one connected to her earlier cannot print a graph, that it takes 30 minutes to print and interpret the print out.

 Furthermore, she confirmed that there was no way surgery could have been conducted on the late Mrs. Ronke without complete reading of the cardiograph, but it won’t affect the already made decision for emergency cesarean section as she had an indication of it. That she is aware that non-availability of theatre space delayed the operation of Mrs. Ronke as there was only one operating theatre that was functional and both emergency and elective cases were taken to that one theatre in turns.

 That Dr. Ekaidem was called upon to see the late Mrs. Ronke while the Claimant was operating on Mrs. Tijani and when Dr. Ekaidem reviewed the patient he instructed that the 2^nd theatre be opened but he was told that the theatre was not functioning. That he went into the theatre to see the claimant and came out and continued his ward round but she is not aware what they discussed.

That the maids can go to the blood bank and check the ready slips of cross matched blood and Mrs. Okonkwo (maid) went to the blood bank and said blood was not ready, but she does not know the name of the maid that went to collect the blood at last. That it was Nurse Ajala who informed her that blood was ready.

That at the 1^st panel she was shown DW2A (Cross match request form) but at the Joint Committee she was not shown any document. That at the joint committee she was called in together with Dr. Shekunde and at the 1^st panel she was called with the claimant, Dr. Makwe, Nurse Ajala and Mrs. Ijeabor. That it is true that the claimant tried to show the panel a text message from his phone, which she described as Nokia phone. But they said that they were not interested in the text message and the consultants interjected that what he said supersedes the text.

The learned counsel for the 1^st-3^rd defendants declared the DW3 a hostile witness. Consequently, he sought for and was granted leave to cross examine her. During the cross examination DW3 stated that she was aware that the Claimant did a ward round though she was not on the ward round and was not aware of any member of their team who was on the round. That the counsel for the 1^st-3rd defendant told her to tell the court that the Claimant never conducted any ward round. Her further answers reinforced her evidence above. Thereafter she was discharged.

IRENE CHINELO NWEZE testified on June 9, 2014, as DW4 by adopting her statement on Oath dated 18/5/2015 as her evidence in the trial.

Under cross examination she testified that she did not collect the patient’s anesthetic pack because, the patient started contracting and has turned into an emergency case. That the late patient (Mrs Ronke) was not seen on that 28/2/13 by an anesthetic. That at 6.00am she moved the late patient to the labour ward she has not done any of the essential requirements for surgery, because she turned into an emergency and it is at the emergency ward that those requirements will be fulfilled. That the blood bank staff did not call ward C4 to say that blood was ready for the late patient at any time. That she did not send any hospital maid to the blood bank on that 1/3/2013 as at the time of moving the late patient to labour ward to check if cross matched blood was ready. That she wheeled the late patient to the labour ward into a suit where she is supposed to stay.

Continuing she testified that the late Patient was supposed to be taken to theatre at ward C4 on elective surgery on that 1/3/2013. That the Patient complained of seeing stems of blood and abdominal pain. That some of the patients whose investigation were not ready have had their surgery cancelled. That concerning Elective Surgery, it is the relations of the patient that donate blood before blood will be cross matched for such patient and to her knowledge no relation of the late patient donated blood for her as at 28/2/2013.

That she did not inform any Doctor before moving the late patient to the labour ward, because immediately a patient starts contracting you move her to the labour ward that is the standard practice. The witness was thereafter discharged.

DR. A.O OLOWU testified on May 3, 2017, as the fifth witness (DW5). He identified his witness statement on Oath dated 22/5/2015 as his evidence in the trial.

Under cross examination he testified that on the 1/3/2013 the consultant anaesthetics in charge of labour ward was Dr. Menkiti and he does not know the exact time the doctor resumed duty on that day, that she was never invited to the panel but she was given a query.

Witness stated that when he arrived on 1/3/2013, he did not see late Ronke as she had been moved, only Faith Audu. Witness confirmed that Dr. Makwe brought the case file of Ronke to his call duty room to meet him. That he reviewed the late patient Mrs. Ronke after the consultant came to work and he cannot remember how long it took him to review the patient as he was recording after interviewing the patient, and as part of his anaesthetic review he is to review the patient’s case note too. The witness stated that he saw the late Ronke at 11:05 am and there was no result of investigation and that is why he started with NA (Not Available Investigation), because there was no investigation result as at the time he saw her, he then requested for the investigations (base line investigation) after sample was taken from the patient but he did not consent the late patient for surgery he only reviewed her. Witness stated he requested for full blood count an E & U as against Dr. Sanusi’s order for PCV and group and cross matching. The standard practice is full blood count, E & U which is a mandatory requirement for elective surgery and the patient was supposed to have had this examination before his seeing her for the first time. However, in emergency they take PCV results first while other results will follow. Witness stated that it was not important and necessary to know the result of the E & U that he recommended at 2:00pm before commencing surgery. That in some cases emergency surgery has been delayed by Anaesthetist because of non-availability of E & U.

Witness showed the court his entries on the case note of Mrs. Akingbehin front loaded in the Statement of defence dated 16/1/2014 and filed on 17/1/2014.Witness in response to Counsel’s question explained the acronym ASA ii and “ii”, that it is used to place risk or patient’s physical fitness for surgery, and for the late patient it ought to be ASA iie showing she was an emergency, although “e” was omitted but it does not change the fact that she is an emergency patient. “ii” is used for elective cases and witness agreed that there is a difference between ASA ii and ASA iie. That in Exhibit DK-DK1 the time the blood sample was collected is 10:30 am on 1/3/2013 received 12:10 noon printed 13:15 and the requisition no is 355036732 while the 2^nd one collected at 10:14am requisition no. is 355036712 received at 10:37 am and printed 12:26. (The reception here is at the Lab).

Reference to page 14 Exhibit DH-DH44 (case note), witness affirmed that he wrote that fasting guideline should be ensured as part of his plan, and fasting is a protocol required for every surgery whether emergency or elective. The late patient is expected to fast for 6 hours for solid food, clear fluid 2 (two) hours depending on when she had her last meal and her physical fitness for the surgery and that for the late Mrs. Ronke was good to go as she has fasted all night. Witness stated that the patient was 42 years old; that it is not necessary for her to do ECG but chest x-ray may or may not be. That the importance of the x-ray investigation for this patient is that it is a routine investigation for anybody older than 40years.

That no Anaesthetist was suspended or punished during the sitting of the panel on account of the death of the late Mrs. Ronke Akingbehin.

IYABO IKUEWUMI FOLASHADE testified on January 24, 2019, as the sixth witness (DW6). The witness identified the witness statement on oath dated 3/10/2014 and adopted same as her evidence in the trial. It was admitted and marked DW6E.

During cross examination witness stated that she resumed duty on 1/3/2013 by 2:30 pm and that (4) four nurses resumed duty for afternoon session with her on that day, that she said she took care of 2 patients (Ronke Akingbehin and Tijani Kemi) on that day 1/3/2013. That for a patient like Mrs.Ronke Akingbehin the standard procedure is to measure her blood pressure, pulse rate and respiratory rate every 10 to 15 minutes. That she did not document/ record her findings but her subordinate did, as Mrs. Ronke Akingbehin was very restless when she came into the theatre for labour wards so she had to stand beside her to ensure that she did not fall off the bed. 

Reference to page 3 Exhibit DH-DH44 (case note), witness identified the time written on the nurses’ chart that the patient’s blood pressure was checked at 14:45 pm, 14:55pm then no other record till15:45pm (1 hour interval). And that it is not her poor monitoring of the patient that killed her. The witness stated that she informed Dr. Ekaidem of the absence of foetal beat and he did not abandon the patient. That Dr. Ekaidem was in the labour ward and she called him from the labour ward because the foetal heartbeat was not heard and after she told him he stated that the heartbeat has been like that in the labour ward that they were using a monitoring aid (sunkey) to pick the foetal heartbeat. The witness stated that she could not have dictated to Doctor Ekaidem what he should do.

PATRICIA E. ONWUEGBULIE testified on May3, 2017, as the seventh witness (DW7). The witness identified her witness statement on Oath dated 3/10/2014 and adopted same as her evidence in the trial. One (1) document was tendered through her.

During cross examination the witness testified that she has being a ward nurse for 30 years and she joined LUTH in 2007. That there is a duty roaster in LUTH and her name was contained on the duty roaster for 1/3/2013. She resumed duty at 2:20 pm and that she wrote her deposition in accordance with her own timing, not the timing on the late Ronke’s case file. Continuing her testimony referring to paragraph 4 of her Witness Statement on oath, she said that when foetal heart is low or not heard it connotes an emergency and that all is not well with the baby. Witness testified that she did not document her findings as she had a senior colleague (Ikwuewumi F.I Chief Nursing Officer) who she reports to and once she cross checks, she documents it. But she is not sure if the Chief Nursing Officer documented as she (witness) did not witness such documentation, that she handed over the patient to the Chief Nursing Officer Ikwuewumi F.I, and went about her normal duty.

According to the witness, CNO Ikwuewumi F.I, she and Nursing Officer Gbadeyan were with the late Mrs. Ronke when she was trying to bear down, CNO Ikwuewumi F.I told the patient not to bear down and went to call Dr. Ekaidem. She stated that only one theatre was in use at that time and that an emergency caesarian section of Kemi Tijani was going on. The witness testified that she knows Dr Offor and Dr. Olorunfemi (the claimant) but she cannot remember precisely the doctors that operated on Kemi Tijani.

ZAINAB ABIODUN OLAYIWOLA testified on May 4, 2017 as the eighth witness of the 1^st-3^rd defendant. The witness identified her Witness Statement on Oath dated 3/5/2017 and adopted same as her evidence.

Under cross examination and in reference to Paragraph 6 of her Witness Statement on Oath she stated that resolving bleeding means that it is subsiding or reducing. That she was never invited by any panel to offer explanation as to the death of Mrs. Ronke but she was issued query regarding the death of Mrs. Ronke Akingbehin. Continuing her testimony, she stated that, she did not confirm or cross check the time she wrote in her oath from the Nursing Observation Chart in the case file of Mrs. Kemi Tijani. That Kemi Tijani was admitted on 1/3/2013 to Suite 8 but she is not aware when she was admitted into the labour ward as she only nursed her that day. The witness stated that she cannot remember; how many patients were assigned to her or in the ward, the number of nurses that resumed duty with her on the morning of 1/3/2013, the nurse in Labour Ward Theater that received Kemi Tijani when she wheeled her there and the fact that Kemi Tijani had a previous cesarean surgery in her previous delivery.

NURSE RACHEAL OLUREMI AJALA testified on May 9, 2017 as the 9^th witness (DW9). She identified her witness statement on oath dated 18/5/2015 and adopted same as her evidence in the trial.

 During cross examination the witness stated that what she told the panels she appeared before were the same thing, she stated that they faced several panels and in one of the panels all the nurses that attended to the late Mrs. Ronke sat together with the Claimant and were questioned at the same time. In her testimony she stated that she was assigned to a patient in Suite 3 on 1/3/2013 and because she was more stable, she spent more time with the late Mrs. Ronke and offered her companionship until she was transferred to the theatre Nurse. The witness affirmed that as a midwife she was duty bound to check the vital signs of a patient as she progresses but the late Mrs Ronke was very stable, only the foetal heart rate was been monitored with a CTG Monitoring Machine attached to the patient. According to the witness, the late Mrs. Ronke was handed over to her (witness) by CNO Agbayim, when she resumed duty on 1/3/2013 at 8:00am and that she did not check the case file to see whether grouping and cross matching has been done as it was not within her jurisdiction but that of the Doctors. Furthermore, the witness stated that, she did not document the instruction of Dr. Makwe (because his instruction is on the case note) and the review by the Anesthetist (because his, is attached to the case note) while Nurses note is strictly for Nurses/Midwifes Care rendered.

OLUSESAN OLAJIDE testified on June 15, 2017 as the tenth witness (DW1O). The witness identified his witness statement on Oath dated 22/5/2015 and adopted same as his evidence in the trial. He testified that he is the current Director Legal Services but was Deputy Director (Legal) as at 2013. Twenty-one documents (21) were tendered through him.

During cross examination he testified that they followed the Public Service Rules and the University Teaching Hospitals Reconstitution of Boards Act to the extent permissible with the circumstances of the case in dismissing the claimant. The claimant and other applicants including Dr. Sanusi and Olowu were interviewed into residency training by LUTH Management Board under the chairmanship of Dr. Omotayo Dairu in Sept 2011. But does not know whether the LUTH Management Board approved their appointment after that interview.

That by exhibit DW10 Prof Osibogun was not the chairman of the investigating panel set up by the minister through DW10T, but there were subsequent developments to that. Witness stated that they never showed the Claimant the petition written by Mr. Akingbehin (late Ronke’s husband), because it was a layman’s perspective of the events.

Witness confirmed that the claimant told the panel that the consultant Dr. Makwe sent him a text message that he had gone to look for Dr. Offor to join him in the surgery of the patient on ground and that, Dr. Offor confirmed from Dr. Olorunfemi, who ought to operate on the patients on ground whether they should go on with the cervical cerclage which was not an emergency.  And Dr. Olorunfemi gave them the go ahead to go on because Mrs. Akingbehin has no blood.

 Under re-examination witness said that it is customary that such panels are usually joint and presided over by the most senior official either from the Ministry or Host Institution.  In this case the Chief Medical Director Prof. Osibogun was the most senior officer.

DR. BABATUNDE ENITAN OGUNNOWO testified on July 11, 2017, as the eleventh witness (DW11). He identified his witness statement on oath dated 8/6/2017 and adopted same as his evidence in the trial. He testified that he is a Lecturer and Associate Professor in the Department of Community Health and Primary Care, College of Medicine, University of Lagos. Six (6) documents were tendered through him.

During cross examination witness stated that he certified all the documents tendered which were registration records of the Claimant with the University. That he was contacted in 2014 by LUTH Management to retrieve the academic records of the claimant in his department through the Head of Department (oral phone call from HOD). That he did not seek the consent of the Registrar or University before disclosing the records of the Claimant as in the exhibits. Witness confirmed that in every class of Masters of Public Health each student present, signs the attendance sheet and the lecturer counter signs to confirm the said attendance and the signed spaces are usually crossed out so nobody signs after the class.

Continuing his testimony, witness stated that he is not aware if the claimant attended the computer science lecture on 1/3/2013 and signed the attendance, or if the claimant deferred his studentship in March 2013 and could not have obtained 100% attendance in a course that ran after he deferred his studentship. Witness stated that he was not invited before any panel.

NURAT BOLA SHITTU testified on September 18, 2017 as the 12^th witness (DW12). Witness identified her witness statement on oath dated 8/6/2017 and adopted same as her evidence in the trial. She testified that she is the Chief Nursing Officer (Matron) attached to the Labour Ward at LUTH.

During cross examination, witness testified that she resumed at after 2pm on 1/3/2013 and 8 patients were handed over to her by the morning shift group but cannot remember how many nurses were for morning shift. That Nurses in each shift are duty bound to document events of patients that came during their shift and write report on what they witness and documented. That Exhibit DW7 (Labour Ward Report) is an official document of LUTH and that they started to run a line across the Report after they discovered that some of the leaflets have been torn off. Witness testified that she never attended any panel set up by LUTH.

DR. CHRISTAIN MAKWE testified on October 6, 2017 as the thirteenth (DW13) witness. He identified and adopted his Witness Statement on Oath dated 22/5/2015 as his evidence in the trial. He testified that he is a Medical Doctor, a Consultant Obstetrician and Gynecologist at LUTH. During examination in chief he identified entries that were not on the late Mrs. Ronke’s case note when he first reviewed it and also identified the entries of Dr. Olorunfemi Gbenga and Dr. Sanusi on late Mrs. Ronke’s case note but he stated that he disagreed with some of the entries therein.

During cross examination, witness stated that Mrs. Akingbehin was registered under him and that the standard protocol for the cadre of staff to perform such surgery on Kemi Tijani and also Mrs Ronke was Senior Registrars (who comes first) then consultants. And that on 1/3/2013 when he resumed, the late Mrs. Ronke was already an emergency but he did not proceed with the surgery immediately because it was senior registrars that perform such surgery and that was the cadre of the claimant and he could perform the surgery alone with a junior registrar. He affirmed that on the 1/3/2013 he sent two text messages to the Claimant thus:

“Good day, hope you have documented all my instructions and plans, I have asked Dr. Offor on elective to assist you in the placenta previa and previous myomectomy”

“Please I want a copy of the patient’s case note, I will collect it first thing tomorrow, thanks”

Witness stated that he was not on suspension when he attended the 1^{st and} 2^nd investigation panels and that he and Dr. Ekaidem (who claimed that he called him on phone and he permitted him before he conducted the Cerclage operation which is not true) were called individually to the 1^st panel but at the 2^nd panel they were called together with other staff including the claimant.  

MRS OLAYINKA SHOBAYO testified on November 16, 2017, as the fourteenth witness (DW14). The witness identified her witness statement on oath dated 16/11/2017 and adopted same as her evidence in the trial. She testified that she is the Principal Laboratory Scientist of LUTH.

She identified in Exhibit DW10P-P1 (LUTH Blood Bank Register), the entry relating to late Mrs. Ronke on 28/3/2013, LAB No. 3967 and also the Grouping and Cross-Matching Registers. One (1) document was tendered through her, that is; the Patient’s Blood Grouping Register (Exhibit DW14A-DW14A2), on the exhibit witness identified the entry relating to late Mrs. Ronke on Afternoon/Night Call duty of 28/2/2013 serial No. 26 which shows that it has been worked on as B positive, handwriting of the scientist Tony Igbokwe.

During cross examination, witness testified that she was on duty (morning shift) on 1/3/2013 but was not on call, she stated that they run three (3) shifts at the blood bank thus: scientists run 2 shifts, morning and call while the other cadres run 3 shifts.

BISOYE RANSOME KUTI testified on November 16, 2017 as the fifteenth (DW15). The witness identified her witness statement on oath and adopted same as her evidence in the trial. She testified that she is the Assistant Chief Administrative Officer (Legal) at LUTH. 8 documents were tendered through her.

Under cross examination, that Doctors in LUTH, Resident Doctors are not pensionable as they are permanent staff. That the document addressed to all CMDs/MDs of Federal Tertiary Hospital dated 13/9/2017(Exhibit DW15H) is inclusive of LUTH. This witness was discharged and the 1^st and 3^rd defendants closed their case and the parties filed their final written addresses except the fourth defendant who refused and or abandoned this case.

At the conclusion of hearing on 16^th November 2017, the respective Counsel to the parties were ordered to file and exchange Final Written Addresses. Thereafter the parties adopted their final written addresses on 11^th of February, 2019, this judgment could not be delivered within the 90 days window allowed for delivery of judgments for reasons stated in my letter to the Chief Justice of Nigeria in that regard.

ADDRESS OF THE LEARNED COUNSEL FOR THE 1^ST-3^RD DEFEDANTS.

The final written address of the 1^st to 3^rd defendants was dated and filed on the 15^th May 2018; the learned counsel for the 1^st to 3^rd defendants raised ten (10) issues for determination by this Honourable court to wit-

1.   Whether the Claimant’s Residency training post qualified as an employment with statutory flavour that can entitle him to seek declaration that the decision withdrawing him from the programme was illegal, void and of no effect?

2.   Whether the Claimant’s faulty judgement and omissions delayed the surgery of late Mrs. Akingbehin, which delay resulted in the death and that of her unborn baby?

3.   Whether the Claimant’s acts or omissions in the management of late Mrs. Ronke Akingbehin amounted to negligence and is breach of contract, thereby entitling LUTH Management to summarily bring his contract (on probation) to an end?

4.   Whether the proceedings of the first investigative panel set up on 14^th March, 2013 were ultra vires in view of the terms of Residency Training Contract?

5.   Whether the Claimant was charged with misconduct and subsequently subjected to an unfair disciplinary hearing following the death of late Mrs. Akingbehin and her unborn baby?

6.   Whether the powers of LUTH Management Board properly devolved upon the Federal Minister of Health following dissolution of the Management Board? If so was referral to the Minister vide LUTH letter dated 11^th March, 2013 (Exhibit DW10H) for his directive, lawful and in order?

7.   Whether the Claimant has established that a Board was lawfully reconstituted on 23^rd of April, 2013 and that a reconstituted Board was in place by 25^th June 2013 when he was withdrawn from Residency Training Programme?

8.   Whether the joint investigative committee (“Joint Committee”) was set up with the knowledge and approval of the Honourable Minister and thereby competent in law to investigate and report to the Minister?

9.   Whether disciplinary proceedings under the Public Service Rules applied to the Claimant and where so, to what extent?

10.                Whether the Claimant can lawfully continue in occupation of Flat 14, LUTH Compound, Idi Araba, Surulere, Lagos, accommodation provided by the 1^st and 2^nd Defendants to the Claimant while on the Residency Training Programme?

On issue one; the Counsel submitted that the general rule dating back to the English case of De Francesco v Barman (1890) 43 ChD 165 is that Courts will not force a willing employee on an unwilling employer, neither will it force an unwilling employee on a willing employer. Among other reasons, this is based on the general principle that a court will not grant specific performance of a contract of service since it cannot guarantee its observance. Quoting Olaniyan v. University of Lagos (1985) 1 A.N.L.R.363 at 394 Oputa J.S.C,  counsel submitted that this clearly implies that there may be circumstances crying out for a declaration .According to his Lordship, such special circumstances will arise “where the employee has a legal or statutory status which puts his case over and above the ordinary master and servant relationship”.

Arising from the ratio decidendi of Olaniyan v. University of Lagos (supra), the question in the instant case is whether the claimant was an employee who had legal or statutory status which put his case over and above the ordinary master and servant relationship?

Counsel went further to state that to establish this, the claimant will need to satisfy two conditions. First, that he was an employee of the 1^st Defendant. Secondly, that his relationship with the 1^st Defendant was protected by some statutory provision which forbade termination of his contract in the way and manner it was done.

Counsel argued that it is the case of the 1^st to 3^rd Defendants that the Claimant was not an employee but rather a post graduate medical student in training, notwithstanding that he was paid salary to compensate for services rendered as part and parcel of his training contract.

Counsel submitted that, the Residency Training Contract (Exhibit A-A2) is most unequivocal. From the title OFFER OF ADMISSION INTO RESIDENCY TRAINING PROGRAMME (underlining supplied) to its opening paragraph, then unto paragraphs 1,2,3,3 (a), 3(d), 4, 5, 6, 7, 10. The operative expression used in almost every paragraph is ‘admission’ rather than employment and ‘training’ rather than job or employment to convey in clear terms the very nature of the contract (admission to training) and the status of the Claimant. That nowhere throughout Exhibit A-A2 is there any mention of ‘employee’ or ‘employment’, or ‘job’, or mention of anything to suggest that the contract was one of employment.

That codifying the status of the claimant, the University Teaching Hospitals (Reconstitution of Boards, etc) Act in Section 19, defines ‘Medical Student’

As a student whose course of instruction is

(a) designed to enable him qualify as a medical practitioner;

And those whose course of instruction is-

(b) designed for further training of medical practitioners.

That the Claimant himself admitted this much when he stated at paragraph 6 of his Statement of facts dated 24^th September, 2013 that: –

 ‘The 1^st defendant as a Training Institute runs Residency Training Programme, which is a post-graduate training for licensed Medical Practitioners to become Consultants in their chosen field..’

That Paragraph 3 (d) of Exhibit A-A3 acknowledges this element of service in the context of training wherein it stated that: –

 ‘in addition to the above conditions, you are expected to perform satisfactorily and efficiently in training and service’.

Counsel argued that the peculiar nature of Residency Training meant that as students they learned as they worked.  Thus, a Junior Registrar learns from Senior Registrars and Consultants while a Senior Registrar learns from Consultants above him. Senior and Junior Registrars are expected to carry out duties at their level of competence unsupervised while being supervised at tasks above them. The service element however does not turn the contract into an employment nor turn trainee into an employee.

On issue 2 the learned counsel,  submitted that in Paragraph 17 of the Claimant’s Statement of Facts and Witness Statement, the Claimant accepts the fact that if the less complicated and less urgent case of cervical cerclage had not been placed ahead of more urgent cases of Mrs. Tijani, Mrs. Akingbehin and Mrs. Bello, the loss of life of Mrs. Akingbehin would have been averted.

That the Claimant sought to shift responsibility to the consultant by alleging that it was the consultant who by improper motive and abuse of discretion placed the elective patient ahead of the emergency patients. That Claimant failed to prove the above by not listing as a witness or attempting to subpoena Dr. Ekaidem whose testimony would have assisted the court in determining whether or not he indeed received a phone call from Dr. Makwe by which he directed a change in the order of surgeries. Counsel submitted that Claimant’s faulty judgment and omissions delayed the surgery of late Mrs. Akingebhin, which delay resulted in patient’s death and that of her unborn baby. In the circumstance of this case, the Claimant is unable to excuse himself by citing only one functional Labour ward theatre available.

On issue 3 Counsel submitted that of relevance is Rule 29 of the Code of Medical Ethics (CME), 2008 which, inter alia, states:

“A practitioner shall see and attend to all patients on admission under his care as frequently as their conditions demand and record in the case notes relevant clinical findings at each visit”.

 Counsel submitted that based on common law ‘duty of care’, Rule 29, CME imposes an obligation on the practitioner to see and review a patient under his care, to treat in a timely manner and document his findings in the case notes.

Continuing counsel argued that Rule 29.3, CME deals with Emergency Admissions and states:

“Every emergency admission should be seen by the Doctor or Dentist on call immediately, certainly not later than 4 hours after admission and where appropriate, by the Consultant on call within 12 hours”

Counsel submitted that the Claimant throughout the case, wrongfully attempted to shift responsibility to the Consultant by insisting that the consultant ought to have been around earlier. That Rule 29, CME, clearly places no such responsibility on the Consultant. Rather, the said Rule distinguishes between Doctor on call and consultant on call, and requires the former to attend within 4 hours while the latter is to attend within 12 hours, if need be. That the Claimant had a duty to see and attend to Mrs. Akingbehin as frequently as her condition demanded. Further, by Rule 29.3, this duty was to see and attend to Mrs. Akingbehin (an emergency patient) immediately but no later than 4 hours after admission. The Consultant was only required to see the patient within 12 hours if need be.

Counsel submitted that the Claimant failing to attend to late Mrs. Akingbehin who needed immediate attention, the Claimant was in multiple breach of the Code of Medical Ethics, 2008 particularly Rule 29.

On issue 4, Counsel submitted that in maintaining its public duty as a major source of qualified medical personnel for the health sector, Lagos University Teaching Hospital continued to function as a training institution notwithstanding that its Board had been dissolved on 19^th October 2011. That based on the above, LUTH Management on behalf of the Board, offered the Claimant admission into the Hospital’s Residency Training Programme via a letter dated 17^th January 2012 (Exhibit A-A3) and subsequently admitted the Claimant on behalf of the Board. By necessity, LUTH Management was compelled in the absence of the Board to set up an Investigative panel to look into the circumstances surrounding the death of late Mrs. Akingbehin. As part of this process which required prompt action given that health and safety of the public was involved, Management issued queries, received responses, carried out suspensions as deemed necessary to commence a process of restoring order and confidence in a major part of the health sector pending the Minister’s intervention.

Counsel submitted that Management is competent to set up a panel to investigative circumstances surrounding the death of late Mrs. Ronke Akingbehin, including reviewing the role of practitioners involved in the Management of the patient.

On issue 5, Counsel submitted the Claimant’s allegations that he was denied fair hearing are based on a wrong view taken of the entire investigative process.  Counsel argued that the Claimant was not singled out for query, invitation and investigation. Rather all persons involved with the management of late Mrs. Akingbehin were queried and interviewed with a view to determining the circumstances that led to the death of the late patient. Part of the investigation was to examine the roles of staff with a view to determining professional appropriateness.

Counsel stated that the terms of reference of the Panel confirm are:

·        To investigate the complaints as presented with a view to determining the actual situation that led to the death of late Mrs. Akingbehin Ronke

·        To examine the roles of our staff with a view to determining professional appropriateness

·        To identify any staff who has been negligent and recommend disciplinary measures.

·        To make any recommendations that may be relevant in this case.

Counsel submitted that in relation to the investigation of the Joint Committee, the following documents confirm its inquisitorial nature:

LUTH Internal Memorandum dated 9^th April, 2013 (Exhibit DW10K) invited the Claimant and others to a meeting with the Joint Investigative Committee to further consider the report of the Investigative Panel on the circumstances surrounding the death of the late Mrs. Ronke Akingbehin. As laid out in Exhibit DW10L14, methodology adopted by the Joint Committee included study of the case notes and interview of staff regarding their role in the management of the late patient.

Counsel submitted that within the terms of reference of each investigative body, the Claimant had good opportunity to be heard, while the allegations of bias are farfetched and unproven. At the same time, the investigation was a means of evaluating the performance in training and service of the Claimant and other trainees on probation.

On issue 6, counsel submitted that it is the defendant’s case that this was not a matter to be referred to the Board in view of the express powers conferred on Management by the training contract; particularly in view of the fact that probation is ordinarily the responsibility of Management to administer.

Arguing further counsel submitted that the claimant was given further opportunity to be heard through a referral to the Honourable Minister of Health in the absence of the Board. The question that arises from this is whether the referral was lawful if indeed necessary?

Counsel submitted that on the 19^th October 2011, President Goodluck Jonathan dissolved the Boards of Federal Government owned Teaching Hospitals, Agencies and Parastatals, including the Lagos Teaching Hospital Management Board (1^st Defendant). That by Circular ref. no. SGF.19/S.81/XIII/704 dated 20^th October 2011 (Exhibit DW10A-2) signed by Anyim Pius Anyim, GCON, Secretary to the Government of the Federation, the Presidency confirmed the dissolutions and directed Chief Executive Officers of concerned Parastatals in the interim to refer matters requiring the attention of their Boards to their respective supervising Ministries.

Counsel submitted that upon dissolution of LUTH Management Board (a public body) on 19^th October 2011, the powers exercised by said Board, being executive powers, reverted to the President as custodian of all executive powers under the Constitution. By virtue of Section 5 (1) Constitution of the Federal Republic of Nigeria, 1999 (As amended), the President is at liberty to delegate such powers to the Minister supervising the Health sector as done through Circular ref. no. SGF.19/S.81/XIII/704 dated 20^th October 2011 (Exhibit DW10A-2).

Counsel submitted that by reason of the above, the referral by LUTH to the Minister of Health via a letter dated 11^th March, 2013 (Exhibit DW10H) for the Minister’s directive was lawful and in order. 

On issue 7 the counsel submitted that on the 23^rd April, 2013, President Goodluck Jonathan in a reconstitution exercise appointed 5 members (including a Chairman) for each of the Boards of Teaching Hospitals. That the said reconstitution was however incomplete as Section 2(1) of the University Teaching Hospitals (Reconstitution of Boards, etc) Act of 1985 required 13 members to constitute each Board.

On the composition of each Board, Section 2 (1) states:

Each Board shall consist of a chairman who shall be appointed by the President on the recommendation of the Minister and the following other members, that is to say-

(a)The chief Medical Director of the hospital

(b)                One representative of the Federal Ministry of Health

(c) Three persons nominated by the Minister to represent a wide variety of community interest in health matters

(d)                One representative of the medical profession not being a person who is a member of the teaching staff of any university

(e)One representative of the senate of the associate University

(f)  One representative of other professions in the health field, not being a staff of the Hospital concerned

(g)                The Dean of the Medical School or the Provost, College of Medicine of the Associate University, by whatever other name called

(h)                 One representative of the Ministry of Health of the State in which the Teaching Hospital is situate

(i)  The chairman of the Medical Advisory Committee of the Hospital concerned and

(j)  One representative of the Vice-Chancellor of the associate University

Counsel submitted that the language of the above section being imperative, the Act mandated the appointment of 13 officials (including a chairman) to constitute each of the Boards. The President only appointed 5 officials and no more, by this 1^st to 3^rd defendants submit that the attempted reconstitution of the Boards of Teaching Hospitals on 23^rd April, 2013 is inchoate, incomplete and not in accordance with the provision of the enabling Act. That the claimant failed to prove that a Board had been constituted as required by Statute by the date he was advised to withdraw from the residency training programme. Counsel urged the court to find that the disciplinary process was lawfully commenced by the Minister and report received by him before a Board had been constituted in accordance with Statute.

On issue 8 the Counsel submitted that by Exhibit DW 10 T, the Minister informed of the composition of an Investigative/Disciplinary Committee and requested LUTH Management to accord them necessary logistics to enable them carry out the important assignment. That members of the committee visited LUTH and adopted a format which involved a joint sitting with members of the LUTH Top Management which was chaired by the most senior official; this was known as the Joint Committee of Representatives of the Federal Ministry of health and the Hospital’s Top Management. That Exhibit DW10M-1 confirms that the transformation to a joint committee was with the knowledge and approval of the Minister.

 That the DW10 testified on the 15^th June 2017, that:

“It is customary that such panels are usually joint and presided over by the most senior official either from the Ministry or Host Institution. In this case, the Chief Medical Director, Professor Osibogun, was the most senior officer.”

That the above is consistent with Section 8(3) of the University Teaching Hospitals (Reconstitution of Boards, etc) Act of 1895, which empowers the Board (in this case the Minister) to appoint members of the hospital management as members of a disciplinary committee.

On issue 9 Counsel submitted that the Public Service Rules do not apply in this case as the 1^st and 2^nd defendants are government parastatals excluded from the purview of the public service rules.

(Rule 010101 Federal Government Public Service Rules), states that

“it shall be the duty of every officer to acquaint himself/herself with the Public Service Rules, other regulations and extant circulars. These Public Service Rules apply to all officers except where they conflict with specific terms approved by the Federal Government and written into the Contract of employment or letters of appointment’  

Public Service Rules can only apply in the absence of internal rules and regulations. This is not the case here since the Claimant’s training was governed by terms of the Residency Training Programme as written in his letter of admission into the programme (Exhibit A-A3). That though the Public Service Rules did not apply, the disciplinary procedure adopted was nevertheless in substantial conformity with provisions of the Public Service Rules Chapter 3, Section 2 at 030201, 030301

On issue 10, Counsel submitted that the claimant’s lawful occupation of Flat 14, LUTH Compound came to an end without requiring a notice to quit since it was conditional upon remaining on residency training programme. That the Court of Appeal held in F.C.D.A v. Nwanna (1998) 4 NWLR (PT. 544) 73, that in such situation, the right to accommodation vanishes at the termination of the contract of service notwithstanding any court action for wrongful termination of said contract. Per Salami J.C.A at page 83

The question is whether the occupation is subservient and necessary for the service? If it is, the occupation is that of master, if it is not, the occupation is that of the servant F.C.D.A v. Nwanna (supra). Counsel submitted that the claimant’s right to occupy LUTH Staff quarters at Flat 14, LUTH compound, Idi Araba, Surulere, Lagos became extinguished upon his withdrawal from the Residency Training Programme, without requiring a formal notice to quit.

In all, the 1^st to 3^rd defendants urged the Honourable court to dismiss the Claimant’ s suit as unfounded and award cost in favour of the 1^st to 3^rd defendants.

ADDRESS OF THE LEARNED COUNSEL FOR THE CLAIMANT.

In his final written address dated and filed on 2^nd November 2018, the learned Counsel for the Claimant raised eight (8) issues for determination thus:

1.   Whether or not the contract of employment and training between the Claimant and the Defendants is not guided by statutes or whether the employment and training is without statutory flavor.

2.   Whether or not the procedure adopted by the defendants who are statutorily established training institution in withdrawing/dismissing the claimant from his residency training violate and or breech his right to fair hearing and or other rules of natural justice as enshrined in the constitution of the Federal Republic of Nigeria 1999 as Amended.

3.   Whether or not the purported letter of withdrawal of the 1^st defendant dated 25^th June and served on the claimant on 27^th June 2013 was lawful and in compliance with applicable statutory requirements guiding the disciplinary measures against the claimant who is a resident doctor in the 1^st defendant hospital, a health establishment and Federal government parastatal that was statutorily established

to train medical/health personnel and offer medical service to public.

4.   Whether or not the defendants have made out and proven a case of negligence/misconduct/persistent inefficiency against the Claimant, who is a senior registrar II working under supervision of consultant obstetrician in the case of the death of late Mrs. Ronke Akingbehin to warrant the withdrawal or dismissal of the Claimant from his residency training post

5.   Whether or not the claimant is entitled to reinstatement (with full training privileges, full salaries and other entitlements) to his position as senior registrar in the 1^st defendant from date of suspension and whether it is equitable and just for him to be allowed to conclude his residency training that was unlawfully and unilaterally truncated without justification by the defendant.

6.   Whether or not the Claimant is entitled to general damages of ₦10 million for the injury suffered including the delay in the conclusion of his residency training programme by the defendants.

7.   Whether or not the claimant is entitled to be allowed unfettered access and possessory right to flat 14 LUTH staff quarters till at least 6 months after the conclusion of his residency training programme by the defendants.

8.   What quantum of cost will be appropriate to be awarded against the defendants in this case?

In respect of issue 1, Counsel submitted that an employment is said to have statutory flavour if the said employment or contract of service is one in which the terms or tenure of the employee is provided for and protected either by statute or regulation made thereon. Counsel referred to Oloruntoba-Oju v Abdul-Raiteem (2009) ALL FWLR (Pt 497), 1 at 42-43, paras G-B Where the Supreme Court held as follows:

where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made there under, it is said to be a contract protected by statute or in other words, an employment with statutory flavour. The question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute.

Counsel argued that the relationship between the claimant and the defendants can be construed based on the following Statutory Provisions and exhibits.: Sections 5 and 9 of the University Teaching Hospitals Reconstitution of Boards Act, (ii) Rules 160101 , 160102, 160103 and Rules 160201 (a), 160301, 160401, 160501 and 160502 0f the Federal Government Public Service Rules ( 2008) (Exhibit AC); (iii) Letter of Offer dated 17^th January 2012 (Exhibit A): (iv) Pages ii (preface) and 217 (item 2.3.2 under ‘ MEDICAL OFFICER CADRE) of the Federal Republic of Nigeria Schemes of service Revised 1^st May, 2000 (Exhibit AG) (v) The Integrated Pay Roll and Personnel Information System (IPPIS) Certificate (Exhibit T): (vi) paragraphs 4 and 6 on pages 2 and 3 of the Memorandum of Terms of Settlement between NARD and Government functionaries (Exhibit DW15H); and (vii) Claimant’s pay slip (Exhibit S). Counsel submitted that from the above-mentioned statutory provisions the employment and training of the claimant had statutory flavour.

 Continuing counsel argued that the opening statement of the Letter of Offer dated 17^th January 2012 (Exhibit A), stated that the claimant is a senior registrar II being paid full salary on the Consolidated Medical Salary Structure – CONMESS of the Federal Government Nigeria (Clause 1), pages ii (preface) and 217, item 2.3.2 under MEDICAL OFFICER CADRE of the Schemes of Service (Exhibit AG) for established pensionable staff  stated that a senior registrar II is a medical doctor that is working in a hospital under supervision of a consultant. Clause 3d (“…in training and service…”) and 8 (Before you are allowed to practice in this Hospital…’) of Exhibit A, also confirmed that the claimant as senior registrar II was practicing medicine, offering clinical services and also training to become specialist.

That Clause 5 of Exhibit A states thus:

All resident Doctors are subject to the Hospital Disciplinary Laws and Regulations.

Counsel submitted that by Clause 5 of Exhibit A, the 2^nd Defendant willingly incorporated the disciplinary measures in Section 9 of the Reconstitution of Boards Act and Public Service Rules 2008 into the letter of Offer of the Claimant. Continuing further counsel argued that in Exhibit DW10C provides that the claimant and others resumed duty not classes.

The 3^rd Defendant also admitted and endorsed the integrated Pay Roll and Personnel Information System (IPPIS) Certificate Exhibit T of the claimant affirming that the claimant is an employee of the 1^st defendant and entitled to be paid his emolument directly and electronically from the Federation account, the claimant was also issued a staff identity card with staff number 4813 & also allocated a staff quarters on assumption of duty.

That in Exhibit D the defendants stated that the claimant was suspended from work confirming he is an employee of LUTH. Thus paragraph 3 of Exhibit D stated thus: you are hereby suspended from duty….”) and paragraph 4 of the same Exhibit D stated’ during the period of your suspension from work….” DW 10 THE Director of Legal Services to the 1^st defendant under cross examination on applicable disciplinary laws stated thus:

Did you follow any law or rule in dismissing the Claimant?

He answered:

We followed the Public Service Rules and the University Teaching Hospitals Reconstitution of Board Act…..

Counsel submitted that the defendants having engaged the services of the Claimant to perform clinical duties, paid him full salaries (not stipends), confirmed his IPPIS certificate as a staff of the Federal Government, issued him a staff identity card, investigated him as every other staff of the Hospital in the case at hand and pleaded and led evidence that the Public Service Rule and the  University Reconstitution of Boards Act applied to discipline him, cannot now renege on the applicability of the same statute at the final written address stage. They are caught by the doctrine of estoppel by conduct. Counsel urged the court to hold that the contract of service and training between the Claimant and the defendants is one with statutory flavour.

On issue 2 Counsel submitted that Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:

“in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

That instances where the claimant was not given fair hearing are as follows:

That the query letter dated 5^th March 2013 issued to the Claimant stated that a “report” was received and Mr. Akingbehin, the husband of the deceased was pleaded to be the complainant, but the said report was neither given to the claimant for his reaction or tendered before the court.

Also, the DW10, under cross examination stated thus:

Q: ‘Did you show the petition of Mr. Akingbehin to the Claimant?’

DW10: ‘No, we did not because it was a lay man’s perspective to the events’.

Secondly the Claimant was given just 24 hours to respond to a query that may lead to his dismissal, counsel referred to the case of H.U Mbaso v. University of Lagos & 10 Ors. Suit No. NICN/LA/284/2012.

Continuing counsel argued that the defendants failed to follow the doctrine of natural justice of Audi alteram partem (hear both sides) and Nemo Judex in causa sua (a man cannot be a judge and a party in his own case, nor sit on appeal over his decision).

Thirdly, that the Association of Resident Doctors, LUTH by a letter dated 18/3/2013 Exhibit AJ indicated interest to be observers at the proceedings of the Panel but the Defendants deliberately refused to oblige the request of the Association.

Fourthly, the claimant at the sitting of the panel was not shown or confronted with any document throughout the sitting of the Panel. Even, the purported blood bank records which form the fulcrum of the claimant’s withdrawal was not shown to him. That the DW10 Olusesan Olajide, under cross examination confirmed thus:

Question: ‘’Did you show the Claimant any record from the blood bank showing that                 blood was ready?’’

Answer: ‘’There was entry in the case note that blood was ready.’’

Question: ‘’Did you show the Claimant?’’

Answer: ‘’I need not to draw his attention to it because the entry is on the case note… it was not shown to him’’

Fifthly the Claimant informed the panel about the fact that he conducted ward round from 9am till 11am. Testimony of DW3 Dr. Sanusi, the cross examination of Miss Ajala (DW9), documentary evidence of the case files of patients treated in labour ward all confirmed it. However, the investigative panel maliciously refused and or neglected to record this in the testimony of the Claimant.

Sixthly the Claimant again by his pleadings and under cross examination affirmed and maintained the fact that the consultant Dr. C.C Makwe (DW13) gave order in which the three surgeries should be done with. This was confirmed by the consultant through text message that he later sent to the Claimant on that day. The panel report did not record the claimant’s account and the text message that was shown to the panel members. (Exhibit DW10J-58)

Seventhly, DW10 and DW3 confirmed under cross examination that the claimant showed the panelists the said text message sent to him by the Consultant Dr. Makwe (DW13), confirming the order of surgery of the patients. But the panel did not record it. DW13 (the Consultant), confirmed at the trial that he sent the said text message in issue to the Claimant.

Eighthly, the investigative panel documented at page 25 paragraph V of Exhibit DW10J-58 that the Claimant ordered Dr. Ekaidem and Dr. Offor (who incidentally were his senior colleagues) to conduct the cervical cerclage before the emergencies.  Whereas, DW10 admitted that Dr. Ekaidem informed the panel that it was the consultant, Dr. C.C Makwe that ordered him (Dr. Ekaidem) to conduct the elective cervical cerclage before the commencement of the emergency cases.

Ninthly, counsel submitted that Nurse Nweze (DW4) did not participate in the first panel as she stated under cross examination that she met with only 3 panel members whereas the panel members were 7 on record. Furthermore, DW4 couldn’t mention name of the head of nursing, Mrs. Bastos who was part of the panel members as she did not know any of the 3 member panel that interviewed her.

Counsel submitted that from the aforementioned that the defence witnesses DW3, DW4, DW5, DW6 discredited and contradicted material portions of the reports per their testimonies in Exhibit DW10J-58. It is trite that when there are material contradictions as it occurred between the testimony of the witnesses in court and their testimony in the panel’s report and even in the case files or documents tendered by the defendants, the court cannot exercise discretion to take one and leave the other. All such evidence must be disbelieved and discountenanced. Osadim v. Taiwo (2016) 6 NWLR (Pt. 1189) 155 at 180, para.C-E.

Counsel argued further also, that the breaches of the claimant’s right to fair hearing was further extended by the joint committee meeting as the letter of invitation (internal memo) dated 9^th April 2013 (Exhibit DW10K), stated that the claimant and others were invited to ‘…… a meeting with the above committee to further consider the report of the investigative panel on the circumstances surrounding the death of the late Mrs. Ronke Akingbehin.’

Counsel submitted that one of the pillars of the principle of fair hearing nemo judex in causa sua, that is;  a man should not sit in judgment over his own case and anybody who is privy to the issue at stake or who is likely to be biased should not sit or adjudicate on such panel, referring to the case of SPDCN v. Olanrewaju (2009) 6 WRN 53.

Counsel submitted that Mr. Olajide (DW10) in paragraph 1 of Exhibit DW10E1 asserted being a member of the top administration of LUTH who had selectively suspended the claimant and then set up the 1^st Investigative/disciplinary panel, he was a member of the said 1^st LUTH panel (Exhibit DW10G) and a member of the joint committee that accepted the report of the recommendation of the 1^st panel report that the claimant should be dismissed. (Exhibit DW10L-14).

That Mr. Otuneme was the secretary of the first panel and was also a member of the joint committee. The Chairman of the Joint committee, the Chief Medical Director (3^rd defendant), Prof. Akin Oshibogun was severally indicted by the head of the department of obstetrics and Gynaecology, the consultant obstetrician, DW13 and the claimant for maladministration and was therefore tainted. Dr. Makwe tendered at the panels the letter he wrote warning the 3^rd defendant of the danger of using only one theatre instead of two at the labour ward. The claimant, when he was the vice president of ARD, LUTH also previously criticized the 3^rd defendant for his bad administration of LUTH (Sunday Punch Newspaper of October 7^th, 2008).   Counsel submitted that the proceedings, conclusions and recommendations of the joint committee was a nullity having relied on the report of the first panel that did not afford the claimant fair hearing.

Counsel submit that the finding of guilt and recommendation of punishment by the 1^st LUTH panel and joint committee and the subsequent dismissal of the claimant thereto is a nullity as their proceedings and reports are unconstitutional, null, void and of no effect for not adhering to the rules of natural justice and in breach of Section 36 (1) of the constitution of Federal Republic of Nigeria 1999 as Amended.

On issue 3, Counsel submitted that parties are bound by the contract they freely entered into and the court would not hesitate to enforce such terms and conditions. That a closer look at clauses 3, 5 and 6 of the letter of offer, (Exhibit A) that stated various modes of determining the claimant’s residency training position, will show that from the state of pleadings and evidence adduced by both parties that the defendants did not act on the  recommendation of any residency training committee with respect of any persistently poor clinical and academic performance of the Claimant. Thus, Clause 3 was not applicable in this instance.

Furthermore, that it is trite law that before the termination in clause 6 in the letter of employment with statutory flavor is activated, the employee must have been given fair hearing and statutory provisions must have been followed. That the termination in clause 6 will be inconsistent with Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended if it can be activated without affording the claimant fair hearing. That the constitution is supreme and any provisions of a contract of service that sought to alienate the constitutional rights of the citizen to fair hearing is liable to be declared null and void to the extent of its inconsistency. Counsel referred to the case of Oloruntoba – Oju v. Abdul-Raheem (supra) where Adekeye JSC stated thus:

‘There is a presumption that when the legislature confers a power on an authority to make a determination it intends that the power shall be exercised judicially in accordance with the rules of natural justice’.

Counsel submitted that the applicable Hospital’s disciplinary law against resident doctors in LUTH is Section 9 of the Reconstitution of Boards Act and the Public Service Rules.

On issue 4 Counsel submitted that it is trite that the court will not look into the mind of the panelist to see whether injustice had occurred. Lack of fair hearing or a real likelihood of bias is all that is required for the court to declare the dismissal as illegal.

That it is also trite that when an employer gives a reason for dismissing an employee the onus is on the employer to prove the allegation to the satisfaction of the court. That it is further, settled that he who asserts must prove referring to Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417 at 432, Section 131 of the Evidence Act 2011. Counsel submits that 1^st to 3^rd defendants have not discharged the burden of proof of any form of allegation or charge against the claimant to warrant the capricious withdrawal from his duty and residency training position.

Continuing counsel submitted that both parties were ad idem that the case files of each patient contains vital documentation on the patient’s care. That the nursing observation records, report of the tests conducted and other vital documents are also in the case file of each patient. Furthermore, that the LUTH panel and the joint committee were said to have arrived at their recommendations after reviewing the case files of the patients managed that day (Exhibit DW10J-58 and DW10L-14). That although, DW3 admitted seeing patient’s original case files at her pre-trial briefings with Mr. Shitta-Bey of Counsel, yet the defendants refused to produce that file.

Counsel submitted that it is germane for the court to form an opinion on the culpability or otherwise of the claimant and all the medical team by reading through the case file, in the presence of conflicting and contradictory oral evidence. Counsel referred to the case of Unilorin Teaching Hospital v. Abegunde (2015) 3 NWLR (Pt. 1447) 421 at 450 paras F-G where it was stated thus:

‘Where oral evidence of adverse parties are in conflict, documentary evidence should be used as a barometer to determine their veracity’

Counsel objected to the admissibility of Exhibit DH-DH44 the purported photocopy of the case file of Mrs. Ronke Akingbehin and submitted that same is inadmissible, same being a public document that has not been certified from the original document but from a secondary document (an electronic document of the original after the original had been declared missing). Counsel referred to the case of The Hon. Justice E. O. Araka v. The Hon. Justice Don Egbue (2003) 17 NWLR (Pt. 848) 1 and submitted further that the defendants failed to comply with the requirements of Section 84 (4) of the Evidence Act 2011 by not tendering the certificate of authentication.

Counsel also objected to the admissibility of Exhibit DG-DG3 as same is inadmissible as same is part and parcel of a patient’s (Mrs. Akingbehin) case note and not a separate document as portrayed to the court. Counsel further that an inadmissible document cannot be admitted even with the consent of parties.  That it is trite that any evidence that was admitted in error can be expunged even at the judgment stage or on appeal. Counsel urged the court to expunge Exhibit DH-DH44 and DG-DG3 from the court’s records.

Counsel submitted that as stated in the Letter dated 25^th July, 2013 (Exhibit H) and same affirmed in paragraph 77 of the further amended statement of defence and paragraph 36 of Exhibit DW10E1, the defendants’ reasons for withdrawal of the claimant were:

1)   You were the senior registrar in charge of the labour ward (Emergency) on 1^st March, 2013, hence Mrs. Akingbehin was directly under your care at the material time.

2)   It was improper and unacceptable that you did not take Mrs. Akingbehin to the theatre between 9am and 12noon on the said date.

3)   Your reasons for not taking Mrs. Akingbehin to the theatre as aforesaid were not tenable.

4)   Your faulty judgement of her case in the circumstances delayed the surgery particularly between 9am and 12noon when no surgery was being performed in the theatre.

Counsel submitted that the defendants failed woefully to establish and prove any of the above allegations against the claimant at the trial of this case.

 On issue 5, Counsel submitted that based on their submissions in issues 1,2,3,4, above the claimant was employed by the 2^nd defendant’s board to offer clinical services and to train to become consultant obstetrician and gynecologist. His post and training has statutory flavour and his dismissal or withdrawal was null, void and of no effect. Counsel submitted that the legal implication of declaring the termination of an employment illegal, unlawful null and void is that such termination never occurred and the consequential order thereto is the immediate reinstatement of the claimant to his position without any loss of seniority, promotion, emolument and or privileges. Counsel referred to in Section 9(4) (b) of the Reconstruction of Boards Act and Rules 030307 (xi) of the Public Service Rules.

Counsel submitted that the defendants are duty bound to fulfill their obligation to the claimant by allowing him train for the remaining period of his training contract in order to qualify for the part 2 examination and also write the examination as a resident doctor of the Hospital. That in the case of Olabisi Onabanjo University Teaching Hospital Management Board v. Dr. Ogunlaja & Ors. 2016 WRN the court frowns at a situation in which resident doctors will be made to render service without giving them opportunity to have valid training to qualify to write the part 2 fellowship examination. Counsel the court to reinstate the claimant from date of suspension till date of judgement and subsequently for 17 months afterwards and order the defendants to pay the full salaries and emolument of the claimant from the date of suspension (March 8, 2013)till reinstatement  and till he lawfully exits the senior residency post which is 17 months after reinstatement.

In the alternative argument, counsel stated that the claimant while offering clinical services is also training to become a consultant. Parties are bound by the agreements they freely entered into. The claimant was still entitled to 17months of senior residency training before his service was unlawfully truncated. Counsel urged the court to order and hold that the claimant be: reinstated and granted the 17months of training to complete his residency training: his salary be paid from reinstatement till the claimant lawfully completes his training and perpetual injunction restraining the defendants from tampering with his employment unless he completes his training.

On issue 6, Counsel submitted that the claimant is not just an employee of the defendants that was rendering clinical services to the hospital, he was also training towards becoming a specialist obstetrician and gynaecologist. That the Claimant’s dream of becoming a Consultant obstetrician and gynaecologist has been unjustifiably withheld from him for well over 5 years. That the claimant obtained forms for the West African College of Surgeons Examination, the said examination can be attempted after 18 months of Senior residency but the defendants refused to sign his form until he protested as can be seen in Exhibit Z (letter of protest) and the form he obtained (Exhibit AB). That the defendants wrote against the claimant to the West African College of surgeons thereby preventing him from writing the examination in October 2013 when he would have spent more than 18 months as a Senior registrar (January 2012 to October 2013).

Counsel urged the court to take note that the seniority in medical profession is based on dates of passing their professional examinations and while this matter was pending before the court, the claimant’s junior colleagues have passed their requisite part 2 fellowship examination which qualifies them as a consultant/specialist thereby being senior to the Claimant forever.

Counsel stated further that the reputation of a medical doctor is very germane to his practice which must be guarded jealously, in fact a malicious investigation of a medical doctor for negligence can badly injure his reputation Tobi JSC (of blessed memory) quoted Lord Denning with approval in Ojo v Gharoro(supra) thus:

“…..His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not therefore find him negligent simply because something happens to go wrong…”

Continuing Counsel argued that damages are awarded to rectitude fully the injury suffered by a party and that this is a good instance when general damages is appropriate to assuage the suffering of the Claimant. Counsel stated that damages are also awarded against defendants who have behaved maliciously and capriciously before and during trial as the defendants in this case. That the award of ₦10,000, 000.00 (ten million naira) as general damages is modest in the present circumstances considering all the issues submitted and the present inflation rate of the naira.

On issue 7, the counsel submitted that the landlord can request for his property, but in so doing, he should not resort to actions that would cause a breach of the fundamental human right of the claimant. Statutory notice to quit and proper manner of quitting a staff from the staff quarters was not followed in this case. Exhibit Q stated that 6 months is the normal period allowed after residency for the Claimant to look for accommodation. This was not controverted by the defendants. Exhibit S (pay slip) shows that rent is being deducted monthly on the claimant’s occupation of the flat 14 he is as such a lawful tenant on the property. Counsel urged the court to order that the claimant maintains his accommodation till 6 months after his exit from residency training which has been the standard practice in LUTH.

On issue 8 the learned counsel, submitted that cost follows events and is at the discretion of the court. The essence of cost is to defray the cost of the litigation of the winning party. In Chijioke v. Soetan (2006) 10 NWLR (Pt. 990) 179 at 217-218 paras G-B, the court restated some factors the trial court considers in awarding costs which are:

(a)    The summons fees paid

(b)    The duration of the case

 (c)   The number of witnesses called by the party in victory

 (d)   The vexatious or frivolous nature of the action or defence of the party who failed in the litigation

(e)    The monetary value at the time of incurring the expenses and

(f)     The value and purchasing power of the currency of award at the time of the award.

The counsel submitted that this case had suffered several and multiple adjournments spanning 5 years, 16 witnesses testified with the defendants calling 15 of the 16 witnesses, the claimant had to cross examine 15 witnesses for multiple days and the claimant was cross-examined for multiple days by the defence counsel. The defendants initially filed 12 witness statements on oath afterwards, filed 8 amended witness statements on oath, Mr. Olajide (DW10) filed additional 2 witness statement on oath, 5 fresh oaths were then filed towards the end of the suit. The defendants filed 27 witness statements on oath and the Claimant had to prepare for them all. That the defendants falsified records, failed to produce vital documents in their possession and also harassed witnesses to mislead the court. The defendants filed well over 8 frivolous applications (motion on notice) in this suit. The Claimant who came from South Africa for most of the court sittings attended majority of the court sittings and also had to contend with several documents that were tendered by the defendants. Counsel urged the court to exercise its discretion based on the provisions of Order 55 Rules 1, 4 and 5 of the National Industrial Court Civil Procedures Rules 2017 by awarding minimal cost of ₦5, 000, 000.00 (five million naira) against the defendants.

In conclusion counsel urged the court to enter judgment in favour of the claimant and grant all the reliefs sought by the claimant in his general writ of complaints and make a consequential order for the reinstatement of the claimant and for the claimant to have 17 months of training after reinstatement in order to conclude his residency training program. The Learned Counsel for the 1^st and 3^rd Defendant on 21/11/2018 filed “1^st to 3^rd Defendants’ Reply on Point of Law”.

This process is not a reply on Point of Law parser rather it contains further arguments in furtherance of the 1^st -3^rd Defendants final written address premised on, the 4 (four) sub-topics summarized hereunder:

1.     SPECIAL CIRCUMSTANCES AND REINSTATEMENT

Counsel submitted that to seek a declaration that the decision terminating his appointment was illegal, null, void of no effect, the Claimant will need to show that there are special circumstances crying out for such declaration to be made. That by the sum jurisprudence of the cases establishing the law in this area, only special circumstances can warrant a departure from the common law rule that a willing employee will not be imposed on an unwilling employer.

However, that it is established Law that the Claimant cannot merely rely on the Defendant being a creature of statute to claim statutory protection. For example, in Olatunbosun v NISER (1988) 3 NWLR (Part 80) 25, the fact that Prof. Olatunbosun was a pensionable Federal Public Servant, was held ipso facto not enough to convey statutory protection.

That in such situation, a Claimant has to go further to demonstrate how the Statute or Regulation in question offered him protection to prevent the determination of his appointment in the way and manner by which it was carried out.

2.     SPECIAL CIRCUMSTANCE AND SECURITY OF TENURE.

Counsel argued that in the instant case, Exhibit A-A3 demonstrates that the Claimant was on temporary engagement and on probation. That he clearly had no legal or statutory status over and above the ordinary master and servant relationship, being temporary and on probation, his status was indeed less.

That the appointment by the 2^nd defendant, a creature of statute, could not, ipso facto, confer upon the Claimant’s contract statutory protection; there needed to be something special to protect and by authority of decided cases, this something special is  “security of tenure” that can only be brought to an end by retirement age of 60 years or upon following special disciplinary procedure under Statute, Rules or Regulations made under Statute. Counsel referred to the case of Stabag Construction Nig. Ltd. v Adeyefa (2001) 15 NWLR (Pt. 735) 1 at 26.

3.     ENTITLEMENT TO EQUITABLE REMEDY OF SPECIFIC PERFORMANCE.

The learned counsel submitted that notwithstanding statutory protection, the remedy of specific performance is not automatic but rather an equitable remedy entirely at the discretion of the Court.

That the Claimant cannot claim equitable remedy having taken up appointment with the 2^nd Defendant in breach of both academic and rules of professional conduct when in fact he was already engaged in another full time post-graduate course. That by this, he is in breach of the equitable maxim of approaching equity with clean hands.

That being on two full time courses will no doubt have impacted upon his ability to discharge his duty creditably and dutifully to his patients. Requesting for reinstatement is more or less asking the court to permit an unlawful and improper act since reinstatement will date back to 25^th June, 2013 when he was still registered as a student on the Master of Public Health (MPH) programme at the College of Medicine. That the programme ran from January 2013 to January 2014. That this meant at the material point in time he was a post-graduate student on both LUTH Residency Training programme and college of Medicine’s master of Public Health programme.

4.     COMPLIANCE WITH HOSPITAL DISCIPLINARY LAWS AND REGULATIONS.

Counsel argued that, LUTH Management acted appropriately when it issued the Claimant letter of query dated 5^th March, 2013 (Exhibit B). In this Management informed the Claimant of grounds on which serious disciplinary action could be taken against him. This was stated to be delay in operating on late Mrs. Akingbehin who eventually died along with her baby. Management requested the Claimant to explain his role in the matter to avoid serious disciplinary action (termination being one).

That on 4^th March, 2013 (a day earlier), Dr. Christian Makwe, had issued a similar query (Exhibit DW 10 D) to seek an explanation of the Claimant’s role in the management of Mrs. Akingbehin, which patient was admitted to Labour Ward at 6.30am and had uterine rupture about 6 hours after admission.

That as requested, the Claimant responded to Management’s query within 24 hours (Exhibit C-C1 dated 6^th March, 2013), while he responded to the Consultant’s query 3 days later (Exhibit DW 10 E dated 7^th march, 2013). Time for response made no difference as his response to both queries were identical.

Counsel submitted that in this instance, the Claimant was not withdrawn under Clause 6 of Exhibit A-A3 which required notice but rather under authority conferred by Chapter 3, Section2, 030205 of the Public Service Rules. The Defendant in withdrawing the Claimant had complied with Hospital Disciplinary Laws and Regulation as required by Clause 5 of the contract.

In all, the learned counsel urged the Honourable Court to dismiss the Claimant’s suit as unfounded and award cost in favour of the 1^st to 3^rd Defendants.

COURT’S DECISION. 

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that all the issues raised by the parties can be summarized into one issue that is; whether the claimant has proved his case to be entitled to the reliefs claimed. Consequently, I shall treat the claims of the claimant seriatim.

But before then I had earlier in this case decided to treat the merit of the motion dated the 16^th day of January 2014, seeking to strike out the names of the 1^st and 3^rd defendants from this suit, on the ground that the 1^st defendant is a non-juristic person and the 3^rd defendant a misjoinder.  I shall now deliver my ruling on that motion as follows:

RULING ON MOTION ON NOTICE

In respect of the 1^st defendant, the learned counsel for the applicants submitted that while section 2 of the Lagos University Teaching Hospital Act Cap L4 Laws of the Federation of Nigeria 2004 provided that “there shall be Lagos University Teaching Hospital for the purpose of…”   That section 2(2) of the said Act provided that “there shall be established a body corporate by the name of Lagos University Teaching Hospital Management Board”. Counsel submitted that the Lagos University Teaching Hospital Act vests corporate personality in the Lagos University Teaching Hospital Management Board, therefore it is the only body that can sue or be sued with respect to the activities of the defendants and not the first defendant who is not a juristic person or the 3^rd defendant who is a member of the board (already sued as the second defendant).  Continuing further, counsel argued that a look at the pleadings of the claimant will review that there is no cause of action established against the 3^rd defendant.

The learned counsel for the claimant in opposing this application submitted that the 1^st defendant is a creation of statute with specific function, to provide facilities for training medical students. That it’s creation by statute makes it a legal entity that can sue or be sued even though not expressly stated. Counsel referred to the case of African Ivory Ins co. Ltd v Commissioner for Insurance (1998) 1NWLR(Pt.532) 50 at 57. In respect of the 3^rd defendant, counsel submitted that the powers of the 1^st defendant are exercisable through the 3^rd defendant which equally makes the 3^rd defendant a juristic person. Counsel urged the court to dismiss this motion.

The 1st and 3rd defendants in their objection are contending that they are non-juristic persons.  The court is aware of the legal position stated in the cases of Reptico S.A. Geneva v Afribank (Nig.) Plc. (2013) 14 NWLR (Pt. 1373) 172 @ 176, where it was held that:

 “the law recognizes two categories of persons who can sue and be sued in court. They are natural persons, with life, mind, brain and physical body, and other artificial persons or institutions having juristic personality.” See A-G., Federation v A.N.P.P. (2003) 18 NWLR (Pt. 851) 182 (p. 207, paras. B-C).

 Also, the case of Maesrk Line v Addide Invest. Ltd. (2002) 11 NWLR (Pt. 778) 317 @ 322 where it was held that:

 “A person who is made a party to an action either as a plaintiff or as a defendant must be a legal person or, if not, a body vested by law with the power to sue or be sued. Thus, if it is successfully shown that a party to an action is not a legal person, that party, should be struck out of the suit, and if such a party was expressed to be the plaintiff, the action should be struck out.”  See also Bodunde v S.C.I. & C.S. Ltd. (2013) 12 NWLR (Pt. 1367) 197 @ 202-204.

However, the above cases as well as those cited by the counsel for the defendants/applicants were not resolved in an Industrial court; where the issues are not merely the contractual legalese and rights and wrongs of employers and employees. But also, and mainly the prevention of labour practices regarded as unfair and for restoring industrial peace and harmony. In the Indian case of NTF Mills Ltd v. The 2^ND Punjab Tribunal, AIR 1957 SC 329, the Supreme Court of India held that: –

“The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.”

Now this need to ensure labour harmony and informal environment has given rise to some concepts not necessarily found in a regular High Court to wit; this court has granted or accorded legal audience to local branch units of unions, known not to be registered or juristic persons, See Senior Staff Associations of Nigerian Universities v Federal Government of Nigeria [2008] 12 NLLR (Pt. 33) 407, where unregistered associations were not denied access to this Court to maintain their suits.

In order to hold the necessary parties accountable this Court has always accorded Ministries of Government Legal recognition and access to this court, see the case of MHWUN & 4ors v Federal Ministry of Health unreported suit no. NICN/ABJ/238/2012 delivered on the 27^th July, 2013.

Also see further, the case of Hon. Barr. Nnamdi Eluwa &Ors v Umuahia South Local Government & Anor unreported NICN/EN/120/2012 delivered on 4^th March 2013 where it was held ‘that bodies created under the constitution and duly conferred with statutory functions “are juristic persons even if not expressly so designated”

And considering the case law position from Rufus Okereke v. Sunday Dike & ors. (2003) 44 WRN 68 @ 72 where it was held that whether a party can be sued is not only determined by the express words of a statute, it can also be implied. Also of note on this point is the case of Solomon Oboba v Chief Registrar High Court Delta State & ORS (2011) LPELR-8783(CA) where the Court of Appeal had this to say; “It is the law that legal personality of a non-natural person to sue or be sued can be express or implied from the statute creating it and can even be implied from the functions assigned to it by a statute”. See also the cases of; Thomas v. Local Government Service Board (1965) 1 ALL NLR 168 at 170, Fawehinmi v N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 604 – 609 and Abia State University v Anyaibe (1996)3 NWLR (pt. 439) 646.”                                                                                

Furthermore, in the case of FGN  v Zebra [2002] LPELR 3172 SC., the Supreme Court per Mohammed JSC., held that  it was permissible to sue persons by their official names and titles and such persons were considered public officers and the term public officer “not only refers to natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles.”

Where necessary, this court has suo moto ordered the alter ego of the public body/ institution be joined by order of court to a suit if, to the court, it would advance the cause of justice. See the case of Hon. Samuel N. Anyanwu v Imo State Government & ors. unreported suit no: NICN/EN/68/2012 delivered on 28^th November 2008.

From the foregoing, and coupled with the fact that 1^st and 3^rd defendants were created and given functions by the said Lagos University Teaching Hospital Act Cap L4 Laws of the Federation of Nigeria 2004, by that Act, they were by implication conferred with juristic personality. Also, from the evidence led in this case it is obvious that the third defendant is a proper party to this suit. Consequently, this Preliminary objection is lacking in merit and it is hereby dismissed. Ruling is entered accordingly.

RESOLVING THE CLAIMS.

 I shall now deal with the claims of the claimant seriatim as follows; claims 1, 2, 3, 5 and 6 are seeking declaratory reliefs to the effect that the proceeding, report and recommendation of the investigation panels set up by the defendants which culminated in his withdrawal from his Residency Training Programme with the 1^st defendant are null, void and no effect and for order for his reinstatement into his Residency Programme. To correctly address these claims, it is important to first of all determine the nature of the relationship between the claimant and the defendants.

 All the parties agreed that the offer of admission into the Residency Training Programme exhibit A-A2 is the letter of contract between the parties herein. The learned counsel for the 1^st -3^rd defendants submitted that the Claimant was not an employee but rather a post graduate medical student in training, notwithstanding that he was paid salary to compensate for services rendered as part and parcel of his training contract.  That this is reinforced by the caption of the Residency Training Contract (Exhibit A-A2) between the parties as; “Offer of Admission into Residency Training Programme”. That the service element however does not turn the contract into an employment nor turn the trainee into an employee. That rather than create a legal status over and above that of an ordinary master and servant relationship, the claimant’s contract created one which is even below by reason of being a temporary post and on probation.

The counsel for the claimant on the other hand, submitted that the opening paragraph of Exhibit A confirmed that the 2^nd defendant’s Board employed the claimant pursuant to some statutory provisions. That the nexus between the letter of offer (Exhibit A), the Reconstitution of Boards Act and Public Service Rules sufficiently clothed the employment and training of the claimant with statutory flavour.

The said exhibit A is hereunder reproduced:

 Ref. No. ADM/DCST/67^B /Vol.8                                    17th January, 2012.

Dr Olorunfemi Gbenga,

Road 42, Blk 10,

Plot 2 Olawale Onitiri Avenue,

Lekki Phase 1, Lagos.

Dear Sir/Madam,

OFFER OF ADMISSION INTO THE RESIDENCY TRAINING PROGRAMME

I write on behalf of the Lagos University Teaching Hospital Management Board to offer you admission as a Senior Registrar II in the Department of Obstetrics & Gynaecology of the Logos University Teaching Hospital’s Residency Training Programme with effect from 17^th January, 2012.

1.     Your salary shall be at the rate of N1,887,305.00 per annum in the salary scale of CONMESS 3/2 with effect from date of the commencement of the training (i. E. N1,845,557.00- N2,63,037.00).

2.     You are expected to undergo a mandatory Medical and Security Screening, which the Chief Staff medical Officer and the Chief Security Officer of the Hospital respectively will arrange for you. Please note that your salary will not be paid until you have successfully completed the screening. This should be done within three (3) Months of assumption of Training failing which your admission will be reviewed.

3.     As this is a training post, your continued admission shall be on probation THROUGHOUT THE PERIOD OF YOUR STAY in the Residency Training Programme. You shall withdraw from the programme not later than six (6) months after passing the Part II fellowship Examination of the National Postgraduate medical College of Nigeria in its equivalent in accordance with the set guidelines of performance in the programme as stated below:

a.     Three (3) years are allowed for passing Part II fellowship Examination except in Obstetrics & Gynaecology Department where two years and six months (2^1/2 years) would allowed. However, this may be reviewed for Sub/Super specialties where the Faculty requirements demand a longer period of time for training, subject to the recommendation of the Head of Department.

b.     If you fail to pass the examination within the time stipulated above, you shall be withdrawn by the Management from the programme and you shall vacate your official accommodation immediately.

c.      That six (6) months Post fellowship Extension would be given to you after passing the Part II fellowship Examination. This is however at the discretion of the Management. Thereafter, you will be expected to leave the programme and vacate your official accommodation.

d.     In addition to the above conditions, you are expected to perform satisfactorily and efficiently in training and service. For this purpose, you shall have your performance evaluated by the Residency Training Committee in your Department every six (6) months. Where your overall performance persistently falls below acceptable standard, you shall be withdrawn by the Management from the Programme forthwith.

4.     Your training shall be guided by the regulations of the Lagos University Teaching Hospital Residency Training Programme and those of the National Postgraduate Medical College of Nigeria or its equivalent.

5.     All Resident Doctors are subject to the Hospital’s Disciplinary Laws and regulations.

6.     Without prejudice to Clause 3 hereof, this admission could be determined by either party giving one month notice in writing or upon the payment of one month salary in lieu of notice to the other party.

7.     You must have been duly registered with the Medical and Dental Council of Nigeria to practice Medical/Dentistry in Nigeria. It is a condition precedent to your admission that you must have Professional Liability Indemnity Insurance. Failure to show proof of possession within a specified time may lead to the review of your admission.

8.     Before you are allowed to practice in this Hospital, you are required to show evidence of having paid your Annual Practicing Fees to the Medical and Dental Council of Nigeria as required by the Council. It is your responsibility to pay practicing fee every year of your stay in the programme.

9.     You are required to submit letters of reference from two reputable referees before commencements of your training

10.            If the above conditions are accepted to you, please write to accept the offer of admission into the Residency Training Programme.

11.            The acceptance letter should reach this office not later than 17^th February, 2012.

We look forward to welcoming you to the Programme.

This offer lapses on 17^th February, 2012.

Yours faithfully,

Ayo Olagunji

Director of Administration

For: Chief Medical Director

 From exhibit A the following facts are clearly established:

1.     That the claimant was offered admission as a Senior Registrar 11, in the department of Obstetrics and Gynaecology.

2.     The letter was on behalf of Lagos University Teaching Hospital Management Board.

3.     It is a condition of the offer that the claimant shall be placed on a salary of CONMESS 3/2.

4.      The admission is a training post wherein the claimant shall be on probation throughout the residency programme.

5.     Three years are allowed for passing part 11 Fellowship examination except in Obstetrics and Gynaecology where two years and six months may be allowed.

6.     By clause 4 the programme is guided by the regulations of the Lagos University Teaching Hospital Residency Training Programme and those of the National Postgraduate Medical College of Nigeria or its equivalent.

7.     By clause 5, All Resident Doctors are subject to the Hospital’s Disciplinary Laws and regulations.

From the foregoing, it is not difficult to find the following facts.;

1.     That the claimant is a trainee in that he is undergoing a training programme for a fixed period.

2.     That while undergoing his training he equally works as an employee as Senior Registrar 11 and receives salaries in the salary scale of CONMESS 3/2 as operated by the defendant.

3.     That by clause 5 of exhibit A, the claimant was made subject to the Hospital’s Disciplinary Laws and Regulations meaning that his training is statutorily protected and therefore can only be disciplined in accordance with the relevant statutes.

 From the foregoing I find and hold that the status of the claimant is that of a trainee/employee for a fixed period which is statutorily protected for that period. In Cosmos C. Nnadi v National Ear Care Centre & Anor (2014) LPELR22910 CA, The Court held that "It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavor, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder." The above was followed in the case of New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489 (CA) where it was said of employment with statutory flavour: "In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void... such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government..." See also Osumah v. Edo Broadcasting Service (2005) All FWLR (Pt. 253) 773 at 787, Oloruntoba Oju v. Abdulraheem (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83." Per MBABA, J.C.A. (Pp. 16-18, paras. G-C) -  

It is imperative at this point to determine the import of the probationary nature of the claimant training/ employment. In Al-Bishak v National Productivity Centre & Anor (24659) CA , the Court held as follows: “In Baba v Nigerian Civil Aviation Training Centre [1986] 5 LPELR-21095, the Court while adopting the Black's Law Dictionary defined the word "probation" as: "The initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position." Per Obaseki-Adejumo, J.C.A. (P. 63, paras. B-D). Thus, a period of probation is actually a prelude to confirmation or temporary period preceding the making of the employment permanent. In this case, by making the training /employment probationary ‘throughout its duration’, it then means that the conditions of engagement at commencement of the programme shall apply and be applicable throughout the programme and does not mean that the defendant can whimsically end the programme without going through the laid down procedure as provided for under exhibit A-A2.

From the evidence and written addresses of both sides in this case the applicable statutes that guide the training / employment relationship of the parties are: (i) The University Teaching Hospitals Reconstitution of Boards Act CAP U15 LFN 2004; and (ii) the Federal Government Public Service Rules (2008).

 The University Teaching Hospitals Reconstitution of Boards Act by section 16(2) provided the power of discipline and the determination of appointment of members of the staff of the hospital.

In section 19, the Act made a distinction in the definition of “medical student” and “students”. In the definition of “medical student” two categories of students were identified and defined as follows:

(a) The first being a student whose “course of instruction is designed to enable him qualify as a medical practitioner.”  It is obvious that this definition is inapplicable in this case as the claimant had already qualified as a medical practitioner and

(b) The second is a student whose “course of instruction is designed for further training of medical practitioner”, certainly the claimant falls within this category as he had already qualified as a medical practitioner before embarking on the programme.

 Then “students” on the other hand, is defined as a person enrolled at an institution controlled by the Board for the purpose of pursuing a course of instruction at the institution.

The distinction in the definition of “medical student” and “students” under the Act to my mind is deliberate and important, in view of the provisions for disciplining them as provided in sections 8 and 9 of the Act.

While section 8 is strictly for disciplining of students and so captioned, section 9 is broad and includes disciplining of any “clinical, administrative and technical” staff. The learned counsel for the 1^st-3rd defendants has submitted and rightly too, that section 8 aforesaid, is not applicable to the claimant.

 However, that cannot be said of section 9, in relation to its applicability to the claimant. It is clearly not in dispute that the claimant was admitted /employed by the 2^nd defendant’s Board to train to become a consultant obstetrician and gynecologist and at the same time to offer clinical services. He occupied an office as Senior Registrar 11, as I have already found in this judgment, clause 5 of exhibit A, incorporated or made this Act applicable to the claimant. I therefore hold that it is section 9 of the Act that is the applicable provision in the issue of disciplining the claimant.

For the sake of clarity, the provisions of the said section 9 of the Act are reproduced hereunder:

REMOVAL AND DISCIPLINE OF CLINICAL, ADMINISTRATIVE AND TECHNICAL STAFF

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 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 representations 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 head 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.

2.         The Chief Medical Director may, in a case of misconduct by a member of the staff which in the opinion of the Chief Medical Director is prejudicial to the interest of the hospital, suspend any such member and any such suspension shall forthwith be reported to the Board.

The learned counsel for the claimant submitted that the defendants failed to follow the provisions of Section 9 (or any other section whatsoever) of the University Teaching Hospital (Reconstitution of Boards, Act) and the Public Service Rules as follows:

i.             That there was no valid notice from the 2^nd defendant to the claimant on the reasons for believing that the claimant should be removed from his office or employment as a senior registrar II (a senior clinical staff) on account of the case of Late Mrs. Ronke Akingbehin or any other matter as required by section 9 (1) (a) of the Reconstitution of Boards Act 1985.

ii.            That the claimant was not afforded the opportunity of making representation in person on the matter of the death of Late Mrs. Akingbehin to the 2^nd defendant board, as required by section 9 (1) (b) of the Reconstitution of Boards Act 1985.

iii.          That the claimant did not attend any validly constituted investigative panel of the 2^nd defendant board as required by section 9 (1) (c) (i) of the reconstitution of Boards Act 1985. Assuming without conceding that the claimant and others attended valid panels under section 9 (1) (c) (i), neither the panel, nor the joint committee afforded the claimant fair hearing as required by Section 9 (1) (c) (ii) of the Act 1985.

iv.          That Exhibit F that purported to remove the claimant from his post as senior registrar II on grade level 13 was not shown to be directed by the 2^nd defendant board who was already inaugurated on 23^rd April, 2013 as required by section 9 (1) (c) of the act 1985.

 I shall now look at the processes that led to the withdrawal of the Claimant from his Residency Programme the first is a letter of invitation (exhibit AH) captioned “Invitation to meet the investigative Panel to look into the circumstances surrounding the Death of Mrs Akingbehin Ronke”.

The letter was written by the First Defendant and signed by K. O. Otuneme (for Chairman of the Panel). This letter was not issued by the secretary of the Board, it made no reference to either the Minister of Health or to the 2^nd Defendant (the Board).

The second is Exhibit DW10-J-J58 captioned “Report of Management Investigative Panel set up to look into the circumstances surrounding the Death of late Mrs. Ronke Akingbehin April 2013”.

This committee was entirely set up by the first Defendant; and membership    was equally drawn from the staff of the 1^st Defendant. It had nothing to do with the Ministry of Health, and also had nothing to do with the Board of 1^st defendant, that is; the 2^nd Defendant.

This panel found the action of the Claimant in appropriate and recommended that he should be withdrawn from the Residency Training Programme.

The third document is Exhibit D Captioned “Invitation to a meeting with the Extended Top management Committee of LUTH and Federal Ministry of Health Representatives”.

Again, this letter was written by the 1^st Defendant. It made no reference to the Board of the first defendant.

The report of the meeting which was to “further consider the report of the investigative Panel on the circumstances Surrounding the death of the late Mrs. Ronke Akingbehin” is the report of the meeting as contained in Exhibit DW10-L-14, the said report said that the Claimant “did not carry out the directives given to him by his consultant and did not show any remorse for his actions”.

Then came Exhibit F, the letter of withdrawal; the contents of which are hereunder reproduced: -

Ref. No.PSC/5472/12

25^th June, 20113

Dr. Gbenga Olorunfemi,

Flat 14, LUTH Compound,

LUTH.

RE: REPORT THE CASE OF THE DEATH OF A PATIENT MRS. AKINGEHIN RONKE LETTER OF WITHDRAWAL FROM RESIDENCY TRAINING  PROGRAMME

Arising from the conclusion on the case of a patient, the late Mrs. Ronke Akingbehi, I am directed to inform you of your withdrawal from the Residency Training Programme.

Consequently, you are hereby withdrawn from the Residency Training Programme of the Lagos University Hospital, with immediate effect. You are to handover all Hospital Property in your possession to your head of Department and your Hospital Identity Card to the Principal Security Officer LUTH.

Please liaise with the Deputy Director of Administration (P) for further necessary Exit Clearance.

AYO’ OLAGUNJU

DIRECTOR OF ADMINISTRATION

FOR: CHIEF MEDICAL DIRECTOR

From this Exhibit F, it is very clear and obvious that the withdrawal of the Claimant from his residency programme was entirely done by the Chief Medical Director (3^rd defendant) of the 1^st Defendant.

It is clear that from Exhibit A-A2, management of the 1^st defendant was empowered to withdraw the Claimant from his residency on only two Circumstances. The first is under clause 3 (b) for “failure to pass the Part II Examination within the stipulated time” and under clause 3 (d) for “persistently falling below acceptable standard” every other disciplinary power leading to withdrawal is vested on the Board of the 1^st defendant.

Further, under Section 9 of the University Teaching Hospitals (Re constitution of Boards, etc) Act, the management of the defendants has maximum right of suspension in terms of disciplining the Claimant, the right of removal or dismissal resides entirely on the Board.

The Learned Counsel for the 1^st-3rd Defendants has argued first that at the time the incident occurred the Board of the 1^st Defendant was been dissolved and the powers to discipline the Claimant became vested on the Honurable Minister. Counsel concluded that the second Panel meeting was with the knowledge of the Honourable Minister aforesaid.

The Learned Counsel also argued that the Board of 5 members reconstituted by the President Goodluck Jonathan on 23^rd April 2013 was incomplete as Section 2 (i) of the University Teaching Hospital (Reconstitution of Boards etc) Act 1985 required 23 members to constitute each Board.

Counsel submitted that the Claimant only pleaded and relied upon the inchoate exercise carried out by President Goodluck Jonathan on 23^rd April, 2013 in which the President only swore in 5 members for each of the Board out of the 13 required by statute.

In the first argument, I have stated that the power to withdraw the Claimant does not reside with the 1^st, 3^rd and 4^th Defendants but resides with the 2^nd Defendant that is the Board. Therefore, the argument of doing so with the knowledge of the Minister cannot be justified. This Court has had cause to consider similar arguments to that of the 1^st-3rd Defendants herein, to what is to be done in the absence of a Governing Counsel or Board, in the (unreported) suit No. NICN /LA/590/2012 (Adesoji Sodeke v. National Drug Law Enforcement Agency) delivered on October 24^th, 2016, this Court held that the proper thing for the Defendants, to do in a situation where the Board approval is required to take any action and no Board is in place, would be “to wait until the Board is reconstituted to do otherwise will mount to performing an act that is ultra vires the Defendants.

The second argument of Counsel that the Board constituted by President Goodluck Jonathan on 23^rd April, 2013 is incomplete and inchoate cannot under any circumstance emanate from the Defendants. That could have been the argument of the Claimant had the Board exercised its power and duty to withdraw him from his residency which is not the case herein.

Furthermore, in his Reply on Points of law the Learned Counsel for the 1^st -3^rd defendants submitted that “the claimant was not withdrawn under clause 6 of Exhibit A-A2 which required notice but rather under the authority conferred by Chapter3, Section2, 030205 of the Public Service Rules” The submission of the learned counsel did not take in consideration that the requirement of one month’s notice by either party is mandatory under the said clause 6 which is being relied here which notice was not given thereby making the withdrawal wrongful.

Not only that the said Chapter3, Section2, 030205 of the Public Service Rules provides thus:

 REMOVAL OF TEMPORARY STAFF FOR INEFFICIENCY

030205.-       Permanent Secretaries/heads of Extra-Ministries Offices are authorized, subject to the provisions of the Labour Act (Cap. 198) and of individual letters of consideration for appointment (from Gen. 69 and Gen 69A) to terminate the employment of temporary staff at their discretion provided that prior to the termination of any such staff the officer has been informed of the grounds on which it is proposed to terminate his/her appointment and has been given an opportunity to submit representations on why he or she should not be terminated. Similarly, prior to the termination of an officer’s service for inefficiency, such officer shall be warned of his/ her shortcomings and given opportunity to improve or to offer a satisfactory explanation of his/her failure to perform his duties efficiently.

However, the withdrawal in the aforesaid Rule is not absolute as it is guided and qualified by Rule 030103 of that same section and same Chapter which provides that. -     

The Federal Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of extra-Ministerial Offices in respect of officers on Salary GL. 13 and below with the exception of the power of removal which has been delegated only from GL. 06 and below.

Therefore, besides the fact that the defendants failed to give notice as required by clause 6 aforesaid and failure to follow the procedure as stated for withdrawal under that Rule 030205. The claimant herein is not a temporary staff perse by a trainee/employee for a fixed period as a Senior Registrar II on the salary scale of CONMESS 3/2 which is Grade level 13, Rule 030205 is therefore in applicable to the claimant.

From the foregoing, I find and hold that the withdrawal of the Claimant from his Residency Programme is ultra vires the 1^st and 3^rd Defendants in that they do not have such power which solely resides with the Board of the 1^st defendant and the 2^nd defendant on record, these claims have to that extent succeeded.

But assuming that the 1^st, 3^rd and 4^th defendants Defendants have the power with the exclusion of the 2^nd defendant to withdraw the Claimant from his Residency Programme when they did, it is obvious that the withdrawal approximates to a termination or dismissal of his programme. The law is settled that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court, see the cases of Shell Petroleum Co. Ltd v Chief Victor Sunday Olanrewaju (2008) 18 NWLR (Part 1118) 1 at 19H to 20 A - B and Olatunbosun v N.I.S.R. council (1988) 1 NSCC (1025) 1988 3 NWLR (Pt. 80) 25@ 52, paras. A-F

The reasons given for the withdraw of the Claimant from the Residency Programme are contained in Exhibit M which is a reply to his appeal and they are reproduced hereunder as follows:

REF. NO. DA/36/Vol. III/239                                        25^th July, 2013.

Dr. Gbenga Olorunfemi,

Senior Registrar,

Flat 14,

LUTH Staff Quarters,

Idi-Araba, Lagos.

RE: NOTICE APPEAL

Your letter dated 11^th July, 2013 on the above-stated subject refers.

I wish to inform you that your request for a copy of the Report of the Panel of Investigation into the death of a patient, Mrs. Ronke Akingbehin, was not granted.

You may however note the following:

1.     You were the Senior Registrar in charge of the Labour Ward (Emergency) on the 1^st March, 2013; hence Mrs. Akingbehin was directly under your care at the material time.

2.     It was improper and unacceptable that you did not take Mrs. Akingbehin to the theatre between 9.00 am and 12 noon on the said date.

3.     Your reasons for not taking Mrs. Akingbehin to the theatre as aforesaid were not tenable.

4.     Your faulty judgement of her case in the circumstances delayed the surgery particularly between 9.00 am and 12noon when no surgery was being performed in the theatre.

Thank you.

AYO’ OLAGUNJU

DIRECTOR OF ADMINISTRATION

FOR: CHIEF MEDICAL DIRECTOR

From that Exhibit M, the reasons can be summarised thus: that the Claimant was directly in charge of the late Mrs. Akingbehin when he failed to take her to the theatre between the hours of 9am to 12 noon on the date of incident.

CASE NOTES (FILE)

The Claimant pleaded the case note (file) of the said Ronke Akingbehin (deceased). The Defendants also pleaded the said case note (file). Both parties agreed that all that transpired in this case are noted and or recorded in the said case note. The parties also agreed that the said case notes(file) was  in the possession of the Defendants.

During trial the Defendants sought to tender a photocopy of the said case notes(file) which was objected to by the Claimant who insisted on production of the original case note(file). On the ground that the photocopy is a mutilated and tampered version whereupon the Court made a specific order on that 18th day of May 2015 for the defendants to produce the original case notes (file) in court.

By a motion dated 1^st of June, 2015 the Learned Counsel for the 1^st -3^rd Defendants asked the Court to vary its own order for the production of the original case note(file) in this case.

The Court in a considered ruling dated 3^rd July 2016 refused to vary the  said order for the production of the original case note(file). But allowed them to tender any version in their possession pending when they find the alleged missing original case (file) whereupon they tendered a copy certified on 14^th January, 2016, which was admitted and marked as Exhibit DH-DH44.

The order of the Court for the production of the original case notes (file) was made on 18th day of May 2015 and the 1^st-3rd defendants tendered a copy that was certified on14^th January, 2016.  The question to ask here is for what purpose was the certification of that 14^th January, 201614 done and why would the file get missing thereafter.

Even a look at the said Exhibit AH-AH44 shows that it was variously mutilated and re- numbered.

Not only that the following evidence were given by some of the witnesses about the original case note(file).

1.     Dr. Olorunfemi CW1:

Testified that the photocopy tendered is a tampered version. That some of his endorsements on the file have been removed.

2.     Dr, Sanusi,

That her entries on the file have been re-arranged, altered and tampered with. That she saw the original case file last in the office of the Administrative officer (Legal) of the 1^st defendant, when she was being prepared by Counsel for the 1^st-3^rd defendant for her testimony in this case.

3.     Dr. Makwe:

Admitted making entries on the file on the 6^th day of March, 2015 after 5 days of the incident. He equally admitted seeing the original case (file) with both the first and second Panel meetings.

A look at the record of the proceedings of the Panels both first and second Panel meetings stated clearly that they arrived at their conclusions after studying the case note(file).

From the foregoing, I find that the case note(file) is not missing, rather the 1^st -3^rd Defendants deliberately withheld the said case notes, from the Court.

The foregoing finding is re- enforced by the fact that the 1^st -3^rd Defendants tendered some documents which formed part of the case note(file) separately, for instance Exhibit DG-DG3 (Patient’s details or pre-printed label).

I have said that a look at the said Exhibit DH-DH44 will show obvious mutilations, that Exhibit DH-DH44 was therefore prepared for the purpose of tendering it instead of the original which is withheld. This is against Section 91 (3) of the Evidence Act See Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184 at 219-220 @263.  Nike Tobi, JSC in Araka v. Egbue (2003) 33 WRN 1, 15-17)-said that in this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of section 97 (2) (a) of the Evidence Act could be doctored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks. See also Ogboru v. Udaghan (2011) 2 NWLR (Pt.1232) 608 at 574-575, para H-C per Dongban-Mensem JCA.

In all I hold that the 1^st -3^rd Defendants deliberately withheld the original case note (file) knowing that if it is produced it will work against their case. See Section 167 of the Evidence Act 2011, consequently Exhibit DH -Dh44 is hereby discountenanced. I shall deal with the case on the strength of testimonies of the witnesses.

The DW4, Irene Chineto Nweze (Nurse) moved the patient (Ronke Akingbehin) from the ward C4 to Labour ward about 6.30am on that 1/3/2018 the day ordinarily she was scheduled for elective caesarean section.  Under cross examination she admitted that she did not hand her over at the door of the labour ward as was the protocol, but she wheeled her into suite 2. She further admitted under cross examination that she did not collect the anaesthetic pack and shopping list of the patient and that as at the time of moving the patient she has not done any of the essential requirements for surgery.

There is evidence that those that did night duty handed over about 8am on that 1/3/2015. But there is no evidence of handing over the late Ronke Akinbehin rather the evidence of Dr. Mojisola Sanusi (DW3) is that she on her own opened suite 2  (wherein DW4 wheeled her into)and saw her there, whereupon she now informed the Claimant about her, took permission to review her and consequently, excused herself from the ward round. That this was around 9:05am, that she instructed Dr. Adeneye (house Officer) to collect blood sample from the patient which he did, whereupon she requested for investigations and wrote out prescription for operative materials and wrote consults for Anaesthetist and paediatrician on duty. That she finished about 9:30 am briefed the Claimant which briefing ended about 9:45, that she stated preparing the patient for surgery. That she connected her to a cardiotocograph machine. That she observed the patient until the consultant Dr Makwe arrived about 11:00am and reviewed the patient, in a ward round together with her, the Claimant and others.

That the consultant ordered her to change that particular cardiotocograph machine to the one that can print which she did. That at least a minimum of 30 minutes was needed before that machine can print out its message. That at that point it was impossible to have conducted any surgery on the case patient.

That the case of Kemi Tejani was more critical and needed urgent attention then, than the late Ronke Akingbehin. That there was no evidence on the file that cross-matched blood was ready.

That she had a photocopy of the original case note (file) of the late patient but the 2^nd Panel told her that it was illegal and mandated her to surrender it which she did.

That there is usually a consultant in charge of labour ward for 24 hours. That lack of theatre space delayed the surgery of the patient, that out of the 2 (two) theatre spaces only one was functional. I have to state here that the learned counsel for the 1^st -3^rd defendants declared her a hostile witness and crossed examined her. Despite declaring her a hostile witness the learned counsel quoted and relied on her evidence heavily in his final written address, the implication is that counsel has abandoned that declaration. In any case, I watched the witness testify. She was very calm and relaxed. She was the Doctor that first reviewed the witness on that day. I find her as a truthful witness and I so hold.

From the evidence of Dr. Makwe (the consultant) the late patient registered under him as the consultant. He conducted ward round about 10:45 to 11:00 wherein she reviewed the patient. (see paragraph 9 of the DW13E).

He personally handed the patient case note to the Anaesthetists (Dr. A. O. Olowu) and discussed the patient with them.

That he identified 3 emergency cases and directed that caesarean section be carried out in order of priority as follows Ronke Akingbehin, Mrs, Tijani Kemi and Bello Morayo. That he instructed Dr. J. O. Offor to assist the Claimant with the emergency surgeries.

Under cross-examination he confirmed that he sent a text message to the Claimant which read thus: “Good day, hope you have documented all my instructions and plans, I have asked Dr. Offor on elective to assist you in the placenta previa and previous myomectomy”

From the foregoing I find the following facts:-

1.     That the late patient Mrs Ronke Akingbehin registered her ante-natal under Dr Makwe(DW13) the consultant herein.

2.     That the Claimant was not aware of the case of the late patient until briefed by Dr sanusi(DW3) on that 1/3/2013 and that was about 9:00am.

3.     That his instruction to Dr Sanusi(DW3) to review the patient was in order and normal practice.

4.     That as at the time Dr Sanusi concluded her review of the patient and briefing the patient (between 9:30-9:45) the patient was not ready for surgery as non of her essential requirements for surgery was ready, DW4 admitted no test was conducted, surgery requirements and  anaesthetic bag were not transferred.

5.     That blood sample was collected under DW3 and consult made for anaesthetic,

6.     That DW 13( Dr. Makwe), personally handed the file to anaesthetic he said about 11:05 but the original deposition of Dr. Olowo said 11:30 .

7.     Dr . Makwe also gave instruction  to the doctors to “facilitate availability of blood”.

8.     That Dr. Makwe as consult became in charge from 10:45 when he arrived until he left for Accident and emergency ward.

9.     That from Dr Makwe’s text message his instruction in order of priority was as follows: - placenta previa(first) and previous myomectomy(second)

From the foregoing therefore, the Claimant was in charge of the patient from 9:00 to 10:45 before the consultant arrived. During which period the patient could not have been sent to the theatre for lack of essential test and necessary materials for surgery.

Secondly, the consult became in charge until he left, and that was certainly after 12:00.

Thirdly upon leaving the consult Dr. Makwe left an instruction on the order of priority of surgery to the effect that placenta previa and previous myomectomy, by naming placenta previa(Kemi Tijani) first before previous myomectomy(Ronke Akingbehin) indicates order of priority I, so find and hold, the claimant therefore cannot be faulted on error of judgement by first of all taking Kemi Tijani first into theatre.

Above all, the absence of theatre space grossly affected the delay in the caesarean section operation of the late patient on that day.

I therefore hold that the Defendants have failed in justifying their findings that between the hours of 9am to 12noon the Claimant was in charge of the late patient and neglected to send him to the theatre. I equally hold that the defendants failed in their finding of error of judgment on the part of the claimant for sending Mrs Ronke Tijani first to the theatre before the deceased patient.

The act of the Defendant in withdrawing the Claimant’s from his Residency Training programme ought to be set aside and I hereby set it aside.

In respect of claims 4 and 8, from exhibit A-A2 the possessory right of the claimant in respect of that Flat 14, LUTH Compound is tied to his residency programme, in that he is entitled to the possession until 6months after the programme. Since the withdrawal of his residency programme has been set aside the content of the said exhibit A-A2 shall abide.

In respect claim 6, I have earlier held in this judgment that the status of the claimant is that of trainee/employee for a fixed period guided or protected by statutes. At the time that the incident which gave right to this suit happened, the claimant had about 17months to complete his progrmme. He is therefore entitled to be reinstated back into his residency programme for the period left to complete same which I hereby grant.

In respect of claim 9, because of the fixed nature of the claimant’s residency programme which is 3years with a possibility for extension for another three months which period has now lasted for more than 6years, with the claimant being in court for more than 5years, he is entitled to damages. It is also important to take into consideration the evidence that the claimant has permanently lost his seniority to his juniors. I therefore award the claimant his 2 years annual salary as damages in compensation thereof, See Order 55 Rules 1, 4 and 5 of the National Industrial Court Civil Procedures Rules 2017.

Considering further the fact that this case suffered several and multiple adjournments spanning more than 5 years, 16 witnesses testified with the defendants calling 15 of the 16 witnesses, the claimant had to cross examine 15 witnesses for multiple days and the claimant was cross-examined for multiple days by the defence counsel. The defendants initially filed 12 witness statements on oath afterwards, filed 8 amended witness statements on oath, Mr. Olajide (DW10) filed additional 2 witness statement on oath, 5 fresh oaths were then filed towards the end of the suit. The defendants filed 27 witness statements on oath and the Claimant had to prepare for them all. The claimant is entitled to cost which I assess as N500,000.

In all, I make the following orders:

1.   I hereby declare that the withdrawal of the claimant from his Residency Training Programme with the Lagos University Teaching Hospital vide a letter dated 25^th June 2013 is illegal, null, void and therefore set aside.

2.    The Claimant is hereby reinstated back to his Residency Training Programme with the 1^st defendant forthwith with all the rights and privileges attached thereto for the remaining period of about 17months to complete the programme, the calculation of which shall start from the date he commences the progamme and the claimant shall resume the programme within 90 days from the date of this judgment.

3.   The Claimant is entitled to the possession of that Flat 14, LUTH Compound, Idi Araba, Surulere, Lagos State pending the completion of his Residency Training Programme with the 1^st defendant.

4.   The defendants shall pay the claimant the sum of N3,774,610(being his 2 years salary) as compensation in general damages for the trauma, pains and agony suffered from the wrongful and null withdrawal from his residency programme.

5.   The defendants shall pay the claimant the sum of N500,000 being the cost of this suit.

6.   The defendant shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 10% interest per annum until fully liquidated.

Judgment is entered accordingly.        

                        ……………………………………………

                             Hon. Justice K. I. Amadi, Ph.D.

                                                (Judge)