IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: MONDAY 26TH OCTOBER  2020                     SUIT NO.NICN/EN/13/2019

 

BETWEEN:

 

PROF. O.F.N. OZOEMENA……………………………….CLAIMANT

                  

AND

 

UNIVERSITY OF NIGERIA TEACHING 

HOSPITAL MANAGEMENT BOARD                         DEFENDANTS                                         

MINISTER OF HEALTH

 

APPEARANCES:

V.C. ODO WITH VICTOR ONWE – FOR THE CLAIMANT.

N.N. UKO WITH SUNDAY EZE – FOR THE 1ST DEFENDANT.

COUNSEL TO THE 2ND DEFENDANT ABSENT.

 

JUDGMENT

INTRODUCTION

ORIGINATING SUMMONS commenced this case on 2nd April 2019. Amended Originating Summons was filed 28th June 2019. The claimant formulated the following questions for answer:

Whether age limit of 57 years is a statutory requirement for appointment as Chief Medical Director of University of Nigeria Teaching Hospital, Ituku/Ozala under its extant laws and conventions. [sic]

Whether the respondents are at liberty to add any requirement for applicants to the position of Chief Medical Director of UNTH regardless of what the law regulating the institution provides. [sic]

Whether any purported inclusion of extra statutory requirement is null, void and of no effect whatsoever. [sic]

The claimant also formulated the under-listed reliefs against the defendants:

A declaration that under the University of Nigeria Teaching Hospital Management Board Act, CAP U12 LFN 2004, University Teaching Hospital (Reconstitution of Boards etc) Act, CAP U15 LFN 2004, the Guidelines or conventional requirements for appointment of Chief Medical Director of University of Nigeria Teaching Hospital Ituku/Ozala age limit of or under 57 years is not part of the requirement or condition for appointing an applicant as the Chief Medical Director of UNTH.

A declaration that there is no different age requirement outside 65 and 70 years minimum retirement age for Medical Consultants and Professors respectively working in Federal University Teaching Hospitals in Nigeria inclusive of UNTH for appointment of Chief Medical Director of any Federal Teaching Hospital in Nigeria.

A declaration that the novel inclusion of age limit of 57 years which was not even there when the incumbent Chief Medical Director was appointed is mischievous, malicious and smacks of using public office to pursue personal vendetta.

A declaration that the advertisement that included the age limit of 57 years contrary to law, practice and guidelines is null, void and of no effect whatsoever so is any step taken pursuant to the defective advertisement in the purported process of appointing a Chief Medical Director for UNTH.

An order compelling the 1st defendant to republish the advertisement of the position of Chief Medical Director with fresh time line for applicants which will not include the offensive age limit of 57 years or any age limit contrary to the appropriate retirement age of each cadre of Medical Personnel in Federal University Teaching Hospitals in Nigeria.

N10,000,000.00 payable to the claimant as general damages for his wrongful exclusion or disqualification from the position of Chief Medical Director (CMD) of University of Nigeria Teaching Hospital, Ituku/Ozala.

 

In reaction to the above, the 1st defendant filed a counter-affidavit on 07/06/19 and further counter-affidavit on 05/07/19. In reaction, the 2nd defendant filed counter-affidavit on 08/07/2019 and; subsequent to the amendment of the originating summons, another counter-affidavit on 06/08/19. In reply to the counter-affidavit of the 1st defendant, the claimant filed further-affidavit 28/06/2019. In further reply to the further counter-affidavit of the 1st defendant on 05/07/19, the claimant filed reply to 1st defendant’s further counter-affidavit 19/07/19. In reply to the counter-affidavit of the 2nd defendant filed 06/08/19 against the amended originating summons, the claimant filed further-affidavit 19/07/2019. That is all about the summary of the processes filed. I move to the proceedings before the Court.

 

PROCEEDINGS

The matter came up first before me on 13th May 2019 for mention. It came up on 18th June 2019 and the Court granted the application of the 1st defendant to regularise its defence processes. Thereafter, the case was adjourned for definite hearing. On 10th July 2019, the Court granted the application of the 2nd defendant to regularise her defence processes and the case adjourned for mention and subsequently adjourned, on the 4th February 2010 to 25th March 2010 for hearing. But this could not be, because of the COVID-19 Pandemic. It eventually came up the 27th July 2020 for hearing. 

On this date, the learned counsel to the 2nd defendant was not in Court, but the learned counsel to the 1st defendant conveyed to the Court, information from the 2nd defendant about inability to attend Court due to the short notice and; that, the Court should deem the defence processes of the 2nd defendant as adopted. Thereafter, the learned counsel to the claimant and the learned counsel to the 1st defendant adopted their relevant processes. The learned counsel to the claimant orally referred the Court to Nweke v. FRN (2019) Vol. 297 LRCN p. 202 at 223, F-K while the learned counsel to the 1st defendant urged the Court to dismiss the suit. 

Thereafter, the case was adjourned to 12th October 2020 for judgment. It was not ready on this date and was therefore adjourned sine die. Subsequently, when the judgment was ready, date was communicated to the learned counsel to the parties. 

Having done with the summary of proceedings before the Court, I move to the next burden, that of summary of the cases presented to the Court by each of the parties in their affidavits. 

 

CASES MADE BY THE PARTIES AND THE EVIDENCE

A. Case of the Claimant

I found that the affidavit filed in support of the original originating summons and the amended one are the same. I therefore proceed to summarise the one attached to the amended originating summons and discountenance the first one. The claimant deposed that, he is an employee of the 1st defendant, who had advertised in the media the position of Chief Medical Director [CMD] of the University of Nigeria Teaching Hospital Ituku/Ozala [UNTH]. The claimant deposed further that, one of the conditions for vying is that, the candidate must not be above 57 years and that he was above 57 years. He deposed that, he was otherwise qualified and that; as a result, he and others affected protested to the Chairman of the Board that the age limit of 57-year was unlawful. The claimant also deposed to the functionality of the computer used in printing some of the exhibits attached. He deposed too, that, the age-limit was discriminatory against those hated by the CMD of the UNTH. 

That is all about the affidavit in support of the amended originating summons, wrongly tagged “affidavit in support of originating summons.” I move to the counter-affidavits of the 1st and 2nd defendants.

 

B. Cases Made By the 1st and 2nd Defendants

The 1st defendant filed counter-affidavit on 07/06/19 [p. 45-46] via Mrs. Vivian Ozor-Nwafor, who deposed that, she believed there was nothing strange about age limit imposed in the advert for the post of CMD of UNTH. The deponent said the advert was made 31/12/2018 while this suit was filed 2nd April 2019. The deponent further said the President and Federal Government could impose conditions for appointment of the CMD of UNTH at any time and; that, the 1st defendant is agent of the federal government. She deposed further that, the advert was not targeted at the claimant personally. She deposed too, that, necessary conditions could be set at any time for contest to the post of CMD of the UNTH and; that, such would not amount to witch-hunting the claimant and; that, this information she got from N.N. Uko. That is all about the counter-affidavit. 

The 2nd defendant filed counter-affidavit on 06/08/19 [p. 301-303]. This counter-affidavit is against the amended originating summons, though wrongly tagged “in support of the amended originating summons”. Nasiru Ahmed deposed this counter-affidavit. The deponent said, assuming that age limit was imposed, it was imposed to prune down the multitude candidates and; that, any candidate that is above 57 years might not finish even his first tenure in office; and as such, would not concentrate to render effective service. The deponent said, notwithstanding the advert in issue, the name of the claimant would still be forwarded to the President, who might choose anyone he pleases, even outside the list. The deponent said the claimant ought to have complained to the person with the ultimate power to appoint, instead of against the mere administrative procedure. 

That ends summary of the counter-affidavit of the 2nd defendant; and the counter-affidavits of the parties. I move to the replies of the claimant to these counter-affidavits.

 

C. Further Justification of the Claimant’s Case

The claimant filed further-affidavit against the 1st defendant’s counter-affidavit on 28/06/19 [p. 124-125]. The claimant, who is the deponent, replied that, everything is strange about the age-limit imposed, as it has never been made part of the contest. He also replied that, he followed administrative procedure before coming to Court and; that, the position had been filled by issuance of appointment letter to the incumbent whereas, his injury continued from 31/12/18-22/5/19 when it ceased at the appointment of the CMD. In the claimant’s further-affidavit against the counter-affidavit of the 2nd defendant [p. 226-227], the claimant replied that, he was actually excluded from the contest by virtue of Exhibit A1 on account of age and; that, contrary to the deposition of the 2nd defendant, the President always acts on the advice of the 1st defendant, in filling the post of the CMD of UNTH and did in this instance. The claimant also said the 2nd defendant wields heavy influence on the 1st defendant and its CMD by virtue of her supervisory roles and; that, she actually handed the current CMD the letter of appointment. 

The above is all about the affidavits by the parties that I am ready to countenance. Though, others abound in the case, I shall not countenance them. I shall give my reasons anon. I now move to summary of the written addresses of the parties. 

 

 

 

SUMMARY OF THE WRITTEN ADDRESSES

A. Claimant’s Written Address

V.C. ODO franked the written address and formulated three issues, to wit:

Whether the defendants or any of them is competent to add to or subtract anything from the requirements or conditions prescribed by the statutes to wit: University of Nigeria Teaching Hospital Management Board Act, CAP U12 Laws of the Federation of Nigeria 2004 and University Teaching (Reconstitution of Boards Act ETC) Act, CAP U15 Laws of the Federation of Nigeria, 2004. [sic]

Whether having regard to the provisions of the extant laws on the subject of appointment of the Chief Medical Director the inclusion of the age limit of 57 years for the appointment of CMD for UNTH and any steps taken pursuant thereto ought not to be declared null and void by the Honourable court. [sic]

Whether the plaintiff who looks up to the position of Chief Medical Director as the zenith of his carrier [sic] in the service of the 1st defendant is not entitled to damages for the pain and suffering, inconvenience and despondency occasioned to him by his apparent disqualification on account of the offensive advertisement. [sic]

 

In arguing issue 1, which is whether the defendants could vary the conditions prescribed in the relevant statutes, the learned counsel submitted that, the defendants are not competent, not being the legislatures that made the laws and cited Abubakar & 3 Ors v. Nasamu & 5 Ors  (2011) 11-12 SC (Pt. 1) to the effect that, once a statute prescribes the mode of doing a thing, only that mode must be followed. The learned counsel further cited some other authorities to the same effect. The learned counsel cited the preface to the University Hospitals (Reconstitution of Board) Act [UTHRBA] to the effect that, its purpose is to make uniform administrative structure, functions and compositions for the federal teaching hospitals. The learned counsel cited section 5(2)(a) of the UTHRBA that, it provides the conditions to be met by a person who aspires to be the CMD for all the federal teaching hospitals in Nigeria. The learned counsel urged the Court to hold in favour of the claimant and moved to issue 2.

On issue 2, which is on prescription of 57 years, the learned counsel argued that, this ought to be declared null in view of the fact that, once a statute prescribes the mode of doing a thing, obedience is mandatory; and cited Abubakar v. Nasamu’s case [supra] before moving to issue 3. 

Under issue 3, which dovetails on entitlement to damages, the learned counsel argued that, the Court of Appeal awarded damages for pain and suffering to the plaintiff, who was unlawfully denied participation in admission processes to an institution; and cited JAMB v. Wickliffe & Ors (2005) ALL FWLR (Pt. 251) 255 at 278. The learned counsel ended the address, by urging the Court to grant the reliefs prayed. 

I now move to summary of the written addresses of the defendants.

 

B. Written Address of the 1st Defendant

N.N. UKO (MRS.) franked the 1st defendant’s written address. In reply to issue 1, as digested by the learned claimant’s counsel, the leaned counsel to the 1st defendant submitted that, nothing has been added to UTHRBA, contrary to the argument of the learned counsel to the claimant, but rather gave weight to the interpretation of the law. The learned counsel cited section 5(1) & (2) of the UTHRBA and submitted that, the learned claimant’s counsel gave it a narrow interpretation. The learned counsel argued that, the 1st defendant, as agent of the federal government could set down terms and conditions, as envisaged in section 5(1) and; that, the publication being attacked, has not infringed the section. The learned counsel submitted that, the case cited by the learned counsel to the claimant was not relevant; and after urging the Court to resolve this issue in favour of the 1st defendant, moved to issue 2.

Replying to issue 2, the learned counsel argued that, section 1 of the UTHRBA recognised the Board as agent of the federal government and; as such, the inclusion of 57 years limit in the advert for appointment of CMD was lawful. The learned counsel quoted the phrase ‘…terms and conditions as may be determined from time to time…” as justifying the imposition of the age limit. Thus, ended arguments on issue 2 and the learned counsel moved to issue 3. 

In reply to issue 3, the learned counsel to the 1st defendant argued that, the interpretation the claimant gave to the imposition of age limit was mischievous and; that, the imposition of age limit was the collective decision of the federal government, as represented by the Board and never a personal decision of the CMD or the CMD’s vendetta. The learned counsel argued that, the claimant has not shown, how the publication in compliance with the law, could cause injury to entitle the claimant to damages. The learned counsel argued that, the publication in issue was made in December 2018 and the claimant waited till April 2019 to bring this action. The learned counsel argued that, it is clear that, the intention is to destabilize the smooth transition and thereby cause strife against whomever emerged as the new CMD.

The learned counsel argued that, the Labour Act does not apply to the claimant by virtue of its section 91(2), which excludes those employed for administrative and technical skills. The learned counsel argued that, in such situation, the terms and conditions of employment governs the employment relations. The learned counsel argued that, the claimant failed to show which statute was infringed by the imposition of the age limit, which was not peculiar to the claimant alone. The learned counsel argued that, the claimant falls under the category of ‘non-worker’ whose employment rights are governed strictly by the terms and conditions of employment. The learned counsel cited Adekunle (RTD) v. Rockview Hotel Ltd (2003) 4 FR at 99 to the effect that, he who asserts must prove and submitted that, as the claimant has not proved any injury, he is not entitled to damages. The learned counsel argued further that, the claimant has failed to show which provision of the Act dealt with the age requirement. The learned counsel argued that, since the UTHRBA did not indicate any age limit, the claimant must rely on the terms and conditions of contract. At the end, the learned counsel urged the Court dismiss the case with cost.

Thus, ended the 1st defendant’s written address. I move to that of the 2nd defendant.

 

C. 2nd Defendant’s Written Address

A.A. SHAMAKI franked the 2nd defendant’s written address. Since defendants have no business formulating issues in originating summons, I discountenance the issues formulated by the learned counsel to the 2nd defendant – see NJC & Ors v. Ajana (2014) LPELR-24134 (CA) 30, B-D. 

The learned submitted against the address of the learned counsel to the claimant that, by virtue of section 7 of the UTHRBA, the defendants have nothing to do with the appointment of CMD and; that, the publication is mere administrative duty; as the President may appoint the CMD, even outside the list submitted to it by the defendants. The learned counsel argued that, the person to complain against is the President, who is the ultimate appointer and not the defendants. The learned counsel argued that, the claimant could not complain that, by the pre-qualifications published, the defendants have deprived him the right of being considered for the appointment. 

The learned counsel further argued that, this suit is academic and cited NDP v. INEC 52.3 NSCQR 947. The learned counsel argued that, it would not make any difference if the Court holds that the publication prescribing age limit was unlawful, as it would not change the appointment that has been made by the President in his absolute discretion by virtue of section 7 of the UTHRBA. And for this reason, the learned counsel submitted, this suit is academic and cited NDP v. INEC [supra] and Plateau State v. AGF 25 NSCQR 197 at 236. 

The learned counsel argued further that, section 5 of the UTHRBA, construed along section 5 of the Constitution, gives the President the right to exercise His executive powers via His agents, like the 1st defendant’s Board; hence, the age limit advert, which the claimant complained of, is lawful, being pursuant to section 5 of the UTHRBA.  The learned counsel submitted that, since section 5(1) of the UTHRBA is unambiguous, it should be given literal interpretation. Thus, ended the 2nd defendant’s written address. I move to the Reply on Points of Law [RPL] by the claimant.

 

D. Replies on Points of Law

V.C. ODO franked the RPL against the address of the 1st defendant. I shall only bother myself with reply on points of law stricto sensu. The learned counsel argued that, since the 1st defendant did not challenge paragraph 5(iv) of the claimant’s affidavit, it is deemed admitted, citing Re: Adejumoke Odutola (2007) FWLR (Pt. 119) 1624 at 1633. The learned counsel argued too, that, the Labour Act referred to, by the learned counsel to the 1st defendant, is most irrelevant. The learned counsel submitted that, the UNTH Scheme of Service prescribed 65 years for non-professors and 70 years for professors, as retirement ages and; that, the depositions to these effects in paragraph 5(iv) of the affidavit supporting the originating summons were not challenged by the 1st defendant. The learned counsel argued that, by virtue of these facts, the 1st defendant has no right to exclude people below these age-brackets from participation and; that, it was therefore unjustifiable for the 1st defendant to exclude these people, who met the qualifications. The learned counsel argued that, the discretion allowed in section 5(1) do not relate to qualifications for employment, but to terms and conditions of service, for someone already chosen, having qualified for the post of CMD.

Replying on the issue of not proving damages, the learned counsel argued that, the claimant had deposed to the facts that he lost money in the efforts to obtain redress and; that, he suffered pains and; that, damages arise logically from the presumed loss, citing UAC of Nigeria Plc v. Irole (2002) FWLR (Pt. 113) 351 at 362-363 and Iyang & Ors v. Ebong (2002) FWLR (Pt. 125) 703 at 749-750 to the effect that, it is not necessary to plead or prove general damages, as they flow naturally from the negligence complained of. That is all about proper replies on points of law. All those arguments not summarised are outside RPL, by either being repetitious or trying to repair inadequacies in the previous address, while the objection against the counter-affidavit of the 1st defendant, was irregularly raised. Any objection against procedural irregularities must be raised timeously – see Order 5, Rule 2 of the NICN Rules 2017. I now move to the RPL against the 2nd defendant’s address. 

V.C. ODO also franked this address. The learned counsel started by attacking the counter-affidavit of the 2nd defendant. Just like I said earlier above, the written address is not the place for this, by virtue of Order 5, Rule 2 of the NICN Rules. The Court undoubtedly has discretion to allow the use of defective affidavit – see Gangar & Anor v. Bako & Ors (2019) LPELR-48672 (CA) 10-11, A-B. There is no dispute that the counter-affidavit was duly deposed to before commissioner for oaths. I have read and comprehended it. Though, I agree it is wrong for counsel or party to embark on unnecessary innovations where the law prescribed a specific form for a court’s process – see Olafisoye v. FRN (2004) LPELR-2553 (SC) 37, E-G. Nonetheless, I will countenance it because; the Court has discretion to countenance an affidavit defective in form, which defect does not affect its substance. 

That ends that. The learned counsel argued that, discretionary power cannot be absolute, as argued by the learned counsel to the 2nd defendant and cited Ideozu & Ors v. Ochoma & Ors (2006) ALL FWLR (Pt. 308) 118 at 1207 and CBN v. Okojie (2002) 3 SC 99 at 104 and; that, all discretions are circumscribed by the statute granting them. The learned counsel argued that, section 6 of the Constitution forbids absolute discretion, as the courts are given powers to intercede. The learned counsel ended by saying, he did not wish to be repetitious; and urged the Court to grant the claimant’s reliefs. May I say, in passing too, that, if he is repetitious, I am not bound to countenance the repetitions, as I have already done.

That ends summary of all the necessary written addresses. I am now left with the sacred duty of giving my decision, backed up with judicial reasoning and authorities. In doing this, as is the norm, I have carefully read all the processes in the suit and digested the contents. I have factored in the fact that, this is a suit fought on affidavits. I therefore take cognisance of the facts that; affidavits take the place of pleadings and evidence rolled into one. I have also taken cognisance of the rules of resolving conflicts in affidavits. I have also taken pains to check the important authorities cited: statutes and cases. I have also taken efforts to do my own research on the relevant authorities. 

I wish to state that, in giving my decision, I would divide it into two parts for the sake of convenience. The first part shall deal with preliminary points, while the second shall deal with the substantive suit. Off to my decision I go.

 

COURT’S DECISION

Part A: Preliminary Points

The two issues I propose to treat preliminarily here are the issues of deeming the processes of the 2nd defendant adopted and that of the extra affidavits filed by the parties against the rules. I take the issue of deeming adopted first. I have recorded via the proceedings that the learned counsel to the 1st defendant related to the Court message of the 2nd defendant that the processes be deemed adopted in their absence. Thereafter, I proceeded to take the adoptions of the claimant and the 1st defendant without formally deeming the processes of the 2nd defendant adopted; and, still failed to do this after the adoptions of the parties present on record. This is clearly an omission on the part of the Court. But it appears to me that such omission is not fatal since the effect of the deeming order is to treat the processes of the 2nd defendant and they have been treated. In effect, by legal fiction, the processes were deemed actually adopted; and I so hold. I move to the second issue.

The 1st defendant filed further counter-affidavit on 5/7/19 [p. 137-138] accompanied by written address. Likewise, the claimant filed Claimant’s Reply Affidavit to 1st Defendants [sic] Further Counter-Affidavit. I cannot countenance these processes. In cases fought on affidavits, affidavits take the places of pleadings and evidence. Processes and procedures are based on rules. The further affidavit of the claimant is the final, in cases fought on affidavits, like the reply pleadings, in cases fought on pleadings –Wahab & Anor v. Aliyu (2015) LPELR-40395 (CA), B-C. 

So, if further counter-affidavits or reply to further counter-affidavit are to be filed, or any further affidavit at all, by whatever name called, leave must be sought and obtained, just like in cases fought on pleadings. If not, the affidavit would have been filed irregularly and liable to be discountenanced. More so, when these irregular affidavits did no more than to repeat or try to bring in facts, which the parties ought to have brought in earlier, or which does not change the position of things because, issues had been properly joined. In such situations, it is absolutely abuse of process to file needless affidavits. There must be an end to pleadings and evidence – Wahab & Anor v. Aliyu [supra] 27-28, F-B. The 1st defendant’s further counter-affidavit filed 5/7/19 and the claimant’s reply affidavits are therefore, hereby discountenanced.

Done with this, I move to the substantive suit.

 

Part B. Decision on the Substantive Suit

I held earlier that the defendants have no business formulating issues in originating summons. I therefore adopt the issues formulated by the claimant, which were already reproduced at p. 6 above. And in doing this, I take issues 1 and 2 together.

Issues 1 & 2, deal with the propriety of prescribing 57 years age limit and others, as conditions precedent to vie for the post of CMD in the 1st defendant. The claimant has argued, via his counsel that, where a statute has prescribed the manner of doing a thing, no procedure other than as specified, could be followed, without being declared a nullity. The defendants jointly argued that, being agent of the federal government, the Board of the 1st defendant lawfully made the conditions precedent. Both sides relied heavily on sections 5(1)&(2)(a) of the UTHRBA. For the sake of clarity, it is necessary therefore, to reproduce this focal section. Section 5 provides thus:

“(1) There shall be for each hospital a Chief Medical Director who shall be appointed by the President on such terms and conditions as may be specified in his letter of appointment or as may be determined from time to time by the Federal Government.

(2) The Chief Medical Director shall –

(a) be a person who is medically qualified and registered as such for a period of not less than twelve years, and has had considerable administrative experience in matters of health and holds a post-graduate medical qualification obtained not less than five years prior to the appointment as Chief Medical Director…”

 

The claimants and the defendants have tried to place divergent interpretations on the underlined portions of the quotation. While the defendants are of the view that, those portions give to the federal government powers to make conditions to streamline the number of contestants to the post of CMD and; that, the 1st defendant, via its Board, as agent of the federal government, lawfully placed the age limit of 57 years, considering the provisions of section 5 of the 1999 Constitution, which gives the executive powers of the nation to the President, which He could exercise through its agents, which the defendants are, the claimant on the other hand, was of the view that, that interpretation is wrong and; that, there is no discretion without limitation, and that, all discretion must be exercised within the compass of the law granting it.

Now, it is agreed between the parties that the retirement ages for professors in the 1st defendant is 70 years, while 65 years is for consultants. These depositions in the affidavit of the claimant in support of the originating summons stand unchallenged – see paragraph 11 of the 1st defendant’s counter-affidavit and paragraph 4(5) of the 2nd defendant’s unnumbered counter-affidavit. None challenged the truthfulness of 65 and 70 years retirement ages for consultants and professors in the 1st defendant. These pieces of evidence are deemed admitted – see Ugo & Ors v. Maha & Ors (2015) LPELR-25930 (CA) 9, D-E. 

Let me say, in addition that, the facts of 65 and 70 years retirement ages for lecturers and professors in Nigerian universities are matters of public notorieties or statutory hence, the Court is bound to take judicial notice – see Ofomaja v. Commissioner for Education & Ors (1994) LPELR-[not supplied] (CA) 28, A-C, where the Court of Appeal took judicial notice of the retirement age of civil servants in Nigeria and; also, the Universities (Miscellaneous Provisions) Amendment Act 2012 [UMPAA] at www.fuotuoke.edu.ng [accessed 24/10/2020 at 20:57pm], section 4 of which, amended section 8 of the Principal Act, by inserting new subsection 3(a)&(b), which increased the retirement ages of academic staff of professorial cadre in the universities to 70 years and non-academic staff to 65 years and; by implication, academic staff that does not attain professorial rank, to 65 years. Nobody has disputed the rank of the claimant as a professor. Those facts are therefore considered settled. From these, the essential facts of the case are not really in dispute, but the interpretation of section 5 of the UTHRBA. 

To my mind, section 5(1) of the UTHRBA simply means the conditions of service, and not the conditions precedent for appointment of CMD or conditions/qualifications for appointment as CMD. The provisions say the CMD shall be appointed on such terms and conditions as may be specified in the letter of appointment as CMD or as may be determined from time to time by the federal government. It means these terms and conditions would be specified in the letter of appointment and must therefore automatically postdate the appointment and the factors to be considered for the appointment, which factors to be considered for appointment must logically predate the appointment. Even the other aspect, which says, “or as may be determined from time to time by the Federal Government” still refers to terms/conditions of appointment as CMD and not qualifications for the appointment. 

I mean, those terms/conditions to be determined from time to time by the federal government must still postdate the appointment as CMD in effect, but this time around, as pre-stated conditions of service, which the letter of appointment would incorporate or would be deemed to have incorporated by reading these prescribed terms into it or as a standard-form contract. It means they would take effect after the appointment as pre-stated terms/conditions of appointment. In a nutshell, it is the person who possesses the qualifications listed in section 5(2)(a) of the UTHRBA that would be sought for and appointed by the President before the provisions or the terms and conditions envisaged by section 5(1) of the UTHRBA would become applicable to the appointee CMD as his/her terms/conditions of appointment. It needs be made clear to the parties that, in the scenario of the instant case, we are concerned squarely with pre-appointment qualifications: those factors or qualifications that would make a person appointable as CMD and not the conditions that govern appointment of a CMD after appointment. And as pointed out above, it is section 5(2)(a) of the UTHRBA that actually makes pre-appointment qualifications for appointment as CMD; and it requires these five qualifications, namely:

the candidate must be a certified medical professional;

must have been so qualified for a period of not less than 12 years;

must have considerable wealth of administrative experience in the health sector;

must have a postgraduate medical qualification; and,

the postgraduate medical qualification must have been earned not less than five years to the appointment as CMD.   

 

Other than the exigencies of other statutes that might directly have bearing on the qualifications to be appointed CMD of a federal teaching hospital, the above are the qualifications precedent to being appointed a CMD. To my mind, these qualifications are exhaustive and complete in themselves; thus, leaving the teaching hospitals and their boards with only the functions of devising methods of selecting the best of those that meet the minimum qualifications and above, as specified in section 5(2)(a), to be recommended to the President for appointment as CMD. What I mean is that, the Board, could only devise transparent competitive ways or measures of selecting, from amongst all that meet the minimum criteria and above, specified by the laws and who actually applied, the best amongst them, for onward transmission to the President; and not, to exclude any category of the qualified and willing contestants by any exclusive clause, from participating in the selection process. 

Other than meeting the exigencies of any other law that might exclude any of those that meet the minimum requirements in section 5(2)(a) of the UTHRBA, like say, if the retirement age limit in the institution is 70 and the term of appointment as CMD is 4 years, it might be lawful, on account of the exigencies of the UMPAA limiting retirement age of professor to 70, to exclude any person that is above or would be above 66 years old the year of the publication of the advert because, logic shows that, such a person cannot complete his term as CMD before the expiration of his employment. This must be so, because, though, the President is at liberty to appoint any qualified person, but once the person to be appointed comes from staff of a specific public institution via its Board, the appointment is collateral to or corollary or offshoot of the appointee’s employment as public servant and; cannot therefore, lawfully extend his retirement age. By making age 66 the benchmark, it is thus clear that, rather than infringe the law, the defendants would actually be seen to effectuate section 4 of the UMPAA, which pegged the retirement age of a professor in a federal university at 70. But by pegging it at 57, the defendants plainly infringed the provisions of section 4 of the UMPAA thus, committing illegality. 

But can I grant the reliefs claimed? The answer would depend on the exact age of the claimant herein. The question is, what was the real age of the claimant at the time of the advert in issue? This takes the Court to paragraph 4 of the affidavit attached to the amended originating summons. It says and; I quote:

“That I am above 57 years of age and will be excluded despite being otherwise qualified for the vacant position if the defendants are not stopped or the age limit removed by order of the Honourable Court.” 

 

I have read through the two further-affidavits filed by the claimant against the counter-affidavits of the 1st and 2nd defendants and found nothing added to paragraph 4 of the supporting affidavit quoted above. No document is attached to show the exact age of the claimant and the defendant said nothing about his exact age too. It means the exact age of the claimant is left for speculative enterprise. Courts are precluded from speculation – see Martins v. The State (2019) LPELR-48889 (SC) 33, A-B. The only thing that is certain about the claimant’s age is that, he is above 57 and not up to 70 and; this means, he is anything from above 57 to 69. Now, the UMPAA, by virtue of its section 4 provides retirement age of 70 years for a professor and, the claimant is a professor. As I have hinted earlier about other statutes with exigencies on the appointment of CMDs for federal teaching hospitals, the UMPAA is a statute that provides for additional exigencies that must be met in appointing a person to the office of CMD of the 1st defendant. The tenor of section 4 of the UMPAA is that, anybody cannot be appointed from the public service, which appointment would have the effect of elongating his retirement age beyond the statutory age. 

That is, the claimant cannot be appointed with the effect that, his retirement-age elongates beyond 70, by virtue of that appointment. That would be plainly illegal. If the defendants and the President cannot appoint anybody above 70 from the public service of the federal teaching hospitals, then, it follows that he cannot appoint a person for the purpose of elongating his retirement age by reason of that appointment. It simply means, the fact of whether at the point of appointment, the appointee public servant from a federal teaching hospital would have his employment extended beyond age 70 must axiomatically be taken into consideration. 

Now that the claimant refused to state his exact age, how does the Court determine whether or not he was lawfully excluded; or in other way, how does the Court determine that his age at the point of the advert would not have the effect of elongating his retirement age, if appointed? It is basically not possible to answer these questions without knowing his exact age. Thus, the claimant is inviting the Court to unwittingly grant reliefs that might turn out to be illegal if the granting of the reliefs would mean that his retirement age would thereby be elongated.  The law is that, he who comes to equity must come with clear conscience – Jack v. AG & CJ Rivers & Ors (2013) LPELR-22867 (CA) 32, A. I cannot say the claimant herein came with clear conscience by hiding vital piece of information from the Court. 

I take it that the pegging of age of retirement at 70 is an inherent requirement of the job in issue that applies to every person without exception. Now that the Court does not know the true age of the claimant, it is not in a position to determine whether or not he was actually unlawfully excluded. And it must be borne in mind that, this suit is essentially a declaratory one, which must be won or lost on the strength of the claimant’s case and not on the weakness of the defence – see AC & Ors v. INEC & Ors (2019) LPELR-49364 (CA) 30-32, E-D. It simply means the claimant has refused to furnish this Court with enough material to determine his case contrary to Order 3, Rule 17(1)(b) of the NICN Rules. Failure of the claimant to depose to his exact age and to exhibit his birth certificate or statutory declaration of age is fatal to his case. 

Courts of law, being strangers to disputes between parties, only know anything through the evidence presented by the parties and; where a party fails to present evidence of the requisite quantity and quality, his case falls flat, more particularly so, in a matter seeking declaratory reliefs – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 41-43, E-B; Chukwuma v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B; and SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A. It is clear that this suit offends all the preconditions for the grant of declaratory reliefs. As such, I cannot grant him any of the reliefs claimed. The case is liable to be dismissed and is accordingly dismissed. I make no order as to cost.

The above respectfully is the judgment of the Court in this suit and; the judgment is entered accordingly.

 

  …………………………..

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA