IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE:  23^RD FEBRUARY, 2026                                    SUIT NO: NICN/MAID/02/2023

 

BETWEEN:

 

PROF. ADETOYEJE Y. OYEYEMI  ………..  CLAIMANT/RESPONDENT

 

AND

 

UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL ….. DEFENDANT

 

REPRESENTATION:

 

TINUS MANN WITH ABBA SHUIABU AND MUSTAPHA SALEH FOR THE CLAIMANT

AUWAL USMAN MUKTAR FOR THE DEFENDANT

 

JUDGMENT

On 9^th November, 2023, the Claimant filed a complaint accompanied by Statement of Facts, Statement on Oath, List of Witnesses and List of Documents praying for the following reliefs against the Defendant:

 

i)                   A DECLARATION that the suspension of the claimant from his position as HONORARY PHYSIOTHERAPIST vide the Defendant’s letter to the Claimant dated 22^nd October, 2021, is null and void, for violating the Claimant’s right to a fair hearing, as guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

 

ii)                 DECLARATION that the disengagement of the Claimant from his appointment with the Defendant vide the Defendant’s letter of 18^th January, 2022, and addressed to the Claimant is null and void, the said disengagement having been made in violation of the Claimant’s right to a fair hearing, as provided for, under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

iii)              AN ORDER restoring the Claimant to his appointment and, to all of his entitlements and benefits, which the Claimant enjoyed, in virtue of his said appointment, till the same runs its course, or, is otherwise lawfully terminated, according to the terms thereof.

 

IN THE ALTERNATIVE:

 

i)                   N58,804,000.00 (Fifty-Eight Million, Eight Hundred and Four Thousand Naira) general damages for unlawful termination of appointment, reckoned by what the Claimant would have earned, had the Defendant let the appointment run its course, till December, 2029.

 

ii)                 N50,000,000.00 (Fifty Million Naira) aggravated damages for reputational damage, upon the grounds and circumstances of the unlawful termination of the said appointment.

 

iii)              All sums, monies, allowances owed to the Claimant by the Defendant at the time of the unlawful disengagement, made up as follows:

 

a)     The sum of N14,256,000.00 (Fourteen Million, Two Hundred and Fifty-Six Thousand Naira) Specialist Allowance, for 84 months, from November, 2013 to January, 2022, reckoned at N162,000.00 (One Hundred and Sixty-Two Thousand Naira) per month.

 

b)     The same said Specialist Allowance, for a further 95 months, at the same rate, from February, 2022 till December, 2029, when the Claimant’s appointment would have ended, upon his retirement, from the University of Maiduguri. The total for the said further 95 months is N15,390,000.00 (Fifteen Million, Three Hundred and Ninety Thousand Naira).

CASE OF THE CLAIMANT

The Claimant is a Professor of Physiotherapy at the University of Maiduguri and an accomplished professional of international repute, having attained numerous academic, professional, and leadership distinctions both in Nigeria and abroad. The Defendant, a statutory institution established under the laws of the Federal Republic of Nigeria, by a letter dated 1^st November 2013, appointed the Claimant as an Honorary Physiotherapist on terms clearly set out in the said letter. The appointment was expressly stated to subsist for the duration of the Claimant’s tenure with the University of Maiduguri, which by law runs until December 2029 when he shall attain the statutory retirement age of seventy years for professors in Nigerian universities.

The Claimant, whose credentials include licensure in the United States of America, fellowship and presidency of the Postgraduate Physiotherapy College of Nigeria, and professorial promotion in geriatrics at the University of Maiduguri, diligently discharged his duties pursuant to this appointment. Despite his distinguished record, he was served with a letter dated 18^th January 2022 suspending his honorary appointment on the ground of alleged frequent absence from duty without authorization. The suspension was communicated without prior notice of the allegations to him, without disclosure of the memo relied upon by the Defendant’s Top Management Committee, and without affording him an opportunity to defend himself before the said committee.

Subsequently, still under suspension, the Claimant received another letter, also dated 18^th January 2022, disengaging him from his honorary appointment. The letter conveyed that the Defendant’s Board of Management, at its 51^st meeting, had reviewed his performance in providing clinical services and resolved that his services were no longer required. The Claimant was not informed of the meeting, was never invited, and had no opportunity to challenge or rebut whatever adverse materials were placed before the Board. He contends that these steps violated the fundamental requirement of fair hearing, given that his conduct was the subject of deliberations that led to his suspension and disengagement, and that such actions taken without hearing him were arbitrary, unlawful, and unconstitutional.

The Claimant argues further that his appointment, being one conferred by a statutory body and regulated by law, enjoys statutory flavor and could not be terminated except in strict compliance with laid-down procedures in relevant statutes and regulations. The failure of the Defendant to follow due process, in his view, renders both the suspension and the disengagement null and void. He insists that his rights under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have been breached by the Defendant’s conduct.

The Claimant avers that the unlawful suspension and disengagement caused him grave reputational and professional harm, including jeopardizing his pursuit of international certifications, particularly with the American Board of Physical Therapy Specialists, which requires active engagement in recognized clinical service. He has also suffered financially, as the Defendant failed to pay him the Specialist Allowance to which he was entitled throughout the subsistence of his appointment from November 2013 until his disengagement, an amount totaling N29,646,000.00. Additionally, had his appointment run its natural course until 2029, he would have earned the sum of N58,804,000.00 as salaries, which he has now been unlawfully deprived of.

On the basis of these facts, the Claimant asserts that his suspension and disengagement were unlawful, unconstitutional and a clear abuse of power by the Defendant, and he accordingly seeks reliefs to redress the injury occasioned to him both professionally and financially.

CASE OF THE DEFENDANT

The Defendant, while expressly denying all allegations of fact contained in the Claimant’s statement of facts save for those admitted, maintains that the foundation of the Claimant’s case is without merit. The Defendant admits that the Claimant is a Professor at the University of Maiduguri, that a letter of honorary appointment was issued to him, and that a disengagement letter was subsequently served, but insists that the Claimant’s engagement with the Defendant was illegal, null, void, and unenforceable in law.

The Defendant contends that the Claimant is, and at all material times has been, a full-time, permanent, and pensionable employee of the University of Maiduguri, a public institution separate from the Defendant. While under this full-time employment, the Claimant unlawfully undertook and performed honorary services for the Defendant and received remuneration therefrom. It is the Defendant’s case that the Nigerian Constitution and the Code of Conduct for Public Officers expressly forbid public servants from engaging in any other business, occupation, or employment outside their principal office, except farming. The law also prohibits a public officer from holding two employments simultaneously, particularly where both are remunerated, and bars any public officer from receiving emoluments from more than one public institution at the same time.

The Defendant argues that by accepting the honorary appointment and receiving salaries and benefits from the Defendant while still on the University of Maiduguri payroll, the Claimant acted in breach of constitutional and statutory provisions. Such an engagement, the Defendant submits, was inherently illegal, tainted by conflict with the Code of Conduct for Public Officers, and therefore incapable of conferring any rights or entitlements enforceable in law. The Defendant further maintains that since the Claimant’s engagement with the University of Maiduguri was still subsisting, any concurrent service with the Defendant was unauthorized and amounted to dual employment, which the law strictly prohibits.

On these grounds, the Defendant denies that the Claimant is entitled to any of the reliefs sought in his statement of facts. It insists that granting such reliefs would not only validate an illegal contract but also offend the interest of justice, as it would amount to rewarding a public officer for acts carried out in breach of the law. The Defendant therefore urges the court to dismiss the Claimant’s claims in their entirety.

By leave of court on the 28^th February, 2024, the Defendant’s Conditional Appearance, Statement of Defence and Notice of Preliminary Objection by leave of court was filed on the 23^rd November, 2023 out of time. In response, the Claimant filed his Reply on Points of Law to the Notice of Preliminary Objection on 27^th February, 2024. The parties adopted their arguments for and against the preliminary objections on the 16^th April, 2024 after which the court decided to take the ruling and the judgment together. The case itself commenced in earnest on the 18^th June, 2025 with the Claimant who testified and tendered 17 Exhibits (CW1-CW17) as CW. He was cross-examined the same day and the efforts of the Defendant to tender the correspondences between the parties as Exhibit through the Claimant objected to resulting to its admission under protest as Exhibit CW18. On the 19^th June, 2025, Idris Umar (Director of Administration) testified for the Defendant as DW and was cross examined the same day. The case was adjourned to 29^th September, 2025 for the adoption of final written addresses.  

  

NOTICE OF PRELIMINARY OBJECTION BY THE DEFENDANT

 

The Notice of Preliminary Objection filed on 23^rd November, 2023 is pursuant to Order 15, Rule 1 of the National Industrial Court Civil Procedure Rules, 2017 and the inherent jurisdiction of this court praying that the entire suit is incompetent in law, which disrobed this Court the requisite powers and jurisdiction to entertain, hear and determine the suit. The Grounds upon which the objection is being sought are:

 

1.            That the main plank of the Claimant/Respondent’s suit, thus, engagement as Honorary for services to the Defendant/Applicant.

 

2.            That the Claimant/Respondent, before the said Honorary engagement with the Defendant/Applicant was a public servant/officer, full time, permanent and pensionable employee of the University of Maiduguri, a different institution with the Defendant/Applicant.

 

3.            That while the said full time, permanent and pensionable employment with the University of Maiduguri was still subsisting the Claimant/Respondent’s illegally took up and engaged in honorary services with remuneration with the Defendant/Applicant.

 

4.            That is was illegal for the Claimant/Respondent as a full time public servant/officer to engage in another business of whatever capacity for personal payment, benefit or profit except farm related business.

 

5.            That it is contrary to the 5^th schedule of the Constitution of the Federal Republic of Nigeria 1999 as amended for a full time public servant to take double emolument for any public office.

 

6.            That it is contrary to the code of conduct for public officers/civil servants/or public servants except the earlier employment was on part time, the officer shall not to receive or be paid the emoluments of any public office of any other public office.

 

7.            That the Claimant/Respondent is still under full time employment and emolument of the University of Maiduguri salary structure.

 

8.            That the Claimant/Respondent as a full time public officer engaged and received salary emolument from the University of Maiduguri Teaching Hospital (the Applicant’s/Defendant) for honorary services he rendered, while also receiving payments of salary from the University of Maiduguri, a different public institution.

 

9.            That the engagement for service as Honorary by the Claimant/Respondent with the University of Maiduguri Teaching Hospital was a separate and private business thus in breach of code of conduct for public officers, Constitution 1999 as amended therefore illegal, null and void hence unenforceable.

 

10.        That the breach of code of conduct for public officers is a criminal offence triable by the Code of Conduct Tribunal under the Code of Conduct and Tribunal Act.

 

11.        That illegal Honorary services with payments such as the one engaged by the Claimant/Respondent was illegal and therefore not enforceable in law.

SUBMISSION OF THE DEFENDANT/APPLICANT IN SUPPORT OF THE NOTICE OF PRELIMINARY OBJECTION

 

The Defendant/Applicant submitted two (2) issues for the determination, to wit:

 

1.      Whether by the combined provisions of Section 19, part 1 of the FIFTH SCHEDULE of the 1999 constitution as amended, Section 26 of the Code of Conduct and Tribunal Act, and the fulcrum of this suit, the Claimant/Respondent is a full time public officer thereby falls within the restriction of any contractual business of appointment for beneficial monetary remuneration.

 

Issue 1:            Whether by the combined provisions of Section 19, part 1 of the FIFTH SCHEDULE of the 1999 constitution as amended, Section 26 of the Code of Conduct and Tribunal Act, and the fulcrum of this suit, the Claimant/Respondent is a full time public officer thereby falls within the restriction of any contractual business of appointment for beneficial monetary remuneration.

It is the submission of the Defendant/Applicant that by the combined provisions of Section 19, Part I and Section 15 of Part II of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended, as well as Section 26 of the Code of Conduct Bureau and Tribunal Act, the Claimant/Respondent is clearly a fulltime public officer and therefore falls within the constitutional restriction which prohibits public officers from engaging in any form of contractual business or appointment for monetary benefit as remuneration. It is trite that the Code of Conduct for public officers under the Constitution, alongside the Code of Conduct Bureau and Tribunal Act, operates as both a regulatory and penal framework, the breach of which attracts penal sanctions. The Code is not merely advisory but carries with it criminal implications, underscoring the gravity of its provisions.

Section 19 of Part I of the Fifth Schedule provides the definitional scope of the term “public officer,” identifying such a person as one holding any of the offices specified in Part II of the Schedule while excluding only ad hoc chairmanship or membership of tribunals, commissions, or committees. Section 15 of Part II then expressly includes within the category of public officers all staff of universities, colleges, and institutions owned and financed by the Federal, State or Local Government. Similarly, Section 26 of the Code of Conduct Bureau and Tribunal Act mirrors this constitutional provision by defining a public officer as a person holding any of the offices specified in its Second Schedule.

The law is settled that where the words of a statute are clear and unambiguous, they must be given their ordinary grammatical meaning without resort to external aids of interpretation, as any attempt to read into or subtract from them would amount to an impermissible back-door amendment. This position was emphatically affirmed by the Supreme Court in Skye Bank v. Iwu (2017) LPELR-43592 (p.118, paras. B–C) per Ogunbiyi, J.S.C., where his Lordship held that the interpretation of statutes should be approached with fidelity to the plain meaning of the words, as anything to the contrary amounts to a judicial usurpation of legislative powers.

It is therefore the contention of the Defendant/Applicant that the provisions of Section 19 Part I and Section 15 of Part II of the Fifth Schedule to the 1999 Constitution as amended, together with Section 26 of the Code of Conduct Bureau and Tribunal Act, are not only clear but also comprehensive and leave no room for ambiguity. Applying their ordinary meaning, the Claimant, being a staff of an institution owned and financed by government, is by operation of law a fulltime public officer. Consequently, he falls squarely within the constitutional prohibition against public officers engaging in any contractual business or appointment for monetary benefit outside his official remuneration.

Issue 2:            Whether based on the combine provisions of Section 2 (a) (b) of part 1 FIFTH SCHEDULE of the 1999 constitution as amended, Section 6 of the Code of Conduct Bureau and Tribunal Act, the honorary engagement/appointment of the of the Claimant for service(s) to the Defendant/Applicant for monetary remuneration as salary for the Claimant was illegal and unenforceable thereby bereaved the court of jurisdiction to entertain the suit.

The arguments advanced on this issue rest firmly on the combined interpretation of Section 2(a) and (b) of Part I of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 6 of the Code of Conduct Bureau and Tribunal Act. These provisions expressly prohibit a public officer from receiving the emoluments of more than one public office simultaneously and further forbid such an officer, where employed on a full-time basis, from engaging in the management or running of any private business, profession, or trade, save for farming. The clear intendment of these provisions is to guard against conflicts of interest, abuse of office, and the exploitation of public resources for private gain.

The claimant’s own pleadings reveal that he remained a full-time employee and senior staff of the University of Maiduguri at the material time. Yet, while his employment there subsisted, he accepted an honorary engagement with the defendant for remuneration. This conduct, in the view of the defendant, falls squarely within the proscription of the law. The Court of Appeal’s pronouncement in Adamu v. FRN (2018) LPELR-46029 underscores this position, where Jauro, JCA clarified that the prohibition under Section 6 (b) of the Code of Conduct Bureau and Tribunal Act is not limited to permanent appointments but extends to any full-time employment. The Court held that the scope of the law covers all situations where a public officer engages in additional appointments or business contrary to the statutory prohibition, thereby situating the claimant within the ambit of misconduct under the Act.

It is trite law, as emphasized in Pan Bisbilder (Nig) Ltd v. FBN Ltd (2000) LPELR-2900, that contracts or engagements prohibited by statute or common law, coupled with sanction in the event of contravention, are illegal. Achike, JSC, in that case, endorsed the principle that the law regards as void any agreement whose subject matter or consideration is prohibited. This principle applies with full force here. The honorary appointment of the claimant, being a transaction expressly outlawed by the Constitution and the Code of Conduct Bureau and Tribunal Act, was illegal ab initio. As such, the claimant cannot validly claim any benefit under an engagement founded on illegality. This aligns with the decision in Holman v. Johnson (1775) 7 Cowp 341 and its adoption in Nigerian jurisprudence, such as Onyiuke v. Okeke (1976) 3 SC 1, that no court will lend its aid to a man who founds his cause of action on an illegal act.

Furthermore, the jurisprudence is settled that once illegality is disclosed, the court has a duty to refuse enforcement regardless of the equities. In Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co Ltd & Ors (2014) LPELR-22255, Fabiyi, JSC stressed that courts cannot close their eyes to illegality but must decline enforcement of tainted contracts. Similarly, in Ekwunife v. Wayne (W/A) Ltd (1989) LPELR-1104, the Supreme Court reiterated that no court of law has jurisdiction to enforce an illegal contract, as doing so would amount to a breach of the judicial oath.

While it is conceded that the enforcement of sanctions for breach of the Code of Conduct falls within the exclusive jurisdiction of the Code of Conduct Tribunal as confirmed in Ahmad v. Ahmad (2013) 15 NWLR (Pt. 1377) 274, per the apex court, the role of the regular courts is nonetheless clear: they cannot validate or enforce a contract rendered void by statutory prohibition. Thus, although punishment for violation may lie with the Tribunal, the illegality of the claimant’s honorary appointment is sufficient to divest this court of jurisdiction to grant any relief arising from it.

In sum, the claimant’s appointment with the defendant, undertaken while still serving as a full-time officer of the University of Maiduguri, was in direct violation of the Constitution and the Code of Conduct Bureau and Tribunal Act. By operation of law and the weight of authorities such as Adamu v. FRN (Supra), Pan Bisbilder v. FBN (Supra), Ekwunife v. Wayne (W/A) Ltd, and Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co Ltd (Supra), the appointment is illegal, void, and unenforceable. It follows that the claimant cannot derive any right or remedy from the transaction, and this court is bereft of jurisdiction to enforce such illegality. The issue therefore, ought to be resolved against the claimant.

SUBMISSION OF THE CLAIMANT/RESPONDENT IN OPPOSITION TO THE NOTICE OF PRELIMINARY OBJECTION

 

In opposition to the Notice of Preliminary Objection, the Claimant/Respondent filed a Reply on Points of Law with a lone issue for determination:  Whether by the combined provisions of Section 2 (a) (b) of part 1, FIFTH SCHEDULE of the 1999 Constitution as amended, Section 6 of the Code of Conduct Bureau and Tribunal Act, the University Teaching Hospital (Reconstitution of Boards, etc,) Act, (1985) the Honorary Appointment of the claimant is illegal and unenforceable?

It is submitted that the Honorary Appointment of the claimant is not illegal or unenforceable but rather one expressly recognized and sanctioned by law. Counsel submits that by the combined provisions of Section 2(a) and (b) of Part 1 of the Fifth Schedule to the 1999 Constitution as amended, Section 6 of the Code of Conduct Bureau and Tribunal Act, and the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, 1985, the claimant’s appointment does not amount to an infraction of the Constitution or any statute. On the contrary, the enabling law makes clear provisions for such honorary appointments, thereby placing them within the bounds of legality and enforceability.

It was argued that Sections 5 (5) and (6) and 7 (2) and (4) of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, (1985) specifically authorize the defendant to make honorary appointments for the purpose of fostering a symbiotic relationship between the University of Maiduguri and the Teaching Hospital. This statutory arrangement, counsel submits, was deliberately designed to enable medical students of the University of Maiduguri to undergo clinical training within the Teaching Hospital. In this sense, the claimant’s honorary appointment is not distinct employment in any private capacity but rather an extension of his teaching responsibilities at his primary institution. Reference is made to Sections 2 (e), (g), and (j) of the Act, which show that the law itself envisages this symbiotic relationship by including representatives of the University Senate and Dean of Medicine as members of the Hospital Board. These representatives retain their primary employment benefits while receiving allowances for their board responsibilities. To therefore suggest that such appointments are illegal under the Code of Conduct provisions on private business would be, in the words of counsel, “preposterous.”

The submissions further stressed the centrality of jurisdiction in the adjudicatory process. Jurisdiction, it was argued, is determined by the subject matter placed before the court and the plaintiff’s claim, as settled in Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172 and reaffirmed in Emejuru v. Abraham (2019) 4 NWLR (Pt. 1663) 541. The apex court has likened jurisdiction to the “blood that gives life to the survival of an action” such that without it, any proceedings would be null. Counsel cited Ikpa v. Upper Court, Otukpo (2020) LPELR-50233 (CA), where it was emphasized that for a court to assume jurisdiction, the proper parties must be before the court, the subject matter must fall within jurisdiction, the court must be properly constituted, and the case must be commenced by due process. See also Madukolu v. Nkemdilim (1962) 2 SCNLR 341; CBN v. S.A.P Nig. Ltd (2005) 3 NWLR (Pt. 911) 152 and FBN Plc v. Obande & Sons Enterprises (1998) 2 NWLR (Pt. 538) 410.

In applying these principles, counsel submitted that jurisdiction is determined strictly by the plaintiff’s claim. Authorities such as Alalade v. President of Ota Grade 1 Customary Court (2021) LPELR-55656 (CA), Adetayo v. Ademola (2010) LPELR-155 (SC) and Tukur v. Gongola State (1989) LPELR-3272 (SC) were relied upon to stress that it is the claim of the plaintiff that discloses jurisdiction and not any extraneous consideration. Since the claimant’s case is predicated on the legality of his honorary appointment, and since the relevant statutes affirm the legality of such appointments, there exists no jurisdictional impediment to the court hearing the matter.

It was contended further that the defendant’s reliance on Section 2 (a) and (b) of Part 1 of the Fifth Schedule to the Constitution and Section 6 of the Code of Conduct Bureau and Tribunal Act without reference to the University Teaching Hospitals Act (1985) is flawed. The argument that the claimant’s appointment constitutes private business collapses when the provisions of the enabling Act are considered. Counsel maintained that the defendant’s preliminary objection is a mere dilatory tactic intended to frustrate the claimant’s case, a practice deprecated by the courts in cases such as E.B. Plc Awo Omamma v. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.

On the factual plane, it was argued that the claimant’s appointment was clearly honorary in nature. The appointment letter states that it is dependent on the claimant’s subsisting employment with the University of Maiduguri, thereby evidencing its ancillary character. The allowances paid are honorarium, not salary, and thus cannot amount to prohibited double employment. Under Section 131 (1) and (2) of the Evidence Act, the burden of proof lies on the party asserting illegality. As the defendant has failed to substantiate its allegation, the objection must fail. The principle that “he who asserts must prove” was underscored with reliance on Intercontinental Bank Plc v. Hilman & Bros Water Engineering Services Nig. Ltd (2013) LPELR-20670 (CA), Nigerguards Ltd v. Eduwen Usirin (2010) 12 NWLR (Pt. 1208) 207, and I.M.T. Ltd v. Gulf Bank (Nig) Plc (2008) ALL FWLR (Pt. 402) 1092.

Finally, counsel distinguished the authority of Adamu v. FRN (2018) LPELR-46029 relied upon by the defendant, submitting that it is not on all fours with the present case. It was reiterated, with reliance on Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265, that cases are not cited at large but must be applied based on factual similarity. The peculiar facts of this case, being a statutorily authorized honorary appointment serving an educational purpose, place it outside the mischief envisaged by the constitutional and statutory prohibitions on private business or dual full-time employment.

In conclusion, counsel submitted that the University Teaching Hospitals Act expressly empowers the defendant to appoint the claimant in the honorary capacity in which he has served, and such appointment cannot be deemed illegal or unenforceable. The payment of allowances incidental to that appointment is lawful, and in the absence of statutory prohibition, the claimant’s appointment remains valid and protected under the law. Thus, the defendant’s objection must be dismissed, and the claimant’s appointment upheld as legal and enforceable.

SUBMISSION OF THE DEFENDANT ON THE SUBSTANTIVE CASE

The Defendant’s submissions in support of the issues formulated for determination are anchored both on preliminary procedural objections and on the substantive failure of the Claimant to establish his case on the merits. At the threshold, the Defendant recalls that a Notice of Preliminary Objection was duly filed and argued before this Honourable Court, with ruling deferred to the final judgment. It is therefore submitted that the jurisdictional and competence issues raised therein permeate the entire proceedings and must be resolved before any consideration of the substantive claims. Jurisdiction, being fundamental, is the lifeblood of adjudication, and where it is absent, the Court lacks the vires to proceed further in the matter.

On the substantive plane, the Defendant situates the dispute within the peculiar nature of the Claimant’s appointment, which was expressly described as “honorary.” Reliance is placed on the definition of “honorary” as contained in Black’s Law Dictionary, 11th Edition, edited by Bryan A. Garner, which defines the term as a title or status conferred in recognition of merit or service but without attendant rights, powers, or duties, and essentially nominal in character. The Defendant contends that this definition is decisive in understanding the nature of the relationship between the parties and underscores the absence of enforceable employment rights capable of grounding the Claimant’s claims.

Flowing from what the Defendant characterizes as a dearth of credible evidence, the Defendant submits that the issues arising for determination include whether the Claimant’s conduct and admitted employment with the University of Maiduguri constitute a breach of the Fifth Schedule, Part I of the Constitution of the Federal Republic of Nigeria 1999 (as amended); whether the Exhibits CW1 to CW17 tendered by the Claimant have any probative value in the absence of proper explanation and linkage; whether the Defendant, as sued, is a juristic person; and whether, on the totality of the evidence, the Claimant is entitled to the reliefs sought.

Addressing the evidential question, the Defendant argues forcefully that the Claimant merely dumped documents on the Court without demonstrating their relevance, usefulness, or connection to his case through witness testimony. It is submitted that the law is settled that tendering documents alone does not suffice; the documents must be explained and linked to the pleaded facts through evidence. The Defendant notes that the Claimant was the sole witness in his case and, after adopting his witness statement on oath, simply tendered Exhibits CW1 to CW17 and closed his case without any meaningful exposition of their relevance. This failure, it is contended, is fatal and renders the documents ineffective and devoid of probative value.

The Defendant places strong reliance on recent and settled appellate authorities. In Adedapo & Anor v. INEC & Ors (2023) LPELR-61479 (CA), the Court of Appeal emphasized that documents tendered in evidence must be demonstrated through a witness, failing which they cannot support a party’s case. Similarly, in Solomon & Anor v. Liman & Ors (2023) LPELR-61410 (CA), the Court reiterated that dumping documents on the Court without proper linkage is impermissible. Further support is drawn from Oki & Anor v. Federal Ministry of Works & Housing & Anor (2019) LPELR-49251 (CA), where the Court of Appeal, relying on the Supreme Court decision in Ugochukwu v. C.C.B. (1996) 6 NWLR (Pt. 456) 524, per Fabiyi, JSC, condemned the practice of dumping documents and warned that a court is an adjudicator, not an investigator. The Supreme Court’s pronouncement in Duriminiya v. Bazuaye (1999) 9 NWLR (Pt. 620) 552 was also invoked to reinforce the principle that courts should not accord weight to documents not properly examined in open court.

The Defendant further submits that even the provisions of Order 44 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which empower the Court to ask questions or call for documents to clarify ambiguities, do not relieve a party of the primary burden of demonstrating the relevance of its exhibits. The decision in Chukwukere v. INEC & Ors (2019) LPELR-48829 (CA) is cited to show that even where documents are tendered from the bar, they must still be identified and linked through a witness. On this basis, the Defendant urges the Court to disregard Exhibits CW1 to CW17 entirely and resolve the issue against the Claimant.

On the question of juristic personality, the Defendant submits that legal personality is strictly a creation of statute and must be donated by the Constitution or an enabling law. The Supreme Court decision in Abubakar & Ors v. Yar’Adua & Ors (2008) LPELR-51 (SC), per Tobi, JSC, is cited as authority for the proposition that where an enabling statute provides a particular name as the juristic person, that name must be used, and no other. The Defendant argues that the University of Maiduguri Teaching Hospital, as sued, is not clothed with independent legal personality. It is contended that under the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap. U15, Laws of the Federation of Nigeria 2004, what is statutorily recognized is the Management Board of the Teaching Hospital, not the hospital itself as a separate juristic entity.

In support, the Defendant relies on MTN Nigeria Communications Ltd v. Are & Ors (2014) LPELR-23807 (CA), Zain Nigeria Ltd v. Ilorin (2012) LPELR-9249 (CA), Iyke Medical Merchandise v. Pfizer Inc. (2002) FWLR (Pt. 53) 77, Noble v. Parochial Committee of St. John’s Church (1966) 1 All NLR 8, Governor of Kwara State v. Lawal (2007) 13 NWLR (Pt. 1051) 347, Idanre L.G. v. Governor of Ondo State (2010) 14 NWLR (Pt. 1214) 509, and the locus classicus of Agbonmagbe Bank Ltd v. G.B. Olivant Ltd (1961) All NLR 116. The Supreme Court decision in Maersk Line v. Addide Ltd (2002) 4 SCNJ 433 is also cited. These authorities are said to firmly establish that a non-juristic entity cannot sue or be sued and that failure to bring the proper party before the Court is fatal to the action.

The Defendant further relies on the Supreme Court decision in Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708 (SC), where it was held that a non-juristic person lacks capacity to sue or be sued. It is submitted that the Claimant himself admitted under cross-examination that his disengagement was effected by the Management Board, yet failed to sue that Board. Consequently, the suit as constituted against the University of Maiduguri Teaching Hospital is incompetent and liable to be struck out.

Turning to the merits of the reliefs sought, the Defendant submits that all the Claimant’s claims are declaratory in nature. Declaratory reliefs, it is argued, are not granted as a matter of course but must be proved by credible and convincing evidence. Reliance is placed on Osuji v. Ekeocha (2009) LPELR-2816 (SC), where Adekeye, JSC described declaratory reliefs as equitable and discretionary, requiring the Claimant to establish an existing state of affairs in law in his favour. Further reliance is placed on Wome v. Niger Delta Petroleum Resources Ltd, where the Court of Appeal emphasized that declaratory reliefs must be proved on the strength of the claimant’s evidence and cannot be granted on admission or on the weakness of the defence. This principle is reinforced by the Supreme Court decisions in Adamu v. Nigerian Air Force (2022) LPELR-56587 (SC), Akaninwo v. Nsirim (2008) LPELR-321 (SC), Ifediora v. Okafor (2019) LPELR-49518 (SC) and Mohammed v. Wammako (2017) LPELR-42667 (SC).

The Defendant submits that the Claimant has failed to discharge this heavy burden. The declaratory reliefs seeking to nullify the suspension and disengagement, restore the Claimant, and award enormous monetary sums have not been supported by credible evidence. It is argued that the Claimant’s appointment was a master-servant relationship without statutory flavour, and therefore the complaint of “illegal” termination is misconceived. The Supreme Court decision in Dangote Cement Plc v. Ager & Anor (2024) LPELR-61800 (SC) is relied upon for the proposition that termination of a contract of employment without statutory flavour cannot be illegal, but at most wrongful.

The Defendant further submits that to succeed in a claim for wrongful termination, a claimant must prove the fact of employment, the terms and conditions of employment, and the manner in which the termination breached those terms. Nigerian Romanian Wood Industries Ltd v. Akingbulugbe (2010) LPELR-9140 (CA) and Ujam v. IMT (2007) 2 NWLR (Pt. 1019) 470 are cited in support. The Defendant contends that the Claimant failed to establish these essentials, failed to show how the honorary appointment was to be terminated, and failed to prove any reputational damage alleged.

On the claim for damages, including the sum of ?138,450,000.00, the Defendant submits that the law is settled that in a master-servant relationship, damages are limited to what the employee would have earned during the period of notice. Again, Dangote Cement Plc v. Ager & Anor is relied upon. The Defendant further submits that claims for legal fees, costs, special allowances, and aggravated damages are special damages which must be specifically pleaded and strictly proved. Onyiorah v. Onyiorah (2019) LPELR-49096 (SC), per Rhodes-Vivour, JSC, is cited as authority. It is argued that the Claimant neither pleaded nor proved these sums and led no evidence to justify them.

In conclusion, the Defendant submits that from the totality of the pleadings and evidence, the Claimant has failed to prove his case. The honorary appointment was a privilege, not a right; the Defendant’s actions were lawful; the Claimant failed to tender credible evidence linking his exhibits to his claims; the Defendant as sued lacks juristic personality; and the declaratory and monetary reliefs sought are unfounded. The Court is therefore most respectfully urged to resolve all the issues against the Claimant and dismiss the suit in its entirety with substantial costs.

SUBMISSION OF THE CLAIMANT ON THE SUBSTANTIVE CASE

The Claimant’s case, as disclosed by the pleadings and the evidence admitted before this court raises fundamental questions touching on the observance of fair hearing, the legal personality of the Defendant, the probative value of documentary evidence and the Claimant’s entitlement to the reliefs sought. From the totality of the facts and circumstances of this case, the Claimant humbly submits that two issues properly arise for determination, namely whether he was entitled to a fair hearing before his suspension and subsequent disengagement from his Honorary Appointment by the Defendant, and whether he has proved his entitlement to the reliefs claimed.

In responding to the issues formulated by learned counsel to the Defendant, the Claimant submits, first, that the argument relating to an alleged breach of the Fifth Schedule, Part I of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), predicated on the Claimant’s employment with the University of Maiduguri, is already the subject matter of the Defendant’s Preliminary Objection. That objection has been fully argued by both parties and ruling thereon has been reserved. The Claimant therefore respectfully adopts and relies on his earlier submissions in opposition to that objection and urges the Court to discountenance any attempt to reargue same under the guise of final address.

On the Defendant’s contention that Exhibits CW1 to CW17 are devoid of probative value on the ground that the Claimant allegedly failed to demonstrate their relevance or connection to his case, the Claimant submits that the argument is misconceived and unsupported by law. The record clearly shows that the said exhibits were pleaded, tendered and admitted in evidence without objection, reservation or qualification by the Defendant. Exhibits CW1, CW2 and CW3, which form the bedrock of the Claimant’s cause of action, were expressly pleaded in the Statement of Facts and specifically referred to in the Claimant’s Statement on Oath. While it is conceded that Exhibits CW4 to CW17 were not individually mentioned by exhibit number in the witness statement, the substance of the evidence clearly linked them to the pleadings. Paragraph 16 of the Statement on Oath refers to the Claimant’s monthly remuneration, while paragraph 16 of the Statement of Facts particularizes the salaries earned for specific months. The corresponding pay slips were duly listed in the List of Documents and admitted in evidence. The law is settled that documents admitted in evidence and sufficiently connected to the pleadings and oral testimony are not “dumped” on the court. In this regard, the Supreme Court has held in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 425–426 that documentary evidence must be read and evaluated in the light of the pleadings and surrounding oral evidence, and once such nexus exists, the documents are entitled to probative value. Similarly, in Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 580–581, the Supreme Court reiterated that a document becomes relevant once it supports a fact in issue as pleaded. Applying these principles, the Claimant submits that Exhibits CW1 to CW17 were properly linked to his pleadings and evidence and ought to be accorded full probative value.

With respect to the Defendant’s argument that it lacks juristic personality, the Claimant humbly submits that the contention is unsustainable both in fact and in law. The Defendant is a creation of statute and is clothed with legal personality capable of suing and being sued. Notably, the Defendant expressly admitted in its pleadings that it is a statutory body. Furthermore, all the material exhibits before the Court, including the letter of honorary appointment (Exhibit CW1), the letter of suspension (Exhibit CW2), the letter of disengagement (Exhibit CW3) and the pay advices (Exhibits CW5 to CW12), were issued on the Defendant’s letterhead and in the same name under which it is sued. The law is trite that where a body holds itself out as a legal entity, transacts business and enters into contractual relations under a particular name, it cannot subsequently deny its existence to escape liability. In Fawehinmi v. Nigerian Bar Association (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 595, the Supreme Court held that a body created by statute is a juristic person capable of suing and being sued, unless the statute expressly provides otherwise. Similarly, in Carlen (Nig.) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631 at 656, the Court of Appeal held that an institution created by statute possesses juristic personality and can be sued in its corporate name.

The Claimant further submits that the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act, Cap U15, Laws of the Federation of Nigeria 2004, relied upon by the Defendant, does not confer separate juristic personality on the University Teaching Hospital Management Board. A careful reading of section 1 of the Act shows that the Board of Management is merely an administrative organ established for each teaching hospital listed in the Schedule, including the Defendant. The Act does not, either expressly or by necessary implication, create the Board as a distinct legal entity separate from the hospital itself. On the contrary, the Board’s existence is dependent on and incidental to the existence of the hospital. Section 19 of the Act defines “Board” as the University Teaching Hospital Management Board of each hospital, thereby reinforcing the fact that the Board is part of the hospital’s administrative structure. The title of the Act itself, which speaks of the “reconstitution” of Boards, further confirms that the hospitals predate the Boards. In the circumstances, the Claimant submits that the Defendant is a juristic person properly sued and urges the Court to reject the Defendant’s submission on this issue.

Turning to the Claimant’s first issue for determination, the Claimant submits that he was entitled to a fair hearing before his suspension and subsequent disengagement. The right to fair hearing is entrenched in section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which guarantees that in the determination of civil rights and obligations, a person shall be entitled to a fair hearing. The Claimant submits that his Honorary Appointment, conveyed by Exhibit CW1, created enforceable civil rights and obligations between the parties. The appointment was made pursuant to the statutory powers of the Defendant under the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act, and its terms are governed by Exhibit CW1 and applicable law.

Exhibit CW2 purported to suspend the Claimant from his appointment, while Exhibit CW3 purported to disengage him. Suspension, as defined in Black’s Law Dictionary, 11th Edition, at page 1248, means a temporary interruption or postponement, and not a termination. The Claimant submits that the Top Management Committee meeting of 13^th  October, 2021, which considered allegations of misconduct against him and resulted in his suspension, was a quasi-judicial proceeding. The law is firmly settled that administrative or domestic bodies exercising disciplinary powers and determining allegations of misconduct must observe the principles of natural justice and fair hearing.

In Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 at 311–312, the Supreme Court, per Ademola, CJN, held that disciplinary tribunals are bound to conduct their proceedings in accordance with the principles of natural justice, and that an accused person is entitled to know the evidence against him and be given a fair opportunity to correct or contradict it. This principle was restated in Akintemi v. Prof. C. A. Onwumechili & Ors. (1985) 1 NWLR (Pt. 1) 68 at 85–86, where the Supreme Court held that even where the power exercised is administrative, once it affects the rights of a person, the rules of fair hearing must be observed. Most poignantly, in Yesufu Amuda Garba & Ors. v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at 618–620, the Supreme Court condemned the expulsion of students without affording them a hearing and held that any decision reached in breach of fair hearing is a nullity.

The scope of fair hearing was further elucidated in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 7 SC 178; (1985) 2 NWLR (Pt. 7) 300 at 347–348, where the Supreme Court held that fair hearing entails not only the absence of bias but also the right of a party to be heard and to know the case against him. In the instant case, the Claimant’s unchallenged evidence is that he was never notified of the allegations against him, never served with the memo relied upon by the Defendant, and was never invited to appear before either the Top Management Committee or the Board of Management before the decisions to suspend and disengage him were taken. This, the Claimant submits, is a gross violation of his constitutional right to fair hearing, rendering the entire proceedings null and void.

The Claimant further submits that the Top Management Committee, which purportedly suspended him, is not a body recognised or established by the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act. Any disciplinary action taken by such an extra-statutory body is ultra vires, null and void. Likewise, the purported review of the Claimant’s performance by the Board of Management, which culminated in Exhibit CW3, involved an evaluation of facts and evidence without affording the Claimant a hearing, thereby compounding the breach of fair hearing.

On the second issue for determination, the Claimant submits that having established that his suspension and disengagement were carried out in breach of his constitutionally guaranteed right to fair hearing, he is entitled to the reliefs sought. His claims for monetary compensation were supported by documentary evidence showing his earnings and entitlements. In any event, the monetary claims were pleaded in the alternative to the declaratory and restorative reliefs. The law is settled that where a dismissal or termination is declared null and void for breach of fair hearing, the affected party is entitled to reinstatement, regardless of whether damages are awarded. See Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 at 56 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 612–613.

In conclusion, the Claimant respectfully urges the Court to resolve the issues for determination in his favour, hold that his right to fair hearing was violated, declare the suspension and disengagement null and void, and grant all the reliefs sought in the interest of justice.

DECISION OF THE COURT

The Claimant in this case is seeking declaratory, restorative and, in the alternative, monetary reliefs arising from his suspension and subsequent disengagement as an Honorary Physiotherapist by the Defendant. The Defendant joined issues with the Claimant and, at the threshold, raised a Notice of Preliminary Objection challenging the competence of the suit and the jurisdiction of this Court, principally on the ground that the Claimant’s honorary engagement was illegal and unenforceable, being in breach of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Code of Conduct Bureau and Tribunal Act.

Given the settled position of the law that jurisdiction is fundamental and goes to the root of adjudication, the Court must first resolve the preliminary objection before delving into the merits of the substantive claims. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Tukur v. Gongola State (1989) 4 NWLR (Pt. 117) 517.

At the heart of the Defendant’s objection is the contention that the Claimant, being a full-time public officer in the employment of the University of Maiduguri, was constitutionally prohibited from accepting any other remunerated appointment, including the honorary engagement with the Defendant, and that such engagement was therefore illegal, void and incapable of enforcement by this Court. The Defendant placed heavy reliance on Sections 2 and 6 of Part I of the Fifth Schedule to the Constitution and Sections 6 and 26 of the Code of Conduct Bureau and Tribunal Act, arguing that the alleged illegality divests this Court of jurisdiction.

The Claimant, on the other hand, contends that his appointment was expressly authorized by the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap U15, Laws of the Federation of Nigeria 2004, which envisages and legitimizes honorary appointments designed to foster collaboration between universities and teaching hospitals. He further argues that the Code of Conduct provisions were never intended to outlaw such statutorily sanctioned honorary appointments and that, in any event, questions of breach of the Code of Conduct fall within the exclusive jurisdiction of the Code of Conduct Tribunal.

The Court has carefully examined the constitutional and statutory provisions relied upon by both parties. There is no dispute that the Claimant is a public officer within the meaning of Part II of the Fifth Schedule to the Constitution. However, the crucial question is whether his honorary appointment with the Defendant, made pursuant to statute, amounts to engaging in prohibited “private business” or holding a second public office with double emoluments within the contemplation of the Constitution. Sections 5, 7 and related provisions of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act empower teaching hospitals to make honorary and visiting appointments, particularly to facilitate clinical training and collaboration with universities. Such appointments are not private business ventures but are integral to the statutory mandate of teaching hospitals. The evidence before the Court, particularly Exhibit CW1, shows that the Claimant’s appointment was expressly described as “honorary” and was dependent on his subsisting employment with the University of Maiduguri. It was ancillary and complementary, not competitive or private in nature.

It is also settled law that where a statute specifically authorizes an act, such act cannot be rendered illegal by a general constitutional provision unless the statute itself is unconstitutional. See Attorney-General of the Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1. The Defendant has not challenged the constitutionality of the University Teaching Hospitals Act. Moreover, the issue of whether a public officer has breached the Code of Conduct is, by constitutional design, within the exclusive jurisdiction of the Code of Conduct Tribunal. Regular courts cannot assume that role. See Ahmad v. Ahmad (2013) 15 NWLR (Pt. 1377) 274; Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531.

This Court therefore holds that the alleged breach of the Code of Conduct does not render the Claimant’s appointment automatically void nor does it rob this Court of jurisdiction to adjudicate on the civil consequences arising from the relationship between the parties. The preliminary objection fails and is hereby dismissed.

On the issue of juristic personality, the Defendant argued that the University of Maiduguri Teaching Hospital is not a juristic person and that only its Management Board can sue or be sued. The Court has examined the enabling Act and the totality of the evidence. The Defendant admitted in its pleadings that it is a statutory institution. All the material documents, including the letters of appointment, suspension and disengagement, were issued in the same name under which the Defendant is sued. A body that holds itself out, transacts and exercises statutory powers in a particular name cannot approbate and reprobate by denying its juristic status to evade responsibility. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558; Carlen (Nig.) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631. The objection on juristic personality is accordingly discountenanced.

Turning to the merits of the case, the core complaint of the Claimant is that his suspension and subsequent disengagement were carried out in violation of his right to fair hearing as guaranteed by Section 36 (1) of the Constitution. The evidence before the Court shows that the Claimant was suspended based on allegations of absence from duty without authorization and later disengaged following a review of his performance by the Board of Management. It is not in dispute that he was neither informed of the allegations in advance nor invited to appear before the Top Management Committee or the Board before adverse decisions were taken against him. But can the allegation of lack of fair hearing take off the sting on the Claimant’s suspension? I think not.

To start with, it is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (Pt. 1189) 1 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NLLR (Pt. 103) 40 NIC. It is for the claimant to show that the defendant acted unreasonably in issuing the suspension. The yardstick for challenging the suspension is whether the suspension is necessary, reasonable, valid and hence lawful. See Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited (2015) 62 NLLR (Pt. 216) 40. In other words, the claimant will succeed only if he shows the suspension to be unnecessary, unreasonable, invalid and hence unlawful. Nothing of this sort happened in this case. Instead, the claimant complained of the absence of fair hearing before his suspension. The authorities are, however, very settled that when it comes to suspension, the question of fair hearing and/or natural justice is immaterial. See the cases of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin (2005) 7 NWLR (Pt. 923) 87, Shell Pet. Dev. Co. v. Lawson Jack (1998) 4 NWLR (Pt. 545) 249 and more particularly Longe v. FBN Plc (supra) where it is held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. Accordingly, a declaration that the suspension of the claimant from his position as Honorary Physiotherapist cannot be granted and is hereby dismissed.

It is now left to be seen whether the disengagement of the Claimant from his appointment with the Defendant can be declared as null and void. To determine this, I will be most guided at all times by the dictates of the Supreme Court in a long line of cases such as Kato v. CBN (1999) 6 NWLR (Pt. 607) 390, Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 and Ziideel v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554. The underlining principles in all these cases and many more, is to the effect that an employee seeking the declaration that the termination of his appointment is a nullity must plead and prove the following material facts:

a)                 The nature of the employment.

b)                 The condition of service.

c)                  The circumstances under which the appointment can be terminated.

 

I intend to analyse the pleadings and evidence in this case in the light of material facts (a-c) above and will only refer to the arguments of the parties where necessary. From the facts of this case, there is no dispute between the parties that the Claimant was employed by the Defendant as an Honorary Physiotherapist on terms clearly set out in the said letter while still on pensionable appointment with the University of Maiduguri. Since the Defendant is a statutory institution established under the laws of the Federal Republic of Nigeria expressly stated to subsist for the duration of the Claimant’s tenure with the University of Maiduguri, the employment relationship in this case was one clothed with quasi-statutory flavour. In any event, whether an employment is with statutory flavour or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of the termination. See Aji v. Chad Basin (2015) 3 S.C.N.J. 407-408, per Walter S. N. Onnoghen, J.S.C (as he then was).

 

This takes me the second item to be proved, the Condition of Service. On the issue of condition of service, it is trite law that a servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 N.W.L.R. (pt. 150) 356 at 370; Katto v. Central Bank of Nigeria (1999) 6 N.W.L.R. (pt. 607) 390 at 405; Okomu Oil Palm co ltd v. Isehienrhien (supra) at 673-674, Idoniboye-Oba v. NNPC (2003) 1 S.C.N.J 108-109 and Ziideeh vs. Rivers State Civil Service Commission (2007) All FWLR (Pt. 354) 243 at 258. In other words, the employee has the onus of placing before the court the terms of the contract of employment before proceeding to prove the manner the said terms were breached by the employer. In the case of Bukar Modu Aji vs. Chad Basin Development Authority and 1 Or (2015) 16 N.W.L.R (Pt. 1486) @ Pages 568 - 569, paras, F-B, the Supreme Court in stressing the importance of condition of service in proof of wrongful termination or dismissal held:

 

“A plaintiff who complains that his employment has been wrongfully terminated is enjoined by law and he has the onus to place before the court the terms of his contract of employment and then go on to prove in what way the terms were breached by the employer. Where he fails on both counts, his case would have no leg to stand on. In principle, it is not for the employer who is a defendant to an action brought by the employee to prove any of these issues. In the instant case, the appellant did not plead or prove the terms of his employment with the respondents and so his case had no legs to stand on.”

 

What governs the relationship between the parties is the Letter of Appointment dated 1^st November, 2013 (Exhibit CW1).

 

Next is the circumstance under which the appointment can be terminated. Generally, the onus is on the Claimant to prove that the determination of his employment is wrongful and unlawful. But where, as in this case, the employer gives a reason or cause for the determination of the appointment, the law imposes on the employer the duty to establish the reason to the satisfaction of the court. See the cases of Shell v. Olarewaju (2008) 12 S.C.N.J. (Pt. 11) 696-697, Nipost v. Musa (2013) LPELR-20780 (C), Olatunbosun v. N.I.S.E.R Council (1988) 1 NCC (1025) 188 3 NWLR (Pt. 80) 25 and more particularly Institute of Health v. Anyip (2011) 5 S.C.N.J. 262, where C. M. Chukwuma-Eneh, J.S.C. put it succinctly thus:

 

“Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has proffered any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more.”

 

This is also the purport and tenor of Articles 4 and Article 9 (2) (a) of the Termination of Employment Convention No. 158 of 1982 which stipulates that an employer can terminate an employee’s employment only on valid reasons and which also shifts the traditional paradigm by placing the burden of proof on the employer respectively. This is further reinforced by the cases of Skye Bank Plc v. Adegun (2024) 15 NWLR (Pt. 1960) SC, Nipost v. Musa (2013) LPELR-20780 (C) and Olatunbosun v. N.IS.E.R Council (1988) 1 NCC (1025) 188 3 NWLR (Pt. 80) 25.

 

The reason for the disengagement of the Claimant can be found in the first paragraph of Exhibit CW3:

 

18^th January, 2022

 

Dear Sir,

 

LETTER OF DISENGAGEMENT OF HONORARY PHYSIOTHERAPIST APPOINTMENT

 

I am directed to write and inform you that the Board of Management of the University of Maiduguri Teaching Hospital at its 51^st meeting held on Friday, 14^th January, 2022 reviewed your performance in providing clinical services to the Hospital and decided that your services are no longer required.

 

You are to ensure proper handing over of all official properties in your possession to your Head of Department before departure.

 

Thank you.

 

Signed

Ahmad A lawan

Director of Administration

For: Chief Medical Director

 

The onus is therefore on the Defendant to show that it is a review of the performance of the Claimant in providing clinical services which prompted the Defendant to decide that the Claimant’s services are no longer required to the satisfaction of the court. This is the reason given in the first paragraph of Exhibit CW3. To justify the disengagement of the Claimant from the Honorary Appointment, the Defendant in addition to the testimony of Idris Umar (Director of Administration), tendered Exhibit CW18 in evidence. Exhibit CW18, which are correspondences exchanged between the Claimant and the Defendant, includes Re: Notification of Absence dated 30^th April, 2021, Letter of Warning dated 20^th August, 2021, Re: Letter of Warning dated 23^rd August, 2021, Letter to the Chief Medical Director about Travel Without Official Permission dated 22^nd January, 2021, Notification of Absence dated 25^th March, 2021, Re: Application for Appointment as Honorary Consultant dated 18^th March, 2013, Notice of Impending Action dated 31^st March, 2022, Re: Notice of Possible Delay in Returning dated 28^th September, 2021, Notice of Possible Delay in Returning dated 31^st August, 2021, Re: Appointment as Honorary Consultant in Physiotherapy dated 24^th March, 2014, Re: Notification of Annual Leave dated 9^th September, 2021, Re: Notification of Possible Delay in Returning dated 23^rd September, 2021, Re: Notification of Absence dated 7^th January, 2021 and Notice to Vacate Office dated 25^th February, 2022.  

 

What emerges from a close study of the litany of these documents are: That there is an apparent disagreement on the procedure for the application of Leave of Absence. While the Claimant considers the filing of leave of absence form through the University and a Notification of his absence to the Defendant is enough, the Defendant expects the Claimant to apply and get its permission before leaving his duty post. That whether the travels of the Claimant were by notifications or lack of permission, there is actual absence from work by the Defendant. This is as evidenced by Claimant’s reply to the letter of Warning dated 23^rd August, 2021, Notification of Absence for accreditation visit to Redeemer University, Ede and a trip to New York dated 25^th March, 2021,  Notice of Possible Delay in Returning of 31^st August, 2021 and 28^th September, 2021. That this documented absence from work by the Claimant goes to the root of his performance in providing clinical services to the Defendant. I have therefore no hesitation in finding and holding that the Defendant is justified in disengaging the services of the Claimant as Honorary Physiotherapist is far.

 

To dislodge this, it is for the Claimant to prove in what manner the Appointment as Honorary Physiotherapist was breached. To prove this, the Claimant testified as CW and tendered 17 Exhibits (CW1-CW17). Exhibit CW18 which are correspondences between the parties was tendered by the Defendant through the Claimant. Out of these 17 Exhibits, only Exhibit CW1 (Appointment Letter) and Exhibit CW3 (Letter of Disengagement) that are relevant in the relation to the disengagement of the Claimant. The other Exhibits are either Claimant’s Pay Slips or Duty Roster.

 

It should be noted that Exhibit CW1 provided in paragraphs 2 (b) and 6 of Exhibit CW1 how the appointment can be determine respectively: (i) The Observance of any regulation promulgated by the Defendant’s Board of Management and or the Federal Public Service Rules. (ii) The employment is only valid for the period of tenure of the Claimant with the University of Maiduguri. It should be equally noted that the Claimant did not bring these two conditions to bear in his bid to declare his disengagement as null and void. Similarly, the Claimant also tendered the Prospectus of the Defendant (Exhibit CW17) without any effort to show how the prospectus was breached in his disengagement. Rather the Claimant’s case hinges on lack of fair hearing. To the Claimant, the Defendant reviewed his performance in providing clinical services and disengaged him from the honorary appointment without informing or inviting him for the meeting or giving him the opportunity to challenge or rebut whatever adverse materials before the decision to disengage him. To the Claimant, this violated the fundamental requirement of fair hearing rendering the actions taken as arbitrary, unlawful, and unconstitutional and therefore constituted a breach by the Defendant of his rights under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

Can this position be justified given the facts and evidence in this case? I think not. The provision of section 36 (1) of the 1999 Constitution relating to fair hearing is truly far-reaching as it is not a technical doctrine but one of substance whose yardstick for its observance is not the question whether any injustice has been occasioned on any party due to want of hearing but rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. See UBN v. Astra (2010) 41 (Pt. 2) N.S.C.Q.R. 1046. While the burden is on the party who alleges the breach of fair hearing; Bill v. Imani (2006) 12 S.C.N.J. 81, the breach itself vitiates the adjudications and the proceedings rendering the same null and void and of no effect irrespective of how correct is the decision; A-G. Rivers State v. Ude (2006) 7 S.C.N.J 628, Akpamgbo-Okadigbo v. Chidi (2015) 3 S.C.N.J. 266, Tukur v. Government of Gongola State (1989) 9 S.C.N.J. 1, (1989) 4 N.W.L.R. (pt. 117) 517 and Victino Fixed Odds v. Ojo (2010) 41 (Pt. 2) N.S.C.Q.R. 1007.

 

However as far-reaching as the doctrine is, courts are enjoined to exercise caution in the application of the fair hearing provision of the constitution as it is a principle for both litigants. See the cases of Orugbo v. Ona (2002) 9 S.C.N.J. 34 and Newswatch v. Atta (2006) 4 S.C.N.J. 299, where Niki Tobi, JSC and of blesses memory held:

“The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”

To determine whether the principle of fair hearing has been breached or denied a party, as in this case, the court should consider the nature and circumstances surrounding the whole case as manifest in the record. See the cases of Major Bello Magaji v. The Nigeria Army (2008) 2-3 SC 32, Pam v. INEC (2008) 5-6 SC (Pt. 1) 83 and FRN v. Akubueze (2010) 42 (Pt. 1) N.S.C.Q.R. 402. The breach of fair hearing in this case was the allegation that the Defendant did not invite the Claimant before reviewing his performance leading to his disengagement. I think the pertinent question is, given the honorary nature of the Claimant’s appointment, it is necessary to comply with any elaborate disciplinary procedures, which even the Claimant did not advance? This enquiry is imperative since fair hearing is not a technical term nor a magic wand which once waved automatically vitiates a trial or proceedings against which it is waved as the grouse has to be inquired into in context and not in vacuo. See Peterside v. Fubara (2012) 12 S.C.N.J. 891, per Mary Peter-Odili, J.S.C. Since given the nature of the decision as purely administrative body and not a regular court of law, the presence of the Claimant was not needed before the decision to disengage him is taken. See the case of Ndukwe v. LPDC (2007) 2 S.C.N.J. 24. I am also fortified in this regard by two (2) Supreme Court cases where such presence were held not be necessary. Refer to Lagos State v. Adold Stamm (2005) 1 S.C.N.J. 222, per S. A. Akintan, J.S.C., Magit v. University (2005) 12 S.C.N.J. 220-221, per I. F. Ogbuagu, J.S.C.

In any case, once an employee was given ample opportunity to defend himself on the allegations in issue, such an employee cannot complain of not being given fair hearing. See Simon Ansambe v. Bank of the North Ltd (2005) 8 NWLR (Pt. 928) 650, Ziideeh v. RSCSC (2007) LPELR-3544(SC); A. R. Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 508 CA at 527, Benedict Hirki Joseph v. First Inland Bank Nig Plc (2009) LPELR-8854 (CA), Gukas v. Jos International Breweries Ltd (1991) 6 NWLR (Pt. 199) 614, Imonikhe v. Unity Bank Plc (2011) LPELR-1503(SC) and Avre v. NIPOST (2014) LPELR-22629 (CA). To the extent that the parties in this case have entered into several correspondences on the vexed issue of leave of absence, I am satisfied that the claimant was given ample opportunity to defend himself. I so find and hold.

 

Having found that the suspension and eventual disengagement of the Claimant are not unlawful, what becomes of the order sought to restore the Claimant to his appointment and entitlements/benefits till when the said appointment runs its course? The order for restoration cannot be granted. Two cases are instructive here. The first one is the case of Spring Bank Plc v. Babatunde (2012) 5 NWLR (Pt. 1292) 83 CA which says a servant who even unlawfully dismissed cannot claim wages for services not rendered. The second is the case of Okeme v. Civil Service Commission, Edo State (2000)14 NWLR (Pt. 688) CA. which is most apposite. In that case it was held that an employer does not guarantee a job to an employee until the employee's retirement age and the time stipulated for retirement only set out the maximum duration possible for the employment under the existing contract. Consequently, the Court will not grant a claim for payment of salary up to the retirement age of the employee. See also the Supreme Court case of Obot v. C.B.N. (1993) LPELR 2192, per Uwais, J.S.C. (as he then was) @ page 36, paras.

 

Having failed in the foregoing substantive or main reliefs, I am enjoined by law to consider the alternative reliefs sought by the Claimant. See the cases of M.V. Caroline Maersk v. Nokoy Ltd. (2002) 6 S.C.N.J. 225, Odutola v. Ladejobi (2006) 5 S.C.N.J. 96, Xtoudos v. Taisei  (2006) 6 S.C.N.J. 314-315 and G.K.F. Investment v. Nigeria (2009) 7 S.C.N.J. 116. I start with the reliefs for general damages for unlawful termination and aggravated damages in the sums of N58,804,000.00 (Fifty-Eight Million, Eight Hundred and Four Thousand Naira) and N50,000,000.00 (Fifty Million Naira) respectively. On the authority of Union Bank of Nigeria Plc v. Soares (2012) 29 NLLR (Pt. 84) 329 at 377 and Tsokwa Oil Marketing Co. (Nig) Ltd v. BON Ltd (2000) 11 NWLR (Pt. 777) 163 at 218, damages of whatever kind are a function of liability and since I have established that the disengagement of the Claimant is not wrongful and unlawful, the Claimant is not entitled to any damages.

 

Relief (iv) for the monies and allowances owed to the Claimant by the Defendant at the time of the unlawful disengagement in the sums of N14,256,000.00 (Fourteen Million, Two Hundred and Fifty-Six Thousand Naira) and N15,390,000.00 (Fifteen Million, Three Hundred and Ninety Thousand Naira) up to 2029 are monetary reliefs. As monetary reliefs, they are to be proved on two (2) fronts: the proof of entitlement to the claims, and the proof of the quantum of the sums claimed. To prove an entitlement to a claim, the Claimant must place before the court the instrument, agreement, collective agreement or any other document that confers the entitlements. See Oyo State v. Alhaji Apapa & ors (2008) 11 NLLR (Pt. 29) 284 and Mr. Mohammed Dungus ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for monetary sums as entitlement(s) is a claim for special damages. See NNPC v. Clifco Nig. Ltd (2011) LPELR-2022(SC), Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors (2009) 13 NWLR (Pt. 1159) 445 SC, Christopher U. Nwanji v. Coastal Services Nig. Ltd (2004) LPELR-2106 (SC) and Marine Management Associates Inc & anor v. National Maritime Authority (2012) LPELR-206 (SC). Nothing of this sort is placed before this court for the grant of these monetary reliefs.

 

The long and short of it is that the Claimant has failed to prove both the main reliefs and the alternative reliefs. The suit is therefore hereby dismissed with no order as to cost.

Judgment entered accordingly.

……………………………………...

HON. JUSTICE M. A. NAMTARI