University Of Nigeria Teaching Hospital Management Board & Anor V. Hope Chinyelu Nnoli (1994)

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ONU, J.S.C.

When we heard this appeal on the 11th day of July, 1994, we took arguments from learned counsel and I dismissed it. I reserved my reasons for the action we took until today. I now give my reasons for dismissing the appeal.

The two questions which in my opinion stand out in bold relief for answers in this appeal are firstly, whether a public body such as a University Teaching Hospital Management Board established by statute can act fairly outside the provisions of the statute creating it in matters relating to the discipline of a servant or employee and secondly, whether the reinstatement of a dismissed servant or employee is the right order to make in the circumstances.

The plaintiff, herein respondent, having been retired with full benefits from her employment as Assistant Chief Pharmacist with the 1st defendant, herein 1st appellant, instituted Suit No. E/194/87 before Ononiba. J. in the High Court of the former Anambra State against both 1st appellant and the 2nd defendant (now 2nd appellant) jointly and severally as per her Statement of Claim for the following reliefs:

1. A declaration of this Honourable Court that the purported termination of plaintiffs employment with the University of Nigeria Teaching Hospital, contained in a letter reference number UNTH/PF.2166/ 163 and dated 19th May, 1987 addressed to the plaintiff by one Mrs. M. Ohaegbulam, the Director of Administration of the University of Nigeria Teaching Hospital is null and void or ineffectual or unlawful by reason of gross irregularity, lack of reasonable cause, denial of natural justice and non-compliance with the enabling statutes establishing the defendants, and breach of Section 33 of the Constitution of the Federal Republic of Nigeria 1979.
2. An order of this Honourable Court setting aside the said letter reference UNTH/PF.2166/163 dated 19th May, 1987 by which defendants purported to retire the plaintiff from her employment as Assistant Chief Pharmacist with the university of Nigeria Teaching Hospital.
3. A declaration that the plaintiff is entitled to remain and continue in employment at University of Nigeria Teaching Hospital, until she attains the retirement age as prescribed by law or until earlier retired on grounds of ill-health or other lawful cause.
4. An order of this Honourable Court setting aside the purported retirement of the plaintiff all her rights and benefits; including her right to continue in employment at University of Nigeria Teaching Hospital until she attains the age of retirement as prescribed by law or until she is otherwise earlier retired on grounds of ill-health or other lawful cause.”

Pleadings having been ordered, duly filed and exchanged, the case went to trial. The High Court granted her the declarations and order sought and the same were confirmed by the Court of Appeal sitting in Enugu (hereinafter in the rest of this judgment referred to as the court below).

Aggrieved by this decision, the appellants with the leave of the court below, has further appealed to this court on five grounds and later with leave, an additional ground.

But first the facts of the case which are largely not in dispute. The respondent was the only qualified chemist in the compounding unit of the 2nd appellant at the time material to this case. An unqualified pupil pharmacist, named Mr. Nwuzor who was then undergoing his internship with 2nd appellant, was posted to the respondent’s unit. Being on internship, Mr. Nwuzor was not to compound medicine on his own without supervision. On 20th February, 1989, Mr. Nwuzor allegedly compounded chloroquine syrup which caused the deaths of children aged between one and four years who took it. Post mortem examination conducted on the bodies of the children confirmed the cause of death. Analysis of the said syrup by the Central Drug Control Unit of the Federal Ministry of Health, revealed that the said chloroquine syrup contained about eight times more chloroquine phosphate than a normal dose. Such over-dosage, it was deciphered, is dangerous and liable to result in deaths of children aged between one and four years.

Sequel to the deaths of the children, there was a public outcry and the 1st appellant conducted an investigation to ascertain the person or persons responsible for the over-dosage.

On the 18th day of May 1987, the 1st appellant interviewed the respondent. Mr Nwuzor and the Chief Pharmacist Mr Nwuzor admitted compounding the chloroquine syrup and stated he was supervised during the compounding by the respondent. This assertion by Mr Nwuzor was put to respondent and following her answer she was asked by the 1st appellant if she had any previous record of negligence. She was alleged to have answered in the positive following which 1st appellant compulsory retired her with full benefits from the service of the appellant. Whereupon, the respondent commenced her action by a writ against the appellants on 3rd August, 1987 as hereinbefore alluded to. From the grounds of appeal filed, the appellants have identified the following five issues (respondent’s four essentially-and substantially overlap and dovetail into them) for our determination., They are:-

1. Does mere non-compliance with the formalities prescribed by s.9(1) of the University Teaching Hospitals (Reconstitution of Boards. etc.) Decree. 1985 for the removal of officers or similar sections in other laws ipso facto mean a denial of fair hearing to the officer affected so as to nullify the removal
2. Was the plaintiff as a matter of law or fact denied fair hearing before she was retired
3. Was it fair hearing for the court below to ignore the complaint of the defendants in their appeal to the said court that as the reliefs claimed by the plaintiff was declaratory it was incumbent on the trial court to consider whether on the facts before it the plaintiff was fully entitled to the exercise of its discretion in her favour
4. Was the construction put on the opening words of s.9(1) of the University Hospitals (Reconstitution of Boards. etc) Decree No. 10 of 1985 in its application to the facts of this case correct
5. Did the justice of this case call for reinstatement of plaintiff to her employment in the hospital

At the hearing of this appeal on 11th July, 1994, learned counsel on either side relied on their briefs and orally expatiated brietly on them. In my consideration of the appeal. I deem it pertinent to treat appellants’ issues 1, 2, 3 and 4 which overlap the respondent’s issues 1.2 and 3 – all distilled from appellants’ grounds 1,2.3,4 and 5 together, and thereafter. appellants’ issue 5 which emanates from additional ground 6, separately.

The learned Senior Advocate, Mr. Anyamene, for the appellants first of all submitted that the court below disabled itself from an unbiased appraisal of arguments of the appellants’ before it. when by the use of the following words, it beclouded the real issues submitted to it for determination, to wit:-

“The main issue which calls for determination can be put thus: Was the plaintiff who held a particular official status under contract of employment with statutory favour justifiably removed from that office without complying with the laid down conditions and the rules of natural justice under any circumstances

….Appellants seem to argue that under the 6 special circumstances that prevailed, both the conditions laid down and the strict observance of natural justice became irrelevant and therefore could be overlooked. In other words, the circumstances which led to the removal of the plaintiff were so obvious that she cannot be heard to complain that she was denied a fair hearing”.

Learned Senior Advocate then contended that it was obvious from the above quotation that the court below proceeded on the wrong premises in saying that the respondent was denied natural justice and that the case of the appellants was such that the circumstances provided an exception to the application of the rules of natural justice. After stating how the learned trial Judge minced no words as to what he understood by fair hearing guaranteed by section 33 of the 1979 Constitution, he drew our attention particularly to the learned trial Judge’s comment on 1st appellant’s failure to comply with the statutory prescriptions i.e. Section 9(1) of Decree 10 of 1985, thereby depriving the respondent of her right to fair hearing as guaranteed by section 33 of the 1979 Constitution. He further maintained that there was a necessity to observe those statutory preconditions set out in Decree 10 of 1985 whether or not the respondent was negligent in the chloroquine affair. Attacking the reasoning of the trial court, learned Senior Advocate submitted that such an attack was predicated on the dictum of this court in the case of Federal Civil Service Commission v. Laoye (1989) 4 SCNJ (Pt.11) 146 at 160; (1989) 2 NWLR (Pt.106) 652 at 679 that where an employee is confronted with an accusation of misconduct and he admits it, he could face discipline thereafter without further formality, vide the dicta of the same court in Garho & Ors. v. University of Maiduguri (1986) 1 NWLR (Pt.18)550;(1986) 1 All NLR (Pt.1) 124 at 184 (Reprint) and Sule v. Nigerian Cotton Board (1985) 6 S.C. 62 at 80; (1985) 2 NWLR (Pt.5) 17. He argued next that it was therefore incumbent on the court below in determining this appeal which involves a rehearing, to consider whether or not the dicta of these cases applied to the case in hand. Rather, he argued, the court below evaded the point completely and fell into the same pitfall as the trial court which thought the dicta irrelevant. Even without the dicta, he maintained, it would be stretching judicial interpretation to the ludicrous to hold that if the respondent when questioned by 1st appellant had admitted blame for the wrong compounding of the chloroquine syrup, for 1st appellant then to ask its secretary to give a query to the respondent and thereafter appoint a committee to investigate the matter and report to it. Learned Senior Advocate went on to draw an analogy from criminal trials where an accused pleads guilty to a charge and it would be unnecessary for it to go through the otherwise mandatory procedure for finding him guilty instead of proceeding straight to judgment and sentence. Similar consideration, he argued, applied to civil cases, adding that if a defendant admits liability to a claim, the court proceeds to enter judgment for the plaintiff without further Inquiry.