Federal Medical Centre, Ido. Ekiti & Ors V. Shuaib Adewole Alabi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI M. ABBA-AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High court, Akure, Ondo state presided over by Hon. Justice Lambo J. Delivered on the 13th day of December, 2007. The suit was subsequently transferred to the Ado-Ekiti judicial Division of the Federal High Court when the same was created.

The Respondent as the Plaintiff at the lower court commenced this suit against the Appellants as Defendants claiming jointly and severally against them as per paragraph 21 of his Amended Statement of claim as follows:-

a) A declaration that the termination of the Plaintiff (sic) appointment under Defendants by the Defendants and contained in a letter of termination reference number FMC/ID/Ek/P.706/181 of 8th November, 2005 is wrongful; illegal, unconstitutional null and void and of no effect whatsoever.

b) A mandatory order on the Defendant to reinstate the Plaintiff with full entitlements from the date of termination of the appointment till judgment on (sic) thereafter.

The facts leading to this appeal are briefly summarised as follows:-

The Plaintiff, henceforth to be simply referred to as the Respondent was a Nursing Superintendent Anaesthetist II attached to the Theatre Unit of the 1st Appellant until 8th November, 2005 when the Appellants terminated his appointment.

The Respondent testified that he was employed by the 1st Appellant under a delegated authority from the Federal Civil Service Commission as a Nursing Anaesthetist. That on the 25th March, 2005, one Dr. Owolabi wanted to perform an operation on a pregnant woman knowing full well that Dr. Owolabi was not a surgeon and did not belong to the surgery Department but Medicine. Plaintiff advised him to call a more superior officer, who could handle such a sensitive case. The Respondent further stated that on 4th April, 2005 he got an invitation to appear before the Disciplinary Committee of the 1st and 2nd Appellants consequent upon which he was dismissed from service. That following a petition, the dismissal was set aside and another Ministerial Committee was set up which sat on 23rd June, 2005 with two members one Doctor and one Admin Officer with no Nursing representative. The Respondent and one Isiaka Tajudeen Olatunbosun who were being investigated were called together and they were not asked questions and neither were they required to defend themselves. “‘

On 8th November, 2005, the Respondent got a letter terminating his appointment. The Respondent pleaded and led evidence that Public Service Rules which govern his appointment was not complied with before his appointment was terminated and that he was not given fair hearing.

The Appellant joined issues with the Respondent when they asserted in their pleading that Public Service Rules was followed in terminating his appointment.

The Appellants called three (3) witnesses. Dr. Raymond Owolabi (DW1) who was purportedly prevented from carrying out the surgery, B.O. Ogunrinde (DW2) agreed that the appointment of the Respondent is governed by public Service Rules and DW3 a member of the Ministerial panel agreed that the Respondent never had the opportunity of cross examining witnesses who testified against him. He agreed Public Service Rules governs the appointment of the Respondent and no nurse was on the panel. He stated that Civil Service Commission was not involved in the discipline of the Respondent and that his panel was a mere investigative panel and disciplinary panel.

The learned trial judge in a considered judgment delivered on the 13th day of December, 2007 gave judgment for the Respondent as follows:-

“On the whole, I am of the humble view that the Plaintiff has proved his case on the balance of probabilities and therefore entitled to relief

1. It is accordingly granted.

On relief number 2, learned counsel has argued very strenuously that the plaintiff’s appointment does not enjoy a statutory flavour. The Plaintiff counsel held a contrary position.