Mrs. Rose E. Efuribe V. Dr. G.M. Ugbam & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.(Delivering the Leading Judgment)

This is an appeal by the appellant against the decision of the Federal High Court holden at Umuahia presided over by Honourable Justice J.T. Tsoho delivered on the 8th day of July, 2005.

The facts leading to this appeal as can be gathered from the record of proceedings before the Court are that the Appellant was a Senior Public Servant/Officer employed by the Federal Ministry of Health but attached to the Federal Medical Centre Umuahia. Following due transfer of her service from UNTH Enugu on Salary Grade HATISS 13 i.e. Grade Level 15 in the Public Service of the Federal Republic of Nigeria, she occupies the position of Chief Personnel Officer and at all times material to this action, the Head of Administration/Secretary to the Board of Management of the Federal Medical Centre, Umuahia. She avers that the Federal Medical Centre Umuahia is a Parastatal under the Federal Ministry of Health (4th Respondent) that she performed her duties diligently and earned her due promotions.

It is Appellant averment that though she works at the Federal Medical Centre Umuahia represented by 1st to 3rd Respondents, that she is a staff and employee of the Federal Ministry of Health (4th Respondent) in that the 1st to 3rd Respondents is an integral part and creation of the 4th Respondent, the Federal Ministry of Health; that the Federal Medical Centre, Umuahia, has no separate existence of its own neither does it have Rule and Regulations of its own nor any separate conditions of service, separate or apart from those regulating conditions of the 4th Respondent i.e., the Federal Public Service Rules. Specifically, the appellant avers that it is the said Federal Public Service Rules that applies to and governs/regulates her terms and conditions of service with the Respondent and that before the 1st to 3rd Respondents can discipline any staff of the status of the Appellant, they must seek and obtain the approval and or delegation of authority of the 4th Respondent who is vicariously liable for acts of the 1st to 3rd Respondents as in this case. Further, the Appellant avers that chapter 4 of the said Public Service Rules contains the Disciplinary Procedure relating to her.

It is the case of the Appellant that the 1st to 3rd Respondents have no power under the said Rules to discipline her at all not being the Federal Public Service Commission or Minister In Charge of the Federal Ministry of Health. That in any case, she never committed any misconduct or disciplinary offence known to the Rules nor was she ever accused of any such offence by the 1st to 3rd Respondents or the Public Service Commission.

It is further the case of the Appellant in her pleading that contrary to the Rules of Natural Justice and fair Hearing, and without any authority from the Federal Public Service Commission or the Minister of Health, the 1st to 3rd Respondents without Jurisdiction, competence and ultra-vires their powers, purported to try the Appellant for non-existent/imaginary offences without giving her unbiased opportunity to defend herself (being her accusers, prosecutors and the Judges in their own cause) and without complying with conditions precedent to such disciplinary measures under the public service Rules and by such unlawful illegal, unconstitutional means. 1st – 3rd Respondents unlawfully purported’ to compulsorily and arbitrarily retire her prematurely from the service of the Federal Government vide letter dated 9th December, 2002.

In its Judgment the trial Court made findings to the effect be that the Appellant is a public officer within the meaning of the Constitution; that her employment is regulated by the Public Service Rules; that employment enjoys statutory flavour; that the 1st to 3rd Respondents have no powers to retire or discipline the Appellant under the Rules and thus Exhibit H purportedly retiring her was ,made without authority/Jurisdiction and therefore null and void; the learned trial Judge relying on the case of MOROHONFOLA VS. KWARA TECH. (1990) 4 NWLR (pt, 145) .506 at 518 proceeded to hold that the Appellant ought to Exhibit her letter of appointment as same creates the right sought to be declared; that there was in the circumstance no other ample evidence to establish the terms of the contract of employment between the Parties; and that the said letter of appointment being crucial and indispensable in the circumstance, the failure of the Appellant to plead or Exhibit the said letter of appointment was fatal to her case, the trial Court accordingly dismissed the Suit.

Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court vide her Notice of Appeal 4th October, 2005 containing 8 grounds of appeal.

We heard the appeal on the 11th of February, 2010. The Applicant’s brief of argument is dated 5/4/07 and deemed filed on 4/7/07. The Appellant also filed Appellant’s reply brief dated 20/9/07 and filed on 21/9/07. Learned Counsel for the Appellant adopted the two briefs of argument and urged the Court to allow the appeal and set aside the Judgment of the Federal High Court.

The Respondents brief of argument is dated and filed on the 4/7/07. Learned Counsel for the Respondents adopted the said brief of argument and urged the Court to dismiss the Appeal.

From the eight grounds of appeal, learned Counsel for the Appellant formulated three Issues for determination as follows:

(i) Whether having regard to the averments, of the Applicant in her statement and affidavit in support of the application as to the terms and conditions of her employment, the admissions of the Respondents and findings of Court to these effect, the learned trial Judge was right in holding that the failure to tender/exhibit her letter of appointment in the circumstance was fatal to Applicant’s case.

(ii) Whether the learned trial Judge was right in holding that the Applicant was afforded fair hearing in the circumstance of this case.

(iii) Whether the learned trial Judge was right in refusing to grant the Applicant the Relief/Remedy Quashing her purported compulsory premature retirement in Exhibit H after finding that the action of the 1st to 3rd Respondents as contained in Exhibit was ultra vires, their powers and without Jurisdiction.