The claimant, by a General Form of Complaint filed on 24th November, 2015 accompanied by the Statement of Facts, Claimant’ Written Statement on Oath, List of Witnesses and List of Documents, approached the Court for the following reliefs: 1. A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. 2. An Order of Court reinstating the claimant and restoring her to her position prior to the issuance of letter of termination to her. 3. An Order directing the defendant to pay to the claimant her arrears of salary from the date of purported termination to the determination of this suit at the rate of Fifty One Thousand, Fifty Four Naira Sixty Five Kobo (#51,054.65) per month. 4. An Order directing the defendant to pay the cost of litigation at Five Hundred Thousand naira (#500,000.00) only. 5. An Order of General Damages for the trauma and hardship suffered by the claimant for the wrongful termination of her appointment to the tune of Ten Million (#10,000,000.00) only. 6. An Order compelling the defendant to pay claimant’s office kilometer claims for seven (7) months from February, 2015 to August, 2015 at the rate of Ten Thousand Naira (#10,000.00) only amounting to Seventy Thousand Naira (#70,000.00) only. 7. An Order of General Damages to the tune of Ten Million in favour of the claimant. Claimant’s Case The Claimant was an employee of the defendant since April, 2006 when she was offered an appointment through a letter of Appointment dated 3rd April, 2006 and that following her employment she worked in the Catering Department of the defendant before she was transferred/posted to the Accounts Department where she worked in the Obstetrics and Gynecology revenue Unit till 2014 when she was transferred/posted out again. Claimant averred that her employment has a statutory flavor and as such, the termination of her employment must follow laid down rules as provided by extant laws establishing the defendant. Furthermore, that being a senior staff of the defendant, a proper constituted Board of the defendant has the power to approve the termination of her appointment. But that there has not been any such Board in place in the defendant’s hospital since May, 2015.She averred that on 2nd October, 2013, she was invited by an Investigative Panel set up by the defendant on an allegation of financial impropriety alongside other members of staff and that till date, nothing was communicated to her either verbally or in writing as to the outcome of the Panel’s report. Claimant stated that the termination of her employment is grossly irregular, callous, unlawful, null and void same not having followed due process, stating that it will service the cause of justice for the Court to order her reinstatement and payment of arrears of salaries from the date of termination of her appointment to her reinstatement. The defendants filed their STATEMENT OF DEFENCE filed on 11th March, 2016. The Defendants deny that claimant served the defendant without blemish when sometime in 2013, she was indicted for financial impropriety. Arguing that claimant cannot require the defendant to produce the copy of a query issued her in 2015, receipted and replied to by here on 6th April, 2015. The Defendant admitted that the claimant was served a letter of invitation for a chat with a panel of investigation dated 14th July, 2015 but deny that copies of the relevant documents in issue were not shown to her. The defendants maintain that the Internal Audit Report of July, 2013 and recommendations of the Investigation Panel, two separate panels all indicted the claimant. The claimant reacted by filing a REPLY TO STATEMENT OF DEFENCE 22nd September, 2016. Wherein the Claimant in reaction averred that the termination of her appointment did not follow due process. And that she was never indicted over the query issued to her. Arguing that whether a reason is stated in the termination letter or not, it did not follow due process having not emanated from the proper authority and proper authority being a properly constituted Board. And that she never committed any act of impropriety as none was found against her and that there was neither an audit report nor any reason for the termination of her employment. The Claimant stated that she was promoted severally as a result of which she rose from the junior to senior cadre of employment i.e. level 3 to 6 denying paragraph 15 of the Statement of Defense and that it is the duty of the defendant to constantly upgrade the performance of her staff through training both internal and external. The claimant stated that the termination of her appointment was irregular, unlawful, null and void and of no effect whatsoever same not having followed due process and that her action is not statute barred and that she is entitled to all the reliefs sought. At the trial the claimant testified as CW, adopted her written statements on oath of 24th November 2015 and 30th August 2015 which were marked Exhibit C1 and Exhibit C2 respectively proceeded to tender seven (7) exhibits. During cross examination the claimant as CW, testified that she accepted the offer of employment Exhibit C3 in writing and that she received one month salary in lieu of notice, and that during her employment she was given two queries to which she responded she appeared twice before the investigation panels and she appealed against the letter of termination. She further testified that there had been no board in the defendant’s institution as the last one was dissolved in May 2015. The defendants called one witness Ededet Eyoma Bassey, the Human Resources Director / Legal Adviser with the defendants, who testified as DW, adopted his written statement on oath which was marked as Exhibit D1 and tendered five (5) other exhibits. During cross examination DW testified that he was the head of Human Resources employed in November 2014, very familiar with the claimants records, familiar with the issues of procedure of the defendant and that his evidence was not based on first hand evidence. He further testified that the defendants had one Board, to which the Management reported and in the absence of the Board it would report to the Ministry. He also testified that by Exhibit C2, it was the Board of Management that was empowered to terminate the claimant and if there were no board the Ministry could terminate through its agents. And at the time of issuing Exhibit C3 there was no board in place and that the Ministry of Health as directed by the President of the Federal Republic of Nigeria. He answered in the negative the question that the Federal Ministry of Health takes over the function of the Board and that the Ministry oversees and that it could only direct the defendants. And that anyone working under the defendants employment was a Public servant and issues of effecting discipline are governed by the Public Service and where there is an absence of a Board the letter of termination are signed by the implementing person;- the Head of Human Resource Management. He also testified that the claimant was on Grade level 06 and Assistant Executive Officer, and that the claimant had never worked under DW’s direct supervision because the claimant was an accountant, was indicted by two panels tendering Exhibit D3-D3(31) and Exhibit D4- D4(51) after he was queried . And in response to the question that DW signed C4 as Deputy Director, and that he authorized the queries, and further testified that the defendants have only one Board; the Board of Management and that the claimant’s appointment was given by the Board of Management. DW testified that it was the Board that terminated the claimant, that in July 2015 the Commander in chief dissolved all the Boards and the Ministries took over, and by that direction the process was laid down. DW went on to tender the report of the Audit Panel and the Report of the Recommendation of the Investigation Committee which were marked Exhibits D9 and Exhibit D10 respectively. At the end of trial the parties were directed to file their final written addresses. The DEFENDANT’S FINAL WRITTEN ADDRESS was dated 31st October, 2016 and filed on 1st November, 2016. Wherein the defendants raised two (2) ISSUES: 1. Whether the claimant has presented a case strong enough to entitle her to judgment. 2. Whether claimant’s employment was properly terminated. The Learned Counsel to the defendants submitted that having known the state of the pleadings, the procedural law is that he who alleges proves and that pleadings do not constitute evidence. SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA v. DANKWABO (2016) 7 NWLR (PT. 1511) 284; WAZIRI v. GEIDAM & ORS. (2016) 2 MJSC (PT. 111) 83 @ 124, PARAS. F-G, Coram, Peter-Odili, JSC. Pointing out that if only the Board that can terminate claimant’s employment as she averred in her Statement of Facts, where was that proved on record? OLORUNTOBA-OJU v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 @ 136, PARAS. F-H; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150. Defence Counsel submitted that being a contract of employment, it is the only contract before the Court that must be complied with i.e. Exhibit C3. IDONIBOYE OBU v. NNPC (2003) 2 NWLR (PT. 805) 589; (2003) 4 MJSC 131. He submitted that whether the reports of investigation were communicated to claimant or not does not stop the defendant from terminating her employment. AJAYI v. TEXACO NIG. LTD. & 2 ORS. (1987) 9-11 SC 1 @ 6. It is counsel’s contention that the fact that claimant responded to the queries means that she was afforded fair hearing. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648, PARA. F Coram Rhodes-Vivour, JSC; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. Defendant’s Counsel submitted that by Public Service Rules under Paragraph 030402 and Chapter 3 Sec. 4 Paragraph 030407 (a), “claimant was even lucky not to have been dismissed out rightly”. He submitted that it is not necessary nor a requirement under the extant laws that before an employer summarily dismisses his employee from his service, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty bordering on criminality. S.B. OLANREWAJU v. AFRIBANK PLC (2001) FWLR (PT. 72) 2008. Arguing that the claimant as part of the failure of her case provided no proof or reference to the law allowing her to be reinstated when the law is that an employee cannot be forced upon an unwilling employer. OYEDELE v. IFE U.T.H. (1990) 6 NWLR (PT. 155) 194 C.A.; IWUCHUKWU v. NWOSU (1994) 7 NWLR (PT. 357) 379. #The CLAIMANT’S FINAL WRITTEN ADDRESS filed on 22nd November, 2016 and dated same day. The claimant raised for determination the following two (2) ISSUES 1. Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. 2. Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. ON ISSUE 1 Whether the termination of claimant’s appointment followed due process as laid down by Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Learned Counsel to the claimant Rueben Onyekwelu Esq. submitted that Sec. 10 (3) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, provides a dividing line between the discipline of an erring senior staff who can only be dismissed or terminated on the direction of the Board and his/her junior counterpart who may be disciplined (dismissed or terminated) by the Chief Medical Director (Management) without recourse to the Board. He submitted that Sec. 9 (1) of the Act is the statutory laid down procedure to discipline the claimant and that facts admitted need no further proof. ODUNZE v. NWOSU (2007) 31 NSCQR 378; NASI v. UBA (2005) 23 NSCQR 127 @ 130; ADUSEI v. ADEBAYO (2012) 49.3 NSCQR 1492 @ 1494; JOLASUN v. BAMGBOYE (2010) 44 NSCQR 94. Contending that the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010 is not a piece of evidence in the mold of what the defendant is trying to categorize as requiring tendering in open court, but a statutory provision which the court should take judicial notice of as provided by Sec. 122 (1) of Evidence Act, 2011. AG. FED. V. ABIA STATE (2002) FWLR (PT. 102) 1, per Uwais, CJN. He further submitted that all that is required is to plead that the party is relying on a statute as the claimant has done in paragraphs 6, 7 and 8 of the Statement of Facts. BENDEL NEWSPAPERS CORPORATION v. OKAFOR (1993) 4 NWLR (PT. 289) 617; MAKANJUOLA v. BALOGUN (1989) 3 NWLR (PT. 108) 192; A.G BENDEL STATE v. A.G. FEDERATION (2001) FWLR (PT. 65) 448. ON ISSUE 2 Whether by the provision of extent law governing the removal and discipline of senior staff of the defendant (i.e.) Sec. 9 1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010, it is not established that the claimant’s employment has a statutory flavor. Learned Claimant’s Counsel submitted that termination of any employment enjoying statutory flavor must follow the process as prescribed by statute. LAGOS UNIVERSITY TEACHING (HOSPITAL MANAGEMENT BOARD) v. MRS. OLANIKE BETTY ONI (2007) 4 FWLR 6987 @ 7028. He urged the Court to hold that this clause reinforces and is a strong reminder to the Board and Management that there are laid down procedure as provided by the Act in discipline of employees. CENTRAL BANK OF NIGERIA v. IGWILO (2007) 5 KLR (PT. 235-236) 2275 @ 2277. Submitting that where an employee’s service is protected by statute (as in the present case) and his employment is wrongfully terminated, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. SHITTA BAY v. PUBLIC SERVICE COMMISSION (1981) 1 S.C. 40; UDO v. CROSS RIVER NEWSPAPAER CORPORATION (2001) 14 NWLR (PT. 732) 116; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; Galinje, JCA in REGISTERED TRUSTEES OF C & S v. IJAODOLA (2007) FWLR (PT. 389) 5921 @ 5925. To the claimant, the defendant has not discharged the burden placed on her by reason of the provision of Sec. 133 (2) of the Evidence Act, 2011 and that the defendant has also failed to show that even the alternative route provided by the so called presidential directive was communicated to the management through circular or memo, or that any directives was received from the mother Ministry by positive evidence as required in the presidential directive. ALAO v. KURE (2000) FWLR (PT. 6) 889; OYOVBIARE v. OMAMURHONU (2001) FWLR (PT. 68) 1129. It is Claimant’s counsel’s submission that where a public servant is accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. NIGERIAN TELECOMMUNICATION LIMITED v. AWALA (2001) 45 WRN 146; LAOYE v. CIVIL SERVICE COMMISSION (1989) 2 NWLR (PT. 106) 652; GEIDAM v. NATIONAL ELECTRIC POWER AUTHORITY (2001) 2 NWLR (PT. 696) 45. He urged the Court to hold that any indictment flowing or contained in Exhibit D12 is a travesty and lacking in substance. SOKEFUN v. AKINYEMI (1980) FEDERATION OF NLR 184. Counsel to the claimant also submitted that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements as held in the case of NNPC v. CLIFCO (2011) 46 NCQR 114 @ 120; SHENA SECURITY LIMITED v. AFRO PAK (2008) 34.2 NSCQR 1287 @ 1291; REYNOLDS CO. LTD. V. ROCKONOH CO. LTD. (2005) 22 NSCQR 1005 @ 1010, per G.A. Oguntade, JSC. The defendants then filed a REPLY TO CLAIMANT’S FINAL ADDRESS on 25th November, 2016 and dated 24th November, 2016 responding directly to the issues raised by the claimant. ON ISSUE 1 Defendant’s Counsel argued that Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15 relied on by claimant refers to the removal and discipline of clinical, administrative and technical staff, which does not include claimant who was employed by her own letter of appointment tendered as Exhibit C3 as Catering Assistant. Furthermore, that she led no evidence to prove that she fell into any of the 3 categories and that the Court cannot be left to decide on conjecture. ON ISSUE 2 Counsel to the defendant submitted that it is not true as argued by claimant in paragraph 5.6 – lines 7-8, that “The Minister however exercises control (sic) of parastatal at policy level through the Board of the parastatal only”. This is so because, by Sec. 17 of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, the Minister is empowered to give to the Board directors of a general character…, etc., that the Minister is not restricted strictly to matters on policy. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant in this suit is entitled to the reliefs sought. Before I delve into the merits of this issue I shall address the objection raised by the claimant during trial that the defendant’s exhibit were all photocopies In the instant case the claimant did not further raise this objection in his final address as directed by the court depriving the court from addressing the particulars of his objection be that as it may; the procedure in this court made possible by the case of KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED  27 NLLR (PT. 78) 374, and Section 12(2) to the effect that this court is flexible and informal and with the result that all frontloaded documents are deemed admitted unless expressly objected to and when the objection is raised the party is at liberty to argue his objection in his final address. The purport of the claimant’s objection I find is that the defendants tendered documents without appropriate or giving any foundation. Now bearing in mind that the whole purpose of the court is to accomplish substantial justice and not be derailed by technicalities as well as considering the pronouncement of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, that “the Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience” and bearing in mind that by Order 19 Rule 9(ii) of the NIC Rules 2007 provides that “Documentary evidence shall be put in and may be read or taken as read by consent”. None of the frontloaded documents either by the claimant or defendant was specifically objected to by the defendant. As I indicated earlier, they are deemed admitted. And considering that the claimant failed to raise the specifics of their objection in their final address all that is left is for the court to their evidential value, anything else would be giving in to undue technicality which the interest of justice I find dies not support. All in all I find that all the defendants exhibit D were rightly admitted. Now to the merit of this suit. The reliefs of the claimant are as follows; 1. A declaration that the termination of the claimant’s appointment with the defendant is grossly irregular, callous, unlawful, null and void same not having followed due process. 2. An Order of Court reinstating the claimant and restoring her to her position prior to the issuance of letter of termination to her. 3. An Order directing the defendant to pay to the claimant her arrears of salary from the date of purported termination to the determination of this suit at the rate of Fifty One Thousand, Fifty Four Naira Sixty Five Kobo (#51,054.65) per month. 4. An Order directing the defendant to pay the cost of litigation at Five Hundred Thousand naira (#500,000.00) only. 5. An Order of General Damages for the trauma and hardship suffered by the claimant for the wrongful termination of her appointment to the tune of Ten Million (#10,000,000.00) only. 6. An Order compelling the defendant to pay claimant’s office kilometer claims for seven (7) months from February, 2015 to August, 2015 at the rate of Ten Thousand Naira (#10,000.00) only amounting to Seventy Thousand Naira (#70,000.00) only. 7. An Order of General Damages to the tune of Ten Million in flavour of the claimant. Reliefs 1- 3 are for a declaration that the claimants termination was grossly irregular, callous, unlawful, null and void same not having followed due process and an order reinstating her to her appointment with all due salaries and allowances from the date of the purported termination until the date of this judgment/ While reliefs 4 and 5 are for reimbursement of legal cost incurred by the claimant and damages for trauma and hardship following an unlawful termination. Relief 6, is for Kilometre allowance while Relief 7 Is for another claimant of N10m in General damage. In determining these reliefs the Court is required to ascertain the employment status of the claimant so as to ensure she received her due under the law. The Supreme Court in the case of LONGE Vs. FBN LTS  LPELR 1793 SC held that “….there are three categories of employment (a) Purely Master and Servant relationship (b) Servants who hold their office at the pleasure of the employer (c) Employment with statutory flavour….” The defendants have argued that the claimant’s appointment was not statutory and the relationship, purely a master and servant one devoid of any special characterizations. While it is the claimants Counsel’s contention that the claimant is a senior staff of the defendants and that her employment has statutory flavour, the defendants went further to argue that the claimant has not shown the court how she qualifies as Clinical, administrative or Technical staff and that the claimant has not put forward any legal requirement to prove that fact. It is on record that the claimant was employed in 2006 and terminated in 2015, meaning that the claimant had worked for 9 years plus. The claimant has not put forward any proof of her confirmation, Exhibit C3, provides for a two year probationary period. Now This court has held that in a situation when an employee is allowed to continue in employment beyond the period of confirmation without let from the employer such an employer is precluded from continuing to treat such an employee as an unconfirmed staff, see the cases of TOTAL (NIG.) PLC V. ONUOHA  11 NWLR (PT. 725) 634 and OBAFEMI AWOLOWO UNIVERSITY V. ONABANJO  5 NWLR (PT. 193) 549 CA. This is not one of the reliefs sought by the claimant albeit and by SUIT NO: NICN/IB/88/2013 DR. OLADELE OSOSANYA Vs. GOVERNING COUNCIL OF FEDERAL UNIVERSITY OF AGRICULTURE, ABEOKUTA & 3 ORS. DATED: 13th NOVEMBER, 2014 “An unconfirmed staff cannot claim the benefits that inure in a statutory employment” see also MOHAMMED M. ALHASSAN V. AHMADU BELLO UNIVERSITY, ZARIA & ORS  LPELR 8138 CA, IGWILO VS. CENTRAL BANK OF NIGERIA (2007) 14 NWLR (PT. 1054) 393. The claimant had pleaded that she was a Senior staff, she had put forward no evidence to the effect that she had been promoted or confirmed .See the unreported case of NICN /121/AK/2013 ABODURIN MOSES OLA & 31 ORS Vs. GOVERNING BOARD RUFUS GIWA PLOYTHECHNIC OWO & ANORS (unreported) delivered 29th September 2014 where this court held that failure to present evidence of advancement in employment left the court no alternative than to treat the claimant as if he were still at his entry level. In the instant case the claimant did not even prove that level 07 was a senior service post in the defendant. Be that as it may be the law requires the court to determine the nature of the claimant’s employment. The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT  2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE  LPELR 4150 CA para C In SULIEMAN ADAMU Vs. MOHAMMMAD SANI TAKORI & ORS  LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE  6 NWLR (Pt. 920) 1 at p 19-20. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O.  LPELR 4149 CA page 15 para B. In the instant case the claimant has tendered Exhibit UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA MRS. ELIZABETYH UTIBE BASSEY 3rd April 2006 6 UNICAL LANE CAL. Dear Sir/ Madam OFFER OF APPOINTMENT I am pleased on Behalf of the Board of Management of the above Teaching Hospital to offer you the post of CATERING ASSISTANT at the Hospital on a commencement salary of N715372 per annum in the salary CONHESS/CONMESS 3/1 with effect from the date of your assumption of duty. 2. This offer of appointment is subject to your being passed mentally fit for service with the Teaching Hospital. 3. This appointment will except where your services are transferred after a previous confirmation, be on probation for two years or for longer period as may be deemed advisable after which it will be confirmed one pensionable grounds. 4. Within the probationary period, if it is established to the satisfaction of the Head of Department in which you are serving that you are not qualified for efficient service, or unsuitable in other ways, your appointment may be terminated at anytime by one months’ notice in writing or by payment of one month’s salary in lieu of notice without any compensation. 5. Unless you are dismissed and provided you are not on any bond to serve the Hospital for a period either party may terminate your employment by a month’s notice in writing or with the consent in writing of your Head of Department by the payment of one month’s salary in lieu of notice. 6. The duties of the post shall include the usual duties of this office in which you are engaged, and any other suitable duty the Board may call upon you to perform. You shall not either directly or indirectly engage in or be concerned with any other service or business whatsoever or receive commissions or profit of any kind but shall devote the whole of your time and attention to the service of the Board and shall use your utmost exertion to promote the interest of the Teaching Hospital. You shall conform to the rules and regulations of the Board in so far as the same are applicable 7. You will be subject in all respects to all the conditions of service from time to time by the Board of Management. These conditions are usually those comparable to posts in the Federal Public Service of Nigeria 8. If you are prepared to accept this offer, I shall be glad if you do so in writing and at the same time indicate the date upon which you would be prepares to assume duty. This offer of appointment will lapse if not taken within one month. Yours faithfully (Signed ANTIGHA BASSEY ACIPM AMNIM For: Director of Administration The claimant tendered no other document in furtherance of the nature of her appointment neither did she tender the rules and regulation of the Board if any. The claimant had pleaded that her appointment was governed by the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Cap 463 LFN 2004 In the case of JOSEPH & ORS v. KWARA STATE POLYTECHNIC & ORS (2013) LPELR-21398(CA) it was held following the Supreme Court in the case of FAKUADE V. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47 at 63; (1993) 6 SCNJ 35 at 44. that "the fact that the Respondent is the creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavor. A similar issue came up before the Court of Appeal in " P. O. U. IYASE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (2000) 2 NWLR (Pt.643), pg. 47” Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particularly evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure. If on the other hand, the contract of service is determinable by the agreement between the parties, such contract cannot be said to have statutory flavour. "Per IBIYEYE, J.C.A. (P. 18, paras. B-F) In IAYSE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (Supra), the Court of Appeal considered the import of the letter of appointment and held “the court must confine itself to the terms of contract of service between the parties which provide for their rights and obligations...... . it therefore follows that before the contractual relationship between the appellant and the respondent with regard to removal of the former by the latter as in this appeal, can enjoy the special status Section 9 of the Cap 463 must be expressly incorporated into either exhibit A or B. it is such incorporation that gives rise to the special treatment by way of statutory or legal flavour in the event of the master deciding unilaterally to terminate the appointment of the servant” (Exhibit A and B in that case referred to the letter of Appointment and conditions of service),” Looking at Exhibit C3 in the instant case I find that nowhere does the letter indicate that the claimant’s appointment is governed or made pursuant to a statute. In addition in IYASE CASE (Supra) the Court of Appeal did hold that, “.....if on the other hand the contract of service is determinable by agreement between the parties, such contract cannot be said to have statutory flavour”. From the evidence before the court and Exhibit C3, I find that the relationship of the claimant with the defendant is a contract of employer/ employee similar to what is commonly referred to as master and servant, created by. Conditioned by and subject to the express provision of the Exhibit C3 and is one relationship which is completely devoid of statutory flavour. Having determined the status of the claimant the next thing on board is to look at the propriety of her termination, By Exhibit 3, the claimants appointment was made by the Board and her termination is stated therein to be effected by the Board of management. Oputa JSC in the case of C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR(1985) LPELR-2565(SC) held that “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. .....” . Now the claimant has maintained that at the time of her termination there was no Board in occupation, the last one having been dissolved in May 2015. The defendants have not controverted this fact but submitted that assertion rather they acceded contending that in the absence of a Board the Minister of Health steps in as the Board, in support of this contention the defendants on the one hand tendered Exhibit D5, a newspaper cutting duly certified highlighting the story titled “Buhari dissolves Federal Boards, sacks NIMASA D-G” of July 17th 2015 with asterixed portions; ‘Until the Boards are reinstated Chief executives are to refer all maters requiring their Boards attention to the President through their Permanent Secretary of their supervising Ministries’’ and on the other hand the defendant asked the court to rely on NTEWO V UCTH & ANOR CA/C/52/2009 delivered on 21st March 2013 with regard to actions taken where there were no Boards. The problems with both these contentions are as follows: with regard to the newspaper article, as argued by the claimant I find that the defendants present the Law or enabling Act that donates power to the Minister of Health to step in and act as Board in the absence of a Board, neither have they put forward any evidence that this matter was ever referred to the Permanent Secretary for the President nor is there before this court any evidence that the action they, the defendants, subsequently took, in terminating the claimant was actually undertaken on the advice or directives of the President. And with regard to NTEWO’s case Supra, in that matter the Court of first instant and the Court of Appeal both placed reliance on a circular of Government with respect to the dismissal of the claimant and no such circular was presented to the Court in the instant case inter alia. The Learned Author in his book Sasegbon’s Laws of Nigeria, An Encyclopaedia of Nigerian Law and Practice, First Edition, Volume 16 at Paragraph 233- Determination of Master and Servant Relationship. Stated that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void”. I find that the mode of termination of the claimant was not in accordance with Exhibit C2. The claimant was not removed by the Board the person empowered to remove her and as such her termination was wrongful. The letter of termination ;Exhibit C3 is itself reproduced below : UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA Mrs. Elizabeth Utibe Bassey u.f.s. Deputy Director (Finance & Accounts) Accounts Department U.C.T.H. Calabar Sir TERMINATION OF APPOINTMENT I am directed to refer to your contract of engagement contained in clauses 4 & 5 of your appointment letter and accordingly terminate your appointment with the University of Calabar Teaching Hospital with immediate effect since your services are no longer required. You will however be paid one month’s salary in lieu of notice. You are therefore to hand over all Hospital property and or documents including your staff Identity Card to your Head of Department. By a copy of this letter, the DDF/A has been directed to stop your salary / allowances with immediate effect. (Signed) Ededet Eyoma Deputy Director (Human Resources) For Director In addition to this letter being issued to the claimant without the due authorization of either the Board or the “Minister” or the Presidency through the Permanent Secretary hence making Exhibit C3 a letter issued without due authority, both parties presented evidence of disciplinary action taken by the defendants on the claimant prior to the letter of termination. From the evidence before the court and the disciplinary processes themselves it becomes apparent that DW issued the queries to the claimant, the reports of the panel that undertook the audit review recommended that the claimant among others be surcharged while the 2nd panel recommended her dismissal in February 2014. These panels reported to DW, the question arises why any action wasn’t taken between February 2014 and August 2015 when there was actually a Board in place. The case of the defendant was that the President dissolved Federal Boards on or around July 2015 relying on Exhibit D5, now Exhibit D2, the Memo directing the implementation of the 2nd panel’s report was issued on 15th August 2015 (was certified by DW) following a therein stated Meeting of Management which was stated to have held on the 10th August 2015, the minutes of the said meeting were not presented to court and no explanation was given why the matter was suddenly resurrected barely a month after the publication of the dissolution of Boards. The defendants have not put before the court any evidence which authorizes DW to terminate the claimant, there is no evidence that the report of the 2nd Panel, ‘The Panel to Investigate a Case of Financial Impropriety against the Under-listed Staff of Accounts Department UCTH’ was ever submitted to the Board, Permanent Secretary not to mention the Presidency. The defendants tendered Exhibit D3 and D4 reports of panels; the former D3 dated February 2014 was the report of Financial impropriety against the under-listed staff of the Accounts department, a report made by a 5 man investigation panel who inter alia reviewed Exhibit D4, which was dated 24th June 2013 and is the Audit. Looking at these two documents I find that D4submitted a summary and analysis of the Auditor investigation and consisted mainly of tabulations of routine inspections of various sections if the hospital, while Exhibit D3 was made up primarily of excerpts of interviews held and errant copies of receipts obtained from patients where available. In this court, when dealing with excerpts, summaries and annexes of documents frontloaded or tendered by the parties without showing the Court the fuller documents from which they were extracted. Such excerpts were discountenanced. This Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court, to enable the Court ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, In like manner, Exhibits D3 and D4 in the instant case, in being Summaries, analyses and excerpts made from sources which were not tendered before this court I find Exhibits D3 and Exhibit D 4 would have no evidential value and so would be discountenanced for purposes of this judgment. See also the unreported case of SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014 Having said that the defendant I find did not rely on the disciplinary procedure to terminate the claimant rather they relied on Exhibit C3, the letter of appointment to terminate the claimant in line with paragraphs 4 and 5 therein. The proper thing for the defendant to do in a situation where the Board approval is required to take any action and no Board is in place, would be to wait until the Board is reconstituted. See the case SUIT NO. NICN/LA/590/2012 ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY delivered October 24, 2016 This court held that “Rather than await the composition of the Board, the Chairman/Chief Executive in breach of Regulation 38 re- instated the claimant. The court went on to hold that “ that The claimant was then erroneously recalled from interdiction and reinstated ……The defendant being a statutory body, it is imperative for it to comply fully with its Regulations on discipline” that court held that as the claimant’s appointment being one with statutory flavour, the failure of the defendant Agency to comply with Regulation 38 and 121 rendered his recall from interdiction and reinstatement null and void”. By law in a Master and Servant relationship, even when an employment is wrongfully terminated, and even if the termination is wrongful the employment in question remains determined, the termination still stands, as the law does not allow a servant to be forced on an unwilling master, the only remedy open to the wrongfully terminated employee ordinanrily would be damages. See Sasegbon’s Laws of Nigeria, An Encyclopaedia of Nigerian Law and Practice, First Edition, Volume 16 at Paragraph 233- Determination of Master and Servant Relationship. Who went on to state as follows; “The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.” – per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620.” Also in the case of C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR (Supra) it was held that “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach. I find that the action undertaken by the defendants in terminating the claimant evolved outside the provisions and ambit of Exhibit C3, Nothing before the Court empowers the DW to act in the manner he did. However recent Labour Law practice has established that in situations where the termination is, in additional to being wrongful a direct result of an unwarranted untoward, ill motivated act of executive lawlessness, the court have held that one month’s salary in lieu of notice is not sufficient, See the case of SUIT NO: NICN/LA/472/2012 MR. OJUTALAYO JOHN FOLAYAN Vs. MORLAP SHIPPING COMPANY LTD delivered 4th December 2015 where this court was discourage the abuse of discretion by employers who wield high power against their employees. I find that this matter is one of such cases where the legal prescription of one month salary in lieu of notice, as damages does not satisfy the situation. The claimant is asking for N10, 000, 000, 000.00 but has not shown the court how she arrived at that sum. In the case of MR. OJUTALAYO JOHN FOLAYAN Vs. MORLAP SHIPPING COMPANY LTD (Supra) this Court considered the argument of employer highhandedness, and relying on, UMTHMB V. DAWA  16 NWLR (PT. 739) 424 CA held that every employer, including every public body, must be careful not to abdicate or abuse its powers. That employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. That in the determination of the employment of employees, they must at all times allow themselves to be guided by the rule of natural justice; and that the law does not permit employers to act arbitrarily. All of this no doubt justifies some sort of compensation for the claimant given the power of this Court to do so under section 19(d) of the NIC Act 2006. The claimant did not supply any proof of her salary to enable the court extrapolate this as a basis for calculating damages, be that as it may the provision of Section 19(d) stipulate a lump sum. Accordingly I award the sum of One Million Naira (N1,000,000.00) as general damages/compensation to the claimant. The claimants had contended that where a public servant is accused of a misconduct bothering on criminality, the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. This is however not the current position of the law see the cases of OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 where “a similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 –‘The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. (2004) 12 NWLR (PT. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must first be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA POLY v. MAINA (2005) 10 NWLR (PT. 934) 487 CA reiterated and applied this principle. When it held that it is neither necessary nor is it a requirement under the Constitution that before an employer summarily dismisses his employee from service, the employee must be tried before a court of law before the defendants can discipline her. The claimants case, for the avoidance of doubt the claimants case succeeds in part and only this far Reliefs 1- 3 for a declaration that the claimants termination was grossly irregular, callous, unlawful, null and void same not having followed due process and an order reinstating her to her appointment with all due salaries and allowances from the date of the purported termination until the date of this judgment. The position of the law is that it is only employment that have statutory flavour and been found illegal, unlawful null and void, and it only in respect of these type of employment that the court can hold the salaries subsisting after a wrongful termination and with due regard to this court’s finding that the claimant’s employment is not statutorily flavoured, the Court can only declare that the claimants termination was wrongful. While reliefs 4 and 5 are for reimbursement of legal cost incurred by the claimant and damages for trauma and hardship following an unlawful termination. I had already dealt with the latter. As for the claim for N500,000 as cost of litigation, the claimant did not show to the Court how he came about this figure as cost. In any case, BY GUINNESS (NIG.) PLC V. NWOKE  12 NWLR (PT. 689) 135 AT 150 it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party. The Claimant merely submitted that that a successful party in a litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlements. When GUINNESS NIGERIA PLC V. EMMANUEL NWOKE (SUPRA) held that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, it simply was frowning on something like this. The claimant tendered Exhibit C7, a Memorandum of Understanding indicating that the claimant and two 0thers had paid N1, 000, 000.00 to her Counsel as part payment for his legal representation for them. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD  LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI  LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. The Memorandum of Understanding tendered in this case does not begin to mention the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees appears speculative. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. Relief 4) accordingly fails and so is dismissed. Relief 6, is for Kilometre allowance yet at no time did the claimant lend any proof as to her entitlement to this relief, except the questions put forward in cross examination: Onyekwelu: she is also owed her Kilometre claim as an audit staff DW : I am not aware of that Onyekwelu : But you are aware that staff that recover loans are paid kilometre allowance claims DW : it used to be so, but it was stopped several years ago, due to abuse, only dispatch attracts kilometre allowance or claims now. This relief has not be substantiated to the satisfaction of this court. This relief therefore fails and cannot be granted. Relief 7, is for another claimant of N10m in General damage. This court has not been shown any rational to consider a 2nd relief for damages. This relief is hereby dismissed. The Court judgment therefore is this. 1. The claimant’s termination is wrongful. 2. The defendant shall pay to the claimant the sum of N1,000, 000.00 (One Million Naira only) as damages for wrongful termination of appointment. 3. Cost of this suit is placed at N100, 000.00 All sum to be paid within 30 days after which interest of 10% per annum will attach. This is the courts judgment and it is hereby entered accordingly. ........................................ Hon. Justice E. N. N. Agbakoba Judge.