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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 2, 2015 SUIT NO. NIC/LA/175/2014 BETWEEN 1. Fasilat Olayinka Lawal 2. Sekinat O. Sanusi - Claimants/Applicants AND 1. Dr O. O. Odunubi, The Medical Director, National Orthopaedic Hospital 2. Mrs. M. O. Pikuda, Director of Administration, National Orthopaedic Hospital 3. Mrs. I. O. Olufidipe, Assistant Director Nursing Administration, National Orthopaedic Hospital 4. Dr Mike Ugbeye, Head of Clinical Services, National Orthopaedic Hospital 5. Mrs. Adebowale, Head Nursing Services, National Orthopaedic Hospital 6. National Orthopaedic Hospital Management Board - Defendants/Respondents REPRESENTATION B. A. M. Fashanu, SAN, and with him are Messrs H. T. Fajimite, Nasir Runmonkun, S. M. Obale W. A. K. Amao, L. K. J. Layeni and T. Junaid, for the claimants. Olakunle Ajala and Miss Ayoyinka Roberts, for the 1st – 5th defendants. Opeyemi Igbayiloye, and with him is Miss Oluwafunmilayo Oleribe, for the 6th defendant. RULING The claimants/applicants had taken an originating summons dated and filed on 14th April 2014 praying the Court to determine the following questions – 1. Whether by the provisions of the Nursing and Midwifery (Registration, etc.) Act Cap N143 Laws of Federation of Nigeria 2004 the Nursing and Midwifery Council of Nigeria is not the only body statutorily empowered to prescribe, make and lay down rules and regulations governing the nature and style of the uniform to be worn by Nurses working and/or serving in the Federal Government and State Government owned Hospitals, Clinics and Nursing Schools, including the National Orthopaedic Hospital, Igbobi Yaba, Lagos. 2. Whether where the Nursing and Midwifery Council of Nigeria has prescribed and laid down an approved mode of dressing, a Nurse working and/or serving in a Federal Government and/or State Government owned Hospital, Clinic and Nursing School such as the National Orthopaedic Hospital, Igbobi Yaba, Lagos who dresses in conformity with the-prescribed mode of dressing can be said to be improperly dressed and liable to disciplinary action. 3. Whether where the Nursing and Midwifery Council of Nigeria has prescribed and laid down an approved mode of dressing for Nurses working and/or serving in a Federal Government and/or State Government owned Hospital, Clinic and Nursing School such as the National Orthopaedic Hospital, Igbobi Yaba, Lagos, the Management of any such establishment has any statutory power to alter such mode of dressing by an oral directive. 4. Whether the oral directive issued to the applicants by the first to the fifth respondents compelling them to remove the shoulder-length hijab they wore over the Nurses’ uniform, in complete defiance of the dictates of the Islamic religion professed by the applicants is not a violation of the applicants' fundamental rights to freedom of religion and religious practices as guaranteed under the provisions of section 38 of the 1999 Constitution of the Federal Republic of Nigeria and Article 8 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act. 5. Whether serial intimidation, harassment, threats of disciplinary actions and inhibitions from working meted to the applicants by the respondents, including the letter dated the 11th of April 2014 directing the applicants to appear before a disciplinary panel on the 14th of April 2014 on the sole ground of their wearing a shoulder-length hijab on their Nurses’ uniform are not a violation of their fundamental rights to freedom from discrimination on the basis of religion as guaranteed under section 42 of the 1999 Constitution of the Federal Republic of Nigeria and Article 2 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act. Consequent on the determination of the above set questions; the claimants/applicants prayed the Court for the following reliefs – a) A declaration that the applicants’ mode of dressing of wearing a shoulder-length hijab on their Nursing uniform is in conformity with the prescribed dress code for Nurses in all Federal and State Government run and managed Hospitals, Establishments and Schools, including the National Orthopaedic Hospital, Igbobi, Lagos as contained in the Nursing & Midwifery Council of Nigeria Circular Reference No. N&MCN/CMF/721/1/3 dated the 11th of February 2001 that “Female Nurses should wear either a Nurse Cap or a shoulder-length hyjab” (hijab) and is thus proper, valid and legal. b) A declaration that the oral directive of the first to the fifth respondents to the applicants not to wear shoulder-length hijabs on their Nurses’ uniform is a personal whim of the respondents and is not in conformity with the prescribed dress code for Nurses in all Federal and State Government run and managed Hospitals and Schools, including the National Orthopaedic Hospital, Igbobi, as contained in Nursing & Midwifery Council of Nigeria Circular with Reference No. N&MCN/CMF/721/1/3 dated the 11th of February 2001 and it is thus illegal, invalid, null and void and of no effect. c) A declaration that the oral directive of the first to the fifth respondents to the applicants not to wear shoulder-length hijabs on their Nursing uniform and their refusal to allow the applicants carry out their lawful duties for that singular reason is a violation the applicants’ fundamental rights to freedom of religion and religious practices as guaranteed under the provisions of section 38 of the 1999 Constitution of the Federal Republic of Nigeria and Article 8 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act and it is thus unconstitutional, illegal, null and void. d) A declaration that serial intimidation, harassment, threats of disciplinary actions and inhibitions from working meted to the applicants by the respondents, including the letter dated the 11th of April 2014 directing the applicants to appear before a disciplinary panel on the 14th of April 2014 for the sole reason of their wearing shoulder-length hijabs on their Nurses’ uniform are violations of their fundamental rights to freedom from discrimination on the basis of religion as guaranteed under section 42 of the 1999 Constitution of the Federal Republic of Nigeria and Article 2 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act and they are thus unconstitutional, illegal, null and void. e) An order directing the respondents to tender a public apology to the applicants and which is to be posted on a conspicuous part of the Public Notice Board of the National Orthopaedic Hospital, Igbobi, Lagos. f) The sum of N5 Million as damages for the serial breaches of the fundamental rights of the applicants committed by the respondents. g) An order of injunction restraining the respondents by themselves, their agents, servants, proxies or anyone acting through them or on their behalf from intimidating, threatening, harassing, inhibiting from working, disciplining or in any way discriminating against “the s” for the sole reason of their wearing shoulder-length hijabs on their Nurses’ uniform. In support of the originating summons are two affidavits of the claimants with accompanying exhibits and the written address. On 13th May 2014, the claimants filed a motion on notice pursuant to Order 11 Rule 1 and Order 14 Rule 2 of the National Industrial Court (NIC) Rules 2007, and section 6(6) of the 1999 Constitution, as amended, praying for the following reliefs – 1) An order of setting aside the letter of termination dated the 23rd day of April 2014 issued to the applicants by the 2nd respondent on behalf of the 6th respondent pursuant to alleged acts of misconduct by the applicants under the Public Service Rules to wit: insubordination and refusal to carry out lawful instruction from superior officers pertaining to their wearing of shoulder-length hijab on their Nurses’ uniforms, the subject matter of suit as the termination was done Pendete lite. 2) Order directing that the respondents to forthwith re¬absorb/reinstate the applicants as bona fide staff of the National Orthopaedic Hospital, Igbobi pending the determination of this suit. 3) An Order directing the respondents to forthwith permit the applicants to re-commence their lawful duties as Nurses engaged in the employment of the National Orhopaedic Hospital, Igbobi, Lagos pending determination of this suit. 4) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case. The grounds upon which the application is based are – (a) The letters terminating the employment of the respective applicants were issued by the respondents after the service of the originating summons and motion on notice for injunction on the respondents. (b) Every party to a suit has a duty not to take any step that would render nugatory the suit once served with the originating processes. (c) Every Court of record has coercive powers and duty to preserve the sanctity and integrity of Courts. (d) It is in the interest of justice to grant the application. In support of the application are two affidavits (each of 37 paragraphs) deposed to by the first and second applicants respectively with accompanying exhibits together with a written address. In reaction, the 6th defendant filed two counter-affidavits of 34 paragraphs each, both deposed to by Nelson Olabode, a litigation clerk in the law firm of Taiwo Ajala, against the 1st and 2nd applicants’ motion on notice. Attached and accompanying to the counter-affidavit are supporting exhibits as well as a written address. The claimants/applicants framed only one issue for the determination of the Court, namely: whether in the circumstances of this case, the applicants are entitled to the grant of reliefs so claimed against the respondents on the motion paper. To the claimants, they had filed an originating summons seeking an interpretation of the respective provisions of the Nursing and Midwifery Council (Registration etc.) Act Cap. N143 LFN 2004 as well as powers under the Orthopaedic Hospitals Management Board Act Cap. O10 LFN 2004 regarding which body possesses the powers to prescribe a dress code for Nurses working in Federal Government or State owned hospitals such as the National Orthopaedic Hospital, Igbobi, Lagos. I must state here that while the originating summons actually sought for the interpretation of the Nursing and Midwifery Council (Registration etc.) Act Cap. N143 LFN 2004, nowhere in it was the Orthopaedic Hospitals Management Board Act Cap. O10 LFN 2004 cited for interpretation as currently indicated by the applicants. The claimants/applicants had alongside the originating summons equally filed a motion on notice also dated and filed on 14th April 2014 seeking the following injunctive reliefs namely – (i) An order of interlocutory injunction restraining the respondents by themselves or acting through their agents, servants, proxies or howsoever arising from setting up, convening and/or enabling any disciplinary committee to try, question, investigate or in any way harass the applicants on any issue concerning or pertaining to, emanating from or touching on their wearing of shoulder-length hijab on their Nurses’ uniforms, the subject matter of this suit, pending the hearing and determination of the substantive suit. (ii) Where such a disciplinary committee has already been set up, convened and enabled by the respondents, an order of interlocutory injunction restraining such committee from sitting on, meeting and deliberating over, compelling the appearance of the applicants on any issue concerning or pertaining to, emanating from or touching on their wearing of shoulder-length hijab on their Nurses’ uniforms, the subject matter of this suit, pending the hearing and determination of the substantive suit. (iii) Where such a committee has sat on, met and deliberated over any issue concerning or pertaining to, touching on or emanating from the wearing of shoulder-length hijab by the applicants on their Nurses’ uniforms, an order of interlocutory injunction restraining the respondents from acting or taking any decision on the outcome of the sitting of the committee and/or sanctioning the applicants in any way on the issue pending the hearing and determination of the substantive suit. (iv) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case. It is while these processes were still pending that the 6th respondent proceeded to terminate the appointments of the applicants, hence the present application to reverse the said termination. To the claimants, the Court of Appeal has held in Enunwa v. Obiamukor [2005] 1 NWLR (Pt. 935) 100 at 119 E to F that – An interlocutory injunction is preservatory measure taken at an early state in the proceedings before the court has an opportunity to hear and weigh fully the evidence on both sides and it is intended to preserve matters. It is an injunction which is directed to ensure that particular acts do not take place pending the final determination by the courts of the parties. That an application for interlocutory injunction is granted at the discretion of the court and is exercised judicially and judiciously after considering some factors. The applicants in paragraphs 18 and 19 of their respective affidavits in support of this application deposed to the fact that all the respondents in this suit were served on the 14th of April 2014 with the aforesaid originating processes as well as a motion on notice for interlocutory injunction. Exhibits FOL8 to FOL13 and Exhibits SS7 to SS12 are the proof of service of the said processes on all the respondents. By paragraph 20 of the two affidavits in support of this application, the applicants showed that their solicitor also wrote to the respondents (Exhibits FOL14 to FOL16 and Exhibits SS13 to SS15) intimating them of the need to preserve the status quo between the parties and stated the consequence of the respondents taking any further step(s) which may prejudice the matter submitted by the applicants to the Court in the motion for interlocutory injunction. That the applicants also deposed in their paragraphs 26 to the fact that consequent upon the continued harassment and intimidation meted out to the applicants by the respondents by preventing the applicants from carrying out their lawful duties as nurses and branding them as undesirable elements in the full glare of other staff of the hospital community, their counsel prepared and delivered a letter dated 17th April 2014 to the first respondent with copies served on the 2nd to 6th respondents reminding them of the consequences of their unwarranted actions against the applicants, referring the Court to Exhibits SS18 to SS19 and Exhibits LL19 to LL20 in support of this application. However, that notwithstanding the service of the processes on all the respondents, the respondents still went ahead to convene a disciplinary committee on 2nd April 2014 where the applicants were intimidated, harassed and subsequently terminated the applicant’s employment. To the applicants, it is an established legal principle that where a party to a suit is put on notice of a motion seeking for an injunctive relief, that party is under an obligation to, notwithstanding that the motion has not been heard or any order made by the Court, to stay action, and the Courts are obliged to return matters to status quo ante bellum, meaning the position things were before commencement of hostilities. That the Courts have held that a party is in open defiance of the magisterium of the Court and his actions amount to contempt of Court where he fails to refrain from doing or continues to do the action sought to be restrained by the application pending before the Court and he is amenable to the disciplinary powers of the Court and liable to a term of imprisonment. That this point was made by the Supreme Court in First African Trust Bank v. Ezegbu [1993] 6 NWLR (Pt. 297) 1 thus – No court or tribunal worth its salt will allow a party to get away with impunity with an act that is clearly intended to pre-empt the decision of the court on a matter thereby rendering the court impotent in that matter. In the instant case, the conduct of the appellants in holding the Bank’s General Meeting on 9th November, 1991 when they were fully aware of the motion to be heard on 11th November, 1991 staying the court’s order authorizing that meeting to be held was clearly reprehensible. This is because it was calculated to foist on the court a fait accompli which would have rendered nugatory any decision in their favour the respondents would have had upon the determination of their appeal in a manner which would have ensured that the respondents, in pursuing their appeal would have engaged in an exercise in futility, since the character of the plaintiff Bank would have been altered in the circumstances. The Court of Appeal in the instant case acted properly and honourably by not shirking its duty to exercise its disciplinary power and stop the appellants in their track. The claimants went on that it is noteworthy to commend to the Court the case of Governor of Lagos State v. Ojukwu [1996] 1 NWLR (Pt. 18) at page 636 whereat it was stated that – After the defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction is not granted, he acts at his peril and subject to the power of the court to restore the status whole in respective of the merits as may be ultimately decided. It is, therefore, the submission of the claimants that the action of the respondents in proceeding to terminate the employment of the applicants was done in bad faith and in open defiance of this Court whose jurisdiction has been invoked. It is the applicants’ contention that the only conclusion which this Court can draw from the respondents’ action is that in the minds of the respondents “we are not subject to the Court’s authority and we reserve the right to treat it’s (the Court’s) processes as we deem fit”. The applicants then urged the Court to hold that the respondents have no right to take the matter into their own hands or take any step(s) once the Court was seized of the matter. That the essence of rule of law is that parties to a suit should never take matters into their hands or operate under the rule of force. The applicants also urged the Court to hold that taking any step or acting in a manner that renders nugatory any process pending before the Court is highly contemptuous of the Court’s status and is deserving of stiff punishment to deter further abuse of the Court’s processes. That the Supreme Court of Nigeria held in AG, Ekiti State & ors v. Daramola & ors [2003] FWLR (Pt. 169) 1121 at 1167 that the rationale behind the Court setting aside acts such as that done by the respondents in disregard of court processes served on them and restoring the parties to the position they were before such disobedience is to ensure the enthronement of the rule of law rather than acquiesce in resort to self-help by a party. The applicants accordingly submitted that the respondents issued the said letter of termination of employment to the applicants in order to prejudice the suit filed by the applicants, foist upon the Court a situation that will overreach the applicants’ interests. In conclusion, the applicants urged the Court to hold that the applicants are entitled to the grant of an order setting aside the letter of termination issued to them by the second respondent on behalf of the sixth respondent in this suit because the same is intended to prejudice and overreach the issues which the applicants seek to determine before this Court in their substantive action. The applicants then prayed the Court to grant their prayers and immediately reinstate the applicants to their stations as bona fide staff of the National Orthopaedic Hospital, Igbobi, Lagos. In reaction, the 6th respondent framed four issues for the determination of the Court, namely – 1. Whether the appointment of the 1st and 2nd applicants is with statutory flavour or not. 2. Whether the right to freedom of thought, conscience and religion as contained in section 38 of the 1999 Constitution is an absolute right. 3. Whether an affidavit can contain extraneous matters. 4. Whether the 6th respondent can exercise the right of termination as contained in the letter of employment. Regarding issue 1, the 6th respondent narrated facts to the effect that the 1st and 2nd applicants by the letters dated 25th of November made an application to the National Orthopaedic Hospital, Igbobi, Yaba Lagos seeking for the post of Staff Nurse/Nursing Officer II; they attended the interview on the 9th of December after which the 6th respondent approved their appointment as per position sought. The first applicant having read the said letter of offer of appointment and the terms and conditions therein accepted same by her letter of acceptance dated 25th February 2014. The second applicant also received her letter of offer of appointment and having read the terms and conditions therein accepted same by her letter of acceptance dated 11th March 2014. To the respondents, a contract of employment by its terms and conditions informs the parties if it enjoys a statutory flavour or not. That it is trite that statutory flavour is not bestowed on a contract of employment merely because the employer is a creation of a statute or a governmental institution. That an in-depth perusal of the enabling statute is sacrosanct in the determination thereof, referring to NITEL v. Jattau [1996] 1 NWLR (Pt. 425) 392 at 407 and Mr. Sule Obaji v. NAMA [2013] 11 NWLR (Pt.1365) 227 at 288. That the 1st and 2nd applicants applied for the position of Nursing Officer II and were interview by the Hospital Management and offered a probationary employment as stated therein. To the respondents, by the condition set in paragraph 2 of the letter of offer of appointment, it is state thus – Your appointment will be on probation for a period of two years with effect from the date you assume duty in this Hospital. Based on reports received from your supervisors on your conduct and performance during the period of your probation, the Hospital Management may review your appointment and at its absolute discretion either: a. Confirm your Appointment b. Extend the probation by a period of not more than 2 years or c. Terminate your probationary appointment. That paragraph 5 of the same letter of offer of appointment states – If the conditions and terms are acceptable to you, you will please indicate in writing, your acceptance within 7 days from the date of this letter. To the 6th respondent, by the terms and conditions as contained in the letter of appointment and accepted by both applicants and on the authorities cited above, it is glaring that the contract of employment which exists between the 6th respondent and the 1st and 2nd applicant is purely that of a probationary nature subject to approval by the 6th respondent after 2 years if satisfied, hence it does not enjoy any statutory flavour as the conditions of service are not specifically provided for by statute or regulation. The 6th respondent continued that it is pertinent at this juncture to state that the 6th respondent is a creation of the Orthopaedic Hospitals Management Board Act and saddled with the responsibility of the management of Orthopaedic Hospitals. That the 6th respondent acted within the purview of its powers when it terminated the appointment of the 1st and 2nd applicants. The respondents then cited section 13 of the Orthopaedic Hospitals Management Board Act, whicht reads – 13(1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the Hospitals, other than Medical Directors, should be removed from his office or employment, the Board shall require the secretary to – a) give notice of those reasons to the person in question; b) afford him an opportunity of making representations in person on the matter to the Board; and c) if the person in question so request within the period of one month beginning with the date of the notice, make arrangements – i. for a committee to investigate the matter to the Board; and ii. for the person in question to be afforded an opportunity of appearing before and being heard by the investigation committee with respect to the matter, and if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board. To the 6th respondent, a careful perusal of the above-mentioned section shows that the intendment of the provision is to set out procedures for the termination of confirmed staff of the hospital. Hence the appointment of the 1st and 2nd applicants could in any case have been terminated without recourse to the procedure provided for in section 13. That the 6th respondent, however, despite not being under any obligation to follow the above procedure as regards the 1st and 2nd applicants as probationary staff, upheld the principle of natural justice, audi alterem patem, by duly inviting the 1st and 2nd applicants before an investigating/disciplinary committee in a bid to deliberate on the issue of the 1st and 2nd applicants’ non-compliance to the dress code of the hospital and persistent refusal to take lawful instructions from superior officers of the institution. Sadly, that the 1st and 2nd applicants in their usual mulish attitude to instructions dishonored authorities in all fronts giving preference to their husbands’ desires even at their place of work and their refusal to honour the invitation of the Disciplinary Committee, a body which has statutory recognition. That this and the 1st and 2nd applicants’ persistent refusal to obey lawful instructions from superior officers of the hospital is the height of insubordination, urging the Court to so hold. The 6th respondent went on that it is trite that where an employee refuses to obey a lawful order, his employer is at liberty to summarily dismiss him for disobedience and insubordination, citing DA (Nig.) AIEP Ltd v. Oluwadare [2007] 7 NWLR (Pt. 1033) 336 where the respondent refused to obey the order that he should go for the Type-rating training. The Court held that the appellant was at liberty to summarily dismiss him for the flagrant act of disobedience and insubordination and his subsequent refusal to report at the ground school. That it is clear from the above that the penalty for insubordination is summary dismissal. That it is, therefore, a great show of leniency that the appointment of the 1st and 2nd applicant has only been terminated, urging the Court to so hold. On issue 2 i.e. whether the right to freedom of thought, conscience and religion as contained in section 38 of the 1999 Constitution is an absolute right, the 6th respondent contended that the 1st and 2nd applicants accepted the terms and conditions as contained in the letter of offer of appointment by their letters of acceptance indicating same. That the applicants underwent the orientation exercise as prescribed by the 6th respondent during which the applicants received a tour of the Hospital and were shown pictorial diagrams of the dress-code of the 6th respondent. That the applicants were not forced, coerced or promised any special privileges in return for accepting their letter of appointment; they voluntarily accepted same. They could have chosen for themselves not to take up appointment with the institution but that was not their position. That it is laughable that the applicants, having been through the orientation process in the Hospital and having been shown pictures of Nurses of all cadres, aside seeing same Nurses in their uniforms, complain of their right to freedom of religion as being infringed upon. Section 38 of the 1999 Constitution provides thus – Every person shall be entitled to freedom of thought conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in a community with others, and in public or in private) manifest and propagate his religion or belief in worship, teaching, practice and observance. To the respondents, a careful perusal of the above mentioned provision of the 1999 Constitution which guarantees the right to freedom of religion is not an absolute right as the provisions of section 45 of the Constitution allows for the application of other laws reasonably justifiable in a democratic society. The provision of section 45(1) of the 1999 Constitution provides thus – Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society. That the implication of section 45 of the 1999 Constitution is that the Legislature can make a law limiting the rights specified under the stated sections on the specified grounds, provided that such law is reasonably justifiable in a democratic society thus making the rights granted in Chapter IV not in any way absolute. To the 6th respondent, before the law limiting the rights as contained in Chapter IV can be challenged it must be in force that is, it must be brought in operation, recorded in the statute books and must not have been repealed, referring to Uwaifo v. Attorney-General Bendel State [1983] NCLR 1. That the Nursing and Midwifery (Registration, etc.) Act (Subsidiary Legislation) Cap. N143 LFN 2004 is in force, it is in operation, it is recorded in the statute books and this statute regulates the Nursing Profession in Nigeria and has not been repealed. It is a law that is reasonably justifiable in a democratic society, urging the Court to so hold. Regarding issue 3 i.e. whether an affidavit can contain extraneous matters, the 6th respondent contended that by the applicants’ affidavit particularly paragraph 12, where the applicants quoted the Surah 24: An Nur verse 31 and its English translation, that it is trite law that an affidavit deposed to must contain statement of facts only and nothing else and any instance where the affidavit contains substance bothering on arguments renders that particular paragraph a nullity, referring to Inakoju v. Adeleke [2007] 4 NWLR (Pt.1025) at 506. Also cited is section 115 the Evidence Act 2011, which reads – (1) Every affidavit used in the court shall contain only statement of facts and circumstances to which the witnesses deposes, either of his own personal knowledge or from information which he believes to be true. (2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal Argument or conclusion. Based on the assertions above, the 6th respondent urged the Court to discountenance paragraph 12 of the 1st and 2nd applicants’ affidavit in support of the motion on notice. On issue 4 i.e. whether the 6th respondent can exercise the right of termination as contained in the letter of employment, the 6th respondent contended that it is trite that the basis of any contract of employment relationship is the letter of offer of appointment which often sets out the conditions of service of such employee. That in this instance, for the employer to be able to terminate the employment of the employee lawfully the Court ought to determine whether the employment is statutorily flavored or not, referring to the already cited Obaje v. NAMA [2013] (Pt. 1365) 11 NWLR 227, and IHABUHMB v. Anyip 12 NWLR (Pt. 1260) – the page is not supplied. That it is unequivocally stated in the letter of offer of appointment issued by the 6th respondent to the 1st and 2nd applicants thus – Where it is decided to terminate your appointment, you will be given one month salary in lieu of notice. You are also at liberty to determine this appointment by giving to the Hospital Management three months’ notice in writing or one month’s salary in lieu of notice. To the 6th respondent, it is ascertainable from the above paragraph in the letter of offer of appointment that the appointments of the applicants are not yet statutorily flavored notwithstanding the 6th respondent being a creation of the statute. That from the above it is a clear indication that where the decision of the 6th respondent is to terminate the appointment of the 1st and 2nd applicants, one month salary in lieu of notice shall be sufficient discharge. That it is, however, surprising that the 1st and 2nd applicants who had the choice of rejecting the offer with its terms as contained therein chose to accept same and be bound by same are now seen to be challenging their termination when it is clearly stated that either party can terminate the appointment at will. The 6th respondent continued that considering the letter of offer of appointment it was clearly spelt out that the applicants’ appointment is subject to 2 years of probation after which the said appointment would be confirmed or otherwise. That the foregoing position is adumbrated in the case of Cement Co. Ltd v. Daniel [1991] 4 NWLR (Pt. 188) 750 thus – In the same manner, a staff can determine his contract of employment by simply giving one month notice or paying a month’s salary in lieu of notice. He, like his master, is under no obligation to state any reason for wishing to terminate the contract. So long as the termination is lawful, the motive therefore is not relevant. The party seeking to determine the contract by giving adequate notice as prescribed under the contract does not have to justify his action because he is not guilty of breach of contract. The 6th respondent also referred to Dudusola v. NG Co. Ltd [2013] 10 NWLR (Pt. 1363) 423 at 426. On Principles guiding determination of contract of master and servant, the 6the respondent submitted that where parties to a contract mutually agree that the condition of termination is the giving or payment of equivalent salary in lieu of notice, the only valid way to discharge a party from his obligations under the notice stipulated is the payment of the equivalent salary period of the notice. That in the instant case, in Exhibit A, the applicants were offered one month’s salary in lieu of notice. In the absence of the conditions of service, it could be presumed that the applicants were entitled to one month’s notice or salary in lieu of notice. The appointment was therefore validly terminated. On the issue of probation, the 6th respondent submitted that it is trite that an employee under probation is an unconfirmed staff of an organization. Hence he cannot be regarded as a permanent or pensionable staff. That it is, however, settled that the 1st and 2nd applicants are probationary staff. Therefore the appointment of the 1st and 2nd applicants can be determined by the 6th respondent at any point during the duration of their probationary period. That the 6th respondent, therefore, acted within the purview of its powers in terminating the appointment of the applicants, referring to Chukwu v. NITEL [1996] 2 NWLR (Pt. 430) 290 at 303 where it was held thus – It is trite law, that where servants as in the instant case are under probation and not yet confirmed staff, the employer or master can summarily dismiss the servants for gross misconduct or no reason at all before the end of the probation and as in the instant case by payment of one month’s salary in lieu of notice. Also cited are Obo v. Comm. of Educ. Bendel State Suit No. SC.181/93; [2001] 2 NWLR (Pt. 698) 625 at 637 and Dudusola v. NG Co. Ltd [2013] 10 NWLR (Pt. 1363) 423 at 426. On the right of an employer to terminate an employee’s employment, the 6th respondent contended that the master has unfettered right and liberty to terminate his servant’s employment or dismiss his servant from employment at any time and for any reason or no reason at all, provided the terms of the contract of service between them are complied with. That the motive which led the employer to lawfully terminate his servant’s employment is not normally a relevant factor and the Court will have no business with such motive, but will only give effect to the contract of service between the parties. And a willing servant cannot be imposed on an unwilling master. To the 6th respondent, the liberty to terminate the appointment was open to both the 1st and 2nd applicants on the one hand and the 6th respondent on the other by the wordings of the letter of appointment. Hence if the 1st and 2nd applicants had determined the appointment by giving the requisite notice then the 6th respondent would have no choice but to let them go no matter how unwilling the 6th respondent might be. That the question one bears in mind against this backdrop is that will it be fair considering the afore-stated to foist the 1st and 2nd applicants on the 6th respondent? The 6th respondent then referred to Oyedele v. LUTH Suit No. CA/I/191/881; [1990] 6 NWLR (Pt. 155) 194 at 199 and Mr. Sule Obaji v. NAMA [2013] 11 NWLR (Pt. 1365) 227 at 290. The 6th respondent went on that it is undiluted fact that standards, rules, regulations and codes are put in place in any institution for maintenance of law and order and these rules are not to be jettisoned to avoid a chaotic situation. That an employee of an institution shall abide by the rules of that institution irrespective of his age, colour, gender or religion. To turn a blind eye to the 1st and 2nd applicants’ persistent breach of the rules of the hospital is an invitation to anarchy, urging the Court to so hold. On the issue of defiance to the magisterium of this Court, the 6th respondent contended that paragraph 17 of the 1st and 2nd applicants’ affidavit clearly shows that a disciplinary committee was formed to look into the 1st and 2nd applicants’ refusal to conform to the hospitals dress code and persistent disobedience of authority before this action was commenced. That it was in a bid to forestall the activities and findings of the committee that the applicants commenced this action. Hence, contrary to what the applicants would have the Court believe, the 6th respondent did not pre-empt the decision this Court as the report of the committee as regards the termination of the 1st and 2nd applicants was already in place before the commencement of this action. It goes without saying that the 1st and 2nd applicants pre-empted the decision of the 6th respondent based on the report of the committee and brought this action to frustrate the powers embedded in the 6th respondent by the Orthopaedic Hospitals Management Board Act, urging the Court to disallow such gimmicks. In conclusion, the 6th respondent submitted that considering the foregoing arguments as it canvassed and on all the cited authorities, it is urging the Court to dismiss the 1st and 2nd applicants’ argument as they have failed immeasurably to substantiate their claims as contained in their motion on notice and that this whole exercise has been commenced from start to finish on an employment which they willingly subscribed to bearing in mind that they were duty bound by the terms and conditions contained therein. The 6th respondent then urged the Court to dismiss the claims of the 1st and 2nd applicants as they are completely frivolous and utterly unmeritorious. The claimants/applicants did not file any reply on points of law. However, in adopting their written submissions, counsel to the applicants referred the Court to the additional case law authority of Anyaoha v. Obioha [2014] 6 NWLR (Pt.1404) 445 CA at 481 – 482 E – B in support of their submissions. I heard learned counsel and considered all the processes in this suit. In considering the merit of the issue at hand, I need to resolve the issue of paragraph 12 of the applicants’ respective affidavits in support. The 6th respondent had made an issue regarding the said paragraph 12 of the applicants’ affidavits in support, where the applicants referred to Surah 24: An Nur verse 31 and quoted its English translation. The 6th respondent argued that the deposition here is offensive to section 115 of the Evidence Act 2011 which inter alia provides that an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. I agree with the 6th respondent in that respect. In fact both paragraphs 12 and 13 of the applicants’ affidavits, in referring to Surah 24: An Nur verse 31 and the Constitution as respectively entrenching the manner of dressing of believing Muslim women and the right to freedom of religion including the freedom to manifest and propagate religious teaching, practice and observance in private, public and at work and so the wearing of shoulder-length hijab was in consonance with this right, are legal arguments and conclusions. They accordingly offend section 115 of the Evidence Act 2011; and I so find and hold. The test, however, laid down in AG, Adamawa State & ors v. AG, Federation & ors [2005] 18 NWLR (Pt. 958) 581 at 625 and 657 – 658 is to the effect that where depositions in an affidavit offend the basic law, the offending paragraphs of such an affidavit must be struck out. And in Mahmoud Bello & ors v. Nigeria Customs Service Board unreported Suit No. NICN/LA/664/2013 the ruling of which was delivered on September 25, 2014 this Court struck out five paragraphs of the defendant’s counter-affidavit on the ground that they were offensive to section 115(2) of the Evidence Act 2011. In like manner paragraph 12 of the applicants’ respective affidavits in support is accordingly struck out. The case of the claimants/applicants is that while they filed this suit, the 6th respondent in pure disregard of the pending suit went on to terminate their respective contracts of employment, even when the issues calling for the determination of the Court preclude such an act. Unfortunately, instead of answering this issue, the 6th respondent went on a frolic in either discussing issues that were not relevant to what is presently before the Court or delving into the substantive case. The argument of the respondents that it has right to terminate the employment of the claimants for insubordination even when the issues yielding to the charge of insubordination are actually one and the same with the issues that brought the claimants to this Court in the first place are uncalled for as far as the instant application is concerned. No one is saying that the 6th respondent cannot exercise its power of termination under its enabling Act. The question is whether the 6th respondent can do that in total disregard to this Court when an issue on it is before this Court for adjudication. This is the point that counsel to the 6th respondent missed in all their submissions. The 6th respondent would even brag that instead of summarily terminating the employment of the claimants, it insisted on following due process as enjoined in its enabling Act. In fact all the case law authorities cited by the 6th respondent on its right to terminate the employment of the claimants/applicants are completely irrelevant to the issue at hand. In none of them was the issue whether the termination of employment was valid having been done when that same issue of termination was pending for determination in the Court. Curiously, if the 6th respondent can be reckless in disregarding the sanctity of this Court, it is ironic that it is complaining of insubordination by the claimants. The Supreme Court in Hon. Chigozie Eze & 147 ors v. Governor of Abia State & 2 ors unreported Suit No. SC.209/2010 the judgment of which was delivered on 11th July 2014 (Hon. Justice Rhodes-Vivour, JSC delivering the lead judgment) had cautioned that all Courts are courts of Law and Equity, and equity demands that the executive should not be allowed to get away with a wrongful act or impunity. In seeking to justify the termination of the employment of the claimants/applicants as the 6th respondent did in its written address, the 6th respondent was unwittingly acknowledging that it has the right to do that despite the pendency of this suit. This is the height of impunity and disregard for this Court; and this Court will not condone it. The further submissions of the 6th respondent as to whether the right to freedom of thought, conscience and religion as contained in section 38 of the 1999 Constitution is an absolute right is most uncalled for, for purposes of the instant application. That is an issue reserved for the substantive case. I shall not accordingly dignify the 6th respondent with any response since the counsel to the 6th respondents does not appear to appreciate the difference between an interlocutory issue and a substantive one. If the 6th respondent feels strongly about it submissions in that regard, the appropriate place to advance them is when the substantive issues are being considered. The 6th respondent had acknowledged that the applicants were duly invited before an investigating/disciplinary committee in a bid to deliberate on the issue of the 1st and 2nd applicants’ non-compliance to the dress code of the hospital and persistent refusal to take lawful instructions from superior officers of the institution. To explain this, and this is the only instance of an attempt at addressing the issue at hand, the 6th respondent, at the tail end of its written address, made the submission that paragraph 17 of the applicants’ affidavits clearly shows that a disciplinary committee was formed to look into the applicants’ refusal to conform to the hospital’s dress code and persistent disobedience of authority before this action was commenced; and it was the applicants, a bid to forestall the activities and findings of the committee, who then commenced this action. That contrary to what the applicants would have the Court believe, the 6th respondent did not pre-empt the decision of this Court as the report of the committee as regards the termination of the 1st and 2nd applicants was already in place before the commencement of this action. And so it goes without saying it is the 1st and 2nd applicants who pre-empted the decision of the 6th respondent based on the report of the committee and brought this action to frustrate the powers embedded in the 6th respondent by the Orthopaedic Hospitals Management Board Act. The 6th respondent even urged the Court to disallow such gimmicks. I do not think that counsel to the 6th respondent fully appreciates the import of what he is saying. Even if the disciplinary report was ready, the claimants came to this Court before the release of the report. Does it not cross the mind of the 6th respondent and its counsel that all else must await the verdict of the Court? Does it lie with the 6th respondent to simply disregard this Court just because it has a disciplinary report that has not been released and for which in the desire to thwart it the claimants came to Court? Is the 6th respondent thereby saying that it went ahead to terminate the claimants’ appointments simply because they came to Court and so did not allow the 6th respondent the opportunity to first release the disciplinary report? The 6th respondent cannot be serious. Impunity of this sort should not be condoned by any court of law worth its name. The 6th respondent is not denying that the claimants filed this case before the termination of their employment. The 6th respondent is not contesting that the issues filed in this Court are not the issues for which it terminated the employment of the claimants. The 6th respondent is not denying that all the processes regarding this suit were not served on it before it terminated the employment of the claimants. This means that when the 6th respondent terminated the employment of the claimants, it acted in the full understanding and appreciation of the pendency of this suit and the issues calling for resolution in it. To accordingly terminate the employments of the claimants while the case is pending is to overreach not just the claimants but to place a fiat accompli on the Court. This is impunity of the highest order. The 6th respondent raised the question whether the claimants’ employment is statutory. Once again, while I do not see the relevance of this question to the issue at hand, the curious thing is the misinterpretation of the Orthopaedic Hospitals Management Board Act Cap. O10 LFN 2004 by counsel to the 6th respondent. Counsel to the 6th respondent cited section 13(1) of the Orthopaedic Hospitals Management Board Act and then submitted that the provision is meant to regulate only confirmed staff. Where counsel got this from is what I do not know because nowhere in the Orthopaedic Hospitals Management Board Act is it stated that its provision as to staff relates only to confirmed staff. If counsel had read the Orthopaedic Hospitals Management Board Act properly, he would have seen that section 13 is more elaborate than the subsection (1) that he relied on; and section 14 proceeds to regulate the discipline of junior staff. Section 13 itself deals with removal and discipline of the clinical, administrative and technical staff. The claimants, according to the 6th respondent itself, were employed to the position of Nursing Officer II. As staff on the position of Nursing Officer II, is counsel to the 6th respondent saying that the claimants do not come within the category of “clinical, administrative and technical staff”? The Supreme Court in its recent decision in PHCN v. Offoelo [2013] 16 WRN 28 was quite emphatic that for an employment to be statutory, there must be a nexus between the employee’s appointment with the statute creating the employer or corporation. To illustrate the kind of nexus required before an employment is branded statutory, the Supreme Court found that a finding of the trial court which was not disputed is that the respondent was employed by the appellant since 1966 and that the conditions of his contract of employment are contained in the “Conditions of Service of Employees of National Electric Power Authority” tendered as Exhibit A. The Court held that section 4 and paragraph 9 of the Schedule to the NEPA Act are the connection and authority, which empowers the appellant to make Exhibit A (conditions of the employment of the appellant’s staff). As such Exhibit A has the force of law as NEPA Act, which established the appellant and the appointment of staff made therein consequently attracts statutory flavour. In the instant case, section 5(3) of the Orthopaedic Hospitals Management Board Act provides that subject to the Act, the Board shall have power to appoint such other employees of the Board as it may determine; and to pay its employees such remuneration and allowances as the Board may with the approval of the Minister determine. In section 8(2), the Act grants to the Board the power of promotion, advancement, discipline and the determination of appointment of members of the staff of the hospitals. The Act then goes on in sections 13 and 14 to make elaborate provisions as to removal and discipline of staff. With all of this, if counsel to the 6th respondent still thinks that the claimants are not statutory employees, I wonder where he is coming from. In any event, FMC, Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) 411 CA held that where an employee’s appointment is under the statute and not under a common law contract of master and servant, the employee’s appointment even though on probation cannot be terminated without fair hearing. The employers are expected to comply with the procedure for termination as provided by the Public Service Rules. In other words, contrary to the thinking of counsel to the 6th respondent, the fact of probation for a statutory employee, does not take away his rights as a statutory employee. On the whole, and for the reasons given, I find and hold that the claimants’ application has merit. In that regard I make the following orders – 1. The letter of termination dated the 23rd day of April 2014 issued to the applicants by the 2nd respondent on behalf of the 6th respondent is hereby set aside. 2. Pending the determination of the substantive suit, the claimants/applicants remain bona fide staff of the National Orthopaedic Hospital, Igbobi. 3. Cost of this suit is put at Fifty Thousand Naira (N50,000) only payable by the 6th respondent to the claimants/applicants. 4. Meanwhile, hearing of the substantive matter shall proceed accordingly. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD