A National Industrial Court Of Nigeria sitting in Owerri Imo state has delivered judgement in favour of the Director Medical Services of Abia state Polytechnic Aba, Dr. Eze Nwokeocha against the management of Abia state Polytechnic Aba.

Dr. Nwokeocha who until his illegal eviction from his duty post, was the Director Medical Services of the institution had approached the court and sought that he be allowed to return to his duty post, as well as be paid all his entitlements denied him throughout the period of his forced absence.

Delivering judgement in the case presided over by His Lordship Honourable Justice I.S Galadima, the court held in part that “having found and declared that his redeployment by the Defendants was unlawful and ultra vires the enabling laws, he is the Director of Medical Services of the 1st Defendant institution de jure.Consequently, it is deemed that he remained as the Medical Director from the time this cause of action arose in 2017 to date. It is after all, the Defendants’ duty to ensure that the Claimant is kept working within a reasonable working environment which duty they so flagrantly disregarded.

Consequently also, it is only fair to pronounce that he is entitled to all his salaries, allowances, and emoluments from the date they were stopped by the Defendants till the date of this here judgment and continuously thereafter in accordance with his employment terms with the Defendants.He cannot be terminated unless and in accordance with the provisions of the Polytechnic Law and his conditions of service, and I so declare”

The court went further to order the following ” the Defendants are specifically hereby ordered to pay all his entitlements being his lawful salaries, allowances and emoluments from the date they were stopped to today within 30 days of this judgment which sum shall in default attract a 10% rate per annum until it is fully liquidated. The Defendants are also ordered to allow the Claimant immediate access to his office and to resume his normal duties as the Medical Director of the medical centreof the 1st Defendant forthwith”

Read full judgement here:

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

DATE:2nd June2020 SUIT NO: NICN/OW/45/2017

BETWEEN:

DR. EZE NWOKEOCHA OGBONNAYA CLAIMANT

AND

· ABIA STATE POLYTECHNIC

· RECTOR, ABIA STATE POLYTECHNIC DEFENDANTS

· GOVERNING COUNCIL, ABIA STATE POLYTECHNIC

REPRESENTATION:

· CHIDI AGOR; C.C. UDEMBA; E. UKAEGBUFOR THE CLAIMANT.

· E.C. IROANYA; S. UKOHA FOR THE DEFENDANTS.

JUDGMENT:

In this cause, the Claimant alleges he is a medical practitioner who was originally appointed by the Defendants as a Senior Medical Officer of its medical center in the Polytechnic sometime in 2007. The terms and conditions of his employment as contained in the appointment letter were accordingly governed by the Senior Staff Conditions of service with the 1st Defendant institution. The 1st Defendant by virtue of the same document, promoted him to the position of Director of medical services which position he accordingly enjoyed until he was wrongfully removed from his office by the 2nd Defendant without recourse to the guiding conditions of the employment relationship. The Defendant denied this and stated that the Claimant was merely posted out of the Polytechnic to the General Hospital, Abiriba by the Ministry of Health under the purported directive of the Governor of Abia State. As such, upon his refusal to abide by the directive of transfer, his salary was stopped.

1. Consequently, by a general writ of complaint filed on the 24/7/2017 the Claimant filed this action against these Defendants for the following reliefs:

a. ADeclaration of this honorable court that the purported removal of the claimant from office as a Director medical services on 16/5/2017 is illegal, wrongful, and ultra vires the terms and conditions of the Claimant’s employment as prescribed by the Abia State Polytechnic Law CAP 29 LABS 2005 and the regulations governing the conditions of service for senior staff of the 1st Defendant.

b. A Declaration that the Defendants cannot remove the Claimant from his position as Director medical services except in accordance with the provisions of Abia State Polytechnic LawCAP 29 LABS 2005 and the regulations governing the conditions of service of the 1st Defendant and the Claimant.

c. An Order of mandatory injunction compelling the Defendants, their servants, agents, or privies to restore the Claimant to his position as Director of medical services Abia State Polytechnic and to pay him all the emoluments, salaries and allowances due to him in that position from the date of his wrongful removal to the determination of this suit and thereafter till the Claimant retires from service.

d. N10,000,000 only as damages against the Defendants for the wrongful removal of the Claimant from his position.

2. The Defendants entered a conditional appearance and filed a joint statement of defense on the 18/10/2017.The Claimant filed a reply to the statement of defense on the 13/12/2017. On the 15/5/2018, the Defendants moved their notice of preliminary objection, which was however dismissed by my learned brother, Arowosegbe, J on 18/7/2018. Upon his transfer from this division, the case came up before me for trial de novo on 8/10/2018.

CLAIMANT’S CASE:

3. The Claimant testified for himself relying on his deposition of 24/7/2017 and his additional deposition of 13/12/2017.He tendered a total of 9 exhibits marked as follows:

a. EXHIBIT A – Invitation for interview dated 25/6/2007;

b. EXHIBIT B –appointment letter dated 3/10/2007;

c. EXHIBIT C –offer of appointment dated 17/8/2007;

d. EXHIBIT D – confirmation of appointment dated 16/11/2009;

e. EXHIBIT E –Upgrade letter to Principal Medical Officer dated 4/3/2008;

f. EXHIBIT F – accelerated promotion letter dated 7/6/2010;

g. EXHIBIT G – Promotion letter dated 11/9/2012;

h. EXHIBIT H – Letter of directive to handover property belonging to the 1st Defendant dated 12/5/2017;

i. EXHIBIT J –Senior Staff Conditions of Service Abia State Polytechnic.

4. The Defendants’ Counsel cross examined him on 8/10/2018 whereupon he closed his case on that same date.

DEFENDANTS’ CASE:

5. The Defendants initiallyapplied to call into evidence, the testimonies of two witnesses. DW1 is one M.M. Ndukauba, a deputy senior registrar with the 1st Defendantwho adopted his written deposition of 18/10/2017 on the 16/1/2019. He however concluded his testimony in chief on the 6/2/2019 on which date, he tendered a total of 9 unobjectionable exhibits as follows:

a. EXHIBIT D1 – Letter to the 2nd Defendant dated 27/2/2017;

b. EXHIBIT D2 –Letter addressed to the Registrar dated 7/3/2017;

c. EXHIBIT D3 – General Posting dated 16/3/2017;

d. EXHIBIT D4 – Letter to the Acting Registrar dated 5/5/2017;

e. EXHIBIT D5 – Memo from the Ag. Registrar dated 17/3/2017;

f. EXHIBIT D6 – Memo to Dr. Eze Nwokeocha dated 8/5/2017;

g. EXHIBIT D7 – Another letter addressed to the Claimant dated 12/5/2017;

h. EXHIBIT D8 – Letter from the Ministry of Justice addressed to the Ag. Registrar dated 19/6/2017;

i. EXHIBIT D9 – Dispatch Register.

6. DW 1 was duly cross examined by the Claimant’s Counsel on that same date.

7. DW 2 was unfortunately never called in as a witness and so the Defendants were foreclosed from producing him after several adjournments in that regard, on the 19/11/2019. Consequently, the case of the Defendants was forced to be closed on that same date. The parties were ordered to file their respective final written addresses which were eventually adopted on the 13/3/2020. The Defendants’ was filed on the 8/1/2020 whereas the Claimant’s was filed on the 21/1/2020. On 6/2/2020, the Defendants caused a reply to be filed against the Claimant’s final written address. Upon adoption of all these processes, the case was adjourned to today, 2/6/2020 for pronouncement of this here judgment.

8. Portions of the witnesses’ testimonies shall be relied upon in the course of making my findings.

DEFENDANTS’ FINAL ADDRESS AND SUBMISSIONS:

9. The Defendant’s Counsel summarized the facts not necessarily in contention as follows:

a. That the Abia State Polytechnic is a tertiary institution solely owned by the State of Abia in accordance with extant State Government laws which are the Abia State Polytechnic Law Cap 29 (LABS) 2005; Abia State Public Service Rules and the State Polytechnic Senior Staff Conditions of Service.

b. The Claimant was employed by the 1st Dedendant by letter dated 25/4/07 as a Senior MedicalOfficer in the Medical and Health Services Division and by 17/8/07, placed on HATISS 11.6wef1/10/07.

c. His appointment was confirmed by letter dated 16/11/09.

d. He was promoted to Director Medical Services by letter dated 11/9/12 on CONTISS 14.

e. By letter dated 27/2/17 and addressed to the Claimant, the Governor of Abia State as Visitor of the 1st Dedendant institution, directed all medical staff under the employ of the 1st Defendant, to be recalled to the State Ministry of Health for redeployment to other health facilities across the State purportedly in accordance with the Abia State Civil Service Rules.

f. By letter addressed to the Registrar of the 1st Dedendant dated 7/3/17 from the Hospital Management Board, he was informed of the withdrawal of all medical personnel within the institution including this Claimant and their immediate postings to other health services as established by their Exhibit D3.

g. By memo of 17/3/17 also addressed to the Registrar, he was directed to communicate the new deployments to the affected medical staff including the Claimant.

h. By a memo of 8/5/17, this Claimant was directed to handover all Polytechnic properties to the 1st Defendant and proceed on his deployment.

i. By letter of reminder dated 12/5/17, the Claimant was reminded of the pending directive with respect to his deployment.

j. That the Claimant along with some other affected medical personnel, petitioned the Attorney General through a solicitor and proceeded to file this action without possible recourse to amicable settlement.

k. That the Claimant in so doing, breached every internal mechanisms for dispute resolution contrary to Section 12 (13) of the Abia a State Law of 2005.

10. Learned Counsel raised 4 issues for determination asrephrased and summarized hereunder, thus:

a. Whether this Court has jurisdiction to entertain this suit?

b. Whether the Claimant being a public officer/servant, was actually removed from office and thus entitled to the reliefs claimed?

c. Whether an employee can question a lawful directive for deployment?

d. Whether this Claimant is guilty of abandonment of his otherwise lawful duties as a public servant?

11. On jurisdiction, the learned Iroanya stated that this is an all too important subject as same touches on the threshold of this Court’s power to adjudicate this cause. He invited the Court to take cognizance of the Court’s attitude to the question of jurisdiction and listed several decisions of the superior Courts to buttress his arguments.

12. Accordingly, the non joinder of the Attorney General of Abia a State or the State Government of Abia is indeed fatal to the Claimant’s case — SIFAX NIG. LTD AND OTHERS V. MIFGO NIG. LTD (citation supplied) inter alia.

13. That there are irrefutable evidences suggesting that this Claimant had gone through his union to complain about his posting to the General Hospital, Abiriba and same petition was even copied the Speaker of the State House of Assembly. Besides, there was no doubt as well that the Attorney General of the State equally received the petition which is dated 7/6/17 whereupon the AG as well as the House of Assembly invited the aggrieved personnel and the 2nd Defendant for meetings via letters dated 13/7/17 and 8/5/17 respectively.

14. Without waiting for any outcomes, this Claimant instituted this suit which is purportedly frivolous.

15. Having therefore not joined the necessary parties in this suit, this a Court is bereft of jurisdiction, argued the learned Counsel.

16. He stated the Constitutional duties of the office of the Attorney General of the State and referred to the case of AG RIVERS V. AG AKWA IBOM (citation supplied) to buttress his submission.

17. He also referred this Court to its Order 3 rules 11 and 13 as well as Order 30 rules 1 and 8 and thus enjoined this Court to find in favor of the Defendants with respect to the 1st issue for determination. He said besides, this Claimant admitted under cross examination on the 8/10/18 that he was terminated by the Defendants.

18. On issue number 2, learned Counsel argued that the 1st Defendant though a corporate entity, is owned by the State Government and its thus subject to the directives of the State Government through the Visitor who is the Governor of the State. He referred to Sections 3, 4, and 21 of the Polytechnic Law, 2005.

19. He said the term “removal” as utilized by this Claimant in his statement of facts and depositions especially paragraphs 12 and 15 respectively thereof, must not be implied or presumed but must be based on actual direct and unequivocal evidence in writing. Accordingly therefore, a transfer is not akin to removal. The Claimant never tendered any document to suggest he was removed or his employment was terminated — OLALEGE V. AFRO CONTINENTAL NIG. LTD (citation supplied).

20. Having been unable to satisfy the Court that he was removed therefore, the Claimant must be deemed to have failed to sustain his claims — ARCHIBONG V. EDAK (citation supplied). He referred to Chapters 1 and 18 of the Conditions of service.

21. According to Rule 04427 of the revised Abia State Public Service Rules 2001, this Claimant was deployed to where his services shall be required. This Claimant’s, being a public servant within the civil service of the State, conditions of service are subject to the civil service regulations. He referred to several decisions for definition of who a civil servant is like ATIYAYE V.PERM SEC MINISTRY OF LOCAL GOVERNMENT, BORNO (citation supplied) as well as Section 7 (1) of the Public Officers Decree no 10 of 1976.

22. That for this Claimant to succeed in this action, he must satisfy this Court that his employment was wrongfully terminated or that he was wrongfully dismissed and that is not the situation here — NMA V. STEPHEN ODEY (citation supplied). Also, THE VISITOR IMO STATE UNIVERSITY V OKWONKWO AND OTHERS (citation supplied).

23. Counsel enjoined this Court to consider the Claimant’s answers under cross examination in order to arrive at the conclusion that he admitted to the fact that he was never removed from his position. Accordingly, his suit is speculative and same must be dismissed forthwith.

24. With respect to issue 3, he referred to Section 7 (1) of the Public Officers’ Decree no 10 of 1976 to define who a public servant is as well as Section 91 of the Labour Actto define what a contract of employment is. He also relied on SHENA V. AFROPAK (citation supplied) for added measures to buttress his submission on this third issue raised for determination.

25. Learned Counsel reemphasized that the 1st Defendant institution is owned by the Government of Abia State. It is accordingly an agency of the State by virtue of Sections 2, 3, and 21 of the Polytechnic Law 2005. He said there is supportable evidence to suggest that the Claimant was deployed to another State government establishment.

26. That being a public servant with the State, the Claimant is accordingly bound by the Abia State Public Rules and he can be posted to wherever his services are required. He referred to Rule 04427 and quoted same as providing that “every officer shall discharge any duties assigned to him by government and accept responsibility of being stationed wherever his presence is considered to be useful”.

27. Accordingly, it is trite law that an employer can provide for any work environment for an employee as long as it is in accordance with the Claimant’s terms of employment — SHENA V. AFROPAK (Supra). It is also trite that an employee is bound to obey lawful orders or instructions — OLUBUKOLA AKINNIRANYE V STANBIC IBTC AND OTHERS (citation supplied) inter alia.

28. Having thus failed to comply with lawful directives therefore, the Claimant must be deemed to have abandoned or absconded from his duties for over two years and his acts cannot be condoned — GOVERNOR OF LAGOS STATE V. OJUKWU (citation supplied). He must not be allowed any of his reliefs therefore — AWUZIE V. GOVERNOR IMO STATE (unreported) NICN/OW/51/2017 delivered by this Court on 4/12/2019, inter alia.

29. He argued that an objection to an otherwise lawful transfer does not necessitate a legal action and where an employee is dissatisfied with his transfer or the conduct of his employer, the only remedy for him is to resign — IGWILLO V. CBN (citation supplied). He also referred to the Claimant’s letter of employment dated 17/8/07 and urged the Court to resolve issue 3 in favor of these Defendants.

30. On the last issue which is whether this Claimant is entitled to his reliefs, Defendants’ Counsel argued that the Claimant is a civil servant under an agency of the State Government of Abia. His continuous abandonment and desertion of his duties suggests he is guilty of gross misconduct. He impressed on this Court to consider the Claimant’s answers to questions thrown at him during cross examination and to examine carefully his employment letter of 17/8/07 before answering the issue raised.

31. The Claimant is accordingly not entitled to any of his reliefsand Counsel urged this Court to hold that his conduct deserves a termination. He finally urged this Court to dismiss this suit entirely.

CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:

32. The Claimant’s Counsel filed his finaladdress on 21/1/20. Within, he raised a sole issue for determination which is whether the act of the Defendant in removing the Claimant from office as Director Medical Services of the 1st Defendant was illegal, wrongful and ultra vires the regulations guiding the conditions of service of senior staff of the institution and the Abia State Polytechnic Law Cap 29 of 2005.

33. In arguing this sole issue, learned Counsel stated that some salient facts are inarguable, which are:

a. The 1st Defendant was established by law which is the Abia State Polytechnic Law Cap 29 of 2005;

b. The Claimant was employed by the 1st Defendant and subsequently promoted to a Director pursuant to Section 26 (1) (e) of that law;

c. The Claimant never received any warnings or queries throughout his employment with the 1st Defendant;

d. The Claimant was removed from office and his position filled by someone else;

e. There was no Council in place at the time of removal of the Claimant from office.

34. Accordingly, by virtue of Section 318 of the CFRN 1999, employees of the 1st Defendant institution are public servants and are therefore distinct from civil servant. Public servants enjoy their employment according to the statutory provisions or rules governing their employments and are not employed at the pleasure of the State or Federal Government. Counsel referred to OLANIYAN V. UNI LAGOS (citation supplied) where the two terms were defined by Oputa, JSC. That by Section 4 of the Polytechnic Law, the Polytechnic shall be a body corporate with perpetual succession and a common seal and shall have all such powers to sue and be sued in its name as well as to acquire moveable and immoveable properties. By Section 6 thereof, the institution shall have power to establish posts and offices within the institution and to make all such employments as it deems fit to.

35. That having employed the Claimant and even promoted him in accordance with the letters of the law, his removal can only be in accordance with the provisions of Section 12 (4) which expressly stipulates the conditions and the reasons for the removal of any employee of the 1st Defendant institution.

36. Learned Counsel believes that the Claimant was removed from his position as Director of Medical Services in violation of the said Section 12 of the law establishing it without him ever been queried for any misconduct. That it is on record that the 2nd Defendant purported to have acted under the directive of the State’s Commissioner for Health and the Governor of the State in redeploying him out of the Polytechnic to the General Hospital Abiriba which isn’t where he was employed to work. Accordingly, that posting was a subterfuge to constructively remove him from his office and employment with the Defendant. He referred to Exhibit J and D1.

37. Under Exhibit J – which is the regulations guiding Senior Staff employees of the 1st Defendant, Chapter 3, Article 19 provides that “any employee may be deployed to a relevant department of the polytechnic at any time”. However, it was accordingly incontrovertible that the Defendants purportedly posted the Claimant to a General Hospital in Abiriba which is an institution under the Ministry of Health and whose employees are civil servants of the State.

38. Counsel recapitulated the Defendants’ witness’ testimony under cross examination and stated that it was obvious from their stance that the Claimant was victimized by them and removed from office under a supposed posting. This is evident from the fact that that witness (DW1) admitted inter alia that the Claimant’s former position has been filled by one Dr. S. Nwanosike and the Claimant pushed out unfairly to accept his ill fate. That the witness failed also to even establish where the Governor as visitor, made any such directive for the transfer of the Claimant to a General Hospital.

39. That the 2nd Defendant not only failed to act within the confines of the Abia State Law 2005 to remove the Claimant from office, but he relied on extraneous materials (Exhibits D1 and D2) to remove him unfairly willfully knowing that the directive to do such was not from the Governor of the State. And that assuming the Governor actually made the directive, his removal was not in consonance with Section 12 of the Law. Besides, no such directive was made as provided for under Section 21 (1) of the said law. Counsel therefore urged this Court to resolve the issue in favour of the Claimant.

40. On the questions of jurisdiction raised by the learned Counsel for the Defendants, it was first argued that this Court had considered this question preliminarily in an earlier ruling on the 18/7/18 where specifically it held that the Claimant need not exhaust any prescribed internal or domestic dispute mechanisms for settlement before approaching this Court for redress. In any case the fact that the Claimant had written letters of intervention to the Speaker of the State House of Assembly as well as the Attorney General of the State, that will not preclude him still from instituting this action by virtue of Sections 6 (6) (b) and 254 (C) of the CFRN 1999.

41. On whether the failure to join the Attorney General of the State as a party is fatal to their cause, the learned Counsel argued that the 1st Defendant has a separate legal entity and it has been conferred with the right to sue and be sued. The 1st Defendant is accordingly not an appendage of the State Government. He referred to Sections 3, 4, 6 (a), 27, 52, and 53 of the Abia State Law and to the case of OLANIYAN V. UNI LAG.

42. Learned Counsel further submitted that these parties are bound by the Polytechnic Law which governs the employment relationship existing between them as well as the regulations guiding the conducts of senior staff of the polytechnic. As such, the reference by the Defendants to the Civil/Public Service Rules or to Section 7 (1) of the Public Officers (Special Provisions) Decree No 10 of 1976 or to Section 91 of the Labour Act, were irrelevant. He finally urged the Court to disregard the Defendants’ submissions and to uphold his in favour of granting the reliefs sought.

DEFENDANTS’REPLY ADDRESS:

43. In their reply address on points of law filed on the 6/2/2020, the Defendants stated as follows:

a. On the question whether the Defendants’ act of removing the Claimant from office was illegal or wrongful, the Defendants’ Counsel answered this in the negative. Accordingly, his posting to the General Hospital, Abiriba was in consonance with the law since the General Hospital is Government owned and the 1st Defendant is by virtue of Section 2 of the State Polytechnic law, an agency of the State Government. Counsel reemphasized his arguments in his final address on this question as can be found above.

b. On the status of the Claimant’s employment with the Defendants, Counsel reargued that he is a Public Servant as defined under the Abia State Public Service Rules (revised to 2001) and particularly under Rule 04427 as well as Section 318 of the Constitution. As such, he is bound by the Public Service rules – COMPTROLLER GUSAU V. COMPTROLLER GENERAL OF CUSTOMS AND OTHERS (citation supplied) inter alia.

c. On the question of non-issuance of any query to the Claimant, he submitted that the Defendants never averred that the Claimant committed any offence warranting any disciplinary measures as such it was pointless for the him to have brought this issue up in his final address. Parties are accordingly bound by their respective pleadings and this will show that the Claimant was only transferred not removed from his position as a punishment. That removal is not synonymous with a transfer.

d. On whether there was a Governing Council in place at the time the decision to transfer the Claimant was made, he argued that the Claimant was introducing and canvassing a fresh issue that was never raised during trial or within his pleadings. However, it must be borne in mind that the 2nd Defendant was accordingly acting under the directive of the State Government as provided under Section 318 of the Constitution. He finally urged this Court to dismiss these claims entirely.

COURT’S DECISION:

44. Having satisfactorily gone through the entire processes as well as considered the arguments made by these parties, the sole issue that requires resolution is a straightforward one which is whether from the facts and evidence presented before this Court, this Claimant was wrongfully, illegally and or constructively removed from his office as Director of Medical Services by the Defendants?

45. From the parties’ pleadings and depositions, the facts of the case are clear and simple too. According to the Claimant’s deposition from paragraph 12 (and paragraph 10 of his statement of facts), on the 28/4/17, the 2nd Defendant informed him orally that he was to be removed from his office as a Medical Director under a directive from above. Later that day, he was accordingly forcefully ejected out of his office by the 2nd Defendant in company of the Deputy Rector and the Acting Registrar. On the 16/5/17, the Claimant was accordingly served with a letter dated 12/5/17 (Exhibit H) reminding him to handover all the 1st Defendant’s properties in his possession. He said he never received any prior letters before Exhibit H. His salary was thereafter stopped by the Defendants without him knowing why.

46. In their defense, the Defendants stated that the Visitor of the 1st Defendant institution had directed through the Commissioner of Health that the Claimant should be posted to an out station. The Defendants relied on Exhibits D1 and D2 respectively which are a letter written by the Commissioner of Health and addressed to the 2nd Defendant dated 27/2/2017 titled “RE:MEDICAL PERSONNEL IN YOUR CLINIC” and another letter dated 7/3/2017 written by the Secretary Hospital Management Board (HMB) addressed to the Registrar, Abia State Polytechnic and titled “WITHDRAWAL OF MEDICAL PERSONNEL IN THE POLYTECHNIC”.

47. Curiously, the Defendants did not exhibit the said executive directive made by the State Governor as Visitor of the 1st Defendant in this regard. This is notwithstanding their averment and deposition that the “the directive of the Visitor was duly and timely communicated to the Claimant vide letter referenced ASP/R/74/II/300 and dated 17/3/2017 and served on the Claimant which he declined to acknowledge receipt of by endorsing and returning a counterpart copy. The said letter conveying the posting of the Claimant shall be relied upon at trial and the same is hereby pleaded as Exhibit E”. See paragraphs 1 (iii) of the joint Statements of Defence and 2 (iii) of the Witness’ deposition of 18/10/17.

48. Interestingly, the said Exhibit E which they rely upon seems to be the letter tendered as Exhibit D5 because it bears the same reference number as well as date averred in their pleadings which they are bound by. That Exhibit D5 is an internal memo titled “POSTING OF MEDICAL PERSONNEL WITHDRAWN FROM THE POLYTECHNIC” written by the acting Registrar one Mrs. Comfort A. Nwabughuogu and addressed to some employees including the Claimant whose name appears at the top.

49. Where is the said conveyance of the directive of the Visitor of the Abia State Polytechnic who happens to be the Governor of the State? Is it vital to have this document as evidence in order to ascertain how and when the directive for the redeployment of all the medical staff within the 1st Defendant institution was made? Is it possible to state that an Acting registrar can direct medical staff of the polytechnic to be redeployed? Or can the said acting Registrar take directives from the Chief Executive of the Abia State Hospitals Management Board directing the redeployment of the staff of the Polytechnic to other State health institutions?

50. This is how Exhibit D5 appears:

Ref: ASP/R/74/II/300 17THMARCH 2017.

POSTING OF MEDICAL PERSONNEL WITHDRAWN FROM THE POLYTECHNIC

Attached is a letter from the Chief Executive of the Abia State Hospitals Management Board posting all Medical Staff whose services have been withdrawn from the Abia State Polytechnic Aba, to various hospitals in the State.

Please go through the list, find out where you have been posted and report for duty immediately.

Please also hand over all Polytechnic properties in your possession to Registrar.

Treat as urgent.

Chief Mrs. comfort A. Nwabughuogu

Ag. Registrar.

51. Obviously, this Exhibit D5 seems to be the fulcrum upon which the defense was built and if that is so, it remains a question of law to determine the circumstances and procedure for the transfer of a senior staff such as this Claimant, either within the 1st Defendant institution, or outside, where the law so permits, and in both cases, by whom.

52. Before answering the above questions, I shall first deal with an equally important question which is what is the nature of the employment relationship between these parties? It is essential because whereas the Claimant believes that being a statutory employment, the relationship is governed only by the 2005 law establishing the 1st Defendant institution and the conditions of service for Senior staff of the Polytechnic. Whereas the Defendants animadverted that the Claimant is a civil or public servant whose employment is subject to the Public Service Rules adopted by Abia State from 2001.

53. In the case of NIGERIAN GAS CO.LTD. V. MR. G.O. DUDUSOLA(2005) 18 NWLR (Pt.957) Pg. 292, the Court of Appeal restated what is already a well known principle of law with relation to employments when it said “…there are three types of employer/employee relationships in our country with different consequences namely: – (1) Under the common law where in the absence of a written contract, each party could abrogate the contract on a wages or month’s notice, or on payment of wages for a week or month or whatever was the agreed period for payment of wages. (2) Where there is a written contract of employment between an employer and an employee. In such a case, the court has a duty to determine the rights of the parties under the written contract. (3) (i) Public Servants – their employment is provided for in a statute plus conditions and service agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Part 9) 599. (ii) Public servants in the nation’s civil service as in the case of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.” Per AMAIZU, J.C.A (P. 37, paras. A-E).

54. From this precedence, it is glaring that there are two kinds of public servants recognizable in Nigeria. The first is where the employment is provided for by statute plus conditions of service and the other is the type within the nation’s civil service. Apparently therefore, since the 1st Defendant is a creature of statute by virtue of the Abia State Polytechnic Law Cap 29 of 2005 and since the Claimant’s employment is governed by the terms and conditions of service for senior staff of that institution, it is thus safe to conclude that the relationship between these parties falls within the first category as described in the above cited authority.

55. Therefore, contrary to the arguments proffered by the learned Defendants’ Counsel, this instant employment is not subject to the civil and public service rules which he referred to tenaciously. Consequently, the Claimant’s employment can only be determined by the strict wordings of the statute creating the 1st Defendant tertiary institution and any available terms and conditions of service. I therefore discountenance his suggestion on the applicability of the Abia State Public Service Rules (revised to 2001) and particularly Rule 04427 to this instant case.

56. On the distinction between a civil service and public service, Section 318 of the CFRN 1999 defines both terms as such: “civil service of the Federation” means service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation; “civil service of the State” means service of the Government of a State in a civil capacity as staff of the office of the Governor, Deputy Governor or a ministry or department of the Government of the State assigned with the responsibility for any business of the Government of the state; whereas a public service as:”public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as: (a) Clerk or other staff of the National Assembly or of each House of the National Assembly; (b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of National Assembly; (c) member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; (d) staff of any area council; (e) staff of any statutory corporation established by an Act of the National Assembly; (f) staff of any educational institution established or financed principally by a Government of the Federation; (g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law. “public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as: (a) Clerk or other staff of the House of Assembly; (b) member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a State by this Constitution or by a Law of a House of Assembly; (c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly; (d) staff of any local government council; (e) staff of any statutory corporation established by a Law of a House of Assembly; (f) staff of any educational institution established or financed principally by a government of a State; and (g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest; “School Certificate or its equivalent” means (a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (b) education up to Secondary School Certificate level; or (c) Primary Six School Leaving Certificate or its equivalent and – (i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and (iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission, and (d) any other qualification acceptable by the Independent National Electoral Commission; (underlined for emphasis).

57. Having elaborated on the definition of what both terms are, it is obvious therefore that whereas the Claimant is a public servant by the definition under Section 318 CFRN, he is not a civil servant of the State particularly since his employment was not done under a State ministry (in this case, Ministry of Health, Abia State) but a government owned educational tertiary institution. It was important for me to clarify the confusion created by especially the learned Defendants’ Counsel when he addressed that this Claimant was for all intents and purposes, subject to the regulations governing Civil Servants in Abia State. The answer is indeed in the negative. And even as a public servant, he falls under the category in which his employment is strictly governed by the law creating his employer as well as any other conditions of service stipulated in any document as bestdescribed in the NIG. GAS CO. case above.

58. From all available and incontrovertible evidence before me including the oral testimonies and particularly Exhibits A, B, C, D, E, F, G and J, this Claimant was employed by the Abia State Polytechnic as a Senior Medical Officer in 2009 and he gradually rose to the position of a Director by 2017. According to a Exhibit C which was his offer of appointment dated 17/8/2007, his employment was specifically stated to be “governed in all respects by the Senior Staff Conditions of Service” (see paragraph two line 4 of the said Exhibit C. In effect, unless his conditions of service specify that he can be transferred or deployed to the Ministry of Health, any attempt done in that regard will not only be futile, but illegal, unlawful and ultra vires.

59. The Defendants upon whom the burden rested to prove that they had the power by virtue of the Claimant’s conditions of employment and the Polytechnic law 2005, unfortunately did not discharge such to my satisfaction. This is more-so as they did not specifically point out to the provisions of the conditions of service or the Abia State Polytechnic law which allows them to transfer or redeploy this Claimant out of the Polytechnic to another place like the General Hospital in Abiriba.

60. A cursory look at Exhibit J which is the Abia State Polytechnic Senior Staff Conditions of Service,under Article 3 (xxiv) of Chapter 1 defineda transfer as “…the permanent release of an officer from one class to another within the same service or between scheduled services” (underlined for emphasis only).Chapter 3, Article 19provides that “any employee may be deployed to a relevant department of the polytechnic at any time”.Interestingly, the said Exhibit J does not even provide anywhere the manner in which a senior staff of the 1st Defendant can be transferred or redeployed to perform the same service for which he was originally employed elsewhere.

61. In HAMZA DALHATU V. ATTORNEY GENERAL KATSINA STATE AND OTHERS (2007) LPELR-8460(CA), the Court of Appeal considered a circumstance in which the appellant claimed the Respondent had no power to remove and redeploy him back to the mainstream civil service of the State having been seconded to handle the position of Clerk of the State House of Assembly for many years. The Court of appeal had cause to determine the suit and dismissed his appeal. In defining certain legal principles, the learned justices held inter alia as follows:“TRANSFER is the permanent release of an officer from one service to another or from one class to another within the same service. SECONDMENT means the temporary release of an officer to the service of another Government or Body for a specified period.” Per ARIWOOLA, J.C.A. (as he was then) (P.34, paras. A-B).Redeployment contextually means the assignment of employees to a new place or task.

62. Now reverting back to the questions asked in paragraph 49 above which are where is the said conveyance of the directive of the Visitor of the Abia State Polytechnic who happens to be the Governor of the State? Is it vital to have this document as evidence in order to ascertain how and when the directive for the redeployment of all the medical staff within the 1st Defendant institution was made? Is it possible for an Acting registrar to direct medical staff of the polytechnic to be redeployed? Or can the said acting Registrar take directives from the Chief Executive of the Abia State Hospitals Management Board directing the redeployment of the staff of the Polytechnic to other State health institutions?

63. I am inclined to answer them as follows:

a. I do not find throughout the entire length and breadth of this suit any directive conveying the Governor’s instruction to redeploy the Claimant from the 1st Defendant institution to another essential institution where his services will be most needed.

b. It is indeed vital to produce such documentary evidence to at least support the Defendants’ defense that they were clearly acting under the instructions of the Visitor to have this Claimant redeployed.

c. An acting Registrar lacks the power to independently direct a senior staff officer of the 1st Defendant to be redeployed to a ministry within the State of Abia without the approval of the Governing Council of the Polytechnic or by their direction.

d. An acting Registrar does not take instructions from the Secretary of the Hospital Management Board and can therefore not carry out any directives given by the former. Likewise, the commissioner of health of the State cannot direct the recall of medical staff within the Abia State Polytechnic for the purpose of their redeployment to other health facilities as was purportedly done by letter of 27/2/2017.

64. It is therefore my candid belief that the Defendants failed to defend their claim that the Claimant was validly transferred, or redeployed, or posted to the General Hospital, Abiriba pursuant to the guiding provisions of his conditions and terms of employment and the Abia State Law, 2005.As already found, the Claimant was not employed as a civil servant under the State’s Ministry of Health but as a medical officer of the Abia State Polytechnic. Only an officer of the State’s Ministry of Health maybe redeployed to the General Hospital in Abiriba which this Claimant is not.Consequently, I hereby quash those illegal directives made vide Exhibits D1, D2, D3, and D5 for being unlawful,untoward,and contrary to the provisions of the Abia State Polytechnic Law, Cap 29 of 2005 and the conditions of service for senior staff of the State’s Polytechnic (Exhibit J) forthwith.

65. This brings me to determine the question of the purported removal from office as alleged by the Claimant. According to the evidence he presented, the Defendants forcefully ejectedhim out of his office on 28/4/17and his salary was stopped from that moment for refusing to proceed on illegal transfer. The Defendants’ Counsel argued that this is not the case since the Claimant has not produced any evidence suggesting that his employment was terminated. That in fact, he absconded from work having refused to resume at his new posting at the General Hospital, Abiriba.

66. I already determined that the alleged posting, transfer or deployment was indeed unlawful. Nevertheless, for this Court to hold that the Claimant was indeed removed from office by the Defendants will depend on the evidence before me. The act of removal from office is a fact. And whether or not the Claimant was removed from office is an assertion that the Claimant must prove or establish by documentary evidence and in his deposition. The word removal is “the transfer or moving of a person or thing from one location, position, or residence to another”- See the case of DALHATU V. ATTORNEY GENERAL, KATSINA (supra).

67. Reasonably, having been forced to leave the office and his salary stopped, it will not be presumptuous for any Court to concludethat the Defendants did in fact, attempt to unlawfully remove the Claimant from office. There is need for precaution here because in order for the Court to declare that the Claimant was unlawfully removed, there must at least be sufficient evidence suggesting that he was in fact and in law removed. This is not the situation here because having acted illegally in their attempt to have him redeployed to the ministry, the conclusion to draw is that he was never removed from his office and status as the Medical Director of the 1st Defendant. Which means for all intents and purposes it is unnecessary to make and grant any declaration for reinstatement. Therefore, the Claimant does not require any declarationin this regard as there was no actual removal done in the first place and he certainly does not require an order of reinstatement because he was never terminated or dismissed, constructively or otherwise by the Defendants. As such, his reliefs 1 and 3 cannot be granted as sought.

68. Instead, having found and declared that his redeployment by the Defendants was unlawful and ultra vires the enabling laws, he is theDirector of Medical Services of the 1st Defendant institution de jure.Consequently, it is deemed that he remained as the Medical Director from the time this cause of action arose in 2017 to date. It is after all, the Defendants’ duty to ensure that the Claimant is kept working within a reasonable working environment which duty they so flagrantly disregarded.

69. Consequently also, it is only fair to pronounce that he is entitled to all his salaries, allowances, and emoluments from the date they were stopped by the Defendants till the date of this here judgment and continuously thereafter in accordance with his employment terms with the Defendants.He cannot be terminated unless and in accordance with the provisions of the Polytechnic Law and his conditions of service, and I so declare.

70. The Defendants are specifically hereby ordered to pay all his entitlements being his lawful salaries, allowances and emoluments from the date they were stopped to today within 30 days of this judgment which sum shall in default attract a 10% rate per annum until it is fully liquidated. The Defendants are also ordered to allow the Claimant immediate access to his office and to resume his normal duties as the Medical Director of the medical centreof the 1st Defendant forthwith.

71. I cannot award any other damages as same was not specifically proven by the Claimant. As such, relief number 4 which is for N10,000,000 damages are also hereby refused.

72. On the question of jurisdiction raised by the learned Counsel for the Defendants, I deliberately left this lastfor consideration because same is a non-starter. I am equally aware that where the question of jurisdiction is raised, same must be addressed by the Courtimmediately as jurisdiction touches on the competence of the Court. It is undeniable that the same issue was raised in the Defendants’ preliminary objection which ruling was pronounced by my learned brother Arowosegbe, J on the 18/7/18. The Court had already determined the question whether this suit can be instituted despite not having exhausted all mandatory domestic mechanisms for settlement. I need not go into that again. As far as the issue of non-joinder of the Attorney General of Abia State is concerned, the simple answer to that is the 1st Defendant is a statutory creature with the power to sue and be sued. There is absolutely no need for the Claimant to include the Attorney General as a party in this suit. Besides, his right to institute this action cannot be taken away from him as the injury he complained about is in personam.

73. Therefore,as variously found and held above and for the avoidance of any doubt, the Claimant’s case succeeds in part only to the extent of my declaration and order made in paragraphs 67 – 71 above. Judgment is accordingly entered.

DELIVERED IN ABUJA THIS 2NDDAY OF JUNE 2020

HON. JUSTICE I.S. GALADIMA

JUDGE