CORAM

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PARTIES

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P. O. U. IYASE APPELLANTS

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UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiff/Appellant sued the Defendant/Respondent at the Edo State High Court, claiming; a declaration that the termination of the appointment of the Plaintiff by the Defendants (sic) from their employment before the retiring age of 55 years was unconstitutional, null and void; a declaration that the Plaintiff is still in the service of the Defendants (sic) and entitled to be re-instated to the position he held before the purported termination of his appointment or to any other appropriate or comparative office or post or position. The case was tried on pleadings filed and exchanged by the parties. At the trial, the Plaintiff was the only witness who testified in support of his claims. The Respondent, at the close of the Appellant’s case, did not call evidence in support of its defence. It instead rested its defence on the evidence adduced on behalf of the Appellant. Learned counsel for both parties addressed the trial Court. In a considered judgment, the learned trial judge partly gave judgment to the Appellant by holding that the termination of Appellant’s appointment by Respondent before the retiring age of 55 years was null and void, and an order of payment by the Respondent to the Appellant being his terminal benefits for his years of service but dismissed reliefs 2 and 3 which for an order for re-instatement of the Appellant. Aggrieved by that judgment, the Appellant has filed an appeal before this court

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HELD

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Appeal Dismissed

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ISSUES

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Whether the lower court was right in law in refusing to order the re-instatement and consequent payment of appellant’s benefits and all entitlements having declared the termination of his appointment wrongful, null and void.

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RATIONES DECIDENDI

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LAW OF EVIDENCE, PRACTICE AND PROCEDURE

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PLEADINGS – EFFECT OF FAILURE OF A PARTY TO CALL EVIDENCE IN SUPPORT OF THE AVERMENTS IN HIS PLEADINGS
“It is trite that the effect of failure of a party to call evidence in support of his own averments in a pleading is that such averments are abandoned. See Suara Yusuf v. Oladepo Oyetunde & Ors. (1998) 10 SCNJ at 18; (1998) 12 NWLR (Pt.579) 483 and Omoboriowo v. Ajasin (1984) 1 SCNLR 108; (1984) 1 S.C. 205. Equally complementary to this principle of law is that it is not sufficient to make allegations or averments in a pleading, as was done by the defendant/respondent in its paragraphs 4 and 5 of its Statement of Defence, credible evidence must be led in proof thereof. See National Bank of (Nig.) Ltd. v. P.B. Olatunde & Co. Nig. Ltd. (1994) 3 NWLR (Pt. 334) 512; (1994) 4 S.C.N.J. 65 at 79.”

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APPEAL, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, COURT

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ISSUE BEFORE THE COURT- CONDITION PRECEDENT FOR RAISING AN ISSUE ON APPEAL WHERE SAME WAS UNSUPPORTED WITH EVIDENCE AT THE TRIAL COURT ON APPEAL
“It is settled that where no evidence was led on an issue in the trial court, the appellant shall seek leave of the appellate court before he or she or even it can raise it on appeal. Failing the appellate court shall consider such issue incompetent and all arguments relating to it shall be discountenanced. See; Egbunike & anor. v. African Continental Bank Ltd. (supra) at page 59; Union Bank of Nig. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558 at 585; 12 S.C.N.J. 175 at 201 and Abaye v. Ike Ofile & Anor. (1986) 1 N.W.L.R. (Pt.15) 134. Since the appellant failed to seek leave of this Court before raising the fresh issues, all his arguments thereon are discountenanced.”

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LAW OF CONTRACT, LABOUR LAW

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CONTRACT OF EMPLOYMENT – WHEN IS A CONTRACT OF EMPLOYMENT SAID TO HAVE STATUTORY FLAVOUR?
“Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particularly evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure. If on the other hand, the contract of service is determinable by the agreement between the parties, such contract cannot be said to have statutory flavour.”

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LABOUR LAW, PRACTICE AND PROCEDURE

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REMOVAL FROM OFFICE- PROCEDURE FOR THE REMOVAL OF AN OFFICER UNDER UNIVERSITY TEACHING HOSPITALS (RECONSTITUTION OF BOARDS, ETC) ACT
“Section 9 of that Decree takes care of that issue by providing for the class of officers of the respondent and the procedure to be taken before they are removed or disciplined. Section 9 of Cap 463 reads in part as follows:-
9(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 Hospital, other than the Chief Medical Director, should be removed from his officer 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 representation in person on the matter to the Board; and
(c) If the person in question so requests within a period of one month beginning with the date of the notice, make arrangements-
(i) for a Committee to investigate the matter and report on it to the Board, and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating 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 Board.”

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LABOUR LAW, LAW OF CONTRACT

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TERMINATION OF CONTRACT OF SERVICE – PRINCIPLES GUIDING THE TERMINATION OF CONTRACT OF SERVICE
“Where a contract of employment, as in this case, is in writing the parties are bound by the express terms and conditions so stipulated. Furthermore, a contract of service is determinable by the master only upon giving reasonable notice or on the notice stipulated in the contract between the parties. There is also a corresponding right for the servant to determine his services by giving notice as stipulated in the contract of service. If however, the master does not terminate the contract of service with his servant in the manner stipulated in the contract, he shall be liable in damages for breach of contract and not by re-instatement of the servant because there is no specific performance of a plain contract of service. See Olaniyan & ors. v. University of Lagos (supra) at pages 641 and 669.”

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LABOUR LAW, LAW OF CONTRACT

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CONTRACT OF SERVICE – WHETHER THE POWER TO ENTER INTO A CONTRACT OF SERVICE OR EMPLOYMENT INCLUDES THE POWER TO TERMINATE THE CONTRACT
“Although, the corresponding right of the respondent to terminate the appointment of its staff is not provided for in exhibit 3, it is trite to say that the power to enter into a contract of service or employment encompasses the power to terminate the contract. See Irem v. O.D.C. (1960) SCNLR 70; (1960) 5 F.S.C. 24 at 29.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Public Officers (Special Provisions) Act (Cap. 381) Law of the Federation 1990|University Teaching Hospitals (Reconstitution of Boards, Etc) Act, Cap 463 Laws of the Federation 1990|

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