22nd September, 2011
Â Mrs. Rose E. Efuribe Vs Dr. G.M. Ugbam, Mr. J.O. Amaizu, Chief Ayodele Arogbodo and Federal Ministry of Health, Abuja
Court: Court of Appeal, Owerri Division, 2006
Judges: Abubakar Abdul-Kadir Jega (JCA), Helen Moronkeji Ogunwumiju (JCA) and Mojeed Adekunle Owoade (JCA)
Facts of the case
The appellant was a senior public servant employed by the Federal Ministry of Health. Following her transfer from the University of Nigeria Teaching Hospital, Enugu, to the Federal Medical Centre, Umuahia, she occupied the position of Chief Personnel Officer and at all material times, was the Head of Administration/Secretary to the Board of Management of the hospital.
In the action instituted by the appellant against the respondents, she averred that the first to third respondents had no power under the Public Service Rules to discipline her as they were not the Federal Public Service Commission or minister in charge of the Federal Ministry of Health.
She averred further that she never committed any misconduct or disciplinary offence known to the rules nor was she ever accused of any such offences by first to third respondents or the Public Service Commission.
It was the case of the appellant that contrary to the rules of natural justice and fair hearing and without any authority from the Federal Public Service Commission or the Minister of Health, the first to third respondents without jurisdiction or competence purported to try the appellant for non-existence offences without giving her unbiased opportunity to defend herself, being the accusers, prosecutors and the judges in their own case and without complying with conditions precedent to such disciplinary measures under the Public Service Rules and by such unlawful, illegal and unconstitutional means.
It was by this alleged unconstitutional means, that the first to third respondents purportedly compulsorily and arbitrarily retired the appellant prematurely from the service vide a letter dated 9 December, 2002.
After hearing the matter, the trial court made findings to the effect that the appellant was a public officer whose employment was regulated by the public officers whose employment was regulated by the Public Service Rules and enjoyed statutory favour which deprived the first to third respondents authority to retire her.
However, the court proceeded to dismiss the appellantâ€™s suit for failure to exhibit her letter of appointment. Aggrieved, the appellant approached to the Court of Appeal.
Issue of Determination
Whether, having regard to the averment of the appellant in her statement and affidavit in support of the application as to the terms and conditions of her employment, the admissions of the respondents and findings of court to those effect, the trial court was right in holding that the failure to tender and exhibit her letter of appointment in the circumstance was fatal to the appellant’s case.
Held unanimously allowing the appeal
On whether tendering of letter of employment is mandatory in all cases alleging wrongful termination of employment, the Appeal Court held: â€œGenerally, the letter of employment must be resorted to in considering the rights and obligations of the parties. It is the letter of employment that provides the terms and conditions of appointment which are averred in the statement of claim. An admission of the existence of a contract of service does not obviate the need to tender the letter of employment. Where the plaintiff fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. However, where the plaintiff pleads the existence of the contract of employment and the opposing party admits the existence of the contract of service and the condition of service as put in evidence, the rigid rale that a party must plead and prove the fact of his employment in a contract of service would not be adhered to and where a party pleads the existence of contract of employment and the other admitted same, there will be no need to call evidence to prove what have been admitted.
Thus, it is not all cases that it is obligatory that a plaintiff in an action on termination of appointment must tender his letter of appointment. In the instant case, it was beyond dispute that the appellant through her statement and affidavit evidence and also exhibit D 1, the letter of transfer of service, pleaded and proved that her employment with the respondents was regulated by the Federal Pubic Service Rules.
The Supreme Court’s decision in Morohunfola V Kwara State College of Technology, (1990) 4 NWLR Cpt. 14S) S06 did not lay down a general rule that the inability of a plaintiff to plead or tender his letter of employment automatically leads to the dismissal of his case.
The case was decided on its peculiar facts and the decision was based on the insufficiency of pleading to sustain the claims of the plaintiff/appellant.