The Illegality Of the Dismissal And Eviction Of Striking Doctors

Posted: May 14, 2012 in Uncategorized

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By Femi Falana
Doctors in the Lagos State public service recently embarked on an industrial action to press home  demands for improved conditions of service.  As there was stalemate in the negotiations the striking doctors sued the Lagos State Government at the National Industrial Court.

The suit was filed on behalf of the doctors by their Counsel, Mr Bamidele Aturu. Upon the service of the court processes on the Lagos State Attorney-General and Commissioner for Justice the Government proceeded to dismiss the 788 doctors including professors and consultants at the Lagos State  University College of Medicine. The subversion of the rule of law did not end with the  said dismissal as the  doctors have since been ordered to vacate their official quarters “with immediate effect” or face eviction.

It would be recalled that when the doctors went on strike last year i led some civil society organizations to intervene in the matter. Our appeals to both sides to save the lives of poor Lagosians who patronize public medical centres and the interventions of other well meaning organizations and individuals led to the suspension of the strike.

Two years ago, I had worked with Dr. Dipo Fasina, former National President of the Academic Staff  Union of Universities(ASUU) in resolving the last strike by the LASU branch of ASUU. In both instances and similar other cases never hesitated to draw the attention of striking workers and the Government to the provisions of the Labour Act, Trade Dispute Act and the Constitution. Last Sunday we held a meeting of leaders of the  human rights community  on the strike. After the meeting we set the engine in motion to meet the representatives of the doctors and the Government.

We were however taken aback when it was announced that the doctors had been sacked by the Government. In the circumstances I had no other alternative than to join issues with the Government on the legal implications of the dismissal and ejection of the doctors from their official quarters. I hereby wish to comment on the two issues seriatim:

(1) Illegal Dismissal of Doctors.

It is not in dispute that the power to “hire and fire”  staff  is vested in employers of labour. But workers who embark on strike cannot, ipso facto, be fired by the  management without recourse to the provisions of the Trade.  Dispute Act. In this case, the doctors have approached the NIC to resolve the trade dispute pursuant to the provisions of Section 251 of the amended Constitution of the  Republic. Once the court processes were served on the Lagos State Government it ought to have allowed the legal process  to run its full course. But b engaging in self help the  Lagos State Government decided the court process with contempt  and thereby sabotage the rule of law.  Even under a military dictatorship the Supreme Court had cause to warn the Lagos state Government to desist from taking any action that was capable of presenting  the court with a fait accompli. See The Military Governor of Lagos State v Chief Emeka Ojukwu(1986) 2 NWLR (pt 18) 621.  As the respondent (Ojukwu) was ejected when he had already sued the Government the apex court ordered that he be restored to the disputed house before the appellant (Lagos  State Government) could be heard in the case. The order was promptly complied with.

When Justice Ayo Salami was suspended last year by President Goodluck Jonathan on the recommendation of the National Judicial Council the Federal Government was berated for taking the action when the matter was pending at the Federal High Court. It was pointedly made clear  that the  Federal Authorities had violated the principle of law enunciated in the Ojukwu’s case by resorting to self help.  Since what is good for the goose is equally good for the gander the Lagos State Government which has been in the forefront in  the campaign for the operation of the rule  of law in Nigeria should rescind the dismissal of the doctors and allow the NIC to hear and determine the case.  Since the doctors had, suo motu, invoked the jurisdiction of the NIC they would have been ordered to resume work by the  court before the commencement of the proceedings.
 

(2) Illegal Eviction of Doctors.

In an eviction notice dated 8th May, 2012 the dismissed doctors were directed to vacate their official quarters with immediate effect. It has been reported that the doctors would be forcefully ejected from the quarters if they fail to comply with the quit notice. It is embarrassing that the Lagos State Government has refused to appreciate the distinction between a contractual tenancy and statutory tenancy. It is trite law that employees who reside in official quarters by virtue of their employment are contractual tenants and remain so throughout the period of the employment. Where however, the contract is determined for any reason whatsoever the employees automatically become statutory tenants if they fail to relinquish the official residence.

The provision of the law is clear on the fundamental preconditions for taking over possession of premises  in Lagos State. Statutory notices are necessary prerequisites for the grant of possession.The Lagos State Tenancy Law, 2011 has made adequate provisions for the various notices required to be given to tenants by a landlord before applying for the recovery of premises.  Having become statutory tenants the sacked doctors are entitled to the necessary notices in compliance with the law before they can be removed from the official residence by a competent  court of law.  

In the case of African Petroleum Ltd v Owodunni (1991) 8 N.W.L.R (Pt. 209) 396 the Supreme Court held inter alia: “Sometimes a statute gives security of tenure to a tenant after his contractual tenancy has expired. Where such a statute exists, such a tenant then holds such a premises no longer as a contractual tenant, because there no longer exists a contract between him and the landlord, but he retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all the terms and conditions of the original tenancy”  See also Pan Asian African Co. Ltd v N.I.C.O.N (1982) 9 S.C 1 at 13.

In the light of the foregoing we urge the Lagos State Government to withdraw the illegal quit notices and be guided by the provisions of the Lagos State Tenancy Law 2011 if it is desirous to recover possession of the official quarters allocated to the doctors.  A government which requires citizens to comply with the law cannot afford to breach the law.

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