Alhaji A.R. Animashaun V. University College Hospital (1996)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant was the plaintiff at the trial court. He served in several strata of government pensionable establishments for twenty-four years and seven months. i.e. Teaching Service, Water Corporation and Property Development Corporation, all statutory bodies of former Western Nigeria, and finally with the University Teaching Hospital, Ibadan, a Federal Government Ministry of Health parastatal for 2 years, five months and twenty seven days from where he retired on 29th day of June, 1979.
He claimed he was entitled by way of gratuity to N20,920.73 for the cumulative years of service and that the statutory bodies he served in the old Western Nigeria (and their successors, probably) sent in their contributions as follows:
(i) Federal Government on behalf of former Western Nigeria the sum of N7,845.89; and
(ii) Property Development Corporation the sum of N572.13.
To those sums, the defendant, being his last employer, was to add the sum of N2,562.41. The sums sent by the Federal Government and the Water Corporation were remitted to the defendant to add the sum of N2,562.41 (aforementioned) and pay over to the plaintiff. However, when in 1984 the defendant was to pay the plaintiff this gratuity, the sum of N12,227.41 was deducted. In an earlier letter of 7th June, 1979, the plaintiff (appellant) was told by the defendant that this sum would be deducted from his retirement entitlements as surcharge for an alleged act of gross inefficiency. The appellant replied to this letter denying any act of inefficiency or any wrongdoing to warrant the planned surcharge. Thus when finally the sum of N12,227.41 was deducted from his retirement benefits he sued the defendant claiming as follows:
“(i) Declaration that the defendant wrongfully and unlawfully deducted the sum of N12,227.41 (Twelve thousand two hundred and twenty seven naira, forty-one kobo) from the lawful retirement benefits, (Gratuity and Pension) of the plaintiff.
(ii) The sum of N12,227.41 (Twelve thousand, two hundred and twenty-seven naira forty-one kobo) from the defendant being the amount due to the plaintiff wrongfully and unlawfully deducted from the plaintiff retirement benefits by the defendant.”
The appellant was retired by a letter Exhibit 6 reading as follows:
“Dear Mr. Animashaun,
I am writing to inform you that the Board of Management has resolved that you should be retired from the service of this hospital in accordance with the Civil Service Rules, with immediate effect, for the purpose of facilitating improvements in the Service.
Details of your gratuity and other entitlements including earned and deferred vacation leave, less any indebtedness to the hospital, will be communicated to you in due course.
I am by a copy of this letter informing both the Chief Accountant and the Under Secretary (Establishment) who will take appropriate action.
You will hand over all hospital property to the Assistant Director of Administration, Mr. F.S. Onabowu immediately.”
The appellant before receiving this letter appeared before an administrative panel as a witness where he was not personally confronted with any accusation of misdeed. The Administrative Panel was not a punitive panel but a fact-finding one to make recommendations to the defendant to take further action as may be deemed necessary. Little wonder therefore when in Exhibit 5 the Panel inter alia recommended as follows:
“Some fraudulent practices were proved beyond doubts especially with regard to the supply of malted biscuits, margarine and corned beef. The Committee recommends that the fraud uncovered involved N6,916.00 should be referred to the Hospital Solicitor for legal advice. The other cases of incompetence, negligence, dereliction of duties and/or inefficiency are subject of appropriate disciplinary actions which should be instituted against the erring officers as deemed fit by the Director of Administration. (Details of the involvement of the Supplies Department Staff concerned are given as part of Appendix 6).”
Learned trial Judge found from the above report of the Panel that instead of the defendant pursuing the recommendations to prosecute or institute disciplinary actions against erring officers, it rather took the report as the final word. Thus the Panel’s recommendation was ignored. Even then, Exhibit 5 (supra) retiring the appellant never intimated he was being retired as a result of the recommendations of the Administrative fact-finding panel. The Conditions of Service of the defendant, Exhibit 10, sets out in its paragraph 5 the procedure for disciplinary action. By this booklet, a panel on disciplinary action set up must notify the officer concerned that disciplinary action was being contemplated against him, explaining to him his supposed misdeeds or shortcomings and asking him to come and defend himself. This procedure was never followed as nowhere was the appellant confronted with commission of any fraud, misdeeds or inefficiency in his official duty either verbally or in writing, in fact, the Panel was careful about its mission’s scope when it recommended in Exhibit 5, as follows:
“The Panel is convinced that losses amounting to N32,573.93 had been incurred by the Hospital between June, 1977 and September, 1978 as a result of the incompetence of members of the Supplies Department. In the circumstances, the Panel has no choice but to recommend that Chapter 15 Section 1501 of the Federal Government of Nigeria Financial Regulations 1976 should be invoked on all the officers of the Supplies Department who were involved in the purchases of the items investigated. The level of surcharge attributed to each officer may be determined by an implementation Committee which the Board may wish to set up.”
The defendant never invoked the provisions of Federal Government of Nigeria Financial Instructions, Chapter 15 paragraph 1501 as recommended. At any rate, in respect of the appellant that paragraph would not have been relevant. But the most remarkable aspect of the case for defence is that nowhere was evidence adduced as to how the sum of N12,227.41 surcharged the appellant was arrived at.
Learned trial Judge had no option on all the aforementioned circumstances of this case than to find for the plaintiff on his claim. The defendant appealed to the Court of Appeal. The appellant/defendant raised the following issues for determination in the Court of Appeal:-
(1) Can the learned trial Judge give judgment against a non-juristic person known to the law
(2) Was the learned trial Judge right in holding that the defendant could not with-hold gratuity of the Plaintiff for a debt due to the defendant as defendant was not synonymous with the Federal Military Government”
This certainly was a complete departure from the case the defendant and the plaintiff fought at the trial Court and no leave was obtained to argue them. The two issues however flowing from the grounds of appeal alleging:
“1. error in law for failure to treat the defendant as a non-juristic person, and
- the decision is against the weight of evidence,”
An additional ground of appeal was filed with leave and it reads:
“3 the Learned Trial Judge erred in law when he held that the defendant was not synonymous with the Federal Military Government and as such had no right to recover debt due to the defendant from the retirement benefit of the Plaintiff,”
as the third ground of appeal but abandoned the general ground of appeal i.e. Ground 2 and it was duly struck out.
The Court of Appeal extensively adverted to new point of law canvassed by the defendant as appellant before them on the question whether the appellant was a juristic person or not. No leave was sought to argue the new issue and the conclusion of the Court of Appeal is that the issue of the appellant being a juristic person or not is a serious point of law and it was allowed to be argued as an issue, even though not relevant to any ground of appeal. The general rule is that issues for determination must be relevant to the grounds of appeal filed in Court; if not, those issues are incompetent. The overriding principle of cause of justice, the umbrella under which the lower Court sought refuge, with greatest respect, does not avail an appellant whose grounds of appeal cannot be linked in any way whatsoever with the issues formulated for determination. Those issues are therefore incompetent and they ought to be struck out as such. What the Court of Appeal was confronted with is alarmingly new to the battles the parties fought in the trial court; and as the Court of Appeal found inter alia:
“In this case on appeal the issue as to whether the appellant is a non-juristic person falls in line with the arguments of counsel and this court will allow the new point to be taken, particularly since the issue is not really in contest between the parties, even though there is no ground of appeal before us from which such could be said to have arisen.”
This new vista was opened in the dispute without leave of court, and without any ground of appeal before the court to support the issues. However, the battle as fought in the Court of Appeal resulted in holding that mistake in that the defendant’s name did not occasion any miscarriage of justice. But it went further that the appellant was properly surcharged and relied on s. 18 Pensions Act which provides that a pension and gratuity shall not be assignable or transferable or liable to be withheld, attached, sequestered or levied upon except for
(a) “……………..debt due to Federal Military Government.”
The lower court held that the conduct of the Panel of enquiry which found irregularities in the section the defendant headed by the appellant was known to the appellant; so were its findings. The court never adverted to whether the appellant was given a hearing. It therefore allowed the appeal.
It must be pointed out that the appellant was never told he was retired because of the Report of the Panel. He was not even informed how the sum he was surcharged with was arrived at. It has not been shown in the evidence before the trial court how the indebtedness of the appellant was arrived at and that he was confronted with allegations against him so as to defend himself. It is true the Pensions Act applied to the staff of the defendant by virtue of its statute but all the steps that must be taken to allow the appellant to know he had committed any misdeeds were withheld from him. The Court of Appeal overlooked this very fundamental aspect of fair hearing and arrogated the Administrative Panel to the status of unimpeachable inquisition.
I therefore find merit in this appeal and I allow it. I restore the judgment of the trial High Court and set aside the decision of the Court of Appeal. I direct that the sum of N12,227.41 deducted from the retirement benefits of the appellant be paid to him because the deduction was illegal and was a miscarriage of justice. I order N1,000.00 as costs of this appeal in favour of the appellant against the respondent, University College Hospital Management Board.
KUTIGI, J.S.C.: Briefly put, the plaintiff was in government service for a period of some twenty-four years before he was retired by the defendant for “the purpose of facilitating improvements in the service” via a letter, Exhibit 6 in the proceedings. On retirement, he was entitled to pension and gratuity of N20,980.73. Out of this amount he was paid only N8,753.32 by the defendant. The defendant informed the plaintiff that he had been surcharged and that the sum of N12,227.41 had accordingly been deducted from his retirement benefits. This latter figure represented the balance of what was to have been paid to the plaintiff as his retirement benefit as could be seen above.
The defendant contended that the surcharge arose from the findings of an administrative panel of enquiry which was set up to look into alleged irregularities of purchases of materials by the Supplies Department of the defendant and of which the plaintiff was the functional head. The plaintiff who gave evidence before the panel on the procedure of purchases only was not asked anything about any fraudulent practice personal to him and he was never notified of any allegation made against him. The report of the panel of inquiry was tendered as Exhibit 5. It reads in part-
“The Panel is convinced that losses amounting to N32,577.93 had been incurred by the Hospital between June 1977 and September 1978 as a result of the incompetence of members of the Supplies Department. In the circumstances the Panel has no choice but to recommend that Chapter 15 Section 1501 of the Federal Government of Nigeria Financial Regulations 1976, should be invoked on all the officers of the Supplies Department who were involved in the purchases of the items investigated. The level of surcharge attributed to each officer may be determined by an Implementation Committee which the Board may wish to set up.”
The defendant could certainly not have availed itself of the portion of Exh.5 above, as there was no evidence whatsoever that the procedure laid down in Financial Regulations Chapter 15 Section 1501 as recommended therein was complied with, nor was there any evidence that any Implementation Committee to determine the level of surcharge to be attributed to each officer was also set up.
In the circumstances, I find the appeal quite meritorious. I also find it easy to come to the conclusion, as did the learned trial Judge, that the surcharge was arbitrary and not arrived at after appropriate procedure would have been followed.
The defendant having failed to establish appropriate basis for the surcharge, it must be declared unlawful and I so declare. Consequently, the sum of N12,227.41 so unlawfully deducted from the plaintiff’s retirement benefit should be paid to him and I so order.
It is for the above reasons and others contained in the lead judgment of my learned brother Belgore, J.S.C. which I read before now that I allow the appeal. The judgment of the Court of Appeal is set aside while that of the trial High Court is restored. I endorse the order for costs.
SC.286/1989
