National Electric Power Authority V. Friday Edokpayi Eboigbe (2008)
LawGlobal-Hub Lead Judgment Report
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
This is an appeal against the Judgment of Justice S.W. Egbo-Egbo sitting at the Federal High Court Benin, delivered on the 17/6/99.
In Summary, the Respondent was a staff of the Appellant in this Appeal. Sometime in 1996, the Appellant through its letter dated 20th day of September, 1996 with reference number: 0024/0046/Vol.1/96 Compulsorily relieved the Respondent of his duties by retiring him. The Respondent, aggrieved at his retirement, filed a writ of Summons and Statement of Claim challenging his said retirement. In the writ of summons and statement of claim dated the 22nd of October 1998, which was later amended and dated 28/1/99, the Respondent asked for the following reliefs:
“1. A declaration that the retirement letter dated 20th day of September, 1996 with reference number 024/0046/vol.1/96 titled “Retirement from Service, “and addressed to one F.E. OSBOIGBE Officer IV ACCTS “, which letter was given to the Plaintiff does not in any way refer to the Plaintiff purporting to terminate his appointment with the Defendant does not in any way refer to the Plaintiff whose names are F. E. EBOIGBE OFFICER III ACCOUNTS and consequently null and void.”
- A declaration that in accordance with the condition of service regulating the relationship between the Plaintiff and the Defendant the Plaintiff is not due for retirement until he attains the age of at least 55 years before he can be liable to be called upon by the Authority on 3 months notice to retire. Consequently, the Plaintiff having not attained the age of 55 years the Defendant cannot call on the Plaintiff to retire from its services.
- An order of mandamus directing the defendant to reinstate the Plaintiff to his post from the date of the purported Retirement.
OR IN THE ALTERNATIVE
An order of Mandamus compelling and/or directing the Defendant to pay to the Plaintiff his earnings for 19 years with effect from October 1996 when he was purportedly retired until 2015 when he would attain the age of 55 years.
The total earnings of the Plaintiff for the 19 years will amount to N1,616,402.00 at N7,089.65 per month for 19 years. (See pages 40 – 43 of the Records of Appeal). ”
On his own part, the Appellant filed its own statement of defence. The Appellant’s statement of defence was amended several times and was eventually dated 22/2/98. The Appellant denied all the claims and reliefs as Contained in the Respondent’s statement of claim. After the hearing, Judgment was delivered on the 17th of June, 1999, and the trial Judge handed down the following orders:
(1) THAT the retirement letter dated 20th day of September, 1996 with reference No. O24/0046/vol.1/96 titled “Retirement from Service and addressed to one F. E. OSBOIGBE OFFICER IV “Accts”, which letter was given to the Plaintiff purporting to terminate his appointment with the Defendant does not in any way refer to the Plaintiff whose names are F.E. EBOIGBE OFFICER III Accounts are hereby adjudged null and void.
(2) THAT in accordance with the condition of service regulating the relationship between the plaintiff is not due for retirement until the attains the age of at least 45 years before he can be liable to be called upon by the authority on 3 months notice to retire, consequently the plaintiff having not attained the age of 45, the Defendant cannot call on the plaintiff to retire from its service.
(3) The Defendant is HEREBY ordered to serve the Plaintiff with the Corrected letter of retirement as contained in page 212.
(4) Defendant is also ordered to pay the plaintiff forthwith the sum of N1,616,402.00 (one million, six hundred and sixteen thousand, four hundred and two naira) as claimed as well as to set in motion the machinery to pay plaintiff all his retirement benefits.
(5) Cost of this action is assessed at N3,000.00 (three thousand naira) in favour of the plaintiff (see pages 92-115 of the record of Appeal).
Dissatisfied with the Judgment, the Appellant filed a notice of Appeal dated the 28th of June 1999, which was subsequently withdrawn and another filed and dated the 22nd day of September 1999. The Grounds of Appeal without their particulars are as follows:
(i) ERROR OF LAW
The Learned trial Judge erred in Law in granting all the reliefs sought by the Plaintiff.
(ii) ERROR OF LAW
The Learned trial Judge erred in Law when he held that the plea of estopped by the Defendant is an after thought and that evidence is at variance with the plea.
(iii) ERROR OF LAW
The Learned trial Judge erred in law in holding that the retirement of the Plaintiff was null and void and of no legal effect whatsoever.
(iv) MISDIRECTION OF FACT
The Learned trial Judge misdirected himself on the fact and law when he held that no positive steps was taken to communicate the Plaintiff with the corrected letter of retirement (Exhibit L page 212) and that the Plaintiff is still in the services of the Defendant and that retirement is not the same as termination.
(v) MISDIRECTION OF FACT
The Learned trial Judge misdirected himself on the fact of the case when he held that the Defendant will not pay the Plaintiff his correct entitlement if the Plaintiff should present the wrong letter of retirement (Exhibit F) to the Defendant.
(vi) ERROR OF LAW
The Learned trial judge erred in law in finding that the decisions in CHUKWUMAH v. SHELL PETROLEUM (1993) 4 NWLR Part 289 at page 521 ratio 9, NWOBOSI v. A.C.B. LTD (1995) 6 NWLR Part 404 page 664 ratio 15, FAPONLE v. U.I.T.H.B.M. (1991) 4 NWLR Part 183 at Page 47 ratios 6 and 7, FAKUADE v. O.A.U.T.H. (1993) 5 NWLR Part 291 Page 50 ratio 5. UBA LTD v. UGBOH (1995) 2 NWLR Part 380 Page 647 at page 653 ratios 8 and 10, THE INTERNATIONAL DRILLING COMPANY NIG. LTD v. AJIJALA (1976) 1 ALL NLR Part 1 at Pages 97 and 108 and NATIONAL ELECTRIC POWER AUTHORITY v. GODFREY O. ISIEVORE (1997) 1 NWLR Part 511 Page 135 at Pages 137, 139, 140 and 158 ratios 2, 4 and paragraph D – E of page 158 does not apply to this case. These various cases dealt with retirement in ordinary master and servant relationships, employments without statutory flavour and the quantum of damages that can be awarded where there is wrongful retirement or termination thereto as in this case.
(vii) ERROR OF LAW
The Learned trial Judge erred in law when he held that he cannot find any where in the Conditions of Service (Exhibit K) that provides for the retirement of the Plaintiff at the age of 36 or before the age of 55.
(viii) ERROR OF LAW
The Learned trial Judge erred in law in the way and manner he exercised his judicial discretion in granting the reliefs sought by Plaintiff. This amounts to double compensation to the Plaintiff.
(ix) The judgment is against the weight of evidence.
The Appellant also formulated the following issues for determination:
2.1 Whether the learned trial judge was right in granting the reliefs sought by the Plaintiff/Respondent in view of the overwhelming evidence laid during trial to show that the Plaintiff/Respondent could actually be retired before the age of 45 years or even before the official age of 55 years by the Defendant/Appellant, as provided for in chapter 14 Rule 141.06(1) of the Defendant/Appellant’s conditions of service.
2.2 Whether on the consideration of the plea of estoppel raised by the Defendant/Appellant against the Plaintiff/Respondent, the learned trial judge was right at holding that the point as made and stated cogently with proofs by the Defendant/Appellant were an after thought and at variance with evidence led.
2.3 Whether on the consideration of the facts and law the learned trial judge was right at holding that no positive steps were taken to communicate the Plaintiff/Respondent with the corrected letter of retirement and the canvassing by the learned trial judge the issue of termination when none of the parties had pleaded such before the court.
2.4 Whether on the consideration of the decisions in Chukwumah v Shell Petroleum (1993) 4 NWLR part 289 at page 521 ration 9. Nwobosi v ACB Ltd (1995) 6 NWLR part 404 page 664 ratio 15. Faponle v U.L.T.H.B.M. (1994) 4 NWLR part 183 at page 47 ratios 6 and 7. Fakuade v O. A. U. T. H. (1993) 5 NWLR part 291 page 50. UBA LTD V. Ugboh (1995) 2 NWLR Part 380 Page 647 at page 653 ratios 8 and 10. The International Drilling Company Nigeria Limited v. Ajijala (1976)1 ALL NLR part 1 at pages 97 and 108 and National Electric power Authority v Godfrey O. Isievore (1997) 7 NWLR part 511 page 135 at pages 137, 139, 140 and 158 ratios 2, 4 and paragraphs D – E of page 158, as cited by the Defendant/Appellant, whether the learned trial judge was right at holding that these cases did not apply.
2.5. Whether the learned trial judge was right in granting the reliefs sought by the Plaintiff/Respondent when they amount to double compensation or whether order is to hold employment as subsisting till retirement so as to award salaries etc. to unwanted staff or to award damages for wrongful termination if termination is held wrongful in accordance with the notice period stipulated in contract of employment.
The Respondent on his side, formulated three issues for determination:
- Whether the learned trial Judge was not right in granting the reliefs sought by the Respondent in his Amended Statement of claim in view of the clear provisions of Chapter 13, 131.01, 131.02 at page 125 of Exhibit K.
- Whether Chapter 14, 141.06 (1) at page 130 of Exhibit K which deals with pension payment will be relevant in deciding the issue of the Respondent’s retirement.
- What is the quantum of damages recoverable by the party who is prematurely retired.
Before arguing the merits of the appeal, the Respondent raised a notice of preliminary objection to the Competence of the appeal under Section 25 (2) (a) of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria 1990 on the Grounds that the notice of appeal filed on the 22nd day of September 1999, over a Judgment delivered on the 17th day of June 1999 was outside the three months period envisaged by the said Section 25 (2) (a) of the Court of Appeal Act. Counsel submitted that the three months period, which started to run from 18th day of June 1999 will end on 17th day of September 1999. He argued that the Appellant ought to have obtained the leave of this Court before filing the said notice of Appeal to make the Appeal Competent. He cited the Case of TIJANI AMOO & ORS V. ALHAJI BUSARI ALABI & ORS (2003) 12 NWLR Part 835 Page 537 at 553 Paragraph E – F. Counsel argued further that the Court lacked the Jurisdiction to grant the prayers sought on the motion on notice filed by the Appellant on the 27/05/05. He cited the Case of MADUKOLU V. NKEMDILIM (2001) 46 W.R.N. Page 1 T 13.
He urged the Court to uphold the preliminary objection, and strike out the Appeal.
To determine this preliminary objection, it is important to refer to the Court’s record. It is obvious that the Appellant in a motion on notice of 26/5/05 prayed this court “for an order extending the time up to 27th day of September 1999 within which Appellant/Applicant is allowed to file its notice of appeal … etc”
In its Ruling on the 6th of December 2005, this Court granted the application for extension of time.
The preliminary objection by Counsel for the Respondent is misconceived, misplaced and therefore unmeritorious. It is hereby overruled.
On the merits of the appeal, from the issues formulated by both Counsel issues Nos. 2.1, 2m, 2, and 2.5 as formulated by the Appellant are most apposite and flow from the Grounds of Appeal.
I shall therefore adopt those three issues and proceed to look at this Appeal in that perspective.
On issues No.1, the Appellant had argued that the Respondent could be retired at any time before the age of 45 or the maximum of 55 years.
He made Copious references to the Cases of ANGEL SPINNING & DYEING LTD V. AJAH (2000) 13 NWLR Part 685 (page 553 – 4 Paragraph H – A.)
- OBE V. NIGERSOL CONSTRUCTION LTD (1972) 2 UILR (Part 11)
- P.H.M.B. v. EJITAGHA (2000) 11 NWLR Part 677 at 160 Paragraph E.
He Contended that in line with the above decisions, the Appellant followed the laid down Principles in the retirement of the Respondent, which retirement was in accordance with Exhibit K Chapter 13 page 125, and Chapter 14 page 130 of the Appellant’s conditions of service, and that going by the decision in ANGEL SPINNING & DYEING LTD V. AJAH (supra) where the Court held that an employer could terminate the Service of an employee without stating reasons for such, that the Appellant followed due process as contained in its Conditions of service.
In reply to the foregoing arguments on this issue, the Respondent referred to Chapter 13, 131.01, 131.02 at page 125 of Exhibit K, and Contended that the lower Court was right in granting the Respondent the reliefs sought in view of the provisions of the said Chapter 13 which stated as follows:
“All established employees shall, on three months notice at any time after attaining the age of 45 years;
i. have the option to retire OR
ii. be liable to be called upon by the authority to retire. ”
He submitted that for the Appellant to justify his call on the Respondent to retire for whatever reason, the employee must have attained the age of 45. He argued that the retirement of the Respondent at the age of 36 was contrary to the said Chapter 13 of Article 131.01 provided in the Contract of employment, Exhibit K.
From the foregoing on issue No.1, the question is whether the law permits the Appellant to retire the Respondent at the age of 36 as it did.
The Supreme court in the Case of P.H.M.B. v. EJITAGHA Supra held:
“When an employer relies on one of the following reasons that is, ill-health or redundancy or re-organisation or retrenchment or unproductivity etc or even upon Contractual or regulatory powers conferred on and exercised by the employer to compulsorily retire a public officer, the burden is on the employer to satisfy the Court on the reason, and …. as the employer would be expected to have facts or law in support of his action.”
What is therefore required of an employer is to Satisfy the Court on the reason for his action.
In the instant Case, the employer gave through DW2 Udochi Eugina Ezem a Senior Manager in its personnel and Administration gave details of how and why the Respondent was retired. (see pages 73 – 75) of the Record of Appeal. Where DW2 gave the reason for retiring a number of their staff including the Respondent for the purpose of reorganization.
In the Case of ANGEL SPINNING & GYEING LTD V. AJAH Supra, this Court held:
“A Private limited liability company or any employer of labour does not have any obligation to retain the services of any unwanted employee and may terminate the appointment of the employee without any reason given….”
In OBE V. NIGERSOL CONSTRUCTION COMPANY LTD (1972) 2 UILR (Part II) Page 121, the court held thus:
“An employer of labour is not bound to be saddled with an unwanted staff, and may terminate the services of such an employee without any reason for the termination; However, where an employer states a reason for the termination, such reason must be plausible to justify such termination of the appointment of the employee.”
From the foregoing, it is obvious that the Appellant gave a concrete and cogent reason for retiring the Respondent among other staff during its reorganization age not withstanding.
The learned trial Judge was therefore wrong when in its Judgment on the 17/6/99 held:
“In accordance with the Condition of service regulating the relationship between the Plaintiff and the Defendant, the Plaintiff is not due for retirement until he attains the age of at least 45 years before he can be liable to be Called upon by the authority on 3 months notice to retire, Consequently, the Plaintiff having not attained the age of 45, the Defendant cannot call on the Plaintiff to retire from its service.”
I therefore agree with the submission of learned Counsel for the Appellant that the Appellant gave a graphic detail of the events that led to the retirement of the Respondent. In the premise therefore, the first issue for determination in this appeal is resolved in favour of the Appellant.
The relevant grounds of appeal to which this issue relate succeeds.
On issue No.2, learned Counsel for the Appellant had contended that the Respondent having voluntarily collected his letter of retirement, and took Certain steps thereafter is estopped from claiming that his Surname was misspelt.
He cited SOSANYA V. ONADEKO (2000) 11 NWLR Part 677 page 34.
IGA V. AMAKIRI (1976) 11 SC Paragraph 1 pages 12 -13.
He argued that the error in referring to the Respondent as “F.E. OSBOIGBE, Officer IV Accounts instead of “F.E. EBOIGBE and Officer III Accounts were merely typographical and did not cause any Confusion whatsoever.
It should be noted that Counsel for the Respondent formulated what he considers to be issues for determination, and apart from the Appellant’s issue No.1 which he replied to, all the other issues were neither replied to nor meaningful reference made to the issues, Counsel spent time dancing round the fact that the Respondent was retired before the age of 45. He is therefore taken to have no reply to issue Nos. 2.
It is my view that having collected his letter of retirement, and Consequent upon that the Respondent stopped coming to work, he has by his Conduct accepted the letter and its contents, he cannot later refer to his Surname being misspelt, which I consider merely typographical, and therefore inconsequential.
The learned trial judge was therefore in error when in the Judgment of 17/6/99 he stated
“The retirement letter dated 20th day of September 1996 with reference No.024/0046/vol.1/96 titled “Retirement from Service and addressed to one F.E. OSBOIGBE OFFICER IV ACCTS” which letter was given to the plaintiff purporting to terminate his appointment with the defendant does not in any way refer to the plaintiff whose names are F.E. EBOIGBE OFFICER III Accounts are hereby adjudged null and void.”
I agree with learned Counsel for the Appellant that the plea of Estoppel was available to the Appellant in the circumstance, and not an after thought as stated by the learned trial Judge in the Judgment. The trial judge was therefore wrong in holding that the defence of Estoppel was not supported by evidence, and therefore an afterthought.
Issue No.2 is also resolved in favour of the Appellant.
On issue No.3, Counsel for the Appellant referred to the order made by the trial Judge awarding the sum of N1,616,402.00 to the Respondent covering the period of 19 years from date by retirement in 1996, and at the same time granting the same Respondent his gratuity and pension as double compensation.
He cited the Case of CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (Part 289) page 512. He described the order of the lower Court as misapplication of the law.
It is also noteworthy that Counsel for the Respondent did not reply to issue No.3.
It is my view that the learned trial Judge in his order contradicted himself so much that he rendered his own orders meaningless.
The Judge on one hand ordered that the Respondent be paid all his retirement benefits, and at the same time described the same retirement of the Respondent as null and void.
Again the learned trial Judge ordered the Respondent to be paid the sum of N1,616,402.00 covering the period of 19 years from the date of retirement in 1996 and at the same time ordered that the same Respondent be paid his gratuity and pension. I agree with Counsel for the Appellant that the order made by the trial Judge in the Judgment of the 17/6/99 is not only contradictory and confusing, but, an obvious misapplication of the law. Issue No.3 is also resolved in favour of the Appellant.
Consequent upon all that have been stated earlier, this appeal succeeds, and is hereby allowed. The Judgment of 17/6/99 and the order of the lower Court made on page 114 of the record of Appeal are hereby set aside.
The Appellant is hereby ordered to pay the Respondent all his legitimate entitlements without delay. I make no order as to costs.
Other Citations: (2008)LCN/3020(CA)
