Nigerian Ports Authority V. Ephraim Adewoga Banjo (1972)

LawGlobal-Hub Lead Judgment Report

Prepared by ADEMOLA, C.J.N & Read by MADARIKAN, J.S.C

This is an appeal from the judgment of Adebiyi, Acting Judge, (as he then was), in the High Court of Lagos, in which he entered judgment for the plaintiff/respondent for a sum of 34,972pounds and 100 guineas costs. The plaintiff had claimed a sum of 38, 709pounds.6.7, as damages for wrongful termination of appointment and/or breach of his contract of appointment.

The defendants/appellants had earlier filed one ground of appeal but later obtained leave to file three additional grounds. The whole argument before us, however, centered on the interpretation of a paragraph of the conditions of service laid down by the defendants/appellants hereinafter referred to as the Authority. The said paragraph known as paragraph 1505, as later amended in 1960, reads as follows:-

“A pensionable officer may at the discretion of the Authority continue in pensionable service up to the age of 60 years provided that yearly intervals after attaining the age of 55 years he is certified by an authorised medical officer as physically fit for the performance of his duties.”

The underlined words are ours and they indicate the amendment to the original paragraph 1505.

There is no dispute that the respondent was a pensionable officer. In fact he was transferred to the service of the Authority from the Government pensionable service, and became the Deputy Chief Establishment Officer. He served his term of office till he attained the age of 55 years and, six months before he attained this age, he was in view of his wide experience, granted an extension in the service of the Authority in accordance with Section or Paragraph 1505 of the Conditions of Service (Officers). The Acting General Manager who had the final say in the matter, in his minutes about the approval sought for the extension, said as follows:-

“Mr. Banjo continues his service to the Authority as he is conscientious and hardworking.”

The Board of the Authority confirmed at its meeting this decision. Thus, the respondent was retained in the service of the Authority as from the 2nd August, 1965, the day he attained his 55th Birthday. In compliance with the provisions of Section 1505 of the Conditions of Service, he was on 1st August, 1966, sent for medical examination at which he was successful. He therefore continued in the service as from 2nd August 1966.

In March, 1966, at a meeting of the Board of the Authority, the question was asked about the retention of officers after the age of 55. This is shown in Exhibit O and the following minutes therein are relevant:-

“A member pointed out that the resolution in Minute No. 17, concerning the retention of certain officers who had attained the age of 55 did not specify the period for which it was intended to retain such officers.”
“The General Manager replied that the Authority’s Conditions of Service (Officers) allowed officers to continue in the service until the age of 60, subject to annual medical certificate of fitness.”

The respondent continued in the service in 1966. On 5th May, 1967, however, at a meeting of the staff and Establishment Committee of the Authority, out of the blue, his matter came up again for discussion. It was there and then decided that he should be given six months notice to retire with effect from December 1st, 1967, and before this decision was ratified by the Board of the Authority, it was communicated to the respondent by letter Exhibit R, dated 1st June, 1967. On 30th June 1967, the Board approved of the decision. The respondent resisted this letter of termination of his appointment and stated that he was entitled to continue in the service of the Authority until he attained the age of 60 years subject, of course, to the doctor’s certificate of fitness.

It appears that the way the Authority looks at Section 1505 is that after 55 years of age, the service of the respondent continued as from year to year depending upon a certificate of fitness from the Medical Officer.

It is common ground however, that there was no question of disciplinary action being taken against the respondent, and that his matter was one of retirement simpliciter. Thus, the question for determination was whether paragraph or Section 1505 provides for a retiring age of 60 years when an extension is granted, or a retiring age of 56, 57, 58, 59 and 60 years as the case may be, depending upon a medical certificate.

In our view, if it is the latter, as the appellants now claim by the argument of their counsel, it is difficult to agree with the view postulated by counsel that the notice of determination served on the respondent was a valid one. Such notice, in our view, may be given by agreement of parties or for misbehaviour. The respondent was to expect his contract of service to continue from year to year until he reached the age of 60 or until such time before 60 years of age when the Medical Officer certified him as unable to work further.

This certainly, in our view, is the correct interpretation that can be given to the old Section 1505. Now, has the amendment of the Section by the insertion therein of the words “at the discretion of the Authority” made any difference We do not think so. The words, to our mind, cannot be taken to mean that the Authority, during the period of extension, had a right or discretion to terminate the contract by notice, unjustifiably.The discretion the Authority had in the matter, which it could exercise under Section 1505, was whether it would decide to allow a continuation of his service as from 2nd April, 1966.

It was clear that what the Authority said in effect was a continuation of his service by the respondent until he was 60 years of age depending upon a certificate of fitness by the Medical Officer from year to year.

We are in no doubt from the whole evidence before the learned trial Judge, that the earlier view of the Authority in the matter was that the respondent’s service was to continue until he was 60 and that that was the purpose of Section 1505. In this connection, we refer to the aforesaid reply of the General Manager in Exhibit O, quoted above, that the Authority’s Conditions of Service allowed officers to continue in the service until the age of 60 subject to annual medical certificate of fitness.

We are clearly of the view therefore that Section 1505 would not permit the Authority to exercise its discretion to retire an officer from the service under the section before he attained 60 years of age.

He cannot be left in jeopardy of being called upon at any time at the discretion of the Authority to retire at an earlier age before 60.

We must therefore dismiss this appeal and it is accordingly dismissed with 45 guineas costs to the Respondent.

SC.64/1969