Psychiatric Hospital Management Board V. E.O. Ejitagha (2000)
LAWGLOBAL HUB Lead Judgment Report
UWAIFO, J.S.C.
The respondent was the plaintiff in this case. At all material times to this suit he was the Chief Executive Officer (Accounts) in the services of the appellant at the Psychiatric Hospital, Uselu, Benin City. He was born on 15 December, 1942 and by the conditions of service would retire at the age of 60 years; that would be on 15 December, 2002.
By a letter dated 22 July, 1987, the respondent was dismissed from the service by the appellant. He contested this in court and on 12th September, 1990, the dismissal was declared null and void. Following the terms of the judgment, the respondent was reinstated to his position in the service. But shortly after, about four months, the respondent was served with a letter dated 4 December, 1990 by the appellant compulsorily, retiring him from the service.
It was that notice of compulsory retirement which caused the respondent to go to court again to seek (1) a declaration that his compulsory retirement was null and void and without legal effect (2) a declaration that he is still in the service and entitled to all his dues in the form of salaries, allowances and emoluments; and (3) an order directing his reinstatement or that he be paid all his said dues until he attains the age of 60 years. This was calculated as N292,824.48. He also claimed N1,842.08 being arrears of salary and emoluments for December, 1990. On 6 January, 1992, in a judgment delivered by G. E. Edokpayi, J. sitting at the High Court, Benin, the claim was dismissed. He held, quite surprisingly, after referring to Decree No. 92 of 1979 that the respondent did not lead evidence to show that by the conditions of service between him and the appellant, the appellant could not terminate his appointment if it no longer required his services when indeed the issue was not termination of appointment. The simple issue was that of forced retirement or what was referred to as compulsory retirement.
Besides, there are strict procedural requirements that must be observed under the said Decree No. 92 of 1979, Section 13, in the case of an officer of the respondent’s cadre which were not if it had been a case of termination of appointment. It is very well settled that unless those conditions are followed, such a termination is invalid: see Olaniyan v. University of Lagos (1985) 2NWLR (Pt.9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (pt.34) 162; Olatunbosun v. Niser Council (1988) 3NWLR (Pt. 80) 25; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (pt. 363) 376.
Again, even more amazing, the learned trial judge made further observation imposing the burden of proof on the respondent to show that his forced retirement was not justified when he said as follows:
“The plaintiff testified that the defendant cannot compulsorily retire him until he is 60 years of age. No provision of the General Orders or Decree No. 92 of 1979 was pointed at in justification or proof of this assertion … The plaintiff has not led evidence to establish the wrongfulness of his compulsory retirement and payment to him of three months’ salary in lieu of notice. The mere fact that the plaintiff was retired before he attained the age of 60 years does not by itself prove the wrongfulness of his retirement.”
I think this legal faux pas must be corrected at once. To force a public servant into retirement, that is, before he gets to his retirement age is an unusual action against him in his career. Such an action could, admittedly, be due to a variety of reasons including ill-health, redundancy, reorganisation, retrenchment, unproductivity etc., or even upon contractual or regulatory powers conferred on and exercised by the employer. When an employer relies on one or more of these reasons, he would be expected to have facts or the law in support. The burden is on him to satisfy the court on this. To place the burden of proof wrongly on a party will usually lead to a miscarriage of justice. This is because the judge’s opinion will normally be weighted unjustly on relevant issues against such a party: see Onobruchere v. Esegine (1986) 1 NWLR (pt. 19) 779; (1986) 2 SC 385.
That was very apparent in the learned trial Judge’s resolution of issues in the present case. Apart from the excerpts made above from his judgment, he could not get out of the implication of wrongly placing the burden of proof. He went on again towards the end of his judgment to virtually repeat that:
“The plaintiff has not shown that the conditions of service between him and the defendant do not allow the defendant to retire him compulsorily on condition that he is given three months’ notice of such retirement or he is paid three months’ salary in lieu of such notice. He also has not shown that under the contract or conditions of service he has the right to reject the three months’ salary in lieu of notice. He also has not shown that under the contract conditions of service he has the right to reject three month’s salary in lieu of notice. He also has not shown that the defendant was wrong in its decision that the services of the plaintiff were no longer needed by the defendant.”
But on 4 July, 1994, the Court of Appeal reversed that decision. It held that the onus was on the appellant to justify its action to retire the respondent as it did which it failed to’ discharge. It declared that the compulsory retirement of the respondent was null and void; that he is still in the services of the appellant and entitled to’ all his salaries, allowances and emoluments; and ordered the immediate reinstatement of the respondent.
In its appeal against that judgment, the appellant has put forth two issues far determination, namely: (a) whether the Pensions Act of 1979 applies to and governs the mode of compulsory retirement of the respondent from the service; (b) whether the respondent was validly compulsorily retired from the service in accordance with the relevant provisions of the Pensions Act. The respondent is of the view that only issue (b) arises for determination. From the facts of this case, I have no doubt that the two issues are relevant. Certainly in resolving the issues, the Pensions Act 1979 must came into prominence.
The respondent being in the services of the appellant, his employment was governed by the Psychiatric Hospital Management Board Act 1979 (formerly Decree NO’. 92 of 1979). He was a Chief Executive Officer (Accounts) an grade level 13. The third schedule to the said Act names the Hospitals’ under the control and management of the appellant Board (i.e. the Psychiatric Management Board). They are three in number, including the Psychiatric Hospital Uselu, Benin City. Each of these Hospitals is affiliated to’ a teaching hospital. The one in Benin City is affiliated to the University of Benin Teaching Hospital (UBTH).
The UBTH is, in the second schedule to’ the Pensions Act, 1979 (formerly Decree No. 102 of 1979), one of the organizations declared as Public Service under that Act. The respondent being employed in the Psychiatric Hospital which is part of the UBTH clearly make him a public servant subject to the said Act. Apart from this, the appellant is among the organisatians formally declared Public Service under the Act by Government Notice No. 455 published in the Federal Republic of Nigeria Official Gazette No. 24, Vol. 68 of 21 May, 1981. As regards the present case, it is the issue of retirement under that Act that is relevant as contained in section 4(2). The lower court was therefore in error when it observed In this case reported as Ejitagha v. Psychiatric Hospital Management Board (1995) 2 NWLR (pt. 376) 189 Per Ubaezanu, JCA at p.197 as follows:
“There is no evidence before the lower court that the appellant’s appointment is a pensionable one or that it is subject to the Pensions Act. The mere fact that a person is said to be in public office does not ipso facto entitle him to pension or bring his service under the Pensions Act so as to subject his appointment to the provisions of S.4(2) of the fact. The Second Schedule to the Act lists the organizations and establishments declared as a public service under the Act. There are aver one hundred of such Federal Government parastatals listed in the Second Schedule. The Psychiatric Hospital Management Board (respondent) is not there. The respondent cannot retire the appellant under a law that does not apply to or regulate his appointment S. 4(2) of the Pensions Act, Decree No.102 of 1974 does not apply to’ the appointment or conditions of service between the appellant and the respondent.”
The learned Justice’s observation was obviously per incuriam as his attention was not drawn to the relevant provisions of the law on the point. The appellant (as respondent) in the court below had submitted before that court that the Pensions Act applied to the respondent (as appellant) in that court and that he was retired under S, 4(2) of that Act. He submitted further that Decree No, 92 of 1979 which set up the Board does not deal with retirement but that S. 13 thereof deals with discipline and removal of some categories of staff, including administrative staff. This was in contrapose to the contrary argument that the only way open by which the respondent could have been removed from office was to comply with the said S. 13. Unfortunately, the court below then proceeded to consider the provisions of the said S. 13 of the Act establishing the Board which lay down the procedure for removing an officer of the status of the respondent from office. It then observed (1995) 2 NWLR (pt. 376) 189 at p. 198 Per Ubaezonu JCA as follows:
“It is not denied by the respondent that the retiring age of the appellant is 60. It is also not denied that at the time of the purported compulsory retirement, the appellant was only 49 years of age. Before the appellant should rightly be deprived of his eleven remaining years of service he ought to be informed of the reason and given the opportunity of controverting the deprivation of that right. The provisions of S.13 (I) of Decree 92 of 1977 (sic: 1979) ought to be complied with.
The respondent does not pretend that it complied or purported to comply with S.13(1) of Decree 92 of 1979 dealing with removal of its staff of the appellant’ s cadre. It acted under the Pensions Act which does not apply.”
It was on that basis the appeal was allowed. This was an error: 1t would have been inappropriate, in my view, to purport to retire the respondent in the circumstances by resorting to the provisions of S. 13 which smacks exclusively of the impugnment of his character as that could not be explained other than as a measure of discipline. But the letter of 4 December, 1990 (Exhibit B) written to the respondent by the Secretary to the appellant Board was headed “Compulsory Retirement “and the body reads:
“I am directed to inform you that the ‘Board, at its 51st Regular Meeting held on 3rd and 4th December, 1990, decided that it no longer requires your services. You are therefore compulsorily retired with immediate effect.
- You will be paid three months’ salary lieu of notice and your other entitlements, less any outstanding debt owed to the Psychiatric Hospital, Uselu, Benin City.
- You are to complete the necessary retirement papers for processing and ensure that you return to the Medical Director, any hospital property in your possession and obtain a clearance letter from him.”
(Emphasis mine)
There can be no doubt that the respondent comes under the Pensions Act both as to when and how he may leave the service by way of retirement and as to his retirement benefits. Section 4 provides for when to retire as follows:
“4(1) Every officer shall retire upon attaining the age of sixty years, so however that for officers retiring on or before 31st March, 1977, the compulsory retiring age shall be fifty-five years.
(2) The Minister may require an officer to retire from the service at any time after he has attained the age of forty-five years subject to three month’s notice in writing of such requirement being given.”
As can be seen, for subsection (2) to be applied, three conditions must be met. First, it required the intervention of the Minister of health. It must be clear that the Minister has so requested an officer to retire from the service. Second, the officer must have attained forty-five years. Third, the officer must be given three months’ notice in writing that the Minister requires him to retire. Three months’ salary in lieu of such notice will not suffice as was purported in the letter to the respondents. I do not think it is right to hasten such officer out of office overnight or to give that impression. He must, in accordance with the law, be given three months to wind up his tenure in office. I am of the view that all three conditions must be satisfied.
The burden is clearly on the appellant here to show that the provisions of S.4 were faithfully complied with. There is nothing in the letter of the purported compulsory retirement to show that it was at the instance or intervention of the Minister. As he is the only appropriate authority who could require the respondent to retire from the service prematurely, it must be apparent on the face of the letter that he did so; see Wilson v. Attorney -General Bendel State (1985) 1 NSCC (Vl.16 Pt. 1) 191 at 204 (1985) 1 NWLR (Pt.4) 572 at 587 where Nnamani JSC, who read the leading judgment, said inter alia:
“Section 1 and 3(1) of Act No. 10 of 1976 had as indicated earlier vested in the appropriate authority the power to remove or dismiss a public officer….There is noting whatsoever in exhibit 2A to indicate that the act of dismissal of the appellant was the act of the appropriate authority, nor is there any evidence either that he authorized or directed any person to so dismiss him.”
The Secretary to the appellant Board who wrote Exhibit B simply said he was directed to inform the respondent that “the Board, at its 51st Regular Meeting held on 3rd and 4th December, 1990, decided: that his services were no longer required. It is obvious that it was not the Minister who so directed or indeed who required the respondent to retire. To make matters worse, para. 2 of Exhibit B purported to offer three months’ salary and other entitlements in lieu of notice to effect the immediate retirement of the respondent. Not even the Minister could do this under S.4(2) of the Act. he must act within the law. In mayor etc of Westminster v. London & North-Western-Railway Co. (1905) AC 426 at 430, Lord Macnaghtcn said;
“It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.”
The appellant purported to exercise power which it has not got. Although the lower court misunderstood the essence of Exhibit ‘B’ by which that power was exercised, it was right in declaring it invalid and allowing the appeal against the compulsory retirement of the respondent. It was also right in ordering the reinstatement of the respondent to his office and the payment of all his salaries, allowances and emoluments. I accordingly dismiss this appeal as totally lacking in merit. I award the respondent N10,000.00 costs against the appellant.
SC.47/1995
