DR. S.A.O. ADEGOKE v. OSUN STATE COLLEGE OF EDUCATION
(2010)LCN/3749(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/I/111/08
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
DR. S.A.O. ADEGOKE – Appellant(s)
AND
OSUN STATE COLLEGE OF EDUCATION – Respondent(s)
RATIO
THE MEANING OF THE TERM “STATUTORY FLAVOUR”
The term “statutory flavour” simply means “covered by statute”. Thus, an employment will be taken as enjoying statutory flavour when it is covered or governed by statutory provisions in every material particular as to appointment of the employee, termination or dismissal and other sundry conditions. PER ALAGOA, J.C.A.
STANLEY SHENKO ALAGOA, J.C.A. (Delivering The Leading Judgment).: This is an appeal against the judgment of T. O. Awotoye J. of the High Court of Osun State holden at Ilesha in Suit No. HOS/68/2000 DR. S.A.O. ADEGOKE V. OSUN STATE COLLEGE OF EDUCATION delivered on the 5th day of October, 2005. It is perhaps necessary for the records to state that this case was filed at the Osogbo Judicial Division of the High Court where hearing was commenced by Awotoye J. and had to be continued with and determined to finality by Awotoye J. upon his transfer to Ilesha High Court. At the court below, the Appellant as Plaintiff had by paragraph 17 of the Amended Statement of Claim dated the 20th day of June, 2005 and contained at page 11 of the Record of Appeal claimed against the Respondent as Defendant as follows:-
1. A declaration that the purported retirement of the Plaintiff by the Defendant as contained in the Defendant’s letter dated 1st June, 1999 is wrongful, unconstitutional, null and void and that the Plaintiff remains an employee of the Defendant until he has attained the compulsory age of retirement or his services legally and properly dispensed with.
2. An order directing the Defendant to accord the Plaintiff all rights and privileges attached to his position as an employee of the Defendant including payment of salaries, allowances and emoluments.
Pleadings were filed and exchanged by the parties. The Appellant as Plaintiff gave evidence on his behalf while the Respondent as Defendant testified as 1st DW through one Rev. Cannon Moses Adegboyega Atoyebi, Deputy Registrar (Academic) Osun State College of Education, Ilesha. A number of Exhibits were tendered and admitted. At the conclusion of evidence, Counsel on both sides addressed court and in a considered judgment delivered on the 5th October 2005, the learned trial Judge dismissed the Plaintiff’s claim. It is this judgment that is the subject of the present appeal.
The facts of this case are that the Plaintiff turned Appellant was a Principal Lecturer with the Respondent institution. On the 2nd April, 1997 the Respondent advised the Appellant in writing to retire because it had been discovered that his date of appointment in the Public Service was the 1st February, 1962 and that his service with the Respondent should have ended on the 31st January, 1997. The Appellant wrote to the Respondent contending that the Respondent was wrong in its computation of time and the Respondent subsequently wrote to the Appellant agreeing with the Appellant’s position.
However, Respondent later wrote back to the Appellant contending that its former position that the Appellant should retire had been confirmed by Circular No. HS.6/12 of 3rd March, 1999 as a result of which the Appellant was retired hence the action in the lower court which as has been  stated was dismissed by the learned trial Judge.
Appellant’s Notice of Appeal to the Court of Appeal dated 19th January, 2006 and filed same day can be found at pages 36-38 of the Record of Appeal and consists of three grounds of Appeal which are stated hereunder devoid of particulars
GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law when he held that the Plaintiff’s employment with the Defendant did not enjoy statutory flavour.
GROUND TWO: MISDIRECTION
The learned trial Judge misdirected himself when he held that the Plaintiff was only entitled to damages for wrongful retirement as his employment did not enjoy statutory flavour.
GROUND THREE:
The judgment is against the weight of evidence.
From these grounds of Appeal, the Appellant in paragraph 2.00 at pages 2 and 3 of his Brief of Argument dated the 26th June, 2008 and filed on the 3rd July, 2008 distilled the following two issues for the determination of this Court –
ISSUE (1) – Whether the Plaintiff’s employment with the defendant enjoyed statutory flavour?
ISSUE (2) – Whether the Plaintiff was on the pleadings, evidence and relevant law entitled to the reliefs claimed in the court below?
The Respondent for its part has in paragraph 3.03 at pages 3 and 4 of the Respondent’s Brief of Argument formulated the following three issues for the determination of this Court-
ISSUE 1 – “Whether the Plaintiff’s (Appellant) employment with the Defendant (Respondent) enjoyed statutory flavour.”
ISSUE II – “Whether the learned trial Judge based on the evidence before him was wrong to have held that the Appellant was only entitled to damages having held that his employment did not enjoy statutory flavour.”
ISSUE III -“Whether the judgment could be said to be against the weight of evidence led before the learned trial Judge to therefore warrant the Court of Appeal to interfere.”
This appeal came up for hearing on the 24th February, 2010 with Counsel for the parties adopting and relying on their respective briefs. Reference was earlier made in this write-up to the Appellant’s Brief of Argument dated 26th June, 2008 and filed on the 3rd July, 2008. In addition to this the Appellant filed a reply brief of argument dated the 26th August, 2008 and filed on the 8th October, 2008. M. O. Agboola with him M. Abiola (Miss), adopted and relied on the Appellant’s Brief of Argument and Reply Brief and urged this Court to allow the appeal. Chief I. Ogundele, Counsel for the Respondent adopted and relied on the Respondent’s Brief of Argument and urged this Court to dismiss the appeal.
A cursory look at the issues distilled by the parties from the Grounds of Appeal reveals that issue 1 in both briefs of argument are exactly the same.
Issue 2 in the Appellant’s Brief of Argument is the same in content with issue 3 of the Respondent’s Brief of Argument even though different words have been used and the issues can therefore be treated together.
Issue II in the Respondent’s Brief of Argument in so far as it deals with the issue on Statutory flavour regard being had to the question of damages can be merged with issue I to now read as follows –
“Whether the learned trial Judge was right in holding that the Plaintiff’s (Appellant’s) employment did not enjoy statutory flavour and that Appellant could only be entitled to damages.”
The new issues which in essence are no different from those formulated by the parties will now be as follows:-
ISSUE 1 – Whether the learned trial Judge was right in holding that the Appellant’s employment did not enjoy statutory flavour and that the Appellant could only be entitled to damages.
ISSUE 2 – Whether the Appellant was, regard being had to the pleadings, evidence and the law entitled to the reliefs sought in the court below.
I shall now proceed to deal with the issues in that order.
On issue 1, Appellant submitted that from the pleadings of the parties, they were both in agreement that the employment of the Appellant with the Respondent enjoyed statutory flavour. Reliance was placed on paragraph 16 of the Amended Statement of Claim and paragraph 16 of the Statement of Defence. Appellant’s Counsel submitted that under cross examination, the Respondent’s sole witness stated the rules on pensionable service. Reference was made to page 22 line 17 of the Record of Appeal, where the witness was said to have admitted that the Pensions Act applied. Paragraph 4 of Exhibit “A” (the Appellant’s letter of appointment) is said to have made provision for transfer of previous service with a different employer which notion is only cognizable under the Pensions Act. Counsel contended that it is irreconcilable with a purely contractual employment where a claim under a previous employment will fail the simple test of privity. He went on to further submit that only a service amenable to the Pension Act recognises transferring service and paying pension for employment among scheduled employers in public service.
Appellant’s Counsel also argued that the Court also found that the Pension Act was applicable to the Appellant’s case.
Reference was made to page 33 line 10 of the Record of Appeal to the effect that,
“The Pension Act of 1990 is applicable to the present case by adoption by virtue of page 3 of Pension Act Law of Osun State of 2002.”
Counsel further submitted that it was surprising for the court to hold that the Appellant was rightly retired under section 4(2) of the Pensions Act as any public servant who had attained 45 years could be retired under the Act with three months notice. Counsel submitted that both findings are irreconcilable. He went on to say that the Pensions Act is a statute and an employment to which it relates has statutory flavour. Reliance was placed on P.H.M.B. V. EJITAGHA (2000) FWLR (Pt.9) 1510. Counsel has contended that it is clear from paragraph 6(C) of the letter of employment Exhibit “A” that the Plaintiff’s employment was amenable to the existing pension policy in the public service. He further submitted that Exhibit “F” calling for retirement of public officers who had spent 35 years in service is a circular based on presentation of years of pensionable service as laid down in section 4 of the Pensions Act. Counsel went on further to submit that the line of reasoning of the Court that if an employment has statutory flavour under a statute (in this case the Pensions Act), it will be denied statutory flavour if it is not amenable to the provision of another statute (e.g. the statute creating the defendant) does not find support in P.H.M.B. V. EJITAGHA (supra). Appellant’s counsel took the position that an employment has statutory flavour when it is governed in any aspect of it by statutory provisions as to appointment, termination or dismissal as exemplified by SHITTA-BEY V. FCSC (1981) 1 SC 40; OLANIYAN V. UNILAG (2001) FWLR (Pt.567) 808 or premature retirement (as exemplified by P.H.M.B. V. EJITAGHA (supra).
It is the submission of the Appellant that the question whether the Appellant’s employment enjoyed statutory flavour or not was not in issue between the parties at the trial court as the parties were in fact on common grounds on it. Counsel went on to submit that not even in the address of the Respondent’s Counsel did he say that the Appellant’s employment did not enjoy statutory flavour but he tried to justify the Appellant’s retirement under the Pensions Act. Appellant’s Counsel then went on to submit that in view of the trial court’s own findings that the employment on the matter of pensionable service was amenable to the Pensions Act, the holding that the employment did not enjoy statutory flavour was a clear misdirection on the facts of the case and the finding of the trial court based on it was perverse and ought to be set aside by the court.
On this issue, the Respondent submitted in its brief of Argument that the Appellant’s employment did not enjoy statutory flavour and that the Respondent’s averment in paragraph 16 of its Brief of Argument did not amount to an admission that the Appellant’s employment enjoyed statutory flavour. Respondent’s Counsel submitted that the Appellant under cross-examination at page 18 of the Record of Appeal stated that he knew there is a pension law which governs those employed in the Ministry and Tertiary institution. Counsel went on to contend that the Respondent is a tertiary institution in Osun State and according to the Appellant, the pensions law governs it. Respondent’s Counsel went on to submit that by the provision of section 3 of the Pension Law of Osun State Cap 124 Vol. 5 Laws of Osun State 2002, Osun State adopted the provision of the Pensions Act in respect of pension to officers in its public service and that the adoption of the provision of the Pensions Act by Osun State Government does not make the officers in its public service to enjoy statutory flavour.
Respondent’s counsel referred to the Osun State College of Education, Ilesha Law of 1992, section 21 of which provides as follows-
(i)”The rates of remuneration, scales of salary, contract additions, and other conditions of service for members of the academic, administrative professional and technical staff other than those mentioned in Part IV of this statute shall be as may be determined by the governing council.”
(ii) “The College shall operate for its staff a pension scheme similar to that which obtained from time to time in the public service of the state and to this end it shall make adequate annual provision for the pension fund.”
Counsel for the Respondent submitted that by section 21(1) of this law, the condition of service of the Appellant shall be determined by the Governing Council as Part IV of the law referred to in section 21 of the Osun State College of Education Law is on the Principal Officers of the College namely the Provost, Deputy Provost, Registrar and the College Librarian.
According to Counsel the law does not provide for the condition of service of the Appellant neither does it provide for a subsidiary legislation thereof. Counsel went on to say that the consequence is that Appellant’s employment does not enjoy statutory flavour and Appellant could therefore not claim as he did. He stated that all what the law provided for is a mere regulation and nothing more and not legislation. Regulation he submitted does not partake of nature of legislation merely because they were made by a statutory body. Reliance was placed on KATTO V. C.B.N. (1999) 5 SCNJ 1 & 2. Section 21(1) of the Osun State College of Education Ilesha Law 1992 is now section 23 of the Osun State College of Education Ilesha Law Cap. 27 Vol. 5 Law of Osun State he stated. It was his further submission that a Regulation with statutory flavour must be enacted by parliament or any law making body as a Schedule to an Act or law or as a subsidiary legislation and the fact that the other contracting party is the creation of statute does not make any difference. He relied on SANI V. F.C.D.A. (2007) 46 WRN 82 at 90 ratio 4. Counsel posited that an appointment enjoys statutory flavour if the conditions of service of the employee are contained in a statute. Apart from this all other appointments are founded on conditions of service agreed to by the parties thereto. Counsel relied on N.R.M.A.F.C. V. JOHNSON (2007) 49 WRN 123 at 134 ratio 8. He went on to submit further that the Conditions of Service of the Appellant is not contained in any Statute therefore Appellant’s employment does not enjoy statutory flavour. Counsel submitted that throughout the trial before the learned trial Judge, there was no evidence placed by the Appellant before the court that Appellant’s employment with the Respondent was subject to statutory provisions. The learned trial Judge critically examined the provisions of the law establishing the Respondent and came to the conclusion that the employment of the Appellant with the Respondent had no statutory flavour and that the Appellant could only claim damages for wrongful dismissal or termination of appointment and not re-instatement or declaratory relief. Having thus found that the Appellant’s employment with the Respondent had no statutory flavour based on the evidence before him, both oral and documentary, the learned trial Judge’s dismissal of the claim of the Appellant was in order. Appellant in his reply brief submitted that it is not true that the Appellant’s employment with the Respondent did not enjoy statutory flavour in view of the following-
(a) The Pensions Act, 1990 was pleaded in paragraph 16 of the Respondent’s statement of defence in the court below.
(b) Respondent had relied copiously on sections 4(2), 12(1), 13(1) etc. at pages 5-6 of the Respondent’s Brief of Argument.
(c) The learned trial Judge had relied heavily on the provisions of the Pensions Act in his judgment at page 33 of the Record of Appeal.
Appellant’s Counsel went on to submit that the statement of the law in SHITTA-BEY’s case at page 4 of the Appellant’s Brief of Argument is that an employment enjoys statutory flavour when it is governed IN ANY ASPECT of it by statutory provisions as to appointment, termination or dismissal.
Appellant has submitted in paragraph 2.05 at page 5 of his Brief of Argument-
“that the question whether the Plaintiff’s employment enjoyed statutory flavour or not was not in issue between the parties at the trial court. The parties were in fact on common ground on it.”
This question was raised in paragraph 16 of the Appellant’s amended statement of claim where the Appellant pointedly contended that his employment with the Respondent enjoyed statutory flavour. This is contained at page 10 of the Record of Appeal. This was denied by the Respondent in paragraph 5 of the statement of defence. It is therefore not true as stated by the Appellant’s counsel that the Appellant and Respondent are ad idem on the issue that the Appellant’s employment enjoyed statutory flavour. The term “statutory flavour” simply means “covered by statute”. Thus, an employment will be taken as enjoying statutory flavour when it is covered or governed by statutory provisions in every material particular as to appointment of the employee, termination or dismissal and other sundry conditions.
In this respect, both Appellant and Respondent at pages 4 and 5 of their respective briefs of argument would appear ad idem. The Appellant was a Principal Lecturer with the Respondent and so one can rightly say he was an academic.
The Respondent is the Osun State College of Education.
Section 21(1) of the Osun State College of Education Law 1992 provides as follows:
“The rates of remuneration, scales of salary, contract additions, and other conditions of service for members of the academic administrative, professional and technical staff other than those mentioned in Part IV of this statute shall be as may be governed by the Governing Council.”
This provision is in no way ambiguous. What it simply means is that the conditions of service of academic, administrative, professional and technical staff who do not come under those referred to in Part IV of the law shall be determined by the Governing Council of the Respondent institution. Part IV covers such principal officers of the Respondent institution as Provost, Deputy Provost, Registrar and the College Librarian. Anyone not covered under Part IV must have his remuneration, salary and other conditions determined by the Governing Council. It has not been argued or remotely suggested that Appellant falls under the principal officers specifically covered by Part IV. The term”statutory” simply means some legislative body or organ and would certainly not include the Governing Council of the Osun State College of Education Ilesha. Section 21(1) of the Osun State College of Education Ilesha Law 1992 is presently re-enacted and is S. 23 of the Osun State College of Education Law 2002.
This law does not as has been seen provide for the condition of service of the Appellant not being one of the Principal Officers under Part IV of the law. The Governing Council of the Respondent institution is responsible for the Appellant’s condition of service and so the Appellant’s employment cannot be said to enjoy statutory flavour and the Appellant can only claim damages for wrongful dismissal or termination of employment and certainly not re-instatement. Issue 1 is therefore resolved in favour of the Respondent against the Appellant.
On issue 2, Appellant has submitted that from the pleadings and evidence the following are clear:
(1) That the Appellant was employed by Respondent in 1982 and was retired in 1999 after 24 years of service reckoned from 1975 when his pensionable service began.
(2) In the letter of appointment of the Appellant, the Respondent permitted the Appellant to transfer to it any previous service.
(3) That the Appellant was born on the 31st August 1944 and was therefore 55 years old in 1999 and thus had not attained the age of 60 years of retirement.
Appellant submitted that all this was very clear from Exhibit “A” especially paragraph 4 of Exhibit “A” which contained permission to transfer previous service and that his pensionable service started in 1975. He further submitted that even at the time of his retirement the service in Cocoa Research Institute of Nigeria anticipated by the Appellant’s employment letter had not been transferred a fact which he said was conceded by the Respondent’s sole witness.
Moreover he said, the issue about his tenure had arisen earlier and been resolved between the Appellant and the Respondent.
This according to the Appellant remained the position until two years later when the Respondent purported to apply a general circular directing that public servants who had spent 35 pensionable years in service should proceed on retirement which circular the Respondent applied to the Appellant and issued him (Appellant) a letter of retirement. The Appellant went on to further submit that the Respondent was in error to have calculated his retirement age from 1962. Counsel went on to say that DW1, the Respondent’s sole witness said under cross-examination that the Appellant had the option to transfer his service to the Respondent and that the freedom to so transfer is normally given to everybody employed by the Respondent, the aim being to preserve the pension benefits of the officer. Appellant’s Counsel stated further that DW1’s evidence as to whether there was anything to show that Appellant had transferred a previous service was that there was nothing in the file to show that the Appellant had transferred a previous service. Counsel was of the view that the evidence of DW1 was in his favour. It is the Appellant’s contention that he had neither attained either 60 years in age or 35 pensionable years when he was purportedly retired. Counsel went on to submit that the substance of the Appellant’s evidence was that his previous service (Pre 1975) was not permanent pensionable employment. Appellant’s Counsel went further to submit that S. 12 of the Pensions Act which provides that only continuous and unbroken service shall be taken account of as qualifying service with a provision for condonation of break in service fitted his position which was that his unbroken and continuous service which qualified as qualifying service began at the Cocoa Research Institute in 1975. The finding by the learned trial Judge that the Pensions Act did not help the Appellant was therefore difficult to understand and perverse Appellant submitted. Appellant’s Counsel also went further to submit that it was wrong for the trial court to resort to the application of section 4(2) of the Pensions Act which gives the Minister the power to require an officer to retire at any time after he had attained the age of forty-five thus making out a case for the Respondent when the Respondent’s sole witness had said in evidence that the Appellant was not retired on account of his personal age but on the application of Exhibit “F” on those who had spent 35 pensionable years in service. Appellant therefore urged the Court to hold that the Appellant’s purported retirement in 1999 was a nullity and that the Appellant remained in employment from 1975 till 2004 when he attained the age of 60 years being earlier than the 35 years stretch which terminates in 2010. Appellant also prayed to be accorded all the rights and privileges attached to his employment including payment of all salaries, allowances and emolument up to 31st August, 2004 when he attained 60 years of age.
Respondent for its part referred to Exhibit “E” the Employment Record filled by the Appellant when he was entering the services of the Respondent to the effect that he commenced his pensionable career in 1962 with the Ministry of Agriculture Western Region of Nigeria. Respondent’s Counsel submitted that by section 3 of the Pensions Law of Osun State 2002, Osun State adopted the provision of the Pensions Act for the pension of its officers in the public service and the Appellant was requested to retire from the services of the Respondent in 1999 after being adjudged to have spent more than 35 years in service. Respondent went further to state that by section 4(2) of the Pensions Act Laws of the Federation 1990 which is applicable to Osun State by virtue of section 3 of the Pensions Law of the State, the Minister (Governor in case of a State) 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 months notice of such retirement being given, the purport being that once an officer is over 45 years old such officer can be asked to retire. Respondent referred to section 12(1) of the Pensions Act 1990 which deals with break in service of an employee and submitted that although there were breaks in the service of the Appellant, the government of Osun State by virtue of its power to do so under the said section 12 of the Pensions Act disregarded the break in service of the Appellant and regarded his service as unbroken and continuous. Respondent reiterated that as at 1999 when the Appellant was retired he had put in over 35 years of service and he could not also say that he was not up to 45 years old nor was his contention that he had not been given three months notice.
An appropriate place to commence a discourse of this issue is by reference to Exhibit “E” – the Employment Record of the Appellant and so much of the evidence of DW1 that can shed some more light on it. It is FORM AF 3 and titled Oyo (now Osun) State College of Education Ilesha EMPLOYMENT RECORD and was tendered and admitted in the court below as Exhibit “E”. It shows in chronological order the places where the Appellant worked, period of service in each of such places, title of Post, Nature of work etc. The said Exhibit “E” shows that the Appellant was an Agricultural Assistant with the Ministry of Agriculture and Natural Resources Ibadan from 1962-1964. This fact is in consonance with paragraph 7 of the Amended Statement of Claim which amply sets out a table of the Appellant’s Employment Record. From 1964 to 1969 he worked with the same Ministry of Agriculture and Natural Resources Ibadan as an Agric Superintendent. That fact has not been controverted by the Appellant. Indeed it was admitted by him in his evidence-in-chief on the 11th March, 2003 which is at page 15 of the Record of Appeal although he gave the period when he was with the Ministry of Agriculture, Western Region as 1962-1967. He gave his date of birth in his evidence-in-chief at page 15 of the Record of Appeal as the 31st August, 1944. This date of birth is in consonance with the date given by the Appellant in paragraph 5 of his Amended Statement of Claim at page 8 of the Record of Appeal. DW1 is one Rev. Canon Moses Adegboyega Atoyebi. He as at the 24th October, 2005 when he gave evidence in the court below was the Deputy Registrar (Academics) of the Osun State College of Education Ilesha. According to DW1 in his evidence-in-chief, in 1997, all parastatals were directed to retire all employees who had spent 35 years in the service. That directive was contained in circular No. HS.6/12 dated 3rd March, 1999 and related to the Respondent institution where the Appellant was then working.
The circular was admitted as Exhibit “F”. According to DW1 in his evidence the employment of any person determined after 60 years or 35 years in service. He went on in his evidence to say that between 1962 and 1999 when Exhibit “F” came out is 37 years. The Respondent wrote to all affected staff including the Appellant who protested causing the Respondent to call for their files and after going through their files replied the Appellant through Exhibit “D” that he should proceed on compulsory retirement. Exhibit “D” was written by the Government and the Respondent had no option but to comply.
This piece of evidence was not destroyed by cross-examination.
Under cross-examination DW1 said that Appellant was not retired on the basis of age but by the stipulation in Exhibit “F” that officers who had spent 35 years of pensionable age should retire and Appellant had spent over 37 years. At this stage it is necessary to state that heavy weather and undue emphasis appears to have been placed on the age factor by the Appellant. What I understand the Respondent to be saying is that the Pensions Act, 1990 adopted by Osun State in 2002 makes provision for the Governor in the case of the State to retire any serving officer who had attained the age of 45 years provided 3 months advance notice is given and even on that ground alone the Appellant who was born in 1944 was as at 1999 when he was retired clearly above 45 years and would never have been able to challenge the retirement were that made the basis. Respondent’s evidence was that age was never a factor in retiring the Appellant but the fact that as per Exhibit “F” he had spent years in excess of 35 years in service.
That point should never have been over-flogged by the Appellant. Indeed section 4(2) of the Pensions Act reads as follows:
“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 months notice of such retirement being given.”
It should be reiterated for the umpteenth time that this provision was never evoked in retiring the Appellant. Section 12(2) of the Pensions Act as to break in service and condonation thereof was never brought into play in computing the Appellant’s period of service. What was paramount was that Appellant who by documentary evidence started to work with the Government in 1962 had by 1999 when Exhibit “F” was issued spent over 35 years in service. In fact, Exhibit “F” which is a Circular from the Office of the Secretary to the State Government and Head of Service copied to Hon. Commissioners, the Chairmen of Commissions, the Permanent Secretaries, Head of Non-Ministerial Departments, Heads of Tertiary Institutions (to which the Appellant incidentally belonged) and the General Managers and Chief Executives of Boards and Corporations and dated the 3rd March 1999 has as its heading “RETIREMENT OF OFFICERS WHO HAVE SPENT THIRTY FIVE (35) YEARS OF PENSIONABLE SERVICE”.
Although in the body of the circular reference was made to the issue that officers who had attained the age of sixty years should be made to retire, emphasis was undoubtedly placed on the need that officers who had had 35 years of pensionable years should retire. I think the question here is whether the period from 1962-1999 should be regarded as pensionable years of service as it affects the Appellant? Under cross examination DW had stated as follows: “Any employee who goes for further training will have all the years spent on the training as pensionable years.”
See page 21 of the Record of Appeal.
DW1 also said under cross-examination that although Appellant had spent about 24 years in the College (i.e. with the Respondent) it was discovered that Appellant had a length of previous service before his employment. The 2nd paragraph of page 2 of Exhibit “D”which is the letter of confirmation of retirement of the Appellant on the attainment of retirement after 35 years of pensionable service reads as follows:
“There is no gainsaying that Dr. Adegoke had used the existing date of 1st appointment (i.e. 1st January, 1962) to advantage. Such advantages included his placement on joining the College and his subsequent promotions. Abandoning 1st January, 1962 now in preference to the date he assumed duty in the College is like eating one’s cake and at the same time wanting to have it… In essence, Dr. Adegoke should proceed on compulsory retirement as he has served for more than 35 years.”
I cannot agree more with this assertion.
Issue 2 is therefore resolved in favour of the Respondent against the Appellant. Both issues for determination having been resolved in favour of the Respondent against the Appellant, the appeal fails and is dismissed and the judgment of T. O. Awotoye J. delivered on the 5th October, 2005 is hereby affirmed. I however make no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the draft of the judgment of my learned brother S. S. ALAGOA, J.C.A.
I agree with his reasoning and conclusions arrived at in holding that the appeal fails. The issues have been comprehensively dealt with, I adopt same as mine.
I also dismiss the appeal and affirm the judgment of the trial court and abide by the order as to costs in the leading judgment.
MODUPE FASANMI, J.C.A.: I read before now the judgment delivered by my learned brother S. S. Alagoa J. C. A.
The issues involved have been dealt with in details. I agree that the appeal lacks merit and it is accordingly dismissed. The Judgment of the lower Court delivered on 5th of October, 2005 is hereby affirmed. No order as to costs.
Appearances
M. O. Agboola Esq. with him M. Abiola (Miss) For Appellant
AND
Chief I. Ogundele For Respondent
