FREDERICK IGHEDOSA AKINEDO & ORS V. EDO STATE GOVERNMENT & ORS
(2011)LCN/4523(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2011
CA/B/231/2001
RATIO
STATE/FEDERAL LAWS: WHETHER A STATE LAW PASSED BY STATE HOUSE OF ASSEMBLY AND ASSENTED BY A GOVERNOR CAN OVERRIDE A FEDERAL ACT
A state law passed by State House of Assembly and assented by a Governor cannot override a Federal Act and as such, such decision must be based on established procedure. See Psychiatric Hospital Management Board v. Ejetagha (2000) II NWLR (Pt 677) 154. PER AMIRU SANUSI J.C.A.
CONTRACT OF STATUTORY EMPLOYMENT: WHETHER A CONTRACT OF EMPLOYMENT HAVING STATUTORY FLAVOR MUST BE DETERMINED IN THE WAY AND MANNER PRESCRIBED BY THE RELEVANT STATUTE
A contract of employment having statutory flavor or one where the conditions for appointment or determination of such employment are governed by prescribed condition’s in the enabling statute so that a valid determination of appointment is predicated on the conditions stated in the statutory provisions. See Fakuode v. OAUTH (1993) 5 NWLLR (Pt 291) 47. This ipso facto means that where a person is appointed to an office through a particular procedure, such an appointee could only be removed from office through procedure specified by the law appointing him. See Longe v. FBN Plc (2006) 3 NWLR (967) 228. In the instant case the purported removal or retirement of the plaintiffs was not in accordance with the statute used in employing them or under which they were employed which duly specified at which age they can be removed or retired and not through the whims and caprices of the Council. Any employment which is protected by statute must be determined in the way and manner prescribed by the relevant statute and any other manner of termination/retirement of or removal from office of such employee which is inconsistent with the statute is therefore null, void and of no effect whatsoever. See Ibama v. SPDC Ltd (2005) 17 NWLR (Pt 954) 364; UBN Ltd v. Ogboh (1995) 2 NWLR (Pt 380) 647. PER AMIRU SANUSI J.C.A.
RETIREMENT OF PUBLIC SERVANT: WHETHER THE BURDEN OF PROVING REASONS FOR THE FORCEFUL RETIREMENT OF A A PUBLIC SERVANT IS ON THE EMPLOYER
…in the case of Psychiatric Hospital Management Board v. Ejetagha (supra) per Uwaifo JSC at page 160. “To force a public servant into retirement that is before he gets to his retirement age is an unusual action against him in his carrier. Such an action could, admittedly, be due to a variety of reasons including ill – health, redundancy, reorganization, retirement, inproductively 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 miscarriage of justice”. PER AMIRU SANUSI J.C.A.
JUSTICES
AMIRU SANSUI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-HEME Justice of The Court of Appeal of Nigeria
Between
1. FREDERICK IGHEDOSA AKINEDO
2. EWAEN GODFREDY UWAGBOE
3. PIUS ANYIADOR
4. J.O. AKENBOR
5 D.O. OSARENKHOE
(for themselves and on behalf of Local Government employees Retired on 30/9/2000) Appellant(s)
AND
1. EDO STATE GOVERNMENT
2. ATTORNEY GENERAL, EDO STATE
3. LOCAL GOVERNMENT SERVICE EDO STATE Respondent(s)
AMIRU SANUSI J.C.A. (Delivering the leading Judgment): At the Edo State High Court of Justice (the lower court for short) the present appellants filed an Originating Summons against the present respondents seeking the under mention declaratory and injunctive reliefs.
The reliefs are
(a) A Declaration that the decision of the Edo State Executive Council on 27th September 2000 reducing the retirement age of public officers in the State from 35 years of service and 60 years of age to 28 years of service and 53 years of age is unconstitutional, null and void and of no effect whatsoever having regard to the provisions of Pensions Act Cap. 346 of the Laws of the Federation of Nigeria 1990 and Section 210 of the Constitution of the Federal Republic of Nigeria 1999.
(b) A Declaration that the Edo State Government cannot apply pari passu the retirement ages prescribed by the Pensions Act and those laid down by the State Executive Council on 27/9/2000 as that will amount to double standard and therefore discriminatory.
(c) A Declaration that the retirement of the plaintiffs on the basis of that decision taken on 27/9/2000 by the Edo State Executive Council, is null and void and of no effect whatsoever
(d) An order setting aside the decision of the Edo State Executive Council on 27/9/2000 as it affects the plaintiffs on the ground that it was discriminatory against them in their application
(e) A Declaration that the plaintiffs are still in the service of the Local Government Service Commission and continue to be so until they retire either voluntarily or in accordance with the provisions of the Pensions Act.
(f) An Order that the defendants should forthwith reinstate the plaintiffs to their jobs.
(g) Perpetual injunction restraining the defendants by themselves, their servants, agents and privies from taking further steps to retire the plaintiffs prematurely or doing anything that will effect the employments and pension rights of the plaintiffs guaranteed by the Pensions Act, 1990 and the 1999 Constitution of the Federal Republic of Nigeria.
The facts giving rise to the filing of the Originating Summons against the defendant/respondent by the plaintiff are plain and straight forward. The plaintiffs and other colleagues of theirs, were employees of the Edo State Local Government service commission, but were forcefully retired from service by the 3rd defendants/respondents hereinafter to be refereed to simply as “Commission”. The said retirement was sequel to the Edo State Executive Council’s approval of the downsizing of the Edo State Public Service by applying the criteria of 53 years of age and 28 years of Service with effect from 30/9/2000. This decision of the Edo State government to retire the appellants/plaintiff s did not go down well with them, hence they filed Originating Summons at the lower court to challenge their retirements.
In response to the supporting affidavit annexed to the Originating Summons, the respondents filed counter affidavit and after being served with the counter affidavit the plaintiffs on the other filed a Reply to same. The lower court after the filing of affidavit, counter affidavit and Reply to counter affidavit by the parties learned counsel later took their own submissions. On 12/4/2001 the learned trial Judge delivered her considered judgment dismissing the plaintiff s suit in its entirety. Dissatisfied with the decisions of the lower court dismissing the suit, the plaintiff now appellant, filed an appeal to this court and to that effect filed a Notice of Appeal dated 4th March 2001 containing ten grounds of appeal. The original Notice of appeal was however amended with leave of this court granted on 5th of June, 2002.
The appellants herein, in keeping with rules and practice in this court filed the appellant’s Brief of argument on 17/6/2002 dated same day. Having been served with a copy appellant’s brief of argument, the respondent filed their joint Brief also on 16/8/2004 after his time to file same was extended by this court.
The appellants in their Brief or argument proposed five issues for the determination of the appeal, which read as follows:-
(1) Was the decision of the Edo State Executive Council on 27/9/2000 which lead (sic) to the premature retirements of the appellants, a decision on fiscal matters under Section 193(2) of the 1999 Constitution of the Federal Republic of Nigeria and if so, was its complementation not violative of Section 210 (1) and (2) of the same Constitution?
(2) Was the reduction in the retirement ages of the appellants not derogation from the provisions of Section 4 (1) and (2) of the Pensions Act and also S. 210(1) and (2) of the 1999 Constitution.
(3) In spite of the circumstances of their retirement, whether the appellants were entitled to three months pre-retirement Notice.
(4) Since Local government employees are paid from fund provided by the Federal Government whether they still constituted a financial burden on the Edo State Government.
(5) In view of the issues canvassed by the parties in this case and statutes referred to, whether the learned trial judge was right in refusing to grant the reliefs sought by the plaintiffs on the ground that granting the reliefs could create problems for the Edo State Government.”
In the Respondents’ brief of argument, two issues were formulated for the determination of the appeal which are reproduced hereunder:-
(a) Whether the decision of Edo State Executive Council to retire the plaintiffs due to the re-organization in the Edo State public service by applying the criteria of 53 years of age and 28 years of service, whichever was earlier as at 30th September 2000, is a violation of the plaintiffs rights under Section 3(I) of the Pensions Act 1990 and Section 210(I) and (2) of the 1999 Constitution?
(b) Whether Section 102 of the 1999 Constitution which empowers the Local Governments in Edo State to receive, revenue directly from the Federation Account made the Local Government Service Commission, Edo State sufficiently independent of the Edo State Government as to make the directive from the Edo State Executive Council to it to implement a fiscal policy like reduction in its Staff strengths, a nullity”
After closely looking at the issues raised by learned counsel to the parties, I am convinced that the issues raised in the appellants’ brief of argument have adequately subsumed the two issues raised in the joined respondents’ brief. I shall therefore be guided by the appellant’s brief in treating this appeal. I shall while doing so consider Issues Nos. 1, 2, and 3 together and later consider issues 4 and 5 together if the need arise.
Issues 1, 2 and 3
The learned appellant’s counsel submitted that the learned trial judge was wrong when she held that the decision of the Edo State Executive Council (hereinafter called “the Council”) did not contravene the Pension’s Act, the Constitution of the Federal Republic of Nigeria or any law for that matter in its decision to prematurely retire them in order to downsize the public service. He said most of the answers given by the trial judge to justify the decision of the Executive Council were not even canvassed before her by the parties learned counsel. The appellant’s counsel also referred to the trial court’s opinion that that the decision of the Council to reduce the staff strength of public service of Edo State by using the question of age as a criterion based on or related to such fiscal matter which was rightly taken. He further submitted on this point that by Section 193 (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria, the Executive Council of a state is only vested with power to determine the general direction of the services of the government of that state. To that extent according to the learned counsel for the appellant, any decision aimed at reducing the size of the public service of a state, could be regarded as a decision on fiscal matter in so far as the sole intension is to increase or reduce the cost of running the public service of the state. The learned appellant’s counsel however conceded that the Constitution did not provide modus operandi to adopt in achieving or bringing about the aim of the decision arrived at by virtue of Section 193 (2) of the same Constitution. He added that a decision to reduce staff strength of state public service is a decision which must definitely affect the pension’s rights of the public servants to be removed or to be retired compulsorily.
Learned appellants’ counsel went further to argue that Section 210(1) of the 1999 Constitution provides protection on pensions rights of a public servant and as such pension rights such as pension or gratuity shall be regulated. In the learned counsel’s opinion, the decision of the Council did not protect the pension’s rights of the appellants but has instead altered the pension benefits of the appellants to their disadvantage and also that it is in contravention of Section 210 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. He said also that any termination of appointment made in breach of Section 4 of the Pensions Act is invalid. See the case of PHMB C. Ejetagha (2000) II NWLR (Pt. 677) 154 at 160. He said the Council’s decision to retire the appellants prematurely on the basis of age criterion is null and void and also unconstitutional as it offends the provisions of Section 210(I) and(2) of the 1999 Constitution.
On the age criterion adopted by the Council to down size the public service by prematurely retiring the appellants, the learned counsel submitted that the Edo State Government had earlier adopted the Federal Government Provision on the recommendation of review panel in civil service reforms which fixed the ages of retirement of public servants to 60 years or 35 years of service. As at the 27th September, 2000 when Edo State public service decided to reduce the retirement age, it acted against or in contravention of the law by reducing the age of retirement to 53 years of age and 28 years of service and that decision contravenes the Pensions Act. He said from whatever angle one looks at it the new age criterion set by the Edo State Executive Council amounted to amendment of the Pensions Act as it is a violation of the retirement ages provisions in Section 4 of the Act. A state law passed by State House of Assembly and assented by a Governor cannot override a Federal Act and as such, such decision must be based on established procedure. See Psychiatric Hospital Management Board v. Ejetagha (2000) II NWLR (Pt 677) 154. In yet another submission, the appellants’ Counsel contended that the Council’s decision was ultra virus the Council’s powers and therefore null and void and of no effect whatsoever.
Then on whether the appellants were entitled to three months retirement notice as prescribed in Section 4 (2) of the Pensions Act, it was submitted on behalf of the appellants, that in view of the nature of the reliefs sought in the Originating Summons, it was not necessary for the plaintiff/appellant to seek the relief on lack of notice, as the trial judge could have granted it under relief (a) since refusal to give three months notice to the appellant amounts breach of the provisions of Section 4 (2) of the Pensions Act. He added that the learned trial judge was in error in deciding that the appellants were not entitled to three months notice in view of Section 3(I) (c) of the Pensions Act, hence Section 4(2) of the said was not breached. The learned counsel further submitted that all forms of retirements must proceed under the provisions of Pensions Act, while Section 3 of that Act merely deals with categories of retirements for purposes of pension and gratuity. Therefore, Section 3 of the Act is dependent on Section 4 of the Act. He cited and relied on the dictum of Uwaifo JSC in the case of Psychiatric Hospital Management Board v. Ejetagha (supra) at pages 162-164. Paragraph H to A.
Replying to the above submissions of the appellants’ counsel, the learned counsel for the respondents submitted that the trial judge was right in holding that the retirement of the appellant due to reorganization in the public service of Edo State did not violate the provisions of the Constitution or the Pensions Act Cap 346 of 1999. He referred to Section 3(I) (c) of the Pensions Act. He said that rather the whether retiring the appellants (as per Exhibit A) is in keeping with the provisions of Pensions Act as it is for the purpose of Reorganization and Restructuring of the Public Service of Edo State. He stated that the situation in the instant case differs from the one envisaged in Section 4(2) of the Pensions Act, hence the issue of giving three months notice does not arise. The respondent’s counsel further argued that the decision of the Council to reduce the staff strength in the state public service was of general application to officers who fell within the age bracket of 53 years age or who put in 28 years service whichever is earlier and was not aimed at witch-hunting the appellants but merely to reorganize the public service and infuse new blood into the service. He then urged this court to adopt liberal interpretation of the provisions of Section 3(I) (c) of the Pensions Act 1990 and give ordinary meaning to it, since wherever there is a right there must be remedy.
With regard to the provisions of Section 210(2) of the 1999 Constitution, it was submitted on behalf of the respondents that the said provisions have not been violated, by the council on its decision, adding that the right granted under the said provisions is not absolute suspension of size can be effected or exercised where a law permits doing so especially where such reduction of the size the public service through retirement of the staff is aimed at facilitating improvement on the officers out put or in order to enhance greater efficiency or to boost the service delivery in the public service as in the instant case. Such action or decision of the council and by extension of the Edo State government did not, accordingly to the learned respondent’s counsel, violate or amend the provisions of the 1999 Constitution or the Pensions Act of 1990.
I think it will be apt to state here that what perhaps triggered the filing of the suit at High Court through Originating Summon by the appellant then plaintiffs was the letter addressed for written or written to the plaintiffs individually on behalf of the third respondent, then defendant. The contents of the letter read thus:
RETIREMENT AND RE-ORGANIZATION OF PUBLIC SERVICE OF THE STATE
1. “I am directed to refer to the letter No. OGD/248/1 of 29th September, 2000 from the Secretary to the State Government on the above subject matter and to inform you that the Edo State Executive Council at the one hundred and fifty-first meeting held on the 27th September 2000, approved the downsizing of the State Public Service by applying the criteria 53 years of age and 28 years of service, whichever was earlier as at 30th September, 2000.
2. Based on the above and your service records I am further directed to inform you of your retirement from the Unified Local Government Service with effect from 30th September 2000.
3. You are hereby requested to hand over your duties and Government properties in your possession to your immediate Subordinate/Head of Department, please.
4. I wish you happy retirement. (Sgd) A.P. Esamah Director of Personnel Management for Chairman, Local Government Service Commission, Benin City.”
It is based on the service of the above letter on the plaintiffs that they filed Originating Summons against the defendants/respondents seeking the declaration adumbrated above. It is common ground between the parties that the respondents decided to retire the appellants following the Edo State Executive Council of decision to down size the public service and sequel to that they devised a criterion of abridgment of age civil servant from 60 to 53 and years of service from 35 years to 20 years. Issues were however joined by in their affidavit as counter affidavit as Reply to Counter Affidavit. I will therefore reproduce some of the relevant averments therein.
The plaintiffs while challenging the letter of retirement deposed as follows:-
PARAGRAPHS
“4. That the named plaintiffs in this suit bring this action for themselves and on behalf of all local government employees in Edo State who were retired on 30/9/2000 following the decision of the Edo State Executive Council on 27/9/2000 reducing the retirement ages of public servants in Edo State.
5. That the appointments of all the plaintiffs affected by the decision had statutory flavor.
6. That until our purported retirement we were employed in the Unified Local Government Service in various Local Governments in Edo State.
7. That I am aware that by the provisions of the Pensions Law Cap. 115 Laws of Bendel State of Nigeria 1976 applicable in Edo State, the Pensions Act, a Federal Legislation applies in Edo State. The provisions of the Pensions Act prescribe the retirement ages for persons in the public service of the Federation and by extension, Edo State.
8. That by circular letter No. SHA.7/5/1 of 16/3/99 signed by the former Head of Service, Dr. S.A.A. Okpaise, the Edo State Government restated the retirement ages of persons in the public service of Edo State as 60 years of age or 35 years of service whichever is earlier. A copy of the circular is attached herewith and marked Exhibit ‘B’.
9. That the Local Government in Edo State (sic) are part of all Local Government in Nigeria which constitute a third tier of governments in the country. They receive direct funding from the Federation Account just like the State Governments. Local Governments in Edo State share from the percentage allocated to Local Governments from the Federation Account.
13. That the reduced retirement ages of 28 years service and 53 years of age whichever is earlier laid down by the Edo State Executive Council on 27/9/2000 is in conflict with the ages of 35 years of service and 60 years of age prescribed by the Pensions Act which also applies in Edo State.
14. That the plaintiffs were not given any notice nor paid any salaries in lieu of notice before they were compulsorily retired. The plaintiffs and their families have since then been thrown into unexpected hardship.
15. That after the plaintiffs were compulsorily and unlawfully retired they held a meeting on 24/10/2000 at the end of which they issued a communique. A copy of the communique which was served on the defendants is attached herewith and marked Exhibit ‘C’. The defendants did not react to it.
In reply to the above averments the Defendants/Respondents filed Counter Affidavit wherein they averred inter alia as below:-
4 (b) That the 3rd Defendant is a creation of the 1st Defendant.
(c) That members of the 3rd Defendant responsible for the day to day operation of the 3rd Defendant are appointed by the State Government.
(d) That the plaintiffs being Public Officers are subject to the authority of the 1st Defendant.
(e) That the Plaintiff were compulsorily retired from the Service of the 3rd Defendant in a re-organization exercise carried out in the Public Service of the State.
(f) That the Plaintiffs are being paid all their entitlements including gratuity and pensions.
(g) That the Local Government Councils in the State are creation of the 1st Defendant.
(h) That there is a revenue allocation committee in the State responsible for the allocation and sharing of the Local Government Council’s allocation from the Federal accounts.
(i) That the said revenue allocation committee was set up by the 1st Defendant.
(j) That the re-organization was carried out to enable Government inject new blood into the Public Service of the State.
(k) That the re-organization in the Public Service is not a continuous exercise but for the purposes of facilitating improvement in the 3rd Defendant so that greater efficiency and economy may be affected.
(l) That the criteria for the compulsory retirement were 28 years of service and 53 years of age.
(m) That the criteria are not an amendment to the Pension Act.
But in further Reply to the defendants/respondents counter affidavit the plaintiffs/appellant filed REPLY TO COUNTER AFFIDAVIT to meet what the defendants averred in the Paragraphs 4(a) to (m) of their counter affidavit. See paragraphs 5 to 9 in the Reply reproduce below:-
REPLY TO THE COUNTER AFFIDAVIT
“5. That the plaintiffs admit paragraphs 4 (a), (c), (h), (i) and (l) of the Counter-Affidavit but deny paragraphs 4(b), (d), (e), (f), (g), (j), (k), and (m) of the said counter-affidavit.
6. That the existing Local Governments in Edo State and other parts of Nigeria were created by the then Federal Military Government and entrenched in the Constitution of the Federal Republic of Nigeria 1999.
7. That it is not true that the Edo State Government exercises authority over the plaintiffs in matter of appointment, promotion, disciplinary retirement. These are matter exclusively for the Local Government Service Commission.
8. That it is not true that retirement benefits have been or are being paid to the plaintiffs.
9. That there are others who are older than the plaintiffs on grounds of age and number of years of service who are still serving in the public service of the State.
In the first place it is not in dispute that the retirement of the appellants was in compliance with the directive of the Edo State Executive Council, though as a result of the Council’s decision to reorganize and downsize the public service and in doing so it chose to apply the criteria of age and years of service as I have earlier stated. The interesting question is “Does the Executive Council of Edo State have power to compulsorily retire” the plaintiffs for the aim or purpose of indicated as the reason for its action?
The plaintiffs now appellants are employees of Local Government Service Commission. They therefore fall under Unified Local Government Service. Their employment was governed by the Unified Local Government (Staff) Regulations 1977 and Pensions Laws. Under these laws, regulation, and the Pensions Act 1974 and 1999, the prescribed retirement age is sixty years of or 35 years of service. See also Local Government Law of Edo State of 1980, the Unified Local Government Service (Staff) Regulation 1977 and the Pensions Act of 1974. It is instinctive to note that the provisions of the Laws mentioned supra stipulated the retirement age of 60 years or 35 years of service which were also adopted by the Federal Government itself vide its circular No. 863216/x.vx of 20th August, 1999 and that same circular was also adopted by the Edo State Government vide its circular No. SHA.7/5/1 of 16th of March, 2000. To my mind, that is the extant position of the law on retirement age of civil or public servant. I am not unaware of the overzealousness of the Edo State Executive Council to reorganize or restructure its public service and thereby downsizing it, but that notwithstanding, and its use of criterion of age by abridgment to my mind, runs riot and violent to the provisions of the laws or statutes cited above. In fact by the provisions of Section 4 of Pensions Act 1999, every officer shall retire upon attaining the age of sixty years or however that for officers on or before 31st March, 1977, the compulsory retiring age shall be fifty five years. However, by the provisions of Section 4 (2) of the Pensions Act 1999, if a public office likes the appellants in this case, are to be retired before attaining the age of sixty years, three basis conditions must be fully satisfied or complied with, namely:-
(a) The officers to be retired must be requested to retire from the service by the appropriate retiring authority or person so delegated.
(b) Such officer must have attained the age of forty five years.
(c) The officer must be given three months notice in writing that he is so required to retire but NOT three months salary in lieu of notice.
The above adumbrated conditions must co-exist and all of them must be duly complied with. Again, the letter of premature retirement must show on its face that it was issued by the minister or officer duly authorized by him failing which the purported premature retirement becomes null, void and of no effect. See Wilson v. AG of Bendel State (1985) 1 NWLR (Pt 4) 572; PHMB v. Ejetagha (supra). I have reproduced copy of the letter of the purported retirement of the plaintiffs supra in extencio. On the face of it, I am unable to say that the conditions for premature retirement of the plaintiff were duly compiled with at all. The retiring authority herein did not state or show under what statute it acted. In fact, it did not act under any Law or statute but simply under the directive or circular emanating from the Executive Council which I am afraid does not and can not have the force of law but is rather in breach the laws mentioned above and even contrary to the circular it issued earlier adopting the retirement age and years of service. The Council’s decision can not have force of law, unless it is reduced or promulgated into law, and even when such is done, it will be void to the extent of inconsistency with the provisions of a Federal Act. See Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria. Certainly, the nature of employment of the appellants/plaintiffs as public servants had statutory flavor as their employment is provided for in a statute plus condition of service agreement. See Nigerian Gas Co. Ltd v. Dudusola (2005) 18 NWLR (Pt 957) 292; Iderima v. RSCSC (2005) 16 NWLR (Pt 951) 378; Shilla-Bay v. Federal Republic Service Commission (1981) 1 SC 40. A contract of employment having statutory flavor or one where the conditions for appointment or determination of such employment are governed by prescribed condition’s in the enabling statute so that a valid determination of appointment is predicated on the conditions stated in the statutory provisions. See Fakuode v. OAUTH (1993) 5 NWLLR (Pt 291) 47. This ipso facto means that where a person is appointed to an office through a particular procedure, such an appointee could only be removed from office through procedure specified by the law appointing him. See Longe v. FBN Plc (2006) 3 NWLR (967) 228.In the instant case the purported removal or retirement of the plaintiffs was not in accordance with the statute used in employing them or under which they were employed which duly specified at which age they can be removed or retired and not through the whims and caprices of the Council. Any employment which is protected by statute must be determined in the way and manner prescribed by the relevant statute and any other manner of termination/retirement of or removal from office of such employee which is inconsistent with the statute is therefore null, void and of no effect whatsoever. See Ibama v. SPDC Ltd (2005) 17 NWLR (Pt 954) 364; UBN Ltd v. Ogboh (1995) 2 NWLR (Pt 380) 647. It is even interesting to note that the retirement of the plaintiffs was not shown to be based on any allegation of misconduct proven against them but merely on the lame excuse of reorganization or downsizing the public service of the state and age criteria was applied by the Council.
The learned trial judge on page 56 of the record had this to say.
“I do not think it is right to regard the age criteria used by Government as amounting to a reduction in the statutory age of retirement as prescribed by law. It requires an amendment to the Pensions Act, the Pensions Law and Regulations to reduce the retirement age prescribed by them. It takes more than a DECISION of the Executive Council of the State to effect to amendment.
The matter of Pensions is item 45 in the Exclusive Legislative List and therefore requires an Act of the National Assembly to amend the Pensions Act which admittedly, is applicable in Edo State. But what happens here is not an amendment to the Statutory retirement age provisions, but employing the lower age limit as CRITERIA or yardstick in determining the category of public officers that Government intended to disengage from the public service in its reorganization exercise. The compulsory retirement age is still intact as it can not be altered by the decision of Government but by a law duly promulgated. The DECISION of Government did have the effect of amendment to the Pensions Act.”
From the above finding of the lower court, one can say that the trial judge blew hot and cold at the same time or in other words he approbates and repopulates at the same time. While, conceding that amendment of the Pensions Act which is an item within the Exclusive Legislature List could only be amended by a National Assembly Act, she still felt that the decisions to reduce the age of retirement prescribed by the Pensions Act through a decision of the Executive Council of Edo State, did not amount to an amendment simply according to her, because the Council’s decision was intended to use lower age limit criterion or yardstick to determine the category of public servants, the government intended to disengage from its service in the name of reorganization. But in her last sentence quoted above she concluded that “the decision of Government did have the effect of an amendment to the Pensions Act’. Now, even if it is true that the age limit criterion was introduced as yardstick in determining the category of public officers that the government wanted to disengage from its service in the name of reorganization, why should the category of the appellant be the only victim of the reorganization bearing in mind the fact, that both parties agreed that there were some public servants who were older in age than then the plaintiffs but yet were not served with the retirement notice or affected by the decision of the Edo State Government. In my view, the decision of the reduction of age as a means of reorganization applied on the plaintiffs/appellants is selective, discriminatory and is also ultra virus the powers of the Council (the third defendants/respondents.).
Another point worth consideration is the defendants/respondents contention that the retirements of the plaintiffs by them were predicated on the circumstances covered by Section 3 (1) (c) the Pensions Act. The said provisions read thus:
Section 3 (1)
“No pension or gratuity shall be granted under this Act to any officer except on his retirement from the public service in any of the following circumstances, that is:-
(a) not relevant
(b) not relevant
(c) on compulsory retirement for the purpose of facilitating improvement in the organization of officers department or ministry so that greater efficiency or economy may be effected”.
The cardinal point here is that the same Pensions Act under which the defendant claimed to have purportedly based its action on or find solace on in the retirement exercise had by its Section 4 (1) clearly specified the age of retirement and/or years of service. But in present case, the plaintiffs/appellants were purportedly retired on ground of their ages or years they spend in service which was reduced by the respondents, as the yardstick even though the reasons given was the so called reorganization. The new age brackets given for such exercise besides being in conflict with the statutory age provided under Section 4 (1) of the Act, it was also not applied to all public servants but merely on the appellants and perhaps few others since the respondent, even conceded to that in their counter affidavit. I therefore do not share the learned trial judges’ view, that such exercise was not discriminatory or selective. It has also not been shown by the defendants/respondents that the compulsory retirement of the plaintiffs/appellants based on the reduction of age or years of service was really done for the purpose of improvement in of the public service or meant to enhance great efficiency or economy. Even if the exercise by the State Executive Council was reduced or promulgated into law, it can not superseded the provisions of the Pensions Act which it had earlier adopted and thus binding on it. It is my considered view therefore, that the action of the Commission and by extension of the Council in retiring the appellant’s compulsorily had exceeded its powers and was also not done in good faith. It is therefore null, void and of no effect as it was not covered by the provisions of Section 3(1) (c) of the Pensions Act.
It is noted by me, that the learned trial judge opined that the plaintiffs/appellants were not entitled to three months notice as provided in Section 4 (2) of Pensions Act 1990. The reasons on which she based that opinion is shown on pages 67 to 69 of the Record to include the followings:-
(i) that the appellants were retired under Section 3 (1) (c) of the Pensions Act.
(ii) that three months notice is only given to public servants who attained the age of 45 years, and that since the appellants did not establish that they attained such age, then they were not entitled to such Notice.
(iii) that no relief was claimed by the appellants as part of reliefs they sought.
I think the reasons given by the learned trial judge on as summarized above, is untenable and unsupportable. In the first place and as I said several times above, the compulsory retirements of the appellants were based on their ages. They must have therefore fallen under the new age bracket criterion introduced by the Council before being compulsory retired. It is therefore implied, that they were all above the age of forty five years. Even with regard to the 28 years of service, it can be rightly assumed that whoever put up twenty eight years serve must have attained the age of at least 45 years since under the Labour Code, the employable age is 17 years which if added to 28 years would fetch 45 years. The appellants in their pleadings in affidavit averred that they were retired simply because they fell within that age bracket criterion. Having averred that, the burden then shifts on the defendants/respondents to debunk that they were not entitled to the give them the 3 months notice because appellants or any or any of them did not attain 45 years of age. There was no such counter proof from the defendant. It is therefore not correct for the learned trial judge to place such burden of proof squarely on the plaintiffs alone. The trial court held that the retirement exercise done by the defendant was done pursuant to Section 3 (1) (c) of Pensions Act which according to her, did not require three months notice to be given to the plaintiffs/appellants. A close and dispassionate perusal of those provisions merely clearly shows that it relates to that they merely relates to situations or circumstances upon which pension and gratuity are payable to a retiring public servant. The circumstances provided in those provisions (i.e. Section 3 (1) (c) of the Pensions Act) and all other types of retirement are governed or covered by the provisions of the Section 4 of the Pensions Act.
Thus, while Section 3 of the Act deals with various categories of retirees for purposes of payments of pension and gratuity, Section 4 deals merely with other or all forms of retirements. In any case, I have in the fore paragraphs of this judgment, stated that under Section 4 (1) of the Pensions Act, the age of sixty years is the retirement age of a public officer/servant even though such officer/servant can be retired before attaining such age under some condition or after satisfying some conditions provided in Section 4 (2) of the Act one of which is three months notice in writing to be given to such officer requiring him to retire from service. Failure to comply with the provisions of Section 4 (2) of the Act would render the purported retirement null void and on no effect. In fact the Supreme Court had this say on forced retirement, in the case of Psychiatric Hospital Management Board v. Ejetagha (supra) per Uwaifo JSC at page 160.
“To force a public servant into retirement that is before he gets to his retirement age is an unusual action against him in his carrier. Such an action could, admittedly, be due to a variety of reasons including ill – health, redundancy, reorganization, retirement, inproductively 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 miscarriage of justice”.
I think by this dictum of the learned jurist of the apex court one can say he had said it all on the action of the present defendants/respondents. Their purported premature retirement of the plaintiffs runs riot and violent to the Provisions of Pensions Act which therefore rendered such action or exercise illegal, unlawful, unconstitutional and was made in bad faith. In the result, therefore I resolve issues 1, 2, and 3 in the appellant’s brief of argument in their favour.
Thus, having resolved the first, second and third issues for determination in favour of the appellants herein and against the respondents which I am convinced are the core issues canvassed in the appeal. I do not deem it apposite to consider issues 4 and 5 as doing so could merely server academic purpose.
On the whole, I adjudge the appeal meritorious. It succeeds and is accordingly allowed by me. I grant all the reliefs sought by the plaintiffs i.e. reliefs (a) (b) (c) (d) (e) and (g). Relief (f) which had earlier been withdrawn is accordingly refused and struck out. The judgment of the lower court delivered on 12th April, 2001 is therefore hereby set aside.
GEORGE OLADEINDE SHOREMI J.C.A.: I have had the privilege and advantage of reading in advance the Judgment of my learned brother AMIRU SANUSI JCA. I agree entirely with the reasoning therein and the conclusion arrived at.
To have placed the burden of proof on the appellant is wrong and this had led to a miscarriage of justice. SEE: PSYCHAIATRIC HOSPITAL MANAGEMENT BOARD V. EJETAGHA. The Pensions Act must not be read in isolation. Is therefore grant all the relief sought by the plaintiffs i.e. reliefs.
(a) (b) (c) (d) and (g), relief (f) which had earlier been withdrawn is struck out. The judgment of the lower court delivered on 12th April 2001is set aside.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) JCA: I have had the advantage of reading in draft the Judgment delivered by my learned brother AMIRU SANUSI JCA. I entirely agree with him that the appeal is meritorious and same is hereby allowed. I abide by the orders contained in the lead Judgment and that the Judgment of the lower court delivered on 12th April, 2001 is hereby set aside.
Appearances
Iredia Osifo Esq.
Miss Tessy Akenbor.For Appellant
AND
For Respondent
