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: