Joseph Achimugu V. Hon. Minister of Federal Capital Territory & Anor (1998)
LawGlobal-Hub Lead Judgment Report
EJIWUNMI, J.C.A.
This action was commenced by the appellant in the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/M/771/93, brought an application under Order 43 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 1991 for the judicial review of the dismissal of the appellant from the services of Federal Capital Development Authority.
At the hearing, though the 1st respondent was duly served, did not appear nor was it represented by counsel. Having listened to the argument of counsel for the appellant and the learned trial Judge upheld the reliefs sought for by the appellant, as he held thus:-
“In the light of all the above, I have no alternative other than to grant the applicant’s reliefs. The purported dismissal of the plaintiff/applicant’s appointment as an Estate Officer III is null and void and I so declare. The applicant, Mr. Joseph O. Achimugu, should be reinstated to his office with effect from 12 September, 1989 when he was purportedly dismissed from the services of the respondent. The applicant’s re-instatement should be without any domination in his status or salary. It is also hereby ordered that the applicant’s salaries, allowances and other entitlements be paid to him with effect from 12th September, 1989. The applicant is declared to be still an officer in the services of the respondent.”
After that ruling against which neither party has appealed, the appellant there took out an originating summons against the respondent in the High Court of the Federal Capital Territory, Abuja, wherein he asked for the determination of the following questions:-
(1) Whether the plaintiff, a civil servant whose appointment has a statutory flavour and governed by the Federal Civil Service Rules, can have his appointment terminated by the first defendant offering to pay him 3 months’ salaries in lieu of notice?
(2) Whether the plaintiff falls within the category of Federal Government employees whom the Pensions Act, 1979 applies to his employment?
(3) If the answer to question 2 is positive, whether the plaintiff is entitled to gratuities and pension on the termination of his appointment?
(4) Whether the termination of the plaintiff’s appointment aforesaid in question No. 1 amounts to breach of his contract of service as governed by the Federal Civil Service Rules for which he can be compensated in damages as alternative to re-instatement.
(5) If the answer to question No.4 is positive, what is the quantum of damages?
(6) What amount is payable to the plaintiff as pension and gratuities?
In support of the originating summons a seven paragraphed affidavit was sworn to by one Kate Akpan, a law clerk in the chambers of Karina Tunyan and Co., Abuja, wherein she stated inter alia in paragraphs 5, 6, 7 & 8 of the said affidavit:-
Para. 5 That Karina Tunyan Esq. of counsel informed me and I verily believe him that, it will accelerate the hearing and proper determination of this suit if the entitlements of the plaintiff on retirement are spell out.
Para.6 That going by figures on Exhibit “C” the plaintiff’s entitlements as at 1994 per annum are as follows:-
(i) Basic Salary N18, 768.00
(ii) Rent Supplement N10, 510.00
(iii) Transport Allowance N2, 448.00
(iv) Utility and Meal subsidy N1.380.00
Total N33.106.00
Para. 7 That Karina Tunyan Esq., of counsel informed me of the following facts which I verily believe to be true:-
(i) At the time of termination of the plaintiff’s appointment, he still had 28 years to serve before attaining the age of 60 years.
(ii) The plaintiff’s salaries and other entitlements for the 28 years amount to N926, 970.24.
(iii) The plaintiff is entitled to 30% of his final pay as gratuity for service above 30 years which in this case amounts to N99, 318.24.
(iv) The plaintiff is entitled to 70% of his final pay which in this case amounts to N23, 174.25 per annum.
For the 1st defendant, a counter-affidavit was deposed to by a Frank Enekebe who described himself as the Director of Personnel Services MFCT. By the said affidavit the deponent admitted that the applicant was once a staff of the MFCT, but had been dismissed. However, following a court order he was reinstated by the order of the court. He also deposed further in paragraphs 7, 8, 9 and 10 of the said counter-affidavit. They read thus:-
Para. 7. That it is not true that the said J.O. Achimugu filed any request for retirement as deposed to in paragraph 6(vii) of the affidavit of Miss Kate Akpan as same would have been passed to me as the Director of Personnel Management (MFCT) for consideration,
Para. 8. That I know as fact that his appointment was terminated by a letter dated 27th July, 1994 a copy of which is exhibited in the affidavit as Exhibit “F”.
Para. 9. That the mode adapted in terminating his appointment is in accordance with his letter of employment.
Para. 10 That the plaintiff is not entitled to the claim in paragraph 7 of the affidavit since his appointment was terminated in accordance with the rules and regulations guiding his employment.
The learned trial Judge after he had been addressed upon the various issues raised by originating summons delivered a considered judgment. By that judgment the learned trial Judge came to the following conclusions:-
(a) That the plaintiff was compulsorily retired by virtue of the provisions of section 3(1)(b) of the Pensions Act.
(b) That as the plaintiff was compulsorily retired, at the age of 42 years before attaining the minimum age of 45 years prescribed for the compulsory retirement of a civil servant by virtue of section 4(1) of the Pensions Act, he is entitled to his salary for the period of 3 years, that was denied him upon being so retired.
(c) That the learned trial Judge therefore, awarded to the plaintiff the sum of N104, 010.20 being his salary for 3 years at N33, 106.08 per annum and N4,692.00 being three months in lieu of notice.
(d) The learned trial Judge also awarded as gratuity the sum of N26,275.20 having regard to the provisions of section 1 (1) of the Pensions Act Cap 346 of the Laws of the Federation of Nigeria.
(e) The prayer for the award of pension was however, rejected.
(f) The plaintiff was therefore awarded the total sum of N130, 285.40 with the costs in the sum of N200.00.
Being dissatisfied with part of the judgment and orders of the lower court, the plaintiff has appealed to this court. Pursuant thereto, he has filed a notice of appeal upon the following grounds of appeal:-
(i) The learned trial Judge misdirected himself on the facts when he held that the plaintiff had served for only 14 years at the period of the termination or retirement.
PARTICULARS OF MISDIRECTION-
(a) It is on record that the plaintiff was employed by 1st respondent on 4th of July, 1979.
(b) His appointment was terminated on 27th of July, 1994.
(c) It is inconsistent to hold that the plaintiff is deemed to have been retired compulsorily at the age of 45 and at the same time hold that he served for 14 years at the period (sic) of termination of his appointment.
(ii) The learned trial Judge erred in law when he held that the right to pension starts only after an officer served 15 years.
(a) An officer compulsorily retired after serving for a minimum of 10 years in the civil service is entitled to draw his pension immediately.
(b) An officer who has served for more than 10 years, but retires before attaining the age of 45 is entitled to draw his pension on attaining the age of 45 years.
Ordinarily, it would not have been necessary to set out the appellant’s ground of appeal. But I have to draw attention to the grounds of appeal, particularly ground 2 thereof, a careful reading of that ground reveals that it is not clear whether paragraphs (a) & (b) following the said ground form part of the ground of appeal, or they were to fulfill some other function which the learned counsel for the appellant had not considered necessary to spell out. I think it is proper to observe that grounds of appeal ought to be framed with particularity so that the purport of the complaint of the appellant would not be left in limbo. As no objection was raised to the said second ground of appeal it will be considered along with the other ground of appeal filed, in accordance with the rules of this court. Briefs were filed and exchanged.
Upon these grounds of appeal the learned counsel for the appellant raised these issues for the determination of the appeal:-
(1) Whether the plaintiff has served for more than 14 years at the time of his retirement.
(2) Whether the right to pension starts only after an officer served for 15 years.
The 1st respondent, by its learned counsel filed on its behalf the first respondent’s brief. In that brief similar issues as those in the appellant’s brief were raised.
With regard to issue (1) it is the contention of the appellant that the affidavit evidence before the court is that the appellant had served the Ministry of the Federal Capital Territory for 15 years when he was terminated on the 21st of July, 1994. It is also further contended for the appellant that as this averment was not contradicted by the 1st respondent’s in the counter-affidavit filed, it must be presumed that the assertion of the appellant that he had served the Federal Capital Territory for 15 years stands in support of that contention, he refers to Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265; (1990) 1 S.C.N.J. 56; Agbaje v. Ibru Sea Foods Ltd (1972) 5 S.C. 50 at 55. He therefore submits for the appellant that if the learned trial Judge had properly directed himself upon the affidavit evidence before him, he couldn’t have held that the appellant served the Ministry of Federal Capital Territory for only 14 years prior to the termination of his appointment.
It is the further contention of learned counsel for the appellant that the learned trial Judge having held that the appellant was deemed to have been retired under section 3(1)(b) of the Pensions Act at the age of 45, it is illogical to hold at the same time that he served only for 14 years at the time of his retirement.
In its reply to the contention of the appellant learned counsel for the 1st respondent submits that there is no merit in the contention of the appellant that the learned trial Judge was wrong to have held that the applicant had served the 1st respondent for a period of 14 years only. He concedes it that the appellant had claimed he served the 1st respondent for 15 years but submits that having not given the precise date of his original employment the facts available support the view held by the learned trial Judge that he had served the 1st respondent for only 14 years before his services was terminated. For this submission reliance is placed on section 149(d) of the Evidence Act.
It is patent from the submission of counsel that the direct issue raised in this appeal is whether the learned trial Judge was right when he held that the appellant had served the 1st respondent for a period of 14 years prior to his termination.
It is settled that an appellate court would not interfere with the findings and conclusions of a trial court. But it will do so where it is shown that the trial court failed to evaluate properly the evidence before it or that wrong inferences were raised upon evidence properly accepted by the court or that the court applied the wrong law to such facts. See Kuforiji v. V.Y.B. (Nig) Ltd (1981) 6-7 S.C. 40; Enang v. Adu (1981) 11-12 S.C. 25; Okuoja v. Ishola (1982) 7 S.C. 314. Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Soleh Boneh Overseas (Nig.) Ltd v. Ayodele (1989) 1 NWLR (Pt. 99) 549; Are v. Ipaye (1990) 2 NWLR (Pt. 132) 298.Before considering the central issue to which I had referred to above, namely whether the learned trial Judge was right to have held that the appellant served for only 14 years when his services was terminated, it is necessary to refer to what are not in dispute. The first is the conclusion reached by the lower court that the appellant was aged 42 years when his services were terminated. Secondly, having regard to the manner of his termination as revealed in Exhibit “E” the learned trial Judge took the view that the appellant was compulsorily retired by virtue of the provisions of section 3(b) of the Pensions Act. The learned trial Judge then went on to hold thus:-
“In view of this position, whether the plaintiff actually wrote a letter signifying his intention to retire voluntarily or not so long as the 1st defendant compulsorily retired him under S. 3(1)(b) of the Act, I hold that plaintiff becomes entitled to his pensions having served for 10 years but less than 15 years.”
He then went on to consider the provisions of S. 14(1) of the Pensions Act, as it applies to the appellant, and which led him to say thus:-
“On the first issue, learned counsel for the plaintiff submitted that the plaintiff had deposed in paragraph 6(a) sic 6[9] affidavit that he was only 42 years old at the time of termination of his appointment and by virtue of section 4(1) of the Pensions Act he ought to retire on attaining the age of 60 years and that the earliest he could be retired compulsorily is at the age of 45 years and urged that I should award 3 years salary and allowances and 3 months salary in lieu of notice.”
The learned trial Judge evidently accepted that submission as he went on to say:-
“I accept that going by S.4 (2) of the Pensions Act, the earliest time plaintiff could have been compulsorily retired was at 45. His deposition as to his age being 42 years had not been controverted and I therefore accept it and hold that he had been compulsorily retired prematurely by three years.”
Upon the basis of the above the learned trial Judge made certain awards in favour of the appellant which he identified as special damages. The respondent has not appealed against the award and the findings of the learned trial Judge reproduced above.
However, the learned trial Judge, felt unable to award pension rights to the appellant on the ground that at the date of his termination he had served only 14 years with the respondent. To be entitled to pension under the provision of the Pensions Act, the officer must have served for 15 years.
It is that finding that the appellant has challenged in this appeal. The affidavit evidence before the court is to the effect that appellant had served the respondent for 15 years. It is therefore necessary to show which evidence the learned trial Judge relied upon to hold that the appellant had served for a lesser period before his termination. If that evidence emanates from Exh. “E”, which reads:-
“Termination of appointment
In line with the on-going re-organisation in the Ministry, I have been directed to inform you that your services are no longer required. You are by this letter requested to meet the Director of Finance who by a copy of this letter has been requested to pay you three months salary in lieu of notice.
(Sgd.) E.C. Obiechina
for: Hon. Minister, FCT.”
It seems to me that it cannot be right for the learned trial Judge to have held affirmatively that the appellant failed to qualify for pension because he had served the respondent for a period less than 15 years i.e. In that regard I need to mention that to so hold in the fact of the uncontradicted affidavit evidence before the court that the appellant had served the respondent for 15 years, the court ought to have stated why it considered that the appellant had served the respondent for only a period of 14 years at the time of his termination. Though the learned counsel for the respondent has argued in his brief that the appellant had the burden of establishing that he had indeed served the respondent for 15 years, the respondent did not at the trial join issue with the appellant that he did not in fact serve the respondent for that period prior to his termination. It is settled principle that where a party failed to join issue with its opponent upon a fact pleaded by its opponent that fact is deemed admitted. The party making that assertion is no longer under a burden to establish such fact. What is admitted need not be proved.I therefore must hold that the learned trial Judge was wrong to have held that the appellant did not serve for a period of 15 years prior to his termination.
But on the other hand, is the appellant entitled to pension rights when upon his admission he was only 42 years old, at the time of his termination. For the appellant to be entitled to enjoy pension rights, having worked in the public service of the Federation, and having regard to the reasons given by the learned trial Judge, the provisions of section 4(2) of the Pensions Act (Cap. 346) of the Laws of Nigeria apply. It reads:-
“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 in writing of such requirement being given.”
It seems to me also pertinent to refer to the provisions of section 3(2)(a) & (b) of the Pensions Act (Cap. 346) of the Laws of Nigeria, which reads:-
S. 3(2)(a) “Where an officer retires after 1st April, 1977 pursuant to subsection
(1) of this section –
(a) if he has completed ten years but not up to fifteen years’ service, he shall be entitled only to a gratuity;
(b) if he has served for not less than fifteen years, he shall be entitled to pension”
I think it is right to say that the effect of the above provisions of the Pensions
Act that an officer would be entitled to pension if he was 45 years upon retirement and had served for not less than fifteen years. It is patent that the appellant in this case was upon his own admission 42 years even though he had served for 15 years when his services were terminated. That termination was what the Judge of the lower court construed to be compulsory retirement.
But what is crucial is that he had not at that date attained the requisite age of 45 years in the service. It is argued that the fact that the learned trial Judge recognised and awarded him, his salary for the three years is to adjudge that he thereby became 45 years to entitle to pension.
I do not think that argument can be right. In the first place the Judge in my view used the three years salary as the measure of damages suffered by the appellant for having been terminated in his employment at the age of 42 years when the statutory minimum age for such retirement was put at 45 years. It seems to me that the provisions of the Pensions Act envisages that to be qualified for pension under the Pensions Act the officer must be in the service continually and or in an established post in the service. Section 24 of the Pensions Act (supra) gives the definitions of an officer, “pensionable service” and qualifying service, thus:-
“Officer” means a person employed in the established grades of the public service but does not include officers on temporary or contract appointment.
“Pensionable service” means service in an established post in the public service or any approved service which may be taken into account in computing an officer’s pension under this Act.
“Qualifying service” means service in the public service or any approved service which may be taken into account in determining whether an officer is eligible by length of service for a pension or gratuity.From the foregoing interpretation given by the Pensions Act (supra) to who is an officer in the service, and what service qualifies a person to pension, I think it will be entirely erroneous to hold that a person is so qualified merely because a court had awarded damages for a period covering what remained of the period he would have remained in service had his services not been terminated. To so hold is certainly not within the contemplation of the Pensions Act. In this respect, it must be borne in mind that in construing words and phrases in an Act due regard to the consequences which must flow from it. Lord Reid emphasised this point in Gartside v. I.R.C. (1968) A.C. 553, at 612 when he said –
“It is always proper to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent, and in the light of the reasonableness of the consequences which follow from giving it a particular construction.”
There can be no doubt that one of the conditions for an officer to qualify for pension is that he must have been in the service for 15 years and aged 45 years at the time of his retirement. The provisions of the Pensions Act cannot be construed to allow a person who had retired at the age of 42 year to be deemed to have retired at the age of 45 years by the order of court seeking to compensate him for the loss he suffered by the termination of his appointment before attaining the age of 45 years, being the minimum age for retirement.
The appellant in this case was 42 years when his services was terminated by his employers the 1st respondent The order of the court awarding him damages for 3 years to compensate him in special damages, cannot be construed to mean that he was still in the service of the 1st respondent for 15 years, prior to his termination, he cannot be awarded pension under the provisions of sections 3(1) and 24 of the Pensions Act.
For all the above reasons, this appeal must fail, and it is hereby dismissed by me. The judgment of the lower court is hereby affirmed for the reasons given that the appellant is not entitled to pension. Cost to the 1st respondent is assessed at N2,000.00.
Other Citations: (1998)LCN/0460(CA)