Rufus Femi Amokeodo V. Inspector General Of Police & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
O. EJIWUNMI, J.S.C.
By an originating summons issued in the Lagos High Court at the instance of the appellant seeking a determination as to whether having retired from the Nigeria Police Force, he could still be dismissed under the provisions of Decree 17 of 1984. The matter came up before the Lagos High Court presided over by Ilorin,(as he then was) who upon the affidavit evidence of the parties, and the addresses or their learned counsel, struck out the claims of the appellant. The claims were struck out on the ground that the jurisdiction of the court has been ousted by section 3(3) of Decree 17, Public Officers (Special Provisions) Act of 1984.
However, before reaching that conclusion, the learned trial Judge had also held that the appellant had not validly retired from the Nigeria Police Force at the time he was dismissed.
It must be noted that during the hearing in that court several exhibits were tendered. Reference would therefore be made to some or all of them as deemed pertinent to the issues raised for determination in this appeal.
Being dissatisfied with the judgment and orders of that court, the appellant appealed to the Court of Appeal (Lagos Division) by filing a notice of appeal wherein he challenged the judgment of the court upon seven grounds of appeal.
At the hearing of the appeal before the court below, briefs were filed and exchanged. The appellant in that court raised three issues for determination and which read thus:-
(1) Whether the trial court mis-applied the relevant principles and came to a wrong conclusion on the effect of non-compliance with section 21(1) of the Pensions Act.
(2) Whether the appellant was still in the public service at the time of his dismissal under Decree No. 17 of 1984.
(3) Whether the trial court lacked jurisdiction to entertain the appellant’s action on the grounds:
(a) That Decree No. 17 of 1984 applied to public officers like the appellant (who) was no longer in service.
(b) That Decree No. 17 of 1984 as involved (sic) applied to the appellant.
In a well considered judgment, the court below resolved all the issues raised before it against the appellant. Consequently that court dismissed the appeal, and affirmed the judgment of the trial court.
Still not satisfied, the appellant has appealed to this court upon seven grounds of appeal. In accordance with the rules of this court, briefs were filed and exchanged. The appellant upon the receipt of the respondents’ brief also filed a reply brief. At the hearing before us, learned counsel for the respondents sought the leave of court to withdraw the preliminary objection he had raised in the respondents’ brief. Leave was duly granted and the preliminary objection was accordingly struck out. Learned counsel appearing for the appellant, I. Ajomo Esq., adopted and placed reliance on the two briefs filed by the appellant. He also made further submissions to explain further some of the arguments that had been argued in the briefs. At the end of this submission, he urged that the appeal be allowed. The learned counsel to the respondents also adopted the brief filed for the respondents. He also addressed the court further in respect of some aspects of the arguments that he had setout in the respondents’ brief. Learned counsel concluded his submission by asking that the appeal be dismissed.
In the appellant’s brief the following are the issues identified for the determination of this appeal from the seven grounds of appeal filed against the judgment of the court below.
(1) Whether the Court of Appeal on its own part and in affirming the decision of the learned trial Judge on the point, misconstrued the provisions of section 21(1) of the Pensions Act Cap. 346 Laws of the Federation of Nigeria 1990 and thereby came to a wrong conclusion [Grounds (i), (ii) and (iii)].
(2) Whether the Court of Appeal misconstrued the appellant’s notice of retirement – Exhibit RFA 3 – and thereby made wrong inference that the appellant had not retired with immediate effect [Grounds (iv) and (v)].
(3) Whether the Court of Appeal misconstrued the provisions of the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation of Nigeria 1990 and thereby came to a wrong conclusion that the jurisdiction of the court had been ousted [Ground (vi)].
(4) Whether the Court of Appeal erred and denied the appellant a fair hearing as regards the case put forward on section 1(1)(d) of the Public Officers (Special Provisions) Act Cap 381 Laws of the Federation of Nigeria 1990 [Ground (vii)].
Similarly, the respondents identified four issues for the determination of the appeal. But after a careful perusal of those issues, it is my view that as they are all in the same terms as those recorded above from the appellant’s brief, I will not set the issues identified in the respondent’s brief. The appeal would therefore be determined upon the issues set down in the appellant’s brief. However, before examining these issues the facts lending to these proceedings would be related, howbeit, briefly. The appellant before the events leading to this action was a Superintendent of Police, but on the 1st of February, 1989, he was dismissed from the Nigeria Police Force with effect from the 10th of December, 1987. The appellant then challenged that dismissal in suit No. ID/140m/89. The court upheld his claims as that court had in the decision delivered on the 15th of September, 1989 declared that the dismissal was unconstitutional, null, void and of no effect whatsoever. Following the receipt of a consequential order that the appellant be reinstated in the force, the Inspector General of Police caused a letter dated 30th October, 1989 to be written to the appellant. He was, upon the basis of that letter, ordered to be reinstated in his position in the Police Force from the 10th of December. 1987.
Having been so reinstated into his position, the appellant on the 3rd of November, 1989, by a letter of the same date informed the Police Force of his voluntary retirement from the force. By the said letter the appellant wished it to be noted that his retirement was with immediate effect. That letter would be reproduced later in this judgment. On the 8th of November, 1989, five days after that letter of retirement, he was dismissed from the Nigeria Police Force under the provisions of Decree 17 of 1984.
Before this court, having failed to persuade the court below to hold that his dismissal was illegal and void. he has as I have previously observed challenged that decision of the Court of Appeal (Lagos Division).
The first issue raised by the appellant against the judgment of the court below touches on whether that court did not misconstrue the provisions of section 21(1) of the Pensions Act Cap. 346 Laws of Nigeria 1990 and thereby came to a wrong conclusion. In the argument of learned counsel to the appellant in the appellant’s brief, the view is canvassed that in interpreting section 21(1) of the Pensions Act, a distinction must be drawn between non-compliance with what the subsection prescribes and the legal consequences of a breach or contravention of the subsection. He further contends that it is not in every case that non-compliance with the provisions of a statute renders the resulting action void. He therefore submits that it was the failure to observe this distinction that led in part to the error that the Court of Appeal fell into in affirming the judgment of the trial court. Furthermore, counsel argues, that the other error of construction made by the court below was the assumption that the use of word “shall” as a pre-fix to the “giving of notice” and “payment in lieu of notice” under section 21(1) of the Pensions Act meant that the prescriptions were mandatory rendering “ipso facto” void any act of non-compliance.
It would appear therefore from the argument advanced by the learned counsel to the appellant in the appellant’s brief that the court below did not consider or examine critically whether the provisions in s. 21(1) of the Pensions Act is mandatory or directive. That if the court had adequately examined the provisions in the light of the applicable principles for construing such statutory provisions the court would have concluded that the provisions concerning “notice” and “lieu of notice” in s. 21(1) of the Pensions Act should be regarded as merely directory. In support of his contention reference was made to the following cases: – Howard v. Bodinton (1871) 2 P.D. 203 at 210: Ifezue v. Mbadugha (1984) 1 SCNLR 427 at 450: London & Clydeside Estates & Clydeside Estates Limited v. Aberdeen District Council & Anor (1979) 3 AER 876 at 883.
The learned counsel to the appellant then contends that the provision for three months pre-retirement notice or payment of wages in lieu of notice, are not conditions precedent (mandatory) but rather directory. And submits that this is so because, the only damage to the employer accruing from the breach of this provision is quantifiable in pecuniary terms and recoverable by action. Learned counsel therefore submits that if the consequences of the breach become payable, then such a breach should not render the act void. moreso, when the employer has not suffered any prejudice. With that submission he urges that this issue be resolved in his favour.
Responding, the respondents in their brief, have argued that there is no merit in the several contentions made for the appellant. It is the submission of learned counsel to the respondents that the provision of section 21(1) of the Pensions Act are plain and unambiguous. Therefore, he argues, that where words in an enactment are plain and unambiguous then the ordinary and/or natural meaning of the words must be construed from the provisions. In support of this submission, he has referred to the case of Niger Progress Ltd v. North Eastline Corporation (1989) 3 NWLR (Pt. 107) 68 31 85. The learned counsel to the respondents then submits that the Court of Appeal per Dahiru Musdapher J.C.A., was right to have held in the judgment of that court, the word “shall” as used in section 21(1) of the Pensions Act, is mandatory, and not permissive as the words must be given their ordinary and grammatical meaning. He finally contends that this issue be resolved against the appellant.
As I have stated above the complaint of the appellant in respect of this issue is that the court below failed to recognise that the three months pre-retirement notice or payment of wages are not conditions precedent. In other words it is his view that the conditions are merely directory and not mandatory.
It is manifest from the records that this argument was the same as that which was pressed upon the courts below. At the court of first instance, the learned trial Judge rejected the argument when he said:-
“I pause here to remark that I find no merit in the alternative submission where a statute prescribes a condition precedent for the doing of an act that act cannot be validly done without first complying with the prescribed condition precedent.”
The Court of Appeal also rejected that contention made on his behalf by learned counsel to the appellant as that court held thus:-
“In order to terminate the relationship of master and servant under section 21 of the Pensions Act, an officer needs to do one of two things, either he gives three months’ notice of intention to retire from service or pays immediately a sum of equal to three months’ pay.
In his criticism of the decision of the court, learned counsel to the appellant clearly rccognised that statutes are traditionally classified as either mandatory or directory. And he properly referred to the case or Howard v. Bodington (1871) 2 P.O. 203 where Lord Pcn7eance at p. 210 observed that-
“the real question in all cases is this. A thing has been ordered by the legislature to be done. What is the consequence if it is not done In the case of statutes that are said to be imperative, the courts have decided that if it is not done, the whole thing fails, and the proceedings that follow upon it are void. On the other hand when the court holds a provision to he directory they say that although such a provision may not have been complied with the subsequent proceedings do not fail.”
Learned counsel to the appellant, concedes it, that this distinction has been recognised in this court in Ifezue v. Mbadugha (1984) 1 SCNLR 427 where Aniagolu J.S.C. in the course of delivering the lead judgment of the court said-
“…..an absolute or mandatory (sometime) also referred to as imperative) enactment must be obeyed or fulfilled exactly; but in a case of a directory enactment, it is sufficient if it is obeyed or fulfilled substantially …”
However, though learned counsel to the appellant recognised this distinction, yet it is his view that this court should, for the determination of this appeal, take the view that the consequences that would flow from holding whether the provisions of a statute are imperative or directory must be weighed or considered before classifying such provisions of statute into either of these categories. For this proposition learned counsel to the appellant sought solace in the following authorities – In Ifezue v. Mbadugha (supra), Bello J.S.C. (as he then was) said:-
“Importantly, the consequence of holding a provision to be mandatory or directory ought to be taken into account. In Caldow v. Pixell (1877) 2 C.P. D 562 at 566 Denman, J.. said: ‘in the absence of an express provision, the intention of the legislature is to be ascertained by weighing the consequence of holding a statute to be directory or mandatory.’ ”
Also, Lord Hailsham in London & Ciydeside Estates Limited v. Aberdeen District Council & Anor (1979) 3 A.E.R. 876 at 883, observed that:-
“In the reported decisions there is much language presupposing the existence of stark categories such as ‘mandatory’ and ‘directory’, ‘void and ‘voidable’ a ‘nullity’ and ‘purely regulatory’. Such language is useful and indeed, in the course of this opinion, I have used some of it myself. But I wish to say that I am not at all clear that the language itself may not be misleading in so far as it may be supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments …”
However, a careful reading of the entire judgment from which the above quoted dictum was extracted would reveal that the learned Lord Hailsham, the Lord Chancellor, had before uttering the observation, considered how the provisions of a statute could be classified as “mandatory” or “directory”. I refer in this regard to the London & Clydeside Estates v. Aberdeen District Council (supra) where, the Lord Chancellor said inter alia that:-
“The first task is to construe the statute, and ask the question is it ‘mandatory’ or ‘directory’. If it be mandatory, the second task is to ask what remedy is available for non-compliance …”
And at page 883, the Lord Chancellor continued by saying that:-
“When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of concrete state of facts and a continuing chain of events.”
In view of the above extracts from the judgment of the Lord Chancellor, I do not think that it can be said that his Lordship took the view that the determination of a statute are “mandatory” or “directory” would depend upon the consequences of holding whether they are or not.
It is in my view clear that the question whether a statute is mandatory or directory falls to be determined upon a true construction of its provisions. It is after it has been determined that the statute is mandatory or directory that the court would then consider, if necessary, the legal consequences that would now form the classification given to the statute.
I will now examine the provisions of s. 21(1) of the Pensions Act Cap. 346 of the Laws of the Federation of Nigeria 1990 in the instant case bearing in mind the principles stated above and that of the learned authors of Halsbury’s Laws of England, 3rd edition where at p.435, it was stated:-
“No universal rule can be laid down for determining whether provisions are mandatory or directory; in each case, the intention of the legislature must be ascertained by looking at the whole scope of the statute and, in particular, at the importance of the provision in question in relation to the general object to be secured.”
It is relevant that the provisions of s. 21(1) of the Pensions Act be set out. It reads:-
“21 (1) An officer who wishes to retire from the service after serving for fifteen years or more shall give the Minister three months’ notice of his intention to do so or he shall pay three months’ salary in lieu of such notice.”
A careful reading of the above quoted provisions of section 21(1) of the Pensions Act (supra) clearly reveals that the section was enacted for the purpose of enabling officers wishing to retire from the public service of the Federation, having been in the service for a minimum of fifteen years prior to the date of his retirement notice. It also prescribes the formalities which are essential to the validity of the retirement of the officer. The formalities that such officers have to fulfill are optional. He shall either give three months’ notice of his intention to the Minister, or pay three months’ salary in lieu of notice. The use of the word “shall” as a prefix to either of the choices open to a retiring officer cannot be ignored in construing the provisions of section 21(1) of the Pensions Act (supra). I refer on this point to Longman Dictionary of the English Language where it is stated that “shall” is used to express a command or exhortation, or what is legally mandatory. It must therefore follow from all I have said above that I must conclude that the provisions of section 21(1) of the Pensions Act (supra) are mandatory. An officer wishing to retire from the public service is under a mandatory duty to either give three months’ notice of his intention or pay three months’ salary in lieu to validly retire from the service.
What now remains is to consider whether the appellant in the instant case validly retired from the public service of the Federation. The appellant, herein, served a notice of his intention to retire from the public service with the following letter to Inspector General of Police dated 31st November, 1989.
NOTICE OF VOLUNTARY RETIREMENT
FROM THE NIGERIA POLICE FORCE
This is to inform you that I Rufus Amokeodo (SP) presently of Lagos State Police Command. Ikeja hereby voluntarily retire from the Nigeria Police Force with effect from date hereof.
I hereby utilise my three months accumulated leave for the years 1987-88-89 as period of notice required under the appropriate enactment.
I have put in 21 1/2 years of meritorious service in the Nigeria Police Force i.e. from 1/5/68 – 3/11/89.
I was promoted to my present rank of Superintendent of Police with effect from 1/22/88 which I am still holding till date.
I will take immediate steps to surrender police properties in my possession to the CP Lagos State Command.
I thank the I.G.P. for allowing me to serve the Federal Government of Nigeria for these years of service to the nation.
Kindly expedite action on my gratuities, pension and other entitlements please.
It is manifest from the above letter of retirement that it was the intention of the appellant to retire voluntarily from the Nigeria Police Force from the 3rd of November. 1989. i.e. the date of his letter. It is however clear that the appellant wanted to give three months notice under section 21(1) of the Pensions Act. In that regard he asked in that letter that his months accumulated leave for the years 1987, 88 – 89 be utilized for the three months notice stipulated in s. 21(1) of the Pensions Act. It seems to me clear that a notice of this kind cannot come within the meaning of the requisite three months prior to retirement envisaged in section 21(1) of the Pensions Act. What I think the section requires of a retirement officer is to give a notice of three months that immediately precedes the date of his retirement. To do otherwise, as was done in the instant case, cannot be regarded as compliance with the provisions of section 21(1) of the Pensions Act. Having not retired from the service immediately, which the appellant could have done by paying three months salary in lieu of notice. Similarly the argument that the unpaid salaries owed to the appellant at the date of his letter of retirement should have been as payment or three month salary in lieu of notice is simply not tenable. In the first place his teller of retirement is clearly to the effect that he had given his employers three months notice of his intention to retire. He cannot now seek to alter that by hiding under some alleged money owed to him by the respondents.
As I have emphasised above, the provisions of section 21(1) of the Pensions Act allow a retiring officer a choice. A three months notice or payment of three months salary in lieu of that notice. It is either one or the other. The appellant made a choice by giving a notice of three months to retire; He will have to abide with the legal consequences that flow from that choice. This being that he remained in the service until the expiration of his three months notice. Within that period, he also remained subject to all the benefits and advantages that an officer of his rank is entitled to. He is also subject to any disciplinary measures that his employers deem necessary to maintain generally on a serving officer. The dismissal of the appellant within the period of his retirement notice is the exercise of the right of the respondents over one of the serving officers in the Nigeria Police Force. I must therefore resolve issues 1 & 2 against the appellant for all the reasons given above.
On the 3rd issue, the contention of the appellant is that the court below misconstrued the provisions of the Public Officers (Special Provisions) Act Cap. 381. Laws of the Federation of Nigeria 1990 and thereby came to a wrong conclusion that the jurisdiction of the court had been ousted: –
The thrust of the argument for the appellant in the appellant’s brief on this issue is that at the time of his dismissal, the appellant was no longer in the public service. The kernel of the submission of learned counsel to the appellant is that by the provision of section 4 of Decree 17 under which the appellant was dismissed, he cannot be described as a public officer. The said section 4 of Decree 17 which defines who is a public officer reads:-
…..any person who holds or has held office on or after 31st December 1983 in the public service of the Federation or of a State within the meaning assigned thereto by section 277(1) of the Constitution of the Federal Republic of Nigeria 1979.”
Learned counsel then proceeded to contend that the appellant was not in the public service within the meaning of the provisions of section 4 of Decree 17.
Learned counsel to the respondents has however argued in his brief that there is no substance in the contention of the learned counsel to the appellants. I agree with that view of learned counsel to the respondent on this issue. I have before now examined the questions raised as to whether the appellant was a public servant when he was dismissed on the 8th day of November. 1989. And my firm view is that he was, when dismissed by the respondents. I therefore resolve this issue against the appellant.
On issue4, the appellant’s complaint is that he was denied fair hearing by the court below in accordance with the provisions of section 33(1) of the Constitution of Nigeria 1979. The contention made for the appellant by his learned counsel in the appellant’s brief appears to be that the court below failed to consider that the appellant was not a public officer under which he was dismissed “to wit”‘ section 1(1)(d) of Decree 17 of 1990. In response to this contention learned counsel to the respondents in their brief urged that as the contention is frivolous and lacks merit it should be dismissed.
If, as it is argued for the appellant, that the appellant was denied fair hearing, the duty of the appellant is to show that nowhere in the judgment of the court below was this question considered. It is evident that the central issue in this appeal and indeed what has dominated the proceedings in this case is whether the appellant was a public officer when he was dismissed by the respondents. It cannot be denied that the court below and the trial court considered very carefully all the questions raised by the appellant concerning his status as a public officer when he was dismissed. I have also considered this question, and have resolved that the appellant was a public officer when he was dismissed. The appellant has not in my respectful opinion shown how he was denied fair hearing by the court below.
In the result this appeal is dismissed in its entirety. The respondents are awarded the sum of N10.000.00 as costs.