Timothy Ogundeji Sunday Gbadeyan V. University Of Ilorin (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the decision of the Federal High court, sitting at Ilorin, presided over by A.O. Faji, J. delivered on the 23rd day of November, 2011. The appellant herein was the plaintiff in the lower court who vide an originating summons dated 9th day of February, 2010 filed on 10th February, 2010, Pages 1 – 3 of the printed records of Appeal sought the following reliefs:

1. “A DECLARATION that a letter of acceptance of the Plaintiff’s Notice of Retirement constitutes a condition precedent to the valid determination of the contract of service between the plaintiff and the defendant herein.
2. A DECLARATION that a letter of acceptance is the condition precedent and a platform upon which the plaintiffs pension and gratuity can be calculated and paid in accordance with the dictates of the pension Act, 2004.
3. A DECLARATION that the defendant’s mute attitude to the letter of Notice of Retirement written by the plaintiff since 10th June, 2005 constitutes a refusal to accept the plaintiffs intention to retire.
4. A DECLARATION that the plaintiff’s contract of employment with the defendant is still valid and subsisting in view of the continued refusal and/or neglect of the defendant to convey its acceptance of the said Notice of Retirement.
5. AN ORDER mandating the defendant forthwith to pay all the arrears of salary and other entitlements due to the plaintiff till date.
6. AN ORDER directing the defendant to restore the name of the plaintiff to the pay roll of the staff of the defendant.”

At the close of trial, the trial court refused reliefs 1, 3 – 6 of the plaintiffs claim and granted relief 2.

The appellant was unhappy with the judgment of the trial court hence he filed his Notice of Appeal on 20th January, 2012 containing 6 (six) grounds of appeal, pages 117 – 122 of the printed records of Appeal.

The background facts are that the appellant was employed by the respondent as a lecturer in the faculty of law. A contract of service/employment was entered into by both parties with a statutory flavour. It was contended that the respondent’s condition of service for senior staff stipulates that an employee of the respondent qualified for pension and gratuity could only retire from the service of the respondent after at least ten (10) years of meritorious service.

It was made out that the appellant, a senior staff, having served the respondent for, at least, ten (10) years notified the respondent by his letter dated 10th June, 2005 of his intention to voluntarily retire. The receipt of the letter was acknowledged by the Respondent on 6th July, 2005, pages 4 and 11 of the printed records. Further, that between July 2005, when the appellant appeared before the Defendant’s Pension and Gratuity office and August, 2008 when the National Pension Commission came to University of Ilorin for the Institution’s Pensioners verification exercise, the Respondent had not taken any action concerning the appellant’s notice of retirement and on his pension and gratuity

At the verification exercise, the appellant presented himself as one of the Pensioners by taking necessary National Pension Commission Forms and filled them as required by pensioners of the respondent especially, those of the law faculty who had retired six months before him.

The Appellant’s forms were rejected by the verification team after their demand for the letter of acceptance or approval of the appellant’s notice of intention to retire. The acceptance letter entitles the appellant to a “Pension Number”. The appellant who had no reply to his notice had nothing to present.

The verification team deemed it that the Appellant was still in service, since he had no letter of acceptance of his notice of retirement, pages 5, 14 and 15 of the printed records.

The Respondent made out that the letter of approval or acceptance of the appellant’s 2005 and 2008 was not written because the appellant’s file with the University could not be located and there was nothing they could do without the file, page 5, paragraph 9 of the affidavit in support of the originating summons.

The resultant effect was that the appellant could not process the payment of his pension and gratuity because his clearance form could not be completed before the National Pension Commission Verification team that invited the respondent. The team felt that the appellant had not retired.

Thereafter, as made out by the appellant, he continuously demanded for the letter of acceptance and the respondent failed to write same from 2005 till date.

The appellant contended that, after several demands, for the letter of acceptance from the respondent without any response, the appellant wrote a letter to notify the respondent of his intention to withdraw his unaccepted letter of retirement and he withdrew same. The Appellant thereafter requested to be reinstated to the respondent institution and to be assigned his duty post. It was alleged that the Respondent failed to act and did not respond to the appellant. As it were, the appellant was neither released to enjoy his pension and gratuity nor reinstated by the respondent so as to continue to discharge his functions under the contract of employment between the parties herein. The Appellant went to court. The trial court affirmed and sustained the appellant’s relief 2 claimed in the originating summons but, dismissed reliefs 1, 3, 4, 5, and 6 and awarded costs against the Appellant. This gave rise to the present appeal. The Appellant formulated three (3) issues to be determined by this court.

They are: