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P.H.M.B. v. Ejitagha

PSYCHIATRIC HOSPITAL MANAGEMENT BOARD

V

E. O. EJITAGHA

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI,  J.S.C., ( Presided )

OKAY ACHIKE,  J.S.C.

UMARU ATU KALGO,  J.S.C.

SAMSON ODEMWINGIE UWAIFO,  J.S.C.( Read the Leading Judgment )

EMMANUEL OLAYINKA AYOOLA,  J.S.C.

SC. 47/1995

FRIDAY, 23RD JUNE, 2000

ADMINISTRATIVE LAW - Delegation of authority - Retirement of serving officer under section 4(2) Pensions Act, Cap. 346 LFN, 1990 - Power of Minister in respect of - Whether can be delegated - How delegation is done under section 20(1) Pensions Act, Cap. 346 LFN, 1990

ADMINISTRATIVE LAW - Minister’s policy speech - Whether supersedes the law

ADMINISTRATIVE LAW - Organisation declared public service under Pensions Act, Cap. 346 LFN, 1990 - Whether has power by itself to retire employee, section 4(2) Pensions Act, Cap. 346 LFN, 1990

ADMINISTRATIVE LAW - Ultra vires - Retirement of serving officer under section 4(2)  Pensions Act, Cap. 346 LFN, 1990 - Exercise not carried out by Minister or his delegate - Effect

EVIDENCE - Burden of proof - Placing burden wrongly on party - Effect

EVIDENCE - Onus of proof - Retirement of serving officer under section 4(2) Pensions Act, Cap. 346 LFN, 1990 - Onus of proof of compliance with section 4(2) - On who lies onus of proof

MASTER AND SERVANT -  Retirement of serving officer - Failure to follow conditions under section 4(2) Pensions Act Cap. 346 LFN, 1990 - Effect MASTER AND SERVANT - Retirement of serving officer under section 4(2) Pensions Act Cap. 346 LFN, 1990 - Requirement that officer be given three months’ notice in writing - Whether can  be circumvented by giving officer three months payment in lieu of notice

MASTER AND SERVANT - Retirement of serving officer under section 4(2) Pensions Act Cap. 346 LFN, 1990 - Precondition for

MASTER AND SERVANT - Retirement of srving officer under section 4(2) Pensions Act  Cap. 346 LFN, 1990 - Onus of proof of compliance with section 4(2) On who lies onus of proof.

MASTER AND SERVANT - Summary retirement of officer - Whether posible under section 4(2) Pensions Act, Cap. 346 LFN, 1990

Issues:

  1. Whether the Pensions Act, Cap. 346 LFN, 1990 applies to and govern the mode of compulsory retirement of the respondent from service.
  2. Whether the respondent was validly compulsorily retired under the said Act.

Facts:

The respondent was a Chief Executive Officer (Accounts) on grade level 13 at the Psychiatric Hospital Uselu, Benin City, attached to the University of Benin Teaching Hospital (UBTH).  His employment unquestionably was governed by the Psychiatric Hospital  Management Board Act 1979 (formerly Decree No. 92 of 1979) .  The third schedule to the aforesaid Act lists hospitals under the control and management of the appellant Board of which Psychiatric  Hospital Uselu, Benin City is included and, as earlier stated, attached to the UBTH.  The UBTH is listed in the schedule to the Pensions Act, 1979 (formerly Decree No. 102 of 1979) and is stated as Public Service under that Act.  The respondent, therefore, was undoubtedly a civil servant under the said Act.  Furthermore, by Government Notice No. 455 in Nigeria Official Gazette No. 24, Vol. 68 of 21st May, 1981, the appellant Board was declared Public Service under the said Pensions Act, 1979.

The respondent was dismissed from appellant’s service.  He questioned the dismissal in court and was reinstated to his office by the order of the court, which declared the dismissal null and void.  That was on 12th September, 1990.  Just about three months thereafter, the appellant, by a letter dated 4th December, 1990, summarily but compulsorily retired the respondent from its service.  Again, the respondent contested his retirement in the Benin High Court, praying the court to declare  the said compulsory retirement null and void, that he was still in the service and, therefore, entitled to all his dues and also that the court should direct his reinstatement or be paid his entitlements until he attains the age of 60 (the appellant being only 49 years at the material time).  His claim was dismissed by a splitdecision of 2:1, his appeal to the Court of Appeal, Benin Division was allowed.

The lower court nullified his purported compulsory retirement from service and ordered his immediate reinstatement. Disatisfied, the Appellant Board appealed to the Supreme Court.