-
1
a declaration that this compulsory retirement was null and void 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 NI,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 (No. 2)(1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986)4 NWLR 4 (Pt. 34) 162; Olatunbosun v. NISER Council (1988) 3 NWLR (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.”
sss
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 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 weighed unjustly on relevant issues against such a party: See Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; (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 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.
