APPEAL NO: SC.113/1984

CITATION: (1985) 6 LLIR 1

Alternative Citation:

(1978) All N.L.R 291

Before Their Lordships














( Please note that because the facts as narrated by the Supreme Court, per Oputa J.S.C. was intertwined with the analysis and pronouncement of the court; the facts and claims of the parties have been presented below unedited.)

The plaintiff/appellant joined the Nigerian Civil Service on the 7th July, 1944. He then served in the Department of Agriculture. Sometimes in 1949, he was transferred to the Department of Marketing and Export and in 1962 he was again transferred to the Nigerian Produce Marketing Company Ltd. On the creation of the Nigerian Cotton Board-the defendant company-the plaintiff was again “deployed thereto and deemed to have been appointed by the defendant Board with effect from 1st day of April, 1977”. By letter No. NCTB/CSTP-387/31 of 11th April, 1979, tendered as Exhibit Q, the defendant company retired the plaintiff from the service of the Board with full benefits, and requested him “to vacate the Board’s quarters, after a period of one month’s grace”. Thereupon the plaintiff sued the defendant in the High Court of Lagos State claiming as follows:

The plaintiff’s Writ of Summons in this case was dated 10th July, 1979 and was expeditiously filed on the very same day 10-7-79. This date is important especially to the issue of the jurisdiction of the Lagos High Court to entertain some aspects of this case. Pleadings were ordered, filed and exchanged. The plaintiff’s case on his pleadings was as follows:

“A sum of N108,731 being damages suffered by the plaintiff as a result of his unlawful and wrongful retirement in Lagos from the service of the defendant Board as per the defendant’s letters of 11th April, 1979 and 17th May, 1979.

1. This his ‘Terms and Conditions of Service’ with the defendant/Board were governed by the Civil Service Rules, Regulations and relevant Circulars and Directives-paragraph 32 of the Statement of Claim refers.

2. That when he was retired by the defendant/Board, he was only 53 years of age-paragraph 33 of the Statement of Claim.

3. That by Circular No. 4/1978, tendered as Exhibit U, the compulsory retiring age of public officers was raised from 55 to 60 years-paragraph 34 of the Statement of Claim.

4. That by retiring him at the age of 53 years the defendant/ Board prevented him from earning his salary for the period 22nd March, 1979 to 9th December, 1985; (see paragraphs 35 and 36 of the Statement of Claim).

5. That he committed no offence to warrant his forced and/or wrongful and unlawful retirement; (paragraphs 37 and 40 of the Statement of Claim).

6. That the procedure for retirement under Section 9 of the Pensions Act, namely giving the retiring officer six months’ notice in writing was not complied with in his case; (paragraph 42 of the Statement of Claim).

7. That an essential part of the Terms and Conditions of Employment between the defendant/Board and its employees (including the plaintiff) stipulated voluntary retirement at the age of 45 years and compulsory retirement at the age of 60 years (paragraph 45 of the Statement of Claim).

This was the plaintiff’s case as pleaded.

What were the defendant’s answers to the vital averments of the plaintiff? The defendant’s case on the pleadings was:

1. The plaintiff was transferred to the Headquarters of the Board at Funtua and ordered to vacate his quarters at No. 13A Dakar Road, Apapa for Alhaji Jimeta who was simultaneously with the plaintiff transferred from Funtua to Lagos-paragraph 6 of the Statement of Defence.

2. That in spite of several letters from the Board requesting the plaintiff to vacate the Board House at No. 13A Dakar Road, Apapa, the plaintiff obstinately refused to vacate-paragraphs 6, 7, 8 and 9 of the Statement of Defence.

3. That because of the behaviour of the plaintiff, the defendant suspended him from the service of the Board and in spite of his suspension the plaintiff still refused to vacate the Board’s quarters at No. 13A Dakar Road, Apapa as requested-paragraph 9 of the Statement of Defence.

Note-The letters exchanged between the plaintiff and the defendant/Board over his transfer to Funtua and the Board’s order to the plaintiff to vacate the quarters at No. 13A Dakar Road, Apapa were tendered as Exhibits E, F, G, H, J, and K. The Query which the defendant/Board issued to the plaintiff was tendered as Exhibit L and the Suspension Letter written to the plaintiff was tendered as Exhibit N. The Retirement Letter which formed the basis of this action was tendered as Exhibit Q.

The most important paragraph of the Statement of Defence which raises the central and vital issue in this case is paragraph 10. I reproduce this paragraph hereunder:

“10. In spite of his suspension the plaintiff refused to comply with the instructions of the defendant/Board and continued up to this date in occupation of the Dakar Road property. In the circumstances the defendant/Board decided on humanitarian grounds to terminate the services of the plaintiff by retiring him from the services of the Board with full benefits in lieu of outright dismissal without benefits.”

From the pleadings of the parties, the core of this case, the central issue is:

1. Could the plaintiff have been summarily dismissed by the Board?

If on the evidence and finding of the trial judge the answer is yes; then another issue and a less difficult issue will arise:

Was the retirement of the plaintiff with full benefits rather than outright dismissal unlawful and wrongful?

To my mind every other issue in this case, namely, whether or not:

1. The Terms and Conditions of Service of the plaintiff were governed by Civil Service Rules and Regulation or by the Board’s Terms and Conditions.

2. whether either of these Terms and Conditions of Service were in fact established by the evidence-all these fall into comparative insignificance.

At best such other issues will be merely peripheral. I will deal with the plaintiff’s claim first before turning to the defendant’s counter claim that is with the plaintiff’s appeal before dealing with the appeal on the counter claim.

Now what was the finding of the learned trial judge on the main issue-whether or not the plaintiff was guilty of conduct amounting to disobedience of lawful order and instruction and also insubordination? I will hereunder reproduce the ipsissima verba of the learned trial judge:

“The plaintiff’s claim is for damages for wrongful and unlawful retirement from the service of the defendant/Board. The circumstances leading to the decision of the Board have been stated. The question that has to be answered is the question as to whether or not the Board was justified in dispensing with the service of the plaintiff in the manner it did. I do not think the Board was not justified. The plaintiff was posted to Funtua and directed to vacate his quarter in Lagos. He resumed duty in Funtua quite alright but failed to vacate the quarters for his successor in spite of warnings from the Board that disciplinary action would be taken against him. There is no doubt that the plaintiffs conduct amounted to disobedience of a lawful order or instruction and also insubordination. The Board was justified in dealing with him in the manner it did. To my mind the plaintiff should be grateful to the Board for not dismissing him summarily. He was however, retired with benefits. The plaintiff cannot justify his disobedience of the instructions given to him on the ground that he had no place to put his wife and children. I therefore hold that the plaintiff has failed to prove that his retirement was either wrongful or unlawful.”

On the above findings, the learned trial judge, Oshodi, J. rightly in my view, dismissed the plaintiff’s claim.

The plaintiff then appealed to the Court of Appeal, Lagos Division. Both in his original and further additional Grounds of Appeal, the plaintiff/appellant in the Court of Appeal concentrated his fire-power on error in law and misdirections. The main thrust of his attack was that he was compulsorily retired at the age of 53 rather than 60 years and that that ipso facto was wrong. There was also the argument as to what Terms and Conditions of Service were applicable to the plaintiff/appellant-the Civil Service Rules and Regulations or the Board’s Terms and Conditions which had not been ratified? My humble view is that these matters are at the best peripheral and at the worst wholly irrelevant to the fundamental and main issue. I cannot conceive of any “Terms and Conditions of Service” be it the Civil Service Conditions or the Board’s that will legalize disobedience to lawful order and instruction to tolerate insubordination. The plaintiff/appellant did not in the Court of Appeal focus attention on the main issue-whether from the evidence before him the learned trial judge was right in holding that he-the plaintiff-was guilty of disobedience to lawful order and instruction and thus guilty of insubordination. This is a question of fact and the findings of fact of the trial court on this issue of fact can only be upset on a ground of appeal on the fact, directly challenging such a finding. There was no such ground filed and argued in the Court of Appeal.

The Supreme Court held:

Therefore even if all the grounds urged in the court below were decided in favour of the plaintiff/appellant, his appeal would still have floundered on the rock and capsized in the sea of the plaintiff’s disobedience and insubordination. It will be an example of winning the battles but losing the war. As found by the trial court, the Board on the evidence before that court could have legally dismissed the plaintiff. Is it not a reductio ad absurdum to contend that a master who could have lawfully dismissed his servant for disobedience and insubordination will be guilty of a wrongful act if he retired that same servant, (on the same facts of disobedience, etc.), on humanitarian grounds? This is the absurd conclusion the plaintiff/appellant was asking the court below to arrive at. The Court of Appeal did not arrive at such a conclusion. It dismissed the plaintiff’s appeal.