Hon. Justice Olufunke Anuwe of the Abuja Judicial Division of the National Industrial Court has nullified the guideline issued by the Head of Service of the Federation, Hon. Minister of Education and Ministry of Defence on the implementation of Teacher Retirement age for being inconsistent with the Harmonized Retirement Age for Teachers in Nigeria Act 2022.
Justice Anuwe held that the provisions of the purported Guidelines are inconsistent with the Harmonized Retirement Age for Teachers Act and that the Act did not vest any powers on anybody, authority or office to make any regulation or guidelines or set out criteria for the implementation of the new retirement age for teachers.
The Court stated that the redeployment of Afolake from the Ministry of Defence did not affect her years of service as guaranteed in the Harmonized Retirement Age for Teachers, as the reason for her redeployment to Command Day Secondary School was not stated in the letter, that Afolake still maintained her position as Director and grade level 17 at the point of redeployment.
Justice Anuwe reiterated that the court does not interfere with the exercise of the right of the employer, and an employer has the right and powers to transfer or redeploy an employee to another division or sector within the employment where the employee’s services are needed.
From facts, the claimant- Afolake an Education Officer had submitted that as a Director and Head of the Education Services Department at the Ministry of Defence on Grade Level 17 and ought to have retired compulsorily at the age of 60 years but by the effect of the extension under the Harmonized Retirement Age for Teachers in Nigeria Act 2022, the effective age of her compulsory retirement is now 65 years instead of the previous 60 years.
According to her, the Head of Service of the Federation, Hon. Minister of Education and Ministry of Defence developed an instrument called the Guidelines on the Implementation of the New Retirement Age and Length of Service for the Teaching Profession which contain the conditions for eligibility and prerequisites for the application of the Act in relation to Education Officers.
She averred that it was in the implementation of the Guidelines that she was issued a letter by the Ministry of Defence redeploying her to Command Secondary School Ibadan, that by the implementation of the Guidelines, she was demoted and has lost her position as a Director and Head of Education Services Department on Grade Level 17.
In defence, the 1st and 2nd defendants- Head of Service of the Federation, Hon. Minister of Education did not file any process in defence of the suit but the 3rd defendant- Ministry of Defence averred that the ministry does not possess the legal personality to enable an action to be instituted against it, and urged the Court to strike it name.
The 4th defendant- AGF submitted that no allegation of wrongdoing or claim was made against her and that none of the claims sought by the claimant relates directly to the FG, and urged the Court to strike out its name from the suit as there is no reasonable cause of action against him.
In a well-considered judgment, the Presiding Judge, Justice Olufunke Anuwe struck out the names of the Ministry of Defence and the AGF from the suit on the ground that the Ministry of Defence lacks juristic personality to sue or be sued in the name in which it was sued in the case, and that there is no claim or complaint directly against the Federal Government which the AGF is joined to defend.
Justice Anuwe held that the provisions of the Harmonized Retirement Age for Teachers in Nigeria Act apply to the claimant as an Education Officer, and she is entitled to compulsorily retire from service on attainment of 65 years of age or 40 years of pensionable service.
The Court affirmed that the Act did not give any condition or procedure for a teacher to qualify for the extended retirement age or length of service, and the Act did not also set any conditions or criteria for a teacher to benefit from the extended retirement age or length of service and did not give any person or authority or office power to make any regulation, policy or guidelines for the implementation of the provisions of the Act.
Justice Anuwe declared that the guidelines in Exhibits FK 2 and FK3 were not made under any powers conferred in the Act and is therefore ultra vires the powers of the makers.
“As a result of the foregoing, the claimant was unable to show that her redeployment was a result of the application of the Guidelines. She also failed to prove that her redeployment was inconsistent with the Harmonized Retirement Age for Teachers in Nigeria Act. Accordingly, I find no cause to fault the redeployment of the claimant.” The Court ruled.
