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JUDGMENT Introduction and claims The claimant filed this complaint against the defendant on the 18th of September 2013 together with the accompanying processes. By an amended statement of complaint filed on 24th March 2015 she is seeking the following reliefs: 1. A DECLARATION that by virtue of the terms and conditions of her employment and the condition of service governing her appointment, the claimant is still in the employment of the defendant, as the claimant’s appointment was never terminated in accordance with the due process of law. 2. A DECLARATION that having regard to the provisions of Chapter 2.2.6, 2.2.7.1, 2.2.7.2, 2.2.7.3, and 2.2.7.4 of the Federal Airports Authority of Nigeria (FAAN) Staff Conditions of Service of 1st July, 2011, the claimant, who was appointed as Acting General Manager and Head of Audit Department in the Defendant, with effect from Monday 18th June, 2007, vide the defendant’s Letter, dated 15th June, 2007, and who was confirmed as Acting General Manager and Head of Audit Department and promoted as Deputy General Manager (Audit)/Head of Department on Grade Level 16 in the defendant, vide the defendant’s Letter dated 23rd June, 2008, is by operation of law the substantive General Manager and Head of Audit Department in the defendant, as at the time of her disengagement or removal from the defendant on 21st of September, 2012. 3. A DECLARATION that by the combined effect of the provisions of Chapter 4.3.1 (a, b & c), Chapter 4.3.2 (i, ii & iii (a, b, c & d); and Chapter 12.1 of the Federal Airports Authority of Nigeria (FAAN) Staff Conditions of Service of 1st July, 2011, the defendant and the Ministry of Aviation lack the powers to remove the claimant from office or disengage her from her employment except as stipulated in the said provisions and as spelt out by the relevant provisions of the Public Service Rules of the Federal Republic of Nigeria. 4. A DECLARATION that the removal or disengagement of the claimant from the said position and office by the Ministry of Aviation and the defendant is illegal, null and void and/or wrongful. 5. A DECLARATION that the prevention of the claimant from discharging the functions of the said office as Acting General Manager and Head of Audit Department of the defendant from the 4th of October, 2012 up to now is illegal and amounts to a breach of the said provisions of the said Federal Airports Authority of Nigeria (FAAN) Staff Conditions of Service and Public Service Rules. 6. AN ORDER directing the defendant to reinstate the claimant to her office as Deputy General Manager (Audit), Acting General Manager (Audit) or substantive General Manager (Internal Audit) in the defendant forthwith. 7. AN ORDER directing the defendant to pay the claimant all her salaries, allowances, bonuses and other emoluments or entitlements from the said date of her removal or disengagement from service, up to now. 8. TWENTY MILLION NAIRA (N20,000,000.00) being exemplary damages for the action of the defendant against the claimant and the cost of this action. The defendant filed its amended statement of defence on the 19th February 2016 together with the relevant accompanying processes. The claimant filed a reply to the statement of defence on 20th January 2016. The defendants filed three Notices of Preliminary Objection all bothering on jurisdiction. The first two objections were in respect of Limitation, and Pre-Action Notice to the defendant. The two objections were dismissed in a considered ruling delivered on 12th February 2015. The Ruling on the 3rd objection dated 18th May 2015 and filed on the 19th May 2015 was reserved till judgement and the parties were directed to proceed to trial. Case of the claimant The claimant’s case on the pleadings is that she is a member of staff of the defendant and specifically an Acting General Manager (Audit) therein. The claimant stated that she has a certificate in Accounting and a Masters in Business Administration (MBA) from the Lagos State University. The claimant averred that she undertook the one year compulsory National Youth Service Corps (NYSC) programme with the Federal Aviation Authority of Nigeria (FAAN) – the defendant, between 1982 and 1983, and that after the completion of her NYSC programme she took up employment in the Nigerian Airports Authority the predecessor of the Federal Aviation Authority of Nigeria (FAAN) – the defendant, in September, 1983, as Higher Executive Officer (Audit), on a Salary Scale Level 8 (2) in the Public Service. The claimant further averred that she was born on 11th day of April, 1954 and that she would attain sixty (60) years of age on 11th April, 2014 when she is expected to retire under her Conditions of Service and the Pension Reform Act. The claimant stated that on 11th April 2014, she would have worked in the defendant for a continued period of thirty-one (31) years but for her premature and untimely disengagement from the service of the defendant. The claimant stated that from the period of her appointment, she enjoyed several promotions to the position of Acting General Manager (Audit) and Head of Audit Department in the defendant with effect from Monday 18th June, 2007; and a letter of confirmation of Acting Appointment/Promotion to Deputy General Manager (Audit)/Head of Department on Grade Level 16, dated 23rd June, 2008 was issued to her. The claimant averred that by a letter dated 16th February, 2010, her Acting Appointment as Acting General Manager (Internal Audit) was renewed for another period of six (6) months with effect from 25th January, 2010. She further averred that owing to her fidelity to sound financial principles and audit ethical standards, the defendant subjected her to an examination and interview which was conducted to fill the position of a substantive General Manager (Audit), amongst other positions of General Managers stated to be filled in an internal advertisement. The claimant stated that the exercise as it related to her status and position in the defendant was a sham, in the sense that prior to the said examination and interview, she had been in the position of Acting General Manager without being confirmed as the substantive General Manager for 3 (three) years. The claimant averred that the Board of the defendant met on the 11th and 12th of November, 2010 and resolved that she ought not to have been made to go through the examination and interview and that the position of “Acting appointment” ought not to be allowed to continue indefinitely; and that due process was not followed in the examination and interview process carried out by the management. The claimant averred that as a result of the Board’s Resolution, the outcome of the examination and interview which also extended to 3 other departments was never communicated by the defendant or implemented by it. That having been prevented by the Board from frustrating her out of the defendant, the management waited and made the next move vide their letter of disengagement from service dated 21st September, 2012 in line with the transformation programme in the Aviation Sector. The claimant averred that from the time of her employment up to the time of her removal from office, a period of over twenty-nine (29) years, she performed her duties diligently and impeccably without any blemish. The claimant averred that her employment in the defendant is governed by the provisions of Federal Airports Authority of Nigeria Act, Cap F5, Volume 6, Laws of the Federation of Nigeria, 2004, and the provisions of the Federal Airports Authority of Nigeria (FAAN) Staff Conditions of Service of 1st July, 2011. The claimant stated that her employment with the defendant is a tenured and pensionable employment, to which the Pension Reform Act, 2004 is applicable. The claimant stated that by operation of law, she had become the substantive General Manager and Head of Audit Department in the defendant at the time of her removal from the defendant on 21st of September, 2012 and that the Ministry of Aviation and the defendant lack the powers to remove her from office except as stipulated in the provisions of the FAAN Staff Conditions of Service and as spelt out by the relevant provisions of the Public Service Rules. The claimant stated that on 1st of October, 2012 the Managing Director George Uresi invited all the officials of the defendant functioning in acting capacities to his official quarters, and reportedly distributed letters of disengagement to them; she was not at the meeting being Independence day, a public holiday. She averred that when she resumed work on the following day Tuesday, 2nd October, 2012 she could not gain access to her office as same was locked up and sealed off on the instructions and directive of the Managing Director. That upon inquiring from the Human Resources Manager why her office was sealed off, she was informed that she had been issued a letter of disengagement from service by the Managing Director with an instruction that she must first collect and acknowledge the receipt of service of the letter on her before being allowed into her office to pick her personal effects. The claimant stated that left with no other choice, she collected the letter of disengagement, proceeded to her office to pack her personal effects and left. The claimant stated that overtime and especially when she became the Acting General Manager Audit in the Headquarters of the defendant, she was informally but persistently accused of rigidity or inflexibility in the discharge of her duties, implying that she was too principled and unyielding in matters in which she always insisted that due process and laid down rules and regulations must be followed. The claimant stated that she has exhausted all remedies available to her by writing letters through her Counsel demanding administrative remedies; and she believes that she was victimized by the Management of the defendant and the Ministry of Aviation as a result of her principled discharge of her duties in the defendant. The claimant testified in support of her case. She adopted her statements on oath. They were in the exact terms of the pleadings and she relied on her admitted documents. Under cross examination, the claimant told the court that she had spent 29 years in service before she was disengaged, and that she was now 62 years old. She said she was on Grade level 15 when she was appointed Acting General Manager in 2007 The claimant confirmed that the position of substantive General manager is above Grade Level 15. She admitted that there is the need for the Board to approve and confirm an acting appointment on Grade level 15 and she stated that there was no Board in place at that time. The claimant told the court that in June 2008 she was on Grade level 16. Upon being shown exhibit C5, she confirmed that neither Grade level 16, or her name was mentioned. The claimant told the court that it was the decision of the Board to advertise the position of substantive General Manager, but she stated that the position was not advertised. The claimant told the court that where there is no internal capacity for a position, the vacancy would be advertised. She said there was no internal capacity for the position of General Manager Audit and that was why the position was to be advertised, but that the position was not advertised. The claimant then closed her case. Case of the defendant The case of the defendant on the pleadings is that the claimant was an Acting General Manager (Audit). The defendant averred that the basis for the examination and interview conducted to fill the position of substantive General Manager (Audit) was in line with its standard practice to ensure that due process is followed in the selection of the right candidate from among those who applied for the position sequel to the internal advertisement. The defendant stated that the examination and interview conducted were consistent with the mandatory provisions of the FAAN Conditions of Service; and further stated that the Board never resolved at its meeting of 11th and 12th November 2010, or at any time whatsoever, that the claimant ought not to undergo the examination and interview. That the actual resolution of the Board at its meeting of 11th and 12th November, 2010 was that the vacant position of General Managers, including General Manager Audit, should be advertised in the National Dailies. The defendant stated that it disengaged the claimant from service in line with the extant provisions of its Conditions of Service. The defendant averred that the employment of the claimant is not governed by the Federal Airport Authority Act but by its conditions of service; and that the claimant’s employment is not a tenured employment. The defendant stated that by the provisions of its staff conditions of service of 1st July, 2011, the claimant was not entitled to automatic promotion to the position of the substantive General Manager or Head of Audit Department; and that by the relevant provisions of the conditions of service which governs the employment of the claimant, it has the powers to remove the claimant from her employment. The defendant averred that the Public Service Rules are not applicable to the employment of the claimant and that the claimant’s employment was properly terminated in line with the FAAN conditions of service. The defendant averred that at no time was the claimant locked out of the office neither was there any such instruction that she must collect and acknowledge the receipt of the letter before being allowed to pick her personal effects. The defendant stated that that the claimant was never accused of rigidity or inflexibility in the discharge of her duties and was never victimised for any reason whatsoever during the course of her engagement. The defendant stated that the claimant did not explore all internal remedies before instituting this action and there was no pre-action notice to it of the claimant’s intention to institute this action. The defendant called Mrs Caroline Akintayo (DW) Chief Human Resource Officer to testify. She adopted her statement on oath. Under cross examination she told the court that the defendant is a Federal Government Agency. DW told the court that it is correct that an employee of the defendant is employed under the Public Service Rules. She stated that the Public Service Rules does not govern the employment of staff of the defendant. DW informed the court that it is the defendant’s own conditions of service (FAAN conditions of service) that governs the employment of its staff and that the claimant was employed under the conditions of service for FAAN. DW told the court that it was not correct to say the claimant was employed under the Public Service Rules. DW admitted that there is no record of disciplinary proceedings or action against the claimant. DW confirmed that the management did not place an external advertisement of the position as resolved by the Board in the National Newspapers. She informed the court that the claimant was disengaged as a result of Government restructuring exercise. She admitted that it is not written in the conditions of service that an officer can be disengaged as a result of transformation restructuring. DW said there was a directive from Government to disengage and that there was no Board in place at the time. The defendant then closed its case. Final address The defendant’s final address is dated 23rd February 2017 and is filed the same day. The claimant’s final address is dated 4th May 2017 and is filed the same day. The defendant’s reply on point of law is dated 12th October 2017 and is filed on 9th November 2017. Counsel adopted their respective final addresses. Learned counsel to the defendant submitted the following issues for determination: i. Whether the employment of the claimant is governed by: a. The FAAN Staff Conditions of Service or the Federal Airports Authority of Nigeria Act; b. The Federal Airports Authority of Nigeria Act and thus statutorily flavoured; or c. The Public Service Rules of the Federal Republic of Nigeria? ii. Whether the termination of the claimant’s appointment with the defendant was illegal and/or wrongful? iii. Whether by operation of law, the claimant became the substantive General Manager (Audit) in the defendant. iv. Whether the claimant is entitled to any Exemplary Damages. He submitted that on the evidence, the claimant’s appointment is governed by the provisions of the FAAN staff conditions of service (exhibit C6) and not the FAAN Act or the Public Service Rules. It was his further submission that the claimant’s employment is not one with statutory flavour citing Iderima v Rivers State Civil Service Commission [2005] LPELR-1420 (SC), Idoniboye-Obu V NNPC [2003] LPELR-1426 (SC), Okomu Oil Palm Company Ltd VO.S.Iserhienrhien [2001] 6 NWLR (Pt 710) 660 at 677. Learned counsel further submitted that the defendant as the claimant’s employer is empowered to fire for any reason or for no reason at all and that the claimant’s appointment was validly terminated referring to Chukkwuma V Shell Petroleum [1993] 4 NWLR (Pt 289) 512. It was his further submission that the evidence adduced reveals that the claimant did not become the substantive General Manager and Head of the Audit Department. He finally submitted that the claimant is not entitled to exemplary damages or any damages and he urged the court to dismiss the claimant’s suit with substantial costs. Learned counsel to the claimant submitted the following issues for determination: i. Whether the disengagement of the claimant from the service of the defendant by a Letter of Disengagement dated 21st September, 2012 without recourse to the procedure as stated in the FAAN Act, Public Service Rules and the FAAN Conditions of Service was not illegal, null and void and/or wrongful. ii. Whether the claimant is entitled to the reliefs sought. He submitted that the claimant’s appointment is one with statutory flavor governed by the FAAN Act, the Public Service Rules and the FAAN staff conditions of service of 1st July 2011. He referred to Section 318(1) of the 1999 Constitution for the definition of Public Service of the Federation and submitted that the defendant derives its power to make and approve the staff conditions of service from Section 10 (1) of the FAAN Act. Learned counsel cited Idoniboye-Obu V NNPC [2003] 2NWLR (Pt 805), Shitta Bey V FPSC[1981]1 SC 40 and argued that there is a nexus between the Constitution, the FAAN Act and the FAAN staff conditions of service. He then submitted that the claimant’s employment being one with statutory flavour could not be legally determined by the letter of disengagement without recourse to the procedure in the FAAN Act, Public Service Rules and the FAAN Conditions of Service citing PHCN Plc V Offoelo [2013] 4 NWLR (Pt 1344) 408, Ujam V IMT [2007]2 NWLR (Pt 1019) 470. Learned counsel argued in the alternative that if the court holds that the claimant’s employment is not with statutory flavour, the termination of the claimant’s employment was still wrongful as the procedure laid down in the conditions of service was not followed and does not provide for disengagement based on a transformation programme citing PHMB V Ejitagha [2000] 11 NWLR (Pt 677) 154 at 160. He submitted that the claimant is entitled to the reliefs sought having discharged the burden of proof placed on her by adducing cogent and relevant evidence. Replying on point of law, learned counsel to the defendant submitted that the definition of Public Service in Section 318 (1) (e) & (g) of the 1999 Constitution does not apply to the employment of the claimant citing Okomu Oil Palm Ltd v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 682 Para A-D. He further submitted that where a section of a statute delegates power to an authority or body to make conditions of service for its staff does not make the employment of such staff statutorily flavoured relying on Idoniboye-Obu V NNPC supra. He submitted that the cases of Olaniyan V University of Lagos, Shitte Bey V FCSC, PHCN V Offoelo supra relied on by the claimant’s counsel are inapposite and not on all fours with this instatnt case. Decision I have carefully considered all the processes filed, the documents in support, authorities and arguments canvassed by counsel in this matter. The issues for determination in this judgement are: (i) whether the Court has jurisdiction to entertain this suit; (ii) whether the claimant’s employment is one with statutory flavor; (iii) whether the claimant ought to be entitled to her claims. In considering the merit of this case, I will begin with the 3rd Notice of Preliminary Objection raised by the defendant dated 18th May 2015 again seeking an order striking out this suit for want of jurisdiction. The grounds upon which this order is sought are that the claimant by her rank, position and the provisions of Section 91 of the Labour Act is not an employee as envisaged by Section 254C (1) (a) of the 1999 Constitution as amended; the claims of the claimant do not fall within the jurisdiction of the Court; to entertain the claims of the defendant will be a breach of the defendant’s fundamental right to a fair hearing as provided for in Section 36 of the 1999 Constitution. It is settled law that jurisdiction being fundamental, the court must first determine this issue that questions its judicial authority and power to entertain any matter. Where a court lacks jurisdiction to determine a suit, the entire proceedings however well conducted and the judgment will be a nullity. A court is only competent to entertain a case when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V Nkemdilim [1962] NSCC 374 at 379-380. The jurisdiction of this court is governed both by Section 7 of the NIC Act 2006 and the wider provisions of Section 254C (1) (a) to (m) of the 1999 Constitution Third Alteration Act 2010. Section 254C (1) (a) provides as follows: (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by any Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health , safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; The claimant’s complaint before the court is in respect of her removal from employment. It is without doubt an employment issue arising from the workplace. The main claim and the ancillary claims as can be seen from Pages 1 and 2 above are all in respect of her disengagement from the services of the defendant. They all fall squarely within the purview of Section 254C (1) (a) of the 1999 Constitution Third Alteration Act 2010. In the exercise of its interpretation jurisdiction, courts are enjoined to construe words in their ordinary and grammatical meaning without any colouration. Where specific things or persons are mentioned, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449. The word “employment” in Section 254C (1) (a) is not qualified, and it must be given its literal and ordinary meaning. The word employment must therefore be read to mean all persons who are in, or were in employment at the material time or a particular time; in whatever rank, position, cadre or status. Learned counsel to the defendant is therefore in error when he submits that the claimant is not an employee as envisaged by Section 254C (1) (a) of the 1999 Constitution Third Alteration Act 2010. I hold that this Court is conferred with jurisdiction to entertain this suit. The objection is hereby dismissed. The law is settled that when an employee complains that his employment has been unlawfully terminated, he has the burden not only to place before the court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer. See Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589. As required, the claimant has placed before the court her letter of appointment into the defendant (exhibit C1), status and service details (exhibit C2, C3 & C4), Minutes of the Board (exhibit C5), the FAAN Staff Conditions of Service of the 1st July 2011 (exhibit C6) and her letter of disengagement (exhibit C7). There is no dispute between the parties on the following facts: (i) the defendant is a statutory body constituted under the Federal Airports Authority of Nigeria Act, CAP 5 LFN 2004; (ii) the claimant was employed by the defendant in 1983; (iii) she was Acting General Manager (Audit) Salary Grade Level 16. The claimant asserts that her employment is regulated by the Federal Airports Authority of Nigeria Act, the FAAN staff conditions of service and the Public Service Rules. The defendant disputes this. The claimant’s letter of appointment (exhibit C1) does state in clause 6 of the letter that: Leave and other conditions are as obtainable in the Federal Government Establishments. From the pleadings exchanged by the parties, the defendant accepts its Statutory status as an Authority/Agency constituted by the Federal Government of Nigeria. There is therefore no doubt or dispute that the defendant as Authority/Agency of Federal Government falls within the definition of Public Service in Section 318 of the 1999 Constitution as amended. It is reproduced as follows: “Public Service of the Federation” means service of the Federation in any capacity in respect of the Government of the Federation, and includes service as: (c) Member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly. It follows therefore that the claimant as a staff of the defendant is in the Public Service of the Federation. I find her to be a public officer whose appointment is pensionable; and I so hold. See Adekoye v NSPMC Ltd [2009] 5 NWLR (Pt 1134) 322 at 341. The Public Service Rules govern the conditions of service of Federal Public Servants. See Shitta-Bey V Federal Public Service Commission [1981] 1 SC 26 at 35, Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240. They have been made pursuant to the powers conferred by the Constitution and have constitutional force. They invest the public servant, over whom they prevail, a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. The claimant has also asserted that her employment is regulated by the provisions of the FAAN Act and the FAAN staff conditions of service (exhibit C6). Section 10 (1) of the FAAN Act is reproduced as follows: Subject to this Act, the Authority may appoint such other persons as staff as it considers necessary and may approve conditions of service. An employment is said to have statutory flavor if it is created and governed by statute or regulations derived from statute. See Shitta-Bey V Federal Public Service Commission [1981] 1 SC 40, National Electric Power Authority V Ango [2001] 15 NWLR (Pt 737) 627 at 649 -650, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589. The position of Acting General Manager (Audit) occupied by the claimant is not created by the FAAN Act; neither is it regulated by the FAAN Act. I therefore hold that the claimant’s appointment is not one with statutory flavor. While the claimant asserts has testified that the FAAN conditions of service is one of the regulations governing her appointment, the defendant asserts that it is the only document governing her appointment. I find from the primacy of facts and evidence (exhibit C6) that the FAAN conditions of service, and its amendments can only be ratified by the Head of the Civil Service of the Federation. I also find that the Board in exhibit C5 had admonished the management from presenting issues not in conformity with the Public Service Rules and directed that the FAAN staff conditions of service be reviewed to be in alignment with the Public Service Rules. It is therefore not in doubt that the employment relationship of the defendant and the claimant is also regulated by the provisions of the Public Service Rules. I therefore hold that the claimant’s appointment is regulated by the Public Service Rules, and the FAAN staff conditions of service. The claimant has however failed to place before the court the Public Service Rules she relies on. Therefore, the court will apply the provisions of the FAAN conditions of service (exhibit C6). There is no dispute that the claimant was in the service of the defendant from 6th October 1983 and that she enjoyed several promotions up till her appointment as Acting General Manager Internal Audit. The claimant has complained that she was Acting General Manager Audit for a period of 3 years without being confirmed and that the defendant’s management subjected her to the examination and interview conducted to fill the substantive position of General Manager Audit that turned out to be a sham as the results were never released. Her evidence is that she has been victimized by the management for insisting that due process be followed in the discharge of her duties. The defendant did not rebut the shifted burden. The claimant has testified that by the provisions of chapter 2.2.6, 2.2.7.1 to 2.2.7.4 of the FAAN staff conditions of service, she had become the substantive General Manager and Head of Audit at the time she was given a letter of disengagement. The minutes of the defendant’s Board meeting held on 11th November 2010 (exhibit 5) is in evidence. The Board found that the management was not guided by the Public Service Rules and due process was not followed in the conduct of the exercise carried out by the management to fill the position; that the position of Acting Appointment indefinitely was no longer permissible in the Public Service and approved that the FAAN conditions of service be reviewed to align with the Public Service Rules; and that the position be re-advertised. There is no evidence that the FAAN conditions of service was reviewed at the material time as directed, and the evidence of both DW and the claimant is that the position was never advertised as directed by the Board. Now, the provisions of clause 2.2.7.4 of the FAAN conditions of service (exhibit C6) provides as follows: The Acting Appointment of an officer shall cease on the effective date of either confirmation of the officer acting or recruitment to the vacant duty post. The claimant was appointed Acting General Manager and Head of Audit Department with effect from 18th June 2007 as seen in exhibit C2. The claimant’s acting appointment was subsequently confirmed by a letter dated 23rd June 2008 (exhibit C3) with the heading ‘Letter of Confirmation of Acting Appointment/Promotion’. The provision of clause 2.2.7.4 therefore entitles the claimant to automatic promotion to the position of substantive General Manager and Head of Audit Department of the defendant. I hold that the claimant became the substantive General Manager and Head of Audit Department on the 23rd June 2008. The defendant is bound by the conditions of service that it has placed reliance on, and the management ought not to have subjected the claimant to any examination or interview when it knew that by the letter of confirmation (exhibit C3) the claimant had become the substantive General Manager and Head of Audit Department. I hold that the position was never vacant. I declare that the claimant was the substantive General Manager and Head of Audit Department in the defendant from the 23rd June 2008 up till the time of her disengagement from the defendant on 21st of September, 2012. The defendant is hereby ordered to pay the claimant the differential in salaries and allowances of an acting and a substantive General Manager with effect from 23rd June 2008 to the 21st September 2012. There is no evidence that the appointment of substantive General Manager is tenured under the tenure policy as alleged by the claimant. The claimant was in the service of the defendant for an unbroken period of 29 years; and she had not attained the retirement age of 60 years or 35 years in service when she was given a disengagement letter. The evidence of DW is that there is no record of disciplinary proceedings or action taken against the claimant while she was in service; The letter of disengagement (exhibit C7) states the reason for her disengagement and it is reproduced as follows: DISENGAGEMENT FROM SERVICE Following the on-going transformation programme in the Aviation Sector as well as the need for efficient and effective service delivery, I am directed to inform you that you have been relieved of your duties as Acting General Manager, Internal Audit (HQ) with the Federal Airports Authority of Nigeria (FAAN) with immediate effect. 2. Consequently, you are hereby directed to prepare a comprehensive hand-over note to the most Senior Officer next to you and also hand over all Government properties in your possession. 3. On behalf of the Federal Government of Nigeria, I wish you the very best in your future endeavor. George Uriesi Managing Director The claimant has complained that by the provisions of Chapter 4.3.1, 4.3.2 and chapter 12.1 of the FAAN conditions of service the defendant lacks the powers to remove her from service. The provisions are reproduced as follows: CESSATION OF APPOINTMENT/EMPLOYMENT 4.3.1 (a) Without prejudice to the power of the Authority to dismiss, suspend or interdict as contained in these regulations, if the Board/Managing Director of the Authority considers that it is desirable in the interest of the Authority that an employee should be required to retire from the service of the Authority on any ground, a full report shall be made. (b) The employee shall however be given an opportunity of submitting a reply to the complaints by reason of which his retirement is contemplated, and if after considering these reports, the Board/Managing Director of the Authority is satisfied, having regard to the Conditions of Service, the usefulness of the employee thereto and all other circumstances of the case, that it is desirable in the interest of the Authority so to do, it shall retire the employee and the employee’s service shall accordingly terminate on such date as the Authority shall specify. (c) In every such case, the question of pension and gratuity will be dealt with under the Authority’s Staff Pension and Gratuity Scheme or any Federal Government enactment governing such retirement in force at that time. 4.3.2 Termination (i) In addition to the provision of Chapter 2, section 2.2.4 for termination of appointment of employees with unsatisfactory probationary service, an unconfirmed employee may have his appointment terminated with a month’s notice or a month’s salary in lieu anytime during probation if his Head of Department sufficiently establishes against him cases of wantonness in the exercise of his functions and service to the Authority. (ii) An employee who is confirmed in the service may have his appointment terminated by the Authority on grounds of general inefficiency provided that he has previously been warned in writing by his Head of Department that his work has been unsatisfactory and copies of such warning has been forwarded to the Administration Directorate. (iii)(a) The appointment of a confirmed employee shall not be terminated on the grounds of general inefficiency until he has been given the opportunity to submit representation to the Managing Director through his Head of Department. (b) A confirmed employee whose appointment is terminated for inefficiency shall be given one calendar month’s notice in writing or one month’s pay in lieu of notice. Any leave entitlements accruing at the time of termination may be granted to run concurrently and terminate with notice, or if being terminated without notice such leave may be commuted to cash. (c) In all cases of termination, the Authority shall not be obliged to state the reasons for the termination of an employee’s appointment. (d) If an employee is terminated under pensionable circumstances, he will be entitled to pension and gratuity. There is no evidence that the claimant who had not reached the retirement age of 60 years or spent 35 years was required to retire from the service as provided in clause 4.3.1 (a) and that the procedure in 4.3.1(b) was complied with. Furthermore, there is no evidence that the claimant was inefficient in her duties and had been previously warned and given a hearing as provided for in clause 4.3.2 9 (ii) (iii a-d). There is no provision in the FAAN staff conditions of service for an officer to be relieved of his/her duty on grounds of a ‘transformation programme’. Furthermore, there is no proof of the so called ‘transformation programme’ before the court. The only proper conclusion to be reached is that the defendant had decided to remove the claimant from employment and could not do this applying the above provisions because there would be no basis. It therefore wrote the letter of disengagement giving the reason of ‘transformation programme’ even though this reason is not in its conditions of service. I find that the defendant failed to comply with its own procedure for cessation of appointment when it wrote exhibit C7 disengaging the claimant and truncating her career in the Public Service. The law is settled that a public officer does not hold his office at the mercy of the employer. The defendant had no right to terminate the claimant’s appointment without first complying with the conditions set down for cessation of employment. The appellate courts have frowned at the careers of public officers being truncated in this manner. The Supreme Court in Olaniyan V University of Lagos [1985] 2 NWLR (Pt 9) 599 at 654 put the position very succinctly: To remove a public servant in flagrant contravention of the Rules governing him, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilise the security of tenure of the public servant, frustrate his hopes and aspirations, and thereby act in a manner inimical to order, good government and well being of the society. See also NEPA V Ango supra. I find that the removal of the claimant from her employment was malicious and destabilised her security of tenure as a public officer. I declare that the removal of the claimant by the defendant was wrongful, and that the defendant could only properly remove the claimant from her employment by complying with the provisions of the FAAN staff conditions of service. I hold that the removal amounts to a breach of the FAAN staff conditions of service. The claimant has asked for an order of reinstatement to her office as substantive General Manager Audit. The claimant’s employment with the defendant was not with statutory flavour and so the prayer for reinstatement is refused. The claimant is however entitled to her salary in lieu of notice of termination, her gratuity, and her monthly pension payments. The defendant is hereby ordered to pay the claimant salary in lieu of notice as provided by the FAAN conditions of service, her terminal benefits, gratuity and also put the machinery in place to enable her receive her monthly pension payments. This judgement will be incomplete without stating the position that is a court of law and equity. By the provisions of Section 15 of the NIC Act, where there is any variance between the rules of equity and the rules of the common law, the rules of equity shall prevail. In this wise, the court cannot shut its eyes to the following facts: the claimant is a Public Officer who spent an unblemished and meritorious 29 years in the service of the defendant and would have been due for retirement on 11th April 2014 upon attaining 60 years of age and 31 years in service; she was not found wanting in her duties and had never been queried; she was victimised by the defendant’s management for her insistence on due process being the Head of the Audit Department; the defendant refused to accord her the rights and privileges of a substantive General Manager (Audit); the defendant removed her unceremoniously from employment in breach of her conditions of service. The claimant’s letter of disengagement was silent on the payment of her terminal benefits and pension. I find that since the wrongful removal of the claimant in September 2012, she has been denied her terminal benefits and pension. This is a period of about 6 years in which the claimant has no doubt been put to undue hardship and denied the enjoyment of her terminal benefits and pension. The claimant has made a claim for exemplary damages of N20,000,000.00 (Twenty Million Naira). Exemplary or aggravated damages are awarded in very restricted and enumerated situations as a punitive measure where malice or gross disregard for the law is proved- see Chief Williams V Daily Times of Nigeria [1990] I NWLR (Pt 124) 1, G.F.K.I (Nug Ltd) V NITEL Plc [2009] 13 NWLR (Pt 1164) 344 at 373. The conduct of the defendant in failing to comply with its staff conditions of service and the Public Service Rules is malicious, and is also oppressive of the rights of the claimant. The claimant has been wrongly denied the privilege of honourable retirement after 29 years in the service in the defendant. There can be no doubt that she has suffered as a result of the wrongful actions of the defendant. The defendant as an Authority of the Federal Government is expected to comply with its own rules and the Public Service Rules in its dealings with its officers. The Board of the defendant in exhibit C5 gave this directive to the management, but the management failed to heed to it. A situation in which the management fails to adhere to the guidance and directives of its Board of Directors is a recipe for chaos. The defendant is expected to know that with the sudden and immediate removal of the claimant from service, her terminal benefits and pension as provided in the FAAN conditions of service ought not to be denied her so as not to cause her undue hardship. Consequently, it is my considered view that the defendant should pay the claimant exemplary damages as a punitive measure to prevent a future re-occurrence to other public officers in its service. This I believe is equitable and meets the justice of this case. In this regard therefore, I award the sum of N2,000,000.00 (Two Million Naira) as exemplary damages to the claimant pursuant to the provisions of Section 19 (d) of the National Industrial Court Act. For all the reasons mentioned above, the claimant’s case succeeds. I hereby declare and order as follows: 1. The removal of the claimant from service by the defendant’s letter dated September 12, 2012 is wrongful and in breach of the FAAN staff conditions of service. 2. The claimant was the substantive General Manager and Head of Audit Department in the defendant from the 23rd June 2008 up till the time of her disengagement from the defendant on 21st of September, 2012. The defendant is ordered to pay the claimant the differential in salaries and allowances of acting and a substantive General Manager. 3. The defendant is hereby ordered to pay the claimant her salary in lieu of notice, her terminal benefits and her monthly pension. 4. The defendant is to pay to the claimant the sum of N2,000,000.00 (Two Million Naira) as exemplary damages. 5. Costs of N200,000.00 awarded the claimant. All sums are to be paid within 30 days. Thereafter, the sums shall attract interest at the rate of 10% per annum. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae