Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: JANUARY 30, 2015 SUIT NO. NICN/LA/74/2014 BETWEEN Mahmud Bayo Alabidun - Claimant AND 1. President of the Federal Republic of Nigeria 2. Minister of Aviation - Defendant REPRESENTATION A. A. Adewumi , for the claimant. Chriss Imy Irabor, Assistant Director, Federal Ministry of Justice, for the defendant. JUDGMENT This is a transferred case from the Federal High Court sitting in Ikoyi, Lagos. The claimant had taken up an originating summons at the Federal High Court dated and filed on 25th November 2011 praying for the determination of the following questions – 1. Whether or not the powers conferred on the 1st defendant under section 171 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to appoint and remove persons from public service extends to plaintiff’s office of General Manager (Legal) of the Federal Airports Authority of Nigeria. 2. Whether or not the plaintiff can be disengaged from his public service position or as a public servant except for the reasons and in accordance with the procedure stipulated in his conditions of service as a staff of the Federal Airports Authority of Nigeria. Upon the determination of the said questions, the claimant is claiming for – a) A declaration that the defendants’ letter Ref. No. FAAN.CA/CPF 4949/I/15 dated 4th October 2011 purporting to ‘disengage’ the plaintiff from his public service position or as a public servant is unconstitutional, unlawful, null, void and of no effect whatsoever. b) A declaration that the plaintiff is and continues to be in the public service, and in particular, in the office of General Manager (Legal) of the Federal Airports Authority of Nigeria until his appointment ceases by due process of law and in accordance with the staff conditions of service governing his contract of employment in the said Federal Airports Authority of Nigeria. c) Damages in the sum of N1 Billion for abuse of office by the defendants in unlawfully interfering with plaintiff’s employment as a public servant. In support of the originating summons is an affidavit of 8 paragraphs with 5 exhibits (Exhibits MBA1 – MBA5) attached together with a written address. The defendants had separately reacted to the claimant’s originating summons, but upon the transfer of the case from the Federal High Court to this Court, they jointly filed fresh written address dated 29th October 2014 but filed on 4th November 2014 to which the claimant filed on 24th November 2014 a reply on points of law. To the claimant, the facts of his case as deposed to in the affidavit of support are documentary and hence not in controversy. Briefly put, that on 25th April 2007, the Federal Airports Authority of Nigeria (FAAN), a statutory corporation created by the Federal Airports Authority of Nigeria Act Cap. F5 LFN 2004, employed the claimant as its General Manager (Legal Services) albeit on probation for two years (Exhibits MBA1 and MBA2). The employment was subsequently confirmed with effect from 9th May 2009 (Exhibit MBA3). That by reason of his employment he became a member of the ‘public service of the Federation’ within the definition of the term under section 318(1) of the 1999 Constitution, as amended. The employment was upon the conditions of service of the said FAAN (Exhibit MBA4). The claimant went on that on or about 4th October 2011, he was served with a letter authored by the 2nd defendant on the alleged directive or instruction or approval of the 1st defendant purporting to ‘disengage’ him from his employment “in line with Government’s Transformation Agenda and the reform in the Aviation Sector” (Exhibit MBA5). That on the strength of the said letter, he has been kept out of his office of employment with the said FAAN. The facts of the case according to the defendants are that the claimant was till 4th October 2011 General Manager (Legal) of the Federal Airports Authority of Nigeria, a position he was appointed to on 25th April 2007. That the claimant was relieved of his position as General Manager (Legal) of FAAN in 2011 along with others who the Interim Board believed, after a careful study, could not fit into the Transformation Agenda on the Aviation Sector of the current administration. Aggrieved by his removal, the claimant filed this suit. In terms of the issues for the determination of the Court, the claimant adopted the two questions submitted in the originating summons. The claimant continued that in the event that the two questions are answered in a manner favourable to him, the ancillary issue would arise as to whether and to which extent he is entitled to the consequential remedies which he claims. On question 1 i.e. whether or not the powers conferred on the 1st defendant under section 171 of the 1999 Constitution (as amended) to appoint and remove persons from public service extends to the claimant’s office of General Manager (Legal) of the FAAN, the claimant contended that the Federal Republic of Nigeria is a democracy governed by law and not the whims and caprices of any public official, elected or appointed, no matter how high ranking. As such, the affairs of government and governmental institutions, the powers rights and privileges of State officials, employees of government and government institutions, etcetera are ordered and bound by law. To the claimant, the office of the President of the Federal Republic of Nigeria is a high and powerful office, the highest and most powerful one in the country. However, that as high and powerful as it is, the Constitution (which created and invested powers and authority in the said office) has in the wisdom of its framers restricted the powers which the occupant of the office may exercise. That in so far as the power to appoint and remove any member of the public service of the Federation goes, the extent and limit of the President’s powers are contained in section 171(1) and (2) of the Constitution which stipulates thus – (1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President. (2) The offices to which this section applies are, namely – (a) Secretary to the Government of the Federation; (b) Head of the Civil Service of the Federation; (c) Ambassador, High Commissioner or other Principal Representatives of Nigeria abroad; (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and (e) any office on the personal staff of the president. The claimant went on that Exhibits MBA1, MBA2, MBA3 and MBA4 show that the claimant’s appointment was not by either of the two defendants herein. That the exhibits also show that the office into which the claimant was appointed and was serving in the public service is not one of the offices to which the power conferred on the 1st defendant in section 171(1) and (2) of the Constitution extends or applies. That to the extent that the FAAN qualifies as an “Extra-Ministerial Department” within the provision of section 171(2)(d) of the Constitution, the powers conferred on the 1st defendant to appoint and remove anybody from any office in the authority extends only to the “Head” thereof. That FAAN is a creation of statute, the Federal Airports Authority of Nigeria Act, section 9 of which stipulates that “there shall be appointed by the President, on the recommendation of the Minister, a Managing Director of the Authority who shall be the Chief Executive of the Authority and shall be responsible for the execution of the policies and the day-to-day running of the affairs of the Authority”. Apart from the Managing Director, section 2(1) of the Act creates a Governing Board for the Authority. That the claimant is neither the Managing Director nor even a member of the Board of the said FAAN liable to be appointed or removed by the 1st defendant or upon the recommendation of the 2nd defendant pursuant to sections 2(1)(a) and (i), 2(b) and 9 of the Act. It is the submission of the claimant that as General Manager (Legal Services), he was just any other member of staff which section 10(1) of the Act authorized the FAAN to employ subject to its own conditions of service for the staff. That Exhibit MBA4 is the conditions of service governing his employment in his public office of General Manager (Legal Services) of the said FAAN and nothing in it reserved a role for the defendants to interfere in the appointment and or continuance in office of any member of the staff to which the conditions of service applies. The claimant then urged the Court to answer this first question in the negative by stating it loud and clear that the 1st defendant cannot remove or interfere with the employment of any member of the public service except those occupying the offices listed in section 171(2) of the Constitution of which the office of General Manager (Legal Services) of the FAAN is not one. Regarding question 2 i.e. whether or not the claimant can be disengaged from his public service position or as a public servant except for the reasons and in accordance with the procedure stipulated in his conditions of service as a staff of the Federal Airports Authority of Nigeria, the claimant contended that the office of General Manager (Legal Services) of the FAAN, as is obvious from its title, is not a political office but a professional one within the public service. That Exhibit MBA4 is the conditions of service attending the said office. Chapter 4 at pages 23 – 45 of the said Exhibit MBA4 extensively sets out the infractions or offences or other circumstances upon which a staffer to which the conditions of service apply may be removed from office. The procedure to be followed in effecting such removal is also extensively set out in the said chapter of Exhibit MBA4. To the claimant, nowhere in Exhibit MBA4 is any power conferred on or reserved to the defendants or either of them to effect the removal of any staffer from any office to which the applicable stipulations of the said conditions of service apply. Beyond this, that the Court will also find nowhere in the said conditions of service entitling anyone, including the defendants herein to “disengage” any staffer for any reason outside the specifications of the said conditions of service. That in Exhibit MBA5, the 1st defendant purportedly authorized the disengagement of the claimant from his public office employment with his employers “in line with Government’s Transformation Agenda and the reform in the Aviation Sector”. That the reason stated for the removal will not be found anywhere in the conditions of service, assuming the defendants even had the power of removal which they purport to exercise. The claimant then urged the Court to answer this second question against the defendants and in his favour by restating it loud and clear that a member of the public service of the federation can only be disengaged from his/her position for reasons and in accordance with the procedure known to law, and not whimsically and or capriciously. In conclusion, the claimant submitted that in the event that the Court agrees with his suggested answers to the two questions submitted in the originating summons, he will be urging the Court to grant the remedies claimed as well. That Exhibit MBA5 should be declared unconstitutional, unlawful, null, void and of no effect whatsoever in view of section 171(1) and (2) of the Constitution, sections 2(1)(a) and (i), 2(b), 9 and 10(1) of the Federal Airports Authority of Nigeria Act, and chapter 4 of the Exhibit MBA4. That to the extent that Exhibit MBA5 is incapable of operating to disengage the claimant from his public service as General Manager (Legal Services) of the FAAN, the claimant urged the Court to declare that he remains and continues in that office until his appointment ceases by due process of law and in accordance with the staff conditions of service governing his contract of employment in the said FAAN. To the claimant, the claim for general damages is at large. That once the Court declares Exhibit MBA5 to be null, void and of no effect, the consequence would be that the claimant had never ceased to be entitled to the rights, privileges and benefits attendant to his public service employment. However, the claimant urged the Court to also make an award in general damages against the defendants to encourage them to understand and abide by their constitutional and legal limitations and discourage them from ignoring the right of subordinate public officers such as this claimant to be treated with fairness and subject to due process. The defendants then adopted the issues submitted by the claimant for determination. Regarding issue 1, the defendants contended that this issue as couched by the claimant is of no relevance to this case. That section 171 of the Constitution itemised in its subsection 2(a) – (e) offices to which the 1st defendant has the power to appoint and remove persons; and offices mentioned therein are those created by the same Constitution. It is, therefore, the submission of the defendants that the office of General Manager (Legal) Federal Airports Authority of Nigeria is not one of those contemplated by the said section. To the defendants, the 1st defendant indeed did not remove the claimant from office. That what the 1st defendant did was to approve the removal. It was the Interim Board of FAAN, Minister and Permanent Secretary of the Federal Ministry of Aviation, which is the parent Ministry of FAAN that terminated the appointment of the claimant. That at all times material to this case, the FAAN had no Board and as stipulated by item 5(a), (b) and (c) of the Second Schedule to FAAN Act, the powers of the Board were vested in an Interim Board comprising the Minister of Aviation as Chairman, the Permanent Secretary, Ministry of Aviation and the Managing Director of Federal Airports Authority of Nigeria (referring to section 2(4) of the FAAN Act Cap. F5 LFN 2004). That the letter dated 4th October 2011 disengaging the claimant as General Manager (Legal) was indeed signed by the Permanent Secretary, a member of the Interim Board for the Honourable Minister, the Chairman of the Interim Board. The defendants went on that section 10(1) of FAAN Act empowers the Authority to appoint such persons as it considers necessary as staff. That it is elementary that inherent in the power to hire is the power to fire. Section 170 of the Constitution provides – “... the Federal Civil Service Commission may, with the approval of the President and subject to such conditions as it may deem fit, delegate any of the powers conferred upon it by this Constitution”. Section 1 Rule 020101 of the Federal Government Public Service Rules then provides that “Appointments to public offices in the Federal Civil Service are made on the authority of the Federal Civil Service Commission...” That a community reading of the provisions of section 10(1) of the FAAN Act, section 170 of the Constitution and section 1 Rule 020101 of the Federal Government Public Service Rules will reveal that – a) The Federal Civil Service may with the approval of the President delegate its functions, which it delegated here to the Board of FAAN. b) Appointments into the public service of the federation are made on the authority of the Federal Civil Service Commission. The defendants further submitted that the President is the Head of Government and it was the government that removed the claimant from service in line with extant Rules and Regulations. Consequently, it is the submission of the defendants that the power of the Federal Airports Authority of Nigeria to appoint is as delegated by the Federal Civil Service Commission. That the Commission has the approval of Mr. President in delegating that power. That the approval of the President (1st defendant) for the removal from office does not amount to removal. His approval here is in the course of his avowed transformation agenda. That what the President approved was the intention of the Interim Board. His approval is proper and the consequential removal by the Interim Board legal. The defendants then relied on the provisions of paragraph 4.3.2(b) and (d) of the Federal Airports Authority Conditions of Service in addressing the termination of the claimant’s appointment as it relates to this case. That subparagraph (b) provides that ‘a confirmed employee whose appointment is terminated for inefficiency shall be given one calendar month’s notice in writing or one month’s pay (salary) in lieu of notice...’ That what is important here is the fact that an employee is entitled to one month’s salary in lieu of notice; as such this subparagraph should be read along with paragraph 4.3.3(i) of the same Conditions of Service. That subparagraph (d) provides that ‘if an employee is terminated under pensionable circumstance, he will be entitled to pension and gratuity’. For all intent and purpose, that this provision is aimed at protecting the interest of the employee in the event of termination of his appointment. In the instant case, that the pension and gratuity of the claimant (if he is qualified for either or both) are intact and available to him. Consequently, that the claimant loses nothing to his termination. The defendants also placed reliance on the provisions of section 7(i) of the Schedule to Chapter 2 of the Federal Republic of Nigeria Public Service Rules, which provides that – The government may at any time terminate the engagement of the person engaged by giving him three months notice in writing or by paying one month’s salary in lieu of notice. That at paragraph 4(c) and (d) of the 2nd defendant’s counter-affidavit, it was deposed as follows: (c) That proper procedure was followed before the Plaintiff was disengaged from service only that unlike other affected officers, he refused to collect one month’s salary in lieu of notice. (d) That one month salary in lieu of notice is still waiting for him in the office. The defendants continued that by virtue of Chapter 16 of the Public Service Rules, the claimant is bound by the provisions of Rule 160103 of the Rules which makes it clear that parastatals are to ‘…retain and improve existing rules, procedures and practices in their establishments and ensure that there are no deviations from the general principles contained in the Public Service Rules....’ If an officer is leaving his office, the provisions of section 7(i) of the Schedule to Chapter 2 of the Public Service Rules states that ‘the government may at any time terminate the engagement of the person engaged by giving three months’ notice in writing or by paying one month’s salary in lieu of notice’. To the defendants, it is not different from the provision of paragraph 4.3.2(b) of the Federal Airports Authority of Nigeria’s Condition of Service. The defendants went on that Rule 4.3.2(c) of the Federal Airports Authority of Nigeria Staff Conditions of Service provides that “in all cases of termination, the Authority shall not be obliged to state the reason for the termination of an employee’s appointment”. However, that at paragraph 1 of Exhibit MBA 5 attached to the affidavit in support of the originating summons, a reason was adduced for the disengagement of the claimant thus: “In line with Government’s Transformation Agenda and the reform in the Aviation Sector....” The defendants then submitted that the right to bring an employment to an end can be exercised by either party and when exercised requires no acceptance from the other. That once a notice is given to bring an appointment to an end it immediately becomes effective, referring to Lana v. University of Ibadan [1987] 4 NWLR (Pt. 50) 245. Furthermore, that when an employer brings the contract of employment to an end, the employment ceases immediately, relying on Chukwuma v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512. It is further submission of the defendants that it is the position of the law that an employer is entitled to terminate his employee’s appointment for good/bad or no reason at all, citing Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 26, Isievwore v. NEPA [2002] 7 SC (Pt. II) 125. Also referred to the Court is Jombo v. PEF (Mgt Board) [2005] 7 SC (Pt. II) 18 at 34, where Pats-Acholonu, JSC stated that – Termination of appointment is indeed always to put paid to any job or assignment one is holding or for the time doing. The issue of whether the person whose service is terminated accepts it or not does not arise. Even if the person whose appointment has been brought to an end by a letter of termination challenges it in Court, that does not mean that the employer had any other intention other than to put an end to the job description held by the subject of the termination letter. The defendants then submitted that a public service appointment is not a life appointment; and that on the position of the statutory age of retirement, our Courts have restated over time that the mere fact that a statute or contract of employment fixes the age of retirement does not mean the employee has secured an employment for life or that the employment cannot be terminated, referring to Abukogbo v. African Timber & Plywood Ltd [1966] NMLR 312, Sogbetun v. Sterling Products Lts [1973] I/CCHCJ/49, ECN v. Nicol [1968] 1 All NLR 201, Nigerian Produce Marketing Board v. Adewunmi [1972] 11 SC 111 and the provision of Rule 020806(iii) of the Public Service Rules, which provides that “an officer whose service is no longer required in the event of abolition of office, re-organization of the office or redundancy shall be required to leave the service”. The defendants then submitted that in the instant case, the services of the claimant are no longer required for reasons of re-organization of the office and it behoves on him to leave, peacefully. It is the submission of the defendants that the declaration that the decision contained in defendants’ letter concerning the claimant is ultra vires the defendants’ constitutional authority is not true as it represents a gross misapprehension of the letter referred to and the relevant laws. That the President did not terminate the claimant’s employment; it was the Interim Board of FAAN that did. That the defendants amply demonstrated earlier that the President being the Head of government has the power to approve the removal of persons employed into the Civil Service from the service. It is further submitted by the defendants that by virtue of Rule 090102 of the Public Service Rules, any officer may address a petition/appeal to the Head of Government (President). That Nigerian case law has consistently held that the Court will not compel an employer to keep an employee at its own peril or against his will because; the law does not command the impossible, citing Chukwuma v. Shell Petroleum (supra), UBA v. Ogboh [1995] 2 NWLR (Pt. 380) 647, Garuba v. Kwara Investment Co. Ltd [2005] 1 SC (Pt. 11) 80 and Obo v. COE Bendel State [2001] 1 SC (Pt. II) 52. On whether the claimant is entitled to damages, the defendants submitted that Hon. Justice Uwaifo, JSC had occasion to x-ray the award of general damages to a plaintiff in Rockonoh Property Co. Ltd v. Nigeria Telecommunications Plc & anor SC.71/1995, the Judgment of which was delivered on Friday 13th July 2001 wherein he held thus: ...if there is need for award of general damages, it must be because of the collateral consequence of some act of the defendant either arising from negligence or trespass which may be suitable for compensation at large...; in the latter (general damages), they are averred, if necessary under specific heads of claim, presumed in law to be the direct and natural consequence of the act complained of.... It is the submission of the defendants that for the claimant’s prayer for an award of general damages to succeed, he must make out a case entitling him to judgment. That he has not done so. That the termination of his appointment was done within the ambit of the law and other extant instruments. His pensions and gratuity, if he is qualified, are still available to him. He has suffered no loss. That the defendants have not infringed on his rights and interests in any way untoward and as such he is not entitled to compensation. It is the further submission of the defendants that on the basis of the facts adduced and laws copiously referred, this Court should throw out comprehensively, the claimant’s case; and should this Court uphold the defendant’s submission so far, the issue of damages will not arise as the claimant is entitled to nothing in general damages having suffered no damage. The defendants then implored on the Court to discountenance the claimant’s claim, uphold their submissions and dismiss this suit. The claimant reacted to the defendants’ submissions on points of law. To the claimant, the defendants’ narration of facts of the case is incorrect to the extent that it asserts that the removal of the claimant was based on the decision of an Interim Board. That there was no mention of any Interim Board as the originator of the decision to remove the claimant in Exhibit MBA5 or in the counter-affidavit of the defendants. Furthermore, that the defendants’ by paragraph 4.1 of their written address have conceded question 1 (formulated also as issue one) in favour of the claimant. That the defendants have agreed with the claimant that section 171 of the Constitution which itemises the offices in respect of which the President has power to appoint and remove person does not apply to the claimant. The claimant continued that in paragraph 4.2 of the defendants’ written address, the defendants had submitted that the claimant’s removal was based on approval of the 1st defendant to the Interim Board of FAAN. That in another breath, the defendants also attribute the removal to the Minister and Permanent Secretary of the Federal Ministry of Aviation as persons(s) responsible for the removal of the claimant on the instruction of the 1st defendant. In all the scenario presented, that the defendants have not shown to the Court specific statute which confers the powers exercised by the defendants and no evidence placed before the Court as to the existence of any Interim Board which allegedly decided to remove the claimant from office and the source of such powers. To the claimant, in the determination of a case commenced by originating summons, it is the affidavit and counter-affidavit that constitute pleadings; it is, therefore, not sufficient to provide bare denials in the counter-affidavit as done in this case by the defendants as bare denials amount to no denial in law, relying on Nigerian National Petroleum Corporation (NNPC) v. Famfa Oil Ltd [2012] 17 NWLR (Pt. 1328) 163. It is the further submission of the claimant that the submission of learned counsel in paragraph 4.2 amounts to providing evidence from the Bar as opposed to presentation of legal arguments in support of factual deposition by the defendants. That there is nowhere in the counter-affidavit where the defendants deposed to the facts which the learned counsel for the defendants put in his written address. The claimant accordingly urged the Court to discountenance the evidence couched as submission given that counsel is not allowed to proffer evidence in a written address, citing Vassilev v. Paas Industry Ltd [2000] 12 NWLR (Pt. 681) 347 and Sanyaolu v. INEC [1997] 7 NWLR (Pt. 612) 600 at 611. The claimant went on that assuming without conceding that counsel can provide such evidence in the written address, the position canvassed in the said paragraphs run counter to documentary evidence before the Court. Exhibit MBA5 is the letter dated 4th October 2011 written to the claimant informing him of his removal from office. The said letter made no reference to any Interim Board as the source of the decision to remove the claimant from office and neither did the defendants show to the Court the statutory powers under which the Minister or the Permanent Secretary possessed the powers to remove the claimant from office without recourse to the terms and conditions shown in Exhibit MBA4 governing the claimant’s employment. To the claimant, where an officer claims to be exercising a delegated power under a statute, the fact of such delegation must be proved to the satisfaction of the Court by providing credible and verifiable basis of the delegation. In the instant case, that Exhibit MBA5 which is the letter authored by the Permanent Secretary of the Ministry of Aviation did not indicate pursuant to which law or statute the 1st defendant approved the removal of the claimant. In the said letter, the defendants stated that the claimant is removed by the 2nd defendant on the instruction of the 1st defendant based on what it called “transformation agenda and the reform in the Aviation Sector”. That the defendants failed woefully to show to the Court where or how they derive the powers to remove the claimant from office on the basis of a “transformation agenda and the reform in the Aviation Sector” without recourse to the conditions of service as it relates to the claimant. The claimant, therefore, submitted that the submission of counsel is nothing but a red herring designed to justify an otherwise illegal and ultra vires act of the defendants. The defendants in paragraphs 4.2, 4.3 and 4.4 had urged the Court to do a community reading of section 10(1) of the FAAN Act, section 170 of the Constitution and section 1 Rule 020101 of the Federal Government Public Service Rules to the effect that the Federal Civil Service Commission may with the approval of the President delegate its functions, which it delegated here to the Board of FAAN; and that appointments into the public service of the Federation are made on the authority of the Federal Civil Service Commission. The claimant then submitted that delegation of a statutory power is one that requires proof by the provision of evidence of instrument of the delegation of the power clearly indicating the source of the authority to delegate and the fact of the delegation to the named person or organisation exercising the power. That the defendants have not provided any evidence of such delegation by the Federal Civil Service Commission to the defendants; and so all are left with the bare assertion of the counsel in the written address. The claimant then reiterated that counsel cannot substitute address for evidence. The claimant urged the Court to hold that the submission of the defendants is misconceived and totally irrelevant in the consideration of the issues for determination in this suit. That the provision of section 10(1) of the FAAN Act is clear and unambiguous. By the rules of statutory interpretation, Courts are enjoined to give statutory provisions their plain and ordinary meaning except in situation where such interpretation will lead to absurdity, referring to Nyame v. FRN [2010] 7 NWLR (Pt. 1193) 344. That the defendants have not indicated to the Court the absurdity in section 10(1) of the FAAN Act Cap. F5 LFN 2004 which will necessitate the Court going on a voyage of discovery to other statutes to determine the intention of the legislature in this instance. It is the further submission of the claimant that he was not employed by the Federal Civil Service Commission but by Federal Airports of Nigeria (FAAN) as contained in Exhibit MBA1. Furthermore, that Exhibit MBA4 is the conditions of service which governs the employment of the claimant and the defendants have failed to show to the Court compliance with the conditions of service in the removal of the claimant or how the claimant employment is one subject to regulation by the Federal Civil Service Commission. The claimant continued that contrary to the submissions in paragraphs 5.2 to 5.6 to the effect that the appointment of the claimant was lawfully terminated, the claimant’s appointment is one with statutory flavour and he can only be removed in accordance with the conditions of service pursuant to which he was employed. That he was not employed by the 1st and 2nd defendants but by the Federal Airports Authority of Nigeria (FAAN) which is a statutory organisation established pursuant to Federal Airports Authority of Nigeria Act Cap F5 LFN 2004. The defendant had cited Lana v. University of Ibadan [1987] 4 NWLR (Pt. 50) 245, the correct citation of which to the claimant is [1987] 4 NWLR (Pt. 64) 245. Furthermore in the said case, that the Court of Appeal held that the appellant did not resign in accordance with the terms and conditions of his employment with the respondent hence the respondent was right to have rejected the resignation. That it was never part of the decision of the Court that an employee cannot challenge the termination of his employment on the ground that it is unlawful and not in compliance with the conditions of employment of the aggrieved party. That Chukwuma v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 cited by the defendant supports the position of the claimant that an employee appointment can only be terminated in accordance with the terms and conditions of service of the employment and not outside it. That the Court per Ogundare, JSC at 537 para F – H further stated in respect to employees whose appointment is one clothed with statutory flavour thus: The general law is that the court will not grant specific performance of a contract of service...Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court. There is a long line of cases in support of this proposition of law: Olaniyan & ors v. University of Lagos [1985] 2 NWLR (Pt. 9) 559; Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40...Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. Equally so where a special legal status such as a tenure of public office is attached to the contract of employment. It is the submission of the claimant, therefore, that his appointment is a tenured one and clothed with statutory flavour as disclosed in Exhibits MBA1 (letter of Appointment) and paragraph 1.6.2 of Exhibit MBA4 (Conditions of Service) and so the Court can properly order reinstatement if the Court finds that the removal is ultra vires the powers of the defendants as claimed by the claimant. In Conclusion, the claimant urged the Court to uphold his case and grant the reliefs claimed. I heard learned counsel and considered all the processes filed by the parties in this suit. In considering the merit of the case, I need to point out that the defendants in paragraph 6.0 of their written address referred to Rockonoh Property Co. Ltd v. Nigeria Telecommunications Plc & anor SC.71/1995 the judgment of which delivered on Friday 13th July 2001 but did not deem it fit to submit the certified true copy contrary to Order 20 Rule 3 of the National Industrial Court (NIC) Rules 2007, which enjoins that “where any unreported judgment is relied upon the Certified True Copy shall be submitted along the written address”. That said, the claimant by this suit is complaining that his ‘disengagement’ by the defendants is “unconstitutional, unlawful, null, void and of no effect whatsoever” and so prays for a declaration that he “continues to be in the public service, and in particular, in the office of General Manager (Legal) of the Federal Airports Authority of Nigeria”. Aside from the claim for One Billion Naira as damages, the claimant did not indicate any claim for any consequential order; not even an order that he be reinstated to the said office he seeks a declaration in respect of. By Omidiora v. Federal Civil Service Commission [2007] 14 NWLR (Pt. 1053) 17, ‘disengagement’ connotes laying off, withdrawal, retrenchment or other like exercise as opposed to dismissal. In complaining about his disengagement, the claimant is effectively complaining about his being laid-off or retrenched. Now the Courts have cautioned against the use of originating summons where facts are likely to be disputed and so require proof. In NEPA v. Ugbaja [1998] 5 NWLR (Pt. 548) 106, for instance, it was held that a case that has to do with unlawful dismissal of an employee should not normally be commenced by an originating summons which only requires the matter to be proved by affidavit evidence. That such an action should be commenced by an ordinary writ of summons so that pleading could be ordered and exchanged and concrete evidence given to establish the claim or defence. Despite this admonition, the claimant chose to come by way of an originating summons; and in so doing delimited his case to just the questions he posed and the declaratory reliefs he seeks. Even regarding the claim for One Billion Naira as general damages, the claimant acknowledged in his written address that it is at large and simply rests on a favourable answer to the questions he posed and the grant of his declaratory reliefs. How he came by the sum of One Billion Naira as damages, the claimant did not show the Court because no facts were pleaded and proved in that regard. Continuing in like manner, nowhere in the affidavit in support of the originating summons did the claimant describe himself as one whose employment is with statutory flavour. Other than describing himself as a public servant in paragraph 2 of the affidavit in support and the statement in paragraph 4 that FAAN is a creation of section 1 of the FAAN Act with a Management Board headed by the Managing Director (MD), nothing is said of the claimant being a statutory employee. In fact in paragraph 4 of the affidavit in support, the claimant indicated that as General Manger (Legal), he is neither a member of the Board nor the MD of FAAN. In paragraph 3 of the affidavit in support, the claimant indicated that his employment “was upon the conditions of service of [FAAN]”. Despite the fact that the claimant did not describe himself as a statutory employee, he, however, submitted in paragraphs 2.9 and 2.11 of his reply on points of law that his appointment is a tenured one and clothed with statutory flavor (as disclosed in Exhibit MBA1 and paragraph 1.6.2 of Exhibit MBA4) and he can only be removed in accordance with the conditions of service pursuant to which he was employed; failing which the Court can properly order his reinstatement if the Court finds that his removal was ultra vires the powers of the defendants as he claims. Now, nowhere in Exhibit MBA1 is it stated that the claimant’s appointment is statutory or made pursuant to a statutory provision; neither is it stated that it is tenured. Instead, all that Exhibit MBA1 states is that his appointment “will be on probation for two years or for such long period as may be deemed advisable”. And paragraph 1.6.2 of Exhibit MBA4, the conditions of service, simply states that “The Authority” means the Federal Airport Authority of Nigeria as incorporated and constituted by the Federal Government of Nigeria under Act No. 9 of 1996 as contained in Cap. F5 LFN 2004 and any subsequent amendment(s) thereto. Do these provisions (of Exhibits MBA1 and MBA4) indicate that the claimant’s appointment is a tenured one and clothed with statutory flavor? This of course raises a key question as to the employment status of the claimant for resolution by this Court i.e. whether the claimant’s employment is one with statutory flavour or not. As I indicated earlier, it must be noted that nowhere in the affidavit in support or even the written address in support of the originating summons did the claimant describe himself as one whose employment is one with statutory flavour. It was only in the reply on points of law that he described himself as such in the manner I indicated earlier. What this means is that by so doing, the claimant effectively denied the defendants the opportunity to contest that point and address the Court on it. For this reason alone, the claimant is out of line to spring that surprise on the defendants and so the question whether his employment is statutory is a non-issue as far as this case is concerned; and I so find and hold. Assuming, however, that it is an issue, the question remains whether he has been able to show to this Court that he is a statutory employee; for it is on that basis that he prayed for the declaration that he “is and continues to be in the public service, and in particular, in the office of General Manager (Legal) of the Federal Airports Authority of Nigeria”. Here, I must point out that in paragraph 4.1.5 of his written address, the claimant submitted that as General Manager, he “was just any other member of staff which section 10(1) of the [FAAN] Act authorised the [FAAN] to employ subject to its own conditions of service for the staff”. In describing himself as just any other member of staff, can the claimant be said to be a statutory employee? This remains the question. A number of case law authorities have made pronouncements and hence indicated the yardsticks to be considered in determining whether an employment is one with statutory flavour. The authorities are all agreed on the following: the fact that an employer is the creation of statute does not elevate its employees to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be predicated for the employment to have statutory flavor; where the contract is determinable by the agreement of the parties simpliciter there is no question of the contract having statutory flavor; the fact that the other contracting party is the creation of a statute does not make any difference. See, for instance, Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47. The case of FMC, Ido-Ekiti v. Olajide [2011] 11 NWLR (Pt. 1258) 256 CA proceeded to add that for an employment to enjoy the status of statutory flavour, the manner of employment and termination must be specifically provided for in the statute creating the employment. That it is not every appointment in a Federal government agency that is clothed with statutory flavour. The fact that the Federal Government agency is a statutory body does not automatically mean that the conditions of service of its employees must be of special character ruling out the relationship of mere master and servant. It is only when the employment is protected by statute which makes the provisions for the procedure for employment and termination of such employment that it can be said that the employment is clothed with statutory flavour. In fact Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also Jirgbagh v. UBN Plc [2001] 2 NWLR (Pt. 696) 11 CA, NEPA v. Adesaaj [2002] 17 NWLR (Pt. 797) 578 CA and Iloabachie v. Plilips [2002] 14 NWLR (Pt. 787) 264 CA. The more recent Supreme Court decision in PHCN v. Offoelo [2013] 16 WRN 28 is quite emphatic that the mere fact that an employer is a creation of statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment into one of statutory flavour. Rather, there must be a nexus between its employee’s appointment with the statute creating the employer or corporation. To illustrate the kind of nexus required before an employment is branded statutory, in PHCN v. Offoelo, the Supreme Court found that a finding of the trial court which was not disputed is that the respondent was employed by the appellant since 1966 and that the conditions of his contract of employment are contained in the “Conditions of Service of Employees of National Electric Power Authority” tendered as Exhibit A. The Court held that section 4 and paragraph 9 of the Schedule to the NEPA Act are the connection and authority, which empowers the appellant to make Exhibit A (conditions of the employment of the appellant’s staff). As such Exhibit A has the force of law as NEPA Act, which established the appellant and the appointment of staff made therein consequently attracts statutory flavour. In this case, the Supreme Court was quite emphatic that in retiring the respondent with “immediate effect” the conditions of service was not complied with since there is no provision in the conditions of service sanctioning retirement with “immediate effect” or for payment of entitlements in lieu of notice. That all the conditions of service required is that all established employees shall be put on three months’ notice before the retirement takes effect. The Supreme Court then agreed with the trial Court that the appellant did not follow these provisions of the conditions of service in terminating the appointment of the respondent. It must be stressed, however, that the Supreme Court arrived at this conclusion having first held the employment of the respondent to be statutory; for only in that regard is the duty on the appellant to follow strictly the applicable conditions of service. By Idoniboye-Obu v. NNPC [2003] NWLR (Pt. 805) 589, conditions of service which will give statutory flavour to a contract of service cannot be a matter of inference. They must be conditions which are expressly set out by statute. That the rules and regulations, which are claimed by an employee to be part of the terms of his employment capable of giving it statutory flavour and be of protection to the employee, must – a) have statutory reinforcement or at any rate be regarded as mandatory; b) be directly applicable to the employee or persons of his cadre; c) be seen to be intended for the protection of that employment; and d) have been breached in the course of determining the employment before they can be relied on to challenge the validity of that determination. See also Ogieva v. Igbinedion [2004] 14 NWLR (Pt. 894) 467 CA. Azenabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96 CA additionally held that all the above factors must be in existence before they can be relied on to challenge the validity of the determination. More specifically, Ujam v. IMT [2007] 2 NWLR (Pt. 1089) 470 CA held that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or by a section(s) of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section(s) of the statute must clearly and unequivocally govern or regulate the employee and must be unmistakably clear in the provisions as to delegated legislation. That the regulations and/or the conditions of service must be implicitly borne out from the section(s) delegating or donating the authority. In other words, there must be clear nexus between the delegating section(s) and the regulation or conditions of service conveying a legal instrument or document which is of similar content. In such a situation, the regulations or conditions of service must commence with the provision of the enabling statute. Given these case law authorities, can it be said that that the claimant has shown to this Court that his employment is one with statutory flavour? The claimant had relied on section 10(1) of the FAAN Act in submitting that it is. Here I acknowledge that Olufeagba v. Abdul-Raheem [2009] 18 NWLR (Pt. 1173) 384 SC held that statutory provisions establishing a corporate body always empower the body to employ staff and discipline them; and that once the statutory provisions are clear as to how to deal with an erring servant, they must be adhered to strictly including a clear observation of the principles of fair hearing. Section 10 of the FAAN Act Cap. F5 LFN 2004 deals with staff generally and provides in subsection (1) that “subject to this Act, the Authority may appoint such other persons as members of its staff as it considers necessary and may approve conditions of service for the staff”. Note that this section talks of approval of the conditions of service, not say making it. Exhibit MBA4, the Staff Conditions of Service, is dated 1st July 2011. It has in the “Special Note” the following statement – The provisions of these Conditions of Service are subject to periodic review by Management and Employees’ Unions Representatives. All circulars, orders and other documents giving further details and/or explanation to the provisions of these Conditions of Service, shall be negotiated and thereafter form part of them, provided that they are not less favourable than these Conditions of Service. And in clause 1.4(i), it provides that “any amendment to these Rules and Regulations shall be undertaken after due negotiation between the Management and the Unions and ratification by the Head of Civil Service of the Federation and such amendments shall be incorporated in the Conditions of Service”. Now, nowhere in Exhibit MBA4 will it found that the conditions of service were made pursuant to any section of the FAAN Act as to make it come within the Ujam v. IMT criterion, which enjoins that the regulations or conditions of service must commence with the provision of the enabling statute if it is to be read as a product of delegated or donated authority. In other words, there is no nexus between Exhibit MBA4 and section 10(1) of the FAAN Act as demanded by PHCN v. Offoelo (supra). In fact there is nothing indicating to the Court that the Authority (FAAN) approved Exhibit MBA4 as to bring into play section 10(1) of the FAAN Act. All that we have is the last sheet of paper indicating “Committee Members” with Mr. Adeniyi Ajakaiye, Director of Administration, as Chairman and Mrs. A. A. Isola, Asst. Chief Admin Officer (Industrial Relations), as Secretary. Membership of the committee is then supposedly drawn from management staffers of FAAN, and members of the trade unions, ATSSSAN and NUATE. The curious thing is that there is no nexus between this sheet of paper with the main conditions of service; while the pages of the conditions of service are numbered and stop at page 121, the sheet of paper is not so numbered. For all the reasons and authorities cited, it is difficult to see how the claimant branded himself as a statutory employee in the manner he did. It is my finding and holding, therefore, that the claimant has not shown to this Court how his employment is one with statutory flavour. The defendants similarly found themselves in the same kind of trap that befell the claimant. Without an appropriate pleading and accompanying evidence, the defendants proceeded in their written address to argue their case based on facts that were not pleaded and proved. I agree with the claimant that the submissions of the defendants to the effect that the disengagement of the claimant was by the Interim Board of FAAN is evidence that was not pleaded and hence proved. I dare say it was an afterthought on the part of the defendants. Exhibit MBA5, the letter of disengagement says nothing about the decision to disengage the claimant being a decision of the Interim Board of FAAN. The defendants did not plead that the FAAN Board was not even in existence as to justify the necessity for the Interim Board. The person who signed Exhibit MBA5 is the Permanent Secretary; and she signed for Honouable Minister. There is nothing in Exhibit MBA5 that says that it was being issued by or for and on behalf of an Interim Board as the defendants would want this Court to believe. Further still, the defendants relied on the Public Service Rules to justify their submissions. By Nigeria Airways Ltd v. Okutubo [2002] 15 NWLR (Pt. 790) 376, the Federal Civil Service Rules can only become relevant in the consideration of a contract of employment where it was expressly or by necessary implication contemplated in the letter of employment. The defendants did not show to this Court how the Public Service Rules became applicable to the contract of employment of the claimant. The law in Nigeria is that while an employer is not enjoined to, where, however, the employer chooses to give a reason for terminating the employment of an employee, it lies on that employer to justify the reason if challenged. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 532 CA and Afribank (Nig.) Plc v. Osisanya [2000]1 NWLR (Pt. 642) 592 CA. By Exhibit MBA5, the President of the country approved the disengagement of the claimant “in line with Government’s Transformation Agenda and the reform of the Aviation Sector”. From this, two reasons were given for the disengagement of the claimant: Government’s Transformation Agenda and the reform of the Aviation Sector. For giving these reasons, it is the duty of the defendants to justify them. Did the defendants succeed in doing this? This remains the question. In paragraph 4(f) of the 2nd defendant’s counter-affidavit of 6th January 2012, the 2nd defendant deposed that “the reformation taking place in the Aviation Authority does not affect the plaintiff alone but so many staff”. This is the closest to proving the reasons for disengaging the claimant that the defendants came to. Other than this, the defendants proceeded to rely on Rule 020806(iii) of the Public Service Rules, which provides that “an officer whose service is no longer required in the event of abolition of office, re-organization of the office or redundancy shall be required to leave the service”; and then submitted that in the instant case the services of the claimant are no longer required for reasons of re-organization of the office and it behoves on him to leave, peacefully. I note here that in Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor unreported Suit No. NICN/LA/426/2012 the judgment of which was delivered on January 21, 2014, this Court, relying on Rules 160103 and 160401 of the Public Service Rules (2008 Edition) of 25th August 2009, held the provisions dealing with leaving of service under the Public Service Rules to apply to parastatals. A parastatal is defined by Rule 160101 of the Public Service Rules as a government-owned organisation established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of Government. Rule 160102 then classifies parastatals into four categories: Regulatory Agencies; General Services; Infrastructure/Utility Agencies; and Security Agencies. Given the creation of FAAN under the FAAN Act, FAAN falls within this definition of parastatal and would conveniently come under the general services categorisation given its functions under section 3 of the FAAN Act. In this wise, on the authority of Rule 160401(a) and (b) of the Public Service Rules, which provides that “the provision of Section 8 in Chapter 2 of the Public Service Rules on leaving the service shall apply to all Parastatals, as contained in each Parastatal’s conditions of service” and that “all such Conditions of Service for Parastatals shall be approved by their respective Boards and ratified by the Head of Civil Service of the Federation”, the said provision of section 8 in Chapter 2 would automatically apply to FAAN. For present purposes, the relevant rule under Section 8 of Chapter 2 of the Public Service Rules is Rule 020806(ii) cited by the defendants, which provides that “an Officer whose service is no longer required in the event of abolition of office, re-organisation of the office or redundancy shall be required to leave the service”. The question, therefore, is whether the defendants actually made out a case for the application of this rule in terms of the justification for disengaging the claimant from his employment. In Esther Ogbodu v. Global Fleet Oil & Gas Ltd and anor unreported Suit No. NICN/LA/32/2012 the judgment of which was delivered on December 5, 2014, re-organisation was given as one of the reasons for terminating the employee’s employment. This is what this Court held – The second reason given by the defendants is “the on-going restructuring in the Organisation”. An employer has the right to restructure/re-orgainse but it must be for verifiable reasons, which in the instant case is lacking as the defendants have not justified or shown to the Court the fact of the re-orgainsation. Throughout the submissions of counsel to the defendants, I did not read anywhere where he stated what the nature of the re-organisation was. One (like counsel to the defendants did) cannot just blindly use the word re-organise as justification without stating what it entails and its component parts. The defendants appeared to have simply found the word convenient to use and so that to them was sufficient justification. To be such, the defendants must prove the need for the re-organisation, its component part and how they succeeded in doing that in regards to the case at hand. The claimant was Business Development Manager and Head Legal Department. In terminating her employment, was the office scrapped in order to justify the re-orgainsation? The Court was not told. I find it difficult, therefore, to accept as plausible the reason of re-organisation given by the defendants as the basis for terminating the employment of the claimant. In all, I accordingly find and hold that the reasons given by the defendants for terminating the employment of the claimant are not plausible and so the termination of her employment with immediate effect was wrongful. In like manner, in the instant case, throughout the submissions of the defendants, I did not read anywhere where it was stated what the nature of the re-organisation was other than that it is in line with the Transformation Agenda of Government and the reform of the Aviation Sector. I repeat once again, one cannot just blindly use the word reform or re-organisation as justification without stating what it entails and its component parts. The defendants appeared to have simply found the word convenient to use and so that to them is sufficient justification. To be such, the defendants must prove the need for the reform or re-organisation, its component part and how they succeeded in doing that in regards to the case at hand. The claimant in the instant case was General Manager (Legal Services). In disengaging him from his employment, was the office he occupied scrapped in order to justify the re-orgainsation? The defendants did not tell the Court. If anything, Exhibit MBA5 in paragraph 2 had even asked the claimant to hand over the affairs of his unit to the Deputy General Manager (Legal) presupposing thereby that the office of General Manager (Legal) was still intact. All of this means that the defendants have not succeeded in justifying the reasons for which the claimant was disengaged; and I so find and hold. The claimant had asked the Court to determine whether or not the powers conferred on the 1st defendant under section 171 of the 1999 Constitution (as amended) to appoint and remove persons from public service extends to plaintiff’s office of General Manager (Legal) of the Federal Airports Authority of Nigeria. Section 171 of the 1999 Constitution deals with “Presidential appointments”, the relevant portions of which, subsections (1) and (2), the claimant reproduced in his written address. In framing this question, the claimant implies that the removal of persons from public service by the President of the Country relates to only the offices listed in section 171. The thing about section 171 is that it simply states that the power to appoint persons to hold or act in the offices to which the section applies and to remove such persons lies with the President. It does not state that thereby the said offices are the only ones so affected. In other words, section 171 cannot be used as justification (as the claimant seems to argue) for the assertion that public servants can be removed by the President of the Country only if they are those listed in section 171. Here, I must state that the duty placed on the claimant by case law authority is not just to state who cannot disengage him but to also place before the Court who can disengage him. See Emokpae v. University of Benin [2002] 17 NWLR (Pt. 795) 139 CA. While the claimant argued the defendants cannot disengage him, he failed in placing before the Court who then can disengage him from his employment. In answer to the first question posed by the claimant, I will state that in as much as the claimant’s office of General Manager (Legal) of FAAN is not one of the offices listed under section 171 of the 1999 Constitution, as amended, it cannot thereby be conclusive that the powers of the 1st defendant to appoint and remove public officers (without more) are limited to only the offices named in section 171. Yes, section 171 deals with only the offices listed therein, but that does not imply that thereby only occupants of those offices can be appointed and removed by the 1st defendant. In any event, Exhibit MBA5 did not even state that the defendants acted pursuant to section 171 of the Constitution. So for the claimant to specifically ask the Court to answer the question whether or not the powers conferred on the 1st defendant under section 171 of the Constitution extends to the office of the claimant is more like generating an issue where there is none and asking the Court to resolve it. The claimant’s appointment was not made pursuant to section 171, nor was it brought to an end under the said section. No one (the defendants inclusive) purported to act pursuant to section 171; and so I do not really see the relevance of having to declare that the 1st defendant’s power under section 171 does not extend to the claimant’s office. Once again, if the claimant’s case is that he was wrongly or illegally removed from office, the claimant could easily have filed the necessary complaint, pleadings and supporting documents, proved same and then urge the Court to reinstate him to his office. The claimant, however, chose the shortcut process of having to come by way of originating summons. In answer to question 1, I would reluctantly say (as I do not actually see what use it serves in the instant case) that the powers conferred on the 1st defendant under section 171 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to appoint and remove persons from public service relates only to the offices listed therein. Since the claimant’s office is not listed therein, it naturally follows that the claimant’s office is not contemplated for purposes of section 171. This, however, does not in any way signify that thereby the disengagement of the claimant from his employment is unconstitutional, unlawful, null, void and of no effect whatsoever as the claimant prays; for section 171 is not all embracing as to the manner a person in the public service can be disengaged. For instance, I indicated earlier the applicability of Rule 020806(ii) of the Public Service Rules to employees of FAAN (the claimant inclusive). I indicated earlier that the reliance placed by the defendants on Rule 020806(ii) of the Public Service Rules has not been successfully justified. Can any justification for the defendant’s act be found in Exhibit MBA4? It is to this I now turn. By clause 4.3.1 of Exhibit MBA4, if the Board/Managing Director of FAAN considers that it is desirable in the interest of FAAN that an employee should be required to retire from the service of FAAN on any ground, a full report shall be made. The employee shall, however, be given an opportunity of submitting a reply to the complaint by reason of which his retirement is contemplated. It is after this that if it is still found desirable that the employee should be retired, then the employee shall be retired on such date as FAAN shall specify. Aside from this provision, clause 4.3.4 provides for withdrawal from service to the effect that when an employee who served for five years but less than ten years leaves the service in circumstances entitling him to payment of gratuity, he is deemed to have withdrawn from the service; here one month’s notice or one month’s pay in lieu of notice is required. In the instant case, none of the requirements of these provisions was adhered to when the claimant was disengaged vide Exhibit MBA5. To this extent, the disengagement from service of the claimant is wrongful for the following reasons: first is the non-observance of the provisions of Exhibit MBA4; secondly is the fact that the reasons given for the disengagement were not justified by the defendants; and thirdly, the signatory of Exhibit MBA5 (the disengagement letter) has not been shown to be the Board or Managing Director of FAAN, the employer of the claimant. In this sense, the answer to the second question posed by the claimant is that the claimant cannot be disengaged from his service position except for the reasons and in accordance with the procedure stipulated in his conditions of service as a staff of the Federal Airports Authority of Nigeria. By Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378 SC, a public servant can only be validly removed from service if the procedure prescribed by law was followed. However, since I held that the claimant has not succeeded in establishing that he is a statutory employee in order to justify the declaratory relief of reinstatement he prays for, and Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 592 CA held that the termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant, I have no option but to come to the conclusion that despite the fact that the disengagement from service of the claimant is wrongful, his employment nevertheless comes to an end (wrongly though). There is an isolated authority, Beredugo v. College of Science & Technology [1991] 4 NWLR (Pt. 187) 651 CA, to the effect that once wrongful termination of appointment by the employer is established, then damages which is the amount the employee would have earned had his employment run up to retirement age will follow. In Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor, this Court held that Rule 020810(iv) of the Public Service Rules applies to parastatals of which FAAN is one. The general rule as to retirement under Rule 020810 is that in the public service, one must retire at age 60 or if one spent 35 years of pensionable service, whichever is earlier. However, Rule 020810(iv) provides an exception regarding Directors and Permanent Secretaries in that a Director shall compulsorily retire upon serving eight years on the post; and a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance, and no more. Now in the instant case, Exhibits MBA1 (the offer of employment) and MBA2 (the letter of posting) indicate that the claimant was employed and posted as General Manager (Legal) on Salary Grade level 17/1, the Salary Grade Level of a Director in the public service strictly speaking. Since I held that the disengagement of the claimant was wrongful, and since Beredugo v. College of Science & Technology held that once wrongful termination of appointment by the employer is established, then damages which is the amount the employee would have earned had his employment run up to retirement age will follow, the claimant could not have held office as General Manager (Legal) on Grade Level 17 (Director’s Grade/Post) beyond 8 years given Rule 020810(iv)(a) of the Public Service Rules. The claimant was offered employment vide Exhibit MBA1, which in the last paragraph indicated that he should signify acceptance of the offer within five weeks. There is no evidence of when the claimant accepted the offer; but Exhibit MBA2 dated 30th April 2007 posted him as General Manager (Legal) on Grade Level 17 with immediate effect. I take it, therefore, that 30th April 2007 is the date the claimant’s employment as a Grade Level 17 officer commenced; and I so find and hold. Eight years on the post as General Manager (Legal) would expire on 29th April 2015. Exhibit MBA5, which disengaged the claimant is dated 4th October 2011; it disengaged the claimant with immediate effect, meaning with effect from 4th October 2011. So if the claimant was disengaged on 4th October 2011 and his 8 years on the post would have expired on 29th April 2015, on the authority of Beredugo v. College of Science & Technology, the claimant is entitled to his salary for the period 4th October 2011 to 29th April 2015, when he would have validly retired from service having spent 8 years on the post. The claimant did not disclose to the Court what his salary is. Ordinarily, on the authority of the Supreme Court decision in University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478, the claimant would be entitled to no relief whatsoever. However, in the more recent Supreme Court decision of Hon. Chigozie Eze & 147 ors v. Governor of Abia State & 2 ors unreported Suit No. SC.209/2010 the judgment of which was delivered on 11th July 2014 (Hon. Justice Rhodes-Vivour, JSC delivering the lead judgment), even “in the absence of the fact that no evidence was led to establish the sums due to the appellants as salaries and allowances” and for which “no specific sum can be ordered by this Court”, the Supreme Court held that as all Courts are courts of Law and Equity, equity demands that the executive should not be allowed to get away with a wrongful act. The Supreme Court then went on that since unpaid salaries are necessary and incidental as a result of wrongful termination, it was appropriate to order that the appellants be so paid their salaries and allowances for the period that they were out of office. The Supreme Court accordingly ordered that the appellants be paid immediately all their salaries and allowances for 23 months; and this was so despite the fact that there was no evidence led as to the salaries and allowances of the appellants, and for which the two varying sums claimed were deemed suspect by the Supreme Court. On the authority of Hon. Chigozie Eze & 147 ors v. Governor of Abia State & 2 ors, therefore, it is my order that the claimant is entitled to be paid his salary and allowances for the period 4th October 2011 to 29th April 2015. The additional justification for this order is that the scenario in the instant case as it relates to the claimant approximates to an employee with a fixed term. In the first place, the claimant by Exhibit MBA3 was confirmed with effect from 9th May 2009. As a confirmed staff, the claimant is entitled to continue in employment till his retirement age, which by Rule 020810(iv)(a) of the Public Service Rules is after serving 8 years on the post. In this regard, College of Education, Ekiadolor v. Osayande [2010] 6 NWLR (Pt. 1191) 423 and Shena Security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (Pt. 1118) 77 held that where the contract of an employment is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the period of his fixed term. Having thus ordered that the claimant is entitled to be paid his salary and allowances for the period 4th October 2011 to 29th April 2015, when he is due to retire given the 8-year tenure rule, the claim for damages is not sustainable as to grant that would amount to double compensation, a windfall to say the least. In any event, it does not look like damages and reinstatement go together. See CCB (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 CA, which held that the Court will not make an order of reinstatement of an employee to his employment after it awarded damages to an employee for his unlawful dismissal from his employment because it would amount to double compensation to the employee. For the avoidance of doubt, and for the reasons given, I find and hold as follows – 1. The claimant did not succeed in proving to the Court that he is a statutory employee. 2. Section 171 of the 1999 Constitution, as amended, is irrelevant in the determination of whether the defendants have the power to disengage the claimant from the service of FAAN. 3. The disengagement of the claimant from the service of FAAN was wrongful for the following reasons: non-observance of the provisions of Exhibit MBA4; the reasons given by the defendants for the disengagement were not justified; and the signatory of Exhibit MBA5 (the disengagement letter) has not been shown to be the Board or Managing Director of FAAN, the employer of the claimant. 4. Though the disengagement of the claimant by the defendants was wrongful, the claimant’s employment nevertheless comes to an end. 5. The claimant as General Manager (Legal) on Grade Level 17 is equivalent to a Director and so is caught up by the 8-year tenure under Rule 020810(iv)(a) of the Public Service Rules and so must retire after serving 8 years on the post of General Manager (Legal). 6. For the wrongful disengagement of the claimant from the service of FAAN, the defendants (as well as FAAN itself) are to pay to the claimant within 30 days of this judgment his full salary and allowances for the period 4th October 2011 to 29th April 2015; and I so order. 7. Cost is put at Fifty Thousand Naira (N50,000) only payable by the defendants to the claimant within 30 days of this judgment. 8. Failure to pay the sums as ordered in this judgment shall attract interest at 10% per annum. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD