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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: MARCH 16, 2015 SUIT NO. NICN/LA/464/2013 BETWEEN Mr. Chinweorder Chukwu Awa - Claimant AND Nigeria Social Insurance Trust Fund - Defendant REPRESENTATION E. O. Ibe,, for the claimant. Mrs. Titilola Akinlawon, SAN, and with her are I. O. Ajomo, Albert Imolade, Damola Olawale, Adewale Akinsayan, Miss Rita-Marie Cyprian-Okonkwo and Remi Adebayo Esq., for the defendant. JUDGMENT The claimant by a complaint dated and filed on 29th August 2013 instituted the present suit against the defendant. The complaint was accompanied by statement of facts, list of witnesses, claimant’s written statement on oath, list of documents and copies of the documents to be relied upon. By order of Court granted on 3rd June 2014, these originating processes were amended and further written statement on oath, and additional documents filed. From the complaint and amended statement of facts, the claimant is seeking the following reliefs – 1. An order reinstating the claimant into the service of the defendant to serve the remaining part of his tenure that will expire on the 22nd day of February 2015 and to pay him the salaries, necessary entitlements and benefits due to the claimant or in the alternative pay the claimant the sum of N18,000,00.00 (Eighteen Million Naira Only) which is the sum total of his salaries, benefits and entitlements due to the claimant when he is to retire in (sic) 22nd day of February, 2015. 2. An order for general damages to the tune of N100,000,000.00 (One Hundred Million Naira), in favour of the claimant against the defendant as a result of the sufferings meted out to the claimant, loss of earnings, psychological trauma and disgrace suffered by the claimant due to the actions of the defendant. The claimant indicated the particulars for general damage as follows – I have suffered terribly in the hands of the defendant. I am finding life so difficult since I cannot take care of myself and my family. My health has broken down and had been treated in different hospitals due to my compulsory retirement by the defendant and the psychological trauma attached therein. All the above calculated together worth more than the amount claimed as general damages. The defendant entered appearance by filing its memorandum of appearance; and then filed its statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents. But given the amendment of the originating processes by the claimant, the defendant too consequentially filed an amended statement of defence. At the trial, the claimant testified in his own behalf as CW, while Abraham Onoriode Emagun, Senior Manager (Personnel) with the defendant testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated and filed on 19th November 2014, while that of the claimant is dated and filed on 27th January 2015. The defendant’s reply on points of law is dated and filed on 29th January 2015. SUMMARY OF THE CLAIMANT’S CASE The case of the claimant is that he is a Computer Scientist by profession. He filed this suit to protest the illegal termination of his appointment by the defendant on 30th May 2013, and to ask for the necessary damages. The claimant is protesting against his illegal termination of appointment by the defendant for the following reasons. In the first place the claimant stated that he was born on 22nd February 1955 in Aba, Aba South Local Government Area of Abia State, Nigeria. He is a native of Igbere, Abia State, Nigeria. The claimant in support frontloaded his Declaration of Age dated 12th February 1973 (Exhibit C1), declared by his father. The claimant was employed by the defendant as Deputy General Manager, Information Technology, on September 29, 1999 and was later promoted to General Manager in April 20, 2011 with actual effect from April 1, 2011. This letter of promotion is Exhibit C3. The claimant continued that he was compulsorily retired by the defendant on 30th May 2013 with immediate effect on account of having served the defendant as a Director for 10 years, 8 months, 1 day, which the claimant considers wrong and inapplicable. The letter of compulsory retirement is Exhibit C4. To the claimant, he had not gotten to the age of 60 years or had served the defendant up to 35 years as required by the Civil Service Rules. The Circular Reference Nos. HCSF/061/S.1/111/68 of 26th August 2009, HCSF/061/S.1/111/188 of 21st October 2009 and HCSF/061/S.1/111/183 of 29th October 2009, on Tenure of Office for Permanent Secretaries and Directors do not apply to the claimant since he had not served for 10 years 8 months 1 day i.e. from 27th September 2002 to 30th May 2013, as stipulated by the defendant. It has to be noted that the above Circulars were not part of the claimant’s letter of appointment as contained in Exhibit C8 that was given to the claimant. Exhibit C4 was not based on the content of the letter of appointment of the claimant (Exhibit C8). To the claimant, it has to be noted that he did not enjoy the benefits that were accrued to the post of a General Manager from 27th September 2002; the said promotion to General Manager was backdated without corresponding remunerations which existed. That the above alleged promotion of the claimant was targeted to retire him prematurely and in bad faith. The notional effect of the above promotion started from 27th September 2002, and financial effect from 1st April 2011, relying on Exhibit C3. In consideration of the facts above, that he was wrongfully and prematurely retired from the services of the defendant contrary to the provisions of the 1999 Constitution and other relevant laws governing International Labour Organization (ILO) with principles of fair hearing, justice and equity. The claimant went on that his retirement did not take cognizance of Exhibits C1, C8, C12, C13, C14, C15, C15A and C16. Based on the above Exhibits, that his retirement vide Exhibit C4 by the defendant is illegal. To the claimant, his tenure of service will come to an end on 22nd February 2015 when he will clock 60 years of age. That the statutory required age of retirement for him was not exhausted before his appointment was terminated, relying on Exhibits C1, C2, C3, C4, and the claimant’s pleadings. SUMMARY OF THE DEFENDANT’S CASE To the defendant, the claimant by Exhibit C1 made known that he was born on 22nd February 1955. He was employed by the defendant by a letter dated 20th August 1999 as DGM (Information Tech) – Exhibit C8. By a letter dated 30th April 2011 (Exhibit C3) the claimant was promoted to the position of General Manager with notional effect from 27th September 2002 and financial effect from 1st April 2011. In compliance with Exhibits D4(a) and (b) – circulars from the Head of Civil Service of the Federation – the claimant was compulsorily retired by Exhibit C4 dated 30th May 2013. The claimant protested his retirement by sending a letter dated 7th June 2013, which is Exhibit C5, while the defendant’s reply thereto is dated 12th June 2013 and marked Exhibit C6. Under cross-examination, the claimant claimed to be a Civil Servant, but by his letter of employment his contract was governed by the rules and regulations issued by the Board of Directors of the defendant. He identified Exhibit D1 as the said Rules and Regulations. He also agreed that clause 5.02 of Exhibit D1 (page 13) stipulates that the defendant can determine his employment by one month’s salary in lieu of notice. The defendant continued that its witness, DW, affirmed that the claimant’s promotion was regular and done in the normal course of operations. DW also affirmed that the claimant’s retirement was not premature, in bad faith or even unconstitutional or in breach of the principles of fair hearing and that the defendant is not liable in damages to the claimant. That the terms and conditions of the claimant’s employment (Exhibit D1) made under the statutory power of the defendant’s Board makes provision for termination of the employment of a confirmed member of staff like the claimant by one month’s notice or payment of one month’s salary in lieu of notice. That the Board of the defendant adopted the circulars of the Head of Civil Service admitted as Exhibits D4(a), (b) and (c) by Exhibit D2. By Exhibit D3 the Board delegated its power to the Managing Director to retire the claimant in accordance with the circulars adopted in Exhibit D2. That apart from informing the Court that he had been in the service of the defendant for a period in excess of 17 years having been employed in 1997, no other relevant question was asked DW under cross-examination. DEFENDANT’S SUBMISSIONS The defendant framed two issues for the determination of the Court, namely – 1. Were the circulars emanating from the Head of Civil Service id est Exhibits D4(a), (b) and (c) applicable to the claimant and to what effect? 2. If the said circulars were not applicable to the claimant, what relief is available to him? Regarding issue 1, the defendant submitted that by the provisions of section 9(3) of the Nigeria Social Insurance Fund (NSITF) Act, the defendant may employ any number of staff. Subsection 4 of section 9 provides that the terms and conditions of such employees “shall be as determined by the Board from time to time”. Section 9(5) then provides – The control of the employees (including their promotion and discipline) shall vest in the Board and may be delegated by the Board to the Managing Director or any of the Executive Directors subject to such conditions as the Board may specify. To the defendant, the purport of the above stated provisions is that the employment of the claimant is governed by the rules and regulations (Exhibit D1) made by the Board of the defendant pursuant to the above stated sections of the NSITF Act. That the Board of the defendant by Exhibit D2 approved and adopted the circulars of the Head of Civil Service i.e. Exhibits D4(a), (b) and (c) and implemented same as they related to the claimant’s employment with the defendant. That had the Board not approved and adopted the circulars, they (or any other circulars not approved by the Board) would have been inapplicable to the claimant given that there appears to be no legal authority for the Civil Service Commission or Head of Civil Service to make rules for employees of Statutory Corporations/Parastatals. Specifically, the defendant invoked Exhibit D4(a) against the claimant, the relevant portion of which reads as follows – TENURE OF OFFICE FOR PERMANENT SECRETARIES AND DIRECTORS In the case of Directors they shall compulsorily retire upon serving eight years on the post… The defendant went on that the claimant’s contention is that he did not serve 8 years on the post as a General Manager (equivalent of Director in the Civil Service) because his promotion was notional from 27th September 2002 and with financial effect from 1st April 2011, hence those circulars did not apply to him. In other words, he is requesting the Court to construe his tenure as a Director as commencing from 1st April 2011. That to put to rest any misgivings as to the intendment of the circulars from the Head of Civil Service, Exhibit D4(c) was issued, establishing beyond question that the eight year service limit applied to all Directors who would have spent eight years on the post notional or actual. That it is important to note that the main plank of the defendant’s argument on the applicability of the circulars of the Head of the Civil Service to the claimant’s employment is that the defendant Board by virtue of the Act creating it adopted them by reference into its rules and regulations governing employment. See Exhibit D2. The real question then is what made the circulars from the Head of Civil Service applicable to the defendant and its employees. That the circulars apply because the defendant Board adopted them by Exhibit D2 as it was empowered to do by its enabling Act. Any circular not expressly adopted by the Board would be wholly inapplicable. As an alternative argument, the defendant submitted that in the unlikely event that the Court rejects its submissions contained in the Appendix namely, that, had the Board not adopted the circulars from the Head of Civil Service, the circulars would have been inapplicable given that there appears to be no legal authority for the Civil Service Commission or the Head of Service to make rules for employees of statutory corporations/parastatals, the circulars would have been applicable by virtue of the Public Service Rules. That it cannot be in doubt that the defendant is a parastatal of the Government of Nigeria. In Chapter 16 Section 1 Rule 160101 of the Public Service Rules 2008 Edition, a parastatal is defined thus – A Parastatal is a government owned organization 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 160201(a) of the said Public Service Rules provides that the Board of a Parastatal shall set operational and administrative policies in accordance with government policy directives and supervise the implementation of such policies, while Rule 160401 imports Rule 020810(iv)(a) into the conditions of service of Parastatals, namely the retirement of Directors who have served 8 years on post. The government policy directives relating to officers of the status of the claimant are Exhibits D4(a), (b) and (c). Exhibit D4(a), paragraph 3 stipulates that all Directors who would have spent 8 years on post by 1st January 2010 (the effective date of the provision) are to retire. Exhibit D4(b) re-emphasized that Exhibit D4(a) applies to all Government Parastatals and Agencies like the defendant. Exhibit D4(b) directed the Board to realign their respective conditions of service with the recently approved tenure policy. In Exhibit D4(c), the Head of the Civil Service of the Federation stipulated that Exhibit D4(a) applies to all Directors who would have spent eight years on post by January 1, 2010 notional or actual. In this regard, that since the claimant by his notional promotion with effect from 27th September 2002 had spent 10 years 8 months and 1 day in the post of General Manager (equivalent to a Director) by 30th May 2013 when Exhibit C4 was issued his retirement was legal and valid. That the fact that the claimant’s promotion was notional is of no consequence in view of the fact that Exhibit D4(c) expressly states that the 8 year service limit applies to all Directors who would have spent eight years by January 1, 2010 (the effective date of the provision) notional or actual. In effect, the applicability of the circulars to the claimant by reason of Exhibit D4(c) is not justiciable. See also the preamble to the Public Service Rules which stipulates that circulars are to be regarded as Amendments to the Rules. The defendant, however, submitted that the alternative argument becomes relevant only if the main argument fails. Where the substantive argument succeeds the alternative argument is wholly immaterial, referring to UBN Ltd v. Pennymart Ltd [1992] 5 NWLR (Pt. 240) 228 at 241 and the Judgment in Nwanna v. National Intelligence Agency and 2 ors (Nwanna’s case) Exhibit C16. To the defendant, the judgment in Nwanna’s case is not a binding precedent on this Court even though the judgment was delivered by the judge now presiding over the instant case. That the learned author of the Nigerian Legal System, Prof. Akintunde Obilade had this to say on the principle of stare decisis at page 132 – Clearly, of course, a Judge of a High Court sitting in his original jurisdiction is not bound by his previous decision. Similar views were expressed by Hon. Justice Umaru Abdullahi of the Court of Appeal in Osom v. Ossom & anor [1993] 8 NWLR (Pt. 314) 678 at 692. He stated as follows – I agree with the Learned Counsel that the doctrine of stare decisis is a well settled principle of Judicial Policy which is strictly to be adhered to by all lower Courts. While a lower Court may depart from its own decision reached per incuriam, a Lower Court cannot refuse to be bound by decision of Higher Court even if those decisions were reached per incuriam. That a decision given per incuriam generally speaking is one which contains a manifest slip or error, referring to the statement of Sir R. Evershed MR in Morelle v. Wakeling [1995] 1 AER 708 at 718. The defendant proceeded to outline what it termed to manifest slips and errors in Nwanna. That the Court in Nwanna found that there was a difference in wording between the relevant provisions in the Public Service Rules and what is now Exhibit D4(c) is in the present case, namely, that in Rule 020810(iv)(a) of the Public Service Rules: “A Director shall compulsorily retire after serving eight years on the post”. While Exhibit D4(c) did not use the phrase “on post”. However, that the Court overlooked the circumstance that Exhibit D4(c) interpreted Exhibit D4(a) and Exhibit D4(a) did use the phrase on post. This is what Exhibit D4(a) provided: “In the case of Directors they shall compulsorily retire after spending eight years on post”. While Exhibit D4(c) stated that – ...Further to my circular Ref HCSF/061/S.I/III/68 of August 26, 2009 [Exhibit D4(a)] on the above subject matter and following several inquiries on the interpretation of the circular under reference, it has become necessary to clarify that all Directors who would have spent eight years by January 1, 2010 notional or actual are affected... To the defendant, clearly on a community reading of Exhibits D4(a) and D4(c) they relate to “Directors” who had spent eight years on post. There was thus no difference between the wording of the circulars and the Public Service Rules. That the Court was, therefore, manifestly in error to have found a conflict between the Public Service Rules and the circulars as a basis for ignoring the effect of Exhibit D4(c). The second error was in finding (assuming for purposes of argument there was a conflict) that Exhibits D4(a), (b) and (c), the circulars from the Head of Civil Service, could not override the Public Service Rules. This finding clearly overlooked the preamble to the Public Service Rules. In the preamble to the Public Service Rules 2008, the Head of the Civil Service who made the Rules states in No. 3 – Amendments Further amendments to these Rules shall be made through circulars, which will be issued from time to time. It is, therefore, the defendant’s submission that by the circulars – Exhibits D4(a), (b) and (c) – the Head of Civil Service has clarified the provisions of Rule 020810(iv)(a) to reflect in essence that a Director who has served 8 years on a post, notional or actual, should be retired. That there was no compulsion on the part of the Head of Service to insert these circulars in the Public Service Rules. The Court is enjoined to consider the circulars as an amendment to the said Rules as stipulated in the preamble. The defendant continued that once again the judgment in Nwanna is clearly distinguishable from the present case and, therefore, not applicable. That Nwanna relates to a Civil Servant whose employment was strictly governed by the Public Service Rules. The employment of the claimant in the present case is governed by Rules and Regulations stipulated by the Board of the defendant. That in as much as the retirement of the claimant in this case was in accordance with the Rules and Regulations of the Board then the decision in Nwanna is not applicable. Furthermore, that it is trite that a judgment can only be binding on the parties and their privies. In Obiora v. COP [1990] 7 NWLR (Pt. 161) 222 the Court of Appeal found that issues are determined amongst parties before the Court and that the decision of a Court is, therefore, not binding on a party who is not a party to the action. Applying this authority, it is the defendant’s submission that the judgment (Exhibit C16) is not binding or applicable to the present case because the parties are completely different and the issues are equally different. It was further submitted that the motive for the promotion and consequent retirement of the claimant is of no importance and the Court is urged to discountenance same, referring to Ajayi v. Texaco Nigeria Ltd [1987] NWLR (Pt. 62) 577 at 593, which held that – The motive for exercising a right to terminate the contract of service of a servant does not render a valid exercise of that right ineffective... It is, therefore, the submission of the defendant that Exhibits D4(a), (b) and (c) are applicable to the claimant by virtue of Exhibit D2 or alternatively by the provisions of Rule 160401(a) of the Public Service Rules 2008. Consequent to the above, that the claimant’s retirement by the defendant is legal and valid and he is not entitled to any relief, urging the Court to so find and hold. On issue 2 i.e. if the said circulars were not applicable to the claimant, what relief is applicable to him, the defendant contended that the answer will fall to be determined by whether the claimant’s employment with the defendant was governed wholly by the Rules and Regulations made by the defendant’s Board (excluding the circulars) or by the Public Service Rules (excluding the circulars). That if the former, as has been earlier argued and explained in the Appendix, the claimant will be entitled to only one month’s pay in lieu of notice. If the latter, the claimant will ordinarily (but not in this case for reasons of the impracticability of his reinstatement order, his failure to plead the quantum of his emoluments and particularize special damages) be entitled to reinstatement or his emoluments up until the 22nd day of February 2015 or damages equivalent to his emoluments up until that date provided the Public Service Rule 020810(iv)(a) is interpreted to apply only to Directors who have actually spent eight years on post. As to the claimant’s employment being governed by Board Rules and Regulations excluding the circulars, the defendant referred to Article 05.20 of Exhibit D1, which provides – Notice of Termination The Board may determine, other than by dismissal, the appointment of a confirmed pensionable staff by giving the staff one month’s salary in lieu of notice. That in Exhibit C8, the claimant’s letter of appointment, paragraph 4 thereof equally stipulates that the claimant’s appointment can be terminated by either party on giving one month’s notice or by paying one month’s salary in lieu. That in view of the terms of the contract of the parties, the only relief available to the claimant would be a claim for 1 month’s salary in lieu of notice, referring to Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 and Western Nigeria Development Corporation v. Abimbola [1966] 4 NSCC 88. To the defendant, the contract of employment of the claimant does not give him a status of irremovability until his retirement, unless certain statutory pre-conditions are met. It is, therefore, not a contract with statutory flavour in the sense that it excludes termination by the giving of notice, relying on Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47 at 63 an Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. That the claimant is, therefore, bound by the terms and conditions as determined by the Board from time to time. That the claimant himself admitted under cross-examination that clause 05.02 of Exhibit D1 is applicable to his employment. In that regard, that the Court cannot derogate from the agreed terms of the parties but should enforce same. Regarding the interpretation of Regulation 020810(iv)(a) of the Public Service Rules, which provides: “A Director shall compulsory retire upon serving eight years on the post”, the defendant submitted that even without the aid of the circulars a notional promotion has the effect of deeming a person to have held the position to which he is notionally promoted. That there is thus no real difference between a deemed status and an actual status, referring to Savannah Bank Nigeria Ltd v. Ajilo & anor [1989] 1 NWLR (Pt. 97) 305 at 325. Therefore, that this provision should be construed as affecting both actual and notional occupancy of the post. On the claim for reinstatement, the defendant contended that even if the Court were to find that the Public Service Rules (excluding the circulars) apply to the claimant, given the time that has elapsed, the reinstatement claim is now academic and the Court cannot grant an order in vain. Regarding failure to plead quantum of emolument, the defendant submitted that even if the Court were to find that the Public Service Rules (excluding the circulars) apply to the claimant, throughout the length and breadth of the claim, the claimant has failed to plead and particularize the quantum of emoluments due to him so no relief can be granted in this regard. On failure to plead and particularize special damages, the defendant contended that even if the Court were to find that the Public Service Rules apply to the claimant (excluding the circulars), he has failed to plead and particularize the claim for N18 Million as special damages (the Court should note that the outstanding claim is now N8,857,268.22 by reason of Exhibit C10). That there is clear and consistent authority that a claimant is obliged to plead and particularize any item of special damages otherwise no evidence is admissible on it and no claim is maintainable, citing Nwaiji v. Coastal Services Nig. Ltd [2004] 11 NWLR (Pt. 885) 552 at 567. That indisputably, the claimant has failed to plead and particularize the N18 Million sought for in this action. The defendant went as to the meaning of particularization. That it means the claimant ought to have listed the different heads of claim of his entitlements, the period for which he was claiming and the sum claimed for each item, citing Nwaiji v. Coastal Services (supra) at 567 – 568. That having failed to plead and particularize the special damages claimed, the claimant is not entitled to recover any sum under this head. The defendant then asked: can a claim be made for both special and general damages? To the defendant, as a matter of settled principle and practice, both special and general damages cannot be awarded in an action for breach of contract such as the instant case. That the claimant has quantified his loss, namely, his entitlements until retirement. The rationale for this position being that the award of special damages adequately covers the loss sustained by the claimant, which may fairly and reasonably be considered either as arising naturally from the breach of contract or as may reasonably be supposed to have been in the contemplation of the parties as a probable result of the breach of it, referring to Kusfa v. United Bawo Construction Co. Ltd [1994] 4 NWLR (Pt. 336) 1 at 15 – 16. Therefore, that an award for general damages will amount to double compensation. The defendant then urged upon the Court that the claim for general damages in the sum of N100,000,000 be rejected and disallowed on this basis. In the final analysis, the Court was urged to come to the conclusion that the claimant is entitled to only one month’s salary in lieu of notice. In conclusion, the defendant urged the Court to dismiss in its entirety the claims of the claimant. The defendant at the end of its final written address had what it termed “Appendix”, referable as such in the body of the final written address. The appendix is numbered into 12 paragraphs. In the appendix, the defendant first traced the constitutional antecedents of the Public Service Commission under the 1963 Constitution as well as those under the 1999 Constitution. To the defendant, the enabling power given to the Federal Civil Service Commission (the author of the Public Service Rules 2008 edition made in Gazette No. 57 of 25th August 2009 Vol. 96) is to make rules for civil servants namely persons directly employed by the Federal Government. That this interpretation is given credence by the separate definition of public service under section 318(1) of the 1999 Constitution as including staff of statutory corporations employed by the Government and staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest. That if the Constitution had intended to confer power on the Federal Civil Service Commission to make rules and regulations for those in the “Public Service” as opposed to those in the “Civil Service” it would have expressly stated so. Rather that the Constitution specifically enacted that the Commission was empowered to appoint persons to the Federal Civil Service only and make Rules for such persons. The defendant then submitted that the Public Service Rules ostensibly made to apply to staff of statutory corporations such as the claimant are ultra vires the powers of the Federal Civil service Commission or its delegate, the Head of Civil Service. CLAIMANT’S SUBMISSIONS In reaction, the claimant framed two issues for the determination of the Court, namely – a) If the letter titled, “Compulsory Retirement from the Services of the Fund” dated 30th May 2013 from the defendant to the claimant, Exhibit C4, is proper before the law. b) If this Court can reject the letter titled, “Compulsory Retirement from the Services of the Fund” dated 30th May 2013 admitted in Evidence as Exhibit C4. Regarding issue a), it is the contention of the claimant that he was employed in the services of the defendant as a Deputy General Manager, Information Technology on August 20,1999. That he was compulsorily retired from the services of the defendant on 30th May 2013. That given that he was born on 22nd February 1955, from the time he was employed till when he was retired, he was yet to clock the age of 60 years or serve the defendant for 35 years as required by section 8, chapter 2, of the Public Service Rules, relying also on Exhibits C1, C2, C3 and C4. The clamant went on that he had not served the required tenure of 10 years, 8 Months and 1 day or 8 years as a Director or General Manager as the case may be, for him to be retired as calculated by the defendant, that is, from 27th September 2002 to 30th May 2013. That the above dates are inapplicable since the policy on granting of notional promotion had been abolished in the Public Civil Service, relying on Exhibits C1, C2, C3, C12, C13, C14, C15, C15A and C16. That he did not enjoy the benefits that are accrued to the Post of a General Manager from 27th September 2002; the said promotion to General Manager was backdated without corresponding remunerations which existed. That his alleged promotion was targeted to retire him prematurely and in bad faith, relying on Exhibits C3, C12, C13, C14, C15, C15A and C16. That part of Exhibit C3 states – ...I am pleased to inform you that Management has approved your promotion to the rank of General Manager on salary scale TFM1A, with Notional effect from 27th of September, 2002 and financial effect from 1st of April, 2011... That this statement shows that the claimant did not enjoy the financial benefits accrued to the post of General Manager. To the claimant, Circular Reference Nos. HCSF/061/S.1/111/68 of 26th August 2009, HCSF/061/S.1/111/188 of 21st October 2009 and HCSF/061/S.1/111/183 of 29th October 2009, on Tenure of Office for Permanent Secretaries and Directors, where the retirement of the claimant was predicated upon are oppressive, harsh, unconstitutional contrary to the provisions of the 1999 Constitution and other relevant laws governing International Labour Organization with principles of fair hearing, justice and equity. That it has to be noted that the above Circulars were not present at the time the claimant was employed by the defendant. They were not part of the contract of employment that the claimant had with the defendant and should not be relied upon during the issuance of Exhibit C4 against the claimant. That it is trite law that parties are bound by the terms of their contract, referring to Anyaegbunam v. Osaka & Akunwata Joe Ogunejiofor & anor v. Pastor Okwudili Osaka & 5 ors [2000] 1 SCNQR 403. The claimant continued that considering the contents of Exhibit C13, which is Sunday Sun Newspaper of 22nd September 2013, it was stated therein – 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. The circular added that: Accordingly, the Governing Board for all parastatals, Agencies and Statutory corporations of Government, which currently apply 60 years of age and/or 35 years of Service for mandatory retirement… That based on the provisions of section 8 in chapter 2 of the Public Service Rules, it is wrong for the defendant to have retired the claimant when he was not 60 years of age neither had he put in 35 years of service to the defendant. The claimant also relied on the contents of the Daily Trust Newspaper of January 27, 2014, admitted in evidence as Exhibit C14, which deals with the judgment delivered in favor of Ambassador Dozie Nwanna, who sued the National Intelligence Agency (NIA) challenging his retirement and where it was ruled that “...the tenure policy should affect a Director from the actual date that he assumes office...”. That the Court went on to rule as follows – I hereby find and hold the eight-year tenure policy applied to the directors who have actually spent eight-years on the post, not notionally as provided for in the Public Service Rules. The claimant relied on Exhibit C14, since he had not spent 8 years as a Director/General Manager before he was retired by the defendant, and then submitted that Exhibit C14 was wrongly issued against him. Furthermore, he relied on Exhibit C15, which is the Daily Trust Newspaper of Tuesday March 11, 2014 captioned, “Jonathan recalls 45 directors from retirement”. That the memo reads in part: ...Please be informed the Mr. President has graciously approved that the 45 directors in the Ministry of foreign affairs be recalled and henceforth, the basic for retirement of officers in the Federal Public Service should be based on the actual date of promotion and not notional date... To the claimant, it has to be noted that the President of Federal Republic of Nigeria, Dr. Goodluck Ebele Jonathan, stated that the tenure of 8 years as directors needed to be calculated from the date they assumed office and not the notional date of promotion. That the principle of notion is hereby killed by the Honourable President Dr. Goodluck Ebele Jonathan. That for the defendant to have retired the claimant based on the principle of notion is wrong, urging the Court to hold same. That Exhibit C15 affirmed the judgment delivered in favor of Ambassador Dozie Nwanna, who sued National Intelligent Agency (NIA) challenging his retirement. The claimant equally relied and adopted the above exhibit in support of his case. The claimant referred to Exhibit C15b captioned, “Circular Review (Cancellation) of Policy on Granting of Notional Promotion”. It states as follows – Further to the commission’s circular Ref. No FC.6296/VOL.X/38 of 2nd July, 2013, on review of the policy on notional promotion to entitled officers in the Federal Civil Service, I am directed to inform you that, the Commission has decided to put an end to the issue of notional promotion with effect from 1st January, 2011. Consequently, no recommendation for notional promotion will be considered with effect from that date. To the claimant, Exhibit (Exhibit C15b) cancelled the policy of granting notional promotion by the Federal Government of Nigeria with effect from 1st January 2011. That it has to be noted that Exhibit C4 was dated 30th May 2013, which was after Exhibit C15b. That the retirement of the claimant based on the principles of Exhibit C15b is illegal, urging the Court to hold same since the principle of notional promotion had been cancelled in the Federal Civil Service. It is the contention of the claimant that Ambassador DCB Nwanna v. National Intelligence Agency & 2 ors Suit No: NICN/ABJ/123/2011 (Exhibit C16) has not been overruled by any Court in Nigeria; as such it is still binding with regards to the subject matter of this suit. Consequently, that the Court should reject and refuse Exhibit C4 used in retirement of the claimant. To the claimant, any rejection of his submissions, legal and statutory authorities, in this written address, will amount to sacrifice of justice, contrary to the rule that justice should not be sacrificed, citing Taiye Oshobija v. Alhaji Surakatu I. Amuda & anor [1992] 6 NWLR (Pt. 250) 690 at 709 and UBN Plc v. Ikwen [2000] 3 NWLR (Pt. 648) 223 at 238. The claimant then urged the Court to invoke section 36(1) of the 1999 Constitution in his favour, since he was not up to 60 years of age or had served in the service of the defendant for 35 years, before he was retired by the defendant. That the principles of notional promotion in the Civil Service had been cancelled; the claimant did not enjoy the financial benefits of his notional promotion to a General Manager before he was compulsorily retired by the defendant. It will be against the principles of fair hearing enshrined in section 36(1) of the 1999 Constitution that deals with fair hearing to accept the retirement of the claimant by the defendant in this Court. The claimant proceeded to urge that Exhibit C4 be accordingly rejected. On issue b) i.e. whether this Court can reject the letter titled, “Compulsory Retirement from the Services of the Fund” dated 30th May 2013 admitted in Evidence as Exhibit C4, the claimant answered in the affirmative. That based on the provisions of Order 11 Rule 1(1), (2) and (3), Order 3 Rule 3 of the National Industrial Court Rules 2007 and section 36(1) of the 1999 Constitution, this Court has jurisdiction to entertain and determine matters of this nature. That the Court has absolute discretionary powers in respect of matters of this nature which must be exercised judicially and judiciously, referring to Dele Aderohunmu Sanni & 11 ors v. Oba Kamal Deen M. Abdulsalam & anor [2011] 20 WRN 181. The claimant proceeded to react to the specific arguments advanced by the defendant. On Exhibits D1 to D4(c), the claimant contended that the provisions of these documents have been overtaken by recent events; and that the contents of Exhibits C12, C13, C14, C15, C15A and C16 have rendered the powers of the above Exhibits useless. Here, the claimant also relied on Ambassador DCB Nwanna v. National Intelligence Agency & 2 ors Suit No: NICN/ABJ/123/2011 decided on 16th December 2013, where at page 30 it was stated thus – ...So where promotion is disadvantageous to the employee is that a promotion? The claimant was promoted notionally in 2004...with no financial benefit the actual promotion with financial benefit was in 2006, between 2004 and 2006, the claimant was not actually a Director....Here I am in agreement with the submissions of the claimant, that for 8-year tenure policy to apply, it must be that the Director has served 8 years on the post...since those on notional promotion cannot enjoy financial benefit from the notional promotion cannot be said to have been promoted to their benefit... This being the case I hereby find and hold that 8-year tenure policy applies only to Directors who have actually spent eight years on the post, not notional as provided for Rule 0281 (iv) of the Public Service Rules (2008). Exhibit D14 in suggestion otherwise cannot override Rule 02810 (IV) (a) of the Public Service Rules. [There are significant omissions in this quotation.] To the claimant, by the principles in the above authority which tallies with the case of the claimant on the ground that he had not served 8 years as Director/General Manager, no complete financial benefits were attached to the above promotion. The promotion of the claimant was not beneficial to him but to retire his from the service of the defendant. The claimant then submitted that Exhibits D1 to D4(c) had been overruled by his above listed admitted Exhibits. The claimant went on that the provisions of section 9(3) of the Nigeria Social Insurance Fund (NSITF) Act, cannot govern the employment of the claimant because the Rules and Regulations contained therein had been overruled by his above listed Exhibits especially Exhibits C16, C12, C13, C14, C15 and C15A. That the above Act is oppressive, harsh, unfair and unconstitutional. The claimant did not, however, substantiate how section 9(3) of the NSITF Act is unconstitutional. Regarding the legal and statutory authorities cited by the defendant, the claimant contended that they do not apply in this suit. That they were all cited out of context which lack legal powers. That the defendant relied much on technicalities which has no place in modern law practice, relying on Exhibits C1 to C16 as neutralizing the authorities cited by the defendant. On Ambassador DCB Nwanna v. National Intelligence Agency & 2 ors, the claimant contended that the judgment is sound and still binding. That the principles in the case tally with the present suit; and the judgment has not been set aside by any Court in Nigeria. That the defendant did not exhibit any document to indicate that the above judgment had been overruled by any Court in Nigeria. The judgment was not obtained by fraud, deceit or misrepresentation; no court can set it aside. That the judgment is a binding precedent on this Court since it has not been set aside by any Court, relying also on Exhibits C12, C13, C14, CI5, C15A and C16 to buttress his claims. On the doctrine of stare decisis, the claimant submitted that it is a fundamental principle of law recognized worldwide. That the doctrine can only be departed from if the judgment of the lower Court was reached per incuriam. A decision given per incuriam is the one which contains manifest slip or error. That Nwanna has no visible manifest slips or errors therein, has not been set aside or overruled; and so it applies in this case. There is no manifest error in the above judgment. That the defendant is relying on the principles of technicality, which has no place in the modern law practice, citing UBN Plc v. Ikwen [2000] 3 NWLR (Pt. 648) 223 at 238. That the defendant is relying/basing its defence on technicalities which the Court should reject. That all the legal authorities cited by the defendant under this heading do not apply, and so the Court should reject them. That the judgment in Nwanna is undistinguishable from the present case and, therefore, applicable. To the claimant, the motive for the promotion and the consequent retirement of the claimant is of importance which the Court should countenance. That the retirement of the claimant by the defendant is accordingly not legal and valid; and so he is entitled to the reliefs sought. Regarding the issue of the quantum of the claimant’s emoluments and particularizing his special damages, the claimant submitted that in the amended statement of facts establishing the cause of action of the claimant dated 17th July 2014, he attached and exhibited the document marked as Exhibit C8 dated 28th August 1999, which is titled “Offer of Employment”. That this document contains the claimant’s emoluments. Also, that in the last paragraph of the amended statement of facts establishing the cause of action, he particularized his claims for general damages captioned “Particulars for General Damages”. That the above documents are in the Court’s file. It will be absolutely wrong for the defendant to state that the claimant did not plead the quantum of his emolument and particularize his special damages. That the defendant is being technical in nature, referring to UBN Plc v. Ikwen (supra). On claims for special and general damages, the claimant contended that it is a fundamental principle of law that a party to a suit can be entitled to both special and general damages depending on the gravity of the claims. That special damages are those damages that are suffered by the claimant directly; while general damages are those damages awarded to a party as a result of what that party had suffered due to the actions of the defendant. A party can be entitled to special and general damages depending on each particular case; in this present case the claimant was wrongfully retired, his entitlements were not paid to him. These unpaid entitlements constitute the special damages while the sufferings of the claimant due to the above wrongful termination of his appointment by the defendant, when calculated totally, amounts to general damages. That the defendant did not cite any legal or statutory authority that states that a party cannot be entitled to both special and general damages. The claimant reiterated that the defendant is relying on technicalities which he urged the Court to reject based on the principles in UBN Plc v. Ikwen (supra). In conclusion, the claimant prayed the Court to reject the letter titled, “Compulsory Retirement from the Services of the Fund” dated 30th May 2013 and admitted in evidence as Exhibit C4. The claimant also asked for judgment and cost against the defendant. DEFENDANT’S REPLY ON POINTS OF LAW In replying on points of law, the defendant contended that the claimant’s final address rests on three new issues, namely – (a) Exhibits D4(a), (b) and (c) – the circulars from the Head of Service – not being part of the letter of appointment of the claimant do not form part of his conditions of service. (b) Exhibit C15 – circular abolishing notional promotion in the Civil Service – applies to the claimant particularly because it was issued before the notional promotion of the claimant. (c) The effect of newspaper publications on the interpretation of the circulars – Exhibits D4(a), (b) and (c). The defendant then proceeded to address these issues seriatim. Regarding issue (a), the defendant submitted that Exhibits D4(a), (b) and (c) having been adopted by the Board of the defendant in Exhibit D2, form part of the Rules and Regulations guiding the employment of the claimant. That this is the consequence of the provisions of section 9(4) of the NSITF Act, that the conditions of service of the defendant’s employees shall be as determined by the Board from time to time. The Court was then urged to disregard the claimant’s argument in this regard. On issue (b), the defendant submitted that the submission of the claimant here should be disregarded on the ground that it relates to a fact not pleaded. That it is settled that parties are bound by their pleadings and submissions made on facts not pleaded go to no issue, referring to Klifco Nig Ltd v. NSITF MB [2005] 6 NWLR (Pt. 922) 445 at 456, Nnamani v. Adigui [1993] 7 NWLR 221 and Woluchem v. Gudi [1981] 5 SC 291. The Court was then urged to discountenance all submissions relating to the fact that the claimant should not have been promoted notionally because of Exhibit C15 since no such fact was pleaded. However, that assuming but without conceding that the Court can rely on the submissions of the claimant, it is the further submission of the defendant that Exhibit C15 does not apply to parastatals like the defendant, but to Civil Servants only. That this is brought out by the fact that parastatals were not included in the circulation list unlike Exhibits 4(a), (b) and (c) that expressly listed “Directors-General and Chief Executives of Parastatals” in the circulation list. That not including parastatals in the circulation list simply means that Exhibit C15 does not apply to parastatals. That this would be in consonance with the maxim “expresso unius est exclusio alterius” i.e. to express or include one thing implies the exclusion of the other. That the Court should, therefore, disregard all submissions by the claimant in this regard. On issue (c) i.e. the effect of the newspaper publications, Exhibits 14(a), (b) and (c) on this case, the defendant submitted that the fact that President Jonathan recalled Directors in the Ministry of Foreign Affairs is of no consequence to this case. That the Court is enjoined to decide a case based on the facts pleaded and evidence adduced before it. That the act and conduct of the President in another case is not a precedent that the Court should follow in this case. This is particularly so because a newspaper publication is not an aid for the Court to interpret the circulars in contention. In the circumstance, the Court was urged to disregard the said newspaper publications admitted as Exhibits 14(a), (b) and (c). The defendant concluded by urging the Court to dismiss the claimant’s case. COURT’S DECISION I heard learned counsel and considered all the processes filed in this matter. In considering the merit of the case I need to remark that counsel to the claimant’s reliance on newspaper publications such as the Sunday Sun and the Daily Trust for determining what the law says or a judicial authority states is not good advocacy. Order 20 Rule 3 of the NIC Rules 2007, for instance, provides that “…Where any unreported judgment is relied upon the Certified True Copy shall be submitted along the written address”. Even when counsel to the claimant frontloaded a copy of the judgment in Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit No. NICN/ABJ/123/2011 the judgment of which was delivered on December 16, 2013 as Exhibit C16, he still was referring to newspaper publication to indicate what the case held. To worsen matters, the whole structure of the claimant’s written address is littered with poorly constructed sentences and expressions. For instance, there are to be found in the address expressions such as “the above Circular References Numbers”, paragraph 4.1(6); “We regards to”, paragraph 4.1(10); “it is our responds”, paragraph 4.2(3); “In the Amended statement of Facts establishing the cost of action”, paragraphs 4.2(9) and 4.2(10); etc. Even when quotations were made, the text said to be quoted were often misquotes as is the case of the quotation from Nwanna at paragraph 4.2(3) of the written address. I must state that I really had a very difficult time trying to make sense out of the poorly written final address. Coming from counsel, this is most a pity. The penchant for generalized submissions is self evident in the submissions of counsel to the claimant. For instance, in paragraph 4.2(12) of the written address, counsel to the claimant accused the counsel to the defendant of not citing any authority for the proposition that a party cannot be entitled to both special and general damages. Yet, when the counsel to the claimant submitted that a party can be entitled to both special and general damages, that submission was equally not substantiated. See paragraph 4.2(11) of the claimant’s written address. The claimant had placed reliance on Exhibit C15 dated 28th May 2010, a circular which cancelled the policy of granting notional promotion in the Civil Service, arguing that it applies to him particularly because it was issued before the notional promotion of the claimant. The reaction of the defendant is that this fact is not pleaded and so cannot be relied upon by the claimant. In any event, that the circular was not addressed to “Directors-General and Chief Executives of Parastatals” as to include the defendant in the instant case. I agree with the defendant that the claimant cannot rely on Exhibit C15 in this case. First, in Elizabeth Modupe Oyeduntan v. West African Examinations Council (WAEC) & anor unreported Suit No. NICN/LA/534/2013 the judgment of which was delivered on February 2, 2015, the issue was whether WAEC qualifies for purposes of the implementation of the 8-year tenure rule. In holding that it is not as it is not a parastatal for purposes of the Public Service Rules, this Court noted that the head of WAEC was not even listed as an addressee in the circular communicating the 8-year tenure rule. Secondly, Exhibit C15 appears not to emanate from the Office of the Head of the Civil Service of the Federation (HCSF). In fact the HCSF is one of the addressees; and Exhibit C15 was signed by Femi Olayisade, mni, Permanent Secretary. There is no indication whatsoever where Exhibit C15 is coming from in terms of the establishment or institution that wrote it. It is not even indicated the establishment that the signatory to it belongs to. It simply states: “Further to the Commission’s Circular Ref. No. FC.6298/Vol.X/38 of 2nd July, 2003…” If what is meant by this is that it comes from the Federal Civil Service Commission, then out-rightly, and as shown in the addressees, it is meant for the core Civil Service, not the Public Service in general. The issue before the Court is simple. By Exhibit C4 dated 30th May 2013, the claimant was compulsorily retired with immediate effect i.e. as from 30th May 2013 on the basis of the 8-year tenure rule of the Federal Government. To the claimant, because he was born on 22nd February 1955, he will only clock 60 years of age on 22nd February 2015. That the rule governing his retirement is that he retires at age 60 or when he puts in 35 years of service, whichever comes first. That in either case, he is not covered. However, that even on the 8-year tenure rule, his promotion being with financial effect from 1st April 2011 must be allowed to run its course if the 8-year tenure rule is held to apply to him; and this is so despite that he was notionally promoted from 27th September 2002. See Exhibit C3. In support, the claimant placed reliance on this Court’s decision in Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors. The argument of the defendant is that Exhibit C4 stands as the circulars upon which it was based apply to the claimant including that interpreting and clarifying the issue of promotion i.e. that the period of notional promotion be included in the calculation for purposes of the 8-year tenure rule. To the defendant, this remains so despite Nwanna, a case that was in any event wrongly decided and so should not be relied upon by this Court in this case. Nwanna decided that notional promotion cannot be used in the calculation for purposes of the 8-year tenure rule. One critical issue that presently arises in the determination of this case is whether Nwanna was wrongly decided as canvassed by learned SAN, counsel to the defendant. In the first place, it is the argument of the defendant that the circulars in issue apply simply because the defendant’s Board adopted them vide Exhibit D2. To the defendant, had the Board not approved and adopted the circulars, they (or any other circulars not approved by the Board) would have been inapplicable to the claimant given that there appears to be no legal authority for the Civil Service Commission or Head of Civil Service to make rules for employees of Statutory Corporations/Parastatals. In Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240, the validity of the 8-year tenure rule was challenged and arguments were proffered that the claimants being governed by the statute establishing them, they cannot be governed by the Public Service Rules; and by extension, the 8-year tenure rule. This Court rejected that argument and upheld the supremacy of the Public Service Rules (especially in terms of provisions dealing with leaving the service) over and above the conditions of service of the claimant made pursuant to the enabling statute of their employer. The Court went on to hold that the defendant in that case is a parastatal and so is caught up by the compulsory provisions dealing with leaving service. The argument of the defendant in the instant case is that the HCSF cannot make rules for employees of Statutory Corporations/Parastatals. This is the thrust of what the defendant presented as appendix to its written address where the defendant argued that the Federal Civil Service Commission (FCSC) is the author of the Public Service Rules; and that if the intention was to confer on the FCSC the power to make rules for those in the Public Service as opposed to those in the Civil Service, it would have been expressly stated so in the Constitution. I think the defendant is confusing the old Civil Service Rules with the current Public Service Rules. The old Civil Service Rules applied only to the Civil Service; the current Public Service Rules have replaced the old rules and are more general in application to the Public Service. For instance, Rule 030425 of the Public Service Rules reiterates the prohibition of private practice but acknowledges the exemptions granted to Medical Practitioners and Law Lecturers in the Universities. Given that Law Lecturers are not Civil Servants, why did Rule 030425 reiterate the exemption given to them as to private practice? The whole of Chapter 16 of the Public Service Rules is devoted to the application of the Rules to Parastatals. In fact Rule 020810 in making provision for compulsory retirement on the basis of the retirement age of 60 years or 35 years pensionable service whichever comes earlier acknowledges the exemption granted Judicial Officers and Academic Staff of Universities and other tertiary Institutions who retire respectively at age 65 or 70 years as the case may be. Why is all of this so? The answer to these posers lies in the simple fact that the Public Service Rules are meant to be of general application not just to Civil servants but to officers in the Public Service. In Chapter 1, Rule 010101 dealing with application of the Rules first provides that the Rules apply to all officers except where they conflict with specific terms approved by the Federal Government and written into the contract of employment or letters of appointment. Even in regards to constitutional office holders (and they are listed therein starting from the President, Vice President, Chief Justice of Nigeria to Chairmen and members of the listed statutory bodies), the Public Service Rules, in so far as the conditions of service and any law applicable to these officers are concerned, the Rules shall apply if they are not inconsistent with the provisions of the Constitution. I must point out that in Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014 the judgment of which was delivered on January 30, 2015, this Court held that the 8-year tenure rule applies to the Federal Airports Authority of Nigeria (FAAN). The Public Service Rules, although in some respects it allows public institutions governed by enabling laws to operate within those laws, the provisions on leaving service under the Public Service Rules are mandatory and sacrosanct to all and do not exempt those in parastatals. Chapter 16 of the Public Service Rules, for instance, deals with the application of the Public Service Rules to Federal Government Parastatals. In Rule 160103, it is provided as follows – 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. For example, variations in probationary periods and maturity periods for promotion only reflect organisational peculiarities and not inconsistencies with the Public Service Rules. However, in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules shall apply. Rule 160401 then goes on to provide that – (a) 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. (b) 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. It is under Section 8 of Chapter 2 of the Public Service Rules that Rule 020810, which provides for the tenure policy, is enacted. Rule 020810 provides as follows – (i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier. (ii) No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier. (iii) The provision of (i) and (ii) of this Rule is without prejudice to prevailing requirements for Judicial Officers and Academic Staff of Universities and other tertiary Institutions who retire to 70 and 65 years respectively. (iv) Provided the officer would not have attained the retirement age of 60 years or spent 35 years of pensionable service, whichever is earlier: (a) a Director shall compulsorily retire upon serving eight years on the post; and (b) 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. I must point out that Rule 160401 does not say that Parastatals can pick and choose when it comes to the provision of Section 8 in Chapter 2 of the Public Service Rules as the defendant had argued when it stated that the circulars apply only because they were first adopted by the Board. There is no choice here. The provision of Section 8 in Chapter 2 of the Public Service Rules is mandatory. I indicated in Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor that the Public Service Rules provisions regarding leaving service, under which will be found Rule 020810(iv) – the rule that lays down the tenure policy – overrides any other provision in the conditions of service of Parastatals; and that the Public Service Rules have constitutional force and so must be read to supersede the conditions of service of the claimants especially in terms of the provisions dealing with leaving of service. This means that even the argument of the claimant in the instant case to the effect that it is the 60 year retirement age or 35 years in service that applies to him must be read subject to the 8-year tenure rule. Regarding the instant case, it is my finding and holding that the Public Service Rules is superior to and so overrides the internal conditions of service of the defendant (the NSITF) especially in terms of the rules dealing with leaving of service as enjoined by Rule 160401 of the Public Service Rules. In the application of Nwanna to the instant case, the defendant had argued that this Court was manifestly in error to have found in Nwanna a conflict between the Public Service Rules and the circulars as a basis for ignoring the effect of Exhibit D4(c). The defendant proceeded to make the distinction that Nwanna relates to a Civil Servant whose employment was strictly governed by the Public Service Rules, while the employment of the claimant in the present case is governed by Rules and Regulations stipulated by the Board of the defendant. The defendant went on that the second error was in finding (assuming for purposes of argument there was a conflict) that Exhibits D4(a), (b) and (c), the circulars from the Head of Civil Service, could not override the Public Service Rules. To the defendant, this finding clearly overlooked the preamble to the Public Service Rules. In the preamble to the Public Service Rules 2008, the Head of the Civil Service who made the Rules stated in No. 3 as follows – Amendments Further amendments to these Rules shall be made through circulars, which will be issued from time to time. It is, therefore, the defendant’s submission that by the circulars, Exhibits D4(a), (b) and (c), the Head of Civil Service has clarified the provision of Rule 020810(iv)(a) to reflect in essence that a Director who has served 8 years on a post, notional or actual, should be retired. That there was no compulsion on the part of the Head of Service to insert these circulars in the Public Service Rules. The defendant then urged that the Court is enjoined to consider the circulars as an amendment to the said Rules as stipulated in the preamble. Given these rather weighty submissions of the learned SAN, it is needful to consider them in greater details. By her argument, the learned SAN has elevated the preamble to the status of the Public Service Rules. Two issues arise here: what is actually a preamble? Is the preamble quoted by the learned SAN actually a preamble in the true sense of the word? In other words is it even part of the Public Service Rules? In determining these issues I must point out that the word, “preamble”, as used and understood in law is not necessarily the same with its usage and understanding in ordinary English. Within the context of legal usage, the Black’s Law Dictionary, Deluxe 9th Edition at pages 1294 – 1295, for instance, defines a preamble as – An introductory statement in a constitution, statute, or other document explaining the document’s basis and objective; esp. a statutory recital of the inconveniences for which the statute is designed to provide a remedy. A preamble often consists of a series of clauses introduced by the conjunction whereas. Such a preamble is sometimes called the whereas clauses. The Black’s Law Dictionary then refers to Den v. Urison 2 NJL 212 (1807) as stating – The preamble cannot control the enacting part of the statute, in cases where the enacting part is expressed in clear, unambiguous terms; but in case any doubt arises on the enacting part, the preamble may be resorted to explain it, and show the intention of the law maker. The Court of Appeal in Ona v. Atenda [2000] 5 NWLR (Pt. 656) 144 at 267 had this to say – The proper function of a preamble is to explain certain facts which are necessary to be explained before the enactment contained in the Act can be understood. It is undoubtedly part of the Act and it is a legitimate aid in construing the enactment, particularly when there is ambiguity or conflicting view which fits the preamble ought to be preferred. See…Ogbonna v. AG, Imo State & ors [1992] 1 NWLR (Pt. 220) 647 and Olowosago v. Adebanjo [1988] 4 NWLR (Pt. 88) 275 at 287 – 288. Within the context of ordinary usage, the Chambers Dictionary, for instance, defines “preamble” as: “a preface; an introduction, esp, that of an Act of Parliament, giving its reasons and purpose…a prelude”. By Chambers 21st Century Dictionary (Revised Edition), it is “an introduction or preface, eg to a speech or document; an opening statement”. And by the Oxford Advanced Learner’s Dictionary (International Student’s Edition), it means “an introduction to a book or a written document; an introduction to [something] you say….” Now the Public Service Rules (2008 Edition) meant to review the 2007 Edition came as Government Notice No. 278 in the Federal Republic of Nigeria Official Gazette No. 57 of 25th August 2009 Vol. 96. It has a foreword at page (i) by the Late President, Umar Musa Yar’Adua, GCFR and a preamble at page (ii) by A. I. Pepple, Head of the Civil Service of the Federation. This is then followed by the table of contents at page (iii), index at pages (iv) to (xvi) and thereafter the provisions of the Rules themselves. In terms of the actual Rules, the pages are not numbered but the Rules are numbered sequentially according to the Chapters starting with Rule 010101 in Chapter 1 and ending with Rule 160601 in Chapter 16. The Appendixes to the Rules follow thereat and accordingly end the Rules. It is in the preamble by A. I. Pepple that would be found the following quotation quoted by the learned SAN – 3. Amendments Further amendments to these Rules shall be made through Circulars, which will be issued from time to time. Can this preamble be said to be part of the Rules; and if so what is its legal effect? Given the submissions of the learned SAN, the preamble is part of the Rules and consequently has legal effect. I indicated earlier that, to the Black’s Law Dictionary, the preamble cannot control the enacting part of the statute. In this sense, the preamble quoted by the learned SAN cannot control the Public Service Rules. I do not even think that as couched the preamble talked of by the learned SAN is part of the Public Service Rules. It is merely to introduce the Rules as published. For instance, in explaining the arrangement of Chapters, Sections and Rules, the preamble states that “except where otherwise indicated by the context, the Index at the back contains the list of topics with their corresponding rule numbers”. Like I indicated earlier, the Index is actually provided for at pages (iv) to (xvi) and so comes at the front, not back, of the Rules. Even within the context of the strict legal usage, a preamble, although part of the Act, is not used in construing the Act unless there is ambiguity in interpreting the sections of the Act. See Ona v. Atenda (supra). Even here, a preamble is to aid the interpretation of sections of the Act. In the scenario of Nwanna, there was no ambiguity as to construction of the provisions of the Public Service Rules needing the preamble to aid in resolving. The preamble the learned SAN cited is one that simply says that amendments of substantive provisions of the Rules can be through circulars. How then can this preamble be an aid to construing sections of the Public Service Rules? A preamble explains the objectives of an Act or document. How is the instant preamble one that explains the objectives of the Public Service Rules? In all I am of the firm opinion that the instant preamble was used, not in the legal sense, but in its ordinary sense of an introduction to a booklet; even if it were used in the legal sense, there is no ambiguity as to the construction of any provision of the Pubic Service Rules for which the preamble can be called in aid. This being the case, I reiterate my holding in Nwanna that circulars cannot override clear provisions of the Public Service Rules especially if it is noted that the Rules themselves derive from the Constitution and accordingly have constitutional force. See Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378 SC. I earlier indicated the supremacy of the Public Service Rules over and above the conditions of service of the defendant. In that wise, I find no reason not to abide by Nwanna. As far as this Court is concerned, Nwanna remains good law and so is binding and applicable in the instant case. It was the further argument of the defendant that circulars have the effect of statutory instruments since they can by the preamble to the Public Service Rules amend the main Rules themselves. I must however state here that by Exhibit C6, Circular Ref. No. HCSF/061/S.1/III/183 interpreted and clarified Circular Ref. No. HCSF/061/S.1/III/68. Two things need to be noted here. First, if circulars were statutory instruments in the manner canvassed by the defendant, it must then be noted that the question of interpreting and clarifying them will not lie with the Head of the Civil Service of the Federation (HCSF) but with the Court since the construction of contracts and statutory provisions is a function of the law courts, not the executive arm of government. Secondly, in labour relations, circulars may have the kind of force of statutory instruments canvassed by the defendant but only if they confer a benefit on the employee(s). See Oyo State v. Alhaji Apapa & ors [2008] 11 NLLR (Pt. 29) 284, where this Court acknowledged that a circular conveying salary increase for workers would have the force of law. Regarding the interpretation of Rule 020810(iv)(a) of the Public Service Rules, the defendant had submitted that even without the aid of the circulars a notional promotion has the effect of deeming a person to have held the position to which he is notionally promoted; as such there is no real difference between a deemed status and an actual status, referring to Savannah Bank Nigeria Ltd v. Ajilo & anor [1989] 1 NWLR (Pt. 97) 305 at 325, and urging that this provision should be construed as affecting both actual and notional occupancy of the post. This submission is of course neither here nor there as it does not show how faulty Nwanna is in not upholding notional promotion. Here the defendant does not seem to appreciate the inequity of notional promotion that Nwanna rejected. An employee cannot be promoted to his detriment; and it cannot be a real promotion where no financial benefits accrue to the employee. Nwanna was pretty clear on these principles applicable in labour relations. Exhibit C3, which communicated the promotion of the claimant, is dated 20th April 2011. It states that the claimant has been promoted to the rank of General Manager on salary scale TMF1A with notional effect from 27th September 2002 and financial effect from 1st April 2011. In other words, for close to 9 years, the claimant could not be told of his promotion; and just when the claimant was promoted he stayed for only two years on the post before being compulsorily retired vide Exhibit C4. It is this inequity that Nwanna held is inapplicable in labour relations. It must be noted that in labour relations, where benefits have accrued under a contract of employment, any clause in the conditions of service which seeks to take away that benefit must be strictly construed. See Ekunola v. ACBN [2006] 14 NWLR (Pt. 1000) 292. The claimant was due for promotion as at 27th September 2002 but was not so promoted. If he were, he would have had his financial benefits as from that date. By promoting him on 20th April 2011 but notionally from 27th September 2002 and financially from 1st April 2011, what the defendant has done is to seek to deny the claimant (indeed the claimant was thereby denied) his new and improved salaries that was accruable as a result of the promotion. An act such as this on the part of the employer must be strictly construed as it seeks take away a benefit accruable to an employee. I note here the argument of the defendant that the motive for the promotion and consequent retirement of the claimant is of no importance, urging the Court to discountenance same, and referring to Ajayi v. Texaco Nigeria Ltd [1987] NWLR (Pt. 62) 577 at 593, which held that the motive for exercising a right to terminate the contract of service of a servant does not render a valid exercise of that right ineffective. The defendant does not seem to appreciate the essence of this Court. In Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, this Court, in explaining its essence, quoted with approval the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that – The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. Section 254C(1)(f) of the 1999 Constitution, as amended, clothes this Court with jurisdiction over unfair labour practice. On the basis of this jurisdiction, this Court has held that though promotion of an employee is neither automatic nor as of right (Abenga v. Benue Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610), it can be denounced on by the Court if it is vindictively denied. See the case of Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, where it was held that a vindictive denial of promotion as well as a vindictive suspension are unfair labour practices and so are actionable. Nwanna held notional promotion to be inequitable. In fact, Nwanna stopped just short of branding it an outright unfair labour practice especially as no financial benefit follows it. The fact that it is inequitable means that it approximates to an unfair labour practice. In that regard, I hereby uphold the reasoning in Nwanna, which led to the conclusion that notional promotion cannot be factored in for purposes of calculating 8 years in the application of the 8-year tenure rule under Rule 020810(iv)(a). For the umpteenth time, Nwanna is hereby reaffirmed as I see no reason to disturb the reasoning and holding therein. This of course means that the argument of the defendant that a judgment can only be binding on the parties and their privies, citing Obiora v. COP [1990] 7 NWLR (Pt. 161) 222, and so the judgment in Nwanna is not binding or applicable to the present case because the parties are completely different and the issues are equally different goes to no issue. A judgment may be binding on only the parties, there is, however, no rule of law that says the reasoning therein cannot be adopted and applied in future cases. This is the hallmark and essence of the twin doctrines of judicial precedent and stare decisis where decisions of courts of coordinate jurisdiction, though not binding, remain persuasive amongst themselves. I have not seen any reason why Nwanna should not be persuasive and binding in the instant case. For all the reasons I have so far given, it is my finding and holding that the compulsory retirement of the claimant is unlawful and so null and void and of no effect whatsoever. This means that what the defendant did is a nullity before the law. See BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC. The claimant accordingly has successfully proved his case and so is entitled to this Court’s verdict. The defendant, however, argued that the claimant failed to plead quantum of his emolument. That even if the Court were to find that the Public Service Rules (excluding the circulars) apply to the claimant, throughout the length and breadth of the claim, the claimant failed to plead and particularize the quantum of emoluments due to him and so no relief can be granted in this regard. The case of Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014 the judgment of which was delivered on January 30, 2015, is handy here. I crave to quote extensively from the case as the issues addressed therein are apt for present purposes. In that case, this Court held as follows – 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. Coming to the instant case, the claimant in paragraph 15 of his statement of facts indicated that based on all the documents he frontloaded, his appointment was wrongly terminated for which he is praying for: reinstatement as his tenure will not expire until 22nd February 2015; salaries and necessary entitlements and benefits due to him or N18 Million representing his total salaries, benefits and entitlements up to date of retirement which is 22nd February 2015; and N100 Million as general damages. The claimant proceeded to give the particulars of general damages. I note that given the date of this judgment, the date 22nd February 2015 had come and gone, meaning that the question of reinstatement is no longer in issue and so cannot be granted. The claimant, born on 22nd February 1955 (see Exhibit C1), clocked 60 years of age on 22nd February 2015. By Rule 020810 of the Public Service Rules, for the claimant, the attainment of the age of 60 years is first in time in relation to either service of 35 years or the 8-year tenure rule. Since I held that the claimant’s compulsory retirement was null and void, ordinarily the order to make is one of reinstatement; but this cannot be for the reason already given – the claimant is passed his retirement age. What the claimant is entitled to, therefore, are his cumulative salaries and allowances and all other benefits accruable to him up to 22nd February 2015, the date he clocked 60 years of age. Exhibit C4 compulsorily retired the claimant with immediate effect i.e. from the date of Exhibit C4, namely, 30th May 2013. The claimant was due to retire on 22nd February 2015. This means that the claimant is entitled to his salaries, allowances and all other benefits for the period 30th May 2013 to 22nd February 2015. In line with the Supreme Court decision in Hon. Chigozie Eze & 147 ors v. Governor of Abia State & 2 ors, and this Court’s decision in Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor, it is my order that the claimant is entitled to be paid his salary, allowances and all other benefits as are due to him for the period 30th May 2013 to 22nd February 2015 less the sum of Nine Million, One Hundred and Forty-Two Thousand, Seven Hundred and Thirty-One Naira, Seventy-Eight Kobo (N9,142,731.78k) the claimant acknowledged receiving vide Exhibit C10. As I indicated and held in Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor, having thus in the instant case ordered that the claimant is entitled to be paid his salary and allowances for the period 30th May 2013 to 22nd February 2015, when he was due to retire given the attainment of 60 years of age, the claim for general damages is not sustainable as to grant that would amount to double compensation, a windfall to say the least. See CCB (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 CA. In any event, by Baba v. Nigerian Civil Aviation Training Centre [1986] 5 NWLR (Pt. 42) 514 CA, no compensation can be claimed in respect of injury done to the servant’s feelings by his dismissal or in respect of difficulty in finding an alternative work. On the whole, the claimant succeeds in terms of his relief 1 only. In that regard, it is my order that – 1. Within 30 days of this judgment, the defendant shall pay to the claimant all his salaries, allowances and all other benefits as are due to him for the period 30th May 2013 to 22nd February 2015 less the sum of Nine Million, One Hundred and Forty-Two Thousand, Seven Hundred and Thirty-One Naira, Seventy-Eight Kobo (N9,142,731.78k) the claimant acknowledged receiving vide Exhibit C10. 2. Cost of this suit is put at Fifty Thousand Naira (N50,000) only payable within 30 days of this judgment by the defendant to the claimant. 3. Failure to pay the sums as ordered in this judgment will attract interest at 10% per annum. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD