Salamatu B Umar Eluwa VS Hadi Sirika (Hon.Minister Of State For

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated this 21^st day of June, 2018

SUIT NO: NICN/ABJ/71/2018

BETWEEN:

Salamatu B Umar Eluwa

Claimant

AND

Hadi Sirika (Hon.Minister Of State For Aviation)
Permanent Secretary, Federal Ministry Of Transportation
Head Of Civil Service Of The Federation

Defendants

Representation

Chief J.S. Okutepa with Chief Ogwu Onoja SAN, M.A. Ebute, Onu S. Achem and Ibrahim George for the Claimant.

Seun Oriowo for the 1^st and 2^nd Defendant.

David Agbonifo for the 3^rd Defendant.

JUDGMENT

This suit was commenced by way of originating summons with the amended copy filed on the 3^rd of May, 2018. Arising therefrom, the Claimant raised the following questions for the determination of this court:

Whether having regards to extant Rules or Law, namely Guide to Administrative Procedures in the Federal Civil Service, Public Service Rules and Federal Airports Authority Act, Cap F5 LFN 2004, the 1^st Defendant can carry out any inter Agency posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).
Whether the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st defendant is not invalid, null and void and liable to be set aside.
Whether the 1^st defendant is not bound by the recommendations and directive to reverse the positing/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).

Upon answering the above questions, the Claimant seeks the following reliefs:

A DECLARATION that under the extant rules and laws, the 1^st defendant lacks power to carry out any inter agency posting including the posting of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).
A DECLARATION that the purported positing/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st defendant is unknown to law.
A DECLARATION that the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the defendant is invalid, unlawful, null and void and of no effect whatsoever.
A DECLARATION that the Claimant is entitled to an apology from the 1^st defendant for the wrongful/unlawful posting.
AN ORDER setting aside the purported posting of the Claimant by the 1^st Defendant.
AN ORDER directing that the Claimant be allowed to resume her office as Director, Human Resources and Administration at Federal Airports Authority of Nigeria (FAAN).
AN ORDER directing the 1st defendant to tender an apology to the Claimant for the wrongful posting.
AN ORDER for the payment of all arrears of salaries, allowances and other emoluments of the Claimant since August 2017 till date of Judgment and continuing thereafter.
AN ORDER of perpetual injunction restraining the 1st and 2nd Defendants from posting the Claimant outside Federal Airports Authority of Nigeria.
N200,000,000.00 general damages.

In support of the Originating summons, the Claimant filed a 39 paragraph affidavit deposed to by Salamatu B. Umar-Eluma, several exhibits and a written address.

In reaction to the Originating Summons, the 1^st and 2^nd Defendants on the 10^th of May, 2018, filed a 10 paragraphs counter affidavit deposed to by Faith Ibraye and a written address.

The third Defendant on their part entered conditional appearance and filed on the 14^th May, 2018, a 5 paragraphs counter affidavit deposed to by one Ogonor Elemchi and a written address.

Originally, there was a 4^th Defendant, which the Claimant sought leave of this court to be struck out and same was granted.

Upon receiving the counter affidavits and written addresses of the Defendants, the Claimant on the 18^th of May, 2018 filed a 33 paragraphs further affidavit and a reply on point of law.

In addressing the questions for determination, the Learned SAN, J.S. Okutepa as counsel to the Claimant raised three issues for determination to wit:

Whether having regards to extant Rules or Law, namely Guide to Administrative Procedures in the Federal Civil Service, Public Service Rules and Federal Airport Authority Act, Cap F5 LFN 2004, the 1^st Defendant can carry out any inter Agency postings/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).
Whether the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st Defendant is not invalid, null and void and liable to be set aside.
Whether the 1^st Defendant is not bound by the recommendations and directives to reverse the posting/transfer of the Plaintiff from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).

The learned SAN opted to argue all the issues jointly and in doing so, submitted that the substratum of the instant case is that the 1^st defendant is a political appointee whose powers do not include transfer/posting of civil servants, much less embarking on inter Agency/Parastatals. He added in this regard that in order to discover whether the Defendant can embark on any positing/transfer as in the instant case, it shall be necessary to resort to the provisions of the Federal Airports Authority of Nigeria (FAAN) Act Cap. F5, LFN 2004 under which the Claimant was employed.

In furtherance of that, Learned SAN submitted that throughout the length and breadth of the said Act, there is no provision therein whatsoever that cloths the 1^st defendant with the power to transfer/post an employee of Federal Airports Authority of Nigeria (FAAN) let alone do an inter-agency or Parastatals transfer/posting to Accident Investigation Bureau (AIB). He added that even a resort to the Civil Aviation Act 2006, Section 29 Of which established AIB, does not help the 1st defendant and there is equally no provision whatsoever therein contained that empowers the 1^st defendant to transfer or post the Claimant or any employee of FAAN to AIB or vice versa.

Learned SAN argued that should there be any legal basis or justification, the burden rests squarely on the 1^st defendant to justify same, otherwise judgment will be given against him and in favour of the Claimant. He cited Section 133 – 135 of the Evidence Act, Cap E14, LFN 2011; Amasike v. Registrar General, Corporate Affairs Commission (2010) ALL FWLR (Pt. 241)1406 at 1488 and Psychiatric Hospital Management Board v. Ejitapha (2000) II NWLR (Pt. 677) 154.

Learned SAN also referred this court to Article 3.9 Chapter 7 of the Guides to Administrative Procedures in the Federal Public Service and posited that the Guide contains provisions relating to the extent to which Ministries or Ministers can interfere in personnel matters of parastatals under their auspices, watch or supervision. He argued that in contravention of the provision of the said Article 3, the Defendant rather than avoid or resist the temptation of treating parastatals as if they are normal departments within the ministry, fell into it.

Learned SAN submitted that Federal Airports Authority of Nigeria (FAAN) is certainly not a department within the Ministry controlled by the 1^st Defendant as it is a statutory body established by its enabling law, FAAN Act (supra). Therefore, the 1st Defendant cannot post or redeploy the Claimant or any employee or staff of FAAN to any other establishment. He cited the case of Orakul Resources Limited vs. Nigerian Communications Commission (2007) ALL FWLR (Pt. 390)1482.

Learned SAN further added that since the Claimant did not apply to Accident Investigation Bureau (AIB) for employment nor did the AIB apply for the services of the Claimant by way of secondment and neither is the 1^st defendant posting the Claimant to AIB on secondment then the action of the 1^st defendant in purporting to post or transfer the Claimant to AIB is tantamount to placing something on nothing and expecting it to stand. It will certainly collapse. He cited the case of Macfoy v. UAC (1952) AC 62.

Learned SAN concluded by urging this Honourable Court to resolve the issues in favour of the Claimant.

By way of reaction, the Counsel to the 1^st and 2^nd Defendant, Seun Oriowo, through the written address in support of the Counter affidavit in opposition to the originating summons adopted the issues formulated by the learned SAN and added one more issue to wit:

Whether the failure of the Claimant to follow and exhaust the Public Service Rules procedure of petitioning by a public officer against a decision affecting him/her before commencing this action will not render this suit invalid and incompetent.

In addressing the three issues raised by the learned SAN, learned counsel to the 1^st and 2^nd Defendant submitted that the 1^st and 2^nd Defendants have statutory duty of control and supervision of civil aviation and other aviation allied services agencies, FAAN inclusive. And the Claimant admitted this fact in paragraph 19 of her affidavit in support. Counsel cited Sections 1, 78 (1) and (2) of the Civil Aviation Act no. 6 of 2006.

Learned counsel also contended that the Claimant was appointed not Promoted to the position of a Director Human Resources by the office of the 1^st and 2^nd Defendants, referring the Court to Exhibit EO 4 and arguing that he who has power to appoint will automatically have power to post or transfer.

Counsel also contended that assuming without conceding that it is only the Board of FAAN that has the power to post or transfer the Claimant, the 1^st and the 2^nd Defendants are members of the interim Board of FAAN, citing Section 2 (4) and paragraph 5, second schedule of the Federal Airport Authority of Nigeria Act Cap F5 LFN 2004.

Learned counsel argued also that the Guides to Administrative Procedures in the Federal Public Service document referred to by the Claimant as Exhibit D1 in paragraph 19 of the affidavit in support is neither law nor regulations in the Public Service. Therefore, the breach or violation of its provision cannot render the Defendant`s act void.

Counsel also maintained that the Claimant is at liberty to challenge the 1^st Defendant decision as it affects her. However to do that, the Public Service Rules has provided how the Claimant can go about it and he cited RULE 090203 and RULE 090101 of the Public Service Rules to posit that no recommendation by any organ can override the Rules.

On the 4^th issue formulated by learned counsel, he argued that contrary to the provisions of the Public Service Rules 2008 which require an officer to channel his petition through his superior or permanent secretary/ head of his agency, the Claimant petitioned several other bodies, and organs of Government seeking for reversal of her posting/transfer to AIB.

Counsel restated the above Rules and submitted that the Claimant has never followed nor exhausted the administrative avenues and channel as provided by the Public Service Rules. He maintained that by this reason, this suit as commenced by the Claimant is premature, incompetent, invalid, null and void and ought to be dismissed. He cited the case of Orakul Resources Limited Vs Nigeria Communications Commission (2007) ALL FWLR (Pt 390) 1482 at 1506.

Counsel urged the Court to resolve the issues in favour of the 1^st and 2^nd Defendants and that the suit be dismissed in its entirety with substantial costs.

The learned Counsel to the 3^rd Defendant, David Agbonifo on his part, through the written address in support of the counter affidavit filed in opposition to the originating summons, raised three issues for determination to wit:

Whether the Claimant’s case as presently constituted in this suit discloses any reasonable cause of action against the 3^rdDefendant?
Whether the 3^rdDefendant is a necessary party to this action?

iii. Whether the condition precedent to the constitution of this matter and it competence for adjudication with respect to parties have been satisfied by the Claimant’s case?

learned counsel opted to argue all three issues together and in that regard, submitted on behalf of the 3^rd Defendant that, the Claimant’s case discloses no reasonable cause as required by law against the 3^rd Defendant to make the latter a necessary party to this action.

Counsel submitted that a reasonable cause of action consists of two fundamental elements which the law expects the Claimant’s case to establish simultaneously side by side and they are:

The wrongful act of the Defendant(s) sued and
The consequent damage arising from the wrongful act.

Counsel in this regard cited the case of ALHAJI AMINU IBRAHIM Vs FELEX OSIM (1988) 3 NWLR (PART82) PAGES 257 at 260 and DIM CHUKWU EMEKA ODUMEGWU OJUKWU Vs ALH. UMARU MUSA YAR’ ADUA & 4 others (2009) 28 N.S.C.Q.R (PART 1) 492 AT 565.

Counsel further submitted that from the totality of the Claimant’s Processes filled in this matter before this Honourable Court, there is no wrongful act of the 3^rd Defendant shown and the Claimant pleadings have not equally shown any damage arising from any wrongful act of the 3^rd Defendant.

To cut it short, Learned counsel wants this court to strike out the name of the 3^rd Defendant from this suit on ground that this suit can be effectually and effectively determined without the presence of the 3^rd Defendant and the reliefs being claimed by the Claimant can be adequately determined by this Honourable Court without the presence of the 3rd Party in this matter.

I should state at this point that the 1^st and 2^nd Defendant via the counter affidavit in opposition to the originating summons, raised the issue that this suit is statute barred on the basis that the cause of action being the posting/transfer of the Claimant to AIB being challenged in this suit occurred on the 18^th August, 2017 and the Claimant commenced this suit on the 14^th March, 2018 to challenge same after the expiration of more than Six (6) Months from the date the cause of action arose. In addressing this issue of limitation, the written address filed in support of a withdrawn notice of preliminary objection shall be taken into consideration as the withdrawal was done without prejudice to the written address.

Learned SAN, J.S. Okutepa, as counsel to the Claimant in his reply did not react to the issues raised and addressed by counsel to the 3^rd Defendant. He merely replied the counsel to the 1^st and 2^nd Defendant on the argument canvassed in his written address in opposition of the originating summons and also the issue of the suit being statute barred.

With respect to the four issues addressed by counsel to the 1^st and 2^nd Defendant, Learned SAN argued that point at hand is not whether the 1st and 2d Defendants have duty of control or not but whether a transfer of an employee could be made from one agency to another. He argued that the Civil Aviation Act of 2006 which establishes the AIB is a law on its own and the same goes for the Federal Airports Authority of Nigeria Act, 2004 which establishes FAAN. That both legislations are independent and so one cannot lord itself over the other.

Learned SAN added that the powers of the 1^st and 2^nd Defendants are statutorily regulated and if they fail to exercise such powers based on the enabling statute or law, their power will be ultra vires having been done without the backing of the law. He cited the case of Ismaila Lasisi v. State (2013) 12 NWLR (Pt. 1367)133 on the meaning of nullity.

Learned SAN further added that Section 1 as well as Section 78 (i) of the Civil Aviation Act cited by the defendants to back their submission are totally irrelevant, inapplicable and inappropriate.

Learned SAN cited UAC v Mcfoy (1961) 3 All ER 1169 to reiterate that assuming without conceding that the 1^st and 2^nd Defendants constitute the Board of FAAN, the Board does not have the powers under the FAAN Act, to transfer a staff outside FAAN to another agency. Learned SAN further referred this Court to Section 10 (1) and (4) of the FAAN Act in relation to how to fill the vacancy in FAAN stating that the provision does not cover transfer to another agency. He argued that the express mention of one thing precludes the operation of another. Citing the case of CPC V. INEC (2012) 1 NWLR (Pt. 1280) 106 at 125- 126 Paras. G-B and SEC V. KASUMU (2009) 10 NWLR (Pt. 1150) 509.

With regards to the Public Service Rules, Learned SAN argued that the Rule is not mandatory and cannot deny anyone access to court. Moreover, the provision under reference and even the Public Service Rules is inferior to the 1999 Constitution of Nigeria. He cited the case of FRN V. DARIYE (2011)13 NWLR (Pt. 1265) 521 at 545 paras. B-G. he concluded urging the court to hold that the court has the competence and powers to hear this case.

I shall now turn to consider the issue of this suit being statute barred which the 1^st and 2^nd Defendant raised via the counter affidavit in opposition to the originating summons.

Arising from paragraphs 8 and 9 of the said counter affidavit, it is deposed as follows:

That the posting/ transfer of the Claimant to AIB being challenged in this suit occurred on the 18^thAugust, 2017 and the Claimant commenced this suit on the 14^thMarch, 2018 to challenge same after the expiration of more than Six (6) Months from the date the cause of action arose.

That a law suit against the 1^stand 2^ndDefendants acts or omissions allegedly committed in the course of duty such as being alleged by the Claimant in this suit, must commence within three (3) months from the date the cause of action arose; failing which, the Claimant`s suit against the 1^st and 2^nd Defendants becomes statute barred by operation of law with resultant effects of loss of action, loss of right of enforcement and loss of judicial relief with the residue of a non-enforcement claim.

In arguing on the assertion that the suit is statute barred, learned Counsel to the Claimant, Seun Oriowo, contended that the period of limitation starts running from the date the cause of action accrues. He cited the case of Egbe V. Adefarasin (1987) 18 NSCC (pt.1) at p. 17.

Learned Counsel added that a perusal at the affidavit in support of the Originating Summons particularly paragraph 13 shows that the letter of posting/transfer leading to this present suit was dated 18^th August, 2017. Therefore, flowing from the above decision of the apex Court, it is humbly submitted that the purported cause of action accrued on the 18^th of August, 2017 when the Claimant received her letter of transfer.

Counsel then cited the case of IBRAHIM v. JSC 14 NWLR (pt 584) at 582 – 583, where the Supreme Court defined “public officer” and posited that the Defendants are such.

Counsel further cited Section 2(a) of the Public Officer Protection Act CAP P41 LFN 2004 and argued that being public officers, the law is sacrosanct that any action or suit instituted against the 1^ST AND 2^ND Defendants must be filed in Court within three months of the accrual of the cause of action; That from 18^th August, 2017 to 14^th March, 2018 the year this suit was instituted as per the Originating Summons is about six months which is clearly far outside the period provided by the Limitation Law.

Upon citing the cases of Chartered Bram Ltd V. Intercity Bank Plc (2009) 15 NWLR (pt 1165) 445 and SULGRAVE HOLDINGS INC V. FGN & 3 ORS (2012) 17 NWLR (PT 1329) @ 319 counsel concluded by urging this court to dismiss the suit having been statute barred and caught up by the Public Officers Protection Act with the substantial cost against the Claimant.

In reaction to this issue, Learned SAN via the reply on point of law filed in response to the counter affidavit and written address in opposition to the originating summons argued that the 1^st and 2^nd Defendants acted ultra vires the scope of their powers when they purportedly transferred the claimant from the Federal Airports of Nigeria (FAAN) to the Accident Investigation Bureau (AIB).

Learned SAN argued further that it has been decided in plethora of decided cases that when a Public Officer illegally acts outside the scope of his authority or powers, such a public officer does not enjoy the cover or protection of Public Officers Protection Act. He cited the case of Kwara State Pilgrims Welfare Board V. Alh. Jimoh Baba (2018) LPELR 439; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 591 and N. l.C vs. Aminu (2012) 8 NWLR (Pt. 1302) 330 @355, paras. C-D.

Learned SAN contended that since the Defendants had argued that the Claimant has not exhausted internal procedure laid down by the Public Service Rules, he cannot at the same time argue that the suit is statute barred. He cited Ugwuanyi v. Nicon Insurance Plc (2013) 11 NWLR(Pt. 1366) 546 @ 585 para. A.

Learned SAN urged the court to discountenance the entire submission as well as the authorities relied upon by the Defendants for being totally irrelevant and inapplicable and grant the reliefs claimed by the claimant.

Upon a careful consideration of all the processes filed in this suit, the totality of the issues raised in the written addresses in support and in opposition of the Originating Summons in view of the questions for determination and the submissions made in furtherance and opposition of same, I find that the the issues for determination by this court are to wit:

Whether or not this suit is statute barred considering the circumstances of the case.
Whether having regards to extant Rules or Law, namely: Federal Airport Authority of Nigeria Act, Cap F5 LFN 2004, Civil Aviation Act 2006, Guide to Administrative Procedures in the Federal Public Service and the Public Service Rules, the 1^st Defendant can carry out any inter-Agency postings/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB.)

Considering the cause of action in this suit and the turn of argument canvassed over whether this suit is statute barred, I find it desirable to address the above issues in reverse order. However, Before taking on the issues, it is expedient to foremost pronounce on the status of the 3^rd Defendant in relation to this suit considering the contention of learned counsel, David Agbonifo, that the 3^rd Defendant is not necessary for the determination of this suit.

While there is no address in response by the Clamant, I should start by correcting the impression of learned counsel that there are clearly separate principles guiding the determination of who are parties to a suit and the cause of action in a suit. also, a party before the court need not be the one who commits a wrong before he can be sued. This is because there are various categories of parties that can sue or be sued before the court. See Green v. Green (1987) 3 N.W.L.R. 481.

In the same vein, the court in ABUBAKAR DUDU MOTORS & ANOR v.KACHIA (2016) LPELR-40228(CA) held thus:

“…who is a proper, or desirable or necessary party who ought to be joined for the effective and effectual determination of a dispute in a case or suit. In Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that, proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. Green v. Green (1987) 3 NWLR (Pt. 61) 480. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom, the whole claim cannot be effectually and completely determined. “Per BDLIYA, J.C.A. (Pp. 10-11)

Going by the above authorities, I have taken a look at the affidavit in support of the Originating Summons, and found that the 3^rd Defendant is the Head of the Civil Service of the Federation appointed by the President to superintend the entire Public Service of the Federation in line with laid down Rules, Guidelines and Extant Circulars of Government While the Claimant stated that by reason of her employment she became a public servant covered by the provisions of the Public Service Rules and extant Guidelines and Circulars of the Federal Government. (see para. 5 and 10 of affidavit in support of originating summons).

There is no gainsaying that the questions before this court has to do with the employment of the Claimant as a ‘public servant’ under the public/civil service which the 3^rd Defendant superintends. Therefore, it is proper for the 3^rd Defendant to be in this suit not just for good reasons but to also be bound by the outcome of the suit.

In order not to dissipate more than necessary time on this issue, I hold that the 3^rd defendant is a proper party before this court and therefore refuse the prayer of the 3^rd Defendant to have the name struck out of this suit.

I then proceed to the issues proper by first addressing issue two which is an adoption of one of the issues formulated by the Learned SAN. I find the issue sufficient in dealing with the questions for determination, however, with slight but necessary moderations. For the sake of refreshing the memory, the said issue is:

“Whether having regards to extant Rules or Law, namely: Federal Airport Authority of Nigeria Act, Cap F5 LFN 2004, Civil Aviation Act 2006, Guide to Administrative Procedures in the Federal Public Service and the Public Service Rules, the 1^st Defendant can carry out any inter-Agency postings/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB)

This issue clearly hinges on the provision of the laws in relation to an act alleged to have been carried out by the 1^st Defendant not being within the ambit of any law.

Let me start by noting that the usual situation would have been for the parties to present specific provisions of the law for this court to perhaps interpret in order to tell its effect and consequence. However, in the instant suit as gathered from the arguments of counsel to both parties i.e. the Claimant on the one hand and the 1^st and 2^nd Defendant on the other, the present situation is that the Claimant has put forward a task for the court to scan the entire provisions of two separate laws i.e. the Federal Airport Authority Act, Cap F5 LFN 2004 and then the Civil Aviation Act in order to find out whether the 1^st Defendant has such power to post/transfer the Claimant who was originally employed to work in Federal Airport Authority of Nigeria, from the said employment to Accident Investigation Bureau.

Aside from the above primary laws, the court is also invited to consider the provision of the Guide to Administrative Procedures in the Federal Public Service and the Public Service Rules, 2008.

The Learned SAN as counsel to the Claimant had contended that throughout the entire length and breadth of the Federal Airport Authority Act, Cap F5 LFN 2004 and the Civil Aviation Act, there is no provision therein which clothes the 1^st Defendant with the power to transfer/post an employee of Federal Airport Authority of Nigeria (FAAN), let alone to carry out inter-agency or parastatal transfer to Accident Investigation Bureau. This ordinarily presupposes that the court would have to go through the entire length and breadth of the said Acts. That may however be avoided if the Defendant could provide or guide this court as to the portion of the said Acts in question which empowers the Minister to carry out the inter-agency posting/transfer.

In reaction, learned counsel to the 1^st and 2^nd defendants drew the attention of this court to section 1 of the Civil Aviation Act to establish the fact that the 1^st and 2^nd Defendants have statutory duty of control of civil aviation and other aviation allied service agencies including FAAN. The said section is herein reproduced:

“The minister shall be responsible for the formulation of policies and strategies for the promotion and encouragement of Civil Aviation in Nigeria and the fostering of sound economic policies that assure the provision of efficient and safe service by air carriers and other aviation and allied service providers as well as greater access to air transport in a sustainable manner and to assist with ensuring that Nigeria’s obligations under international agreements are implemented and adhered to.

Learned Counsel further cited section 78 for the definition of ‘Allied Aviation Businesses’ and ‘Minister’.

Also, counsel cited section 2 (4) of the Federal Airport Authority of Nigeria Act, which is about vesting the Power of the Board in an interim board in the absence of a Board.

Learned counsel further cited section 2(1) and 9 (1) of the Federal Airports Authority of Nigeria Act. While section 2 has to do with membership of the board, section 9 had to do with the recommendation of the Minister to the President on appointment of the Managing Director of FAAN who would be responsible for the execution of policies and day-to-day running of FAAN.

In view of the above, it must be said that the duty of the court is to interpret the law as the court in the case of CORPORATE AFFAIRS COMMISSION v UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR-40571(CA) held that:

“My Lords, it is settled that the duty of the Court to interpret the provisions of a statute in the clear tenor of the words contained in it. In KRAUS THOMPSON ORG. v. N.I.P.S.S (2004) 17 NWLR (PT 901) 44; (2004) LPELR – 171 (SC) pp. 11 – 12, paras G – B, the Supreme Court, per TOBI, JSC held: “By the doctrine of separation of powers, it is the Constitutional function of the legislature to make laws, including amendment and revocation and our duty in the Judiciary is to interpret the amendment or revocation to achieve the intention of the legislature”

In the same case, the court stated how such interpretive enterprise should be carried on when the court held that:

“It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more. In AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 SC; (2008) LPELR – 446 (SC), MOHAMMED, JSC stated:

“It is certainly not the duty of a Judge to interpret a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct, engaged himself in morality which may be against the tenor of the statute and therefore not within his Judicial power.” Similarly, GALADIMA, JSC reiterated in AROMOLARAN v. AGORO (2014) LPELR – 24037 (SC) p. 25, paras. B – F, thus:

“I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474, WALI JSC said at page 512: “In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 41-42, Paras. C-E)

Having said that, I must say that it is crystal clear that the provisions cited by the counsel to the 1^st and 2^nd defendant have nothing to do with the power to carry out an inter-agency posting of the Claimant. The above provisions does not require dropping a sweat for the purpose of interpretation as they are clear and unambiguous.

What this means in other words is that the Defendant has not provided nor guided this court as to the portion of the said Acts in question which empowers the Minister to carry out the inter-agency posting/transfer.

That notwithstanding, I have painstakingly read the entire sections of the two Acts and as asserted by the learned SAN, first, I find that the FAAN is established under section 1 of the FAAN Act while the AIB is established under section 29 of the Civil Aviation Act. This makes both agencies completely separate Agencies created under separate laws. Secondly, I find that section 10 of the FAAN Act regulates the general provisions on staffing of FAAN and subsection (4) of the section which is in relation to secondment and transfer merely provides for where an employee from another agency/body is transferred or seconded to the FAAN when there is vacancy in FAAN. The entire section does not provide for the posting/transfer of the staff of FAAN to any other agency. Thirdly, where there would be a secondment from another agency/body into the FAAN under subsection (4), it is expected to be by way of arrangement with the other agency/body. On the whole, I find no provision in the FAAN, Act nor in the Civil Aviation Act which empowers the 1^st Defendant to carry out inter-agency posting.

While the above laws were those specifically referred to by parties to this suit, I must bring to the fore the provisions of Labour Act which by section 10 regulates the transfer of contract of employment. In this wise, I reckon that in the absence of specific provision regulating the power of the minister to carry out inter-agency transfer and the finding that the FAAN and AIB are two separate agencies, the provision of the Labour Act is apposite on the requirement for transfer of employment. The said section provides thus:

10 (1). The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authourised labour officer.

(2). Before endorsing the transfer upon the contract, the officer in question;

(a) Shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake; and

(b) If by the transfer the worker will;

(i) Change his form of employment from one which is the subject of an exemption order made under section 8(2) of this Act, or

(ii) be subject to such a change of condition as in the officer’s opinion renders such a course advisable,

may require the worker to be medically examined or re-examined, as the case may be.

In view of the facts deposed to before this court in support of the originating summons, it is clear that the Claimant who has been purportedly transferred to AIB has not consented to same and that makes the transfer contrary to the provision of Labour Act.

I am inclined at this stage to consider other rules referred to by both parties. While the learned SAN as counsel to the Claimant, referred this court to Article 3, Chapter 7 of the Guides to Administrative Procedures in the Federal Public Service.

The said provision is herein reproduced:

In their relationship with Statutory bodies, Ministers should make conscious effort and exercise great care to resist the temptation of treating parastatals as if they are normal departments within the Ministry. The relationship between the Government and each Statutory body is defined in the enabling Law as follows:

(i) the Minister may give to the Board of Directors directions of a general character or relating generally to particular matters to the statutory body with regard to the discharge of Board’s functions.

(ii) the Board can determine conditions of service of its staff after consultations with Federal Establishments Office.

(iii) the Board shall issue an annual report on its activities together with a report on its audited accounts for the year.

Learned counsel to the 1^st and 2^nd Defendant contended the above provision is purposely referring to the core operations of the management of the agency and not the appointment, posting, transfer of the management staff of the agency. Learned counsel also contended that the said guide is neither a law nor a regulation and a breach of same would not render the Defendant’s act void.

While I do agree with the Counsel that rightly so, the guide is not a law as clearly stated in the introduction of the guide, however, the guide is intended to cover those administrative procedures established by practice and precedent in the Government of the Federation, which are not necessarily laid down by Law, Public Service Rules or Financial Regulations. In this wise, I take into account the finding that there is no specific provision in the law establishing FAAN on how to transfer or post a staff to other agencies, therefore, if the Minister intends to make a transfer, he should not have treated the two separate agencies as departments within the ministry of Aviation.

Also, in respect to the rules of the Public Service Rules cited by the Counsel to the 1^st and 2^nd Defendants, I.e. RULE 090203 and RULE 090101 which provides thus:

(i) RULE 090203 of the Public Service Rules provides:-

An officer must not attempt to bring political or other outside influence to support his individual claims. If he/she is dissatisfied, his/her proper course is to make representations to his/her superior officer or permanent secretary/ Head of Extra-Ministerial office. If his/her representations are not successful, it is open to him/her to submit a formal petition to the appropriate authority under RULE 090101.

(ii) RULE 090101 provides:-

Every officer who has any representations of a public or private nature to make to the Government should address them to:-

(a) The chairman, Federal Civil Service Commission, in respect of matters relating to appointment (including acting appointments) promotion, transfer and discipline; or

(b) The Head of Civil Service of the Federation on matters relating to other conditions of service e.g. leave passages, allowances pensions, gratuities, etc.

Counsel argued that, the Claimant did not exhaust the procedure before approaching the court. In reaction, learned SAN replied that the Claimant has steps including those in Exhibit E,F and G.

In this regard, I must say that the Public Service Rules is subordinate to the Constitution which guarantees access to court by virtue of section 6 of the Constitution of Federal Republic of Nigeria 1999 (as amended).

Arising from the above, it is pertinent to state that the burden of proof in civil proceedings shifts. The court in ONIGBINDE v. S.B. OLATUNJI GLOBAL NIG. LTD (2015) LPELR-25943(CA) held that:

“In civil cases the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift.” Per NDUKWE-ANYANWU, J.C.A. (Pp. 12-13, Paras. E-A)

In the instant case, While the Claimant has maintained before this court that no provision of the Acts in question empowers the 1^st Defendant to carry out inter-agency posting/transfer, having directed this court to the laws under which such provisions ought to have been found and same not being found, the burden then shifts onto the 1^st and 2^nd Defendant to prove that their act is in accordance with the provision of an Act or Law and same has not been discharged.

Consequently, I resolve issue two in favour of the Claimant to the effect that having regards to extant Rules or Law, namely; Federal Airport Authority of Nigeria Act, Cap F5 LFN 2004, Civil Aviation Act 2006, Guide to Administrative Procedures in the Federal Public Service and the Public Service Rules, the 1^st Defendant is not empowered by the provisions of the enabling laws or extant laws to carry out inter-Agency posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).

With regards to issue one, which is in respect of a limitation law, it is ideal to first consider the limitation law in question as referred to by counsel to 1^st and 2^nd Defendants. For the purpose of clarity and ease of reference, I hereby reproduce the provision of section 2 of the Public Officers Protection Act as follows:

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –

(a) the action, prosecution, or proceeding shall not be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

The Supreme Court in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS (2015) LPELR-24736(SC) has restated the meaning and purpose of the above provision when it held that:

“The above provision is quite clear and simple. Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See Egbe v. Adefarasin & Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 891) 572, Egbaigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379.

Having said that, it is not in doubt that the parties before the court are public officers within the holding of the court in IBRAHIM v. JSC (1998) 14 NWLR (Pt. 584) at 582 – 583.

To determine whether the acts of the Public Officers in this case are covered by the Public Officers Protection Act, the court in GBADEHAN V KILADEJO (2012) 16 NWLR (Pt.1326) p.398 held that in order to determine whether or not an action is statute barred, the document to be considered are the writ of summons and statement of claim. In this case, the Originating summons and the affidavit in support. See JSF INVESTMENT LTD V BRAWAL LINE LTD (2011) ALL FWLR (PT.578) 876 AT 902; JKK LTD V GOV. LAGOS STATE (2014) 5 NWLR (PT.1399) 151.

What the court would look for in the originating summons and affidavit is also stated in the case of AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 when the court held that the yardsticks for determining whether an action is statute barred are:

The date when the cause of action accrued;
The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
The period of time prescribed to bring an action to be ascertained from the statute in question.

In view of these authorities, I have painstakingly taken a look at the affidavit in support of the originating summons and come to the conclusion that the cause of action which the Claimant is complaining about is in respect of her transfer from Federal Airports Authority of Nigeria to Accident Investigation Bureau which came via a letter dated the 18^th of August, 2018.

By paragraphs 13 and 14 of the said affidavit, the Claimant deposed that:

That while occupying the said position, the 1^stdefendant acting through the Managing Director, Federal Airports Authority of Nigeria (FAAN) by a letter dated 18^th August, 2017 purported to post/transfer me to Accident Investigation Bureau as Director Human Resources with effect from same date. The letter is herewith annexed as Exhibit D.
That I know as a public servant that my purported posting/transfer aforesaid amounted to an Inter-Agency Posting which is illegal and unlawful under the public service rules and lacks the support of the enabling Acts.

Arising from the above, there is no doubt that the cause of action accrued on the 18^th of August 2017 while arising from the face of the originating summons, this suit was instituted on the 3^rd of May, 2018. That is, over 8 months and 15 days after the cause of action accrued.

The statute of limitation in question provides for three months within which actions must be instituted against public officers for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority.

While on a general note, this suit is commenced outside the statutorily prescribed limitation period, the Learned SAN, J.S. Okutepa as Counsel to the Claimant, argued that this suit falls under the exception as the Defendants have acted outside the scope of their powers when they purportedly transferred the Claimant from FAAN to AIB. The learned SAN cited the cases of Kwara State Pilgrims Welfare Board V. Alh. Jimoh Baba (2018) LPELR 439; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 591 and N. l.C vs. Aminu (2012) 8 NWLR (Pt. 1302) 330 @355, paras. C-D.

I have taken due regard to the authorities particularly that of Kwara State Pilgrims Welfare Board V. Alh. Jimoh Baba (supra) which fact is clearly distinguishable from the facts of the present suit, the former being in respect of fraud and unlawful retention of monies while the present suit is in respect to inter-agency transfer.

That notwithstanding, the court in NIGERIA STORED PRODUCTS RESEARCH INSTITUTE v. BOARD OF INTERNAL REVENUE, KWARA STATE (2013) LPELR-22073(CA) authoritatively held that:

“the preponderance of judicial authorities on the matter of limitation law or Act is that there are recognized exceptions to the general coverage or protection allowed to the person or authority. Thus it must be established that:

(a) The person against whom the action is commenced is a public officer or a person acting in the execution of a public duty;

(b) The act done that has necessitated the commencement of the action is in pursuance or execution of any law, public duty or authority.

In Ibrahim v. JSC (supra), Iguh, JSC stated at page 32 the circumstances in which Public Officers or authorities are covered by the limitation law. He said, “It can therefore be said that section 2(a) of the Public officers (protection) Law 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of that law.

Thus where a public officer acts outside his public duty or outside the colour of his office, a person who has been affected by an act of such a public officer may institute an action in that regard even after the expiration of the limitation period.

In Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2012) 6-7 MJSC (Pt. 111) 149, the Supreme Court stated at pages 181 – 182 that the Public officers (protection) Act is never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice as a result of which the Act has prescribed two “most important exceptions” as follows:

“First, in case of continuance of damage or injury the Act – permits action to be brought on the expiration thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit. See Nwankwere v. Adewumi (1967) NWLR 45 at 49; Anozie v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1095) 278 at 290 – 291”.

Going by the above, I have perused the facts deposed by the Claimant in the affidavit in support of the Originating summons wherein the Claimant stated that:

That I know as a fact that Federal Airports Authority of Nigeria (FAAN) and Accident Investigation Bureau (AIB) are two separate and distinct Federal Government Agencies established by different and Autonomous Acts of Parliament.
That while Federal Airports Authority of Nigeria (FAAN) was established by FAAN Act Cap. F5 LFN 2004, AIB was established by the Civil Aviation Act 2006.
That I know as a fact that there is no provision in the said two (2) laws or any other law that empowers the 1^stdefendant or anybody whatsoever to post or transfer an officer from any of the Agencies to the other.
That I know as a fact that all Ministers and Permanent Secretaries of the Federal Government are expected to respect Government Guidelines in the extant Rules and Regulations concerning the limit which they can interfere in the Personnel matters of Parastatals and Agencies of Government established by Acts of Parliament but put under their administrative supervision.

These facts, particularly paragraphs 16 and 17 suggests that the 1^st Defendant had carried out the posting which occurred on the 18^th of August, 2017 without legal jurisdiction. Upon such deposition, it is incumbent on the Defendant to prove that the act of posting from one agency to another is within the legal jurisdiction of the 1^st Defendant therefore acting within the scope of authority.

I have perused the counter affidavit of the 1^st and 2^nd Defendant and find that the 1^st Defendant has not stated under what law or rule such inter agency posting/transfer was carried out by the 1^st Defendant. By paragraph 9 (i), the deponent merely stated thus:

“That the 1^st and 2^nd Defendants do lawfully appoint, transfer and post officers to aviation industry agencies to assist them in carrying out their control and supervision responsibility”.

Going by the above, I must then reiterate that the provision of section 2 (a) of the Public Officers Protection Act would apply where the public officer is acting or acted pursuant to or in execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority.

I have perused the said Federal Airport Authority Act and Civil Aviation Act and cannot find under which Act the 1^st Defendant acted.

Consequently, it is the holding of this Court that the act of the 1^st Defendant, having not been brought under any Act or Law, is ultra vires and falls outside the scope of the Public Officers Protection Act and therefore this suit is not statute barred. Issue one is also therefore resolved in favour of the Claimant.

Consequent upon the above resolutions, I find it apposite to answer the question raised by this originating summons as follows:

that having regards to extant Rules or Law, namely Guide to Administrative Procedures in the Federal Civil Service, Public Service Rules and Federal Airport Authority of Nigeria Act, Cap F5 LFN 2004, the 1^st Defendant cannot carry out any inter Agency postings/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).
that the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st Defendant is invalid, null and void and liable to be set aside by the Honourable Court.
that the 1^st Defendant is bound by the recommendations and directives of the appropriate agencies of government to reverse the illegal posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).

On the basis of the foregoing, I then turn to the reliefs sought by the Claimant.

Reliefs a,b,c which are declaratory are dependent on the above resolution are hereby granted. The said reliefs read thus:

A DECLARATION that under the extant rules and law, the 1^st Defendant lacks power to carry out any inter agency posting including the posting of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB).

A DECLARATION that the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st Defendant is illegal and unknown to law.

A DECLARATION that the purported posting/transfer of the Claimant from Federal Airports Authority of Nigeria (FAAN) to Accident Investigation Bureau (AIB) by the 1^st Defendant is invalid, null and void and of no effect whatsoever.

Going further, I shall take Relief (d) and (g) owing to the fact that relief (g) is dependent on (d). the said reliefs read thus:

(d)A DECLARATION that the Claimant is entitled to an apology from the 1^st and 2^nd Defendants for the wrongful/unlawful transfer/posting.

(g) AN ORDER directing the 1^st and 2^nd Defendants to tender written apology to the Plaintiff for the wrongful posting/transfer”

It is manifest that relief (d) is also declaratory however, the circumstances warranting an apology has not been proved by the Claimant. The court in OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that:

”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).

The burden is on the Claimant to adduce cogent, relevant, and admissible evidence in support of any claim in order to be entitled to the grant of same.

The Claimant has not placed any positive and cogent evidence before this court to warrant the declaration sought in relief (d) and the consequent order in relief (g). I therefore have no hesitation in refusing these reliefs and I so do.

Relief (e) and (f) are orders sought consequent upon the declarations made in reliefs (a), (b) and (c) and same are hereby granted. The reliefs are:

(e) AN ORDER setting aside the purported transfer/posting of the Claimant by the 1^st Defendant.

(f) AN ORDER directing that the Claimant be allowed to resume her office as Director Human Resources and admin at Federal Airports Authority of Nigeria (FAAN).

With regards to Relief (h), I must state that the Claimant has not specifically stated the amount of her salary, however, it must be categorically stated that the employment before the court is one with statutory flavour and upon the inter-agency posting/transfer of the Claimant having been declared invalid, null and void, it is as if the Claimant never left her post of employment with FAAN.

In the case of KWARA STATE POLYTECHNIC, ILORIN & ORS. v. MR. A. O. OYEBANJI (2007) LPELR-11829(CA) the court quoted the holding of Uwaifo JCA (as he then was) in NNOLI v. UNTH MANAGEMENT BOARD (1994) 13 KLR (PT. 25) 1613 where his Lordship held that:

“A look at the reliefs sought by the plaintiff reveals that they are for declarations that the retirement was invalid, that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void, that is to say that the decision retiring her from the services of UNTH was declared to be no decision, it is as if she was never retired from her services. The Plaintiff’s contract of employment was in the circumstances of this case unilaterally repudiated by Defendants. She refused to accept repudiation in the prompt manner she wrote to the Defendants to this effect. There is nothing standing on her way to have her job or office back with all the attendant rights privileges and benefits. In other words, she is entitled to be restored to her status quo ante.”

In the circumstance of this case where it is found that the contract of employment is guided by statute, the Claimant is entitled to a consequential relief of reinstatement to her status quo ante i.e. the post held by her and payment of her outstanding salary from the time her employment was unlawfully interrupted arising from the wrongful transfer/posting. See OLANIYAN vs. UNIVERSITY OF LAGOS (supra); OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807.

Consequently, relief (h) is granted to the effect that the court makes:

“AN ORDER for the payment of all arrears of salaries, allowances and other emoluments of the Claimant since August 2017 till date of Judgment and same be made within 30 days of this judgment”.

Relief (i) is also needless having declared the posting/transfer null and void. The Claimant has failed to show the existence of a legal right worth protecting by an order of perpetual injunction being sought. Same is hereby refused.

With regards to relief (j) which is N200, 000,000.00 general damages, the court in Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445 while defining general damages said:

“it is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The principle of ubi jus ibi remedium will apply here – there is no wrong without a remedy.” Per Onu JCA.

Considering the fact that all the questions raised have been answered in favour of the Claimant and leading to the conclusion that the inter-agency posting/transfer is invalid, the Claimant is considered to have suffered a wrong and deserves a remedy. In that light, relief (j) is granted to the extent that a general damages of N2,000,000.00 is awarded in favour of the Claimant and against the Defendant to be paid within 60 days from today.

Judgment is entered accordingly.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.