Judgment: Industrial Court Sets Aside Transfer/Posting Letter, Orders Minister of State For Aviation To Pay 2Million Naira General Damages Within 60 Days National Industrial Court of Nigeria

Judgment: Industrial Court Sets Aside Transfer/Posting Letter, Orders Minister of State For Aviation To Pay 2Million Naira General Damages Within 60 Days

1374 Thursday 21st June 2018

Abuja---His Lordship, Hon. Justice Zaynab M. Bashir of the National Industrial Court of Nigeria, sitting in Abuja on Thusday 21st June 2018 in a landmark Judgment set aside the purported transfer/posting of the Salamatu B Umar Eluwa (Claimant) to Accident Investigation Bureau by Hadi Sirika (Hon. Minister Of State For Aviation) that no provision in the FAAN, Act nor in the Civil Aviation Act empowers the 1^st Defendant to carry out inter-agency posting.

The court also granted 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) and also awarded payment N2,000,000.00 for general damages in favour of the Claimant and against the Defendant to be paid within 60 days from today.

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 sought among others 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). Likewise, 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 and 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.

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.

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.

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.

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, 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.

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.

After reviewing the argument, processes filed and the submissions of learned Counsel for both parties, the Court Presided by Hon. Justice Zaynab M. Bashir expressed thus;

“…I have painstakingly read the entire sections of the two Acts and as asserted by the learned SAN, 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.

"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.

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).

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.

“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 that light, relief 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.

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