MR. REUBEN MICHAEL -VS- INSPECTOR GENERAL OF POLICE & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

DATE: 30^TH OCTOBER, 2019

SUIT NO: NICN/UY/16/2017

BETWEEN:

REUBEN MICHAEL CLAIMANT

AND

INSPECTOR GENERAL OF POLICE
POLICE SERVICE COMMISSION DEFENDANTS

REPRESENTATION:

Edidiong I. Ekong for the Claimant.

No Representation for the Defendants.

JUDGMENT

The Claimant filed this action on 20^th July, 2017 vide a Complaint accompanied by the Statement of Facts, List of Witness, Witness Statement on Oath and List of Documents claiming against the defendant the following reliefs:

a)A declaration that the claimant’s academic qualification, namely B.SC (Ed) Second Class Honours (Lower Division) dated 4^th day of April, 2011 was obtained in furtherance of claimant’s academic pursuit upon approval by the 1^st defendant for the claimant to embark on study leave without pay.

b)An order on the defendants to recognize claimant’s academic qualification, namely, BSC (Ed) Second Class Honours (Lower Division) as valid.

c)An order that the Claimant be promoted/upgraded to the rank of Assistant Superintendent of Police (ASP) II with effect from 2011, by the Defendants.

d)A declaration that the Claimant is due for further promotions between 2011 to 2018.

e)An order that the defendants should further promote the Claimant to the rank of Superintendent of Police (SP), a rank he would have attained if he was promoted to the rank of Assistant Superintendent of Police (ASP) II in 2011 and pay the claimant all his financial entitlements and benefits in recognition of claimant’s academic qualification and ranks aforesaid.

The defendants did not enter any formal appearance, file any defence and did not make any legal representation throughout the hearing of this case in spite of been put on notice at every turn. The only semblance of legal representation was when one Okokon Udo filed a Preliminary Objection on 8^th March, 2018 that the suit was statute barred. The Preliminary objection was however dismissed on 27^th March, 2019 on the authority of the recent Supreme Court case of National Revenue Mobilization Allocation and Fiscal Commission & Ors v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247 at 271. It was against this background that the Claimant applied and was granted an order setting down the matter for prove pursuant to Order 35, Rule 6 (2) of the rules of this court.

At the trial, the Claimant testified for himself as CW on 17^th January, 2018 and 27^th May, 2019 and tendered twenty-two (22) documents as Exhibits as follows:

1.	Nigeria Police Force Attestation Form.	–	Exhibit CW 1
2.	Application Letter for Study Leave dated 29^th March, 2005.	–	Exhibit CW 2
3.	Wireless Message approving Study Leave without Pay dated the 18^th day of October, 2005.	–	Exhibit CW 3
4.	Notification of Degree Result from University of Uyo dated the 2^nd day of March, 2012.	–	Exhibit CW 4
5.	Application to Resume Duty after Study Leave of four years dated the 15^th December, 2008.	–	Exhibit CW 5
6.	Copy of Police Wireless Message for Resumption of Duty dated the 9^th day of February, 2009.	–	Exhibit CW 6
7.	University of Uyo Certificate dated 4^th April, 2011.	–	Exhibit CW 7
8.	Application for Upgrading to the Rank of Assistant Superintendent of Police dated 16^th April, 2012.	–	Exhibit CW 8
9.	Police Wireless Message ref. DTO311540/05/2012.	–	Exhibit CW 9
10.	Confirmation Letter on ASCON Examination dated 11^th June, 2012.	–	Exhibit CW 10
11.	Police Wireless Message Ref. DTO/051000/11/2012	–	Exhibit CW 11
12.	Second Confirmation Statement in response to exhibit CW 11 dated 27^th November, 2012 – Police Wireless Message Ref. DTO:201131/02/2014.	–	Exhibit CW 13
13.	Covering Letter in Re: Application for Upgrade dated the 8^th day of April, 2014.	–	Exhibit CW 14A
14.	Application for Upgrade dated 7^th April, 2014.	–	Exhibit CW 14B
15.	Solicitor’s Letter dated 13^th October, 2014.	–	Exhibit CW 15
16.	Letter dated 15^th December, 2014 in Re: Application for Upgrade to the Rank of ASP 11.	–	Exhibit CW 16
17.	Document captioned “ASCON ASP Course Akwa Ibom State Command Aptitude Test Sheet”.	–	Exhibit CW 17
18.	Covering Letter by Abel Silas dated 11^th April, 2016.	–	Exhibit CW 18A
19.	Claimant’s Letter dated 5^th April, 2016.	–	Exhibit CW 18B
20.	Claimant’s Solicitors Letter dated 7^th February, 2017.	–	Exhibit CW 19
21.	Force Orders and Force Administrative Instructions Booklet.	–	Exhibit CW 20
22.	Police Service Rules.	–	Exhibit CW 21
23.	Circular Guideline for Study Leave with Pay and Without Pay dated 4^th April, 2012.	–	Exhibit CW 22

At the close of trial, the Claimant filed his final written address on 5^th July, 2019.

The Case of the Claimant

The Claimant who was enlisted in the Nigeria Police Force on 1^st March, 2001 as a Police Constable and is currently a Police Inspector with force number 370054 serving in ‘B’ Department, Workshop/Transport of the Nigeria Police, Akwa Ibom State Police Command, Uyo.

The Claimant applied and was granted Study Leave of four years without pay to study Automobile/Metal Technology in the Department of Vocational Education in University of Uyo from 1^st April, 2005 to 2008. Upon successful completion of his course and being awarded the degree of Bachelor of Science (ED) with Second Class Honours (Lower Division), the Claimant by a letter dated 15^th December, 2008 applied to the 1^st defendant to resume duty which was approved by a letter dated 9^th February, 2009. Having resumed work with the Defendants and armed with his degree certificate, the Claimant by a letter dated 16^th April, 2012 applied to the 1^st defendant to be upgraded to the rank of Assistant Superintendent of Police (ASP) commensurate to his newly acquired qualification. Upon the receipt of this application, the 1^st Defendant requested to know if the Claimant had sat for Administrative Staff College of Nigeria (ASCON) examination, to expedite action on the claimant’s application. The Claimant replied to say that ASCON examination was conducted before the notification of his successful completion of his degree course in 2^nd March, 2012. Sequel to some correspondences between the parties and the insistence of the 1^st Defendant on ASCON examination, the Claimant received a letter from the 1^st Defendant that his application for upgrade lacked merit. Thereafter, the Claimant appealed to the Defendants for redress on the 7^th April, 2014 through his Head of Department. This was in line with the Public Service Rules 2009. The Claimant also instructed his Solicitor to write the Defendants on the matter in the interest of justice and fairness. This was done by a letter dated 13^th October, 2014. In response to the Claimant’s solicitor’s letter, the Defendants by a letter dated 15^th December, 2014, advised the Claimant to avail himself the opportunity of ASCON Exams for his promotion to ASP 11. Pursuant to this advice, the Claimant sat and passed the ASCON examinations as in Exhibit CW 17. In spite of this, the Defendants have failed, refused or neglected to promote the Claimant to the rank of Assistant Superintendent of Police (ASP) II and pay him the financial entitlements and benefits thereto. All subsequent efforts through the Claimant and his Solicitor to make the Defendants to do otherwise proved abortive. The case of the Claimant is that by Police Force Order NO.283, and Force Administrative Instructions at page 162, he is entitled to incremental Credits for his educational qualification and promotion to the rank of Assistant Superintendent of Police II (ASP) and was due for such rank since 2011 upon completing his first degree examination and passing ASCON ASP Course. The Claimant also feels that the period of four years study leave without pay would be counted and added up to his 35 five years in service which indeed will work injustice on him. It is the further case of the Claimant that if he was upgraded to the rank of Assistant Superintendent of Police (ASP) II in 2011, he would have been a Superintendent of Police (SP) by now going by Rule 020701 of the Public Service Rules 2009 which allows for promotion to the next rank at the interval of every three years.

Claimant’s Submission:

The Claimant formulated a lone issue for determination, to wit:

Whether from the facts and circumstances of this case, the Claimant has established his case to be entitled to the reliefs sought.

The Claimant answered this in the affirmative and started by giving a theoretical definitions of the different types of study leave under the Public Service Rules, 2009 and Police Service Rules. Thereafter, he enumerated the conditions for the grant of study leave as provided for in by Rule 10024 of Chapter 10 of the Public Service Rule, 2009 as follows:

“An officer may be granted study leave with pay, study leave without pay or In-service training provided that his/her permanent secretary/Head of Extra-ministerial office certifies the following:

(i) Evidence of letter of admission

(ii) Evidence of duration of the Course

(iii) That the course is necessary to enhance the performance of the officer and to add value to the service.

(iv) That the course is relevant to the officer’s profession.”

It is the submission of the Claimant that it was after satisfying the above conditions that the Defendant approved his study leave without pay as evidenced in Exhibit CW 3.

The Claimant also posited that having embarked on study leave on the approval of the defendants and obtained his Degree certificate in that regard, and also wrote and passed ASCON ASP Examination, he is entitled to promotion or upgrade to the rank of ASP. The Claimant then began to reel out statute and instruments within his condition of service in support of this assertion:

(i) Rule 020702 (b) of chapter 2 of Public service Rules, 2009 which provides thus:

“(b) Officers shall qualify for promotion to higher grade after acquiring the skill and competence as provided in the scheme of service for the particular cadre.”

(ii) Regulation 149 Nigeria Police Regulation which provides thus:

“Promotions to the different ranks of the general Duties Branch of the force shall be made subject to the following general considerations:

(a) Fitness of the individual for the vacancy required to fill, including physical fitness, knowledge of the duties of the appointment, general capability, training, experience, and the capacity for the proper control, direction and superintendence of subordinates; and

(b) The degree of efficiency, intelligence, zeal and good conduct, hitherto displayed in the performance duties; and

(c) Seniority in rank.”

(iii) Police Force Order no. 283 which is binding by virtue of Section 47 (1) of the Police Act, 2004 which provides for incremental credits for educational qualifications in the force.

(iv) Regulation 43 (1) of the Nigeria Police regulations which provides thus:

“(1) The qualifications required of a candidate for a probationary appointment as an assistant superintendent of police (vehicle inspection officer) as follows:….

(2) Subject to the provisions of paragraph (3) of the regulation, a candidate is required to be in possession of one or more of the following certificates:

(a) City and Guilds Motor Vehicle Technicians Certificate.

(b) City and Guilds Motor Vehicle mechanics Certificate

(c) The National or the Higher National Certificate in mechanical Engineering.

(d) Membership of the institute of motor industry.

(e) Diploma in Automobile or Agricultural Engineering.

(f) Diploma of the Chelsea College.”

The Claimant also noted that as a general rule, promotion from one level or position in an organization to another is not a right but a privilege; usually expected to be earned per Kekere Ekun, JSC in Nwoye v. FAAN (2019) 5 NWLR (Pt. 1665) 193 at 218 paras B-C. but submitted that there is no general rule without exception. He distinguished the facts of the above case and the instant case and submitted that cases are decided per facts and peculiar circumstances and no case is identical to another and that each case is only authority for what it decided and nothing more citing Skye Bank Plc & Another v. Chief Moses Bolanle Akinpelu (2010) All FWLR (pt. 526) 460, Udo v. State (2016) All FWLR (pt. 840) 1179 at 1181and Abdulkareem v. L.S.G (2016) All FWLR (pt.850) 1109 at 1125. The Claimant therefore maintained that where promotion is based on agreed condition which the employee has fulfilled (as in this case), it would be a breach of agreement if the employer fails to promote the employee.

It is the Claimant’s further submission that there was a training Bond between the Claimant and the Defendants in this case in view exchange between the parties of Exhibit CW 2 (application for study leave) and CW 3 (approval for study leave) between the parties. The Claimant referred the court to the case of Overland Airways Limited v. Afolayan and Anor. (2015) 52 N.L.L.R (Pt. 174) 214 at paras F-H in which the execution of training bond is held to be practiced in other jurisdictions in accordance with international best practice and urged the court to apply same in accordance with its constitutional mandate.

It is also the position of the Claimant that by Rule 100228 (c) of Chapter 10 of the Public Service Rule, 2009 and Exhibit CW 22 which is the Defendant’s guidelines for study leave without pay, the Claimant’s period of study was not regarded as a break in service, the implication of which will definitely work injustice against him. According to the Claimant: “what then will be his benefits in the service if not upgraded upon his completion of studies to augment the four years calculated for him without receiving any salary or emolument?”

Finally, the Claimant submitted that since his evidence was not challenged, contradicted or discredited by the defendants, the defendants are taken to have admitted the same and the court has little or no choice than accept the unchallenged and uncontroverted case placed before it by the Claimant relying in the case of Gorma v. Batelitwin Global Service Limited (2013) 31 N.L.LR. (pt. 90) 463 at pp 481-482 paras H-B.

DECISION OF THE COURT

I have carefully gone through the processes, the arguments and most of the authorities thereof and watched the demeanour of the Claimant in this case and hereby wish to adopt the Claimant’s lone issue for determination: Whether from the facts and circumstances of the case, the Claimant has established his case to be entitled to the reliefs sought.

Whether the answer to the above question is in the affirmative or otherwise will however depend on the evidence put forward by the Claimant. Suffice it to say that the submission by the Claimant that his unchallenged and uncontroverted evidence ought to be accepted by the court as establishing the facts therein need a second look. It is true that the Defendants did not enter any formal appearance, file any defence and did not have any legal representation throughout the hearing of this case in spite of been put on notice at every turn. It is also equally true that under this circumstance, the Defendants are presumed to have admitted the case made against them and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See the case of Ifeta v. Shell Petroleum Development Corporation of Nigeria Ltd (2006) Vol.6, MJSC 123. However, the absence of evidence by the defendant does not absolve the claimant of the burden of proof placed on him by Section 131 (1) & (2) of the Evidence Act, 2011. See Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt 1057) 218. Lack of evidence or defence per se does not guarantee automatic victory to the claimant since evidence does not become credible merely because it is unchallenged. See Akalonu v. Omokaro (2003) 8 NWLR (Pt 821) 190. So it is still incumbent on the Claimant to adduce credible evidence to prove his case, albeit, on minimum proof. The doctrine of minimum proof is captured eloquently by A. M. Mukhtar, J.S.C. (as she then was) in the case of Newbreed v. Erhomosele (2006) 2 S.C.N.J. 215:

“The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, minimum evidence adduced by the other side would suffice to prove its case. See Buraimoh v. Bamgbose (1989) 3 N.W.L.R. (pt. 109) page 352, and Nwubuoku v. Ottih (1961) 2 S.C. N.L.R. page 232.”

Another preliminary issue worthy of mention from the onset is the submission of Claimant on the execution of a training bond in this case as a matter of international best practice recognizable by this court. The issue of international best practice is a question of fact and the Claimant did not adduce any evidence to bring the case within its application. Not only that, the application to proceed on study leave (Exhibit CW 2) and the approval to so proceed (Exhibit CW 3) cannot strictly speaking be described as a training bond. The submission of the Claimant in this regard is hereby discountenanced for the purpose of this judgment.

The coast is now clear for the determination of whether the Claimant is entitled to the reliefs claimed given the state of evidence. Generally, the position of the law is that Promotion in employment law is a factual situation which cannot be inferred or attributed and it is neither automatic nor a right but a privilege. See Abenga v. Benue State Judicial Service Commission (2006) 14 NWLR (Pt. 1000) 610 CA and Nwoye v. FAAN (2019) 5 NWLR (Pt. 1665) 193 at 218 paras B-C (a case cited by the Claimant). It will be therefore invidious or unfair for the Court to foist on an employer a person who should occupy a particular position. See Shell Pet. Dev. Co. v. Nwaka (2001) 10 NWLR (Pt. 720) 64. The only exception is where the denial of promotion is vindictive, mala fide, and so qualifies as unfair labour practice. See Mrs.Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NLLR (Pt. 103) 40 NIC. I also agree with the distinction advanced by the Claimant between the facts of this this case and that of Nwoye v. FAAN (supra). I also think that the instant case is not the normal promotion case based on periodical appraisal, evaluation and personal assessment, but promotion commensurate to newly acquired qualifications and therefore requires different considerations.

Now, since promotion is a factual situation, can it be said that the Claimant has earned his promotion or/and has succeeded in bringing the case within the exceptions envisaged by the case law? On the state of documentary evidence and the law, I have no hesitation in finding and holding that the Claimant has not only earned his promotion but also brought the facts within the exceptions of the law. A look at the evidence will support this stance. The Claimant was able to demonstrate by documentary evidence the fact that his application for study leave without pay was approved by the Defendants vide Exhibits CW 2 and CW 3 respectively. He also found support in Rules 100226, 100227 and 100228 which governs the application for study leave giving credence to the fact that the Claimant has satisfied the conditions for the grant of the study leave.

Similarly, the Claimant was able to prove that he successfully completed his approved course of study within stipulated time and also passed the ASCON examination as directed by the Defendants. These are Exhibits CW 4, CW 7 and CW 17. To show entitlement to promotion to the rank of ASP 11, the Claimant relied on Rule 020702 (b) of the Public Service Rules, 2009, Nigeria Police Regulation nos. 43 (1), (2) and 149 and Police Order no. 283.

As for the refusal of the Defendants to upgrade the Claimant in spite of repeated demands, the Claimant exhibited a barrage of documents such as Exhibits CW 19, CW 18A, CW 18B, CW 16, CW 15 and CW 13.

From all I am saying, the Defendants’ refusal to promote the Claimant is vindictive, mala fide, and so qualifies as unfair labour practice that requires the intervention of this court. Accordingly, the claimant’s case succeeds in the following terms only:

a)It is hereby declared that the claimant’s academic qualification, namely B.SC (Ed) Second Class Honours (Lower Division) dated 4th day of April, 2011 was obtained in furtherance of claimant’s academic pursuit upon approval by the 1^st defendant for the claimant to embark on study leave without pay.

b)It is hereby ordered that the defendants shall recognize claimant’s academic qualification, namely, BSC (Ed) Second Class Honours (Lower Division) as valid.

c)It is hereby ordered that the Defendants shall promote/upgrade the Claimant to the rank of Assistant Superintendent of Police (ASP) II with effect from 2011 and pay him all his financial entitlements and benefits in recognition of academic qualification and rank from the said date.

d)The declaration that the Claimant is due for further promotions between 2011 to 2018 and an order to further promote the Claimant to the rank of Superintendent of Police (SP), a rank he would have attained if he was promoted to the rank of Assistant Superintendent of Police (ASP) II in 2011, are hereby refused. This is because the reliefs are not only not made out but in realm of promotion based on periodical appraisal, evaluation and personal assessment and not a matter of course to be so granted by the court.