IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE OYEBIOLA OYEJOJU OYEWUMI
DATE: 28TH NOVEMBER, 2018
SUIT NO.NICN/AK/60/2012
BETWEEN
MRS VERONICA E. EBUEHI ……….CLAIMANT
AND
CIVIL SERVICE COMMISSION, EDO STATE
HEAD OF SERVICE, EDO STATE ………DEFENDANTS
THE ATTONERY GENERAL, EDO STATE
REPRESENTATION:
P.E Ebuehi with him is S.I. Aghoha and A.U. Asemotafor the Claimant
I.O. Kadiri Senior State Counsel, Edo State Ministry of Justice for the Defendants
JUDGMENT
The Claimant approached this Court by a general form of complaint filed on the 12th December 2012, claiming against the defendants the following reliefs:
The release of her promotion to Grade of Administrative Officer, Grade I (now Grade II), Grade Level 16 with effect from 1st July 2007 arising from her promotion interview with the 1st Defendant on 16th September, 2009.
The payment of arrears of salary being the different between her last earned salary of Grade Level 15 Step 9 and the new salary of Grade level 16 Step 9 with effect from 1st July 2007 when the promotion fell due.
A declaration that the purported reduction in rank of the claimant after retirement from Grade of Administrative Officer Grade level 15 to that of Chief Executive Officer, Grade level 14, a grade which Grade Level was not in existence when the Claimant transferred away from the Grade of Assistant Cadre in 1994 as invalid, null and void, and of no effect whatsoever.
It is the claimant’s case that she was employedas a confidential secretary into the Bendel State Civil Service on Grade Level (GL) 06 on 2nd October 1975, that her period of service was extended by the State Government by one (1) year by virtue of her study leave withoutpaywhich she utilized for her Certificate Course at the University of Benin in 1984. It is her testimony that she then obtained a certificate in Public Administration which she used in her conversion from the Secretarial Cadre to the General Executive Cadre and that by virtue of the Civil Service (Re-Organization) Act, 1988 Cap 55, she was promoted to the gradeof Chief Local GovernmentAffairs Assistant Officer in 1990 and following her transfer to the Administrative Officers Cadre, she was transferred to the Grade of Principal Local Government Affairs Officer (GL12) in 1994 while GL13 was made personal to her. She stated that due to that transfer, she was stagnated in the service for ten (10) years on GL13, she also noted that upon her transfer to the Administrative Cadre in 1994, there was no extended interview conducted for officers wanting to be transferred as required by the Civil Service Rules because Civil Service (Re-Organization) Act Cap 55 such Ministry/Extra Ministerial Departments were in charge of promotion and discipline of their staff to the exclusion of the 1st defendant and prior to her transfer to the Administrative Cadre in 1994; three of her other colleagues had been transferred in 1990. That on the 21st November, 2003, the 1st defendant through the approval of the 2nd defendant conveyed its approval by virtue of a letter circular dated the 28th February, 1995 to adjust the effective dates of her transfers and promotions. She continued that the Civil Service (Re-Organization) Act, Cap.55 was abrogated but the 1st defendant still handled promotion until 1999 hitherto being handled by individual Ministries/Department. Furthermore, another letter dated 10th December 2010 was issued to her stating that she should comply with Rule No. 02602 of the Civil Service Rule 2006 for her inter-cadre transfer to Administrative Officers’ Cadre. It is also her averment that she replied the said letter vide another dated 7th February, 2011 that the Cadre which she applied for took place in 1994 which is eighteen (18) year before the defendants’ letter and that also on the 13th September 2012, she purportedly received a letter through the 2nd Defendant from the 1stdefendant purporting to have retired from Edo State Civil Service on the 2nd October, 2011 as a Chief Executive Officer, GL14. Whilst she had earlier attended an interview on the 16thSeptember 2009 for promotion to the grade of the Administrative Officer GL16 and the result of the interview had not been communicated to her but her colleagues with whom she attended the interview were already aware of the outcome of theirs. That even a month after the interview, she had received two letters from the 1st defendant dated 26th and 27th October 2009 respectively, the one dated 26th October 2016 requesting that she should appear before members of the 1st defendant with her credentials, promotion letters including inter-cadre transfer letters and another dated 27th October requesting her to submit the originals and photocopies of her letters of promotion and inter-cadre transfers since she joined the service of the 1st Defendant. It is her statement that she complied with both letters within 24 hours upon receiving same and that having waitedfor a while without the release of her promotion result despite the fact that her colleagues had been informed about the outcome of their promotion interview, she then appealed to the 2nd defendant (as the Head of her Cadre) through her departmental head on the 6th November, 2008 and also in accordance with Chapter 9 of the Civil Service Rules 2006 , the Head of Government (that is the executive Governor of Edo State) on the 29th November 2010. It is then her testimony that she should be paid arrears of salary amounting to the difference earned last on her Grade Level 15 Step 9 at retirement on 2nd October 2011 which is One Hundred and Thirty Thousand, Five Hundred and Seventy-Seven Naira, Sixty-ThreeKobo (N130, 577.63) andsalary Grade Level 16 Step 9 being her promotion in the Civil Service with effect from 1st July 2007 when the promotion fell due.
The defendants on the other hand filed their joint statement of defence on the 6th February, 2014, they stated that in July 2009, the Edo State Civil Service Commission received briefs for promotion in the management staff groupfor the Administrative Officers Cadre, from the Office of the Head of service in respect of thirteen (13) Administrative Officers one of whom was the Claimant (a former confidential secretary/Executive Officer) in the Edo State Civil Service. The said letter necessitatedcuriosity in members of the Commission, in that contrary to the norm, the claimant was theonly officer recommended for promotion from the postof Administrative Officer II, Grade Level 15to that of Administrative Officer I, Grade level 16 with the proposed effective date of promotion on the 1st July 2007. The curiosity was heightened by the fact that six (6) of the other officers who were recommended for the post of Administrative Officer II Grade level 12 were evidently more qualified than her for that position based on the scheme of service requirement for the position and yet were being recommended for the lesser position of Administrative Officer II, Salary Grade level 15. The defendants continued that however, the committee interviewed the Claimant but thereafter proceeded to carry out its investigation and it was revealed that she joined the service of Edo State on 9thSeptember, 1975 as a Confidential Secretary and rose to the post of Senior Personal Secretary on 1st August, 1985. They stated that the Directorate of Administration was duly informed of the requisite qualification for entry into the Administrative Officer Cadre which was by University Degree and that the Claimant without the possession of a University degree managed through a long process of deception of both the 1st defendant and the Governor’s Office Directorate of Administration to lay claim to the fact that she was an Administrative Officer. It was also observed that whilst other officers in the Administrative Officer Cadre obtained University Degree in 1984 and 1985, that the claimant had her first degree in 1999, that it is therefore anomalous going by the provisions of the scheme of service for her to be aspiring for the position of Administrative officer I Salary Grade Level 16, that her promotion was kept on hold while she was invited to produce evidence of all her educational qualifications, her promotions and evidence of her career progression in the Civil Service which could have warranted her promotion to Level 16 with effect from 1st July 2007. That the commission conveyed its investigation on the 11th November, 2009 and 1st Defendant informed the Head of Service that it was unable to approve the promotion of the claimant to the post of Administrative Officer 1. It is further the testimony of the defendants that the claimant till date has not been able to provide any letter authored by the 1st defendant transferring her to the Administrative Officer Cadre. They continued that the premise on which the Claimant had all along predicated her supposed transfers that during the period whilst Decree 43 was in operation, the Commission was stripped of its powers of appointment and promotions is incorrect. They continued that the singular act of the Claimant shows that she was aware of Decree 43 was not the final authority in all matters concerning promotions or advancement in the Civil Service that the petition which was not upheld should have ended in the Directorate of Local Government if 1st defendant had no power to be leveraged upon.They averred that the letter in June 1995 transferring the claimantfrom the grade of Chief Local Government Affairs Assistant to the post of Principal Local Government Affairs Officer is an aberration which was subsequently followed up by the decision of the Commission on 23rd August 1995 that no action could have been taken on it as the Claimant has not gone through the usual commission extended interview. The defendants went on that in full cognizance of this aberration, the claimant wrote to inform the Commission through the office of the Head of Service that even though she was due for retirement on 3rd October 2011, that she was still awaiting the release of her promotion to Grade Level 16 although she did not apply for approval for compulsory retirement with the relevant documents, the 1st defendant was prompted to write a letter to the Head of Service reiterating its stand that her status at retirement remained Chief Executive Officer Salary Grade Level 14. That having not complied with this requirement, the computation of the Claimant’s retirement could not be processed by the defendants and that his deceptiveness constitutes a serious misconduct in view of her suppression and falsification of records the penalty for which is outright dismissal from the civil service. That the Commission acknowledged the fact that she could not have perpetrated the fraud without the active or passive connivance of some operatives of the commission and in the Governor’s office from where her briefs for promotion originated. That the 1st-3rd defendants further averred that the Commission’s position is based on the provision of Section 202 of the 1999 Constitution of the Federal Republic of Nigeria and that the Commission has not violated any of it’s laid down Rules and Regulations on Fundamental Human Rights of the claimant.
During trial, the claimant testified for herself as CW, she adopted her sworn deposition on oath dated 26th June 2017 and her additional statement dated 20th March, 2017 as her evidence in the case, she also tendered some documents which were admitted by the Court and marked Exhibits V-V17. The defendants also testified through One Mrs. Rita NkirukaEmokpai, she adopted her statement on oath dated 12th March, 2018 as her evidence in the case and tendered some documents which were admitted by the Court as Exhibits RN-RN15.
At the close of trial, in compliance with the Rules of this Court, parties caused their written address to be filed; thedefendants filed on the 25th July, 2018 and canvassed two (2) main issues for the Court’s determination viz:
Whether the Claimant has proven her claims to entitle her to the grant of the reliefs she seeks in this suit.
Whether the defendants’ action in this suit is arbitrarily
Counsel on issue one submitted that in Civil suit of this nature, the onus lies on the claimant to prove her reliefs regardless of the weaknesses on the part of the defendants, he cited Nwanga v. Registered Trustees Recreation Club[2004] FWLR (pt.190) 1360 Ratio 2 &6, Orsisamu v. Idowu [1959] 4 FSC 40,that it is evident that she has failed to place any requisite evidence in support of the case, to show the interview attended at the office of the 1st defendant on 16thSeptember, 2009 at the behest of the 2nd defendant necessitated her promotion to GL16, he argued further that an employer is not obliged to promote an employee butwhen he does, he cannot withdraw or discontinue the said promotion without good cause. In buttressing his point, reliance was placed on the case of Morakinyo v. Ibadan City Council [1964] 3 NCC 167 at 169 NCLR at 154,Abenga v. B.S.J.S.C [2006] 14 NWLR (Pt 1000) 610 at 6222, Baba v. Nigerian Civil Aviation &Anor [1991] 5 NWLR 388 at 393-394. Counsel also stated that the last paragraph of Exhibit V obviously shows that the said interview did not in any way result into the promotion of the Claimant to Grade level 16 and even for a fact the claimant was aware of this by Exhibits V10, V12, V13 and the defendants’ Exhibits RN8, RN9. He then considered another bulging question as to whether the 1st defendant treated the claimant’s interview without any consideration or communicated result, he answered in the negative and stated that the defendants treated the claimant’s interview and released the concomitant result promptly to the claimant through her Accounting Officer of the 1stdefendant, intimating herthat the defendants released a result of her being demoted to Grade Level 14 as at 1stJanuary, 2015. It is in view of this he argued that the claimant’s claim is lacking in merit and hence there should be a grant of a consequential order of dismissal, he placed reliance on the case of Omomeji v. Kolawole [2008] 7 Consolidated Monthly Law Report page 157 at pages 178, paragraph D-E. Also, on the claimant’s second relief, it is the submission of learned defence Counsel that “no one can put something on nothing and expects the something to stand’, as he relied on the English case UAC v. Macfoy [1962] A.C. 52. He contended that the relief has long been overtaken by event since six month thereafter Exhibit RN8 was caused to be in place on 11th November, 2009, he noted that on the letter of Appeal to the State Governor dated 29th October 2010 (Exhibit V13), the purport was to make the governor review the conclusion with regards to the validity or otherwise to the claimant’s career path to GL 15, Counsel argued by the Edo State Civil Service Rules (Revised 1st January 2006) that the petition of Exhibit V3 was stale and ineffective at the time it was submitted to the Governor, he cited Rules 090208(b) and 090201(ii) of the Edo State Civil Service Rules (Revised 1st January 2006). Counsel also weighed the other side of the coin that assuming but not conceding that the declaration of the defendants and the state Governor had been in place before filing this suit, the claimant ought to have approached the Court by the process of Judicial Review or Prerogative Writ of Certiorari which exists to quash the decision of bodies clothed with extra judicial authorities and cited the Supreme Court case of Eguamwense v. Amaghizemwen [1994] 14 LRCN page 147 at page 197.In arguing issue two, learned counsel submitted that Section 202 of the 1999 Constitution as amended the unfettered power to make appointment or exercise disciplinary control over persons such as the claimant is vested in the 1st defendant,He argued that in the exercise of that power various petitions were levied against the claimant and investigation conducted to find out whether her promotions and transfer up to GL 15 of Administrative Cadre are irregular and that instead of the claimant to explore the good opportunity offered in Exhibit V9 and regularize her promotions, she only replied the defendant by Exhibit V10 that the said transfer took place 16 years before the time she was issued Exhibit V9 even when the Accounting Officer of the 2nd Defendant did advise her to comply. It is then the argument of learned defence counsel that the claimant in her attempt to validate her career path tendered before the Court certain portion of Decree 48 of 1988 or Chapter 55 of Civil Service (Re-Organization) Act which she felt would validate her career-path.That a wholly consideration of Section 6 and other Sections, specifically Section 8 of Exhibit V5 would avail the defendants’ stance in this suit.Counsel further noted that the claimant’s transfer in 1994 was inter Cadre and not intra ministerial, he observed that the former position of the claimant before 1994 was the Chief Local Government Affairs Assistance which was under the Charge of Edo State government while the one of her transfer vide Exhibit V9 is the Administrative Cadre of 1994. Counsel then submitted that the Claimant’s 3rd claim of being reduced in rank of GL 14 after her retirement is not true, this is because of the existence of numerous documentary Exhibits which are correspondence exchanged between the claimant and the defendants depicting the information that the claimant should retire at GL 14 before her eventual retirement in 2nd October, 2011 and on 2nd December 2010 by Exhibit RN15, the defendants demanded that the claimant should regularize her 1994 inter cadre transfer by complying to the provision of the Civil service Rule No. 02602 which governed the Administrative Cadre, he argued that Exhibit V never requested the retirement benefits calculating duty of the 1st defendant but only said it merely exists for the information of the 1st Defendant pending when the issue of the Claimant’s desired promotion to GL 16 will be sorted out, he argued that hence the issue of Exhibit RN 16 came up on the 13th September 2012 after the suit was instituted which is not due to the fault of the defendant as the alleged defendants’ belated action was caused by the claimant’s belatedness and the claimant should be the last person to be heard complaining against her non-promotion on the eve of her retirement, reduction in rank and non-payment of her retirement benefits he placed reliance on the case of Salako v. Williams [1988] 11 NWLR (Pt. 574) 505 at 521 (Paragraph D-F). On promotion in civil service, it is submitted that underSection 6 and 8Decree 43 of 1988 and Rule 020701(a) of the Civil Service Rules the power to control and approve promotion rest on the 1st defendant, he argued that promotion is mandated to be made on basis of competitive merit from among all eligible candidatesand consideration is to be made to the minimum number of years that an officer must spend in a post before being considered so eligible, he relied on Rule 020701 (b) and (c) of the Civil Service Rules. He argued the claimant did not place any document evincing the approvalmade by the permanent Secretary of the Claimant when she was in the General Executive Cadre of the 1st defendant in 1994 to the Administrative Cadre. He concluded that the defendants acted in accordance with Civil Service Rules and within their constitutional powers in the affairs of the claimant’s quest for promotion to GL 1and the only remedy for that the Court can grant the claimant is outright dismissal of the suit in its entirety.
The Claimant in the same vein also filed her final written address on the 23rd August 2018 and devisedfive (5) issues for the Court’s determinationwhich are:
Whether the 1st Defendant was right not to have accepted the transfer of the Claimant to officers’ cadre in 1995 carried out by her predecessors in office in accordance with Decree 43/88 and the extant rules and regulation of the State Civil Service.
Whether the 1st defendant was right not to have released the promotion of the Claimant after allowing her attend the interview on 16th September 2009.
Whether the 1st defendant was right to have downgraded the claimant from the grade of Administrative Officer, Grade 11, Grade level 15 to that of Chief Executive Officers, Grade Level 14, a Grade level that was not in existence at the time the claimant transferred out of that Grade in 1995
Whether the 1st defendant was right to have held that neither herself nor the 2nd defendant let alone the claimant herself had record of her transfer to the Administrative Officer’ cadre in 1995
Whether or Not ASCON examination into senior Officers Cadre in the Civil service is a post-Graduate Examination for serving officers as at 1992 and before in Edo State.
Counsel contended on issue one that the scheme of service for the transfer of serving officers into Administrative Officers Cadre as captured in paragraph 9 and 10 of defendants’ witness statement on oath of the defendants were neither frontloaded nor tendered in evidence by the defendants as such the Court should invoke Section 167(d) of the Evidence Act, he argued that the transfer of some of the claimant’s colleagues in 1990 shows that persons without a university degree has been going on in the Civil Service before the Modality for Transfer to officers cadre (Exhibit V8) came in 1993. He argued that the claimant was invited for an interview with the 1stdefendant vide Exhibit V8, and the 1st defendant was properly represented before the interview board and consequently the claimant was transferred by the secretary of the state to the Administrative Officer cadre by a letter dated 24thFebruary 1995 with effect from 23rdFebruary 1995 and the 1st defendantin Exhibit V8 made reference to the letter No. S.146/Vol1 III/763 dated 19th April 1995 which was never tendered in evidence by the defendant in spite of the Notice given to produce same. Claimant’s counsel argued with regards to paragraph 22 of the defendant’s witness sworn deposition on oath, the commission did not have the authority under Decree No. 43 of 1988 to promote let alone to convey the approval for the promotion of senior officers in Edo State. He continued by stating that failure to tender in evidence any other document contradicting this document means that the defendants have admitted it as a true reflection of what happened in respect of the transfer of the claimant to Administrative Cadre in 1995, likewise he disapproved of Exhibits RN1, RN2 and RN3 which were letters of the claimant’s promotion to various grade including the inter cadre transfer to the General Executive Officer cadre in 1995 stating that they were not authored by the 1st defendant. He contended that the defendants did not frontload nor put into evidence the letter it claimed to have written to the Secretary to the state government about the decisions of the commission on the promotion of the claimant on 23rd August 1995. He argued that the each Ministry and Extra Ministerial department such as the Military Governor’s office (the department in which the claimant belonged) were still carrying out their promotions and discipline of staff until 1999.That Decree 43/88 in 1995 was being reviewed until 1999 when it was finally reviewed and that when officers started going to the 1st defendant for their promotion hence the salary GL15 if the claimant in November 2004 and the result released on 8th December, 2004(ExhibitV4). However, counsel noted that the defendants did not counter the effect dated of Exhibit RN6 and V6 in their pleadings and that the claimant ought not to be subjected to the horrifying experience on the eve of her retirement from the Civil service by denying her right to promotion having agreed to interview her for the promotion based on her recommendation by the Head of Service, he also contended that the Court should permit her to be promoted having attended the promotion interview without any adverse Annual Performance Reports for three (3) years preceding 16th September 2009 when she attended the interview in the commission. He stated that the so-called investigation carried out in respect of the transfer of claimant to Administrative Officers Cadre was based on poor understanding decree 43/88 and its attendant implementation in Edo State Civil Service. That from the evidence available and documents tendered by parties, it is clear that the investigation of the claimant’s transfer to Administrative officer’s cadre without soliciting for comments from the head of service who recommended her for promotion is bound to lead to miscarriage of justice.
It is the argument of learned claimant’s counsel on issue two argued that the claimant submitted herself for interview and there is no reason whatsoever for her not to be promoted to GL 16, that the only issue being queried and which was nor raised at the interview, was the extended interview. That extended interview for a serving officer wanting to transfer to officers’ cadre was no more in use at the time as can be seen in the cases of the colleagues of the claimant. That the defendants did not deny the transfer of the staff to officers’ cadre, who did not have a University degree or attended any extended interview because the exercise was done under Decree 48/88, he argued that the `1st defendant had no good cause to deny the claimant her promotion to GL16 because she did not attend the extended interview in the commission for her transfer to Administrative Officers Cadre. He contended that the claimant had proved conclusively the fact that at the time she was transferred toAdministrative OfficersCadre in 1995, the decree of 43/88 was still in force contrary to the contention of the defendants hence the claimant ought not to be denied promotion to GL 16 as the premise under the promotion was denied was their inability tointerpret the laws, rules and regulationssurrounding the promotion to officers’ cadre under decree 43 of 1988. He argued that no names were mentioned of the aggrieved Administrative officers who claimed that the claimant had superseded them over the course of the years were tendered in evidence. He noted that Exhibit RN4, RN5, RN6, RN7 and RN8 are all documents evidencing the fact that the claimant has been enjoying undisturbedpromotionsin spiteof the alleged petitions, he cited Section 167(d) of the Evidence Act. He notedthat the Civil Service Commission invited the claimant for the promotion interview from GL14 and GL15 in 2004, Exhibit V4 and V8 and that nothing indicated in the investigation that the claimant had an adverse Annual Performance Evaluation Report for 3 years preceding the interview that the only document that could have contained the information is the brief with which the Head of service forwarded to the commission for her promotion to GL16 and that of other allegedly aggrieved Administrative Officers which was however not tendered in evidence in spite of the undertaken to do so in Paragraph 4(a) of the defendants’ statement of defence.
It is the submission of learned counsel on issues three and four that the 1st defendant broke all the rules and regulation known to their contractual relationship by downgrading the claimant from Administrative Officer GR1 GL15 to that of the executive officer GL14 which was not in existence at the time of the claimant transferred to that grade in 1995, that from Exhibits RN11 and RN10, the retirement was to take effect from 3rd October 2011. He contended that the 1stdefendant do not have absolute arbitrarily discretion, its powers must only be exercised reasonably, fairly and justly, he relied on the case of Ojukwu v. Lagos State Military Governor [1986] 2 NWLR (Pt 18) 621. He argued further on the authority of Solomon Abekhe v. Apha Merchant Bank Plc [2017] ALL FWLR (Pt 914) at 984 (Ratio 13) that the claimant having retired from the 1stdefendant with effect from 3rd October 2011 and her last salary earnedfrom the civil service was on GL 15 Step 9 thereafter her name was removed from the payroll as such the letter of reduction in rank was ineffective. He relied further on paragraph 15 of the witness deposition on oath. They also argued that if 1st defendant is the one who personally wrote a letter to her on her transfer to officers’ cadre in 1995, a factwhich was contested then why was she not written personally when she was allegedly reduced in rank in 2012, if indeed the 1st defendant was not aware that the claimant has formerly ceased to be an employee of the 1st defendant. He placed reliance on Section 210(2) of the 1999 Constitution. He opined that promotion is not part of the independence provided to the commission by Section 202 of the 1999 Constitution. It was in an attempt to exercise the so called independence in an issue on promotion that led the State Government through the resolution of the State House of Assembly to dissolve the commission on 20th February 2013 and that Exhibits V15 and V16 are proofs. In accordance with the commission’s circular letter No. 058/Vol.III/T 1444 of 12 the March 1992 with which the commission stated its position on promotion with respect to Decree 43/99, the claimant was not supposed to get her promotion processed to the commission for promotion interview because she was above GL09 and at the time she was recommended for promotion in 2009 to GL16 by the head of service she was a head of Department as a director for Administration on GL15. Also that fact pointed out in the witness deposition on oath by the defendants were contradicted by Exhibits V2 V8, V9, V14, RN 5, RN8 and RN15 and as such the 1stdefendant and the Directorate of Administration cannot claim that the records of the claimant with all her training programs and posting on various ministries are not true.
Counsel on issue five furthersubmitted that by the combined effect of Exhibit V8and V15, it is clear that serving officers may not necessarily be University grade before being transferred to the officers’ cadre. He argued that the new scheme adopted in Edo State on 30th May 2006 as shown in Exhibit V2 and V15. He argued further that serving officers were eligible to sit for ASCON examination and if successful could be transferred to the officers cadre provided they satisfy the minimum requirement stated in Exhibit V8, he contended that the claimant was eminently qualified to sit for the ASCON examination and seek for transfer to the officers cadre in 1994 based on Exhibit V8. In addition, that the claimant exhausted all the internal administrative channels by her letters Exhibit V12 and V13 respectively urging the grant the promotion to GL16 and that the defendant failed to tender letter Reference No P.E 1634/4 dated 6th October, 2011 and only tendered letter referenced PC 12549/340 of 17thFebruary 2010 which is a rely to the letter from head of service. Counsel also contended that the defendants did not indicate when exactly ASCON examination became a post graduate examination for serving officers who want to be transferred to Officers Cadre in Edo State hence the main thrust of the defendant’s argument is just predicated on the fact that the claimant had no university degree as at the time she was transferred to Administrative Officers’ Cadre in 1995.
The defendants filed their Reply on Point of law to the claimant’s written address on the 2th of October, 2018, learned counsel pointed out that the claims and arguments of the claimant in his testimonies are at variance with the reliefs sought. It is the argument of learned defence counsel that Sections 6 and 8 Decree 43/88 exists to cloth the 1st defendant with the manner it treats the issue of the claimant’s inter cadre transfer, he noted that what is in issue is the claimant’s irregular transfer to Administrative Cadre, he argued that all the sectional provisions relied on by the claimant in this issue do not contain any power given to the 2nd defendant or any Head of Ministry to effect inter-cadre transfer, that the Sections only contain the power of the head of any ministry to appoint, discipline and promote. Counsel then submitted that the claimant cannot claim ignorance of the fact that the 1st defendant is saddled with the responsibility to approve the said claimant’s inter cadre transfer in 1994 that she scripted a letter to the 1st defendant (also copied the Secretary to the Military Governor and the Director-General, Directorate of local Government and Chieftaincy Affairs) to that effect on 29th March 1995 (Exhibit RN5), but instead of being patient, the claimant replied Exhibit RN15 (to the officer of the Secretary of the Military Governor on 15th June 1995, and hence Exhibit RN6 approving the purported transfer of the claimant. It is the further submission of counsel that all that she needed for her promotion to GL16 in 2009 was simply to attend the interview of 16/9/2009 which she has failed to do, hence he submitted that argument of the claimant is misconceived and reiterated the position of law that an employer is not obliged to promote an employee and relied on Morakinyov.Ibadan City Council [1964] All NLR 221 at 222 , Rule 020701 of the Edo State of Nigeria Civil Service Rules (Revised 1st January 2006). He argued that the issuance of Exhibit V9 to the claimant which was well receipted and reacted to in Exhibit V10 shows that the claimant had some disciplinary action to settle with the 1st defendant in regard to regularizing her 1994 inter cadre transfer but failed to do and communicating the reason for such failure in Exhibit V10. It is the duty of the claimant to convince the Courtthat at the time the 1st defendant placed her on GL14 on 11th September, 2009.( Exhibits RN9 and 10) that the rank of GL 14 was not extant in Edo State Civil Service. He argued that this is because the claimant has placed before the Court that Decree 43/88expired in 1999 and cannot in another vein pray that the Court should satisfy her reliefs on a law that has been repealed. He cited Solomon Abekhe v. Alpha Merchant Bank Plc [2017]All FWLR (Part 914) 971 at 989 (Ratio13). The action in Exhibits RN10, V12 and V13 was not done after the claimant’s retirement but before she retired and when she was in service however the defendants pleaded and averred that when the claimant wrote the 1st defendant through her accounting officer of the 2nd Defendant, that she was still awaiting the release of her promotion to GL 16, the 1st defendant replied the claimant through the same channel of the 2nd defendant that the letter of Exhibit RN15 dated 2/12/2010 maintained hitherto that the claimant remained in GL14. Counsel then submitted that the defendants’ decision on Grade Level 14 till retirement was done and communicated to the claimant and not thereafter she left the service and that the claimant’s action in this suit was that “her promotions and transfer to the Administrative Cadre were regular see the case of S.B. Olanrewaju v. Afribank Plc [2001] FWLR (Part 72) 2008, Ratio 3. It is also the argument of learned counsel that the claimant undermined the constitutional independence of the 1st defendant to investigate the claimant’s career path and demand the regularization of the inter cadre transfer, he drew the attention of the court to Section 202 of the 1999 Constitution and stated that the action of the defendants especially the 1st defendant in relation to the claims is culminated into the issuance of Exhibit V9.
He argued that paragraph 14 of the Statement of fact and the deposition is a statement of fact which was laid bare before the Court. He also submitted that Exhibits RN8, RN9, RN14 that ASCON Examination is only required to be sat for after one has acquired his first degree in the area of service he desires to transfer, he also pointed out that Exhibit V8 tendered by the claimant shows that an officer needs to be a graduate before applying to sit for ASCON while Exhibit V15 is proof that the claimant is not in any way aiding the issue of showing that ASCON examination could be before one acquires his first degree for inter-cadre transfer into Administrative Cadre. Counsel argued that Exhibit V15 operated in favour of officers like the claimant who were already in service since 1975 and thus the claimant has failed to place before the Court any document evidencing that the conduct of 19th September, 2009 interview was concluded in her favour to merit her promotion to GL16 and concluded by urging the Court to accept that the defendants’ argument is the true position in the case, he placed reliance on Cappa&D’Alberto Ltd v. AkintiloTilo [2003] NWLR (Part824), 49 Ratio 6 at page 71.
After giving to careful consideration the processes filed by parties before this Court, the oral testimonies of witnesses, the documents tendered and the written submissions of counsel coupled with authorities cited in support thereof, it is my humble view that the sole issue for determination in this case is:
Whether or not the claimant has proven her case to be entitled to the reliefs sought?
Before delving into the substantive suit, I must first consider animportant issue discovered on the face of the complaint filed before this Court on the 12th December 2012, I have observed that the reliefs claimed by the claimant on the Complaint (Form 1) are at variance with that in the statement of fact also filed before this Court which establishes the cause of action, however, there is no record of any amendment hitherto the extent of the claimant’s claim in this suit, the appropriate question then is which of the reliefs filed is for the consideration of this Court; is it that in the General Form of Complaint or the Statement of Fact in view of the disparity between both of them? Therefore, the position of the law is solid and firm that a statement of claim supersedes the writ of summons, hence if a relief is claimed in the writ of summons but not in the statement of claim, it is however deemed to have been abandoned and the reliefs endorsed in the statement of claim which is not in the writ subsist. See the case of TaloTuwan Sunday v. Zenith Bank Plc [2015] 56 NLLR (Pt. 192) 470thus, I find solace in this decision and hold that these reliefs adumbrated in the statement of facts would be adopted for the effectual determination of this case.
It isnowimperative to give a brief insight into this case; The claimant’s case is that she was in the employ of the 1stdefendant until her compulsory retirement which was effective from 3rd October 2011, that she was initially employed by the then Bendel State Civil Service as a Confidential Secretary Grade III on the 9th September 1975 as evinced in Exhibit V1and that she later converted by a letter dated 10th January, 1986 (Exhibit V3)from the Secretarial Cadre to the Executive Cadre by virtue of the Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 (Exhibit V5).She was transferred to the Administrative Cadre in 1994 but prior to which she had enjoyed various promotion within the Directorate of Local Government Affairs and Chieftaincy Affairs between 1990 and 1994(Exhibit V4), she stated that her promotion was approved by the 1st defendant from Administrative Officer III (GL14) to Administrative Officer II (GL15) vide the letter dated 8th December 2004( ExhibitV3) however she attended an interview on the 16thSeptember 2009 for promotion to the grade of the Administrative Officer GL16 and the result of the interview had not been communicated to her and that the 1st defendant purportedly compulsorily retired her from its service on the 2nd October, 2011 as a Chief Executive Officer, GL14.It is her complaint that she is entitled to be paid arrears of salary which is the difference earned last on her Grade Level 15 Step 9 at retirement effective on 3rd October 2011 which is One Hundred and Thirty Thousand, Five Hundred and Seventy-Seven Naira, Sixty-ThreeKobo (N130, 577.63) andalso salary Grade Level 16 Step 9 being her promotion in the Civil Service with effect from 1st July 2007 when the promotion fell due.The defendants admitted to the assertion of the claimant that she was indeed in its employ, they stated that 1st defendant received briefs for promotion of staff grouped in the Administrative Cadre, of which curiosity arose into the career path of the claimant it was discovered to be irregular hence an investigation was conducted and it was revealed that she joined the services of the 1st defendant on 9th September 1975 and rose to the position of a Senior Personal Secretary on 1st August 1985.It was then discovered that the claimant did not possess a University degree and her promotion was delayed till she was able to produce the relevanteducational qualifications to warrant her promotion to Grade Level 16 with effect from 1st July 2007 and that even for a fact, the claimant failed to produce any document transferring her to the Administrative Cadre and her premise on the transfer predicated in Secretarial Cadre to the Executive Cadre by virtue of the Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 (Exhibit V5) was incorrect and that she acceded also to the factthat she was due for retirement on the 3rd October 2011 and she was still awaiting the release of her promotion to Grade Level 16 but although she did not apply for approval for compulsory retirement with the relevant documents necessitating the 1st defendantto write that her status at retirement remained Chief Executive Officer Salary Grade Level 14, it is then the defendants’ submission that there was strict compliance with Section 202 of the 1999 Constitution as amended and there was no violation whatsoever in the rules and regulation governing their contract .
It flows from the above stated, that the nature of the employment relationship betweenpartiesis that with statutory flavor; this is because the terms and conditions of contract of employment or service are specifically provided for by statute or regulations made there under,nay! Decree 43 of 1988 and the civil service rules. It is said to be a contract protected by statute. See the cases ofKuti V NSITFMB [2016] 7 NLLR (Part 240) 440, Oforishe v. Nigeria Gas Ltd [2017] LPELR-42766 SC, Mr.Syed Qamar Ahmed v. Ahmadu Bello University (ABU) &Anor [2016] LPELR 40261 CA; Federal Polytechnic Ede &Ors v. Alhaji Lukeman AdemolaOyebanji [2013] LPELR 19996 CA.It therefore naturally flows that a valid determination/dismissal/promotion/retirement must satisfy the provisions of the said statute and a breach which renders the act ultra-vires and void as there must be strict adherence to the laid down procedure in the statute. See the cases of Okochav. CSC, Edo state &Anor [2016] 64 NLLR (Pt 228) 477, Ogbaje v. Abuja Investment and Property Development Co. Ltd [2007] LPELR-118 55 CA; Isaa Saibu v. Kwara State Polytechnic Ilorin [2008] LPELR-4524 CA. Thus, it is the duty of claimant to place before the Court the terms and conditions governing his employment with the defendants.It is also incumbent upon her to plead the material facts regarding her employment such as the nature of the employment, the terms and condition of the employment and the circumstances under which she was denied promotion and demoted after her retirement, she must also satisfy the Court with credible and valid evidence that she is entitled to the reliefs sought, See the case of Dumez Nig. Ltd v. Nwokoba [2008] NWLR (Pt1119) 36 at 374. I observed from a cursory look at all the documents tendered in evidence that the claimanttendered in evidence the Edo State Civil Service Rules albeit in parts as the law guiding her employment up till when she was supposedlycompulsory retired.However, it is apposite to state that the portions of the Edo State Civil Service Rules tendered by the claimant covers only Chapters 2 and 9 which are on Section 5 (Rules for non-pensionable short term appointment), Section 6, (Transfer and Secondments), Section 7 (promotion) and Chapter 9 on (Petitions and appeal). The Edo State Civil Service Rules tendered by the claimant is not all encompassing to meet the justice of this case and it is on this premise that I will place reliance on the Public Service Rules where so demands to decide this suit justiciable as the Public Service Rules is of a general application to all Civil Servants and Public Officers. The claimant also relied on some provisions particularly Sections 6 and 8 ofthe Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 (Exhibit V5)which was the law in force to the extent of the inter-cadre transfer from the Executive Cadre to Administrative Officer’s Cadre in 1994 and also the Public Service Commission Regulation of 1978(which was enacted with the approval and consent of the Military Governor).Paragraph 4 of the Claimant’s letter of employment dated 9th September 1975 wherein it is stated:
“Your appointment will take effect from the date on which you assume duty and will be subject to the terms and conditions laid down for the Public Service of the Mid-Western State of Nigeria and the General Orders and other Regulations in force for the time being”(Underline mine).In the case of DSS Zamfara State Command & Ors v. Mohammed & Ors [2018] LPELR 43869CA; the Court held thatin the constructionof documents, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Accordingly the words employed by them will be so construed and should be given their ordinary and plain meaning. Also settled law is the fact that a document must be holistically viewed. Thus, it is on this premise that I find that Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 (Exhibit V5) also governs the employment of the claimant as that was the law in force at the time of her employment.I so find and hold.
It is the claimant’s contention that she is entitled to the release of her promotion to Grade of Administrative Officer, Grade I (now Grade II), Grade Level 16 with effect from 1st July 2007 arising from her promotion interview with the 1st Defendant on 16th September, 2009.The defendants argued that claimant has not placed before the Court evidence to substantiate her claim to find her worthy of being promoted to grade level 16. Learned defence counsel submitted that the mere fact that she attended the interview did not give a ground to be qualified for promotion to grade level 16 and that she was aware that the defendant had released a result of her being demoted to Grade Level 14 hence her protest letter dated 6th of November, 2009 Exhibit V12. The claimant’s counsel maintained that the claimant submitted herself for interview, as such there is no reason for her not to be promoted to GL16 and be deprived of the fruit of the promotion, he condemned the failure on the part of the defendants to tender any documents contradicting the claimant’s promotion and relied on the principle that failure to disprove same is deemed admitted and furthermore, that promotion was not part of the independence provided to the 1st defendant by Section 202 of the 1999 Constitution as amended. He stated that by Exhibits RN4, RN5, RN6, RN7 and RN8 tendered by the defendants in evidence are documents evincing that the claimant have been enjoying undisturbed promotion before her GL16 position.
Promotion connotes advancement in rank or position, the offer of an employer and acceptance by an employee of a better more highly regarded position with the same employer, in terms of improved pay and/or improved conditions in return for the carrying out of a more responsible set of duties or more onerous tasks. Differently put it is an elevation to a higher position usually with an attendant increase in salary and/or benefits and probably an increase in duty or responsibility.It is trite that under the Nigerian employment law, promotion is neither automatic nor a right to the general proposition of law but a privilege; it is usually expected to be earned, there has however been a variation in that where it is based on agreed terms and conditions which the employee has fulfilled, it would be a breach of agreement if the employer fails to approve such promotion. See the cases of Mariam v. University of Ilorin Teaching Hospital Management Board [2013] 35 NLLR (Pt 103) NIC, FMC Ido-Ekiti v. Alabi [2013] NLLR (Pt890) 160, Abenga v. B.S.J.S.C [2006] 14 NWLR (Pt1000) 610. It is also being regarded as a privilege and not a right, it has to be earned and it is not a gift, See also Onalo v. Chairman Police Service Commission [2015] 55NLLR Part 188, page 4.The position of the law is firmly settled in that it is the duty of the claimant to prove her case to be entitled to the reliefs she seeks, as it is pertinent that the evidential burden of proof lies on the party who assets , Sections 132-137 of the Evidence Act 2011, lays down the fundamentals of such proofs, See also the cases of Anagbado v. Faruk [2018] LPELR-44909SC;Sakati v. Bako & Anor [2015] LPELR- 24739SC; Mr. Cosmos Onah v. Mr Desmond Okenwa &Ors [2010] LPELR-4781 CA, Mr. Alexander Okoh &Ors V. University of Lagos &Anor [2010] LPELR-4719 CA.It is admitted by both parties that the claimant was indeed invited for the promotion exercise scheduled on 16th September, 2009 however, the grouse of the defendants which precedes the act of withholding her promotionis based on the fact as seen vide Exhibit RN8 that the claimant in a span of ten years, got five promotions, both in the confidential Secretary and Personal Secretary cadre with the highest qualification of a certificate in Public Administration. “That in 1986, she got an inter cadre transfer into the General Executive Cadre as Assistant Chief Executive Officer from the position of Senior Personal Secretary, that on the 21st of August, 1990, the claimant was promoted from the grade of Principal Local Government affairs Assistant 1, salary grade level 12 to Chief Local Government affairs, salary Grade level 13. That by the 23rd of August 1995 she got another inter-cadre transfer from Chief Local Government affairs grade level 13 to Principal Local Government affairs officer Grade level 12. That notwithstanding that her inter-cadre transfer had taken effect from 23rd of February, 1995, the Head of service communicated his approval for her inter- cadre transfer by a letter number CPE.1461/28 as follows; Admin Officer IV GL13, no longer 12 with effect from 1/7/94 and Admin Officer III GL14 with effect from 1/7/97 and on the 8th of December, 2004 she was again moved to Administrative officer II GL 15 which is why she was presented for promotion to salary Grade level 16 in September, 2009.The defendants also posited that as at the time she was being transferred to the Administrative cadre, she was a student who did not possess a university degree as the position was reserved for those with a Bachelor’s degree and that in 1997 when the claimant obtained her degree, she ought to regularize her Administrative officer’s cadre back to 1997 which she failed to do hence the withholdof her promotion. The claimant under cross-examination responded that she was transferred based on a circular letter of 24th of November, 1993 Exhibit V8 and that what was required for such transfer was a minimumof school certificate, certificate in Public Administration, and a pass in ASCON examination and that she possessed more than the required qualification as she had HND in Secretarial Studies, Diploma in Public Administration and distinction in ASCON exams. That she applied for an inter cadre transfer and based on the interview conducted she was subsequently transferred from Grade level 13 in General Executive Cadre to Admin cadre on GL12 that she was not a graduate. A cursory look at the evidence on record discloses that the claimant was employed on the 9th of September, 1975 as a Confidential Secretary Grade III and rose through various positions. That by a circular from the office of the secretary, to State Government, Military Governor’s office, Bureau of establishments and Pension (department of establishment and pensions) dated 24th of November, 1993 (Exhibit V8), addressed to all Directors General, All Heads of extra ministerial department; the Auditor General (State), the Auditor General (Local Government) and the Accountant General listed out the modalities for transfer of personal assistant to personal officer cadre. The claimant in her testimony stated that she was invited for examination as evident on record by a letter dated 21st of December, 1994, shewas subsequently transferred to the post of Principal Local Government Affairs officer GL 12 effectively byExhibit V6dated 15th of June, 1995 from the Grade of Chief Local Government Officer effectively from 1st of July, 1994. From the record, the claimant was subsequently promoted in the years 1997,2000 and 2004 from the Administrative Officer Grade level 12 to Grade of Administrative Officer Grade IV Grade level 13 with effect from 1st of July, 1997 and Administrative Officer Grade III grade level 14 in 2000 and to Grade level 15 Administrative Officer Grade II with effect from 2003. The defendants’ grouse is that the claimant failed to produce any document transferring her to the Administrative Cadre and that her argument on the transfer predicated in Secretarial Cadre to the Executive Cadre by virtue of the Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 (Exhibit V5)is unknown as the law has been repealed since 28th February 1995. Claimant on the other hand posited that her inter-cadre transfer is pursuant toexhibit V8 andby virtue of the Civil Service (Re-Organization) Act 1988, Cap 55 also known as Decree 43 of 1988 which was the extant law in force at the time her inter cadre transfer took place and not rules 02601 and 02602 of the Edo State Civil Service Rules as stated in exhibit V9.
Now, the pertinent question begging for an answer is, what is the proprietary or otherwise of the action of the Military governor under Decree 43 of 1988 or the Civil Service Re-Organization Act 1988 or is the action of the Military Government with regards to the claimant’s transfer with the 1st defendant binding on the defendants? Differently put, could it then be said that Decree 43 of the 1988 was the operative statute guiding the transfer of the claimant’s employment from the Executive Cadre to the Administrative Officer’s Cadre or inversely put, whether as at the time the claimant was transferred to the Administrative Cadre, Decree 43 of 1988 had already been abrogated? A careful examination of the record before the Court discloses that claimant’s transfer was effective from 1st July, 1994 videExhibit V6 when the Civil Service Re-Organization Act 1988 or Decree 43 of 1988 was in force. A keen perusal of the law (Exhibit V5) reveals that it is “an act established to re-organize the civil service to make it virile, dynamic, result and development oriented; and to make provisions for other ancillary matters and right to appeal by aggrieved officers”. By Section 2 of Civil Service Re-Organization Supra, each Ministry or department of the government have powers to employ such number of persons to offices and posts in the services of the Ministry or department with the approval of the government from time to time and also can dismiss and exercise disciplinary control over persons holding such offices or posts. Hence the 1stdefendant and the Ministries under it can exercise powers over its employee including the defendant with the approval of the Government and also can dismiss and/or exercise disciplinary control over the claimant. Also, Section 8 (1) provides that an employee serving in a ministry may elect to transfer on a permanent basis to another ministry in which he has specialist qualification, skill and ability to function.(underline mine) (2) The appropriate authority, on the recommendation of the commission, may approve the deployment or transfer of an employee to a ministry of his election in accordance with subsection (1) of this section, if in the opinion of the appropriate authority; it is in the overall interest of Nigeria and of the employeeconcerned that his qualification, skill or ability is best applied in the services of the ministry of his election”as seen by Exhibit V8 the claimant took advantage of the offer in 1993 by the 1st defendant’s letter dated 24th November, 1993 and her inter- cadre transfer was done with effect from 1st of July, 1994 before the repeal of the decree in 1995. The extant law at that time was the Decree 43 of 1988 or the Civil Service Re-Organization Act 1988 and not the Edo State Civil Service Rules and the defendants have equally failed to prove that, that was not the law in force at the time claimant’s inter-cadre transfer was done.In fact Section 1 of the Decree/Act 43 of 1988 declares its supremacy above any other law or rules and even the Constitution. The import of which is that Decree 43 at the time of its operation put in abeyance the civil service rules.In the case of Wright v Owens Corning, 450 B.R. 541 (WD.Pa. 2011),the Supreme Court of United States held that a rule of law once announced and applied to the parties in controversy, it must be given a full retroactive effect by Courts adjudicating same in all cases still open on direct reviews and as to all events, regardless of whether such events predate or postdate the announcement of the rule.See also the case of Chevron Oil v Huson, 404 U.S 97.By Unilorin v. Adeniran [2007] 6 NWLR (Part 1031) 498CA, the vested rights of parties cannot be affected by subsequent legislation. The vested rights of the parties would be rights vested in them in law and equity when the cause of action arose.It is clear that the Civil Service Re-Organization Act 1988 or Decree 43 of 1988 is no more the extant law as at the moment, nevertheless the Decree will apply in favour of the claimant to show that her transfer was done sequel to a particular law as that was the extant law at the time the claimant transfer to the Administrative cadre was done.I so find and hold.
On the release of claimant’s promotion, the defendants’ argued that the claimant’s promotion to GL16 was not satisfactory as she failed to comply ab initio with the minimum requirement of the 1st defendant in Exhibit V9 which she reacted to in Exhibit V10 shows that the claimant had some disciplinary action to settle with the 1st defendant in regard to regularizing her 1994 inter cadre transfer but failed to so regularize it, hence her promotion was refused. DW alluded to this in her testimony before the Court that had the claimant cleared her career path, she would have been promoted to GL16 after the interview. It is on record and as reiterated earlier that she was invited for the promotion exercise scheduled on 16th September, 2009 to the post of Admin Officer I Grade level 16, however, it is also on record that after the promotion exercise, the claimant was on the 26th of October, 2009 invited by the 1st defendant to appear before the commission on the 3rd of November, 2009.with all the originals and photocopies of her credentials and letters of promotion and inter-cadre transfer since she joined the service.Also on the 27th of October, 2009 the Commission directed that the claimantshould on or before 28th of October, 2009submit all the originals and photocopies of her credentials and letters of promotion and inter-cadre transfer since she joined the service, According to her she obeyed by presenting before the commission all the requested documents to the 1st defendant’s Secretary. There is however, no evidence documentary or otherwise on record evincing that the claimant appeared before the commission or submitted the credentials to the 1st defendant as requested, rather the claimant by exhibit V12and V13 respectively, wrote to the Head of Service and the Governor, explaining her career progression and stated that she submitted photocopies of her credentials to the Secretary of the 1stdefendant protested and made passionate appeal to the 1st and 2nd defendants giving a summary of her career progression in the civil Service. Now, by exhibit RN8, the 1st defendant wrote a letter dated 11th of November, 2009 and a letter dated 17th February, 2010, that the claimant’s transfer to administrative cadre was not in compliance with the provision of the civil service rules No 02602, hence she is not entitled to be promoted rather she was demoted to GL14 on a General Executive officer cadre. It is noteworthy that as at the time claimant was converted to the Administrative cadre, Decree 43 was the extant law in the civil service as stated supra in this judgment, Section 1 thereof suspended the provision of the civil service rules and makes it subject to the decree. The import of which is that Rule No 02602 is not applicable to the claimant at the time of her conversion to the Admin Cadre. I so find and hold.
However, Sections 6 of Decree 43, the law under which claimant got converted to the Admin cadre, empowers the 1stdefendant to review any decision or determination of the Ministry in relation to the appointment, dismissal or disciplinary control of any person employed in the service of the Ministry. Meaning of which is that the 1st defendant has power to review any appointment or action of any Ministry as in the case of the claimant in this case. It is therefore obvious from this provision that the 1st defendant has the power to request from the claimant her credentials in order to determine whether or not she is qualified to be promoted to GL16.I am in agreement with the learned defence counsel that by Section 202 of the 1999 Constitution as amended, the power of the 1st defendant to perform its function cannot be questioned. The import of which is that as at 2009 when the claimant attended the interview for consideration for promotion to GL16, the 1st defendant has the statutory powers to review and consider her qualification for that position. This Court is a Court of law, Justice and equity, and in dispensing justice in a given case, the Court is expected to comb through all facts and evidence therein to arrive at a just decision, because justice must not only be done but must be manifestly seen to have been done by a reasonable man. See the case of R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, [1923] All ER Rep 233. It is germane to state here that the power of the 1st defendant to appoint, or exercise disciplinary control is sacrosanct, as it is constitutionally donated to the Commission as earlier stated, same cannot be questioned by any person. In other words as in this instance, the power of the 1st defendant to review, examine or consider whether or not claimant is entitled to be promoted to GL16, cannot be questioned by the claimant. Therefore, it is invidious 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.
I must reiterate here thatthe onus of proving that claimant is qualified to be promoted to GL16 rests on her shoulders. She also has to prove that she was actually successful in the interview conducted. This is in view of the fact that promotion of an employee by an employer is not a matter of cause, there are procedure to be followed, chief amongst which are that the employee must be qualified for promotion having submitted his aper forms for 3 years, there must be a vacancy in the position, there must be budgetary provision and estimates already provided for the year of promotion and the employer must be convinced that the affected staff is qualified and promotable for him to be promoted. I find from the record before me especially exhibit RN8, which is a reply to a letter written by the Head of Service regarding claimant’s promotion that the claimant has failed to canvas evidence before the Court evincing that she has fulfilled all the above conditions and that indeed she is qualified for promotion for merely attending the promotion interview, but the 1st defendant failed to promote her. She equally failed to convince the Court that she attended and passed the extended interview conducted by the civil service commission. There isno document on record in prove of the fact that she did infact attended the interview which was a condition precedent to her inter cadre transfer. Also, claimant failed to canvass evidence to prove that she passed her promotion interview but the defendants failed to release her promotion. It is consequent upon this that I find that the claimant has failed to convince the Court that she has been promoted to GL16 and or substantiate her claim for promotion to GL16. Accordingly, I hold that claimant’s claim (A) fails.
On her claim (B), it is the claimant’s claim that she is entitled to the arrears of salary being the difference between her last earned salary of Grade Level 15 Step 9 and the new salary of Grade level 16 Step 9 with effect from 1st July 2007 when the promotion fell due. I have held supra that the claimant has failed to prove her case for promotion to GL16, as she was on GL15 at the time of her retirement. It then goes without saying that claimant’s relief (B) is not sustainable. It is therefore, discountenanced. I so find and hold.
On claims (C), it is claimant claim that the purported reduction in her rank after retirement from Grade of Administrative Officer Grade level 15 to that of Chief Executive Officer, Grade level 14, a grade which was not in existence when the Claimant transferred from the Grade of Assistant Cadre in 1994 as invalid, null and void, and of no effect whatsoever. It is the claimant contention that sequel to her retirement on the 2nd of October, 2011 the defendant demoted her to Grade level 14 instead of grade level 16 which she is entitled to by virtue of the fact that she participated in the promotional examination on the16th of September, 2009 and hence to her it is unlawful and void. The defendants vide paragraphs 17 and 18 of their statement of defence averred that the claimant was retired on grade level 14 as Chief Executive Officer and this was based on Section 202 of the Constitution as amended.It is clear on record that the claimant by Exhibit V and RN9 dated 23rd of September, 2011 claimant notice of compulsory retirement from the 1st defendant on the 3rd of October, 2011. The defendants by Exhibit V8 dated 13th of September, 2012 conveyed its decision to the claimant that she is deemed to have retired from the state civil service on the 2nd of October, 2011 as Chief Executive Officer (GD), Grade Level 14.With regard to the claimant’ retirement, it is clear on record and also admitted by the claimant under cross examination that Exhibit V was written 10 days to the claimant’s retirement contrary to the Civil Service rules which requires that such notice ought to have been written 6 months prior to leaving the 1st defendant’s service.An appropriate question to ask is does the defendants have the right to demote the claimant from Grade Level 15 to 14? Demotion means to lower a person in rank, position, pay, orstatus; it is an offer by an employer and the acceptanceby an employee of a lower graded position with the same employer with the common consequence of a reduced wage or salary or status.Position demotion is not a remedy that is freely available to employers to use as a disciplinary measure and Courts and tribunals have to be circumspect/cautious inmaking an order for demotion. See the case of Dingoli v. Dr. Barau &Ors [2012] 27 NLLR (Pt.78) 332 CA. Demotion is part of discipline of employee on the grounds of misconduct. However, the power to demote an employee must be expressly stated in the conditions of service regulating the employment of the employee. A keen perusal of the Public Service Rules does not disclose anywhere demotion is used as a mode of discipline. It is the law which has gained notoriety that where a statute has prescribed the manner of carrying out or the doing of anything, nothing short of that prescription will suffice. See the cases of Adeniyi v Governing Council of Yabatech [1993] 6 NWLR (Pt 426) 461; Olufeagba v Abdul-Raheem [2009] 18 NWLR (Pt 9) 599. Also it is equally trite that for an effective and just determination of a contract of employment protected by statute, the provision of the statute must be satisfied as a breach thereof renders the act of termination/dismissal ultra vires the authority and hence void.Here, there is nothing evincing that the defendants have a right to actually demote the claimant as it has done in this case.There is equally no iota of evidence before this Court evincing that the claimant was alleged of committing any act of misconduct for which disciplinary procedure was followed by the defendant leading to her demotion. It is noteworthy that the 1st defendant promoted the claimant to GL 15 vide a letter dated 8th December, 2004, the claimant has received salary for 7 years on that grade level, she had worked and acted as a GL15 officer, the defendants are not allowed in law at this stage when the claimant has by their conduct, agreement have caused the claimant to believe that she is a GL15 officer and have acted upon that believe for 7 years, neither the defendants or their representative in interest shall be allowed, in any proceeding between them and the claimant to deny the truth of her being a GL15 officer at this stage. See Section 169 of the Evidence Act 2011.This is succinctly captured in the case law authority of Ladan Liman Tirwun v. Musa Ibrahim Jakkada [2013] LPELR-22795CA.It is in this light that I find that the act of the defendants demoting the claimant from Grade of Administrative Officer Grade level 15 to that of Chief Executive Officer, Grade level 14 is unlawful and thus void. It is thus ordered that the effective grade of retirement of the claimant upon retirement is Grade of Administrative Officer Grade level 15, I so hold.
It is apparent from all the above that claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows;
That the claimant is not entitled to the release of her promotion to Grade of Administrative Office, Grade I (now Grade II), Grade Level 16.
That claimant’s claim B fails.
That the purported reduction in rank of the claimant after retirement from Grade of Administrative Officer Grade level 15 to that of Chief Executive Officer, Grade level 14 is unlawful and void.
That the effective grade of retirement of the claimant upon retirement is Grade of Administrative Officer Grade level 15 step 9.
That claimant’s salary and entitlement is to be calculated on her GL15 step 9 level.
No award as to costs.
Judgment is entered accordingly.
Hon. Justice Oyewumi Oyebiola Oyejoju
Presiding Judge
