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SHOLA PETERS AFOLABI -VS- NIGERIA NATIONAL PETROLEUM

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSRICE E. N. AGBAKOBA

 

 

DATED 23RD MARCH, 2018                                              SUIT N0: NICN/ABJ/197/2016

 

BETWEEN

SHOLA PETERS AFOLABI          ……………………………………    CLAIMANT

 

AND

  1. NIGERIA NATIONAL PETROLEUM CORPORATION
  2. KADUNA REFINERY AND PETROCHEMICAL DEFENDANTS

COMPANY LIMITED

 

REPRESENTATION

  1. O. O. OLOWOKURE with ELISHA DUNIYAfor the claimant
  2. O. OKAFOR with DR. E. OLOWONONI and F. MOHAMED for the defendants

 

JUDGEMENT

  1. The claimant filed this Complaint on 31st May, 2016 with the accompanying frontloaded documents, claiming against the defendants as follows:

 

  1. A DECLARATION that the Claimant is entitled to terminal base salary and pension       benefits commensurate with his last position with the Defendants namely Deputy          Manager on scale M6.
  2. AN ORDER directing the Defendants to pay to the Claimant the sum of   N73,096,142.61 being made up of N51,811,165:22 as terminal base salary and             N21,282,977,39 as pension left unpaid upon the claimant’s retirement.
  3. Payment of the sum of N10,000,000:00 [Ten Million Naira] only as exemplary       damages for the Defendant’s blatant refusal to pay the Claimant his terminal      base salary and pension as aforesaid payment of terminal base salary and         pension as at when due and also psychological disorientation caused the             Claimant by the Defendants.

 

  1. 10% interest on the post judgment sum until final liquidation.
  2. Cost of filing this Suit.
  3. Claimant’s Case

The Claimant herein commenced this action against the Defendants jointly and severally and claimed as per paragraph 12 of his Statement of Claim the sum of N73, 096, 142.62 as the portion of his terminal base salary and portion of Pension unpaid having retired from the service of the 2nd Defendant as a deputy Manager on level M6. He also claimed N10, 000,000:00 exemplary damages, 10% interest on the post judgment sum until final liquidation and the cost of this suit.

 

  1. The STATEMENT OF DEFENCE filed on 21st November, 2016 and by order of court amended on the 16th January 2017. Wherein the Defendants deny that the claimant before his employment was appointed to the rank of Deputy Manager and state that the Claimant was promoted to the rank of Deputy Manager on scale M6 notionally with effect from 1st January, 2015 but financially with effect from 1st July, 2015.Furthermore, that the Claimant retired statutorily on 9th June, 2015 wherein he became ineligible to reap the financial benefits of the said promotion and that the said letter of 1st July, 2015 was made twenty four (24) days after the Claimant retired from service.

 

  1. Defendants admit that the Claimant retired on 9th June, 2015 but deny the Claimant’s claim that he was paid N82,000,000.00 (Eighty-Two Million Naira) as terminal benefits. That his gratuity was calculated at N72,474,708.60 (Seventy- Two Million, Four Hundred and Seventy Four Thousand, Seven Hundred and Eight Naira, Sixty Kobo) and his pension was calculated at N14,095,875.53 (Fourteen Million, Ninety-Five Thousand, Eight Hundred and Seventy-Five Naira and Fifty-Three Kobo).

 

  1. Responding to the claimant’s averment that he was entitled to N133, 811,165.22 (One Hundred and Thirty Three Million Eight Hundred and Eleven Thousand, One Hundred and Sixty – Five Naira Twenty Two Kobe as his full terminal base, Defendants averred that the Claimant was only notionally promoted to the position of Deputy Manager in the 2nd Defendant but with the caveat that he could only enjoy the financial benefits associated with the said position with effect from July, 2015 but he reached his statutory retirement in the service on 9th June, 2015 having served for 35 years with the 2nd Defendant thereby making the Claimant ineligible to claim the financial benefits associated with the said promotion.

 

  1. Defendants admit paragraph 9 of the Claimant’s Statement of Facts to the extent that the Claimant was placed on pension payroll but denies the Claimant’s claim that he is entitled to N35, 682,977.39 (Thirty — Five Million, Six Hundred and Eighty-Two Thousand Nine Hundred and Seventy Seven Naira, Thirty-Nine Kobo). The a Defendants denied paragraphs 10, 11, 12 of the Statement of Facts and in response stated that the Claimant could not have suffered specific damages because the Defendants are not indebted to him. He has been paid his gratuity and presently he is being paid monthly pension.

 

  1. Defendants also deny paragraph 14, 15, 16, 17, 18, 19, 20 and 21 of the Statement of Facts and aver to the extent that the 1st Defendant received the letters from the Claimant and his Solicitor but deny that the Claimant was underpaid.

 

  1. The Defendants stated that this action of the Claimant against the Defendants is statute barred.

 

  1. WHEREOF, the Defendants pray this Honourable court for the following reliefs;

 

  1. A DECLARATION that the Defendants are not liable to the Claimant as per the Complaint and Statement of Facts.

 

  1. A DECLARATION that the civil action filed by the Claimant is statute barred.

 

  1. AN ORDER of this Honourable court dismissing the Claimant’s suit for being frivolous, vexatious and gold digging and lacking merit.

 

  1. COST to the Defendants assessed at N10, 000,000.00 (Ten Million Naira).

 

  1. The CLAIMANT’S REPLY TO THE 15T AND 2ND DEFENDANTS’  STATEMENT OF DEFENCE filed on 16th January, 2016.

 

  1. The Claimant denying paragraphs 3 and 4 of the Statement of defence stated that there is no such thing as a notional promotion in the Claimant’s terms and conditions of employment.The Claimant in response to paragraph 5 of the Statement of defence state that the Claimant was paid the said N82,000,000:00 [Eighty two Million Naira] as terminal benefits based on negotiation between the Defendants and the PENGASSAN.

 

  1. The Claimant denying paragraph 13 of the Statement of Defence and stated that the Defendants were not interested in addressing any of the Claimant’s issues as none of the Claimants letters, appeals or his solicitor’s letters were responded to by the Defendants.

 

  1. Responding to paragraphs 16 and 17 of the Statement of Defence, claimant stated that his action against the Defendants is not statute barred as same was filed within time.

 

  1. At the trial, the claimant’s first witness was Abubakar Alzaki Abdullahi the current General Manager Corporate Headquarters of the 1st defendant who testified under a subpoena as CW1 tendered a 5 page document marked C1-C1(4)  after which the claimant testified on his own behalf as CW2;adopted his written statements on oath of 30/5/2016  and 16/1/2017which were marked C2 and C3 respectively and went on to tender, with the consent of parties five (5) other documents which were marked as exhibits C4- C8.While Sikiru Abidoye, a Compliance Officer of the defendant, testified as DW adopted is written statement on oath of 21/11/2016 which was marked D1 and proceeded to tender three (3) other documents which were marked exhibits D2-D4 (-D4(218)). Thereafter, parties filed their respective written addresses. The defendant’s final written address is dated and filed on 30th October 2017, while the claimant’s is dated and filed on 12th January, 2018. The defendant’s reply on points of law was filed on 24th January, 2018.

 

  1. The DEFENDANT’S WRITTEN FINAL ADDRESS filed on 30th October, 2016.

 

  1. ISSUES
  2. Whether the court will not give literal meaning to the provisions of Rule     020105 of        the Public Service Rules 2008 in relation to the letter dated 1st          July, 2015 (exhibit C5).

 

  1. Having regard to the pleadings, the evidence led in support and the documents      placed before the court, whether the claimant is entitled to the reliefs sought as     per his statement of facts.
  2. ON ISSUE 1

Whether the court will not give literal meaning to the provisions of Rule 020105 of the Public Service Rules 2008 in relation to the letter dated 1st July, 2015 (exhibit CS).

 

  1. Counsel submitted that it is the duty of court to confine itself to the interpretation of the rights of both parties as contained in the contract of employment between the parties. Angel Spinning & Dyeing Ltd V. Ajah (2000) 13 NWLR (PT. 685), P. 532 AT 540; Rule 020105 of the Public Service Rules 2008.

 

  1. He submitted that in a long line of decided cases the courts had reinstated the position of the law in respect of the interpretation courts are to give to statutes that do not have any ambiguity. ENGR. CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR (2007) 12 NWLR (PT.1048) P. 365; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377.

 

  1. It is counsel’s submission that the words in a statute are primarily used in their ordinary grammatical meaning or common or popular sense and generally as used as they would have been ordinarily understood. Garba v. FCSC (1988) 1 NWLR (Pt.71) 449. Per Tobi, J.S.C.(Pp.3 1-32, paras . C-C); JOE UWAGBA V. FEDERAL REPUBLIC OF NIGERIA (2009) 15 NWLR (PT. 1163) P. 91.

 

  1. Counsel argued that having applied the law governing the contents of exhibit C5 which notionally promoted the Claimant from 1st January, 2015 but financially from 1st July, 2015, the court should on the basis of the above submissions dismiss the claim of the Claimant. Again, that from 1st January, 2015, the date the alleged promotion took effect to 1st July, 2015 when the said financial effect will come into operation is less than six months which is in conflict with the provisions of Rule 020105 of the Public Service Rules 2008.

 

  1. ON ISSUE 2

Having regard to the pleadings, the evidence led in support and the documents placed before the court, whether the claimant is entitled to the reliefs sought as per his statement of facts.

 

  1. Learned Counsel submitted that the word Notional was defined by the free dictionary as being speculative or theoretical and also means not evident in reality, hypothetical or imaginary. He submitted that Notional Promotion simply means a promotion that is put off pending the happening of an event i.e, a new position being vacant for the newly promoted to fill in.

 

  1. That this also means that the person promoted must be able to occupy the said position before the person can be entitled to salaries and allowances due the said position otherwise the principle of no work no pay will be applied. He referred the court to the Indian case of K.ACHUTHAN NAIR V.STATE OF KERALA OP (KAT) NO. 61 OF 2010 (Z).

 

  1. It counsel’s contention that the letter dated 1st July, 2015 which the Claimant claimed was his promotion letter is apt in its contents as the said letter simply informed the Claimant that he passed the promotion examination and that he was only promoted notionally with effect from 1st January, 2015 and financially with effect from 1st July, 2015. Therefore, that the letter is clear, lucid and need not be given any interpretation other than what was contained therein. ENGR. CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR (SUPRA).

 

  1. Furthermore, that by the provisions of Rule 020105 of the Public Service Rules 2008, the incremental date of an officer promoted to a post in the Federal Public Service shall be 1st January of every year provided that the officer would have spent at least six months in the said post before enjoying the financial increment.

 

  1. NO WORK NO PAY RULE

 

  1. Counsel submitted that the position of the law is that where a person working for an organization does not work, the person is not entitled to be paid especially in respect of government officials who have embarked on an industrial action or like in the present case, one who is claiming remunerations for a position he did not occupy or work that he did not do.

 

  1. He argued that in the instant case, the Claimant was not assigned any position by the contents of exhibit C5 and the Claimant never worked in the said position referred to in exhibit C5, citing the Indian case of State of Haryana &Ors.Vs O.P. Gupta (1996) 7 SCC 533.

 

  1. That the court held that in the instant case that the question of entitlement to work in the promotional posts does not arise. Consequently, that the payment of arrears of salary does not arise since admittedly the respondents had not worked during that period. The court went further to cite the case of Union of India V. K.V. Jankiraman (AIR 1991 SC 2010) wherein the court distinguished the present case with Union of India’s case by stating that in Union of India’s case, the Petitioner was suspended on a criminal enquiry for no fault of his but that when he was vindicated by the said enquiry , he was entitled to payment of his arrears based on his notional promotion but in the instant case, the claim for promotion is to be considered in accordance with the rules and the promotions are to be made pursuant thereto.

 

  1. Counsel urged the court to dismiss the claim of the Claimant as he is not entitled to the payment of arrears of Deputy Manager in the 2nd Defendant as he never worked in the said position. UNION OF INDIA AND ANR V. THANGLALMUON W.P. © 7334/2012. K.ACHUTHAN NAIR V. STATE OF KERALA https://www.casemine .com/judgments/in/57b48dd8bc4 1 6857b53bb6 1 a.

 

  1. CLAIMANT’S FINAL WRITTEN ADDRESS filed on 12th January, 2018.

 

  1. ISSUE

Was the Defendant correct in law to regard the Claimant’s promotion as being ‘notional’ for the purposes of payment and calculation of the Claimant’s terminal benefits?

 

  1. Learned Counsel submitted that the 1st Defendant is a creation of statute originally created by decree No. 33 1977 as the Nigerian National Petroleum Corporation Act now to be found in Cap N123 LFN 2004. And that the Nigerian National Petroleum Corporation Act is a primary statute and in terms of hierarchy, supersedes any other law, regulation or circular as it affects NNPC, its subsidiaries and workers.

 

  1. Counsel noted that the Defendants made copious reference to the Public Service Rules in their final written address without tendering the rules in evidence or showing any nexus between the rules and any of the litigants.

 

  1. He contended that the Public Service Rules are irrelevant because individuals working for Corporations are not Civil servants governed by the Public Service rules but are Public servants governed by the statute setting up the Corporations and any subsidiary rules or regulations; as the Claimant was employed and retired by the 1st Defendant and not the Civil Service Commission. That if the Claimant’s employment was meant to be governed by the Public Service Rules he would have been employed vide a letter from the Federal Civil Service Commission as indicated by Rule 020101 of the said rules. Section 1(2); Section 4(1); Section 5 (2); Section 6 (1) (d) – (e) of the NNPC Act LFN 2004.

 

  1. Counsel argued that the NNPC Corporate Policy & Procedure Guide at page 117 paragraph 23.0 provided for the requirement for promotion and that at no time did the Defendants exhibit or show the Court any appraising guideline; statement or document that indicated that the Claimant’s promotion should not take effect until after 6 months, that one thing is clear, which is that any rules relating to promotion must appear in a documented written appraisal guideline.

 

  1. Furthermore, that the Defendants cannot read into a statute or regulation any meaning that does not exist. COTEINA INTERNATIONAL LIMITED VS CHURCHGATE NIGERIA UNITED AND ANOTHER [2010] 18 NWLR [Part 1225] pg 346 at 383 Para D.

 

  1. He submitted that it is a well know principle of Law which has been captured both in case law and statute that facts admitted need not be proved. Section 123 Evidence Act; EKPEMUPOLO VS EDREMODA [2009] 8 NWLR Pt 1142 pg 166 at 196 F.

 

  1. Counsel submitted that the Defendants arguments that the Claimants case is statute barred are incorrect. Section 12 (1) of the NNPC Act; NNPC VS ABDULRAHMAN [2006] ALL FWLR [Pt 332] page 1478 at 1490 Paras D — E.

 

  1. He pointed out that the voyage to India is unnecessary because the Court of appeal in ADETOYE VS FIIR OSHODI [2011] 14 NWLR [Pt 1267] 350acknowledges that an individual working for a statutory Corporation is in the Public Service but does not qualify as a Civil Servant regulated by the Federal Public Service Rules. Per Justice Agbo at page 382 G H.

 

  1. DEFENDANTS’ REPLY ON POINTS OF LAW filed on 24th January, 2018.

 

  1. ISSUE

Whether the Defendant was correct in law to regard the Claimant’s promotion as being notional for the purposes of payment and calculation of the Claimant’s terminal benefits.

 

  1. Learned Counsel submitted that the courts are enjoined to construe documents in accordance with the intendment of parties and that documents should be given their ordinary and plain meaning. Union Bank of Nigeria Limited & Anor V. Benjamin Nwaokolo (1995) LPELR-3385 (SC), per Iguh, J.S.C.; Per ONU, J.S.C. (P. 11, Paras. F-G).

 

  1. On the             13th February 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

 

Court’s Decision

 

  1. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether theclaimants terminal benefits were rightly computed and paid on his post of Senior Superintendent 1 instead of on the rank of Deputy Manger based on his promotion of 1st January 2015. Or whether the claimant was short changed making defendantsliable topay to the claimant the difference between the post of Senior Superintendent 1 and that of a Deputy Manager on grade level M6.

 

  1. In other words, whether the claimant’s promotion to Deputy Manager on grade level M6 had come into force on the 9th June, 2015 when the claimant retired from services as to entitle him to the reliefs claimed in this suit
  2. The defendants have argued that the claimant’s promotion of 1st January 2015 was a notional one and only took effect of after the 1st July 2015 and seeing as the claimant retired on the         9th June 2015 before the effective date of the said promotion, the claimant would only be entitled to claim the financial benefits after the 1st of July, 2015. But as the Claimant retired statutorily on 9th June, 2015 he is ineligible to reap the financial benefits of the said promotion, and that the said letter of 1st July, 2015 was made twenty four (24) days after the Claimant retired from service.

 

  1. The claimant on the other hand argued that the letter of promotion Exhibit C5 is bereft of any mention of notional benefit and that the Public Service Rules do not apply to the clamant. Citing sections 1(2), 4(1), 5(2) and 65(1) of the NNPC ACT 2004, which provides for a Board of Directors to run the affairs of the corporation, gives the corporation power to appoint staff and approve conditions of service; including payment of pensions, review the affairs of the corporation and its subsidiaries and generally do anything to facilitate carrying out the corporation’s duties; and that the 1st defendant is regulated by the NNPC Act, but that the Public Service Rules applies to Civil servants.

 

  1. To the claimant the NNPC Act made no mention of notional promotions nor did it contain any provisions for a six-month period before payment of financial benefits arguing that once an employee sat and passed the promotional exam he would be entitled to start receiving salary and the accrued terminal benefits, especially as DW1 under cross examination admitted that there was no written policy in the 1st defendant for notional promotions.

 

  1. The defendants in their reply on point of law contended that the provisions of Paragraph 23.0 cited by the claimant provided that promotions be determined upon the existence of certain conditions including merit, qualification and vacancies, the defendant went on to argue that the letter of promotion C5 and D5 which was dated 1st July 2017, well after the said retirement of the claimant and stated therein that “However based on the fact that you have retired from the service of the corporation with effect from 9th June 2015 you will not be assigned any duty, the defendant had raised the No work no pay rule.

 

  1. I will address the applicability of the Public Service Rules. I think the Claimant is confusing the old Civil Service Rules with the current Public Service Rules. The old Civil Service Rules applied only to the Civil Service; the current Public Service Rules have replaced the old rules and are more general in application to the Public Service. For instance, Rule 030425 of the Public Service Rules reiterates the prohibition of private practice but acknowledges the exemptions granted to Medical Practitioners and Law Lecturers in the Universities. Given that Law Lecturers are not Civil Servants, why did Rule 030425 reiterate the exemption given to them as to private practice? The whole of Chapter 16 of the Public Service Rules is devoted to the application of the Rules to Parastatals.(I will get back to this)

 

  1. Having said that, it is necessary to note that Public Service Rules derive from the Constitution and accordingly have constitutional force. See IDERIMA V. RSCSC [2005] 16 NWLR (PT. 951) 378 SC.

 

  1. In Chapter 16 Section 1 Rule 160101 of the Public Service Rules 2008 Edition, a parastatal is defined thus –
  2. A Parastatal is a government owned organization established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of Government.

 

  1. And ordinarily applies to the Governing Board for all parastatals, Agencies and Statutory corporations of Government, unless explicitly shown otherwise See Unreported SUIT NO. NICN/LA/464/2013 MR. CHINWEORDER CHUKWU AWA VNIGERIA SOCIAL INSURANCE TRUST FUND, delivered on the 16th March 2015

 

  1. In the preamble to the Public Service Rules 2008, the Head of the Civil Service who made the Rules states in No. 3 –Amendments;-

 

“Further amendments to these Rules shall be made through circulars, which            will be issued from time to time”.

 

  1. Now in 28th May 2010, a circular titled “Circular Review (Cancellation) of Policy on Granting of Notional Promotion”. emanated which cancelled the policy of granting notional promotion with effect from 1st January, 2011, so if the court were to be persuaded by the Defendants as to the applicability of the Public Service Rules to the instant case, bearing in mind that the position of the law is that he who asserts must prove OJOH V. KAMALU (2005) 18NWLR (PT. 958) PG. 523 AT 565 PARAS. F – G and the defendants made no effort to prove this point, the issue of notional promotion had since been jettisoned.

 

  1. Exhibit C4 and C5 the letter of promotion reproduced below; –

 

Ref: AD/PER/142

                                                                                                                                                                Date: 9th May, 1980

 

 

Dear Sir/Madam,

OFFER OF APPOINTMENT

 

I am pleased to convey to you the decision of the Management of this Corporation to offer you appointment as Asst. Process Operator …on a starting salary of N1,604.00  on the Corporation’s salary scale .16/1… The

 

The fringe benefits attached to the appointment include free medical service for you, your wife and children as laid down in the Corporation’s Conditions of Service, and the following allowances:

 

(i)            Leave Allowance: 7½% of your basic salary subject to a maximum ofN500.00.

(ii)           Housing Allowance: N10.00 per month or partly furnished quarters when available.

 

This offer is subject to your passing a medical test to be conducted by the Corporation’s Doctor and a successful Police clearance. Your appointment thereafter will be confirmed after 12 months of satisfactory probationary service.

 

You will be required to undergo some basic and on-the job training in the operations of the Refinery. You should report for duties at Kaduna Refinery on 9/6/80 The last dote you will be accepted on the training is 13/6/80

 

When assuming duty, please bring the following:

 

(i)            Four passports photos;

(ii)           Originals and photocopies of certificates of examinations passed;

(iii)          Birth Certificate or Declaration of Age;

(iv)         N.Y. S.C. Certificate (if applicable);

 

As art indication of your acceptance of this offer, please sign the attachment and return to this office before  6/6/80.

 

Yours faithfully,

for: NIGERIAN NATIONAL PETROLEUM CORPORATION

 

B.A . Toluhi

for: Manager, Personnel Services Deportment.

 

                                                                                                                                                                Ref: S11747

Date:  1st July 2015

 

ufs: MD, KRPC

 

AFOLABI/HOLA PETERS

KRPC, KADUNA

 

Dear Sir/Madam,

 

2013/2014 MANAGEMENT PROMOTION EXERCISE

PROMOTION LETTER

 

Congratulations on your satisfactory performance at the 2013/2014 Management Promotion Exercise (MPE). Please note your scores as outlined below:

 

 

Confidential

Assessment

Report Score (5)

  

Written Test

Score

(20)

 

 Appraisal

Rating/Ranking

(10)

  

COMDP

(25)

  

Oral Interview

(40)

  

 

Total Score (100%)
4.90 12.10 10.00 17.90 30.72 75.62

 

 

We are pleased to advise that the Management of the Nigerian National Petroleum Corporation (NNPC) has approved your promotion to the position of DEPUTY MANAGER, KRPC on grade level M6 notionally with effect from 1st January, 2015 and financially from 1’ July, 2015.

 

However, based on the fact that you have retired from the services of the Corporation with effect from 9th June, 2015, you will not be assigned any position.

 

On behalf of the Management of the Nigerian National Petroleum Corporation, please accept our congratulations.

 

Yours faithfully,

for: NIGERIAN NATIONAL PETROLEUM CORPORATION

 

 

ENGR. A. AKINLOSOTU

For: Group General Manager,

Human Resources Division

 

  1. -states as follows the claimant before his retirerant was appointed to the rank of Deputy Manager and state that the Claimant was promoted to the rank of Deputy Manager on scale M6 notionally with effect from 1st January, 2015 but financially with effect from 1st July, 2015.

 

  1. A notional promotion has the effect of deeming a person to have held the position to which he is notionally promoted; and it has been held that is no real difference between a deemed status and an actual status. See SAVANNAH BANK NIGERIA LTD V. AJILO & ANOR [1989] 1 NWLR (PT. 97) 305 AT 325. In this case, I find that the defendant does not seem to appreciate the inequity of notional promotion. See the case of SUIT NO: NICN/ABJ/123/2011 AMBASSADOR D. C. B. NWANNA VS. NATIONAL INTELLIGENCE AGENCY & 2ORS delivered on the 6th December 2013. Now an employee cannot be promoted to his detriment; and it cannot be a real promotion where no financial benefits accrue to the employee. AMBASSADOR D. C. B. NWANNA VS. NATIONAL INTELLIGENCE AGENCY & 2ORS (Supra} was pretty clear on these principles applicable in labour relations. The letter of promotion in that case which communicated the promotion of the claimant, was dated 20th April 2011. It stated that the claimant has been promoted to the rank of General Manager on salary scale TMF1A with notional effect from 27th September 2002 and financial effect from 1st April 2011. In other words, for close to 9 years, the claimant could not be told of his promotion; and just when the claimant was promoted he stayed for only two years on the post before being compulsorily retired vide Exhibit C4. It is this inequity that the courts frown upon and in AMBASSADOR D. C. B. NWANNA VS. NATIONAL INTELLIGENCE AGENCY & 2ORS (Supra) this inequity was held to be inapplicable in labour relations. It must be noted that in labour relations, where benefits have accrued under a contract of employment, any clause in the conditions of service which seeks to take away that benefit must be strictly construed. See EKUNOLA V. CBN [2006] 14 NWLR (PT. 1000) 292. In making the promotion notional what the defendants have done is to deny the claimant (and indeed the claimant was thereby denied) his new and improved salaries that was accruable as a result of the promotion. An act such as this on the part of the employer must be strictly construed as it seeks take away a benefit accruable to an employee.

 

  1. Section 254C(1)(f) of the 1999 Constitution, as amended, clothes this Court with jurisdiction over unfair labour practice. On the basis of this jurisdiction, this Court has held that though promotion of an employee is neither automatic nor as of right (ABENGA V. BENUE JUDICIAL SERVICE COMMISSION [2006] 14 NWLR (PT. 1000) 610), it can be denounced on by the Court if it is vindictively denied. See the case of MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103)40 NIC, where it was held that a vindictive denial of promotion as well as a vindictive suspension are unfair labour practices and so are actionable. AMBASSADOR D. C. B. NWANNA VS. NATIONAL INTELLIGENCE AGENCY & 2ORS supra held notional promotion to be inequitable. In fact, that case stopped just short of branding it an outright unfair labour practice especially as no financial benefit follows it. The fact that it is inequitable means that it approximates to an unfair labour practice. In the instant case, the defendant submitted that the letter of promotion was written 25 days after the claimant retired, informing the claimant that he has been promoted since 1st January 2015 but denied him the fruit of his promotion not only  until 24 days after his retirement, this is notional promotion  which  I hereby find an unfair labour practice. The defendants from their arguments in this case, intend to deny the claimant outright all the benefits of this promotion. A promotion for which he sat and performed satisfactorily in the 2013/2014 Management Promotion exercise MFE. It appear that the issue of a notional promotion is to enable an employer avoid paying the employee the arrears of salary due to the employee due to the employers inability to process the promotion results and incidentals timeously. The only way an employer can avoid paying an employee arrears of salary is to conduct promotion exercises as and when due and publish the result within a reasonable time. Delays of three months or more I find give rise to an unfair labour practice. Now the law is that an employer is not obliged to promote an employee; but when once granted, the employer cannot withdraw it without good cause. See MORAKINYO Vs. IBADAN CITY COUNCIL [1964] 3 NSCC 167 at 169.

 

  1. I find that the denial of the claimant of the benefit of his promotion is contrary to the position of the law, the claimant is entitled to his promotion and all the incidental benefits from the 1st of January 2015 as that was on that date on which he became, on record, a Deputy Manager M6. I so hold. The argument of the defendant as to no work no pay I find has not bearing as it was the defendant that withheld informing the claimant of his promotion on the 1st of January 2015 that had the responsibility to assigned positions and duties to the claimant but did not do so. Now the law is that a party cannot take benefit from its own misdeeds. See B.M.N.L. V. OLA ILEMOBOLA LTD. (2007) ALL FWLR (PT. 379) 1340 AT 1380; PARAS. D – E (SC). Where the Supreme Court held that “The court will not allow any person or party or body to benefit from his own wrong”. See SOLANKE V. ABED (1962) 1 ALL NLR 230, (1962) NRNLR 92; RE LONDON CELLULOID Y.O (1888) 3 CH. D 206. In this case, it was the defendant that delayed issuing the letter of promotion until after the claimant had retired, and to allow them now get away with denying the claimant his benefits thereunder or arguing that he had retired and cannot be given an assignment or he did not work is tantamount to allowing the defendants benefit from wrong doings traceable to them, EX TURPI CAUSA NON ORITUR ACTIO’.

 

  1. It is worthy of note that in labour relations, the employer is not obligated to provide work for the employee but he is obligated to pay the employee for the period he failed to provide work. See COLLIER Vs. SUNDAY REFEFREE [1901] 2 KB 647. In fact, modern labour law considers it a breach of contract for an employer to deprive an employee a substantial portion of his work  See BREACH Vs EPSYLON INDUSTRIES [1976]KR 316.

 

  1. From the foregoing, it is apparent that the claimant is even entitled to a promotion arrears being the difference in his salaries between the post of Senior Superintendent 1 and Deputy Manager M6 for the months he worked from January 2015 to the 9th of June, 2015. However this court is not a Father Christmas (Santa Claus) who gives out reliefs not sought. See UMEH v. NWOKEDI (2016) LPELR-41470(CA) Where the Court of Appeal held that “The Court is not a Father Christmas dishing out gifts unsolicited. See AYOADE VS SPRING BANK PLC (2014) 4 NWLR (PT.1396) 93 AT 132.” Per MBABA, J.C.A. (P. 16, Paras. C-D).  Reliefs 1, 2, 4, 5 succeeds.

 

  1. In facts, all the claimants reliefs succeed except relief 3 to the extent that the claimant did not show the court how he arrived at N10, 000,000 as exemplary damages for the Defendant’s blatant refusal to pay the Claimant’sterminal base salary and pension as and when due and also the incidental psychological disorientation by the Defendants, bearing in mind that, Exemplary damages may be awarded in situations where:

 

  1. Any action by servants of the Government is oppressive, arbitrary or           unconstitutional.
  2. The defendant’s conduct has been calculated by him to make a profit for himself   which may well exceed the compensation payable to the plaintiff.
  3. When exemplary damages is expressly authorized by statute.

 

  1. See N.D.L.E.A. v. OMIDINA (2013) 16 NWLR (PT. 1381) 589 @ 595 C.A (P. 616, PARAS. D-E).

 

  1. And considering that the claimant had advanced no evidence of the psychological disorientation the relief cannot be granted. Having said that, the court has found the action of the defendants amounts to an unfair labour practice. And considering also that the Court of Appeal had cautioned in UMTHMB V. DAWA [2001] 16 NWLR (PT. 739) 424 CA that every employer, including every public body, must be careful not to abdicate or abuse its powers. The Court of Appeal went on that employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances; and that the law does not permit employers to act arbitrarily. Section 19(d) of the NIC Act 2006 gives this Court the power to grant an award of compensation or damages in any circumstance contemplated by law in terms of the jurisdiction of this Court. See MR AHMED ISHOLA AKANDE V. LILYGATE NIGERIA LTD (THE LILYGATE) UNREPORTED SUIT NO. NICN/LA/209/2016, the judgment of which was delivered on 16th November, 2017 where this Court awarded the sum of N5 Million only as compensation for unfair labour practice inter alia. I am minded to award the same amount in the instant case for the unfair labour practice and denial of promotion of the claimant by the defendant. I so hold.

 

  1. The claimant’s case succeeds but only thus far; –

 

  1. It is hereby declared that the Claimant is entitled to terminal base salary and        pension benefits commensurate with his last position with the Defendants           namely Deputy Manager on scale M6.
  2. It is hereby ordered that the Defendants shall pay to the Claimant the sum of      N73,096,142.61 being made up of N51,811,165:22 as terminal base salary and    N21,282,977,39 as pension left unpaid upon the claimant’s retirement.
  3. The defendants shall pay of the sum of N5,000,000:00 [Five Million Naira]         only as Compensation under Section 19d NICA 2006 for unfair labour             practice and denial of promotion as well as the Defendant’s blatant refusal to        pay the Claimant his due        terminal entitlements.
  4. Cost of this Suit is put at N500, 000.00.
  5. All sum payable within 30 days thereafter 10% interest per annum will attach.

 

  1. This is the court’s judgment and it is hereby entered.

 

 

………….…………………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE

 

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