Promotion in Public Service a ‘Privilege, not a Right’ – Court

Industrial Court

His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court of Nigeria, sitting in Abuja, on Friday 15th March 2019 in a judgment dismissed the suit filed by Mrs. Nkoyo W. N. Onnoghen(claimant) against Hon. Minister, Federal Ministry of Health and 2 others for failure to prove her case.

Delivering the judgment, the court also held that promotion in the public service or civil service either of federal or state is not automatic, that it must be earned upon satisfying all the laid down conditions. It is not a right but a privilege that has to be earned.

In anticipation of favorable resolution of the questions asked for determination via originating summon, the claimant sought against defendant among others; AN ORDER directing the defendants jointly and or severally to with immediate effect cause the claimant to be promoted to Grade level 17 and or to issue to the claimant with immediate effect her promotion letters to Grade level 17.

Likewise, AN ORDER compelling, directing and/or mandating the defendants jointly and or severally to cause to be computed for payment and to pay over to the claimant with immediate effect her pension and gratuity from June, 1982 being the notional date of her first appointment to June 2017 when she is deemed to have retired.

And, the sum of Two Hundred Million Naira (N200,000,000.00) as general and aggravated damages.

Counsel submitted that there is no dispute that she was an employee of the  Federal Min. of Health -2nd defendant, but her first appointment date was initially recorded by the defendants to read 10th September 1975 which presumably led to her salaries, allowances, and pensions to be stopped prematurely before her retirement age.

Prior to this development, the claimant had proactively written a letter dated 23/9/2008 for her notional date of the first appointment to be changed from 10th September 1975 to 21/6/1982 when she actually joined the Federal Civil Service and the Federal Civil Service Commission -3rd defendant in response approved her request and approved her notional date to read 21/6/82.

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Counsel submitted that it is disturbing that despite the fact that the 1st and 2nd defendants having changed the notional date of the first appointment to reflect 21/6/82, they have refused to pay the claimant her salaries and allowances since October 2010 when it was stopped, her due promotion up to grade level 17 from 2011 and her pension and gratuity from 21/6/82 to 20/6/17 having duly retired.

Counsel submitted that the claimant is entitled to her salaries, allowances, and promotions lost through willful refusal of the 1st and 2nd defendants to act on approval of her application for change of notional date and as such same should be duly calculated and paid to her.

In the counter-affidavit, the 1st and 2nd defendants stated that they are not in charge of anything to do with salaries, promotions, retirement, pension, and gratuity or retirement in the civil service that they have complied with every directive given to them by the Head of Service of the Federation.

The 3rd defendant admitted being in charge of appointment, promotions and discipline of Federal Civil Servants and its decisions on those matters is final and binding on federal ministries that the Constitutional mandate of the 3rd defendant does not include payment of salaries, allowances, pension and gratuity of the claimant or that of any civil servants except those employed and posted to the 3rd defendant’s office.

Counsel formulated for determination whether the Claimant’s suit discloses any reasonable cause of action against the 1st and 2nd defendants?

Counsel contended that where a party fails to disclose any cause of action in a suit, no further evidence shall be required to determine the action against such party urged for the dismissal of the case.

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After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice Sanusi Kado held that there is a reasonable cause of action disclosed by the claimant against the 1st and 2nd defendants and further expressed thus;

“The law is well settled that for a party to succeed in declaratory reliefs he must succeed on the strength of his evidence and not on mere admission or weakness of the defence.

“All the exhibits tendered in this suit by the claimant were all photocopies. It is pertinent to note that the claimant has not given an explanation as to why the original exhibits were not brought before Court as required by law.

“The absence of evidence establishing whether claimant has been working from October 2010 to 206/17, when she is deemed to have retired from service is fatal to the claimant’s case for payment of salaries and allowances.

“It is baffling that the claimant who is claiming salaries and allowances, pension and gratuity could not produce even a single pay slip to show what she is being paid as her salaries and allowances as well as her pension.

“The claimant did not specifically plead the quantum of money referred to as her entitlements. The absence of particularization of this claim has rendered the relief vague and uncertain.

“I am inclined to agree with counsel for the 3rd claimant that promotion in the public service or civil service either of federal or state is not automatic it must be earned and upon satisfying all the laid down conditions. It is not a right but a privilege that has to be earned.

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“From the finding in this case the claimant failed to prove her case to entitle her to judgment. In the circumstance, the claimant’s case failed and is accordingly dismissed.”


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