IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 1st June 2023                                              

SUIT NO: NICN/ABJ/35/2023

 

Between:             

 

Femi Olukoya                                                                         -                      Claimant

 

And

 

1.     National Agency for the Control of AIDS (NACA)

2.     Dr. Gambo Gumel Aliyu

(Director General, NACA)          

3.     Dr. Emmanuel Chenge

(Director of Admin, NACA)

4.     Mr. Obioha Tony

(Director Human Resource Management OSGF)

5.     Mr. Adelodun Gbenga

6.     Ebong Nsikak                                                                                 Defendants

7.     Josephine Kalu

8.     Popoola Olajitan

9.     Ndukwe Daniel

10.Gilbert Ojo

11.Helen Edet

12.James Anenih

13.Seun Adeyi

14.Nebo Innocent                   

                                   

Representation:

Godspower Eroda with O. J. Ojefia for the Claimant

C. C. Igata with C. C. Ezema for the Defendants

 

JUDGMENT/RULING

By way of Originating Summons, the Claimant instituted this suit on 10th February 2023. The questions the Claimant submitted for determination in the suit are as follows:

1.   Whether by the provisions of the National Agency for the Control of HIV/AIDS [Establishment] Act 2007, the Defendants lack the power to deny a staff of the Agency promotion who successfully wrote and scored the required scores for promotion from the post of Chief Administrative Officer CONRAISS 12 to Assistant Director Administrative CONRAISS 13 by reducing his score drastically from 71.5% to 50.5% on the premise that he ought not to have answered questions on Public Service Rules meant for Deputy Director which examination was set by the management of the Agency itself and not by the Claimant to wit, the Claimant also attained a high score upon.

2.   Whether by the provisions of Chapter 6 section 2 to section 4 of the Public Service Rules 2008 that regulates compulsory examination for Administrative Officers and Professionals and other NACA Guidelines for Appointment, Promotion and Discipline 2004 issued by the Federal Civil Service Commission which regulate the conduct of promotional examination, appointment and discipline of administrative officers, the PSR and the NACA Act or Guidelines made provisions to deny any officer of the Agency promotion on the premise that he ought not to have answered questions on Public Service Rules meant for Deputy Director which examination was set by the management of the Agency itself and not by the Claimant to wit, the Claimant also attained a high score on, question meant for a higher grade level but same cadre.

3.   Whether by the provisions of Section 2 of Rule 060203 and 060204 of the PSR 2008 the rules envisage that the Manpower Development Office [DMO], the Examination Board established under the PSR and the Senior Staff Committee of NACA, an officer or staff of the Agency that wrote the promotional examination can be denied promotion having gotten the required score needed for his promotion reduced by the Agency on the premise that he ought not to have answered questions on Public Service Rules meant for Deputy Director which examination was set by the management of the Agency itself and not by the Claimant to wit, the Claimant also attain a high score on, question meant for a higher grade level but same cadre?

 

Upon determination of the above questions, the Claimant sought the following reliefs: 

1.         A Declaration that 71.5% mark is the correct score in the NACA 2022 promotion examination by the Claimant and not 50.5% and recorded by the Defendants.

2.         A Declaration that the Agency acted ultra vires its power in the exercise of its functions with respect to various laws, rules and regulations as to compulsory examination for administrative officers and professionals when the Agency reduced the scores of the Claimant, denied him promotion from the position of Chief Administrative Officer to Assistant Director Administrative, the plaintiff having scored 71.5% from the promotional examination conducted on 7th September 2022 which score was reduced, mutilated, altered to a different score entirely thereby denying the Claimant name to be enlisted for promotion which said conduct by the agency is against Public Service Rules and unfair labour practice.

3.         A Declaration that by the provisions of NACA Establishment Act 2007, the Agency lacks power to or to exercise its discretion whatsoever to reduce the Claimant’s score for promotion in the Agency, denied and excluded the name of the Claimant for promotion from the post of Chief Administrative Officer to Assistant Director Administrative and cannot operate and proceed to perform the functions not envisaged in the NACA Act arbitrarily.

4.         A Declaration that by the provisions of chapter 6 section 2 to section 4  of the Public Service Rules 2008 that regulates compulsory examination for administrative officers and professionals and other NACA Guidelines that regulate the conduct of promotional examination of administrative officers, the Defendants have the power to reduce the scores obtained by any staff that wrote and passed a promotional examination, denied and excluded the name of a staff as envisage under the Public Service Rules discretionally or without recourse to any extant law guiding same.

5.         A Declaration that by the provisions of section 2 of 060203 and 060204 of the Public Service Rules 2008, the rules does not envisage a situation that the Manpower Development Office [DMO], the Examination Board established under the Public Service Rules and the Senior Staff Committee of NACA where an officer or staff of the Agency that wrote the promotional examination can be denied promotion, have his score reduced by the Agency on the premise that he ought not to have answered questions on Public Service Rules meant for Deputy Director which examination was set by the management of the Agency itself and not by the Claimant to wit, the Claimant also attain a high score on, question meant for a higher grade level but same cadre.

6.         A Declaration that all entitlements and benefits attached to the position of Assistant Director Administrative CONRAISS 13, after effecting the promotion of the Claimant, be given to the Claimant forthwith dating back to when the list of promoted members were released by the Agency.

7.         A Declaration that the Claimant’s promotion should take effect immediately having met the required score for promotion into the position of Assistant Director Administrative CONRAISS 13[GL 15.

8.         An Order declaring the denial of the promotion of the Claimant as wrongful and unlawful.

9.         An Order declaring the actions of Defendant as ultra vires.

10.       A Declaration that it is an unfair labour practice for the Claimant who scored 71.5% in the promotional examination of 7th September 2022 to have his score reduced to 50.5% on the premise that he ought not to have answered questions on Public Service Rules meant for Deputy Director which examination was set by the management of the agency itself and not by the Claimant to wit, the Claimant also attain a high score on, question meant for a higher grade level but same cadre.

11.       The sum of N20,000,000 being general damages against the Defendants jointly and severally for victimization, harassment, denial of promotion and reduction in rank and status of the Claimant in the Agency.

12.       Cost of action at N5,000,000.

13.       And for such further orders or reliefs as the court may deem fit to grant in the circumstances.

 

CLAIMANT’S CASE

The Originating Summons is supported with an affidavit deposed to by the Claimant and a written address. In the affidavit, the Claimant said he is a public servant with the 1st Defendant and working currently as a Chief Administrative Officer. The 1st Defendant is an agency of the Federal Government while the 2nd and 3rd Defendants are respectively the Director General and the Director of Administration of the 1st Defendant. The 4th to 14 Defendants are members of the 1st Defendant’s Senior Staff Committee who make recommendations on appointment, promotion and discipline of staff of the 1st Defendant. On 4th August 2022, a list of eligible candidates from each department qualified to sit for the NACA promotion examination 2022 was released. The Claimant was the only management level officer in the department of Administration writing the promotion examination from the post of Chief Administrative Officer CONRAISS 12 to the position of Assistant Director CONRAISS 13. The examination was set for 7th September 2022 and in the venue of the exam, the 3rd Defendant introduced the 4th Defendant as the de facto NACA Board because the President was yet to constitute the a new NACA Board. In the course of the examination, the Claimant was given 3 separate question papers for different cadres and grade levels. Some started with Assistant Director while some started with Deputy Director and he was expected to answer one each from questions on Professional [Technical] question for Chief Administrative Officer to Assistant Director; Current affairs [General] question for Chief Administrative Officer to Assistant Director; and Public Service Rules question for Assistant Director to Deputy Director. He answered each of the questions correctly but unknown to him, he answered one of the questions on PSR meant for Deputy Director Administration. The mistake was caused by the 1st Defendant who set the question and not the fault of the Claimant. Notwithstanding, he submitted an appeal on 15th September 2022 to the Senior Staff Committee [SSC] to plead that it marks and add the PSR score if same was not marked. The said letter is Exhibit GP-1.

 

After the meeting of the SSC held on 20th September 2022, he was informed that the 4th Defendant informed the SSC that the answer on PSR which the Claimant unknowingly answered was marked and the score added to the score for the other two answers on Technical and Current Affairs. The Director Administration also informed him that his total score did not reach the 60% pass mark but he disagreed on the premise that there was no way he could score less than 60%. On 17th November 2022, a letter dated 9th November 2022 from the office of the OSGF and signed by the 4th Defendant was displayed on the NACA official WhatsApp platform. The letter contains the names of the promoted officers but the Claimant’s name was omitted. For the first time, names of promoted staff were released in a letter headed of another organization and did not contain scores of the candidates. The letter is Exhibit GP-3. He received a letter dated 18th November 2022 signed by the 3rd Defendant wherein he was informed of the decision of the NACA SSC to the effect that after harmonizing his scores from all indicators for promotion, he was unsuccessful. The letter is Exhibit GP-4. He was dissatisfied with the omission of his name from the promotion list and the fact that he was said to have not met the 60% pass mark. He wrote a request to access his exam questions and answer booklet so as to ascertain his true score which was granted. On 5th December 2022 he was granted access to his answer booklet but he was not allowed to obtain certified true copy of his personal question papers. Upon perusal of his answer booklet, he noticed alterations, mutilations and reduction of his scores. His original score was 71.5% but it was reduced to 50.5%. When he discovered this anomaly, he raised alarm and requested for the issuance of his promotion letter from Chief Administrative Officer to Assistant Director Administrative in a letter dated 7th December 2022. The letter is Exhibit GP-6.

 

He received a letter dated 12th December 2022 from the 1st Defendant that the matter should be closed based on the handwritten note by the 4th Defendant who said in the note that he altered the scores to award, on compassionate ground, half of the question meant for Deputy Director which the Claimant answered. The handwritten note is Exhibit GP-7. Despite the instruction on the examination paper, the answer provided by him exceeded the required mark needed for promotion to Assistant Director Administration but he was being penalized as a result of the default created in the question paper by the Defendants. The Defendants’ move was a deliberate attempt to deny him promotion because the Defendants knew he was the only one writing the promotion exam in his department and they should not have set questions meant for a higher grade level for him or use same to punish him to hide their own error.

 

He requested for the release of his question paper and examination booklet under the Freedom of Information Act and when he was denied, he instituted Suit FHC/ABJ/CS/51/2023 before the Federal High Court. The suit is still pending. He concluded that the action of the Defendants is an unfair labour practice, aimed at promoting injustice in workplace and to prevent him from promotion. The documents mentioned by the Claimant in the affidavit, which he relied on, are marked from Exhibit GP-1 to GP-16.

 

DEFENCE

In defending the Originating Summons, the Defendants filed a counter affidavit, supported with a written address, on 24th February 2023. It was deposed to by Adeolu Aiyewumi, an Assistant Chief Legal Officer in the 1st Defendant. The deponent stated that the 4th to 14th Defendants are not members of NACA SSC. The 4th, 5th, 11th, 13th and 14th Defendants are not staff of NACA while the 9th and 12th Defendants representatives. The 4th Defendant acted as the supervising examiner and did not unilaterally alter the Claimant’s score. The answer booklets do not contain candidates’ names, and no examiner could have known the owner of the script. It was when the Claimant called for review that the supervising examiner discovered that marks were awarded wrongly by the examiner that marked the script including the question that was wrongly answered by the Claimant. The Claimant answered questions that were not for his grade level because he did not have answers to the questions that were set for his grade level. The Claimant is not supposed to answer for Assistant Director to Deputy Director but for Chief Administrative Officer to Assistant Director. The question on PSR was not meant for Deputy Director Administration but for all candidates writing for the position of Assistant Director to Deputy Director. There was no confusion on the question paper; rather, it was the Claimant who was confused and the mistake was the fault of the Claimant as confirmed by the Claimant in his appeal letter dated 15th September 2022. The letter is Exhibit D2.

 

There was a review of the Claimant’s paper at his instance and not an alteration of the Claimant’s score. It is suspected that the Claimant illegally accessed his answer booklet and altered the answer script. The Claimant manufactured and fixed marks for each question from his imagination as there were no marks attached to the question papers. The Claimant did not answer all the questions correctly and he failed so many of the questions. The Claimant’s name was not omitted from the promotion list rather the Claimant was not qualified for promotion. Only the successful candidates were shortlisted. The Claimant’s request for access was granted but he did not ask for CTC of the papers. The score of the Claimant on the answer script is 33 marks. The documents referred to in the counter affidavit of the Defendants are marked from Exhibits D1 to D9.

 

The Claimant filed a further affidavit and a reply on points of law in support of the Originating Summons on 23rd March 2023.

 

Parties filed written addresses along with their various affidavits both in support of or in opposition to the Originating Summons.

The Defendants filed a Notice of Preliminary Objection on the 24th day of February 2023. The Claimant’s Counter Affidavit to the Defendants’ NPO was filed on the 23rd day of March 2023.

Parties adopted their respective processes on the 28th day of March 2023. I have read the various addresses of counsels both in support of and in opposition to the Originating Summons and the Defendants’ Notice of Preliminary Objection. I do not see any reason to rehash their contents here. However, arguments proffered by counsels in their respective written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment. First, I will consider the Defendants’ Preliminary Objection.

 

NOTICE OF PRELIMINARY OBJECTION

On the same date the Defendants filed their counter affidavit to the Originating Summons, they also filed a motion on notice where they raised issues affecting the jurisdiction of this court to entertain this suit. The motion was heard together with the Originating Summons but by the nature of the motion, it ought to be considered first before any step can be taken to determine the Originating Summons.

 

In the motion, the Defendants sought the following prayers:

1.         An order striking out the suit as this court lacks jurisdiction to entertain the suit.

2.         An order striking out the names of the 2nd to the 14th defendants in this suit.

3.         An order striking out this suit for being an abuse of court process

4.         And for such further orders as the court may deem fit to make in the circumstances of this case.

 

The grounds for seeking the prayers are as follows:

i.          The suit is defective as the Claimant has not fulfilled the condition precedent before approaching this court.

ii.         This suit does not disclose any cause of action and amounts to abuse of court process.

iii.       This suit was commenced by originating summons but it ought to have been commenced by Complaint because the Claimant alleged fraud and raised contentious issues.

iv.        This suit is not asking this court for the interpretation of any law of document.

v.         The 2nd to 14th Defendants are agents of a disclosed principal, the 1st Defendant; and the Claimant does not have any claim against the 2nd to 14 Defendants.

 

The motion is supported with an affidavit, deposed to by Ezema Chukwuemeka Chibueze, an Associate in the law firm of Igata & Co., and a written address. In opposition to the motion, the Claimant filed a counter affidavit on 23rd March 2023 together with a written address.

 

DECISION ON THE MOTION

The first ground of the motion is that the Claimant has not fulfilled the condition precedent before approaching this court, as such, this suit is defective. In paragraphs 16 and 17 of the affidavit in support of the motion, it was averred that there is a circular no. HCSF/SPSO/ODD/649277/1 from the Office of the Head of the Civil Service of the Federation dated 15th May 2017 on seeking redress in court on purely civil service matters but the Claimant did not follow the procedure before instituting this suit. The circular was exhibited as Exhibit D. In issue 2 of the written address in support of the NPO, which was based on ground 1 of the motion, it was argued by learned counsel for the Defendants that Rule 090201 [ii] of the PSR provides that all officers should, as much as possible, exhaust all avenues provided in the PSR and circulars for redress before proceeding to court. It was submitted that it is after the Claimant follows the procedure in Section 25 and part VI [III] of the Guidelines for Appointment, Promotion and Discipline 2004 that he can approach this court. But the Claimant disregarded the provisions. The Claimant did not fulfill the conditions precedent to the institution of this suit and this robs this court of jurisdiction to entertain this suit.

 

In response, it was stated in paragraph 15 of the Claimant’s counter affidavit that the Claimant followed all procedure for seeking redress and in paragraph 1.11 of the written address in support of the counter affidavit, it was submitted that this court has jurisdiction in Section 254C [1] of the 1999 Constitution [as amended] to entertain this suit.

 

In paragraph 23 of the affidavit in support of the Originating Summons, the Claimant averred that he wrote a letter dated 16th December 2022 to the Head of Service and the Federal Civil Service Commission to intervene in the release of his promotion letter. But his desire to follow proper channel in resolving internal dispute was bungled when he received 3 separate letters on 21st December 2022. Exhibits GP 11 are letters written by the Claimant to the Head of Service and the Federal Civil Service Commission on 16th December 2022 to report the issues arising from the promotion examination and to request for intervention. The Head of Service and the Federal Civil Service Commission were yet to take action on the Claimant’s complaint when the 1st Defendant, vide the letter dated 21st December 2022, Exhibit GP 13, issued the Claimant a query for writing a complaint to the Chairman of the Federal Civil Service Commission on a matter the Claimant has been warned to put to rest. Then, Exhibit GP 15 is the response of the Federal Civil Service Commission to the Claimant dated 5th January 2023. The Claimant was instructed to forward his request to the SSC of NACA for further necessary action.

 

From the depositions of the Claimant in paragraph 23 of the affidavit in support of the Originating Summons and Exhibits GP 11, the Claimant has taken steps for his grievance to be addressed by the Head of Service and the Federal Civil Service Commission but his complaints were not attended to as seen in Exhibits GP 13 and GP 15. Thus, the Claimant cannot be accused of not following the procedure to resolve his grievance before filing this suit on 10th February 2023.

 

Counsel for the Defendants referred to Rule 090201[ii] of the PSR to support his arguments that the Claimant ought to exhaust all avenues provided in the PSR and circulars for redress before proceeding to court. The Rule provides thus:

 “Without prejudice to their constitutional rights, officers should as much as possible exhaust all avenues provided in the public service Rules and circulars for redress before proceeding to courts.”

 

This provision of the PSR is merely advisory. It has not mandated or made compulsory exploration of internal avenues before approaching the court for redress. In fact, the exploration of internal mechanism in the provision is without prejudice to the officers’ constitutional right of access to court. That is to say the right of an employee to institute action in court is not restricted by the provision. I have not seen any other provision in the PSR that mandates an officer to exhaust internal grievance resolution mechanisms as a condition precedent to institution of a suit in court. In other words, the right of an officer to institute action in court before or without invoking internal remedy, is not restricted by the provision. Therefore, the provision of Rule 090201[ii] of the PSR has not laid down a condition precedent to the institution of a suit in court by an officer in the public service.

 

I have also seen the circular no. HCSF/SPSO/ODD/649277/1 from the Office of the Head of the Civil Service of the Federation dated 15th May 2017 exhibited to the affidavit in support of the motion as Exhibit D. The circular directed civil servants to exhaust all avenues provided in the public service Rules and circulars for redress before taking purely civil service matters to court and other external bodies. The circular also stated that a disregard of the direction will be viewed as an act of misconduct and will attract appropriate sanction. This circular did not oust the right to officers to go to court. In fact, it acknowledges the fact that officers may go to court without exhausting internal procedure that is why it provided for what the sanction will be for the officers who did. The circular, just like Rule 090201[ii] of the PSR, does not lay down a condition precedent which affects the jurisdiction of this court to entertain this suit. The result is that ground 1 of the NPO lacks merit.

 

In paragraphs 6, 7, 8, 9, 10 and 11 of the affidavit in support of the NPO, it was deposed that the Originating Summons filed by the Claimant is not about construction of law or enactment and that the Originating Summons only raises issue of fact and not of law, therefore, Originating Summons is not the proper mode to commence this action. It was also averred that the Originating Summons does not disclose any cause of action against the Defendants, in addition to the fact that there is no claim against the 2nd to the 14th Defendants. These averments are in respect of grounds 2, 3, 4 and 5 of the motion. I have seen the averments in the counter affidavit of the Claimant in response to these issues. I have also heard the arguments made in the written addresses of the parties. While considering the contents of these processes of the parties, I observed that the issues raised in grounds 2, 3, 4 and 5 of the motion and in paragraphs 6, 7, 8, 9, 10 and 11 of the affidavit in support of the motion are concerned with the merits of the Originating Summons. To determine grounds 2, 3, 4 and 5 of the motion may result to determining substantial aspects of the Originating Summons in this ruling. For this reason, it is my view, and so I resolve, to consider these issues in the Originating Summons. Accordingly, the motion is struck out.

 

DECISION ON THE ORIGINATING SUMMONS

The Claimant submitted 3 questions for determination in the Originating Summons. In the 3 questions, the Claimant referred to the NACA Establishment Act 2007, Section 2 to Section 4 and Section 2 Rules 060203 and 060204 of the Public Service Rules 2008 and the NACA Guidelines for Appointment, Promotion and Discipline 2004. Perhaps, the Claimant wants this court to determine the 3 questions from these enactments or instruments.

 

The purpose of Originating Summons is principally for matters relating to the interpretation of provisions of the Constitution, enactments, agreements or any other instrument. Thus, any person claiming to be interested under an enactment, Constitution, agreement or any other written instrument may by originating summons apply to the Court for the determination of any question of construction arising from such enactment, Constitution, agreement or instrument. See Order 3 Rule 3 and 16 [1] of the Rules of this Court. Therefore, where a Claimant brings a suit by way of Originating Summons for the determination of certain questions based on construction of instruments or enactments, it is the duty of the Claimant to clearly indicate which aspect of the instruments or enactments is to be construed and then in the affidavit in support, explain how the construction of instruments or enactments relates to his case so as to enable the court properly determine the questions submitted for determination.

 

In question 1, the Claimant wants me to determine the question from the provision of the NACA Establishment Act 2007 but he did not mention the particular provision of the Act which relates to the question or which is to be construed in respect of his case. The same situation applies to question 2 where the Claimant mentioned the NACA Guidelines for Appointment, Promotion and Discipline 2004. The Claimant did not refer to any provision of that Guideline which relates to the question or which is to be construed in respect of his case. Then, in questions 2 and 3, the Claimant sought to have the questions determined from the provisions of Chapter 6, section 2 to section 4 and Section 2 Rules 060203 and 060204 of the Public Service Rules 2008. I have read the affidavit in support of the Originating Summons all over to see where the Claimant found his case on the provisions of Chapter 6, section 2 to section 4 and Section 2 Rules 060203 and 060204 of the Public Service Rules or made any averment of facts upon which the said provisions can be construed. I find no facts in the affidavit of the Claimant where he mentioned how the provisions of Chapter 6, section 2 to section 4 and section 2 Rules 060203 and 060204 of the Public Service Rules supported his case or the questions he submitted for determination.

 

I have also examined the written address in support of the Originating Summons. I expected counsel for the Claimant, who framed the questions for determination in the Originating Summons, to at least set out the relevant provisions of the NACA Establishment Act 2007, NACA Guidelines for Appointment, Promotion and Discipline 2004 and the PSR referred to in the questions and then make arguments to show how they relate to the case of the Claimant or to illustrate their relevance to the questions for determination. This was not done. There was no mention at all of the NACA Establishment Act 2007 or the NACA Guidelines for Appointment, Promotion and Discipline 2004 or the PSR in the written address. Rather, counsel for the Claimant was busy making arguments on the provision of Section 254C[1] of the 1999 Constitution [as amended], Section 7 of NIC Act, ILO Convention and unfair labour practice. Incidentally, Section 254C[1] of the 1999 Constitution [as amended], Section 7 of NIC Act, ILO Convention and the principle of unfair labour practice were not what the Claimant submitted for construction in the 3 questions of the Originating Summons.

 

In view of these lapses, perhaps, it is the intention of the Claimant that it is my duty to examine and interpret all the provisions of the NACA Establishment Act 2007, the NACA Guidelines for Appointment, Promotion and Discipline 2004 and the PSR to decide his case. That duty is that of the Claimant to conduct his case properly and he cannot dump his responsibility on the court.

 

The result of my consideration of the Originating Summons is that the Claimant’s case is not for construction of any instrument or enactment or document. From his affidavit evidence, the case is principally one based on facts. The complaint of the Claimant in the case is to be determined on facts and not on construction of any instrument or enactment. The Claimant did not present me with the required materials to determine the questions in the Originating Summons. The result is that the Originating Summons is not competent and therefore bound to fail.

 

Notwithstanding the above view, I intend to go further to consider the facts of the case to determine the questions in the Originating Summons. I am doing so in the interest of hearing the case of the Claimant on merit.

 

The 3 questions in the Originating Summons have the same implication. The questions, put together, ask the simple question whether the Claimant scored the required score in the NACA promotion examination 2022 and entitled to be promoted from the post of Chief Administrative Officer to the position of Assistant Director.

 

The case of the Claimant is that he was among those listed to sit for the NACA promotion examination 2022. He was writing the promotion examination from the post of Chief Administrative Officer to the position of Assistant Director. The examination held on 7th September 2022 and in the course of the examination, he was given 3 separate question papers for different cadres and grade levels. Some started with Assistant Director while some started with Deputy Director and he was expected to answer one each of the questions on Professional [Technical] question for Chief Administrative Officer to Assistant Director; Current affairs [General] question for Chief Administrative Officer to Assistant Director; and Public Service Rules question for Assistant Director to Deputy Director. He answered each of the questions correctly but unknown to him, he answered one of the questions on PSR meant for Deputy Director Administration. After realizing the mistake, he submitted an appeal on 15th September 2022 to the Senior Staff Committee to plead that the SSC marks and add the score for the PSR question to his score. The letter is Exhibit GP-1. The Claimant said he was later informed that, although his answer on the PSR question which he unknowingly answered was marked and the score added to the score for the other questions for his grade level, his total score did not reach the 60% pass mark.  On 17th November 2022, a letter containing the names of the promoted officers was displayed on the NACA official WhatsApp platform but his name was omitted. He also received a letter dated 18th November 2022 wherein he was informed of the decision of the NACA SSC to the effect that after harmonizing his scores from all indicators for promotion, he was unsuccessful. The Claimant said upon his request, he was granted access to his exam questions and answer booklet so as to ascertain his true score. Upon perusal of his answer booklet, he noticed alterations, mutilations and reduction of his scores. His original score was 71.5% but it was reduced to 50.5%. The Claimant insisted he should be promoted from Chief Administrative Officer to Assistant Director Administrative because the answer he provided exceeded the required mark needed for promotion to Assistant Director Administrative.

 

The defence of the Defendants is that, in the promotion examination, the Claimant answered questions that were not for his grade level. The question on PSR was meant for candidates writing for the position of Assistant Director to Deputy Director, therefore, the Claimant, who was writing the exam for the position of Chief Administrative Officer to Assistant Director was not supposed to answer the question on PSR meant for the position of Assistant Director to Deputy Director. After the promotion examination, the Claimant called for review of his answers and that was when the supervising examiner discovered that marks were awarded to the question that was wrongly answered by the Claimant. The Claimant’s paper was reviewed and not that there was an alteration of the Claimant’s score. The score of the Claimant on the answer script is 33 marks and he was not qualified to be promoted as only the successful candidates were shortlisted.

 

It is not in dispute that the Claimant wrote the NACA promotion examination 2022 for promotion from the position of Chief Administrative Officer to Assistant Director. It is not in dispute that the question on PSR was a question meant for the candidates writing the examination for promotion from Assistant Director to Deputy Director but the Claimant answered that question.

 

When the Claimant got access to his answer booklet, he said what he saw in it is that his original score was 71.5% but it was reduced to 50.5%. According to the Defendants, when the Claimant called for review of his papers the supervising examiner discovered that marks were awarded for the question that was wrongly answered by the Claimant. The score was accordingly reviewed and not that the score was altered. From the evidence, I also find that it is not in dispute that it was the Claimant who wrote the letter dated 15th September 2022, Exhibit GP-1, to the 1st Defendant to request that his answer to the PSR be marked and recorded for him. It is also not in issue that after the Claimant’s letter, the score for the PSR question wrongly answered by the Claimant was reduced from the Claimant’s score. It is further not in dispute that the result of the review is that the Claimant scored less than 60% and he was consequently not promoted.

 

Now, the grievance of the Claimant is that the Defendant ought to have marked his answer to the question on PSR and count same as part of his overall score. According to the Claimant, if that was done, he would have scored more than the pass mark and he would have qualified to be promoted. In order to justify why the Defendant ought to record the score for the answer on PSR for him, the Claimant blamed the Defendant for his mistake in answering the question on PSR. According to him, the mistake was caused by the 1st Defendant who set the question because the 1st Defendant knew he was the only one writing the promotion examination in his department and it should not have set questions meant for a higher grade level for him. I have seen the letter the Claimant wrote to the 1st Defendant after the examination to request that his answer to the PSR be marked and recorded for him, which is Exhibit GP-1. In explaining how he got to answer the PSR question not meant for his grade level, the Claimant stated in the 3rd and 4th paragraphs of the letter that he “unknowingly” answered the question and that he “take responsibility for the error”. There was nowhere in the letter the Claimant blamed the Defendants for his mistake in answering the question on PSR. In fact, he admitted it was his own error. It is therefore an afterthought for the Claimant to now blame the Defendants in this suit for his error.

 

Without a doubt, it was the Claimant’s error when he answered the question on PSR not meant to be answered by him. Can the Defendants be blamed for reviewing the marks of the Claimant and reducing the score for the question wrongly answered by the Claimant from it? I do not think so. Even if the question was initially marked, it was the Claimant who exposed his error when he wrote Exhibit GP-1. When the Defendants realized that the Claimant answered a question he ought not to have answered, they were right to have reviewed his score and deduct the score for the wrongly answered question.

 

Let me also emphasise that the questions to set for promotion examination, the instructions and procedure for writing the examination, the marking and scoring of candidates’ answers are the duties of the employer. The court has nothing to do in respect of these matters. The court cannot take over the marking of the answers to the questions. The court can only intervene when the Claimant meets all requirements for promotion but denied promotion, which is not the case here.

 

Let me add that by Rule 020701 of the Public Service Rules, all officers who are eligible for promotion are entitled to take the promotion examinations and shall pass before being considered for promotion. Promotion is also to be made strictly on the basis of competitive merit from amongst all eligible candidates. Therefore, promotion is not a right but a privilege which is to be earned, and an employer cannot be compelled to promote his employee. See NWOYE vs. FAAN [2019] LPELR-46402[SC]. The Claimant is aware that his name was not among the promoted officers and he was informed that the reason is that he scored less than the 60% pass mark. The Claimant is therefore not entitled to be promoted in the 2022 promotion examination. He was not denied promotion as alleged by him.

 

Consequently, I resolve the questions for determination against the Claimant. His case lacks merit and it is hereby dismissed.

 

There are two other applications I am to determine in this suit. The first one is the Claimant’s motion for interlocutory injunction filed on 20th February 2023 seeking an order restraining the Defendants from conducting the 2023 promotion examination. There is no basis to consider this motion any longer in view of the outcome of the Originating Summons. The motion is struck out. The second motion is the Defendants’ motion filed on 17th March 2023 seeking an order setting aside or vacating the interim order made on 21st February 2023. I have considered the motion and seen merit in it. The interim order made on 21st February 2023 is hereby vacated.

 

I make no order as to cost.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge