Color

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE

ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR, bpa PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 11 November 2025                                                          

SUIT NO. NICN/ABJ/455/2024

BETWEEN

Dr Christopher Vershima Ashekaa - Claimant

 

AND

  1. National Assembly Service Commission
  2. Clerk to the National Assembly                              -                                                                                    Defendants

 

REPRESENTATION

Dr D. O. Penda, with F. A. Anwuna, for the claimant.

Abdul Ibrahim SAN, with A. M. Lawal, N. Gbahabo and E. A. Farouk, for the 1st defendant. Charles Yoila, for the 2nd defendant.

 

JUDGMENT

INTRODUCTION

  1. The claimant asks whether the fact of notional promotion can be taken into account when computing eight years for purposes of the 8-year tenure rule under the Public Service Rules (PSR) 2021. And if the answer goes his way, he wants this Court to grant him the five reliefs he prays for. The 8-year tenure rule is one that enjoins Directors and Permanent Secretaries not to stay on the post for more than 8 years; and so must retire at the end of 8 years on the post or upon attaining the retiring age of 60 years, which ever comes first. The 8-year tenure rule was acknowledged by the Court of Appeal in Olusa v. NICO & ors [2022] LPELR-57459(CA). This Court has delivered a number of decisions on varying aspects of the 8-year tenure rule, such as:
    • Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit

N. NICN/ABJ/123/2011, the judgment of which was delivered on 16 December 2013

  • whether notional promotion can be factored in computing 8 years for purposes of the 8-year tenure rule.
  • Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor

[2014] 43 NLLR (Pt. 135) 240 — whether the 8-year tenure rule has the force of law and so is constitutional.

  • Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor

unreported Suit No. NICN/LA/74/2014 the judgment of which was delivered on 30 January 2015 — whether the provisions dealing with leaving of service under the Public Service Rules, under which is the 8-year tenure rule, apply to parastatals.

  • Elizabeth Modupe Oyeduntan v. West African Examinations Council (WAEC) & anor

unreported Suit No. NICN/LA/534/2013, the judgment of which was delivered on 2


 

February 2015 — whether WAEC comes under the policy directives of Government as to make the 8-year tenure rule applicable.

  • Mr Chinweorder Chukwu Awa v. Nigeria Social Insurance Trust Fund [2015] 60

NLLR (Pt. 211) 544 — whether Nwanna was not wrongly decided in terms of the application of the 8-year tenure rule.

  • Mrs Ramatu T. Shehu v. Judicial Service Committee of the Federal Capital Territory &

anor unreported Suit No. NICN/ABJ/24/2018, the judgment of which was delivered on 3 March 2020 — whether the 8-year tenure rule applies to the Federal Capital Judiciary.

  • Mr Victor Omotosho Ekundayo v. Federal Inland Revenue Service (FIRS) & ors

unreported Suit No. NICN/ABJ/82/2021, the judgment of which was delivered on 23 February 2022 — whether the suspension of “the Tenure Policy in the Federal Civil Service” applied to the Federal Inland Revenue Service (FIRS).

  • Alo William Nwankwu v. Head Of Civil Service of the Federation & anor unreported

Suit No. NICN/ABJ/321/2023, the judgment of which was delivered on 21 May 2024

  • whether the tenure policy in the Federal Civil Service remains suspended under the 2021 Public Service Rules.

 

  1. The question the claimant wants answered was posed in the originating summons he filed on 9 December 2024. The question is:

Whether from the letter and spirit of Rule 020909 of the Revised Public Service Rules 2021, applicable to the defendants, the fact of notional promotion can be factored in for the purpose of computing eight (8) years in the application of the eight (8) year compulsory retirement rule applicable to the claimant as a Director.

 

  1. The grounds upon which the claimant’s case is based are:
  2. The claimant is a staff of the defendants, having been employed into their service on 2/11/1992.
  3. The claimant was due for promotion to the post of Director in 2017.
  4. The 1st defendant however promoted the claimant to the post of Director (Legislative) on 28/6/2018.
  5. The claimant’s promotion letter dated 3/7/2018 was backdated to take effect from 1/1/2017 but his financial benefits to the post of Director (Legislative) were to take effect from 1/1/2018.
  6. The financial benefits of the claimant’s promotion having commenced from 1/1/2018, the computation of his retirement date in line with the Revised Public Service Rule, 2021 ought to have commenced from the date his financial benefits as a Director took effect.
  7. By letter dated 8/10/2024, the 1st defendant wrote to the claimant notifying him that his retirement date as one of her Directors is 1/1/2025 instead of 1/1/2026.
  8. Earlier on, the claimant and one of his colleagues, Maring Habiba Ahmed Esq. had jointly notified the defendants on the interpretation and application of the Public Service Rule as it affects them but the defendant never acted on it.


 

  1. The defendants are bent on pre-maturely retiring the claimant when the claimant still has more than one year in service before his retirement due date.
  2. This Honourable Court needs to intervene timeously to prevent the defendants from prematurely retiring the claimant from service.

 

  1. The reliefs the claimant seeks are:
  2. An order of declaration that 1/1/2017 being the notional promotion date of the claimant as a Director cannot be factored in for the purpose of calculating eight (8) years with respect to his compulsory retirement date as provided under Rule 202909 of the Revised Public Service Rules 2021, applicable to the defendants.
  3. An order of declaration that 1/1/2018 being the actual promotion date of the claimant as a Director is the correct and lawful date to be factored in for the purpose of computing eight (8) years with respect to his compulsory retirement date from service as provided under Rule 020909 of the Revised Public Service Rules 2021, applicable to the defendants.
  4. An order of declaration that the claimant’s due date of compulsory retirement from the service of the defendants a Director in line with Rule 020909 of the Revised Public Service Rules, 2021 applicable to the defendants is 1/1/2026 and not 1/1/2025.
  5. An order of this court setting aside the retirement notice with Reference No. NASC/ SS/PF/195 and dated 8/10/2024 issued by the 1st defendant and served on the claimant.
  6. An order of perpetual injunction restraining the defendants either by themselves, servants, surrogates, agents or howsoever called from compulsorily retiring the claimant from service at any other date other than or earlier than 1/1/2026.

 

  1. In support of his originating summons, the claimant filed an affidavit with 6 exhibits, and written address.

 

  1. In opposition, the 1st defendant filed an amended counter-affidavit with one exhibit and a counterclaim, as well as a written address. To this, the claimant filed a further affidavit and a reply on points of law.

 

  1. The 2nd defendant on his part filed a counter-affidavit (no exhibit was attached) and a written address. To this too, the claimant filed a further affidavit and written address.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The adopted the question he posed in the originating summons as the issue for determination. To the claimant, his case is that he is a staff of the defendants. That from his record of service with the defendants, he is not yet due for retirement by years of service rule or biological age rule or even by 8 year compulsory retirement rule applicable to Directors under the Revised Public Service Rules 2021, referring to paragraphs 1, 2, 5 and 6 of affidavit in support and Exhibits CVA1 and CVA1a attached.


 

  1. Furthermore, that having served the defendants meritoriously, he became due for promotion to the post of Director on 1/1/2017. Unfortunately, the promotion was not given to him on the due date. Instead, the 1st defendant by Exhibit CVA2 dated 3/7/2018 promoted him to the post of a Directed but backdated its effective date to 1/1/2017 while the actual financial benefits of the promotion took effect from 1/1/2018. In other words, he was notionally promoted as Director on 1/1/2017 while his actual promotion became effective on 1/1/2018, referring to paragraphs 7, 8, 9 and 10 of the affidavit in support as well as Exhibits CVA2 attached.

 

  1. That by the Revised Public Service Rules, 2021, which the defendants domesticated as per Exhibit CVA3 for use within their service, the claimant as a Director and other Directors in the service of the defendants shall compulsorily retire upon serving eight years on the post. That it is imperative to note that the provision for compulsory retirement of Directors upon serving eight years on the post is provided under Rule 020909 of the Revised Public Service Rules, 2021, which is in pari materia with “Rule 028109 (vi)(a)” of the defunct Public Service Rules, 2008.

 

  1. The claimant went on that the intendment of Rule 020909 of the Revised Public Service Rules, 2021 is that only Directors who have actually served eight years ‘on the post’ are liable to retirement compulsorily. That service ‘on the post’ for all intent and purpose means service attracting financial benefits on the post. That a promotion to a post which does not attract any financial benefits thereto is a notional promotion whereas, whereas that which attracts financial benefits is an actual promotion. Therefore, a person whose promotion to a post attracts no financial benefits cannot be said to be serving on that post.

 

  1. The claimant then submitted that for the 8-year compulsory retirement rule enshrined in the Public Service Rules to apply on any Director, it is the date of his actually promotion that would be reckoned with and not the date of his notional promotion, citing the unreported case of Ambassador D.C.B. Nwanna v. National Intelligence Agency & ors (Suit No. NICN/ABJ/ 123/2011) delivered on 16/2/2013, where this Court was faced with the issue of determining the legal implication of notional promotion on the calculation of 8-years for the application of the 8- year compulsory retirement rule provided under “Rule 02810 (iv)(a)” of the Revised Public Service Rules 2008 (which is in pari materia with Rule 020909 of the Revised Public Services Rules 2021. That this Court at page 30 of the judgment held as follows:

The claimant was promoted notionally in 2004 (both parties are agreed on this fact) with no financial benefits. The actual promotion with financial benefits was in 2006…Here, I am in agreement with the submissions of the claimant that for the 8-year tenure policy to apply, it must be that the Director has “served eight years in the post”.

 

This being case, I hereby find and hold that the 8-year tenure policy applies only to Directors who have actually spent eight years on the post, not notionally as provided for in Rule 020810 (iv)(a) of the Public Service Rules (2008).

 

  1. The claimant continued that the actual promotion of the claimant when he began to serve on the post of Director (Legislative) was from 1/1/2018 and not 1/1/2017, being the date of his


 

notional promotion. In other words, the date to be reckoned with in calculating the 8-year compulsory retirement rule applicable to the claimant is 1/1/2018 and not any other date. That calculating from this date, the claimant would clock 8-years on the post as Director (Legislative) on 1/1/2026. Thus, he would only become due for compulsory retirement as a Director on 1/1/2026 and not any date earlier.

 

  1. That in a similar unreported case, Chinweorder Chukwu Awa v. Nigeria Social Insurance Trust Fund (Suit No. NICN/LA/464/2013 delivered on 16/3/2015), this Court was yet again confronted with the same issue on whether notional promotion can be rightly factored in for the purpose of calculating eight years in the application of the eight (8) year tenure rule for Directors. That this Court while reiterating its earlier position had this to say:

Nwanna held notional promotion to be inequitable. In fact, Nwanna 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 that regard, I hereby uphold the reasoning in Nwanna which led to the conclusion that notional promotion cannot be factored in for purpose of calculating 8 years in the application of the 8-year tenure rule under Rule 020810 (iv)(a). For the umpteenth time, Nwanna is hereby reaffirmed as I see no reason to disturb the reasoning and holding therein.

 

  1. To the claimant, the above decisions have not been upturned by any superior court. That this Court too as shown above did refuse an invitation to overrule itself. In effect, therefore, these decision by purity of reasoning apply mutatis mutandis to Rule 020909 of the Revised Public Service Rules, 2021. Surprisingly, that the claimant vide Exhibits CVA4 and CVA5 brought this extant position of the law to the attention of the defendants who may have been legally and factually ignorant. Yet, the defendants remained recalcitrant. That without any legal justification, the defendants proceeded to serve Exhibit CVA6 on the claimant requiring him to prematurely retire from service. As if that is not enough, that they also caused the claimant to be added to their WhatsApp platform created for their retired staff, referring to paragraphs 11 - 25 as well as Exhibits CVA3, CVA4, CVA5 and CVA6 attached.

 

  1. It is the further submission of the claimant that the attitude of the defendants towards the claimant even when they became aware of the correct position of the law smacks of insolence and utter disrespect to the judicial pronouncements of this Court. That by section 287(3) of the 1999 Constitution, the defendants are under a constitutional obligation to enforce and apply the judicial pronouncements of this Court especially as they relate to labour matters.

 

  1. A fortiori, the claimant urged this Court to resolve the lone question for determination in favour of the claimant. That his case is in all fours with Ambassador D.C.B Nwanna v. National Intelligence Agency & Others (supra) and Chinweorder Chukwu Awa v Nigeria Social Insurance Trust Fund (supra). Accordingly, the claimant urged the Court to resolve the lone issue in his favour and grant all the reliefs he seeks.


 

THE 1ST DEFENDANT’S SUBMISSIONS

  1. The 1st defendant also formulated a sole issue for determination, namely:

Whether or not Rule 020909 of the revised public service Rules 2021 is applicable to the Claimant who has been complacent with the terms of his promotion and having enjoyed the position of a Director for 8 years inclusive of his notional promotion period?

 

  1. To the 1st defendant, the basis of the claimant’s claim is that he is being retired prematurely despite the fact that his promotion letter dated 3rd July 2018 stated clearly that his promotion became effective, albeit notionally, on 1 January 2017. That Rule 020909 of the Revised Public Service Rules 2021 clearly states that: “Director or its equivalent by whatever nomenclature it is described in MDA’s shall compulsorily retire upon serving 8 years on the post…” That this provision does not decipher what sort of Director it applies to. Therefore, that it is a blanket provision that begins to count once an officer’s position as a Director becomes effective. That it is trite that statutes that are not ambiguously written should be given their literal meaning.

 

  1. The 1st defendant went on that the claimant is a Director whose position falls under the purview of the rule stated above. Therefore, he is caught by the Public Service Rule which requires the compulsory retirement of persons who have been in the position of Director for 8 years.

 

  1. That a simple arithmetic calculation would reveal that the period between 1 January 2017 and 1 January 2025 is 8 years. That this revelation opens up the claimant to a compulsory retirement by the tenure policy. It is the 1st defendant’s submission that from the date when the claimant was offered notional promotion till date, the claimant has not raised any issue or challenged the notional promotion. That the claimant has benefited from the title/post of a Director. That it is safe to state that he has been aware that his years in office as a Director started to count from 2017 since 2018 and has conveniently never raised any issues until now.

 

  1. To the 1st defendant, Rule 010102 of the Revised Public Service Rules 2021 states as follows: “These rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of service or any other law applicable to these officers are concerned”. That the import of this rule is that public servants are subject to the public service rules, conditions of service and any other law applicable to the officers as long as they are not inconsistent with the 1999 Constitution. In addition, that the claimant is subject to the Conditions of National Assembly Service Staff Regulations 2020 wherein section 7, Regulation 02706(b) states thus:

When on officer is granted notional promotion he will not be entitled to the salary of the higher post until he actually assumes duty in the post but the effective date of the notional promotion shall be used in determining the point at which the officer enters the new salary scale, his future increment date and seniority in the grade (underlining is the 1st defendant’s).


 

  1. The 1st defendant continued that even if an employee cannot be promoted to his detriment and it cannot be real promotion where no benefit accrues to the employee, it must be emphasized that promotion is not just about financial benefit as it also has to do with seniority in rank and position which elicit privileged treatment. Therefore, the conditions of service of the 1st defendant has given cognizance to notional promotion and the claimant has enjoyed it. That it will be inequitable, having enjoyed some benefits, to deny the said benefits because it does not attract direct financial backing. That labour relations are not just about financial benefits. It also has to do with perquisites, seniority and standing in line of succession.

 

  1. That a person who has enjoyed the benefits of a particular act or situation is estopped from turning around and questioning the legality of same when his retirement becomes due. That a person is not allowed to approbate and reprobate at the same time, citing Adegbanke v. Ojelabi [2023] 4 NWLR (Pt. 1875) 481at 531.

 

  1. The 1st defendant went on that having served as a Director for all these years in accordance with his appointment letter without ever questioning any part of it and receiving the benefits of same, the claimant cannot at this point when his retirement is due begin to make a turnabout that the terms of the appointment is unfavourable or that it is premature to process his retirement, referring to Umezinne v. AG, Federation [2019] 11 NWLR (Pt. 1683) 358 at 377. That “equity favours the vigilant not the indolent”. That assuming the claimant did not enjoy any benefit during the period of notional promotion, he would have raised an issue within reasonable time. And so, if his promotion in 2017 offered him nothing as he claims, he should have complained, citing Akinyemi v. Odua Inv. Co. Ltd [2012] 17 NWLR (Pt. 1329) 209 at 240.

 

  1. To the 1st defendant, NICN/ABJ/123/2011 (Nwanna v. NIA and 2 ors) and NICN/LA/ 464/2013 (Awa v. NSITF) relied upon by the claimant do not have regulation 02706(b) in that case; therefore, a case is an authority for the peculiar facts that it decided, citing Okeke v. Uwaechina [2022] 10 NWLR (Pt. 1837) 173 at 192. That this Court in embarking on its duty of judicial interpretation must also take into cognizance the provisions of the National Assembly Commission which recognize notional promotion in its Conditions of Service. That the interpretation of the Public Service Rules should not be isolated without the Conditions of Service, which was the primary guide that governed the relationship between the parties ab initio.

 

  1. More so, that unlike cases relied upon by the claimant, there was no need for any ratification to be carried out in the instant suit and the claimant has not disclosed any perception of malicious intent in his promotion. Therefore, the cases cited by the claimant should be discountenanced as they differ from the instant suit. That the claimant in the instant suit was legitimately promoted and enjoyed all the perks, advancements and perquisites of his position.

 

The 1st Defendant’s Counterclaim

  1. On its counterclaim, the 1st defendant pointed that the pertinent question to ask at this junction is whether an employee who was granted promotion on retrospective basis can enjoy


 

financial benefit when he has not actually performed that job. The 1st defendant answered in the negative, citing Skye Bank Plc v. Adegun [2024] 15 NWLR (Pty. 1960) 1 at 46, where Ogunwumiju, JSC held thus: “The law is on a firm pedestal that a servant would only be paid for the period he served his master”.

 

  1. To the 1st defendant, the period from 1 January 2018 to 28 June 2018, the claimant, who is a public servant, did not perform his duties and an employee who has not performed duties cannot claim for salaries not earned. In the same vein, that the 1st defendant is not unaware of Agricultural and Allied Workers’ Union of Nigeria and Benue State Agricultural and Rural Development Authority Suit No: NIC/16/89, “a former decision of the National Industrial Court wherein the Court stated that she will not order workers who claimed under the policy stated in the case to refund their claims because asking them to do so will be punitive for an irregularity for which they cannot be held responsible”. That based on the doctrine of stare decisis, lower courts are to follow the decisions of superior courts of record.

 

  1. The 1st defendant then urged the Court to dismiss this case as lacking in merit.

 

THE CLAIMANT’S REPLY ON POINTS OF LAW TO THE 1ST DEFENDANT’S SUBMISSIONS

  1. To the claimant, paragraphs 7, 8. 11, 13, 14, 16, 17 and 18 of the 1st defendant’s [amended] counter-affidavit offend section 115(2) of the Evidence Act because the depositions therein contain extraneous matters such as legal arguments and/or conclusions. In other words, the matters deposed in the impugned paragraphs of the counter-affidavit contain matters which counsel ought to have urged on this Court in their written address and not by a deponent in an affidavit. That the test for determining when matters deposed to in an affidavit are extraneous was laid down in Bamaiyi v. State [2001] FWLR (Pt. 46) 981; referring also to General & Aviation Services Ltd v. Thabal [2004] All FWLR (Pt. 211) 1368 at 1390. The claimant then urged that the said paragraphs 7, 8. 11, 13, 14, 16, 17 and 18 of the 1st defendant’s counter- affidavit should be struck out.

 

  1. The claimant then pointed out that the the 1st defendant had submitted that Rule 020909 of the Public Service Rules did not state which sort of Directors the Rule applies to and as such notional promotion is factored into the computation of retirement period of directors. To this, the claimant submitted that Rule 020909 of the Public Service Rules is a special provision applicable to all Directors in the Federal Service who served 8 years on the post of Directors. That this Court has pointedly held in Nwanna v. NIA (supra) and Awa v. NSITF (supra) that the period covered by notional promotion cannot be factored in the computation of 8 years retirement rule applicable to Directors pursuant to Rule 020909 of the Public Service Rules.

 

  1. The claimant proceeded to urge the Court to note that the 1st defendant in paragraph 5 of its counter-affidavit admitted that the claimant’s promotion took effect from 1/1/2018. This to the claimant is an admission against the 1st defendant’s interest.


 

  1. The claimant continued that the 1st defendant’s counsel had argued that the claimant was rightly retired in line with section 7, Regulation 0206(b) of the National Assembly Service Staff Regulation 2020 (Conditions of Service). And that the claimant, having taken benefits of his notional promotion, cannot turn around to complain. That this amounts to approbation and reprobation. In response, the claimant submitted that the express mention of a thing in an instrument excludes that not expressly mentioned, citing Tawakalitu v. FRN [2011] All FWLR (Pt. 561) 1413 at 1470. That by the clear provision of Regulation 0206(b), the effective date of notional promotion shall only be used to determine the point at which the officer enters the new salary scale, his future increment date and seniority in the grade. That the regulation did not state that notional promotion shall be used to compute 8 years in the application of the 8-year tenure rule under Rule 020909 of the Public Service Rules. The even if the Court resorts to the literal canon of interpretation, the reliance on this rule by the defendant still remains flawed.

 

  1. More importantly, that the notice of retirement (Exhibit CVA6) issued by 1st defendant and served on the claimant is very clear it was issued pursuant to Rule 020909 of the Public Service Rules and not pursuant to regulation 0206(b), which is not even placed before this Court. That the 1st defendant is, therefore, bound by what is stated in Exhibit CVA6 as the reason for the compulsory retirement of the claimant.

 

  1. Furthermore, that there is no scintilla of evidence adduced by the 1st defendant before this Court to prove the benefits enjoyed by the claimant from his notional promotion. That it is trite law that he who asserts must prove, citing section 136(1) of the Evidence Act. Instead, Exhibit CVA2 (that is letter of promotion of claimant) issued by the 1st defendant to claimant expressly denied the claimant of any benefits arising from his notional promotion.

 

  1. On the contention that the claimant failed to complain about his notional promotion until now, the claimant responded that the grievance of the claimant is on the legal effect of his notional promotion with respect to the computation of 8 years in the application of the 8-year tenure rule. That the claimant’s cause of complaint only arose at the time his notional promotion was factored in the computation of his 8 years of service on the post as a Director to determine his employment — hence his timeous complaint vide this suit.

 

  1. With respect to the 1st defendant’s counterclaim, the claimant submitted that it is unmeritorious and unsubstantiated. That in paragraphs 6, 7 and 8 of the claimant’s affidavit in support, he deposed to facts showing how he served the defendant’s meritoriously. He also stated that he was due for promotion as a Director on 1/1/2017 but rather got it in 2018. That these pungent facts have not been disputed anywhere by the 1st defendant and hence, they are deemed admitted.

 

  1. That there is not factual allegation against the claimant that he abandoned his duties but earned salaries within such period. That the Skye Bank v. Adegun (supra) cited by 1st defendant is in respect of a servant who expected payment for a period he did not serve his master. That this is not the same with the situation where a servant was paid salaries to cover when financial


 

benefits to his promotion took effect. Thus, that Skye Bank v. Adegun is cited of out of context and should be discountenanced.

 

  1. The claimant then asked that if he was due for promotion on 1/1/2017 but was eventually promoted in year 2018 without any financial benefits for the year he was due for promotion (2017), what equitable justification does the 1st defendant has to be calling for a deduction of claimant’s salary from January 2018 to June 2018? That there is no justification. This is because he who seeks equity. Besides, the claims of the 1st defendant remain speculative as there is no evidence of such payments and the actual amount paid the claimant placed before this Court.

 

  1. Finally, the claimant submitted that all the cases cited by the 1st defendant are irrelevant to the facts of this matter in that they did not specifically consider or interpret Rule 020909 of the Public Service Rules or its equivalent. The claimant then urged the Court to discountenance them.

 

THE 2ND DEFENDANT’S SUBMISSIONS

  1. The 2nd defendant in countering has it that the claimant has served his full term of 8 years as a Director in the service of the National Assembly by 01/01/2025, having enjoyed all the benefits of being a Director even before he became one. That the 2nd defendant has no direct authority regarding the recruitment, promotion, discipline or retirement of the claimant and the claimant has no legal right to institute this matter against the 2nd defendant as there is no cause of action against it even by the facts.

 

  1. And so it is the case of the defendants that the eight (8) years counts from the cumulative number of years from when the office of a Director is deemed to run on the post and this case includes the period of notional promotion for all intents and purposes, since same is counted in all aspects and so the retirement of the claimant remains valid and is not premature.

 

  1. It is further the case of the defendants that the claimant has also taken other necessary steps of accepting and complying with the retirement and has since mid-October 2024 moved his equipment from the office of the defendants — copy of correspondence attached as Exhibit NASSC-1.

 

  1. The 2nd defendant also challenges the jurisdiction of the Court as to the cause of action against it, delay in bringing up the complaint or suit amongst others. The defendants accordingly urged the Court to dismiss the matter in the interest of the justice, as it lacks of cause of action, substance and frivolity.

 

  1. The 2nd defendant also submitted a sole issue for determination, namely:

Whether Rule 020909 of the Revised Public Service Rules 2021 on compulsory retirement of Directors after eight (8) years as Directors is applicable to the claimant as a Director, who had enjoyed being a Director for eight (8) years from the period of


 

01/01/2017 to 01/01/2026, which includes a notional promotion period of 01/01/2017 to 01/01/2018.

 

  1. To the 2nd defendant, the claimant posits that his notional promotion to the post of Director, which he got from 01/01/2018 but with effect from 01/01/2017 without financial benefit for the entire 2017, should not warrant that he retires from service on 01/01/2025. That though by 01/01/2025 the claimant would have served as a Director for the period of eight (8) years, he claims that because he did not get the benefits of being a Director for the period of 01/01/2017 - 01/01/2018, his services should be retained till 01/01/2026. He seeks declaratory orders against his retirement, seeks an order setting aside the letter of retirement dated 8 October 2024 and a perpetual injunction against the defendant.

 

  1. In defence, it is the submission of 2nd defendant that:
    1. The claimant is citing authorities that are not in tandem with the present suit.
    2. The claimant is approbating and reprobating and was never diligent in raising any objection to the notional promotion which he enjoyed and benefited from; having comfortably deeply slept for all these years since 2028.
    3. The claimant has not proven his claims by any well-established pattern of evidence to entitle him to the reliefs sought.
    4. The claimant has no cause of action against the 2nd defendant which goes to the jurisdiction of the Court in this matter.

 

  1. The 2nd defendant proceeded to elaborate on these submissions. That the claimant copiously relied on Nwanna v. NIA & 2 ors (NICN/ABJ/123/2011) and Awa v. NSITF (NICN/LA/ 464/2013). That these NICN decisions are not on any footing with the present case of the claimant. That the first case dealt with a security setting which has it that being on Grade Level 17 doesn’t make a person a Director until ratified, while the second was a case where promotion was intentionally and maliciously made in order to terminate the appointment of that claimant.

 

  1. That the defendants in this instant case did not need to ratify the promotion of the claimant to Grade Level 17 to make the claimant a Director when he was given the notional promotion effective from 01/01/2017. That the promotion was not done maliciously to retire the claimant. In fact, it was done in this case to give him better chances of advancements, appointments and perquisites of office, most of which he enjoyed.

 

  1. It is the 2nd defendant’s position that a public servant who has benefited from the fact of a notional promotion, which he did not challenge ab initio, cannot turn around to challenge the law. That no party is allowed to approbate and reprobate at the same time on one issue. That equity will not allow that, citing Iloabachie v. Philips [2002] 14 NWLR (Pt. 787) 264 at 289 - 290.

 

  1. The 2nd defendant went on that it is unimaginable that the claimant who has benefited seniority and other perquisites of office from the act of notional promotion can now turn around


 

to challenge the notional promotion that gave him seniority and benefits over others. That the claimant by this action of approbation and reprobation has not approached the court with clean hands, citing Egbo v. Candid [2023] 16 NWLR (Pt. 1911) 417 at 433 and Thomas W. & Son (Nig. Ltd) v. P.I. Ltd [2019] 12 NWLR (Pt. 1697) 540. The 2nd defendant then urged the Court to disregard the claimant’s position and claims and dismiss the matter entirely on this and other grounds.

 

  1. That considering that the Court of Appeal authority in Iloabachie v. Philips (supra) is superior in precedence to the NICN decision being flaunted by the claimant in Nwanna v. NIA & 2 ors (supra) and Awa v. NSITF (supra), this Court on grounds of precedence should at best look upward for superior authorities. That the issue of applicability of the period of notional promotion for the purpose of calculating the time for retirement or other benefits for public servants ought to be counted up from the period of notional promotion to make the period of eight (8) years. That there is no how such a period of notional promotion will not be applied in calculating the service period of the claimant. More so, the claimant has by his acts and omissions conscientiously forfeited his rights to any protest out of his non vigilance and timeous reaction or objection to the notional promotion. That equity aids only the vigilant and not the indolent, citing FBN Plc v. Akinyosoye [2005] 5 NWLR (Pt. 918) 340 at 398 and relying on Ntuks v. NPA [2007] 13 NWLR (Pt. 1051) 392 at 428. That equity will not allow the claimant shout foul; even law will not allow this.

 

  1. That a party who has slept off over his rights, having accepted a position and condoned same for so many years should not be entertained by the court when he cries foul on the consequential effect of the position he has accepted and enjoyed, citing CRUTECH v. Obeten [2011] 15 NWLR (Pt. 1271) 588 CA. That the claimant, having served as Director for over the past years in terms with the letter of appointment as Director, exhibited by the claimant, which position was accepted and enjoyed by the claimant without complaining, is bound to endure the irreversible consequence of his deep slumber on that position, urging the Court to dismiss this suit.

 

  1. On lack of evidence, the 2nd defendant referred to sections 131 - 134 of the Evidence Act, 2011, arguing that for a claimant to succeed in civil claims, he must establish his case on the balance of probabilities. In other words, the burden of proof lies on him since claims will fail if no evidence is led to establish them. It is the 2nd defendant’s submission that from the facts available in this matter, NO case has been made out for the Court to grant the reliefs, make the declarations, grant the injunction and orders sought in this suit by the claimant.

 

  1. That it is clear that there are legal as well as evidential burdens on the claimant to adduce sufficient evidence to establish his case. That the proper course to chart at this stage is to ascertain whether that burden was discharged in this case. If discharged, then the burden shifts to the defendant. That the claimant has to do so for the purpose of establishing whether or not he is entitled to the declarations, orders, reliefs and costs in the claims. That the claimant did not lead evidence on the reliefs sought. He did not lead any evidence in that regards, citing Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 135 at 171.


 

  1. That it is also trite law that a party who makes averments in his pleadings but fails to lead evidence to substantiate same at the trial is deemed in law to have abandoned same. That it is obvious that the claimant could not link his claims with evidence. That the claimant could not discharge the burden of proof, citing Enugu State Civil Service Commission & ors v. Agu Geogrey [2006] 18 NWLR (Pt. 1011) 293. That Azenabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96, the Court of Appeal placed the onus on an employee who complains that his employment has been wrongfully terminated to place before the court the terms of the contract of his employment with his employer and to prove in what manner the terms have been breached. It is thus the 2nd defendant’s submission that the invitation to make declarations, grant perpetual or any type of injunction in this circumstance restraining the 2nd defendant from a completed act will result into a head on collusion with the Revised Public Service Rules, 2021, and give the Claimant nine (9) years of service as a Director in the service of the defendants.

 

  1. On lack of cause of action and jurisdiction, the 2nd defendant submitted that from the facts reeled out by the claimant and documents attached/exhibited, the 2nd defendant has NO role to play in the retirement of the claimant. That the claimant was employed, got promoted and retired by the 1st defendant, not the 2nd defendant. That no step in the entire cause of action was engineered or precipitated by the 2nd defendant, yet it is sued as a party. that it is also obvious that there is no specific relief that is likely to succeed against the 2nd defendants, just as there is no cause of action against it. On this main ground, that the Court has no jurisdiction to entertain this matter as presently constituted in the absence of a cause of action. That lack of cause of action is partly abuse of process which cumulates from incompetence of the suit and which affects the jurisdiction of the courts.

 

  1. That it is trite law that a court without jurisdiction is without vires to determine any issue in the case and any proceeding, judgment and order made by the court in the absence of jurisdiction becomes an exercise in futility and constitutes a nullity, citing International Niger Build Const. Co. Ltd v. Giwa [2003] 13 NWLR (Pt. 836) 69, Labigi v. Anretiola [1992] 8 NWLR (Pt. 258)

139, Adeyemi v. Opeyori [1976] 9-10 SC 31, Madukolu v. Nkemdilim [1962] 1 All NLR 587 at

594, Abdullamid v. Akar [2006] 13 NWLR (Pt. 996) at 127 and 140, and Alao v. ACB [2000] 2

SCNQR (Pt. 2) 1067 at 1083 - 1084.

 

  1. The 2nd defendant’s submission is on the source of the issues from where the right of the claimant to challenge his compulsory retirement arises against the 2nd defendant. Nowhere, answered the 2nd defendant. That a cause of action has been explained to constitute the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed, citing Sugrave Holdings Inc. v. FGN [2021] 17 NWLR 309 SC and Chevron (Nig.) Ltd. v. L.D. (Nig.) Ltd [2007] 16 NWLR (Pt. 1059) 169 SC at 178 - 179.

 

  1. That being a suit without cause of action against the 2nd defendant, none of the reliefs is likely to succeed against the 2nd defendant. That the suit is clearly brought with ulterior motives,


 

arbitrarily, capriciously, with misleading facts and in suppression of material facts as regards the roles of the 2nd defendant. That it is a suit well calculated to vex, irritate and annoy the 2nd defendant, which should be dismissed with cost, citing Tomtech Nigeria Limited v. Federal Housing Authority [2009] 18 NWLR (Pt. 1173) 358 at 376 - 377 and Saraki & anor v. Kotoye

[1992] 9 NWLR (Pt. 264) 156 at 188 – 189.

 

  1. The 2nd defendant continued that abused process has no place under our laws. That this Court has the power and duty to prevent the improper use of its process, citing Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126 and 146.

 

  1. That the suit of the claimant, which is without any substance or cause of action against the 2nd defendant, is frivolous, vexatious, misleading, lacking in substance and requisite jurisdiction. That the claimant is citing authorities that are not in tandem with the present suit. The claimant is approbating and reprobating and was never diligent in raising any objection to the notional promotion which he enjoyed and benefited from having comfortably deeply slept for all these years since 2018. That the claimant has not proven his claims by any well-established pattern of evidence to entitled him to the reliefs sought. The claimant has no cause of action against the 2nd defendant. The 2nd defendant then urged the Court to dismiss the case of the claimant with cost.

 

THE CLAIMANT’S REPLY ON POINTS OF LAW TO THE 2ND DEFENDANT’S SUBMISSIONS

  1. In replying on points of law to the 2nd defendant’s submissions, the claimant stated that counsel to the 2nd defendant struggled to distinguish the cases of Nwanna v. NIA (supra) and Awa v. NSITF (supra) cited by the claimant’s counsel. That he also argued that the claimant benefited from his notional promotion and cannot turn around to challenge its implication. Furthermore, counsel contended that Iloabchie v. Philip (supra) being a decision of the Court of Appeal is superior in precedence to the decisions of this Court in Nwanna v. NIA (supra) and Awa v. NSITF (supra).

 

  1. In response, the claimant submitted that there is no scintilla of evidence adduced by the 2nd defendant before this Court to prove the benefits enjoyed by the claimant from his notional promotion. That it is trite law that he who asserts must prove, citing section 136(1) of the Evidence Act. Instead, Exhibit CVA2 (that is, the letter of promotion of claimant) issued by the defendants to the claimant expressly denied the claimant of any benefits from his notional promotion.

 

  1. Additionally, that it is settled law that a case is only authority or precedence on what it decides, citing Thomas v. Federal Judicial Service Commission [2016] All FWLR (Pt. 851) 1222 at 1235. That Iloabachie v. Philip cannot have superior precedence over the decisions of this Court in Nwanna v. NIA (supra) and Awa v. NSITF (supra). That while the latter cases particularly decided on the legal effect of notional promotion for the purpose of calculating 8 years in the application of the 8-year tenure rule provided in the Public Service Rules, the former


 

case did not. Therefore, Nwanna v. NIA (supra) and Awa v. NSITF (supra) remain the locus classicus on this issue for now.

 

  1. The 2nd defendant had also argued that the evidence adduced by the claimant is not sufficient enough to sustain his reliefs before this Court. In other words, the claimant has failed to discharge the burden of proof placed on him. In answer, the claimant submitted that the oral and documentary evidence he adduced are credible, reliable and sufficient enough to sustain his claims before this Court. That the burden of proof placed on him in this case is proof on preponderance of evidence and same has been effectively discharged by his affidavit evidence. That if the 2nd defendant had argued that the claimant’s case lacks sufficient evidence, then the 2nd defendant unwittingly imposed an obligation on himself to demonstrate before this Court the kind of evidence required to be produced by the claimant to sustain his claims which he did not produce. That this too, the 2nd defendant has failed to do.

 

  1. The 2nd defendant had further argued that there is no basis joining him as a party to this suit since no cause of action is disclosed against him. He, therefore, concluded that this Court lacks jurisdiction to entertain this suit. In answer, the claimant submitted that in paragraph 4 of the affidavit in support of originating summons, he deposed that the “the 2nd defendant is the chief administrative head of the National Assembly”. That the purpose of joining 2nd defendant in this suit is for him to be bound by its outcome, citing Diamond Bank Plc v. Hollist [2016] All FWLR (Pt. 860) 1007 at 1029. That it is only where the 2nd defendant as the chief administrative head of the National Assembly is joined that he would become bound by whatever orders are made by this Court.

 

  1. Furthermore, that the absence of a cause of action against a co-defendant does not completely rob the court of jurisdiction. At best, that party which no cause of action is disclosed against him will have his name struck out while the suit survives against the other

 

COURT’S DECISION

  1. I took time to consider the processes and submissions of the parties. By paragraph 5 of the affidavit in support of the originating summons, the claimant was born on 29 May 1968. And he joined the service of the National Assembly on 2 November 1992 (Exhibit CVA1a). By Exhibit CVA2 dated 3 July 2019, the claimant was promoted “to the post of Director (Legislative) on Salary Grade Level 17 with effect from 01-01-2017 and financial benefits with effect from 01/01/2018”. Exhibit CVA3, dated 29 April 2024, is a letter from the Executive Chairman of the 1st defendant to the 2nd defendant informing him that the 1st defendant at its 582nd meeting held on 28 September 2023 approved the domestication of the revised Public Service Rules (PSR) 2021 for use in the National Assembly Service with effect from 27 July 2023.

 

  1. Rule 020909 of the PSR 2021 provides for the 8-year tenure rule in these words:

A Director or its equivalent by whatever nomenclature it is described in MDAs shall compulsorily retire upon serving eight years on the post; and a Permanent Secretary shall


 

hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more.

 

  1. Rule 020909 of the PSR 2021 is preceded by Rule 020908, which provides for mandatory retirement in these words:
    1. The mandatory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.
    2. No Officer shall be allowed to remain in Service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.
    3. The provision of (i) and (ii) is without prejudice to prevailing conditions of service for Judicial Officers, Academic Staff of Universities and other Officers whose retirement age is at variance with (i) and (ii) above.

 

  1. The adoption of the 8-year tenure Rule by the Federal Capital Territory Judicial Service Committee received judicial approval by this Court in Mrs Ramatu T. Shehu v. Judicial Service Committee of the Federal Capital Territory & anor unreported Suit No. NICN/ABJ/24/2018, the judgment of which was delivered on 3 March 2020. A fortiori, the domestication of the same rule by the 1st defendant in the instant case remains valid. In paragraph 2(C) of Exhibit CVA3, the domestication of the 8-year tenure rule is put as follows:

Pursuant to the above, the National Assembly Service Commission hereby provides the following guidelines for:

  1. …….
  2. ……
  3. Tenure Policy
  4. Director in the National Assembly Service shall compulsorily retire upon serving eight (8) years on the post.
  5. Secretaries and other Officers on consolidated positions shall hold office for a term of four (4) years and renewable for further term of four (4) years subject to satisfactory performance and no more.

NOTE: Please note that Directors and Officers on Consolidated positions shall retire from service upon the attainment of the stipulated retirement age or years of service as contained in the Extant Rules regardless of the provisions of the Tenure Policy.

 

  1. So, when the claimant posed the question for determination in his originating summons i.e. “Whether from the letter and spirit of Rule 020909 of the Revised Public Service Rules 2021, applicable to the defendants, the fact of notional promotion can be factored in for the purpose of computing eight (8) years in the application of the eight (8) year compulsory retirement rule applicable to the claimant as a Director”, the question has to be answered in its domesticated from as per Exhibit CVA3, a position Mrs Ramatu T. Shehu v. Judicial Service Committee of the Federal Capital Territory & anor would sanction.


 

  1. It is this case of the claimant that the 2nd defendant submitted that this Court has no jurisdiction especially against him. To the 2nd defendant, since there is no claim against him, the claimant has no cause of action against him. Accordingly, this Court has no jurisdiction to hear and determine the case. Now, in paragraph 4 of the affidavit in support of the originating summons, the claimant described the 2nd defendant as “the chief administrative head of the National Assembly”. The 2nd defendant’s counter-affidavit was deposed to by Selman Falum Dashe, who by paragraph 1 is “a Principal Legal Officer in the employment of the 1st Defendant and the National Assembly”; and who by paragraph 3 has “the authority and consent of the 2nd Defendant to depose to this Counter Affidavit…” There is no averment in the 2nd defendant’s counter-affidavit denying the claimant’s paragraph 4 of the affidavit in support of the originating summons. There is equally no averment in the 1st defendant’s counter-affidavit denying the claimant’s paragraph 4 of the affidavit in support of the originating summons. So, as it is, it is a fact that the 2nd defendant is “the chief administrative head of the National Assembly”. I so find.

 

  1. When the 1st defendant domesticated the 8-year tenure rule, the Executive Chairman of the 1st defendant had to send Exhibit CVA3 to the 2nd defendant with the following charge in paragraph 3:

You are therefore to bring this to the notice of all staff of the National Assembly Service and ensure full implementation of all the provisions of the Public Service Rules (PSR) 2021 Revised Edition.

 

  1. So when the claimant answered the 2nd defendant, that the 2nd defendant was made a party just so that he would be bound by the outcome, that was a valid argument since it is the responsibility of the 2nd defendant to see to the full implementation of all the provisions of the PSR 2021 including the 8-year tenure rule.

 

  1. There is another point the 2nd defendant misses. As the Chief Administrative Head of the National Assembly, the 2nd defendant qualifies in virtue of the definition of the term “employer” under section 91 of the Labour Act Cap. L1 LFN 2004 as an employer to the claimant. Section 91(1) of the Labour Act defines the term “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer”.

 

  1. This Court has consistently turned down arguments of defendants seeking to strike out heads or key officers of establishments as parties to a suit on the ground that they are merely agents of the establishments. See Ogunbayo Oluwole Michael v. Fidelity Bank Plc & anor unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on 13 December 2017, Mr Gabriel O. Obahiagbon & ors v. The President, Federal Republic of Nigeria & ors unreported Suit No. NIC/LA/171/2011, the judgment of which was delivered on 9 July 2019, Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) v. Corporate Affairs Commission (CAC) & anor unreported Suit No. NICN/ABJ/ 62/2021, the judgment of which was delivered on 7 October 2021 and Mrs Ronke Obaribirin


 

Aliyu v. The Director General, Nigerian Television Authority & anor unreported Suit No. NICN/ ABJ/240/2021, the judgment of which was delivered on 28 April 2022. Since the definition of an employer includes the agent, manager or factor of an employer, the 2nd defendant in the instant suit as “the chief administrative head of the National Assembly” is an employer to the claimant and so can be sued as has been presently done. I so hold.

 

  1. The argument of the 2nd defendant that this Court has no jurisdiction in this matter especially in regard to the 2nd defendant is ill-founded and so has no merit whatsoever. I reject and accordingly dismiss it. I hold that this Court has jurisdiction over this matter and as it relates to the 2nd defendant.

 

  1. Having held that this Court has jurisdiction over this case, we can now proceed to look at the merit of the case. But first, is the 1st defendant’s counterclaim. A look at the 1st defendant’s amended counter-affidavit in opposition to the claimant’s originating summons will show that there are 8 averments in support of the 1st defendant’s counterclaim. But there are no reliefs claimed or prayed for by the 1st defendant. And in its written address, the 1st defendant in paragraphs 3.15 to 3.17 made submissions in support of its counterclaim but made no claims or prayer for any relief. When this fact was in open court pointed out to the learned Senior Advocate of Nigeria (SAN), counsel to the 1st defendant, his reply was that reliefs can be consequential and so granted. Of course, the learned SAN did not supply any authority for his submission.

 

  1. Case law authorities have long established that pleadings are not claims. For suits filed by way of originating summons such as the instant case, the affidavit in support of the summons and any counter-affidavit thereto constitute the pleadings. See Mainstreet Bank Capital Ltd & anor v. Nigeria Reinsurance Corp. Ltd [2018 LPELR-44905(SC) per Kekere-Ekun, JSC (as he then was, now CJN). Jibeco Nig. Ltd v. First Bank Nig. Plc [2018] LPELR-46968(CA), relying on Narindex Trust Ltd v. N.I.M.B Ltd [2001] 10 NWLR (Pt. 721) 32 SC, accordingly held thus:

…an averment is a Statement of Fact that needs to be proved and does not qualify as a Claim. It is essential for the Respondent to state the reliefs in the Counter-claim as the reliefs cannot form part of the Statement of Defence. The claims contained in the Counter-claim must also be specified and categorised and subsumed under the appropriate head of damages…

 

………………..

 

Since the rules of pleadings apply to a Counter-claim and the Respondent needs to specifically claim the reliefs being sought, it can be gathered that the Respondent did not sought (sic) for any reliefs but made mere averments of facts. It is settled law that a party is only entitled to the reliefs claimed.

 

  1. And Garuba v. K.I.C. Ltd & ors [2005] LPELR-1310 (SC) held that:


 

It is the law generally that a Court not being a charitable institution would not grant to a party relief not claimed from the Court. Even if the trial Court had been minded to grant the plaintiff an award, there was no claim before it upon which to hinge such an award. It is trite that an Appellant (sic) Court cannot grant a party a relief which that party had not sought from the Court of trial.

 

  1. So just as pleadings without claims/reliefs make no suit, so too claims/reliefs without pleadings make no suit. See Ishola v. UBN [2005] 6 MJSC 34 at 49 - 50. The point is that no litigant gets any relief not claimed. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, Funduk

Engineering Ltd v. James Mcarthur & ors [1996] LPELR-1291(SC), Ekpenyong v. Nyong [1975] 2 SC 71 and Ajakaiye v. Idehai [1994] 8 NWLR (Pt. 364) 504 and Akapo v. Hakeem-Habeeb &

ors [1992] LPELR-325(SC).

 

  1. All of this means that the 1st defendant’s counterclaim is incompetent since it did not pray for any relief. It is accordingly discountenanced and so struck out. I so rule.

 

  1. The claimant had submitted that paragraphs 7, 8. 11, 13, 14, 16, 17 and 18 of the 1st defendant’s [amended] counter-affidavit offend section 115(2) of the Evidence Act because the depositions therein contain extraneous matters such as legal arguments and/or conclusions. I read through these paragraphs of the 1st defendant’s amended counter-affidavit. Only paragraphs 7, 13, 16, 17 and 18 offend section 115 of the Evidence Act 2011 given that they are opinions, legal arguments and conclusions. The said paragraphs provide as follows:

7. That I know by my training as lawyer that in view of the fact that he was paid entitlement of the post of a Director from 1st January, 2018 when he was not actually on the job. The issue of actual enjoyment of salary when the duties were not performed has cropped up. This is an opinion and a legal argument.

13. That the 8 years of directorship counts from the cumulative number of years from when the office of a Director is deemed to begin to run and in this case includes the period of of notional promotion for all intents and purposes. This is a legal argument and conclusion.

  1. That the Claimant would serve for 9 years as Director if the reliefs sought by the Claimant are granted. This is a legal argument and conclusion.
  2. That after accepting the notional promotion in his favour, enjoying the prerequisites (sic) of office, seniority, eligibility for such other appointments like Directorate Secretary/ House Clerk or Deputy, without protesting, the Claimant now seeks to challenge the same notional promotion he benefited from. This is an opinion and a conclusion.
  3. That allowing the claims of the Claimant against the Defendants will amount to compelling the Defendants to retain the services of the Claimant which has since been exhausted and will clog the movement of other staff. This is a legal argument and a conclusion.


 

  1. Where averments in an affidavit offend section 115 of the Evidence Act 2011, the rule is that such averments are to be discountenanced and struck out. See Mbah & ors v. Akwuole & ors [2024] LPELR-62924(CA). Accordingly, paragraphs 7, 13, 16, 17 and 18 of the 1st defendant’s amended counter-affidavit, in offending section 115 of the Evidence Act 2011, are hereby struck out. I so rule.

 

  1. I already indicated what the claimant’s case is all about. Soon after Exhibit CVA3 dated 29 April 2024 was issued, the claimant and one other person, Maring Habiba Ahmed, Esq, the Director of Legal Services/Senate Table Duties, wrote vide Exhibit CVA4 dated 10 June 2024 to the 1st defendant through the 2nd defendant drawing attention to the decisions of this court in Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit N. NICN/ ABJ/123/2011, the judgment of which was delivered on 16 December 2013 and Mr Chinweorder Chukwu Awa v. Nigeria Social Insurance Trust Fund [2015] 60 NLLR (Pt. 211) 544, which interpreted and applied the 8-year tenure rule as one where the Director in issue must actually stay 8 years on the post before he can be retired. They accordingly urged the defendants uphold that their exit date from service will be 01-01-2026.

 

  1. The Secretary, Human Resources & Staff Development (Birmah Shuaibu Maina), writing for the 2nd defendant vide Exhibit CVA5 dated 13 June 2024 forwarded Exhibit CVA4 to the 1st defendant. The outcome is Exhibit CVA6 dated 8 October 2024, which informed the claimant that he will attain 8 years as a Director on 1 January 2025. Accordingly, and in line with the 8- year tenure rule, the 1st defendant approved his retirement with effect from 1st January 2025 with his pre-retirement leave taking effect from 1st October 2024. Aggrieved, the claimant then filed the instant suit.

 

  1. In paragraph 4(p) of the 2nd defendants counter-affidavit, the 2nd defendant averred that “the Claimant has since ceased to render services to the National Assembly in any capacity and has taken necessary steps of accepting and complying with the retirement as he has since mid- October, 2024 moved all his work equipment from the office of the Defendants”. Of course, what is the 2nd defendant expecting the claimant to do when Exhibit CVA6 dated 8 October 2024 directed that the claimant’s pre-retirement leave started on 1st October 2024? The claimant had no option in this circumstance but to move his things until this Court can determine his case. This cannot be interpreted as the claimant accepting his retirement fate as the defendant seems to think. I so rule.

 

  1. It is the defendants’ case that from the date when the claimant was offered notional promotion till date, he slept over his right by not raising any issue or challenging the notional promotion. That the claimant benefited from the title/post of a Director. That it is safe to state that he has been aware that his years in office as a Director started to count from 2017 especially that since 2018 he conveniently did not raise any issue until now.

 

  1. In pushing this argument, the 2nd defendant relied on Iloabachie v. Philips [2002] 14 NWLR (Pt. 787) 264 at 289 - 290, which according to the 2nd defendant held that the appellant enjoyed


 

the benefits of his promotion and so is estopped from challenging the authority of the 1st respondent to terminate his employment. To the 2nd defendant, since Iloabachie v. Philips is a Court of Appeal authority, it is superior in precedence to the NICN decisions being flaunted by the claimant in Nwanna v. NIA & 2 ors and Awa v. NSITF.

 

  1. But what the 2nd defendant did not tell this Court is whether Iloabachie v. Philips is a case on the application of notional promotion as far as the 8-year tenure rule is concerned. Based on what the 2nd defendant quoted from the case, Iloabachie v. Philips is a case where the authority of the 1st respondent to terminate the employment of the appellant was in issue. This is not the issue that came up in Nwanna v. NIA & 2 ors and Awa v. NSITF, where the validity of the 8-year tenure rule was not even the issue. The validity of the 8-year tenure rule was an issue in Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240 but it failed. The issue in Nwanna v. NIA & 2 ors and Awa v. NSITF was the application of the rule. No one contested the authority to retire the claimants. The point of contest was that the rule was wrongly or inaccurately applied. How then can Iloabachie v. Philips be applicable for purposes of judicial precedence in the instant case? It behoves on counsel to read case law authorities in their proper context.

 

  1. The claimant had no reason to complain until he was issued with the notice of retirement , and told that his pre-retirement had even commenced (Exhibit CVA6). This is the point in which the claimant could validly complain, which he did in filing this suit.

 

  1. The assertion by the defendants that the claimant benefited from the post of Director is one made without showing how he benefited. And the argument of the defendants as to the claimant being aware that his years in office as Director started to count from 2017 and the claimant not raising any issue until now misses the point that until the notice of retirement was forwarded to him, the claimant had no reason to raise any alarm.

 

  1. It is the further case of the defendants that promotion is not just about financial benefit as it also has to do with seniority in rank and position which elicit privileged treatment, which the claimant enjoyed. That it will be inequitable, having enjoyed some benefits, to deny the said benefits because it does not attract direct financial backing. That labour relations are not just about financial benefits. It also has to do with perquisites, seniority and standing in line of succession. The exact benefits, perquisites, etc of the claimant assuming seniority in rank was, however, not disclosed to this Court.

 

  1. Reliance by the defendants on the the equitable principles of equity favoring the vigilant and not the indolent and that he who comes to equity must come with clean hands is not helpful as they are not applicable in the instant case of the claimant given that the point at which the claimant needed to complain is when he was served with the notice of retirement; and the defendants did not show the so called benefits the claimant enjoyed from 2017 to 2018, the period of the notional promotion or even what enured to the claimant as benefits in virtue of the notional promotion. Exhibit CVA4 is the claimant’s complaint to the defendants. Soon after the


 

claimant was served with the notice of retirement, he filed this suit. The claimant could not have complained earlier than that as no cause of action would have arisen. His case would have been speculative. It is when his complaint vide Exhibit CVA4 was not favourably answered, and he was served his retirement notice vide Exhibit CVA6, that a cause of action arose for which he filed this suit.

 

  1. The 2nd defendant specifically claimed that the claimant “benefited seniority and other perquisites of office from the act of notional promotion”. What seniority did the claimant benefit from 2017 to 2018, the period of the notional promotion? What “perquisites of office from the act of notional promotion” did the claimant enjoy from 2017 to 2018, the period covered by the notional promotion? The Court was not shown. All the 2nd defendant deposed to in paragraph 4(j) and (l) of his counter-affidavit respectively is that “notional promotion had its lot of advantages of privileges of eligibility, perquisites of office and financial benefits which the Claimant has exhaustively enjoyed till retirement”, and “…enjoying the perquisites of office, seniority, eligibility for such other appointments like Directorate Secretary/House Clerk or Deputy…” All this is conjecture by the 2nd defendant. Eligibility for appointment is not the kind of benefit that will make the period of notional promotion to be counted in determining the application of the 8-year tenure rule. What tangible and actual benefits did the claimant get from notional promotion remains undisclosed by the defendants.

 

  1. I must add that Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit N. NICN/ABJ/123/2011, the judgment of which was delivered on 16 December 2013, rejected the idea that maintaining seniority was a benefit for purposes of making the period of notional promotion count in applying the 8-year tenure rule. And this Court in that case specially held thus: “…the 8-year tenure policy applies only to Directors who have actually spent eight years on the post, not notionally as provided for in Rule 02810(iv)(a) of the Public Service Rules (2008)”; and then granted the claimant his relief a) i.e. “a declaration that based on extant policy of the Federal Government, the claimant’s tenure as a Director with the 1st defendant is for a fixed period of eight years from the day he started serving on post as Director”. Relief b) of the claimant i.e. “a declaration that the purported notice of retirement to the claimant by the defendants effective from 1st of January 2012 is null and void” succeeded and was granted. What else are the defendants reading, for which they are now saying that the instant case should not be bound by Nwanna?

 

  1. This Court has made it clear that those on notional promotion, not enjoying any financial benefit from the notional promotion, cannot be said to have been promoted to their benefit. Where an employer wants to factor the period of notional promotion for purposes of applying the 8-year tenure rule, it must have borne the full financial burden of the promotion by paying all salaries and allowances inuring to the employee for the period of the notional promotion. The defendants did not do this in the instant case. Instead, they are talking of seniority and eligibility as if these are the tangible benefits this Court had talked of.


 

  1. In Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16 December 2013, this Court considered the concept of notional promotion and actual promotion. In the words of the Court:

…nowhere in the Public Service Rules is ‘notional promotion’ defined. The closest to a definition can be gleaned from the evidence before the Court, which is that a notional promotion is one without financial benefits as distinct from actual promotion, which is one with financial benefits. In ordinary parlance, the word ‘notional’ is an adjective connoting something that exists only in theory or as a suggestion or idea, but not in reality. The Chambers Dictionary defines notional as something theoretical, hypothetical, ideal, fanciful, speculative, imaginary and unreal. So if promotion is notional, then it can only mean that it exists only in theory or as a suggestion or idea or hypothetical or fanciful or speculative or imaginary; certainly not in reality; hence the distinction between notional and actual promotion.

 

  1. The averments of the 2nd defendant do not even help the case of the defendants. For instance, in paragraph 4(e) of the 2nd defendant’s counter-affidavit, the 2nd defendant averred that “the Claimant was due for promotion on 01/01/2017 and was so promoted later when there was vacancy”. By this averment, the 2nd defendant acknowledged that there was no vacancy in 2017 and so the claimant could not be promoted; and that the clamant was only promoted when vacancy became available in 2018. If there was no vacancy in 2017, what benefits of promotion could the claimant have enjoyed as claimed by both defendants?

 

  1. The further averment of the 2nd defendant in paragraph 4(g) of his counter-affidavit — that in considering the numerical 8 years, the year(s) of notional promotion is factored in — is either a deliberate refusal to appreciate the decisions of this Court on the 8-year tenure rule (two of which the claimant relied on in his submissions) or a poor appreciation of the said decisions.

 

  1. When Exhibit CVA2, the letter of promotion dated 3 July 2018, was issued to the claimant, and it was indicated therein that the promotion is “with effect from 01-01-2017 and financial Benefits with effect from 01/01/2018”, no statement was made therein that his retirement will be on “1st January, 2025” (as Exhibit CVA6 would later do). If this was done, then the argument of the defendants would make sense as that would be the point at which the claimant should have complained. Exhibit CVA2 was silent on this; and so it cannot be that any duty arose on the claimant to complain as to make the equitable principle relied upon by the defendants applicable. The defendants accordingly got it wrong in advancing their argument in that regard.

 

  1. So, what then is the answer to the question posed by the claimant? The answer is that the fact of notional promotion cannot be factored in for the purpose of computing eight (8) years in the application of the eight (8) year compulsory retirement rule applicable to the claimant as a Director. I accordingly answer the question posed by the claimant in the claimant’s favour.

 

  1. Having answered the question in favour of the claimant, the claimant’s case accordingly succeeds. I am satisfied that the claimant proved his case. The claimant is thus entitled to all the


 

reliefs he seeks. The argument of the defendants, especially the 2nd defendant, that the claimant did not prove his case, is hereby rejected and dismissed.

 

  1. I, therefore, make the following orders against the defendants, and in favour of the claimant:
  2. It is declared that 1 January 2017 being the notional promotion date of the claimant as a Director cannot be factored in for the purpose of calculating eight (8) years with respect to his compulsory retirement date as provided under Rule 202909 of the Revised Public Service Rules 2021, applicable to the defendants.
  3. It is declared that 1 January 2018 being the actual promotion date of the claimant as a Director is the correct and lawful date to be factored in for the purpose of computing eight (8) years with respect to his compulsory retirement date from service as provided under Rule 020909 of the Revised Public Service Rules 2021, applicable to the defendants.
  4. It is declared that that the claimant’s due date of compulsory retirement from the service of the defendants as a Director in line with Rule 020909 of the Revised Public Service Rules, 2021 applicable to the defendants is 1 January 2026 and not 1 January 2025.
  5. The retirement notice with Reference No. NASC/SS/PF/195 and dated 8/10/2024 issued by the 1st defendant and served on the claimant is hereby set aside.
  6. The defendants either by themselves, servants, surrogates, agents or howsoever called are hereby restrained from compulsorily retiring the claimant from service at any other date other than or earlier than 1 January 2026.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

…………..…………………………………… Hon. Justice B. B. Kanyip, PhD, OFR, bpa