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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN -- PRESIDING JUDGE

 

DATE: THURSDAY 23RD OCTOBER, 2025    SUIT NO: NICN/YEN/37/2022

 

BETWEEN:

 

JOSEPH OLODIAMA JEBBA                          ------------ CLAIMANT

 

AND

 

  1. THE GOVERNMENT OF BAYELSA STATE
  2. THE ATTORNEY GENERAL OF BAYELSA STATE                DEFENDANTS
  3. THE BAYELSA STATE CIVIL SERVICE COMMISSION
  4. THE BAYELSA STATE PENSIONS BOARD
  5. DR. PETER SINGABELE                           

JUDGMENT

 

  1. The claimant commenced this suit by way of an Originating Summons on the 8th of December, 2022. Sequel to the Court’s Order made on the 8th day of March, 2024 directing the parties to file and exchange pleadings for the proper trial of the suit, the Claimant filed a Complaint together with a Statement of Facts and other accompanying processes on the 11th of September, 2024, and claim the following reliefs against the Defendants:

 

  1. A declaration that the step down of the Claimant by two (2) Grade Levels upon integration from the Bayelsa State Post Primary Schools Board into the mainstream Civil Service (Ministry of Justice) loosing Nine (9) years in the service, and the SELECTIVE PLACEMENT of transferring staff transferring from one Department of the State Service to another was not within the Civil Service Rules and of no foundation.

 

  1. A declaration that the step down of the Claimant by two (2) Grade Levels loosing Nine (9) years of service from one Department of the State Service to another upon integration from the Bayelsa State Post Primary Schools Board into the mainstream Civil Service Ministry of Justice loosing Nine (9) years in the service was not within the Civil Service Rules and therefore null and void ab initio, and of no effect.

 

  1. A declaration that the Civil Service Commission is in Continuous Breach of the Claimant’s “Rights to Progression” in the Civil Service in line with Chapter 2 Section 5 (020501, 020503, 020504, 020505 & 020506 and Section 7 (020701, 020702 and 020704 of the Rules, being the GROUNDNORM regulating the Civil Service in Nigeria and applicable to the States.

 

  1. An order nullifying the step down of the Claimant by two (2) Grade Levels at the time of Claimant’s integration from the Bayelsa State Post Primary Schools Board into the mainstream Civil Service Ministry of Justice, the rejection of Claimant’s Recommendation/APAR FORM and correcting the Claimant’s Progression in line with the Rules of engagement and as at when due.

 

  1. An order for the payment of the Sum of Fifteen Million, Nine Hundred and Twelve Thousand, Three Hundred Eighty One Naira, Six Kobo (N15, 912, 381.6) as the differences in the salaries and emoluments due to the Claimant in line with his due Progression in the Service and Career.

 

  1. An order for the payment of the Sum of Twenty Five Million Naira (N25, 000,000.00) only as General and Exemplary Damages.

 

  1. An order for the payment of the sum of One Million, Five Hundred Thousand Naira (N1, 500, 000.00) against the 5th defendant for the arbitral use of the Public Office that resulted to this action, as cost of this Litigation.

 

  1. The Defendants filed their Statement of Defence together with other accompanying processes on the 28th of October, 2024, which were however regularized on the 18th of November, 2024. The Claimant filed a Reply to the Statement of Defence together with a List of additional exhibits and additional witness statement on oath on the 5th day of November, 2024 (though the stamps on some of the processes reflect 5th of December, 2024).
  2. Trial in the suit commenced on the 28th of January, 2025, when the Claimant opened his case and testified as CW. The witness identified and adopted his deposition which was filed on the 11th of September, 2024 and the additional deposition he made on the 5th of December, 2024. The following documents were tendered by the claimant and admitted by the Court, albeit under protest with respect to the document in the name of Dede Ofulu John dated 13th of March, 2017.

 

  1. The CTC of the Transfer of Service dated 13th of March, 2017 in the name of Dede Ofulu John ------ exhibit CW1 (under protest).
  2. The copy of the letter of provisional offer of pensionable teaching appointment dated 16th of February, 1990  ----- exhibit CW2.
  3. The copy of the letter of appointment of Vice Principals for 2000/2001 dated 7th May, 2001  ---- exhibit CW3.
  4. The copy of the letter of integration into the mainstream of the civil service dated 7th September, 2004 ------ exhibit CW4.
  5. The copy of the letter of retirement dated 4th July, 2022 ----- exhibit CW5.
  6. The affidavit of loss of vital documents sworn to on the 22nd of May, 2024 ----- exhibit CW6.
  7. The copy of the promotion letter from Senior Master Grade Two (SMG.II) SGL 10 to Principal Master Grade Three (PMG. III) SGL 12 issued by the Bayelsa State Post Primary Schools Board.----- exhibit CW7.
  8. The CTC of the claimant’s application for transfer of service from Post Primary Schools Board as Classroom teacher to the Ministry of Justice as State Counsel dated 7th October, 2004 ------ exhibit CW8.
  9. The CTC of the Claimant’s letter to the Chairman of the Bayelsa State Civil Service Commission dated 11th July, 2005 ------- exhibit CW9.
  10.  The CTC of the letter signed by Preye Agedah, Esq. Solicitor-General/Permanent Secretary dated 20th April, 2021 ------- exhibit CW10.
  11.  The CTC of the Claimant’s notification of retirement dated 21st of April, 2022 ----------- exhibit CW11.
  12.  The CTC of the letter signed by Preye Agedah, Esq. Solicitor-General/Permanent Secretary dated 6th July, 2022 ----------- exhibit CW12.
  13.  The copy of the New Consolidated Salary Structure for Law Officers ---- exhibit CW13.
  14.  The CTC of the letter of Invitation on the letterhead of the State Civil Service Commission dated 29th January, 2015 ------ exhibit CW14.

The Claimant was cross-examined by the Defendants’ Counsel Ebinimi F. Burutolu on the 28th of January, 2025 and the 4th of March, 2025 before he was discharged without any re-examination. The claimant closed his case on the same 4th of March, 2025.

 

  1. The Defendants opened their defence on the 26th of March, 2025 by calling their sole witness Kemela Boro Thompson (a Chief Administrative Officer with the Bayelsa State Civil Service Commission) who testified as DW. He identified and adopted his statement on oath that was filed on the 28th of October, 2024. The following documents were tendered by the Defendants through DW and admitted by the Court without any objection from the Claimant’s Counsel:

 

  1. The CTC of the application for transfer of service from the Post Primary Schools Board as classroom teacher to Ministry of Justice as State Counsel dated 25th August, 2003 ----- exhibit DW1.
  2. The CTC of the letter of the Bayelsa State Post Primary Schools Board received by the State Civil Service Commission on the 30th October, 2003 --------- exhibit DW2.
  3. The CTC of the letter of the Civil Service Commission to the Ministry of Justice on request for vacancy dated 28th January, 2004 --------- exhibit DW3.
  4. The CTC of the letter of the Ministry of Justice to the Civil Service Commission on request for vacancy dated 16th of March, 2004 ------ exhibit DW4.
  5. The CTC of the letter of the Civil Service Commission to the Post Primary Schools Board on the claimant’s application for transfer of service dated 14th May, 2004 ----------- exhibit DW5.
  6. The CTC of the claimant’s letter to the Civil Service Commission dated 31st of May, 2004 ------------ exhibit DW6.
  7. The CTC of the letter of the Post Primary Schools Board dated 15th June, 2004 which forwarded the claimant’s acceptance of offer to the Civil Service Commission ----------- exhibit DW7.
  8. The CTC of the letter of the Civil Service Commission to the Ministry of Justice dated 4th of January, 2023 ------ exhibit DW8.
  9. The CTC of the document titled, ‘Barr. Jebba Joseph Olodiama’ dated 3rd January, 2023 --------- exhibit DW9.
  10.  The copies of pages 158 and 159 of the Schemes of Service ------ exhibit DW10.
  11.  Copy of the Public Service Rules with respect to secondment and transfer (Part III) ------- exhibit DW11.
  12.  The CTC of the Circular Ref: CCSC/01/VOL.IV/139 dated 25th May, 2022 ----------- exhibit DW12.
  13.  Copy of Rules 090208 and 090209 of the Public Service Rules ----- exhibit DW13.

 The witness was cross-examined by the Claimant who appeared in person on the 13th of May, 2025 before he was discharged without any re-examination. The Defendants closed their case on the same 13th of May, 2025.

 

  1. With the close of evidence in the suit, the parties were directed to file their final written addresses. While the Defendants’ final written address was filed on the 30th of May, 2025, the final written address of the claimant was filed on the 8th of July, 2025 but regularized on the 23rd of July, 2025. The Claimant also filed a List of Additional Authorities on the 21st of July, 2025. These processes were adopted on the 23rd of July, 2025 with Joseph Olodiama Jebba appearing in person as the Claimant, while Ebinimi F. Burutolu appeared with Inemotimi Teibowei for the Defendants.

 

THE CASE OF THE CLAIMANT:

  1. The Claimant avers that he was employed as a classroom teacher in 1990 in the then Rivers State but he became an employee of the Bayelsa State Government upon the creation of the State in 1996.  Upon the completion of his Law Degree program and call to the Nigerian Bar, he had his service transferred and integrated into the mainstream civil service as a State Counsel in the Ministry of Justice where he rose to the rank of a Deputy Director and Head of Garnishee Unit of the State Ministry of Justice before his retirement on the 16th of November, 2022. He pleads his due progression in the service pursuant to section 7 (020701, 020702 and 020704) of the Public Service Rules to include:
    1. 1990 offer of first appointment with a Nigerian Certificate of Education (NCE) Certificate on Grade Level 07.
    2. 1992 upon attainment of B. Ed Degree due Grade Level 08.
    3. 1995 after three (3) years according to the Rules ----- Grade Level 09.
    4. 1998 after three (3) years according to the Rules ---- Grade Level 10.
    5. 2001 after three (3) years according to the Rules ---- Grade Level 12.
    6. 2004 after three (3) years according to the Rules ----- Grade Level 13.
    7. 2007 after three (3) years according to the Rules ----- Grade Level 14.
    8. 2010 after three (3) years according to the Rules ------ Grade Level 15.
    9. 2014 after four (4) years according to the Rules ------- Grade Level 16.
    10. 2018 after four (4) years according to the Rules ------- Grade Level 17.

 

  1. According to the Claimant, while he was supposed to attain the rank of Salary Grade Level 17 on the 1st of January, 2018 in line with the order or progression contained in the Public Service Rules, the Defendants however downgraded and stepped him down by two (2) Grade Levels when he was being transferred and integrated to the Ministry of Justice thereby making him to lost nine (9) years of his service/career; (three (3) years of Grade Level 12 to 13 and six (6) years from Grade Level 10 to 13). This is because he was integrated to the Ministry of Justice on the 7th of September, 2004 to begin from the entry point of a Senior State Counsel on Salary Grade Level 10 when he was already on Salary Grade Level 13 at the Post Primary Schools Board, while two other officers who were also transferred or integrated the same period (Boniface Agulata Esq. and Ezougha Ogborodi Esq.) who were on Grade Level 09 at the Post Primary Schools Board/Department were integrated with a promotion to Salary Grade Level 10. That he protested to the Civil Service Commission through letters dated 7th of October, 2004, 11th of July, 2005, 5th of August, 2022 and 17th of February, 2021. That he retired as a Deputy Director on Salary Grade Level 16 on the 16th of November, 2022 which was just one month and fourteen days to his conventional promotion to the rank of Salary Grade Level 17.

 

  1. According to the Claimant, prior to his retirement, a Committee was set up by His Excellency Senator Duoye Diri to review the Salaries and Promotions of Civil Servants in the State, and when the Committee reviewed the files of officers in the State Ministry of Justice after the claimant appeared before the Committee on the 1st of July, 2022, they identified the injustice meted to him and recommended that he should be promoted to Grade Level 17. The Permanent Secretary of the Ministry of Justice was then asked to issue APER Form to the Claimant and to forward same to the Civil Service Commission. The said APER Form was then issued to him by the Solicitor General and Permanent Secretary Preye Agedah Esq which he filled before same was forwarded to the Civil Service Commission. That the registry of the Civil Service Commission refused to accept the form on the ground that the Chairman Dr. Peter Singabele must approve before such a form would be accepted. But when an administrative officer went to see the Chairman with it, he became furious and called another administrative officer Dickson Famous and directed him to take the form back to the Solicitor General and Permanent Secretary Ministry of Justice and to warn him never to send that kind of correspondence. The said APER Form was returned to the Ministry of Justice.

 

  1.  According to the Claimant, the action of the Defendants made him to lost salary Grade Level 12 salary for six (6) years, Grade Level 13 salary for six (6) years, Grade Level 14 salary for six (6) years, Grade Level 15 salary for six (6) years, Grade Level 16 salary for six (6) years and Grade Level 17 salary for four (4) years from 2018 due date for Grade Level 17. That his integration letter took effect from 7th September, 2004 which is different from his earlier dates of promotion and that of the date of first appointment. The discrepancies in the dates of promotion were corrected by one Sikoke who was the Chairman of the Civil Service Commission during the administration of Chief Timipre Sylva. He therefore pleads the salary differences as follows:

 

  1. Salary difference of Grade Level 10 to 13 (72 months) for 6 years – N2,160,231.84.
  2. Salary difference of Grade Level 12 to 14 (72 months) for 6 years --- N1, 772,434.8.
  3. Salary difference of Grade Level 13 to 15 (72 months) for 6 years --- N2, 412,427.68.
  4. Salary difference of Grade Level 14 to 16 (72 months) for 6 years --- N2, 667,906.
  5. Salary difference of Grade Level 17 from when due in 2018 (4 years and 10 months --- N6, 899,381.28.

Total sum due to the Claimant at all levels of Claimant’s progression breached -------- N15, 912, 381.6.

  1. That he served for 15 years in the Civil Litigation Department of the Ministry of Justice until his retirement from the service. He worked with H.P.M. Apeli as the Head of Department who retired voluntarily and T. Y. Abasi who was next in rank took over as Head of Department until he was appointed a Judge of the State High Court and Timi Songi who was next in rank took over as the Head of Department. When he was also appointed a Judge of the State High Court, the Claimant was the next in rank to be made the Head of Department but the Attorney General allegedly stopped him and sent someone to take over as the Head of Department. That one Ofulu Dede was sent to the Ministry of Justice and placed on Salary Grade Level 16 in 2017 and promoted to Salary Grade Level 17 in 2018 before his retirement in 2019. That since the transfer and integration of Ofulu Dede is not in breach of the Public Service Rules, the same Rules should be made to apply to all to enable him benefit from pre-retirement promotion having crossed into the 2nd half of his promotion term.

 

DEFENDANTS’ CASE:

 

  1. The Defendants aver that the tenure of the 5th Defendant as the Chairman of the Civil Service Commission elapsed in December, 2022. That the career progression sought would only have been possible if he had remained as a teacher with the Post Primary Schools Board.

 

  1. That sometime in 2003 the claimant applied to the 3rd defendant for transfer of service from the Post Primary Schools Board to the Ministry of Justice, and an offer of the only available vacancy of the post of State Counsel SGL 10 was made to the Claimant which he voluntarily accepted. That the claimant’s progression in the Ministry of Justice was supposed to be as follows:
    1. State Counsel   ---- GL 10 – 2004 (Transfer).
    2. Principal State Counsel ---- GL 12 – 2007 (Promotion)
    3. Asst. Chief State Counsel ----- GL 13 – 2010 (Promotion)
    4. Chief State Counsel --------- GL 14 – 2013 (Promotion)
    5. Assistant Director ------------ GL 15 – 2016 (Promotion)
    6. Deputy Director -------------- GL 16 – 2020 (Promotion).

 

  1. That due to inadvertence, the Claimant was however promoted as follows:
    1. State Counsel   ---- GL 10 – 2004 (Transfer).
    2. Principal State Counsel ---- GL 12 – 2006 (Promotion)
    3. Asst. Chief State Counsel ----- GL 13 – 2009 (Promotion)
    4. Chief State Counsel --------- GL 14 – 2012 (Promotion)
    5. Assistant Director ------------ GL 15 – 2015 (Promotion)
    6. Deputy Director -------------- GL 16 – 2019 (Promotion)

This inadvertence of the claimant’s failure to complete a minimum of 3 years before moving from GL 10 to GL12 was discovered when the claimant presented his applications and documents preparatory to his retirement from the service. That except for cases of special promotions pursuant to Rule 020607(b) of the Public Service Rules 2008, the minimum number of years an officer on GL 10 to GL 14 should spend before being promoted to the next Grade Level is three (3) years.

 

  1. According to the Defendants, the 3rd defendant as the body vested with the power of appointment, confirmation, promotion, discipline and retirement of civil servants has the power to effect permanent or temporary transfer of desiring officers in the State Civil Service. And that, officers are transferred into the State Civil Service where there exist vacancies to absorb such officer(s), and by the Guidelines on appointment, promotion and discipline, no officer having accepted a position on transfer lower than that for which he/she applied, shall after assumption of duty come back to request for review of rank and grade level to be at par with his colleagues. 

 

  1. That while the deadline for the submission of the Annual Performance Evaluation Report (APER) Form for the 2022 promotion exercise was 17th of June, 2022, the claimant’s APER Form was submitted on the 24th of June, 2022 and the 3rd defendant acted within its powers to reject the form. The Claimant as someone on Senior Management Cadre (GL 15 – GL 17) was supposed to submit his APER Form through the Office of the Head of Service but he did not submit same through the Office of the Head of Service as required. The issues of promotions and upgrade of officers are the duties of the 3rd defendant and not that of the special Wages and Salaries Review Committee set up by the State Governor, and the report of the said Committee did not recommend that the claimant should be promoted to GL 17 as alleged by him.

 

  1. The Defendants plead further that, the schedule of duties of a classroom teacher is quite distinct from that of a State Counsel, and the Claimant was a new wig at the time of his transfer to the Ministry of Justice, and therefore lacked the cognate experience and expertise to have been given a lateral transfer and placed as an Assistant Chief State Counsel on GL 13. Having accepted his transfer and placement on GL 10, he cannot turn around to complain of alleged maltreatment. That by section 090208(b) of the Public Service Rules any complaint brought outside the statutory period of six (6) months from the date of the act complained of cannot be heard by the Civil Service Commission. 

 

DEFENDANTS’ SUBMISSIONS:

 

  1. The learned Counsel for the Defendants submitted these Issues for the determination of the Honourable Court:

 

  1.   Whether the Public Service Rule as the grundnorm could be waived, put aside or disregarded in cases of Employment, Promotion, Transfers, Discipline and Termination?

 

  1. Whether the Bayelsa State Civil Service Commission acted in tandem with the Public Service Rules upon the transfer of the Claimant to the Ministry of Justice and whether claimant can complain of injustice over an act he willfully participated in?

 

  1. Whether this suit is properly instituted against the 5th Defendant (Dr. Peter Singabele) in his personal capacity?

 

  1. Whether by the provisions of the Public Service Rules, this action is not statute barred?

 

  1. Whether the Claimant has discharged the burden of proof placed on him to be entitled to any of the reliefs sought against the Defendants?

 

  1. It was submitted on Issue one (1) that, laws and rules are made to guide human activities to ensure orderliness, and that the Public Service Rules is the guiding law and regulation for officers in the Public Service. That the Defendants followed the provisions of the Public Service Rules in the consideration of the claimant’s transfer of service.

 

  1. That a transfer is defined in the Public Service Rules as ‘the permanent release of an officer from one scheduled service to another or from one class to another within the same service.’ That the Claimant was permanently released from the Post Primary Schools Board to the mainstream civil service. The schedule of a staff in the Post Primary School Board (teacher) and that of a State Counsel are not the same, and the claimant had just been called to the Bar with no cognate experience when he applied for the transfer. By Rules 020701(b) of the Public Service Rules, a minimum of 3 years is required for promotion in each grade level for 07-14 and 4 years minimum for grade level 15-17 before one can be due for promotion to the next level. That the Claimant’s right of progression was followed from the time of his transfer to when he retired from the service. The Court was urged to resolve Issue one (1) in favour of the defendants. See Oko-Jaja V. FRSC and Ors (no citation) and Dalhatu V. AG Katsina State and Ors (2007) LPELR-8460(CA).

 

  1. With respect to Issue two (2), it was argued that by exhibit DW10 (pages 157-159 of the Schemes of Service, 2003), the rules on inter-service transfer/secondment are very clear. That the claimant who was called to the Bar in 2003 the same year he applied for transfer of service he had no cognate experience as a lawyer to warrant being placed on a higher level than the grade level given to him. Learned Counsel referred to Rule 020506(i)(c) of the Public Service Rules and argued that, while the claimant’s discipline or area of specialty was not in contention, the only available vacancy in the Ministry of Justice was for Grade Level 10 which was communicated to the Claimant vide exhibit DW5 and he accepted vide exhibit DW6. That he cannot now claim that he mistakenly accepted the available Grade Level nor heard to complain that he suffered any injury from acts of his own volition, referring to the case of Egbe V. Adefarasin (1987) LPELR-1032(SC) where it was held that, “the law, that volenti non fit injuria, still holds true. The plaintiff could not have suffered any injury from his own voluntary act.” That the claimant’s acceptance of the defendants’ offer as shown in exhibit DW6 crystallized the formation of a new contract between the parties even as his request that his promotion due date be maintained which was heeded to by the defendants in line with the scale as pertains to State Counsel until the claimants’ retirement in 2022. See College of Medicine of University of Lagos and Anor V. Adegbite (1973) LPELR-881(SC). That by exhibit DW11 no officer having accepted a position on transfer lower than that for which he applied shall after assumption of duty come back to request for review of rank and grade level to be at par with his other colleagues. That a party who consents or acquiesced to an irregular/wrong procedure cannot later be heard to complain of same, referring to the cases of Aliero V. Saidu and Ors (2023) LPELR-59951(SC) and Ibator and Ors V. Barakuro and Ors (2007) LPELR-1384(SC). The Court was urged to resolve Issue two (2) in favour of the Defendants, and hold that the defendants acted in line with the relevant and express provisions of the Public Service Rules 2008.

 

  1. On Issue three (3), learned Counsel to the defendants submitted that, since the 5th Defendant (Dr. Peter Singabele) was the Chairman of the Bayelsa State Civil Service Commission he was a public officer as defined in section 18(1) of the Interpretation Act, 2004. That it is therefore wrong to have sued the 5th defendant (an employee/servant) in his personal capacity on account of actions taken or acts committed in the course of performing his lawful duties. See Ifeanyi Chukwu (Osondu) Ltd V. Soleh Boneh Ltd (2000) LPELR-1432(SC) and AG Kaduna State and Ors V. AG Federation and Ors (2023) LPELR-59936(SC).

 

  1. It was further submitted that, since the claimant admitted during cross-examination that the 5th defendant was sued because he served as the Chairman of the Commission at the point of the claimant’s retirement and is an agent of the 1st defendant, the law is trite that an agent of a disclosed principal cannot be sued, and the 5th defendant as an agent of the Bayelsa State Government cannot be sued in his personal capacity for acts performed in his official capacity, relying on the cases of Chevron (Nig) Ltd and Anor V. Britannia-U (Nig) Ltd and Ors (2018) LPELR-43899(CA), MV Caroline Maersk and Ors V. Nokoy Investment Ltd and Ors (2002) LPELR-3182(SC) and Ani and Ors V. Out and Ors (2023) LPELR-59602(SC).

 

  1. It was further argued that, the 5th Defendant acted within the purview of the Public Service Rules on the claimant’s submission of APER Forms for Senior Management Cadre (GL. 14 – GL16) which is done through the Office of the Head of Service for recommendation as provided in exhibit DW12. The 5th defendant was therefore within his right to reject the claimant’s APER form as it failed to follow the prescribed procedure of passing through the Office of the Head of Service but was rather submitted after the deadline for submission of APER Forms for that year, and also through the Office of the Solicitor General/Permanent Secretary of the Ministry of Justice. That while the deadline for submission stipulated by the Commission was 17th June, 2022, the claimant submitted his APER Form on the 24th of June, 2022, and the alleged recommendation by the Committee was made on the 1st of July, 2022 after the deadline had expired. That a condition precedent is one which delays the vesting of a right until the happening of an event, relying on the case of Nigercare Development Co. Ltd V. Adamawa State Water Board and Ors (2008) LPELR-1997(SC) at page 18 para. C. 

 

  1. That there is nothing before the court showing the purported recommendation by the said Special Committee, and the maker of exhibit CW12 was not called as a witness to speak on the document. That exhibit CW12 is therefore a mere documentary hearsay which is inadmissible in evidence, relying on the cases of Adamu V. Lado and Ors (2023) LPELR-61273(CA) and Momodu V. State (2025) LPELR-80593(SC). That by law the powers to appoint persons to hold or act in offices in the public service (including the power to make appointments on promotion and transfer and to confirm appointments) and also to dismiss and exercise disciplinary control over persons holding or acting in such office are vested in the 3rd defendant (Civil Service Commission) and not any committee. That a statement or recommendation by a committee cannot override provisions of the Public Service Rules and the 3rd defendant is not bound to act on such recommendation. See Shitta-Bey V. Federal Public Service Commission (1981) LPELR-3056(SC), Comptroller General of Customs and Ors V. Gusau (2017) LPELR-42081(SC), oloruntoba-Oju and Ors V. Abdul-Raheem and Ors (2009) LPELR-2596(SC) and NUP V. INEC (2021) LPELR-58407(SC).

 

  1. That the fact that the claimant failed to follow the condition laid down for the submission of APER forms has robbed the Claimant of the right to complain that the 5th defendant acted out of malice. The Court was referred to the case of Offoboche V. Ogoja Lg and Anor (2001) LPELR-2265(SC) on the definition of what an abuse of office entails. The Court was urged to resolve Issue three (3) in favour of the Defendants.

 

  1. With respect to Issue four (4), learned Counsel reproduced Rule 090208(b) of the Public Service Rules, and argued that the period allowed for submission of a complaint against a decision is six months, and same had since expired. That the claimant has waived his right of complaint against the decision taken 18 years ago thereby making his action statute barred. That the protest letters sent to the defendants do not stop the period of limitation prescribed by statute from running.  That the cause of action in this suit arose in 2004 when the claimant was integrated into the mainstream civil service, and he instituted the suit in 2022, hence the suit is statute barred. See Idachaba and Ors V. University of Agriculture, Makurdi and Ors (2021) LPELR-53081(SC), Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105, Eboigbe V. NNPC (1994)5 NWLR (Pt. 347) 649, Goodwill Company Ltd V. Calabar Cement Company Ltd and Ors (2009) LPELR-8351(CA), Oko and Ors V. AG Ebonyi State (2021) LPELR-54988(SC and Ambode V. Ministry of Foreign Affairs and Ors (2004) LPELR-11008(CA).

 

  1. The Court was urged to resolve Issue four (4) in favour of the Defendants and hold that the suit is statute barred because the claimant is now left with an empty and bare cause of action which is unenforceable.

 

  1. On the defendants’ Issue five (5), it was posited that, the claimant failed to show any loss he suffered due to the actions of the Defendants and is therefore not entitled to any of the reliefs he is seeking from the Court. That by exhibits DW1 – DW6 there is a presumption of regularity pursuant to section 168(1) of the Evidence Act, and the onus is on the claimant to rebut the presumption. The Court was urged to take judicial notice of paragraph 5 of the deposition of DW1 pursuant to section 122(2)(m) of the Evidence Act and the case of Akinola V. VC University of Ilorin (2005) All FWLR (Pt. 259) 1934 at 1964, paras C-D. That the claimant who is seeking an equitable remedy from the Court must come to equity with clean hands, relying on the case of Dana Impex Ltd V. Aderotoye (2006) All FWLR (Pt. 308) 1338 at 1358 para E.

 

  1. It was further posited that the claimant must succeed on the strength of his case and not on the weakness of the Defendants’ case, relying on the cases of Ukaegbu V. Nwololo (2007) All FWLR (Pt. 466) 1852 at 1881, paras B-E, Iloabuchie V. Iloabuchie (2005) 13 NWLR (Pt. 943) 695 at 718 paras E-F, Ovivie and Ors V. Delta Steel Co. Ltd (2023) LPELR-60460(SC) Folarin V. Augusto (2023) LPELR-59945(SC) and Adeniran and Ors V. Adio and Anor (2024) LPELR-62732(SC).

 

  1. With respect to the document in the name of Dede Ofulu John, it was posited that the document has no evidential value because it was not addressed to the claimant. That the document was merely dumped on the Court, relying on the case of Patrick V. INEC and Ors (2024) LPELR-61643(SC). The Court was urged to dismiss the suit in its entirety.

CLAIMANT’S SUBMISSIONS:

 

  1. The Claimant submitted these three (3) Issues for the Court’s determination: 

 

  1. Whether the step down of Claimant was in any way supported by the provisions of Public Service Rules or whether the Bayelsa State Civil Service Commission was permitted under any Rule of Service to step down the Claimant’s progression by two (2) Grade Levels upon his transfer from the Post Primary Schools Board to the Ministry of Justice.

 

  1. Whether from the totality of Claimant’s case from the proof of evidence the Claimant has proven his case sufficient to sustain the grant of the Reliefs and Whether Vacancy within the meaning and purport of the Public Service Rules had any interpretation to step down the Claimant.

 

  1. Whether in view of the circumstances and the evidence before this court Claimant was Recommended for Promotion to Salary Grade Level 17 by the Salaries and Promotions Committee and whether the 5th defendant Dr. Peter Singabele’s acted within the Public Service Rules in his unilateral decision to reject Claimant’s APAR FORM Forwarded to the Civil Service Commission by the Solicitor General & Permanent Secretary on the Advice and Recommendation of the Salaries and Promotions Committee set up by the Governor of Bayelsa State Senator Douye Diri and whether his conduct was not an abuse of office.

 

  1. It was submitted on Issue one (1) that, the case of the claimant is mainly hinged on the deliberate decision of the defendants to step him down by two Grade Levels upon his transfer from the Post Primary Schools Board to the Ministry of Justice. Learned Counsel referred to the Provisions of Chapter 2 of the Public Service Rules dealing with transfers, secondments and promotions, particularly Rules 020503, 020506, 020701, 020702 and 020704, and argued that the provisions do not give room for the claimant’s step down. That if the Commission had not considered the claimant qualified for the transfer, the Commission should have declined the request rather than stepping the claimant down by two Grade Levels. That since the transfer of the claimant was not with a promotion to have jeopardised other officers in the department, he was never in breach of any condition at the time of his transfer to be stepped down by two grade levels thereby making him to lost nine years of his career.

 

  1. Learned Counsel drew the Court’s attention to the provisions of section 7 020701(b) of Chapter 2 of the Public Service Rules and submitted that the determination of the date of promotion is not meant to hold back the promotion due date of an officer. That the Defendants did not show the Court the available Grade Levels required in the Ministry of Justice and whether the number of vacancies required had been filled at the time of the claimant’s transfer to justify stepping down the claimant by two grade levels. That progression of a civil servant is as follows:

 

Grade Level 06 and below ---------- Minimum of 2 years.

Grade Level 07 – 14 ----------- Minimum of 3 years.

Grade Level 15 – 17 ---------- Minimum of 4 years.

 

  1. That a senior civil servant is expected to progress to Grade Level 17 in 26 years unless the officer faced disciplinary actions or failed to pass the relevant promotion exams. That from the claimant’s records of service he did not face any disciplinary panel to warrant him serving for 33 years only to end up in Grade Level 16. That since the Public Service Rules does not mention the step down of an officer on transfer of service, it was wrong for the defendants to interpret same into the statute while transferring the claimant to the Ministry of Justice. The Court was urged to give the referenced provisions of the Public Service Rules literal interpretation because they are clear and unambiguous. See Mkpa V. Mkpa (2010) 14 NWLR (Pt. 1214) 612, Awuse V. Odili (2004) 8 NWLR (Pt. 876) 481, Izedonmwen V. U.B.A. Plc (2012) 6 NWLR (Pt. 1295) 1 and Kings Planet International V. C.P.W.A. Ltd (2014) 2 NWLR (Pt. 1392) 602(CA).
  2. That the decision of the defendants vide exhibits DW1 – DW7 is not just and also void and a nullity for non-compliance with the provisions of the Public Service Rules, and the claimant is within his right to seek to enforce his right, relying on the cases of Adebayo V. Benue State University (2021) All FWLR (Pt. 1101) 956 and Alhaji Rabiu Buseri V. Olabisi Williams (1973) 3 ECSLR 518. That the defendants’ act of illegality was the fact that they made the claimant to believe that a lawyer coming into the Ministry of Justice begins from Grade Level 10 hence Boniface Agulata and Ezougha Ogborodi who were Grade Level 09 officers were moved to start with him on Grade Level 10 when he was already a Grade Level 13 officer, and he accepted on the mistaken belief that it was properly done. That the agreement is therefore unenforceable and void because of the vitiating factor of mistake. A contract is void for the following vitiating factors, fraud, mistake, undue influence, illegality, restraint of trade and want of privity or consent. See Orojo, Nigerian Commercial Law Vol. 1 at page 457 para. 8.35, S. O. Tonwe, Labour Law in Nigeria Cases and Material Vol. 1, The Law of Contract of Employment at pages 35 and 36, Prof. Akintunde Emiola, Nigerian Labour Law at page 30, Sam Warri Esi V. Moruku (1940) 15 NLR 116. The Court was urged to resolve Issue one (1) in favour of the Claimant.

 

  1. With respect to Issue two (2), it was argued that the standard of proof in any civil case is on the preponderance of evidence, and the claimant has the onus to prove his case to the satisfaction of the Court, referring to the cases of Gastrade International V. Commissioner of Custom, Kandla (2025) INSC 411 and FRN V. Iweta (2013) 3 NWLR (Part 1347) 285SC. That the Claimant has proved that he was stepped down by two Grade Levels which is not provided for in the Public Service Rules, and also that the Committee on Salaries and Promotion recommended him for promotion to Grade Level 17 before his exit from the service in November, 2022. That he has also proved that the 5th defendant unilaterally rejected his APER Form which was forwarded on the Committee’s directive. That since these pieces of evidence by the claimant have not been challenged by the defendants, the court has the duty to act on the unchallenged and uncontroverted evidence and accept it as the true version of the case. See Nriri V. Erhurhobara (1991) 2 NWLR (Part 173) 252 at 262, Leadway Assurance Co. Ltd V. Zeco Nigeria Ltd (2004) 6 MJSC at 188-189, paras G-A and Olaloye V. AG Osun State (2015) All FWLR (Part 774) 37 at 71 para H.

 

  1. That the meaning and the purport of the word “vacancy” in the Public Service Rules is not to drop an employee either for new employment or in the case of transfer of service, but that a particular rank was available in a Ministry for consideration to transfer an officer. That were a vacancy for a post is unavailable, the appropriate action is to keep the application in view (KIV) until when there is vacancy and not to transfer on a lower rank. 

 

  1. Learned Counsel reproduced some of the answers elicited from DW1 during his cross-examination and submitted that, the Public Service Rules laid down a uniform standard and procedure for all and does not give room for selective application of the standards by selective placement. The Court was urged to resolve Issue two in favour of the Claimant.

 

  1. On Issue three (3), learned counsel posited that, even though the Salaries and Promotions Committee set up by His Excellency the Executive Governor Senator Douye Diri recommended vide exhibit CW12 that the claimant should be promoted to Salary Grade Level 17 as a special case, the 5th Defendant Dr. Peter Singabele as the Chairman of the Commission maliciously rejected the recommendation on the ground that it was wrongly routed. That since it was not a case of regular promotion but on a special case, there was no need to have routed it through the normal channel. That a public officer as an appointee of the government is an agent of the government and is entrusted with the duty to act within a defined scope or borders, and the 5th defendant does not have the powers to suo motu reject the recommendation, and refuse to attend to exhibits CW5, CW8, CW9, CW10, CW11 and CW12. That an agency exists where one has authority or capacity to create legal relationship between a person occupying the position of principal and third parties. That where an agent acting for the principal exceeds the scope or limit of his authority and acts recklessly, he would be held personally liable. See Kings Planet International V. C.P.W.A. Ltd (2014) 2 NWLR (Part 1392) 602, Delta Steel Nig. Ltd V. American Computer Technology Inc (1999) 4 NWLR (Part 597) 53 and Cotecna International V. Churchgate (Nig) Ltd (2010) 18 NWLR (Part 346).

 

  1. Learned Counsel reproduced the definition of ‘abuse’ in the Black’s Law Dictionary (6th Edition) and posited that, the 5th defendant abused his office when he used his office against the claimant’s legitimate interest and to the advantage of others. That a public servant in the service of any government (federal or state) must be subject to the laws and obey them, referring to the case of George V. FRN (2011) 19 NWLR (Part 1254) 1. The Court was urged to resolve Issue three in favour of the Claimant, and hold that the conduct and disposition of the 5th defendant amount to an abuse of office.

 

  1. It is apposite to note that the Claimant responded to some of the arguments in the Defendants’ final written address. With respect to the Defendant’s Issue one (1), it was responded that the Public Service Rules has set a uniform standard to regulate all cases of employment, promotion, transfers, discipline and termination, and must be followed. That the rules were not followed in the transfer of the claimant when he was stepped down by two Grade Levels.

 

  1. On the Defendants’ Issue two (2), it was responded that the entry point for lawyers into the Ministry of Justice is Grade Level 10 and not Grade Level 09 as posited by the Defendants’ counsel at paragraph 4.2.0 of their address. That the claimant was not seeking to be transferred on a Grade Level higher that his Grade Level at the time of the transfer, but that his Grade Level at the time of the transfer should be maintained.

 

  1. On the defendants’ Issue three (3), it was responded that, since the 5th defendant who acted as an agent of the State Government exceeded the scope of his authority and acted recklessly, he is personally liable and the suit against him is therefore competent. That it is therefore proper to sue him in his personal capacity.

 

  1. On the defendants’ Issue four (4) whether by the provisions of the Public Service Rules the suit is statute barred, it was responded that, the suit is not statute barred because by the provisions of section 2(a) of the Public Officers Protection Act, section 16 of the Limitation Law of Bayelsa State and section 22 of the Limitation Act, the limitation periods have been provided for. That since the injury inflicted on the claimant is a continuous one, it is not caught by the limitation period. See African Continental Seaways Ltd V. Nigerian Dredging Roads and General Works Ltd (no full citation) and Overseas Construction Ltd V. Creek International Ltd (1985) NWLR (Part 1) 105. That the provisions of the Public Service Rules relied upon by the defendants do not provide for when to institute a suit but when to lodge a petition with the Commission. That the claimant lodged his complaint on the 7th of October, 2004 just one month after the wrong complained of by the claimant, and he followed it up with exhibits CW9, CW10 and CW11.

 

  1. That the Public Officers Protection Act does not apply to cases of continuance of damages or injury, and to cases where the officer acted outside the colour of his statutory duty or constitutional duty. See Ibrahim V. Judicial Service Committee Kaduna State and Anor (1997-1998) All NLR 302SC, AG Rivers State V. AG Bayelsa State and Anor (2013) 3 NWLR (Part 1340) 123 at 148, Aremo V. Adekanye (2004) All FWLR (Part 224) 2132, Nwankwere V. Adewunmi (1967) NWLR 45 at 49 and Anozie V. AG Federation (2008) 10 NWLR (Pt. 1095) 278 at 290-291.

 

  1. On the defendants’ objection to the documents in the name of Dede Ofulu John, it was responded that admissibility is guided by the relevance of the document and whether the document is pleaded. That once a document is relevant, it is admissible, referring to sections 4 – 12 of the Evidence Act and the cases of Torti V. Ukpabi (1984) 1 SCNLR 214 at 236-237, Avong V. Kaduna Refinery Ltd (2003) 3 FWLR 181 at 194-195 and Elegushi V. Oseni (2005) 23 NSCQR 193 at 216-217. That the document (CW1) is relevant to the facts in the suit, duly pleaded and certified by the Defendants, and was therefore properly admitted. The Court was urged to enter judgment in favour of the Claimant.

 

  1. It is pertinent to note that the Claimant filed a List of Additional Authorities on the 24th of July, 2025.

COURT’S DECISION.

 

  1. Having pored over the pleadings, evidence and submissions of the parties, I am of the considered opinion that the suit can be determined on the basis of this sole Issue which is the same as the Defendants’ Issue 5 and the Claimant’s Issue 2: Whether the Claimant has proved his case to be entitled to the reliefs sought in this suit. The points of law raised by the Defendants’ Counsel shall be considered in the course of this judgment rather than treating them as separate Issues for determination.  

 

  1. Before I resolve the lone Issue already identified for determination, it is apposite to first consider some of the points of law raised by the defendants’ counsel with respect to the competence of the suit, and whether the 5th defendant can be sued in his personal capacity being the then Chairman of the State Civil Service Commission.

 

  1. I have seen that the arguments of the Defendants’ Counsel on the defendants’ Issue four (4) is that the instant suit is statute barred by virtue of the provision of Rule 090208(b) of the Public Service Rules which stipulates that a complaint against a decision of the Commission must be submitted within a period of six months. That since the Claimant did not file the suit within six months from when the cause of action accrued (2004), and the suit was filed in 2022, the suit is statute barred and should therefore be dismissed.

 

  1. The referenced Rule 090208 of the Public Service Rules provides as follows:

 

“090208(a) A petition will not be entertained if it:

  1. Does not comply with Rule 090201;
  2. Deals with a case in which legal action is pending in a Court of Law;
  3. Is illegible or meaningless;
  4. Is worded in abusive, improper, or foul language; or
  5. Merely repeats the substance of a previous petition without introducing new relevant matter.

(b) A petition submitted more than six months after the decision complained of has been given, will also not be entertained, unless such delay is supported by valid reasons.”

  1. It is evident from the provisions of the Public Service Rules reproduced above that the provisions relate to submission of petitions to the Civil Service Commission and not filing of a suit in Court. I therefore hold without further ado that instant suit cannot be statute barred by virtue of the referenced provisions of the Public Service Rules. The objection lacks merit and same is hereby discountenanced.

 

  1. The second leg of the defendants’ objection is that the instant suit against the 5th defendant (Dr. Peter Singabele) is incompetent because as an agent of the 1st defendant (Chairman of the 3rd defendant) he cannot be sued in his personal capacity. The court was urged to strike out the name of the 5th defendant.

 

  1. I have seen from the Court’s records that the Claimant filed a Notice of Preliminary Objection on the 31st of October, 2023 challenging the representation of the 5th defendant by the defendants’ Counsel Inemotimi Teibowei or any other State Counsel from the State Ministry of Justice. The parties joined issues on the Objection which was subsequently argued before the Court. In a considered Ruling delivered on the 5th of December, 2023, my learned brother the Hon. Justice Bashar A. Alkali held as follows at page 10 of the Ruling:

 

“Though the fact in the case of PROVOST, LACOED V. EDUN (supra) may not be directly apposite to the fact of this case but it can be inferred from the underlined portion of the above holding of the Supreme Court that state counsel from the ministry of justice can competently represent members of staff or agents of public institutions who are sued in their official capacities in any court of law. In this instant case, the 5th Defendant/Respondent was sued alongside his principals in his official capacity, the 5th Defendant/Respondent is being represented by state counsel before this Court in the performance of their official duty. It will be irrational and illogical to deny the 5th Defendant/Respondent to be presented by the facility of his principal (that is counsel from the ministry of justice) in the course of whose duty the 5th Defendant/Respondent was sued. For this reason, this application is destitute of merit and it is accordingly dismissed.”

 

  1. Let me make the point that the finding of the court that the 5th defendant ‘was sued alongside his principals in his official capacity’ has not been set aside by either this Honourable Court or the appellate Court. To consider the contention of the defendants that the 5th defendant was sued in his personal capacity is to sit on appeal over the decision of my brother the Hon. Justice Bashar A. Alkali. In any case, the defendants’ Counsel who had argued in opposition to the Claimant’s Notice of Preliminary Objection that the 5th defendant is a public officer in the service of the State cannot now make a volt face and argue that the same 5th defendant is sued in his personal capacity. It is the law that a court cannot sit on appeal over the decision of a court of coordinate jurisdiction or over itself. See Hon. Rita Orji V. Mr. Francis Bartholomew Chima and Others (2023) 17 NWLR (Part 1912) 71 at pages 103 – 104, paras. C – C and Ichie Josiah Madu V. Humphrey Mbakwe and Anor (2008) 10 NWLR (Part 1095) 293 at page 316 para. G. This leg of the defendants’ objection is therefore overruled and discountenanced.

 

  1. With respect to the lone Issue identified for determination, it is apposite to reiterate the trite law that the onus/burden of proof in this suit is on the claimant to establish his claims before the Court on preponderance of evidence or balance of probability. In the case of Engr. Mustapha Yunusa Maihaja V. Alhaji Ibrahim Gaidam and Others (2017) LPELR-42474(SC), pages 61 – 62, paras. E-B, the Apex Court held as follows with respect to burden of proof in civil cases:

 

“Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why section 132 of the Evidence Act provides further that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”  See also sections 131, 132, 133 and 134 of the Evidence Act.

  1. In the bid to prove his case, the Claimant testified for himself as CW by adopting his depositions made on the 11th of September, 2024 and 5th of December, 2024 before tendering exhibits CW1 to CW14. Some of the highpoints of the answers elicited from the claimant during his cross-examination on the 28th of January, 2025 and 4th March, 2025, are that he was called to the Nigerian Bar in 2003 while he applied to be transferred to the Ministry of Justice in 2004, and he was one year at the Bar when he applied to be transferred. That Mr. Dede Ofulu was called to the Bar several years after him probably in 2007, and he did not know how old Dede Ofulu was at the Bar before his transfer. That he was qualified because he had one year experience and the Scheme of Service requires one year pupilage. That he was simply told that the entry point into the Ministry of Justice was Salary Grade Level 10, and that he was also informed that the vacancy available was Grade Level 10 that was why Ezougha Ogborodi and Boniface Agbulata were integrated the same time with him on Salary Grade Level 10 even though they were Level 09 officers. That he accepted the vacancy on Salary Grade Level 10 because of the mistaken belief of facts and he protested timeously when he realized the mistake. That he was not a new employee as his case was a continuation of service, but affirmed that generally promotions from SGL 10 to 12, SGL 12 to 13 and above are done after every 3 years. That he spent only two years before being promoted to SGL 12 because the mistake on his date of first appointment was later corrected by the Civil Service Commission. He affirmed that recommendations for promotion from SGL 14 to SGL 16 is to be signed by the Permanent Secretary of the relevant Ministry through the Office of the Head of Service to the Civil Service Commission. That he is not aware that the deadline for the submission of APER Form was on the 17th of June, 2022, but that his APER Form was submitted directly from the Ministry of Justice on 24th of June, 2022 because his case was a special recommendation, and that the APER Form was outrightly rejected by the Chairman of the Civil Service Commission. He affirmed that he received salaries on the grade levels he was placed on and has been receiving his pensions after his retirement. He also affirmed that Dede Ofulu was called to the Bar in 2007 and was 10 years at the Bar when he was transferred to the Ministry of Justice while he was one year at the Bar when he was transferred.

 

  1. The evidence in chief of the defendants’ sole witness Kemela Boro Thompson is as contained in his deposition filed on the 28th of October, 2024 which he adopted on the 26th of March, 2025. The witness tendered exhibits DW1 – DW13. Some of the highpoints of the answers elicited from the witness during his cross-examination on the 13th of May, 2025 are that, he serves with the Bayelsa State Civil Service Commission, Office of Commissioner II, and that he was in Court to give evidence for the Civil Service Commission. That even though the department in charge of retirement discovered the inadvertence in the claimant’s promotion to SGL 12, nothing was done because he had been promoted up to SGL 15. That civil servants on SGL 01 – 06 are due for promotion every two years, SGL 07 – SGL14 every three years and SGL 15-SGL 17 every four years, and the period are counted from the year the officer was confirmed. That the purpose of the invitation of the claimant by exhibit CW14 was to see the Commissioner I, and since he was not at the meeting, he would not know the outcome of the meeting. That a transfer or integration is a continuation of the appointment and not a fresh appointment. That from exhibit CW1 Dede Ofulu John was transferred in 20017 as a Deputy Director on SGL 16 and he was promoted in 2020 w.e.f. 1st July, 2019 and the retirement date is 1st September, 2020 having served for 35 years. That vacancy within the meaning of the Public Service Rules postulates that a particular rank is either available or not available. That in 2004 there was no vacancy for Salary Grade Level 13 in the Ministry of Justice, but that he did not know the number of lawyers in the Ministry of Justice in 2004 and 2017 when Dede Ofulu John was transferred to the Ministry of Justice. That he is not aware that 33 lawyers employed temporarily are now permanent staff heading some of the departments in the Ministry, but affirmed that the Public Service Rules guides both the Civil Service Commission and the civil servants. That the Commission has the power to either accept or reject the recommendation of the committee set up by the Governor. That exhibit CW12 was authored by Preye Agedah (Solicitor General/Permanent Secretary). That the recommendation of a special committee set up by the Governor is not synonymous with regular or routine promotion by the Civil Service Commissio. He affirmed that Dede Ofulu was a primary teacher when he was integrated  while the claimant was a secondary school vice principal when he was integrated, and that by the Schemes of Service, the entry point for lawyers in the Ministry of Justice is Salary Grade Level 10. That the open registry is the official receiver of correspondences in the Civil Service Commission, and a person who wrongly routes a document to the Civil Service Commission will be advised to route it through the appropriate channel.

 

  1. Having evaluated the entirety of the evidence on record, I have seen from the state of the pleadings and the evidence on record that the case of the claimant is predicated on his transfer of service from the Post Primary Schools Board on Salary Grade Level 13 to the State Ministry of Justice on Salary Grade Level 10. His grouse is simply that since he was on Salary Grade Level 13 and a Vice Principal at the Post Primary Schools Board, he should have been given a lateral transfer of service and be transferred to the State Ministry of Justice on the same Salary Grade Level 13. The claimant was employed vide exhibit CW2 dated 16th February, 1990 and appointed a Vice Principal vide exhibit CW3 dated 7th May, 2001. Exhibit CW7 is his promotion to Salary Grade Level 12, exhibit CW6 is an affidavit of loss of document sworn to by the claimant on 22nd May, 2024, exhibit CW11 is his notification of retirement, exhibit CW14 is a letter inviting the claimant to meet with Commissioner 1 in the Civil Service Commission, exhibits CW8, CW9 and CW10 are his appeals to the Chairman of the Civil Service Commission, exhibit CW13 is a copy of the New Consolidated Salary Structure for Law Officers, exhibit CW12 is a letter written by the Ministry of Justice to the Civil Service Commission forwarding the claimant’s APER Forms for the 2022 annual promotions and exhibit CW5 is the claimant’s retirement letter dated 4th July, 2022 indicating that he retired on the 16th of November, 2022 as a Deputy Director on Salary Grade Level 16.

 

  1. It is in evidence that the claimant applied for transfer of service from the Post Primary Schools Board to the Ministry of Justice vide exhibit DW1 dated 15th of August, 2003, and the application was forwarded to the Civil Service Commission vide exhibit DW2 dated 29th of October, 2003. By exhibit DW3 dated 28th January, 2004, the Commission requested the Ministry of Justice to state if there was vacancy and the designation to absorb the claimant, and by exhibit DW4 the Ministry informed the Commission that the available vacancy was for Salary Grade Level 10 as the claimant had just finished from the Law School with no post call cognate experience other than the one year.

 

  1. Suffice it to state that, the Civil Service Commission wrote to the claimant exhibit DW5 dated 14th of May, 2004 requesting him to state whether or not he would accept the rank of State Counsel on Salary Grade Level 10, and the claimant by exhibit DW6 dated 31st of May, 2004 informed the Commission that he was ‘ready and prepared to serve the state in any capacity I am called or offered to serve, therefore if that is the only available capacity I could be considered, I gladly accept the placement on grade level 10 but wish to humbly request that the Civil Service promotion due date be maintained.’ The claimant’s acceptance of the offer was forwarded to the Commission by the Post Primary Schools Board vide exhibit DW7 dated 15th June, 2004. It was sequel to the claimant’s acceptance of the available vacancy of Salary Grade Level 10 that the Civil Service Commission issued exhibit CW4 which is the letter of integration into the mainstream of the civil service dated 7th of September, 2004 which approved the transfer of the claimant from the Post Primary Schools Board to the Ministry of Justice as Senior State Counsel on Salary Grade Level 10.

 

  1. The issue is whether the claimant having accepted to be transferred to the Ministry of Justice on Salary Grade Level 10 can be heard to complain after he had served in the Ministry and rose through the ranks from Salary Grade Level 10 to the post of a Deputy Director Salary Grade Level 16 before his retirement on the 16th of November, 2022. I do not think so. The Claimant who was duly informed of the available vacancy and also asked to indicate whether he would accept or not, emphatically and unambiguously wrote to the Civil Service Commission vide exhibit DW6 that he was ready and prepared to serve in any capacity and gladly accepted the offer to be placed on Salary Grade Level 10 before the Commission went ahead and issued the letter of transfer. His contention that the transfer is void because he accepted same on the mistaken belief that he was properly placed on Salary Grade Level 10 is of no moment. The only request he made in exhibit DW6 was for the Commission to maintain his promotion due date. It is in evidence that the said promotion due date has been rectified by the Commission. I therefore hold that having accepted the available vacancy and served till he retired as a Deputy Director on Salary Grade Level 16, he cannot now complain that he was improperly placed. This position is buttressed by exhibit DW11 at Part III relating to secondment and transfer which prohibits an applicant who has accepted an offer of a position that is lower than that for which he initially applied from asking for upgrading or review on comparison with his erstwhile or other colleagues after assumption of duty.

 

  1. Another germane point to resolve is whether the claimant as a Vice Principal on Salary Grade Level 13 (even though the documents on record show that he was on Salary Grade Level 12 when he applied for the transfer) was properly placed on Salary Grade Level 10 upon his transfer to the Ministry of Justice.
  2. It is in evidence that the claimant was called to the Nigerian Bar in the year 2003 being the same year he applied to be transferred to the Ministry of Justice from the Post Primary Schools Board vide exhibit DW1. At the point of the issuance of exhibit CW4 to the claimant on the 7th of September, 2004 approving his transfer of service he had one year post call experience. I therefore agree with the defendants  that at the time of the transfer the claimant did not have the required experience to be given lateral transfer and placed on Salary Grade Level 13 which was his Salary Grade Level at the Post Primary Schools Board. The Ministry of Justice is a professional ministry like the Ministry of Health, hence the emphasis on the experience of applicants seeking for fresh appointment or transfer of service. The contention of the claimant is akin to a fresh medical graduate asking that because he is a Salary Grade Level 13 officer in a ministry or MDA which has no relationship with medicine, he should be transferred laterally to the Ministry of Health or a hospital where he will practice his freshly acquired medical qualification on the same Salary Grade Level 13. The Schemes of Service has clearly provided for the entry points for every cadre in the service, and the requisite experience to be considered in employing or placing officers in the service. By exhibit DW10 the entry point for lawyers in the Bayelsa State Ministry of Justice is Senior State Counsel Grade Level 10. I am aware that at the Federal Ministry of Justice the entry point is State Counsel Salary Grade Level 09. The requisite experience for a Senior State Counsel Salary Grade Level 10 is at least one year post call cognate experience. I therefore hold on this point that even if the claimant was a School Principal and a Director on Salary Grade Level 17 before qualifying as a lawyer he could not have been given lateral transfer to retain his Grade Level since he had just about one year post call experience. The Schemes of Service and schedule of duties of teachers are not the same as that of lawyers in the Ministry of Justice, so his experience as a teacher cannot count for the purpose of considering his transfer to the Ministry of Justice. If he had wanted to retain his Grade Level 13 and rise to the post of a director on Salary Grade Level 17, then he should have either remained in his teaching job or transfer to a ministry or agency where his experience as a teacher would have counted or be reckoned with.

 

  1. He is comparing his case with the cases of Dede Ofulu John, Ozougha Ogborodi and Boniface Agbulata. While I have seen from exhibit CW1 that Dede Ofulu John was transferred to the Ministry of Justice on the 13th of March, 2017 from the State Senior Secondary Schools Board on the post of Deputy Director Salary Grade Level 16 and promoted to the post of Director Salary Grade Level 17 with effect from 1st July, 2019 before his retirement on the 1st of September, 2020, it is however in evidence that the said officer was called to the Nigerian Bar in 2007 and was ten years post call at the time of his transfer in 2017. As for Ozougha and Boniface, I hold that they were properly placed because they were Salary Grade Level 09 officers prior to the transfer, and since the entry point in the Ministry of Justice is Salary Grade Level 10, they could not have been given a Grade Level lower than 10, which in any case does not exist in the Ministry with respect to lawyers.

 

  1. I have also seen that the claimant is equally relying on exhibit CW12 to contend that he was recommended to be promoted to Salary Grade Level 17 by a Committee on Salaries and Promotion which was set up by His Excellency Senator Douye Diri, the Executive Governor of Bayelsa State. Even though I have seen from exhibit CW12 that the Solicitor General/Permanent Secretary of the Ministry of Justice indicated in the letter that the Committee recommended the claimant’s promotion to the post of Director Salary Grade Level 17 before his exit from the service on the 16th of November, 2022 being one month to his date of promotion to Grade Level 17, and that it was his entitlement to be so promoted, the report of the said Committee is however not before the Court. Even if there was such a recommendation, it remained within the realm of recommendation because it is the constitutional mandate of the Civil Service Commission to appoint, promote, discipline and retire civil servants and not any Committee. See Part II (A) of the Third Schedule to the 1999 Constitution (as amended) relating to State Executive Bodies established under section 197 of the Constitution.

 

  1. Suffice it to add that, by section 202 of the 1999 Constitution (as amended), the power of the Civil Service Commission just like the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person on the issues of appointments or the exercise of disciplinary control over persons. I therefore hold that the Civil Service Commission was not bound to accept any recommendation of any Committee on Salaries and Promotion that the Claimant should be considered for special promotion to the post of a Director Salary Grade Level 17. In any case, he was not yet due for promotion to the post even if he had one day to the due date.
  2. In the final result, I do not find merit in the case of the claimant. The sole Issue is therefore resolved against of the claimant, and the suit is hereby dismissed for want of proof. Judgment is entered accordingly. The parties are to bear their costs

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

 

Joseph Olodiama Jebba appeared in person as the Claimant.

Ebinimi F. Burutolu (Chief State Counsel, Bayelsa State Ministry of Justice) appears with Inemotimi Teibowei (Principal State Counsel, Bayelsa State Ministry of Justice) for the Defendants.