IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

DATED THIS 13^TH DAY OF MAY, 2026

SUIT NO: NICN/AK/20/2025

BETWEEN:

MR. OLABISI ABIDEMI BABALOLA     …………..................CLAIMANT 

AND

1. THE GOVERNOR OF OSUN STATE
2. THE ATTORNEY GENEGAL OF OSUN STATE
3. THE HEAD OF SERVICE OF OSUNSTATE    ............DEFENDANTS
4. OSUN STATE CIVIL SERVICE COMISSION             

REPRESENTATION

I.A Mikaheel Esq. for the Claimant

Olaoluwa Folayan Holding brief of 

Olakunle Lawal Esq. for the Defendants

                                                            

            JUDGMENT

INTRODUCTION

1. This suit raises an important question in public service administration: whether a public officer who had been adjudged eligible for promotion and invited for promotion interview can subsequently be denied consideration solely on account of being on an approved leave of absence, where no such disqualification is expressly provided for in the applicable Public Service Rules.
2. The claimant, a legal officer in the Osun State Civil Service, contends that he was denied fair consideration for promotion from the post of Deputy Director, Grade Level 16, to Director, Grade Level 17, on the basis of an alleged “recent policy” barring officers on leave of absence from promotion during the pendency of such leave.
3. The defendants deny this contention and maintain that the claimant did not satisfy the applicable criteria for promotion under the Osun State Public Service Rules, particularly the requirement relating to continuous supervision and performance evaluation.

THE CLAIMS

QUESTIONS FOR DETERMINATION

1. Whether upon a proper construction of the provisions of Rule 020701(a), (b) and (d) (iii) under section 7 of chapter 2 of the Osun State Public Service Rules and the claimants terms of employment as contained in his letter of appointment dated 21/5/2004 and the claimant not being under any disciplinary action, the defendants can deprive the claimant his earned promotion from Deputy Director GL16  to the position of DirectorGL17?
2. Whether upon a proper construction of the provisions of Rules 100101,100201(m) and 100231 under sections 1 and 2 of the Osun State Public Service Rules, the entire provisions of the Osun State Public Service Rules and the content of the claimant’s letter of approval of leave of absence with ref. No. SMD.254/Vol. VII/220 dated 5^th March, 2025, the defendants are empowered or authorized to deprive the claimant his earned promotion from the position of Deputy Director GL.16  to the position of Director GL.17 based on the ground that he was on leave of absence.
3. Whether having regards to the provisions of Rule 020701(a), (b) and (d) (iii) under section 7 of chapter 2 of the Osun State Public Service Rules and the claimants terms of employment as contained in his letter of appointment dated 21/5/2004, Rules 100101,100201(m) and 100231 under sections 1 and 2 of the Osun State Public Service Rules, the entire provisions of the Osun State Public Service Rules, international labour practices and standard, and the content of the claimant’s letter of approval of leave of absence with ref. No. SMD.254/Vol. VII/220 dated 5^th March, 2025, the decision of the defendants to deprive the claimant his earned promotion on the ground that he is on leave of absence, is arbitrary, discriminatory and amounts to abuse of administrative powers when none of the Rules guiding his employment prescribes such deprivation?

 

 

RELIEFS SOUGHT

1. A Declaration that having regard to the provisions of Rules 020701 (a), (b) and (d) (iii) under Section 7 of Chapter 2 of the Osun State Public Service Rules and the claimant’s terms of employment as contained in his letter of appointment dated 21^st May, 2004 and the claimant not being under any disciplinary action, the defendants cannot deprive the claimant his earned promotion from the position of Deputy Director GL. 16 to the position of Director GL. 17 in the services of Osun State Government.
2. A Declaration that having regard to the provisions of Rules 100101, 100201 (m) and 100231 under Sections 1 and 2 of the Osun State Public Service Rules, the entire provisions of the Osun State Public Service Rules and the content of the claimant’s letter of approval of leave absence with Ref. No: SMD.254/Vol. VII/220, dated 5^th March, 2025, the defendants are not empowered to deprive the claimant his earned promotion from Deputy Director GL. 16 to the position of Director GL. 17 in the service of Osun State Government based on the ground that he was on approved leave of absence.
3. A Declaration that denial of claimant’s earned promotion on the ground of being on approved leave of absence is not prescribed by or applicable to the claimant’s condition of service or terms of employment as contained in the provisions of Rules 020701 (a), (b) and (d) (iii) under Section 7 of Chapter 2 of the Osun State Public Service Rules, the claimant’s letter of appointment dated 21^st May, 2004, Rules 100101, 100201 (m) and 100231 under Sections 1 and 2 of the Osun State Public Service Rules, the entire provisions of the Osun State Public Service Rules and the contents of the claimant’s letter of approval of leave of absence with Ref. No. SMD.254/Vol. VII/220 dated 5^th March, 2025.
4. A Declaration that the decision of the defendants to deprive the claimant his earned promotion from the position of Deputy Director GL. 16 to the position of Director GL. 17 in the service of the 1^st defendant on the ground that he is on leave of absence is not provided for in the Osun State Public Service Rules, the claimant’s condition of service and terms of employment, amounts to unfair labour practice, a breach of international labour standard The defendants, by a motion of 10/2/2026, filed their counter affidavit, accompanied by a written address. The claimant, by a motion of 11/3/2025, filed a further affidavit accompanied by a written address.
5. An Order setting aside the decision of the defendants to deprive the claimant his earned promotion from the position of Deputy Director GL. 16 to the position of Director GL. 17 in the service of the 1^st defendant on the ground that he is on leave of absence.
6. An Order Directing the defendants to carry out, release or grant the claimant’s earned promotion from the position of Deputy Director, GL. 16 to the position of Director, GL. 17 and to ensure that the promotion takes effect from the date he ought to have been so promoted.
7. Cost of this action in the sum of 5,000,000.00 (Five Million Naira) paid to the claimant’s counsel to prosecute this case.
8. And for such further circumstances of this case.

FACTS OF THE CASE

5. The claimant was employed into the Osun State Civil Service on 21/5/2004 and rose through the ranks to become Deputy Director, Grade Level 16, with effect from 1/7/2021.
6. The claimant had been granted leave of absence without pay from 1/7/2019 to 1/7/2024. Upon resumption, he again applied for and was granted another leave of absence for two years commencing from March 2025.
7. The claimant states that despite being on leave of absence, his name appeared on the list of officers eligible for promotion interview to Grade Level 17 conducted on 5/8/2025. He attended the interview.
8. According to the claimant, he was informed in the course of the interview that there existed a “recent policy” preventing officers on leave of absence from being promoted during the pendency of such leave.
9. The claimant thereafter wrote letters of complaint and appeal to the Osun State Head of Service, but received no response.
10. The defendants, in opposition, contend that the claimant was not denied promotion because of leave of absence, but because he failed to satisfy the prerequisites for promotion under the Public Service Rules, particularly:
     a. continuous supervision under a reporting officer;
     b. annual performance evaluation reports for four years; and
     c. continuous active service.

 

AFFIDAVIT OF THE CLAIMANT

1. In a 35 paragraph affidavit, the claimant deposed that he is a state counsel and a deputy Director at GL .16 already qualified for promotion to Director, GL.17. He was employed on 21/5/2004 and rose through the ranks to become Deputy Director, GL.16 on 1/7/2021.
2. Sometimes in February, 2025, he applied for leave of absence without pay and it was granted.
3. While on the said leave, he received information that promotion interview would be conducted for his set and cadre already due for promotion as at 1/7/2025 from GL16 to GL.17 on 5/8/2025. All the five of them on GL.16 were listed for the promotion interview on 5/8/2025. He appeared before the committee/panel.
4. When he appeared before the panel, he was told that there was a recent policy that provides that anybody who is on leave of absence is not entitled to be promoted during the pendency of the leave.
5. He observed that no such policy existed and it was never communicated to the staff or on my approval for leave of absence and the committee promised to convey his case to the 3^rd and 4^th defendants but after waiting for 20 days and nothing was done, he wrote an appeal letter to the 3^rd defendant dated 25/8/2025 and a reminder on 29/9/2025.and another reminder on 3/11/2025 but none of the letters was replied.

WRITTEN ADDRESS OF CLAIMANT COUNSEL

6. In the written address accompanying the originating summons and adopted by I.A Mikaheel Esq. on 18/3/2026, in which all the issues were argued together, it was submitted that Rule 020701 (b) under section 7 of chapter 2 of the Osun State Public Service Rules provides that all officers who fall within the field of selection for any promotion shall be considered except those who are under disciplinary action.
7. That Rules 100101,100201 (m) and 10023 of sections 1 and 3   under chapter 10 of the Osun State Public Service Rules deals with types of leaves and leave Rules and there is no place where leave of absence is made the basis for deprivation of earned promotion, neither is there such provision in exhibits A and C, (claimant’s appointment letter and the approval for leave of absence without pay)
8. That the alleged policy on leave of absence relied on to deprive the claimant promotion does not exist.
9. That the 3^rd and 4^th defendants are creation of law with their powers in determining the fate and careers of public officers in the civil service. Any attempt to act outside the scope of the statutorily defined powers is subject to review by the courts. AMASIKE V THE REGISTRAR GENERAL, CAC & ANOR (2010) LPELR-456(SC); NANGIBO V OKAFOR & ORS (2003) LPELR-1938(SC); FCSC V LAOYE (1987)2 NWLR (PT. 706) 652 at 714.

 

COUNTER AFFIDVIT OF THE DEFENDANTS

10.   In a 31 paragraph counter affidavit deposed to by one John Oyetade Amusan, a Director, welfare department, Public Service Office, Osun State, for the defendants, he deposed that the claimant was not denied promotion to Grade level 17 based on a ‘recent policy’ in the Osun State civil service.
11.  That some of the prerequisites provided for by the Osun State Civil Service Rules before an officer can be eligible for promotion to the next grade include but not limited to;
12. Promotions are subject to satisfying minimum requirements declared by the CSC and the availability of vacancies.
13. The officer must have spent a minimum number of years on his last post. In the case of the claimant, a minimum of 4 years under the supervision of a reporting officer.
14. An officer must fall within the field of selection before he or she can be considered for any promotion.
15. The officer must not be under any disciplinary action.
16. Promotions are made strictly on the basis of competitive merit from among eligible candidates.
17. There is no break in service, salaries and allowances are not stopped.
18. Such officer must submit an annual performance evaluation report to be counter signed by the supervising officer, and the report covers 4 years continuously.
19. That the claimant, by a letter of 2/5/2019, applied for leave of absence to serve as a senior legislative aide to Senator Surajudeen Ajibola Basiru for period of 4 years from 1/7/2019 and same was granted by the 3^rd defendant for four years without pay by a letter of 16/5/2019.
20. That by a letter of 15/6/2023, the claimant applied for one year extension and was granted by the 3^rd defendant in a letter dated 7/7/2023 so the claimant was on leave of absence without pay from 1/7/2019 to 1/7/2024 before he wrote to the 3^rd defendant to be reinstated into the service.
21.  That about 8 months after the claimant was reinstated into the service, he wrote another letter dated 19/2/2025 to the 3^rd defendant requesting for another leave of absence for 2 years. The request for lave for two years starting 3/3/2025 was granted by a letter dated 5/3/2025.
22. That the claimant has only rendered service to the Osun State Civil Service for 8 months within the last 8 years.
23. That a civil servant who is on leave of absence does not render service to the state and is not placed under a reporting or supervising or superior officer during the period that such officer is on leave.
24. That the claimant did not satisfy the mandatory waiting period of 4 years under the supervision of a reporting officer and the claimant never submitted any annual performance evaluation report for a continuous period of four years in line with the provision of the Public Service Rules.

WRITTEN ADDRES OF DEFENDANTS’ COUNSEL

18.  In the written address, learned Olakunle Lawal of counsel to the defendants raised a preliminary issue and argued that the claimant seeks interpretation and application of the provisions of the Osun State Public Service rules but failed to place the said Public Service Rules before the Court and that makes the originating Summons fundamentally defective as this court cannot interpret what is not before it. Counsel urged the court to decline jurisdiction.
19. On the questions for determination, counsel also argued the questions together. Learned counsel submitted that this case relates to the issue of promotion which the appellate courts have held is not a right but a privilege and that the court cannot take the place of an employer to promote an employee. Counsel relied on NWOYE V FAAN (2019) LPELR-46402 (SC); PHILIP V ADASU, MUBI &ORS (2025) LPELR-81492(CA) and SHELL PET. DEV. V NWAWKA (2001) 10 NWLR (PT.720) 64 at 84.
20.  Counsel submitted that the claimant has failed to show how he has earned the promotion. That the claimant has been on leave of absence from 1/7/2019 up to the time of filing this suit but failed to disclose same. That the claimant never performed any task for which his competence for the next post could be ascertained.
21. Counsel submitted that Rules 020701 and 020702, 050102-050103, 050201,050301 -050303 of the Osun State Public Service Rules provide for the requirement and procedure for promotion of officers in the civil service and counsel reproduced the said Rules. 
22.  That it is clear from these provisions that;
    1. Promotions are subject to satisfying minimum requirements declared by the CSC and the availability of vacancies.
    2. The officer must have spent a minimum number of years on his last post. In the case of the claimant, a minimum of 4 years under the supervision of a reporting officer.
    3. An officer must fall within the field of selection before he or she can be considered for any promotion.
    4. The officer must not be under any disciplinary action.
    5. Promotions are made strictly on the basis of competitive merit from among eligible candidates.
    6. There is no break in service, salaries and allowances are not stopped.
    7. Such officer must submit an annual performance evaluation report to be counter signed by the supervising officer, and the report covers 4 years continuously.
23.  That the above shows that the claimant never met the criteria for promotion.

FURTHER AFFIDAVIT OF THE CLAIMANT

24.  In a 10 paragraph further affidavit deposed to on 17/3/2026 by the claimant to respond to the counter affidavit of one John Oyetade Amusan, deposed to on 10/2/2026, whom the claimant described as “of an unknown gender”, though I find that the deponent, John Oyetade Amusan, described himself as “male” and I take that to be his gender; the claimant deposed that he was only told about the recent policy at the point of interview.
25. .That he was qualified for promotion to the position of Director as his promotions has always come with his colleagues with whom he was appointed and his name was No.2 on the list of those qualified.
26.  That he remained a staff of the Osun state Government and all that he does at any other place at the pendency of his leave of absence as approved by the defendants is part of service to the state government.
27. That all his leave of absence were approved by the defendants.

CLAIMANT’S REPLY ADRESS

28. The learned Idrees Abiodun Mikaheel Esq. in his reply address submitted that the Osun State Public Service Rules is a subsidiary legislation and a by-law. COMPTROLER GENERAL OF CUSTOMS V GUSAU (2017) LPELR-42081 (SC) and so needs not be attached.
29. Counsel also raised a preliminary issue that the counsels to the defendants are private practitioners and the defendants, being government agencies and parastatals, only the Attorney General can represent them in court. For a private counsel to represent the defendants in court, they must have the express fiat of the Attorney General which the defendants’ legal team has not shown.
30.  That paragraphs 5, 6, 11, 24- 27 and 30 of the counter affidavit offend section 115 of the evidence Act in that paragraphs 5,6 and 30 are conclusions and legal arguments, Paragraphs 11and 24-27 of the counter affidavit are hearsay evidence. OKORO V NCDC (2025) LPELR-80676(CA) and that the court should strike out the counter affidavit as the remaining parts of the counter affidavit cannot stand alone.
31.  Counsel submitted that the entire argument canvassed by the defendants counsel do not address the issues raised by the claimant. A cursory look at the counter affidavit of the defendants depicts that the facts are admission of the facts deposed in the affidavit in support.

 

COURT’S DECISION

32. Both counsels have raised preliminary issues which can be treated by asking the following questions.
    1. Whether the defendants counsel, being private practitioners, can represent the defendants without showing FIAT of the Attorney General of Osun State?
33. Whereas this court is aware of the requirement of the fiat of the Attorney General for a private lawyer to prosecute a criminal case, this court is not aware of the same requirement in respect of a civil matter. There is no authority on such an issue and the learned claimants counsel did not provide any either.

Under section 301(1) of the Anambra State Administration of Criminal Justice Law 2010, a private legal practitioner or a private citizen has the indisputable right to lay a complaint and prosecute same, without the fiat of the Attorney-General of the State.

II. Whether paragraphs 5, 6, 11, 24- 27 and 30 of the counter affidavit offend section 115 of the evidence Act?

 

36.  The complaint of the claimant counsel here is that paragraphs 5,6,11,24- 27 and 30 of the counter affidavit offend section 115 of the evidence Act in that paragraphs 5, 6 and 30 are conclusions and legal arguments, Paragraphs 11, 24-27of the counter affidavit are hearsay evidence.
37. I have read the entire 31 paragraph counter affidavit of the defendants and have paid directed attention to paragraphs 5, 6,11, 24- 27 and 30 thereof.
38. Paragraph 5 denies the averment that the claimant was denied promotion based on a “recent policy’. Paragraph 6 deposes that the claimant has deliberately suppressed vital facts from the court and the deponent goes ahead to disclose such facts in paragraphs 12-24 of the counter affidavit. Paragraph 30 says that the claimant was not denied promotion based on any ‘recent policy’ but because he never satisfied the requirements contained in the Osun State Public Service Rules.
39. I find and hold, that paragraphs 5, 6 and 30 of the counter affidavit are not  conclusions or legal arguments.
40. I have also carefully read paragraphs 11 and 12 -24 of the counter affidavit with directed attention, paragraph 11 simply said the claimant was not qualified for the said promotion at the time of institution of this suit. Paragraphs 12-24 contain in details, the facts that the claimant is alleged to have failed to disclose to the court in his affidavit in support of the summons which is that the claimant had been on leave of absence without pay since 1/7/2019 to1/7/2024 and he went on another leave of absence for two years from March, 2025.
41. The facts in paragraphs 12-24 of the counter affidavit, in summary, are to the effect that the claimant had been on leave of absence since 2019 and that he filed this suit while on leave of absence .That since July 2019 up to the time of filing this suit, the claimant had been on leave of absence without pay and had worked for the defendants only for a period of 8 months and proceeded on another leave of absence.

 

I say that all my leave of absence were approved, I later resumed work briefly before applying for the last leave of absence which was also approved without any new condition.

43. How any of these paragraphs, deposed to by a Director, staff welfare department, public service office and supported by documentary evidence, exhibits B –H, and admitted by the claimant, amount to hearsay evidence has not been explained by counsel and same is not imaginable.
44. Having read the entire counter affidavit of the defendants, I see no defect in it and the only factual and legal conclusion is as correctly captured by the claimant counsel in paragraph 2.7of his unpaged reply address thus;

A cursory look at the counter affidavit of the defendants depicts that the facts are admission of the facts deposed in the affidavit in support

 

 

III.Whether the failure of the claimant to attach the Osun State Public Service Rules to his summons renders this suit incompetent and divest this court of jurisdiction?

46.  The learned Olakunle Lawal of counsel for the defendants argued that the failure of claimant to place the said Public Service Rules before the Court makes the Originating Summons fundamentally defective as this court cannot interpret what is not before it. Counsel urged the court to decline jurisdiction.
47. I must agree with the defendants’ counsel that the claimants case revolved on the interpretation of the provisions of the Osun State Public Service Rules and logic and the Rules of court demand that the court should have the document so it can interpret same.
48. The claimant did not attach the said Public Service Rules and claimant counsel justifies it on the ground that the Public Service Rules is a subsidiary legislation. Whereas in law, the Public Service Rules is indeed a subsidiary legislation and needs not be produced in evidence and the court is supposed to take judicial notice of same, counsel forgets that this is NICN Akure division and this case is coming from Osun state.
49. Diligence demands that counsel should have known that the court may not have such subsidiary legislation in its library and so make things easier for the court by providing same, even if not as an exhibit. The attitude of ‘leaving the court with the problem’ is a procedural defect on the part of counsel as a minister in the temple of justice.
50. Having so said, I must say that the failure to attach the Osun State Public Service Rules to the Originating Summons, bad as it is, unfortunately, does not render the process incompetent and divest the court of jurisdiction, because the Osun State Public Service Rule is a subsidiary legislation and the Court is under a duty to take judicial notice of same. At the most, the court reserves the right to ask counsel to provide it with the said Public Service Rules, being a subsidiary legislation.
51.  In any event, the defendants have helped the situation by attaching the said Osun State Public Service Rules to their counter affidavit as exhibit A. and the court can use same without requiring the claimant to produce same.
52. This objection also fails and is dismissed.

MERITS OF THE CASE

Whether the defendants acted lawfully and fairly in denying the claimant consideration for promotion to Grade Level 17 in the circumstances of this case.

54. Both counsel for the claimant and the defendants rightly, in my opinion, argued the three questions for determination together. 
55. The contention of the claimant, a lawyer in the Osun State Ministry of Justice, is that he was qualified for promotion and had an earned promotion to the post of Director, GL 17 along with his colleagues with whom they were employed together and have always enjoyed promotion at the same time but he was denied on the basis of an unknown new policy and he wants the court to order his promotion or compel the defendants to promote him to Director, GL 17.

 

 

 

Rule 020701(b)-All officers who fall within the field of selection for any promotion shall be considered except those who are under disciplinary action. The minimum number of years that an officer must spend in a post before being considered eligible for promotion shall be as follows;

Grade level of staff       -        Number of years in post

06 and below                 -       Minimum of two years

07-14                             -        Minimum of 3 years

15 -17                            -        Minimum of 4 years

(c )  promotion shall be made strictly on the basis of competitive merit from amongs all eligible candidates.

1. In assessing the merit of officers, a clear distinction shall be made between their records of performance or efficiency in lower grades and their potential for promotion, i.e ability and competence to perform the duties and responsibilities of the higher post efficiently and effectively.
2. Seniority and previous records of performance will be taken into account in choosing between candidates with equal potential for promotion.

Rule 050301- The object of Annual performance evaluation reports is object to provide a full record of each officer’s work, conduct and capabilities from which his suitability for promotion may be determined by the Civil Service Commission in order that the commission may be in a position to weigh, in connection with a particular vacancy, the merits of officers. It is important that it should know precisely what work the officer had been engaged upon and the judgment formed on that work. ...

Rule 050302 – Annual performance evaluation Reports should be rendered on all officers at the end of each calendar year. ...

58. In paragraphs 18 and 19, the claimant said he appeared before the committee for the promotion interview and he was told that there is a new policy that staff on leave of absence cannot be promoted, giving a picture that the panel refused to consider him. 
59. The reason for the denial as deposed in the counter affidavit appears to be purely a legal defence found by the defendants and not one flowing from the outcome of the Promotion interview committee, this is so because the report of the promotion interview committee indicating the reason for denial of promotion was not put in evidence.
60. In view of claimants exhibits D, E and F, which are letters of complaint written by the claimant to the Osun State Head of Service on the issue that he was told by the interview committee that there was a recent policy in the Osun State Civil Service that purportedly bars any staff on leave of absence from being promoted during the pendency of such leave of absence, of which there is proof of proper service of the said letters. it lays more credence to the reason averred by the claimant.
61. The defendants also argued that promotion is a privilege and not a right. I agree with the defendants that promotion is generally not an automatic right. The law is settled that promotion ordinarily remains within the discretion of the employer. See: MALLAM ABDU D. MAMMAN v. THE INDEPENDENT CORRUPT PRACTICES & OTHER RELATED OFFENCES COMMISSION (2021) LPELR 56683(CA) 75; I. A. MORAKINYO v. IBADAN CITY COUNCIL (1964) LPELR-25168(SC) ; NWOYE V. FAAN (2019) 5 NWLR (PT. 1665) 193 AT P. 218, PARAS. B-C, 
62. However, the discretion of a public authority in a statutorily regulated employment must still be exercised fairly, consistently, transparently and in accordance with the applicable Rules. Public authorities are not permitted to exercise statutory discretion arbitrarily or upon undisclosed criteria.
63. In the present case, the defendants listed the claimant as an eligible officer for the promotion interview. The claimant was accordingly invited to participate in the promotion exercise. Having adjudged the claimant eligible for consideration, the defendants came under a duty to exercise their discretion fairly and consistently.
64. The Osun State Public Service Rules sets out the criteria for qualification for promotion. That the claimant was qualified for promotion is necessarily apparent by the defendants listing him as an eligible candidate for promotion interview. The claimant, at this stage, cannot be disqualified on the basis of a non-existent new policy. The defendants cannot validly invite an officer to a promotion interview as an eligible candidate and thereafter rely on pre-existing facts already known to them to deny fair consideration, without any prior communication or disclosed policy to that effect.
65.  Rules 050301 and 050302 are at best of use for determining eligibility for promotion, the effect of which is that if an employee is found lacking in that area, he should not be listed as eligible for promotion. Listing an employee as eligible candidate for promotion implies that he met all the requirements of the Rules.
66. To turn around and deny the claimant consideration for promotion on pre-existing facts already known to the defendants to deny fair consideration, without any prior communication or disclosed policy to that effect will amount to blowing hot and cold at the same time, which the law abhors. 
67. Put differently, a party cannot be allowed to affirm at one time and deny at the other. The law frowns at a party changing like a chameleon as the defendants are trying to do in this case. See; FRIDAY V. GOV., ONDO STATE (2022)16 NWLR (PT.1857)585@666, PARAS A-B and UDE V. NWARA (1993)2 NWLR (PT. 278)638@662-663, PARAS F-C.

 

68.  The defence of the defendant for refusing the claimant promotion is that the claimant had not been under the supervision of a reporting officer for four years and that the claimant failed to meet the required criteria in the Osun State Public Service Rules that is Rules 020701 (b) (c) (i),(ii),  050301 and 050302 reproduced earlier because he had been on leave of absence and as such could not be graded. 
69. While no written policy to that effect was produced before the Court, the defendants equally failed to place before the Court the report of the promotion committee, the committee’s recommendation or any documentary explanation showing precisely why the claimant was denied consideration.
70. The absence of such material evidence weakens the defendants’ explanation and leaves the Court with an unexplained inconsistency in the administrative process.
71. This Court is unable to find any provision in the Osun State Public Service Rules expressly stating that an officer on approved leave of absence automatically forfeits promotion consideration. An approved leave of absence does not terminate the employment relationship. Neither does it extinguish accrued seniority unless expressly stated by the applicable Rules. The approvals granted to the claimant did not stipulate that acceptance of leave of absence would operate as forfeiture of future promotion consideration and the claimant was also promoted in 2021 while still on leave of absence..
72. By their previous conduct in promoting the claimant in 2021 while on leave of absence and subsequently shortlisting him again in 2025, the defendants created a legitimate expectation that leave of absence, without more, would not automatically disqualify him from consideration.
73. The doctrine of legitimate expectation is rooted in fairness and consistency in public administration. A public authority should not, without adequate notice or lawful justification, depart from an established representation or consistent course of conduct to the detriment of a person affected.
74. This is so because by Rule 020702 of the Osun State Public Service Rules, only eligible candidates are to be considered and so listing the claimant’s name for the interview means that he was found eligible for promotion, which also agrees with what was done in 2022, promoting the claimant to GL.16 even when he obviously had no performance evaluation for the past 4 years since he had been on leave of absence since July, 2019. Those provisions of the Osun State Public Service Rules are not novel and were operative as at 2019 to 2022 when the letter promoting claimant to Grade Level 16 was issued.
75. I therefore find that the defendants acted inconsistently and unfairly in refusing to consider the claimant for promotion after listing him as eligible for promotion.
76. Accordingly, the case of the claimant succeeds and the court hereby declares and orders as follows;
    1. IT IS HEREBY DECLARED that the defendants’ refusal to fairly consider the claimant for promotion to the post of Director, Grade Level 17, after adjudging him eligible and inviting him for promotion interview, without reliance on any disclosed rule or communicated policy, was unfair, inconsistent and contrary to the principles governing fair administrative discretion in public service.
    2. IT IS HEREHY DECLARED that approved leave of absence, without more, does not automatically extinguish an officer’s eligibility for promotion consideration unless expressly provided by the applicable Public Service Rules or communicated conditions of approval.
    3. IT IS HEREBY ORDERED that the decision denying the claimant consideration for promotion in the 2025 promotion exercise be and is hereby set aside.
    4.  IT IS HEREBY ORDERED that the defendants shall reconsider the claimant’s candidature for promotion to Grade Level 17 in accordance with the Osun State Public Service Rules, without reliance on any undisclosed policy relating to leave of absence, such promotion shall take effect from the date it ought properly to have taken effect..
    5. Cost of ?500,000.00 is awarded in favour of the claimant against the defendants jointly and severally.
77. This is the judgment of the court and it is hereby entered accordingly.

 

 

..........................................................................

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE