Hon. Justice Oyebiola Oyewumi of the Abuja Judicial Division of the National Industrial Court has dismissed the order of mandamus claim filed by Mr. Friday against the Nigerian Educational Research & Development Council (NERDC) on Salary Grade Level 14 promotion claim for lacking merit.
Justice Oyewumi held that there is nothing before the Court to show that Mr. Friday after the confirmation of his BSC degree by the Nigerian Educational Research & Development Council took further steps to apply for lateral conversion in compliance with the due process.
Justice Oyewumi expressed that compelling the Nigerian Educational Research & Development Council to comply with the resolution reached by the Attorney General of the Federation between Mr. Friday and the Council simply means asking the Court to, in a disguised way, promote Mr. Friday to Salary Grade Level 14 as Chief Executive Officer (Accounts) and neither the AGF who issued the resolution nor the Public Complaints Commission is Mr. Friday’s employer.
The Court stated that an order of mandamus would not be made where it involves doing something that is in contravention of a rule or law, and mandating the NERC to comply with the purported resolution of the AGF is against the public interest.
From facts, the claimant- Mr. Friday had averred that he was an employee of NERC and that in 2014 he was invited for a promotion exercise and consequently participated in both oral and written test and interview but he was not promoted like his contemporaries with whom he participated in the promotion exercise.
In defence, the Respondents- Nigerian Educational Research & Development Council and Its Executive Secretary posited that Mr. Friday was not recommended for promotion in the 2014 promotion exercise because he did not possess the requisite academic qualification for the subsequent post of Chief Executive Officer (Accounts).
The NERC objected to the competence of the suit, that same be struck out on the grounds that the action is statute-barred having been filed outside the three-month window period under the Public Officers Protection Act and that the NERC-Executive Secretary is the agent of a disclosed principal and therefore, not liable to be sued in his capacity for an act undertaken on behalf of his employer.
Learned Counsel to the NERC, Ikechukwu Maledo Esq with Moses Ogianyor Esq argued that the Court cannot grant an Order of mandamus for the doing of an unlawful act and posited that Mr. Friday failed to take the advice given to him as to his career progression, and urged the Court to dismiss the case in its entirety for being incompetent and unmeritorious.
In opposition, Mr. Friday posited that all the issues canvassed by the NERC and its Executive Secretary were the same issues they canvassed before the AGF, and urged the Court to discountenance their submissions in the interest of justice.
Delivering judgment after careful evaluation of the submission of both parties, the presiding Judge, Justice Oyewumi dismissed the objection for lacking in merit and struck out the name of the Executive Secretary from the suit that the Executive Secretary has not done anything to make him liable personally and its joinder to the action is a misjoinder
The Court faulted the statement credited to the Office of the Heads of Civil Service of the Federation that if Mr. Friday decides to pursue litigation, his career from the date of appointment should not only be reviewed, but he should also be placed on appropriate Grade level on merit and be subjected to the disciplinary proceedings strikes like a threat and inhibition to his right to access the Court.
Furthermore, Justice Oyewumi stated that the AGF being the Chief law officer of the Federation only vests him the responsibility under the Constitution for bringing and defending actions on behalf of the State, and does not translate to the office being a body or authority vested with powers to deal with issues arising out of the subject matter within the jurisdiction of the Court.
Justice Oyewumi reinstated that Promotion in the Public Service is not automatic or as of right, and the Court will step in when the promotion is being denied vindictively after an employee has fulfilled the conditions for such.
