Nwoye v. FAAN [2019] 5 NWLR (Pt. 1665) 193 at 218, paras. B-C, per Kekere-Ekun, JSC:

“Promotion from one level or position in an organization to another is not a right but a privilege, which is earned. An employer cannot be compelled to promote its employee no matter the good opinion the employee might have of himself.”


In the instant case, the Appellant was a staff of the Federal Airports Authority of Nigeria (FAAN), the Respondent who was employed as an Assistant Technical officer on Grade Level 06. He later rose through the ranks up to Grade Level 13 and to the position of Assistant Chief Electrical Superintendent in the cadre of senior staff. He was allocated official accommodation in the Respondent’s staff quarters. Trouble began when his salaries and emoluments were withheld and also prevented from carrying out his official assignments. He filed an action against the Respondent claiming what the Supreme Court called a “catalogue of reliefs”, i.e., many reliefs which include an order compelling the Respondent to promote him. The trial Court granted some of the reliefs but refused the relief on promotion. The Respondent appealed against the Judgment to the Court of Appeal. The Appellant also cross-appealed, challenging the refusal of the relief on promotion. The Court of Appeal struck out the Respondent’s appeal based on a preliminary objection raised. On the cross-appeal, it held that the Appellant was not entitled to the order on promotion sought. The Appellant appealed to the Supreme Court which dismissed the appeal.

The said relief (i.e., Relief 2) on promotion reads:

“An order of Court compelling the defendant to accord the plaintiff his rightful position in service by promoting him to a higher position from Assistant Chief Electrical Superintendent commensurate with his contemporaries in the service of the Defendant and also to pay the plaintiff the accrued arrears of salary and benefits on the said promotion.”

In delivering the Leading Judgment, Sanusi, JSC said:

“To my understanding, in this relief, the plaintiff was simply asking the trial Court to, in a disguised way, promote him to a position contemporaries are holding and/or make him to benefit from the salaries and other entitlements of his supposed contemporaries then holding the rank of Assistant Electrical Superintendents. It is elementary to say that the trial Court is not the plaintiff’s employer. Since his employers i.e. the defendant/respondent, had never so promoted him or grant him that relief more especially because no evidence was led before it to show that he really deserved or is entitled to that anticipated promotion or rank. Perhaps it is sequel to that, that the trial Court in refusing to grant that relief held as below: – “This relief is like making a “tall order” promotion is a privilege granted an employee at the discretion of the employer thus the Court cannot compel an employer to promote his employee…” It is my candid view therefore, that the trial Court was right in refusing to grant Relief No. 2 and by extension the Court below is also correct in upholding the trial Court’s refusal to grant the said Relief No. 2.”

Talking about the idea of employee promotion, Anastasia beautifully explained:

“Promotion or career advancement is a process through which an employee of a company is given a higher share of duties, a higher pay-scale or both. A promotion is not just beneficial for employees but is also highly crucial for the employer or business owners. It boosts the morale of promoted employees, increases their productivity and hence improves upon the overall profits earned by the organization.”

The Supreme Court in the case of Nwoye has made it clear that, generally, promotion is a privilege and not a right. The implication is that when something is a privilege, you cannot complain when it is not given to you. However, if it was a right, you stand in a position to complain and to approach the court to assist you in enforcing that right. The operating principle at the heart of the justice system is that where there is a right, there is a remedy. (ubi jus ibi remedium).

In law, the doors are hardly ever closed. General rules always have some exceptions or qualifications. For instance, as explained by Kayode Omosehin, Esq.:

“Where promotion is based on agreed conditions which the employee has fulfilled, it would be a breach of agreement if the employer fails to approve his promotion… Where a decision on promotion has been wrongfully exercised, the court has power to entertain the complaints of an aggrieved employee who has been affected by such decision.”


Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.
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