Mobil Producing Nigeria Unlimited V. Okon Johnson & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal; Calabar Division delivered on the 21st day of May, 2009 wherein the Court below allowed the appeal of the 1st – 15th Respondents [who were appellants at the Court below] and set aside the judgment of the Trial Federal High Court sitting in Uyo. As can be gleaned from the record of appeal, a summary of the facts giving birth to this appeal may be stated as follows:-

The 1st – 15th Respondents are security personnel who were engaged to secure the properties of the Appellant. At various times, the 1st – 15th Respondents responded to the Appellant’s advertisement for recruitment into the security unit of the Appellant as spy Police Mobil Producing Nigeria Unlimited. They took the qualifying examination conducted by the Appellant and were selected for interview by the Appellant.

Upon their success at the interview, they were offered employment into the security unit of the Appellant via Exhibits C1, C2, JR1, JR2, JR3, JR4, JR5 and JR6, with their salaries and emolument determined by the Appellant.

1

They were sent for training to the 16th – 18th Respondents on basic guards duties. Thereafter the 1st – 15th Respondents were issued Exhibits G1 and G7 which are certificates of participation in the course and subsequently resumed duty of securing the Appellant’s properties.

To the utter surprise of the 1st – 15th Respondents, the Appellant by Exhibits F and JR17a urged the 17th Respondent to absorb the 1st – 15th Respondents into its supernumerary police outfit without the knowledge of the 1st – 15th Respondents and the 16th and 18th Respondents.

When the 17th Respondent transferred the 1st – 15th Respondents from one State to another, they protested and kicked against the said transfer on the ground that they were not the employees of the 16th – 18th Respondents but those of the Appellant and that only the Appellant could effect their transfer being their employer.

Furthermore, the 1st – 15th Respondents protested the attempt by the Appellant to transfer their services to that of the 16th – 18th Respondents whose process of employment or recruitment is expressly provided for in the Statute under Section 18 of the Police Act.

2

As a result of this protest, Exhibit JR17 at page 735 was written by the 16th Respondent stating clearly that the issue of transfer of the 1st – 15th Respondents was within the prerogative of the Appellant which is the company that employed them.

Despite this unambiguous declaration in Exhibit JR17, the Appellant still insisted that the 1st – 15th Respondents are the employees of the 16th – 18th Respondents so as to deny them their entitlement as its employees. The 1st – 15th Respondents thereafter commenced this action by way of Originating Summons.

The 1st – 15th Respondents [as plaintiffs) had in their Amended Originating Summons filed on 15th March, 2005 before the Federal High Court Uyo, sought the following reliefs against the appellant and the 16th – 18th Respondents.

1. A DECLARATION that having regards to and/or considering the circumstances, nature, procedure and methods of the appointment and/or employment and work of the plaintiff in the service, work or employ of the 1st Defendant and provisions of Section 18, 19, 20 and 21 of the Police Act, the plaintiff are employees, workers and staff of the 1st Defendant entitled to all benefits,

3

rights, emoluments, privileges, immunities, conditions of service and all legitimate protections as such.

2. A DECLARATION that having regards to and considering the circumstances, nature, procedure and methods of the appointment and/or employment of the service or work of the plaintiffs in the service and/or employ of the 1st Defendant and the provisions of Sections 18, 19, 20 and 21 of the Police Act, the plaintiffs, individually entered into and/or has contract of employment or contract of service with the 1st Defendant, and therefore, the plaintiffs are not members or staff of (the 2nd, 3rd, and 4th Defendants), Nigeria Police Force and the Plaintiff are, therefore, not entitled to be called Supernumerary Policemen nor to wear or use Police Uniform or any Police kit or insignia calculated to show or portray the plaintiffs as Policemen.
3. A DECLARATION THAT: (a) The 1st defendant and/or any of the Defendants cannot compel or force the plaintiffs or any of the plaintiffs to sign or enter into any agreement of contract to contravene or breach the provisions of Section 18(1), (2) & (3)(a), (b) & (c) of the Police Act and, in particular, the 1st Defendant,

4

and/or any of the Defendants, cannot compel or force the plaintiffs or any of the plaintiffs to sign, or enter into any agreement or contract by signing the document “Mobil Producing Nigeria Status Agreement for Supernumerary Police Service Condition Agreement” as same seeks or purports to contravene or breach the provisions of Section 18(1), (2) & (3)(a), (b) & (c) of the Police Act.

(b) Any such document or agreement as or being ‘Mobil Producing Nigeria Status agreement for Supernumerary Police Service Condition Agreement.” (Exhibit “Q”) purportedly signed by any of the members of the plaintiffs is wrong, illegal, null and void and of no effect whatsoever.

(c) Any purported transfer of the plaintiffs by any of the defendants away from the area of the police Province or police District of police Division in which the 1st Defendant’s property which each of the plaintiffs was appointed and/or employed to protect is situated is/was wrong, illegal, null and void and of no effect whatever as same contravenes Section 18(1), (2) & (3)(a), (b) & (c) of the Police Act.

5

AN ORDER mandating the Defendants particularly the 1st Defendant to forthwith:

(a) Return all the members of the plaintiffs purportedly sent on transfer away from the area of police province or police District or police Division in which the 1st Defendant’s property which each of the plaintiffs was each appointed and/or employed to protect is situated, back to such area of the Police Province or Police Division they were so appointed or employed to protect the 1st Defendant’s property.

(b) Reinstate with full benefits (as employees or staff of the 1st Defendant) all the 27 (twenty-seven) members of the plaintiff listed in Exhibits “N2” and “N4” including 2nd and 3nd plaintiffs that is to say, Okon Sunday, Ekpoumoren Anthony, Ukpong Ezekiel, Okon Dan, Akpadiaha Thompson, Naphtali Peter, Nkereuwem Akpe, Nsitighe Ikpam, Etukudo Sunday, Iko Godwin, Ebitu Udo, Edohoeket Inyang, Nsikan Henry, Anietie Ntia, Okon Nsien, Ekefre David, Akpan Harry, Edemekong Akpan, Ben Akpadiaha, Anietie Ebong, Udeme Unanaowo, David Etukudo, Bassey Uso, Essienimo Dickson, Albert Nelson, Ime Eshiet and Umoh Udongo purportedly sent away or dropped or not assigned duty post or not paid by reason of their not having gone on such purported

6

transfer aforesaid.

(c) Pay all salaries, allowances, entitlements and benefits owned or not paid to any and/or all of the aforesaid or aforementioned 27 (twenty seven) members of the plaintiffs listed in Exhibits “N2″ and N4” including the 2nd and 3rd plaintiffs who refused to go on any such transfer as aforesaid.

5. AN ORDER mandating the 1st Defendant to pay to the plaintiffs through their counsel Barrister Akpan Michael Akpan the following:

(a) Payment of the sum of N50,635,850.00 (Fifty million, six hundred and thirty five thousand, eight hundred and fifty naira) to each of the 833 (eight hundred and thirty three) number of members of the plaintiff as Mobil (1st Defendant) employees or staff as contained in the 1st Defendant’s January, 2004 Nominal Roll of (members of) the plaintiffs and the aforesaid or aforementioned 27 (twenty-seven) members of the plaintiffs listed in Relief 4(b) above and Exhibits “N2” and “N4” including 2nd and 3rd plaintiffs making an overall total of 860 (eight hundred and sixty) number of (members of the plaintiffs making a total of N43,546,831,000,00 (forty three Billion, five hundred and forty six million,

7

eight hundred and thirty one thousand naira) for all the aforesaid overall total number of (members of) the plaintiffs being their due financial entitlements or benefits or emoluments as employees or staff or workers of the 1st Defendant for eight (8) years from 1997 to 2004 inclusive having been so employed by the 1st Defendant and/or having entered into and/or having conflict of employment or contract of service with the 1st Defendant and a breakdown of their said financial entitlements or benefits or emoluments as aforesaid and as payable by the 1st Defendant per year to each of the least of its staff are as follows:-

(a) N K

1. Annual Basic Salary (gross Pay). 1,560,000.00
2. Annual Leave Allowance…… 195,000.00
3. Year End Bonus 130,000.00
4. Medical Allowance. 400,000.00
5. Security Support Allowance 115,500.00
6. Rental Allowance…. 250,000.00
7. Shift Allowance (N13,200.00 (per month) 158,40.00
8. H.O.S……… 2,645,000.00
9. Lunch Subsidy (N1,000.00 per day) 365,000.00
10. Onshore Allowance (9% of A/Basis sal)

8

140,400.00

11. Car Maintenance/fuel subsidy275,000.00
12. Tea/Coffee, snacks Allowance (1,700.00 per month) 20,000.00

Sub Total6,254,700.00

ITEMS EIGHT YEARS X

8. N50,037,600,00
9. OTHER LUMP SUMS WITHIN THE PERIOD:

(a) Long service Award (5 Years). 173,250.00

(b) Housing Equalization (4 years before Abolishing in 2002)425,000.00

Grand Total 50,635,850.00

(b) Payment of N5,000,000.00 (five million naira) general damages to each of all the aforementioned 27 (twenty-seven) members of the plaintiffs listed in Exhibits “N2” and “N4” including the 2nd and 3rd plaintiffs whom the 1st Defendant has since 2001 refused or neglect to pay their entitlements or benefits or emoluments and made to suffer seriously.

6. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from presenting to any of the Plaintiffs for signing and/or compelling or forcing any of the plaintiffs to sign any such document or agreement aforesaid purporting or tending or seeking to

9

contravene Section 18(1), (2) & (3)(a), (b) & (c) of the Police Act or any law whatsoever whether statutory’ common law or Rule of Equity.

7. AN ORDER OF PERPETUAL INJUNCTION.

(a) Restraining the Defendants from calling, addressing and/or referring to the plaintiffs as Supernumerary Policemen or Policemen as they are not members or staff of the Nigeria Police.

(b) Restraining the defendants from compelling the plaintiffs to wear or use Police Uniform or any Police Kit or insignia calculated to show or portray the plaintiffs as Policemen.

8 AN ORDER OF PERPETUAL INJUNCTION

Restraining the Defendant from dismissing or punishing the plaintiffs or any of the plaintiffs howsoever on account or by reason of their refusal or failure to sign the aforesaid Status Agreement for Supernumerary Police Service Condition Agreement and/or refusal or failure to go on such transfer tending or seeking to contravene Section 18(1), (2) & (3)(a), (b) & (c) of the Police Act or any law whatsoever whether Statutory, Common law or the Rule of Equity or by reason of seeking legal redress in this suit in Court,

10

AN ORDER mandating the 1st Defendant to forthwith:

(a) Give or provide the plaintiffs with befitting uniforms and kits (not being police uniform) suitable for the services or works with the 1st Defendant as security staff.

(b) Give the plaintiff the name “Mobil (1st Defendant’s Guards)” or any other name showing or portraying the plaintiffs as security staff of 1st Defendant provided that such name is not derogatory of the plaintiffs as members or staff of Nigeria Police.”It is interesting to note that the entire suit was fought on affidavit evidence of the parties and at the end of the proceedings, the learned trial Judge at p.671, of the record, made the following orders:-

“6 RELIEFS SOUGHT

(1) Relief 1- Refused

(2) Relief 2 – Refused

(3) Relief 3 – The 1st Defendant cannot by any means breach its own contract with the police for the employment of the Spy Police. I believe that the police has sufficiently spelt out the Rules and Procedures in the Police Act, the Force Administration Instruction and the Conditions Governing the Utilization of Services of Supernumerary Constables employed on a Reimbursement referred to in paragraph 11 of

11

the Force Administration Instruction which the Commissioner of Police should forward to the 1st Defendant in his first reaction to 1st Defendant’s application. Paragraph 12 requires the 1st Defendant to send a written notification of his acceptance of the conditions. If the procedure laid down is adhered to, all stakeholders would find that there is no need for the Mobil Status Agreement for Supernumerary Police Service. The Agreement is illegal and cannot find any basis or peace (sic) under the Act. The 1st Defendant or any of the other Defendants cannot force or compel any of the plaintiffs to enter into any such agreement. So

Relief 3 (a) Granted

(b) Granted

(c) – Conditionally granted. The Condition is that if the transfer is to any police area not adjacent to the police area in respect of which the plaintiffs were appointed, then the transfer is illegal, null and void.

(4) Relief 4(a) – Conditionally granted. Order will only apply only to plaintiffs transferred to an area not adjacent to the police area for which they were appointed as Spy Police.

(b) – Conditionally granted. The condition is the same as for Relief 4(a).

12

(c) – Conditionally granted. The condition is the same as for relief 4(a) and [b].

(5) Relief 5[a] – Refused

[b] – Refused

(6) Relief 6 – Granted

(7) Relief 7 (a) – Refused

(b) – Refused

(8) Relief 8 – Granted

(9) Relief 9 – Refused.

The Inspector General is enjoined to henceforth ensure full and strict compliance of [sic] the Police Act and the Force Administration Instruction in the appointment of Spy Police, This is to ensure administration of the process. If this had been done hitherto, the problem which led the plaintiffs to institute this action would not have arisen. The rules and guidelines contained in the Police Act and Force Administration Instruction sufficiently provide and cater for the interest of all stakeholders, that is, the Police, the hirer and the Spy Police themselves.

Each party should bear the cost of the suit.”

Dissatisfied with the judgment of the learned trial Judge, the 1st – 15th Respondents appealed to the Court below which after a careful consideration of the issues canvassed before it, reversed the judgment of the Trial Court and entered judgment for the Respondents herein in

13

part. The said judgment was delivered on 21st May, 2009.

Not being satisfied with the stance of the Court below, the Appellant has appealed to this Court. Notice of Appeal was filed on 26th May, 2009, Four grounds of appeal were made out. Thereafter, the appellant amended its Notice of Appeal and brought in additional 9 grounds of appeal making a total of 13 grounds of appeal out of which the appellant has distilled four issues for the determination of this appeal.

On 23rd January, 2018 when this appeal was argued, the learned senior counsel for the Appellant, Kayode Sofola, SAN, identified and adopted the brief of argument of the Appellant filed on 29th December, 2010 wherein the four issues for determination are identified as follows:-

1. Whether the Court should have considered the Force Administration Instruction/Force Order, which complements the Police Act with regards to the employment of Supernumerary police, before it determined who is a Supernumerary Police Officer when it held that a candidate into the Supernumerary force must have been a police officer in the Nigeria Police Force.

14

Whether the Exhibits that seek to show employment of the Respondents as Supernumerary Police Officer are contracts of service considering that they purported to fulfill an illegal objective, and are inchoate contracts which do not express the intent and understanding of the parties at the time it was entered into.

3. Whether the Lower Court could grant reliefs derived from the Police Act and also order their resistant after it had held that the plaintiff were the employees of the 1st Defendant.
4. Whether the commencement of the proceedings at the Federal High Court by means of originating summons, and conduct throughout on that basis, did not occasion such a miscarriage of justice by the denial of fair hearing as to warrant the dismissal of the action in limine by the Supreme Court.Also, the learned Senior counsel for the 1st – 15th Respondents, Femi Falana, SAN adopted their brief of argument filed on 20th June, 2012. In the said brief, four issues are formulated for determination. They are similar to the issues distilled by the appellant but are couched differently as follows:-

15

Whether with regards to the facts of this case, the non consideration of the Force Administration/Force order by the Court of Appeal with regards to the employment of Supernumerary police officers before it determined who is a Supernumerary police officer when it held that candidates into Supernumerary police force must have been police officers in the Nigeria Police Force has caused a miscarriage of justice to warrant this Court to set – aside the decision of the Court of Appeal.

2. Whether the contract of service between the appellant and the 1st – 15th Respondents as shown in Exhibits C1, C2, JR2, JR3, JR4, JR5 and JR6 is illegal and inchoate.
3. Whether having held that the 1st – 15th Respondents are employees of the Appellant, the Court of Appeal was right to have granted the relief sought by them.
4. Whether the commencement of the proceedings at the Federal High Court by means of originating summons, and the conduct throughout on that basis with the active participation of the Appellant in the said proceedings, will constitute a denial of fair hearing.Before considering the issues submitted for the determination of this appeal, let me first resolve preliminary issues submitted by the 1st 15th Respondents

16

in this appeal. At the hearing of this appeal, the learned senior counsel for the 1st – 15th Respondents drew attention to the notice of preliminary objection filed on 28th July, 2011. Arguments on the preliminary objection are contained on pages 4 – 11 of the 1st – 15th Respondent’s brief. There are three preliminary issues to be considered. These issues are:-

1. Whether in view of the provisions of Section 233(3) of the Constitution of the Federal Republic of Nigeria and the failure of the appellant to obtain leave of the Court before filing appeal on question of mixed law and facts, grounds 8, 9, 13 are competent grounds.
2. Whether ground 12 being a complaint against an obiter dictum of the Court below, is a competent ground.
3. Whether issues 2 and 4 formulated by the Appellant are not incompetent as any leave of Court was not sought and obtained.

In respect of the 1st issue or ground of objection, there seems to be no need of dwelling much on it as the learned senior counsel for the appellant has drawn attention to the fact that this Court had on 25th September, 2017, granted leave to appeal on grounds 8, 9, 12 and 13 of the Amended

17

Notice of Appeal filed on 29th December, 2010. In the Appellant’s reply brief at page 3, paragraph 1.2, the Appellant states:-

“On 25th September, 2011, this Honourable Court granted the Appellant’s Motion on Notice filed on 3rd August, 2016 seek (sic) extension of time and leave of this Honourable Court in respect of grounds 8, 9, 12 and 13 of the Amended Notice of Appeal to appeal on grounds other than grounds of law alone. By this order of Court, the Appellant has effectively regularized all the grounds contained in its Amended Notice of Appeal filed on 29th December, 2010.”

There is nothing before this Court to contradict the above submission. Thus the objection by the 1st – 15th Respondents to grounds 8, 9 and 13 of the amended Notice of Appeal and the arguments made in support are overtaken by event and are accordingly struck out.

The remaining objection is against ground 12 which is said to be a complaint against an orbiter dictum of the Court of Appeal. Learned Senior counsel for the 1st – 15th Respondents submitted that an appeal is usually against the ratio decidendi of the judgment of a Court and not in respect

18

of the obiter dictum made by the Court in the course of the said judgment, relying on Saude v Abdullahi (1989) 4 NWLR 9 (Pt.116) Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 162. He urged the Court to strike out ground 12 and issue 4 formulated therefrom.

In response, the learned Senior counsel for the appellant submitted that the import of ground 12 of the Appellant’s Notice of Appeal is to impugn the decision of the Lower Court for failure to make a logical conclusion out of its finding that the suit was improperly commenced by an originating summons in the face of contentious and hostile facts. He relied on Keyamo v House of Assembly Lagos State (2002) 18 NWLR (Pt. 799) 605, Adeyelu v. Ajagungbade (2007) 14 NWLR (Pt.1053) 1 and Olley v. Tunji (2013) 10 NWLR (Pt.1362) 275.

On page 941 of the Record of appeal, the Court below observed as follows:-

“I have given a deep consideration to the reliefs sought by the appellants and the legal arguments of the respective counsel for the parties and I think it necessary with the greatest humility to note in passing at the outset how greatly my mind was agitated by the fact that a grave matter of this nature was commenced by

19

originating summons. I must however observe that since this did not form part of the grounds of appeal, nor this issue propounded by the respective parties for determination by this Court, it will be foolhardy for this Court to make any pronouncement on it. It was merely commented upon by this Court by way of observation.

(underlining mine for emphasis)

It is not in doubt that ground 12 of the Amended Notice of Appeal is crafted from the above portion of the judgment of the Court below. In the said comment, the Court below even cautioned that it was “merely commented upon” by the Court “by way of observation. The Lower Court further stated that the issue it observed did not form part of the grounds of appeal nor the issue propounded by the respective parties for determination in the appeal. Thus, the said observation and/or comment was an obiter dictum.

An orbiter dictum is an expression of opinion made in the process of writing a judgment by a Judge which is not necessary or relevant to the decision and as such cannot form part of the ratio decidendi of the judgment. An obiter dictum does not have the status of a ratio

20

decidendi in a judgment of a Court. It does not decide the live issues in the matter. Put differently, an obiter dictum is a statement made in passing which does not reflect the ratio decidendi, that is, the reasoning or ground upon which the case is decided. See Odunukwe v Ofomata & Anor (2010) 18 NWLR [Pt.1225) 404, Ferodo Ltd & Anor v Ibeto Industries Ltd (2004) 5 NWLR (Pt.866) 317, Dr. Rasaki Oshodi & Ors v Yisa Oseni Eyifunmi & Anor (2000) LPELR – 2805 (SC), (2000) 7 SC (Pt.11) 145.

Even in the Supreme Court, an obiter dictum is clearly not binding on us or indeed on the Lower Courts, for obiter dicta, though they may have considerable weight, are not rationes decidendi and are therefore not conclusive authority and are not appealable. See American International Insurance Company v Ceekay Traders Ltd [1981] 5 SC 81 at 110, Afro – Continental Nigeria Ltd v. Joseph Ayantuyi & Ors (1995) LPELR -218 [SC] [1995] 9 NWLR (Pt.420) 411.

The conclusion of this matter is that ground 12 of the Amended Notice of Appeal which seeks to attack the aspect of the judgment of the Lower Court adjudged to be an obiter

21

dictum, is to say the least incompetent. Being an incompetent ground of appeal, it is only good enough to be struck out. Accordingly, ground 12 in the Amended Notice of Appeal is hereby struck out.

Corollary, any issue for determination which is formulated from an incompetent ground of appeal suffers the same fate with the incompetent ground of appeal. That is to say, an incompetent ground of appeal cannot give birth to a competent issue. Both the incompetent ground of appeal and the issue distilled therefrom are liable to be struck out. See Jev v Iyortyom [2014] 14 NWLR [pt 1428] 575, African International Bank Ltd v Integrated Dimensional System & Ors (2012) LPELR – 9710 (SC), (2012) 17 NWLR (Pt.1328) 1, Thor Ltd v First City Merchant Bank Ltd (2002) LPELR – 8061 [SC] Agbaka v Amadi (1998) 11 NWLR (Pt.572) 16 at 24 E F.

Issue No.4 which is distilled from ground 12 of the Amended grounds of appeal is incompetent and is accordingly struck out. Issue 2 is however saved from annihilation, having held that leave was sought and obtained in respect of grounds 8, 9 and 13 from which it was formulated.

In conclusion, the preliminary objection succeeds in part.

22

I shall now determine this appeal based on issues 1, 2 and 3 in the appellant’s brief of argument.

ISSUE ONE:-

The learned SAN for the appellant submitted that there are two instruments governing the issue of Supernumerary Police i.e. the Principal Statute – the Police Act Cap 19 LFN 2004, and the subsidiary legislation – the Force Administrative Instruction No. 26/Force Order 436. He opined that the generic law as relates to this issue is the Police Act which in Sections 18 – 22 lay down a framework for the recruitment maintenance etc of Supernumerary Police while the Force Administrative Instruction No. 26 is the specific legislation that puts flesh to the skeleton of sections 18 – 22 of the Police Act. The learned Silk faults the Court below for failure to make reference to the Force Administrative Instructions even when it was cited to the Lower Court in paragraph 6.5 of the Respondent’s brief at page 873 of the Record of Appeal before coming to the conclusion that the 1st – 15th Respondents are employees of the appellant. He also posited that, had the Lower Court considered the said subsidiary legislation, it would not have come to the decision

23

that Supernumerary police officers must have to be police officers in the police force prior to appointment as Supernumerary Police Officers.

The learned senior counsel then spelt out the differences between a substantive police officer and a supernumerary police officer and concluded that the Lower Court misdirected itself in law when it held that would be supernumerary police officers must already be police officers at the date an establishment applies for the services of Supernumerary police officers. It is his view that supernumerary police officers need not be appointed from the existing, regular police force, as the Court of Appeal erroneously held.

On the status of a subsidiary legislation, learned Silk referred to the case of Trade Bank Plc v. L.I.L.G.C. (2003) 2 NWLR (Pt.806) 11. He also submitted that it is the duty of every Court to give effect to an existing legislation whether cited by counsel or not, relying on Attorney General, Adamawa State v Ware (2006) All FWLR (Pt. 306) 871 paragraph G. He then urged the Court to resolve this issue in favour of the Appellant.

In response, the learned senior counsel for the 1st – 15th

24

respondents submitted that the issue of appointment into the Supernumerary police force is governed primarily by the provision of Sections 18 – 22 of the Police Act. It is an appointment with statutory flavor as it is regulated by statute. On what constitutes an employment with statutory flavour he referred to the case of Imoloame v. W.A.E.C. (1992) 9 NWLR (Pt.265) 303.

Learned Silk contended that in considering whether any person is appointed as a Supernumerary Police Officer, it is the primary legislation that must be considered to determine, if such appointment is in conformity with the provision of the law creating such employment. It is further contended that where a statute has provided for the doing of anything, it must be done in accordance with the express provision the statute, relying on Adeniyi v Governing Council of Yabatech (1993) 6 NWLR (Pt.426) at 461, Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599, Olufeagba v. Abdur- Raheem (2009) 18 NWLR [Pt.) 384.

Quoting extensively the provision of Section 18 of the Police Act, the learned SAN noted that from the totality of evidence before the Court, there is no indication that

25

the Appellant applied to the Inspector General of Police for the services of the Supernumerary police officers in the way and manner prescribed in Section 18(1) and (2) of the Police Act. That they were not appointed on the instruction of the Inspector General of Police. That the approval of the Head of State or President via the Inspector General of Police was never sought and obtained before they were appointed. That the appellant did not make any payment to the Accountant General or into the Federation account in line with the provision of the Police Act. Again, that police uniforms were not given to the 1st – 15th Respondents by the Nigeria Police Force but by the Appellant. Learned SAN then submitted that where an appointment is not in conformity with that provided for in a statute and is not recognized by the provisions of the statute, such an appointment cannot be said to enjoy statutory flavor. According to him, it is indeed a master and servant relationship under common law.

On the failure of the Court below to consider the Force Administrative Instruction/Force Order, learned senior counsel submitted that the Force Administrative Order is a

26

subordinate legislation and must be consistent with the substantive or main legislation from where the enabling power is conferred. That where the substantive legislation is not complied with, there is no basis to consider the subordinate legislation because any subordinate legislation which is inconsistent with the substantive legislation is a nullity to the extent of its inconsistency, relying on Oloriegbe v Omotesho (1993) 1 NWLR (Pt. 270) 386. He stated clearly that the Court below was right not to have considered the Force Administrative Instruction/Force order having made a finding that the employment of the 1st 15th Respondents was not in accordance with the provision of Section 18 – 22 of the Police Act which is the substantive law in the appointment of Supernumerary Police Officers.

Also arguing on this issue, it was contended that nowhere did the provision of the statute envisage or authorize a person, government department or institution desirous of having for his/its protection the service of police officer to get involved in the recruitment or appointment of the Supernumerary Police Officers.

He further submitted that the decision of the

27

Court below to declare the 1st – 15th Respondents employees of the Appellant and not Supernumerary police officers appointed in accordance with the provision of Sections 18 – 22 of the Police Act without considering the Police Administrative Instruction/Force Order is right decision having regard to Exhibits A, B, C, C2, JR1, JR2, JR3, JR4, JR5, JR6 and JR15 which has not occasioned any miscarriage of justice. That the appellant failed to show how the non consideration of the Force order by the Court below caused a miscarriage of justice, relying on the case of Amasike v Reg. General CAC (2010) 7 MJSC 86, M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) 608 and Fadlallah v Arewa ile Ltd (1997) 8 NWLR (pt.518) 546. Learned senior counsel then urged the Court to resolve this issue against the appellant.

The main thrust of the appellant’s argument in this issue relates to the failure of the Court below to consider the Force Administrative instruction/Force order before it determined who is a Supernumerary Police Officer. Before holding that the 1st – 15th Respondents are employees of the Appellant, the Court below stated that before a person could be

28

appointed as a Supernumerary police officer, he must have first been a police officer. As was pointed out by both parties in their respective briefs of argument, the issue of appointment into the Supernumerary police force is governed primarily by Sections 18 – 22 of the Police Act. Such appointment is regulated by statute and must be seen as such.

Section 18[1] and [2] of the Police Act provides:-

“18(1) Any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him, may make application therefore to the Inspector – General, stating the nature and situation of the property in question and giving such other particulars as the Inspector General may require.

2. On an application under the foregoing subsection, the Inspector General may with the approval of the President, direct the appropriate authority, to appoint as supernumerary Police Officers in the Force such number of persons as the Inspector General thinks requisite for the protection of the property to which the application relates’

3 …………….<br< p=””

</br<

29

Where any Supernumerary Police Officer is appointed under this section, the person availing himself of the services of that officer shall pay to the Accountant General.

(a) On the enlistment of the officer, the full cost of the officers uniform; and

(b) quarterly in advance, a sum equal to the aggregate of the amount of the officers pay for the quarter in question and such additional amount as the Inspector-General may direct to be paid in respect of the maintenance of the officer during that quarter.

From the above provision, the process of appointing a Supernumerary police officer may be summarized as follows:-

1. An application by a person who desires the services of a Supernumerary police officer to the Inspector- General of Police.
2. On receipt of the application, the Inspector General may, with the approval of the President, direct the appropriate authority to appoint such number of persons as Supernumerary Police Officers as the Inspector-General may deem fit for the protection of the applicant’s property.

30

On appointment of such Supernumerary police officer an applicant shall pay to the Accountant General the full cost of the officers uniform. He shall also pay quarterly the salaries of the officer and other costs as may be directed by the Inspector General, also to the Accountant General.

By Section 22(4) of the Act, “appropriate authority” as used in Section 18(2) (supra) is defined as follows:-

“the appropriate authority, in relation to any power to appoint or determine the appointment of Supernumerary Police Officers, means the Police Service Commission or any superior Police Officer to whom that power has been delegated in accordance with Section 194(1) of the Constitution of the Federal Republic of Nigeria.”

It follows that in considering whether the 1st – 15th respondents were appointed as Supernumerary police officers, it is the provision in Section 18 – 22 of the Police Act that must be considered to determine if such appointments were done in conformity with the provisions of the law creating such employment. As was rightly submitted by the learned counsel for the 1st – 15th Respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express

31

provision of the statute. It is trite law that when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever. See Ude v. Nwara & Anor (1993) 2 NWLR (pt 275) 638 (1993) LPELR – 3289 (SC), MPPP v INEC & Ors [2015] LPELR – 25706 (SC), Federal Republic of Nigeria v Wabara & Ors [2013] LPELR – 20083 (SC), (2013) 5 NWLR (Pt.1347) 331, Nnonye v Anyichie (2005) 2 FWLR (pt 268) 121, Ntiero v NPA [2008] 10 NWLR (Pt.1094) 129.

As rightly pointed out by the Court below, there is nothing on record to show that the appellant ever applied to the Inspector General of Police in accordance with Section 18(1) of the Police Act of its desire to have the services of Supernumerary Police Officers. Neither is there evidence of any approval by the President to that effect. There is yet no evidence of any directive by the Inspector General to “the appropriate authority” to appoint these officers. Moreso, the appellant failed to show evidence of the payment of cost of

32

uniform to the Accountant General including the quarterly payment of the salaries of the 1st – 15th Respondents.

Contrary to the provisions of the Police Act, evidence on record shows that the 1st – 15th Respondents were recruited and/or employed by the Appellant under the common law. See Exhibits A, B, C1, C2 at pages 17 – 24 of the record. Exhibits JR2, JR3, JR4, JR5, and JR6 at pages 714 – 718 of the record. See also Exhibits JR15 [a), JR15 [b] Exhibit D and E, Exhibit F, H JR 17, JR17 [a] all as appear in the record of appeal. These exhibits clearly show that the interview of the 1st – 15th Respondents and their appointment letters were issued and signed by the appellant. This was clearly in breach of Section 18(1) and (2) of the Police Act. The Appellant herein is not “the appropriate authority” empowered to appoint Supernumerary police officers. It is the Police Service Commission as defined in Section 22(4) of the Police Act. Nowhere in the Police Act is the Appellant empowered to test, interview and issue appointment letters to persons seeking to become supernumerary police officers. As was rightly held by the Court below at page 947 of the record;

33

“…the Police Act did not stipulate that at any time any person wants to make use of spy police officers to protect his property, the person, first and foremost, should be involved in the talent spotting selection of those persons or be Involved is a hirer of the Spy Police, or that the person is to request his auxiliary guards to be enlisted into the Spy Police as argued by the 1st Respondent’s counsel. The Police Act did not say that when people or multinational corporation like the 1st Respondent request for Spy Police Officers to protect their properties that, it is their own guards that will be enlisted…..

It is therefore my view that irrespective of the nomenclature given to the Appellants when they were about to be employed or recruited or even the capacity in which the Appellants sued, it definitely, did not transform them into supernumerary police officers as prescribed by the Police Act, more so, when they were offered employment into the security unit of the 1st Respondent.”

I agree entirely with the above well reasoned position taken by the Court below. The 1st – 15th Respondents were never appointed Supernumerary Police Officers

34

in accordance with the Police Act. Let me reproduce one of the numerous letters of employment made available in evidence, Exhibit C1 is entitled, “Offer of Appointment as Spy Police Constable” on the letter-head of the Appellant and the contents read as follows:-

MOBIL PRODUCING NIGERIA UNLIMITED

Qua Iboe Terminal

October 23, 1996

Mr. O. J. Johnson

c/o A. J. Johnson

Mobil House, Lagos.

Dear Sir,

OFFER OF APPOINTMENT AS SPY POLICE CONSTABLE

You are hereby offered a place in the Security Unit of Mobil Producing Nigeria Unlimited (MPNU) as a Spy Police constable. Your appointment takes effect from November,1996.

You will be required to pass a Medical Examination conducted by Mobil Doctors. You are advised to report with two passport photograph to Mr. I. S. Akwang (ACP) on 1st November, 1996 at 8am at QIT for attestation and documentation. Also provide yourself with two pairs of white shorts, two pairs of white T-shirts and a pair of white canvass.

Your training Programme is being arranged with the police training school, Calabar and may commence on 11/11/96.

35

Please sign and return the duplicate copy to this as confirmation of your acceptance of the offer.

B. O. B. Duke

Security Adviser.”

All the other appointment letters are similar to the one reproduced above. Clearly, they were not appointed by the Police Service Commission and as such, they cannot be employees of the 16th – 18th Respondents. They are employees of the appellant which employed them, notwithstanding the name given to them by the appellant. The Court below said this much on page 954 of the record as follows:-

“Even if the Appellant believed they were being employed as such, the question is, were they so appointed in accordance with the Police Act It is in this regard, I find it convenient to agree with the submission of the learned counsel for the appellants that, what conferred the status of a police on a person is not the wearing of uniform or being called a police, it is the process of the persons recruitment, whether the person was employed in accordance with the law or statute establishing or creating his employment, in this case, Section 18 Subsection (1) and (2) of the Police Act……

It is only the Supernumerary Police Officers

36

appointed by the Police Service Commission on the directives of the Inspector-General of police in accordance with the provisions of Section 18 Subsections (1) and (2) of the Police Act that has statutory flavor and will be protected by statute.”

Again, I agree without any hesitation whatsoever. The truth is that the Police Service Commission had no hand in the employment of the 1st – 15th Respondents. How can they be Supernumerary Police Officers under the Police Act I can repeat it for several times. To be properly called and recognized as Supernumerary Police Officer, a person must be appointed as provided for in Sections 18 – 22 of the Police Act. Anything done outside the Act in the process of appointing those officers is a nullity. That brings me to the issue of Force Administrative Instruction/Force Order.

Let me state clearly that the Force Administrative Instruction/Force Order is a subsidiary or subordinate legislation and its provisions must be consistent with the principal legislation from which it derives its life. Where the substantive legislation is not complied with, there is no basis to consider the subordinate legislation on the

37

issue because any subordinate legislation which is inconsistent with the principal legislation, is a nullity to the extent of its inconsistency. The Force Administrative Instruction/Force order is a subsidiary legislation which derives its validity from the Police Act, its provisions and directives therefore, must be in conformity with the terms of its enabling law in order to make it valid. Any provision or directive of the Force Order which is inconsistent with the principal Act, is to the extent of its inconsistency null and void. See Prince Ademolu Odeneye v. Prince David Olu Efunuga [1990] 11 – 22 SC 185, Din v Attorney General of Federation (1988) 4 NWLR (Pt. 87) 147 at 154, Kaycee Nig. Ltd v Prompt Shipping Corporation & Anor (1986) 1 NWLR [Pt.15] 180; Governor of Oyo State v Folayan (1995) LPELR – 3179 (SC) (1995) 8 NWLR [Pt. 413) 292. Bello Akanbi & Ors v Mamuda Alao & Anor (1989) 3 NWLR (Pt.108) 118, (1989) LPELR – 315 [SC].

May I state emphatically that the Court below was therefore right not to have considered the Force Administrative Instruction/Force Order having made a finding that the employment of the 1st – 15th Respondents

38

was not in compliance with the provision of Sections 18 22 of the Police Act which is the substantive law in the appointment of Supernumerary Police Officers.

The facts and evidence before the Court clearly shows that the 1st-15th Respondents were not recruited or given letters of appointment by the Police authority but by the Appellant. Neither was the appropriate authority i.e. the Police Service Commission instructed by the Inspector General of Police to appoint these so called Supernumerary Police Officers into Supernumerary Police Force. Thus, the issue of Force Administrative Instruction/Force order which is a subordinate legislation that stipulate the mode of appointment will only become applicable where the condition precedent to the appointment of a Supernumerary Police Officer has been fulfilled in accordance with the provision of Sections 18 – 22 of the Police Act and the Inspector General of police with the approval of the President has directed the Police Service Commission to appoint Supernumerary Police Officers. It is only then the criteria or the framework for such appointment as provided for in the Force administrative

39

Instruction/Force Order will guide the authorized body in conducting such appointment.

The decision of the Court below which declared the 1st – 15th Respondents employees of the Appellant and not Supernumerary Police officers appointed in accordance with the provisions of Sections 18 – 22 of the Police Act without considering the Police Administrative Instruction/Force order is correct and unassailable having regards to Exhibits A, B, C1, C2, JR1, JR2, JR3, JR4, JR5, JR6 and JR15. The statement by the Court below to the effect that only already employed Police officers can be eligible for appointment into the Supernumerary Police Force cannot be true having regard to the fact that there is no such provision in the Police Act. The provision in Section 18[1] of the Police Act that “any person [including any government department] who desires to avail himself of the services of one or more “Police Officers” does not mean that those to be appointed Supernumerary Police Officers must be serving police officers. That is why in Section 18(2) of the Act, it is clearly stated that on an application under Subsection [1], the Inspector General may, with the approval

40

of the President direct the appropriate authority to appoint as Supernumerary Police Officers in the Force such number of persons as the Inspector General thinks requisite for the protection of the property to which the application relates. That provision does not suggest that the appointment must be made from existing police officers. Appointment of Police Officers in the Force is permanent and pensionable whereas that of Supernumerary Police Officers is of a temporary arrangement and is not pensionable. They serve from month to month as prescribed in Section 22(1) of the Police Act, their ranks are restricted, they are disentitled from the Police Reward Fund and they are restricted to the Police area to which they are assigned. See Sections 18 – 22 of the Act. The word Supernumerary means beyond the number. Therefore, Supernumerary Police officers are police officers beyond the regular number of the Police Force. I do not think anybody would like to leave the regular, permanent and more rewarding police force to a temporary, restrictive supernumerary police arrangement. I therefore disagree with the Court below on this point although it was not the basis

41

for its decision. Supernumerary Police Officers are not to be appointed from already serving police officers.

In Amasike v Registrar General CAC (2010) 7 MJSC 86, this Court held emphatically that it is not every error or mistake that results in a reversal of a judgment and an appellate Court must be wary of this position of the law. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. It has to be noted that it is not every slip committed by a judge in his judgment that will amount to a misdirection which will result in the appeal being allowed, the misdirection to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision.

In the instant appeal, the reason for the decision of the Court below was not that the 1st – 15th Respondents were not recruited from existing police officers, but that their recruitment and/or appointments were done by the appellant which is not the appropriate authority as envisaged in

42

Section 18(2) of the Police Act. Having agreed with the Court below that the 1st – 15th respondents were not appointed in accordance with Section 18(1) and (2) of the Police Act and that they are employees of the Appellant, this issue does not avail the appellant. Issue one is accordingly resolved against the appellant.

The learned senior counsel for the appellant argued issues 2 and 3 together. I shall also determine the two issues together.

ISSUES 2 AND 3:

In his opening argument, the learned senior counsel for the appellant submitted that it was not shown that the appellant intended to employ the 1st – 15th respondents as Mobil Staff and that the decision of the Court below that Appellants intended to employ them as its staff is perverse. He opined that the only possible inference that one could draw from the conduct of the Appellant is that they intended to hire supernumerary police officers from the Nigeria Police. According to him, the failure by any of the principal actors to abide by the proper procedure can preclude the appointment prospectively, but should not be capable of vitiating it retrospectively.

43

In other words, that if complaint is duly made at the outset that the procedure is not being followed, this is capable of adversely affecting the legal effect of the appointment. But that where the appointment was been made and the individuals, as well as some of the principal actors have varied their positions accordingly, the presumption of regularity should operate in favour of the validity and efficacy of the appointments, or else the concept of frustration would apply. Learned counsel submitted further that parties must be ‘ad idem’ for a contract to be in existence. According to him, an inchoate appointment of Supernumerary Police Officer under the Police Act should enjoy the presumption of regularity especially when the restriction in Section 18(3) is applied to that appointment. That equity should also record as done what ought to be done, in the interest of justice.

Learned senior counsel argued further that the hirer’s involvement in the recruitment does not negate the status. Also, that failure, say for convenience or speed, to fulfill the administrative or logistical incidents of the appointment, as specified under Section 18[4] should not invalidate the appointment.

44

According to him, failure to make the stipulated payments in Section 18[4] as and when due or at all is remediable by Court action. Furthermore, it was contended that while statutory and regulatory formulae may exist for the manner of the recruitment and ‘lending’ of such personnel, failure to abide by those formulae does not have to be fatal as long as the intention of the hirer and the understanding of the hired are clear and ad idem.

The learned Silk opined that while ignorance of the law is no defence in criminal law, it can afford an excuse in civil law. That in engaging and relating with the 1st – 15th Respondents as supernumerary police officers, the Appellant honestly, even if erroneously believed they were following the law relating to the appointment, status and service of supernumerary police officers, especially as the Appellant placed reliance on the Force Administrative Instruction.

He went further to submit that supposing but not conceding that a contract of employment was intended, based on the appointment letters issued to the 1st – 15th Respondents, this contract was clearly a contract for Supernumerary

45

police officers, which is an illegal objective as the Appellant has neither the Constitutional or statutory power to employ Supernumerary Police Officers, referring to Section 214 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). According to him, the “supposed contracts of employment” do not qualify as valid contracts as they do not express the intention and understanding of the parties.

Referring to the various interactions of the 1st 15th respondents with the Nigeria Police after their appointment by the appellant, the learned Senior counsel submitted that they knew that they were Supernumerary police Officers and not Mobil Security Officers. He urged that this Court does not foist on the appellant a set of employment contracts it never bargained for or even contemplated. He relied on the case of Agbareh v Mimirah (2008) 2 NWLR (Pt.1071) 378 at 412 paragraph F. He also cited three other Court of Appeal cases which are not binding on this Court.

On the issue relating to the reversal of staff transfers ordered by the Court below, it was submitted that the Court of Appeal was in error and logical fallacy in holding on one hand that a

46

master-servant relationship in common law terms subsisted between the appellant and the 1st – 15th respondents and on the other hand denying the Appellant as master the right to issue and insist on obedience to lawful orders. It was submitted that the Court below was in error in ordering re-instatement after holding that the employment lacked statutory flavor, referring to the Court of Appeal decision in Evans v Falaiye (2003) 13 NWLR (Pt. 838) 564 at 589 paragraph F and Idoniboye – Obu v NNPC (2002) 2 NWLR (pt. 805) 589, 626 H – 627 A. He then urged the Court to resolve the two issues in favour of the appellant.

In response, the learned Senior counsel for the 1st – 15th Respondents submitted that a close examination of Exhibit A at page 18, Exhibit B at page 19 and Exhibits C, C2, D, E, F will reveal that the appellant’s desire was to employ Spy Police for Mobil Producing Nigeria Unlimited and not to appoint Police officers into the Nigeria Supernumerary Police Force. That nowhere in the exhibits was it stated that the 1st – 15th respondents were being offered employment as Supernumerary police officers.

47

It is his contention that where the words of a document are unambiguous, in construing the content of the document, the Court should confine itself to the plain and ordinary meaning of the documents which clearly from the exhibits does not include Supernumerary Police Officers, relying on Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 13 LRCN (pt. 4) 905 at 908, Adegbite v College of Medicine UNILAG (1973) 5 SC 149.

Learned Silk further submitted that the letters issued by the Appellant did not inform the 1st – 15th Respondents that they were being appointed into the Nigeria Police Supernumerary Police Force, rather, it was that they were being offered employment into the Security Unit of the Appellant as Spy Police constable which was the nomenclature used by the Appellant to address the 1st – 15th Respondents. He argued that although the Appellant relied on Section 150 of the Evidence Act to contend that there is substantial compliance with the provision of the Act, they failed to direct this Court to a single provision of Sections 18 – 22 of the Police Act that was complied with to enable the Court to draw an inference of substantial compliance.

48

On the reliefs granted, the 1st – 15th Respondents, learned SAN submitted that contrary to the argument of the Appellant that the Court below granted the relief under the Police Act despite holding that the 1st – 15th Respondents are not having an employment with statutory flavor, the Court of Appeal only granted the relief of the 1st – 15th Respondents based on its own findings and the justice of the case. That the Court below, having made specific findings that the 1st – 15th Respondents were and are still employees of the Appellant since there was no affidavit evidence indicating that the 1st – 15th Respondents employment had been determined by the Appellant. Rather, it was the 16th – 18th Respondents that purportedly determined the employment of the 1st-15th Respondents by the issuance of Exhibits N4 and N5, he submitted. Again, he stressed that at page 61 line 8 of Exhibit N5 of the record of appeal, the Appellant admitted the fact that the 1st – 15th Respondents were transferred by the 16th – 18th Respondents who by the finding of the Court are not the employers of the 1st – 15th Respondents.

49

In conclusion, he submitted that having held that the 1st – 15th Respondents are not the employees of the 16th – 18th Respondents, the decision of the Court to nullify the transfer of the 1st – 15th Respondents by the 16th – 18th Respondents and the order of reinstatement of the 1st – 15th Respondents is the right decision which will not be set aside by an appellate Court irrespective of the reasons for the decision, relying on I.T.P.P. v U.B.N. Plc (2006) 12 NWLR (Pt.995) 483. He urged the Court to resolve issues 2 and 3 in favour of the 1st – 15th Respondents.

I have earlier in this judgment, while resolving issue one, agreed with the Court below that the 1st – 15th respondents are employees of the appellant, having so been employed by it. I also agreed with the Court below that they were not employed as Supernumerary Police Officers under Section 18 – 22 of the Police Act. The Act does not empower the appellant to recruit Supernumerary police officers and issue them with appointment letters. All the Act requires from the appellant is an application to the Inspector General of police requesting the services of police officers to protect its properties.

50

The appointment and training of the Supernumerary police officers is the responsibility of the Police Service Commission as directed by the Inspector General. It is after their appointments by the Police Service Commission that the appellant is to pay to the Accountant General such monies as would be required for their uniform and quarterly payments also to the Accountant General for their salaries. There is no evidence that any of the 1st – 15th Respondents was employed by “the appropriate authority” in Section 18(2) of the Police Act which is interpreted to mean the Police Service Commission in Section 22 of the Act. Consequently, the 1st – 15th Respondents, even if I am to repeat myself several times, are employees of the Appellant in its Security Unit. It is as simple as that.

The opening statement in the 1st Respondents’ letter of appointment states:-

“Offer of Appointment as Spy Police Constable.

You are hereby offered a place in the Security Unit of Mobil Producing Nigeria Unlimited (MPNU) as Spy Police Constable, Your appointment takes effect from November, 1996.

Learned Senior counsel for the appellant argued that the failure of the principal actors to abide by the proper

51

procedure should not be capable of vitiating the appointment of the 1st – 15th Respondents as Supernumerary police officers. I do not agree. It is only in this country that Laws validly made by the National Assembly is breached with impunity. The appellant is a big multinational Company with one of the best legal departments available. The Nigeria Police also has a robust legal department. Why was it not necessary for the two organizations to consult their legal departments before messing up the entire process Learned Senior counsel for the appellant argued that there was substantial compliance with the Act but no reference was made to any section of the Police Act which was complied with. The appointments of the 1st – 15th respondents were made as if Sections 18 – 22 of the Police Act were not in existence. The appellant needed security officers and it appointed the 1st – 15th respondents into their Security Unit. That is all. Although learned Senior counsel for the appellant suggested that the transaction could be declared illegal, the appellants never stated in the appointment letters that the respondents were employed accordance with the Police Act.

52

The interaction with the Police after the appointments, to my mind, does not change the situation. As was observed by the Court below at page 953 of the record of appeal:

“Undoubtedly, the hood does not make a monk. The fact that the appellants were described as Spy Police Mobil Producing Nigeria and were adorned with Nigeria Police uniforms and other paraphernalia cannot make them Nigeria Policemen .. It is only the Supernumerary Police Officer appointed by the Police Service Commission on the directives of the Inspector General of police in accordance with the provision of Section 18 Subsections (1) and (2) of the Police Act that has statutory flavor and will be protected by statute.”

I need not say more on this. There is no doubt that the appellant intended to have the services of Supernumerary Police Officers but they decided to do it their own way. I am surprised that the appellant and indeed the Inspector General of police in a sister appeal, after they clearly breached Section 18(1) and [2] of the Police Act are still pursuing this appeal. In other climes, they would bury their head in shame and allow the sleeping dog to lie.

53

They ought to know that what confers the status of a Supernumerary Police officer on a person is not the wearing of uniform or being called policeman, it is in the process of his recruitment, whether same was done in line with the provisions of the statute establishing or creating the Force which is the Police Act. Nothing in the Act suggests that the appellant cannot employ an individual into its security unit and decide to call or give such officer whatever name it pleases.

I agree with the learned senior counsel for the 1st – 15th Respondents that even though Section 150[1) and [2] of the Evidence Act established a presumption of regularity, such presumption is rebuttable and before such a presumption can be appropriately and properly drawn under Section 150(1) and (2) of the Evidence Act there must be some facts brought forward to show to the Court that what was done was done substantially as required by law. In this case, there is none. See Ogunmade v Fadayiro (1971) NICR 259 at 263.

Learned counsel for the appellant had suggested that the employment of the 1st – 15th Respondents could be declared illegal. This argument is not correct.

54

There was no illegality in the appointment of the Respondents. A perusal of the appointment letters issued to the 1st – 15th respondents i.e. the exhibits already alluded to above, by the appellant did not show that they were appointed as supernumerary police officers according to the Police Act but merely as Spy Police Mobil Nigeria Unlimited. Now there are three categories of contracts of employment. They are:-

(i) Purely master and servant relationship,

(ii) Servants who hold their office at the pleasure of the employer; and

(iiii) Employments with statutory flavor.

See Longe v FBN PLC (2010) 6 NWLR (Pt.1189) 1, Comptroller General of Custom & Ors v Comptroller Abdullahi Gusau (2017) LPELR – 42081 (SC).

On the contract of employment of the 1st – 15th Respondents, the Court below has this to say in page 955 of the record:-

“It should however be noted that contract of employment may be in any form and it may be inferred from the contract of the parties. If it can be shown that such a contract was intended although not expressed. It is clear in the documentary evidence exhibited before the Lower Court that the 1st Respondent

55

intended to employ the Appellants as its Security guards notwithstanding the title given to them. They were and still are the employees of the 1st Respondent since there is no affidavit evidence indicating that the appellants’ employment had been determined by the 1st Respondent.”

The above findings cannot be faulted. There was no evidence of determination of the employment of the 1st – 15th Respondents either by the Appellant or the 1st – 15th Respondents. It was however the 16th – 18th Respondents that purportedly determined the employment of the 1st – 15th Respondents by issuance of Exhibits N4 and N5. Even the issue of transfer was done by the 16th – 18th Respondents and not by the Appellant. See Exhibit N5 on page 61 of the record of appeal. As was rightly observed by the learned counsel for the 1st – 15th respondents, the Lower Court, having held that the 1st – 15th respondents are not the employees of the 16th – 18th Respondents, the decision of the Court below to nullify the transfer of the 1st – 15th Respondents by the 16th – 18th Respondents and the order of reinstatement of the 1st – 15th Respondents is proper and unassailable.

56

The only observation I wish to make is that the Appellant has unfettered right to transfer the 1st – 15th respondents to any area of its operation because their employment is not regulated by the Police Act which forbids Supernumerary police officers from being transferred away from the area of the Police Province or Police District or Police Division in which the property of the appellant is situated and for which each security personnel was appointed to protect. One cannot eat his cake and have it. Not being Supernumerary Police officers, they cannot wish to be governed by the Police Act. Thus the order of the Lower Court on page 959 of the record of appeal [particularly order No C[iii]] only is hereby set aside. The appellant can transfer its staff as it deems necessary. Apart from this, I affirm all the orders made by the Court below in this matter. The two issues i.e. 2 and 3 are accordingly resolved against the appellant.

Having resolved the three issues against the appellant, barring the few corrections I have made in the judgment of the Lower Court, I hold that there is no merit in this appeal.

57

I affirm the judgment of the Lower Court and the orders made therein (as amended). I shall make no order as to costs.

Appeal Dismissed.

---

SC.33/2010