Okon Johnson Ors. V. Mobil Producing Nig. Unlimited & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The Appellants had in their Amended Originating Summons filed on 15/3/05 before the Federal High Court of Nigeria, in the Uyo Judicial Division, sitting at Uyo, and, then presided over by His Lordship, G. K. Olotu J. sought the following reliefs against the 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 Plaintiffs in the service, work or employ of the 1st Defendant and provisions of sections 18, 19, 20 and 21 of the Police Act, the Plaintiffs are employees, workers and staff of the 1st Defendant entitled to all benefits, 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 Plaintiffs 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 or 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, 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 or 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.

4. 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 Plaintiffs listed in Exhibits “N2” and “N4” including 2nd and 3rd 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 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 Akpa 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 Plaintiffs 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, 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 contract 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)

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) 158,400.00
8. H. O. S. … 2,645,000.00
9. Lunch Subsidy (1,000.00 per day) 365,000.00
10. Onshore Allowance

(9% of Annual Basic Salary) 140,400.00

11. Car Maintenance / Fuel Subsidy…. 275,000.00
12. Tea/Coffee, Snacks Allowance

(1,700.00 Per Month)… 20,000.00

Sub Total……. 6,254,700.00

ITEMS EIGHT YEARS X

8

N50,037,600.00

13. OTHER LUMP SUMSWITHIN THE PERIOD:

(a) Long service Award (5 years)……. 173,250.00

(b) Housing Equalization (4 Years before

Abolished in 2002)………………… 425,000.00

GRAND TOTAL N50,635,850.00

(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 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 Defendants 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.
9. 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 Plaintiffs 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 the 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 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 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).

(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 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.”

The appellants were wholly dissatisfied with the said decision, hence this appeal.

The respective Briefs of the parties were filed and exchanged in accordance with the Rules of this Court. However, the 2nd – 4th Respondents did not file their 2nd – 4th Respondents’ Briefs. Then on 26/2/09, and based on the application of the Appellants, this Court ordered that the appeal be heard on the Appellants’ and the 1st Respondent’s Briefs only.

The issues raised for determination of this Court in the Appellant’s Brief of Argument are thus;

“1. Whether from the available documentary evidence before the Court the Appellants are the employees of the 1st Respondent/Defendant or that of the 2nd_4th Defendants/Respondents.

2. Whether the Appellants are entitled to their claims as per paragraph 4 of their Amended Notice of Appeal”.

With regard to the first issue, learned Counsel for the Appellants, O. K. Salawu Esq, queried; ‘whether the nature of contract of service entered into by the Appellants and the 1st Respondent was that with statutory flavour or that of master and servant. He cited the cases of Daodu vs. UBA Plc (2004) 9 NWLR Part 878 p. 276 and Ibama vs. S.P.D.C. Nig. Ltd (2005) NWLR Part 954 p. 364 at 379 and submitted that the contract of service is the pivot or foundation upon which an employee must found his case. He submitted that employment into the Police Force (2nd to 4th Respondents) is regulated by the Police Act while employment into the service of the 1st Respondent is governed by the common law of master and servant.

He further cited the cases of C.A.P Plc vs. Vital Investment Ltd (2006) 6 NWLR Part 976 p. 229, B.O.N ltd vs. Babatunde (2002) 7 NWLR Part 766 p. 389 at 409 and Daodu vs. U.B.A. Plc (supra) and submitted that issue of employment of labour is basically contractual in nature with its terms and conditions already embodied in the letter(s) of employment and other documents making reference to the contract of employment.

Learned Counsel referred to Exhibit A which he said was the qualifying examination for the recruitment of the Appellants into the security unit of the 1st Respondent which commenced the recruitment exercise for the employment of the 1st Respondent, while Exhibit B is a letter of selection into the Mobil Security Unit issued by the 1st Respondent to the Appellants, Exhibits C1, C2, JR1, JR2, JR3, JR4, JRS, JR6 and JR15 are the offer of appointment letters or employment letters issued by the 1st Respondent to the Appellants offering the Appellants employment in the security unit of Mobil Nigeria Producing Unlimited (1st Respondent) and clearly stating the terms and condition of the contract of service. Exhibit JR17 are letters written by Mobil Nigeria Producing Unlimited, the 1st Respondent admitting that the Appellant had been working for them as an employee since 1988 while Exhibits Hand JR17A is a letter written by the 2nd to 4th Respondents unambiguously stating that the Appellants are the subjects and employees of the 1st Respondent.

He stressed that the Exhibits enumerated above clearly buttressed the fact that there were contracts of service between the 1st Respondent and the Appellants. He then cited the cases of Fakaude vs. O.A.U. University Teaching Hospital Complex Management Board (1993) 13 LRCN (PTA) 905 at 908, Adegbite vs. College of Medicine University of lagos (1973) 5 SC 149, Nigeria Produce Marketing Board vs. Adewunmi (1972) All NLR (Part 2) p. 433 and Daodu vs. UBA Plc (2004) 9 NWLR Part 878 p. 276 at 292- 293 and submitted that it is trite that in construing the relationship of the parties to a written contract, the Court must confine itself to the plain words or meaning which are derivable from their rights and obligations stated thereunder.

Counsel stated that the aforestated Exhibits are quite explicit on the fact that the relationship of master and servant existed between the Appellants and the 1st Respondent. He explained that the Appellants were recruited and employed by the 1st Respondent to render security services to the 1st Respondent which they had since been rendering in accordance with the terms of the agreement executed between them.

He then submitted that the parties herein are bound by the terms of their agreement. He further referred to the cases of Laramie vs. D.P.M.S. ltd (2005) 18 N.W.L.R. p.438 at 467, Ibama vs. S.D.P.C. Nig. ltd (2005) N.W.L.R. Part 954 p.364 at 379 and Afribank (Nig.) Plc vs. A. I. Investment Ltd (2002) 7 N.W.L.R. p.40 at 75 and then urged the Court to give effect to the plain and ordinary meaning of Exhibits A, B, C1, C2, JR1, JR2, JR3, JR4, JR5, JR6, JR15, JR17 and JR17A which clearly established the contract of service between the parties herein.

He stressed that any employment with the 2nd – 4th Respondent is usually governed by the provisions of section 18 of the Police Act, Laws of the Federation, 1990. Counsel pointedly argued that there is not the minutest proof before the lower Court that the Appellants were employed pursuant to section 18 of the Police Act and the same was found as fact by the learned trial Judge at p. 624 line 21 of the record of appeal, but the learned trial Judge was then misled by the purport of Exhibit F which Counsel argued was an attempt by the 1st Respondent, with the connivance of the 3rd Respondent, to illegally transfer the employment of the Appellants without their consent to the employment of the 2nd to 4th Respondents contrary to the provisions of section 18 of the Police Act. He contended that the 2nd to 4th Respondents were not privy to the contract of employment between the Appellants and the 1st Respondent. They were third parties to the said contract.

He cited the cases of J. E. Oshevire vs. Tripoli Motors (1997)5 N.W.L.R. Part 503 p. 1 at 15 and Zaki vs. Magayaki (2002) W.R.N. p. 154 at 178 and CAP Plc vs. Vital Investment Ltd (2006) 6 N.W.L.R. Part 976 p. 220 at 204 and submitted that a contract cannot confer rights or impose obligation arising under it on any person except the parties to it, and the contract between the Appellants and the 1st Respondent did not confer any rights or obligations on the 2nd – 4th Respondents. It was therefore wrongful and illegal for the 1st Respondent to attempt to transfer the employment of the Appellants to the 2nd and 4th Respondents without their consent and in total disregard to the provisions of section 18 of the Police Act. He argued that it was wrong for the learned trial Judge to have stated that Exhibit F kick-started the process of employment of the Appellants under the Act. He reproduced the provisions of section 18 of the Police Act and then submitted that employment thereunder is initiated by an application to the Inspector General of Police and not to a Commissioner of Police as evidenced by Exhibit F. He also referred to p. 268 paragraph 6 line 14. He said that the Appellants were not employed in the way and manner prescribed by sections 18 and 22 of the Police Act, and the approval of the Head of State or President via the Inspector General of Police was not sought for nor obtained by the Commissioner of Police for the 1st Respondent. He further submitted that the 1st Respondent did not make any payment to the Accountant General or into the Federal account in line with the provision of the Police Act, the Police uniforms were not given to them by the Police but the 1st Respondent, the Appellants were not interviewed, recruited or appointed by the Nigeria Police Force nor were they offered any letters of employment by the 2nd to 4th respondents, and the 2nd to 4th respondents did not keep the nominal roll of the Appellants. He stressed that the Appellants were merely offered Exhibits G1 and G2 as per p. 206-207 of the record of appeal, being the Certificates of Participation in basic Police training and guard duties.

Learned Counsel further contended that it was wrong for the learned trial Judge at p. 626 line 34 to have held that non-compliance with the provisions of the Act could be cured under the provisions of section 150 (1) and (2) of the Evidence Act. He stressed that non-compliance with the Act prevented any form of a contractual relationship between the 2nd – 4th Respondents and the Appellants. Counsel submitted that even though section 150(1) and (2) established a presumption of regularity, such presumption is rebuttable. Before such a presumption could be made under section 150(1) and (2) of the Evidence Act, there must be some facts showing that what was done was done substantially as required by law. He cited the cases of Onuzulike vs. C.S.D. Anambra State (1992) 3 N.W.L.R. Part 232 p. 791 and Ogunmade vs. Fadayiro (1971) N.L.R. p. 259 at 263 in support. Counsel further referred to J. E. Oshevire vs. Tripolis Motors (supra) and C.A.P. Plc vs. Vital Investment Ltd (supra) and submitted that it was totally strange for the 1st Respondent to abdicate its contractual obligations to the Appellants to the 2nd – 4th Respondents during the subsistence of the contract of employment it had with the Appellants. He then urged the Court to hold that the Appellants’ contract of service was not one with statutory flavor as they were not employed by the Police under the Police Act.

Counsel therefore submitted that the reference to the Appellants as Spy Police is a mere nomenclature which did not in any way confer on the Appellants the status and privileges of a Nigerian police. He referred to section 18(3) of the Police Act. He further invited this Court to hold that the Appellants in the face of Exhibits C1, C2, JR1, JR2, JR3, JR4, JR5, JR6, JR14 and JR15 and having not been employed in accordance with the provisions of section 18 of the Police Act, are bona fide employees of the 1st Respondents and are therefore entitled to all the privileges and benefits derivable from being employees of the 1st Respondent.

On the second issue, Counsel stated that the parties by their pleadings were not disputing the fact that the Appellants were entitled to their claim in the event of it being resolved that they were the employees of the 1st Respondents. He cited the case of Etim vs. Batt (1997) 11 N.W.L.R. 69 at 80 per Niki Tobi J.C.A. (as he then was) where he stated that a party can only lead evidence to prove an issue which is in dispute. Where parties have not joined issues on a matter, proof is not necessary. He also cited Dikwa vs. Modu (1993) 3 N.W.L.R. Part 280 p. 170 and Nigeria Construction Ltd vs. Okugbeni (1987) 4 N.W.L.R. part 67 p.727 in support. Counsel stressed that the Respondents did not depose to any facts in their counter-affidavit which disputes the estimated claims of the Appellants as shown in Exhibits JR7, JR8, JR9, JR10 and JR11, nor did they proffer any argument against the monetary entitlements claimed by the Appellants in the Originating Summons. He submitted that if issue No. 1 were resolved in favour of the Appellants, it follows, therefore, that they will be entitled to their claims as per paragraph 4 of their Amended Notice of Appeal.

He urged the Court to allow the appeal, and set aside the decision of the Court below delivered on 24/1/2006 and then grant the Appellants reliefs as stated at paragraph 4 of the Amended Notice of Appeal. However, the 1st Respondent, in its Brief of Argument, propositioned two issues for determination thus;

“1. Whether from the totality of the evidence led before the lower court, the Appellants being supernumerary Police Officers are the employees of the 1st Respondent or that of the 2nd – 4th Respondents.

2. Whether the Appellants are entitled to their claims as contained in paragraph 4 of their prescribed Notice of Appeal.”

Regarding issue No.1, learned Counsel for the 1st Respondent, Stephen Iruobe Oke Esq of Mike Ozekhome’s Chambers, in the 1st Respondent’s Brief adopted before this Court by Rowland Obaji Esq, submitted that no contract of employment ever existed between the Appellants and the 1st Respondent, although, the 1st Respondent was involved in the talent-spotting/ selection of the Appellants as Supernumerary Police Constables.

The contract of service was between the Appellants and the 2nd – 4th Respondents, and that the same had statutory flavour. He cited the cases of Idoniboye-Obu vs. NNPC (2003) Vol. 4 MJSC p. 131 at 164 – 165 para. G-B on an employment that has statutory flavour, Evans Bros (Nig) Pub. Ltd vs. Falaye (2003) N.W.L.R. Part 838 p.564 para. E-F and Ogieva vs. Igbinedion (2004) 1 N.W.L.R. Part 894 p. 467 at 487 para. E-F. He stated that the employments of the Appellants were regulated by the Police Act which deals with the recruitment, maintenance, discipline and dismissal of Supernumerary Police Officers, which the Appellants had identified themselves as. He referred to paragraphs 2 and 8 of the affidavit in support of the Appellants’ Originating Summons at pages 5 and 9 of the record of appeal.

Learned Counsel contended that Exhibits A, B, C1, C2, JR1, JR2, JR3, JR4, JR5, JR6, JR15, JR17, and JR17A did not establish the existence of any contract of service between the Appellants and the 1st Respondent. He stressed that the letters of appointment were mere documents intended to facilitate the enlistments of the Appellants into the Nigerian Police Force as Supernumerary Police Constables. They were inchoat, and were not self-executory. They were subject to the 2nd – 4th Respondents finding the Appellants fit and proper to be enlisted as Spy Police after the training. He argued that the only derivable inference of the role of the 1st Respondent was at best, that of an agent, and, nothing more. He then referred to the cases of FBN Plc vs. Excel Plast. Ind. Ltd (2003) 13 N.W.L.R. Part 837 p. 412, Ataguba & Co. vs. Gura (Nig.)(2005) 8 N.W.L.R. Part 927 p. 429 and Alale vs. Olu (2001) 7 N.W.L.R. Part 711 p. 119 in support.

Counsel stated that the 1st Respondent does not possess the statutory powers and (or capacity to recruit Spy Policemen, and any such contract if any existed at all, which is denied is ab initio illegal and contrary to the laws enforced in Nigeria which forbid any person, natural or artificial, from having a Police Force. He referred to section 214 of the 1999 Constitution and to the case of Onyiuke III vs. Okeke 1976 unreported Supreme Court judgment in Appeal No.SC/430/74/76 and submitted that the Courts will not enforce an illegal contract. He further stressed that an attempt to impute a contract is to engulf the entire subject into an unending mesh of confusion and nothingness and that all the cases cited on privity of contract by the Appellants’ counsel are inapplicable to the case.

Counsel further contended that the Appellants had fore-knowledge of the intention and/or the purpose of their offer of appointment as Spy Police Constables. They willfully consented to their enlistment, and went through the rigours of police training and voluntarily took an oath of allegiance to the Nigerian Police. He submitted that by Exhibits C1-C4, the 1st Respondent had auxiliary guards who were protecting its properties, but, it developed interest in making use of Spy Police Officers to protect its properties, and then requested that those auxiliary guards be enlisted into the Spy Police, who were then screened and trained by the Police before they were enlisted. He said it is strange and absurd that the Appellants are now claiming in their Amended Originating Summons, their further and better affidavit and the Amended Notice of Appeal that they are no longer Supernumerary Police Officers, a fact which they had personally admitted in the affidavit in support of their Originating Summons. They initiated the action in their capacity as Supernumerary Police Officers and on behalf of all Spy Police Officers working in the premises of the 1st Respondent. He referred to paragraphs 2, 7(a) and (b), 8(a) and 25 of the said affidavit in support of the Originating Summons. He cited the cases of Solana vs. Olusanya & ors (1997) N.S.C.C. 308 at 311 lines 39-41, Olubode vs. Oyesina & ors (1997) N.S.C.C. 286 at 290 lines 17 and 18, and Usman Dan Fodio University vs. Kraus Thompson Organisations Ltd & ors (2000) 24 W.R.N. p. 78 lines 28-34 and submitted that a fact admitted by a party in the pleadings must be taken by a Court of law as established. The fact therefore needs not to be proved any further.

Learned Counsel referred to Regulations 223, 227 and 231 of the Police Regulations of 1968, Exhibits B2 and B3, section 214 of the 1999 Constitution and the provisions of sections 18-22 of the Police Act and stated that what the Appellants seek to do in this appeal is to invite this Court to rely on technicalities of a non-existent contract. He cited the case of Akunyili vs. Ejidike (1996) 5 N.W.L.R. Part 449 p. 381 at 406 para A-B and submitted that technicalities have no place in our Justice system.

Counsel further submitted that assuming (but not conceding) that the letters issued to the Appellants by the 1st Respondent were letters of appointment as Supernumerary Police Constables, they were issued in error, as the 1st Respondent, ab initio, had no power to employ anyone as a Supernumerary Police Constable. He referred to Macfoy vs. U.A.C (1962) AC 152 at 160 where it was held that if an act is void, it is in law a nullity. It is not only bad but incurably bad. Also referred to are Akpene vs. Barclays Bank Nig. (1977) 1 S.C 47 and Shell B.P. VS. Isaiah (2001) 1 NWLR. Part 773 p.68. Counsel further referred to the case of Ibrahim VS. Barde (1996) 9 N.W.L.R. Part 474 p.513 at 577 para. B-C and submitted that by the 1st Respondent sending the application for Supernumerary Police to the Commissioner of Police and not the Inspector General of Police as envisaged by section 18(1) of the Police Act did not vitiate the application made by the 1st Respondent for Supernumerary Police. He cited the cases of A.G. Federation vs. A.G. Abia State (2001) 11 NWLR. Part 725 p. 687 ratio 20, Ohanaka vs. Acheguo (1998) 9 NWLR. Part 564 p.37 ratio 23 and P.I & P.D Co. Ltd vs. Ebhota (2001) 4 NWLR. part 704 p. 495 ratio 19 and submitted that the wordings and construction of section 18 of the Police Act, did not enjoin any mandatory obligation or strict compliance with the requirement in the procedure for appointing Supernumerary Policemen. He contended that the use of the word “may” in section 18 of the Police Act does not contemplate mandatory obligation. He then urged the Court to resolve issue No. 1 in favour of the 1st Respondent.

With respect to issue No.2, learned Counsel submitted that the claims of the Appellants were speculative and mere wishful assumptions not supported by any contract of employment, whether real or imaginary, oral or written, and that even if they had proved they were employees of the 1st Respondent (which is denied), they did not lead any evidence to prove any of the specific claims or special damages they asked for at paragraph 4 of the Amended Notice of Appeal. He contended that no evidence was adduced to prove how each of the Appellants was entitled to the sum of N50,635,850.00 including an imaginary 860 staff of the 1st Respondent. He cited the cases of Gonze Nig Ltd VS. BERDC (2005) 13 NWLR. Part 943 p. 643 at 649-650 paragraph G-A, Dumez Nig. Ltd vs. Ogboli (1972) 1 All NLR. 153 and Nwobosi vs. A.C.B. Ltd (1995) 6 NWLR. Part 404 p. 658 at 680 and submitted that special damages must be specifically averred to and proved. He urged the Court to uphold the decision of the lower Court, discountenance the arguments of the Appellants and dismiss the appeal in its entirety.

In the Appellants’ Reply Brief, this Court was referred to its decision in Mobil Producing (Nig) Unltd vs. Udo Tom Udo (2008) 36 W.R.N. 58 on a supernumerary Police Officer.

On issue No.2, he referred to Akpabuyo L.G. vs. Edim (2003) 1 NWLR. part 800 p.23, Bamaiyi vs. State (2003) 17 NWLR. Part 848 p.47 and Best Vision Ltd vs. U.A.C.N., P.D.C Plc (2003) 13 N.W.L.R. Part 838 p. 594 and submitted that since the action was commenced by Originating Summons supported by affidavit evidence, facts deposed to in the affidavit which were not specifically countered are deemed to be the truth and are sufficient proof of special damages.

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 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 way of Originating Summons and was indeed proceeded upon, with judgment thereon delivered, without either the Counsel for the Respondents raising an objection thereto or seeking the Court’s attention to the most improper method of initiating a suit of this nature. What baffled me most was the trial Court’s indifferent to the inelegant and inexpedient method adopted by the Appellants and its failure to invite the parties, respective Counsel to address it on the proper procedure by which the suit could have been commenced.

It is well established that Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings are unnecessary. It is improper to commence civil proceedings by Originating Summons where the facts are likely to be in dispute. Proceedings for which it is used usually involve questions of law rather than disputed issues of facts, meaning therefore that Originating Summons should not be adopted in proceedings which the facts are apparently disputable. It should not be resorted to in cases where there are controversies and a lot of disputed facts between the parties, the Plaintiff should approach the Court by way of filing a Writ of Summons which will allow each side to file Pleadings and sort out the issues between them.

In Pam vs. Mohammed (2008) 16 N.W.L.R. Part 1112 p.1, Tobi, J.S.C. at p.88 opined inter alia thus:

“Where the issues are in dispute or are contentious, an originating summons procedure will not lie. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or likely to be one of construction of a statute, or of any instrument made under a statute or of any deed, will, contract, or other document or some other questions of law.

It is not the law that once there is dispute of facts, the matter should be commenced by writ of summons. No. That is not the law. The law is that the dispute on facts must be substantial, material, affecting live issues in the matter.”

It is clear that the issues between the parties in this appeal at the trial Court were horridly disputed, the issue as to who actually employed the Appellants, whether they were indeed not employed as Supernumerary Police Officers, even though, they were so described, and, their claims that needed particularising in their pleadings. The issues between the parties were doggedly fought by them. They were not peripheral but substantial that would have warranted elucidation in the pleadings and the witness box. For further elucidation, it is necessary to cite the case of N.N.P.C. vs. Abdulrahman (2006) 12 N.W.L.R. Part 993 p.202 where it was held that proceedings for the challenge of termination of employment must be begun normally by the issue of a writ of summons within the period prescribed by the relevant statute. It was further held that the institution of the proceedings in the lower Court by Originating Summons instead of by writ of summons was wrong in law and it is unfortunate that neither the Appellant’s Counsel nor the trial Court in its ruling adverted its mind to it, a fact which could have compelled the Court below to strike out the action.

It is therefore clear that the procedure of commencing an action by Originating Summons is not meant to be resorted to in a hostile action between the parties and in which the parties concerned need know beforehand the issues which they are called upon to contend with from the pleadings. Further in Inakoju vs. Adeleke (2007) 4 NWLR Part 1025 p.423, Akintan J.S.C. at 684 stated that proceeding for which Originating Summons is used therefore, usually involve questions of law rather than disputed issues of facts.

As I earlier noted, an action commenced by an Originating Summons may be struck out by the trial Court. However, a trial Court has the jurisdiction if proceedings have been wrongfully commenced by Originating Summons, to permit the proceedings to carryon as if they have been commenced by Writ of Summons on the payment of the prescribed fees and filing of pleadings. It is discernible from the reliefs sought by the Appellants that the facts in issue between the parties were highly contentious and there was no better way they could have been trashed out other than by filing of pleadings and adducing viva voce evidence that is credible in nature before the trial Court. This flaw, most unfortunately, was not observed by neither of the Counsel in the case nor the trial Court itself.

I must, however, observe that since this did not form part of the grounds of appeal, nor the issues 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. Now dealing with the issues raised by the parties in their respective brief, I think it more appropriate to consider the issues as were propositioned by the Appellants in the Appellants’ Brief of Argument.

The regulating law herein can only be found within the province of section 18 sub-sections (1) and (2) of the Police Act which state thus:

“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 thereof to the Inspector-General of Police stating the nature and situation of the property in question and giving such 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 to 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.”

As could be gleaned from subsection (1) of section 18 of the Police Act, whoever feels (including corporate bodies such as the 1st Respondent in this appeal and any government department) that, he or it, needs the services of Police Officers (please, note the description, “Police Officers” given, meaning, therefore, “those already in the employ of Nigeria Police Force” as Police Officers) for the protection of his or its property or property under its control, may apply to the Inspector General of Police for such services and he has to state the type of the property and the area in which it is situated and other particulars as the Inspector General may require.

What the subsection connotes is that the services, the person or body corporate may require will be those of Police Officers and nothing more. The section did not in the least suggest or contemplate any individual or body corporate needing the services of those who had not, as at the point of their engagement by them, been employed as Police Officers. What the section envisaged is that before ever the person may be needing to protect his or its property by the persons, (later to be appointed or known as Supernumerary Police Officers) those persons to be so later designated, shall have, in the first place, been Police Officers in the Nigeria Police Force.

It is instructive to note that the word “may” which the learned Counsel for the 1st Respondent made a mountain out of, was used in the subsection (1) after the persons whose services may be needed for protection of the property were succinctly and unequivocally and adjectivally stated as “Police Officers”. The persons must be Police Officers before their services may be needed for protection of the property. It is only when their services as Police Officers are needed for protection of the property, that the person needing them, may apply to the Inspector General of Police.

Then more clearly stipulated is subsection (2) of section 18 which, in no ambiguous terms, stated by whom a Supernumerary Police Officer in the Nigeria Police Force will be appointed.

It is clear that, it is consequent upon the application made in accordance with subsection (1) of section 18 to the Inspector General of Police, that the Inspector General may, with the approval of the President, direct the authorized body to appoint as “Supernumerary Police Officers” in the Force, i.e, the Police Force, such number of persons as the Inspector General thinks are required for protection of the property. Section 18(3) deals with the appointment of the Police Officers as Supernumerary Police Officers in relation to the property and the area in which the property to be protected is situated. Then subsection 4 is specific on the involvement of the person availing himself of the services of the officer from the date of the Police Officer’s appointment as such, regarding the running costs of the Supernumerary Police Officers, billed to protect the person’s property.

With the phrase “appropriate authority” defined as the “Police Service Commission”, in the interpretation of section 22(4) of the Police Act, it follows that when such an application is made to the Inspector General for the services of Supernumerary Police Officers, the Inspector General may, with the approval of the President direct the Police Service Commission to appoint, as Supernumerary Police Officers in the Force, such number as the Inspector General thinks may be required for the protection of the property.

It is instructive to note that at no where in section 18 of the Police Act, was it stated that;

(1) any other person aside from Police Officers may be appointed as Supernumerary Police Officers;

(2) that for such a person to be appointed, he shall have been recruited or employed by the person or body corporate intending to avail himself of the services.

It was never stipulated in the provisions of section 18 of the Police Act that the person desiring to avail himself of the services of Police Officers for the protection of his property or property under his control, shall play any role in the appointment of the said Police Officers as Supernumerary – Police Officers. It is also worthy to note that the words “recruitment” and employment were never used in section 18. What was used was the word “appoint”. The word “appoint” as defined by the Oxford Advanced Learner’s Dictionary, 7th Edition at p.60 means inter-alia; “to choose somebody for a job or position of responsibility, while the word “employ” was defined to mean; “to give somebody a job to do for payment”.

The said section 18 did not say that the person may assist the Nigeria Police Force in the publication for recruitment/employment and/or interviewing of the persons whose services were needed as Supernumerary Police Officers. The Act, also, did not require the person or body corporate to employ those people and then apply to the Commissioner of Police of the State in which the person or body corporate is, to train them as Supernumerary Police Officers and enlist them as such.

All that section 18 sub-sections (1) and (2) of the Police Act required of a person or a corporation including government departments that wants to take advantage of the services of police officers for protection of his/its property or property under his/its control is to apply to the Inspector General of Police for such services stating therein the type of the property to be protected and area in which it is situated and other particulars the Inspector General may require.

It is trite law that when the words of a document, legislation or Constitution is clear, there is no need to give them any other meaning than their ordinary natural and grammatical construction would permit unless that would lead to absurdity, or some repugnancy or inconsistency with the rest of the legislation or Constitution. It has, therefore, been held that in such a situation, a court is without jurisdiction or power to import into the meaning thereof what it does not say. That nothing is to be added or taken from the statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.

Thus, a Court is not entitled to read into a statute words which are excluded expressly or impliedly from it. Where the provisions of a statute are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interpret it. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislation and give them their intended meaning and effect. See A.G. Abia State vs. A.G. Fed. (2008) 12 N.W.L.R. Part 940 p.452.

In the instant case, 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 as 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 corporations like the 1st Respondent request for Spy Police Officers to protect their properties, that, it is their own guards that will be enlisted.

The 1st Respondent, apparently wants this Court to read into section 18 sub-sections (1) and (2) of the Police Act, what the legislature never intended. Therefore, section 18 sub-sections (1) and (2) of the Police Act ought to be given their ordinary meaning. 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 secretary unit of the 1st Respondent.

The title of Exhibit A reads:

“Qualifying Examination for Recruitment of Candidates for The Spy Police Mobil Producing Nigeria, QIT.”

Exhibit A obviously did not relate the “Spy Police” stated thereon to the Nigeria Police. Rather it said, ‘The Spy Police Mobil Producing Nigeria, QIT’.

Exhibit B read thus:

8th January, 1990

AVENUE J NTIA

EKENEM. ETTE, SOLEL

BONEH (NIG) LTD OLT, IBENO

Dear Sir,

In connection with the interview you attended on 4/5th January, 1990 for selection into Mobil Security, you are advised to turn up for further screening on Thursday, 18th January, 1990 at 8:30 am at Mobil Pegasus Club, Eket.

Very truly yours,

E. E. Akpaudo

Personnel Manager”

Then, even though Exhibit C1 is entitled “Offer of Appointment As Spy Police Constable” on the letter-head of the 1st Respondent, the contents read:

“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 photographs to Mr. I. S. Akwang (ACP) on 1st Nov. 1996, at 8 am 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.

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

Security Advisor.”

Also, Exhibit C2 reads:

“MOBIL PRODUCING NIGERIA UNLIMITED

Qua Iboe Terminal

October 23, 1996

MR. Nwereuwem Akpe

Ibeno

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 photographs to Mr. I. S. Akwang (ACP) on 1st Nov. 1996, at 8 am 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.

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

B.O.B. Duke

Security Advisor.”

Exhibits D says:

“Mobil Producing Nigeria Ultd.

Qua Iboe Terminal

Uquo Ibeno LGA

P.M.B. 1001

Eket

Akwa Ibom State

May 17, 1990

The Commissioner of Police

State Police Headquarters

The Nigeria Police

Calabar

Cross River State

Dear Sir,

TRAINING OF SUPERNUMERARY POLICE RECRUITS

We recall with appreciation, your assistance in training our Supernumerary police recruits in the past.

We presently have 60 (sixty) new recruits and we require your further assistance to train them.

It will be appreciated if you can furnish us with requirements for their training, and the estimated commencement date of training.

Your cooperation and early response would be appreciated.

Very truly yours

B. O. B. Duke

Security Advisor”

bcc: The Commandant

Police Training Sch.

Calabar

Exhibit E:

“Mobil Producing Nigeria Ultd.

Qua Iboe Terminal

Uquo Ibeno LGA

P.M.B. 1001

Eket

Akwa Ibom State

June 22, 1992

The Commandant

Police Training School

The Nigeria Police

Calabar.

Dear Sir,

TRAINING OF SUPERNUMERARY POLICE

We refer to your discussion with our Security Coordinator, Mr. O. E. Nkwo on 10 June, 1992 on the above subject and hereby confirm the release of fifty-one (51) guards to commence training on 22 June, 1992.

Thank you for your usual cooperation.

Very truly yours

Tajudeen A. Saka

Manager,

Admi n./Services”

Exhibit F also states:

“Mobil Producing Nigeria Ultd.

Qua Iboe Terminal

Uquo Ibeno LGA

P.M.B. 1001

Eket

Akwa Ibom State

November 1, 1996

The Commissioner of Police

The Police Headquarter

The Nigeria Police

Uyo.

cc: o/c mss

Variation/control

Dear Sir,

RECRUITMENT OF SECURITY PERSONNEL INTO SPY POLICE

We write to confirm that the security personnel whose names appear below were trained at the Police Training School Calabar from June 10 to September 13, 1996 and were given their Force Numbers accordingly.

Subsequently, we recommend that they be recruited into the Supernumerary outfit effective June 3, 1996.

Their names are hereby attached.

Thanks for your usual cooperation.

Very truly yours

B. O. B. Duke

Security Advisor”

It is clear in Exhibits D and E that the 1st Respondent was referring to their own security men as Supernumerary Police recruit, and it wanted them to be trained by the Nigeria Police in respect of which it made application to the Commissioners of Police, in charge of Cross River State. In Exhibit F, the 1st Respondent requested the Commissioner of Police to recruit its security personnel into the Police Supernumerary outfit. It is clear therein that as at the date Exhibit F was written, the Appellants had not, according to the request of the 1st Respondent, been recruited as Supernumerary Police Officers.

It is clear as crystal in the processes filed before the lower Court and the documents exhibited that the 1st Respondent and officers of the 2nd – 4th Respondents, were oblivious of the requirement of the law or its stipulations in so far as the recruitments, employment/appointment of Supernumerary Police Officers were concerned.

It is imperative to note that the fact the 1st Respondent was ignorant of the procedure laid down for procurement of Supernumerary Police Officers for protection of its properties and that it, later, purportedly recruited or employed the Appellants and brandished them as “Spy Police Mobil Producing Nigeria, QIT” did not, and can never, convert or elevate the Appellants to the status of Police Officers recruited and employed by the Nigerian Police Council for the Nigeria Police Force and from whom the Inspector-General of the Police with the approval of the President, is to direct the Police Service Commission to appoint such number of Police Officers as Supernumerary Police Officers as required by the applying body for the protection of its properties.

It is also clear in Exhibit C2, that it was the 1st Respondent, in the figment of its own imagination, and, its hallucinating state, that offered the Appellants employment in its security unit and described them as Spy Police Constables. It is also immaterial that the Inspector-General of Police made a volte face and misled himself by writing a letter dated 21st November, 2001, stating that the transfer of Supernumerary Constables is within the prerogative of the hirers; i.e the company that employed them. See p.269 of the record.

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. As a matter of fact, the Appellants were meant to believe they were being recruited into the Security Unit of the 1st Respondent as the Spy Police of Mobil Producing Nigeria Unlimited but not as Nigeria Supernumerary Police Officers. Even, in ordinary Village meetings, some members do assume the post and name of a “Police” to maintain orderliness. Some, do even, wear some uniforms during the Village meetings portraying themselves as Policemen, while, they are not. Even if the Appellants 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 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 person’s recruitment, whether the person was employed in accordance with the law or statute establishing or creating his employment, in this case, the section 18 subsections (1) and (2) of the Police Act.

It is trite that where an Act prescribes a particular method of exercising a statutory power, any other method of exercising such power is excluded. Section 18 subsections (1) and (2) of the Police Act expressly stated the way and manner a Supernumerary Police Officer will be appointed upon the application of the person desiring to take advantage of the services of Police, for protection of his property to the Inspector-General of Police. We were never informed that the said section had been amended to include the procedure adopted by the 1st Respondent in its procurement of its Supernumerary Police Officers. It is clear that any step short of the ones prescribed by the Police Act will be null and void. The word “may’ used in section 18(1) seems mandatory in nature because there is no other way one can avail himself of such services without first applying for it. It is clear in all the Exhibits on the record of appeal before us, that it was never envisaged that the 1st Respondent was to play any role in the appointment of Supernumerary Police Officers except presenting its application, to the Inspector-General of Police for some if need be. Not a single documentary evidence was presented showing that the 1st Respondent indeed made an application for some numbers of Supernumerary Police Officers to be sent to it for protection of its property.

It is only the Supernumerary Police Officers 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 flavour and will be protected by statute.

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 intended to employ the Appellants as its security guards notwithstanding the title given to them. The Appellants were not employed by the Nigeria Police Force and then appointed as Supernumerary Police Officers by the Police Service Commission on the directives of the Inspector-General of Police for the protection of the 1st Respondent’s property as envisaged by section 18 subsections (1) and (2) of the Police Act. They were and still are the employees of the 1st Respondent since there was no affidavit evidence indicating that the Appellants employment had been determined by the 1st Respondent.

It is my view that the 2nd – 4th Respondents were unnecessarily involved in the mess created by the 1st Respondent who apparently wanted to apply for services of Police Officers to be appointed as Supernumerary Police Officers for the protection of its properties, but did not, in the least, have any faint idea on how to go about it. They offered the Appellants employment in the security unit of Mobil Producing Nigeria Unlimited described them as their “Spy Police Constable”. It was simply the figment of the 1st Respondent’s imagination that the Appellants were being appointed as Supernumerary Police Officers as dictated by the Police Act.

It was after the letters offering the Appellants employment in the security unit of the 1st Respondent, that the 1st Respondent sent them to the Police Training School. Even though Exhibits JR3, JR4, JRS, JR6, stated that the Appellants were offered appointments as Supernumerary Police Corporals, they were still being employed in the security unit of the 1st Respondent as the 1st Respondent’s security personnel. It is clear in the record before us that the learned trial Judge was wrong in holding that the Appellants were employees of the 2nd – 4th Respondents. The implication of the statement by the trial Court that;

“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”

is that the procedure laid down for appointment of Supernumerary Police Officers had not been complied with. It is also noteworthy that the capacity in which the Appellants sued was not an issue either before the lower Court or at this Appellate Court.

The word “may” used in sub-section (2) of section 18 of the Police Act clearly established that the Inspector-General of Police with the authority of the President is not under compulsion to direct the Police Service Commission to appoint Supernumerary Police Officers the moment an application is made. It is at his discretion to give such directive. He must obtain the approval of the President before directing the Police Service Commission, but he is not under any statutory obligation to obtain such approval and direct the Police Service Commission, the moment an application is made. Therefore, issue No. 1 is hereby resolved in favour of the Appellants.

The second issue distilled by the Appellant is, “whether the Appellants are entitled to their claims as per paragraph 4 of the Amended Notice of Appeal?”

With regard to the relief No. 1 sought in the Amended Originating Summons filed at the lower Court, this Court having come to the conclusion that the Appellants were recruited/employed by the 1st Respondent even though in the guise of Spy Police, Mobil Producing Nig. QIT, is of the profound view, that they are therefore entitled to their relief No. 1.

The Appellants are equally entitled to reliefs No.2 and 3.

In relation to relief NO.4, the Appellants are entitled to paragraphs (a) and (b), but not to paragraph (c).

Regarding relief No.5, it must be reiterated that issues of this nature ought not to have been commenced and presented for trial by way of Originating Summons. The issue raised, particularly, at paragraph 5 (ii) and (iii) deserve particularization in the pleadings, and, actual proof by viva voce evidence stating with specifications how each and everyone of the 27 employees mentioned therein was affected, the dates from which each was affected and his entitlements.

I am afraid to state that paragraph 12 of the Appellants’ affidavit in support of the Amended Originating Summons which was the affidavit evidence before the lower Court was very shallow and porous in this regard and worse still, none of the Exhibits attached thereto stated the salary, allowances and benefits of each of the persons listed in Exhibits “N2” and “N4” and the computation done to arrive at any figure. It has been established in a plethora of cases, the need for special damages to be strictly pleaded, particularized and established by credible evidence. The salary, allowances, entitlements and benefits of each of the Appellants or the persons listed in Exhibits “N2” and “N4” being items of special damages must be adequately particularized in the pleading and also be proved by cogent and credible evidence at the trial. Special damages must be specifically pleaded and strictly proved. The term “strict proof” consists of evidence of particular losses which are exactly known or accurately measured before the trial. Strict proof simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible.

This now leads me to the relief contained at paragraph (f), i.e, relief No.6 of the Amended Notice of Appeal. It is clear in the particularization given that the annual basic salary (Gross Pay) of N1,560,000.00 stated thereon was that of the 833 number of members of the Appellants without any breakdown of what each is entitled to, and from which date. They merely lumped together the basic salaries of the 833 members. They did not state the percentage of the salary that was being taxed and what was the Net Pay. Unfortunately, the lumped-up particulars were given in the relief sought but not in the affidavit evidence of the Appellants.

The Appellants failed in the affidavit evidence presented by them before the lower Court to state the annual basic salary, leave allowance, Year End bonus, medical allowance, security support allowance, shift allowance, HOS, lunch subsidy (N1,000.00 per day), On-shore allowance (90% of Annual Basic Salary, car maintenance/fuel subsidy, and tea/coffee, snacks allowance (N1,700.00 per month) of each of the 833 members of the Appellants and even how they came by the figure of 833 members. Accordingly, this head of claim would also fail.

Furthermore, having opined that the Appellants were never appointed as Supernumerary Police Officers as were clearly stipulated in section 18 sub-sections (1) and (2) of the Police Act, it would, therefore, be absurd and ludicrous if the 1st Respondent is allowed to continue to wallow in its brazen ignorance of the law. Accordingly, reliefs (g), (h) and (j) ought to have been granted.

In the final analysis and for all the reasons I have given above, this appeal partially succeeds. The judgment of the Federal High Court holden at Uyo delivered on 24/1/06 in Suit No. FHC/UY/CS/565/04 with respect to reliefs 1, 2, 3 (iii), 4(a), (b) and (c), 5, 7(a) and (b) and 9 are hereby set aside, and substituted with the following orders.

Accordingly, the following orders are made:

(a) It is hereby declared that having regards to and/or considering the circumstances, nature, procedure and methods of the appointment and/or employment and work of the Plaintiffs in the service, work or employ of the 1st Defendant and provisions of sections 18, 19, 20 and 21 of the Police Act, the Plaintiffs are employees, workers and staff of the 1st Defendant entitled to all benefits, rights, emoluments, privileges, immunities, conditions of service and all legitimate protections as such.

(b) It is further declared that having regards to and considering the circumstances, nature, procedure and methods of the appointment and/or employment of the services 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 Plaintiffs 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.

(C) This Court declares that:

(i) 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 or 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 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.

(ii) 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 whatever.

(iii) Any purported transfer of the Plaintiffs by any of the Defendants away from the area of the Police Province or Police District or 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 contravened section 18(1), (2) & (3)(a), (b) & (c) of the Police Act.

(d) The Defendants, particularly, the 1st Defendant, are hereby ordered to:

(i) 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 situate, back to such area of the Police Province or Police Division they were so appointed or employed to protect the 1st Defendant’s property.

(ii) Having not determined the employments of the 27 members of the Plaintiffs listed in Exhibits “N2” and “N4″, the 1st respondent is hereby ordered to reinstate with full benefits (as employees or staff of the 1st Defendant) the said 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 transfer aforesaid.

(iii) This relief is hereby refused for lack of pleadings and strict proof of special damages.

(iv) Furthermore, relief No. (e) is hereby refused for lack of pleadings and strict proof required in terms of special damages.

(e) The Defendants are hereby restrained by order of perpetual injunction 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 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.

(f) The Defendants are further restrained by an order of perpetual injunction from (i) calling, addressing and/or referring to the plaintiffs as Supernumerary Policemen or Policemen as they are not members or staff of the Nigeria Police.

(ii) compelling the Plaintiffs to wear or use Police Uniform or any Police Kit or insignia calculated to show or portray the Plaintiffs as Nigeria Policemen.

(g) Finally, the Defendants are restrained by order of perpetual injunction 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.

(i) The 1st Defendant is hereby ordered to:

(i) 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.

(ii) Give the Plaintiffs 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.”

There will be no order as to costs.

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Other Citations: (2009)LCN/3266(CA)