Shell Pet. Dev. Co. Of Nig. Plc. V. Stephen Dino & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD J.C.A.
This appeal relates to the decision of the Rivers State High Court, Coram ODILI J, (as she then was) pertaining suits No.PHC/983/94, PHC/985/94 and PHC/986/94 commenced severally by the respondents herein against the appellant. By their respective writs, the respondents being the plaintiffs claimed against the appellant, the defendant at the lower court, a cumulative sum of three million Naira each, as damages for malicious prosecution, false imprisonment and assault and battery.
From their pleadings and evidence, respondents’ case is that they are employees of Tidex Nigeria Ltd a company that carries out the business of Marine transportation of goods and equipment for the oil industry including the appellant herein. Respondents are crew of M. V. Beef Master, a tug owned by their employer. Tidex Nigeria Ltd, an independent contractor has been engaged by the appellant to transport goods and equipment to its swamp locations from its base at Kidney Island.
On 17th February 1994, the respondents set out from Kidney Island, in their employer’s tugboat, for sea Rex 12 a rig belonging to the appellant. Respondents were to deliver potable water that had been loaded on their tugboat to appellant’s rig at Sea Rex 12. On arrival at sea Rex 12, a drilling superintendent of the appellant enquired from the respondents drilling chemicals that had allegedly been loaded in the tugboat for delivery to Sea Rex 12 as well. Respondent who denied having knowledge of the drilling chemicals were subsequently handed over by the drilling superintendent to one Clement Ukenezie. The latter, a supernumerary police officer working for the appellant, effected the arrest of the respondents. Appellant facilitated the conveyance of the respondents to its premises at Rumuomasi, Port Harcourt where they were tortured, maltreated and intimidated by “appellant’s police” and other security personnel. Appellants were subsequently arraigned in charge No. PMC/163C/94 for conspiracy and stealing. Their arraignment, trial and eventual discharge, at the Magistrate Court 5 Port Harcourt form the basis of respondents claim at the lower court. Thereat, they averred that the personnel who effected their arrest, arraignment and trial were employees of the appellant. Appellant, they alleged should be held vicariously liable for the acts of the supernumerary police being appellant’s private police force.
Appellant’s case is a total denial of respondents claim: that it did not order the arrest of the respondents; that respondents arrest was effected by the supernumerary police officers attached to appellant’s company; that appellant is not liable for the acts of the police officers who being members of the Nigeria Police Force are totally independent of the appellant.
In its judgment, particularly at pages 55 of the record of appeal, the lower court decided that the supernumerary police officers that arrested and prosecuted the respondents belong to appellant’s private police force. The court also held appellant vicariously liable for the conduct of its private police force. The court’s decision reads inter alia thus: –
“The claims of each of the four plaintiffs are based on false imprisonment, assault and battery, malicious prosecution and they led evidence in that regard respectively. The defence forward a stance that the plaintiffs stole the chemicals of the defendant and they merely reported to the Nigeria Police Force who were carrying out their lawful duties in arresting, detaining, charging and prosecuting the plaintiff; before a magistrate and so the defendant cannot be liable for the claims of the plaintiffs.
The main issue upon which the whole claim rests is whether the supernumerary police are police under the management and control of the Inspector General of Police or not. The answer to the question has not been difficult for me to answer in view of my having had privilege of serving as a magistrate for about 5 years in the Elimgbu magistrate district in which jurisdiction Shell Industrial and Residential Area are and in regular course of work interacted with the Shell Police in court. This court has judicial notice of the fact that the Shell Police operates in criminal matters involving shell properly and no more… In practice they are the internal security organization of Shell PDC, only they were properly trained in the Nigeria Police College and wear police uniform. They never get transferred from shell police to any other police duty…. Since the shell police who carried out these acts were agents or servants of Shell PDC, the defendant is vicariously liable for their acts.”
(Italics supplied for emphasis)
The defendant at the lower court being dissatisfied with the above decision has appealed against it on nine grounds. Briefs of argument have been filed and exchanged by parties to the appeal. Same were adopted and relied upon at the hearing of the appeal.
The appellant distilled four issues form its nine grounds of appeal as having arisen for the determination of the appeal. The issues read:-
(1) “Whether, having regard to the relevant statutes and the evidence before the trial court, the defendant is vicariously liable for the alleged torts of the supernumerary Police (or Spy Police), committed while acting within or outside the scope of its statutory power.
(2) Whether the appellant was properly held to be vicariously liable for the alleged torts of the Supernumerary police, which was not joined as a party to the proceedings
(3) Whether the tort of the false imprisonment, assault and battery, and of malicious prosecution were proved against shell by the plaintiffs.
(4) Whether the award of damages by the learned trial court was in the circumstances of this case reasonable and in accordance with settled principles of law.”
The two issues formulated in respondents’ brief of argument are:-
- “Whether the trial court was right in holding the defendant liable for the tort of assault, battery, false imprisonment and malicious prosecution committed by the Supernumerary Police attached to it.
- Whether on the available evidence, the damages awarded by the learned trial court was reasonable and justifiable in law.”
In arguing appellant’s first issue, learned appellant counsel contended that respondents’ claims against the appellant arose directly and exclusively from the acts of the Supernumerary police. Apart from the formal complaint contained in the written statement of DW1, Edun Olusegun, on behalf of the appellant, no other employee of the appellant was alleged and shown to have committed any acts which formed the basis of the action instituted by the respondents. Learned counsel buttressed this submission by referring to page 93 lines 10-16 of the record of appeal. He further submitted that respondents’ counsel had, at the lower court, conceded this preliminary point. Learned counsel drew our attention to page 117 and page 123 of the record of appeal containing the written address of respondents’ counsel to that effect. Finally, learned appellant counsel referred to the testimony of PW3 at page 89-90 of the record clearly supporting his contention that appellant’s staff never participated in the actual arrest, incarceration and prosecution of the respondents. Yet, learned appellants counsel concluded, it remained respondents case that because the supernumerary police that arrested them were appellant’s private police and appellant it was that provided the logistics for the arrest, transportation and arraignment of the respondents, appellant stood vicariously liable. The lower court, learned appellant counsel further contended is wrong when contrary to the provisions of S. 214 (1) (2) (b) S.215, S.315 (1) (a) of the Constitution vis-a-vis S. 2. S. 6. S. 18 (1) (2) and (3) and S.44, S.22 (4), S.23, S.24; S.28, and S.29 of the Police Act took judicial notice that the supernumerary police was appellant’s private police force and for that reason vicariously liable for all its acts. The court also had clearly and not surprisingly ignored the evidence of DW1, DW2 and DW3 having made up its mind that the supernumerary police attached to the appellant was appellant’s private police. The court, the counsel finally concluded argument under this issue, does not have the power of pronouncing on the powers of a body that has been statutorily provided for outside the legislation that established it. Where a police officer is shown to be part of the Nigeria police and acted in excess of his statutory powers, he remains; personally liable. Counsel relies on Sanusi v. Ayoola (1992) 9 NWLR (Pt 265) 275; Bowaje v. Adediwura (1976) Vol NSCC, (1976) 6 SC 143; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.771) 29 and Hassan v. Atanyi ?(2002) 8 NWLR (Pt.770) 581 at 587.
Under their 2nd issue for determination, learned appellant’s counsel referred to the lower court’s finding at page 156 of the record that appellant is vicariously liable for the acts of this supernumerary police as wrong. A servant/master relationship between the appellant and the supernumerary police officer who arrested and arraigned the respondents had not been established by the respondents whose burden it was. A person sued in a vicarious capacity can only be found liable where the liability of the principal tort feasor been established. The supernumerary police’s culpability should be established to make the appellant liable. It is also argued that in where the supernumerary force had not been made a party it was not possible to establish its liability in the first place and by extension appellant’s liability. In support of this submission, counsel commended the following decisions: – Joseph Obi v. Biwater Shellabear (Nig.) Ltd. & Anor. (1997) 1 NWLR (Pt.484) 722 at 735; Ifeanyi Chukwu (Osondu) Co. Ltd v. Solel Boneh (Nig.) Ltd. (1993) 3 NWLR (Pt.280) 246 at 248; Management Enterprises Ltd. & anor v. Jonathan Otusanya (1987) 2 NWLR (Pt.55) 179 at 181 and Iyere v. Bendel Feed and Flour Mill Ltd (2001) 7 NWLR (Pt.711) 76. The supernumerary police force is a necessary party and failure to join them, learned appellant’s counsel submitted robbed the lower court of it jurisdiction to proceed and respondents case should have, on the authority of Oloriade v. Oyebi Vol. 24 NSCC 286, (1984) 1 SCNLR 390 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341; been struck out. He urges that we so do.
Under appellant’s 3rd issue, the arguments advanced in respect of appellant’s 1st and 2nd are virtually rehearsed. Learned counsel urged this court to hold that in the absence of any legal nexus between the supernumerary police force and the appellant, the latter cannot be made independent acts of the former. There was completely no evidence that any employee or staff of the appellants had participated in the alleged torts that gave rise to respondents’ claim. For the respondents to succeed in their claims for false imprisonment and malicious prosecution in particular, they must prove that appellant had lodged a report to the police knowing same to be false and thereafter aided the police to effect their arrest and detention. Beyond setting the law in motion for the prosecution of the respondents’ appellant must be established to have been actively instrumental for their arrest and eventual trial. Appellant’s liability must result from its malice against the respondents.
In the case at hand, learned appellant’s counsel contended that all the ingredients of the torts for which appellants have been found liable are lacking thereby making the lower court’s conclusion untenable. Had the court assessed the evidence of the respondent against these of DW1 at pages 912-97 of the record and DW3 at pages 99-102, its decision would have been otherwise counsel relied on Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at 26; Mandilas Karaberis Ltd v. Apena (1969) 1 NMLR 199; Martin v. Watson (1994) 2 All ER 606 and Clerk & Lindsell on Torts 17th Edition, page 741, paragraphs 15.05. He urged us to re-evaluate the evidence led at the court below and apply the correct principles of law and in so doing reach a contrary decision from the lower court’s erroneous one.
Under the 4th and last issue in the appellant’s brief, it is contented that the damages awarded by the lower court is wrong. Appellant cannot on the law and the facts available, be held vicariously liable for the acts of those it is not responsible for. Again, the evidence before the court does not prove the damages allegedly caused the respondents to entitle them to any restitution. Accordingly, the award of the damages being perverse must be set aside. Appellant’s counsel relied further on A.-G. Lagos State v. Sowande (1992) 8 NWLR (Pt.261) 589 at 600; Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79; Omoregbee v. Lawani (1980) 3-4 SC 108; Nwabuoko v. Ottih (1961) SCNLR 232; Odulaja v. Haddad (1973) 11 SC 357 and Jalingo v. Nyame & Ors (1992) 3 NWLR (Pt. 231) 538 at 545 and urged us to resolve all the four issues formulated in the appellant’s brief against the respondents. He asked us to allow the appeal.
In arguing the appeal, learned respondent’s counsel contended that the lower court is right in finding appellant liable given the pleaded facts, evidence and the state of the law. The crucial question, learned counsel submitted, is if the supernumerary police officer that had committed the tort against the respondents are appellants servants or agents. The answer to the question, it is further submitted, lies in the status of the police as provided for in the Police Act vis-Ã -vis the evidence before the court. Sections 3, 4, 18, 48 and 59 of the Police Act 359 LFN 1990, it is opined, are most relevant to the question of the moment. It is not in dispute that the supernumerary police arrested the respondents. Again the fact remains that respondent, after trial, were discharged for the offences the police arrested them. Even the testimony of DW3 at page 99 lines 10 coming after that of DW1 at page 79 line 10 – 12 had admitted these facts. The lower court is accordingly right to have found that the supernumerary police was employed to purely and exclusively protect appellant’s property. Counsel urged that since the legislation being construed is unambiguous, it should be given its grammatical and ordinary meaning. Counsel relies on Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 55.
An institution such as the supernumerary police with the type of duties outline in the various sections of the Police Act is certainly either the servant or agent of the appellant. It is the kind of relationships the existence of which, by the definition of the word “agency” in Black’s Law dictionary 6th Edition at p. 62, made the supernumerary police officers the agents of the appellant, counsel relied on the decisions in Oyelowo v. Oyelowo (1987) 2 NWLR (Pt. 56) 239; Vulcan v. Gessellschaft (2001) 26 WRN 1, (2001) 9 NWLR (Pt.710) 610. Also counsel submits, the supernumerary police found liable by the lower court had two principals: the Inspector-General of Police, the general principal and the appellant, the temporary principal. Since the conduct of the supernumerary police in the course of protecting the appellant’s property had been found wanting, it is the appellant being the temporary agent that is liable.
In further argument, learned respondents counsel submitted that appellant’s 2nd issue on respondents’ failure to join the supernumerary police, as necessary party is untenable in law. The issue being a fresh one in respect of which appellant did not obtain leave of this court before raising, is incompetent. Counsel relied on order 7 rule 2(1) of the Court of Appeal Rules, Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254; Lipede v. Shonekan (1995) 1 NWLR (Pt.374) 668 and Rockonoh Property Co. v. NITEL (2001) 89 LRCN. If however this court is inclined towards considering the issue, the appellant being a disclosed principal, argued respondents’ counsel, the supernumerary police ceases to be a necessary party. Appellant remained not only a desirable but, as rightfully found by the lower court, the necessary party for the torts of its servant. Learned counsel supported his proposition with the case of Leventis Technical Ltd. v. Petrojessica Enterprises Ltd. (1992) 2 NWLR (Pt.224) 459.
Learned respondents’ counsel elaborately referred to the pleadings and evidence the lower court had to contend with and submitted that the evidence before the court clearly sustains the liability of the appellant. The appellant it is that has the supernumerary police engaged to protect its property. The police at the instigation of the appellant arrested the respondents. Respondents were detained, arraigned, prosecuted and discharged. Appellant gave the vehicle used in conveying respondents to face trial after their arrest. For all these, the lower court is right to have found appellant liable. The court’s decision is purported by the principles stated in Edwards v. Midland Railway (1880) 6 QBD 287; Mohammed Amin v. Bannerjee (1947) AC 322 PC; Bamgbose v. Jiaca (1991) 3 NWLR (Pt.177) 64 at 67; and Clerk and Lindsel on Torts, 15th Edition p. 868 paragraphs 18-24.
Finally under this issue, learned respondents’ counsel submitted that the arrest, arraignment and prosecution of the respondents were actuated by malice on appellant’s part. The appellant, it is argued, never had the necessary honest belief that respondents had committed the acts it had them prosecuted for. This made the appellant liable for malicious prosecution and the other torts which hinged on false imprisonment. Counsel urged that appellant’s 2nd issue be resolved against the appellant as well.
As to respondents’ 2nd issue for determination, learned respondents’ counsel argued that the evidence before the lower court did also justify the award of damages made against the appellant. The evidence in support of the claims made by the respondents are at pages 79, 80, 84, 88 and 92 of the record of proceedings and same has remained uncontroverted. It is further argued by counsel that the lower court’s finding at page 154 lines 29-34 cannot be set aside. Persisting evidence in terms of a plaintiff’s writ and statement of claim entitles the plaintiff to the relief he prays the court as held in Nwosu v. Njoku (1990) 3 NWLR (Pt 140) 570 at 572. The Court of Appeal, it is further contended, cannot substitute its view of the evidence led for those of the trial court except if that of the trial court is found to be perverse. The trial court having acted on a correct principles as to the quantum of damages it awarded in respect of all the three heads of torts, this court, learned respondents’ counsel submitted, cannot interfere with such awards. Counsel supported this argument with the following: Ogbero Egri v. Edidho Uperi (1974) 1 NMLR 22; Ajumobi Ogundulu & Ors v. Philips (1973) 1 NMLR 267; Nlewedim v. Uduma (1995) 6 NWLR (Pt.402) 383 at 389 and Ediagbonya v. Dumez (Nig.) Ltd (1986) NWLR (Pt.31) 753.
On the whole, learned respondents’ counsel urged this court to dismiss the appeal.
It is my understanding that the appellant’s sole contention in the instant appeal is that the decision it appeals against is not sustainable. Because the necessary relationship between appellant and the supernumerary police that effected the arrest and prosecution of the respondents does not exists, appellant’s primary argument is that it cannot be found liable for the tortuous conduct of the supernumerary police officers. The police officers are neither its employees nor agents. The lower court, appellant insists, is wrong in holding that because the supernumerary police officers are appellant is vicariously liable for their conduct. Respondents had also sought to establish from their oral pleadings the evidence led, that their arrest, arraignment and prosecution by the supernumerary police officers, all employees of the appellant, was actuated by malice. The lower court in its conclusion also wrongly found for the respondent to this end.
The question here in whether the respondents had indeed made out their case to justify the conclusion the lower court arrived at.
At this point, it is instructive to reproduce the provisions of Section 134, 72, 73 and 74 of the Evidence Act for reasons which would subsequently manifest in this judgment. The sections provide:-
“134 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
“S.72 – No fact of which the court must take judicial notice need be proved.”
“S.73(1) – The court shall take judicial notice of the following facts. –
(a) All laws of enactment and subsidiary legislation made thereunder having the force of law now or heretofore in fierce or hereafter to be in force in any part of Nigeria.
(2) In all cases in the preceding subsection and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books of documents of reference.
(3) If the court is called upon by any person to take judicial notice of any fact; it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”
“S.74 – No fact need be proved in any civil proceedings; which the parties thereto or their agents agree to admit at the hearing or which; before hearing; they agree to admit by any writing under their hands; or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; provided that the court may in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
In the instant case, the respondents herein as plaintiffs desired the lower court’s judgment as to the appellant’s liability for the torts of the supernumerary police officers. They asserted in their pleadings that the officers had committed the tortuous acts at the instance of the appellant and being the latter’s servants, and or agents. The cumulative effect of Sections 134, 72, 73 and 74 of the Evidence Act to the facts of the case at hand is that the respondents, having asserted the facts relevant to their claim against the appellant, have the burden of proving the existence of those facts. Proof of these facts are however obviated if they come under the provisions of either Sections 72 and 73 or Section 74 of the Evidence Act.
It is glaring that the lower court’s finding that appellant is liable for the tort of the police officers was arrived at squarely because the learned judge had
“the privilege of serving as a Magistrate for about 5 years in Elimgbu Magistrate District in which jurisdiction Shell Industrial and Residential Area (sic) are and in regular course of work interacted with the Shell Police in Court. This court has judicial notice of the fact that shell Police are the internal security of Shell PDC,…. Since the shell Police who carried out these acts were agents or servants of Shell PDC, the defendant is vicariously liable for their acts.”
The foregoing decision, most certainly, did not evolve from the court’s application of Section 74 of the Evidence Act to the facts before it. Appellant had not admitted the facts asserted by the respondents. The court had arrived at the decision after it had taken “judicial notice” pursuant to S.73(1) of the Evidence Act of the facts respondents asserted.
In Commonwealth Shipping Representative v. P. O. Branch services (1923) AC 191 at 212, ‘judicial notice” had been defined to refer to facts which a judge is called upon to receive and to act upon either from his general knowledge of them or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer. It also refer, as it has manifested in our circumstances to such facts which a court mandatorily takes as proved by the operation of law. Notwithstanding by which vehicle, once judicial notice of a fact has been taken by the court that fact is taken as proved thereby dispensing with further proof of the very fact.
The fundamental question this appeal raises is whether the lower court in taking judicial notice of the fact that the supernumerary police officers who committed the tort in respect of which appellant was found liable were servants and/or agents of the appellant had acted correctly. Appellant’s contention is that the court did not and had resultantly arrived at a perverse decision. Respondents contend the contrary of this position.
By section 74(1)(a) of the Evidence Act, it is mandatory for a court to take judicial notice of not only the “laws, or enactments and any subsidiary legislation having the force of law” but all those facts which had been provided for by “the law, enactment or subsidiary legislations”. Thus where the fact to be taken judicial notice of is as has been given by a particular legislation, it becomes imperative for the court to take judicial notice of that fact in the manner and to the extent the law has provided the fact should be “noticed”… Notice is not taken of the fact because it is so notorious and within the court’s personal knowledge rather, notice is taken and proof of the existence of the fact dispensed with simply because the particular statute has so imposed. In the case at hand, the lower court could only take judicial notice of the relationship between the appellant and the supernumerary police officers in the manner and extent the relationship has been provided for by the Police Act Cap 359 Laws of the Federation 1990.
The judicial notice the lower court took could not have been by virtue of S. 74 (3) of the Evidence Act. Firstly, neither of the parties; herein had requested that the notice be taken. Secondly and most importantly facts as to a master/servant relationship are matters in the realm of contract between the parties which except provided by statute cannot be said to be of such notoriety to justify being judiciously noticed. The burden of proof of such facts must be bone by the party, here the respondents who asserted them.
Both the lower court and the parties before it are, and rightly so, agreed that for vicarious liability to arise an alleged tort-feasor must have been employed to work for the person that is being held liable. It is not enough for the former to be asked or even ordered to perform in a con other than employment. See Heasmans v. Clarity Cleaning Co. (1987) 1 CR 948, Mcdermid v. Nash Dredging Ltd. (1987) AC 906 and “The Ocean Frost” (1986) 1 AC 717, Joseph Obi v. Biwater Shellabear (Nig.) Ltd & Anor (1997) 1 NWLR (Pt.484) 722 at 735 and Ifeanyi Chukwu Co. Ltd v. Solel Boneh (Nig.) Ltd (1993) 3 NWLR (Pt.280) 247 at 248. But are the supernumerary police officers for whose torts the appellant herein was found vicariously liable by the lower court given the numerous sections of the Police Act CAP 359, appellant’s servants or agents?
Decidedly relevant in answering the Sections 2, 18, 19, 20 and 21 of the Police Act herein supplied for ease of reference:-
“Section 2 – In this Act, unless the con otherwise requires: –
“The Force” means the Nigeria police Force established under this Act; “Police Officer” means any member of the forces;
“supernumerary police officer’, means a police officer appointed under Ss.18, 19 or 21 of this Act or under an authorization given under S.20 of this Act.”
The above clear and unambiguous provisions of section 2 of the Police Act shows that a supernumerary police officer is a member of the Nigeria Police Force. Sections 18(1), (2), 3(b), (4) and 5 provide for the appointment, remuneration, assignment and withdrawal of the services of the supernumerary police officer 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 therefore to the Inspector-General, stating the nature and situation of the property in question and given such other particulars as the Inspector-General may require.
(2) On 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) Every supernumerary police officer appointed under this section –
(b) Shall be employed exclusively on duties connected with the protection of that property.
(c) Shall- in the police area in respect of which he sis appointed and in any police adjacent thereto, but not elsewhere; have the powers, privileges and immunities of a police officer and
(d) subject in the instruction imposed by paragraphs (b) and (c) of this subsection and to the provisions of section 22 of this Act, shall be a member of the force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.
(4) Where any supernumerary police officer is appointed under this section, the person availing himself of the services of that office shall pay to the Accountant-General.
(a) On the enlistment of the officer, the full cost of the officer’s uniform; and
(b) Quarterly in advance; a sum equal to the aggregate of the amount of the officers pay for that quarter in question and such additional amounts as the Inspector-General may direct to be paid in respect of the maintenance of the officer during that quarter.
(5) Where the person availing himself of the services of any supernumerary police officer appointed under this section desires that the services of that officer to be discontinued; he must give not less than two months notice in writing to that effect… and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.
22(1) Every supernumerary police officer shall, on appointment, be enlisted to serve in the police force from month to month, and accordingly a supernumerary police officer may at any time resign his appointment by given one month’s notice in that behalf to the superior police officer in charge of the police area in respect of which he is appointed and his appointment may be determined by the appropriate authority on one month’s notice in that behalf to the superior officer in charge of the police area in respect of which he is appointed; and his appointment may be determined by the appropriate authority on one months’ notice in that behalf or on payment of one month’s pay instead of such notice.
(4) In sections 18-21 of this Act and this section –
“The appropriate authority” in relation to any power to appoint or determine the appointment of supernumerary police officers, means the Nigeria Police Council or any superior police officer to whom that power has been delegated in accordance with section 194(1) of the Constitution of Nigeria.”
(Italics supplied for emphasis)
The words which make up the foregoing provisions are clear and unambiguous. In construing the provisions the words must be assigned their ordinary grammatical meaning See: O.A.U. Ile-Ife v. Oliyide & Sons Ltd (2001) 7 NWLR (Pt.712) 456; A.-G., Bendel State v. A.-G. Federation (1981) 10 SC 11, (1982) 3 NCLR 1; Adewumi v. A.-G. Ondo State (1996) 8 NWLR (Pt.464) 73 and Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506.
In applying the stated principle of interpretation to our circumstance, the combined effect of the various sections (supra) is that although by S.18 (1) (2) (3)(b), the supernumerary police officers who arrested, detained and prosecuted the respondents had been so appointed following an application for that purpose by the appellant, and the appellant pays for the officers uniform and salaries by virtue of S.22(1), the appointment of the supernumerary police officers is determinable only by “the appropriate authority”: the Nigeria Police Council. And the import of S.18 (5) needs to be elaborated upon here too. Pursuant to the subsection, where the appellant desires discontinuance of the services of the supernumerary police officers, it gives the required notice in writing only to have the services “withdrawn”. The appellant is not involved in the determination of the appointment of the officers. The supernumerary police officers whose services are withdrawn following appellant’s written notice under S.18(5), continue to be officers of the Nigeria Police Force until their appointments are eventually determined by virtue of S.22(1) of the Police Act.
Under the foregoing sections of the Police Act, which provisions the lower court is duty bound to observe and enforce, it is glaring that the supernumerary police officers are never servant of the appellant.
An appellate court is under duty to interfere with and reverse the decision of a trial court arrived upon a wrong premise or otherwise perverse. See Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 and Mba v. Agu (1999) 12 NWLR (Pt.629). In the instant case, the decision appealed against is neither founded on sound legal principle nor supported by facts on record. Expunge the “judicial notice”, the court wrongly took of the fact of a master/servant relationship betweent he appellant and the supernumerary police officers for whose tortuous actions the appellant had been found liable and nothing remains to ground appellant’s vicarious liability. Thus nothing besides the lower court’s misconceived application of principle founded the court’s conclusion of the master/servant relationship between the appellant and the supernumerary police it predicated appellant’s liability. Such a decision being perverse cannot persist. The submission of learned appellant’s counsel in that regard is accordingly unassailable same is upheld.
Appellant counsel’s further submission that this court is entitled to look at the evidence on record and interfere with the trial court’s decision where such evidence does not justify the trial court’s conclusion must equally be conceded to him. An added vital issue in controversy between the parties herein is proof of the various torts allegedly committed by the supernumerary police officers for which appellant is held vicariously liable. We have seen from the operation of law that the supernumerary police officers are not, and the trial court had held to the contrary, appellant’s servants. Again, the supernumerary police officers are, by virtue of S.23, S.24 and S.28 of the Police Act, empowered not only to effect arrest and conduct search of the premises occupied by respondents for appellant’s stolen property, but also empowered to prosecute the respondents who had been arrested following a report on appellant’s behalf. Nothing in the record shows that the report lodged on behalf of the appellant regarding its property that had disappeared in transit was actuated by malice. The trial court’s findings of fact on these critical points and the conclusion from the findings are far from being correct, lawful and just. It is therefore right for this court to tamper with the court’s wrong findings of fact and conclusions therefrom. See Balogun v. Akanji (1998) 1 NWLR (Pt.70) 301; Kodilinye v. Odu (1935) 2 WACA 336 and Anyabine v. Okolo (1998) 13 NWLR (Pt.582) 444 at 461 – 462.
In sum, having regard to the relevant statutes and the evidence before the trial court, the lower court had wrongly found the appellant vicariously liable for the alleged torts of the supernumerary police officers committed within the scope of the officers’ statutory powers. Where the evidence before the court shows that officers of the supernumerary police had acted pursuant to and within their statutory powers, respondents’ action for the tort of false imprisonment assault and battery as well as malicious prosecution must fail. Until respondents had made out their claim, and they did not, the question of damages talk less of its quantum does not arise. Had the respondents even made out their case the officers of the force would remain liable for their own wrongful conduct rather than the appellant. The officers were not appellant’s servants.
In the circumstance, therefore, all the four issues formulated by the appellant are hereby resolved against the respondents. The appeal having succeeded is allowed. The decision of the trial court is hereby set aside.
Cost of the appeal is put at N10,000.00 against the respondents.
Other Citations: (2006)LCN/1973(CA)
