IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 24 NOVEMBER 2022                                                       SUIT NO. NICN/ABJ/114/2022 BETWEEN

1.      SP Samuel Eromosele

2.      SP Michael Ijakpa

(For themselves and as representing all members of

Course 22 (Force Entrants) of the Police Academy)           -                                       Claimants

 

AND

1.  Police Service Commission

2.  Inspector-General of Police

3.  Force Secretary, Nigeria Police                                         -                                     Defendants

 

REPRESENTATION

Edwin Okoro, for the claimants.

Joseph Offor, for the 2nd and 3rd defendants. No legal representation for the 1st defendant.

 

JUDGMENT

INTRODUCTION

1.         The claimants filed this suit against the defendants on 1 April 2022 vide an originating summons supported by an affidavit and accompanying written address. The claimants are seeking the determination of the following question:

Whether taking into consideration the combined effects of section 6(1) and (2) of the Police Service Commission (Establishment) Act No. 1 2001 and Rule 020801 of the Public Service Rules 2008 of the Federal Republic of Nigeria, the decision of the Police Service Commission at the 24th Plenary Meeting on the 27th and 28th September, 2017 in relation to maintaining the date of appointment as Cadet Officers as the date of their first appointment, is valid in law.

 

2.        Upon the determination of the above question, the claimants are praying the Court for the following reliefs:

(a)   A DECLARATION, that the decision of the 1st defendant in her 24th Plenary meeting in relation to the regularization of date of first appointment of Cadet Officers is valid and subsisting.

(b)  A DECLARATION, that the claimants, being members of Force Entrants into the Cadet program are beneficiaries of the decision of the 1st defendant in her 24th Plenary meeting.

(c)   AN ORDER nullifying the unlawful purported retirement from service of some of the claimants of Course 22 (Force Entrants) by the 2nd and 3rd defendants.

(d)   AN OPDER directing the defendants to reinstate forthwith the claimants unlawfully retired.

(e)     AN ORDER directing the defendants to pay all salaries, allowances and other entitlements to the claimants affected by the unlawful retirement, upon their re-instatement.

(f)   AN ORDER mandating the defendants to update forthwith the service records of the claimants to reflect the 1st February 2005 as the date of their First Appointments, in line with the decision of the 1st defendant in her 24th Plenary meeting in relation to the regularization of date of first appointment.

(g)    AN ORDER of perpetual injunction, restraining the defendants jointly and severally from unlawfully and prematurely retiring the claimants of Course 22 (Force Entrants), of the Police Academy, affected by the decision of the 1st defendant in her 24th Plenary meeting in relation to the regularization of date of first appointment.

 

3.      The 2nd and 3rd defendants reacted by filing their counter-affidavit and accompanying written address, to which the claimant filed a reply on points of law.

 

4.     The 1st defendant did not enter appearance, nor did it file any reaction to the suit.

 

THE CASE OF THE CLAIMANTS

5.       The claimants are Police Officers and members of Course 22 (Force Entrants) of the Police Academy. The defendants sometime in 1989 began advertising for vacancies in the Establishment of Assistant Superintendent of Police and Inspector cadres pursuant to section 39 of the Nigerian Police Regulations. By the said advertisement, some qualified serving members of the rank and file with University degrees who were interested in the program were directed to resign their appointments and apply for the program afresh like their civilian counterparts. Pursuant to the said program, and the defendants’ publications, the claimants complied with the directive and re-applied for the program afresh like their civilian counterparts, went through screening and interview, passed and were appointed into the Cadet program with effect from 1 February 2005.

 

6.      By the said appointments, the claimants’ dates of retirement are to be calculated from the date of first appointment as Cadet Officers, but contrary to signal CE: 2710/SKS/VOL.V/136 - DTO:261340/06/89 some Officers received directives from the Police authorities to come to Force Headquarters to revert to the earlier appointments that they were made to resign and abandon. The said aggrieved Police Officers of (Force Entrants) of the Police Academy inundated the 1st defendant with several complaints and petitions and the 1st defendant in her 24th Plenary meeting on 27 and 28 September 2017 considered the several complaints and petitions and arrived at a decision that all officers covered by signal CE: 2710/SKS/VOL.V/l36, who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointment as Cadet Officers, are to maintain the date of their appointments as Cadet Officers as the date of their first appointment.

 

7.      By a letter dated 25 October 2017, the 1st defendant wrote to the 2nd defendant directing him to implement the decision, convey to the Officers and inform the Commission accordingly, but instead of complying with the said decision across board, the 2nd and 3rd defendants reinstated some and directed some of the claimants to proceed on retirement.

 

8.     That members of Courses 18, 19 and 20 filed separate suits at Abuja Division of this Court and obtained judgments in their favour. The Police authorities obeyed the said Judgments, but insisted that since the claimants did not go to court, like their counterparts of Courses 18, 19 and 20, they will not benefit from the decision of the 1st defendant in her 24th Plenary meeting on 27 and 28 September 2017. That the Police Service Commission never made going to court a condition precedent for any Officer to benefit from their said decision. The claimants are accordingly in court seeking that justice be dispensed to them judicially and judiciously.

 

THE SUBMISSIONS OF THE CLAIMANTS

9.     The grounds upon which the originating summons is brought are as follows:

(l) 1st defendant in her 24th Plenary meeting on 27 and 28 September 2017 considered several complaints and petitions and arrived at a decision that all officers covered by signal CE: 2710/SKS/VOL.V/136, who were directed to resign their appointments as Non- Commissioned Officers before taking up fresh appointment as Cadet Officers are to maintain the date of their appointments as Cadet ASPs as the date of their first appointment.

(2)           The said decision is in line with the statutory responsibilities and duties of the 1st defendant.

(3)           There is no appeal against the said decision of 27 and 28 September 2017 by any person, body or organ (including the 2nd and 3rd defendants).

(4)        The 2nd and 3rd defendants have no statutory power to overrule the decision of the 1st defendant validly arrived at Plenary meeting.

(5)        The said decision of the 27 and 28 September 2017 is valid and subsisting.

 

10.        The question posed in the originating summons for determination is the issue the claimant submitted for determination. To the claimants, this suit complies with Order 3 Rule 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2014 (sic), as it qualifies as proceedings which may be begun by originating summons as it relates to the determination of question of construction arising under the instrument and for a declaration of the rights of the claimant that is interested, citing Barr. (Mrs) Amanda Peters Pam & anor v. Nasiru Mohammed & anor [2008] Legalpedia (SC) 81116.

 

11.      The claimants dovetailed into the essence of section 6 of the 1999 Constitution, a number of case law authorities on the need not to give statutes their ordinary construction and not to introduce extraneous into them, locus standi, and the Constitution being the supreme law of the land, to show that they have the right to come to this Court even when the defendants did not contest that fact.

 

12.       Referring to section 42 of the 1999 Constitution, which deals with the right to freedom from discrimination, the claimants submitted that the Constitution gives them this right. That the 1st defendant is the body statutorily empowered to take decisions and formulate policies affecting the claimants. In her 24th Plenary meeting on the 27 and 28 September 2017, 1st defendant considered several complaints and petitions and arrived at a decision that all officers who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointment as Cadet Officers are to maintain the date of their appointments as Cadet Officers as the date of their first appointment. That in the letter dated 25 October 2017 (Exhibit G) addressed to the 2nd defendant, the 1st defendant made it clear that their decision affects all officers with similar situation. That the claimants are included in the phrase, “all officers with similar situation who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointment as Cadet Officers”, citing Solicitor-General Western Nigeria v. Dr Festus O. Adebonojo & ors [1971] Legalpedia (SC) 10911.

 

13.       The claimants went on that the said decision of the 1st defendant at her plenary meeting is in line with the statutory responsibilities and duties of the 1st defendant, and that there is no legal challenge against the said decision of the 27 and 28 September 20l7 by any person, body or organ (including the 2nd and 3rd defendants). That the claimants are among those who took up fresh appointments and issued appointment letters, and that the said decision of the 27 and 28 September 2017 is valid and subsisting, having been made pursuant to her powers conferred by section 6(l) of the Police Service Commission (Establishment) Act 2001.

 

14.          The claimants referred to Rule 020810 of the Public Service Rules (PSR) 2008, which provides that:

(i)   The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.

(ii)    No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.

 

15.        To the claimants, the words of Rule 020810 of the PSR 2008 are “5 years of pensionable service” and not “35 years in active service”.

 

16.      The claimants then reproduced Rule 020801(b) of the PSR 2008 thus:

020801(b) By virtue of the provisions of Regulation 15 of the Pension Reform Act 2004, all previous pensionable service is forfeited on resignation and cannot be taken into account for pension purposes if the officer is subsequently re-employed except where, under certain circumstances, such a break in service has been condoned by the Office of Establishments and Pension.

 

17.       To the claimants, the decision of the 1st defendant in her 24th Plenary meeting on 27 and 28 September 2017 after considering the several complaints and petitions and arrived at a decision that all officers covered by signal CE: 2710/SKS/VOL.V/136, who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointment into the Cadet program are to maintain the date of their appointments as Cadet Officers as the date of their first appointment, is consistent with the forfeiture by resignation of previous service which is also recognised by Rule 020801(b) of the Public Service Rules 2008. That the contention of the claimants is that they were made to resign their former appointments and given fresh appointment as Cadet officers.

 

18.         The claimants continued that by Regulation 12(l) of the Pension Reform Act 2004, only continuous and unbroken service shall be taken into account as qualifying service. That Regulation 15(2) of the Pension Reform Act 2004 recognises any declaration made under any other enactment service for the purpose of calculating qualifying service. That the PSR 2008 has adopted and ratified Regulation 15(2) of the Pension Reform Act 2004, which deals with calculating qualifying service. That the Pension Reform Act 2004 has been repealed by section 117(1) of the Pension Reform Act 2014, but by section 117(4) every regulation, order, requirement, certificate, notice, direction, decision, authorization, consent, application, request or thing made, issued, given or done under the repealed Act shall if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.

 

19.        That the National Industrial Court created by the Constitution with jurisdiction over labour and industrial matters has given a judicial nod of approval to the decision of the Police Service Commission by the judgment of Hon. Justice O. O. Oyewumi on 13 January 2021 in Suit No. NICN/ABJ/353/2019 - CSP Sunday Okuguni & 3 ors v. Police Service Commission & 2 ors attached as Exhibit K.

 

20.          Furthermore, that by section 6(2) of the Police Service Commission (Establishment) Act 2001, the 2nd and 3rd defendants have no power to review such decision.

 

21.       The claimants then asked whether the decision of the Police Service Commission at the 24th Plenary meeting on 27 and 28 September 2017 in relation to maintaining the date of appointment as Cadet Officers as the date of their first appointment, is valid in law; and answered in the affirmative, urging the Court to so hold.

 

22.        The claimants also submitted that there are no valid grounds preventing the decision of the Police Service commission at her plenary meeting of 27 and 28 September 2017 in respect of maintaining the date of appointment as Cadet Officers as the date of first appointment from inuring in favour of the claimants. That they are also entitled to enjoy the said decision and maintain their dates of appointment as Cadet Officers as the date of first appointment.

 

23.       The claimants urged the Court to note the positive averment of the claimants in paragraph 8 of the affidavit in support of this application that again in the year 2005, the defendants also published that qualified serving personnel who are interested in appointment as Cadet ASPs were to apply and the claimants complied with the directive, resigned their appointments and re-applied for the program afresh like their civilian counterparts, went through screening and interview, passed and were given fresh appointment letters respectively. That to properly resolve the issue under consideration, a pertinent question is: did the claimants comply with the directive, resign their appointments and re-applied for the program afresh like their civilian counterparts, go through screening and interview, pass and were given fresh appointment letter respectively? They answered in the affirmative.

 

24.       That the implication of the resignation and fresh appointment is that the former appointment is no longer within contemplation in the calculation of date of enlistment, which ultimately determines the date of exit or retirement from service.

 

25.       To the claimants, wherever there is a wrong there ought to be a remedy to redress the wrong, generally expressed in the Latin phrase Ubi Jus ibi remedium, citing Jide Arulogun v. COP, Lagos State & ors [2016] “LSELR-66490(CA)” and Michael Ogbolosingha & anor v. Bayelsa State Independent Electoral Commission [2015] Legalpedia (SC) 10111. That by this suit, the claimants request the intervention of the Court in this matter, urging the Court to so do, and resolve this issue in their favour.

 

26.      The claimants concluded by calling on the Court to grant all the reliefs they seek.

 

THE SUBMISSIONS OF THE 2ND AND 3RD DEFENDANTS

27.       To the 2nd and 3rd defendants, the claimants in this suit who addressed themselves as Course 22 (Force Entrants) were before 1 February 2005, Police Officers of the rank and file cadre. While serving, as non-commissioned officers, they obtained higher educational qualification entitling them to participate in the interview exercise that led to their elevation as Cadet Assistant Superintendent of Police on the date above stated. That before this appointment to the rank of ASP, many of the claimants had served several years in the Force e.g. the 1st claimant had served for 22 years before 1 February 2005.

 

28.       That it is the case of the claimants that before they were appointed Cadet ASP in 2005, they were advised to resign in order to take up the new appointment. It is their case that while their direct entrant counterparts were given the date stated on their appointment letters, they were forced to revert to their respective enlistment dates of their rank and file period in their record of service in the Force. That after several complaints to the authorities to be allowed to take the date on their new appointment letters as their authentic date of appointment, the Police authority refused, they decided to institute this suit challenging their retirement and the inclusion

 

29.        On the lone issue formulated by the claimants, the 2nd and 3rd defendants submitted that it may not exhaustively and comprehensively resolve all the issues in this case. The 2nd and 3rd defendants accordingly formulated their own issue, namely:

Given the nature of employment of the claimants, can the decision of the 1st defendant 24th Plenary displace the provisions of statutes and stabilizing Regulations governing the employment and retirement of the claimants.

 

 

30.           To the defendants, given this issue, the claimants from their pleading admitted being members of the Nigeria Police Force. That by virtue of section 214(1) of the 1999 Constitution, the Nigeria Police is a Federal Government Agency and as such brought the claimants to the category of public officers. That apart from the Constitution, section 3(1) of the Police Act 2020 established the Nigeria Police Force and other sundry legislation that recognised the Nigeria Police Force as a Federal Agency and its personnel as public officers.

 

31.        The defendants went on that another issue is the nature of contract of the members of the Force across the cadres. That statutory provisions and judicial pronouncements recognized three types of employment in Nigeria namely: (1) employment which is governed by statute (ii) employment by written contract by parties (iii) employment at will or master-servant holding at pleasure of employer; citing Imoloame v. West African Examination Council [1999] 9 NWLR (Pt 265) — the page is not given — on what constitutes employment which is governed by statute. That it is an employment with statutory flavour; and employment is said to have statutory flavour when the appointment and retirement is protected by statute or laid down regulations made to govern the procedure for employment of an employee. The rules and regulations are part of the terms and conditions of the employee employment and this is what gives it statutory flavour.

 

32.          The defendants continued that recruitment and appointment into the Nigeria Police are government by statutes, rules and regulation. For the recruitment or appointment of any member of the Force to be valid, the process and procedure must follow the provisions of the statutes detailing how recruitment and appointment should be made. To this end, the said decision of 24th Plenary of the 1st defendant runs foul of the provisions of the extant statutes such as sections 39, 41 and 42 of the Police Regulation Cap P19 LFN 1990, the law in force when the claimants were elevated/appointed to Cadet ASP rank. Section 39 of the Regulation (supra) states thus:

When vacancies in the establishment of Assistant Superintendent of Police cannot by reason of unavailability of suitable candidates be filled by promotion from within the Force, the Inspector-General of Police shall so inform the Nigeria Police Council and may request it to arrange for the posts to be filled by direct entry.

 

33.         To the defendants, this section has clearly explained the action of the Force to have two categories of persons within a Cadet of ASP. The Police Regulation ably provided for both Force Entrants and direct entrants. Force Entrants are those who possessed the requisite qualification while serving as non-commissioned officers while direct entrants are those who had never been Police before but qualified under section 42 of the Police Regulation (supra). That the whole gamut of the Regulation above cited did not state resignation from junior rank as a prerequisite for elevating a junior member of the Force to the rank of Cadet ASP, urging the Court to so hold.

 

34.       Again, that the so called signal that is not written in the court language has not in any way been interpreted to the understanding of the Court and as such cannot be relied upon. There are many words that were used for particular purpose. That contrary to their ordinary English meaning, this makes it imperative for the Court not to admit and rely on any signal exhibited on the supporting affidavit. In other words, the Court having not been a Police officer and the signal having not been interpreted and explained, the Court cannot read and understand it.

 

35.       That the claimants in this case are wittingly placing heavy reliance on section 6(1) and (2) of the Police Service Commission (Establishment) Act and the decision of the 1st defendant 24th Plenary. The defendants agreed with the position of the claimants especially as provided under section 6(2) of the Act thus: “The Commission shall not be subject to direction, control or supervision of any other authority of person in the performance of its functions other than as prescribed in this Act”. But that this provision did not state that the Commission shall not observe the relevant laws and regulations in the performance of its function. Section 8 Rule 020810(1) Public Service Rules 2008 expressly stated how to exit from the public service in Nigeria. The Rule states thus: “The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier”. Sub (ii) of Rule 020810 (supra) went further to state: “No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier”.

 

36.       That the so called signals, letter and verdict of the 24th Plenary of the 1st defendant tend to undermine the above statutory provisions, governing contract of employment with statutory flavour, urging the Court to so hold. That the decision of the 1st defendant plenary cannot and lacks the legal vires to second guess the provisions of the statute. If the 1st defendant wants to enlarge and expand their powers to recruit and appoint outside the relevant statutes. It has the right to approach the National Assembly with an amendment bill, not by way of verdict of its plenary that tend to conflict with the provisions of the relevant Acts, Rules and Regulations, urging the Court to so hold.

 

37.       That from the outset, the 2nd and 3rd defendants are the head of the Nigeria Police Force; as the lead law enforcement Agency of the Federal Government of Nigeria, they did not find the claimants guilty of any misconduct, did not dismiss nor compulsorily retire them. Rather, that some of the claimants have served out their statutory number of years with from the dates of their respectively enlistment as recruits constables into the Nigeria Police Force.

 

38.        The defendants proceeded that the claimants alleged that they were asked to resign but did not show any proof of such resignation. That he who alleges must prove. That they went further to state that the signal stated that if they fail to resign, they would be presumed to have resigned, without stating under what law a person or authority can presume a person who did not resign to have resigned.

 

39.        That the Nigeria Police Regulation made pursuant to section 46 of the Police Act Cap P19 LFN 1990 and re-enacted under section 140 of the Police Act 2020 expressly provided the way and manner of employment, promotion, dismissal and retirement of all cadres of Police officers especially at its Part V sections 71 - 128. Additionally, that section 107 of the Regulation, which stipulates terms of service of non-commissioned officers, prohibits any member of rank and file from withdrawing or resigning his service or voluntarily retire when he is yet to complete the period for which he re-engaged. That the whole hug of the claimants’ case did not state that any or all of them had completed his term of enlistment or other re-engagement as at the time the presumption of resignation took place. That Timothy Menakeya v. Ann Menakaya [1994] 5 NWLR (Pt. 345) 512 SC states thus: “what is invalid in law particularly as a matter of public policy cannot be waived by the parties to litigation”. In other words, that public policy forbids two parties from contracting out of the mandatory law.

 

40.           That the distinctions the claimants made between pensionable employment and ‘active service’ is not only curious but bizarre in the sense that it is statutorily stated that service in the Nigeria Police at all cadres is an employment governed by statute and pensionable. Like the wide claims the claimants are used to making, they have again tried to allege that service in the Police Force as non-commissioned officer is simply an ‘active service’ and not ‘pensionable service’. That, like they averred in their counter-affidavit, all cadres of employment in the Nigeria Police Force, whether non-commissioned officers or superior Police officers cadres, are all pensionable.

 

41.       To the defendants, another angle to this claim is that the claimants did not state that on their own volition they resigned from service, either after first enlistment, or any subsequent re- engagements but want the Court to believe that their resignation was presumed. That the question now is: does anyone have the authority to presume any person who did not resign to have resigned? Accordingly, that before the claimants can effectively urge this Court to rule in their favour, they must show proof of resignation as no person has the power to presume something as important as resignation. Also, they must show any particular month since their first enlistment and subsequent re-engagement when they did not receive or were paid salaries and allowances. that it is a serious blackmail for someone who received salaries and allowances for a period of 35 years unbroken from the same service to turn back and claim that someone presumed he resigned.

 

42.        In conclusion, the defendants urged the Court to discountenance the claims of the claimants as they are nothing but gold-diggers who are afraid to face the realities of life after retirement. That the claimants have served their statutory 35 years without blemish and so are entitled to pension and gratuity calculated from the first date in service, urging the Court to so hold.

 

THE CLAIMANTS’ REPLY ON POINTS OF LAW

43.       In reacting on points of law, the claimants first submitted that paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 28, 30, 33, 34, 35 and 36 of the counter-affidavit of the 2nd and 3rd defendants are incompetent for non-compliance with the provisions of section 115 of the Evidence Act 2011. The claimants then referred to Mallam Nasiru Audu Baba v. Taraba State Government [2019] Legalpedia (CA) 11141, which held that the contents of an affidavit can be equated with sworn evidence; therefore, it ought to contain facts within the knowledge of the deponent not extraneous matters such as legal arguments and conclusions. Also cited is Timipa Okponipere v. The State [2013] Legalpedia (SC)11611.

44.        On the test to determine whether or not an affidavit contains extraneous matter, by way of objection, or prayer, or legal argument or conclusion, the claimants referred to Mrs Ganiat Yetunde Elias v. Ecobank Nigeria Plc [2016] Legalpedia (CA) 98471, which upheld the state laid down in Bamaiyi v. State [2001] 1 NWLR (Pt. 715) 270 at 289 thus:

The test is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning…

 

45.      Accordingly, the claimants submitted that the said paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 28, 30, 33, 34, 35 and 36 of the counter-affidavit of the 2nd and 3rd defendants contain prayers, objections and legal arguments, which are matters that ought to be pressed by counsel in his address as well as conclusions which should not the drawn by witnesses but left for the Court to reach.

 

46.          Also, that in paragraphs 3, 7 and 35 of the said counter-affidavit of the 2nd and 3rd defendants, the deponent, Inspr. Jonah Ati, deposed to facts derived from sources other than his own personal knowledge without setting forth explicitly the facts and circumstances forming the ground of his belief.

 

47.         Furthermore, that the deponent did not comply with section 115(4) of the Evidence Act, which requires that when such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information.

 

48.        Relying on Josien Holdings Ltd & ors v. Lornamead Ltd & anor [1995] 1 NWLR (Pt. 37l) 254 at 264 and Dr Oladipo Maia v Mr Costa Samouris [2002] 7 NWLR (Pt. 765) 18 at 102, the claimants urged the Court to strike out the offending paragraphs of the counter-affidavit. And that once these offending paragraphs are struck out, it means that the specific facts in the affidavit remain uncontroverted, citing FBN Plc v. Ndareke & Sons (Nig) Ltd [2009] 15 NWLR (Pt. 1164) 406, Ogunsola v. Usman [2002] 14 NWLR (Pt. 788) 636 and Okonkwo v. FRN [2011] 11 NWLR (Pt. 1258) 215.

 

49.       The 2nd and 3rd defendants had submitted that recruitment and appointment into the Nigeria Police is governed by statute, rules and regulations. They also submitted that the decision of the 1st defendant at its 24th Plenary runs foul of extant statutes such as sections 39, 41 and 42 of the Police Regulation Cap P19 LFN 1990. In reply, the claimants submitted that he who alleges must prove, citing Rt. Hon. Rotimi Chibuike Amaechi v. INEC [2009] LegalPedia (SC) 81169. The claimants then reproduced sections 39, 41 and 42 of the Police Regulation Cap P19 LFN 1990 thus:

[39] When vacancies in the establishment of Assistant Superintendents of Police cannot, by reason of unavailability of suitable candidates, be filled by promotions from within the Force, the Inspector-General shall so inform the Nigeria Police Council, and may request it to arrange for the posts to be filled by direct entry.

[41]   The appointments of Cadet Assistant Superintendents of Police shall be restricted to trainees destined for general duties appointments in the Force.

[42]   (1) The general qualifications required of a male or female candidate for appointment as a Cadet Assistant Superintendent of Police (general duties) are as follows:

(a)   age - not below 23 years or above 28 years;

(b)    physical fitness - must be certified by a government medical officer as being physically and mentally fit for service in the Force;

(c)   education - must be in possession of a pass degree from a university recognised by the Federal Ministry of Education;

(d)  character - must be exemplary;

(e)   financial status - must be free from pecuniary embarrassment.

(2)           A male candidate shall be not less than 1.67 metres in height anal shall have an expanded chest measurement of not less than 86 centimetres.

(3)       A female candidate shall be unmarried and shall be not less than 1.67 metres in height.

 

50.          To the claimants, the 1st defendant decision in its 24th Plenary meeting on 27 and 28 September 2017, as shown in the claimants’ Exhibits F and G, is that all officers who were directed to resign their appointments as non-commissioned officers before taking up fresh appointment into the Cadet fresh appointment are to maintain the date of their appointments as Cadet Officers as the date of their first appointment. That it is trite that address of counsel, however brilliant, cannot take the place of evidence particularly where there is no evidence to support the address, citing Oduwole v. West [2010] 10 NWLR (Pt. 1203) 598 and Neka G.B.B. Manufacturing Co. Ltd v. ACB [2004] 1 SCN “1193 at 205”. That the defendants did not demonstrated how the Plenary decision in any way ran foul of sections 39, 41 and 42 of the Police Regulation Cap P19 LFN 1990 as he alleged.

 

51.        On the contrary, that the admission of the claimants into the Cadet ASP program by the 2nd defendant complies with sections 39, 41 and 42 of the Police Regulation Cap P19 LFN 1990. Also, that the Plenary decision that all officers who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointment into the Cadet program are to maintain the date of their appointments as Cadet Officers as the date of their first appointment is in concord with Rule 020801(b) of the Public Service Rules 2008. That the Plenary decision is consistent with the forfeiture by resignation of previous service which is also recognised by Rule 020801(b) of the Public Service Rules 2008 and does not in any way undermine any statutory provision.

 

52.        The 2nd and 3rd defendants had stated that the claimants alleged they were asked to resign without any proof of such resignation. In reply, the claimants submitted that Exhibit B of the claimants speak for itself. Furthermore, that by section 169 of the Evidence Act, the 2nd and 3rd defendants are estopped from denying the truth of the resignation of the claimants. Also, that the submission that the signal was not written in the court language and interpreted to the understanding of the Court is a very disingenuous submission, citing Nworie Nwali v. The State [1991] Legalpedia (SC) 18188, which held the English language as the language of the court. To the claimant, Exhibit B was not made in vernacular as to require translation, but in English language. The relevant part of the signal reads:

…THE FORCE POLICY SHOULD BE ABUNDANTLY CLEAR TO POLICEMEN WHO ACQUIRE HIGHER QUALIFICATIONS WHILST SERVING THAT SHOULD THEY WISH TO BE RECONSIDERED FOR CADET SPOL OR INSPECTOR’S SCHEME X THEY SHOULD BE ADVISED TO RESIGN FROM THE FORCE AND SEEK ENLISTMENT INTO THE ENHANCED POSITION IN THE FORCE X WHERE THEY DO NOT RESIGN AND ARE APPOINTED INTO THE CADET SCHEME THEY WILL BE DEEMED TO HAVE RESIGNED THEIR EARLIER APPOINTMENT AND THEY CANNOT CLAIM ANY RIGHT OR PRIVILEGE OVER AND ABOVE THEIR CIVILIAN COUNTERPARTS WHO JOIN THE FORCE WITH THEM X…

 

53.       That the words are clear and unambiguous, and so should be given their simple and ordinary grammatical meaning, citing Alhaji Ismaila Abdulkareem & anor v. Ali Mayaki & ors [2018] Legalpedia (CA) 19871.

 

54.       Furthermore, that by the Police Act and Regulations the administration of the Nigeria Police is vested on the Inspector-General of Police, referring to Elizabeth Mabamije v. Hans Wolfgang Otto [2016] Legalpedia (SC) 39111 on the issue of estoppel i.e. that a person shall not be allowed to say one thing at one time and the opposite at another time.

 

55.       The claimants urged the Court to note that their averments in paragraphs 18, 19, 20 and 31 of the affidavit in support of the originating summons were not contradicted. That any unchallenged and uncontradicted fact in an affidavit remains undisputed and is deemed admitted by the adversary and the court will so hold, citing Chief M. A. Inegbedion v. Dr Selo-Ojemen & ors [2013] Legalpedia (SC) 07611.

 

56.        Furthermore, that 2nd & 3rd defendants failed to exhibit any directive to appeal against the said judgment of His Lordship Learned brother.

 

57.       That if the Court strikes out the offending paragraphs that the claimants pointed out, Exhibits NPF I, NPF II and NPF III cannot stand on their own and ought to be discountenanced.

 

58.      That Exhibits NPF I and NPF II did not in any way contradict the averments of the claimants. In item 6 of NPF I, it was stated that the 1st claimant was appointed into the ASP I rank on February 1, 2005. This record agrees with the claimants’ Exhibit C that upon the resignation or deemed resignation of his previous appointment, he was given a fresh appointment with effect from 1o February 2005.

59.       Furthermore, that Exhibit NPF III agrees with the claimants’ averments in paragraphs 13, 14, 15, l6 & 17 of the affidavit in support of the originating summons. In the final analysis, the claimants submitted that GIVEN THE NATURE OF EMPLOYMENT OF THE CLAIMANTS, THE DECISION OF THE 1ST DEFENDANT 24TH PLENARY DID NOT IN ANY WAY DISPLACE THE PROVISIONS OF STATUTES AND STABILIZING REGULATIONS GOVERNING THE EMPLOYMENT AND RETIREMENT OF THE CLAIMANTS. The claimants urged the Court to rely on the averments in paragraph 27, 28, 29, 30, 31, 32 and 33 and grant the prayers sought by the claimants in their originating summons.

 

COURT’S  DECISION

60.         I took my time to consider the processes and submissions of the parties. The 2nd and 3rd defendants had complained about the claimants’ Exhibit B, which is a signal from NIGPOL, ADMIN LAGOS to COMPOL ACADEMY KADUNA. To the 2nd and 3rd defendants, the signal was not written in the court language and interpreted to the understanding of the Court. In answer, the claimants submitted that Exhibit B was written in plain English and so requires no special interpretation. I look through Exhibit B; and I agree with the claimants that it is written in plain English and so requires no special interpretation. This being so, Exhibit B shall be used as such in this judgment. I so rule.

 

61.       The question the claimants posed to this Court for determination was reproduced at the start of this judgment. For what it is worth, I will reproduce it one more time. It is:

Whether taking into consideration the combined effects of section 6(1) and (2) of the Police Service Commission (Establishment) Act No. 1 2001 and Rule 020801 of the Public Service Rules 2008 of the Federal Republic of Nigeria, the decision of the Police Service Commission at the 24th Plenary Meeting on the 27th and 28th September, 2017 in relation to maintaining the date of appointment as Cadet Officers as the date of their first appointment, is valid in law.

 

62.       The claimants then prayed for two declaratory reliefs and five orders against the defendants. The law is that a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See Okereke v. Umahi & ors [2016] LPELR-40035(SC), Nyesom v. Peterside & ors [2016] LPELR-40036(SC) and Mrs Catherine Udeogu & 11 ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16 February 2018. Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, throws more light in insisting that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4 December 2018.

 

63.        The key statutory provisions calling for interpretation here are: section 6(1) and (2) of the Police Service Commission (Establishment) Act No. 1 2001 and Rule 020801 of the Public Service Rules (PSR) 2008. What the claimants want this Court to do is to consider the actions of the defendants, especially the 2nd and 3rd defendants, in retiring them as per Exhibits H and K attached to the claimants’ affidavit in support of the originating summons. By Exhibit G attached to the claimants’ affidavit in support, the 1st defendant informed the 2nd defendant that the Commission at its 24th Plenary Meeting considered petitions sent in by aggrieved Police Officers of Courses 18 and 19 of the Police Academy regarding the question of the date of their appointment so as to determine the correct date of their retirement. And that the Commission took the decision that the date of their appointment as Cadet ASPs is to be taken as the date of their first appointment. The 2nd defendant was accordingly asked to implement the decision.

 

64.        The claimants in the instant case are members of Course 22 (Force Entrants of the Police Academy). They are before this Court arguing that they are entitled to benefit from Exhibit G as well as Exhibit F, the minutes of the said 24th Plenary Meeting of the 1st defendant which he’d own 27 and 28 September 2017 where the decision that led to Exhibit G was taken. The claimants are also relying on the decision of Her Ladyship Hon. Justice Oyewumi of this Court in CSP Sunday Okuguni & ors v. Police Service Commission & 2 ors unreported Suit No. NICN/ ABJ/353/2019, the judgment of which was delivered on 13 January 2021. The claimants in CSP Sunday Okuguni were of Course 20, while the claimants in the instant case are of Course 22.

 

65.         A fundamental principle in adjudicating labour disputes is that, except where the case is hinged on unfair labour practice where comparison may be made (which is not the case in the instant suit), a claimant must found his action on his own right and entitlement, not that of another. In Mr Gabriel Aghuno v. John Holt Plc unreported Suit No. NICN/LA/349/2013, the judgment of which was delivered on 15th May 2018 at paragraph 41, this Court stated thus:

[41] …in labour relations, a claimant must found his action on his own right and entitlement, not on the right or entitlement of another. See Stephen Ayaogu & ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/NICN/38/2010, the judgment of which was delivered on 27th October 2017, which held thus: “…save for a case of unfair labour practice…a claimant can only found his case on the strength of his right and entitlement, not on that of another person”. Even in cases of unfair labour practice, the claimant must first plead and show/prove his own entitlement and the instrument that bestows the entitlement before making comparison with another’s entitlement.

 

66.           Though the defendants said nothing of CSP Sunday Okuguni in their reaction to the arguments of the claimants, I noticed that there are marked differences between that case and the instant case. While in CSP Sunday Okuguni the claimants came by way of complaint, the claimants in the instant case decided to come by way of originating summons. And this Court has warned in several cases of the danger of coming by way of originating summons given that it generally delimits recovery. I shall talk more on the differences between CSP Sunday Okuguni and the instant case later.

67.       Like I pointed out earlier, the claimants hinged their case on section 6(1) and (2) of the Police Service Commission (Establishment) Act 2001 and Rule 020801 of the PSR 2008. Section 6 of the Police Service Commission (Establishment) Act 2001 provides as follows:

(1)   The Commission shall -

(a)           be responsible for the appointment and promotion of persons to offices (other than the office of the Inspector-General of Police) in the Nigeria Police Force;

(b)         dismiss and exercise disciplinary control over persons (other than the Inspector- General of Police) in the Nigeria Police Force;

(c)          formulate polices and guidelines for the appointment, promotion, discipline and dismissal of officers of the Nigeria Police Force;

(d)       identify factors inhibiting or undermining discipline in the Nigeria Police Force;

(e)          formulate and implement policies aimed at the efficiency and discipline to the Nigeria Police Force;

(f)       perform such other functions which in the opinion of the Commission are required to ensure the optimal efficiency of the Nigeria Police Force; and

(g)        carry out such other functions as the President may, from time to time, direct.

(2)    The Commission shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions other than as is prescribed in this Act.

 

68.         By IGP & ors v. Umolo & anor [2022] LPELR-57715(CA), the primary function of the Nigeria Police Service Commission is to appoint, promote and discipline police officers (other than the Inspector-General of Police).

 

69.         In relying on Rule 020801 of the PSR the claimants reproduced what they said was Rule 020801(b) of the PSR 2008 as that upon which their case rests. And this how they quoted it:

020801(b) By virtue of the provisions of Regulation 15 of the Pension Reform Act 2004, all previous pensionable service is forfeited on resignation and cannot be taken into account for pension purposes if the officer is subsequently re-employed except where, under certain circumstances, such a break in service has been condoned by the Office of Establishments and Pension.

 

70.          Now, I looked through the Public Service Rules (2008 Corrected Version) With Official Gazette 2009 (PSR). This I did in both the hardcopy as well as in Lawpavilion. There is no Rule 020801(b). There is only Rule 020801; and it deals with termination of appointment during probationary period in these words:

020801- If within his probationary period it is established to the satisfaction of the authority empowered to appoint an officer that he is not qualified for efficient service, his appointment may be terminated by that authority at any time without any further compensation than free transport to the place from which he was engaged and such free transport will be granted only if his conduct has been good. Provided that termination is not due to misconduct on the officer's part, it will be effected by means of a month's notice and, subject to the same proviso, if the officer is eligible for vacation leave in respect of his/her service to date, such leave may be granted together with (if the officer so desires) normal vacation leave transport grant in lieu of the free transport mentioned above. Such leave, if any, shall be so arranged as to take place within the period of notice and, if possible, to expire on the same day as the notice. The position regarding the refund of the cost of any training given the officer is governed by the bond relating to the such training.

 

71.        So, where from did the claimants get the Rule 020801(b) they quoted? I do not know. What this means is that a major plank upon which the claimants’ cases rests falls flat. All arguments hinged on Rule 020801 accordingly go to nothing and so are hereby discountenanced. I so rule.

 

72.       This means that what is before the Court is the question whether given section 6(1) and (2) of the Police Service Commission (Establishment) Act 2001, the decision of the Police Service Commission at the 24th Plenary Meeting on the 27 and 28 September 2017 in relation to maintaining the date of appointment as Cadet Officers as the date of their first appointment, is valid in law. And in deciding this question, is CSP Sunday Okuguni on all fours with the instant case as to be guided and persuaded by it?

 

73.        In responding to the 2nd and 3rd defendants’ counter-affidavit, the claimants had urged that paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 28, 30, 33, 34, 35  and 36 of the counter-affidavit of the 2nd and 3rd defendants contain prayers, objections and legal arguments and so offend section 115 of the Evidence Act 2011. Section 115 of the Evidence Act 2011 provides thus:

(1)  Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(2)  An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.

(3)  When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

(4)  When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.

 

74.       How do we determine whether depositions in an affidavit offend section 115 of the Evidence Act? Chellarams Plc v. UBA Plc [2022] LPELR-57845(CA) quoted and applied the litmus test for the determination of the presence of facts and circumstances in an affidavit as re-echoed by Uwaifo, JSC in Gen & Aviation Serv. Ltd v. Thahal [2004] 10 NWLR (Pt. 880) 50 SC at 73, which relied on Bamaiyi v. State [2001] 8 NWLR (Pt. 715) 270, in these words:

The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit. If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact or of circumstances, then they qualify as statements of facts or of circumstances. This means that affidavit evidence, like oral evidence, must as a general rule deal with facts and avoid matter of inference or conclusion which fall within the province of the Court; or objection, prayer or legal argument which must be left to counsel. If therefore affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted, but is simply regarded as extraneous to the determination of factual disputes.

 

75.       By Isedonmwen v. Union Bank Plc [2011] LPELR 4020(CA) per Okoro JCA (as he then was but now JSC) had stated thus:

Affidavit evidence must as a general rule deal with facts and avoid matters of inference or conclusion which fall within the province of the Court, or objection, prayer or legal argument which must be left to counsel.

 

If, therefore, affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted but is simply regarded as extraneous to the determination of factual disputes.

 

76.      And in Taraba State Govt & ors v. Orume & ors [2022] LPELR-57606(CA), it was held thus: “It is trite that legal arguments are for the learned counsel to the parties while conclusions from facts deposed are function of the Courts”.

 

77.          I have accordingly gone through each of the paragraphs of the 2nd and 3rd defendants’ counter-affidavit. And I find and rule thus:

(1)    Paragraph 3 simply states that the deponent, Inspr. Jonah Ati, deposes to the affidavit facts known to him or those he was informed by the legal team and officers of the Force archives and establishment. The deponent did not state who these officers and legal team are. To the extent that the officers and legal team are not disclosed, this paragraph offends section 115 of the Evidence Act 2011.

(2)    Paragraph 6 states that the cadet scheme in the Nigeria Police Force (NPF) predate 1989 contrary to what the claimants stated. There is nothing wrong with this averment.

(3)   Paragraph 7 states that Joseph Offor informed the deponent that no one has authority to direct another to resign his pensionable employment for the purpose of getting another pensionable employment as the public service rules and other laws make provision in that regard. This is a submission. In any event, the time, place and circumstances of the information given by Joseph Offor were not clearly given. The averment accordingly offends section 115 of the Evidence Act 2011. The law, by Jimoh v. Hon. Minister FCT & ors [2018] LPELR-46329(SC), is that “for every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief”.

(4)    Paragraph 8 questions why the original signal of Exhibit A was not tendered by the claimants. This is a legal argument and so offends section 115 of the Evidence Act 2011.

(5)    To the extent that paragraph 9 states that Joseph Offor informed the deponent that resignation must be positive and cannot be presumed by any person, it is a legal argument and so offends section 115 of the Evidence Act 2011.

(6)     In paragraph 10, the deponent stated that Exhibit B does not pertain to terms of employment but rather deals with payment of lodging allowance for force entrants cadets who were undergoing course between 1988 and 1989. Aside from this being legal argument and conclusion, and so offends section 115 of the Evidence Act 2011, by the averment, the deponent is interpreting a document, which as a witness he cannot do. See Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/ 259/2013, the judgment for which was delivered on 20 May 2019, which held that the interpretation of documents is not the function of a witness; it is a function of law meant for the Court.

(7)   In paragraph 11, the deponent also sought to interpret or state what Exhibits C and D are. This is a conclusion and so offends section 115 of the Evidence Act 2011. The averment is also caught up by the rule in Olapade Samuel Olatunwo Oyebola & ors v. FAAN (supra).

(8)    Paragraph 12 is also a conclusion as it states that the claimants’ new appointments as cadet ASP cannot operate to displace the previous years they served as junior officers especially in the calculation of their pension and gratuity. The averment offends section 115 of the Evidence Act.

(9)   I see nothing wrong with paragraph 13.

(10)    Paragraph 14 talks of the essence of the quoted signal, which to the deponent is routine administrative protocol aimed at ensuring that personnel’s records are up to date. This is a legal argument and so offends section 115 of the Evidence Act. The averment is also caught up by the rule in Olapade Samuel Olatunwo Oyebola & ors v. FAAN (supra).

(11)   Paragraph 15 states that the decision of the 1st defendant in issue tends to undermine the extant laws and rules and so is not enforceable. This is legal argument and conclusion; and so it offends section 115 of the Evidence Act 2011.

(12)    Paragraph 16 states that the 2nd and 3rd defendants found the directive of the 1st defendant unenforceable. This is a conclusion and so offends section 115 of the Evidence Act 2011.

(13)     Paragraph 18 states that there is no proven case of discrimination and selective application. This is a conclusion/inference only the Court can make. It offends section 115 of the Evidence Act 2011.

(14)    Paragraph 21 states that paragraphs 21 and 22 of the claimants’ affidavit in support cannot be the true state of affairs given the directive of the Federal Government to the NPF to appeal against the said judgment. In saying that paragraphs 21 and 22 of the claimants’ affidavit in support cannot be the true state of affairs, the deponent is not stating facts but drawing and inference and so stating an opinion, which makes it a legal argument. It offends section 115 of the Evidence Act 2011.

(15)   Paragraph 22 states that the noncompliance with the decision of the 1st defendant 24th Plenary is founded on the fact that it is in conflict with extant Rules. This is legal argument and so it offends section 115 of the Evidence Act 2011.

(16)   Paragraph 23 states that paragraph 25 of the claimants’ affidavit in support is true as it does not have any negative effect on Course 21 (force entrants) of the police academy. This is drawing an inference and hence an opinion, not fact, and so is a legal argument. The averment offends section 115 of the Evidence Act 2011.

(17)    Paragraph 24 states that some of the claimants have attained compulsory retirement having served 35 years commencing from the dates of enlistment into the NPF. This is the legal question before the Court, and a witness cannot be giving answer to it. The averment accordingly offends section 115 of the Evidence Act 2011.

(18)    Paragraph 25 states that rank and file employment is as pensionable as cadet ASP appointment. This is a conclusion and so offends section 115 of the Evidence Act 2011.

(19)    Paragraph 26 states that actions of the claimants are aimed to undermine the extant laws and Rules regulating employment and pension in Nigeria. This is legal argument and conclusion; and so offend section 115 of the Evidence Act 2011.

(20)    Paragraph 28 states that the decision referred to in paragraph 30 of the claimants’ affidavit in support is true but the said decision was reached without authority and as such cannot be enforced nor complied with. This is legal argument and conclusion; and so offends section 115 of the Evidence Act 2011.

(21)   I see nothing wrong with paragraph 30.

(22)      Paragraph 33 states that the pension of the claimants and others in similar circumstances commences from their dates of first enlistment and not their dates of appointment to the rank of cadet ASP as claimed. This is an issue before the Court. And so it is a legal argument and a conclusion. It offends section 115 of the Evidence Act 2011.

(23)   I see nothing wrong with paragraph 34.

(24)    Paragraph 35 states that Joseph Offor informed the deponent that police Regulation did not make provision for the resignation of any man of rank and file as such none of the claimants could have possibly resigned as claimed. Aside from the fact that the time, place and circumstances of the information given by Joseph Offor here were not given, the averment itself is drawing an inference and hence is an opinion, a legal argument and a conclusion; and so it offends section 115 of the Evidence Act 2011.

(25)    Paragraph 36 states that resignation must be positive and no one has the power to presume the resignation of another person. This is a legal argument and a conclusion; and so it offends section 115 of the Evidence Act 2011.

 

78.         The law is that offending paragraphs in an affidavit are to be struck out. See Agbaso v. Iwunze & ors [2019] LPELR-48906(SC), Polaris Bank v. Clifford [2022] LPELR-57464(CA). Accordingly, paragraphs 3, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 28, 33, 35 and 36 of the counter-affidavit of the 2nd and 3rd defendants offend section 115 of the Evidence Act 2011 and so are hereby struck out. I so rule.

 

79.         Despite that these paragraphs of the 2nd and 3rd defendants’ counter-affidavit have been struck out, the burden, like I pointed out earlier, remains with the claimants to prove their case on their own evidence and not on the weakness of the defence or even lack of evidence by the defence.

 

80.      All parties agree that the claimants started off as non-commissioned officers before they were appointed as Cadet ASPs. Exhibits C and D both dated 11 January 2005 are the respective appointment letters of the 1st and 2nd claimants, who are suing for themselves and as representatives of members of Course 22. The appointment letters indicate the terms under which the claimants were appointed Cadet ASPs on Harmonised Police Salary Structure (HAPOSS) Level 08 Step 2 with effect from the date they commence training. They were to undergo training at the Police Academy, Kano from 1 February 2005. Upon successfully completing the course, they will be appointed as Assistant Superintendent of Police (ASP) on probation on Salary Level 8 Step 4. Subject to good quarterly reports and the claimants passing the prescribed confirmation examination, the claimants would then be confirmed. If their performance during probation is unsatisfactory or they fail to pass the confirmation examination, then they would be discharged from the Police as unfit for the office of Senior Police Officer. The claimants had the liberty to resign their respective appointments at any time during the training by giving three months’ notice but would be required to refund all or part of the expenses incurred in connection with their respective appointments. The appointments were made subject to passing prescribed medical tests. If the claimants accepted these conditions, then they were required to present themselves for examination by a Government Medical Officer. The appointment letters in paragraph 5 then stated thus: “In the case of Force entrants their initial dates of enlistment  stand”. This term about the initial dates of enlistment standing for the claimants did not feature in CSP Sunday Okuguni.

 

81.      All the parties agree that the claimants are Force entrants. So what was the initial dates of the enlistment of the claimants? There is no averment by the claimants in their affidavit in support of the originating summons showing the initial dates of their enlistment into the Police Force. Exhibits H and J, the retirement letters respectively dated 23 October 2019 and 23 June 2020, simply stated that the claimants were retired because they have put in 35 years of meritorious service. Paragraph 5 of the 2nd and 3rd defendants’ counter-affidavit simply states that “some of the said Course 22 (force entrants) are no longer members of the force, having voluntarily retired after 35 years of meritorious service to the nation”. However, Exhibit NPF III dated 12 June 2018, which is the notification of voluntary retirement by the 1st claimant, states that the 1st claimant was enlisted into the Force on 1 December 1983 and that he will accordingly clock 35 years of service come 31 November 2018.

 

82.         The case of the 2nd and 3rd defendants is that some members of Course 22 voluntarily retired after 35 years of service. In proof, the 2nd and 3rd defendants tendered Exhibit NPF III date 12 June 2018. Exhibit NPF III is headed, “Notification of Voluntary Retirement from Service Re: 94105 SP Samuel Odion Eromosele”. It is the resignation letter of the 1st claimant in this suit. It states:

I wish to humbly notify the Authority of the Nigeria Police Force of my Voluntary Retirement from Service.

I was enlisted into the Force on the 1st day of December, 1983 will therefore due to complete a tour of thirty five years Service come the 31st day of November 2018.

 

I thank the President of the Federal Republic of Nigeria, the IGP, the Chairman and members Police service Commission (PSC) as well as the entire members of the Nigeria Police Force (NPF) for the opportunity given to me too serve this great Nation.

 

I look forward to a robust relationship with the Nigeria Police Force even as I wish her the best of Policing.

 

83.         Once again, in Exhibit NPF III would be found another distinguishing fact regarding the instant case and CSP Sunday Okuguni. In CSP Sunday Okuguni, the retirement letter in issue was headed, “Application for Notification of Retirement/Re-adjustment of Retirement Date: AP/ N057933 CSP Sunday Okuguni”. Hon. Justice Oyewumi considered this retirement letter and held thus in paragraph 22 of the judgment:

From the facts and circumstances of this case, it is without peradventure as could be gleaned from the content of the letter highlighted supra, that the 1st claimant did not expressly wish that he be retired as at the 1st of April, 2019 because it is clear from the heading of the purported letter of retirement titled, “Application for Notification of Retirement/Re-adjustment of Retirement Date: AP/N057933 CSP Sunday Okuguni”…

 

[23] …A careful and holistic reading of the content of the 1st claimant’s letter captured hereinbefore clearly shows that the intention of the 1st claimant is not to retire rather it discloses that the 1st claimant seeks the intervention of the defendants to re-adjust his date of retirement to be when he would have clocked sixty years of age and sequel to the fact that his first date of appointment had become the 1st day of May, 2000, when he was appointed Cadet ASP…

 

84.       There is thus a huge difference between the retirement letter of the 1st claimant in the instant case with that of the 1st claimant in CSP Sunday Okuguni. In the instant case, there is nothing from the 1st claimant indicating that he did not voluntarily retire. This is not the case in CSP Sunday Okuguni where the 1st claimant made it very clear that he wanted his date of retirement re-adjusted. And this played a huge role in Hon. Justice Oyewumi reaching the conclusion she did in that case.

 

85.         As it, the claimants in this case cannot rely on CSP Sunday Okuguni, which is clearly distinguishable from the instant case, to argue that they did not voluntarily retire or were compelled to retire by the 2nd and 3rd defendants. The appointment letters of the claimants in the instant case clearly indicated that “their initial dates of enlistment stand”. They consented to this clause. aside from the fact that only the enlisted date of the 1st claimant is revealed video Exhibit NPF III, and the dates of other claimants are not revealed, Exhibit F and G did not relate to the claimants in this case. A claimant must found his action on his own right and entitlement, not that of another. See Mr Gabriel Aghuno v. John Holt Plc (supra). This the claimants have not done.

The evidence shows that the 1st claimant retired voluntarily. This being so, he cannot complain. A fortiori, since there is nothing to show how the other claimants retired, and the 1st claimant also sues on their behalf, all the claimants must be held to have retired voluntarily. I so hold.

 

86.        On the whole, I am not satisfied that the claimants proved their case as to be entitled to the reliefs they seek in this case. The case fails and so is hereby dismissed.

 

87.       Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

 

Hon. Justice B. B. Kanyip, PhD, OFR