IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE: FRIDAY 17TH MAY, 2024

SUIT NO: NICN/YEN/10/2018

BETWEEN:

KEMEWERIKUMO GEORGE-MANGI………………CLAIMANT

AND

1.     CHEVRON NIGERIA LIMITED

2.     INSPECTOR GENERAL, NIGERIAN  DEFENDANTS

POLICE FORCE

                                   

REPRESENTATION

Dr. P.J. Fawei Esq and M.E. Amachree Allison Esq for the Claimant

U.V. Nwobia Esq with Tochukwu N. Maduekwe Esq for the 1st Defendant

2nd Defendant not represented

JUDGMENT

The Claimant commenced this suit by the Complaint filed on the 20th of February 2018 pursuant to Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017 whereat the Claimant claims against the Defendants the following reliefs:

a.      A DECLARATION that the claimant's dismissal or termination as a security personnel of the 1st Defendant on the basis of the criminal allegation and charges levelled against him without the outcome of the trial process is wrong.

 

b.      AN ORDER awarding the sum of Two Million Eight Hundred and Ninety-Four Thousand, Eighty-Two Naira, Seventy-Five Kobo (N2,894,082.75) in favour of the claimant as special damages for salaries and emoluments payable to the claimant from December 2014 to February 2017 when the criminal proceedings against the claimant were dismissed.

 

c.      AN ORDER awarding the sum of N50, 000, 000. 00 (Fifty Million Naira) only as general damages for wrongful dismissal.

The Claimant predicated his claims on the Statement of Fact and Witness’ Statement on Oath filed on the 20th of February, 20218 and Reply and Further Witness’s Statement on Oath filed on the 30th of October 2018. The 1st Defendant, upon being served with the Complaint, filed an Amended Statement of Defence and a Witness’ Deposition on Oath on the 28th of July 2022. The 2nd Defendant predicated its defence on the Amended Statement of Defence filed on the 7th of December 2018.

The suit proceeded to hearing on the 21st of November 2019 where the Claimant called a sole witness. The Claimant who testified for himself hereinafter refers to as CW1 identified his Depositions made on Oath made on the 20th of February 20218 and the 30th of October 2018 and adopted the same as his evidence in support of his case. CW1 thereafter tendered Exhibits CW001, CW002, CW003, CW004, CW005, CW006 and CW007.

On the 16th June, 2022, the 1st Defendant opened its defence, Mr. Balogun Musa hereinafter refers to as DW1 testified for the 1st Defendant. DW1 identified his Statement on Oath filed on the 28th of July 2022 and adopted same as his evidence in support of the defence of the 1st Defendant. DW1 thereafter tendered Exhibits CV001, CV002, CV003 and CV004.

After the close of the hearing of the suit, on the 4th of December 2023, the matter came up for the adoption of the Final Written Addresses filed by Counsel. Learned Counsel for the 1st Defendant identified his Final Written Address filed on the 16th October 2023 and Reply on Point of Law filed on the 23rd of November 2023; Counsel for the 1st Defendant adopted these processes as his legal submission in the aid of the case of the 1st Defendant and urged this Court to dismiss this suit.

Counsel for the Claimant identified his Final Written Address filed on the 27th day of October, 2023 and adopted same as his legal submission in the aid of the case of the Claimant while urging this Court grant the claim of the Claimants.

The 2nd Defendant did not call any evidence and also did not file any written address.

CASE OF THE CLAIMANT

The case of the Claimant is that the 1st Defendant has a corporate social responsibility to its host communities which includes the Koluama 1 Community, the 1st Defendant through the KEFFES Rural Development Foundation called for qualified persons from the respective communities to be forwarded for employment for which the claimant's name was sent to the 1st Defendant from Koluama 1 community. That sometime in the year 2009, the 1st Defendant forwarded amongst other names, the name of the Claimant to the Police Training School at Ikeja in Lagos State for security and supernumerary training for three months starting from the 1st day of June to the 1st day of September all of 2009.

Sequel to the above he completed the training program for Non-Police Establishments (such as that of the 1st Defendant). He was designated a Spy Police Constable with Force No. 2217 wherein he was also issued a certificate. That he was thereafter asked to resume work as a Security personnel with the security department of the 1st Defendant at its premises wherein the Claimant discharged his duties effectively and efficiently so that he was able to foil a plot of some youths of the Chevron host communities to protest at Chevron facilities against the non-payment of compensation some time in 2012. That from when he resumed work as security personnel with the 1st Defendant, he has always been paid his monthly salary and other emoluments amounting to the sum of One Hundred and Seven Thousand, One Hundred and Eighty-Eight Naira, Twenty-Five Kobo (N107,188.25) only by the 1st defendant directly to claimant's Union Bank of Nigeria Plc account with Account Name: George Kemewerikumo and Account No. 0029258265.

That the Claimant, being a trained security personnel, prepared and wrote a proposed plan to compensate and handle the issues arising from the Chevron host communities comprising the KEFFES Rural Development Foundation to solve the possible threats or breakdown in the relationship between Chevron Nigeria Limited and the host communities. That sequel on the said proposal made to the 1st Defendant as stated herein, the 1st Defendant caused the men of the 2nd Defendant to arrest the claimant on the 16th day of September 2014 at Topcon Warri (chevron yard) premises belonging to the 1st Defendant on the allegation of threat against the lives of some top management staff of the 1st Defendant. That he was subsequently arraigned before Warri Magistrate Court 1 in Delta State on a three counts charge on the 18th day of September 2014 for which trial commenced and one Agbaje Michael (a security supervisor to Chevron) testified as prosecution witness against the Claimant. After the conclusion of the trial, the claimant as accused person was discharged and acquitted of all the three counts levelled against him by the Ruling of the Magistrate Court on a submission of no case to answer made by the accused delivered on the 17th day of February 2017.

Shortly after his arrest and subsequent arraignment before the Magistrate Court 1, Warri in Delta State, the 1st Defendant disentitled the claimant who was on court bail from having access to the 1st defendant premises without any formal communication as to its decision against him if any. So that the 1st Defendant took a step further to stop paying the salaries and other emoluments to claimant since December 2014 till the commencement of this action without formally terminating his employment.

That his community (Koluama 1 Community) through its paramount ruler His Royal Majesty, King Solomon Edi-Mangi (Kolu-XI) as well as the KEFFES Host Communities Youth Presidents wrote to the 1st Defendant demanding amongst others to reinstate the claimant and also pay him his monthly salaries and other emoluments but the 1st defendant also ignored the said letters. That the 1st Defendant in its reply to the letter written to it by the paramount ruler of Koluama 1 community alleged that the claimant was recruited by the 2nd defendant and deployed to the 1st defendant and that after his arrest and subsequent prosecution, it was the 2nd defendant that redeployed the claimant for which he was neither given any letter nor notified.

DEFENCE OF THE 1ST DEFENDANT

The 1st Defendant stated whenever the 1st Defendant requires the services of SPY Police, it makes a request to the Nigerian Police Force for the required number of SPY Police and the Police in turn, following its statutory powers, solely recruit, train and deploy the requested number of SPY Police. The 1st Defendant over the years had requested and/or applied for the services of SPY Police per the law. The 1st Defendant in 2007 made a request to the Commissioner of Police Edo State Police Command for the services of SPY Police. The Commissioner of Police notified the 1st Defendant that on completion of training, the Police command will post SPY Police personnel to the 1st Defendant. The recruitment, training and deployment of SPY Police are the exclusive prerogative of the Nigerian Police Force under the law. As a result, the 1st Defendant could not have forwarded and did not forward, the name of the Claimant or any other person, as alleged. The Police were responsible for fixing the remuneration of SPY Police and for promoting them like every other SPY Police, the Claimant remained an officer of and in the employment of the Nigeria Police Force

That the posting or otherwise of the Claimant as SPY Police to the security department of the 1st Defendant was the exclusive prerogative of the 2nd Defendant. That the posting did not create any form of distinct and separate employment relationship between the Claimant and the 1st Defendant, other than the statutory relationship between the Claimant and the 2nd Defendant

It made the monthly payment to the Claimant on the directive of the Commissioner of Police Lagos State, who is under the control of, and reports to the 2nd Defendant who is the statutory employer of the Claimants.

Some management staff of the 1st Defendant received threats to their lives, the 1st Defendant; reporting the threat to the Nigerian Police Force was a lawful step taken by the 1st Defendant for the safety and security of all its personnel and having made the report, the 1st Defendant was not in the position to direct the 2nd Defendant and or its personnel in the way and manner they discharged their statutory duties, including the decision to arrest/arraign and try the Claimant.

DEFENCE OF THE 2ND DEFENDANT

The 2nd Defendant stated that it is the routine procedure of training supernumerary Police Officers that the 2nd Defendant gives consideration to persons already nominated and forwarded to it for training by the person or corporate body availing himself of the services of the officer. This procedure was duly complied with in respect of the recruitment of the Claimant. The claimant was posted to the 1st Defendant to discharge his duties as a Supernumerary police officer at the facility of the 1st Defendant. That payment of salaries and other emoluments of the claimant was supposed to be paid to the Accountant General of the Federation. That direction for such payment by the 1st Defendant was made in the letter AV:4825/LS/V.6/37 dated 30/11/2010 pleaded by the 1st Defendant in paragraph 7th of the statement of defence.

That the 2nd Defendant was not informed by the 1st Defendant of the misconduct of the claimant neither did it give the 2nd Defendant notice to redeploy the claimant and the 2nd Defendant did not redeploy the Claimant to any other person or department.

 

 

ISSUES FOR DETERMINATION

Counsel for the Claimant nominated two issues for the determination of this suit to wit:

a.      Whether the Claimant has shown reasonable cause of action against the Defendants and whether the 1st Defendant is estopped from raising the settled issue of reasonable cause of action.

 

b.      Whether the Claimant has proved his case against the Defendants and is therefore entitled to all the reliefs

Counsel for the 1st Defendant nominated two issues for the determination of this suit to wit:

1.      Whether this Honourable Court lacks the competence to entertain this suit by reason of non-disclosure of any reasonable cause of action against the 1st Defendant by the Claimant.

 

2.      Whether the Claimant has proved his entitlement to the relief sought as against the 1st Defendant.

The issues nominated by the parties are similar though differently worded. Even at that, a quick check on the record of this Court delineates that this Court has previously ruled on issue one raised by the parties. By the application dated and filed on the 28th of May 2018, the 1st Defendant prayed this Court to strike out this suit against the 1st Defendant for not disclosing a reasonable cause of action against the 1st Defendant, the Ruling on which was delivered on the 22nd of October 2018 where this Court held that this suit discloses a reasonable cause of action against the Defendants as averred by the Claimant in his Statement of Fact. Judicial authorities have always maintained that a court has no power to review its own decision on a matter or revisit same once it has been given. At that point, the court is said to be functus officio and lacks the vires to set aside its judgment or ruling except under certain conditions: see the case of REFUGE HOME SAVINGS & LOANS LTD. V. GARKUWA (2023) 12 NWLR (PT. 1897) 175.

In UKACHUKWU V. UBA (2005) 18 NWLR (Pt. 956) 1 the Court of Appeal held that

The question is whether this court has become functus officio. The learned senior advocate appearing for the applicant, in arguing the point, has lost the fact that similar issue was decided by this court in an earlier application in Ukachukwu v. Uba (No.2) supra. In the said motion one of the grounds for the application was that the judgment was a nullity being tainted with fraud and impropriety. I agree with the learned Senior Advocate appearing for the appellant/respondent that the issue was considered in that application and this court passed its decision on it on 2nd December 2004. By that decision, this court has undoubtedly performed its task and has therefore become functus officio.

Given this foregoing, this Court does not have jurisdiction to engage itself in the post-mortem of its earlier decision; issue one is incompetent and it is hereby struck out. Consequently, I adopt issue one nominated by the Claimant. for the clarity’s sake, the issue to determine this suit is:

Whether the Claimant has proved his case against the Defendants and is therefore entitled to all the reliefs sought.

SUBMISSION OF THE CLAIMANT

The Claimant submitted that he was first and foremost employed by the 1st Defendant after which he was sent to the 2nd defendant's institution for training. That the principal focus in this case is to first determine the status of the relationship that existed between the claimant and defendants. This is particularly because the 1st Defendant denied having an employer/employee relationship with the Claimant. Rather its defence is that the claimant was an employee of the Nigerian Police Force, the 2nd Defendant in this suit. That it is the norm of the 1st Defendant to request for persons from the KEFFES host communities for employment in its company and once nominations or recommendations are made, it is taken to mean an employment in the culture of the KEFFES Rural Development Foundation. The Claimant had since then worked judiciously for the 1st defendant, received monthly salaries, paid taxes and was even granted leave by the 1st defendant from 2009 to sometime in 2014.

Submitted that the absence of a letter of offer of appointment made to the claimant does not deny the relationship that existed between the Claimant and 1st Defendant as being one of employer-employee relationship. That the proof of an existence of a contract of employment need not be written in all circumstances. By the express provisions of section 91 of the Labour Act, 2004 a contract of employment could culminate in the form of oral, written, express, or implied by the conduct of the parties. Section 73 of the Employees Compensation Act, 2010 further reinforces this position when it defined an employee to be "a person employed by the employer under oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship, or casual basis and also includes domestic servants who is not a member of the family of the employer. That it is the facts surrounding the relationship between the parties that are considered in determining whether such a relationship was an employment relationship. Referred to the case of Ngun V Mobil Producing Nig Unltd (2013) LPELR-20197(CA). That the established facts in the instant case are that upon a letter of recommendation from the KEFFES Rural Development Foundation (KRDF), to the 1st Defendant, the Claimant was retained and sent for training at the Police Training School, Lagos (see Exhibit CW001). Upon completion of his training the Claimant resumed work at the premises of the 1st Defendant sometime in September 2009.

 

SUBMISSION OF THE 1ST DEFENDANT

The 1st Defendant submitted that the burden lies on a Plaintiff who asserts to prove his case based on his evidence and he will fail if he fails to discharge that burden. Cited Olukunlade vs. Samuel (2011)7 NWLR (Part 1276) at page 312, paragraphs D – F and also Section 131 of the Evidence Act, 2011.

Submitted that Section 2 of the Police Act Cap P19 L.F.N. 2004 defines a police officer as "any member of the force" and supernumerary police office as "a police officer appointed under Section 18, 19 or 21 of this Act or under an authorization given under section 20 of this Act." Section 18(1) of the Police Act provides thus "any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector General stating the nature and situation of the property in question and giving such other particulars as the Inspector-General may require.

Argued that the Claimant in proof of his claim that he was employed by the 1st Defendant as a supernumerary policeman tendered Exhibits CW001 – CW008. That it is clear that the Claimant failed to provide any evidence in proof of his assertion that he was employed by the 1st Defendant as a supernumerary police officer, and urged the court to so hold. It has been held that an employee who alleges that his employment was wrongly terminated has a strict burden placed upon him to establish the terms and conditions of his employment. Cited Momoh vs. CBN (2007)14 NWLR (part 1055) page 504 at pages 530- 531, paragraphs H- C.

There is no doubt that the 1st Defendant wrote Exhibit CV001 to the Nigeria Police Force requesting for the services of supernumerary police. However, Section 18(3)(d) of the Police Act provides that: Every supernumerary police officer appointed under this section. (d) -"Subject to the restrictions imposed by paragraph (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. Submitted that there no legal basis for the Claimant to claim that he was employed by the 1st Defendant. It is also clear as shown in Exhibit CV002, that it was the Nigeria Police Force that deployed or posted the Claimant to the facility of the 1st Defendant and pursuant to Section 18(3) of the Police Act the Claimant is subject to disciplinary measures by the Police who decided to arrest and prosecute him over criminal allegations in line with their statutory duties and obligations of maintaining law and order. Cited Section 4 of the Police Act which is to the effect that the investigation and detection of crime are the primary duties of the police.

The 1st Defendant submitted that the failure of the Claimant to show any evidence of a letter of employment from the 1st Defendant is fatal to his case. The Claimant's arguments that he received his salaries and allowances from the 1st Defendant will not avail him. This is because, by Exhibit CV004, the Nigeria Police wrote a letter dated 30th November 2010 to the 1st Defendant requesting a remittal of the salaries and allowances of the supernumerary police officers posted to the facility of the 1st Defendant. This is clear evidence that payment of their salaries is not the direct responsibility of the 1st Defendant.

COURT’S DECISION

I have carefully distilled the pleadings, evidence led by the parties, and the legal submissions of counsel for and against the claim of the Claimant. I will not forget to mention that the reliefs or claims of the Claimants are triangular viz: a claim against unlawful dismissal or termination of the employment of the Claimant with the 1st Defendant, special damages of the unpaid salaries and emolument payable to the Claimant from December 2014 to February 2017 and award of general damages for the wrongful dismissal.   

These three claims revolve around the employment relationship. Because both the Defendants are dribbling the employment of the Claimant to avoid responsibility.  The starting point of the claim of the Claimant is, who is the employer of the Claimant between the Defendants? It is when the employer of the Claimant is established that the Court can delve into the propriety of the termination of the employment of the Claimant.

The Claimant pleaded and led evidence to state that the 1st Defendant through the KEFFES Rural Development Foundation called for qualified persons from the respective communities to be forwarded for employment for which the claimant's name was sent to the 1st Defendant from Koluama 1 community. That sometime in the year 2009, the 1st Defendant forwarded amongst other names, the name of the Claimant to the Police Training School at Ikeja in Lagos State for security and supernumerary training for three months starting from the 1st day of June to the 1st day of September all of 2009. He completed the training program for Non-Police Establishments (such as that of the 1st Defendant). He was designated a Spy Police Constable with Force No. 2217 and was also issued a certificate. That he was thereafter asked to resume work as a Security personnel with the security department of the 1st Defendant at its premises wherein the Claimant discharged his duties effectively and efficiently. The Claimant tendered Exhibit CW001- Letter of Recommendation dated 1st of June 2009.

In opposition to the averment and evidence of the Claimant, the 1st Defendant stated that whenever the 1st Defendant requires the services of SPY Police, it makes a request to the Nigerian Police Force for the required number of SPY Police and the Police in turn, following its statutory powers, solely recruit, train and deploy the requested number of SPY Police. The 1st Defendant over the years had requested and/or applied for the services of SPY Police per the law. The 1st Defendant in 2007 made a request to the Commissioner of Police Edo State Police Command for the services of SPY Police. The Commissioner of Police notified the 1st Defendant that on completion of training, the Police command will post SPY Police personnel to the 1st Defendant. The recruitment, training and deployment of SPY Police are the exclusive prerogative of the Nigerian Police Force under the law. As a result, the 1st Defendant could not have forwarded and did not forward, the name of the Claimant or any other person, as alleged. DW1 tendered Exhibit CV001 and CV002 as proof of this fact.

The 2nd Defendant’s pleading on this fact is in line with the averment and evidence of the Claimant, that is the 2nd Defendant admitted that it was the 1st Defendant who forwarded the name of the Claimant to the 2nd Defendant for the training as SPY police or supernumerary police. The trite principle of law is that an admitted fact requires no further proof. It is deemed established. Thus, when an allegation of a material nature is taken as admitted, there would be no need to adduce further evidence to prove the allegation: see the case of JUKOK INTL LTD V. DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55.

I am inquisitive to query whether admission by the 2nd Defendant binds the 1st Defendant. I do not think so because each party represents its interest individually, and pleadings were severally filed not jointly; hence, the admission of the 2nd Defendant on how the employment relationship between the Claimant and the 1st Defendant was created cannot bind the 1st Defendant. This position is fortified in the case of BUHARI V. INEC (2008) 19 NWLR (Pt. 1120) 246 where the Supreme Court held that:

I want to make another point. As the averment in paragraph 9 of the petition affects 1st and 2nd respondents on the one hand and the 3rd and 4th respondents on the other, admission to be valid must be made by the above two sets of respondents. This is because an admission by one set of respondents cannot bind the other set. 

Thus, the Claimant is not relieved of the burden to prove that the Claimant was employed by the 1st Defendant. In the absence of admission, the Court will resort to documentary evidence to find out who is the employer of the Claimant. Considering Exhibits CW001, KEFFES Communities Regional Development Council forwarded the names of two persons, Mr. Minnah Samuel B (Ezetu II Community) and Mr. Keme George (Koluama II Community), I presume the Claimant is the person named as Mr Keme George (Koluama II Community). First of all, Exhibit CW001 cannot metamorphose to the letter of employment, it does not create a master-servant relationship between the Claimant and the 1st Defendant.

Again, did the 1st Defendant forward the name of the Claimant to the 2nd Defendant as claimed by the Claimant? This takes us to Exhibit CV002, which is a letter from the 1st Defendant to the Commission of Police, Edo State Police Command. Exhibit CV002 reads thus:

BASIC TRAINING OF SPUERUNMERARY POLICE PERSONNEL

Dear Sir,

Chevron Nigeria Limited is in the process of having the Police authorities recruit qualified persons for training as supernumerary Police Personnel. We are already working with Commissioners of Police of affected State for recruitment of 55 Spy drivers and 20 General Duty Spy personal totaling 75.

Enquiries at the Police Force Headquarters, Abuja showed that the Police Training School, Benni is now the only approved institution for the training. Attached letter from the IGP, ‘F’ Department is relevant.

We will appreciate if you can give approval for the training and advise us of the modalities. Our Patrick Origbe, Security Superintendent will liaise with your office. His phone number is………………..

My understanding of the content of Exhibit CV002 as reproduced above does not suggest that the 1st Defendant has employed some persons and wanted the 2nd Defendant to train them as spy police. The first paragraph of Exhibit CV002 means that Chevron Nigeria Limited wants the Police authorities to recruit qualified persons for training as supernumerary Police Personnel not that the 1st Defendant has recruited or employed persons and wanted the Police authorities to train them as spy police. By Exhibit CV002, the 1st Defendant did not forward any name to the 2nd Defendant for training as supernumerary Police Personnel.

In fact, it is the 2nd Defendant which forwarded a list (Exhibit CV001) containing 79 names wherein the name of the Claimant is No. 19 to the 1st Defendant. The content of Exhibit CV001 which forwarded 79 names to the 1st Defendant reads thus:

RE-LIST OF ELIGIBLE CANDIDATES FOR SPY POLICE

I forward herewith attached list of qualified candidates for SPY Police training at Police Training School Benni.

On completion of the training, the SPY personnel will be posted to Chevron Nigeria Limited.

Acknowledge receipt please.

Exhibits CW001, CV001 and CV002 do not by any figment of imagination suggest any employment relationship between the Claimant and the 1st Defendant. This then reminds me of the importance of the letter of employment.  The 1st Defendant submitted that the failure of the Claimant to show any evidence of a letter of employment from the 1st Defendant is fatal to his case. The Claimant's arguments that he received his salaries and allowances from the 1st Defendant will not avail him.

Counsel for the Claimant submitted that the absence of a letter of offer of appointment made to the Claimant does not deny the relationship that existed between the Claimant and 1st Defendant as being one of the employer-employee relationships. That the proof of the existence of a contract of employment need not be written in all circumstances. By the express provisions of section 91 of the Labour Act, 2004 a contract of employment could culminate in the form of oral, written, express, or implied by the conduct of the parties. Section 73 of the Employees Compensation Act, 2010 further reinforces this position when it defines an employee to be "a person employed by the employer under an oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship, or casual basis and also includes domestic servants who is not a member of the family of the employer. It is the facts surrounding the relationship between the parties that are considered in determining whether such a relationship was an employment relationship. Referred to the case of Ngun V Mobil Producing Nig Unltd (2013) LPELR-20197(CA). That the facts in the instant case are that upon a letter of recommendation from the KEFFES Rural Development Foundation (KRDF), to the 1st Defendant, the Claimant was retained and sent for training at the Police Training School, Lagos (see Exhibit CW001). Upon completion of his training, the Claimant resumed work at the premises of the 1st Defendant sometime in September 2009.

I agree with the Claimant that it is not in all circumstances that the failure to tender a letter of employment will defeat the claim of an employee. This Court in the case of MR EBIWEI LAWSON VS DARLON OIL & GAS (NIG) LIMITED SUIT NO: NICN/YEN/16/2022 the judgment of which was delivered on Friday 8th March, 2024, the Court held that:

Given the admission of the Defendants that the 3rd Defendant brought in Mr Odi Lyon and the Claimant being his younger brothers to assist Mr Levi Wilson for a monthly allowance, it is sufficient to establish the employment relationship of the Claimant and the Defendants. It is therefore the finding of this Court that there is an employer-employee relationship between the Claimant and the Defendants.

In that case, the Claimant was not issued with the letter of employment but the Defendants admitted to have employed the Claimant. In this instant suit, the 1st Defendant denies employing the Claimant while the 2nd Defendant maintains that it is the 1st Defendant that employed the Claimant, so there is no other way the Court can determine who is the employer of the Claimant in the absence of admission except by tendering of letter of employment. Ordinarily, the terms and conditions that regulate and govern employment for services are embodied and contained in the letter offering the appointment or employment from the employer addressed to the employee which, if accepted freely and unconditionally by him, would constitute a valid, binding and legally enforceable agreement or contract of employment between them. It is therefore the free and unqualified acceptance of all the terms and conditions set out in the letter of appointment of the employee that forms the basis for the existence of a legally binding and enforceable relationship between him and the employer. In any action in which any of the parties claims a breach of any of the terms or conditions agreed to by the parties as set out in the letter of appointment, the letter of appointment becomes a sine qua non to the maintenance and success of the action: see the case UMERA V. N.R.C. (2022) 10 NWLR (Pt. 1838) 349.

This instant case can be distinguished from the case of MOBIL PRODUCING (NIG.) UNLTD. V. JOHNSON (2018) 14 NWLR (PT. 1639) 329, the precis of the case of the 1st – 15th Respondents who were plaintiffs at the trial court is that upon their success at the interview, they were offered employment into the security unit of the appellant via exhibits C1, C2, JR1, JR2, JR3, JR4, JR5 and JR6, with their salaries and emolument determined by the appellant. They were sent for training to the 16th - 18th respondents on basic guards duties. Thereafter the 1st - 15th respondents were issued exhibits G1 and G2 which are certificates of participation in the course and subsequently resumed duty of securing the appellant’s properties.

The Supreme Court unanimously held that:

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

Though the facts of case of MOBIL PRODUCING (NIG.) UNLTD. V. JOHNSON (supra) and this instant suit are almost the same; the area of difference is that the Claimant herein was not issued with a letter of appointment by the 1st Defendant. It is based on the letters of appointment issued by the Appellant that made the Supreme Court conclude that the 1st – 15th Respondents were employed by the Appellant.

Let me dig further into this case, the 1st Defendant maintained that the Claimant is a supernumerary police officer of the 2nd Defendant and the 1st Defendant tendered Exhibits CV001 and CV002. I have earlier reproduced the content of Exhibit CV002 which was written to the Commissioner of Police Edo State Police Command for the services of SPY Police.

If the Claimant is a supernumerary police officer of the 2nd Defendant as the parties want the Court to believe, it then means the Claimant was employed by the 2nd Defendant.

The provisions of the Police Act which deal with the appointment of supernumerary police officers are momentous here. But before going into that, I need to remind the parties that this suit was filed on the 20th of February 2018; the prevailing Police Act that was in existence when this suit was filed was the Police Act 1990 while this suit is pending, the National Assembly repealed and enacted the Police Act 2020. Thus, the Police Act 2020 does not apply to this case. The law applicable to a cause or matter and therefore the jurisdiction and competence of the court is determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law. It is immaterial that during the trial the law had been repealed: see the case of SOSSA V. FOKPO (2001) 1 NWLR (PT. 693) 16.

A supernumerary police officer is defined by section 2 of the Police Act, Laws of the Federation of Nigeria (LFN) 1990 as a Police Officer appointed under sections 18, 19 or 21 of the Police Act or under an authorization given under section 20 of the same Police Act. Section 18 of the Police Act, 1990 provides as follows: -

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

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

(3)                  Every supernumerary police officer appointed under this section:-

a.      Shall be appointed in respect of the area of the police province or, where there is no police province, the police district or police division in which the property which he is to protect is situated.

 

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 is appointed and in any police area adjacent thereto but not elsewhere, have the powers, privileges and immunities of a police officer; and

 

d.      subject to the restrictions imposed by paragraph (b) and (c) of this section 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 officer 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 officer’s pay for the 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; and any sum payable to the Accountant-General under this subsection which is not duly paid may be recovered in a summary manner before a magistrate on the complaint of any superior police officer:

Provided that this subsection shall not apply in the case of an appointment made on the application of a department of the Government of the Federation.

5                      Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officers appointment in respect of a police area within that part of Lagos State formerly known as the Federal Territory, to the Inspector- General or; in the case of an officer appointed in respect of a police area within a state, to the Commissioner of Police of that State: and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.

6                      Where the services of a supernumerary police officer are withdrawn in pursuance of subsection of this section in the course of a quarter for which the sum mentioned in subsection (4)(b) of this section has been paid to the Accountant-General, the Accountant-General shall pay to the person by whom that sum was paid a sum which bears to that sum the same proportion as the unexpired portion of that quarter bears to the whole of that quarter.

The Supreme Court in MOBIL PRODUCING (NIG.) UNLTD. V. JOHNSON (supra) summarized the above provision, the process of appointing a Supernumerary police officer as follows:

1.      An application by a person who desires the services of a Supernumerary police officer to the Inspector-General of Police.

 

2.      On receipt of the application, the Inspector General may, with the approval of the President, direct the appropriate authority to appoint such number of persons as Supernumerary Police Officers as the Inspector-General may deem fit for the protection of the applicant’s property.

 

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

By section 22(4) of the Act, “appropriate authority” as used in section18(2) (supra) is defined as follows:

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

Let it be known that a Supernumerary Police Officer is an employee of the Nigeria Police Force, by Section 18 (2) of the Police Act, Supernumerary Police Officers are appointed by the appropriate authority on the directive of the Inspector-General of Police and by Section 20(3)(c) a supernumerary police officer shall be a member of the police force for all purposes and shall accordingly be subject to the provisions of the Police Act. For avoidance of doubt, section 20(3) of the Police Act provides as follows:

20(3)              Every supernumerary police officer appointed under an authorization given under this section-

a.      shall be appointed in respect of the police area to which(a)the authorization relates;

 

b.      shall in the police area in respect of which area adjacent thereto, but not elsewhere have the powers, privileges(b)and immunities of a police officer; and

 

c.      subject to the restriction imposed by paragraph (b) and (c) of this section 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 to the provisions thereof relating to discipline.

Thus, if the parties herein wear the Claimant the garb of Supernumerary Police Officer, it then means that the appointment or designation of the Claimant as a Supernumerary Police Officer must comply with the provision of Sections 18 – 22 of the Police Act; anything short of the provisions of Sections 18 – 22 of the Police Act is a nullity. Exhibit CV002 is an application written to the Commissioner of Police Edo State Police Command for the services of SPY Police as against the Inspector-General stipulated under the provision of Section 18 of the Police Act. Though, the Claimant attended the police training and his subsequent deployment to the 1st Defendant via Exhibit CV001 by the 2nd Defendant. The certificate of participation in the police training school tendered by the Claimant, Exhibits CV001 and CV002 cannot cure the defect in the designation of the Claimant as a Supernumerary Police Officer of the 2nd Defendant. This Court cannot legitimize illegality in the designation of the Claimant as a Supernumerary Police Officer. I am very settled without hesitation whatsoever from the gamut of evidence before this Court that the defect in the appointment of the Claimant as a Supernumerary Police Officer is as follows:

i.                    the 1st Defendant did not write an application requiring the service of a Supernumerary Police Officer to the Inspector-General of Police;

ii.                 there is no evidence before this Court that the Police Service Commission had a hand in the employment of the Claimant; and

iii.               there is no evidence of payment of the appropriate fees to the account of the Accountant General of the Federation.

In MOBIL PRODUCING (NIG.) UNLTD. V. JOHNSON (supra), the Supreme Court held that:

It follows that in considering whether the 1st - 15th respondents were appointed as supernumerary police officers, it is the provision in sections 18 - 22 of the Police Act that must be considered to determine if such appointments were done in conformity with the provisions of the law creating such employment. As was rightly submitted by the learned counsel for the 1st - 15th respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express provision of the statute. It is trite law that when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever.

In conclusion, the Claimant was not employed by the 1st Defendant; failure of the Claimant to tender the letter of employment of the Claimant to prove that the Claimant was employed by the 1st Defendant is fatal to the case of the Claimant. Again, the procedure for the appointment of the Claimant as a supernumerary police officer of the 2nd Defendant is tainted with obvious disregard to the provisions of Sections 18, 19, 20, 21 and 22 of the Police Act. 

Though, I deeply sympathize with the Claimant; but sentiment has no place in our judicial proceedings the claim of the Claimant is prone to fail and sink. Flowing from the foregoing, the sole issue for determination is hereby resolved in favour of the Defendants and the case of Claimant is hereby dismissed accordingly. I so hold.

I make no order as to cost.

Judgment is hereby entered accordingly.

 

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

NATIONAL INDUSTRIAL COURT OF NIGERIA

YENEGOA DIVISION