Nigeria Police Force (NPF) v. Police Service Commission (PSC) & Anor (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division delivered on the 20th day of September, 2020 wherein the court allowed the respondent’s appeal against the judgment of the Federal High Court, the trial court, delivered on the 2nd day of December, 2019.

Hostilities and tussle led to the action at the trial court by the respondent. Just by way of brief summary of facts, the squabbles emanated from the dispute between the contending parties as to who, between the Police Service Commission and the Nigeria Police Force and the Inspector General of Police is statutorily responsible for the recruitment of constables into the Nigeria Police Force.

Series of attempts were initiated towards amicable resolution of the dispute. It became clear to the 1st respondent that it had to have recourse to the trial court for this knotty question to be determined. The 1st respondent therefore submitted five questions to be determined by the trial court. The questions for determination are set out as follows:

1. “Whether by the combined provisions of section 153 subsection (1) (m), section 153 subsection (2) and section 215 subsection (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraph 30 Part 1 of the Third Schedule to the Constitution as well as sections 6 and 24 of the Police Service Commission (Establishment) Act, the Police Service Commission is the sole statutory body exclusively empowered and responsible for the appointment, promotion, dismissal and exercise disciplinary control over persons holding or aspiring to hold offices in the Nigeria Police Force except the Inspector General of Police.
2. Whether by virtue of the provisions of section 153 subsection (1) (m), section 153 subsection (2) and section 215(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraph 30 Part 1 of the Third Schedule to the Constitution, as well as sections 6 and 24 of the Police Service Commission (Establishment) Act, the Nigeria Police Force or the Inspector General of Police or any other body or appointee of the Federal Government of Nigeria other than the Police Service Commission cannot exercise any powers to appoint, promote, dismiss or exercise disciplinary control over persons holding or aspiring to hold offices in the Nigeria Police Force except the Inspector General of Police.
3. Whether by virtue of section 1 subsection 3 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any legislation or instrument relied upon by the defendants (Including but not limited to the Police Act and the Police Regulations) in exercising or purporting to exercise the powers to appoint, promote, dismiss or discipline persons holding or aspiring to hold offices in the Nigeria Police Force, being inconsistent with the provisions of the Constitution particularly section 153 subsection (1) (m), section 153 subsection (2) and section 215(1) (b) of the Constitution, is valid, null and void and of no effect whatsoever.
4. Whether the acts and attempts of the defendants in appointing, recruiting and/or shortlisting for appointment, persons aspiring to hold offices in the Nigeria Police Force amount to unlawful and unjustified usurpation of the exclusive constitutional and statutory functions and powers of the Police Service Commission.
5. Further to question 4 supra. Whether the defendants’ act of appointing or purporting to appoint persons into offices in the 1st defendant in usurpation of the exclusive functions and powers of the plaintiff is ultra vires the powers of the defendants and accordingly null and void and of no effect whatsoever.”

Upon the determination of the questions, the 1st respondent as plaintiff at the trial court sought for the following reliefs:

1. A declaration that by the combined provisions of section 153 subsection 1(m), section 153 subsection (2) and section 215 subsection (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraph 30 Part of the Third Schedule to the Constitution as well as sections 6 and 24 of the Police Service Commission (Establishment) Act, the Police Service Commission is the sole statutory body exclusively empowered and responsible for the appointment, promotion, dismissal and exercise of disciplinary control over persons holding or aspiring to hold offices in the Nigeria Police Force except the Inspector-General of Police.
2. A declaration that by virtue of the provisions of section 153 subsection 1(m), section 153 subsection (2) and section 215(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraph 30 Part 1 of the Third Schedule of the Constitution as well as sections 6 and 24 of the Police Service Commission (Establishment) Act, the Nigeria Police Force or the Inspector-General of Police or any other body or appointee of the Federal Government of Nigeria other than the Police Service Commission cannot exercise any powers to appoint, promote, dismiss, or exercise disciplinary control over persons holding or aspiring to hold officers in the Nigeria Police Force except the Inspector-General of Police.
3. A declaration that by virtue of section 1 subsection 3 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), any piece of legislation or instrument relied upon by the defendants (including but not limited to the Police Act and the Police Regulations) in exercising or purporting to exercise the powers to appoint, promote, dismiss or discipline persons holding or aspiring to hold offices in the Nigeria Police Force, being inconsistent with the provisions of the Constitution particularly section 153 subsection 1(m), section 153 subsection (2) and section 215(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraph 30 Part 1 of the Third Schedule to the Constitution, is invalid, null and void and of no effect whatsoever.
4. A declaration that any act or attempt by the defendants in appointing, recruiting and/or shortlisting for appointment, any person aspiring to hold any office in the Nigeria Police Force except the office of the Inspector General of Police amounts to unlawful and unjustified usurpation of the constitutional and statutory functions and powers of the plaintiff and accordingly null and void and of no effect whatsoever.
5. An order nullifying any act or attempt by the defendants whether acting jointly or severally in appointing or purporting to appoint any person into the 1st defendant whether by means of enlistment, shortlisting, recognition, recruitment or in any other manner howsoever, such act or attempt being ultra vires the functions and powers of the defendants.
6. An order of perpetual injunction restraining the defendants, jointly and severally, by themselves or through their officers, agents or representatives or through any other body or appointee of the Federal Government of Nigeria, from further exercising or purporting to exercise the powers to appoint, promote, dismiss, or in any manner howsoever exercise disciplinary control over any person holding or aspiring to hold any office in the Nigeria Police Force other than the Inspector General of Police.
7. An order of perpetual injunction restraining the defendants, jointly and severally, from interfering or further interfering in any manner howsoever with the plaintiff’s discharge of its constitutional and statutory functions in respect of the appointment, promotion, dismissal, or exercise disciplinary control over persons holding or aspiring to hold offices in the Nigeria Police Force other than the Inspector General of Police.”

The learned trial Judge, while dismissing the 1st respondent’s case, held, amongst others, that the powers of the 1st respondent to appoint officers into the 1st appellant (except the 2nd appellant) does not include the power to recruit constables, this conclusion reached by the trial court nettled the 1st respondent who appealed to the lower court.

The lower court took a contrary view by reaching the conclusion that the power of appointment donated to the 1st respondent by the Constitution and its enabling Act encapsulates the power to recruit constables.

Dissatisfied with the decision of the lower court, the appellants filed an amended notice of appeal containing twenty-three (23) grounds of appeal. The amended notice of appeal was filed on the 23rd day of October, 2021 but deemed as properly filed and served on the 19th day of September, 2022.

Learned senior counsel Dr. Alex A. Izinyon, SAN, leading other counsel prepared and filed the appellants’ brief of argument on the 23rd day of March, 2021, the brief was deemed as properly filed and served on the 19th day of September, 2021 and the following three issues were crafted and submitted for determination. The issues are reproduced as follows:

1. “Whether the court below was right in its finding as between the appellants (the 2nd appellant – Inspector General of Police) and the 1st respondent (Police Service Commission) that it is the 1st respondent who has the power to recruit/enlist constables having regard to the relevant provisions of the 1999 Constitution; Police Service Commission (Establishment) Act, the Police Act and Nigeria Police Regulations, 1968 as canvassed by the parties before the court below. (Grounds 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 21 of the amended notice of appeal).
2. Whether court below was right when without affording the appellant any opportunity to be heard, suo motu raised and determined the issue that a person who is not appointed cannot be said to be enlisted into an office in the Nigeria Police Force placing reliance on the provisions of sections 14 and 15 of the Police Act, 1968 which provisions were not canvassed by the parties before the court below. (Grounds 2, 4, and 22 of the amended notice of appeal).
3. Whether in the light of the evidence on record showing that the issue regarding the powers of the President to issue directives pursuant to provision of section 19 of the Police Service Commission (Establishment) Act, 2001 was duly raised and argued by the appellants but the 1st respondent failed to proffer any argument on same as raised by the appellants, the court below was right when it held that the trial court failed to invite parties to address it on the implication of the provisions of section 19 of the Police Service Commission (Establishment) Act, 2001 which was not the issue resolved by the trial court. (Grounds 19 and 23 of the amended notice of appeal)”

On the other side, learned senior counsel Kanu Agabi, CON, SAN leading other counsel filed the 1st respondent’s brief of argument on the 16th day of September, 2022, the brief was deemed as properly filed and served on the 19th day of September, 2022. In the said brief of argument, learned senior counsel submitted three issues for determination, the issues are also reproduced as follows:

1. “Whether their Lordships of the court below were not right when they held that the word “recruitment” is encapsulated and inherent in the word “appointment” and that the words “appointment” and “recruitment” mean one and the same thing and that the power to enlist recruit constables into the Police Force or appoint them is constitutional and statutorily vested in the 1st respondent pursuant to paragraph 30, part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 21 of the amended notice of appeal)
2. Whether their Lordships of the court below were not right when they held that a person who has not been appointed cannot be enlisted into an office in the Nigeria Police Force and whether by this decision, the Court of Appeal violated the appellants’ right to fair hearing. (Grounds 2, 20 and 22 of the amended notice of appeal)
3. Whether their lordships of the court below were not right when they held that the 1st respondent’s right to fair hearing was violated when the learned trial Judge raised and determined suo motu the issue of the overriding power of the President to issue directives of a general nature or relating to matters of policy with regard to the performance of the Commission of its functions set out in Section 19 of the Police Service Commission (Establishment) Act, 2001 having failed to invite the parties to address it on the implications of Section 19 of the Police Service (Establishment) Act. (Ground 23 of the amended notice of appeal).”

The 2nd respondent – Attorney General of the Federation did not file any brief of argument. At the hearing of the appeal on the 20th day of June, 2023, the learned senior counsel for the respective parties adopted their briefs of argument, urging the court to accept as well-founded the respective arguments canvassed in support of the position taken on each side of the contending parties. Since the issues submitted for determination are similar, I will proceed to consider the submissions of the respective counsel in each of the briefs of argument.

Submissions of counsel for the appellants

Issue one

Arguing the first issue, learned senior counsel for the appellants submitted that the reliance of the lower Court on the definition of the word “recruitment” as defined in Chapter 1, section 2, Number 020201 of the Public Service Rules, 2008 in arriving at its decision that the word “recruitment” is inherent in the word “appointment”, was a grave error and occasioned a substantial miscarriage of justice. He submitted that the Public Service Rules does not apply to the Nigeria Police Force, even though Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (the “Constitution”) defines “public service of the Federation” to include the Armed Forces of the Federation, the Nigeria Police Force and other Government Security Agencies established by law.