Who Appoints Police Officers in Nigeria?

CASE TITLE: NPF & ORS V. POLICE SERVICE COMMISSION & ANOR LPELR-60782(SC)
JUDGMENT DATE: 11TH JULY, 2023
JUSTICES: MOHAMMED LAWAL GARBA, J.S.C.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
ADAMU JAURO, J.S.C.
TIJJANI ABUBAKAR, J.S.C.

PRACTICE AREA: GOVERNMENT AGENCY

FACTS:

This appeal borders on the proper body in charge of recruitment of constables.

This appeal is against the judgment of the Court of Appeal, Abuja, upturning the decision of the Federal High Court, Abuja, delivered by Honourable, Justice I.E Ekwo. 

The President of the Federal Republic of Nigeria had approved the enlistment of 10,000 recruit constables or lower cadre police officers by the Nigeria Police Force and the Inspector General of Police had duly commenced the said process, but the Police Service Commission took out an originating summons before the Federal High Court. The dispute was 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.

The learned trial Judge, while dismissing the Police Service Commission’s case, held, amongst others, that the powers of the Police Service Commission to appoint officers into the Nigeria Police Force (except the Inspector General of Police) does not include the power to recruit constables. The decision was anchored on the reasoning that Regulation 71 of Nigeria Police Regulations, 1968 specifically confers on the Nigeria Police Force and Inspector General of Police, the power to recruit constables and the statutory powers of the Police Service Commission, in relation to the appointment of officers into the Nigeria Police Force, are only exercisable after the Inspector General of Police had exercised the power to recruit the said constables. The Court took the view that the Police Service Commission’s powers of appointment are different from the Inspector General of Police’s power of recruitment.

The Police Service Commission appealed to the Court of Appeal, which took a contrary view by reaching the conclusion that the power of appointment donated to the Police Service Commission by the Constitution and its enabling Act encapsulates the power to recruit constables. Further, it was held that the word ‘recruitment’ is inherent in the word ‘appointment and therefore connotes one and the same thing.

Dissatisfied, the appellants appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The issue central to the determination of the appeal, as identified by the Court, was:

“Who, as between the Appellants and the Respondent, is vested with the statutory powers and responsibility of enlisting recruit constables or to put in another way, which body is by law charged with the duty to recruit constables.”

COUNSEL SUBMISSIONS:

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.

Learned senior Counsel submitted that Regulation 71 of the Nigeria Police Regulations 1968 clearly designates the statutory officers of the Appellant who shall be responsible for the enlistment of “recruit constables”; that the enlistment of recruit constables is for the purpose of identifying and training such persons before they can be appointed into offices in the 1st Appellant. Counsel argued that the words used in the Constitution and other statutory provisions relied upon by the 1st Respondent are not the same as those used in the Police Act and/or Regulations 71 – 106 of the Nigeria Police Regulations. Continuing, learned senior Counsel contended that the lower Court erred in law when the Court relied on the decision in TABIK INVESTMENT LTD & ANOR vs. GTB PLC [2011] 17 NWLR (PT. 1276) 240 at 261 on the meaning of the word public service, submitting that the Court did not decide that the provisions of the Public Service Rules, 2008 is applicable to the Appellant. Learned senior Counsel said the Police Act and the Police Service Commission (Establishment) Act, 2001, made separate and distinct provisions. While the Police Act and the Nigeria Police Regulations, 1968 made provisions specifically for the enlistment of recruit constables and their training, the Police Service Commission (Establishment) Act, 2001 and the Constitution specifically made provisions only for the appointment of persons to offices in the Appellant; contending that there is distinction between the words – “recruit” and “appoint”.

The provisions of Paragraph 30(a) of Part 1 of the Third Schedule, Sections 153(1)(m) & (2), and 215(1)(b) of the Constitution, Sections 6 and 24 of the Police Service Commission (Establishment) Act, 2001, Regulations 71, 76 – 99 and 105 of the Nigeria Police Regulations and several decided cases were relied upon in support of the submissions of the learned senior Counsel for the Appellants, he further submitted that the provisions of Nigeria Police Regulation which empowers the 2nd Appellant to recruit constables, are not inconsistent with the provisions of the Constitution. Learned Senior Counsel further contended that the lower Court wrongly applied the principle expressed in the Latin maxim – generalia specialibus non derogant in reaching the conclusion that the Nigeria Police Regulations is inconsistent with the Constitution. Counsel argued that a correct application of the maxim would have resulted in the lower Court coming to conclusion in favour of affirming the specific provisions contained in the Nigeria Police Regulations, made pursuant to Section 46 of the Police Act regarding recruitment of constables. Counsel submitted that the Police Act, which is an existing law, has not been repealed either by the Constitution or the Police Service Commission (Establishment) Act, 2001. Learned Counsel submitted that since the 1st Respondent did not raise any issue regarding the implied repeal of the Police Act or the Nigeria Police Regulations in the questions submitted and reliefs sought in the Amended Originating Summons, the Court below went beyond the scope of the matter before it, by nullifying the provisions of Regulations 71 – 106 of the Nigeria Police Regulations for being inconsistent with the provisions of Paragraph 30 of Part 1 of the Third Schedule to the Constitution and Section 6 of the Police  Service Commission (Establishment) Act, 2001. Learned Senior Counsel finally submitted that the Court below erred in holding that the Respondent discharged the burden of proof of its entitlement to the reliefs sought in the Amended Originating Summons. Counsel urged that this issue be resolved in favour of the Appellant. Submitting on the second issue, learned senior Counsel for the Appellant said the issue that a person who is not appointed cannot be enlisted was never raised or canvassed by any of the parties before the lower Court; hence, he said the issue was raised suo motu without affording the contending parties the opportunity to address the Court on the same. He submitted that the said issue did not arise from the case presented by the Respondent in its Amended Originating Summons and that it is not the 1st Respondent’s case that a person not appointed cannot be enlisted or that appointment comes before enlistment, citing OMOKUWAJO vs. FRN [2013] ALL FWLR (PT 684) 1 AT 19, paras A- C. Learned Senior Counsel also said the provisions of Sections 14 and 15 of the Police Act did not in any way define the words “appointment” and “recruitment” as the same. Counsel finally submitted that the decision of the Court below ought to be set aside on this point. Counsel therefore urged that this issue be resolved in favour of the Appellant.

Learned Senior Counsel while arguing the first and second issues together, submitted that the line of reasoning that the phrase “appoint persons to offices in the Nigeria Police Force” is not the same thing or accommodate the phrase “enlistment of recruit constables”; (and if it were to be so, the legislature would have expressly stated so) is a total misconception of the provisions of Section 153(2) of the Constitution, and the provisions of the Police Service Commission (Establishment) Act, 2001. Learned Senior Counsel submitted that the powers of appointment conferred on the 1st Respondent by both the Constitution and its enabling Act extend to the recruitment or enlistment of constables. The definition of the word “recruit” in the case of MATTHEW IYEKE V. P.T.I. [2019] 2 NWLR (PT 1656) 217; Chapter 2, Section 2, Number 020201 of the Public Service Rules, and the provisions of Sections 153(1) & (2) of the Constitution of the Federal Republic of Nigeria; Sections 6 and 24 of the Police Service Commission (Establishment) Act, 2001 were relied upon in support of the submissions of the 1st Respondent that the lower Court rightly held that a person who is not appointed cannot be said to be enlisted into an office in the Nigeria Police Force, relying on Sections 14 and 15 of the Police Act.

Learned senior Counsel for the Respondent argued that in holding that appointment precedes enlistment to Section 14 and 15 of the Police Act, the Court below did not raise any issue suo motu but resolved the third issue formulated for determination by the Respondent as Appellant, and that the said issue arose from the Appellants’ contention at the trial Court. Further, counsel submitted that the powers and functions of the 1st Respondent are not exercisable post-enlistment, citing Paragraph 30 of Part 1 of the Third Schedule to the Constitution and Section 6(1) of the Police Service Commission (Establishment) Act. Learned Senior Counsel submitted that the powers of the Respondent to appoint persons into offices in the 1st Appellant are specifically preserved under the extant Police Act, 2020, and this Court was invited to note that everyone in the Nigeria Police Force, is referred to as an officer, meaning the holder of an office, for instance Section 141 of the said Act, defines a constable as “any police officer below the rank of Corporal”. Counsel submitted that the relevant sections of the Police Regulations 1968, which purport to vest power of enlistment of recruit constables into the Nigeria Police Force, are void, as they are inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Police Service Commission (Establishment) Act, 2001.

Learned Counsel also contended that the Appellants’ attempt at distinguishing the case of TABIK INVESTMENT LTD & ANOR vs. GTB PLC (Supra) on the ground that what was decided in that case is that a Police Officer is a public servant and not that the Nigeria Police Force is part of the Public Service of the Federation, is erroneous. Counsel submitted that Section 318 of the Constitution defines the Police Force as part of the Public Service of the Federation before finally submitting that the Constitution does not vest power in the Nigeria Police Council to recruit constables. Learned Senior Counsel for the 1st Respondent therefore urged this Court to resolve these issues in favour of the Respondent against the Appellants.

DECISION/HELD:

The Supreme Court upheld the position taken by the Court of Appeal, and dismissed the appeal.

RATIO:

POLICE – NIGERIA POLICE FORCE: Powers of the Police Service Commission to appoint officers into the Nigerian Police Force except the office of the Inspector General of Police 

 “In the instant appeal, reference was made to several provisions of the Constitution, Police Act, and the Nigeria Police Regulations, 1968 made thereunder, the Police Service Commission (Establishment) Act, 2001. I believe, for ease of reference, it will be appropriate to reproduce the relevant provisions which both parties called in aid of their case right from the trial Court up to the instant appeal. I will start with the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 153(1) and (2) thereof provides: (1) “There shall be established for the Federation the following bodies, namely: (a) Code of Conduct Bureau; (b) Council of State; (c) Federal Character Commission; (d) Federal Civil Service Commission; (e) Federal Judicial Service Commission; (f) Independent National Electoral Commission; (g) National Defence Council; (h) National Economic Council; (i) National Judicial Council; (j) National Population Commission; (k) National Security Council; (l) National Police Council; (m) Police Service Commission; and (n) Revenue Mobilisation Allocation and Fiscal Commission. (2) The composition and powers of each bodies established by Subsection (1) of this Section are as contained in Part 1 of the Third Schedule to the Constitution.” From the above provision, it is clear that it is the Constitution of the Federal Republic of Nigeria that birthed the existence of the 1st Respondent, and a combined reading of Subsection (2) of Section 153 of the Constitution and Paragraph 30 of Part 1 of the Third Schedule to the Constitution, undoubtedly leaves no one in doubt that the 1st Respondent is statutorily empowered to “appoint persons to offices (other than office of Inspector General of Police)” in the 1st appellant. For ease of reference, Paragraph 30 of Part 1 of the Third Schedule to the Constitution provides as follows: “The Commission shall have power to – a. appoint persons to offices (other than office of the Inspector-General of Police) in the Nigeria Police Force; and b. dismiss and exercise disciplinary control over persons holding any office referred to in sub-paragraph (a) of this paragraph.” Still on the powers of the 1st Respondent, in giving effect to the above provision, the legislature enacted Police Service Commission (Establishment) Act, 2001 as a body corporate with perpetual succession. The powers and functions of the 1st Respondent are enumerated in Section 6 of the Police Service Commission (Establishment) Act, 2001, the section reads 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 policies 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 of the Nigeria Police Force; and f. 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.” Affirming the statutory powers of the 1st Respondent at the relevant time the 1st Respondent was established, and in order to also recognise/legitimize the status of officers appointed prior to the establishment of the 1st Respondent, the legislature introduced Section 24 of the Police Service Commission (Establishment) Act, 2001 which provides as follows: 24. “Any person who immediately before the coming into force of this Act is the holder of any office in the Nigeria Police Force shall on the commencement of this Act continue in office and be deemed to have been appointed to his office by the Commission under this Act.” As I said earlier, when a Court of law is faced with the interpretation of the clear provisions of the Constitution or a statute, its judicial inquiry ceases once it is determined that the said provisions are clear and unambiguous, and it is not the function of the Court to add or subtract or by any means whatsoever alter the provisions of the enactment. Therefore, for all intent and purposes, the status of the 1st Respondent as the appropriate body responsible for the “appointment” of officers into the 1st Appellant, save appointment to the office of the Inspector General of Police, under the legal regime in the aftermath of the Constitution (both the 1979 and the 1999), is undoubtedly that of the 1st Respondent.” Per ABUBAKAR, J.S.C.

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