The nature of employment of Supernumerary Policemen and other matters arising from the yet-to-be-reported Supreme Court’s decision in Mobil Producing Nigeria Unlimited v Okon Johnson & Ors. By Olumide Babalola

In the wake of the Supreme Court’s delivery of judgement in Mobil Producing Nigeria Unlimited v Johnson & Ors. Appeal No. SC/33/2010 on Friday, 20th day of April 2018, the leaders of Employment Labour Law Association of Nigeria (ELLAN) – a virtual (at least, for the moment) think tank on labour and employment law matters instructed me to analyse/report the said decision in the light of several issues that seemed to have been superficially raised by the various newspaper headlines, most of which described Okon Johnson and his colleagues as “police officers” in their reports. It is almost impossible to appreciate the decision under review without flipping through the facts which are not so contentious since the parties’ points of contention are documents-based as gleaned from the record of the court as follows: Sometime in 1996, the appellant (Mobil) made an advertisement for recruitment of spy policemen into its security unit for the purpose of securing its properties; Okon Johnson and 832 others (the respondents) were selected for interview after they had passed the qualifying exams conducted by Mobil. Upon their success at the interview, the respondents were offered employment into Mobil’s security unit as “spy police constables” with their salaries as determined by Mobil as contained in their identical letters of employment. The respondents were consequently sent to the Nigeria Police Force for training on basic guard duties, issued certificates of participation and they subsequently resumed their duties of securing the appellant’s properties. Trouble started when Mobil wrote to the Commissioner of Police in Akwa Ibom State to absorb the respondents into his supernumerary police outfit albeit, without the respondents’ knowledge as well as that of the Inspector General of Police and Nigeria Police Council. When the Commissioner transferred the respondents from one state to another, they protested and kicked against the transfer on the ground that they were not employees of the Nigerian Police Force but that of Mobil. The parties’ relationship however broke down irretrievably when Mobil attempted transferring the services/employment of the respondents to the Nigeria Police Force which attempt was vehemently protested by Okon Johnson and his colleagues but Mobil insisted that they were employees of the Nigeria Police Force. Consequently, in May 2009, the 1st to 15th respondents (in a representative capacity) approached the Federal High Court sitting in Uyo for several reliefs bordering on their status as Mobil’s staff, their nomenclature as “supernumerary police officers”, issue of transfer, entitlements and emoluments, reinstatement with full benefits etc. Before delving into the court’s rationes decidendi, I found some portion of the judgement very significant and thought-provoking: First, as seen at page 13 of the leading judgement, by relief number 9(b) claimed at the trial court, the respondents would rather be referred to as “guards” as opposed to “policemen” or “members of staff of Nigeria Police” which they claimed was derogatory. For the umpteenth time, it must be reiterated that, our police force needs a complete overhaul and fundamental reforms to make it attractive, if ever, again. Second, at page 58, Kayode Sofola, SAN – the soft spoken erudite learned silk however made a fantastic submission which has the tendency of embellishing our jurisprudence had the apex court ruled on it. The learned silk opined that: “while ignorance of the law is no defence in criminal law, it can afford an excuse in civil law” Alas! my lords did not take any position on such far-reaching submission thereby confining same to the mounting heap of legally moot topics. Third, at page 48, the court, per Inyang Okoro, JSC alluded to the inconsistency of the Force Order but did not specifically state the provision that is inconsistent and thereby rendered null and void, again, we are left at the mercy of speculative submissions in this regard. Fourth, the pre-eminent and unparalleled role of lawyers in recruitment process of corporations, especially the large ones, can never be overemphasised as the apex court noted at page 68 of the judgement thus: “the appellant is a big company with one of the best legal departments available. The Nigeria police also has a robust legal department. Why was it not necessary for the two organizations to consult their legal departments before messing up the entire process?” Ultimately, at pages 69 and 70, it appears that the scenario in this case is not new to Mobil as my lord, Inyang Okoro, JSC berated them and the Inspector General of Police thus: “I am surprised that the appellant and indeed the Inspector General of Police in a sister appeal, after they clearly breached section 18(1) and (2) of the Police Act are still pursuing this appeal. In other climes, they would bury their head in shame and allow sleeping dogs lie.” And now to the crux of the decision which I shall quote verbatim as follows: On the process of appointing supernumerary police officers: “From the above provisions (section 18(1) and (2) of the Police Act), the process of appointing a supernumerary police officer may be summarized as follows: (1)An application by a person who desires the services of supernumerary police officer to the inspector general of police; (2) on receipt of the application, the IGP may, with the approval of the president, direct the appropriate authority to appoint such number of persons as supernumerary police officers as the IGP 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 IGP, also to the accountant general.” (page 38 – 39) On who is the appropriate authority to appoint supernumerary police officers: “By section 22(4) of the Police Act, “appropriate authority” as used in sections 18(2) ….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.” (page 39-40) On the law/provision that must be considered in determining whether a person has been duly appointed as supernumerary police officer: “The main thrust of the appellant’s argument in this issue relates to the failure of the court below to consider the Force Administrative Instruction/Force Order before it determined who is a supernumerary police officer… as was pointed out by both parties in their respective briefs of argument, the issue of appointment into the supernumerary police force is governed primarily by sections 18 -22 of the Police Act. Such appointment is regulated by statute and must be seen as such….it follows that, in considering whether the 1st – 15th Respondents were appointed as supernumerary police officers, it is the provision in section 18 -22 of the Police Act that must be considered….Let me state clearly that the Force Administrative Instruction/Force Order is a subsidiary or subordinate legislation and its provision must be consistent with the principal legislation from which it derives its life…Any provision or directive of the Force Order which is inconsistent with the Principal Act is to the extent of its inconsistency null and void. ”(Pages 36, 37, 40, 47 and 48) On whether Okon Johnson and his colleagues were properly appointed as supernumerary police officers: “As rightly pointed out by the court below, there is nothing on record to show that the appellant ever applied to the IGP in accordance with section 18(1) of the Police Act of its desire to have the services of supernumerary police officers. Neither is there evidence of any approval by the President to that effect. There is yet no evidence of directive by the IGP to the “appropriate authority” to appoint these officers. More so, the appellant failed to show evidence of the payment of cost of uniform to the Accountant General including the quarterly payment of salaries of the respondents. Contrary to the provisions of the Police Act, evidence on record shows that the respondents were recruited and/or employed by the appellant under the common law…These evidence clearly show that the interview of the respondents and their appointment letters were issued and signed by the appellant… The appellant herein is not the appropriate authority empowered to appoint supernumerary police officers. It is the Police Service Commission. Nowhere in the Act is the appellant empowered to test, interview and issue appointment letters to persons seeking to become supernumerary police officers. (page 41 -42) On whether Okon Johnson and his colleagues were employees of the Nigeria Police Force: “I agree with the well-reasoned position taken by the court below. The 1st to 15th respondents were never appointed supernumerary police officers in accordance with the Police Act…Clearly, the were not appointed by the Police Service Commission and as such, they cannot be employees of the Nigeria Police Force. They are employees of the appellant…Again, I agree without any hesitation whatsoever. The truth is that the Police Service Commission had no hand in the employment of the 1st – 15th respondents. How can they be supernumerary police officers under the Police Act” (page 44 and 47) On whether existing policemen are eligible for appointment as supernumerary police officers: “The statement by the court below to the effect that only already employed police officers can be eligible for appointment into the supernumerary police force cannot be true having regard to the fact that there is no such provision in the Police Act. The provision of section 18(1) that any person (including any government department) who desires to avail himself of the services of one or more “police officers” does not mean that those appointed supernumerary police officers must be serving police officers. That is why in section 18(2), it is clearly stated that, on an application under subsection (1), the IGP may, with approval of the President direct the appropriate authority to appoint as supernumerary police officers such number of persons as the IGP thinks requisite for the protection of the property to which the application relates. That provision does not suggest that the appointment must be made from existing police officers… supernumerary police officers are not to be appointed from already serving police officers.” (Pages 51 and 53) On whether the appointment of a supernumerary police officer is pensionable and permanent: “Appointment of police officers in the force is permanent and pensionable whereas that of supernumerary police officers is of a temporary arrangement and is not pensionable. They serve from month to month as prescribed in section 22(1) of the Police Act, their ranks are restricted, they are disentitled from the police reward fund and they are restricted to the police area to which they are assigned…. I do not think anybody would like tike to leave the regular, permanent and more rewarding police force to a temporary, restrictive supernumerary police arrangement.” (pages 52 and 53) On meaning/connotation and supernumerary and supernumerary police officers: “The word ‘supernumerary’ means beyond the number. Therefore, supernumerary police officers are police officers beyond the regular number of the police force.” (Page 53) On the authority saddled with the responsibility of appointment and training of supernumerary police officers: “The appointment and training of supernumerary police officers is the responsibility of the Police Service Commission as directed by the IGP. It is after their appointment that the appellant is to pay to the accountant general such monies as would be required for their uniform and quarterly payments also the accountant general.” (Page 66) On what confers the status of supernumerary police officer: “As was observed by the court below at page 953 of the record of appeal: “undoubtedly, the hood does not make the monk. The fact that the appellants were described as Spy Police Mobil Producing Nigeria and were adorned with the Nigeria Police uniforms and other paraphernalia cannot make them Nigerian policemen.” They (Mobil) ought to know that what confers the status of supernumerary police officer on a person is not the wearing of uniform or being called policemen, it is in the process of his recruitment, whether same was done in line with the provision of statute establishing or creating the force. (Page69 – 70) On whether Mobil can transfer its security/policemen: “The only observation I wish to make is that the appellant has unfettered right to transfer the 1st – 15th respondent to any area of its operation because, their employment is not regulated by the Police Act which forbids supernumerary police officers from being transferred away from the area of the police province or police district or police division in which the property of the appellant is situated and for which each security personnel was appointed to protect.” (Page 74) On the whole, the judgement of the Court of Appeal (reported at (2010) 7 NWLR (Pt. 1194) and at page 93 of my Casebook on Labour and Employment Law published in 2014) setting aside the transfer of Okon Johnson and his brothers to the service of the Nigeria Police and reinstating them to the service of Mobil Producing Nigeria Unlimited was affirmed by the Supreme Court with some corrections. Olumide Babalola, managing partner, Olumide Babalola LP, writes from Lagos.]]>