Says Corporate Entity Which Employs More Than One Person As Security Guard Must Not Engage Private Guard Company –

Federal High Court sitting in Abuja, has barred the Nigerian Security and Civil Defence Corps (NSCDC) and the Minister of Interior from meddling into the affairs of organisations or establishment that employ its own security guards.

This is sequel to a suit no.FHC/ABJ/CS/1301/2019, filed by Reiz Continental Hotel against Nigerian Security and Civil Defence Corps (NSCDC) and the minister of Interior.

In a landmark judgment on June 8, 2020, Justice Taiwo O. Taiwo, ruled that any person or corporate entity who employs more than one person to secure its private property must not necessarily engage the services of a Private Guard Company, as canvassed by the NSCDC and Interior minister.

The suit is challenging the propriety of the NSCDC applying the provisions of the Private Guards Companies Regulations 2018 issued by the minister of Interior, particularly Section 23 of the Regulations to individuals, who are not Private Security Guard Companies contrary to Sections 1(1), 35 and 36(3) of the Private Guard Companies Act and Section 4 of the 1999 Constitution, as amended.

The crux of the case was whether the minister of Interior had the power to expand the scope of the application of the Private Security Guard Companies Act through subsidiary legislation, in this case, the Private Security Guard Companies Regulations 2018.

The NSCDC had written to the plaintiff, sometimes in September 2019, vide a letter entitled: “Illegal Operation of Unlicensed Security Companies”, wherein it alleged that the hotel contravened section 23 of the Private Guard Companies Regulations 2018 and by extension the Private Security Guard Companies Act, because it had employed more than two persons to guard its premises, which is a private property.

The NSCDC then ordered the hotel to within two weeks sack its employees and engage the services of a Private Security Guard Company to secure its private property. The NSCDC equally threatened to apply sanctions, by sealing the premises of the hotel and arresting the staff of the hotel, if they fail to comply.

The NSCDC based its order to seal the hotel and arrest the hotel’s employees on the fact that the hotel had employed more than one person as “security guard” to secure its premises and therefore ought to engage the services of a Private Security Guard Company in line with the Private Guard Companies Act and the Private Guard Companies Regulation 2018.

The hotel on the advice of its solicitors that the primary business of the hotel is hospitality and not private security business, therefore filed the suit which challenged the application of the Act and the 2018 Regulations to the hotel.

The court held that the intention of the legislature in drafting the Private Security Guard Companies Act was the regulation of the operations of Private Security Guard Companies, and further stated that Section 23 of the 2018 Regulations was not within the contemplation of the Act of the National Assembly with respect to the Private Security Guard Companies Act. That the minister of Interior in the exercise of his powers under Section 35 of the Act, does not have the power under the 1999 Constitution, as amended to expand the scope of the Act to include any person or corporate organisation, which does not operate as a Private Security Guard Company.

Furthermore, “ that the fact that any person or corporate entity employs two or more staff and cloths them to secure its private property without breaking any law, does not mean it is a private security guard company liable to the provisions of the Private Security Guard Companies Act and the Private Security Guard Companies Regulations 2018. Thus the Minister of Interior or officers acting on his behalf, including the NSCDC, do not have the power to enforce the said Section 23 of the Regulation by any means whatsoever against any person or corporate organisation which does not operate as a Private Security Guard Company,” the court emphasised.

In concluding, the court held that in the final analysis, section 23 of the Private Guards Companies Regulation 2018 was contrary to Sections 1(1), 35 and 36(3) of the Private Guard Companies Act and Section 4 of the 1999 Constitution, as amended, and to the extent of that inconsistency is ultra vires, null and void.

The court consequently struck down the said sections, thereby rendering the actions of the minister of Interior and officers acting on his behalf, in this case the NSCDC, in threatening to seal the premises of Reiz Continental Hotel and the arrest of the hotel’s security staff illegal.

Commenting on this matter, Chief Umeh Kalu, SAN, principal counsel of Seasons Law Firm, solicitors to the plaintiff Reiz, applauded the judgment, which he said was in tandem with all the relevant laws germane to the determination of the suit. He added that the judgment was another bold intervention by the judiciary to check the recklessness and excesses of some government agencies. He further said that if the NSCDC had succeeded in sealing Reiz Continental Hotel and indeed other hotels and business enterprise in the country as threatened, it would have gone a long way in stifling private businesses, which employ more than 50 per cent of the work force in the country.

Chief Umeh said it was baffling that while bigger economies, the world over are liberalizing their economies and encouraging private enterprise amongst its citizens, thereby providing a conducive environment for doing business, government agencies in our country are rather building barriers and frustrating private investors.

He then advised corporate bodies to be alive to their responsibilities to both the State and their organizations, by rising to the occasion when the expedient, to challenge certain policies and directives of government, its agencies and organs that may be inimical to their growth, especially when those policies affront the provisions of the 1999 Constitution, as amended, and extant laws.

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