CORAM

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Tunde Oyebanji Awotoye -Justice of the Court of Appeal

Kenneth Ikechukwu Amadi-Justice of the Court of Appeal

Abdu Dogo -Justice of the Court of Appeal

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PARTIES

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FIRST BANK OF NIGERIA PLC

APPELLANTS 

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1. OTUNBA OLUGBENGA DANIEL (ALSO KNOWN AS OTUNBA DANIEL (OGD)

2. COMRADE ABAYOMI

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, POLICE REGULATIONS, GENDER DISCRIMINATION, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This case revolves around the constitutionality of Regulations 126 and 127 of the Nigeria Police Regulations, which govern the conduct of female police officers concerning marriage and pregnancy. The Appellant (The Incorporated Trustees of Nigerian Bar Association) challenged these regulations, arguing that they violated Sections 37 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and various articles of the African Charter on Human and Peoples Rights. Regulation 127 provided that unmarried female police officers who become pregnant would be discharged, while married women could receive maternity leave under Regulation 126.

The Federal High Court dismissed the Appellant’s claims, holding that these regulations did not contravene the Constitution. Dissatisfied, the Appellant appealed, contending that the regulations were discriminatory and unconstitutional.

 

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HELD

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1. The appeal was allowed.

2. The court held that Regulations 126 and 127 of the Nigeria Police Regulations were inconsistent with the Constitution of the Federal Republic of Nigeria, specifically Sections 37 and 42, and were therefore null and void.

3. The decision of the Federal High Court was set aside, and the reliefs sought by the Appellant were granted.

4. Parties were ordered to bear their respective costs.

 

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ISSUES

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1. Whether the trial Court erred in failing to pronounce on the inconsistency of Regulations 126 and 127 with the Constitution and the African Charter on Human and Peoples Rights.?

2. Whether the trial Court erred in holding that granting the reliefs sought by the Appellant would lower the moral and professional standards of the Nigeria Police Force.?

 

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RATIONES DECIDENDI

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DISCRIMINATION BASED ON GENDER — WHETHER REGULATIONS 126 AND 127 VIOLATE THE CONSTITUTION:

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“The court held that Regulations 126 and 127, which impose restrictions on the reproductive rights of female police officers, are discriminatory and unconstitutional. Section 42 of the Constitution prohibits discrimination based on gender or circumstances of birth, and the said regulations violate this provision by discriminating against unmarried female officers while imposing no similar restrictions on their male counterparts.” — Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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RIGHT TO PRIVACY AND FAMILY LIFE — WHETHER THE REGULATIONS BREACH SECTION 37 OF THE CONSTITUTION:

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“The court ruled that Regulation 127 interferes with the privacy and family life of female officers by penalizing them for becoming pregnant while unmarried. This contravenes Section 37 of the Constitution, which guarantees the privacy of citizens. The police regulations should not intrude into the private lives of officers in this manner.”– Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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INCONSISTENCY OF POLICE REGULATIONS WITH THE AFRICAN CHARTER — WHETHER THE REGULATIONS VIOLATE INTERNATIONAL HUMAN RIGHTS LAW:

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“The court found that Regulations 126 and 127 also contravened Articles 2, 3, 5, 18, and 19 of the African Charter on Human and Peoples Rights, which Nigeria has ratified.

These provisions protect against discrimination and guarantee equality before the law.”– Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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VALIDITY OF REGULATION 127 — WHETHER THE REGULATION CAN BE JUSTIFIED ON GROUNDS OF PUBLIC MORALITY AND ORDER:

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“The trial court’s argument that Regulation 127 was necessary to maintain public morality and order was rejected. The court ruled that morality and discipline do not have a gender bias and that female police officers cannot be subjected to different standards based solely on their gender.”– Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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APPLICATION OF SECTION 42 OF THE CONSTITUTION — WHETHER THE REGULATIONS DISCRIMINATE BASED ON GENDER:

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“The court emphasized that Section 42 of the Constitution unequivocally forbids discrimination on the basis of gender. Regulations that impose restrictions on one gender, while exempting the other from similar obligations, clearly violate the equality provisions of the Constitution.”– Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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CONSENT TO POLICE REGULATIONS — WHETHER FEMALE POLICE OFFICERS WAIVE THEIR RIGHTS BY JOINING THE FORCE:

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“The argument that female police officers, by consenting to the regulations upon enlistment, cannot challenge them was dismissed. The court ruled that constitutional rights, particularly those protecting against discrimination, cannot be waived.” — Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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PUBLIC MORALITY AND DISCIPLINE — WHETHER DISCIPLINE CAN JUSTIFY DISCRIMINATORY REGULATIONS:

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“The court held that the argument that Regulations 126 and 127 were necessary for maintaining discipline within the police force was flawed.

Discipline and morality are not issues that should be gender-based, and the regulations unfairly target female officers while leaving male officers unaffected.”– Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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APPELLATE COURT’S POWER TO SET ASIDE UNCONSTITUTIONAL REGULATIONS:

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“The court held that its duty is to uphold the Constitution, and any regulation or law that contravenes the Constitution must be struck down. Accordingly, Regulations 126 and 127 were declared null and void to the extent of their inconsistency with the Constitution.” — Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

 

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EXTENSION OF TIME – REQUIREMENTS FOR GRANTING EXTENSION OF TIME TO APPEAL:

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“It is trite that, an applicant for extension of time to appeal must satisfy two basic conditions as stated by Order 6 Rule 9 (2) of the Court of Appeal Rules. The applicant must give good and substantial reason for failure to appeal within the prescribed period and the proposed grounds of appeal must prima facie show good cause why the appeal should be heard.”– Per ABDU DOGO, JCA

 

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MISTAKE OF COUNSEL – WHETHER MISTAKE OF COUNSEL CONSTITUTES GOOD REASON FOR EXTENSION OF TIME:

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“Indeed, this development leaves a lot to be desired, but it clearly shows the Applicant’s desire to exercise its right of appeal against the said decision. The Applicant, in my view is not to be blamed for the lapses, perhaps its counsel is to be blamed. In the circumstances, it will not be in the interest of justice to deny the Applicant its right of appeal because of the mistakes of its counsel.” — Per ABDU DOGO, JCA

 

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RIGHT OF APPEAL – WHETHER LEAVE IS REQUIRED FOR APPEALING AGAINST A FINAL DECISION:

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“It is trite that where the decision that is sought to be appealed against is a final decision, there is right of appeal without the necessity of first asking the leave of the trial Court or this Court. See Section 241(1)(a) of the Constitution, which provides thus: 241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases – (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance …” — Per ABDU DOGO, JCA

 

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GARNISHEE ORDER ABSOLUTE – WHETHER A GARNISHEE ORDER ABSOLUTE IS A FINAL DECISION:

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“The decision sought to be appealed against by the applicant is the decision of the lower Court making the order nisi in a garnishee proceeding absolute. It is trite that such a decision is a final decision as far as the garnishee proceeding is concerned.

See the case of FBN V. Jacob Agidi (Nig.) Ltd (2018) LPELR-44997 (CA) PP. 12-17, paras E-C, and UBN V. Boney Marcus Ind. Ltd & Ors (2005) LPELR-3394 (SC) PP. 9-11, paras A-A.” — Per ABDU DOGO, JCA

 

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SUBSTANTIAL JUSTICE OVER TECHNICALITY – COURT’S ATTITUDE TOWARDS TECHNICAL ERRORS:

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“The attitude of the Court is now to lean towards doing substantial justice in every case as much as possible and lawful as against adherence to technicality. — Per ABDU DOGO, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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 Constitution of the Federal Republic of Nigeria 1999 (as amended)

 Police Act 2020

 African Charter on Human and Peoples' Rights (Ratification and Enforcement)

Act (Cap A9) LFN 2004

 Equality Act 2010 (United Kingdom)

 Sex Discrimination Act of Australia 1984

 Court of Appeal Rules, 2021

 

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CLICK HERE TO READ FULL JUDGMENT

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