Mohammed Lawal Garba JSC
Helen Moronkeji Ogunwumiju JSC
Ibrahim Mohammed Musa Saulawa JSC
Adamu Jauro JSC
Tijjani Abubakar JSC
APPELLANTS
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, EVIDENCE, NIGERIA POLICE FORCE, PRACTICE AND PROCEDURE
The President of the Federal Republic of Nigeria approved the enlistment of 10,000 recruit constables or lower cadre police officers by the 1st Appellant and this birthed hostilities and tussle between the Appellant and the 1 st Respondent. Series of attempts were initiated towards amicable resolution of the dispute but it proved abortive and led to the action at the trial Court by the Respondent. The main question to be determined was 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 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.
The Appellant was dissatisfied by the decision hence the instant appeal.
Appeal dismissed/allowed
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?
The duty of the Court to interpret the relevant provisions of the Constitution and determine the intention of the legislature is a fundamental aspect of constitutional jurisprudence. It involves the application of legal principles and techniques to ascertain the meaning and purpose behind constitutional provisions, particularly those enacted by the legislature. The primary approach that has been adopted by the Courts in the interpretation of the Constitution is known as originalism or textualism, which emphasizes interpreting constitutional provisions according to their original public meaning at the time they were adopted. In most cases, the intention of the legislature can be discerned from the text itself, as well as the historical context surrounding its adoption. This approach seeks to limit judicial discretion and promote stability and predictability in the interpretation of the Constitution. Although there are other recognized rules of interpretation of statutes, the golden rule remains that every statute is to be expounded according to its manifest and express intention.
See IBRAHIM Vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) LPELR-1408 (SC). Therefore, as this Court, per WALI, JSC held in ADEWUMI vs. A.G. EKITI STATE[2002] 2 NWLR (Pt. 751) 474 at 512, that in cases of statutory construction, the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there. It is not within the judicial powers of a Court to move outside the domain of a clear provision of the Constitution or statute. Put simply, where provision of a statute is unambiguous, the duty of the Court is to interpret the clear provision by giving the plain wordings their natural and ordinary interpretation without more. See AMAECHI Vs. INEC [2008] 5 NWLR (PT 1080) 227; (2008) LPELR – 446 (SC), AC & ANOR vs. INEC [2007] 12 NWLR (PT 1048) 220; (2007) LPELR – 66 (SC) pp 41 – 42, paras G – A. – Per Tijjani Abubakar, JSC
…the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 153(1) and (2) thereof…
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…
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… – Per Tijjani Abubakar, JSC
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:
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 Tijjani Abubakar, JSC
I must quickly mention that, under Cap 359, the statutory powers relating to appointment, promotion, transfer, dismissal and disciplinary control of officer in the 1st Appellant, was hitherto reserved for the Nigeria Police Council but with the advent of the extant Constitution, the said powers have not been constitutionally conferred upon the 1st Respondent. My reference to Cap 359, LFN 1990 here is deliberate because, from careful comparison of the similar provision of Section 46(b) of the Police Act, Cap P19, LFN, 2004, it will appear that the relevant provisions (including Section 46(b), 47(1) (b) and (2)) of Cap P19 have been ostensibly altered to reflect the 1st Respondent in line with its constitutional mandate, but this alteration, in the absence of an amendment of Cap 359, was not obviously carried out by the legislature or the competent authority. – Per Tijjani Abubakar, JSC
…Nigeria Police Regulations, 1968… Regulation 71… Without seeking aid or guidance from anywhere else, the above provision is in my view very clear and devoid of any ambiguity; the President, by the above Regulations had designated the respective Commandant of the Police Colleges at the relevant time as the recruitment officers for the enlistment of constables. Even though the exercise of such power was subject to the control of the 2nd Appellant, the Inspector-General of Police, the power of enlistment nonetheless resided in the respective Commandants and not the 2nd Appellant, as alleged by the learned Senior Counsel for the Appellants. In any event, even if it is determined that the exercise of control by the Inspector-General under Regulation 71, the relevant question will be, whether this provision will stand in the face of the provisions of Paragraph 30 of Part 1 of the Third Schedule to the Constitution and the establishment and powers of the 1st Respondent under the Police Service Commission (Establishment) Act, 2001. – Per Tijjani Abubakar, JSC
…the definition of the word ‘recruitment’ contained in Chapter 2, Section 2, Number 020201 of the Public Service Rules, 2008 Edition, which reads: “recruitment: means the filling of vacancies by the appointment of persons not already in the Public Service of the Federal Republic of Nigeria. It however excludes the transfer of officers from other Public Service in the Federal Public Service. – Per Tijjani Abubakar, JSC
Chapter 1, Section 1, Number 010101 of the Public Service Rules (2008 Edition)… It is beyond dispute that by the above provisions, the Public Service Rules apply to the 1st appellant, which is specifically listed, and if the phrase “and any other similar organs that derive their appointments from the Constitution of the Federal Republic of Nigeria” is countenanced, and the provision of Section 214(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which establishes the Nigeria Police Force and 318 of the Constitution which defines “public service of the Federation” is countenanced, one will be left with no other option than to agree with the Court below that the Public Service Rules apply to the 1st Appellant. – Per Tijjani Abubakar, JSC
Section 318(1) of the Constitution defines public service of the federation as follows:
“(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires –
“Public service of the Federation" means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as –
I have no reason to interfere with the reliance by the lower Court on the decision of this Court in TABIK INVESTMENT LTD & ANOR Vs. GTB PLC (Supra), where this Court, while determining the question as to whether the 1st Appellant is a public officer, referred to the provisions of Section 318 of the Constitution on the meaning of public service and Section 18 of the Interpretation Act, Cap. 192 Laws of the Federation, 1990 to reach the conclusion that “a police officer is a public officer, and so all documents from the custody of the police, especially documents to be used in Court are public documents”. By parity of reasoning, the 1st Appellant, whose officers are regarded as public officers, and who, by the provision of the Constitution forms part of the public service of the Federation, cannot somersault by asserting that the Public Service Rules (2008 Edition) which was made to cater for members of the public service (also regarded as public officers) does not apply to it. – Per Tijjani Abubakar, JSC
It is enlightening that Section 2 of the Police Act defines a “police officer” to mean “any member of the force” and “constable” is defined to mean ‘any police officer below the rank of corporal’ Therefore, the power of the 1st Respondent to appoint officers into the Nigeria Police Force (except for the 2nd Appellant) also includes the power to recruit. Put simply, recruitment and appointment, for the purpose of employing personnel into the 1st Appellant, are one and the same thing. – Per Tijjani Abubakar, JSC
The 1st Respondent, being an independent government agency established under Section 153(1) of the Constitution, has its powers clearly spelt out. Its primary function is to oversee the recruitment, appointment, promotion, and discipline of police officers, including constables, in the Nigeria Police Force. The Constitution is a living document, intended to adapt and respond to societal changes and developments over time. The Court, therefore, has the duty to interpret the Constitution dynamically, considering its original intent, the evolving needs of the society, and the aspirations of the people. In my humble understanding therefore, appointment includes the recruitment processes which involves advertising vacancies, receiving applications, conducting aptitude tests, physical examinations, and interviews to assess the suitability of candidates. Clearly, part of the 1st Respondent’s mandate is to ensure that recruitment into the 1st Appellant is conducted in accordance with established guidelines. By this token therefore, Section 6(1)(c) of the Police Service Commission (Establishment) Act 2001 empowers the 1st Respondent to “formulate policies and guidelines for the appointment, promotion, discipline and dismissal of officers of the Nigeria Police Force”. Therefore, it cannot be reasonable to say that the 1st Respondent’s power does not extend to recruitment of constables. – Per Tijjani Abubakar, JSC
Section 14 of the Police Act, is without doubt, clear on the fact that enlistment takes place after the appointment of a constable. The Section provides:
“14. Every constable shall, on appointment, be enlisted to serve in the Force, for three years, or for such other period as may be fixed by the Nigeria Police Council to be reckoned in all cases from the day on which he has been approved for service and taken on to strength.”– Per Tijjani Abubakar, JSC
…Furthermore, Regulation 73 provides for the conditions that shall be a bar to enlistment and states that a candidate for enlistment suffering from specified deformities and abnormalities shall not be accepted for enlistment; Regulation 73 states that “a candidate for enlistment in the Force shall, except as hereinafter provided, be required to obtain a pass in the entrance examination prescribed for recruit constables”. Now, Regulations 76 – 82 deal with the enlistment procedure. By Regulation 76, “an intending candidate for the enlistment in the Force is required to apply in the first instance to the Police Area Commander in charge of the area command in which the applicant resides, for a copy of the prescribed Application to Enlist Form, which shall be completed by the applicant and returned to the Police Area Command”. After a candidate has obtained, filled the prescribed application form and submitted same to the Police Area Commander, Regulation 78 mandates the Police Area Commander, where he considers the information in the application form to be satisfactory and vacancies exist in the 1st Appellant at the relevant time, to arrange to interview the applicant. Where the Police Area Commander is satisfied after the interview, that an applicant is suitable for consideration for an enlistment, Regulation 81 provides that he shall then forward the candidate’s Application to Enlist Form to the appropriate recruitment officer. It will be recalled that recruitment officers are defined under Regulation 71, which the Appellants relied upon, as the Commandants of the respective Police Colleges in Ikeja (for the South) and Kaduna (for the North). Thereafter, by Regulations 83 – 99, entrance examination for applicants for enlistment shall be held by the Police Area Commanders and it is only successful candidates that are selected by the relevant recruitment officers and approved for service as recruit constable. On the other hand, Regulations 100 – 102 deal with procedure on rejection of candidate, whereas Regulations 103 – 104 relate to training of recruit constables. By the clear provisions of Regulations 105 – 106, the formal appointment of a recruit constable can only take place after his/her training and thereafter the record of appointment is then endorsed on the prescribed Application to Enlist Form.
…The above referenced Regulations clearly manifested the intention of its maker to enumerate the processes involved in the appointment of constables – from the application stage up to the appointment stage before the qualified constables are then enlisted. Any person, guided by the substantive provision of Section 14 of the Police Act and relevant provisions of the Nigeria Police Regulations 1968 enumerated above, should not be left in any form of doubt that formal appointment of a constable into the 1st Respondent takes place before he/she is enlisted. In other words, any person aspiring to become a constable in the Nigeria Police Force, is by the clear and unambiguous provisions of the Nigeria Police Force, expected to be appointed by the relevant recruitment officers before the record of his appointment is endorsed on the prescribed Application for Enlistment Form. Any contrary interpretation of the said provisions will not only result in manifest absurdity and ambiguity but also result in a decision that the provisions of the Nigeria Police Regulations, 1968 is in conflict with Section 14 of the Police Act, which prescribes that appointment takes place before enlistment. As TOBI, JSC (of blessed memory) aptly said in KRAUS THOMPSON ORG. v. N.I.P.S.S [2004] 17 NWLR (PT 901) 44; (2004) LPELR-171 (SC) pp. 11 – 12, paras G – B, it is not the function of a Court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the function of the Court but that of the legislature or competent authority. – Per Tijjani Abubakar, JSC
Let me quickly add that the powers to appoint constables which was hitherto conferred upon the commandant of the respective Police Colleges (albeit under the control of the 2nd Appellant) under the Nigeria Police Regulations, 1968, has now been conferred on the 1st Respondent, who has a more wider power to appoint not only constables but other officers of the 1st Appellant (except the Inspector General of Police) by virtue of Paragraph 30 of Part 1 of the Third Schedule to the Constitution and Section 6(1)(a) of the Police Service Commission (Establishment) Act, 2001. On a related note, it is clear to me that the power of appointment was hitherto conferred on the Nigeria Police Council under Section 9(2)(b) of the Police Act, Cap 359, and which was delegated to the recruitment officers (the Commandants of the respective Police Colleges) by virtue of the Nigeria Police Regulations, 1968 (Regulations 71), can only be exercised by the 1st Respondent in view of the provision of Paragraph 30, Part 1 of the Third Schedule to the Constitution and Section 6 of the Police Service Commission (Establishment) Act, 2001. – Per Tijjani Abubakar, JSC
The provisions of the Nigeria Police Regulations, 1968 must be construed in such a manner as to bring them into conformity with the Constitution. Where this cannot be achieved, the only option will be to declare the relevant Regulations, null and void to the extent of its inconsistency, in line with the clear provisions of Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The law is firmly settled that any law enacted before the coming into force of the Constitution, which is in conflict or contradicts the provisions of the Constitution, must either be modified or repealed as required by Section 315 of the Constitution, where the National Assembly has neither modified nor repealed the Act same must be declared unconstitutional. See IKINE V. EDJERODE(2001) 18 NWLR (Pt. 745)) 446. Since the 1st Respondent is now statutorily empowered to replace the Nigeria Police Council and has by the clear provisions of the Constitution been endowed with the power to appoint hitherto reserved for the Nigeria Police Council, it follows that any provisions of the Nigeria Police Regulations, 1968 made by the President pursuant to the recommendations of the Nigeria Police Council, which overlaps and are inconsistent with the provisions of the Constitution which empowers the 1st Respondent to appoint officers including constables (and except the Inspector General of Police) shall, to the extent of their inconsistencies, be declared null and void.
In Nigeria, the Constitution is the supreme law, the fundamental legal order of State – the grund norm; it is the organic or fundamental law from which other laws or actions of government, either executive, legislative, or judicial derive their legitimacy. Both the Police Act (and the Regulations made thereunder) and the Police Service Commission (Establishment) Act, derive their validity and legitimacy from the Constitution. I say it again, the Constitution is the grund norm, the fons et origo. Consequently, any action purportedly taken by the 2nd Appellant, in this case the purported recruitment of constables, which infringes or runs contrary to the provisions of Paragraph 30 of Part 1 of the Third Schedule to the Constitution is void ab initio.
See Section 1(1) and (3) of the Constitution and the recent decision of this Court, per EKO, JSC, in UDEOGU vs. FRN & ORS (2020) LPELR – 57034 (SC). – Per Tijjani Abubakar, JSC
Section 1 of the Constitution is emphatic on the position that if any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. See THE ATTORNEY GENERAL OF THE FEDERATION V. THE ATTORNEY GENERAL OF LAGOS STATE (2013) 16 NWLR (Pt. 1380) 249 at 329, where I.T. MOHAMMED, JSC (Later CJN) said as follows:
“In asserting its supremacy, the Constitution, in Section 1(3) provides that:
“If any law is inconsistent with the provisions of the Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.
‘Inconsistency’ in law to me can be taken to be a situation where two or more laws, enactments and or rules are mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other. It is thus, a situation where the two or more enactments cannot function together simultaneously. The Constitution does not tolerate that.
In Ishola v. Ajiboye (1994) 7-8- SCN (Pt. 1) 1 (1994) 6 NWLR (Pt. 352) 506, this Court held that the Constitution is not only supreme when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the Constitution”. – Per Tijjani Abubakar, JSC
Section 19 of the Police Service Commission (Establishment) Act, 2001, on the peculiar facts of the instant case. The said section provides:
“19. Subject to the provision of this Act, the President may give to the Commission directives of a general nature or relating generally to matters of policy with regard to the performance of the Commission of its functions and it shall be the duty of the Commission to comply with the directives.”
I do not think the above provision gives the President a blanket and unlimited and open ended power over the 1st Respondent in the exercise of the 1st Respondent’s constitutionally donated powers and functions. The above provision cannot, in my view be adopted to curtail the powers donated to the 1st Respondent by the Constitution and its establishment Act. A fortiori, the provision specifically limits the nature of the directives that may be given by the President and which the 1st Respondent is mandated to comply with, to such directives of a general nature and relating to matters of policy in relation to the performance of the 1st Respondent’s functions. I share the same views with the Court below that the power(s) donated to the President to give directives given to the 1st Respondent have nothing to do with the express powers given to the 1st Respondent under the Constitution to appoint persons into offices (other than the Inspector General of Police) in the Nigeria Police Force. As a matter of law, the President’s power under Section 19 of the Police Service Commission (Establishment) Act, 2001 cannot override the express powers of the 1st Respondent enumerated under Paragraph 30, Part 1 of the Third Schedule to the Constitution. A fortiori, Section 19 is clearly subservient or subordinated to the express provision of the Constitution. In other words, and particularly as it relates to the case at hand, the President, cannot in the guise of giving directive to the 1st Respondent, pursuant to Section 19 of the Police Service Commission (Establishment) Act, 2001, circumvent the express provisions of the Constitution. The President cannot by the said directive supplant the statutory authority that has been conferred on the 1st Respondent, a statutory body. I am therefore of the view that any purported exercise of the President’s power(s) under Section 19 of the Police Service Commission (Establishment) Act, which interferes with the exercise of the constitutionally endowed powers of the 1st Respondent, cannot stand. The President has no powers pursuant to Section 19 of the Police Service Commission (Establishment) Act and even Section 5 of the Constitution to issue a directive that is contrary to a law validly made by the National Assembly since the executive powers of the President under Section 5 of the Constitution are to administratively implement laws made by the National Assembly. – Per Tijjani Abubakar, JSC
Alteration of an enactment can only be done by the legislature, in a democratic setting or the competent authority, in other cases like under the military regime. By Section 4 of the Constitution, the legislative powers of the Federal Republic of Nigeria are vested in a National Assembly for the Federation. See OLAFISOYE v. FRN (2004) LPELR – 2553 (SC). Therefore, only the National Assembly can legislate to alter the relevant provisions of the Police Act.
…while it is within the powers of the National Assembly to make laws for the order and good Government in Nigeria, a legislation during litigation purposely made the legislation to meet the demands of power gourmets in flagrant disregard to the provisions of the Constitution. Any legislation made during litigation in contravention of the Constitution and enacted to steal a match against a litigant will be condemned and declared null and void. Section 18 of the Police Act 2020 is obviously unconstitutional and must be declared null and void, it is so declared. – Per Tijjani Abubakar, JSC
The provisions of the Constitution are not only superior to, but supreme, over all other Laws, Statutes, Rules, Subsidiary/secondary Legislations/Regulations and so take precedence and supercede such other laws, statutes, rules or regulations, etc, on any particular subject matter provided for therein. As the foundation of all laws in the country, the Constitution in Section 1(1) and (3) has declared and proclaim itself ‘Supreme’and its provisions to have binding force on all authorities and persons throughout Nigeria and that if any law is inconsistent with its provisions, such other Law, statute, rules or regulations shall be void to the extent of its inconsistency. See N. U. E. E. v. B. P. E. (2010) 7 NWLR (pt. 1194) 538 (SC) 1, Kayili v. Yilbuk (2015) 7 NWLR (pt. 1457) 26 (SC), Gov., Ekiti State v. Olubunmo (2017) 3 NWLR (pt. 1551) 1 (SC), Saleh v. Abah (2017) 12 NWLR (pt. 1578) 100 (SC), Agi v. PDP (2017) 17 NWLR (pt. 1595) 386 (SC). – Per M. L. Garba, JSC
Chapter 2, Section 2, Number 020201 of the PUBLIC SERVICE RULES (2008) provides definition of the word ‘recruitment’ as follows:
“0202001 ‘Recruitment’ means the filling of vacancies by the appointment of persons not already in the Public Service of the Federal Republic of Nigeria. It, however, excludes the transfer of officers from other Public Service in the Federal Public Service”
Obviously, the position of the Appellant is inconsistent with the decision of this Court in MATTHEW IYEKE & ORS v. PETROLEUM TRAINING INSTITUTE (supra) where this Court held as follows while defining the word “recruit” “In this case, the Hon. Minister of Labour and Productivity appointed a conciliator to resolve the Trade Dispute between the appellants, who were described as ‘newly recruited staff of first respondent, and the first respondent itself. The word ‘recruit’ means ‘to hire or enroll or seek to hire or enroll (new employees, students, etc) – the freedictionery.com”. – Per H. M. Ogunwumiju, JSC
It is trite that previous statutes promulgated prior to the grundnorm can only take effect with such modifications that bring them into conformity with the CFRN 1999 (as altered). Thus where there is a sharp irreconcilable conflict between the provisions of an Act, and the Constitution, those provisions are void and must be struck down. Consequently all the sections of the Police Regulations 1968 which purport to vest power of enlistment of recruit constables into the Nigeria Police Force in the 2nd Appellant are void. – Per H. M. Ogunwumiju, JSC
It is important to note that everyone in the Nigeria Police Force is referred to as an officer, meaning, the holder of an office. For instance, under Section 141, a constable is defined as anypolice officer below the rank of Corporal I am of the view that in so far as Paragraph 30 (a) & (b) of Part 1 of the 3rd Schedule to the Constitution has not made a dichotomy in what constitutes a lower office(r) (rank and file), constable, e.t.c and a superior office(r) of a certain rank and refers to every public servant in the Nigeria Police as an ‘officer’ then the 1st Respondent is entitled to recruit and subsequently appoint such persons to all offices in the Nigeria Police Force other than the rank of the IGP. – Per H. M. Ogunwumiju, JSC
The term ‘recruit’ invariably denotes a new member of an organization, team or group of people, especially as the result of formally joining; it equally denotes someone who has recently enlisted in the armed forces. See BLACK’S Law Dictionary 11th edition 2019 at 1528. – Per I M. M. Saulawa, JSC
The issue in the instant case is a crystal clear of law as provided in Section 153 (1) (m) of the 1999 Constitution and paragraph 30 of the Third Schedule to the said Constitution. Being so unequivocally clear, those provision must be 'accorded the literal, plain and unambiguous interpretation so as not to defeat the laudable object of the legislature. See AQUA LTD VS. ONDO STATE SPORT COUNCIL (1988) 4 NWLR (pt. 91) 622, FAWEHINMI VS. IGP (2000) NWLR (pt. 665) 481, AWOLOWO VS. SHAGARI (1979) 6-9 SC 57, ALAMIEYESEIGHA V. FRN (2006) 16 NWLR (pt. 1004) 1. As aptly reiterated by thus Court in AG OGUN STATE VS. ABERUAGBA (1985) NWLR (pt 395):
“In the interpretation of statutes, the ordinary literal meaning must be examined, if the words are clear and unambiguous then the ordinary meaning must be given to them for then, the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation”
See AWOLOWO VS. SHAGARI (1979) 6 – 9 SC 51. Per Eso, JSC @ 85 paragraphs D-F. – Per I M. M. Saulawa, JSC
A fortiori, it’s trite that Dictionaries are not generally resorted to as a means of elucidating the construction of statutory provisions. However, a Court may out of sheer expediency resort to them. They may afford some help. See AG BENDEL STATE VS. AGBOFODOH (1999) 2 NWLR (pt. 592) 476; (1999) 2 SC 94; (1999) LPELR-616 (SC) per Ogwuegbu, JSC @ 40 paragraphs B-C. – Per I M. M. Saulawa, JSC
It is crystal clear that by virtue of the foregoing unequivocal provisions of Section 153 (1) (m) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Paragraph 30 of the Third Schedule to the Constitution, Sections 6 and 24 of the Police Service Commission (supra), Sections 12, 13 and 14 of the Police Act (supra), the Police Service Commission (1st Respondent) is conferred with the exclusive powers to appoint police officers from the lowest rank of recruits/constables or cadets up to Deputy Inspector General of Police. Thus, I have no difficulty at all in appreciating and upholding the finding of the Court below, to the effect that by the instrumentality of the provisions of Section 153 (1) (m) of the Constitution (supra), Paragraphs 29 & 30 (a) (b) of the Third Schedule to the Constitution (supra), Section 14 of the Police Act (supra), the provisions of paragraphs (Sections) 7- 105 (1) of the Police Regulations 1968 are in conflict with the Constitution (supra) and the Police Act, and therefore null, void and of no effect whatsoever.
The Supremacy of the Constitution over any Act or law in Nigeria cannot, by any stretch of imagination, be trivialized or compromised. The provision of Section 1 (3) of the 1999 Constitution (supra) is very unequivocal on that point:
“1. (1) This Constitution is Supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void." – Per I M. M. Saulawa, JSC
The functions of the 1st Respondent are clearly spelt out in Paragraph 30 Part 1 of the Third Schedule to the Constitution as well as Section 6 of the Police Service Commission (Establishment) Act. It is important to make it clear that the Schedule to the Constitution or an enactment forms part and parcel of the Constitution or enactment. See SARAKI V. FRN (2016) LPELR – 40013 (SC). – Per Adamu Jauro, JSC
It is equally imperative to restate the elementary principle of the supremacy of the Constitution. The Constitution of the Federal Republic of Nigeria is the grundnorm, the basic law of the land. It stands head and shoulders above any other law or instrument enacted by the National Assembly, State House of Assembly or any other person or authority empowered in that regard. It is from the Constitution that every other enactment or instrument derive their validity and binding force. The doctrine of the Supremacy of the Nigerian Constitution is traceable to Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), which provides thus:
“1. Supremacy of the Constitution
(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.
Thus, the doctrine of supremacy of the Constitution dictates that any exercise of legislative powers must be exercised bearing in mind that the Constitution is Supreme. Legislative powers cannot be exercised in a manner that is inconsistent with the Constitution and any law or instrument enacted which is inconsistent with the Constitution shall be void to the extent of the inconsistency. See MADUMERE & ANOR V. OKWARA & ANOR (2013) LPELR – 20752 (SC), MARWA & ORS V. NYAKO & ORS (2012) LPELR – 7837 (SC), FIRST BANK V. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283 (SC), OLAFISOYE V. FRN (2004) LPELR – 2553 (SC), INEC V. MUSA (2003) LPELR – 24927 (SC).
Any power conferred on a person or entity by the Constitution cannot be curtailed or shared with anyone else unless the Constitution so provides. Similarly, powers conferred on any person, authority or entity by the Constitution cannot be enlarged unless the Constitution so provides. In INEC V. MUSA (2003) 3 NWLR (PT. 806) 72 at 199, paras. D – G, this Court per Tobi, JSC enunciated thus:
“In other words, the sky is the limit of Section 45(1) of the Constitution as it affects the exercise of legislative powers of the National Assembly. With respect, I do not agree with him. His submission has not taken into consideration the supremacy clause of the Constitution, in Section 1, an aspect I will deal with in this judgment. If the contention of learned counsel iscorrect, then the National Assembly has the legislative powers to enact an Act which vests more powers on the 1st appellant, clearly beyond the provisions of Section 222. That cannot be the correct legal position. The supremacy of the National Assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly which the Constitution vests powers cannot go outside or beyond the Constitution. Where such a situation arises, the Courts will, in an action by an aggrieved party, pronounce the Act unconstitutional, null and void. See A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264”.
In the same case, his Lordship explained the doctrine of “covering the field” at page 204, paras.
G – H thus:
“The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly, by the purported exercise of its legislative powers enacted a law which an Act of the National Assembly has already made provisions covering the subject matter of the State law. In both situations, the doctrine of covering the field will apply because of the ‘Federal might’ which relevantly are the Constitution and the Act”.
Ayoola, JSC further expatiated on the doctrine in the following words at page 158, paras. B – G:
“Although the Constitution does not state that an Act of the National Assembly cannot duplicate the provisions of the Constitution, by judicial interpretation, verging on policy, the consequence of such duplication has been variously described as “inoperative” “in abeyance”
‘suspended’ (See A.-G., Ogun State v. A.-G., Federation (1982) NSCC 1, at Pp. 11, 27-29, 35) also reported in (1982) 3 NCLR 166. Howsoever it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have covered the field where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has So permitted”.
It is thus clear that when the Constitution has covered the field with respect to any subject matter, any other enactment which seeks to add to or subtract from the tenor of those provisions will be invalid, null, void and of no effect whatsoever, unless the Constitution permits. – Per Adamu Jauro, JSC
Section 141 of the Police Act, 2020 (the extant Police Act) defines a Constable as:
“Any OFFICER below the rank of Corporal." (emphasis mine) The Schedule to the same Act provides thus:
“Subject to Section 215(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the hierarchy of the Police shall consist of the following:
(xxiv) Constables I;
(xxv) Constables II;
(xxvi) Recruits; and
(xxvii) such other OFFICERS as the Nigeria Police Council may, from time to time consider necessary for effective discharge of the functions of the Police”. (emphasis mine) Flowing from the foregoing, it is clear that the office of a Constable is an office within the Nigeria Police Force and within the contemplation of Paragraph 30(a) Part 1 of the Third Schedule to the Constitution and Section 6(1)(a) of the Police Service Commissions (Establishment) Act. – Per Adamu Jauro, JSC
Let me emphasise that the Police Service Commission, the 1st Respondent herein, is the only agency empowered to appoint persons to offices within the Nigeria Police Force, except the office of the Inspector-General of Police. This power is restated in Section 6(1)(a) of the Police Service Commissions (Establishment) Act which is in pari materia with Paragraph 30(a) Part 1 of the Third Schedule to the Constitution. It is further reinforced by Section 14 of the Police Act, 2020 and Section 24 of the Police Service Commissions (Establishment) Act, , both of which are hereunder reproduced. Section 14 of the Police Act:
“The Police Service Commission shall appoint such persons to offices in the Police as are required for the effective and efficient performance of the functions of the Police Force on such terms and conditions as may be prescribed by the Police Service Commission”. Section 24 of the Police Service Commissions (Establishment) Act:
“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”. Section 24 of the Police Service Commission (Establishment) Act is a transitional provision intended to bring persons holding or occupying offices in the 1st Appellant before the commencement of the Act, within the purview of the disciplinary control and other powers of the 1st Respondent.
The Constitution has covered the field on the subject of the appointment of persons, other than the Inspector-General of Police, to offices in the Nigeria Police Force. Hence any legislation or instrument seemingly derogating from such a power will be void. See A.-G., ONDO STATE V. A.- G., FEDERATION (2002) 9 NWLR (PT. 772) 383 and A.-G., ABIA STATE V. A.-G., FEDERATION (2002) 6 NWLR (PT. 763) 264 wherein Uwais, CJN (as he then was) held:
“I agree that the doctrine of covering the field can conveniently be extended to apply to a situation where the Constitution has covered the field vis-a-vis a Federal or State legislation, such legislation is not void simpliciter but will not be operative in view of the provisions of the Constitution. However, if the legislation is inconsistent with the provisions of the Constitution, then, the legislation is void to the extent of the inconsistency vide Section 1 Subsection 3 of the Constitution.” – Per Adamu Jauro, JSC
From the excerpted provisions of the 1999 Constitution, it is clear that although the Nigeria Police Regulations, 1968 preceded both the 1979 and 1999 Constitutions, it is an existing law.
Being an existing law, the Nigeria Police Regulations shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution. In other words, upon the coming into force of the 1999 Constitution, the Constitution covered the field as regards the appointment of persons to offices in the Nigeria Police Force, other than the office of the Inspector-General of Police and the Nigeria Police Regulations automatically became modified in such a way as to bring it into conformity with the Constitution.
Section 315(3) of the Constitution reproduced above empowers this Court or any other Court of law or Tribunal created by law to declare invalid, the provisions of any existing law for being inconsistent with the provisions of any other existing law, a Law of a House of Assembly, an Act of the National Assembly or any provision of the Constitution. The Nigeria Police Regulations being a subsidiary legislation, ranks far below the Constitution in the hierarchy of laws. See P.D.P. V. C.P.C. (2011) 17 NWLR (PT. 1277) 485. In that case, this Court held that rules of Court have the status of subsidiary legislations and are far below constitutional provisions which sit at the apex of the hierarchy of laws in Nigeria. In the present case, the Nigeria Police Regulations is a subsidiary legislation made pursuant to the powers conferred on the President of the Federal Republic of Nigeria in that regard by Section 46 of the Police Act, 1943. Similar power to make regulations is now vested in the Minister with responsibility over police matters, the 3rd Appellant herein, by Section 138 of the Police Act, 2020. Being a subsidiary legislation, the Nigeria Police regulations ranks below the Constitution and the Police Service Commission (Establishment) Act. – Per Adamu Jauro, JSC
The mere fact that a person has persisted in illegality does not confer the illegality with the cloak of legality. An illegality remains so, irrespective of how long it has been practised. As the Latin maxim goes – dormiunt leges aliquando, nunquam moriuntur (the laws sometimes sleep, but they never die). The fact that a law has not been enforced for so long does not change its status as a law. – Per Adamu Jauro, JSC
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