Body Empowered to Recruit Constables into the Nigeria Police Force

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 11th day of July, 2023

Before Their Lordships

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Sulawa

Adamu Jauro

Tijjani Abubakar

Justices, Supreme Court

SC/CV/773/2020

Between

1. NIGERIA POLICE FORCE

2. INSPECTOR GENERAL OF POLICE

3. HON. MINISTER OF POLICE AFFAIRS                   APPELLANTS

                                 And

1. POLICE SERVICE COMMISSION

2. ATTORNEY-GENERAL OF THE FEDERATION  RESPONDENTS

(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)

Facts

A dispute arose between the Appellants and the Respondents as to who, between the 2nd Appellant and 1st Respondent, is statutorily responsible for the recruitment of constables into the Nigeria Police Force. Consequently, the 1st Respondent filed an action at the Federal High Court, seeking inter alia the determination of questions on the interpretation of the provisions of Section 153(1)(m) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Paragraph 30 Part 1 of the Third Schedule to the Constitution, and Sections 6 and 25 of the Police Service Commission (Establishment) Act, 2001 with regards to the body responsible for the appointment, promotion, dismissal or exercise of disciplinary control over any persons holding or aspiring to hold offices in the Nigeria Police Force (except the Inspector General). 

The 1st Respondent sought, upon the determination of these questions, a declaration that by the combined effect of the referenced provisions, it is the sole statutory body exclusively empowered to appoint, promote, dismiss or exercise disciplinary control over any persons holding or aspiring to hold offices in the Nigeria Police Force, except the Inspector General. The 1st Respondent also sought, amongst other reliefs, an order nullifying any act or attempt by the Appellants to appoint, enlist or recruit persons into the Nigeria Police Force.  

The trial court, whilst dismissing the 1st Respondent’s case held that. the powers of the 1st Respondent to appoint officers into the Nigeria Police Force (excluding the 2nd Appellant) do not include the power to recruit constables. The trial court held that Regulation 71 of the Nigeria Police Regulations, 1968 specifically confers on the Appellants the power to recruit constables, and the statutory powers of the 1st Respondent in relation to the appointment of officers into the Nigeria Police Force (except the Inspector General of Police), are only exercisable after the 2nd Appellant has exercised the power to recruit the said constables. Displeased, the 1st Respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal and held that the power of appointment donated to the 1st Respondent by the Constitution and its enabling Act, encapsulates the power to recruit constables. The Court of Appeal also nullified Regulation 71 of the Nigeria Police Regulations, for being inconsistent with the Constitution. Dissatisfied, the Appellant filed an appeal before the Supreme Court. 

Issue for Determination 

The Supreme Court adopted the first issue submitted by the Appellant, as the central issue germane for the determination of the appeal. 

Whether the Court of Appeal was right in its finding that, as between the 1st Appellant and the 1st Respondent, it is the 1st Respondent (Police Service Commission) that has the power to recruit constables into the Nigeria Police Force.

Arguments

Learned senior counsel for the Appellants submitted that Regulation 71 of the Nigeria Police Regulations 1968, clearly designates the statutory officers of the 1st Appellant who shall be responsible for the enlistment of recruit constables; that the recruitment is for the purpose of identifying and training such persons before they can be appointed as officers in the 1st Appellant. He contended that there is a distinction between the word “recruit” and “appoint”, and that the 1st Respondent’s powers of appointment are different from the 2nd Appellant’s power of recruitment. He argued that 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 do not contain such provisions but only made provisions only for the appointment of persons to offices in the 1st Appellant. 

He further submitted that the Court of Appeal erred by nullifying Regulations 71 and other related Regulations of the Nigeria Police Regulations, on the basis that they were inconsistent with the provisions of Paragraph 30 Part 1 of the Third Schedule to the Constitution and Section 6 of the Police Service Commission (Establishment) Act as, according to him, there is nothing in the Constitution or the Police Service Commission (Establishment) Act, whether direct or implied, to indicate that they intended to repeal the said Regulations. 

On the other hand, learned senior counsel for the 1st Respondent submitted that the Court of Appeal rightly held that, the words “appointment “and “recruitment” mean one and the same thing. He argued that the powers conferred on the 1st Respondent by the Constitution and the enabling Act, extends to recruitment or enlistment of constables into the Nigeria Police Force. He submitted that the 1st Respondent having been created by the Constitution and empowered by Paragraph 30 Part 1 of the Third Schedule to the Constitution to appoint persons to offices in the Nigeria Police Force, its powers in this regard extend to constables as listed in the Schedule to the Police Act; the only exception being the office of the 2nd Appellant. He submitted that the lower court rightly voided all the provisions in the Nigeria Police Regulations 1968, which purport to vest the power of enlistment of recruit constables into the Nigeria Police Force as being inconsistent with the Constitution.

Court’s Judgement And Rationale

In determining the appeal, the Court referred to the provision of Section 153(1)(m) of the 1999 Constitution which established the 1st Respondent and subsection 2 thereof, on its composition and powers contained in Part 1 of the Third Schedule to the Constitution. The Court also reproduced Paragraph 30 of Part 1 of the Third Schedule to the Constitution which vests the 1st Respondent with the powers to appoint persons to offices (other than the office of the Inspector General of Police) in the Nigeria Police Force, and to promote, dismiss and exercise disciplinary control over persons in the Nigeria Police Force. The Court held that it is clear from a combined reading of subsection 2 of Section 153 and Paragraph 30 of Part 1 of the Third Schedule to the Constitution, that the 1st Respondent is statutorily empowered to appoint persons to offices (other than the office of the Inspector General of Police) in the Nigeria Police Force.

The Apex Court also referred to Section 6 of the Police Service Commission (Establishment) Act 2001,  to the effect that the 1st Respondent shall be responsible for the appointment, promotion, dismissal and exercise of disciplinary control over persons in the Nigeria Police Force, with the exception of the Inspector General of Police. Further affirming the statutory powers of the 1st Respondent at the relevant time it was established, the court referred to Section 24 of the Police Service Commission (Establishment) Act 2001, which brought persons holding 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.

Thereafter, the Court proceeded to determine whether as argued by the Appellants, the 1st Respondent’s powers of appointment do not extend to recruitment of constables. Relying on Chapter 2, Section 2, Number 020201 of the Public Service Rules held by the Court to be applicable to the 1st Appellant, the Court held that although the word used by the Constitution and the Police Service Commission (Establishment) Act on the powers of the 1st Respondent is “appoint”; however, by the ordinary English and legal meaning of both words, it encapsulates the process of recruitment. The Court referred to its definition of “recruit” in its decision in IYEKE v P. T. 1. (2019) 2 NWLR (PT. 1656) 217 as meaning to “hire or enrol or to seek to hire or enrol (new employees, students etc)”. In other words, recruitment and appointment for the purpose of employing personnel into the Nigeria Police Force are one and the same thing, and the 1st Respondent is constitutionally empowered to carry out the process of recruiting persons for positions within the Nigeria Police Force, other than the office of the Inspector General of Police.

On whether the office of a constable is an office within the contemplation of Paragraph 30 of Part 1 of the Third Schedule to the Constitution and Section 6(1) of the Police Service Commission (Establishment) Act, the Apex Court held that flowing from the provision of Section 141 of the Police Act 2020 which defines a constable as an officer below the rank of a corporal and the Schedule to the Act which provides that the hierarchy of the Police shall consist of constables, recruits amongst others; it is clear that the office of a constable is an office within the Nigeria Police Force and within the contemplation of Paragraph 30 of the Third Schedule to the Constitution. Therefore, the power of the 1st Respondent to appoint officers into the Nigeria Police Force (except for the 2nd Defendant), also includes the power to recruit. As of today, the body empowered to recruit Police Constables by law, is the Police Service Commission.

The Court further held that the provision of Regulation 71 of the Nigeria Police Regulation 1968 which created recruitment officers subject to any necessary delegation of powers by the Nigeria Police Council and subject to the control of the Inspector General of Police, is clearly inconsistent with Paragraph 30 of Part 1 of the Third Schedule to the Constitution which vests the powers regarding appointment, enlistment or recruitment of persons into the Nigeria Police Force (excluding the 2nd Respondent) in the 1st Respondent. With the advent of the 1999 Constitution which did not confer such powers on the Nigeria Police Council, it is impossible for the Nigeria Police Council and the 2nd Appellant to delegate powers or exercise any control in respect of the appointment or recruitment of constables. 

Affirming the decision of the Court of Appeal voiding Regulations 71 (and other relevant provisions) of the Nigeria Police Regulations for being in conflict with Paragraph 30 Part 1 of the Third Schedule to the Constitution, the Apex Court held that any law enacted before the coming into force of the Constitution which is in conflict with the provisions of the Constitution must be modified or repealed as required by the Section 315 of the Constitution, and where the National Assembly has neither modified nor repealed it, same must be declared unconstitutional. Therefore, any provisions in the Nigeria Police Regulations, 1968 (an existing law), which overlaps with the provisions of the Constitution empowering the 1st Respondent to appoint officers including constables (except the Inspector General of Police), must be declared null and void to the extent of their inconsistencies.  

Appeal Dismissed.

Representation

Dr Alex Iziyon, SAN, OFR, Phd. with Others for the Appellants.

Mr Agabi, SAN for the 1st Respondent.

Adedayo Ogundele ACSC with others for the 2nd Respondent. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)An Affiliate of Babalakin & Co.