Inconsistency of Nigeria Police Regulations 126 and 127 with the Constitution

In the Court of Appeal of Nigeria

Abuja Judicial Division

Holden at Abuja

On Friday, the 3rd day of May, 2024

Before the Lordships

Joseph Olubunmi K. Oyewole

Adebukola I. Banjoko

Okon Efreti Abang

Justices, Court of Appeal

 CA/ABJ/CV/454/2022

Between

THE INCORPORATED TRUSTEES

NIGERIAN BAR ASSOCIATION                                 APPELLANT

And

1. THE ATTORNEY-GENERAL OF THE FEDERATION

2. THE POLICE SERVICE COMMISSION

3. THE NIGERIA POLICE FORCE                                  RESPONDENTS

(Lead Judgement delivered by Honourable Joseph Olubunmi Kayode Oyewole, JCA)

Facts

Following the dismissal of a female Police Officer, Omolola Olajide from the Nigeria Police Force, on the ground that she got pregnant while unmarried and thus, liable to be discharged from the Force in accordance with to Regulation 127 of the Nigeria Police Regulations made pursuant to the Police Act, Cap 19 Laws of the Federation, 2004; the Appellant filed an Originating Summons at the Federal High Court for the determination of the constitutionality or otherwise of the said Regulation 127. Specifically, the Appellant sought the determination of whether the provision of the said Regulation is not in contravention of the provisions of Sections 37 and 42 of the 1999 Constitution and thus, unconstitutional, null and void; whether taking into consideration the provisions of Regulation 127, the provision of Regulation 126 of the Nigeria Police Regulation which entitles only pregnant married female Police officers to maternity leave, does not contravene the provisions of Section 37 and 42 of the 1999 Constitution and; whether the provisions of Regulations 126 and 127 of the Nigeria Police Regulations are not violent contraventions of the provisions of Articles 2, 3, 5, 18 and 19 of the African Charter on Human and Peoples’ Rights.

The Appellant then sought inter alia, declaratory orders to the effect that the provisions of Regulations 126 and 127 of the Police Regulations contravene the provisions of Sections 37 and 42 of the 1999 Constitution; Articles 2, 3, 5, 18 and 19 of the African Charter on Human and Peoples’ Rights and thus, unconstitutional, null and void; and that the practical implementation of the said Regulations amounts to discrimination against all unmarried female Police officers in the Nigeria Police Force on the grounds of sex and circumstances of birth.

The Appellant also sought an order striking out Regulations 126 and 127 of the Nigeria Police Regulations for being inconsistent with the Constitution, and an order directing the Respondents to provide to all unmarried female Police officers in the Nigeria Police Force all the amenities and facilities that they are entitled to under the Labour Act and as applicable to married female Police officers in the Nigeria Police Force. 

The Respondents joined issues with the Appellant by filing a counter-affidavit, and after taking arguments of counsel, the trial court dismissed the Appellant’s suit for lacking in merit. Dissatisfied, the Appellant appealed to the Court of Appeal.

Issue for Determination

In determining the appeal, the Court of Appeal adopted the issues formulated by the Appellant as subsumed hereunder:

Whether the trial court erred in law and occasioned a miscarriage of justice when it failed to grant the reliefs sought by the Appellant, on the basis that a grant of the same will lower the moral and professional standards of the Nigeria Police Force.

Arguments

Counsel for the Appellant submitted that it is the duty of all government agencies to observe and apply provisions of the Constitution, and that any arrangement agreed to by any prospective member of the Nigerian Police at the point of entry, is not sufficient to constitute a waiver of their constitutionally protected rights. He referred to UNILORIN v OLUWADARE (2003) 3 NWLR (PT. 8080) 557 at 583. He argued that Regulation 127 of the Nigeria Police Regulations seeks to regulate the life of citizens in an unfair and unnatural manner, and should be struck out for being discriminatory against unmarried Police women. He contended that the said Regulation 127 is inconsistent with the provisions of Sections 17(2) a) and 42 (1) of the 1999 Constitution which provide that, no citizen of this country shall be subjected to any disability or deprivation or discrimination based on circumstances of birth or sex.

Counsel argued further that the provisions of Sections 37 and 42 of the Constitution and Articles 2, 3, 5, 18 and 19 of the African Charter on Peoples’ and Human Right protect the citizens from discriminations based on sex, religion, ethnicity and discrimination based on sex is not restrictive in application. He contended that Regulations 126 and 127 which only recognise certain category of women as being entitled to procreate are discriminatory, and in breach of the right to privacy and family life. He contended that the trial court wrongfully allowed its moral inclinations, to becloud its perception of the issues in contention.

On his part, Counsel for the Respondents argued that the provisions of Regulations 126 and 127 of the Nigeria Police Regulations, when related with the masculine nature of Police duties, were not in violation of Sections 37 and 42 of the Constitution. He submitted that fundamental rights are never absolute, and that exceptions must be made for regulations such as those under consideration, which aim to ultimately achieve work efficiency and productivity and optimal commitment. He submitted that the restriction imposed by Regulation 127 was time bound, and should be considered lawful time bound restriction. He argued further that female recruits, having consented at the point of their enlistment to be bound by the said regulation which expects female recruits to be unmarried to ensure absolute dedication until after two years in the Force, are bound by the principle of volenti non fit injuria and cannot turn round to claim that their fundamental rights have been infringed. He urged the appellate court, to dismiss the appeal. 

Court’s Judgement and Rationale

In its resolution of the appeal, the Court of Appeal juxtaposed the provisions of Regulations 126 and 127 of the Nigeria Police Regulations to the effect that an unmarried woman Police officer who gets pregnant shall be discharged from the Force, against the provisions of Sections 37 and 42 of the 1999 Constitution which guarantee a citizen’s rights to privacy and forbids any law in force or any executive or administrative action of the government from subjecting a citizen to disabilities or restrictions by reason of circumstances of birth, ethnic group, place of origin, sex, religion or political opinion. 

The Court in interpreting the said sections, referred to the admonition of the Supreme Court in DIRECTOR OF SSS & ANOR v AGBAKOBA (1999) LPELR-954 (SC) at 42-43 that, in dealing with the fundamental rights provisions of the Constitution, while not being unmindful that the stated rights may be qualified, it is imperative that the protected rights be interpreted as will accord with the values of a humane and civilised democratic society where the rule of law prevails.

The Appellate Court held that while Regulation 126 of the Nigeria Police Regulations provides that pregnant married women Police officers may be entitled to maternity leave, Regulation 127 provides that an unmarried woman Police officer who becomes pregnant shall be discharged from the Force and shall not be re-enlisted, except with the approval of the Inspector General. The Court held that a careful appraisal of these Regulations discloses that an unmarried female Police officer on account of her gender, cannot procreate. 

The Court held that the argument of Counsel for the Respondents, that the said Regulations were to assist in the efficiency and productivity are misplaced as any doubt about the discriminatory nature of the Regulation 127 dissipates in the face of Regulation 118 of the same Nigeria Police Regulations also referred to by the Respondents’ Counsel, that requires female applicants to the Nigerian Police to be unmarried, and Regulation 124 which requires a female Police officer who is desirous of getting married to seek and obtain the prior permission of the State Commissioner of the Police to marry; whereas male officers are not required to seek any corresponding approval. The Court held further that the discriminatory nature of Regulations 126 and 127 are notwithstanding, the exception in subsection 3 of Section 42 of the Constitution that the right guaranteed shall not invalidate any law that imposes restrictions with respect to the appointment of any person to any public office, as the said regulations are not service wide, but are gender based.

The Court found that Regulations 126 and 127 interfere with the private lives of female Police officers and discriminates against them on the basis of gender, and this is a clear contravention of Section 42 of the 1999 Constitution which unequivocally forbids discrimination of any citizen on the basis of gender or circumstances of birth. The Court held further that the arguments of Counsel for the Respondents that the deprivation involved was consented to by prospective female Police officers and they cannot subsequently complain, flies in the face of the constitutional provisions expressly granting them the rights involved as citizens of Nigeria. The Court held that the rights given go beyond those for the personal benefit of the individuals involved as could be waived by them, but are public rights outside the purview of any individual to waive. 

The Court held that the finding of the trial court that the Regulations in issue are necessary for morality and discipline in the Police Force are erroneous, particularly in light of the fact that no such inhibition or restriction was extended to male Police officers. The Court held that morality and discipline do not have gender bias. 

On the overall, the Court of Appeal held that Regulations 126 and 127 are inconsistent with the provisions of Sections 37 and 42 of the 1999 Constitution, and are therefore, null and void to the extent of their inconsistency. The Appellate Court also advised the Respondents to carry out a comprehensive review of the entire Police Regulations, to ensure that they accord with the demands of a modern society operating under the rule of law. 

Appeal Allowed.

Representation 

Mr B. B. Lawal with Miss H. K. Salami for the Appellant.

Mr T. D. Agbe (Assistant State Chief Counsel, Federal Ministry of Justice) for the Respondents.

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