3PLR – BERNARD E. NGUN V. MOBIL PRODUCING NIGERIA UNLIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BERNARD E. NGUN

V.

MOBIL PRODUCING NIGERIA UNLIMITED

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 14TH DAY OF FEBRUARY, 2013

CA/C/35/2011

3PLR/2002/21  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

UZO I. NDUKWE-ANYANWU, JCA

JOSEPH TINE TUR, JCA

ONYEKACHI A. OTISI, JCA

 

BETWEEN

BERNARD E. NGUN Appellants

 

AND

MOBIL PRODUCING NIGERIA UNLIMITED Respondents

 

MAIN ISSUES

1. WORDS AND PHRASES – “AN APPOINTMENT”: Meaning of the phrase “an appointment”

“An “appointment” is the designation of a person for a job or duty, especially the naming of someone to a non-elected public or private office.” Per TUR, J.C.A. (Pp. 39-40, paras. G-A)

 

2. LABOUR LAW – CONTRACT OF EMPLOYMENT: Contract of employment governing employer/employee relationship

“Employer and employee relationship exists where a worker is employed under a contract of employment, i.e. a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law. The learned authors of Osborne’s concise Law Dictionary (supra) at page 103 have defined “Contract” as: “An agreement enforceable at law. An essential feature of contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise and acceptance. Contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it…” The relationship of the appellant and the respondent was not governed by an oral agreement but certainly, in writing. For a contract to come into existence there must be an offer even if made to the whole world. See Carlil v. Carbolic Smoke Ball Co. (1891-4) All E.R. Rep.127 where Lindley L.J., held at pages 129-130 that even in advertisement cases, “…The offer is to anybody who performs the conditions named in the advertisement anybody who does perform the conditions accepts the offer. I take it that if you look at this advertisement in point of law, it is an offer to pay E100 to anybody who will perform these conditions, and the performance of these conditions is the acceptance of the offer.” There must be an unqualified acceptance from the offeree, in this case, the employee for the contract to be complete and become legally binding and enforceable. See UBA Ltd. V. Tejumola & Sons Ltd. (1988) 5 SCNJ 73. In case of breach of contract only the party injured can sue. See Airoe Construction Co. v. University of Benin (1985) 1 NWLR (Pt.2) 287 at 292; Hill vs. C.A. Parsons & Co. Ltd. (1971) 3 All E.R. 1345; Ikpeazu vs. ACB Ltd. (1965) NMLR 379; LSDPC v. NL & S Food Ltd. (1992) 5 NWLR (pt.244) 653 and N.L.N.G. Ltd. v. A.D.I.C. Ltd. (1995) 8 NWLR (pt.416) 677. Termination of the relationship between an employer and an employee can be possible only by the parties to the contract. See Union Beverages Ltd. V. Pepsicola International Ltd. (1994) 2 SCNJ 157. In questions of dispute as to whether there was an existing contract, the onus is on the party asserting to prove offer and acceptance. See Council of Yaba Tech. vs. Nigeria (1989) 1 NWLR (Pt.95) 99; Biobaku v. Light etc (1986) 5 NWLR (Pt.39) 42. There is no implied power on an employer to suspend an employee except by agreement or statute. See Adekunle vs. W.R.F.C/(1963) WRNLR 6; Hanley vs. Pease Partners (1914-15) All E.R. Rep.984. The express terms in the agreement or statute has to be construed to determine the intention of the parties. See Ihezukwu v. University of Jos (1990) 21 NSCC 80 at 88 lines 26-35; Morohunfola v. College of Technology (1990) 7 SCNJ 51; Shell B.P. Petroleum Development Co. of Nigeria Ltd- & 5 ors. vs. M.S. Onasanya (1976) 6 SC 57. In NIDD v. Olalomi Industries Ltd. (2002) 5 NWLR (pt.761) 532 at 555 paragraphs “G” the Court held that: “…a document speaks for itself and that oral testimony is inadmissible to vary, add to or take away from the contents of the document.” No oral evidence shall be admitted in construing Exhibit “1” or Section 18 of the Police Act (supra) to determine the relationship between the appellant and the respondent. In Mandilas & Karaberis Ltd. v. Otikiti (1963) 1 All NLR 22 Bairamian F.J., held at page 26 that: “…When a contract is reduced into writing, the writing gives the terms agreed upon…” See also Olaniyan & ors. V. Unilag (1985) 1 ALL NLR 314 or (1985) 2 NWLR (pt.9) 599. ” Per TUR, J.C.A. (Pp. 35-37, paras. A-E)

 

3. INTERPRETATION OF STATUTE – ORDER 25 RULE 4(1): Interpretation of Order 25 rule 4 (1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 with respect to who should sign pleadings

“I shall begin by holding that Order 25 rule 4 (1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 is very clear, unambiguous and does not require any manipulative interpretation to arrive at the intention of the law maker or giver. The word “shall” in the provision of Order 25 rule 4th) of the Rules (supra) is equivalent to “must” see Edewor vs. Owegba (1987) 2 SC 29 at 103; Oloyo vs. Alegbe (1983) 2 SCNLR 35; Katto vs. CBN (1991) 12 SCNJ 1 at 17 and Chief P.I. Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329. The effect of appending a signature on a document is to vouch for its authenticity; it is an assurance that the party signing is to be bound by the document or process. See Chrisdon Industrial Ltd. vs. A.I.B. Ltd. (2002) FWLR (Pt.128) 1355; Okoye vs. Santili (1994) 4 SCNJ (pt.2) 333; Zein vs. Geidam (2004) ALL FWLR (pt.237) 457 at 481 paragraph “G”-“H” and Allied Bank of Nigeria vs. Akubueze (1997) 7 SCNJ 116. The learned authors of Black’s Law Dictionary, 9th edition, page 1507 defines the verb “sign” as “1. To identify (a record) by means of a signature, mark, or other symbol with the intent to authenticate it as an act of agreement of the person identifying it … 2. To agree with or join.” The word “signature” is further defined (p.1507) as “1. A person’s name or mark written by that person or at the person’s direction … 2. Commercial law… Any name, mark, or writing used with the authenticating a document.” The name of the Chamber that settled the Amended Statement of Defence is: “PP Kayode Sofola & Associates 9 Ondo Street, Osborne Foreshore, Estate, Ikoyi, Lagos.” The party suing is Bernard Ngun and the party defending is Mobil Producing Nigeria Unlimited. The Chambers that represented the Respondent is “PP Kayode Sofola & Associates.” But what is the name of the legal practitioner who scribbled a signature on top of the entry “PP. Kayode Sofola & Associates, 9, Ondo Street, Osborne Foreshore Estate, Ikoyi, Lagos?” That is not stated. Did the person sign as a Legal Practitioner or as an associate in the Chambers of Kayode Sofola & Associates? There is no answer. From the address on the Amended Statement of Defence it is crystal clear that Kayode Sofola is not alone in that chambers. In legal jargon the word associate” is defined in Black’s Law Dictionary, 9th edition, page 141 as “1. A colleague or companion. 2. A junior member of an organization or profession; especially, a lawyer in a law firm, usually with fewer than a certain number of years in practice, who may, upon achieving the requisite seniority, receive an offer to become a partner or shareholder… 3. …An officer of a common-law Court responsible for maintaining the Court’s records, attending jury trials, and entering verdicts…” Again in Osborn’s concise Law Dictionary, 9th edition, by Sheila Bone, page 41 “associates” are “officers of the common law courts, who were appointed by and held office at the pleasure of the Chief Justice or Chief Baron of each Court, and whose duties were to keep the records of the Court, to attend nisi prius (of. v.) sitting, make out the list of cases, conduct the jury ballot, note the judgment, make up the postea (or certificate of the result of trial) and deliver the record to the proper party. Now, associates are officers of the Queens Bench Division of the High Court.” Litigation clerks or secretaries in a Law Firm can be “associates” if they perform the duties associated with legal practice. Similarly, “associates” could be the Legal Practitioners in a Law Firm carrying on the Practice of Barrister and Solicitor of the Supreme Court. That is why the person signing the pleadings must indicate in very clear terms the capacity in which it is signed. Had the law maker intended that pleadings could be signed “PP” or by associates” that would have been unambiguously stated in Order 25 rule 4 (1) of the Rules supra. Some Litigation Secretaries are so experienced or knowledgeable that they settle pleadings, draft motions, example bail applications and file Notices of Appeal, etc. Nevertheless they have not been called to the Bar. Some Legal Practitioners go to the extent of allowing their secretaries to write or sign legal documents on their behalf which are subsequently filed in the Court. I think it is to forestall such “associates” from signing pleadings that the law maker came up with the idea of Order 25 rule 4(1) of the Rules supra. In construing mandatory provisions in the Rules of the Court or a statute, it is the express intention of the law maker that is of paramount consideration. See Osho v. Philips (1972) 1 All NLR (pt.1) 276 at 285; Odutola Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt.994) 321. The law is well settled: the express mention of one thing in a statute or rule of Court automatically excludes others. See Udoh vs. Orthopaedic Hospital Management Board & Ors. (1993) 7 SC (Pt.2) 436 at 444; Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (pt.118) 646 and Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.8) 280. The decisions of the Supreme Court which struck out pleadings or Notices of Appeal that were signed by a person not shown to be a party or a legal practitioner have binding effect on this Court. This was made clear in Osakue v. F.C.E. (Technical) Asaba (2010) 10 NWLR (Pt.1201) 1 per Ogbuagu, JSC at page 29 of the judgment where his Lordship held that: “…I wish to stress the fact that in the hierarchy of the Courts, where there are conflicting judgments, the Court of Appeal, is bound by the latter or last decision of this court. It has no choice however brilliant and knowledgeable the justice of that Court may think or hold that they are more than this Court…” On when a subordinate court is at liberty to pick and choose which Supreme Court’s conflicting judgments should be applied in any given circumstances, Ogbuagu, JSC held at page 36 paragraph “A”-“C” as follows: “Lastly and in summary, the legal position is that the Court of Appeal and indeed all lower courts are bound by the decision of this Court. However, where the principles enumerated in any decision of this court, is not relevant or applicable to the issue or issues arising for determination in the case before the Court of Appeal or lower court that is a different matter or a different ball game. See the case of Osho v. Foreign Finance Corporation (supra). Where there is no discernible ratio decidendi common to the decisions of a superior court and this court has handed down conflicting decisions, the lower court or a court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct. See N.E.P.A. & Ors. V. Mrs. Onah (supra) and Okolie Chime & Anor. V. Ofili Elikwu & Anor (1965) NMLR 71…” Fabiyi, JSC held at page 39 paragraphs “B”-“C” of the judgment that: “…I do not see the rationale for the fuss generated by the Court of Appeal, Ilorin Division in its decision in University of Ilorin v. Adeniran in preferring to follow the decision of this court in O.H.M.B. vs. Mallam Garba and brushing aside the latter decision of this Court in Odutola v. University of Ilorin. In a similar situation in Atolagbe v. Awuni & Ors. (1997) 7 SCNJ 1 at 20, 24 and 35; (1997) 9 NWLR (pt. 522) 536, this court was not happy with the stance of the trial Judge who engaged in a similar prank.” The effect is that the Amended Statement of Defence is a nullity contrary to the holding of the learned trial Judge at page 161 lines 17 to page 162 tines 1-11 of the printed record that: “In my view the case of Okafor vs. Nweke (supra) is distinguishable from the instant case. In Okafor’s case, the signature was signed on top of J.H.C. Okolo SAN & Co. with any sign such as “PP” as in this case which means that the signature belonged to J.H.C. Okolo SAN & Co. which of course is not a legal practitioner recognized by Section 2(1) of the Legal Practitioners Act, Cap. 207 Laws of the Federation of Nigeria, 1990 which provides: “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll.” But in the present case, the signature was signed PP: Kayode Sofola’s Chambers – “PP” is an abbreviation for “propria persona” which means in his proper person, in his own person. It also means by proxy, by one acting as an agent with special powers. See Black’s Law Dictionary, 7th edition. By reason of the abbreviation “PP”, the signature represents a known legal practitioner who has been called to the Bar and duly enrolled to practice as a Solicitor and Barrister and has only signed as an agent of the Law Firm of Kayode Sofola’s Chambers. That in my view is the saving grace to the statement of defence filed on the 17th May, 2001. I therefore hold that the statement of defence filed on the 17th May, 2001 is competent.” A decision based on the Amended Statement of Defence stands vitiated. See Bello vs. INEC (2010) 8 NWLR (Pt.1196) 342; Okoye vs. Nigeria Construction Furniture Co. Ltd. (1991) 6 NWLR (pt.199) 501 at 539 and Benjamin Macfoy vs. UAC Ltd. (1961) 5 WLR 1405.” Per TUR, J.C.A. (Pp. 27-33, paras. C-E)

 

4. ACTION – PLEADINGS: Effect of pleadings on Trial Courts

“Every Trial Court is bound by the pleadings. See African Continental Seaways Ltd. V. Nigerian Dredging Road & General Works Ltd. (1977) 5 SC 235 at 250; Tenco Engineering Co. Ltd. vs. S.B.N. Ltd. (1995) 8 NWLR (Pt.397) 607.” Per TUR, J.C.A. (P. 47, paras. B-C)

 

5. INTERPRETATION OF STATUTE – SECTION 18: The provisions of Section 18(1)(2), (3), (4) (5) and (6) of the Police Act, Cap. 359, Laws of the Federation of Nigeria, 1990 with respect to appointment and discipline of a Supernumerary Police Officer

“The learned counsel to the Respondent has made heavy weather of the provisions of the Police Act, Cap. 359, Laws of the Federation of Nigeria, 1990 to the effect that the appellant was an employee of the Nigeria Police Force. The answer to this submission lies in the provisions of Section 18 of the Police Act (supra) which reads as follows: “18(1) Any person (including any government department) who desires to avail himself of the services of one or more Police Officers for the protection of property owned or controlled by him may make application therefore to the Inspector-General, stating the nature and situation of the property in question and giving such other particulars as the Inspector-General; may require. (2) On an application under the foregoing subsection the Inspector-General may, with the approval of the President, direct the appropriate authority to appoint as Supernumerary Police Officers in the Force such number of persons as the Inspector-General thinks requisite for the protection of the property to which the application relates. (3) Every Supernumerary Police Officer appointed under this section:- (a) shall be appointed in respect of the area of the police province or, where there is no police province, the police district or police division in which the property which he is to protect is situate; (b) shall be employed exclusively on duties connected with the protection of that property; (c) shall, in the police area in respect of which he is appointed and in any police area adjacent thereto, but not elsewhere, have the powers, privileges and immunities of a police officer; and (d) subject to the restrictions imposed by paragraphs (b) and (c) of this subsection and to the provisions of Section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline. (4) Where any Supernumerary Police Officer is appointed under this section, the person availing himself of the services of that officer shall pay to the Accountant-General:- (a) on the enlistment of the officer, the full cost of the officer’s uniform; and (b) quarterly in advance, a sum equal to the aggregate of the amount of the officer’s pay for the quarter in question and such additional amounts as the Inspector-General may direct to be paid in respect of the maintenance of the officer during that quarter; and any sum payable to the Accountant-General under this subsection which is not duly paid may be recovered in a summary manner before a magistrate on the complaint of any Superior Police Officer: Provided that this subsection shall not apply in the case of an appointment made on the application of a department of the Government of the Federation. (5) Where the person availing himself of the services of any Supernumerary Police Officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal Territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a state, to the commissioner of police of that state; and on the expiration of such notice the services of the Supernumerary Police Officer in question shall be withdrawn. (6) Where the services of a Supernumerary Police Officer are withdrawn in pursuance of subsection (5) of this section in the course of a quarter for which the sum mentioned in subsection (4)(b) of this section has been paid to the Accountant-General, the Accountant-General shall pay to the person by whom that sum was paid a sum which bears to that sum the same proportion as the unexpired portion of that quarter bears to the whole of that quarter. (7) In this section, “the Accountant-General” means the Accountant-General of the Federation; “government department” means any department of the Government of the Federation or of the Government of a State; and “quarter” means any period of three months: and any reference in this section to the person availing himself of the services of a Supernumerary Police Officer appointed under this section is a reference to the person on whose application the officer was appointed or, if that person has been succeeded by some other person as the person owning or controlling the property for the protection of which the officer in question was appointed, that other person. 19(1) The appropriate authority may, at the request of any superior police officer, appoint any person as a supernumerary police officer in the Force with a view to that person’s employment on duties connected with the administration or maintenance of premises occupied or used for the purposes of the Force, but shall not do so in any particular case unless satisfied that it is necessary in the interest of security or discipline that persons performing the duties in question should be subject to the provisions of this Act relating to discipline. (2) Every supernumerary police officer appointed under this Section:- (a) shall be appointed in respect of the area of the police area command or where there is no police area command, the police division in which the premises in connection with whose administration or maintenance he is to be employed are situated; (b) shall be employed exclusively on duties connected with the administration or maintenance of those premises; (c) shall, in the police area in respect of which he is appointed, but not elsewhere, have the powers, privileges and immunities of a police officer; and (d) subject to the restrictions imposed by paragraph (b) and (c) of this subsection and to the provisions of Section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to provisions thereof relating to discipline. There is no evidence that the appellant was appointed a spy police constable or a supernumerary police officer under the provisions of section 18(1)(2), (3), (4) (5) and (6) of the Police Act (supra). Only a Supernumerary police officer appointed under the provisions of Section 18(1)-(3)(a)-(d), “…shall be a member of the Force for all purposes and accordingly shall be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.” See Section 18(3)(d) of the Act (supra) and Okon Johnson & ors. V. Mobil Producing Nig. Unlimited (2009) All FWLR (Pt.530) 1331 and Mobil Producing Nigeria Unlimited vs. Otoabasi Effiong (unreported) Appeal No.CA/C/204/2009 delivered by the Calabar Division of the Court of Appeal on 31st day of May, 2011.” Per TUR, J.C.A. (Pp. 40-44, paras. A-F)

 

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff in the High Court of Justice, Eket, Akwa Ibom State. The Respondent was the defendant. In the writ and statement of claim filed on 26th day of July, 2000 the appellant sought in paragraph 76 of the statement of claim the following reliefs against the Respondent:

“(a)    A declaration that the Plaintiff is a staff of the Defendant Company and is entitled to all rights and privileges enjoyed by the Defendant’s staff until duly determined by either party.

(b)     A declaration that the suspension of the plaintiff by the Defendant by a letter dated 1st December, 1998 is wrongful, illegal, null and void.

(c)     An order that the Defendant pays to the Plaintiff forthwith salary and allowances for the months of December, 1998 and thereafter until the Plaintiff is duly determined.

(d)     N100,000,000.00 (One Hundred Million Naira) being general damages for malignment and libel.”

 

The statement of Defence was filed on 17th May, 2001 denying liability. On 30th November, 2005 the appellant sought and was granted leave to amend the statement of claim. The amendment did not however affect the reliefs claimed in paragraph 76(a)-(d) of the claim. On 15th June, 2007 the Respondent applied and was granted leave to deem as properly filed and served an Amended Statement of Defence which had been filed on the same 15th June, 2007. Hearing proceeded on the Amended Statement of claim and Amended statement of defence. Each party called oral and documentary evidence. Learned Counsel submitted written addresses. The learned trial Judge held at pages 181 to 182 of the printed record as follows:

“On the whole I make the following orders:

1. The claim for a declaration the plaintiff is a staff of the defendant company and is entitled to all rights and privileges enjoyed by the defendant’s staff fails and same is dismissed.
2. It is hereby declared that the suspension of the plaintiff by the defendant on the 1st December, 1999 is wrongful, illegal, null and void.
3. The defendant shall pay to the plaintiff admitted allowances due to the plaintiff amounting to N1,845,000.00 (One Million, Eight Hundred and Forty Five Thousand Naira).
4. The claim for N100,000,000.00 general damages for malignment and libel having been abandoned is hereby struck out.”

 

Being aggrieved the appellant filed a Notice of Appeal on 24th July, 2008 the complaints being that the judgment was against the weight of evidence. On 19th April, 2012 the original Notice of Appeal was amended with leave of this Court. Five additional grounds of appeal were added. The appellant’s brief of argument filed on 28th May, 2012 identified four issues as arising for determination from the six grounds of appeal.

Before I delve into the issues I shall recapitulate the facts in controversy.
The appellant’s case is that on 24th May, 1996 the Respondent employed him as a Spy Police Constable in her Security Unit. The letter of appointment was signed by one B.O.B. Duke the Respondent’s Security Advisor. On the request of the Respondent the appellant underwent training at the Police Training School, Calabar, from 10th June, 1996 to August, 1996. Thereafter he was awarded a Certificate of participation. Appellant was deployed to the Respondent to work in their locations. The appellant assumed duty on 3rd June, 1996 as directed by the Respondent’s letter of appointment. The Respondent issued a staff identification paper to the appellant. In the course of time the appellant was suspended from duty on 1st December, 1998 without pay. In the letter of suspension dated 1st December, 1998 the Respondent stated that on 28th November, 1998 at about 2215 hours at QIT main gate, a carton containing 21 AUS automatic voltage switches and twelve connecting boxes were found in a security crew change bus registration No. BC970 LSR conveying afternoon duty men off duty. The Respondent suspected the appellant to have stolen them. The Respondent alleged that the appellant admitted this in a statement made on 2nd December, 1998. The appellant denied the allegation. Appellant denied signing the purported statement of 28th November, 1998 credited to him by the Respondent.

In January, 1999 the appellant appeared before a panel of the Respondent’s Security Department where he was advised to appeal to the Respondent. This the appellant declined, for doing so would amount to an admission of guilt, namely, that he stole those items. The appellant’s Solicitor exchanged correspondences with the Respondent’s solicitors in April, 1999 and 6th May, 1999 respectively. Eventually the Respondent disowned the appellant; that he was not their staff; that he was an employee of the Nigeria Police Force hence any inquiries by the solicitor concerning the appellant should be directed to the Inspector General, Nigeria Police Force and not the Respondent.

The appellant pleaded in paragraph 57 of the Amended statement of claim that he was not furnished with the conditions of service when he was employed by the Respondent. In paragraph 58(i)-(xvi) of the Amended Statement of Claim the appellant pleaded what he considered to be his allowances from 28th November, 1998 when the Respondent suspended him without pay until the determination of his employment. That he was entitled to allowances from 1st December, 1998 to the day of the delivery of judgment and from that day to when the Respondent finally pays. The appellant’s further complaints in paragraphs 60-64 of the Amended Statement of Claim were that the respondent’s letter of 1st December, 1998 published to S.A. Oluokun and B.O.B. Duke, damaged his credit, character and reputation by portraying him as a dubious criminal; a mean fellow; a dishonest man; a person not worthy of being trusted; and a scrupulous fellow. Furthermore, that the libelous publications in the Nigeria Chronicle Newspaper of Friday, 15th October, 1999 at page 15 by one Victor Etim Akpan of Edet, Akwa Ibom State was sponsored by the Respondent or her agents. The appellant set out the defamatory words in paragraph 62 of the Amended Statement of Claim. That because of the libelous publication the appellant lost the opportunity to be employed by Messrs Ekojo Enterprises (Nig.) Ltd. It was also the case of the appellant that he was ejected by his landlord and compelled by dire financial circumstances to sell some of his property to make a living. That the Respondent had the reputation of discriminating against her staff who were Nigerians. This resulted into a petition to the Governor of Akwa Ibom State by the Spy (Security Unit) and another petition to the Chairman, Justice & Human Rights Petition Committee of Akwa Ibom State House of Assembly on 27th January, 2000. The appellant founded his cause of action on these facts and sought the declaratory reliefs set out in paragraph 76(a)-(d) of the Amended Statement of Claim.

On the other hand, the Respondent’s case was that the appellant was at all material times, an employee of the Nigeria Police Force. He was trained and seconded to the Respondent as a Supernumerary Policeman. The terms and conditions of the appellant’s service were as contained in the Police Act, Cap. 359 Laws of the Federation of Nigeria, 1990. The status of the appellant was confirmed from the office of the Inspector General of Police in a letter dated 5th December, 1999. That the identity card issued to the appellant did not confer on him the status of an employee. It was to allow the appellant access to the Respondent’s facilities in the course of his duties as a supernumerary Policeman. Furthermore, the appellant did not undergo an interview as an employee of the Respondent. The purpose was to determine the appellant’s physical and mental capacity as a security officer. The appellant was also gratuitously paid allowances just like any other Supernumerary Policemen to encourage him in the performance of his duty but not as arising out of a master/servant relationship. The Respondent had the right to suspend the appellant while discharging his duties. In paragraph 11 of the Amended Statement of Defence the Respondent pleaded that there is no agreement setting forth the terms of appellant’s employment with the Respondent. Victor Akpan who published or caused to be published the letter complained of was not an agent of the Respondent; neither did the publication constitute libel nor bear the meaning pleaded in paragraph 61 of the Amended Statement of Claim. The Respondent also pleaded that the suit by the appellant was frivolous misconceived, speculative and should be dismissed with substantial cost.

In the consideration of the issues for determination I shall treat issue one separately. Issues (ii), (iii) and (iv) do overlap hence I shall consider them together. That being so I have reduced the four issues set down for determination into two main issues.

APPELLANT’S ISSUES FOR DETERMINATION:

“(i)     whether there was a valid statement of defence before the trial Court?

(ii)     whether there was a valid contract of employment between the appellant and the respondent hereof?

(iii)    Whether there was any legal basis for the trial court to admit Exhibit “7” in evidence and accord it probative value in the absence of any valid pleading supporting it?

(iv)    whether in the circumstance of the instant appeal the respondent in employing the appellant was acting as an agent of the Inspector General of Police of the Federal Republic of Nigeria?”

 

RESPONDENT’S ISSUES FOR DETERMINATION:

The Respondent’s learned counsel identified three issues for determination:

“1.     Whether by the provision of Police Act Cap 359, LFN, 1990 a person serving as a Supernumerary Police in an organization can be said to be a staff of the organization? (Formulated from Ground three).

2. Whether an offer of appointment as a Supernumerary Police without more creates a contract of employment between the Appellant and the Respondent Formulated from Ground five).

3. Whether substantial justice should suffer due to technicalities that do not affect the substantive suit? Formulated from ground two).”

 

ISSUE ONE:

The complaint in issue one is that there is no evidence that the person who settled the Amended statement of Defence and signed same was a legal practitioner. It not this will contravene the provisions of Order 25 rule 4(1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 which provides that:

“4(1) Pleadings shall be signed by a legal practitioner or by the party if he sues and defend in person.”

Learned Counsel argued that the employment of the word “shall” in Order 25 rule 4(1) of the Rules supra makes it mandatory that where a party is suing or defending by a legal practitioner, only that legal practitioner is empowered to sign the pleadings. Counsel urged this Court to hold that in the absence of evidence that a Legal Practitioner signed the Amended Statement of Defence there was no Defence before the lower court. The facts pleaded in the Amended Statement of Claim remained unchallenged. That the Amended Statement of Defence be declared a nullity. Issue one should be resolved in favour of the appellant. Counsel relied on the following authorities, Okafor vs. Nweke (2007) All FWLR (pt.368) 1016; Thomas vs. Maude (2007) ALL FWLR (pt.361) 1749; New Nigeria Bank vs. Denclag Ltd. (2004) All FWLR (Pt.228) 600 and Oketade vs. Adewunmi (2010) All FWLR (Pt.526) 511.

Learned Counsel to the Respondent argued that the authorities from the Court of Appeal and the Supreme Court on the issue were conflicting. That both the Supreme Court and the Court of Appeal have held that none compliance with the provisions of Order 25 rule 40 of the Rules (supra) does not nullify the processes. Counsel cited New Nigerian Bank Plc vs. Denclag Ltd. (2004) All FWLR (Pt.228) 606 at 633; Buhari vs. Yabo (2006) 17 NWLR (Pt.1007) 162 and Cole vs. Martins (1968) All NLR 161 as authorities in conflict with the decisions cited by learned Counsel to the appellant. That where there is such a conflict, the lower court is at liberty to pick and choose which of the decisions he will follow. Counsel cited Chime v. Elikwu (1965) NMLR 71; Adekanye vs. Comptroller of Prisons (2002) 12 NWLR (pt.682) 563; Ecu-Line Nu v. Adelekan (2001) 10 NWLR (Pt.721) 261 and Guarantee Trust Bank Plc v. Fadco Industries Ltd. (2007) 7 NWLR (Pt.1033) 307. The Court was urged to follow the decision in Buhari vs. Yabo (supra) and Cole vs. Martins (supra) which held the contrary view. It was further contended that in Okafor vs. Nweke (supra) the Supreme Court struck out the Notice of Appeal on the grounds that no injustice would be caused to the appellant. But in this appeal the matter had proceeded to hearing and judgment. Striking out the Amended statement of Defence would not afford the Respondent the opportunity to regularize the defective Amended Statement of Defence. That the error is that of Counsel and not the party which should not be visited on the Respondent. Reference was made to Bowaje v. Adediwura (1976) 6 SC 143 and Isiaka v. Ogundima (2006) 13 NWLR (Pt.997) 401. Counsel contended that gone are the days the parties relied on technicalities to defeat justice. Counsel cited Adelusola v. Akinde (2004) 12 NWLR (Pt.887) 295; Fagunwa v. Adibi (2004) 7 NWLR (Pt.903) 544. Counsel argued that the pleadings were not defective in that “PP” which is abbreviations for “propria persona” accompanied the signature which means “in his proper person.” The effect was that the Amended Statement of Defence was signed on behalf of a legal practitioner. The signature represents that legal practitioner. Counsel urged that issue one be resolved against the appellant.

I shall begin by holding that Order 25 rule 4 (1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 is very clear, unambiguous and does not require any manipulative interpretation to arrive at the intention of the law maker or giver. The word “shall” in the provision of Order 25 rule 4th) of the Rules (supra) is equivalent to “must” see Edewor vs. Owegba (1987) 2 SC 29 at 103; Oloyo vs. Alegbe (1983) 2 SCNLR 35; Katto vs. CBN (1991) 12 SCNJ 1 at 17 and Chief P.I. Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329. The effect of appending a signature on a document is to vouch for its authenticity; it is an assurance that the party signing is to be bound by the document or process. See Chrisdon Industrial Ltd. vs. A.I.B. Ltd. (2002) FWLR (Pt.128) 1355; Okoye vs. Santili (1994) 4 SCNJ (pt.2) 333; Zein vs. Geidam (2004) ALL FWLR (pt.237) 457 at 481 paragraph “G”-“H” and Allied Bank of Nigeria vs. Akubueze (1997) 7 SCNJ 116. The learned authors of Black’s Law Dictionary, 9th edition, page 1507 defines the verb “sign” as “1. To identify (a record) by means of a signature, mark, or other symbol with the intent to authenticate it as an act of agreement of the person identifying it … 2. To agree with or join.” The word “signature” is further defined (p.1507) as “1. A person’s name or mark written by that person or at the person’s direction … 2. Commercial law… Any name, mark, or writing used with the authenticating a document.” The name of the Chamber that settled the Amended Statement of Defence is:

“PP Kayode Sofola & Associates 9 Ondo Street, Osborne Foreshore, Estate, Ikoyi, Lagos.”

The party suing is Bernard Ngun and the party defending is Mobil Producing Nigeria Unlimited. The Chambers that represented the Respondent is “PP Kayode Sofola & Associates.” But what is the name of the legal practitioner who scribbled a signature on top of the entry “PP. Kayode Sofola & Associates, 9, Ondo Street, Osborne Foreshore Estate, Ikoyi, Lagos?” That is not stated. Did the person sign as a Legal Practitioner or as an associate in the Chambers of Kayode Sofola & Associates? There is no answer. From the address on the Amended Statement of Defence it is crystal clear that Kayode Sofola is not alone in that chambers. In legal jargon the word “associate” is defined in Black’s Law Dictionary, 9th edition, page 141 as “1. A colleague or companion. 2. A junior member of an organization or profession; especially, a lawyer in a law firm, usually with fewer than a certain number of years in practice, who may, upon achieving the requisite seniority, receive an offer to become a partner or shareholder… 3. …An officer of a common-law Court responsible for maintaining the Court’s records, attending jury trials, and entering verdicts…” Again in Osborn’s concise Law Dictionary, 9th edition, by Sheila Bone, page 41 “associates” are “officers of the common law courts, who were appointed by and held office at the pleasure of the Chief Justice or Chief Baron of each Court, and whose duties were to keep the records of the Court, to attend nisi prius (of. v.) sitting, make out the list of cases, conduct the jury ballot, note the judgment, make up the postea (or certificate of the result of trial) and deliver the record to the proper party. Now, associates are officers of the Queens Bench Division of the High Court.” Litigation clerks or secretaries in a Law Firm can be “associates” if they perform the duties associated with legal practice. Similarly, “associates” could be the Legal Practitioners in a Law Firm carrying on the Practice of Barrister and Solicitor of the Supreme Court. That is why the person signing the pleadings must indicate in very clear terms the capacity in which it is signed. Had the law maker intended that pleadings could be signed “PP” or by “associates” that would have been unambiguously stated in Order 25 rule 4 (1) of the Rules supra. Some Litigation Secretaries are so experienced or knowledgeable that they settle pleadings, draft motions, example bail applications and file Notices of Appeal, etc. Nevertheless they have not been called to the Bar. Some Legal Practitioners go to the extent of allowing their secretaries to write or sign legal documents on their behalf which are subsequently filed in the Court. I think it is to forestall such “associates” from signing pleadings that the law maker came up with the idea of Order 25 rule 4(1) of the Rules supra. In construing mandatory provisions in the Rules of the Court or a statute, it is the express intention of the law maker that is of paramount consideration. See Osho v. Philips (1972) 1 All NLR (pt.1) 276 at 285; Odutola Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt.994) 321. The law is well settled: the express mention of one thing in a statute or rule of Court automatically excludes others. See Udoh vs. Orthopaedic Hospital Management Board & Ors. (1993) 7 SC (Pt.2) 436 at 444; Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (pt.118) 646 and Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.8) 280. The decisions of the Supreme Court which struck out pleadings or Notices of Appeal that were signed by a person not shown to be a party or a legal practitioner have binding effect on this Court. This was made clear in Osakue v. F.C.E. (Technical) Asaba (2010) 10 NWLR (Pt.1201) 1 per Ogbuagu, JSC at page 29 of the judgment where his Lordship held that:

“…I wish to stress the fact that in the hierarchy of the Courts, where there are conflicting judgments, the Court of Appeal, is bound by the latter or last decision of this court. It has no choice however brilliant and knowledgeable the justice of that Court may think or hold that they are more than this Court…”

On when a subordinate court is at liberty to pick and choose which Supreme Court’s conflicting judgments should be applied in any given circumstances, Ogbuagu, JSC held at page 36 paragraph “A”-“C” as follows:

“Lastly and in summary, the legal position is that the Court of Appeal and indeed all lower courts are bound by the decision of this Court. However, where the principles enumerated in any decision of this court, is not relevant or applicable to the issue or issues arising for determination in the case before the Court of Appeal or lower court that is a different matter or a different ball game. See the case of Osho v. Foreign Finance Corporation (supra). Where there is no discernible ratio decidendi common to the decisions of a superior court and this court has handed down conflicting decisions, the lower court or a court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct. See N.E.P.A. & Ors. V. Mrs. Onah (supra) and Okolie Chime & Anor. V. Ofili Elikwu & Anor (1965) NMLR 71…”

Fabiyi, JSC held at page 39 paragraphs “B”-“C” of the judgment that:

“…I do not see the rationale for the fuss generated by the Court of Appeal, Ilorin Division in its decision in University of Ilorin v. Adeniran in preferring to follow the decision of this court in O.H.M.B. vs. Mallam Garba and brushing aside the latter decision of this Court in Odutola v. University of Ilorin. In a similar situation in Atolagbe v. Awuni & Ors. (1997) 7 SCNJ 1 at 20, 24 and 35; (1997) 9 NWLR (pt. 522) 536, this court was not happy with the stance of the trial Judge who engaged in a similar prank.”

The effect is that the Amended Statement of Defence is a nullity contrary to the holding of the learned trial Judge at page 161 lines 17 to page 162 tines 1-11 of the printed record that:

“In my view the case of Okafor vs. Nweke (supra) is distinguishable from the instant case. In Okafor’s case, the signature was signed on top of J.H.C. Okolo SAN & Co. with any sign such as “PP” as in this case which means that the signature belonged to J.H.C. Okolo SAN & Co. which of course is not a legal practitioner recognized by Section 2(1) of the Legal Practitioners Act, Cap. 207 Laws of the Federation of Nigeria, 1990 which provides:

“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll.”

But in the present case, the signature was signed PP: Kayode Sofola’s Chambers – “PP” is an abbreviation for “propria persona” which means in his proper person, in his own person. It also means by proxy, by one acting as an agent with special powers. See Black’s Law Dictionary, 7th edition. By reason of the abbreviation “PP”, the signature represents a known legal practitioner who has been called to the Bar and duly enrolled to practice as a Solicitor and Barrister and has only signed as an agent of the Law Firm of Kayode Sofola’s Chambers. That in my view is the saving grace to the statement of defence filed on the 17th May, 2001. I therefore hold that the statement of defence filed on the 17th May, 2001 is competent.”

A decision based on the Amended Statement of Defence stands vitiated. See Bello vs. INEC (2010) 8 NWLR (Pt.1196) 342; Okoye vs. Nigeria Construction Furniture Co. Ltd. (1991) 6 NWLR (pt.199) 501 at 539 and Benjamin Macfoy vs. UAC Ltd. (1961) 5 WLR 1405. I resolve issue one in favour of the appellant.

ISSUES (II), (III), and (IV):

The argument by learned counsel to the appellant on these issues is that the Nigerian Police merely trained him; they did not employ him as a Spy Police Constable. Reference was made to the pleadings, Section 18 of the Police Act, Exhibit “1” and the case of Mobil Producing Nigeria Unlimited vs. Udo Tom Udo (2001) ALL FWLR (Pt.482) 1177. That the Nigeria Police was not a party to the contract of employment and had no power whatsoever to terminate or discipline the appellant if he committed any crime. There was no legal basis for the learned trial Judge to have admitted Exhibit “7“ in evidence as it had no probative value in the absence of any pleading supporting it. That whatever was contained in Exhibit “7” was made ex-post facto, namely, years after the appellant and the respondent had concluded the contract of employment. Counsel cited Mobil producing Nigeria Unlimited vs. Otoabasi Effiong (Unreported) Appeal No.CA/C/204/2009 delivered by the Calabar Division of the Court of Appeal on 31st May, 2011. Learned Counsel urged this Court to resolve issues (ii), (iii) and (iv) in favour of the appellant and to allow the appeal.

The Respondent’s learned Counsel referred to the provisions of Section 18 of the Police Act (supra) as authority that the appellant was an employee of the Nigeria Police Force. That no servant/master relationship arose simply because of the appellant’s deployment to the Respondent as a Supernumerary Police Spy, citing Omenka v. Morrison (2000) 13 NWLR (pt.683) 147 at 154 and Mobil Producing Nigeria Unlimited vs. Asuah (2001) 16 NWLR (Pt.740) 723 at 767. Counsel urged that issues (ii), (iii) and (iv) be resolved against the appellant and the appeal should be dismissed.

Employer and employee relationship exists where a worker is employed under a contract of employment, i.e. a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law.

The learned authors of Osborne’s concise Law Dictionary (supra) at page 103 have defined “Contract” as: “An agreement enforceable at law. An essential feature of contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise and acceptance. Contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it…” The relationship of the appellant and the respondent was not governed by an oral agreement but certainly, in writing. For a contract to come into existence there must be an offer even if made to the whole world. See Carlil v. Carbolic Smoke Ball Co. (1891-4) All E.R. Rep.127 where Lindley L.J., held at pages 129-130 that even in advertisement cases, “…The offer is to anybody who performs the conditions named in the advertisement anybody who does perform the conditions accepts the offer. I take it that if you look at this advertisement in point of law, it is an offer to pay E100 to anybody who will perform these conditions, and the performance of these conditions is the acceptance of the offer.” There must be an unqualified acceptance from the offeree, in this case, the employee for the contract to be complete and become legally binding and enforceable. See UBA Ltd. V. Tejumola & Sons Ltd. (1988) 5 SCNJ 73. In case of breach of contract only the party injured can sue. See Airoe Construction Co. v. University of Benin (1985) 1 NWLR (Pt.2) 287 at 292; Hill vs. C.A. Parsons & Co. Ltd. (1971) 3 All E.R. 1345; Ikpeazu vs. ACB Ltd. (1965) NMLR 379; LSDPC v. NL & S Food Ltd. (1992) 5 NWLR (pt.244) 653 and N.L.N.G. Ltd. v. A.D.I.C. Ltd. (1995) 8 NWLR (pt.416) 677. Termination of the relationship between an employer and an employee can be possible only by the parties to the contract. See Union Beverages Ltd. V. Pepsicola International Ltd. (1994) 2 SCNJ 157. In questions of dispute as to whether there was an existing contract, the onus is on the party asserting to prove offer and acceptance. See Council of Yaba Tech. vs. Nigeria (1989) 1 NWLR (Pt.95) 99; Biobaku v. Light etc (1986) 5 NWLR (Pt.39) 42.
There is no implied power on an employer to suspend an employee except by agreement or statute. See Adekunle vs. W.R.F.C/(1963) WRNLR 6; Hanley vs. Pease Partners (1914-15) All E.R. Rep.984. The express terms in the agreement or statute has to be construed to determine the intention of the parties. See Ihezukwu v. University of Jos (1990) 21 NSCC 80 at 88 lines 26-35; Morohunfola v. College of Technology (1990) 7 SCNJ 51; Shell B.P. Petroleum Development Co. of Nigeria Ltd- & 5 ors. vs. M.S. Onasanya (1976) 6 SC 57. In NIDD v. Olalomi Industries Ltd. (2002) 5 NWLR (pt.761) 532 at 555 paragraphs “G” the Court held that:

“…a document speaks for itself and that oral testimony is inadmissible to vary, add to or take away from the contents of the document.”

No oral evidence shall be admitted in construing Exhibit “1” or Section 18 of the Police Act (supra) to determine the relationship between the appellant and the respondent. In Mandilas & Karaberis Ltd. v. Otikiti (1963) 1 All NLR 22 Bairamian F.J., held at page 26 that:

“…When a contract is reduced into writing, the writing gives the terms agreed upon…”

See also Olaniyan & ors. V. Unilag (1985) 1 ALL NLR 314 or (1985) 2 NWLR (pt.9) 599. The appellant tendered the letter of appointment which was marked Exhibit “1”. The exhibit reads as follows:

“MOBIL PRODUCING NIGERIA UNLIMITED
Qua Iboe Terminal
May, 24, 1996
MR. BERNARD E. NGUN
CO/O ENO I.E. IBIANG
P&E GOVERNOR’S OFFICE,
CALABAR.

Dear Sir,

OFFER OF APPOINTMENT AS A SPY POLICE CONSTABLE

You are hereby offered a place in the Security Unit of Mobil Producing Nigeria Unlimited (MPNU) as a Spy Police Constable. Your appointment takes effect from 3rd June, 1996.

You will be required to pass a Medical Examination conducted by Mobil Doctors. You are advised to report with two passport photographs to Mr. I.S. Akwang (ACP) on 3rd June, 1996 at 8am at QIT for attestation and documentation. Also provide yourself with two pairs of white shorts, two pairs of white T-shirts and a pairs of white canvass.

Your training programme is being arranged with the Police Training School, Calabar and may commence on 10/6/1996.

Please sign and return the duplicate copy to this as confirmation of your acceptance of the offer.

Signed
B.O.B. Duke
Security Advisor.”

Exhibit “1” offered the appellant appointment as a Spy Police Constable with effect from 3rd June, 1996. Training was only arranged with the Police Training School, Calabar after the offer might have been accepted from 3rd June, 1996. The training was to commence on 10th day of June, 1996. The appellant was politely requested in Exhibit “1” to, “Please sign and return the duplicate copy to this confirmation of your acceptance of the offer.” My humble view is that upon signing and returning of the duplicate copy of Exhibit “1” to the Respondent, this constituted the acceptance of the offer of appointment by the Respondent, bringing into existence a binding and enforceable contract of service between the appellant and the Respondent. The appellant underwent the training and received Exhibit “2” which reads as follows:

“POLICE TRAINING SCHOOL
CERTIFICATE OF PARTICIPATION
THIS IS TO CERTIFY THAT

No. 675, PC Bernard Ngun participated and successfully completed a three months Police Basic Training and Guard Duties at Police Training School,
Calabar.

Between June 1996 to August 1996
And is hereby awarded this certicate
Awarded this 30th Day of August, 1996
Signed

1. MFON ESSIET (ASP)
   COMMANDANT.”

Exhibit “1” and “2” did not emanate from the Nigeria Police Force but from the office of the Respondent.

An “appointment” is the designation of a person for a job or duty, especially the naming of someone to a non-elected public or private office. It does not lie in the mouth of the Respondent to deny that the appellant was not her employee. The learned counsel to the Respondent has made heavy weather of the provisions of the Police Act, Cap. 359, Laws of the Federation of Nigeria, 1990 to the effect that the appellant was an employee of the Nigeria Police Force. The answer to this submission lies in the provisions of Section 18 of the Police Act (supra) which reads as follows:

“18(1) Any person (including any government department) who desires to avail himself of the services of one or more Police Officers for the protection of property owned or controlled by him may make application therefore to the Inspector-General, stating the nature and situation of the property in question and giving such other particulars as the Inspector-Genera; may require.

(2)     On an application under the foregoing subsection the Inspector-General may, with the approval of the President, direct the appropriate authority to appoint as Supernumerary Police Officers in the Force such number of persons as the Inspector-General thinks requisite for the protection of the property to which the application relates.

(3)     Every Supernumerary Police Officer appointed under this section:-

(a)     shall be appointed in respect of the area of the police province or, where there is no police province, the police district or police division in which the property which he is to protect is situate;

(b)     shall be employed exclusively on duties connected with the protection of that property;

(c)     shall, in the police area in respect of which he is appointed and in any police area adjacent thereto, but not elsewhere, have the powers, privileges and immunities of a police officer; and

(d)     subject to the restrictions imposed by paragraphs (b) and (c) of this subsection and to the provisions of Section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.

(4)     Where any Supernumerary Police Officer is appointed under this section, the person availing himself of the services of that officer shall pay to the Accountant-General:-

(a)     on the enlistment of the officer, the full cost of the officer’s uniform; and

(b)     quarterly in advance, a sum equal to the aggregate of the amount of the officer’s pay for the quarter in question and such additional amounts as the Inspector-General may direct to be paid in respect of the maintenance of the officer during that quarter;

and any sum payable to the Accountant-General under this subsection which is not duly paid may be recovered in a summary manner before a magistrate on the complaint of any Superior Police Officer:

Provided that this subsection shall not apply in the case of an appointment made on the application of a department of the Government of the Federation.

(5)     Where the person availing himself of the services of any Supernumerary Police Officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal Territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a state, to the commissioner of police of that state; and on the expiration of such notice the services of the Supernumerary Police Officer in question shall be withdrawn.

(6)     Where the services of a Supernumerary Police Officer are withdrawn in pursuance of subsection (5) of this section in the course of a quarter for which the sum mentioned in subsection (4)(b) of this section has been paid to the Accountant-General, the Accountant-General shall pay to the person by whom that sum was paid a sum which bears to that sum the same proportion as the unexpired portion of that quarter bears to the whole of that quarter.

(7)     In this section, “the Accountant-General” means the Accountant-General of the Federation; “government department” means any department of the Government of the Federation or of the Government of a State; and “quarter” means any period of three months: and any reference in this section to the person availing himself of the services of a Supernumerary Police Officer appointed under this section is a reference to the person on whose application the officer was appointed or, if that person has been succeeded by some other person as the person owning or controlling the property for the protection of which the officer in question was appointed, that other person.

19(1)          The appropriate authority may, at the request of any superior police officer, appoint any person as a supernumerary police officer in the Force with a view to that person’s employment on duties connected with the administration or maintenance of premises occupied or used for the purposes of the Force, but shall not do so in any particular case unless satisfied that it is necessary in the interest of security or discipline that persons performing the duties in question should be subject to the provisions of this Act relating to discipline.

(2)     Every supernumerary police officer appointed under this Section:-

(a)     shall be appointed in respect of the area of the police area command or where there is no police area command, the police division in which the premises in connection with whose administration or maintenance he is to be employed are situated;

(b)     shall be employed exclusively on duties connected with the administration or maintenance of those premises;

(c)     shall, in the police area in respect of which he is appointed, but not elsewhere, have the powers, privileges and immunities of a police officer; and

(d)     subject to the restrictions imposed by paragraph (b) and (c) of this subsection and to the provisions of Section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to provisions thereof relating to discipline.”

There is no evidence that the appellant was appointed a spy police constable or a supernumerary police officer under the provisions of Section 18(1)(2), (3), (4) (5) and (6) of the Police Act (supra). Only a Supernumerary police officer appointed under the provisions of Section 18(1)-(3)(a)-(d), “…shall be a member of the Force for all purposes and accordingly shall be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.” See Section 18(3)(d) of the Act (supra) and Okon Johnson & ors. V. Mobil Producing Nig. Unlimited (2009) All FWLR (Pt.530) 1331 and Mobil Producing Nigeria Unlimited vs. Otoabasi Effiong (unreported) Appeal No.CA/C/204/2009 delivered by the Calabar Division of the Court of Appeal on 31st day of May, 2011. The learned trial Judge commented on Exhibit “7” as follows:

“Commencing on the status of a supernumerary policeman such as the plaintiff, the police authorities in Exhibit “7” said:

“Employment status is as detailed out in Sections 18-22 of the Police Act Cap.357 (sic) while Administrative processes regulating the service are spelt out in FAI No.26, FO No.436 and Police Affairs circulars No.NP/1149/S.1/Vol.1/22 of 24/5/93. The fact remains that supernumerary policemen and women are trained by the police for deployment on request to companies. They are under the control of the Inspector-General of Police and subject to police disciplinary rules as provided for in the police Act and Regulations. They have the powers, privileges and immunities of police officers.”

 

Nothing can be more unequivocal and direct to the point as the above comments by the Police. To further confirm the status of the plaintiff, Exhibit “63” from the officer in-charge of the Police Training School, Calabar had this to say:

Police Training School,
Otop Abasi Street,
Calabar.
08/07/1999

CZ:6375/CRS/PTS/Vol.1/2
Ekojo Enterprises Nig. Ltd.,
86 Calabar Road,
Four Corners,
Cross River State.

RE-LETTER OF ENQUIRY

I refer to your letter dated 11/06/99 on the subject matter and hereby state as follows: Mr. Bernard E. Ngun was recruit at Eket by Mobil Producing Nigeria Unlimited and sent on the 3rd June, 1996 for three months Police Basic Training on Security duties only.

He successfully completed the three months course as Supernumerary Police (Spy) and was allocated with number 675 and returned to Mobil Nigeria Unlimited for deployment please. (Underlining is mine).

SGD.
MR. MFON ESSIET (ASP)
The Officer In-charge
Police Training school,
Calabar.”

Notwithstanding the clear contents of Exhibit “3” His Lordship held that:
The Exhibit bring to force the fact that it was the police that allocated the plaintiff with Force number which is No.675. This number appears in Exhibit “4” and he is designated as “PC” meaning Police Constable.” The plaintiff is addressed in Exhibit “2” as No.675 Bernard Ngun. The truth remains that the plaintiff was recruited by the defendant for the Nigeria Police Force. He was for all purposes a member of the Nigeria Police Force and subject to the Police Control and discipline, enjoying all rights, privileges and immunities of members of the Police Force. Having so found as above, it would amount to this Court forcing the defendant to employ as its staff somebody whose services the defendant does not require if relief (a) of paragraph 76 of the amended statement of claim is granted by this Court. Accordingly claim (a) in paragraph 76 of the amended statement of claim is refused, and same is dismissed.”

Nowhere did Exhibit “3” state that the appellant was recruited by the Respondent for the Police Force. Neither did the Respondent plead that they recruited the appellant for the Police Force. Every Trial Court is bound by the pleadings. See African Continental Seaways Ltd. V. Nigerian Dredging Road & General Works Ltd. (1977) 5 SC 235 at 250; Tenco Engineering Co. Ltd. vs. S.B.N. Ltd. (1995) 8 NWLR (Pt.397) 607. In my humble view the above findings of the learned trial Judge would have been justified if the appellant had been offered appointment under the provisions of Section 18(1)-(6) of the Police Act, Cap (supra). But in the face of Exhibit “1” the findings of the learned trial Judge cannot be supported having regard to the weight of documentary evidence, namely, Exhibit “1”.

On the whole this appeal is allowed. I hereby make the following orders in favour of the appellant, namely:

1. That at all material times in question the appellant was an employee of the Respondent and was entitled to all the rights and privileges enjoyed as an employee of the Respondent upon termination of appointment.
2. That the declaration by the lower Court that the appellant’s suspension from 1/12/1998 was wrongful, illegal, null and void having not been contested by way of a cross-appeal, is upheld by this Court.
3. That the Respondent shall pay to the appellant forthwith the admitted salary and allowances amounting to N1,945,000.00 (One Million, Eight Hundred and Forty Five Thousand Naira) which the learned trial Judge found proved.
4. That I assess the cost of this appeal at N50,000.00

UZO I. NDUKWE-ANYANWU, J.C.A.: I read in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and conclusion however I must lend my voice to one of the issues distilled.

It has been stressed over time, who should sign pleadings See O 25 R 4(1) of the Akwa Ibom State High Court (Civil Procedure Rules 1989) which provides that:

4(1)   “pleadings shall be signed by a legal practitioner or by the party if he sues and defends in person”

The word shall is mandatory and does not allow for any form of interpretation. Where a legal practitioner fails to sign on his name, the pleadings will come to nothing. It must be emphasized that the name of the legal practitioner must be imprinted before he signs.

Legal practitioners have often fallen prey to signing on top of the name of their chambers.

Non-compliance of O 25 R 4(1) is fatal to the Proceedings. See Okafor v. Nweke (supra). For this and the fuller reasons in the lead judgment I too must allow this appeal. I abide by all the orders contained in the lead judgment and adopt them as mine.

ONYEKACHI A. OTISI, J.S.C.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in complete agreement with both the reasoning and conclusion. The issues raised for determination have been exhaustively resolved, and, I have nothing further to add. I abide with the Orders made, including the order as to costs.