Femi Falana
11 August 2008
opinion
Lagos — Until very recently, the Federal Government did not constitute the Police Service Commission (PSC) since the term of office of the former members expired over two years ago. Issues of promotion and discipline in the Nigeria Police Force were taken over and handled by the Inspector - General of Police (IGP) as was the practice in the past. In the process of exercising such powers several police officers who violated the law were disciplined while 140 police officers were promoted.
Among the lot was D.C Haz Iwendi who was promoted to the post of Police Commissioner and posted to the Kaduna Police Command. In the course of discharging his duties loyally, he died of heart attack. Some of the other officers demoted last week were retired in the last one or two years and paid their terminal entitlements on the basis of the promotions that have just been cancelled by the PSC.
There is also the case of Mr. Nuhu Ribadu who was promoted to the ranks of Commissioner of Police and Assistant Inspector-General of Police (AIG) during the period. To justify his removal as the Chairman of the Economic and Financial Crimes Commission (EFCC) last December, the Presidency and police authorities stated that he had to undergo the training at Kuru to justify his rank as AIG. As the programme is rounding up he has just been demoted to the rank of Deputy Commissioner of Police.
To compound the illegality of the exercise, it has been suggested that Ribadu should be dismissed from Kuru forthwith. As there is no provision in the National Institute of Policy and Strategic Studies Act, which prescribes the rank of AIG as the minimum admission requirement for police officers, the management of the school should not truncate Ribadu's training since the Nigerian Police Force has fully paid for the course from public funds. In any case, why are the other officers affected by the exercise not being asked to relinquish the positions assigned to them on the basis of the promotions?
The purported reduction in the rank of Ribadu and 139 other police officers by the PSC on the ground that the police authorities who promoted them did not follow "due process" is illegal and unconstitutional as they cannot be held vicariously liable for the said breach of procedure. Having been made to wear their ranks, given statutory responsibilities and paid salaries and other allowances in line with the promotions the PSC cannot, in law, demote such officers by virtue of Section 151 of the Evidence Act which provides as follows:
"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person's representative in interest, to deny the truth of that thing".
Since the said officers have acted on the fact of their promotion, the police authorities are estopped from denying the fact of such promotion. In Oilfield Supply Centre Ltd. v. Johnson (1987) NSCC 725, the appellant was incorporated in Nigeria. The respondent, an Australian, was appointed the managing director of the company. There were five shareholders of the company including the respondent. The company successfully developed some swampy area into a port complex in Warri. In November 1976, the Federal Government acquired the port complex and paid N8, 410,850.00 as compensation.
The respondent who was in Australia at the time was excluded in the sharing of the fund. He returned to Nigeria and filed winding up proceedings at the Federal High Court. The company challenged the action on the ground that the respondent was employed as the managing director of the Company in violation of the Immigration Act as the company did not apply for expatriate quota for him. The preliminary objection was dismissed by the High Court on the ground that the appellant was estopped from denying the interest and status of the respondent in the company.
Both the Court of Appeal and the Supreme Court upheld the decision of the learned trial judge. In the leading judgment of the apex court Kayode Eso JSC held:
" I cannot conclude this judgment without showing my alarm at the callousness and dishonesty of all the other shareholders, except Asemota who showed himself to be a man of honour. Here was a stranger in our land, who used his brains and expertise to establish a port-complex, when the going was rough, Chief Idugboe fell out with the others and took them to court. As the literature author put it - Things fell apart. Idugboe was no longer at ease - It was the respondent that championed the cause of the company. He stood firm, for he believed in what he created. The government stepped in, acquired the complex, over eight million naira rolled in, and the sight of money brought the combatants together. Meanwhile, the respondent was in Australia. It was easy for these other shareholders to exclude him from the booty. They have benefited from his brain but he was not good enough to participate in the sharing of the windfall. To say the least, it is turpid. And it stinks".
In Obafemi Awolowo University v. Dr. A.K. Onabanjo (1991) 5 NWLR (PT 193) 549, the staff conditions of service provided that confirmation of employment of a university lecturer shall be in writing after a three-year probationary period. The respondent's appointment was not confirmed in writing after the probationary period but was allowed to continue to teach for three months thereafter. The appellant turned round to remove him on the ground that his appointment had not been confirmed in writing. The purported termination of his appointment in the circumstance was set aside by the Oyo State High Court. On appeal, the judgment was confirmed. Mustapha Akanbi JCA (as he then was) who read the leading judgment stated inter alia:
"Allowing him to continue to work and earn his salary, gave the impression that he was in for another term of office, as an officer who has satisfactorily completed his probationary period and has been re-appointed".
Applying the above decisions of both the Supreme Court and the Court of Appeal to the controversial demotion of the aforesaid police officers the police authorities are ESTOPPED from denying the existence of their promotion. Furthermore, EQUITY will not allow the PSC to hide under non-compliance with "due process" by the police authorities to cancel promotions that had been accepted and acted upon by the affected police officers due to no fault of theirs.
It is also pertinent to point out that the statutory functions of the PSC include promotion and discipline of serving police officers. The power of the PSC to demote or reduce the rank of any police officer is a punishment which can only be imposed on such officer after he/she has been tried and proven to have committed an offence or gross misconduct.. In such a situation the officer affected must be given the opportunity to make a representation to the administering authority before that authority makes the decision affecting the person by virtue of Section 36(2)(a) of the 1999 Constitution. Since the PSC did not accuse any of the 140 police officers of any misconduct whatsoever talk less of giving them a query, their purported demotion can not be allowed to stand under a regime that claims to operate under the rule of law.
- Falana is a Lagos-based lawyer
Be the first to Write a Comment!
Copyright © 2008 This Day. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
