IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK
DATED 11TH DAY OF JANUARY, 2023
NICN/AK/14/2021
BETWEEN
MISS OMOLOLA OLAJIDE …………………………..CLAIMANT
AND
1. THE NIGERIAN POLICE FORCE
2. INSPECTOR GENERAL OF POLICE
3. THE POLICE SERVICE COMMISSION` ………………..DEFENDANT
REPRESENTATION:
Funmi Falana Esq. with him Abiodun Ajisola Esq. for the claimant.
T.S. Abisagbo Esq. with A.M. Olaseinde Esq. for the 1st & 2nd defendants.
No appearance for the 3rd defendant.
JUDGMENT
INTRODUCTION
1. By a general form of complaint filed on the 3/01/2021, the claimant seeks for five reliefs in paragraph 13 of her statement of facts as follows:
a. A Declaration that the Claimant’s purported dismissal from the employment of the 1st and 3rd defendants via a signal dated 20th January 2021 is null, void and unconstitutional as it violates Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 2 of the African Charter on Human and People’s Rights.
b. A Declaration that the provisions of Regulation 127 of the Police Act which is against women police getting pregnant before marriage but does not apply to men police impregnating women before marriage is discriminatory, illegal and unconstitutional as it violates the Claimant’s Right under Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and People’s Rights and the said provision should be annulled.
c. A Declaration that the Claimant is still in the employment of the 1st and 3rd Defendants.
d. An Order directing the Defendant to reinstate the claimant to her status as Constable without prejudice to her entitlement and promotions which may have accrued to her during the period of her purported dismissal.
e. An Injunction restraining the defendants from further interfering with the Claimant’s rights, privileges and performance of her duties as a constable with the 3rd defendant.
2. The 1st and 2nd defendants filed a memorandum of appearance on the 17/01/2022 and a Statement of Defence via a motion of 17/01/2022.
3. The 3rd defendant did not file any process despite being served and did not participate in the proceedings.
4. Both parties agreed to hearing the case on Record pursuant to Order 38 Rule 33 of the National Industrial Court Rules,2017.
FACT OF THE CASE
5. The claimant was offered appointment by the 1st and 3rd Defendant as a Constable on 28/10/2019 and passed out of the Police Training School on 24/04/2020. While in the service, she was said to become pregnant though still unmarried, she was dismissed based on regulation 127 of the police Act which forbids an unmarried woman police officer from getting pregnant. The claimant is challenging her dismissal on the ground that Regulation 127 of the Police Act which is against women police officers getting pregnant before marriage but does not apply to male police officers impregnating women before marriage is discriminatory.
CASE OF THE CLAIMANT
It is the testimony of the claimant as per her deposition on oath as follows:
6. I was in the employment of the Nigeria Police Force until 20/01/2021 where I was a Constable with Force Number-072395 serving at Iye-Ekiti Police Division, Ekiti State.
7. I was offered appointment by the 1st and 3rd Defendant as a Constable on 28/10/2019 and I passed out of the Police Training School on 24/04/2020. That my engagement by the 1st and 3rd Defendant was however terminated via a signal Police Wireless Message with Signal no: DTO:201255/01/2021 from Compol DFA Ado-Ekiti to Supol Iye-Ekiti and info details: INGENPOLSEC/NIGPOLDFA/AIGZON’17AKURE/COMPOLSWELFARE/BUDGET/PROVFORABUJA/DECOMPOLS/ACPOLS/HODS/DPOS EKITI STATE .
8. That the date and time of making the signal is contained in the signal DTO: 201255/01/2021 which by interpretation, means the signal was made on the 20/01/2021 by 12.55pm (DTO: 201255/01/2021). I know the reason for disengagement in the said signal was that I contravened Regulation 127 made pursuant to the Police Act against women getting pregnant before marriage, and consequently dismissed.
9. That all police documents in my possession were also to be retrieved with immediate effect and my salary stopped. That I was however called on phone by the DPO Iye-Ekiti, DSP Humphery Ogbu on 21/01/21 informing me to be at the Nigerian Police Medical Service, Ekiti State Command, Cottage Hospital, Ado –Ekiti to undergo medical test. That I went for the test alongside with One ASP Dauda Jimoh who collect the Original Copy of the result of the medical test on behalf of the Defendants.
10. That the medical test conducted on me at the Police Medical Service, Ekiti State Command was done after the signal of my dismissal was already issued and sent out by the 1st defendant. That I have been diligent at my duties before the termination of my employment.
11. That Funmi Falana Esq. on the umbrella of Women Empowerment and Legal Aid (WELA) wrote on my behalf to the 2nd defendant on 23/01/2021 requesting to recall me to service not later than 31/01/2021 nut nothing was done by the defendants till the time of instituting this action .
12. The Claimant frontloaded the following documents:
i. Letter of appointment
ii. Signal of dismissal with signal; no: DTO:201255/01/2021
iii. Letter of Request for Reinstatemant from Funmi Falana (Mrs) dated 28/01/2021
iv. Medical Report of test conducted at Police Medical Service, Ekiti State Command Hospital, Ekiti State.
CASE OF THE DEFENDANT
13. The defendant’s case as per the written statement of oath of his witness, DSP Humphery Ogbu is that I have the authority of the 1st and 3rd defendant to depose to facts that are within my personal knowledge unless otherwise stated.
14. That the Claimant was by a letter dated 8/05/2020 offered appointment on probation by the 3rd Defendant to serve with the 1st defendant and the Claimant’s probative appointment took effect from 24/02/2020. I personally alongside other officers of the Division upon the noticed change in the Claimant’s body interrogated her and the Claimant confessed to be pregnant and named one Godwin Ajayi as the man responsible
15. That the said Mr Godwin Ajayi was invited along with the parents of the Claimant, they all confirmed their knowledge of the pregnancy to me and other officers of the Iye-Ekiti Division in attendance. That it was based on the above revelation that I raised a Police Wireless Message (Signal) with DTO; 181255/01/2021 (meaning dated 18/01/2021) to inform the Ekiti State Police Command Headquarters Ado-Ekiti.
16. That the Commissioner of Police, Ekiti State, in a Signal No , CB:4001/EKS/SHQ/Vol.27A/136 DTO:191255/01/2021 (meaning dated 19th January, 2021 directed that I should take the Claimant to the Police Clinic in Ado-Ekiti for medical examination. That contrary to the deposition of the claimant, she was taken for medical examination on 20/1/2021 where she was confirmed to be actually pregnant. The formal medical report is dated 21/1/2021
17. That contrary to the claimant’s deposition, she was confirmed medically to be 5 month pregnant before her dismissal and that her dismissal was sequel to the outcome of the medical examination that confirmed her pregnant. I know that the claimant is not a full-fledged employee of the 1st defendant because her employment was on probation having not been confirmed, she cannot therefore complain of wrongful dismissal.
18. The following documents were tendered by the defendant through its witness:
i. Police Wireless Message dated 18/1/2021
ii. Police Wireless Message dated 19/1/2021
iii. Medical Report Examination Report dated 21/1/2021
FINAL WRITTEN ADDRESS OF THE CLAIMANT
19. The Claimant filed is her final written address on the 23rd March 2022 and formulated a lone issue for the determination of the Court vis:
Whether by the fact and circumstances of this case, the defendant’s termination of the Claimant’s employment is not to be annulled for being illegal, irregular, null and void and contrary to Section 42 of the Constitution of the Federal Republic of Nigeria 1999( as amended) and Article 2 of the African Charter on Human and Peoples’ Right (Ratification & Enforcement) Act.
20. It is the submission of counsel that the entire process leading to the disengagement of the claimant violates the principle of natural justice hence the whole process is to be declared a nullity and liable to be set aside. He cited the cases of Ariori v. Elemo [1983) 1 SC 81, Kotoye v. C.B.N (1989) 1 NWLR (Pt 98) 419.
21. He continued that the sole reason for the disengagement of the claimant is that she became pregnant while in the service of the defendants contrary to Regulation 127 of the Police Act and the pregnancy was established through the opinion of a medical expert upon the conduct of a medical examination, he cited the case of Rabiu v. Amadu [2002] LPELR-9161 (CA) .
22. Counsel contended that the defendants actually claimed to have conducted a medical examination on the claimant to serve as a basis of her dismissal but the said medical examination was done after the signal of her dismissal had already be sent. He continued that documents speak for itself and no amount of denial on the part of the defendant can alter the content of a document, he relied on the authorities of Skye Bank Plc v. Akinpelu [2010] 9 NWLR (Pt.1198) 179, S.S GMBH v. Tunji Dosunmu Industries Ltd [2010] LPELR-2999 SC .
23. He further submitted that the entire process of dismissing the claimant violates the principle of natural justice, even if the Defendants’ defence was that the dismissal of the Claimant was in furtherance of the provision of the legislation, he relied on the authority of Arije v. Arije & Ors [2018] 12 SCM 1 at page 17.
24. He added that the process of dismissal is a nullity and obviously like a pre-arranged act, he cited Azuokwu v Nwakanma &Anor [2005] LPELR-69- (SC) and that the defendants were merely trying to put the medical report revealing pregnancy on the already concluded act of dismissal , Nyesome v. Pterside &Ors[2016[ LPELR-40036 SC.
25. Counsel argued that Regulation 127 of the Police Act is unconstitutional and gross discriminatory, Onwuka Kalu v Odili [1992) 5 NWLR Pt249( page 130), Obada v Military Governor of Kwara State [1994] 4 NWLR (Pt 336) pg 26 SC. Section 42 of the 1999 Constitution (as amended)
26. He emphasised that by virtue of the above cited sections and authorities, gender discrimination has been abolished in Nigeria and a woman shall not be subjected either expressly or impliedly to any law, executive decision or administrative action, disabilities or restriction because of her sex or circumstances of birth
27. That Nigeria has domesticated the International Convention which frowns at discrimination on grounds of Sex, he cited Article 2, 3 and 18(2) of African Charter on Human and Peoples Right, Recommendation 19 of CEDAW, Article 1(a) of the International Labour Organisation Discrimination (Employment and Occupation) Convention N0.11.
28. Counsel submitted that Regulation 127 of the Police Act is inconsistent with Right to private family life by Section 37 of the 1999 Constitution as amended, he cited Yetunde Zainab Tolani v. Kwara State Judicial Service Commission &Ors [2009] LPELR-6375 (CA), Ejieke Maduke v. Microsoft Nigeria Ltd & 3 Ors[2014] 41 NLLR (Pt 125) 67.
29. He canvassed that Regulation 127 is inconsistent with the provisions of Section 42 of the 1999 Constitution, he cited African Charter on Human and Peoples Right Ratification and Enforcement Act (CAP A9) LFN 2004, Moatswi &Anor v, Fenceing Center (9PTY) Ltd (2004) AHLR131, 3-14, Emela Muojekwu & 2 Ors v Okechukweu Ehikeme &4 Ors [2001] 5 NWLR (Pt 657) Ph 413 and several other cases.
30. Counsel concluded that the entire process leading to the dismissal of the claimant’s employment is a nullity and Regulation 127 of the Police Act is unconstitutional and illegal. He concluded that it is alarming that the Nigerian Police Force is dismissing police women based on their generic reproductive capacity while their male counterparts who impregnate females while unmarried are allowed to remain in the service.
FINAL WRITTEN ADDRESS OF THE 1ST & 2ND DEFENDANTS
31. Learned Tolu S. Abisagbo Esq. of counsel for the 1st and 2nd defendants submitted three issues for determination as follows;
1. Whether the Claimant, being an employee on probation who has not been confirmed, can complain of wrongful Dismissal from the service of the 1st Defendant.
2. Whether the Claimant being aware of regulation 127 of Police Rules and Regulations and having voluntarily subscribed to same by enlisting in the Nigeria Police Force can validly violate the same Regulation without suffering the requisite sanction.
3. Whether regulation 127 of the Police Rules and Regulations is discriminatory and violates any provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended.
32. On issue one, learned counsel submitted that Rule 020301 of the Public Service Rules in Nigeria provide to the effect that a person may be employed into any public service in Nigeria on probation. It provides that such officer on probation will be required to serve for two years before being confirmed in the service. That an employee on probation can be booted out at any time by the employer for lack of capacity or unsatisfactory performance without following any elaborate rules as applicable to employee on permanent appointment. AL-BISHAK National Productivity Center & Anor (2015) LPELR-24659 (CA), Raji vs. O.A.U (2014) LPELR – 22088(CA) The Claimant in the instant case is a probationary employee; her employer has found her conducts unsatisfactory and that she lacks the capacity to a full-fledged Police officer.
33. On issue 2, learned counsel submitted that the Claimant having freely subscribed to and taken advantage of a particular process or course of action, will not be allowed in law to rubbish the same process. It is morally reprehensible and legally impracticable for the Claimant who, being aware of the conditions of service in the Nigeria Police Force as contained in the Police Rules and Regulations and other extant rules, voluntarily enlisted in the Police Force to seek to rubbish the same rules upon which she was appointed. He cited the latin maxims of – Volenti Non Fit injuria meaning where a person has given his consent to a particular cause of event or action, he cannot later be heard to complain) and Nollus comnodum capere Potest De lnjuna Sua Proppra – meaning No one can take advantage of his own wrong doing. For it is said that he vainly invokes the aid of the law who transgresses the law. Felix George & Company Ltd vs. Afinotan & Ors (2014) LEPLR 22289(CA).
34. On his issue 3, learned counsel argued that a careful and thorough reading of Section 42 of the Constitution and Regulation 127 of the Police rules and Regulations will reveal clearly that there is nothing contradictory in the two provisions of the laws. The provision of Regulation 127 of the Police Rules and Regulations is a rule of conduct for unmarried female police officers.
35. The rule is rule is meant to protect unmarried female Police officers from criminal minded members of the society who may want to take advantage and to keep female Police Officers in proper health shape for effective performance of the onerous tasks of policing the society. It is not discriminatory to set behavioural standard for Police Officers in order to achieve efficiency in policing activities and professionalism. Even if the court comes to the conclusion that the rule is discriminatory, we submit that it is a lawful discrimination undertaken in the interest of the larger society.
36. That the fundamental rights as guaranteed under the 1999 Constitution (as amended) are not absolute. Where a law or regulation of an establishment identifies gender attributes or faults and seek to regulate the vulnerabilities capable of negatively affecting the progress of such gender, such law or regulation cannot be said to be Discriminatory. This was the view of the Federal High Court sitting in Abuja coram Honorable Justice lnyang Ekwo in suit No. FHC/ABJ /Cs/178/2021 where the Court dismissed a suit filed on behalf of the Claimant in this suit for lacking in merit. The learned Judge of the Federal High court held,
In my opinion, the essence of this suit is to use the provision of the 1999 constitution (as amended) to lower the moral and professional standard of the Nigeria Police force and this court will not give its imprimatur to such venture.
COURT’S DECISION
37. Having considered the pleadings, evidence and written submissions of the counsels in this case, the court hereby adopts the 1st and 2nd defendants’ issues for determination with little amendments as follows;
1. Whether section 127 of the Police Act and Regulations 127 thereof is discriminatory and violates any provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended.
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2. Whether the Claimant, being aware of regulation 127 of Police Act, and having voluntarily subscribed to same by enlisting in the Nigeria Police Force, can validly challenge the said regulation.
3. Whether the court can order reinstatement of the Claimant, being an employee on probation, who has not been confirmed, into the service of the 1st Defendant.
38. The claimant was recruited by the 1st and 3rd Defendants as a Constable on 28/10/2019 and passed out of the Police Training School on 24/04/2020, while in the service, she was said to become pregnant though still unmarried, she was dismissed in January,2021 based on the police regulation 127 which forbids an unmarried woman police officer from getting pregnant while in the service. She came to this court on 3/2/2021 via a complaint which was later heard on the records.
39. Her complaint is that section 127 of the police Act and Regulation 127 made pursuant to the police Act which is against women police officers getting pregnant before marriage but does not apply to male police officers impregnating women before marriage is discriminatory, illegal and unconstitutional as it violates the Claimant’s Right under Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and People’s Rights and the said provision should be annulled.
40. We shall come back to these provisions in the course of determining the issues for determination.
1. Whether section 127 of the Police Act and Regulations 127 thereof is discriminatory and violates any provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended.
Now Section 42 of the Constitution of the Federal Republic of Nigeria (1999) as amended provides as follows;
42. Right to freedom from discrimination
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person—
(a) be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the Government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria.
41. Regulation 127 and section 127 of the Police Act states as follows;
“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”.
42. The contention of the claimant is that the provision is discriminatory contrary to section 42 of the constitution and the African Charter on Human and People’s Rights while the 1st and 2nd defendants contend that a thorough reading of Section 42 of the Constitution and Regulation 127 of the Police Rules and Regulations will reveal clearly that there is nothing contradicting in the two provisions of the laws. That the provision of Regulation 127 of the Police Rules and Regulations is a rule of conduct for unmarried female police officers.
43. That the rule is meant to protect unmarried female Police officers from criminal minded members of the society who may want to take advantage and to keep female Police Officers in proper health shape for effective performance of the onerous tasks of policing the society. It is not discriminatory to set behavioural standard for Police Officers in order to achieve efficiency in policing activities and professionalism. Even if the court comes to the conclusion that the rule is discriminatory, we submit that it is a lawful discrimination undertaken in the interest of the larger society.
44. What then, is discrimination, or when is a legislation said to be discriminatory?
From the wordings of the 1999 constitution as above quoted, discrimination means subjection of a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject.
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45. In NURSING AND MIDWIFERY COUNCIL OF NIGERIA v. ESTHER BOSE ADESINA (2016) LPELR-40610(CA) , the court Per OGAKWU, J.C.A. defined discrimination thus; |
"The Black’s Law Dictionary, Ninth Edition defines discrimination on page 534, inter alia, as Differential treatment; esp; a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored
46. Now, Nigeria has ratified the Discrimination (employment and occupation) convention No.111 of 1958 on 2/10/2002. Article 1 of this convention defines discrimination as follows;
a. For the purpose of this Convention the term discrimination includes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
b. Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer’s and workers’ organisations, where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirement thereof shall not be deemed to be discrimination.
3. for the purpose of this Convention the terms employment and occupation include training, access to employment and to particular occupations, and terms and conditions of employment. (underlings supplied for emphasis)
47. Now Regulation 127 of the Police Act provides as follows;
“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”.
Here we see a regulation targeted at unmarried women police officers, it prohibits and punishes unmarried police women officers who become pregnant. This regulation does not apply to male police officers as if they cannot impregnate females while unmarried.
48. It appears clear that this regulation does not punish an unmarried male police officer who impregnates a woman, either another police officer or a non- police officer. This regulation aims at, to borrow the words of Mrs. Falana Esq. of learned counsel to the claimant, as she rightly puts it, “dismissing police women based on their generic reproductive capacity while their male counterparts who impregnate females while unmarried are allowed to remain in the service”
49. Applying the definition of discrimination as above shown, the court needs not go further to hold that the provisions of section 127 of the police Act and the police Regulation 127 is discriminatory and in contravention of section 42 of the 1999 constitution as amended) and Article 2 of the African Charter on Human and People’s Rights.
50. Learned counsel for the 1st and 2nd defendants, in a very difficult to comprehend argument, submitted that the rule is meant to protect unmarried female Police officers from criminal minded members of the society who may want to take advantage. A rule cannot be said to be meant to protect a person from criminally minded members of the society by punishing that person if he falls victim. This Rule does not treat an unmarried female police officer who gets pregnant as a victim but as a culprit. This argument holds less water than a basket can do.
51. Counsel further submitted that It is not discriminatory to set behavioural standard for Police Officers in order to achieve efficiency in policing activities and professionalism. While the court agrees that it is not discriminatory to set behavioural standard for Police Officers in order to achieve efficiency in policing activities and professionalism, this argument would have held sway if the Regulation did not target only unmarried women police officers, leaving out unmarried male police officers. The behavioural standard set in section 127 of the Police Act and Regulation 127 thereof is not set for police officers in general but only for unmarried female police officers, and therein lies the discrimination.
52. Learned counsel for the 1st and 2nd defendants also submitted that even if the court comes to the conclusion that the rule is discriminatory, we submit that it is a lawful discrimination undertaken in the interest of the larger society. Here comes a defence of lawful discrimination, under what law is this principle of lawful discrimination founded? In the Nigerian Constitution, no room exists yet for lawful discrimination. I know not of any exception to this section apart from section 42(3) which relates to “restrictions with respect to appointments of any persons to any office..” which is applicable to both males and females and all persons as indicated by the words “any person” as opposed to “persons of any particular class ” as envisaged by section 42 (1).
53. The Federal High Court and this court had had the opportunity of interpreting similar provisions as the police Regulation 127 and holding same to be discriminatory in previous cases such as WOMEN EMPOWERMENT AND LEGAL AID V AGF, SUIT, NO.FHC/IKJ/CS/M128/2010,a judgment delivered by Stephen Jonah Adah. J on 30th April, 2010, LEGAL DEFENCE AND ASSISTANCE PROJECT LTD/GTE V NDLEA, SUIT NO.NICN/LA/165/2015 and MRS FOLARIN OMEKA MAIYA V INCORPORATED TRUSTEES OF CLINTON HEALTH ACCESS INITIATIVE,NIGERIA &2 ORS, SUIT NO.NICN/ABJ/13/2011, a judgment delivered on 11th November,2011 by B.A. Adejumo, then president of the National Industrial Court of Nigeria.
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54. Nigerian courts have severally upheld this right against discrimination. See
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2.Whether the Claimant, being aware of regulation 127 of Police Rules and Regulations, and having voluntarily subscribed to same by enlisting in the Nigeria Police Force, can validly challenge the said regulation.
57. In the law of contract, a contract can be rendered illegal by Statute or a contract that was legal when made could be rendered illegal by a new statute prohibiting the commission of the terms of the contract. See R.M.AL & F, C v. UNITS ENVIRONMENTAL SCIENCES LTD(2010) LPELR-9205(CA)
In Pan Bisbilder (Nig.) Ltd v. F.B.N. Ltd. (2000) 1 NWLR (Pt.642) 684, the court held that;
"A contract is illegal where the subject-matter of the promise is illegal or where the consideration or any part of it is illegal."
In Alao v. A.C.B. Ltd (1998) 3 NWLR (Pt.542)339, the Supreme court held that;
"Where at trial of an action the plaintiff's case discloses that the transaction which is the basis of the claim is illegal, the court cannot properly ignore the illegality or give effect to the claim, even if the illegality was not pleaded or relied on by the defendant."
58. No citizen is permitted to contract out of the constitution of the land. The right to challenge a law that violates a constitutional right cannot be waived by contract or agreement of parties. The claimant has a right to challenge the constitutionality of section 127 of the Police Act and Regulation 127 thereof. I so hold.
3. Whether the court can order reinstatement of the Claimant, being an employee on probation who has not been confirmed, into the service of the 1st Defendant.
59. Now, the claimant was employed on probation with effect from 24th April, 2020 according to the letter of appointment. The claimant was employed on probation with effect from 24th April, 2020 so would be on probation till 24th April,2022 but was dismissed in January 2021,a period of less than two years so she was still on probation when dismissed.
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In PAUL UHUNMWANGHO SIMEON v. COLLEGE OF EDUCATION EKIADOLOR BENIN |
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(2014) LPELR-23320(CA) the court held as follows; |
The sole purpose of putting an employee on probation or giving him a temporary appointment is to give the employer an assurance that the employee is a fit or proper person to be placed on permanent appointment. It is noteworthy that probationary period is a period of observation by any employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot with any justification complain. See: IHEZUKWU V. UNIVERSITY OF JOS & ORS. (1990) 7 SC (PT. 1) 18."
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60. Regulation 67 of the police Regulation on termination of probationary appointment provides as follows; |
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1.The services of a police officer serving on probation may be terminated by the Nigeria Police Council, at any time during the probationary period on any grounds that may be deemed sufficient by the Council to justify such termination of appointment. |
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2. A police officer serving on probation whose services are to be terminated, shall be given one month's notice in writing, or, if the circumstances warrant it, one month's salary in lieu of notice and such officer shall, provided that such termination of services is not on the grounds of misconduct, be entitled to the payment, at the rates laid down by General Orders, of travelling allowance for the journey from the place of his last duty station to his recognised home town. |
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61. Now, the claimant is still on probation and yet to be confirmed. The terms of contract therefore is the claimant’s offer of appointment. The offer of appointment of the claimant dated 8/7/2020 provides in paragraph 3 that your appointment may be terminated if, at any time of your service, your conduct and performance are adjudged to be unsatisfactory. The implication of all the above is that as a probationary staff, the claimant is not yet clothed with the garb of statutory protection so even when her termination is wrongful, she cannot be reinstated.
62. Having nullified section 127 of the police Act and regulation 127 thereof, it follows that the dismissal of the claimant was wrongful. The law is that where there is a wrong, there is a remedy. I have held that since the claimant was still on probation, she cannot be reinstated. What remedy is available to the claimant then?
63. In the circumstance of this case, the claimant has been wrongfully denied a life time opportunity of serving in the Nigerian Police, based on a discriminatory law. Since the claimant cannot be reinstated, she is entitled to aggravated and punitive damages assed at N5,000,000.00 (five million naira )only
64. For the avoidance of doubt, the case of the claimant succeeds in part only in terms of prayer B which is A Declaration that the provisions of Regulation 127 and section 127 of the Police Act which is against women police officers getting pregnant before marriage but does not apply to male police officers impregnating women before marriage is discriminatory, illegal and unconstitutional as it violates the Claimant’s Fundamental Right under Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and People’s Rights and the said provision is hereby declared null and void and struck down.
65. The defendants are to pay the claimant punitive and aggravated damages in the sum of N5,000,000.00(Five million Naira)only.
66. This is the judgment of the court and it is entered accordingly.
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HONOURABLE JUSTICE K.D.DAMULAK
PRESIDING JUDGE