IN THE NATIONAL INDUSTRIAL COURT
IN
THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE R. B.
HAASTRUP
30TH
SEPTEMBER 2025 SUIT NO: NICN/ABJ/28/2025
BETWEEN:
1.
2.
ACP VICTOR ODEME CHILAKA
3.
ACP EGWU OTU
4.
CSP SYLVESTER ROBINSON EBOSELE
5.
CSP ASUQUO U.
INYANG
…….………….. CLAIMANTS
6.
CSP KALU OKPOR CHIKEZIE
7.
CSP ADETU U. OMOTESO [For
themselves and as
representing all members of Course 18,
19 & 20
(Force Entrants) of the Police
Academy]
AND
1.
2.
INSPECTOR GENERAL
OF POLICE …………………………….……… DEFENDANTS
3.
FORCE SECRETARY,
NIGERIA POLICE
LEGAL REPRESENTATION:
Chief Gordy Uche
(SAN), with T. J. Aondo (SAN), Edwin Okoro Esq., Chukwudi Maduka Esq., O. T.
Lough Esq., Francis Nsiegbunam Esq., Zhokwo Zhokwo Esq. Victor Enene Esq.,
Kelvin Nwachukwu Esq., Kenechukwu Ndejiobi Esq., and Keneth Shishar for the
Claimants.
Okoro Nnachi Esq.
with brief of Babatunde Dada Esq. for 1st Defendant, with Aisha A.
Hassan and C. G. Innocent Onyeabor.
Rimansomte
Ezekiel Esq for 2nd and 3rd Defendants
JUDGMENT
[1] Introduction and Claims
This action was commenced at the instance of
the Claimants vide an Originating Summons which is dated 1st
February 2025 but filed 3rd February 2025 upon which a single issue
for determination was submitted as follows;
“Whether taking into consideration the judgements
of the National Industrial Court, Abuja delivered by Hon. Justice O. O.
Oyewunmi in suit Nos. NICN/ABJ/345/2019- ACP AMBROSE EMENGAHA
& ORS. V. POLICE SERVICE COMMISSION & 2 ORS; and NICN/ABJ/353/2019- CSP
SUNDAY OKUGUNI & ORS V. POLICE SERVICE COMMISSION & 2ORS, resolving the
issue of date of appointment of Cadet Officers (Force Entrants) as the dates of
their first appointment, and the said judgments having been implemented by the
Defendants since 29th July 2021, the Defendants are not estopped
from reopening the issue of date of first appointment?”
Consequent upon the questions raised,
the Claimants sought the following reliefs to wit;
B.
A declaration that the members of Cadet ASP (Force entrants) of
courses 18, 19 & 20 who are yet to serve 35 years of pensionable service
nor attained the age of 60 years, are by virtue of the said judgment of the
National Industrial Court delivered by Hon. Justice O.
O. Oyewunmi in Suit Nos. NICN/ABJ/345/2019 - ACP AMBROSE EMENGAHA & ORS.
V. POLICE SERVICE COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP SUNDAY
OKUGUNI & ORS V. POLICE SERVICE COMMISSION & 2ORS, excluded from the decision of the 1st Defendant at her first extraordinary meeting of
the 6th management board held on 31st January 2025,
approving the immediate retirement of those officers who have spent 35 years in
service or above 60 years in age.
C. A declaration
that, by virtue of
the said judgments of the National Industrial Court
affirming the dates of appointments of Claimants as Cadet Officers as fresh
appointment, the said appointment is not a merger of service.
D.
A declaration that the Defendant cannot by any decision, set aside
the valid and subsisting judgments of the National Industrial Court, Abuja
delivered by Hon. Justice O. O. Oyewunmi in Suit Nos. NICN/ABJ/345/2019 - ACP AMBROSE EMENGAHA & ORS.
V. POLICE SERVICE COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP SUNDAY
OKUGUNI & ORS V. POLICE SERVICE COMMISSION & 2ORS, already implemented by the Defendants since 29th July 2021.
E.
An Order setting aside the 1st Defendant’s directive to
the 2nd and 3rd Defendants contained in the press release
of 31st January 2025, as it concerns Courses 18, 19 & 20 (Force
entrants).
F. An Order of
perpetual injunction, restraining the Defendants jointly and severally from
unlawfully and illegally reviewing the issue of dates of appointment of
Cadet ASP’s of Force Entrants-Courses 18, 19 & 20 already
settled by the judgments of the National Industrial Court.
G.
An Order of perpetual injunction, restraining the Defendants
jointly and severally from unlawfully and illegally retiring any member of
Force Entrants-Courses 18, 19 & 20 who have not
attained the mandatory retirement age of 60 years.
[2] In
support of the Originating Summons is an Affidavit of Forty-three (43)
paragraphs deposed to by the 2nd Claimant on 3rd February
2025 alongside some documents marked thus:
i.
Letter from Tehillah Chambers
dated 20th April 2021 and 28th January 2021-exhibit A
ii.
Judgment of this Court dated 13th
January 2021 – exhibit B
iii.
Judgment in Suit No.
NICN/ABJ/353/2021 delivered 13th January 2021 - exhibit C.
iv.
Letter from Police Service
Commission dated 27th April 2021- exhibit D
v.
Letter from Police Service
Commission dated 25th October 2017- exhibit E
vi.
Police wireless message- exhibit
F
vii.
Letter dated 30th
April 2021 from the office of IGP with annexure dated 31st January
2025- exhibit G.
and a Written
Address in support thereof.
Claimants’ Counsel Legal Argument on
Sole Issue
[3] Claimants counsel posited that this Court
has the requisite jurisdiction to hear and determine this suit by virtue of the
Constitutional provision of section 254C and that because the subject matter
before the Court revolves on the issues of employment, same has been brought
before the proper Court.
Equally that the commencement of this suit by
Originating Summons procedure is proper and in line with Order 3 Rule 16 of the
National Industrial Court of Nigeria (Civil Procedure) Rules 2017, as it
relates to the determination of questions arising from the
construction/interpretation of instruments and determination of the rights of
the Claimants arising therefrom. He relied on the case of BARR. (MRS)
AMANDA PETERS PAM & ANOR V. NASIRU MOHAMMED & ANOR (2008) Legalpedia
(SC) 81116.
Also, that when it comes to the Rules of
interpretation, a law should be viewed in its simple form and interpreted based
on what the legislators intended without introducing any extraneous matters. He
cited in support the authority of A.G. ANAMBRA STATE V. A.G. FEDERATION
(2007) Legalpedia (SC) 04532
[4] Counsel here also submitted that the law
is trite that a party who is in imminent danger by an adverse party has the
locus standi to institute an action in Court which was the decision of the
Court in the case of OLAGUNJU V. YAHAYA (1998) 3 NWLR (PT.542) 501 among
others. Furthermore, counsel restated the known position of the law that a
decision of Court not appealed against remains binding and subsisting over the
parties therein.
In applying the above principles of law to the
issue submitted, Claimants’ counsel stated that what becomes pertinent for the
determination of this Court is;
“Whether the judgments resolving the
issue of date of appointment of Cadets officers (Force Entrants) as the dates
of their first appointment, and the said judgements having been implemented by
the Defendants since 29th July 2021, the Defendants are not estopped
from reopening the issue of date first appointment.”
[5] He answered the above in the affirmative
and urged the Court to hold that the Defendants are estopped. Submitting
further, he argued that estoppel per rem judicatam as a principle of law
connotes that where the rights of parties and privies have been fairly and
conclusively decided in a previous case, it serves as a bar to any future
action on the same issue between the said parties. That the essence is to have
an end to litigation.
In concluding his address, Claimants’ counsel
posited that based on the established position of the law that where there is a
wrong, then there ought to be a remedy as decided in JIDE ARULOGUN V. COP,
LAGOS STATE & ORS (2016) LPELR-66490; hence this Court having been
imbued with power to grant necessary orders for the end of justice, should hold
that the respective judgments settled the issue of maintaining Claimants’ date
of appointment as Cadet Officers, as their date of first appointment and grant
the reliefs sought.
Claimants Further and Better
Affidavit in Support of Originating Summons
[6] On 10th February 2025,
the Claimants filed a ten paragraphs Further and Better Affidavit deposed to by
the same 2nd Claimant, with a bundle of documents annexed as Exhibit
T.C.1.
1st
Defendant’s Counter/Affidavit and Counsel Legal Argument
[7] For the 1st
Defendant, One Emmanuel Eyerengba, an Admin.
Officer II in the employment of the 1st Defendant, on 4th
April 2025, deposed to a Counter-Affidavit of twelve (12) paragraphs in
opposition to the Originating Summons, with two documents marked Exhibits A and
B, alongside a Written Address wherein he submitted two issues for
determination as follows;
i.
Whether the Court
has jurisdiction?
ii.
Whether the
Claimants is (sic) entitled to relief (sic) being sought in the Originating
Summons?
Issue One
[8] 1st
Defendant Counsel posited that jurisdiction is the lifeline of any action, thus
the need for the Court to determine the fundamental issue of jurisdiction once
it is raised to preclude a situation where the Court will act in futility due
to want of same. He referred to the case of EBUBEDIKE V. FRN & ORS.
(2013) LPELR- 22061 among others.
He
contended that the administrative action of the 1st Defendant of 31st
January 2025 is what triggered instituting this instant action; that because it
is an administrative act and sequel to the provisions of section 251 (1) (q) & (r) of the 1999 Constitution (as
Amended), it is the Federal High Court that has jurisdiction to hear and
determine this suit. Hence, that the Court should decline jurisdiction by
reason thereof.
Issue
Two
[9]
It is the 1st Defendant’s counsel submission that it is the
statutory body saddled with the responsibility of appointing, promoting and
disciplining all police officers (Claimants inclusive) with the exception of 2nd
Defendant in Nigeria. He relied on the provisions of section 153 (m); Part 1
Paragraph 30 of the Third Schedule of the 1999 Constitution (As Amended) and
section 6 of the Police Service Commission (Establishment) Act 2001. By
extension, that the 1st Defendant is also responsible for making policies
and guidelines for the Nigeria Police Force and cited in support the authority
of NPF V. PSC (2023) 95 NSCQR 262 PT.1, PG. 318.
Further
to the above, counsel here submitted that it was consequent upon its powers
above that it made a policy decision at its 24th Plenary session on
27th and 28th September 2017 (prior to the judgment
relied upon by the Claimants); but later set aside that decision on 31st
January 2025 by reviewing same, upon discovery of fraud contained in Exhibit A.
He emphasized that no reference was made to the decision of this Court in
making its decision, neither did they attach any list of officers with regard
thereto.
[10]
More emphasis was made by 1st Defendant counsel as to the right to
exercise administrative powers vested on the 1st Defendant so long
as such powers were exercised in good faith and fairness which he stated was
what the 1st Defendant did in the circumstance on 31st
January 2025. He cited in support the cases of OLUWABUKOLA V. A.G. LAGOS
STATE (2022) 2 NWLR (PT. 1815) 499 @ 590, PARA. F. and ABUAH V. OKOSI
(1995) 16 NLWR (PT.1484) 147 @ 168, PARAS. B-D.
Counsel
also reiterated that the impression given to the Court by the Claimants is that
1st Defendant sought to review the Court’s judgments which is not
the case, emphasizing on the fact that subsequent to the two judgments, some
officers in the Force Entrant embarked on massive falsification of their ages
to perpetuate further stay in the service of the Nigerian Police Force of which
some were discovered after investigation including some members of the
Claimants.
[11]
In addition, counsel to the 1st Defendant contended that the names
stated at paragraphs 5 & 6 of Claimants’ further affidavit, based on a list
attached to the Originating Summons has no link with 1st Defendant’s
letter to the Inspector General of Police. More so, that the list being a
public document was not certified and thus, not in compliance with section 102
of the Evidence Act, hence this Court should jettison same. On the whole, the
Court was urged by counsel to discountenance the claims of the Claimants.
2nd
and 3rd Defendants Counter/Affidavit and Legal Argument
[12] On behalf of the 2nd and 3rd
Defendants, a Counter Affidavit of 20 paragraphs was deposed to on 16th
April 2025 by one Detective Joshua Yohanna and two documents marked Exhibits
NPF 1 (which is the alleged falsified signal) and NPF 2 (1st
Defendant’s Internal Memo dated 13th December 2024) and a written
address. The counsel distilled three issues for the resolution of the Court as
follows;
i.
Whether the 1989
policy made by the Police will supersede the clear enactment of the National
Assembly or whether if the Police is inconsistent with provision of the law,
which one takes precedence?
ii.
Whether a fraudulent
document used in perpetrating a crime will rise (sic) the status of the
document to be legal or whether an illegality remains so irrespective of how
long it has been practiced?
iii.
Whether the
Claimants is (sic) entitled to the reliefs sought before this Honourable
Court.?
2nd and 3rd Defendants’
counsel did argue the three issues raised jointly in the following manner;
[13] Referring to the decision of the Supreme Court
in NIGERIA
POLICE FORCE & ORS. V. POLICE SERVICE COMISSION & ANOR (2023) LPELR-60782 (SC), (P.204, PARAS. G-H), the doctrine of covering the field was espoused by
the Court as involving a situation where the Constitution has made a law as to
a particular subject matter and the National Assembly or State House of
Assembly also makes a law in that regard. Another scenario is where a State
House of Assembly purports to make a law on a subject already legislated by the
National Assembly; the doctrine of covering the field will apply in both
scenarios in that the Constitution and the Federal legislation shall take
preeminence respectively. In the instant case, counsel opined that the Public
Service Rules and the Police Act have made provisions as to the date of
enlistment of a police officer and when he will retire. Thus, that any
alteration of same by an internal policy as contended by the Claimants is
against the law. By the foregoing, counsel here prayed the Court to
discountenance Claimants’ counsel line of submissions for lacking in merit and
being overreaching.
[14] With reference to the second issue of relying
on a fraudulent document, the submissions made here are to the effect that
persistent acts of illegality by a person does not confer the illegality with a
cloak of legality as decided in NIGERIA
POLICE FORCE & ORS. V. POLICE SERVICE COMISSION & ANOR (SUPRA). He also
relied on the latin maxim- Dormiunt leges aliquando, nunquam moriuntur (the law
sometimes sleeps, but they never die). He further pointed out that where a
Court of law in the course of trial discovers an illegality has been committed,
even if it has no power to try that offence and without prejudice to its power
to refer the matter to the appropriate Court/tribunal, it has a duty to take
cognizance of such illegality and anything emanating from it becomes an
illegality. The cases of NWOSU
V. ACTION PEOPLES PARTY (2020) 16 NWLR (PT.1749) 28; U.O.O. NIGERIA PLC V.
OKAFOR (2020) 11 NWLR (PT. 1736) 409; MR. KEHINDE AYODEJI BELLO V. INEC &
ORS (2023) LPELR-60031 (CA) were all relied upon
in support of the above contention.
[15] In his submissions regarding his issue three, 2nd
and 3rd Defendants’ counsel posited that the mere deposition of
facts in affidavit evidence without proof or substantiating documents ought to
be treated as mere pleadings and that the failure of Claimants to submit
themselves for investigation and having an outcome cannot be regarded as an
infringement of their rights since the Defendants were only acting within the
ambit of their powers under the law. Thus, that the Claimants are not entitled
to the reliefs they seek from the Court and he urged the Court to so hold. He
relied on the authorities of CHAIRMAN,
EFCC V. DAVID LITTLECHILD & ANOR (2015) LPELR-25199 (CA); DIKE V. THE A.G.
& COMMISSIONER FOR JUSTICE, IMO STATE & ORS. (2012) LPELR-15383 (CA).
In conclusion, counsel here stated that the
Claimants have not proved their entitlement to the reliefs sought and same
should be dismissed with punitive cost of N10, 000, 000.00 (Ten Million Naira).
Claimants’ Reaction to 1st
Defendant’s Counter-Affidavit and Address
[16] Claimants’ counsel also reacted to 1st
Defendant’s Counter-Affidavit by filing a Further Affidavit of Nineteen
paragraphs deposed on 2nd May 2025 by Nyiman Linus Fanenter, a
litigation secretary in the law firm of counsel to the Claimants, with five
documents marked Exhibits 1-5 and a Written Address. He adopted the two issues
distilled by the 1st Defendant counsel as his issues for
determination.
[17]
Arguments canvassed here started off with the counsel submitting that this
Court has jurisdiction to hear and determine matters that border on employment
and labour matters as contained at paragraph 254C (1) (a), (d) & (j) (iii)
of the Constitution of the Federal Republic of Nigeria. That it was the
decision of the 1st Defendant of 31st January 2025 at its extraordinary meeting of its 6th
Board that triggered this present suit which borders on the compulsory
retirement or illegal termination of the Claimants’ employment, which falls
within the jurisdiction of this Court.
Regarding issue two on entitlement to the reliefs
sought by the Claimants, the counsel posited that there is sufficient evidence
before the Court to warrant the grant of same. Also, that the 1st
Defendant counsel did not address the said issue in his address, hence
amounting to an admission.
[18] Going further, Claimants counsel argued that
contrary to the reliance by 1st Defendant on its Constitutional and
statutory powers, it does not have the power to review its earlier decision of
27th and 28th September 2017, same having been affirmed
by the Court in its judgments as that will amount to sitting on appeal over
same, which the 1st Defendant lacks the vires to do.
[19] Lastly, that the suits leading to the
judgments, subject of this action were contested from 2019-2021 when judgment
was delivered and none of the parties raised the issue of fake signal, neither
did the decision of the 1st Defendant of 31st January
2025 at its extraordinary meeting of its 6th Board raised referred
to same, but hinged its decision on merger of service, hence that their claim
here is only a mere afterthought and that by law, a party cannot speak from
both sides of his mouth as it amounts to contradiction; this he urged the Court
to discountenance and so hold.
Claimants’ Reaction to 2nd and 3rd
Defendants Counter-Affidavit and Address
[20]
In reaction to the Counter-affidavit and written address filed by the 2nd
and 3rd Defendants, Claimants filed a Further
Affidavit of twenty-three paragraphs deposed on 2nd May 2025 by
Nyiman Linus Fanenter, a litigation secretary in the law firm of counsel to the
Claimants and a Written Address, from which the counsel submitted a lone
issue for determination thus;
“Whether
the case of the Claimants has anything to do with the doctrine of covering the
field as extensively argued by the 2nd and 3rd Defendants
counsel in his written submission and whether the Claimants are entitled to the
reliefs sought?”
Claimants’ counsel clear answer to the issue above
is that their case has nothing to do with the doctrine of covering the field.
He stressed also that counsel to the 2nd and 3rd
Defendants went on to argue what is not before the Court and at variance with
facts contained in his Counter-Affidavit, which Claimants’ counsel urged the
Court to discountenance and to hold same as not opposing Claimants case.
[21] Secondly, that the Claimants are entitled to
the reliefs sought having placed sufficient material before the Court. More so,
that there is no provision in the Police Service Commission (Establishment)
Act, that allows the Commission to retire any officer by reviewing its previous
decision which has been affirmed by a Court in its judgement.
Additionally, that there is nothing placed before
the Court to support the assertion of fraud and falsification of records. This
he stated in the face of the law that a crime alleged in a civil action must be
proved beyond reasonable doubt which has not been done in the instant case.
Other
Processes Filed by Parties
[22] 1st
Defendant’s counsel on 10th July 2025, filed a document titled
Further-Counter affidavit of 1st Defendant in Response to the
Claimants’ Further Affidavit with some annexures marked as Exhibits A1 and A2;
to these, the Claimants counsel filed a document titled Claimants’ Further,
Further Affidavit in response to 1st Defendant further Counter
Affidavit on 17th July 2025 with an annexure marked Exhibit FF1 and
a written Address. I shall not be summarizing them and will give my reasons for
so in the body of the Court’s decision.
Decision
[23]
The Claimants filed this case seeking the interpretation and application of the
judgment of this Court per Hon. Justice O. O. Oyewunmi (now JCA) in suit No. NICN/ABJ/345/2019- ACP AMBROSE EMENGAHA
& ORS. V. POLICE SERVICE COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP
SUNDAY OKUGUNI & ORS V. POLICE SERVICE COMMISSION & 2ORS, as it
relates to the issue of their proposed compulsory retirement by the Defendants
via a circular issued 31st January 2025.
My review of the facts of the cases of the parties
and the pieces of evidence before me streamlines the issues here thus;
i.
Whether
this Court has jurisdiction to hear and determine this suit.
ii.
Whether
the Defendants by its decision of 31st January 2025 sought to review
or sit on Appeal over the judgments of this Court delivered on 13th January 2021 by His lordship Hon. Justice O. O. Oyewunmi (now JCA) in suit
No. NICN/ABJ/345/2019- ACP AMBROSE EMENGAHA & ORS. V. POLICE SERVICE
COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP SUNDAY OKUGUNI & ORS V.
POLICE SERVICE COMMISSION & 2 ORS?
iii.
Whether
the Claimants are entitled to the reliefs sought?
[24] I deem it fit before delving into the substance
of my decision to make some additional remarks. In the course of trial and
while the parties were adopting their addresses on 22nd July 2025,
Claimants’ counsel had prayed the Court to discountenance its further, further
affidavit filed on 17th July 2025 and the further counter affidavit
of 7th July 2025 filed by counsel to the 1st Defendant
positing that it is unknown to law. More so, that no leave was sought by 1st
Defendant counsel before filing same, while maintaining that there must be an
end to the filing of processes and litigation. The 1st Defendant
counsel however adopted his two processes while counsel to the 2nd
and 3rd Defendants who was present the previous date, was visibly
absent from Court with no excuse. His processes shall by virtue of Order 45
Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017, be deemed
adopted and I so hold.
[25] Regarding the two processes in contention
above, the general procedure of this Court as contained in Order 15 Rules 5-6
of the National Industrial Court (Civil Procedure) Rules is that where an
action is commenced by Originating Summons and upon service of same on the
Defendant, he is entitled to file a Counter Affidavit within 14 days and
thereafter the Claimant if he deems necessary, may file an Affidavit to rebut
the Counter-Affidavit of the Defendant and a Written Address.
There is no provision for the filing of further
counter-affidavits or further, further affidavits as seen in the 2 processes
filed. Also, I am in agreement with Claimants’ counsel that having not sought
the leave of Court to file the processes, they have no place in law; and as a
matter of course, there must be an end to the filing of processes. That being
said, the Application to withdraw Claimants’ further, further affidavit filed
on 17th July 2025 is hereby granted and the process struck out
accordingly. Equally, 1st Defendant’s Further Counter Affidavit of
10th July 2025 is struck out for being incompetent, I so hold.
Resolution
of Issues
Issue
One
[26]
The 1st Defendant counsel had in his address contended that the
proper Court to resolve the issues in contention in this suit is the Federal
High Court and not the National Industrial Court. His contention is hinged on
the basis that the Claimants are questioning the administrative decision of the
1st Defendant which is an agency of the Federal Government sequel to
the provisions of section 251 (1) (q) & (r).
Claimants’ counsel on the other hand has challenged that argument by holding
unto the Constitutional provisions of section 254C of the 1999 Constitution (As
Amended) which clothes this Court with exclusive jurisdiction over matters
bordering on employment and labour among other incidental matters.
Having
considered the submissions of both parties above, I have gone beyond the
authorities cited by them and taken the pains to also go through the records of
this Court and recall that this same issue was contended by the same 1st
Defendant counsel in a Preliminary Objection which was heard and determined on
the merits in a ruling delivered on 11th June 2025 dismissing the
said objection. (See pages 706-722 of the process file).
[27]
The law is trite that once a matter or an issue has been properly determined by
a Court of law, it cannot be relitigated at the same forum as that will amount
to arm twisting the Court and the Court sitting on appeal over its decision.
See the cases of NWANA V. FCDA
(2007) LPELR-2101 (SC) P.16, PARA C-F. and OSIBODU & ORS. V. HAGGAI SAVINGS
& LOANS LTD (2017) LPELR-50886 (CA) (PP. 12-14, PARAS. F-F). The
attitude of counsel to the 1st Defendant in this wise smirk of
disregard to our legal jurisprudence and should not repeat itself again under
any guise as this Court views same as a deliberate act and not one of
ignorance. A word is enough for the wise! Consequently, issue one is resolved
against the 1st Defendant and in favour of the Claimants.
Issue
Two
[28]
This issue revolves on the substance of the suit which hinges on the decision
reached by the 1st Defendant on 31st
January 2025 directing the 2nd and 3rd Defendants to
give effect to its resolution by setting aside its earlier decision of 27th
and 28th September 2017. The key resolution in the circular of 31st
January 2025 (Exhibit TC1) and addressed to the 2nd Defendant reads
thus:
“The
Commission at the 24th Plenary meeting of 27th and 28th
September 2017 approved that the force entrants should have their Cadet
ASPs/Inspectors as their date of appointment in the Force against the date of
their enlistment.
2. That
the Commission has passionately revisited its decision and has come to the
conclusion that the said decision in its intent and purpose contradicts the
principles of merger of service in the Public Service and it is violation of
Public Service Rule No.020908 (I & ii) which provides for retirement on
attainment of 35 years in service or 60 years of birth. That decision is hereby
set aside.
3.
Accordingly, the Commission at its 1st extra ordinary meeting of the
6th Management Board held on Friday 31st January 2025,
has approved the immediate retirement of those officers who have spent more
than 35 years in service and those above 60 years of age.”
However,
prior to the above resolution in Exhibit TC1, the Claimants herein had
approached this Court and obtained 2 judgments as evidenced by their Exhibits B
and C, wherein the Court in reaching its decision on the proper commencement
date of appointment of the Claimants resolved that it was the date they were
appointed as Force Entrants and not when they were enlisted as recruits. See
pages 26 of Exhibit B and page 17 of exhibit C.
Also,
in the said judgments of the Court, it was resolved that the decision of the 1st
Defendant at its 24th plenary meeting of 27th September
2017 which regularized the appointments of the Claimants as Force Entrants is
valid and subsisting and not subject to review by the 2nd and 3rd
Defendants.
[29]
The Defendants in challenging the position of the Claimants have argued that
they have the power to review their decisions and that reference was not made
to the judgment of the Court in the said Exhibit TC1 as such, they did not seek
to review the decision of the Court contrary to the impression being created by
the Claimants.
A
careful perusal of the 1st Defendant’s circular of 31st
January 2025 does not in any way refer to the judgments of this Court or any
Court at all. However, it is beyond any doubt that they were very much in the
know of the contents of the judgment of this Court before taking their decision
having already implemented the judgments vide letter dated 27th
April 2021 from the 1st Defendant (Exhibit D) and that of 30th
April 2021 from the 2nd Defendant (Exhibit G).
Relevant portions of the said letters read thus;
EXHIBIT
D;
“I am
directed to inform you of the outcome of the judgment of the National
Industrial Court of Nigeria on the above mentioned suits and the necessity for
its implementation.
2. This
is further to the earlier directive of the Commission on the resolution of its
24th Plenary Meeting held on 25th October 2017 on
regularization of date of first appointment of Force Entrants (See copy
attached for reference) ...”
EXHIBIT
G
“I am
directed by the Inspector General of Police to respectfully confirm that he has
directed the Force Secretary to comply with the judgments of the National
Industrial Court, Abuja in line with your request.”
However,
about four years down the line, the Defendants have now circumvented the
portion of the orders of the Court which expressly forbade 1st
Defendant from reviewing its decision of 27th and 28th
September 2017 vide the current circular of 31st January 2025. The
necessary implication is that even though the literal words used in the said
circular did not refer to the judgments of my learned brother Hon. Justice O.
O. Oyewunmi (as she then was), its real purpose was to set aside the clear
orders of the Court in the name of exercising administrative powers which is a
direct affront on the authority of the Court and I so hold.
[30]
Furthermore, because the judgments of the Court are still subsisting with no
Appeal upturning them, the natural effect as argued by Claimants’ counsel is
that the Defendants are estopped from taking any step contrary to such
judgments and I so hold. The doctrine of estoppel per rem judicatam as a legal
principle prevents parties from relitigating a matter that has already been decided
by a court of competent jurisdiction. See the case of AJIBODE V.
GBADAMOSI [2021]7 NWLR (PT. 1776) 475 @ 509, PARAS C-D and OBINECHE
V. AKUSOBI [2010]12 NWLR (PT. 1208) 383
[31] The other leg of contention by the
Defendants here is that the discovery of some acts of fraud arising from the
1989 Police wireless signal (Exhibit F) which birthed the issue of Force
Entrants necessitated their actions. This argument was canvassed to the effect
that because such fraud was not discovered, the Claimants hid under a crime to
obtain such judgments from the court and that allowing the Claimants will go
contrary to the provision of merger of years of service in the PSR. Claimants
counsel has argued strenuously against this issue stating that such was never
an issue before the trial court, this is in addition to the fact that the
submission that the issue of negating merger of service runs contrary to the
Public Service Rules, is only an afterthought.
[32]
I should state without any equivocation that the law is trite that all
judgments and decisions of Courts in Nigeria once delivered remain valid and
binding until set aside. See the case of KRK HOLDINGS (NIG.) LTD V. FBN LTD
(2017) 3 NWLR (PT.1552) 326 @ 335, PARA. C. The claims made by the
Defendants of fraud in procuring the police wireless message (Exhibit F) is an
issue that was never presented nor decided in Exhibits B and C. Hence, the
proper thing for them to have done was to have applied for the judgement to be
set aside vide a valid Appeal before the Court of Appeal, and raising such an
issue before it so that parties can present their positions on the issues.
Rather, than take up proper legal steps, the Defendants have sought to use
their administrative power in usurping the powers of the court and the judicial
arm of government at large. This if allowed, this will not only negate the
authority of the Court, but also stand in direct conflict with the Constitution
of the land that has prescribed the powers of the court to review decisions of
even the Executive arm of government, so long as it pertains to any question of
right or liability.
[33]
From all I have been saying above, it is my finding that 1st
Defendant by its circular of 31st January 2025 did sit on Appeal
over the judgments of this Court in suit
No. NICN/ABJ/345/2019- ACP AMBROSE EMENGAHA & ORS. V. POLICE SERVICE
COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP SUNDAY OKUGUNI & ORS V.
POLICE SERVICE COMMISSION & 2ORS and rewrote the decisions contained therein,
changed the date of first appointment of the Claimants from that of when they
were taken as Force entrants, to when they were enlisted as recruits. Thus, the
said circular is hereby set aside as applicable to the Claimants and
concerning their dates of first appointments and I so hold.
Issue
Three
[34]
Having just held above that the actions of the Defendants vide circular of 31st
January 2025 was ultra-vires, and in consideration of the reliefs sought by the
Claimants which is in the main restating their rights as already determined in
the judgments of Hon. Justice O. O. Oyewunmi (now JCA) in suit No. NICN/ABJ/345/2019- ACP AMBROSE
EMENGAHA & ORS. V. POLICE SERVICE COMMISSION & 2ORS; and
NICN/ABJ/353/2019- CSP SUNDAY OKUGUNI & ORS V. POLICE SERVICE COMMISSION
& 2ORS, it is my finding
that they are entitled to all the reliefs sought in this suit, having succeeded
in same.
[35] On the whole, the case of the
Claimants succeeds and the reliefs are granted as follows;
i.
It is hereby declared that the date of first appointment into
service of the Claimants as contained in their respective appointment letters
are not subject to a review by the Defendants.
ii.
It is also declared that the members of Cadet ASP (Force entrants)
of courses 18, 19 & 20 who are yet to serve 35 years of pensionable service
nor attained the age of 60 years, are by virtue of the said judgment of the
National Industrial Court delivered by Hon. Justice O. O. Oyewunmi in Suit Nos.
NICN/ABJ/345/2019
- ACP AMBROSE EMENGAHA & ORS. V. POLICE SERVICE COMMISSION & 2ORS; and
NICN/ABJ/353/2019- CSP SUNDAY OKUGUNI & ORS V. POLICE SERVICE COMMISSION
& 2ORS, excluded from the decision of the 1st Defendant at her first
extraordinary meeting of the 6th management board held on 31st
January 2025, approving the immediate retirement of those officers who have
spent 35 years in service or above 60 years in age.
iii.
A declaration is made stating that by virtue of the said judgments
of the National Industrial Court affirming the date of appointment of Claimants
as Cadet Officers as fresh appointment, the said appointment is not a merger of
service.
iv.
It is hereby declared that the Defendants cannot by any decision,
set aside the valid and subsisting judgments of this Court delivered by Hon.
Justice O. O. Oyewunmi in Suit Nos. NICN/ABJ/345/2019 - ACP AMBROSE EMENGAHA & ORS.
V. POLICE SERVICE COMMISSION & 2ORS; and NICN/ABJ/353/2019- CSP SUNDAY
OKUGUNI & ORS V. POLICE SERVICE COMMISSION & 2ORS, same having been
implemented by the Defendants since 29th July 2021.
v.
An Order is made setting aside the 1st Defendant’s
directive to the 2nd and 3rd Defendants contained in the
press release of 31st January 2025, as it concerns Courses 18, 19
& 20 (Force entrants).
vi.
An Order of perpetual injunction is also made restraining the
Defendants jointly and severally from unlawfully and illegally reviewing the
issue of dates of appointment of Cadet ASP’s of Force Entrants-Courses 18, 19
& 20 already settled by the judgments of the National Industrial Court.
vii.
An Order of perpetual injunction is also made restraining the
Defendants jointly and severally from unlawfully and illegally retiring any
member of Force Entrants-Courses 18, 19 & 20 who have not attained the
mandatory retirement age of 60 years.
Judgment
is hereby entered.
__________________
Justice R. B. Haastrup
JUDGE