MR. ALEXANDER OKOH & ORS v. UNIVERSITY OF LAGOS & ANOR (2010)

MR. ALEXANDER OKOH & ORS v. UNIVERSITY OF LAGOS & ANOR

(2010)LCN/4143(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of December, 2010

CA/L/83/02

RATIO

EMPLOYEE: DEFINITION OF THE WORD “EMPLOYEE”

The Oxford Advanced Learners’ dictionary 6th Edition at its page 379 defines “EMPLOYEE” as “a person who is paid to work” PER RITA NOSAKHARE PEMU, J.C.A.

SUPERNUMERARY: DEFINITION OF THE WORD “SUPERNUMERARY”

The word “SUPERNUMERARY” according to the Oxford Advanced Learned’ dictionary 6th Edition means “rare”, “formal” more than you normally need”, “extra” e.g. Supernumerary posts for trainees”. PER RITA NOSAKHARE PEMU, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF THE POLICE ACT CAP 359 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA 1990 AS IT RELATES TO THE APPOINTMENT OF A SUPERNUMERARY POLICE OFFICER

In the Interpretation Section of the Police Act (Section 2 thereof) the term “Supernumerary Police Officer ” means a Police Officer appointed under Sections 18, 19 or 21 of this Act or under an authorization given under Section 20 of this Act. Appointed by who, may I ask? I find it pertinent to reproduce Sections 18, 21, 22 of the police Act as it affects this issue, as I am of the view that these provision shall throw more light on this matter. Section 18 (1) thereof has this to say. ” 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” In section 18 (2) it states. “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 Officer in the force such member of persons as the Inspector-General thinks requisite for the protection of the property, to which the application relates” Section 18 (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 or Police division n which the property which he is to protect is situated. (b) Shall be employed exclusively on duties connected with the protection of that property (c) … (d) Subject to the restruction improved 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… …. (Underlined by me) The answer to my question above is that it is the “appropriate authority” that appoints Supernumerary Police officers as reflected in Section 18(2) of the police Act. PER RITA NOSAKHARE PEMU, J.C.A.

BURDEN OF PROOF: DUTY IMPOSED ON A PARTY WHO ASSERTS

It is trite, and indeed an elementary principle of law that he who avers, must of necessity prove. PER RITA NOSAKHARE PEMU, J.C.A.

TERMINATION OF CONTRACT OF EMPLOYMENT: WHAT A PLAINTIFF WHO SEEKS A DECLARATION THAT THE TERMINATION OF-HIS CONTRACT OF EMPLOYMENT IS A NULLITY MUST PLEAD AND PROVE

…a Plaintiff who seeks a declaration that the termination of-his contract of employment is a nullity must plead and prove inter alia the following. (a) That he is an employee of the Defendants. (b) How he was appointed and the terms and condition of his employment. See EGUASA DAVID ODIOSA v. AUCHI POLYTECHINIC (1998) 4 NWLR Pt. 546 Pg.477 at 487; OKOEBOR v. POLICE COUNCIL (1998) 9 NWLR Pt.566 at Pg.534. PER RITA NOSAKHARE PEMU, J.C.A.

STATUTORY PROVISION: PROVISION OF THE POLICE ACT AS IT RELATES TO THE CONDITIONS THAT MUST BE MET 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

Section 18 (5) of this Police Act has this to say “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 formally known as the Federal Territory to the Inspector General or, in the case of an officer appointed in respect of a Police area within 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” PER RITA NOSAKHARE PEMU, J.C.A.

INTERFERENCE WITH THE DISCRETION OF THE TRIAL COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE DISCRETIONARY EXERCISE OF THE LOWER COURT

In AWANI v EREJUWA 11 (1976) H SC 307, it was held inter alia that discretion conferred upon trial courts is generally unfettered and an appellate Court cannot ordinarily interfere with the exercise of the discretion unless it is shown that the discretion was wrongly exercised. PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

R.C. AGBO Justice of The Court of Appeal of Nigeria

I.M.M. SAULAWA Justice of The Court of Appeal of Nigeria

R.N. PEMU Justice of The Court of Appeal of Nigeria

Between

1. MR. ALEXANDER OKOH
2. MR. MUTIU ABUDU
3. MR. ADENIYI UWAIFO
4. MR. ASEPH IBINUOLAPO
5. MR. SUNDAY OGBEHIELE
6. MR. GABRIEL ADEWALE
7. MR. SOLOMON OYEWOLE
8. MR. CHRISTOPHER GABRIEL Appellant(s)

AND

1. UNIVERSITY OF LAGOS
2. VICE CHANCELLOR, UNIVERSITY OF LAGOS Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivered the Leading Judgment): By Notice of Appeal dated 15th October, 2001 and filed on the 15th October, 2001, the Plaintiff’s/Appellants, being dissatisfied with the decision of the Federal High court, holden at Lagos contained in the Judgment of Honourable Justice G.A.T. Jinadu delivered on the 16th day of July, 2001 in suit No.
FHC/L/CS/280/98 MR. ALEXANDER OKOH & 7 Ors AND UNIVERSITY OF LAGOS & ANOR whereby he dismissed the Appellants’ case, have appealed to this Honourable court. From Records, the gist of the Appellants case (as Plaintiffs in the lower Court) is this.
The Appellants were employed by the Respondents'(as Defendants in the lower court) university through the Lagos State police Command as Supernumerary Policemen at various times between 1982 and 1991, with salaries that ranged from EUSSS 04 to 05. The Respondents paid the Appellants salaries, allowances and other emoluments as instructed by the Nigeria police Force.
Sometime in June, 1996 and 1997 respectively, the Lagos state police command by its letter dated 12th June, 1996 and a reminder letter dated 10th January, 1997 communicated the change in the personnel emoluments of the Appellants to conform with other employees of the Respondents’ University.
The Respondents by their letter dated 31st March, 1997, and served on the 9th of April, 1997 terminated the employment of the Appellants with immediate effect and offered to pay only a months salary in lieu of notice which sum the Respondents refused to pay.
The Appellants subsequently protested to the Commissioner of Police Lagos State over the matter and the Commissioner of Police by his letter dated 9th September, 1997 sought explanation from the Respondent but no reply was given by the Respondents.
The Appellants had claimed that the mode of termination of their employment by the Respondents was contrary to the terms and conditions of employment of the Plaintiffs by the Respondents university and violates the Provisions of the police Act.
The Respondents denied the claim of the Appellants and stated that the University never employed the Appellants who were not entitled to salaries in lieu of notice, pension/gratuities and other emoluments.
The Appellants (as plaintiffs) in the lower court had then instituted an action at the Federal High court, Lagos in suit no FHC/L/CS/290/98 for the following declarations and order which are reflected in paragraph 15 of the Statement of Claim filed on the 11/11/1998
1. A. DECLARATION that the purported determination or Termination of the Plaintiffs’ appointment or employee with the Defendant’s University vide a letter dated 21st day of March, 1997, is wrongful, invalid, illegal and ineffectual.
2. A DECLARATION that the plaintiffs are similarly entitled to salaries in lieu of notice gratuities, pensions and other entitlements or allowances from the Defendants and other counterparts of the same cadre in the University/or Defendants’ employment
3. A DECLARATION that the plaintiffs are entitled to the Payment of their salaries, gratuities, pensions and allowances in accordance with the applicable University salary scale as at 31st day of March, 1997.
4. AN ORDER COMPLELLING the Defendants to work out and pay to the  Plaintiff’s their normal salaries in lieu of notice gratuities, pensions and allowance payable to the employee of the same cadre in the employment of the Defendants’ University.
5. N5,000,000.00(Five Million Naira) being damages for the unlawful, illegal, wrongful and invalid termination or determination of the Plaintiffs’ employment by the Defendants.
The parties in the suit, duly filed and exchanged their respective pleadings and the matter proceeded to trial. Resultantly judgment was delivered on the 17th of July, 2001, wherein the learned trial judge came to this conclusion inter alia. I agree with the submission of the learned Counsel for the defendants that the reliefs claimed by the plaintiffs can only be granted and awarded to them if this court finds that the plaintiffs were indeed employees of the defendants I have found that the plaintiffs  were indeed not employees of the Defendants but members of the Nigerian police Force. In that circumstance, they are not entitled to the grant of the declaration’s orders sought including damages Accordingly this action fails and it is hereby dismissed”.
from records and according to the Practice Direction of this court, the Appellants filed their notice of Appeal on the 15th of October 2001 and their brief of argument on the  2nd of July, 2002, while the Respondents on their part filed their final brief of argument on the 26th of January, 2008. on the 4th of October, 2010, Rotimi Jacobs Esq. adopted the Appellants’ brief while T.O.S. Fadahunsi Esq adopted the Respondent brief on same date.
In arguing the appeal, the appellants had proffered two issues for determination. I hereby reproduce same verbatim.
(1) Whether the plaintiffs/Appellants employment as Supernumerary Police men posted to the university of Lagos were properly terminated in accordance with the conditions and terms of their employment.
2. Whether the trial Court was right in its Judgment when it held that the reliefs sought by the employees of the Respondents which according to the Honourable Court they were not.
On their part, the Respondent had proffered one issue for determination and that is “Whether the Appellant were employees of the Respondent”. I am of the view that this is the crux of the matter.
The appellants had averred as shown in their statement of claim dated 11th November, 1998 and filed on same date, that “The plaintiffs are supernumerary policemen and at all times material to this suit on posting and employment with defendants.
2) “The plaintiffs aver that they were employed by the Defendants University  through the Lagos State Police Command as Supernumerary Police men at various times between 1982 and 1997 and the 1st to 7th plaintiffs were employed and commenced here with the defendants.”
The Appellants had filed four grounds of appeal, as reflected at pages 116-119 of the Record of Appeal.
Learned Counsel for the Appellants Rotimi Jacob Esq, had submitted that the Appellants brief was filed on the 2nd of July 2002, with leave of Court on the 27th of May, 2005. That the judgment of the lower court is at pages 87-115 of the Record of Appeal, and the Notice of Appeal is at pages 116-119.
He submitts that the narrow issue is that statutory provisions were not alluded to and that issue 1 is tied to grounds 1, 2 and 4 while issue 2 is tied to ground 3.
The Appellant counsel had argued that there is uncontroverted evidence that the Defendants (now Respondents) requested for supernumerary policemen from the Nigeria Police Force; that the Nigeria Police Force trained the Plaintiffs and transferred their services to the Defendants university. That by Exhibit C, D, A, B, B1 – B6  and the evidence of the witnesses, the Appellants are employees of the Respondents.  That the contract of employment need not be in writing in all cases, as it can be made orally. That from the evidence in this case, the lower Court would have inferred the existence of the contract of Employment between the Appellants and the Respondents.
He had argued under his issue 1 that this case is based first and foremost on the fact that the Appellants are Supernumerary Policemen whose employment are governed by law and statutory instrument and that the Respondents failed to comply with the Statute in terminating same.
That the Plaintiffs/Appellants (as reflected in paragraph 1 of the statement of claim) pleaded thus
“The Plaintiffs are Supernumerary Policemen and at all times material to this suit on posting and employment with the Defendants”.
In Paragraph 3 of the statement of claim the Appellants pleaded further that “The Plaintiffs aver that they were employed by the Defendants University through the Lagos State Police Command as Supernumerary Policemen.”
He argued that these paragraphs were admitted by the  Defendants/Respondents in their statement of Defence when they pleaded as  follows
“The Defendants admit paragraphs 1 and 3 of the Statement of Claim only to the extent that the Plaintiffs were Supernumerary policemen on posting to the University Lagos State police Command,.
The Appellants had contended that the facts pleaded in paragraphs 9, 12 & 13 of their statement of Claim further show the complaint and grievances of the Appellants.
Let me quickly state the facts in paragraphs 9, 12 & 13 of the Statement of Claim which are hereby reproduced verbatim.
PARAGRAPH 9
“To the chagrin and surprise of the plaintiffs, the Defendants by their letter dated 1st March, 1997 and served on the 9th April, 1997 purportedly determined the employment of the Plaintiff “with immediate effect” and offered to pay only a month’s salary in lieu of notice sum the Defendants neglected and or refused to pay”.
PARAGRAPH 12
“The Plaintiffs stated that they (Plaintiffs) were neither paid gratuity/allowance pension and various entitlements due to the Plaintiffs from the Defendants since the purported determination of the Plaintiffs employment by the Defendant contrary to the terms and conditions of the employment of the Plaintiffs with the Defendants university”.
PARAGRAPH 13
“The Plaintiffs would at the trial contend that.
(i) That Plaintiffs employment were not properly determined in accordance with the terms and conditions of the employment by the Defendants.
(ii) The determination of the Plaintiffs employment violates the provisions of the police Act Cap 359 LFN 1990 and the Regulation made there under.
(iii) The Plaintiffs are entitled to the payment of their gratuity/pension and other entitlements of Supernumerary Policemen.”
(iv) The Defendants failed to comply with necessary statutory provisions in determining the employment of the Plaintiffs thereby making its acts unlawful, void and non effectual.
(v) The termination of the Plaintiffs appointment by the defendants with immediate effect vide a letter dated 31st day of March, 1997 without notice and the non payment of salaries in lieu of notice is contrary to the terms and conditions of service of the Plaintiffs with the Defendants”
Learned Counsel for the Appellants had argued that the facts in these paragraph were not denied by the Defendant/Respondents. He further argued that the case of the Appellants is that their employment was not validly determined or discontinued by the respondents.
He posed this question.
“What is the nature of the Employment of the Appellants and how are the services or employment of supernumerary Policemen validly discontinued or determined? In answering this, learned Counsel for the Appellants had submitted that the relationship of the Appellants and Respondents are regulated by the Police Act Law of the Federation 1990, citing Section 18 (1), 18 (3) (a) 18 (3)(b); 18 (5) thereof
Learned counsel had argued that it is clear the Appellants were appointed under section 18(1) of the Police Act as  supernumerary Policemen for protection of property of the respondents. That thus by the provisions of the section 18(3) (b) of the Police Act, the Appellants were employed exclusively on duty connected with the protection of the property of the respondents’ University.
He had argued that it is the Police Act that defines the relationship between the Appellants and the university that employed them and the mode in which the relationship can be discontinued or determined.
He argued that the main issue is whether the Respondents properly discontinued or determined the service or employment of the Appellants.
That by Section 18 (5) of the police Act, it is mandatory that the Respondents give not less that two months notice to discontinue with the service of the Appellants. He argues further that Exhibit “E”, which is a letter addressed to the Commissioner of Police, Directorate of Finance and Administration, Lagos Police Command did not withdraw the service of the Appellant but terminated their employment with immediate effect and offered one month’s salary in lieu of notice. Therefore he argues, Exhibit E is not a notice to the Inspector General and it has no effect of withdrawing the service of the Appellants after two months. That Exhibit E is a mockery of the procedure prescribed under Section 18(5) of the Police Act, and that where a procedure is prescribed by statute, strict adherence is required.
He argued that the Respondents exceeded its power where it discontinued with the service of the Appellants by giving one months salary in lieu of notice vide Exhibit “E”. The Respondents, he further argued were acting under a wrong impression that they can terminate the appointment of the Appellants under Section 22 of the police Act.
That having given notice shorter that the statutory period required of two months the service of the Appellants have not been validly withdrawn in law. He argues that the Respondent cannot terminate the employment of the Appellant with immediate effect or with the one-months salary in lieu of notice. That by section 22 (1) and (4) of the police Act, it is the police Council or any Superior police Officer to whom that power has been delegated in accordance with the Constitution that can terminate Supernumerary Police officer by giving him a months’ notice or a months’ salary in lieu.
In concluding his submission regarding Issue 1 learned counsel urged this Honourable court to find that the appellants employment as supernumerary policemen posted to the University of Lagos was not properly determined in accordance with the terms and condition of their employment.
On issue 2, learned counsel had argued that the lower courts refusal to grant the reliefs claimed is borne out of the misconception of the Appellants claims as urged under issue 1.
He argues that the relationship between the Appellants as Supernumerary Police Officer, and the Respondents University is statutory.
Learned Counsel had argued (rather curiously in my view) that by Section 18 of the Police Act, the Appellants were conferred with a special statutory status over and above the normal contractual relationship master and servant.
Consequently the only way to discontinue with the service of the Appellants is to adhere strictly to the procedure laid down in Section 18 (5) of the Police Act. That since the Respondents contravened the said provision vide Exhibit “E”, this Honourable Court is empowered under Section 16 of the Court of Appeal Act to declare null and void the termination of the Appellants’ employment as Supernumerary Police Officers.
He urged this Honourable Court to that the employment of the appellants as subsisting until it is properly determined, and that this Honourable Court Orders the payment of the salaries of the Respondents until their employment is properly determined and two months notice served under Section 18 (5) of the Police Act.
Finally he urged this Honourable Court to allow the appeal and set aside the judgment of the federal High Court dated 17th July, 2001, and grant the reliefs sought in that Court.
Learned Counsel for the Respondents, T.O.S Fadahunsi in support of their lone issue, submits that if the answer to the issue raised is in favour of the respondents, i.e that the Appellants were not at anytime employees of the Respondents, the judgment of the learned trial Judge should be upheld.
Learned Counsel for the respondents, T.O.S Fadahunsi Esq. had argued that the respondents was established by the University of Lagos Act, Cap 457, Laws of  the Federation of Nigeria 1990. Any employee of the Respondent is an employment with Statutory flavour and the contract of service must be evidenced by a letter of employment. That the Appellants have been unable to produce any letter of employment, but rather relied on the Certificate of Service Exhibit “B” He submits that a certificate of service is not a letter of employment capable of creating and establishing any contract between the Appellants and the Respondents.
He refers to the enabling Act  University of Lagos Act Cap 457,  Laws of the Federation of Nigeria 1990. Article 14, the 4th Schedule to the Act which provides that “The administration and technical staff of the University, other than those mentioned in article 12 of this statute, shall be appointed by the Council or on its behalf by the Vice Chancellor or the Registrar in accordance with any delegation of powers made by the council in that behalf”.
He had argued that for any employee of the Respondents to establish any contract of service with the Respondents he must establish this by a letter of appointment and be governed by the Respondents’ enabling Act i.e. University of Lagos Act.
(Article 14.)
That there was never a time the Respondents cither by conduct or words employed the Appellants, but they were only on secondment which they admitted in Paragraph 3 of their Statement of Claim. That Exhibit “G” which is a letter of appeal for absorption into the employment of the Respondent was written by one of the Appellants. They submit that it is a fundamental documentary evidence of the relationship between the Appellants and the Respondents during the course of the deployment.
In answer to issues I and II of  the Appellants, learned counsel refers to the provisions of section 22 (3) of the Police Act. The Appellants whose employment and deployment were governed by the provisions of the Police Act were at the time of their deployment to Respondents, aware of the provisions especially that which say they are not eligible for any pension or gratuity. That the Appellants at Page 5 of the Record of Appeal admitted that the relationship of the Appellants and  Respondents are regulated by the police Act with emphasis on Section 18 (5) of the Act.
He submits that sciton 18(5) of the police Act is only applicable to those Supernumerary Police Officers who were appointed in accordance with the provision of the Sections and not the Act. That the application for their employment should have been treated by the Inspector General of Police and indeed the discontinuance of their services to comply with the Section by a two months notice.
Learned Counsel urges this Honourable Court to uphold the Judgment of the learned trial Judge and dismiss the appeal holding that the Respondents lawfully determined the development of appellants from its services.
At the trial in the lower court the plaintiff (now Appellants) called three witnesses PW1, PW2, and PW3. (all Police  Officers). Indeed PW1 & PW2 are Supernumerary Police Officers.
On their part the Respondents fielded just one witness DW1.
I shall consider the relevant portions of the witnesses evidence as I go on. But, having painstakingly perused the evidence put forth by the respective parties, both oral and documentary, and having scrutinized the issues proffered by their Counsel in their respective brief of argument, I am of the view that the issue for determination Strictu Sense is
(1) Whether the Appellants (plaintiffs) in the court below were employees of the respondents and thereby entitled to the reliefs sought by the Appellants?
The Oxford Advanced Learners’ dictionary 6th Edition at its page 379 defines “EMPLOYEE” as “a person who is paid to work”
The word “SUPERNUMERARY” according to the Oxford Advanced Learned’ dictionary 6th Edition means “rare”, “formal” more than you normally need”, “extra” e.g. Supernumerary posts for trainees”.
Now, for what purpose were the Appellants employed? By their own showing, they were employed as Supernumerary Policemen as evidenced by the testimony of the Plaintiffs’ witnesses at the trial. (PW1 and PW2 to be precise).
The issue of Supernumerary Officers is addressed in the Police Act Cap 359 Laws of the Federal Republic of Nigeria 1990.
In the Interpretation Section of the Police Act (Section 2 thereof) the term “Supernumerary Police Officer ” means a Police Officer appointed under Sections 18, 19 or 21 of this Act or under an authorization given under Section 20 of this Act. Appointed by who, may I ask?
I find it pertinent to reproduce Sections 18, 21, 22 of the police Act as it affects this issue, as I am of the view that these provision shall throw more light on this matter.
Section 18 (1) thereof has this to say.
” 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”
In section 18 (2) it states.
“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 Officer  in the force such member of persons as the Inspector-General thinks requisite for the protection  of the property, to which the application relates”
Section 18 (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 or Police division n which the property which he is to protect is situated.
(b) Shall be employed exclusively on duties connected with the protection of that property
(c) …
(d) Subject to the restruction improved 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… …. (Underlined by me)
The answer to my question above is that it is the “appropriate authority” that appoints Supernumerary Police officers as reflected in Section 18(2) of the police Act.
It is trite, and indeed an elementary principle of law that he who avers, must of  necessity prove.
PW1, at the lower Court is the 1st Plaintiff/Appellant. He is Alexander Okoh who testified on the 17th of June, 1999 ,28th July, 1999 and 4th August, 1999 respectively. He did testify that he was a Supernumerary Police Officer working under the 1st Defendant.
Under cross-examination at Page 41 of the record of Appeal he had this to say inter alia.
The terms and condition of our employment were that we should do our work diligently”
He further testified
” I was not given any document stating the alleged employment”
Under cross-examination of pw3, Clement Mathew Attah, a DSP in charge Legal Department, Lagos state Command, he had this to say at pages 51 of the Record of Appeal.
The Conditions of Employment sent to the 1st Defendant was not a directive but an advice”.
At Page 52, of the Record of Appeal he had this to say “I agree there are conditions of Service for Supernumerary Constables meant for corporate bodies, applying for Supernumerary Policeman. The Federal Government issued the conditions. I now say issued by the Nigerian Police on behalf of the Federal Government.”
The witness for the Respondents at the lower Court is DW1 – chief Mrs. Kofoworola Oyinade Odeyemi, Deputy Registrar in charge of junior staff units who had this to say, inter alia on the 19th of July, 2000, when she testified as shown at Page 55 of the Record of Appeal.
“I know that the plaintiff’s were police Officers requested to serve in the 1st Defendant as Security Officers. The 1st Defendant wrote the Police Headquarters and requested for their Services. The police employed them. The police Headquarters trained them. The 1st Defendant would have to pay the Police Headquarters for them to get their salary. Such payments do not include pension and gratuity because they are not University Staff”.
Again at page 56 of the Record of Appeal, she had this to say “I know that the Plaintiff at one time or the other, the plaintiff wrote asking to be made permanent staff to as to be entitled to pensions and gratuities but the University said that could not be done since they are not permanent staff”.
She again did say at page 57 of the Record of Appeal.
“There was no instruction from the police Headquarters as to how we should terminate their Employment”
Decidedly, a Plaintiff who seeks a declaration that the termination of-his contract of employment is a nullity must plead and prove inter alia the following.
(a) That he is an employee of the Defendants.
(b) How he was appointed and the terms and condition of his employment.
See EGUASA DAVID ODIOSA v. AUCHI POLYTECHINIC (1998) 4 NWLR Pt. 546 Pg.477 at 487; OKOEBOR v. POLICE COUNCIL (1998) 9 NWLR Pt.566 at Pg.534.
I must give a hypothetical situation to this issue. It is in the form of a  question.
would Police Orderlies posted to establishments and persons for their protection and that of their property be regarded as employees stictu sensu? to be entitled to be paid pension and gratuity by the establishment and persons they are deployed to? I think the answer would necessarily be in the negative, relied on by the Appellants’. But with respect the provisions of this Act do not regulate the Respondents, but the Police. At least it has not been proved to regulate the Respondents particularity vis-‘E0-vis the Appellants.
The Appellants in their capacity as Supernumerary Police Officer had exhibited no document to buttress their assertion that they were appointed by the Respondents, neither was there anything to show that regulates their relationship by way of terms and condition of service.
If the Appellants allege that the Respondents relationship with the Appellants is coated with statutory flavour, where is the document to buttress this?
The Appellants had tendered Exhibits A, B, B1-B6 and G. exhibits A, B, B1-B6 are termed “Certificate of Service” which states thereon commencement and termination of Service. This they did as a feeble attempt on their part to make the said exhibits the terms and conditions of their employment. With respect – ex facie, exhibits “A” “B” “B1″ -B6” and “G” cannot be letters of appointment by any stretch of imagination.  Neither do these exhibits say anything about terms and conditions regulating the relationship between the Appellants and the Respondents.
I shall dwell more on this as I go on in this judgment.
The Appellants had also relied on Exhibit “C” which is titled “Condition of Service and Personal Emoluments of the Supernumerary Police. It is dated 12th June, 1996 with reference No. 3100/LS/Vol.1/4, addressed to the Registrar.
University of Lagos, Akoka and signed by one Bayo Ajileye, Chief Superintendent of Police (Admin). Notably is that this letter came in a year before the Appellants were issued with exhibit “A”, ‘B1 – B6′ and “G’. In the first paragraph of Exhibit C, it says
“This is to notify you of the recent changes in personal emolument structure of the Supernumerary Police personal deployed to your establishment for your necessary action”
Regrettably, there is no “Personal emolument structure” exhibited before the trial Court in the first place. The Appellants case is that they were employed between 1982 and 1991 . There is no evidence to buttress this assertion. The allegation that they should have been given three months salary in lieu of notice is not supported by evidence. There is no document tendered by Appellants to show that they were entitled to the emoluments claimed or to pension and gratuity for that matter.
You cannot put something on nothing. The absence of a cogent credible document governing the purported relationship between the Appellants and the Respondents, as to make the Appellants employees of the Respondents is fatal to the case of the Appellants, as none was exhibited. Therefore the issue of improper termination becomes innocuous and of no moment.
In their brief of argument learned Counsel for the Respondents has argued that the Appellants were merely on secondment which the Appellants admitted in paragraph 3 of their Statement of Claim. I am poised to agreeing with this submission.
He had argued that a Certificate of Service (relied on by the Appellants) cannot be converted to a letter of employment I agree with this’.
The Appellants heavy reliance on the Police Act is a misconception. They had sued the Respondents. The Respondents were not the Police authority. He should have sued the “Appropriate Authority” as Defined in the Police Act.
However the relevant provisions of the Police Act, earlier referred to cannot be ignored in considering this appeal, to see how much it advances the case of the Appellants. Added to those provisions.
Section 18 (5) of this Police Act has this to say “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 formally known as the Federal Territory to the Inspector General or, in the case of an officer appointed in respect of a Police area within 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?
Section 22 (1) of the Police Act. 359 LFN 1990 has this to say;
“Every supernumerary Police Officer shall, on appointment, be enlisted to serve in the Force from month to month, and accordingly supernumerary Police Officer MAY, at any time resign his appointment by giving one months notice in that behalf to the Superior Police Officer in charge of the Police area in respect of which he is appointed and his appointment MAY be determined by the appropriate authority on one months’ notice in that behalf or on payment of one months pay instead of such notice (underlined by me)
Section 21 (2) (c) of the Police Act states that.
“Subject to the restriction imposed by paragraph (a) 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 shall be a member of the Force in all purposes and shall accordingly, be subject to the provisions of Act and in particular the provisions thereof relating to discipline”
Now Section 22 (3) of the Police Act has this to say.
“A supernumerary Police Officer shall have no claim on the police Reward fund, and without prejudice to any liability under the Workmen’s compensation Act, to pay compensation to or in respect of any person by virtue of his employment as a supernumerary  Police Officer, a person ‘s service as such an officer shall not render it or  any other person eligible for any pension, gratuity or annual allowance under this Act or the Pensions Act”
The Appellants had averred in the in statement of claim filed on the 11th of  November, 1998 at Page 20 of the Record of Appeal that
1) “The plaintiffs are supernumerary police men and at all times material to this suit on posting and employment with the Defendants. (underlined by me)
2) The Plaintiff aver that they were employed by the Defendants University through the Lagos State Police Command as supernumerary policemen at various times between 1982 and 1997 and the 1st to 7th Plaintiffs were employed and commenced work with the Defendants…. “(underlined by me)
Reading together the provisions of section 18(3), 18 (5), 22 (1), 22 (3) of the Police Act it seems to me that a supernumerary police officer by virtue of Section 22 (1) may resign his appointment by giving one month’s notice to the superior Police officer in charge of the Police area in respect of which he is appointed and his appointment may be determined by the appropriate authority with one months’ notice in that behalf, or on payment of one months’ pay instead of such notice. Section 18 (5) specifically talks about “not less than two months notice in writing ” 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 in that state, and at the expiration of such notice the services of the supernumerary Police Officer in question shall be withdrawn.
But Section 22 (3) of the Act affords a supernumerary Police Officer not eligible for any pension, gratuity or annual allowance under the Police Act or the Pensions Act.
The term “appropriate authority” is defined in Section 22(4) of the Police Act thus.
22: (4)” In Sections 18 to 21 of this Act and this Section the “Appropriate Authority” in relation to any power to appoint supernumerary Police Officers means the Nigeria Police Council or any Superior Officer to whom that power has been delegated in accordance with Section 194 (1) of the Constitution of the Federal Republic of Nigeria” (now Section 153(1)”.
Section 153 (1) (m) talks about Police Service Commission and by the provisions of Section 30 (a) and (b) of Part I to the third (3rd) Schedule to the Constitution of the Federal Republic of Nigeria 1999 it is the appropriate authority who appoints and dismisses persons in the Nigeria police Force (other than the office of the Inspector General of Police). It seems to me that it is this appropriate authority that appointed the Appellants who were deployed to work for the Respondents. Pure and simple.
I have had to reproduce the relevant provisions of the Police Act as it affects this appeal, because learned counsel for the Appellants had made a heavy weather of it.
The Respondents were never empowered to appoint or dismiss the Appellants. The Appellants were only deployed to do a work for the Respondents on a temporary basis. They were simply on an assignment.  They were appointed by the Police and deployed to the Respondents establishment. They were not entitled to any pension or gratuity. They have proffered no evidence to suggest that they were so entitled. Even the Police Act, which they rely on denies them pension and gratuity.
The nature of their job as Supernumerary Police Officers vis-a-vis the Respondents was a “deployment” or “posting” that was needed to fill a particular vacuum, but does not connote an employment of a permanent nature that attracts pension and gratuity.
By Section 22 (3) of the Police Act, supernumerary Police Officers are not entitled to pension and gratuity. What gives the Appellants the idea that they are entitled to such from the Respondents? Assuming they are entitled, where is the evidence that suggest this? I see none. To allow the reliefs sought by the Appellants would open up a floodgate of such claims as these even from any Police Officer deployed to work in places other than the Police Force.
As earlier observed, Paragraph 1 of the Plaintiffs Statement of claim as reflected at Page 20 of the Record of Appeal states unequivocally that the Appellants were on posting to and employment with the Defendants. For purposes of elucidation, I shall reproduce it verbatim.
1. “The Plaintiffs are supernumerary Policemen and at all times material to this suit on posting and employment with the Defendants”
For good measure, I shall reproduce Paragraphs 3 at Page 20 of the Record of Appeal. It says
3 ” The Plaintiffs aver that they were employed by the Defendants University through the Lagos State Police Command as supernumerary Policemen at various times between 1982 and 1997 and the 1st to 7th Plaintiffs were employed and commenced work with the Defendants.. …”
Notably is that these facts were admitted in Paragraph 1 of the Defendants (now Respondents) Statement of Defence which is reflected at Page 25 of the Record of Appeal. The parties are therefore agreed on that issue.
The claim of the Appellants at the lower Court is one seeking inter alia declaratory reliefs, which attracts the unfettered exercise of the discretion of the learned trial Judge, as long as that discretion is exercised not only judicially, but judiciously. Such exercise of discretion judicially and judiciously depends by and large on the peculiar circumstances of each case. And it is this need to consider the peculiar circumstances of each case which underscores the principle that in matters of the courts exercise of discretion, no case can be a binding authority for another. See ODUSOTE, v ODUSOTE, 1971. NWLR, 228.
when the learned trial Judge at page 114 of the Record of Appeal said in her judgment that
” I had found that the Plaintiffs were indeed not employees of the Defendants but members of the Nigeria Police Force”.
she exercised her discretion judiciously and judicially, having appraised the evidence before her and indeed the submissions of the Counsel to the respective parties.
In AWANI v EREJUWA 11 (1976) H SC 307, it was held inter alia that discretion conferred upon trial courts is generally unfettered and an appellate Court cannot ordinarily interfere with the exercise of the discretion unless it is shown that the discretion was wrongly exercised.
I am of the view that the learned trial Judge exercised her discretion rightly.
The exhibits heavily relied on by the Appellants are Exhibits A, B, B1, – B6  and G. Exhibits A, B, B1-B6 are identical documents in the sense that they are termed “Certificate of Service” issued by the Respondents to the Appellants.
For  purposes of elucidations, I shall reproduce Exhibit “A” verbatim. This was issued to the first Appellant, Alexander Okoh.
UNVERSITY OF LAGOS”,
YABA
CERTIFICATE OF SERVICE
This certificate is given without alteration or erasure of any kind’
FACULTY/DEPARTMENT SECURITY UNIT
I certify that MR. ALEXANDER OKOH whose signature is appended, was employed in this University as specified below’
POSITION AT TIME OF LEAVING SERVICE
SERGEANT
Commenced 11th January, 1982
PERIOD OF SERVICE Date
Terminated – 31st MARCH, 1997
SALARY AT DATE OF LEAVING SERVICE – EUSS 06.
CAUSE OF LEAVING – EXPIRATION OF APPOINTMENT.
ANY OTHER REMARKS – HE HAS THE QUALITY OF LEADERSHIP.
HE WAS VERY HUMBLE, EFFICIENT, AND HIGHLY INTELLIGENT.
HE WAS VERY REGULAR AND PUNCTUAL
Any further information concerning OKOH work and conduct will be given in confidence on regret.
Signed ADEBAYO AKINDE
For Registrar
Date 23rd December, 1997.
Signed
Signature of Employee”
To me ex facic Exhibits A, B, B1-B6 are testimonials. Akin to those give to college students at the end of their college period, indeed to University graduates.
These exhibits have no semblance to, neither can they be interpreted to be Conditions of Service.
Exhibit “G” is alluded to in Ground 2 in this appeal which learned Counsel for the Appellants submits, is tied to Issue No. 1.
Let me reproduce Exhibit “G” verbatim. It is headed
“APPLICATION FOR SUPERNUMERARY
POLICE MEN AS A PERMANENT STAFF.”
It is a hand written letter dated 9th September, 1992, addressed to the Vice chancellor University of Lagos via the Registrar, from one Sergeant No. 1073, Olawunmi Taiwo, who is not an Appellant in this appeal neither was he a party in the Court below.
It says
“Sir,
APPLICATION FOR SUPERNUMERARY POLICE MEN AS A PERMANENT STAFF
We are the supernumerary police men posted from Oduduwa Police Command GRA Ikeja to this University of Lagos Akoka, Yaba. And we are serving under University on their own instruction. With much respect and humbly to staff us as their own permanent staff. So that, at the end of our service, should not be useless by serving nothing without collecting our Gratitude or pension.
In fact many of us had been serving up to three years to ten years with this University of Lagos with happiness and peace. So we appeal to University Authority to staff- us as their own staff.
This application was written on behalf of supernumerary policemen serving in the University of Lagos.
We will be very grateful if this our request can be favourably considered.
Waiting for your kind approval sir.
Those are the named of supernumerary policemen serving with the University of Lagos under your instruction.
Yours Obediently
Sergeant No. 1073
Olawunmi Taiwo”.
Notably on Exhibit G is that the names of the Appellants on record are only reflected as Numbers 1, 3, 6, 7, 8, 11, 12 and 17 of the eighteen names listed on Exhibit “G”. However, there are only eight Appellants on record and not 18.
Exhibit “G” was written in 1992. The Suit in the lower Court was instituted in 1998. Exhibit A was issued in 1997; Exhibits B, B1,-B6 were issued in 1997.
Exhibit “G” from its contents show that the Appellants wanted to be absorbed as permanent staff as far back as 1992. It means they were never permanent staff. Indeed the facts in Exhibit “E” which was written by the Respondents on the 31st of March, 1997 to the Commissioner of Police, Directorate of Finance and Administration. The Nigerian Police, Lagos State Police Command, Ikeja, is instructive. I hereby reproduce same verbatim.
UNIVERSITY OF LAGOS, NIGERIA
OFFICE OF THE REGISTRAR
Ref. No. AD/REG/180.
31st March, 1997
The Commissioner of Police,
Directorate of Finance and
Administration,
The Nigerian Police
Lagos State Police Command
Ikeja.
Dear Sir,
DETERMINATION OF EMPLOYMENT OF SUPERNUMERARY POLICE WORKING IN THE UNIVERSITY’S SECURITY UNIT.
This is to inform you that the University of Lagos will no longer need the services of Supernumerary Police personnel working with the University Security unit.
This decision is with immediate effect. The eight affected officers will be paid a months’ salary in lieu of notice.
Thank you for your assistance thus far. I hope we can count on your continued support should the University again require the services of Supernumerary Policemen.
yours faithfully
Signed
O.A. ADERIBIGBE
Acting Registrar
CC: A.g Chief. security Officer
Sgt. A. Okoh”.
It was on the same date that Exhibit “E” was written that the Appellants were issued with Exhibits A, B, B1-B6 respectively. The Respondents did not bother to reply to Exhibit “G”. This is because they knew that the Appellants were not entitled to what they demanded. Ipso facto, the Appellants knew that they were never permanent staff of the Respondents from the inception of their relationship in 1992, and this is why they wrote Exhibit “G”.
I had taken pains to reproduce there exhibits for purpose of elucidation.
In all, tying the issues for determination formulated by the Appellants to their grounds of appeal, it is my view that there is dearth of evidence,, to establish that the Appellants were employed by the Respondents on a permanent basis, as to entitle them to the reliefs claimed in their Statement of claim. There are no documents, latent or patent that were exhibited to show the purported relationship between the parties, by way of Terms and conditions of service, as to payment of salaries, emoluments, appointments, termination of same etc.
The Police Act relied on by the Appellants regulates the relationship between the Police Service Commission and the Police Force.
The Appellants, as it concerns the issue of their appointment, emoluments, termination of appointments have to do with the provision on the Police Act hereby relied on by them. The Respondents are out of it.
Therefore the issue of improper termination of the Appellants by the Respondents become Innocuous.
In fact, it is the Police Service Commission that should have been sued and not the Respondents I hereby reiterate that the Appellants were employees of the Respondents, albeit on a temporary basis, to do some “work” or “assignment” which is not pensionable and to which gratuity is not tied. The nature of their job as Supernumerary Police Officers was something “extra” that is needed to fill a particular vacuum in the Respondents establishment but does not connote all employment of a permanent nature that attracts any form of pension and gratuity.
There is nothing to show that their employment was wrongfully terminated because there exists no document spelling out the terms and conditions of the said employment in the first place.
The consequence is that I do not see any reason why the Judgment of the learned trial judge in the Court below should be disturbed, as in dismissing the suit she exercised her discretion judicially and judiciously on the basis of the evidence before her. The result is that the two issues formulated by the Appellants as distilled from their grounds of appeal are hereby resolved in favour of the Respondents.
Accordingly the appeal is one which lacks merit in its entirety and same shall be and is hereby dismissed while the Judgment of the learned trial Judge Hon. Justice G.A.T. Jinadu delivered on the 16th day of July, 2001 in Suit No. FHC/L/CS/280/98 – MR. ALEXANDER OKOH & 7 ORS AND UNIVERSITY OF LAGOS & ANOR. is hereby affirmed with N40,000 costs in favour of the Respondent.

R.C. AGBO, J.C.A.: I agree with the judgment just delivered by Hon. Justice RITA NOSAKHARE PEMU, J.C.A.

IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice R.N. Pemu, J.C.A, had graciously served me a copy of the draft of the lead judgment just delivered. I had read, before now, the said judgment, the briefs of argument of the learned counsel to the respective parties, as well as the record of appeal, as a whole. Thus, I hereby concur with the reasoning and conclusion reached in the leading judgment, to the effect that the instant appeal lacks merit in its entirety. I adopt the said reasoning and conclusion as mine.
In the lead judgment, a sole issue has been aptly identified for the determination of the appeal to wit:
“(1) Whether the Appellants (plaintiffs) in the court below were employees of the Respondents and thereby entitled to the reliefs sought by the Appellants?”
It is trite that the word ‘supernumerary’ is a Latin derivative – “supernumerary”, literally meaning ‘persons above number’. It’s, need a compound word – ‘super’, meaning above, over, higher; and ‘numeri’ denoting ,number,. Hence, the terms ‘supernumerary witness’; supernumerary clerk; supernumerary police officers et al. The term denotes officials above or beyond the permitted number. The term had been very commonly employed in England with exceptional reference to advocates who were unregistered and not attached to any particular bar. See ORGAN v. NIGERIA LIQUIFIED NATURAL GAS LTD (2010) ALL FWLR (pt.535)239 at 329 per Saulawa, JCA.
It is trite that the Nigeria Police Force is a creation of the constitution of the Federal Republic of Nigeria, 1999. see sections 214 – 216 of the 1999 constitution. Contrariwise, supernumerary police (Force) is a creation of the police Act. By virtue of section 2 of the police Act, a supernumerary police officer denotes a police officer appointed (specifically) under sections 18, 19, or 21 of the Act, or under an authorization given under section 20 thereof.
Most instructively, there are at least four circumstances or conditions under which supernumerary police officers can be appointed, in accordance with sections 18, 19, 20 or 21 of the police Act.
From the pleadings and evidence, contained in the record of appeal, it’s not in dispute that the Appellants were appointed as supernumerary police officers.
By virtue of section 18(4) of the police Act –
(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, sum 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 deportment of the Government of Federation.
It is a well settled principle of law, that where the services of a supernumerary police officer are terminated or withdrawn, pursuant to subsection (5) of section 18 of the police Act, in the course of a quarter for which the sum mentioned in subsection (4)(b) of section 18 (supra) has been paid to the Accountant-General, he shall pay to the person by whom that sum was paid, a sum proportionate to the unexpired portion of the quarter. See ORGAN VS. NIGERIA LIQUIFIED NATURAL GAS LTD (supra) at 336 B – D.
In the instant case, it’s most instructive that the reliefs sought by the Appellants, as per the statement of claim thereof, contained at pages 20 – 23 are to the effect, inter alia, that they should be paid –
” – salaries in lieu of notice, gratituities, pensions and allowances payable to the employee of the same cadre in the employment of the Defendants’ University.”
However, there is no doubt that by virtue of the well set out provisions of section 22 of the police Act (supra), every supernumerary police officer shall, on appointment, be enlisted to serve in the Force from month to month, and his appointment may be determined by the appropriate authority on one month’s notice, or on pay of one month’s pay in lieu of notice. He shall have no claim on police reward fund. He shall also not be eligible or entitled to pension, gratuity or annual allowance under the police Act or the pensions Act. See ORGAN VS. NLNG LTD (supra) at 335 paras. E – F.
Hence, in the light of the foregoing postulation, and the extensive reasoning and conclusion reached in the lead judgment, I no longer have any hesitation in holding that the instant appeal is devoid of merits, and same is hereby dismissed by me. The judgment of the court below, delivered on July 16, 2001 in suit No. FHC/L/CS/280/98, is hereby affirmed.
I abide by the N40,000 costs awarded in favour of the Respondents.