A Federal High Court sitting in Abuja yesterday voided the Police Act which restricts officers from suing the Police authorities. The Chief Judge, Justice Mustapha Abdullahi, said
the Act is inconsistent with Section 36(1) of the 1999 Nigerian Constitution, which grants right to fair hearing and natural justice to an individual.
He gave the verdict yesterday in the suit filed by the former Chairman, Economic and Financial Crimes Commission (EFCC), Mallam Nuhu Ribadu, against the Police Service Commission (PSC), on his alleged unlawful dismissal from the Police.
He dismissed Section 352 of the Police Act 1990, which says: “Any police officer who feels himself wronged by his superior police officer either: (a) in respect of a matter of a complaint not being redressed; or (b), in respect of any other matter, may complain to the Inspector-General of Police.”
Justice Abdullahi said the word, ‘may’ in the section, is a discretional right.
“To my mind, it is a right which may not be exercised. It is not a right that can restrain the plaintiff from coming to court,” Justice Abdullahi said.
He also dismissed the arguments raised by the Inspector-General of Police’s (IGP’s) counsel, Milton Ohwovoridle (SAN), who referred to Section 367 of the Police Act that except with “prior approval of the Government, no police officer shall institute any legal proceedings in his own personal interest in connection with matters arising out of his public duties.”
The judge asked what happens if the permission is not granted within the three months of cause of action.
He said: “It will be fool-hardy for plaintiffs to write for application which may never come.”
According to him, even if it comes, the action may be statute-barred because the permission may not come within the three months allowed under the Public Officers Protection Act.
“To say the same plaintiff must seek the approval of the Federal Government before seeking redress is against the constitution. Police Act is inconsistent with 1999 Constitution, it is hereby voided,” the judge ruled.
He referred to Olatawura (JCA, as he then was), in Imo State Government V. Greeco Construction and Engineering Ass. Ltd, reported in (1985) 3 Nigeria Weekly Law Report (NWLR) (Pt.11) 71 at 78, where he said as follows: “Where the hearing of a suit between two parties depends on the assent of one of the parties before the suit can be heard, the other side, who is refused assent, is denied access to the court and consequently, cannot be heard.”
Justice Abdullahi further held that Ribadu did not need to serve any pre-action notice on the PSC as argued by Ohwovoridle.
He also held that the suit is not an abuse of court process because the other suit filed by Ribadu on the same issue had been discontinued.
Justice Abdullahi added that Ribadu’s suit before Justice Adamu Bello of the Federal High Court, Abuja is the one challenging his demotion and not dismissal.
On the final issue which was to determine whether the suit was wrongly commenced through Originating Summon, the judge said it ought to have been commenced through writ of summon because the disputed facts in the substantive suit could only be settled through oral evidence.
“Allegation of infringement of the rights of the plaintiff to fair-hearing cannot be resolved through Affidavit Evidence,” he said.
While the defendants were still celebrating thinking that the suit would be struck out, Justice Abdullahi surprised them with his last order: “It is hereby ordered that the proceeding is converted to the one proceeded by writ of summon. The plaintiff has seven days to file the statement of claims and the respondents have seven days to file the statement of defence.
“I hope the police are in this court. Today, it is Ribadu, tomorrow it may be another person.”
By the indication of the court’s judgment, the presence of Ribadu in court to testify may be inevitable.
His counsel, Tayo Oyetibo (SAN), described the judgment as a victory to all police officers in Nigeria. According to him, “The next stage is to proceed to the history of the unlawful dismissal.”
Asked if Ribadu would come to the court to give oral evidence, Oyetibo said: He (Ribadu) has never been afraid of appearing in court.”
The matter has been adjourned till July 27 for continuation.
Ribadu was dismissed from the Nigeria Police on December 22, 2008, after he was found guilty of allegations of improper dressing and misconduct made against him by the Police authorities.
Dissatisfied, he filed a suit at the Federal High Court, challenging his dismissal.
In an Originating Summon, dated January 7, filed by his counsel, Oyetibo (SAN) and Charles Musa Esq, Ribadu wanted the court to declare his dismissal as unconstitutional, null and void.
He said that his dismissal, on the basis of the allegations contained in the PSC’s letter dated December 22, 2008, was an infringement on his right to fair-hearing and natural justice.
Defendants in the suit are the PSC, the I-G, Mike Okiro and the Attorney-General of the Federation and Minister of Justice, Michael Aondoakaa (SAN).
Adopting his brief at the last sitting, the PSC counsel, Ahmed Tijani claimed that Ribadu was dismissed in accordance with the Civil Service rule after he was issued a query which he replied.
Counsel to the IGP, Ohwovoriole (SAN) had argued that Ribadu failed to seek permission from Okiro before filing a suit against the Police, an action he said, was against the Police Act 1990.
Miffed by the submission, Justice Abdullahi asked if the Police Act is superior to the Nigerian 1999 Constitution, which grants right to fair-hearing and natural justice to an individual.
Referring to some exhibits, Ohwovoriole had insisted that Ribadu was heard because he was issued a query which he replied to.
In support of his argument, he cited Sule V. Nigeria Cotton Board, 1985, All Nigeria Law Report (reprint) 291, which states that: “When a servant grows too big to obey his master, the honourable course open to him is to resign in order to avoid unpleasant consequences should the occasion which calls for obedience be serviced with disobedience.”
Besides, Ohwovoriole (SAN) maintained that the suit was wrongly commenced through Originating Summons instead of writ of summons. According to him, Originating Summons is not proper mode to initiate an action where there are disputed facts.
Counsel to the AGF, Chukwuemeka Onyeaka, aligned with the submission of other defence counsel.
But Ribadu’s counsel, Oyetibo (SAN) urged the court to discountenance the submissions of the defence counsel.
Contrary to claims by the defence counsel, he insisted that Ribadu was denied fair hearing, adding that the disciplinary committee raised by the IGP was not proper in law.
“When opportunity to be heard is afforded by a body that has no power in law to do so, the hearing is a nullity”, Oyetibo argued.
The Nation recalls that the police issued Ribadu a query dated November 21, 2008 on grounds of improper dressing,discipline and serious acts of misconduct. Ribadu was asked to explain in writing which he did.
As a follow-up, the IGP set up a disciplinary committee to investigate the allegations. According to the Police, the former EFCC boss turned down the request of the committee to appear before it twice.
Police claimed that by so doing, he had frittered away the opportunity to be heard.
But Ribadu believed the IGP and the disciplinary committee set up by him were not the appropriate authorities to exercise disciplinary powers against him.
The A-GF in a Counter Affidavit deposed to by Simon Egede also accused him of choosing the “path of blackmail, insubordination and court actions contrary to police regulations and discipline.”
He also explained that Ribadu was not a victim of any power play because he was demoted along with about 140 other police officers who had been irregularly promoted and were reverted to their lawful ranks by the police service commission.
Ribadu is seeking the following reliefs:
• A DECLARATION that by virtue of the provisions of Sections 36, and 153 [m], paragraph 30 [b] of the 3rd schedule of the 1999 Constitution, Article 7 of the African Charter on Human and People’s Rights [Ratification and Enforcement] Act CapA9 Laws of the Federation 2004 and the rules of natural justice, the Plaintiff is entitled to be afforded an opportunity of being heard by the 1st Defendant before the 1st Defendant took its decision to dismiss the Plaintiff from the Nigeria Police Force on the basis of the allegations contained in the 1st Defendant’s letter dated 22nd December, 2008.
• A DECLARATION that the dismissal of the Plaintiff from the Nigeria Police Force by the 1st Defendant on the basis of the allegations contained in the 1st Defendant’s letter dated 22nd December, 2008 without the 1st Defendant affording the Plaintiff an opportunity of being heard in respect of the said allegations, is contrary to the Plaintiff’s right to a fair hearing as guaranteed by section 36  of the 1999 Constitution, Article 7 of the African Charter on Human and People’s Rights [Ratification and Enforcement ] Act Cap A9 Laws of the Federation 2004 and the rules of natural justice and consequently it is unconstitutional null and void.
• AN ORDER setting aside the dismissal of the Plaintiff from the Nigeria Police Force by the 1st Defendant as contained in the 1st Defendant’s letter dated 22nd December, 2008.
• A PERPETUAL INJUNCTION restraining the Defendants whether by themselves their servants, agents and or representatives from treating or continuing to treat the Plaintiff’s service in the Nigeria Police Force as at an end pursuant to the 1st Defendant’s letter dated 22nd December, 2008.
Citing Sections 36, and 153 [m], paragraph 30 [b] of the 3rd schedule of the 1999 Constitution, Article 7 of the African Charter on Human and People’s Rights [Ratification and Enforcement] Act CapA9 Laws of the Federation 2004 and the rules of natural justice, Ribadu said, he is entitled to be heard before PSC took its decision to dismiss him.