POLICE SERVICE COMMISSION OR BOTH? : The Proper Party to Join and Hold Vicariously Liable in Fundamental Rights Suits

NIGERIA POLICE FORCE OR POLICE SERVICE COMMISSION OR BOTH? : The Proper Party to Join and Hold Vicariously Liable in Fundamental Rights Suits 

By ~ Meti M. Ukpeh, Esq. 

        [Ama-Mme Anana-Owo] 

INTRODUCTION:

I will not bore readers with what constitutes fundamental rights suits, as these are elementary knowledge to lawyers. Most times, these fundamental rights matters have the Nigeria Police Force, Police Service Commission or both joined by an aggrieved applicant. Note: Police, in the usual context, include other security agencies. See: S.492 of Interpretative Section of Administration of Criminal Justice Law of Akwa Ibom State, 2022. However, this work will use the word "Police" in the restrictive and literal sense of Nigeria Police Force. 

Before now, it has been a rigid practice that since the Police Service Commission (hereinafter referred to as "Commission") is the employer of police officers in Nigeria, the commission ought to be sued, joined and/or vicariously held liable in fundamental rights actions, but the queries that quickly come to mind are:

a) What is the dichotomy between the Nigeria Police Force and the Police Service Commission? 

b)  Can the Commission be sued/joined or held to be vicariously liable for infractions of the police officers in the course of carrying out its legal obligations? 

It is a truism that to unravel this puzzle and answer both queries above, an intellectual voyage to the extant laws, is highly instructive; hence, the duties of the police are vividly engraved in Sections 4 and 5 of the Police Act, 2020, as follows:

 

S.4 "The Police Force shall: (a) "Prevent and detect crimes, and protect the rights and freedom of every person in Nigeria as provided in the Constitution, the African Charter on Human and Peoples Rights and any other law; (b) Maintain public safety, law and order; (c) Protect the lives and properties of all persons in Nigeria. (d) Enforce all laws and regulations without any prejudice to the enabling Acts of other security agencies; (e) Discharge such duties within and outside Nigeria as may be required of it under this Act or any other law; (f) Collaborate with other agencies to take any necessary action and provide the required assistance or support to persons in distress, including victims of road accidents, fire disasters, earthquakes and floods; (g) Facilitate the free passage and movement on highways, roads and streets open to the public; and (h) Adopt community partnership in the discharge of its responsibilities under this Act or under any other law; and (i) To vet and approve the registration of private Detective Schools and private Investigative outfits. 

S.5.(1): The Police Force is responsible for promoting and protecting the fundamental rights of persons in police custody as guaranteed by the Constitution. (2) For the purpose of Subsection (1) of this Section, the Police Force shall collaborate with and maintain close working relationship with any Government agency or relevant private initiatives in the establishment of schemes or mechanisms offering legal service to accused persons, detainees or accused persons in police custody in need of legal services to ensure that they have full access to justice as laid down under the relevant provisions of Chapter IV of the Constitution. (3) In addition to the provisions of Subsections (1) and (2) of this Section, the Police Force is also charged with the responsibility for promoting and protecting the fundamental rights of all persons as guaranteed under the African Chapter on Human and Peoples' Rights (Ratification and Enforcement) Act and other international legal instruments on Human Rights to which Nigeria is a signatory."

Conversely, the powers and functions of the Commission are well stated in Sections 6 and 7 of the Police Service Commission (Establishment) Act, 2001 as follows: 

S.6(1): "The commission shall - (a) Be responsible for the appointment and promotion of persons to offices (other than the office of the Inspector-General of Police) in the Nigeria Police Force; (b) Dismiss and exercise disciplinary control over Persons (other than the Inspector-General of Police) in the Nigeria Police Force; (c) Formulate polices and guidelines for the appointment, promotion, discipline and dismissal of officers of the Nigeria Police Force; (d) Identify factors inhibiting or undermining discipline in the Nigeria Police Force; (e) Formulate and implement policies aimed at the efficiency and discipline to the Nigeria Police Force; (f) Perform such other functions which in the opinion of the Commission are required to ensure the optimal efficiency of the Nigeria Police Force; and (g) Carry out such other functions as the President may, from time to time, direct. (2) The Commission shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions other than as it is prescribed in this Act.

S.7: "The Commission shall have power to- (a) pay the staff of the Commission such remuneration and allowances as are payable to persons of equivalent grades in the Civil Service of the Federation; (b) enter into such contracts as may be necessary or expedient for the discharge of its functions and ensure the efficient performance of the functions of the Commission; and (c) do such other things as are necessary and expedient for the efficient performance of the functions of the Commission." 

It could be distilled from the above provisions of the Police Act and Police Service Commission (Establishment) Act that, the primary function of the Nigeria Police Force is prevention and detection of crimes, protection of the rights of every person in Nigeria and maintenance of law and order. The primary function of the Nigeria Police Service Commission is to appoint, promote and discipline police officers (other than the Inspector-General of Police). Though the Nigeria Police Service Commission is responsible for the appointment, promotion and discipline of all police officers (other than the Inspector-General of Police) in Nigeria, the Commission cannot be vicariously liable for an infraction committed by a police officer in the performance of his statutory and constitutional duties. 

I make bold to submit that, the appellate court has nailed this issue on the head. In IGP & ORS v. UMOLO & ANOR (2022) LPELR-57715(CA), the Court of Appeal held: "There is a clear distinction between the Nigeria Police Force as an entity and its functionaries. Where the intention is to hold the Nigeria Police Force vicariously responsible for the actions of its operatives, it is non-negotiable that the Nigeria Police Force must be made a party to the action... the Nigeria Police Force is different and distinct from the Police Service Commission. Their powers and functions are separate and distinct...the plank upon which the principle of vicarious liability is built is the existence of a relationship of master and servant. See IFEANYI CHUKWU (OSONDU) CO. LTD V. SOLEH BONEH (NIG) LTD (2000) LPELR-1432(SC) AT 12-13 (G-D) Where the Supreme Court Per OGUNDARE, JSC stated the nature and basis of the doctrine of vicarious liability as follows: "The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act committed by his servant while acting in the course of his employment... His Lordship stated thus: "In summary, to succeed against a master the plaintiff must; 1. establish the liability of the wrongdoer, and prove 2. that the wrongdoer is a servant of the master and 3. that the wrongdoer acted in the course of his employment with the master. .."Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 18 - 29 Paras B - D)

It is worthy to note that, for a relationship of master and servant to exist and for a master to be vicariously liable for the action of a servant, the following conditions must be established: 1) the master's power of selection of his servant. 2) The payment of wages or other remuneration. 3) The master's right to control the method of the work. 4) The master's right of supervision or dismissal. See SHORT V. J & W HENDERSON LTD (1945) LI.L.REP 271. The above conditions must co-exist before a relationship of master and servant can be said to exist. Where these are absent, then the case of vicarious liability hangs pitifully on a balance. 

It is gainful to note that salaries, allowances, expenses and other benefits of the members of the Nigeria Police Force are paid by the Nigeria Police Force and the commission has no power over the command and operational control of the police. See Sections 26 and 27 of Police (Establishment) Act, 2020, under the caption "Funding of the Police Force", provide thus:

 Section 26(1): "There is established and maintained for the Police Force a fund (in this Act referred to as "the General Fund") into which shall be paid - (a) Budgetary allocations for capital and recurrent expenditure, for members of the Police Force and Traffic Warden Service established under this Act and the other staff of the Police Force; as may be appropriated by an Act of the National Assembly for the Police Force; (b) Such contributions as may be made available to the Police Force for the purposes of this Act, by the State Governments and the Federal Capital Territory, Abuja. (C) Aid and assistance from international bilateral and multilateral organisations provided that the purpose for the aid or assistance does not conflict with the objectives of this Act; (d) All sums of money accruing to the Police Force by way of grants-in-aid, gifts, testamentary dispositions, endowments and contributions from any other source; (e) All money generated by the Police Force in the course of its operations, including: (i) Two-thirds of fees paid by members of the public in respect of extracts from police reports, (ii) Two-thirds of fees paid in accordance with Standing Orders for services of police officers who would otherwise be off duty, and (iii) Any other financial resource that may be vested in or accrue to the Police Force in the course of performing its functions under this Act or any other law. (f) Any other financial resource that may be vested in or accrue to the Police Force in the course of performing its functions under this Act or any other law. (1) A State Government or the Federal Capital Territory, as the case may be, shall: (a) Keep records of all contributions made; and (b) Specify the purpose for which a contribution is made, under Subsection (1)(b) of this Section. Expenditures by the Police Force.

S.27. (1): "The Police Force shall, from time to time, apply the money accruing in the General Fund to: (a) The cost of administration and operations of the Police Force; (b) The payment of salaries, allowances, expenses and other benefits of the members of the Police Force and the Warden Service established under this Act and the other staff of the Police Force; (c) The payment of pensions and other retirement benefits under any law; (d) Costs of acquisition and upkeep of premises belonging to the Police Force and any other capital expenditure of the Police Force; (e) All costs connected with or incidental to the operations of the Community Policing Committee Forums and Boards established under Part XIV of this Act; (f) The investments, maintenance of utilities, training, research and similar activities; and (g) Any other payment for anything incidental to the provisions of this section or any other function of the Police Force under this Act. (h) Any contribution made by a State Government or the Federal Capital Territory under Section 26 (1) (b) of this Act or any other contribution in respect of which a purpose was specified shall be used by the Police Force for the purpose specified. 

It is the firm submission of this writer in sync with the letters and intendment of the extant laws,  that though the commission is responsible for the appointment, promotion and discipline of police officers (other than the Inspector-General of Police) in the Nigeria Police Force, the Commission has no control over the police officers in the performance of their statutory and operational duties. Even if it can be argued that the Commission is the employer of policemen in Nigeria by virtue of its power of appointment, promotion and discipline of police officers, the commission cannot be sued or be vicariously liable for infractions committed by police officers in the course of performance of their statutory and constitutional duties.

May I humbly conclude that,  the duties of the police are imposed by statute and the Constitution and the Commission has no power to command and control police officers in their operational duties. That power constitutionally resides with the IGP. Therefore, the relationship between the Nigeria Police Service Commission is not that of master and servant. It would evidently be safer if, in the application of vicarious liability for the action of a police officer in fundamental rights actions, the emphasis is rather placed on who has the power of command and control of the police officers in the performance of their statutory and constitutional duties,  than who is the employer. Thus, it is gainfully instructive to sue/join the Nigeria Police Force and/Or the Inspector General of Police than the commission which this, is a journey in futility.