ORGAN & ORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2009)

Background

The appellants were recruited and trained as supernumerary police officers, commonly described as spy police, and posted to Nigeria Liquefied Natural Gas Limited (NLNG) to provide security services. They contended that NLNG had recruited them as members of its Fire and Safety Security Department, later known as the Corporate Security Service, and that they were therefore entitled to the benefits and accrued entitlements available to NLNG staff. Their case was based, among other things, on recruitment announcements, a passing-out ceremony at which they were allegedly welcomed as staff, personal record forms, identity cards describing them as staff, and a police wireless message.

After NLNG renewed their identity cards and removed the word “staff,” the appellants claimed that their employment status had been deliberately altered. They commenced proceedings before the High Court of Rivers State seeking declarations that they were NLNG employees, payment of accrued entitlements, injunctive relief against withholding those entitlements, and protection from intimidation or victimisation. The High Court dismissed the claims, holding that the appellants were supernumerary police officers and members of the Nigeria Police Force, not employees of NLNG. They appealed to the Court of Appeal.

Issues

1. Whether the trial court ought to have struck out portions of NLNG’s counter-affidavit and further counter-affidavit for non-compliance with sections 86, 88 and 89 of the Evidence Act.
2. Whether the trial court was correct in holding that the appellants were supernumerary police officers rather than employees of NLNG.
3. Whether, having found that the appellants were supernumerary police officers, the trial court was right to dismiss their claims for accrued entitlements and related reliefs.
4. Whether grounds of appeal and arguments concerning alleged contempt or disobedience arose from the judgment appealed against.

Ratio Decidendi

The Court of Appeal held that a ground of appeal must arise from, and challenge the reasoning or decision contained in, the judgment appealed against. A ground unrelated to the judgment is incompetent and liable to be struck out. The court also held that, under section 86 of the Evidence Act, affidavit evidence must consist of facts within the deponent’s personal knowledge or information believed to be true. Where the information comes from another person, the source and reasonable particulars must be disclosed under section 89.

On the employment question, the court applied sections 214, 215 and 216 of the 1999 Constitution and sections 2, 18, 19, 20, 21 and 22 of the Police Act. A supernumerary police officer is a police officer specially appointed under the statutory provisions governing the protection of property, administrative duties, orderly duties or other authorised public-interest functions. Such an officer remains a member of the Nigeria Police Force and is not automatically an employee of the private organisation using the officer’s services.

The court emphasised that the party asserting a fact bears the burden of proving it. Since the appellants sought a declaration that they were employees of NLNG, they had to establish the contract of service and its terms. Identity cards and regular payments could raise an inference, but they were not conclusive evidence of a contract of employment. In the absence of letters of appointment or other evidence establishing the terms, conditions and remuneration of employment, the appellants failed to prove that they were NLNG staff.

However, the court further held that NLNG could not rely on the appellants’ status as supernumerary police officers to avoid its statutory financial obligations. Under section 18(4) of the Police Act, the person who avails himself of the services of a supernumerary police officer must pay the prescribed sums, including the officer’s pay and applicable maintenance amounts, through the Accountant-General. The statutory obligation arose because NLNG had obtained and used the appellants’ services.

Court Findings

The first respondent’s brief was filed outside the applicable period under the Court of Appeal Rules 2002 and without an extension of time. It was therefore struck out. The appellants’ reply brief, being dependent upon the incompetent respondent’s brief, was also discountenanced. One ground of appeal relating to matters not decided by the High Court was struck out. Nevertheless, the appeal was considered on the basis of the appellants’ competent arguments.

The court partially upheld the appellants’ complaint concerning the counter-affidavit. Paragraphs 3 and 5 of the original counter-affidavit contained matters outside the deponent’s personal knowledge without adequately disclosing their source and ought to have been struck out. The further counter-affidavit, however, substantially complied with the Evidence Act because it identified the person who supplied the information and stated that the deponent believed it to be true.

On the central issue, the court affirmed the High Court’s conclusion that the appellants were supernumerary police officers and members of the Nigeria Police Force. Exhibit A showed that the recruitment was to be handled by the police authorities in accordance with statutory police recruitment procedure. The appellants’ own description of themselves as supernumerary police officers also supported that conclusion. The court rejected the argument that NLNG’s failure to produce every document evidencing the police appointment displaced the presumption of regularity attaching to official acts.

Nonetheless, the High Court erred by dismissing the claims for payment altogether. The appellants were not entitled to NLNG’s general staff benefits merely because they worked at NLNG’s facilities, but they were entitled to the statutory payments applicable to supernumerary police officers under section 18(4) of the Police Act. The Court of Appeal also recognised that a consequential order may be made to give effect to an established right, even where the precise consequential relief was not separately framed.

Conclusion

The appeal was allowed in part. The High Court judgment dismissing reliefs 2–6 was set aside, and those reliefs were granted insofar as they were founded on the statutory obligations under section 18(4) of the Police Act. The declaration that the appellants were employees of NLNG, and therefore entitled to all ordinary NLNG staff benefits, was not established. Costs of N30,000 were awarded in favour of the appellants against NLNG.

Significance

The decision clarifies the legal distinction between an employee of a private company and a supernumerary police officer deployed to protect that company’s property. It confirms that documentary indications such as identity cards, staff labels or workplace integration do not replace proof of a contract of service and its terms. At the same time, the judgment prevents a company that has requested and benefited from statutory police services from escaping the financial responsibilities imposed by the Police Act. It also restates important principles concerning appellate procedure, affidavit evidence, statutory interpretation, burden of proof and consequential relief.