The Black’s Law Dictionary 6th Edition at page 1566 defines vicarious liability thus:
“The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example the liability of an employer for the acts of an employee or, a principal for torts and contracts of an agent”.
In the case of Fawehinmi V Inspector-General of Police (2002) 7NWLR Pt 767, 600, the Supreme Court per Uwaifo JSC quipped:
….. Section 214(1) of the 1999 Constitution recognised one Police Force for Nigeria and the said police are given a duty under Section 4 of the Police Act….. to prevent and detect crime, apprehend offenders, preserve Law and order, protect life and property and enforce all laws and regulations with which they are directly charged and that is an important Statutory duty which they owe to the generality of Nigerians and all other persons lawfully living within Nigeria”.
There has been a high rise of professional misconduct by some police personnel which has resulted in the call for the scrapping of some units of the Nigerian Police Force (NPF) especially the (Federal) Special Anti-Robbery Squad (SARS). Common offences committed by police officers include: “accidental discharge” (negligent misfire) resulting in either maiming or outright death; rape, harassment, brutality, assault, torture, illegal detention, illegal confiscation of citizens’ property, trespass etc. Most of these offences and misconducts are not authorised, justified or excused by law.
Some of the misconducts of police personnel constitute what is known as torts. A tort is a civil wrong involving a breach of a legal duty owed to persons generally. The breach of duty doesn’t need to be intentional or even border on negligence. All that is required to commit a tort is to behave in a manner that results in a breach of duty imposed by Law; and this duty is towards persons or their property. Therefore, a citizen who has been injured by the tortious act(s) of a police officer may seek redress in a court of law by way of civil action; and in such a situation the law prescribes compensation for the injured party in damages.
The question then is, will the NPF be vicariously liable where a police officer in the discharge of his official duty is in breach of a legal duty owed to a citizen(s)?
Vicarious liability is a Common Law doctrine and at Common Law, where a servant (employee) commits a tort while performing the business of his master (employer), the latter is normally liable; and the liability of the employer is regarded as being vicarious in nature. However, the Common Law did not extend the doctrine of vicarious liability to the relationship between the police and their employers because, under the Common Law, a police officer is not an employee or servant of anybody, although he is under the command and control of some authority. He exercises original authority and for that reason, the Law of Agency does not apply.
The position of the Common Law is contradictory because it shows that there is nothing wrong for the authority under which police officers carry out their duties to accept in one breath their good work and in another breath reject their bad acts in order to avoid vicarious liability. This would mean that the Common Law allows such overseeing authority(ies) to accept benefits and reject damages in respect of what police officers do in the execution of their official duties.
This anomaly was rectified by the British Parliament in 1964. Under Section 48 of the Police Act, 1964 police officers in each of the police formations in England and Wales had a Chief Constable as their “notional” master or employer and a police officer acted on behalf of the Chief Constable under whose control and direction he works. Consequently, the Chief Constable under this Law was vicariously liable (and a joint tortfeasor for all purposes) for the torts committed by police officers while in the execution of their official duties. This Act was repealed on the 22nd of August, 1996 by the enactment of the Police Act, 1996. Under the 1996 police reforms in UK, vicarious liability was still retained under the British Police Laws. Section 88 of the Police Act, 1996 provides that the Chief Officer is vicariously liable for the unlawful conduct of the police officers under his or her direction or control.
Unfortunately, similar provisions do not exist under Nigerian Law. The newly enacted police Act, 2020 which repealed the Police Act Cap P19 LFN 2004 is surprisingly silent on this important subject.
There is no doubt that the nature of police work is such that the police should derive their powers directly from the Law; but for functional purposes, police officers must act under some authority. It is impracticable for a police officer to give himself orders, act accordingly and report to no one simply because his authority to act originates directly from the Law. Despite the originality of their powers and duties under the Law, police officers do not appoint or engage themselves to perform their constitutional functions. They are employed to do their work by an authority recognised by Law and it is under this same authority that police officers function and operate.
Under Paragraph 30(a) of Part 1 of the Third Schedule to the 1999 Constitution (as amended), police officers (except for the office of the Inspector-General of Police) are appointed into the Nigerian Police Force by the Police Service Commission (hereinafter referred to as the Commission).
Section 215(1)(a) of the Constitution provides that the Inspector-General of Police (IGP) is appointed by the President on the advice of the Commission from among serving members of the NPF.
Section 215(2) of the Constitution provides that, the NPF is under the command of the IGP. It is further provided by this section that subject to the authority of the IGP, “any contingents of the NPF stationed in the state shall …. be under the command of the Commissioner of Police of that state”.
It would seem from the above constitutional provisions that, the Commission is the employer of all police officers in Nigeria including the IGP – the IGP prior to his appointment by the President was also employed by the Commission just like every other police officer in Nigeria.
Applying the Common Law principle of master/servant, the Commission as the master of the NPF personnel ought to be responsible for police misconducts but in order to ascertain whether the Commission is vicariously liable for the professional misconduct of NPF personnel on official duty, all the elements that constitute vicarious liability must be available.
In the English case of Short V J & W Henderson Ltd (1945) 79 LI. L. Rep 271 the court held that, “there are four indicia of a contract of service namely:
- The master’s power of selection of his servant.
- The payment of wages or other remuneration.
- The master’s right to control the method of the work and
- The master’s right of supervision or dismissal…..”
All the above indices must be cumulatively present before the relationship of master and servant can be said to exist. Otherwise, the issue of vicarious liability cannot arise.
Two elements of vicarious liability as formulated in the case above are clearly missing from the functions of the Commission. These are:
- Control over the employee.
- Payment of wages.
The operational control of the NPF resides in the IGP (Section 7(1) of the Police Act, 2020), while the remuneration and wages of police personnel is domiciled with the Federal Ministry of Interior.
This would mean that, since all the elements or indices to establish a master/servant relationship are not cumulatively present, the Commission is therefore not vicariously liable for the professional misconduct of police officers.
The IGP, Mohammed Adamu, while on an official visit to the Police College Lagos in April 2019, decried the spate of exta-judicial killings by police officers in Lagos State. During that visit he stated thus:
“It is with a deep sense of professional concern that I visit you here in Lagos State Command to address you on the state of affairs for the past few months. This visit has become expedient in view of the recent threat of unprofessional conduct of some police officers. Our visit is to reinforce the extant Force Accountability Policy which holds any officer criminally liable for the consequences of their actions, particularly if such misuse of power resulted in death, injury or indignity of citizens. The line supervisors of such officers including the Area Commander, Divisional Police Officer shall be held vicariously liable (emphasis mine) for lacking supervision and shall be similarly sanctioned”.
The above statement of the IGP is in line with modern legal reasoning on the subject matter and it has answered the important question of the NPF’s vicarious liability for the excesses of its officers while executing or discharging their official duties. Thus, senior officers who exercise supervisory roles or duties over police officers would henceforth be held vicariously liable for the professional misconduct of officers under their direct supervision. This is how it ought to be; police officers who become tortfeasors in the course of duty should not be left alone to take the blame for the NPF; or be ditched by his employers when it comes to the crunch.
This was the view of the court several years ago in the case of Oyakhire V Obaseki (1986) 1 NWLR Pt 19 735 where the trial judge said: “It will be an indictment on the sense of responsibility of the Nigerian Police Force and indeed the Government if they do not give such assistance where a junior police officer whom they have issued a gun or rifle, use it to kill or injure an innocent person”.
On appeal, the above view was supported by Macaulay JCA as he stated thus:
…..it is manifestly unfair, if not unjust, to expect even a Commissioner of Police within the limits of his powers to be required to run with the hare and hunt with the hounds in the cause of law and order and when under pressure to disavow his responsibility for no other reason than that of self-preservation, to scout around for a scapegoat and in the process leave a junior officer he armed into a crossfire …. this is hardly the way to show leadership or inspire confidence and loyalty in the body politic of civilians or in the rank and file.
It should be noted that, the NPF has an internal mechanism for the discipline of its errant officers. Police officers who commit torts or other wrongs in the execution of duty are subjected to the internal discipline of the NPF and an officer may be dismissed from service for professional misconduct or negligent performance of duty. It, therefore, amounts to double jeopardy to leave such a dismissed officer to face civil litigation alone for the tort he committed in the execution of his duty. It is unfair for his employers to subject him to such double jeopardy, and it is against common sense because the Law does not expect him to pay a consequential judgement debt from the meagre salary he earned while in service. This is why I would suggest that vicarious liability should apply to the contract of employment of police officers in Nigeria as it applies to other contracts of service.