FRSC & ORS v. AKPOS (2021)

FRSC & ORS v. AKPOS

(2021)LCN/15014(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/A/612/2016

RATIO

JURISDICTION: WHAT DETERMINES JURISDICTION OF A COURT

It is settled law that jurisdiction of a Court is determined by the Plaintiff’s claim as endorsed in the Writ of Summons and Statement of Claim. See TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD V. GARBA (2002) 14 NWLR (PT. 788) 538 AT 563. PER YARGATA BYENCHIT NIMPAR, J.C.A.

COURT: JURISDICTION OF THE FEDERAL HIGH COURT

Undoubtedly, Section 251(1) of the Constitution prescribed the jurisdiction of the Federal High Court and same has been reiterated in a plethora of decisions, one of such is the case of ONUORAH V KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) LPELR-2707(SC) where the apex Court explained the jurisdiction of the Federal High Court vis a vis the subject matter listed in Section 230 of the 1979 Constitution which is in pari materia with the present Section 251(1) of the 1999 Constitution thus:
“Section 230(1)(q), (r) and (s) of Decree No. 107 of 1993 which extended the jurisdiction of the Federal High Court also sets out a proviso after Subsection(s). It is that: “nothing in the provisions of paragraphs (q), (r), and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.” A close examination of the additional jurisdiction conferred on the Federal High Court in the Section and by the 1979 Constitution clearly shows that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore, still be within the jurisdiction of the State High Court.”
The import of the said decision was reiterated by the apex Court in the case OLORUNTOBA-OJU & ORS V. DOPAMU & ORS (2008) LPELR-2595 (SC).
The essence of above decision is that what is not strictly provided for in Section 251(1) of the Constitution as exclusive jurisdiction of the Federal High Court means it can be heard by the regular High Courts. Furthermore, there is also the claim against the breach of a statutory duty of the Appellants. The mere fact that the 1st Appellant is a Federal Government Agency without more cannot confer jurisdiction on the Federal High Court. The claim before the Court also is a factor, the subject matter must also fall under the jurisdiction of the Court. See RAHMAN BROTHERS LTD V NPA (2019) LPELR-46415(SC) which the apex Court held:
“…There is no doubt that respondent/cross appellant is a Federal Government Agency but it is the contention of learned senior counsel for respondent/cross appellant that the status of the said respondent/cross appellant as a Federal Government Agency, without more, does not confer the requisite jurisdiction on the Federal High Court to hear and determine the action as constituted particularly as the cause of action before the trial Court is grounded on negligence and landlord and tenant relationship. There is no allegation of breach of statutory duty placed on the respondent/cross appellant by the respondent in the Statement of Claim neither was any issue joined thereon. The substance of the ground challenging the jurisdiction of the trial Court in this matter is subject-matter jurisdiction i.e whether the Federal High Court has jurisdiction to hear and determine an action based simply on negligence on the part of a landlord to prevent a fire from spreading to and destroying the properties/goods of the tenant in possession…Once again I have to repeat that though the respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court exercise its jurisdiction unhindered. The jurisdiction of the Federal High Court is therefore exercisable over the parties and subject matter of the suit. See: 1) DG. S.S.S. v. Ojukwu (2006) 13 NWLR (Pt. 998) 575 at 586 – 587, Paras. G-C. 2) NEPA v. Edegbero (2002) 12 SC (Pt.11) 119 @133 Per Tobi, J.S.C. 3) Mudiaga Erhueh v. INEC (2003) 5 NWLR (Pt. 812) 70 at 76. 4) Onuorah v. Kaduna Refining Company Limited (2005) 6 NWLR (Pt. 821) 393 at 405. 5) National Union of Electricity Employees Association v. Bureau of Public Enterprises (2010) 2 – 3 SC 27 at 67.
Per ONNOGHEN, J.S.C. ( Pp. 7-15, paras. F-D). PER YARGATA BYENCHIT NIMPAR, J.C.A.

JURISDICTION: WHETHER CLAIMS IN TORT CAN BE BROUGHT IN THE FEDERAL HIGH COURT

Detinue is a tort and the principal or main claim of this suit, so the Federal High Court has no jurisdiction on tort generally which is under equity. Remedy for tort actions is not provided by law and the Federal High Court even where additional jurisdiction has been bestowed on it, is so done by law and not in equity. The source of such additional jurisdiction must be in the Constitution or legislation and not at large. Furthermore, the proviso to Section 251(1) of the Constitution says:
“Provided that nothing in the provision of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

In the light of above, the relief before the trial Court being damages for breaches in tort can conveniently be heard by the trial High Court. The argument of the Appellants cannot stand. In the case of OKON V THE AKWA IBOM SECTOR COMMANDER, FEDERAL ROAD SAFETY COMMISSION UYO & ANOR (2017) LPELR- 43648 (CA) where the Court had this to say:
“It is trite, that the Federal High Court is a creation of the Constitution of the Federal Republic of Nigeria, 1999, as amended [See Section 249]. Invariably, the jurisdiction of the Federal High Court is circumscribed and limited by the far-reaching provisions of Section 251 of the said Constitution, as amended by Section 27 of the Constitution of the Federal Republic of Nigeria [First Alteration] Act, 2010. It should be reiterated, for the avoidance of any lingering doubt, that the jurisdiction of the Federal High Court is limited to the extent of the matters arising from any of the enumerated provisions under Section 251 of the 1999 Constitution (supra). See ADETONA VS. IGELE GENERAL ENT. LTD. (2011) All FWLR (pt. 569) 1025 @ 1052 paragraphs E – D; OSUNDE VS. BABA (2015) All FWLR (pt. 781) 1482 @ 1502 paragraphs F – G and 1502 paragraphs F – G. PER YARGATA BYENCHIT NIMPAR, J.C.A.

REGULATIONS: NATURE OF REGULATIONS

There is no doubt that the Regulations are subsidiary laws which has to be obeyed. It was duly made and there is no issue as to its legitimacy. PER YARGATA BYENCHIT NIMPAR, J.C.A.

TORT: MEANING AND NATURE OF DETINUE

Detinue was defined in the case of AMINU ISHOLA INVESTMENT LTD V AFRI BANK NIG PLC (2013) LPLER-20624(SC) as follows:
“What is the nature of an action in detinue in KOSILE V. FOLARIN (1989) NWLR (PART 107) 1; (1989) 4 S.C. Pt. 150, the Supreme Court Per Nnaemeka Agu, J.S.C. held as follows: “It must be clearly stated that in an action for detinue the gist of the action is the unlawful diversion of the Plaintiff’s chattel which he has an immediate right to possess after the Plaintiff has demanded its return.” See also SHONEKAN V. SMITH (1964) 1 ALL NLR 168 at p. 173; AKPENE V. BARCLAYS BANK NIG. LTD. & ANOR. (1977) 1 SC 47; KATE ENT. LTD V. DAEWOO NIG. LTD (1985) 2 NWLR (PART 5) 116; ADEGBAIYE V. LOYINMI (1986) 5 NWLR (PART 43) 665. In CHIGBU V. TONIMAS NIG. LTD (2006) NWLR (PART 984) 189, the word “chattel” is used interchangeably with the word “goods” with respect to the ingredients of the tort of detinue. This definition would appear to be in consonance with that in Halsbury’s Laws of England (Third Edition) Vol. 38 page 775 paragraph 1285 as was seen earlier.” Per ALAGOA ,J.S.C.

What must be established to succeed in a claim of/for detinue is as follows:
“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.”

Before a Claimant can initiate an action in detinue, two basic things must have occurred and they were listed in CHIGBU V TONIMAS NIG LTD (2006) LPLER-846(SC) thus:
“Before an action on detinue can be filed, two acts must be present; one from the plaintiff and the other from the defendant. The plaintiff must make a formal demand for the return of the goods or chattel. The defendant must refuse to return the goods or chattel. And so an action in detinue cannot be founded only on the demand by the plaintiff without a corresponding refusal.” Per TOBI, J.S.C.

Remedies available to a Claimant who succeeds in his case rooted in detinue is entitled to an order of specific restitution of the chattel which is adjudged to have been unlawfully detained or in default of that, its value and also damages for its detention up to the date of judgment. See OLUWA GLASS CO. LTD. V. EHINLANWO (1990) 7 NWLR (PT. 160) 14 AND ORDIA V. PIEDMONT (NIG.) LTD. (1995) 2 NWLR (PT. 379) 516. PER YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. FEDERAL ROAD SAFETY COMMISSION 2. MR. KAYODE FANOLU 3. OKORO OKORONKWO AJA 4. OKANYA BARRISTER RAPHAEL APPELANT(S)

And

BARR. OSUOBENI EKOI AKPOS RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of HON. JUSTICE JUDE O. OKEKE delivered on the 9th day of November, 2015 at the Federal Capital Territory High Court, sitting in Abuja wherein the trial Court found the Appellant liable in detinue. Dissatisfied with the said decision, the Appellant filed an Amended Notice of Appeal on the 12th of March, 2019 but deemed on the 11/11/2020 setting out 5 grounds of Appeal.

Facts leading to this appeal are amenable to brief summary. I shall do so shortly. The Respondent commenced this action via a Writ of Summons dated 21st day of March, 2013 and also filed an amended statement of claim on the 15th day of November, 2013. The Respondent claimed against the Appellants as follows:
1. A Declaration that the continuous seizure of the Respondent’s Honda Rover car at the office of the Federal Road Safety Corps, Utako sector by the Appellants from 1st June, 2012 till date amounts to detinue in law.
2. An Order of Court commanding the Appellants to release the Honda Rover car (Registration No. FS704ABC) detained at the office of the Federal Road

Safety Corps, Utako Sector Command, unconditionally to the Respondent.
3. The sum of Fifty Million Naira only (N50, 000, 000.00) as general damages for detinue.
4. The sum of Two Million Naira Only (N2,000,000.00) as cost of litigation.

In response to the claim, the Defendant filed an Amended Statement of Defence with Counterclaim along with a Witness Statement on Oath on 10th day of June, 2014. The Respondent’s case against the Appellants is briefly stated as follows: the Respondent was accosted by the members of the 1st Appellant while he was in transit on the 1st of June, 2012. The Respondent avers that the Road Safety officers after demanding for his vehicle papers alleged that his passenger was not wearing a seat belt and proceeded to assault him when he introduced himself as a lawyer. The trial Court found against the Appellants and granted the relief sought by the Respondent (See Judgment at pages 273-294). The Appellants was dissatisfied with the decision thus this appeal.

The Appellant’s brief settled by MAZI AFAM OSIGWE ESQ., dated 12th March, 2019 and filed on the same date but deemed on 11th November, 2020 and it

formulated five issues for determination as follows:
a. Does the High Court of the Federal Capital Territory have jurisdiction to entertain relating to the impoundment and detention of his car by Appellants as the act of impounding of his vehicle is an administrative act of the 1st Appellant, which us an agency of the Federal Government of Nigeria?
b. Was the trial Court right in holding that there was no basis for the issuance of Notice of Offence sheet on the Respondent notwithstanding that Regulation 58(4) of National Road Traffic Regulation, 2004 made pursuant to Section 5(1) of Federal Road Safety Commission (Establishment) Act, 2007 placed the duty on the driver of a vehicle to ensure that all passengers in the vehicle have their seat-belts firmly fitted while the vehicle is in motion?
c. Assuming without conceding the trial Court had jurisdiction to entertain the suit, was the trial Court right in granting the damages of N5 Million as damages for tort of detinue against the Appellants.
d. From the evidence placed before the trial Court by the Respondent, was the trial Court right in awarding the sum of N1 Million for assault and

battery (“merciless beating”) of the Respondent.
e. Was the trial Court right in dismissing the Counterclaim of the Appellants without recourse to the evidence before it.

The Respondent’s Brief was settled by FESTUS AKPOGHALINO, ESQ., dated 9th October, 2019 and filed same day but deemed on the 11th November, 2020. He formulated four issues for determination as follows:
a. Whether the High Court of the Federal Capital Territory, Abuja has jurisdiction to hear any complaint in Torts, of Battery, Assault and Detinue, relating to an agency of the Federal Government. (Distilled from Ground 1).
b. Whether in the circumstance of this case, the learned trial Court was right, when he held that the Respondent is entitled to damages for dentine. (Distilled from Grounds 3).
c. Whether the Respondent is entitled to the relief for assault and Battery in Tort. (Distilled from Ground 2, 3 and 5).
d. Whether the Appellants have proved their entitlement relief to the Counterclaim in law. (Distilled from Ground 4)

Thereafter the Appellants filed a Reply brief dated 12th March, 2019 and filed on the same day and deemed on

11th November, 2020. The Appellants formulated two issues for determination as follows:
1. Can Respondent in arguing issue 1 in his Respondent’s Brief of Argument raise issues whether the impounding of his vehicle on reasonable suspicion it had been used to commit an offence does not constitute Appellants into accusers, prosecutors and judge and that prosecution under Section 10(7) FRSC Act is sine qua non before the impounding of his vehicle as anything short of this will amount to punishment before trial, when the issues did not emanate from the decision of the trial Court or Appellant’s Notice of Appeal.
2. Was 1st Appellant right to continue to impound Respondent’s car after his acquittal for assaulting its officer.

APPELLANTS’ SUBMISSION
ISSUE ONE
The Appellant argued that the High Court of the Federal Capital Territory lacks jurisdiction to entertain the Respondent’s claim relating to the impounding and detention of his car by Appellants as the act of impounding of his vehicle is an administrative act of the 1st Appellant being an agency of the Federal Government of Nigeria, any action challenging its

administrative act can only be instituted in Federal High Court as stated in Section 251 (1)(r) of 1999 Constitution as amended. The above provision gives the Federal High Court exclusive jurisdiction to entertain any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and nothing in this provision that suggest that the 1st Appellant can be sued in any High Court of the State. The Respondent’s pleadings contain at pages 156-164 of the Record vis-à-vis S.251(1) (p), (q) and (r) of the Constitution upon which the challenge to jurisdiction is based, makes it abundantly clear this action falls within the purview of exclusive jurisdiction of the Federal High Court. The Appellant reproduced one of the reliefs of the Respondent and cited the case of A.G. FEDERATION V. ABACHA (2010) LPELR 8997 (CA) to state that the impounding and detention of Respondent’s car by the 1st Appellant is an administrative act. Therefore, there is no legal or factual basis for instituting the action in the High Court of FCT as it lacks jurisdiction

to entertain and determine the suit. The Respondent submits that the Constitution intended to confer exclusive jurisdiction on the Federal High Court over all executive or administrative actions or decisions of the Federal Government agencies, except with respect to enforcement of human rights in which case the Federal High Court and State High Court have concurrent jurisdiction. In interpreting statute, the Court must presume that a legislature says in a statute what it means and means in a statute what it says there as held in CONNECTICUT NAT’L BANK V. GERMAIN 112 S. CT 1146 AT 1149 (1992).

The Appellants argued also that the term “validity is an abstract noun and derivative of valid which is defined as binding, possessing legal force or strength, legally sufficient” as stated in WEST ENCYCLOPAEDIA OF AMERICAN LAW, 2ND EDN, THE GALE GROUP INC. 2008, BLACK’S LAW DICTIONARY (8TH EDN) P. 1586 therefore, that an action or proceeding affecting the validity of any administrative action or decision of the Federal Government or any of its agencies’ in the context of S. 251(1) (r) of 1999 Constitution (as amended) must be one that

transcends mere irregularity or wrongfulness of the executive or administrative action or decision complained of. The Appellants submit that the trial Court lack jurisdiction as the essential legal validity or competence of an executive or administrative action of the 1st Appellant which an agency of the Federal Government is the primary focus of the proceedings. The Federal High Court has exclusive jurisdiction so as to divest the High Court of the FCT jurisdiction to entertain the matter.

The Appellants urges this Honourable Court to allow the contention of the Appellants that the High Court of FCT lack jurisdiction to entertain Respondent’s claim relating to the impoundment and detention of his car by the Appellants as the act of impounding of his vehicle is an administrative act which can only be adjudicated upon by the Federal High Court.

ISSUE TWO AND THREE
The Appellants reproduced the provision of Section 10(5)(g) of FRSC Act, Regulation 58(4) of the National Road Traffic Regulations, 2004 made pursuant to Section 5 of the Federal Road Safety Commission (Establishment) Act, 2007 to state that it is the responsibility of the

Respondent to ensure that his passenger in his car wear a seatbelt that is part of the reason his was booked. By Regulation 113(a) National Road Traffic regulations, 2004, it is clear that failure of the Respondent to ensure his passenger wore a seatbelt on the day in question, amounted to an offence. The Appellants states that the members of the Corps have powers to seize the driver’s licence, particular of the vehicle and impound and tow away a vehicle to the presence of the Corps where an offence is committed and notify the police of the matter for further investigation. Referred to the case of ESEKHAIGBE V. FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA). The Federal Road Safety Corp was established by an Act of the National Assembly and saddled with the responsibility of traffic management, preventing and minimizing accidents on the highways as stated in Section 4 and 10(5) A and H of the Federal Road Safety Commission, Act, 2007. The Appellants submits that the Respondent’s vehicle particulars which was tendered in evidence also showed the same had expired insurance and particulars which shows that there were other issues apart from the

issue of his passenger seatbelt as well as impounding his vehicle. The Appellants submits that the Act has empowered the Commission and its officers to impound vehicles of persons reasonably suspected of committing an offence. It is trite that were the words of a statute are clear, the Court should give effect to their literal meaning but where it would result in ambiguity or injustice the Court may seek internal aid to resolve the ambiguity or avoid doing injustice as stated in N.C.C V. MTN (NIG) COMM. LTD (2008) 7 NWLR (PT. 1086) 229 and ADEWUMI V. A-G EKITI STATE (2002) 2 NWLR (PT. 751) 474. The Appellants cites the case of DIN V. A.G.F (1988) 4 NWLR (1987) 147 and ISHOLA V. AJIBOYE (1994) 6 NWLR (352) 506 which defined subsidiary in regards to Traffic Regulations, 2004, cited Section 12 of Interpretation Act. That Regulation 58(4) of the National Road Traffic Regulations, 2004 state that failure by the Respondent to discharge the duty on him to ensure his passenger wore a seat-belt on the date in question amounted to an offence which made his vehicle liable to being impounded.

The Appellants argued that by breaching Regulation 58(4) National Road Traffic Regulations, 2004,

the Respondent committed an offence punishable under Regulation 114(1) National Road Traffic Regulations, 2004 thereby rendered the vehicle liable to impoundment as it was the vehicle. The Respondent had a statutory duty to ensure all his passengers firmly wore their seat-belt. The Appellants’ sole witness Okanya Barrister Raphael observed that the driving along the road in the company of a passenger that had not strapped on a seatbelt (See 52 of the Record of Appeal). In Exhibit N, the Respondent admitted the offence as committed by his passenger when he was asked during cross-examination (See page 142 of Record). It is conclusive proof of the Respondent’s liability in this regard. The Court has described admission as formal waiver of proof which relieves the opposing party from proving the admitted facts and bars the party who made the admission from disputing same. See IPCO (W.A.) HOLDING LTD & ANOR V. SEMBCORP ENG PTEL LTD CITATION (2011) LPELR-4332 (CA). The Appellants submits that the statements in corroboration with the evidence of DW1 at the trial Court ought to form conclusive proof of the fact that the Respondent

was in breach of Regulation 58(4) of National Road Traffic Regulations, 2004. Also, the Appellants states that the particulars with which the Respondent was driving has expired and the trial Court wrongly held that the Vehicle license Exhibit G was valid with a bold inscription of “Expires May 2012 to vehicle owner” can by any stretch of imagination be held to include the month of June. The position of the trial Court would have been right in the light of Section 124(1) cited in the judgment if the subject matter had to do with clearly state when it is to expire. The Courts are not allowed to make finding outside the pleadings and evidence parties or speculate on what is because the Court has no jurisdiction to speculate as held in IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (PT. 620) 552 @ 561; AGHOLOR V. ATTORNEY GENERAL, BENDEL STATE (1990) 6 NWLR (PT. 155) 141 and SEISMOGRAPH LTD V. OGBENI (1976) 4 SC 85. The Appellants urge the Court to discountenance the speculation and hold that Exhibit G has expired.

The Appellants also argued that the actions of the Appellants to impound the Respondent’s vehicle do not amount to the tortuous wrong of

detinue having established that the Appellants had reasonable basis to believe that the Respondent has contravened the traffic law. Detinue is the wrongful detention of the Respondent’s chattel by the Defendant after the Respondent’s has made a demand for its return without proof of wrongful detention on the part of wrongful unless the defendant’s possession is adverse. Cited the case of GUINNESS NIG. PLC V. BOSE STORES LTD (2007) ALL FWLR (PT. 393) 163 and ABAZIE V. NWACHUKWU & ANOR (2012) LPELR-7945(CA). Where a Respondent fails to establish his claim to ownership of the chattel detained wrongfully where the title to the goods in question was in dispute, in addition to establishing that there was a demand coupled with wrongful refusal by the defendant, the action must fail. Relied on SOMMER V. F.H.A. (1992) 1 NWLR (PT. 219) 548, OWENA BANK LTD V. OLATUNJI (2002) 12 NWLR (PT. 781) 259, GUINNESS (NIG) PLC V. NWOKE (2000) 15 NWLR (PT. 658) 135; W.A.O.S V. U.A.C (2000) 13 NWLR (PT. 683) 68. The Appellants submits that by incontrovertible evidence adduced the Respondent and DW1 admits breaching the regulations of the act which makes him

liable to wordings of the act in regard to impounding and arrest of his vehicle. The golden rule of interpretation is that where the provision of a law is very clear and unambiguous the words contained in them should be given their natural meaning. The Appellants cited BALOGUN V. N.C.S.B (2003) 2 NWLR (PT. 804) 389 and SECTION 6 OF THE FRSC ESTABLISHMENT ACT, 2007. Section 10 of the FRSC Establishment Act is founded entirety on public policy and by implication created strict liability offences. The act of issuing offence notice sheet to the Respondent and impounding his vehicle is both an official and judicial act as stated in the provision of Section 150(1) of Evidence Act, 2011 and the case of KALU V. STATE (1998) 13 NWLR (PT. 583) 531; AMALA V. THE STATE (2004) 12 NWLR (PT. 888) 520; PETER LOCKNAN & ORS V. THE STATE (1972) 5 SC 22. Apart from what is called presumption of regularity of official acts as embodied in the provisions of the Evidence Act, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the latin maxim “Omnia praesumutur rite ac

sollemniter esse ease acta” meaning – all things are presumed to have been rightly and regularly done. This particular presumption is very commonly resorted to and applied especially with respect to official acts as held in OGBUANYINYA V. OKUDO (1990) (NO. 2) 4 NWLR (PT. 146) 551 and INYANG V. EBONG (2001) 25 WRN 138.

The Appellants further argued that the award of 5 Million damages for detinue is insupportable as the Respondent ought to have taken steps to mitigate his loss and in fact waited for too long to secure the release of his car. The law imposes duty on the Respondent to take steps to avoid any losses which are avoidable. Persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss. The Appellant cites the case of ONWUKA V. OMOGUI (1992) 3 NWLR (PT. 230) 392; BRISTISH WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPNAY LTD V. UNDERGROUND ELECTRIC RAILWAYS COMPANY OF LONDON LTD (1912) A.C. 673. The award of the 5 Million by the trial Court was contrary to the decision in

NWANJI V. COASTAL SERVICES (NIG) LTD (2004) 10 MJ.S.C. 154 and ACME BUILDERS LTD V. K.S.W.B. (1999) 2 NWLR (PT. 590) 288. The Appellants submits that this aspect of the trial Court’s judgment lacked any support in the light of facts and evidence before her and same must fail and the Appellants urge the Court to hold so.

ISSUE FOUR
The Appellants argued that the evidence adduced by the Respondent in support of his claim of assault and battery is so manifestly inconsistent and wrong for the trial Court to award the sum of 1Million Naira on the basis of same, the claim of assault and battery must be proven beyond reasonable doubt as held in AGBONAVBARE V. OGBEBOR (2007) 8 NWLR (PT. 1037), the evidence given by the Respondent is filled with inconsistency which is unreliable and create doubt that no Court can safely rely on it in proof of Assault and battery. The Appellant reproduced the content of page 136 of the Record of proceedings to state the evidence tendered at the Magistrate Court which appears to be modified and the Respondent reproduced the testimony of PW2 (Garba A. Mohammed) at page 250 of Record and the testimony of the Court bailiff at the Magistrate Court found at

pages 143 of Record to show the inconsistency in both testimonies as the first said that they were two officer but later he stated that they were up to four officers of the Road safety Officers. The above varying narrations of the same incident show how inconsistent the evidence given by the Respondent and his witnesses were. It is trite law that where a witness has two or more inconsistent evidence given on oath by him on record, he is not entitled to the honour of credibility and does not deserve to be called truthful as held in EZEMBA V. IBENEME (2004) 14 NWLR (PT. 894) 617; AWANEN V. NTAOH (2011) LPELR-3928 (CA) and AGBI V. OGBE (2005) 6 NWLR (PT. 926) 40. Finally, the Appellant submits that the standard of proof imposed by law in grounding a claim of assault and battery has not been met by Respondent, cited AGBONAVBARE V. OGBEBOR (SUPRA). The Appellant urge the Court to hold that the evidence placed before the trial Court by the Respondent is inconsistent and wrong as well as not sufficient, cogent or compelling enough to award the sum of N1 Million for assault and battery against the Appellants.

ISSUE FIVE
The Appellants argued that the

trial Court erred in dismissing the Appellants’ counterclaim and thereby occasioned injustice to them as held in AMON V. BOBBETT (1889) 22 QBD 543 and GOWON V. IKE OKONGWU (2003) 6 NWLR (PT. 815) 35. The Appellants submits that the Respondent to the counterclaim did not show by way of evidence that he has paid the fines as required by law for his breach of the road traffic act, he has neither paid the statutory fines nor the demurrage for not redeeming his car for a period of 672 days. The Appellants led unchallenged and uncontroverted evidence to show that the car was duly impounded. It is also not in dispute that the Respondent to counter claim was duly issued with a notice of offence sheet as prescribed by the Federal Road Safety Commission Act (Supra), see page 67 of the Record of Appeal. The Appellants submits also that in paragraph 4 of the letter of the Respondent’s Counsel 03/07/2012 caption Pre-Action Notice, the Respondent also admitted that he was “booked”. The Respondent’s vehicle was impounded on the 1st of June, 2012 and released by the order of the trial Court on the 3rd of April, 2014. This spanned a period of 672

days. The Federal Road Safety Commission Act, 2007 in Section 10(6) provides that the driver or owner of a vehicle shall be liable to pay the sum of N200 for every day or part thereof during which the vehicle is detained which amounts to the sum of N134, 400.000 and there is no evidence of payment of the sum even before the trial Court ordered the release of the vehicle to the Respondent.

The Appellants reproduced the finding of the trial Court at page 287 of the Record of the Appeal and state that the trial Court was erroneous and that it was wrong to strike out the counterclaim of the Appellants. They also state that the lower Court only gave credence to the evidence of the Respondent alone, rather than on a proper evaluation by balancing the same on a scale against the evidence adduced by the Appellants. The Appellants urge the Court to resolve this issue in favour of the Appellants, to allow the appeal, to set aside the judgment of the lower Court and to dismiss the case of the Respondent.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent contends that in determining the jurisdiction of the trial Court, the Writ of summons,

statement of claim and reliefs sought that is considered by the Court as held in ANGADI V. PDP & ORS (2018) LPELR-44375(SC). The reliefs sought by the Respondent are purely based on the law of Tort of detinue, assault and battery (See pages 156-177 of records). The Respondent reproduced the reliefs sought which disclose two main reliefs; (1) Damages in tort of detinue and damages for assault and battery. According to the Respondent, the Appellants argued that they acted under the relevant law, however, there was no Section of the law authorizing the Appellants to seize or detain his Car for a period of two years, without any recourse to the Court of law. The vehicle was never part of the First Information Report (F.I.R.), when the Respondent was prosecuted by the Appellant at the Magistrate Court (See pages39-42 of the record). The trial Court ordered the release of the said vehicle but the Appellant held on to it, till the trial Court threatened contempt before the vehicle was released. Section 251 (1) of the Constitution did not derobe the High Court of jurisdiction over any complaint relating to tortuous liability. The Respondent submits that the

Appellant quoted Section 251(1) (r) but omitted Subsection (s) of the Constitution because their argument that the High Court has no jurisdiction to hear this complaint has no legal basis. Section 251(1) of the Constitution has some qualification and exceptions. The Courts in interpreting this proviso authorized the High Courts to entertain any action that is not specifically mentioned in that long list of items specifically mentioned in Section 251 of the Constitution under the principle of Expressio unius est exclus alterius rule. Cited the case of SUN INSURANCE (NIG) PLC V. UMEZ ENGINEERING CONSTRUCTION CO. LTD (2015) LPELR-24737 (SC); IKPEKPE V. WARRI REFINERY AND PETROCHEMICAL CO. LTD (2018) LPLER-44471 (SC) and NATIONAL BANK & ANOR V. SHOYOYE & ANOR (1977) LPELR-1948 (SC). The Respondent submits that jurisdiction of a Court is determined by the nature of the case or subject matter as presented by the Claimant and the reliefs sought and not the reply or defence of the Appellants. The Respondent cites A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT.111) 522 (SC); RAHMAN BROTHERS LTD V. NPA (2019) LPELR-46415; UGBOMA V. OSHIPITAN (2018) LPELR-45854

(CA); FEDERAL STAFF HOSPITAL JABI & ANOR V. OHANAKA & ANOR (2018) LPELR-45830 (CA). From the authorities above, the Appellants’ argument that the High Court has no jurisdiction to hear the complaint of the Respondent, which relates to Torts of Detinue, Assault and Battery is legally untenable as the Appellant argument is not supported by laws or judicial authorities, therefore this appeal is frivolous and unmeritorious.

ISSUE TWO
The Respondent argued that his main complaint at the trial Court was that his vehicle was arbitrary detained, having not been found in breach of any law and the Appellants position was that they are empowered by law to detain any vehicle to which an offence has been alleged or imputed. The Respondent reproduced the holding of the trial Court at pages 286 and 292 of record. The Respondent submits that the Appellants argued that they cannot be liable in detinue, since they are empowered by to so do. What is detinue? The Respondent relied on JULIUS BERGER NIG. PLC V. OMOGUI (2001) 6 SC 185. The Respondent narrates that his car was detained by the Appellants for long period, the Respondent made a demand of the

release of his car via letters and correspondences and these facts were not denied in his case, the Appellants’ contention is that they have the legal right to detain same, relying on the Act establishing the 1st Appellant (see pages 165-169 of records). The right to detain or impound a car must be anchored on a breach of a law and not to be exercised arbitrarily. The question is, which law has the Respondent breached in this case? And which authority adjudged him guilty, the answer is none. There was no evidence on record that the Respondent was convicted of any alleged traffic offence. The Respondent states that the Appellant relied on Section 10(5) (h) of the FRSC Act as the law under which the Respondent car was seized, however, a close look at that Section of law did not imbue the Appellants with arbitrary powers to impound the vehicle of the Respondent or any vehicle at all. The Appellant ought to charge the Respondent to a Court of law to decide the guilt of the suspected driver. It will be unconstitutional for anyone to be punished on a mere suspicion of having committed an offence. The Respondent cited Section 10(7) and (8) of FRSC Act and

ANSA & ORS V. THE OWNER/MANAGING DIRECTOR RVL MOTORS (2008) LPELR-8570 (CA); FRN V. DARIYE (2011) LPELR-4151 (CA). The Respondent reproduced the condition stipulated in Section 10(5) (h) of the FRSC Act and that the person to determine the culpability or the guilt of the suspect cannot be the Appellants who were the Complainant, this will infringe on the right to fair hearing and the principle of natural justice as held in IKOMI V. STATE (1986) 3 NWLR (PT. 28) 340 and CHUKWUMA V. F.R.N (2011) LPELR – 863 (SC). The Respondent submits that the Appellants’ allegation of a seat belt offence levied against the passenger but the Appellants never tendered any evidence to prove this allegation. The Appellants merely seized the car for 2 years based on their whims and not on the dictates of Section 10 of the FRSC ACT under which they purported to act. The Respondent was not charged or tried for the offences of alleged in the booking sheet (see p. 58 and 59 of the records). The use of the word MAY in Section 10(7) of FRSC Act should not be mistaken for permission to impunity but was carefully used to suggest that other special Courts like the Mobile Court can also

determine the liability of the offender. The Respondent rely on Section 26 of the FRSC, which emphasized that liability must be after conviction and not before. See also 27 and 28 of the FRSC Act which specifically refers to the Court as the appropriate person to determine the liability under the Act, as held in EDIRU V. F.R.S.C (2016) 4 NWLR (PT. 1502) 209.

The Respondent argued that the Appellants alleged at the trial Court that the Respondent was driving with expired license (though that was not the offence for which he was booked) as another reason for detaining the Respondent’s car, however, Section 23 of FRSC Act like other Sections of the Act envisaged the likely abuse of power so it subjected every penalty to “after conviction”, cites Section 10(11) of the FRSC Act. Assuming for the purpose of argument that the Appellant has unbridled power to detain or impound vehicles, it cannot detain it beyond 6 months prescribed under the FRSC Act in Section 10(6). Also, under Section 10(7) of the Act, the prosecution can only be for the determination of the culpability of the suspect for the alleged offence under the FRSC Act, anything

short of this will amount to punishment before trial, hence and unconstitutional, cited CHUKWUMA V. F.R.N (2011) LPELR 863(SC). The Appellants are fully aware this fact that is the reason the Respondent was charged under the Penal code and not under the Federal Road Safety Corps Act as seen in the judgment of the Magistrate Court at page 59 of the records. There is no evidence before this Honourable Court on record to support the claim of the Appellants that the detention of the Respondent’s car for 2 years was ever connected with the Road Traffic Offences alleged hence unreasonable. There was no evidence to buttress all the claims of the Appellants. A Court of law only relies on evidence tendered before it to decide an issue and not by mere claims or assertions, relied on OJOH V. KAMALU (2005) 18 NWLR (PT. 958) 523; AGBI V. OGBE (2005) 8 NWLR (PT. 926) 40. The Respondent submits that the Appellants merely took laws into their hands, when having not prosecuted the Respondent for any violation or offence under the Road Traffic Act, held on to the vehicle for a period of over 2 year even after repeated demands; a crass display of impunity, thereby

denying the Respondent; a legal Practitioner; the use of his property and the attendant hardship on the Respondent in performing his professional duties for a long period of that Arbitrary detention. Relies OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) 157. There cannot be any legal justification under any law for detaining or holding on to the Respondent’s property for 2 years and without an order of Court. The Respondent submits that the seizure was unjustified in law and Section 10(4)(e) of the FRSC ACT relied upon by the Appellants did not authorize transfer of criminal liability of the passenger to the Respondent as criminal liabilities are not transferrable as held in A.C.B. V. OKONKWO (1997) 1 NWLR (PT. 480) 194. It is trite that no one is permitted by law to read any meaning not intended by an Act into it, hence where the words of an Act are clear, the law enjoins the Court to apply the ordinary meaning of the words used in the statute as stated in ADETAYO & ORS V. ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) 169.

The Respondent further argued that he has established by adducing evidence that his car was detained, he made

demand for it release and there is no legal justification for detaining same, these are what the law enjoins him to prove, which he did with evidence hence the trial Court was right to have held the Appellants liable in detinue as held CHIGBU V. TONIMAS NIG. LTD (2006) NWLR (PT. 984). It is trite where the Court found that the other party is liable under the tort of detinue, the Court has power to order payment of general damages to compensate the Respondent for the losses, this is without prejudice to the return of the chattel where it is still in possession of the Appellants. He cited KOSILE V. FOLARIN (1989) NWLR (PT. 107) 1; OSHEVIRE V. TRIPOLI MOTORS (1997) 5 NWLR (PT. 503) 81; OLATUNJI V. OWENA BANK PLC (2008) 8 NWLR (PT. 1090) 668. The learned trial Court rightly awarded damages. General damages are implied by law in every breach of a duty in tort and are left for the Court to assess. The Respondent submits that the Appellants alleged that the trial Court has no power to award such damage but this does not represent the correct position of law. Relied on SOSAN V. HFP (2004) 3 NWLR (PT. 861) 855. The Respondent urge the Court to affirm the decision of

the lower Court as general damages are the natural consequences of unlawful seizure or detinue which is a tortuous liability.

ISSUE THREE
The Respondent contends that he gave evidence and a graphic account of how he was beaten up and badly battered by the officers of the 1st Defendant in which he called PW2 (Court bailiff) who testified to the assault and tendered medical report from Garki General Hospital and the photograph of the blood shot eyes medical report and the torn particular and driver’s licence of the Respondent (See pages 29-35 of records) which were not debunked by the Appellants. The Respondent narrates that he introduced himself as a lawyer and demanded to know the reason for the detention but the officers of the 1st Appellant became angry and assaulted him at the check point (See pages 156-164 of records). The Respondent reproduced the paragraphs 11, 12 and 15 of the joint statement of defence and paragraphs 9, 11 and 14 amended statement of defence (pages 250-252 and 156-169 of record). The Respondent reproduced paragraph 12 of amended statement of claim to state that the facts in that paragraph were admitted by the

Appellant in their joint statement of defence. The Respondent submits that the Appellants argued that he was aggressive and violent but according to the testimony of the DW1 during cross examination states that the Respondent drove himself to the Appellants office, now the question is if the Respondent was violent and un-cooperating as alleged, will he have driven himself to their office, wouldn’t the vehicle be towed away? The Respondent reproduced the holding of trial Court who saw the demeanor of PW1. The trial Court stated the reason why it did not believe the testimony of the Appellants’ witnesses and also comment on the demeanor of their witnesses. (See pages 292 and 266 of records). It is trite that the Appellate Courts does not interfere with the holdings of the trial Court who saw the demeanor of the witness unless it is perverse or amounts to a miscarriage of justice as held in AGBI V. OGBEH (2006) 5 SC (PT. 11) 129.

The Respondent argued also that he was assaulted and beaten at the check point and also in the office of the 1st Appellant which were neither challenged nor debunked. The legal effect of such unchallenged testimony of a

witness is that it will be believed by the Court as true as stated in SALAUDEEN V. OLADELE (2003) 3 NWLR (PT. 806) 29 and LEADWAY ASS. CO. LTD V. ZECO (2004) 11 NWLR (PT. 884) 316. Both evidences given by PW1 and PW2 are in consonance. DW1 admitted during cross examination that he was not the one that took the Respondent to the office of the Commandant which means that DW1’s testimony is hearsay (see page 265-266 of records). It is settled law that where a witness testimony is inconsistent and unreliable, a Court of law will not believe or rely on such inconsistent evidence, the Courts only rely on cogent and credible evidence of a witness, cited OMOZEGHIAN V. ADJARHO (2006) 4 NWLR (PT. 969) 33. The Respondent states that PW1 gave evidence to the effect that he was handed over to the Police by the Appellants who hand cuffed the Respondent, assaulted him further and took him to the hospital for treatment for injuries resulting from the assault and battery thereof (See page 251-252 of record). The Respondent argued that the Appellant in his argument that assault is criminal act and ought to be proved beyond reasonable doubt however, the Respondent

disagreed with that submission and referred to GABRIEL NDIBE & ORS V. PATRICK SUNDAY NDIBE (2008) LPELR 4178(CA) and ABDULHAMID V. AKAR (2006) 13 NWLR (PT. 996) 127 where the Court defined as assault.

Finally, the Respondent contend that the Courts have classified assault as tort and also as a crime, assault is trespass to person while detinue is trespass to chattel, the Respondent have the option to decide the type of relief suitable for him. At any rate the law did not specify a proof beyond reasonable doubt for the tort of assault and battery; this is elementary law of tort. The standard of proof of beyond reasonable doubt is only required in criminal trial not in determination of civil wrongs in tort; for assault and battery, civil action then the proof is on preponderance of evidence as in any civil proceedings. Cited the case of ELIAS V. OMO-BARE (1982) 5 SC 25; MADUABU V. RAY (2006) ALL FWLR (PT. 300) 1671; OTARU V. IDRIS (1999) 6 NWLR (PT. 606) 330 and AQUA V. ARCHBONG & ORS (2012) LPELR 9293 (CA). The Respondent urge this Honourable Court to uphold the trial Court’s decision.

ISSUE FOUR
The Respondent contended further that the Appellants filed a counter claim which is a separate action on its own. Cited ANWOYI V. SHODEKE (2006) 13 NWLR (PT. 996) 34 and also a counterclaimant is expected by law to lead evidence to prove his counter claim and can only succeed on the strength of his case, referred to OLUSILE V. MAIDUGURI METRO COUNCIL (2004) 4 NWLR (PT. 863) 290. The Respondent reproduced the relief sought by the Appellant in their counterclaim. The Respondent states that the relief is not borne out of by evidence before the Court, there is nothing before the Court establishing that the Respondent to the Counterclaim was never convicted for any office, warranting payment of fine. The Respondent urge the Court to deem the relief as baseless and unfounded, having not been based on any proven facts and known principle of law. According to the Respondent, the Appellants have not proved by evidence how they arrived at the sum claimed as fine in the counter claim. The sum claimed as relief is in the realm of special damages and ought to be pleaded, particularized and proved mathematically by the Counter claimants, this was not done. Cited ORJI V. ANYASO (2000) 2 NWLR

(PT. 643) 9. The Respondent submits that the payment of a fine must be founded on conviction for breach of a law, there is no evidence that the Respondent to was ever tried or convicted under the FRSC Act for any offence whatsoever. Section 10(6) of FRSC Act, is not applicable to the Respondent who has never been tried or convicted of the seat belt offence or of any offence at all, hence to penalize him will be running counter to the rule of natural Justice and the Constitution of Nigeria (as amended).

The Respondent contended further that a counterclaimant is expected to prove his entitlement to the sum, to the satisfaction of the Court by credible and reliable evidence, before the claim can be granted even if the Respondent did not file a defence. The Respondent urge the Court to dismiss the Appellants’ Counterclaim having not placed any evidence to entitled them to judgment on the counterclaim.

APPELLANTS’ REPLY BRIEF
ISSUE ONE
The Appellant argued that the Respondent argument that the impounding of the vehicle on reasonable suspicion it had been used to commit an offence does not constitute Appellants into accuser and the

prosecution under Section 10(7) FRSC Act is sine qua non before the impounding of his vehicle as anything short of this will amount to punishment before trial, did not arise from the decision of the trial Court. It is trite that a Respondent is not permitted to formulate issues or canvass argument on matters not arising from or related to the grounds of the appeal. Therefore, when a ground of appeal filed has no connection with the decision or order of the lower Court, such ground automatically becomes incompetent and would not be countenanced by the Court. Cited MERCANTILE BANK OF NIG. PLC & 1 OR V. LINUS NWOBODO (2005) 10-11 SCM 168; OWNERS, M V. GONGOLA HOPE V. SC (NIG.) LTD (2007) 15 NWLR (PT. 1056) 189 SC and ALH. KARI V. ALHAJI GANARAM (1997) 2 NWLR (PT. 488) 380. There is no requirement that the Respondent must first be tried before Appellants can impound his vehicle, the Appellants cites ESEKHAIGBE V. FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388 (CA) and OSES EDIRU V. FRSC (2016) 4 NWLR (PT. 1502) 209. The Appellants submits that the Respondent argument is misconceived when he stated that the imposition of penalties and confiscation of his

vehicle without trial and opportunity to be heard is illegal, unconstitutional and a denial of his right to fair hearing however, the prescription of fine (penalty) by the Respondents is lawful as stated in Section 10(4) of the Federal Road Safety Commission (Establishment) Act, 2007. According to the Appellants, the Act gives two disjunctive powers to members of the Corps: power to issue Notice of Offence or Court processes. The 1st Appellant therefore has discretion whether to arrest and prosecute persons reasonably suspected of having committed any traffic offence by serving such persons with Court processes or a notice of offence sheet. Relied on SAVANNAH BANK (NIG) LTD V. S.I.O. CORPN (2001) 1 NWLR (PT. 693) 212. The operative word in Section 10(7) of the FRSC Act, 2017 is “may” and the Supreme Court has defined May in the case of MOKELU V. F.C.W.H (1976) 3 S.C as permissive word. The Appellants further states that an alleged traffic offender is required to pay the stipulated fine or be prosecuted. The alleged violator is given an option which he either waives his right to a trial by paying the fine or he elects for trial by refusing or

failing to pay the fine. As rightly held by the Court below, the Appellants are not the imposers of the fines stated in the Notice of offence. The fines are contained in the FRSC Establishment Act. The Appellants merely notify an alleged offender of alleged commission of offence(s). If the alleged offender agrees with the Appellants and pay fine, then the matter ends there without any need for prosecution. If however, he refuses to pay fine, he is taken to dispute the allegation of committing a fine, only then prosecution will ensue.

The Appellants argued also that where a person admits liability in writing, may proceed to pay fine without necessarily having to go to Court, which does not in any way amount to denial of fair hearing, if there is no prosecution in Court. In some jurisdiction, a traffic ticket constitutes a notice that a penalty, such as a fine has been assessed against the driver of a vehicle; failure to pay generally leads to prosecution or to civil recovery proceedings for the fine. The Appellant submits that in the determination of this matter, emphasis should be on the statutory power of the Appellants impounding the Respondent’s

car and not on whether he was subsequently acquitted. The Appellants urge this Court to discountenance all the arguments in respect of the above matters as they neither arose from the judgment of the trial Court nor arose from any ground of appeal.

ISSUE TWO
The Appellants contend that the 1st Appellant’s right to continue to impound the Respondent’s car after his acquittal for assaulting its officer as the vehicle was not impounded for assault but as a result of reasonable suspicion it was involved in the commission of offence. The Brief of Argument was not meant to bring up the issue on which matter was not contested at the trial Court. The Appellants urge this Honourable Court to resolve this issue in their favour.

RESOLUTION
Having considered the Notice of appeal, the record of appeal and the respective briefs of both learned Counsel for the parties, I am inclined to adopt the issues donated by the Appellants for determination, so as to fully resolve all areas of complaint against the judgment.

On issue one, the Appellants challenged the jurisdiction of the trial Court contending that the 1st Appellant being a

Federal Agency of the Federal Government, the Court bestowed with jurisdiction is the Federal High Court as per Section 251 of the 1999 Constitution as Amended. It is settled law that jurisdiction of a Court is determined by the Plaintiff’s claim as endorsed in the Writ of Summons and Statement of Claim. See TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD V. GARBA (2002) 14 NWLR (PT. 788) 538 AT 563.

paragraphs (q), (r), and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.” A close examination of the additional jurisdiction conferred on the Federal High Court in the Section and by the 1979 Constitution clearly shows that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore, still be within the jurisdiction of the State High Court.”
The import of the said decision was reiterated by the apex Court in the case OLORUNTOBA-OJU & ORS V. DOPAMU & ORS (2008) LPELR-2595 (SC).
The essence of above decision is that what is not strictly provided for in Section 251(1) of the Constitution as exclusive jurisdiction of

the Federal High Court means it can be heard by the regular High Courts. Furthermore, there is also the claim against the breach of a statutory duty of the Appellants. The mere fact that the 1st Appellant is a Federal Government Agency without more cannot confer jurisdiction on the Federal High Court. The claim before the Court also is a factor, the subject matter must also fall under the jurisdiction of the Court. See RAHMAN BROTHERS LTD V NPA (2019) LPELR-46415(SC) which the apex Court held:
“…There is no doubt that respondent/cross appellant is a Federal Government Agency but it is the contention of learned senior counsel for respondent/cross appellant that the status of the said respondent/cross appellant as a Federal Government Agency, without more, does not confer the requisite jurisdiction on the Federal High Court to hear and determine the action as constituted particularly as the cause of action before the trial Court is grounded on negligence and landlord and tenant relationship. There is no allegation of breach of statutory duty placed on the respondent/cross appellant by the respondent in the Statement of Claim neither was any issue

joined thereon. The substance of the ground challenging the jurisdiction of the trial Court in this matter is subject-matter jurisdiction i.e whether the Federal High Court has jurisdiction to hear and determine an action based simply on negligence on the part of a landlord to prevent a fire from spreading to and destroying the properties/goods of the tenant in possession…Once again I have to repeat that though the respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court exercise its jurisdiction unhindered. The jurisdiction of the Federal High Court is therefore exercisable over the parties and subject matter of the suit. See: 1) DG. S.S.S. v. Ojukwu (2006) 13 NWLR (Pt. 998) 575 at 586 – 587, Paras. G-C. 2) NEPA v. Edegbero (2002) 12 SC (Pt.11) 119 @133 Per Tobi, J.S.C. 3) Mudiaga Erhueh v. INEC (2003) 5 NWLR

(Pt. 812) 70 at 76. 4) Onuorah v. Kaduna Refining Company Limited (2005) 6 NWLR (Pt. 821) 393 at 405. 5) National Union of Electricity Employees Association v. Bureau of Public Enterprises (2010) 2 – 3 SC 27 at 67.
Per ONNOGHEN, J.S.C. ( Pp. 7-15, paras. F-D).

The claim before the Court is grounded on Torts of Detinue, Assault and Battery and thus the claim for damages. Detinue is a tort and the principal or main claim of this suit, so the Federal High Court has no jurisdiction on tort generally which is under equity. Remedy for tort actions is not provided by law and the Federal High Court even where additional jurisdiction has been bestowed on it, is so done by law and not in equity. The source of such additional jurisdiction must be in the Constitution or legislation and not at large. Furthermore, the proviso to Section 251(1) of the Constitution says:
“Provided that nothing in the provision of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

FWLR (pt. 781) 1482 @ 1502 paragraphs F – G and 1502 paragraphs F – G. In the instant case, it’s evident from the pleadings that the matter arose from traffic offences allegedly committed by the Appellant by virtue of the provisions of Section 10(4) (e) 10(4)(e) and 10 (4) (2) (a) of the Federal Road Safety Commission [Establishment] Act, 2007 and Section 114 (1) and (2) of the National Road Traffic Regulation, 2007. Arguably, the real subject matter of the case does not come within the purview of the provisions of Section 251, the 1999 Constitution (supra).” Per SAULAWA, J.C.A.
Flowing from above, the Federal High Court lacks the jurisdiction and therefore issue one is resolved against the Appellants and I hold that the Federal Capital Territory High Court has jurisdiction to hear the claim for damages in respect of claims founded in Torts.

The Appellants under issue 2 and 3 challenged the finding that there was no basis for the Notice of offence sheet issued on the Respondent notwithstanding Regulation 58 (4) of the National Road Traffic Regulations, 2004 made pursuant to Section 5 of the Federal Road Safety Commission Act, 2007. It places on a

driver of a vehicle to ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion. Furthermore, the granting of damages as a result of detinue is challenged.
There is no doubt that the Regulations are subsidiary laws which has to be obeyed. It was duly made and there is no issue as to its legitimacy. The question answered by the trial Judge was whether there was an infraction to warrant the Notice. Of course, the Appellants could in the face of a breach issue Notice of offence and also impound vehicles by which an offence was committed. See Section 10(5) H and ESEKHAIGBE V FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA). It was made out in evidence that the Respondent was not booked at the scene of flagging down. The notice was issued after the Respondent was taken to the 1st Appellant’s office and as held by the Court in the case of EDIRU V F.R.S.C. (2016) 4 NWLR (Pt. 1502) 209 at 245 where the Court stated that Notice of offence is a prelude to a charge and is not a charge or information but a mere notice, a forerunner to either in a preliminary step towards arraignment. The Respondent was also

not arraigned for any offence under the Federal Road Safety Act but the Penal Code. The Appellants in seeking to overturn the findings must find in the record of appeal evidence that make the finding of the trial Court perverse.
In an attempt to do so, the Appellants relied on the evidence of the sole witness called by the Appellants and particularly when he said the person in the front seat in the Respondent’s car did not have his seat belt on and this was denied by the person who testified as CW2 and also CW1, the Respondent. Both of them explained that the passenger unbelted himself while attempting to get out of the car when the altercation started between the parties. The trial Court believed the evidence of the Claimant. The aspect not denied is the fact that the Appellants did not deny that the passenger actually came out of the car.
Assuming the passenger did not have his seat belt on, should the liability of breaching the regulation be transferred from the person who was unbelted to the driver of the car who had his seat belt on? The quoted Section 10(4), the basis of the Appellants’ contention says:

“Driving a vehicle not fitted with seat belt or where fitted, not wearing same while the vehicle is in motion.”
I agree with the Respondent that in interpreting the above quoted provision the words must given its literal meaning where the words are clear. See PDP & ANOR V. INEC & ORS (1999) LPELR-24856 (SC) where the apex Court held as follows:
“…The language of the Constitution where clear and unambiguous must be given its plain evident meaning.”
Per OGUNDARE, J.S.C. ( Pp. 124-129, paras. E-C)
There is therefore nothing in the said provisions that makes the driver of the car responsible for the infraction of a passenger. It is merely the convenience of the 1st Appellant to want to make a driver liable because he owns or the vehicle is under his control. Criminal liability is not transferable, see what the apex Court said in PML (NIG) LTD V FRN (2017)LPELR-43480(SC) thusly:
“In this case, the Appellant contends that once the Respondent collected money from Lucky Igbinedion, the offences alleged against it had been “effectively compromised, compounded or condoned”. The Respondent countered that the Appellant’s submission by

which it has tried to import the principle of agency into our criminal jurisprudence is not only strange but misconceived bearing in mind that in our criminal jurisprudence, criminal liability is personal – ACB V. Okonkwo (1997) 1 NWLR (pt.480) 194. Thus, it will not be a valid defence in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as agent of a principal since it is not a defence that is known to law. Very true; criminal liability is personal, it cannot be transferred because the mens rea or actus reus is on the accused in Court – See Akpa v State (2008) 14 NWLR (pt. 1106) 72.” Per AUGIE, J.S.C.
Therefore, even if the Respondent in answer to a question under cross examination referred to the CW2 as the offender, it cannot be translate to him being the offender since the regulations did not say in case any passenger in a car found not to have his seat belt on, the person driving will be liable. Therefore, the transferred liability leading to the struggle was wrong and not supportable in law.
Now did the Appellants establish any wrongdoing against the Respondent

before the trial Court? The trial Judge in his evaluation of evidence made this finding:
“I have in this regard, had a sober reflection as well as critically examined the evidence of the PW1 and PW2 vis- a-vis the DW1. The Pw1 and Pw2 testified that the Plaintiff’s passenger testified that the plaintiff passenger in the vehicle (i.e. the Pw2) had his seat belt fastened on at the time the Plaintiff’s vehicle was flagged down. The PW1 and PW2 testified in no uncertain terms that the PW1 gave his vehicle papers as demanded and that the PW2 had his seat belt on and had to remove it in order to come down from the vehicle when they were asked to stop and park.”
The trial Judge went on to review some pieces of evidence and said the CW1 was not cross examined on some vital facts to the effect that when the officer flagged them down and requested for the vehicle particulars, the Claimant (Respondent) gave them to him. He was also not cross examined on his testimony that he had his seat belt fastened on when the officer flagged them down. This implies admission of the said evidence and testimonies of the CW1 and CW2. Furthermore, the

sole witness of the Appellants admitted that it was CW2 who allegedly did not fastened his seatbelt. He went on to find that there were no reasonable circumstances to warrant the attempt to issue the Notice of Offence on the Respondent by the Appellants. The Appellants also relied on Regulation 58(4) of the National Road Traffic Regulations, 2004 which states as follows:
“The driver of any vehicle shall ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion.”
The point at which the purported Notice of offence was issued the vehicle was not in motion. Agreed that it places responsibility of ensuring that passengers in a vehicle have their seat belts fastened on the driver. In any case this was not the Section relied upon by the Appellants in booking the Respondent.
On the allegation that vehicle particulars had expired, the Court below found otherwise and there was evidence to support the findings. The trial Judge took judicial notice of the dates the particulars were issued and they are all yearly licenses, no vehicle papers that has less than a year tenor. If that is the case,

expiry date is easy to detect and that cannot attract the allegation that the trial Judge speculated on such evidence.
The Respondent willing gave his particulars and was not the one who committed the offence therefore, the basis on which the alleged offence was committed did not exist and so the detention of the Respondent’s car was without justification and actionable.

Now as to whether the tort of detinue was committed we need to examine what detinue is and its features. Detinue was defined in the case of AMINU ISHOLA INVESTMENT LTD V AFRI BANK NIG PLC (2013) LPLER-20624(SC) as follows:
“What is the nature of an action in detinue in KOSILE V. FOLARIN (1989) NWLR (PART 107) 1; (1989) 4 S.C. Pt. 150, the Supreme Court Per Nnaemeka Agu, J.S.C. held as follows: “It must be clearly stated that in an action for detinue the gist of the action is the unlawful diversion of the Plaintiff’s chattel which he has an immediate right to possess after the Plaintiff has demanded its return.” See also SHONEKAN V. SMITH (1964) 1 ALL NLR 168 at p. 173; AKPENE V. BARCLAYS BANK NIG. LTD. & ANOR. (1977) 1 SC 47; KATE ENT. LTD V. DAEWOO NIG. LTD (1985) 2 NWLR

(PART 5) 116; ADEGBAIYE V. LOYINMI (1986) 5 NWLR (PART 43) 665. In CHIGBU V. TONIMAS NIG. LTD (2006) NWLR (PART 984) 189, the word “chattel” is used interchangeably with the word “goods” with respect to the ingredients of the tort of detinue. This definition would appear to be in consonance with that in Halsbury’s Laws of England (Third Edition) Vol. 38 page 775 paragraph 1285 as was seen earlier.” Per ALAGOA ,J.S.C.

the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.”

Having set out what detinue is, what must exist and what the Claimant must prove to be entitled to reliefs available in such claims. The question is did the Respondent prove detinue? The trial Judge found it proved and awarded damages thus the complaint of the Appellants.

The facts of Respondent’s car being detained, a formal demand for it and the refusal to release the car were all established. The defence was that there was a Notice of offence and therefore the detention of the car was justified as argued by the Appellants. Why the argument of the Appellants would fail to convince the Court is that if the flagging down of the Respondent was due to seat belt infraction, ordinarily the Appellants would have walked over to that side of the car and not bother with particulars of the car. The issue of particulars would have been secondary and not the main issue. Here, they struggled and it generated into a fight. Why would the sighting of car papers even get to the level of a scuffle? Having found that the reasons advanced by the Appellants are not tenable and cannot find legal basis to justify the detention, the

holding over of the car after the formal demand qualifies as detinue and the trial Judge made correct findings in that regard. I have no basis to disturb the findings.

The liability arose from the fact that the Notice of offence was not established because even though the Respondent was prosecuted and discharged, it was not for the traffic offence but assault which makes the allegation of breaching a traffic regulation not established and then, the detention of the car becomes tortuous. Impounding the car had no legal basis. The Appellants failed to initiate prosecution for the alleged traffic regulation offence allegedly committed after the refusal to pay the fine imposed by the Notice of offence. Their silence on the traffic offence further strengthened the case of the Respondent. The offence can be strict liability but it has to be established, it’s a criminal liability and so proof must be beyond reasonable doubt.

I disagree with the Appellants that element of detinue were not proved. They were all proved and in detinue, the return of the chattel and damages are usual remedies which the Court would ordinarily award. It is the quantum that

is left to the discretion of the Court but the damages must be awarded.

The contention that the Respondent did not mitigate damages by not acting sooner than he did is preposterous because the record of Court shows that the trial Judge made an order on the return of the vehicle and the Appellants refused to so release until the threat to commit them for contempt before the car was released so which other step could the Respondent have taken and yielded results, seeing that the Appellants had no regard for orders of Court. In any case, the demand for the release of the car is a step to mitigating damages.

Did the trial Judge proceed on a wrong principle in assessing damages? The Appellants failed to identify the wrong principle applied in assessing damages and therefore the complaint is not made out.

Consequently, I resolve issues two and three against the Appellants.

Issue four challenges the award of the sum of N1Million Naira damages for assault and battery against the Appellants. The Appellants contended that there was paucity of evidence in support of the allegation of assault and battery and therefore, the trial Court erred in

awarding the said sum. Furthermore, they argued that the allegation was not proved beyond reasonable doubt. It is not in doubt that the position of law is that where an allegation of crime is made in a civil claim, it must be proved beyond reasonable doubt. See BASSEY V. STATE (2012) LPELR-7813 (SC) wherein the Court held thus:
“…If the commission of a crime by a party to any proceeding is directly in issue, any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
Per RHODES-VIVOUR, J.S.C. (P. 17, paras. A-C)

The Appellants contended that there are inconsistencies in the evidence of the Respondent when the record from the Magistrate Court is considered against his evidence before the trial Court. The law is against contradictory evidence but not slight inconsistencies which is normal in human beings recall of event as time and circumstances affect memory. In this appeal the Appellants also alleged that there was contradiction in the evidence of the Respondent and his witness when CW2 suggested that the Respondent was fighting with two officers (page143 of the record) while the Respondent said one officer. The fact

still remains that the Appellants confronted the Respondent as a team, it was not in evidence that there was only one officer who handled the Respondent, it was a team and the fact of who gave the hardest blow would be of no moment, and if the witnesses gave less than were actually present, that could have raised a flag but not when the number does not exceed and fall below the actual officers who accosted the Respondent. Furthermore, the inconsistency is not material as to affect material facts. See EROKWU & ANOR V. EROKWU (2016) LPELR-41515 (CA) where the Court held thus:
“There is obviously an inconsistency in the evidence of DW1. However it is the law that minor inconsistency between a previous written statement and subsequent oral testimony does not necessarily destroy the credibility of a witness. There are plethora of authorities on the fact that inconsistencies in the evidence of a witness that do not go to the root of the issues cannot render the evidence of a witness unbelievable. See Bassil v. Fajebe 4 SCNJ 257 at 269.” Per OGUNWUMIJU, J.C.A. (P. 35, paras. B-E).

On whether assault was proved, we need to examine the definition of

“assault” and elements that must be proved. Black’s Law Dictionary Seventh Edition defined ‘assault’ at page 1108 thus:-
“The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.”
The Court in the case of ENEJI V STATE (2013) LPELR-20393 (CA) EXPLAINED WHAT THE PROSECUTION needs to prove to establish the offence of assault in a criminal trial and it said thusly:
The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are:-
“a) that there was a strike, touch or application of any kind of force by the accused person on another person
b) that harm was caused to that other person thereby, and c) the strike, touch or application of the force was not authorized, justified or excused bylaw.” Per GARBA,J.C.A (as he then was).

It is trite that assault and battery qualify as both criminal and tortuous acts. So it can arise in a criminal trial or civil claim in tort.

Taking the evidence before the trial Court against the elements to be

proved as evaluated, the learned trial Judge found the ingredients proven thus the liability. The evidence of the CW1 and CW2 as to the beating and rough handling of the Respondent was not challenged nor was it denied. The trial Court found thus:
“The evidence of the Plaintiff in support of the claim, per PW1 is that when he and the PW2 were flagged down, and the 1st defendant’s officials demanded for his vehicle papers, he presented them and the officials finding them up to date, returned them to him. However, as the PW2 was alighting from the vehicle, the officials claimed he did not have his seat belt fastened on but this was not true. Despite the PW2’s explanation, they demanded for his vehicle documents a second time. He was still trying to present the papers when the 4th Defendant snatched them from him and they were torn. When he introduced himself as a lawyer, the officers were infuriated the more. They then forced him back into the car and took him to their office where the deflated the tyres, impounded the car and again started beating him for disobeying an officer on duty. In the office, about 30 officers tortured him by

beating and dragging him on the floor. It took the intervention of the sector Commander to stop them. As a result of the beating he received injury in his eye which became blood shot. He took a photograph of it. He was later taken to Utako Police Station and from there to Garki Police Station. He was taken to Garki Hospital by the Investigating Police officer at the Garki Police Station for medical attention. While the photograph of the injured eye was tendered and admitted as Exhibit F, the photographs of receipts issued to him for payments made thereat were admitted as Exhibits H- H3, while the medical report was admitted as Exhibit I.”

Though the Appellants tried to deny the narration of the Respondent, their line of narration left too many loopholes uncovered but also agreed that a fight ensued in the course of the event. CW2’s evidence supports the Respondent that he was beaten as evidenced by the Police taking him to hospital. Since the Appellants were the ones who handed the Respondent over to the Police, they are in a better position to explain how the Respondent came about his injuries that warranted treatment. The trial Judge who had

the opportunity of seeing the witness and observed their demeanor under cross examination, believed CW1 and CW2. The basis of reliance on their evidence is evident and I have no reason to disagree with him because the Judge said he considered CW2 to be consistent and resolute in his testimony which he considered as corroboration to the evidence of the Respondent. Exhibits F and I were not in any way controverted and the report confirms traumatic ocular inflammation of the left eye. In the light of all these, the Appellants cannot say that there was insufficient evidence even at the level of proof beyond reasonable doubt as contended by the Appellants. The first and second ingredients of the tort of assault and battery were proved.
This issue is resolved against the Appellants.

Issue five challenges the dismissal of the counter claim and contended that it was done without having regard to the evidence before the Court. Undoubtedly, a counter claim is a separate claim, see OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 (SC) where the Court held thus:
“…a counter claim is always considered as an independent, separate and distinct claim

which a trial Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case.”
Per SANUSI, J.S.C. (Pp. 25-26, paras. F-A)
And obviously roles are reversed when it comes to the counterclaim but evidence is presented along proof or defence of the main claim.
The trial Judge having found that the purported issuance of the Notice of offence was without legal justification, therefore, on what basis or ground would the notice upon which the counter claim was founded stand? It also means there cannot be any complaint about nonpayment of the demand notice in respect of the Notice of Offence or statutory fines or demurrage for 672 days as demanded by the Respondent. Impounding the car was wrongfully done and there cannot arise any levy to be paid for the wrong done to the Respondent. Secondly the Appellants cannot be liable in detinue in respect of the same and the Respondent be made to pay a fine in respect of demurrage. They are mutually exclusive.

Issue 6 is resolved against the Appellants.

Having resolved all issues against the Appellants, the appeal lacks merit and is hereby dismissed. The Judgment of the trial Court delivered on the 9th November, 2015 by HON. JUSTICE JUDE. O. OKEKE is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, J.C.A. I agree with the reasoning, conclusion and orders therein.

Appearances:

ABASS SANMI Esq. with him, SUSAN MOBOLAYI Esq. For Appellant(s)

FESTUS AKPOGHAHINO Esq. with him, UCHE ONYECHEFUNA Esq. For Respondent(s)