GOVERNOR, DELTA STATE & ORS v. EDUN (2021)

GOVERNOR, DELTA STATE & ORS v. EDUN

(2021)LCN/15109(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/AS/333/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

THE GOVERNOR OF DELTA STATE OF NIGERIA 2. ATTORNEY-GENERAL OF DELTA STATE 3. SENIOR VEHICLE INSPECTION OFFICER (UGHELLI NORTH LOCAL GOVERNMENT AREA OF DELTA STATE) APPELANT(S)

And

OLUKUNLE OGHENEOVO EDUN, ESQ RESPONDENT(S)

RATIO

INTERPRETATION OF SECTION 2 (A) OF THE PUBLIC OFFICERS PROTECTION LAW OF DELTA STATE CAP P23 REGARDING THE EFFECT OF THE FAILURE TO COMMENCE AN ACTION AGAINST A PUBLIC OFFICER FOR ANY ACT, NEGLECT OR DEFAULT IN THE EXECUTION OR INTENDED EXECUTION OF ANY LAW, PUBLIC DUTY OR AUTHORITY WITHIN THE STIPULATED PERIOD

Section 2 (a) of the Public Officers Protection Law of Delta State Cap P23 states:- “2 Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision shall have effect – (a) the action prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuation of damage, or injury, within three month next after the ceasing thereof…” The purpose of the Public Officers Protection Law is to protect public officers from civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months after the act, default or neglect complained of. The law is designed to protect only the officer who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification. The law removes the right of action, the right of enforcement and the right of judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce in a Court of law after three months of the accrual of the cause of action. See EGBE v. ALHAJI (1990) 3 LPELR – 1033, IBRAHIM v. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 64 LRCN 5044, NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION v. JOHNSON (2019) 2 NWLR (PT. 656) 247 and OFFOBOCHE v. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT. 739) 458. PER JOSEPH EYO EKANEM, J.C.A.

BURDEN PLACED ON A PARTY WISHING TO RELY ON A STATUTE OF LIMITATION

Order 15 Rule 4 (1) of the High Court of Delta State (Civil Procedure) Rules, 2009 (the Rules) provides:- “A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.” It has been held that a party wishing to rely on a statute of limitation must specifically plead the same. In KETU v. ONIKORO (1984) 10 SC 265, 267 – 278, Obaseki, JSC, opined that:- “It is a cardinal rule of pleading that such specific matters as the Limitation Law must be expressly set out or pleaded in the statement of defence once it is not pleaded, the defendant cannot be granted the protection of that law.” See also ELABANJO v. DAWODU (2006) 15 NWLR (PT. 1001) 76, 47 and OYEBAMIJI v. LAWANSON (2008) 15 NWLR (PT. 1109) 122, 133. Nevertheless, Courts have also held that though defence of limitation ought to be pleaded, it still can be raised at any stage in the proceeding since it is an issue of jurisdiction. In FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) 11 NWLR (PT. 1044) 1, 16, Mukhtar, JSC (as he then was) opined thus:- “There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such an issue borders on the fundamental issue of jurisdiction.” See also NASIR v. CIVIL SERVICE COMMISSION, KANO STATE (2010) 6 NWLR (PT. 1190) 250, 270, ABI v. CENTRAL BANK OF NIGERIA (2012) 3 NWLR (PT. 1286) 1, 45 and ABUBAKAR v. MICHELIN MOTOR SERVICES LIMITED (NO. 1) (2020) 12 NWLR (PT. 1738) 553, 567 – 570. The position immediately above was founded on the basis that the issue of limitation is an issue of jurisdiction. But Onnoghen, JSC (as he then was) disagreed with this rationale in ELABANJO v. DAWODU supra. Page 150 as follows: “On the sub-issue as to whether a statute of limitation raises an issue of jurisdiction of the trial Court, I hold the view that it does not.” After analyzing the concept of jurisdiction and the position of the law that it can be taken at any time depending on what materials are available, his Lordship concluded by stating that:- “The above however is limited to a situation where the substance of the objection is jurisdiction, not where a legal defence such as limitation law is being raised in answer to the case of the plaintiff. I hold the view that to say that an action that is alleged to be statute-barred is a matter affecting the competence of the Court before which it is instituted instead of competence of the cause or right of action so instituted is to stretch that word too far.” What is certain is that a defence of limitation is required to be pleaded specifically by the Rules of Court. However, where the date or time of accrual of the cause of action is clearly stated in the writ of summons and the statement of claim and there would be no need to call evidence to prove or determine the same, the defence need not be specifically pleaded. See OYEBANJI v. LAWANSON (2004) 13 NWLR (PT. 889) 62, 74 which case was affirmed by the Supreme Court in OYEBAMIJI v. LAWANSON supra. PER JOSEPH EYO EKANEM, J.C.A.

POSITION OF THE LAW ON THE EXCEPTION TO THE APPLICABILITY OF THE PUBLIC OFFICERS PROTECTION LAW

There is however one well established exception to the applicability of the Public Officers Protection Law, namely: it does not apply to acts of a public officer which are outside the scope of his authority or which is in abuse of his office or without semblance of legal justification. See NWANKWERE v. ADEWUNMI (1966) 1 ALL NLR 129, OFFOBOCHE v. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT. 739) 458, IBRAHIM v. JSC, KADUNA (1998) 4 NWLR (PT. 584) 1, HASSAN v. ALIYU (2010) 17 NWLR (PT. 1223) 547, KWARA STATE PILGRIMS WELFARE BOARD v. BABA (2018) 9 NWLR (PT. 1623) 36 and NATIONAL REVENUE MOBILIZATION ALLOCATION FISCAL COMMISSION v. JOHNSON (2019) 2 NWLR (PT. 1656) 247. PER JOSEPH EYO EKANEM, J.C.A.

WHETHER THE PUBLIC OFFICERS PROTECTION ACT IS APPLICABLE TO EXTINGUISH RIGHT OF ACTION IN A CASE FOR DECLARATORY JUDGMENT ON AN ALLEGED UNCONSTITUTIONAL ACTS

In HIS EXCELLENCY, PROF. AMBROSE ALLI, GOVERNOR OF BENDEL STATE v. OBAYUWANA (1982) 3 NCLR 206, 210 – 211, it was held that the Public Officers Protection Act does not apply to extinguish right of action in a case for declaratory judgment on allegedly unconstitutional acts. The binding force of this pronouncement was confirmed in GOVERNMENT OF IMO STATE v. GREECO (1985) 3 NWLR (PT. 11) 71, 77. This case falls into that exception in the light of the contention and claim of the respondent. It is immaterial that the suit was not commenced as a fundament right matter since the principal claim does not relate to enforcement of fundamental right. However, since the claim touches on respondent’s constitutional right to freedom of movement, it could be ventilated in the suit commenced otherwise than under the Fundamental Right (Enforcement) Procedure Rules. In FRN v. IFEGWU (2003) 112 LRCN 2233, 2262, Uwaifo, JSC held that:- “It is not in doubt that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing actions in a High Court. See DIRECTOR, SSS v. AGBAKOBA (1999) 3 NWLR (PT. 595) 314. The manner in which the Court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the constitution. The Court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons.” PER JOSEPH EYO EKANEM, J.C.A.

WHO HAS THE CAPACITY TO SUE AND BE SUED

No action can be brought by or against any person other than a natural person or persons unless such a person has been given by statute, expressly or impliedly, or by common law:- (a) A legal persona under the name by which it sues or is sued. Examples of this are corporations sole and aggregate, bodies incorporated by law and “quasi – corporations” constituted by Act of Parliament; or (b) A right to sue or be sued by that name. Examples are partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue or be sued but not incorporated See FAWEHINMI v. NIGERIAN BAR ASSOCIATION (1989) 2 NWLR (PT. 105) 558 and NKPORNWI v. EJIRE (2009) 4 NWLR (PT. 1145) 131. PER JOSEPH EYO EKANEM, J.C.A.

HOW TO DETERMINE WHETHER A PARTICULAR UNINCORPORATED ASSOCIATION, IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION, HAS THE STATUS OF A SUABLE ENTITY WHICH CAN BE INFERRED FROM A STATUTE OR SERIES OF STATUTES

In the case of FAWEHINMI v. NBA (NO. 2) supra 602, the Supreme Court stated that:- “However, when the question for determination is whether in the absence of express statutory provision, a particular unincorporated association has the status of a suable entity which can necessarily be inferred from a statute or series of statutes, one must of necessity go through the task of leafing meticulously through the statutes in question in order to decide the point.” PER JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): On the 5th day of August, 2014, the respondent, a legal practitioner based in Warri, Nigeria, drove his car, a Toyota Camry XLE with Registration No. TDU170 EV, along the Afisere Road, Ughelli, Delta State. In the course of the journey he slowed down on approaching a road block of steel, wood, buckets, gallon and heavy stones mounted on the road by the 3rd appellant for the purpose of verifying vehicles without valid Road Worthiness Certificate. A Vehicle Inspection Officer (VIO) suddenly jumped into the middle of the road, wielding a big wood. The respondent applied the brake of his car and came out to confront the said officer who was dressed in the uniform of a Vehicle Inspection Officer but with no name tag.

The officer identified himself as a VIO and menacingly demanded for the respondent’s Road Worthiness Certificate. He (the respondent) replied that he did not have and did not need it for his vehicle which he uses personally and not for commercial transportation or haulage. This attracted other VIOs who congregated around his car on the road. A traffic

gridlock was almost created by the situation. On seeing the riotous situation, the VIOs removed the wood, planks etc to allow the respondent to pass. After the incident, the respondent checked his vehicle particulars and discovered that in the course of applying for his vehicle lience, a Certificate of Road Worthiness was processed alongside and he paid N2,800.00 to the Delta State Government.

The respondent, not being satisfied that there is any provision of the law that empowers the appellants to collect money or to issue Certificate of Road Worthiness in respect of vehicles used for private purpose or any law authorizing blockade of public highways with dangerous instruments, took out an originating summons against the appellants for the determination of certain questions and grant of reliefs against the appellants. The originating summons was taken out in the High Court of Delta State, Ughelli Division (the trial Court). On account of the hostile nature of the proceedings, the trial Court ordered the parties to file pleadings. In the statement of claim filed, the respondent claimed against the appellants, jointly and severally, the following reliefs:-

“i. A DECLARATION that the Road Traffic Law Cap R9, Laws of Delta State, 2008 and/or any law made thereunder did not authorize the Defendants (particularly the 3rd Defendant or any of his subordinates) to set up road blocks and carry sticks, woods, iron materials (offensive weapons) while carrying out their responsibilities under the said law.
ii. A DECLARATION that the Road Traffic Regulations (a subsidiary legislation made pursuant to the Road Traffic Law (Cap R9) Laws of the Delta State 200 of Delta State) did not make any provision entitling the Defendants to demand and/or collect any fee/levy or issue any “Certificate of Road Worthiness” in respect of vehicles used for private purposes.
iii. A DECLARATION that all fees/levies/monies collected by the Defendants in respect of or pertaining to the issuance of “Certificate of Road Worthiness” regarding vehicles used for private purposes are illegal and a violation of the provisions of the Road Traffic Law (Cap R9) Laws of Delta State, 2008.
iv. AN ORDER compelling the Defendants to refund to the Claimant the sum of N2,300.00 (Two Thousand Three

Hundred Naira) collected by the Defendants for the issuance of the “Certificate of Road Worthiness”.
v. AN ORDER OF INJUNCTION restraining the Defendants individually or collectively either by themselves or through their agents, servants, privies, contractors or whatever means from further collecting any levy/fee/money with respect to the issuance of any document tagged “Certificate of Road Worthiness” in respect of vehicles used for private purposes and setting up road blocks on any road in Delta State for the purpose of verifying the road worthiness of vehicles.”

The appellants filed a statement of defence denying respondent’s claim, contending that the VIOs did not block the Afisere Road and that the inspection/classification of vehicles for road worthiness is not restricted to only commercial vehicles but also extends to private vehicles. After trial and taking of addresses, the trial Court (per F. O. Ohwo, J)in its judgment on 18/1/2017 found for the respondent and granted reliefs (i), (ii), (iii), (v) and (vi) in the statement of claim. The trial Court also awarded costs in the sum of N100,000.00 in respondent’s favour.

Aggrieved by the decision, the appellants appealed to this Court by the means of a notice of appeal filed on 6/3/2017. The appellants sought for and obtained the leave of this Court to raise what is termed issues of jurisdiction, to wit; that the suit of the respondents is statute-barred by virtue of the Public Officers Protection Law and that the 3rd appellant is not a juristic person.

Pursuant to the rules of this Court, the appellants filed a brief of argument on 24/10/2017 and reply brief on 7/5/2019. Both briefs were settled by S. O. Monye, Esq (Director Civil Litigation, Delta State) and were deemed duly filed and served on 25/1/2021. The respondent filed his brief of argument on 15/1/2019. The brief was settled by the appellant himself and was deemed duly filed and served on 25/1/2021.

At the hearing of the appeal on 25/1/2021, S. O. Monye, Esq, adopted and relied on the brief of argument filed on behalf of the appellants in urging the Court to allow the appeal and set aside the judgment of the trial Court.

The respondent who appeared in person, adopted and relied on his brief of argument in urging the

Court to dismiss the appeal and affirm the decision of the trial Court.

In the appellants’ brief of argument, three issues have been formulated for the determination of the appeal. They are:-
“(i) Whether the suit of the Respondent filed against the Appellants on the 21st day of November, 2014 is not statute barred in view of the provisions of Section 2 (a) of the Public Officers Protection Law Cap P23 Vol. IV Laws of Delta State of Nigeria 2006. Distilled from ground 1.
(ii) Whether the 3rd Appellant “Senior Vehicle Inspection Officer” (Ughelli North Local Government Area of Delta State) is a juristic person that can be sued. Distilled from ground 2.
(iii) Whether by virtue of the provisions of all relevant laws relating to Road Traffic. The Certificate of Road Worthiness has no application to private motor vehicle. Distilled from ground 3.”

The Respondent distilled the following issues from the grounds of appeal for the determination of the appeal:-
“(1) Whether the suit of the Respondent filed against the Appellants on the 21st day of November, 2014 is statute barred in view of the provisions

of Section 2 (a) of the Public Officers/Protection Law Cap. P23 Vol. IV Laws of Delta State of Nigeria, 2006?
(ii) Whether in view of the statutory recognition accorded the 3rd Appellant “Senior Vehicle Inspection Officer” (Ughelli North Local Government Area of Delta State) by the provisions of Section 4 (3) of the Road Traffic Law of Delta State; the 3rd Respondent is a person known to law?
(iii) Whether upon proper considerations of the provisions of all relevant laws relating to Road Traffic in Delta State, there is any statutory provision for the payment of levy and/or the issuance of Certificate of Road Worthiness in respect of private motor vehicles?

The two sets of issues are almost totally the same. I will therefore adopt the issues formulated by appellants’ counsel in the determination of the appeal.

ISSUE 1
Whether the suit of the Respondent filed against the Appellants on the 21st day of November, 2014, is not statute barred in view of the provisions of Section 2 (a) of the Public Officers Protection Law Cap P23 Vol. IV Laws of Delta State of Nigeria.

Appellants’ counsel straightaway submitted

that the suit of the appellant is statute-barred. He referred to Section 2 (a) of the Public Officers Protection Law of Delta State and submitted that the appellants are public officers within the intendment of the provision. He contended that the cause of action arose on 5/8/2014 while the suit was filed on 21/11/2014 which is over the three-month period prescribed by the Public Officers protection Law. He placed reliance on IBRAHIM v. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 64 LRCN 5044, among other cases.

Respondent submitted that the Public Officers Protection Law is not an all-embracing bar against actions brought against public officers but admits exceptions which he set out in his brief of argument. He further submitted that the act of the appellants was ultra vires and had no semblance or colour of authority, and so cannot be protected under the law. He referred to EGBE v. ALHAJI (1990) 21 NSCC (PT. 1) 306 among other cases. He stated that the trial Court found that the 3rd appellant abused the powers of his office and acted outside the purview of the Road Traffic Law of Delta State. It was his contention that the Public Officers

Protection Law is inapplicable where a party raises constitutional issues or challenges the provisions of a law or calls for the interpretation of a law. He referred to reliefs 1, 2, 3 and 4 in the statement of claim.

Continuing, respondent argued that the illegal retention of the fee for Road Worthiness Certificate means that there is a continuous wrong or injury to the respondent. This, he said, takes the case outside the application of the law. He thereafter posited that to rely on a limitation law a defendant is mandated to plead the same based on Order 15 Rule 4 (1) and (3) of the Delta State High Court (Civil Procedure) Rules 2009. It was his final contention under this issue that the Public Officers Protections law does not apply to actions touching on fundamental rights. He placed reliance on the Fundamental Rights (Enforcement) Procedure Rules 2009 and relief IV in his statement of claim.

In his reply, appellants’ counsel posited that the claim of the respondent is not a challenge to any law nor is it hinged on constitutional interpretation. He argued that issue of limitation of action is an issue of jurisdiction which can be raised

at any stage for the first time. He further argued that in the statement of claim, the respondent clearly stated the date of the accrual of the cause of action and so raising the issue of limitation has not taken him by surprise. He added that leave of this Court was obtained to raise the issue. He placed reliance on FORESTRY RESEARCH INSTITUTE v. GOLD (2017) ALL FWLR (PT. 380) 1444. He finally argued that the claim of the respondent was not brought under the Fundamental Rights (Enforcement) Procedure Rules and that the principal claim has nothing to do with enforcement of a fundamental right.

RESOLUTION
Section 2 (a) of the Public Officers Protection Law of Delta State Cap P23 states:-
“2 Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision shall have effect –
(a) the action prosecution or proceeding shall not lie or be instituted unless it is commenced within three

months next after the act, neglect or default complained of, or in the case of a continuation of damage, or injury, within three month next after the ceasing thereof…”
The purpose of the Public Officers Protection Law is to protect public officers from civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months after the act, default or neglect complained of. The law is designed to protect only the officer who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification. The law removes the right of action, the right of enforcement and the right of judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce in a Court of law after three months of the accrual of the cause of action. See EGBE v. ALHAJI (1990) 3 LPELR – 1033, IBRAHIM v. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 64 LRCN 5044, NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION v. JOHNSON (2019) 2 NWLR (PT. 656) 247 and OFFOBOCHE v. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT. 739) 458.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Respondent contented that the appellants cannot rely on the limitation provided for in the Public Officers Protection Law since they did not plead the defence in their statement of defence. The appellants met the argument with the contention that the respondent clearly pleaded and led evidence on the date of the accrual of the cause of action and that this Court granted them leave to raise the issue as a fresh issue, and also that being an issue of jurisdiction, it could be raised at any stage for the first time.
Order 15 Rule 4 (1) of the High Court of Delta State (Civil Procedure) Rules, 2009 (the Rules) provides:-
“A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.”
It has been held that a party wishing to rely on a statute of limitation must specifically plead the same. In KETU v. ONIKORO (1984) 10 SC 265, 267 – 278, Obaseki, JSC, opined that:-
“It is a cardinal rule of pleading that such specific matters as the Limitation Law must be

expressly set out or pleaded in the statement of defence once it is not pleaded, the defendant cannot be granted the protection of that law.”
See also ELABANJO v. DAWODU (2006) 15 NWLR (PT. 1001) 76, 47 and OYEBAMIJI v. LAWANSON (2008) 15 NWLR (PT. 1109) 122, 133.
Nevertheless, Courts have also held that though defence of limitation ought to be pleaded, it still can be raised at any stage in the proceeding since it is an issue of jurisdiction. In FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) 11 NWLR (PT. 1044) 1, 16, Mukhtar, JSC (as he then was) opined thus:-
“There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such an issue borders on the fundamental issue of jurisdiction.”
See also NASIR v. CIVIL SERVICE COMMISSION, KANO STATE (2010) 6 NWLR (PT. 1190) 250, 270, ABI v. CENTRAL BANK OF NIGERIA (2012) 3 NWLR (PT. 1286) 1, 45 and ABUBAKAR v. MICHELIN MOTOR SERVICES LIMITED (NO. 1) (2020) 12 NWLR (PT. 1738) 553, 567 – 570.

The position immediately above was founded on the basis that the issue of limitation is an issue of jurisdiction. But Onnoghen, JSC (as he then was) disagreed with this rationale in ELABANJO v. DAWODU supra. Page 150 as follows:
“On the sub-issue as to whether a statute of limitation raises an issue of jurisdiction of the trial Court, I hold the view that it does not.”
After analyzing the concept of jurisdiction and the position of the law that it can be taken at any time depending on what materials are available, his Lordship concluded by stating that:-
“The above however is limited to a situation where the substance of the objection is jurisdiction, not where a legal defence such as limitation law is being raised in answer to the case of the plaintiff. I hold the view that to say that an action that is alleged to be statute-barred is a matter affecting the competence of the Court before which it is instituted instead of competence of the cause or right of action so instituted is to stretch that word too far.”
What is certain is that a defence of limitation is required to be pleaded specifically by

the Rules of Court. However, where the date or time of accrual of the cause of action is clearly stated in the writ of summons and the statement of claim and there would be no need to call evidence to prove or determine the same, the defence need not be specifically pleaded. See OYEBANJI v. LAWANSON (2004) 13 NWLR (PT. 889) 62, 74 which case was affirmed by the Supreme Court in OYEBAMIJI v. LAWANSON supra.

I have looked at the statement of defence of the respondent at pages 73 – 77 of the record of appeal. The cause of action of the respondent going by the statement of claim arose from his being abruptly and menacingly stopped on a public highway by VIOs while plying the Afisere Road, Ughelli in his car. Paragraph 9 of the statement of claim states:-
“Claimant states that on the 5th of August, 2014 he was plying the Afisere Road, Ughelli with his Toyota Camry XLE with Registration No. TDU 170 EV, to conduct a search on a land dispute, when he slowed down on approaching a road block with dangerous tools/equipment like steel, woods, buckets, gallon and heavy stones put on the road by the 3rd Defendant in purported exercise of their power

of verifying vehicles without valid road Worthiness Certificate. A vehicle Inspection Officer under the Ughelli Vehicle Inspection Office suddenly and carelessly jumped into the middle of the Road, wielding a big wood like someone who has gone berserk. Claimant immediately stepped on the brake of the car to avoid what would have been manslaughter. Claimant came out of his car and confronted the man (who was putting on the uniform of a Vehicle Inspection Officer but with no name tag on it) and asked him why he wanted to be killed.”

Paragraphs 10, 11 and 12 of the statement of claim chronicle respondent’s funder interface with the VIOs on that occasion.

The date of the accrual of the cause of action to wit: 5/8/2014 is clearly pleaded in the statement of claim and so the need did not arise for the appellants to specifically raise or plead the defence in their statement of defence as not doing so did not take the respondent by surprise. The essence of the requirement for specifically pleading a statute of limitation in Order 15 Rule 4 (1) of the Rules is so as not, to “take the opposite party by surprise”. The respondent could

not be taken by surprise by the date he himself pleaded and the legal consequence of that pleading.

It must be re-stated that the appellants applied for and were granted leave by this Court to raise and argue the issue of limitation on 7/5/2019. What is the effect of the leave so granted? There seems to be two conflicting positions of the Supreme Court on this question. In IBRAHIM v. LAWAL (2015) 17 NWLR (PT. 1489) 490, 526, Okoro, JSC held that:-
“Where leave is sought and obtained to raise fresh issue on appeal, this cures the failure to have pleaded the issue at the trial Court.”
His Lordship placed reliance on the case of FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD supra.
On the other hand, in the case of ISAAC v. IMASUEN (2016) 7 NWLR (PT. 1511) 250, 273, Sanusi JSC, while, dealing with the defence of laches and acquiescence raised at the appellate level with leave of Court, opined that:-
“It seems to me that the appellant hinged his appeal on the doctrine of laches and acquiescence. Can the defence avail him in the present circumstances of this case? I think not. I say so because such defence had neither been

raised in his pleading nor was that defence canvassed at the trial Court as required by law. The fact that the appellant was granted leave to raise such defence is of no moment, since it was not pleaded initially. See ONUWAJE v. OGBEIDE (1991) 3 NWLR (PT. 178) 147.”
I do not see the need to dwell on which of the precedents I should follow. This is because in this instance, the date of the accrual of the cause of action has already been clearly pleaded in the statement of claim and so the statement of the law in Isaac V. Imasuen supra does not apply. The issue of limitation of action is therefore properly before this Court.

The parties appear to be ad idem that the appellants are public officers within the intendment of Section 2 (a) of the Public Officers Protection Law. I will therefore not dwell on the point.

Respondent has rightly argued that the Public Officer Protection Law is not a “Catch all” provision that bars suits against Public Officers after three months of the accrual of the cause of action. There are exceptions to its applicability. Respondent argued that the Law does not apply to actions seeking declaratory

reliefs. He did not cite any authority to ground his submission and I am not aware of any. I therefore discountenance the submission.
There is however one well established exception to the applicability of the Public Officers Protection Law, namely: it does not apply to acts of a public officer which are outside the scope of his authority or which is in abuse of his office or without semblance of legal justification. See NWANKWERE v. ADEWUNMI (1966) 1 ALL NLR 129, OFFOBOCHE v. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT. 739) 458, IBRAHIM v. JSC, KADUNA (1998) 4 NWLR (PT. 584) 1, HASSAN v. ALIYU (2010) 17 NWLR (PT. 1223) 547, KWARA STATE PILGRIMS WELFARE BOARD v. BABA (2018) 9 NWLR (PT. 1623) 36 and NATIONAL REVENUE MOBILIZATION ALLOCATION FISCAL COMMISSION v. JOHNSON (2019) 2 NWLR (PT. 1656) 247.

I have already set out paragraph 9 of the statement of claim in this judgment. I should also set out paragraphs 10, 11, 12 and 14 of the statement of claim of the respondent. I do so hereunder:-
“10 The man only identified himself as a VIO and menacingly demanded for Claimant’s “Road Worthiness Certificate”, and Claimant replied

that he did not have and did not need it for his vehicle, a Toyota Camry car which he uses personally and not for commercial transportation or haulage.
11 The VIOs at that spot who identified themselves as VIOs from Ughelli North Local Government Area later clustered round Claimant’s car with the air that they have caught a big fish. These unfortunate situations almost created a traffic gridlock because Claimant insisted on leaving his car on the Road and hold them accountable for its safety. Seeing the riotous situation, they later removed the woods, planks, metals and other objects they illegally placed on the road to allow Claimant to pass.
12. The act of the Defendants in causing a blockade of the Afiesere Road affected, restricted, delayed Claimant’s official business and was a violation of the Claimant’s right to freedom of movement within Nigeria, and the said violation was not justified in the circumstance.
14. Claimant gleaned through the provisions of the Road Traffic Law (Cap R9, Laws of Delta State, 2008) and the subsidiary legislations made thereunder but was unable to see any provisions that entitles the Defendants

to collect monies/levies/fees or to issue any Certificate of Road Worthiness in respect of vehicles used for private purpose. Neither is there any legal enablement authorizing blockade of public highways with dangerous instruments.”

The respondent was in essence contending that the VIOs had no iota or semblance of legal authority or justification to collect money for or issue Certificate of Road Worthiness in respect of vehicles used for private purposes including his vehicle. It was also his case that they do not have any modicum or semblance of legal justification for blocking public highways with dangerous instruments. The learned trial judge at page 185 of the record of appeal agreed with the respondent in both counts. This therefore brings the cause of the respondent outside the suffocating embrace of the Public officers Protection Law of Delta State.

In paragraph 12 of the statement of claim (which is quoted hereinbefore), the respondent was in essence claiming that the acts of the VIOs infringed his constitutional right to freedom of movement guaranteed in Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

In HIS EXCELLENCY, PROF. AMBROSE ALLI, GOVERNOR OF BENDEL STATE v. OBAYUWANA (1982) 3 NCLR 206, 210 – 211, it was held that the Public Officers Protection Act does not apply to extinguish right of action in a case for declaratory judgment on allegedly unconstitutional acts. The binding force of this pronouncement was confirmed in GOVERNMENT OF IMO STATE v. GREECO (1985) 3 NWLR (PT. 11) 71, 77. This case falls into that exception in the light of the contention and claim of the respondent. It is immaterial that the suit was not commenced as a fundament right matter since the principal claim does not relate to enforcement of fundamental right. However, since the claim touches on respondent’s constitutional right to freedom of movement, it could be ventilated in the suit commenced otherwise than under the Fundamental Right (Enforcement) Procedure Rules. In FRN v. IFEGWU (2003) 112 LRCN 2233, 2262, Uwaifo, JSC held that:-
“It is not in doubt that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing actions in a High Court. See DIRECTOR, SSS v. AGBAKOBA (1999) 3 NWLR (PT. 595) 314.

The manner in which the Court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the constitution. The Court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons.”

In the light of what I have stated thus far, I enter a negative answer to issue 1 and resolve it against the appellants.

ISSUE 2
Whether the 3rd appellant “Senior Vehicle Inspection Officer (Ughelli North Local Government Area of Delta State)” is a juristic person that can be sued.

Appellants’ counsel contended that the 3rd appellant is not a juristic person. He referred to Section 4 (1) and (2) of the Road Traffic Law Cap R9 Laws of Delta State (hereafter referred to as the Law). He urged the Court to strike out his name.

Respondent contended that the appellants did not indicate in their statement of defence that they would challenge the competence of the 3rd appellant. He further contended that by Section 4 (1) of the Road Traffic Law

three administrative units were created in Delta State, viz: (i) Asaba zone (ii) Warri zone and (iii) Ughelli zone. He referred to Section 4 (3) of the Law and posited that the only office recognized or the head of the Vehicle Inspection Office in Ughelli is the “Senior Vehicle Inspection Office” with statutory duties conferred on it. He therefore submitted that the 3rd appellant is a creation of statute and therefore a competent party and that the addition of “(Ughelli North Local Government Area of Delta State)” is merely descriptive.

He argued in the alternative that even if this Court upholds the submission of appellants, the claim of the respondent will still remain valid. He placed reliance on SAPO v. SUNMONU (2010) 189 LRCN 52 and Order 13 Rule 8 (1) of the High Court Civil Procedure Rules.

RESOLUTION
No action can be brought by or against any person other than a natural person or persons unless such a person has been given by statute, expressly or impliedly, or by common law:-
(a) A legal persona under the name by which it sues or is sued. Examples of this are corporations sole and

aggregate, bodies incorporated by law and “quasi – corporations” constituted by Act of Parliament; or
(b) A right to sue or be sued by that name. Examples are partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue or be sued but not incorporated
See FAWEHINMI v. NIGERIAN BAR ASSOCIATION (1989) 2 NWLR (PT. 105) 558 and NKPORNWI v. EJIRE (2009) 4 NWLR (PT. 1145) 131.

The 3rd appellant, “Senior Vehicle Inspection Officer (Ughelli North Local Government Area of Delta State)” is not a natural person. There is no express provision of the Road Traffic Law of Delta State or any other law which confers on him the right to sue or by sued eo nomine. The question then is as to whether or not it can be inferred from the law that the 3rd appellant can be sued. In the case of FAWEHINMI v. NBA (NO. 2) supra 602, the Supreme Court stated that:-
“However, when the question for determination is whether in the absence of express statutory provision, a particular unincorporated association has the status of a suable entity which can necessarily be inferred from a statute or

series of statutes, one must of necessity go through the task of leafing meticulously through the statutes in question in order to decide the point.”

I shall therefore visit the relevant provisions of the Law to determine whether the 3rd appellant is suable.
Section 3 (1) of the Law provides that:-
“There shall be established for the state a unit in the Ministry of Transport to be called the Vehicle Inspection Unit (hereinafter referred to as “the Unit”)
Section 4 of the Law state:-
(1) The headquarters of the Unit shall be in Asaba and shall be headed by the officer in charge, of the Transport Division of the Ministry of Transport who shall be designated, Principal Vehicle Inspection Officer.
(2) For administrative purposes the Unit shall be divided into zones as follows:-
…………………..
(3) The Unit shall be staffed by such officers with such designations as the appropriate authority may from time to time appoint and every zone shall be under the charge of a Senior Vehicle Inspection Officer.”
It needs be mentioned that one of the zones of

the Vehicle Inspection Unit is Ughelli North Local Government Area. The body that is set up by Section 3 of the Law is “Vehicle Inspection Unit” and it is a unit in the Ministry of Transport. The word “Unit” is defined as:-
“A single thing, person or group that is a constituent of a whole.” – Merriam Webster’s Dictionary on-line.
Though it has duties that affect the public, it is a part or constituent of the Ministry of Transport. It is headed by the Principal Vehicle Inspection Officer. For administrative purposes, the Unit is divided into zones including Ughelli North Local Government Area which is headed by a Senior Vehicle Inspection Officer. The Senior Vehicle Inspection Officer is only an administrative head of his zone and not the overall body, to wit: the Vehicle Inspection Unit. The right to sue or be sued does not arise from the mere fact that a statute recognizes the existence of a body or office for the performance of a function. The right must be donated by statute expressly or impliedly. See EROKORO v. GOVERNMENT OF CROSS RIVER STATE (1991) 4 NWLR (PT. 185) 322. I fail to see how it can be

inferred that the 3rd appellant is authorized by the law to sue or be sued eo nomine being just an administrative head of an administrative part of the Vehicle Inspection Unit which is a part of the Ministry of Transport.
The position of a Senior Vehicle Inspection Officer is akin to the position of a Divisional Police Officer who is the administrative head of a Police Division. In the case of AFRICAN IVORY INSURANCE v. COMMISSIONER FOR INSURANCE (1998) 1 NWLR (PT. 532) 50, 57, it was held that while the Commissioner of Police could be sued eo nomine as it is known to the Constitution, the Division Police Officer being an office set up merely for administrative convenience cannot be sued. It is therefore my opinion that the 3rd appellant is not a person that can sue or be sued eo nomine.

It must be stated by way of footnote, and as rightly argued by the respondent, that the 3rd appellant is not a suable person does not invalidate the claim of the respondent as the 1st and 2nd appellants are juristic persons who can be sued for the actions or omissions of Vehicle Inspection Officers.

Nevertheless, I enter a negative answer to issue 2 and resolve it in appellant’s favour.

ISSUE 3
Whether by virtue of the provisions of all relevant laws relating to Road Traffic, the Certificate of Road Worthiness has no application to private motor vehicles.

Appellants’ counsel argued that certificate of road worthiness has application to private vehicles. He referred to the learned trial judge’s interpretation of Section 48 (1), (4) and (5) of the Law and submitted that it cannot be the correct intendment of the law makers. This he said is because the law defines “Motor Vehicle” to mean mechanically propelled vehicle intended or adapted for use on roads. He also referred to Section 3 (2) of the Road Traffic Law. He contended that if the intention of the law makers was that private vehicle be exempted from carrying certificate of road worthiness it would have been expressly so stated. He stated that this is on account of the fact that Section 48 (1) and (2) of the Law which empowers persons authorized to impound vehicles plying the road without certain particulars includes road worthiness certificate as one of the particulars meant to be carried by vehicles plying the road.

Respondent submitted that a perusal of the Law and its Regulations shows that there is no provision therein that empowers the appellants to issue certificate of road worthiness in respect of vehicles used for non-commercial purposes. Rather, the only section that authorizes the appellants to examine vehicles is Regulation 58 of the Regulations which relates only to examination of commercial vehicles and the issuance of certificates therefor after such examination. He referred to Section 2 of the Law (the interpretation Section) and submitted that his vehicle does not fall within the definition of a commercial vehicle. He also referred to Regulation 2 of the Regulation and Section 43 of the Law which empowers the State Executive Council to make regulations on various matters relating to road traffic and Regulation 5 of the Regulation made pursuant thereto, which he said relates to the examination of commercial vehicles only. He argued that there is no similar provision in respect of vehicles used for private purposes.

RESOLUTION
Section 43 (1) of the Road Traffic Law gives the Executive Council of the State power to make regulations in

respect of the various items set out in paragraphs (a) to (t) of the sub-section. This includes:-
(a) Registration of motor vehicles and trailers and the particulars to be entered in the register, and prescribing the fees to be paid; and
(b) The compulsory examination at any time of motor vehicles or trailers or (sic: of) any class or description thereof and the places and manner of such examination.
Pursuant to the foregoing, the Executive Council of the State made or is deemed to have made the Road Traffic Regulations (RTR) as a subsidiary legislation, which carries the force of law. Regulation 5 (1) of the RTR sets out 12 categories for the registration of vehicles. They are:-
(i) Motor cycle;
(ii) Private motor vehicle;
(iii) Trailer;
(iv) Taxi;
(v) Commercial (goods only);
(vi) Stage carriage for not less than eight and not more than fifteen passengers;
(vii) Stage carriage for over fifteen passengers;
(viii) Omnibus;
(ix) Agricultural machines;
(x) Tractor;
(xi) Vehicles exclusively designed for use, or machinery used, on the construction or maintenance of road or bridges;
(xii) Fire engine or trailer pump.

Paragraphs (2), (3), (4) and (5) of Regulation 5 make detailed and comprehensive provisions for the factors or matters that must be present for the registration of categories of vehicles as follows:-
(1) Paragraph (2) is for registration of commercial and passenger carrying vehicles, to wit: categories (iv), (v), (vi), (vii) and (viii) of the paragraph (i).
(2) Paragraph 3 is for registration of trailers (that is to say category (iii) of paragraph (i).
(3) Paragraph 4 is for registration of agricultural machine, that is to say category (ix) of paragraph (i).
(4) Paragraph 5 is for registration of tractor, that is to say category (x) of paragraph 1.
The requirements include the production of a certificate of road worthiness issued under regulation 58 at the time of the application for registration. This requirement applies only to vehicles that come under paragraphs (2) and (3) only, that is, commercial and passenger carrying vehicles and trailers.
It is clear from the above that the provisions of Regulation 5 is loudly silent in respect of private motor vehicles. The implication is, as rightly

held by the learned trial judge, that:-
“… there is no subsidiary legislation or Road Traffic Regulation providing for the production of a certificate of road worthiness before a vehicle to be used purely for private purpose can be registered as a “private motor vehicles.” – page 182 of the record of appeal.
Regulation 58 (1) and (2) of the RTR states:-
“(1) Every commercial vehicle, trailer, taxi, stage carriage, omnibus shall before being registered or licensed and every six month thereafter be examined by a vehicle inspection officer.
(2) Examination certificate – where at such examination a vehicle is found to be road worthy the vehicle inspection officer shall issue a certificate to that effect as in form M. L. 9 in the Sixth Schedule which shall remain valid for six months. Such certificate shall be carried in the registration book and produced when required by licensing authority, a vehicle inspector or a Police office.”
Again, private motor vehicle is not mentioned in Regulation 58 (1) and (2) above. In JEV v. IYORTYOM (2015) 15 NWLR (PT. 1483) 484, 506, Okoro, JSC stated the law on the

implication of the foregoing thus:-
“It is trite law and an unassailable legal principle that the express and unambiguous mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same subject matter. This is usually captured in the latin maxim which states” expressio unis est exclusio alterus.”
See also BUHARI v. YUSUF (2004) 114 LRCN 2808 and ATTORNEY-GENERAL OF LAGOS STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2014) 9 NWLR (PT. 1412) 217.
The position of the law set out supra gives a quietus to the submission of appellants’ counsel that if the lawmakers had intended to exempt private motor vehicles from carrying certificate of road worthiness it would have been expressly so stated.
Appellants’ counsel referred to Section 48 (1), (4) and (5) of the law and submitted that the learned trial judge’s interpretation of the said provisions cannot be correct. The provisions are quoted hereunder:-
“(1) Any vehicle found plying the roads without any of the particulars enumerated in Subsection (4) of this

Section may be impounded and kept in an approved place by any member of the Nigeria Police Force or any person duly authorized on the behalf.
(4) For the purpose of this Section, the terms –
“particulars” include driving licence, hackney and stage carriage licence, road worthiness certificate, certificate of insurance and vehicle license…”
(5) For the avoidance of doubt, it is hereby declared that the provisions of this section are without prejudice to and in addition to penalties already provided for in the Road traffic Regulation.”
At page 185 of the record of appeal, the learned trial judge reasoned thus:-
“I have carefully perused the Road Traffic Law and the subsidiary legislation, the Road Traffic Regulation, aforesaid and I hold the firm view that the use of the word “any” under Section 48 of the Road Traffic Law is used to mean “some” and of all motor vehicle to which each document listed under particulars applies. The certificate of Road Worthiness or Road Worthiness Certificate whatever you want to put it as the law stands today in this state has no application to private motor vehicle.”

I agree with the learned trial judge. The provisions for particulars of motor vehicles are to be found in the RTR which as I have already demonstrated do not require a private motor vehicle to have a certificate of road worthiness. It follows therefore that the words “any of the particulars…” refer to the particulars as are required in respect of each category of motor vehicle as set out in Regulation 58 of RTR. In the case of SKYE BANK PLC v. IWU (2017) 16 NWLR (PT. 1590) 24, 103 – 104, the Supreme Court (per Nweze, JSC) opined that:-
“Now, the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification, Duck V. Batey IQBD 79 and indeed, has been constructed to mean as wide as possible” Becket V. Sutton 51 LJCH; some out of many, an indefinite number, one indiscriminately of whatever kind or quantity” Federal Deposit Ins. Corporation V. Winton C.C.A Tenn 131 F2 780, 782, Texaco Panama Inc V. SPDA (NIG) LTD (2002) LPELR 3146 (SC) 28, A – C (2002) 5 NWLR (PT. 759) 209. Put differently, the word “any”

has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and subject matter of the statute.”
In the context of Section 48 (1) of the Law, the words “any of the particulars…” mean some out of many. Excluded in respect of the particulars for which a private motor vehicle may be impounded is the road worthiness certificate. The implication of holding otherwise and accepting the position of appellants’ counsel is that a private motor vehicle can be impounded for not having hackney and stage carriage licence which is part of the list in Section 48 (4) of the Law. But Section 2 of the Law defines hackney carriage to mean:-
“… any motor vehicle designed or constructed to carry not more than Seven persons, used or intended to be used for carrying passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum”
Stage carriage
“means any motor vehicle used or

intended to be used for carrying passengers for hire or reward other than such a vehicle constructed or adopted to carry less than eight persons, the passengers paying separate and distinct fare or at the rate of separate or distinct are for their respective places and shall be deemed to include the expression “omnibus”.
A private motor vehicle certainly cannot be described as a hackney carriage or stage carriage following the above definitions. The law does not contain a definition of “Private motor vehicle”. However Section 2 of the Law defines “a commercial vehicle” to include a hackney carriage, stage carriage and any motor vehicle primarily designed for the carriage of goods excluding any such vehicle used exclusively for carrying the personal effects of the owner and not for hire or reward. The word “Private” is defined as:-
“Belonging to or for the use of a particular person or group not for public use.” – Oxford Advanced learner’s Dictionary 7th edition, page 1155.
It can be draw from the foregoing that a private motor vehicle is a motor vehicle belonging to a

particular person or which is for the use of a particular person or group and the carrying of their personal effects and not for public use or for hire or reward.
It would be absurd and completely illegal to impound a private motor vehicle for not having or carrying hackney licence or stage carriage licence because it is provided as two of the particulars for which any vehicle may be impounded for not having. That is the absurdity that the interpretation canvassed by appellants’ counsel will result to. An absurdity should not be attributed to lawmakers. The Courts will lean against a construction that will produce an absurdity. See DIN v. ATTORNEY-GENERAL OF THE FEDERATION (2004) 12 NWLR (PT. 888) 409 and OKIKE v. LPDC (2005) 128 LRCN 1861.
It is well established that the provision of a statute must not be read in isolation from other sections. Rather a statute must be read as a whole and related sections are to be considered together to arrive at the intention of the lawmakers – BRONIK MOTORS LTD v. WEMA BANK LTD (1983) 1 SCLR 296 and NWAIGWE v. FRN (PT. 1166) 169. When the relevant sections of the Law and the relevant regulations of the

RTR are read communally, the conclusion is inescapable that the requirement for a motor vehicle to have certificate of road worthiness does not apply to private motor vehicles.
I therefore enter an affirmative answer to issue 3 and resolve it against the appellants.

Before drawing the curtain on this judgment, I need to remind public bodies and public officers that a public body or public officer vested with statutory power must take care not to exceed or abuse its or his power. It or he must keep within the limits of the authority committed to it. This is to prevent arbitrariness and the rule of man rather than the rule of law. See WILSON v. ATTORNEY-GENERAL OF BENDEL STATE (1985) 1 NWLR (PT. 4) 572, 591. The Vehicle Inspection Officers went beyond the powers vested in them by the Law and the RTR by violently stopping the private motor vehicle of the respondent on a public highway using menacing tactics and dangerous implements to demand for certificate of road worthiness which the said vehicle is not required to have. Such conduct sends a wrong signal to the citizens who may adopt such strong-arm tactics as a means of settling disputes.

On the whole, I find no merit in the appeal and it fails except in respect of the 3rd appellant whose name is hereby struck out. I accordingly dismiss the remainder of the appeal and affirm the decision of the trial Court.

I assess the costs of the appeal at N200,000.00 against the 1st and 2nd appellants and in favour of the respondent.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment just delivered, and I agree entirely with the well horned reasoning, articulation and conclusion arrived at by my learned brother, Ekanem, JCA in dismissing this appeal.

However, before I make my salient observation on the substance of the appeal, I think it imperative to note that as regards the Two (2) seemingly inconsistent decisions of the apex Court in IBRAHIM V. LAWAL (2015) 17 NWLR (PT. 1489) 490, 526, per Okoro, JSC and ISAAC V. IMASUEN (2016) 7 NWLR (PT. 1511) 250, 273, (per Sanusi, JSC as he then was), there appears to be strictly speaking, no conflict between the decisions, as the IBRAHIM V. LAWAL (supra) envisages a situation where the facts were not pleaded at the trial and only raised by leave

of Court. The leave granted would, in the circumstance be deemed to have enacted the pleadings, in respect of those facts.
However, the latter case of ISAAC V. IMASUEN would, by reference to the equitable defences of laches and acquiescence, appear to have delineated, defined or delimited the specie of defences which facts or name thereof must be pleaded before they may be entertained as validly raised.
They would appear to be special or specific defences as specified in the various civil procedure Rules and Evidence Act and as equitable defences or special defences. I imagine the ejusdem generis rule of interpretation to beacon equitable defences as envisaged in ISAAC VS. IMASUEN’S case (supra).

On the substance of the appeal, I endorse entirely that the Appellant’s appeal has no merit as the Respondent’s action was not statute barred, there being in existence a cause of action that did not enjoy the protection afforded to public officers against liability under the Act or Law of Delta State and there being in existence juristic Defendants who could be sued for the acts that were in violation of the rights of the Respondents in abuse of powers.

I will only end by pointing out that though the provisions of the Road Traffic Law and Regulations of Delta State does not specifically require the possession of Road worthiness certificate for private vehicles, but the generised provision of Section 48 (1), (4) and 5 of the Road Traffic Regulations applicable appears to me to warrant an interpretation as may be applicable. The Section 48(1) is, to me, a specific provision and would prevail as one that applies and invokes the Subsection 4 as applicable.
It is in my view, only “hackney” and “stage carriage” license as included in Subsection 4 that may not be applicable to private vehicles.
It cannot be the legislative intent that private vehicles, which of course may also carry non-fee paying passengers as loved family members or people in distress and danger may not be assured of Road worthiness and thus expose the users thereof to risk; should the occupiers liability not apply? Are we importing the doctrine of volunti non fit injuria? With no protection for even innocent volunteers?
I would rather surmise and think that, it is the crafting of the Section 4 Subsection 1 of the Road Traffic Regulation of Delta State

that may be the problem in that it simply provides thus “(1) Any vehicle found plying the roads without “ANY” of the particulars enumerated in Subsection (4) of this Section may be impounded and kept in an approved place by any member of the Nigeria Police Force or any person duly authorized in that behalf. For the purpose of this section, the terms – “particulars include driving licence, hackney and stage carriage licence, Road worthiness certificate, certificate of insurance and vehicle licence.”
From the above and on a strict literal and liberal interpretation, it would mean that the possession of at least one (underlined for emphasis) of the particulars enumerated by a vehicle plying the road suffices. The words “any” denotes singular. There is real ambiguity. So a private vehicle owner may carry a hackney licence or even at least only a driver’s licence and not compulsorily, a road worthiness certificate! If the draftsman had intended the possession of all the listed particulars it would have said so.
There should be specific enumerations of what particulars are expected to be borne by each

category of vehicles and users as in the Road Traffic Law and Regulations, 1963 of Northern Nigeria, adopted by the Northern States of Nigeria in the Laws extant.
The clarity of a law or legislation makes its enforcement easier and prevents abuse as occasioned in the instant case at hand.
Legislative amendment to the law is recommended, just as law enforcement should be done in civility and not in “brashness” as shown in the instant appeal herein.

For the aforesaid views in fortification of the lead judgment and humble views of mine, I concur that the appeal be dismissed, as lacking in merit.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, JOSEPH EYO EKANEM, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.
The appeal is hereby dismissed.

Appearances:

O. MONYE, Esq. (Director Civil Litigation, Ministry of Justice, Delta State), with him, G. I. UGBECHIE, Esq (Senior State Counsel) For Appellant(s)

Respondent in person For Respondent(s)