FEDERAL ROAD SAFETY COMMISSION v. EMMANUEL A. OFOEGBU
(2014)LCN/7496(CA)
RATIO
APPEAL: PRELIMINARY OBJECTION IN APPEAL; WHETHER THE WRONG USE OF NAMES AN INCONSEQUENTIAL ERROR THAT THE COURT CAN EXERCISE IT DISCRETION TO CORRECT
In my respectful opinion, the preliminary objection has no substance as the brief itself is headed “APPELLANT’S BRIEF OF ARGUMENT” with the appellant’s name as the appellant and the respondent’s name as the respondent, to which the respondent reacted in his brief of argument, showing the respondent was not misled or prejudiced by what at best is a misnomer or error by the appellant’s brief stating that its learned senior counsel is the respondent’s counsel, which, in my considered opinion, is a pardonable mistake. See Agbule v. Warri Refinery and Petrochemical Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318 at 341 per the Lead judgment of Ogunbiyi, JSC., thus – “The wrong use of the name did not overreach or put the respondent to any form of disdain … The use of the name in my view, is at best a misnomer and which did not occasion any negative effect. This court under its inherent powers has the jurisdiction to correct such inconsequential error which does not require any formal application to be made.” See also Afolabi and Ors. v. Adekunle and Anr. (1983) 8 S.C. 98, Teriba v. Adeyemo (2010) 13 NWLR (Pt. 2011) 242 at 264, Kalu v. Odili (1992) 6 SCNJ 76, and Registered Trustees of Airline Operators of Nigeria (supra). per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
ACTION: CAUSE OF ACTION; WHETHER THE NATURE OF THE CLAIM OR THE CAUSE OF ACTION DETERMINES THE LOCUS STANDI OF THE PARTY BRINGING THE ACTION
It is trite that the nature of the claim or the cause of action determines the locus standi of the party bringing the action vide Taiwo v. Adegboro and ors. (2011) 5 S.C. (Pt. 11) 179. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT: TAKING JUDICIAL NOTICE SUO MOTU; WHETHER IT IS WRONG FOR A COURT TO SUO MOTU TAKE JUDICIAL NOTICE OF EVIDENCE WITHOUT HEARING FROM BOTH PARTIES ABOUT IT
The court below justified its position by stating that it took judicial notice of the newspaper report. The appellant contended that it was wrong for the court below to suo motu take judicial notice of the newspaper report without affording the parties the opportunity to react to it. I agree with the appellant’s submission. In as much as the innovative Section 124 (1) and (2) of the Evidence Act permits a court to acquire knowledge from other sources, like newspaper report or the internet, not available to the parties before it, in the event the court decided to use the knowledge so acquired, it is bound by Section 124(3) of the Evidence Act cited by the appellant to refer the parties to the relevant information for their input, if any, before utilising the researched information for resolution of the dispute before it. For convenience Section 124(3) of the Evidence Act provides – “The court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as its necessary to ensure that the party is not unfairly prejudiced”. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
CONSTITUTIONAL LAW: INFRINGEMENT OF FUNDAMENTAL RIGHTS; WHEN DOES A PARTY HAS THE LOCUS STANDI TO SUE TO ENFORCE HIS FUNDAMENTAL RIGHTS
In my modest view, it could not have been imagined from the papers in support of the application (supra) that the application was filed to protect public right. For the complaints stated above consummate into the pivotal grouse by the respondent that Section 36 (12) of the 1999 Constitution was not complied with by Regulations 2012, therefore the appellant has no legal framework to enforce Regulations 2012 as they relate to the respondent’s arrest and the impounding of his private motor vehicle. In a situation of this nature, the respondent would have the standi to sue to enforce his fundamental rights in the manner he sued in this case vide Denen Tofi v. Ushe Uba and Anor. (1987) 3 NWLR (Pt.6) 707 at 719 where the Court of Appeal (Jos Division) in treating Section 33 (12) of the Constitution of the Federal Republic of Nigeria 1979, now Section 36 (12) of the 1999 Constitution, held inter alia that –
“For it appears to me a little bit late in the day to argue now that a person could not complain of an infraction of his Fundamental Human Rights provided for by Section 33 (12) of 1979 Constitution until he has been convicted of the offence he is complaining about.”
It should be appreciated that locus standi of a claimant is established by looking at the face of the claim to ascertain whether the claimant’s justiciable civil rights and obligations have been or are likely to be infringed. There must therefore be a link or nexus between the claimant and the disclosed cause of action respecting his legally enforceable rights and obligations; and, in determining locus standi the prospect of the action succeeding is not a relevant factor.
The respondent thus disclosed his sufficient personal interest on the face of the application that his legally enforceable civil rights (fundamental rights in short) of his private moveable property (a motor vehicle) and his imminent arrest by the appellant were in danger which clothed the respondent with the standi to sue the appellant for the enforcement of his fundamental rights. See Attorney-General of Lagos State v. Eko Hotels Ltd. and Anor. (2006) 9 SCNJ 104, Olubodun and Ors. v. Lawal and Ors. (2008) 6 – 7 S.C. (pt.1) page 1, Ojukwu v. Ojukwu and Anor. (2008) 12 S.C. (pt.111) page 7, Pam v. Mohammed (2008) 5 – 6 S.C. (Pt.1) 83, Nyame v. F.R.N. (2010) 3 S.C. (Pt.1) 78, Pacers Multi-Dynamics Ltd. v. The M.V. “Dancing Sister (2012) 1 S.C. (Pt.1) 75 Ors. (2011) 11 – 12 S.C. (Pt.11) 98.
Besides, clause 3(e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 Rules) cited by the respondent states –
“The courts shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi” (my emphasis).
So, even on the strength of clause 3(e) of the 2009 Rules, objection to Fundamental Rights cases on grounds of locus standi is forbidden. Based on the double-barrel reasons (supra), I most respectfully find no substance in the argument that the respondent lacked the locus standi to have brought the action at the court below. I would resolve issue 4 (supra) on locus standi against the appellant and hold that the respondent had the locus standi to bring the action at the court below, as rightly held by the said court. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 31st day of October, 2014
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the Federal High Court sitting at Lagos (the court below) whereby it granted reliefs enforcing the respondent’s fundamental rights against arrest by the appellant and/or the impounding of the respondent’s private vehicle by the appellant.
In outline, the respondent,by an application for the enforcement of his fundamental rights brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, alleged imminent threat to the violation of his right to personal liberty or freedom of movement by the appellant who had issued ultimatum that it would arrest owners of all motor vehicles and impound their vehicles from 01.10.13, if the owners had not complied with the new motor vehicle regulations made by the appellant mandating motor vehicle owners to replace their old number plates with new number plates of enhanced/increased fee specified by the National Road Traffic Regulations 2012 ( Regulations 2012).
Apprehensive of the consequences of the ultimatum, the respondent who at all material times owned a toyota camry model car with registration number plate GT 454 AAA issued on 18.3.13 to expire on 17.3.14 launched the application at the court below to forestall the implementation of the ultimatum on his motor vehicle and himself.
Issues having been joined on the application by the respondent and the appellant, the court below held in its judgment that there was indeed a threat by the appellant to infringe the fundamental rights of the respondent as alleged in the application by the respondent. The court below proceeded to grant the reliefs sought by the respondent in their entirety.
The court below also issued a permanent injunction against the appellant restraining it from arresting the respondent and/or impounding his motor vehicle in question with respect to the issue of the bid by the appellant to enforce the new motor vehicle Regulations 2012. Not satisfied with the judgment of the court below, the appellant filed a notice of appeal bearing six (6) grounds of appeal on 15.04.14. A brief of argument was later filed by the appellant on 05.06.14.
A preliminary objection was raised and argued in the respondent’s brief filed on 9.7.14 against the appellant’s brief of argument to the effect it was signed by senior counsel who described himself as “RESPONDENT’S COUNSEL”, therefore the brief is fundamentally defective and should be struck out on that ground and the appeal dismissed in consequence, as there would be no brief sustaining the appeal vide Order 18 rules 2, 3 (1) and 10 of the Court of Appeal Rules, 2011. (Rules of the Court).
Learned senior counsel for the appellant argued against the preliminary objection in the reply brief that the mistake is typographical and did not mislead the respondent on the identity of the owner of the brief, more so the senior counsel that settled the brief is the same senior counsel that filed the notice of appeal on behalf of the appellant, so the preliminary objection should be overruled for being frivolous citing in support the case of Registered Trustees of Airline Operators of Nigeria v. Nigeria Airspace Management Agency (2004) 8 NWLR 1 at 30 – 31.
In my respectful opinion, the preliminary objection has no substance as the brief itself is headed “APPELLANT’S BRIEF OF ARGUMENT” with the appellant’s name as the appellant and the respondent’s name as the respondent, to which the respondent reacted in his brief of argument, showing the respondent was not misled or prejudiced by what at best is a misnomer or error by the appellant’s brief stating that its learned senior counsel is the respondent’s counsel, which, in my considered opinion, is a pardonable mistake. See Agbule v. Warri Refinery and Petrochemical Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318 at 341 per the Lead judgment of Ogunbiyi, JSC., thus –
“The wrong use of the name did not overreach or put the respondent to any form of disdain … The use of the name in my view, is at best a misnomer and which did not occasion any negative effect. This court under its inherent powers has the jurisdiction to correct such inconsequential error which does not require any formal application to be made.”
See also Afolabi and Ors. v. Adekunle and Anr. (1983) 8 S.C. 98, Teriba v. Adeyemo (2010) 13 NWLR (Pt. 2011) 242 at 264, Kalu v. Odili (1992) 6 SCNJ 76, and Registered Trustees of Airline Operators of Nigeria (supra).
The objection is accordingly overruled. In the result, the words “RESPONDENT’S COUNSEL” appearing on the front cover of the appellant’s brief is hereby corrected to read “APPELLANT’S COUNSEL” -See again Agbule (supra) at pages 341- 342 citing in support the cases of Olu of Warri Esi v. Shell B.P. Petroleum Dev. Coy, Of Nigeria Ltd. (1958) 3 FSC 94 and Maersk Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt.778) 317.
The appellant’s brief of argument formulated these issues for determination;
“1. Whether the trial Court was right when it took judicial notice of publications in the news and electronic media which were not evidence before him and relied on some to reach a finding that the Appellant posed a threat to the Respondent’s fundamental right under section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria? (Ground One of the Notice of Appeal)
2. Whether the learned trial Court was right when it held that the enforcement of the National Road Traffic Regulations, 2012 was a nastily conceived policy without an enabling legal framework?
(Grounds 2 And 3 of the Notice of Appeal)
3. Whether the trial court was right in the light of statutory provisions when it granted an order of injunction against the Appellant. (Grounds 4 of the Notice of Appeal)
4. Whether the trial court was right when it held that the Respondent had locus to bring this action against an alleged threat made to the general public?”
Arguments on issue 1 (supra) attacked the reliance by the court below on an item in a newspaper publication that was not made part of the evidence before it to held that there was an imminent threat by the appellant to infringe the fundamental rights of the respondent which, according to the appellant,there was no proof of the allegation and was also not an issue the court below was entitled to take judicial notice of, therefore the court below was wrong to set up a case different from the case canvassed by the parties and/or the court below was wrong to take judicial notice of newspaper report and that its reliance on personal knowledge of the newspaper publication to establish the respondent’s case without affording the appellant the opportunity to react to it and/or without requiring the parties to put in evidence the newspaper publication was made in error and the said “speculative” holding should be set aside vide Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 at 599, Lekwot v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State (1997) 8 NWLR (Pt.575) 22 at 35, Royal Netherlands Harbour Works and Anr. v. Sama (1991) 2 NWLR (Pt. 171) 64 at 77, Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt. 7297) 581 at 607, Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) All FWLR (Pt. 261) 216 at 234, Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 81, Adegbite v. Ogunfolu (1990) 4 NWLR (Pt. 146) 578 at 590 read with section 122(1) (2) and (4) of the Evidence Act, 2011 (Evidence Act.)
It was argued on issue 2 (supra) that having regard to the fact that the Regulations 2012 came into force on 13.08.12, but were out of the grace of the appellant allowed to commence implementation on 01.10.13, the court below was wrong to hold that the policy was hastily conceived without an enabling legislation when the appellant in exercise of its statutory powers stipulated by Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution) and Section 5 of the Federal Road Safety Commission (Establishment) Act 2007 (2007 Act) which had repealed the National Road Traffic Regulations 2004 in regulations 35, 39, 41 (1) 219 and 230 (1) thereof made it an offence by Regulation 39 (9) of Regulations 2012 to use a motor vehicle without identification number plate as specified by the said Regulations; consequently, it was argued that the court below was in error to question the motive of the law and to hold that the Regulations 2012 had no legal backing and was hastily conceived citing in support Section 4 (1) (2) (3) and (4) of the 1999 Constitution and the cases of Ikine v. Edjerode (2007) 18 NWLR (Pt. 745) 446- 477, Akingbola v. FRN (2012) 1 NWLR (Pt. 1306) 511 at 529, Abubakar v. B.O. and A.P. Ltd. (2007) 18 NWLR (Pt.1066) 19 at 384, Amusa v. State (2003) 4 NWLR (Pt. 811) 595 at 607, Adene v. Dantumbu (1994) 2 NWLR (Pt. 328) 509 at 532, Edet v. Chagon (2008) 2 NWLR (Pt. 1070) 85 at 105, Adamawa State House of Assembly v. Tijani (2012) 8 NWLR (Pt. 1203) 483 at 526, Action Congress v. INEC (2007) All FWLR (Pt. 378) 1012, Obi v. INEC (2007) All FWLR (Pt. 378) 1116 at 1173, Akinlagun v. Oshoboja (2006) 2 NWLR (Pt.993) 60 at 81 read with Sections 36 (12) and 318 of 1999 Constitution and Section 122 (1) and (2) of the Evidence Act, empowering the court below to take judicial notice of any legislation.
The appellant’s brief argued on issue 3 (supra) that having regard to Regulations 36, 39 (9), 41 (2) 219 and 30 (1) of the Regulations 2012 read with Section 5 of the 2007 Act, and Section 36 (12) of the 1999 Constitution which had repealed the National Road Traffic Regulation 2004 and made the failure of a motor vehicle to have on it the redesigned identification number plate specified by Regulations 2012 an offence punishable with a fine of N500 on each day of default read with the cases of Ikine (supra), Edjerode (supra) and Akingbola (supra) the court below was in error to issue an order of permanent injunction against the enforcement of the said validly created Regulations 2012, a subsidiary legislation, when it held that the appellant and its agents, servants, privies were restrained from arresting the respondent and/or impounding his vehicle for using the number plate in question on account of the absence of an offence with penalty prescribed in a written law against use of the said number plate.
It was submitted on issue 4 (supra) that the facts upon which the respondent predicated his case related to matters of public interest affecting all owners of motor vehicles in Nigeria without disclosing the special interest of the respondent over and above the other members of the public and how such interest had been adversely affected by the act or omission of the appellant, therefore the respondent had no locus standi to launch the application at the court below and that the court below was wrong to hold that the issue of locus standi of the respondent was inapplicable to the case vide the cases of RE: Ijelu (1992) 9 NWLR (Pt. 266) 44 at 42 – 432, Keyamo v. L.S.H.A. (2000) 12 NWLR (Pt.680) 196 at 215 – 216, Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt.675) 315 at 345.
The respondent’s brief of argument dated 08.07.14 and filed on 09.07.14 argued in response to the issues for determination in the appellant’s brief without identifying any other issue for determination on the premise that the respondent, (using the words in paragraph 4.2 of the respondent’s unpaginated brief) “finds it extremely difficult to formulate issues for determination from the grounds of appeal and the particulars filed thereto because of their ambiguity, vagueness and imprecise nature”.
The respondent who appeared for himself and drafted the brief answered issue 1 (supra) that the decision of the court below was based on the affidavit evidence before it, not on a newspaper publication; that the appellant’s brief in part B paragraph 2.2 thereof had also conceded the threat to enforce the Regulations 2012 by the appellant and that by Section 124 (f) (a) (b) and (2) of the Evidence Act, the court below could take judicial notice of content of the newspaper publication; and that, at any rate, the decision of the court below would still be the same without the newspaper publication vide Section 251 of the Evidence Act and the case of Alli and Ors.v Alesinloye (2004) 4 S.C. (pt. 1) 111 at 140.
The respondent concluded his response to issue 1 (supra) that no proof of the threat to breach the fundamental rights of the respondent by the appellant was neither raised nor canvassed at the court below and that leave of the Court was not obtained to raise the fresh issue on the appeal which should not be countenanced.
In tackling issue 2 (supra), the respondent contended that the court below merely expressed itself in passing when it stated in its judgment that “the enforcement of the National Road Traffic Regulation 2012 was a hastily conceived policy without an enabling legal framework”, therefore being obiter the appellant cannot attack the part of the said judgment; all the particulars (iv) (v) (vi), in support of grounds 2 and 3 of the appeal are incompetent as they contain fresh issue not raised at the court below and upon which no leave of the Court was sought to raise it vide Nwankwo and Anor. v. Ecumenical Development Co-operation Society (2007) 5 NWLR (Pt.1027) 377, Jov v. Dom (1999) 7 S.C. (Pt. 111) 1.
The respondent also contended that by virtue of Section 230 (2) of Regulations 2012 the repeal of the 2004 Regulations did not affect the respondent’s vehicle number plate procured under the 2004 Regulations, as rightly held by the court below; that, the appellant made Regulations 2012 in virtue of Section 4 of the 1999 Constitution and the offences created under Regulations 36, 39 (9) 41 (2) and 219 of Regulations 2012 are on that account unconstitutional for violating Section 35 (12) of the 1999 Constitution and should be declared null and void under Section 1 (3) of the 1999 Constitution, so contended the respondent.
It was contended by the respondent on issue 3 that the issue as framed by the appellant is meaningless and differs from issue No. 3 in page 4 of the appellant’s brief and is also materially and substantially different in meaning and import from ground 4 of the appeal from which it is “purportedly” formulated, in that ground 4 and its particulars complain about the injunction that restrained the appellant from performing its statutory functions, while the arguments canvassed in support of issue 3 (supra) complained about injunction granted against the appellant restraining it and its agents, servants and privies from arresting the respondent and impounding his vehicle for using the old number plate and that issue 3 (supra) having not flowed from ground 4 of the notice of appeal should be struck out vide the case of Asein and Ors. v. Abraham (2000) 6 S.C. 154.
The respondent argued, in the alternative, on issue 3 (supra), that his vehicle number plate was obtained under the 2004 Regulations which were not “outlawed” by Regulations 2012 vide Regulation 230 (2) of Regulations 2012 and was rightly relied upon by the court below to issue the injunction in question;moreso Regulations 2012 violated Section 36 (12) of the 1999 Constitution and should be struck out for being unconstitutional; and that there was no appeal against the order of declaration, therefore the follow-up order of injunction being a consequential order should not be disturbed.
The respondent attacked issue 4 (supra) on the ground that it is different from the issue 4 in page 22 of the appellant’s brief and does not also flow from the ground of appeal from which it is “purportedly” formulated and that in virtue of Section 3 (e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 under which the respondent brought the application, upon which the court below relied in its decision, the court below was right to hold that the question of locus standi was inapplicable and irrelevant to the case; and that having regard to the respondent’s complaint that the threat by the appellant would have imminent adverse effect on his personal vehicle, the court below was right to hold that the appellant had the locus standi to bring the application at the court below and that the appeal should be dismissed.
The appellant’s reply brief dated 11.08.14 and filed on 18.08.14, but deemed properly filed on 18.08.14, pointed out that issue (1) (supra) flows directly from the findings of the court below in pages 74 – 75 of the record of appeal (the record) which are captured by ground 1 of the notice of appeal upon which issue 1 (supra) is predicated, so the objection to it should be overruled; that the main issue in the application was one for a declaration, the injunctive relief being ancillary and declarations are not granted on admissions, so even if the appellant admitted the threat it would not have availed the respondent vide Okhuorobo v. Aigbe (2002) 9 NWLR (Pt.771) 29 at 54; that the Respondent’s Notice admitted the court below and relied solely on the newspaper report not before it but that the decision be affirmed on other grounds, showing the decision of the court below was based on newspaper report; that paragraph 2.2. of the appellant’s brief did not admit threat by the appellant against the respondent’s personal liberty, nor the right to his car, as the car has no constitutional right.
The reply brief added that the Respondent’s Notice is unhelpful in that in one breath it admitted that the court below acted on newspaper’s report not placed before it to arrive at its decision rightly, in the respondent’s submission, that the appellant threatened to violate the respondent’s fundamental right, while arguments in the respondent’s brief stated in another breath that the court below did not rely on newspaper report to arrive at its decision, thus presenting an inconsistent and contradictory case before the Court vide Bob-Manuel v. Briggs (2003) 5 NWLR (Pt.813) 323 at 339, Anyaduba v. N.R.T. Company Ltd. (1990) 1 NWLR (Pt 127) 397 at 473, Onyekwelu v. Elf Petroleum (Nig.) Ltd. (2009) 5 NWLR (Pt. 1133) 181 at 204 – 214, Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 568 and Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1.
It is also part of the appellant’s arguments in the reply brief that the court below did not afford the appellant the opportunity to react to the newspaper report that was not placed before it but upon its own personal knowledge to reach a decision on the newspaper report without affording the appellant the opportunity to respond to it contrary to Section 124 (3) of the Evidence Act read with the cases of Agbai v. INEC (2008) 74 NWLR (Pt. 1108) 417 at 438, Omorinbola 11 v. Military Governor, Ondo State (1995) 9 NWLR (Pt.48) 2014 (?) at 221 mandating the court below, upon taking judicial notice under Section 124 (1) and (2) of the Evidence Act, to give a party to the proceedings opportunity to make submission in relation to the acquiring or taking into account of information from private source of the court; and that having not complied with Section 124 (3) of the Evidence Act, the court below breached the time honoured requirement that only the special procedure for doing a particular thing prescribed by statute should be followed vide Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt.1330) 523 at 577.
The reply brief further argued that newspaper is a public document by virtue of Section 102 (2) of the Evidence Act, and Section 2 of the National Library Act (Cap. N56) LFN 2004 which must be certified under Sections 89 (e) and 90 (c) of the Evidence Act, before it is admissible in evidence vide the case of Agbai v. INEC (2008) 14 NWLR (Pt.1108) 417 at 438 and cannot therefore be one of the documents the court below could take judicial notice of, under Section 124 (1) (2) of the Evidence Act and that the court below having wrongly relied on the said newspaper report the said decision should be expunged vide Tangale Traditional Council v. Fawu (2011) 17 NWLR (Pt. 742) 293 at 333 – 334, Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 354, Onyekwelu v. ELF (supra) at 200; that without the newspaper report the decision of the court below would crumble and that Section 51 of the Evidence Act and Alli (supra) relied upon by the respondent to save the decision cannot save it.
The reply brief went on to contend that all the objections raised by the respondent in his brief against the argument in issue 2 (supra) and grounds 2 and 3 of the appeal go to no issue as they were not raised in the preliminary objection of the respondent as the issues were not made the respondent’s case at the court below and,also,amount to the conversion of arguments on the merit into preliminary objection by the respondent,moreso the respondent is not entitled to formulate issue(s) outside the grounds of appeal vide Ukiri v. Geco-prakia Nig. Ltd. (2010) 17 NWLR (Pt.1220) 544 at 555 – 556; that grounds 2 and 3 of the notice of appeal derive from the ratio decidendi of the court below in page 75 of the record as well as from the tenor of the decision of the court vide Odugbo v. Abu (2001) 14 NWLR (Pt. 732) 45 at 100, Akpan v. Bob (2010) 17 NWLR (1223) 421 at 464-465; and that the procedure for challenging some grounds of appeal is by way of motion on notice, not by arguments in respondent’s brief, as was wrongly done by the respondent, so the said arguments are incompetent and should be struck out vide Odunukwe v. Afomata (2010) 18 NWLR (Pt. 1225) 404 at 423.
The reply brief went on to contend the issue whether there is an offence created and penalty prescribed thereof by Regulations 2012 was raised/argued by the parties and ruled upon by the court below vide pages 3 -13, 46 – 49 and 72 – 73 of the record and cannot be a fresh issue on the appeal as erroneously contended by the respondent and that the respondent should be limited to the grounds of appeal having not filed a cross-appeal vide Ukiri v. Geco-Prakia Nig. Ltd. (2010) 17 NWLR (Pt.1220) 544 at 555 – 556 therefore the issue of the constitutionality of Regulations 2012 which was not resolved in the decision of the court below cannot be a basis upon which to agitate the issue on the appeal, moreso no leave of the court was obtained to argue it vide Maskala v. Silli (2002) 13 NWLR (Pt. 784) 216 at 226, Registered Trustees of the Airline Operators of Nigeria (supra) at pages 37 – 38, and that, at any rate, Regulations 2012 was properly enacted as subsidiary legislation as argued earlier in the appellant’s brief of argument.
The reply brief reiterated that objections to any of the grounds of appeal could be raised only by way of motion on notice for such an objection to be competent, which is not the case with the respondent’s objections which were made as arguments on the appeal, consequently the said objections should be struck out vide Order 3 rule 15 of the Court of Appeal Rules 2002(?) and the case of Registered Trustees of the Airline Operators of Nigeria (supra); that issue 3 is comprehensible and flows from ground 4 of the notice of appeal as well as issue 4 (supra;); that the grounds of appeal for issues 3 and 4 (supra) being competent, the Court, in order to do justice, may formulate issues or re-formulate issues differently from those formulated by the parties vide Kabirikim v. Emefor (2009) 14 NWLR (Pt.1162) 602 at 642 as 643, A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1 at 31 – 32, Dada v. Dosumu (2006) 18 NWLR (Pt. 1010) 134 at 156, that Section 230 (2) of Regulations 2012 only save administrative acts not the defunct number plates of vehicles issued under the Regulations, so the injunction was improperly issued; that the declaration granted by the court below was challenged in grounds 2 and 3 of the notice of appeal; and that the action of the appellant at the court below was premised on a public right; therefore the appellant did not have the locus standi to bring the action. The reply brief concluded with prayer for the appeal to be allowed and the decision of the court below set aside in consequence.
Some preliminary objections were raised and argued in the respondent’s brief of argument challenging some grounds of appeal, not the entire appeal. As rightly pointed out by the appellant in its reply brief of argument, the respondent is required to file a motion on notice against the alleged offending grounds of appeal which should have been argued in the respondent’s brief and having failed to do so the preliminary objection is incompetent vide the cases of Odunukwe v. Ofomata and Anr, (supra) or (2010 12 S.C. (Pt. 111) 101, Nwaolisah (trading under the name and style of G.B. Vitallis Co. (Nig.) v. Paschal Nwabufoh (trading under the name and style of Paskodi Maritine Agencies (2011) 6 -7 S.C (Pt. 11) 138, Dangana v. Usman and Ors. (2012) 4 S.C. (Pt. 111) 103; Okere v. James (2012) 16 NWLR (pt.1326) 339 at 348 – 349.
The preliminary objection raised and argued in the respondent’s brief against issues 3 and 4 (supra) for being unintelligible and unrelated to the grounds of appeal as well as not arising from the decision of the court below are, upon objective appraisal of the said issues for determination, properly framed and in tandem with the grounds of appeal and the ratio of the court below and comes within the con of the case of Akpan v. Bob (supra) and the other cases cited (supra) on the issue by the appellant in its reply brief.
Having settled the skirmish or preliminary issue, it is apposite to proceed with the determination of the appeal on the issues competently crafted by the appellant, starting with the threshold issue of locus standi raised and canvassed under issue 4 (supra). It is trite that the nature of the claim or the cause of action determines the locus standi of the party bringing the action vide Taiwo v. Adegboro and ors. (2011) 5 S.C. (Pt. 11) 179.
In the present case, the claim or cause of action at the court below states the reliefs sought by the respondent against the appellant in pages 3 – 4 of the record thus-
“1. AN ORDER of the Honourable Court declaring that threatening to arrest or arresting the Applicant and/or impounding his vehicle Toyota Camry Car with Reg. No. GT 454 AAA as from 1/10/2013 or any other date for using a vehicle number plate which is in accordance with Regulation 22(10)(a) of the national Road Traffic Regulations, which is a subsidiary legislation made under the Federal Road Safety Commission Act Laws of the Federation of Nigeria as revised in 2004, without any law validly made in accordance with the 1999 Constitution prohibiting the use of the said vehicle number plate and/or declaring its use an offence and defining the offence and prescribing the penalty thereof in a written law, is a violation and infringement of the Applicant’s fundamental right under Section 3 (12) of the 1999 Constitution of the Federal Republic of Nigeria.
2. AN ORDER of injunction of the Honourable Court restraining the Respondent, its Agents, Servants and privies from arresting the Applicant and/or impounding his said vehicle for using the said vehicle number plate without any law validly made in accordance with the 1999 Constitution of the Federal Republic of Nigeria prohibiting the use of the said vehicle number plate and/or declaring its use an offence and defining the offence and the penalty thereof prescribed in a written law.
3. AND for such further order/orders as the Honourable Court may deem fit to make in the circumstances.
AND TAKE FURTHER NOTICE that on the hearing of this Application, the Applicant will use the affidavit of Mr. Emmanuel A. Ofoegbu and the exhibits therein referred to.”
The grounds upon which the application was brought is stated in page 9 of the record thus –
“THE GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT
1. The Respondent has been threatening in the media to arrest all motorists including the applicant and/or impound their vehicle including the Applicant’s vehicle as from 1/10/2013 or any other date for using vehicle number plates that are in accordance with the National Road Traffic Regulations 2004.
2. The National Road Traffic Regulations, 2012 provides in Regulation 230(2) that the revocation of the 2004 Regulations shall not affect anything done or purported to be done under or pursuant to that regulation.
3. There is no law validly made in accordance with the 1999 Constitution of the Federal Republic of Nigeria prohibiting the use of the said vehicle number plate and/or declaring its use an offence and defining the offence and prescribing the penalty thereof in a written law.
4. As a result of the threat of the Respondent to do as stated above, and if it does as stated above, the Applicant’s fundamental right under Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria is likely to be infringed and violated.”
There is an affidavit in support of the application which deposed to the facts that there were threats by the appellant to arrest the respondent and impound his private or personal vehicle with number plate GT 454 AAA issued on 18-03-13 to expire on 17-03-14 vide page 6 of the record, in the event, a new number plate under Regulations 2012 was not obtained by the respondent which caused the respondent to launch the application at the court below.
Put together the fear of the arrest of the respondent and the fear of the impounding of the respondent’s private vehicle by the appellant brought about the application at the court below. In respect of the issue of the fear of arrest of the respondent by the appellant there is Section 35(1) of the 1999 Constitution which makes personal liberty of a person a fundamental human right under Chapter IV of the same Constitution. The issue of impounding a vehicle which literally means the seizure and/or the taking of legal possession of a vehicle (Chambers 20th Century Dictionary page 657) appears to be the thrust of Section 44(1) of the 1999 Constitution under Chapter IV of the same Constitution which makes the preservation of the sanctity of moveable property such as motor vehicle a fundamental right. These are all species of fundamental rights which were met by the application of the respondent at the court below and which are prima-facie enforceable under the Fundamental Rights (Enforcement Procedure) Rules, (2009 Rules) under which the respondent brought the application at the court below. The application was thus brought to protect the respondent’s personal right to liberty and protection of his private moveable property – a motor vehicle.
In my modest view, it could not have been imagined from the papers in support of the application (supra) that the application was filed to protect public right. For the complaints stated above consummate into the pivotal grouse by the respondent that Section 36 (12) of the 1999 Constitution was not complied with by Regulations 2012, therefore the appellant has no legal framework to enforce Regulations 2012 as they relate to the respondent’s arrest and the impounding of his private motor vehicle. In a situation of this nature, the respondent would have the standi to sue to enforce his fundamental rights in the manner he sued in this case vide Denen Tofi v. Ushe Uba and Anor. (1987) 3 NWLR (Pt.6) 707 at 719 where the Court of Appeal (Jos Division) in treating Section 33 (12) of the Constitution of the Federal Republic of Nigeria 1979, now Section 36 (12) of the 1999 Constitution, held inter alia that –
“For it appears to me a little bit late in the day to argue now that a person could not complain of an infraction of his Fundamental Human Rights provided for by Section 33 (12) of 1979 Constitution until he has been convicted of the offence he is complaining about.”
It should be appreciated that locus standi of a claimant is established by looking at the face of the claim to ascertain whether the claimant’s justiciable civil rights and obligations have been or are likely to be infringed. There must therefore be a link or nexus between the claimant and the disclosed cause of action respecting his legally enforceable rights and obligations; and, in determining locus standi the prospect of the action succeeding is not a relevant factor.
The respondent thus disclosed his sufficient personal interest on the face of the application that his legally enforceable civil rights (fundamental rights in short) of his private moveable property (a motor vehicle) and his imminent arrest by the appellant were in danger which clothed the respondent with the standi to sue the appellant for the enforcement of his fundamental rights. See Attorney-General of Lagos State v. Eko Hotels Ltd. and Anor. (2006) 9 SCNJ 104, Olubodun and Ors. v. Lawal and Ors. (2008) 6 – 7 S.C. (pt.1) page 1, Ojukwu v. Ojukwu and Anor. (2008) 12 S.C. (pt.111) page 7, Pam v. Mohammed (2008) 5 – 6 S.C. (Pt.1) 83, Nyame v. F.R.N. (2010) 3 S.C. (Pt.1) 78, Pacers Multi-Dynamics Ltd. v. The M.V. “Dancing Sister (2012) 1 S.C. (Pt.1) 75 Ors. (2011) 11 – 12 S.C. (Pt.11) 98.
Besides, clause 3(e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 Rules) cited by the respondent states –
“The courts shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi” (my emphasis).
So, even on the strength of clause 3(e) of the 2009 Rules, objection to Fundamental Rights cases on grounds of locus standi is forbidden. Based on the double-barrel reasons (supra), I most respectfully find no substance in the argument that the respondent lacked the locus standi to have brought the action at the court below. I would resolve issue 4 (supra) on locus standi against the appellant and hold that the respondent had the locus standi to bring the action at the court below, as rightly held by the said court.
Having disposed of the threshold issue of locus standi in favour of the respondent, I find it appropriate to proceed to discuss the remaining issues chronologically. Indeed the court below relied on a newspaper report not put in evidence before it to hold that the appellant had threatened to arrest erring motorists and impound their vehicles if they did not comply with the new policy on re-designed number plates for vehicles within stipulated period of time whereby the court below held that the appellant was in breach of the respondent’s fundamental rights and granted the respondent the reliefs sought by him in the application.
The court below justified its position by stating that it took judicial notice of the newspaper report. The appellant contended that it was wrong for the court below to suo motu take judicial notice of the newspaper report without affording the parties the opportunity to react to it. I agree with the appellant’s submission. In as much as the innovative Section 124 (1) and (2) of the Evidence Act permits a court to acquire knowledge from other sources, like newspaper report or the internet, not available to the parties before it, in the event the court decided to use the knowledge so acquired, it is bound by Section 124(3) of the Evidence Act cited by the appellant to refer the parties to the relevant information for their input, if any, before utilising the researched information for resolution of the dispute before it. For convenience Section 124(3) of the Evidence Act provides –
“The court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as its necessary to ensure that the party is not unfairly prejudiced”.
The court below was accordingly in error by its failure to make available in evidence the newspaper information it had read that was relevant to the dispute before it to the appellant for its reaction before making use of the information for the case before it.
Much was debated upon whether a newspaper is a public document. In Rozen Investment Ltd. v. N.D.I.C. (2007) All FWLR (Pt.449) 594 at 607 – 608, the Court held that a newspaper is a private document. But in the later case of Agbai v. INEC (2009) All FWLR (Pt.449) 594 at 607 – 608 the Court without referring to Rozen Investment Ltd. (supra) held that newspaper is a public document. In such scenario the case that is later in time prevails. See Osakwe v. F.C.E. Asaba (2010) 10 NWLR (Pt.1201) 1 at 36 to the effect that a court faced with its own conflicting decisions or conflicting decisions binding on it has the option to follow the decision later in time. Consequently, I follow Agbai (supra) cited by the appellant to hold that newspaper is a public document.
I have looked at Section 122 of the Evidence Act vis-a-vis Section 124 thereof and realise that whereas the former is explicit on the items the court may take judicial notice of the latter does not mention the phrase ‘Judicial notice’ but confines itself to knowledge of facts or information acquired from other sources by the court. The two sections are therefore not on the same theme of judicial notice. Section 124 of the Evidence Act which is an improvement on the Law of Evidence accepts the ability of well informed spirited /adventurous Judges who access the internet and other sources of information outside the legal profession to use such researched private information in resolving disputes before them subject, however, to giving the parties a hearing on it. Thus in the English case of Borthwick v. Vickers (1973) Crim, L. R.317, cited in the standard works by Mr. S.T. Hon, SAN, titled: S.T.HON’S Law of Evidence in Nigeria page 1420, the Court held that a magistrate was right to use his private knowledge to resolve the complaint before him that a certain journey must have involved the driver driving through some public highway.
On the other hand, Section 122 of the Evidence Act is on judicial notice of the items specified by it which does not include a newspaper report. Section 124 thereof does not refer to the preceding Section 122 of the same Act, nor does it mention the phrase “judicial notice” as to marry the two sections together on the topic of judicial notice. Had a newspaper been included among the catalogue of items a court could take judicial notice of, then it would be unnecessary to call on the parties to address the court on it upon the court taking judicial notice of the newspaper report vide the case of Omokuwajo v. F.R.N. (2013) 9 NWLR (Pt.1359) 300 at 332 per the judgment of His Lordship, Rhodes-Vivour, J.S.C., thus –
‘The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
“(a) …..
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. see section 73 of the Evidence Act
(c) …..”
See also Finnih v. Imade (1992) 1 NWLR (Pt.219) 511.
Be that as it may, the bottom-line is that the newspaper item in question was not formally put in evidence, nor was the appellant given the opportunity by the court below to address it on the document, therefore the court below should not have used it vide Lekwot (supra) cited by the appellant and Umar v. Bayero University Kano (1988) 4 NWLR (Pt.86) 85 at 93, Abacha v. Fawehinmi (2000) 4 S.C. (Pt.11) page 1 and Onibudo and Ors. v. Akibu and Ors. (1982) 13 N.S.C.C. 199.
The matter would have ended here. But upon close perusal of the record it is manifested that the court below did not rely on the newspaper item alone to arrive at its decision in the matter. At page 74 of the record the court below stated inter alia that it “also” took judicial notice of the newspaper report. The phrase “also” means “in addition” (Oxford Advanced Learner’s Dictionary, 7th Edition, page 41)
So, the court below used the newspaper item in addition to what was before it to arrive at its decision in the case. And what was before the court below without reference to the newspaper item is the affidavit verifying the facts of the application in page 5 of the record. For convenience I copy it below-
“AFFIDAVIT VERIFYING THE FACTS
I, EMMANUEL OFOEGBU, Male, Christian, Legal Practitioner, Nigerian of 356, Murtala Mohammed Way, Yaba, Lagos State do make Oath and state as follows:-
1. That I am the Applicant in the above suit.
2. That I am the owner of the Toyota Camry Car with Registration No. GT 454 AAA. Shown and marked as Exhibit ‘A’ is the vehicle licence of the said vehicle.
3. That the Respondent has been threatening to arrest me and/or impound the said vehicle as from 1/10/2013 or any other date for using the vehicle plate number that is in accordance with the National Road Traffic Regulation 2004. Shown and marked as Exhibit ‘B’ is the vehicle plate number.
4. That National Road Traffic Registration 2012 expressly provides in Regulation 230(2) that the revocation of the Regulation 2004 shall not affect anything done or purported to be done under or pursuant to that regulation.
5. That there is no law validly made in accordance with the 1999 Constitution prohibiting the use of the said vehicle number plate and/or declaring its use an offence and defining the offence and prescribing the penalty thereof in a written law.
6. That I make this affidavit in good faith believing same to be true and correct in accordance with Oath’s act.”
There was thus evidence in form of affidavit in support of the application and by extension the decision of the court below on the point. See Jack v. University of Agriculture Makurdi (2004) 5 NWLR (Pt.865) 208 at 227 to the effect that affidavit is evidence in Fundamental Rights cases; and Magnusson v. Koiki (1993) 12 S.C.N.J. 14.
Accordingly, discarding the newspaper report, which I hereby do, the decision of the court below that the respondent proved his case can still stand, as the decision could have been the same based on the said affidavit evidence vide section 251(1) of the Evidence Act (supra) and Alli (supra) cited by the respondent considered along with the cases of Ojengbede v. Esan (2002) FWLR (pt.90) 7406, State v. Ogbubunjo (2001) FWLR (pt.37) page 1097. Based on the Respondent’s Notice I sustain the said decision of the court below that the respondent established by affidavit evidence that his fundamental rights were in imminent threat of infringement by the appellant. Issue 1 (supra) is accordingly resolved against the appellant.
The crux of the arguments on issue 2 (supra) centres on whether the appellant had the statutory powers to make the Regulations 2012. The respondent placed reliance on Section 4 of the 1999 Constitution to urge that Regulations 2012 being a Federal Subsidiary Legislation, only the National Assembly can validly enact it. True, the National Assembly has powers to enact Federal Laws in virtue of Section 4 of the 1999 Constitution cited by the respondent. It is also on the strength of Section 4 of the 1999 Constitution that the National Assembly enacted the Federal Road Safety Commission (Establishment) Act 2007 (or 2007 Act) to replace the Federal Road Safety Commission (Establishment) Act, 2004.
Section 10 (2) (d) and (f) of the 2007 Act provides –
“The corps shall discharge functions relating generally to –
(d) designing and producing the driver’s license to be used by various categories of vehicle operators;
(f) designing and producing vehicle plate identification numbers and controlling the use of speed limit devices …” (My emphasis)
There is also Section 5 of the 2007 Act empowering the appellant to make regulations for the carrying out of the objectives of the 2007 Act, such as the items mentioned in Section 11(2)(d) and (f) of the 2007 Act (supra) and the other items enumerated in Section 5 of the same Act. For emphasis, Section 5 (g) thereof provides –
“5. The commission may make regulations generally for the carrying out of the objectives of this Act and, in particular, may make regulations regulating to –
(g) designing and producing driver’s license and vehicle number plates to be used by various categories of vehicles.” (My emphasis).
It follows that by Section 5 of the 2007 Act, the National Assembly has delegated its powers to make regulations for the carrying out of the objectives of the 2007 Act to the appellant. The fact that the powers are delegated puts the appellant in the shoes of the National Assembly without necessarily denuding the legislative powers of the National Assembly. The appellant is merely the mouth-piece of the National Assembly in the exercise of the said delegated powers on behalf of the National Assembly vide the case of Anakwenze v. Aneke and Ors. (1985) 1 NWLR (Pt.4) 771 at 778 thus –
“In Hush v. Clarke (1890) 25 Q.B.D. 391 the following observation which appears to be apposite, was made by Lord Coleridge C.J. at P.394 -” The word “delegation” implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating…”.”
So, the National Assembly by the 2007 Act with emphasis on section 5 thereof read with Section 11 of the same Act vested the appellant with the statutory powers to make regulations for the implementation of the objectives of the 2007 Act.
Although the 2007 Act does not define the phrase “regulation”, its meaning of bylaw or rule/order having legal force assigned to it by Black’s Law Dictionary (Eighth Edition) page 1311 is appropriate. See also Section 37 of the Interpretation Act Cap.123 Laws of the Federation, 2004, which defines a subsidiary instrument to be an enactment embracing regulations or bylaws. Similarly, Section 318 of the 1999 Constitution defines “enactment” to include subsidiary instrument.
The net consequence is that the Regulations 2012 made by the appellant pursuant to Section 5 of the 2007 Act are backed with legal framework and possess the force of law. The fact that Regulations 2012 was made on Christmas Day, a public holiday, does not devalue or diminish its legal efficacy, as public work done on public holiday to meet the exigency of the moment is considered prima facie proper, in my view. See Anie v. Uzorka (1993) 9 S.C.N.J. 223 or (1993) 8 NWLR (Pt. 309) page 1. The court below therefore erred in holding that Regulations 2012 was made without legal or statutory backing.
Section 36(12) of the 1999 Constitution provides that a person shall not be convicted of a criminal offence unless the offence is defined and the penalty thereof is prescribed in a written law, such as an Act of the National Assembly, a law of a State and any subsidiary legislation or instrument made under the provisions of a law. The next step to ascertain is whether Regulations 36, 37(1), (2) (a) and (4), 39 (1) (2) (a) and (9) and 41(2) of the Regulations 2012 meet the constitutional requirement of Section 36(12) of the 1999 Constitution (supra). For convenience a cluster of the relevant regulations are copied below –
“36. All private and commercial vehicles shall as from the commencement of these Regulations have on them Vehicle identification Number Plates which shall -(a) Be carried by the motor vehicle on two plates which shall conform to the requirements of these Regulations; and
(b)The number plate shall be fixed –
i. In such a manner that each is not easily detachable; and
ii. In an upright position or within 15 degrees of such position.
37. – (1) The Identification Number Plates carried by a motor vehicle or articulated vehicle shall be displayed on two plates for a motor vehicle and three plates for an articulated vehicle and shall conform as to lettering, numbering and otherwise with the provisions set out in figures 1 – 11 of Schedule 5 to these Regulations.
(2) The number plates shall in respect of –
(a) a motor vehicle be fixed, one on the front of the vehicle and the other at the centre or on the offside of the rear of the vehicle or as may be provided by the manufacturer:
(4) Each Identification Number Plate must be reflective and so made that any letter, numeral or other identifying mark displayed on it are legible at day time and at night in clear weather and must be visible and recognizable at a distance of not less than 60 metres by the driver of the immediate following vehicle in the case of motorcycle at a distance of 30 meters.
39. – The form of Identification Number Plates referred to in sub-regulation (1) of this regulation shall be rectangular with dimensions of 30 .80cm (12.125) by 15.56cm (6.125) for vehicles and 22.0cm (9″) by 10.2cm (4″) using 1 inch (2.54) for motorcycles both with white background as shown in figures 1 and 2 in Schedule 5 of these Regulations.
(2) Private Number Plates shall-
(a) have the name of the State in black, the licensing office code number, the vehicle registration number and Local Government code number in blue:
(9) All vehicles, private and commercial, shall as from the commencement of these Regulations, have on them the vehicle Identification Number Plates referred to in this regulation and it shall be an offence for any vehicle not to have the said Identification Number Plates. (My emphasis).
41(2) A person who commits an offence under this Part shall where no penalty is provided be liable on conviction for a fine of N500 for every day the offence is committed”. (My emphasis).
See also regulation 219 thereof.
It is clear from corporate interpretation of the pieces of Regulations 2012 (supra) that they define the offence and prescribe penalty for offenders as product of subsidiary instrument or legislation duly having the force of law or legal efficacy as stated earlier in the discussion. The pieces of Regulations 2012 in question thus comply with the constitutional requirement of an offence defined in a written law with penalty prescribed thereof within the con of Section 36(12) of the 1999 Constitution.
The respondent’s submission that Regulations 2012 violates Section 36(12) of the 1999 Constitution is, in my modest opinion, untenable. I resolve issue 2 (supra) in favour of the appellant to the effect that the Regulations 2012 is constitutional and was properly and legally made by the appellant and possesses the full force of law, as it provides written authority for the punishment of offences recognised by Regulations 2012 which acquired legal validity or source from section 5 of the 2007 Act, the parent law, as subsidiary legislation. See Denen Tofi v. Ushe Uba and Anor. (supra) at 718. Issue 3 (supra) relates in part to the ancillary or consequential order of injunction issued by the court below. The tail-piece of the decision of the court below held in pages 75 -76 of the record that –
“Finally, I hold that the threats by the Respondent to impound vehicles of defaulters, inclusive of the Applicant over the redesigned vehicle number plates, when the plates in use so far have not been outlawed, amounts to an attempt at arbitrary use of power, which must be deprecated.
In the circumstances, it is my respectful view that the Applicant is entitled to an order of injunction against the Respondent.
Consequently, Reliefs 1 and 2 sought by the Applicant in his originating application dated 25 September, 2013 are granted”.
(My emphasis).
Reliefs 1 and 2 were copied earlier in the judgment. Looking at the said reliefs dispassionately, they do not affect the public at large or the whole world. The reliefs granted are confined to the respondent: The court below granted exactly what was requested by the respondent for himself only. No more no less. It made its decision so clear on the issue in the underlined portion of its decision (supra) that it granted reliefs 1 and 2 to the respondent, not to members of the public at large. In my respectful opinion, at the end of the day, the court below confined its decision to the reliefs (supra) sought by the respondent in the application, which it granted. There is thus no substance in the argument that the court below granted an injunction to benefit the public at large, when in reality the injunction it issued benefits only the respondent.
The other consideration is whether the injunction was properly issued.
Regulation 230(1) and (2) of Regulations 2012 preserved the National Road Traffic 2004 Regulations in these words –
“230 – (1) The National Rood Traffic Regulations, 2004 is hereby revoked.
(2) The revocation of the Regulations specified in sub-regulation (1) of this regulation shall not affect anything done or purported to be done under or pursuant to that regulation.”
The draftsman is deemed not to contradict himself. So, the prior regulation 225 of Regulations 2012 will be construed to avoid collision with regulation 230 (2) thereof.
See Maxwell on The Interpretation of Statutes (Twelfth Edition) page 187. For ease of reference Regulation 225 of Regulations 2012 provides –
“225. Where any of the provisions of any other Road Traffic Regulations existing in any State of the Federation and the Federal Capital Territory, is inconsistent with the provisions of these Regulations, the provisions of those Regulations shall to the extent of the inconsistency prevail and the provisions of that other Regulations shall be null and void.”
Regulation 225 (supra) thus deals with other enactments made by the Federal Capital Territory and the States of the Federation that are in conflict with Regulations 2012, which must give way to Regulations 2012; while regulation 230 (2) thereof preserves all acts done or purported to be done under the repealed 2004 Regulations. The said preservation is, however, not for eternity. It is limited to the lifespan of the acts done or purported to be done under the 2004 Regulations.
The effect of Regulation 230(2) (supra) is that all acts done under the 2004 Regulations would remain valid until the time-frame or lifespan of the acts expire or is spent. Section 4(2)(c) of the Interpretation Act also states in similar vein that the repeal of an enactment or law would not affect the subsidiary instrument made under it, unless there is inconsistency of the subsidiary instrument with the substituted enactment. Section 6(1)(b) and (c) of the Interpretation Act further provides that the repeal of an enactment shall not affect anything duly done or any right or privilege acquired under the repealed enactment. See also the cases of Agbetoba and Ors. v. The Lagos State Executive Council (1991) 6 SCNJ page 1, Abubakar v. Bebeji Oil and Allied Products Ltd. and Anor. (2007) 2 SCNJ 170, Osadebay v. Attorney General, Bendel State (1991) 1 SCNJ 162 and Emelogu v. The State (1988) 1 N.S.C.C. (Vol.19) 869 at 897, to the same effect.
Page 6 of the record contains evidence of the vehicle licence of the respondent’s private car issued on 18-03-13 to expire on 17-03-14. Section 5(g) of the 2007 Act empowers the appellant to make regulations to cover inter alia the registration and licensing of vehicles. The respondent having obtained a valid number plate before the commencement of the litigation at the court below and, with the coming into force of Regulations 2012 delayed or postponed by the appellant from 13-08-12 to 01-10-13 to sensitise members of the public as stated in page 9 paragraph 4.41 of the appellant’s brief of argument before the deadline for the implementation of Regulations 2012, the said number plate was valid and remained valid up to its expiry date on 17-03-14.
Consequently, the repeal of the 2004 Regulations did not affect the validity of the number plate of the respondent’s private vehicle vide regulation 230(2) of the Regulations 2012 read with sections 4(2)(c) and 6(1)(b) and (c) of the Interpretation Act and the cases of Agbetola (supra), Abubakar (supra), Osadebay (supra) and Emelogu (supra).
The court below was thus right to issue the injunction to protect the respondent’s right to the enjoyment of the number plate of his private vehicle issued on 18-03-13 to expire on 17-03-14. I resolve issue 3 (supra) in the respondent’s favour with a rider that the consequential order of injunction granted by the court below was tied to the lifespan of the number plate of the respondent’s private vehicle which expired on 17-03-14.
I would allow the appeal in part. For the avoidance of doubt, the appeal succeeds only in part to the effect that Regulations 2012 has legal force and is enforceable from 01-10-13, the administrative date assigned to it by the appellant.
The part of the decision of the court below declaring Regulations 2012 unconstitutional and without back-up legal framework is hereby set aside. The injunction properly issued by the court below at the material time which has, however, been caught by lapse of time is for practical purposes presently spent and is hereby dissolved. Parties to bear their costs. I venture to observe that had the court below the benefit of the exhaustive arguments available on the appeal, its decision might have been the same as the one reached on the appeal.
UZO. I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother J. S. Ikyegh, J.C.A. He has dealt with the issues therein comprehensively. I have nothing more to add. I also abide by all the consequential orders in the lead judgment and adopt them as mine.
JAMILU YAMMAMA TUKUR, J.C.A.: I have had a preview of the judgment delivered by my learned brother Joseph Shagbaor Ikyegh J.C.A.
My lord has comprehensively dealt with all the issues and I have nothing useful to add. I also allow the appeal in part and abide by the consequential orders contained in the lead judgment including that as to costs.
Appearances
Dr. A. Izinyon, SAN (with Messrs. C. S. Ekeocha and S. Ichukwu)For Appellant
AND
Respondent appeared in person.For Respondent
