ANTHONY ESEKHAIGBE v. FEDERAL ROAD SAFETY COMMISSION
(2014)LCN/7575(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of November, 2014
CA/I/150/2008
RATIO
APPEAL;ISSUES FOR DETERMINE; WHETHER ISSUES FOR DETERMINATION SHOULD BE BASED ON THE GROUNDS OF APPEAL DULY FILED
It is the law that issues for determination as well as arguments in an appeal should be based on the grounds of appeal duly filed. Consequently, any part of a brief of argument which does not arise directly from any of the grounds of appeal is incompetent. See Oje v. Babalola (1991) 4 NWLR part 185 p.267. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE
It is the law that documentary evidence is the best evidence. See Egharerba vs. Osagie (2009) 18 NWLR (Pt.1173) p.299. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: ORAL AND DOCUMENTARY EVIDENCE; WHETHER NO ORAL EVIDENCE WILL BE ALLOWED TO DISCREDIT OR CONTRADICT THE CONTENTS OF A DOCUMENT AND THE EXCEPTION
It is the law that no oral evidence will be allowed to discredit or contradict the contents of a document except where fraud is pleaded. See Egharerba vs. Osagie (supra). per. OBIETONBARA DANIEL-KALIO, J.C.A.
COURT; EVALUATION OF EVIDENCE; WHETHER AN APPELLATE COURT IS IN AS GOOD A POSITION AS THE TRIAL COURT TO EVALUATE EVIDENCE GIVEN AND COME TO A PROPER DECISION
The evidence evaluated by the trial judge has nothing to do with the credibility of witness and therefore this court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision. See Afolayan vs. Ogunrinde (1990) NWLR (Pt.127) p.369 also reported in (1990) 2 SC 70. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EQUITABLE RELIEF; RELIEF OR REMEDY PROVIDED BY A WRITTEN LAW; WHETHER A RELIEF OR REMEDY PROVIDED FOR BY A WRITTEN LAW WHEN CLAIMED CANNOT BE DENIED
It has long been established in the case of Falobi v. Falobi (1976) NMLR Vol.1 p.69 that where a relief or remedy is provided for by a written law, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law. per. OBIETONBARA DANIEL-KALIO, J.C.A.
Before Their Lordships
OBIETONBARA DANIEL-KALIOJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
NONYEREM OKORONKWOJustice of The Court of Appeal of Nigeria
Between
ANTHONY ESEKHAIGBEAppellant(s)
AND
FEDERAL ROAD SAFETY COMMISSIONRespondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the judgment of the Lower Court in respect of the appellant’s bus which was impounded by the Respondent. In the appellant’s Statement of Claim before the Lower Court he alleged that his Ford Transit Bus with Registration Number BG 502 MUS was impounded by some officers and men of the Respondent along Idiroko Road after Atan Town in Ogun State on the grounds that he had an expired driver’s license and was using a blue coloured plate number not meant to be used for passenger carrying vehicles.
In the course of the bus being impounded, the appellant claimed that the bus was damaged. He also pleaded that consequent on the impounding of the vehicle,his business collapsed, he was given notice to quit the premises he used for his factory and his children were withdrawn from school due to lack of funds to pay their school fees.
He therefore sought from the Lower Court a declaratory relief that the seizure of his bus was unlawful,illegal, null and void. He also claimed special and general damages. In the alternative, he prayed the Lower Court for the sum of N2 million as general damages for the wrongful detention/conversion of his bus.
After hearing the case presented by both parties the learned trial judge came to the conclusion that there was no evidence to support, the claim that the appellant’s bus was unlawfully or wrongfully seized. He also found no evidence that the appellant was improperly deprived of the use of his bus. He therefore refused to grant any of the appellant’s reliefs. He felt satisfied to dismiss the appellant’s claim in their entirety and did so.
Dissatisfied with the judgment, which judgment was delivered on 31/10/2007, the appellant on 31/1/2008 filed a Notice of Appeal. In it, he gave the following six grounds on which the judgment of the Lower Court can be faulted.
1. The learned trial judge erred in law when he held at page 19 of the judgment as follows:
“Under S.3 of the National Road Traffic Regulations a staff bus is not registered the same way as a vehicle carrying goods and staff. And a vehicle carrying goods and staff is registered as a commercial vehicle under S.3(g) while a staff bus is registered under S.3(k) and described as a “private omnibus used for the free conveyance of employees, Therefore is created confusion with the documents presented by, the plaintiff. These inconsistencies were never resolved.
A careful study of the Regulations pertaining to Hackney/Stage carriage license particularly Regulations 39 & 40 of the National Road Traffic Regulations 2004 shows clearly that a Hackney/Stage carriage license is issued to commercial vehicles and for the vehicles to be used for a private purpose.
2. The learned trial judge erred in law when he held at pages 24 and 25 of the judgment as follows:
“Having carefully gone through the Federal Road Safety Commission Act (Cap.141) as amended, I am in no doubt that the defendant is empowered amongst other deterrent to impound any vehicle by which an offence under the Act is reasonably suspected to have been committed. The defendants therefore did not act ultra vires its powers when it impounded plaintiff’s vehicle on the 11th of December, 2003.”
3. The learned trial judge erred in law when he held at page 24 of the judgment as follows:
“The Laws of the Federation 2004 was passed into law by the National Assembly on the 24th, of May, 2007 the same day it repealed the 1990 Laws of the Federation Act. This was with no retroactive effect. It meant that as at the time the cause of action arose on the 11th of December, 2003 and this action was filed on the 25th of April, 2004, Laws of Federation 2004 had not come into operation and could therefore not be applied to this case”.
4. The learned trial judge erred in law when he held at page 24 of the judgment that the Laws of the Federation 2004 court not be applied to this case and upon that holding retried on S.11(5) (h) (sic) of the Federal Road Safety Act 141 LFN 1990 to hold that the defendant had power to impound the vehicle of the plaintiff.
5. The learned trial judge erred in law when he held at page 26 of the judgment as follows:
“In the circumstance I also find the claim for special and general damages not established, I therefore make no declarations in respect of any of the reliefs.”
6. The judgment is against the weight of evidence.
I do not consider it necessary to state in this judgment, the particulars of error detailed under each ground of appeal. In any case the sixth ground of appeal which is an omnibus ground, did not as is normally the case, have any particulars of error.
The Appellant’s Brief of Argument was settled by Olumide Akinimi who also adopted and relied on it when the appeal was argued on 18/9/14. The Brief of Argument was filed on 16/10/08 but deemed pursuant to an order of this court, as having been property filed and served on 14/1/2009. Appellant’s learned counsel distilled four issues for determination in the appeal. They are –
1. Whether the appellant’s Ford Transit Bus was registered or being used as a commercial vehicle. (This issue is based on ground 1 of the grounds of appeal.)
2. Whether the respondent acted ultra-vires its powers when it impounded the appellant’s vehicle on the 11th of December 2003. (This issue is based on ground 2 of the grounds of appeal.)
3. Whether the Federal Road safety commission Act Cap F 19 Laws of the Federation 2007 is applicable in this case. (This ground is distilled from grounds 3 and 4 of the grounds of appeal);
4. Whether the learned trial judge is not enjoined by law to assess damages whether or not the claim of the plaintiff succeeds (No ground of appeal was identified as being the basis of this issue).
It is the law that issues for determination as well as arguments in an appeal should be based on the grounds of appeal duly filed. Consequently, any part of a brief of argument which does not arise directly from any of the grounds of appeal is incompetent. See Oje v. Babalola (1991) 4 NWLR part 185 p.267. Since issue 4 above does not arise from any of the grounds of appeal, no argument can be urged in respect of it. The said issue 4 is incompetent and is hereby disregarded. That leaves only three competent issues formulated by the appellant.
The Respondent in the Brief settled by Mazi Afan Osigwe but which was adopted and relied upon during the argument of the appeal by Babatunde Adewusi identified three issues for determination. They are-
1. Whether the court had jurisdiction to entertain the matter.
2. Whether the appellant led credible evidence to show that he had any interest in the vehicle the subject matter of this appeal; and
3. Whether on the evidence on record the trial court was right in not granting the reliefs sought by the appellant.
It seems to me that with the possible exception of the respondent’s issue 3, the issues for determination formulated by the Respondent are not traceable to any of the grounds of appeal. The respondent did not file a cross-appeal. It therefore had to adhere to the grounds of appeal in the Notice of Appeal of the appellant in formulating its own issues for determination.
As stated by the Supreme Court in Shell Petroleum Development Company Nigeria Ltd. v. Chief Edamkue & Ors (2009) 14 NWLR part 1160 p.1 at 23 it is now firmly settled that the general rule is that an issue or issues for determination must relate to or be derived from a ground or ground’s of appeal otherwise, it they will be incompetent and must therefore be discountenanced or struck out. See also Alhaji Animashaun vs. University College Hospital (1996) 12 SCNJ 179 at 184; Chief Agbaisi & Ors vs. Ebikorete & Ors (1997) 4 NWLR part 502 p.630; Biocon Agro Chemicals (Nig.) Ltd. & 3 Ors vs. Kadu Holding (Pvy) Ltd. & Anor (2000) 12 SCNJ 272 at 285. I will therefore discountenance issues 1 and 2 formulated by the Respondent.
On issue 1, which is whether the appellant Ford Transit Bus was registered or was being used as a commercial vehicle, learned counsel referred to the evidence of the appellant (Pw1 in the Lower Court) and submitted that his evidence showed that his Ford Transit Bus was never used for commercial purposes’ Learned counsel referred to Exhibits C, F, L and M tendered by the appellant as PW1. He drew particular attention to Exhibit M the Certificate of Road worthiness and submitted that it stated that the vehicle was not for commercial purpose, taxi, stage carriage or omnibus service. The appellant’s bus he contended was stated in the said Exhibit as a staff bus. Learned counsel contended that the Lower Court was in error when it held that the appellant’s vehicle was rightly impounded.
Learned Counsel referred to, Regulation 4 (Registration) of the National Road Traffic Regulation Cap F19 under the Federal Road Safety Commission Act, Laws of the Federation. He also referred to the definition of commercial vehicle in Regulation 116 0f the National Road Traffic Regulation and submitted that there is nothing before the Lower Court to support its position than the appellant’s vehicle was registered as a commercial vehicle. It was submitted that there is nothing in Regulation 3 of the National Road Traffic Regulation that states that a staff bus cannot be used to carry goods. It was also submitted that there is nowhere under Section 4 of the National Road Traffic Regulations, where it is provided that a vehicle carrying goods and staff should be registered as a commercial vehicle. It was further submitted that regulations 39 and 40 of the National Road Traffic Regulations 2004 do not apply to the appellant’s vehicle because appellant’s vehicle ‘is a private bus’ which is sometimes used to convey the appellant’s staff and goods. Learned counsel referred to category J under Regulation 4(1) of the National Road Traffic Regulations 2004 and submitted that a vehicle registered under that category is not precluded from carrying goods that belong to the owner. Learned counsel further submitted that Regulation 39 of the National Road Traffic regulation 2004 applies only to stage carriage and omnibus which though primarily registered as commercial vehicles, were being used as private vehicles.
Learned counsel urged us to resolve the issue in favour of the appellant.
The Respondent in its reply did not address issue 1 formulated by the appellant’s counsel and instead directed its efforts at its issue 1 which as earlier pointed out, has no roots in the grounds of appeal.
I consider it necessary to reproduce here the reasoning of the trial judge in his evaluation of the evidence before him.
“Exhibit C is the Vehicle License endorsed as private. Exhibit F is a Hackney/Stage Carriage License issued to commercial vehicles. Exhibit L the Certificate of Insurance is also endorsed “PRIVATE”. Exhibit M, Certificate of Road Worthiness is endorsed Staff Bus”.
Under Section 3 of the National Road Traffic Regulation a staff bus is not registered the same way as a vehicle carrying goods and staff, A vehicle carrying goods and staff is registered as a commercial vehicle under Section 3(g) while a staff bus is registered under Section 3(u) and described as a “Private Omnibus used for the free conveyance of employees”.
Therefore is created confusion with the documents presented by the plaintiff. The defendant had given evidence that the Hackney/Stage Carriage license is only issued to commercial vehicles. There was no rebuttal to this evidence. The court will therefore accept the evidence and act on same.”
I have carefully looked at Exhibits C, F, L and M referred to by the trial judge and I do not share the view that the documents cause any confusion or are inconsistent. They all show that the vehicle is not for commercial use. Exhibit C, a vehicle license, has clearly printed on it the words: “PRIVATE CAR”. Exhibit F the Hackney\Stage Carriage license shows that the vehicle is registered as a Hackney\State carrier and is licensed to carry “Goods and Employees”. Exhibit L the Certificate of Insurance shows that the vehicle is for “PRIVATE USE ONLY” and Exhibit M the Certificate of Road Worthiness has “staff Bus” stamped on it and has on its face every possible commercial use listed therein crossed out.
It is the law that documentary evidence is the best evidence. See Egharerba vs. Osagie (2009) 18 NWLR (Pt.1173) p.299. The Learned trial judge in my humble view was wrong to have relied on the oral evidence of the defendant that a Hackney\Stage License is only issued to commercial vehicle when Exhibit F (the Hackney\Stage Carriage License) did not state so.
It is the law that no oral evidence will be allowed to discredit or contradict the contents of a document except where fraud is pleaded. See Egharerba vs. Osagie (supra).
The trial judge also considered Regulations 39 & 40 of the National Road Traffic Regulations 2004 and held that the Regulations show that a Hackney\Stage Carriage license is issued to commercial vehicles and that for such a vehicle to be used for a private purpose it must be clearly marked “PRIVATE” on the rear and front area. The learned trial judge in my humble view misconstrued the provision of Regulation 39 of the National Road Traffic Regulation 2004. The Regulation provides:
“Where any stage carriage or omnibus licensed to ply for, hire is hired by any person for use exclusively for any particular purpose such stage carriage or omnibus shall carry in a conspicuous place on the front and rear thereof a sign marked *PRIVATE, in bold letters”.
There is nothing in the above provision that states or suggests that a Hackney\Stage Carriage License is issued for commercial vehicles only.
The evidence evaluated by the trial judge has nothing to do with the credibility of witness and therefore this court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision. See Afolayan vs. Ogunrinde (1990) NWLR (Pt.127) p.369 also reported in (1990) 2 SC 70. I find that upon a proper evaluation of the evidence the proper conclusion is that the appellant established that the bus was a private vehicle. Issue 1 is resolved in the appellant’s favour.
I now turn to issue 2 which is whether the respondent acted ultra-vires its powers when it impounded the appellant’s vehicle on the 11th of December 2003.
On this issue, appellant’s counsel referred to the judgment of the trial judge at page 181-182 of the Record of Appeal where the learned trial judge held that the respondent is empowered to impound any vehicle by
which an offence under the Act is reasonably suspected to have been committed. We were referred to Section 11(5) of the Federal Road Safety Act Cap.141 Laws of the Federation, 1990 relied on by the learned trial judge and urged that the provision did not empower the respondent to impound vehicles of erring motorists except where vehicles have been parked in a manner that causes an obstruction on a highway or where a vehicle is suspected to have been stolen. Learned Counsel submitted that the act of impounding the appellant vehicle was ultra-vires the powers of the respondent. We were urged to resolve the issue in the respondent’s favour. Issue 2 above was not argued by the respondent.
At page 181-182 of the Record of Appeal, the learned trial judge held as follows:
“Having carefully gone through the Federal Road Safety Commission Act Cap 141 as amended, I am in no doubt that the defendant is empowered among other deterrents to impound any vehicle by which an offence under the act is reasonably suspected to have been committed. The defendant therefore did not act ultra-vires its powers when it impounded plaintiff’s vehicle on the 11th of December, 2003”.
I have myself gone through the Federal Road Safety Commission Act and it is clear to me that the above position of the trial judge is quite right.
Section 10(5) (h) of the Federal Road Safety Commission (Establishment) Act provides thus:-
10(5) “In the discharge of the functions of the corps by or under this Act and notwithstanding the provision of Section 18(1) of the Act, a member of the Corps shall have power to –
(h) Impound any vehicle by which an offence under this Act is reasonably suspected to have been committed.
One of the offences under the Act is failure to have a valid driver’s license. See Section 23(1) of the Act. One of the reasons why the appellant’s vehicle was impounded was his failure to possess a valid driver’s license. The respondent therefore did not act ultra vires its powers.
The 3rd and final issue is whether the Federal Road Safety Commission Act, Cap F19 Laws of the Federation 2007 is applicable to the case.
In his submission on this issue appellant’s counsel drew attention to the evidence of Pw1 to the effect that the cause of action arise on the 11th of December, 2003. We were referred to the judgment of the Lower Court at page 181 of the Record of Appeal, where it held that at the time the cause of action arose on the 11th of December, 2003, the Laws of the Federation 2004 had not come into operation.
Based on the conclusion of the trial court that the Laws of the Federation 2004 had not come into operation at the time the cause of action arose, that court, learned counsel argued, relied on the Federal Road Safety Act Cap.141 Laws of the Federation 1990 to hold that the respondent had power to impound the appellant’s vehicle. Having so held, the same court, he submitted went on to rely on the National Road Traffic Regulations/ a subsidiary legislation to the Federal Road Safety Act Cap F19 Laws of the Federation 2004.
Interestingly learned counsel submitted that the Federal Road Safety Commission Act in the 1990 Laws of the federation is the same as that in the 2004 Laws of the Federal. Also interestingly, learned counsel submitted that it is not in dispute that the National Road Traffic Regulations which is a subsidiary legislation to the Federal Road Safety commission Act came into force on the 27th of April 1997.
Learned Counsel then submitted that the trial judge was in error when he approbated and reprobated.
I think from the submissions of learned counsel himself, it is clear that the Laws and regulations pre-dated the cause of action. The Laws of the Federation have been re-enacted over the years but the basic s of most of the laws have remained unchanged. That is the situation in this case. Granted that the trial judge made reference to the National Road Traffic Regulations 2004, the content of that regulation as learned counsel admitted in his address is same as the one in force in 1997. There has therefore been no miscarriage of justice. It has long been established in the case of Falobi v. Falobi (1976) NMLR Vol.1 p.69 that where a relief or remedy is provided for by a written law, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law.
Although this is not a case of an applicant applying under a wrong law but one of a court applying the wrong law, I think the same principle must apply for it said: Falsa demonstratio non nocet – false description does not vitiate.
I think that the issue canvassed under issue three amounts to nothing but a storm in a teapot. The issue is resolved against the appellant.
All said, apart from issue 1, all the other live issues are resolved against the appellant. The merit of issue 1 will not alter the overall fate of this appeal. The appeal is not allowed. I will make no order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the advantage of reading the draft copy of the well articulated judgment just delivered by learned brother OBIETONBARA DANIEL-KALIO, JCA. I agree with his reasoning and conclusions. Having resolved the issues except issue one against the appellant, and disallowing the appeal, I also conclude that the appeal is unmeritorious and hence not allowed and dismissed.
There shall be no order to cost.
NONYEREM OKORONKWO, J.C.A.: I agree.
Appearances
Olumide AkinnimiFor Appellant
AND
Babatunde AdewusiFor Respondent
