BARRISTER BUSARI MUSE OLOOKAN & ANOR v. FEDERAL ROAD SAFETY COMMISSION & ORS (2019)

BARRISTER BUSARI MUSE OLOOKAN & ANOR v. FEDERAL ROAD SAFETY COMMISSION & ORS

(2019)LCN/13326(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/L/1220/2017

RATIO

NOTICE OF OFFENCES: LIMITATION ON WHAT THE COURT CAN DO AS REGARDS NOTICE OF OFFENCES

The Court cannot read any other meaning or interpretation into the options offered to the 1st Appellant in the Notice of Offence and the choice made by the 1st Appellant who chose to pay the prescribed fine imposed on him for the alleged offences.PER TIJJANI ABUBAKAR, J.C.A.

WAIVER: NATURE

In FASADE Vs. BABALOLA & ANOR [2003] 11 NWLR (Pt. 830) 26; (2003) LPELR-1243 (SC) Pg. 21, Paras. B F, theSupreme Court per UWAIFO, JSC held that:
The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights, to put it in another way, he is estopped from raising the issue.PER TIJJANI ABUBAKAR, J.C.A.

THE EFFECT OF A WAIVER ON NON-COMPLIANCE

It is settled law that as in the instance that the consequence of waiver defeats the issue of non-compliance.See also IFESINACHI INDUSTRIES NIG. LTD & ANOR Vs. VINEE OIL LTD (2015) LPELR-25130 (CA) Pg. 26, Paras. B-D; ENWEREM Vs. ABUBAKAR & ANOR (2016) LPELR-40369 (CA) Pg. 23-34, Paras. E ? F and OSOKOYA Vs. ONIGEMO (2017) LPELR-42730 (CA) Pg. 52-55, Paras. E B.PER TIJJANI ABUBAKAR, J.C.A.

PARTIES WILL SUCCEED ON THE STRENGHT OF THEIR OWN CASE AND NOT WEAKNESS OF THE DEFENCE
I must also state that the law is very well settled that parties such as the Appellants/Plaintiffs must succeed on the strength of their own case and not on the weakness of the Defendant’s case. See NWOBODO Vs. ONOH & ORS [1984] All NLR 1; (1984) LPELR-2120 (SC) Pg. 44, Paras. C – D; CHUKWUEKE Vs. OKORONKWO [1999] 1 NWLR (Pt. 587) 410; (1999) LPELR-857 (SC) Pg. 22, Paras. D -F; CPC Vs. INEC & ORS (2011) LPELR-3999 (CA) Pg. 27, Paras. C C and PDP Vs. EKEAGBARA & ORS (2016) LPELR-40849 (CA) Pg. 42-43, Paras. C B.PER TIJJANI ABUBAKAR, J.C.A.

JUDGMENT: A JUDGMENT MUST BE CONFINED TO ISSUES WHICH ARE DIRECT PRODUCTS OF PARTIS’ PLEADINGS

The law is trite that a judgment must be confined to issues which constitute direct product of the pleadings of the parties. See ODOGWU & ANOR Vs. NWAJEI & ORS (2013) LPELR-21030 (CA) Pg. 23-24, Paras. G ? E, where this Court re-echoed that:
Pleadings are a summary of facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence the Courts have also consistently held to the effect that the basic purposes or functions of pleadings is to avoid springing surprises on the other party; accordingly, parties are bound by their pleadings and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given to be in respect of a non-issue, and liable to be struck out or discountenanced by the Court. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the Court and parties are to adduce evidence in relation thereto only.PER TIJJANI ABUBAKAR, J.C.A.

PLEADINGS WHERE FACTS ARE NOT PLEADED

Therefore, where such facts are not pleaded, they are in law inadmissible in evidence and where inadvertently or wrongly admitted go to no issue and should be disregarded as irrelevant to issues properly raised by the pleadings
See: also DAYLOP Vs. MADALLA (2017) LPELR-43349 (SC) Pg. 15, Paras. A – E and AKINBADE & ANOR Vs. BABATUNDE & ORS (2017) LPELR-43463 (SC) Pg. 19-20, Paras. F B.PER TIJJANI ABUBAKAR, J.C.A.

APPEAL: A PARTY CANNOT FORMULATE MORE THAN ONE ISSUE FROM A GROUND OF APPEAL

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. BARRISTER BUSARI MUSE OLOOKAN
2. DR. KAYODE OWOLABI Appellant(s)

AND

1. FEDERAL ROAD SAFETY COMMISSION (FRSC)
2. SECTOR COMMANDER, LAGOS STATE
3. UNIT COMMANDER, OSHODI UNIT COMMAND Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court sitting in the Lagos Judicial Division, delivered by O. E. ABANG, J. on the 22nd day of May, 2017 in Suit No: FHC/L/CS/1139/2013 which is contained at pages 176 ? 199 of the Records of Appeal wherein the learned trial Judge struck out the Appellants? suit. The suit was instituted by the Appellant via Writ of Summons and Statement of Claim contained at pages 3 ? 10 of the Records of Appeal. The Respondents entered appearance and filed their Statement of Defense which is contained at pages 33 ? 39 of the Records of Appeal. The trial Court heard both sides and in the end found in favour of the Respondents and struck out the Appellants suit.

?The Appellants being aggrieved by the Judgment of the lower Court filed an Amended Notice of Appeal on the 29th day of January, 2018 which was deemed as properly filed and served on the 26th day of February, 2019. The said Amended Notice of Appeal is predicated on 6 (six) grounds of appeal. The Appellants? Brief of Argument was filed on 29th day of

January, 2018 by learned Counsel Busari Olookan. The Respondents? Brief on the other hand was filed by learned Counsel Olotu Ayodele Oluwakemi on the 9th day of March, 2018. The Appellants also filed a Reply Brief on the 29th day of March, 2018. All the Briefs were deemed as properly filed and served on the 26th day of February, 2019. Learned counsel for the Appellants nominated 6 (six) issues for determination, the issues are as follows:
1. Whether the payment of fine by the 1st Plaintiff/Appellant amounts to a waiver of his rights to fair hearing.
2. Whether the decision of the trial judge was not unreasonable when he held that payment of the fine imposed by the Defendant is an admission of guilt in view of the claim of the 1st Plaintiff/Appellant that he was compelled to pay the fine in order to mitigate his loss or predicament or to prevent further damage to his car.
3. Whether the trial judge did not misdirect himself when he allowed fresh issues not raised in the pleadings of parties and not canvassed at trial to form the basis of his judgment.
4. Whether the judgment of the trial Court that payment of fine voluntarily is an

acceptance that the payee has committed a traffic offence is not absurd, contradictory, perverse and a complete miscarriage of justice having regards to the initial findings of the trial judge that the 1st Plaintiff/Appellant was not over speeding.
5. Whether the Plaintiffs/Appellants right to fair hearing was not breached when the trial judge failed to resolve all issues for determination raised by the Plaintiffs/Appellants and for also raising suo moto the issue of waiver which was never in contention between the parties.
6. Whether the reliefs sought by the Plaintiffs/Appellants in the Statement of Claim are dependent on each other such that the denial of one by the Court will automatically translate to the denial of the other.

The learned Counsel for the Respondents on the other hand crafted 4 (four) issues for determination as follows:
1. Whether the payment of fines by the 1st plaintiff/appellant is an admission of guilt and amounts to waiver of his right to fair hearing (grounds one and two).
2. Whether the issue of payment of fine and waiver were not contained in pleadings of parties and whether same was raised suo moto by the

learned trial judge (ground five).
3. Whether the learned trial judge resolved all the issues for determination raised by the plaintiffs/appellants and evaluated all the evidence placed before him by both the appellants and respondents. (ground five).
4. Whether the learned trial Judge was right when he struck out the case of the appellants for being incompetent.

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
ISSUE ONE
Learned counsel for the Appellants argued that the 1st Appellant only paid the fine to avoid a bigger problem; that as a victim of a tortious act, he only did what was best to limit the damages he would have suffered and to mitigate his loss by paying the fines and then approaching the Court for a determination of his rights; and that the 1st Appellant was compelled and blackmailed to pay the said fine. Counsel referred to the testimony of the 1st Defendant?s Witness at pages 91 and 97 ? 98 to argue that the 1st Respondent?s agents had no intention to prosecute the 1st Appellant. Learned counsel further argued that assuming, without conceding, that the 1st Appellant paid the fine voluntarily; the payment

of fine cannot amount to a waiver of his right to fair hearing. Counsel referred to MUHAMMED Vs. ABU ZARIA [2014] 7 NWLR (Pt. 1407) Pg. 431 at 531, Para. B; PATRICK ZIIDEEH Vs. RIVERS STATE CIVIL SERVICE COMMISSION [2007] 3 NWLR (Pt. 554) Pg. 568, Paras. C ? D and STAT OIL NIG LTD Vs. INDUCOM NIG LTD [2014] 9 NWLR (Pt. 1411) Pg. 80, Paras B ? E & Pg. 99, Paras B ? E to argue that the 1st Appellant does not have the capacity to waive a right donated by the Constitution which cannot be taken away by any other Statute or even the Court; and that fair hearing must involve fair trial in the whole hearing.

Learned counsel for the Appellants contended that the facts of the case in BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS [2016] 4 NWLR 209 relied upon by the trial Judge are not on all fours with the facts of the instant case; that the 1st Appellant in the instant case never admitted committing the traffic offence alleged and that the defense of waiver was never pleaded and/or canvassed at the trial. Counsel citedINCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST Vs. A.G. OF LAGOS STATE & ANOR [2001] 9 WRN Pg. 137 @

155 Line 10 and Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the 1st Appellant was not informed of the offence he allegedly committed immediately until about 6 (six) hours after he was detained and his car impounded contrary to the Constitution. Learned counsel further referred to UGBOJI Vs. STATE (2017) LPELR-43427 (SC) Pg. 23, Paras. B ? D to reiterate that the 1st Appellant?s Constitutional right cannot be taken away by any law or statute.

Learned counsel argued that the Respondents breached the 1st Appellant?s right to fair hearing in several ways by failing to inform him of the offence he committed until after six hours of being detained and his vehicle impounded; that the 1st Appellant paid the fine out of desperation when it became apparent that the 1st Respondent?s agent will not release his vehicle until he paid the said fine; and that the Respondents had no intention of prosecuting the 1st Appellant. Counsel further submitted that it is wrong for the learned trial Judge to have held that the 1st Appellant having paid the said fine had waived his right under the

law and cannot complain of denial of fair hearing in the way and manner he was arrested, detained, and his vehicle was impounded by the 1st Respondent?s agents. Learned counsel referred to INCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST Vs. A.G. OF LAGOS STATE & ANOR (Supra) at Pg. 157, Line 15 ? 20; Pg. 156, Line 40 ? 45 and The Law of Tort, Ese Malemi, 2nd Ed., 2013 at Pg. 637, Line 17 ? 21 to submit that for the payment of fine to amount to waiver of a legal right; such payment must be voluntary and the legal right must have been abandoned in clear terms without leaving room for speculations. Counsel urged this Court to resolve issue No. 1 in favour of the Appellants and hold that the payment of fine by the 1st Appellant does not amount to a waiver of his rights to fair hearing.

ISSUE TWO
Learned counsel for the Appellants referred to the findings of the lower Court at pages 194 ? 195 of the Records of Appeal to submit that, as found by the learned trial Judge, the 1st Appellant was not over-speeding; but that the learned trial Judge turned around at page 197 of the Records of Appeal to condemn the 1st

Appellant, an innocent man for a crime he never committed just because he avoided further and more grievous injury and was compelled to pay fine for a crime that he did not commit. Counsel referred to the finding of the lower Court at page 196 of the Record of Appeal to submit that the decision of the learned trial Judge is formal justice as opposed to substantial justice. Learned counsel urged this Court to resolve issue No. 2 in the Appellants? favour by holding that the decision of the learned trial Judge that the payment of fine imposed by the Respondent is an admission of guilt was unreasonable when the learned trial Judge had found that the 1st Appellant was not over-speeding.

ISSUE THREE
Learned counsel for the Appellants argued that the issue as to payment of fine was never raised in the pleadings of the parties or in their testimonies before the lower Court; that the Appellants only claimed that they were entitled to the refund of the fine the 1st Appellant was compelled to pay; that the Respondents never raised or contended that the payment of fine was a waiver of the 1st Appellant?s right to fair hearing but that surprisingly,

the issue was raised for the first time in the Respondent?s final Written Address and the trial Judge based its decision on same. Counsel cited LANA Vs. UNIBADAN [1987] 4 NWLR (Pt. 64) Pg. 245 at 258-259; 262 and DIKE Vs. NZEKA [1986] 4 NWLR (Pt. 34) Pg. 144 at 156 to argue that evidence on facts not pleaded goes to no issue and should be rejected; and that if admitted it should be expunged from the records.

Learned counsel further referred toNIGERIA ARAB BANK Vs. FEMI KANE LTD [1995] 4 NWLR (Pt. 387) Pg. 100 at 106, Ratio 10 and CHUKWUJEKWU Vs. OLALERE [1992] 2 NWLR (Pt. 221) Pg. 86 at 93, Para. A, Ratio 7 to submit that the submission of counsel in the Written Address on an issue that was not canvassed at the trial and upon which no evidence was admitted cannot replace legally admitted evidence, no matter how brilliant, persuasive and beautifully crafted. Counsel submitted that the Respondents ambushed the Appellants in their final Written Address at the lower Court when they made submission on the issue of waiver which was never before the Court; and that the lower Court misdirected itself when it acted on such submissions and based its

decision thereon. Learned counsel urged this Court to resolve this issue in favour of the Appellants.

ISSUE FOUR
Learned counsel for the Appellants relied on the submissions made in respect of issues No. 1 ? 3 above; and further referred to the finding of the lower Court at pages 193 ? 196 of the Records of Appeal to contend that the trial Court itself reached a verdict that the 1st Appellant did not breach the approved speed limit, that the 1st defence witness is not a witness of truth; and that the 1st Respondent and its agents had no right to interfere with the 1st Appellant?s liberty as they did on the 29th of May, 2013 when he was arrested and his vehicle impounded. Counsel argued that the lower Court however contradicted itself at pages 196 ? 199 of the Records of Appeal and sacrificed justice in order to protect a government agency and its agents; and that the trial Judge turned himself to a spokesperson of the Respondents and made an attempt to re-write the facts placed before it. Learned counsel referred to UAC Vs. MCFOY and submitted that the issue of waiver raised by the trial Judge cannot stand on its own when no

offence was committed by the Appellants.

Learned counsel further referred to UBN LIMITED Vs. OGBOH [1995] 2 NWLR (Pt. 380) Pg. 647 at 654 & 669; FOLORUNSHO & ANOR Vs. SHALUOB [1994] 3 NWLR (Pt. 333) Pg. 413 at 433, Paras. B ? H and MORAH Vs. OKWUAYANGA [1990] 1 NWLR (Pt. 125) Pg. 225 at 232 to submit that as rightly found by the learned trial Judge the evidence placed before the Court by the Appellants was not impeached by the Respondents under cross-examination; that the same were even admitted by the Respondents? witness whose evidence is fraught with lies, inconsistencies and manifestly unreliable. Counsel relied further on ILIYA AKWAI LAGGA Vs. AUDU YUSUF SARHUNA [2008] SC 133 to contend that the trial Judge failed to properly evaluate the evidence placed before it by the parties and that the decision of the lower Court resulted in a miscarriage of justice.

Learned counsel for the Appellants cited MOGAJI Vs. ODOFIN [1978] 4 SC 91; UCHENDU Vs. OGBONI [1999] 4 SCNJ Pg. 64 at 76; ABIODUN ADELAJA Vs. YUSUF ALADE [1999] 4 SCNJ 225; IKEANYI Vs. ACB LIMITED [1997] 2 SCNJ 93; ILOABACHIE Vs. ILOABACHIE [2007] All FWLR (Pt. 303) Pg. 173

at 177, Paras D, G & H; CROWN FLOUR MILLS Vs. OLOKUN [2009] All FWLR (Pt. 393) Pg. 24 at 45; EBBA Vs. OGODO [2003] 41 WRN 70; ADIMORA Vs. AJUFO [1988] 1 NWLR (Pt. 96) Pg. 239; UWAH Vs. AKPABIO [2014] 17 WRN 77; ISU Vs. UCHE [2010] 197; MATANMI & ORS Vs. VICTORIA DADA & ANOR [2013] 31 WRN 19 and UGBOJI Vs. STATE (Supra) to argue that the judgment of the trial Court cannot be held to be a valid judgment; and that the said judgment is perverse because the learned trial Judge gave judgment in favour of the Respondent after refusing the testimony of the Respondent?s sole witness who was found not to be a witness of truth. Counsel reiterated that the decision of the lower Court that the payment of fine by the 1st Appellant was voluntary and amounts to an acceptance that the 1st Appellant committed a traffic offence is absurd, contradictory, perverse and a complete miscarriage of justice having regards to the initial findings of the lower Court that the 1st Appellant was not over speeding. Learned counsel urged this Court to resolve this issue in favour of the Appellants.

ISSUE FIVE
Learned counsel for the Appellants referred to

BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra) to submit that Courts are generally bound to resolve all the issues properly placed before them even if it is not clothed with jurisdiction to do so. Counsel referred to pages 191 ? 192 of the Records of Appeal to submit that the Appellants herein as Plaintiffs formulated two issues before the lower Court; and that although the learned trial Judge said he would consider the two issues together, the learned trial Judge failed to treat the second issue which is totally independent of the first issue. Learned counsel further submitted that while the learned trial Judge had found that the Respondents breached due process against the Appellants; the learned trial Judge avoided the issue of liability that must accrue to the Respondents for the assault. Counsel submitted that the learned trial Judge avoided the issue of unlawful detention of the Appellants; and that his vehicle was impounded, and that there was malicious damage of the 1st Appellant?s car.
?
Learned counsel submitted that assuming, without conceding that the 1st Appellant committed a traffic offence and fine was imposed on

him; the totality of the actions of the Respondents cannot be said to be in accordance with due process. Counsel submitted that if and when in the course of their duty, public officers abuse their power to the detriment of a citizen; they can be liable to damages for their tortious acts. Learned counsel argued that there was evidence, which was not impeached, before the trial Court that the servants of the Respondents collected the original driver?s license of the first Appellant; deflated his car tyres and thereafter forcefully towed away and impounded the 1st Appellant?s car thereby causing damage on the said car. Counsel submitted that all the infractions on the part of the Respondents were raised in the second issue which the learned trial Judge ignored and refused to resolve, thereby denying the Appellants their rights to fair hearing which consequently amounts to a miscarriage of justice; counsel referred to BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra) at Pg. 246, Paras. A ? D.

Learned counsel referred to Section 28 of the Federal Road Safety Act and BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS

(Supra) at Pg. 245, Para. A to argue that while it is true that the officers of the 1st Respondent can impound and retain the driving license or vehicle of an offender; they cannot impound both the driver?s license and the vehicle of the offender at the same time. Counsel submitted that in the instant case, the Respondents retained the original driver?s license of the 1st Appellant and still went ahead to impound his car. Learned counsel submitted that the Respondents? sole witness admitted under cross examination at page 89 of Records of Appeal that after the collection of the original driver?s license, it would not have been necessary to deflate the 1st Appellant?s car tyres or even impound the car.

Learned counsel contended that the instant case is not on all fours with, and distinguishable from the case of BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS because in the instant case, and unlike the case of BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS; the 1st Appellant herein denied the offence alleged, demanded to be taken to Court, and was forced to pay the fine imposed on him upon

impounding his car and driver?s license. Counsel relied on Section 167 (d) of the Evidence Act, 2011 to argue that the Respondents withheld the video record referred to by the Respondents at paragraph 39 of their Statement of Defense at page 38 of the Records of Appeal and in the Witness Statement on Oath of DW1 at page 47 of the Records of Appeal was not tendered/produced at the trial because it would not have been favorable to the Respondents? case because the Appellant clearly demanded to be taken to Court. Counsel further referred to page 98 of the Records of appeal to contend that DW1 admitted under cross examination that he did not take the Appellants to Court and did not know that he was expected to take the Appellants to Court.
?
Learned counsel further submitted that the trial Court raised the issue of waiver in the judgment suo motu without first allowing parties to address it on same. Counsel argued that the Respondents never joined issue with the Appellants on the issue of waiver nor was the issue ever canvassed at the trial of the case; but the Respondents raised the issue for the first time in their Written Address. Counsel

referred to BARRISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra) at Pg. 240-241, Paras. A ? B to submit that the Appellants? right to fair hearing was breached when the trial Court based its judgment on an issue only raised in the Respondents? Written Address but was not pleaded or argued by the parties. Learned counsel referred to SAMBA PETROLEUM LIMITED & ANOR Vs. UNITED BANK FOR AFRICA & 2 ORS [2010] 43 NSCQR Pg. 119 at 137; IWEKE Vs. FRN [2011] All FWLR (Pt. 588) Pg. 960 at 981, Paras. C ? E; STATE Vs. DANJUMA [1997] 5 SCNJ Pg. 126; FOLARIN Vs. THE STATE [1995] 1 NWLR 404 and EKPE Vs. STATE [1994] 12 SCNJ 131 to submit that in determining the right to fair hearing of parties, the Court must ensure that the parties have equal opportunity to present their case before the Court before judgment is delivered.

Learned counsel for the Appellants referred to ENGINEERING ENTERPRISE Vs. A.G. KADUNA [1987] 2 NWLR (Pt. 57) Pg. 381 at 400, Paras D ? E to submit that where injury has been inflicted on a victim; he has a right to seek remedy against the aggressor. Counsel further referred to ADAMA Vs. STATE

[2017] 16 NWLR (Pt. 592) Pg. 393, Paras E ? F & Pg. 382, Paras. B ? C; DARLINGTON EZE Vs. FRN [2017] 15 NWLR (Pt. 1589) Pg. 446, Para. F ? G; NRMAFC Vs. JOHNSON [2007] 49 WRN 168-170; AJAKAIYE Vs. IDEHAI [1994] 8 NWLR (Pt. 364) Pg. 504; ARTA MD LTD Vs. NBCI [1997] 1 NWLR (Pt. 546) Pg. 357; DAKAT Vs. DASHE [1997] 12 NWLR (Pt. 531) Pg. 46; and BENSON Vs. NIGERIA AGIP OIL CO LTD [1982] 5 SC 1 to submit that the trial Courts ought not to sacrifice substantial justice for technicalities and/or formalities having found that the 1st Appellant did not commit the offence of Speed Limit Violation and assault of the 1st Respondent?s Marshal as proffered against him. Learned counsel urged this Court to resolve issue No. 5 in favour of the Appellants and hold that the Appellants right to fair hearing was breached in the instant case.

ISSUE SIX
Learned counsel for the Appellants referred to the reliefs sought by the Appellants in the Statement of Claim at the lower Court; and argued that the parties joined issues on each of these reliefs separately and not jointly; and that although the reliefs may be related, they are not dependent on

each other such that when one is refused, the others must also fail. Counsel further argued that even if the 1st Appellant did commit the offences stated on Exhibit B1, it does not lie within the powers of the Respondents to detain and impound the 1st Appellant?s car after they had taken his driver?s license. Counsel referred to AMINU Vs. HASSAN (2014) 57 (Pt. 1) NSCQR 44 Pg. 656 and ABEKE Vs. ODUNSI (2013) 54 (Pt. 1 NSCQR 564 Pg. 570 to submit that parties are bound by their pleadings and that any fact or evidence led at trial that was not pleaded goes to no issue.

Learned counsel contended that even if, though not conceding, that the lower Court was right to have dismissed the first issue raised by the Appellants; the Court could not have dismissed the Appellants? second issue without addressing same because the reliefs sought by the Appellants in their Statement of Claim are not dependent on each other such that the denial of one by the Court will automatically translate to the denial of the other. Learned counsel further urged this Court to resolve this issue in favour of the Appellants; set aside the Judgment of the lower Court and

grant the reliefs sought by the Appellants in their Writ of Summons and Statement of Claim.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS
ISSUE ONE
Learned counsel for the Respondents argued that the payment of fines by the 1st Appellant is an admission of guilt and amounts to a waiver of the 1st Appellant?s right to fair hearing. Counsel argued that the Appellants stated in their Statement of Claim that the 1st Appellant was arrested by agents of the 1st Respondent on the 29th of May, 2013 for the offence of speed limit violation and obstruction of marshal on duty and that the 1st Appellant promptly paid the fines the following day being 30th May, 2013. Counsel argued that contrary to the Appellants contention that the 1st Appellant paid the fine to mitigate his loss because he had several documents in the vehicle; the 1st Appellant was asked to remove all his valuables from his vehicle which he did in line with operational procedure. Learned counsel referred to Exhibit 1 which is the Notice offence dated 29th May, 2013 as contained at pages 25 and 26 of the Records of Appeal to submit that it was clearly stated therein that the 1st

Appellant could pay the prescribed penalty if he wished not to be prosecuted and if he wished to waive his right to a Court trial.
?
Learned counsel contended that the 1st Appellant was not prosecuted because he had already waived his right to a Court trial by promptly paying the fine the following day after his arrest. Counsel referred to Regulation 220 of the National Road Traffic Regulations, 2012 which is made pursuant to Section 5 of the Federal Road Safety Commission (Establishment) Act, 2007. Counsel further argued that the essence of the Exhibit 1 ? the Notice of Offence is to notify an offender of the fine payable for an alleged offence and to leave the offender with the option of paying the fine to avoid prosecution; that where an offender elects to pay the fine, it cannot be said that his fundamental right of fair hearing was violated since he voluntarily opted out of a Court trial and chose to pay the fine. Learned counsel referred to paragraph 24 of the 1st Appellant?s Witness Statement on Oath at page 22 of the Record of Appeal to submit that the facts of this case indicated that the 1st Appellant voluntarily opted to pay the

fines.

Learned counsel for the Respondents referred to INCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST Vs. A.G. OF LAGOS & ANOR (Supra); BARRISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra); NEWSWATCH COMM. LTD Vs. ATTA [2006] 12 NWLR (Pt. 993) Pg. 144; S & D CONST. LTD Vs. AYOKU [2011] 13 NWLR (Pt. 1265) Pg. 487; MIL. GOV. LAGOS STATE Vs. ADEYIGA [2012] 5 NWLR (Pt. 1239) Pg. 291; CHIDOKA Vs. FCFC LTD [2013] 5 NWLR (Pt. 1346) Pg. 144 and UKACHUKWU Vs. PDP [2014] 17 NWLR (Pt. 1435) Pg. 134 to submit that fair hearing only makes it incumbent on the Court or a non-judicial body to afford a party the opportunity to exercise the right to fair hearing and that it is left to that party to exercise his right or discard same. Counsel further argued that the 1st Appellant by electing to pay the penalty/fine had dispossessed himself of the right to a prosecution in Court.

Learned counsel further contended that distinguishing between the instant case and the case ofBARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra) is immaterial because the critical/sole issue is the payment of fines which was made in the two

cases being distinguished. Counsel referred to the unreported decision of this Court in FRSC & ANOR Vs. OKEBU GIDEON ESQ ? CA/IL/50/2015 delivered on the 19th day of March, 2015 to submit that the Notice of Offence does not to take away the entitlement of a person to a fair trial in a public place, within a reasonable time and by a Court of law or Tribunal in accordance with Section 36(4) of the of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It was further reiterated by the Respondents? counsel that having paid the fine which indicated a waiver of his right to be prosecuted; there was nothing to prosecute the 1st Appellant for. Learned counsel referred to the statement of the Respondents? Witness under cross-examination at page 89 of the Records of Appeal to argue that the 1st Appellant?s driver?s license was not and could not have been confiscated because upon demand, the 1st Appellant only presented a photocopy of his license which was returned to him; and that only his vehicle was impounded. Counsel referred to MICHAEL ADEYEMO Vs. THE STATE [2011] 52 WRN Pg. 168 at 182 to submit that the

traffic offences are essentially strict liability offences, hence the provision in the Notice of Offence which gave an offender the option of paying the prescribed fine as an admission of the alleged offence and/or alternatively refuse to pay and face Court trial. Learned counsel urged this Court to resolve this issue in favour of the Respondents.

ISSUE TWO
Learned counsel for the Respondents under this issue submitted that the fact of payment of fine was clearly established by the Appellants and the Respondents; and that the 1st Appellant tendered the Union Bank deposit slip with which he paid the said fines. Counsel referred to paragraph 24 of the Statement of Claim at page 15 of the Records of Appeal; paragraph 37 of the Statement of Defense at page 38 of the Records of Appeal; and Issue 1 in the Respondents? Final Written Address at page 120-122 of the Records of Appeal to argue that the Respondents? counsel at the lower Court canvassed in their Written Address that the payment of fines by the 1st Appellant is an admission of guilt and amounts to a waiver of his right to be prosecuted for the offences committed. Learned counsel

submitted that the issue of waiver was therefore not raised suo motu by the trial Judge. This Court was urged to resolve this issue in favour of the Respondents.

ISSUE THREE
Learned counsel for the Respondents submitted under this issue that the learned trial Judge properly and judiciously resolved all the issues for determination raised by the Appellants; and that all the evidence placed before the lower Court were evaluated by the learned trial Judge while arriving at his decision to strike out the Appellants? case. Counsel argued that the trial Court?s decision to adopt the issues for determination formulated by the Respondents in the resolution of the case before it cannot be interpreted to mean that the issues raised by the Appellants were ignored. Learned counsel submitted that all the issues raised by the Appellants were adequately considered and evaluated in the judgment of the trial Court and nothing was omitted. Counsel referred to DIKE Vs. UHUNMWANGHO [2011] 43 WRN 75 to submit that the Court of Appeal will not interfere with the verdict of the trial Court unless the verdict is shown to be perverse or not to be the result of

proper exercise of his judicial discretion.

Learned counsel for the Respondents further argued that the primary role of the trial Judge is to evaluate evidence and ascribe probative value to the evidence placed before the Court; and that it is not the business of the Appellate Court to substitute its own view for that of the trial Court. Counsel referred to ODOFIN Vs. AYOOLA (Pt. 1984) 11 SC 72 at 113 and IBULUYA Vs. DIKIBO [2010] 18 NWLR (Pt. 1225) Pg. 627 SC to further submit that an Appellate Court will not set aside the decision of a lower Court which is right and just merely because the trial judge gave wrong reasons for the decision; and that the paramount consideration for the Appellate Court is, whether the decision is right and not necessarily whether the reasons are right. Learned counsel urged this Court to resolve this issue in favour of the Respondents.

ISSUE FOUR
Learned counsel for the Respondents referred to Section 131 & 134 of the Evidence Act, 2011; and MIKE NNACHI Vs. SIR CYRIL ONUORAH & ANOR [2011] 22 WRN 77 at 95 & 97 to submit that for the Appellants to be entitled to the reliefs sought, they must discharge

the burden of proof placed on them and that the law is trite that he who asserts must prove. Counsel submitted that the Appellants did not make out any case against the Respondents and did not place any credible or substantial evidence before the lower Court so as to entitle them to the reliefs sought. Learned counsel reiterated that there was nothing to prosecute the 1st Appellant for since he had paid the fine prescribed in the Notice of Offence which is an indication of his choice to waive his right to fair hearing and prosecution. Counsel urged this Court to resolve this issue in favour of the Respondents and dismiss this appeal with costs against the Appellant.

REPLY BY APPELLANT?S COUNSEL
Learned counsel for the Appellant in the Reply to the Respondents? first issue argued that although the fact that the Appellants? documents were trapped in the car were not specifically pleaded, paragraph 23 of the Statement of Claim captioned the mind of the Appellants that the payment of fine was in protest and not voluntarily. Counsel argued that it is false that the Appellants were advised to remove all their valuables from the vehicle.

Counsel relied on AJIBULU Vs. AJAYI [2013] 56 (Pt. 1) NSCQR Pg. 471 at 486 and ONOVO Vs. MBA [2014] 14 NWLR (Pt. 1427) Pg. 223-442 to argue that paragraph 37 of the Respondents Statement of Defense is a general traverse and cannot be taken as a denial. Counsel further referred to Exhibit B1 to submit that the payment of fine by the Appellants was not voluntary because the Appellant did not tick the ?yes? or ?no? box in the clauses in Exhibit B1 to indicate the voluntariness of the said waiver. Learned counsel proceeded to argue that the 1st Appellant?s license was seized and his vehicle was impounded and that it was after he paid the fine that his original license was returned to him; and that it was from the license that the 1st Appellant?s details contained in Exhibit B1 were copied. Counsel urged this Court to resolve the issue in favour of the Appellants.
?
On the Respondents? second issue, learned counsel further referred to paragraphs 23 & 24 of the Appellants Statement of Claim were not denied and that paragraphs 37 & 38 of the Respondents Statement of Defense are not specific denials. Counsel

referred to MOROHUNFOLA Vs. KSCT [1990] 7 SC (Pt. 1) Pg. 40; ISAAC Vs. IMASUEN [2016] 65 (Pt. 1) NSCQR Pg. 320 at 338; ABEKE Vs. ODUNSI [2013] 564 at 590; REPTICO SA Vs. AFRIBANK [2013] 54 (Pt. 1) NSCQR Pg. 600 at 654-655; AMINU ISHOLA INVESTMENT Vs. AFRI BANK [2013] 54 (Pt. 2) NSCQR Pg. 717 at 752 and INCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST Vs. A.G. OF LAGOS STATE & ANOR (Supra) to argue that the facts the Respondents chose to rely on must be specifically pleaded and that they never raised the issue of waiver in their pleadings and cannot be allowed in law to rely on same. This Court was urged to resolve the Respondents? second issue in favour of the Appellants.

With respect to the Respondents third issue, learned counsel reiterated that the trial Court did not resolve the issues formulated by the Appellants and that the Respondents confirmed that this fact in their brief; counsel referred to BARISTER MOSES EDIRU Vs. FEDERAL ROAD SAFETY CORPS & 2 ORS (Supra) and urged this Court to resolve the issue in favour of the Appellants. Counsel further referred to ADEJUMO Vs. OLAWAIYE [2014] 58 (Pt. 2) NSCQR Pg. 765 at 787 to contend that

the Respondents Issues No. 2 and 3 were formulated from a single ground thereby amounting to proliferation of issues and should therefore be struck out.

In response to the Respondents? issue No. 4, learned counsel for the Appellants argued that the issue was not formulated from any of the grounds of appeal and ought to be struck out. Counsel further submitted that the basis for the Appellants? challenge to the trial Court?s decision was that the decision of the lower Court is absurd, contradictory, perverse and a miscarriage of justice. Counsel urged that this issue be resolved in favour of the Appellants and also to allow this appeal for the reasons stated in the Appellants? Brief.

RESOLUTION
APPELLANTS? ISSUES 1, 2 & 4 and RESPONDENTS? ISSUE 1
I have considered, compared and contrasted the issues for determination placed before this Court by the parties and it is my view that issues No. 1, 2 and 4 distilled by the Appellants and issue No. 1 distilled by the Respondents can be determined in one breathe because the question that arises under these issues is: ?Whether the 1st Appellant, by the

payment of the fines imposed in the Notice of Offence ? Exhibit B1 by the Respondent has admitted guilt of the traffic offences for which he was charged and consequently waived his right to fair hearing through a Court trial The contention of the Appellants under this issue is that although the Appellants paid the fine, the payment was made in protest and involuntarily because the Appellants had to mitigate the loss that they would have suffered if the car which belonged to the 1st Appellant had remained impounded by the 1st Respondents agents.

The Respondents on their part contended that the payment of fines by the 1st Appellant is an admission of guilt and amounts to a waiver of his right to fair hearing; that the 1st Appellant was not prosecuted because he had already waived his right to a Court trial by promptly paying the fine the following day after the Notice of Offence was issued; that it cannot be said that the 1st Appellant?s fundamental right of fair hearing was violated since he voluntarily opted out of a Court trial and chose to pay the fine; that fair hearing only makes it incumbent on the Court or a non-judicial body to

afford a party the opportunity to exercise his right to fair hearing and that it is left to that party to exercise his right to discard same; and that the 1st Appellant by electing to pay the penalty/fine had dispossessed himself of the right to a prosecution in Court.

In the instant case, the Appellants as Plaintiffs before the trial Court referred to and tendered the Notice of Offence with serial No. 061632 which was admitted as Exhibit B1 and contained at pages 25 and 26 of the Records of Appeal and the Union Bank Deposit Slip contained at page 28 of the Records of Appeal which was admitted as Exhibit B2. I have carefully considered Exhibit B1; and what could possibly be the effect of the payment made by the 1st Appellants as evidenced by Exhibit B2. It is my view that, Clause/Section H of the said Notice of Offence provided a caution to the alleged offender, in this case, the 1st Appellant herein in the following words:
?If you do not wish to be PROSECUTED, then pay the prescribed penalty to the specified bank and present the original teller to FRSC office (See details Overleaf)
This Notice of Offence expires after 7 days from the date

of issue, thereafter you may be PROSECUTED.?
The said Notice of Offence on the other page further contains an unequivocal question which is clear enough for the Appellant who happens to be a legal practitioner to comprehend. It was stated therein like this:
?Do you wish to waive your Right to a Court trial?
If yes, pay the prescribed fine(s) in any of the designated Banks and bring the Teller to the FRSC office.”
Despite the clarity of the foregoing contents of the Notice of Offence, the 1st Appellant proceeded to pay the fine imposed by the 1st Respondent. In my opinion by making the said payment which is exhibited by the teller admitted in evidence as Exhibit B2, the Appellants have undoubtedly opted not to be prosecuted and waived his right to a Court trial. The Court cannot read any other meaning or interpretation into the options offered to the 1st Appellant in the Notice of Offence and the choice made by the 1st Appellant who chose to pay the prescribed fine imposed on him for the alleged offences. In FASADE Vs. BABALOLA & ANOR [2003] 11 NWLR (Pt. 830) 26; (2003) LPELR-1243 (SC) Pg. 21, Paras. B ? F, the

Supreme Court per UWAIFO, JSC held that:
?The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights, to put it in another way, he is estopped from raising the issue.?
Similarly, in NBC Vs. UBANI (2013) LPELR-21902 (SC) Pg. 22, Paras. E ? G, the Supreme Court of Nigeria per CHUKWUMA-ENEH, JSC held that the concept

of waiver can be equated to: simply failing to take advantage of a right very obvious to a party where it is clear that there is no other reasonable presumption in explanation of the party?s steps so far taken in the proceedings before the Court (as in this case) than that the right is let go ? he has acquiesced in his right putting it naively.? The learned Jurist had earlier stated at Pg. 15, Para. C that:
?It is settled law that as in the instance that the consequence of waiver defeats the issue of non-compliance.? See also IFESINACHI INDUSTRIES NIG. LTD & ANOR Vs. VINEE OIL LTD (2015) LPELR-25130 (CA) Pg. 26, Paras. B ? D; ENWEREM Vs. ABUBAKAR & ANOR (2016) LPELR-40369 (CA) Pg. 23-34, Paras. E ? F and OSOKOYA Vs. ONIGEMO (2017) LPELR-42730 (CA) Pg. 52-55, Paras. E ? B.
?In the instant case, the Appellant was clearly presented with the option of paying the fine only if he wished to waive his right to a Court trial and not be prosecuted. The Appellants contention that he paid the fine in protest or involuntarily is not sustainable as there is no evidence before the lower Court to

establish such assertions. The Appellants contended in the Reply Brief that the payment of fine was not voluntary because the Appellant did not tick the ?yes? or ?no? box in the clauses in Exhibit B1 to indicate the voluntariness of the said waiver. This submission is untenable and therefore porous because the Notice of Offence clearly stated that: ?If yes, pay the prescribed fine(s) in any of the designated Banks and bring the Teller to the FRSC office.? By the 1st Appellant?s conduct of proceeding to make the payment of the fine as evidenced by Exhibit B2, the Appellants failure to tick the ?yes? or ?no? box in the in Exhibit B1 is of no relevance.
The question whether the 1st Respondent?s agents can impound the 1st Appellants vehicle does not arise in this appeal. The unchallenged finding of the lower Court at page 193 of the Records of Appeal is that:
?It is not in doubt and not in dispute too that under the provisions of Section 10 Subsection 5(a) of the Federal Road Safety Commission (Establishment Act) 2007, the 1st Defendant or any of its agents can lawfully effect

the arrest of any person suspected of committing or having committed a traffic offence under the Act
See also: ESEKHAIGBE Vs. FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388 (CA) Pg. 16, Paras. C ? F. Therefore, in my view the Appellant having elected to pay the fine imposed on him, the argument of paying in protest cannot revive the Appellants? right to a Court trial which the 1st Appellant willingly gave up by opting to pay the fines. I am of the view that the lower Court was right when it found at pages 197 ? 198 of the Records of Appeal that: the Plaintiffs having elected to pay the fines they cannot claim that their fundamental right to fair hearing was violated since they voluntarily opted out not to be arraigned in Court. Payment of fine voluntarily is an acceptance that the payee has committed a traffic offence
?The 1st Appellant by his conduct of proceeding to pay the fine imposed certainly admitted committing the offence and chose not to be prosecuted. I must also state that the law is very well settled that parties such as the Appellants/Plaintiffs must succeed on the

strength of their own case and not on the weakness of the Defendant?s case. See NWOBODO Vs. ONOH & ORS [1984] All NLR 1; (1984) LPELR-2120 (SC) Pg. 44, Paras. C ? D; CHUKWUEKE Vs. OKORONKWO [1999] 1 NWLR (Pt. 587) 410; (1999) LPELR-857 (SC) Pg. 22, Paras. D ? F; CPC Vs. INEC & ORS (2011) LPELR-3999 (CA) Pg. 27, Paras. C ? C and PDP Vs. EKEAGBARA & ORS (2016) LPELR-40849 (CA) Pg. 42-43, Paras. C ? B. Therefore, the Appellants reliance on the initial findings of the lower Court at pages 193 ? 196 of the Records of Appeal to contend that the trial Court itself reached a verdict that the 1st Appellant did not breach the approved speed limit and that the 1st defense witness is not a witness of truth is in my opinion inconsequential because even if the Respondents had not put up any defense, the Appellants still had a duty to prove their case. The initial reasoning of the learned trial Judge at page 194 ? 196 is at best, in my opinion an obiter because the rationale for the conclusion of the learned trial Judge was simply the 1st Appellant?s voluntary election to pay the fine which was optional and

undoubtedly can only be interpreted as an admission of committing the alleged traffic offence. In the light of the foregoing reasons, the Appellants Issues No. 1, 2, and 4 and the Respondent?s Issue No. 4 which I reformulated into a sole issue, to wit: ?Whether the 1st Appellant, by the payment of the fines imposed in the Notice of Offence ? Exhibit B1 by the Respondent has admitted guilt of the traffic offences for which he was charged and consequently waived his right to fair hearing through a Court trial are hereby resolved against the Appellants and in favour of the Respondents.

APPELLANTS? ISSUES 3 &5 &RESPONDENTS? ISSUE 2
The next set of issues which I will consider are Issues No. 3 and 5 nominated for determination by the Appellants which bear some similarity with the Respondents issue No. 2. In my opinion, the issue is simply: Whether the issues of payment of fine and waiver were not contained in pleadings of parties and whether same was raised suo moto by the learned trial judge.

The Appellants? submission is that the issue as to payment of fine was never raised in

the pleadings of the parties or in their testimonies before the lower Court; that the Respondents never raised or contended that the payment of fine was a waiver of the 1st Appellants right to fair hearing; that the trial Court raised the issue of waiver in his judgment suo moto without first allowing parties to address it on same; that the Respondents never joined issue with the Appellants on the issue of waiver nor was the issue ever canvassed at the trial of the case; that the Respondents ambushed the Appellants in their final Written Address at the lower Court when they made submission on the issue of waiver which was never before the Court; and that the lower Court misdirected itself when it acted on such submissions and based its decision thereon.

The Respondents contention on the other hand is that the fact of payment of fine was clearly established by the Appellants and the Respondents; that the 1st Appellant tendered the Union Bank deposit slip with which he paid the said fines; that both the Appellants and Respondents pleaded the issue; that the Respondents? counsel at the lower Court canvassed in their Written Address that the

payment of fines by the 1st Appellant is an admission of guilt and amounts to a waiver of his right to be prosecuted for the offences committed; and that the issue of waiver was not raised suo motu by the learned trial Judge.

The law is trite that a judgment must be confined to issues which constitute direct product of the pleadings of the parties. See ODOGWU & ANOR Vs. NWAJEI & ORS (2013) LPELR-21030 (CA) Pg. 23-24, Paras. G – E, where this Court re-echoed that:
Pleadings are a summary of facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence the Courts have also consistently held to the effect that the basic purposes or functions of pleadings is to avoid springing surprises on the other party; accordingly, parties are bound by their pleadings and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given to be in respect of a non-issue, and liable to be struck out or discountenanced by the Court? In other words, the issues that call for resolution in a

case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the Court and parties are to adduce evidence in relation thereto only.
See also the decision of the Supreme Court of Nigeria in AMINU & ORS Vs. HASSAN & ORS (2014) LPELR-22008 (SC) Pg. 47-48, Paras. G ? C where PETER-ODILI JSC held that:
none of the parties is allowed to raise at the trial of a suit, an issue of fact which has not been pleaded by him. Therefore, where such facts are not pleaded, they are in law inadmissible in evidence and where inadvertently or wrongly admitted go to no issue and should be disregarded as irrelevant to issues properly raised by the pleadings
See: also DAYLOP Vs. MADALLA (2017) LPELR-43349 (SC) Pg. 15, Paras. A -E and AKINBADE & ANOR Vs. BABATUNDE & ORS (2017) LPELR-43463 (SC) Pg. 19-20, Paras. F B.

In the instant case, to determine the issue at hand, the pleadings of the parties must be thoroughly considered to determine whether the issue as to payment of fine was never raised in the pleadings of the parties or in their testimonies

before the lower Court as argued by the Appellants. The Appellants Statement of Claim is contained at pages 5 10 of the Records of Appeal. I will reproduce paragraphs 18 and 23 thereof;
18. To provide escape valve for their garrulous and illegal conduct against the Plaintiffs and foist on the Police a fait accompli, the team leader of the Marshals hurriedly fixed the 1st Plaintiff with the offences of speed limit violation (SLV 5) and obstructing marshal on duty (OMD 3) videlicet: an undated Notice of Offence with serial number 061632. Also in their desperate bid to cover up for the assault occasioning harm done to the 2nd Plaintiff, and the malicious damage done to the 1st Plaintiffs car, it is alleged on the face of the undated Notice of offence that the 1st Plaintiff who had no contact whatsoever with the driver of the towing vehicle assaulted him. A photocopy of the Notice of Offence is hereby pleaded and will be relied upon at the trial.
23. To mitigate their predicament and prevent further damage to the 1st Plaintiffs car impounded by the Defendants, the Plaintiffs paid the fine of N8,000:00 to the Union Bank

Account of FRSC videlicet a deposit slip number 0124331 on protest on the 30th of May, 2013 to get the impounded car released from where it was parked at Mowe Unit of FRSC. The Plaintiff shall found and rely on the Union Bank Deposit Slip and the Gate Pass issued by the Oshodi Unit Command of FRSC.”

The above facts were restated by the 1st Appellant in paragraph 19 and 24 of his Witness Statement on Oath at pages 12 – 17 of the Records of Appeal; and at paragraphs 19 and 24 of the 2nd Appellants Witness Statement on Oath at pages 18 -23 of the Records of Appeal. The Notice of Offence and Union Bank Slip contained at pages 25 – 26 and 28 of the Records of Appeal were admitted in evidence as Exhibits B1 and B2. The Respondents Statement of defense is contained at pages 34 -39 of the Records of Appeal; the relevant paragraphs are reproduced as follows:
29. The Defendants denies paragraph 18 of the Plaintiffs statement of claim and the Plaintiffs are put to the strictest proof of the averments thereof.
30.
31. The Defendants states further on paragraph 18 that it is not true that the

Defendants Notice of offence sheet number was undated and that the said Notice of offence sheet exhibited by the Plaintiffs has a date of arrest as the 29th day of May 2013.
37. The Defendants admits paragraph 23 only to the extent that the 1st Plaintiff paid the fine for the traffic offences he committed but denies they are responsible for any damage to his vehicle and the Plaintiffs are put to the strictest proof of the averments thereof.

From the foregoing pleaded facts of the parties at the lower Court; I am of the opinion that the issue of the Notice of Offence and the fine paid thereon was clearly pleaded by both the Appellants and the Respondents. The Appellants contention that the issue as to payment of fine was never raised in the pleadings of the parties or in their testimonies before the lower Court? is far from the truth as shown by the pleadings of the Appellants as well as the Respondents as reproduced above; the Appellants pleaded and exhibited the Notice of Offence and the Union Bank Deposit Slip as evidence of payment of the fine indicated on the Notice of Offence. In the same vein, the Appellants on one

hand contended that: ?the Respondents ambushed the Appellants in their final Written Address at the lower Court when they made submissions on the issue of waiver which was never before the Court? and on the other hand that the trial Court raised the issue of waiver in its judgment suo moto without first allowing parties to address it on same. I am of the view that both conflicting submissions are in contrast of what is obtainable from the Records of Appeal before this Court.

As already reproduced and shown from the Records of Appeal; the Appellants pleaded and exhibited the Notice of Offence and the Union Bank Deposit Slip as evidence of payment of the fine indicated on the Notice of Offence; the Respondents joined issues with the Appellants thereon when they admitted the Notice of Offence and contended that it was dated; and that the fine paid by the Appellants was for the traffic offence they were charged for, which is clearly indicated on the Notice of Offence. The Respondents in their Final Written Address dated and filed before the lower Court on the 29th of June, 2016 as contained at pages 118 ? 131 of the Records of

Appeal made submissions therein to the effect that the Notice of Offence gave the 1st Appellant the option of paying the fine and waiving the right to a Court trial or wait for seven days to be prosecuted for the offences indicated against the 1st Appellant in the Notice of Offence and that the payment of fine by the 1st Appellant indicated that the 1st Appellant elected to waive the right to a Court trial.

The Appellants filed their Final Written Address on 5th day of August, 2016 which is contained at pages 132 ? 144 of the Records of Appeal wherein they submitted arguments on two issues submitted therein. There is therefore no doubt that the issue of waiver of right to be tried in Court arose from the Notice of Offence which was pleaded and the trial Court did not raise the issue suo motu as contended by the Appellants. Let me state, that the Respondents raised the issue of payment of fine being a waiver of the Appellants rights in their Final Written Address which was filed earlier in time and presumably served on the Appellants way before the Appellants filed their Final Written Address; the Appellants in my opinion had the chance to contend

this points at the lower Court; and having failed to do so, the leaned trial Judge cannot be faulted on the ground that the Appellants were ambushed. Clearly, the issue of waiver emanates from the Notice of Offence ? Exhibit B1 and Union Bank Deposit Slip ? Exhibit B2 which were pleaded and exhibited from the foundation of the case.

Therefore, I am of the view that the learned trial Judge cannot be said to have raised the issue of waiver and payment of fine suo moto; and the Appellants were not ambushed as the Notice of Offence was in fact pleaded by them and the Court was at liberty to look at the evidence and make inference therefrom. See OGUNTOLU Vs. STATE [1987] 1 NWLR (Pt. 50); (1986) LPELR-20601 (CA) Pg. 18, Para. A; OKESOTO Vs. TOTAL NIG. PLC (2010) LPELR-4716 (CA) Pg. 11-12, Paras. D ? A and ABUJA INVESTMENT & PROPERTY DEVELOPMENT CO. LTD. Vs. PAUL & ORS (2018) LPELR-45827 (CA) Pg. 54-58, Paras. B ? D. In the circumstances therefore, I hereby resolve the Issues against the Appellants.

APPELLANTS ISSUE 6 & RESPONDENTS? ISSUES 3 & 4
The remaining issues are the Appellants? Issue

No. 6 and the Respondents Issues No. 3 & 4. With respect to the Respondents? Issue No. 3, the Appellants in their Reply Brief argued that the Respondents Issues No. 2 and 3 were formulated from a single ground thereby amounting to proliferation of issues and should therefore be struck out. Indeed, as contained in the Respondents Brief, both Issues No. 2 and 3 were stated to have been distilled from Ground No. 5 of the Amended Notice of Appeal. Such, undoubtedly amounts to a proliferation of issues; this Court does not condone or encourage proliferation of issues. This position bears the support of a plethora of existing judicial authorities such as the Supreme Court decision in NWANKWO Vs. YAR?ADUA [2010] 12 NWLR (Pt. 1209) Pg. 518; (2010) LPELR-2109 (SC) Pg. 35, Paras. A ? C where OGBUAGU JSC held that:
there are more issues formulated for determination than the number of the said grounds of Appeal. That this amounts to proliferation of issues which is not allowed by this Court. I agree. The fact of proliferation of issues has been deprecated by two Appellate Courts in a number of decided authorities.?

See also BILLE Vs. STATE (2016) LPELR-40832 (SC) Pg. 7, Paras. B – C; UNION BANK Vs. SALAUDEEN (2017) LPELR-43415 (CA) Pg. 6-7, Paras. F ? F and AJISEGIRI & ORS Vs. SALAMI & ORS (2016) LPELR-40567 (CA) Pg. 6, Paras. B ? F where this Court held that: It is also trite that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. This is the principle against the proliferation of issues for determination by parties Therefore, the Respondents? Issue No. 3 as formulated shall be discountenanced having been distilled from the same Ground 5 of the Amended Notice of Appeal wherefrom the Respondents Issue No. 2 was also distilled.

In the circumstance therefore only the Appellants Issue No. 6 and the Respondent?s Issue No. 4 shall be considered and resolved. The Appellants? contention under their Issue No. 6 is that going by the reliefs sought by the Appellants in the Statement of Claim at the lower Court, the parties joined issues on each

of these reliefs separately and not jointly; that though the reliefs may be related, they are not dependent on each other such that when one is refused, the others must also fail; that even if the 1st Appellant did commit the offences stated on Exhibit B1, it does not lie within the powers of the Respondents to detain and impound the 1st Appellant?s car after they had taken his drivers license.

The Appellants further argued that even if, although not conceded, that the lower Court was right to have dismissed the first issue raised by the Appellants; the Court could not have dismissed the Appellants? second issue without addressing same because the reliefs sought by the Appellants in their Statement of Claim are not dependent on each other such that the denial of one by the Court will automatically translate to the denial of the other. On the other hand, in the Respondents Issue No. 4, it was contended that for the Appellants to be entitled to the reliefs sought, they must discharge the burden of proof placed on them and that the law is trite that he who asserts must prove; that the Appellants did not make out any case against

the Respondents and did not place any credible evidence before the lower Court so as to entitle them to the reliefs sought.

I have carefully considered the two issues crafted by the Appellants in their Statement of Claim as contained at page 137 of the Records of Appeal. Let me state at this point that the trial Court may elect to use or adopt the issues as formulated by either of the parties, as done by the learned trial Judge in the instant case; however such issues elected by the trial Judge must be such that will adequately encapsulate all the issues raised by the parties and aid the Court in the just and fair determination of all the issues before it. See:OKEKE Vs. STATE (2016) LPELR-26057 (SC) Pg. 30-31, Paras. E A where the Supreme Court per PETER-ODILI, JSC held that: Again, to be highlighted is the fact that a respondent has the right to formulate issues and the Court is at liberty to choose either those identified by the appellant or those framed by the respondent or re-organized by the Court to simplify its journey in the consideration of the appeal.? See also EKWEGHIARIRI Vs. UNACHUKWU & ORS (2013) LPELR-22074 (CA)

Pg. 20-21, Paras. F A; ALLIANCE INTERNATIONAL LTD Vs. KOLO INTERNATIONAL ENTERPRISES LTD (2010) LPELR-3749 (CA) Pg. 14-15, Paras. F ? D where this Court held that:
It is settled position of the law, that a Court has the power to adopt, modify or reframe the issues formulated for determination by the parties. The guiding principle is that issues formulated must lead to a proper determination of the dispute or grievance between the parties? In the course of reframing issues, a trial Court should be careful not to make out a case for a party, different from the party?s case

Considering the two issues formulated by the Appellants in their Statement of Claim, I absolutely agree with the Appellants, with due respect to the learned trial Judge, that the second issue therein is not dependent on the first. The power of the Respondents to perform their duty is indubitable, but such performance of duty must be done lawfully, and within the four walls of the law. The learned trial Judge at page 193 rightly found that:
It is not in doubt and not in dispute too that under the

provisions of Section 10 Subsection 5(a) of the Federal Road Safety Commission (Establishment Act) 2007, the 1st Defendant or any of its agents can lawfully effect the arrest of any person suspected of committing or having committed a traffic offence under the Act. Whether the arrest is lawful or not is entirely a different matter.?

In their pleadings, the Appellants alleged that the 1st Appellant?s car was impounded and damaged in the processes; that the 1st Appellant was assaulted and that the 2nd Appellant was equally injured in the process. These allegations formed the fulcrum of the Appellants? second issue in their Statement of Claim which is:
SECOND ISSUE: Whether given the totality of evidence put before the Court, the Plaintiffs have been able to discharge the onus probandi cast on them to establish the multiple delicti of ASSAULT and BATTERY occasioning HARM to the 2nd Plaintiff; unlawful taking, malicious damage and detention of the Plaintiffs? car against the Defendant?s without due process

The issue of assault and battery of the Appellants was conspicuous from the pleadings of the parties as well as the

Appellants second issue in their Statement of Claim as reproduced hereinabove. I therefore disagree with the conclusion reached by the learned trial Judge at page 192 ? 193 of the Records of Appeal that: The issue of detention of the Plaintiffs, the assault and battering of the 2nd Plaintiff, taking, damaging and impounding the Toyota Camry Saloon Car belonging to the 1st Plaintiff depends on the outcome of the resolution of the issue whether the Plaintiff was lawfully arrested.? The issue of assault and battery of the 2nd Plaintiff cannot be subsumed or swept under the carpet; and in my view ought to have been considered and determined by the learned trial Judge.

However, in the circumstances, a close examination of the Appellants Statement of Claim reveals that the Appellants pleaded the facts that 2nd Appellant was assaulted and battered and that the 1st Appellant?s car was damaged and the Appellants claimed general damages in the sum of N2,000,000.00 (Two Million Naira). The Respondents in their Statement of Defense denied these allegations and pleaded that it was the 2nd Appellant who assaulted the Tow Van

Driver while the latter was attempting to tow the 1st Appellants? vehicle and pleaded that the incidence was recorded on video; however, the said video, as found by the learned trial Judge at pages 189 -190 of the Records of Appeal, was not tendered in evidence by the Respondents. Nevertheless, I am of the view that it cannot be said, from the totality of evidence placed before the lower Court as contained in the Records of Appeal, that the Appellants established their claim of ASSAULT and BATTERY occasioning HARM to the 2nd Plaintiff

The Appellants pleaded assault on the 1st Appellant at paragraph 13 of the Statement of Claim; assault and battery on the 2nd Appellant at paragraphs 15, 16 and 17 of the Statement of Claim; and at paragraphs 20 and 21 of the same Statement of Claim, they pleaded that the assault was reported to the Police, that a report was taken by the Police on the 29th of May, 2013, and that the Appellant was diagnosed with mild abrasion of the fibula bone in his right leg at the Lagos State University Teaching Hospital where he started treatment on the 30th of May, 2013. Although the

Respondents denied these averments in their Statement of Defense and pleaded that it was the Appellants who assaulted officers of the Respondents and that the incidence was even recorded on video; the Respondents however failed to tender the purported video recording of the incidence. That notwithstanding, I have stated earlier in this judgment the trite position of the law that a party must succeed on the strength of his case and not on the weakness of the case of the opponent. See: NWOBODO Vs. ONOH & ORS (Supra); CHUKWUEKE Vs. OKORONKWO (Supra); CPC Vs. INEC & ORS (Supra) and PDP Vs. EKEAGBARA & ORS (Supra).

The Appellants who pleaded the facts that they were assaulted and battered; that they reported the incident to the Police and received treatment for the harm/injury occasioned by the battery particularly on the 2nd Appellant failed on their part to lead any credible evidence to establish the assault and battery alleged by them; no receipt of payment for the said treatment, no x-ray or test result whatsoever showing the said diagnoses of mild abrasion of the fibula bone in/on the 2nd Appellants right leg, no evidence that the 2nd

Appellant underwent any treatment at the Lagos State University Teaching Hospital for the harm occasioned from the alleged assault and battery, and, the statement or report made at the Police Station of the incidence was also not in evidence. The law is settled that facts pleaded must be proved by credible evidence; and that the burden of proof lies on the party who alleges. In the instant case, where assault and battery is alleged, the Appellants, as Claimants, would be entitled to damages as claimed in their Statement of Claim only upon proof of their case.
Therefore, in the circumstance, it is my view that this Court, having considered the evidence available on record cannot come to the conclusion that the Appellants were able to discharge the onus cast on them to establish the allegation of assault and battery occasioning harm to the Appellants. Even if the Respondents did not deny the allegations at all, which is not the case in the instant case; and although the Respondents failed to tender the video of the incidence which they pleaded, the Appellants still had the duty to proof their allegations. See the case of MR. WILSON ESI Vs. CNPC/BGP INTERNATIONAL & ANOR

(2014) LPELR-22807 (CA) Pg. 19, Paras. A – F where this Court clearly stated as follows:
Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities. Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally
In this case, since none of the Respondents witnesses denied what occurred, the Appellants need only adduce minimal evidence which must be accepted by this Court

The other aspect of the Appellants second issue before the lower Court which was not considered and decided by the lower Court as seen from their pleadings which is contained at paragraphs 18, 24 and 30 of their Statement of Claim is that damage was done to the 1st Appellants Car; at paragraph 27, the Appellants pleaded that the 1st Appellant took the said damaged Car to the Workshop of Metropolitan Motors Limited where he paid N10, 000.00 (Ten Thousand Naira) as cost of the examination of the Car and upon the said examination, the estimated cost of repairing the car was

given as N424,000.00 (Four Hundred and Twenty Four Thousand Naira). The Appellants tendered the receipt and pro-forma invoice which was admitted as Exhibit B3 to prove these facts.

Having seen the said evidence, I am of the view that the Exhibit B3, without more is not sufficient proof that all the damages listed in the pro-forma invoice occurred as a result of the damage occasioning from impounding the 1st Appellants? Car on the 29th of May, 2013. In my view, there is no nexus between the said pro-forma Invoice which estimated the cost of N424,000.00 (Four Hundred and Twenty-Four Thousand Naira) for the several damages stated to have occurred to the car upon examination by Metropolitan Motors Limited on the 11th of June, 2013 and the alleged damage that occurred at the time the car was impounded and released by the Respondents. On this note therefore, I am inclined to resolve the issue against the Appellants.

Having resolved all the issues in this appeal against the Appellants, this appeal therefore lacks merit and is accordingly dismissed. The Judgment of the lower Court delivered by ABANG, J., on the 22nd day of May, 2017, in Suit No.

FHC/L/CS/1139/2013 is hereby affirmed.
Parties shall bear their respective costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother Tijjani Abubakar JCA.
I adopt the judgment as mine with nothing useful to add.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR JCA. I agree with it.

Appearances:

M. O. BusariFor Appellant(s)

Stephen Ichukwu with him, Vincent AbuguFor Respondent(s)

Appearances

M. O. BusariFor Appellant

AND

Stephen Ichukwu with him, Vincent AbuguFor Respondent