JAMES v. GOV. OF EDO STATE & ORS (2021)

JAMES v. GOV. OF EDO STATE & ORS

(2021)LCN/15127(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Tuesday, May 18, 2021

CA/B/341/2014

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

1. MR. CHARLES APILOKO JAMES 2. MR. OSBERT AGHO APPELANT(S)

And

1. THE GOVERNOR OF EDO STATE 2. COMMISSIONER OF POLICE, EDO STATE 3. DIRECTOR, STATE SECURITY SERVICES, EDO STATE 4. COMMANDANT, NIGERIAN SECURITY AND CIVIL DEFENCE CORPS (EDO STATE) 5. COMMANDANT, NIGERIAN ARMY (4 MECHANISED BRIGADE BENIN CITY) 6. ATTORNEY GENERAL OF EDO STATE RESPONDENT(S)

RATIO

CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF A TRIAL COURT

My lords, in law when the findings of a trial Court are called into question, it would naturally entail questioning the evaluation of evidence as to whether or not there was proper evaluation of evidence leading to the findings complained of. Ordinarily, assessment, evaluation of evidence and ascription of probative value is the turf of trial Courts and therefore, it is only where a trial Court fails in its duty of carrying out proper appraisal of the evidence led before it, weighing it on the imaginary scale of justice, ascribing probative value to the evidence, deciding which evidence is admissible or not admissible and had arrived at perverse or erroneous findings and conclusions on the established evidence before it, that an appellate Court if so called upon would be under a duty, indeed an obligation, to interfere and intervene to reappraise the evidence on the printed record, which the trial Court had failed to do, to arrive at proper findings in line with the dictates of the justice of the case. See Eyiboh V. Abia & Ors. (2012) 16 NWLR (Pt. 1325) 51. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INTERPRETATION OF SECTION 41 (1) AND (2) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) REGARDING THE EFFECT OF A VERBAL ORDER OR WRITTEN EXECUTIVE ORDER OF A GOVERNOR OR INDEED THE EXECUTIVE ARM OF GOVERNMENT IMPOSING RESTRICTIONS ON THE MOVEMENT OF PERSONS BUT NOT MADE PURSUANT TO OR UNDER AN EXISTING LAW MADE BY THE LEGISLATURE

By Section 41 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided thus: Subsection 1: “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from. Subsection (2): “Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society- a) Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or b) Providing for the removal of any person from Nigeria to any other Country to- i. Be tried outside Nigeria for any criminal offence, or ii. Undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty: Provided that there is reciprocal agreement between Nigeria and such other Country in relation to such matter”. Now, looking at the succinct provisions of Section 41 (1) and (2) of the Constitution of Nigeria, 1999 (as amended), what would be reasonably justified or justifiable in my view is not a verbal order or even at best a written executive order made by a Governor but a written law made by the Legislature. Thus, neither a verbal order nor even a written executive order made by a Governor can on its own be justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), unless such a verbal order or written executive order was made or issued under or pursuant to or by virtue of an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). In other words, neither a ‘Verbal Order’ nor ‘Written Executive Order’ of a Governor, or the Executive Arm of Government at whatever level of governance in Nigeria for that matter, restricting movement through the banning of the use of motorcycle for movement can on its own be justified or justifiable by reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), if it was not made or issued pursuant to an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). Thus, once a verbal order or even a written executive order is not made under or pursuant to an existing law, then the issue of its validity in reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), does not even arise. It is ipso facto and abi initio invalid and if properly challenged must ex – debito justitae be set aside. It is only when a verbal order or even a written executive order restricting movement is made pursuant to or under and by virtue of an existing law that the issue of its validity can be determined first with reference to the existing law, whose own validity must in turn be determined under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). This is such that, even if a verbal order or written executive order restricting movement is made under and/or pursuant to an existing law, it is not yet eureka if the existing law is itself challenged as not being reasonably justified or justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), and therefore, unless and until it is shown that the written law under which an executive written order or a verbal order restricting movement was made by the Executive is itself justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), any such verbal order or written executive order made by a Governor, the 1st Respondent herein, and restricting the right to movement is invalid and liable to be set aside if so properly challenged in a Court of law. My lord, all that I have belaboring to says above, perhaps in far too many words, is that any verbal order or even written executive order of a Governor or indeed the Executive arm of Government restricting movement but not made pursuant to or under an existing law is out- rightly invalid and would not command any force of law. Therefore, it cannot in law be validly enforced by any law enforcement agencies of Government acting under the dictates of the rule of law. Thus, any purported breach or infringement of such an invalid verbal order or written executive order restricting movement cannot, in law, form the valid basis for any criminal trial or punishment by any agencies of Government. So it is, in my finding, with the verbal order of the 1st Respondent, the Governor of Edo State restricting movement by banning the use of motorcycles, when he made the said verbal order contrary to the provisions of Section 41 (1) of the Constitution of Nigeria, 1999 (as amended) and not under any written law that is justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). In the circumstances therefore, the verbal order made by the 1st Respondent on 11/6/2013 banning the use of motorcycle and thereby restricting the movement of that class of persons, notwithstanding how laudable I have found it be but, being one not based on any existing written law, justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended) and thus contrary to Section 41 (1) of the Constitution of Nigeria 1999, (as amended) is irredeemably invalid and therefore, without any force of law and is thus liable to be set aside. It has no place in the constitutional democracy being operated in this Country in which the rule of law is king. In law, no offence punishable by law either by imprisonment or by any other form of penalty, including seizure of purportedly offending item, can be created orally but must be the subject or pursuant to a written law as required by law. See Section 36(12) of the Constitution of Nigeria, 1999 (as amended). See also Aiko V. Fagbemi (1961) All NLR 400; Capt. Asake V. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408; Udoku V. Onugha (1963) 2 All NLR 107; Prince Joshua Paulson V. The State (2011) LPELR – 4875 (CA); FRN V. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113; Major Adebayo V. Nigerian Army & Anor (2012) LPELR – 7902 (CA); Hon Hembe V. FRN (2014) LPELR – 22705 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

IMPORTANCE OF THE OBSERVANCE OF THE RUE OF LAW; IMPORTANCE OF THE PROTECTION OF THE RIGHT OF THE CITIZEN TO FREEDOM OF MOVEMENT

It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the led. This is because in Nigeria, as it is England, amidst the clash of arms, including even in time of war, the Court will not be silent. See Attorney General V. De Keyser’s Royal Hotel (1920) AC 508 per the House of Lords. See also Margaret Stitch V. A.G, Federation & Ors (1986) 5 NWLR (Pt. 46) 1007 @ p. 1026 per Aniagolu J.S.C.; Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR -45528(CA), per Georgewill, J.C.A. I must reiterate that right of the citizen to freedom of movement is inalienable by virtue of the provisions of Section 41(1) of the Constitution of Nigeria, 1999 (as amended), and thus can only be abrogated and or derogated from as provided by the provisions of Section 41(2) of the Constitution of Nigeria, 1999 (as amended). Interestingly, this right inures to both the leaders, when they are in power and even when they are out of power as well as the led in this Country. Therefore, in deserving cases, a proved breach of this right without lawful justification is usually met with severe deprecation and award of commensurate damages by the Court. See Faith Okafor V. Lagos State Government & Anor (2016) LPELR – 41066(CA) per Georgewill, J.C.A. Above all and when all is said and done, in law as in every society governed by democratic norms in which the Government is of the people, by the people and for the people, every offence, every restriction on movement and every penalty to be imposed thereon must be within the confines and ambits of the operation of the Rule of Law in a democratic society such as Nigeria. See Raymond Temisan Omatseye V. Federal Republic of Nigeria (2017) LPELR -42719(CA) per Georgewill, J.C.A. In modem contemporary jurisprudence, the rule of law is the condition in which all members of the society, including the rulers and the led accept the supremacy of the law. It is neither an option nor one of choice. It is a concept in which the citizen is entitled to the observance of the principles of natural justice in the determination of any question involving his rights and obligations under the law. It denotes absolute supremacy or predominance of law. Thus, under it, the Constitution is the supreme law and the observance of the laws of the land must be the guiding code in the daily life of both the Rulers and the Led, so much so that none whosoever is exempted from the observance of the laws of the land. This is indeed the true essence of the rule of law. See Prof A. V. Dicey: Introduction to the Study of Law of the Constitution 10th Edition Macmillan Education Ltd, 1959 @ p. 202. See also Garba & Ors. V. University of Maiduguri (1986) 1 NWLR (Pt.18) 550; Godwin Josiah V. The State (1985) 1 NWLR (Pt.11) 125 @ p.141. In Kalu V. The State (1988) 1 NWLR (Pt. 90) 503 @ p.561, the Supreme Court had per Oputa J.S.C., (God bless his soul), opined inter alia thus: “It should be one and the same even handed justice, blind to all social distinctions and disparities in wealth and status and no respecter of persons.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHAT MUST BE CONSIDERED IN DETERMINING WHETHER OR NOT A DECISION OR DIRECTIVE OR ORDER HAS BEEN MADE IN BREACH OF THE RIGHT TO FAIR HEARING AS CONSTITUTIONALLY GUARANTEED TO THE CITIZENS OF THIS COUNTRY IN THE DETERMINATION OF THEIR CIVIL RIGHTS AND OBLIGATIONS.

The fulcrum of this question is the vexed issue of when in law can a decision or directive or order be said to been made in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1. In considering whether or not a decision or order or directive was in breach of the right to fair hearing of a citizen, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because, fair hearing is primarily a matter of fact and thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the right to fair hearing of the citizen. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Benin Judicial Division Coram: A. M. Liman J., in Suit No. FHC/B/CS/89/2013: Mr. Charles Apiloko James & Anor V. The Governor of Edo State & Ors delivered on 21/1/2014, in which of the claims of the Appellants as Applicants against the Respondents as Respondents before the Court below were dismissed for lacking in merit.

The Appellants were dissatisfied with the said judgment and had appealed against it vide their Notice of Appeal filed on 6/3/2014 on two grounds of appeal at pages 102 – 104 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court within time. Subsequently, an Amended Notice of Appeal on five grounds of appeal was filed on 17/10/2016 with the leave of this Court but was deemed as properly filed on 2/11/2017. The Appellant’s brief was filed on 8/5/2019 but was deemed as properly filed on 18/2/2020. The Respondents’ brief was filed on 15/3/2021 but was deemed as properly filed on 18/32021. The Appellants’ reply brief was filed on

18/3/2021 and was deemed as properly filed on the same date of 18/3/2021.

At the hearing of this appeal on 18/3/2021, Bamidele Uche Igbinedion Esq., learned counsel for the Appellants adopted the Appellant’s brief and reply brief as his arguments and urged the Court to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellants against the Respondents. On his part, I. O. Kadiri Esq., Principal State Counsel, Ministry of Justice, Edo State, learned counsel for the Respondents adopted the Respondents’ brief as his arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By an Originating Motion brought pursuant to Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 filed on 27/6/2013, the Appellants as Applicants claimed against the Respondents, the following relief, to wit:
A. A Declaration that the 1st Respondent’s action on Tuesday 11th June, 2013, of verbally announcing a ban on the use of motorcycles (including the 1st Applicant’s Motorcycle) from plying all the roads in Oredo, Ikpoba- Okha and Egor Local Government Areas

of Benin City and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyaen village (Coca-Cola Area) in Uhunmwonde Local Government Area, effective from 12 p.m on Sunday, 16th of June, 2013, was ultra vires the powers of the said 1st Respondent and constituted a gross violation of the Applicants’ right to fair hearing and freedom of movement guaranteed under Sections 36 (1) and 41 of the of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 7 and 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 and therefore unconstitutional and illegal.
B. A Further Declaration that the action of the agents of the 2nd, 3rd, 4th, 5th and 6th Respondents in enforcing the 1st Respondent’s verbal ban on the use of motorcycles and thereby obstructing/preventing the Applicants from using motorcycles along New Lagos Road and Adesuwa Roads in Oredo Local Government Area of Edo State respectively at 8.00 and 9.00 a.m. on 17th of June, 2013 with the threat to confiscate and destroy the 1st Applicant’s motorcycle with Reg. No. QC 093 GBZ for violating the

1st Respondent’s verbal ban, constituted a gross violation of the Applicants’ right to fair hearing and freedom of movement guaranteed under Sections 36 (1) and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 7 and 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 and therefore unconstitutional and illegal.
C. An Order of perpetual injunction restraining the Respondents, by themselves, their agents, servants or privies howsoever from giving any or further effect to the 1st Respondent’s verbal ban on the use of motorcycles and/or obstructing or preventing the Applicants from using or moving about with motorcycles in Oredo, Ikpoba-Okha and Egor Local Government Areas of Benin City and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyaen village (Coca-Cola Area) in Uhunmwonde Local Government Area of Edo State or anywhere in Edo State in any manner whatsoever.
D. An Order of Court setting aside the 1st Respondent’s verbal ban on the use of motorcycles (including the 1st Applicant’s motorcycle) from

plying all the roads in Oredo, Ikpoba-Okha and Egor Local Government Areas of Benin City and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyaen village (Coca-Cola Area) in Uhunmwonde Local Government Area effective from 12 p.m on Sunday 16th of June, 2013 or in any other part of Edo State.
E. An award of N50,000,000 against the Respondents as general and/or exemplary damages/compensation for the breach of the Applicants’ Fundamental Rights.
F. The costs of this action. See pages 1 – 2 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the 1st Appellant as 1st Applicant before the Court below, as can be gleaned from the depositions in his Affidavit in support, Statements in Support and Further and Better Affidavit as in the Record of Appeal, was that the 1st Appellant is the owner of a Honda CM motorcycle with Registration No. QC 093 GBZ with a National Driver’s License to use the said motorcycle on any road in Nigeria and duly issued with a Hackney/Stage Carriage License and a Vehicle License Number by the Edo State Government to ply all roads in Edo State. That on 11/6/2013, the 1st

Respondent verbally announced a ban on the use of motorcycles from plying all the roads in Oredo, Ikpoba-Okha and Egor Local Government Areas of Benin City, Edo State and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyean village (Coca-cola Area) in Uhunmwode Local Government Area, effective from 12 p.m on 16/6/2013 and that motorcycle found in the named areas would be confiscated and destroyed by the agents of the 2nd, 3rd, 4th and 5th Respondents.

On 17/6/2013, the 1st Appellant was on his way to his place of work at the Benin-Asaba Bye-pass on his duly licensed motorcycle when he was accosted by some security officers consisting of the 2nd, 3rd, 4th and 5th Respondents and was forced by them to stop and they then seized his motorcycle on the ground that he was in violation of the verbal ban made by the 1st Respondent and despite the 1st Appellant’s explanations he was ordered to ride his motorcycle to New Benin Police Station but before the Policeman could climb onto his motorcycle, he zoomed off and took another street to return to his house and thereafter, he did not venture out of his house with his duly licensed motorcycle

for fear that it will be confiscated and destroyed by Officers and Agents of the 2nd- 5th Respondents. See pages 4 – 7 and 55- 56 of the Record of Appeal.

The case of the 2nd Appellant as 2nd Applicant before the Court below as can be gleaned from the depositions in his Affidavit in support as in the Record of Appeal was that, he is a marketer who employs the services of duly licensed commercial motorcycles to enable him transport his products or wares to his clients. However, on 20/6/2013 while on board a commercial motorcycle to convey him to convey his wares to his clients, he was stopped by about six security officers of the 2nd – 5th Respondents, who told him and the motorcycle rider to alight therefrom and seized the said motorcycle on the ground that they were in violation of the verbal ban by the 1st Respondent, which gave them the authority to confiscate and destroy any motorcycle found plying the roads in Benin City and its environs. Consequently, one of the Officers climbed onto the said motorcycle and rode it away and he had to walk back home with his wares being unable to deliver them to his clients. See pages 11 – 14 of the Record of Appeal.

The case of the 1st- 6th Respondents as Respondents before the Court below, as can be gleaned from the depositions in the Counter Affidavit and Further Counter Affidavit as in the Record of Appeal, was that Officers of the 2nd- 5th Respondents had on 17/6/2013 and 20/6/2013 respectively acted on the verbal instruction of the 1st Respondent issued on 11/6/2013 banning the use of motorcycles on all roads in Oredo, Ikpoba-Okha and Egor Local Government Area of Benin City and Oluku and Ekosodin Villages via Ovia North-East Local Government Area and Eyaen Village (Coca-Cola) in Uhunmwonde Local Government Area effective from 12 pm on 16/6/2013 and thereafter. That the Appellants had in their erroneous believe that, the 1st Respondent had no power to make the said verbal order had undermined and flagrantly violated the said order on the respective dates and where duly apprehended by Officers of the 2nd-5th Respondents but that whilst the 1st Appellant escaped arrest and drove his motorcycle back to his house, the 2nd Appellant, not being the owner of the motorcycle was not arrested by the Officers of the 2nd- 5th Respondents and went on his way without

any hindrance while the offending motorcycle was seized and taken to the Police Station. See pages 46- 48 and 74 – 76 of the Record of Appeal.

At the Court below, the matter came up for hearing on 8/7/2013 and could not be taken, but was eventually heard on 10/7/2013, when learned counsel for the respective parties adopted their written addresses and the matter was adjourned for judgment. On 21/1/2014, the Court below delivered its judgment, in which it dismissed the preliminary objection of the Respondents but proceeded to enter judgment against the Appellants and consequently dismissed their claims against the Respondents for lacking in merit, hence this appeal. See pages 79 – 80, 81 – 101 and 102 – 104 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, two issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether the verbal ban of the use of motorcycle by the 1st Respondent and the agents of the 2nd -6th Respondents, the subsequent implementation of the purported ban by seizing and destroying motorcycles did not amount to a violation of Right to Fair Hearing

and Freedom of Movement contrary to, and in a violation of Chapter IV of the Constitution of Federal Republic Nigeria 1999 (as amended)? (Distilled from Grounds B and C).
2. Whether the Court below properly evaluated the evidence which was adduced by the parties when it failed to give judgment in favour of the Appellants and grant the reliefs claimed? (Distilled from Ground A, D & E).

In the Respondents’ brief, a sole issue was distilled as arising for determination in this appeal, namely:
“Whether the Court below correctly evaluated the evidence placed before it in the trial of the suit, which judgment is the object of this appeal? (Distilled from Grounds A, D & E).

I have taken time to consider the claims, Affidavit, Counter – Affidavit, Further and Better Affidavit and Further Counter – Affidavit of the parties as to issues joined therein by them as in the printed Record of Appeal. I have also considered the submissions of counsel in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the only proper issue arising for determination in

this appeal is the sole issue for determination as distilled in the Respondents’ brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the Appellants’ I hereby adopt and set down the sole issue in the Respondents brief as the sole issue for determination in this appeal. However, I take the liberty to and do hereby redraft the sole issue thus: “Whether the Court below properly evaluated the evidence placed before it and arrived at correct findings and decisions in its judgment appealed against?”

SOLE ISSUE
(Covers Appellants’ issue One and Two)
Whether the Court below properly evaluated the evidence placed before it and arrived at correct findings and decisions in its judgment appealed against?

APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellants had submitted that by Section 41(1) of the Constitution of Nigeria, 1999 (as amended) every citizen of Nigeria is entitled to the freedom of movement to move freely throughout Nigeria and contended that Section 41 (2) of the said Constitution is not a carte

blanche for a law that is not reasonably justifiable in a democratic society and for any derogation from the right to freedom of movement must comply with the provisions of Section 41(2) of the Constitution of Nigeria, 1999 (as amended) and urged the Court to hold that the action of the Respondents against the Appellants does not fall within the legally justifiable parameters as provided in Section 41(2) of the Constitution of Nigeria, 1999 (as amended) and was therefore, unconstitutional and to allow the appeal, set aside the judgment of the Court below and grant the claims of the Appellants against the Respondents. Counsel referred to Section 41 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA).

It was also submitted that, by law, the right to freedom of movement relates to all corners, nooks and crannies within Nigeria, neither does the clear, unambiguous provisions restrict the inalienable right to freedom of movement to any particular mode or means of movement and contended that the Appellants being citizens of this Country have the

inalienable right to move freely being not under any legal disability of any kind to derogates from their constitutionally guaranteed right and urged the Court to hold the Appellants have the right to use any mode of transport in exercise of their right to freedom of movement so long as they are not in violation of any written law in Nigeria, and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 41 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA).

It was further submitted that the verbal ban of the use of motorcycle by the 1st Respondent and the subsequent implementation by seizing and destroying motorcycles by the agents of the 2nd -6th Respondents amounted to violation of the Right to fair hearing and freedom of movement and a violation of the Constitution and contended that the position of the of Respondents that the Appellants’ rights were not violated because they can explore other means of transportation was tantamount to allowing illegality to stand on another illegality and urged the

Court to hold that it is just and proper that the verbal order of the 1st Respondent which is unconstitutional and contrary to the provisions of Section 41 (1) of the Constitution of Nigeria, 1999 (as amended) should be struck down and declared null, void and of no effect whatsoever and to allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellants against the Respondents. Counsel referred to Section 36(1) and 41(1) of the Constitution of Federal Republic Nigeria, 1999 (as amended) and relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA).

It was also further submitted that the verbal order or directive made by the 1st Respondent on 11/6/2013 to take effect from 16/6/2013 and banning the use of all motorcycles in the Benin metropolis and its environs with the penalty of confiscation and destruction of any offending motorcycle is not supported by any known law made by the Edo State House of Assembly and contended that in law, such a verbal order or directive does not because it was issued by the 1st Respondent, the Governor of the State, transform into a Law and urged the Court to hold

that the said verbal order or directive does not have the force of law to prescribe an offence and/or penalty for those who are in breach of it and to allow the appeal, set aside the perverse judgment of the Court below, grant the claims of the Appellants against the Respondents. Counsel referred to Sections 36 (1) and (12) and 41(1) of the 1999 Constitution (as amended), The Preamble 3(e) to the Fundamental Rights (Enforcement Procedure) Rules, 2009 and relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA).

It was also submitted that in law, in the determination of a citizens’ rights and obligations, including any question or determination by or against any Government or authority, a citizen shall be entitled to fair hearing within a reasonable time and contended that even administrative bodies charged with power to determine a citizen’s rights and obligations must afford the citizen with the opportunity to make representations before decisions affecting such a citizen is made and urged the Court to hold that the action of the Respondents against the Appellant without any written law authorizing them on that behalf and

without giving the Appellants a hearing, constituted a gross violation of the rights of the Appellants to fair hearing and to allow the appeal and set aside the perverse judgment of the Court below and grant the claims of the Appellants against the Respondents. Counsel referred to Sections 36 (1) and (12) of the 1999 Constitution (as amended) and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA).

On his issue two, learned counsel for the Appellants had submitted that the Appellants’ case was a clear cut one brought to seek remedy against a brazen and flagrant violation of clear constitutional provisions by the Respondents and contended that in law, the Appellants, having substantiated their claims on a balance of probabilities on their unchallenged affidavit were, contrary to the perverse findings of the Court below, entitled to the reliefs claimed by them against the Respondents and urged the Court to hold that, had the Court below properly evaluated the mostly unchallenged affidavit evidence of the Appellants, it

would not have arrived at the perverse findings and that to allow the appeal, re-evaluate the entirety of the evidence led by the parties and make proper findings and grant the claims of the Appellants, including the damages claimed against the Respondents in the interest of justice. Counsel relied on Okafor V. Lagos State Government & Anor (2016) LPELR-41066 (CA); Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512 @ pp. 535–536; Minister for Health & Ors V. Treatment Action Campaign & Ors (2003) CHR 155

It was also submitted that the Court below failed to properly evaluate the evidence adduced by the parties and also failed to make proper findings and contended that upon a proper evaluation of the Appellants’ affidavit evidence, which were largely not denied by the Respondents and thus, deemed as admitted and requiring no further proof, it is clear that the Appellants met the required standard of proof as required of them by law on balance of probability and urged the Court to hold that Court below having failed to carry out its primary duty of evaluating and ascribing probative value to the evidence led before it, this Court is in

a good position to do so and find that the Appellants had suffered injury and for which they were in law entitled to monetary compensations and to allow the appeal, set aside the perverse judgment of the Court below and enter judgment in favor of the Appellants against the Respondents . Counsel referred to Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2016 and Section 15 of the Court of Appeal Act and relied onUBN Plc V. Ajabule & Anor (2011) LPELR-8239 (SC); Akinterinwa & Anor V. Oladunjoye (2000) LPELR-358 (SC), UBN PLC V. Chimaeze (2014) LPELR-22699 (SC), Ahanonu V. Chukwuemezie (2015) LPELR-40997 (CA); Inegbedion V. Selo-Ojemen & Anor (2013) LPELR-19769 (SC); Eze V. Unijos (2017) LPELR-42345 (SC); Din V. African Newspapers of (Nig.) Ltd. (1990) LPELR-947 (SC); Alahassan & Anor V. Ishaku & Ors (2016) LPELR-40083 (SC); Okereke V. State (2016) LPELR-40012 (SC); Oliyide & Sons Ltd V. OAU, Ile-Ife (2018) LPELR-43711 (SC); Awoyale V. Ogunbiyi (1986) LPELR-662 (SC); Board of Management of Federal Medical Centre, Makurdi V. Kwembe (2015) LPELR-40486 (CA); Fagunwa & Anor V. Adibi & Ors (2004) LPELR-1229 (SC); New Nigerian Bank Ltd Vs. Edoma (2001) NWLR (Pt. 695) 535.

RESPONDENTS’ COUNSEL SUBMISSIONS
On the sole issue, learned counsel for the Respondents had submitted that the Court below did carry out proper evaluation of the entirety of the evidence led and arrived at correct findings and contended that in an appeal of this nature, this Court is under a duty to consider what were the evidence led, whether they were accepted or rejected upon the correct perception, whether the Court below correctly approached the assessment and ascription of probative value on it and used the imaginary scale of justice to weigh the evidence on either side and appreciated upon the preponderance of evidence which side of the scale weighed, having regard to the burden of proof and urged the Court to hold that in the judgment appealed against, the Court below creditably carried out its duty and arrived at proper findings and once the decision is right, it is immaterial if the reasons are wrong and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Adebayo V. Adusei (2004) 4 NWLR (Pt. 862) 44 @ p. 60; Agbonifo V. Aiwereoba (1988) 1 NWLR (Pt.70) 325;

M.I.S.R. Nig. Ltd V. Ibrahim (1975) FSC55; Egonu V. Egonu (1978) 11-12 SC 111; EKPO V. STATE (2003) 17 NWLR (Pt. 849)392; A.G, Bendel State V. A.G, Federation (1982) 3 NCLR 1; Lebile V. Regd Trustees C &SCN 13 NSCQR 19; Ukejianya V. Uchendu (1950) 13 WACA 45.

It was also submitted that aside the fact that the judgment of the Court below was correct and right, the reasons are also impeccable and not shown to be in any way wrong or perverse by the Appellants and contended that in law, this Court has no business interfering with the correct and sound decision of trial Courts and urged the Court to hold that as found rightly by the Court below, the Appellant were under the misconception that their arrest was not for contravening any law or regulation banning their use of motorcycles on the road when by law, it was criminal for the Appellants to disobey the lawful orders of the 1st Respondent and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 203 of the Criminal Code Law of Bendel State, 1976 (as applicable to Edo State).

It was further submitted that in law, the 1st Respondent has the power to make the verbal

order made by him on 11/6/2013 and contended that once the verbal order was issued by the 1st Respondent it had the force of law and the Appellants were duty bound to obey it and urged the Court to hold that on the state of the existing laws in Edo State, it was an outright misconception to hear the Appellants contend that they contravened no known law and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Sections 5(2) and 14(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 203 of the Criminal Code Law of Bendel State, 1976 (as applicable to Edo State).

It was also further submitted that the 1st Appellant who had committed several offences with his motorcycle is also still in custody of his motorcycle till date with impunity after his escape from lawful arrest and who has refused till date to submit the offending motorcycle to the authorities, had approached the Court below with stained hands and contended that the Court below having properly evaluated the evidence of the parties and arriving at correct findings and decisions, the contrary contentions of the Appellants was of no

moment since the findings and decisions of the Court below were duly arrived at, judicially and judiciously upon the facts placed before it and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Salako V. Williams (1998) 11 NWLR (Pt. 574) 505.

It was submitted that the 2nd Appellant admitted that he does not own the motorcycle that was confiscated by the Respondents which he only hired to convey him and his goods and contended that on these depositions alone, it was clear that the 2nd Appellant did not suffer any loss from the events of 20/6/2013 and therefore, has no rights that were purportedly violated as alleged since it was the 2nd Appellant who had in the first place instigated the offence when he procured the hiring of the confiscated motorcycle against the lawful order of the 1st Respondent and urged the Court to hold that on the evidence led, the Court below had no discretion to exercise in favor of the 2nd Appellant as he cannot in law gain advantage of his own wrong and to dismiss his appeal and affirm the sound judgment of the Court below. Counsel Relied Gaaba V. Lobi Bank (Nig.) Ltd (2003) FWLR (Pt. 173) 106;

Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212; Buswell V. Godwin (1971) 1 All ER 418.

It was also submitted that on the entirety of the evidence led, the Appellants did not suffer from any wrong they alleged and there was no semblance of the Appellants being deprived of any of their fundamental rights or entitlements and contended that the Court below was therefore, right when it found that the Appellants’ claims and reliefs remained unproven and thereby dismissing their suit and urged the Court to hold that the Appellants failed to prove their allegations of breach of their fundamental rights against the Respondents as none was shown to have been breached and to dismiss the appeal and affirm the sound judgment of the Court below. Counsel relied on Union Bank of Nigeria V. Professor A. Ozigi (1994) 3 NWLR (Pt. 333) 385; Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723; Nigerian Maritime Services Ltd V. Afolabi (1978) 2SC 79 @ p. 84; Mogaji V. Odofin (1978) 4 SC 91; Baba V. NCATC (1986) 5 NWLR (Pt. 42) 314.

It was also further submitted that, in an appeal, it is not the duty of this Court to hear evidence or to interfere with the

correct findings of a trial Court but to correct established errors in the judgment appealed against, arising from the complaints and/or attacks by an Appellant and contended that since the Appellants had failed to substantiate any or all of their alleged complaints and/or attacks on the judgment of the Court below, there was no duty on this Court to either to interfere or invoke its powers to draw inferences from the evidence and enter judgment for the Appellants as urged upon this Court by the Appellants and urged the Court to rather dismiss this unmeritorious appeal and affirm the sound judgment of the Court below. Counsel referred to Order 4 Rules 3 & 4 of the Court of Appeal Rules 2016, Section 15 of the Court of Appeal Act 2004 and relied onAkad Industries Ltd V. Olubode (2004) 4 NWLR (Pt. 862)1; Ngillari V. NICON (1998) 8 NWLR (Pt. 560) 1; Okpaloka V. Umeh (1976) 9-10 SC 269; Eba V. Ogodo (1984) 1 SCNLR 372.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellants had submitted that the issue of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State as rendering the

acts of the Appellants a criminal offence punishable by imprisonment for one year was never canvassed by the Appellants before the Court below and did not also form the basis for the judgment of the Court below and therefore, cannot in law be canvassed in this appeal without first seeking and obtaining the leave of this Court to do so and contended that the Respondents who did not file any Respondents’ Notice cannot also in law support the judgment of the Court below relying on grounds other than the grounds relied upon in the judgment appealed against and urged the Court to so hold and to discountenance the issue of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State, raised by the Respondents merely in the Respondent’s brief without any Respondents’ Notice. Counsel referred to Order 9 Rule 2 of the Court of Appeal Rules 2016 and relied on Veepee Industries Limited V. Cocoa Industries Limited (2008) All FWLR (Pt. 425) 1667 @ pp. 1672-1673.

However, it was also submitted that, assuming the issue of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State was properly raised, there is

no evidence showing any nexus between the 1st Respondent’s verbal order and the provisions of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State and contended that the regrettable attempt to link both of them by the Respondents was made under erroneous impression that the Appellants had committed a criminal offence in failing to obey the verbal order of the 1st Respondent and urged the Court to hold that all the submissions of the Respondents on this fresh issue were preposterous and should be discountenanced since in law the verbal order of the 1st Respondent, as uttered into the air by the Governor by way of an announcement, is not law even within the context of Sections 5 (2) and 14 (2) (b) of the Constitution of Nigeria, 1999 (as amended) erroneously referred to by the learned counsel for the Respondents and which verbal order cannot even be found anywhere to constitute a criminal offence and to allow the appeal, set aside the perverse judgment of the Court below and grant the proved claims of the Appellants against the Respondents.

RESOLUTION OF SOLE ISSUE
My lords, in law when the findings of a trial

Court are called into question, it would naturally entail questioning the evaluation of evidence as to whether or not there was proper evaluation of evidence leading to the findings complained of. Ordinarily, assessment, evaluation of evidence and ascription of probative value is the turf of trial Courts and therefore, it is only where a trial Court fails in its duty of carrying out proper appraisal of the evidence led before it, weighing it on the imaginary scale of justice, ascribing probative value to the evidence, deciding which evidence is admissible or not admissible and had arrived at perverse or erroneous findings and conclusions on the established evidence before it, that an appellate Court if so called upon would be under a duty, indeed an obligation, to interfere and intervene to reappraise the evidence on the printed record, which the trial Court had failed to do, to arrive at proper findings in line with the dictates of the justice of the case. See Eyiboh V. Abia & Ors. (2012) 16 NWLR (Pt. 1325) 51.

Having taken time to consider the entirety of the affidavit, further and better affidavit, counter – affidavit and further counter –

affidavit evidence of the parties in the light of the findings and conclusions in the judgment of the Court below, I am of the considered opinion that a consideration of the sole issue for determination in this appeal, encompassing the two issues as formulated by the Appellants, would involve the due consideration and answering of the following three questions, namely:
1. Was the verbal order of the 1st Respondent banning the use of motorcycles for movement lawful or unlawful in view of the provisions of Section 41(1) of the Constitution of Nigeria, 1999 (as amended)?
2. Did the verbal order of the 1st Respondent, in the circumstances of the proved evidence in this case, constitute a breach of the all or any of the Appellants’ right to fair hearing?
3. Did the verbal order of the 1st Respondent, in the circumstances of the proved evidence in this case, constitute a breach of all or any of the Appellants’ right to freedom of movement?

I shall consider and answer these three questions ad seriatim, commencing with the first question anon. On the first question, which is, was the verbal order of the 1st Respondent banning the

use of motorcycles for movement lawful or unlawful in view of the provisions of Section 41(1) of the Constitution of Nigeria, 1999 (as amended), on the evidence led by the parties, I have no doubt in my mind that the idea behind the alleged verbal order of the 1st Respondent, the Governor of Edo State made on 11/6/2013 and the subject matter of this case may be laudable in order to, as vehemently deposed to in the Counter Affidavit of the 1st – 6th Respondents, and which was not in any way controverted by the Appellants, reduce avoidable fatal accidents and the resultant loss of lives and limbs, to check its hijack by miscreants who use it to perpetuate heinous crimes like armed robbery, kidnapping, murder, rape, stealing etc., and the easy mean of evading arrest because of the flexibility of the use of motorcycles and to save the good people of Edo State from the profound negative effects of the use of motorcycles in the urban areas of Benin City, yet the question is, whether or not the due process of law, which at all times must be followed in order not to foist on the people, autocratic tendencies and the resultant arbitrariness in governance which are clearly

inimical to the rule of law and constitutional democracies, was followed in the verbal order of the 1st Respondent made on 11/6/2013 to render it lawful?

found guilty:
Provided that there is reciprocal agreement between Nigeria and such other Country in relation to such matter”.
Now, looking at the succinct provisions of Section 41 (1) and (2) of the Constitution of Nigeria, 1999 (as amended), what would be reasonably justified or justifiable in my view is not a verbal order or even at best a written executive order made by a Governor but a written law made by the Legislature. Thus, neither a verbal order nor even a written executive order made by a Governor can on its own be justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), unless such a verbal order or written executive order was made or issued under or pursuant to or by virtue of an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended).
In other words, neither a ‘Verbal Order’ nor ‘Written Executive Order’ of a Governor, or the Executive Arm of Government at whatever level of governance in Nigeria for that matter, restricting movement through the banning of the use of motorcycle for movement can on its own be

justified or justifiable by reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), if it was not made or issued pursuant to an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). Thus, once a verbal order or even a written executive order is not made under or pursuant to an existing law, then the issue of its validity in reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), does not even arise. It is ipso facto and abi initio invalid and if properly challenged must ex – debito justitae be set aside.
It is only when a verbal order or even a written executive order restricting movement is made pursuant to or under and by virtue of an existing law that the issue of its validity can be determined first with reference to the existing law, whose own validity must in turn be determined under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). This is such that, even if a verbal order or written executive order restricting movement is made under and/or pursuant to an existing law, it is not yet eureka if the existing law is itself challenged

as not being reasonably justified or justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), and therefore, unless and until it is shown that the written law under which an executive written order or a verbal order restricting movement was made by the Executive is itself justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), any such verbal order or written executive order made by a Governor, the 1st Respondent herein, and restricting the right to movement is invalid and liable to be set aside if so properly challenged in a Court of law.
My lord, all that I have belaboring to says above, perhaps in far too many words, is that any verbal order or even written executive order of a Governor or indeed the Executive arm of Government restricting movement but not made pursuant to or under an existing law is out- rightly invalid and would not command any force of law. Therefore, it cannot in law be validly enforced by any law enforcement agencies of Government acting under the dictates of the rule of law. Thus, any purported breach or infringement of such an invalid verbal

order or written executive order restricting movement cannot, in law, form the valid basis for any criminal trial or punishment by any agencies of Government. So it is, in my finding, with the verbal order of the 1st Respondent, the Governor of Edo State restricting movement by banning the use of motorcycles, when he made the said verbal order contrary to the provisions of Section 41 (1) of the Constitution of Nigeria, 1999 (as amended) and not under any written law that is justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended).
In the circumstances therefore, the verbal order made by the 1st Respondent on 11/6/2013 banning the use of motorcycle and thereby restricting the movement of that class of persons, notwithstanding how laudable I have found it be but, being one not based on any existing written law, justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended) and thus contrary to Section 41 (1) of the Constitution of Nigeria 1999, (as amended) is irredeemably invalid and therefore, without any force of law and is thus liable to be set aside. It has no place in the

constitutional democracy being operated in this Country in which the rule of law is king. In law, no offence punishable by law either by imprisonment or by any other form of penalty, including seizure of purportedly offending item, can be created orally but must be the subject or pursuant to a written law as required by law. See Section 36(12) of the Constitution of Nigeria, 1999 (as amended). See also Aiko V. Fagbemi (1961) All NLR 400; Capt. Asake V. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408; Udoku V. Onugha (1963) 2 All NLR 107; Prince Joshua Paulson V. The State (2011) LPELR – 4875 (CA); FRN V. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113; Major Adebayo V. Nigerian Army & Anor (2012) LPELR – 7902 (CA); Hon Hembe V. FRN (2014) LPELR – 22705 (CA).

I now come to the issue of Section 203 of Criminal Code Law of Bendel State applicable to Edo State raised by the Respondents in this appeal. Now, Section 203 of the Criminal Code Law of Bendel State, 1976 (as applicable to Edo State), provides thus:
“Any person who without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any

person authorized by any order, is guilty of a misdemeanor, unless some mode of proceeding against him for such disobedience is expressly provided by Order, Act, Law or estate and all other punishment the offender is liable to imprisoned for one year.”

Firstly, I cannot but agree with the apt and unassailable submissions of learned counsel for the Appellants that the issue of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State as rendering the acts of the Appellants a criminal offence punishable by imprisonment for one year was never canvassed by the Appellants before the Court below and should therefore, go to no issue in this appeal. It is also correct as submitted by learned counsel for the Appellants, it did not also form the basis for the judgment of the Court below and therefore, cannot in law be canvassed in this appeal without the Respondents’ first seeking and obtaining the leave of this Court to do so. Worse still, and as also rightly submitted by the learned counsel for the Appellants, the Respondents who did not file any Respondents’ Notice cannot also in law be heard to support the judgment of

the Court below relying on grounds other than the grounds relied upon in the judgment appealed against.
In the circumstances therefore, I hold that the issue of the applicability of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State to validate both the judgment of the Court below and the verbal order of the 1st Respondent restricting movement and clearly contrary to the provisions of Sections 41 (1) and (2) of the Constitution of Nigeria, 1999 (as amended), raised by the Respondents goes to no issue and is thus as dead as dodo and it is hereby in its entirety discountenanced. The Respondents cannot shift the goal post now. See Order 9, Rule 2 of the Court of Appeal Rules 2016. See also Veepee Industries Limited V. Cocoa Industries Limited (2008) All FWLR (Pt. 425) 1667 @ pp. 1672-1673.

Be the above as it may, I have taken time to consider the submissions of counsel for the parties on this issue of the applicability of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State to validate the verbal order of the 1st Respondent restricting movement and it does appear to me and I so hold that

the provisions of Section 203 of the Criminal Code, Laws of Bendel State as applicable to Edo State did not criminalize the movement of the citizen through riding of motorcycle and therefore, in law cannot support the outlandish verbal directive of the 1st Respondent clearly infringing on the right to freedom of movement as enshrined in the Section 41 (1) of the Constitution of Nigeria, 1999 (as amended), which can only be abrogated from in accordance with the provisions of Section 41 (2)(a), 2 (b)(i) and 2(b) (ii) of the Constitution of Nigeria, 1999 (as amended) and in no other way such as by verbal proscription.
My lords, in a constitutional democracy, such as the one being operated in Edo State nay Nigeria, what does it take or would it take for the 1st Respondent to present such proposals as intended in the verbal order/ban in the form of a bill before the Edo State Assembly for same to follow the due process of law and be passed into law and be assented to by the 1st Respondent? This is democracy where Rule of law is king! I must reiterate that those who are elected into Office in a democracy holds their office by virtue of the existence of the rule

of law and therefore, must pay due regard and respect at all times to the enshrined rights of the people through whose vote they are elected into Office and are in power. They must endeavor to resist the urge to trample upon their rights and treating the people with contempt resulting into brazen breaches of their constitutionally enshrined rights. Thus, what makes an order of restriction of movement lawful is in relation to the powers of the person as duly conferred by law. It is my view therefore, that it is only when the lawfulness of such a verbal order has been ascertained within the confines of an existing law that the issue of Section 203 of the Criminal Code, Laws of Edo State can come into play.
So, in the light of all I have stated above on the proved evidence as in the Record of Appeal and in all the circumstances of this appeal, was the verbal order restricting movement by use of motorcycles issued or made or announced by the 1st Respondent on 11/6/2013 lawful within the context of Section 41(1) and 41(2) of the Constitution of Nigeria, 1999 (amended) or under and by virtue of any other existing law in Edo State to render its breach an offence

under Section 203 of the Criminal Code Laws of Bendel State as applicable to Edo State? I think not. See Faith Okafor V. Lagos State Government & Anor (2016) LPELR – 41066(CA) per Georgewill, J.C.A. See also Aiko V. Fagbemi (1961) All NLR 400; Capt. Asake V. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408; Udoku V. Onugha (1963) 2 All NLR 107; Prince Joshua Paulson V. The State (2011) LPELR – 4875 (CA); FRN V. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113; Major Adebayo V. Nigerian Army & Anor (2012) LPELR – 7902 (CA); Hon Hembe V. FRN (2014) LPELR – 22705 (CA).
In my view therefore, and I so firmly hold, that Section 203 of the Criminal Code. Laws of Bendel State as applicable to Edo State is completely irrelevant as well as inapplicable to justify the proscription of the use of motorcycles on some roads in Edo State by the 1st Respondent and punishing any purported breach by the confiscation of the purportedly offending motorcycle. I am aware and it is of common knowledge the security risk posed by unregulated use of motorcycle in the Urban Cities leading to avoidable accidents and the resultant loss of lives and limbs in

Nigeria and this Court can readily and do hereby take judicial notice thereof, yet every action or step taken towards tackling this menace must be done or taken within the dictates and confines of the rule of law. It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the led. This is because in Nigeria, as it is England, amidst the clash of arms, including even in time of war, the Court will not be silent. See Attorney General V. De Keyser’s Royal Hotel (1920) AC 508 per the House of Lords. See also Margaret Stitch V. A.G, Federation & Ors (1986) 5 NWLR (Pt. 46) 1007 @ p. 1026 per Aniagolu J.S.C.; Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR -45528(CA), per Georgewill, J.C.A.

I must reiterate that right of the citizen to freedom of movement is inalienable by virtue of the provisions of Section 41(1) of the Constitution of Nigeria, 1999 (as amended), and thus can only be abrogated and or derogated from as provided by the provisions of Section 41(2) of the Constitution of Nigeria, 1999 (as amended). Interestingly, this right inures to both the

leaders, when they are in power and even when they are out of power as well as the led in this Country. Therefore, in deserving cases, a proved breach of this right without lawful justification is usually met with severe deprecation and award of commensurate damages by the Court. See Faith Okafor V. Lagos State Government & Anor (2016) LPELR – 41066(CA) per Georgewill, J.C.A.

Above all and when all is said and done, in law as in every society governed by democratic norms in which the Government is of the people, by the people and for the people, every offence, every restriction on movement and every penalty to be imposed thereon must be within the confines and ambits of the operation of the Rule of Law in a democratic society such as Nigeria. See Raymond Temisan Omatseye V. Federal Republic of Nigeria (2017) LPELR -42719(CA) per Georgewill, J.C.A.
In modem contemporary jurisprudence, the rule of law is the condition in which all members of the society, including the rulers and the led accept the supremacy of the law. It is neither an option nor one of choice. It is a concept in which the citizen is entitled to the observance of the principles

of natural justice in the determination of any question involving his rights and obligations under the law. It denotes absolute supremacy or predominance of law. Thus, under it, the Constitution is the supreme law and the observance of the laws of the land must be the guiding code in the daily life of both the Rulers and the Led, so much so that none whosoever is exempted from the observance of the laws of the land. This is indeed the true essence of the rule of law. See Prof A. V. Dicey: Introduction to the Study of Law of the Constitution 10th Edition Macmillan Education Ltd, 1959 @ p. 202. See also Garba & Ors. V. University of Maiduguri (1986) 1 NWLR (Pt.18) 550; Godwin Josiah V. The State (1985) 1 NWLR (Pt.11) 125 @ p.141.
In Kalu V. The State (1988) 1 NWLR (Pt. 90) 503 @ p.561, the Supreme Court had per Oputa J.S.C., (God bless his soul), opined inter alia thus:
“It should be one and the same even handed justice, blind to all social distinctions and disparities in wealth and status and no respecter of persons.”

I have also considered the issues raised by the Respondents that the verbal order of the 1st Respondent made on 11/6/2013

restricting movement of the citizens by motorcycles was authorized by Sections 5 (2) and 14 (b) of the Constitution of Nigeria, 1999 (as amended).
Now by Sections 5 (2) of the Constitution of Nigeria, 1999 (as amended), it is provided thus:
“Subject to the provisions of the Constitution, the Executive powers of a State –
(a) shall be vested in the Governor of that State, and may, subject as aforesaid and to the provisions of any law made by the House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or Officers in the Public Service of the State, and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws”
And by Section 14 (2) (b) of the Constitution of Nigeria, 1999 (as amended), it is provided thus:
“The Security and Welfare of the people shall be the primary purpose of Government”
Having calmly read and understood the above provisions, I

hold that it in no way, authorized or justified, the verbal order made by the 1st Respondent on 11/6/2013 restricting the movement of the citizens through the use of motorcycle without any enabling or existing law. It remains, in my finding and I still so hold, unlawful, null and void and of no effect whatsoever in law.

My lords, I now come to the consideration of the second question, which is did the verbal order of the 1st Respondent made on 11/6/2013, in the circumstances of the proved evidence in this case, constitute a breach of the all or any of the Appellants’ right to fair hearing. The fulcrum of this question is the vexed issue of when in law can a decision or directive or order be said to been made in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.

In considering whether or not a decision or order or directive was in breach of the right to fair hearing of a citizen, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because, fair hearing is primarily a matter of fact and thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the right to fair hearing of the citizen. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.

However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641-642, per Ngwuta J.S.C., (God bless his soul).

Now, by Section 36(1) of the Constitution of Nigeria, 1999 (as amended), it is provided thus:
“In the determination of his civil rights and

obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by Law and constituted in such manner as to secure its independence and impartiality.”

My lords, I have earlier in this judgment set out in details the facts and circumstances of the events of 17/6/2013 and 20/6/2013 leading to the commencement of the suit before the Court below by the Appellants against the Respondents and as shown in the Record of Appeal. It was on the strength of the evidence as led by the parties that the Court below had in its judgment delivered on 21/1/2014 held inter alia thus:
“……Let me at this outset deal with the question, whether the right to fair hearing under Section 36 has been implicated by the deposition, sufficient enough to warrant any serious analysis. Section 36 of the Constitution protects the right to fair hearing, the right which are protected are set out in different categories….Out of all the categories of fair hearing provision under Section 36 of the Constitution, I

cannot, even without (sic) extra diligence place my finger on any of the above that comes near to consistency or coherence or fits the fact alleged by the Applicants to warrant any inference of violation of their right to fair hearing…Still, the absence of the intention to target the Applicants specifically deflects the claim that their right to fair hearing was violated. In my view the right to fair hearing involves a much more direct and personal interest in which an individual is affected or injured by an act or conduct directed at him…. In the circumstances therefore, I hereby find that the applicants failed to prove violation of their right to fair hearing, either under Section 36 of the 1999 Constitution or under Art 7 of the African Charter of Human and Peoples Right.” See pages 81 – 101 of the Record of Appeal.

I have calmly considered the entirety of the evidence as led by the Appellants on this head of claim and the applicable principle of law, particularly the provisions of Section 36(1) of the Constitution of Nigeria, 1999 (as amended), and I cannot but agree completely with the above finding and decision in the judgment of

the Court below. It is sound, it is unimpeachable. It is impeccable. I hereby affirm it and hold firmly that the Appellants failed to prove as alleged by them any breach of their fundamental right to fair hearing by all or any of the Respondents, particularly the 1st Respondent. Consequently, this head of claim having not been made out fails in its entirety.

My lords, I now come to the consideration of the third question, which is, did the verbal order of the 1st Respondent, in the circumstances of the proved evidence in this case, constitute a breach of all or any of the Appellants’ right to freedom of movement?
Now, by Section 41(1) and (2) of the Constitution of Nigeria 1999, (as amended) it is provided as follows: –
41.(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part of thereof, and no citizen of Nigeria shall be expelled from Nigeria or referred entry thereto or exit therefore.
41.(2) Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society.
A. Imposing restriction on the residence or movement of any person who

has committed or is reasonably suspected to have committed a criminal offence or to prevent him from leaving Nigeria; or
(B) Providing for the removal of any person from Nigeria to any other country to (i). Be tried outside Nigeria for any criminal offence or (ii). To undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he was been found quietly;
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.
And by Art 12 of the African Charter of Human and People’s Right, it is provided thus:
“Every individual shall have the right of movement and residence within the borders of a State provided he abides by the law”
My lords, I have earlier in this judgment set out in details the facts and circumstances of the events of 17/6/2013 and 20/6/2013 leading to the commencement of the suit before the Court below by the Appellants against the Respondents and as shown in the Record of Appeal. It was on the strength of the evidence as led by the parties that the Court below had in its judgment delivered on

21/1/2014 held inter alia thus:
“….. Finally was the Applicant’s rights to freedom of movement violated under Section 41 of the Constitution and Art 12 of African Charter of Human and Peoples Right (Rectification and Enforcement) LFN? … It seems that the right to freedom of movement principally deals with the right to personal movement from one place to another without physical hindrance by any authorities or individual, it does not appear to cover restriction on the use of means by which the movement could be achieved…..bearing in mind the fact that the use of motorcycle, in spite of its ubiquity and the cheap means of its acquisition and use, its ban creates no greater hindrance than the ban on the use of a particular make of vehicles or all vehicles or aeroplanes or motor boats to the right of movement of their users, in that their right of movement is not physically deprived, given that they could still use other means of transport to move, even though not without some inconveniences. But, could the attendant inconvenience constitute violation of their right to movement or a restriction of the exercise of that right? In my

respectful view, although it all depends on the particular fact and circumstances of each case, but in this particular case, such a ban would most invariably only result in a restriction that would not totally deprive the user of the other opportunity to move to the destination of his choice…In the instant case, none of the Applicants was subjected to any detention nor the restriction of their physical movement except that use of the motorcycles particularly was denied. This in my view does not amount to a violation of the right to movement within the meaning and context of Section 41 and Art 12 of the Constitution and African Charter Respectively.” See pages 81 – 101 of the Record of Appeal.
Now, the unchallenged evidence of the 1st Appellant by his own showing was that, on 17/6/2013 he succeeded in running away with his motorcycle and returned safely to his own house, which in the common Nigerian parlance is that he ‘bailed himself’ and thus neither he nor his motorcycle was detained. What then is the breach of his right to freedom of movement he is still complaining about, when he has moved back to his own house and there is no

evidence that he attempted to move out again and was stopped and detained along with his motorcycle by the Officers or Agents of the 1st – 6th Respondents? None I can find. Is the 1st Appellant above being stopped or questioned by the Police in the performance of their statutory duties even without the unlawful and invalid verbal order of the 1st Respondent? Does he enjoy any such immunity under the law? I think not.
As regards the 2nd Appellant, he was neither the rider nor owner of the motorcycle confiscated on 20/6/2013 by the Officers and Agents of the 1st – 6th Respondent whilst carrying out the verbal order of the 1st Respondent, which though has turned out to be unlawful. He was merely a passenger on the said motorcycle and in the exercise of his inalienable right to freedom of movement he had walked away leaving the owner of the said motorcycle to his fate. So, was his right to freedom of movement in any way breached by all or any of the 1st – 6th Respondents and or their Officers and Agents on 20/6/2013? I think not.
I have calmly considered the entirety of the evidence as led by the Appellants on this head of claim and the applicable

principle of law, particularly the provisions of Section 41(1) of the Constitution of Nigeria, 1999 (as amended), and I cannot but agree completely with the finding and decision in the judgment of the Court below. It is sound, it is unimpeachable. It is impeccable. I hereby affirm it and hold firmly that the Appellants failed to prove as alleged by them any breach of their fundamental right to freedom of movement by all or any of the Respondents. Consequently, this head of claim having not been made out fails in its entirety.

My lords, there is even no law that requires the Respondents, on the porous evidence of the Appellants as regard their claim of breach of their right to freedom of movement, to have testified in respect of this head of claim or be called upon to state their own side of the case since the Appellants who made these allegations had failed to furnish the Court below with at least prima facie evidence of the allegations made against the all or any of Respondents. In law, it was the duty of the Appellants making these allegations to provide sufficient verifiable evidence that it occurred. Thus, it is not the duty of the Respondents to prove

their innocence or that it did not occur when no credible sufficient prima facie evidence has been presented against them by the Appellants on this head of claim of breach to their right to freedom of movement.
To this end, I have calmly scrutinized the evidence of the Appellants in relation to reliefs B, C, and E, in the light of the findings by the Court below and the submissions by learned counsel to the respective parties in this appeal, and I find, and hold firmly, that on the Appellants’ own showing, these reliefs were not in the least made out even on a prima facie basis and the Respondents therefore, need not even have made any defence to these reliefs, which I hereby hold are liable to be dismissed. See Jolayemi V. Alaoye (18 NSCQR Pt. 11) 652 @ page 704, where the Supreme Court per Uwaifo J.S.C., had put it succinctly thus:
“I realized that the Defendant need not prove anything, if the Plaintiff has not succeeded in establishing his case at least prima facie in order that the necessity of the Defendant to confront the case may arise.”

On the whole therefore, on the proved evidence, even on their own showing, the 1st Appellant

had bailed himself whilst the 2nd Appellant who does not own the seized motor cycle was at liberty and did used his freedom of movement and walked away leaving the owner of the seized motorcycle to his own fate. Thus, he had nothing to complain about at all. The sole issue is hereby answered partly in favor of the 1st Appellant only, as against the 1st Respondent only.

In the circumstances, having answered the very first and most fundamental question hinged on relief A of the 1st Appellant in the positive, in favor of the 1st Appellant against the 1st Respondent, I hold that the appeal succeeds in part and it is hereby so allowed in part. Consequently, parts of reliefs A and D succeed and shall be so granted in part.

In the result, the judgment of the Federal High Court, Benin Judicial Division Coram: A. M. Liman J, in Suit No. FHC/B/CS/89/2013: Mr. Charles Apiloko James & Anor V. The Governor of Edo State & Ors delivered on 21/1/2014, in which part of reliefs A and D claimed by the 1st Appellant as 1st Applicants against the 1st Respondents as 1st Respondents before the Court below were dismissed for lacking in merit is hereby set aside.

In its stead, judgment is hereby entered partly in favor of the 1st Appellant as 1st Applicant, only against the 1st Respondent in Suit No. FHC/B/CS/89/2013: Mr. Charles Apiloko James & Anor V. The Governor of Edo State & Ors, and it is hereby declared and ordered as follows, namely:
A. It is declared that the 1st Respondent’s action on Tuesday 11/6/2013 of verbally announcing a ban on the use of motorcycles from plying all the roads in Oredo, Ikpoba- Okha and Egor Local Government Areas of Benin City and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyaen village (Coca-cola Area) in Uhunmwonde Local Government Area effective from 12pm on Sunday 16/6/2013 was ultra vires the powers of the said 1st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever.
B. Is hereby refused and dismissed.
C. Is hereby refused and dismissed.
D. An order of this Court be and is hereby issued setting aside the verbal order of the 1st Respondent made on 11/6/2013 banning the use of motorcycles from plying all the roads in Oredo, Ikpoba-Okha and Egor Local Government Areas of

Benin City and Oluku and Ekosodin villages in Ovia North East Local Government Area and Eyaen village (Coca-Cola Area) in Uhunmwonde Local Government Area effective from 12 p.m on Sunday 16/11/2013 for being unconstitutional, null and void and of no effect whatsoever.
E. Is hereby refused and dismissed but in its stead the sum of N1,000 is hereby awarded as nominal damages in favor of the 1st Appellant only as against the 1st Respondent only.
F. Is hereby refused and dismissed.
G. However, that part of the judgment of the Court below dismissing reliefs B, C and F as claimed by the 1st and 2nd Appellants as Applicants against the 1st – 6th Respondents as Respondents in Suit No. FHC/B/CS/89/2013: Mr. Charles Apiloko James & Anor V. The Governor of Edo State & Ors is hereby affirmed.
H. There shall be cost of N300, 000 in favor of the 1st Appellant only, against the 1st Respondent only.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned brother, B. A. Georgewill, J.C.A. I am in complete agreement with his Lordship’s line of reasoning

and the conclusions reached therein by him that the appeal is a success only in part. I have nothing to add to the well-enunciated leading judgment which I adopt as mine.

The appeal is therefore allowed by me in part accordingly and I abide by all the consequential orders made in the leading judgment, including the order for costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, Sir BIOBELE ABRAHAM GEORGEWILL, J.C.A. and I am in total agreement with the reasoning and conclusions reached in resolving the issues for determination in this Appeal in favour of the Appellants and I abide by all the consequential orders made thereto including the orders as to cost. I would however, make a few comments of my own on the issues involved in this Appeal, which I make bold to say strikes a direct blow at the roots of the fragile regime of the rule of law under Nigeria’s democratic rule.

It is widely acknowledged, that the absence of arbitrary power is the first essential of the rule of law, while the absence of the rule of law in any given clime is the direct consequence of arbitrariness. One of the

banes of the rule of law regime in Nigeria is the constant problem of the disobedience of the law. Under Nigerian current socio-political setting, one may now even have to ask; what is it to obey the law? or putting it the other way round, what is it to disobey the law? Legal pundits, Jurists and Philosophers seem to have paid little attention to these simple questions. Yet, the concepts of obedience and disobedience of the law have long grounded many perennial debates in legal and political philosophy, such as has been presented for our determination in the instant Appeal.

The rule of law in most instances than not, have metamorphosed in our clime from its original conception as a natural law divine concept against which municipal laws are to be measured into the classical Diceynian conception as rights ultimately culminating in an admixture of the classical and the materialistic meaning with greater emphasis on the latter.

A verbal ban of motorcycles in this age and now, as in the instant Appeal, therefore, without a law is a good example and about the height of it. Arbitrariness as a noun, therefore, simply connotes any act founded on prejudice or

preference, rather than on reasons or facts. Whenever decision making and its process; the maker and the decision made have ignored relevant considerations and have also ignored settled basic aspects of due process are nothing short of veritable reflections of arbitrariness and no more.

Black’s Law Dictionary defines: “Arbitrariness” as the quality of being arbitrary or uncontrolled in exercise of will. Where legislative enactments are therefore not based on discernible principles then the test of “arbitrariness” gets utterly satisfied. In the locus classicus of MILITARY GOVERNOR OF LAGOS STATE vs. OJUKWU, (1986) LPELR-3186 (SC) ESO, J.S.C. (OBM) called: “Arbitrariness” by its appropriate sobriquet when he described it as: “Executive Lawlessness”. In his immutable words the CICERO of the Nigerian Judiciary as he was fondly called, had this to say on the subject:
“Executive lawlessness is tantamount to a deliberate violation of the Constitution. When the Executive is the Military Government, which blends both the Executive and the Legislative together and which permits the Judiciary to co-exist with it in the administration of the Country, then it is

more serious than imagined.”

The Appellants herein have complained that by the verbal ban of motorcycles without a formal law, their fundamental rights enshrined under Chapter Four of the Constitution of Nigeria, 1999 as amended, have thereby been violated. From a positivistic point of view, (of the Positivist School of Law of JOHN AUSTIN, et. al) a regime of good laws, orderliness and equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a Republic while the other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal, lacks orderliness and the vestiges of good Governance both according to Political logic and Constitutional law and it therefore violates every guaranteed right under the Constitution.

Aside from this, I have nothing more to add to a well-researched and written judgment of my learned brother. I once again, abide by all the consequential orders made thereto.

Appearances:

Bamidele Uche Igbinedion, Esq. For Appellant(s)

O. Kadiri Esq., Principal State Counsel, Ministry of Justice, Edo State For Respondent(s)