LASTMA v. OMOSIVWE (2020)

LASTMA v. OMOSIVWE

(2020)LCN/14834(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/L/971/2014

RATIO

ACTION: REQUIREMENT TO DETERMINE THE JUSTICEABILITY OF A CAUSE OF ACTION UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

Now, dealing with the first limb, in order to determine the justiceability of a cause of action under the Fundamental Rights (Enforcement Procedure) Rules, it is the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon that have to be scrutinised. If they disclose that an alleged breach of fundamental rights is the main plank of the action, then redress may be sought through the Fundamental Rights (Enforcement Procedure) Rules. But where the alleged breach of fundamental right is incidental or ancillary to the main complaint, it will not be competent to proceed under the Fundamental Rights (Enforcement Procedure) Rules. See SEA TRUCKS NIG. LTD vs. ANIGBORO (2001) 1 MJSC 111 at 127 & 130 and TUKUR vs. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (510) 549. PER OGAKWU, J.C.A.

FUNDAMENTAL RIGHTS: DUTY OF AN APPLICANT FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

The law is now settled that an applicant for the enforcement of fundamental rights under Chapter IV of the Constitution has the initial onus of showing that the reliefs he claims comes within the purview of fundamental rights as enshrined in Sections 33 to 44 of the Constitution. This is obvious from the provisions of Section 46 of the Constitution. See NWANGWU vs. DURU (2002) 13 WRN 158 at 167. In the case of UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT 200) 708 at 751, Nasir, PCA, while construing Section 42 of the 1979 Constitution which is in pari materia with Section 46 of the 1999 Constitution stated as follows:
“The Section requires that a person who wishes to petition, that … he is entitled to a fundamental right;
(a) must allege that any provision of the fundamental rights under Chapter IV have been contravened, or
(b) is likely to be contravened, and
(c) the contravention is in relation to him.”
It therefore follows that for the relief for enforcement of fundamental rights to be cognisable and so redressible, there must be some contravention of the fundamental rights enshrined in the Constitution in relation to the applicant. PER OGAKWU, J.C.A.

JURISDICTION: WHICH COURT HAS JURISDICTION TO ENTERTAIN THE FUNDAMENTAL HUMAN RIGHTS PROCEEDINGS

It seems to me that the law in this regard is now settled beyond peradventure. In OSUNDE vs. BABA (2014) LPELR (23217) 1 at 29-32, Ogunwumiju, JCA (now JSC) stated:
“The position of the Appellants is that in the circumstances of this case, only the State High Court has jurisdiction to entertain the fundamental human rights proceedings relating to violations of the rights of the Respondent by an agent of the Edo State Government. The argument of the Respondent is that since the term ‘a High Court in a State’ includes both the State High Court and the Federal High Court within a State’s territorial jurisdiction, then the fundamental human rights proceedings was rightly commenced at the Federal High Court sitting in Benin. Needless to say, that was the position of the Supreme Court in Jack v. UNAM (2004) 5 NWLR Pt. 865 Pg. 208 at 226 when Katsina-Alu JSC (as he then was) stated generally that a State High Court has concurrent jurisdiction with the Federal High Court in matters of enforcement of a person’s fundamental rights provided for in Chapter IV of the Constitution. The Supreme Court in Jack v. UNAM also established a dichotomy in relation to the fact that jurisdiction is derived from the subject matter of the dispute. Even though the Supreme Court allowed the appeal in that case, it struck out the case at the trial Court because the cause of action was a breach of contract and not violation of the fundamental human rights of the Appellant. In Adetona & Ors. V. I.G. Enterprises Ltd. 2011 7 NWLR pt. 1247 pg. 535 at 564, Muhammad JSC, who delivered the lead judgment apparently enlarged the position of the Supreme Court on the matter. Their Lordships were of the view that a State High Court has jurisdiction in all fundamental human rights cases irrespective of whether the right involved comes within the legislative competence of the Federation or the State or the FCT. I.T. Muhammad JSC stated at Pg. 554 as follows:
‘It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the Federal High Court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225.

DECISION: EFFECT OF ANY ARGUMENT FLOWING FROM A MISCONCEPTION AS TO DECISION REACHED BY A COURT

It is an established principle of law arising from the logic of reasoning that where there has been a misconception as to decision reached or arrived at by a Court in a matter, any argument flowing from that misconception will no doubt be fallacious since it will be based on a wrong premise. See UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 152 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT 1) 159 at 169. PER OGAKWU, J.C.A.

JURISDICTION: PROPER ORDER TO MAKE WHERE THE COURT LACKS JURISDICTION

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY APPELANT(S)

And

S. OMOSIVWE ESQ. RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Federal High Court, Lagos Division delivered on 25th November, 2013 in SUIT NO.FHC/L/CS/189/2013: K. S. OMOSIVWE ESQ. vs. LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY. By an Originating Motion filed on 15th February 2013, the Respondent, as Applicant, at the lower Court applied for the enforcement of his fundamental rights to fair hearing and to own and operate moveable property. The reliefs claimed on the application are as follows:
“1. A declaration that the seizure and consequent impoundment of the Applicant’s vehicle i.e. a BMW 3 series salon car with registration number DA248LSD on the 23rd of December, 2012 by agents of the respondents without giving the applicant an opportunity to be heard is an affront on the Applicant’s right to fair hearing.
2. A declaration that the issuance of a fine by he [sic] agents of the Defendant on the 23rd of December, 2012 to the Applicant in consequent [sic] of No. 1 above without giving the Applicant an opportunity to be heard is an affront on the

Applicant’s right to fair hearing.
3. A declaration that the detention of the Applicant’s vehicle on the 23rd of December, 2013 and continuous detention of same since the aforestated date by operatives of the Respondent is violation of the Applicant’s right to own and operate moveable property.
4. An order directing the Respondent to release the subject vehicle forthwith and unconditionally to the Applicant.
5. Damages in the sum of 2,000,000.00 only.”

The application was heard on the affidavit evidence filed by the parties and their written addresses. After considering the application and the submissions of learned counsel, the lower Court entered judgment for the Respondent in the following terms:
“The claim of the Applicant succeeds in part. I grant prayers 1, 2 & 3. Prayer 4 has been overtaken by event. The Applicant’s vehicle having been already released. I award N200,000.00 to the Applicant as general damages for the unlawful conduct of Respondent towards the Applicant payable by LASTMA. Cost of N20,000.00 is awarded in favour of the Applicant payable by the Respondent.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

The Appellant being dissatisfied with the judgment, appealed against the same by Notice of Appeal filed on 18th February, 2014. The judgment of the lower Court is at pages 67-81 of the Records, while the Notice of Appeal is at pages 90-92 of the Records.

Upon the compilation and transmission of the Records of Appeal, briefs of argument were filed and exchanged by the parties. The Appellant’s Brief was filed on 8th June 2016, but deemed as properly filed on 7th June 2017, while the Respondent’s Brief was filed on 19thMarch 2019. At the hearing of the appeal on 14th October 2020, the parties and their counsel were absent, even though duly served with hearing notice; whereupon the Court invoked the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, and treated the appeal as having been argued.

The Appellant formulated two issues for determination, videlicet:
1. Whether the Respondent’s action is cognizable under the Fundamental Right (Enforcement Procedure) Rules 2009 to have conferred jurisdiction in the Federal High Court to determine the action. (Distilled from Ground 1 of the Notice of Appeal).

Whether the Court below was right to have declared the provisions of Sections 9, 11, 12 and 13 the Lagos State Traffic Management Authority Law inconsistent with Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and therefore unconstitutional (Distilled from Grounds2 and 3 of the Notice of Appeal)The Respondent equally distilled two issues for determination, scilicet:
1. Whether the lower Court had jurisdiction to entertain the substantive suit.
2. Whether the judgment entered by the lower Court in favour of the Applicant was legally justified.

The issues distilled by the parties are the same in their true essence and purport. Accordingly, it is on the basis of the issues as crafted by the Appellant that I will consider the submissions of learned counsel and resolve this appeal.
ISSUE NUMBER ONE
Whether the Respondent’s action is cognizable under the Fundamental Right (Enforcement Procedure) Rules 2009 to have conferred jurisdiction in the Federal High Court to determine the action.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that it is the originating processes filed

in an action that a Court considers in order to determine whether it has jurisdiction to entertain the action vide ADEYEMI vs. OPEYORI (1976) 9-10 SC 31 and INAKOJU vs. ADELEKE (2007) 4 NWLR (PT. 1025) 427. The Appellant contended that the Respondent’s action was not cognisable under the fundamental rights enforcement procedure as the main claim was for alleged illegal assault and battery for the traffic offence committed by the Respondent and the arrest and seizure of the Respondent’s vehicle.

It was posited that the Respondent’s allegation was not a breach of a fundamental right, as the alleged breach was ancillary to the main claim and therefore not cognisable under the Fundamental Rights (Enforcement Procedure) Rules. The cases of WAEC vs. AKINKUNMI (2008) 9 NWLR (PT 1091) 151 and BRTC vs. EGBUONU (1997) 12 SCNJ 99 were referred to. It was contended that even if the Court holds that the action is cognisable as a fundamental right action, that the lower Court still lacked jurisdiction to entertain the action as constituted, as the lower Court can only entertain fundamental rights actions which arise from or in respect of matters in

which jurisdiction has been conferred on the lower Court by Section 251 of the Constitution (as amended).

It was opined that Section 46 of the Constitution which gives concurrent jurisdiction to the lower Court and State High Courts in fundamental rights matters stipulates in Section 46(2), the phrase “subject to the provisions of the Constitution”; thereby limiting the jurisdiction of the lower Court to enforce fundamental rights to matters in respect of which jurisdiction has been conferred on it by Section 251 of the Constitution. The case of GAFAR vs. GOVT OF KWARA STATE (2007) 4 NWLR (PT 1024) 375 was relied upon.

It was asserted that the subject matter of the Respondent’s complaint did not have anything to do with the executive or administrative decision or action of the Federal Government or its agencies. It was therefore maintained that the lower Court lacked jurisdiction and that its decision is a nullity vide GAFAR vs. GOVT OF KWARA STATE (supra).

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent refers to the definition of jurisdiction in Black’s Law Dictionary, 6th Edition and the cases of A-G FEDERATION vs. A-G ABIA (2001) 7 SC (PT 1) 100, A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1.

MADUKOLU vs. NKEMDILIM (1962) SCNLR 341, NDAEYO vs. OGUNNAYA (1977) 1 SC 11 among others, and stated that jurisdiction is conferred on a Court by the Constitution or statute vide YUSUF vs. OBASANJO (2004) LPELR-SC 193/2003, KLM AIRLINES vs. KUMZHI (2004) 8 NWLR (PT 875) 231, GAFAR vs. GOVT OF KWARA STATE (supra) and a host of other cases.

The Respondent maintained that the conditions for the competence of a Court to exercise jurisdiction as laid down in MADUKOLU vs. NKEMDILIM (supra) were present and that when the reliefs claimed are considered, it is clear that the subject matter of the action was within the jurisdiction of the lower Court. The cases of ADEYEMI vs. OPEYORI (supra), TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517, EGBUONU vs. BRTC (1997) 12 NWLR (PT 531) 29 and OKULATE vs. AWOSANYA (2000) 2 NWLR (PT 646) 530 were referred to. It was asserted that the Respondent’s case was for infringement of the right to fair hearing and the right to own and operate moveable property as enshrined in Sections 36 and 44 of the Constitution.

It was opined that in actions for infringement of fundamental rights, both the lower Court and the State High Courts are vested with jurisdiction by Section 46 of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules vide GAFAR vs. GOVT OF KWARA STATE (supra). It was posited that Section 251 of the Constitution was not restrictive of the jurisdiction conferred on the lower Court in fundamental rights actions, as it accommodates such other jurisdiction as may be conferred on the lower Court in accordance with the Fundamental Rights (Enforcement Procedure) Rules.

RESOLUTION OF ISSUE NUMBER ONE
The Appellant’s contention under this issue can be classified under two limbs. The first limb is the contention that the Respondent’s cause of action is not justiceable under the Fundamental Rights (Enforcement Procedure) Rules because the relief for fundamental right is ancillary to the main claim, which main claim it was submitted, was for illegal assault, battery, arrest and seizure of motor vehicle for a traffic offence. The second limb of the contention is that even if the

action is cognizable as a fundamental right matter; that it does not fall within the enumerated jurisdiction of the lower Court.

I have already set out in extenso, the reliefs claimed by the Respondent. The law is now settled that an applicant for the enforcement of fundamental rights under Chapter IV of the Constitution has the initial onus of showing that the

reliefs he claims comes within the purview of fundamental rights as enshrined in Sections 33 to 44 of the Constitution. This is obvious from the provisions of Section 46 of the Constitution. See NWANGWU vs. DURU (2002) 13 WRN 158 at 167. In the case of UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT 200) 708 at 751, Nasir, PCA, while construing Section 42 of the 1979 Constitution which is in pari materia with Section 46 of the 1999 Constitution stated as follows:
“The Section requires that a person who wishes to petition, that … he is entitled to a fundamental right;
(a) must allege that any provision of the fundamental rights under Chapter IV have been contravened, or
(b) is likely to be contravened, and
(c) the contravention is in relation to him.”
It therefore follows that for the relief for enforcement of fundamental rights to be cognisable and so redressible, there must be some contravention of the fundamental rights enshrined in the Constitution in relation to the applicant.

It is effulgent from the reliefs claimed and the facts in support thereof that the Respondent’s main claim is on the alleged breach

of his fundamental rights to fair hearing, in that a fine for a traffic offence was imposed on him and his vehicle distained and sequestered without his being afforded a hearing. The action is accordingly cognisable under the specialised procedure of the Fundamental Rights (Enforcement Procedure) Rules.

Having so held, that the matter is cognisable under the Fundamental Rights (Enforcement Procedure) Rules, we segue to the second limb which is the contention that the subject matter of the action wherein the Respondent sought to enforce his fundamental rights is not within the enumerated jurisdiction of the Federal High Court.

The Respondent’s complaint on the basis of which he predicated his cause of action is that the Appellant, an agency of the Lagos State Government; acting through its officers, impounded his vehicle and imposed a fine on him for an alleged traffic offence without affording him a hearing and deprived him of the use of his vehicle. It is therefore as clear as crystal that the subject matter of the Respondent’s action has nothing to do with the acts of omission or commission of the Federal Government or any of its

agencies. It seems to me that the law in this regard is now settled beyond peradventure. In OSUNDE vs. BABA (2014) LPELR (23217) 1 at 29-32, Ogunwumiju, JCA (now JSC) stated:
“The position of the Appellants is that in the circumstances of this case, only the State High Court has jurisdiction to entertain the fundamental human rights proceedings relating to violations of the rights of the Respondent by an agent of the Edo State Government. The argument of the Respondent is that since the term ‘a High Court in a State’ includes both the State High Court and the Federal High Court within a State’s territorial jurisdiction, then the fundamental human rights proceedings was rightly commenced at the Federal High Court sitting in Benin. Needless to say, that was the position of the Supreme Court in Jack v. UNAM (2004) 5 NWLR Pt. 865 Pg. 208 at 226 when Katsina-Alu JSC (as he then was) stated generally that a State High Court has concurrent jurisdiction with the Federal High Court in matters of enforcement of a person’s fundamental rights provided for in Chapter IV of the Constitution. The Supreme Court in Jack v. UNAM also

established a dichotomy in relation to the fact that jurisdiction is derived from the subject matter of the dispute. Even though the Supreme Court allowed the appeal in that case, it struck out the case at the trial Court because the cause of action was a breach of contract and not violation of the fundamental human rights of the Appellant. In Adetona & Ors. V. I.G. Enterprises Ltd. 2011 7 NWLR pt. 1247 pg. 535 at 564, Muhammad JSC, who delivered the lead judgment apparently enlarged the position of the Supreme Court on the matter. Their Lordships were of the view that a State High Court has jurisdiction in all fundamental human rights cases irrespective of whether the right involved comes within the legislative competence of the Federation or the State or the FCT. I.T. Muhammad JSC stated at Pg. 554 as follows:
‘It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the Federal High Court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225.

Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental human rights, although brought pursuant to S.46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by S.251 of the Constitution.’
Thus the issue of who has jurisdiction between the State and Federal High Court is only circumscribed by the exclusive jurisdiction of the Federal High Court in matters provided under S. 251 of the Constitution. By the doctrine of stare decisis, we are obliged to shift our position to the one postulated by the Supreme Court on this issue.
In the circumstances of this case, the alleged breach of his rights complained of by the Respondent being committed outside the purview of S.251 of the Constitution by agents of Edo State Government, the Federal High Court lacked the jurisdiction to entertain the action.”
I was privileged to be in the panel of this Court that heard the said case of OSUNDE vs. BABA (supra) and in my contribution at

pages 35-41, I opined, inter alia:
“Now, jurisdiction means the authority which a Court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority which may be territorial or as to the subject matter are imposed by the statute under which the Court is constituted, and may be extended or restricted by like means. See ARJAY LTD vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) 5 MJSC 1 at 35A-B. Jurisdiction has also been defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought: OBIUWEUBI vs. CENTRAL BANK OF NIGERIA (2011) LPELR (2185) 1 at 42.
…It is trite law that it is the claim of a plaintiff that determines the jurisdiction of a Court that is invited to adjudicate in the matter. See LADOJA vs. INEC (2007) 40 WRN 1 at 37-38, 42-43 and 66, NATIONAL UNION OF ROAD TRANSPORT WORKERS vs. ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (2012) LPELR (7840) 1 at 63-64

and OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23.
…It seems to be the settled legal portion (position) that both the Federal High Court and the High Court of a State have concurrent jurisdiction in actions for enforcement of fundamental rights: JACK vs. UNIVERSITY OF AGRICULTURE (2004) 5 NWLR (PT 865) 208. But there is an important caveat which I hasten to add and it is this; in the case of the Federal High Court, the subject matter of the alleged infringement of the fundamental right must fall within the enumerated jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution in order for the action to be validly within the jurisdictional competence of the Federal High Court. See TUKUR vs. GOVERNMENT OF GONGOLA STATE (1989) LPELR (3272) 1. The same applies with equal force to the High Court of a State; where the subject matter of an action for the enforcement of fundamental rights falls within the enumerated items in which exclusive jurisdiction has been vested in the Federal High Court by Section 251 (1) of the 1999 Constitution, then the High Court of a State

will not have jurisdiction. See ADETONA vs. IGELE GENERAL ENTERPRISES LTD (2011) 7 NWLR (PT 1247) 535 at 564.
…In this regard, I can do no better than redact the dictum of my learned brother Nweze, JCA in OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (PT 1156) 563 at 585C-F where he stated as follows:
‘…the said Court [Federal High Court] is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matters enumerated therein.
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter [that is, beyond those expressly enumerated…] that relates to a federal agency. This cannot be so.
The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that wherever the question of the jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter

of the suit cannot be pitchforked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of the action.’
See also OLUTOLA vs. UNILORIN (2004) 18 NWLR (PT 905) 416 at 462.
…Jurisdiction is a fundamental prerequisite in the adjudication of any matter. It is a threshold matter, the lifeline of all suits, indeed the spinal cord of a Court of law: A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26. Hence, where a Court does not have jurisdiction to entertain a matter, the proceedings however well conducted are a nullity as the defect or lack of jurisdiction is extrinsic to the adjudication: MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and FGN vs. OSHIOMHOLE (2004) 3 NWLR (PT 860) 305 at 319D.
A Court of law has no duty and indeed no power to expand the jurisdiction conferred on it, but it has a duty and indeed jurisdiction to expound the jurisdiction conferred on it. See THE AFRICAN NEWSPAPERS OF NIGERIA vs. THE FEDERAL REPUBLIC OF NIGERIA (1985) 1 ALL NLR 50 at 175 or (1985) 2 NWLR (PT 6) 137 at 165 and EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35. In the process of expounding the jurisdiction

conferred on it, the Courts have always emphasised the need to decline jurisdiction where the exercise of jurisdiction will involve issues which a Court has no jurisdiction to hear and determine: ODUNSI vs. OJORA (1961) ALL NLR 283, NWAFIA vs. UBUBA (1966) NMLR 219 and TUKUR vs. GOVERNMENT OF GONGOLA STATE (supra) at 39-40.
…In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
‘If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.’”
See also EFCC vs. REINL (2020) LPELR (49387) 1 (SC).
The foregoing represents the legal position as I know it. The lower Court does not have jurisdiction to entertain the subject matter of the Respondent’s cause of action. The second limb of issue number one, and ipso facto, the said issue number one is resolved in favour of the Appellant.

ISSUE NUMBER TWO
Whether the Court below was right to have declared the provisions of Sections 9, 11, 12 and 13 of the Lagos State Traffic Management Authority Law inconsistent with Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and therefore unconstitutional.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the Respondent did not claim any declaration that any provisions of the Lagos State Transport Management Authority (LASTMA) Law was unconstitutional and that a Court of law can only grant reliefs sought in an action vide ISHENO vs. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (PT 1084) 582. It was posited that the issue of constitutionality of some provisions of the LASTMA Law was raised by the lower Court suo motu and resolved without hearing the parties on the issue. The cases of ONIAH vs. ONYIA (1989) 1 NWLR (PT 99) at 23-24 and ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410 were referred to.

The Appellant contended that the nullification of the said Sections of the law was not a consequential order but a substantive order. The case of EAGLE SUPER PACK vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 40 was called in aid on the meaning of

consequential order. In any event, it was asserted that the lower Court was wrong when it held that Sections 9, 11, 12 & 13 of the LASTMA Act were inconsistent with the provisions of Section 36 of the Constitution. The Appellant maintained that the Lagos State House of Assembly has the legislative competence to make laws on road traffic management within Lagos State, and that the LASTMA Law was validly made. The scarified Sections, it was asserted, were not inconsistent with the Constitution. It was consequently opined that the imposition of a fine for breach of the provisions of the LASTMA Law was an administrative action which was not inconsistent with the Constitution, as it did not foreclose recourse to the Court in a situation where the fine imposed is disputed.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent referred to the twin pillars of natural justice of nemo judex in causa sua and audi alteram partem and submitted that the Respondent was not given a hearing before the Appellant imposed a fine on the Respondent and impounded his vehicle. It was further stated that the Appellant acted as a judge in its own cause in this

regard. The case of DANIEL vs. FRN (2014) 8 NWLR (PT 1410) 570 at 575-576 was cited in support.

The Respondent maintained that the provisions of Sections 12, 13 & 14 of the LASTMA Law were inconsistent with Sections 36 and 44 of the Constitution; and that the Constitution, being the grundnorm, overrides the inconsistent provisions of the LASTMA Law and rendered them void to the extent of the inconsistency vide Section 1 (1) & (3) of the Constitution and the cases of ABACHA vs. FAWEHINMI (2000) 4 SC (PT II) 1, BALONWU vs. GOV. ANAMBRA STATE (2009) 18 NWLR (PT 1172) 13 among other cases.

RESOLUTION OF ISSUE NUMBER TWO
The quiddity of the Appellant’s contention under this issue is that the lower Court erred by declaring some Sections of the LASTMA Law unconstitutional, when there was no such relief claimed and the parties were not heard on the same. By all odds, the submissions of the Appellant on the issue represents the correct state of the law, but the said submission will be otiose, if on the diacritical circumstances of this matter, the lower Court did not make any such declaration as to the unconstitutionality of any provisions

of the LASTMA Law.

The lower Court in its judgment referred to and quoted extensively from an earlier judgment it delivered in a previous action in SUIT NO. FHC/L/CS/653/11: JONATHAN ODUTOLA vs. CORPORAL EDMUND OGWU, LASTMA & ORS (see pages 74-78 of the Records). In the said earlier action, the lower Court had nullified some Sections of the LASTMA Law for being unconstitutional. It is the same Sections that were nullified in that action that the Appellant claimed to have acted under in this matter. The lower Court after redacting portions of its decision in the said previous action then stated and held as follows with respect to this matter at pages 79-80 of the Records:
“The law that has been nullified by the decision of this

Court is the same law that the Respondent relied upon as an authority for it to impound, towed the Applicant’s vehicle herein to its park yard in Alausa and at the same time directing the Applicant to pay fine. As at the time the Applicant’s vehicle was seized, towed and fine imposed, there was no law in existence in support of what the Respondent did, same having been nullified. I so hold. Until the judgment of this Court dated 16/9/2011 is set (aside), it is illegal for LASTMA in Lagos State on its own to impound, seize, tow a vehicle of an individual who is alleged to have committed a traffic offence and fine imposed. Therefore, LASTMA was on its own frolic on 23/12/2012 when its officials unlawfully seized the Applicant’s vehicle same towed without his knowledge and consent and illegal fine imposed. They had no authority to do so. Except the Legislature comes in to assist LASTMA upon nullification of Sections 12, 13 & 14 of LASTMA’s law, it will always be illegal for them to impound a vehicle of a road user accused of contravening traffic rules, it will be illegal to tow the vehicle and also illegal to impose fine on a road user

for alleged flouting, traffic regulations, no matter the amount involved. Though Lagos State Government is hereby commended in setting up LASTMA, at least in regulating traffic LASTMA has done well, it has no power to punish any person that commits a traffic offence.”

Without a doubt, it is obvious that the lower Court did not in its decision in this matter hold that any Sections of the LASTMA Law were inconsistent with the Constitution. Indeed, no such relief was claimed. The lower Court merely stated that the said Sections having been nullified in a previous judgment were no longer extant for the Appellant to have purported to act on the same in this matter. The Appellant’s contention under this issue is therefore a non-sequitur as it stems from a total misconception and misapprehension of what the lower Court decided. This issue number two is resolved against the Appellant.

CONCLUSION
The resolution of issue number one in favour of the Appellant, on the threshold issue of jurisdiction, signposts that this appeal is meritorious. The decision of the lower Court is a nullity since the lower Court did not have the jurisdiction to

entertain the subject matter of the action. It was a waste of time for the lower Court to have embarked on the hearing and determination of the action. As the defect or want of jurisdiction is extrinsic to the adjudication, the decision of the lower Court is hereby set aside.

The proper order to make where the Court lacks jurisdiction is to strike out the action: OKOYE vs. NCFC (1991) 1 NWLR (PT 199) 501, RTEAN vs. NURTW (1992) LPELR (3200) 1 at 15 and DANGANA vs. USMAN (2012) LPELR (25012) 1 at 35-36. Accordingly, it is hereby ordered that the Respondent’s action in SUIT NO. FHC/L/CS/189/2013: K. S. OMOSIVWE ESQ. vs. LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY is hereby struck out.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the Honourable UGOCHUKWU ANTHONY OGAKWU, JCA graciously obliged me in advance, the draft of the judgment which has just been delivered in which he found the appeal based on issue of jurisdiction as meritorious and upheld it. I really

do not have any useful thing to add as the issue dealt with on the jurisdiction of the Federal High Court vis-a-vis the enforcement of fundamental rights matters pursuant to Section 46 (1) of the Constitution, Federal Republic of Nigeria, 1999 as amended, had in my view, been well settled by numerous judicial decisions, and when the Apex Court’s decision in TUKUR V. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) S.C. is read, it is understandable that the jurisdiction of the Federal High Court is unlike that of the State High Court on issue of fundamental rights proceedings, limited to the enumerated subject matter under Section 251 (1) of the Constitution.

I agree with the decision reached by my learned brother, and I too will allow the appeal, and I abide with the consequential orders made in the lead judgment.
Appeal allowed.

Appearances:

…For Appellant(s)

…For Respondent(s)