➥ CASE SUMMARY OF:
Federal Road Safety Commission v. Darlington Ugo Ehikaam Esq. (2023) – CA
by Branham Chima.
Federal Road Safety Commission
Darlington Ugo Ehikaam, Esq.
Court of Appeal – CA/AS/276/2019
➥ JUDGEMENT DELIVERED ON:
Monday the 17th day of July 2023
➥ THIS CASE IS AUTHORITY FOR:
⦿ NEXT LAW IN HIERARCHY TO THE CONSTITUTION
The law next in hierarchy to the Constitution is, an Act of the National Assembly. — A.O. Obaseki-Adejumo, JCA.
⦿ THE LIMIT OF THE NATIONAL ASSEMBLY TO MAKE LAW
The power of the National Assembly to make law for the Federation as well as the extent of exercise of such power is provided for in Section 4 thus: “(1) The legislative powers of Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive list set out in Part I of the Second Schedule to this Constitution. The import of the above provision is that, in as much as the laws made by the National Assembly rank next in hierarchy to the Constitution, the provision of Section 4 (2) limits the powers of the National Assembly to make laws to those items set out in part I of the second schedule to the Constitution. Therefore, the power of the National Assembly to make law is not limitless but confined to those items listed in part I of the 2nd schedule of the Constitution i.e Exclusive list. — A.O. Obaseki-Adejumo, JCA.
⦿ LEGISLATIVE POWERS OF THE NATIONAL ASSEMBLY IS ITEMISED IN THE EXCLUSIVE LIST
In Nigeria, the operation of legislative powers by the national assembly and House of Assembly of a State is itemized in two list; the Exclusive Legislative list and Concurrent list, these vest powers on the legislature to legislate upon certain items. The exclusive list is the exclusive preserve of the National Assembly which has 68 items. The item Traffic on Federal Road” is provided for under item 63 2nd schedule part I in the Exclusive legislative list. Study of part I of the 2nd Schedule, Item 63 i.e “Traffic on Federal Trunk roads” gave rise to the promulgation of Federal Road safety Commission (Establishment) Act, 2007 by the National Assembly for the maintenance and security of public safety and order. — A.O. Obaseki-Adejumo, JCA.
⦿ WORDS AND PHRASES ARE TO BE GIVEN THEIR ORDINARY MEANING
Under the literal rule of interpretation of statute, words and phrases in enactments are to be given their ordinary, original or grammatical meanings even if it will create hardship, inconvenience or injustice to the parties in so far as it will not result to absurdity. See, B.A.J (NIG) LTD. v. OGUNSEYE (2010) 4 NWLR (1184) 343, AMAECHI v. INEC (2007) 9 NWLR (PT. 1080) 504, UWAGBA v. FRN (2009) 15 NWLR (P. 1163) 91, OWENA BANK v. STOCK EXCHANGE (1997) 7 SCNJ 160. — A.O. Obaseki-Adejumo, JCA.
⦿ SECTION 4 OF THE CFRN LIMITS THE NATIONAL ASSEMBLY TO LEGISLATE
Section 4 of the constitution insists that each of the legislature, at the federal and state levels, must confine itself to its sphere of legislation viz; the items on each of the list. This means, that neither the National Assembly nor the house of the assembly of a state is at liberty to wonder off into the legislative arena of the other, where each of them strays into the legislative field of the other any law or provision which is an off shoot of that legislative invasion, as it where, on the legislative items is unconstitutional, null and void and stands the risk of being so declared by the court.’ See, page 123 of “GUIDELINES TO INTERPRETATION OF NIGERIAN STATUES” BY OBANDE FESTUS OGBUINYA. The National Assembly lacks the authority to empower the commission to operate on State roads or any other road that is not a federal trunk road. — A.O. Obaseki-Adejumo, JCA.
⦿ DOCTRINE OF COVERING THE FIELD IN RELATION TO THE CONSTITUTION AND A LEGISLATION
The “doctrine of covering the field” applies where there are inconsistencies in construction of statutes. One of the ways in which the doctrine will apply is when either the National Assembly or the House of Assembly of a State makes a law on a subject matter or item which the Constitution has adequately catered for thereby covering the field of that subject matter. In this situation, the law made by the Legislature, will to the extent of the inconsistency, be declared inconsistent and rendered null and void. See, A.G ABIA STATE v. A.G FEDERATION (2006) 16 NV LR (PT. 1005) 265 @ 371-372, INEC v. MUSA (2003) LPELR-24927 (SC). — A.O. Obaseki-Adejumo, JCA.
⦿ DAMAGES – DAMAGES FOLLOW EVENT
Damages are the sum of money which a person who has been wronged is entitled to receive from the wrong doer as compensation for loss or injury, hence, no loss or injury, no award of damages. It is clear that the award of damages follows events. See, MUSTAPHA v. ABUBAKAR & ORS. (2022) LPELR 41830 (CA), FBN v. OJO (2022) LPELR-57503 (CA), KEYSTONE BANK LTD. v. ABDULGAFARU YUSUF & CO. LTD (2021) LPELR-55646 (CA), CRC CREDIT BUREAU LTD v. LONGTERM GLOBAL CAPITAL LTD & ANOR (2021) LPELR 55574 (CA), MRS OLUFUMILAYO ESTHER & ANOR v. TOPNOTCH PROPERTIES LIMITED (2017). — A.O. Obaseki-Adejumo, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Abimbola Osarugue Obaseki-Adejumo, JCA
⦿ FOR THE APPELLANT
Mazi Afam Osigwe (SAN).
⦿ FOR THE RESPONDENT
Olukunle Ogheneovo Edun Esq.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Federal High Court at Wairi Delta State delivered on 25/1/2019 coram EMEKA NWITE J. wherein judgment was entered in favour of the Respondent.
Brief facts of the case are that the Respondent (Plaintiff) by an Originating Summons commenced an action upon which the Appellant joined issues with the Respondent by filing a Counter Affidavit.
More specifically the Respondent sought for the following, inter alia, at the lower Court:
- A DECLARATION that by virtue of the clear provisions of section 1(3) and item 63 of Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Defendant lacks the vires, authority and/or power to exercise any jurisdiction regarding vehicular traffic, monitoring and enforcement in respect of States and Local Government roads in Nigeria.
- A DECLARATION that by virtue of the clear provisions of section 1(3) and item 63 of Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Defendant lacks the vires, authority and/or power to arrest, detain and/or prosecute the Plaintiff or any person regarding traffic violations on a State or Local Government road in Nigeria.
The Appellant being dissatisfied with the decision of the trial Court filed amended Notice of Appeal containing seven (7) grounds of appeal on 8/7/2022, Appellant’s Brief of Argument filed the same date.
➥ ISSUE(S) & RESOLUTION(S)
I. Did the trial court have jurisdiction to entertain the suit in the light of the failure of the Respondent’s counsel to sign Originating Summons?
RULING: IN RESPONDENT’S FAVOUR.
A. THE ORIGINATING PROCESS WAS SIGNED
[‘The cover page which goes with the document to be filed wholly shows that the counsel for the Respondent signed, his name, the name of the firm and the address as well as whom he is representing. Also, there is an NBA Stamp and Seal bearing the name of the Respondent counsel is on that same page of the Record which in my view sufficiently shows the identity of the counsel and confirms his name on the roll, his registration number at the rolls that the Counsel for the Respondent is properly enrolled and entitled to practice in Nigeria; even the written address attached to the Originating Summons is signed, stamped and also contains the name and firm of the counsel to the Respondent. The page in question, that is, page 5 contains the name of the counsel, the firm,. Registrar signature but omitted the signature of counsel. The identity of the counsel is revealed. Therefore, contrary to the argument of the Learned silk it will be stretching too far the demands of identification when the front copy together with other pages makes a complete process called. the Originating summons. I disagree that the lower Court of is robbed jurisdiction to hear the matter under the circumstances of this case. See also, EMEKA v CHUBA-IKPEAZU & ORS (2017) LPELR-41920 (SC), REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOD AREA v RAHMAN AKINDE (1967) NMLR 263, OKPE v FAN MILK PLC & ANOR (2016) LPELR-42562 (SC).’]
II. Did the National Assembly have legislative competence in enacting the Federal Road Safety Commission (Establishment) Act, 2007 to empower the Appellant to operate on all public roads in Nigeria?
RULING: IN RESPONDENT’S FAVOUR.
A. THE NATIONAL ASSEMBLY HAS NO COMPETENCE TO EMPOWER THE FRSC TO OPERATE ON STATE ROADS
[‘For ease of reference, I shall reproduce section 15 of the FRSC Act as follows: “The operation of the Corps shall cover all public highways.” Section 30 is the interpretation section of the FRSC Act, wherein Public Road was defined thus: “Public Road” means Federal, State or any type of road used for passage by commuters. A community reading of both sections is clear, section 30 qualifies section 15 of the FRSC ACT and restricts the public road definition to Federal, State or any type of road used by commuters. The provision of the Federal Highway Act, a subsidiary legislation of the Federal Road Safety Commission (Establishment) Act, federal highway in section 28 (1) (c) states; “Federal trunk roads within the context of item 63 part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999” Also, I take judicial notice of the provision of Section 1 of Federal Highways (Declaration) (No. 2) Order of 1st October 1974, it states that: “The roads specified in the in the Schedule are hereby declared to be Federal Highways.”’
‘I am inclined to apply the literal interpretation rule to the combined reading of section 4 (2) and item 63 part I of the 2nd Schedule of the constitution, section 15 of the FRSC Act and find that the operational jurisdiction of the Commission is limited to federal roads or federal trunk roads as specifically itemized in the Federal Highways (Declaration) (NO. 2) Order 1974. In my humble view, the provisions of the FRSC Act, especially section 30 which defines road to include state road, (which is the exclusive preserve of the State House of Assembly) and therefore are ultra vires the power of the National Assembly to legislate upon and as such unconstitutional. The source of the legislative competence of the National Assembly is the Constitution and in the circumstances of this case, the provision of section 15 and 30 of the FRSC Act cannot extend the scope of the legislative powers to include state roads.’]
III. Whether the trial Court was not right in awarding damages against the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DAMAGES AWARDED ARE IN ORDER
[‘Having established that the operations of the Appellant is limited to federal highways or federal trunk road, it then follows that any operation on any road other than a federal road by the Appellant is illegal and cannot attract any fine and this act has occasioned a breach on the Respondent’s fundamental human right. As such the Respondent is entitled to compensation for the wrong done by the Appellant therefore, the trial Court rightly awarded damages against the Appellant. I resolve this issue against the Appellant.’]
‘Having resolved all issues against the Appellant, the appeal fails, it lacks merit and is hereby dismissed. Judgment of the Federal High Court at Warri per EMEKA NWITE J. in SUIT NO. FHC/WR/CS/90/2017 delivered on 25/1/2019 is hereby affirmed. Cost of N200,000 is awarded against the Appellant.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Federal Road Safety Act;
National Road Traffic Regulations;
Federal Highway Declaration order.
➥ REFERENCED (CASE)
⦿ IF IT CANNOT BE SAID WHO SIGNED A PROCESS, THE PROCESS IS INCURABLY BAD
RHODES-VIVOUR, JSC in SLB CONSORTIUM v NNPC (2011) 9 NWLR (PT. 1252) P. 317 opined that: “Once it cannot be said who signed a process, it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e the Legal Practitioners Act)”
➥ REFERENCED (OTHERS)