Features  |  Law  

It is impossible for any corporation or agency that owes its existence to a statute, to have been in existence before the law creating such body was enacted (3)

By JOHNSON O. ESEZOBO   |   01 September 2015   |   2:14 am  

Scale-of-justiceThe first port of call in the determination of the issues at hand is Section 36 of the 1999 Constitution which guarantees a citizen’s right to fair hearing as well as the other provisions referred to by counsel. Section 36(2) referred to by the Appellants’ counsel provides: 1. Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law- (a) Provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority makes the decision affecting that person; and (b) Contains no provision making the determination of the administering authority final and conclusive.

Section 44 states. 1. No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any party of Nigeria except in the manner and for the purposes prescribed by a law that, among other things- (a) Requires the prompt payment of compensation therefore and (b) Gives to person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in the part of Nigeria. 1. Noting in subsection (1) of this section shall be constructed as affecting any general law. (a) For the imposition of enforcement of any tax, rate or duty; (b) For the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence; (c) Relating to the temporary taking of possession of properly for the purpose of any examination, investigation or enquiry;…”

It is apparent from the above provisions of the Constitution that the rights of every citizen of this country to fair hearing as well as ownership of property have been ultimately guaranteed. Except as provided under the Constitution, no person or authority shall allowed to threaten or violate the rights of any citizen. The Appellants’ counsel has argued that the Appellants acted within the purview of Section 18 and 19 of the Central Licensing Authority Law Cap C8 Laws Lagos State 2003 as well as Section 17 of the Road Traffic Law Cap R10 laws of Lagos State 2003. Section 18 of Cap C8 provides:
“18. (1) Any person who does any acts specified in Schedule 2A shall be guilty of an offence punishment as (2)The Authority shall have power to impound vehicles for an offence committed under subsection (1) of this section and cause the vehicle to be removed to s removed vehicle park.”

Section 19 states: “Any person who commits any of the offence as specified Schedule 2A to this law shall be arrested without warrant by a Police Officer. Vehicle inspection Officer any member of Task Force set up by the Governor or any Traffic Management Officer acting upon the instructions of the Commissioner.”
Section 7 of Cap C8 provides:
Neither the Government nor any council shall incur any liability in respect of any injury, damage or loss which any accrue to any highway to sustain any vehicle.

Upon a combined reading of the above provisions of law, I find no provision wherein the Appellants were empowered to issue s fine a fine ticket of N25, 000.00 and N 5,000.00 for towing fee as well as a referral to Psychiatric Hospital as was done in the instant case. The Appellants have failed to indicate the alleged offence committed by the Respondent as specified under Schedule 2A of Cap C8 albeit the fact that the only specified offence relating to ‘one way’ driving as alleged by the Appellants is ‘driving in direction prohibited by the Road Traffic Law (RTL) in paragraph (vii) of Schedule 2S and the fines indicated therein is the sum of N2,500.00. In fact, I must state that the Authority referred to in Section 18 of Cap C8 is the authority established pursuant to Section 1 of the Law which is the Central Licensing Authority contrary to the argument of the Appellants’ counsel. Section 20 of the Central Licensing Authority Law defines “Authority” to mean “The Central Licensing Authority.” The officers including the 2nd Appellant that apprehended the n1st Respondent have not also claimed to worked for them either by Authority and Affidavit or otherwise.

Even, they did not carry out their acts in accordance with the provisions of the law. See SAUDE vs. ABDULLAHI (1989) 4 NWLR (PT. 116) 387; FBN PLC vs. NDOMA-EGBA (2006) AFWLR (PT 302) 1012; A-G ABIA STATE vs. A-G FEDERATION (2006) 16 NWLR (PT 1005) 265; GOVERNOR OF LAGOS STATE (1986) 1 NWLR (PT. 18) 621. On the other hand, Section 19 merely provides for the arrest of the alleged offender and not impounding of the offender’s vehicle. Meanwhile, it is apparent that the provision of Section 17 of the RTL Cap R10 referred to by the Appellants is irrelevant to the instant case. It merely provides inter alia that Government and/or its agencies are not liable for failure of highway to sustain vehicle. It does not extend beyond that. The Section state:
Neither the Government nor any council shall incur any liability in respect of any injury, damage or loss which any accrue to any highway to sustain any vehicle.

Furthermore, I take judicial notice of the fine ticket issued to the Respondent in respect of his alleged ‘one way’ driving. See Page 14 of the Record. It is apparent on the face of the ticket that same is headed “Notification of Traffic Offences” and issued by the Lagos State Traffic Management Authority of the Lagos State Government in accordance with Lagos State Road Traffic Law and Edict No 8/1999 of 1994 amended wherein the Respondent was fined N25,000.00 for the violation and N5,000.00 for towing charge, which was not provided from under any law in existence as at that time. I have perused the entire 51 Sections of the Road Traffic Law as well as the Edict and I find nowhere in the law where the Appellants were empowered to impound the Respondent’s vehicle or impose the fine as was done in this case. To this extent, the learned trial judge was right when she held that the Appellants act of detention of the applicant’s vehicle and issuance of notification of fine constitutes a violation of the Respondent’s right to fair hearing and right to moveable property in the absence of any backing their action.

However, let me hasten to state that the learned trial judge was in error to the extent that he referred to and relied upon the provisions of the Lagos State Traffic Management Law, Cap L91 Laws of Lagos State in relation to the instant case. As earlier stated in the course of this as well as the commencement of this action, the LASTMA LAW had not been enacted. The commencement dated is 2nd June 2004. The Law clearly does not apply in the instant case. The law is settled that the relevant law applicable to a cause of action is the one that was existence as at time the cause of action arose. In ROSSEK & ORS vs. A.C.B LTD (1993) 10 SCNJ 20; (1993) LPELR-2955 (SC) AT APP. 111 – 112, the Supreme Court, PER BELLO JSC held:
“It is trite law that the substantive law existing at the time a cause of action arises governs the determination of the action and the rights and obligations of parties must be determined in accordance with the substantive law when the cause of action arises. A charge of law after the cause of action has arisen will not affect accrued rights and obligation unless the change is made retrospective: Attorney-General of Lagos State vs. Dosunmu (1989) 2 NWLR (PT. 111) 522; Alao vs. Akano (1988) NWLR (PT. 71) and Uwaifo vs. Attorney-General of Bendel State (1982) 7 SC 124…”
See also OBIWEUBI vs. CENTRAL BANK OF NIGERIA (2011) LPELR- 2185 (SC)

In the light of the foregoing, I resolve issue 2 and 3 in favour of the Respondent.



You may also like