Lagos State Traffic Management Authority & Ors V. Johnson O. Esezobo (2005)

LawGlobal-Hub Lead Judgment Report

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

This appeal is against the judgment of the High Court of Lagos State contained in the judgment of Adebiyi J. of 10th November, 2006.

The circumstances leading to this appeal is that the Respondent by a motion on notice dated 15th October, 2003 prayed the Lower Court for the enforcement of the Respondent’s Fundamental Rights pursuant to Order 2 Rule 1(1) of the Enforcement Procedure Rules of 1978 (sic). He also sought for a declaration that the arrest and forcible seizure of his Mercedes Benz 230 V-Boot Car with Registration No EU 894 AAA along Apapa Oshodi Expressway, a Federal Highway on August 26th, 2003 is a gross violation of the Respondent’s right to freedom of movement guaranteed under Section 41 of the 1999 Constitution and Section 12 of the African Charter of Human and Peoples Right (Ratification and Enforcement) Act Cap 10 amongst other reliefs. The Appellants filed a 19-paragraph Counter-Affidavit in opposition to the Appellant’s application. In a ruling dated 10th November, 2006, the Lower Court declared that the alleged forcible seizure as illegal; the imposition of N25,000.00 and N2,500.00 as fines as illegal. The court also ordered the release of the Respondent’s vehicle and the payment of N5,000.00 per day as damages for unlawful detention.

Being dissatisfied with the judgment of the Lower Court, the Appellants filed an Amended Notice of Appeal dated 27th October, 2009 containing seven Grounds of Appeal.

Appellants’ Brief settled by Olakunle Ligali Esq. of the Attorney-General’s Chamber, Lagos State Ministry of Justice, is dated and filed 27th October, 2009 but deemed properly filed 13th May, 2010 as well a Reply Brief dated and filed 11th May, 2015 but deemed properly filed 1st June, 2015. Therein, counsel formulated five (5) issues for determination as follows:

“1. Whether the trial court was competent to assume jurisdiction in view of the non-existent of 1st Appellant either as a corporate body or statutory corporation at the time of the institution of this case on 3rd of October, 2003. (Ground 3).

2. Whether the arrest and detention of the Respondent’s Mercedes Benz and eventual issuance of notification of fine constitute a violation of the Respondent’s right to fair hearing under Section 36 of the 1999 Constitution. (Grounds 2 and 7)
3. Whether the lawful detention of the Respondent’s vehicle preparatory to prosecution in view of the provisions of the laws allowing same amounts to violation of the Respondent’s right to immovable property. (Grounds 3 and 6)
4. Whether there was in existence reliably convincing evidence by the Appellants to controvert the Affidavit evidence of the Respondent. (Ground 4)
5. In the face of uncontroverted Affidavit evidence that the Respondent was driving against the direction of traffic thereby endangering his own life and the lives of other road users, (aside from his own uncooperative attitudes) whether the Respondent is entitled to N5,000 per day from August 26, 2003 until the date of release of the Respondent’s vehicle. (Grounds 5 and.7).”

On the other hand, the Respondent’s Brief is dated 25th June, 2010 and filed 28th June, 2010 but deemed properly filed 7th March, 2011. It was settled by the Appellant himself, that is, Johnson O. Esezoobo Esq. of J. Odion Esezoobo & Co. The three issues as formulated by the Respondent are as follows:

1. Whether Appellant’s issue one is not incompetent for lack of instructions or incapacity of instructions. A subsidiary issue from the issue is whether the Attorney-General of Lagos State has locus standi to defend the 1st Appellant or the 1st Appellant’s action in question in this suit.

This issue relates to and arises from Appellants’ Issue one

2. Whether the learned trial judge was wrong when he held that the fundamental right of the Respondent to a fair hearing as well as his right to property was violated by the Appellants’ detention of the Respondent’s car as well as the summary imposition of fines of N25,000.00 and N2,500.00 without arraignment before a court of law.

This issue relates to grounds 1, 2, 5 and 6 of the grounds of appeal

3. Whether the learned trial judge was not right when he held that the Respondent’s Affidavit evidence was uncontroverted and that the Respondent is entitled to the sum of N5,000.00 per day for unlawful detention of the vehicle from 26th August, 2003 until the date of release.

This issue relates to Grounds 3 & 4 of the grounds of appeal.

Meanwhile, the Respondent incorporated a notice of preliminary objection in his brief of argument. Counsel objected to the competence of the Appellants’ Notice of Appeal and the jurisdiction of the court to entertain the appeal as well to the competence of Grounds 1 to 6 of the Notice of Appeal and the issues formulated thereon. The grounds for the preliminary objection are as follows:

1. The Notice of Appeal is invalid or incompetent for non-compliance with Order 6 Rule 2.
2. Grounds 1 & 2 of the Notice of Appeal and Issues 2, 3, 6 & 7 formulated thereon are incompetent for lack of proper particulars.
3. Grounds 3 & 4 and Issues 3 & 4 formulated thereon are incompetent because while the finding of the Lower Court as to Respondent’s uncontroverted evidence was in relation to the damages only, the Appellants did not join issues on the claim of N5,000.00 damages per day.
4. Ground 5 and Issue 5 formulated thereon is incompetent because Appellants did not raise the issue and parties did not join issue on it at the Lower Court.
5. Issue one is incompetent for not being distillable from any of the grounds of appeal. But the same is a fresh issue and no leave has been obtained to raise and argue it”.

Proffering argument on the preliminary objection, Respondent submitted that the Appellants’ Notice of Appeal containing six grounds of appeal indicates that the appeal is against “part of the judgment” without specifying the part of the judgment as required by Order 6 Rule 2 of the Rules of Court which makes it mandatory for Appellants to so specify. He submitted further that compliance with the provision of that order is a pre-condition to commencing an appeal and by failing to specify such part of the judgment, the Notice of Appeal is incompetent and the court is incompetent to entertain it (sic). He referred to UKPABIO v. NFVCB (2009) 9 NWLR (PT.1092) 219 at 244 paras C-D; UWAZURIKE v AGF [2007] 8 NWLR (PT.1035) 1 at 17; N.I.W.A v. S.P.D.C NIG. LTD [2007] 1 NWLR (1015) 305 at 330 – 331; NWAIGWE & 2 ORS v. OKERE (2008) 5 – 6 SC (PT.II) 93 at 114 – 115; ODUNZE v. NWOSU [2007] 13 NWLR (PT.1050) 1 at 28 to submit that the Appellants’ Notice of Appeal together with all other processes filed thereupon, including the Appellants’ Brief are incompetent and liable to be struck out.

On Ground one and Issue one, Counsel argued that by virtue of Order 6 Rule 4 of the Court, a party cannot be heard on a ground not mentioned in the Notice of Appeal except with leave of court. Citing OSUJI v. EKEOCHA [2009] 1 NWLR (PT.1166) 81 at 122, he contended that Ground one/Issue one does not relate to the decision appealed against but the same is a fresh issue and to raise fresh issue, the Appellants must seek leave of court where leave is not of “law or constitutional point.” He relied on CONTRACT RESOURCES NIG LTD v STANDARD TRUST BANK LTD [2013] 6 NWLR (PT 1350) 260 – 275; OSUJI v. EKEOCHA (supra) at 122; UDZA UOR & ORS v PAUL LOKO (1988) 5 SC 25 at 27; SALAMI v OKE (1987) 4 NWLR (PT 63) 1 at 12; OTU v. ACB INT’L PLC [2008] 3 NWLR (PT.1072) 179 at 196 while submitting that issues are formulated from valid grounds of appeal, otherwise the grounds are incompetent. It is the submission of counsel that ground one and issue one formulated thereon are incompetent and liable to be struck out. Counsel submitted that the Apex court has defined what an issue is, how it is joined by the parties and the procedure for joining issues in several cases such as OVERSEAS CONSTRUCTION CO. NIG LTD v CREEK ENT. LTD [1985] 3 NWLR (PT.13) 409; NTUFAM EYO v. NTUFAM OKPA [2010] 6 NWLR (PT.1191) 611 at 631-632; EKE v. OKWARANYE [2001] 12 NWLR (PT.726) 18.

Respondent contended that in a matter commenced by Originating Summons like under the Fundamental Rights Procedure Rules, the Affidavit evidence constitutes the pleadings on which both sides rest their cases. He cited FAWEHINMI v. THE PRESIDENT [2007] 14 NWLR (PT.1054) 275.

He submitted that since the Appellants did not raise and the parties did not join issues at the trial on the non-existence of the 1st Appellant at the time of commencement of the action and having not first sought and obtained leave, the Appellants cannot validly draw a ground and formulate issue one thereon for the court to consider. Relying on MICRO-LION INT’L LTD v GADZAMA [2009] 15 NWLR (PT.1162) 481 at 500; N.I.W.A v. S.P.D.C (supra) at 329, he submitted that the rules of court must be obeyed. Referring to the record, he submitted that it is undisputable that the 1st Respondent is an agency of the Lagos State Government and that the admission by the 3rd Appellant at Page 10 paragraph 14 and 15 that the 1st Appellant acted on his instruction is relevant. He further submitted that all the cases cited by the Appellants are distinguishable particularly, as they never discussed meaning and difference between ‘legal personality’ and ‘juristic personality’ as well as the mode of acquiring the latter. Counsel submitted that the argument of the Appellants’ counsel that legal personality confers juristic personality is erroneous and it understates the law based on the authorities.

On Grounds 1 and 2 as well as Issues 2, 3, 6 and 7, Respondent submitted that the grounds are incompetent for lack of proper particulars highlighting the errors complained of in the ground(s) of appeal and that in this case, there is no relationship between the ground(s) and the particulars thereby leaving the ground(s) of appeal bare and consequently incompetent.

On Grounds 3 and 4 as well as Issues 3 and 4 formulated thereon, Counsel referred to Page 394 paragraph 3 of the records on the Lower Court’s finding before submitting that the Lower Court did not say that the Appellants did not file a counter Affidavit or that facts in the counter Affidavit did not controvert facts in the Respondent’s Affidavit evidence but that the Lower Court’s finding that Respondent’s affidavit evidence was uncontroverted was in relation to the claim of damages and in particular the sum of N5,000.00 per day. Thus, Ground 3 and the issue formulated on it overshot the finding of the Lower Court, as such cannot stand.

On Ground 4 relating to award of N5,000.00 per day and the Issue formulated thereon, counsel submitted that the issue was not agitated at the Lower Court and that the Appellant need leave of court to raise it. He submitted that Ground 4 and Issue 4 formulated on it are incompetent.

On Ground 5 and Issue 5, he submitted that neither the ground nor the issue was raised before the Lower Court and same is incompetent and ought to be struck out.

In response, Appellants’ counsel submitted that the preliminary objection of the Respondent is not only unfounded but also it is totally lacking in merit because the Court of Appeal is functus officio. He submitted further that the Respondent’s preliminary objection is a surreptitious invitation by the Respondent to the Court of Appeal to revisit the earlier two considered Rulings of this court on the validity of the Appellants’ Notice of Appeal. He cited AIC LTD v NNPC [2005] 11 NWLR [PT.937] 597 – 598 paras G – A; OGBORU v. IBORI [2005] 13 NWLR (PT.942) 319; SKIRLING CIVIL ENG. LTD v. YAHA [2005] 11 NWLR (PT.935) 181 SC.

On the issue of functus officio, Counsel further submitted that notwithstanding the Rulings of the Court validating the Notice of Appeal and despite the Respondent’s Counter Affidavit, the Appellants, with a deeming order, sought and obtained the leave of the Court pursuant to its Ruling of 13th May 2011, to amend the original Notice of Appeal dated 20th January, 2007, contained at Pages 396 to 400 of the record and that by the Amended Notice of Appeal filed on 27th October 2009, the Appellants fully and copiously stated that they are appealing against the whole decision of the Lower Court. He relied on NEPA v ANGO [2001] 15 NWLR (PT.373) 672 to argue that the preliminary-objection filed by the Respondent is incompetent as the objection is not against the entire appeal but against one or two grounds of appeal.

Counsel argued that even though the issue one distilled from ground one may be a fresh issue, it can be raised for the first time either at the Court of Appeal or indeed at the Supreme Court. He submitted that the jurisdictional issue as encapsulated in the Notice of Appeal is raised as ground one and same is not outside the contemplation of the Amended Notice of Appeal as contended by the Respondent. He submitted that all the cases cited by the Respondent do not support his position as they bear no relevance to the case. It is also the submission of counsel that the preliminary objection and all other issues relating thereto have no foundation in law and/or equity and same should be rejected as unmeritorious.

Let me hasten to state that the bulk of the grounds of objection raised by the Respondent as reproduced above have been dealt with by the rulings of this court dated 13th May, 2010 and 13th May, 2011.

By virtue of the ruling of 13th May, 2011, reported in LASTMA & ORS v. EZEZOOBO [2012] 3 NWLR (PT.1286) 49, the court granted leave to the Appellants to amend their Notice of Appeal dated 20th January, 2007 in the manner underlined in the proposed amended notice of appeal and the notice of appeal filed on 27th October, 2009 was deemed properly filed on 13th May, 2011. Therefore it is the amended notice of appeal that is deemed to be properly before this court so that the earlier notice(s) of appeal are deemed non-existent. Respondent had argued that the Appellants failed to specify the part of the decision of the Lower Court they are appealing against. No doubt, the Respondent’s argument seems to me not only to be a misconception but also an unavoidable failure of the Respondent to appreciate the consequence of the ruling of this court of 13th May, 2010 where the court effectively addressed the issue of the part of the judgment appealed against. More so, a careful perusal of the amended notice of appeal reveals that Appellants are appealing against ‘the whole decision’ of Adebiyi J. of the Lagos State High Court delivered on 10th November, 2006.

Furthermore, the Appellant contended but also that the appeal is predicated upon seven grounds as against six grounds as alleged by the Respondent. It is apparent that the Respondent is mistaken as to the Notice of Appeal that is the foundation of this appeal. As I earlier stated, by virtue of the court’s ruling of 13th May, 2011, the court granted the Appellants leave to amend their Notice of Appeal earlier filed and by that order, it is the Amended Notice of Appeal dated 27th October, 2011 and filed on the same day but deemed properly filed on 13th May, 2011 that is now properly before this court and it is on the same that this court will act upon. I have taken a look at the Amended Notice of Appeal and I find that there are seven grounds of appeal contained therein. For the purpose of clarity, I shall reproduce the grounds of appeal devoid of the particulars of error, thus:

“1. GROUND ONE

The learned trial judge (the Lower Court) lack jurisdiction to entertain the Claimant’s Respondent’s suit for incompetence of the suit at the time of the institution of the case.

2. GROUND TWO

The learned trial judge erred in law when he held that the detention of the Applicant/Respondent’s vehicle and issuance of notification of fine constitutes a violation of the Applicant’s/Respondent’s right to fair hearing.

3. GROUND THREE

The Learned trial judge erred in law when he held that having failed to prosecute the Applicant the detention of the Applicant/Respondent’ vehicle amounted to violation of his right to immovable property.

4. GROUND FOUR

The learned trial judge erred in law when she held that the affidavit evidence of the Applicant was uncontroverted.

5. GROUND FIVE

The learned trial judge erred in law when she held that the Respondent is entitled to the N5,000.00 per day claimed for the unlawful detention and loss of use of his vehicle from 26th August 2003 until the date of release of the vehicle.

6. GROUND SIX

The learned trial judge erred in law when she held that the fundamental rights of the Respondents to fair hearing and to property were infringed upon by the Appellants.

7. GROUND SEVEN

The learned trial judge erred in law when she held that the fine of N25,000.00 and N2,000.00 summarily imposed on the Applicant for allegedly driving on a one way Street and for forcibly towing the vehicle are null and void and they are unconstitutional.”

On the Respondent’s objection that ground one of the Notice of Appeal does not relate to the decision appealed against but that it is a fresh issue; I am aware and it is apparent from the above reproduced grounds of appeal that ground one is a complaint that touches on the jurisdiction of the Lower Court. Authorities abound on the settled position of the law that the issue of jurisdiction is a notorious one that can be raised at any time of a proceeding even for the first time in an appeal. The issue of jurisdiction is so fundamental to any proceeding as it goes to the competence of the court. See OLOBA v AKEREJA [1988] 3 NWLR (PT.84) 508; OLUTOLA v UNILORIN [2004] 18 NWLR (PT.905) 416; ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT.905) 319; ZAKARI V. NIGERIAN ARMY (2015) LPELR -24721 (SC); IBRAHIM V. LAWAL (2015) LPELR -24736 (SC).

Therefore, it is erroneous for the Respondent to think or argue as he has done that the Appellants could not raise the issue of jurisdiction of the Lower Court as a fresh issue before this court without leave. I agree with the Appellants counsel that the issue of jurisdiction is exceptional in this regard.

More so, as it relates to grounds 2 to 5, I am of the firm view that not only is the objection of the Respondent thereon illogical, arguments thereon are also irrelevant to the merit of the preliminary objection as well as the appeal. A careful perusal of the grounds of appeal will reveal that all the grounds touches on several aspects of the Lower Court’s decision and that the Appellants complaints are directed towards the portion of the judgment in which they have felt aggrieved.

To this extent, I find no substance in the preliminary objection of the Respondent. Same is hereby overruled.

As earlier noted, the Appellant has formulated four issues for determination and I am of the firm view that the issues so formulated conveniently address the complaint against the decision of the Lower Court. To this extent, I shall adopt the issues as formulated by the Appellants.

ISSUE ONE

Appellants’ counsel submitted that at the time of the institution of this case which was 3rd October 2003, the 1st Appellant (1st Respondent at the Lower Court) was not in existence whether as a corporate body or a statutory corporation. Counsel argued that the enabling law, Lagos State Traffic Management Authority Law No 9 of Vol. 37 now Cap L91, 2004 enacted by the House of Assembly of Lagos State, creating the 1st Appellant, after receiving the executive blessing came into effect on the 2nd of June 2004, several months before the institution of the Respondent’s case in October 2003. Counsel submitted that at the commencement of an action, the party to be made as defendant must be a juristic person or a natural person existing at the time the action is instituted, otherwise the action or suit will be incompetent and the court will lack jurisdiction to entertain the suit. He cited AGBONMAGBE BANK LTD V. GENERAL MANAGER G. B OLIVANT LTD & ANOR (1961) ALL NLR 116. He further submitted that where a proper party is not before the court, the court is without jurisdiction to adjudicate and that it is incontestable that as at the commencement of the Respondent’s action, the 1st Appellant was a stranger totally unknown to the law and therefore improper as a principal party in the Respondent’s action. He relied on OLORIODE v. OYEBI (1984) 1 SCNLR 390; ONWUNALU v. OSADEME [1971] ALL NLR (PT.1) 14; EKPERE v. AFORIJE (1972) 1 ALL NLR 220; AMUDA v. AJOBO [1995] 7 NWLR (PT 406) 170; PLATEAU STATE V. A.G. FEDERATION [2006] 3 NWLR (PT.967) 346 at 423 paras B – C. It is also the submission of counsel that where an action is not properly constituted like the Respondent’s action, the court is without jurisdiction to adjudicate and no matter how well conducted, the steps taken in the proceedings will be a nullity. He placed reliance on MOZIE v. MBANALU [2006] 15 NWLR (PT.1003) 466; SKEM CONSULT NIG LTD v. UKEY (1981) 1 SC 6; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; A-G FEDERATION v. GUARDIAN NEWSPAPERS LTD [1999] 9 NWLR (PT.618) 187. He also submitted that the view that it is only one of the parties that was improper or non-existent only begs the question as it is imperative that all the parties before the court must be proper parties. He cited AYOOLA v. BARUEA (1999) II NWLR (PT.628) 595; CHRISTABEN GROUP LTD v. ONE [2008] II NWLR (PT.1097) 84 at 117 paras D-E. Counsel then submitted that the trial judge erred when he referred and quoted copiously from the provisions of the Lagos State Traffic Management Authority Law establishing the 1st Appellant as applying to the case and the traffic offences committed by the Respondent in 2003.

In response, Respondent firstly submitted on the basis of what he termed ‘subsidiary issue on the Appellants’ issue one’. I noted that not only is what the Respondent termed ‘subsidiary issue’ at best a ground of objection that ought to have been raised along with the other grounds and arguments contained in the Respondent’s preliminary objection, but also that the Respondent failed to proffer argument that is of relevance to the issue at hand. Rather, Respondent invariably conceded to the argument of the learned counsel of the Appellants in respect of the first issue as formulated by the Appellant. To this extent, I will disregard and discountenance the so called ‘subsidiary issue’ and arguments thereon but will move on to analyse the argument of counsel in response to the first issue formulated by the Appellants.

Responding to the first issue, Respondent submitted that the argument of Appellants’ counsel that the Appellant was not in existence as at the time of commencement of the suit is erroneous as the 1st Appellant existed in fact at all time save that its enabling law was yet to receive executive blessing. He submitted further that the Appellants’ argument that the 1st Appellant was a non-juristic entity is erroneous and too simplistic to meet the challenge the peculiar facts of the case pose. Counsel submitted that Appellants’ submissions over sighted peculiar circumstances of this case and the judicial perspective in the acquisition of juristic personality. He contended that the law has advanced beyond AGBONMAGBE BANK LTD v. GENERAL MANAGER G. B. OLIVANT LTD (supra) and that all the authorities cited by the Appellants are misconceived and inapplicable. It is his submission that no law says a body can only be invested with juristic personality by a statute and that juristic personality can be acquired or accorded a body corporate or unincorporated in three ways namely by a statute; under common law and by the court. He cited FAWEHINMI v. NBA (No.2) [1989] ALL NLR 278; UZOHO V. NPC [2007] 10 NWLR (PT.1042) 320; THOMAS v. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 ALL NLR 168; BAMAIYI v AGF [2001] ALL FWLR (PT 64) 344. He submitted that where a body ‘not known to law, a total stranger’ is sued along with its ‘creator’, the Chief Law Officer, the suit cannot be said not to be properly constituted especially as Appellants have not denied setting up the 1st Appellant and/or operating through it at the relevant time.

Relying on Section 18 of the Interpretation Act; THOMAS v. LOCAL GOVT COMMISSION (supra); NKPORONWI v EJIRE [2009] 9 NWLR (PT.1145) 131 at 180; ETALUKE v NBC PLC [2004] 15 NWLR (PT 896) 370, he submitted that what constitutes ‘a person’ under the law is not exhaustive and that the Justice of this case demands that the court should accord the 1st Appellant juristic personality to meet the basic principle of ubi jus ibi remedium that underlines the Nigerian legal system. It is also the submission that the fact that the 1st Appellant was yet to receive executive blessing at the commencement of the suit on 3rd October 2003 is not fatal for its undisputed wrongful act. Counsel urged the court to hold in his favour.

It has been stated over and over again so much more that it has been firmly established beyond any dint of controversy right from the time of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 that jurisdiction is the life and blood of every adjudicatory process. A court must be properly seised of the matter before it, otherwise any proceedings conducted thereon shall be deemed a nullity. At Page 595 of Madukolu’s case (supra), BAIRAMAN FJ echoed thus:

“Put briefly, a court is competent when

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal for the proceedings are nullity however well conducted and decided; the defect is extrinsic to the adjudication”

In the instant appeal, it is the argument of Learned Counsel on behalf of the Appellants that the Lower Court was not competent to assume jurisdiction in respect of the suit as instituted by the Plaintiff/Respondent, in view of the fact of the non-existence of the 1st Appellant either as a corporate body or statutory corporation at the time of the institution of the suit on 3rd October, 2003. I noted from the Respondent’s response to the argument of the Appellants’ counsel that the Respondent not only failed to proffer any argument in contradiction to the Appellants’ argument; rather, he impliedly conceded to the argument.

It is not in dispute that the 1st Appellant is a statutory body set up by the Lagos State Government, what is to be determined is whether at the time of commencement of the suit leading to this appeal, it’s existence was recognised under the law. The law that established the 1st Appellant is the Lagos State Traffic Management Authority Law (LASTMA LAW) Cap L91 Laws of Lagos State 2004. Section 1 of the Law provides:

“(1) There shall be established a body to be known as the Lagos State Traffic Management Authority (referred to in this Law as the “Authority”).

(2) The Authority shall –

(a) be a corporate body with perpetual succession and a common seal;

(b) have power to sue and be sued in its corporate name; and

(c) be capable of holding, purchasing, acquiring and disposing of property moveable or immoveable, for the purpose of exercising its functions specified in this Law.”

While Section 26 of the Law provides:

“This Law may be cited as the Lagos State Traffic Management Authority Law and shall commence on the 2nd day June 2004”

The combined effect of the above provision is that unless the contrary is shown, the establishment of the 1st Appellant was established on the 2nd of June, 2004 when the Law commenced. No doubt, 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. From the facts of the instant case, it is clear that the Plaintiff commenced the suit on the 3rd day of October 2003, more than eight (8) months before the LASTMA LAW establishing the 1st Appellant. As at that time, the 1st Appellant was apparently non-existent and incapable of being sued.

The legal personality of a statutory corporation (like the 1st Appellant) is conferred on it expressly or impliedly by the statute creating same. The statute confers on the body the essential attributes of a juristic person. Where an action is brought against a body and such body is not a juristic person at the time of the institution of the action, such a body is not a competent party. Naming such an incompetent/non-juristic person as a party is not a misnomer, that is, the use of the wrong name of a juristic person, which could be amended to substitute a juristic person. See NIGERIAN NURSES ASSOCIATION & ANOR v. A-G FEDERATION (1981) 11 – 12 SC (REPRINT) 1; ALHAJI NURUDEEN AKINOLA LAWAL v. NEPA (1976) 3 SC (REPRINT) 116; AGBONMAGBE BANK LTD v GENERAL MANAGER, G.B OLIVANT LTD & ANOR (1961) ALL NLR 21. As a general rule, a Plaintiff commencing an action and the person to be made defendant to the action must be juristic persons or natural persons existing at the time action was commenced, otherwise the action will be incompetent and the court will lack the jurisdiction to entertain the matter. See OKECHUKWU & SONS v NDAH (1976) NMLR 368. Suing a non-juristic party renders whatever proceeding conducted thereon a nullity.

The 1st Appellant owes its birth and life to the LASTMA LAW which has not yet been enacted or commenced as at the time the cause of action in this suit arose and as at the time the Respondent commenced the suit against the Appellants. To this extent, I am of the firm view that since the 1st Appellant was legally non-existent as at the time the action was commenced against it; the proceedings and judgment given against it by the Lower Court was a nullity. To this extent, the 1st Appellant’s name is struck out.

Now, the question that arises is: “whether the suit as instituted by the Respondent is still competent notwithstanding the striking out of the 1st Appellant for being a non-juristic person?” It is apparent that 1st Appellant, though not a juristic person at the time of the commencement of the suit, was ipso facto a body set up by the Lagos State Government for the management of traffic in Lagos.

This is evident from the fine issued on the Respondent on the alleged offence committed by him as well as the letter of referral of the Respondent to the Medical Director of Yaba Psychiatric Hospital for the determination of his mental state of health. See Pages 14 and 15 of the records. Even though, as earlier stated, the authority was legally non-existent, its factual existence is undisputed. The 4th Appellant has not denied the fact that the Lagos State Traffic Management Authority was not a body set up by the Lagos State Government under the Ministry of Transport headed by the 3rd Appellant. As evident from the grounds upon which the Respondent sought reliefs from the Lower Court, at Page 8 of the records, the 2nd Appellant joined as a party to the suit as a result of the fact that he was “an officer of the (1st Appellant) through whom the (Appellants) unlawfully arrested the (Respondent) and illegally impound (his vehicle)”. More so, the 2nd Appellant, Mr. Giwa, was the apprehending officer as indicated on the face of the fine ticket issued to the Respondent. He was nonetheless sued in his own name. He is no doubt a legal personality.

More so, the 3rd Appellant, the Commissioner for Transport was appointed pursuant to Section 192 of the 1999 Constitution by the Governor of Lagos State. The Officers including the 2nd Appellant, whose name is indicated on the fine ticket as the apprehending officer were undoubtedly working for the Ministry of Transport headed by the 3rd Appellant. On his own, the 4th Appellant is a creation of the Constitution and has legal personality. His appointment is made pursuant to Section 195 of the Constitution by the Governor of the State. He is the Chief Law Officer of the Government of the State. In that capacity, he can sue and be sued in such matters affecting the State or its servant. See the dictum of TOBI JSC in A.G ANAMBRA STATE v. A.G FEDERATION [2007] 12 NWLR (PT.1047) 1; (2007) LPELR – 603 (SC); EZOMO v. A.G OF BENDEL STATE [1986] NWLR (PT.36) 448; A.G KANO STATE v. A.G FEDERATION [2007] 6 NWLR (PT.1029) 164.

In any claim or suit against the Government of a State, the proper defendant is the Attorney-General of the State. It is also a legal personality. It is therefore undisputed that the claim of the Respondent is against the State Government for acts allegedly done by its servants, which a body (taskforce or committee) is set up by it. The 2nd to 3rd Appellants were made parties to the suit by virtue of their official capacity as officers acting on behalf of the State Government.

From the foregoing, it is clear that notwithstanding the striking out of the 1st Appellant as a non-juristic person, the action survives as against the 2nd, 3rd and 4th Appellant.

Therefore, Issue 1 is resolved partly in favour of the Respondent.

ISSUES TWO AND THREE

Appellants’ counsel submitted that the Respondent’s right to immoveable property was never an issue at the Lower Court so that the Lower Court’s finding and consequent decision on same is unfounded and ought to be set aside. He contended that the arrest and detention of the Respondent’s car and eventual issuance of notification of fines do not constitute violation of the Respondent’s right to fair hearing under Section 36 of the Constitution. He relied on Section 36(2)(b) of the Constitution and Sections 18 and 19 of the Central Licensing Authority Law Cap C8, Laws of Lagos State 2003 as well as Section 17 of the Road Traffic Law Cap R10 Laws of Lagos State 2003 to submit that the steps taken by the Appellants are statutorily recognized preceding the eventual criminal prosecution in the law court. Counsel submitted that the steps taken by the Respondent are in conformity with the provisions of Section 44(2)(f) and (k) of the Constitution and that the trial judge erred to have held to the contrary. He also submitted that the failure of the trial judge to dismiss the suit for failure of the Respondent to ensure compliance with the laws of the State regulating traffic amounts to grave miscarriage of Justice. He cited BAYERO v. CRUSADER INSURANCE CORPORATION [1998] 6 NWLR (PT.553) 213 at 226, PER IGE JCA. He referred C. C. (NIG) PLC v. A.G. ANAMBRA STATE [1992] 8 NWLR (PT.261) 528 at 556 to submit that where statute provides for a particular method of performing a duty regulated by statute, like Cap C8 and Cap R10 and the Constitution, it is that method and no other, that must be adopted. He further submitted that the Respondent has liberty to waive his right to a court trial by paying the fines as stipulated in the fine ticket because it is only after default of payment of the fines as notified that a charge can be preferred against the offender in the court, but that the commencement of the instant proceedings had prevented the criminal prosecution of the Respondent.

Respondent submitted that the learned trial judge validly made the observation that LASTMA LAW was enacted in 2004 and by that found in favour of the Respondent without saying so in express words. He submitted that the finding of the Lower Court was made on hard facts and that an appellate court will not disturb a finding of facts unless it is found to be perverse or not supported by facts/evidence on record. Counsel contended that the finding of the Lower Court as to ‘immoveable property’ is a mere clerical slip and is not fatal and that all the parties knew that the Lower Court was referring to the Respondent’s Mercedes car that was detained by the Appellants and that the Appellants have not alleged any miscarriage occasioned by the minor clerical slip. Respondent argued that the Appellants cannot be allowed to speak from both sides of the mouth by alleging on the one hand that the 1st Appellant was not a legal entity known to law as at the time of commencement of the suit and on the other hand, arguing that the same non-existent 1st Appellant could validly execute the actions challenged in the suit under the laws that pre-existed it. He urged the court to resolve the two issues in his favour.

The 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:

2. 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 persons whose rights and obligations may be affected to make representations to the administering authority before that 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 moveable property or any interest in an immoveable 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 any 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 that part of Nigeria.

2. Nothing in subsection (1) of this section shall be construed as affecting any general law –

a. for the imposition or 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 property 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 be 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 Licencing Authority Law Cap C8 Laws of 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 punishable as specified in Schedule 2A of this Law.

(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 a removed vehicle park.”

Section 19 states:

“Any person who commits any of the offences as specified in Schedule 2A to this Law shall be arrested without warrant by a Police Officer, Vehicle Inspection Officer, any member of the Task Force set up by the Governor or any Traffic Management Officer acting upon the instructions of the Commissioner.”

Section 17 of Cap R10 provides:

Neither the Government nor any council shall incur any liability in respect of any injury, damage or loss which may accrue to any person or property through the failure of any highway to sustain any vehicle.

Upon a combined reading of the above provisions of the law, I find no provision wherein the Appellants were empowered to issue a fine ticket of N25,000.00 and N5,000.00 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 2A 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 1st Respondent have not stated that they belong to the Central Licensing Authority and have not also claimed to worked for them either by Affidavit or otherwise. Even, they did not carry out their acts in accordance with the provisions of the law. See SAUDE v. ABDULLAHI [1989] 4 NWLR (PT.116) 387; FBN PLC v. NDOMA-EGBA [2006] AFWLR (PT.302) 1012; A-G ABIA STATE v. 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 states:

“Nether the Government nor any council shall incur any liability in respect of any injury, damage or loss which may accrue to any person or property through the failure of 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 as 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 law backing their action.

Meanwhile, Learned Appellants’ counsel has argued that the finding and consequent decision of the Lower Court that the “detention of the vehicle amounts to violation of the (Respondent’s) right to his immoveable property” is unfounded because the Respondent’s right to immoveable property was never an issue for consideration at the Lower Court. I am inclined to agree with the submission of the Respondent that this is a mere slip on the part of the learned trial judge which has not affected the substance of the decision of the court. In fact, a careful perusal of the judgment of the Lower Court, particularly at Page 394 of the record, reveals that it is the Respondent’s vehicle which was seized that is being referred to by the learned judge. No one has been mistaken on this fact. Appellants’ counsel ought to be mindful that it is not every mistake or error in a judgment that will result in the interference with the decision of a trial court by the Appellate Court. Courts are presided over by human beings and being human, they are prone to mistakes and slips in the course of execution of their judicial functions. Such slips or errors are not swept under the carpet but are corrected and amended by the Appellate Courts in the interest of Justice. See Philip Nnaemeka-Agu (CON): Manual of Brief Writing in the Court of Appeal and Supreme Court of Nigeria (Revised Edition) by Tom Anyafulude (2012) at P.73; NDULUE v IBEZIM (2012) 12 NWLR (PT.780) 139 at 151 – 152.

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 judgment while resolving issue 1, as at the time the cause of action arose as well as the commencement of this action, the LASTMA LAW had not been enacted. The commencement date 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 in existence as at time the cause of action arose. In ROSSEK & ORS v. A.C.B LTD [1993] 10 SCNJ 20; [1993] LPELR – 2955 (SC) at pp.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 change 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 v. Dosunmu (1989) 2 NWLR (Pt.111) 522; Alao v. Akano (1988) 1 NWLR (Pt.71) and Uwaifo v. Attorney-General of Bendel State (1982) 7 SC 124…”

See also OBIWEUBI v 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.

However, before I draw the curtain on this appeal, I must not fail to comment on the unavoidable duplication of arguments as well as irrelevant analogies contained in the Respondent Brief. In this respect, I will reproduce a portion of the lead judgment in CHIMA OGBONNAYA v. FIRST BANK NIGERIA PLC in Appeal No.CA/L/719/2013 delivered on 26th May, 2015 and reported in [2015] LPELR – 24731 where I observed particularly at page 17 thus:

“I need not remind (Respondent’s) counsel that the hallmarks of a good brief of argument is accuracy, brevity and clarity. Briefs are meant to assist the court in the administration and promotion of the course of Justice. In SHELL PETROLEUM DEV. CO. OF NIGERIA LTD v. FEDERAL BOARD OF INTERNAL REVENUE (1996) 8 NWLR (PT.466) 256; (1996) LPELR -3049 (SC) at 16, paras A-B, the Supreme Court, PER UWAIS CJN, held:

“It is well settled, as a rule of practice, that a well written brief of argument should be brief and concise, containing statement of facts of the case which are material to the consideration of the questions presented for determination by the court. It should also contain direct, concise and succinct statement of the argument in the appeal.” See also PORTS & CARGO HOLDING SERVICES CO. LTD & ANOR v. MIGFO NIGERIA LTD & ANOR (2012) 18 NWLR (PT.1333) 555 at 577 G-H (SC); ABDULLAHI V. HASHIDU [1999] 4 NWLR (PT.600) 638; (1999) LPELR 6504 (CA).” (Bracket Mine)

Perhaps, if cases are won only by arguments contained in the briefs of arguments and not on the position of the law on a particular issue or subject matter in dispute, the result of this appeal may have gone the other way round. Not only is the Respondent’s brief of argument replete with illogical and sometimes irrelevant arguments, it was inelegantly written with several duplication of arguments thereby resulting in a 39 page brief. As earlier stated, the essence of briefs of argument is to assist the court in its progressive efforts towards achieving substantial Justice in every given circumstances and not the contrary. I need not say more.

Meanwhile, having resolved the first issue partly in favour of the Respondent and Issues 2 & 3 in favour of the Respondent, I need not address the other issues as it would amount to a mere academic exercise in view of the fact that the alleged act of the 2nd and 3rd Appellants that is not backed by any law.

Therefore, this appeal lacks merit and is hereby dismissed. The judgment of Adebiyi J. of the Lagos State High Court of Justice delivered on 10th November, 2006 is partly affirmed. The sum of (Fifty Thousand Naira) N50,000.00 is awarded as costs in favour of the Respondent.

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Other Citations: (2005)LCN/1805(CA)