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.