Federal Road Safety Commission V. Emmanuel A. Ofoegbu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is from the judgment of the Federal High Court sitting at Lagos (the court below) whereby it granted reliefs enforcing the respondent’s fundamental rights against arrest by the appellant and/or the impounding of the respondent’s private vehicle by the appellant.

In outline, the respondent,by an application for the enforcement of his fundamental rights brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, alleged imminent threat to the violation of his right to personal liberty or freedom of movement by the appellant who had issued ultimatum that it would arrest owners of all motor vehicles and impound their vehicles from 01.10.13, if the owners had not complied with the new motor vehicle regulations made by the appellant mandating motor vehicle owners to replace their old number plates with new number plates of enhanced/increased fee specified by the National Road Traffic Regulations 2012 ( Regulations 2012).

Apprehensive of the consequences of the ultimatum, the respondent who at all material times owned a toyota camry model car with registration number plate GT 454 AAA issued on 18.3.13 to expire on 17.3.14 launched the application at the court below to forestall the implementation of the ultimatum on his motor vehicle and himself.

Issues having been joined on the application by the respondent and the appellant, the court below held in its judgment that there was indeed a threat by the appellant to infringe the fundamental rights of the respondent as alleged in the application by the respondent. The court below proceeded to grant the reliefs sought by the respondent in their entirety.

The court below also issued a permanent injunction against the appellant restraining it from arresting the respondent and/or impounding his motor vehicle in question with respect to the issue of the bid by the appellant to enforce the new motor vehicle Regulations 2012. Not satisfied with the judgment of the court below, the appellant filed a notice of appeal bearing six (6) grounds of appeal on 15.04.14. A brief of argument was later filed by the appellant on 05.06.14.

A preliminary objection was raised and argued in the respondent’s brief filed on 9.7.14 against the appellant’s brief of argument to the effect it was signed by senior counsel who described himself as “RESPONDENT’S COUNSEL”, therefore the brief is fundamentally defective and should be struck out on that ground and the appeal dismissed in consequence, as there would be no brief sustaining the appeal vide Order 18 rules 2, 3 (1) and 10 of the Court of Appeal Rules, 2011. (Rules of the Court).

Learned senior counsel for the appellant argued against the preliminary objection in the reply brief that the mistake is typographical and did not mislead the respondent on the identity of the owner of the brief, more so the senior counsel that settled the brief is the same senior counsel that filed the notice of appeal on behalf of the appellant, so the preliminary objection should be overruled for being frivolous citing in support the case of Registered Trustees of Airline Operators of Nigeria v. Nigeria Airspace Management Agency (2004) 8 NWLR 1 at 30 – 31.

In my respectful opinion, the preliminary objection has no substance as the brief itself is headed “APPELLANT’S BRIEF OF ARGUMENT” with the appellant’s name as the appellant and the respondent’s name as the respondent, to which the respondent reacted in his brief of argument, showing the respondent was not misled or prejudiced by what at best is a misnomer or error by the appellant’s brief stating that its learned senior counsel is the respondent’s counsel, which, in my considered opinion, is a pardonable mistake. See Agbule v. Warri Refinery and Petrochemical Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318 at 341 per the Lead judgment of Ogunbiyi, JSC., thus –

“The wrong use of the name did not overreach or put the respondent to any form of disdain … The use of the name in my view, is at best a misnomer and which did not occasion any negative effect. This court under its inherent powers has the jurisdiction to correct such inconsequential error which does not require any formal application to be made.”

See also Afolabi and Ors. v. Adekunle and Anr. (1983) 8 S.C. 98, Teriba v. Adeyemo (2010) 13 NWLR (Pt. 2011) 242 at 264, Kalu v. Odili (1992) 6 SCNJ 76, and Registered Trustees of Airline Operators of Nigeria (supra).

The objection is accordingly overruled. In the result, the words “RESPONDENT’S COUNSEL” appearing on the front cover of the appellant’s brief is hereby corrected to read “APPELLANT’S COUNSEL” -See again Agbule (supra) at pages 341- 342 citing in support the cases of Olu of Warri Esi v. Shell B.P. Petroleum Dev. Coy, Of Nigeria Ltd. (1958) 3 FSC 94 and Maersk Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt.778) 317.

The appellant’s brief of argument formulated these issues for determination;

“1. Whether the trial Court was right when it took judicial notice of publications in the news and electronic media which were not evidence before him and relied on some to reach a finding that the Appellant posed a threat to the Respondent’s fundamental right under section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria? (Ground One of the Notice of Appeal)