WHETHER AN ORDER BY A STATE GOVERNOR BANNING THE USE OF MOTORCYCLES CONSTITUTES A BREACH OF RIGHT TO FREEDOM OF MOVEMENT

MR. CHARLES APILOKO JAMES v. THE GOVERNOR OF EDO STATE & ORS (2021)   LPELR-54203(CA)

JUDGMENT DATE:          18TH MAY, 2021

JUSTICES:                         OYEBISI FOLAYEMI OMOLEYE, JCA

                                            BIOBELE ABRAHAM GEORGEWILL, JCA

                                            FREDERICK OZIAKPONO OHO, JCA

PRACTICE AREA:          Constitutional Law – Right to Freedom of Movement

FACTS:

The 1st Respondent, the Governor of Edo State verbally announced a ban on the use of motorcycles from plying the roads in certain roads in select Local Government Areas in the State and that motorcycles found in the named areas would be confiscated and destroyed by the agents of the Edo State Police, Edo State Security Services, Nigerian Security and Civil Defence Corps (Edo State), and Nigerian Army (4 Mechanised Brigade Benin City). On 17/6/2013, the 1st Appellant was on his way to his place of work on his duly licensed motorcycle when he was accosted by some security officers and was forced by them to stop and his motorcycle was almost seized on the ground that he was in violation of the verbal ban made by the 1st Respondent. He was ordered to ride his motorcycle to the Police Station, but before the Policeman could climb onto his motorcycle, he zoomed off and took another street to return to his house.

The 2nd Appellant is a marketer who employs the services of duly licensed commercial motorcycles to enable him transport his products or wares to his clients. However, on 20/6/2013 while on board a commercial motorcycle to convey him to his clients, he was stopped by some security officers who seized the said motorcycle on the ground that they were in violation of the verbal ban by the 1st Respondent, which gave them the authority to confiscate and destroy any motorcycle found plying the roads in Benin City and its environs.

The Appellants thereafter instituted an action at the Federal High Court Benin Judicial Division claiming among other things, a declaration that the 1st Respondent’s action of verbally announcing a ban on the use of motorcycles from plying the roads was ultra vires the powers of the said 1st Respondent and constituted a gross violation of the Applicants’ right to fair hearing and freedom of movement and was therefore unconstitutional and illegal and a declaration that the action of the agents of the Edo State Government enforcing the 1st Respondent’s verbal ban on the use of motorcycles with the threat to confiscate and destroy the 1st Applicant’s motorcycle constituted a gross violation of the Applicants’ right to fair hearing and freedom of movement.

In its considered ruling, the trial Court entered judgment against the Appellants and consequently dismissed their claims against the Respondents for lacking in merit. Dissatisfied, the Appellants appealed.

ISSUE(S) FOR DETERMINATION:

The appeal was determined on the lone issue:

“Whether the Court below properly evaluated the evidence placed before it and arrived at correct findings and decisions in its judgment appealed against?”

COUNSEL SUBMISSIONS

It was contended by the Appellant that the verbal order or directive made by the 1st Respondent banning the use of all motorcycles in the Benin metropolis and its environs with the penalty of confiscation and destruction of any offending motorcycle is not supported by any known law made by the Edo State House of Assembly and that in law, such a verbal order or directive does not transform into a law just because it was issued by the Governor. The Appellant submitted that the said verbal order or directive does not have the force of law to prescribe an offence and/or penalty for those who are in breach of it and that the action of the Respondents against the Appellants does not fall within the legally justifiable parameters as provided in Section 41(2) of the Constitution of Nigeria, 1999 (as amended) and was therefore, unconstitutional.

On the other hand, the Respondents’ counsel submitted that in law, the 1st Respondent has the power to make the verbal order made by him and that once the verbal order was issued by the 1st Respondent it had the force of law and the Appellants were duty bound to obey it. It was further submitted that the 1st Appellant who has committed several offences with his motorcycle but is still in custody of his motorcycle till date after his escape from lawful arrest had approached the trial Court with stained hands and that the 2nd Appellant who admitted that he does not own the motorcycle that was confiscated by the Respondents did not suffer any loss from the events and therefore has no rights that were purportedly violated as alleged.

DECISION/HELD

In the final analysis, the appeal succeeded in part and it was accordingly allowed in part. The judgment of the trial Court was set aside and judgment was entered partly in favor of the 1st Appellant. It was declared that the 1st Respondent’s action of verbally announcing a ban on the use of motorcycles from plying the roads was ultra vires the powers of the said 1st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever.

RATIOS:

CONSTITUTIONAL LAW- RIGHT TO FREEDOM OF MOVEMENT: Whether the right to freedom of movement can only be curtailed by a verbal order or a written executive order made by a Governor issued pursuant to or by virtue of an existing law which is justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended) –

“By Section 41 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided thus… Now, looking at the succinct provisions of Section 41 (1) and (2) of the Constitution of Nigeria, 1999 (as amended), what would be reasonably justified or justifiable in my view is not a verbal order or even at best a written executive order made by a Governor but a written law made by the Legislature. Thus, neither a verbal order nor even a written executive order made by a Governor can on its own be justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), unless such a verbal order or written executive order was made or issued under or pursuant to or by virtue of an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). In other words, neither a ‘Verbal Order’ nor ‘Written Executive Order’ of a Governor, or the Executive Arm of Government at whatever level of governance in Nigeria for that matter, restricting movement through the banning of the use of motorcycle for movement can on its own be justified or justifiable by reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), if it was not made or issued pursuant to an existing law which is justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). Thus, once a verbal order or even a written executive order is not made under or pursuant to an existing law, then the issue of its validity in reference to Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), does not even arise. It is ipso facto and ab initio invalid and if properly challenged must ex – debito justitae be set aside. It is only when a verbal order or even a written executive order restricting movement is made pursuant to or under and by virtue of an existing law that the issue of its validity can be determined first with reference to the existing law, whose own validity must in turn be determined under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended). This is such that, even if a verbal order or written executive order restricting movement is made under and/or pursuant to an existing law, it is not yet eureka if the existing law is itself challenged as not being reasonably justified or justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), and therefore, unless and until it is shown that the written law under which an executive written order or a verbal order restricting movement was made by the Executive is itself justified or justifiable under Section 41 (2) of the Constitution of Nigeria, 1999 (as amended), any such verbal order or written executive order made by a Governor, the 1st Respondent herein, and restricting the right to movement is invalid and liable to be set aside if so properly challenged in a Court of law… Thus, any purported breach or infringement of such an invalid verbal order or written executive order restricting movement cannot, in law, form the valid basis for any criminal trial or punishment by any agencies of Government. So it is, in my finding, with the verbal order of the 1st Respondent, the Governor of Edo State restricting movement by banning the use of motorcycles, when he made the said verbal order contrary to the provisions of Section 41 (1) of the Constitution of Nigeria, 1999 (as amended) and not under any written law that is justifiable under the provisions of Section 41 (2) of the Constitution of Nigeria, 1999 (as amended) … See also Aiko V. Fagbemi (1961) All NLR 400; Capt. Asake V. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408; Udoku V. Onugha (1963) 2 All NLR 107; Prince Joshua Paulson V. The State (2011) LPELR – 4875 (CA); FRN V. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113; Major Adebayo V. Nigerian Army & Anor (2012) LPELR – 7902 (CA); Hon Hembe V. FRN (2014 LPELR – 22705 (CA).” Per GEORGEWILL, J.C.A.