Whether the Federal Road Safety Commission Is Empowered to Operate on any Other Road that Is not a Federal Trunk Road

CASE TITLE:       FRSC v. EHIKAAM (2023) LPELR-60749(CA)

JUDGMENT DATE:      17TH JULY, 2023

JUSTICES:                   AMINA AUDI WAMBAI, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

ABUBAKAR MAHMUD TALBA, JCA

DIVISION: ASABA

PRACTICE AREA:           GOVERNMENT AGENCY

FACTS:

This is an appeal against the decision of the Federal High Court, Warri, Delta State, delivered by Emeka Nwite, J.

The Respondent commenced an action against the Appellant, seeking several declarations and orders related to the jurisdiction and powers of the Defendant (Federal Road Safety Corps) regarding vehicular traffic on State and Local Government roads in Nigeria.

The Respondent sought declarations asserting that Defendant lacked the authority to exercise jurisdiction over traffic matters on non-federal trunk roads and that certain definitions in traffic regulations did not extend to State and Local Government roads. Additionally, the Respondent requested an injunction to prevent the defendant from further harassing, arresting, or prosecuting motorists on such roads.

The trial Court found in favour of the respondent. Dissatisfied, the appellant appealed to the Court of Appeal.

ISSUES:

The issues for determination were:

1. Did the trial Court have jurisdiction to entertain the suit in the light of the failure of the Respondent’s counsel to sign Originating Summons?

2. Did the National Assembly have legislative competence in enacting the Federal Road Safety Commission (Establishment) Act, 2007 to empower the Appellant to operate on all public roads in Nigeria?

3. Was the learned trial Court right in awarding damages against the Appellant?

COUNSEL SUBMISSIONS:

The Appellant’s counsel argued that the Respondent’s Originating Summons lacked a proper signature as required by the Federal High Court (Civil Procedure) Rules. It was claimed that the absence of a valid signature rendered the document void and any proceeding conducted on it null. In response, the Respondent’s counsel contended that the Originating Summons was valid as long as the name of the counsel and the NBA stamp appeared on the document, regardless of the specific spot for the signature.

Regarding the legislative powers of the National Assembly, the Appellant’s counsel argued that the Appellant was not limited to managing and regulating traffic on Federal roads only. It was asserted that the National Assembly had the authority to make laws concerning public safety, public order, and the security and welfare of the people, thereby extending the Appellant’s jurisdiction beyond Federal trunk roads. Conversely, the Respondent argued that the National Assembly was explicitly authorized to make laws solely concerning Federal Trunk Roads, according to Item 63 of Part I of the Second Schedule. Extending the jurisdiction of the Federal Road Safety Corps (FRSC) to non-Federal roads, the Respondent contended, would be ultra vires.

The Appellant challenged the trial court’s decision to award N200,000 in damages to the Respondent, claiming it lacked sufficient justification. It was believed that the Respondent failed to demonstrate a gross violation of constitutional mandates or infringement on fundamental rights, rendering the awarded damages unreasonable. However, the Respondent argued that the damages awarded were justified, citing the appellant’s gross unconstitutional actions and infringement on the rights of a Nigerian citizen.

In conclusion, the Appellant urged the court to allow the appeal, while the Respondent urged the court to dismiss the appeal and uphold the trial court’s decision.

DECISION/HELD:

Having resolved all issues against the appellant, the appeal was dismissed.

RATIO:

GOVERNMENT AGENCY – FEDERAL ROAD SAFETY COMMISSION: Whether the National Assembly can empower the Federal Road Safety Commission to operate on State road/any road that is not a federal trunk road; effect of any law purporting to do the same

“The item ‘Traffic on Federal Road” is provided for under Item 63 2nd Schedule Part I in the Exclusive legislative list. Study of part I of the 2nd Schedule, Item 63 i.e. “Traffic on Federal Trunk roads” gave rise to the promulgation of Federal Road Safety Commission (Establishment) Act, 2007 by the National Assembly for the maintenance and security of public safety and order.

The grouse in this appeal is; whether the provisions of the FRSC Act in Section 30 therein in this respect is consistent with the provisions of the Constitution Federal Republic of Nigeria in Item 63 under the Exclusive list.

Counsel for the Appellant argued that Section 15 and 30 of the FRSC Act empowers the Commission to control traffic on all public highways.

For ease of reference, I shall reproduce Section 15 of the FRSC Act as follows:

“The operation of the Corps shall cover all public highways.”

Section 30 is the interpretation Section of the FRSC Act, wherein Public Road was defined thus:

“Public Road” means Federal, State or any type of road used for passage by commuters.

A community reading of both sections is clear, Section 30 qualifies Section 15 of the FRSC ACT and restricts the public road definition to Federal, State, or any type of road used by commuters.

The provision of the Federal Highway Act, subsidiary legislation of the Federal Road Safety Commission (Establishment) Act, federal highway in Section 28 (1) (c) states;

“Federal trunk roads within the context of Item 63 Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999.”

Also, I take judicial notice of the provision of Section 1 of Federal Highways (Declaration) (No. 2) Order of 1st October 1974, which states that:

“The roads specified in the Schedule are hereby declared to be Federal Highways.”

Under the literal rule of interpretation of statute, words and phrases in enactments are to be given their ordinary, original or grammatical meanings even if it will create hardship, inconvenience or injustice to the parties in so far as it will not result in absurdity. See B.A.J (NIG) LTD. v. OGUNSEYE (2010) 4 NWLR (1184) 343, AMAECHI v. INEC (2007) 9 NWLR (PT. 1080) 504, UWAGBA v. FRN (2009) 15 NWLR (PT. 1163) 91, OWENA BANK v. STOCK EXCHANGE (1997) 7 SCNJ 160.

Also, it settled that legislations are interpreted holistically not subject to interpretation by fragments, in an effort to reach the intention of the legislature. See NPA PLC v. LOTUS PLASTICS LTD. (2005) 19 NWLR (PT. 959) 158 @ 182 & 199, BAKARE v. NRC (2007) 17 NWLR (PT. 1064) 606.

Hence, I am inclined to apply the literal interpretation rule to the combined reading of Section 4 (2) and Item 63 Part I of the 2nd Schedule of the Constitution, Section 15 of the FRSC Act and find that the operational jurisdiction of the Commission is limited to federal roads or federal trunk roads as specifically itemized in the Federal Highways (Declaration) (NO. 2) Order 1974.

In my humble view, the provisions of the FRSC Act, especially Section 30 which defines roads to include State roads, (which is the exclusive preserve of the State House of Assembly) and therefore are ultra vires the power of the National Assembly to legislate upon and as such unconstitutional. The source of the legislative competence of the National Assembly is the Constitution and in the circumstances of this case, the provision of Sections 15 and 30 of the FRSC Act cannot extend the scope of the legislative powers to include state roads.

Section 4 of the Constitution insists that each of the legislature, at the Federal and State levels, must confine itself to its sphere of legislation viz; the items on each of the list. This means, that neither the National Assembly nor the House of the Assembly of a State is at liberty to wander off into the legislative arena of the other, where each of them strays into the legislative field of the other any law or provision which is an off shoot of that legislative invasion, as it where, on the legislative items is unconstitutional, null and void and stands the risk of being so declared by the Court.’ See, page 123 of ”GUIDELINES TO INTERPRETATION OF NIGERIAN STATUES” BY OBANDE FESTUS OGBUINYA.

The National Assembly lacks the authority to empower the Commission to operate on State roads or any other road that is not a federal trunk road.

Where there is conflict between the provision of the Constitution and an enactment of the National Assembly, the Constitution must prevail and that other enactment shall be null and void to the extent of its inconsistency.

In A.G FED v A.G LAGOS STATE (2013) 16 NWLR (PT. 1380) 249 @ 329 per I. T MUHAMMAD, JSC defined inconsistency as:

“a situation where two or more laws, enactments and/or rules, are mutually repugnant or contradictory, contrary, one to the other so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other.” (Underlining mine)

In TANKO v. STATE (2009) LPELR-3136 (SC), it was held that;

“It cannot be denied that the CONSTITUTION (the GRUNDNORM) of this country, indeed, the Constitution of any country is supreme. It is by it (the Constitution) that the validity of any laws, rules or enactment for the governance of any part of the country will always be tested, It follows therefore, that all powers be the legislative, executive and judicial, must ultimately be traced or predicated on the Constitution for the determination of their validity. All these three powers that I have mentioned must and indeed, cannot be exercised inconsistently with any provisions of the Constitution. Where any of them is so exercised, it is invalid to the extent of such inconsistency. Furthermore, where the Constitution has enacted exhaustively on any situation, subject or conduct, anybody or authority that claims to legislate, in addition to what the Constitution had enacted must demonstrate, in clear and unambiguous terms, that it has deprived the legislative authority of the Constitution to so do.

I go further to say that where the Constitution has set out certain conditionalities for doing a thing, no legislation of the National Assembly (in the absence of clear amendment of the particular provision of the Constitution so stipulating the aforementioned conditionalities or of a State House of Assembly can alter those conditionalities in any way, directly or indirectly, unless the Constitution itself, as an attribute of its supremacy, so expressly authorized. Such is the eminent position of the power and authority which the Constitution enjoys.

The Constitution is very much supreme to all other laws of the land and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. See Section 1(1) of the (1999) Constitution. The basis of any government, under the Constitution, is primarily, to provide security and ensure the welfare of the people. Any social malaise, or act or behaviour of any person or body capable of threatening the well-being of the citizenry must be legislated against and in so doing, all the three arms of the government must ensure strict compliance with the provisions of the Constitution.”

Per ADEREMI, JSC (Pp. 18-19, paras. A-D)

Counsel for the Appellant had stated in his brief that the legislature, in promulgating the FRSC Act, 2007 is deemed to have intended to cover the field by granting very wide powers to the FRSC.

The “doctrine of covering the field” applies where there are inconsistencies in the construction of statutes. One of the ways in which the doctrine will apply is when either the National Assembly or the House of Assembly of a State makes a law on a subject-matter or item which the Constitution has adequately catered for thereby covering the field of that subject matter. In this situation, the law made by the legislature, will to the extent of the inconsistency, be declared inconsistent and rendered null and void. See A.G ABIA STATE v. A.G FEDERATION (2006) 16 NWLR (PT. 1005) 265 @ 371-372, INEC v. MUSA (2003) LPELR-24927 (SC).

In light of the foregoing analysis, I agree with the erudite analysis of the trial Court that, the National Assembly lacks the legislative competence to empower the Appellant to operate on state highways such as the Ajamimogha road, Warri, Delta State, which is not listed in the federal high way declaration order.” Per OBASEKI-ADEJUMO, J.C.A.

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