OKADA RIDERS FILE APPEAL AGAINST THE DECISION OF THE HIGH COURT OF LAGOS STATE

[bamidele aturu & Co.]

 Dear Friends,

Compliments of the season!

Find hereunder posted the appeal we lodged on behalf of the Incorporated Trustees of All Nigerian Autobike Commercial Owners and Workers Association. The appeal was filed yesterday.

Thank you and God bless

Bamidele Aturu Esq

IN THE COURT OF APPEAL

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: ID/713M/2012

APPEAL NO: CA/L/..........

BETWEEN:

1.   THE INCORPORATED TRUSTEES OF ALL

NIGERIANS AUTOBIKE COMMERCIAL OWNERS AND

WORKERS ASSOCIATION

2.   MR .YUSUF HARUNA OLADIMEJI

3.   MR. MORDECAI SAMUEL                                    APPELLANTS

4.   MR. AREMU SIMEON

5.   MR. EJIOFOR GODWIN

AND

1.   LAGOS STATE GOVERNMENT

2.   LAGOS STATE HOUSE OF ASSEMBLY             RESPONDENTS

3.   ATTORNEY GENERAL OF LAGOS STATE

NOTICE OF APPEAL

TAKE NOTICE that the Appellants being dissatisfied with the decision of the High Court of Lagos State, Ikeja Judicial Division, as contained in the Judgment of Honourable Justice A.O. Opesanwo (Mrs) dated the 13^th day of December, 2012 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.

AND the Appellants state that the names and addresses of persons directly affected by the appeal are those set out in paragraph 5.

2.  PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:

      The whole decision.

3.  GROUNDS OF APPEAL

     Ground 1

Error of law

(1). The learned trial judge erred in law when she held at page 8 of the Judgment thus:

‘I have neither been provided with nor directed to any instrument in which the National Assembly, in exercise of its powers under the 1999 Constitution, designated any road in Nigeria a trunk road, which is the condition for reaching the conclusion that that road is a Federal trunk road. I have likewise, looked through various documents and made enquiries all in a bid to satisfy myself on the existence or otherwise of any such class of road in the Federation. Alas, my efforts were all negative. In the absence of proof that any such action has been taken by the National Assembly, it will be legally unsustainable for me to conclude that any road, least not being the roads from which the Claimants Motorcycles are prohibited and listed in Schedule II of the Lagos State Road Traffic Law 2012, are Federal trunk roads. I hold that these are not Federal trunk roads.’

Particulars of Error

1. Section 28 of the Federal Highways Act, cap F13, Laws of the Federation of Nigeria, 2004 makes it clear that federal highways are federal trunk roads contrary to the decision of the learned trial judge.
2. The learned trial judge ought to have held that the various Federal Highways (Declaration) Orders which designate certain roads as trunk roads are instruments or acts of the National Assembly having been made pursuant to an existing law, the Federal Highways Act, cap F13, Laws of the Federation of Nigeria, 2004 which predates the National Assembly.
3. The enquiries made by the learned trial judge outside the ambit or parameters of the Federal Highways Act, cap F13, Laws of the Federation of Nigeria, 2004 were not necessary having regard to the decision of the Supreme Court in the case of Joseph v State (2011) 16 NWLR (Pt. 1273) 226 to the effect that courts can take judicial notice of federal trunk roads.
4. The decision of the learned trial judge that no road is a Federal trunk road is in fundamental conflict with several decisions of the appellate court.
5. The roads listed in Schedule II to the Lagos State Road Traffic Law, 2012 are listed as trunk roads in the Federal Highways (Declaration) Orders. The said roads were pointed out to the learned trial judge by the Appellants, but she failed to give effect to their designation as such.

Ground 2

Error of law

(2). The Learned trial judge erred in law when she held at page 13 of the Judgment as follows:

‘There is no suggestion from the content of Schedule II of the 2012 Lagos State Road Traffic Law that the Defendants and in particular the 2^nd Defendant are using the legislative powers of the State legislature as a cloak to encroach on the area of Traffic on Federal Trunk Roads or Federal Highways reserved for the Federal legislature and the Minister respectively. The offence which the Claimants feel aggrieved about was created/provided in section 3(1) of the Lagos State Road Traffic Law and anyone who runs foul of it may be punished under Section 3(5). The true nature of Section 3(1) and which I gathered from the respective written address of the Defendants, is to have the movement of certain categories of Motor vehicles and/or Road users managed in order to reduce or limit the hazard to which they and/or members of the public will otherwise become exposed or indeed keep them out of harm’s way. I must emphasise that other modes or means of transportation and not just motorcycles are mentioned in the provision. I am of the firm view that the Lagos State Road Traffic Law is not a legislation in respect of traffic on Federal trunk roads or Federal Highways simply because it prohibits the use of these modes of transportation on the roads indicated therein. I am of the firm belief that it is an incidental provision in Road Traffic Administration enacted for the peace, order and good government of Lagos State. It is a law in respect of precautions taken to secure the wellness and well being of persons in Lagos State by protecting them from the dangers inherent in the unregulated use of these modes of transportation. The consequence of the foregoing is that I am unable to agree with the Claimants’ counsel to sustain his submission that Section 3(1) of the Lagos State Road Traffic Law is one the Defendants cannot validly enact  

Particulars of Error

1. The Lagos State Road Traffic Law, 2012 states emphatically in its Long Title and Section 1 that it is a law enacted to control or regulate traffic contrary to the decision of the learned trial judge.
2. The learned trial judge who held clearly and unequivocally that some of the roads listed in the Schedule of the Lagos State Road Traffic Law, 2012 are Federal Highways under the Federal Highways Act ought to have found that the Respondents cannot validly enact a law to control traffic on the Federal Highways.
3. The power to regulate traffic on Federal Highways is vested on the Minister by virtue of Section 1(2)(d) of the Federal Highways Act contrary to the decision of the learned trial judge.
4. There was no evidence before the learned trial judge that the Federal Government delegated the power to restrict any class of vehicle on the Federal Highway or to generally ensure uninterrupted flow of vehicular and pedestrian traffic on the Respondents as required by the Federal Highways Act.
5. The Lagos State Road Traffic Law, 2012 is in conflict with the National Road Traffic Regulations, 2004, cap F.19, Laws of the Federation of Nigeria, 2004 which covers the field in respect of traffic control on Federal Highways.
6. The 2^nd Respondent encroached on the exclusive legislative domain of the National Assembly by passing the Lagos State Road Traffic Law, 2012 to have effect on Federal Trunk roads or Federal Highways in violation of Section 4(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Item 63 of Part 1 to the Second Schedule to the Constitution. 

Ground 3

Error of law

(3). The learned trial judge erred in law when she affirmed the validity of Section 3(1) of the Lagos State Road Traffic Law, 2012 on the ground that ‘the Constitution of the Federal Republic of Nigeria recognises that the Lagos State House of Assembly has powers to make laws for the peace, order and good government of Lagos State’

Particulars of Error

a.   The issue before her was not whether Lagos State House of Assembly has powers to make laws for the peace, order and good government of Lagos State, but whether it has power to make a traffic law in respect of Federal Trunk Roads or Federal Highways.

b.   The learned trial judge ought to have found that regulation of traffic on Federal Trunk roads or Federal Highways is outside the authorised field of legislation for the Lagos State House of Assembly.

Ground 4

Error of law

(4). The learned trial judge erred in law when she held at page 14 of the Judgment as follows:

‘The traffic law meanwhile prohibits an action which is, evidently, ancillary to movement. In other words, the objective of the provision is not the movement of persons but the tool ancillary to the movement. There is certainly nothing contained in Section 41 of the Constitution which affirms or suggests that the means or mode of movement is either expressly or implicitly recognised or included in the provision. Citizenship is exclusive of inanimate objects and this even when that objects aids movement. The only consideration that can be given to the tool or object of movement, in the context of the provision of Section 41 of the Constitution is where the tool/object is indispensable, not merely convenient, for movement to be achieved by a citizen. In that case, movement is rendered impossible without the tool…I now hold that the complaint falls outside the constitutional ambit of Section 41’

Particulars of Error

a.   There was evidence before the learned trial judge that given the economic situation of the Appellants and the exorbitant transportation fares in Lagos State, for them the right to movement is illusory or not capable of effective enjoyment without the use of their motorcycles.

b.   The Appellants did not ask the learned trial judge to find that inanimate objects have right to movement under the Constitution but that they cannot exercise that right if their only means of effective transportation is unlawfully prohibited.

Ground 5

Error of law

(5). The learned trial judge erred in law in holding that only persons who live together in a common location can validly complain that their right under section 42 of the Constitution was breached and that financial status does not qualify for the invocation of section 42 of the Constitution

Particulars of Error

The decision of the learned trial judge is unduly restrictive in the light of decisions of appellate courts on the scope of section 42 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. 

Ground 6

Error of law

(6). The learned trial judge erred in law when she held at page 13 of the Judgment as follows:

‘It is important to note that not every right which has the protection of the law and is justiciable is a fundamental right. Except a right is specifically provided for in Chapter IV of the Constitution, no declaration can be made by the court in the name of Fundamental Right. Serious as the right infringed upon may be the court cannot raise its status to be that of a fundamental right and so an action which is not founded on Chapter 4, however well litigated, cannot secure a decision in favour of an Applicant relying on the said provisions. That is not to say that the allegation or wrong cannot be sustained under other heads of claim or simply as a civil right but not a fundamental right’

Particulars of Error

a.   The court ought to have found that where the provision of a law such as Section 3(1) of the Lagos State Road Traffic Law, 2012 manifestly violates any provision of Chapter 2 of the Constitution it ought to nullify the offending provision.

b.   The court failed to consider the effect of Article 22 of the African Charter on Human and Peoples’ Rights which is justiciable in Nigeria before dismissing reliefs 6 and 7 of the Appellants which are also founded on some sections of Chapter 2 of the Constitution.

c.    The learned trial judge failed to consider the effect of section 13 of the Constitution of the Federal Republic of Nigeria, 1999 as amended before dismissing the claims of the Appellants. 

 

Ground 7

Error of law

(7). The learned trial judge erred in law in not granting the relief of the Appellants that the incessant seizures or forcible possession of their motorcycles by the Respondents was a violation of the right not to have their moveable property taken possession of compulsorily guaranteed by section 44 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and in failing to restrain the Respondents from further forcible seizures or possession of the motorcycles of the Appellants.

Particulars of Error

a.   The Respondents did not deny that the motorcycles of the Appellants were compulsorily seized as alleged by the Appellants in their Originating Summons.

b.   There was no evidence that the forcible seizures of the motorcycles of the Appellants were consequent upon any civil process or conviction for an offence.   

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL

         (i). AN ORDER allowing the Appeal.

         (ii). AN ORDER granting all the reliefs of the Appellants.

5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:

NAMES                                                                                ADDRESSES

1.   THE INCORPORATED TRUSTEES OF ALL

NIGERIANS AUTOBIKE COMMERCIAL OWNERS AND

WORKERS ASSOCIATION

2.   MR .YUSUF HARUNA OLADIMEJI

3.   MR. MORDECAI SAMUEL 

4.   MR. AREMU SIMEON

5.   MR. EJIOFOR GODWIN                                c/o Their Solicitors

                                                           Bamidele Aturu & Co

                                         29, Olufeso Street,

Off Lagos-Abeokuta Expressway

By ASCON Filling Station

Opposite Millenium Secondary School

Cement Bus Stop

Lagos.

1.   LAGOS STATE GOVERNMENT                     c/o Attorney General, Alausa

2.   LAGOS STATE HOUSE OF ASSEMBLY    House of Assembly Complex, Alausa

3.   ATTORNEY GENERAL OF LAGOS STATE  Attorney General’s Chambers, Alausa

 

 

 

DATED this  27^th day of December, 2012.

 

Bamidele Aturu Esq

Bamidele Aturu & Co

Appellants’ Solicitors/Counsel

29, Olufeso Street,

Off Lagos-Abeokuta Expressway

By ASCON Filling Station

Opposite Millennium Secondary School

Cement Bus Stop

Lagos.

 

FOR SERVICE ON:

1.   Lagos State Government

c/o The Attorney General of Lagos State

Attorney General’s Chambers

Alausa, Ikeja.

 

2.   Lagos State House of Assembly

Lagos State House of Assembly Complex

Alausa, Ikeja.

 

3.   Attorney General of Lagos State

Attorney General’s Chambers

Alausa, Ikeja.

 

 

 

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BAMIDELE ATURU & CO.
24, MBONU OJIKE STREET, OFF AYINDE GIWA STREET,
OFF ALHAJI MASHA ROAD, SURULERE,
LAGOS STATE. NIGERIA. 

TEL.NO : +234-1-8043418, +234-8023128967,+234-8055999888,+234-8033375796. 
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