Guardian Law ReportIn the Federal High Court,Holden at Lagos, Nigeria,On Friday, September 16, 2011, Before the Honourable Justice O.E. Abang, JudgeSuit No. FHC/L/CS/653/2011BetweenMr. Jonathan Odutola (applicant/judgment creditor)andCorporal Edmund Ogwu,Commissioner Of Police, Lagos State Police Command,Inspector Gen. of Police,Mr. A.O. Ahmed,Lagos State Traffic Management Authority,The Commissioner, Lagos State Ministry of Transport (respondents/judgment debtors).HOWEVER, where a vehicle breaks down on the road abruptly may be on account of electrical or mechanical fault, LASTMA should act with a human face and not to compound the problem for the road-user by towing the vehicle against his wish and consent and making him pay illegal fine as in this case.My Lords, it is my view that by arresting and impounding the applicant's vehicle, towing the said vehicle against his wish and forcing him to pay illegal fine on account of alleged traffic offence, the 4th - 6th respondents violently usurped judicial functions of a court of law as enshrined in Section 6/1&2 of 1999 Constitution and also a violation of the applicant's fundamental rights to fair-hearing, freedom of movement, the right to own his property and also an infringement of his liberty.In the case of AGBAI V. OKEGUE (1991) NWLR P. 391 at pg 410 Supreme Court held: 'In this country, our Constitution, both 1963 and today, has given sufficient protection under the Rule of Law and that no person not even government can take the law into his hands. If any citizen usurps the function of the court, the court will declare such action unconstitutional'.Assuming without deciding that the applicant committed a traffic offence, LASTMA ought to have arraigned him before Special Offences Court or the nearest court. Moreso LASTMA's law has conferred power on them to prosecute an alleged traffic offender. See Section 11 (b) of law where their complaint against the applicant would have been ventilated in public in an atmosphere of fairness and impartiality before the law.It is only when the applicant is convicted by a court of competent jurisdiction that the issue of fine or any form of punishment would have arisen and in this case, LASTMA officials on their own with force towed and impounded the applicant's vehicle and without his consent and in a most crude and primitive manner, ordered the applicant to pay fine. Put differently, the question would be, who gave LASTMA the authority to fix the amount as fine.Lagos State House of Assembly cannot in exercise of its power to make laws for Lagos State confer judicial powers on LASTMA to fix arbitrary fine.This is not proper and is most undemocratic. It is not only a violation of the applicant's sacred fundamental right but an act, which signals a head-on romance with anarchy and state of despondency.Assuming the applicant resisted the uncivilised way LASTMA behaved, there would have been chaos and breach of public peace. That is the reason why it is not lawful for LASTMA to take laws into its hands. It can only regulate traffic but has no right to impose fine on alleged traffic offender. See. Chedi vs Attorney General of Federation (2006) 13 NWLR PT. 997 P. 308 AT 330-331.Learned counsel for the 4th - 6th respondents claimed that the action of LASTMA has the statutory backing of LASTMA's Law 2004, made by Lagos State House of Assembly pursuant to 4(3, 6, 7, 8) of 1999 Constitution.However, Lagos State House of Assembly cannot in exercise of its power to make laws for good governance of the state, make laws that will negate the much-cherished principle of separation of power. Lagos State House of Assembly cannot take laws to confer judicial powers on the LASTMA. Judicial power of the constitution I have said in this judgment is only vested in a Court of law and not on LASTMA, I so hold.Therefore, Section 12 subsection 2B 3 5(a) & (b) 13(3), confers judicial powers on LASTMA to impound the vehicle of the applicant without consent and forcing him to pay illegal fine, thereby assuming judicial functions are hereby declared unlawful, unconstitutional, null and void and to no effect whatsoever. I so hold.It is also proper to make this clarification that the order of nullification of those sections is a consequential order to give effect to Claim A endorsed on the applicant's substantive motion herein. SeeAkinbobola vs. Plission Fisko (Nig.) LTD. (1991) 1 NWLR PT. 167 P. 271Akapo vs Hakeem Habeeb (1992) 6 NWLR PT. 247 P.304My Lords, assuming without deciding that LASTMA has the right to impound a vehicle involved in a traffic offence and/or order fine to be paid thereof, the applicant's vehicle did not in any way obstruct free flow of traffic I so hold.There is unchallenged evidence before me that the vehicle was parked at the hard shoulder. I have scrutinised LASTMA's Law; I have not come across or seen any provision to the effect that hard shoulder on the 3rd Mainland Bridge is meant for security officials and Lagos State Ambulance service only. A vehicle that breaks down on account of mechanical fault can also be parked there. It is also meant to take care of emergency situation. I hold the view that a vehicle parked at hard shoulder can never obstruct traffic since it is clearly not part of the lanes where traffic flows. The applicant's exhibit B-B2 show that the vehicle was parked at hard shoulder and did not obstruct traffic at all.The good intention of Lagos State House of Assembly in establishing LASTMA was basically to regulate in Lagos State Roads and not to be used as income or revenue yielding organ of government.Towing of vehicle on the road is only meant for those who intentionally park them illegally on the road and should never extend to where a vehicle for circumstances beyond the control of the owner genuinely develops fault and breaks down. In such a situation, LASTMA should assist the owner in removing the vehicle and not to add to the owner's problem by towing the vehicle to their office and demanding payment of illegal fine.The first claim of the applicant succeeds and it is accordingly granted as prayed. It is hereby declared that the arrest, seizure and continuous detention of applicant's pick-up van with registration number BE 736 KSF by the respondents is illegal, unlawful and unconstitutional and it is a gross violation of the applicant's guaranteed constitutional right to fair hearing and freedom of movement, right to own and possess his vehicle.It is also ordered that the respondents especially 4th, 5th & 6th respondents shall unconditionally release the applicant's vehicle immediately. The applicant is hereby directed to endorse form 48 on the enrolment of judgment order.As regard claim for N10,000,000.00 for general and special damages in view of unlawful detention of the applicant's vehicle, there is unchallenged evidence before me that the applicant was tortured, beaten up and thoroughly humiliated by the respondents on March 18, 2011, his reputation lowered in the estimation of right-thinking members of public especially at the busy Third Mainland Bridge including the two technicians he requested to come and fix his car in contumelious disregard of every principle that actuates the conduct of civilised men and, in fact, his vehicle towed against his wish to the 4th respondent's premises.There is also unchallenged evidence before me that the applicant's movement on the fateful day was restricted between Third Mainland Bridge and LASTMA's office at Sura area of Lagos Island. That he suffered physical and emotional pains and trauma on account of the reckless action of the respondents and agents of Lagos State government. It is my view that the action of the respondents especially the 1st, 4th and 5th respondents was arbitrary, outrageous and utterly oppressive. There is also unchallenged on record that the activities of the applicant were disrupted and he suffered damage. The action of the respondents cannot stand in a normal civilised society.By Section 34(1) and 53(1) of 1999 Constitution, the applicant is entitled to have respect for the dignity of his person and shall not be subjected to torture or any form of inhuman or degrading treatment.The applicant is also entitled to his personal liberty and shall not be deprived of such liberty except in cases as provided for under Section 35(1) 1-f, 2-7 of 1999 Constitution. It is noteworthy to state that the action of the LASTMA and the Police do not fall within any of the exceptions provided for under Section 35(1) a-f, 2-7 of 1999 Constitution where the liberty of the applicant can constitutionally be taken away.There is unchallenged evidence that the applicant's vehicle has been impounded since March 18, 2011, without his consent. This unconstitutional as it violates Section 44 of 1999 Constitution, which provides that a person's movable property shall not be taken possession of compulsorily except in accordance with the provisions of the constitution.In the case of Oshiere LTD. vs. Tripohin Motor (1991) 5 NWLR PT. 503 P. 1 at 21-22 it was held: 'The gravemen of a tort of detinue is the wrongful retention of the chattel. Mere retention is enough to ground a cause of action in detinue and a successful plaintiff will be entitled to damages'.In the case of Odiba V. Azege (1998) 9 MWLR PT. 556 P. 370 AT P. 382, the Supreme Court held that where agents of government deliberately go out to cause wrongful injury to the other person, it must be prepared to accept the legal consequences of their action and that exemplary damages can be awarded where the action of the agents of government were reckless, vindictive high-handed and utterly oppressive as it depict gross abuse of official power on the part of the public officer.In Odiba vs Azege, it was held that where agents of government like in this case of LASTMA exhibit a high level of executive lawlessness and rascality in the discharge of their official duties, the applicant is entitled to general damages in this matter.This is so because general damages are damages, which the law implies in every breach and in every violation of a legal right. It is the loss, which flows naturally from the respondents' act and its quantum need not be pleaded or proved as it is generally presumed by law.It is my view that the manner in which general damages is quantified is by relying on what would be in the opinion and the judgment of a reasonable man in the circumstances of the case.Thus, where the applicant deposed in his affidavit in support of the motion that he suffered some damages without being in a position to calculate its value specifically, the damage would be presumed to have resulted naturally from the action of the respondents such is qualified as general damages - See CBN v. AHMED (2004) 15 NWLR PT. 877 P. 591.As regard special damages though none of the respondents challenged the fact that the applicant spends N50,000.00 daily in moving his goods and services from one place to the other, the applicant did not provide particulars of those expenses. The applicant cannot claim he spent N50,000.00 on transportation daily without particulars. The applicant must show how he arrived at his figure. Therefore, this head of claims fails and it is accordingly dismissed.As regards general damages, I have decided that he is entitled to same.Apart from the claim of the special damages, which is dismissed, the applicant's suit succeeds.The 1st respondent is hereby ordered within seven days to apologise publicly and in writing to the applicant. Form 48 should be endorsed on the order to be served on the 1st respondent. N500,000.00 is hereby awarded in favour of the applicant payable by the 1st, 2nd, 3rd, 4th, 5th and 6th respondents jointly and/or severally. I so hold. I also award N20,000.00 as cost in favour of the applicant payable by the 1st, 2nd, 3rd, 4th, 5th and 6th respondents jointly and/or severally, I so hold.'Concluded.
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