The Federal Road Safety Commission is a creation of statute, the Federal Road Safety Commission Act1 and in consequence derives all its powers from the Act, statutory instruments made thereunder and the general body of the Nigerian law. The general body of the law referred to here spans from the Constitution as the grundnorm and other relevant statutory provisions to the common law or case law.
The Commission’s salutary aims and objectives as outlined in the long title of the Act includes traffic management, the prevention and minimisation of accidents on the highways, clearing obstructions on any part of any highway, educating drivers, motorists and other members of the public generally on the proper use of the highways. Section 10 of the Act enburdens the Commission’s corps with functions relating to making highways safe for motorists and other road users; educating motorists and members of the public on the importance of discipline on the highways; preventing and minimising accidents on the highways; clearing obstruction on the highways etc.
In the bid to perform those functions and achieve those aims, the Commission is in constant interaction and interface with the motoring public. Some of the interactions involve the application of the provisions or contents of the law, which application sometimes seems to be done in manners that are questionable in the estimation of the enlightened segment of the citizenry. The question mark arises in the light of the firm and profuse disposition taken by the Constitution and the Nigerian law generally in guarding the rights and liberties of citizens and motorists. Several troublesome legal problems thus prop up, needing careful analysis for the production of solutions.
The burden of this inquiry is an examination of some of those challenges. We shall be seeing, for instance, whether or not the legal regime inaugurated in the FRSC Act in any way enables the officers of the Commission to stop a motorist and determine by themselves that the person is guilty of a traffic offence and to go ahead and impose punishment on him by way of a fine. Our thesis is that generally there is none save section 10(5)(b) which is the way it is by inadvertence and that it is clear error in interpretation or application of the Act that has given the impression that any such thing is permitted. We further contend that if any provision of the Act actually permits any such extra judicial trial then the provision is irredeemably null and void by reason of unconstitutionality. We shall examine the provisions that empower the Commission to require training and retraining of drivers but does not give a legal backing for effective implementation. The enforcement of citizens’ fundamental human rights is a matter of prime importance in the country, which all law enforcement agencies have to deal with in one way or the other. We shall also examine the concourse of effect between the enforcement of those rights and the issuance of pre-action notices. We shall also look at the situation where mobile policemen have made it impossible for the Commission to implement the provision that permits it to halt the widespread abuse of the use of sirens. Our approach is to take the issues seriatim and consider the relevant realities, practices or events (including the Commission’s practices and approach) against the background of extant legal principles.
A. Imposition (and Collection) of Fines or other Punishment on Motorists by the FRSC; Validity of a Notice of Offence Sheet
Section 10(4) of the Act criminalises certain behaviours. They include the obstruction of the highway, overspeeding, wrongful overtaking on the road, disobedience of traffic lights or signs, driving without valid papers or a valid driver’s licence. So also do sections 20 – 27. Appropriate punishments are prescribed at sections 20 – 27 and the Second Schedule to the Act. It often happens that when a motorist is seen by the officers or marshals of the Commission as having breached any of these provisions (i.e. as having committed any of those offences) he is given a notice of offence sheet indicating that he has committed that offence and indicating the fine which he should proceed to pay into the Commission’s bank account if he does not want to be prosecuted. His driver’s licence is impounded and would be released to him only after he has paid the fine and shown evidence of the payment in a manner acceptable to the Commission. In effect, the Commission’s officers make the decision that in the circumstances the person has actually committed the offence in question and should pay the appropriate fine as a punishment for the offence. In the eyes of a lawyer, such officials have wrongly merged in themselves the roles of several distinct persons. He has been the arrester, the prosecutor, the adjudicator and also the executor of the punishment.
Some persons may argue that in giving out the notice of offence sheet the official has not tried the alleged offender but has simply given him an option to be tried by the Court or to opt out of such a trial and just pay the fine and move on with his life. The Commission does not compel him to pay a fine; he only elects of his free volition to do so. It may further be argued that many an alleged offender would prefer (or in practice actually prefers) to pay the fine and move on with his life as it would be far more convenient, time and cost saving not only him but also the Commission (indeed to the country) than for him to be taken through a formal criminal trial. A critical thinker can further demand: Will the involvement of Courts of law (with their attendant delay etc) in the determination of such simple issues as whether or not a motorist’s brake lights are working not end up making the process and the system rather unwieldy and self defeating? If the noble aims outlined for the Commission in the Act are to be realisable is it not better to exclude the Courts or, better still, to retain the choice which the notice of information sheet affords an alleged offender? Should a motorist who is of full legal age of maturity in the law1 really not be able to take the simple decision on such minor issues and move on with his life?
For practical purposes, these arguments may appear eminent in plausibility and attractiveness. However, to the lawyers in this audience and for the general good of mankind the troublesome question is: Can a person opt out of his right to be tried for an offence by only a Court of competent jurisdiction in a manner that secures fair hearing? Does the present Nigerian legal regime allow it? Can, or should, the law set in a serious pursuit of the principles of liberty and freedom for all and general social good as it is,2 allow citizens to opt out of such fundamental rights which are of extreme necessity? In the final effect our query is: What is the purport of the notice of offence sheet when a corps member hands it over to a motorist with respect to an alleged offence and is that purport legitimate under the law? In authorising the issuance of a notice of offence sheet does section 10(4) expressly or necessarily empower or even envisage that a chance to opt out of trial by a proper Court would be given to an alleged offender? If it actually did, is it constitutionally valid and subsisting? Should it be?
No doubt, these are serious questions, the answers to which do not lie in an offhandish or peripheral consideration of the matters in issue. The first group of questions3 are strictly and wholly legal questions while the second4 may be termed socio-legal because it goes beyond the circumference of the law of the now (the law as is) to the concourse of law and other social dynamics.5 In examining the questions, we shall first seek to see whether the Act or any other law expressly allows any of the situations identified above. Even if there is such an empowerment, is it valid and subsisting in the Nigerian jurisprudence? For completeness of discourse and indeed convenience of analysis, we shall examine the socio-legal question together with the purely legal. Then we shall examine the way out of the identified legal problem or challenge since, in our humble view, the essence of identifying legal problems (and indeed any discourse of any legal problem) should be the finding of a solution.6
A calm reading of the Act shows that the question whether or not it permits the Commission to adjudicate on alleged crimes and impose punishments comes in two kinds of situations. One is where the Act is silent on the question and the other is where the Act empowers the Commission to take certain steps which, at least prima facie, could appear to have the character of punishment. The second situation has been occasioned by the couching of subsection 10(5)(b) and an erroneous interpretation and application of the part of s. 10(4) that empowers the issuance of a notice of offence sheet. Whilst the bulk of subsection 10(4), other provisions of subsection (5) other than 10(5)(b) and indeed all other crime creating provisions, empower corps members either to “arrest” alone or to “arrest and prosecute” offenders reasonably suspected of having committed any of the listed offences, subsection 10(5)(b) empowers them to “remove and detain … any vehicle which has been parked in a manner that causes an obstruction on a highway”.7 We shall be seeing that the couching of section 10(5)(b) was inadvertent and that section 10(4) does not actually create for an alleged offender a chance to opt out of proper trial.
Really, the general attitude of the Act is to empower the Commission to only arrest or arrest and prosecute suspected offenders. It does not empower the Commission to try offenders and administer punishment. The bulk of subsection 10(4) empowers the corps members to “arrest and prosecute offenders reasonably suspected of having committed any of the following offences and serve same with a court summons or notice of offence sheet”. Subsection 10(5)(a) empowers them to “arrest any person suspected of committing or having committed an offence under this Act” and subsection 10(5)(i) empowers them to “arrest and prosecute” an offender offering bribe to a corps member or attempting to corrupt a marshal on duty. Subsection 10(5)(c) empowers the Commission to endorse a driver’s licence with an indication of an offence that has been committed by the holder “after conviction”. All other subparagraphs except (5)(f) and (g) empower the Commission to take certain steps against any person who is “suspected” or “reasonably suspected” to have committed an offence or against any property with respect to which an offence is suspected to have been committed. Subparagraph (5)(f) empowers the towing away of a vehicle suspected to have been stolen and has been impounded under (5)(e) while (5)(g) enables the Commission to declare an offender as wanted when he fails to report to answer charges against him under the Act.
Clearly, these provisions do not permit a situation where the Commission or any of its officers or marshals to determine whether or not a motorist who may seem to have committed an offence has actually done so. Even where an offence has been undeniably committed, the provisions do not vest any competence in the Commission or its personnel to determine what punishment should be imposed or, worse still, to go ahead and execute the punishment such as by collecting any fine from any motorist. In the first place, the provisions that empower the taking of some steps against a person “suspected” or “reasonably suspected” of committing any offence are simply geared towards the prosecution and determination of the actual guilt or otherwise of the person in question.
Those provisions leave the issue at the point of suspicion only and the things they empower are not punishments. For instance, in empowering the seizure of the driver’s licence of any person “suspected” or “reasonably suspected” of committing an offence under the Act8 or the impoundment of any vehicle with respect to which an offence is “suspected” or “reasonably suspected” to have been committed9 the Act only intends to ensure that the person does not abscond from prosecution. Those measures are not the eventual punishments for the crimes in question should guilt eventually be established. The punishments for all offences created in the Act are prescribed in the Second Schedule to the Act. As a matter of fact, section 10(7) of the Act is the punishment section for the offences not covered by sections 20 – 27 10 and provides that any person who contravenes any of the provisions of subsection 10(4) or commits any offence under the Act shall be liable to penalty as specified in the relevant section or under the Second Schedule.
Secondly, even the other provisions which empower arrest and prosecution or only arrest do not vest in the Commission any power of adjudication and/or imposition of punishment by way of fines or anything else. A power to “arrest and prosecute" simply means what it states and no more. It is trite that when such clear words which are free of ambiguity are used in a statute, the words must be given their clear and literal meanings and nothing more may be added or removed from them by any Court, much less so anybody else. In every such situation, the lawmaker
“must be taken to have intended the meaning expressed in such clear and unambiguous language and the court will not be at liberty to go outside the very provision in an attempt to ascertain the intendment and purpose of the provision”.11
Of course, in the same way, a mere power to “arrest” conferred on a law enforcement agency or agent simply means the power to arrest and either investigate and prosecute the suspect (where such subsequent powers are vested in the arresting authority or person) or to simply arrest and then hand over to another person or authority empowered to do the investigation and/or prosecution. It is clear from subsection 10(5)(e) and (f) that with respect to some offences the Commission cannot go beyond arrest to investigation and prosecution. Though subsection 10(5)(e) empowers the impoundment in some circumstances of a vehicle suspected to have been stolen, (5)(f) only empowers the Commission to tow the vehicle away for the purpose of packing it in the Commission’s premises and then “promptly notify the police of the matter for further investigation”. Whether or not the power of arrest can flourish into that of investigation and/or prosecution, it certainly, without more, does not include the power of adjudication in any way or manner.
In consequence then, all powers of “arrest” or “arrest and prosecution” vested in any law enforcement agency stops at only arrest or arrest and prosecution as the case may be.12 This is clearly in tandem with, and deference to, the Constitutional provision that trial for any offence, however slight or grave a crime, can only be done by not just a Court or tribunal (i.e. a Court like formal tribunal) but one seised of competent jurisdiction. This is the combined effect of section 36(1) and (4) of the 1999 Constitution. Subsection (4) stipulates that whenever a person is charged with a criminal offence he shall be entitled to a fair hearing in public within a reasonable time by a Court or tribunal. Free of all ambiguities as it is, the provision is not open to any interpretation capable of admitting extra judicial trial by anyone however eminently knowledgeable or experienced in the law the assumed adjudicator may be. No, not even a disciplinary panel charged with powers of discipline over an affected person or acknowledged wrongdoer. We dare say that it should be particularly so with respect to non-lawyers and persons completely uninformed in the law as the Commission’s corps members obviously mostly (if not all) are.
These views enjoy the august company of the apex Courts of the land which have been profuse and firm in elaborating such views. In Institute of Health, ABU HMB v. Mrs Jummai Anyip13 the Supreme Court restated the principle to the effect that once a person is accused of a criminal offence he can only be tried in a Court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair trial. The Court of Appeal in Peter O. Yissa v. Benue State Judicial Service Commission14 emphasised that no other tribunal (i.e. non formal Court like tribunal), panel or committee other than a Court of law would do.
In this writer’s firm view, the distinction sometimes made between crimes traditionally so called and traffic offences does not apply here. In some other countries like England and the USA, it may well be that persons other than Courts can tray traffic offences or they do not even need trial at all in the conventional sense; so that a policeman or other authorised person can issue a ticket to a traffic offender who then becomes obliged to pay the stipulated fine. In Nigeria, such a rule has not yet been successfully made and can hardly been made under the present Constitutional provisions on fair hearing and trial generally. No distinction has been made in the interpretation of the Constitution to suggest that traffic offences may be tried by persons other than Courts of law. On the contrary, the case of Jonathan Odutola v. Corporal Edmund & Ors14 which also involved a traffic offence has put the matter beyond question when the Court declared that the provisions empowering a traffic management agency to as it were try offenders or punish them were unconstitutional.
It is this writer’s considered view that despite the couching of subsection 10(5)(b) of the Act, it does not really confer on the Commission any jurisdiction or competence to determine or make any legitimate finding that a person has actually committed the offence of obstructing a highway. It empowers the Commission to “remove and detain for a reasonable length of time any vehicle which has been parked in a manner that causes an obstruction on a highway”.15 Prima facie, the use of the phrase “which has been parked in a manner that causes an obstruction” without any qualifying words such as “suspected” or “reasonably suspected”, gives the impression of a certainty i.e. that the fact of an obstruction has been ascertained (i.e. decided or determined) and is no longer an allegation or suspicion. The full impression is that when the Commission is towing the vehicle, it would first have come to the conclusion that the vehicle had “been parked in a manner” that actually caused “an obstruction”. This means it would have found as a fact that the offence of packing the vehicle in a manner that caused an obstruction had already been committed. In their plain and ordinary reading, the words of the provision do not give the impression that the Commission will first seek for such a determination to be done by anyone else other than itself before it can proceed to remove and detain the vehicle.
That notwithstanding, the real intendment of the subsection is to ensure that the perceived offence of obstruction of the highway is abated while the offender later stands his trial. The power of removal and detention of the vehicle is simply calculated to enable the Commission clear the highway and remove the obviously serious danger of risk to lives and property which an obstruction on the highway can cause. The power is merely the same with the power of any law enforcement agency to arrest and detain any offender whose activities pose grave risks to the society (a dangerous thief, robber or murderer for instance) thereby keeping him away from the public for the period allowable in law. The removal and detention of the vehicle are not the eventual punishment for the crime. Item (2) of the Second Schedule to the Act provides the punishment for “road obstruction” to be
N3,000.00. The omission of
such words as “suspected” or “reasonably suspected” from the subsection was
Even if it is assumed for the purposes of argument that the subsection [i.e. 10(5)(b)] or indeed any other provision of the Act or other law actually set out to empower the Commission to decide the issue whether or not any person has actually committed any offence and to administer punishment on the person by way of a fine (whether or not the fine is specified in Schedule 2), then the provision must also fail for unconstitutionality. In the very recent case of Jonathan Odutola v. Corporal Edmund & Ors16 the Lagos Division of the Federal High Court dealt with provisions of the Lagos State Traffic Management Agency Law which specifically empowered that road traffic management agency (which is in several respects is similar to the Commission in its operation) not only to arrest motorists but also to impose and collect different amounts of fines for different kinds of specified offences. The Court declared the provisions invalid, reaffirming the doctrine that only a properly constituted Court of law can try anyone for a crime and impose punishment following a proper conviction by such a Court. Even if there would have been any doubt on whether or not any provision of law empowering or seemingly empowering the Commission to make determinations of criminal liability and impose fines was legally legitimate, that decision has completely erased any such doubt.
As already pointed out earlier an officer of the Commission who arrests a motorist, confronts the motorist with an allegation that he has committed an offence and asserts to the motorist that he (the motorist) is liable to pay the prescribed fine has merged in himself the roles of the arrester, the prosecutor and the judge as well as that of the executor of the punishment. He has been a judge in his own cause – which is indisputably illegitimate under the rules of fair hearing and our Constitution. Any rule that allows an officer of the Commission, a policeman or indeed anybody whosoever to both prosecute and make a finding or conclusion of guilt is palpably wrong under our Constitutional jurisprudence. It is of no moment that such a thing happens in some other countries like England and the USA. No doubt, most of our rules have their roots in the English law. However, it amounts to a colonial hangover not to realise the clear difference between the English unwritten Constitution (in which even fundamental rights have their roots more in case law or common law and can be overridden by a statute of the legislature) and our written Constitution. Any rule of law that infringes those clear stipulations of the Nigerian Constitution in favour of the citizen even in the least must fail for unconstitutionality under section 1(3) of the Constitution. It does not matter that under the different legal regime of England or US, such a rule is permissib le.
It is our humble but firm view that even if extrajudicial trial was by any means allowable in Nigeria, the Commission’s corps members would still stand disqualified being non-lawyers. Though traffic offences are often cast in strict liability words, the offences created by the Act, in this writer’s view, are not cast in strict liability wordings. There is no difference in the style of wording between the crimes created in section 10 (which some may say are only traffic offences) and the words created in Part Three i.e. sections 20 to 27 which clearly deal with offences that are not just traffic offences but criminal offences in the traditional sense. It follows therefore that in a determination of the guilt or otherwise of an alleged offender the normal ingredients namely, actus reus and mens rea should be proved and found as existing facts. The prohibited action must be accompanied by a guilty mental disposition to commit crime or by a prohibited care free attitude.17 Thus, the mere fact that a motorist has driven his car with only one of his brake lights working or without a fire extinguisher may not automatically translate to guilt on his part. It may well be that some extenuating circumstances exist which would absolve him from guilt should a legally trained mind, capable of appreciating the nuances of the law and its concourse with everyday realities in the society in question, considers the matter. For instance, Chukwudi is shown to have checked his brake lights and found both to be working well just before embarking on the journey in question from Sokoto to Ibadan. However, unknown to him, one of the two lights developed a fault in the course of the journey in a way that nothing could have indicated to him that it had become faulty. He actually got to know that it was faulty only when the FRSC corps member stopped him and examined the brake lights just five kilometres to Ibadan. Everything else suggests that Chukwudi is a law abiding citizen and would diligently meet a motor mechanic to remedy the situation once in Ibadan. Except the offence is shown to be that of strict liability, a Court seised of a proper understanding of the law and its dynamics in a progressive society is not likely to convict him. A conviction in such a circumstance would amount to injustice and indeed a perversion of justice. Even if by any means the Court convicts him, it may not impose the maximum punishment.
A FRSC official not trained in the law is not likely to understand those relevant nuances of the law and their application. It does not matter however well educated or otherwise enlightened he may be. His competence in trying an offender, however simple or straight forward the issues may appear to him, can only be likened to the competence of a highly proficient land surveyor who, without any training in medicine or surgery, undertakes a kidney or heart transplant. A very competent fellow indeed, set only to commit murder of the unfortunate person who has come to him for the kidney or heart transplant! In the same way, the FRSC official will most certainly (undoubtedly) occasion injustice in his ‘application of the law’. He would defeat the aim of the law in providing for those offences and punishments therefor. He would be a most nauseating robot on the highway, constantly upsetting those who are knowledgeable in the relevant rules and factors, who could be lawyers and judges. He would be accumulating in grave proportions very adverse and potentially very harmful public opprobrium for the FRSC. Neither the Commission nor the general society needs such a situation. Incidentally, these are probably exactly what have been taking place more often than not on Nigerian highways as FRSC officials have been “applying the law” on the “offenders” they have been coming across. The very unacceptable nature of the situation has been lost on the country and the Commission just because the majority of the populace (and indeed possibly the Commission itself) have been unaware of the unlawfulness and indeed illegality of such trials and their consequences on the social weal.
Any argument to the effect that the Act deals with traffic offences only17a and that they are simple and can be dealt with by persons other than lawyers. However simple an offence appears to be, it will amount to a perversion of justice to have non-lawyers i.e. non-judicial officers to try them. It is of no moment that in some other countries police or other officers whose training most probably vary considerably in quality and content from the training of our FRSC or police officers. It may well be that in such countries the training of police officers and the equivalents of the FRSC officers include the rudiments of the law and traffic offences case management.
We now turn to the question whether or not a motorist can opt out of proper trial by a Court of competent jurisdiction and elect to submit to a trial by the Commission (through its officer who stops him on the highway and hands him a notice of offence form) and to pay the fine stipulated for the offence he has allegedly committed. The clear answer in law is a very resounding “No”. The first thing to point out is that subsection 10(4) simply authorises the issuance of a notice of offence sheet but does not state what the contents should be. It does not say that the sheet should enable the alleged offender to opt out of trial. It was in the administrative interpretation and application of the provision that the opting out was inserted into the form. The law is good but its application seems faulty.
The illegitimacy of the chance to opt out of trial is due to the fact that the right to trial by a Court in a fair manner is incapable of being waived. Fundamental rights protected by the law, especially the Constitution, are of different categories with respect to whether or not they serve the individual alone or the individual together with the larger society. Those that are deemed to serve the individual alone as it were can be waived by him but those that are made for him and the greater society he cannot waive even with respect to himself alone. The right to a speedy trial belongs to the first class; so a litigant can decide to waive it by applying for an adjournment. We dare say that he can even decide to apply for a long adjournment if he so wishes and same is agreeable to the other party and the Court. The right to fair hearing, such as in a criminal trial before a Court of competent jurisdiction, is in the second class and cannot be waived.
Thus no Nigerian can waive that right and choose to undergo a trial before a biased judge or Court or to have the principles of fair hearing breached in any way. Even if he has reasons to want to do so; even if he believes that it is in his interest to do so, the law disentitles him from doing so. In fact, even if he can show that indeed it is in his interest to forego such a right conferred on him by law or that enjoying the right will occasion inconvenience on him, the greater good of the society compels him to enjoy the right and undergo the inconvenience. The greater interest of the society in the entrenchment of fair hearing and the attendant deeper civilisation of society which it engenders become greater than his individual choices and he cannot effect a waiver of that his right. In Jonathan Enigwe & Ors v. Michael Akaigwe & Ors18 Nnaemeka-Agu, JSC stated the issues clearly thus,
In my view the right to fair hearing comes within the second category. This is because fair hearing in a properly constituted court or tribunal is an essential pre-requisite to peace and stability in society. The only alternative to it is chaos and jungle justice. Every member of the Nigerian society is as much interested in the peace and stability of the nation as the litigant in court who must have qualitative justice for him to be satisfied, win or loose. …There may be some instances in which a fundamental right can be waived. Such may be the case in a strictly private right which has no public implications, such as some rights to private and family life. But even in that category, for it to be capable of waiver, the act complained of must have no public implications.
It was obviously of such rights that the Indian Supreme Court stated in Bhram Khurshid v. Bombay State19
The fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.
As a matter of law, therefore, every motorist in Nigeria is disentitled from electing to opt out of Court trial and to pay any fine to the Commission based on any notice of offence form. In further consequence, to the extent that the form presents to a motorist accused of committing any offence the option of opting out of proper trial, it encourages illegality and is void for illegality. Again, since it purports to grant a ‘right’ forbidden by the letters and spirit of the Constitution, it is at variance with the Constitution and, therefore, completely null and void. In pure law therefore, every officer of the Commission who offers that form and any motorist that takes the bait and submits to trial by that officer have both acted in clear breach of the Constitution.
An officer of the Commission can only arrest a motorist for any alleged offence and then advise him as to the date and venue of his trial unless a mobile Court is available to try him immediately20. The officer can also impound the driver’s licence of the alleged wrongdoer under section 10(5)(d) of the Act and let him continue with his journey and to later appear at the set venue and date of his trial.
The Commission’s intendment in providing for an option of payment of fine without a trial can be achieved by a wording to the following effect,
“You are accused of having committed the offence of ………………. which, if you are convicted by a Court of law, will attract a fine of
N………………. If you believe that
you are guilty of the offence and would plead guilty in Court you may elect to
pay the prescribed fine of N……………. and
you will not need to go to the Court.”
Such a wording, even if not completely perfect, is definitely better that the one presently being used. Here, the alleged offender knows himself to be guilty and would plead guilty should he go to Court. He is not waiving a trial None is necessary in the circumstances as he has become aware of his guilt through no contribution or effort of the accuser, the Commission’s officer.
As a matter of fact, the Act provides for trial by Courts of law, not the Commission or its officers. So even if the undesirable situation of trial by the Commission in any of the ways considered above was ever a creation of the Act, the Act itself also provides the solution. Section 10(8) empowers a State Chief Judge, just like that of the FCT, to establish special or mobile Courts for the purpose of a speedy trial of traffic offenders under the Act.21 Undoubtedly, a mobile Magistrate’s Court can very quickly dispense with prosecutions brought under the Act right there on the road where the offence has taken place. Being summary trials, as many cases as arise in a day can be adequately addressed. It is a practice already being successfully adopted by several states of the Federation with respect to sanitation offences and kindred issues. It will save time and resources for every one. If a motorist is taken to a mobile Court and he feels that he needs more time to prepare for his defence (to get his lawyer involved, for instance) the Court should be disposed to grant him an adjournment. A refusal could well amount to a denial of fair hearing in some circumstances. Apart from such mobile Courts one or more Magistrate’s Courts could be designated traffic offences Courts. Through each and both of these ways of using Magoistrate’s Courts for such offences, the tenets of the law securing the right to a fair trial before a Court, and indeed all other expectations of the law, would also be satisfied.
Of course, the use of mobile Courts in all the states and in as many as the locations where the Commission’s officers presently normally operate may involve some logistic difficulties. Shortage of judicial manpower and the logistics of transport as well as other work facilities will involve costs on the part of the Commission. These are however not insoluble problems. The Commission can very well work out an arrangement with each State (as well as FCT) judiciary by which a certain number of Magistrates are dedicated to working with the Commission’s road officers each month. The Commission can pay the monthly emoluments of that number of Magistrates into the coffers of the State judiciary each month as part of the Commission’s operating costs.
For persons used to quick fixes, the use of mobile Courts even in such practical ways as we have suggested above may well still look far less attractive than the present approach whereby motorists are tried and punished as it were by FRSC officials. They may argue that the present practice is cheaper, faster and indeed more convenient for almost everyone. Our suggestions herein for a recourse to the legal or lawful process may therefore even extract a resentment or make the law look like an ass to such persons. Indeed, in the bid to ensure that every person gets his due under the law, the legal process may sometimes seem slow or even cumbersome, particularly to a businessman or a dashing upwardly mobile person. Undoubtedly, the law (particularly with respect to the speed at which cases are heard and determined in the conventional Courts) can do with a level of enhancement of speed.22 Subject to that, the society needs the legal process even if it is erroneously perceived as slow or cumbersome. It is in that process that the liberties of mankind as well as the safety of the citizen’s fortunes lie. A man may criticise the law for insisting on due process so as to secure the good of all – until the day he is on the receiving end of bad behaviour, needing the law’s protection or intervention.
B. Detention of Motorists by the FRSC
The Commission is not known to normally arrest and detain motorists in any cell or such place. It sometimes happens however that they refuse to allow a motorist to move on. A motorist is accused of having committed an offence in circumstances that it is considered insufficient to seize his driver’s licence. An example is when the offence is that of driving without a driver’s licence. The Commission’s officers may consider that the offender’s presence is necessary. Under section 10(5)(h), they can impound the car but there is no express power in the Act for the arrest of the motorist. What this means is that much as they can keep the car, they cannot keep or detain the motorist there against his will. He can decide to abandon his car and leave, to go and stand his trial and reclaim the car later.
It may be arguable that considering the totality of the Commission’s powers and duties under the Act, the power of arrest is invariably implicated and can be exercised. With all due respects, such an argument is hardly supportable. Anything that curtails the liberty of the citizen must be specifically provided for. It is noteworthy that even where the power of arrest is specifically conferred, it can be resisted if the person who has come to effect arrest does not have an arrest warrant – except in the exempted circumstances such as where the arrester sees the offender in the very act of committing the offence and arrests him.
It does not need any exceptional thinking to see that situations may arise now and then where it becomes necessary for the Commission’s officer to be able to arrest an offender, particularly a very recalcitrant one. We believe the law should expressly empower him to arrest in appropriate circumstances.
C. Education of Drivers and Motorists
One of the principal aims set out for the Commission by the Act – reflected in the long title as well as section 10 - is the education of drivers or motorists in the importance of discipline on the highways and the use of highways generally.
As a road user, this writer knows that the quality of driving on Nigerian roads is rather low and that many lives are lost every now and then due to bad driving, worsened by the very bad state of the roads. The poor quality of driving has arisen because many drivers on Nigerian roads do not seem to understand the basic tenets of driving. They often drive as if they did not acquire their driver’s licences in the proper manner. The fact that a driver’s licence can be acquired without any semblance of training or driving test or even without the applicant being sighted at all by the licensing authority is common knowledge. Driving trainings by the Commission can seriously improve the quality of driving and reduce the carnage on the roads. It will also reduce the avoidable embarrassment and shame which enlightened drivers go through on the roads as they see the terrible driving behaviours exhibited in his country particularly by commercial vehicle drivers in such places as Lagos and Aba, Kano and Ibadan.
Though the Act confers on the Commission a right to establish and run a driving school in each state of the Federation, it does not give it any effective legal instrument by which to ensure compliance by drivers and motorists if and when they are required to go through such driving schools. The nearest to such an instrument is the power granted the Commission at section 10(2)(e) to determine from time to time the requirements to be satisfied by an applicant for a driver’s licence before he can be given one. No doubt, power to make such prescriptions also includes power to prescribe conditions to be satisfied by any licensed driver before his licence can be renewed upon expiration.
The absence of an effective power of compulsion on the Commission’s part can ensure that whatever prescriptions the Commission makes in exercise of that power to train and retrain drivers will not be effective in bringing many drivers or any appreciable percentage of drivers in Nigeria to undergo any driving training or refresher training. Though one does not have statistics to this effect, it seems eminently reasonable to suppose that the number of people that go for new licences or renewal of licences is small in comparison to the total number of drivers the country already has. Whatever improvement this small fraction gets may well be insignificant and incapable of positively influencing the country’s negative driving culture. What is more, the fact that people can still get licences even without appearing at all at the licensing office will ensure that many new applicants and applicants for renewal will not be covered or affected by any such new regulations. Therefore, even within this small percentage of drivers, the expected impact of such regulations may well be most minimal.
The Commission’s efforts in training drivers will be much more effective and help to achieve the Commission’s objectives under the Act if it has a way of compelling the attendance of drivers and prospective drivers. It may well be that a provision in the Act empowering the Commission in appropriate circumstances to compel the attendance of potential drivers or licensed drivers at driving refresher courses or exercises is urgently necessary.
In the past two years in Rivers State, there has been an observable improvement in the quality of driving and level of obedience of traffic laws and regulations. This has been because the River State traffic management agency for many months implemented a scheme by which traffic offenders were subjected to psychiatric tests and some days of compulsory training in driving. Nobody who fell into the waste of time and indeed humiliation involved or heard the details from another person ever wanted to fall into it. It simply shows that diligent enforcement of rules, including new and refresher trainings for drivers, can be quite effective.
D. Pre-Action Notices in Suits Against the Commission; Enforcement of Fundamental Human Rights
Section 16 of the Act emphatically prescribes that no Suit shall be commenced against the Commission on or before the expiration of a month’s period after the would-be Plaintiff or his agent has given a written notice of intention to sue to the Commission. The notice is required to clearly state the cause of action, particulars of claim, name and place of abode of the would-be Plaintiff and the relief he claims.
It is already settled in the law that a requirement for such a pre-Action notice does not amount to a denial of fair hearing and is constitutionally valid. Indeed as a general rule of law, where it is provided for like under section 16 of the Act, it must be complied with as a condition precedent for the institution of a valid and effectual Suit. If one is required but not given, it amounts to an irregularity in the exercise of jurisdiction and the Court is robbed of a jurisdiction to entertain the matter: First Bank of Nigeria v. Chief VictorNdoma-Egba.23 In consequence, as a general rule of law if any Suit is filed against the Commission without the notice first being given, the Court before which the Suit is brought will have no jurisdiction to hear and determine it.
However, the absence of jurisdiction occasioned by the absence of a pre-Action notice does not amount to a total lack of jurisdiction; so that unlike a case of total lack of jurisdiction this irregularity can be waived (by failing to plead the irregularity24) and the Court’s jurisdiction gets reinstated: Katsina Local Government Authority v. Makudawa.25 It is also law that since the notice is a condition precedent inserted in the statute for the benefit of only a particular party in a proceeding and not for the entire citizenry, it cannot be considered indispensable in the sense of not being capable of being waived. A party in whose favour such a condition precedent to a Suit has been enacted, the Commission in this case, can decide to waive it. It can do so by keeping quiet and participating in a Suit even though the Suit was filed without the notice having been given. That was exactly what happened in Feed and Food Farms (Nig.) Ltd v. NNPC26 where a notice of similar length was required before NNPC could be sued but was not given. When the Corporation raised the issue for the first time at the Court of Appeal and that Court upheld the objection, the Supreme Court very easily upturned the judgement on the basis that the Corporation had at the trial waived its entitlement to the notice. Therefore, if the Commission behaves in any way tantamount to a waiver of the entitlement to the notice in any particular set of circumstances, it cannot insist on the notice.
If a notice is given but it falls short of the stipulations contained in the section, the consequence will depend on whether or not what has been done can be seen as a substantial compliance with the provisions of the section. It has been decided with respect to similar provisions that though the word “shall” is employed with respect to what the contents of the notice should be, that particular “shall” in the provision does not import mandatoriness but is rather a directive or directory. Therefore, though the notice in question was short of the address of the giver it was sustained as valid in Amadi v. NNPC.27 If however the notice giver stated only his name and address leaving out the cause of action, relief claimed and particulars of the claim, any argument to the effect that the Suit should be sustained may well be a lame one.28 If the notice states the relief claimed and the cause of action without the other things it will, in our view, be eminently arguable that it is substantially a good notice and the Suit should subsist.
If the Suit in question is one for the enforcement of a citizen’s fundamental human rights is he still required to give this notice? The answer is in the negative as it would work injustice should the notice be insisted on. Section 46(1) of the 1999 Constitution entitles any person who alleges that any of his rights under Chapter Four of the Constitution “has been, is being or likely to be contravened” to apply to a High Court for redress i.e. to have such fundamental human right of his enforced. He need not wait until there is a breach of his right before he can sue.29
Very often, he would normally be acting in a hurry. Even under the old rules of fundamental rights enforcement i.e. the 1980 rules, it was eventually recognised that since such Actions are always to be handled with dispatch an Applicant is not required to give any pre-Action notice first. In Mr. Olayinka Olatunji & Anor v. Mr. Abdulateef Hammed30 an Action was instituted against the Federal Airport Authority of Nigeria for enforcement of fundamental rights without a pre-Action notice which was a requirement for suing the Authority. Objections based on the non issuance of the notice were dismissed.
The Court’s position on this point is highly supportable. Even though the Act says “no Suit” can be filed without a pre-Action notice, it is clear that any argument saying there can be no exception can only be misconceived. After all, it is already established that even where other statutes have used such words, actions for ordinary breach of contract are not included.31 Again, though the Courts have held that a requirement for a pre-Action notice in regular Suits sits well with sections 6 and 36 of the Constitution, the same cannot be said of section 46(1) which empowers a person to sue for the enforcement of his rights even when it has not been breached but a breach is likely. Unlike other Suits in law in which the cause of action only arises when a man’s rights have been tampered with, in fundamental rights enforcement a cause of action can arise before the infringement. If that is so under the Constitution, it will clearly be against the words and spirit of the Constitution for any imputation to be made that a person the infringement of whose right is likely to occur in the next one week or two must first wait and give a one month notice to the aggressor before he can sue the aggressor. It will amount to expressly taking away the right to sue when he sees that his right is likely to be breached. Such a rule cannot but fail for unconstitutionality. That cannot be taken to be the intendment of section 16 of the Act, else it will be declared void by the Courts.
The fat that the Constitution wants an unhindered access to Court with such Suits is even now more abundantly clear under the new rules of fundamental rights enforcement. It, the Fundamental Rights (Enforcement Procedure) Rules, 2009, brings out far more clearly the necessity for. For instance, the old requirement for an applicant to apply ex-parte for leave before bringing the substantive application has now been dispensed with. In the same way, there is now a duty on the Court to compulsorily fix the case for hearing within 7 days of filing; there is now a requirement of frontloading of processes and specification of time frames for filing of processes such as preliminary objections etc and there is reduction in filing fees as well as the loosening of the locus standi rules. All these are geared towards a more expeditious treatment of rights enforcement Suits than was the case under the 1980 Rules.32
E. Inability to Enforce the Rule on Use of Sirens Etc
Section 10(3)(o) of the Act empowers the Commission to regulate the use of sirens, flashers and beacon lights on vehicles other than ambulances and vehicles belonging to the armed forces, Nigeria Police, Fire Service and para-military agencies. Over an again the rules permitting only the President, Vice President, Governor, Deputy Governor and a few others to use sirens33 is observed in breach by politicians and even businessmen who use sirens with reckless abandon. This write has it on good authority that all that such unauthorized users need to do is to have a mobile policeman with them in their car or convoy and nobody dares stop them or demand obedience to that rule. One understands that because they carry guns, mobile policemen treat the Commission’s officers who bear no arms with a level of contempt and disdain when any request of obedience is made on any convoy or car the mobile policemen are accompanying.
Though section 19 empowers the Commission’s officers exposed to high risk in the enforcement of the provisions of the Act to bear arms and enjoy other powers, authorities and privileges as policemen, the Commission has been commendably restrained in bearing arms. The mobile policemen therefore do not see the Commission’s officers as their equals when it comes to capacity for violence. In this writer’s view the bearing of arms by the Commission’s officers may not correct the mobile policemen in this their anomaly. There seems to be an unwritten rule in the Nigerian uniformed forces by which the army is held in awe, followed by the Air force and Navy, then the police, the FRSC, the Civil Defence Corps etc. Under that rule, the mobile police officers fear and avoid soldiers though the two groups bear arms. In the same way, even if the FRSC officers begin to bear arms, it may not change the attitude of the mobile policemen towards them.
The solution lies in the further development of civility amongst the police and subjection of its officers to the law of the land. It may also be that a rule should be made under which the Commission should copy the particulars (name and service number) of any policeman of member of any other force flouting or helping anyone to flout the rule on sirens etc to enable the police or other force he belongs to discipline him.
This paper has tried an examination of some of the legal problems that have arisen or that may soon arise in the operations of the Federal Road Safety Commission. With respect to each problem a solution has been sought and proffered. It is hoped that the discussion has been of value to the participants at this seminar and will be valuable to the management of the Commission and indeed other relevant stakeholders in the search for a better legal regime for the Commission’s operations.
1 No. 22 of 2007 repealing the earlier Act of the same title made as No. 45 of 1988 amended in 1992 and published as cap F19, LFN 2004 in its Issue 1.
1 Since every motorist in the sense of every driver should, except in really exceptional circumstances, first be 18 years or more before he can get a driver’s licence under regulation 22(2) of the National Road Traffic Regulations.
2 The law as an instrument for effective social engineering for the good of man
3 Whether the Commission can try offences and impose punishments and whether or not the opting out choice is available. These are questions on the law as it presently is.
4 Whether or not legal policy should create that option; a question on the law as it can be.
5 Those dynamics of the now and the future due cognizance of which the law (after a calm analysis) must take and then regulate them with a view to not only providing the best legal environment for the now but also taking the society to the next stages, the realities and essence of the future.
6 This writer is maximally committed to the sociological school of law and irrevocably believes that the aim of the law must be social good. A variant of that doctrine must necessarily be that study which does not make for the solution of identified problems is hollow and of no moment. Much as there is great room in the academics for theorisation and thin thread postulations, in law the end of all such things must be social good by way of solving (or at least actively attempting to solve) existing life problems. Life is not about mere theorisation but advancement of life through the removal, curtailment or containment of existing and future problems.
7 Emphasis is this writer’s. It goes on to state in a very conclusive manner that “the owner or driver of the vehicle shall pay N200.00 (two hundred Naira) for every day or part thereof of such detention in addition to any other penalty which may have been prescribed under this Act”
8 Subsection 10(5)(d)
9 Subsections 10(5)(e) and (h)
10 Sections 20 – 27 provide punishments for the offence created by them. In at least one instance it creates an additional punishment. While item 11 of Schedule 2 prescribes only a fine of
for dangerous driving, s. 21 provides 2 years imprisonment as an additional or
11 Adekeye, JSC in Jolly Nyame v. Federal Republic of Nigeria (2010) All FWLR (pt. 527) 618, 662 B – C. See also A-G, Bendel State v. A-G, Federation (1981) NSCC 314; Sergent Awuse v. Dr. Peter Odili (2005)
12 Even under the statutorily interpretation principle of expressio unis est exclusio alterius those provisions exclude adjudication and punishment by the Commission since they are not listed or mentioned amongst the powers conferred on the Commission.
13 (2011) 12 NWLR (pt. 1260) 1
14 (2005) All FWLR (pt. 277) 856
14a FHC/L/CS663/2011. Judgement delivered September 2011. For details see note 16 infra.
15 This is subject to the proviso which deals with a situation where a removal would damage the vehicle Emphasis is this writer’s.
16 FHC/L/CS663/2011. Judgement delivered September 2011.
17 It is well known for instance that offences of negligent or reckless driving hardly need a guilty mental disposition or decision to so drive but often constitute of a care free state of mind. See, as examples, the cases of Adesunloye v. FRN (2002) 9 NWLR (pt. 773) 660 and Oguoneze v. State (1997) 8 NWLR (pt. 518) 566, 585.
17a Which cannot be right in the light of sections 20 – 27 which provide for conventional crimes like causing somebody’s death through dangerous driving
18 (1992) 2 NWLR (pt. 225) 505, 535H – 536C.
19 (1955) A.I.R 123. Per the Chief Justice. For other elaborations of the issue by the Nigerian Supreme Court see R C Okafor v. A-G, Anambra State (1991) 2 NWLR (pt. 225) 505; Ariori v. Elemo (1983) 1 SCNLR 1.
20 On this see the immediate next part of this paper.
21 This is in addition to the provision of 10(7) which enables a suspect to be tried in any Magistrate’s Court in the FCT or a State within the boundaries of which the offence was committed.
22 On this generally see this writer in Delay and Congestion in Nigerian Courts: Some Urgent Steps and Viable Alternatives in U U Chukwumaeze and S. Erugo (eds), In Search of Legal Scholarship Abia State University Law Centre, Aba, 2001.
23 (2006) All FWLR (pt. 307) 1012. In that case, the requirement of a lawyer’s pre-Action notice to his former client before he can sue the former client for professional fees. See also, in other circumstances, Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387.
24 I.e. failing to specifically plead that the notice was not given by the Plaintiff when he should have given it before suing.
25 (1977) 7 NSCC 119
26 (2009) All FWLR (pt. 484) 1436. As already indicated, one way of failing to raise the issue and thus waiving the right is to fail to specifically plead the non service or non issuance of the notice: Solomon Ajao v. Jos Metropolitan Development Board (2006) All FWLR (pt. 302) 19.
27 (2000) 10 NWLR (pt. 674) 76.
28 Such would amount to a failure to state a condition or relate information that would enable the Defendant determine whether or not to settle the matter which Karibi-Whyte, JSC stated in Amadi v. NNPC should affect the validity or adequacy vel non of the notice.
29 Abbas A. Machika v. Katsina State House of Assembly & Anor (2011) 3 NWLR (pt. 1233) 15.
30 (2010) All FWLR (pt. 540) 1365. The Action was also brought 21/2 years after the cause of action arose as against the one year prescribed by the statute and
31 See Amadi v. NNPC supra
32 On these generally see Hon Justice CC Nweze, The New Regime of Human Rights Litigation in Nigeria: Old Rights, New Enforcement Strategies in C C Nweze, A J Offiah and A Mogbo (eds) Beyond Bar Advocay: Multidisciplinary Essays in Honour of Anthony Okoye Mogbo, SAN, (Impact Global Publishers Ltd, Enugu, 2011)
33 See cap.