THE LANDMARK JUDGEMENT JAMES V. GOVERNOR OF EDO STATE & ORS, (2021) LPELR-54203 (CA)

     THE LANDMARK JUDGEMENT

 JAMES V. GOVERNOR OF EDO STATE & ORS, (2021) LPELR-54203 (CA)

                       BY 

METI MONDAY UKPEH ESQ. 

(AMA-MME ANANA-OWO) 

 UYO NBA BRANCH

08164013230

Metiukpeh8899@gmail.com

ABSTRACT

Verily, Denis de Braxton, a famous legal philosophy, had said thus: the world is governed by man, divine or law. Accordingly, law as a modulator of conducts in the society has had various applications in nations and Nigeria is one of those nations as evident in its laws such that infractions to these laws have a resultant consequence. One of the major areas of law that has the highest rate of infringements is the area of fundamental rights that have been enshrined in the constitution of Nigeria (chapter IV). These rights are inherent and inures on every being such that infringements on them have local or domestic and international sanctions as evident in so many international treaties, conventions, protocols of international and regional bodies of comity of nations.

This work will critically analyze the case of Mr. Charles Apiloko James v. The Governor of Edo State & Ors. (2021) LPEKR-54203 (CA), viz-a-viz fundamental rights canvassed therein, the legality or validity of verbal order by the Edo State Governor, the connectivity or otherwise of means of movement, restriction of movement itself and allied discrepancies embedded in the case.

INTRODUCTION

Let us reflect on this: 

The Liberty of Man, in Society, is to be under no other Legislative Power, but that established by consent, in the Common-wealth, nor under the Domination of any Will, or Restraint of any Law, but what the Legislative shall enact, according to the trust put in it.

Per ~ John Locke

This work, in order to break the legal suspense created by this case, will dissect the case, run a critique of the case, and demystify some of the thought-provoking questions embedded thereof.

Some of these questions that will be treated here include:

What analytical approach must a court of first instance take when confronted with this nature of case before drawing inferences, hence its decision?

Can a verbal order of the Executive governor of Edo State (hereinafter referred to as “Ist Respondent”) banning movement of motorcycles be validly justifiable in the light of section 41(2) of the constitution of Nigeria?

Can we safely hold that the verbal order of the Ist Respondent made on the 11/6/2013 banning the use of motorcycles constitutes a breach of fair hearing of the appellants?

Can` the Governor, Ist Respondent, comfortably rely on section 203 of the Criminal Code, Laws of Bendel State as applicable in Edo State to justify his verbal order of banning the use motorcycle in the aforementioned places in Edo State?

Can the Ist Respondent, state governor, in this case comfortably rest on sections 5(2) and 14(2)(b) of the 1999 Constitution of Nigeria to circumvent vis-à-vis restriction of freedom of movement of citizens without an enabling statute?

Can restriction of a means of movement (motorcycles, cars and other conveyances) be said to be tantamount to restriction of individual’s movement hence an infringement of right of movement?

For the purpose of this work, permit me to reproduce the facts of the said case here below:

The case is predicated upon the appeal against the judgment of the Federal High Court, Benin Judicial Division Coram: A. M Liman J., in suit no. FHC/B/CS/89/2013, delivered on 21/1/2014.

The case of the 1st appellant, Mr. Charles Apiloko James before the trial court was that the 1st Appellant is the owner of a Honda CM motorcycle with registration no. QC 093 GBZ. On 11/6/2013, the Ist Respondent , the Governor of Edo State verbally announced a ban on the use of motorcycles from plying all the roads in Oredo, Ikpoba-Okha and Egor Logal Government Area of Benin City, Edo State and Oluku and Ekosodin villages in Ovia North-East Local Government Area and Eyean Village (coca-cola area) in Uhunmwodae Local Government Area, effective from 12pm on 16/6/2013, the 1st Appellant was on way to his place of work at the Benin-Asaba bye-pass on his duly licensed motorcycle when he was accosted by some security officers and was forced by them to stop and they then seized his motorcycle on the ground that he was  in violation of the verbal ban made by the Ist Respondent and despite the Ist Appellant’s explanations he was ordered to ride his motorcycle to New Benin Police Station; but before the police man could climb onto his motorcycle, he zoomed off and took another street to return to his house.

The case of the 2nd Appellant, Mr. Osbert Agho was that, he was a marketer who employs the services of duly licensed commercial motorcycles to enable him transport his products or wares to his clients. However, on 20/6/2013 while on board a commercial motorcycle, he was accosted by these security officers who told him and the motorcycle rider to alight therefrom and seized the said motorcycle on the ground that they were in violation the verbal ban by the Ist Respondent, which gave them the authority to confiscate and destroy any motorcycle found plying the roads in Benin City and its environs. Consequently, one of the officers climbed onto the said motorcycle and rode it away and he had to walk back home with his wares being unable to deliver them to his clients.

This work will be predicated on the unbundling of these salient thought-provoking questions, viz:

What analytical approach must a court of first instance take when confronted with this nature of case before drawing inferences, hence its decision?

It is my submission that when the analysis of the findings of the court of first instance is put to a strict litmus test by any superior court, it goes to show that there is always an imperative need for the court of first instance to ensure proper assessment, evaluation of evidence, and the probative value attached therewith is of utmost important for a trial court. Assuredly therefore, it is an obligation of the appellate court to intervene to re-assess the evidence on record of the court of first instance to reach the proper inference according to the streams of justice in such a matter.

 Can a verbal order of the Executive governor of Edo State (hereinafter referred to as “Ist Respondent”) banning movement of motorcycles be validly justifiable in the light of section 41(2) of the constitution of Nigeria?

According to section 41(1) and (2), thus:

Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.

Subsection (2): nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society…..

It is my submission that, what is reasonably justified is not a verbal order or even a written executive order made by a governor, but a written law made by the legislature which in this case is the Edo State House of Assembly. Consequently, it is only when a verbal order or even a written executive order restricting movement is made pursuant to or under an existing law which must in turn find relevance and validity under section 41(2) of the constitution. See section 36(12) of the 1999 constitution. 

See also Major Adebayo v. Nigerian army & Anor.

Can we safely hold that the verbal order of the Ist Respondent made on the 11/6/2013 banning the use of motorcycles constitutes a breach of fair hearing of the appellants?

Apparently, the law is that each material case of allegation of breach of right to fair hearing must be decided on the peculiarity of facts and circumstances of each case. This is apt and thoughtful, because fair hearing is majorly a matter of fact, hence it is only when the facts are ascertained or ascertainable that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of right to fair hearing of a person. See Newswatch Communications Limited v. Alhaji Ibrahim Atta. See also, Section 36(1)

However, with regard to the submission of the appellants as to the infringement of their right to fair hearing, I can comfortably submit that, the absence of the intention of the Respondents to target, SPECIFICALLY, the appellants negative every strings of breach of fair hearing canvassed by the appellants.

This is because, the right of fair hearing involves a more direct and personal interest in which an individual is affected or injured by an act or conduct directed at him. Thus, I humbly submit that there was no breach of fair hearing as canvassed by the appellants either in section 36 of the 1999 constitution or in Art. 7 and 12 of the African charter on Human and Peoples Rights.

Can` the Governor, Ist Respondent, comfortably rely on section 203 of the Criminal Code , Laws of Bendel State as applicable in Edo State to justify his verbal order of banning the use motorcycle in the aforementioned places in Edo State?

Notwithstanding the fact that, the  Ist Respondent, the Governor of Edo State & Anor did canvass the applicability of section 203 thereof, and same did not form the basis for the judgment of the trial court let alone canvassing same in the appellate court without first seeking and obtaining the leave of the appellate court, the submission as to the applicability of section 203 thereof in purportedly justifying the ban on motorcycles and punishments therein , is still clearly contrary to the provisions of sections 41(1&2) of the 1999 constitution of Nigeria. See Order 9, Rule 2 of the Court of Appeal Rules. See also Veepee Industries Limited v. Cocoa Industries Limited.

It is worthy of note, that Section 203 of the Criminal Code , Laws of Bendel State as applicable in Edo State  has not criminalized riding of motorcycle and it will certainly be wrong , unheard-of and totally out of place to read meanings into law that is very clear and unambiguous. The fate of our constitutional democracy does not lie in arbitrariness evident in such pronouncements by  pubic office holders. It is obviously in situations like this that the courts, especially the appellate court, will lend its voice to the glaring yearnings of justice. See Elephant Group Plc. V. National Security Adviser & Anor.

Can the Ist Respondent, state governor, in this case comfortably rest on sections 5(2) and 14(2)(b) of the 1999 Constitution of Nigeria to circumvent vis-à-vis restriction of freedom of movement of citizens without an enabling statute?

For ease of clarity, Section 5(2) of the 1999 Constitution provides thus: 

subject to the provisions of the constitution, the executive powers of the a state--- (a) shall be vested in the Governor of that state, and may, subject as aforesaid and to the provisions of any law made by the House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the government of that state or officers in the public service of the state, and (b) shall extend to the execution and maintenance of this constitution , all laws made by the House of Assembly of the state and to all matters with respect to which the House of Assembly has for the time being power to make laws.

 By section 14(2)(b) of the 1999 Constitution of Nigeria, it is provided thus: the security and welfare of the people shall be the primary purpose of government.

With those two sections, one could carefully note that there is practically nowhere the purported verbal order of the Ist Respondent, the Governor of Edo State, even if it were to be a written executive order. Save and except justified by an enabling law in consonance with section 41 of the 1999 constitution of Nigeria. Thus, any breach thereof can occasion a breach of fundamental right of movement. See Art. 12 of African Charter on Human and Peoples Rights (Rectification and Enforcement)

Can restriction of a means of movement (motorcycles, cars and other conveyances) be said to be tantamount to restriction of individual’s movement hence an infringement of right of movement?

This, in my earnest view, depends largely on the circumstances of a case. Although restriction on the means of movement is not directly stated in sections 41 of 1999 Constitution and Article 7 and 12 of the African charter on human and peoples right, but it could be implied therein as means of movement is strongly dependent on it user. The argument that it (motorcycle, etc.) does not affect the user directly as such users have other options for movement is still vague and opened for conjecture. Means of movement is strongly attached to its user and deprivation of a user of means of movement, however slight, is tantamount to deprivation of movement; hence an infringement on the right of movement. See Okafor v. Lagos State Government & Anor.

CONCLUSION AND RECOMMENDATION

From each limb of the questions carefully analyzed above, I could not help but to gently submit with the immutable words of Milton Aeropagitica, thus:

For this is not liberty…that no grievance should arise…but when complaints are freely heard, deeply considered and quickly reformed, then is the utmost bond of civil liberty that wise men look for.

Similarly,

The condition upon which God hath given liberty to man is eternal vigilance; which condition if he breaks, servitude is at once the consequence of his crime and the punishment of his guilt.

Per ~ John Philpot Curran 

 Thus, this case could be seen in the light of its rich academic value: the rule of law in checkmating arbitrariness of an executive order, the appellate court review of lower court decisions, the unavoidable role of the legislature, Edo State House of Assembly in particular, as it goes to show that a verbal order or written executive order cannot catapult to a law overnight without the instrumentality of the Edo State House of Assembly.

In the same vein, it is my strong recommendation that trial courts should, as a matter of expedient, ensure proper assessment of cases on the available findings before reaching its decisions. The legislature in the country should endeavor to extend, in clear terms, the breach of right of movement, to means of movement such as, cars, motorcycles and other conveyances. Arbitrariness of the executive should strictly be guarded against by the judiciary and even the executive, among other recommendations. In the end, it is the social contract, welfare and protection of lives and property that should be of utmost importance to all and sundry.

WORKS CITED

Ogunyannwo, S. The Effective Mediator (A Complete Guide For Practicing Mediators). Federal Republic of Nigeria: HMB “Hephzibah” PUBLISHERS, 2005.

Okon, Andrew E.(Hon. Justice). “Fundamental rights” in Duties And Liabilities of Police Officers Under the Nigerian Laws. Uyo: BSM Resources Limited, 2020, page 180-203.

Constitution of the Federal Republic of Nigeria, 1999 (2011, as amended)

Fundamental Rights Enforcement Procedure Rules, 2009.

Elephant Group Plc. V. National Security Adviser & Anor. (2018) LPELR-45528 (CA)

Eyiboh v, Abia & Others. (2012) 16 NWLR (pt. 1325) 51

Major Adebayo v. Nigerian army & Anor. (2012) LPELR – 7902 (CA)

Newswatch Communications Limited v. Alhaji Ibrahim Atta. (2006) 12 NWLR (pt. 933) 144.

Okafor v. Lagos State Government & Anor. (2016) LPELR-41066 (CA)

 Veepee Industries Limited v. Cocoa Industries Limited(2008) All FWLR (pt. 425) 1667 @ pp. 1673.

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