Can anybody be a judge in his or her own case? This was the import of the judgment delivered by the Court of Appeal in Lagos against Lagos State Traffic Management Authority last week, argues Davidson Iriekpen
The Court of Appeal sitting in Lagos, last weekend, ruled that the imposition of fines by the Lagos State Traffic Management Authority (LASTMA) was illegal.
The court, while ruling on the appeal filed by the Lagos State Government to challenge the decision of the Justice Okon Abang of the Federal High Court in Lagos in 2011, held that imposition of penalties by LASTMA ultra vires its power, especially where no platform was established to observe the principles of natural justice.
Delivering the lead judgment by Justice Jamilu Yammama Tukur, which was adopted by Justice Biobele Abraham Georgewill and Justice Abimbola Osarugue Obaseki-Adejumo, the court held that “by the provisions of section 1 (1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, the constitution is supreme and its provisions are binding on all authorities and persons in Nigeria.
“Therefore, if any law is inconsistent with any provisions of the constitution, the constitution shall prevail and other law shall to the extent of that inconsistency be void,” the court cited Nosdra v. Exxonnmobil (2018) LPELR -44210 (CA), pp 5-9 para E-C.
Also, it held that the imposition of a fine by the appellant, it (LASTMA) acted in a judicial capacity, which they are not imbued with under the constitution.
“The appellant constituted itself into a court with judicial or quasi-judicial powers, when in fact the law that created it did not donate such jurisdiction to it. By doing so, the appellant became a judge in its own cause, the complainant as well as the judge, contrary to the maxim ‘nemo judex in causa sua’. The court will not allow any authority to act ultra vires its power under the constitution.
“There is, therefore, a lacuna in that law creating the appellant. In view of the fact that the main crux of the respondent’s grievance bothers on the imposition of fine/penalty on it, I hold that there is no merit in this appeal whatsoever. I find the appeal as lacking in merit as same is hereby dismissed,” the court held.
The case commenced in March 2011, when Odutola dragged LASTMA to court for unlawfully impounding his car and slamming a fine on him. In the suit, he stated that while driving his car on the Third Mainland Bridge, it suddenly developed some mechanical problems.
According to him, to ensure that the car did not obstruct the free-flow of traffic, he immediately called a towing-van, which towed the vehicle completely out of the road. He said he also paid the towing-van operator some money for the service rendered.
Odutola stated that he also called his mechanics to come and rescue him and the vehicle, adding that as soon as the mechanics arrived, some policemen patrolling the bridge who, apparently wanted him to give them money refused them to work on the car.
When he insisted, Odutola and the mechanics were thoroughly harassed and beaten up. The policemen then called LASTMA officials at Sura, Lagos Island, who immediately came and towed his car to their office and consequently slammed him with a fine of N12,000 on him if he must get his car back.
When THISDAY spoke with Odutola, he narrated his ordeal in the hands of the men of the agency on the fateful day and noted that he went to court, because the arbitrariness of the officials of the agency was getting too much.
“We could have paid the N12,000 they demanded but how are we going to remain suffering. Somebody has to fight,” he stated.
In his judgment at the court of first instance in September 2011, Justice Abang declared that LASTMA lacked the power to impose fine on traffic offenders in the state.
He added that sections 9, 11, 12 and 13 of the law establishing LASTMA was unconstitutional and of no effect. The judge held that while the agency has the power to arrest traffic offenders, it does not have the powers to impose fine on them, adding that instead, it is a court of law that has such powers.
He submitted that the imposition of fine on any traffic offender by LASTMA amounted to being a judge in its own cause. He stated that the four sections of its law were contrary to Section 36 of the Constitution, which gives the right of fair hearing to every Nigerian.
“Sections 9, 11, 12, and 13 of the law establishing LASTMA are unconstitutional. They are against the spirit of the Section 36 of the Constitution, which gives right of fair hearing to every Nigerian. Moreover, that would amount to being a judge in your own cause,” the judge held.
Justice Abang consequently awarded the sum of N500,000 in favour of the applicant for unlawfully impounding his car and slamming a fine on him.
When the judgment was delivered in 2011, the Lagos State Government seriously faulted it. Then governor, Babatunde Fashola, had argued that road traffic was a municipal matter in which the state government has the residual authority to make legislation. He said there were provisions for either the payment of fine or the option of a trial in court in the agency’s law.
Fashola said: “All over the world, there is usually provision for either the summary payment of fine or the option of a trial, and this is what exists here. If you cannot go for a trial, you can say you want to pay a fine. That is the ambit in which we have been operating and those who insist on being taken to court, obviously are taken to court. Whether we like it or not, until a foreseeable future, LASTMA is a local solution to a unique traffic problem.”
Even though Fashola is a lawyer, a Senior Advocate of Nigeria (SAN) at that, his reaction showed that he did not understand the ruling unlike his then Commissioner for Information and Strategy Mr. Aderemi Ibirogba.
According to him, “The judgment does not pronounce the activities of LASTMA as illegal. What the judgment says is that LASTMA has the power to arrest and apprehend an offender, while the court has the power to impose fine. It is not an indictment on LASTMA. The judgment does not say LASTMA has no right to stay on the roads. The public has come to accept LASTMA as a responsible organisation.”
Another official, who did not understand the ruling was the then Attorney General and Commissioner for Justice in the state, Ade Ipaye, who while reacting to it, said: “We are filing an appeal immediately. Lagos State, federal government and other jurisdictions have laws that validly impose fines in the same way as the LASTMA law, so we are certainly not satisfied with the judgment.”
Investigation conducted by THISDAY revealed that a similar ruling was three years ago delivered against the Federal Road Safety Commission (FRSC) in Kaduna, when an applicant challenged the commission’s arbitrariness on imposition of fine.
Established in 2000 by former governor Bola Ahmed Tinubu, LASTMA came into existence as a child of ‘necessity.’ Operations of the agency were then applauded by a majority of residents that had experience recklessness by motorists on Lagos roads.
Before the debut of the traffic management agency, roads in Lagos had become ‘theatres’ of open display of indiscipline and callousness by commercial bus operators, who would parked indiscriminately on the roads and blocked other road users’ access, resulting in traffic jams. Not only were such drivers getting away with this illegal act, in some cases, they would physically assault whoever dared to challenge their action.
In recent time, Lagosians have had to seriously complain about the agency’s activities. These days, no week passes without complaints bordering on high handedness, extortion and brutality of motorists on Lagos roads by LASTMA officials, who have turned themselves into monsters, in the supposed ‘centre of excellence.’
At inception, a few things stood officers of LASTMA out. Among these were high-level discipline, and civility in dealing with motorists. Theirs was indeed a departure from the infamous norms the conventional police and traffic wardens had established.
For this, the traffic authority earned itself the admiration of the motoring public. However, the discipline and civility had been relegated to the background, so much that the motoring public now resents LASTMA, as “bad eggs” have infiltrated its ranks and file, rendering it a tool of oppression, intimidation and harassment.
While some analysts aligned themselves with the LASTMA “instant fine policy,” as a way of curbing the menace associated with the crimes on Lagos roads as obtained in most developed countries, particularly the United States, a Nigerian based in the country, Nicholas Ebos, faulted the claim.
Putting it in proper perspective, he said: “There is no such thing as an ‘instant fine’ in the US. When you are given a citation for traffic violation in the US, the citation is equivalent to being booked in a police station and released on your own recognisance.
“It is also a notice that a summons will be issued for you to appear in court to defend yourself against the traffic-violation charge. But a citation is never an instant fine.
“Only a court can impose a fine. It just so happens that traffic violations are minor misdemeanors for which most jurisdictions across the US have a set schedule of monetary fines. The fixed amount you see on the summons is there for judicial expediency. It is the equivalent of a plea bargain offer, but it is not an instant fine.
“After you’re given the citation, a summons to appear in court is sent to you by mail. That summons is the official charge of traffic violation, which has been recorded in court, and a date is set for you to defend yourself before the court. If you decide that your time in lost wages or productivity is worth a lot more than the court appearance will cost you, or you simply don’t want to be bothered with a court appearance, you pay the fine. This is what lawyers call intrinsic admission of guilt.
“By paying the fine and waiving your right to defend yourself in court, you are essentially pleading guilty as charged before a court and accepting the attendant punishment. But in most jurisdictions across the US, the guilty plea also earns you a detrimental notation on your driving record, which your auto insurance company will seize as an opportunity to increase your premium.”
With the latest judgment, there is need for the Lagos State House of Assembly to carefully review the controversial areas in the LASTMA law to make it friendly rather than draconian.