It is impossible for any corporation or agency that owes its existence to a statute, to have been in existence before the law creating such body was enacted (2)
ON MONDAY THE 7th DAY OF JULY, 2015
BEFORE THEIR LORDSHIPS
Samuel Chukwudumebi Oseji Justice, Court Of Appeal
Abimbola Osaruge Obaseki Adeejumo Justice, Court Of Appeal
Jamilu Yammama Tukur Justice, Court Of Appeal
Appeal No: Ca/L/817/2007
Lagos State Trafic Managemet Authority
Commissioner For Transportation
The Attorney General Of Lagos State
Johnson O. Esezobo
JUDGMENT DELIVERED BY ABIMBOLA OSARUGE OBASEKI –
HE submitted that where a body ‘not known to law, a total stranger’ is sued along with its ‘creator’, the Chief Law Officer, the suit cannot be said not to be properly constituted especially as Appellants have not denied setting up the 1st Appellant and/ or operating through it at the relevant time.
It has been stated over and over again so much more that it has time of firmly established beyond any dint of controversy right from the time of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 that jurisdiction is the life and blood of every adjudicatory process. A court must be properly seized of the matter before it, otherwise any proceeding conducted thereon shall be deemed a nullity.
In the instant appeal, it is the argument of Learned Counsel on behalf of the Appellants that the lower was not competent to assume jurisdiction in respect of the suit as instituted by the Plaintiff/Respondent, in view of the fact of the non-existence of the 1st Appellant either as a corporate body or statutory corporation at the time of the institution of the suit 3rd October 2003. I noted from the Respondent’s response to the argument of the Appellants’ counsel that the Respondent not only failed to proffer any argument in contradiction to the Appellants’ argument; rather, he impliedly conceded to the argument.
It is not dispute that the 1st Appellant is a statutory body set up by the Lagos State Government, what is to determined is whether at the time of commencement of the suit leading to this appeal, its existence was recognized under the law. The Law that established the 1st Appellant is the Lagos State Traffic Management Authority Law (LASTMA LAW) establishing the 1st Appellant. As at that time, the 1st Appellant was apparently non-existent and incapable of being sued.
The legal personality of a statutory corporation (Like the 1st Appellant) is conferred on it expressly or impliedly by the statute creating same. The statute confers on the body the essential attributes of a juristic person. Where an action is brought against a body and such body is not a juristic person at the time of the institution of the action, such a body is not a competent party. Naming such an incompetent/non- juristic person as a party is not a missioner, that is, the use of the wrong name of a juristic person, which could be amended to substitute a juristic person. See NIGERIA NURSES ASSOCIATION & ANOR vs. A-G FEDERATION (1981) 11-12 SC (REPRINT) 1; ALHAJI NURUDEEN AKINOLA LAWAL vs. NEPA (1976) 3 SC (REPRINT) 116. As a general rule, a Plaintiff commencing an action and the person to be made defendant to the action must be juristic persons or natural persons existing at the time action was commenced otherwise the action will be incompetent and the court will lack the jurisdiction to entertain the matter. See OKECHUKWU & SONS vs. NDAH (1976) NMLR 368.
Suing a non-juristic party renders whatever proceeding conducted thereon a nullity. The 1st Appellant owes it birth and life to the LASTMA LAW which has not yet been enacted or commenced as at the time the cause of action in this suit arose and as at the time the Respondent commenced the suit against the Appellants. To this extent, I am of the firm view that since the 1st Appellant was legally non-existent as at the time the action was commenced against it, the proceedings and judgment given against it by the lower court was a nullity. To this extent, the 1st Appellant’s name is struck out.
Now, the question that arise is: “whether the suit as instituted by the Respondent is still competent notwithstanding the striking out of the 1st Appellant for being a no-juristic person?” it is apparent that 1st Appellant, through not juristic person at the time of the commencement of the suit, was ipso facto a body set up by the Lagos State Government for the management of traffic in Lagos.
Even though, as earlier stated, the authority was legally no-existent, its factual existence is undisputed. The 4th Appellant has not denied the fact that the Lagos State Traffic Management Authority was not a body set up by the Lagos Government under the Ministry of Transport headed by 3rd Appellant. As evidence from the grounds upon which the Respondent sought reliefs from the lower court, at Page 8 of the records, the 2nd Appellant joined as a party to the suit as a result of the fact that he was “ an officer of the (1st Appellant) through whom the (Appellants) unlawfully arrested the (Respondent) and illegally impound (his vehicle)”. More so, the 2nd Appellant, Mr. Giwa, was the apprehending officer as indicated on the face of the fine ticket issued to the Respondent. He was nonetheless sued in his own name. he is no doubt a legal personality.
More so, the 3rd Appellant, the Commissioner for Transport was appointed pursuant to Section 192 of the 1999 Constitution by the Governor of Lagos State.
On his own, the 4th Appellant is a creation of the Constitution and has legal personality. His appointment is made pursuant Section 192 of the Constitution by the State. He is the Chief Law Officer of the Government of the State. In that capacity, he can sue and be sued in such matters affecting the State or its servant. See the dictum of TOBI JSC in A.G ANAMBRA STATE vs. A.G FEDERATION (2007) 12 NWLR (PT. 1047) 1; (2007) LPELR-603 (SC); EZOMO vs. A.G OF BENDEL STATE (1986) NWLR (PT. 36) 448; A.G KANO STATE vs. A.G FEDERATION (2007) 6 NWLR (PT. 1029) 164.
In any claim or suit against the Government of a State, the proper defendant is the Attorney-General of the state. It is also a legal personality. It is therefore undisputed that the claim of the Respondent is against the State Government for acts allegedly done by its servants which a body (taskforce of or committee) is set up by it. The 2nd to 3rd Appellants were made parties to the suit by virtue of their official capacity as officers acting on behalf of the State Government.
From the foregoing, it is clear that notwithstanding the striking out of the 1st Appellant as a non-juristic person, the action survives as against the 2nd, 3rd and 4th Appellant.
Therefore, issue 1 is resolved partly in favour of the Respondent.
ISSUES TWO AND THREE
Appellants’ counsel submitted that the Respondent’s right to immovable property was never as issue at the lower court so that the lower court’s finding and consequent decision on same is uniformed and ought to be set aside. He contended that the arrest and detention of the Respondent’s car and eventual issuance of notification of fines do not constitute violation of the Respondent’s right to fair hearing under Section 36 of the Constitution. He relied on Section 36(2)(b)of the Constitution and Section 18 and 19 of the Central Licensing Authority Law Cap C8, Laws of Lagos State 2003 as well as Section 17 of the Road Traffic Law Cap R10 Laws of Lagos State 2003 to submit that the steps taken by the Appellants are statutorily recognized preceding the eventual criminal prosecution in the law court. Counsel submitted that the steps taken by the Respondent are in conformity with the provisions of Section 44(2)(f) and (k) of the Constitution and that the failure of the trial judge erred to have held to the contrary. He also submitted that the failure of the trial judge to dismiss the suit for failure of the Respondent to ensure compliance with the laws of the State regulating traffic amounts to grave miscarriage of justice. He cited BAYERO vs. CRUSADER INSURANCE CORPORATION (1998) 6 NWLR (PT. 553) 213 at 226, PER IGE JCA.
He further submitted that the Respondent has liberty to waive his right to a court trial by paying the fines as stipulated in the fine ticket because it is only after default of payment of the fine as notified that a charge can be preferred against the offender in the court, but that the commencement of the instant proceedings had prevented the criminal prosecution of the Respondent.