CORAM
PARTIES
BARRISTER BUSARI MUSE OLOOKANDR. KAYODE OWOLABI APPELLANTS
42341803937000FEDERAL ROAD SAFETY COMMISSION (FRSC) & ORS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This is an appeal against the decision of the Federal High Court, dismissing the Plaintiff/Appellant’s claim. It was alleged that the 1st Appellant committed a traffic offence and fine was imposed on him which he opted to pay. The Appellant’s claim for breach of his right to fair hearing failed as the trial court held that the1st Appellant having paid the said fine had waived his right under the law and cannot complain of denial of fair hearing in the way and manner he was arrested, detained, and his vehicle impounded by the 1st Respondent’s agents.
The Appellants, being aggrieved with the Judgment of the lower Court has by an amended Notice of Appeal, lodged the instant appeal contending that the payment of fine cannot amount to a waiver of his right to fair hearing as the 1st Appellant does not have the capacity to waive a right donated by the Constitution which cannot be taken away by any other Statute or even the Court; and that fair hearing must involve fair trial in the whole hearing.
HELD
Appeal Dismissed
ISSUES
Whether the 1st Appellant, by the payment of the fines imposed in the Notice of Offence – Exhibit B1 by the Respondent has admitted guilt of the traffic offences for which he was charged and consequently waived his right to fair hearing through a Court trial? Whether the issues of payment of fine and waiver were not contained in pleadings of parties and whether same was raised suo moto by the learned trial judge Whether the judgment of the trial court that payment of fine voluntarily is an acceptance that the payee has committed a traffic offence is not absurd, contradictory, perverse and a complete miscarriage of justice having regards to the initial findings of the trial judge that the 1st Plaintiff/Appellant was not over speeding. Whether the reliefs sought by the Plaintiffs/Appellants in the Statement of Claim are dependent on each other such that the denial of one by the court will automatically translate to the denial of the other.
RATIONES DECIDENDI
WAIVER- CONCEPT OF WAIVER
“In Fasade Vs. Babalola & Anor [2003] 11 NWLR (Pt. 830) 26; (2003) LPELR-1243 (SC) Pg. 21, Paras. B – F, the Supreme Court per UWAIFO, JSC held that:
“The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights, to put it in another way, he is estopped from raising the issue.”
Similarly, in NBC Vs. Ubani (2013) LPELR-21902 (SC) Pg. 22, Paras. E – G, the Supreme Court of Nigeria per CHUKWUMA-ENEH, JSC held that the concept of waiver can be equated to: “…simply failing to take advantage of a right very obvious to a party where it is clear that there is no other reasonable presumption in explanation of the party’s steps so far taken in the proceedings before the court (as in this case) than that the right is let go – he has acquiesced in his right putting it naively.
The learned Jurist had earlier stated at Pg. 15, Para. C that:
“It is settled law that as in the instance that the consequence of waiver defeats the issue of non-compliance.” See also Ifesinachi Industries Nig. Ltd & Anor Vs. Vinee Oil Ltd (2015) LPELR-25130 (CA) Pg. 26, Paras. B – D; Enwerem Vs. Abubakar & Anor (2016) LPELR-40369 (CA) Pg. 23-34, Paras. E – F and Osokoya Vs. Onigemo (2017) LPELR-42730 (CA) Pg. 52-55, Paras. E – B.”
PROOF – NEED FOR A PLAINTIFF TO SUCCEED ON THE STRENGTH OF THEIR OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE
“I must also state that the law is very well settled that parties such as the Appellants/Plaintiffs must succeed on the strength of their own case and not on the weakness of the Defendant’s case. See Nwobodo Vs. Onoh & Ors [1984] All NLR 1; (1984) LPELR-2120 (SC) Pg. 44, Paras. C – D; Chukwueke Vs. Okoronkwo [1999] 1 NWLR (Pt. 587) 410; (1999) LPELR-857 (SC) Pg. 22, Paras. D – F; CPC Vs. INEC & ORS (2011) LPELR-3999 (CA) Pg. 27, Paras. C – C and PDP Vs. Ekeagbara & Ors (2016) LPELR-40849 (CA) Pg. 42-43, Paras. C – B.”
JUDGMENT- JUDGMENT MUST BE RESTRICTED TO ISSUES FORMULATED BY PARTIES IN THEIR PLEADINGS
“The law is trite that a judgment must be confined to issues which constitute direct product of the pleadings of the parties. See Odogwu & Anor Vs. Nwajei & Ors (2013) LPELR-21030 (CA) Pg. 23-24, Paras. G – E, where this Court re-echoed that:
“Pleadings” are a summary of facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence the courts have also consistently held to the effect that the basic purposes or functions of “pleadings” is to avoid springing surprises on the other party; accordingly, parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given to be in respect of a non-issue, and liable to be struck out or discountenanced by the Court… In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the court and parties are to adduce evidence in relation thereto only.”
See also the decision of the Supreme Court of Nigeria in Aminu & Ors Vs. Hassan & Ors (2014) LPELR-22008 (SC) Pg. 47-48, Paras. G – C where PETER-ODILI JSC held that:
“…none of the parties is allowed to raise at the trial of a suit, an issue of fact which has not been pleaded by him. Therefore, where such facts are not pleaded, they are in law inadmissible in evidence and where inadvertently or wrongly admitted go to no issue and should be disregarded as irrelevant to issues properly raised by the pleadings…”
See: also Daylop Vs. Madalla (2017) LPELR-43349 (SC) Pg. 15, Paras. A – E and Akinbade & Anor Vs. Babatunde & Ors (2017) LPELR-1243 (SC) Pg. 19-20, Paras. F – B”.
ISSUE OF WAIVER – DUTY ON COURT TO LOOK AT THE EVIDENCE AND MAKE INFERENCE THEREFROM
“Therefore, I am of the view that the learned trial Judge cannot be said to have raised the issue of waiver and payment of fine suo moto; and the Appellants were not ambushed as the Notice of Offence was in fact pleaded by them and the Court was at liberty to look at the evidence and make inference therefrom. See Oguntolu Vs. State [1987] 1 NWLR (Pt. 50); (1986) LPELR-20601 (CA) Pg. 18, Para. A; Okesoto Vs. Total Nig. Plc (2010) LPELR-4716 (CA) Pg. 11-12, Paras. D – A and Abuja Investment & Property Development Co. Ltd. Vs. Paul & Ors (2018) LPELR-45827 (CA) Pg. 54-58, Paras. B – D”.
PROLIFERATION OF ISSUES FOR DETERMINATION – ATTITUDE OF THE APPELLATE COURT ON PROLIFERATION OF ISSUES FOR DETERMINATION
“Such, undoubtedly amounts to a proliferation of issues; this Court does not condone or encourage proliferation of issues. This position bears the support of a plethora of existing judicial authorities such as the Supreme Court decision in Nwankwo Vs. Yar’adua [2010] 12 NWLR (Pt. 1209) Pg. 518; (2010) LPELR-2109 (SC) Pg. 35, Paras. A – C where OGBUAGU JSC held that:
“…there are more issues formulated for determination than the number of the said grounds of Appeal. That this amounts to proliferation of issues which is not allowed by this Court. I agree. The fact of proliferation of issues has been deprecated by two Appellate Courts in a number of decided authorities.”
See: also Bille Vs. State (2016) LPELR-40832 (SC) Pg. 7, Paras. B – C; Union Bank Vs. Salaudeen (2017) LPELR-43415 (CA) Pg. 6-7, Paras. F – F and Ajisegiri & Ors Vs. Salami & Ors (2016) LPELR-40567 (CA) Pg. 6, Paras. B – F where this Court held that: “It is also trite that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. This is the principle against the proliferation of issues for determination by parties…”
ISSUES FOR DETERMINATION – POWER OF THE COURT TO ADOPT, MODIFY OR REFRAME ISSUES FORMULATED FOR DETERMINATION BY THE PARTIES
“Let me state at this point that the trial Court may elect to use or adopt the issues as formulated by either of the parties, as done by the learned trial Judge in the instant case; however such issues elected by the trial Judge must be such that will adequately encapsulate all the issues raised by the parties and aid the Court in the just and fair determination of all the issues before it. See: Okere Vs. State (2016) LPELR-26057 (SC) Pg. 30-31, Paras. E – A where the Supreme Court per PETER-ODILI, JSC held that: “Again, to be highlighted is the fact that a respondent has the right to formulate issues and the Court is at liberty to choose either those identified by the appellant or those framed by the respondent or re-organized by the Court to simplify its journey in the consideration of the appeal.” See also Ekweghiariri Vs. Unachukwu & Ors (2013) LPELR-22074 (CA) Pg. 20-21, Paras. F – A; Alliance International Ltd Vs. Kolo International Enterprises Ltd (2010) LPELR-3749 (CA) Pg. 14-15, Paras. F – D where this Court held that:
“It is settled position of the law, that a Court has the power to adopt, modify or reframe the issues formulated for determination by the parties. The guiding principle is that issues formulated must lead to a proper determination of the dispute or grievance between the parties… In the course of reframing issues, a trial court should be careful not to make out a case for a party, different from the party’s case…”
PROOF – NEED FOR A PARTY TO SUCCEED ON THE STRENGTH OF ITS CASE
“That notwithstanding, I have stated earlier in this judgment the trite position of the law that a party must succeed on the strength of his case and not on the weakness of the case of the opponent. See: Nwobodo Vs. Onoh & Ors (Supra); Chukwueke Vs. Okoronkwo (Supra); CPC Vs. INEC & Ors (Supra) and PDP Vs. Ekeagbara & Ors (Supra)”.
FACTS – FACTS PLEADED MUST BE PROVED
“The law is settled that facts pleaded must be proved by credible evidence; and that the burden of proof lies on the party who alleges.”
PROOF – DUTY ON A PLAINTIFF TO PROVE THEIR ALLEGATIONS
“Even if the Respondents did not deny the allegations at all, which is not the case in the instant case; and although the Respondents failed to tender the video of the incidence which they pleaded, the Appellants still had the duty to proof their allegations. See the case of Mr. Wilson Esi Vs. CNPC/BGP International & Anor (2014) LPELR-22807 (CA) Pg. 19, Paras. A – F where this Court clearly stated as follows:
“… Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities. Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally…
In this case, since none of the Respondents’ witnesses denied what occurred, the Appellants need only adduce minimal evidence which must be accepted by this court…”
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended).|Federal Road Safety Commission (Establishment Act) 2007|