RE: The Federal Road Safety Commission Lack Legal Power to Criminally Punish Traffic Offenders. By E.F AGHEDO

This rejoinder is aim at enlightening members of the public on this issue of Public interest so as to dispel the negative impression being created by the circulation of the decision of the Federal High Court in TOPE ALABI VS FRSC (Unreported) suit No: FHC/L/CS/123/2013.

In the dissecting of the law, the learned counsel considered the powers of the federal Road Safety Commission (FRSC) on Punishment of traffic offences in view of some provisions of the Federal Road Safety Commission (Establishment) ACT, 2007 (Hereinafter referred to as FRSC ACT), the Constitution of the Federal Republic of Nigeria (CFRN), 1999(As amended) and the decision of the Federal High Court . He formulated one issue for determination to wit:

1. Whether FRSC has power to prosecute, convict and punish Offenders.
He acknowledged the fact that by virtue of section 10 (4) of the FRSC ACT, FRSC have power to arrest and prosecute persons reasonably suspected of having committed any traffic offence and serve such person with notice of Offence sheet. However, in disagreeing with this position of the law he contradicted himself when he cited sections 10(7)-(9 (of FRSC ACT and admitted that the proper authority to adjudicate on such offences is the Magistrate Court. Unknown to the learned counsel, FRSC has never and is not in denial or unmindful of one of it statutory power of prosecution of all the Offences in the FRSC ACT.

Sub (7) and (9) of FRSC ACT states thus:
“A person suspected of having committed an offence under this Act may be prosecuted in any Magistrates Court in the Federal Capital Territory, Abuja or the State within which the Offence is committed”
“The Court convicting an offender may impose a term of imprisonment not exceeding six months in lieu of any penalties provided for in the second schedule to this Act”

He opined that FRSC in exercising it power, the power be must exercised in such cases CIVIL IN NATURE but not criminal. In other words he is of the view that FRSC Lacks power to try traffic Offenders and punish Offenders. He further submitted wrongly that section 28(1) of FRSC ACT empowers the FRSC to impose punishment of fine is inconsistent with the CFRN,1999 (As amended) and thus a nullity. That section 36(2) of CFRN, 1999 only allows an administrative body like FRSC to adjudicate on matters arising from or affecting civil rights and obligations and not criminal. He said that FRSC not being a Court of Law cannot impose fine as it lacks power to conduct criminal trials. Citing the case of SOFEKUN V AKINYEMI(1980) 5-7 SC and OCEAN STEAM NAVIGATOR CO V STRANACHAN, 214, US, 320(1909) he further submitted that administrative body (FRSC is one) lacks power to adjudicate on criminal Offences and prescribe punishment for such Offences.

The learned Counsel prefers the Federal High Court decision in the case between TOPE ALABI VS FRSC (Unreported) suit No: FHC/L/CS/123/2013 where Justice Tsoho held that FRSC not being a Court lacks power to impose fines under the guise of issuance of notice of offence and that such power to impose fines amounts to usurpation of powers of the Court. Propounding what appears to him as what ought to be the correct position of the law, the learned counsel is of the firm view that an offender should be charged to Court instead of issuing notice of offence. To him, the practice whereby FRSC issues notice of offence sheet, retains documents and impound vehicles amounts to imposition of fines.

With due respect to the learned Counsel the decision in TOPE ALABI’s case is not the current position of the law in respect of the validity or otherwise:

1. Whether FRSC has the power to arrest, detain, impound, prosecute or issue notice of offence when a person commits any traffic Offences or any of the Offences mentioned in second schedule to the Federal Road Safety Commission (Establishment) Act, 2007.
In the case between BREN WILLIAMS NIG.LTD & ANOR V FRSC (Unreported) FHC/L/CS/436/09, where the Plaintiff challenged the Powers of FRSC to arrest, issue notice of offence sheet and impound vehicles, the same Justice Tsoho held that FRSC ACT did not contradict, and was not inconsistent with the provisions of the CFRN, 1999(As amended). The Court further held that the agents (FRSC Operatives) in the Course of discharging their duties as spelt out in FRSC ACT could not be said to have acted unconstitutionally. In another case between EZRA NWERE V FRSC & 1 ANOR(Unreported) FCT/HC/CV/230/2014 where the Plaintiff challenged the lawful powers of FRSC to arrest any person reasonably suspected of having committed a traffic Offence, the same Court held that it cannot stop any Official, whether Public or private from carrying out it functions. Similarly in another case again between JOSHUA ORONTO V FRSC (Unreported) FHC/AK/CS/66/2014 where the plaintiff sought to enforce his fundamental right seeking a declaration that the impoundment of his vehicle and issuing of Notice of Offence sheet without recourse to Court was unlawful, the same Court dismissed him stating that he waived his right to be prosecuted after he had paid the prescribed fine for the Offence which FRSC issued him notice of offence sheet.

. The Court of Appeal in recent decisions or Judgment have affirm the enforcements powers of FRSC and the sanctity of the Notice of offence sheet as mere notice to the suspected Offender which does not derogate from the powers of the Court. In FRSC V GIDEON OKEBU: CA/IL/50/2014 where the operational Jurisdiction of FRSC was challenged, the Court held that the Notice of Offence sheet was not made as a preliminary step to prosecution rather by its provisions/contents the suspected offender is advised to pay the fine prescribed by the law for the offence he committed or face a criminal charge. In another Court of Appeal case between ANTHONY ESEKHAIGBE V FRSC (2015) NWLR PT 1474 at 415-611 particularly page 520, the Court held that FRSC had powers to impound any vehicle by which an offence, under the FRSC ACT, was reasonably suspected to have been committed. Similarly, in MOSES EDIRU V FRSC(2016) 4 NWLR PT 1502 at 209-410 where he challenged the powers of FRSC to issue him Notice of Offence sheet for seat belt violation and use of phone while driving, the Court held that since he has paid the statutorily prescribed fines, he cannot turn around to accuse FRSC of acting ultra vires its powers and usurping the powers of the Court. The issuance of Notice of offence ticket by FRSC was not conclusive of imposition of fines and that at best it was a mere notification to either pay the fines or face prosecution. FRSC’s power of enforcement was not usurpation of the powers of the Court. FRSC’s issuance of Notice of Offence sheet to suspected road traffic Offenders did not constitute imposition of fines.

Under the Doctrine of stare decisis, lower Courts are bound by the decision or Judgment of higher Courts. The operational Jurisdiction of FRSC is within the precincts of the law for the safety of all road users and in the overall national interest.

BALA SARKI ZANG, Esq
Jalingo Based Legal Practitioner.
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