Why the court of appeal restricted the FRSC to only federal roads (2)

Continued from last week

In line with the principles of true federalism, the Constitution of the Federal Republic of Nigeria 1999, as amended provided for functions and responsibilities that are within the legislative competence of both the National Assembly and the States’ Houses of Assemblies, to wit: Exclusive Legislative List and Concurrent Legislative List. By virtue of the provisions of item 63 of Part 1 of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria, 1999, as amended, the National Assembly is expressly authorized by the Constitution to make laws in respect of FEDERAL TRUNK ROADS.

It is therefore, ultra vires and in excess of the legislative competence of the National Assembly to purportedly expand or extend the jurisdiction of the FederalRoad Safety Commission to include roads that are clearly not federal trunk roads or highways and thereby, operating on every State, municipal, township, village and street roads. Certainly, that could not have been the intention of the legislature while enacting item 63 of the Exclusive Legislative List, as it amounts to an unconstitutional incursion into the exclusive domain of the States’ Houses of Assembly.

It is also trite that matters that are in the Concurrent Legislative List are within the competence of both the National Assembly and States’ Houses of Assembly to legislate thereon. However, any matter that is not expressly mentioned in both the Exclusive and Concurrent Lists falls within the residual functions of the States’ Houses of Assembly and exclusive competence to make laws on. Section 4(2) of CFRN provides that “The National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution”

Tobi, JSC continuing in the A.G. Abia ‘s case (supra) @ 1330 paras 38-42, held that

“Section 4(5) which provides for the doctrine of covering the field can only apply in a situation where the National Assembly exercises its law making power under section 4(2) of the Constitution. It will not apply in a situation where the National Assembly encroaches on the law making power of the House of Assembly of a State under section 4(7) of the Constitution.”Nowhere in the Concurrent List is traffic control and managementmentioned, which therefore, puts it as an item under the RESIDUAL FUNCTIONS of Houses of Assembly of the States, the power to make laws regarding traffic on any road other than federal trunk roads. Therefore, the provisions of the Federal Road Safety Commission Act, 2007(particularly section 30 thereof that defines “public road”) and its subsidiary legislation, the provisions of section 118 of the National Road Traffic Regulations, 2004 (which defines “highway”) to the extent that public roads and highways are defined to include all roads in States and Local governments are unconstitutional in the face of the clear provisions of sections 1(3), Section 4(7) and item 63 of Part 1 of the 2ndSchedule to the Constitution of the Federal Republic of Nigeria, 1999, forbidding incursion by the National Assembly into the exclusive constitutional law-making powers of the States’ Houses of Assembly.

To be continued next week

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