By Dr. Muiz Banire, SAN
Few weeks ago, Nigerians woke up to the strange announcement by the Permanent Secretary of the Federal Ministry of Transportation that, henceforth, vehicle owners are to renew their vehicle ownership certificates yearly upon the payment of a thousand naira.
This news came as a shock to Nigerians generally, and has been strongly condemned by individuals and organizations like the Nigerian Bar Association.
To any discerning Nigerian, this is certainly an aberration not just because of the sum being charged but also due to the effect on the constitutional structure of the country.
Nigeria is constitutionally a federal state with powers/responsibilities shared among the constituent units. Although in most federal countries power is often shared between the central body and the constituents, unlike in Nigeria where our constitution recognizes three tiers of government, inclusive of the local government councils.
I am not unaware of the contention in some quarters that the local government cannot be said to be a federating unit so as to constitute a tier, I certainly do not share the position.
I say this because federalism does not have a universal connotation and, as rightly opined by the Supreme Court of Nigeria in various decisions, federalism is a function of constitutional dictates in terms of conception.
This implies that federalism, in the context of Nigeria, is what the Nigerian Constitution says it is.
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This controversy is, however, not the focus of this engagement. Be that as it may, the fact remains that in the last three decades and up till date Nigeria has witnessed agitations around the issue of federalism.
Among the main agitators happened to be the President of Nigeria, President Bola Ahmed Tinubu, who only did not agitate the issue through advocacy but through the mechanism of law courts.
There is no doubt that the agitation has not ceased as there are still several lingering issues arising on a daily basis that are yet to be addressed and resolved.
It is in the midst of this controversy and tensions that the issue of annual renewal of vehicle ownership certificate or registration was introduced by the federal government, traceable to the Federal Road Safety Commission (FRSC or the Commission).
To a lot of Nigerians, the policy scheme is not only meaningless but exploitative.
As uproar greeted the policy, the federal government had sought to rationalize the introduction of the policy on the bid to enhance the safety of vehicles.
This is the submission attributed to the FRSC. As a concerned person, I join other Nigerians in condemning this irrational policy.
Beyond the fact that same is unconstitutional, the point, which I shall return to later, it smacks of any rationality.
Globally, registration of vehicle ownership is done once except there is a change of ownership and transfer of title.
In that wise, the subsequent registration is meant to update the data base and provide any future desired answers to queries on the vehicle.
This is the means of assuring the integrity of the data base. Now, in the absence of change of ownership and subsequent need for transfer of the certificate, on what premise will the original owner be renewing ownership in the absence of transfer?
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Furthermore, if there is any threat at all to the integrity of the data base and the endangering of vehicle’s information and safety, it is the introduced experimental scheme that will be the harbinger.
This point is best appreciated where not all vehicle registration renewal is done, as customary and characteristic of Nigerians.
Would the unrenewed registration/certificate constitute expired documentation or not, while the vehicles are still in operation? This is the confusion to expect in the implementation and operation of the scheme.
Now, coming to the legality of the policy, it must be recalled that Nigeria operates on a Constitution which specifies the responsibilities of each level of the government.
By the Nigerian Constitution, the federal government can only deal with matters listed in the Exclusive Legislative List while sharing responsibilities with the states in matters listed in the concurrent part.
The implication of this is that any item of responsibility outside the said lists, the federal government cannot and must not, in any form or shape, deal with such item.
A scrutiny of both the Exclusive and the Concurrent Legislative lists will reveal that the registration of motor vehicles is not a matter listed in either list in the Nigerian Constitution.
The import of this is that the federal government or any of its agencies cannot deal with the subject matter.
I am not oblivious of the provision of Section 5 (h) of the Federal Road Safety Act, which empowers the Commission to make regulations relating to registration, licensing, road worthiness of vehicles, driver’s license, etc., but the reality is that the section, just like a host of others in the said Act, is unconstitutional.
Since the legislative lists that conferred powers on the National Assembly failed to provide for such issues, the assumed enactment of the Act by the National Assembly and the deeming of same as an Act of the National Assembly is null and void.
The maxim is nemo dat quod non habet, you cannot give what you don’t have.
The National Assembly, and by extension, the federal government, lacks the legislative competence to enact the provision or gazette any regulation on the matter, respectively.
Consequently, the federal government is incapable of enacting any policy on the subject. To this extent, therefore, the purported regulation by the FRSC and the Joint Tax Board is unconstitutional, null and void.
I am struggling as much as possible not to bore you with any legalism. In the course of interrogating the subject, I stumbled on a piece of information that the states are collaborators in this misadventure by way of what appeared to be delegated power.
The FRSC, in purported exercise of powers under the National Traffic Regulations, got the Joint Tax Board to partner with the Commission in the execution of this conspiratorial policy.
The regulation, which purportedly came into effect in 2012, was amended in the year 2016.
As remarked above, the said regulation is unconstitutional as the federal government or any of the agencies cannot pass such regulation.
The mere fact that the Joint Tax Board approved the regulation is inconsequential. Where did the board derive the power to be approving regulation?
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This is a subject for another time and for the court, to which the issue will be ultimately submitted to be determined.
From all available information, it was based on the purported approval on the 9th of May, 2023, by the Joint Tax Board that the policy was rolled out.
The question is: where did the conspirators/collaborators derive the power to command the implementation of this kind of obnoxious policy, particularly in the face of the constitutional provision on legislative competence?
Let me remind the apostles of the policy that no Act/Law, much less a regulation, can contravene the express provision of the Constitution.
Once such an enactment or subsidiary instrument is found to be inconsistent with any provision of the Constitution, it is liable to be declared null and void to the extent of its inconsistency.
That the alleged provision of the FRSC Act, on the strength of which the Commission and the Joint Tax Board acted is unconstitutional, is glaring from the explanation above.
I also learnt from the grapevine that the states are already promised and apportioned 50% of the accruable revenue from the illegal enterprise, while the Commission gets 25% and the consultant and other undefined stakeholders get 25%.
This is the carrot dangled in the face of the states and upon which the states fell. Anyway, whether they fall for it or not, Nigerians still have a say in their affairs by ensuring that they challenge the policy.
Let me go a bit further to agitate the point that even such constitutionally vested power in the states cannot be delegated to a third party.
This is a constitutional principle aptly captured by learned authors, Hood Phillips & Jackson: Constitutional And Administrative Law, 8th Edition (International Student Edition), Sweet & Maxwell, 2001, @ page 671, when the learned authors stated as follows: “sub-delegation is only lawful if expressly or impliedly authorized by the enabling act, for the prima facie principle is delegates non potest delegare…..
The requirement of authorization applies throughout the hierarchy of rules, as thus the doctrine of ultra vires below the enabling act itself”.
What this connotes is that since there is no provision in the Constitution of Nigeria that permits such delegation of responsibility, the States are incapable of embarking on such delegation to the Commission or any other third party.
Of similar import was the remarks by B. U. Eka in the Book, Judicial Control of Administrative Process in Nigeria, 2001, Obafemi Awolowo University Press Ltd at page 121, quoting and relying on the thesis of Professor John Willis in ‘Delagatus Non Potest Delegare’ (1943) 21 Can B.R. 257 @259.
The import of the foregoing is that the State Governments themselves lack the capacity to concede such powers to the Commission or any other third party.
To this extent, the yearly renewal policy lacks the legitimacy to function.
Thus, Nigerians are not under any obligation to observe the policy, more so when the effect is not conferring any benefit on Nigerians but imposing additional burden.
I am glad that the Nigerian Bar Association is already challenging the policy.
Beyond this effort, I pray that Mr. President promptly intervenes before this opaque policy further chokes Nigerians and endanger our wellbeing and safety of our vehicles.
Mr. President needs to maintain his consistent posture on federalism and devolution of powers particularly.
It is not always that the country will have a Bola Tinubu as President and as such, this dangerous precedent must not be allowed to be laid.
In fact, by way of recap, Mr. President must recall that this item is one of those fought against under his administration as Governor of Lagos state and which consequently led to the establishment of the Lagos State Number Plates Authority amongst others.
If anything, Mr. President needs to ensure that other items on the residual list hijacked by the Federal government need to be restored to the States.
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A good example is the regulation and production of driver’s license as well as the training of drivers.
Beyond licensing, is the control of traffic on the highways and other intra-state roads.
These are matters that demand immediate attention. Should a national data base of motor vehicle registration be required, there are other relevant agencies capable of hosting such data base administratively.
I recently read about the suspension of the implementation of certain taxes and tariffs by Mr. President for strategic reasons.
This policy under discussion demands more than suspension but abolition as it is simply illegal and unenforceable. It must not see the light of the day.
It is nothing more than job for the boys and the oppression of the people. The policy simply does not make sense.
