Legality of vehicles forfeiture under state traffic management laws 

Innocent Emeka, a Lagos-based movie producer, had his car seized by officials of the Lagos State Transport Management Authority (LASTMA), for driving past a BRT lane in a bid to enter an office in the Sabo area of Lagos. LASTMA officials impounded his vehicle for breaching the BRT corridor, but he claimed there was no signpost there.

“I didn’t struggle with them. I obeyed them, believing they would show understanding but they took the car away. I tried to explain to them that it wasn’t intentional but they refused. So, I followed them to their office. The next thing, they ticketed me.

“They started nudging me to go to court. I didn’t know much about the court process. So, I made inquiries and was told to avoid the mobile court, that I should just pay the fine, which is N70, 000. A woman told me that if I go to court, I would be frustrated and at the end, my car would be auctioned.

“Therefore, I quickly went to pay the fine and my car was released to me. I personally believe that it is abnormal to hide and wait to apprehend offenders when they could position themselves to direct people to the right route. You don’t set a trap, wait for your citizens to fall into it and you punish them. If you know Sabo very well, you will notice that the BRT of that corridor is not in regular use. Even if it is in regular use, you don’t just punish people like that. You have to find out if the fellow is a first-time offender. That is the normal thing. Instead they use their fellow citizens as their meal-tickets daily,” the frustrated Emeka lamented.

His story is synonymous with the everyday experience of many Lagos motorists, some of whose cars have been forfeited and auctioned in accordance with the traffic law of the state.

On account of this development, a Lagos lawyer, Mr. Lawal Aliyu, aggrieved by the fine imposed on him by LASTMA officials, sued the Agency, Lagos State Government and the state’s Attorney General at the State High Court.

Aliyu specifically filed the suit to challenge the N20, 000 fine imposed on him by LASTMA for an alleged traffic offence, and another N10, 000 towage fine, which he was forced to pay by the traffic enforcement agency.

In his decision, Justice Olalekan Oresanya held that it was unconstitutional for LASTMA to impose fines and tow vehicles of an alleged traffic offender without a valid court order. He also awarded damages of N750, 000 against LASTMA in favour of the plaintiff.

Justice Oresanya narrowed down the issues in the case to three and resolved all in favour of the plaintiff, relying on Sections 34, 36 and 41 of the 1999 Constitution (as altered), among others.

On the impoundment of his car, the judge held that there is no section of the Lagos State Traffic Management Law (2018) that permits the derogation of the applicant’s right to freedom of movement.

Regarding the fine and towing fee imposed on the plaintiff, the court said a careful perusal of Section 27 (1) b, c, d and e of Traffic Management Law relied upon by the respondents revealed that LASTMA cannot impose fine without arraigning an alleged traffic offender in court, adding that it amounted to ignoring fair hearing and being a judge in one’s case.

The court berated LASTMA for the practice of forcibly seizing vehicles of alleged traffic offenders, saying it is the height of oppression.

The court, therefore, held that the plaintiff was entitled to damages and compensation for the infringement on his fundamental rights.

But the Lagos State Government in a statement by the Ministry of Justice announced that it has on September 30, 2022 filed a Notice of Appeal against the decision.

The statement reads: “Lagos State Government on September 30, 2022 filed a Notice of Appeal containing four grounds of appeal against the judgment of Honourable Justice Olalekan Oresanya delivered on September, 22, 2022 wherein the Court held that LASTMA could not impose fines and tow vehicles without an order of Court of competent jurisdiction.

“The state government reviewed the judgment and dissatisfied with same, has exercised its constitutional right of appeal by filing a notice of appeal and an application for stay of execution of the judgment has also been filed.

“Consequently, members of the public are therefore advised to be law abiding and ensure compliance with relevant Laws of the State.”

Moyosore Onigbanjo (SAN)

However, when contacted by The Guardian, the spokesman for LASTMA, Mr. Adebayo Taofik, said the agency only enforces the Lagos State Transport Reform Law, 2018.

His words: “We only enforce the Lagos State Transport Reform Law, 2018. By virtue of that law, we only monitor and control traffic. In the course of monitoring and controlling traffic, we might have drivers that want to disobey the law, which is when the law enforcement comes in.

“Our primary responsibility is to monitor and control traffic, but enforcement comes in when you have stubborn drivers, who might want to do their wish on the road.”

According to him, the Agency issues tickets to traffic offenders when apprehended. “If you are apprehended for any traffic offence, we issue you a referral ticket. This referral ticket is what you will take to the Lagos State Mobile Court, where you will appear before a Magistrate. Then, it is the court that would now pronounce a fine for the offender to pay into the government coffers. The bank will issue you treasury receipt, which you bring back to our office so we can release your vehicle,” he explained.

On the powers of the Agency to impound vehicles, Taofik declared that by virtue of section 27 of the Lagos Transport Sector Reform Law, it is empowered to arrest and prosecute and traffic offender, including removing and impounding any vehicle.

“The only fact there is that we don’t impose fine, it is the court that imposes fine on the traffic offenders. What we do is that by the time you commit any traffic offence, we get you arrested and issue you a referral notice. That notice will contain the traffic offence you committed on it. That is the paper you take to the mobile court.

“We have mobile courts within the premises of the Agency. They sit on Tuesdays and Thursdays. So, its an instant judgment, its not a thing that takes long. The reason Lagos state government created the mobile court is to serve as a judge in between the Agency that apprehend and the offender because we cannot be a judge in our own case.

“At that level, we table our case with all the genuine evidence we gathered and you will also have the opportunity to defend yourself by presenting your own side of the story. You will then be cross-examined. If you are found guilty, definitely the court will convict you and impose a fine on you,” he stated.

Asked to explain why there is a stipulated amount of N70, 000 fine for any motorist apprehended for plying the BRT lane, if the discretion of fine resides with the court, Taofik declared that he is not aware of such fine.

According to him, only the courts determine what fine any offender pays on conviction, and not LASTMA officials. “It is not LASTMA that imposes any 70,000 or any amount. I am not aware of the 70,000 figures being stipulated. All I am aware of is that once you are apprehended, we charge you to court. By the time you get to the court, the magistrate fines you on conviction,” he insisted.

Reacting to the issues, former National Publicity Secretary of the Nigerian Bar Association (NBA), Kunle Edun, explained that all laws in Nigeria must derive their validity from the 1999 Constitution (as altered).

“The Supreme Court in the case of A.G. Abia v A.G.Fed (20020 6 NWLR (Pt.763) 264 held (per Kutiji, JSC) re-emphasised the supremacy of the Constitution when it held that ‘…the Constitution is the mirror upon which our actions or the actions of the National Assembly or any other public institution must be assessed. All actions must reflect the Constitution or else they will be considered as nullity. That being the case, we have to look and see if the said Constitution has made provisions on a particular subject-matter then, no other body can enlarge, alter and curtail the provisions of the Constitution.’

“Also, in the case of Ebiteh v Obiki (1992) 5 NWLR (Pt.243)599 @ 617, Ejiwunmi (JCA (as he then was) still on the issue of supremacy of the Constitution over every other law, held that ‘It is only necessary to restate the well accepted principle accorded to written Constitutions, such as our own Constitution of the Federal Republic of Nigeria, that those Constitution being the Supreme Law of the land stands above any other enactment, statutes or laws, and its provisions cannot be made subject to any other Act or enactment except by direct and clear provisions to the effect that the provisions of the Constitution of Nigeria 1979, shall not apply to the said Act or enactment,” he cited.

According to Edun, various state governments have passed several laws to regulate road traffic, with a view to ensuring safety on roads and also as a means of generating revenue for the State.

This, he said, is an acceptable practice all over the world.

However, the challenges over time, he pointed out, have been with the manner of enforcement of the said traffic laws in a way amounting to sheer disregard of the grundnorm, the provisions of the Constitution of Nigeria, particularly sections 34, 36(1) and 41 that have to do with respect for the dignity of every human being, fair hearing and freedom of movement; and section 6 of the Constitution that confers on the judiciary (both federal and State government), the exclusive power to interpret the laws and impose sentence, fines, penalty or any judgment on any defaulter, after affording the defaulter his constitutional right to fair hearing.

His words: “The clash between the agents or officials of the various State transport/traffic agencies and motorists has actually been as a result of the overzealousness of the traffic agencies in enforcing the traffic laws without regard to the guaranteed fundamental rights of traffic violators. The schedule to the Lagos State Road Sector Reform Law, 2015 prescribes various penalties for certain traffic offences, which include forfeiture of the vehicles involved. Acting pursuant to this purported power, LASTMA officials have been impounding vehicles of alleged traffic violators and putting them up for forfeiture.

“The news media are replete with numerous stories of LASTMA officials arresting vehicles which are immediately put up for forfeiture. Many questions have been asked by concerned members of the public regarding the transparency of the auction sales of the said vehicles and the integrity of the entire process. That is an issue for another day.
“V”

Edun

Edun noted that the Court of Appeal had decried the impunity of traffic agencies in a case now considered to be the locus classicus on the matter, where the claimant/respondent, also a lawyer, challenged the impunity of the Delta State Government and the Vehicle Inspection Officers in harassing private vehicle owners to produce roadworthiness certificate in respect of their vehicles.

“The Court of Appeal in the case of the Governor, Delta State & Ors v. Edun (2021) LPELR-53369 (CA) (Pp. 40 paras. B) Per Ekanem, J.C.A admonished the government in these words: ‘Before drawing the curtain on this judgment, I need to remind public bodies and public officers that a public body or public officer vested with statutory power must take care not to exceed or abuse its or his power. It or he must keep within the limits of the authority committed to it. This is to prevent arbitrariness and the rule of man rather than the rule of law. See Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (PT. 4) 572, 591.’

“The Court of Appeal had earlier made similar adverse comments against traffic agencies that have the penchant of always taking the laws into their hands all in a mad rush to generate revenue for the State. In the case of Alabi v. National Assembly & 2 Ors. (2015) All FWLR (Pt.803) pg. 1830 @1853, paras D-E) the Court of Appeal held that ‘section 6 of the Constitution undoubtedly vests judicial powers on the courts, established for the Federation and the States. Therefore, a legislation, such as the Federal Road Safety Commission (Establishment) Act, 2007 which purports to empower the 2nd defendant (FRSC) to impose fine, which is a component of sentencing, which in itself is a judicial action is inconsistent with section 6 of the 1999 Constitution (as altered).’

“See also F.R.S.C v. Gideon (2015) All FWLR (Pt. 803) 1778. The Court @ page 1852 defined fine vis-à-vis sentencing, that ‘A fine is a pecuniary criminal punishment or civil penalty payable to the public treasury. Sentence is the judgment that a court formally pronounces after finding a criminal defendant guilty, the punishment imposed on a criminal wrongdoer. Sentencing is the judicial determination of the penalty for a crime,” the lawyer explained.

Following from the decisions of the appellate court cited above, the Delta State High Court in a judgment delivered on February 17, 2023 in unreported suit No. W/48/2016: Chuks Christian Ofili v. Attorney General of Delta State, in similar fashion held that Delta State Government, the Attorney General of Delta State and the Delta State Traffic Management Authority lack the authority under the law to impose fine, penalties and/or sanctions on any person that violates any provision of the Delta State Traffic Management Authority Law.

The Court proceeded to strike down section 18(1) of the Delta State Traffic Management Authority Law 2013 on the ground of inconsistency with the provisions of section 6(2), 6(5)(a) and 272(1) of the 1999 Constitution.

Edun explained that Nigerians want to see traffic agencies adopt best practices in the enforcement of traffic regulations. He, therefore, suggested that the government must deploy technology in the enforcement of traffic laws and keep an updated and comprehensive register of all vehicles in each State.

Traffic offence, he argued, is not a criminal offence that a violator must suffer the toga of being a criminal or ex-convict. So, traffic agencies, according to him, must educate their officials on the issuance of tickets as being done in civilised climes, instead of arresting vehicles on the spot.

“It is the driver that commits the offence, not the vehicle. Then why arrest the vehicle, if it is not involved in an accident? Why order for its forfeiture? It is wrong and must stop,” he declared.

Joseph Ekwe, an Abuja-based human rights lawyer, argued that restraining LASTMA from impounding vehicles or imposing fines by the courts have helped to expand the fundamental rights of citizens.

Ekwe

“I foresee a time when judges in Nigeria will be ready to be persecuted for doing justice rather than dancing to the tune of the government and doing injustice. None of the Supreme Court Justices is less than 60 years old. A man or woman who has lived up to 60 years should not fear death.

The person has lived for a long time and should be ready to do justice and stand punished by the government if the need be,” he stated.

Ike Augustine, also a lawyer, said the judgment declaring as unconstitutional, the acts of LASTMA and other Agencies imposing fines and towing vehicles of an alleged traffic offender without a valid court order, is rooted in law, justice and preservation of rights of citizens.

“Chapter 4 of the 1999 Constitution of Nigeria (as altered) guarantees the fundamental rights of citizens, particularly right to property and fair hearing. It is gross abuse of power and impunity for a citizen’s property to be impounded without recourse judicial process,” he maintained, adding that the law is also well settled that expropriatory legislation, which seeks to deprive citizens of their property right, shall be construed strictly against the acquiring authority.

“The judgment is laudable and if enforced, will to a large extent, protect Lagosians from the activities of LASTMA in the course of discharging their statutory functions,” he stated.