Roadworthiness is a two-way traffic: healthy vehicles on safer roads. But when state agencies abandon the latter in feisty pursuit of roadworthy breaches among private owners, and to the point of a blanket forfeiture penalty, they run foul of rights guaranteed by the constitution, AMEH OCHOJILA reports.
For years now, the Federal Road Safety Corps (FRSC), state traffic management agencies, such as the Lagos State Traffic Management Authority (LASTMA), and Vehicle Inspection Officers (VIOs) often cite enabling statutes and regulations, including the National Road Traffic Regulations 2012 and state-level traffic laws as the legal basis for impounding citizens’ vehicles.
Although these laws allow traffic enforcement officers to stop and inspect vehicles, and in some cases, impound them for substantial non-compliance with minimum roadworthiness standards, the laws by themselves are subsidiary to the 1999 constitution (as altered), which provides in Section 36 that everyone charged with any offence should be allowed to be heard.
On the other hand, critics argue that while these laws provide a legal framework for traffic management, they do not give the authorities carte blanche to infringe on constitutionally protected rights of citizens in the guise of ensuring public safety, especially since the 1999 Constitution (as altered) is clear on the protection of individual rights.
According to them, the mere existence of statutory authority is not, in itself, a safeguard against abuse, particularly where enforcement is done without proper checks or opportunities for redress. Those who hold this opinion emphasise that such practices must always be subject to constitutional scrutiny, especially when they interfere with fundamental rights such as property ownership, freedom of movement, and access to justice.
The mere presence of statutory authority does not shield such actions from constitutional scrutiny, particularly where enforcement disproportionately infringes on citizens’ fundamental rights, they argued. The right to own private property, as enshrined in Section 44 of the 1999 Constitution, is a fundamental and inviolable provision. Therefore, the FRSC cannot deprive any citizen of their property without a valid court order for forfeiture or confiscation—typically in cases where the property is linked to the proceeds of crime or in the enforcement of a judgment of a court of competent jurisdiction.
Without a doubt, impounding a vehicle constitutes a deprivation of property. Under Section 44 of the 1999 Constitution, such deprivation must be in accordance with a law that provides for compensation and for reasons of public interest. Yet, in practice, vehicles are often seized without proper documentation, due process, or timely redress. This violates the spirit, if not the letter, of Section 44.
For legal practitioners, impoundment without allowing the vehicle owner to contest the infraction in a competent tribunal violates the principle of fair hearing. Often, decisions to impound are made arbitrarily on the roadside by officers who serve as accusers, judges, and enforcers, thereby undermining the rule of law.
Arguably, seizing a person’s vehicle—often their only means of mobility (at that point in time) and even means of survival (in the case of transporters) impedes their constitutional right to freedom of movement and threatens their right to life. Though these rights are not absolute, any limitation must be justifiable in a democratic society. Arbitrary or excessive impoundment fails this test.
The roadworthiness of vehicles is undoubtedly important, but the proportionality of the penalty must be assessed. Seizing a vehicle for minor or fixable defects without offering the owner an opportunity to rectify the problem within a reasonable time may be excessive and punitive. It further entrenches a regime of extortion and harassment under the guise of enforcement, especially in urban centres, where traffic officers act with impunity.
More so, the absence of a transparent, independent, and accessible grievance redress mechanism renders the system open to abuse. Traffic rules enforcement in many Nigerian states has become a cash cow, where enforcement officers exploit vague roadworthiness standards to justify impoundments and extort money. This undermines public trust and trivialises genuine safety concerns.
Ironically, the roads upon which the vehicles are being confiscated for not being worthy are in themselves unmotorable. A greater percentage of Nigerian roads, be they highways or city streets, are dilapidated. They are the greatest nightmare for motorists and form part of the reason for the high rate of bad vehicle suspensions and incessant breakdowns on roads.
While relevant government authorities that are saddled with the responsibility of fixing roads look the other way without consequences, poor citizens, who are forced to ply these roads, are burdened with various taxes in the guise of vehicle maintenance enforcement and roadworthiness certification. Who enforces roadworthiness and maintenance in Nigeria? It is high time Nigerians looked into this seemingly intractable malaise and nipped it in the bud.
As it seems, the Nigerian apex court has not yet delivered a decisive judgment specifically outlawing impoundment over roadworthiness, although judicial sentiments at the lower courts are increasingly leaning toward protecting constitutional rights. In cases involving illegal detention, unlawful searches, and abuse of enforcement powers, courts have consistently emphasised that statutory authority does not trump constitutional safeguards.
The Chief Judge of the Federal High Court, Abuja, Justice John Tsoho, had in a judgement declared specific sections of the FRSC (Establishment Act) 2007, along with Regulation 143 of the Nigerian Roads Traffic Regulation, 2011, as null and void due to their inconsistency with constitutional provisions.
He emphasised that while the FRSC is empowered to arrest and fine traffic offenders, the act of imposing fines, particularly through arrest, crosses into the realm of criminal punishment, which is a judicial function.
The judge’s stance underscores the fact that sentencing and imposing fines, and even impounding, are judicial actions that necessitate judicial intervention.
However, despite the previous legal challenges and rulings questioning the FRSC’s authority to impose fines and impound vehicles without judicial oversight, the Court of Appeal, Calabar Division, thinks differently hence its decision to uphold FRSC’s powers in a specific case involving Mr. Michael Benson, a lawyer from Uyo, Akwa Ibom State. Mr Benson was arrested by FRSC operatives in 2017 for violating his driver’s license, vehicle license, and tyre regulations during a patrol in Akwa Ibom State. His vehicle, a Toyota saloon car, was impounded, and he was fined by the FRSC.
Upon challenging FRSC’s authority and seeking enforcement of his fundamental human rights, Mr. Benson took the matter to the Akwa Ibom State High Court. However, the trial Judge, Aniekan Akpan, dismissed his application, affirming FRSC’s constitutional powers to impound vehicles and impose fines on erring motorists. Unsatisfied with the lower court’s decision, Mr. Benson appealed to the Court of Appeal, hoping to overturn the ruling. A three-man panel, consisting of justices R. C. Agbo, M. B. Barka, and B.B. Aliyu, upheld the Akwa Ibom High Court’s decision in favour of the FRSC.
Justice Aliyu, reading the judgment on behalf of the panel, emphasised the FRSC’s statutory powers to arrest and prosecute within legal frameworks and enforce penalties. The Court of Appeal deemed the appeal grossly incompetent and affirmed FRSC’s authority in the matter.
However, in reality, enforcement officers often act as roadside judges, summarily determining a vehicle’s lack of roadworthiness and seizing it on the spot. This extrajudicial approach, according to lawyers, is both unlawful and unethical. They explained that even when the public interest is invoked as a justification, constitutional protections must not be bypassed. It is noted that in most cases of vehicle impoundment in Nigeria, no compensation is offered, and the legal basis is often flimsy or non-existent.
For a Senior Advocate of Nigeria, Jerry Aondo, the right to own private property under Section 44 of the constitution is a fundamental and literal provision that the government cannot extinguish from a citizen without an order of the court for forfeiture or confiscation, where such is traced to a proceeding of crimes, and or enforcement of judgment court.
He argued that arbitrary shows of power and garrulous pronouncements by law enforcement agencies to confiscate cars are unlawful and amount to an act of self-help in a constitutional democracy, adding that they also violate the fundamental principles guaranteed under the 1999 constitution (as altered).
“The arbitrary show of power and garrulous pronouncements by enforcement agencies to justify vehicle confiscations are acts of self-help. Such actions have no place in a constitutional democracy governed by the rule of law,” he reiterated.
For another lawyer, Ephraim Akamihe, impounding vehicles without a court order is inconsistent with the constitutional guarantee of due process and a fair hearing. According to him, the courts have, in a plethora of cases, ruled against such recklessness and lawlessness, wondering why law enforcement agencies still do it.
He stated that impounding someone’s vehicle without a court order makes the operative carrying out the exercise both the accuser and the judge because such an action constitutes a punishment for a purported offence, which has not been adjudicated before an unbiased arbiter.
He explained that one of the principles of fair hearing is that you cannot be a judge in your own cause. But those law enforcement officers, he said, knowingly or unknowingly make themselves judges in such matters, and our courts have consistently frowned at such conduct. He advised that to avoid falling foul of the law, law enforcement bodies should first obtain an interim order of seizure from the court if they must impound vehicles.
“This is usually the procedure adopted by the EFCC while investigating a suspect on corruption allegations. Within the interim order, they can confiscate some of the property of the suspect and along the way, get an absolute order, where the suspect doesn’t provide enough evidence to disprove the fact that the seized items are proceeds of corruption.”
Another lawyer, Monday Ikpe, noted that while laws provide the legal framework for traffic management, they do not confer unchecked powers to trample on constitutionally guaranteed rights. Ikpe emphasised that the existence of statutory authority does not automatically shield enforcement practices from abuse, especially when such enforcement lacks transparency, accountability, or avenues for redress.
The lawyer, in his opinion, argued that all enforcement actions must pass the test of constitutional scrutiny, particularly when they affect fundamental rights like property ownership, freedom of movement, and access to justice.
