Case: Are they (the defendants) liable for their actions or did they act ultra-vires in carrying out their duties by towing and confiscating Mrs Balogun’s (the plaintiff) car?
This case is a peculiar one and as such, is of interest to Nairametrics research considering the fact that a lot motorists in Nigeria fall prey to security agencies who tow away their vehicles for wrong packing even though their agency may not be one saddled with such responsibility.
This particular case gave birth to a garnishee proceeding before another judge. A garnishee proceeding is a judicial process instituted to enforce monetary judgements.
Mrs Balogun(the plaintiff) in this case, became the judgment creditor, the defendants (Mr Prince Akanmode, the State Security Service and the Director-General of the SSS) became the judgement debtors, and the central bank of Nigeria (CBN), the garnishee.
We will explore the garnishee proceeding in the coming weeks but right now, let’s get to how it all started!
Financial damages sought
General damages in the sum of N5,000, 000.00 (Five million Naira) for pains, psychological trauma, unlawful seizure and deprivation of the use of the car.
63,000 being the cost of hiring commercial taxi for 21 working days
Payment of N1,850,000,00 being replacement cost of the said vehicle.
On July 19, 2014, Mrs A.M Balogun took her child who was ill to Diff. Hospital located at Udi Hill close to Aso drive in Abuja for medical treatment. She couldn’t park inside the hospital premises as there was no space therein.
She found a space by a house which was a public pathway but was warned by the security guard to move her car. She asked to see the person on whose order he was acting and waited awhile. The person who happens to be the 1st defendant, did not come out, she then went on to the hospital because her son needed to see his doctor.
Upon her return, she found her tyres deflated and she left to get a vulcaniser to fix the tyres. oOn her return, the car had been towed away from the position she had parked it. She immediately headed to Asokoro Police Station to report the incident to the police.
A police officer was assigned to the matter who inquired from the gateman about the missing car and was told that his boss had invited officers of the SSS to tow the car away. However, he made several attempts to recover the car from the SSS but to no avail.
Mrs Balogun averred that she was invited to the office of the SSS where she was intimidated and psychologically tortured and still wasn’t given the car. She also averred that she had to hire a public taxi and spent the sum of 126,000 (One hundred and twenty six thousand naira) in the space of 21 days.
According to Mrs Balogun, the unjustifiable seizure of her car by the defendants was a clear manifestation of bias, abuse of office, an act of impunity and arrogation of powers on the part of the 2nd and 3rd defendants.
Consequently, she instituted this matter on September 8, 2014, through her lawyer Adekola Mustapha Esq. against the owner of the house she parked by, Mr Prince Olushola Akanmode, the State Security Service and the director-general of the State Security Service.
The first defendant is the occupier of the house where the vehicle was towed away from. The second defendant is the SSS, one of the national security agencies established pursuant to the National Security Act and The third defendant heads the second defendant.
Lawyer to SSS and the DG claimed the car was towed away for inspection and safekeeping because it was left unattended. He told the court that it is Trite law that a party who seeks equity must come with clean hands.
They claimed Mrs Balogun carried out illegality by wrongfully abandoning her vehicle at a public place knowing that such an act was wrong and breeds consequences. The lawyer said that Mrs Balogun in her statement of claim and during cross-examination admitted that she was aware that where she had parked was a public place and that she was also aware of the presidential directive that says that cars parked/left unattended should be towed away to a safe place considering the security situation at that time.
The lawyer asked the court to note that when an act is founded in illegality, a party cannot seek redress in court. He said Mrs Balogun cannot be allowed to benefit from her own wrong.
He submitted that the SSS, an agency of the federal government established by the National Security Agency CAP N74 Laws of the Federation of Nigeria 2004 is one of the three agencies charged with the following:
Prevention and detection within Nigeria of any crime against the internal security of Nigeria.
The protection and preservation of non-military classified matters concerning the internal security of Nigeria.
Such other responsibilities affecting internal security within Nigeria as the case may be, deem necessary.
The lawyer then submitted that by the above-stated powers and the Presidential directive mentioned earlier, they did not act ultra-vires in carrying out their duties. He urged the court to dismiss the suit in favour of his clients (the 2nd and 3rd defendants) as Mrs Balogun who admitted to wrongful parking, contributed to her occasional injury.
When the defendants were served, the second and third defendants counsel, filed a statement of defence on October 7, 2015, but did not file a statement on oath.
The first defendant (Mr Akanmode) on the other hand never appeared or defended himself in court.
After several adjournments were made and attempts to settle out of court did not yield fruit, the matter was fixed for definite hearing on March 3, 2016.
The lawyer to SSS and its DG told the court that the presidential directive states that cars parked/left unattended should be towed away to a safe place for security purposes.
Mrs Balogun’s lawyer argued that she cannot be said to have abandoned or left her car unattended because she had interacted with the gateman before entering the hospital.
The 2nd and 3rd defendants lawyer told the court that, assuming without conceding, they are guilty of the infraction complained by Mrs Balogun, she has contributed to the infraction as she admitted to wrong parking.
In response, Mrs Balogun’s lawyer submitted that assuming without conceding, his client’s action contravened written law, the right thing to do in that circumstances was to charge her to court for contravening the law as the defendants cannot be the judge in their own case.
He also argued that assuming the plaintiff parked in the wrong place, the body responsible for towing vehicles wrongfully parked, is the Vehicle Inspection Office (VIO) and not the Department of the State Security Services.
He said the presidential directive mentioned by the defence counsel was not tendered in court and even if it existed, cannot supersede the constitutional rights of Nigerian citizens.
What the judge ruled
After listening to parties and perusing the pleadings and exhibits filed, Hon. Justice A.F.A Ademola among other considerations identified the following:
He said the court agrees with the submissions of Mrs Balogun’s Lawyer that the defendants in the suit are liable for their actions as they acted ultra-vires their power as granted to them by the law.
He also said the defendants’ lawyer failed to show the court that they were acting within their powers.
He, therefore, held that the presidential directive referred to by the defendants which they relied on to carry out their acts was not pleaded. “The defendants have already failed to discharge the onus, pursuant to section 13 of the Evidence Act 2011.” The judge said.
Justice Ademola held that the defendants claim that the car was towed for safekeeping was “untenable” as the car was towed, inspected and nothing was found but not returned to the owner of the car.
He said the 2nd and 3rd defendants filed a sham defence with no statement on oath as required by the rules of the court. The judge then resolved issues 1 and 2 in favour of Mrs Balogun.
He said the defendants were liable for their actions having acted ultra-vires its powers in a most reckless and negligent manner. He said they had no defence to such actions and the plaintiff was entitled to all the relief sought in her statement of claim.
Justice Ademola awarded N5 million against the defendants for the pain and psychological trauma, unlawful seizure and deprivation of the use of her car.
He also made an order for the payment of the sum of N1,850,000.00 being replacement cost of the vehicle with a 50,000 extra cost.
The N63,000 sought by Mrs Balogun was also granted being the cost of hiring a commercial taxi for 21 working days.
“This is a clear case of unjustifiable seizure of plaintiff’s car. It is a clear manifestation of bias, abuse of office, impunity, arrogance and bigotry as exhibited by the 2nd and 3rd defendants and organised by the 1st defendants,” the judge ruled.