IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON TUESDAY, THE 10TH DAY OF JANUARY, 2023
BEFORE THEIR LORDSHIPS:
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ADEBUKUNOLA ADEOTI BANJOKO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/770/2018
BETWEEN:
MR. IMONIKHE MURTALA -------------------------------------- APPELLANT
AND
1.DIRECTOR GENERAL, STATE SECURITY SERVICE
2.DIRECTOR, STATE SECURITY SERVICE, LAGOS STATE
3.COMPTROLLER GENERAL, NIGERIA CUSTOMS SERVICE RESPONDENTS
4.AREA COMPTROLLER, NIGERIA CUSTOMS SERVICE
FEDERAL OPERATIONS UNIT, IKEJA, LAGOS STATE
5.ATTORNEY GENERAL OF FEDERATION
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
The Appellant is a transporter and owner of Mack Truck with Registration number BDG 265 XG with his business address at No 1 Creek Road, Apapa, Lagos. On 21/01/2017, the Appellant’s aforesaid Truck conveyed a 40 feet container batched inside the Apapa port premises to the Trade Fair Complex, Alaba, Ojo, Lagos. The Agent to the container owner was one Onyema. The truck was intercepted along the Apapa-Oshodi Expressway, and the truck, the driver and container were arrested by men of the 3rd and 4th Respondents, on suspicion of carrying prohibited goods. Upon examination of the container at the warehouse of the 3rd and 4th Respondents, it was found to be loaded with, among other things, 661 pieces of new Automatic Pump Action Rifles concealed with other items. Later, the 3rd and 4th Respondents handed over the truck and the container to the 1st and 2nd Respondents, in view of the security implication of the contents of the container. The Appellants’ efforts to retrieve his seized Mack Truck, as he was not charged with any criminal offence after the conclusion of investigation by both the Nigerian Customs Service and the State Security Service, met a brick wall. He therefore resorted to the court to enforce his fundamental right through a Fundamental Right proceeding which he initiated against the Respondents at the Federal High Court, Lagos (the lower court). The Appellant sought, before that court, the following reliefs:
Parties joined issues by filing counter affidavits, further affidavits as well as preliminary objection. In a considered judgment delivered on 16/03/2018, the Federal High Court, Coram: A.O. Faji, J., held under the preliminary objection that the 3rd and 4th Respondents are not juristic persons. On the merits of the application, the lower court dismissed the Appellant’s action, holding that the seizure of the truck was lawful.
Peeved by the decision of the lower court, the Appellant appealed to this court, vide a Notice of Appeal predicated on seven grounds, dated and filed on 27/04/2018. The Record of Appeal was transmitted within time on 07/06/2018. Appellant’s Brief of Argument, settled by I.L. Mgbolu Esq., was filed on 03/07/2018. The 1st and 2nd Respondents’ Brief of Argument, settled by P. Okerinmodun with M. Bajela, was filed on 01/02/2019, while the Brief of the 3rd and 4th Respondents, settled by S.A. Yakubu (Mrs.), was filed on 29/10/2018. The Briefs of the two set of Respondents were both deemed as properly filed and served on 0703/2019.
Learned counsel formulated three issues for determination in the Appellant’s Brief of Argument, to wit:
The 1st and 2nd Respondents nominated a sole issue for the determination of the court, as follows:
“Whether the trial court was right in holding that Mack Truck BDG 264 XG is connected inextricably to Charge FHC/L/190C/17 upon which six (6) Defendants are on trial for the illegal importation of fire arms.”
On her part, learned counsel for the 3rd and 4th Respondents, adopted the three issues formulated by the Appellant.
The appeal was argued on 17/10/2022, with I.L. Mgbolu, Esq adopting the Appellant’s Brief and urging the court to allow the appeal. M.O. Bajela adopted the Brief of the 1st and 2nd Respondents, while David Ereh adopted the Brief of the 3rd and 4th Respondents. Both counsel for the two set of Respondents urged the court to dismiss the appeal.
Argument
Issue 1
Learned counsel for the appellant noted that the charge filed at the Federal High Court (Exhibit C) with respect to the offences relating to the container, did not allege that the Appellant or his truck have committed any offence(s). He submitted that in view of the provisions of section 373 (1) (a) of the Administration of Criminal Justice Act, 2015, which provides that an Information shall contain a description of the offence in respect of which a defendant is charged, and the provision of section 44 (1) of the Constitution which prohibits compulsory acquisition of moveable property except in the manner and for the purposes described by law, any offence alleged to have been committed by a citizen or his property must be clearly spelt out in a written charge before his property right may be curtailed. Counsel submitted that the lower court was wrong in relying on Exhibit C to hold that the said Exhibit contains evidence of culpability of the Appellant’s truck in a crime, when the said Exhibit C did not contain any indictment of the commission of offence by the Appellant or his truck. Counsel contended that the lower court was wrong when in its judgment it held at page 114 of the Record as follows: “Even if the truck is not an exhibit or stated to be so, in my view, it is connected inextricably to charge FHC/L/190C/17 and cannot be released in any manner, not even on bond, until the court determines the charge in FHC/L/190C/17.”
Arguing the sole issue formulated in the 1st and 2nd Respondents’ Brief, learned counsel for the 1st and 2nd Respondents submitted, with reference to sections 3 (6), 1 (14) (a) (i) and 1 (2) (c) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation of Nigeria, 2004, under which the charge was filed, that there is no dispute that the Appellant’s truck was used in conveying the illegal weapons out of the port, and therefore shall be forfeited to the Federal Government. On the issue of seizure of the truck, counsel for the 1st and 2nd Respondents further referred to section 169 (a) of the Customs and Excise Management Act and section 44 (2) (a), (b), (k) of the Constitution of the Federal Republic of Nigeria, 1999 to submit that the holding of the truck pending the determination of the ongoing trial was proper. The court was urged to dismiss the appeal.
For the 3rd and 4th Respondents, counsel argued that it was under section 169 of the Customs and Excise Management Act that the Appellant’s truck was transferred to the State Security Service for further investigation and prosecution and that the 3rd and 4th Respondents have not commenced forfeiture proceeding because of the pending criminal charge in which the truck is an exhibit. Learned counsel submitted that the continues seizure of the Appellant’s truck is necessitated by the fact that it was an exhibit in the congoing criminal trial of the illegal importers of the weapons.
Issue 2
It was submitted for the Appellant that it is only a properly constituted court or tribunal that can adjudged a property forfeited and that notwithstanding the provision of section 44 (2) (k) of the Constitution, any abridgement of a fundamental right must be in accordance with the law. Counsel argued that the Respondents ought not to have been justified in holding the Appellant’s truck permanently without charging the Appellant or obtaining a court order in respect of the truck in compliance with section 337 (1) of the Administration of Criminal Justice Act, relying on Dangaba vs. Federal Republic of Nigeria (2014) 12 NWLR (Pt.1422) Ratio 13. It was the contention of counsel that there ought to have been a pending case against the Appellant or his truck and that the truck ought to have been held by an order of court, for there to be any justification for the continued seizure of the truck for over a year as at the time of the judgment of the court below. Learned counsel faulted the conclusion of the trial Judge at pages 113 - 114 of the Record and submitted that before the truck would be forfeited, the procedure in the 3rd Schedule of the Customs and Excise Management Act must be followed, and in the instant case has not been followed by the 3rd and 4th Respondents.
On her part, counsel to the 3rd and 4th Respondents submitted that the Appellant’s truck was detained for constituting a threat to National security after it was searched and found to be conveying 661 Pump Action Rifles. She argued that the continued detention of the truck is in accordance with the law.
Issue 3
Appellant’s counsel submitted on this issue that in the light of Order 1 Rule 2, Order V Rules 5, 6 & 8 of the Fundamental Rights (Enforcement Procedure) Rules, clearly recognized bodies like the 3rd and 4th Respondents qualifies as juristic persons, just as “Prison Superintendent” “Police Officer”, or “Other Public Officials” qualify as persons that can be served with court orders and processes. The court was urged to take judicial notice of the practice of courts in fundamental rights cases, which has been to countenance the propriety of similar entities as legal persons, citing Amos Akila & Ors vs. (1) Director General, SSS (2) State Director, SSS, Borno State & 2 Ors (2014) 2 NWLR (Pt.1392) CA; Onagoruwa vs. IGP & Ors (1991) 5 NWLR (Pt.195) 593. He urged the court to hold that the finding of the lower court that the 3rd and 4th Respondents are not juristic persons, is erroneous.
On this issue, it was argued on behalf of the 3rd and 4th Respondents that the 3rd and 4th Respondents are not competent parties in the proceeding as they are neither juristic nor natural persons and therefore not known to law, relying on Abubakar vs. Yar’adua (2008) 36 NSCQR 231 @ 364-365. Learned counsel submitted that by the combined provisions of sections 1, 3 and 6 of the Nigeria Customs Service Board Act, CAP N100, Laws of the Federation, 2004, the juristic or legal personality that can sue and be sued in matters relating to Customs and Excise is the Nigeria Customs Service Board, rendering the 3rd and 4th Respondents non-juristic persons. The court was urged to so hold.
Resolution of Issues
In the course of reviewing the arguments of the Appellant and the 3rd and 4th Respondents, i found that issue 2 formulated by the Appellant is not only tied to issue 1 but is an extension of Issue 1, proliferated as two issues. I will therefore treat the two issues together, while issue 3 would be resolved separately.
Issues 1 and 2
Under these Issues, the contention of the Appellant is that the continued seizure of the Appellant’s truck by the Respondents when neither the Appellant nor the truck was indicted for any criminal offence, constitute a breach of the Appellant’s right to own moveable property and that the lower court was wrong when it held that: “Even if the truck is not an exhibit or stated to be so, in my view, it is connected inextricably to charge FHC/L/190C/2017 and cannot be released in any manner, not even on bond, until the court determines the charge FHC/L/190C/2017.”
Under section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), it is provided:
"No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law…"
It is on the basis of the above provision that the Appellant contended that the seizure of his truck by the Respondents was a violation of his right to property; and also the decision of the lower Court that his right to own a property under the law was not breached was erroneous. It should be noted that the property right provided and guaranteed under the above provision is not absolute or sacrosanct, as it is indeed the case with all the fundamental rights provided under Chapter IV of the Constitution. Subsection 2 of section 44 of the Constitution provides a list of exceptions when the property of a citizen would be seized or compulsorily acquired temporarily or permanently as may be permitted by any other law in force. One of such exceptions can be found in section 44 (2) (k), which permits the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. Here, the Appellant’s truck with Registration No. BDG 265 XG was intercepted by officers of the Federal Operations Unit of the Nigeria Customs Service on 21st January, 2017, while conveying a 40 feet container from Apapa port to the Trade fair complex, Alaba, Ojo, Lagos, on suspicion of carrying contraband goods. The arrest of the truck by officers of the 3rd and 4th Respondents was in exercise of their powers under section 8 of the Customs and Excise Management (Amendment) Act, 2003, which provides:
“For the purpose of carrying out or enforcing the provisions of the customs and excise laws, all officers shall have the same powers, authorities and priviledges as are given by law to police officers.”
Upon taking the truck to its warehouse and searching same, 661 unit of Pump Action Rifles were found concealed with other goods. After its investigation, the Nigeria Customs Service transferred the truck and the container to the State Security Service for further investigation and prosecution. It was the failure of the Appellant’s effort to get the truck released to him that led to the filing of an application before the lower court for the enforcement of his right to moveable property. Even before the filing of the application at the lower court, six (6) persons were being prosecuted at the Federal High Court on a 9-count Information in connection with the importation of prohibited firearms, uttering of forged documents and corruptly giving bribe to a public official. The Information, filed on 14/06/2017 can be found at pages 25 - 29 of the Record of Appeal. The right to own property is guaranteed by the Constitution and it is the duty of the court to ensure that any interference with property right by governmental bodies is done in compliance with due process of law. The Appellant alleged illegal seizure of his truck by the Respondents. The Respondents, on the other hand, contended that the truck was detained to serve as exhibit in the criminal trial and that it is also liable to forfeiture by virtue of section 1 (14) of the Miscellaneous Offences Act and section 169 of the Customs and Excise Management Act, Laws of the Federation of Nigeria, 2004. The issue of forfeiture is out of the question as the laid down procedure for it is yet to be followed by the Respondents. In any case, only a court of competent jurisdiction can make an order for forfeiture, not through the whims and caprices of the Respondents.
Appellant faulted the detention of his truck as no offence was alleged against him and the truck. I have gone through the 9-count Information proffered against the six persons named therein. At page 30 of the Record of Appeal is the proof of evidence that accompanied the Information, wherein three witnesses were listed as follows:
Under the list of exhibits at page 33 of the Record of Appeal, the truck was not listed and that lacuna was the trump card of the Appellant’s counsel in this appeal. However, also not listed in the list of exhibits are the container, the 661 Pump Action Rifles, the other items in the container as well as the sums of money offered as bribe by one of the defendants in the criminal case. The mere fact that all these items are not listed in the proof of evidence does not mean that they cannot be tendered in evidence if in the course of trial, the prosecution deems them relevant. That the prosecution can tender the truck, the container, the prohibited firearms and the bribe money in evidence, notwithstanding that they have not been listed under the Exhibits to be tendered is covered by the omnibus statement under witness No. 3 at page 30 of the Record, thus: “Any other witness(es) and evidence as the prosecution may deem fit in the circumstances.” (Underlining for emphasis). This shows that the prosecution has the latitude to adduce further evidence in addition to the one contained in the proof of evidence provided that the defendants are put on notice before hand. It is not the law in criminal trial, that the prosecution must stick to the initial proof of evidence frontloaded along with the Information, without the liberty to amend and serve the amended proof of evidence on the defendants. There is no dispute that the Appellant’s truck was used in the transportation of 661 prohibited firearms found in the container conveyed by the truck. The truck forms part of the objects or instruments used in the commission of offences. In other words, the truck was used not only to transport the prohibited firearms but also in their concealment. The submission of counsel to the Appellant that since investigation into the cases has been concluded and the truck or its owner were not charged for committing any offence, then it is unlawful for the Respondents to continue with the detention of the truck and erroneous for the lower court to justify the detention, overlooks the overall importance of the truck and the container it conveyed to the success of the criminal prosecution of the six defendants in Charge No. FHC/L/190C/17. That submission also overlooks the security implication on this country of the importation of 661 prohibited firearms and their concealment and transportation by the Appellant’s truck. Whether or not the Respondents listed the truck in the list of evidence accompanying the criminal charge is immaterial, because there is no way the truck can be divorced from the ongoing criminal prosecution, being one of the instruments used in the commission of the offence. There is no law that mandates investigative and prosecutorial agencies, like the Customs Service, the Police and the State Security Service to obtain an order of court before holding onto the instrument used in the commission of an offence pending the prosecution of the alleged offenders. This is a question of fact, not technical legalism. The question of an infringement of the fundamental right of an individual is a question of fact and fact alone, it does not depend on the submission of counsel on the law, no matter how brilliant and impressive the submission might be. See Okafor vs. Lagos State Government (2016) LPELR-41066 (CA); Adegoke Motors vs. Adesanya (1989) N5 SC 92. From the facts of this case as disclosed in the opposing affidavits of parties before the lower court, the Appellant’s truck was arrested by a law enforcement agency on suspicion of an offence. It would have been practically impossible for the Respondents to release the truck to the Appellant while the criminal case was still pending without the order of the court seised of the criminal charge. The law is settled that an arrest made by law enforcement agents in the legitimate exercise of their duty and on grounds of reasonable suspicion of commission of an offence, as it happened in the instant case on appeal, cannot constitute a breach of fundamental right. See Emonena & Anor vs. IGP (2016) LPELR-41489 (CA). I therefore endorse the finding of the lower court to the effect that the truck is inextricably connected to the criminal charge and cannot be released while the criminal case was ongoing. Accordingly, Issues 1 and 2 are resolved against the Appellant.
Issue 3
The Appellant’s grouse on Issue 3 relates to the striking out of the 3rd and 4th Respondents by the lower court on the ground that they are non-juristic persons. The 3rd Respondent is the Comptroller General, Nigeria Customs Service while the 4th Respondent is the Area Comptroller, Nigeria Customs Service, Federal Operations Unit, Ikeja, Lagos State. The Appellant maintained that in the light of the provisions made under the Fundamental Rights (Enforcement Procedure) Rules, particularly Order 5 Rules 5, 6 and 8, the 3rd and 4th Respondents are juristic persons capable of being sued in their official titles. He argued that under the FREP Rules, Prison Superintendent, Police Officer and Other Public Official qualify as persons that court processes can be addressed and served upon, not to talk of clearly recognized body as the 3rd and 4th Respondents. I will return to this submission anon.
The law is settled that only persons known to law, be they natural or artificial, are capable of initiating and defending actions in courts of law. In other words, only persons with requisite juristic personality can activate the jurisdiction of the court to determine the rights of the respective persons before it, who must all be clothed with juristic personality. It follows that no action can be brought by or against any party other than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity. Where it is found that either of the parties before the court is not a legal person, such an action will be incompetent and liable to be struck out. See Socio-Political Research Development vs. Ministry of Federal Capital Territory (2018) LPELR-45708 (SC); Ostankino Shipping Co. Ltd vs. The Owners of the MT Bata 1 & Ors (2021) LPELR-58308 (SC); Calabar Municipal Government & Ors vs. Honesty & Ors (2021) LPELR-58391. In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC) @ 137-138, the Supreme Court, per Niki Tobi, JSC, summarized the concept of juristic personality, other than natural persons, thus:
“Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name. He has no choice to sue or be sued in any other name. In other words, juristic or legal personality is a creation of statute and a party which seeks relief must comply strictly with the enabling statute. The position of the law is as stringent and as strict as that.”
The 3rd and 4th Respondents are offices in the Nigeria Customs Service. Whether or not they are juristic persons would be determined by taking an excursion into the statutes that created the Nigeria Customs Service. This has become necessary because the juristic personality of Government Ministries, Departments and Agencies are conferred by the Constitution or the Statutes that created them. While individuals manning those Ministries, Departments and Agencies and staff occupying positions therein, are in themselves legal persons, the office or rank they occupy may be a juristic person or not, depending on the provisions of the statute that created the office or rank. Before embarking on that tour, however, I consider it imperative to revert to the submission of the Appellant’s counsel with respect to the recognition of “Prison Superintendent”, “Police Officer” and “other public official” as persons under the Fundamental Rights (Enforcement Procedure) Rules. Order 5 of the FREP Rules, 2009, deals with service of court process. The heading and marginal note of that Order states so. Therefore, reference to “Prison Superintendent”, “Police Officer” and “Other Public Official” in Order 5 Rules 5 & 6 is with respect to service of court processes on them on behalf of their officers or Organisations. Such reference has nothing to do with legal personality as it is not within the purview of the FREP Rules to confer juristic personality on persons, entities or offices upon whom the law does not recognize as Legal persons. In dealing with similar submission made before him by the Appellant as Applicant, the learned trial Judge held in his judgment at page 110 of the Record of Appeal, as follows:
“Reference was also made to the Fundamental Rights Enforcement Procedure Rules which makes reference to certain modes of service. Order V Rule 5 makes provisions for service on Police Officers or Prison Superintendent if the order is directed at the Police Officer or Prison Superintendent. That does not however make them juristic. It would appear that the words are merely descriptive of those Officers and are not meant to ascribe juristic personality to or make such Officers liable in any guise.”
The above finding of the learned trial Judge is unassailable and I endorse it without any reservation.
I now return to the Customs and Excise related Statutes. In the exercise of its Legislative powers over Customs and Excise, the National Assembly promulgated the Customs and Excise Management (Amendment) Act, 2003, to provide for a new method of valuation of goods based on the transaction value. The Act deals with the general powers of the Customs Service. The Nigerian Customs Service Board Act, CAP N100, Laws of the Federation, 2004, on the other hand, created the Customs Service Board and charged it with the duty of controlling and managing the administration of the Customs and Excise laws. The Board is headed by the Minister of Finance as Chairman while the Comptroller-General of the Nigeria Customs Service is the Deputy Chairman. The day-to-day administration of the Nigeria Customs Service is however vested in the Comptroller-General. While one can say, as decided by this Court in Ukpe vs. Comptroller General of Nigeria Customs Service (2021) LPELR-55220 (CA), that the Comptroller General of the Nigeria Customs Service is a juristic person because his office was created by statute, the same cannot be said of the 4th Respondent, Area Comptroller, Nigeria Customs Service, Federal Operations Unit, Lagos, which office was created mainly for operational reasons. The lower court was therefore in error when it held that the 3rd Respondent is not a juristic person. Accordingly, Issue 3 is resolved partly in favour of the Appellant.
Notwithstanding the part resolution of Issue 3 in favour of the Appellant, however, the earlier resolution of Issues 1 and 2 against the Appellant has snubbed life out of the appeal. The appeal has failed and is hereby dismissed. The judgment of the Federal High Court, Lagos in Suit No. FHC/L/CS/1312/2017 delivered on 16/03/2018 by A.O. Faji, J., is hereby affirmed. I order that parties shall bear their respective costs of this appeal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
COUNSEL APPEARANCES:
I.L. Mgbolu Esq. for the Appellant
M.O. Bajela Esq. for the 1st & 2nd Respondents
David Ereh Esq. for the 3rd & 4th Respondents
M. I. SIRAJO,JCA. CA/L/770/2018 | PAGE OF |
