A Lagos Federal High Court, has ordered the Nigerian Customs Service Board, to pay a judgment sum of N74 million to a businessman, Franklin Ihejirika, for unlawful seizure and evacuation of 3,000 bags of foreign rice from his shop.

The operatives of Nigeria Customs were said to have stormed the applicant’s warehouse at iddo Terminal, Ebute Metta, and evacuated and seized the 3, 000 bags of rice seven months after it was imported.

Apart from the N74 million judgment sum, the court also made the following declarations against the Nigerian Customs Service: “a declaration that the seizure and detention of the Applicant’s 3,000 bags at iddo Terminal, Ebute Metta, by agents of the respondents is unconstitutional and a violation of the Applicant’s fundamental right to property as guaranteed by section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 14 of the African Charter.

“A declaration that the baggage and custom duties paid on the 3,000 Bags of rice are the lawful duties on the bags of rice as accessed by the respondents.”

The above orders and declarations were made by Justice Daniel Osiagor, while delivering judgment in a suit marked FHC/L/CS/1619/2019, filed by the businessman against the Nigeria Customs Service Board and  Comptroller General Of Customs, which was listed as the second respondent.

The businessman had dragged the respondents before the court in a fundamental rights enforcement suit brought pursuant to Order 2 Rules 1, 3, 4, 5 and 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009 as preserved by section 315 of the 1999 Constitution, Sections 36 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Article 14 of the African Charter on Human and Peoples’ Right (Ratification & Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004, and under the court inherent jurisdiction.

In the suit, the businessman had asked the court for the following reliefs: “a declaration that the seizure and detention of the Applicant’s 3,000 bags at iddo Terminal, Ebute Metta, by agents of the respondents is unconstitutional and a violation of the Applicant’s fundamental right to property as guaranteed by section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 14 of the African Charter.

“A declaration that the baggage and custom duties paid on the 3,000 Bags of rice are the lawful duties on the bags of rice as accessed by the respondents.

“An order directing the Respondents to pay the Applicant the sum of N69 million, being the value of 3,000 bags of rice at N23,000 per bag being the value of each bag of rice at the time of seizure by the respondents.

“A order of general damages directing the respondent to pay the applicant the sum of N50 million, for the economic loss and depreciation in the applicant’s business occasioned by the illegal detention.”

The businessman had gave the following reasons for seeking the reliefs: “The Applicant bought bags of rice totalling 3, 000 bags from various importers who had paid the baggage assessment and custom duties on the bags.

“That by the laws of the respondent that the maximum amount of bags to be assessed is 60 bags on which a duty of N200, 551.00, is paid for the 60 bags.

“That his 3,000 bags would require 50 separate baggage assessments and payment of Custom duties.

“That he is in possession of the 50 duties paid on the 3,000 bags of rice and the respondents have confirmed same to be authentic.

“The second respondent had stated that foreign rice was poisonous in an interview despite the respondents inspecting the bags and collecting duties on it and approving its passage through the borders only to seize it without reason.”

The businessman had supported his suit with an Affidavit of 14 paragraphs and with 3 exhibits which the court admitted and marked Exhibits A-D.
The respondents in their counter-affidavit deposed to by a lawyer, Adeuti Adesina, and filed by their lawyer, Kingsley Ebimon, raised two issues for determination.

The issues raised by the defendants were: “Whether or not in the circumstance of this matter the applicant have proven from their Affidavit evidence that there was a violation of his Constitutional rights and consequently entitled to the sum of N69 million special damages and N50 million general damages.

“Whether or not the second respondent Is a juristic person known to law that can sue and be sued in the names as stated in the Originating Summons.”

In determining the suit, Justice Osiagor after considering all the submissions made by parties, and examined all the exhibits tendered and cited plethoras of authorites, resolved all issues raised by the parties in favour of the applicant.

In the judgment, Justice Osiagor ruled that: “this Fundamental Right Enforcement Proceedings in the main dwells on the powers of the respondents to seize and confiscate alleged prohibited items. The respondents admitted the seizure in paragraph 8 of the respondents Counter-Affidavit of 9th October 2019 thus: “That the Respondents aver that the seizure of the Applicants bags of rice is in line with the extant laws”

“In the respondents Written Address, reliance was placed on Sections 3, 4, 6 and 167(1) of the Custom and Excise (Special Penal and other provisions) Act LFN 2004 amongst other statutory and judicial authorities. They provide as follows: “Section 3 (1) —if any person is found anywhere in Nigeria in possession of any goods of an which this section applies, he shall be guilty of an offence “(2) This section applies to any good not being goods manufactured, otherwise produced in Nigeria.”Section 46 — Forfeiture of goods improperly imported where: (b) – any goods are imported, landed or unloaded contrary to ay prohibition; those goods shall be forfeited.

“Section 167(1)Any officer or police officer or any person authorized on behalf of the board may at any time seize or detain anything liable for forfeiture under the Custom and Excise Management Act or which such officers, police officers or other persons has reasonable grounds to believe is liable for forfeiture. See also section 147(1)

“The above provisions unequivocally encapsulates the powers of the Respondents to prosecute for offences for goods in possession of anyone for which these sections are applicable. See also Section 46 of the Customs and Excise Act on the penalty for importation of prohibited items.

“Sections 147 and 167 authorizing the respondents agents to seize and detain things liable to forfeiture. Thus whilst the suspects will be prosecuted for the criminal offence, the goods will be forfeited finally by a court of law.

“In Edet V Board Of Customs And Excise (1965) 4 N.S.C.C 58 at 63 (Sasegbon’s Laws of Nigeria) Vol 8, Page 414, Bairamian JSC held: “It remains to add that proceedings for forfeiture must be taken separately as civil proceedings in accordance with the fourth Schedule to the Customs and Excise Management Act”.

“In this suit, the respondent neither provided the evidence of prosecution nor of forfeiture proceedings after seizure and detention of these three thousand bags of rice since 6th October 2016. The Applicant deposed to the payments of custom duties over these 3000 bags of rice and supplied exhibits A1-A50 in proof of same.

“The respondents answered as follows in their counter affidavit of 9-10-2019 paragraph 9: “That the respondents aver that exhibits A1-A50 attached to the applicant’s application are cloned and fake, it should be discountenanced by this honourable court”

“Proof of fake, cloned or forgery involves the production of the documents from which the receipts were cloned. See David Ogodo V George Emonena Glory & ANOR (2016) LPELR-40149 (CA), APC V PDP & ORS (2015) LPELR-24587 (SC).

“The respondents In a further counter affidavit in paragraph 5 deposed as follows: “that the respondents aver that assuming but not conceding that exhibit A1-A50 attached to the applicants application are genuine custom duty, the document shows duty was paid on the 8th of March 2016 on the three thousand (3000) bags of foreign parboiled rice were evacuated from the applicants warehouse in October 2016, 7 months after importation of the said bags of rice; the applicant is hereby put to the strictest proof that the said rice warehoused is same as the ones on which import duty was paid in view of the interval between their importation and time it was evacuated by customs.”

“The respondents by the above depositions admit to payment of duties permissible on imported rice. That the Respondents are not sure if the custom duties was genuine or fake or cloned as claimed by the Respondents. It is he who asserts in a statement of fact that a document is fake that is duty bound to establish same. See section 131 Evidence Act 2011.

“Besides, the applicants deposed in his affidavit of the various visits to the respondents Headquarters as well as exhibited letter of demand (Exhibit B). The respondents rather evasive response that it is within the knowledge of the applicant.

“It is trite law that any averments not specifically traversed or not traversed at all is deemed admitted. These facts are therefore deemed admitted. In Nigeria Customs Service Board V Sunday Chukwunta (2016) LPELR-41479 (CA) it is the Respondent who should prove that duty was paid on the goods. NWOSU V BOARD OF CUSTOMS & EXCISE (1998} NWLR PT 93 PAGE 225.

“There is no doubt about the competence of the Respondent to seek or search for anyone in Nigeria or persons in possession of goods chargeable with import duty or lable of forfeiture. See Board Of Customs & Excise V ALHAJI Ibrahim Barau (1982) LPELR-789 (SC).

“Where however the person arrested or whose goods are seized satisfies the court of payment of the necessary duties the onus is on the custom to establish to the contrary. That the respondents have failed to do. Evidential burdens do Shift UMARCO NIGERIA PLC V OFEELLY AGRO-FARMS & EQUIPMENT COMPANY LIMITED & ANOR (2016) LPELR41550 (CA).

“The respondents have not placed any fact to displace or contradict the depositions and documentary exhibits of the Applicants. It is noteworthy that where an Agency is statutorily empowered to sanction like in this case seize, detain goods liable for forfeiture the rule of law must guide the agency. Where rights of citizens are compromised, the law will guard jealously and act in protection of such rights. See NURSING AND MIDWIFERY COUNCIL OF NIGERIA V ESTHER BOSE ADESINA (2016) LPELR40610 (CA), RANSOME-KUTI & ORS V AG FEDERATION & ORS (1985) LPELR2940 (SC), Every institution of government must work within the scope and ambit of the law circumscribed by its constitutive instrument and within the grundnorm, the 1999 Constitution (as amended}.

“Power to seize entails a corresponding responsibility to justify the seizure as well as proceed to the court for its forfeiture. Neither was the seizure justified nor was a process filed for the forfeiture. Rather to the contrary the applicant has supplied documentary exhibits of its duties paid. Duties payments that remained unassailable.

“I find merit in the applicant’s application and grant the prayers A, B C and N5 million general damages.”