By Jude-Ken Ojinnaka
A Federal High Court sitting in Lagos has ordered the Nigerian Customs Service Board to pay a judgement sum of N74 million to a businessman, Franklin Ihejirika, for the unlawful seizure and evacuation of 3,000 bags of rice from his shop.
The above order was made by Justice Daniel Osiagor while delivering judgement on a suit numbered FHC/L/CS/1619/2019, filed by Franklin Ihejirika against the Nigeria Customs Service Board and Comptroller General Of Customs, listed as the first and second respondents.
In addition to the payment of N74 million to Franklin Ihejirika, the court also declared
“that the seizure and detention of the Applicant’s 3,000 bags of rice at iddo Terminal, Ebute Metta, by agents of the respondents are 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.
“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.”
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In the suit filed by the businessman, the operatives of Nigeria Customs were said to have stormed the applicant’s warehouse at iddo Terminal, Ebute Metta, evacuated and seized the 3, 000 bags of rice seven months after it was imported.
Consequently, he 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, Franklin Ihejirika (applicant) had sought 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.
“An 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 applicant’s grounds for seeking the relief are: “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, 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 custom 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 applicant had supported his Originating Summons with a 14-paragraphs affidavit and 3 exhibits which the court admitted and marked Exhibits A-D.
In their counter affidavit deposed to by a lawyer, Adeuti Adesina and filed by their counsel, Kingsley Ebimon, the respondents raised two issues for determination.
The issues raised by the respondents 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, examined all the exhibits tendered and cited plethoras of authorities, resolved all issues raised by the parties in favour of the applicant.
In the judgement, 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 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.
“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”
“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.
“It is trite law that any averments not specifically traversed or not traversed at all is deemed admitted. These facts are therefore deemed admitted.
“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.
“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.
“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.
“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.”