Alhaji Danyaro Hamisu V. Commissioner of Police (1997)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

This appeal arose from the decision of Katsina State High Court No.1. The applicant filed a motion before the High Court under section 40(1) of the 1979 Constitution as amended and Order 8 Rules 2(1) and 3 of the Katsina State High Court Civil Procedure Rules 1987.

In the motion the applicant prayed for the release of 15 cartons of London and Rothmans Cigarettes and a 504 Saloon Car. The application before the High Court was supported with an affidavit and some exhibits attached to the affidavit.

At the end of hearing of the motion and in a considered ruling the learned Chief Judge granted the application partially by ordering for the conditional release of the car, but refused to order for the release of the 15 Cartons of Cigarettes.

The applicant was not happy with the decision and he appealed to this court. Before I go into the appeal, it may be helpful to state briefly the facts of the case. The applicant asked two of his boys to convey in his car some 15 cartons of London and Rothmans Cigarettes to Sokoto from Kaduna. On their way to Sokoto, the boys met Customs check point at Mairuwa Dam, Funtua. Something went wrong at the check point which resulted in shooting with a gun as a result of which one of the boys was killed and the other injured.

The vehicle and the cigarettes were collected by the police who came in to investigate the matter. The Car and the cigarettes were taken to Police Headquarters Katsina where they were kept.

The applicant then asked for the release of the car and the cigarettes to him, but they were not released so he went to court and filed an application by way of motion on notice for the release of the car and the cigarettes.

The High Court heard the application and the learned Chief Judge in his ruling reached the following conclusion:

“I have no way of disputing the averments of the applicant as contained in the affidavit, but one thing which is certain is that the servants of the applicant committed an offence of offering bribe or gratification to the men of customs who challenged them on the goods they were carrying. This is a very serious offence which should neither he condoned nor glossed over. Furthermore of all the exhibits tendered particularly those marked Exhibits ‘A’ and ‘B’ and attachments there to, the name of the applicant is conspicuously missing from all of them. They are therefore not relevant to this application so rejected (sic). As for exhibit ‘C’ there is enough conflict and uncertainty as to what it is and for whom it is, to render it unacceptable. It is also rejected. Going by exhibit ‘D’ and the attached document, there is a prima facie evidence of ownership of which (sic) by the applicant and I agree with the submission of learned counsel to the respondent that the vehicle be released to the applicant on condition that the applicant gives an undertaking to the respondent that he would not dispose the vehicle without (sanctor) (sic) (sanction) of the respondent or this court, and that he would presue (sic) (present) to the respondent the vehicle at anytime the vehicle will be needed for purposes of prosecution of the allegations contained in exhibit ‘D’. All other goods in respect and mentioned in this application are to remain in the custody of the respondent till such a time the case is disposed of or when the court orders otherwise.”

The applicant was not happy with this order and he appealed to this court. In compliance with the rules of this court, the applicant as appellant filed appellant’s brief of argument. The respondent, who was never represented and who entered no appearance throughout the hearing of the appeal filed no brief of argument.

In his brief of argument, the appellant formulated one single issue for the determination of the appeal arising from the one ground of appeal filed. It reads as follows:-

“Whether the lower court was right in granting part of the applicant’s prayer and withholding the other in the absence of counter-affidavit and objection by the respondent.”

It is the contention of the learned counsel for appellant that the trial court was in error to allow the application in part and refuse it in part. That since there is no counter affidavit before the trial court; it should have accepted in to what the appellant presented before it and acted on it. That the facts deposed to should have been accepted as the truth since there is no counter-affidavit to indicate that the facts are manifestly false. Learned counsel cited the cases of Azeez v. State (1986) 2NWLR (Pt 23) 541; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 in support.

It is also the contention of the learned counsel that even though the name of the appellant did not appear on exhibits A & B, but his name appeared in exhibit C that if there are doubts about these documents, the genuineness or otherwise of the documents could only be challenged by the respondent, who filed no counter-affidavit. That the trial court should have in the circumstances acted on the unchallenged averments in the affidavit of the applicant.