Cyprain Chukwuka Anikpe V The Director Gen. B.C. & E & Ors (1988)

LawGlobal-Hub Lead Judgment Report

PER MUSTAPHER, J.S.C.

By an ex parte application on 5/4/89.the Applicant under ORDER 1 RULES 1(1) and (2) and RULES 2(1) and (3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 as well as S.40 (l) of the Constitution of the Federal Republic, of Nigeria 1979 as amended sought and was granted leave for the enforcement of his fundamental right, which he claimed was infringed by the iBoard of Customs and Excise. Motion paper and other processes /were ordered to be served on the Respondents.

The Applicant then brought a motion on notice seeding for an order of this court for the release of his car a second hand Mercedes Benz 200D seized and detained by A.O. Ajayi of ‘X’ Squad Unit of Board of Customs and Excise Apapa. The motion was supported^ by a 19 paragraph affidavit and a 5 paragraph affidavit of Urgency.

The Respondents opposed the application and filed a 17 paragraph counter affidavit. After arguments were heard in support of and in opposition to the motion I ruled that in view of material conflicts discernible between  the affidavits and the counter affidavit filed in respect of this case, the parties should call oral evidence in order to prove matters deposed to in their affidavits.

Two witnesses testified for the Applicant; they are the Applicant himself and a Clearing Agent,    The Applicant’s case according to the evidence of the two witnesses is that the Applicant on 15/8/88 imported into this country a used Mercedes Benz 200. He obtained the services of a Clearing Agent by name Edis Agency to whom he paid the sum of N15,000 for the purpose of clearing the vehicle. On becoming aware that the said Agent was detained for attempting to use fake documents to clear the said vehicle the Applicant obtained the services of another Agent by name Fostina International Ltd who then cleared the car and paid necessary levies to the Board of Customs.

The Clearing Agent (P.W.2) informed this court “that lie cleared the said vehicle and that the Bill of entry which he used in clearing the vehicle was not machined outside the Customs Long Room and is not a forged document. Two exhibits were tendered and admitted in evidence through this witness; they are Exhibits A i.e. the attested invoice and Exhibit B i.e. the Bill of entry.

The witness used the two exhibits in clearing the vehicle. The Respondents on their part called one witness although initially they indicated an intention to call two witnesses. The witness, A Custom officer, testified.to the effect that he on 20/1/89 led a team of officers and searched the house of one Tony Igbokwe at No. 18 Fashore Street,- Maza Masa Old Ojo Road, Apapa where many already machined Customs entries and fake customs rubber stamp, blank invoices and prepared invoice in respect of a Mercedes Benz with an attached attested invoice in respect of Mercedes 200D belonging to the Applicant as well   as Bill of entry with an attached attested invoice in respect of Mercedes 200D belonging to the Applicant were discovered.

The said Bill of entry and the attested invoice were tendered and admitted in evidence as Exhibits C and D respectively, In further investigation of this case he found out from the Panalpina Shipping Agency that a release note had in fact been issued in respect of the car having the same number as the one on Exhibits C and D but the car had not left the port.

It was after this that the Applicant went and introduced the Fostina International to this witness as his new Agent. On 20/2/8 9 the witness wrote to Fostina to clear the car in question and deliver it to Customs ‘X’ Squad Unit Apapa for investigation purpose. The car, was on 15/3/89 delivered to Customs as requested. The Agent delivered to this witness another attested invoice different from one found in Tony Igbokwe’s house. The witness said that the two attested invoices (Exhibits A and D) and the Bill of entry recovered from Tony Igbokwe’s house (Exhibit C) are forged.

At the end of the Respondents case, the learned counsel for the Applicant applied to recall P.W.2. I ruled against this request in a considered ruling I delivered on 15/6/89. Both counsels then addressed the Court. Their submissions will be appropriately considered in the course of this judgment. The counsel for the Respondents has submitted that this application is not maintainable under the Fundamental Rights (Enforcement Procedure) Rules because the rights allegedly preached are not the one contemplated by S.40(1) of the 1979 Constitution and so it should be thrown out.

According to S.42(l) of the 1979 Constitution as amended any person who alleges that any of the provisions of the fundamental rights has been, is being, or likely .to be contravened in relation to him may apply to the High Court for redress. Since it has been argued that the rights of the Applicant allegedly breached are not those contemplated by S.40(1) of the said constitution one may ask the question what are the rights contemplated by the said provisions of the Constitution? To answer the question I find it apposite to reproduce the entire provisions of S.40 of the 1979 Constitution as amended. It provides:-

40. (1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things – (a) requires the prompt payment of compensation therefore and (b) gives to any person claiming such compensation a right of access, for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body basing jurisdiction in that part of Nigeria.

(1A) Notwithstanding the foregoing provision, the Armed Forces Ruling Council may by Decree provide for the forfeiture of any property, right or interest described therein as having been illegally acquired by an officer in the public service of the Federation or a State or any other person, and proved before a Court or tribunal as being so illegally acquired.

(2) Nothing in subsection (I).of this section shall be construed as affecting any general law – (a) for the imposition or enforcement of any tax, rate or duty;  (b) for the imposition of penalties of forfeiture for the breach of any law, whether under civil process or after conviction for an offence; (c) relating to leases, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts; (d) relating to the vesting and administration of the property or persons adjudged or otherwise declared bankrupt or insolvent of persons of unsound mind or deceased persons/and of corporate or unincorporate bodies in the course of being wound-up; (e)  relating to the execution of judgments or orders of Courts?