Federal Government Of Nigeria V. Alhaji Adigun Akinola (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the Ruling of the Federal High Court sitting in Akure delivered by Hon. Justice I. M. Sani in Charge No.FHC/AK/50C/2012 on 27th day of November 2012.

The Appellant as complainant brought charges of reckless driving, conspiracy and dealing in adulterated or locally refined diesel product without lawful authority sundrily under the provisions of Section 343 (1)(a) and 332(1)(a) of the Criminal Code Act Cap. C. 38 L.F.N. 2004 and Section 3 (6) and 1 (17) of the Miscellaneous offences Act Cap. M17 L.F.N. 2004 against ABBAS Salami, Saheed Adewale and Tajudeen Ogunsola.

The six count charge against the said accused persons was dated 9-11-2012 and the plea of the accused persons were taken on the 13/11/2012. By a Motion on Notice dated 26/11/2012 and filed on 27/11/2012, the present Respondent as Applicant joined the Federal Republic of Nigeria and the Commandant, Nigeria Security and Civil Defence as Complainant/Respondent and part interested/Respondent respectively and prayed the court below:

1. An order of the Honourable Court directing the party Interested/Respondent to release to the Applicant the Tanker truck Registration No.XB 569 AGG/Chassis No.IMIAA08X3 YWO20089 (belonging to the Applicant) which is at the custody of the party Interested/Respondent at his base station in Akure forthwith.
2. AND for such orders as the Honourable court may deem fit to make in the given circumstances.

The grounds upon which the application was made are as follows:

1. That the case in respect of which the said tanker truck was impounded is within the jurisdiction of this Honourable court.
2. That the Applicant, the owner of the tanker-truck in issue is not an accused person standing trial before the court.
3. That the continued impoundment of the tanker truck by the party interested/Respondent is seriously destroying the business activities of the Applicant.
4. That the Applicant undertakes to produce the tanker truck whenever needed.
5. That the Applicant herein denied any responsibility or connection as regards the incident leading to seizure of his tanker truck.

At the court below, the party interested Respondent (now Appellant filed a counter-affidavit to the Applicant’s affidavit in support of motion and the parties exchanged written addresses.

In a considered Ruling delivered on 27/11/13, contained at pages 69 – 79 of the records the learned trial judge held at pages 77 – 79 thus:

“From the affidavit in support of the application, the attached Exhibit ‘A’ I am satisfied that the Applicant is the owner of the said truck and that is the only means of livelihood of the Applicant. In the circumstance, therefore it will be in the interest of justice to grant this application.

See: Nigeria Customs Service & Onyebuchi Obidite, Innocent Nwankwo & Isaac Okeja FHLR (2005) Vol.1 at page 576; Nigerian Customs Service v. Ndu Bros. Overseas Agency Ltd, FHLR (1990) Vol.1 at page 401.

However, the prosecution has the right to prosecute this case without frustration, I am therefore inclined to release the tanker truck to the Applicant on the following conditions pending the determination of the criminal charge against the accused persons.

The application succeeds and it is granted on the following conditions:

1. The Tanker Truck Registration No.XB 569 AGG Chasis No.IMIAA08X3YW020089 (belonging to the Applicant) which is at the custody of the party Interested/Respondent at his base in Akure be released to the Applicant Alhaji Adigun Akinola.
2. The Applicant shall furnish the court with either a Bank Guarantee or Bank Draft in the sum of N1,000,000 (One Million Naira) from either First Bank, Union Bank, UBA or any other reputable Bank which he stands to forfeit if he fails to produce the said truck whenever required by the court.
3. The Applicant shall produce the said Truck at anytime directed by the court.
4. That the alleged adulterated content of the Truck 10,000.00 liters of refine diesel product Registration No. XB 569 AGG be sold by way of public auction and money realized be deposited in an interest yielding account by the Registrar of this court who shall act as the Auctioneer.
5. That before the release of the said vehicle sample of the said alleged adulterated product shall be taken (if not already taken by the prosecution for analysis).
6. That there shall also be a written undertaking by the Applicant counsel to make available the said truck whenever it is required.

Dissatisfied with the above Ruling the party Interested Respondent filed a Notice of Appeal containing two (z) grounds of appeal before this court on 3/12/13.

Appellant’s brief of argument dated 14/3/2014 was filed on 18/3/2014. Respondent’s brief of argument incorporating preliminary objection dated 11/4/2014 was fled on 14/4/2014. Appellant thereafter filed a Reply brief dated 24/4/2014 on 25/4/2015.

In arguing the Notice of preliminary objection, Learned counsel for the Respondent submitted that the Appellant’s appeal is incompetent such that no jurisdiction is vested in this Honourable court of Appeal to entertain the same. That it is on record that the Appellant’s brief is filed and predicated on a Notice of Appeal dated and filed on 3/12/13. The said notice of appeal was not signed as required by law.