Mr. Wilson Brownson V. Nigeria Customs Service Board (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The Respondent on 25th October, 2007 obtained an order from the Federal High Court (I) condemning and forfeiting to the Federal Government of Nigeria, containers and goods listed in the schedule attached to the motion and marked as exhibit NCS “A”, “B”, “B1” and “C” and (2) an order of court to dispose of the containers and the said goods by auction sale to the public by Nigeria Customs Service Board or by any other means that the applicant may deem appropriate.

The appellant, feeling aggrieved by that order and contending that his Daf truck registered as No. XC 294 AGL was affected by the said order of the Federal High Court applied to this court for leave to appeal as an interested party. This court on 12th September, 2009 allowed the application and on 13th September, 2009 the appellant filed his notice of appeal. The parties exchanged briefs of argument. The appeal was heard and judgment reserved.

On close perusal of the record of appeal however, I discovered nothing linking the proceedings with the said appellant’s truck alleged to have been ordered forfeited and sold by the trial court. The schedule upon which the trial court founded its order was not placed before this court. This court cannot therefore determine this appeal on the merit as the missing record is fundamental.

In such a situation the proper order to make is a retrial on the merit. See Okochi & Ors vs. Animkwoi & Ors (2003) 18 NWLR (Pt. 851) 1. However, in the instant case the order for retrial de novo is in-appropriate as the appellant was not a party to the suit at the court of first instance. In this circumstance the only order I can make is a striking out.

This appeal is struck out. No order as to costs.

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Other Citation: (2012)LCN/5504(CA)

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