Customs To Pay N74m For Illegal Seizure Of Foreign Rice
The Nigerian Customs Service Board, is to pay a judgment sum of N74 million to a businessman, Franklin Ihejirika, for unlawful seizure and evacuation of 3,000 bags of foreign rice from his shop a federal high court sitting in Lagos ordered
The
operatives of Nigeria Customs were said to have stormed the applicant’s
warehouse at iddo Terminal, Ebute Metta, and evacuated and seized the 3, 000
bags of rice seven months after it was imported.
Apart from
the N74 million judgment sum, the court also made the following declarations
against the Nigerian Customs Service: “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.”
The above
orders and declarations were made by Justice Daniel Osiagor, while delivering
judgment in a suit marked FHC/L/CS/1619/2019, filed by the businessman against
the Nigeria Customs Service Board and Comptroller General Of Customs,
which was listed as the second respondent.
The
businessman had 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,
the businessman had asked the court for 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.
“A 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
businessman had gave the following reasons for seeking the reliefs: “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 that 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 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
businessman had supported his suit with an Affidavit of 14 paragraphs and with
3 exhibits which the court admitted and marked Exhibits A-D.
The respondents in their counter-affidavit deposed to by a lawyer, Adeuti
Adesina, and filed by their lawyer, Kingsley Ebimon, raised two issues for
determination.
The issues
raised by the defendants 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, and examined all the exhibits tendered and cited plethoras of
authorites, resolved all issues raised by the parties in favour of the
applicant.
In the
judgment, 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 an 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.
“Section 167(1)Any
officer or police officer or any person authorized on behalf of the board may
at any time seize or detain anything liable for forfeiture under the Custom and
Excise Management Act or which such officers, police officers or other persons
has reasonable grounds to believe is liable for forfeiture. See also section
147(1)
“The above
provisions unequivocally encapsulates the powers of the Respondents to
prosecute for offences for goods in possession of anyone for which these
sections are applicable. See also Section 46 of the Customs and Excise Act on
the penalty for importation of prohibited items.
“Sections
147 and 167 authorizing the respondents agents to seize and detain things
liable to forfeiture. Thus whilst the suspects will be prosecuted for the
criminal offence, the goods will be forfeited finally by a court of law.
“In Edet V
Board Of Customs And Excise (1965) 4 N.S.C.C 58 at 63 (Sasegbon’s Laws of
Nigeria) Vol 8, Page 414, Bairamian JSC held: “It remains to add that
proceedings for forfeiture must be taken separately as civil proceedings in
accordance with the fourth Schedule to the Customs and Excise Management Act”.
“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”
“Proof of
fake, cloned or forgery involves the production of the documents from which the
receipts were cloned. See David Ogodo V George Emonena Glory & ANOR (2016)
LPELR-40149 (CA), APC V PDP & ORS (2015) LPELR-24587 (SC).
“The
respondents In a further counter affidavit in paragraph 5 deposed as follows:
“that the respondents aver that assuming but not conceding that exhibit A1-A50
attached to the applicants application are genuine custom duty, the document
shows duty was paid on the 8th of March 2016 on the three thousand (3000) bags
of foreign parboiled rice were evacuated from the applicants warehouse in
October 2016, 7 months after importation of the said bags of rice; the
applicant is hereby put to the strictest proof that the said rice warehoused is
same as the ones on which import duty was paid in view of the interval between
their importation and time it was evacuated by customs.”
“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.
“Besides,
the applicants deposed in his affidavit of the various visits to the
respondents Headquarters as well as exhibited letter of demand (Exhibit B). The
respondents rather evasive response that it is within the knowledge of the
applicant.
“It is trite
law that any averments not specifically traversed or not traversed at all is
deemed admitted. These facts are therefore deemed admitted. In Nigeria Customs
Service Board V Sunday Chukwunta (2016) LPELR-41479 (CA) it is the Respondent
who should prove that duty was paid on the goods. NWOSU V BOARD OF CUSTOMS
& EXCISE (1998} NWLR PT 93 PAGE 225.
“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. See Board Of Customs & Excise V ALHAJI Ibrahim Barau (1982)
LPELR-789 (SC).
“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. Evidential burdens do Shift
UMARCO NIGERIA PLC V OFEELLY AGRO-FARMS & EQUIPMENT COMPANY LIMITED &
ANOR (2016) LPELR41550 (CA).
“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. See NURSING AND MIDWIFERY COUNCIL OF NIGERIA V ESTHER BOSE
ADESINA (2016) LPELR40610 (CA), RANSOME-KUTI & ORS V AG FEDERATION &
ORS (1985) LPELR2940 (SC), Every institution of government must work within the
scope and ambit of the law circumscribed by its constitutive instrument and
within the grundnorm, the 1999 Constitution (as amended}.
“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.”
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