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?

(f) providing for the taking or posession of property that is in a dangerous state or injurious to the health of human being, plants or animals; (g) relating to enemy property; (h) relating to trusts and trustees; (i) relating to limitation of actions; (j) relating to property vested in bodies corporate directly established by any law in force in Nigeria; (k) relating in the temporary taking, of possession of property for the purpose of any examination, investigation of enquiry; (l)  providing for the carrying out of work on land for the purpose of soil-conservation; or

(m) subject to prompt payment of compensation for damage to buildings,  economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles cables, wires, pipes, or other conductors or structures on any land in order to provide or maintain the supply or distribution of energy, fuel, water sewage, telecommunication services or public facilities or public utilities.. Thus whereas the Constitution prohibits the compulsory acquisition of the property of any person without prompt payment of compensation? it goes on further to make, inter alia, exception in respect of property acquired for the imposition or enforcement of any tax.,  rate or duty under S.40(2) (a). There is therefore some merit in the argument of the Respondents  counsel that the right allegedly breached is not within the contemplation of the Constitution since the Applicant’s claim is for the release of his motor car-seized by Customs and Excise Board for using false documents.

This application should therefore not have been Drought under the Fundamental Rights (Enforcement Procedure) Rules, I have adverted my mind to the provisions of S.148(3) of the Customs and Excise Management Act 1958 hereinafter referred to simply as ‘the Act1 which provide chat all proceedings for the condemnation of anything as being forfeited shall be instituted in accordance with the the provisions of the Fourth Schedule of the said Act. This application, should therefore, in my opinion, have been brought under the said Act.

Having not been so brought, should it be thrown out as has been submitted by the Respondents counsel? Even though the Applicant has made the application under a wrong law, I will still consider this application on its merit.    For as the Supreme Court held in so many cases, a Court of law should hot be concerned with technicalities but rather with doing substantial justice between the parties.    See for example the cases of Nofiu Surakatu V Nigerian Housing Development Society Ltd. 1981 4 S.C. 20 and The Attorney General of Bendel State V Attorney General of the Federation 1981 10 S.C. at page 277.

Having disposed of this preliminary issue, I will now go into the main issue for consideration in this matter which is whether the detention of the Applicant’s vehicle is lawful. Section 148(1) of the Act empowers any Customs officer, or police officer or any person authorised by that Board to seize or detain anything liable to forfeiture.

And under S. 142(3) of the Act any goods in relation to which untrue document or untrue statement was made shall be forfeited. Is the Applicant’s vehicle liable to forfeiture having regard to the evidence led in this case? The argument of the Respondents Counsel is that since the’ document presented. i.e Exhibits A, B, C and D are fake, the Applicant has breached the provisions of S. 142 of the Act. She argued that the attested invoice (Exhibit A) which was used in preparing the Bill of Entry (Exhibit B) is forged and that the car involved is liable for forfeiture and so the Customs & Excise Department have the right to detain the said car.

The detention, it has been further argued, is legal since the right to detain has been conferred by Sections 8 and 148 of the Act. It must be pointed .out that In view of the evidence led before this Court in this case, the question whether the Applicant paid duties is no longer in issue.

In his testimony P. W. 2 i,e the clearing agent employed by the Applicant informed the Court that he paid a total sum of N14,100 to the Board of Customs and Excise towards clearing the vehicle in question;  the first payment was in the sum of N 8,100  while the second one was in the sum of  N 6,000.

This piece of evidence was not controverted rather It was confirmed by D.W.I to the extent that P.W. 2 had paid additional sum of N6,000 for unpaid duties. It has, however, been contended that even if all duties have been paid,  in so far as they are paid on false attested invoice they will be deemed not to have been paid.”   This is a restatement of Section 142(3) of the Act as amended by the Customs. & Excise Management. (Amendment)  Decree 1972 which declares that any goods in relation to which untrue document or untrue statement was made, shall be forfeited.

The Issue is therefore now narrowed down.to consideration of the documents’ that were tendered and admitted in evidence as exhibits. It has been alleged that Exhibits A, B, C and D are forged. This is an allegation of commission of crime and by virtue of Section 137(1) of the Evidence Act, the proof has to be beyond reasonable doubt.

Exhibits C and D were the bill of entry and the attested invoice respectively recovered in the house of Tony Igbokwe by D.W.I. The learned counsel for the Applicant submitted that these two exhibits were not used by P.W.2 and that Tony Igbokwe from whose house the document were recovered was not called to testify as to their origin and so urged the Court to disregard the documents. The learned counsel for the Respondents however submitted that Exhibit C is forged in its entirety D.W.I explained to-this Court how he came to the conclusion that Exhibit C is forged i.e the security number on the Exhibit does not correspond with Customs security number of the same type and that the Customs stamp on the Exhibit is not the same with the one the Customs Department normally uses.

Though this piece of evidence was not controverted,  it must be observed that the only oral evidence we have in the Exhibit under consideration, was that of D.W.1. Tony Igbokwe from whose house the documents were recovered was not called’ to testify as to how he came to be in possession of the documents. There is no evidence to show that the .agent, appointed by the Applicant i.e. P.W. 2 made use of the documents to secure the release of the vehicle.

The two Exhibits have not been linked with the Applicant. I am not of course unmindful of the fact that the stamp of EDIS AGENCY appeared on Exhibit C. D.W.I in his own testimony confirmed that Edis repudiated the entry. Edis Agency Was the first Agent the Applicant employed for the purpose of clearing the vehicle in question. Furthermore, as argued by the learned counsel for the Applicant there is no evidence that Exhibits C and D were presented to the Department of Customs & Excise for the purpose of being acted upon.

It is mv view that the fact that the release note I.e.  Exhibit E bears the same number with the one found on the bill of entry recovered in the house of Tony Igbokwe Exhibit C is no conclusive evidence of presentation in the absence of the officer to whom the bill of entry and the attested invoice were presented not having Keen called to testify.

The evidence led was simply ‘ that the documents were recovered in the house of: Tony Igbokwe. I do not therefore consider Exhibits C and D to be of any evidential value and they are not going to be relied upon. If Exhibits C and D are expunged from the record, I am left with only Exhibits A and B. They were the attested invoice and the bill of entry respectively used by P.W. 2, in clearing the Applicant’s vehicle.   

P.W.2 told the Court that the bill of entry which he used in clearing the vehicle was not machined outside the Customs long room and that it is not forged. Under cross examination D.W.1 admitted that the bill of entry used by P.W. 2 was processed through the Customs long room. There appears to be not so much fuss about Exhibit B other than that Exhibit A which formed the basis for its preparation is forged. The evidence adduced in support of this allegation is that of D.W.

1.  He said inter alia “On-. 15/3/89 he delivered the car to the Customs as requested. From the documents he submitted, I had to go to Tin Can and investigate the documents. Here I found another attested invoice different from previous one found in Tony Igbokwe’s house used in clearing the car.    On close examination I compared the two attested invoices and dis-covered they were forged.   

An attested invoice is issued by a manufacturer stating the state of goods, the origin the cost, insurance and freight. There were differences between the two invoices in the names of manufacturers, prices, insurance and freight.”  I have already concluded that Exhibits C and D have not been linked with the Applicant. Exhibits A and B, of Course, have been so linked with him.

Therefore any differences between the attested Invoice found in the house of Tony Igbokwe and the one used by P.W,2 for the purpose of clearing the Applicant’s vehicle, cannot justifiably form the basis for concluding, that either or both invoices are forged. Having regard to the evidence led in this case, it has not been proved beyond reasonable doubt that the attested invoice and the bill of entry used by P.W.2 in clearing the Applicant’s vehicle are untrue in any material particular to justify its continued detention.

The Order of this Court therefore is that the Applicant’s motor vehicle should be immediately released to him by the Customs, Immigration and Prison Services Board subject to the Applicant signing a bond before this Court to the following effects- 1.  That the Applicant shall not sell or by any means dispose of the motor vehicle Mercedes Benz 200D while Suit No. FHC/L/6C/89 before Hon.. Justice Abutu of the Federal High Court No. 7 Lagos is still pending.

2. That the Applicant shall make the car available at the hearing of the said suit and any subsequent adjournments thereof until the matter is finally disposed of by the aforementioned Court.

Other Citation: (1988) LCN/2394(SC)