Power Of Customs To Seize Goods Not Limited To Imported Products

In the Court of Appeal, holden at Lagos, on Wednesday, February 23, 2011. Before their Lordships: Hussein Mukhtar, Justice, Court of Appeal; John Inyang Okoro, Justice, Court of Appeal; Mohammed A. Danjuma, Justice, Court of Appeal

CA/L/l3/2008

Between:

Mr. Celestine Opara-Appellant

And Nigeria customs Service Board ­Respondent. Judgment delivered by Justice Mohammed A. Danjuma, JCA,

The condemnation and forfeiture proceedings were not proceedings that involved the construction of any will, document or enactment The susceptibility of one of the cars, con­tained in the container covered by the Bill of Lading had been contested by the Appellant rendering the case one that appeared apparently contested. A contested case is better challenged by a Writ of Summons.

However, from the Exhibits in support of one of the motions before the trial court, I see the last letter of June 14, 2006, Marked Exhibit A07 wherein the appellant admits that one of the cars was Toyota 1996 model, which was a prohibited item in the prohibition list and therefore, pleaded that the other three cars of1997 model and personal effects be released to him by the respondent.

Assuming that the respondent could then, in the face of the seeming absence of dispute in respect of that car, proceed by originating summons (which I do not concede) as at worst an originating motion would have been more ideal; was the court right in proceeding to determine the matter without any Notice of proceedings on the appellant?

As the appellant rightly submitted, the Customs and Excise Management Act at Section 167 (2) thereof provides for the application of the 3rd scheduled to the Act. It is applicable to forfeiture and condemnation proceedings, mandatory. For the avoidance of doubt, Section 167 (2) provides as follows:-

“Anything seized or detained under the Customs and Excise law shall forth with be delivered into the care of the Board and, sub­ject to the provisions of the third scheduled· to this Act, shall pending the determination as to its forfeiture or disposal, be dealt with, and, if condemned or deemed to have been condemned as forfeited, shall be disposed or, in such manner as the Board may direct.

The provisions of the third scheduled to this Act shall have effect for the purposes of forfeiture, and all proceedings for the condemnation of anything as being forfeited, under the Customs and Excise Laws.”

Paragraph 3 of the said Third Schedule provides for the need of the person complaining of seizure to give a notice of his objection if he complains that the goods are not subject to forfeiture or seizure. This is after the Customs Authority would have mandatorily given its Notice of seizure and the grounds thereof. Claimant/Appellant had sundrily given Notice of his objection to the seizure as made of his goods.

By the combined effect of paragraphs 4-10 of the 3rd Schedule of the Customs and Excise Management Act, 1990, therefore, the Appellant who is by paragraph 4 bound to supply his address in the Notice is reciprocally entitled to have the Respondent bound to ensure that he (Appellant) is joined and served all court processes particularly the originating process in a condemnation proceedings.

I think, this is the clear intendment of paragraph 10 of the 3r schedule when it provides as follows: –

“In any proceedings for condemnation, the claimant or his legal practitioner shall make oath that the thing seized was, or was to the best of his knowledge or belief the property of the claimant at the time of the seizure. If the requirements of this paragraph are not complied with, the court shall give judgment for the Board.”

From the above, I agree with the Appellant’s counsel when he submitted that he purpose of paragraphs 4 and 10 of the third schedule of the Customs and Excise Management Act is to ensure that the aggrieved or complainant is out on Notice of an proceedings in the condemnation claim. Paragraph 4 of the said 3rd schedule contemplates and includes even a claimant whose goofs have been seized and who is outside the country to also have the name and address of his counsel in Nigeria given for the purposes of service of process.

Paragraph 10 provides for a mandatory oath by a claimant or his legal practitioner in a condemnation proceedings that the thing seized was or to the best of his knowledge or belief the property of the claimant at the time of the seizure for him to avoid a mandatory judgment in favour of the Board. From the above provisions, it is obvious that a claimant must be a party to and be served the originating process in every condemnation proceedings; An Exparte, originating summons taken in the case, the subject of this appeal, cannot satisfy this requirement.

I shall not dwell further on the procedure of the originating process herein, but be concerned not only with its Ex-parte nature but its non-service by the court. It is in this light that I agree with the Appellant when he submits that the Ex-parte application, which was determined without service on him, was wrong, as every originating process must be served on the other party personally. See Order 13 Rule 2 of the Federal High Court (Civil Procedure) rules, 2000.

The non-service of the originating process rendered the court of trial incompetent, as he had no jurisdiction to entertain and detemine the matter against the Defendant/Appellant. See Madukolu Vs. Nkemdilim (1962) 2 S.C.N.L.R34, wherein the Supreme Court, decided that a court is incompetent and without jurisdiction where all the conditions precedent for assuming of jurisdiction are absent. In the Madukolu’s case supra, it was held that where a court is properly constituted and non of the members is disqualified by qualification and the quorum is present and the subject matter is within jurisdiction and all the condition precedent for assumption of jurisdiction such as the appropriate Notices have not been breached then a court is competent.

In this case on appeal, although the case may have been instituted by due process but the appellant was not served the Ex-parte application. This rendered every determination of the court, no matter how correct or beautifully determined to be a mere nullity. A reference to what actually transpired in the proceedings leading to this appeal will bring out the salient facts and issue at stake relating to the lack of service of the ex-parte application and the order made without a hearing afforded to the Appellant herein.

The Appellant’s pre-used cars having been seized, arrested and detained during a routine customs inspection of imported goods, the Respondent approached the Federal High Court Lagos on the May16, 2006 and obtained an order for the confiscation and condemnation of the said cars contained in a cargo covered by a bill of lading and sought to have them disposed. See paragraph 3 of the Appellant’s Affidavit in support of his state­ment of claim at page 9 of the Record of Appeal. The Appellant in consequence filed a motion ex-parte on 26/6/06 seeking for an order to arrest and detain the cargo and an injunction pending the determination of his suit filed against the confiscation, arrest, detention or forfeiture thereof. The motion was adjourned for hearing but with an order that the motion be served on the Respondent and an order of interim injunction restraining the selling, allocation disposing or tam­pering with the said container containing the cars and other household and personal effects was granted against the Defendants and/or agents. See pages 26-28 of the Record of Appeal.

The above, not withstanding and as the plaintiff/appellant avers at paragraph 13 of his motion ex-parte filed on 22/6/06 at the lower court the trial court proceeded to hear and make the orders being challenged. The Appellant averred as follows:

… Unknown to the plaintiff and contrary to the position of the 2nd defendant in its letters of May 16,2006, the 2nd Defendant had earlier approached this Honourable Court sometime in March to obtain an order of this Honourable Court to confiscate and condemn only the Toyota Corolla alleged was manufactured in 1996.”

See page 9 of the Record of Appeal.

Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria has, as submitted by the Appellant’s counsels also, been breached.

The section provides as follows Section 36(1):­”In the determination of his civil rights and obligations; including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The appellant’s right to fair-hearing in a determination involving his proprietary interest or right in the cars sought to be and which were forfeited in the condemnation proceedings had been breached Consequently, I hold that the decision arrived at in forfeiting the cars by the said order through the Ex-parte proceedings was null and void and of no effect whatsoever.

The said order of condemnation was made without jurisdiction and in breach of the right of fair hearing of the Appellant. Exhibits A03, A04, AOS, A06 and A07 severally and/or jointly constituted the Appellant’s objection or notice contesting the seizure of the cars.

These were letters written to the Respondent. Additionally, the condemna­tion proceedings at the Federal High Court were “a Civil Proceedings” and may be treat­ed summarily. See Paragraph 8 of the Customs and Excise Management Act, 1990. It provides thus:

Proceedings for condemnation shall be civil proceedings and may be constituted in a court of summary jurisdiction.”

Not having followed strictly the Federal High Court Civil Procedure Rules, which rules are meant to be obeyed, although the originating Summons Procedure was followed; this would not have affected the merit of the case if the appellant had been heard before the ultimate decision was taken against him; since there was a dispute between the parties; originating summons was not the ideal procedure of initiating the condemnation proceedings, in the circumstance. See Attorney General Adamawa State Vs. Attorney General of the Federation (2006) 135 L.RC.N912 At 918.

Since I am not unmindful of the position taken by the apex court that “procedure is a guide to smoothen passage of suit, to direct the parties on what to do and to guide the court to arrive at the justice of the case.” See Federal Government of Nigeria Vs. Zebra (2003) 105 L.RC.N363 At 368 (Part.1O). I shall rest the issue of procedure followed in originating the suit. It is the lack of service there of that renders the outcome liable to be set aside by any judge of the Federal High Court or on appeal. Issue one is resolved in the affirmative and in favour of Appellant, therefore.

Culled from The Guardian

To be continued