Whether an Order of Court Must Be Obtained before the Detention of a Property Used in the Commission of an Offence Pending the Prosecution of the Offence

CASE TITLE:                MURTALA v. DG, SSS & ORS (2023) LPELR-59323(CA)

JUDGMENT DATE:     10TH JANUARY, 2023

JUSTICES:                     ONYEKACHI AJA OTISI, JCA

                                       MUHAMMAD IBRAHIM SIRAJO, JCA

                                       ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, JCA

DIVISION:                     LAGOS

PRACTICE AREA:          ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

FACTS:

The Appellant is a transporter and owner of Mack Truck with Registration number BDG 265 XG with his business address at No. 1 Creek Road, Apapa, Lagos. On 21/01/2017, the Appellant’s aforesaid Truck conveyed a 40 feet container batched inside the Apapa port premises to the Trade Fair Complex, Alaba, Ojo, Lagos. The agent to the container owner was one Onyema.

The truck was intercepted along the Apapa-Oshodi Expressway, and the truck, the driver and the container were arrested by men of the 3rd and 4th Respondents on suspicion of carrying prohibited goods. Upon examination of the container at the warehouse of the 3rd and 4th Respondents, it was found to be loaded with, among other things, 661 pieces of new Automatic Pump Action Rifles concealed with other items. Later, the 3rd and 4th Respondents handed over the truck and the container to the 1st and 2nd Respondents in view of the security implication of the contents of the container.

The Appellants’ efforts to retrieve his seized Mack Truck, as he was not charged with any criminal offence after the conclusion of an investigation by both the Nigerian Customs Service and the State Security Service, met a brick wall. He, therefore, resorted to the Court to enforce his fundamental right through a fundamental right proceeding which he initiated against the Respondents at the Federal High Court, Lagos wherein he sought: “a declaration that the continuing seizure of the Applicant’s Mack Truck with Registration No. BDG 265 XG by the 1st to the 4th Respondents without any disclosed criminal culpability, indictment or/and Court order in respect of same, is wrongful, unlawful, unconstitutional, null and void and an order Court releasing forthwith the said Mack Truck with Registration No. BDG 265 XG to the Applicant.”

Parties joined issues by filing counter-affidavits, further affidavits as well as a preliminary objection. In a considered judgment delivered on 16/03/2018, the trial judge held under the preliminary objection that the 3rd and 4th Respondents are not juristic persons. On the merits of the application, the Court dismissed the Appellant’s action, holding that the seizure of the truck was lawful. Dissatisfied, the Appellant filed an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“1. Whether the Court below was right in holding Exhibit ‘C’ i.e. the information contained any evidence of the Applicant/Appellant’s involvement in a crime and for which sake the Court below justified the continued seizure of the Applicant/Applicant’s truck by the Respondents?

2. Whether the mere suspicion of the Applicant/Appellant’s truck in the carriage of items suspected to be contraband goods was sufficient for its permanent seizure by the Respondents without any obligation on the Respondents to subsequently detain the truck, only in accordance with the law?

3. Whether the Court below was right in holding that the 3rd and 4th Respondents were not juristic persons in the light of the enabling law and provision made under the Fundamental Rights (Enforcement Procedure) Rules, 2009?”

COUNSEL SUBMISSION

Appellant’s counsel submitted that it is only a properly constituted Court or Tribunal that can adjudge a property forfeited and that notwithstanding the provision of Section 44(2)(k) of the Constitution, any abridgement of a fundamental right must be in accordance with the law. He argued that the Respondents ought not to have been justified in holding the Appellant’s truck permanently without charging the Appellant or obtaining a Court order in respect of the truck in compliance with Section 337(1) of the Administration of Criminal Justice Act, relying on Dangaba vs. Federal Republic of Nigeria (2014) 12 NWLR (Pt.1422) Ratio 13.

Furthermore, it was the contention of counsel that there ought to have been a pending case against the Appellant or his truck and that the truck ought to have been held by an order of Court, for there to be any justification for the continued seizure of the truck for over a year as at the time of the judgment of the Court below.

In response, the 1st and 2nd Respondents’ counsel referred to Section 169(a) of the Customs and Excise Management Act and Section 44(2)(a), (b), (k) of the Constitution of the Federal Republic of Nigeria, 1999 to submit that the holding of the truck pending the determination of the ongoing trial was proper.

The 3rd and 4th Respondents’ counsel equally aligned with the submissions of the counsel to the 1st and 2nd Respondents in arguing that the Appellant’s truck was detained for constituting a threat to National security after it was searched and found to be conveying 661 Pump Action Rifles. That the continued detention of the truck is in accordance with the law.

DECISION/HELD:

In conclusion, the appeal was dismissed and accordingly, the judgment of the Federal High Court was affirmed.

RATIO:

​CRIMINAL LAW AND PROCEDURE- CRIMINAL PROSECUTION: Whether investigative and prosecutorial agencies must obtain an order of Court before holding onto the instrument used in the commission of an offence pending the prosecution of the alleged offenders

“The submission of counsel to the Appellant that since the investigation into the cases has been concluded and the truck or its owner were not charged for committing any offence, then it is unlawful for the Respondents to continue with the detention of the truck and erroneous for the lower Court to justify the detention, overlooks the overall importance of the truck and the container it conveyed to the success of the criminal prosecution of the six defendants in Charge No. FHC/L/190C/17. That submission also overlooks the security implication on this country of the importation of 661 prohibited firearms and their concealment and transportation by the Appellant’s truck.

Whether or not the Respondents listed the truck in the list of evidence accompanying the criminal charge is immaterial, because there is no way the truck can be divorced from the ongoing criminal prosecution, being one of the instruments used in the commission of the offence. There is no law that mandates investigative and prosecutorial agencies, like the Customs Service, the Police and the State Security Service to obtain an order of Court before holding onto the instrument used in the commission of an offence pending the prosecution of the alleged offenders. ” Per SIRAJO, J.C.A.