Whether the Comptroller General of the Nigeria Customs Service is a juristic person/legal personality that can sue and be sued

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

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, January 10, 2023

Before Our Lordships

Onyekachi Aja Otisi

Muhammad Ibrahim Sirajo

Adebukunola Adeoti Ibironke Banjoko

Between

MR. IMONIKHE MURTALAAPPELANT(S)

And

1. DIRECTOR GENERAL, STATE SECURITY SERVICE

2. DIRECTOR, STATE SECURITY SERVICE, LAGOS STATE

3. COMPTROLLER GENERAL, NIGERIA CUSTOMS SERVICE

4. AREA COMPTROLLER, NIGERIA CUSTOMS SERVICE FEDERAL OPERATIONS UNIT, IKEJA, LAGOS STATE

5. ATTORNEY GENERAL OF FEDERATION

JUDGEMENT SUMMARY

INTRODUCTION:

This appeal borders on the enforcement of fundamental rights to own movable property.

FACTS:

This is an appeal against the decision of the Federal High Court, Lagos.

The Appellant is a transporter and owner of a 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 where he sought the following reliefs:

1. 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.
2. An order of 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 preliminary objections. In a considered judgment delivered on 16/03/2018, the Federal High Court, Coram: A.O. Faji, J., held under the preliminary objection that the 3rd and 4th Respondents are not juristic persons. 

On the merits of the application, the Federal High Court dismissed the Appellant’s action, holding that the seizure of the truck was lawful.

Peeved by the decision of the Federal High Court, the Appellant appealed to the Court of Appeal.

ISSUES:

The Court of Appeal determined the appeal by adopting the issues formulated by the appellant which are:

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?

DECISION/HELD:

In conclusion, the Court of Appeal dismissed the appeal.

RATIO DECIDENDI

• CONSTITUTIONAL LAW – RIGHT TO ACQUIRE AND OWN PROPERTY – Whether the right to own movable property under the 1999 Constitution is absolute
• COURT – DUTY OF COURT– Duty of the Court to ensure that any interference with the property right of a citizen by governmental bodies is done in compliance with due process of law
• JUDGMENT AND ORDER – ORDER OF FORFEITURE– Who has the power to make an order of forfeiture
• CRIMINAL LAW AND PROCEDURE – CRIMINAL TRIAL/PROCEEDINGS– Whether the prosecution in a criminal trial/proceeding has the liberty to amend the information and serve the proof of evidence on the defendant
• CRIMINAL LAW AND PROCEDURE – CRIMINAL PROSECUTION- Whether investigative and prosecutorial agencies must obtain an order of the Court before holding onto the instrument used in the commission of an offence pending the prosecution of the alleged offenders
• CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S)– Whether the question of infringement of fundamental rights of an individual is a question of fact alone
• CONSTITUTIONAL LAW – BREACH OF FUNDAMENTAL RIGHTS- Whether an arrest made upon the legitimate exercise of power by the Police will amount to a breach of the fundamental right
• ACTION – CAPACITY TO SUE AND BE SUED- Categories of persons who can sue and be sued in law; effect of an action commenced by or against a non-juristic personality on the jurisdiction of the Court
• ACTION – LEGAL PERSONALITY- Whether the Comptroller General of the Nigeria Customs Service is a juristic person/legal personality that can sue and be sued
• CONSTITUTIONAL LAW – BREACH OF FUNDAMENTAL RIGHTS– Whether an arrest made upon the legitimate exercise of power by the Police will amount to a breach of the fundamental right