NIGERIAN CUSTOMS SERVICES BOARD & ORS v. MAGGPIY TRADING TFZE (2020)

NIGERIAN CUSTOMS SERVICES BOARD & ORS v. MAGGPIY TRADING TFZE

(2020)LCN/14535(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, August 20, 2020

CA/A/819/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. NIGERIAN CUSTOMS SERVICES BOARD 2. CHAIRMAN NIGERIAN CUSTOMS SERVICE BOARD 3. NATIONAL SECURITY ADVISER APPELANT(S)

And

MAGGPIY TRADING TFZE RESPONDENT(S)

RATIO

DEFINITION OF AN ORDER

I refer to the case of Maideribe v. State (2014) All FWLR (Pt. 717) 606 at 622 where a circular was used in convicting a person. It was stated there that:
“An Order is defined in Black’s Law Dictionary, 5th Edition at page 988 as a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a Court or Judge made or entered in writing and not included in a judgment. The case of Abubakar v. Bebeji Oil and Allied Products Limited (2007) All FWLR (Pt. 362) 1855, (2007) 18 NWLR (Pt. 1066) 319 at 384 where this Court said an Order contained in a legal notice qualifies as an existing law by virtue of Section 274 (4)(b) of the Constitution of the Federal Republic of Nigeria, 1979 cited and relied upon by the Respondent in support of the argument that the circular Exhibit P. 3 qualifies as an order or legal instrument, does not support the argument of the Respondent because the circular Exhibit P. 3 is not contained in a legal notice and therefore cannot qualify as an Order, Act, Law, Statute or legal instrument issued under Sections 147 or 148 of the Constitution of the Federal Republic of Nigeria, 1999 by the Federal Ministry of Finance. PER AGIM, J.C.A.

THE CONSEQUENCES OF DISOBEYING A COURT ORDER

The stance of the Court on obedience of Court orders has not changed. In Goji v. Ewete (2007) 6 NWLR (Pt. 1029) 72 at 81 as was stated that:
“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. Thus, a party who knows of an order whether null or void, regular or irregular cannot be permitted to disobey it. See Mobil Oil (Nig.) Ltd v. Assan (1995) 8 NWLR (Pt. 412) 129, Ezekiel-Hart v. Ezekiel-Hart (1990) 1 NWLR (Pt. 126) 276; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Shugaba v. U.B.N Plc (1999) 11 NWLR (Pt. 627) 459.”
The consequences of disobeying orders of Court are grave and no Court will sweep such under the carpet. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/819/2019 was commenced on 16-8-2019 when the appellants herein filed a notice of appeal against the judgment of the Federal High Court delivered in suit No. FHC/CA/CS/40/2017 on 10-7-2019 by I.E. Ekwo J. The notice of appeal contains 9 grounds of appeal.

The parties herein have filed, exchanged and adopted their respective briefs as follows: appellants’ brief and respondent’s brief.

The appellant’s brief raised the following issues for determination-
1. Whether in the circumstances of this case, the Learned Trial Judge was right to have given judgment in favour of the Respondent?
2. Whether the Learned Trial Judge was right in the face of the law and available evidence to hold that the Appellants failed to controvert the Respondent’s case at trial?
3. Whether the Learned Trial Judge was right to raise and determine suo moto the issue that the circulars tendered by the Appellants are more administrative documents without any legal effect without affording the Appellants the opportunity to be heard on the issue?

Whether the Learned Trial Judge was right to hold that the circulars and tenders by the Appellants are mere administrative documents without any legal effect?
5. Whether in the face of the law and available evidence the Court below was right to hold that the Appellants did not establish that the Respondent was involved in smuggling activities?
6. Whether the Court below was right in the circumstances of this case to hold that the Appellants officers are not exonerated from legal liabilities and prosecution by the provisions of Section 158(2) of the Customs and Excise Management Act for sealing off the Respondent’s warehouse located at buffer zone in Tinapa Free Zone and Resort?
7. Whether in the circumstances of this case, the learned trial judge was right to have awarded any damages at all in favour of the Respondents?

The respondent’s brief raised the following issues for determination –
1. Whether the Learned Trial Judge was not right in holding the 1st and 2nd appellants liable and responsible for disobedience of the orders of Court for the sale of the rice stored in the warehouses the proceeds of which were to be

forfeited to the Federal Government of Nigeria in the event of the dismissal of the Respondent’s claims. (Distilled from ground 4 of the Grounds of Appeal).
2. Whether the learned trial Judge was not right in holding that the Tinapa Free Trade Zone and Resort is not a Custom Territory and accordingly that the entry and sealing up by the Appellants of the Respondent’s warehouses therein was illegal and their officers not accorded any protection whatsoever in respect thereto under the Customs and excise Management Act, 2004? (Distilled from ground 2 of the Grounds of Appeal).
3. Whether the learned trial Judge was not right when he held that the Appellants had not proved the allegation of smuggling levelled against the Respondent? (Distilled from ground 3 of the Grounds of Appeal).
4. Whether the learned trial Judge was not right when, having found the case of the Respondent proved, he awarded special and general damages against the Appellants? (Distilled from grounds 5 and 6 of the Grounds of Appeal).
5. Whether the Appellants led any credible and admissible evidence to controvert the case of the Respondent? (Distilled from

ground 7 of the Grounds of Appeal).
6. Whether the resolution by the Trial Court of the contentions by the parties on the circulars tendered by the Appellants, amounts to a denial of fair hearing, circulars which in any case, were not issued pursuant to any order, Act, law or Statute. (Distilled from grounds 1 and 8 of the Grounds of Appeal).

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

I will now determine issues Nos. 1, 2 and 5 together as they are substantially the same. The issues ask:
1. Whether in the circumstances of this case, the Learned Trial Judge was right to have given judgment in favour of the Respondent?
2. Whether the Learned Trial Judge was right in the face of the law and available evidence to hold that the Appellants failed to controvert the Respondent’s case at trial?
5. Whether in the face of the law and available evidence the Court below was right to hold that the Appellants did not establish that the Respondent was involved in smuggling activities?

I have carefully read and considered the arguments of both sides on these issues.

The respondent’s case in its pleadings and evidence as plaintiff at the trial Court is that it is an enterprise duly licensed to operate at the Tinapa Free Trade Zone and Resort (hereinafter referred to as TFTZR), Calabar, Cross River State and it has as its primary place of business, Line Shop D-1, Tinapa Free Trade Zone and Resort (TFTZR), Calabar, Cross River State, that on 18th March, 2017, Officers of the 1st and 2nd Defendants invaded the Tinapa Free Trade Zone and Resort (TFTZR) and sealed off its warehouses containing about 90 containers worth of rice at 540 bags per container, after officers of the 1st and 2nd defendants had assessed the duty payable, that indeed it paid a total sum of N53,000,000 (Fifty Three Million Naira) as duties two days before the Defendants sealed off its warehouses, that the Defendants have also refused to accede to the Plaintiff’s demand to refund the sum of N53,000,000 (Fifty Three Million Naira) paid as duties in their favour in view of the sealing off of its warehouses, that the importation of the rice stored in the warehouses sealed off and their transportation to the Tinapa Free Trade Zone and

Resort (TFTZR) did not violate any law, rule or regulation either of the Free Trade Zone or of the 1st and 2nd Defendants, that out of the 90 containers worth of rice in the sealed warehouses valued at N900,000,000.00 (Nine Hundred Million Naira), the respondent reasonably suspects that 30 containers of rice worth N300,000,000 (Three Hundred Million Naira) have been damaged due to prolonged sealing off of the warehouses, that in addition to the malicious and illegal sealing off of its warehouses and theft of some containers of its rice, Officers of the 1st and 2nd Defendants without any legal justification whatsoever unilaterally detained by the road side at Onne, Port Harcourt, 40 trucks containing 317 Transit Containers of rice destined for the Tinapa Free Trade Zone and Resort (TFTZR) earlier released by them, that these 40 trucks, were abandoned by Customs by the road side at Onne, Port Harcourt for more than 120 (one hundred and twenty) days, that on 30th March, 2017 (i.e., about two weeks after the detention of the Trucks), the 1st and 2nd Defendants issued a circular declaring that Free Trade Zones are now to be regarded as “Land Boarders, that the

circular is inconsistent with the Law in that Free Trades Zones are ‘countries within countries’ and that even if the circular in issue were valid, it still would not prevent the importation of rice into Free Trade Zones, same being outside of the regulatory competence of the Defendants, that in the light of the enormous economic loss occasioned by the detention of its 317 containers of rice and the sealing off of its warehouses, it reached out to the leadership of the 1st and 2nd Defendants which conceded that it is not in breach of the law in any way and promised on several occasions to release the trucks for onward journey to its destination, yet refused and or neglected to do so, that both the Management of the Tinapa Free Trade Zone and Resort (TFTZR) and the Nigerian Export Free Zones Authority (hereinafter referred to as NEPZA) which is the body statutorily charged with control and regulations of Free Trade Zones in Nigeria, also made repeated pleas to the Defendants for the release of the containers yet it refused to heed same, that in the letter from Nigerian Export Free Zones Authority (NEPZA) to the 1st and 2nd defendants, the authority

stated that the Plaintiff’s importation of rice into Tinapa Free Trade Zone and Resort through the Onne Sea Port and their subsequent sale, is legal and in fact under the watch of the 1st and 2nd Defendants who introduced Notice of Duty Forms through which they collect appropriate duties, that in the wake of the demands from both the Management of the Tinapa Free Trade Zone and Resort (TFTZR) and the Nigerian Export Free Zones Authority (NEPZA) the 1st and 2nd Defendants on 31st May, 2017 (about three (3) months after the detention of the rice containers) via a letter dated 25th May, 2017, invited it to their Port Harcourt office for a discussion on the transfer of the detained trucks and the conveyance of the rice stored therein to the Tinapa Free Trade Zone and Resort (TFTZR), that at that meeting the 1st and 2nd Defendants rather than discuss the release of the trucks and their conveyance to the Tinapa Free Trade Zone and Resort (TFTZR) as indicated in the letter rather directed the Plaintiff to re-export all the 317 containers of rice out of Nigeria directly from Onne Sea Port, that on 21st June, 2017, the respondent caused its Solicitors to write to

the Honourable Attorney-General of the Federation, making several demands for his intervention in the matter, that the letter yielded no positive result, rather, the Defendants through a letter backdated to 19th June, 2017 told the Plaintiff that the order for re-exportation of the container of rice was from the 3rd Defendant and assured the Plaintiff that it will ensure an unconditional waiver of the demurrage and other ancillary charges and penalties accrued on the 317 containers on account of their detention by Customs Service, but this was not done, that the total value of the 317 containers of rice detained by the defendants and compulsorily re-exported, stands at $4,796,550 (Four Million, Seven Hundred and Ninety Six Thousand, Five Hundred and Fifty US Dollars) and that with the period of 120 days, it incurred a total of N134,768,735.00 (One Hundred and Thirty Four Million, Seven Hundred and Sixty Eight Thousand, Seven Hundred and Thirty Five Naira) as West African Container Terminal (WACT), Maersk, CMA-CGM charges and demurrage, that it also paid the sum of $162,400 (One hundred and Sixty-Two Thousand Four Hundred Dollars) as freight for the

re-exportation of these containers of rice, that the Truck drivers conveying the detained 40 transit containers from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR) were paid a total of N10,000,000 (Ten Million Naira) as demurrage at the rate of N250,000.00 (Two Hundred and Fifty Thousand Naira) per truck, that on 28th July, 2017 the Plaintiff complied with the directive for the re-exportation and re-exported the rice outside of Nigeria to Benin Republic at great financial loss afore-stated, that at the arrival of the re-exported containers of rice in Cotonou, they were unsealed and found to have been spoilt thereby occasioning complete loss, that in a bid to ensure that its warehouses were unsealed and containers of rice released or demurrage and other ancillary charges on them waived as promised by the Defendants, its staff, investors, business partners and solicitor kept travelling from Calabar to the headquarters of the 1st and 2nd Defendants in Abuja, that on each occasion, its staff, agents and counsel travelled by Air and lodged in hotels thus accumulating avoidable expenses, that due to the sealing off of its warehouses, illegal detention of

the trucks at Onne Sea Port and the forceful re-exportation of 317 containers of rice, the Plaintiff has suffered tremendous decline in business fortune and loss of profits.

The case of the 1st and 2nd appellants as 1st and 2nd defendants in their pleading and evidence is that the plaintiff in breach of the Federal Government Fiscal Policy on the importation of any physical goods into Nigeria illegally imported 317 containers (20-foot) of rice through Onne Sea Port in Rivers State and transited 90 containers (20-foot) of same to Tinapa Free Trade Zone and Resort (TFTZR), that the 317 containers (20-foot) of rice were meant to be taken out of Onne Sea Port without payment of Customs Duty and Documentation to Tinapa Free Trade Zone and Resort (TFTZR) through customs transit procedure, that the 90 containers of rice (20-foot) that were transited from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR) were meant for sale and consumption within the Tinapa Free Trade Zone and Resort (TFTZR) area and were not to be exported from Tinapa Free Trade Zone and Resort (TFTZR) to Nigeria through Calabar Area Land Border, that about 90 containers (20-foot) of

rice were transited from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR) and were discharged in the plaintiff’s warehouse, that the total bags of rice discharged from the aforesaid 90 containers of (20-foot) were about 46,800 bags, that the plaintiff in flagrant breach of the Revised Import Guidelines, Procedures and Documentation Requirements illegally paid customs duty in the sum of Fifty Three Million Naira (N53,000,000.00) to cover about 11,000 bags of rice, that rather than retail and/or sell bags of rice within Tinapa Free Trade Zone and Resort (TFTZR), the Plaintiff illegally and in flagrant breach of the Federal Government Fiscal Policy on ban on importation of rice through its land Borders, smuggled the bags of rice into Nigeria through the Calabar Area Land Border, that upon the discovery that the Plaintiff had been smuggling the bags of rice into Nigeria from its warehouse in Tinapa Free Trade Zone and Resort (TFTZR), the Federal Government of Nigeria stopped further transit of the remaining containers of rice from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR) and directed the Plaintiff to export the remaining

containers of rice out of Onne Sea Port, that the Federal Operations Unit of the Nigeria Customs Service went into Tinapa Free Trade Zone and Resort (TFTZR) and sealed up the Plaintiff’s warehouse with a view to stopping further acts of smuggling the bags of rice into Nigeria through Calabar Area Land Border, that the Plaintiff’s sole purpose of transiting the containers of rice from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR) was to smuggle or illegally export same to Nigeria through the Land Borders of Calabar Area in flagrant violation of the ban on importation of rice through Land Borders, that the Plaintiff does not own any Rice Mill, factory or industry in Tinapa Free Trade Zone and Resort (TFTZR) by which the bags of rice grain could be processed and/or be converted to a product of different kind in form and texture rather than bags of par-boiled rice grain, that the Plaintiff’s acts of smuggling and/or illegally exporting the bags of par-boiled rice grain in the same form and texture it was discharged from the containers to its warehouse in Tinapa Free Trade Zone and Resort (TFTZR) was a calculated act to undermine the

Federal Government Fiscal Policy on Food Security, which is meant to encourage the Local Production of rice and the ban on importation of rice through Land Border in Nigeria, that the Federal Operation Unit of the Nigeria Customs Service caught and arrested many trucks transporting bags of foreign parboiled rice from Calabar Area Land Borders (Tinapa) into other nearby States in Nigeria, that upon inquiry and investigation by the aforesaid Federal Operation Unit of the Nigeria Customs Service, the Plaintiff was mentioned as the sole supplier and source of the bags of rice being transported, thus necessitating the Federal Operation Unit of the Nigeria Customs Service to take steps to seal the Plaintiff’s warehouse in Tinapa Free Trade Zone and Resort (TFTZR) to checkmate and/or stop further smuggling and or illegal exportation of foreign parboiled bags of rice through the Calabar Area Land Border, that the plaintiff’s importation of the purported 317 (20-foot) containers of rice into the Onne Sea Port and the transit of 90 containers (20-foot) to Tinapa Free Trade Zone and Resort (TFTZR) was done mala fide and with fraudulent intention to violate

the Federal Government Fiscal Policy on importation of rice through Land Borders in Nigeria and Revised Import Guidelines, Procedures and Documentation Requirements, that the particulars of fraud by the Defendants are that the plaintiff did not comply with the guideline policy for importation of any physical goods in Nigeria before ab initio importing the containers of rice and transiting 90 containers (20-foot) to Tinapa Free Trade Zone and Resort (TFTZR) and did not raise Form E – M in compliance with the Guidelines, Procedures and Documentation Requirements for the importation of any physical goods in Nigeria, that the purported payment of Fifty Three Million Naira (N53,000,000.00) as customs duty covering 11,000 bags of rice was to enable it smuggle and/or illegally export the foreign par-boiled bags of rice into Nigeria through the Calabar Area Land Border in flagrant breach of the Revised Import Guidelines, Procedures and Documentation Requirements and the ban on importation of rice by land border, that the Plaintiff does not own any rice mil, factory or industry within the Tinapa Free Trade Zone and Resort (TFTZR) to process and change the form or kind

of foreign par-boiled bags of rice that were transited from Onne Sea Port to Tinapa Free Trade Zone and Resort (TFTZR), that the plaintiff is quite aware that the population of residents in Tinapa Free Trade Zone and Resort (TFTZR) cannot howsoever and whatsoever consume and/or finish the 46,800 bags of foreign parboiled rice in its warehouse in the next 5 years, thus smuggling and/or illegally exporting same into Nigeria was the sole purpose of transiting the rice into Tinapa Free Trade Zone and Resort (TFTZR), that the plaintiff’s allegation that the bags of rice were damaged by the act of the Defendants is false, that the Plaintiff’s failure to take further steps to export the remaining containers of rice yet to be transited to Tinapa Free Trade Zone and Resort (TFTZR) out of none Seaport when the Federal Government ordered same to be exported was the reason why the containers of rice over stayed in Onne Sea Port area, that the Defendants averred that since the Plaintiff’s warehouse at Tinapa Free Trade Zone and Resort (TFTZR) were unsealed in compliance with the order of this Court and the defendants guarding and securing its Calabar

Area Land Border, that the Plaintiff has been unable to smuggle and/or illegally export the foreign parboiled bags of rice into Nigeria as usual, that the inability of the Plaintiff to sell or retail the rice within Tinapa Free Trade Zone and Resort (TFTZR) was because the community within ‘Tinapa Zone’ cannot consume the quantity of rice in the next five years and it is only by smuggling and/or illegally exporting same through Calabar Area Land Border that the Plaintiff can sell off such quantity of rice, that the plaintiff neither paid any customs duty or levy at Onne Sea Port nor were the bags of rice checked to ascertain the quality or otherwise by the Customs and other Agencies of the Federal Government operating at the Onne Sea Port because the containers were on Customs Transit Procedures to Tinapa Free Trade Zone and Resort (TFTZR), that the Plaintiff is not entitled to any claim for damages as contained in its Writ of Summons and Statement of Claim.

After considering the pleadings, evidence and the addresses of both sides, the trial Court in its judgment held inter alia that- “As it is, both sides have agreed with evidence

consistent that the Tinapa Free Trade Zone and Resort (TFTZR) is not a custom territory being a ‘country within a country’. The 1st and 2nd defendants have not denied that they entered the Plaintiff’s warehouses located in Tinapa Free Trade Zone and Resort (TFTZR) and sealed it up and in the course of sealing and unsealing stocks were taken in the joint presence of the plaintiff and agents of the Defendants and the Defendants have not denied that specified bags of 25 and 50kg Indian parboiled rice were discovered to have been stolen from the Plaintiff’s warehouses and this happened in the course of this proceeding. I will come to this later.
I must state at this point that in the course of this proceeding, this Court made two intervening orders in order to mitigate the eventual damages in this case. These orders were made because the goods involved were perishable in nature and therefore would not be in good condition by the time this case is eventually determined. The first order was made on 15th December, 2017 when this Court ordered the plaintiff to execute a Bank Guarantee from a reputable Bank for the sum of N100,000,000.00

(One Hundred Million Naira) in favour of the Federal Government of Nigeria and the sum so guaranteed to be forfeited to the Federal Government of Nigeria in the event that the order ought not to have been made and the 1st and 2nd defendants were to unseal the warehouse of the plaintiff for it to evacuate the rice. The plaintiff complied but the 1st and 2nd Defendants refused to comply with the order. The Court had to discharge that order on 19th March, 2018 because of non-compliance by the 1st and 2nd defendants. Again, this Court still considering the interest of justice in this matter made another order on 27th June, 2018 for the warehouse of the Plaintiff to be unsealed and the Plaintiff allowed to dispose of the rice and the proceeds thereof deposited into an interest yielding account pending the determination of the case. Again, the 1st and 2nd Defendants refused to comply with the order.
Now, the case of the 1st and 2nd Defendants is that the Plaintiff in the importation of the rice and bringing same into the Tinapa Free Trade Zone and Resort (TFTZR) was in flagrant disobedience of Page 1 – 10 of Exh. DW1-A which is titled ‘Federal

Ministry of Finance Importation Guidelines, Procedures and Documentation Requirements under the Destination Inspection Scheme in Nigeria’. I have studied this document to find where it is not made applicable to Free Trade Zones or the Tinapa Free Trade Zone and Resort (TFTZR) which both parties have agreed as being a ‘country within a country’ that is, a commercially independent territory, and found none. I am unable to attach any probative value to it. Again, the said document is unsigned which makes it inadmissible in evidence ab initio. At this point, I must pause to hold that the document titled ‘Federal Ministry of Finance Importation Guidelines, Procedure and Documentation Requirements under the Destination Inspection Scheme in Nigeria’ is an unsigned document that is not admissible in this case. It is hereby rejected on that account.
The 1st and 2nd defendants also relied on Circular No. 047/2014 titled ‘Re-Allocation of Rice Quotas Under New Policy’ dated 23rd December, 2014, that is, page 11A of Exh. DW1-A. In the written address of the learned Counsel of the 1st and 2nd Defendants, he posits that

Circulars Nos: 003/2011 of 28th January, 2011, T and T 2016/005 of 18th March, 2016 and T and T 2017/011 of 30th March, 2017, that is, pages 14, 15, 16, 17, 21A, and 21B of Exh. DW1-A clearly state that the importation of rice is restricted to the Sea Ports only.
It must be stated here that none of the circulars relied upon by the 1st and 2nd Defendants have any retrospective effect. Therefore, any of the circulars relied upon made after the plaintiff had imported the rice into the Sea Port and escorted through the land border to another Sea Port by the officers of the 1st and 2nd Defendants on 18th March, 2017 do not apply to this case. Therefore page 16 of Exh. DW1-A does not apply here.
Furthermore, page 15 of Exh. DW1-A restricts importation of rice to the Sea Ports and same with Pages 17 and 21A thereof. These pieces of evidence support the case of the Plaintiff more than they do of the 1st and 2nd Defendants’ case and I so hold.
However, I need to determine what the value of a circular is in law as the learned Silk of Counsel for the 1st and 2nd Defendants has made rather heavy weather of the circulars he relies upon. I refer to the

case of Maideribe v. State (2014) All FWLR (Pt. 717) 606 at 622 where a circular was used in convicting a person. It was stated there that:
“An Order is defined in Black’s Law Dictionary, 5th Edition at page 988 as a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a Court or Judge made or entered in writing and not included in a judgment. The case of Abubakar v. Bebeji Oil and Allied Products Limited (2007) All FWLR (Pt. 362) 1855, (2007) 18 NWLR (Pt. 1066) 319 at 384 where this Court said an Order contained in a legal notice qualifies as an existing law by virtue of Section 274 (4)(b) of the Constitution of the Federal Republic of Nigeria, 1979 cited and relied upon by the Respondent in support of the argument that the circular Exhibit P. 3 qualifies as an order or legal instrument, does not support the argument of the Respondent because the circular Exhibit P. 3 is not contained in a legal notice and therefore cannot qualify as an Order, Act, Law, Statute or legal instrument issued under Sections 147 or 148 of the Constitution of the Federal Republic of Nigeria, 1999 by the Federal Ministry of Finance.

In Administrative Law Book, 8th Edition, co-authored by Professor W. Wade and C. Forsyth at page 851, it throws light on the status of department circulars generally. Such circulars are:
“a common form of administrative document by which instructions are disseminated…Many such circulars are identified by serial numbers and published and many of them contain general statements of policy….They are therefore of great importance to the public, giving much guidelines about governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatsoever, having no statutory authority.
In the present case therefore, the circular Exhibit P.3 with serial number F.15775 is no more than a mere administrative document by which the Federal Ministry of Finance conveyed financial instruction on Federal Government new policy guidelines for procurement and award of contracts in Federal Government Ministries and Parastatals. Since on the face of the circular, it was not shown to have been issued under an Order, Act, Law or Statute, in the absence of statutory authority as contained in a legal

notice, it cannot be said to have any legal effect to justify finding the appellant guilty of offence under Section 203 of the Criminal Code Law of Lagos State for the alleged disobedience to the said circular Exhibit P.3, constituted the offence under Section 203 of the Criminal Code Law of Lagos State. The conviction and sentence passed on the appellant’s appeal and his discharge and acquittal.”
I have to state before proceeding that a circular has the same evidential value whether in criminal or civil cases. Therefore for any circular to be enforceable by the Court, as the 1st and 2nd defendants are seeking to be done in this case, it must be established that such was issued under an Order, Act, Law or Statute or that it is contained in a legal notice. No such evidence was led in this case by the Defendants. This means the entire case of the 1st and 2nd Defendants founded on Exh. DW1-A which is a compilation of series of documents they refer to as circulars has failed the evidential burden of demonstrating that the said circulars were issued pursuant to an Order, Act, Law or Statute or that each or any of them is contained in a legal notice.

As stated in Maideribe v. State (supra), these documents are mere administrative documents without any legal effect and I so hold. As it is, the defence of the 1st and 2nd defendants merely predicated on the circulars in Exh. DW1-A has collapsed.
Now, let us head to the law relied upon by the 1st and 2nd Defendants. The learned Silk of Counsel for the 1st and 2nd Defendants has also sought to capitalize on the provisions of S.158(2) of the CEMA 2004 by positing that the provisions thereof has exonerated any officer engaged in enforcing Customs and Excise Laws from legal liabilities and prosecution. This position will hold true if such officers acted with the bounds of the CEMA 2004. It has not been shown to this Court, the provisions of the CEMA 2004 that authorizes any of its officers to enter and seal up the business premises in a Free Trade Zone or TFTZR in particular. In that case, the foray of the officers of the 1st and 2nd Defendants into the territory of the TFTZR which is not a territory of the 1st and 2nd Defendants and which was not to enforce or implement the provisions of the Nigeria Export Processing Zones Act, Cap. N107, LFN 2004, or any

regulation thereof, was an illegal and unlawful venture. No person can seek the protection of the law when such a person acted in breach of the law. Therefore, this argument goes to naught.
Again, the defence of the 1st and 2nd defendants that the Plaintiff was importing its rice through land border is questionable. The said containers were merely being transported on land from Onne Sea Port to TFTZR. The containers were therefore in transit between one Sea Port and another and being in transit cannot be equated to land border importation and I so hold.
In furtherance of the defence of the 1st and 2nd defendants, it is resonated in paragraphs 3.2, 3.3, 3.5, 3.9, 3.10, 3.19, 3.20, 3.23, 3.26, 3.30, 3.31, 3.32, 3.33, 3.37, 3.38, 3.39, 3.41, 3.44 and 3.46 that the Plaintiff was involved in the business of smuggling of rice. No evidence of smuggling was led before this Court. The DW1 made reference to smuggling but no evidence was led to establish same. I have to agree with the submission of the learned Counsel for the Plaintiff that smuggling is a criminal offence and there is no evidence of conviction of the Plaintiff by the 1st and 2nd Defendants.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Another intriguing act of the 1st and 2nd Defendants during the pendency of the proceedings in this case, is the discovery when stocks were taken upon the unsealing of the wares houses of the Plaintiff by the 1st and 2nd Defendants for stock-taking that 19421 50KG bags of Indian and Thai Rice and 1639 25kg bags of Indian Rice had been pilfered by officers of the 1st and 2nd Defendants. The 1st and 2nd Defendants proffered no defence on this issue nor countered the evidence of the Plaintiff on it. This in my opinion, is a brazen act of treating the proceedings of Court with contempt apart from the reprehensible theft that the act represents. There is no option than for the 1st and 2nd Defendants to be held accountable for the pilfering.
On the whole, I have not seen where the 1st and 2nd Defendants have controverted the case of the Plaintiff throughout the course of the proceeding. They have failed to controvert any of the documentary evidence contained in Exh. PW1-A. The emphasis that the Plaintiff was licenced to trade in food and beverages at the TFTZR therefore ought not to engage in importation of rice is in my view infantile. This is an attempt to

distinguish between rice and food. It is tantamount to hair-splitting and does the 1st and 2nd Defendants no good. It is in this sense that I say that the 1st and 2nd Defendants having not effectively controverted the case of the Plaintiff are deemed to have admitted same. The law is trite that evidence that is relevant to the issue in controversy that is not successfully challenged, contradicted, and discredited is good and reliable evidence to which probative value ought to be ascribed and, which ought to influence the Judge in the determination of the case before it.
I have done this by placing the evidence of the Plaintiff through the testimonies of PW1 and Exh. PW1-A tendered by him, PW2 and Exh. PW2-A tendered by him, PW3, PW4 and PW5 against the evidence of the 1st and 2nd defendants through the testimony of DW1 and Exh. DW1-A tendered by him. I find in so doing that the quantum of the evidence of the Plaintiff far outweighs that of the 1st and 2nd Defendants. I also find that the evidence of the Plaintiff is believable in all material particular against that of the 1st and 2nd Defendant. I therefore and hereby place probative value on the evidence

of the plaintiff and hold that the plaintiff has proved its case on preponderance of evidence required in civil cases. I also find that the plaintiff has made a case upon the evidence adduced in this case for their reliefs 1, 2 and 3, 4 and 5 and 6 to be upheld. Their relief 7 is consequential in nature. Since the main reliefs have succeeded, I find that relief 7 is grantable and I so hold.
Before I wind up, I must say something about disobedience of the orders of this Court by the 1st and 2nd Defendants under the watch of their learned Counsel. Two things I have to say on this.
First is as stated in Comm. Bank Credit Lyonnais v. Unibiz (Nig) Ltd. (2000) 9 NWLR (Pt. 673) 491 a 499 that when positive order of the Court is flouted, it is the Court that is unduly taunted. When lawyers who are minsters in the Temple of Justice plough their expertise in support and justification of litigants as they want only disobey the orders of Court and disparage effort of the Court to enforce law and order and mitigate eventual damages during the pendency of an action, they should know that anarchy shall be abundant in the harvest at the end of the day.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Secondly is the admonition of Tobi, JCA (as he then was) in Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 641 at 676 (concerning the professionalism of Ezeako, SAN). The learned Jurist stated thus:
“Although counsel owes his client duty to defend the case to the best of professional ability, he equally owes him the duty not to expose him to unnecessary litigation that could result in waste of time and money.
This is what has happened in this case.
The reasons given for the disobedience of the order was that the 1st and 2nd Defendants were acting based on the circulars which they tendered in Exh. DW1-A. The question then is; are these circulars above the law or the orders of this Court? I must state that the effort of the 1st and 2nd Defendants and their Counsel to attempt to elevate the said circulars above the law or orders of Court is aberrant and must be condemned and I so do.
The stance of the Court on obedience of Court orders has not changed. In Goji v. Ewete (2007) 6 NWLR (Pt. 1029) 72 at 81 as was stated that:
“It is the plain and unqualified obligation of every person against or in respect of whom an order is

made by a Court of competent jurisdiction to obey it unless and until that order is discharged. Thus, a party who knows of an order whether null or void, regular or irregular cannot be permitted to disobey it. See Mobil Oil (Nig.) Ltd v. Assan (1995) 8 NWLR (Pt. 412) 129, Ezekiel-Hart v. Ezekiel-Hart (1990) 1 NWLR (Pt. 126) 276; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Shugaba v. U.B.N Plc (1999) 11 NWLR (Pt. 627) 459.”
The consequences of disobeying orders of Court are grave and no Court will sweep such under the carpet.
Having said all that, I enter judgment for the Plaintiff against the 1st and 2nd Defendants as no case has been made against the 3rd Defendant throughout the length and breadth of the case.”

A careful reading of this judgment and the grounds of appeal, show that the appellants’ did not complain against certain findings and holdings in the judgment that are vital to the success or failure of the complains in the grounds of this appeal and the issues distilled from them for determination. Learned Counsel for the respondent has highlighted a number

of those findings and holdings. Let me consider such decisions, findings and holdings as they affect this appeal. The determination of the merits of the issues raised for determination in this appeal must have regard to them.
That there is no ground of this appeal against the part of the judgment that reads thusly- “Now, the case of the 1st and 2nd Defendants is that the Plaintiff in the importation of the rice and bringing same into the Tinapa Free Trade Zone and Resort (TFTZR) was in flagrant disobedience of Page 1 – 10 of Exh. DW1-A which is titled ‘Federal Ministry of Finance Importation Guidelines, Procedures and Documentation Requirements under the Destination Inspection Scheme in Nigeria’. I have studied this document to find where it is not made applicable to Free Trade Zones or the Tinapa Free Trade Zone and Resort (TFTZR) which both parties have agreed as being a ‘country within a country’ that is, a commercially independent territory, and found none. I am unable to attach any probative value to it. Again, the said document is unsigned which makes it inadmissible in evidence ab initio. At this point, I must

pause to hold that the document titled ‘Federal Ministry of Finance Importation Guidelines, Procedure and Documentation Requirements under the Destination Inspection Scheme in Nigeria’ is an unsigned document that is not admissible in this case. It is hereby rejected on that account.”
By not appealing against these holdings, the appellant accepted them as correct, conclusive and binding and therefore cannot validly and competently argue contrary to them.
As correctly found by the trial Court, the entire defence of the appellants was founded on Exhibit DW1-A which is a compilation of series of documents referred to as circulars. The result of the rejection of that exhibit as evidence by the trial Court in its judgment is that the appellant’s defence collapsed.
The appellants having accepted as correct, conclusive and binding, the holding of the trial Court that Exhibit DW1-A being unsigned is not admissible evidence and the trial Court’s rejection of it as evidence, issues Nos. 1, 2, and 5 and the arguments of same are invalid and incompetent. In other words, having accepted the holding that the bundle of documents

upon which their entire defence was based is not legally admissible evidence, it is incongruous, invalid and incompetent to contend as they have done in issues 1, 2 and 5 that the trial Court was wrong to have held on the evidence that they failed to controvert the respondent’s case and should not have given judgment in favour of the respondent. This position also results from their acceptance of the finding of the trial Court that there is nothing in Exhibit DW1-A that make them applicable to Free Trade Zones or Tinapa Free Trade Zone and Resort (TFTZR), which both parties agree is a commercially independent territory (a country within Nigeria). See Iyoho v. Effiong (2007), Dabup v. Kolo (1993) 12 SC, Awote v. Owodunni (1986) LPELR – 660 (SC), Biariko & Ors v. Edeh-Ogwuile & Ors (2001) 4 SC (Pt. 11) 96 and Sparkling Breweries Ltd & Ors v. Union Bank of Nigeria Ltd (2001) 7 SC (Pt 11) 146.
There is no ground of this appeal complaining against the finding of the trial Court that “the evidence of the plaintiff is more believable in all material particulars against that of the 1st and 2nd defendants. I therefore and hereby

place probative value on the evidence of the plaintiff”. There is no ground of this appeal contending that the belief is perverse or unreasonable. The omnibus ground of appeal in ground 9 of the notice of appeal that the judgment is against the weight of the evidence is not a valid complain against a specific finding of fact, particularly the decision of a trial Court disbelieving or believing a particular evidence. Such a finding or decision can only be validly complained against in an appeal by a distinct ground of appeal that identifies and isolates that finding or decision for attack. An appellant cannot rely on a general ground of appeal that the entire judgment is against the weight of evidence to argue against the finding or decision of the trial Court on such specific issues. The Supreme Court has restated the law on this point in several of its decisions. As held by the Supreme Court in Akinlagun & Ors v. Oshoboja & Anor (2006) 5 SC (pt. 11) 100, an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact. It is for this reason

that the legitimate complain in the general ground is limited to the appraisal of the evidence and not on finding or non finding of a specific fact or issue can only be raised by a substantive ground of appeal. This restatement was made by the Apex Court in Osolu v. Osolu & Ors (2003) 6 SC (Pt. 1).
By not appealing against the said finding and decision, the appellant accepted it as correct, conclusive and binding. Having accept as correct, conclusive and binding the finding that evidence of the plaintiff is believable than that of the defendants, it would be incongruous and invalid to argue that the trial Court was wrong to have held that the defendants, appellants herein failed to controvert the respondents’ case and that the trial Court was wrong to have given judgment in favour of the plaintiff, respondent herein. In any case, the appellant did not argue or even suggest in this appeal that the said finding and decision of the trial Court is perverse or unreasonable.
There is also no ground of this appeal complaining against the holding of the trial Court that the circulars in Exhibit D1-A do not have retrospective effect and that

“therefore any of the said circulars made after the plaintiff had imported the rice into the sea port and escorted through the land border to another sea port by the officers of the 1st and 2nd defendants on 18th March, 2017 do not apply to this case”. By not appealing against this holding, the appellants accepted it as correct, conclusive and binding upon them. They had accepted as correct and conclusive the holding of the trial Court that their entire defence is predicated on these circulars and have also accepted as correct and conclusive the trial Court’s holding that the circulars were made after the rice in question had been imported and therefore were inapplicable to the said import. This is a further reason for the invalidity and incompetence of issues Nos. 1, 2 and 5 and the arguments of same.

Learned Counsel for the 1st and 2nd appellants argued that the Respondent was allowed to transit the containers of rice as a raw material for it to add value, quality and convert them to other food products before exporting same, that however the Respondent does not have any factory or eatery outlet in Tinapa Free Zone and Resort, that

therefore the several metric tons of containers of rice it transited free of customs duties and regulation were sold to its customers in Nigeria in 50kg and 25kg bags and same were supplied by smuggling them through road by Calabar land border in flagrant breach of Section 25(3) & (4) of Custom and Excise Management Act, Regulation 49(3),(1) & (2) of the 2nd Schedule of Tinapa Free Zone & Resort Regulations 2009, the Extant Federal Government Fiscal Policy on Import & export guidelines procedures and documentation requirement under Destination Inspection Regime and the ban on importation of rice through land border, that the Learned trial judge was wrong when it held that the appellants were not able to controvert the Respondent’s case and prove that the Respondent was involved in smuggling activities, that documentary evidence for example, the Waybills and Packing Lists the respondent issued to its customers show that the Respondent supplied several thousand metric tons of rice to various destinations of its customers in Nigeria by road through Calabar land border in breach of importation of rice through land border, that neither the

Respondent nor any of its customers that it supplied in Nigeria were allocated any quota to import rice into Nigeria as required by the Allocation of Rice Import Quotas Under New Rice Policy still in force as at 2016 till date, that under the guidelines for importation for Physical goods in Nigeria, it is the importer who wishes to import goods from Tinapa Free Zone and Resort that should raise Form ‘M’ and pay the necessary Customs duty and other charges as required, that the evidence of payment customs of duty for rice at Eco-Bank Calabar branch show that it is the respondent that paid the customs duty and not the importers of the said rice that was shipped by road as shown in the packing lists, that the Respondent at Tinapa Free Zone and Resort is known as “Exporter” and in Nigeria the Respondent is also the Importer as shown in the face of the Ecobank “NCS pay direct of payment of acknowledgment” in the pages under reference above, that the Respondent acted as the importer and exporter at the same time in the same transaction which is a breach of the Guidelines on Importation of Physicals Goods into the country and the

obvious provisions of Regulation 49(3) (1) & (2) of the 2nd Schedule of Tinapa Free Zone and Resort Regulation 2009 and Section 25 (3) & (4) of the Customs and Excise Management Act, that the circulars which restricted the importation of rice to Sea Ports only were all issued before the Respondent were licensed to operate at Tinapa as a business concern contrary to the findings of the Learned Trial Judge, that Regulation 49 (3) (1) & (2) of the Second Schedule (procedures for exporting good from the free zone) Tinapa Free Zone and Resort Regulation 2009 made it mandatory that extant Federal Government fiscal policy pertaining to import in Nigeria would apply, that the Learned trial judge was in error when he held that the Appellants did not prove that the Respondent was involved in smuggling, which is a criminal activity and should be proved beyond reasonable doubt, that the packing lists, waybills issued by the Respondent all clearly confirmed that the Respondent was involved in smuggling activities because all the rice sold to its Nigerian customers in breach of the Federal Government physical policy were all supplied to them by road through

Calabar land border to their various destinations, that the Respondent’s main business concern in Tinapa Free Trade Zone and Resort was carried on in breach of Federal Government Fiscal Policy on Importation Guideline and Smuggling of several tons of rice into Nigeria through Calabar land border to supply to its customers.

Learned Counsel for the respondent argued that the trial Court rightly held that the appellants failed to prove their allegation that the respondent smuggled the rice, that the evidence before the Court point unassailably to the fact that the respondent carried on its business strictly within the bounds of the law and did not engage in any form of smuggling, that importation of rice through the sea port is lawful as there is no ban on the importation of rice through the ports, that the respondent complied with all the procedures for importation of goods into the Tinapa Free Trade Zone and Resort (TFTZR), that Form M is not required to import rice into the Tinapa Free Trade Zone and Resort (TFTZR) or export of rice from the Tinapa Free Trade Zone and Resort (TFTZR) to Nigeria, that rather Notice of Assessment of Duty is used, that

the appellants assessed the duties payable on the rice imported into the Tinapa Free Trade Zone and Resort (TFTZR) and the respondent paid the said duties and the appellants stamped the duties paid as having been duly verified, that upon verification, the appellant issued the respondents with Inspection Acts by which authorization, the Respondent was granted permission by the Appellants to export the rice outside of the Tinapa Free Trade Zone and Resort (TFTZR) into Nigeria, that the purported Import Guidelines Procedures and Documentation Requirements under the Destination inspection Scheme of Nigeria (exhibit upon which the entire appellants case rested, DW1-A) having been expunged from the evidence for being unsigned, the appellant’s defence failed and no valid argument in this appeal can be based on the said guidelines.

Let me now determine the merit of the above arguments of both sides.

I have already held in this judgment that since the appellants have accepted as correct the decision of the trial Court that the bundle of documents or circulars constituting Exhibit DW1-A, were not legally admissible evidence because they were not signed,

its decision rejecting them as evidence, and its decision that the appellants defence which was based entirely on the said rejected Exhibit DW1-A collapsed with its rejection, no valid or competent arguments can be predicated on them in this appeal. So the arguments of Learned Counsel based on the said rejected evidence lack factual foundation.

Learned Counsel for the appellant conceded that the respondent being licensed to carry on business as a food and beverage enterprise in Tinapa Free Trade Zone and Resort (TFTZR) was entitled to import the rice it imported to its warehouse in the Tinapa Free Trade Zone. He made this concession in his argument thusly- “Tinapa Free Zone and Resort is by law established to operate as “a country within the Nigeria Territory”, thus the Respondent was allowed to transit several containers of parboiled rice (the subject matter of the suit at the Court below) from Onne Sea Port, Rivers state to its warehouse located at the Buffer Zone in Tinapa Free Zone and Resort between 14th October, 2016 and 31st March, 2017, that the Respondent did not pay any customs duty nor observe the importation policy and

regulation in force in Nigeria when it transited several containers of foreign parboiled rice from Onne Sea Port in River State to its warehouse located at Buffer Zone with Nigeria Custom Territory (NCT) in Tinapa Free Zone and Resort. This is because the foreign parboiled rice as transited are meant to be used as raw material for which the respondent will use to produce or manufacture other products or add value to the quality. “

It is not in dispute that the rice in question were imported by the respondent through Onne Sea Port and transited by road to Tinapa Free Trade Zone and Resort where they were discharged or to be discharged in the respondent’s warehouses and the empty containers thereafter returned to Onne Sea Port. There is no evidence that such importation of rice is banned or prohibited. It is not in dispute that the respondent did not import the rice through land border. There is no law that prohibits such import of rice through a sea port. In any case paragraph 1 of the 8th Schedule to the Lagos Free Trade Zone Regulation 2009 (8th schedule) to the Nigeria Export Processing Zones Act Cap No. 107 LFN 2004 provides

that- “All items imported into TFZR must be entered by the CPC. The goods are not subject to import duty at this point, due to the free zone status of TFZR. However, upon entry of the goods, the appropriate HS Codes for the items must be determined by the CPC and communicated to every importer together with the appropriate customs duty rate. This code must be stated on every invoices/receipts issued by the importer/seller of the goods to the buyers at the point of sale. The CPC must also have a record of the quantity of goods imported by each importer into the Zone for the purpose of reconciling with the total quantity claimed to have been sold. All the above information must be promptly entered into a database designed for such purpose.
Considering the free zone status of Tinapa Free Trade Zone and Resort (TFTZR), all goods including goods that are banned or prohibited for importation into the NCT (Nigerian Custom Territory) will be allowed for importation into the zone. It is not in dispute that the respondent did comply with the procedures and requirements for the importation of the parboiled rice into the Tinapa Free Trade Zone and Resort (TFTZR).”

In any case, there is no ground of this appeal complaining against the holding of the trial Court that “Again, the defence of the 1st and 2nd defendants that the Plaintiff was importing its rice through land border is questionable. The said containers were merely being transported on land from Onne Sea Port to TFTZR. The containers were therefore in transit between one Sea Port and another and being in transit cannot be equated to land border importation and I so hold.”

The Respondent’s evidence, particularly the testimonies of PW1, PW2, PW3 and PW4 clearly establish that it complied with the laid down procedure for importation of the rice into the Zone. According to the evidence of PW4, the procedure of importation of goods from the country of origin into Tinapa Free Trade Zone and Resort, is that the enterprise, in this case the Respondent, sends a letter to the Management of the Tinapa Free Trade Zone and Resort, requesting for permission to import goods into the Zone. Once satisfied with the merits of that request, the Management of the Tinapa Free Trade Zone and Resort then forwards that application from the

enterprise to Nigerian Export Processing Zones Authority. According to PW4, some of the documents that accompany that application include, (a) The Letter of application for transfer of Goods, (b) Bill of lading, (c) Commercial invoice, (d) packing list and (e) valid operating license of the free enterprise. He further testified that upon being satisfied with the merit of the application, Nigerian Export Free Zones Authority (NEPZA) with whom he works then addresses a letter to the Area Comptroller of the 1st and 2nd Appellants to clear and transfer the goods sought to be transferred, under Customs Escort from Onne Sea Port to Tinapa Free Trade Zone and Resort. On his part, the Area Comptroller of 1st and 2nd Appellants in charge of Cross River and Akwa Ibom, once satisfied that the procedures have been complied with and the legitimacy of the application, forwards a letter to the Area comptroller in charge of Onne sea Port urging him to release the goods under Custom Escort. He maintained that upon the arrival of the goods in Tinapa Free Trade Zone, the clearing agent (PW5) notifies all the relevant government agencies including the 1st and 2nd appellant and

National Agency for Food and Drug Administration and Control (NAFDAC) to come for physical inspection of the goods. He further testified that before the inspection begins, it is the officers of the 1st and 2nd Appellants attached to the Tinapa Free Trade Zone that unseal the containers for physical inspection before they are stored in the warehouses. PW1, PW2, PW3 and PW4 also testified that these procedures were complied with by the Respondent in the importation of the rice in question into the Tinapa Free Trade Zone.

In respect of the rice seized and detained, their evidence is to the effect that the procedures were complied with up to the point that the goods were seized and detained on their way to the Tinapa Free Trade Zone. The said testimonies of PW1, PW2, PW3 and PW4 relating to compliance with these procedures are corroborated by – (a) Application from the Respondent to the Management of Tinapa Free Trade Zone for the transfer of the containers of rice from Onne to Tinapa Free Trade Zone, (b) Letters from Management of that body to Nigerian Export Free Zones Authority (NEPZA) indicating satisfaction with the merits of the application, (c) Letter

from Nigerian Export Free Zones Authority (NEPZA) to the 1st and 2nd Appellants through their respective Area Comptrollers seeking the approval for the transfer of the goods, (d) approvals from the 1st and 2nd Appellants for the transfer of the Plaintiff’s containers of rice from Onne Sea Port to Tinapa Free Trade Zone, (e) commercial invoices as well as (f) bills of lading in respect of the bags of rice in the warehouses sealed off and those in the containers of rice seized and detained by the Appellants, which documents are contained in pages 672 to 688 of Exhibit PW1-A. These documents show that in addition to the Respondent complying with the procedure for importation of goods into the Tinapa Free Trade Zone, the 1st and 2nd Appellants acting through their respective officers granted explicit approvals for the transfer of the bags of rice from Onne Sea Port to Tinapa Free Trade Zone. Pages 689-705 of Exhibit PW1-A show that at the point of discharge of the rice stored in the warehouse, they were inspected by Food and Drug Administration and Control (NAFDAC), analysed and certified fit for consumption. In the light of the foregoing, the 1st and 2nd

appellants cannot validly contend that the transit of the respondent’s rice from Onne Sea Port to Tinapa Free Trade Zone and Resort amounts to smuggling of the rice through Nigerian Land Border into Nigerian Territory.

Learned Counsel for the 1st and 2nd appellants further argued that instead of using the parboiled rice as raw materials to produce or manufacture other products or add value to the quality, the respondent was selling the foreign parboiled rice to buyers (importers) in the Nigeria Custom Territory. The exact text of the argument reads thusly- “that the Respondent do not operate any food processing factory or eatery outlet within Tinapa Free Trade Zone and Resort (TFTZR). Thus, it is very clear that the respondent’s main business concern in Tinapa Free Trade Zone and Resort was to sell the imported raw material (foreign parboiled rice) to intending buyers (importers) in contravention of extant Import Guidelines, Procedures and Documentation Inspection Regime especially import duty payments which requires documentation such as form ‘M’ corresponding account numbers for the transfer of funds meant for the

enterprises operating at the zone, mandatory Pre-Arrival Assessment Report (PAAR) Importation of rice quota allocation and Mandatory exemptions from observing import procedures in force in the country. The Respondent rather elected to smuggle the several metric tons of rice loaded in trucks from it warehouse in Buffer Zone at Tinapa Free Zone and Resort into Nigeria Custom Territory through the Calabar land border, that the respondent’s smuggling activities were discovered when a patrol Team led by the Federal operation Unit of Nigeria Customs Service arrested several trucks conveying thousands of metric tons of 50kg and 25kg bags of parboiled rice around Calabar town and its environs. The investigation conducted by the Nigeria Customs Service revealed that the source of the aforesaid arrested trucks loaded with several thousand of metric tons of foreign parboiled rice were from the Respondent’s warehouse located at the Buffer Zone in Tinapa Free Zone and Resort, that pursuant to the obvious provisions of Sections 14 (a) and 158 of the Customs and Excise Management Act Cap C 45 L. F. N. 2004, the Federal Operation Unit, whose responsibility is to

investigate, inspect and enforce compliance of the provisions of customs laws, went into the Buffer Zone at Tinapa Free Zone and Resort to seal off the Respondent’s warehouses with a view to stop further smuggling activities of the Respondent as well as placed a twenty four hour surveillance within Calabar land border and Tinapa Free Zone and Resort, that with the Twenty four hour surveillance of Calabar land border with Tinapa Free Zone and Resort, the Respondent could not carry on its smuggling as usual, hence the Respondent’s suit initiated against the Appellants at the Court below.”

It is not in dispute that the respondent exported its rice from Tinapa Free Trade Zone and Resort (TFTZR) to the Nigerian Custom Territory, Calabar and its environs. It is not in dispute that the respondent paid the duties for the said export of the rice from Tinapa Free Trade Zone and Resort (TFTZR), which duties were assessed by the 1st and 2nd appellants in Notices of Assessment of Duties, Exhibits PW1-A, issued by the said 1st and 2nd appellants and served on the respondent as a demand for the payment of the duties assessed as payable therein for the

export of the said rice. It is clear from the evidence after the payment of the duties assessed by the appellants in the Notice of Duties Assessment, the appellants’ officer in charge of evaluation stamped the Notice of Assessment as evaluated and verified and the Inspection Act issued by the 1st and 2nd appellants to the respondent, which authorized or permitted the respondent to export the rice out of Tinapa Free Trade Zone and Resort (TFTZR) into Nigeria.

There is nothing in the pleadings and evidence of the appellants that show or suggest the 1st and 2nd appellants denied issuing the notices of assessment or stamped same as evaluated or issuing the Inspection Acts. They did not challenge the authenticity of these documents.

The evidence particularly pages 516 – 519 of Exhibit PW1-A establish that the use of Notice of Duty Assessment was introduced by the 1st and 2nd appellants to facilitate the collection of custom duty on exports from Tinapa Free Trade Zone and Resort (TFTZR). This evidence was neither challenged nor contradicted. In the face of the Notices of the said duties assessment stamped evaluated and the Inspection Acts, the

arguments of Learned Counsel for the 1st and 2nd appellants that the respondent’s export of its rice from Tinapa Free Trade Zone and Resort (TFTZR) amounts to smuggling of the rice is not correct.

The appellants clearly authorized the respondent’s export of rice from the Tinapa Free Trade Zone and Resort (TFTZR) into the Nigeria Custom Territory by issuing the respondent with the notice of duties assessment forms, assessing the duties payable for the respondent’s rice in the warehouse, receiving the assessed duties of 53 Million naira paid by the respondent, stamping the notice of duties assessment forms as having been evaluated after the said payment, and issuance of inspection acts to the respondent. Therefore the appellants cannot validly contend that the export of the rice from the Tinapa Free Trade Zone and Resort was illegally done or that it was smuggled.

I agree with the submission of Learned Counsel for the respondent that the 1st and 2nd appellants have by their said acts made the respondent to believe that they had authorized him to export the said rice and therefore are estopped by their said acts from contending that

the rice were smuggled out of the Tinapa Free Trade Zone and Resort (TFTZR) into the Nigerian Custom Territory. This is so by virtue of S.169 of the Evidence Act 2011 which provides thusly –
“When one person has either by virtue of existing Court judgment, deed or agreement, or by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest, shall be allowed in any proceeding between himself and such person or such person’s representatives in interest, to deny the truth of that thing.“
See A-G Nasarawa v. A-G Plateau State (2012) LEPLR – 973 (SC) in which the Supreme Court applied this provision. So the appellants are estopped from contending that the said export breached the Custom and Excise Management Act, Regulation 49 of the 2nd Schedule of Tinapa Free Trade Zone and Resort Regulations 2009, Federal Government Fiscal Policy on Import & Export Guidelines, Procedures and Documentation Requirement under Destination Inspection Regime and ban on importation of rice through land border.

The 1st and 2nd appellants did not elicit any evidence to show that the 53 Million naira they assessed as duty payable on the rice in the respondent’s warehouse in TFTZR and which amount was paid by the respondent to them and they admitted receiving same, covered only 11,000 of the 46,800 bags of rice in the said warehouse as argued by Learned counsel for the 1st and 2nd appellants. The argument is baseless.

In the light of the foregoing, I resolve issues Nos. 1, 2 and 5 in favour of the respondent.

Let me now consider issues 3 and 4 together. They ask thusly:
“3. Whether the Learned Trial Judge was right to raise and determine suo moto the issue that the circulars tendered by the Appellants are more administrative documents without any legal effect without affording the Appellants the opportunity to be heard on the issue?
4. Whether the Learned Trial Judge was right to hold that the circulars and tenders by the Appellants are mere administrative documents without any legal effect?”

The appellants herein have accepted as correct and conclusive the decision of the trial Court that Exhibits DW1-A containing the circulars

are inadmissible evidence for being unsigned and the decision rejecting them as evidence and expunging them from the evidence in this case, it would serve no useful purpose to determine the merit of issues Nos. 3 and 4 because being inadmissible evidence and having been expunged from the evidence in this case, cannot be relied on in the determination of this appeal.
For this reason, issues 3 and 4 are hereby struck out.

Let me now consider issue No. 6 which asks- “Whether the Court below was right in the circumstances of this case to hold that the 1st and 2nd Appellants’ officers are not exonerated from legal liabilities and prosecution by the provisions of Section 158(2) of the Customs and Excise Management Act for sealing off the Respondent’s warehouse located at buffer zone in Tinapa Free Zone and Resort?”

I have carefully read and considered the arguments of both sides on this issue.

The part of the judgment of the trial Court complained against under this issue reads thusly- “It has not been shown to this Court, the provisions of CEMA 2004 that authorizes any of its officers to enter and seal up the

business premises in a Free Trade Zone or TFTZR in particular. In that case, the foray of the officers of the 1st and 2nd Defendant and which was not to enforce or implement the provisions of Nigeria Export Processing Zones‘ Act Cap 107, LFNM 2004, or any regulation thereof, was illegal and unlawful venture. No person can seek the protection of the law when such person acted in breach of the law. Therefore, this argument goes to naught.“

Learned Counsel for the appellant argued that the above holding of the trial Court is wrong, that the officers of the Federal Operation Unit of the Nigerian Customs Service acted within the confines of law in going into the buffer zone of Nigerian Customs Territory in Tinapa Free Trade Zone and Resort to seal off the Respondent’s warehouse which is the source of the supply of the several trucks of rice it alleged were arrested in order to stop the respondent’s smuggling activities of rice into Nigeria through Calabar Land Border, that in Customs tradition, a Buffer Zone in this instance is within Nigeria Customs Territory where goods which are to be imported into the country are deposited into

bonded warehouse(s) before they are cleared for importation, that the Court below was wrong to hold that the Appellants’ officers acted outside Nigerian Customs territory and therefore are not protected by the provisions of Section 158(2) of the Customs and Excise Management Act, 2004.

Learned Counsel for the respondent argued that the trial Court rightly held that the sealing up of the Respondent’s warehouses in Tinapa Free Trade Zone and Resort by the 1st and 2nd Appellants was unjustifiable and accordingly their officers were not entitled to any protection whatsoever under the Customs and Excise Management Act, 2004 having acted outside of the bounds of the Customs and Excise Management Act, that by its enabling law, ‘the Tinapa Free Trade Zone and Resort’ is a country within a Country and therefore outside of authority of the 1st and 2nd Appellants, even though 1st and 2nd Appellants are accorded recognition by the Tinapa Regulations, under the Regulations, the entire territory comprised in the Tinapa Free Trade Zone and Resort, is expressly excluded from the territorial jurisdiction and regulatory competence of the 1st and 2nd

Appellants, that it is for this reason that the regulation specifies in Paragraph 1 of the seventh Schedule to the Nigeria Export Processing Zones Act (TINAPA free Zone and Resort Regulations, 2009) CAP N 107 2004) that a Custom Processing zone should be established outside of the Tinapa Free Trade Zone and Resort, that even the Appellants admit the position of the law in this regard at paragraph 3.5, page 7 of their brief, that being a country of its own as conceded by the Appellants, though within the Nigerian geographical enclave, it is neither a custom territory nor subject to its operational restrictions in Nigeria as rightly found by the trial Court, that custom restrictions only become enforceable when the goods stored in TFTZR are to be exported into the Nigerian Custom Territory from the Respondent’s warehouses in Tinapa Free Trade Zone and Resort, that at the trial Court, the appellants conceded this point when at the concluding part of paragraph 3.15 of their Final Written Address, they submitted thus: “However, if the Plaintiff intends to export from Tinapa Free Trade Zone and Resort into Nigerian Custom Territory (NCT) then the Fiscal

Policy Regime in Nigeria must be complied with”, that having themselves admitted that the Tinapa Free Trade Zone is not a custom territory, being a country within country and that Fiscal policy regime of government of Nigeria only becomes operational once the goods stored in the Free Trade Zone are to be imported into Nigeria, this Court should hold that the learned trial Judge was right when he held that it was gravely wrong and or illegal for the Appellants to have entered into the Tinapa Free Trade Zone and Resort and sealed off the Respondent’s warehouse, that throughout the trial of this case and till this point, the Appellants have hitherto not pointed to any section of the Customs and Excise Management Act or indeed Any other Act or law which authorizes them to enter into any Free Trade Zone and in particular, the Tinapa Free Trade Zone and Resort and seal off warehouses, that the body on whom the power of regulating and or enforcing compliance with the Tinapa Free Zone and Resort regulations, rest, is the Nigerian Export Processing Zones Authority (NEPZA) and not the Nigeria Customs Service.

Let me now determine the merits of the

above arguments of both sides.

The appellants having authorized the respondent’s export of the rice from Tinapa Free Trade Zone and Resort to Nigeria by issuing the respondent Nigerian Customs Notice of Duty assessment forms, assessing the duties payable for the rice to be exported, receiving the 53 Million naira paid as the assessed duty, thereafter stamping the Notice of Duty assessment as evaluated and verified and issuing to the respondent the Inspection Act authorizing the export of the goods, the appellants cannot validly claim that they were engaged in the enforcement of customs and exercise laws when they entered and sealed up the warehouses containing the said rice it had authorized to be exported from Tinapa Free Trade Zone and Resort by the above acts. The issuance of the Notice of duties assessment forms, assessment of duties payable on the rice, receipt of the 53 Million naira as the assessed duty payable for the export, the stamping of the notice as evaluated and verified and the issuance of the Inspection Act authorizing the export, defeat the claim of the appellants that its Federal Operation Unit went into the respondent’s

warehouse and sealed it off to stop further smuggling of the rice to Calabar and its environs. There was clearly no such smuggling of rice to be stopped.
The argument of Learned Counsel for the appellant about the buffer zone where the respondents bonded warehouse was located being in the Nigerian Customs Territory and not part of Tinapa Free Trade Zone and Resort is of no relevance in determining this issue in view of the acts of the appellants authorizing the export of rice from the Free Trade Zone to Nigeria. In any case, the appellants failed to show that a buffer zone in Tinapa Free Trade Zone and Resort is treated as Nigeria Customs Territory and not part of the Free Trade Zone. The appellants did not adduce any evidence to establish the existence of the Customs tradition that made a buffer zone in Tinapa Free Trade Zone and Resort part of Nigeria. What is clear is that the buffer zone where the bond warehouses are located is operated by the zone authority by virtue of Regulation 49(3) of the Tinapa Free Zone and Resort Regulations 2009 which provides that “…such goods shall be deposited at bonded warehouse located in the buffer zone and

operated by the Authority.”
As it is the appellants have no legal justification for sealing the respondent’s warehouse with the rice in it and detaining for 120 days by the road side at Onne, Port Harcourt, the respondent’s 40 trucks containing 317 Transit Containers of rice destined for the Tinapa Free Trade Zone and Resort (TFTZR) earlier released by them in transit from Onne Sea Port and ordering that the trucks be taken by the respondents back to Onne Sea Port and re-exported out of Nigeria.
The appellants who had authorized the respondent’s export of rice to Nigeria could not have been engaged in the enforcement of any custom and excise laws when they entered into and sealed the respondent’s warehouse in Tinapa Free Trade Zone and Resort containing the rice to be exported to Nigeria and so cannot enjoy the protection of Section 158(2) of the Customs and Excise Management Act Cap. C45 L.F.N 2004 which provides that-
“Any officer engaged in the enforcement of customs and excise laws may for that purpose patrol upon and pass freely over and enter any place in Nigeria and such officer shall not be liable to

any Prosecution or action at law for so doing. (Underlining mine).“

In the light of the foregoing, issue No. 6 is resolved in favour of the respondent.

Let me consider issue No. 7 which asks- “Whether in the circumstances of this case, the learned trial judge was right to have awarded any damages at all in favour of the Respondents?“

The part of the judgment of the trial Court containing the remedies it granted reads thusly-
“1. A Declaration is hereby made that the 1st and 2nd Defendants have no power, authority or justification to seal off the plaintiff’s warehouses located at the Tinapa Free Trade Zone, Calabar, Cross River State or to seize, detain or order the seizure or detention of the Plaintiff’s containers of rice lawfully imported through the Onne Sea Port for conveyance to the Calabar Free Trade Zone.
2. A Declaration is hereby made that the seizure or detention by the 1st and 2nd Defendants of 317 Transit Containers belonging to the Plaintiff at Onne Sea Port, Rivers State and the Order for their re-exportation is illegal, unlawful and unjustified.
3. A Declaration that the sealing

off by the 1st and 2nd Defendants of the Plaintiff’s warehouses at Tinapa Free Trade Zone, Calabar containing 90 containers worth of rice escorted to the said warehouse by the Nigerian Customs and over which duties were duly paid by the Plaintiff is illegal, unlawful and unjustified.
4. Special Damages in the sum of:
a. N172,440,819.00 (One Hundred and Seventy-Two Million, Four Hundred and Forty Thousand, Eight Hundred and Nineteen Naira) and $162,400 (One Hundred and Sixty Two Thousand, Four Hundred Dollars) which sums represent the demurrage, West African Container Terminal (WACT) charge, CMA-CGM charges, MEARSK charges, freight charges and other incidental charges and penalties paid by the plaintiff on account of the unlawful detention of the said 317 Transit containers and their re-exportation.
b. N32,295,100.00 (Thirty Two Million, Two Hundred and Ninety Five Thousand, One Hundred Naira being the cost of clearing the various containers of rice for re-exportation.
c. The sum 188,054,500.00 (One Hundred and Eighty Eight Million, Fifty Four Thousand Five Hundred Naira) only being the total value of contaminated bags of rice in 104

out of the 317 Transit Containers of rice unstuffed at Cotonou after re-exportation.
d. The sum of N437,496,900.00 being the total value of 19421 50KG bags of Indian and Thai Rice and 1639 25kg bags of Indian Rice discovered to have been taken away from the Plaintiff’s warehouses when stocks were taken upon the unsealing of the warehouses by the 1st and 2nd Defendants.
e. N2,492,131.72 (Two Million, Four Hundred and Ninety Two Thousand, One Hundred and Thirty One Naira, seventy Two Kobo) being the total cost expended on flight by the Plaintiff in a bid to get the Defendants to unseal its warehouse and to release the containers of rice detained by the defendants.
f. $4,796,550 (Four Million, Seven Hundred and Ninety Six Thousand, Five Hundred and Fifty USD) being the total value of the 317 Transit containers unlawfully detained at Onne Sea Port, Rivers State by the Defendants and re-exported outside of Nigeria which have been certified unfit for human consumption.
g. N2,000,000,000.00 (Two Billion Naira) being the estimated profit the Plaintiff would have made from the sale of the said rice
5. General Damages in the sum of

N1,000,000,000.00 (One Billion Naira) only for the huge economic loss and depreciation in business fortunes of the plaintiff on account of the unlawful detention of the Transit containers by the 1st and 2nd Defendants.
6. AN Order of Perpetual Injunction restraining the 1st and 2nd Defendants from further unlawfully interfering with the Lawful Business Transactions of the Plaintiff within the Tinapa Free Trade Zone.
7. Interest on the judgment sum at the prevailing Monetary Policy Rate (Central Bank rate) from date of judgment until judgment sums are fully liquidated.”

Learned Counsel for the appellants argued that the trial Court erred in law in awarding special and general damages in favour of the respondent, that the trial Court erred in believing the evidence of the respondent and awarding damages without first making proper evaluation, that there is no evidence to warrant the award of any damage at all, that the respondent filed its suit because the appellants stopped its smuggling activities, that the Court should not be used to facilitate the illegal activities of the respondent by awarding damages in its favour when the respondent

was in breach of the provisions of Section 25(3) and (4) of the Customs and Excise Management Act, Regulation 49(3)(1) and (2) of the 2nd Schedule to the Tinapa Free Trade Zone and Resorts Regulation 2009 and the Federal Government Fiscal Policies on import and export, that the award of special and general damages in respect of the transited rice against the appellants was done in breach of Section 25(3) and (4) of the Customs and Excise Management Act which makes it mandatory that the transited rice should not be entered for use in Nigeria without written authorization or waiver from the Federal Government of Nigeria and that the damages claimed for were awarded without any evidence proving them.

Learned Counsel for the respondent in substance argued that the respondent specially pleaded and proved the special damages as the pleadings and evidence show and that the trial Court correctly awarded the special and general damages claimed for.

Let me determine the merits of the arguments of both sides.

The main argument of the appellants against the award of special and general damages was that their sealing of the respondent’s warehouse of

rice at Tinapa Free Trade Zone and Resort and their detention of its truck of rice in transit to Tinapa Free Trade Zone and Resort was legally justified because they discovered that the respondent was smuggling the rice from its warehouse in Tinapa Free Trade Zone and Resort into Calabar and its environs. I have already held herein that the said acts of the appellants have no legal justification. The acts are illegal and violate the legal rights of the respondent, disrupted and frustrated its sale of the rice.

The other argument of the appellants that the trial Court did not evaluate and appraise the respondent’s evidence in respect of each head of special damages awarded lacks substance as the appellants failed to demonstrate that there was no such evaluation of evidence, that such failure to evaluate the evidence caused the trial Court to make the award and that the award is perverse in that it is not supported by any evidence or that it is a wrong estimate. The respondent in paragraphs 30 to 42 of its amended statement of claim specifically and specially pleaded the items of special damages, particularising them. The testimony of PW1 and the

receipts of payments to West African Container Terminal (WACT), Maersk and CMA-CGM for charges, demurrage and re-exportation costs contained in pages 571 – 619 of Exhibit PW1-A proved the special damages awarded by the trial Court in relief (a) above. As rightly found by the trial Court, the appellants did not elicit any evidence to contradict the evidence of particulars of loss contained in the uncontroverted testimonies of PW1 and PW3, the flight tickets contained in pages 526 to 570 of Exhibits PW1-A, which evidence establish the losses forming the basis of the special damages awarded in (e) and (f) above.

The appellants have not argued or suggested that having regard to the common course of natural events, particularly buying and selling goods, import and export of rice and particularly the circumstances of this case such as the massive disruption of the respondent’s business, the award of 2Billion naira as general damages for estimated loss of profit and 1Billion naira as general damages for economic loss is unreasonable. An appeal against award of general damages by a trial Court must have regard to the law that an appellate Court has

no power to interfere with the award by the trial Court unless the appellant shows that the award resulted from the application of a wrong principle of law or that it is unreasonable having regard to the circumstances of the cases or that it is perverse as it is not supported by the evidence or that the estimate is wrong. The very limited appellate jurisdiction to interfere with a trial Court’s exercise of discretion in award of general damages can be exercised only if any of the above listed conditions is shown to exist. This invereterate principle of hallowed antiquity is restated in an unending line of decisions of the Supreme Court and this Court. See for example Thompson & Anor V Adefope (1969) 1 All NLR 322(SC), Okwejiminor V Ogbakeji & Anor (2008) LPELR -2537(SC) and Offoboche V Ogoja L.G & Anor(2001) LPELR – 2265(SC).
It is obvious from his arguments against the award of general damages that Learned Counsel for the appellant did not address his mind to the above restated law on appeal against an award of general damages by a trial Court. The appellants’ arguments against the said awards are as general and vague as the issue

No. 7 under which they were made. The relevant arguments in an appeal against award of general damages by a trial Court were not made.

In the light of the foregoing, I resolve issue No. 7 in favour of the respondent.

On the whole, this appeal fails as it lacks merit. It is accordingly hereby dismissed.
The 1st and 2nd appellants shall pay costs of N400,000.00 to the Respondent.

PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother EMMANUEL AKOMAYE AGIM, JCA in APPEAL NO. CA/A/819/2019.
I agree with the reasoning and conclusion therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA and I am in complete agreement with the reasoning and succinct resolution of issues distilled for determination in the appeal.

Indeed, the Appellants having failed to appeal some far reaching findings against their interest, they cannot have a meritorious appeal. Furthermore, when the Appellant with impunity breached laws and rules of engagement with the Respondent, they cannot turn round to want to ride on

the same law for defence. Equity demands that he who comes to equity must come with clean hands. My learned brother in a concise way dealt with these issues in the lead judgment and I have nothing more to add.

I also dismiss the appeal for lacking in merit and abide by the other orders made therein.

Appearances:

P.U. AKUTAH, ESQ., with him, A.K. ALILU, ESQ. For Appellant(s)

CHIEF KANU G. AGABI, SAN with him, EDIDIONG USUNGURUA, ESQ., PRINCE W.E. EKPE, ESQ., and EMMANUEL A. AGABI, ESQ. For Respondent(s)