DENCA SERVICES LTD v. LEO OLEKA & SONS LTD & ORS (2015)

DENCA SERVICES LTD v. LEO OLEKA & SONS LTD & ORS

(2015)LCN/8071(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/L/688/2010

RATIO

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; WHEN DOES THE DETENTION OF PROPERTY BECOME A VIOLATION OF CONSTITUTIONAL PROVISIONS

From the above provision, the 3rd respondent is authorised under Section 44(2) (k) to take possession of the 1st and 2nd respondents’ truck for the purpose of investigation relating to the contraband goods the truck was caught carrying. Further, by Section 169 of the Customs and Excise Management Act Cap C45 Laws of the Federation of Nigeria 2004, the 3rd Respondent is entitled in the lawful operation of its duties to seize any vehicle in which goods regarded as contraband pursuant to Section 167 of the Customs and Excise Management Act (supra) are conveyed. The arrest and detention was not therefore ab initio illegal. See the case of NWANNA VS A-G FEDERATION (2010) 15 WRN 178 @ 187 referred to by learned counsel for the appellant where Mukhtar JCA (as he then was) observed:
“An arrest or detention the subject of Fundamental Rights Enforcement Procedure Rules is only that which violates any provision in the Constitution or any Federal or State law for the time being in force”
But by the continued detention of the truck for up to two years, especially after the contraband goods were returned, the 3rd respondent removed itself from the protection provided by Section 44 (2) (k) of the Constitution. It was also no longer protected under Section 169 of the Customs and Excise Management Act Cap C45 Laws of the Federation of Nigeria 2004 because it was no longer acting in lawful operation of its duties. Its illegal act in detaining the truck for such a long period and after it had released the contraband goods it was conveying was in breach the fundamental rights of the 1st and 2nd respondent as guaranteed by Section 44 of the 1999 Constitution. per. CHINWE EUGENIA IYIZOBA, J.C.A.

PRACTICE AND PROCEDURE: WHETHER THE NON COMPLIANCE WITH THE PROVISIONS OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES CAN DEFEAT AN ACTION UNDER THE RULES
It is obvious that the above passage is concerned with the method of commencing a fundamental rights action. It is a misconception for the learned trial judge to interpret the case to mean that non compliance with any provisions of the Fundamental Rights (Enforcement Procedure) Rules cannot defeat an action under the Rules. Of what use are the provisions then? There is a very long line of authorities where suits have been thrown out for failure to comply with the Rules. See Chukwuogor vs Chukwuogor (2005) LPELR – CA/C/100/2004 ; Onyemaizu vs. Orjiakor (2000) 6 NWLR (Pt. 659) 25 @ 47; Medeyinlo vs. Jembi & Anor (2011) LPELR-CA/L/361/08; Ezeadukwa vs. Maduka (1997) LPELR-CA/E/201/95; Ogwuche & Ors vs. Mba & Ors (1994) 4 NWLR (Pt. 336) 75 @ 85 E-F. per. CHINWE EUGENIA IYIZOBA, J.C.A.

PRACTICE AND PROCEDURE: WHETHER ACTIONS THAT ARE STATUTE BARRED CAN GIVE RISE TO A CAUSE OF ACTION

Action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. In the case of ARAKA VS. EJEAGWU (Supra) @ 865 – 866 H-A Kalgo JSC observed: “Statute-barred” simply means barred by a provision of the statute. It is usually as to time, i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limited time or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the court will treat it as such.”
A situation similar to the one under consideration came up in the case of N.D.I.C. vs. O’Silvawax Int’l Ltd [2006] 7 NWLR (Pt. 980) 588 @ 609 C-D. The action under the Fundamental Rights (Enforcement Procedure) Rules was brought sixteen months after the seizure of the respondent’s vehicles. After leave was granted and the motion on notice was filed, the appellant raised a preliminary objection that the suit was statute barred. The Court of Appeal Enugu Division held that by virtue of Order 1 Rule 3(1) of the Fundamental Rights (Enforcement Procedure) Rules, any application or suit in contemplation of the fundamental rights enforcement procedure must be brought within a period of twelve months from the date of the happening of the event, matter or act complained of or such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay, is accounted for to the satisfaction of the court or judge to whom the application is made. The respondent having failed to account for the delay, the application was declared incompetent and struck out. In the same vein, the 1st and 2nd respondents in this appeal did not account for the delay in bringing their suit 24 months after the cause of action arose. In their brief, it was argued for the 1st and 2nd respondent that the act complained of was a continuous one. It was held in N.D.I.C. vs. O’Silvawax Int’l Ltd (Supra) that a continuous act is applicable to a case of nuisance which will continue until abated. It does not therefore apply in this type of case where the cause of action accrued on the 8th of April 2005 when the truck was arrested. It is on that date that the right of the respondents to seek redress accrued. They should have sued within 12 months of that date. The action was therefore clearly statute barred. See also Oladekoyi v. I.G.P. [2011] 16 NWLR (Pt. 1273) 406 @ 428 E-G.
It is gratifying that under the Fundamental Rights (Enforcement Procedure) Rules 2009 both application for leave (Order 11 rule 2); and limitation of time within which to institute action (Order 111 rule 1) have all been abolished. Under the new law fundamental rights cases can now be heard on their merits devoid of all these vexatious technicalities. per. CHINWE EUGENIA IYIZOBA, J.C.A.

Before Their Lordships

CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria

TIJANNI ABUBAKARJustice of The Court of Appeal of Nigeria

ABIMBOLA O. OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria

Between

DENCA SERVICES LTDAppellant(s)

AND

1. LEO OLEKA & SONS LTD
2. LEO OLEKA
3. NIGERIA CUSTOM SERVICESRespondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): At the Federal High Court Lagos, the 1st and 2nd respondents as applicants commenced proceedings in suit no FHC/L/CS/345/07 against the appellant as 2nd respondent and the 3rd respondent herein as 1st respondent for enforcement of their fundamental rights by first filing a motion ex parte for leave on 5/4/07. After leave was granted on 14/5/07, the 1st and 2nd respondents filed their motion on notice in which they prayed for the following reliefs:
1. “A declaration that the arrest and detention of the Applicants’ Truck/Trailer with Registration Number AW 213 EKY by the Respondents from 8th day of April 2005 till date of release is illegal and unconstitutional.
2. A declaration that the continued arrest and detention of the Applicants’ Truck/Trailer since the 8th day of April 2005 amounted to an illegal and unconstitutional threat to the property and lives of the Applicants and their workers without any reasonable or legal justification.
3. An Order of this Honourable Court awarding the sum of N5,000,000.00 (Five Million Naira) general damages in favour of the Applicants and against the Respondent for their unlawful arrest and detention of the Applicants’ Truck/Trailer rights to their property and since the 8th day of April 2005 amounting to wicked violation of the Applicants right to their property and their means of livelihood.
4. An order of this Honourable Court commanding the second respondent to pay all their outstanding bills to the applicants with effect from the 8th day of April 2005 to date of release of the said Truck/Trailer.”

The 1st Respondent is in the transport business of haulage of goods within Nigeria particularly in Lagos State. The 2nd respondent is its Managing Director. On the 8th day of April 2005, the Appellant hired the services of the 1st Respondent through the 2nd Respondent for the haulage of a 20ft container from SCOA Kirikiri terminal to No. 53 Kosoko Street, Lagos. The Appellant had through a way bill misrepresented to the 1st and 2nd Respondents that the contents of their 20ft container were padlocks. It turned out that the contents were contraband goods – lace materials. The truck was arrested in transit by the 3rd respondent claiming that it had a tip off that the truck was carrying contraband goods. The 1st and 2nd respondents claim that it was all a conspiracy as the 20ft container had been in the possession of the 3rd respondent long before then and they decided to release it to the appellant only to turn round and arrest their truck. Even after the arrest, the prohibited lace materials were released to the appellant but the 3rd respondent refused to release the truck. They further claimed that the 3rd Respondent deliberately neglected to carry out any form of investigation in respect of the unlawful arrest and detention of the 1st and 2nd Respondents truck. The 3rd Respondent detained the truck for two years and refused to release the truck despite series of appeals from the 1st and 2nd respondents. The truck was finally released on the 10th day of May 2007 after the institution of this suit and the service of the processes on the 3rd respondent.

On being served with the Originating Processes, the appellant raised a Preliminary Objection to the suit on the grounds that:
1. The reliefs sought being reliefs relating to temporary possession justified under Section 44 (k) of the Nigerian Constitution, can only be procedurally commenced with a Writ of Summons.
2. The Applicants/Respondents have no right whatsoever breached or likely to be breached with respect to Truck/Trailer with Registration Number AW 213 EKY.
3. The provisions of the Federal High Court (Civil Procedure) Rules 2000, which rules regulate the said applicants’ reliefs were not followed by the applicants in asking for the reliefs.
4. By virtue of the combined effect of grounds 1, 2 and 3 above, the condition precedent to this honourable court assuming and exercising jurisdiction in respect of the said reliefs has not been fulfilled.
5. Consequentially, this honourable court lacks jurisdiction to entertain the Applicants/Respondents claims with respect to the Reliefs.

The 3rd respondent, though duly served did not participate in the trial. The Hon trial Judge A.R. Mohammed J heard the Motion on Notice and the Preliminary Objection together, and in a reserved Ruling on 29/03/10 dismissed the Preliminary Objection and granted reliefs 1 & 2 of the motion on notice dated 17/5/07 and N2million as compensation in favour of the applicants against the respondents for the violation of the applicants’ right to property guaranteed under Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999.

Dissatisfied with the ruling, the appellant by Notice of Appeal dated 04/05/10 appealed against the Ruling. From his four grounds of appeal, three issues were formulated as follows:
(a)In view of S. 44(1) & (2)(k) of the Nigerian Constitution, was the Applicants/Respondents’ action for arrest and detention of truck number AW 213 EKY competently commenced by way of Fundamental Rights Enforcement Procedure and if so was the action not time barred thus impairing the jurisdiction of the trial court over the action?
(b) Was the trial court’s decision in this suit not perverse, when after exonerating the Appellant from arrest and detention of truck number AW 213 EKY turned around and awarded N2million conjunctively to the liability of the Appellant?
(c) Whether leave granted ex parte to enforce Applicants/Respondents fundamental rights, ipso facto extinguished Appellant’s constitutional right to raise preliminary objection to the initiating procedure to this suit and/or discharged the trial court from its judicial duty to resolve judicially the issues of time-bar and purport of S 44(2) (k) of the Nigerian Constitution properly raised before it in this action.

The 1st and 2nd respondents’ brief was settled by N.N. Nwokorie Esq. The brief is defective. Counsel did not formulate any issues and did not indicate that he was adopting the issues formulated by the appellant. Counsel went on a tangent of his own arguing issues at large when he neither filed a cross appeal nor a respondent’s notice. In his reply brief, learned counsel for the appellant relying on the cases of Orji vs. Zaria Industries Ltd (1992) 1 NWLR (Pt. 216) 124 @146 and Opara vs. Dowell Schlumberger (Nig) Ltd (1995) 4 NWLR (Pt. 390) 440 urged us to strike out the 1st and 2nd respondent’s brief.

In Orji vs. Zaria Industries Ltd (supra) @146 G, Akpata JSC observed:
“It is to be noted that in the respondent’s brief issues for determination were not formulated. Neither were the issues proffered by the appellant adopted. Besides, counsel for the respondent inevitably fell into a further grave error by basing his arguments on the grounds of appeal without regard to the issues formulated in the appellant’s brief. Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, and arguments canvassed therein would therefore be of no consequence. The brief becomes irredeemably bad if, as in this case, arguments are not based on any issue or issues or semblance of them.”

The 1st and 2nd respondent’s brief of argument is irredeemably bad and incompetent. The 3rd respondent’s brief is also incompetent. The 3rd respondent who was the 1st defendant in the court below should have filed a notice of appeal if it had planned to file an appellant’s brief. It cannot as a respondent file a brief aligning himself with the case of the appellant. That is referred to as freak advocacy and cannot be allowed. See Adenuga v. Odumeru (2002) 8 NWLR 821 163 @ 181 F-G; Nigerian Bank of Commerce & Industry v. Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt.916) 617 @ 639 E – F. See also Order 18 Rules 4(1) & (2) of the Court of Appeal Rules 2011. The 3rd respondent’s brief must also be discountenanced.

APPELLANT’S ARGUMENTS:
On issue no 1, learned counsel submitted that the suit was wrongly commenced under the Fundamental Rights Enforcement Procedure Rules and that the trial court lacked jurisdiction to entertain the suit. Counsel argued that S. 44(1) of the Constitution deals with fundamental right against compulsory acquisition of property and that 1st & 2nd respondents’ claim in this suit is for arrest and detention of the truck. The claim was thus not cognizable under S. 44(1), 34 and 35 of the Constitution under which the Applicants brought their claims. Counsel argued that the arrest and detention were excusable under S. 44(2) (k) of the constitution; and that the action should not have been brought under the Fundamental Rights Enforcement Procedure Rules but by ordinary writ of summons. He relied on the following authorities: OKECHUKWU VS ETUKOKWU (1998) 8 NWLR (Pt. 562) 513 @ 535 Para H; F. M. C. T. VS EZE (2006) ALL FWLR (Pt. 323) 1704 @ 1722 Paras B – H; TUKUR VS GOVT. OF TARABA (1997) 6 NWLR (Pt 510) 549 @ 576 – 577.

Counsel further submitted that even assuming without conceding that the suit could have been properly brought under the Fundamental Rights (Enforcement) Procedure Rules 1979, the 1st and 2nd Respondents violated Order 1 Rule 3(1) of the Rule which required the application for leave to enforce their Fundamental Rights to be filed within twelve months from the date of the happening of the event. Counsel submitted that the event took place on 8/4/05 and that the application was filed on 5/4/07, 24 months after the event. Counsel submitted that the action is time barred and ought to have been dismissed by the trial court. He cited EGBE VS ADEFARASIN (1985) 1 NWLR (Pt 3) 549 @ 568; ARAKA VS EJEAGWU (2001) FWLR (Pt.36) 830 @ 849 Para E.

On issue no 2 learned counsel submitted that the uncontested fact is that, the arrest and detention of the Truck by the 3rd respondent took place on the 8th of April 2005; that the appellant had nothing to do with the arrest. There was consequently no basis for the award of N2m against the respondents, the appellant inclusive. Counsel argued that in making this conjunctive award, the trial court simply visited the “sins” of Nigerian Customs Services (the Respondent) on DENCA SERVICES LIMITED (the Appellant.) He urged us to remedy this unjustifiable situation by disentangling the Appellant from this monetary award in the event that the award would stand at all.

On issue 3, Learned Counsel submitted that the lower court had in its Ruling whilst interpreting Order 1 Rule 3(1) of the Fundamental Right Enforcement Procedure Rules 1979, taken the imperious position “that once the court is satisfied that leave should be granted or the delay for seeking leave is explained, the matter in my view ends there.” Counsel submitted that the fact that leave has been granted cannot be a bar to raising objection to the propriety or otherwise of the institution of the action through the Fundamental Rights Enforcement Procedure Rules.

I have carefully examined the reliefs sought in this appeal which I have set out earlier in this judgment. The reliefs which an applicant may seek and obtain under Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 and in an action commenced under the Fundamental Rights (Enforcement Procedure) Rules must be one of those affecting any of the fundamental rights entrenched in Chapter IV of the Constitution. In the applicant’s written response to the respondent’s preliminary objection at page 48 of the record counsel stated:
“The complaint of the applicants is that their truck/trailer, the mainstay of their sustenance has been illegally and unconstitutionally arrested by the respondents thereby breaching the applicants’ rights to property, life and dignity of their person as guaranteed by the 1999 Constitution under Chapter IV…”

Right to property, life and dignity are provided for in Sections 44, 33 and 34 of the Constitution. From the facts of this case as deposed to in the supporting affidavit and as summarized earlier in this judgment, the arrest and detention of the truck/trailer of the respondents relates to their property rights and has nothing to do with right to life and dignity of the human person. The 1st and 2nd respondents attempted to bring it in by deposing in paragraph 15 of their affidavit in support of the motion on notice at page 24 of the record “that the applicants, their workers, members of their families and dependants suffered financially, emotionally, economically and physically (with some dead) as a result of the said illegal arrest and detention of the said Truck/Trailer.” This averment is too remote and the facts certainly cannot form the basis of a claim for breach of right to life or dignity of the human person.

Section 44(1) of the CFRN 1999 provides that:
“No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law that, among other things-
(a)    requires the prompt payment of compensation therefor;
(b)    …
(2)    Nothing in subsection (1) of this section shall be construed as affecting any general law-
(a)…
(b)     to     (j)
(k)    relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;…”
See Eronini v. Eronini [2013] 14 NWLR (Pt. 1373) 32 @ 53 E-G; Adeyemi-Bero v. L.S.D.P.C. [2013] 8 NWLR (Pt. 1356) 238 @ 282 C-G. From the above provision, the 3rd respondent is authorised under Section 44(2) (k) to take possession of the 1st and 2nd respondents’ truck for the purpose of investigation relating to the contraband goods the truck was caught carrying. Further, by Section 169 of the Customs and Excise Management Act Cap C45 Laws of the Federation of Nigeria 2004, the 3rd Respondent is entitled in the lawful operation of its duties to seize any vehicle in which goods regarded as contraband pursuant to Section 167 of the Customs and Excise Management Act (supra) are conveyed. The arrest and detention was not therefore ab initio illegal. See the case of NWANNA VS A-G FEDERATION (2010) 15 WRN 178 @ 187 referred to by learned counsel for the appellant where Mukhtar JCA (as he then was) observed:
“An arrest or detention the subject of Fundamental Rights Enforcement Procedure Rules is only that which violates any provision in the Constitution or any Federal or State law for the time being in force”
But by the continued detention of the truck for up to two years, especially after the contraband goods were returned, the 3rd respondent removed itself from the protection provided by Section 44 (2) (k) of the Constitution. It was also no longer protected under Section 169 of the Customs and Excise Management Act Cap C45 Laws of the Federation of Nigeria 2004 because it was no longer acting in lawful operation of its duties. Its illegal act in detaining the truck for such a long period and after it had released the contraband goods it was conveying was in breach the fundamental rights of the 1st and 2nd respondent as guaranteed by Section 44 of the 1999 Constitution. This action filed under the Fundamental rights Enforcement Procedure Rules was therefore competent.

The second part of issue 1 is whether the action was time barred. The learned trial judge in his judgment at page 78 on whether or not the suit was statute barred within Order 1 Rule 3(1) said the law is that non-compliance with any provision of the Fundamental Rights (Enforcement Procedure) Rules cannot defeat an application under the Rules. He relied on the case of F.R.N. vs. Ifegwu (2003) 15 NWLR (Pt. 842) 113 @ 179 where Uwaifo JSC observed:
“The manner in which the court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the rights so guaranteed under the constitution. The court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons…That seems to underline the concerns in regard to redressing a contravention of a fundamental right by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.”
It is obvious that the above passage is concerned with the method of commencing a fundamental rights action. It is a misconception for the learned trial judge to interpret the case to mean that non compliance with any provisions of the Fundamental Rights (Enforcement Procedure) Rules cannot defeat an action under the Rules. Of what use are the provisions then? There is a very long line of authorities where suits have been thrown out for failure to comply with the Rules. See Chukwuogor vs Chukwuogor (2005) LPELR – CA/C/100/2004 ; Onyemaizu vs. Orjiakor (2000) 6 NWLR (Pt. 659) 25 @ 47; Medeyinlo vs. Jembi & Anor (2011) LPELR-CA/L/361/08; Ezeadukwa vs. Maduka (1997) LPELR-CA/E/201/95; Ogwuche & Ors vs. Mba & Ors (1994) 4 NWLR (Pt. 336) 75 @ 85 E-F.

The learned trial judge fell into another serious error when he said at page 79 of the record that since the consideration of whether the suit is statute barred or not is at the stage of obtaining leave which is normally ex parte; that once the trial judge is satisfied that leave should be granted or the delay is explained to the satisfaction of the judge, then that should be the end of the matter. That is clearly a wrong principle of law. The mere fact that the application for leave is ex parte underscores the fact that the learned trial judge cannot be right. When the motion on notice comes up for hearing and the respondent after reviewing the processes sees a ground that deprived the court of jurisdiction to hear the case, even though leave had been granted, the respondent is surely at liberty to raise the issue. Order 1 Rule 3(1) of the Fundamental Right (Enforcement Procedure) Rules provide that the application for leave to enforce fundamental rights must be “made within twelve months from the date of the happening of the event…” In the case of Egbe v. Adefarasin (Supra) the Supreme Court held that where the law provides for the bringing of an action within a prescribed period, in respect of cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by the Statute. Action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. In the case of ARAKA VS. EJEAGWU (Supra) @ 865 – 866 H-A Kalgo JSC observed:
“Statute-barred” simply means barred by a provision of the statute. It is usually as to time, i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limited time or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the court will treat it as such.”
A situation similar to the one under consideration came up in the case of N.D.I.C. vs. O’Silvawax Int’l Ltd [2006] 7 NWLR (Pt. 980) 588 @ 609 C-D. The action under the Fundamental Rights (Enforcement Procedure) Rules was brought sixteen months after the seizure of the respondent’s vehicles. After leave was granted and the motion on notice was filed, the appellant raised a preliminary objection that the suit was statute barred. The Court of Appeal Enugu Division held that by virtue of Order 1 Rule 3(1) of the Fundamental Rights (Enforcement Procedure) Rules, any application or suit in contemplation of the fundamental rights enforcement procedure must be brought within a period of twelve months from the date of the happening of the event, matter or act complained of or such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay, is accounted for to the satisfaction of the court or judge to whom the application is made. The respondent having failed to account for the delay, the application was declared incompetent and struck out. In the same vein, the 1st and 2nd respondents in this appeal did not account for the delay in bringing their suit 24 months after the cause of action arose. In their brief, it was argued for the 1st and 2nd respondent that the act complained of was a continuous one. It was held in N.D.I.C. vs. O’Silvawax Int’l Ltd (Supra) that a continuous act is applicable to a case of nuisance which will continue until abated. It does not therefore apply in this type of case where the cause of action accrued on the 8th of April 2005 when the truck was arrested. It is on that date that the right of the respondents to seek redress accrued. They should have sued within 12 months of that date. The action was therefore clearly statute barred. See also Oladekoyi v. I.G.P. [2011] 16 NWLR (Pt. 1273) 406 @ 428 E-G.
It is gratifying that under the Fundamental Rights (Enforcement Procedure) Rules 2009 both application for leave (Order 11 rule 2); and limitation of time within which to institute action (Order 111 rule 1) have all been abolished. Under the new law fundamental rights cases can now be heard on their merits devoid of all these vexatious technicalities.

The learned trial judge erred in refusing to uphold the preliminary objection of the appellant on the ground that the suit was statute barred. On that ground, this appeal succeeds and is allowed. The ruling of A.R. Mohammed J is hereby set aside. The aspect of the preliminary objection that the suit is statute barred is upheld. The action is struck out. I make no order as to costs.

TIJJANI ABUBAKAR, J.C.A.: Where the law provides for bringing an action within a prescribed period in respect of a cause or matter accruing to the Plaintiff, proceedings shall not be brought after the prescribed period. I also agree with my learned brother that, the learned trial judge fell into grave error by refusing to uphold the preliminary objection, certainly under the fundamental Rights Enforcement Procedure Rules 1979, an aggrieved applicant must institute his action within twelve months from the date the cause of action accrued, having failed to do so, Applicants lost the right to institute an action in Court to ventilate their grievance See: MICHAEL OBIEFUNE V. ALEXANDER OKOYE (1962) ALL NLR 375. FRED EGBE V. ADEFARASIN, (1987) 1 NSSC 463, and SAVANNAH BANK OF NIGERIA LTD. V. PAN ATLANTIC SHIPPING (1987) 1 NSCC 67.

For the above reason and the more elaborate reasons set out in the lead Judgment delivered by my learned Brother IYIZOBA JCA, I also allow the appeal, set aside the ruling, and order that the action brought under the Fundamental Rights Enforcement Procedure Rules 1979 be and is hereby struck out. Parties shall bear their respective costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother CHINWE EUGENIA IYIZOBA JCA just delivered. I agree with the reasoning and conclusion expressed therein. I wish to add a few words of mine.
Section 44 (1) of the Constitution of the Federal Republic of Nigeria (as amended) states:
No moveable property or any interest in an immoveable property shall be taken in possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for purposes prescribed by a law that, among other things-
a. requires the prompt payment of compensation therefore and
b. gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
Clearly, the Constitution of the Federal Republic of Nigeria 1999 (as amended) pursuant to Section 43 and 44 thereof safeguards the right of every Nigerian citizen to acquire and own property anywhere in Nigeria.
Section 44 (1) as reproduced above provides that where the property of a citizen is sought to be acquired compulsorily, compensation must be paid promptly to the affected owner of the property.

However, the provision of Section 44(1) is apparently qualified by subsection 2 of that section which provides:
Nothing in sub-section (1) of this Section shell be construed as affecting any general law –
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. relating to the temporary taking of possession of property for the purpose of examination. Investigation or enquiry;…
The above provision is clearly a validation of provision of Section 167 of the Customs and Excise Management Act CAP C45 LFN 2004 which empowers to detain and seize goods that are deemed contraband.
Evidently, it is expected that in the performance of this duty, such vehicle that is being used to convey the goods will be seized as well.
Section 167 provides thus:
“Any officer or police officer, or any other person authorized in that behalf by the Board, may at any time seize or detain anything liable to forfeiture under the customs and excise laws or which such officer, police officer or other person has reasonable grounds to believe is liable to forfeiture thereunder.”
From page 6 of the record, the Applicants/1st and 2nd Respondents sought inter-alia: “a declaration that the continuing arrest and detention of the Applicant’s Truck/Trailer with Registration No AW 213 EKY by the Respondents from the 8th day of April 2005 without legal or moral justification is illegal and unconstitutional.” As Appellant rightly submitted, it is apparent that in the instant case the 3rd Respondent’s seizure of the vehicle, subject matter of this suit was done pursuant to the exercise of the power conferred upon them by the Customs and Excise Management Act which comes under the exception provided by Section 44 (2) (k) reproduced above.

It is particularly for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I also allow this appeal and abide by the consequential orders made in the lead judgment.

Appearances

J.O. MBAMALU ESQ with O.F. EMODI (Miss)For Appellant

AND

TOYIN BASHORUN (Miss) with O.C. MBADIWE ESQ for the 3rd Respondent.
1st and 2nd Respondents not representedFor Respondent