OJAKOVO v. FRN & ANOR (2020)

OJAKOVO v. FRN & ANOR

(2020)LCN/15407(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 19, 2020

CA/AK/25C/2018

RATIO

WORDS AND PHRASES: “FORFEITURE”

DUTY OF COURT: FINDINGS OF FACT: WHETHER A JUDGE CAN RELY ON SPECULATIONS IN THE CONSIDERATION OF A CASE BEFORE HIM

The law is quite settled that a Judge or Court is not entitled to embark upon any type of speculation in the consideration of a case before him/it. Findings must rest on the evidence adduced in the case and where no material exists which may fairly suggest a particular issue, it is not the business of the Judge or Court to speculate as to that issue. See the cases of:
(1) Panalpina v. Wariboko (1975) 2 SC, p. 29 at p. 35;
(2) Fawehinmi v. N.B.A. (No. 1) (1989) 2 NWLR (Pt. 105) p. 494; (3) Olufeagba & Ors. v. Abdul-Raheem & Ors. (2009) 18 NWLR (Pt. 1173) p. 384 and (4) Kalu v. F.R.N. & Ors. (2016) LPELR-40108 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

ROLAND O. OJAKOVO APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. GODDAY OMOLE RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal questions the exercise of the discretion of the Federal High Court, Akure Judicial Division per Olubanjo, J. (hereinafter referred to as “the trial Court”) in the application of the Appellant dated and filed on the 25th of May, 2017, as an interested party in Charge No. FHK/AK/20C/2017 between the 1st Respondent/Complainant and one Godday Omole, 2nd Respondent/Defendant. In the said application of the Appellant, he sought the following orders:
1. An order of the trial Court setting aside an interim forfeiture order granted the 1st Respondent on the 4th day of April, 2017.
2. An order of the trial Court directing the Complainant/1st Respondent to release to the Applicant/Appellant forthwith, his Toyota Sienna Space Bus with Reg. No. GWA745TK and Chassis No. 4T3ZF19C71U339425. The Appellant being the bona fide owner of the same vehicle.

The Appellant’s application was supported with an affidavit of twenty-nine paragraphs deposed to by the Appellant himself and nine exhibits marked Exhibits A1 to A8 and B. The relevant paragraphs of the supporting affidavit, paragraphs 4 to 29 are hereunder reproduced verbatim for good understanding and ease of reference as follows:
“4. That the Defendant herein is unknown to me.
5. That I am a businessman trading under the name and style of Rokovo Enterprise.
6. That my said company deals in export of oil and gas businesses.
7. That I am the bona fide owner of Toyota Sienna Space Bus with Reg. No. GWA/745/TK and Chassis No. 4T3ZF19C71U339425. The copies of the particulars of the said vehicle are herewith exhibited and marked exhibits A1-A8.
8. That sometimes in February 2017, a friend of mine named Charles Chima, demanded the said Toyota Sienna Space Bus for the purpose of conveying his family members to his traditional engagement ceremony.
9. That upon his request, I released the said vehicle to him with a condition to return my said vehicle on the next day.
10. That to my greatest surprise the said Mr. Charles Chima disappeared with my vehicle.
11. That pursuant to my investigation, I was told that my missing vehicle was seized by NDLEA operatives and same was impounded at their custody.
12. That I immediately caused my solicitors to write NDLEA for the release of the said vehicle to me. Copy of the letter dated 27th day of March, 2017 written to the State Command National Drug Law Enforcement Agency (NDLEA) is herewith exhibited and marked exhibit B.
13. That I was informed by my Solicitors that the Defendant, who was in possession of my vehicle, has been charged before this honourble Court.
14. That my Solicitors further informed me that the Complainant’s Counsel has obtained an Interim Order of Forfeiture on the 4th day of April, 2017.
15. That I have no prior knowledge nor consented to the use of my vehicle to transport the alleged illicit drugs.
16. That I use my seized vehicle to facilitate my trade as well as to convey my children to school and church.
17. That the continued detention of my said vehicle has negatively affected my business and same also cost me loss of finance.
18. That I am not guilty of connivance or collusion with anyone whatsoever in the commission of the offence being alleged.
19. That my vehicle will continue to deteriorate if same is allowed to continue in detention.
20. That I am not the accused person standing trial before the Court.
21. That the case in respect of which my vehicle is impounded is within the jurisdiction of this honourable Court.
22. That I undertake to produce the vehicle whenever needed.
23. That I herein deny any responsibility or connection as regards the incident leading to the seizure of my vehicle.
24. That the said vehicle is being parked at the NDLEA office under the sun and rain without covering same, since the inception of this matter.
25. That the value of the said vehicle is reducing and depreciation has set in since the car has been on the same spot for a long time.
26. That I undertake to produce the said vehicle any time I am requested to do so if released to me on bond pending the determination of the substantive suit.
27. That the Respondent will not be prejudiced if my reliefs are granted as wear and tear have set in.
28. That it is in the interest of justice to grant this application as granting same will not prejudice the Respondent.
29. That I depose to this affidavit in good faith and in accordance with the Oaths Act.”

Exhibits A1 to A8 and B, the various vehicle particulars and documentations are contained in pages 19 to 28 of the Record of Appeal.

Upon service of the application of the Appellant and its accompaniments on the 1st Respondent, the 1st Respondent in response thereto filed a counter-affidavit of seven paragraphs and three exhibits marked Exhibits NDLEA I, NDLEA II and NDLEA III. The counter-affidavit was deposed to by one Happy Johnson, a litigation Secretary with the National Drug Law Enforcement Agency, Ondo State Command, Akure. The relevant paragraphs of the counter-affidavit, paragraphs 2 to 6(a), (b), (c) and (d) are hereunder reproduced verbatim for good grasp and easy referencing as follows:
“2. That by virtue of my position thereof, I am conversant with the facts of this case.
3. That I have the consent and authority of the Complainant/Respondent to depose to this counter affidavit.
4. That the 1st Respondent denies paragraphs 5, 6, 7, 8, 9, 10, 11, 13, 15, 16, 17, 18, 23 and 24 of the affidavit in support of the motion dated 25/5/2017. Same are false in many material particulars.
5. That I have been informed by Okoro Samson Samuel, SNA, the investigation Narcotic officer of this case in our office on 25/09/17 at about 08:00 am and I verily believed as follows:
a. That on 19/09/2017, NDLEA officers went on search operations at Afolabi Camp, Elewoyo, Akure, based on information that cannabis sativa activities were going on there.
b. That on getting to the scene of the crime, a Siena bus with Registration No.:GWA/745/TK was being loaded with cannabis sativa.
c. That on sighting NDLEA officers, the owner of the said vehicle and others who were loading the cannabis sativa inside the vehicle took to their heels and ran away.
d. That a search conducted on the said vehicle abandoned by its owner led to the recovery of 204.5 kilograms of cannabis sativa.
e. That one Godday Omale, who was staying in the House where the said vehicle and the cannabis sativa were abandoned was arrested and charged before this Honourable Court for the offence of unlawful permission to allow the use of premises for the processing of 204.5 kilograms of cannabis sativa.
f. That upon investigation, the said Godday stated in his statement that he is not the owner of the said vehicle and that the owner had ran into the nearby bush with the people that were loading the cannabis sativa inside the vehicle and that he was only a tenant staying in that house.
– A copy of his statement is hereby attached and marked as “Exhibit NDLEA I”.
g. That both the arresting and witnessing NDLEA officers stated in their statements that the people loading the cannabis sativa inside the said vehicle at the time of the arrest at the house and premises of the said Godday Omale, took to their heels and ran away on sighting them.
– Copies of the statements are hereby attached and marked as “Exhibit II and III”.
h. That a field test conducted on the recovered substances proved positive for cannabis sativa.
i. That investigation revealed that the said vehicle loaded with the recovered substances at the time of arrest and which was the instrumentality of conveyance falls within property subject to forfeiture.
j. That there has been intense efforts and manhunt to arrest the owner of the vehicle who ran away on sighting NDLEA officers to face the wrath of the law.
6. That I have been further informed by Mr. K. Tawum, Esq. of Counsel in our office on 25/09/17 at about 08:30 am and I verily believed as follows:
a. That the said Godday Omale, has since been charged before this Honourable Court.
b. That on 4/4/17, this Honourable Court upon application made by the 1st Respondent has granted an interim forfeiture order of the said vehicle pending the final determination of the charge No. FHC/AK/20C/2017.
c. That the 1st Respondent will be prejudiced if this application is granted as the recovered substance and the said vehicle used as instrumentality of conveyance are vital evidence for the 1st Respondent in proving its case before this Honourable Court.
d. That this application be refused in the interest of justice.”

Exhibit NDLEA I is the statement of the 2nd Respondent. Exhibits NDLEA II and III are the statements of the two NDLEA Operatives who investigated the alleged case against the 2nd Respondent: See pages 36 to 40 of the Record of Appeal.

At this juncture, it is apposite to state the brief background facts relevant to the substance of this appeal. The 2nd Respondent was charged to the trial Court by the 1st Respondent on a one count charge of unlawfully permitting and causing the use of his premises for the purpose of storage, concealment and processing of 204.5 kilograms of Cannabis Sativa, a narcotic drug similar to Cocaine, Heroin and LSD, contrary to and punishable under Section 12 of the National Drug Law Enforcement Agency Act, Cap. N30, Laws of the Federation of Nigeria, 2004. The substantive case is not the subject of this appeal.

During the investigation of the alleged case against the 2nd Respondent, one motor vehicle, Toyota Sienna Space Bus Reg. No. GWA/745/TK and Chassis No. 4T3ZF19C71U339425, belonging to the Appellant was recovered from the premises of the 2nd Respondent loaded with the said narcotic and therefore seized by the 1st Respondent in connection with the alleged crime. On the 4th of April, 2017, the trial Court granted to the 1st Respondent, an interim order of forfeiture of the said motor vehicle pending the determination of the case against the 2nd Respondent. The Appellant had, according to him, earlier given the said vehicle to his friend, one Charles Chima, for use for a couple of days. The said Charles Chima however failed to return the vehicle to him and he has since remained at large.
The Appellant later found out that his missing vehicle had been impounded by the 1st Respondent in connection with an allegation of a crime, and the matter had been charged to the trial Court. The Appellant therefore instructed his Counsel to make a demand in Exhibit B, for the release of the said vehicle and in the process was informed that the trial Court had granted to the 1st Respondent an interim order of forfeiture of the vehicle, pending the determination of the substantive case against the 2nd Respondent.

It is pertinent to state that, there is no known relationship or connection between the Appellant and the 2nd Respondent especially relating to the crime the 2nd Respondent was charged with by the 1st Respondent. As alluded to hereinbefore, the vehicle the subject-matter of this case was recovered in a raid by the 1st Respondent in the premises of the residence of the 2nd Respondent. It is equally important to state that the 2nd Respondent is a tenant at the said residence. During the raid, some other persons sighted loading the recovered drugs inside the said vehicle escaped and remain at large.
Now, it is in the pursuit of recovering his vehicle in the custody of the 1st Respondent that the Appellant filed the application the subject of this appeal. The 2nd Respondent was not a party in the application and therefore not contesting the instant appeal. After the pleadings of the Appellant and the 1st Respondent had been exchanged, the application was argued on the 7th of November, 2017 and ruling thereon was delivered on the same date. By the said ruling, the trial Court in dismissing the application of the Appellant held “inter alia” as follows:
“The prosecution has also alleged and insisted that the vehicle is an indispensable link to the actual perpetrators of the offence of possession of illicit drugs, who have absconded and are now at large. See paragraph 5j of the Counter-Affidavit. Applicant, by his refusal to appear in Court or the National Drug Law Enforcement Agency office, has also shown that he may be evading arrest …Having carefully considered the facts presented by the parties, I am satisfied that the officers of the Respondent impounded and seized the vehicle, which is the subject matter of this application, upon reasonable suspicion that it was used to commit an offence, and as such they applied for and obtained an order of interim forfeiture with regard to that vehicle. That order of interim forfeiture is still in force. As such the Respondents actions are within the purview of Section 44(2)(K) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 33, 34 of the National Drug Law Enforcement Agency (NDLEA) Act Cap N30, Laws of the Federation of Nigeria 2004.
In the circumstances of the instant application, that vehicle is not only an exhibit in the substantive case but it is also an indispensable link to the arrest of absconding suspects. To release same to the Applicant (who for one flimsy excuse or the other has made himself unavailable to the National Drug Law Enforcement Agency officers and to the Court) would sever that link to the detriment of the prosecution. Mr. Oyolola’s explanation to this Court earlier on, about the Applicant’s absence is not cogent enough. If this application is as crucial to the success of his business as he has stated in his Affidavit in Support, he would eagerly make out time to be present in Court.
In the peculiar circumstances of this case, the judicial and judicious exercise of the discretion bestowed upon this Honourable Court is to refuse the application.”

It is apposite to reiterate the laws that are relevant to the issues involved in this appeal viz: Sections 331 and 337 of the Administration of Criminal Justice Act, 2015 (ACJA) which provide as follows:
“Section 331- (1) Where any proceeding or trial in a criminal case is concluded, the Court may make such order as it thinks fit, for the disposal by destruction, confiscation or delivery to a person appearing to be entitled to the possession or otherwise, of any movable property or document produced before it or in its custody or regarding which an offence appears to have been committed or which has been used for the commission of an offence.
(2) Notwithstanding that the trial, proceeding or an appeal is pending in respect of the case, the Court may, in any case, make an order under the provisions of sub-section (1) of this section for the delivery of any property, to a person appearing to be entitled to the possession of the property, on his executing a bond, with or without sureties, to the satisfaction of the Court, undertaking to restore the property to the Court.
(3) An order made under this section may be appealed against as if it is a decision in the final judgment of the Court giving the direction.
Section 337- (1) The seizure by the police of property taken during arrest or investigation under this Act, or alleged or suspected to have been stolen or found in circumstances which create a suspicion of the commission of an offence, shall, within a period not exceeding 48 hours of the taking of the property or thing, be reported to a Court, and the Court shall make an order in respect of the disposal of the property or its delivery to the person entitled to its possession or such other orders as it may deem fit in the circumstances.
(2) Where the person entitled to the possession of property referred to in sub-section (1) of this section is unknown, the Court may detain it and shall issue a public notice specifying the articles of which the property consists and requiring any person who may have a claim to it, to appear before the Court and establish his claim within six months from the date of the notice.”

This instant appeal is therefore sequel to the provision of Section 331 (3) of the ACJA (Supra). It was equally in pursuance of its discretionary powers under the provisions of Section 337 of the ACJA (Supra), that the trial Court had acted and refused the application of the Appellant herein.
The Appellant was dissatisfied with the decision of the trial Court dismissing his application and filed this appeal against it to this Court. The three grounds of appeal with their particulars contained in the Appellant’s Notice of Appeal dated and filed on the 22nd of November, 2017 are hereunder set out verbatim for good grasp and ease of reference as follows:
“GROUND OF APPEAL
1. The learned trial judge erred in law when he held that “in the circumstances of the instant application, that vehicle is not only an exhibit in the substantive case but it is also an indispensable link to the arrest of absconding suspects.”
PARTICULARS
i. The charge against the 2nd Respondent before the trial Court borders on allowing the 2nd Respondent’s premises to be used for purpose of storage, concealment and processing of cannabis sativa a Narcotic similar to Cocaine, Heroin and LSD.
ii. In the extra-judicial statement of the 2nd Respondent, it was stated clearly by the 2nd Respondent that he doesn’t know the owner of the vehicle.
iii. The vehicle sought to be released does not in any way form part of the exhibits to be relied upon by the prosecution in the substantive case as it was not listed as part of the proof of evidence tendered in Court.
iv. The proof of ownership and other related title documents attached to the Appellant’s application as exhibits are sufficient to invoke the provisions of Section 331(2) of the Administration of Criminal Justice Act 2015 LFN.
v. The 1st Respondent as well as the 2nd Respondent never raised any contrary position as to Exhibit A5 which captured and reflected the photograph of the Appellant attached to the Appellant’s application.
GROUND 2
The learned trial Judge erred in law when he held inter alia;
“If this application is as crucial to the success of his business as he has stated in his Affidavit in support, he would eagerly make out time to be present in Court”.
PARTICULARS
i. There is no law compelling any party to appear physically in Court except an Accused person/Defendant in a criminal case.
ii. The word APPEARANCE OF A PARTY has received judicial interpretation in the case of: Okon Bassey v. Commissioner of Police (2008) LPELR – 984 (Supreme Court) where Onnoghen JSC held as follows:
“a coming into Court as a party or interested person or as a lawyer on behalf of a party or interested person; especially; a Defendant’s act of taking part in law suit, whether by formally participating in it or by an answer, demurrer or motion or by taking post judgment steps in the law suit in either the trial Court or Appellant Court”.
iii. Where a party to a proceeding before a Court is represented by a counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the Court conducting the proceedings orders otherwise.
iv. The trial Court never ordered the Appellant to appear before it in which the Appellant flouted.
v. The Constitution of the Federal Republic of Nigeria which is the supreme law entitles every person to a fair trial which include the personal appearance or appearance through a legal practitioner of a person’s choice.
GROUND 3
The learned trial judge erred in law when he held inter alia;
“In the peculiar circumstances of this case, the judicious exercise of the discretion bestowed upon this Honourable Court is to refuse this application.”
PARTICULARS
i. The learned trial Judge merely dealt with the non appearance of the Appellant and did not bother to address the main and cogent facts averred in the Appellant’s application for the release of the said vehicle.
ii. The Appellant’s application before the trial Court was not properly evaluated.”

In obedience to the rules of this Court, the Appellant’s and 1st Respondent’s briefs of argument were settled and exchanged by their respective counsel. Mr. Toyin A. Oyolola of the law firm of T. A. Oyolola & Co. settled the Appellant’s brief of argument dated and filed on the 4th of April, 2018 but deemed properly filed on the 5th of November, 2018. The three issues donated for determination in the said brief read as follows:
“1. Whether the trial judge was right to have refused the Appellant’s application on the ground that the vehicle sought to be released is not only an exhibit in the substantive case but also an indispensable link to the arrest of the absconding suspects? (Ground one)
2. Whether the Appellant’s appearances in Court is an indispensable factor to grant his application before the lower Court? (Ground two)
3. Whether the learned trial has judiciously and judicially exercised its discretion in refusing the Applicant’s application? (Ground three)”

The 1st Respondent’s Counsel Mr. Kurutsi Tawum of the N.D.L.E.A. for the Federal Attorney General settled the 1st Respondent’s brief of argument dated and filed on the 31st of October, 2018 but deemed properly filed on the 23rd of July, 2020. The sole issue crafted for determination in the brief states as follows:
“Whether having regards to the affidavit evidence and issues canvassed before the trial Court, the Court was not right in coming to the conclusion that in the peculiar circumstances of this case the judicial and judicious exercise of the discretion bestowed upon this honourable Court is to refuse his application?”

The appeal was fixed to be heard on the 23rd of July, 2020. The parties and their respective Counsel were absent at the said hearing. This Court was however satisfied that hearing notices were served on the respective parties’ Counsel. Hence, since the briefs of argument of the Appellant and the 1st Respondent had been properly filed, the appeal was deemed duly argued and responded to pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. As hereinbefore alluded to, the application the subject of this appeal was between the Appellant and the 1st Respondent, hence the 2nd Respondent is not a participant in this appeal.

I have scrutinized the two sets of issues donated for determination by the Appellant and 1st Respondents. The three issues of the Appellant are intertwined and therefore collapsible. What is more, they have been adequately responded to under the sole issue of the 1st Respondent. I will thus adopt the three issues of the Appellant and resolve them together.

RESOLUTION OF THE THREE ISSUES OF THE APPELLANT
“1. Whether the trial judge was right to have refused the Appellant’s application on the ground that the vehicle sought to be released is not only an exhibit in the substantive case but also an indispensable link to the arrest of the absconding suspect? (Ground one)
2. Whether the Appellant’s appearances in Court is an indispensible factor to grant his application before the lower Court? (Ground two)
3. Whether the learned trial has judiciously and judicially exercised its discretion in refusing the Applicant’s application? (Ground three)”

I have scrutinized the submissions of the Appellant’s and 1st Respondent’s Counsel, along with the case and statute laws relied on in the briefs of argument of the parties to buttress their varied stances in the appeal.

As stated in the first paragraph of this judgment, this appeal queries the exercise of the discretion of the trial Court in refusing the application of the Appellant for the release to him of his vehicle in the custody of the 1st Respondent. The said vehicle of the Appellant was seized by the 1st Respondent pursuant to its unlimited powers under Section 32 of the N.D.L.E.A. Act, Cap N30, Laws of the Federation of Nigeria, 2004 which provides that; all instrumentalities of conveyance, including aircraft, vehicles or vessels which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of substances described in paragraph (a) and (b) of the Section, shall be subject to forfeiture. The vehicle, the subject-matter of the Appellant’s application, was alleged to have been used to convey the illegal and prohibited substance, Cannabis Sativa.

The power of a Court to grant an adjournment is a typical exercise of purely discretionary power which must at all times be exercised not only judicially but also judiciously. This is the jurisdiction which is naturally vested in the Courts. See the cases of: (1) Ilona & Ors. v. Dei & Ors. (1971) 1 All NLR p. 8; (2) Mobil Oil (Nig.) Ltd. v. Nabsons Ltd. (1995) 7 NWLR (Pt. 407) p. 254: (3) Unilag & Anor. v. Aigoro (1985) LPELR- 3418 (SC) and (4) Alsthom S. A. & Anor. v. Saraki (2000) 14 NWLR (Pt. 687) p. 415. The law is therefore settled beyond evasion that, a discretion properly exercised by a lower Court will not be lightly interfered with by an appellate Court even if the appellate Court is of the view that it might have exercised the discretion differently. However, where a lower Court exercised a discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice, an appellate Court will assume its duty to interfere with the exercise of that discretion, in order to correct or prevent an injustice. See the cases of: (1) Jonason Triangles Ltd. v. Charles Moh & Partners Ltd. (2002) 15 NWLR (Pt. 789) p. 176; (2) The owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) 15 NWLR (Pt. 844) p. 469 and (3) T.S.A. Ind. Ltd. v. Kema Investments Ltd. (2006) LPELR-3129 (SC).

The trial Court’s refusal of the Appellant’s application was hinged firstly on the fact that the Appellant did not lodge a complaint with the Police that his vehicle was missing, rather, he took it upon himself to investigate the said loss. That when the Appellant got to know that the vehicle was in the custody of the NDLEA, he did not personally go there, in the opinion of the trial Court, for fear of being arrested. These are pure conjectures on the part of the trial Court, in my firm view and I so hold.

Further, the trial Court’s holding against the Appellant for the fact that Appellant was not personally in Court at the hearing of his application, even though he was represented by a counsel is equally of no moment. The law is now well settled beyond any equivocation that where a party to proceedings before a Court is duly represented by a Counsel of his choice, his physical appearance at the proceedings is no longer necessary except where for good reasons, the Court conducting the proceedings orders otherwise. To put it in other words, where in a case a party is not present in person, but has instructed a legal practitioner who is present in person, the party is indeed deemed to have appeared. That is the reason I agree with the Appellant’s Counsel’s position that, the absence of the Appellant at the hearing of the application is not only immaterial, I dare add that it is a non-issue and indeed the Appellant could not be said to be absent since his appointed Counsel was present in person, so, the Appellant was actually present.

The trial Court also stated at page 6 of its ruling contained in page 65 of the Record of Appeal that, “Mr. Tawum earlier submitted that Applicant is also a suspect in this case, and efforts are being made to arrest him.” The foregoing finding to me is absolutely fictitious, as, I have scrutinized the entire Record of Appeal and am unable to find where the said Mr. Tawum, the prosecutor for the 1st Respondent ever made any such submission. Rather, throughout the full length and breadth of the report of the investigation of the NDLEA as contained in the Record of Appeal, and most importantly in the counter-affidavit of the 1st Respondent with its accompaniments in opposition to the application of the Appellant, there is no mention of the involvement of the Appellant in the alleged crime, other than that the illegal substance was found in the vehicle which turned out to be the Appellant’s vehicle.
The statements of the two NDLEA investigating operatives are contained in pages 38 to 40 of the Record of Appeal. Most importantly, at page 36 to 37 of the same Record is the statement of the 2nd Respondent who was charged to the trial Court at the conclusion of their investigation, all the three statements were annexed as Exhibits NDLEA II, NDLEA III and NDLEA I respectively to the counter affidavit of the 1st Respondent. There is no scintilla of evidence to implicate or connect the Appellant to the commission of the crime under consideration and for which the 2nd Respondent was charged.
Very significant is the statement of the 2nd Respondent, Exhibit NDLEA I, in it, the 2nd Respondent did not state that the Appellant or anyone that he knew was amongst the persons he saw loading the illegal substance into the vehicle under consideration.

Furthermore, the trial Court held the opinion that the vehicle in question is an indispensable link to the arrest of the unknown persons suspected to be connected to the commission of the alleged crime. How? The 1st Respondent did not provide any shred of evidence in support of this bare assertion.

In my humble but firm view, the foregoing opinion is so very unavailing. I also fail to see how the case of: Yusufu Muhammed Usman v. NDLEA (Supra) relied upon by the trial Court advances the decision of the trial Court and the cause of the 1st Respondent. The facts of that case and the instant case differ diametrically. In the case of Y. M. Usman v. NDLEA (Supra), the Applicant lent his vehicle to another person and that other person was arrested with the vehicle containing the illicit drugs. In the instant case, the person to whom the Appellant lent his vehicle was/is nowhere to be found although the vehicle was impounded with the illicit drugs loaded therein.
Also, as rightly held earlier by this Court in the case of: FGN v. Akinola (2014) LPELR-23978, as no two cases are exactly the same, each case must be determined on its particular sets of circumstances. In the instant case, the sample of the illicit drugs recovered had been duly tested and found to be in the class of dangerous and prohibited substances and the said illicit drugs are already in the custody of NDLEA. Very vital is the fact that the 1st Respondent did not submit any facts that the Appellant is being investigated, as the 2nd Respondent has already been arraigned before the trial Court and he pleaded not guilty to the charge preferred against him: See page 49 of the Record of Appeal. I do not see anything on the printed Record of Appeal, the only material by which I am bound, to suggest that the 1st Respondent will be hampered in prosecuting the 2nd Respondent or any other person, without tendering in evidence the vehicle of the Appellant in contention.

In sum and from the foregoing illumination, I am of the strong opinion and hold that, in the given circumstances of the instant case, the trial Court cannot be said to have exercised its discretion both judicially and judiciously when it dismissed the Appellant’s application to release his vehicle. The trial Court’s refusal of the Appellant’s application was “mala fide”, arbitrary, capricious, based on conjectures and extraneous considerations and does not meet the ends of the justice of the instant case. The said wrong exercise of the trial Court’s discretion is therefore liable to be interfered with by this Court.

Consequent upon the foregoing, the three issues donated by the Appellant for consideration are hereby resolved in favour of the Appellant and against the 1st Respondent.
The decision of the trial Court delivered on the 7th of November, 2017 is accordingly set aside.

The application of the Appellant dated and filed at the trial Court on the 25th of May, 2017 is granted as prayed. To forestall any equivocalness, it is hereby ordered as follows:
(i) The interim order of forfeiture granted to the 1st Respondent on the 4th day of April, 2017 is hereby set aside.
(ii) The 1st Respondent is accordingly directed to release forthwith to the Appellant, the Appellant’s Toyota Sienna Space Bus with Registration No.:GWA/745/TK and Chassis No.:4T3ZF19C71U339425, the Appellant being the “bona fide” owner of the said vehicle.
I make no order for costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA. The resolutions of issues therein as per the reasoning and conclusion are agreed by me with nothing to add thereto.

I too resolve the three 3 issues distilled by the Appellant from the Grounds of Appeal against the 1st Respondent and in favour of the Appellant. The decision of the Lower Court delivered on the 7th of November, 2017 is therefore set aside by me.

PATRICIA AJUMA MAHMOUD, J.C.A.(DISSENTING) : I have had the opportunity of reading in draft the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA. I am unable to agree with his Lordship in his consideration, reasoning and conclusion reached in the said judgment. This made it imperative to give this dissenting opinion.

This appeal questions the exercise of discretion of Hon. Justice F. A. Olubanjo of the Akure Division of the Federal High Court, in an application filed on the 25th May, 2017, in which the appellant as applicant sought two reliefs as follows:
1) An Order of the trial Court setting aside an interim forfeiture Order granted the 1st Respondent on the 4th day of April, 2017.
2) An Order of the trial Court directing the complainant/1st Respondent to release to the Applicant/Appellant forthwith his Toyota Sienna Space Bus with Reg. No.:GWA/745/TK and Chassis No:4T3ZF19C71U33945. The Appellant being the bona fide owner of the same vehicle.

It is pertinent for a better appreciation of this matter, to state the brief facts as it relates to the vehicle in question. The vehicle a Toyota Sienna Bus with Registration No.:GWA/745/TR was seized by the officers of the National Drug Law Enforcement Agency on the 19th of February, 2017 at Afolabi camp, Eleyowo, Akure South Local Government Area of Ondo State.

On the said date and based on information that activities involving cannabis was going on at that particular area, the officers went on a search operation. On getting to the scene, the persons loading cannabis inside the said vehicle at the premises of the 2nd Respondent on sighting the NDLEA Officers all ran away. The vehicle which was loaded with cannabis at the time of operations was taken to NDLEA office, Akure.

On the 4th of April, 2017, the trial Court upon an application filed and moved by counsel to the 1st Respondent for an interim order of forfeiture of the Toyota Sienna Bus with Registration No.:GWA/745/TK, which bus was used to convey the cannabis, granted the interim order of forfeiture. The appellant filed on application before the lower Court as an interested party praying the Court to set aside the interim order of forfeiture granted by the Court and for the release of the said vehicle to him. The 1st Respondent filed a counter affidavit in opposition to the said application. After hearing both parties to the application, the trial lower Court in a considered ruling delivered on the 7th of August 2017, refused the application.

The appellant being dissatisfied with this ruling, appealed to this Court on three grounds as set out in lead judgment. My learned brother, in the lead judgment determined the appeal on the three issues formulated by the appellant. For the purpose of this dissenting opinion, I would restrict myself to issue 3 as raised by the appellant:-
“Whether the learned trial judge has judiciously and judicially exercised its discretion in refusing the Applicant’s application? (GROUND THREE)”

The power to order forfeiture under the National Drug Law Enforcement Agency Act CAP N30, Laws of the Federation, 2004, the law under which the 2nd Respondent was being tried and consequently to which the said Sienna Vehicle is connected is governed by Section 32(c). The Section provides thus:
“32 Without prejudice to the provisions of any other law permitting the forfeiture of property, the following shall also be subject to forfeiture under this Act and no proprietary right shall exist in them-
(c) all instrumentalities of conveyance, including aircraft, vehicles, or vessels which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of substances describe in paragraph (a) or (b) of this section…”
There is no doubt that the said vehicle was arrested while being used or attempting to be used in the transportation of cannabis, a narcotic or psychotropic substance within the meaning of the Act. The word ‘shall’ used in Section 32 makes it mandatory that any instrumentality of conveyance which includes vehicles used or intended for use to transport or facilitate the transportation of any narcotic drug or psychotropic substance is subject to forfeiture. ‘Forfeiture’ is defined in BLACK’S LAW DICTIONARY, 9TH EDITION, 722 to mean: ” the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty.” This means that by the forfeiture, the title in the Sienna Vehicle was transferred to, in this case, the Federal Government of Nigeria.
From my understanding, all the 1st Respondent needs to prove for an instrumentality of conveyance in this case, a vehicle, to be forfeited is that it was used or intended to be used for transporting psychotropic substance in this case cannabis. There is no dispute that this was established before the interim order was made.
The question to ask really is, how such an order, if made, can be set aside. On the face of the provisions of the Act, in particular Section 32, there is no direct provision for setting aside an order of forfeiture once made. The instant case is different from forfeiture of property obtained from proceeds of crime. The requirement here is very specific, if as in this case, the vehicle was used to or intended to be used to transport cannabis, it would be subject to an order of forfeiture. There is therefore, no dispute that the Sienna in question was used or intended to be used to transport the cannabis.
The question is not whether the appellant was the owner of the vehicle or whether he was connected to the offence, but solely that the vehicle was intended to be used for the transportation of the cannabis. See the decision of this court in M. V. LONG ISLAND V FRN (2018) LPELR-43479 (CA).
I have read the affidavit of the Appellant in the lower Court in support of his application. I must emphasize that this issue is not about ownership of the vehicle or the vehicle being proceeds of crime. As can be seen from the Act itself, forfeiture is covered in other sections of the law. Section 32(c) is specific to a vehicle being used in conveying the substance, narcotic, etc. The story of the Appellant as contained in the affidavit evidence is very bogus but that is neither here nor there. It is also of no moment the opinion expressed by his Lordship in refusing. The provision of the law is clear and unequivocal as to what happens to a vehicle used or intended to be used to transport cannabis. The most important consideration is that the only exceptions to Section 32(c) of the NDLEA Act are as contained in paragraphs (i)-(iii) thereof.
For the avoidance of doubt, I reproduce them:
“(i) no means of conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under this section unless it shall appear that the owner or other person in charge of such means of conveyance was a consenting party or privy to a violation of this Act.
(ii) no means of conveyance shall be forfeited under this section by reason of any act established by the owner thereof to have been committed by any person other than such owner while such means of conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of Nigeria or any party thereof; and
(iii) no means of conveyance shall be forfeited under this section to the extent of an interest of an owner, by reason of any act established by that owner to have been committed without the knowledge, consent or willful connivance of that owner.”
The evidence in the affidavit and further affidavit of the appellant does not satisfy any of these three exceptions. This forfeiture is also not about whether or not the trial of the 2nd Respondent can be continued without the Sienna Vehicle. This forfeiture also has nothing to do with section 44 of the 1999 constitution. It is also not about preservation of the ‘res’ or any such primordial sentiments.
Based on proper interpretation of Section 32 (c) of NDLEA Act and all the surrounding circumstances of this case, I am satisfied that the learned trial judge exercised his discretion Judicially and Judiciously in refusing to set aside the order of forfeiture, There is nothing submitted by the appellant that warrants me disturbing the decision of the learned trial judge in refusing to set aside the Order of forfeiture made by him. Indeed a grant of this application will work Injustice against the 1st Respondent in their fight against drug/substance abuse. I find no merit in this appeal. It fails and I dismiss it. I affirm the decision of the learned trial judge. This vehicle having been caught or arrested in the process of transporting cannabis ought to rightly remain forfeited to the Federal Government within the provisions of SECTION 32(c) of the NDLEA Act, LFN, 2004.

Appearances:

Absent. For Appellant(s)

Absent. For Respondent(s)