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UKPE v. COMPTROLLER GENERAL OF (NIG) CUSTOMS SERVICE (2021)

UKPE v. COMPTROLLER GENERAL OF (NIG) CUSTOMS SERVICE

(2021)LCN/15763(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, July 14, 2021

CA/L/1047/2019

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

MARGARET THOMPSON UKPE APPELANT(S)

And

COMPTROLLER GENERAL OF NIGERIA CUSTOMS SERVICE RESPONDENT(S)

 

RATIO

WHETHER OR NOT FUNDAMENTAL HUMAN RIGHTS PROCEDURE IS SUI GENERIS

Fundamental Human Rights Procedure is sui generis and has its substantive law which is the 1999 Constitution of the Federal Republic of Nigeria and complimented by the Fundamental Rights (Enforcement Procedure) Rules 2009 which prescribes the procedure to be adopted inter alia in relation to the filing of Fundamental Rights Enforcement cases. Order II Rules 2-7 of the FREP Rules, 2009 list out the mode of commencement of Fundamental Right matter. Thus:-
2) “An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.”
3) “An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made.”
4) “The affidavit shall be made by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.”
5) “Every application shall be accompanied by a written address which shall be succinct argument in support of the grounds of the application.”
6) “Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.”
7) “The applicant may on being served with the Respondent written address file and serve an address on points of law within five days of being served and may accompany it with a further affidavit.”
​In the case of Din vs. Attorney General of the Federation (1988) LPELR-948 (SC) the Supreme Court stated that:- “The Fundamental Rights (Enforcement Procedure) Rules 1979 have prescribed the correct and only procedure for the enforcement of fundamental rights which arise under Chapter IV of that Constitution”.
The mode of commencement of a Fundamental Right procedure is as prescribed for by the FREP Rules by originating summons with a supporting affidavit and statement in support. No condition precedent is required. In Udene vs. Ugwu (1997) 3 NWLR (Pt. 491) 62 it was held:- “Where a procedure has been prescribed by a statute for a redress or an act to be done or required to be done, and there is no doubt from the language used in the statute that that should be the only procedure available, the Court or any Tribunal would not allow any departure from the procedure”.
PER BAYERO, J.C.A.

WHETHER OR NOT AN APPLICANT WHOSE FUNDAMENTAL RIGHTS HAS BEEN VIOLATED IS ENTITLED TO COMPENSATION

The law is trite and the case law on the issue is replete, that once the Court has found that the Fundamental Rights of an Applicant has been violated by the act/acts or conduct of the Respondent, the Applicant is entitled to compensation. Section 35 (1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria provides:-
35(1) “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – …”
35(6) “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”
It therefore follows that damages in compensation legally and naturally follow every act of violation of a citizen’s Fundamental Right. In the case of Iwununne vs. Egbuchulem & Ors (2016) LPELR-40515 (CA) this Court stated that:- “…And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of Applicant’s fundamental rights. See Section 35(6) of the 1999 Constitution and the case of Ozide & Ors vs. Ewuzie & Ors (2015) LPELR-24482 (CA) where this Court held: The law is trite that damages in compensation, legally and naturally follow every act of violation of citizen’s fundamental right. See Section 35 (6) of the 1999 Constitution as amended. See also Agu vs. Okpoko (2009) LPELR-8286 (CA).”
Furthermore, the Supreme Court in the case of Jim-Jaja vs. C.O.P. Rivers State (Supra) held that:-
“…Once the Appellant proved the violation of his fundamental right by the Respondents, damages in form of compensation and even apology should have followed.”
PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court Lagos delivered on 28th July, 2019 in Suit No. FHC/L/CS/2084/2018 by M. S. Hassan J. The Appellant prayed the lower Court for the following reliefs:
1. A DECLARATION that the directive by the Comptroller General of Customs contained in the circular dated the 18th day of September, 2018 with Reference No. NCS/ ENF/ ABJ/ S.78. V.III ordering the arrest on sight and detention of the Applicant by the officers and men of Nigerian Customs Service or servants, agents, and/or privies of the Respondent without justification and/or an order of any competent Court in Nigeria constitutes a gross violation of the Applicant’s fundamental rights guaranteed under Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and Articles 4, 5, 6, and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 LFN 2004 and is therefore illegal and unconstitutional.
​2. A DECLARATION that the order/directive issued by the Respondent to place the Applicant on a watch list purportedly connected to a case of alleged conspiracy, criminal breach of trust, money laundering and misappropriation of public funds as contained in the Respondent’s letter/circular of 18th day of September, 2018 with Reference No. NCS/ENF/ABJ/S.78. V.III ordering the arrest and detention of the Applicant wherever sighted is ultra vires and therefore, null and void.
3. A DECLARATION that the Respondent’s letter of 18th day of September, 2018 with Reference No. NCS/EMF/ABJ/S.78. V.III is illegal, unconstitutional, null and void and a complete nullity.
4. A DECLARATION that the acts of Respondent of deliberately instigating and setting in motion the machinery for the arrest, detention, harassment, molestation, intimidation and embarrassment of the Applicant contrary to the law amounts to a gross violation of the Applicant’s Constitutionally guaranteed rights as enshrined in Sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 5, 6 and 12 of the African Charter on Human and People’s Right.
5. A DECLARATION that the publication by the Respondent of its directive for the arrest and detention of the Applicant to the whole world vide the internet has put the Applicant’s life in perilous or harm’s way and is a violation of the Applicant’s right to life and privacy in breach of the provisions of Sections 33, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4 and 12 of the African Charter on Human and Peoples’ Right.
6. A MANDATORY order compelling the Respondent whether by themselves or by their officers, agents, servants, privies of otherwise howsoever to forthwith desist from harassing, intimidating and/or threatening the Applicant with arrest.
7. AN INJUNCTION restraining the Respondent whether by themselves or by their officers, agents, servants, privies or otherwise howsoever described from further threatening the Applicant with arrest, arresting, detaining or in any other manner infringing on the fundamental rights of the applicant.
8. AN ORDER of this Honourable Court restraining the Respondent either by himself, agents, servants, officers, privies, or whosoever acting on his behalf from further instigating/directing his officers, men or staff from arresting, detaining, prosecuting, harassing, molesting, intimidating and embarrassing the Applicant.
9. AN ORDER for payment of N1,000,000,000.00 (One Billion Naira) as Compensation to the Applicant for the unlawful and unconstitutional order of arrest and/or detention of the Applicant.
AN ORDER directing the Respondent to take down the publications of his unlawful directive form the internet and to publish a full and unqualified apology to the Applicant to be given a prominent place on the front pages of Two (2) widely read/circulated newspapers in Nigeria and a retraction of the said unlawful orders with Reference No. NCS/ENF/ABJ/S.78 V.III published on the internet.

The Respondent neither entered appearance nor file any response to the suit before the lower Court, either by way of counter affidavit and or any written arguments in opposition to the Appellant’s application. The trial judge entered judgment in favour of the Appellant thus;
“In the instant case, the weighty averments of the Applicant in her affidavit in support of this application were not denied by the Respondent and have remained uncontroverted by the Respondent. Since the Respondent did not file any counter affidavit in the instant action, I am obliged to rely on the facts contained in the 21 paragraph affidavit sworn to by the Applicant on record in support of the originating application, especially when no reason has been adduced why reliance should not be placed on it.”

The trial judge proceeded to grant reliefs 1, 2, 3, 4, 5, 6, 7 and 8 sought by the Appellant save for reliefs 9 and 10 which were refused. Aggrieved with the Judgment, the Appellant filed the Notice of Appeal on 26/07/2019, the Appellant’s Brief was filed on 18/09/19 while the Respondent’s Brief was filed on 18/10/19. The Respondent filed a Notice of Preliminary Objection on 18/09/19. The Appellant filed a Reply Brief on 1/12/2020 but deemed on 24/06/2021. The Preliminary Objection prays for:-
1) An Order striking out and/or dismissing this suit for lack of jurisdiction.
2) An Order striking out and/or dismissing this suit for being incompetent.
The grounds upon which the objection is brought are:-
a) That the Respondent/Applicant is not juristic person and cannot sue or be sued. The grounds upon which the Preliminary Objection is brought are stated therein. The Respondent formulated three (3) issues for determination thus:-
1) “Whether or not the Respondent in this suit is a competent party that can sue and be sued.”
2) “Whether or not the failure of the Applicant to serve Pre-action notice on the Respondent does not render the case incompetent in line with Section 6(2)(a-d) of the Nigeria Customs Service Board Act Cap. N 100 Laws of the Federation of Nigeria, 2004.”
3) “Whether or not this case came before this Honourable Court initiated by due process of law upon the fulfillment of the condition precedent to the exercise of its jurisdiction.”

On issue one, it was argued that where an action is brought against a non juristic person in law, the Court would have no jurisdiction to try it. According to Counsel, the Respondent is not a competent party by the provision of the enabling law – Sections 3(b) and 6 (1) of the Nigeria Customs Board Act Cap N100 LFN 2004. Reference was made to the case of Abubakar vs. Yar’adua (2008) 36 NSCQR 364-365 Ratio 22. It was further submitted that by the combined reading of Sections 1, 3 and 6 of the Act, the juristic or legal personality that can sue or be sued in matters relating to customs and excise is the board – Nwabueze vs. Nipost (2006) 8 NWLR (Pt. 983) 480 at 529 Paragraphs F to G.

On issue two, it was submitted that the failure to serve pre-action notice on the Respondent renders the suit incompetent. According to Counsel, by Section 6 (2) (a-d) of the Nigeria Customs Service Board Act, it is mandatory that before any action is maintained against the Respondent, a period of one month must have expired after which a pre-action notice must be served on it – Nigercare Development Co. Ltd. vs. Adamawa State Water Board (2008) 34 NSCQR 226 at 243 Ratio 1.

As to issue three, it was the contention of learned Counsel that the Appellant having failed to initiate the suit by due process and having contravened the condition precedent to the exercise of the Court’s jurisdiction, this Court lacks the jurisdiction to entertain same – Madukolu vs. Nkemdilim (1962) All NLR 581 at 589-590; Nigercare Development Co. Ltd. vs. Adamawa State Water Board (Supra) at 259-260. Counsel urged the Court to dismiss the Suit with substantial cost. In the reply brief of the Appellant, Counsel adopted the issues formulated by the Respondent and submitted that there are several cases that were instituted by and against the Comptroller General of Customs, heard and determined by the Appellate Courts; among which are:-
1) Comptroller General of Customs & Ors vs. Gusau (2017) LPELR-42081 (SC).
2) Comptroller General Nigeria Customs Service & Ors vs. Minaj Holdings Ltd. (2017) LPELR-43055 (CA).
3) Comptroller Abdullahi B. Gusau vs. Comptroller General of Customs (2014) LPELR-23367 (CA).

According to Counsel, since the issue is a jurisdictional one and was not raised in the above cases, it can be presumed that the Comptroller General of Customs has the vires to sue and be sued. That the Respondent being an office is a corporate body that can sue and be sued with a legal personality distinct from the occupier of the office –Chief Godwin Onemu & Ors vs. Commissioner for Agriculture & Natural Resources, Asaba & Ors (2019) LPELR-47391 (SC). As to the non issuance of the pre-action notice, it was submitted that it is not in tandem with the urgency required in the Fundamental Right matters to give thirty days Pre-action Notice meant for ordinary civil procedure rules – Gabriel Jim-Jaja vs. Commissioner of Police, Rivers State & Ors (2013) 22 W.R.N 39; Badejo vs. Federal Ministry of Education (1996) LPELR-704 (SC) and Essien vs. Inyang & Ors (2011) LPELR-4125 (CA). That the Respondent did not raise the issue of the non-service of the pre-action notice after he was served with the Appellant’s initiating process to commence the suit against him. Counsel referred to Ntiero vs. NPA (2008) 10 NWLR (Pt. 1049) 129 and Mekaowulu vs. Ukwa West Local Government Council (2018) LPELR-43807 (CA) and submitted that the Respondent is presumed to have waived the non service of the pre-action notice.

According to Counsel, the Appellant has followed the proper procedure for initiating Fundamental Rights Proceedings as provided under the FREP Rules, 2009. That an action under the FREP Rules is not subject to any condition precedent once it is initiated by a process accepted by the Court – Udene vs. Agwu (1997) 3 NWLR (Pt. 491) 62 and Nigerian Stored Products Research Institute & Anor vs. Mathias Ugwu & Ors (2013) 15 WRN 49 at 78.

RESOLUTION OF THE PRELIMINARY OBJECTION
Fundamental Human Rights Procedure is sui generis and has its substantive law which is the 1999 Constitution of the Federal Republic of Nigeria and complimented by the Fundamental Rights (Enforcement Procedure) Rules 2009 which prescribes the procedure to be adopted inter alia in relation to the filing of Fundamental Rights Enforcement cases. Order II Rules 2-7 of the FREP Rules, 2009 list out the mode of commencement of Fundamental Right matter. Thus:-
2) “An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.”
3) “An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made.”
4) “The affidavit shall be made by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.”
5) “Every application shall be accompanied by a written address which shall be succinct argument in support of the grounds of the application.”
6) “Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.”
7) “The applicant may on being served with the Respondent written address file and serve an address on points of law within five days of being served and may accompany it with a further affidavit.”
​In the case of Din vs. Attorney General of the Federation (1988) LPELR-948 (SC) the Supreme Court stated that:- “The Fundamental Rights (Enforcement Procedure) Rules 1979 have prescribed the correct and only procedure for the enforcement of fundamental rights which arise under Chapter IV of that Constitution”.
The mode of commencement of a Fundamental Right procedure is as prescribed for by the FREP Rules by originating summons with a supporting affidavit and statement in support. No condition precedent is required. In Udene vs. Ugwu (1997) 3 NWLR (Pt. 491) 62 it was held:- “Where a procedure has been prescribed by a statute for a redress or an act to be done or required to be done, and there is no doubt from the language used in the statute that that should be the only procedure available, the Court or any Tribunal would not allow any departure from the procedure”.

The Respondent in this case is a competent party being an office, it is a corporate entity that can sue and be sued. It has a legal personality which is distinct from the occupier of the office. In the case ofChief Godwin Onemu & Ors vs. Commissioner for Agriculture & Natural Resources, Asaba & Ors (2019) LPELR-47391 (SC), the Apex Court held that:-
“Commissioner for Agriculture and Natural Resources is a legal person who can sue and be sued. The office of the Commissioner for Agriculture and Natural Resources is constitutionally provided under Sections 192 (1) and 193 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Commissioner of Agriculture and Natural Resources is a body having perpetual succession, constituted and recognized by the laws of Delta State. Thus, it is a juristic person to sue and be sued”.

On the issue of failure of the Appellant to serve pre-action notice on the Respondent, time is of utmost essence in Fundamental Rights Enforcement Proceedings and it is meant to be disposed of most expeditiously. It is therefore not in tandem with the urgency required in the Fundamental Rights matters to give 30 days’ pre-action notice meant for ordinary civil procedure rules. The Respondent by its failure to raise the issue of non service of the pre-action notice before the lower Court is presumed to have waived the non-service of it. In the case of Ntiero vs. NPA (2008) 10 NWLR (Pt. 1094) 129 it was held that:- “It may be mentioned that the effect of non-service of a pre-action notice where it is statutorily required as in this case is only an irregularity which however, renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence”.

From the foregoing therefore, the Preliminary Objection is unmeritorious, it is accordingly dismissed. In the main Appeal the Appellant distilled a lone issue for determination to wit:
“Whether the trial Court was not wrong to have refused to order the Respondent to pay compensation and to offer a public apology to the Appellant, having held that the Appellant’s fundamental rights have been infringed upon”.

According to Counsel, the remedy for any violation of Fundamental rights is that once a wrong has been established to have been committed, there must be a remedy. On the strength of the provisions of Section 35 (1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and decisions in Jim-Jaja vs. C.O.P. Rivers State (2013) 6 NWLR (Pt. 1350) 225 and Agu vs. Okpoko (2009) LPELR-8286(CA), Counsel submitted that once a violation of Fundamental Rights has been successfully proved by an Applicant, he is entitled to compensation and public apology from the Respondent. Counsel argued that the lower Court misapplied the Constitutional provisions cited when, having found that the rights of the Appellant were violated by the Respondent, ought to have awarded him damages in form of compensation as well as public apology as provided by the law – Arulogun vs. C.O.P. Lagos State & Ors (2016) LPELR-40190 and Jim-Jaja vs. COP Rivers State (Supra). That the lower Court, even if not inclined to grant the amount being claimed, did not have such discretion to refuse to award any damages, more so that the Appellant had prayed for it. Cases referred to by the Appellant include Adigun vs. A.G. Oyo State (1987) NWLR (Pt. 53) 648 at 687. In the Respondent’s brief, the Appellant’s lone issue for determination was adopted. According to Counsel, the award of damages fall within the precinct of the discretionary power of Court – Nwobodo vs. A.C.B. Ltd. (1998) 6 NWLR (Pt. 421) 588 as such, the lower Court was right to have declined the award of damages claimed. That the Appellant was neither arrested nor incarcerated by the Respondent and that the decision in Jim-Jaja vs. C.O.P. (Supra) is inapplicable in the instant case.

According to Counsel, the Appellant failed to pray for any special damages in the lower Court as such the Court found no basis to exercise its discretion in his favour. That the Appellant also failed to pray for any special damages as such the Court found no basis to exercise its discretion in his favour – Dumez Nig. Ltd. vs. Ogboli (1972) 1 ALL NLR (Pt. 1) 241.

RESOLUTION OF THE APPEAL
The lower Court on 28th June, 2019 delivered its Judgment wherein it found that the Fundamental Rights of the Appellant have been breached and granted reliefs 1-8 but refused to grant reliefs 9 & 10 of the Applicant’s/Appellant’s claim. At Page 82 of the record of Appeal, the lower Court held thus:-
“From the foregoing I hold that the instant application is meritorious, reliefs 1, 2, 3, 4, 5, 6, 7 and 8 contained on the face of this application are granted as prayed while relief 9 is refused and in place of relief 10 is: An order is hereby granted directing the Respondent to take down the Publications of the unlawful directive from the internet.”

The law is trite and the case law on the issue is replete, that once the Court has found that the Fundamental Rights of an Applicant has been violated by the act/acts or conduct of the Respondent, the Applicant is entitled to compensation. Section 35 (1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria provides:-
35(1) “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – …”
35(6) “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”
It therefore follows that damages in compensation legally and naturally follow every act of violation of a citizen’s Fundamental Right. In the case of Iwununne vs. Egbuchulem & Ors (2016) LPELR-40515 (CA) this Court stated that:- “…And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of Applicant’s fundamental rights. See Section 35(6) of the 1999 Constitution and the case of Ozide & Ors vs. Ewuzie & Ors (2015) LPELR-24482 (CA) where this Court held: The law is trite that damages in compensation, legally and naturally follow every act of violation of citizen’s fundamental right. See Section 35 (6) of the 1999 Constitution as amended. See also Agu vs. Okpoko (2009) LPELR-8286 (CA).”
Furthermore, the Supreme Court in the case of Jim-Jaja vs. C.O.P. Rivers State (Supra) held that:-
“…Once the Appellant proved the violation of his fundamental right by the Respondents, damages in form of compensation and even apology should have followed.”

From the available evidence as shown in the record of Appeal and the findings of the lower Court the Appellant’s right has been breached by the Respondent. The lower Court has the sacred duty to prevent the violation of citizen’s rights. This Appeal is therefore meritorious and is hereby allowed. In the circumstances, it is hereby ordered as follows:-
1) The Respondent is hereby ordered to pay as compensation to the Appellant the sum of One Million Naira (N1,000,000) for the unlawful and unconstitutional order of arrest and/or detention of the Appellant.
2) The Respondent is ordered to publish a full and unqualified apology to the Applicant on the front pages of two (2) widely read and circulated daily Newspapers in Nigeria.
No cost is awarded. Parties to bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by learned brother: Abdullahi Mahmud Bayero, JCA., I endorse, in toto, the reasoning and conclusion in it. l too, allow the appeal in the manner decreed in the leading judgment

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA and I am in agreement with the reasoning and conclusions in allowing this Appeal as meritorious. I subscribe to the consequential orders made in the lead judgment.

Appearances:

Dr. Charles Mekwunye For Appellant(s)

…For Respondent(s)