The Abuja division of the Federal High Court on Wednesday awarded damages amounting to over N5.5billion against the Nigerian Customs Service (NCS) and the Chairman, Nigerian Customs Service Board (NCSB) in favour of a private firm, Maggpiy Trading TFZE.
The service was found to have acted unlawful by its seizure of 90 containers of rice imported by the firm.
In a suit marked: FHC/CA/CS/40/2017, the private firm told the court how on March 18, 2017, officials of the NCS invaded and sealed up its warehouse in the Tinapa Free Trade Zone (TFTZ), Calabar, containing over 90 containers of rice stored in air-tight containers.
It added that beyond sealing its warehouse with its content, officials of the NCS stole part of the seized rice and detained its 40 trucks, containing 317 transit containers of rice, destined for the Tinapa Free Trade Zone, without lawful justification for 120 days along Onne, Port-Harcourt road.
Delivering his judgment on Wednesday, Justice Inyang Ekwo agreed with the claims of the plaintiff and held that the 1st and 2nd respondents – NCS and the Chairman, NCSB, acted unlawfully and without any justification in law.
Justice Ekwo rejected the defence raised by the NCS and the Chairman, NCSB and their attempt to justify their actions.
The court also faulted the 1st and 2nd defendants’ claim that they acted under the Federal Ministry of Finance Import Guidelines, Procedures and Documentation Requirements under the Destination Inspection Scheme in Nigeria.
Justice Ekwo held that, not only was the document inadmissible and worthless, having not been signed, there was no provision in the document that made it applicable to Free Trade Zones.
“I have studied the document, I cannot find anywhere it is made applicable to Free Trade Zones, which both parties have agreed, is a country within a country.”
The judge also rejected some circular tendered by the Customs to justify their action.
Justice Ekwo held that not only were most of the circulars made after the plaintiff’s rice consignment was seized on March 18, 2017, the defendants failed to show the law and orders pursuant to which the circulars were issued.
“The circular made on March 30, 2017, declaring Free Trade Zones, as land borders cannot apply to this case because it does not have a retrospective effect.
“Therefore, the circulars, made after the plaintiff had imported the rice, and relied upon by the 1st and 2nd defendants, do not apply to this case,” the judge said.
Justice Ekwo also faulted the 1st and 2nd defendant’s argument that they were exempted, under the Customs and Excise Management Act, from any liability and prosecution while applying the provisions of the law.
The judge said such exemption only applies where officials of the NCS are exercising the power granted by the law – the Customs and Excise Management Act,
He added: “It has not been shown to this court the provisions of the said Act that authorises any of the Customs officials to enter and seal a business premises in a Free Trade Zone.
“In that case, the foray of the 1st and 2nd defendants into the territory of the Tinapa Free Trade Zone and Resort, which is not a territory of the 1st and 2nd defendants, and which was not to enforce the provisions of the Nigerian Export Processing Zone Act or any regulation thereof was illegal and unlawful.
“The argument by the 1st and 2nd defendants that the plaintiff was importing its rice through the land border was questionable, because the containers they seized were merely being transported on land, from Onne Sea Port to the Tinapa Free Trade Zone and Resort.
“The containers were, therefore, in transit between one seaport and another. And, being in transit cannot be interpreted as land border importation.”
The judge described as infantile the argument that the plaintiff, in importing rice, acted outside its operating licence which was for the plaintiff to trade in food and beverages in Tinapa Free Trade Zone.
Justice Ekwo noted that such an argument amounted to a futile attempt to distinguish between rice and food.
The judge frowned at the discovery that part of the seized consignment was stolen by officials of the Nigerian Customs, while the plaintiff’s warehouse was sealed by the 1st and 2nd defendants.
He said: “Another intriguing part of the defendants action, during the course of these proceedings, is the discovery that, when stocks were taken, upon the unsealing of the warehouse by the 1st and 2nd defendants, 19, 421 of 50 kg bags and 1,639 of 25 kg of the seized rice consignment have been pilfered by officers of the 1st and 2nd defendants.
“The 1st and 2nd defendants proffered no defence on this issue nor countered the evidence of the plaintiff.
“This, in my opinion, is a brazen act of treating the proceedings before the court with contempt apart from the reprehensible theft that the act of the 1st and 2nd defendants represents.”
The judge further held that the1st and 2nd defendants failed to supply evidence in support of their allegation that the plaintiff was involved in the smuggling of rice.
He added that smuggling being a criminal offence, the 1st and 2nd defendant ought to provide evidence of prosecution or conviction of the plaintiff for the alleged offence of smuggling.
Justice Ekwo also frowned at the 1st and 2nd defendants’ failure to obey two different interlocutory orders of the court, which were intended to mitigate the loss which the plaintiff eventually suffered as a result of the theft of part of the seized goods and contamination from prolonged sealing of the warehouse.
The judge granted all the reliefs by the plaintiff and awarded specific and general in damages in favour of the plaintiff, and against the 1st and 2nd defendants, in the amount estimated at N3,805,638,950 and $4,796,550.
Justice Ekwo also granted an order of perpetual injunction restraining the defendants from further unlawfully interfering with the lawful business transactions of the plaintiff within the Tinapa Free Trade Zone.
He also said the judgement shall attract interest “at the prevailing Monetary Policy Rate of the Central Bank from the date of judgment until judgment sum is fully paid.”
Although the National Security Adviser (NSA) was sued as the 3rd defendant, Justice Ekwo said the plaintiff made out no case against the 3rd defendant.