Etim Edet V Board Of Customs And Excise (1965)

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BAIRAMIAN, J.S.C.

The appellant, who will be referred to as the defendant, was tried for an Exchange Control offence before J. C. Phil-Ebosie, Esq., Chief Magistrate, Calabar,-who acquitted him; on appeal by the Board of Customs and Excise he was convicted in the High Court (Balonwu J.); and from that conviction he has appealed.

The charge against him reads as follows:

That you, Etim Okon on 26 February, 1962, at about 4.30 p.m, at Ivy Wharf, Calabar, in the Calabar Magisterial District, did conceal in a gari bag and put on board m. v. Capitan Segarra for exportation the sum of £1,000 (one thousand pounds) Nigeria Currency Notes, contrary to section 22 (1 )(d)(iii) of the Exchange Control Ordinance and punishable under section 58 (1)(b) of the Customs and Excise Management Ordinance No. 55 of 1958.’

The reference to section. 22 (1) (d)( iii) of the Exchange Control Ordinance is a mistake for section 22 (1)(a) but nothing hangs from that. The Fifth Schedule, Part III, to that Ordinance incorporates in reg. 1 the enactments relating to customs for purposes of prosecution and provides in reg. 3 that:-

‘If anything prohibited to be exported by any pro vision of the said Part IV is exported in contravention thereof, or is brought to a quay or other place, or water borne, for the purpose of being so exported, the exporter or his agent shall be liable to the same penalty as that to which a person is liable for an offence to which the Customs Ordinance applies.’

Section 22 is in PART IV of the Exchange Control Ordinance; it provides in subsection (1)(a) that:-

‘The exportation from Nigeria of:-

(a) Any notes of a class which are or have at any time been legal tender in the United Kingdom or any part of the United Kingdom or in any other territory … is hereby prohibited except with the permission of the Minister.’

And section 58(1)(b) of the Customs and Excise Management Ordinance. 1958, provides that:-

‘If any person-(a) …

(b) loads for exportation or as stores or brings to any place in Nigeria for the purpose of exporting or loading as stores any goods the exportation of which is contrary to any prohibition, or assists or is otherwise concerned in such loading or bringing, then, if he does so with intent to evade any such duty’ (which relates to (a)(i)) ‘or any prohibition, he shall be liable to a fine of six times the value of the goods or two hundred pounds, whichever is the greater, or to imprisonment for two years, or to both.’

Briefly put, the facts given in evidence for the prosecution are that a Spanish boat, m.v. Capitan Segarra, was to sail from Calabar to Fernando Po in the afternoon of 26th August, 1962; two customs officers, acting on information received, went on board and found in a hatch, between mail bags, a bag; one of them found the defendant in a cabin, resting on a bed and having beer beside him, and two suit cases under the bed; he said he was going to Fernando Po, and showed his passport and health certificate, and he agreed that he was the owner of the bag of gad found in the hatch; then he was taken out to the deck, where he was asked to open the bag, whereupon he began to beg; in it were notes of £ 1,000 in bundles of £50; he was told he had committed an offence against the Exchange Control Act and taken away.

The defendants evidence was that he went from Oron to Calabar to buy building materials. which, however. he was not able to find, and then he thought of going to the boat to see his friend Amadi, whom he expected to come from Fernando Po that day, to enquire after his family, who were there; to avoid being stopped at the gate, he got Ajiboye, one of the customs witnesses, to see him through and on board; he left his bag of gari at the entrance of Ivy Wharf with his boy for safety. His boy gave evidence that Ajiboye came to the gate with a carrier, saying that the defendant wanted the bag to be given to him, and took it away.