Board Of Customs & Excise V Kalu Kalu (1965) LLJR-SC
Board Of Customs & Excise V Kalu Kalu (1965)
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BRETT JSC
In other proceedings, which will be referred to in this judgment as the former proceedings, the respondent was convicted before the Chief Magistrate, Port Harcourt, of causing to be delivered a bill of entry which was untrue in a material particular, contrary to section 142 of the Customs and Excise Management Act, 1958. The bill of entry stated that a consignment of 212 bales contained household rummage, and the falsity concerned 20 of the bales, which were found to contain new men’s shirts. The Chief Magistrate imposed a fine of £300, with the alternative of two years’ imprisonment, and ordered the 20 bales of shirts to be forfeited. The Board of Customs and Excise appealed to the High Court against the’ omission to order the forfeiture of the remaining 192 bales, and the High Court allowed the appeal, but on a further appeal to this Court the order of the High Court was set aside and the order of the Chief Magistrate was restored, on the ground that in criminal proceedings the legislation then in force in Eastern Nigeria gave the prosecution no right of appeal on a matter of sentence only. Whether separate proceedings should have been taken for the forfeiture of the goods, or whether it could be ordered at the close of a prosecution for an offence under the customs laws was not argued on that appeal, and the judgment of this court expressly left the question open.
Even before the judgment of this court in the former proceedings had been delivered, the Board of Customs and Excise had instituted the present proceedings in the Port Harcourt Judicial Division of the High Court, claiming the forfeiture of the 212 bales in accordance with the Fourth Schedule to the Customs and Excise Management Act, 1958. The trial judge found that the Board had established the necessary facts to entitle it to an order of condemnation, and that finding is not contested, but he accepted the submission made on behalf of the respondent that the matter was res judicata by virtue of the order made by the magistrate in the former proceedings, and as a result he dismissed the suit. His judgment was delivered on the 21st January, 1964, at which date the only subsisting judgment in which the point was mentioned appears to have been the judgment of this court in the former proceedings, and, as we have already said, that judgment left the question open. Since that date, however, this court has had occasion to rule on the question. In the course of its judgment in Edet v. Board of Customs and Excise 1965 N.M.L.R. 188, the Court said:-
“It remains to add that proceedings for forfeiture must be taken separately as civil proceedings in accordance with the Fourth Schedule to the Customs and Excise Management Act”,
and the court went onto set aside an order for forfeiture which had been made in the course of criminal proceedings, leaving it to the Board to bring civil proceedings if so advised.
Mr. Ogba invited the court to “modify” the decision in Edet’s case, but put forward no grounds on which the court could properly do so. There is nothing in his submission that because the only sections of the Customs and Excise Management Act, 1958, that are mentioned in a marginal note at the head of the Fourth Schedule to the Act are sections 145, 155 and 161 the Schedule only applies where the other proceedings can be related to one of those sections, and the submission cannot be reconciled with section 148(3), which reads:-
“The provisions of the Fourth Schedule shall have effect for the purposes of forfeiture, and all proceedings for the condemnation of anything as being forfeited, under the customs or excise laws.” The consequence of the judgment in Edet’s case is that in the former proceedings against the present respondent the Chief Magistrate had no jurisdiction to order the forfeiture of the goods or any of them and that his order condemning 20 bales was invalid and cannot constitute res judicata in the present proceedings.
The appeal of the Board is allowed, the judgment of the High Court is set aside, and judgment is entered for the Board in accordance with the terms of its claim. The Board must have costs in the High Court assessed at 30 guineas, less the costs of adjournment awarded to the respondent in that court; and for the proceedings in this Court the Board is awarded costs assessed at 60 guineas.
Other Citation: (1965) LCN/1197(SC)