Cotecna V Churchgate (2010)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is a further appeal against the judgment of the Court of Appeal, Lagos Division, in Appeal No. CA/L/79/2001, delivered on the 17th of March, 2004 dismissing the appeal of the Appellant herein.

At the Federal High Court, Lagos in suit No. FHC/L/CS/63/98 the 1st Respondent as Plaintiff had in a Writ of Summons issued out on 26th January, 1998 claimed against the appellant and 2nd Respondent the following reliefs:

1.”A declaration that the customs duties and charges payable in respect of the 160,000 bags of Thai parboiled rice imported into Nigeria by the 1st Respondent via the vessel M. V. “ILYA ILALIK” and covered by Bills of Lading Nos.LH-1, LH-2, LH-3, LH-4, LH-5 and LH-6 is N65,026,721.70.

2. An order directing the 2nd Respondent to credit the plaintiff with the sum of N9,840,012.54 already paid in excess of the amount due and payable and set off the said amount from the customs duties and charges payable on other consignments of rice to be imported into Nigeria by the Plaintiff henceforth until full credit shall be given accordingly.
3. Such further other orders as may meet the justice of the case.”

On 6th March, 1998, the Plaintiff followed up with an application, praying the trial court to dispense with the filing of pleadings and determine the matter on issues formulated On 29th June, 1998, the plaintiff filed an Amended Particulars of claim and sought on alternative relief in paragraph (b); claiming N9,840,012 54 being damages for negligence in the preparation of Import Duty Report.

While the application to decide the matter on issues formulated by the Plaintiff and the application for leave to amend and to deem Particulars Of Claim as properly filed was still pending at the trial court, the Appellant filed a motion on 19th March, 1998. It prayed to Court to have its name struck out on the grounds that it, at all times material to the subject matter of the suit, was an agent of the Federal Government of Nigeria, a disclosed principal, and that the trial court lacked jurisdiction to entertain the suit against the Appellant. 1st Respondent filed a counter affidavit in reaction to this application and the Appellant also filed a reply to the counter affidavit including the exhibits annexed thereto.

On 7th May, 1998 and 19th October 1998, Learned Chief Judge M. B. Belgore, of blessed memory, took arguments of counsel on both sides on the said application and in his considered Ruling dismissed the application. He reasoned inter alia, thus:

“The sub-sections (sic) of the various enactments creating and affecting the Pre-shipment Inspection Body indirectly by process of elimination showed the Pre-shipment Inspection Body cannot be agent or agency of the Federal Government. This was clearly shown in the contractual agreement dated 19th April, 1991 between the relevant Inspection Body that is Cotecna International Limited in this case and the Federal Government in Exhibit. FA 1.., that the relationships of the two parties are one of an independent contractor to an employer…..”

Being dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal to the Court of Appeal. At the Court of Appeal both the Appellant and the 1st Respondent filed and exchanged Briefs of Argument. The parties adopted their respective Briefs of Argument on 12th February, 2004. The Records show at page 163 that the Appeal was reserved for Judgment on 26th April, 2004.

On 17th March, 2004, the 1st Respondent’s Counsel was incidentally at the Court of Appeal for another matter and discovered the Appeal on the Weekly Cause List for Judgment. The Judgment was eventually delivered that day in the presence of the 1st Respondent’s counsel and the Appellant’s Appeal was dismissed. The Appellant was again dissatisfied with the said Judgment of the Court of Appeal, hence it further appealed to this Court. The Notice of Appeal contained six grounds of Appeal.

The issues which the Appellant formulated for determination in this appeal are as follows:

1. “Whether the Court of Appeal was wrong when it decided that the provisions of section 3(1) and (2) of the Pre-shipment Inspection of Imports Act 1996 are applicable to the 1st Respondent’s claim at the Federal High Court and decided that the provisions of section 136(1) of the Customs and Excise Management Act, did not apply to the claims (This issue is covered by Grounds of Appeal Nos. 7, 2, and 3).
2. Whether the Court of Appeal was wrong when it decided that the Appellant was not at all times material to the subject matter of the 1st Respondent’s claim in the Federal High Court, a disclosed agent of the Federal Government of Nigeria, a disclosed principal (This issue is covered by grounds of Appeal Nos 4 and 5).
3. Whether the Judgment delivered by the Court of Appeal is valid having been wrongly delivered on 17th March, 2004 in the presence of the 1st Respondent without notice to the Appellant.”

The 1st Respondent on its, part has identified also three issues for determination as follow:

i) “Whether at all times material to this action the appellant was an agent of the Federal Government of Nigeria in such a way that it could not be sued or made liable for its acts under pre-shipment inspection of imports act no, 11, 1996.

ii) Whether the Appellant can rely on and take advantage of section 136(1) of Customs and Excise Management Act Cap.84 Laws of the Federation 1990 when it is created under a subsequent statute with no explicit provisions for statutory limitation.

iii) Whether the delivery of judgment by the court of appeal on 17th march 2004, earlier than 26th April 2004 which was the day reserved for judgment on the records resulted in miscarriage of justice.”

The 2nd Respondent although served with all the processes in this Appeal, did not file any brief of argument. It did not also appear at the hearing of the appeal.

On the 20th September 2010, this appeal came up for hearing. On behalf of the Appellant Learned Counsel,, Uzoma Azikiwe Esq. adopted and relied on the Appellant’s brief of argument dated 29th November 2006 but filed on the 23rd November, 2006 without further amplification on the issues formulated in the brief which he considered comprehensive, adopted same and urged the Court to allow the Appeal.

Mr. J. A. BADEJO, Senior Counsel for the 1st Respondent adopted the 1st Respondent’s brief of argument dated 12th May, 2010 filed that day but deemed filed on 20th September,2010. He amplified on the 1st and 2nd issues. He submitted that customs and Excise Management Act is a creation of colonial Administration which empowered the officers of customs to assess and determine the correct duty payable. Customs and Excise Management Act which was intended to protect the customs officers stands distinct from subsequent legislation on customs matter. It is accordingly urged that the appeal be dismissed. I have carefully gone through the issues formulated by the respective learned counsel for the parties, I am of the respectful view that issue No. 1 of the Appellant’s brief and issue 2, of the Respondents brief are similar. I shall therefore consider them serially. Issue No.3 identified by the Appellant is similar to issue No. 3 identified by the 1st Respondent in its brief of argument. I shall also treat them together.

ISSUE No. 1: The learned Counsel has submitted that the learned chief judge of the Federal High court and the court of Appeal erred in law when the former expressly applied and the latter assumed applicable, the provisions of section 3(1) and (2) of the Pre-shipment of Imports Act. 1996. That the relevant facts of this case show that the provisions of section 136(1) Customs and Excise Management Act are applicable to the claim of the 1st Respondent in the Federal High Court, which claim, is by virtue of that section is statute – barred, and the Federal High Court no longer has the jurisdiction to adjudicate on the claim: Reliance was placed on the cases of Chief ITA AND 4 others v. – CHIEF ARCHIBONG AND OTHERS (1995) 4 NWLR (pt.387) 83 at 87 and EGBE V. ADEFARASIN (1987)1 NWLR (pt.47) page 1.

Examining more critically the provisions of the Pre-shipment Inspection of Imports Acts vis-a-vis the provisions of the Customs and Excise Management Act, especially section 136(1), learned counsel has submitted that both provisions are complimentary and can co-exist and should be given the following interpretation that:

(i) The duty of the inspecting agents (the appellant) is to assist the Federal Government in cross-checking and confirming the information about the quality, quantity and value of the goods to be imported as provided by overseas suppliers/sellers, in order to prevent the Government from being defrauded of revenue including custom duties.

(ii) By the provision of Section 37 of the Customs and Excise Management Act the imporler is under obligation to pay the proper officer, the customs duty assessed at the appropriate rate in force at the delivery of Bill of Entry. That there is no provision under the Pre-shipment of Import Act that empowers the Inspecting agents to collect customs duties as to justify the conclusion that the functions of Customs officers have been completely taken over.

(iii) Where the importer or exporter or proprietor of the goods disputes the custom duty assessed on the goods, the provisions of section 136(1) of the Customs and Excise Management Act would become applicable.

It is accordingly urged that this Court should hold that the provisions of section 3(1) and (2) of the Pre-shipment Inspection of Imports Act 1995 are not applicable to the 1st Respondent’s claim at the Federal High Court for the purpose of determining whether or not the claim is statute barred; but that the provisions of S.136(1) of Custom and Excise Act are applicable to the 1st Respondents claim and that the suit is statute barred, and the Federal High court had ipso facto, been deprived of the jurisdiction to adjudicate on the subject matter of the suit.

Replying the 1st Respondent’s learned counsel went into historical perspective of the customs and Excise Management Act, which he said came into force on 1st April, 1959. He contended that by section 4(1) of the said Act, the Board of customs and Excise was saddled with the sole responsibility of assessing, computing and calculating import duties. That these onerous responsibilities have come a long way from what they were in 1959 because bodies or companies like the instant Appellant have come into limelight. Firstly there was the Pre-shipment Inspection of Imports Act, of 1979 and that of 1996, (Decree II of 1996) which placed the burden of assessing the quality, quantity and comparative price of goods and also computing, assessing and calculating import duties on the Appellant. It is contented that these responsibilities shifted to the Inspecting Agents, such as the Appellant and the duties of the Board of Customs was whittled down and stratified. It is submitted that the Inspecting Agent, by the provision of section 2(1) of the said Pre-shipment Inspection of Imports Act, was charged with the responsibility of Inspecting goods Imported and issuing clean Report of Findings, Non Negotiable Report of Findings and Import Duty Report. Learned Senior Counsel, however submitted that contrary to the contention of the Appellant’s counsel that both section 136 (1)Customs and Excise Management Act and Section 3(1) and (2) of Pre-shipment Act are meant to co-exist harmoniously, the Lower court rightly held that they do not so co-exist harmoniously for the reason that the legislators did not intend and it cannot be possible for the legislators to promulgate an enactment in a manner that it will repeal a future legislation on the same matter.

Right on the onset I have set out background facts that gave rise to this appeal under consideration. The Appellant did not wait for the pleadings to be ordered at the trial court before filing its motion on Notice dated the 19th March, 1998 praying for an order striking out its name from the suit on the two main grounds namely: Firstly, that at all times material to the subject matter of this suit, the Appellant was to the knowledge of the 1st Respondent (plaintiff), the agent of the Federal Government of Nigeria a disclosed principal and Secondly, that the court lacks jurisdiction to entertain the said suit as constituted against the Appellant. Hence this created a quagmire over which the Appellant now quibbles. It is left to be fathomed what exactly the facts and basis of the 1st Respondent’s cause of action against the Appellant was or rather is. Curious enough but perhaps this explains why the Appellant had to place reliance, copiously, on the affidavit in support of the Respondent’s application dated 6th March, 1998 at pages 8 to 35 of the Records. The Appellant’s application brought prematurely before the trial court stalled the filling of pleadings and hearing of the application for leave to amend the particulars of claim. lf the pleadings had been settled, the Appellant would have had the opportunity to have a clearer picture of the plaintiff’s case and the basis of its claim against the Appellant. The Appellant in response would have filed a defence to the Plaintiff’s claim. In doing this, the Appellant may admit some of the facts alleged in the statement of claim’ if it considers them incontrovertible, or it may deny those it finds unacceptable. Further, it may admit some allegations but go on to plead new facts from the one intended by the 1st Respondent, it could as well then raise an objection in law urging the trial court to strike out the Plaintiff/1st Respondent’s action on the grounds of that objection.

If this was done, all the time and efforts dissipated in 12 years on this appeal would have been saved. It has become obvious that this premature and hasty step embarked upon by the Appellant has weakened its position taken in the 1st and 2nd issues formulated for determination.

I have said for the umpteenth time, that the plaintiff’s (1st Respondent) claim against the Appellant was that in the performance of its duties under the Pre-shipment Inspection of Imports Decree No.11 of 1996, the Appellant as alleged by the 1st Respondent wrongfully and negligently inflated the customs duties payable. It is clear from page 68 of the Records apart from claiming on declaration on the actual customs duty payable, the Plaintiff/1st Respondent claims in the “Particulars of Claim” not only a refund of the excess duty paid to the 2nd Respondent but also in the alternative, the sum of “N9,840,012.52 being damages against the 1st Appellant for negligence in the preparation of Import Duty Report Nos. CN 1213000023/001 to CN 1213000023/06 covering and relating to Bills of Lading Nos. LH-1 to LH-6. As I have observed the application for leave to amend the particulars of claims and to deem same it property filed could not be entertained in view of the Appellant’s application. If all the pleadings expressed in the claims of the plaintiff had been allowed to be placed before the trial court, it would have been then made clear that the claims of the plaintiff was not only for a refund of customs duties paid but the damages against the Appellant for negligence in the performance of its contractual duties under the agreement.

The three issues formulated for determination by parties shall be taken serially. On the first issue, the appellant in its brief admits that it was brought into being by series of statutes’ namely Pre-shipment Inspection of Imports Acts, particularly section 4(1) of the Pre-shipment Inspection of Imports Act No.11, 1996 Pursuant to this provision’ the Appellant was appointed by the Federal Government as shown in Exhibits”JA1″and “JA2”,which documents merely referto the Appellant as “the company” which by page 3 of clause 6 was mandated to undertake verification of Tariff codes and rates designated by the importers or their agents on mandatory import duty assessment forms submitted by Banks to ensure that the correct import duty is assessed and paid to the 2nd Respondent. Clause 2 states that the company is required to exercise an independent professional mandate (underlining mine for emphasis).

The cumulative effect these provisions and clauses 2 and 6 of the Agreements, (Exhibits JA1 and JA2) have is that the Appellant is an independent contractor of the Federal Government. In its brief of argument at paragraph 63, the Appellant stated thus:

“It was never the case of the Appellant in the Federal High Court or the Court of Appeal that it was an “agency” or “department”, of the Federal Government of Nigeria…”

Indeed, the appellant is neither an “agency” nor a department of the Federal Government. This is the concurrent findings of the two courts below. The Appellant was engaged to inspect imported goods, verify their quality, quantity and price, issue a clean Report Of Findings. It is to compute and assess customs duties payable in line with the guidelines given by the Federal Government of Nigeria.

In performing these duties the Appellant acts as an independent entity and its staff are not under any control by the Federal Government. They are not paid salaries from the special or any consolidated fund. To buttress this fact, Exhibit “JA1” at page 47 of the records, the Pre-shipment Inspection Agreement’ was made on the 19th day of April, 1993 between the Honourable Secretary of Finance for and “on behalf of the Federal Military Government of the Federal Repubic of Nigeria …… of the one part and COTECNA INTERNATIONAL LIMITED (the Appellant) of the other part”. It is evident from clause vii of Exhibit “JA1” that the Appellant as an independent entity, performs its duties and earns a fee of 0.98% of the F.O.B. value of the imported goods inspected and assessed by it. I do not see the relevance of the case of UNIVERSITY OF ABUJA v. PROF K. OLOGE (1996) 4 NWLR (pt.445) cited and relied on by the Appellant in its brief, since the appellant has conceded that it is neither an “agency” nor “department” of the Federal Government. However, the cases of FEDERAL MORTGAGE BANK OF NIGERIA v. OLLOH (2002)9 NWLR (pt.773) and TRENDEX TRADING CORPORATION LTD v. CENTRAL BANK OF NIGERIA (1977) 1 .A.E.R.881 applied by the Court below are relevant. In the first case UWAIFO, J.S.C., at page 487 has this to say:

“There is nothing whatever in the Federal Mortgage Bank Plc to suggest that the appellant is an Agency of the Federal Government. It is no doubt that the said Bank was created by an Act of the National Assembly and therefore at best considered the property of the Federal Government with the sole aim of providing financial assistance in the form of long-term facilities to Nigerian individuals desiring to acquire houses of their own and the granting of long-term credit facilities to mortgate institutions with a view to enabling those institutions to grant comparable facilities to Nigeria individuals as per the preamble of the Act. The Bank is no more than a business establishment given functions to perform, but neither of those functions nor the Bank itself has any connection with the affairs or the running of the Federal Government”

These two authorities were relied on by the Court of Appeal to buttress the point that the fact that the Appellant is referred to and called an “Inspection Agent” does not make it an agent of the Federal Government referred to as “Principal” These terms used in Exhibit “JA1” ought to be given their ordinary meaning or day to day usage so as to ascertain manifest intention of the parties.

It is not in all situations that an agent will not be liable for the acts of a principal. An agent who has exceeded the limit or bounds of its authority as is alleged in this case, such agent will be liable. See Order IV Rule 4 of the Federal High Court (Civil Procedural) Rules 1976 which applies to this case and order 9 Rules 5 and 8 of the new Federal High Court (Civil Procedure) Rules, 2009 which has liberalized the joinder of parties, Rules 5 and 8 of Order 9 provide:

“5 Any person may be joined as defendant against whom the right to any relief is alleged to exist whether jointly, severally, or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable according to their respective liabilities, without any amendment.”

“8. Where a plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned or as may be prescribed by any special order join two or more defendants with intent that the questions as to which, if any of the defendants is liable and to what extent may be determined as between all parties.”

I have viewed this matter from a very broad perspective, as urged by the learned counsel for the 1st Respondent. It is crystal clear for all intent and purposes that the overall responsibility of undertaking the verification of Customs Tariff Codes and Rates designated by the importers of goods on mandatory import duty assessment forms submitted by the Banks/Authorized dealers to ensure that the correct import duty is assessed and paid to the 2nd Respondent, is on the Appellant. If those onerous responsibilities devolve on the Appellant entirely, then the resolution of any dispute arising therefrom would make the Appellant necessary and proper party in an action such as this. See further; GREEN V. GREEN (19877) 3 NWLR (Pt.61) 480; AYORINDE V. ONI (2000) 3 NWLR (PT.649) 348, and SOCIETE GENERAL de SURVEILLANCE S. A. VS. RASTICO NIGERIA LIMITED (1992) 6 NLWR (PT.245) 93.

It is in the light of my foregoing consideration of the Appellant issue 1(ONE) and the 1st Respondent issue 2 (Two) that I answer them in the negative but in favour of the 1st Respondent.

The Appellant’s issue 2(Two) is formulated on similar terms with 1st Respondent, issue 1(one). On this issue, the Appellant has submitted in its brief that the claim of the 1st respondent is wholly in respect of a dispute as to the amount of custom duty payable on 160,000 bags of Thai parboiled Rice the 1st Respondent imported into Nigeria. Therefore that the 1st Respondent’s claim at the Federal High Court is simply that, it disputes the duties assessed on its imported rice. It is submitted that there is no feature or element of the claim of the 1st Respondent in that Court that relates to or requires the application of the provisions of the Pre-shipment Inspection of Imports Acts of 1979 -1996. It was contended that it was the learned trial Chief Judge of the Federal High Court, who in the course of determining whether or not the claim of the 1st Respondent was caught by the limitation provision of Section 136(1) of the Customs and Excise Management Act who introduced the provisions of Pre-shipment Inspection of Import Act, where an assessment is disputed. That this is not the subject matter of Section 3(1) and (2) of the Pre-shipment Inspection Import Act 1996 which provisions merely prescribes the method of payment of fees and duties assessed. That those provisions do not prescribe for determination of disputes as to duties payable. It is further submitted that the “applicable guidelines” mentioned in sub section 2 of section 3 refer to guidelines for payment and not guidelines for determination of disputes to duties payable. It is argued that the lawmakers have not demonstrated that sections 136(1) of Customs and Excise Management Act and SS.3 (1) and (2) of the Pre-shipment Inspection Import Act, 1996 are on the same subject matter and cannot therefore exist simultaneously. Therefore the Federal High Court and the Court of Appeal had no legal basis for deciding that subsections (1) and (2) of Section 3 of the Pre-shipment Inspection Import Act are relevant to the determination of whether the plaintiff/Respondent’s action is statute barred by virtue of section 136(1) of Customs and Excise Management Act. It is finally urged that this Court should hold that the provisions of Section 3(1) and (2) of the Pre-shipment Inspection Import Act 1996 are not applicable to the 1st Respondents claim at the Federal High Court for the purposes of determining whether or not the claim is statute barred, it is further urged that the provisions of S.136 (1) of Customs and Excise Management Act are applicable to the Respondent’s claim and that the said claim is statute-barred.

The 1st Respondent for its part argues that its claim flows from clean Report of Findings and Import Duty Report issued by the Appellant which documents are never referred to in Customs and Exercise Management Act. It is submitted that neither the 1979 nor the 1996 Pre-shipment Inspection of Import Acts incorporate or annex the application of S.136 (1)9 Customs and Excise Management Act. It is contented that the two Acts are independent of each other and if the legislature had wanted the incorporation of the limitation provision, it would have so stated expressly, and that in the absence of such clear intention to Incorporate both Customs and Excise Management Act and the Pre-shipment of Inspection Act, the proper course of justice is to interprete each independent statute on its own tenor. Reliance was placed on the decision in OSITA NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY and 4 OTHERS (1990) 2 NWLR (pt.135) page 688 at 724. Continuing the argument the 1st Respondent submitted that section 136(1) of Customs and Excise Management Act and all its references to “proper Officer” “demand” etc apply strictly to customs officer and not to Pre-shipment Agents such as the Appellant’ citing in reliance EKUNDAYO v UNIVERSITY OF IBADAN (2000) 12 NWLR (pt.681) 220, ONYEANUSI V MISCELLANEOUS OFFENCES TRIBUNAL EASTERN ZONE, OWERRI (1995) 8 NWLR (pt.415) 628 at 638 and ACB PLC v. LOSADA (NIG) LTD AND ANOTHER (1995) 7 NWLR (pt.405) 26. It was finally submitted on this issue and from all the foregoing argument that the limitation period contained in Customs and Excise Management Act does not apply to the Pre-shipment Inspection of Imports Act and cannot be so read into it.

My careful study of the provisions of section 3(1) and (2) of the Pre-shipment Inspection of Import Act. No.11 of 1996 has shown that there is nothing which restricts accessibility to Court by way of Imposition of a limitation period within which an action could be brought to Court. The Fundamental rule of interpretation of a statute is that every statute is to be expounded to its manifest and expressed intention. Where the words of a statute are clearly expressed the court is duty bound to give the words their literal meaning. Section 136(1) of the Customs and Excise Management Act, cap. 45, 2004 provides:

“If any dispute arises as to whether or what duty of customs or excise is payable on any goods the Importer, exporter or proprietor of the goods shall pay the sum demanded by the proper officer the duty payable in respect of the goods, and thereupon the sum so paid shall be deemed to be the proper duty payable in respect of the goods, unless the contrary is determined by the Court upon application by the importer, exporter or proprietor which application shall be made within six months after the date of payment.”

The provision of Customs and Excise Management Act (supra) came into force on the 1st of April, 1959

It is clear, it makes room for limitation of time within which an “importer”, “exporter” or “proprietor” can bring an action in Court. Section 3(1) and (2) of the Pre-shipment” Inspection Act Decree No.11 of 1996 Provides:

“3.(1) All importers shall pay into a special account operated for that purpose in the Central Bank, fees calculated as percent advalorem of the FOB, value of all imports assessed by the inspecting agents or such per centum of the FOB value of goods imported as may be prescribed by the Federal Government of Nigeria from time to time based on the exchange rate prevailing the previous week of inspection as determined by the Central Bank.

3.(2) All duties assessed as payable by the importers in respect of goods inspected by the inspecting agent shall be payable by the importers in accordance with procedures contained in the applicable guidelines as may be used by the Federal Government of Nigeria as required and shall be based on the average autonomous rate of exchange of the previous week as determined by the Central Bank.”

The provisions of Customs and Excise Management Act reproduced above, as I have noted, places limitation of six months within which to bring an action after the payment of customs duty or excise. The Pre-shipment law which came into force in 1996, meant to regulate the payment of dutiable goods, does not contain such limitation clause. The Constitution guarantees citizens right to vent their grievances in Court. Any law which seeks to deprive a citizen of any of his constitutional right must be construed strictly by the Courts. I agree with His Lordship, Aderemi JCA (as he then was) in this matter when he said at page 173 of the Records thus:

“Under normal circumstances, it may be rightly presumed that the intention of the law makers in promulgating a new law where one on the same subject matter, is still existing is to correct any mischief or societal ill which was not taken care of my (sic) by the already existing one….A Court of law which is also of Justice must give both legislations a truly harmonious interpretation, see AKUNEZIRI v. OKENWA & ORS (2000) 15 NWLR (Pt.691) 526. I have no doubt in my mind that Section 3(1) and (2) of Pre-shipment Inspection Act of 1996 cannot co-exist harmoniously.”

In dealing with this issue, the learned trial Chief Judge had expressed his view at page 79 of the records that section 136(1) of Customs and Excise Management Act has been eroded by the various enactments relating to Pre -shipment Inspection of imported dutiable goods. I agree with him that the duties and traditional functions of the Customs Officers have been completely taken over and any protection given to them cannot be given to any other body in the absence of specific Provision of the law.

Chargeable customs duty on imported goods and excise on manufactured goods are matters of tax. Limitation of liability of disputed tax and whom to challenge on such liability must be expressed in law explicitly and with certainty and not by mere inference or conjecture.

If the legislature had intended to limit the period within which an aggrieved importer could institute action against the pre-shipment “Agents”, it would have done so expressly. It has been settled that the Appellant is an independent contractor. It is not under the day-today control of the Nigerian Customs Service. It would appear S.136(1) Customs and Excise Management Act gave undue protection to the Officers of Customs and Excise” in the discharge of their statutory duty of collecting customs duties. This protection cannot by any stretch of imagination be extended to the Appellant, without a clear statutory provision. The 1st Respondent’s, claim is against the Appellant and 2nd Respondent. This is provided for in section 9(2) of the Pre-shipment Act, 1996; which allows importer recourse to court and seek redress whenever there is a dispute in assessment of customs duties without any period or time of limitation. The section provides:

“Every proceeding under this Act shall subject to the applicable procedure, to be commenced in the Federal High Court and reference in this Act to Courts” shall be construed accordingly”

1st Respondent’s claim flows and emanates from the Clean Report of Findings and Import Duty Reports prepared and endorsed by the Appellants. These documents are nowhere mentioned in the Customs and Excise Management Act. It would appear at page 68 of the Records that the 1st Respondent has filed an Amended Particulars Of Claim, claiming damages in the alternative, that the Appellant was negligent in the preparation of Import Duty Reports. Neither the 1979 nor, 1996 Pre-shipment Inspection of Import Act incorporates provision of its application to Customs and Excise Management Act. Looking at their historical perspective the statutes are independent of each other. As stated earlier if the legislator intended to incorporate the limitation period in section 136 (1) of Customs and Excise Management Act, such intention would have been expressly stated. In the absence of such intention to incorporate Customs and Excise Management Act into the Pre-shipment Inspection of Imports Act, the proper interpretation is that each statute is independent on its own tenor. See OSITA NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & 4 ORS(supra).

From the foregoing, I hold that the limitation period of action as contained in Customs ad Excise Management Act does not and cannot apply to the Pre-shipment Inspection of Import Act and cannot be read into it. I therefore, resolve this issue in favour of the 1st Respondent.

The third issue raised by the Appellant for determination is from ground 6 of the Appellant’s Notice of Appeal. Its complaint is that the delivery of judgment earlier than the scheduled date without notice to the Appellant occasioned a miscarriage of justice. The Court of Appeal heard the substantive appeal on the 12th February, 2004 and adjourned to 26th April, 2004 for judgment. Relying on order 5 Rule 9 (1) of the Court of Appeal Rules 2002, learned counsel for the Appellant has submitted that the procedure in delivering the judgment in the presence of one of the parties on a day other than the scheduled date, without notice to the Appellant, rendered the judgment a nullity for noncompliance with the provisions of the said order (supra) and violation of S.136 (1) of the Constitution of the Federal Republic of Nigeria 1999, which guarantees the Appellant the right to “fair hearing.” Reliance was placed on the following authorities: JEREMIAH AKOH & 2 ors v. AMEH ABUH (1988) 3 NWLR (pt. 85) 696 at 712 and NIGERIA -ARAB BANK LIMITED v. BARI ENGINEERING (NIG.) LTD (1995) 8 NWLR (pt.413) 257 of 290. It is submitted that the Appellant need not to show that there was a miscarriage of justice.

On his part the 1st Respondent, in its brief, has submitted that the delivery of judgment by the Court of Appeal earlier than the date scheduled on the records has not occasioned any injustice to the Appellant and therefore, the judgment is not a nullity, in the circumstance.

Order 5 rule 1 of the Court of Appeal Rules 2002 (then applicable) enjoins the delivery of the Judgment of the Court in the open court and for the Registrar to give notice of the date the Judgment will be delivered. The Court of Appeal rules did not prescribe the effect of non service of notice. However section 294 (1) of the 1999 constitution provides that a written judgment of every court established under the Constitution shall be delivered not later than ninety days after the conclusion of evidence and final address. By virtue of subsection 5 of section 294 of the Constitution this court is enjoined not to set aside the judgment of the trial court solely on the ground that it was delivered outside the ninety days period after final address unless the party complaining has suffered a miscarriage of justice. It would appear to me and I am of the view that the delivery of judgment earlier than scheduled date without notice to the Appellant will not nullify the judgment unless the Appellant can show that it has resulted in a miscarriage of justice. The Appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the Judgment was read. It is not shown that if the Appellant’s counsel had listened to the Judgment which was delivered in the open court, the decision could have been otherwise. The Appellant is not complaining that it was not heard when it ought to have been heard during the proceedings leading to Judgment see VERITAS INS. CO. LTD v. CITI TRUST INVESTMENT LTD (1993) 3 NWLR (Pt.281,) 349 at 370; OBODO v. OLOMU (1937) 3 NWLR (pt.59) 111 and ESEIGBE v. AGHOLOR & ANOR (1990) 7 NWLR (pt.161) 234.

I hold that since the earlier and timely delivery of judgment by the Court of Appeal has not occasioned any miscarriage of justice to the Appellant, in any way whatsoever, so as to nullify the said judgment, accordingly, I resolve this issue against the Appellant.

In the final analysis, I dismiss this appeal for lacking in merit and a sheer waste of time of the Courts. The matter is remitted to the trial Court to be determined on the merits. I award to the 1st Respondents costs assessed at N50,000.00 against the Appellant.

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SC.181/2004