Etim Edet V Board Of Customs And Excise (1965)
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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.
The learned Chief Magistrate notes in his judgment that the defendants passport was stamped with 26 February, 1962, as the last departure date, but he does not think that this was conclusive evidence that the defendant was travelling that day. The learned Chief Magistrate also wonders why the suit cases were returned to the defendant; they should have been kept as confirming evidence that he was travelling; and the prosecution ought to have brought the passengers list from the shipping company. Lower down, the learned Chief Magistrate says this:
‘Much as I do not want to believe the defendant that the said bag of garri – Exhibit A – was taken on board by the 2nd prosecution witness, I must however state here that I am really not satisfied that it was the defendant who caused or had Exhibit A taken on board the m.v. Capitan Segarra,’
In effect the bag of garri took wing from the gate and alighted among the mail bags in the hatch of the boat. We regret to say, but say it we must, that the decision of the learned Chief Magistrate on the facts was perverse. But in his opinion the prosecution had a duty to prove that the defendant was travelling that day, but failed to do so conclusively. The learned Chief Magistrate overlooks the evidence for the prosecution that the boat arrived in the morning and was leaving in the afternoon and that the defendant told the customs officers on board that he was travelling to Fernando Po; and that according to the evidence for the defence, the defendant went on board to meet his friend Amadi; that he did so not through the usual avenue of the customs; that he did so between 1 and 2 p.m. according to the evidence of his boy, although they arrived in Calabar at 10 a.m. and that he was arrested on board about 4.30 p.m. The boat left between 5 and 6 p.m. The only reasonable inference was that the defendant went on board in order to travel.
The learned Chief Magistrate goes on in his judgment to refer to section 157(2) of the Customs and Excise Management Act or Ordinance, as it was called), which provides that–
‘A court shall not, except with the consent of the person charged, proceed to hear any charge in respect of an offence under any provisions of the customs or excise laws unless the continuation of such proceedings is sanctioned by the Board.’
He observes that the defendant pleaded not guilty, but that there is nothing to show that the Board sanctioned the prosecution or that the defendant gave his consent; and he is of opinion that the charge is not proper before the court and is unlawfully prosecuted. In conclusion, he acquits the defendant. There is nothing in the closing address for either side about that point, and the learned Chief Magistrate should at least have invited argument on it before deciding that the prosecution was unlawful. He would have been referred to section 166 (1)(a) of the said Act and the signature below the charge, which is ‘I. G. Osunsan for Board of Customs and Excise.’
It is convenient to quote here the portions of section 166 which were canvassed in the High Court and later before us; they arc the following:-
‘166. (1) An averment in any process in proceedings under the customs or excise laws.
(a) that those proceedings were instituted by the order of the Board; or…
(g) that the offence was committed or that any act was done in a specified place in Nigeria, shall unless the contrary be proved be sufficient evidence of the matter in question.
(2) Where in any proceedings relating to customs or excise any question arises as to take place from which any goods have been brought or as to whether or not-
(e) any goods have been lawfully loaded into any ship, aircraft or vehicle or lawfully exported; or …
then, where those proceedings are brought by or against the Attorney General of the Federation, the Board or an officer, the burden of proof shall lie upon the other party to the proceedings.’
Mention is also made of section 168 (which throws the onus on the defendant to disprove intent etc.) in the Boards notice of appeal, in the additional grounds of appeal, but no question arises under that section.
There are two grounds of appeal in the appeal made by the Board to the High Court: the first refers to those passages in the Chief Magistrates decision which speak of the prosecutions failure to prove conclusively that the defendant was travelling to Fernando Po, and alleges that the Chief Magistrate misdirected himself in law because he failed to consider section 148 of the Evidence Act (which has no particular bearing on the case) or did not adequately consider section 166 (1)(g) and (2)(e) and section 168 of the Customs and Exercise Management Act of 1958 on where the burden of proof lies: and the second ground relates to the mistake on the illegality of the prosecution and refers to section 166 (1 )( a) of the Act.
The judgment of the High Court deals with the second ground and with the mistake in the charge of citing the wrong provision of the Exchange Control Act and one or two other kindred points, and decides that there was a lawful charge before the trial court brought with the authority of the Board of Customs and Excise.
In regard to the first ground of appeal, the learned judge gives the argument and states
‘He’ (namely counsel for the Board) ‘therefore further submitted, and I agreed’ (read agree) ‘with his submission, that the defen
Other Citation: (1965) LCN/1278(SC)