Nader V Board Of Customs & Excise (1965)
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The appellant was prosecuted on two counts laid under section 145(a) of the Customs and Excise Management Act, 1958; he was acquitted by the Chief Magistrate, E. Allswell Uranta, Esq.; the prosecutor appealed to the High Court, where Betuel, J. ordered a retrial; and from this decision the appellant has appealed to the Supreme Court.
The 2nd count relates to 37 quart bottles White Horse whisky value £95- 1 1 s-8d being goods chargeable with customs duty of £6415 s- 0d; otherwise it is similar to the 1st count, which reads as follows:
‘That you Romanous Paul Nader on the 30th day of September, 1962, at 31 Aggrey Road, Port Harcourt, in the Port Harcourt Magisterial District, knowingly and with intent to defraud the Federal Government of the customs duty payable thereon acquired possession of 58 quart bottles (Jordons Dry Gin, 41 quart bottles Martell Brandy, 8 quart bottles Anis Recard, Iquart bottle Jules Brandy value £263-1 8 s-8d being goods chargeable with customs duty of £178-4s-0d which has not been paid and you thereby committed an offence contrary to section 145(a) of the Customs and Excise Management Act, No. 55 of 1958.”
The prosecution called these witnesses – (1) Clinton Sagay, a collector of customs stationed at Port Harcourt at the time (2) Matthew Irnonah, also of the Customs, who prepared a certificate of value; (3) John Furby of the Kingsway Stores, Port Harcourt; (4) Indru Bh. Mansukhani of J. T. Chanrai Co., P.H.; (5) Bancy Akpanika, another officer of the Customs; (6) Remember Apresai, Assistant Storekeeper, G.B.O. Ltd., P.H.; (7) Sub-Inspector Onyekuba.
The appellant gave sworn evidence.
The Chief Magistrate states in his judgment that some officers visited the appellants shop on 30 September, 1962 and searched his store and took possession of the goods in the counts; they were not satisfied with his invoices and documents that he had bought them locally, partly because no documents were produced to show that duty had been paid on the goods and partly because, as Sagay said in evidence, the Martell bottles had at the bottom something in a language he did not understand, and the Gordon bottles had at the top left hand corner ’47° Guy Lussac’. Sagay produced an empty Martell brandy bottle and another empty Gordons gin bottle, to show labels of bottles imported through normal channels; but he conceded that not being prohibited goods, the brandy and the gin could be imported, the inscriptions notwithstanding. The invoices showed that the appellant had bought gin and brandy and whisky from John Holts, P.H., between January and September, 1962, some brandy from C.F.A.O., P.H. in February and March, some Ricard brandy from. G.B.O., P.H. in. April, 1962 and some Jules brandy from Asornugha in August, 1961.
The judgment notes that the appellant bought, according to the invoices, all his Gordons gin and some of his Martell brandy from John Holts but no witness from this firm. was called; also that no witness was called from C.F.A.O., from whom the appellant bought most of his Martell. The Kingsway manager said he had never had occasion to observe what was written at the bottom of Martell labels; Apresai of G.B.O. s said he had never bothered to read the inscriptions on Martell or Gordon bottles. Sub-Inspector Onyekuba said he did not find bottles like the samples in the shops he visited. Mansukhani of Chamais said they did not stock any Martell with French at the bottom of the label, or any Gordons with 47° Guy Lussac. In cross-examination he said that he was in charge of shipping and the office since 1961, the cases in which bottles came did not bear inscriptions in French or in English; he observed some inscriptions on bottles and others not; he did not sell and did not handle bottles when a case was brought into the shop. The learned Chief Magistrate did not consider his evidence as relevant or reliable.
The judgment notes that the prosecution offered no evidence on the Ricard, on the Jules brandy, or on White Horse whisky; as to the brandy and gin it observes that since it could be imported and sold in the ordinary way, the fact that the Sub-Inspector could not find bottles in the shops he visited like his samples was not conclusive: there was no evidence that it was not sold at one time or the other.
The judgment goes on to note that the prosecution relied on section 168 of the Customs and Excise Management Act, 1958 and urged that once it was established that the goods were found in the appellants possession, the burden shifted onto him. The learned Chief Magistrate quotes from Carr-Briant, 29 Cr. App. R. 76, the view that the burden is discharged by evidence satisfying the jury of the probability of that of which the accused person is called on to establish, and goes on to say that-
‘Defendant has offered an explanation as to how he acquired the goods and it is probably true. He has shown he bought 60 bottles Gordons gin on 25-5-62 and 132 bottles on 9-7-62 from John Holt Ltd., Port Harcourt. He has also produced invoices in respect of Martell brandy.’
The learned Chief Magistrate goes on to quote passages from R. v. Cohen  1 All E. R . 203, which read as follows:
‘ … if the explanation given either satisfies the jury or raises a doubt in their minds as to guilty knowledge, the defendant is entitled to an acquittal … ‘
‘In a case such as the present, unless the accused is or knows the actual importer, so that a receipt for the payment of duties can be produced or first hand evidence of payment given, it would probably always be difficult, and often impossible, for him to prove actual payment’.
‘ … A simple way of proving lack of knowledge is to prove that the goods were bought in the ordinary course of trade .. if a man buys something from a trader in the ordinary way …. you would presume that he had no knowledge or reason to believe that the duty had not been paid.’
Finally the judgment says this, that-
‘The balance of probability in this case being in defendants favour, I acquit and discharge him on both counts.’
The ground of appeal for the prosecution was that-
‘The learned trial Chief Magistrate erred in law because he disregarded the provisions of sections 166(2)(a) and 168 of the Customs and Excise Management Act.’
The former of these provisions is (inter alia) that where there is any question whether customs duty has been paid, the burden of proof shall lie on the defendant; the latter is that it is not for the prosecution to prove guilty knowledge or intent, but the onus is on the defendant to disprove it.
The learned judge states in his judgment that-
‘The onus is on the prosecution to show that the defendant has acquired possession of goods liable to duty, and there was evidence thereof” etc.;
then he mentions Carr-Briants case and Cohens and goes on:
‘If the defendant can show then as a reasonable probability that these specific goods were bought from a trader, in the course of trade, at a normal price, he has rebutted all the presumptions made against him and he ought to be acquitted, if he fails, he ought to be convicted. ‘
After some remarks which do not seem to bear on the order made at the end, the learned judge says as follows:-
‘The main brunt of the attack should be directed to the mis-directions of the learned Chief Magistrate which are likely to have affected his judgment.
‘He apparently required that the prosecution should adduce proof of unlawful importation and that the articles were unlawfully acquired, instead of directing his mind to the question whether the duties had been paid, or whether the defendant had no knowledge that duty had not been paid on the goods, and that he had no intention to defraud the customs.’
And on that account the Chief Magistrates decision was set aside and the case remitted for retrial.
With respect we find it hard to see why a case should be remitted for retrial in those circumstances: the evidence that the parties chose to present is there, the Chief Magistrates approach in law is there; if his approach was wrong and his decision was wrong, it should have been corrected in the High Court and the right decision given. We do not think that this was a proper case for an order for retrial.
The more important question is whether the reason for which the order of retrial was made is true. In between the first and the second of the passages quoted from Cohens case there is this in the Chief Magistrates judgment-
‘Another interesting point is the question of whether or not duty was paid on the goods. If, according to Mr. Clinton Sagay, the drinks are not prohibited import it means duty may have been paid on them. In R. v. Cohen it is stated that’ etc.
and there follow the other two passages from Cohen which have been copied from his decision. The three passages from Cohen deal with the points made in the judgment under appeal; it is plain that the Chief Magistrate did direct his mind to the very question to which the judgment under appeal says he did not, so the ground for ordering a retrial disappears.
Learned counsel for the Board of Customs has argued that to exonerate himself the appellant had to give evidence of facts, and satisfy the court that he did in fact buy the bottles in question from the firms from which he said he had bought them; that on the reasoning of the Chief Magistrate the Board would not be able to secure convictions. This fear strikes us as exaggerated, but in any event it is not the cardinal consideration: the cardinal consideration in law is explained at length in the considered judgment in R. v. Cohen, where it is explained at p.206 of the report, that this sort of case resembles a case of receiving stolen goods-.
Other Citation: (1965) LCN/1293(SC)