Sunday Nwosu Vs Board Of Customs & Excise (1988)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C. 

At the Federal High Court holden at Ibadan, the Appellant was charged on two counts with the following offences:

“Count 1
That you, SUNDAY NWOSU on or about the 3rd day of March, 1985 at about 10.55 hrs, along Igbett/Ilorin road, Igbetti, within the Ibadan Judicial Division of the Federal High Court of Nigeria, in relation to four bales of Linings (2824.4 sq. metres) were knowingly concerned in the fraudulent evasion of a duty of two thousand, nine hundred and sixty-five Naira, sixty two kobo (N2965.62K) chargeable thereon, being goods valued at five thousand, six hundred and forty eight Naira, eighty Kobo (N5648.80K) and you thereby committed an offence punishable under Section 145(b) of the Customs & Excise Management Act, No. 55 of 1958.

Count II

That you, SUNDAY NWOSU, on or about the 3rd day of March, 1985, at about 10.55 hrs, along Igbetti/Ilorin Road, Igbetti, within the Ibadan Judicial Division of the Federal High Court of Nigeria, knowingly and with intent to defraud the Federal Government of Nigeria of the duty payable thereon were concerned in carrying in a Peugeot station wagon with registration number L 9774 MB four bales of Linings (2824.4 sq. metres), being goods valued at five thousand, six hundred and forty eight Naira, eighty kobo (N5648,80K), and chargeable with Custom duty of two thousand, nine hundred and sixty five Naira, sixty two kobo (N2965.62K) which had not been paid and you thereby committed an offence punishable under section 145(a) of the Customs & Excise Management Act. No. 55 of 1958.”

He was arraigned before Okuribido, J. who, after hearing evidence discharged and acquitted him on the two counts. The learned trial Judge held that there was no evidence before him that the bales of coat lining which the defendant was alleged to have had in his possession were manufactured outside Nigeria and therefore dutiable.

The learned Judge also went further to say that it was the duty of the Respondent not only to prove that the goods are chargeable with import duty but also that the goods were imported. As previously stated the Defendant was acquitted and discharged on the two counts. The Board of Customs was dissatisfied with the judgment, and it appealed to the Court of Appeal. In that court they were successful; the acquittal was set aside and an order of conviction was recorded against the Appellant; in addition, the Appellant was ordered to pay a fine of N33,892.80K or serve 2 years imprisonment with Hard Labour. The Appellant has appealed further to this Court on. Two grounds of appeal which are as follows: “Grounds of Appeal:

1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in reversing the trial court’s decision which they too agreed to be based on credibility of witnesses and their demeanour.

Particulars of error and misdirection in Law:

i. The trial court’s decision based on credibility and demeanour of witnesses should not be disturbed by the appellate Court of Appeal.

ii. The Court of Appeal has substituted its own views with those of the trial court which has occasioned substantial miscarriage of justice.

2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in passing their sentence in the absence of the respondent therein (appellant herein) and his counsel when the respondent therein was not given the opportunity of being heard which is contrary to section 33(6) (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1979.

Particulars of error and misdirection in law:

i. The appeal was argued on 4/6/87 and the Court of Appeal adjourned judgment sine die.

ii. The Registrar dispatched the Notice of Judgment dated at Ibadan on 17/6/87 to respondent’s counsel’s address at Ilorin on 19/6/87 and the Notice of judgment was received by respondent’s Counsel at Ilorin on 30/6/87.

iii. The Court of Appeal delivered its decision on 24/6/87 in the absence of the respondent and his counsel without considering the inefficiency of Nigeria’s postal system.