Sunday Nwosu Vs Board Of Customs & Excise (1988) LLJR-SC

Sunday Nwosu Vs Board Of Customs & Excise (1988)

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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.

iv. The sentence passed on the respondent at that Court is null and void as it was contrary to section 33 (6)(b) and (c) of the Constitution of the Federal Republic of Nigeria, 1979.

v. The appellant herein is in custody and he wishes to be present at the hearing of this appeal.”

In his brief of argument, the Appellant has raised four issues and these are:

(1) Whether the Court of Appeal could validly reverse the trial court’s decision which was primarily based on the credibility of witnesses and their demeanour.

(2) Whether the Court of Appeal properly evaluated the evidence preferred before the trial court.

(3) Whether the Notice to deliver Judgment on 24/6/87 prepared on 17/6/87 but posted on 19/6/87 to the Appellant’s Counsel was sufficient and valid and

(4) What is the effect of the Notice on the sentence delivered by the Appellate Court”

In his own Brief, the Respondent has set out three issues which are substantially the same as those of the Appellant.

The appeal came up in this Court on the 6th October, 1988 and after hearing both Counsel in argument, the Court allowed the appeal and adjourned till today 16th December, 1988 to give reasons for the judgment. I now give my reasons for agreeing that the appeal be allowed.

I propose to deal first with the 3rd and 4th issues which relate to the 2nd ground of appeal. The appellant’s complaint was that the lower Court had delivered its judgment in his absence and for this reason, his constitutional rights under section 33, sub-sections 6(b) and (c) of the 1979 Constitution have been violated. Counsel therefore submitted that the judgment was null and void.

It is enough to state that Counsel did not press this point in his oral argument nor do I find any convincing argument in his Brief which could make me invalidate the judgment. Section 33, sub-sections 6(b) and (c) do not state that any judgment pronounced in the absence of a litigant shall be void. On the contrary, those sub-sections provide that:

“6. Every person who is charged with a criminal offence shall be entitled

(a) …….

(b) to be given adequate time and facilities for the preparation of his defence.

(c) to defend himself in person or by legal practitioners of his own choice.”

In the instant case, the Appellant had appeared before the lower Court and defended himself; and although it would have been desirable for him to be present when the judgment was delivered, the fact that he was absent is no violation of his constitutional rights.

Apart from this, the Respondent in his Brief has invited the attention of this Court to section 28(2) of the Court of Appeal Act 1976 which provides that:

“The power of the Court of Appeal to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.”

There is no merit in this ground of appeal and it is dismissed.

I now come to the 1st and 2nd issues. The real point in controversy will be better understood by a brief statement of the facts of the case. The relevant facts were as follows:

At about 12.45 a.m. on the 3rd March, 1985, the Appellant and two soldiers were stopped by Customs Officers on the Igbetti-Ilorin Road for what appeared to be a routine check. The appellant and his friends had 4 bales of materials in their vehicle. When questioned, the men told the Officers that the bales contained army blankets. The Officers were not satisfied and insisted on seeing the contents. The appellant and the soldiers resisted, whereupon the Customs men called in P.W.1, their superior officer. When P.W.1 came along. he cut open the bales and found them to contain coat linings.

Now, the case for the prosecution was that when the P.W.1 questioned the Appellant (to the hearing of P.W.2) he (appellant) told the P. W.1 that “he was coming from the Republic of Benin where he had bought the goods.” In those circumstances, the P.W.1 arrested the three men and got them to make written statements. Subsequently they were charged to the Court.

As against that story, the Appellant denied that he ever told the customs officer (P.W.1) that he was coming from the Republic of Benin. He asserted that what he said was that he bought the coat linings from one Alhaji at a Shaki market. On the same day that he was arrested (3/3/85) he made a statement Exhibit C to the same effect. He also stated that in consequence of his story a customs Officer P.W.4 accompanied him to Shaki on two occasions to look for his vendor, but they could not trace him.

At the end of the whole case, it would appear that the central issue which the trial Judge had to resolve was whether the Appellant had imported the materials from the Republic of Benin or whether he had bought them in an open market at Shaki in Nigeria. The issue which then arose was one which turned on the facts and it was within the exclusive preserve of the Judge to make a finding on those facts. This was how the Court of trial resolved it:

“The evidence led by the prosecution in support of the said allegation is no more than the fact that the defendant was found in the company of two soldiers in uniform in the peugeot station wagon carrying four bales of coat lining which they claimed to be army blanket and which the customs officers found to be coat linings. There is no evidence that the coat linings were imported or that they are liable to duty although two witnesses claimed that they heard the defendant say that he bought the goods from Benin Republic. It is also claimed that the two soldiers said that they were sent out by their officer in charge, the brother of the defendant, with passes so they can assist the defendant to carry the bales; they had to use the station wagon because there was no army vehicle available. Enquiries from Military sources disclosed that there was no officer in charge there who was the brother of the defendant and the soldiers were released to the army authorities in accordance with normal practice on the understanding that when the matter was ready for prosecution the soldiers would be surrendered to the customs.

It is on the basis of this evidence that it is urged upon me to find the defendant guilty of the charge against him, but let us assume for the purposes of the argument that the prosecution has established its allegation, as it is outlined in the charge, by sufficient evidence; would that be sufficient by itself for one to find the defendant guilty when the evidence led before me is that the two soldiers, who have not been prosecuted, are the ones who claim to have been sent to assist the defendant in the carriage of the goods and to give the operation the appearance of legitimacy If they are not being prosecuted why is the defendant being prosecuted when, as he stated in his evidence, he rejected the claim made by one of the soldiers in this regard and insisted that it was untrue!! Be it noted however, that even in the account which the prosecution gave of the involvement of these two soldiers not one of them is said to have made any reference to Benin Republic as the source of the lining. The defendant however, states clearly in the statement, which he had the opportunity of making at the earliest time after his arrest, that he had bought the bales of coat lining from an Alhaji in Shaki market and that it was in his effort at transporting them back to Ilorin that he sought and obtained, a lift from the two soldier’s in the peugeot station

wagon; it was upon their arrival at the Igbetti Check point that they got arrested and whisked off to the Headquarters office of Customs in Ibadan. The defendant denied ever telling anyone that he had bought the goods from Benin Republic.

As I said earlier on there is no evidence before me either that the bales of coat lining were not manufactured in Nigeria and the claim which the 1st and 2nd prosecution witnesses said they heard the defendant make as to buying them from Benin Republic he stoutly denied and there was no other positive evidence from the prosecution to show that that was in fact not the true state of affairs. Furthermore, notwithstanding the claim by the prosecution that they heard the defendant say that he bought the goods from Benin Republic they still went with him on two occasions to Shaki to find out the person from whom he bought, which shows that his claim may not be unreasonable after all and that they did not believe his story as to buying from Benin Republic.

In these circumstances, therefore, can the prosecution be said to have established the allegation which they make against the defendant in this charge”

After this, the trial Judge held that he was impressed by the Appellant’s evidence, and that

“by his demeanour generally, both in the dock and outside of it, I have no reason to doubt the truth of the account which he gave of how he came by the bales of coat linings and I have no option but to find the defendant not guilty of the charge against him.”

As previously stated, the Board of Customs and Excise was dissatisfied and appealed to the lower Court. Two of the issues submitted for determination in that Court were:

“(i) Whether on the evidence it was shown or not that the coat linings were imported.

(ii) Whether on the evidence it was shown or not that the coat linings were liable to import duty.”

It would be seen that these issues turned on the facts, and in that Court, Counsel for the Board of Customs submitted that the trial Court should not have believed the Appellant because he did not call any witness to show that he bought the goods at Shaki market. Counsel also submitted that “demeanour alone as found by the trial Judge was not sufficient, adding that the goods were dutiable but not absolutely prohibited:’

The Court of Appeal seemed to have accepted these arguments for in its judgment, (per Onu, J.C.A., – Ogundare and Omo JJ.C.A. concurring) the lower Court held as follows:

“I see the force in learned counsel for appellant’s argument. The respondent’s defence at the trial was that he bought Exhibits A-A3 from one Alhaji Baba Bose at the Shaki market, namely from an open market. Was that to be the only point which the trial court was to contend with and the respondent bought Exhibits A-A3 from the open market once the trial court believed him and also relied on his demeanour, the matter might have ended there.

However, posed against Exhibit C and the respondent’s defence in court was the evidence of P.W.1 and P.W.2 that the respondent had upon arrest and interrogation, said at the earliest opportunity that he was conveying Exhibit A-A3 from Benin Republic. That was what led to the customs’ officers in taking respondent to Shaki twice in order to locate the seller of the goods to him and to ascertain whether he had paid duty on them or not.”

Later on in the judgment, Onu, J.C.A. referred to sections 166 and 168 of the Board of Customs & Excise Management Act 1958, and after considering the effect of two cases of the Supreme Court:

S. Ebiri v. Board of Customs & Excise (1967) NMLR 35; Board of Customs & Excise v. Alhaji Ibrahim Barau (1982) 10 SC. 48 on those two sections, he went on to state that:

“The matter therefore is strictly statutory. The respondent’s demeanour alone would not therefore be a sufficient guide to decide respondent’s culpability or otherwise as erroneously found by the learned trial Judge when he held –

“Furthermore, notwithstanding the claim by the prosecution that they heard the defendant say that he bought the goods from Benin Republic they still went with him on two occasions to Shaki to find out the person from whom he bought which shows that his claim may not be unreasonable after all and that they did not believe his story as to buying from Benin Republic.”

Secondly, the learned trial Judge must have erred in law as well as on the facts when he held at page 48 of the trial court’s record thus:

“I have given a careful consideration to the evidence given by the defendant and, although I find it difficult to believe him when he claimed that every officer of customs that he came into contact with solicited for a bribe from him, I must say….that favourably impressed by the manner in which he gave his evidence from the witness box and by his demeanour generally both in the dock and outside of it, and I have no reason to doubt the truth of the account which he gave of how he came by the bales of coat lining and, as the prosecution has made no effort whatsoever to establish the essential ingredients of the offence which they charge the defendant with having committed……”

The respondent’s claim was therefore unreasonable after all since firstly, it was his duty to prove he had paid duty on Exhibits A-A3 but this he failed to do by calling witnesses for the purpose or producing the bill of lading. Secondly, when the 1st P.W. first stopped Exhibit B at about 12.45 a.m. at Igbetti on the day the respondent and his two soldier comrades in crime were arrested, he first of all informed 1st P.W. that they were carrying army blankets to Ilorin and that they were not going to allow them (customs officers) to see what the inside of the bales contained. However, when the 1st P.W. forced open Exhibits A-A3 they saw them to contain coat linings. Thirdly, P.W.1 and P.W. 2 under cross-examination stated that the two soldiers that accompanied the respondent had averred that Exhibits A-A3 were being carried to Ilorin on the orders of a Captain Nwosu who happened to be the respondent’s brother and who had not been traced. Added to the above is the fact that both P.W.1 and P.W.2 said that to their joint hearing, the respondent had stated that he bought Exhibits A-A3 from Benin Republic.

Had the learned trial Judge considered the above facts dispassionately coupled with the respondent’s inability to produce evidence that he had paid customs duty on Exhibits A-A3, he would in my view, have arrived at a different conclusion.”

Now, with the greatest respect to the learned Judge of the lower Court, I think that the trial Judge had given due consideration to all the facts of the case as can be seen from that portion of his judgment which I quoted earlier on. The only difference is that the Court of first instance held that the evidence of the Appellant was credit-worthy and accepted it whilst the Court of Appeal was of the opinion that the Respondent’s evidence should have been accepted. But the Law is clear on the point that an appellate Court is not in such a unique position as a trial Court and it should not reverse a finding of a trial Court unless that finding runs contrary to the trend of accepted evidence. Fashanu v. Adekoya (1974) 1 All NLR 35. Apart from this, I must invite attention to the principle laid down by this Court in Balogun & ors. v. Agboola (1974) 1 All NLR (Pt. 11) 66 at p.73. when the Supreme Court held:

‘The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court. Interference by a court of appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the court of appeal) were dealing only with the cold sullen print of the records before them.”

In this regard, I am unable to find anything in the judgment of the lower Court which suggests that the finding of the trial Court was perverse or not supportable by the evidence before the trial Judge. In those circumstances, I am of the view that the lower Court should not have interfered with it.

In his judgment, Onu, J.C.A. was of the view that the issue in this appeal was strictly statutory and that the Appellant’s demeanour alone was not sufficient to decide the Appellant’s culpability. I myself think that the Appellant’s culpability can be determined in two stages:

(a) First, the facts of the case must be assembled, evaluated and proper findings made on them.

(b) Then, the applicable law must be applied to those findings.

In regard to (a) above, the facts of the case showed that there were two versions of how the appellant came to be in possession of the bales of coat lining. The appellant said that he bought them at a market in Shaki whilst the Respondent stated that the Appellant told us that he bought them in the Republic of Benin and imported them into Nigeria.

The trial Court, after a close examination of the evidence, accepted the Appellant’s version, and in my view that is an end of the matter.

In regard to (b), the appellant was charged under section 145(a) and (b) of the Customs & Excise Management Act 1958 with carrying goods which are chargeable with customs duty. – see section 145(a). He was also charged with evading to pay the duty payable, knowingly and with intent to defraud Government.

It must be stated in regard to these charges, that the law is the same as in any criminal case, – the offence must be proved beyond reasonable doubt. There is however the proviso in sections 166(2) and 168 of the Customs & Excise Act which shifts the onus of proof of certain matters on the Defendant. These sections stipulate that:

“162(2) Where in any proceedings relating to customs or excise any question arises as to the place from which any goods have been brought or as to whether or not –

(a) any duty has been paid or secured in respect of any goods; or

(b) any duly alleged to be payable is correctly assessed…..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 on the other party to the proceedings.

168. In any prosecution for an offence under the customs and excise laws it shall not be necessary to prove knowledge or intent, but where the prosecution is in respect of an offence of doing anything knowingly or recklessly or with a specified intent, the onus of disproving that he did such thing knowingly or recklessly or with such intent shall be on the defendant.”

But it should not be presumed that under these sections, the prosecution is relieved of the general burden of adducing evidence in proof of the charges. My view is that the prosecution is duty bound to tender evidence in support of other essential ingredients of the offence. If it fails in this respect, the defendant is entitled to be acquitted.

The Supreme Court had occasion to consider the effect of those sections in Stephen Ebiri v. Board of Customs & Excise (Supra) and Brett J.S.C. pronounced that:

“The result is that if a Customs Officer finds a person anywhere in Nigeria in possession of goods which are chargeable with import duty, the onus of proving either that the duty has been paid or that there was no intention to defraud the Government of any duty is cast upon the defendant”

(Italics mine)

It seems to me that in the instant case, the Respondent is required to prove that the goods in the possession of the Appellant are chargeable with import duty. This it failed to do.

In this respect, the trial Judge found that the Respondent had failed to prove either that the goods were imported (i.e. not manufactured in Nigeria) or that they were liable to import duty. That decision is supported by the evidence of the P.W.4 Isiaka Oloyede, a Grade II Officer of the Customs & Excise, who, when cross-examined stated;

“I cannot say with certainty whether duty has been paid by anybody on these linings. I cannot say with certainty whether these linings could have been manufactured in Nigeria. I cannot say whether these goods are dutiable or not.”

In view of that evidence, it cannot be said that the prosecution has proved that the alleged goods were chargeable with import duty, and the trial Judge was justified in discharging the appellant. In my view, the Court of Appeal was in error to have reversed that decision.

It was for these reasons that I allowed the appeal on the 6th of October, 1988

The appeal therefore succeeds and it is allowed; the conviction and sentence of the Court of Appeal are hereby set aside and the judgment of the trial Court is restored.

The appellant is accordingly discharged and acquitted.

Other Citation: (1988) LCN/2370(SC)