Attorney-general Of The Federation V Chandrai & Anor (1965)
LawGlobal-Hub Lead Judgment Report
ADEMOLA JSC
This is an appeal by the Attorney-General of the Federation against the acquittal of the two respondents who were charged in the High Court of Western Region holden at Ikeja under section 145(a) of the Customs and Excise Management Act, No. 55 of 1958, that “they on or about the 15th day of September, 1964, at Ikeja Airport knowingly and with intent to defraud the Government of the duty payable thereon acquired possession of one emerald cut diamond and platinum ring valued £16,000 being an article chargeable with customs duty of £8,000 which has not been paid.”
The facts are not in dispute. The 1st respondent bought the ring for £8,000 from Hatton Gardens in London in the proper way under the Export Scheme which exempted him from paying the English purchase tax. Articles so bought are delivered on board ship or on the plane. And so it was that the ring was delivered to the 1st respondent on the plane on 15th September, 1964, which took off from London to Lagos. Meanwhile, the jewelers made due report of the sale, and it would appear that before the arrival of the plane in Lagos the Nigerian Customs and Excise authorities had been duly notified.
On the plane the 1st respondent presented his wife the 2nd respondent with the ring, and she was wearing it on her finger with another ring when they landed in Lagos. The learned judge on the evidence found the following facts:
that the two respondents failed to declare the ring when they were asked by the Customs authorities to declare articles of gold, diamond and other things they had;
(ii) that when the ring was found on the 2nd respondent and the 2nd respondent was told it was dutiable, he (the 1st respondent) disputed it on the ground that it was personal effects not liable to duty.
(iii)that when originally challenged about the rings the 1st respondent stated that the ring the Area Of Law of the charge, and the other one were rings he and his wife the 2nd respondent exchanged on marriage.
The evidence clearly shows that both have been married for a long time. On the facts as found, it is reasonable to impute knowledge and intent to defraud.
The learned judge however decided the case on the interpretation of section 145(a) of the Customs and Excise Management Act which reads “145. Without prejudice to any other provision of this Ordinance, if any person-
(a) knowingly and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition with respect thereto, acquires possession of, or is in any way concerned in the carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or Government Warehouse, or which are chargeable with a duty which has not been paid, or with respect to the importation, exportation or carriage coastwise of which any prohibition is for the time being in force; or
(b)is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition as aforesaid or of any provision of this Ordinance applicable to those goods, 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.”
The learned judge in his interpretation of paragraph (a) of this section says it relates to cases where persons are found in possession of, or carrying goods chargeable with duty which has not been paid; that it relates to fraudulent evasion of duty on goods which has not been paid, but does not relate to evasion or attempt at evasion in respect of dutiable goods.
The learned judge goes on to say as follows:-
“Section 145 relates to unaccustomed goods, i.e., dutiable goods which had found their way into possession of persons without payment of duty chargeable on them.
In the present case the ring Exhibit Fl according to the evidence was dutiable and was not an article or goods in possession of the defendants which was chargeable with a duty which has not been paid. It would have been a different matter if the defendants had passed through Customs that night without declaring the ring for duty purposes and were later apprehended outside.. .”
The learned judge referred to the following remark of Lord Parker, L.C.J., made in the course of the argument in the case of Schneider v. Dawson [ 1960] 2 Q.B. 106 at p. 111:
“There is a difference between the wording of section 304 of the Act of 1952 and section 186 of the Customs Consolidation Act, 1876. Section 304 speaks of knowingly dealing with goods which are chargeable with a duty. That does not mean dealing with goods of a class which is dutiable. Before the onus can rest on the appellant the prosecution must show that the goods have passed the stage of being dutiable and have reached the stage of being chargeable.”
Lord Parker had in mind the wording of the old section 186 of the Customs Consolidation Act, 1876, which spoke of “uncustomed” goods, and the wording of the new section 304 of the Customs and Excise Act, 1952, which speaks of goods “which are chargeable with a duty which has not been paid.” The considered judgment of the court in the case of Schneider v. Dawson states at p. 114 of the report that “the alteration in wording has not affected the principle of the earlier decisions.” The case itself related to goods allowed to come in duty-free for the use of American servicemen. The appellant bought some spirits and cigars from an American serviceman; the court was of the opinion that at the material time duty had become payable. The appellant also received from an American serviceman a quantity of cigars upon the understanding that he could buy as many as he wanted and return the balance. The court was of the opinion that the privilege under which the cigars were not dutiable ceased to apply and the goods became chargeable with duty. These opinions are based on the grounds expressed in McQueen v. McCann 1945 S.C. (J) 151 that:-
“duties attach to goods brought into the country and that, though the duty is not paid at the moment of bringing in because they are by special arrangement allowed to come in free of duty, the duty is leviable later when the commodities pass into other than the privileged person’s hands.”
That principle was applied in Sayce v. Coupe [1953] 1 Q.B. 1. Thus the judgment in Schneider v. Dawson deals with the point raised in the course of the argument by Lord Parker with reference to the facts of that case, and the learned trial judge in the court below in the present appeal would have done better if he had been guided by the judgment. It is true that paragraph (a) of our section 145 is, with slight modifications, similar to paragraph (a) of the Customs and Excise Act, 1952 section 304; but with respect to the learned judge we cannot appreciate the distinction which, vainly in our view, he tried to introduce: it is certainly not borne out by the judgment in Schneider v. Dawson, and both parties to this appeal agree that this distinction does not exist.
For the appellant it was argued that the respondents acquired possession of the ring as soon as they landed with it in Nigeria and therefore an offence under section 145(a) of the Customs and Excise Management Act was established. Learned counsel for the respondents on the other hand submitted that the respondents were already in possession of the ring in England since it was delivered to the 1st respondent in the plane in England when he boarded it; that it would not be correct therefore to say that they acquired possession of the ring in Nigeria. Thus, he argued an offence under section 145(a) was not made out. He contended further that the object of section 145(a) is to cover cases of evasion of duty on goods already in Nigeria and in respect of which duty has not been paid. It was submitted that the present case is best covered by section 145(b) or section 66 of the Act. In reply, counsel for the appellant suggested that it would be proper for this Court, if it formed the view that section 145(a) was inapplicable, to convict under section 145(b) or under section 66.
We are unable to support the view that the respondents “acquired possession” of the ring in Nigeria since it is clear that the ring was bought in London and was delivered to them on board the aircraft. There is no magic in the words “acquired possession” to give them a meaning other than what they signify and we do not see how one could be said to have acquired possession in Nigeria of a ring bought in London and delivered to the purchasers on board an aircraft which left London for Nigeria.
It appears to us that paragraph (a) of our section 145 provides for two classes of offences:-
(1) defrauding the Government of any duty payable on goods;
(2) evading any prohibition with respect to goods.
We are concerned with the first. The paragraph speaks of a person who knowingly and with intent to defraud the Government of any duty payable on goods, acquires possession of, or is concerned in any way with dealing with, goods:-
(i) which have been unlawfully removed from a warehouse or Government warehouse, or
(ii) which are chargeable with a duty which has not been paid.
The count is worded to bring the charge within the second arm; it speaks of a ring “chargeable with customs duty;” and it alleges that the respondents acquired possession of the ring at the Ikeja Airport. It is framed on the basis that the ring became chargeable with the duty upon the respondents landing at the Ikeja Airport with the ring; and the argument for the appellant is that the respondents acquired possession of the ring as soon as they landed at the Ikeja Airport. But, as already stated, the respondents had acquired possession of it long before then.
Undoubtedly, the charge against the respondents has been unhappily framed; we refrain from expressing an opinion whether a charge otherwise framed in relation to the circumstances of this case can be covered by paragraph (a) of section 145. The duty before us, and indeed before the learned trial judge, is to say whether or not the facts of the case are properly related to the charge before the court. As we stated earlier, it will be preposterous to say or to assume that the respondents “acquired possession” of the ring in this country, and this is the essence of the charge the respondents as accused persons were called upon to meet.
We stated earlier that counsel for the appellant has urged this Court, in the circumstances of the case to convict the respondents under section 145(b) or under section 66 of the Act.
He did not refer us to any enactment under which it could be done. We feel unable to do so in this case because we are not satisfied that the learned trial judge himself, on the charge before him, could have properly convicted the respondents under either of those provisions by virtue of any relevant enactment which gives power to the trial court to convict of an offence other than the offence charged.
Other Citation: (1965) LCN/1203(SC)
