Board Of Customs & Excise V. Alhaji Ibrahim Barau (1982)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, C.J.N.
The respondent, Alhaji Ibrahim Barau, was convicted in the Federal High Court on 18th December, 1980, of two offences under the Customs and Excise Management Act, 1958.
The particulars of the first offence (as amended) state that the respondent, on or about the 4th day of August, 1978, at the Murtala Muhammed Airport, Ikeja, in relation to thirteen bundles of carpets valued at N7,500, was knowingly concerned in a fraudulent evasion of the Import Prohibition Order, 1978, applicable to such goods, and thereby committed an offence punishable under Section 145(b) of the Customs and Excise Management Act, 1958.
The particulars of the second offence state that on or about the same date and at the same place, with intent to evade the prohibition imposed on the importation of carpets he was concerned in importing into Nigeria thirteen bundles of carpets valued at N7,500 contrary to the Import Prohibition Order, 1978, and thereby committed an offence punishable under Section 44 subsection (1) (b) of the said Act.
The facts on which the convictions were based, and which are not in dispute, are as follows. On 4th August, 1978, the respondent arrived by air at the Murtala Muhammed Airport, Ikeja, on a Nigeria Airways flight from London. He brought with him in the luggage compartment of the aircraft thirteen bundles of carpets which he had bought in London. On arrival at the airport, the respondent’s luggage was examined by a Customs Preventive Officer named Owolabi. Later Owolabi brought the respondent to Peter Okpachu (2nd P/W) a Superintendent Collector of Customs who was the officer-in-charge of the Ikeja Airport at the material time. On meeting Okpachu, the respondent introduced himself as Alhaji Barau of Galma Petroleum and Gas Co. Ltd. After the introduction, the respondent told Okpachu that he (respondent) had just returned with thirteen bundles of carpets on board the Nigeria Airways plane which had just arrived at Ikeja. He also told Okpachu that the carpets were on the tarmac. Okpachu then called Akinlaja Martins (3rd P/W) and one Mrs. Oshiyemi the two senior officers around, to come with him to the tarmac. The respondent went with them. At the tarmac they saw the thirteen bundles of carpets.
Superintendent Okpachu there and then informed the respondent that he had contravened the Import Prohibition Order by importing the carpets into the country. The respondent was then arrested and his passport impounded. When he was asked why he had imported the carpets into the country, he replied that he wanted to use them to furnish his company’s house along the Badagry Express Road. At no time during this encounter did the respondent say that he did not know that the importation of carpets into Nigeria had been prohibited.
After his arrest, the respondent made a written statement (Ex. D) to Miss Sidikat Dayo Amisu (5th P/W). The statement reads –
“I travelled by Nigeria Airways WT. 917 from London with the thirteen bundles of carpet on behalf of myself and a lady, Miss C. Bonje, a Nigerian now based in London – firmly believing that the said carpet all will be used to form part of the furnishing of a twin house newly completed at kilometre 19 Lagos-Badagry Express Way. On declaring the carpet to the Customs at Murtala Muhammed Airport, Ikeja, it was siezed by customs authorities and I was told it is under prohibited items. I had since been with the customs until after I have made this statement.”
Even in this written statement (Ex. D), the respondent did not say that he did not know that the importation of carpets into Nigeria was prohibited.
At the trial on 23rd July, 1980, the respondent (as 1st D/W) testified on oath in his defence. Part of his evidence reads –
“I had no intention to defraud or to evade customs or to contravene anything that is supposed to come. I genuinely bought the carpet for my house. I thought it was a matter of paying duty. I had no intention of evading Import Prohibition Order. That was why on arrival the first thing I did was to go to the customs and tell them that I had excess luggage which I thought was dutiable.”
Before the respondent left the witness-box, the following dialogue took place between him and the trial Chief Judge:-
“By Court – You have been in business all along.
1st D/W – Yes.
Court – Do you know that certain goods are
prohibited from importation into Nigeria
1st D/W – After a long hesitation the witness says:- ‘I
do not know. I travel quite a lot’.”
Thereafter the defence counsel asked him whether he knew before the 4th of August, 1978, that the importation of carpets was prohibited, he replied that he did not know, this time without any hesitation.
After reviewing the evidence adduced before him by both the complainant (the Board of Customs & Excise) and the respondent, the learned Chief Judge found as follows:-
“It is in evidence that the defendant brought the 13 bundles of carpets. The defendant is a businessman. In fact, at the material time, he was the Managing Director of Galma Petroleum and Gas Ltd. He is now a Senator. When he was asked by the court if he knew that certain goods were prohibited from importation into Nigeria, he hesitated for a long time and then answered – “I do not know. I travel quite a lot.” It is obvious to me that the defendant told a deliberate untruth when he testified that he did not know that the importation of carpets is prohibited. At the time he imported the thirteen bundles of carpets into Nigeria, he knew it was prohibited. He was only play acting when he called the Customs Officers to assess the duty he was supposed to pay on the thirteen bundles. He is pleading ignorance of the law which of course is no defence. Ignorantia juris non excusat. Calling the Customs Officers to the tarmac where the thirteen bundles of carpet were off-loaded from the aircraft so that they could tell him what customs duty to pay, was designed to fraudulently evade the Import Prohibition.”
The learned Chief Judge then convicted the respondent of the two offences after observing that it would be preposterous in the extreme to hold –
“as in the case now in hand that a person who has smuggled a large quantity of prohibited goods would be set free simply because he thought he could bluff his way through by going to the customs officers and telling them that he was ready to pay duty on the said goods. It is laughable for a businessman of the defendant’s standing and a Senator to come to court and testify on oath that he did not know that some goods like imported carpets were under absolute prohibition.”
The learned Chief Judge also ordered that the thirteen bundles of carpets should be destroyed at the expiration of the statutory period for filing appeals. Before making this order, he ordered the respondent to pay a fine of N15,000 or go to prison for twelve months with hard labour in default on the first count and to twelve months imprisonment with hard labour on the second count.
The respondent, having appealed to the Federal Court of Appeal against the convictions, was released on bail by that court on 16th January, 1981.
In allowing the appeal, the President of the Federal Court of Appeal, after referring to the passage in the judgment of the Chief Judge of the Federal High Court to which I have referred earlier, observed:-
“From the above passage it is clear that the learned Chief Judge came to his conclusion that the appellant was not telling the truth on the ground that (1) he was a businessman and he was Managing Director of Galma Petroleum and Gas Ltd., (2) he was a Senator, (3) he was ignorant of the law and (4) he was play acting when he called the customs officers. With respect I have not been able to trace any evidence to show the nature of the business of the appellant or his company, nor have I seen any link between being a Senator and importation of carpets. Indeed the appellant became Senator only in 1979, a fact we all know.
As the learned Chief Judge rightly pointed out that ignorance of the law was no defence, then the question asked by the court was to that extent irrelevant. There is no such presumption that every person knows the law; the presumption, again as pointed out by the learned Chief Judge, is that ignorance of the law is no defence. The question by the court as to whether the appellant knew whether certain goods were prohibited from importation could not be used to discredit the evidence given by the appellant in this case.
Even if that be the case, the appellant was not accused of failing to know the law. He was charged with offences accusing him of knowingly and with intent fraudulently to evade a prohibited order. To sum it all up, I am not convinced that there was evidence before the court to justify conclusions reached by the learned Chief Judge in the above quoted passage of the judgment.
The next important issue raised is whether the appellant has discharged the burden of proof placed on him by Section 168 of the Customs and Excise Management Act, 1958. The section reads:-
‘168. In any prosecution for an offence under the customs or 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.’
In all offences under the Customs and Excise Management Act, 1958, which fall within the provisions of the above section the law has in fact saved the prosecution from proving knowledge or recklessness or intent and has shifted the burden on the defendant to disprove such knowledge or intent or recklessness. Does this however mean that the complainants are under no duty whatever to proffer any evidence in support of the charge with particular reference to proving knowledge or intent and that it is enough to frame a charge and arraign the defendant and then leave him to extricate himself out of the charge If the defendant must provide all the answers, has the appellant in this case discharged this burden The answers to the above questions will provide a solution to this appeal.”
After considering the submissions of counsel for the respondent on this point, he observed further as follows:-“In all offences where knowledge or intent or fraud form part of the elements necessary to prove a charge, there is the requirement that not only must the actus reus be committed but the defendant must “have mens rea before he can be convicted for the offence. In other words the defendant must have known that what he did was wrong or amounted to a breach of what the law wanted to protect. The defendant may have a reasonable idea, not actual knowledge that a particular course of action has been prohibited but he deliberately or recklessly refuses to find out the true position, that is he ‘shuts his eyes’ in such a situation the defence of ignorance may or may not avail him. In such cases, each case must be considered on its own merit in the light of the evidence available. The court then must consider whether on the balance of probabilities the defendant has established his defence of lack of knowledge. It seems that this defence is available even if it pertains to the ignorance of the law in such cases where the offence charged specifically makes ‘knowledge’ to be a pre-requisite of the offence.”
The Federal Court of Appeal then allowed the appeal, set aside the convictions and sentences, and acquitted and discharged the respondent, after the President of the Court had finally found as follows:-
“Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under count 1 in the present appeal – that is a charge under Section 145 (b) of the Customs and Excise Management Act, 1958 – the prosecution had a duty to give sufficient evidence as would be able to point to the fact that the appellant was ‘knowingly concerned in any fraudulent evasion ……. of any such prohibition.’ It is not enough as I have already pointed out, and as was also stated in Dada’s case, for the prosecution to prove importation and keep quiet. In my opinion at such a stage the provisions of Section 168 of the Customs and Excise Management Act, 1958, have not been called into action. It is for the prosecution to show that the defendant’s actions generally give a prima facie proof of having knowledge and the intent to evade. For an absolute liability to be created the statute must be very specific and must not, in my opinion, use such terms as ‘knowingly and with intent to evade.’ It is, I think, beyond doubt that the offence created is not for the mere importation but more on the intent to evade. This is the issue to which the learned Chief Judge in this case had not adverted his mind as a result of which he misdirected himself on the issue before him and dwelt on the issue of ignorance of the law. But even on this score I am of the view that in cases of this nature the defendant cannot be convicted unless it can be shown that he has intent to evade the prohibition. In the case in hand the appellant had given his reasons for the importation (1) that he was ignorant of the prohibition, (2) that he wanted to furnish his house, (3) that he put in evidence the plans of the house and (4) that his evidence was not contradicted. I have seen in the judgment where the defence of ignorance of the law was considered but I have not seen where any consideration was given as to the evidence given in respect of the house. As the prosecution did not challenge or contradict the evidence of the defence I am satisfied that the learned Chief Judge was in error for failure to assess all these pieces of evidence given by the appellant. It is not enough for the trial court to use a blank epithet ‘I do not believe’ without giving consideration of the evidence given as a whole by the defendant. This is so both in civil and criminal cases (Oladehin v. Continental iles Mills Ltd. (1978) 2 S.C. 23.
The second count dealt with a charge under Section 44 (1) (b) of the Customs and Excise Management Act, 1958. The facts in the present appeal and those in Dada’s case are on all fours. Both defendants brought in goods at Murtala Muhammed Airport. Both declared the goods brought in. Both gave reasons to the customs officers consistent with their evidence in court. Both pleaded ignorance. And both were disbelieved by the trial court on their ignorance of the law and as to their motive for declaring the goods. I feel fortified by the English decisions quoted above in following the decision in Dada’s case as a result of which I have to agree with Mr. Sofola that the appeal on this count should succeed.
In the course of my consideration of the Customs and Excise Management Act, 1958, and the various Acts amending it or pertaining to customs and excise I became more convinced that Sections 44 and 145 of the Customs and Excise Management Act, 1958 were not intended to create absolute criminal offences. This is so not only because such phrases as ‘knowingly and with intent to evade’ and ‘with intent to evade’ have been used but also because there are other sections of some of the Acts which have created offences with absolute criminal responsibility.”
The other Justices of the Federal Court of Appeal, (Nnaemeka-Agu and Uthman Mohammed, JJCA.) who heard the appeal, agreed with these findings.
Against this decision, the Board of Customs and Excise, (hereinafter referred to as the appellant) has now appealed to this court on the following grounds:-
“GROUND 1
The learned Justices of the Court of Appeal misdirected themselves considerably on the intendment of Section 168 of the Customs and Excise Management Act 1958 by holding that it is for the prosecution to prove knowledge and intent of an accused person charged under Sections 145(b) and 44(1) (b) of the Customs and Excise Management Act 1958 before the provisions of Section 168 of the Customs and Excise Management Act 1958 would be called into action, and they thereby came to a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal appears in various portions of their judgment but particularly on the following excerpts of the judgment of the President:-
‘Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under Count 1 in the present appeal – that is a charge under Section 145 (b) of the Customs and Excise Management Act, 1958 – the prosecution had a duty to give sufficient evidence as would be able to point to the fact that the appellant was ‘knowingly concerned in any fraudulent evasion…….of any such prohibitions.’ It is for the prosecution to show that the defendant’s actions generally gives a prima facie proof of having knowledge and the intent to evade.’
GROUND 2
The learned Justices of the Court of Appeal misdirected themselves in law by asserting that ‘ignorance of the law’ shall found a defence for an accused person charged with knowingly concerned in a fraudulent evasion of a prohibition under Section 145(b) of the Customs and Excise Act 1958 when in fact ‘ignorance of the law’ is merely an element that may be taken into consideration in evaluating any defence of lack of knowledge by an accused person in any such situation under the said section of the Customs and Excise Management Act 1958, and they thereby came to a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal is clearly indicated in the following excerpts of the judgment of the President:-
‘The Court then must consider whether on the balance of probabilities the defendant has established his defence of lack of knowledge. It seems that this defence is available even if it pertains to the ignorance of the law in such cases where the offence charged specifically makes ‘knowledge’ to be a prerequisite of the offence.’
GROUND 3
The learned Justices of the Court of Appeal erred in law by failing to make an order that the carpets involved in this case should be forfeited to the Board of Customs and Excise by virtue of Section 43(b) of the Customs and Excise Management Act, 1958, and paragraph 1(1) of the Import Prohibition Order 1978 (L.N.16 of 1978); even if the appellant was able to establish that he was not knowingly concerned in fraudulent evasion of import prohibition, or that he had no intent to evade the prohibition imposed on the importation of carpets when he imported the carpets.”
At the hearing of the appeal before us against the decision of the Federal Court of Appeal, the learned Federal Director of Public Prosecutions, who appeared for the Board of Customs and Excise (the appellant), made a number of submissions. Reduced to their essential details, these submissions, based partly on the construction of the relevant provisions of the Customs and Excise Management Act, 1958, (when compared with a similar English Act) and the subsidiary legislation made thereunder, partly on the grounds of appeal already set out above, and finally on the written Brief of Argument filed by him, are as follows.
The Federal Court of Appeal erred in its interpretation of the relevant provisions of the Customs and Excise Management Act (hereinafter referred to as the Act). It was this erroneous interpretation which led the court to come to the conclusion that it is the prosecution which had to prove the knowledge and intent which are two of the principal ingredients of the offence. Secondly, the Court of Appeal erred in setting aside the findings of fact of the learned trial Chief Judge who saw and heard the witnesses and the accused and substituting therefor its own findings. Finally, learned counsel contended that it would be wrong to impute to the word “TRADE” added in brackets to the words “Absolute Prohibition” which formed the heading to Part II of the First Schedule to the Import Prohibition Order, 1978, emphasis and connotations which the word does not carry bearing in mind the other provisions of the said Order.
For the respondent, it was submitted by learned counsel who appeared for him that nowhere in the judgment of the learned Chief Judge is there any reference to the standard of proof which has to be attained by a defendant upon whom a burden of proof rests in a criminal trial. Learned counsel then went on to submit, quite rightly, that if the evidence raises a presumption of guilt, then it is for the accused to rebut that presumption, but that all he is required to do is only to establish a balance of probabilities in his favour. Counsel then submitted that since the learned Chief Judge did not indicate that he had this principle in mind, the Federal Court of Appeal was right in holding, as it did, that it would be unsafe to rely on the Chief Judge’s specific finding that the respondent did know that the importation of carpets was prohibited, and also on his implied finding that he (the respondent) was knowingly concerned in a fraudulent evasion of the Order in relation to count one; learned counsel also contended that the Court of Appeal was right to hold that it was unsafe to rely on the Chief Judge’s finding that the respondent had a deliberate intent to evade a prohibition against the importation of carpets in relation to Count Two.
The other submissions of learned counsel for the respondent may be summarised as follows. The Chief Judge’s finding that the respondent’s act in calling customs officers to the tarmac so that they could tell him what customs duty to pay was fraudulently designed to evade the import prohibition, was clearly erroneous. Since the real point in issue in the case is whether the respondent intended to evade the prohibition, it is not possible for a defendant to have an intent to evade a prohibition of which he is not aware. Learned counsel then said he was amazed at the observation of the learned Chief Judge that the respondent was “play acting” when he asked the customs officers how much duty he had to pay on the carpets. He asked the court not to attach any importance or credence to this observation. Finally, learned counsel submitted that since Part II of the First Schedule to the Import Prohibition Order relates to articles imported for the purposes of trade, and since the respondent was not importing the carpets for purposes of trade but for his own personal use, he was not caught by any prohibition in the 1978 Order.
Learned counsel for both the appellant and the respondent referred us, as they had done in the Court of Appeal, to a number of English decisions to buttress the various points urged upon us. Except, perhaps, to reinforce my view of the word “fraudulent” used in the first count of the charge, none of these decisions applies to Nigeria. The law here is quite different. I shall deal in more detail with the difference later in this judgment.
However, before dealing with the various points canvassed in this appeal, I will refer in detail to, and construe, the applicable provisions of the Act and the Order made thereunder.
It is provided in Section 22 of the Customs and Excise Management Act, 1958 (No.55 of 1958), (hereinafter referred to as the Act, as adapted), which was applicable at the time of the alleged offence, as follows:-
“The Commissioner may, by Order –
(a) Prohibit the importation of any specified goods;
(b) prohibit the importation of all goods or any specified goods except as provided in the Order;
(c) subject to any specified exceptions, prohibit the importation of all goods except with the general or special permission in writing of a specified authority or authorities.”
Pursuant to the above provisions, the Federal Commissioner of Finance on 1st April, 1978, made the Import Prohibition Order, 1978, (L.N. 16 of 1978), Section 1 subsection (1) of which reads –
“1(1) The importation of the goods specified in Parts I and II of Schedule 1 of this Order is absolutely prohibited.”
(The underlining is mine.)
Part II of Schedule 1 and Item 51 thereof read –
“Part II
Absolute Prohibition – (Trade)
……………………………………………………….
“51. Carpets, carpetting and rugs (Tariff Nos. 58.01 – 58.02).”
In considering the scope of the prohibition Order, it seems to me that the prohibition of the importation of carpets into Nigeria, having regard to the clear provisions of Section 1 subsection (1) of the Prohibition Order is absolute. It does not allow for any other interpretation notwithstanding the use of the word (Trade) after the heading entitled “Absolute Prohibition” in Part II of the First Schedule under which carpets are listed as Item 51. In the course of his argument before us, learned counsel for the respondent tried to make heavy weather of the use of this word “Trade”. Suffice it to say that the use of the word cannot, and does not, reduce the impact of effect of the mandatory provisions of Section 1 subsection (1) of the Order. This word, to my mind, and indeed, the other words “Other than Trade” added in brackets after the words “Absolute Prohibition” in Part I of the same First Schedule to the Order, are superfluous. There is, it must be emphasised, no presumption against superfluity of expression, whether in statute or in any other statutory instruments which would amount to a rule of interpretation controlling what might, otherwise, be their proper interpretation. In the con of the Import Prohibition Order, 1978, therefore, the words “Absolute Prohibition” can only mean, and do mean, that the importation of goods, which clearly includes carpets, listed in the First Schedule are absolutely prohibited.
With respect to prohibited goods it is provided in Section 166 subsection (2) of the Act, inter alia, as follows:-
“(2) Where in any proceedings relating to customs or excise any question arises………….as to whether or not –
………………………………….
(g) any goods are or were goods prohibited to be imported, exported or carried coastwise, then, where those proceedings are brought by or against………… the Board………. the burden of proof shall lie upon the other party to the proceedings.”
(The underlining is mine.)
“Board” is defined in Section 2 of the Act as meaning “the Board of Customs and Excise” established under the Act.
Finally, and this provision is crucial to this appeal, it is provided in Section 168 of the Act as follows:-
“168. In any prosecution for an offence under the customs or excise laws it shall not be necessary to prove knowledge or intent, but where the prosecution is in respect of any offence of doing any thing 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.” (The underlining is mine.)
I should like to point out, at this juncture, that, while the provisions of Section 166 subsection (2) (g), which relate to proceedings generally, whether civil or criminal, are similar to the provisions of Section 290(2) of the Customs and Excise Act, 1952 of England (as amended or re-enacted from time to time), those of Section 168 which apply only to criminal prosecutions, are unique and peculiar to Nigeria. There are no similar provisions in the English statute. That being the case, all the English decisions cited before us as to the burden of proving knowledge or specified intent are irrelevant and do not apply to the situation which the law in Nigeria is intended to cover and the mischief which it is intended to prevent.
With respect to these unique provisions of Section 168 of the Act, it is my view, and I so hold, that in a criminal prosecution under any of the provisions of the Act, such as the case in hand, once the prosecution has proved that the carpets in question were imported by the respondent into the country, the law presumes in favour of the prosecution that:-
(a) as alleged in the two counts, the importation of the carpets is absolutely prohibited (see Section 166(2) (g) of the Act);
(b) in respect of an offence punishable under Section 145 (b) of the Act, the respondent was knowingly concerned in a fraudulent evasion of the Import Prohibition Order; and
(c) in respect of an offence under Section 44(1) (b) thereof, the respondent intended to evade the prohibition imposed on the importation of carpets and was consequently concerned in the importation of the thirteen bundles of carpets valued at N7,500.00k.
It is for the respondent to rebut these presumptions. The Federal Court of Appeal was, therefore, clearly in error in placing undue reliance on the English decisions and holding, therefore, that the onus, in such circumstances, is always on the prosecution to prove fraudulent knowledge or intent.
Under our own Customs and Excise Management Act as it stands, it is the accused who has to satisfy the court that the importation of the prohibited goods are without any such knowledge or intent. In support of this view, I refer to the decision of this court in Ebiri and Anor. v. Board of Customs and Excise (1967) NMLR 35. Although the case dealt with the fraudulent evasion of payment of customs duty, the ratio decidendi of the court’s decision, vis-a-vis the interpretation of Section 168 of the Act, applies with equal force to the case in hand. In considering the scope of Sections 166(2) and 168 of the Act, Brett, JSC., delivering the judgment of the court, found at page 39 as follows:-
“Section 166(2) (a) and (b) read –
‘166(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 duty 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.
and Section 168 reads –
‘168. In any prosection for an offence under the customs or excise laws it shall not be necessary to prove knowledge or intent, but where the prosecution is in respect of an offence of doing any thing, 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.
The result is that if a customs officer finds a person anywhere in Nigeria in possession of the 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.”
(The underlining is mine.)
Therefore, to hold, as the learned President of the Federal Court of Appeal (with the concurrence of the other two Justices) has held, that offences created under the Act –
“is not for the mere importation but more on the intent to evade”
is, with respect, clearly erroneous and does undue violence to the clear and unambiguous language of Sections 166 and 168 of the Act.
As for the word “fraudulent” used in phrase “knowingly concerned in a fraudulent evasion of the prohibition,” it must be pointed out that there is nothing in the Act to suggest that customs officers need be deceived or defrauded in order to establish the guilt of any person charged with an offence under Section 145(b) of the Act. Indeed, what has to be “fraudulent” is not the behaviour of the accused towards a customs officer, but the evasion or attempt at evasion of the prohibition. It will, therefore, be inappropriate to import narrow definitions of the word “fraudulent” from the branches of he law dealing with fraud practised upon other persons. For this reason, I subscribe to the view that the word “fraudulent” used in Section 145(b) of the Act has the effect that, in prosecutions under that section, the prosecution will be presumed to have proved (without calling evidence on this ingredient of the offence because of the presumption in Sections 166(2) and 168 of the Act) fraudulent conduct in the sense of dishonest conduct deliberately intended to evade the prohibition with respect to the goods concerned. There is no necessity to presume acts of deceit practised on a customs officer in his presence. (See Attorney-General’s Reference (1982) 2 WLR 873 at pages 881-882 (C.A.).
The next question to be considered is this. Did the respondent discharge this onus in the case in hand The evidence, which the learned Chief Judge accepted and to which I have referred earlier in this judgment showed that –
(a) when the respondent was informed on the tarmac by the customs officers that the importation of carpets into Nigeria was prohibited, he did not say that he had no knowledge of such prohibition as one would have expected of a much travelled person as the respondent;
(b) when he made his written statement (Ex. D) to the police after his arrest, he still did not say that he did not know that the importation of carpets was prohibited. All that he stressed was that he wanted to know what duty he should pay on the thirteen bundles of carpets;
(c) even, in court, when the Chief Judge asked him a direct question on 23rd July, 1980 (almost two years after his apprehension at the Airport) about whether he knew that certain goods were prohibited from importation into Nigeria, the respondent replied that he did not know and that he travelled quite a lot only “after a long hesitation.”
In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or concerned in the said evasion. Having made his findings, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye & anor. v. Eyiyola & ors. (1968) NMLR 92 at page 95, this court held that –
“Where a court of trial unquestionably evaluates the evidence and appraised the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court.”
Again, in Fabumiyi & Anor. v. Obaje & Anor. (1968) NMLR 242 at page 247, this court dealt with the evaluation of evidence by an appeal court in more detail as follows:-
“A court of appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of fact or the inferences drawn from them may be questioned in certain circumstances. (See Benmax v. Austen Motor Co. Ltd. (1955) A.C. 370; Akintola v. Fatoyinbo Oluwo & Ors. (1962) All NLR 224; and Lawal Braimoh Fatoyinbo & Ors v. Abike Williams (1965) 1 FSC 67.) The result of the authorities is simply this, that where the facts found by the court of trial are wrongly applied to the circumstances of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a court of appeal is in as much a good position to deal with the facts and findings as the court of trial.”
It only remains for me to add that, having regard to my own observation on the evidence made earlier, all the reasons which could justify re-evaluation of the evidence by an appeal court are not present in the case in hand.
In 1974, this court again considered the limitations placed on a court of appeal in re-evaluating evidence accepted by a trial court in Balogun & Ors. v. Agboola (1974) 1 All NLR (Part II) page 66. We observed at page 73 of our judgment in that case as follows:-
“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.”
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his “performance” on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when “dealing only with the cold sullen print of the records before them” decided to set aside the Chief Judge’s findings of fact. Like this court in Balogun & Ors. v. Agboola (supra), I “have no hesitation in restoring the findings of fact of the learned trial Judge.”
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance the evidence adduced by the prosecution, which the Chief Judge accepted, against, It must be remembered that the defence of the respondent was, for good and sufficient reasons if I may say so, totally rejected by the learned Chief Judge.
In case the significance is over-looked, all the grounds of appeal filed and argued before the Federal Court of Appeal are grounds of law. Even the misdirections complained of in some of the grounds of appeal relate either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Mohammed Bello, JSC., has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this court which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.
For all these reasons, the judgment of the Federal Court of Appeal cannot be allowed to stand. I, therefore, allow the appeal of the Board of Customs and Excise (appellant) against the judgment of the Federal Court of Appeal setting aside the convictions and sentences passed on the respondent in the Federal High Court. I also set aside the order of the Court of Appeal by which the respondent was acquitted and discharged.
I, accordingly, restore the convictions and sentences passed on the respondent on 18th December, 1980, in respect of the two counts on which he was tried in the Federal High Court. The concurrent sentences of twelve months imprisonment passed on him on each count are, however, to include any part of the sentences which he has already served. In effect, he should go to prison only for the remainder of the unexpired term.
The order made by the learned Chief Judge for the destruction of the carpets is slightly varied to read that the thirteen bundles of carpets (Exhibits B to B12) shall be forfeited and are hereby forfeited; thereafter, they shall be destroyed pursuant to the provisions of Section 1 of the Customs and Excise (Special Penal and other Provisions) Act, 1977 (No. 38 of 1977).
Other Citation: SC.39/1982
