Alfred Ifeacho Vs Board Of Custom And Excise (1966)
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BAIRAMIAN, J.S.C.
The appellant, who elected to be tried summarily, was tried by Magistrate Ojomo on three counts laid under the Customs and Excise Management Act of 1958, and was convicted on them all. On appeal to the High Court of Lagos, Taylor C.J., allowed his appeal on count 2 but dismissed it on counts I and 3 on 11th October, 1965 (LD/35 CA/65). And from that dismissal he has appealed to the Supreme Court.
Count 1 alleged that on 25 March, 1965 at Apapa the defendant, a disembarking passenger from the M. V. Aureol, failed to declare at the Customs Baggage Hall that he had imported as baggage certain dutiable goods, it was laid under section 66(3).
Count 3 alleged that at Apapa Wharf, in Berth 6, he knowingly and with intent to defraud the Federal Government of the customs duty payable on certain goods chargeable with duty which had not been paid was concerned in carrying them in a car; it was laid under s. 145(a).
The objections made are objections of law. The first, based on section 157, subsection (2), is that the magistrate had no jurisdiction to hear the charge because neither of the requirements of the subsection was satisfied: (a) the defendant did not specifically consent to be tried for the customs offences charged; or (b) the Board did not sanction the continuation of the proceedings, but this sanction is, according to the argument, required even where the proceedings have been instituted by the Board, as indicated by the concluding words of subsection (4); and, moreover, (c) there was no evidence that the proceedings were instituted by the Board.
It is unfortunate that in the typed copies of the record the signature below the charge was not copied. We have called for the original charge-sheet, which has below the counts a manuscript signature and below that these words in typescript –“J. W. Amoni By the order of the Board of Customs and Excise.” That satisfies the provision in section 166, subsection (1) (a) that-
“An averment in any process in proceedings under the customs or excise laws-
(a) that those proceedings were instituted by the order of the Board shall unless the contrary be proved be sufficient evidence of the matter in question.”
At the trial the defendant’s learned counsel raised no question on that matter.
We now pass to section 157; it reads as follows:
“157. (1) Where by or under any provision of the customs or excise laws a fine or imprisonment is prescribed for any offence such fine or imprisonment shall be enforceable by the ordinary procedure applicable in respect of criminal matters in the place in Nigeria where the proceedings are brought.
(2) A court shall not, except with the consent of the person charged, proceed to hear any charge in respect of an offence under any provision of the customs or excise laws unless the continuation of such proceedings is sanctioned by the Board.
(3) No proceedings shall be instituted except within seven years of the date of the commission of the offence.
(4) Nothing in subsection (2) shall prevent the institution of proceedings for an offence under the customs or excise laws by or in the name of the Attorney-General of the Federation in accordance with the provisions of the Constitution of Nigeria in any case in which he thinks it proper that proceedings should be so instituted, or the continuation of proceedings so instituted.”
Subsection (1) provides that proceedings for customs offences shall be governed by the procedure followed in other criminal matters in the appropriate area. In 1958 the Criminal Procedure Ordinance was in force everywhere, and its provisions have continued to be in force in the South until now. The North adopted a Criminal Procedure Code of its own on 30th September, 1960. We are concerned with a case in Lagos.
Under the Criminal Procedure Ordinance or Act any person can institute a criminal case; but most prosecutions are begun by the Police.
The Police might catch someone smuggling goods across the border at some place; they could lay a charge before a magistrate and have the smuggler remanded in custody, to prevent him from disappearing and to give themselves time to report the case to the customs authorities, for them to decide on what should be done. On the other hand the man caught and detained might wish to avoid delay and consent to be tried at once. Hence we have subsection (1) which makes it possible for any person to lay a charge, and subsection (2) which debars the court from proceeding to hear it except with the consent of the defendant or with the sanction of the Board. That is in harmony with the provision in s. 1 64(a) that-
“The Board may, at its discretion-
(a) stay or compound any proceedings for an offence or for the condemnation of any thing as forfeited under the customs or excise laws;”
This provision and the provision in s.157(2) have the effect (subject to what will be said hereafter) of giving the Board control over the prosecution of customs offences.
But that control does not extend to prosecutions by or in the name of the Attorney-General of the Republic in exercise of his powers under the Constitution. These are saved by subsection (4); the words “or the continuation of proceedings so instituted” were added at the end to make it clear that the sanction of the Board mentioned in subsection (2) did not apply to prosecutions by or in the name of that Attorney General.
When a prosecution is conducted in the name of the Attorney-General, he or one of his authorised officers can stop the case by entering a nolle; there is no need to tell the court that they desire the case to continue if they wish it to be heard.
When a prosecution is begun by the Police, the case is heard as a matter of course; but they may ask the court for leave to withdraw the charge. Equally we think that when a charge is laid by the Board of Customs and Excise there is no need for the Board to say that it wants the case to be heard; if the Board wishes to stop the case, it can stay the proceedings under s.164(a) of the Act. We do not think it makes good sense to say, (as has been argued for the appellant) that even where the Board institutes the proceedings the court cannot proceed to hear the charge unless the Board sanctions their continuation.
It sounds odd to speak of a person sanctioning his own act: sanctioning imports ratifying the act of another. Subsection (2) of s.157 was intended to modify the ordinary criminal procedure which was incorporated by subsection (1); read in that light and in light of its wording, subsection (2) means in our opinion that in proceedings instituted by another person the court cannot, except with the defendant’s consent, proceed to hear the charge unless the Board authorizes the continuation of the proceedings, and does not apply to proceedings instituted by order of the Board. The first objection fails, and the question whether the defendant consented to trial for the purposes of s.157(2) does not arise.
There is nothing more left in regard to count 3 of the charge.
It remains to consider a second objection in regard to count 1, which is laid under s.66(3). Section 66 reads as follows:
“66. (1) Any person who has entered or is about to leave Nigeria shall declare and produce to the proper officer at such places and in such manner as the Board may direct, all goods imported or to be exported by him, shall answer all questions put to him by the proper officer with respect to such goods, and shall not remove such goods from the place of examination without the permission of the proper officer.
(2) (irrelevant.)
(3) Any person who contravenes or fails to comply with the provisions of subsection (1) shall be liable to a fine of six times the value of the baggage or article in respect of which the offence is committed or two hundred pounds, whichever is the greater.”
Count 1 alleges that at Apapa the defendant, a disembarking passenger on the M. V. Aureol, “failed to declare at the Customs Baggage Hall” that he had imported as baggage the goods specified in the count. The argument is that there is no evidence that the baggage Hall had been prescribed by the Board as the place where a disembarking passenger should declare what goods he has imported. Subsection (1) speaks of “such places as the Board may direct”; the argument is that there ought to be a gazette notice of the Board’s direction in that behalf.
There was evidence given by customs officers that the Baggage Hall is the customs examination hall where goods are declared and where duties are payable. In fact the defendant went into it with his non-dutiable baggage in the morning, and when asked the stock questions-any cigarettes, any liquor, any presents?-he said No. He left behind on board the dutiable goods-cigarettes, etc.-he had had in his cabin, and came back for them towards 7 p.m.; and he was caught when trying to take them off in a taxi. He was an Inspector of Police, attached for a time to the quays, and hoped that about sunset there would be nobody about. He knew all about the baggage hall and a passenger’s duty to declare his baggage.
The argument is technical merely.
The argument assumes that the Board’s direction must be by notice in the gazette. Elsewhere in the Actsome actions of the Board are required to be by notice in the gazette, e.g., as in section 15; not so in section 66. A vessel coming from abroad must put in at one of the places designated in the Customs Ports Order, 1959 (and in amending orders).
We were not referred to any subsidiary legislation bearing on the point raised. We have looked at the volumes for 1958 onwards and found nothing; and as s.170 of the Act saves previous subsidiary legislation (the saving may not have been necessary and may have been made merely as a measure of greater caution) we have looked at Vol. 7 of the 1948 Laws and found at p. 381 a set of the Customs Regulations of 1945, of which the following appear to be relevant:
“132. Every person disembarking from any aircraft or ship which arrives in Nigeria and which is not alongside any jetty, quay or wharf shall proceed by the most direct route to the place appointed by the Comptroller for the landing of baggage or such other place as the proper officer may direct and there disembark and proceed to the place appointed by the Comptroller for the examination of baggage or such other place as the proper officer may direct and there remain until he receives the permission of the proper officer to leave such place.
133. Except as provided in regulation 132 every person disembarking from an aircraft or ship which arrives in Nigeria shall proceed forthwith to the place appointed as aforesaid for the examination of baggage or such other place as the proper officer may direct and there remain until he receives the permission of the proper officer to leave such place.”
We have not seen any later regulations revoking the above two regulations.
There has been a place appointed by the Comptroller for the landing of baggage and a place for the examination of baggage, and a person disembarking from a vessel must go to it. On the evidence the appointed place at Apapa is the Baggage Hall, and the defendant knew where it was.
The second objection must also fail.
The appeal has no merit and is dismissed.
Other Citation: (1966) LCN/1322(SC)
