Stephen Ebiri And Another V Board Of Customs And Excis (1967)
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BRETT,J.S.C.
The two appellants were charged in the Magistrate’s Court of the Uyo Magisterial District with an offence contrary to section 145 (a) of the Customs and Excise Management Act, 1958 in relation to 984 cigarette lighters which were chargeable with the duty of £246. The Magistrate convicted them and imposed fines of E25 and their appeal to the High Court was dismissed. They have now appealed to this Court.
The first point argued was that it had not been shown affirmatively that the continuation of the proceedings had been sanctioned by the Board of Customs and Excise and that section 157(2) of the Customs and Excise Management Act precluded the court from proceeding to hear the charge without the consent of the persons charged, which had admittedly not been given. In the typed record of proceedings the Board of Customs and Excise Is shown as the complainant but it is not shown who lodged the charge. Following the course adopted by this court in the unreported case Ifeacho v. Board of Customs and Excise, S.C. 634/65, judgment delivered 9th June, 1966, we called for the original charge sheet and this turned out to be signed by an officer of the Department of Customs and Excise over the impress of a rubber stamp with the name of the Department.
We hold that that is sufficient prima facie evidence that the proceeding were Initiated by the Board and that, as was held in Ifeacho’s case, it was unnecessary for the Board to issue a further document sanctioning the continuation of the proceedings. This ground of appeal therefore fails.
It was then submitted that since the maximum fine to which the appellants were liable was six times the value of the goods concerned, or a sum exceeding £200, the offence was an indictable one and therefore not triable by the Magistrate with-out the consent of the accused persons under section 304 of the Criminal Procedure Act. The definition of indictable offence in section 2 of that Act originally read as follows-
“ ‘Indictable offence’ means any offence:-
(a) which on conviction may be punished by a term of imprisonment exceeding two years, or
(b) which on conviction may be punished by imposition of a fine exceeding two hundred pounds, or
(c) which is not declared by the written law creating the offence, to be punishable on summary conviction;
In the unreported case of Ejoh v. Police F.S.C. 417/62, judgment delivered 26th June, 1963, this court held that the second “or” in the definition was a mere mistake for “and” and this interpretation has now received statutory confirmation from section 2 of the Criminal Procedure (Amendment) Decree, 1966 which applies throughout Nigeria. That section reads-
“2. For the removal of doubt as to the meaning of the expression “indictable offence” In the Criminal Procedure Act, the definition of that expression contained in section 2(1) of that Act, as it applies in any part of Nigeria, shall be amended so as to read as follows:-
‘ ”Indictable offence” means any offence-
(a) which on conviction may be punished by a term of imprisonment exceeding two years; or
(b) which on conviction may be punished by imposition of a fine exceeding two hundred pounds, not being an offence declared by the law creating k to be punishable on summary conviction;’
but It is hereby declared that the meaning of that expression in that Act has always been as stated in the amended definition set out above.”
The other material provision is section 161(1) of the Customs and Excise Management Act which reads-
“161(1) Any offence under the customs or excise laws-
(a) Where it is punishable with imprisonment for a term of two years or more, with or without a fine, shall be punishable either on summary conviction or on conviction on indictment;
(b) in any other case, shall be punishable on summary conviction.”
The offences excluded from the definition of indictable offence are not restricted to those which are declared to be punishable only on summary conviction and where, as in this case, an offence is declared to be punishable either on summary conviction or on conviction on indictment it is not an indictable offence for the purpose of section 304 of the Criminal Procedure Act. The Magistrate therefore had jurisdiction to try the case summarily without the consent of the appellants and the trial was not, as has been submitted, a nullity.
Dealing with the facts counsel for the appellants submitted that the customs officials who seized the lighters acted prematurely and that the prosecution had failed to prove that the appellants had had the opportunity of declaring the lighters or had formed any intention to defraud the Federal Government of the duty payable on them. The principal witness for the prosecution was R. C. Gibson, a Senior Preventive Superintendent. In his evidence he said-
“On the 15th December, 1964 I came to Oron and was waiting at the jetty and later boarded the “Erico” when it arrived. I boarded the said passenger launch from the Cameroons with three customs officers. I went into the captain’s cabin and met the captain and the first defendant. The second defendant is the captain of the launch. I found them with a brown bag and were examining the con-tents. The bag contained cigarette lighters of French manufacture. I then asked the two defendants where they bought the cigarette lighters. They refused to answer. I also asked them for the receipt of purchase but they could not produce any. I asked them if they had paid any customs duty on them. They said no. I then searched the cabin and in the captain’s box I found a tin containing more cigarette lighters of the same origin. I then took the two defendants together with the lighters to the customs house Oron for statements.”
Under cross-examination he said:-
“I know that the launch called at Ikang before it got to Oron. Ikang is a Nigerian port. There is a customs post at Ikang:”
Another customs officer named Bassey Ikpeme testified that the duty payable on the lighters was £246. He was not cross- examined.
At the customs house, Oron the first appellant made a statement, exhibit B, in the following terms-
“I brought cigarettes from Kumba and when I reached at Ikang I opened It to customs officers to see and after he saw it he did not say anything then I took it back. When I reached to Oron Custom see it and told me to open and I opened it and they took me to custom station that is all I know about it.”
and fifteen minutes later he made another statement in these terms, exhibit B1-
“I bought cigarette lighter at Abe for sale and I send it to Ikang to sell for me, and after it was not pass market so I go and collect it back. Returning back from Ikang I was caught by custom officer, and I was taken to their station at Oron.”
The second appellant’s statement was in these terms-
“I am the captain of M/L “Erico” and carried the passengers from Oron to Lobe and from Lobe to Oron. I am not the clerk on board the launch. On each trip from Oron to Lobe and from Lobe to Oron we always call at Ikang. When we arrived at Ikang customs officers examined the boat. The custom officers at Ikang asked us to go and that there was no trouble.”
In his evidence the first defendant said-
“I am a trader residing at Onitsha. The lighters belong to me, i.e. exhibits D and E. Exhibits B and B1 are my statements. They form part of my defence. I bought the cigarette at the Aba main market.” Cross-examined by state counsel:
“I have no receipts for the lighters. I was forced to make exhibit B by customs officers. I took the cigarette lighters to Ikang in order to sell them. I did not go to the Cameroons.”
The second defendant said:-
“I reside at No. 58 Oron Street, Oron. I am the captain on board the “Erico” launch plying between the Cameroons and Nigeria. Exhibit C is my statement. I adopt it as part of my defence. I have a purser and clerk on board. There were about 400 passengers on board on the 15th December, 1964.” Cross-examined by state counsel:
“I did not see any cigarette lighters on board the launch. The first defendant did not come into my cabin.”
We think the submission made on behalf of the appellants assumes that a heavier burden rests on the prosecution than is justified by the terms of the Customs and Excise Management Act. Section 145 of the Act, under which the appellants were convicted reads as follows:-
“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 there-on 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.”
Section 166(2) (a) and (b) read-
“166 (2) Wherein 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 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.”
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.
It may sometimes happen that when a vessel or aircraft carrying passengers calls first at one Nigerian port or airport and then at another, the passengers who are not disembarking at the first port are not called upon to declare the contents of their baggage until they arrive at the port where they intend to disembark and in such a case a passenger not disembarking at the first port of call within Nigeria would have no difficulty in disproving any guilty intent in his not declaring any dutiable articles at the first port. What seems clear is that if a prosecution were to be brought in such circumstances the onus of disproving a guilty intent would rest on the passenger.
We hold, therefore, that it was unnecessary for the prosecution in this case to prove what had taken place when the launch called at Ikang and that once the prosecution had shown that the defendants were concerned in carrying the lighters within Nigeria it was for the appellants to prove that duty had been paid or that they were carrying the lighters without an intent to defraud.
We uphold the Magistrate’s finding that they failed to do so. It is true that the Magistrate apparently failed to observe that the first statement made by the first appellant (in which he admitted bringing goods from Kumba) referred to cigarettes and not to cigarette lighters but we do not consider that this failure vitiates his general finding.
As regards the second appellant he went so far as to deny that he saw any cigarette lighters on board or that the first appellant had ever been in his cabin and these denials, which the magistrate disbelieved, are directly contrary to the evidence of Mr. Gibson which the Magistrate accepted. Counsel for the appellants did not submit that if the Magistrate directed himself correctly as to the burden of proof his conclusions of fact were unreasonable.
We are satisfied that the evidence amply justisfied the magistrate’s finding and that neither of the appellants discharged the onus of proving on the balance of probabilities that he had no intent to defraud.
The appeal of each of the defendants is dismissed.
Other Citation: (1967) LCN/1540(SC)
