The Comptroller Of Customs V. K. Chellaram & Anor (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Cast:inns—Prohibited Articles—Regulated Textiles—Customs Ordinance (Cap. 132) (Gold Coast) sections 27 (1) (c) (iii), 27 (2), 27 (3), 118 (2)—Importation of Textiles (Quotas) Ordinance (Cap. 136) (Gold Coast), section 7 (1)—Proclama(ions No. 10 of 1938 and No. 7 of 1939 (Gold Coast).Interpretation—Legislation—Legislation by reference to another Ordinance—Ordinance referred to suspended—Subsidiary Legislation.

Facts

In 1938-39 Mears Chellaram imported certain textiles, alleged to be ” regulated textiles ” by virtue of Proclamations No. 10 of 1938 and No. 7 of 1939 made under the Importation of Textiles (Quotas) Ordinance (Cap. 136), without complying with the provisions of section 7 (1) of that Ordinance. The operation of Cap. 136 and subsidiary legislation was suspended as from 1st January, 1940, and subsequently the Comptroller of Customs (Appellant) sued respondents in the District Magistrate’s Court for the.forfeiture and/or condemnation of the textiles under sections 27 (2) and/or 118 (2) of the Customs Ordinance (Cap. 132) as prohibited articles by virtue of section 27 (1) (c) (iii) of that Ordinance, which prohibited the importation, inter alio, of such ” regulated textiles ” without compliance with section 7 (1) of Cap. 136. As regards certain of the articles the Magistrate decided in favour of the appellant, on the basis that the Proclamations were of full legal effect. The respondents appealed to the Divisional Court and from the decision of that Court this appeal was brought.

On behalf of the respondents it was argued-

^–(i) That no action could be maintained in view of the suspension of Cap. 136.

2. That section 27 (1) (c) (iii) of Cap. 132 was subsidiary legislation to Cap. 136, and had been expressly suspended therewith.
3. That section 27 (1) kc) (iii) of Cap. 132 had been impliedly suspended with the suspension of Cap. 136.

During the appeal it was agreed that the second paragraphs of the Proclamations were ultra vires.

Held

(i) The action could be maintained. It was not brought under Cap. 136, but under Cap. 132, and it was permissible to look to Cap. 136. though suspended, to ascertain what were prohibited articles under Cap. 132 at the material date, which was the date of importation, not the date of the writ.

2. There was no implied suspension of section 27 (1) (c) (iii), for no inconsistency or repugnancy was involved by its remaining in force while Cap. 136 was suspended.
3. Since it was impossible to say that the Magistrate would have come to the same decision if he had appreciated that the second paragraphs of the Proclamations were ultra vires, the case must be remitted to him for hearing de novo.