BOARD OF CUSTOMS & EXCISE V. BARAU
| Pages | 358-399 |
358
NIGERIAN SUPREME COURT CASES
[1982] N.S.C.C.
BOARD OF CUSTOMS & EXCISE V. BARAU
5
BOARD OF CUSTOMS & EXCISE
APPELLANT
V
ALHAJI IBRAHIM BARAU
RESPONDENT
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SUIT NO. SC 39/1982
SUPREME COURT OF NIGERIA
FATAI-WILLIAMS,
IRIKEFE,
BELLO,
IDIGBE,
ESO,
ANIAGOLU,
NNAMANI,
29th October, 1982
C.J.F.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
15
20
Legislation - Customs offences under the Custom and Excise Management Act,
1958.
Appeals (Criminal) - Being knowingly concerned in fraudulent evasion of import
25
prohibition; importing with intent to evade import prohibition - Onus of proof
- on defendant to disprove knowledge and intent, not on prosecution to prove
them - Standard of proof
Appeals - Supreme Court - Findings of trial court wrongly reviewed by Federal
30
Court of appeal and conviction of customs offences set aside.
ISSUES:
1.
Whether in a trial for an offence under the Customs & Excise Management Act,
1958 the onus is on the prosecution to prove knowledge, or recklessness or
35
intent or on the defendant to disprove such knowledge, etc (what is the onus
on the prosecution in trials of offences under the Act)?
2.
Whether the word 'fraudulent' used in section 145(b) of the Customs and Excise
Act carries the same definition as when used in branches of the law dealing
with fraud practised on other persons.
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3.
Whether the prosecution can prove fraud under section 145(b) of the Act without
calling evidence of it.
4.
Whether the prohibition of the information of carpets into Nigeria under the
Import Prohibition Order, 1978 (L.N. 16 of 1978) is an absolute prohibition
(whether there in a presumption against superfluity of expression in statute
45
which can control their proper interpretation).
5.
Whether the Court of Appeal can reverse the finding of fact of a trial Judge
which finding is based on the credibility of a witness.
6.
Whether 'ignorance of the law' is a defence to a charge of being knowingly
concerned in a fraudulent erosion of a prohibition under section 145(b) of the
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Customs & Excise Act of 1958. (This issue arises in view of the dissenting
judgment of Bello, J.S.C. as he then was).
BOARD OF CUSTOMS & EXCISE V. BARAU
359
FACTS:
The respondent came into country with 13 bundles of carpets at a time when
there was a prohibition order on the importation of carpets. The carpets were, ac-
cording to the respondent for furnishing his apartment. On arrival he approach
5
some customs offices ostensibly to find out how much duty he had to pay on the
carpets. The carpets were at the time still lying on the tarmac. The customs offi-
cers confiscated the carpets and charged the respondent to Court under section
145(b) of the Customs and Excise Management Act for contravention of the pro-
hibition order. At the trial, when asked by the court if he knew that certain goods
10
were prohibited from being imported into the country he answered after a long
hesitation that he did not know and that he travelled quite a lot. When asked by his
defence counsel whether he knew before the 4th of August (the date of his arrival)
that the importation of carpets was prohibited he replied this time without hesita-
tion that he did not know. After reviewing all the evidence before him, the trial
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Judge, in rejecting the respondents defence of ignorance of the law, held that the
respondent told a deliberate he when he told the court that he did not know that
carpets were prohibited from importation. He held further that it was laughable
that the respondent, a businessman and a senator could come to court to testify
on oath that he did not know that carpets were under absolute prohibition and that
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his action in calling the customs officer out the tarmac where the bundles were off
loaded from the aircraft so that they could tell him what duty to pay was designed
to fraudulently evade the import duty. He convicted and sentenced him accord-
ingly.
On appeal to the Federal Court of Appeal it was contended on the respondent
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behalf that the onus of proof should be on the prosecution to prove guilty knowl-
edge and that they had not discharged that onus. The Court of Appeal agreed
and reversed the decision of the trial Judge holding that the finding of facts of the
trial Judge were unreasonable.
The prosecution appealed to the Supreme Court, arguing that the Appeal Court
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was wrong to have upheld the defence of ignorance of the law, that the Act pro-
vided that the onus of proof was. on the defendant to disprove knowledge, intent
or recklessness in importing the carpets.
HELD:
1.
In view of the unique provisions of section 168 of the Act, and the presumption
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therein in favour of the prosecution in a criminal prosecution under any of the
provisions of the Act, such as i he case in hand, once the prosecution has proved
that the carpets in question were imported by the respondent into the country,
the law presumes that the importation of the carpets is prohibited, that the
respondent was knowingly concerned in a fraudulent evasion of the prohibition
40
order and that the respondent intended to evade the prohibition. It is for the
respondent to rebut these presumption. The Court of Appeal was therefore
clearly in error in placing reliance on English authorities and holding, therefore,
that the onus, in such circumstances, is always on the prosecution to prove
fraudulent knowledge or intent. Under the Act as it stands, it is the accused
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who has to satisfy the court that the importation of the prohibited goods are
without any such knowledge or intent
Ebiri & Anor. v. B.C.E.
(1967) N.M.L.R.
35.
2.
There is nothing in the Act to suggest that customs officers need to be deceived
or. defrauded in order to establish the guilt of any person charged with an
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offence under section 145(b) of the Act. Indeed, what is '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 the law dealing with
fraud practised upon other persons.
360
NIGERIAN SUPREME COURT CASES
[1982] N.S.C.C.
3.
The word 'fraudulent' used in section 145(b) of the Act has the effect that in
prosecution 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 section 166(2) and 168 of the Act) fraudulent conduct in the
sense of dishonest conduct deliberately intended to evade the prohibition with
5
respect to the goods concerned. Since the learned trial Judge disbelieved the
respondent testimony he had not rebutted this presumption of fraudulent
conduct.
4.
Having regard to the clear provisions of section
1
subsection (1) of the
Prohibition Order, the prohibition of the importation of carpets into Nigeria is
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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. The words "Other than
Trade" added in brackets after the words "Absolute Prohibition" are superfluous.
There is, it must be emphasised, no presumption against superfluity of
15
expression whether in statutes or in any other statutory instruments which might
otherwise, be their proper interpretation. In the context of the prohibition order
the words "Absolute Prohibition' can only mean that the importation of carpets,
amongst other goods listed are absolutely prohibited.
5.
The trial Judge having made his findings, correctly in the opinion of this court,
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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
25
certainly in error in so doing.
BELLO, J.S.C.
Dissenting)
6.
By virtue of the provision if section 2(4) of the Criminal Code Act, Cap 42 Laws
of the Federation, 1958, the provisions of section 22 of the Code apply to
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offence under the Customs & Excise Management Act 1958 and the Import
Prohibition Order, 1978. How the most essential element of the offence under
section 145(b) of the Act is being "knowingly concerned in a fraudulent evasion
of the Import Prohibition Order 1958". The element of the offence under the
section appears to mean that the offender must have knowledge of the
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Prohibition Order and must also have knowledge that its fraudulent evasion is
taking place consequently knowledge of the law is expressly declared by
section 145(b) of the Customs & Excise Act of 1958 to be an element of the
offence under the section. That being the case, ignorance of the Prohibition
Order in my opinion is a defence for an offence under the section. This ground
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of appeal therefore fails. Also, that since there was no appeal on fact, effect
ought, under section 213 of Constitution to be given to the decision of the Court
of Appeal on the question of facts even if one thinks that court was wrong.
CASES REFERRED TO IN JUDGMENT:
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1
Oladehin v. Continental Textiles Mills Ltd.
(1978) 2 S.C. 23.
2.
Ebiri & anor v. Board of Customs & Excise
(1967) N.M.L.R. 35.
3.
Attorney-General's Reference
(1982) 2 W.L.R. 873, 881-882 (CA).
4.
Akinloye & anor v. Eyiyola & ors
(1968) N.M.L.R. 92, 95.
5.
Fabumiyi & anor v. Obaje & anor
(1968) N.M.L.R. 242 at 247.
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6.
Benmax v. Austen Motor
Co.
Ltd
7.
Akintola v. Fatoyinbo Oluwo & ors
(1962) All N.L.R. 224.
8.
Lawal Braimoh Fatoyinbo & Ors. v. Abike Williams
(1965) 1 F.S.C. 67.
9.
Balogun & Ors. v. Agboola
(1974) 1 All N.L.R. (Part II) 66.
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