NWOSU V. BOARD OF CUSTOMS & EXCISE

• Pages: 383-406

NWOSU V. BOARD OF CUSTOMS & EXCISE

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383

NWOSU V. BOARD OF CUSTOMS & EXCISE

SUNDAY NWOSU

V

BOARD OF CUSTOMS & EXCISE

SUPREME COURT OF NIGERIA

NNAMANI,

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J.S.C.

UWAIS,

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J.S.C.

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KARIBI-WHYTE,

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J.S.C.

AGBAJE,

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J.S.C.

CRAIG,

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J.S.C.

16th December, 1988

APPELLANT

RESPONDENT

SUIT NO. SC 17/1988

Customs and Excise - Fruadulent Evasion of Duty - bizportation of goods - Proof - Sections

145(a) & (b) Customs and Excise Management Act.

Appeals - Findings of fact - Duty of appellate court.

Criminal Law and Procedure - Fmadulent evasion of customs duty - Elements of offence

- Proof - Judgment - Delivery - Absence of accused at delivciy - Effect.

Evidence - Burden of Proof - Customs offences.

ISSUES:

1.

What must the prosecution prove on a charge of Fraudulent Evasion of Duty,

under section 145 of the Customs and Excise Management Act to ground a

conviction.

2.

On whom lies the onus of proof of fraudulent evasion of duty.

3.

When does the question as to whether customs duty is payable, and the accused

has knowingly not paid it, arise.

4.

Whether it is necessary for the prosecution to adduce evidence in proof of

charges under the Customs and Excise Management Act.

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5. Whether it is necessary for an accused to be present during the delivery of a

judgment on appeal.

6. Whether an appellate court can reverse the findings of fact of a trial court.

FACTS:

The appellant was charged on a two count charge of Fraudulent evasion of cus-

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toms duty with intent to defraud the Federal Government, under section 145 of the

Customs and Excise Management Act. He pleaded not guilty. The case for the pros-

ecution was that the appellant was stopped by Customs Officers at Igbeti, in Oyo

State. He was asked what he carried and he told them he was carrying army blan-

kets. A search was conducted, which revealed 4 bales of coat lining. On being ques-

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tioned by the officers as to the source, the appellant had told them that he bought

them from Benin Republic. He was accompanied by two soldiers, who claimed that

they were sent to accompany the appellant by their supervising officer, who hap-

pened to be the appellants brother. The supervising officer was however not located,

and the soldiers were not charged.

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NIGERIAN SUPREME COURT CASES [19881 3 N.S.C.C.

The appellant on the other hand, testified on oath that he bought the goods in

the open market at Shaki, from one Baba Bose. Two attempts were made to locate

the said Baba Bose, but both failed. After considering the evidence, the learned trial

Judge found in favour of the appellant, holding that there was no evidence to prove

that the bales of lining were manufactured outside Nigeria, and thus subject to cus-

toms duty. Proof of importation is an essential ingredient in the offence charged.

and lack of this was fatal to the prosecution's case. During the course of his judg-

ment, the learned trial Judge stated that he had observed the demeanour of the ap-

pellant, and was convinced that he was telling the truth.

Dissatisfied with this decision, the respondent appealed to the Court of Appeal,

contending

inter alia

that the trial court should not have believed the evidence of the

appellant, because he did not call any evidence to prove that he bought the goods

at Shaki market. The Court of Appeal agreed with these arguments, and reversed

the findings of fact made by the learned trial Judge, holding that had the learned trial

Judge considered the facts dispassionately, coupled with the appellant's inability to

produce evidence that he paid customs duty on the bales of lining. he would have

arrived at a different conclusion. The appellant was ordered to pay N33.892.80k or

serve 2 years imprisonment with hard labour.

The appellant, aggrieved by this decision, appealed to the Supreme Court, con-

tending

inter alia,

that the Court of Appeal erred in law, in reversing the trial court

decision, which was based on credibility of witnesses and their demeanour.

HELD:

1.

On a charge of fraudulent evasion of Duty, as contained in section 145 of the

Customs and Excise Management Act, the prosecution is required to prove (a)

that (1) the accused imported the goods, (2) the goods were not manufactured

in Nigeria, and (3) the goods are chargeable with customs duty. Under (b) the

prosecution has to prove that (1) the accused was carrying the goods alleged,

(ii) the goods were not manufactured in Nigeria, and (iii) the goods are

chargeable with customs duty. If the prosecution cannot prove these, then an

action fcr fraudulent evasion of duty cannot he sustained. The prosecution in

this case, failed to prove that the goods were imported. or that they are

chargeable with customs duty.

2.

With regard to charges of fraudulent evasion of duty, the law is the same as in

any criminal case. The offence must be proved beyond reasonable doubt.

There is however a proviso in section 166(2) and 168 of the Customs and Excise

Management Act, which shifts the onus of proof of certain matters to the

defendant. Thus where a question arises as to whether or not any duty has been

paid or served in respect of any goods, or any duty alleged to be payable is

correctly assessed, the onus shifts to the defendant. Likewise, 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.

Thus in respect of both charges in this case the ty

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rden was on the accused to

prove lack of knowledge of the fraudulent evasion, or that he did not evade

payment of duty knowingly. and with intent to defraud the Government.

3.

The question whether customs duty is payable and has knowingly not been paid

by the appellant, thereby imputing fraud, is predicated on the finding that the

goods are imported into the country and are of a foreign manufacturer and are

dutiable. The Court of Appeal was therefore wrong to hold that the onus was

on the appellant to produce evidence of payment of customs duty when there

was no finding that the goods were liable to payment of customs duty.

4.

It should not be presumed that under sections 162(2) and 168 of the Customs

and Excise Management Act, the prosecution is relieved of the general burden

of adducing evidence in proof of it's charges. The prosecution is duty bound to