3PLR – BOARD OF CUSTOMS & EXCISE V. ALHAJI IBRAHIM BARAU
BOARD OF CUSTOMS & EXCISE
V.
ALHAJI IBRAHIM BARAU
SUPREME COURT OF NIGERIA
29TH OCTOBER, 1982
SUIT NO. SC 39/1982
LN-e-LR/1982/14 (SC)
OTHER CITATIONS
(1982) 10 S. C. 48
BEFORE THEIR LORDSHIPS:
FATAI-WILLIAMS, C.J.F. (Presided and Delivered Lead Judgment of the Court)
REPRESENTATION
Mr. B. Nwazojie, Federal D.P.P. (with him K.B. Olukolu, Legal Adviser, Board of Customs & Excise, and Mrs. S. Adetiba, Senior State Counsel) for Appellants.
Mr. Kehinde Sofola, SAN (with him Miss O. Sofola) for Respondents.
MAIN ISSUES
GOVERNMENT AND ADMINISTRATIVE LAW– CUSTOMS:- Offences under the Custom and Excise Management Act 1955 – Ignorance of the law – Customs and Excise Management Act 1958 – Whether a defence
GOVERNMENT AND ADMINISTRATIVE LAW– CUSTOMS:- Reversal of traditional idea of burden of proof – s.168 of the Customs and Excise Management Act 1958 – Shift of the burden to the accused person – placing against accused person a presumption of mens rea in the charge against him under the Act – Effect and constitutinality
GOVERNMENT AND ADMINISTRATIVE LAW– CUSTOMS:- Interpretation of Import Prohibition Lists – “Other than Trade” added in brackets after the words “Absolute Prohibition” – Whether superfluous – Need to give interpretation which will not promotes absurdities or give unintended discretion to custom officers where none was intended
GOVERNMENT AND ADMINISTRATIVE LAW– CUSTOMS:- “fraud,” – Proof of the “fraud” contemplated in the Customs and Excise Management Act – Whether not as traditionally required in an action of deceit
INTERNATIONAL TRADE:- Customs – Importation of prohibited goods – Whether ignorance is a defence
CRIMINAL LAW AND PROCEDURE:- Offences under the Custom and Excise Management Act 1955 – Being knowingly concerned in fraudulent evasion of import prohibition – importing with intent to evade import prohibition – Onus of proof – Whether defendant, instead of prosecution, has onus of proof to disprove knowledge and intent – Standard of proof.
CONSTITUTIONAL LAW: Constitutionality of the Customs and Excise Management Act as existing law under the Constitution of the Federal Republic of Nigeria 1979, section 168 thereof – Imposition of burden to prove certain particular facts on defendants – Whether unconstitutional as being inconsistent with section 33(5) of the Constitution
PRACTICE AND PROCEDURE – APPEALS:- Supreme Court – Findings of trial court wrongly reviewed by Federal Court of appeal – Duty of Supreme Court thereto
PRACTICE AND PROCEDURE – COURT:- Trite law that a court of appeal does not treat with sanctity a trial court’s use of the phrases ‘I believe’ or ‘I do not believe.’ Or ‘I find as of a fact’ – Where a trial court fails to make use of the advantage it has of a witness before it – Whether a court of appeal is in as much a good position as the court of trial to deal with these facts
PRACTICE AND PROCEDURE – APPEAL:- Court of appeal as not a fact-finding court but essentially a court of review – Duty to interfere where there is a wrong application of such facts – Alleged misdirection of the trial court in consideration of facts placed before it – Whether it is a matter of law
PRACTICE AND PROCEDURE – APPEAL:- Sentence passed by the trial court – Where not appealed to the Court of Appeal – Whether there is no power in the Supreme Court to interfere with sentence where there was no appeal against sentence
INTERPRETATION OF STATUTE:- Legislative enactment – Presumption against superfluity of expression used by Legislature – Effect
INTERPRETATION OF STATUTE – SCHEDULE TO A STATUTE: Need to view same as much a part of the statute, and as much an enactment, as is the section by which it is introduced – Need to observe the cardinal rules of construction that the provisions of a statute should not be construed in such a way that they would manifestly lead to an absurdity
INTERPRETATION OF STATUTE – OMISSIONS IN A STATUTE:- General rule of construction of statutes precluding court not to supply omissions in a statute, even where such omissions are patently unintentional – Surplusage in statute – Where particular words of the statute or phrases therein are doubtful in their meaning or so obscure that they are not capable of grammatical construction – Whether it is permissible in order to give effect to the statute and in order to avoid manifest absurdity to reject the words or phrases as surplusage if no sensible meaning can be given to them
INTERPRETATION OF STATUTE – Customs and Excise Management Act 1958, No.55 of 1958 – Special legislation in contradistinction to General legislation – Express provision in a subsequent enactment which is entirely inconsistent with the general enactment – Whether the special enactment in a subsequent statute is not a repeal of the provision of the previous general statute – Whether the general provision does not apply to the special enactment although the general provision would remain in force
WORDS AND PHRASES:- “Other than Trade”, “Absolute Prohibition”, “fraudulent”, “knowingly concerned in a fraudulent evasion of the prohibition – Meaning under the Custom and Excise Management Act 1955
NOTABLE PRONOUNCEMENT
“But the fact that a consequence of the order of this Court an order which legally flows from the result of an appeal and which in law this Court should make would be unpalatable, would not be a reason for shrinking from the making of the order. The duty of this Court, and indeed, of all courts, is to ascertain the law and give full effect to it. To allow the judgment of a court to be determined not from the logical result of legal reasoning but by the possible consequences to an appellant, is to depart from the arena of precise law and wade into the muddy waters of political science.” Per Aniagolu JSC
MAIN JUDGMENT
FATAI-WILLIAMS, C.J.N. (Presiding and Delivering the Judgment of the Court):
The respondent, Alhaji Ibrahim Barau, was convicted in the Federal High Court on 18th December, 1980 of two offences under the Customs and Excise Management Act, 1958. The particulars of the first offence (as amended) state that the respondent, on or about the 4th day of August, 1978, at the Murtala Muhammed Airport, Ikeja, in relation to thirteen bundles of carpets valued at N7,500, was knowingly concerned in a fraudulent evasion of the Import Prohibition Order, 1978, applicable to such goods, and thereby committed an offence punishable under section 145(b) of the Customs and Excise Management Act, 1958. The particulars of the second offence state that on or about the same date and at the same place with intent to evade the prohibition imposed on the importation of carpets he was concerned in importing into Nigeria thirteen bundles of carpet valued at N7,500 contrary to the Import Prohibition Order 1978 and thereby committed an offence punishable under section 44 subsection (1)(b) of the said Act.
The facts on which the convictions were based, and which are not in dispute, are as follows. On 4th August, 1978, the respondent arrived by air at the Murtala Muhammad Airport, Ikeja, on a Nigeria Airways flight from London. He brought with him in the luggage compartment of the aircraft thirteen bundles of carpets which he had bought in London. On arrival at the airport, the respondents luggage was examined by a Customs Preventive Officer named Owolabi. Later Owolabi brought the respondent to Peter Okpachu (2nd P/W) a Superintendent Collector of Customs who was the officer-in-charge of the Ikeja Airport at the material time. On meeting Okpachu, the respondent introduced himself as Alhaji Barau of Galma Petroleum and Gas Co. Ltd. After the introduction, the respondent told Okpachu that he (respondent) had just returned with thirteen bundles of carpets on board the Nigeria Airways plane which had just arrived at Ikeja. He also told Okpachu that the carpets were on the tarmac. Okpachu then called Akinlaja Martins (3rd P/W) and one Mrs. Oshiyeml the two senior officers around, to come with him to the tarmac. The respondent went with them. At the tarmac they saw the thirteen bundles of carpets.
Superintendent Okpachu there and then informed the respondent that he had contravened the Import Prohibition Order by importing the carpets into the country. The respondent was then arrested and his passport impounded. When he was asked why he had imported the carpets into the country, he replied that he wanted to use them to furnish his company’s house along the Badagry Express Road. At no time during this encounter did the respondent say that he did not know that the importation of carpets into Nigeria had been prohibited.
After his arrest, the respondent made a written statement (Ex. D) to Miss Sidikat Dayo Amisu (5th P/W). The statement reads
“I travelled by Nigeria Airways WT.917 from London with the thirteen bundles of carpet on behalf of myself and a lady, Miss C. Bonje, a Nigerian now based in London firmly believing that the said carpet all will be used to form part of the furnishing of a twin house newly completed at kilometre 19 Lagos-Badagry Express Way. On declaring the carpet to the Customs at Murtala Muhammad Airport, Ikeja, it was seized by customs authorities and I was told it is under prohibited items. I had since been with the customs until after I have made this statement.”
Even in this written statement (E)c D), the respondent did not say that he did not know that the importation of carpets Into Nigeria was prohibited.
At the trial on 23rd July, 1980, the respondent (as 1st D/W) testified on oath in his defence. Part of his evidence reads
“I had no intention to defraud or to evade customs or to contravene anything that is supposed to come. I genuinely bought the carpet for my house. I thought it was a matter of paying duty. I had no intention of evading Import Prohibition Order. That was why on arrival the first thing I did was to go to the customs and tell them that I had excess luggage which I thought was dutiable.”
Before the respondent left the witness box, the following dialogue took place between him and the trial Chief Judge:
“By Court: You have been in business all along.
1st D/W: Yes.
Court: Do you know that certain goods are prohibited from importation into Nigeria?
1st D/W: After a long hesitation the witness says: ‘I do not know. I travel quite a lot.”’
Thereafter the defence counsel asked him whether he knew before the 4th of August, 1978, that the importation of carpets was prohibited, he replied that he did not know, this time without any hesitation.
After reviewing the evidence adduced before him by both the complainant (the Board of Customs & Excise) and the respondent, the learned Chief Judge found as follows:
“It is in evidence that the defendant brought the 13 bundles of carpets. The defendant is a businessman. In fact, at the material time, he was the Managing Director of Galma Petroleum and Gas Ltd. He is now a Senator. When he was asked by the court if he knew that certain goods were prohibited from importation into Nigeria, he hesitated for a long time and then answered “I do not know. I travel quite a lot.” It is obvious to me that the defendant told a deliberate untruth when he testified that he did not know that the importation of carpets is prohibited. At the time he imported the thirteen bundles of carpets into Nigeria, he knew it was prohibited. He was only play acting when he called the Customs Officers to assess the duty he was supposed to pay on the thirteen bundles. He is pleading ignorance of the law, which of course is no defence. Ignorantia juris non excusat. Calling the Customs Officers to the tarmac where the thirteen bundles of carpet were offloaded from the aircraft so that they could tell him what customs duty to pay, was designed to fraudulently evade the import prohibition.”
The learned Chief Judge then convicted the respondent of the two offences after observing that it would be preposterous in the extreme to hold
“as in the case now in hand that a person who has smuggled a large quantity of prohibited goods would be set free simply because he thought he could bluff his way through by going to the customs officers and telling them that he was ready to pay duty on the said goods. It is laughable for a businessman of the defendant’s standing and a Senator to come to court and testify on oath that he did not know that some goods like imported carpets were under absolute prohibition.”
The learned Chief Judge also ordered that the thirteen bundles of carpets should be destroyed at the expiration of the statutory period for filing appeals. Before making this order, he ordered the respondent to pay a fine of N15,000 or go to prison for twelve months with hard labour in default on the first count and to twelve months imprisonment with hard labour on the second count.
The respondent, having appealed to the Federal Court of Appeal against the convictions, was released on bail by that court on 16th January, 1981.
In allowing the appeal, the President of the Federal Court of Appeal, after referring to the passages in the judgment of the Chief Judge of the Federal High court to which I have referred earlier, observed:
“From the above passage it is dear that the learned Chief Judge came to his conclusion that the appellant was not telling the truth on the ground that (1) he was a businessman and he was Managing Director of Galma Petroleum and Gas (2) he was a Senator, (3) he was ignorant of the law and (4) he was play acting when he called the customs officers. With respect I have not been able to trace any evidence to show the nature of the business of the appellant or his company, nor have I seen any link between being a Senator and importation of carpets. Indeed the appellant became Senator only in 1979, a fact we all know. As the learned Chief Judge “rightly pointed out that ignorance of the law was no defence, then the question asked by the Court was to that extent irrelevant. There is no such presumption that every person knows the law; the presumption, again as pointed out by the learned Chief Judge, is that ignorance of the law is no defence. The question by the Court as to whether the appellant knew whether certain goods were prohibited from importation could not be used to discredit the evidence given by the appellant in this case. Even if that be the case, the appellant was not accused of failing to know the law. He was charged with offences accusing him of knowingly and with intent fraudulently to evade a prohibited order. To sum it all up, I am not convinced that there was evidence before the Court to justify conclusions reached by the learned Chief Judge In the above-quoted passage of the judgment.
The next important Issue raised is whether the appellant has discharged the burden of prod placed on him by section 168 of the Customs and Excise Management Act, 1958. The section 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.’
In all offences under the Customs and Excise Management Act, 1958, which fall within the provisions of the above section the law has in fact saved the prosecution from proving knowledge or recklessness or intent and has shifted the burden on the defendant to disprove such knowledge or Intent or recklessness. Does this however mean that the complainants are under no duty whatever to proffer any evidence in support of the charge with particular reference to proving knowledge or intent and that it is enough to frame a charge and arraign the defendant and then leave him to extricate himself out of the charge: If the defendant must provide all the answers, has the appellant in this case discharged this burden? The answers to the above questions will provide a solution to this appeal…
After considering the submissions of counsel for the respondent on this point, he observed further as follows:
“In all offences where knowledge or intent or fraud form part of the elements necessary to prove a charge, there is the requirement that not only must the actus reus be committed but the defendant must “have mens rea before he can be convicted for the offence. In other words, the defendant must have known that what he did was wrong or amounted to a breach of what the law wanted to protect. The defendant may have a reasonable idea, not actual knowledge, that a particular course of action has been prohibited but he deliberately or recklessly refuses to find out the true position, that is, he ‘shuts his eyes’, in such a situation the defence of ignorance may or may not avail him. In such cases, each case must be considered on its own merit in the light of the evidence available. The Court then must consider whether on the balance of probabilities the defendant has established his defence of lack of knowledge. It seems that this defence is available even if it pertains to the ignorance of the law in such cases where the offence charged specifically makes ‘knowledge’ to be a prerequisite of the offence.”
The Federal Court of Appeal then allowed the appeal, set aside the convictions and sentences, and acquitted and discharged the respondent, after the President of the Court had finally found as follows:
“Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under count 1 in the present appeal that is a charge under section 145(b) “of the Customs and Excise Management Act, 1958 the prosecution had a duty to give sufficient evidence as would be able to point to the fact that the appellant was ‘knowingly concerned in any fraudulent evasion… of any such prohibition.’ it is not enough as I have already pointed out, and as was also stated in Dada’s case, for the prosecution to prove importation and keep quiet. In my opinion at such a stage the provisions of section 188 of the Customs and Excise Management Act, 1958, have not been called into action. It is for the prosecution to show that the defendant’s actions generally give a prima facie proof of having knowledge and the intent to evade. For an absolute liability to be created the statute must be very specific and must not, in my opinion, use such terms as ‘knowingly and with intent to evade.’ It is, I think, beyond doubt that the offence created is not for the mere importation but more on the intent to evade. This is the issue to which the learned Chief Judge in this case had not adverted his mind as a result of which he misdirected himself on the issue before him and dwelt on the issue of ignorance of the law. But even on this score, I am of the view that in cases of this nature the defendant cannot be convicted unless it can be shown that he has intent to evade the prohibition. In the case in hand the appellant had given his reasons for the “importation (1) that he was ignorant of the prohibition, (2) that he wanted to furnish his house, (3) that he put in evidence the plans of the house and (4) that his evidence was not contradicted. I have seen in the judgment where the defence of ignorance of the law was considered but I have not seen where any consideration was given as to the evidence given in respect of the house. As the prosecution did not challenge or contradict the evidence of the defence I am satisfied that the learned Chief Judge was in error for failure to assess all these pieces of evidence given by the appellant. It is not enough for the trial court to use a blank epithet, ‘I do not believe’ without giving consideration of the evidence given as a whole by the defendant. This Is so both in civil and criminal cases Oladehin v. Continental Textiles Mills Ltd, (1978) 2 S.C.23.
The second count dealt with a charge under section 44(1)(b) of the Customs and Excise Management Act, 1958. The facts in the present appeal and those in Dada’s case are on all fours. Both defendants brought in goods at Murtala Muhammad Airport. Both declared the goods brought in. Both gave reasons to the customs officers consistent with their evidence in court. Both pleaded ignorance. And both were disbelieved by the trial court on their ignorance of the law and as to their motive for declaring the goods. I feel fortified by the English decisions quoted above in “following the decision in Dada’s case as a result of which I have to agree with Mr. Sofola that the appeal on this count should succeed.
In the course of my consideration of the Customs and Excise Management Act, 1958 and the various Acts amending it or pertaining to customs and excise I became more convinced that sections 44 and 145 of the Customs and Excise Management Act, 1958 were not intended to create absolute criminal offences. This is so not only because such phrases as ‘knowingly and with Intent to evade’ and ‘with Intent to evade’ have been used but also because there are other sections of some of the Acts which have created offences with absolute criminal responsibility.”
The other Justices of the Federal Court of Appeal (Nnaemeka-Agu and Uthman Mohammed, JJ.C.A.) who heard the appeal, agreed with these findings. Against this decision, the Board of Customs and Excise, (hereinafter referred to as the appellant) has now appealed to this Court on the following grounds:
“Ground 1
The learned Justices of the Court of Appeal misdirected themselves considerably on the “intendment of section 168 of the Customs and Excise Management Act 1958 by holding that it is for the prosecution to prove knowledge and intent of an accused person charged under sections 145(b) and 44(1)(b) of the Customs and Excise Management Act 1958 before the provisions of section 168 of the Customs and Excise Management 1958 would be called Into action, and they thereby came to a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal appears in various portions of their judgment but particularly on the following excerpts of the judgment of the President:
‘Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under Count 1 in the present appeal that is a charge under section 145(b) of the Customs and Excise Management Act, 1958 the prosecution had a duty to give sufficient evidence as would be able to point to the fact that the appellant was ‘knowingly concerned in any fraudulent evasion … of any such prohibition.’ It is for the prosecution to show that the defendant’s actions generally give a prima facie proof of having knowledge and the intent to evade.’
“Ground 2
The learned Justices of the Court of Appeal misdirected themselves in law by asserting that ‘ignorance of the law’ shall found a defence for an accused person charged with knowingly concerned in a fraudulent evasion of a prohibition under section 145(b) of the Customs and Excise Act 1958 when in fact ‘ignorance of the law’ is merely an element that may be taken into consideration in evaluating any defence of lack of knowledge by an accused person in any such situation under the said section of the Customs and Excise Management Act 1958, and they thereby came to a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal is clearly indicated in the following excerpts of the judgment of the President:
The Court then must consider whether on the balance of probabilities the defendant has established his defence of lack of knowledge. It seems that this defence is available even if it pertains to the ignorance of the law in such cases where the offence charged specifically makes ‘knowledge’ to be a prerequisite of the offence.
Ground 3
The learned Justices of the Court of Appeal erred in law by failing to make an order that the carpets involved in this case should be forfeited to the Board of Customs and Excise by virtue of section 43(b) of the Customs and Excise Management Act, 1958, and paragraph 1(1) of the Import Prohibition Order 1978 (LN.16 of 1978); even if the appellant was able to establish that he was not knowingly concerned in fraudulent evasion of import prohibition, or that he had no intent to evade the prohibition imposed on the importation of carpets when he Imported the carpets.”
At the hearing of the appeal before us against the decision of the Federal Court of Appeal, the learned Federal Director of Public Prosecutions, who appeared for the Board of Customs and Excise (the appellant), made a number of submissions. Reduced to their essential details, these submissions, based partly on the construction of the relevant provisions of the Customs and Excise Management Act, 1958, (when compared with a similar English Act) and the subsidiary legislation made thereunder, partly on the grounds of appeal already set out above, and finally on the written Brief of Argument filed by him, are as follows.
The Federal Court of Appeal erred in its interpretation of the relevant provisions of the Customs and Excise Management Act (hereinafter referred to as the Act). It was this erroneous interpretation which led the Court to come to the conclusion that it is the prosecution which had to prove the knowledge and intent which are two of the principal ingredients of the offence. Secondly, the Court of Appeal erred in setting aside the findings of fact of the learned trial Chief Judge who saw and heard the witnesses and the accused and substituting therefor its own findings. Finally, learned counsel contended that it would be wrong to impute to the word “Trade” added in brackets to the words “Absolute Prohibition” which formed the heading to Part II of the First Schedule to the Import Prohibition Order, 1978, emphasis and connotations which the word does not carry bearing in mind the other provisions of the said Order.
For the respondent, it was submitted by learned counsel who appeared for him that nowhere in the judgment of the learned Chief Judge is there any reference to the standard of proof which has to be attained by a defendant upon whom a burden of proof rests in a criminal trial. Learned counsel then went on to submit, quite rightly, that if the evidence raises a presumption of guilt, then it is for the accused to rebut that presumption, but that all he is required to do is only to establish a balance of probabilities in his favour. Counsel then submitted that since the learned Chief Judge did not indicate that he had this principle in mind, the Federal Court of Appeal was right in holding, as it did, that it would be unsafe to rely on the Chief Judge’s specific finding that the respondent did know that the importation of carpets was prohibited, and also on his implied finding that he (the respondent) was knowingly concerned in a fraudulent evasion of the Order in relation to Count One; learned counsel also contended that the Court of Appeal was right to hold that it was unsafe to rely on the Chief Judge’s finding that the respondent had a deliberate intent to evade a prohibition against the importation of carpets in relation to Count Two.
The other submissions of learned counsel for the respondent may be summarised as follows. The Chief Judge’s finding that the respondent’s act in calling customs officers to the tarmac so that they could tell him what customs duty to pay was fraudulently designed to evade the import prohibition, was clearly erroneous. Since the real point in issue in the case is whether the respondent intended to evade the prohibition, it is not possible for a defendant to have an intent to evade a prohibition of which he is not aware. Learned counsel then said he was amazed at the observation of the learned Chief Judge that the respondent was “play acting” when he asked the customs officers how much duty he had to pay on the carpets. He asked the court not to attach any importance or credence to this observation. Finally, learned counsel submitted that since Part II of the First Schedule to the Import Prohibition Order relates to articles imported for the purposes of trade, and since the respondent was not importing the carpets for purposes of trade but for his own personal use, he was not caught by any prohibition in the 1978 Order.
Learned counsel for both the appellant and the respondent referred us, as they had done in the Court of Appeal, to a number of English decisions to buttress the various points urged upon us. Except, perhaps, to reinforce my view of the word “fraudulent” used in the first count of the charge, none of these decisions applies to Nigeria. The law here is quite different. I shall deal in more detail with the difference later In this judgment.
However, before dealing with the various points canvassed in this appeal, I will refer in detail to, and construe, the applicable provisions of the Act and the Order made thereunder. It is provided in section 22 of the Customs and Excise Management Act, 1958 (No. 55 of 1958), (hereinafter referred to as the Act, as adapted), which was applicable at the time of the alleged offence, as follows:
‘The Commissioner may, by Order
(a) prohibit the importation of any specified goods;
(b) prohibit the importation of all goods or any specified goods except as provided in the Order;
(c) subject to any specified exceptions prohibit the importation of all goods except with the general or special permission in writing of a specified authority or authorities.”
Pursuant to the above provisions, the Federal Commissioner of Finance on 1st April, 1978, made the Import Prohibition Order, 1978, (LN. 16 of 1978) section 1 subsection (1) of which reads –
“1 (1) The importation of the goods specified in Parts I and II of Schedule 1 of this Order is absolutely prohibited.”
Part II of Schedule 1 and Item 51 thereof read-
“Part II
Absolute Prohibition (Trade)
…………………………
“51. Carpets, carpetting and rugs (Tariff Nos.58.01 58.02).”
In considering the scope of the Prohibition Order, it seems to me that the prohibition of the importation of carpets into Nigeria, having regard to the clear provisions of section 1 subsection (1) of the Prohibition Order is 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 as Item 51. In the course of his argument before us, learned counsel for the respondent tried to make heavy weather of the use of this word ‘Trade.” Suffice it to say that the use of the word cannot, and does not, reduce the impact or effect of the mandatory provisions of section 1 subsection (1) of the Order. This word, to my mind, and indeed, the other words “Other than Trade” added in brackets after the words “Absolute Prohibition” in Part I of the same First Schedule to the Order, are superfluous. There is, it must be emphasized, no presumption against superfluity of expression, whether in statutes or rule of interpretation controlling what might, otherwise, be their proper interpretation. In the context of the Import Prohibition Order, 1978, therefore, the words “Absolute Prohibition” can only mean, and do mean, that the importation of goods, which clearly include carpets, listed in the First Schedule are absolutely prohibited.
With respect to prohibited goods it is provided in section 166 subsection (2) of the Act, inter alia, as follows:
“(2) Where in any proceedings relating to customs or excise any question arises … as to whether or not … (g) any goods are or were goods prohibited to be imported, exported or carried coastwise, then, where those proceedings are brought by or against … the Board … the burden of proof shall lie upon the other party to the proceedings.” (Italics mine.)
“Board” is defined in section 2 of the Act as meaning “the Board of Customs and Excise” established under the Act.
Finally, and this provision is crucial to this appeal, it is provided in section 168 of the Act as follows:
“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 any 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.” (Italics mine.)
I should like to point out, at this Juncture, that, while the provisions of section 166 subsection (2)(g), which relate to proceedings generally, whether civil or criminal, are similar to the provisions of section 290(2) of the Customs and Excise Act, 1952 of England (as amended or reenacted from time to time), those of section 168 which apply only to criminal prosecutions, are unique and peculiar to Nigeria. There are no similar provisions in the English Statute. That being the case, all the English decisions cited before us as to the burden of proving knowledge or specified intent are irrelevant and do not apply to the situation which the law in Nigeria is Intended to cover and the mischief which it is intended to prevent.
With respect to these unique provisions of section 168 of the Act, it is my view, and I so hold, that in a criminal prosecution under any of the provisions of the Act, such as the case in hand, once the prosecution has proved that the carpets in question were imported by the respondent into the country, the law presumes in favour the prosecution that:
(a) as alleged in the two counts, the importation of the carpets is absolutely prohibited (see section 166(2)(g) of the Act):
(b) in respect of an offence punishable under section 145(b) of the Act, the respondent was knowingly concerned in a fraudulent evasion of the Import Prohibition Order; and
(c) in respect of an offence under section 44(1)(b) thereof, the respondent intended to evade the prohibition imposed on the importation of carpets and was consequently concerned in the importation of the thirteen bundles of carpets valued at N7,500.00k.
It is for the respondent to rebut these presumptions. The Federal Court of Appeal was, therefore, dearly in error in placing undue reliance on the English decisions and holding, therefore, that the onus, in such circumstances, is always on the prosecution to prove fraudulent knowledge or Intent.
Under our own Customs and Excise Management Act as it stands, It is the accused who has to satisfy the Court that the importation of the prohibited goods are without any such knowledge or intent. In support of this view, I refer to the decision of this court in Ebiri and another v. Board of Customs and Excise (1967) N.M.LR. 35. Although the case dealt with the fraudulent evasion of payment of customs duty, the ratio decidendi of the court’s decision, vis-à-vis the interpretation of section 168 of the Act, applies with equal force to the case in hand. In considering the scope of sections 166(2) and 168 of the Act, Brett, J.S.C., delivering the judgment of the court, found at page 39 as follows:
“Section 166(2)(a) and (b) read
‘166(2)Where in 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 the 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.”
Therefore, to hold, as the learned President of the Federal Court of Appeal (with the concurrence of the other two Justices) has held, that offences created under the Act-
“is not for the mere importation but more on the intent to evade”
is, with respect, clearly erroneous and does undue violence to the clear and unambiguous language of sections 166 and 168 of the Act.
As for the word “fraudulent” used in phrase “knowingly concerned in a fraudulent evasion of the prohibition,” it must be pointed out that there is nothing in the Act to suggest that customs officers need be deceived or defrauded in order to establish the guilt of any person charged with an offence under section 145(b) of the Act. Indeed, what has to be ‘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. For this reason, I subscribe to the view that the word “fraudulent” used in section 145(b) of the Act has the effect that, in prosecutions 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 sections 166(2) and 168 of the Act) fraudulent conduct in the sense of dishonest conduct deliberately intended to evade the prohibition with respect to the goods concerned. There is no necessity to presume acts of deceit practised on a customs officer in his presence. [See Attorney-General’s Reference (1982) 2 WLR. 873 at pages 881882(C.A)]
The next question to be considered is this. Did the respondent discharge this onus in the case in hand? The evidence, which the learned Chief Judge accepted and to which I have referred earlier in this judgment showed that
(a) when the respondent was informed on the tarmac by the customs officers that the importation of carpets into Nigeria was prohibited, he did not say that he had no knowledge of such prohibition as one would have expected of a much-travelled person as the respondent;
(b) when he made his written statement (Ex. D) to the police after his arrest, he still did not say that he did not know that the importation of carpets was prohibited. All that he stressed was that he wanted to know what duty he should pay on the thirteen bundles of carpets;
(c) even, in court, when the Chief Judge asked him a direct question on 23rd July, 1980 (almost two years after his apprehension at the Airport) about whether he knew that certain goods were prohibited from importation into Nigeria, the respondent replied that he did not know and that he travelled quite a lot only “after a long hesitation.”
In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or concerned in the said evasion. Having made his findings, correctly in my opinion, 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 certainly in error in so doing.
In Akinloye & anor. v. Eyiyola & ors. (1968) N.M.L.R. 92 at page 95, this court held that
“Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court.”
Again, in Fabumiyi & Anor. v. Obaje & Anor. (1968) N.M.LR. 242 at page 247. this court dealt with the evaluation of evidence of an appeal court In more detail as follows:
“A court of appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of fact or the inferences drawn from them may be questioned in certain circumstances. (See Benmax v. Austen Motor Co. Ltd. (1955) A.C. 370; Akintola v. Fatoyinbo Oluwo & ors. (1962) All N.LR. 224; and Lawal Braimoh Fatoyinbo & ors. v. Abike Williams (1965) 1 F.S.C. 67). The result of the authorities is simply this, that where the facts found by the court of trial are wrongly applied to the circumstances of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a court of appeal is inasmuch a good position to deal with the facts and findings as the court of trial.”
It only remains for me to add that, having regard to my own observation on the evidence made earlier, all the reasons which could justify reevaluation of the evidence by an appeal court are not present in the case in hand.
In 1974, this Court again considered the limitations placed on a court of appeal in reevaluating evidence accepted by a trial court in Balogun & ors. v. Agboola (1974) 1 All N.L.R. (Part 11) page 66. We observed at page 73 of our judgment in that case as follows:
“The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court. Interference by a court of appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the court of appeal) were dealing only with the cold sullen print of the records before them.”
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his “performance” on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when “dealing only with the cold sullen print of the records before them” decided to set aside the Chief Judge’s findings of fact. Like this Court in Balogun & ors. v. Agboola (supra), I “have no hesitation in restoring the findings of fact of the learned trial Judge.”
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance the evidence adduced by the prosecution, which the Chief Judge accepted, against. It must be remembered that the defence of the respondent was, for good and sufficient reasons if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal are grounds of law. Even the misdirections complained of in some of the grounds of appeal relate either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Mohammed Bello, J.S.C., has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.
For all these reasons, the judgment of the Federal Court of Appeal cannot be allowed to stand. I, therefore, allow the appeal of the Board of Customs and Excise (appellant) against the judgment of the Federal Court of Appeal setting aside the convictions and sentences passed on the respondent in the Federal High Court. I also set aside the order of the Court of Appeal by which the respondent was acquitted and discharged.
I, accordingly, restore the convictions and sentences passed on the respondent on 18th December, 1980 in respect of the two counts on which he was tried in the Federal High Court. The concurrent sentences of twelve months imprisonment passed on him on each count are, however, to include any part of the sentences which he has already served. In effect, he should go to prison only for the remainder of the unexpired term.
The order made by the learned Chief Judge for the destruction of the carpets is slightly varied to read that the thirteen bundles of carpets (Exhibits B to B12) shall be forfeited and are hereby forfeited; thereafter, they shall be destroyed pursuant to the provisions of section 1 of the Customs and Excise (Special Penal and other Provisions) Act, 1977 (No. 38 of 1977).
IRIKEFE, J.S.C.:
I had the advantage of a preview of the judgment just read by the learned Chief Justice of Nigeria. I agree with the reasoning and conclusions therein. I also would allow the appeal, set aside the decision of the Federal Court of Appeal dated 17th November, 1981, and restore the decision of the trial court, Anyaegbunam (Chief Judge), dated 18th December, 1980 as modified do the leading judgment of the Chief Justice aforesaid.
The controversy in this case is concerned with the Interpretation of section 168 of the Customs and Excise Management Act (No. 55 of 1958). There is no question that this provision Is uniquely Nigerian and that the English statute on which some of the authorities cited before us were based does not contain a corresponding provision. The short question was whether, in spite of section 168, the prosecution was still under an obligation to establish a prima facie case against the respondent in regard to the offences charged as the Court of Appeal would appear to have decided. This, in my view, was a misdirection on the part of the Court of Appeal of a most fundamental character. This was the main point on which the decision of that court was anchored and if this point was not upheld by this court, the only inescapable conclusion would be the total restoration of the judgment of the trial court.
Several decisions of this court including Fabumdyl & Anon. vs. Obale & Anor. (1968) N.M.LR. p.242 have clearly set out circumstances and situations when a Court of Appeal can arrogate to itself the right to do what the court of first Instance should have done but did not do. It must be manifest from the record of the trial court that the facts found were wrongly applied to the facts and circumstances of the case or that wrong Inferences were drawn from the facts so found.
I am unable to hold that, on the facts before the Court of Appeal in this case, based on the printed record from the trial court, the requisite conditions for disturbing the findings of fact existed.
BELLO, J.S.C. (Dissenting):
The respondent was convicted by the learned Chief Judge of the Federal High Court of two counts, which read:
“AMENDED COUNT 1: That you, ALHAJI IBRAHIM BARAU, on or about the 4th day of August, 1978 at Murtala Muhammad Airport, Ikeja In the Lagos Judicial Division of the Federal High Court of Nigeria in relation to goods to wit: 13 Bundles of carpets valued at N7,500 were knowingly concerned in a fraudulent evasion of the Import Prohibition Order 1978 applicable to such goods, and thereby committed an offence punishable under Section 145(b) of the Customs and Excise Management Act 1958.”
“COUNT 2: That you ALHAJI IBRAHIM BARAU on or about the 4th day of August 1978 at Murtala Muhammed Airport, Ikeja in the Lagos Judicial Division of the Federal High Court of Nigeria with intent to evade the Prohibition Imposed on Importation of Carpets were concerned in importing into Nigeria 13 Bundles of Carpets valued at N7,500 contrary to the IMPORT PROHIBITION ORDER 1978 committed an offence punishable under Section 44(1)(b) of the Customs and Excise Management Act 1958, dated this 7th day of February 1980.”
He was sentenced to a fine of N15,000 on count one and 12 months imprisonment on the second count.
The facts of the case are as follows: On 4th August, 1978, the respondent arrived at the Murtala Muhammad Airport, Ikeja on a flight from London. He had 13 rolls of carpet as part of his luggage. He reported to the customs officers at the Airport for the purpose of payment of customs duty and informed them of the carpets. The senior customs officer in charge accompanied by two other officers and the respondent went to the apron at the Airport where the respondent showed the customs officers the carpet. The senior officer asked the respondent why he had brought the carpet when it was prohibited. The respondent replied that he would use it to furnish his house. He was there arrested. Testifying at the trial the respondent said:
“I had no intention to defraud or to evade customs or to contravene anything that is supposed to come. I genuinely brought the carpet for my house. I thought it was a matter of paying duty.
I had no intention of evading Import Prohibition Order. That was why on arrival the first (thing) I did was to go to the Customs and tell them that I had excess luggage which I thought was dutiable. Exhibits B to B12 are the 13 bundles of carpets I imported into the country.”
Except one question concerning the permanent residence of the respondent, the prosecutor did not cross-examine him. The Chief Judge examined him as follows:
“By Court: You have been in business all along.
1 D.W.: Yes.
Court: Do you know that certain goods are prohibited from importation into Nigeria?
1 D.W.: After a long hesitation the witness says, “I do not know. I travel quite a lot.”
By Gani Fawehinmi: Do you know before 4/8/78 that importation of carpets was prohibited?
1 D.W.: I do not know, he said without hesitation.”
The rolls of carpet were admitted in evidence as Exhibits B to B12.
The respondent produced the building plans of his house, which was admitted in evidence as Exhibit F to F6. The architect who had designed the house gave evidence for the defence. He said the floor area of the house was 1,160 square metres.
In convicting the respondent the learned Chief Judge observed in his judgment as follows:
“It is in evidence that the defendant brought the bundles of carpet. The defendant is a businessman. In fact, at the material time, he was the Managing Director of Galma Petroleum & Gas Ltd. He is now a Senator. When he was asked by the court if he knew that certain goods were prohibited from importation into Nigeria, he hesitated for a long time and then answered “I do not know. I travel quite a lot.” It is obvious to me that the defendant told a deliberate untruth when he testified that he did not know that the Importation of carpet is prohibited. At the time he imported the thirteen bundles of carpet into Nigeria, he knew it was prohibited. He was only playacting when he called the Customs Officers to assess the duty he was “supposed to pay on the thirteen bundles. He is pleading ignorance of the law which of course is no defence. Ignorantia juris non excusat. Calling the Customs Officers to the tarmac where the thirteen bundles of carpet were offloaded from the aircraft, so that they could tell him what customs duty to pay was designed to fraudulently evade the Import Prohibition.
It is laughable for a businessman of defendant’s standing and a senator to come to court and testify on oath that he did not know that some goods like imported carpet are under absolute prohibition.”
The respondent appealed against the decision of the trial Chief Judge to the Federal Court of Appeal on 8 grounds of appeal on questions of law and facts. The Court of Appeal allowed his appeal, set aside the convictions and sentences and ordered his acquittal and discharge.
The Board of Customs and Excise was not satisfied with the decision of the Court of Appeal and has appealed to this Court on three grounds of appeal. Ground 3 complains of the failure of the Court of Appeal to order the forfeiture of the carpet.
I agree with the order made by my learned brother, the Chief Justice. I do not intend to deal with it any more.
For reasons that will appear later in this judgment, I consider it pertinent to set out grounds 1 and 2 in full:
“Ground 1
The learned Justices of the Court of Appeal misdirected themselves considerably on the Intendment of section 168 of the Customs and Excise Management Act 1958 by holding that it is for the prosecution to prove knowledge and intent of an accused person charged under sections 145(b) and 44(1)(b) of the Customs and Excise Management Act 1958 before the provisions of section 168 of the Customs and Excise Management 1958 would be called into action, and they thereby came to a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal appears in various portions of their judgment but particularly on the following excerpts of the Judgment of the President-
“Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under Count 1 in the present appeal that Is a charge under section 145(b) of the Customs and Excise Management Act, 1958 the prosecution had a duty to give sufficient evidence as would be “able to point to the fact that the appellant was “knowingly concerned in any fraudulent evasion … of any such prohibition.” It is for the prosecution to show that the defendant’s actions generally give a prima facie proof of having knowledge and the intent to evade.”
Ground 2
The learned Justices of the Court of Appeal misdirected themselves in law by asserting that “Ignorance of the law” shall found a defence for an accused person charged with knowingly concerned in a fraudulent evasion of a prohibition under section 145(b) of the Customs and Excise Act 1958 when in fact “Ignorance of the law’ is merely an element that may be taken into consideration in evaluating any defence of lack of knowledge by an accused person in any such situation under the said section of the Customs and Excise Management Act 1958, and they thereby came a wrong decision in law.
Particulars of Error
The error of the learned Justices of the Court of Appeal is clearly indicated in the following excerpts of the judgment of the (sic)-
The Court then must consider whether on the balance of probabilities the “defendant has established his defence of lack of knowledge. It seems that this defence is available even if it pertains to the ignorance of the law in such cases where the offence charged specifically makes “knowledge” to be a prerequisite of the offence.”’
I also agree that the Court of Appeal erred in law in its interpretation of section 168 of the Customs and Excise Management Act. I agree with the interpretation the Chief Justice put on the section in so far as it relates to the onus of proof imposed on an accused person by the section. This covers ground 1.
Section 22 of the Criminal Code provides short answer to ground 2- The learned trial Chief Judge did not advert his mind to the section. He relied on the rule of the common law of England expressed in the Latin maxim: ignorantia juris non excusat, which means ignorance of the law excuses not. In other words, ignorance of the law is no defence. The Federal Court of Appeal held that the trial Chief Judge had erred in law and stated, rightly in my view, that where knowledge of the law is an ingredient of the offence ignorance of the law is a defence. Section 22 of the Criminal Code provides:
“22. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.”
By virtue of the provisions of section 2(4) of the Criminal Code Act, Cap. 42 Vol.2, page 594, The Laws of the Federation, 1958 the provisions of section 22 of the Code apply to offences under the Customs and Excise Management Act 1958 and the Import Prohibition Order 1978.
Now the most essential element of the offence under section 145(b) of the Customs & Excise Management Act 1958, under which count 1 was laid, is being “knowingly concerned in a fraudulent evasion of the Import Prohibition Order 1958.” This element of the offence under the section appears to me to mean that the offender must have knowledge of the 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 Management Act 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 of appeal therefore fails.
With all due respects, I am unable to agree that because ground 1 succeeds, the appeal should be allowed, the judgment of the Court of Appeal be set aside and the convictions and sentences be restored. It is very significant to point out that the Court of Appeal based its decision on several important issues canvassed before it on 8 grounds of appeal. The issues decided by the Court of Appeal may be summarised thus:
(1) Question of error of law as to the interpretation of section 168 of the Customs & Excise Management Act 1958 concerning the burden of proof resting on the prosecution and the accused for the offences under counts 1 and 2;
(2) Question of error of law as to the failure of the trial Chief Judge to consider the burden of proof within the balance of probability imposed on the appellant by section 168 and his failure to make finding of fact as to whether or not the appellant discharged the burden of proof;
(3) Question of error of law as to the defence of ignorance of the law; and
(4) Question as to the errors of finding of facts made by the trial Chief Judge against the respondent which the Court of Appeal reversed and made its own findings of facts in favour of the respondent.
As I have earlier indicated, the appellant succeeds on its appeal before us on question (1) of the foregoing. It fails on question (3). It did not appeal against the decision of the Court of Appeal on questions (2) and (4).
It is appropriate at this stage to set out the findings of the Court of Appeal, which have not been appealed against. In the extract of the judgment of the trial Chief Judge which I have earlier on quoted in this judgment, the learned Chief Judge made these findings of facts:
(1) that the respondent told deliberate untruth when he testified that he did not know that importation of carpet was prohibited;
(2) that he was playacting when he called the customs officers to assess the duty he was supposed to pay on the carpet;
(3) that calling the customs officers to the tarmac where the carpet was offloaded from the aircraft was designed to fraudulently evade the Import Prohibition Order.
In his judgment, Nasir, P. reversed the foregoing findings of facts on the ground that there was no evidence before the trial court to justify the conclusions reached by the Chief Judge.
While agreeing with the judgment of Nasir, P. Nnaemeka-Agu, J.C.A., stated in his judgment:
“In the instant case, the only evidence before the court as to the belief of the appellant, and from which it could be inferred whether or not such a belief was innocent and reasonable, was that of the appellant. He testified that he believed that the goods were dutiable goods and that on arrival at the airport he went and invited the customs authorities to come and assess it for purposes of duty; and that he did not know that they were prohibited from importation. The prosecution did not cross-examine him of these. They were deemed to have accepted them as true: See Browne v. Dunn 6 R 67, 7677; R. V. Hart (1932) 23 Cr. App. R. 202. See Phipson: on Evidence (12th Edn) para. 1593. It was not competent for the learned Chief Judge to ask him questions in order to decide on his credibility on the above facts when the prosecution did not. We operate an adversary system in which the Judge, as an umpire, can only ask questions to fill a gap, not to know whether or not to believe a witness, much more an accused person on an issue of fact. As the prosecution asked no questions in the cross-examination and called no evidence in contradiction or rebuttal, the learned Chief Judge had no alternative but to have accepted the above evidence of the appellant. And, If he did, he would probably have come to the conclusion that the appellant discharged the burden of proof incumbent on him by reason “of section 168 of the Customs and Excise Management Act, No. 55 of 1958, which burden is discharged on a balance of probabilities: See R. V. Carr-Briant 29 Cr. App. R.76: Board of Customs & Excise v. Bayo (1960) W.N.LR. 178, 181. Whether or not that belief was reasonable and honest is a question of fact, which would have entailed a consideration of the quantity of the carpet in relation to the plan of the house of the appellant which was in evidence but not considered at all, as well as other circumstances of the case. As it is not now possible to say what conclusion the learned Chief Judge would have reached if he had approached the evidence before him correctly and considered these Issues properly, I have no alternative but to discharge the appellant. He is hereby acquitted and discharged.”
In his concurring judgment Mohammed, J.C.A. said:
‘There could not be a fraudulent evasion where the appellant took the Customs Officers to the carpets he brought into the country and asked them to tell him how much duty he would pay on them. This has established that the appellant honestly believed that carpets were not absolutely prohibited. There was no act of concealment or deception involved here and therefore no fraud was established. In an Indian case of Reddy v. Balarami Beddy (1937), All India Reports (M) 713 it was held that where property was removed openly in the light of day and there was no question of concealment, secrecy, clandestine action, deception or anything else which the word ‘fraud’ suggests the act could not be said to be made or done fraudulently. I entirely agree with the submission of the learned counsel for the appellant, in ground 6, where he said that the learned Chief Judge erred in law when he failed to make a specific finding on an Important ingredient of each of the offences charged, namely, ‘with intent to defraud’ in Count 1 and ‘with intent to evade the import prohibition in Count 2 and thereby came to an erroneous conclusion.”
The findings of facts by the Court of Appeal may be summarised thus:
(1) that the Chief Judge was wrong in his finding that the respondent lied when he said he did not know importation of carpet was prohibited;
(2) that the Chief Judge was wrong in his finding that the respondent was playacting;
(3) that the Chief Judge was wrong in rejecting the evidence of the respondent which stood uncontradicted, irrebuted and unshaken by cross-examination;
(4) that there was no evidence of fraudulent evasion of the Order; and
(5) the Chief Judge did not advert his mind to section 168 of the Customs & Excise Management Act on the issue of onus of proof and consequently, he failed to consider whether the respondent had disproved within the balance of probabilities the burden imposed on him by the section.
In my opinion, all the issues in the foregoing paragraphs are findings of facts made by the Court of Appeal in favour of the respondent. There is no appeal by the prosecution to this Court against any of the findings.
I think it is very relevant for the proper determination of this appeal to examine the provisions of section 213 of the Constitution which provides:
“213 (1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal.
(2) An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Federal Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Federal Court of Appeal or in which the Federal Court of Appeal has affirmed a sentence of death Imposed by any other court;
(e) decisions on any question whether any person has been validly elected to any office under this Constitution or to the membership of any legislative house or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant; and
(f) such other cases as may be prescribed by any law in force in any State.
(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court.”
It is clear from the provisions of section 213, that a prosecutor has no right of appeal to this Court against the decision of the Federal Court of Appeal on questions of facts. He can only appeal against questions of facts with the leave of the Federal Court of Appeal or of this Court.
The appellant in this appeal did not obtain the leave of the Federal Court of Appeal and nor of this Court to appeal on questions of facts. There is no ground of appeal on questions of facts. In his brief, the learned Director of Public Prosecutions of the Federation did not complain of any question of fact. Contrary to the provisions of our Constitution, it was only during the oral argument at the hearing of the appeal before us that the learned Director of Public Prosecutions smuggled into Oft Court the issue on the findings of facts by the Court of Appeal. I use the word “smuggled” not to show disrespect of the learned Director but because I consider the word appropriate in the circumstances of this case.
In my opinion, the introduction by the learned Director in his submission of the question relating to cases where the Court of Appeal may on appeal Interfere with the findings of facts made by a trial court is contrary to the provisions of section 213 of the Constitution. His submission on the question is therefore incompetent and, for my part, I am duty bound to Ignore it. The authorities he cited, Fabumiyi v. Obaje (1968) N.M.LR. 242; Balogun v. Agboola (1974) 1 All N.L.R. (Part II) and all other decisions on the question are totally irrelevant. I do not intend to consider them.
It must be appreciated that decisions of the Federal Court of Appeal in any civil or criminal proceedings including all questions of law and facts deckled by that court are valid and effective until they have been set aside by this Court: Odiase v. Agho (1972) 1 All N.L.R. 170 at 176 and Melifonwu & Ors v. Egbuji & Ors. S.C.11/1981 delivered on 24th September 1982 (unreported yet). This Court will only set aside a decision of the Court of Appeal in accordance with the provisions of the Constitution, the Supreme Court Act, 1960 and the Rules of Court.
It is settled by a long line of decisions that as a general rule an appellate court will not consider nor determine any question that has not been made a ground of appeal or which the appellant has not obtained leave to canvass and the respondent has not been given opportunity to be heard. It is only in very exceptional circumstances where the justice of the case demands it that the court may depart from the rule and may raise a point suo motu. When a court of appeal raises such point, then parties must be given opportunity to be heard on the point, particularly the party that may suffer punishment as the result of the point raised suo motu: See The Queen v. Ohaka (1962) 1 All N.L.R. 505, Odiase v. Agho (1972) 1 All N.L.R. (Part 1) 170 at 176, Kuti v. Jibowu (1972) 1 All N.L.R. (Part II) 180 at 192, Also v. Ashiru (1973) 11 S.C. 23, Atanda v. Lakanmi (1974) 3 S.C. 109. Echoing the judgment of this Court delivered by Fatai-Williams, J.S.C. as he was then, in Kuti v. Jibowu (Supra), my learned brother Eso, J.S.C. aptly stated the rule in Kuti v. Balogun (1978) 1 L.R.N. 353 at pp.3567 in these terms:
“One of the second defendant’s main complaints before the Judge, on appeal, was whether or not the Chief Magistrate was right in coming to the decision that he failed to rebut the presumption against him, without considering those exhibits. But what the Judge did was to make an exhaustive examination of the exhibits on his own, and raise thereupon issues which were not canvassed by the parties either at the trial or on appeal before him. We think there is a lot of force in the submission of counsel for the second defendant that the Judge erred seriously in this regard. The issues as to: (i) the agreement, exhibit E, describing itself as the ‘hire agreement’ and not a ‘hire purchase agreement’; (ii) the Interpreter of the agreement into the Yoruba language one Onadeko not being called; (iii) the Lagos address of Gbadegesin and of Onadeko living or working next door to the second defendant; (iv) the signatures on the document not being identical; (v) the payment endorsed on the document, purportedly made by Gbadegesin, and authenticated by one Agboola, not being proved; (vi) the document referring, inter alia, to a hiring rate of £4 (N8) per day or £20 (N40) per week; and (vii) the document being meant to disguise the arrangement between the second defendant and someone; were all raised for the first time by the Judge. They were not, as counsel has rightly submitted, canvassed by either party to the case, either before the trial court or before the Judge on appeal. It was, with respect, a case of the Judge going on a voyage of his own, which conduct this court deprecated in TO. Kuti (trading as Abusi-Odu Transport) v. Oludademu Jibowu (1972) 6 S.C. 747. There, this court said that in this type of circumstances, it is not open to a court of appeal to raise issues which the parties did not raise themselves either at the trial or during the hearing of the appeal. There could be Instances, however, when a point which has not been raised is material to the determination of the appeal. When a court of appeal feels inclined to raise such point, parties must be given an opportunity to make their comments thereupon before the court takes a decision on the point.”
I am not unmindful of the fact that except in Odiase v. Agho (Supra), which was concerned with this Court, the principle of law stated in the decisions in the cases referred to above was enunciated by this Court to correct wrongful exercise of appellate Jurisdiction by lower appellate courts. In my view, the principle of law stated in those cases is a rule of universal application to civil and criminal appeals before all appellate courts in this country including this Court. The rule is founded on fairness and the principle of natural justice, i.e. the right to be heard and the right to a fair hearing which is one of the fundamental rights enshrined in section 33 of our Constitution to which all persons in Nigeria are entitled to irrespective of their status and stations in life. The principle has always been observed by this Court and I am not aware of any appeal in this Court by a prosecutor where the Court relaxed this principle in favour of the prosecutor and to the detriment of an accused person in order to restore a conviction of the accused by the trial court when that conviction had been set aside by an appellate court.
Now in his judgment, which I had the privilege of reading in advance, the learned Chief Justice of Nigeria appears to have accepted the submission of the learned Director of Public Prosecutions on the findings of facts by the Federal Court of Appeal notwithstanding the fact that the submission was raised by the learned Director without having compiled with the provisions of section 213(3) of the Constitution. Relying on the decisions of this Court in Akinloye v. Eyiyola (1968) N.M.LR. 92, Fabumiyi v. Obaje (Supra) and Balogun v. Agboola (Supra) the limed Chief Justice set aside the findings of facts by the Federal Court of Appeal and restored the findings of the learned trial Chief Judge and the convictions of the respondent. With respect, in my view, the reasoning of the learned Chief Justice might have been valid if there had been appeal on the question of facts. But there has been no such appeal. I have earlier in this judgment expressed my view concerning the authorities upon which he bases his reasons for his decision. Since there has been no appeal on the question of facts, I consider all such authorities as being irrelevant in their entirety for the correct determination of the appeal before us.
The learned Chief Justice has determined the question of facts when there has been no appeal by the prosecution on the question and when the respondent was not given the opportunity to be heard on the question. It is obvious that the very question determined by the learned Chief Justice in this manner is most essential to restoring the convictions. No reasonable tribunal will restore the convictions so long as the findings of the Federal Court of Appeal remain valid and effective. In my view, effect ought to be given to the decision of the Federal Court of Appeal on the question of facts, even if one thinks that court was wrong, since there has been no appeal on the question: Odiase v. Agho (Supra) and Melifonwu v. Egbuji (Supra). If the point was taken by the Court suo motu, the respondent ought to have been given the opportunity to be heard on the point.
Finally, with all due respect and in my considered opinion, it is contrary to the provisions of section 33 of the Constitution, contrary to the principle of natural justice and contrary to the established rule of practice of this Court which has the force of law to set aside the findings of facts by the Federal Court of Appeal, to restore the findings of the trial court and by that exercise to restore the convictions of the respondent under the circumstances of this appeal. In my view, it is a grave miscarriage of justice to restore the conviction.
Consequently, though I agree with the interpretation put on section 168 of the Customs & Excise Management Act 1958 by the learned Chief Justice, I am regretfully unable to agree with his decision that the appeal be allowed and the convictions and sentences be restored. Although the point under the ground of appeal No. 1 was well taken and the appellant has succeeded on it but for the reasons I have stated in this Judgment I would dismiss the appeal and affirm the decision of the Federal Court of Appeal in accordance with the provisions of the proviso to section 26(1) of the Supreme Court Act 1960.
IDIGBE, J.S.C.:
Having previously read in draft the judgment just delivered by my learned brother, Fatai-Williams, C.J.N., I wish to state that for the reasons stated in that judgment I agree that this appeal be allowed. However, I would like to make a few but short comments on my own on two aspects of the issues raised in this appeal and also arising from the dissenting judgment just read by my learned brother Bello, J.S.C. of which I also had a preview. Section 168 of the Customs and Excise Management Act 1958 (hereinafter referred to as “Act No.55 of 1958”) with which we are concerned in this appeal is, indeed, so far as I know unique. I am unable to find any piece of legislation in part materia in other common law jurisdictions; certainly there is no provision similar to it in the Customs and Excise Act 1952 (United Kingdom: as amended from time to time) on which some of the United Kingdom decisions relied on by both the Court of Appeal in their judgment and learned counsel for the respondent in argument in both the Court of Appeal and the trial court, are based. Under section 168 of Act No. 55 of 1958 the law presumes in favour of the prosecution that a person accused of doing the act, which constitutes an alleged offence under the Act, knowingly or with a specified intent did so knowingly or with the specified intent; and so if the accused be alleged to be knowingly concerned in the fraudulent evasion of a special Prohibition Order made under the Act, the allegation is by virtue of this section presumed in favour of the prosecution. In each of these circumstances the onus of disproving these allegations is by virtue of section 168 placed on the accused. Certainly he would have done so if he succeeded in convincing a court that he was at all material times to the alleged offence Ignorant of the Prohibition Order; and it is in this sense that section 22 of the Criminal Code is relevant. I need only mention here that the case of Mohammed Husain (1969) 53 C.A.R. 448 cited to us by learned counsel for the respondent is, indeed, of very little relevance, If at all on this issue; and this is because of the special provisions of section 168 aforesaid. The law also allows that the burden on the accused in proving lack of knowledge is to be discharged on a balance of probability.
Balance of Probabilities:
In civil cases the standard of proof is taken as satisfied upon a balance of probabilities; it is otherwise in criminal cases where the standard of proof requires that the matter in Issue must be proved beyond reasonable doubt. It is well known that in criminal matters when a statute reverses the principle of common law and places on the accused the burden of disproving certain matters which the statute has assumed in favour of the prosecution, the standard of proof required of the accused is that which pervades in trials of civil cases generally (i.e. proof on a balance of probabilities is required); but it Is also well known that within this formula (i.e. balance of probabilities) the standard required will be affected by variations in the subject-matter or even the allegations made in connection with the subject-matter.
In this connection reference may be made to the observations of Denning, L.J. (as he then was) in Bater v. Bater (1951) p.35 at 37;
“In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.
As Best, C.J. and many other great judges have said, ‘in proportion as the crime is enormous, so ought the proof to be clear.’ So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court when considering a matter of fraud, will naturally require a higher degree of probability than that which it would require when asking If negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but “still it does require a degree of probability which is commensurate with the occasion…”
The position, therefore, is that the more serious the allegation such as an allegation of fraud or fraudulent evasion the higher will be the required degree of proof, although it will not reach “the criminal standard.” In this connection and particularly with reference to the last observation, I will refer to Hornal vs. Neuberger Products Ltd. (1957) 1 Q. B. 247; the headnote to the report reads:
“In a civil action where fraud or other matter which is or may be a crime is alleged against a party … the standard of proof to be applied is that applicable in civil actions generally, namely, proof on a balance of probability, and not the higher standard of proof beyond all reasonable doubt required in criminal matters; but there is no absolute standard of proof, and no great gulf between proof in criminal and civil matters; for in all cases the degree of probability must be commensurate with the occasion and proportionate with the subject-matter. The elements of gravity of an issue are part of the range of circumstances which have to be weighed when “deciding as to the balance of probabilities.”
The headnotes completely reflect the views of Denning & Morris, L.JJ., in their several judgments in that case.
From the above it becomes clear that it is not so much that different standard of proof is required in different circumstances depending on the gravity of the issue but that the gravity of the issue is, indeed, part of the circumstances which the court must take into consideration in reaching its decision on the question whether or not the burden of proof has been discharged. So that the more serious the allegation, the more cogent is the evidence required to lead the court to the conclusion that it is very unlikely that the allegation is, indeed, true. In this case the appellant is charged with the serious offence of fraudulent evasion of the Import Prohibition Order (1978) in that he imported as many as 13 bundles of carpets into the country in spite of a Government Order prohibiting such importation. When first told (in reply to his inquiry as to the amount of duty payable on the goods) that in bringing the goods into the country he was in contravention of the law, there was according to the recorded evidence no show of concern or alarm at the existence of such an Order or law. Later when taken before two other subordinate customs officers and, again, interrogated on the subject he did not claim ignorance of the Prohibition Order; and finally even when having been duly cautioned by the police he wrote out his statement Exhibit ‘D’ and stated therein that he was told that the goods were “prohibited items” he still did not claim ignorance. Certainly the court is entitled to a better performance from the respondent than appears on the record if he is to overcome the likelihood that the allegation against him is, indeed, true. No question arises as to the weighing of his evidence on a balance of probabilities. Not only was his performance in the witness box even from printed evidence unconvincing, the learned Judge was, in my view, entitled to regard him as untruthful especially on the question whether or not he had prior knowledge of the Import Prohibition Order before 4th August, 1978.
On the basis of the foregoing analysis of the phrase “balance of probabilities” a careful examination of the facts in this case so far as concerns the defence and what the learned trial Chief Judge made of it leaves me in no doubt whatsoever that the trial court rightly came to the conclusion that the allegations against the appellant in both counts in the information were established. I cannot, for my part, find any justifiable basis upon which the Court of Appeal interfered with the findings of fact on the relevant issues in the matter before the learned trial Chief Judge. No doubt, the court was led to the exercise because it took a wrong view of the effect of section 168 aforesaid. It was the view of the court that the prosecution had (as they were bound under the general rule of criminal trials to do) neither proved (a) the Import Prohibition Order nor (b) that the accused was concerned with the fraudulent evasion of the order. The trial court had taken the view that by virtue of section 168 aforesaid the prosecution had no such duty. According to the Court of Appeal, section 168 did not place the appellants in so favourable a position; that being so the learned Chief Judge erred not only in his findings on those aspects of the matter but also in the assessment he made of the denial by the respondent of the charge; a bare unchallenged denial was, in the circumstances, sufficient.
Surely everyone who has had the privilege of exercising the functions of a “trial Judge” knows that his decision to accept or reject a particular testimony does not rest merely or solely on such matters as whether a particular question was put in cross-examination by the opposite party to the witness whose evidence is rejected or accepted; or that a particular statement of a witness was not challenged in cross-examination. These may well form part of the matters for consideration by the trial Judge in deciding whether or not to accept a particular testimony of a witness. What stands out above all these are (1) the singular advantage of the trial Judge who has the opportunity of watching the witness in the course of his testimony and (2) the fact that he has to consider the case presented before him in its entirety. Was the respondent in this appeal truly ignorant of the law relating to the prohibition of importation of carpets? Was he “playacting” at the airport on the morning of his arrest? Surely, the learned trial Judge was entitled to take into consideration in reaching his decision on these vital questions the singular failure of the respondent to show any alarm or acclaim his ignorance, even if feebly, when it was first brought to his knowledge that he was involved in bringing into the country a large quantity of carpet the importation of which was prohibited by law. These matters leave me in no doubt that the plea of ignorance is not available to the respondent in the entire circumstance of this case. It is my view that the learned trial Judge rightly rejected it.
Was the Court of Appeal right in overturning the findings of facts by the learned trial Chief Judge on this? In Chief Victor Woluchem & Others vs. Chief Simon Gudi (1981) 5 S.C. 291 at 326 Nnamani, J.S.C. observed:
“It is now settled that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not one business of a court of appeal to substitute its own views for the views of the trial court…”
As I said earlier, and with very great respect to the Court, I find no justifiable basis for the interference by the Court of Appeal with the findings of fact by the trial court in the case in hand. For my part, there is no need for a specific appeal by the prosecution on this point before we can deal with it. In my respectful view the Court of Appeal was led to interfere with the findings of fact on the particular issue of “fraudulent evasion” as alleged in the charges in the Information because it took an incorrect approach on the interpretation of section 188 of Act No. 55 of 1958.
The position in this case may thus be stated: The learned trial Chief Judge takes the view that (1) as a matter of law (i.e. under section 168 aforesaid) the prosecution need not prove the existence of the Import Prohibition Order in question, nor need they prove that the accused was “knowingly… concerned with the fraudulent evasion of it” (2) the law has placed on the accused (i.e. the respondent) the burden or onus of disproving the matters set out in (1) the law having presumed in favour of the prosecution, by virtue of the said section, that those allegations are established; (3) he (the learned trial Chief Judge) has found as a fact that pursuant to the said requirement of section 168 aforesaid the accused or respondent failed to disprove what under the said section he (the respondent) was enjoined to disprove. The Court of Appeal says that the learned trial Chief Judge was wrong in holding as he did, because he placed a construction on section 168 aforesaid which he was not entitled to do. In my view the Court of Appeal has, with much respect to that Court, taken an erroneous view of the provisions of the section (i.e. section 168 of Act No. 55 of 1958); the learned trial Chief Judge’s construction of the said section is, in my view, the correct legal construction to be placed on that section. There is an appeal by the prosecution from this erroneous construction taken by the Court of Appeal on the obligations placed on both the respondent and the appellants by the section in question. This appeal by the prosecution is from the entire judgment of the court (which includes its wrong decision on the said section 168); and, in my view, it is not necessary, in the circumstances, for the prosecution to appeal specifically on what elsewhere in the judgments of this court in this appeal, has been called ‘findings of facts’ upon which the respondent was disbelieved on his belated claim of ignorance of the Import Prohibition Order. The Court of Appeal in my respectful view was not competent to make specific findings of fact on the matter; it not being a court at nisi prius. In any event, the appeal was argued on both sides on the basis that the entire Judgment of the Court of Appeal was either right or wrong depending on the contentions on behalf of the parties as they were separately put to us as to the proper legal construction to be placed on section 168 of Act No. 55 of 1958. In any event, it should, in passing, be pointed out here that there was no objection either in limine or arguendo on behalf of the respondent on the propriety of entertainment by this court of any argument which amounts to an attack on the said ‘findings of fact’ by the Court of Appeal, at all or, on the ground that no specific ground of appeal to that effect was filed. It only remains for me to observe that an issue, regarding the correct view on the question of the burden of proof or when such burden shifts, under the provisions of a particular law is one of law (not of fact) and does not cease to be so merely because the subsidiary question whether it has in fact shifted involves a determination on the facts by which attempt was made to shift that burden. Further, in any event, the Court of Appeal having gone outside the province of its legal competence to determine specific issues of facts on evidence it did not receive, in my respectful view erred in law; and, in the event, this Court can and, indeed, has a duty to deal with the matter on appeal even ex proprio motu as a question of wrong application of the law.
INSCRIPTION OF THE WORDS “TRADE” & “OTHER THAN TRADE” IN THE PROHIBITION ORDER
The Import Prohibition Order relevant to the case in hand is the Import Prohibition Order (1978) published as Legal Notice No. 16 of 1978 at P. B81 of the 1978 Laws of the Federation. Paragraph 1(1) prohibits absolutely the importation of goods specified in Parts I and II of Schedule I; and item 51 in Part II of Schedule I sets down “Carpets, Carpetting & rugs.” That sub-paragraph reads: “The importation of the goods specified in Parts I and II of Schedule I to this Order is absolutely prohibited.” Subparagraph (3) of paragraph 1 reads ‘The importation of goods specified in Column 1 of parts I & II of Schedule I to this Order is prohibited except as provided in Column 2 thereof.” Schedule I is headed: “Goods Absolutely Prohibited”; Part 1 thereof is headed: ‘Absolute Prohibition (other than Trade)”; Part II thereof is headed: ‘Absolute Prohibition (Trade).” It was contended before us that in interpreting Part II of the Schedule effect must be given to the word “Trade” in bracket which is inserted at the heading of that Part of the Schedule; and that when the interpretation is carried out in this manner it means that the importation of goods listed thereunder can only become an offence if imported for purposes of trade although the phrase “for purposes of trade” was not therein inserted. To hold otherwise, it was contended, would result in regarding the addition of the word ‘Trade” as entirely useless.
Now, there is no doubt that generally a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced [see also Brett U in Attorney General vs. Lamplough (1878) Exch. D. 214 at 229]. However, one of the cardinal rules of construction is that the provisions of a statute should not be construed in such a way that they would manifestly lead to an absurdity. Although we are concerned with the heading at Part II of the said Schedule, it will not be out of place to consider the effect and result of interpreting paragraph 1(1) in the manner urged upon us, in so far as the expression “other than trade” inserted at the heading of Part I is concerned. The result then would be that when the goods listed under that plan are imported for purposes (as will be claimed by the importer) “other than trade” they must be considered not to be within the purview of subparagraph (1) of paragraph 1 aforesaid; such goods will include (a) “Pistols disguised in any form” see item 16, (b) “Materials of any description with a design which considering the purpose for which the materials (sic) is intended to be used, is likely in the opinion of the Head of State to create a breach of the peace ———” see item 13, (c) “Air pistols’ see item (1), (d) “All passenger cars of engine capacity exceeding 2500 cc’ see item 21, (e) “Implements pertaining to reloading of cartridges” see item 9, to name only a few. Such a construction of the relevant statute would, in my view, lead to manifest absurdity when read along with paragraph 1(1) aforesaid; for it makes nonsense of the expression “absolutely prohibited” in that subparagraph. Further, one may ask if it was the intention of the Legislature to make the reservation which is bound to follow as a result of placing such construction as has been urged upon us on subparagraph (1) whether it would not have been easier and clearer for the Legislature to pursue the course taken in subparagraph (3) of paragraph 1 in respect of the subparagraph in question?
However, although as a general rule of construction of statutes it is not permissible to supply omissions therein, even where such omissions are patently unintentional; yet if particular words of the statute or phrases therein are doubtful in their meaning or so obscure that they are not capable of grammatical construction, then it is permissible in order to give effect to the statute and in order to avoid manifest absurdity to reject the words or phrases as surplusage if no sensible meaning can be given to them [see R. v. Strachan (1872) L R. 7 O. B. 463 at 465, also Re Lockwood, Atherton v. Brooke (1958) Ch. 231 or (1957) 3 All E.R. 520].
Accordingly I will adopt, in this matter, the words of the learned author of Maxwell on interpretation of Statutes 11th Edition at p.228 that “Notwithstanding the general rule that effect must be given to every word, yet if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should, be eliminated. The words of a statute must be construed so as to give a sensible meaning to them if possible. They ought to be construed ut res magis valeat quam pareat’ (italics mine). Accordingly, I would reject the construction which has been urged on us by learned counsel for the respondent and hold that the importation into the country of goods listed in Item 51 of Part II in Schedule 1 of the Import Prohibition Order (1978) is, indeed, absolutely prohibited by subparagraph (1) of paragraph 1; and for the purpose of the Order it does not matter whether or not they are imported “for purposes of trade.”
As earlier stated, I endorse the reasons in the lead judgment of my learned brother the Chief Justice of Nigeria and I would also allow this appeal and endorse the orders in the said lead judgment.
ESO, J.S.C.
I have had the advantage of a preview, in its draft form, of the judgment which has just been read by the learned Chief Justice of Nigeria. I respectfully agree with the judgment. I fully subscribe to the order made by the learned Chief Justice. I have also been privileged to read, in draft, the judgment of my learned brother, Bello, J.S.C., which is a dissent from the aforementioned judgment of the learned Chief Justice. I have decided to add a few words of mine in view of the importance of the points raised in the two judgments. They are fundamental.
The facts have been well summarised in the two judgments. I may have cause to restate just some of these facts in this judgment, whenever they are necessary if only to bring out the points I intend to make, for a full appreciation of the judgment of the learned trial Chief Judge. The subsequent judgments of the Federal Court of Appeal and the judgments of this Court which have just been read and which I have earlier referred to.
The respondent was convicted by the Federal High Court sitting in Lagos (Anyaegbunam, C.J.). The conviction was set aside by the Federal Court of Appeal, and it is the Board of Customs and Excise, which is aggrieved by the judgment of the Federal Court of Appeal, that has appealed to this court on two grounds of law under s.213 of the Constitution of the Federation of Nigeria.
The respondent, Alhaji Ibrahim Barau, had brought with him from London thirteen bundles of carpet on board the Nigeria Airways Aircraft in which the respondent himself travelled. The following facts are significant: After the respondent had arrived at the airport and had been examined by one Owolabi, a preventive officer, he was brought before the 2nd prosecution witness Okpachu. The respondent informed Okpachu that he had returned to the country with thirteen rolls of carpet which were at that time already at the tarmac. Now, it is significant from the record that no reaction was shown by the respondent when Okpachu charged him with an offence of contravening the Import Prohibition Order. The examination of the witness by Chief Gani Fawehinmi who represented the respondent was also silent on his immediate reaction. Indeed, when Okpachu pointedly asked him why he should import the carpet, when, and this is important, importation of those articles was prohibited, the respondent never claimed lack of knowledge of an Import Prohibition Order in regard to carpets, nor indeed to any goods, whatsoever, for that matter. He only said he would use the carpet to furnish his company’s house at Kilometre 19 at the Badagry Express Road. In his statement to the police, which he made during the investigation of the case, the respondent admitted that he was told the carpets were under prohibited items. Yet he offered no explanation.
And this was the position until he gave evidence. His evidence has been given adequate attention in the judgments already read by this court and I need not repeat it here.
Now, I have set out all the foregoing facts so that there could be a correct appreciation of what followed in the trial court, and also of the importance which the learned trial Chief Judge attached to the dialogue between him and the respondent after he had been cross-examined by the prosecuting counsel. It was this dialogue that would appear to me to have weighed so heavily in the mind of the learned trial Chief Judge, and it was the dialogue which the learned President of the Federal Court of Appeal, in reviewing the judgment of the trial court, termed as being irrelevant. The dialogue having been fully quoted in the judgment of the learned Chief Justice, I need not repeat it but it is worth bearing in mind. These then were the facts before the learned trial Chief Judge upon which he held
“It is in evidence that the defendant brought the 13 bundles of carpet. The defendant is a businessman. In fact at the material time, he was the Managing Director of Galma Petroleum and Gas Ltd. He is now a Senator. When he was asked by the court if he knew that certain goods were prohibited from importation Into Nigeria, he hesitated for a long time and then answered “I do not know. I travel quite a lot.” It is obvious to me that the defendant told a deliberate untruth when he testified that he did not know that the importation of carpet is prohibited. At the time he imported the thirteen bundles of carpet into Nigeria, he knew it was prohibited.”
The Chief Judge did not accept the story of the respondent that he, the respondent, did not know, at the time he imported the carpets into the country, that the importation was prohibited. It seems dear to me from the record that what weighed on the mind of the limed trial Judge was the demeanour of the respondent exhibited in his long hesitation before answering what I think the Judge considered, having regard to the charge against the respondent, as a most important question. Most Important, because the charge against the respondent was that he knowingly and with Intent to evade the Prohibition of Importation Orders imported carpets into the country.
And so, the learned trial Chief Judge made a clear finding of fact, as he was fully entitled to do. It was he who saw the respondent, it was he who asked him a question, and he had the right to assess his evidence. He disbelieved him after all this process and he convicted him. The matter then went to the Federal Court of Appeal.
Issue of Law & of Fact
It may be necessary, at this stage, to say a few words on the function of a court of appeal vis a vis a trial court. There seems to be a confusion between a court of appeal’s treatment of questions of fact and questions of law which come before a court of appeal. It is now trite law that a court of appeal does not treat with sanctity a trial court’s use of the words ‘I believe’ or ‘I do not believe.’ Nor the phrase ‘I find as of a fact.’ Where a trial court fails to make use of the advantage it has of a witness before it a court of appeal is, no doubt, in as much a good position as the court of trial to deal with these facts Fabumiyi & anor. v. Oluge & anor. 1968 N.M.LR. 242 at page 247. Woluchem and ors. v. Chief Simon Gudi and Ors. (1981) 5 S.C. 291 at p.326; see also Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582. The court of appeal has to decide first, as a matter of law, that a trial court failed to make use of the advantage it had of seeing the witnesses before it before proceeding to substitute as a matter of fact its own finding made on the printed evidence. A court of appeal is not per se a fact finding court. It is essentially a court of review. It reviews the application of the facts which have been found by a trial court to the circumstances of the case before that court. It is only where there is a wrong application of such facts that the court of appeal interferes. Where however the court of appeal finds as a matter of law that the facts have been correctly applied it does not interfere. The court does not proceed any further to deal with facts. See Akinloye and anon v. Eyisola and anor. (1968) N.M.LR. 92. This fine distinction is very important for it goes into the jurisdiction which a court of appeal exercises under the Constitution. While appeal to the court of appeal on the Issue of law is as of right, an appeal on the facts is with leave of the court from where the appeal lies or the court to which the appeal lies.
The first thing a court of appeal learns is that it is not a court of trial. It is not out to try a case, find the facts, or assess the witnesses. See the admonition of this court to the defunct Western State Court of Appeal in Balogun and ors. v. Agboola (1974) 1 All N.LR. (Part II) p.66. Witnesses are not before a court of appeal. Such court deals only with printed record and where it has cause to deal with facts, on printed evidence. The other evidence, the important one, evidence of witnesses where demeanours are observed and manners of witnesses help the decision on credibility, is absent. Where therefore a trial court fails to apply the facts, which it has found, correctly to the circumstances of the case before it, and there Is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law and not of fact. When the court of appeal finds such application to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not law. Where the court of appeal interferes in such case and there is a further appeal to a higher court of appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower court of appeal is a ground of law and not of fact. It is only where there is an appeal against the finding made by the court of appeal in this exercise that issues of fact arise and leave will be required.
Care must be taken to distinguish a circumstance of this nature from a complaint simpliciter, that the decision of the trial court is either against evidence or weight of evidence or contains unresolved contradictions in the evidence of the witnesses. For in this latter set of circumstances what is being alleged is purely a ground of fact that requires leave for an appeal to a Court of Appeal or a further Court of Appeal. See x.213(3) and x.214(3) of the Constitution of the Federation 1979.
The present respondent appealed to the Federal Court of Appeal on the question of his knowledge vel non of prohibition from importation of goods generally, and carpets in particular to this country. He alleged misdirection in the trial court. That misdirection was an issue of law though the legal misdirection was as regards the application of facts to the circumstances of the case by the trial court. What really matters is the substance of the grounds of appeal. A ground of appeal on the facts could be cleverly couched as a ground of law it does not make it a ground of law while a ground of law could be couched as a ground of fact it does not make it a ground of fact.
In my respectful view the substance of the grounds of appeal as argued in the Federal Court of Appeal on the issue of the application of the facts before the trial court in this case could only, again for emphasis, in substance, be grounds of law. If however, as it would appear, the Federal Court of Appeal treated the grounds as grounds of fact then, with respect, they were wrong.
For in the consideration of the appeal before them, the Federal Court of Appeal seemed to have gone on a voyage of their own. For instance, the learned President of the Court alluded in his judgment to the nature of the business of the respondent or his company as if it was the nature of the business that operated in the mind of the learned trial Chief Judge, whereas what the learned trial Chief Judge referred to in deciding the issue of knowledge in the respondent was the fact that a well travelled businessman, not the question of the nature of his business, should know that there is a ban of some sort on the importation of goods Into the country. The question of failure by the trial court to make a finding on the nature of the business of the respondent was never in issue nor was the issue of the respondent being a Senator at the time of the commission of the offence in issue either. These were new importations by the Federal Court of Appeal into the case. See the case of Kuti v. Balogun (1978) 1 S.C. 76. It is these importations, I think, that led the Federal Court of Appeal to proceed to make their own findings of fact on the case. As that court was not justified to make findings of fact in this case, an appeal to this Court from the Federal Court of Appeal requires no leave.
With utmost respect therefore, this cannot be a case upon which one could invoke s.213(3) of the Constitution and seek leave to appeal to this Court on the grounds of fact. It is significant that, in fact, no leave was sought, no such leave was necessary and learned counsel for the respondent, a Senior Advocate of Nigeria, never made, and rightly in my respectful view, any issue of this being an appeal on the grounds of fact throughout his submissions before us. This, with respect, is a case in regard to which both sides had adequate opportunity of a fair hearing and they made full use of it.
Balance of Probabilities:
Now to come to another topic, that is the issue of balance of probabilities. The scale of justice is held evenly between two opposing sides until that scale is tilted by evidence or law in favour or against a party.
In this case however, the learned trial Judge has found that the respondent lied on a most particular ingredient of the offence against him. This ingredient is knowledge, which to succeed, he has duty to disprove. There must be credible evidence to go into the scale of justice before it tilts in favour of a party whose duty it is to provide evidence. Where there is no such evidence the question of proof or disproof on the balance of probabilities does not arise.
Onus of Proof:
And to deal with the issue of onus of proof while dealing with the question of balance of probabilities. On the issue of onus of proof I am of the respectful view that the position of the law is as follows: Generally, in all criminal cases, the onus lies on the prosecution to prove its case beyond any reasonable doubt. That onus remains on the prosecution throughout the trial. To establish the onus, there must be facts as accepted by the trial court, which accepted facts must show per reasonable adventure that the accused is guilty of the charge. There are however exceptions to this general rule of onus of proof being on the prosecution in a case against an accused person. Where the statute creating the offence places the onus of disproving certain facts on the defence, as in the present case, whereby the Customs and Excise Management Act places the onus of disproving certain facts on an accused person, or in a case where the accused person has raised a plea of alibi or insanity, the onus of establishing that plea, or disproving the presumption against him under the statute, as the case may be, is on the accused person. He has the duty to establish the onus placed upon him on the balance of probabilities. He does not establish a proof beyond reasonable doubt. In so establishing the proof what is considered by the court, as I have earlier pointed out, is credible evidence, just as credible evidence is required in the case where the prosecution has the onus to prove the guilt of an accused person beyond reasonable doubt. In other words, it is only evidence as found to be true by the trial court that will go into proof or disproof, as the case may be, either in proof beyond reasonable doubt or on the balance of probabilities. It is for the trial court to accept or reject the evidence adduced by the prosecution or the accused in a case. This process must however be on the accepted principles. If the trial court rightly rejects the evidence, that is the end of the matter. The prosecution has failed in its case or where there is a shift of onus, the accused has failed to discharge the onus placed on him in which case there is no question even of examining the balance of probabilities. The question of weighing evidence does not arise. If the court accepts part of the evidence it is such part as accepted that goes into the imaginary scale. Where the court falls to adopt the accepted principles in accepting or rejecting evidence as where he fails to make use of the opportunity he has, in seeing the witnesses, the court of appeal on review of the case is in the same position as the trial court.
The learned trial Chief Judge holding the scale of justice in this case, was eminently right In my view, to find against the respondent whose evidence he has rejected. It is rather unfortunate that the learned President of the Federal Court of Appeal could not see the link between being a Senator and importation of carpets. If as the Federal Court of Appeal noted, at the time of the trial the respondent was a Senator and he did have to hesitate for a long time before finding an answer to what everyone in this country knows that certain goods are prohibited from importation though one may not know the specific goods so prohibited, then I can very well understand why the learned trial Chief Judge held as he did. I agree with my Lord the Chief Justice of Nigeria that the Federal Court of Appeal is certainly in error in upsetting this finding of the learned trial Chief Judge.
The Laws are made for a society and the law cannot exist in vacuo. The prohibition of some goods from importation into this country is such a notorious fact that every court has to take judicial notice of the fact that every reasonable man in this country knows or should know that we live in a society where there is no free importation of all goods. It is true, as I have said, one may not know specifically offhead which particular goods were prohibited from importation but to draw a long blank, and later a denial when asked broadly if one knows that certain goods were imported is to give a court reasonable cause to disbelieve such denial and a person making such denial after such a long hesitation could not be speaking the truth.
Indeed, I believe it is the special circumstance of this country that leads to the enactment of s,168 of the Customs and Excise Management Act 1958. The provision has been quoted and dealt with in full in the judgment of the learned Chief Justice. I entirely endorse the reasoning of the learned Chief Justice in his interpretation of the provision of the Customs and Excise Management Act 1958.
All I would add to that reasoning is that I have not been able to find a provision equivalent to s.168 of the Customs and Excise Management Act 1958 in any other Jurisdiction. It is a provision that totally reverses, in so far as offences under the Act is concerned, the age long common law burden of proof in the prosecution. It makes a complete and unmistakable shift of the burden to the accused person. It places against him a presumption of mens rea in the charge against him under the Act. And in this case, the respondent is presumed to have knowledge of a fraudulent evasion of the Import Prohibition Order applicable to the goods he imported. All the prosecution has to prove is that the goods have been imported. The presumption is also against the accused person that he has knowledge that the articles are prohibited from importation.
Ignorance of the Law:
I will now deal briefly with the question as to whether Ignorance of the law is a defence under the Customs and Excise Management Act. Ignorance of the law cannot be a defence. The Customs and Excise Management Act 1958 is, in every way, a special legislation whereas the Criminal Code Act which permits the defence of ignorance of the law in certain cases is a general legislation. The Customs and Excise Management Act 1958 is an Act subsequent to the Criminal Code Act. It is an accepted canon of construction that a general enactment is pro tanto avoided by an express provision in a subsequent enactment which is entirely inconsistent with the general enactment. See Pilkinton v. Cooke (1847) 16 M & W 615; Mount v. Taylor (1868) LR. 3 C.P. 645. The special enactment in a subsequent statute is however not a repeal of the provision of the previous general statute. Once the subsequent special enactment is contrariant to the previous general enactment the general provision does not apply to the special enactment although the general provision would remain in force: Minfin v. Attwood (1969) LR. 4 Q.B. 330 at p.340 as per Hannem J. To my mind, the provision of the Criminal Code as to ignorance of the law being a defence, contained, as it is, in a general legislation, could not be used to avoid the provision about the shift of onus of proof as contained in s.168 of the Customs and Excise Management Act.
It is for all these reasons therefore, and the reasons given by the learned Chief Justice of Nigeria that I hold that the appeal succeeds. The appeal is allowed with order as contained in the judgment of the Chief Justice of Nigeria.
ANIAGOLU, J.S.C.:
I have had the advantage of reading in draft the judgment Just delivered by my learned brother, Fatai-Williams, Chief Justice of Nigeria, and I am in complete agreement with him that this appeal should be allowed; the judgment of the Federal Court of Appeal set aside, and the judgment of the Federal High Court restored with an additional order that the carpets be and are hereby forfeited for the purpose of their being destroyed.
I would ordinarily have confined myself only to this concurring statement but having had the advantage of reading in draft the dissenting judgment of my learned brother, Bello, J.S.C., I consider it necessary to add a few words in elaboration. The learned Chief Justice has fully dealt with the facts of the case and I need not go over them again.
The gist of the counts with which the respondent is charged in
Count 1 is that he knowingly was evasion concerned in a fraudulent evasion of Import Prohibition Order 1978 applicable to 13 bundles of carpets thereby committing an of offence under section 145(b) the Customs and Excise Management Act 1958; and in
Count 2, that he was, with intent to evade the prohibition imposed on importation of carpets concerned in importing the 13 bundles of carpets and thereby offended the Import Prohibition Order 1978, thereby committing an offence under section 44(1)(b) of the Customs and Excise Management Act 1958.
The Import Prohibition Order 1979 LN. 16 of 1978 which came into force on 1st April 1978 was an order made by the then Federal Commissioner of Finance, Major General James Johnson Oluleye, which, by its paragraph 1(1), Absolutely Prohibited he Importation of the goods specified in Parts I and II of Schedule 1 of the Order. Under No.51 of Part 11 of the said first Schedule “carpets, carpeting and rugs (Tariff Nos. 58.01 to 58.02)” are absolutely prohibited from importation (see page BB2 of the 1978 Laws of the Federal Republic of Nigeria)..
The offences alleged in the two counts of the charge were said to have been committed on 4th August 1978. That was before the coming into force of the 1979 Constitution and before the coming into force of LN. No.10 of 1979 (Import Prohibition Order 1979) which revoked the Import Prohibition Order 1978 and all amendments made thereto see page B20 of the 1979 Laws of the Federal Republic of Nigeria. The present appeal is therefore being decided upon the law in force at the time when the offences were committed. A fortiori, the Constitution in force at the time was the Constitution of the Federation, 1963, No.20 of 1963.
The gravamen of the appeal appears to lie in two submissions:
(a) Was the Court of Appeal right in its direction as to the onus of proof in respect of section 168 of the Customs and Excise Management Act 1958? In other words, in the face of the evidence, had the prosecution discharged the onus placed upon it in accordance with the law?
(b) On the assumption that the state of the law is that section 168 has shifted the burden of disproving knowledge and intent to the defendant in other words that the law presumes knowledge and intent against the defendant, had the defendant discharged the burden placed upon him, by giving adequate explanation, in respect of the 13 bundles of carpets, bearing in mind that for him to discharge the onus, he need only discharge the burden placed upon a party in a civil case, namely, by proof on a balance of probabilities (Onakpoya v. the Queen (1959) 4 F.S.C. 150 at 152: R. v. Cohen (1951) 1 All E.R. 203 at 206).
By section 168 of the Customs and Excise Management Act 1958, No.55 of 1958, in any prosecution for an offence under the Customs and 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 lie on the defendant. The forfeiture of goods improperly Imported (by section 43 of the same Act No.55 of 1958) is mandatory. Where –
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(b) “any goods are imported landed or unloaded contrary to any prohibition”
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those goods shall be forfeited (liable to forfeiture” altered to “forfeited” by No.10 of 1972):’
Again, by section 166(2)(g) where in any proceedings relating to Customs and Excise any question arises as to the place from which any goods have been brought or as to whether or not
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(g) any goods are or were goods prohibited to be imported, exported or carried coast wise, then where those proceedings are brought by or against the Attorney-general of the Federation, the Board or an Officer or (added by Decree No.44 of 1956) having been commenced by the Police, are continued by the board or an officer, the burden of proof shall lie upon the other party to the proceedings.”
At page 109 of the Record lines, 13 to 29 the learned President of the Court of Appeal held:
“Reviewing the authorities both in this country and in England I am of the firm opinion that for an offence under Count 1 in the present appeal that is a charge under section 145(b) of the Customs and Excise Management Act, 1958 the prosecution had a duty to give sufficient evidence as would be able to point to the fact that the appellant was “knowingly concerned in any fraudulent evasion … of any such prohibition.” It is not enough as I have already pointed out, and as was also stated in Dada’s case, for the prosecution to prove importation and keep quiet. In my opinion at such a stage the provisions of section 168 of the Customs and Excise Management Act, 1958, have not been called into action. It is for the prosecution to show that the defendant’s actions generally give a prima facie proof of having knowledge and intent to evade.”
The question is: Is the direction right or is it a misdirection having regard to the provisions of section 168 aforestated? Again, in the same page lines 29 to 40, the learned President of the Court of Appeal continuing on the issue of knowledge and Intent, had this to say:
“For an absolute liability to be created the statute must be very specific and must not, in my opinion, use such terms as “knowingly and with intent to evade.” This is the issue to which the learned Chief Judge in this case had not adverted his mind as a result of which he misdirected himself on the issue before him and dwelt on the issue of ignorance of the law. But even on this score I am of the view that in cases of this nature the defendant cannot be convicted unless it can be shown that he has Intent to evade the prohibition.”
As I have already stated the Constitution in force when the offence alleged in this appeal was committed on 4th August 1978 was the 1963 Constitution, No.20 of 1963, and it could be argued that by reason of the provisions of section 22(4) of that Act which state that
“every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty,”
section 168 which places the onus of proof upon an accused person in the Customs case is unconstitutional. The answer to this is to be found in the proviso to that subsection which reads:
“provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
It is true that in Regina v. Hussain (1969) 2 Q.B.D. 567 the Court of Appeal in England, In the course of interpreting the words “knowingly concerned in” in section 304 of the Customs and Excise Act 1952, stated, at page 572 (per Widgery, L.J.), that
“it is essential that he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently. But a is not necessary that he should know the precise category of the goods the importation of which has been prohibited.”
But nowhere in the English Act is there the equivalent of our section 168 of the Customs and Excise Management Act and therefore the English Act, to that extent, is not in pari materia with our own Act. Therefore, Regina v. Hussain (supra) and all other English cases decided in that vein are inapplicable, thereby making irrelevant the cases of Frailey v. Chariton (1920) 1 K.B. 147 dealing with the offence of “knowingly harbouring prohibited goods”; R. v. Franks (1950) 2 All E.H. 1172 which concerned the offence of importing prohibited goods, and Garrett v. Arthur Churchill (Glass) Ltd. and Anr. (1969) 2 All E.R. 1141 in which the defendant was charged with being “knowingly concerned in the exportation of goods with intent to evade … prohibition.”
On the issue of “fraud,” I am in respectful agreement with the views expressed thereon by the learned Chief Justice. The proof of the “fraud” contemplated in the Customs and Excise Management Act is not as traditionally required in an action of deceit as decided in Derry v. Peek (1889) 4 A.C. App. In the Customs Act it simply means “dishonesty’. Since under section 168 the onus is on the respondent of disproving that he committed the act complained of knowingly or recklessly or with a specified intent, the presumption is against him in the absence of his disproving that fact and by section 4(b) of the Evidence Act the Court may regard a fact presumed against the respondent as proved “unless and until it is disproved. ‘The duty of an appeal court in relation to issues of fact found by a trial Judge has been laid down in a long line of cases over the years. This duty is well spelt out in the opinion of Lord Shaw in Clarke v. Edinburgh and District Tramways Co. Ltd. (1919) S.C. (H.L) 35 at 37 cited with approval by Viscount Sankey, L.C., in Powell v. Streatham Manor Nursing Home (1935) A.C. 243 at 250. Said Lord Shaw:
“in my opinion, the duty of an appellate court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case In a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”
The learned Chief Judge saw the appellant give evidence. He watched his demeanour and noted the hesitancy with which he testified that he did not know of the prohibition of importation of the goods. He was satisfied, by closely scrutinizing the way he gave his evidence, that he was not a witness of truth. Any one conversant with trials at nisi prius knows that a trial Judge can quite easily determine the veracity of a witness by closely observing how he gives his evidence in the witness box. Often under cross-examination, but sometimes even in his evidence-in-chief, a witness can quite easily give himself away and belie his testimony in more ways than one.
One is reminded of the well-known passage in Lord Shaw’s opinion in Clarke v. Edinburgh and District Tramways Co. Ltd. (Supra) at p.36 where he said that:
“Witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.”
The three principles laid down by Lord Thankerton in Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582 at 587 were as valid in that case as they are in the instant appeal:
“i. Where a question of fact has been tried by a Judge without a jury and there is no question of misdirection of himself by the Judge, an appellate court which Is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge’s conclusion.
- The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
iii. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”
My brother, the learned Chief Justice, has carefully, in his judgment, noted our Nigerian authorities on the issue, but I might be permitted to refer to the 1898 case of Coghlan v. Cumberland (1898) 1 Ch. 704 at 705 where Lord Lindley, M.R., dealing with the findings of fact by a trial Judge who sat without a jury and the duty of an appeal court in relation thereto, stated that:
“When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses.”
The Chief Judge who saw and heard the respondent give evidence was satisfied, with reference to his demeanour, that the respondent was lying when he said he did not know of the prohibition and that he was merely “playacting” and in effect bulldozing himself through the Law, when he went to the Custom Officials and showed them the carpets. That was a finding of fact which he was advantaged to make having seen and heard the respondent. The Court of Appeal, or Indeed, this Court, has not the same advantage and therefore Is not in a position to substitute Its own finding, based on credibility for that of the trial court. Lord Halsbury, L.C., over seventy years ago, in Montgomerie & Co. v. Wallace-James (1904) A.C. 73, said at page 75:
“But where no question arises as to truthfulness, and where the question is as to the proper Inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the Judges of an Appellate Court.”
I am therefore of the view that the Court of Appeal was wrong in making that substitution. To argue that there was no appeal against the finding of fact by the Court of Appeal is in effect to state that there was no appeal against the substitution made by the Court of Appeal a substitution which, with respect, it was not entitled, in the circumstances of this case, to make.
Finally, the result of this judgment would mean the setting aside of the judgment of the Court of Appeal and a restoration of the judgment of the Federal High Court with all the consequences to the respondent that that would entail. But the fact that a consequence of the order of this Court an order which legally flows from the result of an appeal and which in law this Court should make would be unpalatable, would not be a reason for shrinking from the making of the order. The duty of this Court, and indeed, of all courts, is to ascertain the law and give full effect to it. To allow the judgment of a court to be determined not from the logical result of legal reasoning but by the possible consequences to an appellant, is to depart from the arena of precise law and wade into the muddy waters of political science.
I have given thought to the sentence passed by the High Court on the respondent but as there was no appeal against sentence to the Court of Appeal and no power in this Court to interfere with sentence where there is no appeal against sentence (see: Usen Friday Ekpo v. The State (1982) 6 S.C. 22) 1 say nothing as to the sentence.
In the result this appeal must be allowed, and is hereby allowed. I abide by all the consequential orders made by the learned Chief Justice in his judgment.
NNAMANI, J.S.C.:
I have had the advantage of reading in draft the judgment just read by the learned Chief Justice of Nigeria. I agree with his reasoning and conclusions.
I would only add merely by way of emphasis that this case appears to me to revolve around section 168 of the Customs and Excise Management Act 1958 the wordings of which have been set down in the judgment of the learned Chief Justice. Not only does the section apply to all the provisions of the Customs and Excise Management Act 1958, but as there is no similar provision in the Customs and Excise Act 1952 of England the English decisions on which the Federal Court of Appeal relied, particularly R. v. Hussain (1969) 2 All E.R. 1117, were not applicable. The effect of section 168 on this case was tremendous. It imputes to the respondent herein intent to evade (Count 2) and being knowingly concerned with fraudulent (or dishonest) evasion (Count 1). The burden is placed on him of disproving such’ intent and knowledge (See Board of Customs v. Okoro (1971) 2 All N.LR. 314, 320) although such a burden can be discharged on a balance of probabilities. The burden would seem to be, as was stated in R. v. Cohen (1951) 1 All E.R. 203 at 207,
“if he has satisfied you, acquit; if your minds are in reasonable doubt, acquit: if he does not satisfy you, convict.”
It follows in my view too that the Federal Court of Appeal was in error in holding that the prosecution had to lead sufficient evidence to establish a prima facie case before section 168 can spring to action. I do not myself believe that the prosecution should not lead evidence or indeed cross-examine the accused but when section 168 of the Customs and Excise Management Ad 1958 is taken together with section 166(2)(g) of the same Act, the evidence to be led by the prosecution is limited indeed.
Although the issue was not seriously canvassed before us it is nevertheless necessary to consider, albeit briefly, whether the Customs and Excise Management Act being an existing law under the Constitution of the Federal Republic of Nigeria 1979, section 168 thereof is unconstitutional as being inconsistent with section 33(5) of that Constitution. The short answer is that it is not, by virtue of the proviso to the said section 33(5) which states “Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” The relevant Constitution in force at the time this offence was committed was the Constitution of the Federation of Nigeria No. 20 of 1963. Section 22(4) thereof is directly in point and the argument used in relation to section 33(5) of the 1979 Constitution of Nigeria applies.
Without restating the facts of this case as they have been adequately set down in the learned Chief Justice’s judgment, I would accept several factors as being relevant in determining whether the respondent discharged the onus placed on him by section 168 of the C.E.M. Act 1958. The factors include the evidence that it was the respondent who on his arrival at Murtala Mohammed Airport invited the Customs Officers to come and put a duty on the goods he arrived with; the evidence that the respondent intended to use the carpets in his private home along Badagry Express Way (plans of the building were tendered in evidence); the fact that there was no concealment of the carpets, although as the learned Director of Public Prosecutions of the Federation submitted, one cannot readily see how 13 bundles of carpets could have been concealed. I would even say that possible ignorance of the law, though not a defence, is one of the factors that could be considered in appraising the respondent’s explanations for purposes of determining whether he has discharged the onus on him. But the learned teal Chief Judge who saw the respondent and watched his demeanour considered all the evidence before him and rejected the respondent’s explanations. In effect the burden on him was not discharged. The learned trial Chief Judge in respect of all the factors mentioned earlier disbelieved the respondent and held that he was play acting. He said:
“It is obvious to me that the defendant told a deliberate untruth when he testified that he did not know that the importation of carpet is prohibited. He was only playacting when he called the customs officers to assess the duty he was supposed to pay on the 13 bundles. He is pleading ignorance of the law which of course is no defence. Ignorantia juris non excusat.”
Perhaps I should mention that it seems significant to me that at no time from the time he first met the Customs Officers to the time he recorded his statement Exhibit D, did the respondent ever say that he did not know that importation of carpets was prohibited. I would have thought there would have been an instantaneous reaction on hearing of the prohibition instead of fixing the duty on the goods which respondent requested.
As regards the findings of fact by the Court of Appeal, it seems to me, however, after perusing the various judgments of the learned Justices of the Court of Appeal that they only ventured into a reappraisal of the evidence already evaluated by the learned Chief Judge because of the erroneous view they held as to the burden of proof under section 168 of the Customs and Excise Management Act 1958. It appears to me fairly settled now that if a court of trial unquestionably evaluates the evidence as the trial court did, then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court: Folorunsho v. Adeyemi (1975) N.M.L.R. 128 C.A.W.; A.M. Akinloye v. Bello Eyiyola & Ors. 1968 N.M.L.R. 92 at page 95. See also Lucy Onowan & Anor. v. J. J. I. Iserhen (1976) N.M.LR. 263 at 265 and Chief Victor Woluchem and Ors. v. Chief Simon Gudi & Ors. (1981) 5 S.C. 291, 326.
The only other matter I would wish to comment on briefly is the significance of the word ‘Trade’ which appeared in Part II of Schedule I of the Import Prohibition Order 197 published as Legal Notice No.16 of 1978. The subject of the importation in this case carpet appears as item 51 in that Part. I cannot but deal with the word ‘Trade’ since it is the contention of the respondent that the absolute prohibition intended to apply to goods in that Part of the order was qualified by the word ‘Trade” such that it would only apply to the goods if they were brought in for trade. Besides the word ‘Trade” has continued to reappear in all the recent legislation of that type. See Legal Notice No.10 of 1979 which repealed L.N. 16 of 1978 and also the Economic Stabilization (Temporary Provisions) Import Prohibition Amendment Order 1982 (Statutory Instrument No.11 of 1982). It is also necessary to construe it because it has long been accepted that schedules to statutes are as much part of an Act as any other and may be used in construing provisions is the body of the Act. See “Maxwell” on the Interpretation of Statutes 12th Edition p. 12. Section 1(1) of LN.16 of 1978 states quite unequivocally that
‘The importation of the goods specified in Parts I and II of Schedule I to this order is absolutely prohibited.”
Even in Part II of Schedule I where the word ‘Trade” occurs the words Absolute Prohibition are still used. To determine what meaning if any, could be ascribed to the word ‘Trade’, it is necessary to take cognizance of the wording of section 1(1) of the order as set down above. It is also necessary to have a close look at the whole of Schedule I to the order. As regards Part II, if “trade” should have such a qualifying effect on the prohibition, it would mean that so much discretion would be vested on the Customs Officers at the ports. Also looking through the goods in Part II such as cigarettes, eggs in the shell including those for hatching, live poultry fowls, ducks, geese, turkeys and guinea fowls; vegetables fresh or chilled; textile fabrics of all types; bottled beer, bottled stout; real madras cloth (“george”); footwear; chilled or frozen meat; lace etc., it is inconceivable that these could be imported on the grounds that they are not intended for trade. To determine the meaning of the word too, recourse may be had to Part I of the same Schedule which is headed “Absolute Prohibition” Other than Trade. Taken on its face value this would appear to mean that the absolute prohibition applies to the goods In that Part if they are being brought in for other purposes but trade. The absurdity of this becomes so clear when one sees that the goods Include Air pistols, Indecent or obscene prints, paintings, books, cards, engraving or any indecent or obscene articles; second hand clothing, all passenger cars of engine capacity exceeding 2,500 c.c. etc. I am inclined to accept the submission of the learned Director of Public Prosecutions of the Federation that the words “other than trade” and “trade” are merely descriptive of the goods in the relevant Parts of the Schedule. In any case, provisions in a schedule also have to be construed in the light of what is enacted in the sections. See l. R.C. v. Littlewoods Mail Order Stores Ltd. (1963) A.C. 135. Part II of Schedule I would therefore have to be construed in the light of the absolute prohibition in section 1(1) of the Prohibition Order.
I would therefore agree that this appeal ought to succeed and it is allowed. I agree with all the orders contained in the judgment of the learned Chief Justice of Nigeria.
Appeal allowed.
