3PLR – BOARD OF CUSTOMS AND EXCISE V. VIALE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BOARD OF CUSTOMS AND EXCISE
V.
VIALE
HIGH COURT OF LAGOS
3PLR/1970/26 (HC-L)
BEFORE:
BETWEEN
BOARD OF CUSTOMS AND EXCISE
AND
MAIN ISSUES
Customs and Excise-”Exportation” of prohibited goods-Prohibited goods brought to “quay or other place” for the purpose of being exported-Construction- “other place” whether ejusdem generis with “quay”-Exchange Control Act, 1962, para. 10 Fourth Schedule.
Customs and Excise-Exportation of prohibited goods-Whether intended exporter is envisaged by the provisions of the Exchange Control Act, 1962 Fourth Schedule, para.10
REPRESENTATION
Chief Somefun, for the Respondent
Ijoma, for the Appellant
TAYLOR, C.J.:- The first defendant in the Court below was charged on two counts with the following offences:—On Count 1 with bringing to the Airport, with intent to evade the Export Prohibitions, certain traveller’s cheques and currency for the purpose of bring so exported contrary to paragraph 10 of the Fourth Schedule to the Exchange Control Act 1962; and in Count 2 with making a declaration on Customs Form Sale 81 Serial No. 68/1481 which is untrue in material particulars.
The second defendant is charged alone on the third count with the offence of being “concerned in bringing to the Airport by Mrs. Janine Ernestine Viale for the purpose of being so exported the traveler’s cheques and currency found on the 1st defendant and for which she was charged on Count 1.
At the close of the case for the Board of Customs and Excise a submission of no case to answer was made by learned Counsel for the respondents. In delivering his ruling the learned Acting Chief Magistrate, as he then was, held, inter alia, that:
“The first accused is `therefore’ discharged on the 1st count and the 2nd accused discharged on the 3rd count… I hold that a prima facie case has been made for the 1st accused to answer on the 2nd count.”
The first defendant then closed her defence without calling evidence and the Court delivered judgement in which the first defendant was found guilty on the 2nd count and fined £200 or two month i.h.l. No appeal has been lodged by the 1st defendant against her conviction on count 2. The appeal before me is one lodged by the Board of Customs against the discharge of the 1st and 2nd defendants on counts 1 and 3, respectively.
The learned trial Chief Magistrate held in respect of Count 1 that:
“It was held in the case cited that Section 58 of the Customs and Excise Management Act does not embrace an `intending exporter’. It is obvious that the Act of the 1st accused at the stage she was arrested is just an `intending exporter’.
The foreign currency notes are not yet in the aircraft to bring it within the time of exportation in accordance with Section 71 (3).”
Mr. Ijoma for the appellant argued during the hearing of this appeal that the learned Chief Magistrate erred in holding that S.58 of the Customs and Excise Management Act does not embrace an “intending exporter” when his attention should have been focused on whether paragraph 10 to the Fourth Schedule to the Exchange Control Act embraced “intending exporters”. Further learned Counsel argued that that was the section under which she was charged and that “.58 merely dealt with the punishment.
Before I make reference to the relevant part of the Exchange Control Act I would like to make this perfectly clear, though I would not have though it was necessary, that the judgement I delivered in the case to which the learned Chief Magistrate referred was a judgement pertinent in and an authority only in cases in which a defendant is charged with the commission of an offence under that Act. I would quote the relevant count 1 in that case of Board of Customes & Excise v. Audu Iloja & Aother LD152CA165 of 7th March, 1966, as follows:
“That you Audu Iloja, Emmanuel Olushola Ewalomi and Saubana Akanni Yesufu on or about the 28th day of December, 1964, at Apapa with intent to evade the payment of Custom duty, were concerned in exporting a consignment of 387 bags of groundnuts valued at £1469.17.4d and chargeable with custom duty of £133.12.6d. which has not been paid and thereby committed an offence punishable under Section 58(1) (a) (i) of the Customs and Excise Management Act, 1958.”
In contrast to that is the charge in the present case which reads thus:
“That you Mrs. Janine Ernestine Viale on or about the 12th day of March, 1969, at the Airport, Ikeja, with intent to evade the export prohibition with regard thereto did bring to the Airport.
(a) U.S. Traveller’s Cheques & 22,790 £8,139. 5.Ss.9d.
(b) ……………………………………………………………………………
“for the purpose of being so exported and you thereby committed an offence contrary to paragraph 10 of the Fourth Schedule to the Exchange Control Act, 1962, and punishable under Section 58(1) (b) of the Customs and Excise Management Act No. 55 of 1958.”
Two vastly different counts for vastly different offences. How then can the court’s interpretation in one be relevant to the other.
I now turn to the wording of paragraph 10 of the Fourth Schedule to the Exchange Control Act, 1962, which reads as follows:
“If anything prohibited to be exported by any provision of Part IV of this Act is exported in contravention thereof, or is brought of a quay or other place, or water-borne, for the purpose of being so exported, the exporter or his agent shall be liable to the same penalty as that to which a person is liable for an offence to which the Customs and Excise Management Act, 1958, applies.”
The important point for consideration, therefore, is whether an intended exporter is envisaged by the provisions of this Act just quoted. I do not think there can be any controversy as to the interpretation to be placed upon the words, “if anything prohibited to be exported is brought to… for the purpose of being exported.” The words obviously include goods not yet exported but which are brought to the place of exportation for the purpose or with the object of exportation. In short then they obviously include an intended exportation.
This must embrace the circumstances of this case where the first defendant on the evidence adduced at the trial had made the false declaration and had passed through the Customs Immigration, Health and Security and was actually in the Nigeria Airways bus taking passengers to the aircraft bound for Geneva when she was arrested.
There are, however, two other matters for consideration which have given me many anxious moments and which were not raised in the Court below or in the grounds of appeal filed, but on which I invited argument. The first is the interpretation to be given to the words. “Quay or other place, or water-borne” Do these words or rather the words, “or other place” include an air-port or are the words to be interpreted by the “ejusdem generis” principle of interpretation.
At page 397 paragraph 599 of the 3rd Edition of Halsbury’s Laws of England Vol. 36 the learned Author says that:
“As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction, must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of parliament.”
In the case of The Queen v. Portugal 16 QBD 487 at 491 Smith, J., said in interpreting the words, “or other agent”:
“Moreover, the words of the section are not ‘banker, merchant, broker, attorney, or agent’ but ‘or other agent’, pointing, in our opinion, to some agent of like kind with the class before enumerated…. “
In the case of Regina v. Kaine 1901 1 KB 472 Lord Alverstone, C.J., fol-lowing The Queen v. Portugal said at page 475 that:
“We have all considered the case of Reg. v. Portugal, and, though that decision is not technically binding on this Court, we think that we ought to follow it.
This section does not apply to any person who happens to act on behalf of another; it applies only to agents of the class indicated in the precedings words of the section.”
I must, therefore, ask myself whether the words, “or other place” coming after the word “quay” ought not to be limited to places indicated by the word “quay” particularly when the words are followed by another word of a similar nature to Quay, i.e., “or waterborne”.
My attention was drawn in this respect by Mr. Ijoma, learned Counsel for the appellant to “Words and Phrases Judicially defined” Volume 4 at page 457 where the exact words, “quay or other place” is judicially defined in a Northern Ireland report which unfortunately is not available in the Court Library. It reads thus:-
“Quay or other place.
I am clearly of opinion that the words ‘or other place’ in Section 3 (1) (b) and Section 3(3) of the Act (Import, Export and Customs Powers (Defence) Act of 1939) are not to be construed as ejusdem generis with the word, ‘quay’, the effect of which would be to limit them to something like a jetty, wharf or dock bordering upon or jutting out into a harbour or sea. I read the word, ‘any’ both with the word, ‘quay’ and with the words, ‘other place’ so that the phrase in my opinion means any quay or any other place, that is, any place where goods may be assembled for exportation. Emerson v. Woods 1942 N.I. 118 per Andrews, CJ.”
In the same book at page 456 the word, “Quay” had been defined in another Irish report as, “a waterside structure of solid character for loading or unloading ships.” It is clear, therefore, that if the words, “or other place” are to bear an interpretation ejusdem generis with the previous word, “quay” they cannot connote an airport. I alive been unable to find any reference in the 3rd Edition of Halsbury to the case of Emerson v. Woods. Now the Act which was being construed in the case of Emerson v. Woods also use the same words, “Quay, or other place or waterborne” but with this exception that the original words are, “Any quay” as distinguished from our words, “A quay”. I am not at all certain at the moment whether the difference between, “A” and “any” should play a part or an important part in the interpretation to be put on the words, “or other place” though Andrews, C.J., would seem in Emerson v. Woods to have followed the line of reasoning which made the word, “any” play quite an important role.
The decision of the Chief Justice of Northern Ireland was approved in two subsequent cases in England to wit: Attorney-General for Palestine v. Fakhry ayyas 1947 AC 332 and Roe v. Henunings 1951 1 KB 676. In the former case the facts show that the goods were brought in lorries and were stopped by the police about 200 yards from the Syrian border and were taken to Samakh where the goods were seized. At page 340 of the report Lord Uthwatt delivering the judgement of the House of Lords said that:
… the phrase, ‘If any goods are brought to any quay or other place for the purpose of being exported’-and it is the phrase that has to be construed, not particular words contained in it-has to be looked at in light of the general signification of the word ‘exported’. Once the question is stated, the answer is apparent, when the provision of the Interpretation Ordinance quoted above is borne in mind. The meaning of ‘place’ is not limited by the reference to ‘quay’, and the suggestion that sea carriage alone is under contemplation is not inherent in the phase, ‘quay or other place,. The words, ‘quay or other plave’ afford, therefore, no con-text for limiting the meaning of ‘exported’. In their Lordships’ view, therefore, head (b) of S.5, sub-S. I applies where goods are brought to a place for the purpose of export by land.
“The remaining question is whether `place’ is confined in its application to a spot which possesses some characteristic other than locality. Their Lordships see no reason for accepting any such limitation.”
That possible infringements of the Act by persons traveling or about to travel by air are envisaged by the draughts men of our Act will be seen from the wording of Part I of the Fourth Schedule in paragraph 2(1) (a) (b) and (2). I would, therefore, hold that the words, “other place” in our statute should not be interpreted as being ejusdent generis with “quay” but in the broad sense of an Act dealing with exportation or importation by air, sea or land. The final matter for consideration in Count 1 are the words, “shall be liable to the same penalty as that to which a person is liable for an offence to which the Customs and Excise Management Act (1958) applies. I had at first thought that this passage was meant to say that “an intending exporter” under the Exchange Control Act shall be liable to the same penalty as that to which his counterpart would have been liable in the Customs and Excise Management Act. Further that if S. 58 of the latter Act did not specifically include or embrace an intended exporter than to what penalty is a person found guilty under the Exchange Control Act, liable? More mature consideration shows the error in this line of thought which is in fact reading into the Act what is not therein contained. In short, the true construction is that an intending exporter under the Exchange Control Act is liable to the same penalty as an exporter under the Customs & Excise Management Act.
For these reasons, therefore, I hold the view that the Court below failed to consider the provisions of the Act under which the defendants were charged but instead considered only the Act under which they were liable to be punished and the cases dealing with the latter. The appeal of the appellant, there-fore, must be allowed in respect of the 1st respondent in respect of Count 1.
As to the 2nd respondent the charge against him was that he was concerned in bringing to the Airport the infringing goods by Mrs. Janine Ernestine Viale. Now the only evidence against this defendant is that he is the husband of the 1st accused and was at the airport to see her off and interpreted the questions put to his wife by the Customs officials and the answer given by the former. If there is a presumption to be drawn from those factors that every husband is deemed to know of and about every article contained in his wife’s handbag, some of which even the owner is invariably ignorant, then it may be that the guilt of the 2nd defendant is proved. For myself, I am not prepared to draw that inference or take judicial notice of such knowledge or presumed knowledge. I, therefore, hold that the appeal of the Board of Customs and Excise as far as the 2nd respondent is concerned must fail though for different reasons to that found by the learned Chief Magistrate. The case is, therefore, sent back to the learned Chief Magistrate to call on the 1st defendant to answer to the case shown against her on Count 1. The conviction stands on Count 2 and the 2nd defendant is discharged on Count 3. The order discharging the 1st defendant on Count 1 is, therefore, set aside.
Case sent back to Chief Magistrate with directors: Conviction on Count 2 stands: 2nd Defendant discharged on Count 3: Order discharging 1st Defendant on Court I set aside.
