3PLR – FARID KHAWAN V. COMPTROLLER OF CUSTOMS
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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FARID KHAWAN
V.
COMPTROLLER OF CUSTOMS
LAGOS, 18TH MARCH, 1955
3PLR/1955/11 (SC)
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J. (NIGERIA), AND COUSSEY, J.A
REPRESENTATION
O. Davies for the Appellant.
Fatayi Williams, Crown Counsel, for the Respondent, the Comptroller of Customs.
MAIN ISSUES
GOVERNMENT AND ADMINISTRATIVE – CUSTOMS :- Suit brought at the instance of the Comptroller of Customs claiming certain penalties and also the forfeiture of certain valuables – Ascertainment of value of seized diamond – Evidence of experts – How treated
PRACTICE AND PROCEDURE – EVIDENCE:- Evidence of diamond assayer – Certificate of evaluation – Admissibility of
MAIN JUDGMENT
The following judgment was delivered:
DE COMARMOND, AG. C.J.
Farid Khawan was the defendant in Magistrate’s Court No. 1, Lagos, in a suit brought at the instance of the Comptroller of Customs claiming certain penalties and also the forfeiture of 130,000 Banque de 1’Afrique Occidentale franc notes and 1,754.04 carats of diamonds.
The following facts were accepted as proved by the learned Magistrate: on the 3rd May, 1952, Farid Khawan went to Ikeja airport to board an air-liner bound for London; he was asked to read a list of articles the export of which was prohibited or restricted and, when asked whether he had in his possession any such articles, he replied in the negative. On being further questioned he produced a bundle of 130,000 franc notes. Later on he was searched and diamonds was found in a belt which he was wearing next to his body.
The Magistrate expressed himself as satisfied that Farid Khawan was well aware that the stones found on him were diamonds, and that he took the diamonds and the French currency notes to Ikeja for the purpose of exporting them.
It is quite clear that Khawan was caught is the act of trying to leave Nigeria with prohibited exports in his possession in contravention of the Exchange Control Ordinance, 1950, and of the Orders made thereunder. No permission had been obtained, or even sought, from the Financial Secretary for such exportation.
By virtue of the provision of Part III of the Fifth Schedule to the Ordinance aforesaid, the enactments relating to Customs apply in relation to goods prohibited to be imported or exported by any of the provisions of Part IV of the Exchange Control Ordinance, 1950.
Section 22 (1) (e) of the Exchange Control Ordinance prohibits the exportation from Nigeria, without the permission of the Financial Secretary, of any “ prescribed “ articles carried on the person of a traveller or in his baggage. Paragraph 5 of the Exchange Control (Import and Export) Order, 1950, sets out that diamonds of all kinds and dies (whether mounted or not) of diamond and tools and tool parts of which the cutting edge is tipped with diamond are “ prescribed “ articles.
The penalty claimable by the Comptroller of Customs is three times the value of the goods or £500 whichever is the greater (see section 125 of Customs Ordinance as amended by the Customs (Amendment) Ordinance, 1950).
Judgment was given by the Magistrate in plaintiff’s favour on that part of the claim relating to the French notes. The claim relating to the diamonds was “struck out “in so far as the penalty is concerned but an order forfeiting one diamond gem was made. That diamond was the only one of the diamonds, found on the defendant at Ikeja and produced in the Magistrate’s Court, which was still available at the end of the trial: all the others which were in a bottle kept in the safe in the court-house were stolen one night before the conclusion of the trial.
The learned Magistrate “struck out“ the claim for the penalty of three times the value of the diamonds on the ground that no satisfactory evidence of their value had been given as laid down by section 248 (1) of the Customs Ordinance. Section 248 reads as follows:
“ (1) In all cases where any penalty, the amount of which is to be determined by the value of any goods, is sued for under the customs laws, such value shall, as regards proceedings in any Court, be estimated and taken according to the rate and price for which goods of the like kind but of the best quality upon which the duties of customs shall have been paid were sold at or about the time of the offence, or according to the rate and price for which the like kind of goods were sold in bond at or about the time of the offence, with the duties due thereon added to such rate or price in bond; and no goods shall be deemed to be of less value by reason of any damage or injury they may have sustained in the course of any attempt to destroy or make away with the same by any person offending or endeavouring to offend against the customs laws.
“ (2) A certificate as to the value of such goods under the hand of an officer shall be conclusive, and shall not be questioned in any Court. (Amended by No. 58 of 1945.)”
At the trial, one of the witnesses called for the plaintiff was Mr. Emery, a Senior Collector of Customs. He tendered in evidence a certificate as to the value of the diamonds. Learned counsel for the defendant objected on the ground that the certificate did not comply with sub-section (2) of section 248. The Magistrate then ruled that “before the certificate can be admitted there must be foundation laid and the foundation is contained in sub-section (1) of section 248”. The witness then stated that the value of the best quality of diamonds of the same kind and weight as those then exhibited in Court was approximately £7,500. He was cross-examined by defendant’s counsel and explained that he had performed, up to 1948, the duties of precious stones expert for the Government of India and knew the prices of diamonds up to the end of 1948. He further explained that he had arrived at the figure £7,500 by adding 25 per cent to the value the diamonds would have had at the end of 1948; he did so because prices have risen by 25 per cent.
The Court rejected the certificate on the grounds that it did not comply with the formula laid down in section 248 (1) and that the oral evidence given by Mr. Emery was not in accordance with the said formula.
After the rejection of the certificate by the Magistrate, the witness Emery stated that it was not possible to value the diamonds in accordance with section 248 (1) of the Customs Ordinance because in May, 1952, there was, in Nigeria, no trade in diamonds of the like kind as those produced in Court.
Later on, another witness, Mr. Nicholls, was called to give evidence of value. He is an assayer of minerals employed by the Consolidated African Selection Trust Ltd., Gold Coast. His expert knowledge of diamonds and their value is undoubted. He stated that he had examined the diamonds in question. He gave it as his opinion that they had been mined in the Gold Coast and he put their “market value“ at 64 shillings per carat.
The Comptroller of Customs appealed to the Supreme Court from the learned Magistrate’s decision on two grounds: (a) that the Magistrate had “erred in law in holding that there was no evidence or no sufficient evidence on which he could fix the value of the diamonds and so apportion a penalty”, and (b) that the learned Magistrate “ erred in law in refusing to admit as evidence the certificate as to the value of the diamonds tendered by the plaintiff’s witness Ray Alfred Emery in accordance with section 248 (2) of the Customs Ordinance (Cap. 48).”
Jibowu, J., heard the appeal and held that section 248 (1) is only directory, so that it need not be complied with where compliance is impossible and tends to defeat the ends of justice. The learned judge also stated that the evidence of Mr. Nichols should have been accepted with regard to the value of the diamonds (not including customs duty) and added that there also was evidence, which should have been taken into account, that the defendant Khawan had admitted that he had received the diamonds from one Leon Coten who said that the diamonds were worth between £4,000 and £5,000.
The conclusion reached by Jibowu, J., was that there was sufficient evidence before the Magistrate to enable the latter to calculate the penalty of three times the value of the diamonds, and the learned judge ordered the case to be remitted to the Magistrate with directions that the latter should accept the value stated by Mr. Nicholls or the lower value mentioned by Khawan (i.e. £4,000) as the Magistrate might think fit.
As regards the second ground of appeal which was argued before Jibowu, J., he held that the learned Magistrate was right in rejecting the certificate of value (tendered by witness Emery). The learned judge’s reasons were that in view of the evidence given by the witness Mew (this should be Emery) who “gave more details of how he arrived at £7,500 but not detailed enough to show particulars as to the market price in 1948, the amount added as 25 per cent of 1948 price, and the amount of duty added, the certificate is valueless.”
The learned judge dismissed the second ground of appeal. Khawan appealed to this Court. The Comptroller of Customs did not give notice as provided by rule 20 of the West African Court of Appeal Rules, 1950, that he intended at the hearing of the appeal by Khawan to this Court, to contend that the decision of the Supreme Court should be varied so far as concerned the second ground of appeal to the Supreme Court.
At the hearing of the appeal by this Court, however, Mr. Fatayi-Williams. who appeared for the Comptroller of Customs, submitted that the Magistrate erred in rejecting the certificate. No objection was raised when that submission was made and learned counsel for the defendant-appellant, Mr. H. O. Davies, replied on this particular point.
The two grounds of appeal are (a) that the learned judge erred in holding that the provisions of section 248 (1) of Cap. 48 need not be strictly complied with in this case, and (b) that the learned judge misdirected himself by not considering the effect of the disappearance of the diamonds before the defendant had called evidence as to the value of the diamonds.
To deal firstly with ground (b), Mr. H. O. Davies argued that the appellant (i.e. Khawan) could not call an expert to give evidence as to value because the diamonds were stolen while the trial was going on.
We would point out that the appellant had had plenty of time to have the diamonds examined by an expert: the claim was entered on the 27th May, 1952, and the first hearing took place on the 26th June, 1952. The diamonds were still in the custody of the Court on the 17th September, 1952. They were stolen from the safe in the Court Registry between that date and the 29th October, 1952. We would also point out that the learned Magistrate found that the defendant, now appellant, knew that the articles found in his belt were diamonds.
It is to be noted that this ground of appeal (b) is merely to the effect that the learned judge misdirected himself by not considering the effect of the disappearance of the diamonds.
We are of opinion that the disappearance of the diamonds, in the circumstances, could not have led the learned judge to decide the appeal before him in Khawan’s favour.
In view of the conclusion at which we have arrived as to the rejection of the certificate of value and the course we intend to take it is unnecessary to consider the appellant’s ground (a) on its merits.
With respect to the learned judge of appeal, we are of opinion that the certificate of value should not have been rejected by the learned Magistrate.
It seems to us that the two sub-sections of section 248 provide independent methods of proving the value of the goods. The Legislature no doubt intended them to be alternative methods and it seems that either was available to the plaintiff, the Comptroller.
When the certificate was rejected the plaintiff felt obliged to have recourse to other evidence of value but it is clear that he originally intended to rely on the certificate under sub-section (2). The sub-section which has already been set out provides that the certificate shall be conclusive and shall not be questioned in any Court. in our opinion it follows that no evidence is required, or is indeed admissible, to explain how the value stated therein is arrived at nor to controvert it.
If the certificate had been received in evidence, as it should have been, it would have been unnecessary to consider the evidence of the witnesses Nicholls and Emery as to value.
Since the certificate is necessary to a proper determination of this matter, this Court pursuant to its rule 35 admits it in evidence as exhibit WACA 1.
In his judgment Jibowu, J., states, “ I had the opportunity of seeing the rejected certificate which was a bare certificate that the value of the diamonds was £7,500.”
It is clear that the Magistrate upon its admission in evidence would have been bound to declare the penalty on the basis of this certificate. This Court therefore instead of remitting the suit to the Magistrate’s Court for this purpose, as ordered by the Court below, by virtue of rule 36 hereby enters judgment for the plaintiff-respondent for the sum of £22,500 on the second part of the claim.
The appeal is accordingly dismissed with costs to be taxed.
Appeal dismissed; judgment varied; penalty fixed and ordered.
