➥ CASE SUMMARY OF:
Sunday Nwosu v. Board Of Customs & Excise (SC.17/1988, December 16 1988)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Import duty;
Proof beyond reasonable doubt;
Absence of Defendant during judgement.
➥ CASE FACT/HISTORY
At about 12.45 a.m. on the 3rd March, 1985, the Appellant and two soldiers were stopped by Customs Officers on the Igbetti-Ilorin Road for what appeared to be a routine check. The appellant and his friends had 4 bales of materials in their vehicle. When questioned, the men told the Officers that the bales contained army blankets. The Officers were not satisfied and insisted on seeing the contents. The appellant and the soldiers resisted, whereupon the Customs men called in P.W.1, their superior officer. When P.W.1 came along. he cut open the bales and found them to contain coat linings. Now, the case for the prosecution was that when the P.W.1 questioned the Appellant (to the hearing of P.W.2) he (appellant) told the P. W.1 that “he was coming from the Republic of Benin where he had bought the goods.” In those circumstances, the P.W.1 arrested the three men and got them to make written statements. Subsequently they were charged to the Court. As against that story, the Appellant denied that he ever told the customs officer (P.W.1) that he was coming from the Republic of Benin. He asserted that what he said was that he bought the coat linings from one Alhaji at a Shaki market. On the same day that he was arrested (3/3/85) he made a statement Exhibit C to the same effect. He also stated that in consequence of his story a customs Officer P.W.4 accompanied him to Shaki on two occasions to look for his vendor, but they could not trace him.
At the Federal High Court holden at Ibadan, the Appellant was charged on two counts with the following offences:
“Count 1
That you, SUNDAY NWOSU on or about the 3rd day of March, 1985 at about 10.55 hrs, along Igbett/Ilorin road, Igbetti, within the Ibadan Judicial Division of the Federal High Court of Nigeria, in relation to four bales of Linings (2824.4 sq. metres) were knowingly concerned in the fraudulent evasion of a duty of two thousand, nine hundred and sixty-five Naira, sixty two kobo (N2965.62K) chargeable thereon, being goods valued at five thousand, six hundred and forty eight Naira, eighty Kobo (N5648.80K) and you thereby committed an offence punishable under Section 145(b) of the Customs & Excise Management Act, No. 55 of 1958.’ et cetera.
He was arraigned before Okuribido, J. who, after hearing evidence discharged and acquitted him on the two counts. The learned trial Judge held that there was no evidence before him that the bales of coat lining which the defendant was alleged to have had in his possession were manufactured outside Nigeria and therefore dutiable.
The Board of Customs was dissatisfied with the judgment, and it appealed to the Court of Appeal. In that court they were successful; the acquittal was set aside and an order of conviction was recorded against the Appellant; in addition, the Appellant was ordered to pay a fine of N33,892.80K or serve 2 years imprisonment with Hard Labour. The Appellant has appealed further to this Court.
➥ ISSUE(S)
I. Whether the lower Court which had delivered its judgment in his (Appellant) absence and for this reason, his constitutional rights under section 33, sub-sections 6(b) and (c) of the 1979 Constitution have been violated?
II. Whether the Appellant had imported the materials from the Republic of Benin or whether he had bought them in an open market at Shaki in Nigeria?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[ABSENCE BY THE APPELLANT WHEN JUDGEMENT WAS DELIVERED DID NOT VITIATE THE JUDGEMENT
‘It is enough to state that Counsel did not press this point in his oral argument nor do I find any convincing argument in his Brief which could make me invalidate the judgment. Section 33, sub-sections 6(b) and (c) do not state that any judgment pronounced in the absence of a litigant shall be void. On the contrary, those sub-sections provide that:
“6. Every person who is charged with a criminal offence shall be entitled
(a) …….
(b) to be given adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or by legal practitioners of his own choice.” In the instant case, the Appellant had appeared before the lower Court and defended himself; and although it would have been desirable for him to be present when the judgment was delivered, the fact that he was absent is no violation of his constitutional rights. Apart from this, the Respondent in his Brief has invited the attention of this Court to section 28(2) of the Court of Appeal Act 1976 which provides that: “The power of the Court of Appeal to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.” There is no merit in this ground of appeal and it is dismissed.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE LOWER COURT CANNOT SUBSTITUTE ITS VIEWS FOR THAT OF THE TRIAL COURT
‘Now, with the greatest respect to the learned Judge of the lower Court, I think that the trial Judge had given due consideration to all the facts of the case as can be seen from that portion of his judgment which I quoted earlier on. The only difference is that the Court of first instance held that the evidence of the Appellant was credit-worthy and accepted it whilst the Court of Appeal was of the opinion that the Respondent’s evidence should have been accepted. But the Law is clear on the point that an appellate Court is not in such a unique position as a trial Court and it should not reverse a finding of a trial Court unless that finding runs contrary to the trend of accepted evidence. Fashanu v. Adekoya (1974) 1 All NLR 35. Apart from this, I must invite attention to the principle laid down by this Court in Balogun & ors. v. Agboola (1974) 1 All NLR (Pt. 11) 66 at p.73. when the Supreme Court held: ‘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.”
In this regard, I am unable to find anything in the judgment of the lower Court which suggests that the finding of the trial Court was perverse or not supportable by the evidence before the trial Judge. In those circumstances, I am of the view that the lower Court should not have interfered with it.’
THE RESPONDENT FAILED TO PROVE WHETHER THE GOODS WERE DUTIABLE (CAN BE CHARGED WITH IMPORT DUTY)
‘It seems to me that in the instant case, the Respondent is required to prove that the goods in the possession of the Appellant are chargeable with import duty. This it failed to do.
In this respect, the trial Judge found that the Respondent had failed to prove either that the goods were imported (i.e. not manufactured in Nigeria) or that they were liable to import duty. That decision is supported by the evidence of the P.W.4 Isiaka Oloyede, a Grade II Officer of the Customs & Excise, who, when cross-examined stated;
“I cannot say with certainty whether duty has been paid by anybody on these linings. I cannot say with certainty whether these linings could have been manufactured in Nigeria. I cannot say whether these goods are dutiable or not.” In view of that evidence, it cannot be said that the prosecution has proved that the alleged goods were chargeable with import duty, and the trial Judge was justified in discharging the appellant. In my view, the Court of Appeal was in error to have reversed that decision. It was for these reasons that I allowed the appeal on the 6th of October, 1988.’
THE COURT OF APPEAL SUBSTITUTED ITS OWN VIEWS FOR THAT OF THE TRIAL COURT
Per A. G. Karibe-Whyte JSC: ‘With the greatest respect, the Court of Appeal is here making a different case for the prosecution than the one on the evidence believed by the trial Judge. The question whether customs duty is payable and has knowingly not been paid by the appellant, thereby imputing fraud, is predicated on the findings that the goods are imported into this country, and are of a foreign manufacture and are dutiable. The Court of Appeal is therefore wrong to hold that the onus is on the appellant to produce evidence of payment of customs duty when there was no finding that the goods were liable to payment of customs duty. The Court of Appeal has cited Board of Customs & Excise v Chikwendu (1978) 4 FHCLR. 51; Board of Customs & Excise v Aligbor (1973) FHCLR. 243; Nader v Board of Customs & Excise (supra). None of the cases cited has been of any assistance. It is an entrenched provision of the Constitution 1979 that every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty – S.33(5). The proviso to the section which shifts the burden of proving particular facts on the accused does not discharge the prosecution from proving the offence charged – See section 137(2) Evidence Act, Cap.62. It is only after the commission of the offence has been proved that the accused will be obliged to satisfy the court that he has paid the duty charged or that he had no intention to defraud. The view of the Court of Appeal leads to the suggestion that once the prosecution has alleged the Commission of an offence, the burden rests on the accused to prove his innocence. This is a complete negation of the Constitutional provision and certainly not the law of this free country. The Court of Appeal purported to have evaluated the evidence relied upon by the trial Judge when in actual fact what they did was a substitution of that evidence with the evidence rejected by the learned trial Judge. If the Court of Appeal were evaluating the evidence accepted by the trial Judge, the question of the credibility or reliability of the appellant would be accepted and the point in dispute would have been the proper inference to be drawn from such admitted facts. See Akesse v. Ahahio (1935) 2 WACA 264. There is no doubt that where it is a question of the inference to be drawn from admitted facts the Court of Appeal is in as good a position as the trial court to evaluate the evidence. This was not what the Court of Appeal did in this case. They proceeded to reverse the findings of fact of the trial Judge, substituted different facts rejected by the trial Judge, as if they were hearing the case at first instance. This they are clearly not competent to do. After rejecting the evidence of the prosecution witnesses, there is no evidence with which to compare the evidence of the appellant which stands uncontradicted. See Mufutau Bakare v. The State (1987) 3 SCNJ 1 at p.5. It is not the function of the Court of Appeal to substitute its own view of the evidence for those found and admitted by the court of trial – See Ogbero Egri v Ededho Uperi (1974) 1 NMLR. 22. The Court did not anywhere indicate that the findings of fact of the trial Judge was perverse and that the conclusion could not have reasonably followed from the facts found. In this case where the finding was based solely on the credibility of the witnesses, in respect of which the trial court has an advantage over the appellate Court, the Court of Appeal ought to have been very wary in interfering. See Kponuglo v. Kodadja (1933) 2 WACA 24; Balogun & Ors v Agboola (1974) 1 ALL NLR (Part 11) 66.’]
.
.
.
✓ DECISION:
‘The appeal therefore succeeds and it is allowed; the conviction and sentence of the Court of Appeal are hereby set aside and the judgment of the trial Court is restored. The appellant is accordingly discharged and acquitted.’
➥ FURTHER DICTA:
⦿ AN APPELLATE COURT CANNOT REVERSE THE FINDING OF A TRIAL COURT EXCEPT IT RUNS CONTRARY TO THE EVIDENCE
But the Law is clear on the point that an appellate Court is not in such a unique position as a trial Court and it should not reverse a finding of a trial Court unless that finding runs contrary to the trend of accepted evidence. Fashanu v. Adekoya (1974) 1 All NLR 35. Apart from this, I must invite attention to the principle laid down by this Court in Balogun & ors. v. Agboola (1974) 1 All NLR (Pt. 11) 66 at p.73. when the Supreme Court held: ‘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.” — Craig JSC.
⦿ WHERE ONUS OF PROOF ON THE DEFENDANT IN CUSTOMS MATTER
The onus of proof of certain matters on the Defendant. These sections stipulate that: “162(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 duly 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. 168. 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 be on the defendant.” Stephen Ebiri v. Board of Customs & Excise (Supra) and Brett J.S.C. pronounced that: “The result is that if a Customs Officer finds a person anywhere in Nigeria in possession of 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”. — Craig JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Craig, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ijaodola.
⦿ FOR THE RESPONDENT(S)
I. Awokulehin, Senior State Counsel.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
