SUNDAY NWOSU VS BOARD OF CUSTOMS & EXCISE
(1988) LCN/2370(SC)
In the Supreme Court of Nigeria
Friday, December 16, 1988
Case Number: SC.17/1988
RATIO
REVERSING FINDINGS OF TRIAL COURT BY THE APPELLATE COURT
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. PER CRAIG, J.S.C
JUSTICES:
NNAMANI JUSTICE SUPREME COURT
UWAIS JUSTICE SUPREME COURT
KARIBI-WHYTE JUSTICE SUPREME COURT
ABAJE JUSTICE SUPREME COURT
CRAIG JUSTICE SUPREME COURT
BETWEEN
APPELLANTS
SUNDAY NWOSU
AND
RESPONDENTS
BOARD OF CUSTOMS & EXCISE
CRAIG, J.S.C. (Delivering the Leading Judgment): 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.
Count II
That you, SUNDAY NWOSU, on or about the 3rd day of March, 1985, at about 10.55 hrs, along Igbetti/Ilorin Road, Igbetti, within the Ibadan Judicial Division of the Federal High Court of Nigeria, knowingly and with intent to defraud the Federal Government of Nigeria of the duty payable thereon were concerned in carrying in a Peugeot station wagon with registration number L 9774 MB four bales of Linings (2824.4 sq. metres), being goods valued at five thousand, six hundred and forty eight Naira, eighty kobo (N5648,80K), and chargeable with Custom duty of two thousand, nine hundred and sixty five Naira, sixty two kobo (N2965.62K) which had not been paid and you thereby committed an offence punishable under section 145(a) of the Customs & Excise Management Act. No. 55 of 1958.”
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 learned Judge also went further to say that it was the duty of the Respondent not only to prove that the goods are chargeable with import duty but also that the goods were imported. As previously stated the Defendant was acquitted and discharged on the two counts. 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 on. Two grounds of appeal which are as follows: “Grounds of Appeal:
1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in reversing the trial court’s decision which they too agreed to be based on credibility of witnesses and their demeanour.
Particulars of error and misdirection in Law:
i. The trial court’s decision based on credibility and demeanour of witnesses should not be disturbed by the appellate Court of Appeal.
ii. The Court of Appeal has substituted its own views with those of the trial court which has occasioned substantial miscarriage of justice.
2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in passing their sentence in the absence of the respondent therein (appellant herein) and his counsel when the respondent therein was not given the opportunity of being heard which is contrary to section 33(6) (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1979.
Particulars of error and misdirection in law:
i. The appeal was argued on 4/6/87 and the Court of Appeal adjourned judgment sine die.
ii. The Registrar dispatched the Notice of Judgment dated at Ibadan on 17/6/87 to respondent’s counsel’s address at Ilorin on 19/6/87 and the Notice of judgment was received by respondent’s Counsel at Ilorin on 30/6/87.
iii. The Court of Appeal delivered its decision on 24/6/87 in the absence of the respondent and his counsel without considering the inefficiency of Nigeria’s postal system.
iv. The sentence passed on the respondent at that Court is null and void as it was contrary to section 33 (6)(b) and (c) of the Constitution of the Federal Republic of Nigeria, 1979.
v. The appellant herein is in custody and he wishes to be present at the hearing of this appeal.”
In his brief of argument, the Appellant has raised four issues and these are:
(1) Whether the Court of Appeal could validly reverse the trial court’s decision which was primarily based on the credibility of witnesses and their demeanour.
(2) Whether the Court of Appeal properly evaluated the evidence preferred before the trial court.
(3) Whether the Notice to deliver Judgment on 24/6/87 prepared on 17/6/87 but posted on 19/6/87 to the Appellant’s Counsel was sufficient and valid and
(4) What is the effect of the Notice on the sentence delivered by the Appellate Court”
In his own Brief, the Respondent has set out three issues which are substantially the same as those of the Appellant.
The appeal came up in this Court on the 6th October, 1988 and after hearing both Counsel in argument, the Court allowed the appeal and adjourned till today 16th December, 1988 to give reasons for the judgment. I now give my reasons for agreeing that the appeal be allowed.
I propose to deal first with the 3rd and 4th issues which relate to the 2nd ground of appeal. The appellant’s complaint was that the lower Court had delivered its judgment in his absence and for this reason, his constitutional rights under section 33, sub-sections 6(b) and (c) of the 1979 Constitution have been violated. Counsel therefore submitted that the judgment was null and void.
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.
I now come to the 1st and 2nd issues. The real point in controversy will be better understood by a brief statement of the facts of the case. The relevant facts were as follows:
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 end of the whole case, it would appear that the central issue which the trial Judge had to resolve was 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. The issue which then arose was one which turned on the facts and it was within the exclusive preserve of the Judge to make a finding on those facts. This was how the Court of trial resolved it:
“The evidence led by the prosecution in support of the said allegation is no more than the fact that the defendant was found in the company of two soldiers in uniform in the peugeot station wagon carrying four bales of coat lining which they claimed to be army blanket and which the customs officers found to be coat linings. There is no evidence that the coat linings were imported or that they are liable to duty although two witnesses claimed that they heard the defendant say that he bought the goods from Benin Republic. It is also claimed that the two soldiers said that they were sent out by their officer in charge, the brother of the defendant, with passes so they can assist the defendant to carry the bales; they had to use the station wagon because there was no army vehicle available. Enquiries from Military sources disclosed that there was no officer in charge there who was the brother of the defendant and the soldiers were released to the army authorities in accordance with normal practice on the understanding that when the matter was ready for prosecution the soldiers would be surrendered to the customs.
It is on the basis of this evidence that it is urged upon me to find the defendant guilty of the charge against him, but let us assume for the purposes of the argument that the prosecution has established its allegation, as it is outlined in the charge, by sufficient evidence; would that be sufficient by itself for one to find the defendant guilty when the evidence led before me is that the two soldiers, who have not been prosecuted, are the ones who claim to have been sent to assist the defendant in the carriage of the goods and to give the operation the appearance of legitimacy If they are not being prosecuted why is the defendant being prosecuted when, as he stated in his evidence, he rejected the claim made by one of the soldiers in this regard and insisted that it was untrue!! Be it noted however, that even in the account which the prosecution gave of the involvement of these two soldiers not one of them is said to have made any reference to Benin Republic as the source of the lining. The defendant however, states clearly in the statement, which he had the opportunity of making at the earliest time after his arrest, that he had bought the bales of coat lining from an Alhaji in Shaki market and that it was in his effort at transporting them back to Ilorin that he sought and obtained, a lift from the two soldier’s in the peugeot station
wagon; it was upon their arrival at the Igbetti Check point that they got arrested and whisked off to the Headquarters office of Customs in Ibadan. The defendant denied ever telling anyone that he had bought the goods from Benin Republic.
As I said earlier on there is no evidence before me either that the bales of coat lining were not manufactured in Nigeria and the claim which the 1st and 2nd prosecution witnesses said they heard the defendant make as to buying them from Benin Republic he stoutly denied and there was no other positive evidence from the prosecution to show that that was in fact not the true state of affairs. Furthermore, notwithstanding the claim by the prosecution that they heard the defendant say that he bought the goods from Benin Republic they still went with him on two occasions to Shaki to find out the person from whom he bought, which shows that his claim may not be unreasonable after all and that they did not believe his story as to buying from Benin Republic.
In these circumstances, therefore, can the prosecution be said to have established the allegation which they make against the defendant in this charge”
After this, the trial Judge held that he was impressed by the Appellant’s evidence, and that
“by his demeanour generally, both in the dock and outside of it, I have no reason to doubt the truth of the account which he gave of how he came by the bales of coat linings and I have no option but to find the defendant not guilty of the charge against him.”
As previously stated, the Board of Customs and Excise was dissatisfied and appealed to the lower Court. Two of the issues submitted for determination in that Court were:
“(i) Whether on the evidence it was shown or not that the coat linings were imported.
(ii) Whether on the evidence it was shown or not that the coat linings were liable to import duty.”
It would be seen that these issues turned on the facts, and in that Court, Counsel for the Board of Customs submitted that the trial Court should not have believed the Appellant because he did not call any witness to show that he bought the goods at Shaki market. Counsel also submitted that “demeanour alone as found by the trial Judge was not sufficient, adding that the goods were dutiable but not absolutely prohibited:’
The Court of Appeal seemed to have accepted these arguments for in its judgment, (per Onu, J.C.A., – Ogundare and Omo JJ.C.A. concurring) the lower Court held as follows:
“I see the force in learned counsel for appellant’s argument. The respondent’s defence at the trial was that he bought Exhibits A-A3 from one Alhaji Baba Bose at the Shaki market, namely from an open market. Was that to be the only point which the trial court was to contend with and the respondent bought Exhibits A-A3 from the open market once the trial court believed him and also relied on his demeanour, the matter might have ended there. However, posed against Exhibit C and the respondent’s defence in court was the evidence of P.W.1 and P.W.2 that the respondent had upon arrest and interrogation, said at the earliest opportunity that he was conveying Exhibit A-A3 from Benin Republic. That was what led to the customs’ officers in taking respondent to Shaki twice in order to locate the seller of the goods to him and to ascertain whether he had paid duty on them or not.”
Later on in the judgment, Onu, J.C.A. referred to sections 166 and 168 of the Board of Customs & Excise Management Act 1958, and after considering the effect of two cases of the Supreme Court:
S. Ebiri v. Board of Customs & Excise (1967) NMLR 35; Board of Customs & Excise v. Alhaji Ibrahim Barau (1982) 10 SC. 48 on those two sections, he went on to state that:
“The matter therefore is strictly statutory. The respondent’s demeanour alone would not therefore be a sufficient guide to decide respondent’s culpability or otherwise as erroneously found by the learned trial Judge when he held –
“Furthermore, notwithstanding the claim by the prosecution that they heard the defendant say that he bought the goods from Benin Republic they still went with him on two occasions to Shaki to find out the person from whom he bought which shows that his claim may not be unreasonable after all and that they did not believe his story as to buying from Benin Republic.”
Secondly, the learned trial Judge must have erred in law as well as on the facts when he held at page 48 of the trial court’s record thus:
“I have given a careful consideration to the evidence given by the defendant and, although I find it difficult to believe him when he claimed that every officer of customs that he came into contact with solicited for a bribe from him, I must say….that favourably impressed by the manner in which he gave his evidence from the witness box and by his demeanour generally both in the dock and outside of it, and I have no reason to doubt the truth of the account which he gave of how he came by the bales of coat lining and, as the prosecution has made no effort whatsoever to establish the essential ingredients of the offence which they charge the defendant with having committed……”
The respondent’s claim was therefore unreasonable after all since firstly, it was his duty to prove he had paid duty on Exhibits A-A3 but this he failed to do by calling witnesses for the purpose or producing the bill of lading. Secondly, when the 1st P.W. first stopped Exhibit B at about 12.45 a.m. at Igbetti on the day the respondent and his two soldier comrades in crime were arrested, he first of all informed 1st P.W. that they were carrying army blankets to Ilorin and that they were not going to allow them (customs officers) to see what the inside of the bales contained. However, when the 1st P.W. forced open Exhibits A-A3 they saw them to contain coat linings. Thirdly, P.W.1 and P.W. 2 under cross-examination stated that the two soldiers that accompanied the respondent had averred that Exhibits A-A3 were being carried to Ilorin on the orders of a Captain Nwosu who happened to be the respondent’s brother and who had not been traced. Added to the above is the fact that both P.W.1 and P.W.2 said that to their joint hearing, the respondent had stated that he bought Exhibits A-A3 from Benin Republic.
Had the learned trial Judge considered the above facts dispassionately coupled with the respondent’s inability to produce evidence that he had paid customs duty on Exhibits A-A3, he would in my view, have arrived at a different conclusion.”
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.
In his judgment, Onu, J.C.A. was of the view that the issue in this appeal was strictly statutory and that the Appellant’s demeanour alone was not sufficient to decide the Appellant’s culpability. I myself think that the Appellant’s culpability can be determined in two stages:
(a) First, the facts of the case must be assembled, evaluated and proper findings made on them.
(b) Then, the applicable law must be applied to those findings.
In regard to (a) above, the facts of the case showed that there were two versions of how the appellant came to be in possession of the bales of coat lining. The appellant said that he bought them at a market in Shaki whilst the Respondent stated that the Appellant told us that he bought them in the Republic of Benin and imported them into Nigeria.
The trial Court, after a close examination of the evidence, accepted the Appellant’s version, and in my view that is an end of the matter.
In regard to (b), the appellant was charged under section 145(a) and (b) of the Customs & Excise Management Act 1958 with carrying goods which are chargeable with customs duty. – see section 145(a). He was also charged with evading to pay the duty payable, knowingly and with intent to defraud Government.
It must be stated in regard to these charges, that the law is the same as in any criminal case, – the offence must be proved beyond reasonable doubt. There is however the proviso in sections 166(2) and 168 of the Customs & Excise Act which shifts 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.”
But it should not be presumed that under these sections, the prosecution is relieved of the general burden of adducing evidence in proof of the charges. My view is that the prosecution is duty bound to tender evidence in support of other essential ingredients of the offence. If it fails in this respect, the defendant is entitled to be acquitted.
The Supreme Court had occasion to consider the effect of those sections in 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”
(Italics mine)
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 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.
A. NNAMANI, J.S.C.: On 6th October, 1988, this appeal came before this Court. Having read the records of proceedings and having heard both parties. I allowed the appeal and indicated that I would give my reasons for that judgment today. I now give my reasons.
I had before now had the advantage of reading in draft the Reasons for Judgment just delivered by my learned brother Craig, J.S.C. and I agree entirely with them and adopt them as my own.
This appeal actually turned on the burden which is imposed by Section 166(2) of the Customs and Management Act 1958. These Sections are in these terms:-
“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 arc 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.”
The evidence that the goods were brought in implies importation. It is also the case that for goods to be dutiable they have to be imported. It was rightly conceded by learned Counsel to the respondent that the onus of establishing that the goods were dutiable, and hence imported lies on the prosecution. It is significant that no evidence was led by the prosecution on the question of duty on the goods – coat linings. The evidence tending to show importation was the evidence of P.W.1 and P.W.2 that the appellant told them that the goods carried in the car at the time he was stopped at the road block were brought in from Benin Republic. The learned trial Judge did not believe P.W.1, P. W.2 but it seemed that the Court of Appeal reversed this finding. It seems trite now that one area in which the trial Court is master in its domain is its finding on issue of credibility. The Court of Appeal was in serious error in reversing the learned trial Judge on the finding on Benin Republic See Frank Ebba v Ogodo (1984) 1 S.C.N.L.R. 372.
Once the respondent failed on this there was no basis on which the appellant could have been convicted for not discharging burden under Section 166(2) of the Customs Management Act, 1958.
M. L. UWAIS, J.S.C.: This appeal was summarily allowed on the 6th of October, 1988 and we indicated then that our reasons for allowing the appeal would be given today.
I have had a preview of the reasons for judgment read by my learned brother, Craig, J.S.C. I agree with the reasons and I adopt them as mine.
A. G. KARIBI-WHYTE, J.S.C.: This appeal was argued by the parties on the 6th October, 1988. I allowed this appeal of the appellant after argument that day and reserved giving my reasons for doing so against today.
The main issue which calls for decision in this appeal is the nature of the burden on the prosecution in offences against the Customs & Excise Management Act 1958. The burden on the prosecution has often been misunderstood by the prosecution and sometimes by the Court. It is therefore not only desirable but also expedient to clarify the legal position.
But before I embark on such a task I consider it necessary to trace in outline the background to the prosecution of the appellant and the history of the litigation up to this stage. The facts which I do not intend to repeat have been set out in detail in the judgment of my learned brother.
Appellant was on the 10th June, 1985 charged in two counts of offences against section 145 of the Customs & Excise Management Act. No. 55 of 1958. On the 1st Count he was charged with being knowingly concerned in the fraudulent evasion of customs duty of N2,965.62k in respect of four bales of Linings, (2824.4 sq. metres) being goods valued al N5,648.80k an offence punishable under section 145(b) of the Customs & Excise Management Act No. 55 of 1958. On the 2nd count he was charged with carrying the four bales of coat lining stated in the 1st count chargeable with custom duty, which had not been paid in a Peugeot Station Wagon with registration No. LA 9774 MB, knowingly and with intent to defraud the Federal Government of Nigeria of the duty payable thereon and thereby committed an offence punishable under section 145(a) of the Customs & Excise Management Act No. 55 of 1958.
The defendant pleaded not guilty to the two counts in the charge and the prosecution proceeded to prove the case against him by calling five witnesses. Concisely stated, the evidence of the prosecution was that the defendant’s car No. LA 9774 MB was on 1/3/85 at about 10.55 hrs. at Igbeui Customs Base stopped for checking by customs officers. The customs officers at the check point discovered on searching the car that it was carrying the goods with which appellant was charged. After some argument the defendant claimed ownership of the goods and that he bought them in the Republic of Benin. Defendant was accordingly arrested and requested to make a statement. In his statement still maintaining ownership of the goods he now claimed to have bought them from one Baba Bose in Shaki Market in Oyo State. The investigating customs officers took defendant on two occasions to Shaki Market to verify defendant’s claim. On the first occasion which was not a market day they found neither Baba Bose nor anyone. On the second occasion which was a market day defendant was still unable to locate Baba Bose. The effort was accordingly abandoned.
In his evidence in Chief P.W.1, Matthew Ogedengbe a Customs Officer present when appellant’s car was searched and the goods discovered, tendered the four bales he identified as coat lining and they were marked Exhibits “A”-“A3.” Under cross examination witness said that he could not say whether or not the defendant paid duty, because if duly was paid, the bill of lading should accompany the goods. P. W.2, Gabriel Olarenwaju also a Customs Officer, who was with P.W.1 when Defendant was arrested corroborated the evidence of P.W.1. Under cross examination, this witness said that he did not know whether the defendant or any of the other two persons arrested had paid duty on the goods. P. W.4, who is an Officer of Customs & Excise Grade II gave evidence how he took the defendant to Shaki unsuccessfully on two occasions i.e. 12th and 18th April, 1985 to trace the Baba Bose defendant claimed sold the goods to him. Under cross-examination, this witness said at p.9 lines 3-6,
“I cannot say with certainty whether these linings could have been manufactured in Nigeria. I cannot say with certainty whether duty has been paid by anybody on these linings I cannot say whether these goods are dutiable or not.”
With the evidence of P.W.5, Tajudeen Olarenwaju Fawole, Superintendent Collector II of Customs & Excise, who was the Warehouse keeper who received the goods Exhibits A-A3 into the Warehouse, the prosecution closed its case. The learned trial Judge overruled the submission by Counsel for the Defendant that there was no case made out for the accused to answer.
The Defendant gave evidence in his own defence and denied the charges. He repeated the claim made in his statement to the Police that he bought the Coat linings Exhs. A-A3 from Baba Bose at Shaki Market. He called two witnesses. After the addresses of counsel on the 12th June, 1985 the learned Judge delivered his judgment on the 16th July, 1985. He acquitted and discharged the defendant on both counts. The reasons the trial Judge gave were that there was no evidence before him that the bales of coat lining were not manufactured in Nigeria, and that the Defendant’s denial of the claim of P.W.1 and P.W.2 that he told them he bought the goods in Benin Republic had not been further supported. He pointed out citing Ebiri v BOCE (1967) NMLR 35 that for the prosecution to prove the case against the defendant, they must prove (a) not only that the goods were chargeable with import duty, but also (b) that the goods were imported. After citing and referring to the cases of BCCE v. Alhaji Ibrahim Barau (1982) 10 SC. 48, and Nader v. BOCE (1965) NMLR. 99 and sections 166 and 168of the Customs & Excise Management Act, No. 55 of 1958, the learned Judge concluded:
“I certainly cannot say, on the evidence before me that the bales of Coat lining, the subject matter of this charge under consideration, have been proved by the prosecution to have been imported into this country. While it is true that under cross-examination the 1st prosecution witness did say:
“…. I could not say whether or not they had paid duty because if they had the bill of lading should accompany the goods…”
There is no evidence before me that that witness (or any other person for that matter) did, at anytime during the events that led to the arrest of the defendant refused to produce it. And the 2nd prosecution witness, for his own part, was not able to say whether duty was payable on the coat lining or not. And that being the case, it does not appear to me that the prosecution has established its claim against the defendant in the manner prescribed by law or at all.
The trial Judge stated that he was impressed with the manner in which the defendant gave evidence, and concluded on the case as a whole as follows-
“…as the prosecution has made no effort whatsoever to establish the essential ingredients of the offence with which they charge the defendant with having committed, I have no option but to find the defendant not guilty of the offence charged against him and he is accordingly discharged and acquitted on each and everyone of the two counts thereof. ‘”
The prosecution appealed against this decision alleging four grounds of error of misdirection as follows –
“1. The learned Judge misdirected himself considerably by holding that there was no evidence that the coat linings were imported; and he thereby came to a wrong decision on the facts.
2. The learned Judge misdirected himself considerably by holding that there was no evidence that the coat linings were liable to duty, and he thereby came to a wrong decision on the facts.
3. The learned Judge misdirected himself considerably when he held that the fact that the two soldiers who helped the defendant were not prosecuted at the same time as the defendant was prosecuted was prejudicial to the defendant, and he thereby came to a wrong decision in law by not adverting his mind to the provisions of section 155 of the Criminal Procedure Act which states:-
“155. When more persons than one are accused of the same offence or different offences committed in the same transaction or when a person is accused of committing an offence and another of abetting or being accessory to or attempting to commit such offence or when a person is accused of any offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence. they may be charged and tried together or separately as the court thinks fit.”
4. The learned Judge misdirected himself considerably when he held that the fact that investigators went with the defendant to Shaki twice to find out the person from whom the defendant bought the goods gave credence to his latter claim that he bought the goods at Shaki and supported the defendant’s case, and thereby came to a wrong conclusion on the facts.”
I have omitted the particulars of misdirection to avoid unnecessary prolixity. Appellant also formulated four issues for determination as follows-
“(i) whether on the evidence it was shown or not that the coat linings were imported.
(ii) whether on the evidence it was shown or not that the coat linings were liable to import duty.
(iii) whether or not the non-prosecution of the two soldiers who helped the defendant was prejudicial to the defendant.
(iv) whether or not the investigation to Shaki by investigating customs officers supported the defendant’s claim that he bought the seized goods (Exhibits A-A3 from Shaki.)”
The court considered the issues to he determined along with the grounds of appeal. Grounds 1 and 2 were considered along with issues 1 and 2. In deciding these grounds of appeal the Court of Appeal in a unanimous judgment read by Onu. J.C.A., to which Uche Omo and Ogundare, J.C.A. concurred, set aside the judgment of the Federal High Court and entered a conviction and fine.
The judgment considered the defence of the defendant/respondent that he bought Exbibits A-A3 from one Saba Bose at Shaki in the open Market but was unable to take P. W.4 to Baba Bose. It was conceded that if this evidence was believed that would have been the end of the matter. It is somewhat of a surprise that even though that was the position, the Court of Appeal did not regard it as the end of the matter. But as against this evidence the Court considered the evidence of P.W.1 and P.W.2 who testified that respondent told them he was conveying the goods from the Republic of Benin. The Court then criticized the trial Judge’s consideration of sections 166(2)(a) and 168 of the Customs & Exercise Management Act, 1958 and held that the prosecution had on the evidence before the learned Judge proved the case against the respondent. It seems that the Court of Appeal was relying on the evidence rejected by the trial Judge and not the evidence accepted and applied.
The Court cited and relied on Ebiri & anor v. BOCE (supra) where Brett, JSC construed the effect of section 166(2)(a) and BOCE v. Barau (supra) where the same section was also considered. Another aspect of this appeal is the consideration by the Court of the use made by the trial Judge of the demeanour of the respondent and holding that since the question was strictly statutory the demeanour of the defendant was irrelevant, and not a safe guide to decide the culpability of the respondent. Turning to the onus of proof it was held that it was the duty of the respondent to prove that he had paid duty in respect of the goods and had failed to discharge that duty by calling
witnesses for the purpose of producing the bill of lading. The Court of Appeal referred to the evidence of P.W.1 and P.W.2 at the trial and observed as follows – at p.21
“Had the learned trial Judge considered the above facts dispassionately coupled with the respondent’s inability to produce evidence that he had paid customs duty on Exhibits “A”-“A3″, he would in my view, have arrived at a different conclusion.”
The Court dwelt extensively on the evidence of the prosecution and observed that the learned Judge ought to have believed them. Unfortunately no reasons were adduced for the conclusion. With respect to the burden of proof earlier referred to the Court held that respondent had failed to prove lack of knowledge by showing that Exhibits A-A3 were bought in the open Market in the ordinary course of trade, accordingly the presumption that he had no knowledge of or reason to believe that duty had not been paid on these goods. Relying on Ayeni v. Sowemimo (1982) 5 S.C. 60 and distinguishing Nader v. BOCE (supra), it was held that the learned Judge came to a wrong decision on the facts. The other issue was the proper evaluation of the facts as found. The Court held that the trial Judge failed to evaluate and make correct findings. It was however conceded that the determination of primary findings of fact are especially within the jurisdiction of the trial Judge who had the opportunity of seeing, hearing and assessing the truthfulness of the witnesses. Accordingly, an appellate Court can only properly intervene if it can be shown that the conclusion reached was perverse – See Shell BP v. Pere Cole (1978) 3 S.C. 183; Onowan v. Iserhein (1976) NMLR 263. The Court of Appeal claimed that there were in this appeal all the features which would justify a re-evaluation of the evidence and cited Balogun & Ors. v. Agboola (1974) 1 All NLR (part II) 66 at p.73.
On ground 3 and issue 3, which complains about the non-prosecution of the other two persons arrested with Respondent as discriminatory and in conflict with section 39(1)(b) of the Constitution 1979, the Court of Appeal relied on section 155 of the Criminal Procedure Act as the reply to hold that persons who commit offences together may be charged and tried together or separately as the Court thinks fit.”
Ground 4 dealt with the trial judge’s acceptance of the evidence of the respondent, the Court of Appeal held that the failure of respondent to locate or produce Baba Bose who he alleged sold the goods Exhibits “A”-“A3″ to him and told him the source of the goods which the Court of Appeal regarded as hearsay, the learned trial Judge ought to have rejected the defence as matters peculiarly within knowledge which have not been proved. The Court referred to the burden of proof relying on sections 138 and 141 of the Evidence Act. It was held respondent also failed to show that he never knowingly was concerned in the fraudulent evasion of duty or had intended to defraud the Federal Government of Nigeria of the duty payable on Exhibits” A”-“A3.” The appeal before us is by the Respondent in the Court below against this judgment. Only two grounds of appeal have been filed. They are without the particulars as follows –
“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in reversing the trial court’s decision which they too agreed to be based on credibility of witnesses and their demeanour.
2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in passing their sentence in the absence of the respondent therein (appellant herein) and his counsel when the respondent therein was not given the opportunity of being heard which is contrary to section 33(6) (b) & (c) of the Constitution of the Federal Republic of Nigeria, 1979.”
The four issues for determination formulated can be resolved into the appellate court’s reversal of the findings of fact of the learned trial judge and the validity of a judgment delivered in the absence of the defendant.
I shall begin with a consideration of the second issue which challenges the validity of the judgment of the Court of Appeal having been delivered in the absence of the appellant. Counsel has submitted that the judgment is in the circumstances void even though it is in compliance with section 28(2) of the Court of Appeal Act 1976. The complain was that notice of the date of the delivery of the judgment was not given to appellant. There was no suggestion that appellant was not given a fair hearing at the trial in accordance with section 33 of the Constitution 1979, his counsel having filed brief of argument and was heard orally in respect of the appeal. The provisions of section 28(2) of the Court of Appeal Act relied upon by the court is as follows-
“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.”
This section is not inconsistent with the provisions of section 33(5) of the Constitution which preserves the right of appellant to be informed of the nature of the offence in respect of which he stands charged, or given adequate facilities for the preparation of his defence and actually defending himself before the Court – These rights appellant has exercised without interference.
Although it is accepted judicial practice for the accused to be present at the delivery of the judgment, the accused may choose not to be present. He is required so to indicate in his notice of appeal. This practice has been adequately provided for in Order 4 r.25(1) of the Rules of the Court of Appeal which reads:-
“On the final determination of any appeal or of any application to the Court, the Registrar shall give to the applicant, if he be in custody, and has not been present at such final determination, and to the respondent and the Prison authority, notice of such determination in Forms 20, 21, 22 or 23 in the Second Schedule as the case may be.”
Thus section 28(2) of the Court of Appeal Act 1976 and Order 4 r.25(1) have provided for the situations where the accused may not be present at the delivery of the judgment. Stricto sensu, all the accused person needs know after a valid trial is the judgment of the court. This he was informed of. These grounds of appeal are misconceived and lack merit.
I turn to grounds 1 and 2 of the grounds of appeal which complain about the Court of Appeal’s reversal of the findings of fact made by the learned Judge. Mr. Ijaodola for the appellant has submitted in his brief of argument filed which he adopted, that the Court of Appeal was wrong to have reversed the decision of the trial Judge based on the credibility and demeanour of the witnesses. He contended that it was the trial Judge who saw and heard the witnesses, and the appellate Court could not substitute its own views for that of the trial judge -He cited and relied on Mufutau Bakare v. The State (1987) 3 SCNJ 1. Counsel further submitted that the court below did not properly evaluate the evidence before the trial Judge. He submitted that the court preferred and relied upon the evidence of P.W.1 and P.W.2 rejected by the learned trial Judge.
Counsel to the Respondent has on the other hand submitted that the Court of Appeal was right in reversing the findings of facts of the trial Judge. It was his contention that the trial Judge applied the facts found wrongly to the circumstances of the case. After conceding the privileged position of the trial Judge to make findings of fact, counsel submitted that the issue of culpability in the instant case was not one that could be determined by the demeanour of the appellant alone, as liability was governed by the provisions of sections 166(2) and 168 of the Customs & Excise Management Act 1958. Besides this submission counsel relied on the evidence of P.W.1 and P.W.2 rejected by the learned Judge, and Ebiri & anor. v. Board of Customs & Excise (1967) NMLR 35; Board of Customs & Excise v. Barau (1982) 10 S.C. 48; Nader v. Board of Customs & Excise (1965) NMLR 99. Let me now consider the contention in the proposition whether the Court of Appeal was right to reverse the findings of fact of the trial Judge and whether either or which of the two Courts properly evaluated the evidence.
It is crucial for the determination of any case for the Judge or court to keep constantly in view the essential ingredients required. For a criminal case, which this is, the offence to which an accused ought to make a defence is only established where the evidence of the prosecution has shown that an offence has been committed. The offences with which appellant was charged requires the prosecution to show on the first count that the accused
(i) imported four bales of coat linings, and
(ii) the bales of coat linings were not manufactured in Nigeria, and
(iii) the bales of coat lining are chargeable with customs duty.
On the second count that the accused
(a) was carrying four bales of coat linings
(b) the bales of coat linings were not manufactured in Nigeria,
(c) the bales of coat linings are chargeable with customs duty. All these elements of the offence must he proved.
The other ingredients whether the accused did so with knowledge of the fraudulent evasion of customs duty, or that he evaded customs duty which has not been paid, knowingly and with intent to defraud the Federal Government of Nigeria, are matters the burden of which has been shifted on to the accused by section 166(2)(a)(d) and S.168 which provide as follows-
“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
(d) any goods have been lawfully imported or lawfully unloaded from any ship, aircraft or vehicle;
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 any thing 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.”
This in the instant case, the prosecution to succeed must adduce credible evidence which if accepted by the Court will lead to the conclusion that (1) the bales of coat linings found with the accused are of foreign manufacture,
(2) the accused was responsible for their importation
(3) the bales of coat linings arc chargeable with customs duty.
It is only after those essential ingredients of the offence have been established that the accused is expected to discharge the burden on him of showing that –
(i) the goods are either not imported, in which case there is no requirement to pay customs duty and the accusation of fraudulent evasion of the payment of customs duty will not arise, or
(ii) if the goods are imported, the duty chargeable thereon had been paid, or if not paid reasons why there is no intention to defraud.
Thus where at the end of the prosecution case or at the conclusion of the case as a whole the prosecution has not established any of the essential ingredients stated above, the trial Judge is bound to acquit and discharge the accused of the offence charged. This is in my opinion what the trial Judge did in this case. He found on the evidence before him that there was nothing to show that the coat linings were not manufactured in Nigeria; also there was no evidence that the goods were chargeable with customs duty. Furthermore having rejected the claim by the prosecution that the accused bought the goods in Benin Republic, the issue of importation failed. See BOCE v. Ekong (1979) FRCLR 79 at p.82. Even if it was so proved, which is not admitted, the prosecution must also give evidence which is accepted that the goods were manufactured in Nigeria. It is not contemplated that goods manufactured in Nigeria and exported to neighbouring countries would come under the prohibition on re-importation.
In Ebiri & anor. v. Board of Customs & Excise (1967) NMLR at p.35, relied upon by the prosecution, Brett, JSC said,
“…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 duty has been paid or that there was no intention to defraud the Government of any duty is cast upon the defendant.”
The facts of this case rendered the question of the proof of importation admitted by the accused unnecessary. But the dictum clearly implies that onus of proof that the goods are chargeable with payment of customs duty is on the prosecution. The evidence of the prosecution as accepted by the trial judge was that the accused was found in Shaki in possession of goods which had not been established as not being manufactured in Nigeria, or to be chargeable with import duty. It is these findings of fact which the Court of Appeal have reversed.
The Court of Appeal has held correctly in my opinion that culpability in respect of the ingredients of the offence is strictly statutory. I take this to mean that the provisions of the section must be complied with before the accused can be convicted.
The Court of Appeal referred to the following findings of the trial Judge which they considered to be erroneous – The learned Judge had observed as follows –
“Furthermore notwithstanding the claim by the prosecution that they heard the defendant say that he bought the goods from Benin Republic they still went with him on two occasions to Shaki to find out the person from whom he bought which shows that his claim may not be unreasonable after all and that they did not believe his story as to buying from Benin Republic.”
The Court also referred to the observation of the learned Judge at p.48 when after disbelieving appellant’s claim that every customs officer he came across demanded gratification, went on to say that he was
“…favourably impressed by the manner in which he gave his evidence from the witness box and by his demeanour generally both in the dock and outside of it, and I have no reason to doubt the truth of the account which he gave of how he came by the bales of coat linings and, …”
It is obvious from the above findings that the learned Judge found as a fact that as the appellant had claimed he bought the goods at Shaki market, even though on the evidence he was unable to locate Baba Bose from whom he claimed to have bought. On the other hand, the trial Judge correspondingly rejected the claim of the prosecution that P.W.1 and P.W.2 were told by the appellant that he bought the coat linings in Benin Republic. It is clear that a finding whether the accused bought the goods at Shaki Market, or in Benin Republic is a question of fact to be determined on the evidence before the trial Judge. In the instant case the finding depended upon the assessment by the Judge of the truthfulness of the witnesses before him which is his perception of the evidence before him. It is not a question as to the inference to be drawn from the evidence if believed; which is the evaluation of the evidence from admitted facts. The issue is what version of the evidence before the trial Judge was believed and accepted. The learned Judge having believed, accepted and acted on the evidence of the appellant, the Court of Appeal to reject it must show that he was wrong to have believed the evidence so accepted.
It seems to me that the Court of Appeal reversed the findings of fact of the learned trial Judge because as the Court said, the trial Judge failed to appreciate that
“the respondent’s claim was…..unreasonable after all, since firstly, it was his duty to prove he had paid duty on Exhibits A-A3 but this he failed to do by calling witnesses for the purpose of producing the bill of lading. Secondly, when the 1st P.W. first stopped Exhibit B at about 12.45 a.m. at Igbetti on the day the respondent and his two comrades in crime were arrested, he first of all informed 1st P.W. that they were carrying army blankets to Ilorin and that they were not going to allow them (Customs Officers) to see what the inside of the hales contained. However, when the 1st P.W. forced open Exhibits A-A3, they saw them to contain coat linings. Thirdly, P.W.1 and P.W.2 under cross-examination stated that the two soldiers that accompanied the respondent had averred that Exhibits A-A3 were being carried to Ilorin on the orders of a Captain Nwosu who happened to be the respondent’s brother and who had not been traced. Added to the above is the fact that both P.W.1 and P.W.2 said that to their joint hearing, the respondent had stated that he had bought Exhibits “A”-“A3″ from Benin Republic.”
F The Court of Appeal was of the view that the above facts and the inability of appellant to produce evidence of the payment of customs duty on Exhibits A-A3 were sufficient to enable the trial Judge to arrive at a different conclusion.
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.
It is now however well settled that an appellate court is entitled to interfere with the findings of fact of a trial Judge, not based on the credibility of witnesses, in certain circumstances. These are if the-trial Judge did not take advantage of seeing and hearing the witnesses, i.e. where the facts found are not reasonably justified or supported by credible evidence adduced in the case. It undoubtedly ought to interfere and reverse conclusions where the facts as found by the court of trial are wrongly applied to the circumstances of the case, or the inferences drawn from those facts are erroneous. See Shell-BP Petroleum Development Co. of Nigeria v Pere Cole & ors. (1978) 3 SC 183; Asariyu v. State (1987) 4 NWLR (Pt.67) 709 S.C; Ajadi v. Okenihun (1985) 1 NWLR (pt.3) 484; Ajayi v. Texaco (1987) 3 NWLR (Pt.62) 577. Thus the appellate Court will interfere where it is satisfied that the decision of the trial court was wrong. I am satisfied that the Court of Appeal ignored the established principles and adopted the wrong approach by interfering with the findings of fact of the learned trial Judge based on the credibility of the witnesses who he saw, heard and whose demeanour in the witness box he observed.
I am satisfied that on the evidence before him, the judgment of the learned trial Judge is impeccable and cannot be faulted. See Mufutau Bakare v. The State (1987) 3 SCNJ 1 at p.5.
The ground on which this appeal succeeds is that the prosecution having failed to prove that the goods found with the appellant are not manufactured in this country and were imported, and that they were subject to the payment of customs duty, there was no burden on appellant to show that the goods were manufactured in this country or if not so manufactured, the duty chargeable has been paid. This is a burden cast on him under Sections 166(2)(a) & (d) and 168 of the Customs & Excise Management Act, 1958. See Board of Customs & Excise v Oparah (1979) FHCLR. 186 at p.189; BOCE v Ekong (1979) FHCLR 79 at p.82; BOCE v Ewusie (1976) 2 FRCLR. 119. It is consistent with section 168 of the Customs & Excise Management Act 1958. The Court of Appeal was clearly in error to have held that there was any burden on the appellant to discharge before the prosecution had established the offence alleged. I allowed this appeal on the 6th October, 1988 for the reasons given in this judgment.
A. G. O. AGBAJE, J.S.C.: On 6th October, 1988 I summarily allowed the appellant’s appeal, set aside his conviction and sentence and in their places entered an order of discharge and acquittal. I indicated then that I would give my reasons for doing so today. I now proceed to give the reasons.
The appellant was charged in a Federal High Court holden at Ibadan 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 Igbetti/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 (N2,965.62k) chargeable thereon, being goods valued at five thousand, six hundred and forty-eight Naira, eighty Kobo (N5,648.80k) and you thereby committed an offence punishable under section 145 (b) of the Customs & Excise Management Act, No. 55 of 1958.
Count II
That you. SUNDAY NWOSU, on or about the 3rd day of March, 1985, at about 10.55 hrs, along Igbetti/Ilorin Road, Igbetti, within the Ibadan Judicial Division of the Federal High Court of Nigeria, knowingly and with intent to defraud the Federal Government of Nigeria of the duty payable thereon were concerned in carrying in a Peugeot station wagon with registration number LA 9774 MB four bales of Linings (2824.4 sq. metres), being goods valued at five thousand. six hundred and forty-eight Naira, eighty kobo (N5,648.80), and chargeable with Custom duty of two thousand, nine hundred and sixty-five Naira, sixty-two kobo (N2,965.62k) which had not been paid and you thereby committed an offence punishable under section 145 (a) of the Customs & Excise Management Act, No. 55 of 1958.”
The charge against the appellant was preferred in the name of Board of Customs & Excise.
The appellant Sunday Nwosu was arrested in the night of 1st -2nd March, 1985 at Igbetti in Oyo State by Customs Officers with the goods the subject matter of the charge he was facing in his possession. This appears to be common ground between the prosecution and the appellant. The whole of the evidence adduced by the prosecution in court was directed towards showing that the appellant was in possession of the goods at the time he was arrested at Igbetti and the appellant upon being questioned as to how he came about the goods replied that he was coming from Republic of Benin where he bought them. It was also the case for the prosecution that the appellant later in the course of the investigation into the case against him claimed in the statement he made to the police to have bought the goods in question from Shaki in Oyo State from one Alhaji Baba Bose but he said he got no receipt when he paid him for them. The appellant did not produce Alhaji Baba Bose to give evidence for him.
At this stage I must refer to the following evidence of Isiaka Kayode Oloyede, a prosecution witness, a Customs & Excise Officer Grade II in cross examination:-
“I cannot say with certainty whether these linings could have been manufactured in Nigeria. I cannot say with certainty whether duty has been paid by anybody on these linings. I cannot say whether these goods are dutiable or not.”
The case was tried by Kuribido J. In his judgment dated 16th July, 1985 he discharged and acquitted the appellant on each of the two counts he stood trial for in the Federal High Court. The learned trial Judge came to this decision primarily because of the evidence of P.W.2 to which I have earlier on referred to. This is what the trial Judge said in this regard:-
“I certainly cannot say, on the evidence before me that the bales of coat lining, the subject matter of this charge under consideration, have been proved by the prosecution to have been imported into this country.”
While it is true that under cross-examination the 1st prosecution witness did say:
“……..I could not say whether or not they had paid duty because if they had the bill of lading should accompany the goods…..”
there is no evidence before me that that witness (or any other person for that matter) did, at anytime during the events that led to the arrest of the defendant, either ask for any such document to be produced, or that the defendant refused to produce it. And the 2nd prosecution witness, for his own part, was not able to say whether duty was payable on the coat lining or not. And that being the case, it does not appear to me that the prosecution has established its claim against the defendant in the manner prescribed by law or at all.”
The prosecution, the Board of Customs & Excise, appealed against this judgment to the Court of Appeal, Ibadan which allowed its appeal. In reversing the judgment of the trial court Onu J.C.A. in his lead judgment in which Ogundare and Omo JJ.C.A. concurred held that this is a case in which provisions of Section 166 sub-section 2 and Section 168ofthe Customs & Excise Management Act of 1958 and Section 141 of the Evidence Act would apply. So, the learned Justice of Appeal concluded that in the face of the evidence adduced by the prosecution and in the absence of evidence from the appellant that he had paid duty on the goods in question coupled with the facts that although the appellant claimed to have bought the goods from Alhaji Baba Bose the appellant got no receipt for the payment for them and Baba Bose was not produced to give evidence, the combined effect of Section 166(2) and Section 168 of the Customs & Excise Management Act and Section 141 of the Evidence Act is that the prosecution had proved its case against the appellant.
As I have just said the Court of Appeal allowed the appeal of the Board of Customs & Excise, set aside the order of discharge and acquittal of the appellant by the trial court and in their places convicted the appellant on each of the two counts upon which he stood trial, sentenced him to a fine of N33,892.80k or two years’ imprisonment with hard labour on count one but stayed sentence on count two. It is against this decision of the Court of Appeal that the appellant has now appealed to this court.
Section 166 sub-section 2 and Section 168 of the Customs & Excise Management Act provide as follows:
“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.
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.”
Section 141 of the Evidence Act says as follows:-
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
In B.O.C. v Alhaji Ibrahim (1982) 10 S.C. 48 this court has held that in a criminal prosecution under the provisions of the Customs & Excise Management Act (1958) before the onus of proving either that the duty had been paid or that there was no intention to defraud the government of any duty is cast upon the defendant, the prosecution must establish firstly that the goods in question were found in the possession of the defendant and secondly that the goods are chargeable with import duty.
In the instant case the prosecution had woefully failed to prove that the goods indisputably found in the possession of the appellant were chargeable with import duty. It follows in the circumstances that no burden was cast on the defendant to prove either that duty had been paid on the goods or that he had no intention to defraud the government of any duty in respect of the goods.
As regards Section 141 of the Evidence Act this court has held in Mandilas & Karaberis Ltd. & anor. v. Inspector-General of Police (1958) 3 F.S.C. 20 that the provisions of that section of the Evidence Act had not altered the principle that the charge upon which an accused person is arraigned must be proved by the prosecution. The case of Regina v. Edwards (1974) 2 A.E.R. 1085 is illustrative of the cases in which the onus of proof of facts within an accused person’s peculiar knowledge or especially within his knowledge would apply. There it was stated that the prosecution must prove every ingredient of an offence charged and that the exception is limited to offences arising under enactments which prohibit the doing of the act in question subject to a proviso, exception, excuse or qualification. In the latter case there will be no need for the prosecution to establish a prima facie case that the proviso does not apply. It is to this latter class of cases that the provisions of Section 141 of the Evidence Act will apply. The case against the appellant does not fall within that class. So the provisions will not apply to it.
The conclusion I reach therefore is that the Court of Appeal was wrong in applying the provisions of Section 166 sub-section 2 and Section 168 of the Customs & Excise Management Act 1958 and the provisions of Section 141 of the Evidence Act in the instant case. In my judgment the trial court was right in discharging and acquitting the appellant for the reasons it gave and that the Court of Appeal was wrong in setting aside that judgment.
It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother Craig, J.S.C. that I allowed the appellant’s appeal on 6th October, 1988.
Appeal Allowed.
Appearances
O. Ijaodola For Appellant
AND
I. Awokulehin, Senior State Counsel, (Federal) For Respondent
