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THE COMPTROLLER OF CUSTOMS
V.
K. CHELLARAM AND SONS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
31ST DAY OF MAY, 1943
2PLR/1943/53 (WACA)
OTHER CITATION(S)
2PLR/1943/53 (WACA)
(1943) IX WACA PP. 118 – 126
LEX (1943) – WACA PP. 118 – 126
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
THE COMPTROLLER OF CUSTOMS — Plaintiff-Respondent-Appellant
AND
K. CHELLARAM AND SONS — Defendants-Appellants-Respondents
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ORIGINATING COURT
APPEAL FROM DIVISIONAL COURT EXERCISING APPELLATE JURISDICTION
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REPRESENTATION
A. Ridehalgh — for Appellant
J. H. Coussey — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ADMINISTRATION AND GOVERNMENT LAW – CUSTOMS:- Prohibited Articles — Regulated Textiles — Customs Ordinance (Cap. 132) (Gold Coast) sections 27(1)(c)(iii), 27(2), 27(3), 118(2) — Importation of Textiles (Quotas) Ordinance (Cap. 136) (Gold Coast), section 7(1)— Proclamations No. 10 of 1938 and No. 7 of 1939 (Gold Coast).
INTERPRETATION OF STATUTE:- Legislation— Legislation by reference to another Ordinance— Ordinance referred to suspended— Subsidiary Legislation.
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CASE SUMMARY
In 1938-39 Messrs Chellaram imported certain textiles, alleged to be “regulated textiles” by virtue of Proclamations No. 10 of 1938 and No. 7 of 1939 made under the Importation of Textiles (Quotas) Ordinance (Cap. 136), without complying with the provisions of section 7(1) of that Ordinance. The operation of Cap. 136 and subsidiary legislation was suspended as from 1st January, 1940, and subsequently the Comptroller of Customs (Appellant) sued respondents in the District Magistrate’s Court for the forfeiture and/or condemnation of the textiles under sections 27(2) and/or 118(2) of the Customs Ordinance (Cap. 132) as prohibited articles by virtue of section 27(1)(c) (iii) of that Ordinance, which prohibited the importation, inter alia, of such “regulated textiles” without compliance with section 7(1) of Cap. 136. As regards certain of the articles the Magistrate decided in favour of the appellant, on the basis that the Proclamations were of full legal effect. The respondents appealed to the Divisional Court and from the decision of that Court this appeal was brought.
On behalf of the respondents it was argued-
(i) That no action could be maintained in view of the suspension of Cap. 136.
(ii) That section 27(1)(c)(iii) of Cap. 132 was subsidiary legislation to Cap. 136, and had been expressly suspended therewith.
(iii) That section 27(1)(c)(iii) of Cap. 132 had been impliedly suspended with the suspension of Cap. 136.
During the appeal it was agreed that the second paragraphs of the Proclamations were ultra vires.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:–
(i) The action could be maintained. It was not brought under Cap. 136, but under Cap. 132, and it was permissible to look to Cap. 136. though suspended, to ascertain what were prohibited articles under Cap. 132 at the material date, which was the date of importation, not the date of the writ.
(ii) Section 27(1)(c)(iii) of Cap. 132 was not subsidiary legislation to Cap. 136, and its operation had not been expressly suspended.
(iii) There was no implied suspension of section 27(1)(e)(iii), for no inconsistency or repugnancy was involved by its remaining in force while Cap. 136 was suspended.
(iv) Since it was impossible to say that the Magistrate would have come to the same decision if he had appreciated that the second paragraphs of the Proclamations were ultra vires the case must be remitted to him for hearing de novo.
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.
GRAHAM PAUL, C.J., SIERRA LEONE (DELIVERING THE LEAD JUDGMENT).
The appellant caused to be issued in the District Magistrate’s Court at Accra a Writ of Summons, the material part of which was as follows: –
“The articles described in the first column of the particulars hereto were imported by the defendants at the port of Accra on the dates mentioned in the second column of the said particulars. The said articles and each of them are regulated textiles within the meaning of the Importation of Textiles (Quotas) Ordinance (Cap. 136), and were imported by the defendants contrary to the provisions of section 7(1) of the said Ordinance. By reason of the premises the importation of the said articles and each of them is prohibited by virtue of the provisions of section 27(1)(c) (iii) of the Customs Ordinance (Cap. 132): and the plaintiff claims the forfeiture and/or condemnation of all and each of the said articles under the provisions of section 27(2) and/or 118(2) of the said Customs Ordinance.”
The particulars of the summons specified 45 items; for the sake of convenience these have been numbered 1-45 in the order in which they are set out in the particulars. By his judgment the Magistrate decided in favour of the appellant as regards 37 of the 45 items and in favour of the respondents as regards the other 8. On appeal to the Divisional Court by the present respondents in regard to the 37 items, forfeiture of which had been ordered, the District Magistrate’s judgment was set aside except in regard to three of the items of the particulars. From that judgment of the Divisional Court the appellant has appealed to this Court. There was no appeal from the District Magistrate in respect of the 8 items which he released.
In his judgment in the Court below the learned Judge stated that in his opinion “this case must be determined on three legal points”. It is the third of these points which has been the main subject of argument in the appeal before this Court. It is stated by the learned Judge as follows:
“(3) Could the Comptroller of Customs maintain this action under section 27(c)(iii) of the Customs Ordinance (Cap. 132) in view of the suspension of the operation of Cap. 136 and all the subsidiary legislations made thereunder?”
The learned Judge in his judgment answered this question in the negative. In view of that answer we are unable to understand why he did not order all the articles to be released instead of allowing the forfeiture to stand in respect of three. It will be convenient and logical to deal first with this third point.
First it will be convenient to consider the sections of the Customs Ordinance on which the claim is based and thereafter to consider what was the effect on these sections of the suspension of the operation of Cap. 136. Sub-section (2) of section 27 of the Customs Ordinance provides that “any articles falling within the categories in sub-section (1) and imported otherwise than in accordance with the provisions of that sub-section shall be forfeited”.
The relative part of paragraph (c) of sub-section (1) is as follow:-
“The importation of the following is prohibited except subject to the conditions and restrictions severally specified with respect thereto:-
• • • •
“(iii) Regulated textiles within the meaning of the Transportation of Textiles (Quotas) Ordinance, except in accordance with the provisions of the said Ordinance.”
Section 118(2) of the Customs Ordinance, omitting unnecessary words, provides that “if any prohibited article whatsoever shall be imported into any part of the Gold Coast contrary to the terms of the prohibition such article shall be forfeited.”
Section 145 of the Customs Ordinance makes provision for the Comptroller bringing proceedings in the Magistrate’s Court to enforce all forfeitures incurred under or imposed by the Customs laws.”
All these sections of the Customs Ordinance were in full force and effect at all material times in this case.
Where the Comptroller considers that any goods have been imported contrary to the terms of section 27(1) these sections quoted expressly give him, the right to bring proceedings in the Magistrate’s Court to enforce forfeiture of such goods. And just as expressly do these sections place upon the Magistrate’s Court when such proceedings are taken, the’ duty of investigating and deciding whether the goods in question fall within any of the categories specified in section 27(1) of the Customs Ordinance and of enforcing the forfeiture of such goods if they are found by the Court to fall within any of these categories.
In this case the Comptroller has come to the Magistrate’s Court alleging that the goods in question come within section 27(1)(c)(iii) and claiming by reason of these premises the forfeiture and/or condemnation of all the said articles under the provisions of section 27(2) and/or section 118(2) of the Customs Ordinance.
It is not disputed that the goods in question were imported into the Gold Coast by the defendants and it is admitted that, in so far as they may be held to come within the classifications set out in the relative Proclamations made under Cap. 136, the goods were imported by the defendants without a licence, which is otherwise than in accordance with the terms of Cap. 136. In these circumstances it seems to us perfectly clear that there is no answer to the claim by the Comptroller unless the respondents can show (since by section 157(1) of Cap. 132 the onus is on them) that the goods do not come within the said classifications.
But it has been argued at great length that because as and from the 1st January, 1940, the operation, of Cap. 136 has been suspended by Order-in-Council the Comptroller could not bring these proceedings during the period of suspension. We cannot agree with this argument because these proceedings are brought not under the Importation of Textiles (Quotas) Ordinance (Cap. 136) but under section 27(1) (c) and (2) and/or section 118(2) of the Customs Ordinance (Cap 132). It is true that the writ sets out that “The said articles and each of them are regulated textiles within the meaning of the Importation of Textiles (Quotas) Ordinance (Cap. 136), and were imported by the defendants contrary to the provisions of section 7(1) of the said Ordinance.”
This sentence in the writ would have been better worded by the substitution of the words “were, at the respective dates of importation,” for the word “are”. But, even worded as the writ is, it is clear that the proceedings are taken for the forfeiture under the Customs Ordinance (Cap. 132) of prohibited imports, and for the purpose of ascertaining what are prohibited imports for the purpose of forfeiture under Cap. 132, the material date is the date of importation and not the date of writ. We are of opinion that Cap. 136 and the subsidiary legislation made under it may properly be looked at for the purpose of ascertaining whether imported goods were imported contrary to the provisions of section 27(1)(c) of Cap. 132 and that the Comptroller of Customs’ case is not founded upon Cap. 136 in the sense that it is essential for Cap. 136 to be in operation at the date of the writ. The vital date for the purpose of the construction of ‘section 27(1)(c) of Cap. 132 is the date of importation.
Counsel for the respondents further argued before this Court that the operation of section 21(1)(c) (iii) of Cap. 132 had been expressly suspended by the same Order as suspended the operation of Cap. 136. The material paragraph of that Order is paragraph 3 which is as follows:
”The operation of the Ordinances set forth in the Schedule hereto and of all subsidiary legislation made thereunder is hereby suspended.”
The contention of respondents’ counsel on this point is that section 27(1)(c) (iii) was included in the words “all subsidiary legislation made thereunder”, the word “thereunder” referring so far as this case is concerned, to Cap. 136 which is included in the Schedule to the Order. It is impossible to take this argument seriously. Section 27(1)(c)(iii) was added to the Customs Ordinance by an Order-in-Council made not under Cap. 136 but under section 27(3) of the Customs Ordinance itself. It obviously was not subsidiary legislation made under Cap. 136.
The third point made by respondents’ counsel was that the operation of section 27(1)(c)(iii) of Cap. 132 had been suspended by implication by virtue of the suspension of the operation of Cap. 136. Courts naturally do not readily hold that there has been legislation by implication. The position is clearly expressed in Beal’s Cardinal Rules of Interpretation (3rd Edition) at page 527.
“Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier one, that the two cannot stand together, in which case the maxim, Leges posteriores priores contrarias abrogant ‘, applies. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts unless there is a necessary inconsistency in the two Acts standing together.”
Here there is no inconsistency or repugnancy involved by section 27(1)(c)(iii) of Cap.132 remaining in force while the operation of Cap. 136 itself has been suspended. This may be seen clearly by examining what exactly the Magistrate’s Court has to decide in proceedings brought by the Comptroller under section 27(1)(c)(iii) of Cap. 132 claiming forfeiture under section 27(2) or section 118(2) in respect of goods within the category of section 27 (1)(c)(iii). The essential basis of forfeiture of such goods under section 27(2) is the act of importation of “regulated textiles” otherwise than in accordance with the provisions of Cap. 136. It follows therefore that the essential time is the date of importation. The questions which the Magistrate’s Court has to decide in such a case are as follows:-
(1) On what date or dates were the goods in question imported?
(2) Were they or any of them at the date of importation regulated textiles within the meaning of Cap 136 and, if so,
(3) Were they imported otherwise than in accordance with Cap. 136?
In this case, the answer to (1) was— “Between 28th October, 1938 and 2nd August 1939″. The answer to (2) requires further consideration as it depends on whether as a matter of fact the goods or any of them are held to come within the classifications laid down by the Proclamations made under Cap. 136. The answer to (3) is admittedly that in so far as they were at the date of importation “regulated textiles” within the meaning of Cap. 136 they were imported otherwise than in accordance with Cap. 136. It follows from the terms of section 27(2) of Cap. 132 that those of the goods in respect of which question (2) is answered in the affirmative must be ordered to be forfeited.
As regards importations after the date on which the operation of Cap. 136 was suspended and before the suspension is removed, it is obvious that a claim for forfeiture under section 27(2) and section 27(1)(c)(iii) of Cap. 132 could not succeed because question (2) would necessarily be answered in the negative as owing to the operation of Cap. 136 being suspended there would be at the date of importation, no “regulated textiles”. There is therefore nothing inconsistent or contradictory in section 27(1)(c)(iii) of Cap. 132 continuing in full force while the operation of Cap. 136 itself is suspended. It follows that there is no ground for holding that section 27(1)(c)(iii) of Cap. 132 was by implication suspended when Cap. 136 was suspended.
By the amendment made by Ordinance No. 10 of 1938 to section 11 of Cap.136 deleting sub-section (2) of that section and by the addition to the Customs Ordinance of section 27(1)(c)(iii) by Order-in-Council No. 29 of 1938 the law as regards forfeiture of goods imported in contravention of Cap. 136 was deliberately altered so as to take the matter of such forfeiture completely out of Cap. 136 and put it into the Customs Ordinance (Cap. 132). The effect of this deliberate alteration in the law was of course that the suspending of the operation of Cap. 136 did not affect the Comptroller’s right to issue a claim for forfeiture under section 27(1)(c)(iii) of Cap. 132 or the duty of the Magistrate’s Court to deal with that claim.
Section 27(1)(c)(iii) was added to the Customs Ordinance by the same authority as made the order suspending Cap. 136, namely the Governor-in-Council. A legislating authority is always presumed to know the position of existing legislation when it enacts fresh legislation and knowing of section 27(1)(c)(iii) of Cap. 132 the legislating authority (in this instance the Governor-in-Council) must be presumed to have elected not to suspend the operation of that sub-section. The omission to suspend the operation of section 27(1)(c)(iii) of Cap. 132 made it unnecessary to insert in the order suspending the operation of Cap. 136 a saving provision in regard to goods already imported, seized, and liable to forfeiture, for such goods remained liable to forfeiture proceedings under the sections of the Customs Ordinance already quoted which have at all material times been, and are still, in full force and effect.
From these premises it follows that the District Magistrate’s Court was right in trying the issues –
(1) as to whether the goods in question were at the time of importation “regulated textiles” within the meaning of Cap. 136 and
(2) as to whether they were imported otherwise than in accordance with Cap. 136.
But it is abundantly clear from the record that the trial of these issues proceeded upon what is by both sides now admitted to be an absolutely wrong basis namely that the second paragraph of each of the material Proclamations (No. 10 of 1938 and No. 7 of 1939) was intra vires and of full legal effect. It is now common ground that that paragraph in each Proclamation was ultra vires and of no legal effect. This point was not raised in the District Magistrate’s Court. It was taken for the first time in the Supreme Court and upheld by that Court, though resisted by counsel for the Comptroller of Customs. In this Court counsel has abandoned his resistance.
It is in our opinion impossible to say in regard to the majority of the articles of which forfeiture is claimed that the learned District Magistrate would have come to the same conclusions of fact if he and the parties to the proceedings before him had appreciated that the second paragraph of the Proclamations was of no legal effect, and consequently the case must be remitted to the District Magistrate for rehearing de novo in respect of those articles.
There are some articles, however, in regard to which no rehearing is necessary. These fall into three categories, viz:-
(a) Articles ordered by the District Magistrate to be released, in respect of which there was no appeal to the Supreme Court. These are:-
Items No. 3—3 Cases Artificial Silk Bedcovers
10—3 do. do. do.
16—2 do. do. do.
18—1 Case do. do.
19—3 Cases do. do.
20—1 Case do. do.
23—1 do. do. do.
41—3 Cases Satin Bedcovers.
The order releasing these articles is confirmed.
(b) Articles in respect of which the appellant abandoned his claim for forfeiture in this Court.
These are:-
Items No. 28—5 Cases Artificial Silk Scarves
43—2 do. do. do.
44—3 do. do. do.
45—1 Case do. do.
The appeal in respect of these articles is dismissed, and it is ordered that the articles be released.
(c) Articles which were ordered to be forfeited by the District Magistrate and in respect of which it is admitted by respondents that they are liable to be forfeited, if this action can be brought at all. These are:-
Items No. 7—1 Case Artificial Silk Mufflers
11—1. do. Rayon Organdie
34—2 Bales Cotton Drill
35—1 Case Fujitte Cream.
The order for the forfeiture of these is confirmed.
There remain 29 items still in dispute (hereinafter referred to as the “disputed articles”) viz:-
Items No. 1—1 Case Artificial Silk Tablecovers
2—6 Cases Artificial Silk Tablecovers
4—6 Cases Artificial Silk Bedcovers
5—16 Cases Brocade Shawls
6—30 do. do. do.
8—3 do. Table Covers
9—35 do. Brocade Shawls
12— 2 Bales Towel Handkerchiefs
13—1 Bale Towel Handkerchiefs
14—3 Cases Artificial Silk Shawls
15—4 do. do. do. Bedcovers
17—1 Case Artificial Silk Shawls
21—2 Bales Napkins
22—1 Bale Artificial Silk Shawls
24—10 Cases Artificial Silk Shawls
25—2 Bales Bedsheets
26—2 Bales Napkins
27—12 Bales Bedsheets
29—2 Bales Napkins
30—2 Cases Napkins
31—1 Bale Towel Handkerchiefs
32—1 Bale Napkins
33—4 Bales Cotton Netting
36—2 Cases Artificial Silk Table Covers
37—9 Cases Artificial Silk Table Covers
38—9 Cases Brocade Shawls
39—1 Bale Rayon Table Covers
40—8 Cases Artificial Silk Shawls
42—28 Bales Bedcovers
The appeal is allowed in respect of these disputed articles particularly is regard to Grounds of Appeal Nos. 1, 2 (a), (b) and (c), 3, 5 (2) and (6). It is agreed that Grounds 7 and 8 need not be dealt with.
The case is remitted to the District Magistrate’s Court for rehearing de novo as regards the disputed articles subject to the following directions in law:-
(1) That paragraph 2 of Proclamation No. 10 of 1938 and paragraph 2 of Proclamation No. 7 of 1939 are ultra vires and of no legal effect so that any classification by the Comptroller of Customs is not binding upon the Court.
(2) That the issue to be tried in regard to each item of the goods in question is whether the goods they were imported come under any of the classifications set up by paragraph 1 of those two Proclamations.
(3) That this issue is to be decided upon the evidence before the District Magistrate including the actual exhibits as well as the oral testimony.
(4) That the classes of textile goods set out in the first column of the schedule to Proclamations No. 10 of 1938 and No. 7 of 1939 must be interpreted strictly and not extended so as to include e.g. articles which may be used as, or which may be adapted for use as, head handkerchiefs. This, of course, does not mean that articles which in the opinion of the District Magistrate are really head handkerchiefs should escape forfeiture because they masquerade as something else.
(5) That by virtue of section 157 (1) of the Customs Ordinance, the onus of proof in regard to each item is upon the defendants and that if after hearing the oral testimony and inspecting the exhibits the District Magistrate remains in doubt as to whether any item is or is not within any of the classifications such item must be held to be within the classifications and forfeiture of such item must be ordered.
We will hear counsel on the question of costs, after they have had an opportunity of considering this judgment.
Further Order as to Costs
The Orders as to costs in both Courts below are set aside. The appellant is awarded costs in this Court assessed at £13 10s 11d. The respondents are awarded half their costs in the Supreme Court, namely £42 3s 0d.
Each party will bear his own costs of the first trial in the District Magistrate’s Court.