HIGH COURT, SEKONDI
Date: 24 JULY 1975
EDUSEI J
CASE REFERRED TO
Comptroller of Customs and Excise v. Nsiah, High Court, Sekondi, 26 June 1973, unreported; digested in (1974) 6 R.G.L. 85.
NATURE OF PROCEEDINGS
APPEAL by the plaintiff against refusal by a district court to order recovery of a penalty of treble the value of goods owned by the defendants and a cross-appeal by the defendants against the order for forfeiture made by the district court in respect of the goods. The facts are sufficiently stated in the judgment.
COUNSEL
Ahlijah, Principal State Attorney, for the plaintiff.
Anthony Forson for the first defendant.
W. A. H. Amarteifio for the second defendant.
JUDGMENT OF EDUSEI J.
There are two appeals in this case: The Comptroller of Customs and Excise (hereinafter referred to as the plaintiff) has appealed against the judgment of the trial court for its failure to order recovery of a penalty against Private John Coker and Enoch Darko Koranteng (hereinafter referred to as the first and second defendants respectively). The first defendant is a soldier of the Ghana Army stationed at Apremdu Barracks, Takoradi, and the second defendant is a yard foreman of the Railway and Ports Authority, Takoradi. The first and second defendants have also appealed against the order of forfeiture of the trial court. The judgment was delivered by Mr. T. B. G. S. Addo, sitting at the District Court Grade I, Sekondi, on 21 March 1974.
The claim reads as follows:
“The plaintiff’s claim against the defendants is for an amount of ¢2,000.00 being penalty of treble the value of two fridges, four television sets, two sewing machines and 48 bottles of Heinekens beer and their forfeiture.”
The plaintiff’s evidence is that between 8 p.m. and 9 p.m. on 21 December 1972, the police on duty at the Takoradi harbour area saw the above-named goods loaded in a van which stood by the No. 4 shed. Whilst they were examining their find, the first defendant arrived on the scene and claimed ownership of these goods. He was asked to produce the receipt showing that he had paid duties on them. He was unable to produce such receipt and he was thus arrested. As the first defendant was being led to the Harbour Police Station, the second defendant also appeared and he also claimed some of the goods as his.
[p.420] of [1975] 2 GLR 418
The evidence shows that these goods were bought by the defendants from the vessel, M. V. Bosumtwi, when it docked at the Takoradi harbour and, according to the defendants, they kept the goods in the van so that they could pay the appropriate duty the following day since the customs office had then closed. However, there was evidence that whilst the goods were in the van, a locomotive engine was moving towards the van, apparently, to connect it and move the van containing the goods from the harbour area. The evidence further indicates that as soon as the driver of the locomotive engine saw policemen by the van, he reversed his engine, and there was no connection to the van. Again there is evidence that it was the second defendant who told the third prosecution witness, also a yard foreman, that the Ghana National Trading Corporation (hereinafter referred to as the G.N.T.C.) had requisitioned four vans at No. 4 shed to load their merchandise. It was on the strength of this representation that the third prosecution witness positioned two vans in front of No. 4 shed for loading the next day. However, the evidence of the fourth prosecution witness, a representative of the G.N.T.C. at the harbour, said that he never requested for any vans to be positioned at the No. 4 shed during the month of December 1972, but rather the G.N.T.C. had vans at No. 2 shed on 21 December 1972, and they finished loading them with granulated sugar by 7 p.m. on that day.
On the evidence the only reasonable inference was that the defendants’ intention was to carry away their goods by means of the engine and the van so as to avoid payment of the customs duty, and the trial magistrate was justified in his finding. The defendants indeed attempted to evade payment of customs duty which is either punishable as a crime or subject to proceedings to be taken to recover a penalty under the Customs and Excise Decree, 1972 (N.R.C.D. 114). Nonetheless, the trial magistrate purporting to rely on the authority of Comptroller of Customs and Excise v. Nsiah, High Court, Sekondi, 26 June 1973, unreported; digested in (1974) 6 R.G.L. 85 dismissed the plaintiff’s claim because the goods had not then left the security area of the harbour. I take this opportunity to explain my decision in the Nsiah case because the facts in that case are quite different from the present one and that decision cannot be relied upon to dismiss the plaintiff’s claim for ¢2,000.00 penalty, having regard to the evidence in this case.
In the Nsiah case, the appellant who had purchased some wrist watches from a foreign vessel that docked at the Takoradi harbour was challenged on the gangway of the ship as he was coming down from the ship. He readily stated that he had bought some watches and would keep them at the harbour area and pay duty on them the next day since the customs office at the harbour had closed for the day. It was on these facts that Nsiah was sued for treble the value of the wrist watches and, on his appeal to the High Court, Sekondi, the appeal was allowed because the police acted too soon in arresting him on the gangway of the ship when there was nothing to indicate that he wanted to evade payment of customs duty. Nsiah had not even come down anywhere near the customs office nor any of the sheds at the harbour where perhaps he could have handed over his
[p.421] of [1975] 2 GLR 418
goods to an official against a receipt so that he could come to pay the duty the next day. The facts in the Nsiah case, therefore, are quite different from those in the present one, where an attempt to convey the goods away in a van from the harbour area would have been made but for the presence of the policemen around. The decision in the Nsiah case must therefore be confined to its peculiar facts and the learned state attorney also shares the same view that the decision in the Nsiah case was correct on its own facts. I think the learned magistrate therefore erred in relying on the Nsiah case to dismiss the claim for ¢2,000.00 penalty of treble the value of the goods in question.
The learned district magistrate also made an order for forfeiture purporting to act under section 84 (3) of N.R.C.D. 114. I shall refer to this aspect of the matter later on.
However, I now come to consider one ground of appeal which, in my view, is so fundamental to the success or otherwise of the whole appeal. The ground of appeal is stated thus: “the learned trial magistrate ought to have non-suited the plaintiff since the plaintiff’s writ of summons did not disclose any cause of action.” I have already set out the particulars of claim which were endorsed on the writ of summons of the plaintiff. There appears to be some arguable point in this ground of appeal. It is a well-established principle of law or procedure that every endorsement on a writ of summons must show the nature of the cause of action against the defendant. Here the plaintiff is claiming ¢2,000.00 being a penalty of treble the value of certain goods. What is the basis for this claim? Does the claim arise out of a breach of contract entered into between the parties, or does any legislation give a right to the plaintiff to claim treble the value of any goods in certain circumstances? The writ does not indicate to the defendants why the plaintiff is claiming ¢2,000.00 being treble the value of the goods mentioned therein. My view is that a defendant is entitled to know the case against him. In this case the defendants are entitled to know why the Comptroller of Customs and Excise is making a claim for ¢2,000.00 which is treble the value of their goods they purchased on a ship that docked at the harbour. If the Comptroller of Customs bases his claim on a statute then it is incumbent on him to state the particular statute and the section, if any, that gives him the right to sue for such a claim.
It is true that when evidence was closed and the defendants’ counsel had addressed the court, the learned state attorney for the plaintiff, at the time he also opened his address, then referred to the legislation that gave rise to the cause of action. He said, “this writ falls under section 49 (1) (d) of N.R.C.D. 114.” I think it was too late in the day for the learned state attorney at that stage to make reference to the legislation. In any case he did not apply to amend his particulars of claim, even at that late hour, and the writ unamended cannot give rise to any cause of action.
Every action is initiated by a writ of summons which must clearly indicate the cause of action. There is an example of an endorsement of a writ for a penalty claim in Chitty’s Queen’s Bench Forms (18th ed) at pp.
[p.422] of [1975] 2 GLR 418
54 and 57, “The plaintiff’s claim is for £—for penalties under the statute […] .” Expanded, the claim in the instant case will read something like:
“The plaintiff’s claim against the defendants is for an amount of ¢2,000.00 being penalty of treble the value of two fridges, four television sets, two sewing machines and 48 bottles of Heinekens beer under section 49 (1) (d) and (2) thereof of the Customs and Excise Decree, 1972 (N.R.C.D. 114).”
If the claim is thus couched the defendants then will know the nature of the claim against them. They will then know why the plaintiff is claiming the amount in the writ of summons. The facts relied on in proof of their claim will also be set out briefly in the affidavit which is usually sworn to by the plaintiff or someone on his behalf if the case is to be put on the undefended list as was in the case here. The affidavit sworn to by Daniel Yaw Owusu did not state the basis of the claim for the ¢2,000.00. I think it was necessary for Daniel Yaw Owusu in his affidavit to have stated, albeit succinctly, that the defendants attempted to evade payment of customs duty by concealing the goods in a van and added that “the Comptroller is claiming as per his writ.” Such an averment would have indicated to the defendants at least the case they were to meet.
I think also, in such claims by the Comptroller of Customs and Excise, it is necessary that a reference is made to section 49 (2) of N.R.C.D. 114 because it is that subsection that entitles the comptroller to sue for treble the value of the goods or ¢2,000.00 whichever is the greater. The mere reference to section 49 (1) (d) only shows that a criminal prosecution is intended. It is subsection (2) in conjunction with subsection (1) (d) of section 49 of N.R.C.D. 114 that makes the case of a civil nature.
The learned state attorney when he applied for the issue of the writ of summons in the District Court Grade I, Sekondi, referred to section 88 (1) of N.R.C.D. 114. He said, “Please issue a writ of summons in the above cause under section 88 (1) of the Customs and Excise Decree, 1972 (N.R.C.D. 114).” This section merely shows that penalties and forfeitures, etc. under N.R.C.D. 114 may be sued for by civil proceedings. This section strengthens the view that such claims by the Comptroller of Customs and Excise under N.R.C.D. 114 are of a civil nature and the issue of the writ of summons must therefore disclose a reasonable cause of action.
The writ of summons in this case does not disclose a reasonable cause of action and this, in my view, is fatal. It was not even cured by the affidavit if that was taken to be something in the nature of a statement of claim. This ground of appeal therefore succeeds.
I now come to the question of forfeiture. The learned magistrate referred to section 84 (3) and ordered forfeiture of the goods and the defendants have also appealed against this order of forfeiture. Section 84 (3) reads:
“Any person claiming that anything seized as liable to forfeiture is not so liable shall, within thirty days from the date of the notice of seizure or, if no such notice has been given to him or published as
[p.423] of [1975] 2 GLR 418
aforesaid, within thirty days from the date of the seizure, give written notice of his claim to the Comptroller.” I think the most important words in this subsection are those I have emphasised, i.e. “anything seized as liable to forfeiture.” And the question of the goods being liable to forfeiture is a condition precedent to the giving of notice as mentioned in section 84 (3). The goods will only be liable to forfeiture if the defendants committed any of the acts mentioned in section 49 (1) of N.R.C.D. 114 since the learned state attorney indicated at the beginning of his address at the court below that the claim fell under section 49 (1) (d) of N.R.C.D. 114. In fact the comptroller claimed forfeiture of the goods in his writ of summons and the writ of summons does not show how the defendants are liable as to forfeiture of their goods.
Section 49 (2) of the Customs and Excise Decree, 1972, says, “and all goods in respect of which the offence was committed shall be forfeited . . .” What offence did the defendants commit in respect of their goods having regard to the claim on the writ of summons? The writ does not disclose any offence committed in respect of the goods. How can the Comptroller of Customs and Excise then assert that the defendants’ goods are liable to forfeiture? The question of forfeiture of the goods in this particular case is a consequential relief and since the main claim has failed the order as to forfeiture could not have been made. The question of applying the provisions of section 84 of N.R.C.D. 114 did not arise at all and the magistrate erred in so doing. I therefore allow the appeal and set aside the order as to forfeiture.
Even though I disagree with the reasons given by the magistrate for refusing the claim of the plaintiff for ¢2,000.00 penalty, nevertheless, for the reasons stated in this judgment (the writ of summons disclosing no cause of action) it was open to him to come to the same conclusion and I accordingly dismiss the appeal of the plaintiff. There will be no order as to costs.
In view of this judgment I order that the Comptroller of Customs and Excise do assess the appropriate duties on the goods of the defendants for them to pay the same before delivery to them of such goods.
DECISION
Appeal by plaintiff dismissed.
Cross-appeal by defendants allowed.
S. Y. B.-B.
