HIGH COURT, ACCRA
DATE: 26 MARCH 1971
ABBAN J.
CASES REFERRED TO
(1) De Keyser v British Railway Traffic and Electric Co., Ltd. [1936] 1 K.B. 224; 105 L.J.K.B. 74; 154 L.T. 158; 99 J.P. 403; 52 T.L.R. 73; 79 S.J. 904; 33 L.G.R. 463.
(2) Comptroller of Customs and Excise v. Akam (1955) 1 W.A.L.R. 51.
NATURE OF PROCEEDINGS
APPEAL from a decision of the District Court, Grade I, Tema, delivered on 6 February 1970, in which the respondents were exonerated from paying a penalty on uncustomed goods and the application for an order forfeiting the respondents’ vehicles were refused. The facts are fully set out in the judgment of the court.
COUNSEL
Ahlija, State Attorney, for the appellant.
P. Swaniker (Baddoo with him) for the respondents.
JUDGMENT OF ABBAN J.
This is an appeal from the judgment of the District Court, Grade I, Tema, delivered on 6 February 1970, in an action brought by the Comptroller of Customs and Excise.
The facts are that on 7 June 1969, at about 1.00 a.m. police officers, who were on patrol duty at a village called Lashibi near Ashiamang, came across a lot of goods suspected to be contraband. The goods, according to the police, consisted of cartons of cigarettes, matches and drinkables. At the time the police arrived at the spot where the said goods were, apart from the five taxi-cabs involved in this case, there were about fifteen other vehicles. But these fifteen other vehicles started off and drove away before the police had any chance to make any arrest. The respondents who were the drivers of the five taxi-cabs, also abandoned their taxi-cabs and escaped. The taxi-cabs and all the goods were sent to the Police Station at Tema and the respondents were later arrested. Proceedings were brought against the respondents by the Comptroller of Customs and Excise under section 197 (d) and (e) of the Customs Ordinance, Cap. 167 (1951 Rev.), claiming from the respondents sums of money being a penalty of treble the value of the uncustomed goods so seized.
The taxi-cabs did not belong to the respondents but they belonged to other persons who were, in the course of the proceedings, joined as co-defendants on their own application. It could be seen therefore that the drivers, that is the respondents, were mere employees or servants of those co-defendants. It appears from the affidavits filed by the co-defendants that the co-defendants joined the suit in order to defend their interest so far as the vehicles were concerned as they realised that in case judgment was against the respondents, those vehicles were likely to be confiscated.
[p.356] of [1971] GLR 353
The case for the respondents, briefly, was that on the day in question, they parked their vehicles at their usual taxi rank near the lorry park in Tema, waiting for customers. At about 7.30 p.m. a customer approached them and informed them that his vehicles carrying his goods had broken down at a place near Lashibi village, Ashiamang, and that he wanted to hire the taxi-cabs to go and cart those goods from the broken down vehicles. The respondents agreed and the customer hired their taxi-cabs. The respondents drove with the said customer to a spot near Lashibi village where they in fact saw about fifteen vehicles. When they got to the spot and before they loaded their taxi-cabs with any of those goods found at the place, a police vehicle appeared on the scene. They heard shouts of “shoot, shoot” from the said police car and all the vehicles they had met at the spot started off and escaped. The respondents did not know all that was about but for fear of their lives, as the police were threatening to shoot, they also escaped. They said they never knew that the goods they were hired to go and cart, and which they never carted, were contraband.
The remarkable thing about this case is that the police insisted that the respondents should produce the customer alleged to have hired their taxi-cabs to that spot. After days of searching, the respondents were able to get hold of this customer. He was sent to the police and a statement was collected from him. This man confessed to the police that it was he who hired the five taxi-cabs and that the goods seized by the police belonged to him. The police officer, who investigated this case admitted in his evidence before the learned trial magistrate, that the said man in fact confessed that he was the hirer of the five taxi-cabs and he also claimed to be the owner of the goods involved. Furthermore, the police admitted that when they arrived at the scene, apart from the five taxi-cabs driven by the respondents, they saw other vehicles and that they shouted “shoot, shoot” at the scene.
The learned trial magistrate after examining the evidence accepted the respondents’ story that they were not aware that the goods which they were hired to go and cart were uncustomed. He therefore held that since the respondents did not know that the goods were contraband, they could not be held liable to pay treble the value of those goods under section 197 (d) and (e) of Cap. 167. I agree with this view because knowledge on the part of a defendant that the goods are uncustomed is an essential requirement of that section. The words “knowingly acquire possession . . . with intent to defraud” and “or be in any way knowingly concerned . . .” appearing in section 197 (d) and (e) of Cap. 167, show clearly that before a person can be found liable under this section, it must be established that he had guilty knowledge. In the instant case, even though the goods were proved to be uncustomed, there was overwhelming evidence on record supporting the finding that the respondents, as well as the co-defendants, did not know that the goods concerned were uncustomed. Even if it is argued that the burden of proving absence of guilty knowledge was on the respondents, I would not hesitate to say that from the evidence, the respondents were able to discharge that burden
[p.357] of [1971] GLR 353
satisfactorily and the learned trial magistrate was perfectly right in exonerating the respondents from paying any penalty on the uncustomed goods as claimed by the Comptroller of Customs and Excise.
In this appeal the appellant, the Comptroller of Customs and Excise, does not, rightly in my view, quarrel about the correctness of this finding. His grievance is about the refusal of the learned magistrate to order the forfeiture of the five taxi-cabs. Only one ground of appeal was filed and argued by the learned state attorney, for the appellant, namely, “That the learned magistrate erred in not ordering the forfeiture of the defendants’ and co-defendants’ vehicles.” As I have already said, the goods were found to be uncustomed and the trial magistrate ordered that they should be forfeited. But, apart from discharging the respondents from paying a penalty of treble the value of the uncustomed goods, the learned magistrate also refused to make an order forfeiting the taxi-cabs. Learned counsel for the appellant therefore contended that once the goods are found to be uncustomed, as in this case, the learned trial magistrate was bound not only to order the forfeiture of the said goods, but also the taxi-cabs in which the uncustomed goods were discovered and that section 203 of Cap. 167 enjoins him to make that order. Counsel then relied on the case of De Keyser v. British Railway Traffic and Electric Co., Ltd. [1936] 1 K.B. 224 and on Comptroller of Customs and Excise v. Akam (1955) 1 W.A.L.R. 51. Section 203 of Cap. 167 reads, inter alia, as follows: “all . . . carriages, together with . . . things made use of in the importation, attempted importation, landing, removal, conveyance . . . of any uncustomed, prohibited or restricted goods . . . shall be forfeited; . . .” From the judgment, it appears that the learned trial magistrate’s refusal to make an order forfeiting the vehicles was based on the sole ground that the co-defendants who were the owners of the vehicles did not know that the goods were contraband. That is, they had no knowledge of the illegal use to which their vehicles were being put and that in absence of guilty knowledge on the part of the owners of the vehicles, those vehicles could not be forfeited.
I think learned counsel for the appellant is perfectly right in his interpretation of section 203 of Cap. 167 and in that respect he is justified in criticising the basis of the learned magistrate’s said refusal. Surely, there is a good and valid ground on the record for refusing to order the forfeiture of the vehicles, and I think the particular reason or ground on which the learned magistrate purported to have based his refusal is invalid and untenable. The absence of guilty knowledge on the part of the person in whose possession uncustomed goods are discovered may be a good defence to an action brought under section 197 (d) and
(e) of Cap. 167, that is, for a penalty of treble the value of those goods; but, certainly, this absence of guilty knowledge cannot be a valid ground for not ordering the forfeiture of the goods which have been proved to be uncustomed. Once the goods are proved to be uncustomed, the court has no alternative but to make an order forfeiting them, even though the person in whose possession they were discovered may be exonerated from paying any penalty because of the absence of guilty knowledge.
[p.358] of [1971] GLR 353
Concerning vehicles used in conveying uncustomed goods, I am of the opinion that section 203 of Cap. 167 casts a duty on the court to exercise its power of forfeiture once certain facts are proved. That is, the section imposes a statutory forfeiture. Consequently, where the court finds that a vehicle has been used in conveying, importing or otherwise used in transporting goods which have been proved to be uncustomed, the court, irrespective of the innocent mind of its owner or its driver, will have no option or choice in the matter but to order the forfeiture of the particular vehicle involved. Under section 203 of Cap. 167 it seems the legislature intended not to allow the court to exercise its discretion in such a situation. This construction put on section 203 may result in hardship to innocent owners of vehicles. But, I think, that is the only way to give effect to that section. The hardship, likely to arise, has been taken care of by section 206 of Cap. 167 where sufficient provision is made empowering the President in deserving cases to “direct restoration of such seizure, whether condemnation shall have taken place or not, or waive proceedings, . . . on any terms and conditions as he shall see fit.”
Turning now to the De Keyser and Akam cases (supra) relied on by counsel for the appellant, I think these two cases are distinguishable from the present case. It was proved beyond doubt in the De Keyser case that the motor tank wagon was made use of in the conveyance of the oils liable to forfeiture under the English Customs Acts. In the Akam case, it was proved that the vehicle concerned had actually been used in importing the smuggled cigarettes into this country. But in the case under consideration, the uncustomed goods were discovered at a certain spot and the evidence clearly established that they had been conveyed to that spot by other vehicles and not by the five taxi-cabs in dispute. The taxi-cabs were hired to go and cart them from that spot to an unknown place; but as soon as they got to the spot, the police also arrived. As a result the drivers of the taxi-cabs, in fact, never had the opportunity of conveying or carting away any of those uncustomed goods. In those circumstances, how can it be said that the five taxi-cabs were used in conveying, importing, landing or in transporting, the said uncustomed goods.
The respondents in their evidence stated that they attempted to load their vehicles with certain goods which were in sacks and which appeared to be cotton prints; but that they never attempted to load drinkables or cigarettes and that they never in fact loaded any of the goods tendered in evidence at the trial into their vehicles. There is a clear indication on the record that the police did not tender in evidence all of the goods discovered at that spot. In fact, the evidence of the investigating officer, the fourth prosecution witness, at page 23 line 17 of the record of proceedings confirms this view. He said (the emphasis is mine): “some of the goods in question are in court and are tendered en block.” If these are “some of the goods in question” then where are the remaining goods? Were those goods not tendered found to be customed and that was why the police never tendered them? Or were they also contraband but the police just refused to tender them? It is possible that the respondents rather attempted
[p.359] of [1971] GLR 353
to load some of those goods which were never tendered and whose identity is not known.
Furthermore, if the police actually saw the exhibits in the five taxi-cabs one would have expected the investigating officer, the fourth prosecution witness, in view of the denial by the respondents, to tell the court which of those exhibits were discovered in each of the five taxi-cabs. Unfortunately, the witness was unable to do this. In fact from the evidence on record, it is very difficult to say whether any of those goods tendered in evidence were ever discovered in the taxi-cabs. However, the most important point is that none of the taxi-cabs was ever used in the conveyance or transportation of those goods. Consequently, the vehicles cannot be forfeited as provided under section 203 of Cap. 167. Thus, even though I disagree wholly with the reason given by the learned trial magistrate in support of his refusal to order the forfeiture of the vehicles, nevertheless, for the above stated reasons, I think it was open to him on the evidence, to come to the conclusion he did. In the circumstances, the appeal fails and is accordingly dismissed. I make no order as to costs.
DECISION
Appeal dismissed
T. G. K.
