KASSAR v. COMPTROLLER OF CUSTOMS AND EXCISE [1963] 1 GLR 109

DIVISION: IN THE SUPREME COURT

DATE: 13TH FEBRUARY, 1963

BEFORE: SARKODEE-ADOO, CRABBE AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Dilworth v. Commissioner of Stamps [1899] A.C.105, P.C.

(2) Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189; [1951] 2 All E.R. 839: [1951] 2 T.L.R 935, H.L.

(3) Gundry v. Pinniger (1852) 21 L.J. Ch. 405

NATURE OF PROCEEDINGS

Appeal from a judgment of Mrs. Jiagge J. in the High Court dismissing a claim under the Customs Ordinance, Cap. 167 (1951 Rev.).

COUNSEL

S.M. Cudjoe for appellant.

No appearance by or on behalf of the respondent.

JUDGMENT OF SARKORDEE-ADOO J.S.C.

Sarkodee-Adoo J.S.C. delivered the judgment of the court. The appellant’s claim was for: “(a) A declaration that the goods imported on bill of entry numbers D60787 dated the 9th November, 1960, D1552 dated the 9th January, 1961, and D5167 of the 23rd January, 1961 the total value of which exceeds £G500 are properly fents within the meaning of section 3 of the Customs Ordinance dutiable at two shillings per pound weight in accordance with Comptroller of Customs and Excise own previous classification and with those of his predecessors of goods of similar design, quality and description of the goods entered to the said bills of entry as cotton piece goods dutiable at one shilling per square yard is against his own previous classification and against the classifications of his predecessors and also against substantive law and therefore incorrect.

“(b) An order for the release of the said goods now detained by the Comptroller of Customs.” The respondent denied the appellant’s claim and averred that the said goods are in fact cotton printed piece goods in respect of which duty is payable at the rate specified in item 10 (1) (a) of Part I of the First Schedule to the Customs Ordinance1.

[p. 111] of [1963] 1 GLR 109

By consent the trial proceeded on the following issues: (1) whether or not, the goods which are the subject-matter of this suit were properly entered as “fents” by the plaintiff; (2) whether or not, if the said goods are “fents”, the defendant’s detention of the goods was justified by law. At the trial the appellant led evidence to contest the classification of the exhibits and insisted that they were “fents” and further relied on the interpretation thereof by the London Chamber of Commerce, Information Department, as understood in that country, and also placed reliance on A.E. Blanco’s Piece Goods Manual for the definition therein contained.

In the course of the trial, however, the appellant by his counsel conceded to the classification of all the exhibits except exhibit M which he maintained was wrongly classified as piece goods and should be properly declared as “fents.”

The ground argued in support of the appeal is that the judgment is against the weight of evidence on the record which shows that the materials are all fents.

This appeal turns on the classification of exhibit M, which has been thoroughly examined by this court. This exhibit contains pieces of material all of two yards in length and of regular length. By Section 3 of the customs Ordinance,

“Fents include:—

(a) Remnants of cloth of irregular lengths not exceeding six yards in length: and

(b) Patchwork quilts and all articles made of small pieces of cloth sewn together.” Examination of exhibit M clearly shows that they are not remnants of cloth of irregular length but piece goods and patently not within the classification of “fents” as contemplated by the section. The learned trial judge so found and I am wholly in agreement with that finding.

This conclusion would have disposed of this appeal save for the relief sought by the appellant before this court in the terms following: “Relief sought from the Supreme Court is an exhaustive definition of fents and the reversal of the classification.” Section 3 of the Customs Ordinance is, beyond all questions, an interpretation cause, and must have been intended by the legislature to be taken in to account in interpreting the word “fents.” It is not said in terms that “fents” shall mean one or other of the things which are enumerated, but that it shall “include” them. In this connection the maxim inclusio unius est exclusio alterius which is another version of designatio unius est exclusio alterius, et expressum facit cessare tacitum is in point. To mention one thing is to exclude another; and when you mention a thing expressly, anything which you have not mentioned is out of the matter.

[p.112] of [1963] 1 GLR 109

In the Privy Council case of Dilworth v. Commissioner of Stamps,2 (a New Zealand case), Lord Watson delivering the judgment of their Lordships said:

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrase occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation cause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purpose of the Act, must invariably attached to these words or expressions.”

The language of the section is plain and admits of one meaning. It must be given its natural and ordinary meaning.

The rule of construction is that the legislature must be presumed to have meant what they have actually expressed: see Magor and St. Mellons Rural District Council v. Newport Corporation,3 see also Gundry v. Pinniger.4

A construction must be based on the view that Parliament would legislate only for the purpose of bringing about an effective result. The legislature is not controlled in its discretion by the courts, and when it errs or makes omissions, its errors or omissions can only be corrected or cured by itself. For the above reasons the relief sought has been misconceived and cannot be entertained. In the result, I would accordingly dismiss the appeal. In the particular circumstances of the case there will be no order as to costs.

DECISION

Appeal dismissed.

J.D.