SAM v. COMPTROLLER OF CUSTOMS AND EXCISE [1971] 1 GLR 289

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 1 MARCH 1971

BEFORE: TAYLOR 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) Anani v. The King (1951) 13 W.A.C.A. 196.

(3) Comptroller of Customs and Excise v. Akam (1955) 1 W.A.L.R. 51.

(4) In re Bethlem Hospital (1875) L.R. 19 Eq. 457.

(5) In re Dark; Glover v. Dark [1954] 1 Ch. 291; [1954] 2 W.L.R. 509; 98 S.J. 196.

(6) Attorney-General v. Schiers (1835) 2 C.M. & R. 286; S.C. 5 Tyr. 1029; 1 Gale 223; 4 L.J.Ex. 324; 150 E.R. 124.

(7) Attorney-General v. Hunter [1949] 2 K.B. 111; [1949] 1 All E.R. 1006; [1949] L.J.R. 1286; 65 T.L.R. 462; 93 S.J. 302.

(8) Lord Advocate v. Crookshanks (1888) 15 R. 995.

(9) Comptroller of Customs and Excise v. Scabah, Circuit Court,15 May 1966, unreported.

(10) Ernest (Prince) of Hanover v. Attorney-General [1956] Ch. 188;[1955] 3 W.L.R. 868; 99 S.J. 871, C.A.

[p.291] of [1971] 1 GLR 289

(11) Heydon’s Case (1584) 3 Co. Rep. 7a; 76 E.R. 637.

(12) Becke v. Smith (1836) 2 M. & W. 191; 6 L.J.Ex. 54; 46 R.R. 567; 150 E.R. 724.

(13) Warburton v. Loveland (1832) Hud. & Bro. 623; 5 E.R. 499.

(14) Magor and St. Mellons R.D.C. v. Newport Corporation [1952] A.C. 189; [1951] 2 T.L.R. 935; 115 J.P. 613; [1951] 2 All E.R. 839, H.L.; affirming [1950] 2 All E.R. 1226, C.A.

(15) Attorney-General v. Lockwood (1842) 9 M. & W. 378; 6 Jur. 171; 152 E.R. 160.

(16) Miller v. Salomons (1853) 7 Ex. 475; 21 L.J.Ex. 161.

(17) Jubb v. Hull Dock Co. (1846) 9 Q.B. 443; 3 Ry. Cas. 795; 15 L.J.Q.B. 403; 11 Jur. 15; 72 R.R. 332.

(18) Wigton v. Snaith (1851) 16 Q.B. 496; 20 L.J.M.C. 110; 15 Jur. 346.

(19) Ex parte Rashleigh (1875) 2 Ch.D. 9; 45 L.J.Bcy. 29; 34 L.T. 193; 24 W.R. 495, C.A.

(20) Norman v. Norman [1950] W.N. 230; 66 T.L.R. (Pt. 1) 1045; 94 S.J. 354; [1950] 1 All E.R. 1082; 1 C.L.C. 3061.

(21) Salmon v. Duncombe (1886) 11 App.Cas. 627; 55 L.J.P.C. 69; 55 L.T. 446.

(22) R. v. Vasey [1905] 2 K.B. 748; 75 L.J.K.B. 117.

(23) Sutherland Publishing Co. v. Caxton Publishing Co. [1938] 1Ch. 174; [1937] 4 All E.R. 405, C.A.

(24) Kwadu v. The Republic [1971] 1 G.L.R. 272; digested in (1971) C. C. 49.

(25) Salomon and Co., Ltd. v. Salomon [1897] A.C. 22, H.L.

(26) Fulani v. The State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67.

(27) Scranton’s Trustee v. Pearse [1922] 2 Ch. 87, C.A.

(28) Fredericks v. Payne (1862) 1 H. & C. 584; 32 L.J.M.C. 14; 7 L.T. 329; 27 J.P. 104; 158 E.R. 1016.

(29) R. v. Tonbridge Overseers (1884) 13 Q.B.D. 339; 53 L.J.Q.B. 488; 51 L.T. 179; 48 J.P. 740; 33 W.R. 24, C.A.

(30) Great Western Railway Co. v. Bater [1922] 2 A. C. 1, H. L.

(31) Lee v. Bude and Torrington Railway Co. (1871) L.R. 6 C.P. 576; 40 L.J.C.P. 285; 24 L.T. 827; 19 W.R. 954.

(32) Re Akoto [1961] G.L.R. (Pt. II) 523, S.C.

(33) Comptroller of Customs v. Moncar, Court of Appeal, 13 February 1969, unreported.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the district magistrate’s court grade I in which the appellant’s vehicle was ordered to be forfeited since it had been used in the conveyance of uncustomed goods contrary to section 203 of Cap. 167. The facts are fully set out in the judgment of Taylor J.

COUNSEL

K. Asumadu-Sekyi for the appellant.

C.S.K. Agbanu, Assistant State Attorney, for the respondent.

JUDGMENT OF TAYLOR J.

The details of the facts of this case, although not too relevant to the decision, are apparently necessary for the purpose of answering a

[p.292] of [1971] 1 GLR 289 ground of appeal which was urged on me with such force as would lead an onlooker unacquainted with the facts to the unfortunate conclusion that the point was probably decisive of the matters in controversy between the parties; whereas, in fact, that point is irrelevant except that it involves an argument which on the best authority, it is improper to make and counsel is not entitled to make to this court in the circumstances. It is for this reason that I advert to the facts of this case in such great detail. The defendant-appellant (hereinafter called the appellant) is a driver living in Accra and apparently the owner of vehicle No. GL 2818, a Mercedes Benz bus. He plies between Accra and Kumasi in the normal course of his business conveying passengers to and from Kumasi. On 19 March 1970 the appellant was in Accra. He gave the ignition key of his vehicle to one of the bookers who came to his house with his mate. They drove the car to the lorry station for passengers. The bookers are a group of agents who collect money from passengers, load the vehicles with the help of the mate and when the vehicle is full they collect their commission and hand over the balance of the money to the driver who can then drive off to his destination. The drivers do not themselves load the vehicles. In this case the bookers put loads under the vehicle’s canopy and some in the boot and the money was paid to the driver, less the commission and he left Accra for Kumasi at about 9.30 p.m. with twenty passengers. The key to the boot was with the mate since it was his duty to unload the luggage.

In the meantime, in the morning of 19 March 1970, the border guard police at Kumasi had received information by telephone that vehicle No. GL 2818 was conveying contraband goods from Accra to Kumasi and at 8.30 a.m. three police officers, who were detailed to intercept the vehicle, left for the Ejisu road barrier. There was some confusion in the evidence as to who actually received the message. Two of the policemen (the second and third witnesses for the plaintiff) sent to the road barrier were close friends. The third policeman (the plaintiff’s third witness) had once had a quarrel with the appellant, the quarrel having arisen out of allegations that the plaintiff’s third witness was flirting with the appellant’s wife which led to the appellant assaulting him. The appellant was tried for the offence, convicted and fined N¢20.00; N¢10.00 of this fine was given to the plaintiff’s third witness as compensation. While the police officers were thus on duty at the barrier, vehicle No. GL 2818 driven by the appellant arrived at about 2.30 a.m. on 20 March 1970. The appellant was asked to open the boot of the bus but he refused, presumably because he feared that the plaintiff’s second and third witnesses were out to implicate him in a crime. In any case the police officers, acting under the instructions of a superior officer, arrested the appellant and sent him to the Ejisu police station together with the vehicle and passengers. He was searched, stripped of his clothes except his drawers and placed in a cell. In the meantime the appellant had sent his mate, who had the key to the boot, to Kumasi to inform the chief driver to come and bail him. [p.293] of [1971] 1 GLR 289

In the morning the appellant together with his vehicle was conveyed to the Kumasi Border Guard police station. He was asked to produce the key, which he did and when the boot was opened two boxes were found, each containing contraband goods. Under the canopy three portmanteaux were also found to contain contraband goods. These uncustomed goods were 555 and King Size cigarettes. The passengers at the Kumasi Border Guard police station were only eleven instead of the twenty with whom the driver had set out from Accra and none of them claimed the goods. The appellant said he did not know the owners. It was suggested that perhaps some of the passengers, apparently at large, were the owners and that since the police had arrested the driver and taken possession of the goods they had naturally escaped. This suggestion found favour with the district magistrate and he held that the appellant was innocent of any customs offence and the uncustomed goods were not his.

Now the claim of the Comptroller of Customs brought under the Customs Ordinance, Cap. 167 (1951 Rev.), was founded on these facts and it appears in the summons as follows:

“The plaintiff’s claim is for an amount of N¢6,176.94 being a penalty of treble the duty paid value of the said goods which originally have a duty paid value of N¢2,058 under the Customs Ordinance, Cap. 167 (1951 Rev.), section 197 (a) (b) (c) (d) and (e) and the Sales Tax Act, 1965 (Act 257), at eleven and one-half per cent. in respect of the said goods and for the forfeiture of the goods under section 232 of the said Ordinance and section 203 which goods were claimed to have been brought by you.

(3) On the same date the defendant was knowingly concerned in the fraudulent evasion of the restriction applicable to the said goods.

(4) By reason whereof the defendant has contravened sections 197 (a) (b) (c) (d) and (e) and 232 of the

Customs Ordinance.

(5) The defendant has as a result incurred the penalty of N¢6,176.94, being treble the value of the goods.

(6) The plaintiff therefore claims the penalty of N¢6,176.94 and the forfeiture of the said goods plus carriage Mercedes Benz No. GL 2818.”

Having regard to his central findings, which any tribunal bent on doing justice would make, findings which in my opinion are reasonable and are supported by the evidence, the district magistrate grade 1 decided that the claim of the Comptroller of Customs for the amount of N¢6,176.94 representing treble the value of the goods must fail. He held however that the Comptroller’s claim for the forfeiture of the goods must succeed as the goods were uncustomed goods. Nobody is quarrelling with these conclusions but the magistrate after a most anxious reflection, his soul writhing in agony for his sense of justice would seem to have been scandalized decided that although the appellant had committed no wrong, civil or criminal, nevertheless his vehicle must be forfeited to the state. He must [p.294] of [1971] 1 GLR 289 have been very unhappy indeed at his decision which he must have considered morally wrong but legally right because he advised the appellant to appeal. However, he did order the forfeiture of the vehicle of a man who had committed no offence civil or criminal and he did this relying on the apparent peremptory language of section 203 of the Customs Ordinance and the interpretation of the corresponding provision in the English Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36), found in De Keyser v. British Railway Traffic and Electric Co., Ltd. [1936] 1 K.B. 224. He thought there was no local authority on the point.

The point for decision, simple to formulate, is merely this. Is the reasoning in the De Keyser case authority for the proposition that an owner of a vehicle, as the appellant is, is liable to suffer the forfeiture of his vehicle although he has done nothing against the customs laws? There is undoubtedly language in the De Keyser case which would seem to so decide; and the issue is if the De Keyser case did so decide, is it right and ought I to follow it? This point was unfortunately not canvassed with any depth before me, although I called for argument on it. Counsel for the Comptroller of Customs stated boldly that the decision in the De Keyser case is right. Counsel for the appellant did not seek to impugn the decision. Before this court the following grounds of appeal were filed on 9 September 1970:

“(1) That the order of the court that the appellant’s vehicle could properly be seized is bad, unreasonable and erroneous in law.

(2) The trial magistrate misdirected himself on the law which misdirection constitutes errors of law and renders the judgment bad.

(3) The trial magistrate failed to direct himself on the law which non-direction constitutes errors of law.

(4) The order that the vehicle of the appellant is properly seizable on the facts of this case is harsh, erroneously unconscionable and should be set aside.”

On 15 December 1970 the following additional grounds were also filed:

“(1) Having found as a fact:

(a) That the information received by the border guards was that the vehicle of the defendant No. GL 2818 was coming from Accra to Kumasi with contraband goods and that, the information was received in the morning;

(b) That the vehicle was loaded by bookmen at the Liberation Circle at about 7.30 p.m. and that the bookmen did not examine the loads of the passengers before putting them on the vehicle, the eighth witness for the plaintiff said that this was what happened and that he paid his fare to the bookmen who issued him with a ticket;

[p.295] of [1971] 1 GLR 289

(c) That there had previously been a quarrel between the third witness for the plaintiff and the defendant over the allegation by the defendant that the third witness for the plaintiff was flirting with the wife and that the defendant assaulted the third witness for the plaintiff for which he was charged before the Manhyia District Court Grade II and fined and the third witness for the plaintiff was offered compensation out of the fine paid; then the trial magistrate ought to have found that, the plaintiff’s case was brought mala fides and in any event, should have drawn the inference that the appellant had been ‘fixed’ and to have refused to condemn vehicle GL 2818 to forfeiture.

(2) The rapidity with which the action was instituted in departure of the plaintiff’s own practice demonstrates the mala fides in the action and rendered the action premature.”

Counsel first argued the additional grounds together. He drew attention to the matters in (1) (a) (b) and (c) (supra) and to the unsatisfactory nature of the evidence relating to the report which the police received in the morning, and suggested that as the evidence showed that the vehicle in fact left at about 8.30 p.m. and not in the morning, the information and its receipt must be considered false. He suggested that this, when considered together with the admitted quarrel which ended in court with the appellant paying compensation to the third witness of the plaintiff ought to have led the magistrate to find as a fact that the second and third witnesses of the plaintiff deliberately fabricated the evidence and indeed planted the contraband goods in the vehicle to implicate the appellant.

I did not call upon counsel for the respondent to answer this outrageous argument. This charge, so recklessly made, against the two police officers who were merely discharging their duty cannot be supported by any evidence on the record and it is obvious to me that the matters referred to by counsel for the appellant cannot by any legitimate construction support a charge as grave as is here made against the reputation and integrity of these public officers. Counsel who appeared in the court below did not lead any evidence whatsoever to enable him to advance the charges he saw fit to urge on this court. I remember the warning of Blackall P. in the case of Anani v. The King (1951) 13 W.A.C.A. 196 at p. 197: “Now, it is improper for Counsel to make a charge against the police or against any other witness by way of defence, except by cross-examination as to credit, if he does not intend to call evidence in support of the charge . . . Lord Goddard, L.C.J, in the recent case of O’Neill v. Ackers, 34 C.A.R. 108, in dealing with somewhat similar conduct, expressed the hope that Counsel would refrain from making charges which, if true, form a defence but which, if there is nothing to support them, ought not to be pursued. A fortiori grounds of appeal should not contain charges which are unsupported by the evidence.” [p.296] of [1971] 1 GLR 289

This principle adverted to by Blackall P. was in a criminal case, but in my view it is a principle of general application and not confined to criminal cases. This was the reason why I did not see fit to call upon counsel for the respondent to reply to the said argument. In my view whether the case is criminal or civil or what not, whether it is of first instance or on appeal, witnesses who appear or who have appeared before our courts are entitled to the full protection of the courts. It is not open to counsel and it is an improper conduct for counsel to attack the character and integrity of witnesses or to suggest that they have committed crimes when they have led no evidence whatsoever in proof of such allegations. If such practices are not discouraged, then having regard to the privilege which counsel enjoy in court as advocates, witnesses will be at a disadvantage and will justifiably feel reluctant to give evidence in court and this will subvert the efficient administration of justice.

In the course of the argument I asked counsel on both sides to look up the provisions of article 18 of the Constitution, 1969, as well as the case of Comptroller of Customs and Excise v. Akam (1955) 1 W.A.L.R. 51 and address me as well on their significance if they considered them relevant. I am not sure I have had the assistance from counsel which in my view the importance of this case called for. Be that as it may I must confess that I have had considerable difficulty with the case. It has necessitated my burrowing unaided through the tangled interstices of many cases as well as Acts of the British Parliament in search of the principle applicable to the interpretation of section 203 of Cap. 167. That section if the reports are any guide has been interpreted apparently a few times by the British courts. In the De Keyser case (supra) Lord Hewart C.J., Humphreys and Singleton JJ. were unanimous in giving it an interpretation of which I am inclined to disapprove. In this connection I recall that Sir George Jessel M.R. declared in In re Bethlem Hospital (1875) L.R. 19 Eq. 457 that he would not consider himself bound by a statutory interpretation of which he disapproved unless the authorities were numerous. I would not adopt that qualification but having regard to the principles operating in Ghana, unless I am compelled by the doctrine of judicial precedent, I do not intend to use as a precedent a statutory interpretation of which I disapprove.

I have already indicated the nature of the problem. The appellant on the finding of the district magistrate has been completely exonerated of any complicity in a customs offence and the respondents are not challenging this in this appeal; they maintain, however, that even if he is innocent by virtue of section 203 of the Customs Ordinance his vehicle is forfeited and the court must order condemnation having regard to section 232. It becomes necessary therefore to examine the language of section 203 of Cap. 167 to see whether it achieved the alleged forfeiture. The section has the following as a side note: “General provisions as to forfeiture.” And although this is admittedly not a part of the enactment it is significant that the provision is as a matter of fact if not of law a convenient general provision indeed. The section reads:

[p.297] of [1971] 1 GLR 289

“203. Save as provided in section 170 and subject to the provisions of section 169, all aircraft, ships and carriages, together with all animals and things made use of in the importation, attempted importation, landing, removal, conveyance, exportation or attempted exportation, of any uncustomed, prohibited or restricted goods, or any goods liable to forfeiture under the customs laws shall be forfeited; and all aircraft, ships, carriages and goods together with all animals and things liable to forfeiture, and all persons liable to be detained for any offence under the customs laws or under any written law whereby officers are authorised to make seizures or detentions, shall or may be seized or detained in any place, either upon land or water, by any person duly employed for the prevention of smuggling, or by any person having authority from the Comptroller to seize or detain the same, and all aircraft, ships, carriages and goods, together with all animals and things so seized, shall forthwith be delivered into the care of the Comptroller; and the forfeiture of any aircraft, ship, carriage, animal or thing shall be deemed to include the tackle, apparel and furniture thereof, and the forfeiture of any goods shall be deemed to include the package in which the same are found and all the contents thereof.”

This provision has had judicial interpretation of a sort; however, before examining the English and local case law on the matter it seems to me that I must approach the task of interpreting section 203 of Cap. 167 with all due respect to the previous English and local interpretation guided by a view of the common-place meaning of words which is often lost sight of but which Sir Carleton Allen in his memorable work Law in the Making (7th ed.) expressed so succinctly. He said at p. 490: “Words are meaningless in isolation, and their context must always be taken into account.” Take the word “stole.” In isolation that word could easily be associated with the criminal act of dishonestly depriving some one of his property but in a context that meaning may very well be far-fetched. Consider it in the following sentence: “ When I saw her beautiful face she stole my heart and I fell in love.” And the initial association with dishonesty disappears! Furthermore “stole” standing by itself must be meaningless indeed if associated with the crime of stealing since it leaves unanswered so many questions: Who stole? What was stolen? From whom or where was it stolen? It follows that “stole” even in the criminal sense cannot have a meaning devoid of the thief or the property. Considerations like this must have operated on the mind of Roxburgh J. when in In re Dark; Glover v. Dark [1954] Ch. 291 at p. 293 he observed, “The question which I have to determine is interesting, if only as an example to show how dangerous it is to think that words in an Act of Parliament necessarily mean what they say.”

Now to the previous statutory interpretation. The first relevant case I discovered is Attorney-General v. Schiers (1835) 150 E.R. 124. That case was decided on an interpretation of a somewhat analogous enactment on an Act for the Prevention of Smuggling, 1833 (3 &4 Will. 4, c. 53), [p.298] of [1971] 1 GLR 289 section 2 which enacted inter alia that:

“[I]f any [foreign] Vessel . . . or any Boat, . . . shall be found or discovered to have been within One Hundred Leagues of the Coast of the United Kingdom; . . . any such Vessel or Boat so found or discovered, having on board or in any Manner attached thereto, or having had on board, or in any Manner attached thereto, or conveying or having conveyed in any Manner, and Spirits not being in a Cask or Package containing Forty Gallons at the least . . . then and in every such Case the said Spirits, . . . together with the Casks or Packages containing the same, . . . and also the Vessel or Boat shall, be forfeited.”

The facts in the case were that customs officers on patrol boarded boat A. which was lying about half a mile from the English shore and found in the boat three French and two English sailors, without provisions or compass, and 71 casks of foreign spirits. They captured the boat but before they got to the shore and about 30 minutes after the capture they saw another boat B. lying becalmed about a distance of three quarters of a mile from them, and about half a mile from the shore. One of the officers boarded this boat and found marks of casks in the hold and a strong smell of spirits. The clothes of the boat’s crew and other indications left no doubt that A. had taken contraband spirits from B. There were of course no contraband spirits actually found on B. At the trial counsel for the defendant contended that to support the forfeiture of B. it must be shown that she actually had the contraband spirits on board before she came to within one league of the English shore. Counsel was reported to have said at p. 125:

“It is not sufficient to subject the vessel to forfeiture, that she has unshipped the goods at a greater distance, and afterwards come, as an innocent vessel, within the prohibited limits: otherwise it will follow that if a vessel, having had contraband goods on board in the East Indies, comes at any time afterwards within the prohibited distance; or if, having put off from a French port with them on board, she has repented, and sent them back, but proceeds herself, she will be forfeited.”

To which Lord Abinger C.B. retorted at p. 125 (my emphasis); “You put an extreme case one way, let us put one the other: suppose she unships them a hundred yards beyond the league? I apprehend the object of the statute was to make the vessel seizable if found within a league, having had the prohibited goods on board in that voyage. The being found within a league is taken as evidence of the guilty intention to land them.”

In a reserved judgment supporting the forfeiture, the Lord Chief Baron said, inter alia, at p. 125 (my emphasis):

“There is no foundation for the distinction taken by Mr. Jervis. The provision which renders a vessel liable to forfeiture, having had contraband goods on board before entering the prohibited limits, [p.299] of [1971] 1 GLR 289 is applicable only to the particular voyage in which she both discharges the goods and enters the prohibited limits. It cannot be supposed that the legislature contemplated anything so absurd as to provide against the case of a vessel having had prohibited goods on board somewhere or other twenty years before, and then coming, twenty years afterwards, within a league of the coast. The statute seems indeed to be directed against the very case of a vessel, having had goods on board in prohibited packages, discharging them before she enters the specified limits, and then following, to assist in the landing or receive back the crew.” It is noteworthy that the statute as framed embraces if it is looked at literally the two hard or extreme examples given by Mr. Jervis as well as the example given by the Lord Chief Baron. Yet by his judgment Lord Abinger C.B. characterised the Jervis examples as absurd which indeed they are and held in effect that these examples were outside the purview of the enactment. The provision of the statute was held “applicable only to the particular voyage” despite the clear words of the enactment containing no such limitation. The whole reasoning of Lord Abinger C.B. in that case was quoted with approval and followed in Attorney-General v. Hunter [1949] 1 All E. R. 1006, a case practically on all fours with that case, and in which the English provision similar to section 203 of our Cap. 167 fell for construction as to whether the vessel in that case was subject to forfeiture. Morris J. (as he then was) referred to the said English provision, namely, section 202 of the Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36), and after referring to and adopting the reasoning of Lord Abinger C.B. in the Schiers case (supra) said at p. 1012: “In my judgment, the provisions of ss. 179 and 202 are applicable to the facts of the present case. Under s. 202 it seems to me plain that the Taku was made use of in the importation and landing of uncustomed, prohibited or restricted goods.” The important thing to note about the Schiers case (supra) which was followed in the Hunter case (supra) is that a case clearly failing within the section was excluded because the court held that it was absurd to include it and introduced a qualification to the plain language of the section and the reason for so doing was that “it cannot be supposed that the legislature contemplated” it. It would seem clear therefore that in order to interpret these provisions of the customs laws as indeed any other statute it is not amiss to advert to what the legislature had in contemplation. The acceptance and application of the reasoning in the Schiers case to the similar facts in the Hunter case would seem to indicate that as recently as 1949 the King’s Bench Division accepted a qualification to the apparently all-embracing provision of section 202 of their Act which is in essence section 203 of our Cap. 167

It is also noteworthy that in the two cases discussed above the ships which were condemned were under the control of the proper persons and these persons were implicated in the customs offences that led to the forfeiture proceedings. With this background it is illuminating to examine the case of De Keyser v. British Railway Traffic and Electric Co., Ltd. [1936]

[p.300] of [1971] 1 GLR 289

1 K.B. 224. It is clearly distinguishable from the case under consideration in this appeal and the district magistrate appreciated this fact and said so but he did not draw attention to the dissimilarity. In that case the British Railway and Traffic Electric Co., Ltd. who were the respondents, entered into a hire-purchase agreement with one Joseph Harris and under the agreement they delivered into his possession a certain tank wagon. At all material times the respondents retained the ownership of the said wagon. Customs officers in the course of their duty seized the said wagon while it was being used by one Bertie Dunbleton, an employee of Joseph Harris, in the conveyance of goods liable to forfeiture under the customs laws and claimed forfeiture before the justices exercising summary jurisdiction. It was held, and the evidence warranted it, that the owners were unaware of the wrongful use of which the lorry was being employed and therefore an order of forfeiture was refused by virtue of section 226 of the English Customs Consolidation Act, 1876 (supra), (the section being similar to section 232 of Cap. 167), since there was a discretion to order or to refuse to order condemnation. Section 232 of Cap. 167 reads as follows: “When any writ of summons has been issued for the forfeiture of any articles seized under the customs laws, a court may proceed to the examination of the matter, and on proof that the articles are liable to forfeiture under the customs laws may condemn the same.”

The justices obviously held that the second “may” occurring in the section gave them a discretion to refuse to order condemnation. Israel de Keyser, an officer of the Customs and Excise, who had pursued the claim on behalf of the Commissioner of Customs and Excise, appealed to the King’s Bench Division on behalf of the commissioner and that court allowed the appeal and remitted the case to the justices with a direction to condemn the said wagon. The appeal came before Lord Hewart C.J., Humphreys and Singleton JJ. (as they then were). The Attorney-General, Sir Thomas Inskip, appeared for the Commissioner of Customs and Excise and the defendants were represented by Mr. van den Berg K.C. The argument of the Attorney-General which completely overwhelmed the court and found favour with all three judges was simplicity itself. He submitted that section 202 of the Act (our section 203) used the imperative words “shall be forfeited” and therefore if the facts were proved then the vehicle ipso facto must be forfeited and no question of hardship on the owner was relevant: See Lord Advocate v. Crookshanks (1888) 15 R. 995. Since the vehicle was already forfeited by operation of law, i.e. in proceedings under section 226 (our section 232) then the second “may” in the said section 226 was imperative, not permissive and the justices had no discretion; they had to condemn. Mr. van den Berg K.C. pointed out the hardship—I almost said the absurdity—in the contention. He is reported to have said pp. 227-228:

“The Customs Consolidation Act, 1876, is a penal statute and must he construed strictly against the Crown. If the argument for the appellant is correct, a vehicle might be stolen, used for the conveyance [p.301] of [1971] 1 GLR 289 of uncustomed goods, and, therefore, be forfeited, although the owner was quite innocent. In the present case the innocent owners of a vehicle have been deprived of their property through no fault of their own. In such circumstances it is reasonable that the justices should have a discretion, and they have such a discretion on the right interpretation of s. 226. True that s. 202 declares that certain property ‘shall be forfeited,’ but s. 207 then opens up the possibility of proceedings to decide whether the forfeited property should be condemned . . . therefore the permissive words ‘may condemn’ are used in s. 226 in deliberate preference to the compulsory

‘shall condemn.’ . . . The question whether the justices have a discretion was not raised in Lord Advocate v. Crookshanks . . .”

The argument as to hardship was brushed aside by all the judges. Lord Hewart C.J. said at p. 230: “It seems to me that on a true construction of this statute, where certain events have happened—and in the present case there is no dispute that those events have happened—the property in question is labelled ‘forfeited’ under s. 202. There may be, where the owner of the property or other persons authorized by him gives notice of a claim, an inchoate forfeiture which is to be completed by the combined forfeiture and condemnation contemplated by s. 226. What is it that is open to the claimant on such proceedings? In my opinion, nothing more is open to him than to contend, and, if need be, to offer evidence to prove, that, on a true view of the facts, the conveyance in question does not come within the class of things which, by s. 202, are forfeited. He may contend with success, for instance, that through error or otherwise a conveyance not liable to be forfeited has been seized. He may say in whatever form is suitable to the relevant facts that the conveyance does not come within the class of things forfeited. But once it is established that the conveyance does come within that class, this undoubtedly rigorous statute gives the claimant no opportunity of asking the Court to take into consideration mitigating circumstances with the effect of removing the conveyance from that class. There is no opportunity for mercy with regard to a conveyance which has been forfeited, although there may be grounds for contending that the conveyance does not come within the class of forfeited property.

In the present case no such contention was advanced. All that was argued on behalf of the respondents was that they did not know of the wrongful use for which the lorry was being employed. That circumstance was wholly irrelevant to the proceedings before the justices. It did not affect the purpose for which the lorry had been used. If that sort of argument were to be open to the owner of a conveyance in such a case as the present, the result might be, in the case of two partners, where one was aware of the wrongful use to which the vehicle was being put and the other was not, that the vehicle might be excused from condemnation because of the innocent mind

[p.302] of [1971] 1 GLR 289 of one of the partners, that result enuring for the benefit of the guilty partner. In the present case the argument adduced before the justices, which was really an argument in mercy, that the owner of the vehicle was not aware of the illegal use to which it was being put, was wholly irrelevant to the only question which the justices had to consider.”

Humphreys J. was of the same opinion. He said at p. 232:

“Sect. 202 is free from ambiguity. It is perfectly clear and direct in its terms. It provides that (inter alia) all conveyances used in various illegal ways, including the conveyance of goods liable to forfeiture, shall be forfeited. On the plain terms of that section, as soon as it is ascertained that a conveyance has been used in the conveyance of goods liable to forfeiture, ipso facto that conveyance is forfeited. It would be remarkable if one found in subsequent sections something which cut down that plain statement of the result of certain facts, and I do not find anything of the sort. Sect. 207 does nothing to alter, the position. All it does is to provide that the owner of the conveyance, who may be a completely innocent person, and completely unaware of the facts of the case, may give notice that he claims the property seized, whereupon proceedings shall be taken for the forfeiture and condemnation of the property before, among other tribunals, a justice of the peace. What is the question which the justice has to decide? As the statute clearly says, it is whether the property is liable to forfeiture. That is the only question which the justice is called on to decide. A good deal has been said in this case about the hardship which might result in the case of some valuable vehicle being forfeited because some person happened to be in it who had in his possession goods liable to forfeiture. The answer to that contention is to refer to s. 209, by which the most ample provision was made for the remission by the Commissioners themselves of the forfeiture which has already been decreed. That section has been slightly altered in its terms by s. 35 of the Inland Revenue Regulation Act, 1890, which section must now be read into the Act of 1876 in substitution for s. 209 (Excise Transfer Order, 1909 (St. R. & O., 1909, No. 197), para. 24). But s. 209 was part of the Act of 1876 as it was originally passed, and one must assume that the Commissioners will act reasonably and without undue hardship if an application is made to them to remit the forfeiture which the law has imposed on some vehicle.”

Obviously in the view of Humphreys J. the remedy of an innocent, law-abiding citizen in no way implicated in a customs offence and whose vehicle has been used in conveying uncustomed goods will depend on the goodwill of the Commissioner of Customs and Excise and the fond hope that he will not act unreasonably. Section 209 of the English Act referred to is similar to our section 206 and indeed in brushing aside the question of hardship Singleton J. at p. 234 attempted to show how inflexible section 202 is:

[p.303] of [1971] 1 GLR 289

“It is found as a fact that the tank wagon with which we are concerned was used for the conveyance of goods liable to forfeiture under the Customs Acts and consequently s. 202 applied to it. Sect. 226 refers to proceedings before justices. The first ‘may’ in that section clearly means ‘shall’ or ‘must’, but it has been argued by Mr. van den Berg that the second ‘may’ has a different meaning and leaves it in the discretion of the justice whether or not he shall make an order or not, and that he need not do so, although the property in question in the particular case comes within s. 202, if, for example, he thinks that any hardship will result. Clearly question of hardship might arise if the user of the vehicle was without the knowledge of the owner, but it is to be observed that in Lord Advocate v. Crookshanks it was decided by the Court of Session that knowledge on the part of the owner of the vehicle is irrelevant in such a proceeding as this and that the more use of the vehicle for the unlawful purpose indicated by s. 202 of the Act of 1876 infers a statutory forfeiture of the vehicle irrespective of the knowledge or consent of the owner thereof. In that case it was pointed out in more than one judgment that the question of hardship did not enter into the matter at all and that the Legislature had provided that a public body would see that no hardship was really done in any case. Unless the justice is bound, on proof of the facts specified in s. 202, to make an order condemning the vehicle, the absurd position would arise of a vehicle forfeited under s. 202, but not condemned even though condemnation is asked for, under s. 226.”

One significant thing that emerges from a consideration of the reasoning of the judges and the language they used is that even if the wagon were stolen by a wrong-doer and used to convey uncustomed goods, the wagon must nevertheless be condemned. The section is now so absolute in its prohibition that the view of Lord Abinger C.B. in the Schiers case (supra) adopted in so wholesale a manner as recently as 1949, must be considered erroneous. The decision itself in the De Keyser case may not be wrong but in my view the reasoning with the language in so far as it brushed aside and left unexplained the example given by Mr. van den Berg, must be considered unsatisfactory and in conflict with the earlier view of Lord Abinger C.B. and consequently with the later view of Morris J. (as he then was) in the Hunter case (supra).

Now certain features of the De Keyser case deserve consideration. The wagon was in the hands of an assignee or agent of the owner. In any event it was in the hands of the employer of the wrong-doer by virtue of a contract. It is not unreasonable to imply in the contract, in accordance with the principles of the common law, a condition that the employer or his servants or agents or assigns will not use the vehicle in a manner contrary to the laws of the country and a further condition that if the hirer or his agents or servants were to so use the vehicle and the owner suffers a loss the hirer will indemnify him against the loss. In such a case if a person, not an owner, is lawfully in possession of a wagon and he uses it contrary to

[p.304] of [1971] 1 GLR 289 the customs laws without the owner’s knowledge then forfeiture can hardly be said to be harsh because the owner must be presumed to know the law and he could fall on the person to whom he had given it. It must be a Person he had seen fit to enter into a contractual obligation with and therefore a person whose capability to reimburse him he has had an opportunity to assess. This position significantly is absent in the case of a thief who may be a man of straw. Furthermore, English law is not unacquainted with the doctrine of vicarious responsibility for the wrongful acts of other. The possession of the employer can by this fiction be equated with that of the owners and the use in the case being contrary to the customs laws the question of hardship can hardly affect the forfeiture. The owners are not without a legal remedy. This should have been the answer of the court to Mr. van der Berg instead of their brushing the argument aside and suggesting that the section was so wide in its scope and so unlimited in its application as to effect forfeiture in the instance given by Mr. van den Berg when such a view of the statute is clearly not necessary for the decision. There shall emerge later on in this judgment other reasons why the example given by Mr. van den Berg in this case as well as the earlier examples given by Mr. Jervis in the Schiers case (supra) must be outside the scope of the customs laws.

Much of the argument in the De Keyser case (supra) centred on the interpretation of “may condemn” as it appeared in section 226 (our section 232) of the English Act (supra) a point which was to feature and be the ratio in the decision of Windsor-Aubrey J. in the case of Comptroller of Customs and Excise v. Akam (1955) 1 W.A.L.R. 51. The facts of that case are important because in my opinion the view of Windsor-Aubrey J. that the vehicle in the case was, on the authority of the De Keyser case, liable to forfeiture does not seem to be borne out by a close study of the facts. The facts were that the Comptroller of Customs and Excise brought an action against four defendants for the attempted evasion of import duty on a large quantity of cigarettes that were smuggled into the country by the second defendant. The first defendant was a customs’ officer and he had apparently agreed not to seize the smuggled goods. Judgment was given against only the first and second defendants under section 197 (e) of Cap. 167. The third and fourth defendants had judgment in their favour.

The said fourth defendant was driving when the smuggled goods and the said vehicle were seized. The lorry was the subject of a hire-purchase agreement between the owners Staveley & Co., Ltd. and one Nwigwe, the employer of the fourth defendant. Neither Staveley & Co., Ltd. nor Nwigwe were concerned in the action nor was there any suggestion that they had any knowledge of the use to which the vehicle was put. By the judgment of the magistrate the fourth defendant was also exonerated of any complicity. In view of these facts, namely, the innocence of Staveley & Co., Ltd., Nwigwe and the fourth defendant, the magistrate held that it would be inequitable to order forfeiture and he refused to so order relying presumably on what he conceived to be the discretion granted him under section 232 of Cap. 167 by the legislative use of the words “may condemn.”

[p.305] of [1971] 1 GLR 289

Windsor-Aubrey J. in an appraisal of the facts and in a view remarkable for its brevity, having regard to its implication, felt that the facts were covered by the De Keyser case and he decided that the magistrate was wrong. The relevant ruling of Windsor-Aubrey J. is found at pp. 53-54:

“These applications have entailed much research on my part to determine whether in the circumstances of this case the magistrate’s order was wrong and, secondly, whether certiorari or mandamus lies at all. I propose in the first case to consider the correctness or otherwise of the magistrate’s decision, and I have been fortunate enough to find an English case directly in point. The lorry in question was the property of Staveley & Co. Ltd., and was hired by them to one Nicolas Nwigwe, the employer of the fourth defendant, under a hire-purchase agreement dated March 11, 1955. The magistrate acquitted the fourth defendant, thereby holding he was not implicated in the Customs offence. Needless to say, the owners Staveley & Co. Ltd. and the hirer were completely ignorant and innocent of the use to which the vehicle was being put. Section 203 of the Customs Ordinance provides that any carriages (a term which covers a motor vehicle) made use of in the illegal importation of goods shall be forfeited. The magistrate, however, presumably relying on the discretion which he not unnaturally thought was conferred on him by section 232 of the said Ordinance, the marginal note of which reads ‘court may condemn articles liable to forfeiture,’ held it would be inequitable to forfeit the lorry. If the magistrate has a discretion no one can possibly say that he exercised it improperly, but the applicant says he has none. I find that our Customs Ordinance is based on the English Customs Law Consolidation Act, 1876. Section 202 of the English Act closely resembles section 203 of our Ordinance while section 226 of the said Act is somewhat similar to our section 232, and the important words ‘may condemn are common to the said sections 226 and 232.

The case which I have already mentioned, namely De Keyser v. British Railway Traffic and Electric Co. Ltd. [1936] 1 K.B. 224 is directly in point and seems to me to place the matter beyond dispute. In that case a motor tank wagon belonging to the defendants was seized by the Customs on the grounds that it had been made use of in connection with a customs offence. It was not in dispute that the defendants were completely innocent and ignorant of the knowledge that the vehicle had been illegally made use of. The defendant, relying on the words ‘may condemn’ in section 226 of the English Act, argued that the trial court had discretion, but the superior court held that reading sections 202 and 226 of the English Act together the word ‘may’ meant ‘must’ and therefore the trial court had no discretion and the vehicle must be forfeited. In the light of that decision I have no doubt the magistrate was wrong in not forfeiting the lorry.” [p.306] of [1971] 1 GLR 289

One significant difference between the Akam case (supra) and the De Keyser case (supra) is that the defendants who were implicated in the customs offence had nothing to do with the ownership, possession or custody of the vehicle. The second defendant would seem to be just a passenger, having no transaction with the owner, his agent, servant or assigns regarding the ownership, possession or custody of the car. This was not so in the De Keyser case where the driver implicated in the offence was the servant of a person lawfully in possession by virtue of a contract with the owner. With all due respect, the De Keyser case was not “directly in point” as was said in the Akam case. There is always a danger, inevitable when past precedent is applied to a new situation, to abandon thinking out the problem anew and to seek succour in a previous thinking said to apply to the new situation. This is often the case when the precedent to be applied has “entailed much research” before its discovery. The mind no doubt recoils from the inevitable effect implicit in a meticulous examination of the new situation, an examination which may reveal differences and discourage the natural inclination to pursue the line of least resistance by merely applying the new found panacea.

There is another point on which it seemed to me that the De Keyser case was misapplied in the Akam case. In the latter case it was said, inter alia, as I have already quoted, that the English court decided that the word “may” appearing for the second time in section 226 (our section 232) must be interpreted as “must.” This would seem to be a misapprehension. What Lord Hewart said at p. 231 is as follows: “That there is in the word ‘may’ when it occurs for the second time in s. 226 a limited discretion is no doubt true. The justices may not find that the facts leading to forfeiture are proved, or they may find that some error has been made, . . .” Humphreys J. also at page 231 said, “in my judgment, however, it by no means follows that when the word ‘may’ occurs for the second time in s. 226 it is imperative as distinct from permissive.” It is clear to me therefore that the view that the English court in the De Keyser case equated “must” and “may” and thus gave no discretion and for that reason the magistrate in the Akam case had no discretion is erroneous and makes the Akam case a decision of doubtful validity. That was merely a view expressed by the Attorney-General. It is amazing that the Akam case has stood unchallenged for more than fifteen years. In fact Judge Annan (as he then was), impelled no doubt by the doctrine of judicial precedent, felt bound to follow the Akam case in the case of Comptroller of Customs and Excise v. Scabah, Circuit Court, 15 May 1966, unreported, which was on appeal before him; and he ordered forfeiture which the district magistrate had refused to order on the ground no doubt that he had no discretion to refuse.

In instant case the crucial matter calling for consideration is the meaning of the first part of section 203 of

Cap. 167. The relevant part of the section, already quoted in extenso, is as follows:

[p.307] of [1971] 1 GLR 289

“Save as provided in section 170 and subject to the provisions of section 169, all aircraft, ships and carriages, together with all animals and things made use of in the importation, attempted importation, landing, removal, conveyance, exportation or attempted exportation, of any uncustomed, prohibited or restricted goods, or any goods liable to forfeiture under the customs laws shall be forfeited, . . .”

In order to arrive at the meaning of this provision, it is in my view necessary that one must have recourse to the intention of the legislature. This is a fundamental rule and it is stated in the very first sentence in Maxwell on Interpretation of Statutes (11th ed.): “A statute is the will of the legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ‘according to the intent of them that made it’.” This rule as thus formulated in Maxwell was quoted with approval by Evershed M.R. in Ernest (Prince) of Hanover v. Attorney-General [1956] Ch. 188 at p. 201, C.A. The rule needs to be properly understood as it has given rise to sharp divergences of opinion as to its precise scope and application. It seems to have originated in the celebrated resolution of the Barons of the Exchequer in Heydon’s Case (1584) 3 Co.Rep. 7a; 76 E.R.637 and in its modern form it was formulated with commendable precision in Beeke v. Smith (1836) 2 M. &W. 191 at p. 195; 150 E.R. 724 at p. 726. There, Parke B. quoting Burton J. in Warburton v. Loveland (1828) Hud. & Bro. 623 observed in the course of delivering the judgment of the Exchequer of Pleas:

“It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience but no further.”

In Becke v. Smith (supra) Parke B. so operated the rule that he came to the conclusion, after examining the intention of the legislature, that the words “within three months before the commencement of the imprisonment” in section 32 of the Insolvent Debtors Act, 1826 (7 Geo. 4, c. 57), mean “within a period commencing three months before the imprisonment” in order to accord with the true intention of the legislature. Be it noted that in this exercise after the words of the statute had been subjected to the test of legislative intention the words “of the” in the section disappeared; the word “commencement” became “commencing” and new words “a period” were added. Between “within” and “three months” were interpolated “a period” and the commencement which had changed its character to commencing shifted its place as well from after “before the” and preceded these words. The only words which did not suffer any change in position were “within” and “imprisonment.”

If the proposition had been stated baldly that there existed a principle of judicial interpretation which permitted such licence with enacted words

[p.308] of [1971] 1 GLR 289 many will probably raise their eye-brows in astonishment. No doubt Lord Denning L.J. (as he then was) had this in mind when in Magor and St. Mellons R.D.C. v. Newport Corporation [1950] 2 All E.R. 1226, at p. 1236, C.A. he said in a dissenting judgment: “We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” Now this statement of Denning L.J. (as he then was) was disapproved in very scathing language when the case went on appeal to the House of Lords. Lord Simonds exclaimed indignantly while affirming the decision of the Court of Appeal in [19521 A.C. 189 at p. 191, H.L.:

“[T]he general proposition that it is the duty of the court to find out the intention of Parliament … cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited . . .

The second part of the passage . . . is no doubt the logical sequel of the first. The court, having discovered the intention of Parliament . . . must proceed to fill in the gaps. What the legislature has not written, the court must write. The proposition, . . . cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation.”

I think it is clear from a consideration of the principles governing the interpretation of English statutes that the courts do indeed modify the language of statutes in certain circumstances, as Parke B. did in Becke v. Smith (supra), and to assert the contrary as Lord Simonds would seem to have asserted in the Magor and St. Mellons R. D. C. v. Newport Corporation case (supra) is to run counter to a thousand instances: See Attorney-General v. Lockwood (1842) 9 M. & W. 398 per Alderson B.; Miller v. Salomons (1853) 7 Ex. 475; Jubb v. Hull Dock Co. (1846) 9 Q.B. 443, per Lord Denman; Wigton v. Snaith (1851) 16 Q.B. 503, per Lord Campbell; Ex parte Rashleigh (1875) 2 Ch.D. 9, per James L.J.; Norman v. Norman [19501 1 All E.R. 1082, per Hodson and Pearce JJ.; and Salmon v. Duncombe (1886) 11 App.Cas. 627. Lord Alverstone C.J. put the principle in very precise and concise language in R. v. Vasey [1905] 2 K.B. 748 at p. 751 (my emphasis): “ [T]he manifest intention of a statute must not be defeated by too literal an adhesion to its precise language.” And in Sutherland Publishing Co. v. Caxton Publishing Co. [1938] 1 Ch. 174, C.A., MacKinnon L.J. threw away all pretence and subtle expressions and put it in unequivocal language in a dissenting judgment at p. 201:

“When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the Legislature. It may even be necessary, and therefore legitimate, to substitute for an inept word or words that which such intention requires.”

[p.309] of [1971] 1 GLR 289

Now why is it that Lord Simonds seemed to have criticised this concept so vehemently? In fact in the recent case of Kwadu v. The Republic [1971] 1 G.L.R. 272, I also took a position not unlike the Lord Simonds’ approach and I relied on his dicta above. The answer to this lies in the concept of legislative intention. The principle formulated by Parke B. in Becke v. Smith (supra) postulates a position where the intention of Parliament can indeed be discovered by studying the words of the statute and gathering the said intention either from the very words or by their necessary implication. Unless this is properly appreciated, all talk of legislative intention will only lead to difficulties and divergent opinion. Lord Watson, a great law lord threw light on this problem in the case of Salomon and Co., Ltd. v. Salomon [1897] A.C. 22 at p. 38, H.L., when he said:

“ ’Intention of the Legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or Equity, what the Legislature intended to be done or not to be done can only he legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.” Herein, therefore, lies the secret and in Kwadu v. The Republic (supra), my quarrel was with the spelling out of a legislative intention speculatively in the teeth of the language of the statute. I took the view in that case that in Fulani v. The State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67, the judge who by his interpretation of the criminal legislation of 1960 had effected an abridgment of the jurisdiction of the circuit court and the High Court was engaged in considering the policy of the enactment, rather than the intent of Parliament as gathered from the enactment. And I recall in this respect the warning of Lord Sterndale M. R. in Scranton’s Trustee v. Pearse [1922] 2 Ch. 87 at pp. 123-124,

C.A.:

“I am bound to say I think that it is an extraordinarily dangerous and mischievous doctrine to hold that a Court, in considering whether it can give effect to an Act of Parliament or not, is to examine the Act and see whether it considers it is the kind of legislation which is consistent with the general policy of the realm. Such an attitude . . . is one which might lead to extraordinary results. In my opinion all this Court can do is to say: Is that what is enacted by the statute? and, if it is, it must give effect to it; . . . Apparently one can alter the words of a statute but this is a serious matter and it must be for only very cogent and limited reasons indeed. As Bramwell B. said in Fredericks v. Payne (1862) 1 H. & C. 584 at p. 589 (my emphasis): “The introduction of words into an act of Parliament is open to serious objections, and should only be resorted to for the most cogent reasons, so as to avoid a repugnancy of construction, or something which is opposed to good sense.” Brett M.R. also adverted to this principle when [p.310] of [1971] 1 GLR 289 he said in R. v. Tonbridge Overseers (1884) 13 Q.B.D. 339 at p. 342, C.A. (my emphasis): “If an enactment is such that by reading it in its ordinary sense you produce a palpable injustice, whereas by reading it in a sense which it can bear, although not exactly its ordinary sense, it will produce no injustice, then I admit one must always assume that the legislature intended that it should be so read as to produce no injustice.”

I have now canvassed what I conceive to be the true principle applicable to a construction of section 203 of Cap. 167. I now proceed to interpret the provision of the said section in accordance with these principles, well aware of the proposition that where words are clear and unambiguous no question of interpretation at all arises. In this case the words “made use of” appearing in the section seem ambiguous. As I have already pointed out words take their meaning from their context and in isolation they are meaningless. In the context the question of what is made use of is adequately answered and having regard to the facts here it is the vehicle GL 2818. The further question who “made use of” the vehicle cannot be answered by the context, hence the ambiguity and in my view it becomes necessary to examine the language of the whole of the Ordinance to find out whether that question can be answered. Surely vehicles do not use themselves and so from at least a practical common sense angle one would expect a class of owners and human beings as contemplated by the Ordinance. Furthermore, since in this case we are dealing with a vehicle and the context is concerned, as the facts show, with conveyance what status must one look for? The driver or the passenger, can each or both make use of the vehicle for conveyance. Now if I drive my car to convey a box from Accra to Kumasi I am surely making use of the car to convey the box and my act of making use of the car is obvious. I am doing something: I am driving. Suppose the box belongs to Mr. Jones and I give Mr. Jones a lift to Kumasi as well. In such a case who is making use of the car to convey the box to Kumasi? Mr. Jones or I? In my view it is an abuse of language and a bizarre use of the words “make use of” for anyone to suggest that Mr. Jones and I are making use of the car, to convey his box when all he is doing is sitting down cozily and passively doing nothing and consequently making use of nothing, to convey anything; whereas, I actually undertake the physical exercise of driving and thus make use of the vehicle to convey Mr. Jones and his box. He may be making use of the vehicle by sitting in it but he is himself certainly not making use of it in conveying anything. “To make use of.” Is it a passive or active concept? I think it is an inelegant use of language to consider Mr. Jones who is merely a passenger as making use of the vehicle to convey his box and presumably himself. The most logical view is that Mr. Jones has caused the vehicle to be made use of by me to convey him and his box. However that point is not all that important and it may very well be a case of making a mountain out of a mole hill. Nevertheless it illustrates the danger of taking words at their apparent face value without considering their context.

[p.311] of [1971] 1 GLR 289

The crucial question to consider and answer is: Did the legislature contemplate any class of persons who “make use of” the vehicle in the circumstances set down in section 203 of Cap. 167 as the persons whose acts should occasion a forfeiture or was a forfeiture to operate irrespective of who made use of the vehicle? In this connection, as a matter of common sense, it is worthwhile to note that if forfeiture as a penalty is meant as a punishment, and I cannot conceive it as other than a punishment, then it will in the nature of things only operate to affect a person or entity who is an owner or who has a proprietary or possessory interest for however short a duration that interest may be. It can surely not affect any one who has no interest whatsoever in the property. It is equally obvious that the legislature must have intended by section 203 to penalise some human or institutional agency and not merely the mechanical means used in effecting a conveyance for example.

To discover the legislative intention one must examine the whole of Cap. 167. An examination of sections 61, 62, 64, 66, 166, 167, 168, 170, 171, 182, 183, 184, 185, 186, 191, 192, 194, 195, 196, 197, 198, 201, 202, 204, 214, 215, 218, 230, 239, and 241 shows adequately and in my view very clearly that the Customs Ordinance is directed at. discouraging the evader of the customs laws and all those concerned with or aiding in its evasion or contravention and no one else. Furthermore the forfeiture of goods under the customs laws is directed at the owner of the goods and his servants and agents who were concerned in evading the customs laws. In the case of a means of conveyance like ships, planes, lorries and other sorts of vehicles, it is directed at the master or owner of the ship or his servants or the pilot or owner or any responsible officer of such aircraft or ship in cases where these persons are implicated either actually or by negligence and in the case of vehicles or animals the owner, his servant or agent and all persons having a possessory or proprietary interest and in turn the servants’ agents and of course their assignees and in all the cases of forfeiture of the means of conveyance, etc. the law is directed against the persons aforesaid who make use of the means of conveyance negligently or knowingly against the customs laws. This conclusion is in fact inevitable even when section 203 is considered by itself. Section 203, be it noted, is made subject to sections 169 and 170 and all that sections 169 and 170 do is exclude from the general provision of section 203 aircraft and ships of or exceeding 250 tons burden and make special provision for the penalty in such cases. It tried to avoid forfeiture when the aircraft or vessel was big and proceeded to substitute some other penalty. A study of the penalty must be revealing as it must show those that the legislature had in mind to be affected by this penal legislation. Now it must be kept in mind that when section 203 provides for forfeiture of aircraft and ships only aircraft and ships of less than 250 tons burden are meant. Let us assume for the purpose of argument that the ratio in the De Keyser case is right and that the provision of section 203 is so wide that the innocence of an owner, his agents and servants is irrelevant to the question of forfeiture. Take the case of two ships, one called A. is 249.50 tons and

[p.312] of [1971] 1 GLR 289 the other B. is 250 tons. In both of these cases a man offers himself as a passenger and unknown to the master, mates, engineer, purser, chief steward or anyone else in the crew, the man has in his possession a portmanteau with a concealed contraption and although his portmanteau was searched when he boarded the ship, yet by means of all the reasonable search the concealed contraption containing contraband diamonds valued at N¢250.00 was not discovered. If the ratio in the De Keyser case is right then because the man with the contraband diamonds was conveyed to his destination, the ship has been made use of in the conveyance of contraband goods and in accordance with section 203 ship A. must be forfeited. How does the legislature deal with ship B. in the same section 203? It must be noted that section 203 refers to section 170. Now in the case of ship B. the legislature provides in the said section 170 (1) of Cap. 167 as follows:

“170. (1) With regard to aircraft, or any ship of or exceeding two hundred and fifty tons burden, on board or in respect of which any offence against section 168 shall be committed, such aircraft or ship shall not be forfeited for such offence, but the following provisions shall apply—

(a) the Comptroller shall have power, subject to appeal to the Governor, to fine any such aircraft or ship in any sum not exceeding fifty pounds in any case where in his opinion a responsible officer (as hereinafter defined) of such aircraft or ship is implicated either actually or by neglect . . .

(2) In this section—

‘responsible officer’ shall include the master, mates and engineers of any ship, and in the case of a ship carrying a passenger certificate the purser or chief steward, and where the ship is manned by Asiatic seamen, the serang or other leading Asiatic officer, and in the case of an aircraft the pilot, navigator, chief steward or chief engineer;

‘neglect’ shall include cases where goods unowned by any of the crew are discovered in a place or places in which they could not reasonably have been put or remained if the responsible officer or officers having supervision of such place or places had exercised proper care at the time of the loading of the aircraft or ship or subsequently.”

What is the resultant legal position if the De Keyser and Akam cases are right? For a difference of half a ton burden the legislature has enacted in the same section that in the case of ship A. there must be forfeiture whether the owners of the ship and those in control knew of the contraband goods or not, but in the case of ship B. nothing whatsoever should happen because, even the fine of £G50 is to be paid only if it can be established that the responsible officers are actually implicated or negligent and of course in ship A. as in ship B. they are not. And yet the facts are the same. In my opinion this is so absurd that in accordance with the principles of

[p.313] of [1971] 1 GLR 289 interpretation which I have adverted to in this judgment, that result ought to be avoided. It can only be avoided if the section is interpreted so as to reconcile the two identical situations and avoid the resultant, blatant absurdity and give effect to the legislative intention apparently spelled out in section 170. It is clear in the case of ship B. that the language of the legislature gathered from section 170 shows that ship B. can only suffer a fine of £G50 if its responsible officers are implicated, therefore by the same parity of reasoning ship A. also ought to suffer forfeiture only if its responsible officers are implicated. It cannot be that in the same section 203 the legislature can exhibit such a split personality and be a veritable Dr. Jekyll and Mr. Hyde.

Let us examine some of the further absurd results amounting no doubt to legislative injustice which will result if the unbridled meaning so needlessly accorded to section 203 by Lord Hewart C.J., Singleton and Humphreys JJ. in the De Keyser case (supra) is to be sustained: Mr. Jones, a respectable law-abiding citizen, buys a Mercedes Benz car for N¢10,000. 00. It arrives in the harbour and he goes himself to take delivery. Unknown to him a clever rogue has deposited smuggled diamonds under the seats intending to take the diamonds later without the knowledge of Mr. Jones when the car leaves the harbour area. If Mr. Jones is stopped while driving the car from the harbour and the customs officials discover these smuggled diamonds Mr. Jones must nevertheless suffer a forfeiture of his car even if the rogue is apprehended and fined. If a thief were to steal Mr. Jones’ car use it in conveying smuggled goods, was caught, tried and jailed even then Mr. Jones would suffer a forfeiture of his car. If the police were chasing a man who had smuggled goods in his possession and Mr. Jones were to see the chase and offer to help the police and to succeed in arresting the thief, then if he put the smuggled goods in his car and drove with the smuggled goods to the police station the legislature of his country has this provision for his valour and public spiritedness. It forfeits his car! Mr. Jones will therefore lose N¢10,000.00 and if the price of the smuggled goods is N¢10.00 then the smuggler will only lose N¢40.00 for he only forfeits the goods and pays a penalty of three times the value. So outrageous, scandalous, absurd and unjust a result can hardly be attributed to any legislature committed to good government. Unless the legislature uses clear expressions showing an intention to achieve these queer and incredible results I will not hesitate to alter, I nearly said to mutilate, if need be the language of the enactment if it tends to express so revolting a proposition in order to avoid the result because in my view since the main object of the legislature is clear this result can only be attributed to ignorant draftsmanship. As Lord Hobhouse, delivering the opinion of the Privy Council, in the case of Salmon v. Duncombe (1886) 11 App.Cas. 627 at p. 634 put it: “It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman’s unskilfulness or ignorance of law.”

[p.314] of [1971] 1 GLR 289

In a situation like this 1 think the proper thing to do is what Parke B. did in Becke v. Smith (supra) and with all due respect to the view of Lord Simonds in the Magor and St. Mellons R.D.C v. Newport Corporation case (supra) “what the legislature has not written” 1 am afraid “the court must write.” And as Denning L.J. (as he then was) said in the same case in the Court of Appeal, the court must find out the intention of Parliament and carry out the intention by filling in the gaps and 1 may add neutralise the absurdity by making sense of the enactment. This is the rule expressed in Maxwell on Interpretation of Statutes (11th ed.) at p. 221;

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.”

In my view therefore if it is shown that an owner of a vehicle or his servant, agent or lawful assignee is in no way implicated in a case where the vehicle was made use of in the conveyance of contraband goods by someone who is a stranger to them and the vehicle, then the vehicle is not caught by the penalty provision of section 203 of Cap. 167. This is equally so if the said owner or his agent, servant or assignee made use of the vehicle in the conveyance of contraband goods not knowing that the goods were contraband because in such a case they will not be implicated in the customs offence. It is obvious therefore that I do not share the same view with Lord Hewart C.J., Humphreys and Singleton JJ. and Windsor-Aubrey J. as to the interpretation of section 203 of the Customs Ordinance. I have not found it easy to disagree with such respectable authority and 1 find consolation in the attitude adopted by Lord Buckmaster when he found himself in a similar predicament in Great Western Railway Co. v. Bater [1922] 2 A.C. 1 at p. 11, H. L. when he said:

“[T]he embarrassment that I feel is increased with the knowledge that my views are not shared by other members of the House, but this fact is not surprising. It is not easy to penetrate the tangled confusion of these Acts of Parliament, and though we have entered the labyrinth together, we have unfortunately found exit by different paths.”

The principles of interpretation to which I have resorted to interpret section 203 of Cap. 167 are the English principles nurtured by the common law and they are themselves part of the common law. They were existing law in Ghana and they were continued in force by article 126 (1) (e) and (5) of the Constitution, 1969, and they must, in accordance with the said article, “be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring (them] into conformity with the provisions of this Constitution, or otherwise to give effect to or enable effect to be given to any changes effected by this Constitution.”

It seems to me therefore that after 22 August 1969 a fundamental change was effected in the principles of interpretation to be applied in

[p.315] of [1971] 1 GLR 289 construing all Ghanaian statutes. This meant to some extent not abandonment but the parting of the ways in some cases with the English principles. Take, for instance, an English statute that provided as follows that, “Every citizen (of England) being 21 years of age and of sound mind shall not have the right to vote; and accordingly shall not be entitled to be registered as a voter for the purposes of public elections.” The British courts would be bound to give effect to this enactment. It is clear and unambiguous in its terms. A similar law, however, passed by the Ghanaian Parliament affecting Ghanaian citizens would be void and of no effect and no court in Ghana could apply it because it would be inconsistent with article 29 of the Constitution which specifically gives the rights denied here to citizens being of 21 years of age. Such an enactment is accordingly by operation of article 1 (2) of our Constitution castigated, void and of no effect. In this respect it is necessary to appraise the philosophy behind the English principle and to find out whether the same philosophy animates our present principles. The English courts regard the British Parliament as the supreme legislative body in the land with a supremacy unlimited in time and scope. This doctrine pervading the jurisprudence of the British has controlled and dictated the pace of judicial thinking for centuries. It was expostulated in its present form by Coke in his Institutes of the Laws of England, 4 Co. Inst. 36, long ago and it continues unto this day to be the essence of the British philosophy of positive law: “Of the power and jurisdiction of the Parliament, for making laws in proceeding by Bill, it is so transcendent and absolute, as it cannot be confined either for persons or causes within any bounds.” And again as Blackstone stated in proud and unforgetable language in his Commentaries on the Laws of England (3rd ed.) (1884), Vol. 1, p. 185:

“An act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth. It hath power to bind every subject . . . even the king himself . . . And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament . . .”

And so the British courts are tied to the apron strings of Parliament. They are the veritable servants of Parliament committed to do its will and bidding. Thus as Willes J. said in Lee v. Bude and Torrington Railway Co. (1871) 24 L.T. 827 at p. 829:

“[We] must not forget that we are bound by statutes, however they were obtained, and upon their authority only we have power to act. We are servants of the Legislature, and we cannot act as regents over Parliament’s proceedings. We have no power to refuse to act upon a statute.”

Having regard however to the principles of interpretation which I have adverted to it seems to me that the British courts do not just slavishly apply an Act of Parliament. If that is what Willes J. meant then to me it is incredible and amazing that the jurisprudence of a people like the British [p.316] of [1971] 1 GLR 289 so steeped in common sense and dominated by the concept of reasonableness can be said to have failed in over a thousand years of sustained legal development, to forge or create a machinery for preventing such intolerable and ridiculous results as are revealed here in the case of our hypothetical Mr. Jones, results so revolting, to the senses of all persons who have any pretensions to common decency. If our common law heritage committed us to this monstrosity I think the position in Ghana has definitely undergone very drastic and tremendous change since the British left us and the country has travelled far from the days of the decision of the former Supreme Court in Re Akoto [1961] G.L.R. (Pt. 11) 523. We have truly parted ways for this country has never in its history experienced so profound and imperial a constitutional provision as transcendent and supreme as article 1 (2) of the Constitution, reminiscent as it is of medieval, monarchical absolutism. Observe its language: “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.” It seems to me that this constitutional provision at once cast into a crucible on 22 August 1969 all the laws of the land and subjected them to the test of constitutional propriety. All those that failed the test became void and the task of an interpreter and therefore of a Ghanaian judge became to some extent simplified: It is to search in the crucible for the relevant remnants of the inconsistent provisions so that he can refuse to give effect to them. Thus the concept of legislative supremacy, which necessarily colours judicial interpretation in England, can hardly apply here. Our legislature is a subordinate not sovereign institution and it bends to the supremacy of our Constitution as our courts must bow as well to our Constitution when construing any enactment of our legislature. Counsel for the respondent has submitted that if I hold that the interpretation which the Akam case (supra) put on section 203 is unconstitutional I must refer the matter to the Supreme Court for a declaration because of the provisions of article 2 of the Constitution. Now article 2 reads: “(1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect.

(2) The Supreme Court shall, for the purposes of a declaration under the provisions of the preceding clause, make such orders and give such directions as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made.”

In my view that article does not apply to this court, exercising as it does now, its judicial function of interpretation. It looks ridiculous for the court to be equated with “any person” in the article and to argue that the court should bring an action in the “Supreme Court” if it holds that an enactment is inconsistent with the Constitution. I think the proposition need

[p.317] of [1971] 1 GLR 289 only be stated and its inapplicability will be obvious. I think articles 1 (2), 12 (c) and 18 of the Constitution, when read fairly and considered along side the spirit of the Constitution, clearly give a constitutional protection to the rights of property. It is a protection which prevents the legislature from passing any enactment, the effect of which is to deprive an innocent owner who has not infringed the laws of the country, his right to his property without paying him adequate compensation. It is a protection no court in Ghana can legally ignore in view of article 1 (2). The appellant in this case, the owner of lorry GL 2818, is in my view an innocent owner such as I have described above, and therefore the Constitution stops even the legislature, not to mention the Comptroller of Customs and Excise from interfering with his quiet and peaceful enjoyment of his property. it would have certainly surprised all decent citizens, and I am sure even the legislature, if they had learned that despite the Constitution the Comptroller of Customs and Excise had the right to invade the property rights of a law-abiding citizen as is claimed on his behalf by the state attorney.

I must remark that I do not know of any decision of our Court of Appeal approving either the case of De Keyser or Akam. The only decision I have come across is Comptroller of Customs v. Monear, Court of Appeal, 13 February 1969, unreported. Although no principles of interpretation were canvassed in that case, the decision itself accords fully with, and does not contradict, the interpretation advocated in this judgment because in that case the appellant, whose vehicle was condemned, was adjudged to be implicated in the customs offence.

In my view the reasoning in the De Keyser and Akam cases is faulty and the application to the facts of this case of the reasoning in the De Keyser case is erroneous. They are all decisions of persuasive authority and I am neither impressed nor persuaded by the thinking behind them. It is for these and the other reasons I have been at pains to canvass in this judgment that I hold that the order of the district magistrate condemning the vehicle No. GL 2818 is wrong in law. I set aside that order and I hold that that vehicle has never been forfeited and I hereby order that it should be released to the appellant forthwith. The appeal is allowed but in the circumstance since I have had no assistance from counsel there will be no order as to costs either in the court below or in this court.

DECISION

Appeal allowed.

No order as to costs.

T. G. K.