BOARD OF CUSTOMS & EXCISE (APPELLANT)

v.

CATHRINA PATRICK OKORO (RESPONDENT)

(1971) All N.L.R. 630

Division: High Court, Lagos

Date of Judgment: 15th November, 1971

Case Number: SUIT NO. IK/5CA/70

Before: Taylor, C.J.

Appeal from the Magistrate's Court.

HELD:

(1)     What the trial Magistrate seemed to have lost sight of was the fact that as far as legal tender was concerned the prohibition was a total one. The question of a declaration of imported goods for the purpose of assessment of the Customs duty payable does not arise when currency is involved for there is no such thing as duty payable on imported or exported currency notes. There is a strict prohibition against any one taking out or bringing on the person an amount beyond that approved. In the particular case there was an absolute prohibition against the importation into Nigeria of old Nigerian Currency notes.

(2)     The Exchange Control Act, 1962 was in force at the time the offence was committed. The trial Magistrate ought to have taken cognizance of its provisions relating to the interpretation of "goods" regardless of whether an amendment of the charge was granted or not. The effect of those provisions is to extend the definition of the word "goods" as contained in the Customs and Excise Management Act to include money. The two Acts must therefore, at least to that extent, be read together. Consequently, it was clear that the trial Magistrate erred in law in his interpretation of the word "goods" in the Customs and Excise Management Act.

(3)     In this case surely the respondent had evaded a prohibition with respect to the carrying or was concerned with the carrying or dealing with goods including money by the 1962 Act with respect to the importation of which a prohibition was in force. Consequently, the respondent could, on the evidence have been rightly convicted. There was no need for an amendment of the charge.

(4)     In view of the provisions of s. 168 of the Customs and Excise Management Act, it was a gross and grave misdirection for the trial Magistrate to hold that "where a 'mens rea' is an ingredient of an offence it is the duty of the prosecution to prove this ...."

(5)     By virtue of s. 8(1) of Part III of the Fourth Schedule to the Exchange Control Act, 1962 which section also incorporates the Provisions in Part IV, the effect is, reading s. 16(1) of Part IV, that the only way such goods or notes can be imported into Nigeria is with the "permission of the Minister." It was therefore for the accused to have shown that she did so import the goods with such permission.

(6)     She did not show that she had such permission as she was required to do under s. 168 and it seemed to the court that even ignorantia juris non excusat which was not raised would not have availed her. On this point too it was clear that the appeal should succeed.

(7)     The fact that an accused is charge with stealing a large sum does not disentitle the court on the evidence to find him guilty of stealing a smaller sum.

(8)     The fact that a thief caught red-handed openly admits the possession of the goods alleged to have been stolen constitutes no negation of the required intent.

(9)     In this case, the respondent knew the charge; she knew that the substance of the offence was the bringing in of the old Nigerian Currency notes illegally or unlawfully. It could not be seen in what way the amendment would have embarrassed or prejudiced her or caused any miscarriage of justice.

The substance of the offence was the same. Therefore the court below ought to have allowed the amendments subject to the provisions of s. 164 and 165 of the Criminal Procedure Act.

PER CURIAM:

Some sections of the Criminal Procedure Act are based on 14 and 15 Victoria Statutes C. 100 as s. 163 and s. 167 show, whereas others like 158 and 154 are based on the English Indictment Rules of 1915. Our own s. 163 is peculiar to our Criminal Procedure Act in the sense that it is not based on either of those rules or statutes. English authorities cited therefore on the question of amendment are not altogether helpful.

Appeal allowed: Verdict of guilty substituted.

Case referred to:

Okwechime v. Inspector-General of Police, 1956 1 F.S.C. 73.

Act referred to:

Customs and Excise Management Act, 1958 s. 145(a): s. 168.

APPEAL from Magistrate's Court.

SUIT NO. IK/5CA/70.

Sanyaolu for the Appellant.

Respondent absent and Unrepresented.

Taylor, C.J.:-The respondent was charged in the court below with the offence of "knowingly and with intent to evade import prohibition with respect thereto" being concerned "in dealing with goods, to wit, nine hundred and ten pounds (£910) in Nigeria Currency notes with respect to the importation of which prohibition was for the time being in force and thereby committed an offence punishable under Section 145(a) of the Customs and Excise Management Act (No. 55) of 1958."

In the court of the learned Chief Magistrate, as he then was, the facts led in evidence by the present appellant showed that on the 14th January, 1968 at Ikeja Airport the defendant's baggage was examined by a Preventive Officer (P.W.1.) Mowuyae Abdul. The defendant now respondent produced a currency declaration form in which she declared £790-10s-Od. in old Nigerian Currency notes. When questioned as to whether she had any other money she answered in the negative but in fact on searching the respondent the total sum found was £910. The defendant had arrived in Nigeria from Abijan by Ghana Airways.

The respondent, at the close of the case against her did not call evidence or testify on her behalf. Parties addressed the court and judgment was reserved on the 29th April, 1968 for delivery on the 15th May, 1968. On the 15th May when the case was called, learned Counsel for the respondent for reasons unknown applied for an adjournment and the learned Chief Magistrate adjourned the delivery of the judgment to the 24th May, 1968. Whether the judgment was in fact ready for delivery on the 15th May or not the record is silent.

However, on the 24th May, 1968 learned State Counsel for the appellant made an application under s. 163 of the Criminal Procedure Act. The record does not contain the substance of the application of learned Counsel beyond stating the section under which it was brought and the case relied on. A reply was made by learned Counsel for the respondent and ruling was reserved without the appellant's Counsel being called upon to reply.

In the record of the proceedings of the 7th June, 1968 the day on which the ruling was to have been given, the court requested the appellant to state the nature of the amendment required to the charge. When this was done the ruling was further adjourned to the 12th June, 1968. The application was for the charge to read thus:-

"That you Cathrina Patrick Okoro on the 14th day of January, 1968 at Ikeja Airport without the permission of the Commissioner for Finance imported into Nigeria from Ghana nine hundred and ten pounds (£910) in Nigeria currency notes which are legal tender in Nigeria, and you thereby committed an offence under Section 16(1) (A) of the Exchange Control Act, 1962 and punishable under Part II Section 5(3) of the 4th Schedule to said Exchange Control Act, 1962."

In the ruling delivered on the 17th June, 1968, the application to amend the charge was refused, and the learned Chief Magistrate held inter alia that:-

"A cursory glance at the so-called alteration would convince anybody that what the State Counsel did was to substitute an entirely different charge to the one for which evidence had been led and concluded and for which he then sought to alter ... As I stated earlier the State Counsel attempted by an underhand method to try to obtain what he knew perfectly to be legally wrong ..."

With the greatest respect to the learned Chief Magistrate, I fail to see how an application for an amendment of a criminal charge made at any time before delivery of judgment, can, having regard to the provisions of s. 163 of the C.P.A. be described by the court as "an underhand method." Be that as it may, the court later delivered judgment on the 17th day of July, 1968 and the respondent was discharged holding that (i) the respondent could not be charged with "knowingly and with intent to evade import prohibition" because she voluntarily "handed in £880-10s-0d." to the Preventive Officer doing the search. The court held that:-

"There is not the slightest evidence that the defendant 'knowingly and with intent to evade import prohibition with respect thereto were concerned in dealing with goods to wit-Nine hundred and ten pounds in Nigeria Currency Notes."'

What the learned Chief Magistrate would seem to have lost sight of is the fact that as far as legal tender is concerned the prohibition is a total one. The question of a declaration of imported goods for the purpose of assessment of the Customs duty payable does not arise when currency is involved for there is no such thing as duty payable on imported or exported currency notes. There is a strict prohibition against anyone taking out or bringing on the person an amount beyond that approved. In the particular case there was an absolute prohibition against the importation into Nigeria of old Nigerian Currency notes.

The second reason given by the learned Chief Magistrate for discharging the respondent is that the word "goods" as contained in s. 145 of the Customs and Excise Management Act 1958 does not include money by the Interpretation Act. The court held inter alia that:-

"There is no evidence that it is the intention of the Legislature to prohibit the importation of money under this Section."

In the appeal filed by the appellant two additional grounds were argued with leave of the court. I shall deal with the second ground first for I am of the view that the result of Ground 1 or the arguments on it depend on this second ground. During the argument of learned Counsel for the appellant in the court below recorded on the 7th June, 1968, the court's attention was drawn to the Exchange Control Act of 1962 with particular reference to the 4th Schedule. This Act was of course in force at the time the offence was committed and the learned trial Chief Magistrate should have taken cognizance of some of its important provisions relating to the interpretation of "goods" regardless of whether an amendment of the charge was granted or not. The effect of the scope of those provisions of which I shall make mention is to extend the definition of the word "goods" as contained in the Customs and Excise Management Act. The two Acts must therefore, at least to that extent be read together. in the Fourth Schedule, Part III s. 8(1) reads thus:-

"The enactments relating to customs shall, subject to such modifications, if any, as may be prescribed to adapt them to this Act, apply in relation "to anything prohibited to be imported or exported by any of the provisions of Part IV of this Act except with the permission of the Minister as they apply in relation to goods prohibited to be imported or exported by or under any of the said enactments..."

In Part IV. s. 16 and 17 deal with importation and exportation of any notes which are or have at any time been legal tender in Nigeria. It is clear from this provision of the Act that the learned Trial Chief Magistrate erred in law in his interpretation of the word "goods" in the Customs and Excise Management Act aforesaid. Learned Counsel for the respondent did not advance any argument on this point and addressed me only on the point as to amendment.

I will for the moment deal with the charge as it stood under s. 145(a) of the Customs and Excise Management Act and in that respect I shall here set out the relevant portion of that section which is relevant to this charge. In so doing I am reading the 1962 Act together with it in its interpretation of the word "goods." It reads thus:-

"Without prejudice to any other provision of this Ordinance, if any person:-

knowingly and with intent ... to evade any prohibition with respect thereto ... is in any way concerned in the carrying ...

or in any manner dealing with any goods (LEGAL TENDER) ... with respect to the importation, exportation or carriage coastwise of which any prohibition is for the time being in force ... he shall be liable to ..."

Leaving out for the moment the effect to be given to the words "knowingly and with intent" surely the respondent has evaded a prohibition with respect to the carrying or is concerned with the carrying or dealing with goods including money by the 1962 Act with respect to the importation of which a prohibition is in force. It seems to me that provided there is a significance to be attached to the word "knowingly and with intent" the respondent could, on the evidence have been rightly convicted.

Now as to the effect of the words "knowingly and with intent", it is provided in s. 168 of the Customs and Excise Management Act that:-

"In any prosecution for an offence under the customs or excise laws it shall not be necessary to prove knowledge or intent, but where the

"prosecution is in respect of an offence of doing any thing knowingly or recklessly or with a specified intent, the onus of disproving that he did such thing knowingly or recklessly or with such intent shall be on the defendant."

In the present circumstances of this case the learned trial Chief Magistrate never made reference to s. 168 but held erroneously, at least in respect to prosecutions under this Act that:-

"Where a 'mens rea' is an ingredient of an offence it is the duty of the prosecution to prove this ..."

This is a gross and grave misdirection sufficient to warrant the success of this appeal. But I think one should go further in the circumstances presented by this case. The defence did not choose to give evidence and the only point that may be adduced in her favour is the following finding of fact by the learned trial Chief Magistrate that:-

"Only a sum of £30 was found in her box when she was searched. Could it be said that the defendant was trying to evade the import prohibition when she voluntarily handed in £880-10s. How then could she have been charged for 'knowingly and with intent to evade."

There are at least two answers to this question that I can think of readily. In the first place the fact that an accused is charged with stealing a large sum does not disentitle the court on the evidence to find him guilty of stealing a smaller sum. In the second place by virtue of s. 8(1) of Part III of the Fourth Schedule to the 1962 Act aforesaid, which section also incorporates the Provisions in Part IV, the effect is, reading s. 16(1) of part IV, that the only way such goods or notes can be imported into Nigeria is with the "permission of the Minister." It was therefore for the accused to have shown that she did so import the goods with such permission. The fact that a thief caught red-handed openly admits the possession of the goods alleged to have been stolen constitutes no negation of the required intent. She did not show that she had such permission as she is required to do under s. 168 and it seems to me that even ignorantia juris non excusat which was not raised would not have availed her. On this point too it is clear that the appeal should succeed.

I shall however, though not necessary for the purposes of this appeal, deal with the question of whether an amendment should or should not have been granted. The provision dealing with the application for an amendment reads thus:-

"Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused."

My attention was drawn by Mr Arthur-Worrey to the case of Okwechime v. Inspector-General of Police 1956 1 F.S.C. 73 where Jibowu Ag. F.C.J. interpreted that section as follows:-

"The learned Judge was of opinion that the word 'alter' in the context means more than 'amend' and includes 'substitute'. With this view we respectfully agree. In view of the fact that new charges could, under the section, be added to the original one, it would be unreasonable to hold that alteration of the charge cannot be extended to the framing of a new charge in place of the original one."

In the case on appeal, as learned Counsel for the respondent admitted during the hearing of the appeal, the respondent knew the charge; she knew that the substance of the offence was the bringing in of the old Nigerian currency notes illegally or unlawfully. I cannot see in what way the amendment would have embarrassed or prejudiced her or caused any miscarriage of justice. The substance of the offence was the same. In my view the court below ought to have allowed the amendments subject to the provisions of s. 164 and 165 of the Criminal Procedure Act.

Before closing this judgment I want to draw attention to the fact that some sections of the Criminal Procedure Act are based on 14 and 15 Victoria Statutes C. 100 as s. 164 and s. 167 show, whereas others like 158 and 154 are based on the English Indictment Rules of 1915. Our own s. 163 is peculiar to our Criminal Procedure Act in the sense that it is not based on either of those rules or Statutes. English authorities cited therefore on the question of amendment are not altogether helpful. It should for example be borne in mind that in the 14 and 15 Victoria Statues C. 100 s. 1 the side note dealing with amendment reads thus:-

"The court may amend certain variances not material to the merits of the case and by which the defendant cannot be prejudiced in his defence and may either proceed with or postpone the trial to be had before the same or another jury."

This is far different from our own very much wider provision. For the reasons already given and in particular for the reasons given in relation to the interpretation of the word "goods" and the view expressed that there was no need for an amendment this appeal is allowed. The judgment of acquittal and Not Guilty are here set aside. In view of the fact that the learned Chief Magistrate is now on the High Court Bench I substitute a judgment or verdict of Guilty and will hear the parties on sentence.

Mr Sanyaolu:-s. 145 provides for six times the value of the goods or £200 fine whichever is greater or imprisonment of two years. Ask for fine to six time the amount. I ask Court to exercise its discretion.