PRO FARMS LTD. vs. COMPTROLLER OF CUSTOMS AND EXCISE [1973]DLHC2240

Date	1973-09-27
Suit No.
Citation No.	[1973]DLHC2240

FRANCOIS J.

NUTSUGAH FOR THE APPLICANTS.

E. A. ADDO ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1973]DLHC2240
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													<main id="main" class="content" style="min-height: 60rem" >PRO FARMS LTD. <o:p></o:p>vs. <o:p></o:p>COMPTROLLER OF CUSTOMS AND EXCISE <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 278<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
27 SEPTEMBER 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NUTSUGAH FOR THE APPLICANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 2.0pt 0in">

FRANCOIS J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.<o:p></o:p>The
applicants herein are Pro Farms Ltd. of Tema. Some time in March 1972, the
driver of the company’s Mercedes Benz truck entered into contract to cart kola
nuts from Ghana to the Republic of Togo. While on this journey, he was arrested
and the vehicle seized by the army and customs authorities for a breach of the
customs laws. When the company was notified of the seizure it filed a claim.
This claim has been ignored, consequently resort has been had to the court for
redress.<o:p></o:p><o:p>&nbsp;</o:p>Unfortunately
the applicants stumble over the first hurdle, for by section 204 (5) of the
Customs Ordinance, Cap. 167 (1951 Rev.), as substituted by the Customs
(Amendment) (No. 2) Decree, 1972 (N.R.C.D. 84), after notice, the Comptroller
should take court proceedings to determine the question of forfeiture. This has
not been done and the present application is not designed nor does it seek to
compel the Comptroller to do his duty as by law ordained. I cannot understand
why the applicants have not invoked relief by prerogative proceedings.<o:p></o:p><o:p>&nbsp;</o:p>It is
elementary knowledge that where a statute prescribes a remedy that remedy only
must be pursued and no other is supposed to exist. See Azu Crabbe J.S.C. in
Tularley v. Abaidoo [1962] 1 G.L.R. 411 at p. 417 and Bailey v. Bailey (1884)
13 Q.B.D. 855 at p. 859, C.A. The applicants were also entitled to appeal
directly to the Head of State under section 206 of Cap. 167 as substituted by
N.R.C.D. 84. They have not adopted that course either. That aside, there are
other difficulties. On the applicants’ contention that their vehicle was
innocently involved in the transaction which led to its seizure and therefore
it was unconscionable to condemn it for forfeiture, a consideration of section
203 of Cap. 167 as amended by N.R.C.D. 84 is called for.<o:p></o:p><o:p>&nbsp;</o:p>Two
contradictory views have been expressed on the meaning of section 203. In Sam
v. Comptroller of Customs and Excise [1971] 1 G.L.R. 289 Taylor J. held that an
absurdity would result if the section were interpreted to impose absolute
liability. The argument was to the effect that a manifest injustice would
result if for instance a thief used a stolen car to convey uncustomed goods and
the car was eventually seized and forfeited. The thief would lose nothing but
the owner for no default on his part would lose his car. This argument was
however deflated in the now well-known case of De Keyser v. British Railway
Traffic and Electric Co., Ltd. [1936] 1 K.B. 224. But the perfect answer is
given by Abban J. in Comptroller of Customs and Excise v. Nartey [1971] 1
G.L.R. 353 where he referred to the authority conferred on the Head of State by
section 206 of Cap. 167 (now substituted by N.R.C.D. 84) to correct injustices.
One is tempted to add that this power now reserved in the Chairman of the
National Redemption Council, would be pointless if the legislature had not
created an absolute offence and felt in the circumstances that the operation of
the law might cause hardship in certain cases. For it seems to me that
intervention by the highest officer of state, must of necessity relate to
innocent involvement. It would be absurd and certainly not in accord with the
tenor of the customs laws to hold that the Head of State could dispense largesse,
after forfeiture, purely on the grounds of the age or infirmity, or financial
or other straits of a defaulter.<o:p></o:p><o:p>&nbsp;</o:p>If Sam v.
Comptroller of Customs and Excise (supra) is right, then the whole doctrine of
absolute liability is thrown over-board by one dissentient voice. It is my view
that the paramount mischief which the customs laws seek to prevent is the
evasion of duty by smuggling. Where there is a pressing necessity, laws have
been enacted to curb the incidence of the mischief even if the enactments impinge
somewhat on the liberty of the subject and at times appear ha</main>