TAMALE IMPLEMENT FACTORY LTD. vs. CUSTOMS, EXCISE & PREVENTIVE SERVICE [2004]DLCA6594

Date	2004-12-10
Suit No.	CIVIL APPEAL NO. HI/159/2004
Citation No.	[2004]DLCA6594

ARYEETEY JA

QUAYE JA

ANIN-YEBOAH JA

KUENYEHIA FOR RESPONDENTS

L.F. YANKSON WITH DAVID ATTOH AND AMUZU FOR APPELLANT

[2004]DLCA6594
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													<main id="main" class="content" style="min-height: 60rem" >TAMALE
IMPLEMENT FACTORY LTD.<o:p></o:p>(PLT/RESPTS)<o:p></o:p>vs.<o:p></o:p>CUSTOMS,
EXCISE &amp; PREVENTIVE SERVICE<o:p></o:p>(DEFTS/APPLTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. HI/159/2004.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH
DECEMBER, 2004.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">L.F. YANKSON WITH DAVID
ATTOH AND AMUZU FOR APPELLANT.<o:p></o:p>

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115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY, JA QUAYE, JA AND
ANIN-YEBOAH, JA<o:p></o:p>

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</div>G.M.
QUAYE, JA <o:p></o:p>In
the early part of the year 1999, the plaintiff [herein respondents] placed an order
for the importation into Ghana from Germany, of itemised raw materials for
conversion into farming implements. The said raw materials comprised: <o:p></o:p>4
bundles of mild steel flat bars with gross weight of 10.052 kg <o:p></o:p>5
bundles of cold rolled steel sheets with gross weight of 9.900 kg <o:p></o:p>5
bundles of hot rolled steel sheets with gross weight of 12.425 kg <o:p></o:p>2
bundles of galvanized steel sheets with gross weight of 3.975 kg and <o:p></o:p>1
bundle of galvanized welded pipes with gross weight of 2.720 kg. <o:p></o:p>The
total cost of the imported raw materials was quoted in the United States
dollars to be $26,085.96 see Exhibit A and Exhibit B, the bill of lading and
Commercial Invoice respectively. Evidence was led to show that the ship
carrying the raw materials arrived at the Tema Port in Ghana on 19th April
1999. On that same date the importers, the respondents in this case, applied
through the Ministry of Food and Agriculture for a waiver of payment of duty on
the said raw materials since they were meant for the production of animal
traction equipment. This letter of application was tendered into evidence in
the trial court as exhibit C. In furtherance of this application a letter was
issued from the Agriculture Engineering Services Department to the Sector
Minister recommending favourable response to the application.<o:p></o:p>&nbsp;Even though no letter was exhibited as
emanating from the Minister of Food and Agriculture in support of the
respondents’ application for exemption from payment of duty on the imported raw
materials, subsequent developments undisputably suggest that the Minister had
communicated with the appellants herein with regard to that subject matter. In
the event the appellants, by the Assistant Commissioner of Custom purportedly
acting for the Commissioner of C.E.P.S. granted the sought for exemption by his
letter dated 7th June 1999. This letter, (Exhibit E) which was addressed to the
Assistant Commissioner C.E.P.S Tema, and according to the oral evidence of the
D.W.1, copied to the applicant as well as the Deputy Commissioner, Research,
Monitoring and Planning. It may be mentioned cursorily that from the face of
exhibit E it appears that apart from the applicant for waiver, and the
principal addressee, the letter of approval was authored by an officer of CEPS
and copied to officers all stationed at the headquarters of the appellants.
Exhibit E granted approval to the respondents to clear the imported items free
of duty. The letter of approval ended with an information that the Company, ie.
the respondents in this appeal were, by a copy of the said letter, being
informed of the approval accordingly. In order to effectuate this information a
copy of exhibit E was purportedly sent, given or provided to “The General
Manager, Tamale Implement Factory Ltd.Tamale.” According to the respondents,
exhibit E was faxed to them by their agent “Olmann Export/Import Company” who
were based in Accra, on 9th September 1999. On the same day the respondents
instructed their said agents to clear the imported raw materials through
custom. The process was accordingly initiated and while the agents were at it,
their progress grounded to a halt when they came to the realisation that the
goods were, after all, not available for clearing as they had been sold at a
public auction by the appellants on 20th October 1999. It was natural for the
respondents to become confused and wonder as to what might have gone wrong. In
their bid to unravel the circumstances, the respondents wrote three letters at
intervals to try to elicit answers or explanation from the appellants
concerning the sale of the imported raw materials. The first of the three
letters was dated 8th November 1999. <o:p></o:p>