Curtis v Comptroller of Customs et Al

JurisdictionBahamas
CourtSupreme Court
JudgeGeorges, C.J.
Judgment Date28 Jul 1988
Docket NumberCommon Law Side No. 437 of 1988

Supreme Court

Georges, C.J.

Common Law Side No. 437 of 1988

Curtis
and
Comptroller of Customs et al
Appearances

Rawle Maynard for the plaintiff

Jon Isaacs for the defendants

Revenue law - Imported goods — Missing invoice — Goods seized as result — Whether seizure by Comptroller of Customs legal — Customs Management Act, 1976, s. 116(b) — Plaintiff not entitled to declaration that seizure unlawful.

Georges, C.J.
1

The plaintiff is a merchant in Freeport, trading under name Curtis Export and Motorcycle Parts. He has for a number of years done business with a firm in Florida, Miami Hondaline. Such is the relationship between the firms that the plaintiff is able to have goods dispatched to him in response to an order placed by telephone.

2

On 14 January, 1988 a shipment of motor cycles and motor cycle spare parts from Miami Hondaline arrived in Freeport consigned to the plaintiff's firm. Two invoices accompanied the shipment – one for 10 motorcycles invoiced at $7,250.00 and the other for motorcycle parts. On the face of the invoice for parts appeared the words and figures “20 Ctns.” The plaintiff engaged a firm of brokers to the clear shipment. The goods had arrived by a container, which had been transported, to the plaintiff's premises.

3

After the brokers had submitted Home Consumption Entry for the shipment, Customs Officer, Ms. E. Ambrister, came to plaintiff's premises on 15 January, 1988 to inspect the goods. When the sealed container was opened it was found to contain 20 cartons as was written on the invoice, but there were many more parts in the cartons than appeared on the invoice. The plaintiff telephoned the shippers, Miami Honda Line. Ms. Ambrister listened to the conversation. The shippers asserted that they had dispatched complete invoices for all the parts shipped.

4

On 18 January, 1988 the plaintiff produced to the Deputy Comptroller of Customs in Freeport an invoice listing all the parts in the 20 cartons. He stated that for some unexplained reason two pages of a three-page invoice had become detached from the top page which had originally been submitted with the Entry Form on 14 January, 1988. The Deputy Comptroller ordered that the shipment be seized.

5

A notice of seizure was served on the plaintiff on 26 January, 1988. This was addressed to the plaintiff and stated that foods comprised in the consignment –

“have been seized as liable to forfeiture under the Bahamas Customs Management Act; 1976 on the following grounds - False declaration 116(b).”

6

The notice went on to state –

“If you claim or intend to claim that the things seized are not liable to forfeiture you should, within one calendar month from the date of this notice, give notice in writing of your claim in accordance with section 17 of the Customs Management Act, 1976. In default of such notice the things will be deemed to have been lawfully condemned and will be liable to be disposed of in such manner as the Comptroller may direct.”

7

The goods were in fact physically moved from the Plaintiff's premises. As a result he took legal advice and an attorney on his behalf wrote demanding the return of the goods. The Deputy Comptroller replied justifying the seizure and thereupon the originating summons, which launched these proceedings, was filed.

8

The questions posed for determination were as follows –

  • “1. Whether the Comptroller of Customs is empowered to seize and forfeit property for a breach of Section 116(b) of the Customs Management Act?

  • 2. Whether in the circumstances of the present case and especially in the absence of any trial or hearing in any court the First defendant on the 26 th January, 1988, lawfully seized and detained the plaintiff's property consisting of 216 items of motor cycles and motorcycle parts?”

9

The plaintiff also claimed a declaration that the seizure motorcycles and the motorcycle parts were unlawful and an injunction restraining the First defendant from destroying or disposing the goods. There was also a prayer for damages for loss of use Customs and for costs.

10

In his affidavit in reply the Deputy Comptroller stated that the fact that the invoice submitted with the entry bore on its 20 cartons, which matched the quantity declared on the entry, and the bill of lading led him to believe that an attempt had been made to defraud the revenue.

11

Paragraph 7 of his affidavit read –

  • “7. That I requested assistance from Special Agent Leon Casey, U.S. Customs in verifying the sale of the goods and also the price paid for the same. I am informed and verily believe there was a sale of ten (10) motorcycles bearing the identical serial numbers, make, model and year (markings) as those described on Duty Entry No. 1328 but the sales agreement provided by the U.S. Customs differed from the invoice (sales agreement) provided with Duty Entry No. 1328. The documents provided by U.S. Customs showed a total price for the ten (10) motorcycles of Ten Thousand, One Hundred and Fifteen Dollars and Fifty Cents ($10,115.50) but the document produced by Mr. Curtis showed a total price of Seven Thousand, Two Hundred and Fifty Dollars ($7,250.00). The invoice provided by Mr. Curtis is attached hereto and marked “J.A.R. 5”. A copy of the documents provided by the United States Customs is attached hereto and marked “J.A.R. 6”.”

12

Mr. Maynard for the defendant submitted that the allegations set out in that paragraph were hearsay and should not be taken into account in the determination of the issues. I accept this submission. In interlocutory proceedings hearsay is admissible once the deponent states the source and deposes as to his belief in the allegations set out. The matter now being heard is to be finally determined. The invoices received from Special Agent Leon Casey, U.S. Customs are not properly identified in the absence of an affidavit from him disclosing how they came into his possession.

13

Section 116(b) of the Customs Management Act, 1976 (the Act) - the section mentioned in the seizure notice reads –

“Any person who in any matter relating to the Customs –

(b) makes or causes to be made any declaration, certificate, application or other document, which is false in any material particular,

commits an offence.”

14

In this case the entry containing the falsehood was made not by the plaintiff himself but by his broker. Section 142 of the Act is, therefore, relevant. This reads –

“An owner of goods who authorizes an agent to act for him in relation to goods for any of the purposes of this Act shall be liable for the acts and declarations of the authorized agent and may accordingly be prosecuted for any offence committed by the agent in relation to the goods as if he had himself committed the offence.”

15

A proviso states that in such circumstances an owner, if convicted, will not be liable to imprisonment unless he consented to the commission of offence. The plaintiff would, therefore, be liable for any falsehood in the entry submitted by his broker.

16

The penalty prescribed for a breach of section 116(b) of Act does not include the forfeiture of the goods in relation to which the false declaration has...

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