THE Appeals Court of the Eastern Caribbean Supreme Court has called on the Customs and Excise Department to always be mindful of its dual role of ensuring the proper collection of revenues balanced against the facilitation of legitimate business enterprises.
That call is part of a judgement against the Comptroller of Customs and Excise that could very well serve as a lesson to future comptrollers who abuse the powers vested in them.
The case has its genesis in an incident that occurred six years ago when the Comptroller of Customs seized three containers of automotive parts belonging to Econo Parts Limited on 24 September, 2013. The consignments were seized by virtue of two notices of seizure by the Customs and Excise Department.
The Department alleged statutory violations of improper importation, making untrue declarations, submitting counterfeit documents and attempting to evade the payment of chargeable duties on the items in the consignments.
Following the seizure of the goods, Econo Parts Ltd., by letters dated 24th October, 2013 and 6th January 2014, gave notice to the Comptroller of their intention to make a claim against the seizure in accordance with section three of schedule four of the Customs Act.
The case opened in the high court where Econo Parts Ltd., on 10th March 2016, obtained leave to file judicial review proceedings which came up for hearing a year later. The company sought to impugn the notices of seizure on several bases including that: the Comptroller and his officers did not comply with the statutory requirements as to a summary of the facts supporting the charges; the Comptroller and his officers did not particularise the allegations of fraudulent evasion of payment of duties, and other procedural defects. Econo Parts Ltd. challenged the lawfulness of the decision to issue the notices of seizure in the absence of any evidence of under-invoicing.
The judge in the high court ruled in favour of Econo Parts Ltd. by granting orders of certiorari quashing the notices of seizure on the basis that the notices were unlawfully issued, but declined to award costs and damages on the basis that damages were not a relief claimed; special damages were not proven on the basis of the statutory protection afforded by virtue of section 133(2) of the Customs Act as the judge was satisfied that the Comptroller had reasonable grounds for detaining the containers.
Econo Parts Ltd. appealed the case citing eight grounds for appeal, the main one being whether the judge erred in granting the Comptroller the statutory immunity set out in section 133(2) of the Customs Act, especially when there had been a “deplorable abuse of power”.
The appealed case came up for hearing before justices Dame Janice M. Pereira, Mde. Gertel Thom and Mr John Carrington in April of this year with the verdict given close to four month later.
The justices all agreed that nominal damages in the sum of $20,000.00 and vindicatory damages in the sum of $75,000.00 should be awarded to Econo Parts Ltd. plus costs to be assessed if not agreed within 21 days, and on appeal, at two thirds of the assessed costs.
According to the three justices, relevant to the appeal was the high court judge’s finding that the notices of seizure were unlawfully issued based on suspicion and not on having ascertained that the goods were in fact actually liable to forfeiture. The judge also noted that the failure to institute condemnation proceedings after three and a half years following the issuance of notices of seizure under section 130 of the Customs Act read together with schedule 5 of the Act constituted an unreasonable delay in the circumstances of the case. The high court judge described the case as “a most deplorable abuse of power by the Comptroller”.
Justice Dame Janice Pereira, who wrote the verdict and to which the other justices concurred, commented on the lack of promptitude by the Comptroller to initiate condemnation proceedings.
“It is true that the Customs Act endows the Comptroller and his officers with very wide and intrusive powers of detention and seizure, which can potentially impinge on the constitutional right to protection from deprivation of property. It is incumbent on the Comptroller to ensure that such powers are not misused but are exercised within the bounds of the law so that the constitutional rights of citizens, which are to be jealously guarded, are not trampled on,” noted Justice Pereira.
She added, “There appears to be a continued failing by the Comptroller and his officers to follow the statutory procedures prescribed by the Customs legislation, not because they are unaware of the provisions, but simply because a plenitude of powers reside in their hands. When the powers are invoked it must be on the basis that to do so is reasonable, proportionate and for a proper purpose. They are not given for allowing or licensing abuse,” Pereira wrote.
“The Court”, she said, “deprecates the seemingly deliberate disregard for the procedure set out in the Customs Act despite the obvious consequences. The laxity with which this matter was treated coupled with the overall tenor of the officers’ expressions and actions can only be considered as a most deplorable abuse of power.”
Justice Pereira wrote in her judgement that it was up to the Comptroller to initiate condemnation proceedings with all convenient speed and not otherwise.
“The Comptroller simply cannot opt to sit idly by in what I think is a rather complacent manner. Such complacency can have dire consequences, as here, for a legitimate business enterprise. The Customs Department must always be mindful of their dual role of ensuring the proper collection of revenues balanced against the facilitation of legitimate business enterprises,” she said.
