Clarke v Comptroller of Customs

• Jurisdiction: Barbados
• Judge: Williams, C.J.,Husbands, J.A.
• Judgment Date: 10 July 1987
• Court: Divisional Court (Barbados)
• Docket Number: No. 3 of 1987
• Date: 10 July 1987

Divisional Court

Williams, C.J.; Husbands, J.A.

No. 3 of 1987

Clarke

and

Comptroller of Customs

Mr. F. Smith Q.C. for the Appellant.

Miss S. Richards for the Respondent.

Revenue law - Customs — Seizure of ship for smuggling — Customs Act, Cap. 66, s. 189.

JUDGMENT OF THE COURT:

1 Part VII of the Customs Act Cap. 66 contains, as its heading indicates, provisions for the prevention of smuggling,

2 Section 189 enacts inter alia –

• “189(1) where any ship is found or discovered to have been within the waters of the Island

  • (a) ………..

  • (b) having or having had on board or in any manner attached thereto, or conveying or having conveyed in any manner, any goods imported contrary to the customs laws or goods intended for exportation contrary to the customs laws; or

  • (c) ………….

  • (d) ………….

then in every such case every person who is found or discovered to have been on board any such ship………shall, subject to sub-section (2), be liable to a penalty of five hundred dollars, and all such goods shall be liable to forfeiture.”

3 Section 190 enacts that every ship of less than two hundred and fifty tons burden on board which, or in respect of which, any offence against section 189 has been committed shall be liable to forfeiture; and section 191(1) that, with regard to any ship of not less than two hundred and fifty tons burden on board or in respect of which any offence against section 189 has been committed, such ship shall not be liable to forfeiture for such offence, but the following provisions of the subsection are to apply.

4 There are other provisions of the Act to which reference should be made before we turn our attention to the case before the Court.

5 Section 89(1) provides that the goods, the particulars of which are set out in Part I of the List of Prohibited and Restricted Imports (contained in the Second Schedule to the Customs Act 1962) are prohibited to be imported into Barbados and the goods the particulars of which are set out in Part II of that List are restricted to be imported into Barbados save as thereof excepted.

6 Section 223 provides inter alia –

• “(1) An averment in any process in proceedings under the customs laws –

  • (a) ………………..

  • (b) ………………..

  • (c) ………………..

  • (d) ………………..

  • (e) ………………..

  • (f) that any act was done …. in the waters of the Island ….; or

  • (g) that any offence giving rise to proceedings for condemnation under the Schedule has been prosecuted to conviction, shall, until the contrary is proved, be sufficient evidence of the matter in question …..

• (2) where in any proceedings under the customs laws, any question arises as to the place from which any goods have been brought or as to whether or not –

  • (a) …………..

  • (b) any goods or other things whatsoever are of the description or nature alleged in the information writ or other process; or

  • (c) ……………

  • (d) ……………

  • (e) any goods are or were subject to any prohibition of or restriction on their importation or exportation,

then where those proceedings are brought by or against the Comptroller …. the burden of proof shall be upon the other.”

7 Section 207(5) enacts that the Schedule shall have effect for the purpose of forfeitures and of proceedings for the condemnation of anything as being forfeited under the customs laws. Paragraphs 1 and 2 of the Schedule make provision with respect to the notice which is to be given to an owner where anything is seized as liable to forfeiture, and paragraphs 3 and 4 as to the notice which is to be given by anyone claiming anything so seized.

8 Paragraphs 6, 8 and 12 are as follows:–

“6. Where notice of claim in respect of anything is duly given in accordance with paragraph.-3 and 4, the Comptroller shall take proceedings for the condemnation of that thing by the Court, and where the Court finds that the thing was at the time of seizure liable to forfeiture the Court shall condemn it as forfeited.

8. Proceedings for condemnation shall be civil proceedings and shall be instituted in a Court of summary jurisdiction.

12. In any proceedings arising out of the seizure of anything, the fact, form and manner of the seizure shall be taken to have been as set forth in the process without any further...