Williams et Al v Attorney General

• Jurisdiction: Barbados
• Judge: Hanschell, J.
• Judgment Date: 27 February 1959
• Neutral Citation: BB 1959 HC 8
• Court: High Court (Barbados)
• Date: 27 February 1959

Supreme Court

Hanschell, P.J.

Williams et al

and

Attorney General

Appearances:

Mr. W.H.A. Hanschell for the plaintiff.

Mr. D.A. Williams for the defendant.

Revenue law - Customs duties — Trade Act, 1910, s. 165 — Whether section ousts jurisdiction of court by the rule in Barraclough v. Browne

Hanschell, J.

1 This action, filed in the Court of Chancery, is transferred to the Supreme Court on the coming into operation of the Supreme Court of Judicature Act, 1956.

2 The action is brought against the defendant as the representative of the Crown in respect of its right of Government of the Island of Barbados.

3 By consent of both parties the pleadings were amended to include a sixth sugar cane trailer.

4 It is not disputed that the plaintiffs imported into this Island six sugar cane trailers for resale to sugar estates and landed and deposited them in the custody of the Comptroller, that a dispute arose between the plaintiffs and the Comptroller as to whether the said trailers were exigible to import duty and that the Comptroller refused to deliver the said trailers unless the disputed duty demanded by him was first paid. Nor is it disputed that the plaintiffs made unsuccessful attempts with the Comptroller and the Ministry of Trade, Commerce and Industry to have the dispute resolved on a basis acceptable to both sides without prepayment of the disputed duty.

5 The plaintiffs allege that the said trailers were required and imported for the purpose of reaping and manufacturing sugar and that they were to be and have since been exclusively used for that purpose. The defendant denies this allegation.

6 It is further alleged by the plaintiffs that they deposited the sums of $1,200 and $244.46 with the Comptroller, on behalf of the Government of this Island, being the equivalent of the disputed import duty on the said trailers and that the trailers were delivered from the custody of the Comptroller to the plaintiffs.

7 It is further alleged by the plaintiffs that the said payments of $1,200 and $244.46 were not voluntary payments on the part of the plaintiffs but were made by the plaintiffs and accepted by the Comptroller, on behalf of the Government of this Island, whilst the dispute was sub judice, and on the understanding and implied agreement that the said payments and acceptance of the said sums of money were subject to repayment by the defendant if court proceedings resulted in the plaintiffs' favour; and that it was neither a term nor condition of the said implied agreement that the said sums were either paid by the plaintiffs or received by the defendant on the footing that the defendant was to keep them in any event.

8 The defendant denies that the plaintiffs deposited the said sums of money being the equivalent of the disputed import duty on the said trailers but says that the plaintiffs paid under protest the said sums being the import duty on the said trailers and that the said trailers were thereupon delivered from the custody of the Comptroller to the plaintiffs.

9 The defendant denies that the said payments were not voluntary payments; denies that they were made by the plaintiffs and accepted by the Comptroller, on behalf of the Government of this Island, whilst the above-mentioned dispute was sub judice and on the understanding and implied agreement that the said payments and acceptance of the said sums were subject to repayment by the defendant if court proceedings resulted in the plaintiffs' favour and says that the said payments by the plaintiffs to the Comptroller, on behalf of the Government of this Island, were voluntary payments on the part of the plaintiffs and that it was not the mutual understanding nor an agreement implied or otherwise that the said payments were subject to repayment by the Comptroller if court proceedings resulted in the plaintiffs' favour or at all and says that at the time of the said payments the dispute was not sub judice.

10 The plaintiffs contend that he is not exigible to import duty in respect of the importation of the said trailers, whereas the defendant contends that the plaintiffs are so exigible.

11 The plaintiffs allege that the defendant has refused to return the said sums to the plaintiffs, although so requested by the plaintiffs, and claims alternative declarations and order for the repayment of the said sums by the defendant with interest.

12 The defendant has raised in limine the question of jurisdiction pleaded in paragraph 7 of his Answer and submits that having regard to the provisions of section 165 of the Trade Act 1910 the court has no power to determine the question whether or not the plaintiffs are exigible to import duty in respect of the said trailers. In the alternative, he submits that if the court holds that it has jurisdiction, in view of the provisions of section 165 and of the fact that the plaintiffs have referred this matter to the Governor-in-Executive Committee, the court could not exercise its jurisdiction until the other authority has completed its jurisdiction.

13 In the course of argument I have been referred by both sides to the agreed bundle of correspondence filed in this action and for the purposes of the first submission in lirnine it will be necessary to refer to them and indeed to find certain facts necessary for the determination of this point; each side having based their argument in law on this point, on the circumstances (as interpreted by each), in which the said payments were made and the said trailers delivered from the custody of the Comptroller.

14 The defence has submitted that the facts are as follows:

15 The Comptroller demanded the payment of duty in the sums above-mentioned, the plaintiffs contended that they were not exigible to duty in respect of the trailers because, as they contended, the trailers were importable free of duty: the Comptroller refused to deliver the said trailers without prepayment of the duty demanded by him, the plaintiffs attempted unsuccessfully with the Ministry of Trade to have the matter resolved without prepayment of the disputed duty. That the plaintiffs subsequently paid the duty as provided by section 185 of the Trade Act 1910 whereupon the trailers were delivered from the custody of the Comptroller to the plaintiffs and the plaintiffs requested that the dispute be referred to the Governor-in-Executive Committee as provided by the said section 165.

16 On these facts the defence have argued that the dispute as to whether the trailers are exigible to duty at all is a dispute “as to the proper amount of money payable in respect of duty on goods imported” which are the words of the said section 165, and that this dispute clearly comes within the provisions of that section. That the first part of this section is obligatory and that having paid the duty under the first part you cannot recover the same in the courts because the courts cannot give relief against express statutory provision, that the legislature therefore in the second part of section 165 gave the right to recover the same and provided the remedy by prescribing that the person from whom the duty is demanded may go to the Governor-in-Executive Committee. That the statute has given a right and provided a remedy “uno flatu” and that the jurisdiction of this court is therefore ousted under the rule in Barraclough v. Browne [1897] A.C. 615.

17 The plaintiffs have submitted that the facts are that they deposited the abovementioned sums being the equivalent of the disputed duty demanded by the Comptroller on the understanding and implied agreement that they were subject to repayment if court proceedings resulted in the plaintiffs' favour. They argue that what they paid was not duty, that they made no payment under section 165 because that section does not apply to a dispute such as this, but applies to disputes as to quantum only and not to questions of whether or not goods are liable to duty at all. That the question here is one of law and that the Governor-in-Executive Committee is an administrative body and is not competent to decide questions of law. They argue that the section creates no new right and therefore the jurisdiction of this court is not ousted by the rule in Barraolough v. Browne. Further, that the jurisdiction of superior courts is only ousted by express words or by necessary implication, and that there are no express words or clear implication here that the legislature intended to oust the jurisdiction of the courts. That at the most section 165 creates an alternative remedy and that in that case the plaintiff may come to the court instead of availing himself of such alternative remedy.

18 Upon studying the agreed bundle of correspondence filed herein I have found that the plaintiffs approached the Ministry of Trade in connection with this dispute and that the Minister gave as his opinion that the trailers were subject to duty. Subsequently the plaintiffs' counsel, Mr. W.H.A. Hanschell, wrote to the Comptroller inviting further consideration of the matter by him in consultation with his legal advisers. In reply to this the Comptroller wrote that in his opinion the trailers were liable to duty and in this letter he drew Mr. Hanschell's attention to section 165 of the Trade Act 1910 “relating to the settlement of disputes as to customs duties…”...