PRO FARMS LTD. v. COMPTROLLER OF CUSTOMS AND EXCISE

The applicants herein are Pro Farms Ltd. of Tema. Some time in March 1972, the driver of the company's Mercedes Benz truck entered into contract to cart kola nuts from Ghana to the Republic of Togo. While on this journey, he was arrested and the vehicle seized by the army and customs authorities for a breach of the customs laws. When the company was notified of the seizure it filed a claim. This claim has been ignored, consequently resort has been had to the court for redress.

Unfortunately the applicants stumble over the first hurdle, for by section 204 (5) of the Customs Ordinance, Cap. 167 (1951 Rev.), as substituted by the Customs (Amendment) (No. 2) Decree, 1972 (N.R.C.D. 84), after notice, the Comptroller should take court proceedings to determine the question of forfeiture. This has not been done and the present application is not designed nor does it seek to compel the Comptroller to do his duty as by law ordained. I cannot understand why the applicants have not invoked relief by prerogative proceedings.

It is elementary knowledge that where a statute prescribes a remedy that remedy only must be pursued and no other is supposed to exist. See Azu Crabbe J.S.C. in Tularley v. Abaidoo [1962] 1 G.L.R. 411 at p. 417 and Bailey v. Bailey (1884) 13 Q.B.D. 855 at p. 859, C.A. The applicants were also entitled to appeal directly to the Head of State under section 206 of Cap. 167 as substituted by N.R.C.D. 84. They have not adopted that course either. That aside, there are other difficulties. On the applicants' contention that their vehicle was innocently involved in the transaction which led to its seizure and therefore it was unconscionable to condemn it for forfeiture, a consideration of section 203 of Cap. 167 as amended by N.R.C.D. 84 is called for.

Two contradictory views have been expressed on the meaning of section 203. In Sam v. Comptroller of Customs and Excise [1971] 1 G.L.R. 289 Taylor J. held that an absurdity would result if the section were interpreted to impose absolute liability. The argument was to the effect that a manifest injustice would result if for instance a thief used a stolen car to convey uncustomed goods and the car was eventually seized and forfeited. The thief would lose nothing but the owner for no default on his part would lose his car. This argument was however deflated in the now well-known case of De Keyser v. British Railway Traffic and Electric Co., Ltd. [1936] 1 K.B. 224. But the perfect answer is given by Abba