[1953] EACA 9

## ORIGINAL CIVIL

## Before WINDHAM, J.

## GOVINDJI RAMJI, Plaintiff

## THE REGIONAL COMMISSIONER OF CUSTOMS AND EXCISE, Defendant Civil Suit No. 70 of 1953

Customs and Excise—Customs Management Ordinance (Cap. 261), section 216 (b) -Motor-car entering Uganda on carnet de passage from Belgian Congo and then into Kenva—Control of Imports Order, 1941, regulation 2—Car imported without import licence into Kenya—Importation of goods from a "foreign port" via Uganda-Whether import licence necessary-Whether car lawfully seized—Smuggling contrary to section 216 (a) originally alleged—Whether estoppel from maintaining seizure under section $216$ (b).

A Chevrolet motor-car originally imported into the Belgian Congo lawfully entered Uganda under a carnet de passage. The car was subsequently driven into Kenya and sold to the plaintiff. No import licence had been obtained. The Regional Commissioner first served a notice that the car was subject to forfeiture in terms of section 216 (a) of the Customs Management Ordinance (Cap. 261): but, abandoned this and forfeited the car (relying upon the provisions of section 216 (b)) as having been imported in contravention of import regulations, viz. paragraph 2 of the Control of Imports Order, 1941. The plaintiff maintained that the seller had no necessity to comply with the regulations since the car was not "imported" within the meaning of that term as defined in the Customs Management Ordinance and the defendant was estopped from forfeiting the car under section 216 (b) by his holding out that in the first place that the car had been smuggled in contravention of section 216 $(a)$ of the Ordinance.

Held (22-10-53).-(1) Regulation 2 of the Control of Imports Order, 1941, requires not merely a carnet de passage issued in the Belgian Congo, but an import licence granted by the<br>Customs Authorities in Kenya. Since no such licence was obtained for the car on its entry from Uganda into Kenya, the car, if imported into Kenya, was imported in contravention of a regulation and thus was forfeitable under section 216 $(b)$ of the Customs Management Ordinance. Meaning of "foreign port" c

(2) Section 133 (b) of the Customs Management Ordinance specifically contemplates<br>that goods may be "imported" into Kenya from Uganda after having been imported<br>into Uganda from somewhere outside that territory. That is wh instance.

(3) "Importation" in regulation 2 of the Control of Imports Order, 1941, includes<br>an importation into Kenya of any goods directly from Uganda but originally and indirectly from a foreign port such as some place in the Belgian Congo.

(4) The car was therefore "imported" into Kenya for the purpose of regulation 2 of the Customs Management Ordinance Control of Imports Order, 1941, and of section 216 (b) of the Customs Management Ordinance and, since no import licence was obtained it was properly forfeited under the sub-section.

(5) The notice given by the Commissioner relating alleged smuggling was a superfluity and legally unnecessary and the mention in that notice of section $216$ (a) of the Customs Management Ordinance did not estop the Commissioner from later relying upon section 216 $(\vec{b})$ of the Ordinance.

O'Brien Kelly for plaintiff.

Hooton, Senior Assistant Legal Secretary, for defendant.

This is an action by a car owner against the Regional Commissioner of Customs and Excise, claiming damages equivalent to the value of his car (a Chevrolet saloon) suffered through the allegedly wrongful seizure of that car by the defendant upon its entry into Kenya from Uganda, in pursuance of the power to seize forfeited goods conferred on him by section 194 of the Customs. Management Ordinance (Cap. 261). The seizure was effected because the defendant considered the car to be forfeited to Her Majesty under section 216 of that Ordinance. The relevant part of section 216 provides as follows: -

"216. The following goods shall be forfeited to Her Majesty:-

- (a) All smuggled goods. - (b) All goods imported in contravention of any prohibition restriction or regulation..."

There follows an exemption provision in paragraph $(b)$ which is inapplicable, and the remainder of section 216, with the possible exception of paragraph $(h)$ , is also irrelevant.

By agreement between counsel, no evidence has been called in this case (save for the production of certain documents and correspondence) and there has been submitted instead a written statement of agreed facts, in the light of which the conduct of the case has reduced itself to legal submissions.

The defence contends that the plaintiff's car was forfeited under section 216 (b) of the Ordinance, and, therefore, rightly seized, as having been imported in contravention of no fewer than four distinct "prohibitions, restrictions or regulations", in particular paragraph 2 of the Control of Imports Order, 1941. and paragraphs $(a)$ , $(b)$ and $(c)$ of regulation 4 of the Motor Vehicles (Temporary Importation) Regulations appearing at page 3492 of Vol. VII of the Subsidiary Legislation of the Laws of Kenya, 1948. Learned counsel for the appellant concedes that the requirements of the above provisions of the law were not complied with, but he argues that there was no obligation on the part of the then owner of the car (who later sold it to the appellant) to comply with any of them. This contention he bases on the proposition that since the car was admittedly lawfully imported from the Belgian Congo into Uganda upon a carnet de passage, there was no necessity to comply with those provisions, which apply where<br>goods are "imported" into Kenya, because (he argues) in such a case the car cannot be said to have been "imported" within the meaning of that term as defined in the Customs Management Ordinance. Since contravention of only one of those provisions would justify forfeiture under section 216 $(b)$ of the Customs Management Ordinance, it will be sufficient for the purpose of this action if it can be shown that there was a contravention of any one of them. Let us, then, consider the case of regulation 2 of the Control of Imports Order, 1941.

Regulation 2 of the Control of Imports Order, 1941, provides that "the importation into the Colony of all goods is prohibited except in accordance with a licence granted by the Commissioner of Customs". There follows an exemption proviso which is inapplicable. The regulation requires, it will be noted, not merely a carnet de passage issued in, e.g. the Belgian Congo, but an import licence granted by the customs authorities in Kenya. Since it is admitted that no such licence was obtained for the appellant's car on its entry from Uganda into Kenya, or at all, the car was clearly imported into Kenya "in contravention of a prohibition, restriction or regulation", and thus became forfeitable under section 216 (b) of the Customs Management Ordinance, always provided that it can be said to have been "imported" into Kenya at all.

Now. in the definitions set out in section 2 of the Customs Management Ordinance, which -definitions ,are stated in that section •to apply *"in* all Custo\_ms Or,dinances", which phrase in the light of the definition of "Ordinance" in the Interpretation and General Clauses Ordinance (Cap. 1), would include the Control of Imports Order, 1941, the words "importation" or "importing" are definecl as meaning "the bringing of -goods into or within the Territory" (Le. Kenya) "by sea, air or land from a foreign port". The phra·se "foreign port" is defined as meaning "any place beyond the limits of the Territory or of the Uganda Protectorate or of Tanganyika". It is argued for the appellant that since the car was brought into Kenya from Uganda, it cannot under the above definitions be said to have been brought in from a "foreign port" because "foreign port" (he contends) means by -definition a ,place which is outside the limits .of Kenya and Uganda and Tanganyika, in other words a place which is in none of those three territories.

Now, at first sight, this interpretation of the definition of "foreign port" would seem to overlook the fact that the word used in the definition after "the Territory"' and again after "Uganda Protectorate" is "or" and not "and". The Interpretation and General Clauses Ordinance emphasizes that, unless the context otherwise requires, the word "or" is to be read disjunctively. **A** strictly grammatical reading of the definition of "foreign port" would thus result *in* a place being a foreign port if it lay outside any one of the three territories of Kenya, Uganda .or Tanganyika, so that it would be a foreign port if it was outside Kenya but inside Uganda. Such an interpretation, however, would lead to the result that it would equally well include within the definition of "foreign port" a place which Jay outside Uganda but inside Kenya; which in a Kenya Ordinance would be absurd. The only reasonable interpretation of the definition "foreign port" is that in its context tfie word "or" is not to be read disjunctively but is to be read as "and", so that the phrase means any place beyond the limits of Kenya *and* Uganda *and* Tanganyika, that is to say, a place which is *in* none of the three territories. This interpretation would seem to be borne out by the fact that while in the corresponding Customs Management Ordinance of Uganda the phrase "foreign por.t" is defined in the same terms *(mutatis mutandis)* as in the Kenya Ordinance, it is defined in the Tanganyika Customs Ordinance (Cap. 192 of the Laws of Tanganyika) as "any place beyond the limits of the East African Territories", a definition whose wording is unequivocal. It must be presumed that "foreign port" has the same meaning in the customs legislation of all three territories, which is clearly adapted from a common model.

But this interpretation of "foreign port" is by no ~eans the end of the matter as far as the present case is concerned. **A** perusal of the Customs Management Ordinance and of the Customs Tariff Ordinance and of subsidiary legislation enacted thereunder leads to the strange discovery that nowhere in all that legislation is the term "foreign port" used at all, except in the actual definition of "importation" and "importing" in the former Ordinance, which definition applies (as we have seen) in all the customs 'legislation of Kenya. Those words ar:e defined as meaning •'the bringing -of goods into or within the Territory .by sea, air or land from a for,eign port". But this definition is expressed to apply only "unless there is something in the subject or context repugnant to such construction". Now there is in the Customs Management Ordinance at least one section where the word •"import" or "imported" is used, as a glance at the context clearly shows, with two different meanings; first, as bringing of goods into Kenya not from a foreign port at all, either mediately or immediately, but from Uganda or Tanganyika, and secondly the bringing in of such goods immediately from Uganda or Tanganyika but originally from a foreign port (e.g. the Belgian Congo as in the present). I refer to section 133 of the Ordinance, which reads as follows: $-$

"133. Customs import duties shall not be levied on the following $goods:$

- (a) Goods originating in the Uganda Protectorate or in Tanganyika; - (b) Goods imported into the Territory from the Uganda Protectorate or from Tanganyika on which duty has been paid or importation into the Uganda Protectorate or into Tanganyika..."

In paragraph $(a)$ of section 133 the first of the two meanings which I have suggested is clearly the one applicable, and in paragraph $(b)$ the second. Paragraph (b) is wholly inconsistent with the interpretation which learned counsel for the appellant seeks to place on the expression "imported", for it specifically contemplates that goods may be "imported" into Kenya from Uganda or Tanganyika after having been imported into one of those two territories from somewhere outside them. That is precisely what $\dot{o}$ ccurred in the present case.

Similarly a perusal of the Control of Imports Order, 1941, regulation 2 of which the appellant is said to have contravened, makes it clear to my mind that in the context of that Order the "importation" which regulation 2 prohibits except in accordance with a licence covers a bringing of goods into Kenya directly from Uganda but originally and indirectly from a foreign port, such as some place in the Belgian Congo. In other words the bringing in of the goods from a foreign port neeed not be direct, but can be via Uganda or Tanganyika. This meaning of "importation" in the Control of Imports Order, 1941, is particularly supported by the terms of regulation 5 of that Order, which provides as follows:-

"5. An import licence granted by any competent import control authority appointed by the Government of the Tanganyika Territory or by the Government of the Uganda Protectorate shall have the same force and validity in respect of the importation into the Colony of the goods covered by such licence as if such licence had been granted by the Commissioner of Customs of the Colony."

I would observe at this point that it is not contended for the appellant that an import licence from the Uganda customs authorities, such as is mentioned in regulation 5, had been obtained for the car in the present case.

I accordingly hold that the car in this case was imported into Kenya for the purpose of regulation 2 of the Control of Imports Order, 1941, and of section 216 of the Customs Management Ordinance, and that since no import licence was obtained it was forfeited under the latter section.

One further point remains to be dealt with. In a notice of seizure dated 22nd December, 1952, served on the appellant by the respondent, the car was stated to have been forfeited because it had been "smuggled" into Kenya in contravention of section 216 (a) of the Ordinance. The defendant later, by letter dated $25$ th February, 1953, corrected this and stated that the seizure was for contravention of section 216 $(a)$ and 216 $(b)$ . He has now abandoned altogether the position that there was any "smuggling" under section 216 (a) and he relies, as we have

,seen, solely on a contravention of section 216 (b). It is urged for the appellant that :the respondent must be bound by his original allegation that the seizure was for contravention of paragraph (a) alone and that, since no such contravention was committed, the seizure was unlawful. Now, whatever the position might have .been if the original notice of 22nd December, 1952, bad been a "notice of seizure" required by law to be given by section 196 of the Customs Management Ordinance, the position in this case was that there was no obligation on the defendant to serve such a notice under that section, because it is one of the admitted facts that the plaintiff was present when the car was seized; and in such a case the section provides that no notice shall be necessary. The notice of 22nd December, 1952, was therefore superfluous and legally unnecessary, and the mention in it of paragraph (a) of section 216 cannot be held as estopping the defendant from later relying on parag,raph (b) of the same section.

For the reasons I have given, I hold that the seizure of the plaintiff's car was lawful, and this action is accordingly dismissed with costs ..