Bike World Limited
(1) The Comptroller of Customs and
(2) The State of
THE COURT OF CIVIL APPEAL OF
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 6th October 2003
Present at the hearing:-
1. This is an appeal from a judgment of the Court of Civil Appeal of Mauritius (
2. The appellants carry on business as importers, distributors and retailers of general goods. In or about November 1995 they imported into
3. Section 25 of the Customs Act 1988 provides that goods shall be subject to the control of Customs, in the case of goods imported, from the time of import until removal for home consumption, or until the time of export, whichever shall first happen. Section 34 of the Act provides that the person entering any goods, whether for himself or on behalf of any importer or exporter, shall deliver to the Comptroller of Customs a bill of entry in respect of those goods in the prescribed form. Rule 4(a) of the Customs Tariff (Classification of Goods) Regulations 1988 provides that the classification of goods for the purposes of the Act shall be determined in accordance with the International Convention on the Harmonized Commodity Description and Coding System and any relevant publications relating to it of the Customs Co-operation Council, which is located in
4. The appellants’ director,
5. The first respondent was of the opinion that, while H S Code 871500 was the appropriate code for baby strollers, the correct code for baby walkers was 940180. This is the H S Code which is entered against the description “Other seats, with metal frames” in chapter 94 of the First Schedule. That chapter deals with furniture and other miscellaneous manufactured articles. The items listed in chapter 94 attract a substantially higher rate of customs duty than those which are listed in chapter 84. That this was the position of the Customs on this matter was already known to
7. Mr Mauthoor continued to believe that baby walkers were correctly classified as 871500, and it is common ground that goods of this description are not expressly mentioned anywhere in the relevant schedule. However, when the bill of entry which he had prepared was scrutinised by the Customs officers, it was rejected by them on the ground that the wrong classification had been entered on it for the baby walkers.
8. The first respondent was of the opinion that, in view of this exchange of correspondence,
10. The appellants then brought proceedings against the respondents in the Supreme Court in which they sought an order for the release to them of the consignment of baby walkers and strollers which the first respondent had detained. They also sought payment by the respondents of the sum of Rs 4,726,833 for the value of the property seized, loss of profit, damages for the adverse effect on importation and loss of consequential profit and moral damages. The respondents lodged a statement of defence denying liability.
11. The case came to trial before
“Notwithstanding the Public Officers Protection Act, where any action has been entered before a court on account of the seizure of any goods, aircraft or ship, or pursuant to any act done by any officer in the execution of his duty under any customs laws and it appears to the court that there was probable cause for such seizure or act, the court shall so declare and thereafter the person who effected the seizure or performed the act shall be immune from all proceedings, whether civil or criminal, on account of such seizure or act.”
“As the evidence shows that the first defendant has acted in good faith and in the absence of any evidence indicating that he was motivated by malice, I find that there was probable cause for the detention of the plaintiff’s goods. Consequently, I uphold the plea in limine litis and set aside the plaintiff’s claim, with costs.”
14. The appellants contended in their appeal to the Court of Civil Appeal that the judge was wrong to uphold the plea in limine as the seizure of their goods was unreasonable, that their constitutional right to the protection of their property under section 8(1) of the Constitution had been violated and that section 150 of the 1988 Act was ultra vires as it violated their constitutional rights to the protection of the law and to the protection of their property. The Court of Appeal observed that
The classification under H S Code of baby walkers
15. As has already been mentioned, goods described as baby walkers are not expressly mentioned anywhere in the classification of goods in the Nomenclature. Part I of Schedule I sets out the general rules for the interpretation of the harmonized system, and in particular the principles by which the classification of goods in the Nomenclature are to be governed. Rule 4 states that goods which cannot be classified in accordance with the rules shall be classified under the heading appropriate to the goods to which they are most akin. Item
16. Item 871500 refers to baby carriages and parts thereof. There is no dispute that baby strollers fall within the description which is given to goods falling under this heading of the Schedule. Baby walkers differ from baby strollers, which are designed to enable people to push babies from place to place. Baby strollers are, in effect, a kind of baby carriage. It is not self-evident that baby walkers are akin to baby carriages. But at first sight
17. As it happens,
18. The first respondent appealed against that decision to the Supreme Court. In Comptroller of Customs v Toys R Us Ltd, 2000 SCJ 330 the Supreme Court (Narayen and Seetulsingh, JJ) dismissed the appeal. The judgment was delivered by
“By no stretch of the imagination can baby walkers be assimilated to furniture and seats. A baby stands and attempts to walk in a baby walker. The latter is not meant to be a seat where parents could leave a baby for long hours. The piece of cloth or other material within the frame of the baby walker as well as the frame itself are intended to help a baby to maintain his balance while learning to walk. The cloth is not supposed to be a seat bottom. In short a baby walker is for a baby to walk in, not to sit on.”
In a final remark he said that when in doubt the Comptroller of Customs seeks the views of the Customs Co-operation Council in
19. The decision of the Tax Appeal Tribunal had already been issued by the time the present case came to trial before
The plea in limine
20. The question to which their Lordships now turn is whether the first respondent is entitled to claim immunity from the appellants’ claim under section 150 of the 1988 Act. Counsel for the appellants said that the plea in limine litis, which was introduced into the case by an amendment at the start of the trial, had taken them by surprise and Mr Ramdhun submitted that they ought to have been given time to prepare their evidence in reply to it. But the record shows that no request for more time was made to the trial judge, and that when he was given the opportunity
21. Section 150 of the 1988 Act provides protection to an officer who seizes any goods or performs any act in the execution of his duty under any customs laws. The protection is available if it appears to the court that there was probable cause for such seizure or act. If the court is of that opinion, it shall so declare, and the person who effected the seizure or performed the act shall be immune from all proceedings on account of it. This analysis of the section shows that, if it is to apply, two things must be established by the evidence. First, the officer must have effected a “seizure” or have done an “act” in the execution of his duty under any customs laws. Secondly, he must have had “probable cause” for the seizure or the act, as the case may be.
22. As to the first point, section 151(1)(a) of the Act provides that an officer (who is defined in section 2 of the Act as including any person employed in the service of Customs) may seize goods imported into Mauritius in relation to which an offence under the customs laws is reasonably suspected to have been committed by any person. Section 143 of the Act provides that, where any goods have been seized under the Act, the Comptroller shall serve notice in writing of the seizure and the cause thereof to the owner of the goods or his agent. Various consequences provided for by the Act may then follow. In this case however no notice was served on the appellants that their goods had been seized. When he was asked whether such a notice had been issued the first respondent’s witness replied: “No, my Lord, because we never seized. But we detained the goods”. The finding by the trial judge was that the first respondent had caused the goods to be detained.
23. The question then is whether it was shown by the evidence that the goods were detained by an officer in the execution of his duty under any customs laws.
24. Their Lordships do not need to decide the issue as to whether section 17 of the Act provided statutory authority for the detention which occurred in this case as there is no evidence that, following his initial examination of them and his rejection of the bill of entry which accompanied them, the first respondent was continuing to detain the goods for any of the purposes set out in section 17. The only reason which he gave for continuing to detain the goods was that the appellants had committed an offence under section 158 of the Customs Act. But the only act which the officer is authorised by the Act to do where he reasonably suspects that an offence has been committed is to seize the goods, and it is accepted that there was no seizure in this case. The Court of Appeal were careful also not to proceed on the basis that the appellants had committed an offence. They said that there was undisputed evidence that the first respondent detained the goods in the course of an inquiry. That is so. But any such inquiry was over and done with by
25. Then there is the question whether it was open to the court to hold that there was “probable cause” for the detention. These words are very familiar. They indicate that the court must apply an objective test to the evidence. It is not sufficient that the officer thought that he had probable cause. The court must be satisfied that there was in fact probable cause for the act which he did. The first respondent’s case is that the officer who detained the goods had reason to suspect that the appellants had committed an offence under section 158(3)(b) of the Act. This was because, as he stated in his letter to the appellants dated
27. But the most compelling answer to the submission that the tariff for the baby walkers was mis-stated by
28. The proper course for the first respondent to have adopted in these circumstances was to accept the amended bill of entry which Mr Mauthoor tendered showing that the H S Code for the baby walkers was 940180, and allow him to pay the higher rate of duty under protest so that he could take the matter to appeal. As it is, the first respondent embarked upon a course of conduct for which there was no probable cause. The protection which section 150 of the Act provides is not available to the respondents in these circumstances, and trial judge was wrong to uphold the plea in limine.
29. Their Lordships do not need to deal with the other arguments which were advanced by counsel for the appellants in support of the appeal, except to say that it does not follow from the conclusion which they have reached that the course of action on which the first respondent embarked was without probable cause that the derogation in section 8(4)(vii) of the Constitution from the right not to be deprived of one’s property in respect of acts done under the authority of the law does not apply in this case. But the evidence which has been led so far falls short of what would be needed to bring the case within that derogation. The first respondent refrained from seizing the goods, and he has not demonstrated that he had lawful authority for their detention once Mr Mauthoor had indicated by tendering an amended bill of entry that he was willing, albeit under protest, to pay the higher rate of duty which was payable on the baby walkers on the first respondent’s view as to how they should be classified.
30. For these reasons their Lordships will allow the appeal, set aside the judgment of