IN THE HIGH COURT OF LESOTHO
In the appeal of'
OFFICER COMMANDING POLICE BUTHA-BUTHE 1st Appellant
OFFICER COMMANDING C.I.D. BUTHA-BUTHE 2nd Appellant
CUSTOMS & EXCISE MASERU 3rd Appellant
THE ATTORNEY GENERAL 4th Appellant
JEREMIAH L. MPAKA Respondent
Delivered by the Hon. Mr Justice Sir Peter Allen on the 25th day of March, 1988
This is an appeal against the judgment of a resident magistrate at Butha-Buthe on 1 August 1986 in an application brought before him by the present respondent.
The respondent apparently owns a restaurant/ liquor store at Marakabei's in Butha-Buthe District. On 15 May 1986 a vehicle was off-loading liquor at the store. The contents of the vehicle were 350 cases of beer and 404 cases of espirlt'(wine). Captain Horoto of the Butha-Buthe police alleged that he saw-this and was suspicious that the liquor had been imported without payment of customs-duty. Apparently acting in accordance with his powers under section 5 of the Customs & Excise Act, 1982, Captain Horoto seized the vehicle and contents and took them to the police station. He later released the vehicle but retained the liquor. It was not explained why the vehicle was released nor why no charges were preferred.
The Director of Customs issued a "Notice of Seizure" on 6 June 1986 describing the goods and informery anyone concerned that disposal of them under the Act would be delayed for one month so as to give time for any representations that anyone concerned might wish to make
Instead the respondent ignored this procedure and filed an application in the Resident Magistrate's court for an order releasing the liquor to him (the respondent). The magistrate heard and disposed of the application on 1 August 1986 unfortunately without apparently taking time to consider the matter very carefully.
In that court counsel for the respondents (now the applicants) first raised a preliminary objection that the court had no jurisdiction to entertain the application since the value of the liquor claimed was greater than the magistrate's jurisdrictional limit of M.2,000. An earlier case was cited. Counsel for the applicant (now respondent argued that the earlier case referred to motor vehicles and so it could not be applied to a case concerning other property.
To me that sounds like the sort of submission which is based either on ignorance or a desire to mislead the court. It should have been ignored However, without giving any reasons at all, the magistrate ruled that ha did have jurisdiction
But matters of jurisdiction are of fundamental importance to the court and should not be treated lightly. If the goods claimed were valued at over M.2,000 then the magistrate ought to have declined to entertain the application and it should then have been struck out
It appears that counsel for the then respondents produced a document purporting to value the liquor, but this was objected to because it was not accompanied by an affidavit Apparently the magistrate accepted the objection and ruled that he bad jurisdiction without any further investigation into the matter
This was not correct procedure. It may be that a relevant document in an ordinary application can be so discarded for lack of a supporting affidavit, but matters of jurisdiction more closely affect the court rather than the parties. The court can examine any document pertaining to its jurisdiction. If doubts are then raised the court can adjourn to allow an affidavit in support to be lodged if it is required But jurisdictional matters are too fundamental and important to be brushed aside because of mere procedural defects.
As it is there is nothing on the lower court record, one way or the other, upon which a decision regarding jurisdiction can properly be taken On the face of it, though, it does seem to me very likely that 754 cases of liquor would be valued considerabily above the maximum jurisdiction of a resident magistrate (M 2,000) but, without the facts, no definite decision is possible.
The lower court file and that of this Court both contain quite a lot of papers but, unfortunately, very little useful information For instance, the present respondent, in his application for the release of the liquor, supplied lengthy founding and replying affidavits, both of which omitted to mention anything at all about how he came into possession of the liquor and whether he had
paid any duty on it. Instead he confined himself to denying that the liquor was imported illegally, which was a negative statement of no real assistance to the court or to him.
A person in innocent and lawful posession would naturally explain how he obtained the goods and be ready to show documentary proof that he had paid any relevant duty on them. Indeed he would be expected to do so. In my view the affidavits of Mr Mpaka tend to raise more suspicions against himself rather than providing support for his claim.
Mr Teele for the respondent submitted that the onus was on the appellant to prove that the respondent was not the owner or that he had not paid the duty. This is not so at all. For example, section 80(1)(c) of the Customs & Excise Act 1982 provides that.
Any person who refuses or fails to comply with the lawful requirements of an officer or refuses or fails to answer to the best of his power any question which an officer in the exercise of his functions has put to him, shall be guilty of an offence
and section 85(1). Any person who makes a false statement in connection with any matter dealt with in this Act, or who makes use for the purposes of this Act of a declaration or document containing any such statement shall unless he proves that he was ignorant of the falsity of such statement and that such ignorance was not due to
negligence on his part, be guilty of an offence ......etc (my underlining)
These are just two of numerous examples from the Act in which the onus is placed on the person concerned to supply information, to answer questions truthfully and so on.
So, when the respondent was asked whether import duty had been paid on the liquor he was lawfully required to answer truthfully and to provide documentary proof in support of his statements. The same applied when he brought the matter to court. It was for him to show that his goods had been unlawfully seized by producing the documentary or other evidence that any import duty had been paid and any other customs requirements had been complied with. Apart from the clear requirement of the Act, there was also the fact that he was the one who made the application to the lower court, so it was up to him to prove and support his claim. It was not proper for him merely to say, they seized my goods unlawfully, and then to sit back and leave it to the appellants to try and prove otherwise.
If the goods were seized unlawfully why did the respondent not simply go to the customs officer and produce the relevant documents and ask him to arrange with the police to hand over the goods? Why come to court about it, unless of course the customs had then refused to release the goods?
The magistrate ought to have looked into these matters and to have required answers to the relevant
questions Similarly the police should have been required to explain the grounds of their suspicion and what questions they had asked the respondent, and what documents, if any, were produced to them. The court should have been informed how much duty was payable by the respondent. None of this information appears in the affidavits which, as I have pointed out, were inadequate. Therefore the magistrate could, and should, have required oral evidence to be given As it is, the failure to rectify all these inadequancies in the lower court leaves this Court with insufficient vital information.
On top of this the matter of the jurisdiction of the lower court was not properly decided, and cannot be now again due to lack of necessary information Apparently the cases of liquor were handed back to the respondent as a result of the lower court's decision This was in 1986 and, no doubt, the goods have long since been sold and consumed There is no way that they can now be recovered or dealt with or inspected
Mr. Putsoane for the appellants submitted that the magistrate erred in realising the liquor after an appeal against his order had been noted He cited South Cape Corporation (Pty) Ltd v Engineering Management (Pty)Ltd 1977(3)534 (A.D.) in which it was held on appeal that the accepted common law rule of practice is that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with leave of the court which granted the judgment A party
would have to make special application for such leave. The object of this procedure is said to be to prevent irreparable damage from being done to the intending appellant. But what about the interests of the successful decree-holder?
Presumably, in the absence of any provisions in this respect in our present very inadequate High Court Rules, the common law rule is to be followed. Personally I much prefer the procedure followed in other places whereby the holder of a judgment decree can proceed to execute it unless the appellant succeeds, within time, in obtaining an order of stay of execution, after first satisfying the court that an appeal has in fact been lodged. The appeal must then be prosecuted without unnecessary delay. This is to prevent an appellant from trying to frustrate the execution of a decree against him for a very long period by taking no steps to prosecute his appeal after obtaining such a stay.
One solution to the various insufficiencies and inadequacies in the present case before the lower court would be to order a hearing de novo. Regrettably this is now impractical. Too much time has passed. The goods have disappeared. There is no evidence of their value or of what duty was payable and the police enquiries were generally incomplete. As a consequence of this, and the unsatisfactory nature of the hearing in the lower court, it is now far too late to rectify the situation satisfactorily, and it would serve no practical purpose to set aside the lower court order.
The various authorities concerned will have to write it off to experience and try to ensure that correct procedures both outside and in Court are followed in future.
Accordingly this appeal is dismissed. I have already set out why I find that both parties failed to act properly or satisfactorily both before and during the lower court action, consequently I shall make no order for costs.
P. A. P. J. ALLEN
25 March 1988
Mr Putsoane for appellants
Mr Teele for respondent
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