BY MUSA OMALE PhD
On the 13th day of May 2020, a Federal High Court sitting in Abuja in the case of KehindeOgunwumiju vs. The NCS, Board & Anor declared null and void the powers of the Nigeria Customs Service to collect duty on goods/personal effects as found in passenger’s baggage. It was the judgment of the court that goods in a passenger’s baggage (provided that the said goods are not intended for sale, barter or exchange and personal and household effects are exempted from import duty under section 8 of the Customs, Excise Tariff, etc ,Consolidation, Act and the 2nd schedule to the Customs, Excise Tariff, etc ,Consolidation, Act. I must state from the onset here that with due respect to the judgment of the court, we submit however, that the court may have misdirected itself in arriving at that judgment. The matter was decided without considering other relevant provisions of the law that gives power to the NCS, to collect duty on such personal effects in a passenger’s baggage. It is very important to read all the relevant laws together before arriving at a decision. This, the learned justice of the court failed to do hence culminating in a ruling that may not stand the test of time on appeal.
For the avoidance of doubt and in order to appreciate the spirit of the provisions of the Customs, Excise Tariff ,CET, referred to, I shall reproduce it thus: the main heading under section 8 reads: Passenger’s baggage. The sub sections then provides:
.Personal and household effects, the property accompanying a passenger.
.Personal and household effects, the property of a passenger landed at any Customs Port, Customers Airport or Customs Station within two months of the arrival of the passenger within such further period as the Minister may allow, to the extent permitted by the Minister and subject to any conditions imposed by it; and
.Personal and household effects excluding jewellery, photographic equipment, electronics and other luxury goods of a citizen of Nigeria who had been resident in a place outside the limits of the jurisdiction of Nigeria for not less than 9 months.
Provided that “baggage” shall not be interpreted to include any vehicle or any goods intended for sale, barter or exchange.
A cursory reading of the above provision underscores the fact that, personal and household effects generally are exempted from import duty but specifically excludes jewellery, photographic equipment, electronics and other luxury goods. The natural interpretation of this exclusion is that they are even though personal effects, but are subject to payment of duty. It is in this desire to collect duty on the excluded personal effects that the concluding provisor therein states that “baggage” shall not be interpreted to include any vehicle or any goods intended for sale, barter or exchange. while it would not be difficult to hold in line with the judgment of the court, that personal effects intended for sale, barter or exchange are subject to payment of duty, it may be difficult to so hold in the case of a vehicle. If we accept the decision of the court, the question then is, would vehicle coming as personal effect also be exempted from the payment of duty. This we submit cannot be desired in view of the need to collect more customs revenue to compliment the dwindling oil revenue, and these often comes from vehicles and other general goods.
The exemption for personal effect not to pay duty is further as provided in sub section (2 above), subject to any other conditions as imposed by the Minister. Without prejudice to afore analysis, the other extant laws that ought to be read together with the CET is hereby brought to fore. To this end, the CET is amplified by the NCS legal notices. Specifically notice No. 12 published as Government Notice No. 701 of 1959 which is parimateriawith the provisions of the CET as quoted. The legal notice however in recognizing the exemptions to non – payment of duty on personal effects provided specifically in section 4 on the mode of collection, which shall be by assessment to wit- Assessment and payment of import duty (if any, this contemplates those exceptions, will be assessed by the proper officer, and the amount to be paid shown on a notice of assessment of duty,(passengers. This notice of assessment must be taken to a cashier, and the duty paid in notes or coin being legal tender in Nigeria or, at the discretion of the officer in charge by cheque drawn on a Nigerian bank, provided it endorsed “commission to drawer’s account”, when necessary. The cashier will issue a baggage receipt for all duties. This is the background and perhaps the authority why duty was collected on the Louis Vuitton laptop bag found in passengers baggage at the NnamdiAzikwe International Airport, Abuja on the 24th June 2019. As submitted earlier the bag comes within the ambit of “other luxury goods” as stated in sub section 3 of section 8 of the CET. The issue of whether it is not for sale, barter or exchange as canvassed by the Plaintiff in the case is immaterial.
In determining what is luxury goods, reference is made to the price of purchase as indicated in the invoice and to which another extent law has provided for the necessary allowable concession to the passenger. The concession which is always made available to returning passengers at the ports is published as notice No. 55 and enabled by government notice no: 1990/70, and is intended to guide the passengers on the concessions granted to them. This particular notice which is in parimateria with the provisions of CET, and notice no: 12 published as government notice no: 701 of 1959, further provides for ground upon which duty can be collected on personal effects. Paragraph (II, of section 2 therein provides that duty would not be collected on unused personal effects the property of a passenger and gifts not exceeding a value of
N50,000.00 (excluding jewellery, photographic equipment, electronic and other luxury goods) and articles which specific concessions have been granted. To my mind the interpretation of this provision is to the effect that duty would not be collected on unused Personal effects that is less than N50,000.00 and those with specific concession as the case may be. It behooves therefore that those personal effects unused and above N50,000.00 in value and having no specific concession are liable to duty payment.
The case of the Plaintiff does not satisfy those exempted from the payment of duty. The Louis Vuitton laptop bag for those that are familiar with it, is a luxury within the meaning of the provisions cited, the value is above
N50,000.00 and having no special concession not to pay duty, is therefore subject to pay and that is why it was so appropriately assessed and collected by the NCS.
Judging from the above submission it is believed that the court may have misdirected itself, and in fact using the words of Akinola Aguda the learned judge allowed himself to be swept off his feet by cold principles of law and justice. He ought to have relied and construe the three relevant laws before arriving at the decision. This is a decision that undermines the powers of the NCS to collect duty on personal effects, which they have been exercising to the advantage of the country. We hope that the judgment will not only be tested at the Court of Appeal but up to the Supreme Court, so that the NCS would have a renewed confidence to perform its statutory duty of revenue generation.
Musa Omale is a serving Deputy Comptroller of Customs