Ouedraogo v S (CM/0106/2023) [2024] GHAHC 533 (19 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, STATE AGENCY AND DEBT RECOVERY COURT SITTING IN FINANCIAL & ECONOMIC CRIME DIVISION 1 SITTING IN GENERAL JURISDICTION 14 HELD IN ACCRA ON TUESDAY THE 19TH DAY OF NOVEMBER, 2024 BEFORE HIS LORDSHIP JUSTICE DR. ERNEST OWUSU-DAPAA JA SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO: CM/0106/2023 OUEDRAOGO HAMED PLAINTIFF VRS GHANA REVENUE AUTHORITY DEFENDANT PARTIES: PLAINTIFF’S LAWFUL ATTORNEY – PRESENT DEFENDANT – ABSENT COUNSEL: DAVID BONDORIN HOLDING THE BRIEF OF ERIC ASUMAN- ADU FOR THE PLAINTIFF – PRESENT JOYCE AMPAH WITH EMMA OTOO FOR THE DEFENDANT – PRESENT JUDGMENT INTRODUCTION [1] By a Writ of Summons Plaintiff caused to be issued against Defendant on 10th November, 2022, he sought the following reliefs against the Defendant; 1 a. An order directed at the Defendant to pay to Plaintiff an amount of USD88,932 for a container of TEXTILES being the full COST and FREIGHT value of the consignment in Transit certified by the China Chamber of International Commence which were wrongfully sold by the Defendant. b. Interest on the State Ware House Rent received by Defendant from Plaintiff from 14/07/2022 until final date of judgment of this suit. c. Interest on the said amount of USD$88,932.00 from 12th day of August, 2022 at the prevailing bank rate till date of final payment. d. General Damages for wrongful auction of container Number PCIU2933643. Parties’ Case through their Pleadings [2] The Case for each party as reflected in their pleadings will be summarized here to provide context against which issues and evidence will be considered. Plaintiff’s Case [3] The Plaintiff, Ouedraogo Hamed, through his lawful attorney, claims that his container of textiles (Container No. PCIU2933643) was wrongfully auctioned by the Defendant, Ghana Revenue Authority (GRA). He asserts that the consignment, valued at $88,932.00, was in transit to Burkina Faso through Tema Port, with the cost certified by the China Chamber of International Commerce. He alleges the Defendant acted improperly by changing the transit status of his goods to “Home Consumption” and selling them without his knowledge or issuance of a seizure notice, which he contends is required under Ghana’s Customs Act, 2015 (Act 891). [4] The Plaintiff avers that despite paying necessary warehouse fees and other charges, the Defendant auctioned the container without observing the procedures for seizure and confiscation. According to the Plaintiff, no notice of seizure or confiscation was issued, and this denied him the chance to challenge the seizure or reclaim the goods. The Plaintiff claims the Defendant failed to observe the proper duty of care in managing the transit 2 consignment which led to the wrongful auction, and that he has suffered financial loss as a result. Consequently, he seeks an order for the Defendant to pay him the value of the goods, interest on warehouse rent, interest on the cost of the consignment from August 12, 2022 and general damages for the wrongful auction. Defendant’s Case [5] The Defendant, Ghana Revenue Authority, generally denies the Plaintiff’s claims and assert a contrario that the Plaintiff failed to adhere to customs regulations governing transit goods. The Defendant contends that the container arrived on January 2, 2022, and after remaining unprocessed, it was placed on the Unclaimed Cargo List (UCL) on March 4, 2022. The Defendant averred further that the Plaintiff neglected his obligation to transit the goods and this resulted in the goods being deemed abandoned and subsequently confiscated to the State. [6] The Defendant avers that while the Plaintiff did eventually process a Bill of Entry on June 8, 2022, this action was late and inadequate to prevent forfeiture. They further assert that they gazetted the container for auction on July 4, 2022, and conducted a lawful auction on 22nd July, 2022, which was won by a bidder named Gafaru Gado. [7] The Defendant also argues that the Plaintiff had a licensed agent in Ghana to handle transit requirements and communications and, therefore, the Plaintiff’s claims of non- notification are baseless. Ultimately, the Defendant maintains that all actions were carried out according to laid-down procedures, and they request that the court dismiss the Plaintiff's claims. ISSUES SET DOWN FOR TRIAL [8] At the close of pleadings pre-trial was attempted but same was unsuccessful so the following issues were adopted for trial: I. Whether or not the Plaintiff’s containers were auctioned in accordance with law. 3 II. Whether or not container number PCIU2933643 was abandoned by Plaintiff. III. Whether or not Plaintiff took steps to transit container numbered PCIU2933643 after restoration had been granted. IV. Whether or not Defendant was mandated to give Plaintiff a written notice of seizure after the goods had been seized before auctioning same. V. Whether or not the acceptance of payment of duty on 14th July, 2022 by Defendant amount to the said goods having been entered under another customs procedure. VI. Whether or not the 14 days given to transit the container lapsed before Defendant auctioned container number PCIU2933643. VII. Whether or not the Plaintiff transacted his customs business through a licensed custom House Agent. THE LAW ON BURDEN OF PROOF AND ITS ALLOCATION TO THE PARTIES [9] In civil litigation, the standard of proof is the preponderance of probabilities. This standard requires the tribunal or court to be convinced that the existence of a fact is more probable than its non-existence. This standard and its application are enshrined in the Evidence Act, 1975, NRCD 323, specifically in sections 10, 11 and 12, which define the elements of burden of proof, burden of persuasion, and burden of producing evidence. Section 10 establishes the "burden of persuasion," which is the obligation on a party to create the requisite degree of belief about a fact in the mind of the court. This burden may require a party to either raise a reasonable doubt about a fact or establish the fact by a preponderance of probabilities or beyond a reasonable doubt. Section 11 discusses the "burden of producing evidence," and imposes the responsibility on a party to introduce enough evidence to avoid a ruling against the party on an issue. Section 12(1) asserts that, in civil cases, the burden of persuasion generally requires proof by a preponderance of the 4 probabilities. Section 12(2) further clarifies that this preponderance is the degree of certainty needed in the mind of the court to conclude that a fact’s existence is more likely than not. [10] In Ackah v Pergah Transport Ltd [2010] SCGLR 728 at 736, Adinyira JSC underscored this principle, noting, "It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce credible evidence of the facts in issue. Without such credible evidence, the claim may fail." This sentiment is echoed in Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721, where the court reiterated essentially that matters capable of proof must indeed be proven with adequate evidence. [11] It is trite law that the Plaintiff carries the initial evidential burden of establishing facts crucial to the reliefs sought. S.A. Brobbey, in Essentials of Ghana Law of Evidence (p. 28), illuminates this point: "In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should start the proceedings by giving testimony. That testimony will show what he wants from the defendant and why the court should order the defendant to give it to him." [12] Brobbey J.A., in Duah v Yorkwa [1993-94] 1 GLR 217, further distinguishes the burden of persuasion from the burden of producing evidence, noting that the former is the degree of evidence a litigant must adduce to satisfy a fact, while the latter pertains to which party must begin by leading evidence. [13] The burden on the Plaintiff to establish his case by a preponderance of probabilities means the Plaintiff must produce sufficient evidence to make their claim more probable than the Defendant’s version. This principle was restated by Ansah JSC in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 900: “This being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence 5 Act, 1975 (NRCD 323). The party in whose favour the balance tilts is the party whose case is more probable among the rival versions.” [14] The rule is further clarified by Lord Hoffman in Re B [2008] UKHL 3, where he explained the binary nature of fact-finding in litigation. In his view, a tribunal must decide if a fact did or did not occur, leaving no room for ambiguity. The law sets a “0 or 1” value on a fact's existence, making it clear that if a party fails to satisfy their burden of proof, the fact is treated as if it did not happen. For the fear of diluting the wisdom of Lord Hoffman’s dictum in Re B, it is worth quoting his own words here: If a legal rule requires a fact to be proved (a fact in issue) a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are O and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carried the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of O is returned and the fact is treated as having not happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.” Summary of Plaintiff’s Evidence [15] Kennedy Mends, a Clearing Agent Assistant and Lawful Attorney for the Plaintiff, testified that the Plaintiff’s consignment of textiles in container No. PCIU2933643 was in transit to Burkina Faso and arrived at Tema Port on January 2, 2022. The goods, valued at $88,932.00, were intended for transport to Burkina Faso but incurred delays due to financial constraints, leading to demurrage charges, for which a waiver was granted. [16] Mends explained that according to customs regulations, the consignment was to be processed for transit within seven days of arrival at the port. However, the Defendant placed the container on the Uncleared Container List (UCL) when it was not cleared on time and ultimately auctioned it, allegedly sidestepping the mandatory procedure of keeping the goods in a customs warehouse prior to auction. 6 [17] The Plaintiff applied for restoration of the consignment on June 7, 2022, which was granted, and filed a Bill of Entry on June 8. Although bond charges and other fees were paid on July 14, 2022, the Defendant auctioned the container on July 22, prior to the Plaintiff’s 14-day period for payment of duties expiring on July 28, 2022. [18] Mends, PW1, asserted that the Defendant unlawfully changed the transit status of the goods to "Home Consumption," allowing the auction to proceed without notifying the Plaintiff or issuing a seizure notice. He argued that proper procedure, including issuance of a seizure notice, was ignored, and this deprived the Plaintiff of the opportunity to reclaim the goods. Mends contended that the Defendant could only confiscate goods deemed uncustomed, forfeited, prohibited, or restricted, which he claims was not applicable in this case. In support of Plaintiff’s case PW1 tendered: Exhibit A (Power of Attorney), Exhibit B (Commercial Invoice dated 21/11/2021), Exhibit B1 (Invoice dated 5/1/2022), Exhibit C (Waiver Letter dated 13/6/2022), Exhibit D (UCL Auction Container Release dated 8/8/2022), Exhibit D1 (Auction Allocation Slip), Exhibits E, E1 and E2 (copies of processing history Bill of Entry Declaration, Bond Charges and Payment of State Warehouse rent penalty), Exhibit F (Declaration) Bill of Entry dated 8/6/2022. [19]. During the cross-examination of Plaintiff’s attorney by Counsel for Defendant, several key points were addressed that shed light on the intricacies of the case. Regarding his role and authority, Mr. Mends confirmed that he is a Clearing Agent Assistant who occasionally works with Rolander Company Limited, although he is not officially employed by them. Acting as the lawful attorney of the Plaintiff, he is fully authorized to represent and act on behalf of Mr. Ouedraogo Hamed. While Banner Services Limited was identified as the declarant and the licensed clearing agent who interacted directly with the Defendant's system for this transaction, PW1, Mr. Mends, acknowledged that he was kept informed of all activities due to his role as the Plaintiff's representative. This close 7 communication ensured that he was aware of all developments concerning the consignment. [20] On the matter of customs procedures and timelines, he explained that upon the arrival of goods at the port, there is a strict seven-day period within which a declaration must be filed and all necessary customs procedures completed. If the goods are not cleared within this initial period, they may be deposited in a state warehouse for up to 14 additional days. This process results in a total statutory period of 21 days for the goods to be transferred or delivered from the customs-controlled area. He acknowledged that the container in question arrived on January 2, 2022. However, due to financial constraints, the Plaintiff was unable to clear it within the stipulated time, leading to delays. [21] An application for restoration of the goods was made on June 7, 2022, and it was granted by the Defendant on the same day. According to customs laws, he stated that there is no precise time frame within which payments must be made after such a restoration is granted. Subsequently, the necessary charges, including bond charges and state warehouse rent, were paid on July 14, 2022. Following this payment, an examination officer named Ms. Janet Amegashie Abla was assigned to the consignment, indicating the Defendant's acceptance of the process moving forward. [22] A significant point of contention arose concerning the dispute over timing and auctioning of the goods. Mr. Mends argued that after paying the necessary charges on July 14, 2022, the Plaintiff had a period of 14 days, ending on July 28, 2022, to deliver the goods from the customs-controlled area. Contrary to this, the Defendant auctioned the goods on July 22, 2022, six days before the expiration of this period. He asserted that the Defendant failed to issue a notice of seizure, which is a legal prerequisite for transferring custody of uncustomed goods from the owner to the authority. Without such notice, he contended, the Defendant could not lawfully auction the goods, rendering the auction improper and procedurally flawed. 8 [23] Regarding the waiver of demurrage charges, he confirmed that an application for a waiver was made to the shipping line and was granted. Although he could not produce a physical copy of the waiver approval, he explained that the shipping line's system handles waivers electronically without issuing physical documents. He acknowledged that the initial waivers were insufficient, this necessitated a re-application to secure a more substantial waiver that would alleviate the financial burden and allow for the clearance of the goods. [24] In terms of payment and duties, PW1 stated that the consignment was under a bond without the payment of duty, in accordance with international transit conventions. He maintained that the goods were only liable for duties if they were entered under another customs procedure after restoration. Since the payments were made on July 14, 2022, he believed that the 14-day period for any potential forfeiture should commence from that date, giving the Plaintiff until July 28, 2022, to act accordingly. [25] When discussing Exhibit D and internal communications, PW1 identified Exhibit D as a document from the Defendant to the Director of Ports at the Ghana Ports and Harbours Authority (GPHA), concerning the release of the container from the Uncleared Cargo List (UCL) for auction. Despite being an internal document, he obtained it from the GPHA because it directly pertained to the container in question. He asserted that the absence of a signature on the document did not diminish its relevance or authenticity, as it provided critical information about the Defendant's actions regarding the consignment. [26] Finally, addressing the procedural irregularities, he argued that the Defendant failed to adhere to its own established procedures by not issuing a notice of seizure to the Plaintiff. He emphasized that, according to customs laws and regulations, the Defendant could not lawfully auction the goods without first seizing them through proper legal channels and providing appropriate notice to the owner. He contended that the Defendant intentionally altered the transit status of the consignment to facilitate an expedited 9 auction, bypassing mandatory procedures designed to protect the rights of importers and exporters. Summary of Defendant’s Evidence [27] Mr. Gilbert Bannason Pobee, a Revenue Officer with the Ghana Revenue Authority (GRA), testified on behalf of the Defendant. Mr. Pobee is currently assigned to the Valuation and Classification Unit at the Customs Division's headquarters. At the time relevant to the case, he was working at the Auction Unit, which provided him with direct knowledge of the events in question. [28] In his witness statement, Mr. Pobee recounted that the Plaintiff shipped a 20-foot container, numbered PCIU2933649, under Bill of Lading TAPQ10258000. The container contained 313 bales of textiles and was intended for transit to Burkina Faso through the Port of Tema. The container arrived at the port in January 2022. According to customs procedures for transit goods, the Plaintiff was required to export the container out of the country within 14 days of its arrival. However, the Plaintiff failed to do so within this stipulated period. [29] After 21 days without receiving a transit request from the Plaintiff, the Defendant placed the container on the Uncleared Cargo List (UCL) on March 4, 2022. Under the customs processes, transit containers not exported within the prescribed time are considered abandoned and confiscated, and they are subsequently transferred to the State warehouse. Mr. Pobee emphasized that the Defendant is mandated by law to dispose of such abandoned and confiscated containers through approved processes and is not permitted to purchase transit containers. Seizure is only applicable if there is suspicion of explosives or prohibited goods, which was not the case here. [30] On June 7, 2022, five months after the container's arrival and after it had been confiscated, the Plaintiff, through its representative Banner Services Limited, requested restoration of the container. The Defendant granted this request on the same day to enable 10 the Plaintiff to export the container. The Plaintiff then passed a Bill of Entry dated June 8, 2022, under the transit procedure to facilitate the export. Despite this restoration, the container remained at the Port of Tema for an additional 25 days. [31] Consequently, on July 4, 2022, the Defendant gazetted the container in the Commercial and Industrial Bulletin No. 20, to signal its intention to dispose of the goods by public auction. According to Mr. Pobee, the gazette serves as notice to the entire world, and the Defendant is under no obligation to notify the Plaintiff personally beyond this publication. The container was subsequently auctioned on July 22, 2022, to Mr. Gafaru Gado, who was issued auction allocation slip number 0321239. Mr. Gado proceeded to pass a Bill of Entry for home use and paid duties and taxes amounting to GHC108,021.04 on August 8, 2022. [32] In his conclusion, Mr. Pobee asserted that the Defendant lawfully disposed of the container after the Plaintiff failed to export it within the prescribed time. He contended that the Plaintiff is not entitled to any of the reliefs being sought, as the Defendant adhered to all legal procedures in handling the situation. [33] During cross-examination, further details emerged that shed light on the dispute between the parties. Mr. Pobee confirmed his previous role at the Auction Unit and his familiarity with the case due to his involvement. He reiterated that the container arrived in January 2022 and that the Plaintiff was required to ensure the goods exited Ghana within 21 days, which involves filing a Bill of Entry, paying any necessary duties, clearing the goods from the port, and physically exporting them out of the country. [34] When questioned about whether the Plaintiff complied with these requirements, he acknowledged that the Plaintiff eventually filed a Bill of Entry on June 8, 2022, but did so well beyond the stipulated time. Prior to this, the Plaintiff had breached customs procedures by not exporting the container within the required timeframe. The Plaintiff's counsel suggested that by paying certain fees and charges, the Plaintiff had regularized 11 the status of the container. However, Mr. Pobee clarified that the payments made were for processing fees and rental charges due to the container overstaying at the port, not customs duties. He explained that for transit goods, duties are assessed but suspended, and the Plaintiff did not pay any customs duties because the goods were intended for transit. [35] Regarding the issuance of a seizure notice, Mr. Pobee explained that the Defendant did not issue a physical seizure notice to the Plaintiff due to the nature of transit goods and the fact that the Plaintiff was outside the country. Instead, the container was gazetted, which serves as a public notice of seizure and intent to auction. He emphasized that the Plaintiff was aware of the seizure, as evidenced by their application for restoration, and that the gazette serves as adequate notice under the circumstances. [36] The cross-examination also probed into the timing of the restoration and subsequent actions. The Plaintiff's counsel argued that after the restoration on June 7, 2022, the Plaintiff was assigned a customs officer for inspection and had 14 days to export the container, which suggested that the Defendant auctioned the container before this period had expired. In response, Mr. Pobee disagreed with this assertion, stated that the extension period depends on the approval date of the restoration, not the date of system activity or inspection assignment. He maintained that the Plaintiff failed to utilize the extension period granted and that due process was followed in the auctioning of the container. [37] When pressed on whether the Defendant had followed its own procedures in auctioning the container, particularly concerning the issuance of a seizure notice and the timing of the auction, Mr. Pobee insisted that all actions were in line with established procedures. He explained that the Commissioner General has the discretion to auction goods without personal notification when owners fail to comply within stipulated times, especially when the goods are perishable or when the owners are not present in the country. He reiterated that the Defendant had lawfully exercised this discretion and that the Plaintiff was given sufficient opportunity to act but failed to do so. 12 [38] The Plaintiff's counsel contended that the Defendant failed in its duty of care by not properly notifying the Plaintiff and by auctioning the goods prematurely. They argued that the Plaintiff was entitled to relief due to the Defendant's contravention of its own procedures. However, Mr. Pobee refuted these claims and maintained that the Defendant adhered to all legal requirements and that the Plaintiff was not entitled to any of the reliefs sought. Analysis of Issues Issues 1, 2, and 6: Whether or not the Plaintiff's container, CONTAINER NUMBER PCIU2933643 was auctioned in accordance with the law; whether or not CONTAINER NUMBER PCIU2933643 was abandoned; and whether or not the fourteen (14) days given to transit the container lapsed before the Defendant auctioned CONTAINER NUMBER PCIU2933643. [39] The Plaintiff contends that the Defendant did not follow the proper procedures before auctioning the container. Specifically, the Plaintiff argues first that the container was in transit and not subject to customs duties; and contended that after restoration was granted on 7th June 2022, the Defendant auctioned the container before the 14-day period had lapsed. Counsel for Plaintiff submitted further that the Defendant failed to provide a written notice of seizure, which is a condition precedent for the auction. [40] In her written address, Counsel for Defendant maintained that the Plaintiff failed to transit the container within the stipulated 14 days after arrival. Thus, after 21 days without any transit request from the Plaintiff, the container was placed on the UCL on 4th March, 2022. Counsel for Defendant submitted that the container was deemed abandoned and confiscated to the state under Regulation 117(6) of the Customs Regulations, 2016 (L.I. 2248). Counsel conceded that the Plaintiff applied for restoration on 7th June 2022 but contended strenuously that he again failed to transit the container within the required 14- 13 day period after restoration. Consequently, the container was lawfully auctioned after being gazetted, following all necessary procedures. Court’s Analysis [41] Regulation 117(6) of the Customs Regulations, 2016 (L.I. 2248) states: "Where goods in transit are not exported or declared under a customs procedure within the required time, the goods shall be treated as abandoned and confiscated to the State." Section 53(1)(a)(b) of the Customs Act, 2015 (Act 891) provides: "(1) Where goods imported are not delivered from a customs-controlled area (a) Within seven days after final discharge, or (b) Within further period as the Commissioner-General may in special circumstances allow, a proper officer may deposit the goods in a State warehouse for a period of not more than fourteen days." Section 47 (1), (2) (a) and (b) of the Revenue Administration Act, Act 915 further provides: (1) A taxpayer may apply, in writing, to the Commissioner-General for an extension of time to pay tax under a tax law. (2) On receipt of an application under subsection (1), the Commissioner-General may, where good cause is shown, (a) extend the date on which the tax or part of the tax is payable on the terms and conditions that the Commissioner-General considers appropriate including the deposit of security; (b) notify the applicant in writing of the decision" 14 [42] From evidence adduced at the trial I make the following findings. The container arrived at the Tema Port on 2nd January 2022. Under the transit procedure, the Plaintiff was required to transit the container within 14 days of arrival but failed to do so. After 21 days without any action from the Plaintiff, the Defendant placed the container on the UCL on 4th March 2022. The Plaintiff applied for restoration on 7th June 2022, which was granted. However, the Plaintiff was required to transit the container within 14 days after restoration, starting from the date of filing the customs declaration on 8th June 2022. The Plaintiff failed to make the necessary payments and transit the container within this 14-day period. Payments were only made on 14th July 2022, over a month after the declaration was filed. The Defendant gazetted the container on 4th July 2022 in the Commercial and Industrial Bulletin No. 20, which serves as public notice of the intention to auction the goods. The container was auctioned on 22nd July 2022, after the Plaintiff had failed to act within the required time frames. [43] In the circumstances the court holds that the Plaintiff's container was lawfully deemed abandoned and confiscated to the state due to non-compliance with the stipulated time frames. The Defendant lawfully auctioned the container following the necessary procedures, including gazetting the goods before auction. Before leaving this issue, I deem it necessary to comment on an erroneous impression learned counsel for Plaintiff created in his written address. [44] The Plaintiff contends misleadingly that before the Defendant could lawfully auction the goods under Section 126 of the Customs Act, 2015 (Act 891), the goods must have been properly seized and forfeited in accordance with the law, including the provision of a written notice of seizure to the owner. Section 126 of Act 891 pertains to the disposal of uncustomed goods that have been seized. However, in this case, the 15 goods were not seized due to a customs offense but were deemed abandoned and confiscated under Regulation 117(6) of the Customs Regulations, 2016 (L.I. 2248). Consequently Section 126 of Act 891 was not applicable. [45] Seizure under the Act implies that goods have been taken due to a violation of customs laws (e.g., smuggling, prohibited goods). Abandonment occurs when the owner fails to take necessary actions within stipulated time frames, which results in the goods being treated as property of the state. Consequently, since the goods were not seized under Section 124 but were deemed abandoned under Regulation 117(6), the requirement to issue a written notice of seizure does not apply. Counsel added that the required time is not clearly defined in Regulation 117(6), making it ambiguous when goods can be deemed abandoned. [46] While Regulation 117(6) states that goods not exported or declared within the required time are treated as abandoned, Sections 49 and 53 of Act 891 provide specific time frames. Section 49(1)(b) provides that a declaration must be filed within seven working days from the date of final discharge of the goods. Section 53(1) stipulates that Goods not delivered within seven days after final discharge may be deposited in a state warehouse for a period of not more than fourteen days. Thus, the Plaintiff had a total of 21 days (7 days initial period plus 14 days in the state warehouse) to act before the goods were considered for abandonment. It is therefore misleading for learned counsel for Plaintiff to contend that there is no time frame prescribed regarding goods deemed abandoned. The Plaintiff failed to act within these established time frames and that provide justification for the Defendant's treatment of the goods as abandoned. [47] Counsel for Plaintiff further erroneously contended that by granting restoration under Section 125(1) of Act 891, the Defendant nullified any prior abandonment or confiscation status, and the goods could no longer be sold unless they violated another customs procedure. 16 It is pertinent to stress that Restoration provides the owner an opportunity to comply with customs procedures within a new stipulated time frame. It does not permanently nullify the status of abandonment if the owner fails to act within this extended period. Thus, after restoration on 7th June 2022, the Plaintiff was required to transit the goods within 14 days. The Plaintiff again failed to meet this deadline, making the goods subject to abandonment once more. The Defendant was within its rights to proceed with auctioning the goods after the Plaintiff failed to comply even after restoration. [48] Plaintiff further contended that once the goods were restored, the Defendant could not auction them unless they violated another customs procedure, which did not occur. It is humble view of this court that the Plaintiff did not fulfil the obligations after restoration, specifically transiting the goods within the required 14-day period. The goods remained subject to abandonment provisions under Regulation 117(6) due to the Plaintiff's continued non-compliance. Issue 3: Whether or not the Plaintiff took steps to transit the container after restoration had been granted. [49] The Plaintiff asserts that he took steps to transit the container after restoration by: Filing the customs declaration on 8th June, 2022 and making payments of administrative charges and state warehouse rent on 14th July, 2022. The Plaintiff explains that financial constraints and high demurrage charges delayed the process. [50] The Defendant on the other hand contends that the Plaintiff failed to act within the required 14-day period after restoration. The Plaintiff's inability to pay demurrage charges and other fees resulted in further delays. The Plaintiff did not act diligently to transit the container. 17 Court’s Analysis [51] From the evidence on record I make a finding that after restoration was granted on 7th June 2022, the Plaintiff filed the customs declaration on 8th June 2022. This in my view, initiated the 14-day period to transit the container. The Plaintiff failed to make the necessary payments and transit the container within this period. Payments were only made on 14th July 2022, which was well beyond the 14-day period. Indeed, during cross examination of PW1 on 23rd day of April, 2024, he stated at page 5 as follows; Q: “So you mentioned that your container was restored on the 8h of June 2022and you made payment on the 14"h of July 2022. Are you therefore saying that it took you over a month to do the payment? A: Certainly, so my Lord. Because after restoration, the Defendant did not object to the payment of the charges in question and rather received them to the extent of even giving the Examination Officer by name of Amegashie Abla." [52] In the thinking of this court the Plaintiff did not take the necessary steps to transit the container within the required time after restoration. His delay and failure to act diligently resulted in the lawful auctioning of the container by the Defendant. Issue 4: Whether or not the Defendant was mandated to give the Plaintiff a written notice of seizure after the goods had been seized before auctioning same. [53] The Plaintiff contends that the Defendant failed to provide a written notice of seizure as required under Section 124(2) of the Customs Act, 2015 (Act 891), which invalidates the auction. On the other hand, the Defendant maintains that the goods were not "seized" under Section 124 but were deemed abandoned and confiscated under Regulation 117(6) of L.I. 2248. Counsel for Defendant added that There is no requirement to issue a written 18 notice of seizure for abandoned goods. The gazetting of the goods serves as sufficient notice to the public. Legal Provisions Section 124(2) of Act 891: "(2) Where goods liable to forfeiture are seized, the officer who seized the goods shall give written notice of seizure to the owner..." Regulation 117(6) of L.I. 2248: "Where goods in transit are not exported or declared under a customs procedure within the required time, the goods shall be treated as abandoned and confiscated to the State." Court's Analysis [54] In the light of the evidence before this court I make a finding that the goods in question were not "seized" due to an offence but were deemed abandoned under Regulation 117(6) due to the Plaintiff's failure to act within the required time. The requirement to issue a written notice of seizure applies to goods seized under Section 124, not to abandoned goods under Regulation 117(6). The Defendant complied with the requirement to gazette the goods before auctioning them, which serves as public notice. The Defendant was not mandated to give a written notice of seizure to the Plaintiff for abandoned goods. The auction was conducted in accordance with the law. It needs to be stated with deep sorrow that financial constraints, while unfortunate, do not absolve the Plaintiff from complying with statutory requirements. 19 Issue 5: Whether or not the acceptance of payment of duty on 14th July, 2022 by the Defendant amounted to the said goods having been entered under another customs procedure. [55] The Plaintiff argues that the payment made on 14th July, 2022 constituted entering the goods under another customs procedure, and therefore, the 14-day period should commence from that date. Defendant on the contrary asserts that the payments made were not customs duties but administrative charges and rent. Transit goods do not attract customs duties; duties are suspended for transit goods. The 14-day period commenced from the date the declaration was filed (8th June, 2022). Court's Analysis [56] According to Section 53(1)(a)(b), (2) and(3)(b): - (4) Where goods imported are not delivered from a customs-controlled area (c) Within seven days after final discharge, or (d) Within further period as the Commissioner-General may in special circumstances allow, A proper officer may deposit the goods in a State warehouse for a period of not more than fourteen days. (5) Goods deposited in a State warehouse shall attract rent and other charges as prescribed Section 53 (5) of Act 891 states: "Where under this Act, goods are required to be deposited in a state warehouse and for any reason the proper officer decides that it is undesirable or inconvenient to deposit the goods in the state warehouse the goods shall (a) Be deemed to be deposited in the state warehouse and 20 (b) Attract the appropriate charges.” From the evidence before this court, I make a finding that the payments made by the Plaintiff on 14th July, 2022 were for administrative charges and state warehouse rent and not customs duties. Under transit procedures, customs duties are suspended, and no duties are payable unless the goods are entered under a different customs procedure (e.g., home consumption). There is no evidence before the Court that the Plaintiff applied to change the customs procedure from transit to another; therefore, the goods remained under the transit procedure. As earlier held the 14-day period does not restart upon payment of administrative charges. It commenced from the date of filing the declaration on 8th June, 2022. In the circumstances, the acceptance of payment did not amount to the goods being entered under another customs procedure. The Plaintiff remained bound by the transit procedure timelines. Issue 7: Whether or not the Plaintiff transacted his customs business through a licensed Customs House Agent. The Plaintiff engaged Banner Services Limited on 7th June 2022, five months after the container arrived at the port. This delay in engaging a licensed agent contributed to the failure to transit the container within the required time. The Plaintiff's representative, Mr. Mends, acting under a Power of Attorney dated 15th October 2022, was not involved during the critical period and is not a licensed Customs House Agent. Under Section 44(1) of Act 891, only licensed agents are authorized to transact customs business on behalf of others. 21 In my humble view, the Plaintiff failed to transact his customs business through a licensed agent in a timely manner, and this contributed to the non-compliance with customs procedures. During cross examination of PW1 on 9th day of April, 2024, he stated on page 4 as follows: - Q: “Who is the Declarant or Clearing Agent for this transit transaction? A: Banner Services Limited Q: Do you work for Banner Services Limited A: No, my Lord. Q: So, Banner Services Limited is the Declarant who interacted on Defendant's system in this transit transaction. Is that not so? A: Yes, my Lord. Q: So, have you been appointed by Banner Services Limited to speak to their transactions with the Defendant in this matter? A: My Lord, I don't need Banner Services Limited to tell me to take this action because the Defendant tax laws have made it clear that in issues of this nature a person can take an action against the Defendant and a person means anybody." Q: I am suggesting to you that you are not qualified to speak to a transaction made by Banner Services Limited in respect of the Transit Transaction. A: My Lord that is not correct. Q: Can you as the Plaintiff's representative transit the Containers by yourself on Defendant's system without being licensed to perform such work? A: No, my Lord. 22 Q: So, you agree with me that it is Banner Services Limited who communicated with Defendant on its system and it is them who can explain what they actually did on the system? A: Yes, my Lord but I authorized Banner Services Limited to file a Declaration on Defendant's system for the clearance of the goods. So, every activity is being reported to me since I am acting on behalf of the Plaintiff." Conclusion Based on the foregoing analysis, the Plaintiff failed to comply with the statutory requirements for transiting goods through Ghana. Despite being granted restoration, the Plaintiff did not transit the container within the stipulated time frames. The Defendant acted in accordance with the law by deeming the goods abandoned and proceeding to auction them after proper gazetting. The Plaintiff has failed to discharge the burden of proof required to establish that the Defendant wrongfully auctioned his container. The Plaintiff's claims are hereby dismissed in their entirety. The Defendant lawfully auctioned container number PCIU2933643 in accordance with the applicable laws and procedures. The Plaintiff is not entitled to the reliefs sought. Having regard to the adverse financial circumstances of the Plaintiff which partly explained his failure to comply with the law and avert the unpleasant circumstances that we have witnessed in this trial, I make no order as to cost. 23 H/L. JUSTICE DR. ERNEST OWUSU-DAPAA (JUSTICE OF THE COURT OF APPEAL) 24