Garvin Holder v Comptroller of Customs

• Jurisdiction: Trinidad & Tobago
• Judge: I. Archie C.J.,M. Mohammed J.A.,V. Kokaram J.A.
• Judgment Date: 22 July 2022
• Neutral Citation: TT 2022 CA 32
• Docket Number: Civil Appeal No. P023 of 2018
• Court: Court of Appeal (Trinidad and Tobago)
• Year: 2022

IN THE MATTER OF THE JUDICIAL REVIEW ACT NO. 60 OF 2000

And

IN THE MATTER OF AN APPLICATION FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW

And

IN THE MATTER OF THE DECISION OF THE COMPTROLLER OF CUSTOMS TO SEIZE AND/OR DETAIN GOODS OF THE INTENDED CLAIMANT PURSUANT TO SECTION 219 OF THE CUSTOMS ACT, CHAPTER 78:01

Between

Garvin Holder

Appellant/Intended Claimant

and

Comptroller of Customs

Respondent/Intended Defendant

Panel:

I. Archie C.J.

M. Mohammed J.A.

V. Kokaram J.A.

Civil Appeal No. P023 of 2018

Claim No. CV2017-01890

IN THE COURT OF APPEAL

Appearances:

Mr. Jagdeo Singh and Mr. Kiel Taklalsingh instructed by Ms. Karina Singh, for the Appellant.

Ms. Monica Smith instructed by Ms. Rachel Theophilus and Ms. Kadine Matthew, for the Respondent.

TABLE OF CONTENTS

	Page No
Introduction	4
The Facts	8
The Judgment	9
The Test	10
The Interpretation Issue-Section 220 of the Customs Act	11
Textual Analysis	13
Context	16
Historical Context	18
Canons of Interpretation	18
Judicial Precedent	20
Substantial Compliance	23
The Constitutional Issue	25
Natural Justice Issue	28
Unjust Results	31
Omission to Perform a Duty	31
Legitimate Expectation	31
Reasonableness	32
Delay	32
Alternative Remedy-Effective Remedy	33
Conclusion	34

Introduction

1 The main question in this appeal turns on the proper interpretation of a deeming provision in section 220(1) of the Customs Act Chap 78:01 (“the Customs Act”) which provides, among other things that goods that are seized by the Comptroller of Customs (“the Comptroller”) shall be deemed to be condemned and may be sold or otherwise disposed of unless written notice of a claim is made for them by the owner within one (1) month of its seizure. Once such a claim is made within time the Comptroller must institute forfeiture proceedings with respect to those goods.

2 The appellant, Mr. Garvin Holder, made a claim outside of the statutory one month period to goods which were seized by the Comptroller who has refused to return the goods or institute forfeiture proceedings pursuant to section 220 (1) of the Customs Act. The Comptroller contends that pursuant to the express provision of that section these goods were deemed to have been condemned when Mr. Holder failed to give any notice of a claim to these goods within the statutory period of one month from the date of seizure.

3 Mr. Holder advances that section 220(1) should be construed as implying a right to be heard before the goods are deemed to be condemned or that there is a residual discretion conferred on the Comptroller to extend the time to make a claim or to institute forfeiture proceedings, notwithstanding failure to make a claim within the statutory period. To interpret it otherwise would mean that the deeming provision of section 220 is unjust, oppressive and unconstitutional.

4 Mr. Holder's application for leave to apply for judicial review of the Comptroller's decision was dismissed by the Court below which found that section 220(1) of the Customs Act provided an unambiguous requirement for Mr. Holder to provide notice of his claim within one month of the seizure of his goods, to avoid the goods being condemned. The trial judge also found that there was no discretion conferred by section 220 on the Comptroller to consider Mr. Holder's request to extend the time to make his claim or to commence forfeiture proceedings notwithstanding the late notice.

5 In our view, while the consequences for non-compliance with the notice provision will have harsh consequences for Mr. Holder, the deeming provision is not contrary to constitutional principles nor the demands of fundamental justice. Undoubtedly, the exercise of a statutory power must comport with such procedural safeguards to give life to the fundamental right of due process. However, no right is absolute and is subject to reasonable limitations consistent with well-established principles of fundamental fairness.

6 More importantly, the exercise of a statutory power by the Comptroller is contextual. Its limits or parameters are determined by the scope of the legislation and context of the power under review, in this case, the statutory scheme providing for the seizure and condemnation of goods set out in sections 220 to 223 of the Customs Act.

7 We are of the view that there is no warrant to effectively re-draft the legislation denuding the deeming provision of any meaning and purpose. The effect of section 220 is that Mr. Holder's goods were condemned once he failed to give notice consistent with that section. Certainty and consistency in the operation of fixed statutory time limits in this case ensures that the statute operates without discrimination in creating a window of opportunity for any person who has an interest in the goods to make a claim and trigger forfeiture proceedings. We are fortified by this view as section 221 of the Customs Act provides for the President of the Republic of Trinidad and Tobago to ameliorate the difficult consequences which may arise from such automatic condemnation. In this sense, our construction of section 220 as part of the overall scheme of seizure by the Comptroller is conducive to and not inimical to the principles of fundamental fairness and access to justice.

8 In this judgment we set out our analysis of our findings on each of the issues which arise on this appeal as set out below:

I. The Interpretation Issue: What is the proper meaning and effect of the deeming provision in section 220(1) of the Customs Act?

Finding: Goods that are seized are deemed to be condemned once no notice in writing is made to the Comptroller of a claim to the seized goods within one month of its seizure or, if there is proper notice, upon a determination to that effect in forfeiture proceedings. In that event the goods may be sold or disposed of unless the President otherwise directs pursuant to section 221 of the Customs Act.

II. The Constitutional Issue: Whether the Court should read into section 220(1) of the Customs Act a discretion to be exercised or an obligation by the Comptroller before condemnation of the goods, to extend the time for making the claim and institute forfeiture proceedings or notwithstanding late notice, a right to be heard before condemnation to give effect to the constitutional rights of due process or protection of the law.

Finding: In our view the statute clearly provides for a limitation period which is neither offensive to the constitutional values of due process nor access to justice. Access to justice is not open ended. This statutory scheme regulates Mr. Holder's access to the courts to vindicate his rights to the goods, in this case, through forfeiture proceedings by Mr. Holder first giving timely notice of his claim as contemplated by section 220(1) of the Customs Act.

III. The Natural Justice Issue: Whether the Court should construe the deeming provision to require a discretion to be exercised by the Comptroller to extend time or a hearing be given by the Comptroller before condemnation as a sufficient procedural safeguard and basic requirement of fairness, fundamental justice or natural justice.

Finding: There is no need to graft new provisions into the legislation which would frustrate the purpose and policy of a limitation period and in which a fair process of relief is already provided in section 223 of the Customs Act.

IV. The Reasonableness Issue: Whether such an implied duty exists as a fair, reasonable and rational exercise of statutory power.

Finding: There is no statutory power, duty or discretion imposed on the Comptroller to consider any claim outside the one month statutory period or to trigger forfeiture proceedings without compliance with the statutory pre-condition or step of notice pursuant to section 220 of the Customs Act.

V. Whether Mr. Holder delayed in making this application for leave to apply for judicial review and/or there is good reason to extend time to make the application.

Finding: In the circumstances of this case, there is no good reason to extend time to make the application for leave.

VI. Whether there exists an effective alternative remedy under section 223 of the Customs Act.

Finding: Section 223 of the Customs Act adequately provides an avenue for Mr. Holder to obtain relief. It is an integral part and an ameliorating provision of the section 220 forfeiture process. It is a process whereby the President exercises much wider powers than the Comptroller and which is subject to review.

The Facts

9 The facts before the trial judge were not in dispute as the matter was determined at the leave stage based only on the Appellant's evidence. Mr. Holder was an independent contractor who provided commercial transportation services of container shipments for companies and businesses. In order to conduct transportation, he used a trailer truck owned by his father and rented a trailer with a Flatback. On 6 ^th November 2016 he was contracted to receive and deliver a shipment at the port in Point Lisas. While he was exiting the port, he was intercepted and questioned by customs officials. The shipment was inspected. The following day the trailer truck along with the trailer and shipment were seized and he received a notice of seizure, which made express reference to section 220(1) of the Customs Act requiring Mr. Holder to make a claim within one month of the seizure to the goods to avoid condemnation and sale.

10 He sought legal advice and approximately 65 days later on 11 ^th January 2017 his attorneys sent a letter to the Comptroller giving notice of his intention to claim the trailer truck pursuant to section 220(1) of the Customs Act. His attorneys called upon the Comptroller to commence...