A.G. v Brisbane

• Jurisdiction: Saint Kitts and Nevis
• Judge: Lewis, C.J.,GORDON, J.A.
• Judgment Date: 12 June 1968
• Neutral Citation: KN 1968 CA 2
• Docket Number: No. 1 of 1968
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 12 June 1968

The West Indies Associated States in the Court of Appeal.

Lewis, C.J.,

Lewis, J.A.

Gordon, J.A.

Lewis, J.A.

No. 1 of 1968

A.G.

and

Brisbane

Appearances:

F.C. Adams for appellant.

C. F. Henville for respondent.

Statute - Trade and Revenue Ordinance, Cap. 258.

Facts: Whether a television set formed part of the term “bag and private effects” in section 4 of the Ordinance so that it could be imported without a licence. Taking sections 34 and 35 into consideration the television set came within the meaning of the term in section 4 and within the meaning of the word ‘goods’ in the Act.

Lewis, C.J.

1 The facts of this case are very short. The respondent is a married woman with separate estate who lives with her husband in Basseterre.

2 On the 2 ^nd of August 1967 she went on a visit to Montserrat, and on the 8 ^th of September of the same year she returned to St. Kitts by an aeroplane. She brought with her a television set which, in her affidavit dated the 2 ^nd of October 1967, she said she brought as part of her baggage and personal effects. At the airport the television set was detained by a Customs Officer and her husband, on her behalf, was advised to apply for a licence to import it into the State. He accepted and followed that advice but by letter dated the 20 ^th of September 1967, the Comptroller of Customs refused to grant the licence. Accordingly, she took out a summons asking for a declaration that no licence is required under the law for the importation of the television set in the circumstances in which she brought it to St. Kitts.

3 The question which was put to the Judge in the summons whether the television set purchased and used by the said Marguerite Brisbane outside the State and brought into the State her return as part of her baggage may be imported into the State without a licence under the provisions of s. 4(4) (d) of the External Trade Ordinance; and application was further made for an order that the Comptroller of Customs should assess the duty payable upon the said television set and deliver the same to the respondent upon payment by her of the duty so assessed.

4 The summons in due course came on for hearing and was taken in Chambers.

5 The learned Judge found that the television set was brought by the respondent into the State for her personal use and enjoyment and was part of her baggage and private effects, and he declared that the set may be imported into the State without a licence under the provisions of the relevant Ordinance, and that the respondent was entitled to have the set released to her upon payment by her or on her behalf of the proper duties payable in respect thereof. This appeal has been taken against that decision.

6 Yesterday the Court heard argument on the appeal. The Court was referred to the relevant; or what at that time was considered to be the relevant, legislation. The External Trade Ordinance, Chapter 338, is an Ordinance, which makes provision for regulating trade with other countries. By s. 3 (1) the Governor in Council is empowered under (a) of the subsection, to “prohibit the import of any class of goods from or originating in any country or place without a licence granted under the provisions of s. 4”; and under (b) to “prohibit absolutely or limit the importation of any goods if in his opinion such action is in the interest of the Colony (which is now the State) or of any other part of Her Majesty's dominions and may for the same reason make by Order any such imports subject to such conditions as he may think fit”.

7 Under the provisions of that section the Governor in Council made an order (at that time it was the Administrator Council) No. 41 of 1961. It is called The External Trade (Open General Licence) Order, 1961, and it came into force on the 15 ^th of December 1961. Section 2 of that Order is headed “Importation of Goods” and is as follows:

“Any person in the Colony may import any goods from any country except that the following importations are hereby prohibited:

• 1. Importation of any goods from or originating in the countries listed in the first Schedule hereto;

• 2. Importation from any country of the goods specified in the Second Schedule hereto;

  and nothing in this Order shall be construed as authorising any importation of goods which is prohibited or restricted under any other law far the time being in force”.

8 The Second Schedule to that Order was amended by Statutory Rules and Orders 1964, No. 20, and the words “television sets” were inserted in that Schedule.

9 These were the relevant provisions, which were brought to the notice of the Court when the Court adjourned to consider its judgment. The Court, on considering, was in doubt as to whether this Order did not create an absolute prohibition of the importation of television sets, and as to whether the provisions of s. 4(4)(d) of The External Trade Ordinance — to which I shall return in a moment — applied, to this prohibition. The Court therefore asked learned counsel to come back this morning earlier than the time fixed to hear argument on this point.

10 When the Court sat this morning, learned counsel for the appellant drew its attention to a further amendment of The External Trade (Open General Licence) Order, namely: Statutory Rules and Orders 1965, No. 16, by which the words “without an import licence” were inserted into s. 2 of the original 1961 Order, after the word ‘importations°’, so that s. 2, as amended, now reads: “Any person in the Colony may import any goods from any country except that the following importations without an import licence are hereby prohibited: –…”

11 Speaking for the court when this Order was produced, I had occasion to say that in spite of the requests which I have made that all Statutes, Ordinances, Acts and Regulations which have been passed since the 1961 Revision should be sent to the Office of the Court of Appeal, which is also the Chief Justice's Office, the headquarters of this Court, these requests have up to now not been complied with, and I do hope that the authorities this country who are concerned with facilitating the administration of justice will come to realise how important it is that the members of the Court should be supplied with the relevant legislation, and how difficult the work of this Court is made if the request to be supplied with the legislation of this State is consistently ignored, I shall say no more about that.

12 The effect of the amendment of 1965 makes it abundantly clear that the prohibition of the importation of television sets falls within s. 3(1) (a) of Chapter 338. The Order prohibits the importation of certain specified goods from all countries without a licence. Now, s. 4 of that Ordinance empowers the Supply Officer to grant a licence for the import of any import restricted goods. “Import restricted goods” as defined in s. 2 means: “any goods in respect of which the Administrator in Council has made an order either under paragraph (a) of subsection (1) of s. 3 prohibiting their import from any country or place without a licence or under paragraph (b) of subsection (1) of the said s. 3 limiting their import;” so that television sets are import restricted goods.

13 Subsections (2) and (3) of s. 4 are not relevant to this case. Subsection (2) merely specifies certain cases in which the Supply Officer is not to grant a licence, and subsection (3) empowers him...