Chawla, Jitendra (aka) Jack Charles v Attorney General
| Jurisdiction | Belize |
| Judge | Conteh, C.J. |
| Judgment Date | 29 July 2002 |
| Court | Supreme Court (Belize) |
| Docket Number | 208 of 2002 |
| Date | 29 July 2002 |
Supreme Court
Conteh, J.
208 of 2002
Mr. Dean Barrow S.C., for the applicant.
Mr. Elson Kaseke, Solicitor General, with Ms. Minnet Hafiz, for the respondent.
Constitutional Law - Fundamental Rights and Freedom — The appellant paid an excess deposit with respect to goods imported by him — The defendant authority did not refund the excess — The defendants later entered the appellant's premises by writ of assistance and seized goods therein — Whether the search and seizure was constitutional — S.9 of the Constitution gives freedom from arbitrary search and entry — The writ of assistance gives prior authorization and unregulated access to search an individual's premises — The writ offends the constitution.
This is an application by Notice of Originating Motion dated 2nd May, 2002 by Jitendra Chawla, a.k.a. Jack Charles, for redress pursuant to section 20(1) of the Belize Constitution and Rule 3(1) of the Supreme Court (Constitutional Redress and Reference) Rules and the inherent jurisdiction of this Court for the following Declarations, Orders and relief:
“(1) A Declaration that the constitutional rights of the applicant under Sections 9, 14 and 17 of the Belize Constitution have been contravened by the Comptroller of Customs/Government of Belize in consequence of the wrongful collection and retention of excess duty and an excess deposit with respect to goods imported by the applicant; and in the consequence of the unlawful search and seizure of the applicant's premises on April 10th, 2002, invasion of his privacy and illegal detention of his property viz 12 computers and 33 sacks of rice.
(2) An Order that the Comptroller of Customs give back the sum of $36,529.55 (BZE) together with commercial interest from 17th July 2001 which he wrongfully collected and retained from the applicant as a deposit (on a Provisional Entry in respect of goods being imported) over and above the duties that had been estimated by the said Comptroller at $53,470.45.
(3) An Order that the Comptroller of Customs give back to the applicant the sum of $24,250.00 together with commercial interest from August 30th, 2001, as being money wrongfully collected and retained as uplifted duties on goods imported by the applicant, despite the applicant's proof that the correct duty on the said goods was in fact $29,220.45.
(4) An Order that the Comptroller of Customs give back to the applicant 12 computer systems and 33 sacks of rice, which he wrongfully seized and detained on April 10th, 2002.
(5) An Order that the Comptroller of Customs/Government of Belize pay damages to the applicant for the breach of the applicant's constitutional rights and for loss and damage suffered (by a business transaction cancelled) in consequence of, in particular, the seizure and detention of the applicant's computer systems.
(6) Such further and other relief as the court deems just.”
The grounds stated by the applicant for his application are as follows:
“1. On the 17th July 2002, the Comptroller of Customs required a deposit of $90,000.00 in respect of a Provisional Entry passed by the applicant pertaining to goods the applicant imported. The Comptroller at the time estimated the duty on the goods at $53,470.45, but wrongfully and in breach of the applicant's constitutional rights, obliged the applicant to deposit $90,000.00 rather than the said $53,470.45 in order for him to release the goods and await an Adjusting Entry, and thus illegally deprived the applicant of $36,529.55.
2. On August 30th of 2001, the applicant passed an Adjusting Entry to perfect the Provisional Entry referred to in Ground 1. The Comptroller of Customs, notwithstanding proof of the values submitted by the applicant in his Adjusting Entry, wrongfully insisted on collecting duty in the amount of $53,470.45, rather than $49,220.45, thus illegally depriving the applicant of $24,250.00.
3. The Comptroller of Customs, via his agents and servants in the Customs Department, wrongfully entered and searched the applicant's premises twice on April 10th, 2002, and illegally seized, carried away and thereafter detained 12 computer systems and 33 bags of rice on which customs duties had already been paid and which were lawfully in the custody of the applicant.”
In support of his application the applicant filed an affidavit sworn to on 30th April 2002 and filed on 2nd May 2002.
In opposition to the application, Mr. Everard Lopez, acting Comptroller of Customs; Mr. Colin Griffith, Senior Customs Officer; Mr. Victor Recinos, a Collector of Customs in charge of Customs Investigations Section called the Customs Enforcement Unit; Mr. Angel Cocom, Senior Customs Examiner; and Mr. Pete Castillo, Assistant Customs Systems Administrator, all swore affidavits dated 24 May 2002 and filed the same day.
The Director of Public Prosecutions also swore to an affidavit dated 29th May 2002 and filed the same day when the hearing of this application was well under way. I can say at the outset that the averments in this affidavit will turn on what is the outcome of one of the principal issues for determination in this application.
The applicant also filed a further affidavit dated 29th May 2002 in answer to the affidavits of Pete Castillo, Angel Cocom and Victor Recinos referred to earlier.
The following facts could be gleamed from the several affidavits which have given rise to this application. The applicant is a businessman doing business as Xtra House, a supermarket situated in Cemetery Road, Belize City. Sometime in July 2001, the applicant imported sundry goods for his supermarket. There was some divergence between him and the Customs authorities as to the actual Customs duties exigible on his imports. The applicant's own documents showed that a total duty of $29,629.32 was payable. In order to clear the goods, a Provisional Entry was approved for the applicant, but for this he was required to deposit the sum of $90,000.00, which he did. On a final assessment of the duties payable, the sum of $54,477.41 was arrived at by the Customs authorities. I must mention that the applicant gives the sum of $53,470.45, as the sum Customs insisted on collecting from him as the duties payable. Nothing much turns on this variation between the two sums, that is the sum of $54,477.41 the Customs said was the total amount of duties payable by the applicant, and the sum of $53,570.45, the applicant said the Customs stated was the final duty payable. The real bone of contention is the deposit of $90,000.00 required of the applicant and which he had to pay in order to clear his goods on the provisional entry. From this sum the final duty, whether the sum of $53,570.45 as stated by the applicant or the sum of $54,477.41 as deposed to by the Customs authorities (see paragraph 8 of the affidavit of Everard Lopez, the acting Comptroller of Customs), was eventually deducted. It is the $90,000.00 deposit that the applicant contends was unlawfully taken from him as it constitutes an excess deposit and therefore an unconstitutional taking of his property. The applicant also complains that notwithstanding proof of the values of his imports submitted by him, the Customs authorities insisted on collecting duty as assessed by them, thereby depriving him of the extra sum he had to pay, which was deducted from the $90,000.00 deposit he was required to pay.
Mr. Everard Lopez, the Acting Comptroller of Customs deposes in his affidavit, among other things, as follows:
“1. On or about 17th July 2001, the Invoice Section forwarded to me Customs Entry with Registration No. R09686 dated 10th July, 2001 which showed a total duty of $29,629.32. This is now shown to me and marked “E. L. 1”.
2. On the said date Mr. Colin Griffith, Senior Customs Officer indicated to me that the applicant had to pay approximately $28,000.00 additional duties.
3. On the said date, the applicant informed me that he needed his goods and I informed him that for the goods to be released he had to pay a deposit of twice the estimated duties. I requested that he pay $90,000.00 as a deposit and that upon providing further proof of value of the goods we would give him a refund.
4. That by section 24 of the Customs Regulation Act Chapter 49 I have the authority to request any Declarant to make a Deposit of a sum of money sufficient in amount to cover the estimated duties payable and additional duties not being less than the amount deposited as the estimated duties.
5. On 17th July, 2001 the applicant made a Provisional Entry for the sum of $90,000.00. The said Entry is now shown to me and marked “E. L. 2”.
6. On 4th December, 2001 the Invoice Section delivered to the Declarant Miguel Torres two Assessment Notices for the duties payable. Assessment A 22405 for a total of $30,226.78 being the provisional duty on Entry No. R 14569 and Assessment A 22406 for a total of $24,250.63 being the additional duties. The total amount of Duties payable amounting to $54,477.41. Copies of the said Assessment notices are now shown to me and marked “E. L. 4” and “E. L. 5”.”
The applicant also complains of the illegal entry and search of his premises and removal therefrom of computers and some sacks of rice. In April 2002, the applicant imported some goods, this time twelve computers with some other goods. There is some conflict in the affidavits of the applicant (paragraphs 6 and 7 of his affidavit of 30th April 2002) and the affidavit filed on behalf of the Customs authorities (paragraphs 2, 3, 4, 5, 6, 8, 9 and 10 of the affidavit of Victor Recinos, a Customs Collector in charge of the Customs Investigations Sections), as to what really happened on the entry and clearance by the applicant of these goods. What is agreed and undisputed is that there was an uplift or an increase in the duty payable by the applicant...
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