Third Party Transactions on customs -related matters can create unlimited liability, threat to freight forwarders
By Bonfiace Aniebonam
It is to the knowledge of
NAGAFF that most freight forwarders operating in
NAGAFF that most freight forwarders operating in
the Nigeria Customs ports
and approved border stations have taken to third
and approved border stations have taken to third
party engagement in
transacting business with the Nigeria Customs Service.
transacting business with the Nigeria Customs Service.
And for the emphasis, may
we draw the attention of all practicing freight
we draw the attention of all practicing freight
forwarders to Sections 154
and 155 of the Customs law dwelling on matters
and 155 of the Customs law dwelling on matters
of liability of the agents
and that of the principals in all Customs
and that of the principals in all Customs
engagement.
154.
Liability of Agents for Duty, etc.
Liability of Agents for Duty, etc.
Any person who acts as an
agent of an importer, exporter or proprietor of
agent of an importer, exporter or proprietor of
goods shall be personally
liable for the payment of any duties payable in
liable for the payment of any duties payable in
respect of those goods and
for the performance of all acts under the
for the performance of all acts under the
customs and excise laws in
relation to those goods as though he were the
relation to those goods as though he were the
importer, exporter or
proprietor of those goods, as the case may be:
proprietor of those goods, as the case may be:
Provided that —
(i) the
agent shall cease to be liable under this section after one year
agent shall cease to be liable under this section after one year
from the date any such duty
became payable or any such act fell to be
became payable or any such act fell to be
performed;
(ii)
nothing in this section shall relieve the principal from any liability.
nothing in this section shall relieve the principal from any liability.
155. Liability of
Principals
Principals
Any person who authorises
an agent to act for him in relation to any goods
an agent to act for him in relation to any goods
for any of the purposes of
the customs and excise laws shall be liable for
the customs and excise laws shall be liable for
the acts and declarations
of his agent, and may accordingly be prosecuted
of his agent, and may accordingly be prosecuted
for any offence against the
customs and excise laws committed by the agent
customs and excise laws committed by the agent
in respect of any such
goods in the same manner as if he had himself
goods in the same manner as if he had himself
committed the offence:
Provided that —
(i) in
any prosecution for such offence it shall be a good defence for
any prosecution for such offence it shall be a good defence for
such person to prove that
he had used due diligence to secure compliance
he had used due diligence to secure compliance
with the provisions of the
customs and excise laws, as the case may be,
customs and excise laws, as the case may be,
and the offence was
committed without his consent, con¬nivance or wilful
committed without his consent, con¬nivance or wilful
default; and
(ii)
nothing contained in this section shall relieve the agent from
nothing contained in this section shall relieve the agent from
liability to prosecution
for any offence under the customs and excise
for any offence under the customs and excise
laws.
From the foregoing a
professional freight forwarder should realize that it
professional freight forwarder should realize that it
shall become a double
jeopardy wherein he or she assumes the position of a
jeopardy wherein he or she assumes the position of a
shipper and that of the
agent. And to the contrary the claim of ownership
agent. And to the contrary the claim of ownership
of transaction for Customs
purposes is false-wherein in reality the
purposes is false-wherein in reality the
freight forwarder is not
the real shipper. In the event of criminality in
the real shipper. In the event of criminality in
relation to declaration
made for Customs purposes, it is only the freight
made for Customs purposes, it is only the freight
forwarder that shall be
liable for untrue declaration, arrest and
liable for untrue declaration, arrest and
prosecution thereto in a
law court because there may not be any evidence
law court because there may not be any evidence
to link up the actual owner
of the import or export goods. May we
of the import or export goods. May we
therefore advise that
freight forwarders should be very careful in their
freight forwarders should be very careful in their
documentation and
engagement for Customs purposes. And for us in NAGAFF
engagement for Customs purposes. And for us in NAGAFF
we shall simply advise that
freight forwarders should stop the use of
freight forwarders should stop the use of
their private companies to
import and export goods for and on behalf of
import and export goods for and on behalf of
their principals.
It is on record that in
various contraventions of the Customs laws
various contraventions of the Customs laws
involving third party
transactions with the Customs, the actual owners of
transactions with the Customs, the actual owners of
the cargo are usually in
denial of knowledge of such transactions. The
denial of knowledge of such transactions. The
freight forwarder is left
alone to suffer the consequences of breaching
alone to suffer the consequences of breaching
the Customs laws.
Going forward, all practitioners must ensure due
Going forward, all practitioners must ensure due
diligence to secure
compliance with the provisions of the extant Customs
compliance with the provisions of the extant Customs
laws. Let us key into
the ongoing Customs reforms for the good of our
the ongoing Customs reforms for the good of our
country and our
profession. And for the avoidance of doubts the ugly
profession. And for the avoidance of doubts the ugly
experiences of
practitioners at FOU’s, Customs Commands, Post Audit Units
practitioners at FOU’s, Customs Commands, Post Audit Units
and indeed the various
committee on PAAR enquiries are reference points
committee on PAAR enquiries are reference points
the consequences of the
subject matter under references. We can only
subject matter under references. We can only
earn our honour and respect
before Government operatives when we obey laws
before Government operatives when we obey laws
and regulations governing
international business in Nigeria. I therefore
international business in Nigeria. I therefore
charge all NAGAFF members
to show professional ability in the course of
to show professional ability in the course of
our legitimate transaction.
Dr. B. O. Aniebonam is the Founder NAGAFF
