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Appeal court overturns ruling that favoured former Customs official in car seizure case

Published:Sunday | March 6, 2016 | 3:00 AMBarbara Gayle
The Supreme Court at King Street, Kingston.

The Court of Appeal has overturned a Supreme Court ruling that favoured a former director of customs in the contraband enforcement department, Omar Guyah, who has been fighting the seizure by customs officials of a 2007 Suzuki motor car.

The upper court held that the vehicle was "uncustomed goods".

Although the Supreme Court had ruled otherwise in Guyah's favour, the former customs director still appealed in a challenge of the judge's refusal to also declare that the seizure of the motor car was unreasonable and an abuse of Customs' authority.

He also complained that since the judge ruled in his favour in declaring that the seizure was wrong in law, the judge was wrong to deny him recovery of costs from the commissioner of Customs and the attorney general, both of whom were respondents in the case.

The respondents filed a counter-notice of appeal, asking the court to overturn the Supreme Court ruling.

Two weeks ago, the court dismissed Guyah's appeal, allowed the respondents' counter-notice of appeal, and set aside the orders made in the Supreme Court.

The appeal court then declared that the motor car constituted uncustomed goods at February 12, 2012, and was subject to seizure by customs officials.

Guyah was ordered to pay two-thirds of the legal costs of the commissioner of Customs and the attorney general on the appeal, and two-thirds of the costs on the counter-notice of appeal as the respondents were not successful on one of the grounds filed. No order for costs was made for the proceedings in the Supreme Court.

FINALLY DISMISSED

Guyah's civil suit stemmed from the seizure of the motor car and his arrest by officers from the Revenue Protection Division in March 2012 on a number of charges, including corruption and breaches of the Customs Act.

He was charged in connection with the Suzuki motor car and 13 other vehicles, which Guyah and other customs officials seized in 2010. The Court of Appeal pointed out in its written judgment that the prosecution of Guyah languished in the Corporate Area Resident Magistrate's Court until the case against him was finally dismissed in February 2015.

In November 2009, the Suzuki motor car was unloaded from a ship and placed in a customs-bonded facility operated by wharfingers at Kingston Logistics Centre. The importer took no steps to clear it.

In 2010, customs officials seized 14 motor vehicles, including the Suzuki motor car, and placed them in the facility operated by Kingston Logistics.

The Customs commissioner issued forfeiture orders for the motor vehicles, but no attempt was made by the importers to set aside the orders or clear the motor vehicles, which continued to accrue charges.

Kingston Logistics sent a letter to the commissioner in January 2011, asking that the motor vehicles be treated as abandoned. The commissioner responded in March 2011 and gave directions as to the process to be used for clearing them.

The Suzuki motor car was appraised by Customs at a value of US$6,800, and duties and taxes were assessed at J$560,036.39. Guyah paid the duties and taxes in April 2011, and the vehicle was released by Customs to Kingston Logistics.

"The release was on the basis that the customs department had sold it to Kingston Logistics by way of auction, although that did not in fact occur," the Court of Appeal said.

On April 27, 2011, Kingston Logistics issued a letter certifying that it had sold the vehicle to one Audrey Carter, and in June 2011, Carter had the motor vehicle licensed and registered in her name.

On February 15, 2012, the contraband enforcement team seized the motor vehicle from Guyah's sister, Kerri-Ann Guyah. She was an employee of the Customs Department at the time of the seizure and she gave a written statement that she had borrowed the motor car from Carter from about July or August 2011.

Carter gave a written statement on February 29, 2012, to officers of the Revenue Protection Division (RPD) that she had purchased the motor vehicle from Kingston Logistics but said that Guyah had carried out the transaction for her. She said that he advanced the purchase money but she had repaid him.

She also said that she had purchased other motor vehicles from Kingston Logistics.

The court said it could be gleaned from Carter's statement that "Mr Guyah was involved, in a similar way, in at least one of those transactions".

Carter admitted lending the motor vehicle to Miss Guyah.

However, Carter was questioned in April 2012 at the offices of the RPD, and the court said that in one of the answers, she said that, "the Suzuki Swift was never hers and that it belonged to Mr Guyah."

UNLAWFULLY SEIZED

Guyah had also named Carter as a respondent in the suit, but she was not served with the claim form and did not take part in the litigation. He sought a number of remedies, including declarations that the motor vehicle was not uncustomed goods, was not liable to seizure under section 210 of the Customs Act, and that it had been unlawfully seized by officers of the customs department. The appellate court said that it appeared that the motor vehicle was returned to Carter, and Guyah's criminal case was dismissed for want of prosecution sometime before the Supreme Court judgment.

The court agreed with attorney Althea Jarrett, who represented the respondents, that Guyah had no legal standing to bring the claim that the motor vehicle was unlawfully seized or that its seizure was an abuse of authority as he was not shown to be the owner of the vehicle.

The court disagreed with Jarrett's submission that the notice of detention issued to Miss Guyah was not a document used for customs purposes.

Guyah had complained about comments made about him by the judge, one of which was: "I will merely say that although Mr Guyah is a very important Crown servant, this court is of the view that he did not act in the best traditions of the civil service."

Attorneys Paul Beswick and Georgia Buckley, who represented Guyah, had argued that the comments made by the judge should be set aside. The Court of Appeal said that it was within the its authority to make observations concerning comments made by judges in the course of proceedings or in its judgments, but it was not clear that the court might make orders in respect of those comments.

The court said that Justice Leighton Pusey made the statements after he found that the Suzuki motor car did not constitute uncustomed goods. The court found that there was no merit in the complaint.

The appeals panel, comprising Justice Patrick Brooks, Justice Almarie Sinclair-Haynes, and acting Justice Paulette Williams, further ruled that the judge was stating his view of Guyah's conduct.

"It is not difficult to ascertain the reason behind his view. No doubt the 'tangled web' concerning the ownership of the Suzuki, and the fact that Miss Carter's responses to the officials to the effect that Mr Guyah was involved with her in transactions involving five vehicles, which were, apparently, bought in the same manner as the Suzuki, had a significant influence on the judge's view," the court held.

barbara.gayle@gleanerjm.com