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
the Nigeria Customs ports and approved border stations have taken to third
party engagement in transacting business with the Nigeria Customs Service.
And for the emphasis, may we draw the attention of all practicing freight
forwarders to Sections 154 and 155 of the Customs law dwelling on matters
of liability of the agents and that of the principals in all Customs
engagement.


154.    Liability of Agents for Duty, etc.
Any person who acts as an agent of an importer, exporter or proprietor of
goods shall be personally liable for the payment of any duties payable in
respect of those goods and for the performance of all acts under the
customs and excise laws in relation to those goods as though he were the
importer, exporter or 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
from the date any such duty became payable or any such act fell to be
performed;

(ii)    nothing in this section shall relieve the principal from any liability.

155.  Liability of Principals
Any person who authorises 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 acts and declarations of his agent, and may accordingly be prosecuted
for any offence against the customs and excise laws committed by the agent
in respect of any such 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
such person to prove that he had used due diligence to secure compliance
with the provisions of the customs and excise laws, as the case may be,
and the offence was committed without his consent, con¬nivance or wilful
default; and

(ii)    nothing contained in this section shall relieve the agent from
liability to prosecution for any offence under the customs and excise
laws.

From the foregoing a professional freight forwarder should realize that it
shall become a double jeopardy wherein he or she assumes the position of a
shipper and that of the agent.  And to the contrary the claim of ownership
of transaction for Customs purposes is false-wherein in reality the
freight forwarder is not the real shipper.  In the event of criminality in
relation to declaration made for Customs purposes, it is only the freight
forwarder that shall be liable for untrue declaration, arrest and
prosecution thereto in a law court because there may not be any evidence
to link up the actual owner of the import or export goods.  May we
therefore advise that freight forwarders should be very careful in their
documentation and engagement for Customs purposes.  And for us in NAGAFF
we shall simply advise that freight forwarders should stop the use of
their private companies to import and export goods for and on behalf of
their principals.

It is on record that in various contraventions of the Customs laws
involving third party transactions with the Customs, the actual owners of
the cargo are usually in denial of knowledge of such transactions.  The
freight forwarder is left alone to suffer the consequences of breaching
the Customs laws.  Going forward, all practitioners must ensure due
diligence to secure compliance with the provisions of the extant Customs
laws.  Let us key into the ongoing Customs reforms for the good of our
country and our profession.  And for the avoidance of doubts the ugly
experiences of practitioners at FOU’s, Customs Commands, Post Audit Units
and indeed the various committee on PAAR enquiries are reference points
the consequences of the subject matter under references.  We can only
earn our honour and respect before Government operatives when we obey laws
and regulations governing international business in Nigeria.  I therefore
charge all NAGAFF members to show professional ability in the course of
our legitimate transaction.

Dr. B. O. Aniebonam is the Founder NAGAFF