NAZEER AND ANOTHER

Vs.

WIJEWEERA AND ANOTHER

COURT OF APPEAL
J. DE SILVA, J.
KARUNARATHNA, J.
CA/WRIT /83/2014
MAY 9, 2019

Writs of certiorari and mandamus-Customs Ordinance, sections 8(1), 12, 43, 107A (1)-lmport and Export Control Act, No. 1 of 1969- Exchange Control Act-Admission of guilt-Action for declaration of title-Alternative Remedy

The 1st petitioner was intercepted by customs on his arrival in Colombo and 10 gold slabs valued at Rs. 5 million were found in his possession

in contravention of sections 12, 43, 107A(1) of the Customs Ordinance read with the Import and Export Control Act. A customs inquiry was held in terms of section 8(1) of the Customs Ordinance by the 2nd respondent on the same day and the 1st petitioner was represented by an attorney-at-law who pleaded guilty to the charges. The 2nd respondent inter alia declared the forfeiture of the gold. The petitioner filed this application before the Court of Appeal seeking a writ of certiorari quashing the said order and a writ of mandamus compelling the respondents to release the gold to the petitioner.

Held:

1. An admission of fact made by counsel is binding on the client. It cannot be withdrawn.

2. Where the goods in question "shall be forfeited" in terms of section 44 of the Customs Ordinance as opposed to "liable to forfeiture", there is no decision that can be quashed by a writ of certiorari for the goods are forfeited by operation of law and not by an order of the inquiring officer.

3. A party aggrieved must bring an action for declaration of title to the goods in question in the District Court having jurisdiction in terms of section 154 of the Customs Ordinance. The writ court cannot intervene when the Jaw provides for such an alternative remedy,

Cases referred to:

1. Uvais v. Punyawathie [1993] 2 Sri LR 46
2. Sivaratnam and others v. Dissanayake and others [2004] 1 Sri LR 144 at 148.
3. Palasamy Nadar v. Lanktree 51.'NLR 520 at 522
4. Lanka Jathika Sarvodaya Shramadana Sangamaya v. Heengama Director General of Customs and others [1993] 1 Sri LR 1 at 13
5. A.H. Kothari v. K.P.W. Fernando 74 NLR 463 at 466, 7
6. Palasamy Nadar v. Lanktree 51 NLR 520 at 522
7. Bhambra v. Director General of Customs and others [2002] 3 Sri LR401
8. Ishak v. Laxman Perera, Director General of Customs and another [2003] 3 Sri LR 18
9. Bhambra v. Director General of Customs and others [2002] 3 Sri LR 401

10. Niroshana and another v. Gunasekera and another [2006] 3 Sri LR 152

APPLICATION for Writs of Certiorari and Mandamus.

A.M. Jiffry for the Petitioners.

Milinda Gunathilaka, Senior D.S.G., for the Respondents.

cur. adv. vult.

August 9, 2019

J. DE SILVA, J.

The 1st Petitioner on his own admission is a regular air traveller and a businessman engaged in the business of importing varied goods in terms of orders placed with him by various businessmen. The 1st Petitioner claims that on 23.01.2014 the 2nd Petitioner sought his assistance to collect gold from his brother Mohammed Jawahir, a businessman based in Dubai and bring them back safely to Colombo. He had travelled to Dubai on the same day and returned to Colombo the next day 24.01.2014 with the gold.

This version of the 1st Petitioner does not corroborate the statement he made to the Customs (R2) wherein it is stated that he went to Dubai to bring mobile parts and that he met one Ramalingam there who requested him to take 10 gold pieces to Colombo and from there to Mumbai.

The customs intercepted the 1st Petitioner on his arrival in Colombo on 24.01.2014. There is a dispute whether this was after he had entered the "Green Channel" without submitting a customs declaration or after he made the customs declaration.

In any event, a customs inquiry was held in terms of section 8(1) of the Customs Ordinance (Ordinance) by the 2nd Respondent on the same day and the 1st Petitioner was represented by an attorney-at-law. At the end of the inquiry the 2nd Res