Nnaudi Victor Nweke v The Director of Customs and Excise N.O.

The applicant, Nnaudi Victor Nweke, operated a business buying goods for resale. On 20 October 2000, while he was away on business, officers from the respondent's office seized goods from his residence at 3 Glamogen Road, Queens Park East, Bulawayo under notice of seizure No. 173620 D. The respondent alleged the goods were smuggled and had not been customs cleared. The goods were from container number CMBU 2227720, covered by Rail Advice Note Number 25009 and Bill of Lading Number DX BW 66764, which was fraudulently released from the shipping line at Manica Container Depot using a fraudulently acquired clearance form 170, causing prejudice to the fiscus of $234,011.47. The container was delivered to the applicant's residence by a driver from Container Depot, Bulawayo. The applicant made representations for release of the goods and furnished documents which he claimed proved the goods were properly imported, but the respondent rejected these as unrelated to the seized goods, stating they referred to importers in Harare with no link to the Bulawayo container.

• Whether the applicant complied with the mandatory notice requirements under the State Liabilities Act [Chapter 8:15] and section 196 of the Customs and Excise Act [Chapter 23:02]
• Whether the applicant discharged the onus of proving that the seized goods were properly customs cleared
• Whether the application was the appropriate procedural mechanism given the existence of material disputes of fact
• Whether the respondent was entitled to costs on an attorney-client scale under section 196(2) of the Customs and Excise Act

The application was dismissed. The applicant was ordered to pay costs on the attorney-client scale.

The binding legal principles established are: (1) Compliance with the mandatory sixty-day notice requirement under the State Liabilities Act [Chapter 8:15] and section 196 of the Customs and Excise Act [Chapter 23:02] is a prerequisite to instituting proceedings against state entities, and failure to comply is fatal to an application; (2) The onus rests on a person in possession of seized goods to prove on a balance of probabilities that such goods were properly customs cleared; (3) Where material disputes of fact exist that cannot be resolved on the papers, the matter must proceed by way of action rather than application; (4) In customs matters, courts may award costs on an attorney-client scale against unsuccessful applicants under section 196(2) of the Customs and Excise Act to protect public institutions sustained by taxpayers.

The court observed that it was entitled to draw inferences from the probabilities, noting that the container was destined for the applicant's address where imported goods that had not been cleared were found, and that the respondent appeared to have acted on detailed and reliable information. The court also made the observation that it was proper for public institutions sustained by taxpayers to recover all expenses in relation to defending such applications, providing the rationale for the attorney-client costs order beyond merely citing the statutory provision.

This case reinforces the mandatory nature of compliance with notice requirements under the State Liabilities Act when suing state entities in Zimbabwe. It confirms that customs authorities bear no obligation to release seized goods where the person in possession fails to discharge the onus of proving proper customs clearance. The case also demonstrates the court's approach to applications involving material disputes of fact in customs matters, holding that such disputes are properly resolved through action proceedings rather than motion proceedings. It affirms the power of courts to award attorney-client costs in customs matters under section 196(2) of the Customs and Excise Act, particularly where public institutions defending the fiscus are successful.