Barbara Gayle, Staff Reporter
BASHCO TRADING Company has lost its legal battle against the Revenue Protection Division (RPD) to recover loss of profit resulting from the seizure of 7,346 pairs of shoes.
In the motion brought in the Supreme Court, Bashco (formerly Costco Trading Co.) contended that in January last year RPD officers detained two containers of shoes after they arrived in the island from Canada. Notices of seizure were served on Bashco on February 10, 1999.
The Commissioner of Customs who was named as the respondent contended that the shoes were seized because they were counterfeit goods.
Attorneys Marcia Dunbar and Karen Stanley from the Attorney General's Department argued in the Judicial Review Court that the customs officers found shoes in one container bearing brand names of "Nike" and "Adidas". Customs officers acting on information also found shoes with brand names "Nike", "Adidas" and "Caterpillar" in the other container. The goods did not contain any words or marks indicating the country of manufacture and origin.
Bashco which was represented by David Muirhead Q.C. and attorney Priya Levers had sought an injunction to compel the said Commissioner of Customs and/or Officers of the Revenue Protection Division to return the property as set out in the Notice of Seizure. The applicant also sought an injunction to restrain the commissioner from selling, destroying or disposing of the goods.
It was contended that the seizure was without jurisdiction or in excess of jurisdiction and also that the seizure was not in compliance with the Merchandise Marks Act which required search warrants from a Justice of the Peace.
Senior Puisne Judge Justice Lloyd Ellis, in handing down judgment this month, held that the Commissioner of Customs was not in breach of the Merchandise Marks Act.
The judge in ruling in favour or the respondent said that section 14 (1) of the Merchandise Marks Act made it abundantly clear "that it is the goods which bear a trade mark which must have the country of manufacture marked thereon." The judge said it was not the bill of lading or other documents which should bear the place of origin or manufacture as contended by Bashco's lawyers.
The lawyers for the Commissioner had conceded that there could be injunctive remedy against the Crown in judicial proceedings. However, the judge said he did not think "that the concession was proper due to the fact that English Municipal Law "S.31 of the Supreme Court Act 1981 allows that what we have in Jamaica is a Rule of Court as to Judicial Review. That Rule of Court cannot erase the substantive law in S.16 of the Crown Proceedings Act."
The application was dismissed in its entirety. Costs were awarded in favour of the respondent.
