➥ CASE SUMMARY OF:
STITCH v. AG (1986) – SC
by PipAr Chima
Supreme Court – S.C. 88/1985
➥ JUDGEMENT DELIVERED ON:
Friday, the 12th day of December 1986
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ MINISTER MUST ACT FAIRLY WITHOUT PREJUDICE TO CITIZEN
The principle basic in all common law countries, including Nigeria, is that under the universally accepted Rule of Law, the Minister must act fairly and not to the prejudice of the citizen. – Aniagolu JSC. Stitch v. AG (1986)
⦿ MINISTER MUST DISCHARGE FUNCTION JUDICIOUSLY
A Minister is a public officer charged by the legislature of this country with the duty, of discharging a public discretion affecting, the citizens. He must discharge that function judiciously. – Aniagolu JSC. Stitch v. AG (1986)
⦿ DAMAGES IN DETINUE & CONVERSION DISTINCTION
Whereas an action for damages in detinue considers a return of the res in specie, an action for damages for conversion relates to the pecuniary damages only. – Karibi-whyte JSC. Stitch v. AG (1986)
Margaret Chinyere Stitch
Attorney-General of the Federation;
Board of Customs and Excise;
Attorney General of Ogun State;
O.O Onifade (Joined by Order of Court).
➥ LEAD JUDGEMENT DELIVERED BY:
Anthony Nnamezie Aniagolu. J.S.C.
⦿ FOR THE APPELLANT
– Mr. Ajayi, S.A.N.
⦿ FOR THE RESPONDENT
– Mrs. Olopade (1st Respondent);
– Mr. Osaje (2nd Respondent);
– F.T.O (4th Respondent).
➥ CASE HISTORY
The appellant had arranged her affairs and expended her resources and brought a car into the country, in a manner allowed by the Minister, and hereby qualified for an import licence. In bringing the car into the country she had calculated and expected that her liability for import duty would be 33 1/3% of the value of the car.
The Minister, presumably, knowing that legislation was being prepared to increase the import duty payable on cars with effect from 28th April 1982, deliberately refrained from performing his statutory duties so that the appellant would be subjected to the payment of duty at 500% which she was not liable to pay at the time she would have obtained her import licence in the ordinary course of business.
The central issue in this appeal concerns the exercise by a Minister of the Federal Government of Nigeria of his ministerial discretion – an exercise to which no reasons were attached – and whether the courts in order to do justice, can review that exercise of discretion the non-giving of reasons by the minister notwithstanding.
The High Court, in its judgment (Sowemimo, J.) found against the appellant holding that the duty on the vehicle must be the amount which according to the new law was payable on the day payment was tendered by the appellant. He held that this was in accordance with section 35 of the Customs and Excise Management Act, 1958. The Economic Stabilization (Temporary Provisions) (Customs Duties) Order 1982 having come into operation, he held the appellant was bound to pay duty at the new rate.
Appellant’s appeal to the Court of Appeal was dismissed on the ground that it had no merit.
➥ ISSUE(S) & RESOLUTION
I. WHETHER THE MINISTER OF COMMERCE ACTED LAWFULLY IN suspending the issuance of licence to the appellant even when the conditions of its issuance had been perfected?
RULING: IN APPELLANT’S FAVOUR.
I.A. In the first place the powers under section 3 (2) are restricted to a refusal to grant licence; a revocation of a licence granted, or a modification of a licence granted. It does not include a power to impose a suspension period in which consideration of import licence applications (whether to refuse, to revoke or to modify) is not to be countenanced. Section 3 imposes a duty on the Minister and/or his subordinates, namely, the Import Licensing Authority, which is dischargeable to the citizens of this country and the public at large. He has no power, under that section, to impose a moratorium on, or proclaim a dormancy of, the working of that section of the Finance Act of 1981. He has a public duty to consider applications and either refuse, or revoke, or modify, as the case may be. An unjustified refusal to discharge this duty could attract the prerogative writ of mandamus.
I.B. It was an improper exercise of the Minister’s discretionary power for him to suspend the issue of a licence to the appellant when the duty payable was 33 1/3 in order that the appellant might be made to pay, at a later date, duty charged at the rate of 500%, thus steeping her into an additional financial liability of about N13,000.00. It was unjust and retrospectively punitive. The legislature had not given to the Minister authority to levy that amount from the appellant.
➥ MISCELLANEOUS POINTS
⦿ RULING ON THE RELEASE OF THE CAR
With regard to Claim 3 which reads: “An order for the release of the said car to the plaintiff on the payment of the said sum”, the appellant is entitled to the possession of the car but the car the release of which the appellant seeks under that head of claim, is now virtually a wreck a derelict. Many of its parts have been sold by the 4th respondent (O.O. Onifade). Many are missing and the car had been, for sometime now, grounded, in the open, without a shelter and subject to the deleterious effects of the elements. For this court to order for the appellant to have delivered to her the car which she brought into the country on 3rd April 1982 would be virtually to order the impossible. But the car was physically there at the Tin Can Island Port as a second-hand car in good working condition. It was the Federal Government’s fault – Federal Government personified by 1st and 2nd respondents – that the appellant did not get hold of her car. Since the car cannot now realistically be physically delivered to the appellant, she must be entitled to receive from the tortfeasor an amount which will buy her a second-hand Mercedes Benz 280 saloon car in good working condition, with accessories as contained in the car she imported on 3rd April 1982.
➥ REFERENCED (STATUTE)
Section 3 Finance Act, 1981 No 2.
➥ REFERENCED (CASE)
⦿ MINISTER’S POWER NOT EXERCISED IMPROPERLY
Padfield (supra) was decided in 1966 and ten years later, in 1976, Laker Airways Ltd v Department of Trade (1977) Q.B. 643 decided that the exercise of the Crown’s prerogative being discretionary, the courts are entitled to see that it is not exercised improperly or mistakenly; and it would be improper to cancel the designation of the Airline, by use of the prerogative power, at a stage when all the necessary steps had been completed – a cancellation which threatened the subject with material loss.
⦿ MINISTER’S POWER IS NOT UNLIMITED
In Padfield & Ors. v. Minister Of Agriculture Fisheries and Food & Qrs. (1968) A.C. 997 it was held, inter alia, that where Parliament conferred a discretion on the Minister so that it could be used to promote the policy and objects of the Act which were to be determined by the construction of the Act, the issue was one of law for the courts; that although there might be reasons which would justify the Minister in refusing to refer the complaint in that case to a Committee of Investigations, his discretion was not unlimited and if it appeared that the effect of his refusal to appoint a Committee of Investigations was to frustrate the policy of the Act, the court was entitled to interfere.
⦿ COURTS WILL NOT BE SILENT EVEN WHERE THERE IS DISCRETION ON EXECUTIVE
The decision of the House of Lords in Attorney-General v. De Keyser’s Royal Hotel Limited (1920) A.C. 508 – dealing with the issue of payment of compensation by the Crown to a subject in respect of property requisitioned for the prosecution of the war – established the principle that in the protection of the property of the subject, the Crown was liable to pay compensation to the subject for the acquisition of the property, the exigencies of the war notwithstanding. Even amidst the clash of arms, they said, the courts would not be silent.
⦿ COURT WOULD INTERFERE WHERE POWER IS EXERCISED ARBITRARILY
Congreve v. Home Office (1976) Q.B. 629. In that case, on January 29th 1975 the Home Secretary announced that the colour television licence fee would be increased from £12 to £18 on April 1st and made an order under section 2(1) of the Wireless and Telegraphic Act 1949 to effect the increase. The Home Secretary, in accordance with his administrative practice when an increase in the fee was imminent, prepared special instructions for its agents who included, post office counter clerks, telling them that anyone applying in advance for the renewal of a licence which did not expire until March 31st or later should be told to reapply on or before April 1. On March 26th, the plaintiff, whose current licence expired on March 31, applied to the post office for a £12 licence. The counter clerk did not follow the Home Office Instruction; she issued him with a £12 licence which on its face would not expire until February 29, 1976. Some 24,500 licence holders were likewise issued with overlapping licences before April 1. The Home Office wrote to each holder of a £12 overlapping licence stating that unless the additional £6 was paid the licence taken out in advance of April 1 would be revoked. The plaintiff did not pay and was one of those who received the letter dated 11th November 1975 which threatened that unless the £6 was paid by December 1, the overlapping licence would be revoked and prosecution for the use of colour television proceeded with. The plaintiff issued a special indorsed writ claiming a declaration that the revocation of his licence would be unlawful, invalid, and of no effect. The High Court refused to make the declaration holding that the Home Secretary was entitled to revoke a licence under section 1(4) of the Act of 1949 and that the Home Office letters gave the licence holder open choices. On appeal, the appeal was allowed, the Court of Appeal holding that although the Home Secretary has undoubted discretion under Section 1(4) of the Wireless and Telegraphic Act, 1949 to revoke a licence the discretion was fettered to the extent that the courts would intervene if it was exercised arbitrarily or improperly; and in view of the fact that the licence issued to the plaintiff was a valid licence on the day it was issued and that there was nothing in the Act or the Regulations which prohibited the holding of overlapping licences, it was an improper exercise of the Minister’s discretionary power to propose to revoke a licence validly obtained as a means of levying money which Parliament had given the Executive no authority to demand. Accordingly, the court could and should intervene to declare that the proposed revocation of the plaintiff’s licence was unlawful, invalid, and of no effect.
⦿ WHERE LEGITIMATE EXPECTATION EXPECTED TO CONTINUE IS DISCONTINUED
Council of Civil Service Unions and Ors. v. Minister for the Civil Service (1984)3 All E.R. 935 where it was held, inter alia, that an aggrieved person was entitled to invoke judicial review, if he showed that a decision of a public authority affected, him by depriving him of some benefits or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy, either until he was given reasons for its withdrawal and the opportunity to comment on those reasons, or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representations against the withdrawal. It was further held that the appellant’s legitimate expectation arising from the existence of a regular practice of consultation which the appellant could reasonably expect to continue, gave rise to an implied limitation on the Minister’s exercise of the power contained in Art. 4 of the Civil Service Order in Council, 1982 namely, an obligation to act fairly by consulting the civil service staff before withdrawing the benefit of trade union membership.
⦿ ACTION IN CONVERSION VS ACTION IN DETINUE
In General and Finance Facilities Limited v. Cooks Cars (Romford.) Limited (1963) 1 W.L.R. 644 at p. 648, Diplock, L.J. (as he then was) differentiated action in conversion from action in detinue as follows: “There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue.”
⦿ VALUE OF GOODS IN ACTION FOR DETINUE
In Rosenthal v Alderton & Sons Limited (1946) 1 K.B. 374 at 377, the Court of Appeal in England said “In an action of detinue the value of the goods claimed but not returned ought, in our judgment, to be assessed as at the date of the judgment or verdict”.
➥ REFERENCED (OTHERS)