In The Supreme Court of Nigeria
On Friday, the 12th day of December 1986
Chinyere Stitch ....... Appellant
Attorney-General of the Federation
Board of Customs and Excise
Attorney General of
(Joined by Order of Court) ....... Respondents
Judgment of the Court
Anthony Nnamezie Aniagolu. J.S.C.
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 case (aptly described in a letter dated 19th December, 1985 from the Office of the Chief of General Staff as "pathetic") from which this appeal emanated from the Court of Appeal, was begun on 23 rd September, 1982 with a Writ of Summons, in the then Federal Revenue Court, in Suit FHC/L/102/1982 , issued by the appellant, Margaret Chinyere Stitch, against the Attorney-General of the Federation and the Board of Customs and Excise, The claim reads;
"The plaintiffs claim against the defendants is for:
"1. A declaration that the action of the Ministry of Commerce in suspending the issuing of import permits some three weeks before the passing of the
Economic Stabilisation (Temporary Provisions) Act 1982 on the 20th of April 1982
was calculated to subject the plaintiff's car which had entered Nigeria on the 3rd of April 1982 to the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1982 to which it would not have been subject at the time of importation if the import licence in respect thereof had been issued before the 19th of April 1982 in accordance with the established procedures of the Federal Ministry of Commerce.
2. A declaration that the plaintiff is only liable to pay customs duty in respect of the used Mercedes Benz Car Chassis No 123033-10-011229 the sum 6f
N 896.60 or such other sum based upon the rate of duty payable as at the 19th of April 1982.
3. An order for the release of the said car to the plaintiff on the payment of the said sum.
Issued at Lagos the 23RD day of September, 1982"
(Underlines are mine)
The facts of the case are largely not in dispute. The appellant, who is a legal practitioner, is married to a German national, and lives at Ubakiri Road,
Mbieri, Owerri, Imo State, and while in Western Germany she bought a used 1976 Model Mercedes Benz 280 Saloon car which she shipped to Nigeria on 22nd February, 1982. Exhibit A is the "Shipping Order". The car arrived at the Lagos harbour on 3rd April, 1982 by the vessel " Warendorp ". Exhibit B is the bill of lading while Exhibit c is the certificate of entry.
The appellant had Joki (Nig.) Ltd of Commercial Road, Apapa, as her shipping agent. While the shipping agent was dealing with the Customs, the appellant went over to the Ministry of Commerce to obtain the import licence the laid down conditions for which she already knew, and fulfilled, before that date. I shall return to this in due course.
At the Ministry she made her application for import licence which she said she expected to receive the same day or the next. That was not to be. Instead, she was told after submitting her application that there was "a directive" that no import licence was to be issued. She was naturally disturbed and went and complained to the Permanent Secretary who told her to return the next day. She returned only to be told by the Permanent Secretary that she should be regularly coming to the Ministry as they would then soon resume the issue of import licences. It is not in dispute that the issue of import licences was then suspended. It is to be noted that this was admitted in paragraph 6 of the statement of defence of the 1st respondent.
It was not until 29th April 1982 that import licence was issued to her. In the meantime, on 20th April 1982 the then
Economic Stabilization (Temporary Provisions) (Customs Duties) Order 1982 was promulgated. This Order increased the rate of duty payable on the type of car the appellant imported, from 33l/3 % to 500%
On the basis of 33 1/3 %, the duty which the Board of Customs assessed for the appellant to pay on 13th April 1982 was
N 1,449.22. (See Exhibit E.) She presented a certified cheque for that amount which she presented to the Customs, but the Customs would not accept it until she produced the import licence After the import licence was issued to her on 29th April 1982, she represented the certified cheque with it but the Board of Customs told her she would have to pay, not the N I,449.22 as they originally assessed, but a SUM, of
N 14,500.00 on the basis of the 500% as introduced by the new Order of 1982. The appellant refused to pay this new amount arguing that the car had arrived in the country before the 20th April 1982 Order was made. The Customs thereupon accepted the certified cheque but stated that it was only accepted as part of the N 14,500.00 duty. A receipt (Exhibit E was issued to the appellant for that amount regarded as part payment. The appellant swore that she came to the conclusion that the Federal Government (1st respondent) deliberately suspended the issue of import licence to her when she applied for it, in order that she should be caught by the new Order. She argued that the government had no power to do so and that the duty payable was the rate of duty applicable when the car arrived in Nigeria.
Not having paid the full 500% duty charged, the Board of Customs (2nd respondent) refused to release the car to the appellant. With this refusal, the appellant stepped into a quagmire of frustration the nature of which was laid bare in evidence before this court, both oral and by affidavit.
This was how the new evidence came about. On 16th June 1986, this appeal was called up for hearing by this court. Mr. Osaje, of counsel, appeared for the Attorney-General of the Federation and the Board of Customs (1st and 2nd respondents) while Mrs. Olopade, of counsel, appeared for the Ogun State Government. During the proceedings,
Mr.Osaje, of counsel, revealed to this court that the Mercedes Benz car in dispute was no more available as it had been disposed of to the Ogun State Government by the Port Commandant of the Tin Can Island Port, Lagos, apparently on 23rd May 1985. Mrs.
Olopade, counsel for the Ogun State Government, confirmed that the car was sold to the Ogun State Government but stated that the said government in turn sold the car to one Mr. 0.O. Onifade who was working under the Lagos University Teaching Hospital, on 24th June 1985.
Intent on seeing that justice was done in this case no matter how difficult and tedious the road to it may have become, this court issued an order for the appearance of Mr. O. O. Onifade with the vehicle in question. In addition, the court formally joined the Attorney-General of Ogun State representing the
Ogun State Government and Mr. O. O.
Onifade, as parties to the suit. Mr.
Onifade, whose full names are
Olayiwola Olaniyi Onifade, appeared but without the car. He pleaded that the car was not in good working condition and that he had left it in a mechanic's workshop from where he had been selling the parts of the car, piecemeal. He had cannibalized it.
On hearing this, the court immediately made an order that the Registrar of this court together with counsel and parties should go and view the vehicle and record its state together with all the parts of the car sold or missing. The order was carried out and the Acting Senior Registrar of this court, Mr. M. A.
Toyin Keshinro, prepared a list of the parts of the vehicle found missing in Exhibit 6. These included the seats of the car both front and back; the head lamps; the four tyres; the four rims; the battery; the bumpers both front and back and the valve cover of the engine. The car was repainted with olive green colour, different from its original colour. Six photographs taken of the remnant of the car were put in evidence as Exhibits MCS 2 to 7.
The affidavit evidence sworn to by several individuals and the appellant made for heavy reading, to one's discomfort. These brought in, apart from the appellant and the 4th respondent, such other people as Mr.
Lateef Ayinla Sowade, a Senior Executive Officer of the Protocol and Ceremonial Division of the Office of the Military Governor of Ogun State; Mr.
O.A. Adesida, counsel attached to the Legal Division of the Department of Customs and Excise; Mr. Fela Sharafa of 49, Aina Street, ojota, Lagos, the Co-owner of the mechanical workshop at Plot 61, Imam Dauda Street Off Eric Moore Road, Surulere, where the vehicle was parked; Mr. Ganiyu
Kazeem, a mechanical technician employed by Leventis Motors, Apapa, Lagos; and Abayomi Onifade, who is studying at the Federal Government College, Ijanikin, Lagos. The contest was all as to the mechanical state of the vehicle, whether or not it was deliberately being presented as being in a non-working order. As it turned out, the outcome of this appeal did not depend on the assertions in those conflicting affidavits.
After the evidence of the appellant before the trial judge and the closure of her case, the defence called two witnesses, namely, Nwaononian
Enyinnaya Onyeike, a Principal Collector of Customs and Excise and Itekena Abel-Taria, a Senior Superintendent Collector of Customs attached to the Legal Section at Tin Can Island Port,
Apapa. The former told the court that he was in charge of the vehicle release section at Tin Can Island Port and that in May 1982 the appellant complained to him that the Customs refused to release the car to her. On enquiry, he found from the particulars of the car given to him, that the appellant should pay 500% duty on the value of the car, instead of 331/3% which she had paid. On a question why she should pay500%, witness claimed that as from 20th April 1982 the rate of duty on the type of car she brought in was 500%. The latter testified to the same effect confirming that the appellant came to the Tin Can Island to clear her car but that the car was not released to her because of a Dispute as to the customs duty payable.
Evidence was taken by this court from
Olayiwola Olaniyi Onifade the 4th respondent. He swore that he bought the Mercedes Benz from Ogun State Government on the 24th June 1985 for the sum of N 7,201.00. He had information that government was selling a number of seized cars. The price he paid was the price fixed by the Office of the Chief of Staff.
At the conclusion of the exercise this court felt that the best thing to do was to preserve the res until the determination of the appeal. Accordingly, it was ordered that the vehicle should be preserved in the state in which it was. No further sale of the parts of the car should be carried out by the 4th respondent until the determination of the appeal.
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. The lead judgment delivered by Uthman Mohammed, J.C.A., was concurred to, by Ademola and Nnaemeka-Agu, J.C.A. In concluding his judgment Mohammed, J.C.A., held as follows;-
"I agree that the submission of Mr.
Osaje, learned counsel for the respondent that the appellant has failed to prove that the Minister's refusal to issue the licence to her at the time she submitted her application was arbitrarily (sic) made. In the end I am quite satisfied that the trial court was right in dismissing the action because the appellant has failed to establish a right to be issued with an import licence at the time she applied for one."
It was from this judgment that the appellant has appealed to this court complaining of several misdirections and error in law. In sum, the grounds of appeal argued boil down to one issue, namely, whether the Ministry of Commerce had power to suspend the issue of import licence to the appellant and if so, whether the exercise by the Ministry of such a power to suspend was arbitrarily made, in all the circumstances.
The starting point of an appreciation of the issues involved in this appeal must be with the pleadings which were earlier ordered and filed. Particularly salient to the appellant's contention are paragraphs 5 to 18 of the statement of claim which read:
"5. Although importation of motor cars is subject to import licence issued by the Ministry of Commerce the Ministry has for several years operated a policy with regard to the conditions under which it would grant an import licence for the importation of motor cars by private individuals. These conditions are:
(i) That the car should actually have arrived in a Nigerian port.
(ii) That provision of foreign exchange by the Nigerian Government would not be required in connection with the purchase price of the car.
(iii) That the prospective importer of the car should have been abroad in foreign country from which the car was being imported.
6. The Ministry of Commerce has always issued import licences as a matter of course in respect of motor cars which have satisfied these conditions and the said Ministry is aware that Nigerians have arranged their affairs accordingly and that in reliance upon this policy Nigerians bring motor cars all the way from overseas to the Nigerian ports confident of being issued with an import licence when the aforesaid conditions are satisfied.
7. The plaintiff had complied with all the said conditions set forth in paragraph 5 herein and avers that she was therefore entitled to be issued with an import licence in respect of the said car.
8. The plaintiff submitted her application for an import licence for the said car on the 13th of April 1982 and expected the same to be issued as a matter of course.
9. The plaintiff was however informed by the staff of the Ministry that a directive had been issued to the effect that the issue of import licences be suspended until further notice.
10. The plaintiff avers that at the time when she submitted her application for the issue of
an import licence in respect of the said car, the said car was subject to import duty of 33 1/3% under the provisions of the Finance Act 1962 which was then in force,
11. The import duty payable upon the car as given to the plaintiff by the officials of the 2nd defendant was N I, 449.22 and the plaintiff on the 13th of April 1982 wrote out a cheque for the said amount in favour of the 2nd defendant. The plaintiff on the same day paid the handling charges in respect of the importation of the car.
12. The 2nd defendant's servants did not however accept the cheque until May 1982 when they issued an official receipt
13. The plaintiff complained to the Permanent Secretary at the Ministry of Commerce who confirmed to her that it had always been the policy of the Ministry to issue import licences for the importation of private cars once the applicant had complied with all the conditions set forth in paragraph 5 herein.
14. The plaintiff continued to press for the issue of an import licence in respect of the said car, but it was not issued to her until the 29th of April 1982 after the making of the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1982 on the 20th of April 1982.
15. Upon presenting the said import licence to the 2nd defendant, the 2nd defendant's officials asserted that under the provisions of the Economic Stabilisation (etc.) Order aforesaid, the plaintiff would now be required to pay duty at the rate of 500% on the said car, and that this would amount to some 814,500.00.
16. The plaintiff avers that the Federal Ministry of Commerce deliberately delayed the issue of the import licence to the plaintiff knowing fully well that new and heavier import duties were to be prescribed by the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1981 (sic) which was then being prepared and with the intention that the plaintiff should not pay the existing customs duty in accordance with the existing legislation but so that the plaintiff might be made to pay duty at the much higher rate that was to be prescribed in the future by the said Order then in preparation,
17. The 2nd defendant thereafter detained the said car, and refused to release the same until the plaintiff had paid duty at the rate of 500% aforesaid, and threatened to sell the car to members of the public should the plaintiff fail to do so promptly.
I8. The plaintiff avers that having imported the said car into Nigeria on the 3rd of April 1982, she is entitled to pay duty on the same at the rate of 33 1/3% then in force, and having imported the said car on that basis and been prevented from obtaining an import licence due only to the arbitrary suspension in issuing the same, it would be unjust and retrospectively punitive to expect her to add an additional N 13,100.00 prescribed by a law which did not exist at the time she imported the car into Nigeria."
Be it noted and remembered that paragraph 5 sets out the conditions under which an import licence for the importation of a motor car by a private individual would be granted by the Minister of Commerce while paragraphs 6 and 7 averred that the appellant had satisfied those conditions.
The statement of defence, paragraph 4,
of the Federal Government admitted paragraphs 5 and 6 of the statement of claim. In paragraph 5, the Federal Government averred that it was not in a position to admit or deny paragraph 7 of the statement of claim which alleged that the appellant had satisfied the conditions entitling her to be issued with an import licence. For easy reference, the statement of defence of the Federal Government (1 st respondent) which is pretty short, is set out hereunder as follows:
"1. Save And Except as herein expressly admitted the 1st defendant denies each and every allegation of facts contained in the plaintiff's statement of claim as if the same were specifically set out and traversed seriatim.
2. The 1st defendant admits paragraph 2 of the statement of claim only to the extent that it is sued as representing the Government of the Federal Republic of Nigeria.
3. The 1st defendant denies paragraphs 3, 4, 7, 10, 11, 12, 16, 17, 18, 19.
4. With reference to paragraph. 5 & 6 of the statement of claim the 1st defendant admits the allegations therein.
5. The 1st defendant is not in the position to admit or deny paragraph 7of the plaintiff's statement of claim and puts the plaintiff to the strictest proof thereof.
6. With reference to paragraphs 8 & 9 of the statement of claim the 1st defendant avers that at the time the plaintiff submitted her application for an import licence on the 10/4/82 a directive had already been given by the Federal Government to suspend the issue of all import licences.
7. The 1st defendant is not in the position to admit or deny paragraph 13 of the statement of claim and puts the plaintiff to the strictest proof thereof.
8. The 1st defendant admits paragraph 14 of the statement of claim only to the extent that the plaintiff was issued with an import licence by the Ministry of Commerce on the 29th April, 1982.
9. The 1st defendant will contend at the trial that the plaintiff is not entitled to any declaration whatsoever.
10. The 1st defendant will rely on all other relevant documents, books, and extracts related to this suit.
11. The 1st defendant will contend at the trial that the plaintiff's action is speculative, frivolous, and an abuse of the court process."
The Board of Customs & Excise (the 2nd respondent) filed a blank denial of virtually everything the appellant had alleged in her statement of claim. Apart from paragraphs 2, 12, and 15, the 2nd respondent virtually denied everything including the obvious ones admitted by the Federal Government.
It was a pleading filed without regard to, or a reckless disregard of, the truth, unworthy of a government department which is mindful of the rights of the citizens of this country. This statement of defence of the Board of Customs & Excise reads:
1. Save And Except as herein expressly admitted the second defendant denies each and every allegation of facts contained in the plaintiff's statement of claim as if the same were specifically set out and traversed seriatim.
2. The second defendant admits paragraph 15 of the plaintiff's statement of claim.
3. The second defendant admits paragraph 12 of the statement of claim only to the extent that it did not accept the cheque but avers further that it did so because the plaintiff did not produce the import licence which is a prerequisite for acceptance of such cheque.
4. The second defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, and 19 and puts the plaintiff to the strictest proof thereof.
5. The second defendant admits paragraph 2 of the statement of claim only to the extent that it is charged with the responsibility of regulating and enforcing the regulations relating to importation of goods into Nigeria.
6. The second defendant is not in a position to admit or deny paragraph 1 of the plaintiffs statement of claim.
7. In further denial of paragraph 11 of the plaintiffs statement of claim the second defendant will contend at the trial that the plaintiff was given an ex-factory price (i.e. The value of car) and not the duty payable on the car.
8. In further denial of paragraph11 of the plaintiffs statement of claim the second defendant will also contend at the trial that before any bill of entry is accepted for payment by the second defendant on imported cars the plaintiff is required to submit among other documents, import licence, which the plaintiff did not submit in this case on or before 13th April, 1982.
9. In further denial of paragraph 17 of the plaintiff's statement of claim the second defendant avers that it did not detain the plaintiff's car as there was no detention notice served on the plaintiff in respect of the car and that what was actually issued to the plaintiff was an underpayment notice.
10. In further denial of paragraph 18 of the plaintiff's statement of claim the second defendant avers that for the purpose of calculation customs duty payable on any imported goods under the Customs and Excise Management Act 1958 the rate of duty chargeable is that which is in force at the time of payment of duty.
11. The second defendant will contend at the trial that the plaintiff is not entitled to any declaration whatsoever.
12. The second defendant will also rely on all other relevant documents, books and extracts related to this suit.
13. The second defendant will also rely at the trial on all legal, equitable and statutory defences.
14. The second defendant will contend at the hearing that the plaintiff's action is speculative, frivolous and an abuse of court process."
The Board of Customs thus admitted
(a) Paragraph 2 of the statement of claim that the Attorney-General of the Federation represented the Federal Government (an innocuous fact prescribed by the Constitution of this country),-
(b) Paragraph 12, that the Board of Customs & Excise did not accept the appellant's cheque for the NI, 449.22 until May 1982 (a non-contentious fact); and
(c) Paragraph 15, that the appellant would have to pay
N 14,500.00 under the new Economic Stabilization Order of 1982 (plain, by the provisions of the new Order).
The attitude of the Board of Customs & Excise appears to be:
give her no quarter; deny everything.
This is neither justice nor noble, and is entirely to be deprecated.
The parties filed their briefs of argument. That of the appellant was, in synopsis, that the Federal Ministry of Commerce deliberately delayed the issue of the import licence to the appellant knowing fully well that new and heavier duties were to be prescribed by the Economic Stabilization, (Temporary Provision) (Customs Duties) Order 1982 which was then being prepared with the intention that the appellant should not pay the existing customs duty in accordance with the existing regulations, but that she might be made to pay duty at a much higher rate that was to be prescribed in the future by the said Order then in preparation. The appellant, the argument continued, 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 action of the Minister, she continued, was an abuse of power because he improperly suspended the performance of his duty with the ulterior and improper motive of making the appellant pay higher import duty to which she was not properly and lawfully subject.
Contrary to what the Court of Appeal held, she continued, the Minister had in fact issued her with a licence but after a deliberate delay in order to make her pay higher duty.
The 1st and 2nd respondents (the Federal Government and the Board of Customs & Excise) argued together, that the Minister exercised his power under
section 3(2)(a) of the Finance Act 1981 in refusing to issue an import licence to the appellant. The period of delay from the date the appellant submitted her application to the date she was issued with a licence was within the power of a Minister under the section as there was no prescribed period when licences must be issued. The processing of applications in the Ministry of Commerce was, they continued, administrative and there was no evidence of any deliberate delay which affected the appellant alone. They further argued that the Minister's action could not be said to be arbitrary towards the appellant since all applications like that of the appellant, were treated in the same way. They concluded that since at the time the appellant presented her papers to the Board of Customs the Economic Stabilization Order had come into effect, the appellant should pay the duty prescribed by that Order.
The case submitted on behalf of the
Ogun State (the 3rd Respondent) was that the 3rd respondent's (Ogun State Government) contention was short, namely, that on 4th June 1985, the
Ogun State Government bought and paid for the Mercedes Benz car as a bona fide purchaser for value without notice of any court action pending in respect of the car or any court order restraining the sale or the purchase of the vehicle. As a matter of fact, it was contended that there appeared to be, at the time of the sale to the Ogun State Government, no court order of injunction restraining the Federal Government and the Board of Customs from selling the vehicle. The Ogun State Government further argued that although an appeal had been lodged to the Supreme Court, it was trite law that the notice of appeal to the Supreme Court did not amount to a stay of execution of the judgment of the Court of Appeal. The Court of Appeal having ruled that the appellant was subject to pay the new rate of duty under the new Economic Stabilization Order of 814,500.00, no authority, except the Supreme Court, was competent to waive that decision and order the release of the vehicle to the appellant on payment of a lesser amount. The appellant, having failed to pay the said sum of N 14,500.00 and the judgment of the Court of Appeal not having been stayed, there was nothing restraining the Federal Government and the Board of Customs from disposing of the vehicle according to laid down regulations.
The Ogun State Government concluded its argument saying that the appellant did not consider it proper to get a stay of execution of the judgment of the Court of Appeal. Rather, she employed other means to circumvent that judgment and obtained a release order of the vehicle from the Military Commandant of the Tin-Can Island Port on 21st May 1986 without paying the sum considered due and payable by the Court of Appeal which sum had not been reviewed by a higher court. The position was therefore that at the time the Federal Government sold the vehicle to the Ogun State Government it was not restrained to do so and it actually did so under the existing regulations. Accordingly, the position of the Ogun State Government was that of a bona fide purchaser for value without notice of any adverse interest.
The 4th respondent (Mr. O. O. Onifade) made a brisk work of his own case in his own brief. His short argument was that he bought the Mercedes Benz car model 280E from the Ogun State Government on 24th June 1985 without notice of any litigation or any court order restraining sale of the said car. He argued that he had spent N 30,000.00 on the car to bring it to a motorable condition. He had installed an air-conditioner and a cassette player. He had sold parts of the car to "itinerant buyers" whose addresses could not be traced, before notice of this appeal was received by him. The total amount he has realised from the sporadic sale was 86,500.00. He contended that the engine of the car was completely bad. In all the circumstances of the case, he concluded, it would not be right for this court to order him to return the "scrap" to the appellant or anybody else.
The powers of the Minister of Commerce - the Minister charged with responsibility for matters relating to commerce -for import licensing, appear to derive from the Finance Act, 1981 No 2, section 3 of which enacts that:
"3. (1) The Import Licensing Authority shall in respect of goods which may be imported only under a licence, by notice in the Gazette, give directions relating to the grant of special licences and in particular, but without prejudice to the generality of the foregoing, any such direction shall provide for -
(a) the form and manner in which applications shall be made; and the fee not exceeding N50 payable in respect of every application;
(b) the information to be furnished with such application; and
(c) The form and duration of licences.
(2) The Import Licensing Authority may -
(a) refuse to grant a licence without assigning any reason for such
(b) at any time revoke any licence for any contravention of this Act;
(c) at any time modify any licence either on application by the licensee or where circumstances so warrant.
(3) In this section -
"Import Licensing Authority" means such person or persons as may be designated by the Minister charged with responsibility for matters relating to commerce by notification in the Gazette from amongst the officers in his ministry appointed to carry out duties in relation to commerce in the Federation or such other person or persons as the Minister may be notification in the Gazette designate in that behalf;
"Licence" means either -
(a) a specific licence granted to an importer authorising him to import from a territory or territories specified in the licence of (sic) goods of a description and quantity specified in the licence; or
(b) a special licence granted to an importer authorising him to import goods generally or with specified exceptions from a territory or territories specified in the licence."
There is no dispute that had the appellant been granted import licence on 3rd April 1962 when the vehicle landed in Lagos or at anytime before the coming into force of the Economic Stabilization (Temporary provisions) (customs Duties) Order 1982 on 20th April 1982, the duty she would have paid on the vehicle would have been 81,449.22 and that the deliberate suspension of the issue of the import licence to the appellant, occasioned her anextra financial liability and detriment of the tune of over
It is to be observed that by section 3(2) (a), (b) and (c) of the Finance Act, 1981, No 2 the Import Licensing Authority (defined herein above) and, a fortiori, the Minister, have powers, as limited in that subsection to:
(a) refuse to grant licence without assigning any reason for such refusal;
(b) at any time revoke any licence for any contravention of the Act; and
(c) at any time, modify any licence either on application by the licensee or where circumstances so warrant.
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.
Since the adoption of the republican Constitution by this country, it is
recognised that the principle that mandamus does not issue against the Crown has no more basis in Nigeria, under its Constitution (See: Bashir Alade
Shitta-Bey v. The Federal Public Service Commission, (1981)1 S.C. 40.)
The legal argument put forward on behalf of the 1st and 2nd respondents, first by Mr. Osaje and later by Miss
Akerele, appears to be, in sum, that the Minister, under section 3 of the Finance Act, 1981, had unfettered power to grant or refuse import licence, with or without assigning reasons. So forcefully were they asserting the absolutism of the Minister's powers that one gathered the impression that they were virtually saying that the Minister's discretionary power was unchallengeable.
But that, clearly, is not so in law. The discretionary power of the Minister under section 3 of the Finance Act,1981 is clearly within the reviewable jurisdiction of the courts whether the Minister failed to exercise his discretion; or refused to exercise the discretion; or misused the discretionary power, and whether he gave reasons for the exercise of his powers or failed to give reasons for the exercise, it being a principle established by the courts that once a prima facie case of misuse of power had been established, it would be open to the courts to infer that the Minister acted unlawfully even if he declined to supply a justification at all, or supplied a justification which is untenable in law. 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.
The courts have inclined, over the years, to the protection of the rights of the citizen even in times of war when the defence of the realm had all been paramount. 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.
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.
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.
Perhaps the case nearest to the instant case on appeal is Congreve v Home Office (1976) Q.B. 629. In that case, on January 29 th 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 31 st 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.
The arguments of counsel for the 1st and 2nd respondents have, indeed, taken the form of that of the Home Office in Congreve (supra) in which the Home Office claimed that the Secretary of State had an unfettered discretion to grant or withhold a licence unless the refusal was wholly arbitrary. Reliance might have been placed on what had been said in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948)1 K.B. 223 and
Penfield (Supra ) regarding judicial control over the exercise of executive powers. But these were carefully gone into in Congreve (supra) and the argument in favour of the unfettered discretion of the Secretary of State roundly rejected.
It has to be remembered that the appellant is a Nigerian citizen and as had been shown earlier, she had relied on the conditions laid down by the Minister for importation of the type of car she brought in. She had fulfilled those conditions. There was no denial that those conditions were the conditions applicable to the appellant's case and that the appellant had fulfilled them. Was the appellant who was returning home to her country from a sojourn into a foreign land, not entitled to rely upon the word of the Minister of her country that if she fulfilled the conditions put out by the Minister, she would be entitled to the benefits of that fulfilment? Would those conditions put out to the whole world by the Minister not amount (to say the least) to a promise to the appellant that if she fulfilled those conditions the Minister would act in the way therein prescribed, namely, that she would be entitled to bring into Nigeria her car paying in respect thereof the prevailing customs duty? I must answer these questions in the affirmative, just as such a question was answered by the Privy Council in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983)2 A.C. 629 referred to us by appellant's counsel. In that case the appellant who was born in China entered Hong Kong illegally from Macau in 1967. In 1976 he was removed to Macau but re-entered illegally into Hong Kong shortly afterwards and remained. By 1980 he was a part-owner of a small factory in Hong Kong. In October 1980 the government announced changes in its immigration policy. It abandoned its old policy whereby illegal entrants had been allowed to remain in Hong Kong once they had reached without being arrested. Now it stated that those who had entered illegally would be repatriated. It gave power to the Director of Immigration to make removal orders against them. The announcement created fears among the illegal entrants living in Hong Kong who had entered from Macau and who were of Chinese origin that they would be repatriated to China. On their petitioning the Governor, a Senior Immigration Officer made an announcement on the government policy which it was intended should be applied to them. That included the statement that each illegal entrant from Macau would be interviewed and his case "treated on its merits".
Having been questioned by an immigration official, the appellant was detained and the Director of Immigration then made a removal order against him without giving him an opportunity of making any representations as to why he should not be removed. The applicant applied to the High Court for orders of
certiorari to quash the removal order and prohibition restraining the Director from executing it. The Court of Appeal granted an order of prohibition preventing the Director from executing the removal order until he had given the appellant an opportunity to be heard.
On the Attorney-Generals appeal to the Judicial Committee of the Privy Council, the Privy Council dismissed the appeal holding that where a public authority charged with the duty of making a decision, promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided that the implementation did not conflict with the authoritys statutory duty. Accordingly, assuming that an alien had no general right to be heard before being deported, the implementation of the promise to interview each illegal immigrant and decide each case on the merits required the appellant to be given opportunity to state his case and the failure to ask him whether he wished to make representations why he should not be removed was a sufficient ground for setting aside the decision. Consequently, the Privy Council substituted for the order of prohibition an order of
certiorari to quash the decision of the Director of Immigration.
If in that case an alien who had no general right to be heard - being an alien, was held by the court to be entitled to rely upon the promise not to deport him without his being heard, how much more, in the instant case on appeal, where the citizen is entitled as of right as a Nigerian citizen to rely upon the published conditions set by the Minister of Commerce. It is sometimes said that foreigners sometimes enjoy more benefits in our country than citizens, but that is a situation which the citizens of this country must regard as intolerable. 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 unction judiciously.
It was the same principle that was followed in 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. The Minister's failure to consult the civil service prima facie entitled the appellant to a judicial review of the Minister's instruction.
The rationale which I gather from these decided cases is that a government in which the citizen is entitled to repose confidence and trust, is not expected to act in breach of the faith which it owes to the citizen, and if it does so act, the courts will intervene.
The right of the appellant in this case to be issued an import licence, on terms prescribed by the Minister on compliance with those terms, had vested. It was the right of the citizen which could not be ignored In Congreve (supra) Lord Denning was very mindful of that citizens right when at page 649 he stated:
"Her Majesty's subjects are not to be delayed or hindered in the exercise of that right except under the authority of Parliament. The statute has conferred a licensing power on the Minister but it is a very special kind of power. It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect
money for the revenue. It is a ministerial power which is exercised automatically by clerks in the post office. They cannot be expected to exercise discretion. They must go by the rules. The simple rule as known to the public - is that if a man fills in the form honestly and correctly and pays his money, he is to be issued with a licence."
Counsel for the 1st and 2nd respondents had argued that the order suspending the issue of licences was a general one affecting all persons seeking import licence and was not directed against the appellant only. The rest of those affected, they argued, were not complaining. I agree with Mr. Ajayi, S.A.N. that this is completely irrelevant. The fact that the order was general could not make it right if in fact it was wrong, as, indeed, it was wrong, in relation to the appellant.
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 331/3 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 N 13,000.00. It was unjust and retrospectively punitive. The legislature had not given to the Minister authority to levy that amount from the appellant.
Accordingly, this appeal must be allowed and is hereby allowed. The judgment of the Court of Appeal delivered on 26th November 1984 is hereby set aside and in its place Claims 1 and 2 of the appellants claims succeed. The appellant is entitled to declarations claimed in those two heads of claims against the 1st and 2nd respondents only, that is to say, against the Attorney-General of the Federation and the Board of Customs and Excise.
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 3 rd April 1982.
Accordingly, in respect of Claim 3, it is hereby ordered that that head of claim be remitted to the trial Federal High Court, 5 Lagos, with these Directions:
(i) to take evidence as to what a second-hand Mercedes Benz 280 saloon car of the type brought into the country by the appellant on 3rd April 1982, the subject-matter of these proceedings, will cost to purchase now and award the appellant the amount found; and
(ii) the parties will be at liberty to call whatever evidence they consider necessary for the purpose of determining the present cost or value of the car as ordered in (i) above.
The appellant is entitled to all the costs of these proceedings, in all the courts, hereby assessed and adjudged against the 1st and 2nd respondents as follows:-
(i) in the Federal High Court N200.00
(ii) in the Court of Appeal N 250.00
(iii) in this court N300.00
Judgment delivered by
Kayode Eso. J.S.C.
I agree with my learned brother,
Aniagolu J.S.C. that this appeal be allowed. The case features the scope of administrative law which usually is the law that relates to the discharge of functions of a public nature in government and administration.
Thereunder the powers of the Minister who otherwise would have hidden under the cloak of "The king can do no wrong" are subject to the court.
Until about three decades ago, administrative law (as distinct from
droit administratif , which is a separate body of rules relating to administrative authorities but applied in special administrative courts and which thus defined did not exist in England) was not well developed probably as Lord Reid said in Ridge v.Baldwin 1964 A.C, 40; at 70, it was not needed.
However to come to the instant case, a citizen for whom ignorance of the law is no excuse, is only supposed to know current law and not anticipatory law that would be detrimental to his rights.
The appellant, as my learned brother has said in his lead judgment, relied upon the laws of her country. She bought the car in question upon the current law that she would be liable to a certain customs duty. Upon her arrival, the Minister delayed issuance of a licence to her. The rapidity with which the car changed hands and parts sold to the so-called itinerant purchaser does no credit to the respondents.
Important is the order to be made as the car cannot be put in specie. It is a notorious fact that the value of the car at the time of the dereliction by the Minister could hardly buy any part of it now. I therefore abide by the order made in the judgment of my learned brother Aniagolu J.S.C.
Judgment delivered by
Muhammadu Lawal Uwais. J.S.C.
I have had the opportunity reading in draft the judgment, read by my learned brother, Aniagolu, J.S.C. and I entirely agree that the Minister of Commerce acted wrongly in suspending the issuance of import licence generally an act for which he had no power under any statute and thereby causing the 2nd respondent to charge the appellant a higher rate (500%) of customs duty than (the 33 1/3%) she would, have paid, if the suspension had not taken place. I therefore have no difficulty whatsoever in granting the first and second arms of the appellant's claim, viz -
1. A declaration that the action ; of the Ministry of Commerce in suspending the issuing of import permits some three weeks before the passing of the Economic (Temporary Provisions) Act, 1982 on the 20th of April, 1982 was calculated to subject the plaintiff's (appellant's 1, car which had entered Nigeria on the 3rd of April, 1982 to the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order, 1982 to which it would not have been subject at the time of importation if the import licence in respect thereof had been issued before the 19th of April, 1982 in accordance with the established procedures of the Federal Ministry of Commerce.
2. A declaration that the plaintiff (appellant) is only liable to pay as customs duty in respect of the used Mercedes Benz Car Chassis No.123033-10-011229 the sum of
N 896.60 or such other sum based upon the rate of duty payable as at the 19th of April, 1982.
The third arm of the appellant's claim is for -
"3. An order for the release of the said car to the plaintiff (appellant) the payment of the said sum."
Although when the car arrived by sea at Apapa Wharf it remained in the possession of the 2nd respondent - the Board of Customs and Excise, pending the issuance of Import Licence and payment of customs duty, we have heard additional evidence in this court that whilst this appeal was pending, the car had been sold as overtime goods to the 3rd respondent Ogun State Government, which in turn sold it to the 4th respondent. This supervening event had therefore introduced a new element to the appellant's claim for an order that the car should be released to her by the 2nd respondent. If the car had not been sold and had remained in the possession of the 2nd respondent no difficulty would have arisen in this court making the order sought.
Now the misappropriation of goods may result from a number of facts and there are certain differences in relation to damages between actions for conversion and detinue. See paragraph 986 of McGregor on Damages, 13th Edition . We have reached the
conclusion in this case that it will not be in the interest of justice to make the order for the release of the car because it has been cannibalized and therefore is not the same as the car that the appellant sought to be released to her when she brought the action on 23rd September, 1982.
It is necessary therefore to examine the nature of the appellant's claim in asking for the release of the car. When the appellant's action was brought the car was in possession of the 2nd respondent and the appellant's claim could only be based on detinue. But at the time we heard the appeal, following the sales to
the 3rd and 4th respondent, conversion of the car by the 2nd respondent had taken place. The question then is: is the appellant's claim in detinue or conversion? This question has to be answered before this court can decide on the remedy to be awarded the appellant.
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 1atter 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
I accept this exposition of the law. It follows therefore that the appellant's cause of action in this case is based on
detinue and not conversion, which took place long after the action was instituted and the decision of the trial court given.
As already pointed out there are differences in the nature of damages to be awarded in either cause of action in conversion or cause of action in
detinue. Diplock, L.J. dealt with the differences in the General And Finance Facilities Limited case (supra) where he observed as follows on pp. 649 - 650
"The action for conversion is a purely personal action and results in a judgment for pecuniary damages only. The judgment is for a single sum of which the measure is generally the value of the chattel at the date of conversion together with any consequential damage flowing from the conversion and not too remote to be recoverable in law ...............
On the other hand the action in
detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his
In the result an action in detinue today may result in a judgment in one of three different forms:
(1) for the value of the chattel as assessed and damages for its detention; or
(2) for return of the chattel or recovery of its value as assessed and damages for its detention; or
(3) for the return of the chattel and damages for its detention."
In the present case we have come to the conclusion that the car cannot be returned to the appellant in the state in which it exists now. Instead therefore the appellant is to recover the value of the car. The difficulty which has arisen is: as at what date is the value of the car to be assessed? This is not difficult to determine in a normal case. For 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".
And the dictum is said in paragraph 218 of McGregor on Damages, 13th Edition to have -
"......... established that a plaintiff suing in detinue is entitled to claim, in the absence of a return of the property, the market price at the time of the judgment; thus any rise in the market price between detention and judgment is at the risk of the defendant."
Again, in the case of General and Finance Facilities Limited (supra) it is observed on page 651 thereof as follows:
"In the ordinary way where an action goes to trial the issues of liability, assessment, of value of the chattel, and damages for its detention, are dealt with at the hearing, and final judgment in one or other of the above forms is entered."
Is this court therefore to order the assessment of the value of the appellant's car as at now or as at the date when the Federal High Court gave its judgment, namely, I8th May, 1983? It is pertinent to mention that although the appellant is in addition to the value of the car entitled to general damages, no such claim has been made in either her writ of summons or statement of claim. She would have been entitled to damages had the claim been made. Be that as it may, in my view, therefore, the assessment of the value of the car which is going to be made by the Federal High Court should be as at the date when that court gave its judgment in the case, which is 18th May, 1983 and not as at the date of this judgment or any date in the future as ordered in the judgment of my learned brother, Aniagolu, J.S.C.
Accordingly, I agree that the appeal succeeds and that the two declarations sought should be granted and they are hereby granted. Although I agree that the case should be remitted to the Federal High Court for it to assess the value of the car, I hold that the assessment should be on what was the price of the car on 18 th May, I983 and not as of today or any date in the future. And I accordingly so order; with costs as proposed in the judgment of my learned brother Aniagolu, J.S.C.
Judgment delivered by
Dahunsi Olugbemi Coker, JSC.
I agree that this appeal succeeds and should be allowed for reasons given in the lead judgment, just delivered by my learned brother Aniagolu, J.S.C.
This appeal is concerned with the powers and duties of the Minister of Commerce regarding import licences and implementation of customs tariff, under section 3 of the Finance Act 1981 . Section 13(2) of the Finance Act 1981 provides that any reference in the Act to Minister where not otherwise specified, is a reference to Minister charged with responsibility for finance. Only in section 3(3) of the Act is reference made to the Minister for Commerce and then only in matters relating to import licence for goods the importation of which is subject to licence.
Briefly, the facts of the case are as follows:-
The appellant, the plaintiff at the trial, while on a visit to West Germany, bought a second-hand Mercedes Benz 280E saloon car which she shipped on 22nd February 1982 from Frankfurt to Lagos in Nigeria. The car was landed in Lagos on 3rd April, 1982. At the time of shipment and arrival in Lagos, the importation of cars to Nigeria was subject to import licence. The declared policy of the government at the time, a matter which was well known to members of the public generally, was to grant it as a matter of course where the importer satisfied three conditions. The plaintiff satisfied all the three conditions at the time the car arrived and on 13/4/82 when she applied for licence. The three conditions for grant of import licence were:-
(i) the car should actually have arrived in a Nigerian port,
(ii) provision of foreign exchange by the Nigerian Government would not be required in connection with the purchase price of the car and
(iii) the prospective importer of the car should have been abroad in the foreign country from where the car was being imported.
The 1st defendant, Federal Attorney-General, as nominal party, represented the Minister for Commerce/The Import Licensing Authority, the principal character in the matter. The 2nd defendant was the Board of Customs and Excise, a body statutorily constituted under the Board of Customs and Excise Management Act 1958 .
The powers and duties of the Minister for Commerce cum the Import Licensing Authority regarding import licences are defined in the Finance Act 1981 (1981 No 2) . It came into operation on 1st April 1980 and was published in supplement to Official Gazette Extraordinary No 15 Volume 68 of 20th March 1981.
Section 3(1) provides:-
"The Import Licensing Authority shall in respect of goods which may be imported only under a licence, by notice in the Gazette, give directions relating to the grant of special licences and in particular, but without prejudice to the generality of the foregoing, any such direction shall provide for -
(a) the form and manner in which applications shall be made, and the fee not exceeding
N 50 payable in respect of every application;
(b) the information to be furnished with such applications; and
(c) the form and duration of licences."
It follows that whatever direction the Minister gave under this provision must be published by Notice in the Gazette. His power to charge fees was restricted to application for licence. Sub-section (2) thereof provides that:
"The Import Licensing Authority may
(a) refuse to grant a licence without assigning any reason for such refusal;
(b) at any time revoke any licence for any contravention of this Act;
(c) at any time modify any licence either on application by the licensee or where circumstances so warrant."
Sub-section (3) defines "Import Licensing Authority" as such person or persons as may be designated by the Minister charged with responsibility for matters relating to commerce by notification in the Gazette from amongst the officers in his Ministry appointed to carry out the duties in relation to commerce ........"
The Ministry (i.e. 1st defendant) admitted that plaintiff fulfilled all the conditions necessary for a grant of import licence. The 1st defendant further averred in paragraphs 6 and 8 of the statement of defence that:
"(a) at the time the plaintiff submitted her application for an import licence on the 10/4/82 (13/4/82) a directive had already been given by the Federal Government to suspend the issue of all import licences"
(b) an import licence was issued to the plaintiff by the Ministry of Commerce on the 29th April 1982."
So it is clear that the Import Licensing Authority did not refuse to grant but suspended the grant of licence to the plaintiff until 29th April 1982. Throughout the hearing, the defendants did not produce the directive or direct attention of the court to any Public Notice in the Official Gazette where such directive was published or which arm of the government gave the directive or the source of authority.
The main issue however in this appeal is (assuming it possessed the power) whether the Minister of Commerce or the Import Licensing Authority had power (pending the promulgation of a proposed Act of the National Assembly) 15 to suspend the issuance of licence to any person or applicant, who qualified and satisfied the three conditions stated earlier. In paragraph 16 of the statement of claim, the plaintiff pleaded and this was not 20 specifically denied, that the Minister of Commerce deliberately delayed the issuance of import licence knowing fully well that new and heavier import duty was to be imposed.
While the grant of licence to the appellant was suspended on the 20th April 1982, the Economic Stabilisation (Temporary Provisions) (Customs Duties) Act 1982 was passed into law. Section 1(1) of the Act reads:-
"1 (1) For the purposes of economic development or stabilisation or for the correction of distortions in the economy of Nigeria, the President may issue such Orders as he may deem appropriate in the circumstances in respect of the following matters, that is to say -
(a) for the imposition of or increase in any customs or excise duty or any reduction, withdrawal or cancellation thereof."
On the same day, that is, 20th April 1982, the President, in exercise of the powers, revised import duties on certain goods, including those on cars. The duty on Mercedes Benz 280E was increased from 33 1/3% to 500% ad valorem. In effect, import duty payable on the car rose from N1,449.22 to N 14, 500.00. On the 29th April 1982, after the Order was made the Import Licensing Authority granted plaintiff the import licence. The Board of Customs, 2nd defendant demanded the full newly imposed import duty and refused to release the car to the plaintiff unless and until the full newly imposed import duty of N 14,500.00 was paid.
She refused to pay and contended it was unlawful for the Minister deliberately to suspend issuance of licences with the intention that she, and other like importers, should pay the higher duty. She therefore took out a writ seeking the following reliefs:-
"1. A declaration that the action of the Ministry of Commerce in suspending the issuing of import permits some three weeks before the passing of the Economic Stabilisation (Temporary Provisions) Act1982 on the 20th of April 1982 ;was calculated to subject the plaintiff's car which had entered Nigeria on the 3rd of April 1982 to the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1982 which was not then in force and to which it would ; not have been subject at the time of importation if the import licence in respect thereof had been issued in the normal course of business and in accordance with the established code and practice of the Ministry of Commerce, in respect of the issue of car import licence.
2. A declaration that the plaintiff is only liable to pay as customs duty in respect of the used, Mercedes Benz Car Chassis No.123033-10-011229 the sum of N896.00 or such other sum based upon the rate of or duty payable as at the 19th of April 1982.
3. An order for the release of the said car to the plaintiff."
It was her case that the duty of
N81,449.22 was the lawful duty due at the date of shipment, landing of the car, and the date of her application for import licence but for the unlawful directive of the Ministry to suspend the issuance of import licence with the objective of making her pay the revised duty. She contended that the Ministry of Commerce directive suspending the issuance of import licences was outside the scope of its powers under the
Finance Act 1981 and therefore illegal, void and of no effect. It was further contended on her behalf that but for the unlawful suspension in issuing the licence she could have cleared the car from the Customs on payment of the lawful duty of 331/3% value.
In answer to these contentions, the Ministry and the Board of Customs and Excise, contended that the Import Licensing Authority had the power to grant, suspend or refuse the issuance of licence. It was submitted that the proper duty was as provided in section 35(2) of the Customs and Excise Management Act 1958 , which reads:-
"The duties of customs and the rates thereof chargeable on imported goods ..........
(a) if entry is made thereof .. shall be those in force with respect to such goods at the time of delivery of entry."
And section 25(1) provides:-
"The importer of any goods shall deliver to the proper officer (of the Customs) an entry thereof in such form and manner and containing such particulars supported by documentary evidence as the Board may direct."
An import licence was one of the particulars which must be produced to the Customs before issue of a certificate of entry. Section 35(1) provides:-
"........ no imported goods shall be delivered or removed on importation until the importer has paid to the proper officer any duty chargeable thereon, and that duty shall in the case of goods of which entry is made, be paid on delivery of the entry to the proper officer."
Thus, without an import licence, no entry could be affected and consequently, the car could not be removed or delivered to the plaintiff since no import duty could be assessed and or otherwise paid.
Mr. Ajayi submitted, (on the assumption that the Minister had the power to suspend under section 3(2)(a)), that suspension of issuance of import licence in the peculiar circumstance of this case was illegal and amounted to misuse of ministerial discretion. Further, he submitted that both the learned trial judge and the justices of appeal failed to direct themselves properly on the issue raised by the plaintiff. What the trial court decided was a different matter from that posed by the plaintiff in her pleading.
The learned trial judge dismissed the plaintiff's case after holding that the Import Licensing Authority refused to grant import licence to the plaintiff because it had the power to do so under section 3(2) (a) of the Finance Act 1981. He did not decide whether it was right in the circumstance to suspend the grant in order to attract higher import duty. All he said was that the import duty payable by the plaintiff was that payable on the date of payment of duty in accordance with section 35 of the Customs Act. And on that same basis the Court of Appeal upheld the decision of the lower court and dismissed the plaintiff's appeal. None of the two courts directed itself on the issue, namely, whether; the statutory discretion vested in the Minister of Commerce was in the circumstance of this case lawfully exercised. It was the objective for deliberately suspending the issuance that plaintiff challenged.
Mohammed, J.C.A. in the lead judgment said:
"The appellant shipped her car, to Nigeria before a licence was issued to her and when the car arrived and she applied for a licence she was unfortunate to be caught up by a directive given generally to all importers that no licences would be issued to anyone until further notice, and when the issuance of licence was resumed, all importers, including the appellant, were made to pay more duty under the new law. "
He went further:-
"What right had she to be considered now under a law that no longer existed? And had anything been done singly against her application which did not affect others by the ministerial directive."
With respect, that was not the issue before the court. The issue was whether the directive in the circumstance was a lawful exercise of discretion.
Mohammed, J.C.A. in seeking to distinguish the case of Congreve v The Home Office (1976)1 Q.B. 629 from the present case said:-
"The Minister of Commerce in this case was a bit more careful. He suspended the issuance of all licences until the new law had taken effect. Under the Finance Act ; 1981, the Minister had power to refuse to grant import licence to anyone and the law said that he had no obligation to assign any reason for such a refusal. See s.3 (2) (a) of the
Finance Act, 1981. "
The plaintiff's case was that it was no business of the Minister to suspend grant of licences in contemplation of the new Order. The directive was outside his powers. The crux of her case was that the Minister could not deliberately delay the issuance of import licence with the sole intention that the plaintiff and other importers should by delaying grant of import licence, be made to pay higher import duty imposed under the new Order.
Mr. Ajayi submitted that the plaintiff, in reliance on existing government policy, imported the car and thereby qualified for an import licence and delivery of the car on payment of the 33 1/3% import duty lawfully due. It was the deliberate and unlawful suspension of issuing her a licence on the Minister's directive that imposed on her the 500% import duty.
Learned counsel submitted further that it was irrelevant that she imported the car before applying for a licence. I agree. It was no issue that she should not have imported the car before obtaining a licence. In fact, actual arrival of the car in Nigeria was a condition for grant of licence. Licence is the doing of something which otherwise would be illegal. The clear policy was not to prohibit importation but to prevent dissipation of foreign exchange on import transactions on cars.
The powers and duties of the Minister
of Commerce under the Finance 1981 were simply to regulate issuance of import licences. He had no power over fiscal measures, which fell within the responsibility of the Minister charged with the responsibility for finance. See section 13(3) of the 1981 Finance Act which provides that:-
Any reference in this act to minister where not otherwise specified, is a reference to the Minister charged with the responsibility for finance."
A careful reading of the entire 1981 Finance Act makes it plain that matters relating to imposition and general control over customs and excise tariffs were the responsibilities of the Minister of Finance under the Customs Tariff (Consolidation) Act 1973 and Excise Tariff (Consolidation) Act 1973. Section 13 provides that the Act should be read and construed together with Customs & Excise Management Act 1958. The Minister of Commerce therefore has no, statutory discretion and ought not to have been influenced by matters which fell outside his statutory responsibility. Therefore, any directive issued by him which was influenced by fiscal consideration like import tariffs would be outside the scope of his authority 1 and therefore unlawful.
Mohammed, J.C.A. specifically found as did, the trial judge, that the Minister of Commerce.
"suspended the issuance of all licences until the new law had taken effect. Under the Finance Act 1981 , the Minister had power to refuse to grant import licence to anyone and the law said that he had no obligation to assign any reason for such refusal. See section 3(2) of the
Finance Act 1981 ."
The finding on the evidence was that the reason why the Minister suspended the issuance of all licences was, "until the new law had taken effect" - An Act which had not been enacted.
Although the Act says that the Minister need not give any reasons for refusing to grant, if the circumstance justify the inference, the court may infer that he has no good reasons for his decision or if it appears to the court that he has been influenced by extraneous considerations, which ought not to have influenced him, the court has power to interfere.
It is my view that the Minister was in error when he allowed himself to be influenced by reason of measures conceived under an Act which was yet to be enacted, such as those contemplated in the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1982.
What the Minister of Commerce did in the instant case was directed to extracting a higher duty than the law imposed. It was an unlawful imposition. He cannot employ his statutory power to grant or refuse import licence to achieve that purpose. Being a money bill, it is a clear usurpation of the powers of the National Assembly under section 55(1)(b) of the 1979 Constitution of the Federation. The Minister of Commerce has no such power. The power to impose duty, the amount to be imposed, the duration of the imposition are all matters for the head of the Federal Military Government or the Federal Executive Council under section 7(1) of Customs Tariff (Consolidation) Act 1973 or the President of the Federation as from 20th April 1982 under the 1982 Stabilisation Act. The combined effect
of sections 2, 4(1) and 5(1) of the
Customs and Excise Management Act 1958 is to place the Board of Customs under the general control of the Minister of Finance in the exercise of the powers and duties conferred upon the Board and any written instruction given by him after consultation with the chairman of the Board.
The present case to my mind falls squarely within the principles enunciated in Congreve v Home Office (1976)1 Q.B.629 . The case was essentially concerned with the well settled rule of law that no pecuniary burden may be imposed on any person without direct statutory authority and a man is entitled to order his affairs in accordance with the law as it stands at the time. See Attorney-General v Wilts United Dairies Ltd. (1921) 37 T.L.R. 884
(1922)38 T.L.R. 781 . See also Council of Civil Service Union & Ors v Minister for Civil Service (1984) 3 All E.R. 935 where Lord Diplock stated the three general principles in which administrative actions could be subject to judicial control. The scope of judicial control is to ensure that the scope and limits of the statutory power are not exceeded. The controlling factor in determining whether the exercise of power is subject to judicial review as provided under section 6(6} (b) of the 1979 Constitution. The section provides that the judicial power of the courts established under the Constitution shall extend to all matters between government or authority and any person in Nigeria and for the determination of any question as to the civil rights and obligations of that person. The case of Council of Civil Service Union and Others y. Minister of Civil Service (1984)3 All E.R. 135 is authority for the principle that an aggrieved person is entitled to invoke the judicial review if he could show that the decision of a public authority affected him by depriving him of some benefit or advantage which in the past he or any member of the public expected to enjoy. Even where the person claiming some benefit has no legal right to it as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege. Such legitimate expectation may arise either from express promise given on behalf of a public authority or from the existence of a regular practice which the claimant may reasonably be expected to continue. In this case, it is common ground that any importer of a car who satisfied the three conditions earlier stated would be grantee import licence as a matter of course. On that basis, the plaintiff imported the car and it was reasonable to expect she would have obtained import licence but for the unlawful suspension of the grant resulting from extraneous consideration of a matter which was outside the scope
of the Import Licensing Authority.
I am, of the view that even if the Minister of Commerce had had the power to suspend issuance of import licences, which I hold he did not possess, the exercise of his statutory discretion in the peculiar circumstance of this case was a breach of the duty to act fairly.
For the above reasons and those more elaborately stated by my learned brother, Aniagolu, J.S.C. in the lead judgment, I will allow the appeal, and set aside the judgments of the two lower courts. I also abide by the orders made by him including the orders for costs.
Judgment delivered by
Adolphus Godwin Karibi Whyte. J.S.C.
I have had the privilege of reading the judgment of my learned brother
Aniagolu JSC. I am in agreement with him that the Minister of Commerce acted wrongly in ordering the suspension of the issuance of particular import licences or generally. He had no power under the enabling statute to give such orders.
In challenging the exercise of the Minister of his discretion in this regard appellant has issued a writ of summons claiming the following declarations:
"1. A declaration that the action of the Ministry of Commerce in suspending the issuing of import permits some three weeks before the passing of the
Economic Stabilisation (Temporary Provisions) Act 1982 on the 20th of April 1982 was calculated to subject the plaintiff's car which had entered Nigeria on the 3rd of April 1982 to the Economic Stabilisation (Temporary Provisions) (Customs Duties) Order 1982 to which it would not have been subject at the time of importation if the import licence in respect thereof had been issued before the 19th of April 1982 in accordance with the established procedures of the Federal Ministry of Commerce.
2. A declaration that the plaintiff is only liable to pay customs duty in respect of the used Mercedes Benz Car Chassis No 123033-10-011229 the sum 6f
N 896.60 or such other sum based upon the rate of duty payable as at the 19th of April 1982.
3. An order for the release of the said car to the plaintiff on the payment of the said sum.
Section 3(1) of the Finance Act 1981, (No 2 of 1981) under which the Minister claimed to have exercised his discretion enabled the Import Licensing Authority to
(a) refuse to grant a licence without assigning any reason for such refusal
(b) at any time revoke any licence for any contravention of this Act
(c) at any time modify any licence either on application by the licence or where circumstances so warrant."
The respondent admitted that there was no refusal to grant a licence to the appellant. Indeed the licence applied for was granted. The issue in dispute between the appellant and the 1st and 2nd respondents was that the Minister of Commerce suspended the issuance of licence to the appellant even when the conditions of its issuance had been perfected. Appellant's contention is that she was entitled to the issuance of the licence having perfected the conditions. The delay of the issuance of the licence to her to a time which attracted an increased rate of duty was ultra vires the Minister. Appellant's contention was that the licence issued to her should relate back to the period when she perfected the conditions for its issuance. She was therefore not liable to pay the new rate of import duty attracted by the licence issued to her. It is clear from the enabling provisions that appropriate authority may refuse to issue a licence without assigning any reasons. It may also revoke the issuance of a licence on contravention of any provisions of the enabling Act. It is indeed empowered to modify the licence on the application of the licensee or in accordance with the circumstances of the licence. These are the conditions regulating the issuance of a licence under s.3 (l). It has not been shown by the respondent that any of these conditions were invoked in respect of the issuance of the licence of the appellant. The suspension of the issuance of licences generally during the period appellant was entitled to be issued with one was therefore a wrong exercise of the discretion to issue the licence to the appellant and a breach of the duty to act fairly in the circumstance. Appellant was therefore not liable to pay the new rate of duty imposed under the new licence. Appellant is therefore entitled to the first two declarations.
The third arm of appellant's claim is the release of her car. It is clear that at the time when appellant satisfied the conditions for the issuance of the import licence for the release of the car, the car was in the possession of the 2nd respondent. Appellant's claim for the release of the car can only therefore lie in detinue. On the evidence before this court the car had changed hands twice, first to the 3rd respondent and ultimately to the 4th respondent. It therefore would appear that the action against the 2nd respondent in detinue is different from that against the 3rd and 4th respondents which is in conversion.
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. In General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963)1W.L.R.644 et p.659 , Diplock L.J. dealing with the measure of damages in conversion said:
The judgment is for a single sum of which the measure is generally the value of the chattel at the date of the conversion together with any consequential damage flowing from the conversion and not too remote to be recoverable in law..."
The evidence before us convincingly demonstrates the impossibility of returning the car in specie . The car now in possession of the 4th respondent is not in the same condition in which the 2nd respondent took it from the appellant. The justice of the case will therefore be met by appellant recovering the value of the car. The difficult question is the punctus temporis for the determination of the value of the car. This court is referring this case to the Federal High Court to assess the value of the car. I think it will be more consistent with the facts of the case for the court to consider the date of the judgment in that court as the relevant date for the assessment of the value of the car. This is the 18th May, 1983. This was the date the court first determined the case and was in a position to assess the value of the car. I do not agree with the direction in the judgment of my learned brother Aniagolu J.S.C. that the date should be the date of this judgment or any date in the future. This will have the curious and anomalous effect of advancing the date of the proceedings
of the court of trial beyond the date of the judgment of the trial court.
I therefore agree that the appeal succeeds and that the first two declarations sought be and are hereby granted.
I also agree that the case be remitted, and is hereby remitted to the Federal High Court to assess the value of the car as on the 16 th May, 1983.
Since appellant had not claimed for general damages, I decline to make any award in that regard.
I abide by the costs as proposed in the judgment of my learned brother
G.O.K. Ajayi Esq. S.A.N ....... For the Appellant
Miss A. Makinde
Miss A. Adaramaja
Miss T.O. Akerele ....... For the 1st & 2nd Respondents
Legal Adviser, Board of Customs & Excise
Miss A.O. Adesida
Mrs. O.O. Olopade
Principal State Counsel, Ogun State ....... For the 3rd Respondent.
F.T.O. Akinsanya, Esq ....... For the 4th Respondent