STITCH V. A-G. FEDERATION & ORS.

• Pages: 1389-1415

STITCH V. A-G. FEDERATION & ORS.

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1389

STITCH V. A-G. FEDERATION & ORS.

5

MARGARET CHINYERE STITCH

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APPELLANT

V

10 1. A-G. OF FEDERATION

2.

BOARD OF CUSTOMS & EXCISE

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RESPONDENTS

3.

A-G., OGUN STATE

JOINED BY ORDER OF COURT

4.

O.O. ONIFADE

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SUIT NO. SC 88/1985

SUPREME COURT OF NIGERIA

ESO,

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J.S.0

ANIAGOLU,

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J.S.0

UWAIS,

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J.S.C.

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COKER,

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J.S.0

KARIBI-WHYTE,

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J.S.0

12th December, 1986

Administrative Law - Public Authorities - Discretional)) Power of - Courts'

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Jurisdiction to intervene where exercised arbitrarily or improperly - Issuance of

car Import Licences suspended by Minister of Commerce in contemplation of

new order by Finance Minister increasing rate of customs duties from 33

1/3% to 500% advalorem - Plaintiff's car subject at time of importation to

duty at lower rate but licence delayed until after promulgation of new order

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Duty payable by her consequently assessed at higher rate - Effect - Right

of plaintiff, a Nigerian citizen to rely on government's declared existing policy

- Suspension of issuance of licence to plaintiff and additional levy an improper

exercise of Minister's discretion - Minister's powers in regard to licences

statutorily limited to refusal, revocation and modification of Licences, no

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responsibility conferred on him for fiscal matters - Release of car in specie to

plaintiff rendered impossible - Plaintiff's 3rd claim being in detinue, plaintiff

entitled to value of similar car in good condition from 1st and 2nd respondents

as tortfeasors.

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ISSUES:

1.

Whether the Courts may intervene where Public Authorities exercise their

discretionary powers arbitrarily or improperly.

2.

What is the basic distinction between a cause of action in conversion and a

cause of action in detinue?

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3. What is the measure of damages available to an aggrieved party in an action

for detinue.

FACTS:

The plaintiff had bought a used 1976 model Mercedes Benz 280 Saloon car

while in Germany, and shipped it to Nigeria on the 22nd February 1982. The car

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arrived at the Lagos Harbour on the 3rd of April 1982. The plaintiff's car was sub-

ject at the time of importation to duty at the rate of 33 1/3% and she fulfilled all laid

down conditions for issuance of import licence before applying for a licence. The

plaintiff was entitled under normal Ministry procedure to expect the issue of a

Licence within a few days of her application, but the issuing of Licences was sus-

1390

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NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

pended and her licence was delayed for about 2 weeks until after the promulga-

tion of a new order which assessed the duty payable by her, at the rate of 500%.

On the basis of 33 1/3%, the duty payable by the plaintiff was N1,449.22 whilst on

the basis of 500% the duty payable was N14,500.00. The plaintiff refused to pay

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this new amount arguing that the car had arrived in the country before the new

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order increasing the rate of duty payable was made. She paid the Board of Cus-

toms N1,449.22, and they issued a receipt for this sum, but refused to release the

car until the balance of the full 500% duty charged was paid. The plaintiff thus in-

stituted an action against the defendants claiming - a declaration that the suspen-

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sion of issuance of licences was unlawfully calculated to subject her car to the new

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order; a declaration that she was liable to pay duty at the rate payable prior to the

New Order and; the release of her car to her on payment at that rate.

The High Court, in its judgment found against the plaintiff holding that the duty

on the car must be the amount which according to the new law was payable on

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the day payment was tendered by the plaintiff. The plaintiff's appeal to the Court

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of Appeal was also dismissed whereupon she further appealed to the Supreme

Court.

During the proceedings, it was revealed that the car in dispute had been sold

by the Port Commandant of Tin Can Island Port, Lagos to the Ogun State Govern-

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ment who had also sold it to one Mr. Onifade, as a result of which Mr. Onifade

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and the Attorney- General of Ogun State were joined as parties to the suit.

The appellant contended that the Ministry of Commerce did not have the power

to suspend the issue of an import licence to the appellant and that the exercise by

the Ministry of such a power to suspend was arbitrary in the circumstances.

HELD:

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1.

The contention of the respondents that the Minister of Commerce under Section

3 of the Finance Act, 1981 had unfettered power to grant or refuse import

licences with or without assigning reasons, is not true in law. The discretionary

power of the Minister under section 3 of the Finance Act, 1981 is clearly within

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the reviewable jurisdiction of the courts. Whether the Minister failed to

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exercised his discretion; or refused to exercise his discretion; or misused the

discretionary power, it being a principle established by the courts that once a

prima facie

case of misuse of power has been established, it would be open

to the courts to infer that the Minister acted unlawfully, whether or nor he

supplied a justification.

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2.

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%. It was unjust and retrospectively punitive, and the

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legislature had not given the Minister authority to levy that amount from the

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appellant. The appellant is thus entitled to the declarations sought by her.

3.

The release of the appellant's car to her has been rendered impossible by its

sale to the 3rd and 4th respondents and its subsequent cannibalization by the

latter, thus she is entitled to receive from the 1st and 2nd respondents an amount

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which will buy her a second-hand Mercedes Benz 280 Saloon car with all the

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accessories contained therein when she imported hers.

4.

A cause of action in conversion is a sinale wrongful act and the cause of action

accrues at the date of the conversion. A cause of action in detinue however is

a continuing cause of action which accrues at the date of the wrongful refusal

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to deliver up the goods and continues until delivery up the goods or judgment

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in the action for detinue. The appellant's cause of action in the instant case was

based on detinue and not conversion, which took place long after the action

had been instituted and the decision of the trial court given.

5.