Margaret Chinyere Stitch V. Attorney-general Of The Federation & Ors. (1986)

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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 – all 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 23rd 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 Plaintiff” claim again the Defendants 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 Plaintiffs car which had entered Nigeria on the 3rd of April, 1982 to the Economic Stabilization (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 procedure 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 of N896.60 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″. (Italic 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, Mhieri, Owerri, Imo State. While in Western Germany she bought a used 1976 Model Mercedes Benz 280 Saloon car which she shipped to Nigeria on 2nd 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 Stabilisation (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 33 1/3% to 500%.

On the basis of 331/3%, the duty which the Board of Customs assessed for the Appellant to pay on 13th April, 1982 was N1,449.22. (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 N1,449.22 as they originally assessed, but a sum of N14,500.00 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 N14,500.00 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 off 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. O. O. Onifade who was working under the Lagos University Teaching Hospital, on 24th June 1985.