BAMAK PHARMACY & STORES LTD & ORS. V. ABUJA MUNICIPAL AREA COUNCIL (2010)

BAMAK PHARMACY & STORES LTD & ORS. V. ABUJA MUNICIPAL AREA COUNCIL

(2010)LCN/3631(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of March, 2010

CA/A/256/2007

RATIO

JURISDICTION: WHAT DETERMINES THE JURISDICTION OF THE FEDERAL HIGH COURT

Neither is it the law that, a consideration of the parties is required before vesting the federal High Court with jurisdiction. Per Salami J.C.A (as he then was).Tanarewa (Nig.) Ltd v. Plasgtifarm Ltd. (2003) 14 NWLR (pt. 840) 355 AT 374, Skenconsult v. Ukey (1981) 1 SC 6; Akinbobola & Sons v. Plissons Fisko (Nig.) Ltd (1986) 4 NWLR (pt. 37) 621.

The determination of the issue of jurisdiction turns upon the claims endorsed or the writ of summons or particulars of claim where one exists or a statement of claim. It is from one or more of these processes filed by the plaintiff that, his cause of action which is described as a bundle or aggregate of facts in the relationship between the parties which the court will recognise as enabling the plaintiff to enforce the claim against the defendant.Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 376; UBA Ltd v. Penny Mart Ltd (1992) 5 NWLR (pt 240) 228; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; Attorney General Oyo State v. Bello (1986) 5 NWLR (pt. 45) 828; Savage v. Uwechia (1972) 3 SC 214; Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Tukur v. Gongola State (1989) 4 NWLR (pt. 117) 517; FBN v. Jimiko Farms Ltd (1997) 5 NWLR (pt. 503) 81. Section 251 (1) (b) of the 1999 Constitution is a re-enactment of Section 7(1)(c)(i) of the Federal High Court Act, 1990 and both legislations are in pari materia. Paragraph (e) of subsection (1) of Section 251 of the 1999 Constitution does not vest jurisdiction over person. It does not provide for the manner or class of persons subject to the jurisdiction of the Federal High Court. The Section merely vests in the Federal High Court jurisdiction in a Civil Cause and matter which is neither a person nor a party.

Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 372 CA.

In determining the jurisdiction of the Federal High Court under Section 251 (1) (e) of the 1999 Constitution, what the court should consider is the reliefs claimed rather than the status of a party.

This is because Section 251 (i) (e) does not vest jurisdiction over person and does not provide for the manner or class of persons subject to the jurisdiction of the court. It is, therefore, not the business of the court to ascertain whether a particular defendant can stand trial before it or not. What should concern the court mainly is whether the cause of action is triable before it. Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 372 – 373 (CA).

Section 7 (i) (e) of the Federal High Court Act, provides:-

(1) The Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters –

(a) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of Companies incorporated under the Companies and Allied Matters Act. PER MARY U. PETER-ODILI, J.C.A

JURISDICTION: JURISDICTION OF THE FEDERAL HIGH COURT IN RELATION TO MATTERS ARISING FROM THE OPERATION OF THE CAMA

By virtue of Section 251 (1) (e) of the 1999 Constitution, notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating operation of companies incorporated under the Companies and Allied Matters Act. It is manifest from the foregoing provisions that jurisdiction will only vest in the Federal High Court if the suit involves civil cause or matter arising from the operation of the Companies and allied Matters Act or any other Act replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act. The implication is that in an action involving, regulating, running or management or control of companies, the Federal High Court would be vested with jurisdiction. PER MARY U. PETER-ODILI, J.C.A

JURISDICTION: WHEN WILL A STATE HIGH COURT HAVE JURISDICTION IN RELATION TO BUSINESS OF A COMPANY

But where the dispute does not involve the control or administration of a company and deals with ordinary routine business of a company, a state High Court, and not the Federal High Court, has jurisdiction to entertain and determine the matter. Stated differently, any matter that can be decided without recourse to either the Companies and Allied Matters Act; or any enactment regulating operation companies under the said Act belongs to a State High court. University of Ilorin Teaching Hospital v. Akilo (2001) 4 NWLR (pt.703) 246; F.M.B.N. v. NDIC (1999) 2 NWLR (pt. 591) 333; Ali v. CBN (1997) 4 NWLR (pt. 498) 192; University of Abuja v. Ologe (1996) 4 NWLR (pt. 445) 706; NIDB v. Fembo (Nig.) Ltd (1997) 2 NWLR (pt. 489) 543; Bi Zee Bee Hotels Ltd. v. Allied Bank of Nigeria Ltd (1996) 8 NWLR (pt. 465) 176; 7- Up-Bottling Co. Ltd v. Abiola & Sons Bottling Co. Ltd. (1996) 7 NWLR (pt. 463) 714; Jammal Steel Structures Ltd v. ACB Ltd (1973) 1 All NLR (pt. 2) 208.

JURISDICTION: INSTANCES WHERE A COURT MAY LACK JURISDICTION

The court may also lack jurisdiction by its composition or by the fact that the matter was not initiated by due process of law. Per Edozie J.C.A (as he then was) in Okoi v. Ibiang (2002) 10 NWLR (pt. 776) 455 at 469; Madukolu v. Nkemdilim (1962) 2 SC NLR 341; Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (pt. 825) 416 (SC). PER MARY U. PETER-ODILI, J.C.A

JUSTICES

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

1. BAMAK PHARMACY & STORES LTD
2. SUPA-PHARMA LTD
3. A.F.F.A. PHARMACEUTICALS LTD
(For themselves and on behalf of all
Pharmaceutical Companies in Abuja
Municipal Area Council.) Appellant(s)

AND

ABUJA MUNICIPAL AREA COUNCIL Respondent(s)

MARY U. PETER-ODILI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja contained in the judgment of Honourable Justice A.I. Chikere declining jurisdiction to entertain the originating summons of the Appellants/Plaintiffs on the grounds that the Respondent/Defendant, Abuja Municipal Area Council (AMAC) is not an agency of the Federal Government and that the imposition of Business Premises Levy or permit on the Appellants/Plaintiffs by the Respondent/Defendant is not taxation.
Dissatisfied with the judgment of the Lower court, the Appellants/ Plaintiffs filed this Appeal before this Court containing four grounds of appeal.
STATEMENT OF FACTS:
The Appellants/Plaintiffs in this Appeal who are Pharmaceutical Companies duly registered by the Corporate Affairs commission (CAC) were at various times between 01/11/05 and 26/01/06 served Demand Notices by the Respondent/Defendant for the payment of Business Premises Permit under the Abuja Municipal Area Counsel Bye-Law, Vol. 1, Cap. 7. The Respondent/Defendant on several occasions were alleged to have used thugs and members of the Nigerian Police Force to coerce the Appellants/Plaintiffs to pay the levy imposed in the name of the Business Premises Permit. Also alleged is that on several occasions the Superintendent Pharmacists of some of the Appellants/Plaintiffs were unlawfully arrested and detained and in the process, their premises were closed down.
Aggrieved by the imposition of the levy and other acts of intimidation alleged against the Respondent/Defendant, the Appellants as Plaintiffs initiated this action at the Federal High Court, Abuja, after serving pre-action notice on the Respondent/Defendant.
The Claims of the Appellants/Plaintiffs at the trial court and contained on pages 3 and 4 of the records are as follows:-
1. A DECLARATION that the imposition of the tax or levy whatsoever called (Business Premises Permit or Registration Levy or Fees) on the Plaintiffs by the Defendant is illegal.
2. A DECLARATION that the provisions of the Defendants Bye-Law (Abuja Municipal Area Council Bye-Laws, Vol. 1, Cap. 7f 2001) or whatsoever called seeking to license or register the Plaintiff are inconsistent with the Constitution and therefore void or inoperative.
3. A DECLARATION that the Pharmacists Council of Nigeria is the only competent authority to License or Register Pharmaceutical Company in Nigeria.
4. AN ORDER of the Honourable Court compelling the Defendant to refund all taxes/levies collected from the Plaintiffs in respect of the registration.
5. AN ORDER of perpetual injunction restraining the Defendant either by herself or her servants, agents or privies from further collection of any taxes/levies in respect of registration or licence from the Plaintiff and/or from interfering with the smooth operations of pharmaceutical companies in the Area Council.
At the trial, the Defendant entered a conditional appearance and when the case came up for the first time on 8/5/06 at the trial court, the Honourable Justice A. I. Chikere suo motu raised the issue of the jurisdiction of the court to try the Originating Summons and ordered the parties to address the court through written addresses. Consequently, the plaintiffs’ Counsel filed his written address on 25/5/06. The defendant’s counsel filed the defendant’s written address on 14/06/06 and the plaintiffs’ reply address was filed on 23/06/06. The addresses adopted by the parties on 28/6/06 and the case adjourned for ruling and on the 13/7/06 the learned trial Judge delivered her ruling striking out the originating summons on the ground that the Defendant is not an agency of the federal Government and that the imposition of Business Premises Permit/Levy on the Plaintiff by the Defendant is not taxation to bring the action within the jurisdiction of the federal High Court. It is against that Ruling that the Appellants have appealed to this Court on four grounds which are as follows, the particulars excepting:-
GROUNDS OF APPEAL:
1. The trial Court erred in law when it held that the imposition of Business Premises Levy by the Abuja Municipal Area Counsel is not taxation.
2. The trial Court erred in law when it declined jurisdiction to entertain the Plaintiffs/Appellants originating summons.
3. The trial Court erred in law when it relied on the case of Okoyode v. FCDA (2005) 27 WRN 97 decided based on party jurisdiction under Section 251(1)(p) of the 1999 Constitution in deciding the Appellants’ originating summons brought under Section 251(1)(b) of the Constitution based on the subject matter of taxation of companies.
4. The trial court erred in law when it struck out the Appellants’ suit for lack of jurisdiction. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
i) To allow the Appeal and set aside the decision of the trial court declining jurisdiction to entertain the originating summons of the appellants.
ii) AN ORDER remitting the suit to the Lower court for retrial by a different Judge.
iii) ALTERNATIVELY, where the Court ofAppeal holds that the Federal High Court has no jurisdiction in the appellants’ suit, AN ORDER transferring the suit to the Federal Capital Territory High Court.
On 17/2/10 date of hearing the Appellants counsel, Mr. Ediru adopted their Brief filed on 7/11/07 and deemed filed on 21/10/07. He also adopted the Reply Brief of 1/12/09. The Appellant framed three issues for determination which are as foliows:-
1. Whether the Lower court was right when it held that, the imposition of Business Premises Levy on the Appellants/Plaintiffs by the respondent/Defendant is not taxation.
2. Whether the Federal Government or any of its agencies must be a party to a suit founded on taxation of companies and brought under Section 251(1)(b) of the 1999 Constitution for the Federal High Court to assume jurisdiction.
3. Whether an order striking out the Originating Summons of the Appellants/Plaintiffs is the proper order to make after declining jurisdiction to entertain same in view of Section 22 (2) of the Federal High court Act, Cap. F12, Law of the Federation of Nigeria, 2004.
The Respondent’s Brief filed on 19/11/09 was taken as argued on their behalf, Respondent and Counsel being absent inspite of knowledge of the day of hearing having been present when the date was taken. Respondent adopted the three issues as formulated by the Appellants.
ISSUE No. 1:
Whether the Lower court was right when it held that the imposition of Business Premises Levy on the Appellants/Plaintiffs by the Respondent/Defendant is not taxation.
In his argument, Mr. Ediru for the Appellants contended referring to Black’s Law Dictionary 8th Edition at page 1496 which defines ‘tax’ as a ‘a monetary charge imposed by the Government on persons, entities, transactions or property to yield public revenue’.
He said, the demand Notices for the payment of Business Premises Permit issued on the Appellants stipulate N5,000.00, N25,000.00 and N35,000.00 as the amount to be paid. He referred to Exhibits ‘G’, ‘G1’ and ‘G2′ respectively on pages 23- 25 of the records. Also that the Appellants as pharmaceutical companies are entities within the meaning of the Black’s Law Dictionary definition of tax. That the stipulated amount to be paid to the Respondent (AMAC) is to yield public revenue. That since the demand notices are monetary charges imposed by the Government (Abuja Municipal Area Council), the Defendant in this suit, on entities (Pharmaceutical Companies) the Plaintiff in this suit, to yield public revenue, the demand Notices are taxes on the authority of the Blacks Law Dictionary cited earlier. That if the Business Premises Permit Notices are taxes levied on companies (the Plaintiff), such companies are entitled to challenge their legality under Section 251 (1) (b) of the 1999 Constitution and the proper court is the Federal High Court.
Mr. Ediru went on to submit that the law recognizes not only Federal Government but also the States and Local Governments as competent taxing authorities. He cited Taxes and Levies (Approved List for Collection) Act, Cap T2, Laws of the Federation of Nigeria 2004, parts 1, 11 & 111 of the Schedule thereof). That the taxation of the Appellants/Plaintiffs by the defendant (Abuja Municipal area Council), a local government is within the contemplation of Section 251 (1) (b) of the 1999 Constitution and can be challenged if found to be erroneous by those taxed. That the constitutional authority of the Respondent/Defendant to levy taxes does not extend to licensing the operations of the Appellants/Plaintiffs is the gravamen of the Originating Summons before the Federal High court. He stated on that, the provisions of the Respondent/Defendants’ Bye-Law, under which the Business Premises Permit/Levy is imposed on the Appellants/Plaintiffs show clearly that, it is on taxation. He referred to Section 1 of the Bye-Law; The Oxford Advance Learner’s Dictionary at page 677 defines Levy as ‘a tax levied by government on company profits’.
Responding, Mr. Solomon Tunyan of counsel for Respondent said the Respondent/Defendant did not impose any tax on the appellant/plaintiff vide the provisions of Respondent’s Bye-Law of 2001. That in assessment of taxes vis a vis the imposition of taxes on companies, assessment is based either on the ascertainable profit of the company at the end of its financial year or vide other modes as Best of Judgment (BOJ), self assessment, minimum profit assessment modes where the annual profit of a company is unascertainable. That a clear appraisal of the first mode of assessment is in a situation where the profit of the company is known can be drawn from various Tax legislations pertaining to companies such as under the Companies Income Tax Cap C2 LFN 2004 (CITA). Mr. Tunyan said under the Companies Income Tax Act which the plaintiffs are rightly subject to, the legislation imposed tax on companies at a specific rate based on the profit of the company. He cited Section 9 (i) of CITA; Section 40 (1) of CITA.
Learned Counsel for the Respondent submitted that, it is clearly shown from this tax legislation that it is a specific amount that is charged on the known profit of a company, income that is subject to taxation hence a payment demand/made for the regulation and licensing of commercial/business premises by the respondent/defendant cannot be an imposition of tax as it was not in any way directed at the profit of the Appellant/Plaintiff’s companies or tailored towards the adoption of other forms of assessment of taxation on the appellants.
That, the Respondents did not engage in the calculation of Appellant’s companies’ income to impose the business premises levy and that the Appellants did not declare their annual profit to the respondent (which they were not obliged to do) at any time for them to base the imposition of the said levy where in that case it would have amounted to an imposition of tax.
In reply on point of law, learned Counsel for the Appellants stated that Section 251(1) (b) of the 1999 Constitution does not restrict taxation to that based on ascertainable profits or any mode of assessment rather, the section provides for taxation of companies simpliciter.
The learned trial Judge had concluded her judgment thus:-
“This present Suit questions the imposition of Premises levy on Plaintiffs by AMAC, a Parastatals under Federal Capital Territory like F.C.D.A. By the above decision of the Court of Appeal (Okoyode v. FCDA (supra)), which decision I am bound to follow, it follows then that AMAC (defendant) here is not an agent of the Federal Government.
The imposition of Business Premises levy by Defendant cannot also be said to be imposition of taxation, as alleged by Plaintiffs’ counsel for the Federal High court to assume jurisdiction. Accordingly, suit is struck out”.
The fact has to be emphasized that, a company or a body is registered under the Companies and Allied Matters Act does not qualify every action brought by or against it as “matters arising from the operations of Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act”, as contemplated by the provisions of section 251(1) (e) of the 1999 Constitution. Neither is it the law that, a consideration of the parties is required before vesting the federal High Court with jurisdiction. Per Salami J.C.A (as he then was).Tanarewa (Nig.) Ltd v. Plasgtifarm Ltd. (2003) 14 NWLR (pt. 840) 355 AT 374, Skenconsult v. Ukey (1981) 1 SC 6; Akinbobola & Sons v. Plissons Fisko (Nig.) Ltd (1986) 4 NWLR (pt. 37) 621.
The determination of the issue of jurisdiction turns upon the claims endorsed or the writ of summons or particulars of claim where one exists or a statement of claim. It is from one or more of these processes filed by the plaintiff that, his cause of action which is described as a bundle or aggregate of facts in the relationship between the parties which the court will recognise as enabling the plaintiff to enforce the claim against the defendant.Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 376; UBA Ltd v. Penny Mart Ltd (1992) 5 NWLR (pt 240) 228; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; Attorney General Oyo State v. Bello (1986) 5 NWLR (pt. 45) 828; Savage v. Uwechia (1972) 3 SC 214; Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Tukur v. Gongola State (1989) 4 NWLR (pt. 117) 517; FBN v. Jimiko Farms Ltd (1997) 5 NWLR (pt. 503) 81. Section 251 (1) (b) of the 1999 Constitution is a re-enactment of Section 7(1)(c)(i) of the Federal High Court Act, 1990 and both legislations are in pari materia. Paragraph (e) of subsection (1) of Section 251 of the 1999 Constitution does not vest jurisdiction over person. It does not provide for the manner or class of persons subject to the jurisdiction of the Federal High Court. The Section merely vests in the Federal High Court jurisdiction in a Civil Cause and matter which is neither a person nor a party.
Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 372 CA.
In determining the jurisdiction of the Federal High Court under Section 251 (1) (e) of the 1999 Constitution, what the court should consider is the reliefs claimed rather than the status of a party.
This is because Section 251 (i) (e) does not vest jurisdiction over person and does not provide for the manner or class of persons subject to the jurisdiction of the court. It is, therefore, not the business of the court to ascertain whether a particular defendant can stand trial before it or not. What should concern the court mainly is whether the cause of action is triable before it. Tanarewa (Nig.) Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 355 at 372 – 373 (CA).
Section 7 (i) (e) of the Federal High Court Act, provides:-
(1) The Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters –
(a) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of Companies incorporated under the Companies and Allied Matters Act.
The preamble to the Bye-Law Vol. 1 Chapter 7, AMAC
Commercial/Trade Premises Bye-Law 2001 under which the AMAC now Respondent herein imposed the levy on the Appellants states as follows:-
“A law to make provision for the licensing and regulation of commercial premises including construction sites, quarry site etc in AMAC and for other matters incidental thereto or connected therewith”.
In relating the above stated legislation to the Tax Legislation as provided for in Companies Income Tax Act Cap C2 LFN 2004 (CITA), Section 9 (i) of which provides as follows:-
“Subject to the provision of this Act the Tax shall for each year of assessment, be payable at the rate specified in subsection (1) of Section 40 of this Act upon the profits of any company accruing in, derived from, brought into, or received in Nigeria…”
The Section 40 (1) of CITA referred to provides as follows:-
“There shall be levied and paid for each year of assessment in respect of the total profit of every company. Tax at the rate of thirty kobo for every Naira”.
Taking the two different legislations together; one, a Bye-Law of the Federal Capital Territory Area Council and the other a National Legislation of the National Assembly and even taking them in con of their contents, there is no relationship, the territorial arena different and the boundary of each known leaving nothing to conjecture.
It is of essence for a clearer picture to say that by virtue of Sections 299 and 301 of the 1999 Constitution, the Federal Capital Territory wherein is AMAC, is in law to be treated in like manner as a state and for Section 251(i)(b) of the 1999 Constitution to apply the action in question must be a contention on taxation which is imposed by the Federal Government or its Agency. I place reliance on Section 251 (1 q) of 1999 Constitution which has so provided in order to vest the Federal High Court with jurisdiction.
It is necessary to refer and quote Section 299 and section 301 of 1999 Constitution which have provided thus:-
299: The provision of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly-
(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall, respectively, vest in the national Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja.
(b) all the powers referred to in paragraph (a) of this Section shall be exercised in accordance with the provisions of this Constitution; and
(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this Section.
301: Without prejudice to the generality of the provisions of Section 299 of this Constitution, in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if- (a) references to the Governor, Deputy Governor and the executive council of a state (howsoever called) were references to the President, Vice-president and the executive council of the Federation (howsoever called) respectively;
(c) references to persons, offices and authorities of a State were references to the persons, offices and authorities of the Federation with like status, designations and powers, respectively; and in particular, as if references to the Attorney-General, Commissioners and the Auditor-General for a state were references to the Attorney-General, Ministers and the Auditor-General of the Federation with like status, designations and powers.
In the case of Okoyode v. FCDA (2005) 27 WRN 97, this Court held as follows:-
“(i) That F.C.D.A. is an agent of agencies of the government of the Federation within the Federal Capital Territory and therefore not an agency but an agent of agencies.
(ii) That the Minister of Federal Capital Territory is exercising a delegated function pursuant to section 18 of Federal Capital Territory Act and therefore not an agent of Federal Government.
(iii) That the Minister is not exercising any authority or jurisdiction of the executive under Section 19 (b) of the Federal Capital Territory act and so not an agency of Federal government under Section 251 (1) (5) of 1999 Constitution.”
It is with the above in view that, one is unable to see how the provisions of the local government council of Abuja can have the imposition of its levy for the registration of business premises slotted into the provisions of Section 251 (1) (b) of the 1999 Constitution so as to vest the Federal High court with the authority to adjudicate in such a matter. For clarity, I shall quote the said Section 251 (1) (b) which is as follows:-
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters.
(b) Connected with or pertaining taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation.”
In whatever way the claims of the Plaintiffs/Appellants are looked at, they neither fall into matters within Companies and Allied matters Act CAMA or Companies Income Tax act, CITA or such as can by any stretch of legislative interpretation would AMAC be taken or referred to as an agent or agency of the Federal Government in order to smuggle in the process or suit into the Federal High Court. For want of a better language there is no vacancy therein to accommodate such a venture and the trial Federal High Court was right to have hung its decision on Okoyode v. FCDA (supra) to arrive at its decision that it lacked the jurisdiction to adjudicate since the Business Premises Levy in issue does not qualify within the ambit of Taxation which would have given that Court the jurisdiction needed to proceed.
I answer the question raised in favour of the Respondent and against the Appellant.
ISSUE NO. 2:
Whether the Federal Government or any of its agencies must be a party to a suit founded on taxation of companies and brought under Section 251 (1) (b) of the 1999 Constitution for the Federal High Court to assume jurisdiction.
Learned Counsel for the Appellants contended that a careful consideration of the questions or issues for determination, the reliefs and affidavit in support of the Originating Summons contained on pages 3-8 of the records reveal that the Appellant’s action is founded on taxation which the Federal High Court has jurisdiction to entertain by virtue of Section 251(1)(b) of the Constitution. That a court is competent when the subject matter like this matter here of taxation is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. He cited Madukolu v. Nkemdilim (1962) 25 SCNLR 341.
Mr. Ediru further stated that, it is the claim of a plaintiff, the Appellant herein which is taxation of companies that determines the jurisdiction of the Court and here it is Federal High Court. He cited Obi v. INEC (2007) 11 NWLR (pt. 1046) 565 at 580; Onuorah v. K.R.P. Co. Ltd (2005) 16 WRN 1 at 12 – 13; Okoyode v. F.C.D.A. (2005) 27 WRN 97 at 130.
For the Appellants, it was further contended that party jurisdiction pre-supposes that the law, Section 251 (1) (b) of the 1999 Constitution under which the suit is instituted has provided for the manner or class of persons subject to the jurisdiction of the court. That the section neither limited taxation to that by the Federal Government or any of its agencies nor has it made any of them the class of persons subject to the jurisdiction of the court under the section. That there is nothing in Section 251 (1) (b) of the Constitution to suggest that in order for the Federal High Court to assume jurisdiction over matters brought there under, the Federal Government or any of its agency must be a party. That it is not the law that a consideration of the parties is a sine qua non for vesting the Federal High court with jurisdiction. He referred to Tanarewa (Nig.) Ltd. v. Plastinfarm Ltd. (2003) 14 NWLR (pt. 840) 355 at 361 and 362.
Mr. Ediru went on to say that the subject matter of the Originating summons is taxation of companies, which the Federal High Court has jurisdiction to entertain by virtue of Section 251 (1) (b) of the 1999 Constitution. That the subject matter of taxation of companies being one within the jurisdiction of the Federal High Court and it was unnecessary for the trial court to determine whether ANAC is or not an agency of the Federal Government since Section 251 (1) (b) does not say that the taxation must be by the Federal Government or any of its agencies. That Section 251 (1) (b) of the Constitution mentions taxation of companies or persons subject to Federal taxation, consequently, the class of persons vested with authority under the section are any person or body statutorily empowered to impose that, Federal Government or agencies, states or their agencies and Local Governments on their agencies. That the Defendant (AMAC) is a Local Government statutorily empowered to impose that, and therefore falls under Section 251(1) (b) of the 1999 Constitution and the Appellants are companies competent to bring an action under the section. That the Originating Summons before the Lower court seeking a declaration that the statutory authority of the Respondent/Defendant (AMAC) to impose tax does not extend to the Appellants as companies by way of licensing.
For the Respondent, it was argued that for the provision of Section 251(1)(b) 1999 Constitution to apply the suit must involve taxation of companies and all other persons subject to federal taxation, it must be an action challenging the validity of the tax imposed by a Federal Government Agency. That one of the basic conditions enumerated in Section 251(1)(q) of the 1999 Constitution must be present to vest jurisdiction on the Federal High Court, anything short of that the jurisdiction of the Federal High court will be clearly ousted.
Mr. Tunyan said, there are spelt out factors that determine whether an organization is an agent of the Federal Government or not. He cited NRC v. Cudjoe (2008) 19 NWLR (pt. 1095) 329; Section 299 of the Constitution of the Federal Republic of Nigeria, Section 301 CFRN 1999.
Learned Counsel for the Respondent stated that the Constitutional provisions in Section 301 are very clear and devoid of ambiguity.
That it is settled that where a provision of a statute is clear and unambiguous, effect should be given to them in their natural meaning except where to do so will lead to absurdity.
He cited NOHB v. Ajoku (2000) 12 NWLR (pt. 682) 626; Okoyode v. FCDA (2006) All FWLR (pt. 298) 1200 at 1208.
That it is undisputable therefore, that by the constitutional provisions i.e. Section 299 and 301 quoted above the FCT is in law a state or should be treated as one of the states of the Federation. He said it follows that those bodies like Abuja Municipal Area Council are to be regarded as agencies of a state quite separate and independent of the Federal Government. He cited Fawehinmi v. Babangida (2003) 3 NWLR (pt. 808) 604 at 623; Oyakhire v. Umar (1998) NWLR (pt. 542) 438 at 440; Cap 7, AMAC, Commercial/Trade Premises Bye-Law 2001.
In the question herein raised the Appellant is of the posture that the issue or subject matter of the suit being taxation, the Federal Government or any of its agencies need not be parties before the action can be entertained by the Federal High Court under the empowerment of section 251(1) (b) of the 1999 Constitution.
The Respondent on the other hand contends that for section 251(1) (b) to apply the matter in dispute has to be a challenge on taxation imposed upon by the Federal Government or its agencies which, Mr. Tunyan posits is not the case here. Indeed, considering all that is available including the claim of the Appellant, the matter does not come within the scope of taxation of companies as envisaged by Companies And Incomes Act (CITA) nor under Companies and Allied Matters (CAMA) for the jurisdiction of the Federal High Court to be invoked. I would refer to the case of: National Orthopedic Hospital Board & anor v. Godfrey Ajogwu (2000) 12 NWLR (pt. 682) 626 where this court held thus:-
1. The phrase ‘any of its agencies’ as contained in Decree NO. 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions. University of Abuja v. Ologe (1992) 4 NWLR (pt. 445).
2. ‘Agency’ has been described as a relationship where one person consigns the management of some affair, to be transacted on his account to another. Or where one party is authorised to do certain acts for,or in relation to the rights or the property of the other. It means more than tacit permission and involves request, instruction or command.
3. The relationship of agency is generally said to exist wherever any person called the agent has authority to act on behalf of another called the principal and consents to act.
Niger Progress Limited v. North East Line Corporation (1989) 3 NWLR (pt. 107) 68; Modebe v. Okedigbo (1992) 9 NWLR (pt 263) 1; University of Calabar v. Ephraim (1993) 1 NWLR (pt. 271) 551; Olufosoye v. Deacon Fakorede (1993) 1 NWLR (pt. 272) 747; R.E.A.N. Ltd. v. Aswani iles Industries Ltd. (1991) 2 NWLR (pt. 176) 639.
4. Having been reproduced as Section 251 (1) (a) – (s) in the 1999 Constitution of the federal Republic of Nigeria, the provisions of section 230 (1) (a) – (s) of the 1979 Constitution as amended by Decree No. 107 of 1993 is part of Nigerian Constitutional legal system.
5. A claim for declaration affecting the validity of the action of a Federal Government agency comes within what can only be exclusively adjudicated upon by the Federal High court by virtue of section 230 (1) (q) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993. University of Abuja v. Ologe (1992) 4 NWLR (pt. 445) 706; Onyenucheya v. Military Administration of Imo State (1997) 1 NWLR (pt. 482) 429; Akegbejo v. Ataga (1998) 1 NWLR (pt. 534) 459; Ali v. Central Bank of Nigeria (1997) 4 NWLR (pt. 498) 197; Ayeni v. University of Ilorin (2000) 2 NWLR (pt. 644) 290.
6. A proviso to a section of law cannot negate the express provision of that section. It will be abused if it were to be otherwise. Ayeni v. University of Ilorin (2000) 2 NWLR (pt. 644) 290; Ali v. C.B.N. (1997) 4 NWLR (pt. 498) 197.
7. Where words of a statute are a clear and unambiguous, effect should be given to them in their natural meaning except where to do so will result in absurdity. Udoh v. O.H.M. Board (1993) 7 NWLR (pt. 304) 139; Okumagba v. Egbe (1965) 1 All NLR 62; African Newspapers (Nig.) Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (pt. 6) 137; Awolowo v. Shagari (1979) 6 – 9 SC 622; Fasakin v. Fasakin (1994) 4 NWLR (pt. 340) 597; Tanarew (Nig.) Ltd. v. Plastifairm Ltd (3002) 14 NWLR (pt. 840) 355.

There are several instances at which a particular court may lack jurisdiction. It may lack the territorial jurisdiction where the subject matter before it may not be within the limits of its jurisdiction.
The court may also lack jurisdiction by its composition or by the fact that the matter was not initiated by due process of law. Per Edozie J.C.A (as he then was) in Okoi v. Ibiang (2002) 10 NWLR (pt. 776) 455 at 469; Madukolu v. Nkemdilim (1962) 2 SC NLR 341; Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (pt. 825) 416 (SC).
Courts only consider a justifiable controversy upon existing state of facts and not upon hypothetical dispute or academic discourse.
The High Court of a State has no jurisdiction in matters provided under section 230(1)(d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 except in disputes between an individual customer and his bank in respect of a transaction between the individual customer and the bank. In other words, Section 230(1)(d) of the said Decree provides a limitation to the general and all embracing jurisdiction of a State High court because the items listed under Section 230 (1) (d) can be determined exclusively only by the Federal High Court. See 7-Up- Bottling Co. Ltd v. Abiola & Sons Bottling Co. Ltd (2001) 13 NWLR (pt. 730) 465; N.D.I.C. v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (pt. 490) 735.
For the purpose of determining the exclusive jurisdiction of Federal High Court under Section 230(1)(d) of Decree No. 107 of 1993, the court must carefully examine the facts of the case to see whether they justify the application of the subsection.
By virtue of section 251(1)(q), the interpretation of the provisions of the 1999 Constitution is vested in the Federal High court in so far as it affects the Federal Government or any of its agencies. To be specific, Section 251 (1) (q) and (r) puts it beyond any doubt that the Federal High Court has the power to enter into adjudication on any action or proceeding seeking declaratory and injunctive reliefs. Indeed, the Section defines the jurisdiction of the Federal High Court. Per Aderemi J.S.C; Obi v. I.N.E.C (2007) 11 NWLR (pt. 1046) 565 at 636.
When the term notwithstanding is used in a section of a statute it is meant to exclude an impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that as used in Section 251 (1) of the 1999 Constitution no provision of the constitution shall be capable of undermining the said section.
From the foregoing, I have no hesitation in answering the question raised in favour of the Respondent. It is true that the Federal Government or any of its agencies need not be party to a suit to enable the Federal High Court assume jurisdiction in matters of taxation of companies, however that question seems to me moot in the present circumstances since the subject matter is not taxation of companies.
ISSUE NO. 3:
Whether an order striking out the Originating Summons of the Appellants/Plaintiffs is the proper order to make after declining jurisdiction to entertain same in view of section 22(2) of the Federal High court. Act Cap. F12, Laws of the Federation of Nigeria, 2004.
Learned counsel for the Appellants said the Lower court ought to have transferred the Originating summons to the Federal Capital Territory High Court when it declined jurisdiction to entertain same. That Section 22 (2) of the Federal High Court Act provided as such. That, where a specific remedy is given by a statute, providing a remedy different from that clearly stated would be going outside and violating that stipulated. He cited Mokelu v. Federal Commissioner for Works & Housing (1976) 1 NMLR 329; Aluminium Manufacturing Co. Ltd Nigeria Ports Authority (1987) NSCC 224; Okoi v. Inah & ors. (2002) 23 WRN 78.
Learned Counsel for the respondent stated that striking out the suit for lack of jurisdiction instead of transferring the suit to the High court of FCT was a discretion exercised judicially and judiciously. That the wordings of section 22 (2) of the Federal High court Act are quite clear and the court was at liberty to exercise its discretion one way or the other. That the word ‘MAY’ as used in the wording of the Act gives the court a discretion and not and cannot be interpreted as ‘SHALL’ in this con. That the word ‘MAY’ is permissive and it is not absolute as only an absolute enactment such as that which carries the word ‘SHALL’ must be obeyed or fulfilled exactly but it is sufficient of a directory enactment such as ‘MAY’, as in this case is obeyed substantially. He referred to INEC v. Iniame (2008) 8 NWLR (pt. 1088) 182 at 202; Black’s Law Dictionary 8th Edition P.1000; Okoye v. NCFC Ltd (1991) 6 NWLR (pt. 1092) 270 at 296.
In reply on points of law, learned Counsel for the appellants said the proper order when there is incompetency of the Federal High court is to transfer the case to the High Court of FCT.
He cited Akinbobola v. Plisson Fisko (Nig.) Ltd (2004) 22 WRN 52 at 64. That the word ‘may’ under Section 22 (2) of the Federal High Court Act is to be interpreted mandatory and that whenever the Federal High Court declines jurisdiction; it can only transfer the suit and not strike it out. He cited Inah v. Ukoi (2002) 23 WRN 78 at 122.
In answering this poser, I would like to say that there seems to be divergent views even conflicting from the Supreme Court as to what the Court should do when it has discovered it has no jurisdiction, whether to strike the matter out or to transfer to the Court with the jurisdiction to adjudicate. In the case of Mokelu v. Federal Commissioner for Works & Housing (1976) NSCC 187.
The Federal Revenue Court decided that it had no jurisdiction to entertain this action for determination of compensation payable for compulsory acquisition of land under Public Lands Acquisition Act; and struck out the action. The appellant appealed to the Supreme Court which held:-
1. The conclusion reached by the Federal Revenue Court that it had no jurisdiction is correct.
2. The order striking out the case is wrong as the Federal Revenue Court ought to have transferred the case to the appropriate High Court in pursuance of the provisions of Section 22 (2) of the Federal Revenue Court Decree, 1973.

Once a court declines jurisdiction to entertain a suit, the only other step it could take in the matter is to make an order striking out the suit.
Any other order or pronouncement made by the court after declining that it lacks jurisdiction to entertain the suit is null and void and of no effect. Obi v. I.N.E.C. (2007) 11 NWLR (pt. 1046) 565 at 629 per Aderemi J.S.C.It is now trite to say that in the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by Section 6 (6) (b) of the Constitution. Dangtoe v. Civil Service (2001) NSCQR 328 (SC).
It it therefore in my humble view that I would seek shelter in Obi v. INEC (2007) 11 NWLR (pt. 1046) 565 of the Supreme Court, which decision is current that once there is absence of jurisdiction, the Court just cannot do anything else except to strike out the matter. If the Court were to transfer, it means the court is saying there is limited jurisdiction or a conditional jurisdiction by which after stating that it lacks jurisdiction, the same court would proceed upon no foundation or base to carry out a judicial function like transferring the suit to another court imbued with the appropriate jurisdiction.
I see no basis upon which that should apply. It is therefore safe to say, that the Trial Court of the Federal High Court was correct in striking out the suit and doing nothing else.
This appeal lacks merit and is dismissed. I affirm the decision and order of striking out of the suit by the Federal High Court.
Parties to bear own costs.

JIMI OLUKAYODE BADA, J.C.A: I read before now the lead Judgment of my learned brother MARY U. PETER-ODILI, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
It is also my view that the appeal is unmeritorious and it is dismissed by me.

ABDU ABOKI, J.C.A: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Mary U. Peter-Odili, J.C.A. I agree with the reasoning and conclusion contained therein. I also dismiss this Appeal and affirm the decision as well as the Order of striking out of the suit by the Federal High Court.

Appearances

Mr. E. M. EdiruFor Appellant

AND

Respondent and Counsel absentFor Respondent