PEACE MASS TRANSIT LIMITED v. FEDERAL CAPITAL TERRITORY & ORS
(2014)LCN/7225(CA)
(2014) LPELR-23740(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/A/98/2011
RATIO
WORDS AND PHRASES: LOCUS STANDI
Locus standi is a status which a plaintiff must possess before being heard in court. per AMIRU SANUSI, OFR, J.C.A.
DETERMINING WHETHER A PLAINTIFF HAS LOCUS STANDI
The question whether or not a plaintiff has a locus standi in a suit is determinable from a totality of all the averments in his statement of claim or supporting affidavit as in this instant case. Where the averments of a plaintiff’s statement of claim or affidavit disclose the rights or interest of the plaintiff which have been or are in danger of being violated, invaded or adversely affected by the act of the defendant, the complaint of such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject-matter in issue. See MOMOH Vs OLOTU (1970) 1 ALL NLR 117, ADESANYA Vs PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112, ELESO Vs GOVT OF OGUN STATE (1990) 2 NWLR (PT. 113) 420, OLORIODE Vs. OYEBI (1984) 1 SCNLR. 390 per AMIRU SANUSI, OFR, J.C.A.
JUSTICE
AMIRU SANUSIJustice of The Court of Appeal of Nigeria
OFRJustice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEINJustice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSONJustice of The Court of Appeal of Nigeria
Between
PEACE MASS TRANSIT LIMITEDAppellant(s)
AND
1. FEDERAL CAPITAL TERRITORY
2. MINISTER, FEDERAL CAPITAL TERRITORY
3. MR. CHARLES U. IKPARespondent(s)
AMIRU SANUSI, OFR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, sitting in Gwagwalada, Abuja (the lower court for short) delivered by Hon. Justice M. Balami on 21st day of July, 2010.
The brief facts of the instant case are that the Appellant herein, as plaintiff at the lower court, by an original summons on 4/10/2009 commenced an action against, the Respondents as defendants thereat. In the said originating summons, the Appellant/Plaintiff presented the following questions for the trial court’s determination, to wit-
“1. Whether the defendants can collect taxes, levies and tolls outside the area specified in part 1 Taxes and Levies to be collected by the Governments Taxes and Levies of (Approved List for collection) Act 1998, which now form the provision of Schedule IV Part III of the 1999 Constitution of the Federal Republic of Nigeria.
2 Whether the 1st defendant’s letter of introduction of the levy/rate dated the 14th day of September, 2009 and another letter dated the 26th day of September, 2009 and served on the plaintiff. Private Motor Park and loading bay at Utako, Abuja is not in conflict with the provision of Part III, of the 1999 Constitution of the Federal Republic of Nigeria.
3. Whether it is not the joint tax board that is the body charged under the provision of Nigeria Tax Law to harmonies (sic) the administration of tax across the Federation.
4.Whether the defendants have the power and capacity of (sic) legislate, determine and demand whatsoever, taxes, levies and rate they deem fit from time to time outside the provision of part III taxes and levies to be collected by Government taxes and levies (approved list for collection).
The reliefs sought by the Appellant are as follows:
I. A Declaration that the imposition, demand and collection of approved rate of fifty (N50) Naira per passenger levy in the Plaintiffs private parks and loading bay at Utako Abuja and other parts of Abuja is illegal tax, ultra vires, the Taxes and Levies Approved List of Collection Act.
II. A Declaration that the revenue franchise granted the 1st defendant by the FCT Minister regarding insurance and manifest levy is illegal and ultra vires the Taxes Levies Approved List for Collection Act No.2 of 1998.
III. A Declaration that the use of agents, men of the Nigeria Police Force in imposing, demanding and collecting the manifest and insurance levy is illegal and ultra vires the Taxes and Levies Approved List for Collection Act No. 21.
IV. An order of perpetual injunction restraining the defendants, their agents, privies and any other person acting through them from imposing demanding and collecting illegal tolls, ticket, and imposed rate of fifty (N50) Naira per passenger levy on the plaintiff’s Buses operating in the plaintiff’s Private Parks and loading bay in Utako Abuja and other parts of Abuja.
The Appellant’s originating summons was supported by 15 paragraphs affidavit and a written address of counsel. Also attached to the originating summons are four documentary exhibits to wit:
i. Exhibit ‘A’ – Letter dated 14/9/2009
ii. Exhibit ‘B’ – Letter dated 12/10/2009
iii. Exhibit ‘C’ – Letter dated 24/9/2009
iv. Exhibit ‘D’- Letter dated 26/9/2009
The Appellant also filed a motion on notice for an order of interim injunction against the defendants. The said application was granted at pages 41 – 42 of the record of appeal. The Appellant further filed a motion on notice praying the court for an order of interlocutory injunction restraining the Defendants/Respondents, the agents, servants, workmen, privies or persons claiming through them from imposing, demanding and collecting the payment of N50.00 per passenger in addition to the existing transport fare in the Plaintiff’s private motor park in Utako and other parts of FCT Abuja, pending the hearing and determination of the substantive suit.
Reacting to the said appellant’s motion for interlocutory orders, the defendants through their learned counsel filed a 10 paragraph counter affidavit along with a written address of counsel. Attached to the counter affidavit also are photostat copy of the City Newspaper of Friday 30th October, 2009 Exhibit ‘A’ and Leadership publication of 24th September, 2009. In his written address in support of the counter affidavit, the learned counsel for the Defendants/Respondents raised two (2) issues for determination to wit:
1. Whether the plaintiff has the locus standi to institute this suit.
2. Whether the plaintiff is entitled to his claim in this suit.
The Appellant filed a further and better affidavit of 4 paragraphs supported with five (5) documentary exhibits and counsel’s written address. The annexed Exhibits to the further affidavit are as follows:
a. Exhibit ‘A’, – Agreement on Travelers Insurance (TIPAS/MANIFEST)
b. Exhibit ‘B’ – Intercontinental Bank Cheque dated D1/09/09.
c. Exhibit ‘C’ – Peace Mass Transit Ltd – Passengers Manifest
d. Exhibit ‘D’ – Letter from the office of Joint Tax Board UTB) dated 13/3/2008.
e. Exhibit ‘E’ – Judgment of Abia State High Court Aba dated 11/2/2010.
On 25/11/2009, the trial court delivered its ruling, refusing the appellant’s application for interlocutory orders against the defendants. The Appellant was agitated by the outcome of the ruling and he thereupon filed a Notice of Appeal against same, it further brought an application by motion on notice, praying the trial court for an order staying the proceedings in the matter pending the determination of his Appeal on the ruling of 25/11/2009. The trial court in its considered ruling of 19/3/2010 refused the Appellant’s application and ordered the transfer of the suit from the undefended list to general cause.
The trial court sat in the matter on 23/4/2010, wherein the court adjourned the case to 25/5/2010 for adoption of written addresses of learned counsel. The written addresses of learned counsel were duly adopted on the 25/5/2010. The trial court on 21/7/2010 delivered its judgment where it held inter alia:
“From the totality of the court consideration the Honourable Court is of the view that plaintiff in this case has not shown any legal right to file this action against that is on ground of locus standi; and further holds that all the reliefs sought on the face of the plaintiff originating summons filed before the Honourable court must fail, and this is the order of the Honourable Court, and the said case is now dismissed, without any cost”.
The Appellant became piqued with the decision of the lower Court and he appealed to this court vides Notice of Appeal dated 18/8/2010 and filed. The said Notice of Appeal contains (6) six Grounds of Appeal reproduced below shorn of their respective particulars. The grounds of appeal read thus:
“GROUNDS OF APPEAL
1. The Judgment of the trial court is unreasonable, unwarranted and cannot be supported having regards to the weight of the evidence before it
2. The trial court erred in law when it held “that the 1st defendant in this case, who is the Federal Capital Territory Administration is not a person to sue and be sued that the for proper order for this honourable court to do is to strike out its name from the cause list”.
3. The trial court erred in law and misdirected itself when it held “the action of the defendants in this case is an Administrative policy ……………. as it can rightly be seen in the Dally Trust of Tuesday July 20th, 2010 page 46, where it was titled FCT Insurance Scheme pays accident victims” this occasioned a miscarriage of justice.
4. The trial court erred in law and misdirected itself when it held inconsistently as follows:- “The Honourable Court wish to disagree with the submission of the defendants paragraph 4.7 ….. ” And at another breath the court held “that even such a scheme is operated by the plaintiff, but insurance scheme has nothing to do with that of the Defendants, nor make any reference to it premium in its scheme which is a condition preceded for operation of such scheme”.
5. The trial court erred in law when it held “the FCT Welfare Insurance Scheme cannot be rightly referred to as Taxes/Levies (approved list for collection) Act 1988 in that this scheme did not introduce any law, taxes/levies……………. ” This occasioned a miscarriage of justice.
6. The trial court erred in law when it held, “On the issue of locus standi the honourable court is still very much in agreement with defendants counsel and hold that the plaintiff in this case has failed to show its interest in this case and although he is a transporter, the Honourable Court cannot understand how its interest is being attached this occasioned a miscarriage of justice”.
In accordance with the rules of this penultimate court, the parties through their legal representatives filed, exchanged and adopted their Briefs of Argument in support of their various contentions in this appeal. The appellant’s Brief of Argument was dated 4/2011 and filed on 19/4/2011 while his Appellant’s Reply on point of Law was dated 19/11/2013 and filed on the same date which also were settled by S. M. ATTAH ESQ. The Respondents’ Brief of Argument dated 22/412013 and filed on 25/4/2013 was settled by FELIX C. OBIAMALU ESQ. The appeal was taken on 24/2/2014.
In the Appellant’s Brief of Argument, the learned counsel for the Appellant formulated (6) six issues for determination of this appeal. The Appellant’s issues read thus:
1. Whether the imposition of the sum of N50.00 per a passenger amounted to a breach of Part 1 taxes and levies (Approved List for Collection) Act 1998 or Section 3 Vol. 14 LFN 2004 or in conflict with Part II Section 7 – 10 of the 1999 Constitution and whether the imposition by the Respondents is a mere scheme or an Administrative Policy imposed by the Minister of FCT and have no bearing with the aforementioned Acts.
2. Whether the trial court can suo motu raise an issue without calling upon the parties their counsel to address it on the said issue before arriving at a decision based on the issue.
3. Whether the Appellant has a locus standi in this matter to go to court or it is the passengers themselves or any of the parties (Appellant or the passengers) that have the right.
4. Whether the Respondents can enforce the insurance scheme on the passengers who are the Appellant’s customers to enter into insurance agreement without the appellant been (sic) affected or concerned in the implementation of the policy or imposition.
5. Whether the trial court can make an inconsistent holding in a judgment and yet sustain the judgment as been (sic) correct and a good one.
6. Whether the Appellant is entitled to the Claims/Relieve (sic) before the trial court or not.
Appellant’s Issues 1 & 6 (jointly argued).
The learned counsel for the Appellant submits that the Respondents are not authorized under the Taxes and Levies Act of 1998, Vol. 14 Laws of the Federation of Nigeria (LFN) 2004 to impose levies on any taxation without the enactment of the National Assembly. The learned counsel refers to the letter which the Appellant wrote to the joint Tax Board, as a body saddled with the responsibility of harmonizing the Administration of taxation across the Federation to ascertain the legality of a similar amount on the passengers in her motor park at Onitsha Anambra State in the year 2000. He further refers to pages 94 – 95 of the record bearing the circular from the Joint Tax Board in reaction to the Appellant’s report.
It is the further contention of the Appellant’s counsel that the trial court did not consider the circular from the Joint Tax Board as tendered by the Appellant, hence it wrongly decided in favour of the respondents. He urged this court to hold that the act of imposition of N50.00 on the passengers of the Appellant is illegal as same has no legal backup under the Act.
Appellant’s Issue 2
The learned counsel for the Appellant submits that the trial court denied the Appellant of the right of fair-hearing when it suo motu raised the issue of proper parties before the court and without calling on the parties to address it on that but it went ahead to strike out the name of the 1st Respondent from the suit. Relying on the authorities of KRAUS THOMPSON Vs UNIVERSITY OF CALABAR (2004) 6 NISC 3 AT 267, UGO Vs OBIEKWE (1989) 1 NWLR (PT. 99) 566, MOJEKWU Vs IWUCHUKWU (2004) 7 MISC 120 AT 142, the learned counsel argues that on no account should a court raise a point or issue suo motu, no matter how clear it may appear to be, without inviting the parties to address it on the point.
The learned counsel pointed out that the trial court relied on a Newspaper publication of a day before its judgment. He further contends that the lower court suo motu raised the issue of published material, evidencing, the accident victims. He argues that by so doing, the Appellant was of his right to fair hearing as the court did not the parties to address it on the issue, yet the court relied on the publication to arrive at its decision. He refers to the cases of ADIMORA Vs AJUFO (1988) 3 NWLR (PT. 80) 1, USMAN Vs UMARU (1992) 7 NWLR (PT. 254); ISHOLA Vs UBA (2005) 6 MISC 34 AT 50 -51.
Appellant’s Issue 3
The learned appellant’s counsel contends that the appellant owns the commercial vehicles which passengers enter for conveyance to their various destinations. On this note, he submits that the Appellant has an interest in the matter before the court. He refers to the case of Owodunni vs. Registered Trustee (2000) 6 SCNJ at 416. He also referred to paragraphs 3(d) – (e) of the appellants Further and Better Affidavit at P.51 of the record. He further refers to page 70 of the record where the Respondents conceded in their counter affidavit, to the fact that the policy has effect or influence on the Appellant’s business. It is the case of the Appellant that the Respondents were unable to show or establish the law they were acting upon. He submits that since the Appellant has shown sufficient interest and cause to institute the action, the Appeal Court should hold that in the interest of justice, it has locus standi.
Appellant’s Issue 4
On this issue the Appellant’s counsel pointed out that the use of task force by the Respondent to enforce compliance by the Appellant’s passengers no doubt would cause commotion or disagreement at the Appellant’s motor park, thereby lowering the business reputation of the Appellant. In re-emphasizing the locus standi of the appellant in the suit, the learned counsel refers once more to the case of AJILOWURA Vs IDRISU (2006) 10 MJSC 78 at 104 – 105.
Appellant’s Issue 5
The learned counsel for the appellant in addressing this issue refers to the opinion of the trial court at pages 150 and 153 of the record respectively; He submits that in addressing the crucial issue on the law backing the action of the Respondent, the trial judge at a point agreed in toto with the submission of the Defence Counsel and later disagreed with the same submission of the Defence counsel. The learned counsel contends that the inconsistency in the said judgment is misleading and confusing. On the whole, he urges that the appeal be allowed.
In reply to the Appellant’s Brief of Argument, the learned counsel for the Respondents formulated three issues for determination of this instant appeal. The said Respondent’s issues read thus:
“The Respondent’s Issues
(i) Whether in (sic) Appellant has the locus standi to institute the action.
(ii) Whether the learned trial court was right when it held that the 1st Respondent is not a juristic person.
(iii) Whether the FCT Passenger Welfare Insurance Scheme is a Tax within the intendment of the Taxes and Levies (Approved List for Collection) Act 1998.
Respondent’s Argument on the Issues –
Issue (1)
The learned counsel for the Respondent challenged the contention of the Appellant on the issue of locus standi as misleading. He argues that the Appellant has no right recognized by law as the subject-matter of litigation is purely a public interest. He referred to the cases of A.G. LAGOS STATES VS A.G. FEDERATION (2004) 18 NWLR (Pt. 904) 1 at 126, LADEJOBI Vs OGUNTAYO (2004) 18 NWLR (904) 149 at 173 and ENEMUO Vs. DURU (2004) 9 NWLR (PT 877) 75 at 144. It was further Respondent’s counsel that Section 6(6) of 1999 Constitution (as amended) (did not dispense with the presence of sufficient interest to ground a standing to sue. He refers to the cases of Adesanya vs. President, FRN & Anor. (1981) 5 SC 112 at 162 and OMEGA BANK PLC Vs. GOVT. EKITI STATE (2007) 16 NWLR (Pt. 1061) 445 at 476. He also cited the cases of FAWEHINMI vs PRESIDENT, F.R.N. (2007) 14 NWLR (Pt. 1054) 275 at 331; BEWAJI Vs. OBASANJO (2008) 9 NWLR (Pt. 1093) 540 at 576 and 12 many other authorities on locus standi. He argues that the trial court was right in holding that the Appellant lacks the locus standi to institute the action. He therefore urged that the Appeal Court should resolve this issue in favour of the Respondents.
ISSUE (II)
The learned Respondents’ counsel emphasized that oral argument on the legal personality of the 1st Respondent had earlier been canvassed by both parties. He refers to pages 150-151 of the record. He further argued that even if the court had raised and resolved the issue suo motu, it did not lead to miscarriage of justice. He refers to the cases of OSASONA VS. AJAYI (2004) 14 NWLR (Pt. 894) 527 AT 549 and OKOTIE-EBOH vs. MANAGER (2004) 18 NWLR (Pt. 905) 242 at 277. He further refers to the cases of ADMIN 1 Exec., ESTATE ABACHA Vs EKE SPIFF (2009) 7 NWLR (Pt. 1139) 97 at 126; OBUMSELI Vs UWAKWE (2009) 8 NWLR (Pt. 1142) 55 at 76 – 77 and IBORI v. AGBI (2004) 6 NWLR (Pt. 868) 78 at 119.
It is the further contention of the Respondents’ counsel that the court’s mention of the Daily Newspaper publication of Tuesday 20th July, 2010 in the Judgment fees not lead to a miscarriage of justice. He refers to the cases of ARCHIBONG Vs STATE (2004) 1 NWLR (Pt. 855) 488 at 512, ORISAKWE Vs STATE (2004) 12 NWLR (Pt. 887) 258 at 286, CRAUS THOMPSON ORG. LTD V UNICAL (2004) 9 NWLR (Pt. 879) 631 at 465 and SBN PLC Vs. B.A.O. Plc. MOTOR (NIG) LTD. (2004) 7 NWLR (Pt. 873) 579 at 597.
ISSUE (III)
The learned counsel for the Respondents emphasized that the subject matter of this suit is the alleged violation of the Taxes and Levis (Approved List for Collection) Act 1998. He submits that the 2nd Respondent is an appointee of the President of the Federal Republic of Nigeria who by the provision of Section 299 of the 1999 Constitution as amended, is the Governor of the Federal Capital Territory, Abuja. He argues that the FCT passenger Welfare Insurance Scheme is a policy of the 2nd Respondent premised on Section 14(2)(c) of the 1999 Constitution (as amended) for the Welfare of the citizenry which is fundamental objective of government. He refers to the case of KABIRIKIM VS. EMEFOR (2009) 14 NWLR (Pt. 1162) 602 at 641. He states that the appellant misconceives the concept of the ‘FCT Passenger Welfare Insurance Scheme’ which is founded on the existing Insurance Act aimed principally for the benefit of travelers from the FCT.
It is the further submission of the learned Respondents’ counsel, that Passenger Welfare Insurance Scheme is not a tax or levy, but a government administrative policy to enforce the provisions of the existing laws on Insurance, thereby safeguarding the lives of persons travelling out of the FCT. He refers to Section 4 of the FCT Act and the case of I.G.I. Co. Ltd. vs. ADOGA (2010) 1 NWLR (Pt. 1175) 337 at 358.
The learned counsel argued that the learned trial judge had duly considered the documents exhibited by the appellant but found them not relevant. He referred to the opinion of the trial court at page 151 of the records. On the alleged imposition of tax/levy, the learned counsel referred to the defendant’s counter affidavit at pages 69 – 70 of the record. He further refers to Sections 147, 148 and 302 of 1999 Constitution and Section 4(1)(e), 18(d) FCT Act Laws of FCT Nigeria. Responding to the Appellants submission that all the letters written to it by the Respondents bore “Passenger Insurance Scheme and Road Taxes, the Respondents counsel states that the Appellant cannot be allowed to approbate and reprobate at the same time. He refers to the cases of ANIKE Vs. S.P.D.C.N. LTD. (2011) 7 NWLR (Pt. 1246) 227 at 242 and GARUBA Vs. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 at 178. He submitted that even if the FCT Passenger Welfare Insurance Scheme is a tax, it should be regarded simply as a revenue based collection and also construed in favour of the Respondents. He refers to the case of F.B.I.R. Vs I.D.S. Ltd. (2009) 8 NWLR (1144) 615 at 639. He further argues that the Road Tax is a statutory tax provided for in the 1999 Constitution different from the FCT Passenger Welfare Insurance Scheme. He contends that for the mere fact that the Letter inviting Stakeholders contained both the FCT Passenger Welfare Insurance Scheme and Road Tax is of no moment. On the whole, he urges this court to dismiss the appeal as it lacks in merit.
In reaction to the contention of the Respondents’ Counsel that the issue of 1st Respondent’s juristic personality was argued at page 150 – 151 of the record, the learned counsel for the Appellant submits that pages 150-151 of the record talked about the view of the court. He contends in reliance on the Appellant’s exhibits at pages 6, 9, 11, 23 and 26 of the record, that the 1st Respondent played a leading role in the filing of the instant suit and therefore, the name cannot be removed from the suit without making it an issue for address by both parties. He refers to the cases of AWONIYI Vs. AMORC (2000) 6 SCNJ 141, GARBA Vs. OMOKHODION (2011) 6 SCNJ 334 at 357 and AMBROSE EKENNIA Vs. BENEDICT AKPAKARA & ORS (1997) SCNJ 70 at 87 Para 40 -9.
The learned counsel referred to pages 67, 7th Edition of the Black’s Law Dictionary for definition of “an Agreement and further at page 318 for the definition of a contract? He submits that there is nowhere a contract or an agreement is defined as being coercive or having element of force. He states that the definition of a tax as contained in the respondents’ brief, tallies with the act of the respondents which is a monetary charge imposed by the government on persons to yield public revenue.
On the issue of fresh argument over the respondents’ act as raised by the Respondents in their brief, the learned counsel for the appellant refers this court to 50 paragraph 3(b) of the record of appeal. He submits that the legal authorities cited by the Respondents’ Counsel does not apply in this respect, as they are distinguishable from the present case.
On the issue of locus standi raised by the Respondents’ Counsel, the learned appellant’s Counsel refers to the authority of ADETONA vs. ZENITH INT’L BANK PLC (2011) 18 NWLR (PT. 279) 627 at 654 cited by the Respondent, to submit that the appellant had shown that the implementation of the Scheme will affect her business in that her customers would desert her motor park. He contends that the Appellant is not suing on the contract of insurance, but on the illegal imposition of a tax/fee of N50.00 on her passengers thereby leading to increase in transport fare and consequential loss of customers. He refers to the case of B.M. LTD. Vs. WOERMANN-LINE (2009) 13 NWLR (Pt. 1157). In conclusion, he urges this court to allow the appeal and set aside the Judgment of the trial court.
I have carefully gone through the record of proceedings in this case as emanated from the trial court. I have also painstakingly gone through the arguments of learned counsel for the parties in this appeal. I will now proceed to determine the appeal based on the issues formulated by the appellant in its brief of argument. The said issues have earlier been reproduced in the five paragraphs of this Judgment.
I will now consider the issues seriatim as argued by the appellant.
Issues 1 & 6 (Argued together).
These issues are in tandem with the respondents’ issue 3 on record. I must say that the propelling wind of crisis that triggered the instant litigation was the act of the respondents which the appellant construed to be ultra vires and illegal. It is the case of the appellant that the passenger welfare Insurance scheme vide levy of N50.00 on each passenger leaving or travelling out of the FCT through the appellant’s Commercial Vehicle and Private Motor Park, is a contravention of Part 1 Taxes and Levies (Approved List for Collection) Act 1998, Vol. 14, Laws of the Federation of Nigeria (LFN) 2004 and Sections 7 – 10 of the Constitution of Federal Republic of Nigeria.
The Respondent on the other hand took a shield of defence under Section 14(2)(c), Section 299 of the 1999 Constitution of Federal Republic of Nigeria and the authority of KABIRIKIM Vs MEFOR (supra).
I have closely looked at Chapter 72 of Taxes and Levies (Approved List for Collection) Act 1998 Vol. 21, LFN, 2004. The Act defines “Levy” to include any fee or charge. It went further to define tax authority to mean:
(a) The Federal Board of Internal Revenue, the State Board of Internal Revenue or Local Government Revenue Committee or
(b) A Ministry, Government department or any other Government body charged with responsibility for assessing or collecting the particular tax.
By Section 1, Part 1 of the Act, taxes to be collected by Federal Government are as follows:
1. Company income tax
2. Withholding tax on companies, residents of Federal Capital Territory, Abuja and non-resident individuals
3. Petroleum profit tax
4. Value added tax
5. Education tax
6. Capital gains tax on residents of the Federal Capital Territory, Abuja, bodies corporate and non-resident individuals
7. Stamp duties on bodies corporate and residents of the Federal Capital Territory, Abuja
8. Personal income tax in respect of –
(a) Members of the Armed forces of the Federation
(b) Members of the Nigeria Police force
(c) Residents of the Federal Capital Territory, Abuja; and
(d) Staff of the Ministry of foreign Affairs and non-resident individuals.
Again, Section 7-10 of the Concurrent Legislative List provides that collection of taxes shall be prescribed by the National Assembly.
I also took a look at Sections 14(2)(c) and 299 of the 1999 Constitution as amended, referred to by the Respondents’ counsel in his argument. Section 14(2)(c) states as follows:-
(2)(c)- The participation by the people in their government shall be ensured in accordance with the provisions of this constitution.
Section 299 of the same 1999 Constitution refers to the application of the constitution to the Federal Capital Territory, Abuja.
I have weighed the totality of the arguments of the learned counsel for the parties on this issue. The prescription on taxes and levies (approved list) for collection under the Act is unambiguous. I am at one with the view expressed by the learned counsel for the appellant that before the respondent can introduce any levy or tax on anybody, the validity of such an act must be authorised by the National Assembly. In the instant case, I am unable to find any demonstration of backup in law by the respondent for the imposition of N50:00 on each passenger of the appellant travelling outside FCT.
It is noted by me with due respect, that the references to Sections 14(2)(c) and 229 of the 1999 Constitution by the respondents’ counsel have no bearing whatsoever with the issue at stake. Also the authority of Kabirikim cited and relied on by the respondent has no relevance with the issue at stake. In the light of the ongoing analysis therefore, this issue is hereby resolved in favour of the appellant.
Issue 2
The Appellant’s issue 2 so argued tallies with the argument of the respondents in their issue (ii).
The 1st Respondent is a creation of an Act pursuant to Section 297 of the Constitution of the Federal Republic of Nigeria, 1999. The 2nd Respondent is an appointee of the President of the Federal Republic of Nigeria, pursuant to Section 302 of 1999 Constitution. The Administration of the Federal Capital Territory, Abuja is a creation of the Statute, pursuant to Section 303 of the 1999 Constitution of Nigeria as amended. The 3rd Respondent is an appointee of the 2nd Respondent to be in charge of the operations of FCT Passenger Insurance Welfare Scheme.
It is the grouse of the appellant, that the trial court, suo motu, raised the issue of juristic personality of the 1st Respondent and decided on the issue without calling the parties to address it. The trial court dealt with the issue it raised suo motu and struck out the name of the 1st respondent in its judgment of 22/7/2010. The learned counsel for the respondent in his brief of argument stated that the issue of juristic personality of the 1st Respondent was orally argued in court at the trial. He referred us to pages 150 – 151 of the record.
I have critically looked at pages 150-151 of record of appeal and also rummaged through the entire record could not see or trace any argument advanced or proffered by the parties on the issue of juristic personality of the 1st respondent. What I could see only at the pages of the record under reference is the opinion/views of the learned trial Judge in the judgment of the court. On this note, it is glaringly obvious that the trial court raised the issue, suo motu and decided on the same straightaway without calling the parties to address the court on that vexed issue.
Admittedly, there are occasions when a court may feel that a point which though not raised by one of the parties, calls for consideration in order to reach a correct decision in a case. However, in rare cases when this situation does arise, it is always necessary for the judge to bring it to the parties or their counsel as the case may be, so that they may be invited to address him on the point before he could base his decision on it. It is therefore not competent for the judge to raise the point and decide it without hearing the parties. If he does so, he will be in breach of the hearing and any decision on the issue will be set aside by the appellate court. See Oje vs. Babalola (1991) 4 NWLR (Pt. 185) 207 at 270, Sheldon vs. Bromfield Justices (1964) 2 Q.B. 573, Adegoke vs. Adebiyi & Anor (1992) 6 SCNJ, 136 or 5 NWLR (Pt. 242) 410 and EBOLOR Vs OSAYANDE (1992) NWLR (Pt. 249) 524. In the light of the foregoing, the decision of the learned trial judge by striking out the name of the 1st Respondent from the instant suit is hereby set aside.
Issues 3 &4
At page 153 of the record of appeal, the learned trial judge in his judgment held inter alia:
“From the totality of the court consideration, the Honourable Court is of the view that plaintiff in this case has not shown any legal right to file this action against that is on ground of locus standi; and further hold that all the relief’s (sic) sought on the face of the plaintiff originating summons filed before the Honourable Court must fail; and that is the order of the Honourable court; and the case is now dismissed without any cost”.
I have carefully weighed the arguments of learned counsel for the parties in relation to the instant issue in this appeal.
Locus standi is a status which a plaintiff must possess before being heard in court. The question whether or not a plaintiff has a locus standi in a suit is determinable from a totality of all the averments in his statement of claim or supporting affidavit as in this instant case. Where the averments of a plaintiff’s statement of claim or affidavit disclose the rights or interest of the plaintiff which have been or are in danger of being violated, invaded or adversely affected by the act of the defendant, the complaint of such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject-matter in issue. See MOMOH Vs OLOTU (1970) 1 ALL NLR 117, ADESANYA Vs PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112, ELESO Vs GOVT OF OGUN STATE (1990) 2 NWLR (PT. 113) 420, OLORIODE Vs. OYEBI (1984) 1 SCNLR. 390
In the instant case however, the appellant is a private Commercial Transport Company which owns commercial vehicles and motor parks virtually in all the States of Nigeria including the Federal Capital Territory – Abuja. From the facts on record before this court which had earlier been presented before the trial court, there is no doubt that the appellant, in the light of the averments in paragraphs 3 (d) and (e) of her affidavit at page 19 of the record, disclosed sufficient interest in the subject-matter of her claim and therefore has locus standi.
Having earlier resolved in issues 1 & 6 (jointly argued) that the act of the Respondents is illegal and ultra vires; and also having resolved issue 3 in favour of the Appellant, I think it is of obvious necessity to reproduce the concluding paragraph of the Respondents memo to the Appellant over the act that is being challenged by the Appellant. The passage is found at page 25 of the record of appeal. It reads thus:
“CONCLUSION
As stakeholders in the Transport Sector in FCT. We hereby solicit your active participation and support to ensure the smooth take off and success of the Scheme. Please note that an enforcement team comprising of VIOs and Special Task Force will be on ground at strategic locations in the territory to ensure strict compliance of the scheme”.
The appellant, while reacting to the Respondents’ memo of 14/9/2009 marked Exhibit A at page 23 of the record, caused a memo to the Director, FCT A, Technical Comm. on Revenue Generation, expressing her contractual commitment with Sterling Assurance Ltd on her passengers Insurance in 24 States of the Federation. See Exhibit C at page 27 of the record.
I hold that by virtue of the concluding paragraph of the Respondent reproduced supra, the agents of the Respondents struck as evidenced in paragraph 3(e) of the Appellant’s affidavit at page 20 of the record. Generally speaking, insurance policy is a voluntary contract between one party- the insurer on one part and the other party as the insured. From the facts as could be gathered from record in the instant case, the Respondent measure in implementing compliance is by force. The Respondents’ counsel argued that the act of the Respondents is a public policy geared towards the enhancement of welfare of the passenger. It is clear on record that the Appellant has his own organized insurance scheme which premium is being paid on behalf of the passenger. There is no how, therefore, the Respondents can force the Appellant’s passengers to enter an insurance into agreement without affecting the relationship between the appellant and her customers. When the relationship between a transporter and her customer passengers is soiled, there is the tendency that the business will surely decline.
In the light of the foregoing, resolve issues 3 and 4 in favour of the Appellant.
Now, having resolved all the foregoing, I also hereby resolve issue 3 and 4 in favour of the appellant, I think it is otiose discussing further, the appellant’s issue 5 bordering on the alleged consistency or otherwise of the reasoning of the learned trial judge in his judgment since any finding on that cannot change the pendulum of the clock. I therefore chose not to discuss it since it will serve no useful purpose even if I do same.
On the whole, I hold that this appeal is meritorious and it is hereby allowed by me. The judgment of the High Court of the Federal Capital Territory, sitting in Gwagwalada, Abuja, delivered on 21st July, 2010 by Hon. Justice M. Balami is here set aside. I make no order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Amiru Sanusi, OFR; JCA.
I agree with the reasoning and conclusion of my learned brother that this appeal has merit and I also allow it.
I abide by all the consequential orders, including the order as to costs, made by my learned brother.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the lead judgment just delivered by my learned brother A. Sanusi, OFR, JCA. I am in full agreement with the reasoning and conclusion reached by my learned brother. I also allow this appeal as meritorious. I make no order as to costs.
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Appearances
S. M. Attah with I. C. Nwaokeke and I. I. UgwokeFor Appellant
AND
F. C. ObianialuFor Respondent
