AIRTEL NETWORKS LTD v. ATTORNEY-GENERAL OF KWARA STATE & ANOR
(2014)LCN/7234(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of May, 2014
CA/IL/96/2013
RATIO
LAND: POWERS OF THE GOVERNOR IN RESPECT OF LAW
Now it is without doubt that by section 1 of the Land Use Act, all land comprised in the territory of each State of the Federation are vested in the Governor of the State who is to hold in trust and administer such land for the common benefit of all Nigerians in accordance with the provisions of the Act, and by the clear provisions of sections 5 and 16 of the Act, the Governor has powers in respect of land in any rural or urban area to grant rights of occupancy, to demand rental for any such land granted and to revise the rental as provided in section 16 thereof. per ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: WHETHER THE APPELATE COURT HAS THE DUTY TO EVALUATE EVIDENCE
The Law is that the duty to evaluate evidence and make findings of fact from the evidence is primarily that of the trial Court, and an appellate Court will not readily interfere with such findings or substitute its own views for that of the trial Court unless the appellate Court has been satisfied that the evaluation did not follow the applicable principles or that the findings are themselves perverse. See IRIRI v. ERHURHOBORA (1991) 2 NWLR (Pt. 173) 252; ARE v. IPAYE (1990) 3 SC (Pt. 11) 109; BAMIGBOYE v. UNVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290; EGIRI v. UPERI (1974) 1 NMLR 12; ANYANWU v. MBARA (1992) 6 SCNJ 90; SALAWU v. YUSUF (2007) 5 SC 35; OSOLU v. OSOLU (2003) 6 SC (Pt. 1).Where therefore the trial court has properly evaluated the evidence in the case, it is not the business of the appellate Court to interfere with the findings of fact made by that Court; IDESOH v. ORDIA (1997) 3 NWLR (Pt. 491) 71. per ISAIAH OLUFEMI AKEJU, J.C.A.
CONSTITUTIONAL LAW: INTERPRETATION OF THE PROVISION OF THE CONSTITUTION.
The principle is now well established that in the construction of provisions of the Constitution or any statute, if the words used therein are plain, clear and unambiguous the words must be accorded their ordinary meaning unless where such interpretation will lead to absurdity. See EKULO FARMS LTD v. UNION BANK OF NIGERIA PLC (2006) 4 SC (Pt. 1); FASHAKIN FOODS (NIG.) LTD v. SHOSANYA (2006) 10 NWLR (Pt. 987) 126; ADETAYO v. ADEMOLA (2010) 15 NWLR (Pt. 1215) 169; A.G. BENDEL STATE v. A.G. FEDERATION (1982) 3 NCLR 1; AWOLOWO v. SHAGARI (1979) 6 – 9 SC 73; C.A.C. v. INEC (2007) 12 NWLR (Pt. 1048) 220; N.D.I.C. v. OKEM ENTERPRISES (2004) 10 NWLR (Pt. 880) 107; TEXACO PANAMA INC. v. SHELL SPDCN LTD (2002) 6 NWLR (Pt. 759) 211. per ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
AIRTEL NETWORKS LTD. Appellant(s)
AND
1. ATTORNEY-GENERAL OF KWARA STATE
2. DIRECTOR GENERAL, BUREAU OF LANDS KWARA STATE Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State, sitting at Ilorin delivered on 23/7/2013 in respect of Suit No: KWS/91/2013 which the appellant as claimant had commenced by way of originating summons filed on 12/3/13 for resolution of 10 questions and consequently for the following declaratory and other reliefs:
1. A Declaration that the Defendants do not have the powers and legislative competence to impose taxes, charges, fines, levies, fees, interests or penalties or howsoever described, for telecommunications installations, services and operations and matters ancillary or related thereto, pursuant to the Kwara State Land Charge Law, 2009 having regard to the provisions of section 4(2) and Items 46, 66 and 68 of the Exclusive Legislative List of the 1999 Constitution.
2. A Declaration that the imposition of and demand for land charges on the claimant’s G.S.M. Mast installations in Kwara State as contained in the Defendants’ various demand notices dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter-alia the sum of N84,348,000.00 made pursuant to the Kwara State Land Charge Law, 2009 are inconsistent with the provisions of section 4(2) and Items 46, 66 and 68 of the 1999 Constitution as they relate to the claimants’ telecommunication business and operations and thereby null and void.
3. A Declaration that the claimant by the nature of her business and operations as a telecommunication company is not liable to pay land charges on her GSM Mast installations in Kwara State to the Defendants as demanded by the Defendants in the notice dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter alia the sum of N84,348,000.00 having regard to the provisions of section 1 and part II of the schedule of the Taxes and Levies (Approved List for Collection) Act Cap T2 2004 Laws of the Federation of Nigeria (LFN).
4. A Declaration that having granted Regional Urban Planning permission and collected assessed fees (levies) from the claimant for the installation of her GSM Masts at various locations in Kwara State; the Defendants are not entitled and justified to demand for other levies/fees/tax under the guise of land charge as contained in the various demand notices dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter-alia the sum of N84,348,000.00
5. A Declaration that the imposition on and demand for Land Charge by the Defendants on the claimants with respect to her GSM Mast installations in Kwara State as contained in the various demand notices dated 31st January, 2013 made pursuant to section 1(1) and (2) and 21 of Kwara State Land Charge Law 2009 are at variance, inconsistent and in conflict with the intendment and provisions of the Land Use Act, 1978 and thereby null and void.
6. A Declaration that sections 1, 2, 3, 4, 6, 9, 16, 17, 19 and 21 of the Kwara State Land Charge Law, 2009 are ultra vires, unconstitutional, invalid and void having regard to section 4, Items 46, 66 and 68 of the second Schedule, part 1 of the Exclusive Legislative List of the 1999 Constitution on the first part, Item 7 of the second schedule part II of the Concurrent Legislative List of the 1999 Constitution on the second part, sections 5, 15(a) and 16(b) and intendment of the Land Use Act 1978 on the third part and section 1 and part II of the schedule of Taxes and Levies (Approved List for Collection) Act Cap 12, 2004 Laws of the Federation of Nigeria (LFN) on the fourth part.
7. A Declaration that the Kwara State Land Charge Law, 2009 does not have or can not be said to have retrospective effect on activities of the claimant before the commencement of the law.
8. A Declaration that the Kwara State Land Charge Law, 2009 cannot bind and affect the claimant for the period in which she had not yet owned or held or occupied and erected/installed her GSM Mast on the various pieces of land subject matter of the Defendants demand notices dated 31st January, 2013.
9. A Declaration that the demand for land charge by the Defendants on the claimants as per the demand notices dated 31st January, 2013 claiming inter-alia the uniform sum of N1,188,000.00 on each Mast installations are oppressive, exorbitant, ridiculous, unjustifiable and punitive and thereby invalid.
10. An order nullifying the pre-action notice letter dated 7th February, 2013 and all its accompanying demand notices having not emanated from the prescribed authority.
11. An order of perpetual injunction restraining the Defendants whether by themselves, servants, agents and/or privies or whomsoever from implementing and/or giving effect to the Kwara State Land Charge Law, 2009 Laws of Kwara State against the claimant.
The originating summons was filed with a supporting affidavit of 19 paragraphs to which documents marked as exhibits CA1, CA2, CA3, CA4, CA5 and CA6 were attached while the written address by Solomon Olorukooba Esq., Learned Counsel for the claimant was also filed therewith.
The Respondents as defendants filed their Memorandum of Appearance on 22nd March, 2013 and filed their Counter affidavit of 26 paragraphs on 26th March, 2013 with exhibits MOJ 1 and MOJ 2 and the written Address prepared by A. M. Bello Esq., the learned defence Counsel, and in response thereto, the appellant filed a further Affidavit. After hearing the parties through their respective Counsel, the High Court of Kwara State answered the questions in the originating summons against the claimant (except question number 8) and consequently resolved all the eleven reliefs against the claimant.
Being dissatisfied with the decision of the High court of Kwara State (now called the trial Court), the claimant (now appellant) commenced this appeal through two Notices of appeal filed on 3rd September, 2013 and 14th October, 2013, and in prosecution of the appeal, the Appellants’ Brief settled by Akin Akintoye II, of Counsel was filed on 6/12/13. The appellant has relied on the Notice of Appeal filed on 14th October, 2013 with 12 grounds of appeal and has set the following issues down for determination;
i. Whether certain provisions and indeed the whole of the Kwara State Land Charge Law, 2009 are not in contravention of, inconsistent and in conflict with the 1999 Constitution, the Land Use Act and Taxes and Levies (Approved List for Collection) Act and thereby null and void.
ii. Whether having held that the Land Charge Law does not have retrospective effect, it does not behove on the Court to nullify the imposition of tax on the Appellant by the Respondents for the period when the Law has not come into effect.
iii. Whether it was proper for the Lower Court to ignore the impropriety of levying tax on the Appellant by the Respondents for the period and in respect of sites not yet acquired or Masts not yet erected therein.
iv. Whether Exhibit CA6 is valid and properly issued by the appropriate authority as envisaged by the Land Charge Law.
v. Whether the judgment of the Lower Court is not against the weight of evidence.
In the Respondent Brief of Argument filed on 6/2/2014 but deemed properly filed on 17/3/2014, A. M. Bello Esq., the learned Counsel who settled the Brief identified the issues for determination as:
1. Whether the Lower Court rightly held that, the Land Charge Law of Kwara State is not in breach, nor inconsistence with, or in conflict with the 1999 Constitution, the Land Use Act and Taxes and Levies (Approved List for Collection) Act.
2. Whether the Lower Court was right in not given (sic) a relief that was not sought for by the Appellant when it declared null and void the assessment of parcels of land not owned or occupied by the Appellant at the time of such assessment which are contained in the various demand Notice (sic) of 31st January, 2013 to that extent.
3. Whether the judgment of the Lower Court is against the weight of evidence placed before it.
The Appellant’s Reply Brief of Argument settled by learned Counsel Akin Akintoye II was filed on 18/3/14.
At the hearing of the appeal, the parties were represented by their Counsel who adopted their respective Briefs of Argument. Appellants’ Counsel, Akin KINTOYE II urged that the appeal be allowed, while the Respondent’s Counsel, A. M. Bello, Esq., Assistant Chief State Counsel, Kwara State Ministry of Justice urged that the appeal be dismissed.
The issues formulated by the parties are quite similar not withstanding that they have been couched in different ways. I should however state that I will consider and determine this appeal on the basis of the issues formulated by the appellant which in my view are more direct and encompassing.
On issue No. 1 which is quite similar to the respondents’ first issue, the learned Counsel for the appellant had submitted that the provisions of the Kwara State Land Charge Law, 2009 are in contravention of, inconsistent and in conflict with the provisions of the 1999 Constitution, the Land Use Act and Taxes and Levies (Approved List for Collection) Act and thus null and void.
According to learned Counsel, the provisions of the 1999 Constitution with which the Land Charge Law of Kwara State, 2009 is allegedly in conflict or contravention are sections 4 (2); Items 7, 9, (Pt. 2) 46, 66 and 68 (Pt. 1) and of second schedule. Placing reliance on INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 and MARWA v. NYAKO (2012) 6 NWLR (Pt. 1296) 199, it was submitted that in interpreting the Constitution, the Court has developed the attitude of sticking to the words used therein and has maintained the rule that the words of the Constitution must be given their ordinary meaning. It was submitted that the provisions of the Constitution referred to are clear and unambiguous and should be given their ordinary meaning which is that nothing therein allows the respondents to impose any levy, tax, charge, fee and rate on the appellant which only the National Assembly, and not the State House of Assembly can exercise legislative competence over. The Land Charge Law of Kwara State, 1999 which the State House of Assembly made for the purpose of imposing a Land based charge through its section 1 has contravened the provisions of the Constitution, learned Counsel submitted and cited the case of ETI-OSA LOCAL GOVT. v. JEGEDE (2007) 10 NWLR (Pt. 1043) 537.
It was submitted that any legislation that runs contrary to the Constitution is void to the extent of its Consistency, citing ATTORNEY-GENERAL OF ABIA STATE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2002) FWLR 1419 at 1587 (incomplete). ALHAJI BANI BUDO NUHU v. ALHAJI ISOLA ARE OGELE 16 NSCQR 390 at 408. It was contended that the power to impose tax, levy, charge, fee or rates differs from the power to collect them and that the power to collect all these is merely the power to demand for their payment which in turn depends on their imposition by the National Assembly that has such power; the Respondents, can merely make provision for the collection of these tax, rates, fees and charge as it is only the National Assembly that can impose the tax payable by the appellant. It was contended that the Land Charge Law aims at the business and activities of the appellant, contrary to the provisions of items 46, 66 and 68 (Pt. 1) of the second schedule to the 1999 Constitution to the effect that it is only the National Assembly that can legislate on matters within the Exclusive List one of which is the appellant’s business. The provision of the Land Charge Law as specifically contained in section 5 thereof amounts to an incursion into Exclusive Legislative List and therefore ultra vires the State Government, the learned Counsel contended.
As further argued by appellant’s counsel, the Land Charge Law also runs contrary to provisions of the Land use Act especially sections 5(1) (c) and 16 thereof which authorize the State Government to receive ground rent in respect of land within the State and the Land Charge imposed by the Respondents is same as ground rent and the Land Charge Law thereby offends the principle of covering the field.
It was contended that the learned trial judge fell into grave error when he held that the land(s) held by the appellant were covered by Certificate of Occupancy upon which ground rents are payable when no such fact was stated in paragraph 5 of the appellant’s affidavit on which the learned judge relied. It was contended that the respondents’ argument that the Land Charge Law had replaced the ground rent under the Land Use Act is an admission of the intent and purposes of the Land Charge Law. The learned Counsel submitted that the state cannot, and does not have the power to abrogate an Act of the National Assembly i.e. the Land Use Act through its own Land Charge Law, citing A.G. LAGOS STATE v. EKO HOTELS LTD (2008) ALL FWLR (Pt. 398) 235.
On contravention of the provisions of Taxes and Levies (Approved List for Collection) Act, it was contended that the Act has not authorized the respondents to impose taxes, rates, fees or levies but to collect those that the National Assembly has imposed and the Land Charge now demanded by the respondents have not been shown to be covered by the Approved list by the Joint Tax Board as stipulated under the Taxes and Levies (Approved List for Collection) Act. It was argued that the respondents have therefore usurped the powers of the National Assembly by demanding for Charges under the Land Charge Law.
According to the learned Counsel what the respondents are empowered to collect under item 10 part II of the schedule to Taxes and Levies (Approved List of Collection) Act is right of Occupancy fee which is to be collected once and for all at the issuance of the Right of Occupancy, but this is not the same as those contemplated by the Land Charge Law. It was submitted that pursuant to item 59 of the Exclusive Legislative List, it is the duty of the National Assembly to legislate on imposition of Taxes, fees, rates, levies and charge while the respondents have only the duty to collect such taxes, rates, fees, levies or charges that have been so imposed.
On this issue (also argued as issue number 1 by the respondents), the respondents contended that none of the sections or provisions of the law relied upon by the appellant has prevented the Kwara State House of Assembly from enacting the Land Charge Law, 2009 which has by section 1 thereof imposed a land base charge payable on all properties within the State and therefore has nothing to do with posts, telegraphs, telephone, wireless, broadcasting, television transmission and matters incidental thereto which fall within the exclusive legislative competence of the National Assembly under section 4(2) and Items 46, 66 and 68 of the second schedule part 1 of the Exclusive Legislative List of the 1999 Constitution as amended.
It was contended that by the clear provisions of sections 1 (1) and 22 of the Land Charge Law, the law provides for the collection of a yearly fee for occupation and usage of land in Kwara State and has no nexus with the National Assembly nor is it in conflict with, or in breach of section 4(2) and Items 46, 66 and 68 of the Exclusive Legislative List of the 1999 Constitution, or with matters under items 7 and 9 of the Concurrent Legislative List thereof.
It was submitted that where the legislation of a State House of Assembly does not touch on a matter listed in the Exclusive Legislative List, such a legislation will be covered by Section 4 (7) (a) of the 1999 Constitution and therefore competent. On whether the Land Charge Law runs foul of the principle of covering the field, it was submitted that a law of the State House of Assembly can only become null and void when same is inconsistent with that of the National Assembly, citing OGUN STATE INDEPENDENT ELECTORAL COMMISSION v. ACTION CONGRESS (2011) ALL FWLR (Pt. 567) 622.
The Land Charge Law, as argued by the learned Counsel, provides for land base charges in form of rent for the use and occupation of land based properties within Kwara state, and it is not in any way contradictory to the provisions of the Land Use Act on rent payable for Right of Occupancy over land granted by the Governor.
It was submitted that the duty of the appellate Court is to see whether the Lower Court’s decision is correct and not the reasons for such decision; ONIMOLE v. ADEFILA (2008) ALL FWLR (Pt. 438) 324, and where the trial Court’s decision is supported by evidence properly admitted in the case, the appellate court will hardly tamper with such decision. HON. (DR.) YUSUF DALTI BABA AHMED & ANOR v. JUBRIL ADAMU & ANOR (2009) ALL FWLR (Pt. 473) 1257.
It was contended that part II of section of the schedule of Taxes and Levies (Approved List for collection) makes provision for the type of levies and taxes to be collected by the State Government, and by the community reading of item 9 part II of the second schedule to the 1999 Constitution and item 10 part 2 of the schedule of Taxes and Levies Act, it is clearly shown that the imposition of taxes on the use of land within the state is within the legislative competence of a state House of Assembly.
In the Appellant’s Reply Brief, it was contended that from the definition of “property” mentioned in section (1) thereof, the Land charge Law does not refer to land parse but to something placed on a given land which adds value to or enhances the appearance of the land in the form of a building, Masts, machines and equipment, and that has moved the Land Charge Law beyond a Land charge but a charge on improvement and installations on the land which is ultra vires the State House of Assembly.
It was also contended that the employment of the words “improvement” and “structure” in the Land Charge Law has removed any doubt that the focus of that law is the appellant’s telecommunications masts on which only the National Assembly is competent to legislate pursuant to items 46 and 66 of the Exclusive Legislative List of the 1999 Constitution, and therefore ultra vires the Kwara State House of Assembly.
The learned counsel contended that the Land Charge Law has been adopted to replace the ground rent earlier payable on lands within the State which ground rent was provided for in sections 5(1) (c) and 16 of the Land Use Act.
Before going into the resolution of this issue, it is pertinent to set out the 10 questions which the appellant had sought to be determined by the trial Court. They are;
1. Whether the Defendants have the power and legislative competence to impose taxes, charges, fines, levies, fees, interests or penalties or howsoever described, for telecommunications installations, services and operations and matters ancillary or related thereto, pursuant to the Kwara State Land Charge Law, 2009 having regard to the provisions of section 4(2) and items 46, 66 and 68 of the Exclusive Legislative List of the 1999 Constitution.
2. Whether the imposition of and demand for land charges on the claimant G.S.M. Mast installations in Kwara State as contained in the Defendants’ various demand notices dated 31st January, 2013 made pursuant to the Kwara State Land Charge Law, 2009 are not inconsistent with the provision of section 4(2) and Items 46, 66 and 68 of the 1999 Constitution as they relate to the claimant’s telecommunication business and operations and thereby null and void.
3. Whether the claimant by the nature of her business and operations as a telecommunication company is liable to pay land charges on her GSM Mast installations in Kwara state to the Defendants as demanded by the 2nd Defendant in the notices dated 31st January, 2013 having regard to the provisions of section 1 and part II of the schedule of the Taxes and Levies (Approved List for Collection) Act Cap 12 2004 Laws of the Federation of Nigeria (LFN).
4. Whether having granted Regional and Urban Planning permission and collected assessed fees (levies) from the claimant for the installations of her GSM Masts at various locations in Kwara State, the defendants are still entitled and justified to demand for other levies/fees/tax under the guise of land charge as contained in the various demand notices dated 31st January, 2013.
5. Whether the imposition on and demand for Land charge by the Defendants on the claimant with respect to her GSM Mast installations in Kwara State as contained in the various demand notices dated 31st January, 2013 made pursuant to sections 1(1) and (2) and 21 of the Kwara State Land Charge Law, 2009 are in conflict with the intendment and provisions of the Land Use Act 1978 and thereby null and void.
6. Whether sections 1, 2, 3, 4, 6, 9, 16, 17, 19 and 21 of the Kwara State Land Charge Law 2009 are not ultra vires, unconstitutional, invalid and void having regard to section 4, items 46, 66 and 68 of the second schedule, part 1 of the Exclusive Legislative List of the 1999 Constitution on the first part, item 7 of the second schedule part II of the Concurrent Legislative List of the 1999 Constitution on the second part, sections 5, 15(a) and 16(b) and intendment of the Land use Act, 1978 on the third part and section 1 and part II of the schedule of Taxes and Levies (Approved List for collection) Act cap 12, 200 Laws of the Federation of Nigeria (LFN) on the fourth part.
7. Whether the Kwara State Land Charge Law, 2009 has or can be said to have retrospective effect on activities of the claimant before the commencement of the law.
8. Whether the Kwara state Land Charge Law, 2009 can be said to bind and affect the claimant for the period in which she had not yet owned or held or occupied and erected/installed her GSM Mast on the various pieces of land subject matter of the defendants’ demand notices dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter alia the total sum of N84,348,000.00.
8. Whether the demand for Land Charge by the Defendants on claimants as per the demand notices dated 31st January, 2013 claiming inter alia the total sum of N84,348.000.00 are not oppressive, exorbitant and thereby invalid.
10. Whether the 2nd Defendant’s letter to the claimant dated 7th February, 2013 is valid in law having not inter-alia emanated from the prescribed authority.
The depositions of Kehinde Ogunlade in the affidavit in support of the claimant’s (now appellant) originating summons show that the claimant, a limited liability telecommunications company licensed by the Nigerian Communications Commission to carry out the business of telecommunications in Nigeria including Kwara State, has erected Global Mobile Telecommunication Services Masts and base stations in both rural and Urban areas of Kwara State after acquiring legitimate title to the land(s) from vendors and landlords and after applying for and obtaining construction/installation permits from the 1st defendant (now 1st respondent) through its authorized agent upon payment of the requisite fees.
It was further disclosed that in February, 2013 the claimant received Demand notices dated 31st January, 2013 from the 2nd Defendant asking for payment of N1,188,000.00 per site for the period of 2008 to 2012 in respect of some of the claimants’ GSM masts installations in both rural and urban areas of Kwara State and the demand was for payment of bills due to the initial sites of the claimant whereupon a pre-action notice for the claim of N101,310,000.00 from the claimant was received from the 2nd defendant being land charge demand but the claimant objected to the demand on the land charge based on the Land Charge Law of Kwara State, 2009. Another demand letter with a recomputed Demand Notice was received by the claimant from the office of the 2nd defendant.
On the legality of the Land Charge Law of Kwara State which is the contention of the appellant in this issue number 1, the learned trial judge had held on page 122 of the record of appeal that the Land Charge Law is not in breach of section 4(2) and items 46, 66 and 68 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1999, after starting thus;
“It is clear from the provisions of section 1(1) and section 22 of the Land charge Law referred to above which is made for the purpose of levying and collecting taxes on parcel of land and/or improvement on parcel of land situate in Kwara State that it has nothing to do with posts, telegraphs, telephones, wireless broadcasting and television transmission and matter incidental or supplementary thereto which is exclusive to the Federal Legislature”.
The appellant has in the main argued that the Land Charge Law has contradicted provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) especially section 4(2); items 46, 66 and 68 part 1 of the 2nd schedule; item 7 and 9 part 2 of the 2nd schedule thereof as well as the Land Use Act and the Taxes and Levies (Approved List for Collection) Act, all of which I will now examine viz-a-viz the provisions of the Land Charge Law of Kwara State, 2009.
Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter called the Constitution) provides for legislative powers, and in section 4(2) it is provided that;
“(2) The national Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in part 1 of the second schedule to the Constitution”.
The National Assembly is, in addition to the foregoing legislative power which is to the exclusion of the Houses of Assembly of states also empowered by section 4(3) to make law with respect to any matter on the Concurrent Legislative List set out in the first column of part II of the second schedule to the Constitution. The supremacy of the law made by the National Assembly is asserted with the following provision in section 4(5) thereof that;
“(5) If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void”.
On the other hand the House of Assembly of a State is, by virtue of section 4(7) of the Constitution given power to make laws in respect of any matter not included in the Exclusive Legislative List set out in part 1 of the second schedule to the Constitution; any matter on the Concurrent Legislative List set out on column 1 of part II of the second schedule to the Constitution as prescribed in the second column opposite thereto.
Items 46, 66, and 68 set out in part 1 of the second schedule to the Constitution are;
“46 – Posts, telegraphs and telephones
66 – Wireless, broadcasting and television other than broadcasting and television provided by the Government of a State allocation of waive – lengths for wireless, broadcasting and television transmission.
68 – Any matter incidental or supplementary to any matter mentioned elsewhere in this List”.
Part II of the second schedule to the Constitution contains Concurrent Legislative List and Item 7 thereon is about the power of the National Assembly to provide that the collection of tax or duty on capital gains, incomes or profits of persons other than companies and document or transactions by way of stamp duties or administration of the law imposing such shall be carried out by the Government of a State or other authority of a State, while Item 9 provides that;
“9. A House of Assembly may subject to such conditions as it may prescribe, make provisions for the collection of any tax, fee or rate or for the administration of the law providing for such collection”.
Now it is without doubt that by section 1 of the Land Use Act, all land comprised in the territory of each State of the Federation are vested in the Governor of the State who is to hold in trust and administer such land for the common benefit of all Nigerians in accordance with the provisions of the Act, and by the clear provisions of sections 5 and 16 of the Act, the Governor has powers in respect of land in any rural or urban area to grant rights of occupancy, to demand rental for any such land granted and to revise the rental as provided in section 16 thereof.
The whole purport or intendment of the Kwara State Land Charge Law, 2009, a law to provide for the levying and collection of Land Charge and for connected purposes is captured in sections 1 and 2 thereof as follows:-
“1 (1) subject to the provisions of this Law there is imposed a land charge to be called Land Charge, which shall be payable on all property situate in the State.
(2) For the purpose of this Law, the Bureau of Lands shall be the collecting authority and the only body empowered to levy and collect Land Charge in the State.
2. Land Charge shall be payable in respect of any property that is not exempt under section 7 of this Law”.
The word ‘property’ used in section 1(1) is defined in section 22 to include; a parcel of land, an improvement, or a parcel of land and improvement while “Land Charge” is defined as including all property and Land based rates and Charges other than the tenement rates.
I should state here that I find the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and other enactments mentioned above as well as the material provisions of the Taxes and Levies (Approved List for collection list) Act to be clear, simple and unambiguous that, they should be accorded their ordinary and natural meaning without any attempt to add any word thereto. The principle is now well established that in the construction of provisions of the Constitution or any statute, if the words used therein are plain, clear and unambiguous the words must be accorded their ordinary meaning unless where such interpretation will lead to absurdity. See EKULO FARMS LTD v. UNION BANK OF NIGERIA PLC (2006) 4 SC (Pt. 1); FASHAKIN FOODS (NIG.) LTD v. SHOSANYA (2006) 10 NWLR (Pt. 987) 126; ADETAYO v. ADEMOLA (2010) 15 NWLR (Pt. 1215) 169; A.G. BENDEL STATE v. A.G. FEDERATION (1982) 3 NCLR 1; AWOLOWO v. SHAGARI (1979) 6 – 9 SC 73; C.A.C. v. INEC (2007) 12 NWLR (Pt. 1048) 220; N.D.I.C. v. OKEM ENTERPRISES (2004) 10 NWLR (Pt. 880) 107; TEXACO PANAMA INC. v. SHELL SPDCN LTD (2002) 6 NWLR (Pt. 759) 211.
The clear and unambiguous provision of section 4 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is that the House of Assembly of a State has power to legislate for good governance of the State on matters not included in the Exclusive Legislative List, which by section 4(2) is the preserve of the National Assembly. Further, the Land Use Act has, by its section 1 vested all land in the territory of the State in the Governor who holds in trust and administers same for use and common benefit of all Nigerians. The Kwara State Land Charge Law, 2009 is a law that simply provides for the levying and collection of Land Charge or what is referred to as land base charge on property located on land within the state and does not in anyway contain or include taxes on telecommunications, masts or any communication service rendered by the appellant or even any of the taxes provided in the enactments mentioned by the appellant and which I earlier on reviewed in this judgment.
The learned Counsel for the appellant has called for the application of the doctrine of covering the field. The doctrine of covering the field forbids a State House of Assembly from enacting a law in respect of a matter which there is already in existence provisions of the Constitution or an Act of the National Assembly on the same subject matter. On what this doctrine entails the Supreme Court stated in INEC v. MUSA, (2003) LPELR-1515 S.C. that:
“The doctrine of covering the field can arise in two distinct situations.
First where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the constitution has already made provisions covering the subject matter of the Federal Act or the state Law.
Second, where a State House of Assembly by the purported exercise of its legislative powers enacted a law which an Act of the National Assembly has already made provisions covering the subject matter of the State Law, In both situations, the doctrine of covering the field will apply because of the “Federal might” which relevantly are the Constitution and the Act.”
Upon my examination of the enactments, Laws and Constitutional provisions set out on this issue, I am convinced that to share the standpoint of the appellant will entail reading into those provisions words that are not there and thereby stretching them beyond their ordinary or literary meaning.
I therefore hold the view that the Kwara State Land Charge Law is not in conflict or inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or any of the Acts set out by the appellants.
This issue is therefore resolved against the appellant.
On the second issue in the Appellant’s Brief, it was submitted that the Land Charge Law, 2009 became operative in 2009 but the demand notices covered the period of 2008 when the law had not come into effect, whereas the Law itself does not state that its provisions have retrospective or retroactive effect, citing MUHAMMADU BUHARI & ORS v. CHIEF OLUSEGUN OBASANJO & ORS 16 NSCQR 68.
It was contended that all the notices served on the appellant making demand for payment of the land charge from 2008 are void, and all the provisions of the Land charge Law that concern appellant’s land that were not acquired at the time the law was promulgated are also void. The cases of BUHARI v. OBASANJO (supra). In re- OTHLUMNEY (1898) 29.B 547 at 551, and AFOLABI v. GOVERNOR OYO STATE (1985) 2 NWLR (Pt. 9) 734 were cited to submit that the courts have decried laws that contain clauses with retrospective effect. It was submitted that the Land Charge Law and afortiori the Respondents’ demand notices are retrospective in nature and are therefore invalid, citing ATTORNEY-GENERAL OF THE FEDERATION v. ALL NIGERIA PEOPLES PARTY & ORS (2004) 1 EPR 312.
On the third issue the learned Counsel adopted the argument on issues one and two but proceeded to contend that it was improper for the learned trial judge to ignore the impropriety of levying tax on the appellant for the sites not yet acquired when the law was made. It was submitted that tax laws are construed strictly and do not give room for speculations, so what it does not contain cannot be imputed into it.
It was contended that all the provisions of the Land Charge Law relating to the Land of the appellant that were yet to be acquired/possessed as at the time that law was promulgated are void since the Respondents did not inquire into when the appellant took over some of her sites which mostly is 2011 and not 2012 as stated on exhibit CA1.
Arguing these issues under issue number 2 in the Respondents Brief, the learned counsel for the Respondents submitted that the contention of the appellant on the failure of the trial court to nullify the tax imposed for the period the Land charge Law was not in operation is misguided. It was submitted that a court has the duty not to grant a relief not sought by the parties. The cases of VEEPEE INDUSTRIES LTD. v. COCOA COLA INDUSTRIES LTD. (2008) ALL FWLR (Pt. 425) 1667; STANDARD (NIG.) ENGINEERING CO. LTD & ANOR v. NIGERIAN BANK FOR COMMERCE AND INDUSTRY (2006) ALL FWLR (Pt. 316) 225; ADEYE & SONS v. CO-OPERATIVE DEVELOPMENT BANK PLC (2003) FWLR (Pt. 153) 376. Were cited.
It was contended that the trial Court adequately discharged its duty when it answered the question raised by the appellant and declared all the assessment on the appellant’s property before the Land Charge Law came into effect as null and void, but did not nullify them because the appellant did not seek that relief.
The learned counsel contended that the Land charge Law has no provision that is retrospective, but rather makes provision for an appeal to a Tribunal by any person aggrieved by the assessment in a demand notice which the appellant failed to utilize but approached the trial Court on the issue of wrong assessment.
It was submitted that where a law provides a procedure for seeking redress, that procedure must be followed; ALH. ATIKU v. A.G. FEDERATION & ORS (2008) ALL FWLR (Pt. 441) 870; CHIEF F. A. BAMISILE v. FRANCIS OJO OSASUYI & ORS (2008) ALL FWLR (Pt. 423) 1300.
In the Appellant’s Reply Brief, it was contended that the Respondents had misconceived the claim of the appellant which had challenged the retrospective effect of the Land Charge Law and the imposition of tax on the appellant in respect of sites not yet acquired in the years covered by the Land Charge.
It is mutually canvassed by the two learned Counsel, and it is well revealed from the provisions of the Land Charge Law that the law does not contain provision(s) that may give it retrospective or retroactive effect. On this contention, the appellant had, among the questions posed to the trial Court asked;
“7. Whether the Kwara State Land Charge Law 2009 has or can be said to have retrospective effect on activities of the Claimant before the commencement of the law.
8. Whether the Kwara State Land Charge Law 2009 can be said to bind and affect the claimant for the period in which she had not yet owned or held or occupied and erected/installed her GSM mast on the various pieces of land subject matter of the Defendants’ demand notice dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter-alia total sum of N84,348,000.00.”
At pages 131 – 132 of the record of appeal, in the course of his judgment, the learned trial Judge answered these two questions thus;
“QUESTION 7
ANSWER – NO
QUESTION 8
ANSWER – NO.
Any assessment of the Claimant by the 2nd defendant in respect of parcels of land which the Claimant had not owned or occupied at the time of such assessment contained in the various demand notices of 31st January, 2013 and the letter of 7th February, 2013 is to that extent null and void.”
I had earlier set out the reliefs sought by the appellants and it is clear that the appellant did not seek the nullification of any tax imposed by the respondents as now made an issue and the learned trial Judge consequently did not grant any such relief having not been sought by the appellant.
It has become well settled that a court does not possess jurisdiction over any relief not claimed in an action and will therefore not normally grant or even make any valid order in respect of a relief not claimed by a plaintiff. The Court is not a charitable institution that donates to people what they have not sought. See OKEOWO v. MIGLORE 1979 11 SC (REPRINT) 87; AKAPO v. HAKEEM – HABEEB (1992) 7 SCNJ 119; AKINBOBOLA v. PISSON FISCO (1991) 1 NWLR (Pt. 167) 270; EZEONWU v. ONYECHI (1996) 3 NWLR (Pt. 438) 499.
It is noted that the appellant sought two declaratory reliefs with regards to the demand made by the respondents for the period when the appellant had not erected her masts, but the failure to grant or the refusal of those declarations has not been made a subject of this appeal.
I therefore resolve issue numbers 2 and 3 against the appellant.
The appellant has, by issue number four contended that exhibit CA6 is fundamentally defective in that it has not emanated from the appropriate authority. The proper authority, according to learned Counsel is the 2nd Respondent or any person acting on his behalf. The exhibit it was contended was issued by one Abayomi M. A. who was S.A. Operations to an unknown person and not by the 2nd Respondent who is empowered to do so while the exhibit is silent on whether the author was authorized to do so.
It was contended that exhibit CA6 is illegal, null and void. The exhibit in contention here, which is CA6, is copied on page 49 of the record of appeal. It is a letter dated 7/2/2013, addressed to Airtel Nigeria at the Regional Office, Ibadan by Kwara State Government, Bureau of Lands and signed by Abayomi M. A., the S.A. Operations who said “We are directed to inform you as follows.”
The appellant had in her affidavit evidence in support of the originating summons deposed in respect of exhibit CA6 in paragraph 12 thus;
“12. That on 12/2/2013 the claimant received from the office of the 2nd Defendant another demand letter together with a purported recomputed Demand Notice, Copy of the said letter dated and signed by one Abayomi M. A., S.A. Operations, 7/2/2013 is attached and marked as Exhibit CA6.”
The respondents deposed in paragraph 10 of the Counter Affidavit that;
”
10. The Bureau of Lands, Kwara State headed by the 2nd Defendant was appointed vide the land charge law as the collecting Authority who is empowered to levy and collect charges in the state.”
Also in paragraph 18 that;
“18. On 22/2/2013 during the briefing of this case n my office, Abayomi M. A. who is the S. A. Operation in the office of the 2nd Defendant informed me of the following facts which I verily believed.
(b) That like all other Telecommunication Companies operating in the state, and as the enabling law demands, the office of the 2nd Defendant issued and served the Demand notices for payment of land charge on the Claimant.”
By section 1(2) of the Land charge Law 2009, the collecting authority and the only body empowered to levy and collect Land Charge in Kwara State is the Bureau of Lands and from the affidavit evidence before Court, Adewumi M. A. who wrote exhibit CA6 was the S. A. Operations of the Land Bureau, the authority in charge of the levy and collection of land charges and there cannot be any doubt that it was written on the direction of the Bureau of Lands.
This issue is resolved against the appellant.
The fifth issue raised by the appellant which is whether the judgment is against the weight of evidence is the third issue raised by the respondents.
According to the learned counsel for the appellant, the affidavit evidence and exhibits before the trial Court showed that the levies were uniform not withstanding the location of the land and the development or whether it was in the rural or urban area upon which it was contended that the levies were exorbitant, arbitrary and punitive which were not controverted by the respondents. It was contended that the learned trial judge failed to find in favour of the appellant on these assertions and this amounts to a great error as it makes the judgment to be against, or at variance with the evidence before the Court.
The learned Counsel contended that the uniform nature of the demand pursuant to the Land Charge Law is punitive because many of the site of appellant’s Mast are not in the urban area but the respondents did not take this factor into consideration.
On this issue the learned Counsel for the respondents argued that the issue questions the evaluation of evidence by the trial court and how it arrived at its conclusion. It was submitted that where a Court of trial has evaluated evidence and has justifiably appraised the facts before arriving at a conclusion based on the credible evidence before the Court, the appellate Court will not interfere with such findings or substitute its own views of the facts for those of the trial Court, citing the case of TUNDE ISIAQ & ORS v. OKANLAWON SONIYI (2009) ALL FWLR (Pt. 498) 347.
The duty of the appellate Court, the learned Counsel contended, is to carefully scrutinize the record to see whether evidence exists on which the trial Court has acted, and once there is such evidence the appellate Court will not interfere with the findings of the trial Court.
It was the contention of the learned Counsel that the facts that the levies in the demand Notices were exorbitant or punitive, and that the profit and benefit derived from appellant’s facilities were not considered were controverted by the respondents in their counter affidavit, and they were amply considered by the learned trial judge. The findings of the learned trial judge and his decision were based on facts that emanated from the affidavit evidence of the parties.
The Law is that the duty to evaluate evidence and make findings of fact from the evidence is primarily that of the trial Court, and an appellate Court will not readily interfere with such findings or substitute its own views for that of the trial Court unless the appellate Court has been satisfied that the evaluation did not follow the applicable principles or that the findings are themselves perverse. See IRIRI v. ERHURHOBORA (1991) 2 NWLR (Pt. 173) 252; ARE v. IPAYE (1990) 3 SC (Pt. 11) 109; BAMIGBOYE v. UNVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290; EGIRI v. UPERI (1974) 1 NMLR 12; ANYANWU v. MBARA (1992) 6 SCNJ 90; SALAWU v. YUSUF (2007) 5 SC 35; OSOLU v. OSOLU (2003) 6 SC (Pt. 1).Where therefore the trial court has properly evaluated the evidence in the case, it is not the business of the appellate Court to interfere with the findings of fact made by that Court; IDESOH v. ORDIA (1997) 3 NWLR (Pt. 491) 71.
The facts relating to the uniformity of charges on the appellant by the respondents’ demand Notices which is the main crux of this issue is in paragraph 14 of the affidavit in support of the motion thus;
“14. That I also know as a fact that the Land Charges demanded by the Defendants on the claimant are uniform both in the urban and rural areas and thus exorbitant, ridiculous, oppressive and punitive which if complied with can result to a winding up of her business.
The respondents reacted to this deposition in paragraphs 19 and 21 of their counter affidavit that;
“19. The land charge demanded from the claimant are based on relevant calculation under the Land Charge Law of the State and same is neither exorbitant, oppressive, nor punitive in any way.
21. All the 75 identified sites of the claimant are in Urban Area as designated under the Urbanization order of Kwara State Legal Notice No. 8 of 2009”.
The learned trial judge reviewed, appraised and evaluated the above pieces of evidence on pages 118 – 119 of the record of appeal and made findings thereon before arriving at his conclusion.
Having satisfactorily carried out the duty of evaluation of the evidence, I do not find it desirable to embark on the same exercise.
I resolve this issue against the appellant.
From the foregoing resolution of the issues in this appeal, the compelling conclusion is that the appeal is devoid of merit and it is accordingly dismissed.
There is no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of reading, in draft, the judgment of my Lord and brother Isaiah Olufemi Akeju, JCA just rendered. I am in full agreement with the magniloquent reasoning therein and the conclusion that the appeal is beggared of substance. It is thus deserving of an outright dismissal. It is accordingly dismissed.
The judgment of the Lower Court delivered on 23rd July, 2013 is accordingly affirmed.
Appearances
Akin Akinloye IIFor Appellant
AND
A. M. Bello Esq.For Respondent
