CHIEF PATRICK AGBAKOR v. EDO STATE BOARD OF INTERNAL REVENUE
(2019)LCN/12873(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/B/183/2017
RATIO
COURT AND PROCEDURE: WHERE ABUSE OF COURT PROCESSES OCCUR
“In the case of Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd & Ors. (2007) 18 NWLR (Pt. 1066) 319 at 377 – 378; per Ogbuagu, JSC; the Supreme Court cited comprehensive circumstances where abuse of judicial process may occur by stating as follows: There is abuse of process of Court where the process of the Court has not been used bona fide and properly. The circumstances in which abuse of Court process can arise has been said to include the following:-
a. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or same parties even where there exists a right to begin that action.
b. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
c. Where two similar processes are used in respect of the exercise of the same right; for example, a cross-appeal and a respondents notice.
d. Where an application for adjournment is sought by a party on an action to bring an application to Court for leave to raise issues of fact already decided by Courts below.
e. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. The abuse lies in the inconvenience and inequities involved in the aims and purposes of the action. See Jimoh v. Starco (Nig) Ltd. (1998) 7 NWLR (Pt. 558) 523 at 535; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (pt. 16) 264. The law is settled that in all cases, including criminal cases, the Court has inherent power to prevent both abuse of Court process and abuse of power. See Elias Madukaegbu v. The State (2018) 10 NWLR (Pt. 1626) 26.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES:
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF PATRICK AGBAKOR – Appellant(s)
AND
EDO STATE BOARD OF INTERNAL REVENUE – Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The appellant is the defendant in Charge No. B/RC/13C/2016 filed in the High Court of Edo State, holden at Benin in which he is charged with the following offence:
COUNT 1
That you Chief Patrick Agbakor of Chosen Hotel, Ihumudunmu Road, Ekpoma, being a collecting agent for and on behalf of Edo State Government for the collection of taxes on goods consumed and services rendered in the said hotel, did failed to make and remit the consumption tax deduction collected for the period of January to December 2015 to the Edo State Government contrary to Section 8(b) and punishable under Section 14 of the Hotels and Events Centers Occupancy and Restaurants Consumption Law of Edo State 2011.”
Upon being served with the said charge, learned counsel for the appellant filed a notice of preliminary objection urging the Court to dismiss the case in limine on the following grounds:
a) That this Honourable Court lacks the jurisdiction to entertain this charge.
b) The payment/remission of Consumption Tax by Hotels in Edo State is subjudice, and before the Court of Appeal, Benin Division in Appeal No. CA/B/188/2014: Registered Trustees of Association of Hotel proprietors of Edo State v. Attorney General of Edo State and Edo State Board of Internal Revenue.
c) The parties and subject matter in CA/B/188/2014 and Suit No. B/RC/13C/2016 are the same.
d) That this suit/charge constitutes an abuse of Court process.
e) That this suit amounts to derogating the Court of Appeal proceedings.
This preliminary objection was opposed by the respondent, who is the complainant in the trial Court.
After hearing the arguments of learned counsel on the said preliminary objection, the trial Court delivered a reserved ruling on the 7th day of March, 2017 whereby it overruled the objection. This appeal is against the said decision.
The appellants brief was filed on 05/05/2017 and in it a sole issue has been distilled for determination:
Whether having regard to the affidavit evidence and the exhibits before the Court the learned trial judge was right when he held that he had the competence to entertain Charge No. B/RC/13c/2016. (Grounds 1, 2 & 3).
In the respondents brief filed on 02/06/2017, learned counsel for the respondent adopted the issue as formulated by the appellant.
The learned counsel for the appellant stated that the respondent and the Attorney-General of Edo State were parties to Suit No. FHC/B/CS/32/2012 in respect of which Appeal No. CA/B/188/2014 between Registered Trustees of Association of Hotel proprietors of Edo State v. Attorney General of Edo State & Anor., is pending before this Court. He argued that it is an abuse of judicial process for the respondent to commence Suit No. B/RC/13C/2016 during the pendency of Appeal No. CA/B/188/2014. On what amounts to abuse of Court process, learned counsel for the appellant referred to the case of Akinwale v. Akinwale (2010) 31 WRN 127 at 140; Minister of Works v. Thomas Nigeria Limited (2002) 2 NWLR (Pt. 752) 740 at 778 779; Attorney-General of Anambra State v. UBA (2005) 15 NWLR (Pt.947) Abubakar v. Bebeji Oil & Allied Products Ltd. (2007) All FWLR (Pt. 362) 1855 at 1922; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 – 189 and Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142; among others.
Learned counsel stated that the Registered Trustees are representing all Hoteliers including the appellant and that the facts and circumstances of this case show that there is abuse of Court process because:
1. There are at least two subsisting actions: Appeal No. CA/B/188/2014 and Suit No. B/RC/13c/2016.
2. The two suits are between the same parties.
3. The suits are on the same subject matter.
4. The appellant and the respondent herein have since filed their respective briefs of argument at the Court of Appeal, Benin Division on Appeal No. CA/B/188/2014. Copies are attached as Exhibit A and B respectively.
5. The respondent herein thereafter filed this suit No. B/RC/13c/2016 during the pendency of the said appeal pending before the Court of Appeal.
Mr. Okoh, learned counsel for the appellant also contended that the lower Court lacks the powers to enforce a law being challenged in a Court of competent jurisdiction.”
In his submissions, Mr. Odabi, learned counsel for the respondent stated under his background facts, inter alia, as follows:
The appellant being the proprietor of Chosen Hotel and required under Section 8(b) of the Hotel and Event centre Occupancy Restaurant and Consumption Law of Edo State 2011 to pay tax, refused to do so. Against this backdrop, the respondent took out a criminal charge pursuant to Section 8(b) of the said Law against the appellant.
Learned counsel then submitted that: while conceding to the appellants assertion that there is Suit No. FHC/B/CS/32/2012 presently before the Court of Appeal, Benin Division in Appeal No. CA/B/188/2014, Registered Trustees of Association of Hotel Proprietor of Edo State v. Attorney-General of Edo State & Anor., it is our submission that the respondent is yet to receive any order, wither restraining or staying the enforcement of any of the provisions of Hotel and Event Centre Occupancy and Restaurant Consumption Law of Edo State 2011. The said law has remained extant, valid and enforceable.
On whether the charge in the trial Court constitutes an abuse of Court, learned counsel argued that it does not by stating as follows:
On the charge being an abuse of Court process, we submit most humbly my lords that for an action to amounts to an abuse of Court process, the party must have instituted multiple actions on the same subject matter against the same opponent on the same issue. It is the law that where two processes are pending between the same parties in respect of the same subject matter and are actions of processes in which the reliefs are in respect of or arise out of the same transaction or series of transactions, the suit or process filed later in time would constitute an abuse of process. See Adeniyi vs. F.R.N. (2012) 1 NWLR Pg. 2284; Nyah v. Noah (2007) 4 NWLR (Pt. 1024) 320; Ali v. Albishir (2008) 3 NWLR (Pt. 1073) 94. In the instance case my lords; the action filed by the respondent at the trial Court is the only action against the appellant. It is criminal action which has no bearing with the civil appeal pending before this Court. The pending appeal is a civil suit between the Registered Trustees of Association of Hotel Proprietor of Edo State v. Attorney-General of Edo State & Anor.
The appellant misconstrued the present charge with the civil suit in the Court of Appeal. We submit that from the facts and circumstances of this case, it is very clear that:
1. The action at the trial Court is a criminal matter with Charge No. B/RC/13C/2016 while the one in Court of Appeal is a civil matter CA/B/188/2014.
2. The parties are not the same. The charge at the trial Court is between EDO STATE BOARD OF INTERNAL REVENUE V. CHIEF PATRICK AGBAKOR while the Appeal suit is between REGISTERED TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE V. ATTORNEY GENERAL OF EDO STATE AND EDO STATE BOARD OF INTERNAL REVENUE.
3. The subject matter giving rise to this charge is not the same.
(Emphasis supplied by me)
I have read the record of appeal and briefs of the parties. The facts of the case can be summarized to be as follows:
(i) The appellant is a member of Association of Hotel Proprietors of Edo State, which association is duly incorporated.
(ii) In 2011, the Hotels and Events Centres Occupancy and Restaurants Consumption Law of Edo State was made.
(iii) In 2012, the Registered Trustees of Association of Hotel Proprietors of Edo State instituted an action in the Federal High Court, Benin Judicial Division, holden at Benin City in they are challenging the validity of the Hotels and Events Centres Occupancy and Restaurants Consumption Law of Edo State, 2011. The said action is Suit No. FHC/B/CS/32/2012 and it is still pending in the Federal High Court.
(iv) In 2016, while an interlocutory appeal in Suit No. FHC/B/CS/32/2012 was pending in Appeal No. CA/B/188/2014 in the Court of Appeal, Benin Judicial Division; the respondent filed Charge No. B/RC/13C/2016 in the lower Court.
(v) The appellants preliminary objection to Charge No. B/RC/13C/2016, on the grounds reproduced earlier in this judgment, was overruled.
The live issue to be determined in this appeal is: whether, having regard to the facts and circumstances of the case, Charge No. B/RC/13C/2016 is an abuse of judicial process.
Abuse of judicial process has been described as an imprecise concept per Mahmud Muhammad, JSC (as he then was) in Miss Ifeyinwa Ogoejeofo v. Daniel Ogoejeofo (2006) 3 NWLR (Pt. 966) 208 at 220.
There are various circumstances and instances when an abuse of judicial process may manifest or occur. For example:
1. the multiplicity of actions on the same matter between the same parties, even where there exists a right to bring the action, is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se per Muhmud Muhammad, JSC (as he then was) in Miss Ifeyinwa Ogoejeofo v. Daniel Ogoejeofo (supra) and per Karibi-Whyte, JSC in Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 189.
2. Where the processes of Court had not been issued bona fide and properly per Ngwuta, JSC in Hon. Justice Sotonye Denton-West v. Hon. Nimi Walson-Jack & Ors. (2013) 15 NWLR (Pt. 1377) 205 at 222. See also Central Bank of Nigeria v. Saidu H. Ahmed & Ors. (2001) 11 NWLR (Pt.724) 369.
3.when a party improperly uses judicial process to the irritation and annoyance of his opponent or in order to overreach such opponent. per Musa Dattijo Muhammad, JCA (as he then was, now JSC) in Jonpal Ltd. v. Afribank (Nig.) Ltd. (2003) 8 NWLR (Pt. 822)290 at 304.
In the case of Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd & Ors. (2007) 18 NWLR (Pt. 1066) 319 at 377 – 378; per Ogbuagu, JSC; the Supreme Court cited comprehensive circumstances where abuse of judicial process may occur by stating as follows:
There is abuse of process of Court where the process of the Court has not been used bona fide and properly. The circumstances in which abuse of Court process can arise has been said to include the following:-
a. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or same parties even where there exists a right to begin that action.
b. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
c. Where two similar processes are used in respect of the exercise of the same right; for example, a cross-appeal and a respondents notice.
d. Where an application for adjournment is sought by a party on an action to bring an application to Court for leave to raise issues of fact already decided by Courts below.
e. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. The abuse lies in the inconvenience and inequities involved in the aims and purposes of the action. See Jimoh v. Starco (Nig) Ltd. (1998) 7 NWLR (Pt. 558) 523 at 535; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (pt. 16) 264.
The law is settled that in all cases, including criminal cases, the Court has inherent power to prevent both abuse of Court process and abuse of power. See Elias Madukaegbu v. The State (2018) 10 NWLR (Pt. 1626) 26.
In paragraph 7 of its further counter affidavit, the respondent deposed as follows:
7. That the defendant/applicant is not a party to the appeal pending at the Court of Appeal, Benin Division with Suit No. CA/B/118/2014; Registered Trustees of Association of Hotel Proprietor v. Edo State Board of Internal Revenue.
Appeal No. CA/B/188/2014 was determined by this Court on Friday, the 7th day of December, 2018. In the said appeal, the parties were as follows:
REGISTERED TRUSTEES OF ASSOCIATION
OF HOTEL PROPRIETORS OF EDO STATE APPELLANT
AND
1. ATTORNEY GENERAL OF EDO STATE
2. FEDERAL INLAND REVENUE SERVICE
3. EDO STATE BOARD OF INTERNAL REVENUE
RESPONDENTS
It is clear from the parties reproduced above that the respondent Edo State Board of Internal Revenue was the 3rd respondent and, therefore a party to Appeal No. CA/B/188/2014.
The appellant deposed in paragraph 4(a) of the 1st further affidavit in support of his preliminary objection as follows:
(a) That the applicant herein is a financial member of the Registered Trustees of Association of Hotel Proprietors and the appellant in Suit No. CA/B/188/2014.
The deposition was not disproved by the respondent. Therefore, the appellant is one of the persons represented by the Registered Trustees of Association of Hotel Proprietors of Edo State in both Suit No. FHC/B/CS/32/2012 and Appeal No. CA/B/188/2014 to which cases the respondent is also a party.
In Appeal No. CA/B/188/2014, determined on 07/12/2018, this Court held and stated inter alia, as follows:
Upon a calm and proper assessment and examination of the appellants originating summons, the Federal High Court is therein principally called upon to determine the right body or person, between the 2nd respondent Federal Inland Revenue Service and the 3rd respondent Edo State Board of Internal Revenue, to whom the appellant is to remit money collected as sales tax from consumers in view of the competing provisions of the Value Added Tax Decree (Act) and the Hotels and Events Centres Occupancy and Restaurants Consumption Law of Edo State, 2011. According to the depositions in paragraphs 8(f) and 14 of the affidavit in support of the originating summons, money collected as sales tax by the appellant has all along been paid to the 2nd respondent but the 1st and 3rd respondents are now compelling them to pay the money to the 3rd respondent.
The main issue in Suit No. FHC/B/CS/32/2012 now pending in the Federal High Court is whether or not consumption tax collected by Hotel Proprietors of Edo State should be remitted to the respondent Edo State Board of Internal Revenue. This is also fulcrum of Charge No. B/BR/13C/2016 filed while Suit No. FHC/B/CS/32/2012 is still pending.
As stated earlier, both the appellant and the respondent are parties to Suit No. FHC/B/CS/32/2012 and Charge No. B/BR/13C/2016. The live issues in both cases are interwoven and interrelated, to the extent that it is quite safe to conclude that they are the same. The trial Court, therefore, erred by holding at pages 55 to 56 of the record of appeal as follows:
In the whole circumstances of the case, therefore, the materials relied upon by the applicant do not show that the parties in, and the subject matter of, CA/B/188/14 and charge No. B/RC/13C/16, are the same. The pendency of Appeal No. CA/B/188/14 wherein the parties and subject matter are different from those in charge No. B/RC/13c/16 cannot therefore operate to deprive this Court of the jurisdiction conferred on it by the Hotels and Events Centers Occupancy and Restaurants Consumption Law of Edo State 2009 to entertain charge N. B/RC/13c/16. Having regard to the totality of the circumstances and facts of this case, the initiation of Charge No. B/BR/13C/2016 by the respondent against the appellant is not only to overreach the appellant in the pursuit of the collective claim in Suit No. FHC/B/CS/32/2012 but also a clear abuse of judicial process and power by the respondent. The result is that Charge No. B/BR/13C/2016 is a clear abuse of judicial process.
For all the reasons given above, I resolve the lone issue in this appeal in favour of the appellant and against the respondent. The appeal, therefore, succeeds and it is hereby allowed.
The decision of the trial Court delivered on the 7th day of March, 2017 overruling the appellants preliminary objection is hereby set aside. In place of the said decision, the preliminary objection filed by the appellant on the 24th day of June, 2016 is hereby upheld.
Consequently, Charge No. B/BR/13C/2016 is hereby struck out for being an abuse of judicial process.
There is no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of a prior reading of the lead judgment just delivered by my learned brother, M.A.A. ADUMEIN JCA.
The issue in contention has been exhaustively addressed and I agree with the reasoning and conclusion contained therein.
I also hold that the appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I have read the draft of the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I am in full agreement with the sound reasoning and conclusion therein.
I agree that Charge No. B/RC/13C/2016 is an abuse of Court process and deserves to be struck out.
I abide by the order as to cost in the lead judgment
Appearances:
Ehinon Okoh, Esq. For Appellant(s)
O.K. Odabi, Esq. (Assistant Director, Edo State Ministry of Justice) with him, O. Esekhaigbe, Esq. (Legal Officer, Edo State Ministry of Justice) and K.O. Aliemeka, Esq. (Legal Officer, Edo State Ministry of Justice) For Respondent(s)
