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ACCESS BANK PLC v. KWARA STATE INTERNAL REVENUE SERVICE (2019)

ACCESS BANK PLC v. KWARA STATE INTERNAL REVENUE SERVICE

(2019)LCN/13574(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2019

CA/IL/3/2019

JUSTICES:

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

ACCESS BANK PLC – Appellant(s)

AND

KWARA STATE INTERNAL REVENUE SERVICE – Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Undoubtedly, the issue of jurisdiction is most fundamental. Indeed, the jurisdiction of any Court or Tribunal is circumscribed by the Constitution of the Federal Republic of Nigeria, 1999, as amended and the law creating such Court. SeeAG LAGOS STATE VS. AG FEDERATION (2014) 4 SC (Pt. 11) 1 @ 27. In the instant case, the jurisdiction of the Court below as a Federal High Court is circumscribed by the provision of Section 251 (1) of the 1999 Constitution (Supra) which provides:
Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(b) Connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation.
See also the Federal High Court Act CAP. F 12, Laws of the Federation of Nigeria, 2004, most especially Section 7 (1) (b) thereof.

With a view to determining whether or not a Court has jurisdiction to entertain a matter before it, it behooves the Court to accord a critical albeit dispassionate consideration upon the nature of the case vis a vis the originating process of the plaintiff. See JOV. VS. IYORTYOM (2014) 5, 6 SC (Pt. 111) 82 @ 137. PER SAULAWA, J.C.A.

THE CARDINAL DOCTRINE OF STATUTORY INTERPRETATION

It is a cardinal doctrine of statutory interpretation that:
Where an interpretation of a statute will result in defeating the object of the statute, the Court will not lend its weight to such interpretation. The language of the statute must not stretch to defeat the aim of the statute.
See ANSALDO (NIGERIA) LIMITED VS. NPFMB (1991) 3 SC 29 @ 38; See also IDEHEN VS. IDEHEN (1991) 7 SC (Pt. 111) 104 @ 151; A.G. ONDO STATE VS. A.G. EKITI STATE (2001) 9, 10 SC 116 @ 152, 153. PER SAULAWA, J.C.A.

THE CARDINAL DOCTRINE OF INTERPRETATION

Indeed, it is a well settled doctrine of interpretation that where there are provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The justification of this doctrine is not far-fetched. As aptly postulated by the Apex Court:
The reason behind the ruling is that the legislature in making the special provisions in considering the particular case and expressing its will in regard to that case, hence, the special provisions form an exception importing the negative, in other words, the special case provided for in it is excepted and taken out of the general provision and its ambit. The general provisions are enacted in the same piece of legislation. Dryden V. The Overge as of putness of Putney.
See also BAMIGBOYE VS. ADMINISTRATOR GENERAL (1954) 14 WACA 616 per Bairamian, J.; @ 619; quoted with approval by the Supreme Court in A.G. LAGOS STATE VS. A.G. FEDERATION (2014) ALL FWLR (Pt. 740) 1296 SC @ 1334, 1335 paragraphs G – G.
What is more, the trite doctrine of Expressio Unius Est Esclusio Atterious i.e. the Express mention of one thing in a statutory provision, automatically excludes any other which otherwise would have been applied by implication, is very much applicable to the instant case. See
A.G. LAGOS STATE VS. A.G. FEDERATION (supra) @ 1348, 1349 paragraphs H – G. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the ruling of the Federal High Court, Ilorin Judicial Division, delivered on November 2, 2018 in suit No. FHC/IL/18/2018. By the ruling in question, the Court below struck out the Appellants action for lack of jurisdiction.

BACKGROUND FACTS
On April 5, 2018, the Appellant commenced the said action vide a writ of summons in the Court below thereby seeking declaratory and injunctive reliefs against Respondent. By the statement of claim thereof, filed along with the writ of summons, the Appellant sought against the Respondent the following reliefs:
i. A Declaration that the premise upon which the Defendant seeks or purports to subject the plaintiff to a fresh Tax Assessment, Tax Investigation or Tax Audit and the alleged resultant N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) as alleged PAYE Tax Under Remittance for 1999 to 2016 is premeditated, inordinate, baseless, inappropriate, vindictive, erratic, unjustifiable and alien

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to the rules and principles of taxation and the law.
ii. A Declaration that the Defendants demand for the sum of N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) as the alleged outstanding PAYE Tax under Remittance payable by the plaintiff to the Defendant in respect of 1999 to 2016 Tax years is arbitrary, oppressive, punitive, vindictive, ultra vires, illegal, unconstitutional and a gross abuse of power by the Defendant.
iii. An Order of the Court rescinding or setting aside the Defendants demand for the sum of N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) as the alleged outstanding PAYE Tax Under Remittance allegedly payable by the Plaintiff to the Defendant in respect of 1999 to 2016 Tax Years as contained in the Defendants letter of 23rd March, 2018 for being erratic, oppressive, arbitrary, prohibitive, baseless and contrary to law.
iv. An Order of perpetual injunction restraining the Defendant through its agents, servants,

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officers or other persons howsoever called acting for the Defendant from taking any measure or deploying any means for enforcing the payment of the alleged N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) as the alleged outstanding PAYE Tax Under Remittance payable by the Plaintiff to the Defendant in respect of 1999 to 2016 Tax Years.
v. Cost of this action.

On June 4, 2018, the Respondent entered a memorandum of conditional appearance and equally filed a notice of preliminary objection, thereby seeking the following relief:
I. AN ORDER dismissing and/or striking out the plaintiffs suit against the Defendants/Applicants for being incompetent and the Court lacks jurisdiction [to] entertain same.

On the said June 4, 2018, the Respondent equally filed a 26 paragraphed amended statement, thereby urging upon the Court below to dismiss the action in its entirety as same is lacking in merits, frivolous, vexatious, gold digging, an afterthought and abuse of the process of the Court.

With pleadings having been filed and duly exchanged, by the

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respective learned counsel, the action was set down for the hearing of the Respondents preliminary objection on June 19, 2018. On the said date, the Defendants learned counsel, O. O. David Esq., adopted the written address thereof and urged upon the Court below to discountenance with the Plaintiffs submission and strikeout the suit.

Contrariwise, the Plaintiffs learned counsel equally adopted the written address thereof and urged the Court to discountenance with the preliminary objection, and accordingly dismiss same.

Whereupon, the Court blow proceeded to deliver the vexed ruling on the November 2, 2018 to the conclusive effect:
It is clear that this Court lacks the requisite jurisdiction to entertain this suit it is trite that no Court of law has the power to expand its jurisdiction it can only expound it. See Egbue vs. Araka (2003) 9 MJSC 12 at 35.
There is nothing in this present suit which presents an opportunity to this Court to expound on its well circumscribed jurisdiction rather it is an invitation to expound it which invitation I must resist and reject.
In the circumstance, I find that this suit has

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not been lodged at the appropriate Court and this Court is thus without the requisite jurisdiction to entertain it let alone determine same. In the circumstance, this suit in (sic) accordingly struck-out for lack of jurisdiction. I have no order as to costs.”
(Hon. Justice I. AFOLABI)
JUDGE
2/11/2018

The Appellant, not unexpectedly, was dissatisfied with the said ruling, thus a Notice of Appeal was filed on November 6, 2018 by the counsel thereof, Abdulwahab Bamidele Esq.

By the extant Amended Notice of Appeal, filed on March 10, 2019, the Appellant has urged upon the Court to allow the appeal, set aside the vexed decision of the Court below delivered on the said November 2, 2018, and accordingly remit the Suit (No. FHC/18/2018) to the Court below to be heard on the merits.

With the appeal having been entered on 09/6/2019, the parties proceeded in earnest to file the respective briefs of argument thereof. Most particularly, the Appellants brief settled by Abdulwahab Bamidele Esq., on 18/03/2019, spans a total of 19 pages. At page 3 of the said brief, three Issues have been canvassed:
i. Whether given the

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peculiar facts of the case of the Appellant as constituted before the lower Court, the case of the Appellant does not form within the jurisdiction of the lower Court (i.e. Federal High Court). This issue is distilled from grounds 1, 2, 4, 6, and 7 of the grounds of appeal in the Appellants Amended Notice of Appeal.
ii. Whether the lower Court has not improperly and or wrongly apprehended the Appellants case when it declined jurisdiction to entertain same while relying on previous decision of appellate Courts whose facts are dissimilar with the facts of the instant case. This issue is distilled from ground 5 and 8 of the grounds of appeal in the Appellants Amended Notice of Appeal.
iii. Whether the lower Court was right to strike out Appellants case for lack of jurisdiction without regard to the extant provisions of the Federal High Court Act. This issue is distilled from ground 3 of the grounds of appeal in the Appellants Amended Notice of appeal.

The Issue No. 1 is argued at pages 3, 10 of the brief, to the effect that by the peculiar facts of the appeal as constituted, the case falls within the

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jurisdiction of the Court below. The case of A.G. LAGOS STATE VS. A.G. FEDERATION (2014) 4 SC (Pt. 11) 1 @ 27 was cited and relied upon, to the effect that the jurisdiction of every Court is regulated by the relevant statute creating such Court.

Regarding the Court below, the jurisdiction vested thereupon is as contained in Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 7(1) (b) of the Federal High Court Act CAP. F12, Laws of the Federation of Nigeria, 2004.
Contrary to the findings of the Court below at page 82 of the record of appeal, the Appellants learned counsel contended that a proper and purposive interpretation (construction) of the provisions of Section 251 of the 1999 Constitution (supra) and Section 7(1) (b) of the Federal High Court (supra), undoubtedly situate the case of the Appellant within the purview of the statutory provisions in question. See JEV. VS. IYORTYOM (2014) 5 ,6 SC (Pt. 111) 82 @ 137.

Copiously, referring to paragraphs 6, 7, 8, 9, 10, 12 – 22 (i) (ii) (iii) and (iv) of the Statement of Claim, it is submitted that the Appellants case was premised on

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a complaint against fresh tax assessment by the Respondent after having settled its tax obligations to the Respondent.

It was contended, that the Appellants case is simply a complaint against fresh tax assessment being imposed on the Appellant by the Respondent after it had fully settled its tax obligation. Allegedly, it was neither in issue nor in dispute, that the Appellant is not a company within the meaning of the companies and Allied Matters Act. And that the Court below grossly misapprehended the provision of Section 251 (1) (b) of the 1999 Constitution as Amended which is primarily concerned with taxation of companies, without differentiation or classification of the kind of tax a company is required to pay. See IDEHEN VS. IDEHEN (1991) 7 SC (Pt. 111) 104 @ 151.

Copiously alluding to the finding of the Court below at page 81 of the record, it is argued that the interpretation given to Section 251 (1) (b) of the 1999 Constitution defeats the intention of the law makers that put the causes and matters connected with or pertaining to taxation of companies within the scope of jurisdiction of the Federal High

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Court without specification of any specie of tax. See ANSALDO (NIG) LTD VS. NPF MANAGEMENT BOARD (1991) 3 SC 29 @ 38; AG ONDO STATE VS. AG EKITI STATE (2001) 9, 10 SC 116 @ 152, 153; BALONWU VS. GOVERNOR OF ANAMBRA STATE (2009) 12 SC (Pt. 1) 31 @ 66, 67; et al.

Further contended, that in so far as Section 251(1) (b) of the 1999 Constitution does not make any classification or differentiation to which authority or person to whom taxation of companies is to be paid, the only liberal interpretation to be given to taxation of companies is that any cause or matter that relates to taxation in which a company is involved can be dealt with or entertained by the Federal High Court under the maxim Benignior sentential in verbis generalibus seu dubiis est preferenda, meaning the more favourable construction is to be placed on general or doubtful words. According to the Appellants learned counsel, in the same vein, the maxim expressio unius est exclusio alterius is also apposite in the instant case.

It is posited, that the Appellants case has peculiar facts. That its undoubtedly clear that the

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Appellants case was not premised on taxation of PAYE specie but rather based on imposition of fresh tax obligation after settlement of tax due. Vehemently submitting, that its on this score that the Appellants case ought to be construed vis-a-vis the provision of Section 251 (1) (b) of the 1999 Constitution, because it is the nature of the claim of a party that determines the jurisdiction of the Court. See AG LAGOS VS. AG FEDERATION (2014) 5 SC (Pt. 11) 1 @ 27; BRONIK MOTORS LTD VS. WEMA BANK (1983) 6 SC (Reprint) 94; et al.

Finally postulating on the issue, that by taking the Appellants case outside of the provision of Section 251 (1) (b) of the 1999 Constitution (supra), the Court below has failed in its duty to properly interpret the provisions in question, and this has occasioned substantial miscarriage of justice to the Appellant. See AGRO ALLIED DEVELOPMENT ENT. LTD VS. MV NORTHERN REEFER (2009) 5, 6 SC (Pt. 1) 110 @ 121.

Thus, the Court is urged to resolve the Issue No. 1 in favour of the Appellant, and hold that given the facts of the Appellants case as constituted, the case squarely falls

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within the jurisdiction of the Court below.

The Issue No. 2 is argued at pages 10, 15 of the brief, to the effect that the Court below wrongly apprehended the Appellants case when it declined jurisdiction to entertain same while relying on previous decisions of Appellate Courts whose facts are dissimilar with the facts of the Appellants case. It was submitted, that the cases of WILBROS (NIGERIA) LIMITED VS. A.G. AKWA IBOM STATE (2008) 5 NWLR (Pt. 1081) 484; SHITTU VS. NACB LIMITED (2001) 10 NWLR (Pt. 721) 298, et al were wrongly applied to the instant case by the Court below, as the facts of those cases are dissimilar with the instant case. See DONGTOE V. CSC PLATEAU STATE (2001) 4 SC (Pt. 11) 43 @ 60; TANKO VS. THE STATE (2009) 1, 2 SC (Pt. 1) 198 @ 238; et al.

It is contented, that what makes the instant case remarkably different from WILBROS (NIGERIA) LIMITED VS. A.G. AKWA IBOM STATE (Supra) and SHITTU VS. NACB LIMITED (Supra) is simply that the Appellant claims being subjected to fresh tax assessment after fully settling her tax obligations to the Respondent. On this note, paragraphs 15, 18(vii), 18(viii), 18(ix), 19,

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20 and 21 of the Statement of Claim have been copiously alluded, to show that the Appellants claim/case falls within the provision of Section 251(1) (b) of the 1999 Constitution. Thus, reliance of the Court below on WILBROS (NIGERIA) LIMITED VS. A.G. AKWA IBOM STATE (Supra) et al, without regard to the peculiarity of their facts with the facts of the case on appeal misguided the Court below into declining jurisdiction to entertain same, thus occasioning substantial miscarriage of justice to the Appellant. See INTER DRILL NIGERIA LIMITED VS. UBA PLC (2017) 2, 3 SC (Pt. 11) 120 @ 135.

The Court is urged to resolve the Issue No. 2 in favour of the Appellant, and hold that the Court below improperly apprehended the Appellants case, when it declined jurisdiction to entertain same while relying on previous decisions of the Appellate Courts, whose facts are dissimilar with those of the instant case.

The Issue No. 3 is canvassed at pages 15, 18 of the brief, to the effect that the Court below was in grave error to strike out the Appellants case for lack of jurisdiction without regard to the extant provision of the Federal

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High Court Act, CAP. F12 LFN 2004. See Sections 22(2) of the Federal High Court Act (supra); Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009.

Further submitted, that its clear from the provision of Section 22 (2) of the Federal High Court (supra), the Court below lacks the power to peremptorily strike out a cause or matter when it came to the conclusion that the cause or matter ought to have been brought before a High Court of a State or Federal Capital Territory, Abuja. Copiously alluding to page 82 of the record, the learned counsel contended that the Court below was wrong in striking out the suit rather than transferring same to the appropriate Court due to lack of jurisdiction. See MIKE OMLIENKE OBOMHENSE VS. RICHARD ERAHON (1993) SCNJ 497; IMAH VS. OKOGBE (1993) 12 SCNJ 57; FAWEHINMI VS. I.G.P (2000) FWLRC (Pt. 12) 2015.

It is contended, that the provision of Section 22 (2) of the Federal High Court Act (Supra) is mandatory, as the word shall there in conveys an obligation, as against mere permissiveness. See BAMAIYI VS. A.G. FEDERATION (2001) 7 SC (Pt.11) 62; ALADEJOBI VS. NBA (2013) 6, 7 SC

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(Pt. 11) 161 @ 177.
The Court is urged to so hold and resolve issue No.3 in favour of the Appellant.

Conclusively, the Court is urged to allow the appeal and set aside the vexed ruling of the Court below.

Contrariwise, the Respondents brief, settled by M. A. Suleiman Esq. spans a total of 20 pages. At pages 3, 4 of the said brief, two issues have been couched.
3.1. WHETHER having regards to the subject matter and parties in the suit filed by the appellant at the lower Court, the lower Court was not right to decline jurisdiction to entertain the claims of the appellant in view of the clear and unambiguous provisions of Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This issue is distilled from Ground 1, 2, 4, 5, 6, 7 and 8 of the Notice of Appeal.
3.2. WHETHER the lower Court was wrong to have struck out the appellants suit having found that it has no jurisdiction to entertain same. This issue is distilled from Ground 3 of the Notice of Appeal.

The issue No.1 is extensively canvassed at pages 4, 16 of the brief. In the main, it is submitted that based on the

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pronouncements of the Supreme Court and the Court of Appeal in A.G. ANAMBRA STATE VS. REGISTERED TRUSTEES OF THE CATTLE DEALERS ASSOCIATION, LAGOS STATE (2017) ALL FWLR (Pt. 876) 1 G – B AND PDP VS. SYLVA (2012) ALL FWLR (Pt. 637) SC 606 Paragraphs A – C, none of the parties to the instant suit is [either] Federal Government or its agency. Therefore, the Court below was right to have declined jurisdiction. The Court is urged to so hold.

Further submitted, that to determine whether a Court has jurisdiction or not, it is the pleading (Statement of Claim) of the plaintiff that must carefully be examined in order to determine whether the subject matter is within the jurisdiction of the Court. See A.G. ANAMBRA STATE VS. REGISTERED TRUSTEES OF THE CATTLE DEALERS ASSOCIATION, LAGOS STATE (Supra) @ 15 – 16 Paragraphs F – A.

It is contended that in the instant case, the Court below took pains to reproduce verbatim the endorsed plaintiffs claim before coming to the finding at pages 808 paragraphs 5, 81 of the record:  it is crystal clear that the issue or the arm of tax which is in contention between the parties is

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the remittance of the PAYE Tax. This fact is wholly buttressed by the various paragraphs in the statement of claim particularly paragraphs 18, 19 and 22 thereof.

Thus contended, that by the subject matter of the case, which boarders on PAYE Tax under remittance to the Defendant, agent of Kwara State Government, is clearly not written within the precint of Section 251 (1) (b) of the 1999 Constitution for which the Court below can assume jurisdiction to adjudicate upon. See IKENNE L.G. VS. WA PORTLAND CEMENT PLC (2012) ALL FWLR (Pt. 642) 1747 @ 1767, 1768.

Further contended, that the Court below is a special Court with exclusive jurisdiction limited to those specified items under Section 251 of the 1999 Constitution (Supra), or as may be conferred upon it by an Act of the National Assembly. See ROE LTD VS. UNN (2018) ALL FWLR (Pt. 938) 1924 @ 1943, 1944 Paragraphs G – A.

It is posited, that by the provision of section 315 (1) (a) of the 1999 Constitution (supra), the Taxes and Levies Approved List for Collection Act is preserved as an Act of the National Assembly, thus deemed to be made pursuant to the 1999 Constitution

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as amended. Therefore, the reference to the 1979 Constitution means reference to the 1999 Constitution.

That from the provisions of Part 11 of the Taxes and Levies Approved List for Collection Act (supra), it is crystal clear that the subject matter of the instant case pertaining to PAYE Tax payable to Kwara State Government and not taxation payable to the Federal Government.

The Court is urged to so hold, that the Court below was right to decline jurisdiction to entertain the matter on ground of lack of jurisdiction.

Replying to the Appellants Issue No. 2, the Respondents learned counsel submitted in the main, that based on the interpretation of the provision of Section 251(1) of the 1999 Constitution by the Supreme Court, in A.G. LAGOS STATE VS. A.G. FEDERATION (2014) ALL FWLR (Pt. 740) 1296 @ 1334, 1335 paragraphs G – G; 1348, 1349 paragraphs H – C, any other items exempted from the Specific List (under Section 251(1) of the 1999 Constitution), is excluded. Thus, PAYE Tax not having been specifically mentioned in Section 251(1) (supra) does not fall within the jurisdiction of the Federal High Court. The

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Court is urged to so hold.

The Issue No. 2 (coined from Ground 3 of the Notice of Appeal) is argued at pages 16, 19 of the Respondents brief. Pages 16, 17 of paragraphs 5.1, 5.4 of the said brief relates to a preliminary objection. It is submitted that both the Ground 3 of the amended Notice of Appeal and the issue formulated thereupon are not competent. The said Ground 3 of the amended Notice of Appeal is allegedly not competent in that it does not arise from the decision of the Court below and no leave of this Court was sought to raise it as a fresh issue. See COMPAIGNE GENERALE DE GEOPHYSIQUE (NIGERIA LIMITED) C. GG. NIGERIA LIMITED VS. MOSES AMINU (2015) ALL FWLR (Pt. 792) 1764 @ 1776 B – E.

The Court is urged to so hold and strike out the said Ground 3 and the issue formulated thereon.

Alternatively, it is submitted that Section 22(2) of the Federal High Court (Act) CAP. F12 LFN, 2004 is not applicable to the circumstance in the instant case. According to the learned counsel, by virtue of Section 318(1) of the 1999 Constitution (supra), the vexed ruling of the Court below dated 02/11/2018, is a decision in

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accordance with the provision of the Constitution. That once the Court below reached a decision declining jurisdiction, having taken the argument for and against whether it has jurisdiction, the Court was perfectly in order to have struck out the Appellants suit for lack of jurisdiction by way of consequential order. The order striking out the suit for lack of jurisdiction was a decision within the context of Section 318(1) 1999 Constitution. Thus, the proper order to make is to strike out the case. See AJAYI VS. ADEBIYI (2012) 11 NWLR (Pt. 137) SC.
The Court is urged to so hold.

It was postulated, that a critical reading of Section 22(2) of the Federal High Court Act CAP. F12 LFN, 2004, does not apply to a situation where a cause or matter does not fall within the jurisdiction of the Federal High Court to make it applicable.

Further postulated, that the said Section 22(2) of the Federal High Court Act CAP. F12 LFN, 2004, does not contemplate a situation where the issue of jurisdiction is raised and judicially determined as in the instant case.

The Court is urged to so hold that the Appellant cannot eat its cake and have it, having

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strongly contested the issue of jurisdiction of the Court below in a judicial proceeding leading to the ruling of the subject of this appeal.

Conclusively, the Court is urged to dismiss the appeal and uphold the ruling of the Court below.

On his part thereof, the Appellant filed a reply brief to the Respondents brief. That was on 24/04/2019. Though unpaginated, the reply brief actually spans a total of 10 pages. Pages 1, 3, paragraphs 1.1, 1.8, relate to the Respondents preliminary objection. By the said reply thereof, the Appellant has conclusively urged upon the Court to hold that the Respondents preliminary objection challenging Ground 3 of the Notice of Appeal and Issue No. 3 thereon, is a gross misconception and out of tune with the law. Thus, the Court is urged to discountenance the said preliminary objection.

The reply to the Respondents argument on the merits is contained at pages 3, 10 of the reply brief, thereby urging the Court to discountenance the Respondents argument and accordingly uphold the Appellants argument and allow the appeal.

I have amply considered the

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circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal.

DETERMINATION OF THE RESPONDENTS
PRELIMINARY OBJECTION
I am not unmindful of the fact that the Respondent has deemed it expedient to raise a preliminary objection under paragraphs 5.1, 5.4 at pages 16, 17, of the brief thereof. I have deemed it expedient to first and foremost deal with the said preliminary objection before proceeding to determine the appeal on the merits. If at all necessary.

First and foremost, it ought to be asserted, that the Respondents Preliminary Objection regarding Section 22 (2) of the Federal High Court Act, which provides for transfer of the Appellants case, or any case for that matter is fundamentally a fresh issue. Most ironically, no leave was ever sought by the Respondent to raise same now on appeal, talk less of being granted by this Court. Therefore the objection is undoubtedly not competent and same is accordingly hereby discountenanced.

As alluded to above, it is the contention of the

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Respondent, that ground 3 of the notice of appeal is not competent in that it does not arise from the decision of the Court below and no leave of the Court was sought to raise same as a fresh issue herein.
However, its obvious from the records, that the instant appeal is a continuation of the proceedings before the Court below. That the said ground 3 questioning the decision of the Court in its failure to properly apply the law cannot by any stretch of imagination be claimed to be a fresh issue. See WAZIRI VS. ALI (2009) 4 NWLR (Pt. 1130) 178.
Undoubtedly, a ground of appeal such as the said ground 3, that tends to question the failure of the trial Court to appropriately apply the law is deemed a ground of law for which no leave is required to be raised on appeal. See AG AKWA IBOM VS. POWERCOM  NIG. LTD (2004) 6 NWLR (Pt. 868) 202; ACHONU VS. OKUWOBI (2017) 4 SC (Pt. 11) 52 @ 71.

Consequently, the Respondents preliminary objection in question is deemed incompetent, and it is hereby dismissed.

DETERMINATION OF THE APPEAL ON THE MERITS
Having amply considered the circumstances surrounding the appeal, I am appreciative of

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the fact that the two issues raised in each of the two briefs of argument of the respective parties are not at all mutually exclusive. I therefore deem it expedient to adopt the two issues raised by the Appellants learned counsel for determination.

ISSUE NO.1
Most instructively, the first issue raised the very vexed question of whether given the peculiar facts of the Appellants case, as constituted before the Court below, the case does not form within the jurisdiction of the Court below. The issue is distilled from grounds 1, 2, 4, 6 and 7 of the notice of appeal.

Undoubtedly, the issue of jurisdiction is most fundamental. Indeed, the jurisdiction of any Court or Tribunal is circumscribed by the Constitution of the Federal Republic of Nigeria, 1999, as amended and the law creating such Court. See AG LAGOS STATE VS. AG FEDERATION (2014) 4 SC (Pt. 11) 1 @ 27. In the instant case, the jurisdiction of the Court below as a Federal High Court is circumscribed by the provision of Section 251 (1) of the 1999 Constitution (Supra) which provides:
Notwithstanding anything to the contrary contained in this Constitution and in addition to

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such other jurisdiction as may conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(b) Connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation.
See also the Federal High Court Act CAP. F 12, Laws of the Federation of Nigeria, 2004, most especially Section 7 (1) (b) thereof.
With a view to determining whether or not a Court has jurisdiction to entertain a matter before it, it behooves the Court to accord a critical albeit dispassionate consideration upon the nature of the case vis a vis the originating process of the plaintiff. See JOV. VS. IYORTYOM (2014) 5, 6 SC (Pt. 111) 82 @ 137. In the instant case, the Appellants statement of claim (contained at pages 5, 11 of the record) is very much relevant.
It is obvious from the Appellants pleadings, most especially paragraphs 16, 17 and 18 of the said statement of claim thereof, the gravemen of the Appellants

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complaint unmistakably relates to under remittance of Pay As You Earn (PAYE) Tax for the period 1999 2016 Tax years amounting to the alleged sum N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo). See paragraphs 16, 17, 18 and 19 of the statement of claim:
(16) The Plaintiff avers that rather than the Defendant properly addressing the Plaintiffs letter of 22nd January, 2018 highlighting germane issues why the Plaintiff should not be subjected to another unjustified and undue fresh tax assessment, the Defendant merely glossed over the germane issues raised in the aforesaid Plaintiffs Tax Consultants’ Letter and on the contrary arrogantly and aggressively made a fresh demand for N831,466,545.86 (Eight Hundred and Thirty One Million, Four Hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) as the alleged PAYE Tax under-remittance allegedly payable by the Plaintiff for 1999-2016 Tax Years in their letter of 2nd February, 2018 addressed to the Plaintiff. The Plaintiff shall at trial rely on the copy of the

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aforesaid Defendant’s letter.
(17) The Plaintiff avers that in the Defendant’s attempt to justify the wrongly intended tax investigation or tax audit and or the purported/alleged PA YE Tax under-remittance of N831,466,545.86 (Eight Hundred and Thirty One Million, Four hundred and Sixty Six Thousand, Five Hundred and Forty Five Naira, Eighty Six Kobo) allegedly payable by the Plaintiff for 1999-2016 Tax Years, the Defendant yet wrote another letter dated 23rd March, 2018 to the Plaintiff claiming that it relied on the Plaintiffs records and files with the Defendant and other third party documents and information in carrying out the fresh Tax Audit/PAYE Tax assessment against the Plaintiff for 1999-2016 Tax Years. The Plaintiff shall rely on the copy of the aforesaid Defendant’s letter at trial.
(18). (iii) The plaintiff duly and completely paid N10,321,892.31 (Ten Million, Three Hundred and Twenty One Thousand, Eight Hundred and Ninety Two Naira, Thirty One Kobo) assessed as its Revised and Final Tax Liability for 2008, 2014 and 2015 respectively by the Defendant in the spirit of settlement, understanding and altruistic corporate

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support to the IGR of Kwara State Government which the Defendant duly accepted, received and acknowledged;
(19). The plaintiff hereby challenges the Defendant to produce proof of the alleged Plaintiffs records and files with her and other third party documents and information in carrying out the fresh Tax Audit/PAYE Tax under-remittance against the Plaintiff for 1999- 2016 Tax Years at the trial.
Contrary to the Appellants contention on issue No.1, by virtue of the foregoing pleadings in paragraphs 16, 17 18 and 19 of the statement of claim, the subject matter of the instant case is relating to PAYE TAX, which is arguably not a tax to be paid by the Appellant to the Federal Government but to the Kwara State Government.
Interestingly, the provision of Section 251 (b) of the 1999 Constitution (Supra), has been a subject of interpretation in a plethora of authorities by both the Apex Court and the Court of Appeal. In the case of IKENNE LG VS. WEST AFRICAN PORTLAND AND CEMENT PLC (2017) ALL FWLR 1747, 1768 where it was aptly held:
It is clear from the above provision that Section 251 (b) of the Constitution of the

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Federal Republic of Nigeria 1999 is on Federal Taxation of companies i.e. the tax companies are to pay to the Federal Government for operating as companies.
By the provisions of Section 1 part 1 of the Taxes and Levies (Approved List for Collection) Act 1988, Volume 21, Laws of the Federation of Nigeria, 2004, the taxes payable to and collectable by the Federal Government unequivocally have been listed out:
1. Company income Tax;
2. Withholding Tax on Companies, Residents of the Federal Capital Territory, Abuja and Non-Resident individuals;
3. Petroleum profit Tax;
4. Values added Tax;
5. Education Tax;
6. Capital gains Tax on residence of the Federal Capital Territory, Abuja, bodies corporate and Non-Resident individuals;
7. Stamp Duties on bodies corporate and residents of the FCT, Abuja;
8. Personal Income Tax in respect of:
(a) Members of the Armed Forces;
(b) Members of the Nigeria Police Force;
(c) Residents of the Federal Capital Territory, Abuja; and
(d) Staff of Foreign Affairs and non-resident individual.
Unarguably, it is not controversial at all that the Appellant is not

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a company within the purview of the Companies and Allied Matters Act. What the Court below raised as an issue is whether the Appellants grouse falls [squarely] within the ambit of the provision of Section 251 (1) of the 1999 Constitution as amended, since the specie of the tax involved is PAYE payable to the Respondent. Contrary to the Appellants preposterous contention, there is nowhere in the entire pleadings before the Court below the issue of the type of tax the Appellant was being required to pay was made an issue. Indeed, as copiously alluded to above, what the Appellant actually made an issue in the said pleadings thereof was the allegation of having been subjected to fresh tax assessment by the Respondent after having fully settled the tax liability thereof to the Respondent. Thus, as aptly postulated by the Respondents learned counsel, the Court below was absolutely right in coming to the inevitable conclusion at page 81 of the record:
In the instant case, the issue before the Court was on personal income tax, PAYE and the eligible Court to try the issue is in the State High Court.”
The fact that the

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wordings of the provision of Section 251(1) (b) of the 1999 Constitution are plain and unambiguous, to the effect that the phrase therein taxation of companies is devoid of differentiation or classification of the kind of tax a company is required to pay, is not at all in doubt. It is a cardinal doctrine of statutory interpretation that:
Where an interpretation of a statute will result in defeating the object of the statute, the Court will not lend its weight to such interpretation. The language of the statute must not stretch to defeat the aim of the statute.
See ANSALDO (NIGERIA) LIMITED VS. NPFMB (1991) 3 SC 29 @ 38; See also IDEHEN VS. IDEHEN (1991) 7 SC (Pt. 111) 104 @ 151; A.G. ONDO STATE VS. A.G. EKITI STATE (2001) 9, 10 SC 116 @ 152, 153.

In the circumstance, the first issue ought to be and it is hereby answered in the negative and accordingly resolved against the Appellant.

ISSUE NO. 2
The second Issue raises the question of whether the Court below has not improperly and or wrongly apprehended the Appellants case when it declined jurisdiction to entertain same while relying on previous

30

decisions of appellate Courts whose facts are dissimilar with the facts of the instant case. The second issue is distilled from Grounds 5 and 8 of the Amended Notice of Appeal.

Instructively, the gravamen of the Appellants grouse under the Issue No. 2 in question is predicated upon the finding of the Court below at pages 81, 82 of the record to the conclusive effect thus:
Having said all that, the question I must now ask myself is, if the Federal High Court has jurisdiction over matters of personal income and withholding taxes and to answer this I will refer to the cases(s) of:
Wilbros (Nigeria) Limited V. A.G. AKWA IBOM State (2008) 5 NWLR (part 1081) 484 at page 495, 496 paragraphs F – A pages 505, 506 paragraphs G – C Shittu V. Nigerian Agricultural and Co-Operative Bank Limited (2001) 10 NWLR (part 721) 298 Egbue V. Araka (2003) 9 MJSC 12 at 35.

There is nothing in this present suit which presents an opportunity to this Court to expound on its well circumscribed jurisdiction, rather it is an invitation to expand it which invitation I must resist and reject.

The Appellant submitted in the

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main, that the Court below improperly and or wrongly apprehended the Appellants case when it declined jurisdiction to entertain same while relying on previous decisions of appellate Courts whose facts are dissimilar with the facts of the Appellants case at the Court below.

The well cherished doctrines of interpretation regarding the provisions of Section 251(1) (b) of the 1999 Constitution (supra) have been reiterated in a plethora of formidable authorities. Unarguably, the question of interpretation of statutory provisions is an issue of law and not facts. The provision of Section 251(1) (b) of the 1999 Constitution (supra), which vested exclusive jurisdiction upon the Federal High Court (the Court below), to the exclusion of any other listed in the said Section, is most undoubtedly a special provision.
Indeed, it is a well settled doctrine of interpretation that where there are provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The justification of this doctrine is not

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far-fetched. As aptly postulated by the Apex Court:
The reason behind the ruling is that the legislature in making the special provisions in considering the particular case and expressing its will in regard to that case, hence, the special provisions form an exception importing the negative, in other words, the special case provided for in it is excepted and taken out of the general provision and its ambit. The general provisions are enacted in the same piece of legislation. Dryden V. The Overge as of putness of Putney.
See also BAMIGBOYE VS. ADMINISTRATOR GENERAL (1954) 14 WACA 616 per Bairamian, J.; @ 619; quoted with approval by the Supreme Court in A.G. LAGOS STATE VS. A.G. FEDERATION (2014) ALL FWLR (Pt. 740) 1296 SC @ 1334, 1335 paragraphs G – G.
What is more, the trite doctrine of Expressio Unius Est Esclusio Atterious i.e. the Express mention of one thing in a statutory provision, automatically excludes any other which otherwise would have been applied by implication, is very much applicable to the instant case. See
 A.G. LAGOS STATE VS. A.G. FEDERATION (supra) @ 1348, 1349 paragraphs H – G.
Thus, applying

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the foregoing doctrine to the instant case, by alluding to the specific items in Section 251(1) of the 1999 Constitution (supra) on which the Court below has been cloaked with exclusive jurisdiction, any other items not specifically alluded to therein is deemed exempt[ed] and excluded therefrom. Therefore, the very subject matter of the Appellants suit in question Pay as You Earn Tax (PAYE) Tax, not having been specifically alluded to in the said Section 251(1) of the 1999 Constitution (Supra), is deemed not to have fallen within the jurisdiction of the Federal High Court (the Court below). And I so hold.
Contrary to the erroneous submission of the Appellant, the authorities cited and relied upon by the Court below in support of its ruling, thereby declining jurisdiction therein are formidably in accord with the foregoing trite fundamental doctrines of interpretation. Most particularly, in WILBROS (NIGERIA) LIMITED V. A.G. AKWA IBOM STATE (2008) 5 NWLR (part 1081) 484 at page 495, 496 paragraphs F – A pages 505, 506 paragraphs G – C, the Apex Court aptly held:
The jurisdiction of the Federal High Court to entertain

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tax matters under Section 251(1) of the 1999 Constitution is limited to and connected with Taxation of Companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation and does not extend to the personal income tax or withholding tax of individuals that are not subjected to the Federal taxation Section 251(1) of the 1999 Constitution qualifies the provisions of Section 251. This at the same time excludes the tax accruable to a State.

In the circumstance, the answer to the second issue is inevitably in the negative, and same is hereby resolved against the Appellant.

ISSUE NO. 3
The third and last issue raises the vexed question of whether the Court below was right to strike out the Appellants case for lack of jurisdiction without regard to the extant provisions of the Federal High Court. The said issue has been distilled from Ground 3 of the Amended Notice of Appeal.

Most instructively, the provision of Section 22(2) of the Federal High Court Act, CAP. F12 Laws of the Federation 2004 (supra) upon which the third issue is anchored is to the obvious effect:

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(2) No cause or matter shall be struck out by the Court merely on the ground that such a cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.
In the instant case, it is not at all in doubt, that having found that it lacks the requisite jurisdiction to entertain the instant suit, the Court below came to the ultimate conclusion at page 82 of the record:
In the circumstance, I find that this suit has not been lodged at the appropriate Court and this Court is thus the requisite jurisdiction to entertain it let alone determine same. In the circumstance, this suit in (sic) accordingly struck out for lack of jurisdiction. I make no order as to cost.
Undeniably, the foregoing conclusion resulting in the ultimate striking out of the suit was reached in consequence of the hearing,

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determination, and upholding the Respondents preliminary objection challenging the jurisdiction of the Court below (page 35 of the record). The said preliminary objection was vehemently contested by the Appellant (page 60, 66 of the record); thereby resulting in delivering the vexed ruling.
Thus, as aptly postulated by the Respondent, the vexed ruling of the Court below qualifies to be a decision within the contemplation and purview of the mandatory provision of Section 318(1) of the 1999 Constitution (supra). The Court below having reached the inevitable conclusion that it lacked the vires to determine the suit in question, consequent upon hearing argument of the respective learned counsel thereupon, it had no option left thereto other than to strike out the suit vide a consequential order. Thus, I have no iota of doubt in my mind that the Court below was absolutely right in striking out the vexed suit rather than transferring same to the Kwara State High Court in accordance with Section 22(1) of the Kwara State High Court (supra). See ABRU VS. THE STATE (2011) 17 NWLR (Pt. 1275) 1; AJAYI VS. ADEBIYI (2012) 11 NWLR (Pt. 137) SC.

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Most certainly, by virtue of the obvious circumstances surrounding the instant case, the provision of Section 22(1) of the Federal High Court Act, CAP. F12 Laws of the Federation, 2004 is very much inapplicable to a situation where the issue of jurisdiction is raised, vehemently contested, and substantially determined, as in the instant case. It may have been a different ball-game, if the Appellant had right from the outset conceded to the Respondents, timeous preliminary objection, thus saving the Court and the respective parties the excruciating burden of long hours spent on research, preparation, deliberation and determination of the said preliminary objection.

In the circumstance, the third issue ought to be, and it is hereby answered in the positive and accordingly resolved against the Appellant.

Thus, having resolved all the three issues canvassed by the Appellant against him, there is no gainsaying the fact that the instant appeal is grossly unmeritorious, and same is hereby dismissed by me.

Consequently, the vexed ruling of the Court below delivered on November 2, 2018 in Suit No. FHC/IL/18/2018 by the Hon. Justice N. I.

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Afolabi, J. is hereby affirmed.
There shall be no Order in regard to Costs.

HAMMA AKAWU BARKA, J.C.A.: After carefully analysing the submissions of the learned counsel in line with the record of appeal, I am satisfied that the three issues that arose for determination were eloquently dealt with. I therefore join my learned brother Ibrahim Mohammed Musa Saulawa PJ in dismissing the appeal, and abide on order as to costs in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: My learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA, obliged me with the draft of the leading Judgment just delivered. I agree with His Lordship that the Preliminary Objection raised by the Respondent against ground NO. 3 of the Notice of Appeal is a misconception of the present position of law to the effect that no leave of Court is required to raise a fresh ground of law on appeal. Accordingly, I also dismiss the Preliminary Objection of the Respondent. I also agree with the reasoning and conclusion reached in the resolution of three issues that arose for determination in the appeal and I adopt same as mine in dismissing the

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appeal in it’s entirety for lack of merit. Appeal dismissed.

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Appearances:

Abdulwahab Bamidele, Esq. with him, H.G. Ibn Mahmud, Esq. and M. I. Olohungbebe For Appellant(s)

M.A. Suleiman, Esq. with him, E.O. Oguntimehin, Esq. For Respondent(s)

 

Appearances

Abdulwahab Bamidele, Esq. with him, H.G. Ibn Mahmud, Esq. and M. I. Olohungbebe For Appellant

 

AND

M.A. Suleiman, Esq. with him, E.O. Oguntimehin, Esq. For Respondent