CHIEF G.O. IGBINEDION C.F.R. v. EDO STATE BOARD OF INTERNAL REVENUE
(2017)LCN/9452(CA)
In The Courtroom of Attraction of Nigeria
On Friday, the third day of February, 2017
CA/B/371/2015
RATIO
CONSTITUTIONAL LAW: THE RIGHT TO FAIR HEARING
There is no doubt that the right to fair hearing is a basic right enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended). In the determination of any civil matter, the right of fair hearing must be adhered to. The 1999 Constitution is the supreme law of the land to every citizen of Nigeria. It cannot be waived, neither can its breach acquiesced in. The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case.
In the case of – OTAPO & ORS VS SUNMONU & ORS (1987) 2 NWLR Part 58 Page 587 at Page 605 – the Supreme Court held among others that –
“A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing.
Fair hearing is central to the concept of the Rule of Law. The concept of the Rule of Law is itself predicated upon the twin Latin Maxims (i) Audi alterem partem (hear the other side) and (ii) Nemo judex in causa sua (a Judge must not give Judgment in his own cause). These two fundamental concepts of the Rule of Law are inextricably interwoven with justice system.
See the following cases: –
– KOTOYE VS CBN (1999) 1 NWLR Part 98 Page 419 at 440;
– LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS GANI FAWEHINMI (1985) 2 NWLR Page 300;
– OGUNDOYIN VS ADEYEMI (2001) 13 NWLR Part 750 Page 430;
– U.B.A. VS ACHONU (1990) 6 NWLR Part 156 Page 254;
– MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR Page 424;
– SALU VS EGBABOR (1994) 6 NWLR Part 348 Page 23;
– MOHAMMED VS OLAWUNMI (1990) 2 NWLR Part 133 Page 458;
– UNION BANK OF NIGERIA VS NWOKOLO (1995) 6 NWLR Part 400 Page 127;
– OKAFOR VS A.G. ANAMBRA STATE (1991) 3 NWLR Part 200 Page 59;
– BAMIGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR
Part 622 Page 290. PER JIMI OLUKAYODE BADA, J.C.A.
CONSTITUTIONAL LAW: EFFECT OF SUPREMACY OF THE CONSTITUTION OVER ANY LAW
The 1999 Structure of the Federal Republic of Nigeria (as amended), is supreme over the legal guidelines made by the States in Nigeria and any regulation handed by a State Home of Meeting which is inconsistent with the provisions of the 1999 Structure, shall to the extent of its inconsistency be void. See Part 1(3) of the 1999 Structure of the Federal Republic of Nigeria (as amended). PER JIMI OLUKAYODE BADA, J.C.A.
COURT: JURISDICTION; EFFECT OF THE DECISION OF A COURT THAT LACKS JURISDICTION
The problem of jurisdiction is key and essential, it’s a sine qua non to an motion. It is because of its significance that it may be raised by events at any stage of the case and even for the primary time on enchantment earlier than an appellate Courtroom. Jurisdiction is like what blood is in human physique as a result of with out blood the organs of the physique can’t perform in any respect.
Additionally, the place a Courtroom lacks jurisdiction, regardless of how properly the trial was carried out, the trial can be a nullity. Put in different phrases, the existence or absence of jurisdiction goes to the very root of the matter in order to maintain or nullify the Courts choice or order in respect of the related subject material.
See the next circumstances:-
– ALHAJI SAIDU ABDULSALAM VS ALHAJI ABDULRAHEEM SALAM (2002) 6 SCNJ Web page 388;
– ELABANJO VS DAWODU (2006) 6 SCNJ Web page 204;
– JOHN EBHODAGHE VS CHIEF OMOKHAFE (2004) 12 SCNJ Web page 106. PER JIMI OLUKAYODE BADA, J.C.A.
ACTION: CONSEQUENCE OF NON-FULFILLMENT OF A PRE-CONDITION STATED IN LAW
“The place of the regulation is that the place the regulation requires the success of a pre-condition earlier than a selected act or motion is to be finished, non-fulfillment of such a precondition might be prejudicial to the defaulting get together. See the next circumstances:- PLATEAU CONST. LTD VS AWARE (Supra); – AINA VS JINADU (Supra); – C.C.B. NIG LTD VS A.G. ANAMBRA STATE (Supra). PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Courtroom of Attraction of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Courtroom of Attraction of Nigeria
MOORE ASEIMO A. ADUMEIN Justice of The Courtroom of Attraction of Nigeria
Between
CHIEF G.O. IGBINEDION C.F.R. Appellant(s)
AND
EDO STATE BOARD OF INTERNAL REVENUE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Main Judgment): That is an enchantment towards the Ruling of the Excessive Courtroom of Justice, Edo State sitting at Benin Metropolis in Go well with No. B/RC/113/2015 ? EDO STATE BOARD OF INTERNAL REVENUE AND CHIEF G.O. IGBINEDION delivered on the 20th October, 2015.
Briefly, the details of this case are that upon an Ex-parte software filed on the decrease Courtroom on 14th day of October 2015, the Respondent who was the Applicant on the decrease Courtroom prayed for the next reliefs: –
(1) An order to distrain upon property No. EDSG/546, belonging/occupied by the Respondent at No. 25 Airport Street, Benin Metropolis in satisfaction of the Land Use Cost Legal responsibility within the sum of N4, 838, 729.18 (4 Million Eight Hundred and thirty eight thousand, Seven Hundred and Twenty-Eight Naira, Eighteen Kobo) established towards the Respondent.
?(2) An order to distrain towards any moveable items, chartel, bond or securities or any type of property belonging to the Respondent in satisfaction of the Land Use Cost Legal responsibility established towards the Respondent as last and conclusive cost as a result of Applicant.
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On the conclusion of listening to, the decrease Courtroom in its Ruling, ordered as follows: –
?Applicant (by or by way of its officers) is permitted and permitted to distrain upon property marked and numbered as EDSG/546 belonging to or occupied by the Respondent Chief G.O, Igbinedion at No. 25, Airport Street, Benin Metropolis, Edo State.
It’s additional ordered that the Applicant is permitted to distrain towards any moveable items, chartel, bonds or securities or any type of property belonging to the Respondent, Chief G.O. Igbinedion in satisfaction of the Land Use Cost Legal responsibility within the sum of N4, 838, 729.18 which demand discover was duly served on the Respondent by advantage of Exhibit BR?1 and as deposed to in Paragraph 2 ? 16 of the affidavit in assist of this software as last or and conclusive Land Use Cost as a result of Applicant appearing for and on behalf of Edo State Authorities.?
The Appellant upon being conscious of the aforesaid order was dissatisfied and in consequence lodged a discover of enchantment towards the choice primarily based on an ex-parte proceedings, vide a discover of enchantment filed on 12th day of November, 2015.
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The Realized Senior Counsel for the Appellant formulated two points for the dedication of this enchantment. The problems are set out as follows: –
(1) Whether or not the Appellant?s proper to truthful listening to as offered in Part 36(1) of the Structure of the Federal Republic of Nigeria 1999 (as amended) has not been breached by the ex-parte proceedings used to determine legal responsibility towards him.
(2) Whether or not the trial Courtroom had jurisdiction over this matter relying solely on an ex-parte proceedings to search out the Appellant chargeable for which a distraining order was decreed.
The Realized Counsel for the Respondent, however, formulated three points for the dedication of the enchantment. The mentioned three points are set out as follows: –
(1) Whether or not this honourable Courtroom has jurisdiction over this current enchantment when in actual fact it’s not an enchantment over the choice of the Excessive Courtroom sitting as an Appellate Courtroom.
(2) Whether or not within the circumstance of this enchantment, the Appellant?s proper to truthful listening to has been breached.
(3) Whether or not the trial Courtroom has jurisdiction over this matter counting on an ex-parte proceedings find the Appellant property
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liable to be distrained.
On the listening to of this enchantment, the Realized Senior Counsel for the Appellant said that the enchantment is towards the Ruling of the Excessive Courtroom of Justice, Benin in Edo State of Nigeria delivered on 20/10/2015. The Discover of Attraction was filed on 12/11/2015 and the Document of Attraction was transmitted on 3/12/2015. The Appellant?s temporary of argument was filed on 7/12/2015.
Realized Senior Counsel for the Appellant adopted and relied upon the mentioned Appellant?s temporary of argument as his argument on this enchantment.
He lastly urged that the enchantment be allowed.
The Realized Counsel for the Respondent additionally referred to the Respondent?s temporary of argument filed on 2/6/2016 which was deemed as correctly filed on 29/6/2016.
He adopted and relied on the mentioned Respondent?s temporary of argument as his argument in urging that the enchantment be dismissed.
?I’ve fastidiously examined the problems formulated for dedication of the enchantment by counsel for the events. The problems formulated for the dedication of the enchantment by the Appellant are according to the grounds of enchantment whereas these of the Respondent should not completely in line
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with the grounds of enchantment. The Respondent didn’t file a cross-appeal.
Due to this fact, I’ll depend on the problems as formulated on behalf of the Appellant within the dedication of the enchantment.
ISSUES FOR DETERMINATION OF THE APPEAL
ISSUE NO. 1
Whether or not the Appellant?s proper to truthful listening to as offered in Part 36(1) of the Structure of the Federal Republic of Nigeria 1999 (as amended) has not been breached by the ex-parte proceedings used to determine legal responsibility towards him.
The Realized Senior Counsel for the Appellant in his submission said that truthful listening to is a primary proper enshrined within the Structure of the Federal Republic of Nigeria. He submitted that the place there’s resort to ex-parte software, there have to be a case of actual urgency. He relied on:- KOTOYE VS CENTRAL BANK OF NIGERIA (1999) 1 NWLR Half 98 Web page 419 at 440.
He additionally submitted that the Structure of the Federal Republic of Nigeria is supreme over legal guidelines made by States in Nigeria.
?He went additional that the place there’s a profitable plea of denial of truthful listening to, such a call can’t be allowed to face. He relied on the case of ? AUDU VS F.R.N.
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(2013) VOL 1. 219 LRCN Half 2 Web page 223 at 236 KZ.
He lastly urged that the enchantment be allowed and resolve the problem in favour of the Appellant.
In his response, the Realized Counsel for the Respondent submitted that the Appellant?s proper to truthful listening to has been noticed by the Respondent find the Appellant?s property liable to be distrained. He referred to web page 5 of the Document of Attraction in contending that the Land Use Cost demand discover in respect of the property No. EDSG/546 was addressed to the proprietor/occupier. He referred to ? Part 15(2) of the Land Use Cost Legislation 2012.
He said that the Appellant should enchantment to Tax Evaluation Income Committee (TARC) inside 21days of the supply of the discover which he mentioned the Appellant did not do. He went additional that after the choice of TARC, the Appellant has 21days inside which to enchantment to the Excessive Courtroom of Edo State.
?The Realized Counsel for the Respondent contended that by a joint studying of the provisions of Land Use Cost Legislation and Part 38 of the Edo State Income Administration Legislation 2012, that the Respondent is just not in breach of the Appellant?s proper
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to truthful listening to.
He relied on the next circumstances:-
– INDEPENDENT TELEVISION/RADIO VS EDO STATE BOARD OF INTERNAL REVENUE (2014) ALL FWLR Half 759 Web page 1144; – ORUGBE VS UNA (1997) Eight NWLR Half 516 Web page 225.
He urged that the problem be resolved in favour of the Respondent.
The grounds of enchantment (with particulars of error) of the Appellant are set out as follows: –
(1) The realized trial Decide erred in regulation when he delivered Judgment towards the Appellant primarily based on an ex-parte software with out giving the Appellant proper of truthful listening to in compliance with Part 36 (1) of the Structure of the Federal Republic of Nigeria 1999 (as amended).
(2) The realized trial Decide erred in regulation when he assumed jurisdiction when he has no jurisdiction to adjudicate on the subject material which lack of jurisdiction had occasioned the Appellant a really critical miscarriage of justice.
Particulars of Error
(a) The realized trial Decide relied on Part 38 (7) of the Edo State Income Administration Legislation 2012 which regulation is just not relevant to the matter of Land Use Cost Legislation of 2012.
(b) The situation precedent in Part 19
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of the Land Use Cost Legislation of 2012 was not complied with earlier than the realized trial Decide delivered Judgment on an ex-parte software on the 20th day of October 2015.
There isn’t a doubt that the proper to truthful listening to is a primary proper enshrined within the 1999 Structure of the Federal Republic of Nigeria (as amended). Within the dedication of any civil matter, the proper of truthful listening to have to be adhered to. The 1999 Structure is the supreme regulation of the land to each citizen of Nigeria. It can’t be waived, neither can its breach acquiesced in. The correct to truthful listening to is a elementary and constitutional proper of a celebration to a dispute to be afforded a possibility to current his case to the adjudicating authority. The correct lies within the process adopted within the dedication of a case and never within the correctness of the choice arrived at within the case.
Within the case of ? OTAPO & ORS VS SUNMONU & ORS (1987) 2 NWLR Half 58 Web page 587 at Web page 605 ? the Supreme Courtroom held amongst others that ?
?A listening to can solely be truthful when all events to the dispute are given a listening to or a possibility of a listening to. If one of many
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events is refused listening to or not given a possibility to be heard, the listening to can’t qualify as a good listening to.?
Honest listening to is central to the idea of the Rule of Legislation. The idea of the Rule of Legislation is itself predicated upon the dual Latin Maxims (i) Audi alterem partem (hear the opposite facet) and (ii) Nemo judex in causa sua (a Decide should not give Judgment in his personal trigger). These two elementary ideas of the Rule of Legislation are inextricably interwoven with justice system.
See the next circumstances: –
– KOTOYE VS CBN (1999) 1 NWLR Half 98 Web page 419 at 440;
– LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS GANI FAWEHINMI (1985) 2 NWLR Web page 300;
– OGUNDOYIN VS ADEYEMI (2001) 13 NWLR Half 750 Web page 430;
– U.B.A. VS ACHONU (1990) 6 NWLR Half 156 Web page 254;
– MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR Web page 424;
– SALU VS EGBABOR (1994) 6 NWLR Half 348 Web page 23;
– MOHAMMED VS OLAWUNMI (1990) 2 NWLR Half 133 Web page 458;
– UNION BANK OF NIGERIA VS NWOKOLO (1995) 6 NWLR Half 400 Web page 127;
– OKAFOR VS A.G. ANAMBRA STATE (1991) Three NWLR Half 200 Web page 59;
– BAMIGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR
Half 622 Web page 290.
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On this enchantment into consideration, the Respondent introduced the appliance ex-parte on the decrease Courtroom below Part 38 of the Edo State Income Administration Legislation 2012. And the decrease Courtroom granted an order which approved and permitted the Applicant to distrain upon property marked and numbered as No. EDSG/546 belonging to or occupied by the Respondent ? Chief G.O. Igbinedion at No. 25 Airport Street, Benin Metropolis, Edo State.
The complete order of the decrease Courtroom was set out earlier on this Judgment.
It was contended on behalf of the Counsel for the Respondent, that Part 38 of the Edo State Income Administration Legislation 2012, stipulates a particular proceedings, in impact a particular process of Edo State Home of Meeting offering for mode of approaching the Courtroom because it pertains to Income issues.
The Realized Senior Counsel for the Appellant was of the view that the process adopted each by the Respondent and the decrease Courtroom are flawed.
I’m of the view that the process adopted by the Respondent and the decrease Courtroom from which the realized trial Decide made the order distraining on the property of the Appellant primarily based on
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the provisions of Part 38 of the Edo State Income Administration Legislation 2012 (an enactment of the Edo State Home of Meeting) are flawed, because it contravened of the provisions of Part 36(1) of the 1999 Structure of the Federal Republic of Nigeria (as amended), which is a provision guaranteeing truthful listening to within the dedication of the civil rights and obligations arising, involving personal residents and/or authorities our bodies such because the Respondent. The 1999 Structure of the Federal Republic of Nigeria (as amended), is supreme over the legal guidelines made by the States in Nigeria and any regulation handed by a State Home of Meeting which is inconsistent with the provisions of the 1999 Structure, shall to the extent of its inconsistency be void. See Part 1(3) of the 1999 Structure of the Federal Republic of Nigeria (as amended).
On this enchantment into consideration, there isn’t a doubt that the Appellant having been disadvantaged of the chance to take part within the Courtroom proceedings of 20th day of October 2015 the place the Respondent used ex-parte software to acquire Ruling towards the Appellant, due to this fact his proper to truthful listening to has been breached.
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Within the end result, the Ruling of the decrease Courtroom made on 20th day of October 2015, primarily based on the breach of the constitutional provisions of truthful listening to as offered below Part 36 of the 1999 Structure of the Federal Republic of Nigeria won’t be allowed to face.
In view of the foregoing, this Concern No. 1 is hereby resolved in favour of the Appellant and towards the Respondent.
ISSUE NO. 2
Whether or not the trial Courtroom had jurisdiction over this matter relying solely on an ex-parte continuing to search out the Appellant chargeable for which a distraining order was decreed.
The Realized Senior Counsel for the Appellant submitted that Edo State Income Allocation Legislation (ESRAL) 2012 didn’t present for the usage of ex-parte proceedings to determine legal responsibility towards the Appellant with out listening to him or placing him on discover of his legal responsibility. He referred to Part 38 of the regulation.
He went additional in his submission that the Courtroom beneath had no jurisdiction to determine the matter on an ex-parte proceedings.
He relied on the next circumstances: –
– MADUKOLU VS NKEMDILIM (1962) 2 NSCC Web page 374;
?- OPARA VS AMADI (2014) 228 LRCN Web page 175 at 189 FZ.
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He submitted additional {that a} mixed studying of Part 38 of the Edo State Income Administration Legislation (ESRAL) 2012 and Part 19 of the Land Use Cost Legislation will show clearly that there isn’t a room for ex-parte software for the enforcement of Land Use Cost Legal responsibility in that the identical ESRAL made provision for the resort to the usage of the relevant Excessive Courtroom (Civil Process) Guidelines within the enforcement of the legal responsibility below the income regime. He referred to Part 38(3).
The Realized Senior Counsel for the Appellant contended that all through the size and breadth of the affidavit in assist of the appliance, there was nowhere it was said that the Chairman approved the deponent to use to the Decide in Chambers as offered by Part 38 (3) of the ESRAL.
He then submitted that the place the regulation required the success of a precondition earlier than a selected act or motion, substantive or procedural is to be finished/taken, non-fulfillment of the precondition or non-compliance might be prejudicial to the defaulting get together.
?He referred to the next circumstances:-
– PLATEAU CONST. LTD VS AWARE (2014) 6 NWLR Half 1404 Web page 519 at 540
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paragraphs D ? E;
– AINA VS JINADU (1992) Four NWLR Half 233 Web page 91 at 109 paragraph B;
– C.C.B. (NIG) LTD VS A.G. ANAMBRA STATE (1992) Eight NWLR Half 261 Web page 528 at 556 paragraph G.
In his response, the Realized Counsel for the Respondent submitted that the availability of Part 38 of the Edo State Income Administration Legislation, 2012 applies typically to all defaulters because it pertains to tax issues. He urged that the submission of Realized Counsel for the Appellant be discountenanced.
He referred to Part 19 of the Land Use Cost Legislation in Edo State and submitted that the regulation did not specify the mode of software thereby making for a resort to Edo State Income Administration Legislation below Part 38 in recovering Land Use Cost Liabilities.
It was additionally submitted on behalf of the Respondent that the argument on the purpose that the appliance was not approved by the Chairman as submitted by counsel for the Appellant was not tenable as Paragraph Three of the Respondent?s affidavit in assist of the movement ex-parte clearly indicated that the Applicant?s authority was sought.
?The Realized Counsel for the Respondent contended
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that the requirement below Part 38 of the Edo State Income Administration Legislation 2012, doesn’t require the tax defaulter within the circumstances of this case to be placed on discover.
He lastly urged that the enchantment be dismissed.
The problem right here is whether or not the trial Courtroom had jurisdiction over this matter relying solely on an ex-parte proceedings to search out the Appellant chargeable for which a distraining order was made.
The problem of jurisdiction is key and essential, it’s a sine qua non to an motion. It is because of its significance that it may be raised by events at any stage of the case and even for the primary time on enchantment earlier than an appellate Courtroom. Jurisdiction is like what blood is in human physique as a result of with out blood the organs of the physique can’t perform in any respect.
Additionally, the place a Courtroom lacks jurisdiction, regardless of how properly the trial was carried out, the trial can be a nullity. Put in different phrases, the existence or absence of jurisdiction goes to the very root of the matter in order to maintain or nullify the Courtroom?s choice or order in respect of the related subject material.
See the next circumstances:-
– ALHAJI SAIDU ABDULSALAM VS
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ALHAJI ABDULRAHEEM SALAM (2002) 6 SCNJ Web page 388;
– ELABANJO VS DAWODU (2006) 6 SCNJ Web page 204;
– JOHN EBHODAGHE VS CHIEF OMOKHAFE (2004) 12 SCNJ Web page 106.
It’s also essential to stress {that a} Courtroom can solely assume jurisdiction when a go well with is correctly initiated earlier than it.
In MADUKOLU AND ORS VS NKEMDILIM (1962) LPELR ? 24023 (SC), it was held amongst others as follows:-
A Courtroom is competent when (1) it’s correctly constituted as regards numbers and qualification of the members on the bench, and no member is disqualified for one purpose or one other.
(2) the subject material of the case is inside its jurisdiction, and there’s no function within the case which prevents the Courtroom from exercising its jurisdiction, and
(3) the case comes earlier than the Courtroom initiated by due strategy of regulation, and upon success of any situation precedent to the train of jurisdiction. Any defect in competence is deadly, for the proceedings are a nullity nevertheless properly carried out and determined: the defect is extrinsic to the adjudication.
Part 38 of the Edo State Income Administration Legislation 2012 states as follows:-
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?38 (1) However the ability conferred on the related income authority for the enforcement of fee of income, if fee has turn into due and a requirement discover has, in accordance with the provisions of the related regulation, been served on the chargeable individual or his agent, and fee is just not made throughout the time restricted by the demand discover, the inner Income Service or different related income authority might for the aim of implementing fee of the quantity due, distrain:
(a) upon the products, chattels or different properties movable or immovable, of the individual liable to pay tax excellent; and
(b) upon all equipment, plant, instruments, automobiles, animals and results within the possession, use or discovered on the premises or on the land of the individual.
(2) The authority to distrain below this part shall be in such type because the related income authority might direct and that authority shall be ample warrant and authority to levy by distrain the quantity of income.
(3) For the aim of levying and distrain, below this part, an officer duly approved by the Chairman might apply to a Decide of the State Excessive Courtroom in Chambers below oath for the problem of a
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warrant below the part.
(4) A Decide of the Excessive Courtroom in Chambers might authorize such officer, referred to in Subsection (3) of this part, in writing to execute any warrant of distrain and, if mandatory, break open any constructing or place within the daytime for the aim of levying such distrain and he might name to his help any police officer and it shall be the obligation of any police officer, when so required to help and help within the execution of any warrant of distrain and in levying the distrain.
(5) Issues distrained below this Part might, on the expense of the defaulter, be saved for fourteen days and if on the finish of this era, the quantity due in respect of the income, price and fees of, and incident to the distrain should not paid; they might, topic to Sub-Part (6) of this Part, be bought at any time.
(6) Out of the proceeds of a sale below this Part, the price or fees of and incidental to the sale and conserving of the distrain and disposal there below, shall be paid hereafter the quantity of income due, and the stability (if any shall be payable to the defaulter on demand being made by him or on his behalf inside one yr of
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the date of the sale or shall be forfeited.
(7) Nothing on this Part shall be construed as to authorize the sale of an immovable property with out an order of a Excessive Courtroom, made upon software in such type as could also be prescribed by the principles of Courtroom.
(8) In train of the powers of distrain conferred by this Part, the individual to whom the authority is granted below Sub-Part (4) of this Part, might distrain upon all items, chattels and results belonging to the debtor wherever the identical could also be present in Nigeria.
A cautious perusal of Part 38 of the Edo State Income Administration Legislation 2012 set out above would reveal that there isn’t a provision for ex-parte proceedings to determine the legal responsibility towards the Appellant on this enchantment with out placing him on discover of his legal responsibility.
?I’m of the view that the resort to the usage of ex-parte proceedings to order a distraining order on the Appellant?s property was an order made not solely with out jurisdiction in that the enabling regulation didn’t prescribe that legal responsibility for Land Use Fees will be initiated by the ex-parte proceedings and legal responsibility be secured on the one sided software however
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additionally a transparent violation of the Appellant?s proper to truthful listening to because the regulation offers him a proper to be heard.
The Courtroom beneath had no jurisdiction in any respect to determine this case on an ex-parte continuing. It’s because the Edo State Income Administration Legislation (2012) (ESRAL) made provisions for the resort to the usage of the relevant Excessive Courtroom (Civil Process) Guidelines within the enforcement of the legal responsibility below the income regime.
Moreover, a cautious perusal of Part 38 (3) of the ESRAL would reveal that earlier than an software is made to the Decide because it occurred on this case, the officer making the appliance have to be duly approved by the Chairman of the Board and never the Board. The affidavit in assist of the appliance on the decrease Courtroom didn’t state that the Chairman approved the deponent, it merely mentioned the Board i.e. the Applicant approved him.
?The place of the regulation is that the place the regulation requires the success of a pre-condition earlier than a selected act or motion is to be finished, non-fulfillment of such a precondition might be prejudicial to the defaulting get together.
See the next circumstances:-
– PLATEAU CONST. LTD VS AWARE (Supra);
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– AINA VS JINADU (Supra);
– C.C.B. NIG LTD VS A.G. ANAMBRA STATE (Supra).
As I mentioned earlier on this Judgment, the Appellant should be placed on discover, it’s because a mixed studying of Part 38(7) of the Edo State Income Administration Legislation 2012 and Order 37 of the Excessive Courtroom (Civil Process) Guidelines which stipulates that besides in circumstances of actual urgency, each software have to be on discover.
See ? ORDER Three RULE 1, ORDER 36 RULE 1(3) AND ORDER 37 RULE 6 OF THE EDO STATE HIGH COURT (CIVIL PROCEDURE) RULES AND INDEPENDENT TELEVISION/RADIO VS EDO STATE BOARD OF INTERNAL REVENUE (2015) 12 NWLR Half 1474 Web page 442 at 465 paragraphs G ? H.
By advantage of Order 37 Rule 6 of the Edo State Excessive Courtroom (Civil Process) Guidelines, a movement ex-parte shall be supported by an affidavit which shall state ample grounds why delay in granting the order sought would entail irreparable harm to the get together shifting it.
The Courtroom if glad that to delay the appliance until after discover is given to the events affected will entail irreparable harm to the individual shifting it or that it’s inconceivable to serve the events affected
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inside 7 days might hear the appliance ex-parte and make an order as to price or in any other case and topic to such affordable undertakings because the justice of the case calls for.
On this case, there was no endeavor by the Applicant on the Courtroom beneath.
Consequent upon the foregoing, I’m of the view that the resort to the usage of ex-parte proceedings to order a distraining order on the Appellant?s property is just not solely a transparent violation of the Appellant?s proper to truthful listening to however an order handed down with out jurisdiction in that due strategy of regulation was not adopted by the Respondent within the initiation of the continuing resulting in this enchantment.
See the next circumstances:-
– NNPC VS SELE (2013) 219 LRCN Web page 1 at 23 FL;
– DUKE VS GOVERNMENT OF CROSS-RIVER STATE (2013) Quantity 222 Half 1 Web page 90 at 109 KU, 109 U and 114 KEE;
– PROVISIONAL LIQUIDATION TAPP. IND. LTD VS TAPP. IND. LTD (1995) 5 NWLR Half 393 Web page 9 at 37 ? 38 paragraphs H ? B;
– OKANKA VS SAMUEL (2013) 222 LRCN Half ? 2 Web page 141 at 166 KJ.
?This Concern No. 2 is due to this fact resolved in favour of the Appellant and towards the Respondent.
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Within the end result, with the decision of points for dedication on this enchantment in favour of the Appellant and towards the Respondent, it’s my view that there’s benefit on this enchantment and it’s allowed.
The Ruling of the decrease Courtroom delivered on 20/10/2015 in Go well with No ? B/RC/113/2015 ? EDO STATE BOARD OF INTERNAL REVENUE VS CHIEF G.O. IGBINEDION is hereby put aside.
As a replacement, the appliance of the Respondent on the decrease Courtroom is hereby dismissed.
Every of the events are to bear their very own prices.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My realized brother J. O. BADA JCA, availed me the privilege of a previous perusal of the thorough judgment simply delivered. His Lordship has adequately handled the problems in rivalry and I agree solely with the reasoning and conclusion contained therein.
I additionally maintain that the enchantment has benefit and it’s hereby allowed. I abide by the consequential orders within the main judgment together with order as to prices.
MOORE ASEIMO A. ADUMEIN, J.C.A.: I had a preview of the judgment of my realized brother, Jimi Olukayode Bada, JCA, simply delivered.
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His Lordship has comprehensively handled the problems on this enchantment. I agree with the choice of my realized brother.
For the frilly causes given by my realized brother, I additionally permit this enchantment for being meritorious.
?I abide by all of the orders contained within the main judgment, together with the order as to prices.
24
Appearances
CHIEF A. O. EGHOBAMIEN SAN with him is P.W. AKUEN ESQFor Appellant
AND
MR. O. Ok. ODABI (Assistant Director Edo State Ministry of Justice) with him is O. ESEKHAIGBE Authorized Officer Edo State (Income)For Respondent
