CITIBANK NIGERIA LIMITED v. ABIA STATE INTERNAL REVENUE SERVICE
(2018)LCN/12113(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/OW/12/2017
RATIO
COURT AND PROCEDURE: ISSUE FOR DETERMINATION
“See Usman Vs New Nigeria Bank Plc 7 Ors (2013) LPELR – 20404 (CA); Nigerian Agric Co-operative Bank Ltd Vs Ozoemelam (2016) LPELR – 26051 SC. It is also the law that a Respondent has no room to distill issue(s) for determination of appeal outside the ground(s) of appeal formulated by the Appellant, except he (Respondent) had filed a cross-appeal or Respondent’s notice, to accommodate the extraneous or strange issue(s). See Duru vs Duru (2016) LPELR – 40444 CA; Onuegbu & Ors vs Gov. Imo State (2015) LPELR – 25968 CA; Anyalenkeya Vs Anyalenkeya & Ors (2016) LPELR – 40218 CA.” ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDURE: WHERE A LAW HAS BEEN REVOKED
“It cannot be quoted side by side with existing law. A revoked legislation or order has no more force of law from the date of the revocation and a Court cannot by its interpretative jurisdiction revive the revoked legislation because it is moribund or dead from the date of the revocation,” per Tobi, J.S.C., in Olafisoye vs. FRN (2004) 4 NWLR Part 864 page 580 and Adesanoye. Vs. Adewole (2006) LPELR 143 (SC). The trial Court indeed erred and I too allow the appeal and abide by the consequential orders made therein.” ITA GEORGE MBABA, J.C.A.
JUSTICES:
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CITIBANK NIGERIA LIMITED – Appellant(s)
AND
ABIA STATE INTERNAL REVENUE SERVICE – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
On the 19th day of December, 2016, Hon. Justice Onuoha A. K. Ogwe, J, sitting in the Ikwuano Judicial Division of the Abia State High Court, in Suit No. HIK/MISC/11M/2016, delivered Judgment against the Appellant, then Defendant, and in favour of the Respondent, then Applicant.
Piqued by the said judgment the Appellant on the same 19th December, 2016, filed a notice of Appeal containing one ground. With the leave of this Hon. Court the Appellant amended the notice of appeal on 4th May, 2017, maintaining one ground therein.
Without its particulars, the ground reads:-
GROUND NUMBER ONE
The lower Court erred in law when it relied on non-existing statutory provisions in reaching its conclusion that the Appellant’s failure to object to the Respondent’s assessment of its tax liability within a particular period rendered the said assessment final and conclusive.
From this sole ground the Appellant formulated one issue for determination thus:-
Was the lower Court right in law when it based its decision solely on non-existent statutory provisions
On its own part, the Respondent formulated three issues from the single ground of appeal, which run thus: –
1. Whether the mere fact that the trial judge cited a deleted provision of the statute is enough to invalidate the judgment if the principles of law contained in the said judgment are supported by other provisions of the extant Tax laws
2. Whether the judgment of the lower Court is not sustained by relevant applicable provisions of the Tax laws though not cited or relied upon by the lower Court.
3. Whether the mere fact that parties did not Canvass or join issues on the extant provisions of the relevant tax laws makes them inapplicable.
Before proceeding further, I think it is pertinent to summarize the facts of this case. The Abia State Internal Revenue service, as claimant, filed an Originating Motion dated 2nd June, 2016 under Section 39 (3) and (4) of the Abia State Board of Internal Revenue Law No. 7 of 2008(as amended), praying for an order:-
1. Issuing warrant of distress on the premises or other property of the defendant in Abia State for failure to remit the outstanding withholding taxes on interest paid to individual depositors.
2. And for such further or other order as the Court may deem fit to make in the circumstance.”
The motion was supported by a 14-paragraph affidavit to which two exhibits were annexed. It was deposed to by one Onyeabor C. C. who was a Director of Audit and Investigation, Abia State Internal Revenue Service. On being served with the motion the defendant (now Appellant) filed an 18-paragraph counter affidavit deposed to by one ChiomaOlisa-Obi, the Branch Operations Officer of the Appellant’s Aba Branch, exhibiting six annexures.
After some adjournments the lower Court delivered its judgement on the 19th Dec. 2016, which has become the subject matter of this appeal. The learned trial Judge held as follows: –
Immediately Claimant served Exhibit E, the Defendant had no business entering into further correspondence with Claimant.
By Exhibit E, the Defendant knew the final position of the Claimant.
The proper thing or step for the Defendant to take was to appeal to the Body of Appeal Commissioners under Section 60 of PITA. If the State has not set up this Body, the appeal will be made to the High Court under Section 65 (2) of the P.I.T.A. The decision of the Body of Commissioners is appealable to the High Court under Section 65 (1) of PITA. When the Defendant did not do any of this, Exhibit E became final and conclusive under Section 66(1) and (2) of the Act. The effect is that the Defendant has no defence and is obliged to pay as assessed.
I therefore find for the claimant a follows: –
“An order of warrant of distress on the premises or other property of the Defendant in Abia State for failure to remit the sum of N10,865,295.29 to Claimant being the outstanding withholding taxes on interest paid to individual depositors for 2013.”
On 25th Sept. 2018 when this appeal came up for hearing before us S.M. Tsado Esq., learned counsel for the Appellant adopted both the Appellant’s brief and the reply brief filed on 23rd May, 2017 and 8th May, 2018 respectively as their oral argument in this appeal and urged us to allow the appeal. Obike Onyemere Esq., learned Counsel for the Respondent adopted the Respondent’s Brief filed on the 7th November, 2017 and urged us to dismiss the appeal.
Now before I consider the issues and submissions of learned counsel thereon, I will first of all treat the issues of the Respondent in its Brief. It is to be noted that while the Appellant filed one ground of appeal and distilled one issue therefrom, the Respondent in its Respondent’s Brief formulated three issues from the sole ground of appeal.
A careful perusal of the three issues indicates that they do not flow from the ground of appeal. They are also in excess of the ground of appeal filed by the Appellant. It is trite law that issues for determination must flow from the ground(s) of appeal. They also must not be in excess of the ground(s) of appeal. An issue can be distilled from one or a combination of grounds of appeal. Parties are therefore not allowed or permitted to raise issues in excess of the grounds of appeal, be they Appellants or Respondents. Having one issue more than the grounds of appeal is therefore totally not in line with the contemplation of the law relating to formulation of issues for determination in an appeal. This amounts to proliferation of issues which is not acceptable and must be discountenanced. See NWANKWO & ORS. VS. YAR’ADUA &Ors. (2010) LPELR-2109 (S.C) at page 21; UNILORIN Vs. OLUWADARE (2003) 3 NWLR (Pt. 808) 557; PADAWA VS. JATAU (2003) 5 NWLR (Pt. 813) 247 and SOGBESAN VS. OGUNBIYI (2006) 4 NWLR (Pt. 969) 19.
It is also trite that the ideal and acceptable practice is that one issue is distilled from a combination of grounds of appeal. Proliferation of issues should be avoided. See UGO. VS. OBIEKWE (1989) 2 S. C. (Pt. 11) 45. So much for the law.
In the instant case, the Respondent formulated three issues from the sole ground of appeal filed by the Appellant. Apart from being in excess of the ground of appeal they do not flow from the ground of appeal. It is trite that issues for determination in an appeal must flow from the ground(s) of appeal filed by the Appellant. See ADESANOYE VS. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242.
Since I have held that the issues formulated by the Respondent do not flow from and are in excess of the ground of appeal, they deserve to be discountenanced, and are hereby discountenanced. They are consequently struck out and exiting with them are the arguments grounded upon them.
I have now to consider the submissions of the appellant’s counsel. At the risk of repetition, the issue formulated by the Appellant’s Counsel is:-
Was the lower Court right in law when it based its decision solely on non-existent statutory provisions
The learned Appellant’s counsel highlighted the salient part of the decision of the lower Court dealing with the deleted sections of the Personal Income Tax Act 2011 (as amended) and submitted that the judgment of the lower Court was fundamentally flawed, which submission was based on the fact that the Personal Income Tax Act, Cap. P8, Laws of the Federation of Nigeria 2004 was amended in 2011 while the judgment of the lower Court was delivered in 2016. He submitted that by S.15 of the P.I.T. (Amendment) Act 2011, S. 66 of the Act was deleted.
It was further submitted that it is trite Law that once an enactment or statutory provision is revoked or deleted, it is ceases to have any legal effect since, in the eye of the law, it ceases to exist. He relied on the Supreme Court decision in ADESANOYE VS. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242 at 272 para AB.
Appellant’s counsel submitted further that based on the authority of ADESANOYE VS. ADEWOLE (Supra) the lower Court had no jurisdiction to still rely on the deleted S. 66 of the Personal Income Tax Act; that the decision of the lower Court had nothing to stand upon having been based solely on a deleted provision of the law, relying on MCFOY VS. UAC (1962) A. C. 158.
On the decision of the lower Court that the Appellant’s failure to appeal to the Body of Appeal commissioners set up under the Personal Income Tax Act, Cap P8 LFN 2004, robbed the Appellant of the right to complain, it was submitted that this position of the lower Court was flawed as the Body of Appeal Commissioners was abolished by Section 14 of the Personal Income Tax (Amendment) Act, 2011.
Furthermore, it was submitted that the judgment of the lower Court was given per incuriam, relying on ELABANJO VS. DAWODU (2006) 15 NWLR (Pt. 1001) 76; MAKUN VS FUT, MINNA (2011) 18 NWLR (PT. 1278) 190 and EYO VS. OKPA (2010) 6 NWLR (Pt. 1191) 611.
It was concluded by the learned counsel for the appellant that the lower Court erred when it based its decision solely on a non-existent statutory Provision and urged us to allow the appeal and set aside the lower Court’s decision delivered on 19th Dec, 2016.
Having held that the arguments of the Respondent’s counsel had exited with the issue, I need not make any reference to them.
Having summarized the submissions of learned counsel for the appellant, I hereby agree with his submission that the judgment of the lower Court, having been based solely on repealed sections of the law is fundamentally flawed. See ADESANOYE VS. ADEWOLE (SUPRA), where the Supreme Court stated thus:-
Where a subsequent legislation or order revokes an earlier legislation, Courts of law do not have the jurisdiction to still rely on the revoked legislation or order. It is trite law that a revoked legislation or order has no more force of law from the date of the revocation and a Court cannot by interpretative jurisdiction revive the revoked legislation because it is moribund or dead from the date of the revocation. By the doctrine of separation of powers, it is the constitutional function of the legislature to make laws, including amendment and revocation and our duty in the judiciary is to interpret the amendment or revocation to achieve the intention of the legislature. Where the intention of the legislature is clear and unambiguous, Courts of law cannot go outside the legislation in search for greener pastures for one of the parties.”
Therefore, I hold that the judgment of the trial Court based on the deleted Section 66 of the amended Personal Income Tax Act of 2004 Cap. P8 was given per incuriam as it was based on nothing, as it is not possible to put something on nothing. See MCFOY VS. UAC (1962) A. C. 158.
The learned trial Court also held that the Appellant’s failure to appeal to the Body of Appeal Commissioners set up under the Personal Income Tax Act Cap P8 Laws of the Federation 2004, robbed the Appellant of the right to complain against the assessment of the liability. It is to be noted that Section 14 of the Personal Income Tax (Amendment) Act 2011 has abolished the Body of Appeal Commissioners.
Therefore, reliance on this provision by the lower Court renders its decision flawed. See ELABANJO Vs. DAWODU (2006) 15 NWLR (Pt. 1001) 76; MAKUN Vs. FUT, MINNA (2011) 18 NWLR (Pt. 1278) 190.
This Hon. Court has held in Eyo Vs. OKPA (2010) 6 NWLR (Pt. 1191) 611 that a judgement given or entered in error is so flawed and can be set aside even by the same Court which gave it.
In conclusion, I hold that the judgment of the lower Court, having been based solely on repealed or deleted provisions of the Personal Income Tax Act Cap P8 Laws of the Federal Republic of Nigeria 2004, is fundamentally flawed.
Resolving the lone issue in the negative, in favour of the appellants, and against the respondents, I allow this appeal as it is meritorious, and set aside the judgment of the lower Court. I make no order as to cost.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the leading judgment of this Court now delivered by my learned brother, Andenyangtso, J.C.A., and I completely agree with my Lord, that by abrogation of an existing law by legislative act, the repealed law no more has legal life, and as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law. A revoked legislation or order has no more force of law from the date of the revocation and a Court cannot by its interpretative jurisdiction revive the revoked legislation because it is moribund or dead from the date of the revocation,” per Tobi, J.S.C., in Olafisoye vs. FRN (2004) 4 NWLR Part 864 page 580 and Adesanoye. Vs. Adewole (2006) LPELR 143 (SC). The trial Court indeed erred and I too allow the appeal and abide by the consequential orders made therein.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ibrahim Ali Andenyangtso JCA and I agree, completely, with his reasoning and conclusion, that the appeal is meritorious.
I commend my lord greatly for his brevity and yet being so comprehensive and articulate in his succinct identification and treatment of the pertinent issue raised in the appeal.
It is obvious that the trial Judge founded his decision on Sections 65 and 66 of the Personal Income Tax Act, 2004, which had been deleted by the amended law. (See Section 1. 5 of the Personal Income Tax (Amendment) Act, 2011). Thus, the trial Court was basing his decision on a non-existing law. That was an exercise in futility. See the of Adesanoye vs Adewole (2006) 14 NWLR (Pt. 1000) 242, cited and relied upon by Counsel for Appellant and affirmed by my learned brother in the lead judgment; to the effect that a revoked or repealed legislation or order has no more force of law.
I should also add that the Respondents demonstrated gross ignorance in the formulation of issues for determination of the appeal, when they donated three Issues from a single ground of appeal for the determination of the appeal. Whereas, an issue for determination of appeal can be distilled from two or more grounds of appeal, a single ground of appeal cannot be split to distill different issues for determination of Appeal.
See Usman Vs New Nigeria Bank Plc 7 Ors (2013) LPELR – 20404 (CA); Nigerian Agric Co-operative Bank Ltd Vs Ozoemelam (2016) LPELR – 26051 SC.
It is also the law that a Respondent has no room to distill issue(s) for determination of appeal outside the ground(s) of appeal formulated by the Appellant, except he (Respondent) had filed a cross-appeal or Respondent’s notice, to accommodate the extraneous or strange issue(s). See Duru vs Duru (2016) LPELR – 40444 CA; Onuegbu & Ors vs Gov. Imo State (2015) LPELR – 25968 CA; Anyalenkeya Vs Anyalenkeya & Ors (2016) LPELR – 40218 CA.
I too hold that this appeal is meritorious and should be allowed. I abide by the consequential orders in the lead judgment.
Appearances:
S.M. Tsado, Esq. For Appellant(s)
Obike Onyemere, Esq. For Respondent(s)
