INCORPORATED TRUSTEES OF ASSOCIATION OF HOUSE OWNERS AND RESIDENTS, ABA NGWA & ORS v. HON. CHIEF JUDGE OF ABIA STATE & ORS (2019)

INCORPORATED TRUSTEES OF ASSOCIATION OF HOUSE OWNERS AND RESIDENTS, ABA NGWA & ORS v. HON. CHIEF JUDGE OF ABIA STATE & ORS

(2019)LCN/12972(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/OW/199/2016

RATIO

JUDICIAL REVIEW: WHICH COURT HAS THE POWER TO CARRY OUT A JUDICIAL REVIEW

On that same authority, this Court has no power to review any judgment by a Court of co-ordinate jurisdiction as that is the exclusive preserve of an Appellate Court.PER ITA GEORGE MBABA, J.C.A.

JURISDICTION: THE CLAIM OF THE PLAINTIFF IS IMPORTANT IN DETERMINING WHETHER OR NOT A COURT HAS JURISDICTION

In considering whether a Court has jurisdiction to entertain a Suit, it has to premise its decision on the claim brought by the Plaintiff, by considering his writ of Summons and Pleadings (the originating Summons and grounds/affidavit of the Plaintiff) not the anticipated defence by the Defendant! See the case of Inakoju Vs Adeleke (2007) Vol. 143 LRCN 1; (2007) LPELR ? 1510 SC; Ladejobi Vs Shodipo (1989) 1 NWLR (Pt.99); See also Customary Court of Appeal, Edo State Vs Aguele & Ors (2017) 44632 SC; and Emejuru & Anor Vs Abraham & Ors (2018) LPELR 46330 SC; where it was held:
When issue of jurisdiction is raised in proceedings, the Court must carefully refer to the writ of Summons and statement of claim to ascertain whether it has jurisdiction to entertain, hear and determine the claim filed before it. See Adeyemi Vs Opeyori (1976) 10 SC 31 and Aremo Vs Adekanye (2004) 13 NWLR (Pt.891) 572.PER ITA GEORGE MBABA, J.C.A.

JURISDICTION: WHAT A COURT MUST DO WHEN IT DISCOVERS THAT IT LACKS JURISDICTION

It further compounded the error by dismissing the case of the Appellants, even after stating that, it had no jurisdiction! When a Court lacks the requisite jurisdiction to hear a Case, the appropriate order it can make, is that of striking out of the Suit, not dismissal, having not determined the merits of the case. See Dangana & Anor Vs Usman & Ors (2012) LPELR 7827 SC; Saleh Vs Monguno (2003) 1 NWLR (Pt.801) 221; Okafor Vs Nnaife (1973) 1 ALL NLR (Pt.1) 238.PER ITA GEORGE MBABA, J.C.A.

WHETHER THE COURT OF APPEAL CAN DECIDE THE MERITS OF A SUIT BEFORE THE TRIAL COURT PURSUANT TO SECTION 16 OF THE COURT OF APPEAL ACT

Can this Court decide the merits of the Suit before the trial Court, pursuant to Section 16 of the Court of Appeal Act, 2004?

My answer to the above is in the affirmative, particularly as this case was fought on affidavit evidence, being an originating summons wherein the questions, reliefs, issues are fought on affidavit evidence, with exhibits already before the trial Court. And the trial Court had even made the relevant findings before it, before it slipped into error.PER 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

1. INCORPORATED TRUSTEES OF ASSOCIATION OF HOUSE OWNERS AND RESIDENTS, ABA NGWA
(for and on behalf of members of Ass. of house owners and residents, Aba Ngwa)
2. ENG. AUSTIN ABANEME
3. MR. OBI PAUL
4. MR. MARTAIN MBONU
5. JOSHUA EKWURIBE Appellant(s)

AND

1. HON. CHIEF JUDGE OF ABIA STATE
2. ADIELE OGBONNA
(Senior Mag. sitting as Mobile Revenue Court to enforce compliance to Abia State of Nig. Physical Planning & Infrastructural Dev. Fund Law)
3. L.U. OKITE
(Chief Mag. sitting as Mobile Revenue Court to enforce compliance to Abia State of Nigeria Physical Planning & Infrastructural Development Fund Law)
4. ATTORNEY GENERAL OF ABIA STATE
5. THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVE. FUND LAW OF ABIA STATE
6. COMMISSIONER OF POLICE, ABIA STATE Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Abia State High Court, in Suit No. A/117/2015, delivered on 9th May, 2016 by Hon. Justice C.C. Onyeabor, wherein his Lordship dismissed the claim of the Plaintiffs (now Appellants) for want of jurisdiction.

At the Lower Court, Appellant by Originating Summons posed the following questions, on 4/11/2015, for determination:
(1) Whether by virtue of Judgment of C.C.T. Adiele, in Suit No. A/243/2012, MRS PAMELA NKIRU NWAUGO & 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS, delivered on 3/3/2014, declaring the establishment of Mobile Revenue Courts by the Hon. Chief Judge of Abia State vide ?Designation of Revenue (special) Court Order for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, null, void and of no effect, the 1st Respondent can establish Mobile Revenue Courts and appoint the 2nd and 3rd Respondents

to preside over the said Courts for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010, as amended, when the said Judgment is subsisting and has not been set aside by an Appellate Court.
(2) Whether the 2nd and 3rd Respondents can sit as Mobile Revenue Courts by virtue of Section 19 of Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended and Designation of Revenue (special) Court Order made pursuant to Section 19 of the said Abia State Law, and issue Summons to command the Claimants or members to answer to Charge bordering on compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended when the said sections have been declared contrary to 1999 Constitution as amended, hence null and void.
(3) Whether the 5th Respondent can in the face of Judgment in Suit No. A/243/2012? demand from the claimants or member?s fees designed as Infrastructural

Development Fund by virtue of their ownership and occupation of tenements in Abia State, when the 5th Defendant is the 1st Defendant in the said Suit of which the said Judgment is subsisting and has not been set aside by an Appellate Court.
(4) Whether the 6th Respondent can validly obey any Order of the 2nd and 3rd Respondents requiring him to arrest or detain the claimants or members to stand trial for failure to comply with the provisions of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, when the said Law has been declared null and void by a Court of competent jurisdiction.
(5) Whether the claimants, or members can lawfully obey summons issued by the 2nd and 3rd Respondents, requiring them to submit to trial for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, when the said law has been set aside and the Order establishing the 2nd and 3rd Respondents as Revenue Courts to sit

and issue Summons to compel the claimants to appear before them has been declared null, void and of no effect.?
They sought the following reliefs:
(1) A declaration that the establishment of Mobile Revenue Courts and subsequent appointment of the 2nd and 3rd Respondents or any other person to man the said Revenue Courts to enforce compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law is null, void and otiose.
(2) A declaration that the judgment in Suit No. A/243/2012, MRS PAMELA NKIRU NWAUGO & 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS is binding on the 1st and 5th Respondents in this Suit, same having not been set aside by an Appellate Court.
(3) A declaration of the Hon. Court that it is unlawful for the 5th Respondent to demand from the claimants or any of their members to comply with Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended to pay a

fee known as Physical Planning and Infrastructural Development fee payable by every property owner and/or occupier, by virtue of their occupation or ownership of tenements in Abia State, in view of Judgment in Suit No. A/243/2012 and Constitution of Federal Republic of Nigeria, as amended.
(4) A declaration that Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010, as amended by the Abia State of Nigeria Physical Planning Infrastructural Development Fund (Amendment) Law 2012, are contrary to 1999 Constitution of the Federal Republic of Nigeria as amended and Section 1 and Schedule thereto of the Taxes and Levies (Approved List for Collection) Act, CAP T2 Laws of the Federation, 2004.
(5) Perpetual injunction restraining the 2nd and 3rd Respondents from summoning the claimants or sitting (sic) arraign the claimants or members on account of the existence of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010, as amended.

(6) Perpetual injunction restraining the 5th and 6th Respondents by themselves, agents, privies, servants, howsoever, from demanding, inviting, harassing, arresting or detaining the claimants or members on account of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.
(7) An Order setting aside Summons in Charge Nos. MAN/AB/INF/3166/015, MAN/AB/INF/1096/015, MAN/AB/INF/4856/015 and MAN/AB/INF/1094/2015, issued by the 2nd Respondent, against 2nd ? 5th claimants and other similar Summons issued against members of the 1st Claimant.

The application/claims was supported by grounds and affidavit of facts, exhibits and a written address. (See pages 2 -91 of the Records of Appeal). They also filed a Motion on Notice on 7/12/15, seeking some restraining orders, including restraint against arrest, harassment of the Appellants and/or trying them on charges earlier mentioned in this case, bordering, touching or concerning any question arising from non-payment of Physical Planning and Infrastructural Development Fund by Appellants.

The Respondents had filed a Memorandum of Appearance in the case (pages 92 to 93 of the Records). But when the case was called on 21/12/15, the Respondents? Counsel was absent in Court and the matter was adjourned to 7/12/15 for definite hearing of the Motion on Notice filed by the claimants. The Respondents also filed a motion to withdraw their Memorandum of Appearance, and sought for extension of time to file another Memorandum of Appearance, which application was granted on 1/2/2016. The Respondents also filed a Counter affidavit, opposing the Originating Summons, which prompted the Appellants to file a Further Affidavit (See pages 116 to 157 of the Records of Appeal).

The main Suit was heard on 18/2/2016, when Appellants? Counsel argued the Originating Summons, and the Respondents? written address was deemed duly argued by the Court, as Chibuzor Esq., learned Counsel for Respondents, was absent and had written to the Court and adopted his said written address (pages 194 ? 196 of the Records). Delivering the judgment on 9/5/16, the learned trial judge held:
The Claimants, by the said questions for determination herein seeks this Court

to affirm or uphold the judgment in suit No. A/243/2012 and this will mean as against any other judgment to the contrary given by any other Court in the State on the same issues for the reason that the said judgment has not been set aside by an Appellate Court. There is no evidence before this Court to show that the other judgments in Suit No.A/312/2007 and Suit No.A/316/2016 have been set aside, either, by an Appellate Court, so that all three judgments are valid and subsisting. I am not unaware of the brilliant, submissions of the Claimants? Counsel in seeking to distinguish the said judgments cited by the Defendants, to show they are not in conflict with the judgment in suit No.A/243/2012, but I am of the firm view that it is not for a Court of co-ordinate jurisdiction such as this Court to sit over the decision of another Judge of coordinate jurisdiction.
See Adeyemi-Bero Vs Omotosho (2008)52 WRN 134 cited by the claimants? Counsel. On the same authority, this Court has no power to review any judgment by a Court of co-ordinate jurisdiction as that is the exclusive preserve of an Appellant Court.
The claimants, from the way their

questions are couched, require this Court to review, affirm, uphold and apply the said judgment in suit No. A/243/2012 as there would be no requirement for this Court to reach a decision of its own accord, whereas all the said three judgments of A/243/2012, A/312/2007, A/310/2013 are merely persuasive and not binding at all on this Court or indeed on any Court sitting as a High Court of this State. The slight distinction in Adeyemi-Bero Vs Omotosho (supra) was that there were conflicting findings of two judges of co-ordinate jurisdiction in respect of the same case.
Had the present originating summons been brought before a Court for its determination, with any judgments sought to be relied on, referred to in the written Address of Counsel, that would have been more appropriate. It is my view that this Court cannot be properly called upon to determine the issues before it only in the light of the said judgment of suit No. A/243/2012 or indeed any judgment of a Court of coordinate jurisdiction. In the same way I have no power to review, affirm and uphold any such judgment of a concurrent jurisdiction so as to apply same to the given set of facts or

questions before me. I do not also have the power to, by inference vary, or by effect, set aside the order of another Judge of concurrent and co-ordinate jurisdiction, in the absence of any statutory authority to do so, having not also found that any of the said Judgments referred to and relied on in this case before this Court, is a nullity or has been set aside by an appellate Court. All the said judgments of a Court of competent jurisdiction remain valid and effective, unless set aside by an Appeal Court or by that Court itself, if it found it acted without jurisdiction. See Witt & Busch Ltd Vs Dale Power Systems Plc (2008) Vol. 157 LRCN 62. I cannot therefore find for the claimants in the given circumstances, based on all the foregoing. The claimants? case is thus dismissed.? See pages 209 to 210 of the Records of Appeal.

Peeved by that decision, Appellants appealed, and filed their Amended Notice of Appeal on 12/12/17, with the leave of this Court, granted on 4/12/17 and disclosed 5 grounds of Appeal. They filed their Brief of arguments on 6/10/17 (which was also deemed duly filed on 4/12/17) and donated 4 (four) issues for the

determination of the Appeal, namely:
1) Whether the questions for determination couched in the originating summons ousted the powers of the trial Court from determining the questions before him (sic) to arrive at a valid judgment.
2) Whether the questions and reliefs sought by the Appellants at lower Court amounted to a review of the judgment in Suit No. A/243/2012 or any High Court Judgment.
3) Whether the appellants were given a fair hearing by the trial judge
4) Whether the Court of Appeal can rehear this matter and answer, whether the Respondents are bound by the judgment of 3/3/2014 in Suit No.A/243/2012 and whether Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law 2010, as amended, is contrary to 1999 Constitution as amended and Taxes and Levies (Approved List for Collection) Act 2004.

The Respondent filed a preliminary objection, which they raised and argued in the Respondents? Brief, filed on 11/4/2018, and which was deemed duly filed, on 26/6/18. They adopted the issues for the determination of the appeal as distilled by Appellants. Appellants filed a Reply Brief on the 23/4/18.<br< p=””

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However, at the hearing of this appeal, on 11/3/2019, the Respondents did not raise or argue their said preliminary objection, blaming it on oversight. The said preliminary objection is, accordingly, deemed abandoned and struck out. See the case of CA/OW/396/2013: Eze Innocent C. Ezeala & Ors Vs Chief Ahamefula Ugah & Ors, delivered on 7/3/19; A.G. Rivers State Vs Ude & Ors (2006) LPELR ? 626 SC; CBN VS Suns & Paddy Int?l Group Nig. Ltd & Ors (2018) LPELR ? 44766 CA, to the effect that, a preliminary objection, which is not argued at the point of taking the appeal is deemed abandoned and should be struck out.

Arguing the appeal, Appellants? Counsel, Victor C. Nwaugo, Esq., on issue 1, answered in the negative, saying that a Court is competent to hear a case, when the subject matter of the case is within the jurisdiction of the Court and there is no features, in the case to prevent the Court from exercising its jurisdiction ?Madukolu Vs Nkemdilim (1962)1 All NLR 587.
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He said that the way the questions for determination were couched in this case did not oust the jurisdiction of the trial Court, and he relied

on Order 3 Rules 7 and 8 of the High Court (Civil Procedure) Rules of Abia State, to say that originating procedure was the apt procedure to initiate the action, since it involved the construction and interpretation of document, written law and instrument made under written law, deed contract or any document, or question of law and without issue of substantial dispute of facts. He relied on Inakoju & Ors Vs Adeleke & Ors (2007) Vol. 143 LRCN 1 at 65 ? 66; Balonwu Vs Obi (2007)5 NWLR (Pt.1028) 488; Osunbade Vs Oyewunmi (2007) All FWLR (Pt.368) 1004.

Counsel referred us to the questions for determination and explained how each called for construing and interpretation whether the 1st, 4th 5th and 6th Respondent were not bound by the judgment of Court in A/243/2012, and whether, in the face of the subsisting judgment, the 2nd and 3rd Respondents could be appointed by 1st Respondent to issue summons and sit and try the Appellants for failure to abide by provisions of law set aside already by the Court in Suit No. A/243/2012.
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Counsel said that the trial Court failed to appreciate the questions for determination and the cause of action,

rather erroneously considered the suit as an invitation to sit to review, affirm or uphold the judgment in A/243/2012 and other judgments of Courts of coordinate jurisdiction. Counsel added that the Appellants? case did not call on the trial Court to construe or interpret any question relating to suit No. A/312/2007 and A/316/2013, and so the trial Court was going outside the confines of the suit of the Appellant, which related only to the Suit No. A/243/2012, to found its decision.

He argued that the law is trite, that a person who knows of a judgment (whether null or otherwise) given against him by a Court of competent jurisdiction, cannot be permitted to disobey it. He relied on the case of Babatunde Vs Olatunji (2000) 75 LRCN 271; and said that a decision of Court, not appealed against, remains valid, binding, subsisting and presumed acceptable by the parties. Hence, the decision in A/243/2012 was binding on the parties therein and on 1st, 4th ? 7th Respondents in this appeal. He relied on the case of Udoh Trading Co. Vs Abere (2001) 87, LRCN 1815, to say that a party who desires to take advantage of the effect of judgment which declared a

law invalid, must first institute an action wherein he would question the validity of such law; he said that the Appellants were properly guided in taking out the originating summons to question the act of the Respondents, in the light of the subsisting judgment in Suit No. A/243/2012, which had not been appealed by Respondents.

On issue 2, whether the reliefs sought by Appellants at the lower Court amounted to a review of judgment in Suit No .A/243/2012, or any High Court Judgment, Counsel answered in the negative. Counsel conceded that judicial review of a case is the function of an appellate Court (Onwuka Vs Maduka (2002)103 LRCN 2267) but added that what the lower Court was called upon to do was not to review the judgment in Suit. No. A/243/2012, but to apply it to determine the issues raised by Appellants in the Suit, at hand (A/117/2016). He said that the Appellants never, by the questions for determination and argument of their Counsel, sought or require the trial Court to review the judgment in Suit No. A/243/2012 or any other judgment of the High Court; that it was the Respondents who made that strange submission and misled the trial Court

Counsel said that the case of Adeyemi-Bero Vs Omotosho (supra), relied upon by the trial Court to base its decision, was inapplicable in this case.

On issue 3, whether Appellants were given fair hearing, Counsel answered in the negative; he said that it is duty of anyone in control of the proceedings, to allow both parties to be heard, and should listen to the point of view of each. He relied on the case of Cross River State Vs Dr. Asan Yong (2013)220 LRCN (Pt.2)1 at 36 ? 37. Counsel said that Appellants were not given fair hearing in that the trial Court raised suo motu that the questions for determination raised by Appellant amounted to a review of the judgment in Suit. No. A/243/2012, without calling on the parties to address it on the same. He relied on IMB Securities Vs Tinubu (2001)91 LRCN 3000 on the need to give parties (counsel) opportunity to address the Court on an issue, raised suo motu by a Court. Counsel added that the breach of fair hearing was compounded, when the trial Court went on to dismiss the suit (not striking out), when it held that Appellant had no jurisdiction to initiate the Suit; he said that, where a case is terminated

for want of jurisdiction, the order to make cannot be dismissal, but striking out. He relied onInakoju & Ors Vs Adeleke & Ors (2007)143 LRCN 1 at 68.

On issue 4, whether this Court can rehear the case and give judgment on its merits, Counsel answered in the affirmative, relying on Section 16 of the Court of Appeal Act, to say that we have all the powers of the trial Court to hear the case and give judgment on the merits. Counsel also relied on Inakoju & Ors Vs Adeleke & Ors (supra); Chief Igiehon Vs Omorogie (1993)2 NWLR (Pt.276) 398.

Counsel argued, again, that the decision of the High Court in Suit No. A/243/2012, delivered on 3/3/2014, was binding on the parties and so the questions posed by Appellants for determination in the originating summons, must be answered, in favour of the Appellants, since the Court in Suit No. A/243/2012, had already decided that ?Sections 4, 5, 15, 18, 19, part IV Schedules 1 & 2 of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law and Designation of Revenue (special) Court Order? made for the purpose of enforcing compliance with the said, sections

of the law were null and void and of no effect for being inconsistent with the 1999 Constitution. And that, that Court had also, in that Suit, made an order of injunction restraining the 5th and 6th Respondents in this case, from making demands, arresting or harassing the claimants.” He referred us to pages 9 and 10 of the Records of Appeal (particularly paragraphs 17, 18, 19, 20, 24, and 27 of the Claimants? affidavit) as well as the Exhibit C, on pages 48 ? 49 of Records (the Enrolled order in Suit No. A/243/2012).
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Counsel said that since the Designation of Revenue Court Order, made by the 1st Respondent, designating the 2nd and 3rd Respondents as Revenue Courts, to enforce compliance to the said Abia State Infrastructural Development Law, has been declared null, void and otiose, in a judgment where the 1st Respondent was a party, the 2nd and 3rd Respondents can no longer, validly, and in Law, sit as Revenue, Courts to hear matters arising from failure to comply with the said law, since they are deemed privies of the 1st Respondent. He added that it is the law that the plain and unqualified obligation of every person against or in respect

of whom an Order or judgment of competent Court is made against is to obey it, unless and until that order is discharged, or the judgment is successfully appealed against; that failure to obey Court order is an invitation to lawlessness ? Nigeria Army Vs Gloria Mowari (1992) 4 NWLR (Pt. 235) 345; Mobil Oil Nig Ltd Vs Assan (1995)8 NWLR (Pt. 412) 129; A.G. Anambra State Vs A.G. Federation (2005) 131 LRCN 2357.

On whether Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010, as amended, is contrary to the 1999 Constitution as amended and Taxes and Levies Approved, List for collection Act 2004. Counsel said the Constitution is Supreme Law of the land; that if any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. He relied on A.G. Abia State Vs A.G. Federation (2002)95 LRCN 407. He also referred us to Section 7 of the 1999 Constitution as amended, as to the functions of Local Government, as per the 4th Schedule to the Constitution paragraphs 1 (b), (k) (i) k (iv), to show that Local Government Councils are to

provide and maintain public conveniences, sewage and refuse disposal, registration of all births, deaths and marriages/assessment of privately owned houses, or tenement?s for the purpose of levying such rates as may be prescribed by the house of Assembly of a State, among other functions. Thus, imposition of tax is purely statutory matter and Laws, which impose taxes and penalties, are interpreted, strictly.

Counsel asserted that the Abia State of Nigeria physical planning and Infrastructural Development Fund Law 2010 as amended, was a nullity; that Abia State House of Assembly over-stepped its bounds, as issue of taxation is within the exclusive legislative list, as per Item 59 of the 2nd Schedule, reserved for the National Assembly. He draw inspiration from the case of Cross River State Vs Ojua (2011) All FWLR (Pt. 594) 151 at 169; knight Frank & Rutley Nig. Vs A.G. Kano State (1998)7 NWLR (Pt. 556) 1 at 19.

He argued that the Constitution has distributed taxing and levying powers among the three tiers of government, and referred us to item 59 in the Exclusive legislative list, item D, paragraphs 7 and 8 in the concurrent list in the 2nd

schedule to the Constitution; he aid he said that just as the Constitution empowered the Federal Government to make taxing law for the states, so also did paragraphs 9 and 10 of item ?D? to the 2nd schedule empowered the State House of Assembly to make laws for the Local Government for the collection of any tax, fee or rate and such collection are not for the benefit of the State tier, but for the local government; he said that quite disturbing and contrary to Section 4 and 7 and Schedules 2 and 4 thereto, the said Abia State Law provided in Sections 2,3,4(1) (2) (3) (4), 5, 6, 15(1) (2) (3) (4), 18 (1) (2) (3), 19, 21(b), Schedule 1, that the said law made for the Development of Infrastructural Fund in Abia State and taxes collected by virtue of the law, shall be administered by the 5th Defendant (Respondent) with power to retain 15% of the collected tax, while the Administrator General and the Director of Estate are required to ensure that such taxes are collected from the estates of a deceased, surrendered to him for administration, while no mention was made ?of a Local Government in whose area they were fishing (collecting the

taxes)! He said that any law made in the State which purports to usurp the functions of the Local Government, or transfers the power of collection of taxes, fees levies or rates, provided in Schedule 4 of the Constitution of Nigeria, 1999, as amended, is inconsistent with the Constitution and so null and void. Knight Frank Rutley Nig. Vs A.G. Kano State (supra).
Counsel urged us to resolve the issues for Appellant and to allow the Appeal.

Responding, the Respondents? Counsel, Okeoma P. Chibuzo Esq, answered issue one in the affirmative and referred us to the case of Akindele Vs Abiodun (2010) All FWLR (Pt.518) 894, as to when a Court is seised of jurisdiction to hear a case, and added that the three conditions stated therein were not present in this case. Counsel said in this case the trial Court, being of concurrent jurisdiction with the Court that gave judgment in Suit No. A/243/2012, could not entertain the reliefs sought by Appellants; that to do so would tantamount to sitting on appeal over the said judgment; that the trial Court was right to decline jurisdiction to entertain the suit of the Appellants, especially as the trial Court also

took judicial notice of the decisions in Suits No. A/312/2007 and A/316/2013;he said that the Court was entitled or permitted to take judicial notice of those judgments in A/312/2007 and A/316/2012.

On issue 2, whether the question and reliefs sought in the suit at hand amounted to a call to review the judgment in Suit No. A/243/2012 or any other High Court judgment, Counsel answered in the affirmative, saying that the way the questions for determination and the reliefs sought were couched, that conclusion was obvious.

On issue 3, whether Appellants were given fair hearing by the trial Court, Counsel answered in the affirmative. He said that, there is no need to call on parties to address the Court, when a judge raises an issue suomotu, and where the issue: (i) relates to the Court?s own jurisdiction and (ii) both parties are/were not aware of, or ignored a statute which may have bearing on the case. That is to say, where by virtue of statutory provisions, the judge is expected to take judiciary notice (of the) Order. See Section 73 of the Evidence Act; (iii) when on the face of the record, serious questions of fairness of the proceedings is evident.

He relied on the case of First Zenith Holdings Ltd Vs. H.E.P. Engineering Nig. Ltd (2017) All FWLR (Pt. 881) 1158 at 1179, and said that the issue raised by the trial judge, suomotu, touched on jurisdiction; that it was correct for the trial Court to dismiss the suit, instead of striking it out, since the parties had joined issues at the trial.

On issue 4, whether the Court of Appeal can rehear the case and do what the trial Court could have done, Counsel answered in the affirmative, but stated the circumstances under which that can be done, and the factors that must exist before the Section 16 of the Court of Appeal Act, namely:
1) The question must be a ground of appeal;
2) The High Court from which the matter emanates, must have jurisdiction in the matter
3) Availability of the necessary materials to consider and adjudicate in the matter
4) The length of time between the disposal of the action at the trial Court and the hearing of the appeal.
5) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing, and the hardship such an

order would cause either or both parties in the case.

Counsel relied on the case of Ezeigwe Vs Nwawulu (2010) All FWLR (Pt.518) 794 at 837 and said that this Court cannot apply Section 16 of the Court of Appeal Act to this case, because the High Court from which the case emanated declined jurisdiction to hear the case. Thus, this Court cannot also hear the case under Section 16 of the Court of Appeal Act.
He urged us to resolve the issues against Appellants and to dismiss the appeal.

In his Reply Brief, Appellants, on the Respondents argument that the trial Court merely took Judicial Notice of the judgments in Suits Nos. A/312/2007 and A/316/20013, Counsel said that in determining the issue of jurisdiction of the Court, the Court process to be used is the pleadings of the plaintiff, which in the case of originating summons, would be the originating summons, grounds in support of same and the affidavit thereof. He relied on NDIC Vs CBN (2002)8 WRN1; INAKOJU and Ors Vs ADELEKE (supra); that the Court does not consider the case of the defendant to determine jurisdiction.
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On the argument of Respondents, that this Court can only rehear a case

under Section 16 of this Court?s Act, if the interest of justice will be better served, Counsel supported it by citing the decision of this Court in CA/OW/394M/2013: Imo Transport Company Ltd Vs A.G. Abia State & 3 Ors, delivered on 21/11/16, where this Court held:
?Having arrived at the conclusion that the Abia State Physical Planning and Infrastructural Development Fund Law is at variance with both the provisions of the 1999 Constitution (as amended) and the Taxes and Levies (Approved List of Collection) Act, 2004, the Constitution and the Act shall prevail and that the said Abia State Physical Planning and Infrastructural Development Fund Law (as amended) shall to the extent of the inconsistency be void. See Section 1(3) of the 1999 Constitution (as amended). In the result, Sections 4, 6, 8, 10 and 18, of the said Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law are hereby struck down for being inconsistent with the provisions of the Act of National Assembly and the Constitution.?

He urged us to rely on the above decision of this Court and enter judgment for the Appellants.

RESOLUTION OF THE ISSUES
I think the four Issues donated by the Appellants for the determination of this Appeal can be conveniently reviewed into 2, considering the main/live Issues in this Appeal, being:
(1) Whether the trial Court was right and had properly appraised the case of the Appellants (i.e. the questions for determination and the Reliefs sought), when it held that it had no jurisdiction to entertain the same, because the case amounted to its being called upon to review, affirm or uphold the judgment in Suit No. A/243/2012, and other judgments of the High Court ? all of Co-ordinate jurisdiction?
(2) Whether this Court can invoke the Section 16 of the Court of Appeal Act, 2004, to rehear this case and give the judgment the High Court should have given, in the circumstances that this Court holds that the trial Court was wrong to decline jurisdiction?

I have already set out the questions posed and the reliefs sought by the Appellants in the Originating Summons, as follows:
(1) Whether by virtue of Judgment of C.C.T. Adiele, in Suit No. A/243/2012, MRS PAMELA NKIRU NWAUGO & 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND

INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS, delivered on 3/3/2014, declaring the establishment of Mobile Revenue Courts by the Hon. Chief Judge of Abia State vide ?Designation of Revenue (special) Court Order for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended null, void and of no effect, the 1st Respondent can establish Mobile Revenue Courts and appoint the 2nd and 3rd Respondents to preside over the said Courts for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended when the said Judgment is subsisting and has not been set aside by an Appellate Court.
(2) Whether the 2nd and 3rd Respondents can sit as Mobile Revenue Courts by virtue of Section 19 of Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended and Designation of Revenue (special) Court Order made pursuant to Section 19 of the said

Abia State Law, and issue Summons to command the Claimants or members to answer to Charge bordering on compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended when the said sections have been declared contrary to 1999 Constitution as amended, hence null and void.
?(3) Whether the 5th Respondent can in the face of Judgment in Suit No. A/243/2012? demand from the claimants or member?s fees designed as Infrastructural Development Fund by virtue of their ownership and occupation of tenements in Abia State, when the 5th Defendant is the 1st Defendant in the said Suit of which the said Judgment is subsisting and has not been set aside by an Appellate Court.
(4) Whether the 6th Respondent can validly obey any Order of the 2nd and 3rd Respondents requiring him to arrest or detain the claimants or members to stand trial for failure to comply with the provisions of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended,

when the said Law has been declared null and void by a Court of competent jurisdiction.
(5) Whether the claimants, or members can lawfully obey summons issued by the 2nd and 3rd Respondents, requiring them to submit to trial for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, when the said law has been set aside and the Order establishing the 2nd and 3rd Respondents as Revenue Courts to sit and issue Summons to compel the claimants to appear before them has been declared null, void and of no effect.?
They sought the following reliefs:
(1) A declaration that the establishment of Mobile Revenue Courts and subsequent appointment of the 2nd and 3rd Respondents or any other person to man the said Revenue Courts to enforce compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law is null, void and otiose.
(2) A declaration that the judgment in Suit No. A/243/2012, MRS PAMELA NKIRU NWAUGO

& 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS is binding on the 1st and 5th Respondents in this Suit same having not been set aside by an Appellate Court.
(3) A declaration of the Hon. Court that it is unlawful for the 5th Respondent to demand from the claimants or any of their members to comply with Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended to pay a fee known as Physical Planning and Infrastructural Development fee payable by every property owner and/or occupier, by virtue of their occupation or ownership of tenements in Abia State in view of Judgment in Suit No. A/243/2012 and Constitution of Federal Republic of Nigeria, as amended.
(4) A declaration that Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended by the Abia State of Nigeria Physical Planning Infrastructural Development Fund (Amendment) Law 2012 are contrary to 1999 Constitution of the

Federal Republic of Nigeria as amended and Section 1 and Schedule thereto of the Taxes and Levies (Approved List for Collection) Act, CAP T2 Laws of the Federation, 2004.
(5) Perpetual injunction restraining the 2nd and 3rd Respondents from summoning the claimants or sitting (sic) arraign the claimants or members on account of the existence of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.
(6) Perpetual injunction restraining the 5th and 6th Respondents by themselves, agents, privies, servants, howsoever, from demanding, inviting, harassing, arresting or detaining the claimants or members on account of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.
(7) An Order setting aside Summons in Charge Nos. MAN/AB/INF/3166/015, MAN/AB/INF/1096/015, MAN/AB/INF/4856/015 and MAN/AB/INF/1094/2015 issued by the 2nd Respondent, against 2nd ? 5th claimants and other similar Summons issued against members of the 1st Claimant.

A simple and clear understanding of the above would indicate that what concerned the Appellants in the Suit appeared to be:
(1) Whether 1st Respondent can establish Mobile Revenue Courts and appoint the 2nd and 3rd Respondents to preside over the said Courts for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010, as amended, when a competent Court in Suit No. A/243/2012 had already held on 3/3/2014 that the said sections of the Abia State Law were null and void, for conflicting with the provisions of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and with the Taxes and Levies (Approved List of Collection) Act, 2004, the said judgment (in Suit No. A/243/12) being subsisting and has not been appealed against.
(2) Whether in the circumstances of the question 1 (above), the 2nd and 3rd Respondents can sit as Mobile Courts by virtue of the said Section 19 of the said Abia State Law, and issue summons against the Appellants, bordering on charges on non-compliance with the Sections

4, 5, 15, 18,19 and Part IV Schedules I and II of the said Abia State Law.
(3) Whether the 5th Respondent can, in the face of the said Judgment in A/243/2012, demand from the Appellants fees, designated as Infrastructural Development Fund, by virtue of their ownership and occupation of tenements in Abia State, the said 5th Respondent having been a party and the 1st Defendant in the said Suit No. A/243/2012.
(4) Whether the 6th Respondent can validly obey any order of 2nd and 3rd Respondents to arrest or detain the Appellants for failure to comply with the said voided sections of the said Abia State law; and
(5) Whether the Appellants can obey such summons issued by the 2nd and 3rd Respondents, pursuant to the enforcement of compliance to the said voided provisions of the said Abia State Law.

Appellants then sought declarations to nullify the act of the 1st Respondent creating the 2nd and 3rd Respondents, and the sittings of the 2nd and 3rd Respondents, as well as the summons, issued pursuant to the voided provisions of the said Abia State Physical Planning and Infrastructural Development Fund Law, 2010, as amended, since the judgment

in Suit No. A/243/2012, which nullified and voided those sections/provisions of the said Abia State Law, was extant and binding.

I think all that the trial Court needed to do, in the circumstances of this case, to come to a just determination of the issues, was to satisfy itself that:
(1) There was the said judgment in Suit No. A/243/2012, delivered on 3/3/2014, on the subject matter, nullifying and voiding the Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, and that the said judgment was extant and binding;
(2) That the allegations raised by the Appellants about 1st Respondent, establishing Mobile Courts to be presided by the 2nd and 3rd Respondents, to enforce compliance with the said Sections/Provisions of the said Abia State Law, were true and correct and;
(3) That Appellants were at the risk of being affected/afflicted by the implementation or operation of the said Mobile Courts, subjecting Appellants to trial, contrary to the extant decision of the High Court in Suit No. A/243/2012.

The learned trial Court had actually found, as a fact, that there was such judgment in A/243/2012, delivered on 3/3/14, and that the said judgment was extant, and on the said issues raised by the Appellants (though it also mixed-up and was confused by the pendency of the said Suit No. A/243/2012 and other Suits raised by Respondents – namely A/312/2007 and A/316/2013!) But the trial Court, in my opinion, slipped and erred, the moment it thought and considered that it was called upon to review, affirm or uphold the decision in Suit No. A/243/2012! It held:
?It is clear that this Court is called upon to determine the said questioned in the light of the said judgment in Suit No. A/243/2012 MRS PAMELA NKIRU NWAUGO & 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS. The said judgment is also cited and relied on in the Reliefs of the Claimants. Also before the Court is an earlier judgment in Suit No. A/312/2007 IKE OGBUEHI & ORS VS ABIA STATE ENVIRONMENTAL PROTECTION AGENCY & 3 ORS as well as the said latter judgment in Suit No. A/316/2013 PAXSON NIGERIA COMPANY LTD VS THE BOARD OF TRUSTEES OF

PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND (THE BOARD) 2. ATTORNEY GENERAL, ABIA STATE, both cited and relied on by the defence Counsel. All three Judgments speak for themselves. The constitutionality of the said Abia State of Nigeria Physical Planning and infrastructural Development Fund Law, whether in part or all, is in issue, regardless of the various parties to each of the said cases. There is only one High Court in a State? All the said three Judgments were given by the High Court of Abia State.
The Claimants, by the said questions for determination, herein, seek this Court to affirm or uphold the judgment in Suit No. A/243/2012 and this will mean as against any other Judgment to the contrary given by any other Court in the State on the same issues for the reason that the said judgment has not been set side by an Appellate Court. There is no evidence before this Court to show that the other Judgments in Suit No. A/312/2007 and Suit No. A/316/2013 haven been set aside either, by an Appellate Court, so that all three Judgments are valid and subsisting.
I am not unaware of the brilliant submissions of the Claimants?

Counsel in seeking to distinguish the said judgments cited by the Defendants to show they are not in conflict with the judgment in Suit No. A/243/2012, but I am of the firm view that it is not for a Court of co-ordinate jurisdiction such as this Court, to sit over the decision of another Judge of co-ordinate jurisdiction. See Adeyemi-Bero Vs Omotosho (2008) 52 WRN 134 cited by Claimants? Counsel.?
On that same authority, this Court has no power to review any judgment by a Court of co-ordinate jurisdiction as that is the exclusive preserve of an Appellate Court. The Claimants, from the way their questions are couched, require this Court to review, affirm, uphold and apply the said Judgment in Suit No. A/243/2012 as there would be no requirement for this Court to reach a decision of its own accord, whereas, all the said three judgments of A/243/2012, A/312/2007 and A/316/2013 are merely persuasive and not binding at all on this Court or indeed any Court sitting as a High Court of this State. The slight distinction in Adeyemi-Bero Vs Omotosho (supra) was that there were conflicting findings of two judges of co-ordinate jurisdiction in respect of

the same case? It is my view that this Court cannot be properly called upon to determine the issues before it only in the light of the said Judgment in Suit No. A/243/2012 or indeed any judgment of a Court of co-ordinate jurisdiction.? See pages 208 ? 210 of the Records of Appeal.

That, in my opinion, was where the Learned trial Court slipped, when it took judicial notice of and allowed the Cases thrown up by the Respondents? Counsel ? A/312/2007 and A/316/2013 ? which were not in issue in the claims of the Appellants, to confuse it to decline jurisdiction to consider the claims of Appellants as per the Originating Summons.

The Respondents, in my opinion, had no case before the trial Court, as the Originating process filed by the Appellants, made no room for the Respondents to assert judgments in A/312/2007 and A/316/2013 (even if those judgments were opposed to the decision in A/243/2012), as they (Respondents) raised no Counter-claim or rival Suit for the determination of the Court. Thus, the trial Court was seised of only the Appellants case, wherein the Suit No. A/243/2012 was pleaded as the bench mark on

which to consider the actions of the Respondents, not extraneous judgments smuggled in by the Respondents, to confuse the Court.

In considering whether a Court has jurisdiction to entertain a Suit, it has to premise its decision on the claim brought by the Plaintiff, by considering his writ of Summons and Pleadings (the originating Summons and grounds/affidavit of the Plaintiff) not the anticipated defence by the Defendant! See the case of Inakoju Vs Adeleke (2007) Vol. 143 LRCN 1; (2007) LPELR ? 1510 SC; Ladejobi Vs Shodipo (1989) 1 NWLR (Pt.99); See also Customary Court of Appeal, Edo State Vs Aguele & Ors (2017) 44632 SC; and Emejuru & Anor Vs Abraham & Ors (2018) LPELR ? 46330 SC; where it was held:
When issue of jurisdiction is raised in proceedings, the Court must carefully refer to the writ of Summons and statement of claim to ascertain whether it has jurisdiction to entertain, hear and determine the claim filed before it. See Adeyemi Vs Opeyori (1976) 10 SC 31 and Aremo Vs Adekanye (2004) 13 NWLR (Pt.891) 572.?
The trial Court was therefore in grave error, in my view, when it declined to

hear and consider the case of the Appellants, on the grounds of want of jurisdiction, founded on the strange claim by the defence as per judgments in A/312/2007 and A/316/2013. It further compounded the error by dismissing the case of the Appellants, even after stating that, it had no jurisdiction! When a Court lacks the requisite jurisdiction to hear a Case, the appropriate order it can make, is that of striking out of the Suit, not dismissal, having not determined the merits of the case. See Dangana & Anor Vs Usman & Ors (2012) LPELR ? 7827 SC; Saleh Vs Monguno (2003) 1 NWLR (Pt.801) 221; Okafor Vs Nnaife (1973) 1 ALL NLR (Pt.1) 238.

Can this Court decide the merits of the Suit before the trial Court, pursuant to Section 16 of the Court of Appeal Act, 2004?

I had earlier stated that what the trial Court needed to consider in the case was whether the questions for determination and reliefs sought by Appellants, were grantable in the light of the extant judgment in Suit No. A/243/2012, which had nullified and voided Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.

Appellants had produced the said Judgment in A/243/2012, as per the Court Order thereof, on pages 48 ? 49 of the Records of Appeal, as follows:
?JUDGMENT ORDER?
?Whereas by a Claim dated and filed 9th day of November, 2012 the Claimants commenced this action against the defendants.
Whereas the defendants filed their Counter affidavit on 30th January, 2013, and after evaluation of the written submissions of Victor C. Nwaugo Esq., from the Claimants, and Okeoma P. Chibuzo Esq for the defendants:
IT IS HEREBY ORDERED THAT:
(1) Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended by the Abia State of Nigeria

Physical Planning Infrastructural Development Fund (Amendment) Law 2012 are contrary to 1999 Constitution of the Federal Republic of Nigeria as amended and Section 1 and Schedule thereto of the Taxes and Levies (Approved List for Collection) Act, CAP T2 Laws of the Federation, 2004.
(2) The establishment of Mobile Revenue Courts by the 2nd Defendant vide ?Designation of Revenue (special) Court Order for the purpose of enforcing compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, is null, void and of no effect.
(3) The 3rd Defendant is hereby perpetually restrained from summoning the Claimants or any of them on account of the existence of Sections 4, 5, 15, 18, 19 and Part IV Schedules I & II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law 2010 as amended and or Designation of Revenue (Special) Court Order 2012.
(4) The 1st, 4th, 6th, 7th and 8th Defendants by themselves, agents, privies servants are hereby perpetually restrained from demanding, inviting, harassing,

arresting or detaining the claimants on account of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund (Amendment) Law 2012.”
(See also the full judgment thereof on pages 158 to 183 of the Records of Appeal).

Having therefore held on 3/3/14, that: ?Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended, by the Abia State of Nigeria Physical Planning and Infrastructural Development Fund (Amendment) Law, 2012 are contrary to the 1999 Constitution of the Federal Republic of Nigeria as amended, and Section 1 and Schedule thereto of the Taxes and Levies (Approved List for Collection) Act, Cap T2 Laws of the Federation of Nigeria, 2004?; and that the establishment of the Mobile Revenue Courts vide the said Abia State Law, for the purpose of enforcing compliance with the said voided and nullified Sections/Provisions of the said Abia State Law was null and void and the 3rd Defendant, restrained perpetually from summoning the claimants or any of them

on account of the void provisions of the said law, there was nothing else to be done by learned trial Court in this case A/117/2015, other than giving effect to the extant decision in A/243/2012 and enforcing the same, as it operated, in my opinion, as estoppel in rem, again the Respondents. It is clear that the Suit No.A/243/2012 was on all fours with the present Suit ? A/117/2015.
?
It can be seen that the 1st Respondent in A/243/2012 is the 5th Respondent in this Case, and the 2nd Respondent in A/243/2012 is the 1st Respondent in this Case. In the same way 4th and 5th Respondents in A/243/2012 are the same 4th and 6th Respondents in this Case ? A.G. Abia State and the Commissioner of Police Abia State. The 3rd Respondent in A/243/2012 (a Chief Magistrate) of the Mobile Revenue Court, Abia State is the same as the 2nd and 3rd Respondents (Presiding Chief Magistrates of the Mobile Courts) in this Case. The subject matter and issues are the same ? faulting the same sections/provisions of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law 2010, as amended and the establishment of the Mobile Court by the

Chief Judge of Abia State to enforce the same voided/nullified sections of that law!

What this means, is that, despite the decision reached on 3/3/2014 in A/243/2012, on the issues, nullifying and voiding the said Sections/Provisions of the said Abia State Law, the 1st, 2nd and 3rd Respondents in this case, still pressed on to pursue the enforcement and implementation of their ill-fated and nullified government actions, in breach of the said Court order, and contemptuous of the said Judgment in ,2015, going by the claims of the Appellants, taken out on 4/11/2015. That, to me, is very unfortunate, to note that the learned Chief Judge of Abia State 1st (Respondent) and the 2nd and 3rd Respondents (Chief Magistrates) constituted themselves into agents and instruments of vilification and contempt of a competent decision/order of the Court in Suit A/243/2012! Even if the Respondents were aggrieved by the decision in the Suit No. A/243/2012, they had/have a right to appeal against the same, rather than resort to self-help and flagrant disobedience to that decision, and relying on the coercive power of the State to treat the order of Court with contempt and opprobrium! It is, indeed, appalling, in my opinion.

The Appellants had, in their Reply Brief, called our attention to a decision of this Court in CA/OW/394M/2013, delivered on 21/11/2016, which also voided and nullified some sections/provisions the said Abia State Law, as done in A/243/2012. In that case (cited above) this Court held:
?Having arrived at the conclusion that the Abia State Physical Planning and Infrastructural Development Fund Law is at variance with both the provisions of the 1999 Constitution (as amended) and the Taxes and Levies (Approved List of Collection) Act, 2004, the Constitution and the Act shall prevail and that the said Abia State Physical Planning and Infrastructural Development Fund Law (as amended) shall to the extent of the inconsistency be void. See Section 1(3) of the 1999 Constitution (as amended). In the result, Sections 4, 6, 8, 18, of the said Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law are hereby struck down for being inconsistent with the provisions of the Act of National Assembly and the Constitution.?

I therefore find merits in this appeal as I resolve the issues for the Appellants and allow the appeal. Accordingly, I set aside the decision of the trial Court in Suit No. A/117/2015 and in its stead, enter judgment for the Claimants (Appellants herein) as follows:
(1) A declaration that the establishment of Mobile Revenue Courts and subsequent appointment of the 2nd and 3rd Respondents or any other person to man the said Revenue Courts to enforce compliance to Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law is null, void and otiose.
(2) A declaration that the judgment in Suit No. A/243/2012, MRS PAMELA NKIRU NWAUGO & 7 ORS VS THE BOARD OF TRUSTEES OF PHYSICAL PLANNING AND INFRASTRUCTURAL DEVELOPMENT FUND OF ABIA STATE & 7 ORS is binding on the 1st and 5th Respondents in this Suit same having not been set aside by an Appellate Court.
(3) A declaration of the Hon. Court that it is unlawful for the 5th Respondent to demand from the claimants or any of their members to comply with Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.

to pay a fee known as Physical Planning and Infrastructural Development fee payable by every property owner and/or occupier, by virtue of their occupation or ownership of tenements in Abia State in view of Judgment in Suit No. A/243/2012 and Constitution of Federal Republic of Nigeria, as amended.
(4) A declaration that Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended by the Abia State of Nigeria Physical Planning Infrastructural Development Fund (Amendment) Law 2012 are contrary to 1999 Constitution of the Federal Republic of Nigeria as amended and Section 1 and Schedule thereto of the Taxes and Levies (Approved List for Collection) Act, CAP T2 Laws of the Federation, 2004.
(5) Perpetual injunction restraining the 2nd and 3rd Respondents from summoning the claimants or sitting (sic) arraign the claimants or members on account of the existence of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund

Law, 2010 as amended.
(6) Perpetual injunction restraining the 5th and 6th Respondents by themselves, agents, privies, servants, howsoever, from demanding, inviting, harassing, arresting or detaining the claimants or members on account of Sections 4, 5, 15, 18, 19 and Part IV Schedules I and II of the Abia State of Nigeria Physical Planning and Infrastructural Development Fund Law, 2010 as amended.
(7) An Order setting aside Summons in Charge Nos. MAN/AB/INF/3166/015, MAN/AB/INF/1096/015, MAN/AB/INF/4856/015 and MAN/AB/INF/1094/2015 issued by the 2nd Respondent, against 2nd ? 5th claimants and other similar Summons issued against members of the 1st Claimant.
Parties shall bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. It is accordingly allowed by me. I also abide by the order with regard to costs.

Appearances:

Victor C. Nwaugo, Esq.For Appellant(s)

Okeoma P. Chibuzor (Director, Legal Services, Abia State)For Respondent(s)

Appearances

Victor C. Nwaugo, Esq.For Appellant

AND

Okeoma P. Chibuzor (Director, Legal Services, Abia State)For Respondent