MOBIL PRODUCING NIGERIA UNLIMITED v. FIRS (2021)

MOBIL PRODUCING NIGERIA UNLIMITED v. FIRS

(2021)LCN/15074(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/L/997/2018

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

MOBIL PRODUCING NIGERIA UNLIMITED APPELANT(S)

And

FEDERAL INLAND REVENUE SERVICE RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE CHIEF REASON FOR INTERPRETATION OF STATUTE

The chief reason/raison d’etre for interpretation of statute is to discover the intention of the legislature, the law maker, using the words therein as the yardstick, and apply them to the consideration of the matter. See Idehen v. Idehen (1991) 7 SCNJ 196; Olanrewaju v. Governor, Oyo State (1992)11-12 SCNJ 92; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; Gbagbarigha v. Toruemi (2013) 6 NWLR (Pt. 1350) 289; A.-G., Fed. v. A.-G., Lagos State (2013) 16 NWLR (Pt. 1380) 249; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. The use of words as the barometer for interpretation is because “Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.” See A.-G., Bendel State v. A.-G., Fed. (1981) 10 SC 1 at 132/(1982) NCCR at 77, per Obaseki, JSC. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING OF THE EXPRESSION “SUBJECT TO” WHEN USED IN A STATUTE

The import/purport of the use of the phrase “subject to” in a statute was graphically and elaborately, captured by Onnoghen, JSC (later CJN) in FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361, at 429 and 430, in these illuminating words: The expression “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by; provided that or provided; answerable for. The term introduces a condition, a restriction, a limitation, a provision. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. The expression generally implies that what is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision… referred to. See also Oke v. Oke (1974) 1 All NLR (Pt. 1) 443; Idehen v. Idehen (supra); Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554; NDIC v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107; Balonwu v. Gov., Anambra State (2009) 18 NWLR (Pt. 1172) 13; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; Uwaifo v. Uwaifo (2013) 10 NWLR (Pt. 1361) 185; Lovleen Toys Ind. Ltd. v. Komolafe (2013) 14 NWLR (Pt. 1375) 542; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; N.A.O.C. Ltd. v. Nnweke (2016) 7 NWLR (Pt. 1512) 588; BPS Constr. & Engr. Co. Ltd. v. FCDA (2017) 10 NWLR (Pt. 1572) 1; Skye Bank Plc. v. Iwu (2017) 16 NWLR (Pt. 1590) 24; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; G.C.M. Ltd. v. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507. PER OBANDE FESTUS OGBUINYA, J.C.A.

HOW PROVISIONS OF LEGISLATIONS ARE TO BE CONSTRUED

The position of the law is that provisions of legislations are construed holistically in order to garner or reach at the intention of the legislature. That is to say, provisions of enactments are not be subjected to fragmentary interpretation. Thus, mutually-related provisions and sections are married together so as to glean the intent of the law maker. See Oyeniran v. Egbetola (1997) 5 SCNJ 94; Matari v. Dangaladima (1993) 2 SCNJ 122; A-G., Fed. v. A-G, Abia State (2005) 12 NWLR (Pt. 940) 452; NPA Plc v. Lotus Plastics (2005) 19 NWLR (Pt. 595) 158; Odutola Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt. 994) 321; Ugwu v. Ararume (supra); Bakare v. NRC (2007) 17 NWLR (pt. 1064) 606; Nigerian Army v. Aminu Kano (2008) 5 NWLR (Pt. 1188) 429; Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 258; Abegunde v. O.S.H.A (supra); Nobis Elendu v. INEC (2005) 16 NWLR (Pt. 1845) 197; Akpamgbo-Okadigbo v. Chidi (No.1) (2015) 10 NWLR (Pt. 1466) 171; PDP v. Sherriff (2017) 15 NWLR (Pt. 1588) 219. Indubitably, sections and paragraphs of sections must be read together, not in isolation. The reason is obvious. Paragraphs are complimentary to and explain the meaning and scope of a section or subsection. See Mobil Oil (Nig.) Plc. v. IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHETHER AN APPELLATE COURT IS BOUND BY THE CONTENTS OF THE RECORD OF APPEAL

An appellate Court is bound by the contents of the record. It has no vires to read into it what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too. See Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1; Britania – U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. PER OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of Federal High Court, Lagos Division, in its appellate jurisdiction, (hereinafter addressed as “the lower Court”), coram judice: Hadiza R. Shagari, J., in Appeal No. FHC/L/3A/2017, delivered on 26th March, 2018. Before the lower Court, the appellant and the respondent were the respondent and the appellant respectively.

The facts of the case, which transmuted into the appeal, submit to brevity and simplicity. The appellant’s business is in the exploration and production of crude oil in Nigeria. At times, in the course of its production of crude oil, natural gas would get associated with it. In such situations, the appellant had implemented programme to utilise and re-inject the natural gas. Where it was not possible or appropriate, the appellant would flare the gas and would pay prescribed sums to the Federal Government of Nigeria for the volume of gas flared. The appellant paid such sums for 2006 – 2008, which were receipted, but the Minister of Petroleum Resources (the Minister) failed to issue it with

certificate therefor. In October, 2012, the respondent served the appellant with three notices of additional assessment of the petroleum profit tax for the periods of 2006 – 2008 accounting years and disallowed, as deductible expenses, those payments the appellant made to the Federal Government of Nigeria for the gas flared for those years. The appellant objected to the notices of additional assessment on the ground that those payments constituted deductible expenses under the law. The respondent, in turn, refused and considered the objection invalid. Sequel to that, the appellant beseeched the Tax Appeal Tribunal (the Tribunal) Lagos zone, coram judice: Kayode Sofola, SAN (Chairman), C.A. Ajayi (Mrs), D.H. Gapsiso Esq., C. Asuzu, Esq., and Mustafa Bulu Ibrahim (Commissioners), via a 3-ground notice of appeal filed on 19th December, 2013, found at pages 8 – 12 of the record, and tabled against the respondent the following reliefs:
i. A DECLARATION that the sums of USD3,126,000, USD3,129,000 and USD2,726,000 paid by the Appellant in the 2006, 2007 and 2008 years of assessment respectively for flaring gas are wholly, exclusively and

necessarily incurred for the purpose of the petroleum operations carried on by the Appellant.
ii. A DECLARATION that the sums of USD 3,126,000, USD 3,129,000 and USD 2,726,000 paid by the Appellant in the 2006, 2007 and 2008 years of assessment respectively for flaring gas are deductible expenses under Section 10(1) of the PPTA in calculating the Appellant’s petroleum profits tax liability.
iii. A DECLARATION that the sums of USD3,126,000, USD3,129,000 and USD2,726,000 paid by the Appellant for flaring gas in 2006, 2007 and 2008 years of assessment respectively constitute a fee in accordance with Section 10(1) (I) PPTA and are therefore deductible in calculating the Appellant’s petroleum profits tax.
iv. AN ORDER setting aside the notices of additional assessments for the 2006, 2007 and 2008 years of assessments.

In reaction, the respondent joined issue with the appellant and denied liability by a reply which sought for these reliefs:
i. A declaration that the Notices of Additional Assessment PPTBA 45, PPTBA 47, and PPTBA 49 issued by the Respondent are valid.
ii. An order mandating the Appellant to pay the total sum

of US$7,633,850 being the additional Petroleum Profits Tax liability of the Appellant for the 2006, 2007, and 2008 years of assessment.
iii. An order mandating the Appellant to pay 10% of the total tax due by virtue of Section 32 of the Federal Inland Revenue Service Act.
iv. Interest at the prevailing commercial rate on the judgment sum until it is liquidated.

The appellant filed a rejoinder to the respondent’s reply.

Following the discordant claims, the Tribunal had a full-scale determinal of the appeal. In proof of the appeal, the appellant fielded a witness. In disproof of it, the respondent called a witness. Tons of documentary evidence were tendered by the parties. At the conclusion of evidence, the parties, through counsel, addressed the Tribunal in the manner required by law. In a considered judgment, delivered on 17th March, 2015, found in pages 173 – 181 of the record, the Tribunal allowed the appeal and granted the appellant’s claims.

The respondent was aggrieved by the decision. Hence, on 16th April, 2015, the respondent lodged a 3-ground notice of appeal, copied at pages 182 – 187 of the record, to

the lower Court. The lower Court heard the appeal. In a considered judgment, delivered on 26th March, 2018, reflected at pages 244 – 271 of the record, the lower Court allowed the respondent’s appeal.

The appellant was dissatisfied with the decision. On 19th June, 2018, the appellant filed a 3-ground notice of appeal, seen at pages 272 – 276 of the record, wherein it prayed this Court for:
4.1 An order setting aside the decision of the lower Court and allowed the appeal.
4.2 An order declaring the fees paid by the Appellant to the Federal Government of Nigeria for gas flared in the 2006, 2007 and 2008 accounting periods as deductible expenses in determining the Appellant’s Petroleum Profits Tax liability for the 2006, 2007 and 2008 accounting periods.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeal in this Court. The appeal was heard on 11th January, 2021.

During its hearing, learned appellant’s counsel, …, adopted the appellant’s brief of argument, filed on 24th September, 2018, and the

appellant’s reply brief of argument, filed on 4th December, 2020 as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel … adopted the respondent’s brief of argument, filed on 7th May, 2019 but deemed properly filed on 7th December, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
a. Whether in terms of Section 3 of AGRA, where utilisation and reinjection of associated gas is not appropriate or feasible in a particular field, it is sufficient for the Appellant to flare associated gas and pay the prescribed sum to the Federal Government for the volume of gas flared?
b. In view of Section 10(1) of the PPTA, were the sums paid by the Appellant to the Federal Government of Nigeria for gas flared in 2006, 2007 and 2008 accounting periods not wholly, exclusively and necessarily incurred by the appellant for its petroleum operations so as to be treated as deductible expenses in the determination of the Appellant’s

petroleum profits tax liability for the 2006, 2007 and 2008 accounting periods?
c. Is the absence of a written permit, or non-issuance or delay in issuance of gas flaring certificates by the Minister of Petroleum Resources a valid basis for declaring the Appellant’s flaring of gas in the 2006 to 2008 accounting periods an invalid act?

In the respondent’s brief of argument, learned counsel crafted two issues for determination, namely:
i. Whether the learned Trial Judge of the Lower Court erred in the interpretation of Section 3 of the Associated Gas and Re-injection Act (AGRA) when it held that the Appellant was in breach of the provisions of Section 3 of AGRA flaring gas without the written permission or certificate of the Minister in 2006-2008 accounting periods.
ii. Whether the learned Trial Judge of the Lower Court erred when it held that the payments made by the Appellant for gas flaring in 2006-2008 accounting periods without the Minister’s written permission or certificate did not qualify as deductible expenses.

A close look at the two sets of issues shows that they are identical in substance. In point of fact,

the respondent’s issues can conveniently be subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant, the undoubted owner of the appeal.

Arguments on the issues.
Issue one
Learned appellant’s counsel submitted that where re-injection or utilisation of gas was not feasible, a company would be allowed to flare gas and pay certain sums of money for the gas flared. He relied on Section 3 (1) and (2) of the Associated Gas Re-injection Act (AGRA), Cap. 25 Laws of the Federation of Nigeria, LFN, 2004. He noted that the lower Court did not give literal interpretation to the provision. He cited IBWA v. Imano (Nig.) Ltd (1988) 3 NWLR (Pt. 85) 633. He reasoned that Subsections (1) and (2) of Section of the AGRA could not be applied simultaneously because the phrase “subject to” in subsection (1) ousted it in the matter. He referred to Oloruntoba-Oju v. Abdul-Raheem (2009) LPELR-2596 (SC); Sun Insurance (Nig.) Plc. v. Umez Engineering Construction Co. Ltd. (2015) 11 NWLR (Pt. 1471) 576. He maintained that the lower Court wrongly interpreted the provision

to mean that the appellant must have written permission and certificate of the Minister. He explained that paragraphs (a) and (b) of Subsection (2) applied separately because of the word “or” in-between them. He cited Edeninam v. Ukime (2007) All FWLR (Pt. 396) 763. He claimed that the appellant complied with the provision of Section 3(2) (b) of the AGRA. He said that royalty mentioned in the proviso of paragraph (b) is paid after, not before, production of crude oil. He cited Paragraph 61(1) of the Petroleum (Drilling and Production) Regulations. He listed the features in Section 3(1) and (2) of the AGRA. He persisted that Section 3(2)(b) applied to the appellant’s case. He asserted, in the alternative, that the appellant was duly registered and licenced in Nigeria by the Minister of Petroleum Resources to carry petroleum operations under Section 2 of the Petroleum Act, Cap. P10, LFN, 2004 and the same needed no proof. He referred to Military Governor of Lagos State v. Adeyiga (2012) 2 SC (Pt. 1) 68.

On behalf of the respondent, learned counsel argued that Section 3 should be interpreted as a whole as required by law.

He relied on Mobil Oil Plc. v. IAL 36 INC. US (2000) 6 NWLR (Pt. 659) 146. He stated that the Minister’s certificate was necessary for continuous gas flaring under Section 3(2) (a) and (b) of the AGRA. He explained that the Minister’s power and conditions to guide him are derived from paragraph 1 of the Associated Gas Re-injection (Continued Flaring of Gas) Regulations (AGR(CFOG)R) Cap. A.25, LFN, 2004. He outlined the conditions and said that Section 3(2) (a) and (b) of the AGRA are subject to the paragraph as it administers the certificate provided in it. He opined that the phrase “subject to” in Section 3(1) does invalidate it but makes it subservient to Section 3(2) of the AGRA. He relied on Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517; FRN v. Osahon (2006) 5 NWLR (Pt. 973) 261. He said Section 3(2)(a) and (b) does not envisage retrospective issuance of certificate. He said that the provision should be given its liberal interpretation. He referred to Bababe v. FRN (2018) LER SC. 883, 2016. He observed that lack of

Minister’s certificate did not mean that the appellant should continue to flare the gas. He conceded that royalty should be paid after crude oil had been produced under Regulation 61 (1) of the Petroleum (Drilling and Production) Regulation, but added that the proviso did remove the need for Minister’s certificate as the proviso was to protect the government. He insisted that Section 3 (2) (b) must be compiled with as a statutory provision. He cited Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 365. He added that there was no evidence that the appellant obtained Minister’s certificate before engaging in the continuous gas flaring. He observed that the method in a statute must be flowed and Section 3 (2) (b) should be given literal interpretation. He relied on Ajuta II v. Ngene (2002) 1 NWLR (Pt. 748) 300; Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402. He concluded that failure to comply with a condition precedent would render an action incompetent and a nullity. He cited Aina v. Linadu (1992) 4 NWLR (Pt. 233); Ifezue v. Mbadugha (1984) 5 SC (Reprint);

Fayemi v. L.G.S.C., Oyo State (2005) 6 NWLR (Pt. 921) 280.

Issue two
Learned appellant’s counsel contended that Section 3 (2) (b) of the AGRA contemplated Minister’s certificate after gas flaring. He observed that the lower Court went against the decision in C.C.C.T & C.S Ltd. v. Ekpo (2008) LPELR-825 (SC). He opined that the lower Court wrongly held that the gas flaring without the certificate was illegal and the payments non-deductible. He reproduced the meanings of Petroleum operations and petroleum under the Petroleum Profits Tax Act, (PPTA) Cap. P10, LFN, 2004, and stated that natural gas fell within the PPTA. He reasoned that deductible expenses under Section 10 (1) of the PPTA were not exhaustive. He claimed that payments for flow gas came under Section 10(1) (l) of PPTA. He cited SPDC v. FBIR (1996) 8 NWLR (Pt. 466) 256. He classified the payments as outgoings and expenses under Section 10 (1) (l) of the PPTA and that the lower Court acknowledged that, but wrongly declared the sums paid and the appellant’s action as invalid acts. He explained that there was no evidence that the sums did not qualify as minimum amount

charged under Section 11 (2) (b) of the PPTA. He said that non-issuance of receipts did not mean that the appellant did not incur the expenses wholly, exclusively and necessarily for petroleum operations. He took the view that the lower Court’s finding that the fees were illegal was without evidence and speculative and wrong in law. He referred to Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494. He concluded that the lack of Minister’s certificate did not make the fees illegal as that would amount to punishing the appellant for his mistake. He cited Fagge v. Amadu (2015) LPELR-25920 (CA); Ede v. Mba (2011) LPELR-8234 (SC).

For the respondent, learned counsel argued that the appellant’s payments for continuous gas flaring for 2006-2008 accounting years did not qualify as deductible expenses under PPTA and the lower Court rightly found. He stated that tax legislations must be construed strictly. He relied on 7 up Bottling Co. Plc v. L.S.I.R.B. (2003) 3 NWLR (Pt. 650); Nigerian Breweries Plc v. Oyo State Board of Internal Revenue (2012) LPELR-8672 (CA); Ahmadu v. Governor of Kogi State (2003) 3 NWLR (Pt. 755) 502. He noted that

continuous gas flaring would not take place before issuance of certificate under Section 3 (2) (b) of the AGRA as the Minister would not consider the conditions nor determine whether utilisation or re-injection was not feasible. He claimed that the appellant’s continuous gas flaring without Minister’s certificate was an illegal action. He asserted that the payments would not constitute deductible expenses under Section 10 (1) of the PPTA because no action would arise from illegal act. He cited Obisesan v. Ogunsola (1979) LPELR FCA/1/37/78. He opined that the appellant’s failure to comply with Section 3 (2) (b) would not confer benefit on it under Section 10 (1) of the PPTA because something would not be put on nothing. He referred to Macfoy v. UTC Ltd. (1962) AC 152; Sken Consult v Ukey (1981) 1 SC 6; Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286. He observed that the product of avoid act is a nullity. He relied on Abiodun v. FRN (2016) 2-3 SC (Pt. II). He persisted that section II of the PPTA was inapplicable as it did not mention companies that flame gas and express mention of one thing excluded others unmentioned. He cited

Major & Co Ltd. v. Schroeder (1992) 2 NWLR (Pt. 101). He said that Section 3 of the AGRA did not mention sums paid as penalties paid as tax deductible. He stated that payments in the exhibits were for penalties for gas flamed and not charges as claimed by the appellant. He posited that tax laws do not regard penalties as tax deductible. He cited Section 13 (1) (b) of the PPTA.

On points of law, learned appellant’s counsel posited that the lower Court found that the sums paid were fees, not penalties, and no appeal against the finding and remained binding on the parties. He reasoned that the penalties in the receipts, exhibits, would not contradict statutory provisions as an official who wrote them must perform his functions within the confine of the statute. He cited Section 10 (1) of the Interpretation Act, Cap. I 23, LFN, 2004; Ifezue v. Mbadugha (1984) 1 SCNLR 427. He maintained that there was no monetary penalties in AGRA but non-monetary penalties as provided in Section 4 of it and no other penalty could be imposed. He referred to Aoko v. Fagbemi (1961) All NLR (Pt. 2) 400; Amoshina v. State (2011) LPELR-471 (SC).

Issue three
Learned appellant’s counsel argued that the lower Court wrongly held that the Minister’s certificate was a condition precedent for continuous gas flaring. He explained that the Minister had the power to declare the gas flared in 2006-2008 accounting period as invalid and not the lower Court. He stated that the penalties for violation Section 3 are in Section 4 of the AGRA. He asserted that the Minister never showed that it defaulted in any of the provisions of Section 3 or conditions for issuance of certificate provided in Associated Gas re-Injection (Continued Flaring of Gas) Regulations 1985 (AGRCFDG) R). He opined that the legality of the gas flaring was within the power of the Minister and the lower Court wrongly usurped his power. He cited Wabara v. Nnadede (2009) LPELR-4247 (CA).

On the side of the respondent, learned counsel contended that the Minister’s duly was different from the respondent’s duty – administration of taxes. He noted that the issue before the lower Court was interpretation of statutes and it had the power to do so under Section 6 of the Constitution, as amended. He asserted that the lower Court was bound to interpret

the issue of non-compliance with provision of statute submitted by the respondent to it. He cited A-G., Kwara State v. Adeyemo (2016) 7 SC (Pt. II). He insisted that it did not take over the Minister’s power.

Resolution of the issues.
For the sake of orderliness, I will attend to the issues in their numerical sequence of presentation by the feuding parties. To this end, I will take off with the treatment of issue one. The meat of the issue is plain. It chastises the lower Court’s finding that obtaining certificate of the Minister preceded the flaring of gas under Section 3 of the AGRA. In other words, the issue orbits around the interpretation of Section 3 of the AGRA. It is a subble summon/invocation of the interpretative jurisdiction of this Court. The chief reason/raison d’etre for interpretation of statute is to discover the intention of the legislature, the law maker, using the words therein as the yardstick, and apply them to the consideration of the matter. See Idehen v. Idehen (1991) 7 SCNJ 196; Olanrewaju v. Governor, Oyo State (1992)11-12 SCNJ 92; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407;

Gbagbarigha v. Toruemi (2013) 6 NWLR (Pt. 1350) 289; A.-G., Fed. v. A.-G., Lagos State (2013) 16 NWLR (Pt. 1380) 249; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. The use of words as the barometer for interpretation is because “Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.” See A.-G., Bendel State v. A.-G., Fed. (1981) 10 SC 1 at 132/(1982) NCCR at 77, per Obaseki, JSC.
Now, the marrow of the appellant’s grievance is that the lower Court wrongly interpreted the provision of Section 3 of the AGRA. Since the provision is the cynosure of the issue, it is imperative to pluck it out from where is it ingrained/entrenched in the statute book, ipsissima verba, as follows:
3. Flaring of gas to cease.
(1) Subject to Subsection (2) of this section, no company engaged in the production of oil or gas shall after 1 January, 1984 flare gas produced in association with oil without the

permission in writing of the Minister.
(2) Where the Minister is satisfied after 1 January, 1984 that utilisation or re-injection of the produced gas is not appropriate or feasible in a particular field or fields, he may issue a certificate in that respect to a company engaged in the production of oil or gas.
(a) Specifying such terms and conditions, as he may at his discretion choose to impose, for the continued flaring of gas in the particular field or fields; or
(b) Permitting the company to continue to flare gas in the particular field or fields if the company pays such sum as the Minister may from time to time prescribe for every 28.317 Standard Cubic Metre (SCM) of gas flared:
Provided that, any payment due under this paragraph shall be made in the same manner and be subject to the same procedure as for the payment of royalties to the Federal Government by companies engaged in the production of oil.
The provision does not harbour any ambiguity. On this score, the law compels the Court to accord it its ordinary grammatical meanings without any embellishments. See Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012)

15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setracto (Nig) Ltd. v. Kpayi (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55.

The appellant’s foremost grudge is pegged on the use of the phrase “Subject to Subsection (2) of this Section” in Section 3(1) of the AGRA. The import/purport of the use of the phrase “subject to” in a statute was graphically and elaborately, captured by Onnoghen, JSC (later CJN) in FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361, at 429 and 430, in these illuminating words:
The expression “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by; provided that or provided; answerable for. The term introduces a condition, a restriction, a limitation, a provision. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. The expression generally implies that what is subject to shall govern, control and prevail over what

follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision… referred to.
See also Oke v. Oke (1974) 1 All NLR (Pt. 1) 443; Idehen v. Idehen (supra); Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554; NDIC v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107; Balonwu v. Gov., Anambra State (2009) 18 NWLR (Pt. 1172) 13; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; Uwaifo v. Uwaifo (2013) 10 NWLR (Pt. 1361) 185; Lovleen Toys Ind. Ltd. v. Komolafe (2013) 14 NWLR (Pt. 1375) 542; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; N.A.O.C. Ltd. v. Nnweke (2016) 7 NWLR (Pt. 1512) 588; BPS Constr. & Engr. Co. Ltd. v. FCDA (2017) 10 NWLR (Pt. 1572) 1; Skye Bank Plc. v. Iwu (2017) 16 NWLR (Pt. 1590) 24; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; G.C.M. Ltd. v. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507.
It admits of no argument that the cradle of Section 3(1) of the AGRA catalogued above, commences with the term “Subject to Subsection (2) of this Section”. In the face of the import of

“subject to”, displayed in the above ex cathedra authorities, the provision of Subsection (1) has to play a second fiddle to that of Subsection (2) of the AGRA. It must bow to/genuflect before the provision of Subsection (2). In other words, the provision of Subsection (2) supersedes and holds dominion/hegemony over the provision of Subsection (1). It lords it over Subsection (1) vis-a-vis the matters/items provided in Section 3 of the AGRA. The expression “subject to”, employed by the draftsman at the dawn of Subsection (1), neutralises and drowns the effervescences/efficacy of that Subsection (1), which warehouses it, in circumstance of concurrent application with Subsection (2). In this wise, the appellant rightly took shelter under the almighty provision of Subsection (2) in relation to its business of gas flaring.

However, the casus belli between the feuding parties rotates around when the Minister ought to issue his certificate disclosing his approval for gas flaring where utilisation or re-injection is not appropriate or feasible. It is the appellant’s contention that its case comes within the perimeter of

Section 3 (2) (b) of the AGRA and the Minister’s certificate should come after gas flared by it. A dispassionate construction of this Subsection (2) (a) and (b) of the AGRA, provokes/ignites the invitation of the mischief rule. The mischief rule, one of the canons of interpretation of statutes, traces its paternity to the Heydon’s case (1584) 3 Co. Rep. 79 decided by the Barons of the Court of Exchequer. It postulates four things, which a Judge bears in mind in the interpretation of statute, videlicet: the state of the law before the making of the enactment, the defect for which the law did not provide, the remedy adopted by the legislature to cure the mischief and the true reason behind the remedy. The duty of the Judge, under the mischief rule, is to always make constructions that will suppress the mischief, advance the remedy and suppress subtle inventions and evasions for continuance of the mischief. This mischief rule has taken tap root and firmly propagated in our copus juris as shown in an avalanche of authorities. See Ifezue v. Mbadugha (1984) 1 SCNL 427; Udo v. Orthopaedic Hospitals (1993) 7 SCNJ (Pt. II) 436; Shell Pet. Dev. Co. (Nig.) Ltd. v. FBIR

(1996) 8 NWLR (Pt. 466) 256; Wilson v. A-G., Bendel State (1985) 1 NWLR (Pt. 4) 572; Idehen v. Idehen (supra); Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Cotecna Int’l Ltd v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt. 1307) 1; Abegunde v. O.S.H.A. (2015) 8 NWLR (Pt. 1461) 314; Savannah Bank of Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305; Mobil Oil Nig. Ltd. v. Board of Internal Revenue (1977) 1 NCLR 1 at 17/(1979) 3 SC 53 at 75-76; GCM Ltd. v. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507.
I have, in due fidelity to the desire of the law, situated the provision of Section 3 of the AGRA with the mischief rule of interpretation anatomised above. It is discernible from the collective provisions of the AGRA that there was no programme/scheme for associated gas which mingled/mixed up with crude oil prior to 1979. The AGRA was promulgated to cure that defect by compelling companies, involved in oil production, to fashion out schemes/programmes for the utilisation or re-injection of associated gas. It also provides it in its Section 3, which is the subject of interpretation, for

cessation of gas flaring or its existence with the censor of the Minister of Petroleum Resources through the instrumentality of his certificate. The reason is not far-fetched. Gas flaring heats up the atmosphere and occasions climate change with its caustic consequences. It creates inhospitable environment/milieu as it inflicts unbearable heat to man and expose him to flood of health hazards. It constitute a serious danger to the marine ecosystem. Hence, its continuance in Nigeria has to receive the Minister’s superintendence pro bono publico. That is a sure way to dethrone/banish the mischief inherent in gas flaring which was indiscriminate before the birth of the AGRA.

In an avowed bid to justify/rationalise its grouse, the learned appellant’s accorded disjunctive interpretation to the provision of Section 3 (2) (a) and (b) of AGRA. The position of the law is that provisions of legislations are construed holistically in order to garner or reach at the intention of the legislature. That is to say, provisions of enactments are not be subjected to fragmentary interpretation. Thus, mutually-related provisions and sections are married together so

as to glean the intent of the law maker. See Oyeniran v. Egbetola (1997) 5 SCNJ 94; Matari v. Dangaladima (1993) 2 SCNJ 122; A-G., Fed. v. A-G, Abia State (2005) 12 NWLR (Pt. 940) 452; NPA Plc v. Lotus Plastics (2005) 19 NWLR (Pt. 595) 158; Odutola Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt. 994) 321; Ugwu v. Ararume (supra); Bakare v. NRC (2007) 17 NWLR (pt. 1064) 606; Nigerian Army v. Aminu Kano (2008) 5 NWLR (Pt. 1188) 429; Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 258; Abegunde v. O.S.H.A (supra); Nobis Elendu v. INEC (2005) 16 NWLR (Pt. 1845) 197; Akpamgbo-Okadigbo v. Chidi (No.1) (2015) 10 NWLR (Pt. 1466) 171; PDP v. Sherriff (2017) 15 NWLR (Pt. 1588) 219. Indubitably, sections and paragraphs of sections must be read together, not in isolation. The reason is obvious. Paragraphs are complimentary to and explain the meaning and scope of a section or subsection. See Mobil Oil (Nig.) Plc. v. IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146.

In total loyalty to the injunction of the law, displayed above, I have given a global/communal examination to Section 3 (a) and (b) of the AGRA which is rebellious to equivocation. There is a hyphen (-) at the tail end

of Subsection (2). It shows that the Minister’s certificate requirement, hosted therein, governs its paragraphs (a) and (b). Those two paragraphs are supplement to and expound the significance and extent of Subsection (2). Put simply, the Minister’s certificate is a requirement for the actualisation of paragraphs (a) and (b). I dare say, it is a condition-precedent for any person/company taking umbrage under paragraphs (a) and/or (b) to indulge in gas flaring. In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”. See Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439.
The Minister’s certificate is a sine-qua non for a party that wishes to flare gas pursuant to either paragraph (a) or (b) of Subsection (2). The appellant’s seemingly scintillating argument is that a Minister’s certificate is a condition subsequent to the

exercise of its right under paragraph (b). It erected its argument on the use of the phrase “of gas flared” sandwitched between the words “(SCM) and Provided”, which is in past-tense. To begin with, in the realm of syntax, it would have been wrong for the draftsman to say “the gas flare” in order to bring it within the purview of present or future tense. That will constitute a serious coup de grace to grammar. Again, the contention, overlooks/ignores the chapeau of paragraph (b) which starts with “permitting the company to continue to flare gas”, a classic exemplification of present participle. It showcases an element of in futuro in the gas flaring. In essence, the Minister’s certificate has to precede or be anterior to the gas flaring and not posterior to it.
The law tasks/imposes the Court with the bounden duty to interpret a legislation in a manner that ensures that its mission is accomplished. In this regard, it must bear in mind, like a badge on its shoulder, that a law must not be construed to deflate/destroy its purposes. In the Latin law, it was couched: Ut res magis valeat quam valeat- that

a matter may have effect rather than fail/lost/perish. See F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65;Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266; A. – G., Fed., v. A-G, Lagos (2013) 16 NWLR (Pt. 1380) 249; A.-G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309) 419; Abegunde v. O.S.H.A (supra); Gov., Kwara State v. Dada (2011) 14 NWLR (Pt. 1267) 384; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24. I will pay due obeisance to this cannon of interpretation of statute in order not to insult the law. As already noted, the principal target of Section 3 of the AGRA is to abort, truncate, annihilate and efface gas flaring or permit is existence in a supervised form. It will be doing serious violence to its object to apply the construction propounded by the appellant. I refuse the inviting solicitation so that its aim will not vaporize, like flare gas, or perish in womb of injustice. This exposition, with due reverence, punctures and exposes

the poverty of the appellant’s seemingly sterling argument on the issue. It is disabled from its birth.
In the light of the legal anatomy on the significance/purport of Section 3 of the AGRA, done in due consonance with the law, the lower Court’s finding that the Minister’s certificate was mandatory for the appellant to flare gas is an immaculate one. It is not a defilement of Section 3 of the AGRA to warrant the intervention of this Court. It will smell of judicial sacrilege to tinker with a finding that has not disclosed any enmity with to the law. In the end, I have no choice than to resolve the issue one against the appellant and in favour of the respondent. Having dispensed with issue one, I proceed to settle issue two. The kernel of the issue is simple. It castigates the lower Court’s failure to treat the sums the appellant paid to the Federal Government of Nigeria for the gas flared in 2006 – 2008 accounting periods as deductible tax expenses in its favour.

The appellant weaved its agitation on the provision of Section 10(1) (L) of the PPTA. Due to its kingly/olympian position on the issue, I will extract the provision

from its abode in the PPTA, verbatim ac litteratim, as follows:
10. Deductions
(1) In computing the adjusted profit of any company of any accounting period from its petroleum operations, there shall be deducted all outgoings and expenses wholly, exclusively and necessarily incurred, whether within or without Nigeria, during that period by such company for the purpose of those operations, including but without otherwise expanding or limiting the generality of the foregoing –
(L) all sums, the liability of which was incurred by the company during that period to the Federal Government, or to any State or Local Government Council in Nigeria by way of duty, customs and excise duties, stamp duties, education tax, tax (other than the tax imposed by this Act) or any other rate, fee or other like charges.
The provision is comprehension-friendly. On this score, I will, ex debito justitiae, accord it its ordinary/plain meaning without any interpolations. This is in keeping with the construction of revenue based/oriented enactment. In Cape Brandy Syndicate v. I.R.I. (1921) I.K.B. 64 at 71, Rowlatt. J. declared:
In a Taxing Act, one has to

look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.
Again, in Partington v. Att.-Gen. (1869) L.R. 4 H.L 100, at page 122, Lord Cairns proclaimed:
“If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be.
The Court of Appeal had adopted these persuasive pronouncements construing tax legislations in Nigeria. See Phoenixs Motors Ltd. v. NPFMB (1993) 1 NWLR (Pt. 272) 718; Ahamdu v. Gov., Kogi State (2002) 3 NWLR (Pt. 755) 502; F.B.I.R v. I.D.S. Ltd. (2009) 8 NWLR (Pt. 1144) 615. I will bear these parameters in mind and apply them, mutatis mutandis, to this appeal.
In due allegiance to the desire of the law, I have consulted the record; the spinal cord of every appeal. My port of visit is at the residence of the appellant’s one witness evidence which is wrapped between pages 13-16 of the record. I have read it with merciless scrutiny. It is submissive

to clarity. It is his testimony, as evidenced in paragraph 7 at page 14 of the record, that the appellant paid some sums of money for the gas flared between 2006-2008 accounting period and the Minister received the same and issued it with receipts. Those receipts are in evidence. They monopolise pages 21-56 of the record. Section 4 of the AGRA creates the penalty for the violation/infraction of Section 3 thereof. The legality of those receipted sums, id est, whether they come within the province of Section 4 of the AGRA, is not an issue before the Court. In point of fact, the appellant cannot raise it as it will be likened to a man who is paying fervently for his precious and priceless life, yet he carries a letter bomb in his surface pocket which, on detonation, will snuff life out of him. This Court is drained of the vires to probe into the legitimacy of those sums within the ambit of Section 4 of the AGRA.
I have given a microscopic examination to those receipts, domiciled at pages 21-56, issued to the appellant by the Minister on payment of those sums of money for the gas flared. The same description of payment recur in all of them: “Payment of

penalty on Gas Flared” Penalty connotes: “Punishment imposed on a wrongdoer, usually in the form of imprisonment or fine esp., a sum of money exacted as punishment for either a wrong to the state or a civil wrong (as distinguished from compensation for the injured party’s loss). Though usually for crimes, penalties are also sometimes imposed for civil wrongs”. See Bryan A. Garner etal Black’s Law Dictionary, Tenth edition (USA, West Publishing Co.) 2004.
I have matched/married the word “penalty” with the provision of Section 10(1) (l) of the PPTA chronicled above. The wisdom behind the juxtaposition is plain. It is to discover if the word “penalty” comes within or outside the provision in the spirit of strict interpretation of taxation law. I have given a clinical study to the provision. Incidentally, I am unable, even with the prying eagle-eye of a Court, to locate where penalty is mentioned in the provision. Penalty is glaringly absent from the provision. To my mind, the import is that the provision has not categorised penalty as one of the outgoings and expenses wholly, exclusively and necessarily incurred

by a company for the purpose petroleum operations as to come within the four walls of tax deductible expenses. It stems from this, its absence from the provision, that the appellant cannot take refuge under the provision to claim that the penalty it paid fall within the perimeter of allowable tax deductions. The provision, in clear terms, has failed to donate such a right to it and it cannot reap a right not available to it. In effect, the appellant’s penalty does not come “within the letter of the law” so as to enjoy the enviable status of tax deductible expenses for the benefit of the appellant.
In an avowed bid to come within the ambit of the provision, the appellant ingeniously canvassed the view that the lower Court characterised the payments as “fees paid”. Admittedly, the lower Court so stated in its judgment, which is at the heat of expunction, at page 270, line 10, of the record. The lower Court, with all due respect, deeply, erred in law in that regard. The documentary evidence, the receipts which are permanent, indelible and incorruptible, gave the payments made the appellation/cognomen of penalty. The lower

Court was not clothed with the jurisdiction to alter that nomenclature which had formed part of the record before it. The injudicious act is amounted to tinkering with the record. An appellate Court is bound by the contents of the record. It has no vires to read into it what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too. See Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1; Britania – U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. I vacate that classification for being offensive to the Olympian position of record in any adjudication. This castrates the defeasible

defence, that the payments were fees, erected by the appellant. It is lame and cannot fly.
My noble Lords, it must underscored that the provision of Section 10 (1) (l) of the PPTA does not outline penalty as one of the liabilities incurred by the appellant during that period to the Federal Government as to tap from the vineyard of the beneficent provision. The implication of the appellant’s dazzling argument is to nudge the Court to count in penalty in the provision. It is a recognised canon of interpretation of statutes, which embrace subsidiary enactments, that the express mention of specific thing excludes the other things unmentioned. In the Latin days of the law, it was encapsulated thus: Expressio unius est exclusio alterius or Inclusio unius exclusio alterius or Enumeratio unius exclusio alterius. The case-law has since given its blessing to this rule of interpretation. See Ehuwa v. O.S.I.E.C (2006) 18 NWLR (Pt.1012) 544; P. & C.H.S. Co. v. Migfo (Nig.) Ltd. (2009) II NWLR (Pt. 1153) 611; A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Sun Ins. (Nig.) Plc. v. UECC Ltd, (2015) II NWLR

(Pt. 1471) 576; Jev. v. Iyortyom (2015) 15 NWLR (Pt. 1483) 484; Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340.
It is an elementary law, that the primary duty/function of the Court/Judex is jus dicere, not jus dare, id est, to declare what the law is and not to formulate one. See Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44); Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Coca-cola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. It will constitute a serious fracture of the rudimentary/traditional role of the Court to factor the missing penalty into the provision as supplicated solicited by the appellant. The law does not grant this Court the licence to indulge in such untoward and injudicious exercise which will smell of judicial legislation – a judgment wearing the garb, colouration or flavour of a statute. That will tantamount to an unjustifiable usurpation, trespass and invasion of the exclusive constitutional territory of the legislature. Such is not only antithetical to the raison d’etre for adjudication, but an amputation of the constitutional doctrine of separation of

powers. I must decline such enticing supplication that has the potential to decimate the existential doctrine of separation of powers which is firmly entrenched in the Constitution – the fons et origo of our laws.
That is not all. There is another canon of interpretation of statute that cries for application on this issue. It is the Ejusdem Generis rule of construction of enactment. It denotes that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. It is a question of an assumed intention of a statute. The rule has received the blessing of the case-law in Nigeria. SeeJammal Steel Structures Ltd. v. ACB (1973) 8 NSCC 619 at 627; Oyeniran v. Egbetola (1997) 5 SCNJ 94; Shell v. FBIR (1996) 0-10 SCNJ 231; Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Okewu v. FRN (2012) 9 NWLR (Pt. 1305) 327; Ochala v. FRN (2016) 17 NWLR (Pt. 1541) 69; APC v. PDP (2015) 15 NWLR (Pt. 1481) 1.

It is decipherable from the phraseology of paragraph (l) of Section 10 (1) of the PPTA that it terminates with an ominous phrase “other like charges” after listing certain liabilities that could enure to the FG (in full) from a company in petroleum operations. Those liabilities are: duty, customs and excise duties, stamp duties, education tax, tax or any other rate or fee. In my considered view, the general phrase “other like charges” is limited to species of liabilities enumerated in the paragraph. As already noted, at the dawn of this issue, a penalty signifies a fine in monetary terms/sum exacted as a punishment for either wrong to the state or a civil wrong. A penalty falls outside the wide class of liabilities listed in the paragraph. In essence, the phrase “other like charges” does not encompass penalty so as to qualify as outgoings and expenses wholly, exclusively and necessarily incurred by the appellant between 206-2006 accounting period which is amenable to tax deductible in computing the adjusted profits of the appellant.
The appellant stigmatised the lower Court’s finding on the issues as

fraught with speculation. In the sight of the law, speculation connotes “… a mere imaginative guess which even when it appears plausible should not be allowed by a Court to fill any gap in the evidence before it”. See Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266 at 304, per Adekeye, JSC. The law forbids a Court of law from indulging in speculation. See Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Jitte v. Okpulor (2016) 2 NWLR (Pt.1497) 542; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87. Amazingly, the appellant starved this Court of any classic evidence of how the lower Court embraced speculation in the interpretation of the provision. Having regard to the above legal dissections, I am in a serious difficulty to find the debilitating elements/vices of speculation its construction of the provision. To this end, the charge of speculation, which the appellant hurled against the finding, is a quintessence of a pseudo-allegation. It is uncharitable and unsustainable.
For the sake of completeness, the appellant placed high premium on the Supreme Court decision in

Shell Pet. Dev. Co. (Nig.) Ltd. v. F.B.I.R (1996) 8 NWLR (Pt. 466) 256 (Shell case). It seriously implored this Court to follow the decision. In due loyalty to the command of the law, I have perused the decision in Shell case with the finery of a tooth comb. Therein, the Supreme Court allowed exchange losses, Central Bank charges and scholarship expenses as expenses wholly, exclusively and necessarily incurred by the appellant as deductible expenses tax in computing its adjusted profits. In the case in hand, the controversy centres on the candidacy/eligibility or otherwise of penalty as expense wholly, exclusively and necessarily incurred by the appellant, in its petroleum operations, as tax allowable in its favour. Thus, the facts of that case are totally incompatible/disharmonious with those of this appeal. The importance of facts in determination of cases cannot be over emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to completely turn around the fortune or misfortune of a case. They define the success or failure of cases. In the Roman days of the law, they were couched as: Ex facto oritur jus – law

has its offspring on the fact. See A.-G., Anambra State v. A. – G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365. The ancient doctrine of stare decisis, which was invented to ensure certainty in law, and which should compel me to apply Shell case, thrives where facts of cases are in pari materia. It is lame where the facts of cases are not on all fours. Since the facts of the two cases are distinguishable, the law does not grant me the nod to kowtow to the decision in Shell case. I am therefore, impelled by law to decline the appellant’s inviting request on the footing of facts differential. The lower Court did not defile the law when it declined similar invitation.
Flowing from the above juridical survey, the lower Court’s finding that the appellant was not entitled to tax deductible in computing its adjusted profits for the 2006 – 2008 accounting period is not an affront to the law. In that premise, all the structures, which the appellant rained against the solemn finding, pale into insignificance. I therefore dishonour the appellant’s

salivating invitation to sacrifice the finding on the underserved altar of improper interpretation of Section 10 (1) (l) of the PPTA for want of justification. In the result, I will not hesitate to resolve the issue two against the appellant and in favour of the respondent.

It remains to handle issue three. The plinth/nucleus of the issue is disobedient to equivocation. It falls within a narrow compass. It quarrels with the propriety or otherwise of the lower Court’s declaration of the appellant’s conduct of gas flaring without the Minister’s certificate as an invalid act. I believe I did a serious tour d’ horizon in the consideration of the two preceding issues. The outcome of those two issues, which lean against the appellant, renders the consideration of this issue a footnote and otiose as it snowballs into the constricted four walls of an academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, JSC, incisively, explained the term, thus:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his

favour. A suit is academic if it is not related to practical situation of human nature and humanity.
It is settled law, that a Court is drained of the necessary jurisdiction to adjudicate over academic disputes. This is so even if their determination will enrich the jurisprudential content of the law. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts. See A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.
Flowing from this inelastic position of the law, the appellant’s issue three, to all intents and purposes, is rendered idle. Its resolution in favour of the appellant will not advance, an inch, the chances of the success of the appeal. Nor will it,

if found in favour of the respondent, erode the strength of its case on the appeal. Put starkly, its consideration by this Court, even if found in favour of the appellant or the respondent, will be of no judicial utilitarian value to either of them premised on the result of the other two issues. It is trite that Courts are not equipped with the requisite jurisdiction to adjudicate over academic issues. In total obedience to the law, I strike out the issue three for being an incompetent academic issue.

On the whole, having resolved the two live issues (one and two) against the appellant, the fortune of the appeal is obvious. It is devoid of any tinge of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 26th March, 2018. The parties shall bear the respective costs they expended in the prosecution and defence of the ill-fated appeal.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother Obande Festus Ogbuinya, JCA. My learned brother has incisively considered the issues in this appeal and arrived at conclusions which I

entirely agree with. That being the case and seeing that there is nothing useful on my part to add, I dismiss the appeal. Parties are to bear their costs in the appeal.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Obande Festus Ogbuinya, JCA, made available to me a draft copy of the lead Judgment in this appeal. The appeal was adjudged to be without merit and dismissed. I completely agree and adopt the reasoning and conclusions therein as mine.
I also dismiss the appeal and affirm the decision of the lower Court.

Appearances:

JIBRIN DASUN, ESQ. For Appellant(s)

BASHIRU POPOOLA, ESQ. For Respondent(s)