NIGERIA STORED PRODUCTS RESEARCH INSTITUTE v. BOARD OF INTERNAL REVENUE, KWARA STATE (2013)

NIGERIA STORED PRODUCTS RESEARCH INSTITUTE v. BOARD OF INTERNAL REVENUE, KWARA STATE

(2013)LCN/6593(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/IL/16/2013

RATIO

LIMITATATION OF STATUTE: PERIOD WITHIN WHICH A PERSON AFFECTED BY THE ACT OR DEFAULT OF A PUBLIC OFFICER MAY INSTITUTE AN ACTION

A person whose right has been affected by an act or default done or intended, in the lawful execution of a public duty must commence an action for any redress within three months after such act or default. The implication of a defence under a limitation law is that where an action is statute barred in that it is not instituted within the period stipulated under the law, such an action can no longer be validly instituted or maintained nor proceedings validly conducted thereon as the matter, has become dead and the cause of action has become bare and unenforceable. The court has been divested of its jurisdiction to entertain the action notwithstanding that it is otherwise meritorious. See Ogun State Government v. Dalami Nig. Ltd (2007) All FWLR (Pt. 365) 438; Chighu v. Tonimas (Nig) Ltd (2006) 9 NWLR (Pt. 984) 189; Sanni v. Okene Local Government (2005) 14 NWLR (Pt. 944) 60; Eboigbe v. NNPC (1994) 3 NWLR (Pt. 347) 649; Utih v. Egor (1990) 5 NWLR (Pt. 153) 771 Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt. 504) 237.
However, the preponderance of judicial authorities on the matter of limitation law or Act is that there are recognized exceptions to the general coverage or protection allowed to the person or authority. Thus it must be established that:
(a) The person against whom the action is commenced is a public officer or a person acting in the execution of a public duty;
(b) The act done that has necessitated the commencement of the action is in pursuance or execution of any law, public duty or authority.
In Ibrahim v. JSC (supra), Iguh, JSC stated at page 32 the circumstances in which Public Officers or authorities are covered by the limitation law. He said, “It can therefore be said that section 2(a) of the Public officers (protection) Law 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of that law.
Thus where a public officer acts outside his public duty or outside the colour of his office, a person who has been affected by an act of such a public officer may institute an action in that regard even after the expiration of the limitation period.
In Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2012) 6-7 MJSC (Pt. 111) 149, the Supreme Court stated at pages 181 – 182 that the Public officers (protection) Act is never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice as a result of which the Act has prescribed two “most important exceptions” as follows:
“First, in case of continuance of damage or injury the Act – permits action to be brought on the expiration thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit. See Nwankwere v. Adewumi (1967) NWLR 45 at 49; Anozie v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1095) 278 at 290 – 291”. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

HESSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

NIGERIA STORED PRODUCTS RESEARCH INSTITUTE Appellant(s)

AND

BOARD OF INTERNAL REVENUE, KWARA STATE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kwara State, Ilorin Division delivered on 14th January, 2012 in suit No. KWS/224/2012. The respondent as the claimant had filed a writ of summons on 27/8/12 together with the verifying affidavit and claimed a total of N56,730,263.41 being the outstanding liabilities/debts arising from under-deduction and/or unremitted taxes/levies due to the Kwara State Government from the defendant institution for the period of January, 2005 to December 2008 as followings:
N              K
i. Outstanding PAYE                      41,761,005.49
ii. Outstanding withholding Tax         802,181.06
iii. State Development Levy             59,100.00
iv. Statutory Penalty at 10%           4,262,228.66
v. Statutory Interest at 21%           9,845,748.19
(until judgment is given)
TOTAL                56,730,263.41

The respondent also claimed interest on the judgment sum at 10% until full liquidation as well as the cost of prosecuting the suit.

Upon service of the claim, the appellant filed a Memorandum of Conditional Appearance and Notice of Preliminary Objection on 13/11/2012 without filing any Notice of Intention to defend the action or an affidavit showing any defence.

The learned trial judge, Honourable Justice I. B. Garba at the proceedings on 14/12/2012 heard the parties’ counsel on their written addresses in respect of the preliminary objection and adjourned to 09/01/2013 “for ruling or judgment”. The judgment was delivered on 14/1/2013 wherein the learned trial judge dismissed the preliminary objection and entered judgment in favour of the claimant in the sum of Fifty Six Million, Seven Hundred and Thirty Thousand, Two Hundred and sixty Three Naira, Forty-one kobo (N56,730,263.41k) as well as interest at the rate of 10% per annum on the judgment sum from the date of the judgment until full liquidation.

Dissatisfied with the judgment, the appellant filed a Notice of Appeal with five grounds of appeal, and in prosecuting the appeal, the Appellants’ Brief of Argument prepared by Joseph Chiedu Ojei Esq. was filed on 7/3/13 with the following issues formulated for determination in the appeal.
1. Whether having regard to the clear and unambiguous provisions of section 2(a) of the Public Officers (Protection) Act, Cap. P.41, Laws of the Federation of Nigeria, 2004 the Respondent’s action instituted on the 27th of August, 2012 is not statute barred.
2. Having regard to the fact that the proceeding at the lower court was conducted in violation of the clear provision of Order 23 of the Kwara State High Court (Civil Procedure) Rules 2005, whether the Appellant’s right to fair hearing has not been breached by the Court below.
3. Whether the Honourable Court was right in relying on sections 73 and 74 of the Personal Income Tax Act to enter judgment in undefended list.
The Respondent filed a Notice of Intention to Rely upon Preliminary objection under Order 10 of Court of Appeal Rules, 2011 on the basis that;
“Issue No. 2 argued by the Appellant is incompetent and liable to striking out having not being covered by any of the grounds of appeal.” (sic).
In the Brief of Argument of the Respondent filed on 23/4/2013 but deemed filed on 11/6/13 and settled by Funsho D. Lawal (Mrs.), Director Civil Litigation in the Ministry of Justice of Kwara State, the Respondent argued the preliminary objection on pages 6 – 7 and subsequently set out the issues for determination as follows:
i. Whether the trial court was right to have held that the respondent’s undefended list suit was not statute barred under section 2 of the Public Officers (Protection) Act.
ii. Whether the suit at the trial court was heard in violation of the undefended list procedure and thereby breached the right to fair hearing of the appellant.
iii. Whether the trial court was right to have given judgment to the respondent when there was nothing before the trial court filed by the appellant disclosing any defence.
At the hearing of the appeal, the Respondent’s Counsel moved the preliminary objection as argued in the brief and urged court to uphold same, while the learned counsel for the appellant who had filed the Appellants’ Reply to the Respondent’s Brief of Argument and responded to the preliminary objection in paragraphs 2.00 to 2.21 thereof urged that the objection be refused. The two learned counsel adopted their Briefs of Argument and prayed the court to allow or dismiss the appeal as it might be applicable.
Now the approach of an appellate court where a preliminary objection has been raised in an appeal is to first consider the objection and determine it before going into the issues raised in the appeal even where such an objection is palpably frivolous. See FBN Plc v. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247.
Although the respondent styled the objection in the instant case as preliminary, the complaint therein is that the issue No. 2 submitted by the appellant for determination is not related to ground No. 2 of the grounds of appeal upon which it was purportedly based or even any of the grounds. It was contended that the issue of non-compliance with the procedure in Order 23 of the High Court Rules argued as issue No. 2 does not arise from any of the grounds of appeal, and such an issue not based on a ground of appeal is incompetent. The cases of Abdul-Raheem v. Oloruntoba-Oju (2007) All FWLR (Pt. 354) 267; Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284, Inua v. Nta (1961) All NLR 576; Kano ile v. Gloede Hoff Ltd (2005) 22 NSCQR 346; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130. It was submitted that it is the grounds of appeal that donate the issue for determination and not the particulars as particulars of the ground of appeal cannot be argued separately, citing Stirling Civil Engineering Ltd v. Mahmood Yahya (2005) 22 NSCQRI.
In response, the learned counsel for the appellant argued that the case of the respondent was founded on Order 23 of Kwara State High Court (Civil Procedure) Rules 2005 and ground 2 of the appeal is that the trial court was in error to have given judgment in favour of the respondent without giving the appellant the opportunity of defending the suit while issue 2 raised and argued by the appellant is that the appellant’s right to fair hearing was breached by the trial court that conducted the proceedings in violation of Order 23 of Kwara State High Court (Civil Procedure) Rules 2005 which the courts are enjoined to strictly comply with so as to avoid a miscarriage of justice.
The learned counsel for the appellant contended that the trial court had entered judgment for the respondent because the appellant did not file any notice of intention to defend the action and not on the basis of its being satisfied that there was evidence to sustain the claim.
By Order 10 Rule 1 of the Court of Appeal Rules, 2011 a respondent may file a preliminary objection to the hearing of an appeal, it is not against the competence of brief of a party or the issues raised therein. A preliminary objection is meant to contend that the appeal is fundamentally incompetent and to terminate it in limine; where it succeeds, the hearing of the appeal becomes unnecessary. See NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Odunukuze v. Afomata 44 NSQR 379.

It is trite that an issue raised for determination in an appeal must be based on grounds of appeal filed. Any issue that is not tied to any ground of appeal becomes incompetent and goes to no issue, such an issue and argument thereon will be discountenanced by the court. See Amadi v. NNPC (2006) 6 SC (Pt. 1) 66; Adelaya v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608; Okwejiminor v. Gbakeji (2008) All FWLR (Pt. 409) 405; Ode v. FRN (2008) All FWLR (Pt. 424) 1590.
In the Appellant’s Brief of Argument, issue No. 2 which I had earlier on set out in this judgment is said to be formulated from grounds two and three of the grounds of appeal. Grounds two and three as stated in the Notice of Appeal on pages 72 – 75 of the record of appeal are as follows:
“GROUND TWO:
The learned trial judge was in error when his Lordship entered judgment in favour of the Respondent without giving the Appellant the opportunity to defend the suit.

PARTICULARS OF ERROR
(a) The lower court considering the preliminary objection filed by the appellant ought to have allowed the appellant to present his defence on merit.
(b) In the premise of (a) above the Appellant was not given fair hearing.

GROUND THREE:
The learned trial judge misdirected himself in law by holding that there is an admission in paragraph 3.10 of the
Appellant’s address.
(a) The Appellant was not given the opportunity to defend the suit how much more an admission of the claim of the Respondent.
(b) Paragraph 3.10 of the Appellant’s address goes to show that the purported act complained of by the Respondent arose in the cause of a statutory duty.”

There is no doubt that the appellant had by ground 2 above raised a complaint of lack of fair hearing at the trial. It is also not in doubt that the action of the respondent was conducted under the undefended list procedure governed by order 23 of the High Court of Kwara State (Civil Procedure) Rules 2005. Again there is no doubt that the judgment of the learned trial judge was substantially based on the same Order 23 of the Rules of Court.

An issue for determination should be formulated in general terms that will show the real question in controversy in the case. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Magit v. University of Agriculture, Makurdi (2005) 19 NWLR (Pt. 959) 211. What is required in the formulation of an issue for determination is that the issue must fall within the scope or ambit of the ground of appeal and tailored to show the real issue in controversy in the appeal. See Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671.
In my view based on the foregoing state of the law, when it is said that the issue must be based on the ground of appeal or related thereto, this does not translate to the issue being a copy or verbatim repetition of the ground of appeal. It is enough if it is formulated within the intendment of the ground of appeal and in a way that shows the real issue in controversy in the appeal. I am satisfied that issue No. 2 formulated by the appellant is sufficiently based on ground 2 of the appeal.
The objection of the respondent fails and it is dismissed.
Each of the parties has formulated three issues for determination. The first issue by the appellant is almost replicated in the respondents’ issue No. 1 which is whether the appellant’s action is statute barred having regard to section 2(a) of the Public Officers (Protection) Act. The second and third issues formulated by the respondent are covered by the appellant’s second issue about the alleged violation of appellant’s right to fair hearing. The issues set down by the parties are therefore quite identical but I find the appellant’s issues to be quite direct and encompassing and this appeal will be determined on the basis of the three issues in the appellant’s brief which to me also cover the respondents’ three issues.
On issue number one, the appellant had submitted that being a Federal Government Agency created by statute, the appellant is a person within the intendment and meaning of Section 2(a) of the Public Officers (Protection) Act in line with the definition of a person in Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1. It was submitted that the effect of a statute of limitation is to remove the right of action or right to judicial relief and enforcement leaving the claimant with an empty and bare cause of action that cannot be enforced through the court unless the action is instituted within the period stipulated by law, citing Elabanjo v. Dawodu (2006) All FWLR (Pt. 328) 504; Amiator v. Nigeria Army (1989) 12 NWLR (Pt. 631) 632; John Ekogu v. Aliri (1991) 3 SCNJ 45.
On the determination of whether an action has become statute barred the learned counsel submitted that the pertinent consideration is when time begins to run, for which purpose time begins to run as soon as the cause of action has accrued in that there has been in existence a person who can sue and another that can be sued while all the materials to be proved in the case have crystallized. The period of limitation is calculated by examining the originating process to see when the cause of action arose and compare that date with the date the action was filed. The cases of Fadare v. Att. Gen. Oyo State (1982) 4 SC 1; Eboigbe v. NNPC (1994) 3 NWLR (Pt. 347) 659 were cited in support.
It was contended that the respondent’s complaint in this case as captured in paragraphs of the verifying affidavit is based on the default, neglect or action of the appellant within the period of January 2005 – December 2008 while the originating process was filed on 27/8/12, outside the three months provided in section 2(a) of Public Officers (Protection) Act.
On this issue of whether the action has become statute barred which is argued as respondent’s issue one, the learned counsel for the respondent submitted that the action as instituted is not affected by the Public Officers (Protection) Act or any statute of limitation. It was submitted with reliance on Salako v. L.E.D.B. & Anor 20 NLR 169 that actions founded on contract or recovery of land, claim for work and labour done are not affected by statutes of limitation including Public Officers (Protection) Act. It was submitted that the claim of the respondent being one for recovery of statutory debt owed to the appellant and acknowledged by the respondent is not statute barred, citing Nigeria Social Insurance Trust Fund v. Klifco Nig. Ltd suit No. SC.288/2005 delivered on 9th July, 2010 and Thadani v. National Bank Ltd (1967 – 1975) 2 NBLL 383.
Respondent’s counsel contended that running of time does not apply to this case because the respondent as a tax authority has by virtue of section 55(2) of Personal Income Tax Act been empowered to reassess or investigate any tax debt owed it or to carry out backlog assessment either back to 6 years or any time. It was submitted that the appellant in this case has not shown that she acted in good faith or that she has not acted outside the colour of her office because the provisions of the Act are designed to protect only public officers who engage in the due execution of a public duty and within the scope of that duty; citing Ibrahim v. Judicial Service Commission (1998) 4 NWLR (Pt. 584) 1.
It was further submitted that the Appellant in this case who has willfully and in bad faith failed to deduct, or has under deducted and/or refused to remit deducted taxes to the respondent was outside the scope of its duty and was definitely on its own. The cases of Atiyaye v. Permanent Secretary Ministry of Local Government, Borno State (1990) 1 NWLR (Pt. 129) 729; Nwankwere v. Adewumi (1966) 1 ALL NLR 129; Offoboche v. Ogoja Local Govt. (2001) 7 SC (Pt. III) 107 and Egbe v. Belgore (2004) 8 NWLR (Pt. 875) 336 were cited in support.
It was contended that the appellant who intended to rely on the Public Officers (Protection) Act failed to plead same in line with the decision in Ketu v. Onikoro (1984) 10 S.C. 265 and indeed failed to file the required notice of intention to defend or any pleading at all.
In the Appellants’ Reply Brief, the learned counsel argued that none of the provisions of the Personal Income Tax Act mentioned by the respondent has negated the Public Officers (Protection) Act while section 74 of the Personal Income Tax Act (PITA) upon which the learned trial judge relied in the judgment is inapplicable to this case because the taxes mentioned therein are in respect of rent, interest, dividend and directors fees while the action of the respondent is not based on simple contract.
It was submitted that section 55 of the PITA merely permits the tax authority to conduct assessment within the year of assessment or six years after the expiration of the period, or any time where there are issues of fraud or willful default or neglect but the section does not negate the application of the Public Officers (Protection) Act, and in the instant case where the respondent allegedly concluded reassment in March, 2011, this action should have been instituted within 3 months of the completion, citing I.T.F v. N.R.C. (2007) 3 NWLR (Pt. 1020) 28.
It was submitted also that there is nothing in this case to show that the appellant acted in bad faith as the burden of establishing bad faith or that the appellant acted outside the colour of her office is on the respondent who failed to discharge the burden, citing Hassan v. Aliyu (2010) 17 NWLR (Pt. 122) 547.
Appellant’s counsel submitted that an objection under the Public Officers Protection Act can be raised at any stage of the case because it fundamentally affects the jurisdiction of the court and not a mere procedural matter that requires the filing of a statement of defence to be set down for hearing. The cases of Owners of the MV Arabella v. NAIC (2008) All NLR (Pt. 1097) 182 and NDIC v. C.B.N. (2002) 7 NWLR (Pt. 766) 272 were cited in support.
From the foregoing arguments and submissions of learned counsel, this issue substantially centres on whether the respondents action at the trial court has become statute barred by the provision of section 2(a) of Public Officers (Protection) Act.
As I earlier cited from the record of this appeal, the appellant who was served with the writ of summons and the verifying affidavit filed memorandum of conditional appearance and Notice of Preliminary objection, but did not file any notice of intention to defend the action or any affidavit showing a defence thereto.
The grounds for the appellant’s preliminary objection are that;
“1. The jurisdiction of this Honourable Court to entertain the claimant’s suit has been ousted.
2. The claims of the claimant are statute barred.
3. The claimant’s claims constitute an abuse of court process.”
The particulars of the objection are;
1. The Defendant is an agency under Federal Ministry of Agriculture and a creation of statute under section 5 Cap. 276 of the National Science & Technology Act 1990 and enjoys the protection of the Public Officers (protection) Act.
2. The claimant’s cause of action accrued between January, 2005 and December 2008, but the suit was filed on the 27th August, 2012.
3. The present suit was not instituted within three months as allowed under the law.
4. The Honourable Court lacks jurisdiction to entertain the suit.
5. The claimant’s action was filed in abuse of court process.”
After hearing the parties on their written addresses in respect of the Preliminary Objection, the learned trial Judge held as follows on page 66 of the record of appeal;
“Consequently, I hold that the recalcitrant defendant cannot and should not be allowed to hide under the statute bar when on the facts of this case cannot be said to have acted within the law.
Infact the defendant is in breach of her statutory duty under the relevant tax laws by not appropriately operating PAY AS YOU EARN (PAYE) Scheme of her staff for onward remittance of same to the claimant but rather manouvered the machinery of her public office to deprive the claimant of her entitled revenue. In effect I hold that the defence of statute bar is not available to the defendant and her preliminary objection is dismissed as lacking in merit.”

It has been mutually accepted by both parties in this appeal that the appellant being a public institution is “a person” within the definition established by the Supreme Court in the case of Ibrahim v. Judicial Service Committee Kaduna State (supra) and therefore in appropriate circumstances entitled to the protection under section 2(a) of the Public Officers Protection Act. That is the correct position of the law. See also Offoboche v. Ogoja Local Government & Anor (2001) 7 SC 197.

For the purpose of clarity and ease of reference I hereby reproduce the provisions of section 2 of the Public Officers Protection Act as follows:
2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority; or in respect of any alleged neglect or default in the execution of any such Act, Law or authority, the following provisions shall have effect –
a. Limitation Action
The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury within three months next after ceasing thereof.
Thus the Act constitutes a limitation law which is designed to protect public officers from being detracted in the conduct of their official duty by litigation that might have become otiose or in which witnesses may no longer be available due to the time lag. A person whose right has been affected by an act or default done or intended, in the lawful execution of a public duty must commence an action for any redress within three months after such act or default. The implication of a defence under a limitation law is that where an action is statute barred in that it is not instituted within the period stipulated under the law, such an action can no longer be validly instituted or maintained nor proceedings validly conducted thereon as the matter, has become dead and the cause of action has become bare and unenforceable. The court has been divested of its jurisdiction to entertain the action notwithstanding that it is otherwise meritorious. See Ogun State Government v. Dalami Nig. Ltd (2007) All FWLR (Pt. 365) 438; Chighu v. Tonimas (Nig) Ltd (2006) 9 NWLR (Pt. 984) 189; Sanni v. Okene Local Government (2005) 14 NWLR (Pt. 944) 60; Eboigbe v. NNPC (1994) 3 NWLR (Pt. 347) 649; Utih v. Egor (1990) 5 NWLR (Pt. 153) 771 Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt. 504) 237.
However, the preponderance of judicial authorities on the matter of limitation law or Act is that there are recognized exceptions to the general coverage or protection allowed to the person or authority. Thus it must be established that:
(a) The person against whom the action is commenced is a public officer or a person acting in the execution of a public duty;
(b) The act done that has necessitated the commencement of the action is in pursuance or execution of any law, public duty or authority.
In Ibrahim v. JSC (supra), Iguh, JSC stated at page 32 the circumstances in which Public Officers or authorities are covered by the limitation law. He said, “It can therefore be said that section 2(a) of the Public officers (protection) Law 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of that law.
Thus where a public officer acts outside his public duty or outside the colour of his office, a person who has been affected by an act of such a public officer may institute an action in that regard even after the expiration of the limitation period.
In Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2012) 6-7 MJSC (Pt. 111) 149, the Supreme Court stated at pages 181 – 182 that the Public officers (protection) Act is never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice as a result of which the Act has prescribed two “most important exceptions” as follows:
“First, in case of continuance of damage or injury the Act – permits action to be brought on the expiration thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit. See Nwankwere v. Adewumi (1967) NWLR 45 at 49; Anozie v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1095) 278 at 290 – 291”.
As endorsed on the writ of summons filed on 27/8/12, the respondent’s claim is as follows:-
“WHEREOF the claimant’s claim against the defendant is for the outstanding liabilities/debts arising from under-deduction and/or unremitted taxes/levies due to the Kwara State Government, from the defendant’s institution covering the period of January 2005 to December, 2008. The liabilities/debts are as follows:
i. Outstanding PAYE          N41,761.005.49k
ii. Outstanding withholding Tax    N82,181.06.00k
iii. State Development Levy       N57,100.00k
iv. Statutory Penalty at 10%    N4,262,228.66k
v. Statutory interest 21%
(until judgment is given)      N9,845,748.10k
N56,730.263.41k
vi. Interest on the judgment sum at 10% until fully liquidation.
vii. Cost of prosecuting this suit” (underlining done by me for emphasis).
The material facts upon which this claim is based are stated in the verifying affidavit of Joseph Olatunji Abolarin filed with the claim as follows:
“3. It is a notorious fact that the defendant is an Institute of Learning and Research situate at Asa Dam Ilorin, Kwara State within the jurisdiction of this Honourable Court.
4. I know as fact that under the Personal Income Tax Act, Board of Internal Revenue Law and other enabling Laws on Tax in that behalf, there is imposed on the defendant, as a directed employer of labour, the obligation of deducting Pay As You Earn Paye (PAYE) Tax of the members of its staff and remit the deduction to the claimant.
5. The defendant also as a directed employer has the responsibility under the enabling laws to ensure accurate deduction and prompt monthly remittance of withholding Tax accrued in favour of the Kwara State Government to the claimant.
7. It is equally the duty of the defendant, as a directed employer, to deduct N100 per annum on each of its employees as Development Levy and to remit the contributions collected therefrom to the claimant on behalf of and for the Kwara State Government”
9. It is a fact that the defendant have been making some of the deductions and remitting same to the claimant while in some other respect the defendant under deducted and in some other under remitted at did not remit at all to the claimant.
10. Specifically, for the period of 2005 to 2008, there were under deductions or the amount deducted are not remitted wholly or at all by the defendant to the claimant. A certificate signed by one I. O. Yusuf for the chairman, Board of Internal Revenue issued pursuant to section 78 of Personal Income Tax Act stating the amount of Tax due or yet to be paid by the defendant is herewith attached Exhibit B.
11. I know as a fact that pursuant to the relevant laws, the records during the recent Tax Audit and Investigation conducted by the claimant in the institute of the defendant revealed that the defendant has outstanding liabilities/debts in respect of the PAYE, withholding Tax and Development Levy for 2005 to 2008. Letter titled Tax Audit Inspection dated 12/06/2009 is attached as Exhibit C, letter titled Request for Evidence of Tax Remittance dated 20th October, 2010 is attached as Exhibit D and Computer lists of the Staff of the defendant and their Tax Computations for years 2005 – 2008 are attached as Exhibits E, E1, E2, and E3.
12. I equally know and from our records that several letters of demand and/or request for compliance with the relevant laws by payment of the outstanding liabilities/debt were served on the defendant who has denied and cannot deny the liabilities/debts but it has however not settled or complied with the same. Letter of demand titled Assessment Notice on Liabilities for PAYE, withholding Taxes and Development Levies etc (to which exhibit B was attached) is hereby attached and marked as Exhibit F and letters of demand titled- Re: Assessment Notice on liabilities for PAYE, withholding Taxes, Development levied etc for 2005 – 2008 respectively dated June, 24, 2011 and September 19, 2011 are attached as exhibits G and G1.
13. It is also to my knowledge that for the period covering 2005 to 2008, the defendant is Indebted to the claimant in respect of PAYE, withholding Taxes and Development Levies amounting to N41,761,005.49k, N802,181.06k and N59,100.00 respectively and has not settled the liabilities/debts till date despite repeated demand.
17. I know as a fact that the defendant’s willful refusal to pay up its obligatory liabilities/debts has denied the claimant of access to revenue with which to provide basic amenities to the general populace in Kwara State.”

It is noteworthy that the foregoing affidavit evidence has not been denied, challenged, or controverted by the appellant and the settled position of the law is that affidavit evidence that is not denied is deemed admitted, and being unchallenged evidence, the court is not only to accept, but must act on it. See Uzodinma v. Izunaso (2011) 5 (Pt. 1) MJSC 27, Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444; Att. Gen, Ondo State v. Att. Gen. Ekiti State (2007) 17 NWLR (Pt. 706); Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773.
What is involved in the present action is the claim for liabilities/debts allegedly accruing to the respondent from the appellant who has failed, neglected or refused to deduct or remit the taxes stated by the respondent for the period of 2005 – 2008. Ordinarily, this action was taken 3 months after the period of 2005 – 2008 as envisaged by the Public Officers Protection Act, but it has not been denied, as stated in the verifying affidavit which I have extensively quoted that the action or default of the appellant has rendered the government of Kwara State financially incapacitated, and this is an injury that will continue until the sundry taxes/levies are paid. The matter of tax evasion or default constitutes a crucial issue to government all over the world and tax evasion is not a matter to be treated with kid gloves. I consider the failure to pay or remit tax by the appellant as a matter of continuous damage to the government of Kwara State until the taxes end levies are paid.
The foregoing apart, the appellant who has failed for no disclosed reason to deduct or who has under deducted taxes and has failed to remit deducted taxes surely not acted in good faith, within the colour of her office or within its statutory or legal authority to qualify it for protection under the Public Officers (Protection) Act.
I am therefore in unison with the learned trial judge that the appellant is not covered by the protection granted by Section 2(a) of the Public Officers Protection Act.
This issue is accordingly resolved against the appellant.
On the second issue which is whether the appellant’s right to fair hearing has not been reached from the manner the proceeding at the trial court was conducted under Order 23 of Kwara State High Court (Civil Procedure) Rules, 2005, the Learned counsel for the appellant contended that Order 23 of Kwara State High Court (Civil Procedure) Rules (hereinafter called the Rules) governs the proceedings in an action under the undefended list, and the learned trial judge must first scrutinize the claim to ensure that a prima facie case has been disclosed to warrant the case being placed on the undefended list, then the writ will be so marked with a date fixed for hearing of the suit not withstanding that the defendant has not filed a notice of intention to defend. It was contended that the writ of summons with the verifying affidavit served on the appellant was not marked “Undefended List” and was not endorsed, the implication of which is that the claim was not scrutinized to ascertain whether it disclosed a prima facie case, and the case was not ripe for hearing. The case of Enye v. Ogbu (2003) 10 NWLR (Pt. 828) 403 and Ya’u v. City Security Ltd (2003) ALL FWLR (Pt. 165) 498 were cited.
The Learned Counsel argued that the verifying affidavit shows some discrepancies evidenced in the exhibits attached therewith which would have been revealed by a proper scrutiny of the processes and the case would have been transferred to the general cause list for trial on the merit, citing Intermarket Ltd v. Unity Bank (2011) All FWLR (Pt. 584) 187.
It was submitted that an action on the undefended list should be heard only on the date fixed for hearing, as held in Olubusola Stores v. Standard Bank Ltd (1975) 4 SC 51, but in the instant case no hearing date was fixed for the suit at the time judgment was delivered. It was also submitted that the provisions governing trial of cases under the undefended list require strict compliance so as to avoid injustice to the defendant, citing NDIC v. Akahali & Sons Co. Ltd (2004) 6 NWLR (Pt. 869) 245.
The learned counsel contended that the trial court was in error when it treated the appellant’s address in support of it’s preliminary objection as an admission of the respondent’s claim.
As alternative to the objection raised against this issue, the learned counsel for the respondent contended that the proceedings at the trial court was in substantial compliance with Order 23 of the Rules while any non-compliance had been waived by the respondent and no miscarriage of justice was occasioned thereby.
The learned counsel argued that the appellant who was required to file a notice of Intention to defend with affidavit disclosing defence on the merit not later than 5 days before the return date failed to do so, and the suit was adjourned at the instance of the appellant who later filed an objection that the suit was statute barred under section 2 of Public Officers (Protection) Act, and not the hearing of the suit under the undefended list. It was submitted that any omission to endorse the words “Undefended List” on the writ of summons could be that of the trial court and not that of the respondent who did all that the law required, citing CBN v. Adedeji (2004) 13 NWLR (Pt. 890) 226. It was submitted also that failure or omission by the trial court to order that the processes be marked as undefended list even if it occurs is a mere procedural irregularity that should not be allowed to nullify the proceedings, relying on Order 4 Rule (1) of Kwara State High Court (Civil Procedure) Rules, 2005 and Egbo v. Agbara (1997) 1 NWLR (Pt. 481) 293. It was submitted that for a party to vitiate proceedings on the grounds of irregularity it must be shown that a miscarriage of justice was occasioned to that party who must have raised objection to the irregularity before taking any fresh step in the proceedings. The cases of Nwosu v. Imo State Environmental Sanitation Authority &. Ors (1990) 2 NWLR (Pt. 135) 668; Ogunbi v. Kosoko (1991) 8 NWLR (Pt. 210) 511 and Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619.
The learned counsel argued that the appellant who failed to file any notice of intention to defend the action and failed to challenge the originating processes at the trial court cannot now do so in this appeal because this court cannot question the exercise of the trial courts’ discretion or substitute its own discretion for that of the trial court to place a suit for hearing under the undefended list, more so that the discretion had been well exercised by learned trial judge.
It was contended that the appellant who had fair opportunity of being heard, participated fully at the proceedings before the trial Court and made use of the opportunity afforded it to be heard fairly cannot now complain of lack of fair hearing; citing A.N.P.P. v. INEC (2010) 13 NWLR (Pt. 1212) 549.
In the Appellants’ Reply Brief, the learned counsel insisted that the originating processes in the suit were yet to be marked as undefended suit and no hearing date had been fixed therefor when the trial court delivered its judgment and since these primary duties had not been performed by the trial judge, the issue of filing notice of intention to defend within 5 days had not arisen. The leaned counsel submitted that the adjournment of the suit at the trial court was for hearing of the pending motion which was the appellant’s preliminary objection but the trial court after hearing the objection proceeded to deliver judgment in respect of the substantive suit whereby the appellant was taken by surprise. He cited Chiedozie v. Omosowan (1999) 1 NWLR (Pt. 586) 317 and Ekeogu v. Aliri (1991) 3 SCNJ 45.

Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005 provides for hearing of an action under the undefended list where the claim in an action is for recovery of debt or liquidated money demand only and in the claimant’s believe and to the satisfaction of the trial judge, the defendant has no defence to claim on the merit.
For ease of reference and purpose of clarity, I hereby reproduce the relevant Rules of Order 23 as follows:
“1. Where a claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money only and the writ is supported by affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent’s belief, there is no defence to the action, the judge shall if satisfied that there are good grounds for believing that there is no defence there to enter the suit for hearing under what shall be called the undefended list and cause the writ to be marked accordingly and enter thereon a date for hearing.”
Rule 3(1). If the party served with the writ of summons and affidavit delivers to the Registrar not less than 5 days before the day fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may thinks just.”
Rule 4. “Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling upon the claimant to summon witnesses before the court to prove his case formally.”
(underlined by me for emphasis).
Thus, each of the parties in an action under Order 23 of Kwara State High Court (Civil Procedure) Rule 2005, as well as the judge before whom such an action is filed has a duty to perform by virtue of the above provisions. While the claimant who is seeking the hearing of the action under undefended list has to file the writ of summons and support same with an affidavit verifying the facts relied upon for the claim and a deposition that in his belief the defendant has no defence to the action on the merit the judge has the duty, upon being satisfied that there are good grounds for believing that there is no defence to the action to enter the suit for hearing under the undefended list and cause the writ to be so marked with a hearing date entered thereon. The defendant on whom such a writ is served and who intends to defend the action must deliver to the Registrar 5 days before the hearing date, a notice in writing of his intention to defend with an affidavit disclosing a defence on the merit.

The procedure for commencement and trial of an action under the undefended list was explained by the Supreme Court in Bona v. ile Ltd. v. Asaba ile Mill Plc (2013) ALL FWLR (Pt. 669) at 995 1011 per Ariwoola, JSC thus:
“The procedure under the undefended list commences with the plaintiff’s application for the issuance of a writ of summons for a claim for liquidated money demand which application is to be accompanied by an affidavit setting the grounds upon which the claim is predicated and stating that in the belief of the plaintiff or deponent to the affidavit the defendant does not have any defence to the action. It is entirely the duty of the High Court to which the application is made to consider same ex-parte without hearing argument whether to hear the matter under the defended list or transfer same to the general cause list to be dealt with accordingly. Where the court is satisfied and this is subjective if I may say so, that there are good grounds for believing that there is actually no defence to the plaintiff’s claim enters the suit for hearing in the undefended list. The writ of summons will then be marked as such and a date for hearing entered thereon. Thereafter the entire processes are to be served on the defendant who if he desires to defend the action, must deliver to the registrar of the court a notice in writing of his intention to defend the claim. The notice must have attached to it an affidavit disclosing defence on the merit.”
It is clear from the record of this appeal that the appellant who was served with the respondent’s writ and verifying affidavit filed a preliminary objection that the claim of the respondent had been statute barred under section 2 of the Public Officers (Protection) Act, but did not file any Notice of Intention to defend the action on merit, and the learned trial judge after hearing arguments in respect of the objection, dismissed it and delivered judgment in favour of the respondent at the same time.
The complaint of the appellant in this issue is the denial of fair hearing through the procedure adopted by the learned trial judge in the hearing of the suit under Order 23 of the Kwara State High Court (Civil Procedure) Rules.
The right to fair hearing is a fundamental right of every person in Nigeria guaranteed under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. One major attribute of fair hearing is that every party to a dispute before a court or tribunal must be heard before a verdict is returned in favour or against one of the parties.

On the definition of fair hearing and its significance in any trial before any court, the Supreme Court in Ogunsanya v. The State (2011) vol. 6 (Pt. 1) MJSC 24, at pages 60 – 61 per Fabiyi, JSC that “Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause; see Ariori v. Elemo (1983) 1 SCNLR 1”. Also at page 62 of the same judgment Rhodes-Vivour, JSC said:
“Fair hearing and fair trial mean the same thing. According to the provisions of section 36 of the Constitution, a fair trial means that a Judge must ensure that the trial of the case is in accordance with the relevant law and rules of the Court. Anything short of the above the whole trial is vitiated and declared a nullity. See Isiyaku Mohammed v. Kano N. A. (1968) 1 ALL NLR Pg. 42; Unongoo v. Aku (1983) 2 SCNLR p. 332; Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt. 53) Pg. 678.”

The question that comes to mind is how to determine whether there has been fair hearing in a given case. The answer to this poser is founded in the decision of the Supreme Court in Magit v. University of Agriculture, Makurdi (2006) 133 LRCN 46 where Belgore, JSC (as he then was) held at page 51 that:
“Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and conveniences. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
As argued by the appellant and with which the respondent did not fully disagree, the writ of summons in this case which is at page 1 of the record of appeal contains no marking that it is for hearing as an undefended suit and it contains no date of hearing. It therefore runs foul of Order 23 Rule 1 of Kwara State High Court (Civil Procedure) Rules, 2005.
Further, the proceedings at the trial court on pages 50 – 53 of the record shows that the suit came up for the first time on 15/10/2012 when the appellant and counsel were not in court and the case was adjourned to 30/10/2012. On that date, the parties and their counsel were present and upon the information that the parties were “talking on the case,” the court adjourned to 14/11/2012 for hearing apparently for the parties to conclude their discussion. Before the 14/11/2012, the appellant had filed a notice of preliminary objection whereupon the respondent sought an adjournment and the case was adjourned to 12/12/2012 for “hearing of the pending motion”. On that date again, the case was adjourned to 14/12/2012 for “hearing of the pending motion” The motion (preliminary objection) was heard on 14/12/2012 after which the learned judge adjourned to 9/1/13 “for ruling/judgment” and in the judgment delivered on 9/1/13, the learned trial judge dismissed the preliminary objection and delivered judgment in favour of the respondent on the basis that the appellant had not filed a Notice of Intention to defend.
It is therefore apparent from the record of appeal that the case was not fixed for hearing after the filing of the preliminary objection, and it is also clear that on 14/1/12, the only business fixed for the court was the hearing of that preliminary objection which was heard by the court.
It is not in doubt that the object of proceedings under the undefended list is to fast track the hearing and disposal of cases where the claim is for debt or liquidated demand without the rigours of pleadings and long adjournments in instances where the defendant does not have a defence but has set out to delay the hearing of the case. See Ataguba & Co. v. Gura Nig. Ltd. (2005) 2 SC 101; Nwankwo v. Ecumenical Development Co-operative Society; U.A. (2007) 5 NWLR (Pt. 1027) 377 and Okoli v. Morecab Finance (Nig.) Ltd (2007) 4-5 SC 116.
The need for this speedy trial even under the undefended list should not be employed to disregard applicable principles of law and rules of courts, as in this case where the case was fixed for hearing of the pending motion on 14/12/12. A court must restrict itself to the business it has set for a case in any particular date see Olubusola Stores v. Standard Bank Nigeria Ltd. 1975 NSC 135. Order 23 Rule 4 of Kwara State High Court Civil Procedure Rules, 2005 provides that where a defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit “shall be heard” as an undefended suit. This provision without doubt requires that the suit be heard on a date fixed for hearing.
I am convinced from the foregoing that the trial court failed to strictly comply with the law and procedural rules guiding the hearing of this action under the undefended list and the right of the appellant to fair hearing was clearly breached by that failure which has occasioned a miscarriage of justice.
In my humble view, the learned trial judge would have afforded the appellant an opportunity of being heard on the substantive action by adjourning the suit after dismissing the appellant’s objection and now fix the suit for hearing and judgment thereupon where the appellant still failed to file a Notice of Intention to defend as required under Order 23 Rule 4 of the Rules.
I agree with the appellant on this issue, the consequence of which is that the trial of the case is a nullity and I so hold with the result that this suit will be remitted for trial de novo, and the effect of this order I am bound to make is that it has become unnecessary for me to decide the third issue which has substantially raised matters that are to be determined at the hearing of the suit.
This appeal therefore succeeds on issue 2 and it is allowed. Suit No: KWS/224/2012 is remitted to the Hon. Chief Judge of Kwara State for hearing de novo by a Judge of that High Court other than Hon. Justice I. B. Garba who had previously heard the case.
I make no order as to cost.

HUSSEIN MUKHTAR, J.C.A.: The scenario whereby the learned trial judge proceeded to enter judgment on the undefended list immediately after ruling on the preliminary objection challenging the competence of the suit filed against the Appellant was fundamentally irregular as it effectively deprives the appellant its right to be heard in the action. That mistake has resulted in a procedural irregularity which involved the infringement of the Appellant’s right to fair hearing. It is a well settled principle of law that any infringement of the right to fair hearing renders the proceedings a complete nullity. See Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Alabi v. Amoo (2003) 12 NWLR (Pt. 835) 537. The Supreme Court in Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771 held per Iguh, JSC thus:
“There can be no doubt fair hearing is most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Once there has been a denial of fair hearing as guaranteed under section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, as amended, the whole proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587, Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572.”
In a more recent decision of the Supreme Court in Victino Fixed Odds Ltd. v. Ojo (2010) 8 NWLR (pt 1197) 489, Fabiyi, JSC observed thus:
“A denial of right to be heard is a breach of constitutional right, natural justice and rules of court. Such cannot and ought not be condoned in any respect. See Otapo v. Summonu (1987) 2 NWLR (Pt. 58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial judge or court has heard both sides in the conflict see Deduwa v. Okorodudu (1976) 9-10 S.C. 329”.
I am of the view that the defect in the proceedings whereby judgment was entered without affording the Appellant the slightest chance to be heard renders the judgment thereby entered null and void. It has to be struck out.
For the foregoing and the more detailed reasons in the lead judgment of my learned brother Isaiah Olufemi Akeju, JCA with which I am in full agreement, the appeal is meritorious and accordingly succeeds. It is hereby allowed by me. I adopt the consequential orders made in the judgment.

UCHECHUKWU ONYEMENAM, J.C.A.: In adding words to the judgment just delivered which draft I had earlier read, I will start by reiterating the primary goal of the Public Officers Protection Act. The aim of the Act is to protect public officers who have acted according to the duties of their office from being harassed with time worn claims and proceedings. This is necessary for the fact that a public officer is an agent of the government. The government being a public officer’s employer and a disclosed principal; a public officer is not personally liable for any act done by him in the course of executing his official duties. The reason is simple, which is, any wrong done by a public officer in the course of the performance of his official duty is a wrong committed by his employer, the government. See: Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 684) 1 SC.
The fact that the Appellant is an agency under the Federal Ministry of Agriculture and a creation of statute which enjoys the protection of the Public officers Protection Act is not in dispute. It is also not in dispute that the cause of action accrued between January, 2005 and December, 2008 but the suit was filed on 27th August, 2012. It is clear therefore that the suit at the trial court was instituted well over three (3) months as allowed by the Act.
Prima facie the action against the Appellant at the trial court should be adjudged statute barred thereby ousting the jurisdiction of the trial court. However embedded in the provision of Section 2 of the Public Officers Protection Act are exceptions to the general rule that an action cannot be brought against a public officer after 3 months of the cessation of the act complained of.
A plaintiff can defeat the claim of a defendant who seeks to rely on the Public Officers Protection Act by proving that the defendant was not really intending to act in pursuance of the statutory authority but that in the execution of his authority he had improper motive such as spite, personal interest of any purpose entirely outside statutory jurisdiction. Once a plaintiff is able to prove the existence of dishonest motives and lack of honest desire to execute the statute, the said public officer will not be availed by the Protection Act. See: Egbe v. Alhaji (1990) NWLR (Pt. 128) 546. Let me state conclusively therefore that the Public Officers Protection Act does not automatically bar action against a public officer. It only protects public officers who at all material times acted within the confines of their public duty. The umbrella of Public Officers Protection Act covers any officer who has not stepped outside the bounds of his public authority by acting outside the colour of his office, employment, statutory or constitutional duty. Once a public officer acts outside the colour of his office, he steps outside the coverage of the protection law and stands against the rough weather of actions against him from which the protection umbrella had shielded him from. See: Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Ekeogu v. Aliri (1991) 3 NWLR (pt. 179) 258; Ibrahim v. J.S.C. (Supra).
The Appellant in her written address in support of her preliminary objection summed up the claim of the Respondent thus: “By the court process dated 27th August 2012 and filed on same day, the claimant brought an action against the Defendant claiming outstanding PAYE, outstanding withholding tax and state development levy covering the period of January 2005 to December 2008. See page 28 paragraph 1.1 of the record.
The Appellant also referred to paragraphs 4, 5, 7, 9 and 10 of the Respondent’s verifying affidavit in support of the writ of summons to argue that the Respondent’s allegations against the Appellant rest on unsatisfactory or non performance of a statutory duty or obligation of deduction and remittance of taxes and levies between 2005-2008. Accordingly, the Appellant submitted that since the allegation emanated from the cause of Appellant’s performance of public duty or obligation, the action was statute barred.
There is need to reproduce the paragraphs of the verifying affidavit referred to by the Appellant for clarity and ease of understanding. The paragraphs are as below:
Paragraph 4: I know as fact that under the Personal Income Tax Act, Board of Internal Revenue Law and other enabling Laws on Tax in that behalf there is imposed on the defendant, as a directed employer of labour, the obligation of deducting Pay As You Earn (PAYE) Tax of the members of its staff and remit the deduction to the claimant.
Paragraph 5: The defendant also as a directed employer has the responsibility under the enabling laws to ensure accurate deduction and prompt monthly remittance of Withholding tax accrued in favour of the Kwara State government to the claimant.
Paragraph 7: It is equally the duty of the defendant, as a directed employer, to deduct N100 per annum on each of its employees as Development Levy and to remit the contributions collected therefrom to the claimant on behalf of and for the Kwara State government.
Paragraph 9: It is a fact that the defendant have been making some of the deductions and remitting same to the claimant while in some other respect the defendant under-deducted and in some other under-remitted or did not remit at all to the claimant.
Paragraph 10: Specifically, for the period of 2005 to 2008 there were under-deductions or the amount deducted are not remitted wholly or at all by the defendant to the claimant. A certificate signed by one I. O. Yusuf for the Chairman, Board of Internal Revenue issued pursuant to section 78 of Personal Income tax Act, stating the amount of Tax due or yet to be paid by the defendant is herewith attached as Exhibit B.
Restricting myself to these paragraphs although more revealing facts exist in other paragraphs, the argument of the Appellant stated above cannot stand. The contention does not flow from the paragraphs reproduced above.
From the paragraphs it is established that the Appellant whose duties as directed employer of labour includes:
– deduct Pay As you Earn (PAYE) Tax of the members of its staff and remit same to the Respondent;
– to ensure accurate deduction and prompt monthly remittance of withholding Tax accrued in favour of the Kwara State Government to the Respondent;
– deduction of N100 per annum on each of its employees as Development Levy and to remit the contributions to the
Respondent on behalf of and for Kwara State;
stepped outside its duty to under deduct, under – remit and absolute non remittance in some cases of deductions made to the injury of the Respondent. The Appellant whose duty it was to deduct and remit specified amount to the Respondent, without any legal reason acted outside its statutory duty by deducting amount outside the bounds of its public duty and not remitting deductions made in accordance with its statutory duty. The acts outside the colour of its office was brought to the attention of Appellant via Exhibit B – A certificate signed by Mr. I. O. Yusuf for the chairman, Board of Internal Revenue issued pursuant to Section 78 of Personal Income Tax Act. The Appellant did not desist but continued to withhold the deductions meant to be remitted to the Appellant.
I have no reservations in concluding that the acts of the Appellant from the affidavit evidence relied upon by it shows that the Appellant in the execution of its public duty did not at all material times act within the confines of its public duty. Rather I hold that the Appellant from the affidavit evidence had ulterior motive and acted maliciously in pursuance of or execution of its public duty. Accordingly, though a public officer, the Appellant by its acts outside the colour of its office had a gradual slide outside the umbrella of the Public Officers Protection Act. The Act, in the circumstances of this case cannot protect the Appellant.
I therefore agree with the learned trial Judge that the action against the Appellant is not statute barred. The trial court was right when it dismissed the Appellant’s preliminary objection as lacking in merit.
For what I have said above and for the fuller reasons elaborated in the lead judgment, I agree with my learned brother ISAIAH OLUFEMI AKEJU, JCA that the preliminary objection was rightly dismissed by the learned trial judge. I equally agree with the conclusion of the lead judgment that the proceedings and judgment of the trial court is a nullity. I also allow the appeal in part and set aside the judgment of the High Court of Kwara State, Ilorin Division delivered on 14th January, 2012 in Suit No: KWS/224/2012. I abide by the consequential orders made in the lead judgment.