NIGERIAN AGIP OIL COMPANY LIMITED v. DELTA STATE ENVIRONMENTAL PROTECTION AGENCY
(2019)LCN/12670(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/B/258/2014
RATIO
LAW: THE DOCTRINE OF COVERING THE FIELD
“The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted in which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly by the purported exercise of its legislative powers enacted a law, which an Act of the National Assembly has already made provisions covering the subject matter of the State Law. In both situations, the doctrine of covering the field will apply because of the ‘Federal might’ which relevantly are the Constitution and the Act. In humble view, a State Law which is not necessarily inconsistent with either the Constitution or an Act of the National Assembly but merely covers the legislative field of the National Assembly is not harmful as it is merely a surplusage. In line with the decision of Eso, JSC, inA.G; Ogun State (supra), such a law of a State House of Assembly is in abeyance and inoperative and could be revived and becomes operative if for any reason the Federal legislation is repealed. See also: Lakanmi v. A.G. Western Region (1970) NSCC 143 at 144; Osun State Government v. Estisione H. (Nigeria) Ltd. & Anor. (2012) LPELR -7936 (00 at 33 – 34 B-B.)” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
WORDS AND INTERPRETATION: THE MEANING OF ‘TAX’ AND ‘LEVY’
“The word ‘tax’ means simply money paid to the government so that It can pay for public services’ – Oxford Advanced Learner’s Dictionary, page 1227. ‘Levy’ means ‘an extra amount of money that has to be paid, especially as a tax to the government’ Advanced Learner’s Dictionary, page 681. In legal terms ‘tax’ means: ‘A charge, usu. Monetary, imposed by the government on persons, entities, transaction, or property to yield public revenue. Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and exercise. Although a tax is often thought of as being pecuniary in nature, it is not necessarily payable in money.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
NIGERIAN AGIP OIL COMPANY LIMITED Appellant(s)
AND
DELTA STATE ENVIRONMENTAL PROTECTION AGENCY Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The respondent – Delta State Environmental Protection Agency, was the claimant in Suit No. RCU/151/2012 instituted in the Revenue Court, Ughelli Judicial Division, holden at Ughelli. On the 27th day of November, 2012, judgment was entered in favour of the respondent. The appellant was not satisfied with the decision of the trial Revenue Court and appealed to the High Court of Delta State. The High Court of Delta State, Ughelli Judicial Division, sitting at Ughelli in its appellate jurisdiction delivered judgment in Suit No. UHC/1A/2013 on the 3rd day of March, 2014 wherein it dismissed the appeal and affirmed the judgment of the Revenue Court. Not satisfied with the judgment of the lower Court, the appellant filed a notice on 03/03/2014 and the said notice of appeal is on pages 83 to 85 of the record of appeal.
In his brief, filed on 15/07/2014, learned counsel for the appellant formulated a sole issue for determination:
Whether Section 8(f) of the Delta State Environmental Protection Agency Law, 2006 which imposes the effluent discharge fee is not void for being inconsistent with the provisions of the Taxes and Levies (Approved List for Collection) Act, Cap. T2, Laws of the Federation, 2004 (Revised Edition).
The amended respondent’s brief was filed on 06/07/2017 and in it, the respondent raised and argued a preliminary objection. The respondent also identified a sole issue in respect of the appeal as follows:
‘Whether the Court below was right in its decision that Section 8(f) of the Delta State Environmental Protection Agency Law Cap. D16 Vol. 2, Laws of Delta State, 2006 is not inconsistent with the provisions of the Taxes and Levies (Approved List for Collection) Act, Cap T2, Laws of the Federation of Nigeria, 2004.’
PRELIMINARY OBJECTION
By its preliminary objection, the respondent formulated a lone issue as follows:
‘Whether this Court can exercise jurisdiction to entertain this suit in view of the appellant failure to obtain leave of the lower Court or this Court before the Notice of Appeal was filed.’
Learned counsel for the respondent argued that an appeal from the decision of Delta State High Court, sitting in its appellate jurisdiction does not lie to the Court of Appeal as a right. He submitted that the appellant ought to have obtained leave of Court before filing its appeal and, since no leave was obtained, the appeal is ‘incompetent ab initio and the appellate Court has no jurisdiction to entertain and determine such appeal’. In support of his submission, learned counsel cited and relied on several authorities.
In his reply, learned counsel for the appellant submitted that this appeal involves questions of law alone and no leave of court is required. Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:
241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a)
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
The above constitutional provision is clear and unambiguous and it has been interpreted in many cases. In the case of Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd. (2016) 16 NWLR (Pt.1539) 335 at 382 – 383, per Ogunbiyi, JSC; the Supreme Court re-echoed how to determine a ground of law by stating as follows:
‘On when a ground of appeal involves a question of law alone therefore, the following principles and guidelines are relevant: –
(1) Where the ground of appeal reveals a misunderstanding of the position of the law by the Court below.
(2) Where the ground deals exclusively with the misapplication of the law and the law alone to the exclusion of facts.
(3) Where the ground complains about the interpretation of the law by the Court below and in the case the interpretation of the law should not involve the exercise of the discretionary power of the Court below. This is because once a Court of law exercises a discretionary power in the interpretation process, the position in most cases is no more that of law alone but becomes one of mixed law and fact.
(4) Where the facts of a case are not in dispute and formally admitted and the issue of law is based on authoritatively pre-determined principles of law. See Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210 at 227 ? 228. See also Ibrahim v. Habu (1993) 5 NWLR (Pt. 295) 570 at 577-578.’
In this case, the appellant?s notice of appeal covers pages 83 to 85 of the record and it contains only one ground as follows:
GROUND ONE
The lower Court erred in law when it held that the Delta State Government has the power to demand effluent discharge fee from the appellant notwithstanding the provisions of the Taxes and Levies (Approved List for Collection) Act, Cap. T2, Laws of the Federation of Nigeria, 2004
PARTICULARS OF ERROR
1. The provisions of Delta State Environmental Protection Agency Law which imposes the payment of effluent discharge fee are contrary to the Taxes and Levies (Approved List for Collection) Act, Cap. T2 Laws of the federation of Nigeria, 2004 and, consequently, void.
2. The Delta State Government lacks the power to impose or collect any tax or levy outside the list in Part II of the Schedule to the Taxes and Levies (Approved List for Collection) Act, Cap. T2, Laws of the Federation, 2004.
The sole ground in the appellant’s notice of appeal involves questions of law alone, because it deals exclusively with an alleged misapplication, misinterpretation or misunderstanding of law by the lower Court.
Since the appeal involves a ground of law alone, the appellant can appeal as of right without any leave of Court.
The respondent’s preliminary objection lacks merit and it is hereby dismissed.
SUBSTANTIVE APPEAL
Learned counsel for the appellant submitted that it is the Taxes and Levies (Approved List for Collection) Act, Cap. T2, Laws of the Federation of Nigeria, 2004 ‘that governs and determines the appropriate tier of government or body to which specific sorts of taxes/levies are payable’. He argued that under Part II of the Schedule to the Taxes and Levies Act the taxes and/or levies payable to State Government are clearly outlined and that the list does not include ‘Effluent discharge Fee’.
In urging the Court to resolve this issue in favour of the appellant, learned counsel submitted, inter alia, as follows:
‘The power of the States to impose taxes is subject to the rule of inconsistency under Section 4(5) of the Constitution and the doctrine of covering the field. A community reading of Section 4 (5) with the provisions of Paragraphs 7 & 9, 2nd Schedule of the Constitution, would lead to the irresistible conclusion that the Taxes and Levies Act has covered the field, and in the event of the conflict between the Delta State Environmental Protection Law and the Taxes and Levies Act, the federal statute would prevail. Where the Taxes and Levies Act has expressly set out the scope or heads of taxes to be collected by the State Governments, any attempt by the State Governments to unilaterally expand the scope will be inconsistent and at conflict with the Taxes and Levies Act.’
After a comprehensive reply to the points raised in the appellant’s brief, learned counsel for the respondent submitted as follows:
‘In the final analysis, we urge this Honourable Court to dismiss the appeal and uphold the decision of the Court below, which Court also upheld the decision of the trial Court for amongst others, the following reasons:
1.The taxes and Levies (Approved List for Collection) Act, Cap. T2 of the Laws of the Federation of Nigeria, 2004 is not an exhaustive representation of the tax attributed for collection across Nigeria.
2. Effluent Discharge Fee as stated in Section 8(f) of the Delta State Environmental Protection Agency Law Cap. D16 Vol. 2, Laws if the Delta State, 2006 is a residual matter for which the Delta State House of Assembly has the exclusive legislative competence to legislate upon.
3. Section 8(f) of the Delta State Environmental Protection Agency Law Cap. D16 Vol. 2, Laws of the Delta State, 2006 is valid and constitutional and not inconsistent with the Taxes and Levies (Approved List for Collection) Act Cap. T2 of the Laws of the Federation of Nigeria, 2004.
The appellant’s complaint relates to Section 8(f) of the Delta State Environmental Protection Agency Law Cap. D16 Vol. 2, Laws of the Delta State, 2006, which provides thus:
“8. Powers of the Agency
In carrying out its function under this Law, the Agency shall have power to –
(a) …
(b) …
(c) …
(d) …
(e) …
(f) issue effluent discharge permits annually to industries, and users of generating plants, upon demand and collection of effluent discharge fees as specified in the Schedule to this Law;”
The appellant argued that ?effluent discharge permits? and ?effluent discharge fees? are unknown to the Taxes and Levies (Approved List for Collection) Act, Cp. T2, Laws of the Federation of Nigeria, 2004 which covers the field of taxes and levies to be collected by the Federal Government, a State Government and a Local Government.
Section 1(1) of the Taxes and Levies (Approved List for Collection) Act, 2004 provides as follows:
1. Responsibility for collecting certain taxes, and levies, etc.
(1) Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979, as amended, or in any other enactment or law, the Federal Government, State Government and local government shall be responsible for collecting the taxes and levies listed in Part I, Part II and Part III of the Schedule to this Act, respectively.
In part II of the Schedule to the Taxes and Levies Act, the Taxes and Levies to be collected by a State Government in Nigeria are specified as follows:
Taxes and Levies to be collected by the State Government
1. Personal income tax in respect of
(a) Pay-As-You-Earn (PAYE); and
(b) direct taxation (self-assessment).
2. Withholding tax Individuals only).
3. Capital gains tax (individuals only).
4. Stamp duties on instruments executed by individuals.
5. Pools betting and lotteries, gaming and casino taxes.
6. Road taxes.
7. Business premises registration fee in respect of –
(a) urban areas as defined by each State, maximum of-
(i) N10,000 for registration; and
(ii) N5,000 per annum for renewal of registration; and
(b) rural areas
(i) N2,000 for registration; and
(ii) N1,000 per annum for renewal of registration
8. Development levy (individuals only) not more than N100 per annum on all taxable individuals.
9. Naming of street registration fees in the State Capital
10. Right of Occupancy fees on lands owned by the State Government in urban areas of the State.
11. Market taxes and levies where State finance is involved.”
The word ‘tax’ means simply money paid to the government so that It can pay for public services’ – Oxford Advanced Learner’s Dictionary, page 1227.
‘Levy’ means ‘an extra amount of money that has to be paid, especially as a tax to the government’ Advanced Learner’s Dictionary, page 681.
In legal terms ‘tax’ means:
‘A charge, usu. Monetary, imposed by the government on persons, entities, transaction, or property to yield public revenue. Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and exercise. Although a tax is often thought of as being pecuniary in nature, it is not necessarily payable in money.
See Black’s Law Dictionary, Deluxe Ninth Edition, page 1594.
‘Levy’ legally means ‘The imposition of a fine or tax; the fine or tax so imposed’ ?Blacks’ Law Dictionary, Deluxe Ninth Edition, page 991.
‘From its definition and meaning tax is an important means of sustaining the government, so that public services can be provided, paid for and maintained. Therefore, the assessment and responsibility for collection of taxes are usually delineated and regulated by statutes, which are strictly interpreted by the Courts. That explains why in the case of Alhaji Ibrahim Ahmadu & Anor. v. The Governor of Kogi State & 2 Ors. (2002) 2 NWLR (Pt. 755) 502 at 522, per Oduyemi, JCA, this Court held and stated, inter alia, as follows:
‘It is well settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language because in some degree they operate as penalties; the subject, is not to be taxed unless the language of the statute clearly imposes the obligation. Russell v. Scott (1948) A.C. 422 per Lord Simonds. Language must not be strained in order to tax a transaction which had the legislature thought of it, would have been covered by appropriate words.
In a taxing legislation, 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 about a tax. Nothing is to be read in and nothing is to be implied, one can only look fairly at the language used. But the strictness if interpretation may not always enure to the subject?s benefit, for ‘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’ per Lord caims in Partington v. Attorney-General (1869) L.R. 4 H.L. 100 at p. 122.’
The Taxes and Levies (Approved List for Collection) Act, 2004 is a competent existing Act of the National Assembly, which has covered the field in respect of the tier of government to collect taxes and or levies on effluent or sewage. See Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (2018) 7 NWLR (Pt. 1619) 518 at 543 – 544, per Kekere-Ekun, JSC, where the Supreme Court re-echoed the doctrine of covering the field by stating as follows:
‘In INEC v. Musa (2003) 3 NWLR (Pt.806) 72 at 204 – 205 H-B; (2003) LPELR 1515 (SC) at 108 C – F, the circumstances in which the doctrine of covering the field might arise was explained thus:
The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted in which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly by the purported exercise of its legislative powers enacted a law, which an Act of the National Assembly has already made provisions covering the subject matter of the State Law.
In both situations, the doctrine of covering the field will apply because of the ‘Federal might’ which relevantly are the Constitution and the Act.
In humble view, a State Law which is not necessarily inconsistent with either the Constitution or an Act of the National Assembly but merely covers the legislative field of the National Assembly is not harmful as it is merely a surplusage. In line with the decision of Eso, JSC, inA.G; Ogun State (supra), such a law of a State House of Assembly is in abeyance and inoperative and could be revived and becomes operative if for any reason the Federal legislation is repealed.
See also: Lakanmi v. A.G. Western Region (1970) NSCC 143 at 144; Osun State Government v. Estisione H. (Nigeria) Ltd. & Anor. (2012) LPELR -7936 (00 at 33 34 B-B.)
In his contribution, His Lordship, Okoro, JSC, said on the doctrine of covering the field as follows:
The doctrine of covering the field is essentially that where the main, principal or superior law has covered a given field or area, any other subsidiary law made in that area or field cannot operate side by side with the main, principal or superior law. If the inferior law is inconsistent with the principal law, it has to be declared void to the extent of its inconsistency. But where it is consistent with the principal law, it has to be left in abeyance i.e. inoperative pending when the principal law may give way. See Saraki v. Federal Republic of Nigeria (2016) LPELR 40013 (SC); (2016) 3 NWLR (Pt. 1500) 531; MPPP v. INEC & Ors. (No.2) (2015) LPELR 25706 (SC); (2015) 18 NWLR (Pt.1491) 251; A.G. Abia State & Ors. v. A.G. of the Federation (2002) LPELR 611 (SC), (2002) 6 NWLR (Pt. 763) 264. This Court, in A.G. of Ogun State v. A.G. of Federation (1982) LPELR 11 (SC), (1982) 2 NCLR 166; per Fatayi-Williams, JSC (as he then was) held on this issue as follows:
It is of course, settled law, based on the doctrine of covering the field with which I shall deal in more detail later, that if Parliament and a Regional Legislature are empowered to make laws, and a Regional legislature enacts an identical law on the same subject matter, the law made by Parliament shall prevail. That made by the Regional legislature shall become irrelevant and therefore impliedly repealed.
See Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (supra) at 556.
A careful reading of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) shows clearly that collection of taxes and levies, save as specified by Item 59 of the Exclusive Legislative List of the Second Schedule to the Constitution, is a matter under the Concurrent Legislative List.
The Taxes and Levies (Approved List for Collection) Act, 2004 is a statute of national application and it applies to the Federal Government of Nigeria, each State Government and every Local Government in Nigeria.
‘Under Item 18 Part III of the Schedule to the Taxes and Levies (Approved List for Collection) Act, 2004, ?Public convenience, sewage and refuse disposal fees? fall within the category of taxes and levies to be collected by a local government and not a State government.
For the avoidance of doubt, ‘effluent’ ordinarily means ‘liquid waste, especially chemicals produced by factories, or SEWAGE? Oxford advanced Learner’s Dictionary. page 372.
The respondent, being an agency of Delta State Government has no power or right to demand and/or collect ‘effluent discharge fees’ from the appellant in view of the clear provisions of Item 18, Part III of the Schedule to the Taxes and Levies (Approved List for Collection) Act, 2004. It will amount to double taxation if the provisions of Section 8(f) of the Delta State Environmental Protection Agency Law, 2006 are allowed to stand side by side or operate simultaneously with those of Part III of the Schedule to the Taxes and levies (Approved List for Collection) Act, 2004. The law abhors the imposition of double taxation. See Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (supra).
The law is settled that if any law made by a State House of Assembly is inconsistent with an Act of the National Assembly, the State law, to the extent of the inconsistency, shall be void as the Act of the National Assembly shall prevail. See Section 4(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (supra).
Without more ado, I resolve the lone issue in this appeal in favour of the appellant and against the respondent.
The appeal succeeds and it is hereby allowed.
Accordingly, the judgments of the two lower Courts are hereby set aside on the ground that Section 8(f) of the Delta State Environmental Protection Agency Law, 2006 is invalid for being inconsistent with the provisions of the Taxes and Levies (Approved List for Collection) Act, 2004.
There is no order for costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, MOORE A.A. ADUMEIN JCA. I agree with the reasoning and conclusion contained therein. I also hold that the appeal succeeds and it is hereby allowed. I abide by the consequential orders made in the leading judgment including order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
Appearances:
Innocent Ekpen, Esq., (holding brief for) T.J. Krukrubo, Esq. For Appellant(s)
O.F. Enenmo Esq., (Director of Appeals, Ministry of Justice, Delta State) and E.E. Erebe, Esq., (Assistant Director, Ministry of Justice, Delta State) For Respondent(s)
