OYO STATE BOARD OF INTERNAL REVENUE v. UNIVERSITY OF IBADAN (2013)

OYO STATE BOARD OF INTERNAL REVENUE v. UNIVERSITY OF IBADAN

(2013)LCN/6558(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/I/81/2010

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

OYO STATE BOARD OF INTERNAL REVENUE Appellant(s)

AND

UNIVERSITY OF IBADAN Respondent(s)

RATIO

WHETHER OR NOT WHERE A PUBLIC OFFICER ACTS OUTSIDE THE SCOPE OF HIS AUTHORITY, HE CAN CLAIM PROTECTION OF THE PROVISIONS OF THE PUBLIC OFFICERS PROTECTION ACT

Where a public officer does the contrary therefore, the limitation period of three months does not apply. In other words, the Act only protects a public officer who does his public duty in the proper and expected way or who neglected or defaulted in doing the public duty in the expected manner. It is not to protect a public officer who for example, steals public funds, since stealing of public funds cannot be an act done in pursuance or execution or intended execution of any Act, Law or public duty.
The Supreme Court per Onnoghen JSC put it this way in the case of Alhaji Jibrin Bala Hassan vs. Dr. Mu’azu Babangida Aliyu & Ors (2010) 17 NWLR Part 1223 p.547 at p.591.
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provision of the Public Officers Protection Act”. PER DANIEL-KALIO, J.C.A.

DEFINITION OF THE WORD “PERSON”

THE CARDINAL RULE FOR INTERPRETATION OF THE TITLE OR HEADING OF AN ACT

I have said that even the title or heading of the Act gives away its purpose or intention. While it is a cardinal rule of interpretation that a heading cannot control the plain words of a statute, headings can be relied upon to clarify ambiguity. See Ogbonna vs. A.G. Imo State (1992) NWLR part 220 p.647 at 653. I think that there is a latent ambiguity in Section 2(a) of the Public Officers Protection Act otherwise, it would not have been the subject of many conflicting decisions over the years. I grant however that the Supreme Court has now clarified the position of the law, see Ibrahim vs. Judicial Service Committee & Anor. (1998) LPELR 1408 (SC) p.19 and that by that clarification, the protection under the Public Officers Protection Act extends to public bodies such as the Respondent. I am most definitely bound by the Supreme Court. PER DANIEL-KALIO, J.C.A.

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): Whether the matter before the lower court is statute barred by reason of the Public Officers Protection Act is the subject matter of this Appeal. The facts which gave rise to the action before the lower court (the High Court of Oyo State) in summary are as follows:

For some years, 2003 to 2006 to be precise, the University of Ibadan (the respondent in this appeal and the defendant in the lower court) failed to pay over to the Government of Oyo State (the Appellant in this appeal and the plaintiff in the lower court) amounts due it under the Pay As You Earn Scheme and in respect of Development Levy. Over the period under reference, the sum of N1,932,255,271.66 had become due to the Appellant. In 2008 the Appellant filed an Originating Summons dated 9/7/2008 in a bid to recover the amount owed it. The Respondent filed a Notice of Preliminary Objection to the Originating Summons on the grounds inter-alia, that the action was statute barred by reason of the Public Officers Protection Act.
In a ruling delivered on 22/6/2009, the lower court agreed that the action was statute barred by virtue of the Public Officers Protection Act, having not been instituted within the period of 3 months prescribed under the Act.
Aggrieved by that ruling, the Appellant filed a Notice of Appeal on 10/7/2009 wherein it gave three grounds why it felt the learned trial judge was wrong in his ruling. The grounds without the accompanying particulars are as follows:

1. The learned trial judge erred in law when he held that by virtue of Section 2(a) of the Public Officers Protection Act, the suit of the plaintiff is statute barred against the defendant.

2. The learned trial judge erred in law when he held that fraud was not in issue in the case and that fraud was not specifically pleaded by the plaintiff.

3. The learned trial judge misdirected himself when he held that “Mr. Ibironke did not cite the provisions of the law which permits the plaintiff to go back 6 years”.

In the Appellant’s Brief of Argument dated and filed on 2/7/2010, three issues were formulated for determination in this appeal. The issues are –

1. Whether the lower court was right to have, in its ruling of 22nd June 2009, held that by virtue of Section 2(a) of the Public Officers Protection Act, the suit of the plaintiff is statute barred against the defendant.

2. Whether the learned trial judge was right in his ruling of 22nd June 2009 when he held that fraud was not in issue in the case and that fraud was not specifically pleaded by the Appellant.

3. Whether Section 2(a) of the Public Officers Protection Act would apply in the light of the provision of Section 55 of the Personal Income Tax Act.

The Respondent in its Brief of Argument filed on 16/3/11 but deemed as properly filed and served on 9/3/11 adopted ipsissima verba, the issues as formulated by the Appellant. It is apposite to state here that the Appellant filed a Reply Brief on 12/4/11. All the Briefs of Argument were adopted in court on 14/10/2013. Appellant’s case was argued by Bamidele Ibironke, while the case of the Respondent was argued by A.S. Ajayi Esq.

On Issue 1 which is whether the lower court was right to have held that the action was statute barred by virtue of Section 2(a) of the Public Officers Protection Act, Appellant’s Counsel submitted that the issue is distilled from ground 1 of the Notice of Appeal. We were referred to the provisions of Section 2 of the Public Officers Protection Act Cap. P.41, Laws of the Federation of Nigeria. While Learned Counsel agreed that the Section does not allow for an action against a Public Officer, after three months of the act complained of, he submitted that the provision only protects a public officer who acts in absolute good faith and does not apply to acts done in abuse of office and which have no semblance of legal justification. He referred to Central Bank of Nigeria vs. Aite Okojie (2004) 10 NWLR part 882 p.488 at 498; University of Ilorin vs. Adeniran (2007) 6 NWLR part 1031 p.498 at 506; Ibeto Cement Co. Ltd. vs. A. G. of the Federation (2008) 1 NWLR part 1069 p.470 at 480; Fred Egbe vs. Hon. Justice Babatunde Belgore (2004) 8 NWLR part 875 p.336 at 342; Offoboche v. Ogoja L.G. (2001) 16 NWLR Part 739 p.458.

It was submitted that it is the duty of the Respondent to deduct PAYE Tax and Development Levy from staff salaries of the Respondent and to remit same to the Appellant. It was contended that the non-remittance of the tax deductions by the Respondent was not in good faith and is contrary to the requirement of the law. It was urged on us that the Respondent cannot benefit from his wrong doing. The case of Sanni vs. Okene L.G. Traditional Council (2005) 14 NWLR part 944 p.60 at 67 was cited in support. It was urged that a party cannot be allowed to take advantage of the limitation law where there is compelling evidence of fraud. The following cases were cited in support: Anwadike vs. Administrator-
General of Anambra State and Public Justice (1996) 7 NWLR part 460 p.315; Arowolo vs. Ifabiyi (1995) 8 NWLR part 414 p.496 at 498; The Administrators/Executors of the Estate of General Sanni Abacha vs. Samuel David Eke-Spiff (2003) 1 NWLR part 800 p.114 at 127.

Learned Counsel submitted that the Public Officers Protection Act is to protect public officers from the general public and not to protect a public officer from another public officer.
Learned Counsel referred to the provision of Section 55 of the Personal Income Tax Act and submitted that the provision empowers the Oyo State Board of Internal Revenue to revisit a tax matter at anytime where there is willful default on the part of the tax payer. We were urged to resolve the first issue in the Appellant’s favour.

In response to the position taken by the Appellant in respect of Issue 1, the Respondent’s Counsel also referred to the provisions of Section 2(a) of the Public Officers Protection Act and submitted that the provision protects a public officer against an action commenced three months after the accrual of the cause of action. He cited the case of Egbe vs. Belgore (2004) 8 NWLR part 876 p.330 at 341. It was submitted that it is trite that where a law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period. He referred to Gulf Oil Co. (Nig.) Ltd. vs. Oluha (2002) 12 NWLR part 780 p.92 at 98; Abubakar vs. Governor of Gombe State (2002) 17 NWLR part 797. It was contended that the cause of action in this case arose in 2003 while the Appellant instituted the action on 9/7/2008 and consequently, the Appellant’s right to institute the action had become extinguished, the action having been statute barred.

Respondent’s Counsel submitted that the contention of the Appellant’s Counsel that the limitation period stipulated by one statute may be overridden or extended by another thereby saying a suit filed out of time cannot be sustained in this case. He urged that the case of Abia State University vs. Chim Anyaibe (1996) 3 NWLR part 439 p.646 cited by the Appellant’s Counsel has no direct bearing to this case as that case had to do with the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 1979. We were urged to discountenance the arguments of the Appellant.

In his arguments in reply, Appellant’s Counsel repeated his submission that the act of the Respondent was done mala fide and contrary to the express provision of the law and as such, the Public Officers Protection Act would not apply.
Going through the arguments on Issue 1, it seems to me that Counsel also addressed Issue 3 which is whether Section 2(a) of the Public Officers Protection Act would apply in the light of the provision of Section 55.of the Personal Income Tax Act. I think it will be neater to discuss that issue first.
On the Personal Income Tax Act Cap. P.8 the Laws of the Federation of Nigeria 2004, Appellant’s Counsel case seems to be that the Personal Income Tax Act allows for the filing of an action beyond the limitation period set by the Public Officers Protection Act; that by it, the filing of the action against the Respondent can be done at anytime.

Section 55 of the Personal Income Tax Act provides:

(1) If the relevant tax authority discovers or is of opinion at anytime that a taxable person liable to income tax has not been assessed or has been assessed at a less amount than that which ought to have been charged, the relevant tax authority may within the year of assessment or within six years after the expiration thereof and as often as may be necessary, assess the taxable person at such amount or additional amount as ought to have been charged, and the provisions of this Act as to notice of assessment, appeal and other proceedings shall apply to that assessment or additional assessment and to the tax thereunder.

(2) For the purpose of computing under subsection (1) of this Section the amount or the additional amount which ought to have been charged, all relevant facts consistent with paragraph (b) of the proviso to Section 66(2) of this Act shall be taken into account whether or not known when a previous assessment or an additional assessment on the same taxable person for the same year was being made or could have been made.

Provided that where any form of fraud, willful default or neglect has been committed by or on behalf of a taxable person in connection with any tax imposed under this Act, the relevant tax authority may at anytime and as often as may be necessary assess that taxable person at such amount or additional amount as may be necessary for the purpose of making good any loss of tax attributable to the fraud, willful default or neglect”.

Considering the above provision, I am at a loss as to how its supplants the applicability of the Public Officers Protection Act. The provision of the Section is plain enough. It deals with what befalls a person where that person has not been assessed or has been under-assessed after a given period and what manner of assessment will be made against a person who has been fraudulent with regard to payable tax or who has defaulted willfully to pay his tax or has been negligent in doing so. The provision has no bearing whatsoever with anything having to do with time limit for institution of actions in court.

I now turn squarely to Issue 1.

Section 2(a) of the Public Officers Protection Act Cap. P.41, the Laws of the Federation of Nigeria 2004 provides:

2. Where any action, prosecution, or other proceeding is commenced against any person for an act done in pursuance or exclusion or intended exclusion 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, duty or authority, the following provisions shall have effect-

(a) 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 provided that if the action prosecution or proceeding be at the instance of any person for cause arising while such person was a convicted prisoner, it may be commenced within three months after the discharge of such person from prison.

Upon a careful reading of the above provision, it is clear to me that it is certainly not a death knell against a party who sues a public officer after the prescribed three months period. The provision only compels the institution of an action in court against a public officer within three months where that public officer is —

(a) doing an act complained of in pursuance or execution or intended execution of any Act or Law or of any public duty or authority; or

(b) has allegedly neglected or defaulted in the execution of any such Act, Law duty or authority.

Now, although the word “person” in Section 2(a) of the Act has been held to include persons known to law inclusive of artificial persons, public bodies, bodies corporate or incorporate and statutory bodies, see A.G. of Rivers State vs. A.G. of Bayelsa State (2012) LPELR 9336 (SC). I most respectfully think that the word “person” used in the Act can only mean a natural person or person sued by his official title. I say so because in the area of construction of a statute, the primary concern of the courts is the ascertainment of the intention of the legislator or law maker. See Ojokolobo vs. Alamu (1987) 3 NWLR part 61 p.377 at 402; Anyakwa vs. Obiakor (1990) 2 NWLR part 130 p.52 at 55; Tafida vs. Abubakar (1992) 3 NWLR part 230 p.511 at 521. In enacting the Public Officers Protection Act, the intention of the legislature, even as the title of the law suggests, is the protection of public officers. I therefore ask: can a statutory body such as the Respondent in this case rightly be called an Officer? I think not. It is only a natural person working in a public institution or body, or a person with an official title like say Attorney General, or Permanent Secretary that can rightly be called an officer. An institution cannot be an officer and therefore cannot be entitled to the protection of the Public Officers Protection Act in my humble view.
I have said that even the title or heading of the Act gives away its purpose or intention. While it is a cardinal rule of interpretation that a heading cannot control the plain words of a statute, headings can be relied upon to clarify ambiguity. See Ogbonna vs. A.G. Imo State (1992) NWLR part 220 p.647 at 653. I think that there is a latent ambiguity in Section 2(a) of the Public Officers Protection Act otherwise, it would not have been the subject of many conflicting decisions over the years. I grant however that the Supreme Court has now clarified the position of the law, see Ibrahim vs. Judicial Service Committee & Anor. (1998) LPELR 1408 (SC) p.19 and that by that clarification, the protection under the Public Officers Protection Act extends to public bodies such as the Respondent. I am most definitely bound by the Supreme Court.
Turning back to the facts of this case, it is my view that the withholding of Development Levy and Personal Income Tax under the Pay As You Earn Scheme by the Respondent could not have been an act done in pursuance or execution or intended execution of any Act, Law or public duty. The Respondent cannot claim that it withheld payment of the tax dues in line with an Act, Law or Public duty that permits it to do so. It was therefore wrong for the lower court to have held that the Respondent was protected by the Public Officers Protection Act. I resolve Issue 1 and 3 against the Respondent.

That leaves Issue 2 which is whether the learned trial judge was right in his ruling that fraud was not an issue, Having resolved Issues 1 and 3, Issue 2 in my considered view becomes an academic question. A court does not indulge itself in dealing with and considering academic questions or issues, See Owners of the MV Arabella vs. NAIC (2008) 11 NWLR part 1097 p.182. In conclusion, the appeal is allowed. I will make no order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment of my learned brother O. DANIEL-KALIO, JCA. I agree with the conclusion allowing the appeal, I allow same. I abide by the order awarding no cost.

HARUNA SIMON TSAMMANI, J.C.A.: I have had the advantage of reading before now the judgment delivered by learned brother, o. Daniel-Kalio, JCA.
My learned brother has adequately considered and resolved the pertinent issues that arose for determination in this appeal. I agree with his reasoning and conclusion thereon, I adopt same as mine. Accordingly I hold that this appeal is meritorious. It is accordingly allowed. Accordingly, the Ruling of the Oyo State High Court, delivered on the 22/6/2009 is hereby set aside.
I abide by the order on costs.

Appearances

Bamidele Ibironke Esq. with Femi Akintomiwa Esq., Jide Ojewunmi Esq. Ayotunde Soderu Esq. Sola Orobode Esq. Principal State Counsel, Oyo State Ministry of JusticeFor Appellant

AND

S.A. Ajayi Esq.For Respondent