RT. HON. FRED OMOIGBERAI v. EDO STATE BOARD OF INTERNAL REVENUE
(2019)LCN/13770(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/170/2016
JUSTICES
CHIOMA EGONDU NWOSU-IHEME 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
RT. HON. FRED OMOIGBERAI Appellant(s)
AND
EDO STATE BOARD OF INTERNAL REVENUE Respondent(s)
RATIO
THE FUNDAMENTAL NATURE OF JURISDICTION
The fundamental nature of jurisdiction can no longer be over-emphasized as it is settled by a very long line of decisions of the Supreme Court. Jurisdiction of a Court in any cause or matter is a threshold issue that is fundamental to adjudication. Therefore, absent or want of jurisdiction renders the entire proceedings of a court, no matter how well conducted and/or decided, a nullity. See Olusegun Egunjobi v. Federal Republic of Nigeria (2013) 3 NWLR (Pt. 1342) 534 and Tega Esabunor & Anor. v. Dr. Tunde Faweya & Ors. (2019) 7 NWLR (Pt. 1671) 316. PER ADUMEIN, J.C.A.
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS
Owing to its important and unique nature, the issue of jurisdiction can be raised at any stage of proceedings, even on appeal to appellate courts including the Supreme Court for the first time. See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; African Newspapers Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Mrs. Esther I. Adesigbin v. Military Gov. of Lagos State (2017) 10 NWLR (Pt. 1574) 442 and Tega Esabunor & Anor. v. Dr. Tunde Faweya & Ors. (2019) 7 NWLR (Pt. 1671) 316. PER ADUMEIN, J.C.A.
WHETHER OR NOT QUESTIONS RELATING TO JURISDICTION CAN BE RAISED AND ARGUED WITH OR WITHOUT LEAVE OF COURT
It should be noted that it is now settled that a question relating to the issue of jurisdiction can be raised and argued with or without leave of Court. See Isaac Gaji v. Emmanuel Paye (2003) 8 NWLR (Pt. 823) 583 and University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (Pt. 1414) 159.
Of relevance to this case is that the issue of jurisdiction, can be raised anyhow, provided that a process is duly filed in the Court giving the adverse party notice of the issue so as not to be taken by sur6prise. SeeMr. Augustine Arueze & Ors. v. Chief Mike A. Nwaukoni (2019) 5 NWLR (Pt. 1666) 469 at 478, per Bage, JSC. PER ADUMEIN, J.C.A.
WHETHER OR NOT AN ORDER OF A COMPETENT COURT BINDS ALL PARTIES THERETO AND REMAINS IN FORCE UNLESS IT IS SET ASIDE BY THE COURT ITSELF OR ON APPEAL
The appellant has not disputed the fact that the subject matter of the appellant?s action had been duly determined by a Court of co-ordinate jurisdiction with the trial Court in Suit No. B/RC/57/2012 between the same parties and subsisting orders made by Acha, J on the 18th day of October, 2012. The law is that an order of a competent Court binds all the parties thereto and remains in force, unless it is set aside by the Court itself or on appeal. SeeAladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 and Labour Party v. INEC (2009) 6 NWLR (Pt. 1137) 315In the case of Akporue v. Okei (1973) 12 S.C. 137 at 145, the Supreme Court held that ?no Judge is competent to in judgment over the decision or order made by a brother Judge.” PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment) The appellant, as claimant in Suit No. HAF/13/2013 instituted in the High Court of Edo State, holden at Afuze, sought against the respondent (then defendant) the following relief:-
?a) A DECLARATION that the Tax assessment for the year 2003 to 2009 upon which the claimant was made to pay a tax of N35, 000.00 at 2008 and N52, 000.00 at 2009 amounting to N87, 000.00 while the claimant was a member of the Edo State House of Assembly and was paying his tax under the PAY AS YOU EARN (PAYE) system amounts to double taxation.
b) A DECLARATION that the assessment notice purportedly served on the claimant is not a correct assessment of his personal income tax and should be set aside.
c) AN ORDER directing the defendant to revise the assessment contained in the Notice of assessment in line with the objection of the claimant.
d) AN ORDER directing the defendant to refund the sum of N432,000.00 (Four Hundred and Thirty-two Thousand naira) to the claimant as Tax received from him from the year 2003 ? 2009 while he was paying his tax under the Pay As You Earn (PAYE) system being double and the tax the
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defendant wrongly made the claimant to pay form (sic) 2009 ? 2011 while he was not living or working in Edo State for that period.
e) 15% interest on the judgment sum till sooner payment.
f) N10,000,000.00 (Ten Million Naira) as general damages for inconveniences.?
The appellant served as a member of Edo State House of Assembly, representing Owan East Constituency, from 2003 to 2009, during which period he paid his taxes under the ?Pay As You Earn? (PAYE) system. He claimed that he travelled to the United Kingdom in 2009 and stayed there until the year 2011, when he returned to Nigeria. The appellant claimed that during the period that he served as a member of the Edo State House of Assembly, he resigned his position as the Chairman and Managing Director of Ovbiomu Nigeria Limited and that he did not earn any income in Nigeria, during the period that he was resident in the United Kingdom.
?It was the appellant?s case that the respondent, in breach of the Personal Income Tax Law, opened three files for him and subjected him to multiple taxation. He also claimed that he was not served personally with any Tax Assessment Notice,
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before he was served a demand notice to pay the multiple taxes.
The respondent, on the other side, denied that the appellant resigned from the company in issue.
By orders of the Edo State Revenue Court, made on 18/10/2012, the respondent distrained the appellant?s business premises, located at Afuze, for failure to deduct and remit his director?s fee to the respondent ? the relevant authority. The appellant went to the respondent?s office to pay up the liability and the distrained business premises was thereafter unsealed. Two actions were subsequently instituted in the lower Court ? one by Ovbiomu Nigeria Limited and the other by the appellant.
The trial Court delivered judgments on 18/12/2015 in favour of the respondent. This appeal is against the judgment delivered by the trial Court in respect of the action instituted by the appellant.
In his brief filed on 11/12/2017 but deemed filed on 29/01/2018, learned counsel for the appellant raised the following two issues for determination:-
“a). Whether the trial Court properly evaluated the evidence before it came to the conclusion that the burden of proof was on the appellant
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to show that he did not earn additional income from the company from the period of 2003 to 2009 rather than being on the respondent when it was clear that the appellant was an elected member of the Edo State House of Assembly and was paying his taxes under the Pay As You Earn (PAYE) and thereafter, was away to the United Kingdom from 2009 ? 2011 and did not earn additional income. (This issue covers grounds 1 and 2).
b). Whether the assessment notice addressed to the Managing Directors was properly served on the appellant. (This issue covers ground 3).?
On behalf of the respondent, three issues were distilled for determination thus:-
1. ?Whether the lower Court had jurisdiction in the first place to entertain the case when in fact it was a final order or judgment of the Court.?
2. “Whether from the facts and circumstance of this case, being an action for a declaratory relief, the burden of proof was not on the appellant to show that he did not earn additional income for the periods under review.?
3. Whether the assessment notice upon which the appellant himself went to the respondent to pay the tax liabilities assessed against
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him was not properly serviced on him.?
I adopt the issues as identified by the learned counsel for the parties to determine this appeal, as these issues are essentially the same and interwoven. However, the issue of jurisdiction raised by the respondent will be taken and treated first.
The learned counsel for the respondent stated that the Edo State Revenue Court, presided over by Hon. Justice J. I. Acha, ?had earlier decided on the subject matter of this case and concluded same in Suit No. B/RC/57/2012 between Edo State Board of Internal revenue and Fred Omoigberai?. Counsel submitted that ?the order was a subsisting order which cannot be done away with in the absence of a valid appeal or an action before the Court that made the order to vary same?.
Learned counsel for the respondent argued, inter alia, as follows:-
This being so, we submit most humbly that the only appropriate remedy of challenging the order is for the appellant to appeal to the Court of Appeal on the matter. This is so because, the judgment aforesaid was a final one in the sense that it terminated itself as a tax matter and proceedings. We submit my lord
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that an order made pursuant to Section 104 of the Personal Act (As Amended) is a final order, it is one that cannot be varied, reopened or set aside by the Court that delivered it or by any other Court of co-ordinate jurisdiction.?
In support of the above contention, learned counsel referred the court to the cases of Alpa v. Sani (1967) NMLR 397; Bwai v. UBA PLC (2002) FWLR (Pt. 119) 1538 and Ola v. Williams (2002) FWLR (Pt. 121) 1996.
Odabi Kingsley, Esq., learned counsel who settled the respondent?s brief, contended that the trial Court had no jurisdiction to entertain the appellant?s suit.
The response of learned counsel for the appellant ? K.O. Ojemeri, Esq., who settled the appellant?s reply brief, is that ?issues for determination in a brief of argument must be based on a particular grounds (sic) of appeal? and that an issue not linked to any grounds of appeal ?becomes irrelevant and goes to no issue and is even liable to be struck out.” In support of this submission, learned counsel referred the Court to the cases of Akpan v. FRN (2012) 1 NWLR (Pt. 1281) 403; Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76;
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Ibator v. Barakuro (2007) NWLR (Pt. 1040) 475; and Chami v. UBA PLC (2010) 6 NWLR (Pt. 1191) 474.
In urging the Court to ignore this issue, learned counsel for the appellant submitted that:-
?For the respondent to be able to raise this issue, he ought to file a cross appeal or sought the leave of this Court to argue this fresh issue since the appellant did not formulate any ground of appeal on this decision of the trial Court. It is also submitted that the law that issue of jurisdiction can be raised at any time even for the first on appeal is not sacrosanct. When the trial Court had decided that it had jurisdiction to entertain a matter, there must be an appeal against that decision before it can be raised in a Brief of Argument on appeal.?
The fundamental nature of jurisdiction can no longer be over-emphasized as it is settled by a very long line of decisions of the Supreme Court. Jurisdiction of a Court in any cause or matter is a threshold issue that is fundamental to adjudication. Therefore, absent or want of jurisdiction renders the entire proceedings of a court, no matter how well conducted and/or decided, a nullity. See Olusegun Egunjobi v. Federal Republic of Nigeria (2013) 3 NWLR (Pt. 1342) 534 and Tega Esabunor & Anor. v. Dr. Tunde Faweya & Ors. (2019) 7 NWLR (Pt. 1671) 316.
Owing to its important and unique nature, the issue of jurisdiction can be raised at any stage of proceedings, even on appeal to appellate courts including the Supreme Court for the first time. See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; African Newspapers Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Mrs. Esther I. Adesigbin v. Military Gov. of Lagos State (2017) 10 NWLR (Pt. 1574) 442 and Tega Esabunor & Anor. v. Dr. Tunde Faweya & Ors. (2019) 7 NWLR (Pt. 1671) 316.
It should be noted that it is now settled that a question relating to the issue of jurisdiction can be raised and argued with or without leave of Court. See Isaac Gaji v. Emmanuel Paye (2003) 8 NWLR (Pt. 823) 583 and University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (Pt. 1414) 159.
Of relevance to this case is that the issue of jurisdiction, can be raised anyhow, provided that a process is duly filed in the Court giving the adverse party notice of the issue so as not to be taken by sur6prise. SeeMr. Augustine Arueze & Ors. v. Chief Mike A. Nwaukoni (2019) 5 NWLR (Pt. 1666) 469 at 478, per Bage, JSC.
The appellant has not disputed the fact that the subject matter of the appellant?s action had been duly determined by a Court of co-ordinate jurisdiction with the trial Court in Suit No. B/RC/57/2012 between the same parties and subsisting orders made by Acha, J on the 18th day of October, 2012. The law is that an order of a competent Court binds all the parties thereto and remains in force, unless it is set aside by the Court itself or on appeal. SeeAladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 and Labour Party v. INEC (2009) 6 NWLR (Pt. 1137) 315.
In the case of Akporue v. Okei (1973) 12 S.C. 137 at 145, the Supreme Court held that ?no Judge is competent to sit in judgment over the decision or order made by a brother Judge.” Therefore, having regard to the facts of this case, the trial Court had no jurisdiction to adjudicate upon the appellant?s claim in Suit No. HAF/13/2013, especially in view of the valid and subsisting decision of Acha, J. made on 18/10/2012 in Suit No. B/RC/57/2012.
For all reasons that I have given in this judgment, Suit No. HAG/13/2013 is hereby struck out for lack of jurisdiction by the trial Court. Accordingly, this appeal is also struck out for want of jurisdiction.
The parties are hereby ordered to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the benefit of reading in draft the judgment of my learned brother M. A. A. ADUMEIN, JCA. I agree entirely with the reasoning and conclusion reached.
For the reasons adduced in my learned brother’s lead judgment, I also hold that the trial Court had no jurisdiction to adjudicate upon the Appellant’s Claim in Suit No. HAF113/2013. I also strike out Suit No. HAG/13/2013 for want of jurisdiction by the trial Court.
Consequently, this appeal is also struck out for want of jurisdiction.
I abide by the order as to costs made by Adumein J.C.A in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
Appearances:
K.O. Ojemeri, Esq.For Appellant(s)
O.K. Odabi, Esq. (Assistant Director, Edo State Ministry of Justice)For Respondent(s)
Appearances
K.O. Ojemeri, Esq.For Appellant
AND
O.K. Odabi, Esq. (Assistant Director, Edo State Ministry of Justice)For Respondent
