TCN PLC v. ABIA STATE IRS & ANOR
(2022)LCN/16432(CA)
In The Court of Appeal
(OWERRI JUDICIAL DIVISION)
On Monday, August 01, 2022
CA/OW/185/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
TRANSMISSION COMPANY OF NIGERIA PLC APPELANT(S)
And
1. ABIA STATE INTERNAL REVENUE SERVICES 2. POWER HOLDING COMPANY OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN DISMISS AN APPLICATION WHERE AN APPELLANT BRINGS AN APPLICATION FOR LEAVE TO JOIN AS AN INTERESTED PARTY WHEN HE WAS NEVER IN THE PICTURE
The Appellant should have brought an application for leave to appeal as an interested party and not for leave to join as an interested party. Those two are mutually exclusive.
The Court was right to have dismissed that application as it did as it was functus officio. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Abia State, Umuahia Judicial Division, delivered on the 2nd day of September, 2014, in Suit No HU/14/2014.
SYNOPSIS OF FACTS:
When the Power Holding Company of Nigeria was unbundled, (2nd Respondent Company) the Alaoji substation (one of the transmission assets) formerly owned by the said 2nd Respondent became vested in the Appellant by virtue of Sections 8, 10, 13, 14 and 22 (1) of the Electricity Power Sector Reform Act 2005.
The 1st Respondent had conducted the tax audit from 2006 – 2011 which resulted in the action; the subject matter of this appeal.
The Appellant had become the beneficial owner of the Transmission substation along Alaoji, and unknown to him, on the 15th of July 2013, the 1st Respondent brought an action against PHCN (the 2nd Respondent herein) and obtained judgment. The 1st Respondent as judgment creditor executed the said judgment obtained against the 2nd Respondent and proceeded to distrain and levy execution to realise the judgment debt by sealing up the said appellants’ transmission substation and two other premises belonging to the 2nd respondent, thereby grounding the Appellants’ power transmitting activities for a number of days.
The Appellant’s case is that the 2nd Respondent sued in the suit has a separate legal personality, board, management and offices at Abuja, and the Appellant has its own legal personality; Board, manager and employees.
That the 1st Respondent brought an action against only the 2nd Respondent at the High Court of Abia State, Umuahia Division sitting at Umuahia.
The Appellant says that he did not have knowledge of the suit, the subject matter of this appeal.
Parties exchanged processes and arguments were taken by the Court below.
Ruling was delivered on the 28th of November, 2013, granting all the prayers sought by the 1st Respondent against the 2nd Respondent. Pages 192 – 195 of the Record of Appeal.
The Appellant’s Counsel filed a Motion to set aside the execution and sealing up of the Appellants’ transmission substation Alaoji on the grounds that the said premises belonged to it and not the 2nd Respondent, and that the 1st Respondent did not join it as a party in the action.
The Court below on the 2nd of September 2014, dismissed the application and held that the Court was functus officio.
The Appellant, dissatisfied with the Ruling filed a Notice of Appeal on the 27th of November, 2014 – pages 287 – 291 of the Record of Appeal encapsulating three (3) Grounds of Appeal.
The Appellant’s brief of argument was filed on the 28th of May, 2018, but same was deemed filed on the 11th of October 2021. It is settled by Frank C. O. Ezekwueche, Esq.
The 1st Respondent’s brief of argument was filed on the 31st of January, 2019, but same was deemed filed on the 11th of October 2021. It is settled by Obike Onyemere Esq.
The 2nd Respondent, from records, filed no brief of argument.
The Appellant filed a Reply brief on the 12th of February, 2019, but deemed filed on the 11th of October, 2021.
The Appellant distilled two (2) issues for determination from the Grounds of Appeal. they are:
ISSUES FOR DETERMINATION
1. “Whether the Learned Trial Judge was correct in dismissing the application seeking to join the Appellant adversely affected by the order of Court as an interested or aggrieved party in its bid to set aside the execution levied by the 1st Respondent on the Appellant’s Electricity Transmission Substation, Alaoji premises.
2. Whether the Learned Trial Judge was right in refusing the Appellant’s application dated 16th day of December 2013 to set aside ex debito justitiae, the Warrant and Authority to Levy Distress on a Tax Prayer/Payee Agent Upon His Goods, Chattels, Premises dated the 28th day of November 2013 and the execution levied on the Transmission substation, Alaoji, Aba beneficially belonging to the Appellant who was neither the judgment debtor nor a party in the action in the lower Court.
The 1st Respondent distilled two (2) issues for determination from the Grounds of Appeal.
He adopts the issues for determination of the Appellant.
1. “Whether the Learned Trial Judge was correct in dismissing the application seeking to join the Appellant adversely affected by the order of Court as an interested or aggrieved party in its bid to set aside the execution levied by the 1st Respondent on the Appellant’s Electricity Transmission Substation, Alaoji premises.
2. Whether the Learned Trial Judge was right in refusing the Appellant’s application dated 16th day of December 2013 to set aside ex debito justitiae, the Warrant and Authority to Levy Distress on a Tax Prayer/Payee Agent Upon His Goods, Chattels, Premises dated the 28th day of November 2013 and the execution levied on the Transmission substation, Alaoji, Aba beneficially belonging to the Appellant who was neither the judgment debtor nor a party in the action in the lower Court.
ISSUE NO 1.
The Appellant submits that the Appellant had vide motion dated 16th of December, 2013, sought orders from the Court, essentially an order joining the Appellant as an interested party in the suit, and an order setting aside judgment, and indeed an order setting aside the entire judgment of the Court delivered on the 28th of November, 2013. He filed a Written Addresses.
The 1st Respondent filed a Counter-Affidavit of eighteen paragraphs with a written address.
That the 2nd Respondent’s counsel did not oppose the application.
The Court dismissed the application. Submits that the appellant did not apply to be joined as a mere defendant, but as an interested or aggrieved party adversely affected by the extant order of the Court sealing up of its Alaoji Transmission substation by the 1st Respondent and its officers. Citing S.G.B.N. V. AFEKORO (1999) 7 SCJ. 171 @ 187.
That the grouse of the Appellant is that the Court below shut it out by refusing to join it as a party or aggrieved party adversely affected by the order of Court in the action, so as to be in a position to challenge and set aside the order of Court levying distress on the Appellants’ Alaoji Transmission substation.
Referring to the demand notices dated June 6th 2013, served on the 1st Respondent on the Nigeria Electricity Liability Management Limited, at its Abuja Offices, he argues that the said demand notices are the acknowledgement of service copies of the demand notices served on Nigerian Electricity Management Co. Ltd. instead of the Appellant, who was not also joined in the action.
That the Court below was wrong to have declined to join the Appellant in the action to ventilate its grievance as an interested or aggrieved party.
That the right of the Appellant has been infringed pursuant to the provisions of Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999.
The Appellant had the locus standi to approach the lower Court for redress of a wrong perpetuated against it by the 1st Respondent over the judgment and orders of the Court below. But that the Court below refused the application on the Ground that the Court was functus officio. Submits that the Court below had jurisdiction to set aside an order that is a nullity, and asks Court to allow the Appeal.
ISSUE NO 2
Submits that ignorance of the law is no excuse. That the 1st Respondent claimed that it did not know that the Appellant was in existence. That the 1st Respondent did not carry out any sufficient, or painstaking due diligence on the party or parties to be brought to Court.
That the Appellant is an interested party or a “person aggrieved” – by the Order of the Learned Trial Judge to levy Distress or execution on the Transmission Substation, Alaoji.
The 1st Respondent got judgment as judgment Creditor in the sum of N86,279,567.73. It is against the 2nd Respondent and caused to be issued by the Court, warrant and Authority to levy distress dated 28th of November 2013 in respect of the judgment debt/payee tax obligations of the 2nd Respondent’s employee.
The 2nd Respondent is the judgment debtor to the 1st Respondent, having by the judgment of the lower Court been adjudged to be liable to the 1st Respondent for the PAYE tax obligations of its employees in the sum of N86,279,567.73 and N567 and N83, 263, 923. 91 respectively from 2006 – 2011.
That this appeal is against the order, and warrant, and Authority to lay distress, issued by the Court below against the Transmission Substation, Alaoji, belonging to the Appellant, who was not a party to the proceedings in the Court below.
RESOLUTION:
ISSUE NO. 1
It is apparent that judgment had been delivered on the 28th of November, 2013, in respect of an application brought by the 1st Respondent in this appeal. The parties were the 1st and 2nd Respondents as the 1st Respondent sued the 2nd Respondent. The Appellant was never in the picture at that time. The Appellant did not apply for joinder until 19th December 2013, when the Court below became functus officio, that was when the Appellant applied to join him as a party interested in the Suit and brought an application to set aside the judgment of the Court.
The 2nd Respondent had filed a Notice of Appeal on the 3rd of December 2013. Pages 199 – 202.
The Appellant should have brought an application for leave to appeal as an interested party and not for leave to join as an interested party. Those two are mutually exclusive.
The Court was right to have dismissed that application as it did as it was functus officio.
Pertinent to note that the judgment was delivered on the 28th of November 2013, the application to join the said Suit was made on the 19th of December, 2013.
From record, the Suit was brought against the PHCN, who as at the time the Suit was brought, had not been unbundled, as Aba Substation Alaoji was still an integral part of PHCN.
The Suit was defended by PHCN as a bundle with Aba substation Alaoji, as an integral part.
PHCN entered defence to the Suit of the 1st Respondent as a bundle through I.S.O. Ejendu Esq., of Counsel. – pages 33 – 34 of the Record of Appeal.
At pages 256 – 257 of the Record, Exhibit “A” to the Further Counter-Affidavit shows where I.S.O. Ezendu Esq was engaged to offer defence to PHCN as a bundle with Aba substation, Alaoji as an integral part. The answer to Issue No 1 is in the affirmative.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 2:
Having resolved Issue No. 1 in favour of the Respondents, to consider Issue No. 2 would amount to embarking on an academic exercise.
This is because the Appellant had said that he was not a party to the Suit. HU/MISC. 14/2013. Where then is his locus standi to apply to set aside the order made in that Suit, in which he was not a party?
No order was indeed made against the Appellant in the Court below. The warrant and authority to levy distress were issued on properties of PHCN, which are:
(a) PHCN Aba business Unit at No 1 Ikot Ekpene Road Aba.
(b) PHCN Aba Substation at Alaoji, and
(c) PHCN Ariaria business which three are integral parts of PHCN.
No order was therefore made on the Appellant herein. The judgment debtor at the time of the Suit was PHCN of which Aba Substation Alaoji was an integral part.
The appropriate thing which the Appellant should have done was to seek leave of the Court below to appeal the decision as an interested party, rather than ask the Court below to reopen a case which it had delivered its ruling and the final rights of parties appropriately determined and not to join in the Suit which has been concluded. BELLO V. INEC (2010) LPELR 767 (SC).
The Appeal fails and same is hereby dismissed.
The Ruling of the High Court of Abia State, sitting in Umuahia, delivered on the 2nd day of September 2014 in Suit No. HU/14/2014 is affirmed.
N200,000 costs in favour of the 1st Respondent and against the Appellant.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA N. PEMU, JCA, where the facts and contentions of Counsel to the parties have been set out and determined.
I am in agreement with my learned brother’s reasoning and conclusions. I also find this appeal without merit and dismiss it. I subscribe to the orders for costs made by my learned brother.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Rita. N. Pemu, JCA (Presiding Justice).
From the facts of the case and the evidence led leading to the ruling of the trial Court, it is not in doubt that the Appellant could not have been heard before the lower Court seeking for the Court to reopen the matter having pronounced on same. The lower Court became functus officio upon delivering its ruling. It is in the same vein that I too find no merit in the present appeal and same is hereby dismissed.
Appearances:
Frank O. Ezekwueche, Esq, For Appellant(s)
Onyemaechi Matthew, Esq, with him, Obike Onyemere, Esq, – for 1st Respondent For Respondent(s)