THE ATTORNEY GENERAL OF TARABA STATE v. THE CONTROLLER IMMIGRATION SERVICE TARABA STATE COMMAND JALINGO & ORS
(2019)LCN/13351(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/YL/186/2017
RATIO
CRIMINAL LAW AND PROCEDURE: TIME DOES NOT RUN AGAINST THE STATE IN CRIMINAL MATTERS
It is a trite principle of law that time does not run against the state in criminal matters. See the decision of this Court in Orji V. The State (2007) 13 NWLR (Pt. 1050) 55 at 94 and Ugo Ngadi V. F.R.N. (2015) LPELR 24824 CA…..If the Court below had adverted its legal mind to the trite principle of law that in criminal matters, time does not run, it would not have dismissed the matter on the ground that it was statute barred.PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
THE ATTORNEY GENERAL OF TARABA STATE – Appellant(s)
AND
1.THE CONTROLLER IMMIGRATION SERVICE TARABA STATE COMMAND JALINGO
2. THE OFFICER-IN-CHARGE OF ACCOUNTS NIGERIA IMMIGRATION SERVICE TARABA STATE COMMAND, JALINGO
3. NIGERIA IMMIGRATION SERVICE TARABA STATE COMMAND, JALINGO – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 7th February, 2017 in the High Court of Taraba State holden at Jalingo.
The Appellant was a complainant who charged the Respondents at the Federal High Court on the following one count charge:
COUNT ONE
STATEMENT OF OFFENCE
Non-remittance of the sum of N103,267,359.66 being Pay-As-You-Earn (PAYE), Withholding Tax, and Development Levy to the Taraba State Board of Internal Revenue contrary to and Punishable under Section 16 of the Operation Pay-As-You-Earn Regulation, 2002 Incorporated under the Personal Income Tax Act, Cap. P8 Laws of Federation of Nigeria, 2004 and Section 73 of the Personal Income Tax Act.
PARTICULARS OF OFFENCE
That you the Controller Immigration Service, Taraba State Command, Jalingo, the Officer in Charge of Accounts, Nigeria Immigration Service, Taraba State Command, Jalingo and Nigeria Immigration Service Taraba State Command, Jalingo on or about the year 2002-2007 at the Nigeria Immigration Service, Taraba State Command within the jurisdiction of this Honourable Court committed an
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offence to wit: your organization deducted a total sum of N103,267,359.66 only as staff Pay-As-You-Earn, withholding Tax, and Development Levy and failed, neglected, and or refused to remit the above sum to the Taraba State Board of Internal Revenue, Jalingo thereby defrauding the Taraba State Board of Internal Revenue of the said sum.
The complaint against the Respondents was that they deducted One Hundred and Three Million, One Hundred and Sixty Seven Thousand, Three Hundred and Fifty Nine Naira (N103,167 359) only as staff Pay-As-You-Earn, withholding Tax and Development Levy but failed to pay same to the Taraba State Board of Internal Revenue despite letters of demand.
The case was later transferred to the High Court of Taraba State. Before the commencement of their trial, the Respondents raised a preliminary objection to their trial on the following grounds:
1. That by virtue of Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, the Taraba State High Court has no jurisdiction to try the Accused persons, the Accused persons being Federal Government Personalities.
2. That the matter being charged against
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improper tax deduction for the period of 2002 to 2006 commenced in the year 2012 is obsolete and statute barred.
3. That the proper parties are not before the Court. There is no designation called Controller-Nigeria Immigration Service Taraba State, Command, Jalingo officer in charge of account Nigeria Immigration Service Taraba State Command Jalingo & Nigeria Immigration Service, Taraba State Command.
4. That by virtue of the provision of paragraph 11 of the Fifth Schedule to the Federal Inland Revenue Service (Establishment) Act 2007 No. 13 this suit is supposed to 1st commence before the Tax Appeal Tribunal.
The notice of preliminary objection was supported by an affidavit of six paragraphs. Paragraphs 4-5 of the affidavit in support of the preliminary objection are reproduced immediately hereunder:
4. That I was informed by David Iliya Babela, Counsel to the Accused in the Immigration office at Jalingo around 8:20am on 19 October, 2015 and I verily believe him:-
i. That the Defendants, being Federal Government staff are not supposed to be tried by the Taraba State High Court.
ii. That as a result of that, the
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Taraba State High Court will have no jurisdiction to entertain the suit.
iii. That proper parties are not before the Court because there is no designation as Controller of Immigration in the Nigeria Immigration Service, officer in charge of account Nigeria Immigration Service Taraba State, Command Jalingo and the two other accused are not juristic person (sic) that can sue and or be sued.
iv. That Nigeria Immigration Service Taraba State Command officer in charge of accounts is not a juristic person that can sue and be sued.
v. That the claim is as regards the period 2002 up to 2006 which was brought in 2012, is obsolete and statute barred.
vi. That this case being a criminal case, the real Culprits are the ones that are to appear and answer their culpability or otherwise in the case.
Vii. That in criminal cases the Accused is not represented by any person. The Accused is charged in person.
viii. That proper investigation was not carried out by the Attorney General to ascertain the real culprits in this case.
ix. That the claimant’s case needs to be dismissed as the Court does not have Jurisdiction to try the case.
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5. That it will be in the interest of justice to grant this application.
The Appellant opposed the notice of preliminary objection. To this end it filed two counter affidavits one dated and filed 11th February, 2016 and the other dated and filed on 12th February, 2016.
When the preliminary objection came up for hearing on 16th June, 2016 learned counsel for the Appellant applied to withdraw the counter affidavit dated and filed on 11th February, 2016 and rely on the one dated and filed 12th February, 2016.
Although the Court below did not rule on the application to withdraw the earlier counter affidavit, learned counsel for the Appellant proceeded to rely on the counter affidavit filed on 12th February, 2016. Paragraphs 4 (v) (xi) of the later counter affidavit reproduced immediately hereunder read as follows:
v). That when the application to transfer this matter to this Court was made at the Federal High Court the Counsel to the Accused/Applicants never opposed to the application.
vi). That the Taraba State High Court has the jurisdiction to entertain this matter.
vii). That the name of the first accused
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was wrongly written as Controller of Immigration instead of Comptroller of Immigration.
Viii). That the wrong spelling of the name of a juristic person will not divest the Court of her jurisdiction.
ix). That the act of the Accused/Applicants in non-remittance of taxes to the Taraba Government is from 2002 -2007.
x). That the Complainant/Respondent (sic) action against the Accused/Applicant is not statute barred.
xi). That the Accused/Applicant (sic) are the real culprits and competent parties before this Court.
After considering the affidavit evidence and written addresses of learned counsel for the parties, the Court below upheld the preliminary objection of the Respondents and held that the matter was statute barred, dismissed it and discharged the Respondents.
Disconcerted by the ruling of the Court below, the Appellant immediately proceeded to this Court by notice of appeal dated 17th February, 2017 and filed 20th February, 2017. The notice of appeal contains three grounds of appeal.
The Appellant presented one issue for determination from grounds 2 and 3. Ground 1 was abandoned and is hereby struck out.
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The following issue is the lone issue presented by the Appellant for determination:
Whether the trial Court was wrong in striking out the Appellants case for being statute barred having regards to the provisions of Section 95(2) of the Personal Income Tax Act, 2011 (Grounds 2 and 3 of the Notice of Appeal).
The Respondents did not file any brief. When the appeal came up for hearing the Respondents were not in Court and they were not represented.
Learned counsel for the appellants pointed out that the Respondents filed a motion on 31st May, 2018 to bring in their brief filed the same date. The motion was not moved.
Arguing the appeal, learned counsel for the Appellant submitted that the Court below misconceived the import and meaning of Section 95 (1) particularly Subsection (2) of the Personal Income Tax Act, 2011. After reproducing Section 95 (1) and (2) of the Personal Income Tax Act 2011, learned counsel for the Appellant submitted that the Court below misapplied the provision of the law.
It was submitted that Section 95(1) of the Law only provides for a situation where a tax payer made an incorrect return or
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gives incorrect information regarding his tax liability. Such tax payer, it was submitted, is then liable on conviction to a fine of 10 percent of the correct tax and double the amount which has been charged as a result of the incorrect return or information he provided to the relevant tax authority. Section 95(2) of the Act, it was submitted, created the limitation of time exclusive to the offence created under Section 95(1) of the Act.
It was submitted that the Court below erroneously extended the application of Sub-section 2 of Section 95 beyond its scope to include all the Sections of the Personal Income Tax Act. It was submitted that where a statute is designed to take away some vested right of action and the jurisdiction of the Court to entertain such matter, the statute must be construed strictly and narrowly. The Court was referred to Garba V. F.C.S.C. (1988) NWLR (Pt. 71) 449; Okoro V. Delta Steel Co. Ltd (1990) 2 NWLR (Pt. 130) 8 and Saraki v. F.R.N. (2016) SCM 151.
It was submitted that from the charge contained at page 1 to 2 of the record, the Respondents were not charged under Section 95(1) of the Act. Therefore the charge, is not
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within the limitation provided for under Section 95 (2) of the Act, it was submitted.
The information, it was argued, shows that the Respondents are charged Pursuant to Section 16 of the Operation Pay-As-You-Earn Regulation, 2002 incorporated under the Personal Income Tax Act, Cap 8 Laws of the Federation 2004 and Section 73 of the same Act.
The foregoing sections, it was submitted, do not have statute of limitation as with the case with the offence created in Section 95 (1) of the Act.
Learned counsel for the Appellant maintained that the Court below misunderstood the grievances of the Appellant which are non-remittance of the total sum N103,267,359.66 being Pay As You Earn, withholding tax and Development Levy which had been deducted by the Respondents from the income of employees but they refused to remit same to the Taraba State Board of Internal Revenue contrary to Section 16 of the Pay As You Earn Regulation and Section 73 of the Personal Income Tax. Section 95 (1) and (2) it was submitted contemplates a situation in which a tax payer provides incorrect return and information to a relevant authority.
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It was submitted that assuming without conceding that Section 95 (2) of the Act is applicable to the sections under which the Respondents were charged, 2007 when the cause of action accrued to the time the information was instituted was clearly less than the six years provided by Section 95(2) of the Act. 2007 to 28th August, it was submitted is not over six years, it was submitted, but five years and eight months only.
It was submitted that the Court below rightly found that the cause of action accrued in 2007 but computed the period to be six years instead of five years and eight months.
It is a trite principle of law that time does not run against the state in criminal matters. See the decision of this Court in Orji V. The State (2007) 13 NWLR (Pt. 1050) 55 at 94 and Ugo Ngadi V. F.R.N. (2015) LPELR 24824 CA.
From the information filed against the Respondents, they are facing a criminal allegation notwithstanding two letters annexed to the information. The first letter dated 3rd September, 2009 at page 5 of the record says the Respondents are indebted to the Taraba State Government. The second letter dated 4th November, 2011 at page 7 of the record also says the
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Respondents are indebted to the Taraba State Government. How this apparent indebtedness became an offence resulting into the information contained at pages 1 and 2 of the record may be proved at the trial. I say no more.
If the Court below had adverted its legal mind to the trite principle of law that in criminal matters, time does not run, it would not have dismissed the matter on the ground that it was statute barred.
The Court below erred when it relied on%
