FEMI IKUOMOLA V. ALHAJI GANIYU ALANI IGE & ORS.
(1992)LCN/0132(CA)
In The Court of Appeal of Nigeria
Thursday, the 26th day of March, 1992
Case Number: CA/L/59/92
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 51(2) OF SCHEDULE 6 TO THE STATE INTERPRETATION OF GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE 1991 (DECREE NO. 50)
Paragraph 51(2) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 (Decree No. 50) provides that- “51 (2) Subject to the provisions of this Decree, any appeal to the Court of Appeal shall be determined in accordance with the practice and procedure relating to appeals in civil cases in that court.” I take this to mean that where the Practice Direction is silent on any particular practice and procedure of the Court of Appeal, recourse will be had to the Court of Appeal Rules as amended relating to civil appeals in this court. PER KOLAWOLE, J.C.A.
Paragraph 1 of the practice Direction provides that – “The appellant shall file with his notice and grounds of appeal in the court and serve on the respondent a written Brief, being a succinct statement of his argument in the appeal, and the record of proceedings in the lower court”. The purport of paragraph 1 of the Direction is that the Appellant shall file his notice and grounds of appeal on the same day when he files his Brief of Argument. In this case, as I have earlier indicated, the two documents were filed on different dates – the Notice and grounds of appeal on 5 March, 1992 and the Appellant’s Brief of Argument on II March, 1992. What then is the implication of this apparent irregularity. Can it vitiate the proceedings and render the brief to have been filed out of time? In my opinion, the practice Direction was enacted for the expeditious disposal of Election appeals. It is not intended in my opinion to shut out any party who is ready and willing to be heard in accordance with the Rules. PER KOLAWOLE, J.C.A.
JUSTICES:
IBRAHIM KOLAPO SULU-GAMBARI. Justice of The Court of Appeal of Nigeria
OWOLABI KOLAWOLE Justice of The Court of Appeal of Nigeria
EMANUEL OBIOMA OGWUEGBU Justice of The Court of Appeal of Nigeria
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
RABIU DANLAMI MOHAMMED Justice of The Court of Appeal of Nigeria
Between
FEMI IKUOMOLA Appellant(s)
AND
- ALHAJI GANIYU ALANI IGE
2. NATIONAL ELECTORAL COMMISSION, LAGOS STATE
3. THE RETURNING ELECTORAL OFFICER ALIMOSHO LOCAL GOVERNMENT COUNCIL AREA, IDIMU, LAGOS STATE
4. THE RESIDENT ELECTORAL COMMISSION, LAGOS STATE Respondent(s)
KOLAWOLE, J.C.A. (Delivering the Leading Judgment): On 14 December, 1991, the Governorship and Legislative Houses of Assembly Election was conducted in Nigeria. In Lagos State, Mr Femi Ikuomola was a candidate for the House of Assembly on the platform of the Social Democratic Party (SDP) at the Alimosho II constituency. Alhaji Ganiyu Alani Ige was also a candidate for the same constituency. He was sponsored on the platform of the National Republican Convention (NRC).
The election in the constituency was conducted by the National Electoral Commission, the second Respondent. The first Respondent was returned as having been duly elected as a member of the Lagos State House of Assembly with 5,766 votes as against 4,315 votes scored by the Appellant Femi Ikuomola. The Petitioner, Femi Ikuomola not being satisfied with the result of the election presented an Election petition against the Respondents at the Governorship and Legislative House of Assembly Election Tribunal in respect of the election to the Lagos State House of Assembly for the Alimosho II Constituency.
The election of the first Respondent was questioned on two main grounds namely-
(1) At the time of the election, that the first Respondent whose election was questioned was not qualified for being elected as a member of the Lagos State House of Assembly.
(2) The first Respondent did not pay his tax for the requisite period as and when due.
The Respondents filed their respective Replies to the petition. The Appellant testified briefly; he called one witness on his own behalf. The sole witness was Sanoi Olasunkanmi Jokosenumi, a Senior Inspector of Taxes at the Board of Internal Revenue of the Lagos State Ministry of Finance. The first Respondent, Alhaji Ganiyu Alani Ige, also testified on his own behalf. He called no witness. The last witness who testified for the second, third and fourth Respondents was Kayode Oladimeji, the Electoral Officer for Alimosho Local Government Area. At the end of the hearing, learned counsel addressed the Court. On February 6, 1992 the Election Tribunal dismissed the Appellant’s petition.
On March 3, 1992 the petitioner being dissatisfied with the decision of the Election Tribunal filed a Notice of Appeal against the said decision to the Court of Appeal pursuant to section 93(1)(b) of the State government (Basic Constitutional and Transitional Provisions) Decree 1991 (Decree No.50).
On March 11, 1992 he filed the Appellant’s brief of argument. The first Respondent filed the Respondent’s brief of argument on 20 March 1992. Mr. Fola Arthur Worrey, Chief Legal Officer in the Lagos State Ministry of Justice who appeared for the other Respondents did not file any brief of argument.
The President of the Court of Appeal has enacted the practice Direction No. 1 of 1992 in exercise of the powers conferred upon him by section 227 of the Constitution of the Federal Republic of Nigeria, 1979, Section 8(2) of the Court of Appeal Act, 1976, and paragraph 51(2) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991.
The Practice Direction provides that –
“For the purpose of appeals coming to the Court of Appeal under section 93 of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991, this Practice Direction shall be observed by all parties.”
Pursuant to paragraph 7 (e) of the said practice Direction-
“When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but Briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued and will be considered as such.”
Although the Practice Direction does not provide that the court shall be satisfied that the parties have been duly served with the notice of hearing, I satisfied myself by looking into the record of the Court and found that the Appellant was duly served with the notice of hearing of the appeal on March 23, 1992 and so the appeal was treated as having been duly argued.
Paragraph 51(2) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 (Decree No. 50) provides that-
“51 (2) Subject to the provisions of this Decree, any appeal to the Court of Appeal shall be determined in accordance with the practice and procedure relating to appeals in civil cases in that court.”
I take this to mean that where the Practice Direction is silent on any particular practice and procedure of the Court of Appeal, recourse will be had to the Court of Appeal Rules as amended relating to civil appeals in this court.
Paragraph 1 of the practice Direction provides that –
“The appellant shall file with his notice and grounds of appeal in the court and serve on the respondent a written Brief, being a succinct statement of his argument in the appeal, and the record of proceedings in the lower court”.
The purport of paragraph 1 of the Direction is that the Appellant shall file his notice and grounds of appeal on the same day when he files his Brief of Argument. In this case, as I have earlier indicated, the two documents were filed on different dates – the Notice and grounds of appeal on 5 March, 1992 and the Appellant’s Brief of Argument on 11 March, 1992.
What then is the implication of this apparent irregularity. Can it vitiate the proceedings and render the brief to have been filed out of time? In my opinion, the practice Direction was enacted for the expeditious disposal of Election appeals. It is not intended in my opinion to shut out any party who is ready and willing to be heard in accordance with the Rules.
If recourse is had to paragraph 51(2) of Schedule 6 (Supra), I believe that once the Practice Direction does not stipulate the time within which the Appellant shall file the Appellant’s brief of Argument, I must fall back on Order 6 rule 2 of the Court of Appeal (Amendment) Rules 1984 which provides that-
“The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in appeal.”
I am fortified in my view that the provisions of Order 6 rule 2 applies to this appeal with necessary modification because the Practice Direction which is silent as to the number of days the Appellant is entitled within which he shall file his Brief of Argument imposes a time limit on the Respondent.
Paragraph 4 of the Direction provides that-
“The respondent shall file in the court and serve on the appellant his own Brief within 4 days after service in accordance with paragraph 8 hereafter”.
I say that Order 6 rule 2 above mentioned applies to filing of the Appellant’s Brief of Argument with necessary modification because paragraph 1(3) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree provides that-
“An Appeal from the decision of a Tribunal to the Court of Appeal shall be heard and determined within one month from the date of filing of the Appeal.”
It therefore means that the Appellant cannot have his full 60 days to file the Appellant’s brief of argument but the filing of his Notice and grounds of appeal on 5 March, 1992 and his brief of argument on 11 March, 1992 was not done in breach of any Regulation. The Brief of Argument was therefore properly filed and properly before the court particularly when the Notice of Appeal and the Brief are filed within the 30 days statutory period.
Learned Counsel for the first Respondent, Mr. H.O. Ihenyen filed a Notice to rely upon a preliminary objection on 20 March, 1992. At the hearing, we called his attention to the contents of the Notice.
We pointed out to him that his notice is in fact one that desires the Court of Appeal to affirm the decision of the court below on grounds other than those relied upon by that court.
Counsel conceded that he has not given the requisite notice under Order 3 rule 14(2) of the Court of Appeal Rules, 1981.
He therefore sought leave to withdraw the purported notice of preliminary objection under Order 3 rule 15. Leave was accordingly granted and the notice of preliminary objection was struck out.
Another preliminary issue which was disposed of was the application filed by Mr. Femi Agbaje, learned Counsel for the Appellant on 5 March, 1992, in which he sought for an order granting leave to the Appellant to adduce fresh evidence in the appeal. The Appellant and his counsel were absent when the motion was called, accordingly the application was struck out.
I now go to the appeal after dealing with all the important preliminary issues. In the Appellant’s brief, learned counsel formulated three issues which are, in the Appellant’s view, the issues arising for determination in the appeal.
These issues are –
“(1) Whether the 1st Respondent paid his tax for the year 1988 as and when due as required by section 83(1)(b) of the State Government (Basic Constitutional and Transitional provisions) Decree of 1991. No. 50 of 1991.
(2) Whether inspite of the Exhibits A and B tendered by PW2, the 1st respondent has still met the provisions of section 83 (1)(b) of the State Government(Basic Constitutional and Transitional Provisions) Decree No. 50.
(3) Whether the Honourable Tribunal was right in holding that the 1st Respondent was not a disqualified person because of the issuance of Exhibit H by the 2nd and 3rd Respondent’s”.
I think it is important to bear in mind before delving into the Appellant’s argument that the witness whom the Appellant referred to as PW2, is referred to at page 12 of the Record of Appeal as petitioner’s 1st witness, Sanoi Olasunkanmi Jokosenumi. He was called by the Appellant. He testified on his behalf. He was not treated as a hostile witness.
Mr. Femi Agbaja submitted in the Appellant’s brief that inspite of Exhibits A and B tendered by “PW2”, the first Respondent did not satisfy the requirements of the law as regards the payment of tax. He submitted that it is clear from the provisions of section 65 of the Income Tax Law of Lagos State that –
“Subject to the Provisions of Sections 25(2), 64 and 70 tax for any year of assessment shall be payable at the place stated in the notice of assessment under section 59 within two months after the service of the notice”,
It is trite law that he who asserts must prove. The Appellant must prove the date and time the notice of assessment for payment of tax was served on the Respondent. He must also prove that the Appellant failed to pay tax assessed within two months after the service of the notice of assessment.
Sanoi Olasunkanmi Jokosenumi the Senior Inspector of Taxes called by the Appellant as his first witness testified at page 12 lines 12 to 21 of the Record of Appeal as follows:-
“In 1988 he (first respondent) paid a tax of N600.00 at the Surulere Tax Office. The Income Tax receipt is No. 388133 of 9th November, 1988. Also in 1988, he paid N300.00 at the Headquarters, Alawusa, the receipt for this is No. 412066 of 16/11/89 also for 1988. In 1989 he paid N400.00 at the Headquarters Alawusa (receipt No. 412065 for 16/11/89). This payment is for 1989 tax year. In 1990 he paid N460.00 at Sogunle Tax Office (receipt No. 403669 of 30/3/90). On 13th November, 1991 my office issued a tax clearance certificate to the 1st Respondent. It was for the years 1989, 1990, 1991.”
The witness was not asked when the Notice of Assessment for payment of tax was served on the Respondent so as to establish whether he paid his tax as and when due.
The Tribunal found as to the payment of Tax by the 1st Respondent as and when due thus (page 50) –
“This is a ground of disqualification of a candidate for election into the House of Assembly of a State under Section 83(1) (b) of Decree No. 50. The petitioner himself produced the evidence which shows that the first Respondent paid his tax as and when due for a period of three years immediately preceding the year of the election; that is; 1988, 1989 and 1990 (See Exhibits A & B tendered by the Petitioner). We accordingly find under this head of claim that the first respondent is not disqualified as a candidate.”
The three issues formulated by the Appellant relate to the payment of tax as and when due by the Respondent. It seems quite clear to me that on the evidence produced by the Appellant himself, this appeal is most vexatious and frivolous. This is borne out further from the evidence elicited from Mr. Jokosenumi when he was cross examined by Mr. Arthur Worrey. The witness said at page 13 –
“From the records at the disposal of my office the first respondent duly paid his tax from 1988 to 1991”.
Upon what basis has the Appellant contended that the first Respondent did not pay his tax as and when due when in fact the evidence of his sole witness supports the first Respondent’s case.
Section 83(1)(b) of Decree No. 50 provides that-
“(1) A person shall not be qualified as a candidate to contest any Governorship or House of Assembly election unless –
(b) he produces evidence of tax payments as and when due for a period of three years immediately preceding the year of the election or a valid evidence of exemption from the payment of all or any part of such tax.
PROVIDED that is shall be the exclusive duty of the National Electoral Commission to decide whether a person has paid his tax and such decision shall be final and binding”.
In other words, if the National Electoral Commission is satisfied at the stage of screening before a candidate is cleared competent to contest an election that such candidate has paid the requisite tax for the prescribed period, a petition seeking the nullification of such candidate’s election on the ground that he did not pay his tax as and when due is incompetent.
Finally, I hold the view that in so far as all the three issues relate to the payment of tax as and when due, there is in fact only one issue raised “for determination. Apart from the evidence of the Appellant which accords with the requirements of section 83(1)(b) of Decree No.50, the 1st Respondent asserted affirmately at page 15 of the Record of Appeal;
“I paid my tax as and when due. This means that whenever I have my tax assessment, I pay immediately.”
In the result, this appeal is totally misconceived; it is an abuse of the process of the Court. It is accordingly dismissed. I affirm the judgment of the Election Tribunal dated 6 February 1992.
I award N500.00 costs in favour of the 1st Respondent to be paid by the Appellant. I make no order as to costs in favour of the 2nd, 3rd and 4th Respondents.
SULU-GAMBARI, J.C.A.: My learned brother, Owolabi Kolawole, J.C.A., who has just read the lead judgment has ably set out the facts, pleadings and the findings of the trial court in great detail so much so that I do not intend to repeat him. However, whatever I add in this judgment is merely to emphasis the conclusion reached by my learned brother with which I am in complete agreement.
At the trial of this election petition, the petitioner complained that-
(a) the 1st respondent is not educated up to at least the school certificate level or its equivalent;
(b) that the 1st respondent did not pay his tax for the required period as and when due, to support his claim that the 1st respondent was not duly elected and returned as a member of the House of Assembly and that his election should be declared null and void.
In the appeal before us, the whole complaint of the appellant was hinged on the issue as to whether the 1st respondent paid his tax for the required period as and when due.
The Petitioner gave evidence before the tribunal and called a witness. The witness is Mr. Sanoi Olasunkanmi Jokosenumi who was a Senior Inspector of Taxes in the Ministry of Finance, Board of Internal Revenue of Lagos State. The gist of his evidence was to the effect that the 1st respondent paid his tax for the years 1988, 1989, 1990 and 1991 and that he was issued with tax clearance certificates marked Exhibits “A” and “B”. Because he was called by the petitioner himself, the petitioner’s only witness was not cross-examined by Counsel for the petitioner on any material point.
The petitioner did not lead any evidence either by himself or through his only witness or by any other means to establish that the 1st respondent did not pay his tax as and when due. In order to do that properly, the petitioner will have to adduce evidence to show when the notices of assessment for the taxes were served on the 1st respondent and when the 1st respondent actually paid the taxes. Tax must be paid within two months after notice of assessment has been served on a tax payer. Any tax paid after the prescribed period would be regarded as having been paid later than as at when due. Throughout the case before the tribunal, the present appellant led no evidence to enable the computation as to whether the tax was paid later than the prescribed period.
In the course of the proceedings, the 1st respondent testified that he paid all his taxes as at when due. This piece of evidence was not controverted by the appellant or his witness. The appellant has to abide by the evidence of his own witness since the witness he called was not treated as a hostile witness. Since the evidence of the 1st respondent had not been challenged, contradicted or shaken under cross-examination, such evidence must be accepted as the correct version of what actually happened – see BELLO v. EWEKA (1981) 1 S.C 101; ADEJUMO v. AYANTEGBE (1989) 3 NWLR (Pt. 110) 417 and NIGER CONSTRUCTION LTD. v. OKUGBENI (1987) 4 NWLR (Pt.67) 787.
Though the appellant claimed that the 1st respondent did not pay his tax as at when due, the evidence he adduced before the court is not sufficient to cover the allegation; it in fact went far short of it. The petitioner totally failed to adduce any evidence in support of the petition. What he has succeeded in establishing through his only witness was that the 1st respondent duly paid his tax. There is a difference between duly paying the tax and paying the tax as at when due.
It is trite law that parties are bound by their pleadings; pleadings normally are expected to contain a fair and proper notice of the issues for determination, and of the precise matters in issue which the court is called upon to determine; they set limits which the court cannot exceed without amendment properly made. Judgment should be given against the appellant who did not adduce oral evidence in support of his pleadings – see NATIONAL INSURANCE CORPORATION OF NIG. v. POWER & INDUSTRIAL ENGINEERING CO. LTD. (1986) 1 SC 1 (1986) 1 NWLR (Pt.14) 1, because no useful purpose would be served by making some pleadings in which one makes an allegation that are left unproved at the end of the day. Such claims will be deemed abandoned.
Apart from this point, I can gather nothing in the brief filed by the appellant that can be usefully urged in favour of the appellant. For the above reasoned for the reasons ably set out by my learned brother, Kolawole, J.C.A., I come to the conclusion that this appeal fails and it is accordingly dismissed for lacking in merit.
I award the same cost as in the lead judgment.
OGWUEGBU, J.C.A.: I have read in advance the judgment of my learned brother Kolawole, J.C.A., and I entirely agree with his reasons and conclusions.
As far as I am concerned, this appeal is devoid of any merit. It is an exercise in futility. One is therefore tempted to conclude that these might have contributed to the absence of the appellant and his counsel at the hearing of this appeal. The learned counsel for the petitioner/appellant contended in his brief of argument filed on 11/3/92 that when tax is paid within the period specified in S.65 of the Income Tax Law of Lagos 5tate Cap. 58 Vol. 3 Laws of the Federation of Nigeria, 1958, then it can be said to have been paid as and when due. That as the 1988 income tax was paid outside the prescribed period, it could not be said to have been paid as and when due.
This contention presupposes that a notice of assessment must have been served on the tax payer under S.59 of the said Act before the provision of S.65 can be invoked. S.65 is also subject to the provisions of Ss.25(3), 64 and 70 of the said Act.
I therefore agree with the submission of the learned counsel for the 1st respondent that in the absence of any evidence that notice of assessment under S.65 was ever served on the 1st respondent, the period of payment cannot therefore be properly computed.
However, I too, dismiss the appeal and affirm the judgment of the Tribunal dated 6th February, 1992. I abide by the orders made in the leading judgment including those as to costs.
UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, Kolawole, J.C.A., just delivered. I agree with the said judgment. The main thrust in the appeal is the vexed question of payment of tax “as and when due.” There is evidence in this appeal that the 1st Respondent paid his 1988 tax on 9/11/88 and 16/11/89. It is however not disclosed in any part of the record of proceedings when he was served with assessment Notice or Notice for payment of tax in accordance with S.65 of the Income Tax Law of Lagos State Cap.85 Volume 3 Laws of the Federation and Lagos 1958 or if any such Notice was served on him at all.
The period of two months within which he should pay his tax as provided by the statute starts running from the service the said notice. If no Notice of Assessment is served; no tax is due or payable. I would even go further and say that there should be a Notice calling for a return of income on the tax payer before he should be served with a Notice of Assessment – see Federal Board of Inland Revenue v. Joseph Rezcallah & Sons Limited (1962) 1 A.N.L.R. 1 per Bairamian F.J (as hethen was).
In this appeal, the foundation on which the Appellant’s case is founded does not exist. The appeal is without merit. I also would and do hereby dismiss it. I make the same order as to costs made in the lead judgment.
MUHAMMED, J.C.A.: I entirely agree with the judgment just delivered by my learned brother, Kolawole, J.C.A. a draft of which I have had the privilege of reading.
I also abide with the order of costs as made by him in the lead judgment.
Appeal dismissed.
Appearances
Appellant absent; For Appellant
AND
H.O. Ilenyen Esq.;
Fola Arthur- Worrey Esq.
Chief Legal Officer Lagos State Ministry of Justice For Respondent
