UYO LOCAL GOVT v. AKWA IBOM STATE GOVT & ANOR
(2020)LCN/15777(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, May 22, 2020
CA/C/388/2017
Before Our Lordships:
Mojeed Adekunle OwoadeJustice of the Court of Appeal
Philomena Mbua EkpeJust ice of the Court of Appeal
Muhammed Lawal ShuaibuJustice of the Court of Appeal
Between
UYO LOCAL GOVERNMENT APPELANT(S)
And
1. AKWA IBOM STATE GOVERNMENT 2. COMMISSIONER, MINISTRY OF TRANSPORT, AKWA IBOM STATE RESPONDENT(S)
RATIO:
THE JUDGMENT MUST BE CONFINED TO THE CAUSE OF ACTION
It is a well settled principle of judicial adjudication that the judgment in a lis must be confined to the cause of action and the issues raised on the pleadings. Thus, the Court cannot grant remedies or reliefs not claimed by the parties. MUHAMMED LAWAL SHUAIBU, J.C.A.
IT IS NOT THE FUNCTION OF A COURT TO SUPPLY EVIDENCE
See Bola Ige Vs Omololu Olunloyo & Ors (1984) SC 258. Likewise, the opinions expressed by judges or justices on the findings on the documents cannot be regarded or equated with the claim before the Court. It is therefore not the function of a Court of law by its own exercise or ingenuity to supply or imagine evidence or arrive at an answer which only evidence presented and tested could supply. See Onyejekwe Vs Onyejekwe (1999) 3 SC 1 at 24. MUHAMMED LAWAL SHUAIBU, J.C.A.
THE POSITION OF THE LAW ON THE GROUND OF GOING ON APPEAL
The positions of the law is that a party should not just go on appeal merely on the ground that the judgment he wants set aside was given outside the ninety days or three months period as the case may be. He will have to fight the appeal on all known grounds which can render the judgment unsustainable, not merely on the assessment of facts in view of subsection (5) of Section 294 of the 1999 Constitution (as amended). That being the position, an appellant in this regard must show that the evidence was not properly evaluated and if that leads to a miscarriage of justice, he will succeed in having the judgment set aside. See Owoyemi Vs Adekoya (2003) 12 SC (Prt 1) 1 at 24. MUHAMMED LAWAL SHUAIBU, J.C.A.
COMMENCEMENT OF ACTIONS
It is settled based on plethora of judicial decisions that where the facts are likely to be in dispute, it is improper to commence such action by originating summons. See Federal Government of Nigeria Vs Zebra Energy Ltd (2002) 12 SC (Prt 11) 136 at 180 – 181. In National Bank of Nigeria Vs Ayodele Alakija (1978) 9 & 10 SC 59, Kayode Eso, JSC (of blessed memory) said inter alia at page 74-75 thus: -“In Re Giles Real and Personal Co Vs Michell (1890) 43, Ch.D 391, Cotton, LJ believed that originating summons was intended to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way, not to enable the Court to determine matters which involve a serious question.” MUHAMMED LAWAL SHUAIBU, J.C.A.
THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY FUNCTION OF A TRIAL COURT
In this regards, it has long been settled that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a Court of trial which heard and assessed the witnesses. Thus, where a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. See Akinloye& Anor Vs Eyilola & Ors (1968) NWLR 92 at 95, Evans Vs Adu (1981) 11 – 17 SC 25 at 39,Woluchem Vs Gudi (1981) 5 SC 291 at 320 and Agbeje Vs Ajibola (2002) 1 SC 1 at 6. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court made its findings; the appellate Court cannot interfere. MUHAMMED LAWAL SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Ekaeze F. F. Obot of the Akwa Ibom State High Court sitting at Uyo Judicial Division delivered on 2nd November, 2016 wherein the claim of the claimant (now appellant) was dismissed for lacking in merit.
By an amended originating summons filed at the lower Court on 12th October, 2015, the claimant sought for the determination of the following questions: –
1. Whether by the provisions of the Constitution of the Federal republic of Nigeria, 1999 (as amended), the Taxes and Levies (Approved List for Collection) Act, 2004, the Road Traffic Law Cap 115 Laws of Akwa Ibom State, Local Government (Administration) Law 2007 (as amended), the defendants herein or any of their agents has the legal right to regulate, charge and collect motor park fees/levies from commercial vehicles in Akwa Ibom State and for their sole benefit.
2. Whether by the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Taxes and Levies (Approved List for Collection) Act, 2014 the Road Traffic Law Cap 115Laws of Akwa Ibom State and the Akwa Ibom State Local Government (Administration) Law, 2007 (as amended), the defendants herein and or any of their agents has the legal right to control and or charge daily park fees/levies from commercial tricycles and other commercial vehicles other than as regulated in the Road Traffic Law Cap 115 Vol. 5 of Akwa Ibom State.
Consequent to the above, the appellant herein prayed for certain declaratory and Injunctive reliefs. At the end of the hearing, learned trial judge at pages 328 held as follows: –
“The claimant had admitted in its affidavit that it had amended its bye-law to enable it collect the said levies and fees from tricycles and commercial vehicles. At this point, it is necessary to refer to the provisions of the superior legislations regarding the said amendment.
Now, by the provisions of Section 1(d)_ of the Fourth Schedule of the Constitution of the Federal Republic of Nigeria 1999 that Local Government councils are only empowered to license bicycles and trucks other that mechanically propelled trucks. This is a constitutional provision which supersedes every other legislation. See Section 1(1) and (3) of the Constitution (supra). It is therefore my considered view that, notwithstanding, any purported amendment to its bye-laws the claimant has no legal right to license mechanically propelled vehicle which includes tricycles.
And except the House of Assembly by legislation confers, assign and/or delegates the said functions to the Local Government councils, the claimant would be acting ultra vires in collecting such levies and fees from tricycles (which are mechanically operated vehicles).”
Dissatisfied with the above, appellant appealed to this Court through a notice of appeal filed on 2/2/2017. Its initial notice of appeal contains nine (9) grounds of appeal and by leave of Court granted on 17/3/2020, appellant amended the notice of appeal by adding three (3) grounds of appeal.
At the hearing of the appeal on 17/3/2020, OtuInwang, Esq, learned counsel for the appellant adopted the appellant’s brief of argument filed on 10/06/2019 but deemed as properly filed on 17/3/2020 and reply brief filed on 16/3/2020 and deemed on 7/3/2020. In the said brief of argument, learned counsel distilled (8) eight issues for the determination of this appeal as follows: –
1. Did the Trial Court properly construe the claimant’s case particularly the documentary evidence that gave rise to the interpretation of the laws sought by the claimant against the contentions of the defendants in the suit. (Distilled from grounds 2 and 10).
2. Was the defendants’ counter-affidavit filed on 19/12/2015 still relevant to the case after the defendants obtained leave of Court to amend and to deem their amended reply filed on 22/4/2016. (Distilled from ground 4).
3. Is the entire provision of Taxes and Levies (Approved List for Collection) Act 2004 ultra vires the Constitution and therefore null and void by reason of the ouster clause at the beginning of the said Act. (Distilled from ground 5)
4. Did the Trial Court exercise its power to strike out the name of the 2nd defendant judicially and judiciously in the particular instance of this case. (Distilled from ground 6).
5. Was the Trial Court right to resile from giving due interpretation to the provisions of the Taxes and Levies (Approved list for Collection) Act by reason of the objection raised by the defendants in their written address filed on 22/4/2016. (Distilled from ground 7).
6. Was the claimant’s case so contentious and irreconcilable such that it could not be resolved by originating summons proceedings. (Distilled from ground 8).
7. Was the claimant’s case anchored on the interpretation of provisions of Paragraph 1(d) of 4th schedule to the Constitution of the Federal Republic of Nigeria 1999. (Distilled from ground 9).
8. Whether the belated judgment delivered by the trial Court did not constitute a miscarriage of justice. (Distilled from grounds 1 and 12)
Learned Attorney-General of Akwa Ibom State, Nwemedimo Nwoko, Esq. adopted the respondent’s brief of argument filed on 28/01/2020 but deemed as properly filed on 17/3/2020. In the said brief, he adopts all the eight (8) issues formulated by the appellant.
Arguing issues 1 and 6 together, learned counsel for the appellant referred to Section 4 of the bye-law on the designated motor parks as well as the bundle of documents annexed to the affidavit in support of its originating summons to contend that it had been performing its statutory functions which includes collecting park fees/charged from commercial vehicles in its area of authority until the respondents started to interfere on its authority in that regards vides Exhibits B, C1, C2, D, E, F, H, I, J and K attached to the said affidavit in support of the originating summons. He thus submitted that the appellant is one of the components local Government Area of the 1st respondent whose function is spelt out in the 4th Schedule to the 1999 Constitution and Section 28 of the Akwa Ibom Local Government (Administration) Law charged with responsibility of establishing, maintenance and regulating motor parks within its area of authority. Had the trial Court evaluated the provision of Section 4 of the appellant’s bye-law together with the Exhibit 2 annexed to the affidavits in support of the originating summons, it would have arrived at a different conclusion, submitted learned counsel for the appellant.
He further submitted that the respondents neither denied issuing the document exhibited by the appellant nor refer to any law made by the State Assembly authorizing it to interfere with the exclusive function of the appellant in collecting fees/levies at itsmotor parks.
On issue 2, learned counsel submitted that after obtaining leave of Court to amend and deem the amended originating summons, the respondents counter affidavit earlier filed on 9/12/2015 was no longer relevant to their case. He referred to Order 3 Rule 8 (2) and Order 17 Rule 16 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 to the effect that a defendant to an originating summons is required to file a counter affidavit together with all the exhibits he intend to rely upon and a written address within 21 days after service of the originating summons. However, the respondents as defendants having complied with the above rules out of blues, amended their reply to the amended originating summons but the said reply was not accompanied with any counter affidavit as such the trial Court was wrong in referring to the original counter affidavit after same had been amended. In aid, learned counsel relied on the authority in the cases of Gov. of Midwest Vs Mid Motors Ltd (1977) 10 SC 133 at 152, Eyo Eta Vs Dazie (2013) NSCQR 1287 at 1307 and Oyinloye Vs Esinkin (1999) 10 NWLR (Pt 624) 540.
On issue 3 and 5, learned counsel submitted that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has itself provided remedy to any legislation which provision is not in tandem with that of the Constitution. Also being an existing law pursuant to Section 315 of the said Constitution, the Taxes and Levies (Approved List for Collection) Act is to be applied with such modification to bring it into conformity with the provisions of the Constitution. He submitted further that the Constitution does not declare such Act void altogether and that the provisions of the Taxes and Levies (Approved List for Collection) Act as regards tax collection between the 3 tiers of government of the Federation of Nigeria is not unconstitutional. He referred to Eti-Osa local Government Vs Jegede (2007) 10 NWLR (Prt 1043) 537.
On issue 4, learned counsel referred to Order 15 Rule 7 of the Akwa Ibom High Court (Civil Procedure) Rules 2009 in contending that all grounds of defence or reply which makes an action not maintainable shall be specifically pleaded. He submitted that the respondents neither plead the issue of non juristic personality of the 2nd Respondent nor the issue of contentious proceeding and hence the name of the 2nd respondent was struck out without affording parties the opportunity to be heard on the issue. He referred to A.G. Fed Vs ANPP (2003) 16 NSCQR 535 at 553.
On issue 7, learned counsel submitted that the appellant’s claim at the lower Court was anchored on the intrusion by the respondents in the performance of its functions as contained in Paragraph 1(e) of the 4th Schedule to the 1999 Constitution as replicated in both Section 28(i) (e) of the Akwa Ibom State Local Government (Administration) Law 2007 (as amended), Item 9 and 16, Part III in the Schedule to Taxes and Levies (Approved List for Collection) Act. Thus, the appellant did not call upon the trial Court to construe the provision of Section 1(d) of 4th schedule to the 1999 Constitution and therefore the trial Court was in error in construing the provision of Paragraph 1(d) of 4th schedule of the said Constitution.
Finally on issue 8, learned counsel submitted that the delay in the delivery of judgment by the trial Court resulted in the misconstruing, misstating and misrepresenting the appellant’s case on material issues and invariably caused the appellant to suffer a miscarriage of justice by the judgment which was delivered more than a month beyond the limitation period in Section 294(1) of the 1999 Constitution.
In his response to issue 1 and 6, learned counsel for the respondents contended that the appellant’s affidavit in support of the originating summons revealed that the facts stated therein were highly contentious and very hostile in nature. He referred to the provision of Order 3 Rules 5, 6 and 7 of Akwa Ibom State High Court (Civil Procedure) Rules to the effect that an originating summons procedure can only be used when a person is interested in the interpretation or determination of a question in a deed, will, enactment or other written instruments. And where as in the present case, a party brings an action that ordinarily ought not have been commenced by an originating summons procedure, the Court is not bound to determine the question and has the discretion to make any order it deem fit.
In further contention, learned counsel submitted that the facts of collection of parking fees and levies are not only contentious but are hostile and therefore parties need to call witnesses and be cross-examined. And that the lower Court had analysed all the exhibits and concluded that none specified the type of park or their locations. In effect, the trial Court was right when it held that the appellant was wrong to have commenced the suit by way of originating summons and declined jurisdiction to hear it. He referred to SCS Co. Vs Council, O. A U, Ile-Ife (2011) 14 NWLR (Prt 1269) 193 at 215 -216, Nwoko Vs Ekerete (2010) 4 NWLR (Prt 1183) 159 at 197.
In response to issue 2, learned counsel submitted that Order 3 Rule 8 (2) and Order 17 Rule 16 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 does not envisage a situation where the defendant after filing a counter-affidavit and a reply will still file the processes together after an amendment had been granted for amendment of only the Reply. The extant rules of Court according to the respondents does not prohibit the filing of Reply to originating summons separately without a counter affidavit after a leave to amend has been granted. Thus, a defendant can file these processes together within 21 days after being served with originating summons, but there is no provision excluding separate filing.
In response to issues 3 and 5, learned counsel submitted that Sections 1(1) and 2(1), paragraphs 9 and16 part III of the Schedule to the Taxes and Levies (Approved List for Collection) Act is contrary to the spirit and letters of Section 1(3) of the 1999 Constitution (as amended) which to the extent of the inconsistency should be declared null and void. The extent of the inconsistency therein according to the learned counsel refers to the schedule of the Act where the various taxes are listed.
Still in argument, learned counsel submitted that where as in this case, the term “notwithstanding” is used in a section of a statute; it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. In effect, the word “notwithstanding” is construed as a term of exclusion. He referred to NDIC Vs Okem Enterprises Ltd (2004) 10 NWLR (Prt 880) 107 at 182-183 and Total (Nig) Plc Vs Morkah (2002) 9 NWLR (Prt 773) 429 at 519 to the effect that having commenced its provisions with a clause undermining the authority and supremacy of the Constitution, there is nothing that can operate to save any part of this enactment in question.
It was further submitted that by the combined effect of Section 4(7), 7(1) & (5) of the 1999 Constitution (as amended) and Paragraphs 9 and 10 of 2nd Schedule part II, it is only the State House of Assembly that is vested with the legislative powers under the concurrent and residual list to make laws for the Local Government Council. The National Assembly has no such powers to make laws for the Local Government Council, except under item II of the Concurrent Legislative List for registration of voters and Section 7 (6) (a) for making law in respect of the allocation of public revenue to Local Government Councils within the state. Thus, any law made by the National Assembly for the Local Government Council, for the collection of park fees/levies as in Paragraphs 9 and 16 of Part III of the schedule to the Taxes and Levies (Approved List for Collection) Act should be null and void. He referred to AG Federation Vs AG Lagos State (2013) 16 NWLR (Prt 1380) 249 at 382.
On issue 4, learned counsel for the respondents contended that the 2nd respondent is merely an office not created by any law in Nigeria but merely named by the State Governor for administrative convenience. The 2nd respondent is therefore not a juristic person capable of being sued and the trial Court lacked the jurisdiction to entertain any suit against that office. He referred to the cases of Ibrahim Vs JSC (1998) 12 SCNJ 255 at 274, PGSS Ikachi Vs Igbudu (2005) 12 NWLR (Prt 940) 543 at 556 and Agbonmagbe Bank Ltd Vs General Manager G.B. Olivant Ltd (1961) ALL NLR (Prt 1) to the effect that it is only a juristic person that is capable of being sued and not an office or ministry as in the instant case.
In further contention, learned counsel for the respondents argued that the trial Court did not strike out the name of the 2nd respondent (then 2nd defendant) without affording parties the opportunity to be fully heard on the issue alluding the fact that the respondents have orally sought leave and were granted leaves to raise two issues bordering on the jurisdiction of the Court. These issues are to the effect that the 2nd respondent is non juristic person and that paragraph 17 of the appellant’s further affidavit reveals hostile and contentious issues to be heard under originating summons procedure. He submitted that the issue of juristic personality and mode of commencement of action being an issue of jurisdiction can be raised at any time even at the Supreme Court for the first time. He referred to Elabanjo Vs Dawodu (2006) 15 NWLR (prt 1001) 76, Jev Vs Iyortyom (2014) 14 NWLR (Prt 1428) 575 at 608 and NJC Vs Agumagu (2015) 10 NWLR (Prt 1467) 1467 at 402.
On issue 7, the respondents contended that the trial Court had brought out the real issue in controversy from the facts presented by the parties so as to determine the question. And the issue raised did not cause any miscarriage of justice to the appellant. He submitted that by its decision, the trial Court did not only relied on Paragraph 1 (d) of the 4th schedule to the Constitution but considered other laws including the Road Traffic Law of Akwa Ibom State. He referred to Sections 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the said law in contending that same does not give the appellant the right to charge or collect any levies and fees from tricycles or any other mechanically propelled vehicle.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
He further submitted that Section 20 (i) (e) of the Road Traffic Law did not make any provision vesting the appellant with powers of collecting any fees. The Section is for control of traffic by the Local Government Council which powers are subject to that of the Commissioner who determines the applicability of the said Section 20. And the Commissioner, determines the applicability of the said section by making regulations in accordance with Section 46 (1) including prescribing fees and charges to be collected from the listed vehicles. The Constitution having expressly prohibited the appellant from licensing any mechanically propelled vehicle, no other law can grant the right to collect any fees or levies by the appellant as doing so will be contrary to the spirit and letters of the Constitution.
On issue 8, it was argued that even though the case was adjourned to a date outside the 90 days limit, no miscarriage of justice was shown to have caused to the appellant as the trial Court had considered and determined all the issues raised by the parties in the case except fresh issue raised by the appellant at the point of rejoinder without any leave of Court.
Learned counsel submitted that the essence of Section 294 (1) of the Constitution was to curb the long interval between the receptions of evidence of witnesses and delivery of judgment. It is also meant to curb the presumption that the trial Court might not have made use of its advantages of seeing and observing the demeanour of witnesses who testified before it. This presumption may however be rebutted where the delay complained of did not occasion a miscarriage of justice. He referred to Unity Bank Vs Kwara Chemical Co Ltd & Anor (2019) LPELR – 48468, Dibiamaka Vs Osakwe (1989) 3 NWLR (Prt 107) 101 and Emenimaya Vs Okorji (1987) 3 NWLR (Prt 59) 6 to contend that the judgment of the trial Court now on appeal cannot be declared a nullity in view of sub-section (5) of the said Section 294 of the aforesaid Constitution.
I have stated that learned counsel for the appellant has filed a reply brief. Reply brief are not meant for restating the issues already made in the appellant’s brief. In the reply brief the appellant is expected to address such new issues which the respondent had developed in the respondent’s brief. The appellant’s reply brief in the instant case being a restatement and an improved version of the issues already made in the appellant’s brief shall not be reckon with.
RESOLUTIONS
Both the appellant and the respondents argued issue 1 and 6 together and the appellant main complaint is that there was failure on the part of the trial Court to construe the facts of the case and documents attached to which the originating summons proceedings was predicated upon. Specifically, the appellant complained that the trial Court did not properly evaluate Section 4 of Exhibit A and Exhibits Q, R, S and F attached to the appellant’s affidavit in support of the originating summons.
I have right from the onset reproduced the two questions as contained in the claimant (now appellant’s) originating summons wherein the appellant sought for their determination by the lower Court in praying for the declaratory and injunctive reliefs thereof.
Before tackling this main issue, it may be necessary to point out clearly what does evaluation of evidence consist of. To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc. The proper approach for any trial Court is first set out the claim or claims, then pleadings, then the issues arising from those pleadings. Having decided on the issues in dispute the trial judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be belief based on the preponderance and the probabilities of the case.
After that the trial judge will then record his logical and consequential findings of fact. It is after such a finding that the trial Court can then discuss the applicable law against the background of his finding of the fact. See Adeyeye Vs Ajiboye (1989) 3 NWLR 432 at 451.
To determine whether the trial Court has properly evaluated the facts of the appellant’s case or not, it is pertinent to first of all understand the facts giving rise to the appellant’s claim. In paragraphs 9, 10, 11, 12, 13, 16, 17, 18, 30 and 31 of the affidavit in support of the originating summons, the appellant averred as follows: –
“9. That the claimant had been performing its statutory functions and collecting park fees/levies from commercial vehicles in Uyo Local government Area since its creation until the 2nd half of 2013 when the 2nd Respondent started infringing on the authority of claimant.
10. That the 2nd defendant upon sighting the reviewed bye-law of the claimant in 2013 went public and declared it as a nullity asserting that the claimant has no authority to charge and collect revenue from tricycle motorcycles. Attached hereto and marked as Exhibits A and B are the Motor park Bye-Law of the claimant and the comment of the 2nd defendant published in the “Guide” Newspaper of August 18, 2013.
11. That on or about 6/9/2013, the 2nd defendant set up a 13 man committee to take charge and manage tricycle operations in Uyo Local Government Area even in defiance of petitions by the claimant and relevant trade unions. Attached as Exhibits C1 and C2 are copies of some petition that ensued at the assumption of control of tricycle operations by the 2nd defendants.
12. That up till date, the 1st defendant has not made any law to regulate the collection of daily fees or levies from commercial tricycle motor vehicles in various Local Government Areas of Akwa-Ibom State to avoid multiple taxation.
13. That the 1st defendant through the 2nd defendant rather assumed the collection of daily tolls/levies from commercial tricycles motor vehicles in September, 2013.
16. That the 2nd defendant also charge register and collect registration fee of N3,000 from every commercial tricycle motor vehicle. Attached hereto and marked as Exhibit F is a copy of the receipt issued to commercial motor vehicle at registration.
17. That the registration in paragraph 16 above is different from the licensing of motor vehicle regulated and handled by the motor licensing authority of the 1st defendant.
18. That the 2nd defendant also charge and collect daily and Annual Park fees/levies from other commercial motor vehicles in Uyo Local Government Area. Attached hereto and marked as Exhibits G1-G5 are copies of receipts issued to commercial motor vehicles as parking permits daily and or yearly.
30. That the incorporation of the revenue sources of the claimant has paralyzed the activities of governance/administration of the claimant.
31. That the claimant is aggrieved and seeks for the interpretation of the extant laws as it concern sher right to control charge and collect revenue from commercial motor vehicles including tricycle motor vehicles in Uyo Local government Area of Akwa Ibom State.”
It was also averred by the appellant in paragraph 9 of further affidavit in support of the originating summons thus: –
9. That the assertion of the defendants that it only collects Road Tax is false, illegal and unlawful. Attached hereto and annexed as Exhibits M, N, O, P, Q, R, S and T are documents evidencing the contrary.
It is also pertinent to state at this juncture that Exhibit A been alluded to by the learned counsel for the appellant is the Uyo Local Government Council Bye-Law No. 8 of 2013. Section 4 of the said Law deals with designation of Public Park and it provides: –
“(1) The Uyo Local Government Council hereby designated the places as mentioned in Schedule 1 to this Bye-Law as public motor park for the purpose of this Bye-Law.
(2) The Uyo Local Government Council may, as need arises, designate any other location or place to be used as public motor park.
(3) The Uyo Local Government Council may in consultation with Akwa Ibom State Government or its agency designated areas, locations or points within the area of authority as bus stops for the picking or dropping of passengers and may also designate such areas, locations or points prohibited for dropping or picking of passengers.”
The appellant’s complaint as stated elsewhere in this judgment is that the trial Court did not construe the above provision of the law and some of the vital Exhibits in reaching its decision.
In her judgment at page 328, learned trial judge summed up the appellant’s case in the following words:-
“After due consideration of the facts given by both parties in respect of 2nd question raised in this suit, the main issue identified for determination is –
Whether the claimant has established that by the relevant laws, it is the claimant that has the exclusive legal right to control, charge daily park fees/levies in Akwa Ibom State and/or to register commercial vehicles other than as regulated in the Road Traffic Laws Chapter 115 Laws of Akwa Ibom.”
Learned trial judge after x-raying these laws alongside the Constitution of the Federal Republic of Nigeria, 1999 (asamended) concluded that: –
“It is therefore my considered view that notwithstanding any purported amendment to its bye-laws, the claimant has no legal right to license mechanically propelled vehicle which includes tricycle.”
As regards to the appellant’s vital documents attached to the affidavit in support of the originating summons, trial judge was emphatic that these documents do not in any way established the fact of any breach of the constitutional provisions alleged against the respondents herein. For instance, it was held at pages 326 of the record of appeal that: –
“While Exhibits Q, R, S, T are documents purportedly issued by the defendants to the chairman, Uyo Local Government Council on issues bordering on the nomination of member to the park management committee. It is also observed that none of the letters has specified the type of park, or their locations, i.e. motor park or otherwise.”
In the light of the above, I do not think that the appellant’s complaint against proper evaluation of Section 4 of Exhibit A and Exhibits Q, R, S and T attached to the affidavit in support of the originating summons is justified. There is sufficient evidence that the trial Court adequately considered and resolved these material issues.
In this regards, it has long been settled that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a Court of trial which heard and assessed the witnesses. Thus, where a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. See Akinloye& Anor Vs Eyilola & Ors (1968) NWLR 92 at 95, Evans Vs Adu (1981) 11 – 17 SC 25 at 39,Woluchem Vs Gudi (1981) 5 SC 291 at 320 and Agbeje Vs Ajibola (2002) 1 SC 1 at 6. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court made its findings; the appellate Court cannot interfere. See Akpagbue Vs Oguayoula (1984) 11 SC 72 and Amadi Vs Nwosu at 280.
In the present case, the trial Court having considered not only the Uyo Local Government Council Bye-Lawbut all other laws dealing with the subject matter of the appellants claim together with vital Exhibits, there is therefore abundant evidence on record in support of its finding. I cannot conceive that it is the business of this Court to interfere with the said findings. In other words, the trial Court had properly evaluated the extant laws and the identified vital Exhibits attached to the appellant’s affidavit in support of the originating summons.
The next germane issue relates to the contentious nature of the appellant’s claim before the trial Court. There can be no doubt that the Akwa Ibom State High Court (Civil Procedure) Rules 2009 permit the commencement of proceedings by originating summons. Order 3 Rules 5, 6 and 7thereof provides as follows: –
“5. Any person claiming to be interested under a deed, will, enactment or other written instrument any apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
7. A judge shall not be bound to determine any such question of construction if in his opinion it ought not be determined on originating summons but may make any such orders as he deem fit.”
It is settled based on plethora of judicial decisions that where the facts are likely to be in dispute, it is improper to commence such action by originating summons. See Federal Government of Nigeria Vs Zebra Energy Ltd (2002) 12 SC (Prt 11) 136 at 180 – 181. In National Bank of Nigeria Vs Ayodele Alakija (1978) 9 & 10 SC 59, Kayode Eso, JSC (of blessed memory) said inter alia at page 74-75 thus: -“In Re Giles Real and Personal Co Vs Michell (1890) 43, Ch.D 391, Cotton, LJ believed that originating summons was intended to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way, not to enable the Court to determine matters which involve a serious question.”
In Doherty Vs Doherty (1968) NMLR 241, Ademola, CJN, warned against the use of originating summons in hostile proceedings.
Now adverting to the facts in the instant case, the two questions raised before the trial Court and the facts upon which the appellant predicated his action in my view, deal with very serious questions as to whether the respondents herein have interfered on its control and management of motor parks through Exhibits P, Q, R, S and T.
The learned trial judge while referring to the above documents said at page 325 of the record of appeal thus: –
“The Exhibits are basically founded on facts and same ought to have been tendered by calling evidence to prove the allegations of the claimant against the defendants.”
I cannot but agree with the learned trial judge that considering the facts in the appellant’s affidavit in support of the originating summons, same are hostile and contentious in nature. It was therefore inappropriate to commence the suit at the trial Court by originating summons. I resolved issues 1 and 6 against the appellant.
The appellant’s complaint as regardissue 2 is that the respondent counter-affidavit filed on 9/12/2015 was no longer relevant to the respondent’s case, after seeking and obtaining leave to amend and to deem their amended reply to the amended originating summons of the appellant filed on 22/4/2016. It was the contention of the appellant that a reply to the originating summons cannot be filed in fragment.
The question here is what was the effect of the amendment to the respondent’s reply to the amended originating summons? The law is settled that once ordered what stood before an amendment of either a writ of summons or the pleadings is no longer defines the issue to be tried. See Grace Amanabu Vs Alexander Okafor & Anor (1960) 1 All NLR 205, Warner Vs Simpson (1952) 9 NWLR 109 and Agbabiaka Vs Saibu (1998) 7 SC (Prt 11) 167 at 180.
The provision of Order 3 Rule 8 (2) of the Akwa Ibom State High Court (Civil procedure) Rules provides that an originating summons shall be accompanied by: –
(a) an affidavit setting out the facts relied upon,
(b) all the documentary Exhibits to be relied upon, and
(c) a written address in support of the application.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Similarly, by Order 17 Rule 16 of the said Rules, a defendant to an originating summons is required to file a counter affidavit together with all the Exhibits he intends to rely upon and written address within 21 days after service of originating summons.
Parties are ad idem that the respondents had complied with the provision of Order 17 Rule 16 above. And by leave of the trial Court, the respondents amended their reply but not the counter affidavit. Now can the amendment to the reply tantamount to abandonment of the counter affidavit? I do not think so because the rules of Court did not imply that an amended reply cannot be filed separately or that an amended reply is a substitute to a counter affidavit. There is no doubt that a trial judge or an appellate Court have power to allow all such amendments as are necessary to enable justice be done to the parties. Thus, an amendment will be allowed on terms at any stage of the proceedings before judgment. It is trite that the basic principle governing the granting of leave to amend is for the purpose of determining the real issue in controversy before the parties. In other words, the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with theirs. See A.V. Amadi Vs Thomas Aplin& Co (1972) 1 All NLR (Prt 1) 409 and Alsthom S.A. Vs Saraki (2000) 10 – 11 SC 48 at 64-65. In so far as the respondents’ amendment relates to other process not their counter affidavit, there cannot be any basis to discountenance their said counter-affidavit filed within 21 days after service of the originating summons on them. Issue 2 is resolved against the appellant.
The gravamen of the appellant’s complaint on issues 3 and 5 are that the trial Court lacked jurisdiction to have considered the issue relating to the constitutionality of the Taxes and Levies (Approved List for Collection) Act for failure to specifically raise the objection in their pleadings (counter affidavit). The appellant also contended that the entire provisions of the Taxes and Levies (Approved List for Collection) Act is not null and void by reason of the ouster clause at the beginning of the Act.
I need to stress that the appellant had approached the trial Court by means of originating summons for the interpretation of certain sections of the Taxes and Levies (Approved List for Collection) Act wherein issue on it was joined by the parties. In particular, the respondents’ position was that the commencement clause to wit – “Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria, 1979” undermines the supremacy of the Constitution. That being the case, the respondents have submitted and I entirely agree with the said submission that they do not require any filling of an objection in a formal way to raise such an issue.
Turning back to the issue of the constitutionality of the said Taxes and Levies (Approved List for Collection) Act Cap. T2 of 2004, Section 1(1) of the law provides as follows:-
“(1) Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria, 1979, as amended or in any other enactment or law, the Federal Government, State Government and local Government shall be responsible for collecting taxes and levies listed in part I, Part II and Part III of the schedule to this Act, respectively.”
When the term “Notwithstanding” is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. The Supreme Court in the case of NDIC Vs Okem Enterprises Ltd also reported in (2004) 4 SC (Prt 11) 77 at 111 interpreted Section 251 (1) of the 1999 Constitution which begins with the same phrase “Notwithstanding anything contained in this Constitution” and held that the use of the word “Notwithstanding” means that no provision of that Constitution shall be capable of undermining the said Section. In Fescum & Co Ltd Vs F.A.A.N (2015) 14 NWLR (Prt 1480) 491 at 506-507 the apex Court also held that the opening phrase “Notwithstanding anything in any other enactment” in Section 20 of the FAAN Act is a phrase of exclusion which accords the said statutory provision pre-eminence and having a precedence over and above other provisions of any other enactments.
The appellant in this case is not contesting the overriding effect of the phrase “Notwithstanding” but argued that it is only the ouster clause that is a nullity by reason of the provisions of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The supremacy of the Constitution is never in doubt and Section 1(3) above is to the effect that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of its inconsistency be void. I am also of the view that having commenced its provisions with a clause that undermines the supremacy of the Constitution, there is nothing that can operate to save any part of that law.
Thus, the virus in the introductory clause of the Act has infested the entire Act and thereby rendering it unconstitutional. I have considered the decision of this Court in Eti-osa Local Government Vs Jegede (supra) being relied by the learned counsel for the appellant. The crux of the matter in that case is whether the appellant has the authority to impose corporate outfit Byelaws outside the provisions of Part III of the Taxes and Levies (Approved List for Collection) Decree No. 21 of 1998 and without reference to the Joint Tax Board provided for in Section 1(2) of Decree No. 21 of 1998.
In affirming the ruling of the trial Court, this Court per Dongban – Mensen, JCA (as he then was) agreed that the powers of the Local Government to make Byelaws are subject to the enabling law which gives the Local government power to collect taxes. In other words, the Local Government has no inherent powers to legislate nor create and impose taxes outside the scope of Decree No. 21 of 1998 nor the 4th Schedule of the 1999 Constitution. That being the case, this Court held that there is nothing unconstitutional with the requirement of the Local Government, the third tier of Government to root its taxes through the Joint Tax Board.
The issue in contention here is not that of rooting the taxes of Uyo Local Government through the Joint Tax Board, but whether in view of the supremacy of the Constitution, the provision of Taxes and Levies (Approved List for Collection) Act which commenced with the phrase “Notwithstanding” anything contained in the Constitution is void by reason of Section 1(3) of the 1999 Constitution.
I dare say that the facts and circumstances of the two cases are not mutually the same. Had the issue of hierarchical positions of the Taxes and Levies (Approved List for Collection) and the 1999 Constitution been canvassed in the case of Eti-Osa Local Government Vs Jegede (Supra), this Court would have arrived at the conclusion that in so far as the provisions of the Constitution are made subordinate to that of the Act, such provisions of the Act are to the extent of its inconsistency be void. I accordingly resolved issues 3 and 5 against the appellant.
The main issue in contest as regard issue 4 is the striking out of the name of the 2nd respondent by the trial Court which the appellant argued was in breach of its right to fair hearing as the issue of non-juristic personality of the 2nd respondent was never raised.
First of all, the audi alteram partem rule places an obligation to hear the other side of a dispute or the right of a party in a dispute to be heard. Thus, it is a basic and fundamental principle of our adjudicatory system of the determination of disputes which cannot be compromised on any ground. In Ebenezer Nwokoro & Ors Vs Titus Onuma & Anor (1990) 3NWLR (Prt 136) 22, Karibi – Whyte, JSC aptly put at page 31 thus: –
“It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation must be heard before the Court determine his civil rights or obligations before it.”
The question is was the appellant heard before the trial Court struck out the name of the 2nd respondent? Contrary to the submission of the learned appellant’s counsel, parties joined issue on the 2nd respondent’s juristic personality at pages 309 – 310 of the record of appeal. Learned counsel for the defendants (now respondents) raised an objection to the status of the 2nd respondent and submitted that same is not a juristic person. In response, S. O. Inwang, Esq said: –
“I do not have any response to the issue raised because parties have already joined issues and filed addresses. We maintain our position in bringing the commissioner, Ministry of Transport, as a party to this action since He, Hon. Ndukude was one who gave the orders for the state to collect the said taxes and levies from motor parks.”
It was on the strength ofthe foregoing that the trial judge ruled that: –
“In view of what has been said, the Court shall in giving judgment pronounce on the issues raised if found to be necessary.”
It is therefore not correct to say that the appellant was not given the opportunity to react to the issue in contention and thus afforded an opportunity of been heard by the trial Court. It is also the law that the issue of juristic personality and the mode of commencement of action being an issue of jurisdiction, can be raised at any time and even for the time at the Supreme Court. See Elabanjo Vs Dawodu (2006) 15 NWLR (Prt 1001) 76.
The next germane question is whether the 2nd respondent is a juristic person that is capable of being sued? Legal personality can only be conferred by statute. It may however be conferred for a limited purpose as in the cases of qualified legal personality. There is no doubt that a person who can sue or be sued in Court must be a person known to the law i.e. a legal person. And where it is shown that a party to an action is not a legal person, that party should be struck out of the suit. See Fawehinmi Vs NBA (No 2) (1989) 4 SC (Pt1) 63 at 135. In Ibrahim Vs J.S.C. Kaduna State (Supra), the Supreme Court resolved that the civil service committee being one of the four statutory bodies established at state level under Section 178 of the 1979 Constitution, it is a statutory body, a legal personality capable of suing and/or being sued.
In the instant case, the 2nd respondent is not established by any law but merely named by the State Governor for administrative convenience. It cannot therefore sue or being sued and hence not a legal personality. The trial Court was perfectly right in striking out its name and this issue is resolved against the appellant.
On issue 7, the appellant’s contention is that the trial Court misconstrued its claim when it relied on Paragraph 1(d) of the 4th Schedule to the Constitution to hold that it has no legal right to license mechanically propelled vehicles inclusive of tricycles. In other words, the findings and conclusion reached by the trial Court according to the appellant was not borne from the appellant’s claim.
I have somewhere reproduced the two questions which the appellant asked the trial Court to interpret as forming the nucleus of its claim as well as some vital paragraphs of the supporting affidavit together with the annexed Exhibits. To underscore the point, it is pertinent to once more reproduce the appellant’s question No. 2 in order to ascertain whether the judgment of the trial Court was confined to the issues as presented to it or not. The said question No. 2 reads as follows: –
“Whether by the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Taxes and Levies (Approved List for Collection) Act 2004, the Road Traffic Law Cap. 115 Laws of Akwa Ibom State and the Akwa Ibom Local Government (Administration) Law 2007 (as amended), the defendants herein and or any of their agents has the legal right to control and or charge daily park fees/levies and other commercial vehicles other than s regulated in the Rural Traffic Law Cap 115 Vol. 5 Laws of Akwa Ibom State.”
In its quest to answer the appellants’ question No. 2 above; learned trial judge at page 328 of the record of appeal said:
“After due consideration of facts given by both parties in respect of the 2nd question raised in this case, the main issue for determination is –
Whether the claimant has established that by the relevant laws, that, it is the claimant that has the exclusive legal right to control, charge daily park fees/levies from commercial tricycles and other commercial motor vehicles in Akwa Ibom State and/or to register commercial vehicles other than as regulated in the Road Traffic Law, Cap 115 Laws of Akwa Ibom State.”
It was the appellant’s contention that by the above, the trial Court had upturned, mis-stated and misrepresented question 2 posed by the appellant in the originating summons.
A careful perusal of the issue raised by the trial Court shows that same is similar with the same question posed by the appellant except for matters of semantics. It is no doubt the primary duty of Courts to identify and decide on issues in dispute between the parties before them. However, where an issue for determination is wrongly formulated, the Court can suomotu correct the wrongly formulated issue. After all, it is a fundamental function of Court to do justice to the parties who appear before it in its pursuit of due and proper administration of justice. To that end, the Court cannot close its eyes to obvious errors committed by counsel where such error can lead to injustice if left uncorrected. So long as it will not lead injustice to the opposite side, Court possess the power to reject, modify or re-frame any or all issues formulated by the parties after careful consideration of the issues as set out by the parties. It is never in doubt that the trial Court was right in bringing out the issue so as to adequately determine the dispute between the parties. In Akpan Vs State (1992) 6 NWLR (Prt 248) 439 at 446, Karibi-Whyte, JSC said: –
“I find it a little difficult to apprehend why Mr. Okonkwo thinks that the Court cannot suomotu correct a wrongly formulated issue for determination.”
It was also contended by the appellant that the trial Court in its judgment only relied on Paragraph 1(d) of the 4th Schedule to the Constitution and thereby misconstrued the appellant’s case.
Judgment of the Court must demonstrate that the Court understand the case before it and elicit an open and full consideration of the issues properly raised by the parties on their pleadings as supported by evidence. Thus, the conclusions reached ought to reflect and justify such an exercise. See Kalio Vs Woluchem (1985) 1 NWLR (Prt 4) 610 at 622.
The question here is did the trial Court fails to discern the real question which was presented by the appellant in its reasoning? At page 328 of the record of appeal, learned trial judge also found that: –
“The claimant had admitted in its affidavit that it had amended its byelaws to enable it collect the said levies and fees from tricycles and commercial vehicles. At this point, it is necessary to refer to the provisions of the superior legislations regarding the said amendment.”
Learned trial judge thereafter concluded thus: –
“Now by the provisions of Section 1(d) to the fourth schedule of the Constitution of the Federal Republic of Nigeria 1999 that Local Government Council are only empowered to license bicycles and trucks other than mechanically propelled trucks. This is a constitutional provision which supersedes every other legislation. See Section 1(1) and (3) of the Constitution. It is therefore my considered view that notwithstanding any purported amendment to its byelaws the claimant has no legal right to license mechanically propelled vehicle which includes tricycles.
And except the house of Assembly by legislation confers, assign and/or delegates the said functions to the Local Government Council, the claimant would be acting ultra vires in collecting such levies and fees from tricycles which are mechanically operated vehicles.”
I have already found that the modification of question 2 of the appellant did not change the character of the issue presented to the trial Court and therefore properly raised. It is also my view that the above abstract of the judgment flows from the facts as found and from the operation of the law on those facts. It is therefore wrong to assume as done by the appellant that the judgment now on appeal did not take into account of other relevant laws except Section 1(d) to the fourth schedule of the 1999 Constitution (as amended). The trial Court indeed considered other laws in coming to the conclusion that the claimant would be acting ultra vires in collecting levies and fees from tricycles which are mechanically operated vehicles. Issue 7 is also resolved against the appellant.
Finally on issue 8, the appellant is challenging the validity of the judgment now on appeal on the ground that same was delivered outside the 90 days limit. The provision of Section 294 (1) deals with determination of causes and matters. It specifically provides as follows: –
“294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
However, by virtue of subsection (5) of the said Section 294, the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of sub section (1) above unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason of such delay in delivering the judgment.
The positions of the law is that a party should not just go on appeal merely on the ground that the judgment he wants set aside was given outside the ninety days or three months period as the case may be. He will have to fight the appeal on all known grounds which can render the judgment unsustainable, not merely on the assessment of facts in view of subsection (5) of Section 294 of the 1999 Constitution (as amended). That being the position, an appellant in this regard must show that the evidence was not properly evaluated and if that leads to a miscarriage of justice, he will succeed in having the judgment set aside. See Owoyemi Vs Adekoya (2003) 12 SC (Prt 1) 1 at 24.
In the instant case, the appellant’s counsel made some effort at showing that the judgment of the trial Court do not reflect the actual case presented by the parties – citing the proceedings of the Court of 30/6/2016 wherein the name of the 2nd respondent was struck out.
I have elsewhere in this judgment held the view that issues on the juristic personality of the 2nd respondent was duly joined by the parties and rightly considered by the trial Court. And that the parties were afforded reasonable opportunity for their claims to be adequately investigated and determined upon their merits. Thus, the appellant has failed to show improper evaluation that leads to miscarriage of justice. Issue 8 is undoubtedly resolved against the appellant.
Having resolved all the eight issues against the appellant, I hold that this appeal lacks merit and accordingly dismissed. I award N50,000 costs in favour of the respondents against the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu. JCA. My learned brother has carefully dealt with the eight (8) issues nominated for the determination of the appeal. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and ought to be dismissed.
I abide with the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of in draft the judgment just delivered by my learned brother, Muhammed L. Shuaibu, J.C.A. I agree with the conclusion arrived at in the lead judgment of my learned brother that the appeal lacks merit. It therefore fails and is also dismissed by me.
I abide by the order of costs as assessed by his Lordship in the lead judgment.
Appearances:
OtuInwangFor Appellant(s)
Bassey Ekanem, (with him, Sharon E., Asst. Chief State Counsel and OtobongIkpong, SSC, MOJ, AKS)For Respondent(s)
