➥ CASE SUMMARY OF:
Independent Television/Radio v. Edo State Board of Internal Revenue (2014) – CA
by PipAr Chima
➥ COURT:
Court of Appeal – CA/B/20/2013
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 28th day of May, 2014
➥ AREA(S) OF LAW
Tax payment;
Ex parte application for distrain;
➥ NOTABLE DICTA
⦿ ACT OF NATIONAL ASSEMBLY SUPERCEDES RULES OF COURT
Thus, even though the Rules of court are to be followed, in cases whereby an Act of the National Assembly provides for a special procedure to be adopted by the courts in doing a thing, the Act of the National Assembly shall supersede the provisions of the High Court Rules. We must not lose sight of the fact that the High Court Rules are adjectival rules rather than substantive law and can never supersede an enactment of the National Assembly. – H.M. Ogunwumiju, JCA.
⦿ NON-COMPLIANCE WITH RULES OF COURT CANNOT ROB THE COURT OF JURISDICTION
We must not also be oblivious of the fact that non-compliance with Rules of court though amounts to serious irregularities in procedure, it cannot rob the court of jurisdiction and cannot render the decision of the court void. – H.M. Ogunwumiju, JCA.
⦿ SPECIAL PROVISIONS DEROGATE FROM GENERAL PROVISIONS
The law is settled that in the interpretation of statutes, special things derogate from general things (generalibus specialia derogat). Where there is a conflict between two legislations one of which is special on a subject and the other legislation is general in nature, the legislation that is special in nature shall supersede. – H.M. Ogunwumiju, JCA.
⦿ COURT IS TO RULE ON ALL APPLICATIONS BEFORE DELIVERING ITS FINAL JUDGMENT
There is no doubt that the law is settled that where there are pending applications before a court, the court is duty bound to rule on all applications before it before delivering its judgment. There are plethora of authorities in this regard. See Mobil v. Monokpo (2001) FWLR Pt.78 Pg.1210; Mokwe v. Williams (1997) 11 NWLR Pt.528 Pg.309; Savannah Bank Nig. Ltd v. SIO Corporation (2001) 1 NWLR Pt.693 Pg.194. – H.M. Ogunwumiju, JCA.
⦿ PROVISION OF STATUTES ARE TO BE TAKEN AS A WHOLE
The position of the law is that when interpreting statutes, the provisions of the statute are to be taken as a whole and the review of any section therein cannot be severed from other sections. – H.M. Ogunwumiju, JCA.
⦿ FAILURE TO USE FAIR HEARING OPPORTUNITIES GIVEN
It is settled law that when a party is given the opportunity (and in this case opportunities) to be heard and such party fails to utilize it, such party cannot hide under the umbrella of the fair hearing rule. He will fail. Again, I agree with Olu Daramola (SAN) that the position of the law is that where a party has been afforded the opportunity to be heard (in this case several opportunities) and such party fails to utilize it, the party cannot approach an appellate court and claim to have been denied fair hearing. – H.M. Ogunwumiju, JCA.
⦿ REVENUE PROVISIONS WILL BE CONSTRUED IN FAVOUR OF PUBLIC INTEREST
Let us not forget that the tax being scuffled over is the tax of the appellant’s employees from 2005-2010 which would have long time been deducted from the employees’ salaries but which the appellant failed to remit to the appropriate authority. The tax of 2011 to date has not yet become an issue. I must say this is a most despicable way for any taxpayer to act and it is seriously detrimental to the development of any nation. Following the decision of the court in Phoenix Motors Ltd v. NPFMB (Supra), I am of the view that since the statute under scrutiny is revenue oriented, the interpretation must be construed liberally in favour of deriving revenue by government in the interest of the public. I also firmly agree with the view of the Hon. AG of Lagos, Mr Ade Ipaye that tax payment is an obligation of a citizen according to S.24(f) of the Constitution. Failure of the citizen to pay tax shall strip him of the protection clothed him by S.44(1) of the constitution. – H.M. Ogunwumiju, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief (Dr) Alfred O. Eghobamien (SAN).
⦿ FOR THE RESPONDENT
Odabi Kingsley Esq.
⦿ Amicus curiae
Ken Mozia (SAN);
Chief Fred Orbih (SAN);
Olu Daramola (SAN);
Mr Lawal Esq.;
Mr Ade Ipaye, the Attorney-General of Lagos State;
Dr. Oladapo Olanipekun;
Mr. B. O. Odigwe;
Ojibara Esq.;
B.O. Odigwe.
➥ CASE HISTORY
The Respondent commenced an action before the High Court of Edo State by a motion Ex Parte dated 1/11/2012. This motion was supported by a 3 paragraph affidavit, one Exhibit and written address filed on the said 1/11/2012.
The Applicant prayed the court for the following: 1. An order to distrain upon the land, premises or place of business in respect of which the Defendant is the owner at Glass House Airport Road and Communication Village, Oluku, Benin City. 2. An order to distrain against any movable goods, chattel, bond or securities or any kind of property belonging to the defendant in satisfaction of the liability established against the defendant as final and conclusive taxes due to the Applicant.
The trial Court granted the prayers sought against the Defendant/Appellant.
The Appellant further filed a motion praying the Court to discharge the orders granted in the ex parte motion. The Court ruled, inter alia, “The defendant/applicant pay the sum of N12,882,596.43 as contained in the order of court made on 2/11/2012 into the confers of the Treasury of Edo State Government.”
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
I. Whether the learned trial judge lacked jurisdiction to adjudicate on the matter?
RULING: IN RESPONDENT’S FAVOUR.
A. I agree with the appellant’s counsel’s contention that in general matters, urgency must be proved and that there must be a substantive action before a party can file ex parte application as provided under Order 3 Rule 1; Order 37 Rule 6 and Order 36 Rule 1 (3) of the Edo State High Court Rules. However, I do not agree that this is a question of the lack of jurisdiction of the trial judge to grant the ex parte Order. Rather, this court is being asked to review both the discretion of the learned trial judge and to declare the Order a nullity because the appellant did not seek the Order in the prescribed form.
B. The prescribed form of seeking the application as stated in S.104(3) of the Personal Income Tax Act is a mere application to a High Court Judge sitting in chambers; Better still with an affidavit to support the application which must be in writing. We must note that this provision under Sec.104 PITA has made any application in pursuance of the section a special procedure. In my humble view, and from all the points of law set out above, the procedure adopted by the Lower Court in granting the ex parte Order filed on 2/12/12 was proper. A formal motion was filed, argued and followed by a proper Order.
.
.
II. Whether in the circumstances of this case, the learned trial judge was right in making the orders it made on 6/12/12 which said orders are the subject of this appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. The appellant abandoned its motion on notice filed on 9/11/12 which would have forced the court to consider the fact that there were conflicting figures being touted by both parties in the dispute. Contrary to the rules of court, it decided to file and pursue a motion ex parte when a motion on notice by it was pending. The appellant cannot turn around to complain against that which it had chosen. Volenti non fit injuria is apt in this case.
B. However, we have to consider the special circumstances of this case. We must consider the principles and policy relating to tax issues. If counsel are allowed to indulge in the hide and seek tactics inherent in our adversarial jurisprudence, the purpose of specialized tax laws and regulations would be defeated.
.
.
III. Whether Section 104 of the Personal Income Tax Act Cap. P8, Laws of the Federation as amended in 2011 is unconstitutional?
RULING: IN RESPONDENT’S FAVOUR.
A. It is beyond contention that the appellant is entitled to the rights listed in the sections above. We must however note that the constitution itself at S.44(2) qualifies the appellant’s freedom from compulsory acquisition of property by allowing compulsory acquisition of property for the sake of enforcement of tax as follows: (3) Nothing in subsection (1) of this section shall be construed as affecting any general law; (a) For the imposition or enforcement of any tax, rate or duty.
B. Owing to the provision of S. 44(2) (a) of the constitution above, the question of whether S. 104 of PITA offends the tax payer’s right to own property, privacy and freedom from compulsory acquisition of property is of no moment in matters of tax enforcement. To argue contrary will be to argue that because a debtor has freedom from compulsory acquisition of property, his property cannot be taken even when a court Order for enforcement of debt payment is given. Let us not forget that the position of a taxpayer who has failed to pay the tax due is that of a debtor. As such, to that extent, S. 104(2) of PITA is constitutional.
C. S.44 of PITA allows a taxpayer to do self-assessment of tax to know his tax liability. If he does not do so, S.54 empowers the tax authority to do the assessment of the taxpayer’s income tax. After the tax authority completes the tax assessment, it serves the assessment on the taxpayer as provided for in S.57. The taxpayer, upon receipt of the assessment from the tax authority is empowered under S. 58 to revise the assessment and raise objection(s) if need be. In fact, such taxpayer is entitled to write to the tax authority stating his objections and the tax authority is under the obligation to look into the matter and arrange meeting(s) with the affected tax payer to resolve the discrepancies in figures. See Lagos State Internal Revenue Board v. Odusanmi (1979) NCLR 421, (1979) 3 LRN 119. Also S. 59 provides for how both the tax payer and the tax authority can handle errors and defects in assessment and notice. Where after all the above processes, the tax payer has refused to pay and/or the parties have not been able to agree on a definite amount or other issues arise, S.60 in establishing Tax Appeal Tribunal allows an aggrieved party to approach the Tribunal on cases arising from the operation of the Act. We must however note that S.98 provides that tax is payable notwithstanding mediation or appeal proceedings. Where all the efforts at resolving dispute and effecting tax payment above has failed, S. 104 gives the tax authority the power to distrain the tax defaulter’s property pursuant to an ex parte application to a High Court Judge … To my mind, the PITA affords the taxpayer, numerous opportunities of airing his objections and it is where it has been seen that he has refused to use the opportunity and has in the same vein failed to pay up the tax that the tax authority is then empowered to apply to distrain. Lets us also not forget that if the tax authority fails to convince the court that it has complied with the law, the court will reject the application even though it is ex parte and not contended by the other party.
D. Below are the opportunities to be heard offered to the taxpayer under the PITA: (a) The service of the notice of assessment on him by the tax authority allows him 30 days to scrutinize it and raise his objections in writing addressed to the tax authority. (b) Upon failure to object within time, the taxpayer has the option of proceeding to the Tax Appeal Tribunal to air his grievances-S.60 PITA (c) Upon the information of a pending motion ex parte before the High Court, the tax payer can apply to the court to put the tax payer on notice thereby converting the motion ex parte to on notice upon ability to convince the court of its need, (d) After the warrant to distrain has been issued, the taxpayer has 14 days to pay up tax and if he intends to contest the warrant, appeal to the court of appeal. (e) If the court of appeal upturns the taxpayer’s appeal, he still has the right to appeal to the Supreme Court. Where the taxpayer has failed to utilize any of the listed opportunities that the law affords him to be heard, such person cannot run to the same law to cry foul.
The Court of Appeal concluded by looking at some factual milieu of the case:
The respondent sent to the appellant an assessment of tax liability valued at N19,199, 947.18 via a letter dated 10/02/2012 marked as Exhibit B3 and at page 27 of the record. The tax authority/respondent on 16/03/2012 wrote a letter inviting the appellant to a meeting for reconciling the tax position with the Board. Upon failure of the appellant to attend that meeting, the respondent on 19/03/2012 wrote another letter inviting the appellant for another tax review meeting on 22/03/2012 at page 31 of the record. The appellant failed again to attend the tax review meeting stated for 22/03/2012 and on 27/03/2012, the respondent wrote another letter to the appellant inviting it for another tax review meeting stated again for 30/03/2012 as in page 32 of the record. Again, the appellant did not honour the invitation. On 25/04/2012, the respondent wrote another letter inviting the appellant for tax review meeting stated for 30/04/2012 but later postponed it to 2/05/2012 as in pages 33 and 34 of the record. As contained in page 35 of the record, the respondent, on 15/05/2012 wrote another tax review meeting invitation letter to the appellant stated for 21/05/2012. The appellant still failed to attend the meeting. On 23/05/2012, the respondent wrote the 7th letter of invitation to the appellant and the meeting was stated for 28/05/2012 yet the appellant failed to attend. On 31/05 /2012, the respondent in its 8th letter to the appellant fixed another meeting tor 5/06/2012. The 9th letter was inviting the appellant for a meeting stated for 20/07/12 but the defaulting tax payer/appellant still did not attend the meeting. The 10th letter of invitation for tax review was written by the respondent to the appellant on 16/08/2012 for a meeting slated for 28/08/2012. Finally, on 7/09/2012 there was a tax review meeting between both parties at the State Board of Internal Revenue where the appellant’s tax liability was reduced to N15,199,947.18 and the appellant was given seven days to pay up the said sum. The appellant paid the sum of N2,317,350.75 to the tax authority on 12/09/2012 being PAYE tax for 2005-2010 as contained in pages 25 and 26 of the record. It is overwhelmingly beyond doubt that the respondent/tax authority had exercised unreasonable patience with the appellant who kept frustrating the respondent’s invitation for tax review. How then can such party who was given ten different invitations for tax review meeting but failed to attend, now come to the court to have been deprived of fair hearing? I am of the firm and humble view that the respondent followed the provisions of PITA even to an overstretched extent and that the distraining order given against the appellant was a well deserved one.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 37, 43, 44, Nigerian Constitution 1999 (as amended);
Sections 44, 54, 57, 104 Personal Income Tax Act Cap P8 of 2004 (as amended in 2011);
Order 37 Rule 6 of the Edo State High Court (Civil Procedure) Rules 2012;
➥ REFERENCED (CASE)
⦿ RULES OF COURT ARE NOT AS SACROSANCT AS STATUTORY PROVISIONS
In Clement v. Iwuanyanwu (1989) NWLR Pt. 107 Pg. 39 per Ogbuagbu JSC held that: “Rules of courts are not as sacrosanct as statutory provisions of law. A rule of court, cannot confer jurisdiction. It only regulates the practice of the court in the exercise of a power derived aliunde (from another source or from elsewhere) and does not confer power. See Ogunremi v. Dada (1962) 2 SCNLR 417; 1962 1 ANLR 663 and Cropper v. Smith (1883) 24 CH.D”
➥ REFERENCED (OTHERS)
Maxwell On Interpretation of Statutes (11th Edition) at Pg.164 states that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one.
