MANAGING DIRECTOR, MOTHER COOL V E. D. TSOKWA & CO.
April 1, 2025MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA V IJANDIR ISAAC SAMUEL YARAI
April 1, 2025Legalpedia Citation: (2020) Legalpedia (CA) 01819
In the Court of Appeal
HOLDEN AT YOLA
Sun Jun 7, 2020
Suit Number: CA/YL/148/2018
CORAM
PARTIES
TRANSMISSION COMPANY OF NIGERIA P.H.C.N
ADAMAWA STATE BOARD OF INTERNAL REVENUE
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
By an amended Writ of Summons, the Plaintiff/Respondent in the Adamawa State High Court sitting in Yola, claimed against the Defendants/Appellants the following, among others: the sum of N18, 007,187.29, being the under deduction and unremitted pay as you earn PAYE of the defendant employees resident within the State for the period 2012-2013, the sum of N1, 800,718.72 being 10% statutory penalty per annum on the above sum. The sum of N23, 229,271.59, being the grand total of the claim; and cost of this suit. The Respondent’s application for summary judgment was moved but was overruled. Leave was granted to the Appellant to defend the suit on the merits. Trial commenced and in the course of the trial the Appellant filed a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the court. It was overruled. Dissatisfied with the trial court decision, the Appellant filed this appeal.
HELD
Appeal Allowed
ISSUES
Whether the trial court has jurisdiction to entertain the Respondent’s suit having regards to the weight of the statutory provision of Section 39 of the Adamawa State Board of Internal Revenue Law 2007? Whether the trial court was right in deciding that the Respondent has a cause of action against the Appellant in the absence of the proper party against whom the purported claim subsists?
RATIONES DECIDENDI
JURISDICTION OF COURT- IMPLICATION OF A STATUTE SPECIFICALLY DONATING JURISDICTION TO A COURT
“The Adamawa State Board of Internal Revenue Law, 2007 Section 39 (1) provides:-
Without prejudice to any other provision of this Law or any other relevant Law, any amount due by way of tax shall constitute a debt due to the State and may be recovered by a civil action brought by the board before the State Revenue Recovery Tribunal.
The law is trite that where a statute had identified a Court and donated to it exclusive jurisdiction over a particular cause of action, the Jurisdiction of other Courts not similarly mentioned appeared to have been ousted. In Nigerian Bank of Commerce and Industry v. Dauphin Nigeria Ltd. (2014) 16 NWLR (Pt. 1432) 90 at 106 Para. B this Court Held that:-
Where a statute has identified a Court and donated to it an exclusive Jurisdiction over a particular cause of action, the jurisdiction of other Courts not similarly mentioned would appear to have been ousted – S.C.C (Nig.) Ltd. v. Sedi (2013) 1 NWLR (Pt. 1335) 230 at 244. Therefore the Federal High Court was not the right court to try the case. On this threshold alone, the claim is one that ought to have been struck out in the court below.
From the decision of the lower Court as shown at Page 188 of the printed record, it revealed that the lower Court read Section 39 of the Adamawa State Board of Internal Revenue Law and Section 78 of the Personal Income Tax (Amendment) Act, 2011 in isolation. This is because it imported an inapplicable statutory provision (the Act) to justify its assertion that the Magistrate Court has jurisdiction to entertain the matter, while the said Act which has been domesticated into a State law (Adamawa State Board of Internal Revenue Law) and which excluded both the High Court as Court of first instance and the Magistrate Court conferred jurisdiction on the Tax Recovery Tribunal. It is important to note that while the Personal Income Tax (Amendment) Act, 2011 governs Federal Taxations; the Adamawa State Board of Internal Revenue Board Law governs Adamawa State Pay as You Earn Tax and prescribes the Revenue Recovery Tribunal as the lawful Court to entertain such State matters.”
ISSUE OF JURISDICTION- IMPLICATION OF A COURT EXERCISING JURISDICTION IN A MATTER, WHICH IT DOES NOT POSSESS
“In Usman v. State (2014) AFWLR (Pt. 746) 412 at 445 Paras. C-E the Supreme Court Held that:-
There is no doubt that every Court is endowed with jurisdiction by Statute or the Constitution and where a Court exercise jurisdiction in a matter which it does not possess, the decision from such an exercise is a nullity. Therefore every Court must assure itself that it has the requisite jurisdiction before embarking on the hearing of the matter to avoid a waste of precious judicial time.
In the instant case, the lower Court embarked on hearing the matter knowing very well that it had no jurisdiction to do so going by the provision of the Adamawa State Board of Internal Revenue Law, 2007. See further the case of Ogologo v. Uche (2005) 14 NWLR (Pt. 945) 245 Para. E Ratio 2 where it was Held that:-
Where a law has given exclusive power to a body to decide a matter, the Court cannot come in before that body has exercised that power. It can come in only where there is exhaustion of all remedies before that body and the Court will then be able to decide whether that power had been exercised lawfully.”
LEGISLATION ON TAXATION – PROPRIETY OF A STATE HOUSE OF ASSEMBLY MAKING LEGISLATION ON TAXATION
“It is the position of the Respondent as reflected at Pages 3-6 Paragraphs 3.06 – 3.10 of the Respondent’s Brief that the Adamawa State House of Assembly has no right to make any legislation on taxation since same is under the exclusive legislative list. In fact at Paragraph 3.07, the Respondent submitted that it was a no go area for State Assembly by virtue of Sections 4 (3) and 4 (7) (a) of the 1999 Constitution (as amended). It is important to note here that taxation is an item on both the exclusive and concurrent legislative lists. It therefore follows that both the National Assembly and the States Houses of Assembly have the legislative powers to legislate on taxation which they both did; while the Personal Income Tax Act, 2011 (as amended) covers Federal Taxations, the Adamawa State Board of Internal Revenue Board Law, and 2007 covers State taxation.”
PARTIES IN A SUIT- NECESSITY OF THE IDENTIFICATION OF THE PROPER PARTIES IN A SUIT
“For a suit to succeed the proper parties against whom rights and obligations arising from the cause of action must be properly identified. In Ehidimhen v. Musa (2000) FWLR (Pt. 21) 930 at 962 Para E-H the Apex Court held:-
It is imperative that for an action to succeed, the parties must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach…..”
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PROPER PARTIES- IMPLICATION OF A FAILURE TO PRESENT THE PROPER PARTIES BEFORE THE COURT
“As I earlier stated in this Judgment NELMCO was specifically created to assume the assets and liabilities of the defunct PHCN with a view to ensuring that all rights and claims against PHCN are settled by NELMCO. The case as constituted and determined by the lower Court without NELMCO was improperly constituted and thus incompetent. In the case of Alhaji Lawan Sarkin Tsaha v. Union Bank of Nigeria Plc. (2002) FWLR (Pt. 97) 765 at 771 Para E-F the Supreme Court Held that:-
There can be no argument that the action was improperly constituted. The parties ought to have been the Respondent Bank and the Board. Not having been properly constituted, the suit was incompetent. I therefore allow this appeal on that issue alone and set aside the Judgment of the lower Court.”
CASES CITED
Not Available
STATUTES REFERRED TO
Adamawa State Board of Internal Revenue Law 2007|Adamawa state High Court Civil Procedure Rules 2013|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Act|District Court Law|Personal Income Tax (Amendment) Act, 2011|
