Attorney-general Of Cross River State & Anor. V. Matthew Ojua, Esq. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

The Respondent, a legal practitioner and property owner in Ikom, Cross River State of Nigeria was served with assessment notices for the payment of Urban Development Tax, Tenement Rate, Sanitation Levy and Refuse Collection charges in respect of his properties located in Ikom in 2005. He challenged by an Originating Summons the Urban Development Tax Law 2004 upon which the assessment was predicated since he is paying similar taxes to the Local Government and sought for the following reliefs:-

1. A Declaration that by virtue of the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T.2 LAWS OF THE FEDERATION 2004, and the doctrine of covering the field, the Cross River State URBAN DEVELOPMENT TAX LAW 2004 is unconstitutional, illegal, null and void and of no consequence whatsoever.
2. An order setting aside Assessment Notices for the payment of Urban Development Tax, Tenement rate, Refuse Collection Charge and Sanitation Levy on the plaintiff’s properties.

He also sought for the determination of the following questions:

1) Whether the Cross River State Government can impose and collect taxes and levies outside those specified in Part II for collection by State Governments in the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP. T. 2 LAWS OF THE FEDERATION 2004?

2) Whether the Assessment Notices served on the plaintiff are not in conflict with the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T2 LAWS OF THE FEDERATION 2004?

3) Whether the Cross River State Government has power and capacity to legislate, determine and demand taxes and levies outside the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T2 LAWS OF THE FEDERATION 2004?

4) Whether the Cross River State URBAN DEVELOPMENT TAX LAW 2004 is not inconsistent with the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT, CAP T2 LAWS OF THE FEDERATION 2004? And if the answer is in the affirmative, whether it should not be declared null and void?

The matter proceeded to trial on affidavit evidence and addresses of counsel. After taking exhaustive arguments from the parties, the court found in favour of the respondent and declared the Urban Development Tax Law 2004 unconstitutional, null and void for being inconsistent with the Taxes and Levies (Approved List for Collection) Act, Cap. T2 Laws of the Federation 2004 and accordingly set aside the assessment notices served on the respondent. Dissatisfied with the judgment of the High Court, the appellants appealed to the Court of Appeal in a Notice of Appeal dated 16/9/2008 but filed on 31/10/2008 containing five grounds from which the following issues were distilled:-

1. Whether the Urban Development Tax Laws of Cross River State was competently made to validate the taxes levied on the Respondent’s property under it.
2. Whether the provisions of Taxes and Levies (Approved List for Collection) Act, Cap T2 No.21 of 1998 can derogate from the valid exercise of the powers of the Cross River State Government under the Constitution to legislate and impose tax?
3. Whether Cap. T2 was promulgated to create an invariable and exhaustive list of taxes to be assumed as an amendment to the Constitution?
4. Whether the doctrine of “covering the field” applies in the circumstances of this case?
5. Whether the Urban Development Tax Law of Cross River State amounts to creating a law to inflict double taxation?

Before formulating a lone issue for determination the respondent raised preliminary objection to issues 3, 4 and 5 arguing that they do not derive from ground 5. Furthermore that all the issues were distilled from ground 4 which is in breach of the principle that parties cannot formulate more than one issue from a ground of appeal. He urged this court strike out the issues the issues raised by the appellants as well as ground 1, 2, 3, and 5 since no issues were raised from them. He also observed that the Registrar of the lower court transmitted records of appeal to the registry of the Court of Appeal on 14/1/09 well over the sixty days allowed by Order 8 Rule 1 Court of Appeal Rules 2007 and the appellants took no steps to comply with Rules 4 and 5. The lone issue which the Respondent distilled for determination is.

WHETHER THE LOWER COURT WAS RIGHT IN DECLARING THE URBAN DEVELOPMENT TAX LAW CAP U3, LAWS OF CROSS RIVER STATE 2004 UNCONSTITUTIONAL, NULL AND VOID FOR BEING INCONSISTENT WITH THE TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT, CAP T2 LAWS OF THE FEDERATION 2004?

Senior counsel for the Appellants filed a Reply Brief in response the preliminary objection. He maintained that there are no multiplicity of issues from a ground of appeal as Issue 1 derives from ground 4; issue 4 from ground 3 and issue 5 from ground 5. He said issue 2 is derived across grounds 4 and 5 and is a corollary to issue 1. It is therefore clear that issues 1, 2, and 5 were distilled from ground 4 and 5 and so there is a multiplicity of issues from these two grounds of appeal, a practice the court frowns at.

The grounds of appeal shorn of their particulars are:-

1. The learned trial Judge erred in law in assuming jurisdiction over the case when, property construed, the same was no. properly constituted and therefore the court lacked jurisdiction to entertain the case.
2. The learned trial Judge erred in law when he held as follows–

(b) Limiting their conclusion to issues 1 and 2 speaks in lucid clarity of abandonment of issue 3. The kinetic explosion of the abandonment issue 3 is ground breaking To now lie in their concluding mouth for me to dismiss the suit is a miscalculated frolic in the wilds of approbation and reprobation.”

3. The learned trial Judge erred in law when he held as follows:

“This is a very simple, straightforward, non-complex and uncomplicated suit. However parties particularly the defence have given free reins to the script enacted by the three mythical blindmen of Hindostan calling the body of the elephant a wall after touching it. In a maniacal zeal enthusiasm the defence with the greatest respect, has expended much energy in arguing over the mass of an elephant as a wall and not a body” (Emphasis mine).