Bamak Pharmacy & Stores Ltd & Ors. V. Abuja Municipal Area Council (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MARY U. PETER-ODILI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Abuja contained in the judgment of Honourable Justice A.I. Chikere declining jurisdiction to entertain the originating summons of the Appellants/Plaintiffs on the grounds that the Respondent/Defendant, Abuja Municipal Area Council (AMAC) is not an agency of the Federal Government and that the imposition of Business Premises Levy or permit on the Appellants/Plaintiffs by the Respondent/Defendant is not taxation.

Dissatisfied with the judgment of the Lower court, the Appellants/ Plaintiffs filed this Appeal before this Court containing four grounds of appeal.

STATEMENT OF FACTS:

The Appellants/Plaintiffs in this Appeal who are Pharmaceutical Companies duly registered by the Corporate Affairs commission (CAC) were at various times between 01/11/05 and 26/01/06 served Demand Notices by the Respondent/Defendant for the payment of Business Premises Permit under the Abuja Municipal Area Counsel Bye-Law, Vol. 1, Cap. 7. The Respondent/Defendant on several occasions were alleged to have used thugs and members of the Nigerian Police Force to coerce the Appellants/Plaintiffs to pay the levy imposed in the name of the Business Premises Permit. Also alleged is that on several occasions the Superintendent Pharmacists of some of the Appellants/Plaintiffs were unlawfully arrested and detained and in the process, their premises were closed down.

Aggrieved by the imposition of the levy and other acts of intimidation alleged against the Respondent/Defendant, the Appellants as Plaintiffs initiated this action at the Federal High Court, Abuja, after serving pre-action notice on the Respondent/Defendant.

The Claims of the Appellants/Plaintiffs at the trial court and contained on pages 3 and 4 of the records are as follows:-

1. A DECLARATION that the imposition of the tax or levy whatsoever called (Business Premises Permit or Registration Levy or Fees) on the Plaintiffs by the Defendant is illegal.
2. A DECLARATION that the provisions of the Defendants Bye-Law (Abuja Municipal Area Council Bye-Laws, Vol. 1, Cap. 7f 2001) or whatsoever called seeking to license or register the Plaintiff are inconsistent with the Constitution and therefore void or inoperative.
3. A DECLARATION that the Pharmacists Council of Nigeria is the only competent authority to License or Register Pharmaceutical Company in Nigeria.
4. AN ORDER of the Honourable Court compelling the Defendant to refund all taxes/levies collected from the Plaintiffs in respect of the registration.
5. AN ORDER of perpetual injunction restraining the Defendant either by herself or her servants, agents or privies from further collection of any taxes/levies in respect of registration or licence from the Plaintiff and/or from interfering with the smooth operations of pharmaceutical companies in the Area Council.

At the trial, the Defendant entered a conditional appearance and when the case came up for the first time on 8/5/06 at the trial court, the Honourable Justice A. I. Chikere suo motu raised the issue of the jurisdiction of the court to try the Originating Summons and ordered the parties to address the court through written addresses. Consequently, the plaintiffs’ Counsel filed his written address on 25/5/06. The defendant’s counsel filed the defendant’s written address on 14/06/06 and the plaintiffs’ reply address was filed on 23/06/06. The addresses adopted by the parties on 28/6/06 and the case adjourned for ruling and on the 13/7/06 the learned trial Judge delivered her ruling striking out the originating summons on the ground that the Defendant is not an agency of the federal Government and that the imposition of Business Premises Permit/Levy on the Plaintiff by the Defendant is not taxation to bring the action within the jurisdiction of the federal High Court. It is against that Ruling that the Appellants have appealed to this Court on four grounds which are as follows, the particulars excepting:-

GROUNDS OF APPEAL:

1. The trial Court erred in law when it held that the imposition of Business Premises Levy by the Abuja Municipal Area Counsel is not taxation.
2. The trial Court erred in law when it declined jurisdiction to entertain the Plaintiffs/Appellants originating summons.
3. The trial Court erred in law when it relied on the case of Okoyode v. FCDA (2005) 27 WRN 97 decided based on party jurisdiction under Section 251(1)(p) of the 1999 Constitution in deciding the Appellants’ originating summons brought under Section 251(1)(b) of the Constitution based on the subject matter of taxation of companies.
4. The trial court erred in law when it struck out the Appellants’ suit for lack of jurisdiction. RELIEFS SOUGHT FROM THE COURT OF APPEAL:

i) To allow the Appeal and set aside the decision of the trial court declining jurisdiction to entertain the originating summons of the appellants.

ii) AN ORDER remitting the suit to the Lower court for retrial by a different Judge.

iii) ALTERNATIVELY, where the Court ofAppeal holds that the Federal High Court has no jurisdiction in the appellants’ suit, AN ORDER transferring the suit to the Federal Capital Territory High Court.

On 17/2/10 date of hearing the Appellants counsel, Mr. Ediru adopted their Brief filed on 7/11/07 and deemed filed on 21/10/07. He also adopted the Reply Brief of 1/12/09. The Appellant framed three issues for determination which are as foliows:-

1. Whether the Lower court was right when it held that, the imposition of Business Premises Levy on the Appellants/Plaintiffs by the respondent/Defendant is not taxation.
2. Whether the Federal Government or any of its agencies must be a party to a suit founded on taxation of companies and brought under Section 251(1)(b) of the 1999 Constitution for the Federal High Court to assume jurisdiction.
3. Whether an order striking out the Originating Summons of the Appellants/Plaintiffs is the proper order to make after declining jurisdiction to entertain same in view of Section 22 (2) of the Federal High court Act, Cap. F12, Law of the Federation of Nigeria, 2004.

The Respondent’s Brief filed on 19/11/09 was taken as argued on their behalf, Respondent and Counsel being absent inspite of knowledge of the day of hearing having been present when the date was taken. Respondent adopted the three issues as formulated by the Appellants.