Airtel Networks LTD V. Attorney-general Of Kwara State & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kwara State, sitting at Ilorin delivered on 23/7/2013 in respect of Suit No: KWS/91/2013 which the appellant as claimant had commenced by way of originating summons filed on 12/3/13 for resolution of 10 questions and consequently for the following declaratory and other reliefs:

1. A Declaration that the Defendants do not have the powers and legislative competence to impose taxes, charges, fines, levies, fees, interests or penalties or howsoever described, for telecommunications installations, services and operations and matters ancillary or related thereto, pursuant to the Kwara State Land Charge Law, 2009 having regard to the provisions of section 4(2) and Items 46, 66 and 68 of the Exclusive Legislative List of the 1999 Constitution.
2. A Declaration that the imposition of and demand for land charges on the claimant’s G.S.M. Mast installations in Kwara State as contained in the Defendants’ various demand notices dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter-alia the sum of N84,348,000.00 made pursuant to the Kwara State Land Charge Law, 2009 are inconsistent with the provisions of section 4(2) and Items 46, 66 and 68 of the 1999 Constitution as they relate to the claimants’ telecommunication business and operations and thereby null and void.
3. A Declaration that the claimant by the nature of her business and operations as a telecommunication company is not liable to pay land charges on her GSM Mast installations in Kwara State to the Defendants as demanded by the Defendants in the notice dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter alia the sum of N84,348,000.00 having regard to the provisions of section 1 and part II of the schedule of the Taxes and Levies (Approved List for Collection) Act Cap T2 2004 Laws of the Federation of Nigeria (LFN).
4. A Declaration that having granted Regional Urban Planning permission and collected assessed fees (levies) from the claimant for the installation of her GSM Masts at various locations in Kwara State; the Defendants are not entitled and justified to demand for other levies/fees/tax under the guise of land charge as contained in the various demand notices dated 31st January, 2013 and the pre-action notice dated 7th February, 2013 claiming inter-alia the sum of N84,348,000.00
5. A Declaration that the imposition on and demand for Land Charge by the Defendants on the claimants with respect to her GSM Mast installations in Kwara State as contained in the various demand notices dated 31st January, 2013 made pursuant to section 1(1) and (2) and 21 of Kwara State Land Charge Law 2009 are at variance, inconsistent and in conflict with the intendment and provisions of the Land Use Act, 1978 and thereby null and void.
6. A Declaration that sections 1, 2, 3, 4, 6, 9, 16, 17, 19 and 21 of the Kwara State Land Charge Law, 2009 are ultra vires, unconstitutional, invalid and void having regard to section 4, Items 46, 66 and 68 of the second Schedule, part 1 of the Exclusive Legislative List of the 1999 Constitution on the first part, Item 7 of the second schedule part II of the Concurrent Legislative List of the 1999 Constitution on the second part, sections 5, 15(a) and 16(b) and intendment of the Land Use Act 1978 on the third part and section 1 and part II of the schedule of Taxes and Levies (Approved List for Collection) Act Cap 12, 2004 Laws of the Federation of Nigeria (LFN) on the fourth part.
7. A Declaration that the Kwara State Land Charge Law, 2009 does not have or can not be said to have retrospective effect on activities of the claimant before the commencement of the law.
8. A Declaration that the Kwara State Land Charge Law, 2009 cannot bind and affect the claimant for the period in which she had not yet owned or held or occupied and erected/installed her GSM Mast on the various pieces of land subject matter of the Defendants demand notices dated 31st January, 2013.
9. A Declaration that the demand for land charge by the Defendants on the claimants as per the demand notices dated 31st January, 2013 claiming inter-alia the uniform sum of N1,188,000.00 on each Mast installations are oppressive, exorbitant, ridiculous, unjustifiable and punitive and thereby invalid.
10. An order nullifying the pre-action notice letter dated 7th February, 2013 and all its accompanying demand notices having not emanated from the prescribed authority.
11. An order of perpetual injunction restraining the Defendants whether by themselves, servants, agents and/or privies or whomsoever from implementing and/or giving effect to the Kwara State Land Charge Law, 2009 Laws of Kwara State against the claimant.

The originating summons was filed with a supporting affidavit of 19 paragraphs to which documents marked as exhibits CA1, CA2, CA3, CA4, CA5 and CA6 were attached while the written address by Solomon Olorukooba Esq., Learned Counsel for the claimant was also filed therewith.

The Respondents as defendants filed their Memorandum of Appearance on 22nd March, 2013 and filed their Counter affidavit of 26 paragraphs on 26th March, 2013 with exhibits MOJ 1 and MOJ 2 and the written Address prepared by A. M. Bello Esq., the learned defence Counsel, and in response thereto, the appellant filed a further Affidavit. After hearing the parties through their respective Counsel, the High Court of Kwara State answered the questions in the originating summons against the claimant (except question number 8) and consequently resolved all the eleven reliefs against the claimant.

Being dissatisfied with the decision of the High court of Kwara State (now called the trial Court), the claimant (now appellant) commenced this appeal through two Notices of appeal filed on 3rd September, 2013 and 14th October, 2013, and in prosecution of the appeal, the Appellants’ Brief settled by Akin Akintoye II, of Counsel was filed on 6/12/13. The appellant has relied on the Notice of Appeal filed on 14th October, 2013 with 12 grounds of appeal and has set the following issues down for determination;

i. Whether certain provisions and indeed the whole of the Kwara State Land Charge Law, 2009 are not in contravention of, inconsistent and in conflict with the 1999 Constitution, the Land Use Act and Taxes and Levies (Approved List for Collection) Act and thereby null and void.

ii. Whether having held that the Land Charge Law does not have retrospective effect, it does not behove on the Court to nullify the imposition of tax on the Appellant by the Respondents for the period when the Law has not come into effect.

iii. Whether it was proper for the Lower Court to ignore the impropriety of levying tax on the Appellant by the Respondents for the period and in respect of sites not yet acquired or Masts not yet erected therein.

iv. Whether Exhibit CA6 is valid and properly issued by the appropriate authority as envisaged by the Land Charge Law.

v. Whether the judgment of the Lower Court is not against the weight of evidence.

In the Respondent Brief of Argument filed on 6/2/2014 but deemed properly filed on 17/3/2014, A. M. Bello Esq., the learned Counsel who settled the Brief identified the issues for determination as:

1. Whether the Lower Court rightly held that, the Land Charge Law of Kwara State is not in breach, nor inconsistence with, or in conflict with the 1999 Constitution, the Land Use Act and Taxes and Levies (Approved List for Collection) Act.
2. Whether the Lower Court was right in not given (sic) a relief that was not sought for by the Appellant when it declared null and void the assessment of parcels of land not owned or occupied by the Appellant at the time of such assessment which are contained in the various demand Notice (sic) of 31st January, 2013 to that extent.
3. Whether the judgment of the Lower Court is against the weight of evidence placed before it.

The Appellant’s Reply Brief of Argument settled by learned Counsel Akin Akintoye II was filed on 18/3/14.

At the hearing of the appeal, the parties were represented by their Counsel who adopted their respective Briefs of Argument. Appellants’ Counsel, Akin KINTOYE II urged that the appeal be allowed, while the Respondent’s Counsel, A. M. Bello, Esq., Assistant Chief State Counsel, Kwara State Ministry of Justice urged that the appeal be dismissed.

The issues formulated by the parties are quite similar not withstanding that they have been couched in different ways. I should however state that I will consider and determine this appeal on the basis of the issues formulated by the appellant which in my view are more direct and encompassing.