Attorney-general Osun State V. International Breweries Plc (2000)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The respondent herein (as plaintiff) sued the appellant and one other at High Court of Justice Osogbo, Osun State on 20/10/97 claiming against them jointly and severally for the following reliefs:-

“1. A declaration that sections 3, 4 and 5(e) and (f) of the Osun State Accelerated Revenue Generation, Collection and Accounting Edict, 1997 is as far as the sections purport to establish the Osun State Accelerated Revenue Generation, Collection and Accounting Agency to perform the functions of the State Board of Internal Revenue, are inconsistent with sections 85A and 85B of the Personal Income Tax Decree, 1993 as amended by Finance (Miscellaneous Taxation Provisions) (No.2) Decree NO. 31 of 1996, and thus void.

2. Declaration that the Osun State Accelerated Revenue Generation, Collection and Accounting Agency Edict, 1997 in so far as it purports to take away the vested right of the plaintiff to fair hearing is inconsistent with section 33 of the Constitution of the Federal Republic of Nigeria 1979, and thus void.
3. An injunction to restrain the defendants by themselves or by their servants, agents and/or privies or otherwise however from carrying out or taking any step pursuant to sections 3 and 5(e) and (f) of the Osun State Accelerated Revenue Generation, Collection and Accounting Agency, Edict, 1997.”

The action was commenced by an originating summons supported by a 9 paragraphs affidavit. It was moved and argued. At the conclusion of hearing, the learned trial Judge found for the plaintiff/respondent and granted the 1st and 3rd of the reliefs (as reproduced above). The second relief which was withdrawn was accordingly struck out. Thus, the first declaration sought in the originating summons and the order of injunction were made or granted in favour of the plaintiff/respondent (hereinafter simply called “the respondent”). The 2nd defendants/appellants (also hereinafter simply called “the appellants”) being dissatisfied with the judgment of the trial Court (which was delivered on 19/2/98 appealed against it in this court (as per the notice of appeal dated 26/2/98 – see pages 28 – 31 of the record). It is to be noted that the 1st appellant namely, the Military Administrator, Osun State has since ceased to be a party in this appeal as a result of an application to delete his name as a party in this appeal dated 11/1/2000 which was duly considered and granted by this court on 29/3/2000. Thus, leaving only the 2nd appellant – The Attorney-General, Osun State as the only surviving appellant in the case.

In the original notice of appeal, which has not been amended, the appellant filed 7 grounds of appeal (see pages 28 – 31 of the record). In accordance with the rules of this court, the parties have filed briefs of arguments which they respectively adopted at the hearing of the appeal on 19/10/2000. In the appellant’s brief, the following three (3) issues for determination are formulated:-

“Issue I

Whether the provisions of sections 3, 4 and 5(e) and (f) of the Osun State Accelerated Revenue Generation, Collection and Accounting Edict No. 2 of 1997 are inconsistent with and not subordinate to the provisions of sections 85A and 85B of the Personal Income Tax Decree No. 104 of 1993 as amended by Decree No. 31 of 1996?.

Issue II

Whether by virtue of the combined provisions of Decree 107 of 1993 and Decree 12 of 1994 the learned trial Judge was right to assume jurisdiction on the respondent’s case which bothered (sic) on the challenge of the Osun State Administrator’s powers to promulgate and act upon the provisions of Osun State Revenue Generation, Collection and Accounting Edict No.2 of 1997?.

Issue III

Whether the learned trial Judge was right from the circumstances of this case, to hold that the functions of the Osun State Board of Internal Revenue were incapable of being delegated and if so delegated can only be done (delegated) to the staff of the Internal Revenue services?.”

On its own part, the respondent in its brief of argument framed the following two issues for determination:-

“(1) Whether sections 3, 4 and 5(e) and (f) of Edict No.2 of 1997 are inconsistent with sections 85A and 85B of Decree No.104 of 1993?; and

(2) Whether the learned trial Judge had jurisdiction to declare sections 3, 4 and 5(e) and (f) of the Edict void to the extent of the inconsistency?.”

Thus, issue I and II of the appellant have been adopted by the respondent who has thereby left or abandoned the appellant’s third issue. However, for the purpose of this judgment the three issues as framed in the appellant’s brief and which are well related to the grounds of appeal (see paragraph 4.0 thereof) will be considered and adopted in determining the appeal.

Under the first issue (Issue I) the main thrust of the appellant’s arguments or submissions based on the review or re-reading of the provisions of sections 35(e) and (1) of Edict No. 2 of 1997 of Osun State vis-a-vis those in sections 85A to 85B of Decree No. 31 of 1996. The Edict No.2 of 1997 (supra) is entitled as “Osun State Accelerated Revenue Generation Collection and Accounting Edict, No.2 1997”. The Decree in question is titled as “Finance (Miscellaneous Taxation Provisions) (No.2) Decree No. 31 of 1996”. The relevant provisions of both the Edict and the Decree are reproduced in the appellant’s brief as Appendixes I and II respectively. The main substance of the argument under the issue is that, there is no conflict or inconsistency between the provisions in the Edict and those in the Decree. This is said to be contrary to the finding or holding of the learned trial Judge at page 29 (lines 30-34) of the record whereby he interpreted the provisions of section 5(e) and (1) to have the effect of making the agency to take over and performing the functions of the State Board of Internal Revenue which is provided for under sections 85A and 85B of the Decree. Reference is also made in the brief to page 26 (lines 12-16) of the record where the learned Judge made a similar finding and concluded that by substituting the agency with the board of Internal Revenue as a body charged with the collection, generating and accounting for taxes and revenues, the Osun State Government had thereby amended the provisions of Decree No. 104 of 1993. It is provided in the said Decree No.104 (supra) in section 1 thereof that, while the Federal (Military) Government has power to make laws for peace, order and good government of Nigeria or any party thereof with respect to any matter whatsoever, the (Military) Governor of a state who has no power to legislate on a matter in the exclusive legislative list of the Constitution of (1979) can only lawfully legislate with respect to matters in the concurrent list of the said Constitution with the prior consent of the Federal (Military) Government. It is argued in the appellant’s brief that, this view of the learned trial Judge on the relationship between the Federal and State Military Government in their powers to make Decree or Edicts and in the relationship between the Board of Internal Revenue established by Decree and the agency created or established in the Edicts (supra) is very erroneous. A meticulous effort is made in the brief to provide a liberal approach to the interpretation of the relevant provisions of the Decree and the Edict and to show that the principle of legislative interpretation under a federal constitution which recognises the doctrine of covering the field in the relationship between the federal and unit (or regional) legislative powers in the concurrent field has no application in the present case. Reference is made in the brief in support of this submission to Ishola v. Ajiboye (1994) 7-8 SCNJ 1.

In another arm or leg of the submissions under Issue 1, it is pointed out that various other states have also enacted laws similar to Edict No.2, 1997 of Osun State to supplement the provision of Decree No. 104 of l993 (as amended) which also operate in the said states. Examples are given with Cross -Rivers, Lagos and Oyo States which had similar legislations- see Finance Law of Cross-River State (Cap. 45); Personal Income Tax Law of Lagos State and Oyo State Internal Revenue Board Edict, 1996 (as enumerated in the brief at p. 7 thereof); and Cooperative & Commerce Bank Plc. v. A.G., Anambra (1992) 10 SCNJ 137 cited in the brief. The cardinal rule of statutory interpretation or construction with a view to avoiding absurdity is called in aid in the brief and the cases of Udoh v. Orthopaedic Hospitals  (1993) 7 SCNJ 436; Minister v. Akpagu (1964.) 1 All NLR 208; and Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 are cited in the brief in support of the principle. Finally, it is pointed out that there is nothing in sections 3-5(e) and (f) of Edict No. 2 of 1997 of Osun State which suggests that agency has usurped or taken over the functions of the State’s Board of Internal Revenue as prescribed in sections 85A and 85B of Decree No, 104 of 1993. Nor can the provisions of the Edict be construed as inconsistent with those of the Decree. We are finally urged in the appellant’s brief to hold that, there is no such inconsistency between the Edict and the Decree in the present case contrary to what the trial court hold and to allow the appeal under the 1st issue (Issue 1) and its relevant ground of appeal.

Reply to the above submissions are contained or covered under Issue No.1 of the respondent’s brief. Under the said issue, the respondent’s contention is hinged on the fact that the Personal Income Tax Decree No.104 of 1993 as amended by Decree No. 31 of 1996 created a Board of Internal Revenue for every state of the federation and made it responsible for Internal Revenue Services in the said states. The functions of the said boards are enumerated in section 85B(1) of the said Decree (supra). Consequently, it is argued in the respondent’s brief that sections 85A and 85B of Decree No. 104 of 1993 have covered the field as regards the establishment of the State Board(s) of Internal Revenue and the functions exclusively assigned to the said Board(s) under the Decree. Thus, the said decree does not contemplate of any legislation or enactment by the states to give effect to the provisions of sections 85A and 85B of the Decree as represented by the appellant (in its brief). Consequently, the provisions of sections 3-5(e) and (f) of Edict No. 2 of 1997 (supra) of Osun State are clearly in conflict with sections 85A and 85B of Decree No. 104 of 1993. The appellant’s argument to the contrary is therefore said in the respondent’s brief to be misconceived for the above reason. It is contended that the learned trial Judge has dispassionately and meticulously considered the relevant provisions of the Edict and the Decree before reaching his conclusion as contained at page 24 (lines 14-23) of the record which is the subject of the appellant’s attack or quarrel (see also page 25 lines 3-10 of the record). The cases of Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 296 at 321; Ifezue v. Mbadugha & Ors. (1984) 1 SCNLR 427 at 447; and Udoh v. O.H.M.B. (1993) 7 NWLR (pt.304) 139 at 147 are cited in the brief in support of the principles for statutory and constitutional interpretation where the Supreme Court reiterated the need to identify the intention of the legislature and to give effect to clear and unambiguous words used in the said statutes or legislations. It is argued on the respondent’s brief that the learned trial Judge adopted the correct approach and did the right thing by giving the provisions of sections 3-5(e) and (f) their clear, plain and unambiguous and ordinary meanings. We are urged to give similar interpretation to the relevant provision in Edict No. 2 of 1997 (particularly section 5(f). It is also argued by the respondent that, the cases cited and relied upon by the appellant (in their brief) are not apposite or relevant to the present case. We are also urged to hold that the provisions of sections 3 and 5(e) and (f) of the Edict are inconsistent with sections 85A and 85B of the Decree (supra) in that the two provisions cannot co-exist or be applied together- see Governor Ondo State v. Adewumi (1988) 3 NWLR (Pt.80) 280 at 293 (where the doctrine of covering the field under a federal system was expounded by the Supreme Court); and A.G. Ogun State v. A.G., Federation (1982) 3 NCLR 166 cited in support of the submission. We are finally urged to dismiss the appeal under the issue as argued above.

I have given due consideration to the above submissions in the two briefs under the 1st issue. In my humble view, it is clear from the arguments of both parties that the crux of the matter lies on whether or not the relevant provisions of Edict No.2 of 1997 of Osun State are in conflict or are inconsistent with those (similar ones) in Decree No. 104 of 1993. It is to be noted that before the enactment of Edict No.2 of Osun State, the Federal Military Government had in its decree which was entitled as Personal Income Tax Decree No. 104 of 1993 made provisions for the collection and general services relating to taxes & revenue in all the States of the Federation. It also established in the said States Boards of Internal Revenue charged with the specific functions relating to the collection and general services relating to the said taxes and revenues in the said States. On its own part, the Osun State Edict No.2 of 1997 – entitled Accelerated Revenue Generation, Collecting and Accounting Edict also made provision relating to the collection and general services relating to taxes and revenues in the State (at an accelerated rate as the name suggests) and established an “agency” charged with such functions instead of a board. Of particular relevance is the provisions of section 5(e) and (f) of the Edict which specifically provide as follows:

“5. The functions of the agency shall be as follows:-

…….

…….

(e) to perform the duties and functions of the States Board of Internal Revenue in assessing, charging, collection and enforcement of all taxes, levies, rates due to the State Government.

(f) to enforce on behalf of the State Government the collection and recovery of all taxes, fees, levies, rates due to the State Government under the Personal Income Tax Decree No. 104 of 1993 or any subsequent Decree in respect thereof and the various laws and Edicts of the State and other enabling Statutes by way of distraining the goods or land of any tax defaulter or by commencing action in the appropriate designated law court or tribunal.”

It is clear from the above provisions that the Osun State Government/or Military Administrator’s object or aim at enacting the Edict in question considered that the provision of the Decree (supra) and the Board of Internal Revenue created under it were inadequate in the effective collection of taxes and revenue etc. and in dealing with tax defaulters. Thus, the need for the creation of the agency to take over and perform the functions of the Board which will then be rendered idle and redundant and in the end possibly be scrapped. The crucial question raised at the trial Court from the originating summons before it, is whether the Military Administrator (or Governor) can validly or lawfully legislate (by an Edict) to repeal (or amend) a Decree made by the Federal Military Government?. A similar question may also be raised under a constitutional or civilian regime or dispensation as to whether the state government or legislature can validly legislate on a matter (in the concurrent list) on which the Federal Government or legislature has already passed or made a law. This poser in my view raises a constitutional question or a substantial question of law on which the High Court would ordinarily be required to refer to a higher court (i.e this court) in terms with section 259(2) of the Constitution of the Federal Republic of Nigeria 1979 which corresponds with section 295(2) of the 1999 Constitution at the request of either of the parties – See also African Newspapers of Nigeria v. F.R.N. (1985) 2 NWLR (pt.6) 137; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 and Gamioba v. Esezi (1961) 2 SCNLR 237. However, in the present case there was no such request by either of the parties and the trial Judge did not consider the constitutional question so raised at the preliminary stage of the proceeding as crucial (i.e. a substantial question of law) in which the reference was necessary and he proceeded to deal with the case. Be that as it may, I will in spite of the non-reference still consider the constitutional point so raised and which was determined by the trial Court. I may revisit the point when dealing with issue II which is on the jurisdiction of the trial Court to entertain the plaintiff/respondent’s case before it.

On whether or not the provisions of Edict No.2 of 1997 of Osun State is in conflict or inconsistent with those in Decree No.104 of 1993 (particularly sections 85A and 85B thereof), this point can easily be resolved by comparing the relevant provisions of the said Edict with those in the Decree. I agree with the submissions of both parties regarding the fundamental principle of interpretation of statutes that where the words in the provisions are clear, plain and unambiguous, effect must be given to them in terms with their ordinary meaning – see Udoh v. O.H.M.B. (supra), Ojokolobo v. Alamu (supra); and Kuusu v. Udom (1990) 1 NWLR (Pt.127) 421 at 441. Moreover, I agree with the other view particularly of the respondent that the main object or aim of statutory interpretations is to discover the true intention of the lawmakers (i.e. the legislature) which is deducible from the language used. See IBWA v. Imano (Nig.) Ltd. (1988) 3 NWLR (pt. 85) 633 at 651; Nafiu Rabiu v. Kano State (1980) 8-11 SC 130 at 149-150; and Mobil Oil (Nig.) Plc. v. 1 AL 36 INC (2000) 6 NWLR (Pt.659) 146 at 168. In the present case, I am of the firm view that by the clear, plain and unambiguous provisions of both the Edict and or vis-a-vis the Decree as reproduced above, there is no doubt that the intention of the lawmakers of the Edict (supra) i.e. the Military Governor of Osun State was, as I have stated above, to change the existing law relating to taxation and revenue matter (i.e. Decree No. 104 of 1993) and to scrap the Board of Internal Revenue established under it and to transfer its functions on the new agency created under the Edict. I therefore fully agree with and accept the respondent’s submission to that effect and I accordingly hereby hold so. Consequently, it follows that the Edict (supra) which sought to amend or repeal the Decree (supra) was in sharp conflict and was utterly inconsistent with the latter. There can be no further inconsistency than the provision of section 5(e) and (f) which provides not only for the taking over of the duties of the board by the agency but assigns to the said agency all the responsibilities in tax and revenue collection under Decree No.104 of 1993 which is specifically cited in the subsection or paragraph of the Edict (supra). It is trite that a Decree is the highest amongst organic laws under the military regime and where the provisions of any Edict are inconsistent with a decree, they are regarded as void to the extent of the inconsistency – See Ademolekun v. University of Ibadan (1978) NMLR 253; Adejumo v. Mobolaji Johnson, Military Governor of Lagos State (1972) 3 SC 45 at 55; Onyiake v. Esiala (1974) 1 All NLR 11 at 151 and 158; Bronik Motors Ltd. v. Wema Bank Ltd. (1982) 2 SC 158 at 221 and 235 and Peanok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1 at 137. The provisions of the decree are next followed not by an edict but by the unsuspended provisions of the Constitution. An Edict then comes as third in terms of importance or priority under the Grund Norm in Nigeria in a military era as was held in Military Governor Ondo State v. Adewumi (supra cited in both briefs).

Thus, the legislative powers of the Federal Military Government and those of the States Military Governments were spelt out under a decree entitled “The Constitution (Suspension and Modification) Decree” – See for example Decree No. 1 of 1984 and No. 107 of 1993. Under Decree No. 107 of 1993 (supra) (s.2(2)(b) thereof) a Military Governor of a particular State can only legislate on a matter or subject already legislated upon by the Federal Military Government (via a Decree) with the consent of the said Federal Military Government and not otherwise – see Adewumi’ s case (supra at page 292 of the report). I therefore agree with the respondent’s submission that, the doctrine of “covering the field” under Nigerian Federalism as expounded in that case applies also to the present case and since the Federal Military Government has already passed or made Decree No. 104 of 1993 on the subject of taxation and revenue (which is on the concurrent list under the 1979 Constitution) the Osun State Government cannot validly enact an Edict on the same subject which is inconsistent with the said Decree as happened in the present case-See also A.G. Ogun State v. A.G. Federation (1982) 3 NCLR 166; A.G. Ogun State v. Alhaja Aberuagba (1985) 1 NWLR (Pt.3) 395 and Nwangwu v. Ukachukwu (2000) 6 NWLR (Pt.662) 674 at 691-692. In the latter case, this court (Enugu Division) held that since the Land Use Decree or (Act) has excluded the High Court from exercising jurisdiction in land matters the subject of customary right of occupancy, it was wrong or ultra vires for the state government to confer such jurisdiction on the High Court under the Anambra State High Court Edict No.16 of 1987 (section 13 thereof) because the Federal Government had already legislated on the matter under sections 39 and 41 of the Land Use Act (Cap. 202), Laws of the Federation 1990. I am of the view that this case is a relevant authority in resolving the issue under review, and since it states the correct position of the law, I do not find any reason to depart from it. I will therefore apply it in determining the dispute in the present case under Issue 1. Consequently, and in view of my above consideration of the issue (Issue 1) it has to be resolved against the appellant and in favour of the respondent.

Under issue II in the main and alternative submissions, the appellant’s arguments or submissions are directed against the lack of jurisdiction of the trial court to entertain the respondent’s action before it. It is pointed out that the action before the said court was a challenge on the powers of the Osun State Military Administrator to make Edict No.2 of 1997 (supra) and the validity of the said Edict. Reliance is placed by the appellant (in his brief) on the provision of section 5 of Decree No. 107 of 1993 (supra) which expressly excludes the courts of law in Nigeria in exercising jurisdiction on such matters. Similar provision is also made in section 1(2)(b)(i) Decree No. 12 of 1994. It is submitted in the appellant’s brief that the trial Court lacked jurisdiction in the matter (i.e. to entertain the respondent’s case) by virtue of the above provisions in the two Decree – see A.G. Federation v. Sode (1990) 1 NWLR (Pt.128) 500 and Ariyo v. Ogele (1968) 1 All NLR 1. The submissions of the appellant under Issue 1 to the effect that the provisions of the Edict (supra) are not inconsistent with those of the Decree No. 104 of 1993 are repeated under Issue II and it is pointed out that lower court’s jurisdiction has thereby been effectively ousted under the above provisions – See Military Governor Ondo State v. Adewumi (supra) cited in support of the argument). It is further asserted in the appellant’s brief that the subject of “collection of taxes” comes under item D of the concurrent legislative list in part II of the 1979 Constitution a subject on which both the Federal and State Governments or legislatures have concurrent powers to legislate side by side. Thus, Edict No.2 of 1997 (supra) was passed validly under that provision of the Constitution – See also section 2(2) (b) of Decree No. 107 of 1993 (supra) cited in the brief in support of the contention. Since under the provision the Osun State Military Administrator can legislate on a concurrent subject with the consent of the Federal Military Government, it is argued in the brief, the absence of such consent has to be proved by anybody who asserts it before the court can exercise jurisdiction in the matter. Otherwise the trial Court should have presumed that there was such consent and the Edict was validly made. I am however of the view that this argument is or will be more relevant under Issue 1 which deals with the validity of the Edict in question and it is not relevant to the issue of jurisdiction. The argument is therefore in my view, misconceived at this stage and under issue dealing with the jurisdiction of the trial Court. Moreover, the attempt to distinguish the decisions of the Supreme Court in Adewumi’s case (supra) and Ishola v. Ajiboye (supra) and the request for us to declare those decisions of the Supreme Court as per incuriam (as contained at page 12 of the appellant’s brief) are misconceived as it is trite that (this court as) an inferior court (to the Supreme Court) is not competent to make such a declaration. That is the privilege of a higher court when considering the decision of an inferior court. Thus in the present case, it is only the Supreme Court that has the right or competence to make such a declaration and to depart from its previous decisions if found to be wrong or per incuriam – see Tsamiya v. Bauchi Native Authority (1957) NRNLR 73 at 83 (per Jibowu, FCJ); Yusuf v. Dada (1990) 4 NWLR (Pt.146) 657; and Atolagbe v. Awuri (1997) 9 NWLR (Pt.522) 536.

Reply to the above submissions is contained in Issue No. 2 of the respondent’s brief. It is argued by the respondent that the learned trial Judge gave adequate considerations to sections 2 and 5 of Decree No.107 of 1993 and the case of Military Governor of Ondo State v. Adewumi (supra) before reaching his conclusion that the provisions of the Edict No.2 of 1997 were inconsistent with those in Decree No. 104 of 1993 and consequently held rightly that the trial Court had jurisdiction to entertain the respondent’s claims. Reference is specifically made to page 292 of the report in Adewumi’s case (supra) where the Supreme Court decided that an action can be brought to challenge an Edict on the ground that it is inconsistent with the provision of the Decree. The case of A.G. Federation v. Sode (supra) relied upon by the appellant is said in the respondent’s brief to be inapplicable to the circumstance of the present case because in the present case, there was an inconsistency between the Edict and the Decree – see also Onyinke v. Eastern States Interim etc (supra) where the Supreme Court made similar holding as in Adewumi’s case. The additional authority under the principle of delegation of power between the board and the agency which is Amokeodo v. IGP (1999) 6 NWLR (Pt.607), 481 at 485-486 and which was submitted at the hearing of the appeal has been noted. On the appellant’s complain against the comments made by the learned trial Judge before reaching his conclusion that the Edict was inconsistent with the Decree, the respondent submits (in his brief) that such comments were not the basis of the decision of the learned trial Judge and they did not occasion a miscarriage of justice – see Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 350 cited in support of the point. We are finally urged in the brief not to disturb or interfere with the conclusion or decision of the learned trial Judge in the case.

In dealing with Issue II and the above submissions under it, it is pertinent to observe that as the issue is bordered on the jurisdiction of the trial court to entertain the claim of the respondent before it, it has become a fundamental issue which deserves priority of treatment over other issues. The issue of jurisdiction has been held by the court to be so fundamental and a condition precedent to the adjudication of a case by the court and its absence would render such adjudication (i.e. the whole proceedings) a nullity no matter how well conducted they might have been. Consequently, issue No.2 which is bordered on the trial Court’s jurisdiction should have been considered and determined in priority or preference in the present case before all other issues – see Madukolu v. Nkemdilim (1962) 1 All NLR 587 and A.G. Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552.

On the merits of the issue raised in the submissions of Counsel under Issue II, I am of the view that there is no merit in the appellant’s submission. Although it was held by the Supreme Court in A.G. (Federation) v. Sode (supra) that where jurisdiction is ousted under a Decree such an ouster should be given effect by the courts, the situation and circumstances in the present case are quite different. In the present case, I have already determined under issue 1 that the relevant provisions of the Edict are inconsistent with those of the Decree and as was held by the Supreme Court in Onyiuke v. E.S.A.L.A. (supra) and Mil. Gov. Ondo State v. Adewumi (supra) the action was maintainable and the trial Court has jurisdiction in the matter notwithstanding the ouster clause in both the Edict (supra) and Decree No. 107 of 1993 (supra). Our courts (particularly the superior courts of record) are very sensitive and jealous in their treatment of the issue of jurisdiction because of its importance or fundamental nature to adjudication and they guard against any attempt to rob them of their jurisdiction to adjudicate in disputes which is their traditional role under the constitution – sections 6 and 236 of the 1979 Constitution and sections 6 and 272 of the 1999 Constitution – see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 SC 158; American International Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC 81; and Okulate v. Awosanya (2000) 1 WRN 65 at 77-78. The provision of section 2(2) (b) (1) of Decree No.107 of 1993 upon which the appellant heavily relies and which is said to give a concurrent legislative power to the Osun State Military Administrator to enact the controversial Edict (No. 2 of 1997) has no relevance under issue No. 2 (under review) which is bordered on jurisdiction of the trial court to hear and determine the respondent’s action before it. In the result of my consideration of issue II of the appellant’s brief which is bordered on jurisdiction of the trial Court to adjudicate on or determine the respondent’s action before, the said issue must also be resolved against the appellant and in favour of the respondent and it is hereby so resolved by me.

Under issue III, the appellant is quarreling with the remark or holding of the learned trial Judge to the effect that the functions of the Osun State Board of Internal Revenue are incapable of being delegated and even if it (sic) can be so delegated such can only be done to the Osun State Service – See page 25 (lines 1330) of the records of proceedings. It is argued by the appellant that a finding or remark by the learned trial Judge is perverse as it is not relevant to the respondent’s case at the lower court which was on the inconsistency between the Edict and the Decree. More reasons for the alleged perversity of the remark are given in the appellant’s brief and we are finally urged to resolve issue III in favour of the appellant. The respondent’s brief does not proffer any reply to the above submissions under appellant’s issue III. However, it is to be noted that, there is reference to this issue of delegation of functions of the board at page 6 paragraphs 5.1 and 5.2 of the respondent’s brief. The additional authority No. 2 cited by the respondent namely Amokeodo v. I.G.P. (supra) is also said to be apposite to the point. I must state that I am inclined to agree with the view of the respondent on the issue even though it is not well canvassed in the sense that, it should have been made under a separate issue III instead of under issue II. In any case, I endorse the settled position of the law as stated by the respondent that even if it is conceded that the remarks and conclusions of the learned trial Judge on the issue of delegation of functions were wrong or erroneous, they were not the basis of the decision of the learned trial Judge nor did they occasion a miscarriage of justice. It is trite law that it is not every mistake or error on the part of the trial Court in its judgment that will justify the reversal of or setting aside the said judgment unless such a mistake has led to or occasioned a miscarriage of justice in the sense that if the error had not occurred the decision or judgment of the said court would have been different or otherwise – See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127; Bankole v. Polu (1991) 8 NWLR (Pt.211)523; Okolo v. MidWest Newspaper Corp. (1977) 1 SC.33; Mora v. Nwalusi (1962) 2 SCNLR 73; and Atoyebi v. Governor Oyo State (1994) 5 NWLR (Pt.344) 290. It is very clear that in the present case, the decision or judgment of the trial Court was not based on the point of delegation of functions between the board and the agency as remarked upon by the learned trial Judge. Consequently, there was no miscarriage of justice occasioned by the said remarks even if they are regarded as erroneous. In the circumstances, I will also resolve Issue III of the appellant against him and in favour of the respondent.

Finally, in view of my resolution of all the issues in the appeal against the appellant, his appeal has failed and it is hereby dismissed. I assess the costs of the appeal at N5,000.00 which I hereby award in favour of the respondent and against the appellant.

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Other Citations: (2000)LCN/0913(CA)