Independent Television/radio V. Edo State Board Of Internal Revenue (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice Acha of the High Court of Edo State delivered on 06/12/2012. The facts that led to this appeal are as follows:

The respondent commenced an action before the High Court of Edo State by a motion Ex Parte dated 1/11/2012. This motion was supported by a 3 paragraph affidavit, one Exhibit and written address filed on the said 1/11/2012. The applicant prayed the court for the following:

1. An order to distrain upon the land, premises or place of business in respect of which the Defendant is the owner at Glass House Airport Road and Communication Village, Oluku, Benin City.
2. An order to distrain against any movable goods, chattel, bond or securities or any kind of property belonging to the defendant in satisfaction of the liability established against the defendant as final and conclusive taxes due to the applicant.

On 02/11/2012, the court having heard K. Odabi Esq. for the respondent ordered as follows:

“…Applicant (by or through his officers) is hereby permitted to distrain upon any land, premises or place of business in respect of which the Defendant-Independent Television/Radio is the owner at Glass House, Airport Road, and Communication Village, Oluku, Benin City.

It is further ordered that applicant is authorized and permitted to distrain against any movable goods, chattel, bond or securities or any kind of property belonging to the Defendant-Independent Television/Radio in satisfaction of the tax liability in sum of N12,882,596.43 established against the Defendant-Independent television/Radio as stated in Paragraph 3(i) and (j) of the affidavit in support of the motion as final and conclusive taxes due to the applicant on behalf of Edo State Government.”

The appellant in turn filed a motion on notice dated 9/11/2012 praying the court for an order discharging the order obtained ex parte by the respondent. The trial judge fixed the appellant’s motion for hearing on the 20/11/2012. On 20/11/2012, the respondent in response to the appellant’s application for discharge of the Ex Parte order, filed a counter affidavit which prompted the appellant’s counsel to seek adjournment in order to respond to the counter-affidavit. The trial Judge adjourned the hearing of the application to 6/12/2012.

The Appellant then filed a reply to the Respondent’s counter-affidavit on 23/11/2012. On 30/11/2012, the Respondent filed a further counter-affidavit. In turn, on 4/12/2012, the appellant filed a motion praying the court to set aside the respondent’s further counter-affidavit.

In the early hours of 5/12/12, the respondent through its officers, visited the appellant’s premises and sealed up the place. On the same day, the Appellant filed a motion to unseal its place of business as well as other injunctive reliefs. The motion was taken and argued on 6/12/12. Thereafter, the trial judge gave his ruling on the motion while the two other pending motions were adjourned to 22/01/2013.

In the said ruling delivered on 6/12/2012 the trial court ordered that:

“1. The defendant/applicant pay the sum of N12,882,596.43 as contained in the order of court made on 2/11/2012 into the confers of the Treasury of Edo State Government.

2. Upon the presentation of a receipt of such payment, the claimant, that is Edo State Board of Internal Revenue shall forthwith unseal and open the premises of the Defendant/Applicant.
3. If upon the determination of the defendant’s application filed on 9/11/2012, the issues are resolved in the defendant’s favour, the said sum of N12,882,596.43 or any part thereof shall be refunded or paid over to the defendant within 48 hours of the ruling and receipt of the order by the claimant and/or Edo State Government.

The motion on Notice filed 9th November 2012 and all other applications are adjourned till 22nd January, 2013”

Dissatisfied with the ruling, the Appellant on 12/12/12, filed its notice of appeal before this Court. The appellant’s brief of argument was filed on 21/01/13 while the respondent’s brief was filed on 28/02/13.

The appellant, in the brief settled by Chief (Dr) Alfred O. Eghobamien (SAN), distilled four issues for determination as follows: