Oyo State Board Of Internal Revenue V. University Of Ibadan (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

Whether the matter before the lower court is statute barred by reason of the Public Officers Protection Act is the subject matter of this Appeal. The facts which gave rise to the action before the lower court (the High Court of Oyo State) in summary are as follows:

For some years, 2003 to 2006 to be precise, the University of Ibadan (the respondent in this appeal and the defendant in the lower court) failed to pay over to the Government of Oyo State (the Appellant in this appeal and the plaintiff in the lower court) amounts due it under the Pay As You Earn Scheme and in respect of Development Levy. Over the period under reference, the sum of N1,932,255,271.66 had become due to the Appellant. In 2008 the Appellant filed an Originating Summons dated 9/7/2008 in a bid to recover the amount owed it. The Respondent filed a Notice of Preliminary Objection to the Originating Summons on the grounds inter-alia, that the action was statute barred by reason of the Public Officers Protection Act.

In a ruling delivered on 22/6/2009, the lower court agreed that the action was statute barred by virtue of the Public Officers Protection Act, having not been instituted within the period of 3 months prescribed under the Act.

Aggrieved by that ruling, the Appellant filed a Notice of Appeal on 10/7/2009 wherein it gave three grounds why it felt the learned trial judge was wrong in his ruling. The grounds without the accompanying particulars are as follows:

1. The learned trial judge erred in law when he held that by virtue of Section 2(a) of the Public Officers Protection Act, the suit of the plaintiff is statute barred against the defendant.
2. The learned trial judge erred in law when he held that fraud was not in issue in the case and that fraud was not specifically pleaded by the plaintiff.
3. The learned trial judge misdirected himself when he held that “Mr. Ibironke did not cite the provisions of the law which permits the plaintiff to go back 6 years”.

In the Appellant’s Brief of Argument dated and filed on 2/7/2010, three issues were formulated for determination in this appeal. The issues are –

1. Whether the lower court was right to have, in its ruling of 22nd June 2009, held that by virtue of Section 2(a) of the Public Officers Protection Act, the suit of the plaintiff is statute barred against the defendant.
2. Whether the learned trial judge was right in his ruling of 22nd June 2009 when he held that fraud was not in issue in the case and that fraud was not specifically pleaded by the Appellant.
3. Whether Section 2(a) of the Public Officers Protection Act would apply in the light of the provision of Section 55 of the Personal Income Tax Act.

The Respondent in its Brief of Argument filed on 16/3/11 but deemed as properly filed and served on 9/3/11 adopted ipsissima verba, the issues as formulated by the Appellant. It is apposite to state here that the Appellant filed a Reply Brief on 12/4/11. All the Briefs of Argument were adopted in court on 14/10/2013. Appellant’s case was argued by Bamidele Ibironke, while the case of the Respondent was argued by A.S. Ajayi Esq.

On Issue 1 which is whether the lower court was right to have held that the action was statute barred by virtue of Section 2(a) of the Public Officers Protection Act, Appellant’s Counsel submitted that the issue is distilled from ground 1 of the Notice of Appeal. We were referred to the provisions of Section 2 of the Public Officers Protection Act Cap. P.41, Laws of the Federation of Nigeria. While Learned Counsel agreed that the Section does not allow for an action against a Public Officer, after three months of the act complained of, he submitted that the provision only protects a public officer who acts in absolute good faith and does not apply to acts done in abuse of office and which have no semblance of legal justification. He referred to Central Bank of Nigeria vs. Aite Okojie (2004) 10 NWLR part 882 p.488 at 498; University of Ilorin vs. Adeniran (2007) 6 NWLR part 1031 p.498 at 506; Ibeto Cement Co. Ltd. vs. A. G. of the Federation (2008) 1 NWLR part 1069 p.470 at 480; Fred Egbe vs. Hon. Justice Babatunde Belgore (2004) 8 NWLR part 875 p.336 at 342; Offoboche v. Ogoja L.G. (2001) 16 NWLR Part 739 p.458.

It was submitted that it is the duty of the Respondent to deduct PAYE Tax and Development Levy from staff salaries of the Respondent and to remit same to the Appellant. It was contended that the non-remittance of the tax deductions by the Respondent was not in good faith and is contrary to the requirement of the law. It was urged on us that the Respondent cannot benefit from his wrong doing. The case of Sanni vs. Okene L.G. Traditional Council (2005) 14 NWLR part 944 p.60 at 67 was cited in support. It was urged that a party cannot be allowed to take advantage of the limitation law where there is compelling evidence of fraud. The following cases were cited in support: Anwadike vs. Administrator-

General of Anambra State and Public Justice (1996) 7 NWLR part 460 p.315; Arowolo vs. Ifabiyi (1995) 8 NWLR part 414 p.496 at 498; The Administrators/Executors of the Estate of General Sanni Abacha vs. Samuel David Eke-Spiff (2003) 1 NWLR part 800 p.114 at 127.

Learned Counsel submitted that the Public Officers Protection Act is to protect public officers from the general public and not to protect a public officer from another public officer.

Learned Counsel referred to the provision of Section 55 of the Personal Income Tax Act and submitted that the provision empowers the Oyo State Board of Internal Revenue to revisit a tax matter at anytime where there is willful default on the part of the tax payer. We were urged to resolve the first issue in the Appellant’s favour.

In response to the position taken by the Appellant in respect of Issue 1, the Respondent’s Counsel also referred to the provisions of Section 2(a) of the Public Officers Protection Act and submitted that the provision protects a public officer against an action commenced three months after the accrual of the cause of action. He cited the case of Egbe vs. Belgore (2004) 8 NWLR part 876 p.330 at 341. It was submitted that it is trite that where a law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period. He referred to Gulf Oil Co. (Nig.) Ltd. vs. Oluha (2002) 12 NWLR part 780 p.92 at 98; Abubakar vs. Governor of Gombe State (2002) 17 NWLR part 797. It was contended that the cause of action in this case arose in 2003 while the Appellant instituted the action on 9/7/2008 and consequently, the Appellant’s right to institute the action had become extinguished, the action having been statute barred.

Respondent’s Counsel submitted that the contention of the Appellant’s Counsel that the limitation period stipulated by one statute may be overridden or extended by another thereby saying a suit filed out of time cannot be sustained in this case. He urged that the case of Abia State University vs. Chim Anyaibe (1996) 3 NWLR part 439 p.646 cited by the Appellant’s Counsel has no direct bearing to this case as that case had to do with the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 1979. We were urged to discountenance the arguments of the Appellant.