GTB v. EKITI STATE BOARD OF INTERNALREVENUE

CITATION: (2018) LPELR-46307(CA)

In the Court of AppealIn the Ado-Ekiti Judicial Division

Holden at Ado-Ekiti

ON MONDAY, 26TH NOVEMBER, 2018Suit No: CA/EK/25/2017

Before Their Lordships:

AHMAD OLAREWAJU BELGORE Justice, Court of AppealFATIMA OMORO AKINBAMI Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal

BetweenGUARANTY TRUST BANK PLC - Appellant(s)

AndEKITI STATE BOARD OF INTERNAL REVENUE - Respondent(s)

RATIO DECIDENDI1. APPEAL - GROUND(S) OF APPEAL: Effect of a ground of appeal from which no issue for determination is formulated

<span style="font-size: 12px;">"Before proceeding herein, it is important to note and as submitted by the learned Respondent's Counsel that, it would appear that theAppellant abandoned Ground 4 of its Grounds of Appeal. Ground 4 as contained on page 34 of the Record states thus: "The learned Chief Judge erred in law when he exercisedjurisdiction to grant the final Ex-parte Orders sought by the Respondent in the Motion Ex-Parte dated the 18th day of April, 2016, when jurisdiction is exclusively vested in theFederal High Court." It is trite that where no issue for determination is formulated from a particular ground as in respect of Ground 4 (above stated) that Ground of appeal isdeemed abandoned and should be struck out. See the cases of A.N.P.P. V. INEC 2004 7 NWLR PT. 871 16, BHOJSONS PLC. V. DANIEL-KALIO 2006 5 NWLR PT. 973 330, BAYEROV. MAINASARA &amp; SONS LTD. 2006 8 NWLR PT. 982 391. In consequence therefore, Ground 4 of the Appellant's Grounds of appeal is hereby struck out having beenabandoned."</span>Per WILLIAMS-DAWODU, J.C.A. (Pp. 19-20, Paras. D-C) - read in context

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2. TAXATION - ASSESSMENT OF TAX: Whether a taxable person is liable to a distraining order in the absence of a prior tax assessment by the tax authority<span style="font-size: 12px;">"The provisions of Sections 55 and 104 of the PITA, for ease of reference and better appreciation of same are hereunder stated thus: Additionalassessment 55. (1) If the relevant tax authority discovers or is of opinion at any time that a taxable person liable to income tax has not been assessed or has been assessed ata less amount than that which ought to have been charged. The relevant tax authority may, within the year of assessment or within six years after the expiration thereof andas often as may be necessary, assess the taxable person at such amount or additional amount as ought to have been charged, and the provisions of this Act as to notice ofassessment, appeal and other proceedings shall apply to that assessment or additional assessment and to the tax thereunder. (2) For the purpose of computing underSubsection (1) of this section the amount or the additional amount which ought to have been charged. All relevant facts consistent with paragraph (b) of the proviso to Section66 (2) of this Act shall be taken into account whether or not known when a previous assessment or an additional assessment on the same taxable person for the same yearwas being made or could have been made: Provided that where any form of fraud, willful default or neglect has been committed by or on behalf of a taxable person inconnection with any tax imposed under this Act, the relevant tax authority may at any time and as often as may be necessary assess that taxable person at such amount oradditional amount as may be necessary for the purpose of making good any loss of tax attributable to the fraud, willful default or neglect. Power to distrain for non-payment oftax (As amended by the Personal Income Tax (Amendment) Act 2011) Tax (Amendment) Act 2011) 104. (1) Without prejudice to any other power conferred on the relevant taxauthority for the enforcement of payment of tax due from a taxable person that has been properly served with an assessment which has become final and conclusive and ademand notice has been served upon the person in accordance with the provisions of this Part of this Act, or has been served upon the person, then, if payment of tax is notmade within the time specified by the demand notice, the relevant tax authority may, in the prescribed form, for the purpose of enforcing payment of tax due - (a) distrain thetaxpayer by his goods, other chattels, bond or other securities; or (b) distrain upon any land, premises or places in respect of which the taxpayer is the owner and, subject tothe provisions of this section, recover the amount of tax due by sale of anything so distrained. (2) The authority to distrain under this section shall be in the form prescribed bythe relevant tax authority. (3) For the purpose of levying any distress under this section, an officer duly authorized by the relevant tax authority shall apply to a Judge of a HighCourt sitting in Chambers, under oath for the issue of a warrant under this section. (4) The Judge may, on application made ex-parte, authorize such officer, referred to in Sub-section (3) of this section, in writing to execute any warrant of distress and, if necessary, break open any building or place in the daytime for the purpose of levying suchdistress and he may call to his assistance any police officer and it shall be the duty of any police officer when so required to aid and assist in the execution of any warrant ofdistress and in levying the distress. (5) The distress taken pursuant to this section may, at the cost of the owner, be kept for 14 days, at the end of which time, if the, amountdue in respect of tax and the cost and charges incidental to the distress are not paid, the same way be sold. (6) There shall be paid out of the proceeds of sale, in the firstinstance, the cost or charges incidental to the sale and keeping of the distress and the residue, if any, after the recovery of the tax liability, shall be payable to the owner ofthe things distrained or to the appropriate Court where the owner cannot be traced, within 30 days of such sale. (7) In exercise of the powers of distress conferred by thissection, the person to whom the authority is granted under sub-section (3) of this section may distrain upon all goods, chattels and effects belonging to the debtor whereverthe same may be found in Nigeria. (8) Nothing in this section shall be construed as authorizing the sale of any immoveable property without an order of a Court of competentjurisdiction. From the foregoing provisions of Sections 55 and 104 of the PITA, two things in my considered view and humbly stand out and need be noted as follows: Section55 provides for a situation where the tax authority discovers that, a taxable person has not been assessed or was under assessed, the tax authority is therefore empowered tohave and use all facts necessary for the computation of the outstanding tax for its assessment of the taxable person. It shall within the year of assessment or within six (6)years after the expiration thereof and as often as may be necessary, assess the taxable person at such amount or additional amount as ought to have been charged. Asregards Section 104; It is a situation where there has been assessment and the taxable person has refused and failed to respond or pay after he/it has been properly servedwith an assessment which has become final and conclusive and a demand notice has also been served specifying the time limit for payment. Where, there is a failure to pay,the tax authority may for the purpose of enforcing payment of the tax due, distrain the taxpayer by his goods, other chattels, bond or other securities, or distrain upon anyland, premises or places in respect of which the taxpayer is the owner and recover the amount of tax due by sale of anything so distrained. The Respondent applied under theabove stated two Sections and for the reliefs already reproduced at the Court below. In my humble view, it would seem that, there was a mix up and lumping together of thesteps and rights of action open to the Respondent against an alleged defaulting taxable person/the Appellant, at the time it went to Court, given the provisions of the abovestated relevant Sections of the PITA. Herein, these facts would appear not in dispute between the parties: a. That the Respondent is a statutory body with the responsibilityamongst others to collect taxes from all persons chargeable with tax in Ekiti State, enforce payment of taxes, investigate all cases of tax fraud or evasion with a view todetermining compliance with the provision of the relevant laws, adopt measures for compliance, enforcement and regulatory actions etc. b. Appellant is a licensed bank inNigeria and in a position to collect withholding tax on its customers' interest and transmit same to the Respondent. The story of the Respondent is that, the Appellant has notbeen remitting all the withholding tax collected from its customers on its behalf and that, it needs the records and documents on the withholding tax since May 29, 1999 todate, in the custody of the Appellant, to enable it properly and correctly assess the amount of tax outstanding and that, the Appellant has a duty therefore, to remit the sumthat will be assessed as outstanding. On pages 5-6 of the Record, it stated the particulars of the records and documents needed from the Appellant. By Exhibit MOJ1, January22nd 2015, it notified the Appellant of proposed tax audit and investigation on withholding tax from May 29th 1999 and requested to be given the documents for the purposeof the necessary assessment. See pages 9-10 of the Record. A final reminder in that regard was sent to the Appellant, Exhibit MOJ2, on August 18th 2015. See pages 11-12 ofthe Record. Upon the non-response and inaction of the Appellant, the Respondent as already stated, proceeded to the Court with the Ex-parte application upon which theCourt ruled and the instant appeal, the resultant effect. From the provision of the PITA, Section 55, the proper step to be taken by the Respondent upon the Appellant's non-remittance of the documents requested for the purpose of a final and conclusive assessment and issuance of a final demand notice, in my considered view and humbly, oughtto be the invocation of the provision of Section 55 (1). In other words, to follow the steps laid down therein, which is, to assess the amount to be paid and notify the Appellantof same. Section 55 (2) states that, for computation, assessment of the outstanding tax to be paid, the tax authority is entitled to use all relevant facts. From the Record, theRespondent was not in possession of the necessary documents which gave rise to its letter of demand and final reminder, Exhibits MOJ1 and MOJ2 respectively. As contained inthe Record, there was still no response in spite of the said Exhibits MOJ1and MOJ2. That being the position, the next proper step from the combined reading of Sections 55 and104 (1) to be taken by the tax authority ought to have been an application to compel the surrender of the relevant facts, records and documents as it could not assess withoutthe relevant facts and documents. This position is because, it is only when an assessment has been made, which is conclusive and final, demand notice thereof, communicatedto the taxable person, with time limit within which payment should be made and there is a default or non-compliance that, there can be invocation of the provision of Section104 (2) - (7) particularly Subsection (4), which provides for the use of an Ex-parte application and the order to distrain or warrant of distress. An Ex-parte application accordingto Section 104 (4), in my view with respect, can properly be filed and entertained by the Court, for failure to pay tax assessed, after the steps provided in Section 55 have beentaken as afore stated. It is pertinent to note that, provision is made in Section 58 PITA where there is any objection to an assessment in Section 55 (1) and it is after theseSections have been complied with that an Ex parte application for issue of warrant for distress in Section 104 can be pursued. One has carefully given the literal and ordinarymeaning to Sections 55 and 104 of the PITA. As stated and reiterated by the apex Court: "The general rule of interpretation of statutes has also been laid by this Court inseveral decisions and the rule is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. This is the Literal Ruleof interpretation of Statutes..." See the cases of ABEGUNDE V. THE ONDO STATE HOUSE OF ASSEMBLY 2015 LPELR-SC 643/2014 and OGBUNYIYA V. OKUDO 1976 6-9 SC 32,OGUNMADE V. FADAYIRO 1972 8-9 SC 1 and NAFIU RABIU V. THE STATE 1980 8-11 SC 130. From the foregoing, it seems to me that, by the omission of the steps provided inSection 55, the Appellant would appear to have been denied the opportunity to be heard before the grant of Orders 2 and 3 as contained in the Ruling of the Court, for distrainupon any land, premises or place of business and any movable goods, chattel and any kind of property of the Appellant, with respect. Fair hearing, first and foremost involvesor means at least in civil cases that both sides be given an opportunity to present their own side of the story. It means that each side is entitled to know the case that is beingmade against it and be afforded an opportunity of a reply. It therefore lies in the procedure followed in the determination of a matter and not whether or not the decision iscorrect. This right is fundamental and guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. Breach of it vitiates proceedings and renders it nulland void as occasioning miscarriage of justice. See the cases of OLUFEAGBA V. ABDUL-RAHEEM 2009 40 NSCQR 684, SAMBA PETROLEUM LTD. V. UBA 2010 43 NSCQR 119,SALEH V. MONGUNO 2003 1 NWLR PT. 801 221, MPAMA V. FBN PLC. 2013 5 NWLR PT. 1346 175 and THE REGENCY COUNCIL OF OLOTA OF OTTA &amp; ORS. V. O. T. DADA&amp; ORS 2013 LPELR-CA/I/34/97. It is pertinent to note that, a person who establishes a denial of his right to fair hearing is not required to prove that he suffered amiscarriage. The argument by the Respondent that, it complied with the provision of Section 55 of the PITA and that Exhibit MOJ2 should be taken as the demand noticereferred to therein cannot stand as it is obvious from the requirements of the Section that there was no compliance therewith. As stated by the apex Court: "It is now firmlyestablished that where a statute lays down a procedure for doing a thing, there should be no other method of doing it." See the cases of NWANKWO &amp; ORS v. YAR'ADUA&amp; ORS 2010 LPELR-2109 SC, CCB PLC V. THE ATTORNEY-GENERAL OF ANAMBRA STATE 1992 10 SCNJ 37, 163, BUHARI V. YUSUF 2003 6 S.C. PT.II 156, 2003 4 NWLR PT.841 446, 492. In the case of ADESOLA V. ALHAJI ABIDOYE &amp; ANOR. 1999 12 SCNJ 61, 79, the Court repeated the position thus: "...where a special statutory provision islaid down, that procedure, ought to be followed and complied with unless it is such that may be waived." In my considered view and humbly, the necessary application oughtto have been in pursuit of the relevant facts, records and documents for the purposes of computation and assessment of outstanding tax to be paid and Relief 1 as grantedwould have been in order that is; "compelling the Appellant to submit all the documents/records required by the Claimant/Applicant to carry out the investigation onWithholding Tax on interest." That not being the case, one finds that, the Appellant was not granted the opportunity provided under the PITA before the order for distrain wasgranted against it. Being an issue of lack of opportunity to be heard, in other words, denial of its right to fair hearing, it is my respectful view that, this Court should interferewith and disturb the decision of the learned Court below as the whole proceedings have been affected."</span>Per WILLIAMS-DAWODU, J.C.A. (Pp. 20-32, Paras. C-D) - read incontext

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ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,

J.C.A.(Delivering the Leading Judgment): This appeal is

against the Ruling of the Ekiti State High Court delivered

by the Hon. Chief Judge A. S. Daramola on May 9th 2016,

in favour of the Respondent, (the Applicant at the Court

below) pursuant to its Motion ex –parte dated April 13th

2016.

The said Motion was filed on March 22nd 2016 together

with an affidavit of urgency of 14 paragraphs dated April

18th 2016, a 20 paragraph affidavit in support also dated

April 18th 2016, written address and two letters, marked as

Exhibits MOJ1, dated January 22nd 2015 and MOJ2, dated

August 18th 2015, both from the Respondent to the

Appellant, the Notification in respect of tax audit and

investigation on withholding tax on interest and the Final

Reminder respectively. See pages 1 - 19 of the printed

Record before this Court.

The following reliefs in the main were sought therein by the

Respondent:

1. An order compelling the Respondent to submit all

the documents / records requ i red by the

Claimant/Applicant to carry out investigation on

Withholding Tax on interest to wit:

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a. The entire General Ledger of the Respondent’s

Branch from May 29, 1999 to date (in soft copies) and

on yearly basis.

b. All the subsidiary ledgers (in soft copies) of the

Respondent’s branch on a yearly basis including but

not limited to;

i. Customers’ Deposit Liability Accounts (i.e. Savings

Accounts, Current Accounts, Call Accounts, Fixed

Deposit Accounts etc).

ii. Any other Customers’ Liability Accounts

c. Annual Management and Audited Accounts (both in

soft copies and hard copies) on a yearly basis.

d. Evidence of remittance of fully deducted and

deductible Withholding Taxes on Interest.

e. Interest Expense Accounts for Respondent’s each

individual branch in the State from 29/05/1999 to

date.

f. Withholding Tax on Credit Interest for the

Respondent’s each individual branch in the State

from 29/05/1999 to date.

g. Individual customer’s accounts per branch per

month from 29/05/1999 to date.

h. Monthly Trial Balance for each branch from

29/05/1999 to date.

i. Any other relevant documents relating thereto that

may aid the expedited conclusion of our tax

investigations.

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2. An order granting leave to the Applicant to distrain

upon any land, premises or place of business of the

Respondent herein for its failure to submit all the

documents/records required to carry out the

investigation on Withholding Tax on interest in soft

or/and hard copies between May, 1999 to date to the

Board of Internal Revenue.

3. An order to distrain against any moveable goods,

chattel, bond or securities of any kind of property

belonging to the Respondent until the Respondent

will submit all the documents/records required by the

Ekiti State Board of Internal revenue to carry out the

investigation on Withholding Tax on interest in soft

or/and hard copies between May, 1999 to date to the

Ekiti State Board of Internal Revenue.

The Respondent as the name goes is the Ekiti State Board

of Internal Revenue, statutorily created vide Ekiti State

Board of Internal Revenue Law, No. 18 of 2012 and has the

duty in the main and amongst others to collect and enforce

payment of taxes due to the State Government from all

persons chargeable with tax in the State. In that pursuit, it

can investigate all cases of tax fraud or evasion in order to

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ensure compliance with the law. In the main, the

Respondent’s application prayed that the Appellant be

compelled to submit the documents listed therein to enable

it carry out some of its statutory duty of investigation on

withholding tax on interest.

The Appellant is a licensed banking industry in Nigeria with

branch offices all over the Country including Ekiti State.

The Appellant, as part of its banking business, practice and

procedure, is in a position to collect Withholding Tax on

their customers’ interest and remit same to the

Respondent.

The Respondent’s story as garnered from the Record

through its affidavit is that, it discovered that the Appellant

was not remitting tax collected to the Respondent. It

therefore applied to the Court for the said documents in

order to ascertain the amount of tax collected and not

remitted by the Appellant in spite of its notice and final

reminder, Exhibits MOJ1 and MOJ2 and an order to

distrain.

Being dissatisfied with the said Ruling, the Appellant has

approached this Court with its Notice of Appeal, dated and

filed on June 8th 2016, containing five (5) grounds of

appeal as contained on pages 31 - 36 of the Record.

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THE RELIEFS BEING SOUGHT:

I. An order setting aside the Ex parte orders made by

the High Court of Ekiti State Coram DARAMOLA C. J.

in the Ruling dated the 9th day of May 2016 in SUIT

NO: HAD/231M/2016.

II. An Order striking out SUIT NO: HAD/231M/2016 in

its entirety for incompetence.

Parties in compliance with the Rules of this Court filed and

exchanged their briefs of argument. Appellant’s brief dated

July 27th 2017 and filed on the same date was settled by

Richard Abdullahi Esq. whilst that of the Respondent’s

dated September 21st 2017 was filed September 26th 2017

and settled by Yakubu Dauda Esq.

In pursuit of its appeal, the Appellant submitted the

following issues for consideration:

1. Whether the learned trial Chief Judge acted with

jurisdiction when he granted all the interim orders

sought by the Respondent by way of substantive,

absolute and final orders when the Respondent

neither instituted a substantive action nor claimed

any substantive relief in the suit ( Ground 1).

2. Whether the learned trial Chief Judge was right

when he granted the substantive, final and absolute

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orders sought in the Respondent’s Motion Ex Parte

dated the 18th day of April 2016 without affording the

Appellant a fair hearing (Ground 2).

3. Whether upon a proper construction of the

provisions of Section (sic) 55 and 104 of the Personal

Income Tax Act 2011, the learned trial Chief Judge

was right when he held that the Respondent complied

with those provisions (Ground 3).

4. Whether from the totality of Sections 55 and 104 of

the Personal Income Tax Act 2011, the Respondent is

the proper person to approach the lower Court to

specie of reliefs ore (sic) remedy provided under

Section 104 of the Act (Ground 5).

Issues submitted by the Respondent:

1. Whether the learned trial Chief Judge was not right

to have entertained the Respondent’s suit and

granted its Reliefs having regard to the provisions of

Section 104 (3) of the Personal Income Tax Act Cap

P8 Laws of Federation of Nigeria 2004 (as amended)

by the Personal Income Tax (Amendment) Act 2011.

2. Whether the entertainment of the ex parte

application of the respondent and consequent grant

of the reliefs sought therein having regard to the

attitude of the appellant to the letters of 22nd of

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January and 18th of August 2015 served on it by the

respondent has in any way breached appellant’s right

to fair hearing.

3. Whether having regard to the facts and

circumstances of this case vis-à-vis the provisions of

Section 104 (3) of the Personal Income Tax

(Amendment) Act the respondent is not permitted to

institute this action before the trial Court with a view

to construing the word “SHALL’’ in the Section as

connoting permissive.

Considering the above stated Issues by both sides, one is

satisfied, particularly as empowered to formulate,

reformulate and amend issues submitted by parties, that, a

singular issue would suffice for the determination of this

appeal thus:

“Whether or not the Court below was right when it

entertained and granted the Ex- parte application of

the Respondent and whether or not it was right when

it held that the Respondent complied with the

provisions of Sections 55 and 104 of the Personal

Income Tax Act 2011 (PITA).”

Before proceeding to consider the submissions made on

behalf of both sides for and against this appeal, it is

necessary and for obvious reasons that the

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preliminary objection raised herein by the Respondent

ought and should first of all be considered and determined

one way or the other.

RESPONDENT’S PRELIMNARY OBJECTION

The Respondent raised an objection to paragraphs 7.10 to

7.15 of the Appellant’s brief and prays this Court to

discountenance and strike out the said paragraphs. The

ground for the objection is that the paragraphs have no

bearing with any of the aforestated 4 issues formulated by

the Appellant.

The learned Respondent’s Counsel submitted that, the

Appellant’s argument is incompetent as there was no leave

of the Court prior to it and the issue of fourteen (14) days

does not arise from any of the four issues and cited the

case of DR. AUGUSTINE MOZIE & ORS V. CHIKE

MBAMALU & ORS 2006 LPELR 1922 SC. he therefore

urged that the said paragraphs 7.10-7.15 be struck out.

The learned Appellant’s Counsel did not file any reply to

the Respondent’s objection. The Court, whatever the case,

is bound to consider the objection and determine same one

way or another.

For the purposes of clarity and easy reference, the four

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issues submitted by the Appellant shall be reproduced

hereunder thus:

1. Whether the learned trial Chief Judge acted with

jurisdiction when he granted all the interim orders

sought by the Respondent by way of substantive,

absolute and final orders when the Respondent

neither instituted a substantive action nor claimed

any substantive relief in the suit. (Ground 1).

2. Whether the learned trial Chief Judge was right

when he granted the substantive, final and absolute

orders sought in the Respondent’s Motion Ex Parte

dated the 18th day of April 2016 without affording the

Appellant a fair hearing (Ground 2).

3. Whether upon a proper construction of the

provisions of Section (sic) 55 and 104 of the Personal

Income Tax Act 2011, the learned trial Chief Judge

was right when he held that the Respondent complied

with those provisions. (Ground 3).

4. Whether from the totality of Sections 55 and 104 of

the Personal Income Tax Act 2011, the Respondent is

the proper person to approach the lower Court to

specie of reliefs ore (sic) remedy provided under

Section 104 of the Act (Ground 5).

I shall now proceed to consider the said paragraphs 7.10 -

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7.15 as contained on pages 12 - 15 of the Appellant’s brief

of argument, wherein submission was made and in

particular in respect of issue no. 4. It was submitted thus:

That Sections 55 or 104 of the Personal Income Tax Act

2011 (PITA) do not provide that the Respondent shall apply

to the Court to compel the taxable person to submit

documents and records to the tax authority but that an

officer duly authorized by the tax authority is the proper

person to apply for a warrant of distress or to distrain upon

movable or immovable property. He cited in support the

cases of ORAKUL RESOURCES LTD. V. N.C.C. 2007 16

NWLR PT1060, OIKHERHE V. INWANFERO 1997 7

NWLR PT. 512 226, BUHARI V. YUSUF 2003 14 NWLR

PT. 841 446 and DONGTOE V. C.S.C PLATEAU STATE

2001 9 NWLR PT. 717 132. That, the express mention of

a duly authorized officer in Section 104 (3) excludes the

Respondent from bringing the application before the Court

below. That, by the combined effect of Section 104 (4), (5)

and (7) of the PITA, the Court upon an application by a duly

authorized officer of the tax authority should have issued a

warrant of distress upon the goods and chattels of the

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taxable person for 14 days and not indefinitely or

perpetually. He added that, the order of the Court

empowering the Respondent to distrain upon any land,

premises and place of business of the Respondent without a

time limit was outside the provision of Section 104 of the

PITA. He argued that, the legal meaning and enforcement

of the word ‘’distress’’ is limited to the personal or movable

property of the taxable person and not its real or

immovable as ordered by the Court.

The foregoing is the content of paragraphs 7.10 - 7.15 by

the Appellant and particularly in respect of the said Issue 4

as submitted.

In my considered view and humbly, one is unable to find

what offends therein as opposed to the contention of the

Respondent. Further, in my view, it is a different matter

entirely whether or not the submission made in respect of

Issue 4 is right or wrong, a decision which will be

premature to make at this stage. The argument that, there

was need to have obtained the leave of Court before the

submission in respect of issue 4 by the Appellant cannot

stand. Indeed, when one considers Issues 1, 2 and 3, with

respect to the

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content of paragraphs 7.10 -7.15, there is nothing that

offends therein. As already stated, whether or not the

answers or submission to the Issues raised by the Appellant

are correct, is another matter entirely. In the result, I am

unable to sustain the objection raised by the Respondent. It

therefore fails and is hereby accordingly dismissed.

In view of the foregoing position, the way is now clear to

consider and determine the appeal on its merit. I shall

proceed to consider the submissions on behalf of both

parties.

SUBMISSION ON BEHALF OF THE APPELLANT

Mr. Richard Abdullahi Esq. the learned Appellants’ Counsel

submitted that, it was against the Ekiti State High Court

Civil Procedure Rules, Order 3 Rules 1, 3, 6 and 8 and

Order 39 Rule 8 for the Court to have granted substantive,

absolute and final orders to the Respondent when there

was no Writ or Originating Summons or any other

prescribed form of commencement of action and cited in

support the cases of SALEH V. MONGUNO 2003 1

NWLR PT. 801 222, UBA V. EKPO 2003 12 NWLR PT.

834 332 and DONGTOE V. C.S.C. PLATEAU STATE

2001 9 NWLR PT. 717 132.

He submitted that, by virtue of Section 36

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(1) of the 1999 Constitution of Nigeria, the right to fair

hearing was denied the Appellant as substantive orders and

final pronouncements were made against it and in support,

cited the cases of O. O. M. F. LTD. V. NACB LTD. 2008

12 NWLR PT. 1098 412, GROUP DANONE V. VOLTIC

2008 7 NWLR PT. 1087 637 and A-G RIVERS STATE

V. UDE 2006 17 NWLR PT. 1008 436. Further that,

there was no real urgency in respect of the facts deposed to

in the Respondent’s affidavit. He submitted therefore that,

the orders granted are null and void having been granted

without any opportunity to the Appellant to be heard and

should be set aside. In support, he cited the case of LEEDO

PRESIDENTIAL MOTEL V. BON LTD. (1998) 10 NWLR

PT. 570 353.

He contended that, the Respondent failed to comply with

the provisions of Sections 55 and 104 of the PITA and

therefore, ought not to have been granted the prayers

sought. That, Section 55 did not provide for the use of an

Ex parte application and cited in that regard, the cases of

OJUKWU V. OBASANJO 2004 12 NWLR PT. 886 169

and FEDERAL BOARD OF INLAND REVENUE V.

HALLIBURTON WA LIMITED 2014 LPELR-24230. The

Respondent was

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therefore, wrong to seal up the Appellant’s business

premises as it acted ultra vires its powers, he argued, upon

the orders wrongly procured from the Court. On Section

104 of the PITA, he submitted that the Respondent equally

failed to comply with the provisions therein. He argued

that, by Sections 55 (1), (2), and 104, the Respondent ought

to have used best of judgment to assess the taxable person

at such amount or additional amount and thereafter serve

the assessment on the taxable person. That, where after

thirty (30) days the taxable person fails to object to the

assessment or additional assessment, it becomes final and

conclusive and by Section 104 (1), the tax authority can

serve a demand notice. That, only upon failure to pay

within the time specified in the notice that the enforcement

of the powers under 104 (3) can follow and that, that, was

not the case with the Appellant. In support he cited the

case of NWOKORO V. ONUMA 1990 3 NWLR PT. 136

22. As the condition precedent in Section 104 (1) of the

PITA was not complied with by the Respondent, the

subsequent steps were invalid and should be set aside he

added.

The learned Counsel argued that, there is no

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provision in Sections 55 and 104 of the PITA to compel a

taxable person to submit documents and records to the tax

authority and cited in that regard the case of BUHARI V.

YUSUF 2003 14 NWLR PT. 841 446. That, the remedy

provided in Section 104 (3) applies only when the condition

precedent has been fulfilled and it is an officer duly

authorized by the tax authority that shall apply to the Court

for a warrant of distress or to distrain. In support he relied

on the cases of ORAKUL RESOURCES LTD. V. N.C.C.

2007 16 NWLR PT. 1060 270 and OIKHERE V.

INWANFERO 1997 7 NWLR PT. 512 226. He argued

further that, even where there was compliance, by the

combined effect of Sections 104 (4), (5) and (7) of the PITA,

the Court should have issued a warrant of distress upon the

goods and chattels of the Appellant for only 14 days and

not indefinitely or perpetually. Therefore, the orders

granted as they stand are outside Section 104. He also

argued that, what to be distrained ought not to include the

real or immovable property of the Appellant as ordered by

the Court. In conclusion, he urged that, the orders of the

Court below be set aside as the Court lacked jurisdiction in

that respect.

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SUBMISSION ON BEHALF OF THE RESPONDENT

The learned Counsel for the Respondent, Mr. Yakub Dauda

Esq. submitted as follows:

That, the Court had jurisdiction to have entertained the

application by the Respondent and that by Section 103 (4)

of the PITA, the Respondent can apply to the Court where it

intends to institute an action and by Section 104 (3) and

Section 251 (1) (a) of the 1999 Constitution, the Court had

jurisdiction. In support, he cited the cases of LAGOS

STATE REVENUE BOARD V. MOTOROLA NIGERIA

LTD. & ANOR. 2012 LPELR-14712-CA, IKEJA HOTELS

PLC. V. LAGOS STATE INTERNAL REVENUE BOARD

2005 17 NWLR PT. 954 343 and SHITTU V. N.A.C.B.

LTD. & 2 ORS 2001 10 NWLR PT. 721 298. He noted in

that regard that, Ground 4 of the Appellant’s Grounds of

appeal was abandoned. He submitted that, the Respondent

was properly before the Court below in view of the

provision of Section 104 (4) which allows an application ex

parte for a warrant of distress. Therefore, he added that,

the Court was correct to have entertained the Respondent’s

application having literally interpreted the provision of

Section 104 (4) in respect of ex

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parte application and cited in support the cases of A-G

BAYELSA STATE V. A-G RIVERS STATE 2006

LPELR-615 SC and JOE UWAGBA V. FEDERAL

REPUBLIC OF NIGERIA 2009 LPELR-3443 SC. He

argued that, the provision of Section 104 (4) is specific as

opposed to Order 3 Rules 1, 3, 6 and 8 of the Ekiti State

High Court Civil Procedure Rules 2011, which is of general

application and should give way to the specific provision. In

support, he cited the cases of MADUMERE V. OKWARA

2013 12 NWLR PT. 1368 303 and A-G OGUN STATE &

ORS V. A-G FEDERATION 2003 FWLR 206. He argued

further that, the Respondent’s application was the last

resort, as the Appellant failed to supply the documents

needed for assessment of deductible taxes and gave no

reason for its refusal after its receipt of the Respondent’s

demand notices.

The learned Counsel submitted that the Appellant’s right to

fair hearing was not breached as it was given every

opportunity in the circumstance of the case to present its

own side of the case through the letters Exhibits MOJ1 and

MOJ2 of January 22nd and August 18th 2015 respectively

and cited in support, the cases of

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INDEPENDENT TELEVISION/RADIO V. EDO STATE

BOARD OF INTERNAL REVENUE 2014 ALL FWLR PT.

759 1144 and NEWSWATCH COMMUNICATIONS

LIMITED V. ATTA 2006 12 NWLR PT. 993 144. He

argued that, the absence of assessment or additional

assessment which the Appellant argued ought to be the

proper step was its own doing, as it refused to supply the

necessary documents for assessment to the Respondent.

Therefore, it is unconscionable for it to complain that

Section 55 was not complied with he added and urged this

Court to hold that, the Respondent complied with Sections

55 and 104 of the PITA. He cited in that regard, the cases

of SALEH V. MONGUNO & ORS 2006 ALL FWLR PT.

332 1411 and PDP & ORS V. EZEONWUKA & ANOR

2017 LPELR-42563 SC.

On whether or not it was the Respondent itself or its duly

authorized officer that should apply to the Court for a

warrant to distrain, it is argued on behalf of the

Respondent that, the Appellant has failed to show what

penalty and prejudice it suffered by the Respondent’s

application. He argued that, the word shall in Section 104

(3) should not be taken as a mandate where strict

adherence would result in absurdity

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and cited the cases of AMADI V. N.N.P.C. 2000 10

NWLR PT. 674 76 and NYESOM V. PETERSIDE 2016

ALL FWLR 38. In conclusion, he urged that the Appellant’s

appeal be dismissed as lacking merit.

RESOLUTION BY THE COURT

The sole issue as adopted is hereunder reproduced for ease

of reference.

SOLE ISSUE

“Whether or not the Court below was right when it

entertained and granted the Ex-parte application of

the Respondent and whether or not it was right when

it held that the Respondent complied with the

provision of Sections 55 and 104 of the Personal

Income Tax Act 2011.”

Before proceeding herein, it is important to note and as

submitted by the learned Respondent’s Counsel that, it

would appear that the Appellant abandoned Ground 4 of its

Grounds of Appeal. Ground 4 as contained on page 34 of

the Record states thus:

"The learned Chief Judge erred in law when he

exercised jurisdiction to grant the final Ex-parte

Orders sought by the Respondent in the Motion Ex-

Parte dated the 18th day of April, 2016, when

jurisdiction is exclusively vested in the Federal High

Court."

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It is trite that where no issue for determination is

formulated from a particular ground as in respect of

Ground 4 (above stated) that Ground of appeal is deemed

abandoned and should be struck out. See the cases of

A.N.P.P. V. INEC 2004 7 NWLR PT. 871 16,

BHOJSONS PLC. V. DANIEL-KALIO 2006 5 NWLR PT.

973 330, BAYERO V. MAINASARA & SONS LTD. 2006

8 NWLR PT. 982 391. In consequence therefore, Ground

4 of the Appellant’s Grounds of appeal is hereby struck out

having been abandoned.

I shall now proceed to determine the sole issue

The provisions of Sections 55 and 104 of the PITA, for ease

of reference and better appreciation of same are hereunder

stated thus:

Additional assessment

55. (1) If the relevant tax authority discovers or is of

opinion at any time that a taxable person liable to

income tax has not been assessed or has been

assessed at a less amount than that which ought to

have been charged. The relevant tax authority may,

within the year of assessment or within six years after

the expiration thereof and as often as may be

necessary, assess the taxable person at such amount

or additional amount as ought to have been charged,

and

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the provisions of this Act as to notice of assessment,

appeal and other proceedings shall apply to that

assessment or additional assessment and to the tax

thereunder.

(2) For the purpose of computing under Subsection

(1) of this section the amount or the additional

amount which ought to have been charged. All

relevant facts consistent with paragraph (b) of the

proviso to Section 66 (2) of this Act shall be taken

into account whether or not known when a previous

assessment or an additional assessment on the same

taxable person for the same year was being made or

could have been made: Provided that where any form

of fraud, willful default or neglect has been

committed by or on behalf of a taxable person in

connection with any tax imposed under this Act, the

relevant tax authority may at any time and as often as

may be necessary assess that taxable person at such

amount or additional amount as may be necessary for

the purpose of making good any loss of tax

attributable to the fraud, willful default or neglect.

Power to distrain for non-payment of tax (As amended

by the Personal Income Tax (Amendment) Act 2011)

Tax (Amendment) Act 2011)

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104. (1) Without prejudice to any other power

conferred on the relevant tax authority for the

enforcement of payment of tax due from a taxable

person that has been properly served with an

assessment which has become final and conclusive

and a demand notice has been served upon the person

in accordance with the provisions of this Part of this

Act, or has been served upon the person, then, if

payment of tax is not made within the time specified

by the demand notice, the relevant tax authority may,

in the prescribed form, for the purpose of enforcing

payment of tax due -

(a) distrain the taxpayer by his goods, other chattels,

bond or other securities; or

(b) distrain upon any land, premises or places in

respect of which the taxpayer is the owner and,

subject to the provisions of this section, recover the

amount of tax due by sale of anything so distrained.

(2) The authority to distrain under this section shall

be in the form prescribed by the relevant tax

authority.

(3) For the purpose of levying any distress under this

section, an officer duly authorized by the relevant tax

authority shall apply to a Judge of a High Court

sitting in Chambers, under oath for the issue of

a warrant under this section.

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(4) The Judge may, on application made ex-parte,

authorize such officer, referred to in Sub-section (3)

of this section, in writing to execute any warrant of

distress and, if necessary, break open any building or

place in the daytime for the purpose of levying such

distress and he may call to his assistance any police

officer and it shall be the duty of any police officer

when so required to aid and assist in the execution of

any warrant of distress and in levying the distress.

(5) The distress taken pursuant to this section may, at

the cost of the owner, be kept for 14 days, at the end

of which time, if the, amount due in respect of tax and

the cost and charges incidental to the distress are not

paid, the same way be sold.

(6) There shall be paid out of the proceeds of sale, in

the first instance, the cost or charges incidental to

the sale and keeping of the distress and the residue,

if any, after the recovery of the tax liability, shall be

payable to the owner of the things distrained or to the

appropriate Court where the owner cannot be traced,

within 30 days of such sale.

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(7) In exercise of the powers of distress conferred by

this section, the person to whom the authority is

granted under sub-section (3) of this section may

distrain upon all goods, chattels and effects

belonging to the debtor wherever the same may be

found in Nigeria.

(8) Nothing in this section shall be construed as

authorizing the sale of any immoveable property

without an order of a Court of competent jurisdiction.

From the foregoing provisions of Sections 55 and 104 of

the PITA, two things in my considered view and humbly

stand out and need be noted as follows:

Section 55 provides for a situation where the tax authority

discovers that, a taxable person has not been assessed or

was under assessed, the tax authority is therefore

empowered to have and use all facts necessary for the

computation of the outstanding tax for its assessment of the

taxable person. It shall within the year of assessment or

within six (6) years after the expiration thereof and as often

as may be necessary, assess the taxable person at such

amount or additional amount as ought to have been

charged.

As regards Section 104;

It is a situation where there has been assessment and the

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taxable person has refused and failed to respond or pay

after he/it has been properly served with an assessment

which has become final and conclusive and a demand

notice has also been served specifying the time limit for

payment. Where, there is a failure to pay, the tax authority

may for the purpose of enforcing payment of the tax due,

distrain the taxpayer by his goods, other chattels, bond or

other securities, or distrain upon any land, premises or

places in respect of which the taxpayer is the owner and

recover the amount of tax due by sale of anything so

distrained.

The Respondent applied under the above stated two

Sections and for the reliefs already reproduced at the Court

below. In my humble view, it would seem that, there was a

mix up and lumping together of the steps and rights of

action open to the Respondent against an alleged

defaulting taxable person/the Appellant, at the time it went

to Court, given the provisions of the above stated relevant

Sections of the PITA.

Herein, these facts would appear not in dispute between

the parties:

a. That the Respondent is a statutory body with the

responsibility amongst others to collect taxes from all

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persons chargeable with tax in Ekiti State, enforce payment

of taxes, investigate all cases of tax fraud or evasion with a

view to determining compliance with the provision of the

relevant laws, adopt measures for compliance, enforcement

and regulatory actions etc.

b. Appellant is a licensed bank in Nigeria and in a position

to collect withholding tax on its customers’ interest and

transmit same to the Respondent.

The story of the Respondent is that, the Appellant has not

been remitting all the withholding tax collected from its

customers on its behalf and that, it needs the records and

documents on the withholding tax since May 29, 1999 to

date, in the custody of the Appellant, to enable it properly

and correctly assess the amount of tax outstanding and

that, the Appellant has a duty therefore, to remit the sum

that will be assessed as outstanding. On pages 5-6 of the

Record, it stated the particulars of the records and

documents needed from the Appellant. By Exhibit MOJ1,

January 22nd 2015, it notified the Appellant of proposed tax

audit and investigation on withholding tax from May 29th

1999 and requested to be given the documents for the

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purpose of the necessary assessment. See pages 9-10 of the

Record. A final reminder in that regard was sent to the

Appellant, Exhibit MOJ2, on August 18th 2015. See pages

11-12 of the Record. Upon the non-response and inaction of

the Appellant, the Respondent as already stated, proceeded

to the Court with the Ex-parte application upon which the

Court ruled and the instant appeal, the resultant effect.

From the provision of the PITA, Section 55, the proper step

to be taken by the Respondent upon the Appellant’s non-

remittance of the documents requested for the purpose of a

final and conclusive assessment and issuance of a final

demand notice, in my considered view and humbly, ought

to be the invocation of the provision of Section 55 (1). In

other words, to follow the steps laid down therein, which is,

to assess the amount to be paid and notify the Appellant of

same. Section 55 (2) states that, for computation,

assessment of the outstanding tax to be paid, the tax

authority is entitled to use all relevant facts. From the

Record, the Respondent was not in possession of the

necessary documents which gave rise to its letter of

demand

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and final reminder, Exhibits MOJ1 and MOJ2 respectively.

As contained in the Record, there was still no response in

spite of the said Exhibits MOJ1and MOJ2. That being the

position, the next proper step from the combined reading of

Sections 55 and 104 (1) to be taken by the tax authority

ought to have been an application to compel the surrender

of the relevant facts, records and documents as it could not

assess without the relevant facts and documents. This

position is because, it is only when an assessment has been

made, which is conclusive and final, demand notice thereof,

communicated to the taxable person, with time limit within

which payment should be made and there is a default or

non-compliance that, there can be invocation of the

provision of Section 104 (2) – (7) particularly Subsection

(4), which provides for the use of an Ex-parte application

and the order to distrain or warrant of distress. An Ex-parte

application according to Section 104 (4), in my view with

respect, can properly be filed and entertained by the Court,

for failure to pay tax assessed, after the steps provided in

Section 55 have been taken as afore stated. It is pertinent

to

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note that, provision is made in Section 58 PITA where there

is any objection to an assessment in Section 55 (1) and it is

after these Sections have been complied with that an Ex

parte application for issue of warrant for distress in Section

104 can be pursued. One has carefully given the literal and

ordinary meaning to Sections 55 and 104 of the PITA. As

stated and reiterated by the apex Court:

"The general rule of interpretation of statutes has

also been laid by this Court in several decisions and

the rule is that where the words of a statute are plain,

clear and unambiguous, the Court shall give effect to

their literal meaning. This is the Literal Rule of

interpretation of Statutes…"

See the cases of ABEGUNDE V. THE ONDO STATE

HOUSE OF ASSEMBLY 2015 LPELR-SC 643/2014 and

OGBUNYIYA V. OKUDO 1976 6-9 SC 32, OGUNMADE

V. FADAYIRO 1972 8-9 SC 1 and NAFIU RABIU V.

THE STATE 1980 8-11 SC 130.

From the foregoing, it seems to me that, by the omission of

the steps provided in Section 55, the Appellant would

appear to have been denied the opportunity to be heard

before the grant of Orders 2 and 3 as contained in the

Ruling of the

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Court, for distrain upon any land, premises or place of

business and any movable goods, chattel and any kind of

property of the Appellant, with respect. Fair hearing, first

and foremost involves or means at least in civil cases that

both sides be given an opportunity to present their own

side of the story. It means that each side is entitled to know

the case that is being made against it and be afforded an

opportunity of a reply. It therefore lies in the procedure

followed in the determination of a matter and not whether

or not the decision is correct. This right is fundamental and

guaranteed by Section 36 of the 1999 Constitution of the

Federal Republic of Nigeria. Breach of it vitiates

proceedings and renders it null and void as occasioning

miscarriage of justice. See the cases of OLUFEAGBA V.

ABDUL-RAHEEM 2009 40 NSCQR 684, SAMBA

PETROLEUM LTD. V. UBA 2010 43 NSCQR 119,

SALEH V. MONGUNO 2003 1 NWLR PT. 801 221,

MPAMA V. FBN PLC. 2013 5 NWLR PT. 1346 175 and

THE REGENCY COUNCIL OF OLOTA OF OTTA & ORS.

V. O. T. DADA & ORS 2013 LPELR-CA/I/34/97. It is

pertinent to note that, a person who establishes a denial of

his right to fair hearing is not required to

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prove that he suffered a miscarriage. The argument by the

Respondent that, it complied with the provision of Section

55 of the PITA and that Exhibit MOJ2 should be taken as

the demand notice referred to therein cannot stand as it is

obvious from the requirements of the Section that there

was no compliance therewith. As stated by the apex Court:

"It is now firmly established that where a statute lays

down a procedure for doing a thing, there should be

no other method of doing it."

See the cases of NWANKWO & ORS v. YAR'ADUA &

ORS 2010 LPELR-2109 SC, CCB PLC V. THE

ATTORNEY-GENERAL OF ANAMBRA STATE 1992 10

SCNJ 37, 163, BUHARI V. YUSUF 2003 6 S.C. PT.II

156, 2003 4 NWLR PT. 841 446, 492. In the case of

ADESOLA V. ALHAJI ABIDOYE & ANOR. 1999 12 SCNJ

61, 79, the Court repeated the position thus:

"….where a special statutory provision is laid down,

that procedure, ought to be followed and complied

with unless it is such that may be waived.”

In my considered view and humbly, the necessary

application ought to have been in pursuit of the relevant

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facts, records and documents for the purposes of

computation and assessment of outstanding tax to be paid

and Relief 1 as granted would have been in order that is;

"compelling the Appellant to submit all the

d o c u m e n t s / r e c o r d s r e q u i r e d b y t h e

Claimant/Applicant to carry out the investigation on

Withholding Tax on interest."

That not being the case, one finds that, the Appellant was

not granted the opportunity provided under the PITA

before the order for distrain was granted against it. Being

an issue of lack of opportunity to be heard, in other words,

denial of its right to fair hearing, it is my respectful view

that, this Court should interfere with and disturb the

decision of the learned Court below as the whole

proceedings have been affected.

In the result, this appeal in that regard succeeds. The

Ruling of the Ekiti State High Court delivered by Hon.

Justice A. S. Daramola CJ, on May 9th 2016 is hereby set

aside.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had read in

draft the judgment just delivered by my learned brother,

E.O Williams- Dawodu, J.C.A. and I agree with his

reasoning and conclusions. In the result, this appeal in

that regard succeeds.

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The ruling of the Ekiti State High Court delivered by Hon.

Justice A. S. Daramola CJ, on May 9th 2016 is hereby set

aside.

FATIMA OMORO AKINBAMI, J.C.A.: This appeal is

against the decision of the High Court of Ekiti State,

delivered by Hon. Justice A. S Daramola on the 9th day of

May, 2016.

I had the advantage of reading in advance, the judgment

just delivered by my learned brother E.O. WILLIAMS-

DAWODU, J.C.A.

All the issues for determination in the appeal have been

extensively and exhaustively dealt with in the lead

judgment.

I have nothing useful to contribute to the well researched

reasoning and conclusions arrived at, in the lead judgment.

I adopt same as mine.

The Ruling of the Ekiti State High Court delivered by Hon.

Justice A. S. Daramola CJ, on May 9th 2016 is hereby set

aside.

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Appearances:

O.J Akokaike, Esq. For Appellant(s)

Yakub Dauda, Esq. For Respondent(s)

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