Alhaji Audu Bida Vs Commissioner Of Revenue (1972)
LawGlobal-Hub Lead Judgment Report
LEWIS, J.S.C.
In Suit NCH/26/70 in the Kaduna High Court the plaintiff’s claim as formulated in the writ was for arrears of income tax due from the defendant in the sum of 24,317 15/-(pounds), and paragraph 2 to 5 of the statement of claim read:
“2. The defendant is owing the plaintiff the sum of 24 pounds,317:15s being arrears of personal tax liability for the years 1965/66, 1966/67, 1967/68, 1968/69, 1969/70.
- The defendant had at all time material to this action been earning taxable income.
- The defendant was assessed by the plaintiff and notices of the assessment for the years aforesaid were sent by registered post to the defendant.
PARTICULARS
Amount
Tax outstanding
owing
1965/66 (additional assessment) due for payment on 1-12-67
4,803:9:=
1966/67 due for payment on 1-12-66
2,313:16:=
1966/67 (additional assessment) due for payment on 1-12-67
6,099:6:=
1967/68 (additional assessment) due for payment on 1-12-67
586:4:=
1968/69 (additional assessment) due for payment on 1-12-68
3,481:10:=
1969/70 (additional assessment) due for payment on 1-12-69
7,033:10:=
———————-
TOTAL. 24 pounds,317:15:=
———–
- The defendant made various payments between 8-11-67 and 30-4-70 and the amount so paid helped reduce the tax assessed to the sum now claimed.”
The defendant in his statement of defence denied liability and maintained that he had always paid his due taxes and later having got leave of the court he filed an additional paragraph 12 to his statement of defence which read:
“The defendant will contend at the hearing of this suit that the method prescribed by the Personal Tax Law for proof, namely section 29(1) read with section 43 (3), is inconsistent with the Constitution of Nigeria, and to the extent of that inconsistency is void.”
Reed C. J. then heard argument on that paragraph 12 of the statement of defence treating it as a preliminary objection and subsequently ruled against it. The hearing then took place and the learned Chief Justice gave judgment for the plaintiff for 23 pounds,317:15/- saying inter alia in his judgment:
“This is a claim for unpaid tax. In the writ of summons the claim was for 24 pounds,317:15.0d but after the issue of the writ the defendant paid the sum of 31 pounds,000 to the plaintiff thereby reducing his liability to 23 pounds,317:15.0d.
In support of the claim, which is brought under section 43 of the Personal Tax Law, the plaintiff called one witness, an Inspector of Taxes in the office of the plaintiff, who tendered a certificate which, the witness said, was signed by the Commissioner of Revenue of the North-Central State. This certificate was admitted under section 43(3) which reads:
‘In any suit under subsection (1) the production of a certificate signed by any person duly authorised by the Commissioner giving the name and address of the defendant and the amount of tax due from him shall be sufficient evidence of the amount so due and sufficient authority for the court to give judgment for the said amount.’
This certificate, exhibit B, was issued on 16th June, 1971, and sets out the amounts which the defendant is due to pay for the years 1965/66, 1966/67, 1967/68, 1968/69 and 1969/70, totaling 23 pounds,317:15. 0d and states that the amounts are due from the defendant as personal income tax Chapter 6 of the Law sets out the procedure by way of objection and appeal which a person who disputes an assessment may follow but section 29 states:
(1) Notwithstanding that an objection to an assessment is pendbefore the Commissioner, the whole of the tax assessed shall be paid in accordance with section 39 and, if it is not so paid, proceedings may be taken for its recovery in accordance with section 43.
(2) When the assessment is subsequently reduced with the result that too much tax has been paid the excess shall be refunded with such interest, if any, as may be prescribed.’
I am informed that the defendant has objected to the assessments and that the objection is pending; but this is irrelevant in view of section 29. I ruled during the trial that this court could not enquire into the merits of the amounts assessed. If a taxpayer does not agree with the amounts assessed his remedy is provided in Chapter 6 of the Law. I ruled, however, that this court could enquire into the validity of the assessments, whether the assessments were made in accordance with law. Counsel for the defendant complained, and this is relevant, that notices required by section 16(1) of the Law had not been served on the defendant by the plaintiff. There is no direct evidence before me concerning these notices. However, the certificate produced under section 43(3) is evidence that the tax is due; and from this it follows, in my view, that the certificate is evidence that all the requirements of the Law have been complied with. There is, therefore, evidence that the notices have been served and in the absence of any evidence from the defendant that they have not, I find that they have been served.
The defendant called evidence to show that payments were made in satisfaction of the sums he was assessed to pay. Such payments are, of course, relevant in deciding the plaintiff’s claim but without knowing the actual amounts assessed it is impossible for me to decide whether or not all or any of such payments have been properly credited against the defendant’s assessments. The plaintiff’s witness sought to prove an assessment by tendering the duplicate of the notice of assessment. Counsel for the defendant objected on the grounds that it was a duplicate and the objection was upheld. In fact the court’s attention had not, at that time, been drawn to section 26(2) of the Law which makes the duplicate admissible. The original was in the possession of the defendant and he could have produced it. He did not do so and in these circumstances I do not think he can complain that his evidence of payments to the plaintiff proves nothing. The certificate issued on 16th June, 1971 (exhibit B) is evidence that the amounts there set out are due as tax from the defendant to the plaintiff and I accept that evidence. ”
Against that decision the defendant appealed to this Court and the main point taken by Chief Williams on his behalf was that section 43(3) of the Personal Tax Laws which reads:
“(3) In any suit under subsection (1) the production of a certificate signed by any person duly authorised by the Commissioner giving the name and address of the defendant and the amount of tax due from him shall be sufficient evidence of the amount so due and sufficient authority for the court to give judgment for the said amount.”,
Should be interpreted so that the words “sufficient evidence” and “sufficient authority” respectively in that subsection meant that the production of the certificate was conclusive evidence in itself and that there is nothing the defendant could do to rebut it so that he was unable to put forward his case and accordingly his right was infringed to a fair hearing to which he was entitled under section 22(1) of the Constitution which reads:
“22. (1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:
Provided that nothing in this subsection shall invalidiate any law by reason only that it confers on any person or authority power to determine:
(a) Questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person; or
(b) Chieftaincy questions.”
In support of his contention that section 43(3) should be treated as making the certificate conclusive evidence, Chief Williams referred us to Ystalyfera Iron Co. v. Neath and Brecon Railway Co. (1873) L.R. 17 Eq. 142 which dealt with the interpretation of sections 16 and 17 of the Lands Clauses Consolidation Act. The two relevant sections of that Act read as follows:
“Section 16: Where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking, the whole of the capital or estimated sum for defraying the expenses of the undertaking shall be subscribed under contract binding the parties thereto, their heirs, executors, and administrators, for the payment of the several sums by them respectively subscribed, before it shall be lawful to put in force any of the powers of this or the special Act, or any Act incorporated therewith in relation to the compulsory taking of the land for the purposes of the undertaking.
Section 17: A certificate under the hands of two justices, certifying that the whole of the prescribed sum has been subscribed, shall be sufficient evidence thereof, and on the application of the promoters of the undertaking and the production of such evidence as such justices think proper and sufficient, such justices shall grant such certificate accordingly”.In considering these sections Jessel, M.R. at page 151 had said:
“. .. The first contention raised before me was that the word ‘sufficient’, in the absence of fraud, which is not alleged in this case, has the meaning which I will proceed to notice. The parties believed themselves to have obtained sufficient evidence, and obtained the usual certificate from the magistrate, who states precisely the evidence produced to him, and on that they proceeded to issue their notices; and I am told that, because they made a mistake (if they did make a mistake) as to the effect of certain documents, all that is to go for nothing. Now I was referred to a decision which, I was informed, decided that the word ‘sufficient’ in an Act of Parliament meant prima facie sufficient.
The decision in question is a case of Barraclough v. Greenhough (1867) L. R. 2 Q.B. 612. On turning to that decision I find that, so far from so deciding that the word ‘sufficient’ did not mean sufficient, all that the Judges decided was that in that case it meant sufficient to produce before the jury, the purpose not being expressed, and therefore was prima facie evidence only. But they came to that conclusion, not on the wording of a section like this standing alone, but coupled with another section which stated what evidence should be conclusive in every case.
They contrasted the word ‘conclusive’ used in the one case with the word ‘sufficient’ used in the other, and they came to the conclusion, on a comparison of the two sections, that the word ‘sufficient’ was not used in the sense of ‘conclusive’ as regarded that particular matter-a case, therefore, not necessarily applying to this case, like nineteen out of twenty cases cited on the construction of wills, when on the construction of a certain will, on certain words, Judges have come to the conclusion that those words have a particular meaning; and it is attempted to be proved that similar words not the same words must necessarily have the same meaning in another will. But of course that does not conclude the matter here, because I have now to examine whether, assuming the Plaintiffs to be right that the word ‘sufficient’ is to be taken to be prima facie, the prima facie evidence produced has been completely destroyed.
Now, where an Act of Parliament makes a document prima facie evidence of a fact, those who say it is not a fact at least must prove most clearly the negative;”.
In the submission of Chief Williams when that case was looked at and the principle applied to the interpretation of section 43(3) it meant that if there had been in section 43(3) a full-stop after word “due” then the subsection might be read as making the certificate prima facie evidence but that as there was no full-stop the remaining words of the subsection must be given effect to and result was to show that the certificate was conclusive. He also referred us to Lewis v. Leonard (1880) L. R. 5 Ex. D. 165 in which when dealing with the Bankruptcy Act, 1869 Bramwell L.J. said at page 168:
“I am of opinion that the defendants are entitled to judgment. They have obtained a certificate of discharge. By section 125, subsection 10 that certificate ‘shall have the same effect as an order of discharge given to a bankrupt.’
By section 49 an order of discharge shall be sufficient evidence of the bankruptcy and of the validity of the proceedings thereon’. The words are ‘sufficient evidence’, but there is no doubt that this means ‘conclusive’. The course of anyone complaining of such order, or intended order, or the report of the trustee or certificate under section 125, subsection 10, is to apply to be heard against the making of it; or if made, to get it set aside. It cannot remain in existence and be contested, as proposed in this case.”
Chief Williams then submitted that, if it was accepted that section 43(3) was dealing with conclusive evidence, then it was wholly inconsistent with section 22(1) of the Constitution and no possible use of the blue pencil procedure to cut out offending words in the subsection could be made so as to bring it into conformity with the constitutional requirement that the defendant shall have a fair hearing, as a result of cutting out the offending words would be to leave the legislation in a totally different character to its original form. Chief Williams then went on to argue in the alternative grounds 5 to 7 which read:
“5. Judgment is against the weight of evidence.
- The learned trial judge erred in law in failing to observe that there was no proof of a valid assessment on the defendant.
- The learned trial judge erred in law in failing to observe that Section 43(3) of the Personal Tax Law cannot be relied upon to prove a claim for tax where there is no evidence of a valid assessment on the tax payer.”
He submitted that even if this court accepted the validity of the assessnotice so far as the constitutional point was concerned, nonetheless the onus was on the plaintiff to show that there had been a valid assessthat is to say that the plaintiff must prove both an assessment and service of that assessment on the defendant, and that he failed to do so here and that therefore there was a good defence to the section.
Mallam Uwais the learned solicitor-general of North-Central State for the respondent submitted to us that section 43(3) should not be interpreted so as to read “sufficient evidence” as meaning “conclusive evidence”, but only as being prima facie evidence or in other words as enough evidence if not rebutted for the court to give judgement on it. It did not in his submission in any way prevent the defendant from giving evidence to show that the assessment was invalid. If he was wrong as to this then he conceded that on the basis that the subsection made the assessment conclusive evidence it must be unconstitutional. He referred us to the Board of Inland Revenue v. Joseph Rezcallah and Sons Ltd. [1962] 1 All N.L.R. 1 as showing that an assessment was final and conclusive in respect of chargeable income provided that it was made with jurisdiction, though Chief Williams in reply submitted that that case was of no assistance in interpreting section 43(3) as no constitutional point was ever raised in it.
The learned solicitor-general also referred us to a decision of the High Court of Northern Nigeria sitting in its appellate capacity, namely Ilorin Native Authority v. Ajao (1967) N.M.L.R. 80 as showing that there was a right to deny an assessment under this provision of the Personal Tax Law though in error the court appears to have referred to it as section 42(3) instead of, as it was, section 43(3) when it said at page 82:
“Accordingly we think that after the appellants had produced the certificate in section 42(3) and the respondent had not denied that he had been so assessed the trial court should have entered judgment for the appellants for the amount claimed.”
He also relied on Board of Trade v. Sailing Ship Glenpark [1904] 1 K.B.682 as showing that where under section 193 of the Merchant Shipping Act, 1898 the words “sufficient evidence” were used these only meant that it was conclusive if no other evidence to the contrary was produced to displace it as shown by Romer L.J. when at page 688 he said:
“In the case before us there is, in my opinion, what the statute calls ‘sufficient evidence’ that the expenses were incurred or repaid under the Act, and against the conclusion no evidence is produced for the purpose of displacing it. I therefore come to the conclusion as a matter of fact that the seamen were distressed seamen, and that the expenses incurred are recoverable from the defendants.”And Mathew L.J. on the same page said:
“Without giving any opinion upon the question whether the production of accounts and proof of payment is conclusive evidence that the expenses have been incurred under the Act, there was in this case sufficient evidence to that effect, and that evidence was unanswered. ”
In our view the contention of the learned solicitor-general is right and section 43(3) means no more when it states that the certificate is sufficient evidence of the amount due and sufficient authority for the court to give judgement for that amount than that such evidence is enough evidence, if the defendant does not adduce evidence to rebut it, for the court to give judgment for the plaintiff. It is not estopping the defendant in any way from calling evidence and he is not precluded from calling evidence we see no infringement of the requirement for a fair hearing laid down by section 22(1) of the Constitution. We see no special significance in the final words of section 43(3) namely “and sufficient authority for the court to give judgment for the said amount” which Chief Williams suggested would change the effect of the subsection from making the certificate prima facie evidence to being conclusive evidence-the wording is not new, as Chief Williams implied, as it is to be found in section 67(3) of the former Income Tax Ordinance (Cap. 92 of the Laws of Nigeria, 1948) and so has been in use for many years. We do not think that the use of those words was altering the position so that the court must in any circumstances give judgment for the plaintiff, if a certificate was produced, for the amount there set out as due, it was merely making clear that a court could so give judgment.
The subsection read as a whole in no way estops a defendant from offering evidence to challenge the assessment so that a court was not bound to give judgment on the certificate. The case of Lewis v. Leonard (supra) relied on by Chief Williams is to our mind of a quite different nature to the present one and the finding there that a certificate of discharge which had the effect of an order of discharge in bankruptcy and which was “sufficient evidence” of the bankruptcy was to be treated as conclusive proof of bankruptcy does not mean that we must give the expression in section 40(3) which was of a quite different nature the same construction.
In the present case the defendant saw fit not to adduce evidence but that was a decision taken on his behalf and having made it he cannot be heard to complain now that he was not allowed to present his case. Section 43(3) did not, in our view as we have indicated, preclude him from offering evidence if he wished to do so. We accordingly see no substance in the constitutional point raised in this appeal.
So far as the other three grounds of appeal are concerned which were argued for the appellant we must point out that once a certificate is accepted, as it must be, as not infringing the defendant’s constitutional rights it stands on its own merits and as such in our view it necessarily implies that there was an assessment and that it was validly served as otherwise under the law there would have been no sum due. Thus if it did not carry such implication it could not itself be sufficient evidence for the court to be entitled to give judgment thereon for the plaintiff.
If the defendant wishes to attack the certificate on the basis that there never had been an assessment or that it was not properly served then the onus must rest on him to adduce evidence accordingly and here the defendant having chosen not to do so the certificate stood unrebutted.
We would only add that in the present case quite apart from the certificate the defendant saw fit to put in evidence, when cross-examining the plaintiff’s witness, receipts given to the defendant so clearly the learned Chief Justice would to our mind have been entitled to infer an assessment thereon, had it been necessary for him to do so because such inference was not otherwise available, but as we have already indicated, in our view, it existed from the certificate itself.
We accordingly dismiss the appeal with 30 guineas costs to the respondent.
Other Citation: (1972) LCN/1517(SC)
