Elf Oil Nigeria Limited V. Oyo State Board of Internal Revenue (2002)

LawGlobal-Hub Lead Judgment Report

F. TABAI, J.C.A. 

By an originating summons dated the 17/2/98 issued at the Ibadan Division of the High Court of Oyo State, the Respondent herein claimed against the Appellant herein:

“A. Declaration that by virtue of the combined provisions of section 96 of the Personal Income Tax Decree (PITD) No. 104 of 1993 and Section 28 of Oyo State Internal Revenue Board Amended Edict 1997, the Applicant is empowered to distrain the Respondent of its goods, chattels, land and/or premises, etc, for non-payment of Business Premises Registration/Renewal rates levy and Tax being unremitted deduction in respect of PAYE and W.H.T. under the said law.

B. An order Restraining the Respondent of its goods, chattels, lands, premises, etc. for non-payment of N4,852,319.00 (Four Million Eight Hundred and Fifty-Two Thousand Three Hundred and Nineteen Naira only) being outstanding levy and tax payable by the Respondent to the Applicant under the Business Premises Registration/Renewal Rates, Pay as You Earn (PAYE) deductions and withholding Taxes for the years 1991 -.1996 until the settlement of the tax liability.

C. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The summons was supported, by an affidavit of 17 paragraphs to which were attached exhibits A and B.

To this the Appellant filed a Notice of Preliminary Objection dated 18/3/98 and the grounds for the objection were stated therein to be:

“i. That the Plaintiff’s claim is a statute barred debt by virtue of sections 18 and 24 of the Oyo State Limitation Edict 1989.

ii. That this suit was not initiated by due process of law in that the originating summons through which this action was commenced contains no question or questions for determination by this Honourable Court as required by law.”

On the 20/4/98 arguments were taken on the preliminary objection and the ruling thereon was reserved for the 6/5/98.

In the meantime by an application dated and filed on the 23/4/98 the Respondent sought to amend the originating summons by substituting the sum of N4,852,319.00 claimed with the sum of N3,841.085 and abandoning the sum of N1,011,234.00 representing what it said to be the appellant’s liability for the year 1991. Paragraphs 3 and 4 of the supporting affidavit was that the effect that the claim for N1,011,234.00 for 1991 was statute barred and the sum N3,841,085.00 sought to be substituted for the original sum claim represented the Appellant’s liability from 1992 – 1996. This motion for the amendment of the claim was not taken until the 5/8/98 when the learned trial judge gave his ruling wherein the preliminary objection was dismissed. The present appeal is against that ruling of 5/8/98.

The Notice of Appeal filed at the High Court on the 10/5/98 contained 4 grounds of appeal which without their particulars are as follows:

“1. The learned trial judge erred in law in holding that the cause of action in this case arose in 1996 when the tax liability of the Appellant was actually assessed by the Respondent and not 1991 when the said tax ought to be paid by the Appellant.

2. The learned trial judge erred in law in holding that the paper entitled “Originating Summons” with which this action was filed confirmed with the provisions of Order 6 Rule 3 of the Oyo State High Court (Civil Procedure) Rules 1989.
3. The learned trial judge erred in law in holding that he has jurisdiction to try this case, when –

(a) Jurisdiction on the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal TAXATION has been exclusively vested in the Federal High court by virtue of the Federal High Court Amendment Decree No. 60 of 1991 with effect from 26th August 1993. Therefore Oyo State Internal Revenue Board (Amendment) Edict No. 12 of 1997 which empowers the State High Court to exercise jurisdiction in this case is inconsistent with the said Decree 60 of 1991 and therefore null and void and of no effect whatsoever.

(b) By enacting Edict No. 12 of 1997, the Military Administrator of Oyo State acted ultra vires his legislative powers.

4. The learned trial judge erred in law in holding that he has jurisdiction to try this case when –

(a) Sections 26(5) and 28(3) & (4) of Oyo State Internal Revenue Board (Amendment) Edict No. 12 of 1997 by virtue of which Oyo State High Court derives its power is inconsistent with and or violates sections 220(i) (a)(b) and (c) and 236(1) of the 1979 Constitution as amended and therefore the said Edict is unconstitutional, illegal, null and void and of no effect whatsoever in accordance with the Supreme Court decisions.

(b) The said Oyo State Edict No. 12 of 1997 is repugnant to natural justice, equity and good conscience.”

Based on these grounds of appeal the parties, through their counsel filed and exchanged their briefs of arguments. The Appellant’s Brief of Argument and the reply Brief were settled by ‘Kola Olawoye. While that of the Respondent was settled by L. A. Ganiyu, Legal Officer, Ministry of Justice, Ibadan.

In the Appellant’s Brief of Argument Mr. Olawoye identified the following issues which, in his view, called for determination;-

1. “Whether the claim of the Respondent in this case is statute barred.
2. Whether the originating summons by which this action was commenced is fundamentally defective for non-compliance with the provision of Order 6 Rule 3 of the Oyo State High Court (Civil Procedure) Rules 1988.
3. Whether the Oyo State High Court has jurisdiction to try this case in view of the provisions of section 7(i)(b)(ii) and 8(i) of the Federal High Court Act Cap. 134 Laws of the Federation of Nigeria 1990.
4. Whether the Oyo State Internal Revenue Board (Amendment) Edict No. 12 of 1997 sections 26(5) and 28(3) are inconsistent with sections 220(1)(a)(b)&(c) and 236(1) of the 1979 Constitution as amended.”

On his own part Mr. Ganiyu for the Respondent formulated the following issues for determination in the Respondent’s Brief of Argument:-

“1. Whether or not the action is statute barred.

2. Whether or not the trial Court has jurisdiction.
3. Whether or not the Plaintiff/Respondent’s application for originating summons complied with due process of law.
4. Whether or not the provisions of the Oyo State Internal Revenue Board Amendment Edict No. 12 of 1997 particularly sections 26(5) and 28(3) thereof are inconsistent with the provisions of section 220(1)(a)(b)&(c) and section 236(1) of the 1979 Amended Constitution of the Federal Republic of Nigeria.
5. Whether or not the Defendant/Appellant is allowed by law to raise an issue which she did not raise before the trial for the first time at the Court of Appeal when such issue is not one of jurisdiction.”

In my consideration the Respondent’s issues 1, 2, 3 and 4, apart from differences in phraseology, raise exactly the same questions in the Appellant’s issues 1, 2, 3, and 4 respectively. The Respondent’s 5th issue is only a preliminary point to the question of whether the 4th issue which was not raised in the trial court can, for the first time, be raised in the Court of Appeal. I therefore adopt the Appellant’s four issues. In my attempt to resolve the issues however I shall commence with the preliminary question of the competence of the 4th issue.

ARGUMENTS ON THE ISSUES

On the 1st issue it was the submission of learned counsel for the Appellant that the claim for N4,852,319.00 from 1991 to 1996 is statute barred by virtue of the provisions of sections 83 of the Personal Income Tax Decree No. 104 of 1993 the suit having been instituted on the 17/2/98 a period outside the six years limitation period. It was his further contention that for each assessment year time begins to run from the 1st January to 31st December and that the cause of action arose in 1991 and not 1996 as held by the learned trial judge.

With respect to the 2nd issue, it was contended that the originating summons by which the action was initiated failed to comply with Order 6 Rule 3 of the Oyo State High Court (Civil Procedure) Rules 1988 in that it failed to state an express terms a statement of the questions which determination was sought or direction of the court.

The case, it was contended was therefore not initiated by due process of law and is therefore incompetent and ought to be struck out. For this submission learned counsel relied on ONIFADE V OLAYIWOLA (1990) 7 NWLR (Part 161) 30 at 166-167; ADEHI V ATEGA (1995) 5 NWLR (Part 398) 656 at 666; 7UP BOTTLING CO. LTD. V ABIOLA & SONS LTD. (1995) 3 NWLR (Part 384) 257 at 284; EZENWOSU V NGOMADI (1988) ANLR 581 at 589-590 and OJUKWU V ONYEADOR (1991) 7 NWLR (Part 203) 286 at 321.

As regards the 3rd issue it was the submission of learned counsel for the Appellant that the Oyo State High Court has no jurisdiction to try this case in view of the provisions of sections 7(1)(b)(ii)and 2(1) of the Federal High Court Act Cap. 134, Laws of the Federation of Nigeria 1990 which is in pari material with section 7(1)(c) of Decree 60 of, 1991 by which jurisdiction in causes or matters over the issue of taxation of companies is exclusively reserved for the Federal High Court. Reliance was placed on EFEZUE V MBADUGHA (1984) ANLR 256 at 269 & 270. For the 4th issue the submission of learned counsel for the Appellant is that sections 26(5) and 28(3) of the Oyo State Internal Revenue Board (Amendment) Edict No. 12 of 1997 are inconsistent with the provisions of sections 220(1)(a)(b)&(c) and 236(1) of the 1979 Constitution of the Federal Republic of Nigeria, and are therefore null and void because they are out to derogate from or circumscribe the provisions of the Constitution. For this submission, learned counsel relied on TUKUR V GOVERNOR OF GONGOLA STATE (1988) 1 SC 78 at 82; THE MILITARY GOVERNOR OF ONDO STATE & ANOR. V ADEGOKE ADEWUNMI (1988) 3 NWLR (Part 82) 280; LABIYI V ANRETIOLA (1991) 8 NWLR (Part 258) 139 at 160; EREKU V MIL. GOV. OF MID-WESTERN STATE (1974) ANLR 695 at 706; OSAGIE V OFFOR (1998) 3 NWLR (Part 541) 205 at 212 and OLU OF WARRI V KPEREGBEYI (1994) 4 NWLR

(Part 339) 416 at 439.

Learned counsel for the Respondent on the other hand made the following submissions. On the 1st issue learned counsel submitted that section 83 (1) of the Personal Income. Tax Decree No. 104 of 1993 which says

“Except as otherwise provided in this part of this Decree, no claim for payment of tax shall be allowed unless it is made in writing within 6 years after the end of the year of assessment to which it relates.”

is confined to claim or demand for payment of tax in written form like Exhibit A and does not extend to claim for payment of tax through the institution of a court action as in this case. It was his contention that the section relates to a condition precedent to the institution of an action which is a demand or claim in writing as in, Exhibit A and since Exhibit A was made in 1997 for the 1991-1996 assessment years it was made within by-law after the end of the years of assessment. Learned counsel for the Respondent argued that the provision should be given its ordinary grammatical meaning and relied on AMADI V ESSIEN (1994) 7 NWLR (Part 354) 91 at 98.

On the 2nd issue it was contended that the originating Summons unequivocally states the questions on which the direction of the court was sought and the remedies sought.

As respects the 3rd issue it was contended that by virtue of the provisions in the Schedule to Taxes and Levies (Approved List for ‘Collection) Decree No. 21 of 1998, the following Taxes i.e.

“1. Personal Income Tax in respect of

(a) Pay As You Earn (P.A.Y.E.) and

(b) Direct Taxation (Self Assessment)

2. Withholding Tax (Individuals only)

………………………………………..

7. Business Premises Registration fee in respect of

(a) Urban areas as defined by each State maximum of

(I) N10,000.00 for Registration are to be collected by the State Government. It was further submitted that the Respondent is empowered by section 2(2) of the Personal Income Tax Decree No. 104 of 1993. On the liability of the Appellant with regard to the tax it deducted from its Employees under the PAYE System and the withholding taxes learned counsel relied on sections 40(2) and 81 of the Personal Income Tax Decree No. 104 of 1993. A further submission of learned counsel for the Respondent is that sections 7(1)(b)(ii) 8(1) of the Federal High Court Act Cap. 134 Laws of the Federation of Nigeria 1990 do not apply as the taxes being claimed are not taxes payable by companies but by those payable by the Appellant’s employees i.e. PAYE and withholding taxes.

With regard to the 4th issue it was the submission that sections 26(5) and 28(3) of the Oyo State Internal Revenue Board (Amendment) Edict No. 12 of 1997 are not inconsistent with sections 220(1)(a)(b)&(c) and 236(1) of the 1979 Constitution of the Federal Republic of Nigeria as amended. It was argued that section 26(5) relates to pre-action condition which must be fulfilled before seeking a redress against the assessment of an assessing authority and has nothing to do with appeals to the Court of Appeal. With respect to section 28(3) of the Law it was argued that the provision is normal and consistent with the Rules practice whereby an appellant is required, to

fulfil conditions of appeal and a default of which renders the appeal incompetent.

And on the preliminary question to the 4th issue relevant to the matters in(which is styled 5th issue by the Respondent) it was submitted that since the unconstitutionality of sections 26(5) and 28(3) of the Oyo state Internal Revenue Board (Amendment) Edict No. 12 of 1997 was not raised at the court below, it cannot be raised before this Court without leave of Court particularly having regard to the fact that it is not an issue of jurisdiction. The Respondent relied on ADESOKAN V ADETUNJI (1994) 5 NWLR (Part 346) 540; EJIOFODOMI V OKONKWO (1982) 11 SC 74; ADEGOKE MOTORS V ADESANYA (1989) 3 NWLR (Part 109) 250; AKPENE V BARCLAYS BANK (1972) 1 SC 47; FEDIORA V GBADEBI (1978) 3 SC 219; ABAYE V OFILI (1986) 1 NWLR (Part 15) 134; A-G OYO STATE V FAIRLAKES HOTEL LTD. (1988) 1 NWLR (Part 92) 1 and BAKUWA V THE STATE (1992) 1 NWLR (Part 220) 633.

In the Appellant’s Reply Brief Mr. Femi Jarret Edema submitted that an appellant need not seek and obtain the leave of Court to raise and argue, for the first time in the appellate court, a fresh issue provided the issue involves substantial point of law such as jurisdiction.

And for this submission he relied on HON. EMMANUEL OSELOKA AHAKA V AMBROSE N. EJEAGWU (2001) FWLR (Part 36) 830 at 859 and BANKOLE V PELU (1991) 8 NWLR (part 211) 523 at 542 and 546-547.

I shall now deliberate on the issues all four of which raise questions of jurisdiction and/or competence. The first issue is all about the interpretation of section 83(1) of the Personal Income Tax Decree No. 104 of 1993 which says:

“Except as otherwise provided in this part of this Decree no claim for repayment of tax shall be allowed unless it is made in writing within six years after the end of the year of assessment to which it relates.”

Learned counsel for the Appellant construed the provision to mean a claim through the institution of an action in court as in the present case and argued that the action is by reason of the aforesaid provision statute barred it not having been brought within six years after the end of the 1991 year of assessment. The learned Legal Officer for the Respondent on the other hand argued that the claim in the provision refers to a claim or demand for payment of tax in a written form as in Exhibit A. I do not, with respect agree with the construction given to the provision by counsel for the parties.

Before deliberating on what I consider to be the correct meaning of the provision let me reiterate two principles of construction of statutes which may be relevant to the matters in controversy. The first is that every clause of a statute is to be construed with reference to the con and other clauses of the Act so as, as far as possible to make a consistent enactment of the whole statute. And the second and related principle is that where a statute is divided into parts the ideal approach is to construe the sections in a part in relation to other sections in that part. See SAVANNAH BANK (NIG.) LTD. V AJILO (1989) 1 NWLR (Part 97) 305.

Section 83(1) of the Personal Income Tax Decree No. 104 of 1993 itself comes under part IX of the Decree.

According to the heading of the said part IX its provisions are for the Collection, Recovery and Repayment of Tax.

Section 77 of the Decree makes some provision for the recovery tax through the institution of actions in court.

And sections 82 and 83 appear in my view to provide for tax relief by way of repayment of tax by a tax authority to a taxable person. And for the proper understanding of section 83(1) of the Decree, it should not be read in isolation. Rather the said provision should be read in relation to other provisions especially section 82 under the same Part IX. Section 82(1) of Decree No. 104 of 1993 provides for application in writing by a taxable person who claims to have paid, in error, excessive tax for any particular year of assessment to a tax authority for relief by way of repayment of such excess tax and that such an application should be made not later than six years after the end of the year of assessment. Section 82(2) is to the effect that upon receipt of such an application from a taxable person the relevant tax authority shall, after due enquiry into the matter, grant such relief by way of repayment of tax as appears reasonable and just. And section 83(1) of the Decree as far as I can understand it, only re-enacts specifically an aspect of section 82(1) that no claim or application by a taxable person to a tax authority for such relief by way of repayment of tax as provided in part IX of the Decree shall be allowed unless it is made in writing within six years after the end of the year of assessment to which it relates. The section therefore deals with the application or claim for relief through the repayment of tax by a tax authority to a taxable person who has paid excessive tax in respect of particular year of assessment and has nothing to do either with Instituting an action for the payment of tax or making a demand for payment of tax. I hold therefore that the action is not barred by the provisions of section 83(1) of the Personal Income Tax Decree No. 104 of 1993. In coming to this conclusion I take cognisance also of the word “repayment’ of tax in both sections 82 and 83 of the Decree which in lose terms is synonymous with “refund”.

Although the effect of the Limitation Law of Oyo State 1989 was not raised here it was raised at the court below and since it goes to jurisdiction I can consider same suo motu. It was contended that by reason of the provisions of sections 18 and 24 of the Limitation Law of Oyo state 1989 the action was statute barred. The total amount claimed which is N4,852,319 is for six years of assessment, 1991, 1992, 1993, 1994, 1995 and 1996 and there are therefore six distinct claims, one for each of the years. It is settled law that where an action contain different claims and different causes of action the court has to examine each of the claims for, the purpose of determining whether any of them is caught by the statute of limitation.

See ANWADIKE V ADM-GEN OF ANAMBRA STATE (1996) 7 NWLR (Part 460) 315.

The limitation period is six years and by virtue of the provision of section 15 of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 the year on which the particular event occured is excluded. Having regard to the fact that this summons was issued on the 17/2/98 the claims for the assessment years of 1991 and 1992 appears to me to be caught by the limitation period. I hold therefore that the claims for the 1991 and 1992 are statute barred and same are therefore struck out. The claims for 1993, 1994, 1995 and 1996 survive and the action can proceed to trial on these claims. The first issue therefore partly succeeds.

On the 2nd issue of whether the originating summons is incompetent for non-compliance with Order 6 Rule 3 of the Oyo State High Court (Civil Procedure) Rules, 1988 the said rule states:

“Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceeding begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy.”

In my consideration the two reliefs claimed also embody statements with sufficient particulars of the remedies sought. They also embody statements of the questions on which the plaintiff seeks the determination or direction of the court. There is therefore no substance in the complaint in this second issue and same is accordingly resolved in favour of the Respondent.

With respect to the 3rd issue section 2(2) of the Personal Income Tax Decree No. 104 of 1993 provides –

“In the case of (an) individuals, other than an itinerant worker and persons covered under paragraph (b) of subsection (1) of this section, tax for any year of assessment may be imposed only by the State in which the individual is deemed to be resident for that year under the provisions of the First Schedule to this Decree and in the case of persons referred to in subsection (1) (b) of this Section tax shall be imposed by the Federal Board of Internal Revenue.”

This provision clearly shows that a state is authorised to impose tax on individuals deemed to be resident therein other than those mentioned in paragraph (b) of subsection (1) of Section 2 and itinerant workers.

In support of the originating summons the Respondent filed a 17-paragraph affidavit stating how the Appellant’s liability came about. Paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 are relevant. The said paragraphs say –

“6. That the Respondent is an Oil Marketing Company and an employer of labour who carries on business in Oyo State and therefore entitled to pay its levy in the BPR.

7. That the Respondent as an employer of labour deducts personal income tax from its employees’ monthly salaries for and on behalf of the Oyo State under the PAYE scheme.
8. That the Respondent as obliged under the Personal Income Tax Decree to remit to the State Tax (WHT) on rents, charges, fees, etc.
9. That sometimes between August and September 1997 the Applicant through its Revenue Consultants examined and reviewed the tax records of the Respondents for the years 1991 – 1996.
10. The Respondent was found liable for non/under remittance/payment in respect of PAYE deductions WHT on rents, charges and fees.
11. That Respondent was immediately informed of its tax liability including the BPR and demand notice(s) was/were served on it vide letter(s) of 8/9/97 and 23/10/97 copies herewith attached as Exhibits A and B respectively.
12. That the totality for payment in respect of PAYE deductions and WHT on rents, charged and fees for the years under review is N4,852,319.00.
13. That since the service of the demand Notice of the assessment, the Respondent has neither raised objection nor deemed it fit to settle its liability.”

The Appellant has not filed a counter affidavit to deny any of the averments in the affidavit in support of the summons, and so apart from the effect of the Limitation Law on the claims this appeal has to be considered on the facts as contained in the supporting affidavit.

The result therefore is that there is nothing so far to show that the Respondent is not entitled to the amounts claimed in respect of the 1993, 1994, 1995 and 1996 years of assessment under the Personal Income Tax Decree No. 104 of 1993. Nor is there so far anything to show that the amounts claimed fall within matters under the exclusive jurisdiction of the Federal High Court as provided in sections 7(1)(b)(ii) and 8(1) of the Federal High Court Act Cap. 134 Laws of the Federation of Nigeria 1990. I hold in conclusion therefore that there are so far no materials to establish that the High Court of Oyo State has no jurisdiction to entertain the suit. This issue is therefore also resolved in favour of the Respondent.

For the 4th issue learned counsel for the Respondent submitted that the issue which was not raised at the court below cannot be raised here for the first time without the leave of Court unless it involves the challenge of jurisdiction. On this question JOHN BANKOLE & ORS V. MOJIDU PELU (1991) 8 NWLR (Part 211) 523 cited by F.J. Edema is apposite.

An appellant would not be allowed, as a general principle, to raise a fresh issue for the first time in the Appellate Court without the leave of Court. But where the issue so raised for the first time in the appellate court involves substantial point of law substantive and procedural and no further evidence need be adduced which will affect the decision on it, it can be taken in order to prevent an obvious miscarriage of justice. See also A-G OYO STATE V FAIRLAKES HOTEL LTD. (1988) 5 NWLR (Part 92) 1.

The issue raised here is the unconstitutionality of the provisions of the Oyo State Internal Revenue Board (Amendment) Edict No. 12 1997 and there is in my view a very substantial point of law that can be raised at any stage without leave of court.The preliminary objection was therefore misconceived and is accordingly rejected.

With respect to the 4th issue itself, it is settled law that any law of a State which is inconsistent with a provision of the Constitution or even with a provision of a Federal Act is void to the extent of its inconsistency. See THE MILITARY GOVERNOR ONDO STATE & ANOR. V VICTOR ADEGOKE ADEWUMI (1988) 3 NWLR (Part 82) 280; DOKUN AJAYI LABIYI V ALHAJI MUSTAPHA M. ANRETIOLA & ORS. (1992) 8 NWLR (Part 258) 139; OLU OF WARRI V KPEREGBEYI (1994) 4 NWLR (Part 339) 416. In CHIEF S. C. OSAGIE II & ANOR. V CHIEF EUGENE C. OFFOR & ANOR. (1998) 3 NWLR (Part 541) 205 the Supreme Court agreed with and adopted the opinion of the Court of Appeal on the said opinion reproduced at page 212 of the Report says in part “A decision that it delays the right of an aggrieved party to come to court, or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under section 236(1) of the Constitution and to that extent it is void and of no effect….”

See also PEENOK INVESTMENT LTD. V HOTEL PRESIDENTIAL LTD. (1983) 4 NCLR 122; ADAMOLEKUN V COUNCIL, UNIVERSITY OF IBADAN (1968) NMLR 253 and HAJIYA MAIKO V USMAN LAUSHI (1993) 4 NWLR (Part 288) 423.Section 26(5) of the OYO STATE INTERNAL REVENUE BOARD (AMENDMENT) EDICT NO. 12 of 1997 says –

“Any person aggrieved by the assessment of the Board or its agents may institute action for redress in the court established under sub-section (4) of this section but such an aggrieved person shall deposit in the court in addition to filing fees an amount equal to one-quarter to the assessment before the court can hear the compliant.”

And section 28(3) of the Edict says –

“No appeal shall be against the final or interlocutory decision of the court, until the appellant has deposited in the court a total amount (including the amount deposited in court by virtue of section 26(5) of this Edict) equal to one half of the assessed liability or judgment of the court.”

There is no doubt that each of the provisions constitutes a clog in the aggrieved person’s exercise of his rights under the Constitution.

Section 26(5) of the Edict constitutes a rather harsh condition precedent (outside the Rules of Court) to an aggrieved person’s right to seek redress in a court of law and thus an impediment to his rights under the Constitution. And section 28(3) of the Edict is to the same inhibiting effect with regard to the aggrieved person’s right of appeal.

The provisions in question are a restriction or derogation from the aggrieved person’s constitutional rights of action and appeal and to that extent they are, in my consideration, inconsistent with the provisions of the Constitution. I therefore agree with learned counsel for the appellant and hold that the provisions are null and void for inconsistency with the Constitution. The 4th issue is accordingly resolved in favour of the appellant. The resolution of this issue in favour of the appellant does not however affect the outcome of the appeal as none of the provisions was applied or sought to be applied either at the court below or in the appeal before this Court.

In conclusion I hold that in view of the partial success of the appeal on the first issue the appeal partly succeeds. The claims in respect of the 1991 and 1992 assessment years having been caught by the Statute of Limitation are statute barred and are accordingly struck out. The claims in respect of the 1993, 1994, 1995 and 1996 years of assessment are not so caught by the Limitation Law and therefore survive. The action can therefore be tried on the claims for 1993, 1994, 1995 and 1996 assessment years.

Having regard to the fact that the appeal only partly succeeds

I make no orders as to costs.

---

Other Citations: 2002)LCN/1147(CA)