Federal Board Of Inland Revenue V. Independent National Electoral Commission (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The case now on appeal was commenced by Originating Summons by (i) Federal Board of Inland Revenue and (2) Attorney-General, of the Federation as 1st and 2nd Plaintiffs respectively, against the Independent National Electoral Commission (hereinafter simply referred to as “INEC”) as Defendant. The 1st Plaintiff later brought an application praying for an Order striking out the name of the 2nd Plaintiff from the suit. The instant appeal has been lodged by the sale Plaintiff – Federal Board of Inland Revenue (hereinafter simply referred to as “the Appellant”) against the judgment delivered on 3rd April, 2007 in the case by Hon, Justice Binta Muritala Nyako of the Federal High Court, Abuja Division, dismissing the said Appellant’s claims, The Federal High Court will hereinafter be simply referred to as “the lower court”.

Five questions were posed for the determination of the lower court in the Originating Summons dated 28/2/2007 and which has a supporting affidavit deposed to by one Femi Edgal on the same 28/2/2007. The questions are:-

“(i) whether in the light of the provisions of-

(a) Section 137(1)(j)of the Constitution of the Federal Republic of Nigeria, 1999

(b) Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria; 1999;

(c) Section 66(1)(1) of the Constitution of the Federal Republic of Nigeria; 1999;

(d) Section 107(1)(i) of the Constitution of the Federal Republic of Nigeria; 1999;

(e) Section (1)(1) (sic) and (1)(3) (sic) of the Constitution of the Federal Republic of Nigeria; 1999, the Federal Inland Revenue Service, of the Federal Board of Inland Revenue ought not to ascertain the genuiness (sic) and the adequacy of tax paid contained in the Tax Clearance Certificates submitted by candidates seeking election and appointment into public offices to the Defendant.

(ii) whether a community reading of Section 24(1) of the Constitution of the Federal Republic of Nigeria 1999 and items 59 and 60(a) of the Second Schedule to the said Constitution does not confer on the Defendant an obligation to forward to the appropriate and lawful agency all matters connected with the authenticity of the Tax Clearance Certificate submitted by every citizen including aspiring political holders;

(iii) whether by virtue of the provision of Section 48(4) of the Personal Income Tax Act, CAP P8 Laws of the Federation of Nigeria, that the Plaintiffs are not entitled by notice to the Defendant to request the delivery to the 1st Plaintiff of information, including a name and address of any individual within the time limited by the notice, concerning any information in respect of the income or personal circumstances of the said individual.

(iv) whether by virtue of the provisions of Section 85(2), (3) and 4(s) of the Personal Income Tax Act CAP P8, Laws of the Federation of Nigeria, 2004 (the Act) the Defendant is not under a legal obligation to demand from a person seeking appointment or election into public office a Tax Clearance Certificate for the three years immediately preceding the current year of assessment; and

(v) whether in view of the provisions of Section 85(2), (3) and (4) of the Act, the 1st Plaintiff or any other relevant authority, as defined in the Act, is not under a legal duty to verify Tax Clearance Certificates submitted to the Defendant for appointment or election into public office to enable the 1st Plaintiff or any other relevant authority ascertain their validity, genuineness (sic) and adequacy of tax paid.”

The reliefs sought in the Originating Summons given the questions posed for the determination of the lower court are:-

“i. A DECLARATION that the conditions for eligibility to stand for election is as prescribed by the Constitution of the Federal Republic of Nigeria, 1999.

ii. A DECLARATION that the Plaintiffs can competently request for and ascertain the validity and genuiness (sic) of Tax Clearance Certificates submitted to the Defendant by persons aspiring to stand for elective offices.

iii. A DECLARATION that the submission of Tax Clearance Certificate is a sine qua non for persons standing for election into elective offices.

iv. An ORDER compelling the Defendant to forward the Tax Clearance Certificates submitted to it by persons standing for elective offices to the Plaintiff for verification of their genuiness (sic), validity and adequacy of tax paid.”

The lower court in its judgment identified the issue before it, not to be a question of false tax declaration or nonpayment of tax nor of tax evasion or avoiding tax or even nonpayment of tax, nor under or over assessment of tax or wrong assessment of tax; but as being a matter of requirement for eligibility to contest election or the disqualification from contesting election. The lower court made the observation that the Plaintiff (now Appellant) did not respond to the serious depositions made in the Defendant’s (now Respondent) counter affidavit. The serious depositions are to the effect that the Respondent neither asked for nor received tax clearance certificates from candidates and as such has no certificate to forward to the Appellant as requested and that the Respondent does not need the presence of the Appellant at the screening of candidates because tax clearance certificate is not a requirement under the 1999 Constitution or Electoral Act. Given the observation and the lower court having stated that tax clearance is not one of the requirements for contesting election and that the Appellant’s cause of action may lie elsewhere but not in participating in screening of candidates, held that the Appellant had failed to establish its claims and accordingly dismissed the case.

The Plaintiff (now Appellant) being dissatisfied with the judgment of the lower court; lodged an appeal against the same by a Notice of Appeal dated 12/6/2007 and filed on the same day. The Notice of Appeal contains three grounds of appeal. The said grounds of appeal without their particulars read thus:-

“GROUND ONE

The Learned trial Judge erred in law by holding solely that the issue before the Court is a matter of the requirement for eligibility to contest election or the disqualification from contesting election and is not a question of false tax declaration or non payment (sic) of tax nor tax evasion or avoiding tax or even non payment (sic) of tax nor under or over assessment of tax or wrong assessment of tax.

GROUND TWO

The Learned trial Judge erred in law by holding that failure of the Appellant to reply to the averments contained in the Respondent’s Counter Affidavit to the extent that the Respondent neither asked for nor received tax clearance certificate from candidates and as such had no certificate to forward to the Appellant, constituted a serious omission that swayed Judgment in the Respondent’s favour.

GROUND THREE

The Learned trial Judge erred in law by holding as follows:

“The Plaintiff’s cause of action may lie elsewhere but not in the participating in screening candidates for election.”

In compliance with the Rules of this Court, parties duly filed and exchanged briefs of arguments. Appellant’s brief of argument dated 7/9/2007 but deemed as properly filed and served on 1/11/2007 as well as Appellant’s Reply brief deemed to have been properly filed and served on 30/4/2009 were settled by M.A. Lashmann (Mrs.) while the Respondent’s brief of argument dated 14/1/2008 but deemed as properly filed and served on 23/10/2008 was settled by Oluwole Osaze-Uzzi.

The appeal was entertained on 22/10/2009. Gabriel A. Fan, learned counsel for the Appellant relied on and adopted Appellant’s brief of argument and Appellant’s Reply brief as his argument in the appeal. He urged the Court to allow the appeal.

O. Osaze-Uzzi learned lead counsel for the Respondent likewise relied on and adopted the Respondent’s brief of argument as his argument in the appeal. He also submitted that the Appellant’s Reply brief did not comply with the provisions of the Rules of this Court relating to Reply brief He urged the Court to dismiss the appeal.

The Issues formulated for the determination of the appeal in the Appellant’s brief of argument read thus:-

“(1) Whether the Lower Court did justice to the issues before it, by refusing to give judicial interpretation to the weighty issues of law brought before it?

(2) Whether indeed the failure of the Appellant to respond to facts in the Counter Affidavit of the Respondent which facts are already addressed in some other processes was fatal to the entire case of the Appellant?

(3) Whether the Appellant’s case indeed lacked a cause of action before the lower Court?”

The two Issues formulated for the determination of the appeal in the Respondent’s brief of argument read:-

“(i) Whether the Appellant’s case at the lower Court disclosed a reasonable cause of action;

(ii) Whether the production of tax clearance certificate is a constitutional requirement for persons seeking elective Offices under the 1999 Constitution of the Federal Republic of Nigeria.”

The appeal will be determined upon the Issues formulated in the Appellant’s brief of argument as a consideration of the said Issues will necessary lead to the consideration of the two Issues formulated in the Respondent’s brief of argument.

ISSUE 1

The Appellant in dwelling on this Issue, referred to the questions posed for the determination of the lower court in the Originating Summons; the affidavit in support; and the reliefs sought; and submitted to the effect that the lower court failed to give consideration to the issues brought before it for its interpretation. In this regard the Appellant said that it is charged with the responsibility of administering matters pertaining to taxation and is entitled to ascertain or verify the genuineness of the tax clearance certificates submitted to the Respondent by persons seeking election into public offices. That it was in furtherance of this responsibility that it (i.e. Appellant) wrote to the Respondent requesting that copies of the tax clearance certificates submitted by persons seeking election should be forwarded to it. The request made of the Respondent, the Appellant further said was to enable it verify the validity of the tax clearance certificates and the adequacy of the taxes paid. The Appellant accused the lower court of not giving a judicial interpretation to the questions raised, and which questions relate to its (i.e. Appellant’s) constitutional and statutory responsibility and the obligations of persons seeking election into public offices to pay their taxes as well as the role of the Respondent to make available the tax clearance certificates which the Respondent is obligated by law to collect and forward the same to it (i.e. Appellant) for verification and ascertainment of the adequacy of the taxes paid.

The Appellant said that the case of the Respondent as disclosed in its counter affidavit on the other hand is that the payment or presentation of tax clearance certificate is not contained in the Constitution or Electoral Act. In the light of this, the Respondent said it did not request aspirants or candidates seeking election into public offices to produce evidence of tax payments or tax clearance certificates.

Appellant referred to Section 85(2), (3) and (4)(s) of the Personal Income Tax Act (hereinafter simply referred to as “PITA”), an Act of the National Assembly as providing for the categories of persons to pay taxes, and that persons seeking election into public offices fall within the categories and are required to tender their tax clearance certificates. The provisions of the above cited Act the Appellant further said and those of Sections 66(1)(i), and 65(2)(a) of the Constitution were brought to the attention of the lower court but the said court failed to give judicial interpretation to them. The Appellant contended that the lower court in the circumstance did not do justice to all the issues brought before it irrespective of its (Appellant’s) failure to specifically controvert the deposition in the Respondent’s counter affidavit to the effect that it (i.e. Respondent) did not request nor collect tax clearance certificates from persons seeking elective positions in the last general elections.

Appellant submitted that the case of OGBEIDE V. OSULA and MUSA V. INEC decisions of this Court referred to in this case at the lower court ought to have been used by the said court as reliable precedents to guide it in reaching a decision on the matter but that the lower court did not adequately consider the cases before dismissing the Appellant’s case. The fact that this Court opined in the Ogbeide’s case that “if there were any complaint about tax clearance, it would be properly from the Appellant or the Respondent” the Appellant submitted clearly gives it (i.e. Appellant) a cause of action and therefore locus standi in the matter. The case of Musa v. INEC on the other hand was relied on to show that the lower court did not heed to the advice of this Court as it relates to the interpretation of constitutional provision. Stating that a court of justice can even suo motu raise issues that will assist it in meeting the justice of a case (so long as parties are invited to address it on the issues), the Appellant accused the lower court of been clearly disinterested in giving a review on issues bordering on revenue of Government and which issues are directly under its jurisdictional purview even when raised by a party. That in the circumstances justice cannot be said to have been done. This Court was strongly and humbly urged to ensure that issues left undetermined by the lower court received its review.

ISSUE 2

Dwelling on this Issue the Appellant said that the lower court placed so much emphasis on the fact that it (i.e. Appellant) did not respond to the facts in the Respondent’s counter affidavit to wit, (i) that the Respondent did not request for or obtain tax clearance certificates from candidates and as such has no such certificates to forward to the Appellant as requested; and (ii) that the presence of the Appellant is not required at the screening of candidates because tax clearance certificate is not a requirement under the Constitution. It is the contention of the Appellant that its case is larger in scope than the narrow issue as to whether the Respondent requested for, or received tax clearance certificates. The Appellant said that its case fundamentally rested on the provision of Section 24(f) of the Constitution which though ordinarily unenforceable has been made enforceable by virtue of Section 85(4) (s) of PITA. The provision of this section the Appellant said requires an agency of Government such as the Respondent to mandatorily demand for the tax clearance certificate for three years immediately preceding the current year of assessment from persons seeking election into public office. The Appellant submitted to the effect that it did not have to respond to the counter affidavit of the Respondent as the said Respondent had a duty under the PITA to demand for tax clearance certificates. The issue the Appellant said is one of law and not fact. It was submitted by the Appellant that it could not controvert the depositions in question as an affidavit by the strict provisions of the Evidence Act is to contain facts and not law or legal arguments. The Appellant submitted that its failure to controvert to the facts deposed to by the Respondent was not fatal in the circumstances. That the lower court failed to adequately review the facts and law before dismissing the suit. The case of Egwunewu v. Ejeagwu (2001) 8 All FWLR ratio 7 (re-produced as cited by the Appellant) was cited as requiring a court to consider all issues joined by the parties and raised before it for determination. The case of Ogoejeofo v. Ogoejeofo (2006) All FWLR ratio 2 was cited in aid of the submission that the unchallenged and uncontroverted facts deemed admitted in an affidavit of a party must be capable of proving and supporting the party’s case.

ISSUE 3

This Issue deals with whether the Appellant’s case indeed lacked a cause of action. Dwelling on the Issue the Appellant said to the effect that it never sought for an order or orders to be part of the screening of candidates given the five questions posed for the determination of the lower court. That that Issue was raised in the letters to the Respondent and duly exhibited to show that the Respondent refused the request to submit tax clearance certificates. The Appellant further said that it was therefore strange that the lower court was fixated by that particular Issue and was completely oblivious to all the questions begging for its consideration and the claims before it.

It is the submission of the Appellant that it has a cause of action in the instant case as can be gleaned from its processes before the lower court. The Appellant said that cause of action which is sometimes referred to as a right of action is very straightforward in law.

The Appellant said that it has been endowed with powers under relevant legislations to ensure that tax is paid, collected and properly accounted for given its onerous responsibility of collecting revenues from taxes for the running of all tiers of Government. That the Appellant is the agency with rights and obligations to enforce the tax laws, and approached the lower court for the interpretation of relevant laws to enable it performs its duties. The Appellant asked what else can confer a cause of action.

Appellant said that the judgment of the lower court left much to be desired. This is because it is not very clear therefrom that the said court agreed with the clear case set up by the Respondent that the Appellant had no cause of action.

Cause of action according to the Appellant is not designed to exclude litigants from bringing their legitimate claims before a court of law; it is designed to streamline actions that come before the courts with a view to ensuring that the court’s time is not wasted. It is the submission of the Appellant that for an action to have a cause of action, it must have substance, in that there must be an issue or issues bordering on the rights and obligations of parties or even on a substantial issue of law. The case of SPDC (NIG) LTD V. X.M. FED. LTD (2006) 16 NWLR, Part 1004, page 189 at 192 was cited on the meaning of cause of action. It is submitted by the Appellant that the legal issues especially those bordering on the obligation of citizens, including political office holders to pay tax and therefore submit tax clearance certificates as provided under Section 24(f) of the 1999 Constitution and Section 85(4)(s) of PITA; the responsibility of the Respondent to abide by and observe an Act of the National Assembly and the responsibility of the Appellant to ensure that taxes are paid and duly accounted for; are weighty issues of law that clothed the Appellant’s claims with a cause of action. That the questions of law brought before the lower court, clearly gave the Appellant a right to relief in law or equity. Appellant cited the case of NICON Insurance Corporation v. Olowofoyeku (2006) 5 NWLR part 973 page 244 at 248 as deciding that for a claim not to disclose a cause of action, it must be such that nobody can understand the claim he is supposed to meet. That such claim must be unsustainable or unarguable or inconsistently bad. The Appellant submitted that its case is not only sustainable but was consistent and arguable.

Issue 1 in the Respondent’s brief of argument relates to Appellant’s Issue 3. Dwelling on the Issue as to whether or not the Appellant’s case at the lower court discloses a reasonable cause of action the Respondent cited the case of Udoh v. Abere & Anor 6 NSCQR 579 at 590 on the meaning of cause of action and accrual of cause of action. It is submitted by the Respondent that the Appellant’s case at the lower court was predicated upon its (i.e. Respondent’s) refusal to act or allow the representative of the Joint Tax Board to screen the tax clearance certificates of candidates for the 2007 General Elections as evinced by Exhibits “A” and “B”, According to the Respondent, there is a world of difference between the Appellant and the Joint Tax Board (hereinafter simply referred to as “JTB”), That the Appellant and the JTB are two separate legal entities as Section 86(1) of the PITA created the JTB and spelt out its composition, which includes the Chairman of the Appellant. The Respondent said its case is that it is the JTB, if anybody at all has the right to complain, that can so complain and not the Appellant which is a separate and distinct legal entity, The Respondent pointed out that it was the JTB that made Exhibits “A” and “B” and not the Appellant.

It is also the submission of the Respondent that Exhibits “A” and “B” do not constitute the notice to be given by the JTB or the Appellant as envisaged by Section 48(4) of PITA. In the premises, the Respondent submitted that no reasonable cause of action was disclosed against it by the Appellant and that the Appellant was therefore not entitled to the reliefs sought.

It is submitted by the Respondent that for the Appellant to disclose that it has a good cause of action, the Appellant must show that: –

(1) it has the legal power to demand tax clearance certificates from candidates and the Respondent;

(2) it did in fact make such a demand as required by law;

(3) the Respondent was under a duty and did in fact demand tax clearance certificates from candidates,

(4) notice, pursuant to section 48(4) of PITA was given to the Respondent and that the Respondent has information on the “personal circumstances” of all candidates in its possession, and;

(5) the Respondent has failed to comply with such statutory notice.

The Respondent said that it is clear on the faces of Exhibits “A” and “B” which the Appellant relies on, that they both emanate from the JTB and not the Appellant and that the relationship between the two entities is only that the Chairman of the Appellant is also the Chairman of the JTB. The Respondent referred to Section 86(9) of PITA as spelling out the power and functions of the JTB and that these do not include the power to demand for tax clearance certificates or to collect taxes or assess the adequacy of taxes paid.

These according to the Respondent are functions and within the powers of the State Board of Internal Revenue vide Sections 87 and 88 of PITA. The State Boards the Respondent stressed are totally different entities from the Appellant and the JTB.

Dwelling on Exhibit “A” the Respondent said the JTB therein requested to be part of its (i.e. Respondent’s) Screening Committees specifically to verify the genuineness and adequacy of the details of tax paid as shown in the tax clearance certificates forwarded to by political office aspirants. That in Exhibit “B”, the JTB wanted the tax clearance certificate to proffer information as to the genuineness or otherwise of the said certificates while the notice envisaged by Section 48(4) of the PITA is for the purpose of obtaining the “income or personal circumstances of an individual”. The Respondent said the Appellant has not shown that it is in a position to provide such personal information envisaged in Section 48(4) of PITA on the income or personal circumstances of the candidates. That on the contrary, it (i.e. Respondent) by Exhibit “c” specifically deposed that it is not in a position to do so and that the deposition to that effect was not controverted and remained unchallenged as held by the lower court. In the circumstances the Respondent submitted that the lower court was right in dismissing the Appellant’s claim as it failed to show any of the criteria earlier stated above. The lower court the Respondent said was not misled by the description of the “Federal Inland Revenue Service of the Federal Board of Inland Revenue” as neither of the two bodies has the power to sustain the claim, the same being incompetent for non-disclosure of a reasonable cause of action. The case of Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 was cited in aid.

Saying that even if it were conceded that a cause of action was disclosed the Respondent still submitted that it was not the Appellant that can call for adjudication on the issue. That the proper parties are not before the Court as the right to make the request does not lie with the Appellant but the State Tax Board. Furthermore, it is the submission of the Respondent that the Appellant never made any demand but that it was the JTB that did and not the Appellant which has no power under the law to do so. That as the proper parties are not before the court, the case is incompetent and that the Appellant lacks the locus standi to request for adjudication. The case of Oloriode v. Oyebi (1984) 1 NCLR 390 was cited in aid. The case of A-G, Anambra v. A-G, Federation (2005) 9 NWLR (Pt. 931) 572 was also cited as showing that only a person whose activities have been directly interfered with, has sufficient interest to sustain a claim. The case of Plateau State v. A-G Federation (2006) 3 NWLR (Pt. 967) 346 was cited in aid of the submission that the instant action in the absence of a necessary party is incompetent. Finally, the Respondent submitted that it will be inequitable to make the orders and declarations sought by the Appellant because they have become incapable of enforcement as the uncontroverted and unchallenged evidence is that the Respondent did not ask for or collect tax clearance certificates. The case of Bisimillahi v. Yagba East LG (2003) 4 NWLR (Pt. 810) 329 at 366 was cited in aid.

The Respondent under its Issue 2 dealt with the question as to whether the production of tax clearance certificate is a constitutional requirement for persons seeking elective office under the 1999 Constitution. Dwelling on the Issue, the Respondent referred to Sections 65 and 66; 106 and 107; 131 and 137; and 177 and 182 of the Constitution as stipulating the requirements in respect of elections into the National Assembly; States Assemblies; office of President; and office of Governor; respectively. The provisions of these sections which the Respondents said are exhaustive, it was submitted do not provide for the requirement of production of tax clearance certificate or evidence of payment of tax before one can contest for election. The Respondent while conceding that Section 24 of the Constitution indeed provides for the honest declaration of income and prompt payment of taxes by citizens, however submitted that the provision of the said section is not justiciable. Citing Section 6(6)(c) of the Constitution and relying also on the case of SPDC v. X.M. Fed Ltd (supra) equally relied upon by the Appellant, the Respondent submitted that this case having regard to relevant constitutional provisions is not one in which the court can invoke its judicial powers. That the case is therefore unsustainable and unarguable thereby disclosing no cause of action. The case of NICON v. Olowofoyeku (supra) was cited in aid.

It is also the submission of the Respondent that as the Constitution has made adequate and exhaustive provisions for qualification and disqualification of candidates, no law of the National Assembly can take away or add to the said requirements and that where any such law seeks to do this, the said law to that extent will be void. The cases of A-G, Abia v, A-G Federation (2002) 6 NWLR (Pt. 763) 264; and Balarabe Musa v. INEC (Pt. 806) 72 were cited in aid. The Respondent also relied on the maxims – the mention of one thing expressly ends the possibility that something else is implied; and conversely to express one thing is implied to exclude the other as enunciated in the case of A-G, Abia v. A-G Federation (supra) to buttress its submissions that the presentation of tax clearance certificate or evidence of payment of tax is not a constitutional requirement. Again the Respondent submitted that as Section 24 of the Constitution and/or Section 85 of PITA did not state that noncompliance affects the qualification or disqualification of persons seeking public office, it follows that framers of the enactments did not intend this. That if they had, it would have been expressly stated. This Court was urged to abide by its decision in the Ogbeide case as it is good law and consistent with the clear provisions of the Constitution. To further buttress the submission that the framers of the Constitution did not intend the presentation of tax clearance certificate or evidence of payment of tax to be a qualifying or disqualifying factor as was the case in previous enactments, the Respondent cited the case of FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361 at 406 and 436. It was submitted that reference by the Appellant to PITA and its requirements, when the Constitution has already covered the field is tantamount to subjecting or subordinating the Constitution to an Act of National Assembly which is an indignity. Parties and the courts the Respondent said are bound by the clear provisions of the Constitution and are enjoined to give effect to the same as none of them can amend it to include what it does not require. The case of Bendel State v. The Federation (1981) 10 SC 1 at 131 was cited in aid.

As earlier stated in this Judgment, the Appellant filed a Reply Brief in response to the Respondent’s brief of argument. Learned lead counsel for the Respondent objected to the said Reply Brief at the hearing of the appeal. He said that it did not comply with the provisions of the Rules of this Court in relation to Reply Briefs.

It is no doubt clear from the Rules of this Court and a plethora of decided cases on the matter that an Appellant does not have an unbridled right to file a Reply Brief in an appeal. In this regard see Order 17 Rule 5 of the 2007 Rules of this Court which provides thus:-

“The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief’.

See also the case of MOZIE V. MBAMALU (2006) All FWLR (Pt. 341) 1200 at page 1220 where the Supreme Court dwelling on Reply Brief said per Tobi, JSC; thus:-

“It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or argument raised in a respondent’s brief calls for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”

In the Appellant’s Reply Brief, it is alleged that the Respondent raised new issues in its brief of argument. The Appellant’s Reply Brief is said to be in response to the said new issues and the Appellant identified the following issues as arising from the Respondent’s Brief of argument:-

1, Whether the Plaintiff/Appellant was rightly adjudged to lack a Cause of Action;

2. Whether the Trial Court was judicially obliged to pronounce on the merit of the Originating Summons;

3. Whether the leave of Court was required by the Respondent to raise issues and arguments that did not form part of the trial at the Lower Court.

4. Whether the reliefs sought in the Originating Summons ought to be granted to the Plaintiff/Appellant.

In the Appellant’s written address before the lower court at pages 20 – 39 of the Records five issues were formulated for the determination of the court. The issues are the same as the questions posed for the determination of the lower court in the Originating Summons and which questions had earlier been re-produced in this Judgment.

The counter affidavit filed by the Respondent in response to the supporting affidavit of the Originating Summons is at pages 44 – 45 of the Records. Therein, the Respondent apart denying that the depositions in paragraphs 7, 9, 10 and 11 of the supporting affidavit are false and/or misleading, deposed to the effect that the payment of tax or presentation of tax clearance certificate are not part of the requirement for qualification or disqualification of candidates under the 1999 Constitution or Electoral Act. The Respondent further deposed to the effect that it did not request for evidence of the payment of tax or tax clearance certificates from aspirants and that it collected nothing of such from the said candidates. The Respondent’s written address before the lower court is at pages 47 – 51 of the Records. Therein the issues raised for the determination of the lower court in the action and which were duly argued are:-

“ISSUE 1: Competency of the Action

(a) Does the Plaintiff have the requisite locus standi to initiate or prosecute this action?

(b) Does the action disclose a reasonable cause of action?

ISSUE 2: Requirement of Tax Clearance Certificates by Candidates

Is the production of Tax Clearance Certificate a requirement for persons seeking elective offices?”

The arguments of the Respondent in respect of the competence of the Appellant’s action are at pages 48 – 49 of the Records. It is trite law that the Issues of locus standi and whether an action discloses a reasonable cause of action as raised by the Respondent before the lower court in Issue 1, are determined upon the case of the initiator of an action in its/his Originating process and never upon the process filed by the party defending the action. Both issues of locus standi and whether an action discloses a reasonable cause of action, question the competence of a court to entertain the action before it on the merit.

Locus standi is the legal capacity of the party suing to institute the action in a court of law. The issue of locus standi is a jurisdictional matter as the court will have no jurisdiction to entertain the matter if the party suing has no legal standing/capacity to sue. See AJILOWURA V. DISU & ORS [2006] All FWLR (Pt. 333) 1613. The question of legal capacity to sue equally questions the proper constitution of an action. Complaints about the competence and proper constitution of an action raise the issue of jurisdiction of the trial court and ought to be decided first since judgment of the court delivered in an action in respect of which it lacks jurisdiction amounts to a nullity. See OFIA & ORS V. EJEM & ORS (2006) All FWLR (Pt. 324) 1816.

Before the lower court, the Appellant filed a Reply to the Address of the Respondent. The said Address is at pages 52 – 58 of the Records. Therein the Appellant extensively responded to Issue 1 formulated by the Respondent in its written address. I am of the considered view that the allegation by the Appellant in its Reply Brief filed in the instant appeal that the Respondent raised new issues in its brief of argument and particularly that the issue or argument raised by the Respondent in the last two paragraphs of its brief did not form part of its case before the lower court and that the Respondent therefore required to have first obtained the leave of this Court to raise the same in this appeal, is glaringly incorrect. Indeed the firm impression I have after reading the Reply Brief of the Appellant is that what the Appellant has engaged in is a re-argument of the issues already argued in its brief of argument. And for this purpose has formulated the issues set out in the said Reply Brief to justify the re-argument it engaged in. This is aside from the fact that the argument put up in the said Reply Brief are mostly repetitive of argument already canvassed in the Appellant’s brief of argument.

From all that has been said, I find the objection of the Respondent to the Appellant’s Reply Brief to be well founded. The same is hereby discountenanced.

I will start with the consideration of Appellant’s Issue 3 which poses the question as to whether the Appellant’s case indeed lacks a cause of action. This is because of the jurisdictional nature of the Issue.

“A cause of action” has been defined as fact or combination of facts which give rise to a right to sue. See ELABANJO V. DAWODU (2006) All FWLR Pt. 328 6004 at 644. “Cause of action” includes all things which are necessary to give a right of action and every material fact that has to be proved to entitle the plaintiff to succeed. See P.N. UDDOH TRADING CO. LTD V. ABERE 2001 FWLR (Pt. 57) 900. And it is from the processes of the initiator of an action that the court resolves the issue of “cause of action” when challenged, and when it accrued. See ADEBIYI V. KOLAWOLE (2008) All FWLR (pt. 428) 234.

It is also to be appreciated that there is a difference between “cause of action” and “right of action”. “Cause of action” as earlier said is the fact or facts which establish or give rise to a “right of action”. It is the factual situation which gives a person a right to judicial relief. A “right of action” is the right to enforce a “cause of action”. In other words, a “cause of action” is the operative fact or facts (i.e. the factual situation) which give rise to a right of action” which itself is a remedial right. See ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) All FWLR (Pt.434) 1452.

It would appear clear from the above authorities that it is for a plaintiff to plead all relevant facts that not only show his right of action but also his entitlement to the remedy or reliefs that he seeks in the action.

The instant case as already stated was commenced by Originating Summons in which the questions posed for the determination of the lower court and reliefs sought were set out. It is not from this process that the cause of action of the Appellant is to be determined. The factual situation upon which the questions posed for the determination of the lower court and the reliefs sought from the said court are to be presented in the supporting affidavit of the Originating Summons. If the factual situation presented in the supporting affidavit of the Originating Summons do not support the questions posed for the determination of the court, then it cannot be said that the Appellant has disclosed a cause of action talk less of a reasonable cause of action,

The supporting affidavit of the Originating Summons is at pages 6 – 8 of the Records. The said affidavit as earlier stated was deposed to by one Femi Edgal. Therein he deposed to the effect:-

1. that the Appellant is the body charged with the due administration of matters pertaining to taxation in the Federal Republic of Nigeria.

2. that it is imperative for the Appellant to ascertain or verify the genuineness of the tax clearance certificates submitted to the Respondent by persons seeking election into public office.

3. that by a letter dated 12/12/2006, the Chairman to the Appellant requested the Respondent to include authorized representatives or officials of the Appellant as members of the Respondent’s Screening Committees both at the State and Federal levels.

4. that when no response was received from the Respondent the Appellant wrote another letter dated 11/1/2007 requesting the Respondent to submit copies of tax clearance certificates forwarded to the said Respondent by persons seeking election into public office.

5. that the Respondent by its letter dated 13/2/2007 refused to make available to the Appellant copies of tax clearance certificates of candidates vying for elective office for verification by the Appellant.

6. that it is necessary for the Appellant to be seised of the content of the tax clearance certificates submitted to the Respondent by persons seeking election into public office for the purpose of ascertaining the genuineness of the tax certificates, their validity and adequacy of tax paid.

7. that despite repeated requests the Respondent has refused to include any representative of the Appellant in its Committee that screened candidates for elective offices and has also refused to make available to it (i.e. Appellant) copies of the tax clearance certificates submitted to it for the purpose of verification by the Appellant

8. that the possession of genuine tax clearance certificate and adequacy of tax paid can only be verified by the Appellant and other relevant authorities responsible for issuing the same.

The Plaintiff who is the Appellant in the instant appeal is “FEDERAL BOARD OF INLAND REVENUE”. The body is basically a creation of the Companies Income Tax Act Cap, C 21 LFN 2004 and it is charged with extensive duties under the said legislation. A reading of the provisions of the PITA leaves no one in doubt that the said enactment is one that is basically for implementation by the States Tax Boards being the “State Relevant tax authority” as defined under the interpretation section (i.e. section 108) of the said enactment. While the Appellant is equally referred to in the interpretation section of the PITA under the definition of “tax authority” which is stated to mean the “Federal Board of Inland Revenue, the State Board or the Local Government Revenue Committee”; what is however incontrovertible is that the Appellant is not charged with any duty under any of the sections of the PITA.

The question which then arises for consideration having regard to the meaning of cause of action and right of action respectively, against the backdrop of the facts deposed to in the supporting affidavit of the Appellant, is what cause of action can the Appellant be said to have, to pose the questions for determination in this case and the reliefs sought. In order words what factual situation is the Appellant who is:

(i) not charged with any duty under PITA;

(ii) Who did not write ‘Exhibits “A” and “B” and to whom Exhibit “C” was not addressed;

rely upon as giving it a right of action to pose the questions for determination in the Originating Summons for the lower court based on the provisions of PITA and the Constitution and to seek for the reliefs being claimed.

The clear answer in my considered view is that the Appellant has woefully failed to disclose any cause of action against the Respondent in the circumstances of this case.

In Exhibit “C” attached to the supporting affidavit of the Originating Summons, the Respondent stated clearly to the effect that the candidates seeking for election are not required to present tax clearance certificates by virtue of relevant provisions of the Constitution unlike in the past. That asking candidates to meet any other condition outside those provided for in the Constitution would be unlawful and unconstitutional and will involve it in avoidable litigation.

Now even if it is on this letter that the Appellant has based the instant action, it still has to contend with how it has a cause of action against the Respondent for anything not done by the said Respondent when it was not the writer of the letter to which Exhibit “C” is a reply This I must say the Appellant woefully failed to show and in the absence of the disclosure by the Appellant of a cause of action against the Respondent, there is not only no basis whatsoever for the questions which the Appellant posed for the determination of the lower court but also the reliefs which it seeks based on the answer to the questions.

This Issue is accordingly resolved against the Appellant.

As I am aware that this Court is an intermediate appellate court and as such bound to pronounce on all the issues placed before it, I will now proceed to consider Issues 1 and 2 formulated by the Appellant together, although the conclusion that the Appellant’s action lacks a cause of action against the Respondent should ordinarily have disposed of this appeal.

The complaint in Issue 1 is that the lower court failed to do justice to the issues before it as it did not give judicial interpretation to the weighty issues of law before it. Issue 2 raised the question as to whether or not the Appellant’s failure to respond to the counter affidavit of the Respondent was fatal to its case as the facts were already addressed in some other processes.

In its judgment, the lower court said to the effect that the issue before it was not a question of false tax declaration, or non-payment of tax, or tax evasion or avoiding tax or non-payment of tax or under payment of tax or over payment of tax or wrong assessment of tax.

That the issue relates to a matter of requirement for eligibility to contest election or the disqualification from contesting election. That the Respondent filed an affidavit in which it said to the effect that, it neither asked for nor received tax clearance certificates from candidates and as such has no certificate to forward to the Appellant as requested. And also that it (i.e. Respondent) does not need the presence of the Appellant at the screening of candidates because the presentation of tax clearance certificate is not a requirement under the 1999 Constitution,

I cannot but say that issues in any given case can never be in the abstract. The lower court had the affidavit evidence of the parties before it and it would appear that the said court was right as to what the case before it was about. Indeed the Appellant would appear not to quarrel with the deduction the lower court made concerning what its case is about. The Appellant has only argued that its case was larger in scope than the narrow issue of whether the Respondent asked for, or received tax clearance certificates. It would appear that the Appellant has lost sight of the fact that the questions it posed for determination by the lower court in the Originating Summons must find basis in the facts deposed to in the supporting affidavit. And all that the lower court has said concerning the issue before it, is no more than that what the totality of affidavit evidence show, is that the Appellant’s case is not about administration of the PITA but revolves around the matter of eligibility to contest election or disqualification from contesting election, I am of the considered view that the lower court is eminently correct in this regard.

The lower court in order to show that it has duly considered the issues which the Appellant has classified as weighty does not have to set out verbatim provisions of the law the Appellant has referred to. It is sufficient if the lower court averted its mind to the provisions in question. The lower court clearly showed that it did not restrict itself to the provisions of the Constitution referred to only. The court stated thus: –

“I have reproduced the requirement for election and disqualification and with due respect to the provisions of any other law, tax clearance certificate is not one of the requirements for contesting elections.”

The Respondent clearly showed that despite the provision of Section 85(2), (3) and (4)(s) of the PITA it did not demand for the tax clearance certificates for the three years immediately preceding the current year of taxation from persons seeking election into public office as it is statutorily obligated. The duty imposed on the Respondent by the provisions in question definitely cannot translate the demand the Respondent is to make into a constitutional requirement for qualification or disqualification of candidates for contesting elections conducted by the Respondent even if as argued by the Appellant the PITA has made the provision of Section 24(f) of the Constitution justiciable. All that the infraction of the provisions of the said Section 85(2), (3) and (4) (s) of PITA can result in, is an action against the Respondent for an order compelling it to act as enjoined under the provisions in question. The refusal of the Respondent to act as enjoined pursuant to the provisions of Section 85(2), (3) and (4) (s) of PITA cannot at the instance of the Appellant form the basis of the questions for determination in the Originating Summons and/or as found by the lower court, for the Appellant in participating in the screening of candidates as requested by it. Indeed the without an order compelling the Respondent to demand for tax clearance certificates as it is enjoined by law to do, in the face of its unequivocal disclosure that it never demanded for such certificates, makes any order been sought to compel the Respondent to forward what it has not demanded for, even though it ought to have demanded for it, without basis. Against the backdrop of all that has been said I cannot in the circumstances fault the conclusion of the lower court that the Appellant’s cause of action might be elsewhere and the dismissal of the case as the Appellant had failed to establish its claims.

In conclusion, Issues 1 and 2 are therefore resolved against the Appellant.

As all the Issues formulated for the determination of this appeal by the Appellant have been resolved against it, this appeal accordingly fails and is hereby dismissed. The judgment of the lower court dismissing the Appellant’s case is upheld

I make no order as to costs,

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Other Citations: (2009)LCN/3472(CA)