Ikeja Hotels Plc. V. Lagos State Board of Internal Revenue (2005)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
By a writ of summons sealed on the 27th January, 2001, the plaintiff’s claims were for the following:-
(a) N262,000,000.00 (two hundred and sixty two million Naira) being arrears of sales tax and penalty that was assessed on Sheraton Hotel and Towers, a hotel within the chains of Ikeja Hotels Plc. for the months of assessment January, 2001 – May, 2001.
(b) Interest on the said amount at the rate of 21% from 1st of June, 2001, until judgment and thereafter at the rate of 6% per annum until the whole amount is liquidated.”
The defendant responded to the claim by filing a notice of preliminary objection dated 17th April, 2003, challenging the jurisdiction of the trial court to hear and determine the suit on the following 14 grounds:-
(a) The plaintiff in this action is, and was al all times material, a statutory body established by section 3 of the Personal Income Tax Law Cap P4 of the laws of Lagos State of Nigeria.
(b) The composition of the said body is set out in subsection (2) of section 3 of the said law.
(c) The body mentioned in paragraph (a) hereof has been superseded by the Personal Income Tax Decree 104 of 1993, which set up the State Board of Internal Revenue for Lagos State pursuant to section 85A( 1) of this said Decree.
(d) The composition of the State Board mentioned in paragraph (c) above, is set out in sub-section (2) of the aforementioned section 85A of Decree 104 of 1993.
(e) The plaintiff is not the “relevant tax authority” under the Personal Income Tax Decree.
(f) In the premises, the body mentioned in paragraphs (a) and (b) hereof has no locus standi and it is not competent to institute this action.
(g) For the foregoing reasons, this court has no jurisdiction to entertain this action.
(h) By the provisions in the Constitution of the Federal Republic of Nigeria, 1999, the National Assembly is conferred with power to make laws with respect to matters in section 4(2) and (4) of the said Constitution.
(i) Under the Constitution, only the National Assembly has power to make laws with respect to the taxation of income, profits capital gains as well as trade and commerce.
(j) Pursuant to its powers to make laws with respect to income tax and/or trade and commerce, the Federal Military Government enacted the Value Added Tax Decree No. 102 of 1993.
(k) The aforementioned Value Added Tax Decree No. 102 of 1993 is an “existing law” within the meaning of that expression on section 315 of 1999 Constitution.
(l) The Sales Tax Law, Cap. 53, Laws of Lagos State, 2003, is a law on the taxation of incomes, profits, capital gains as well as trade and commerce.
(m) The tax imposed upon the items of goods sold or services rendered by the Sales Tax Law, Cap. 53, Laws of Lagos State, 2003 involves the regulation of matters within the exclusive legislative competence of the National Assembly.
(n) In the premises, the composition of tax as aforementioned is unconstitutional, illegal and void.
The learned Counsel for the defendant, Mr. Nweze argued the objection on a sole ground that the plaintiff has no locus standi to invoke the jurisdiction of the court and abandoned the remaining 13 grounds stated on the notice of preliminary objection. The objection was then heard and dismissed by the learned trial Judge who concluded his decision as follows:-
“The plaintiff herein is the Lagos State Board of Inland Revenue as provided in the above stated section 85A, and section 85B(i)(a) states as among its functions that “The State Board shall be responsible for ensuring the effectiveness and optimum collection of all taxes and penalties due to the Government under the relevant laws.
From the foregoing, I hold that the plaintiff here, is a legal body and it is statutorily charged with ensuring the effectiveness and optimum collection of all taxes and penalties due to government in Lagos State which necessarily includes the sales tax. In the circumstances, the preliminary objection is misconceived and it is accordingly dismissed.”
The defendant was unhappy with the dismissal of the preliminary objection and being dissatisfied appealed the decision to this court on two grounds of appeal.
In accordance with the practice and procedure of this court, briefs of argument, which were settled at the appellant’s brief and the respondent’s brief of argument were filed and exchanged. They were adopted and relied upon, at the hearing of the appeal.
In the brief filed for the defendant (hereinafter referred to as appellant) the following issue was framed:-
“whether the plaintiff/respondent has the locus standi to institute this action.”
The plaintiff (hereinafter referred to as the respondent) adopted ippissima verba appellant’s formulation of issue as the issue solely arising for determination in this appeal.
In arguing the appeal, learned counsel for appellant, read sections 4 and 13 of the Sales Tax Law, Cap. 53 and submitted that this Board is clearly different in composition and function from the plaintiff. It was further contended that contrary to the respondent’s contention in paragraph 1 of its statement of claim that it is the body charged with the responsibility to administer the Sales Tax Law, it is infact another body. Learned Counsel for appellant read the concluding paragraphs of the learned trial Judge’s judgment and submitted that the position taken by the court below could not be correct. He contended further that collection of the sales tax is clearly vested in the Lagos State Internal Revenue Board by section 13 of the Sales Tax Law and section 85A of the Personal Income Tax Act which sets out the plaintiff did not vest it with any power to collect sales tax. It was then submitted that it is the law that clear and unambiguous provisions of a statute should be given their ordinary meaning – Udoh v O.H.M.B. (1993) 7 NWLR (Pt. 304) 139, which counsel also stated dealt with the principle of “expressio unius est exclusion alterius.” It was finally submitted that the Sales Tax Law, having specifically stipulated Lagos State Board of Internal Revenue, Personal Income Tax Act which makes general provisions on the powers of the plaintiff cannot derogate from the express provisions of the Sales Tax Law.
While responding, learned Counsel for respondent, Mrs. Jose, in the respondent’s brief, contended that, by virtue of section 1 of the Personal Income Tax Law of Lagos State as amended by the Personal Income Tax (Amendment) Law No.7 of 1997, the Personal Income Tax Law was to be read with the Provisions of Finance (Miscellaneous Taxation Provisions No.2) Decree No. 31 of 1996, which added new sections 85A and 85B to Personal Income Tax Decree No. 104 of 1993. The two new sections, namely 85A and 85B created and charged with responsibility respectively Lagos State Board of Internal Revenue for ensuring the effectiveness and optimum collection of all taxes due to the government under the relevant Laws. It was further submitted that if there is inconsistency between the Act and any law the Act should prevail.
There is substance in the submission of the learned Counsel for respondent that the appellant’s’ contention that respondent lacked competence to bring the action against the appellant is misconceived.
It is apt at this stage to state albeit succinctly the genesis of the change of nomenclature of the respondent. The powers of the National Assembly to make laws with respect to income tax stems from Items 7 and 8 of Part 11 of the second schedule of the 1979 Constitution of the Federal Republic of Nigeria, which position still holds sway under the Constitution of the Federal Republic of Nigeria, 1999. The Personal Income Tax Law of Lagos State was made pursuant to the Income Tax Management Act, the principal Act then.
The Income Tax Management Act was itself repealed and substituted with the Personal Income Tax Decree No. 104 of 1993, which was in turn amended by the Finance (Miscellaneous Taxation Provisions 10.2) Decree No. 31 of 1996.The amendment effected by the Decree No. 31 of 1996, relevant to these proceedings, was the introduction of two fresh sections 85A and 85B into Personal Income Tax Decree No. 104 of 1993, consequently, Lagos State in 1996, updated its Personal Income Tax Law by deleting income Tax Management Act, wherever it occurred in its Personal Income Tax Law and substituted same with Personal Income Tax Act by Personal Income Tax (Amendment) Edict No.7 of 1996.
It seems to me from the foregoing, that the contents of Personal Income Tax Law is dictated or determined by the dictates of Act of National Assembly, a position accepted or appreciated by appellant in its notice of preliminary objection. It follows that the State has no final say, if at all, on the status or nomenclature of the respondent.
Sections 4 and 13 of the Sales Tax Law, Cap. 53 of the Laws of Lagos State of Nigeria, 2003, provide as follows:-
“4. For the purpose of this Law, the Board shall have power to charge and collect from any seller or supplier of chargeable commodities in the manner stipulated under section 3 of this Law.”
And section 13 of the same Law defines the Board thus:
“Board” means the Lagos State Internal Revenue Board established under the Personal Income Tax Law, Cap. 142, Laws of Lagos State.”
It is respectfully convenient, at this stage, to read section 1(1) of the Personal Income Tax Law, Cap. 142 of the Laws of Lagos State, 1994, as amended by Personal Income Tax (Amendment) Edict No.7 of 1996.
“1.(1) This Law may be cited as the Personal Income Tax Law, and shall be read as one with the Personal income Tax Act (hereinafter referred to as the principal Act) with respect to tax for the year of assessment beginning on the first day of April, 1961, and for subsequent years.”
This subsection encourages or empowers the reading of the provisions of the Personal Income Tax Act as one with the Personal Income Tax Law, Cap. 142. Pursuance of these provisions sections 85A and 85B of the Personal Income Tax Act would be read as if they were one with the provisions of the Personal Income Tax Law of Lagos State.
Sections 85A and 85B changed the name of Lagos State Internal Revenue Board created under section 3 of the Law, Cap. 142 from Lagos State Internal Revenue Board to Lagos State Board of Internal Revenue and vested it with responsibility. Section 85A(1) which is to be read as one with the Personal Income Tax Act provides as follows:-
“85A-(1) There is hereby established for each State, a Board to be known as the State Board of Internal Revenue (in this Decree referred to as “the State Board”) whose operational arm shall be known as the State “Internal Revenue Service (in this Decree referred to as “the State Service.”)”
While section 85B(1) amongst others clothes the Board with the function of:-
85B(1)The State Board shall be responsible for:-
(a) ensuring the effectiveness and optimum collection of all taxes and penalties due to the Government under the relevant laws.
The implication of the introduction of the two sections, 85A and 85B, particularly the former, is that section 3 of the Personal Income Tax Law, establishing the erstwhile Lagos State Internal Revenue Board, as observed earlier in this judgment, is amended to the extent that the board created therein is renamed Lagos State Board of Internal Revenue. The appellant recognised this development in its notice of preliminary objection, when it said that the old Lagos State Internal Revenue Board had been superceded by the new Lagos State Board of Internal Revenue. See paragraph (e) of the preliminary objection. What the appellant described as supercession is generally referred to in drafting parlance as substitution.
I agree that the drafting of section 13 of the Sales Tax Law is inelegant. Section 13 of the Sales Tax Law ought not have stated any particular name for the board saddled with the responsibility to collect sales tax. It should have limited its definition to the Board established under section 3 of the Personal Income Tax Law or something to that effect. This would allow for flexibility apart from creating room for mischief making. Notwithstanding this remark, I am respectfully of the view that section 13 of the Sales Tax Law has sufficient provision that the definition of the Board therein is still referable or subject to section 3 of the Personal Income Tax Law, Cap. 142. The Board defined in section 13 of the Sales Tax respectfully assume a name or title subject to the status of the Board created under section 3 of Personal Income Tax Law. A new board having been created it sun-enders its former name and assume the new one. This legislation, by virtue of the amendment to the Personal Income Tax Act is impliedly amended to the effect that the board created in section 3 thereof is deleted and replaced with a new board known and styled as Lagos State Board of Internal Revenue which is the respondent in the instant appeal. Learned counsel for appellant has not contested that the amendment is not receivable. He would have probably been on a stronger wicket if he were able to show that the implied amendment to the Personal Income Tax Law by the Finance (Miscellaneous Taxation Provisions No.2) Decree 31 of 1996, is unconstitutional. In the absence of demonstrating the unconstitutionality of amendments effected in the Lagos State Personal Income Tax Law, Cap. 142 of the Laws of Lagos State, 1994, it is my respectful view that the appellant’s effort is no more than being much ado about nothing, as it tantamounts to making a mountain out of a mole hill; and an attempt to buy time for the appellant. It is my considered view, that the words of section 85A of the Personal Income Tax Act are very clear and this court is bound to give them their literal, grammatical and natural meanings unless doing so it will result in absurdity. See Military Administrator, Benue State v. Ulegede (2001) 17 NWLR (Pt. 741) 194 Udoh v. O.H.M.B. (1993) 7 NWLR (Pt.304) 139, which was cited by both parties in their respective briefs of argument except to mention that the principle of expressio unius est exclusio alterius appellant claimed was restated therein is not relevant for determination in the present appeal.
The question whether the respondent has power to collect sales tax raised in the appellant’s brief is most inappropriate. Its objection touches upon the standing or locus standi of the respondent to institute the action. To extend it to the power or function of the respondent is most preposterous and uncharitable. But if I should answer it, I respectfully call in aid the provisions of section 85B of Decree 31 of 1996, which empowers the respondent to collect all taxes and penalties due to the Government under the relevant laws.
It should be noted that the words “tax” and “law” under section 85B are in the plural which means that the tax collectable is more than one and the legislations under which such taxes could be collected are also many and not limited to Personal Income Tax Law. It envisages the State’s Sales Tax Law and many more.
It is probably the wide scope of section 85B that informed the appellant to abandon the relevant grounds in its preliminary objection.
Consequently, the respondent by the consequential amendments which have been demonstrated above has locus standi to bring this action and to collect and administer sales tax being levied by the State under the combined reading of the Sales Tax Law and Personal Income Tax Law as amended. The appeal fails and is dismissed.
The decision of the learned trial Judge dismissing the preliminary objection is affirmed. The learned trial Judge should, therefore, commence or proceed with the hearing or trial of the suit on its merit.
I make order as to costs which is assessed at N10,000.00 in favour of respondent to the appeal and against the appellant herein.
Other Citations: (2005)LCN/1818(CA)
