CASE REVIEW: Issues Relating to Refund of Petroleum Profit Tax are Inarbitrable

ESSO EXPLORATION AND PRODUCTION NIGERIA LIMITED & ANOR v. FIRS & ANOR

COURT OF APPEAL ABUJA DIVISION

(AKOMOLAFE-WILSON; AGIM; HASSAN, JJ.CA)

The appellants and the 2nd respondent are parties to a Production Sharing Contract (PSC). Allocation of crude oil between the parties was to be done in accordance with Royalty Oil, Cost Oil, Tax Oil and Profit Oil. Royalty Oil and Tax Oil were allocated to the 2nd respondent while Cost Oil and Profit Oil were allocated to the appellants. Under the PSC, the parties are to submit any dispute to arbitration and Nigerian law was chosen as the applicable law. The appellants were vested with the responsibility of preparing the Petroleum Profit Tax (PPT) returns for every accounting year based on the allocation and lifting formula. The returns were to be filed with the 1st respondent by the 2nd respondent. The appellants alleged among other things that the 2nd respondent violated the agreement by unilaterally altering the PPT returns prepared by the appellants and instead preparing its own PPT returns that were based on the crude oil that the 2nd respondent had lifted. The appellants alleged that the 2nd respondent had consequently increased their tax liability.

The dispute was eventually referred to arbitration. After hearing the parties, the arbitral tribunal gave its award in favour of the appellants and held that the 2nd respondent was in violation of the PSC. The 1st respondent, although not a party to the arbitral proceedings, became aggrieved by the award and consequently filed a suit against the parties to the PSC at the Federal High Court, Abuja Division. The gravamen of the 1st respondent’s suit was that the issues referred to the tribunal border on taxation and government revenue, and are therefore inarbitrable and fall outside the jurisdiction of the arbitral tribunal. The 1st respondent also contended that the award affected its statutory duties of assessing and determining the Petroleum Profit Tax to be paid by parties to a PSC. The trial court heard the parties on the suit and gave judgment in favour of the 1st respondent setting aside the award on the ground that the issues before the tribunal were inarbitrable and that the tribunal lacked jurisdiction to entertain and determine them.

The appellants were dissatisfied with the decision of the Federal High Court and filed a notice of appeal at the Court of Appeal, Abuja Division urging the court to overrule and set aside the decision of the court. One of the issues for determination is whether the learned trial judge had jurisdiction to intervene in arbitration proceedings having regard to the provisions of the Arbitration and Conciliation Act, 2004.

Arguing the issue, learned counsel for the appellants contended that the trial Court was wrong to have interfered with and intervened in the arbitration proceedings and that the ground relied upon by the trial court to hold that the arbitral tribunal lacked the jurisdiction to entertain the arbitration proceedings and determine the arbitral dispute brought before it was wrong. Learned counsel argued that although Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 vests in the Federal High Court exclusive jurisdiction in civil causes and matters connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria, the issues submitted to arbitration did not usurp the powers of the Federal High Court as they only relate to violation of the PSC by the 2nd respondent. Moreover, parties had agreed to refer such dispute to arbitration by inserting an arbitration clause in the PSC. Learned counsel urged the court to resolve the issue in favour of the appellants.

In response, learned counsel for the 1st respondent contended that Section 251(1) of the Constitution of the Federal Republic of Nigeria already confers exclusive jurisdiction on the Federal High Court on taxation and other matters, and that it will be inconceivable and absurd to bar all other Superior Courts and tribunals from entertaining such matters, only to confer a jurisdiction on arbitral tribunals pari passu with the Federal High Court. Learned counsel argued that the issues submitted to the arbitral tribunal, contrary to the position of the appellants, are issues bordering on taxation and the 1st respondent’s ability to assess, determine and collect Petroleum Profit Tax which are its core responsibilities. Learned counsel urged the court to discountenance the argument of the appellants and resolve the issue in favour of the respondents. Learned counsel for the 2nd respondent aligned with the argument of the counsel for the 1st respondent.

In resolving the issue, the court held thus:

The duty of the parties to a PSC to pay Petroleum Profit Tax for the contract area like all tax obligations is statutory as it is imposed by statute. Like all tax obligations it cannot be regulated by contract. The exercise of statutory power conferred on the 1st respondent by the PPT Act, the FIRS Act and other tax legislations cannot be done by any other body including an Arbitral Tribunal and cannot be regulated by contract. An Arbitral award cannot be made to defeat the enforcement of the provisions of any tax legislation. Therefore the duty of the parties to the PSC to pay the PPT for the contract area and the exercise of the statutory powers of the 1st respondent to assess, determine and collect petroleum profit tax from Oil producing companies in Nigeria and the non refundability of paid Petroleum Profit Tax except the part considered as over payment are not arbitrable. In Esso Exploration and Production Nig. LTD & Anor v. NNPC (Judgment in CA/A/507/2012 on 22-7-2016 and in Shell Nigeria Exploration and Production & Ors v. F.I.R.S & Anor (Judgment in CA/A/208/2012 on 31-8-2016) this court held that reliefs f, h, I and j claimed for and awarded by the Arbitral Tribunal in CA/A/507/2012 and reliefs o, p, q and r claimed for and awarded by the Arbitral Tribunal in CA/A/208/2012 claimed for and awarded by the Arbitral Tribunal in CA/A/507/2012, which reliefs are exactly similar to reliefs (f), (h) and (i) claimed for and awarded by the Arbitral Tribunal in our present case, raise tax issues. I have no reason to depart from this decision on this point. The arbitral Tribunal lacks the jurisdiction to entertain and determine such matters.

Issue resolved partly in favour of the appellants and partly in favour of the respondents.

Dr. Eyimofe Atake SAN with Olubusayo Ibrahim (Mrs.) D. Odumosu, A. Atitebi C. Ejiofor and S. Babajide for the appellants.
L. E. Nwosu SAN with J.U.K. Igwe SAN, A. A. Anyaogu, S. I. Igwe and Z. A. Nwosu for 1st Respondent.
C. Unaegbunam (Mrs.) with M. Michael for 2nd Respondent.

This summary is fully reported at (2018) 2 CLRN
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The jurisdiction of the Federal High Court is determined by the subject matter of a claim, not the parties

CARAVELLE RESOURCES AND INVESTMENT LTD & ANOR. v. GANI TARZAN MARINE ENTERPRISES LTD & ANOR

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; ABUBAKAR; GEORGEWILL, JJ.CA)

The appellants filed a suit against the 1st respondent at the High Court of Lagos State for among other reliefs, a declaration that the statutory right of occupancy over a piece of land described in a deed of lease and registered at the Federal Lands Registry, Ikoyi, Lagos belongs to the 1st appellant. The 1st respondent responded to the suit by filing its defence and in addition, a motion seeking to join the 2nd respondent since its claim to the land in dispute was derived through the 2nd respondent. The 1st respondent also challenged the jurisdiction of the court to hear and determine the matter. The court however, struck out the objection and held that it had jurisdiction. The court also struck out the 1st respondent’s application to join the 2nd respondent. The 1st respondent was dissatisfied with the rulings of the court and consequently filed two appeals at the Court of Appeal, Lagos Division, one challenging the court’s decision on jurisdiction and the other challenging the court’s ruling on the joinder of the 2nd respondent. The Court of Appeal in its separate decisions, allowed the appeal of the 1st respondent concerning the joinder of the 2nd respondent in the suit, while dismissing the appeal challenging the ruling of the court concerning its jurisdiction. The decisions of the Court of Appeal were complied with by the parties and the trial court and consequently, the parties amended their pleadings.

The 2nd respondent having been joined by the order of the Court of Appeal, filed its own notice of preliminary objection challenging the jurisdiction of the trial court to hear and determine the matter on grounds bordering mainly on the fact that the 2nd respondent is an agency of the Federal Government and as such only the Federal High Court has jurisdiction to hear and determine the matter. The trial court heard the preliminary objection and after considering the arguments of the parties delivered a bench ruling in which it allowed the application of the 2nd respondent and dismissed the suit of the appellant on the ground that the joinder of the 2nd respondent had changed the status of the suit and that the Federal High Court was the court with requisite jurisdiction to hear the matter. The appellants were aggrieved and filed a notice of Appeal at the Court of Appeal, Lagos Division challenging the ruling of the trial court and praying the court to reverse same. One of the issues distilled for determination is whether the trial court was right in declining jurisdiction over the matter merely because of the joinder of the 2nd respondent in spite of an earlier decision of the court between the parties affirming the subject matter of the suit as falling under the jurisdiction of the State High Court and not the Federal High Court.

Arguing the issue, learned counsel for the appellants submitted that since the claims of the appellants remained unchanged and within the jurisdiction of the trial court, the joinder of the 2nd respondent alone was incapable of and did not divest the court of its jurisdiction as erroneously held by the trial court. Learned counsel cited Dingyadi v. INEC; Adebayo v. Ademola and Odunukwe v. Ofomtta. Furthermore, learned counsel submitted that from the main and dominant reliefs claimed by the appellants, it is the court below that has the jurisdiction to determine them since in law it is the claims of the claimant that determine the jurisdiction of the court and contended that in law the joinder of the 2nd respondent, which was a subsequent intervening factor during the pendency of the suit will not affect the jurisdiction of the court where the claims of the Appellants have not changed. Counsel referred the court to, among several authorities, the decision in Tukur v. Gov. Gongola State and urged the court to resolve the issue in favour of the appellant.

Countering the argument of the appellants, learned counsels for the respondents submitted in effect that although it is not in doubt that it is the claim of the claimant that determines jurisdiction of the court, the ruling of the trial court declining jurisdiction was simply to align with and respect the decision of the Supreme Court as required of it by law that once a Federal Government agency is a party to a suit, irrespective of the claims, the Federal High Court has exclusive jurisdiction. C.B.N. v. Auto Import Export; Osakue v. F.C.E, Asaba and Osho v. Foreign Finance Corporation were cited as authorities to support the submission. It was further contended that by virtue of section 251(1) of the 1999 Constitution, that it is the Federal High Court that is vested with requisite jurisdiction to entertain the claim. Nnonye v. Anyiche; Adetona & Ors v. Igele Gen. Enterprises Ltd and Kotoye v. Saraki among other authorities were relied upon. Learned counsels urged the court to discountenance the submissions of the appellant and resolve the issue in favour of the respondents.

In resolving the issue the court held thus:

The claims of the Appellants have been reproduced earlier in this judgment and having calmly and critically examined and scrutinized the same, I am inclined to lean more in favor of the first school of thought that says that in the determination of the jurisdiction of court below and also of the Federal High Court it is the subject matter and not necessarily the status of the parties involved that determines the jurisdiction of the court. See Felix Onuorah v. Kaduna Refilling and Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393; Wema Securities and Finance Plc v. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169; Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218; Opia v. I.N.E.C (2014) 7 NWLR (Pt 1407) 41 @ p. 465; Adetona v. Igele Gen. Ent. Ltd. (2011) 197 LRCN 138.

In Felix Onuorah v. Kaduna Refilling and Petrochemical Co. Ltd. (Supra), Akintan JSC, had emphatically pronounced thus:

“The question whether the Respondent is a subsidiary or agent of NNPC or not has no role when a consideration of the jurisdiction of the court is being made”

As recent as 2015, the Supreme Court had reiterated and reechoed the above well settled position of the law in Wema Securities and Finance PIc v. Nigeria Agricultural Insurance Corporation (Supra) @ p. 130, where Nweze, JSC had restated the law inter alia thus:

“As if it was minded to perpetuate the said frenzy of doctrinal debates, the lower court, as already shown above, took the view that the trial court had no jurisdiction to entertain the matter before it just because the second defendant (the respondent in this appeal) was an agency of the Federal Government! …. In my humble view, while it, rightly, found that the respondent is an agency of the Federal Government….its conclusion that the mere presence of that agency of the Federal Government robbed the trial Court of jurisdiction must rankle all liberal constitutional jurisprudents and judicial exegetes.”

Issue resolved in favour of the appellants.

Chief G. N. Uwechie SAN, with Mrs. J. Halim – Ubahakwe for the Appellants
Anthony Nwogbe Esq., for the 1st Respondent
Babatunde Oshilaja Esq., for the 2nd Respondent

This summary is fully reported at (2017) 12 CLRN
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Lease Granted in Respect Of Property Subject to Litigation is Null and Void Where Judgment is Delivered Against Lessor

MOONTRENDS LIMITED (Trading under the name of Skymit Motors) v. OANDO PLC; OSA INVESTMENT AND PROPERTY COMPANY LIMITED

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; OGAKWU; TUKUR, JJ.CA)

The appellant entered into a leasehold with the 2nd respondent over a landed property situate at No. 1, Ozumba Mbadiwe Avenue, Victoria Island, Lagos which at the time the lease was taken, was already subject matter of litigation at the High Court of Lagos State between the 1st respondent and the 2nd respondent. Eventually, the parties amicably resolved the matter and a consent judgment was executed and entered as the judgment of the court. The consent judgment recognized the 1st respondent as the rightful owner and consequently, a warrant of possession was issued by the court. The consent judgment was not appealed against and the 1st respondent took legal steps to enforce it by ejecting the appellant from the property. The appellant felt aggrieved by the execution of the judgment and filed an action at the High Court of Lagos State seeking declarations that the execution of the judgment was unlawful and that the 1st respondent had no legal right to take or retain possession of the premises from the appellant.

In response, the 1st respondent filed its defence alongside a preliminary objection challenging the jurisdiction of the court to hear and determine the matter. The gravamen of the objection was anchored on the ground that the court was incompetent to sit on appeal over the decision of a court of co-ordinate jurisdiction. The 1st respondent contended that the consent judgment was a decision of the same High Court where the appellant filed its suit challenging the decision of the court. After hearing the parties on the preliminary objection, the trial court gave its ruling in favour of the 1st respondent and dismissed the appellant’s suit in addition to the award of N150,000.00 (One Hundred and Fifty Thousand Naira) as costs. The appellant was dissatisfied with the judgment of the court and filed a Notice of Appeal at the Court of Appeal, Lagos Division urging it to reverse the trial court.

One of the issues raised for determination was whether the appellant was bound by the consent judgment of the High Court which granted possession of the land to the 1st respondent and upon which execution was granted and executed.

Arguing the issue, learned counsel for the appellant submitted that the appellant was not bound by the decision of the High Court since the appellant had been in physical occupation of the land for over eight years and ought to have been a party to any court proceedings before it can be lawfully bound by it. Learned counsel cited the cases of Oduola v. Nabhan; Babatola v. Aladejana and Governor of Lagos State v. Ojukwu. Learned counsel further contended that the appellant, who is a statutory tenant by virtue of long and peaceful possession, was ejected without service of the required statutory notices by the 1st respondent. Learned counsel cited, among several authorities, the case of Pan Asian African Co. Ltd v. National Insurance Corporation of Nig. Ltd to submit that the ejection of the appellant by the 1st respondent is unlawful and urged the court to resolve the issue in favour of the appellant.

Responding to the submissions of the appellant, learned counsel for the respondent submitted that there is no landlord/tenant relationship between the appellant and the 1st respondent and so the Appellant cannot be deemed its tenant and that the address of counsel cannot be used as substitute for the existence of a landlord/tenant relationship which the evidence did not disclose. Learned counsel cited the case of Obasuyi v. Business Ventures Ltd. Furthermore, learned counsel contended that the decision of the High Court was binding on the appellant as a privy of the 2nd respondent particularly since the appellant, took a lease agreement of the land from the 2nd respondent, in spite of its knowledge of the pending litigation. Learned counsel posited that the lower court was right when it held that the lease agreement was caught by the doctrine of lis pendens, such that the appellant is bound by the decision of the High Court. Learned counsel cited the case of Bua v. Dauda and urged the court to discountenance the arguments of the appellant and resolve the issue in favour of the respondents.

In resolving the issue the court held thus:

It is not contested that the Appellant’s presence on the land is on account of the lease granted to it by the 2nd Respondent when the action in Suit No. LD/1713/1995 was pending. Also not disputed is the fact that the decision in Suit No. LD/1713/1995 is to the effect that any rights, title or interest claimed by the 2nd Respondent over the land is null and void. The effect of this is that the acts of the 2nd Respondent, including the leases it granted to the Appellant are of no legal effect. The Latinism is ex nihilo nihil fit, out of nothing, nothing comes: Management Enterprises Ltd v. Otusanya (1987) LPELR (1834) 1 at 74 (SC), In Re: Otuedon (1995) LPELR (1506) 1 at 16 – 17 and Nzom v. Jinadu (1987) LPELR (2143) 1 at 44.

As enunciated by Lord Denning, M. R. in Macfoy v. UAC (1961) 3 WLR 1405 the principle of a null and void act is that you cannot put something on nothing and expect it to stand.

Issue resolved in favour of the respondents.

Rotimi Rhodes, Esq., with Kingsley Oduah, Esq., for the Appellant.
Mutiu Akinrinmade, Esq., for the 1st Respondent.
2nd Respondent not represented.

This summary is fully reported at (2017) 11 CLRN
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The Administration Of Criminal Justice Act, 2015 (ACJA)

Introduction

The Administration of Criminal Justice Act, 2015 (ACJA) is unmistakably the hottest Law in Nigeria presently and it is without doubt due to its wide applicability and revolutionary nature. The Law comes in handy for both lawyers and non-lawyers.

The Act which was signed into law in May 2015, has a 495-section law divided into 49 parts, providing for the administration of criminal justice and for related matters in the courts of the Federal Capital Territory and other Federal Courts in Nigeria.  With the ACJA, Nigeria now has a unique and unified law applicable in all federal courts and with respect to offences contained in Federal Legislations. The law repeals the erstwhile Criminal Procedure Act as applied in the South and the Criminal Procedure (Northern states) Act, which applied in the North and the Administration of Justice Commission Act.

The ACJA, by merging the major provisions of the two principal criminal justice legislations in Nigeria, that is CPA and CPC, preserves the existing criminal procedures while introducing new provisions that will enhance the efficiency of the justice system and help fill the gaps observed in these laws over the course of several decades.

The law has been described as the much awaited revolution in the criminal justice arena as the criminal justice system existing before the coming into force of this law has lost its capacity to respond quickly to the needs of the society, check the rising waves of crime, speedily bring criminals to book and protect the victims of crime.

Section 1 of the ACJA is overtly apt in explaining the purpose of the Act thus: The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.

One essential feature of the ACJA is its paradigm shift from punishment as the main goal of the criminal justice to restorative justice which pays serious attention to the needs of the society, the victims, vulnerable persons and human dignity generally. The general tone of the Act puts human dignity in the fore, from the adoption of the word defendant instead of accused, to its provision for humane treatment during arrest[1], to its numerous provisions for speedy trial, to suspended sentencing[2], community service[3], parole[4], compensation to victims of crime[5] and so-on.

A Peep Into Administration Of Criminal Justice Act, 2015

The ACJ Act has 495 Sections through which its tentacles spread across every major aspect of criminal justice system. In fact, the Act regulates more than just criminal procedure; it covers, in most part, the entire criminal justice process from arrest, investigation, trial, custodial matters and sentencing guidelines. It is about all things criminal, from the cradle to the grave. We shall take a look at some of the innovative provisions of the Act which we consider to be landmark issues as follows:

  1. Unlawful Arrests

This is one of the provisions of the Act that every Nigerian should be grateful for. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as a ground to arrest people indiscriminately and has been deleted by the ACJ Act. Now, police cannot arrest persons in lieu of suspects[6], where actual arrest is carried out; a suspect is entitled to notification of cause of Arrest[7] and shall be accorded humane treatment, having regard to dignity of his person.[8]

Similarly, long gone is the era in which police dabble into civil matters or even simple contracts and use their power of arrest as a weapon to intimidate and oppress a lot of innocent Nigerians. By virtue of the ACJ Act, it is now illegal for the police to arrest persons over civil wrongs and contracts[9].

  1. Plea Bargain [10]

Under the Act, plea bargain means the process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval[11]. The Act empowers the prosecution to enter into plea bargain with the defendant, with the consent of the victim during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence. This provision of the law helps in quick dispensation of justice and saves the time and resources that would have been wasted in trial.

  1. Trial of Corporation [12]

In times past, a company could not be said to commit a crime as the law requires the presence of mens rea and actus reus to ground a charge of crime. Thus, this twin requirement has continuously shielded corporate entities from criminal liability over the years. However, by virtue of the provision of the Act,[13] a corporation can now be tried for criminal matters through its representative. A company is now treated as an adult ‘defendant’ ‘for any of­fence’ without exception[14].

  1. Suspended Sentence and Community Service [15]

The Act, in pursuance of its reformative and restorative approach, provided that a court, having regard to the need to reduce congestion in prisons; rehabilitate prisoners by making them to undertake productive work; and prevent convict who commit simple offences from mixing with hardened criminals may, with or without conditions, suspend a convict’s sentence in which case, the convict shall not be required to serve the sentence in accordance with the conditions of the suspension or the convict may be sentenced to specified service in his community or such community or place as the court may direct. Provided however, that the offence for which the convict was tried does not involve the use of arms or offensive weapon, or for an offence which the punishment exceeds imprisonment for a term of three years.

  1.     Speedy Trial

The ACJA in amplifying the provisions of the constitution to ensure speedy dispensation of justice makes the following provisions among others:

  1. Stay of proceedings[16]

The new position of the law now is that application for stay of proceedings shall no longer be heard in respect of a criminal matter before the court. This unprecedented provision puts a gag on the delays occasioned to the trial process by interlocutory applications to stay proceedings pending appeal on preliminary matters even when the substantive issues are yet to be tried on the merits.

  1. Day-to-day trial [17]

Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial. Where day-to-day trial is impracticable, the Act provides that parties shall be entitled to only five adjournments each. The interval between each adjournment, according to the Act, shall not exceed two weeks each. Where the trial is still not concluded, the interval for adjournments will be reduced to seven days each.

  1. Assignment of information and issuance of notice of trial [18]

By virtue of this section, information filed are to be assigned to courts by the Chief Judge within fifteen days and the Judge in turn, is to issue notice of trial within ten working days of the assignment of the information to his court.

  1. Objection to the validity of charge [19]

Any objection to the validity of the charge or information raised by the defendant shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement.

  1. Women Sureties [20]

This is one of the provisions of the Act that has been lauded the most. This is because it has finally laid to rest the long-standing controversy as to whether a woman can stand surety for a bail applicant. The law provides that “no person shall be denied, prevented or restricted from entering into any recognition or Standing as surety for any defendant or application on the ground only that the person is a woman”.[21]

  1.  Electronic Recording of Confessional Statements [22]

A number of criminal cases are bedevilled with denial of confessional statements. It is either the defendant is denying ever making the statement or alleging that the statement was made under duress or other such vitiating factors. This often leads the court to suspend trial of the substantive matter to conduct what is called trial within trial. This takes an awful length of time and even at times leads to the confessional statement being set aside. This is largely due to the fact that the confessional statements are merely in writing. The ACJA, in conformity with the provision of the Evidence Act 2011[23], now provides that a Confessional Statement may be made by means of an electronic recording in a retrievable video compact disc or such other audio-visual means[24].

  1. Prosecution of Offences

Another interesting feature of the Act is Section 106 of the Act which makes the prosecution of cases the exclusive preserve of lawyers. In effect, police personnel who are not lawyers have lost the right to prosecute. This provision has been said to impliedly suspend section 23 of the Police Act which empowers police officers to prosecute matters in court. This section also by extension, overrules the Supreme Court decision in FRN v Osahon (2006) 5 NWLR (Pt. 973). To a very large extent, this is a welcomed development because a lot of cases are being mismanaged in court by the police officers due to lack of diligent prosecution.

  1.  Remand Time Limit [25]

Our prison cells are jam-packed today not just because of the number of convicts serving actual jail terms, but largely because of a huge number of suspects been remanded in those prisons. Suspects are being remanded at will and sometimes indefinitely. However, by the provision of ACJA[26], a suspect shall not be remanded for more than 14 days at first instance and renewable for a time not exceeding fourteen days where “good cause” is shown. At the expiration of the remand order, if Legal Advice is still not issued, the court shall issue hearing note to the Inspector General of Police and Attorney General of the Federation or the Commissioner of Police or any other authority in whose custody the suspect is remanded to inquire into the position of things and adjourn for another period not exceeding fourteen days for the above mentioned officials to come and explain why the suspect should not be released unconditionally.

  1. Compensation to Victims of Crime

Generally in criminal matters where the defendant is found guilty of the alleged crime, the only ‘remedy’ was sentencing. Victims of crimes are often neglected and left without any form of compensation. The ACJA has however brought succor to victims of crime by broadening the powers of the court to award commensurate compensation in deserving cases to victims of crime[27].

Further, the Act provides that a court may, within the proceedings or when passing judgment, order the convict to pay compensation to any person injured by the offence, a bonafide purchaser for value, or for defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence[28].

This is a very commendable provision of the law in that it does not only seek to punish the offender, but also to ameliorate the hardship occasioned by the commission of the offence thus, serving justice in both ways.

Conclusion

By and large, the provisions of the Act are geared towards curing most of the anomalies and lacuna in the existing criminal laws. But as we all know, in Nigeria, the problem is always not with the law but with the implementation of the law. This new law is very progressive, timely and in conformity with international best practices and we sincerely hope that it will be well implemented to give life to the dream justice system that the legislators have in mind for Nigeria.

 

[1] Section 8(1) Administration of Criminal Justice Act, 2015

[2] Section 460(1) Administration of Criminal Justice Act, 2015

[3] Section 460(2) Administration of Criminal Justice Act, 2015

[4] Section 468 Administration of Criminal Justice Act, 2015

[5] Section 314; 319 Administration of Criminal Justice Act, 2015

[6] Section 7 Administration of Criminal Justice Act, 2015

[7] Section 6 Administration of Criminal Justice Act, 2015

[8] Section 8(1) Administration of Criminal Justice Act, 2015

[9] Section 8(2) Administration of Criminal Justice Act, 2015

[10] Section 270 Administration of Criminal Justice Act, 2015

[11] Section 494 Administration of Criminal Justice Act, 2015

[12] Section 477 Administration of Criminal Justice Act, 2015

[13] Section 477 Administration of Criminal Justice Act, 2015

[14] Section 484 Administration of Criminal Justice Act, 2015

[15] Section 460 Administration of Criminal Justice Act, 2015

[16] Section 306 Administration of Criminal Justice Act, 2015

[17] Section 396 Administration of Criminal Justice Act, 2015

[18] Section 382 Administration of Criminal Justice Act, 2015

[19] Section 396(2) Administration of Criminal Justice Act, 2015

[20] Section 167 (3) Administration of Criminal Justice Act, 2015

[21] Section 167 (3) Administration of Criminal Justice Act, 2015

[22] Section 15 (4) Administration of Criminal Justice Act, 2015

[23] Section 29 thereof

[24] Section 15 (4) Administration of Criminal Justice Act, 2015

[25] Section 296 Administration of Criminal Justice Act, 2015

[26] Section 296 thereof

[27] Section 314 Administration of Criminal Justice Act, 2015

[28] Section 319 (1) Administration of Criminal Justice Act, 2015

Source: Lawpavillion

Nigerian Copyright Commission Must Give Approval for a Collecting Society to Operate Legally

NIGERIAN COPYRIGHT COMMISSION & 4 ORS v. MUSICAL COPYRIGHT SOCIETY OF NIGERIA LIMITED & 4 ORS

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; GEORGEWILL; TUKUR, JJ.CA)

The 1st respondent is a Nigerian company incorporated to engage in negotiating copyright licensing and related matters. The 2nd to 5th respondents are officers of the 1st respondent. The 1st appellant which is an agency of the Federal Government vested with statutory powers over copyright works and intellectual property matters effected the arrest and detention of the 2nd to 5th respondents after it received a petition from the International Federation of Phonographic Industry (IFPI) alleging that the 1st respondent was infringing on the rights of its members by authorizing the reproduction of their works without the consent of the owners of the copyright works which is an offence under the Copyright Act. The appellants sent the petition to the 1st respondent who did not immediately respond to the allegations contained in the petition. The 1st appellant thereafter commenced investigation on the petition and found that the 1st respondent was in fact infringing on the copyrights as alleged. It was also discovered in the course of the investigation that the 1st respondent was carrying on business as a collecting society without the requisite approval of the 1st appellant as required by the Copyright Act, which is also an offence under the relevant law.

Consequently, the 1st appellant directed its operatives to arrest the 2nd to 5th respondents who were officers of the 1st respondent at the material time. The officers of the 1st appellant also seized some properties belonging to the 1st respondent and after their statements were taken, the 2nd to 5th respondents were released by the 1st appellant. The respondents were aggrieved and filed an action at the Federal High Court, Lagos Division alleging violation of their fundamental right to personal liberty. They alleged that the 1st appellant was in the habit of frequently arresting and detaining them and filing spurious charges against them in court which were eventually dismissed for lack of diligent prosecution. After hearing the parties on their applications, the trial judge gave judgment in favour of the respondents and ordered the appellants to pay damages of N20, 000,000. 00 (Twenty Million Naira) to the respondents. The appellants were dissatisfied with the judgment of the trial court and filed a notice of appeal at the Court of Appeal, Lagos Division urging the court to overrule and set aside the judgment of the trial court. One of the issues raised for determination is whether the 1st respondent as a collecting society can legally operate without the approval of the 1st appellant.

Arguing the issue, Learned Counsel for the appellants submitted that the trial court was wrong to have held that section 39 of the Copyright Act which requires the 1st respondent to obtain the 1st appellant’s approval before operating as a collecting society is a violation of the Constitution of the Federal Republic of Nigeria. More so, that this was not an issue before the lower court and that the court failed to state the section of the Constitution that was violated. Learned Counsel further argued that section 39 of the Copyright Act has nothing to do with acquisition of property and that the position of the court that the respondents as owners, assignees and exclusive licenses do not need the approval of the Appellant to perform the duties of a collecting society is not a valid interpretation. Learned Counsel cited section 52(3) of the Copyright Act 2004 and Gamioba and Ors. v. Esezi and Ors. Learned Counsel urged the court to resolve the issue in favour of the appellant.

Responding to the arguments of the appellants, Learned Counsel for the respondents submitted that the exclusive license enjoyed by the 1st respondent was brought about by an agreement executed in 1990 which was not affected by the provisions of Section 39 of the Copyright Act 2004 and that the existing law on copyright before the promulgation of the Copyright Act did not criminalize the hitherto acquired rights of the 1st respondent more so that by the Transitional and Savings Provisions of the Copyright Act, the 1st respondent is expected to continue to enjoy the property right. Anything contrary to that will reveal the unconstitutionality of section 39 of the Copyright Act by retrospective effect. Counsel relied on Adesanya v. Adewole and Afolabi v. Gov. of Oyo State and urged the court to discountenance the argument of the appellants and resolve the issue in favour of the respondents.

In resolving the issue, the court held thus:

So, is the approval of the Nigerian Copyright Commission required by a body of persons carrying on the functions of a collecting society to institute an action in court for the enforcement of infringement of copyright and matters incidental thereto? Upon a calm but holistic scrutiny of the above provisions of the Copyright Act and all other relevant provisions of the said Act and regulations made under and pursuant to it, I think so. In my finding the 1st Respondent and its Officers, Staff and or Agent, undoubtedly carrying on the functions of a collecting society required the approval or the 1st Appellant to so operate as a collecting society in Nigeria, failing which their activities thereto are illegal. See Sections 16, 17 and 39 of the Copyright Act 2004.

In law therefore, an Association of Copyright Owners, referred to as Collecting Society, which may be formed upon the satisfaction of the conditions provided for under the Act, require by law by virtue of Sections 17 and 39 of the Copyright Act the approval of the Copyright Commission to operate as Collecting Society in the first place, in which capacity only they could sue under the Copyright Act and therefore, the approval of the Nigeria Copyright Commission is a condition precedent to their operation as Collecting Society and without which they would lack the legal standing to sue under the Copy Right Act 2004 of which the 1st Respondent is undoubtedly a collecting society. See Section 39 of the Copyright Act 2004. See also Compact Disc Technologies Ltd v. MCSN Ltd/GTE (2010) LPELR (CA).

Now, does the 1st Respondent being a Collecting Society of which the 2nd – 5th Respondent are its Officers, Staff and or Agents, require the approval of the Nigeria Copyright Commission, the 1st Appellant to operate and if need be to institute the Suit against the Appellants by virtue of Sections 17 and 39 of the Copyright Act 2004? On a proper construction of the provisions of Sections 17 and 39 of the Copyright Act 2004 it does appear so to me and I so hold that it is a requirement of the Copyright Act 2004 that for a Collecting Society to commence operation it would require the approval of the Nigerian Copyright Commission to so do.

Issue resolved in favour of the appellants.

Counsel:
Obi Ezeilo Esq., with Mrs. Lynda Alphaeus for the Appellants
Olumide Ekisola Esq., with Mrs. Vivian Ayo-Okhiria for the Respondents

This summary is fully reported at (2017) 11 CLRN
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Limitation Laws Do Not Apply to Debts Owed to A Failing or Failed Financial Institution – Court of Appeal

POATSON GRAPHIC ARTS TRADE LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; ABUBAKAR; OGAKWU, JJ.CA)

The 1st appellant was a customer of the defunct Trade Bank Plc. which gave certain facilities to the 1st appellant secured by a deed of legal mortgage. The 1st appellant alleged that Trade Bank failed to administer the facilities properly; and consequently initiated an action against it at the High Court of Lagos State seeking inter alia, a declaration that the defunct Trade Bank Plc. was not entitled to enforce its rights of sale under the legal mortgage after the 1st appellant defaulted in repayment of the facilities. The matter was still pending in court when the respondent was appointed as the liquidator of the defunct bank which was already in distress. Thus, the respondent was substituted in the action against the 1st appellant. With the leave of court, the respondent amended the existing statement of defence and incorporated a counterclaim which for the first time brought the 2nd appellant into the matter. The appellants responded to the counterclaim of the respondent by filing a defence and a counter claim. After being served with the defence of the appellants and the counterclaim, the respondent filed an application urging the court to dismiss the counterclaim of the appellants for being statute barred on the ground that the cause of action upon which the counterclaim of the appellants was predicated arose in 1997 and 1998 and therefore could not be litigated in 2009. On the 30th of September, 2014 the lower court delivered its ruling on the application of the respondent and dismissed the counterclaim of the appellants. The appellants were dissatisfied with the court’s ruling and filed a notice of appeal at the Court of Appeal, Lagos Division. One of the issues raised in the appeal is whether the learned trial judge was correct in his decision that the appellants’ counterclaims were statute barred.

Arguing the issue, learned counsel for the appellant contended that the lower court ought to have applied the provisions of Section 3 of the Limitation Law, Cap L67, Volume 5, Laws of Lagos State, 2003 to hold that the appellants’ counterclaims were not statute barred rather than resorting to Section 8 of the Limitation Law. Learned counsel contended that Section 3 is a special provision while Section 8 is a general provision and that a general clause does not extend to those things which are specially provided for. Learned counsel cited the cases of FMBN v. Olloh and Schroder v. Major in support of the maxim generalis clausula non porrigitur ad ea quae ante specialiter sunt compretiensa; (a general clause does not extend to those things which are before specially provided for). It was stated that the lower court was in error, which occasioned a miscarriage of justice, by rejecting Section 3 of the Limitation Law which deals specifically with counterclaims and applying Section 8 which generally deals with fresh actions. Furthermore, Learned Counsel submitted that by Section 3 of the Limitation Law, a counterclaim is deemed to have been commenced on the same date as when the action was commenced. It was suggested that the respondent’s counterclaim though filed in 2009, is by virtue of its being a counterclaim, and in accordance with Section 3 of the Limitation Law, deemed to have been commenced in 1998 when the suit was commenced. Therefore, the appellants’ counterclaims to the respondent’s counterclaim though filed in 2014 and 2012 respectively is deemed in the eyes of the law by virtue of the said section 3 to have been commenced in 1998. It was therefore posited that since the 1st appellant’s cause of action in the amended counterclaim accrued in 1998 and the 2nd appellant’s cause of action accrued at the latest in 1996, their counterclaims, deemed commenced in 1998, are therefore not statute barred. Learned Counsel urged the court to resolve the issue in favour of the appellants.

Responding to the argument of the appellants, Learned Counsel for the respondent contended that section 3 of the Limitation Law is inapplicable to the appellants’ counterclaims that were already statute barred and that for purposes of the limitation of action, a cause of action arises where there is a person who can sue and another who can be sued. Learned Counsel stated that the 2nd appellant only became a party in the suit in 2012 and could not have been deemed to have commenced a counterclaim in 1998, when it was not yet a party in the suit.

The respondent’s Counsel submitted that Section 3 of the Limitation Law is inapplicable to save the appellants’ counterclaims that were already statute barred. It was stated that for purposes of limitation, a cause of action arises where there is a person who can sue and another who can be sued. It was stated that the 2nd appellant only became a party in the suit in 2012 and could not have been deemed to have commenced a counterclaim in 1998, when it was not yet a party in the suit. It was also submitted that the 1st appellant’s counterclaim was for libel, which cause of action accrued in 1998 with a limitation period of three years; while the 2nd appellant’s counterclaim was in contract, which cause of action accrued between 1993 and 1996 with a limitation period of six years and therefore there was no way the cause of action which arose at different times and were filed at different times could be deemed to have been commenced together. Learned Counsel further contended that even though the respondent’s counterclaim may have been statute barred, it was rescued by the provisions of section 44 of the Nigerian Deposit Insurance Corporation Act (NDIC Act), a provision which does not apply in favour of the appellants. Learned Counsel cited UBA Plc v. Abdullahi to support his argument that by virtue of section 44 of the NDIC Act, its counterclaim is not statute barred, even though the limitation period had long expired. Learned Counsel urged the court to discountenance the argument and authorities cited by the appellants as being inapplicable and resolve the issue in favour of the respondent.

In resolving the issue, the court held thus:

The crux of the appellants contention is hinged on the legal principle generalis specialia derogant (special things derogate from general things). The appellants posit that the special provision of limitation period as it relates to a counterclaim in Section 3 of the Limitation Law overrides the general provision as it relates to a fresh action as set out in Section 8 of the Limitation Law. In Maxwell on Interpretation of Statutes (11th Ed.) page 164, it is stated that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. See Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt 91) 622, Schroder v. Major (supra) and FMBN v. Olloh (supra). It is on this premise that the appellants maintain that Section 3 of the Limitation Law was applicable and that their counterclaims to the counterclaim of the respondents consequently dates back to 1998 when the action was commenced since the counterclaim of the respondent though filed in 2009 also dated back to 1998. The basis of this contention is the appellants’ presumption that the provisions of the Limitation Law apply to the respondent’s counterclaim, such that it can be said to have been filed in 1998 in order for the counterclaims to counterclaim to also take benefit of Section 3 of the Limitation Law and be deemed to have been filed in 1998. The provision of Section 3 of the Limitation Law is relevant. It provides:

            “3.       Set-off and Counterclaim

For the purposes of this Law, any claim by way of set-off or counter-claim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counter-claim is pleaded.”

The above provision is explicit and admits of no ambiguity in its stipulation that a counterclaim for purposes of the Limitation Law is deemed to have been commenced on the same date as the action in which the counter-claim is raised. So on the face of it, it would appear that Section 3 would apply to the appellants’ counterclaims for it to be deemed as having been commenced on the same date as the respondent’s counterclaim, which by the said provision would relate back to 1998 when the action was filed. But there is a caveat, and a big one at that. This shall only be so if the respondent’s counterclaim was filed pursuant to the provisions of Section 3 of the Limitation Law, or put differently, if the Limitation Law applied to the respondent’s counterclaim as to give it its validity. Where it does not, then totally different considerations would apply.

It is in this wise, that the provisions of Section 44 of the NDIC Act come into play. It reads:

“44.     The provisions of the Limitation Law of a State or the Limitation Act of the Federal Capital Territory shall not apply to a debt owed to a failing or a failed insured institution.”

The above provision-is clear that the Limitation Law does not apply to the respondent’s counterclaim. The effect of this therefore is that by the provision, the respondent’s counterclaim to recover the debt owed Trade Bank Plc by the appellants cannot become statute barred, the effective commencement date for the counterclaim is when it was filed as it cannot be deemed to have been commenced when the main action was commenced because the provision of Section 3 of the Limitation Law which provides for that does not apply to the respondent’s Counterclaim.

Issue resolved in favour of the respondent.

Andrew Igboekwe, Esq., SAN with Miss Ogochukwu OfiIi & Mrs. Damilola Ajayi for the Appellants.
Layi Babatunde, Esq., SAN with J. O. Akolade, Esq., Opeoluwa Akinosi, Esq., Miss Tomike Layi-Babatunde & David Owoeye, Esq., for the Respondent.

This summary is fully reported at (2017) 11 CLRN
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The Tax Appeal Tribunal Has Jurisdiction to First Hear and Determine Tax Assessment Appeals

Tax Litigation concept

CNOOC EXPLORATION AND PRODUCTION NIGERIA LIMITED & ANOR v. NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; OGAKWU; TUKUR, JJ.CA)

The appellant and 1st respondent are parties to a Production Sharing Contract (PSC) concerning an Oil Mining Lease (OML) 130 over a Contract Area (the Contract Area) in which another company, Total Upstream Nigeria Limited is the Operator of the Contract Area. In accordance with the PSC, Total Upstream Nigeria Limited prepared the Petroleum Profits Tax (PPT) returns for the 2010 accounting year in respect of the Contract Area and sent same to the 1st respondent for filing with the 2nd respondent. However, the 1st respondent failed to file the returns and instead unilaterally prepared and filed another returns with the 2nd respondent. Relying on the returns filed by the 1st respondent, the 2nd respondent assessed the Contract Area for the purpose of Tertiary Education Tax and served the Notice of Assessment on the appellants in October, 2011.

The Operator on behalf of the appellants filed a Notice of Objection challenging the Notice of Assessment on the ground that it believed that it was incorrectly prepared. After receiving the Notice, the 2nd respondent replied by sending a letter to the Operator stating that the objection had been “noted for memorandum purposes only”. The appellants, being dissatisfied with the response, filed an appeal to the Tax Appeal Tribunal on the ground that the assessment was wrong. After being served, the 2nd respondent challenged the appeal on several grounds one of which was that the appellant lacked the locus to appeal to the Tax Appeal Tribunal since the returns were not filed by the appellants but by the 1st respondent and that non-joinder of the 1st respondent rendered the appeal incompetent. The Tax Appeal Tribunal in its ruling delivered in June, 2012 dismissed the objection of the 2nd respondent and went ahead to join the 1st respondent in the matter.

After being served with the joinder, the 1st respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the Tax Appeal Tribunal to hear and determine the appeal on grounds which bordered mainly on the allegation that the claims before the Tax Appeal Tribunal were connected with taxation of companies carrying on business in the Federal Republic of Nigeria, and as such only the Federal High Court has the jurisdiction to the exclusion of any other court to entertain the matter. In its ruling of February 2013, the Tax Appeal Tribunal held that it has the requisite jurisdiction to entertain the appeal while striking out the 1st respondent. The 1st respondent was dissatisfied with the ruling and consequently filed a Notice of Appeal at the Federal High Court, Lagos Division urging it to overrule the Tax Appeal Tribunal.

After hearing the parties, the Federal High Court Judge gave his ruling on the 22nd of May 2015 in which it held that the appellant had no locus standi to initiate the appeal and that the Tax Appeal Tribunal lacked jurisdiction to entertain the appeal as the subject matter is connected with the taxation of a Nigerian company which is an exclusive duty of the Federal High Court. The court also held that the non-joinder of the 1st respondent was fatal as it strips the Tax Appeal Tribunal of jurisdiction to hear the appeal. The appellants became aggrieved and filed a Notice of Appeal at the Court of Appeal, Lagos Division. One of the issues raised for determination was whether the jurisdiction of the Tax Appeal Tribunal to entertain the appellants’ appeal infringed on the exclusive jurisdiction of the Federal High Court to hear tax disputes as stipulated under section 251 of the Constitution of the Federal Republic of Nigeria, 1999.

Arguing the issue, Learned Senior Counsel for the appellant submitted that the Tax Appeal Tribunal has the jurisdiction to entertain the tax appeal because the Federal Inland Revenue Service Act, which established the Tax Appeal Tribunal does not encroach on the exclusive jurisdiction of the Federal High Court. Learned Senior Counsel further argued that the Tax Appeal Tribunal is an administrative body and that its proceedings is a condition precedent to the assumption of jurisdiction by the Federal High Court. Counsel relied on section 251(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Federal Inland Revenue Service (Establishment) Act, 2007; Eguamwense v. Amaghizemwen. Learned Senior Counsel further contended that the Tax Appeal Tribunal was not created to be a court but to be deemed as functioning like a civil court. Learned Senior Counsel cited Paragraphs 1(1) and 20(3) of the Fifth Schedule to the Federal Inland Revenue Service Act, 2007; Orji v. Dorji Textile Mills. Reliance was also placed on the decision in Nigerian National Petroleum Corporation v. Tax Appeal Tribunal and 3 Ors to submit that the Tax Appeal Tribunal is not a court. Counsel urged the court to resolve the issue in favour of the appellant.

Responding to the argument of the appellant, Learned Senior Counsel for the Respondents submitted that the Tax Appeal Tribunal does not have the jurisdiction to hear and determine tax appeals and that once a court is clothed with exclusive jurisdiction, other courts are precluded from exercising original jurisdiction over the matter. Learned Senior Counsel cited section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria and the cases of Buhari v. INEC and Oyeniran v. Egbetola. Learned Senior Counsel further submitted that the Tax Appeal Tribunal was deemed to be a Civil Court by the National Assembly and that it was placed in the same category with courts mentioned in section 6(5)(j) of the 1999 Constitution. Counsel also argued that by the clear wording of Paragraph 20(3) of the Fifth Schedule to the FIRS Act, the Tax Appeal Tribunal is to be treated as a civil court for the purposes of exercising jurisdiction in respect of disputes arising out of tax laws, which pertain to taxation of companies in Nigeria, tax payable to the FIRS, an agent of the Federal Government. Learned Senior Counsel also relied on Nospecto Oil and Gas Ltd v. Olorunnimbe to argue that the provisions of the FIRS Act, no matter how laudable and practicable, cannot override the provisions of the Constitution donating exclusive jurisdiction to the Federal High Court in respect of revenue of the Federal Government, taxation of companies and issues involving Federal Government agencies. Counsel urged the court to discountenance the argument of the appellants and resolve the issue in favour of the respondents.

In resolving the issue, the court held thus:

Now in Shell Nig. Exploration and Production & Ors v. FIRS & Anor, this Court at page 38 held thus:

“The procedure for resolving claims and objections such as in the instant matter, are spelt out. When an assessment is made and the party is not satisfied, it can serve a Notice of Objection with the FIRS. It can also file a notice of refusal to amend the assessment as desired where it disagrees with FIRS. The party may also then appeal against the assessment to the Tax Appeal Tribunal. If the party is still dissatisfied with the decision of the Tax Appeal Tribunal, then it can approach the Federal High Court, the Court of Appeal and the Supreme Court.”

The above recognition of the Tax Appeal Tribunal by this Court as a vital step towards the resolution of tax related disputes shows that the Tax Appeal Tribunal has jurisdiction over such matters.

The facts of the case of Esso v. NNPC contained in the certified true copy presented to this Court by learned senior counsel to the Appellants, are also relevant to this instant one, as the facts in issue there also revolved around petroleum profit tax and education development tax arising from a production sharing contract. In that case, this Court at page 11 of the CTC of the judgment, wholly approved the procedure prescribed by the petroleum profit Tax Act, which includes an appeal to the Tax Appeal Tribunal. This Court then went on to hold at page 12 thus.

“It must also be stated that Section 251(1)(b) of the Constitution of Nigeria 1999 as amended gives exclusive jurisdiction to the Federal High Court in civil causes and matters connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation. It may be added that in respect of the petroleum profit tax, it is after the exhaustion of remedies or the process set out in (i) (ii) and (iii) above that a person may approach the Federal High Court”.

Part of the process referred to by this Court above, is an appeal to the Tax Appeal Tribunal. In essence, the combined effect of the aforementioned decisions is that the Tax Appeal Tribunal has jurisdiction to entertain tax matters such as in the instant case.

Issue resolved in favour of the appellants.

A. Tunde Oluwo with Berenibara and A. Adewusi for Appellants
Chidimma Okoronkwu for 1st Respondent
Oladapo Akihaosun with A. Jolaoso and O. Omeyele Miss for 2nd Respondent.

This summary is fully reported at (2017) 10 CLRN
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