IN THE TAX APPEAL TRIBUNAL
NORTH CENTRAL ZONE
HOLDEN AT JOS
ON THURSDAY 19TH OCTOBER, 2023
APPEAL NO. TAT/NCZ/001/2023
BEFORE:
HON. RICHARD UMAR BALA---------------------------------- CHAIRMAN/COMISSIONER
HON. ZAIDU ABDULLAHI--------------------------------------- COMMISSIONER
HON. UKERA SEUNGWA EMMANUEL---------------------- COMMISSIONER
HON. OGBAENYI IVAN CHIKWENDU------------------------ COMMISSIONER
HON. SAIDU AHMED-------------------------------------------- COMMISSIONER
BETWEEN:
PLATEAU STATE INTERNAL REVENUE SERVICE………………………..APPELLANT
AND
REMUS PRIVATE SCHOOL………………………………………………………..RESPONDENT
JUDGMENT
The Appellant by way of application for Summary Judgment, pursuant to Order XVI Rule I of the Tax Appeal Tribunal (Procedure) Rules, 2021 commenced this action dated 22nd day of March 2023 but filed on 27th March, 2023. By the Notice of Appeal the Appellant sought for the following reliefs;
1. An order of the Honourable Tribunal for summary Judgment in favour of the Appellant against the Respondent in sum of N 4, 230,197.89. (Four Million, Two Hundred and Thirty Thousand One Hundred and Ninety Seven Naira, Eighty Nine Kobo, only).
2. AN Order directing the Respondent to pay the said sum alongside 10% post Judgment interest from the day of Judgment until final liquidation.
By the application for summary judgment dated 22nd March 2023 but filed on the 27th March 2023, the Appellant’s case as stated in ground I of the Notice of Appeal is that on the 1st day of March, 2022 the Appellant notified the Respondent of its intention to audit the tax records of the Respondent with regards to 2016 to 2021 tax years, pursuant to Sections 47 (4) and 55 (1) of the Personal Income Tax Act and requested the respondent to furnish it with the required records.
The Respondent wrote back through its tax consultant stating why it could not furnish the Appellant with the records to which the Appellant was dissatisfied with the reason and wrote a letter on the 1st of April, 2021 giving the Respondent 7 days ultimatum within which to supply the documents otherwise the Appellant shall apply the Best of Judgment (BOJ) Assessment. The Appellant after auditing the records of the respondent, established a tax liability of N4, 230,197.89. (Four Million, Two Hundred and Thirty Thousand, One Hundred and Ninety Seven Naira, Eighty Nine Kobo only) and same was communicated to the Respondent. The liability consists of PAYE, Staff Development Levy and other components.
The Respondent upon service of the Demand Notice, failed to liquidate same and did not file any objection within the time provided for under the enabling law. Again the Appellant wrote another Demand Notice on the 8th of November 2022 which the Respondent failed to liquidate. Above is the scenario culminating to the Appellant bringing this application for Summary Judgment seeking for reliefs as stated earlier.
The Respondent upon being served with the application for Summary Judgment did not file any Notice of Intention to defend as required by the Rules of this Tribunal.
This matter is filed pursuant to Order 16 Rule 1 of the Tax Appeal Tribunal (Procedure) Rules, 2021. The matter came up on the 30th day of May 2023 with N.R. Bakyil representing the Appellant and Rotimi George representing the Respondent. Parties through their respective counsels informed the tribunal that they were discussing settlement and the matter was adjourned to 27th June 2023 for report of settlement. On the 27th day of June, 2023, counsels informed the tribunal that they were still discussing settlement and the matter was further adjourned to 18th July, 2023 for report of settlement. On the 18th of July, 2023 counsels informed the tribunal that they had agreed that the Respondent should pay the undisputed tax liability in the sum of N1,815,909.94 (One Million, Eight Hundred and Fifteen Thousand, Nine Hundred and Nine Naira, Ninety Four Kobo). After this, parties through their counsels agreed that the matter be adjourned to 12th September 2023 for definite report of settlement or hearing, It is noteworthy that during these adjournments the Respondent did not file Notice of Intention to Defend with the requisite affidavit showing defense on the merit.
At the resumed sitting of the tribunal on 12th September, 2023, the Appellant was in court but there was no representation for the Respondent and no explanation was given for their absence. N.R. Bakyil Esq, counsel for the Appellant informed the tribunal that settlement had failed and they were ready to proceed under the Summary Judgment procedure. The tribunal after going through the records allowed counsel for the Appellant to proceed.
Counsel submitted that it is an application for Summary Judgment brought pursuant to Order XVI Rule 1 of the Tax Appeal Tribunal (Procedure) Rules, 2021.That the application is predicated on 5 grounds of Appeal and seeks for reliefs as contained on pages 3 and 4 of the application. That the application is supported by a 14 paragraph Affidavit with 9 Exhibits marked “SA1 to SA9”. Counsel relied on the written address in urging the Tribunal to enter Judgment for the Appellant. Appellant’s counsel also adopted its written address and urged the Tribunal to grant the application for Summary Judgment based on the facts as contained in the affidavit evidence.
ISSUE FOR DETERMINATION:
To our minds, the sole issue for determination is;
“Whether the Appellant has provided sufficient materials to be entitled to Judgment under the Summary Judgment procedure”.
The Tribunal having gone through the processes filed and the submission of the learned Counsel for the Appellant in a bid to do justice to the matter, shall do a review of the provisions of Order XVI Rule 1 of the Tax Appeal Tribunal (Procedure) Rules, 2021.
The application for Summary Judgment is akin to what is obtainable in the High Courts of Justice (Civil Procedure) Rules which is known as the “Undefended List Procedure”, obtainable under the High Court (Civil Procedure) Rules or Summary Judgment in Lagos State. Order XVI Rule 1 of the Tax Appeal Tribunal (Procedure) Rules, 2021 provides thus.
“Where an aggrieved party intends to file an appeal in respect of a claim to recover a debt or liquidate money demand to which he believes there is no defense thereto, he shall file a Notice of Appeal as in Form TAT 8 with an affidavit setting forth the grounds upon which the claim is based and stating that in the appellant’s belief there is no defense thereto; and the tribunal shall, if satisfied that there are no grounds for believing that there is no defense thereto, enter the appeal for hearing under the summary appeal procedure."
From the provisions of this Order, the purpose of the procedure is to speed up trial and ensure quick disposal of cases. Like we have stated earlier, this rule is like the Undefended List procedure in the State High Courts and Federal High Courts. The Supreme Court in the case of NPA vs. Aminu Ibrahim & Co. (2013) 2 NWLR Part 1632, page 62 at 89 stated thus;
“The procedure under the undefended list is designed to prevent delay in cases. Where the plaintiff has a clear case and the defend has no defence ,so where the plaintiff satisfies the court with affidavit evidence which the defendant cannot answer, the court would enter judgment for the plaintiff thereby avoiding a full trial, expenses, frustration and delays. On the other hand, if the defendant files an affidavit which discloses a defense on the merit, the defendant would be granted leave to defend by the court. The procedure prevents worthless and sham defence..."
In the instant case, the Appellant filed a Notice of Appeal accompanied by an affidavit of 14 paragraphs deposed to by one Yong’an Dashe Dasogot, accompanied by 9 Exhibits marked “SA1 to SA9”. From the affidavit evidence, it is glaring that the claim is for liquidated money demand bordering on PAYE, Development Levy, Withholding Tax, penalty and interest. See paragraphs 5, 6 and 7 of the application for Summary Judgment.
It is noteworthy by the provisions of Order XVI (2) of the Tax Appeal Tribunal (Procedure) Rules, 2021 which provides as follows;
“A Respondent served with a Notice of Appeal under Summary Appeal Procedure shall if he intends to enter a defence, file a Notice of intention to defend supported by an affidavit setting forth the grounds of his defence with relevant documentary evidence and a written address, within 7 days from the date of service of the Notice of Appeal on him".
It is instructive from the records of the tribunal that the Respondent was duly served with the application for Summary Judgment and the respondent appeared before the tribunal without filing the Notice of intention to defend within 7 days as required by the Rules. From the foregoing, the tribunal has no difficulty in coming to the conclusion that the Respondent has no defence to the case of the Appellant, having failed to file a Notice of intention to defend within 7 days as prescribed by Order XVI Rule 2 of the Tax Appeal Tribunal (Procedure) Rules, 2021.
We had earlier alluded to the attitude of the Respondent, particularly on the 12th September 2023 when the matter came up for hearing or report of settlement. Neither the Respondent nor their counsel were in court for the Tribunal’s Hearing and no reason was given for their absence. The law is settled in a Summary Judgment of this nature that when a date is fixed for hearing, the business of the day is to determine the claim. See Onadeko v. U.B.N Plc. 2005 4 NWLR Pt. 916 p440 at 467 – 468.
From the processes filed and the written address of the counsel, the tribunal had an insightful reading of Order XVI Rules 1 and 2 and Judgment is hereby entered for the Appellant in the sum of N4, 230,197.89. (Four Million, Two Hundred and Thirty Thousand, One Hundred and Ninety Seven Naira, Eighty Nine Kobo only).
The Appellant’s claim for 10% post judgment interest is however refused. The Appellant failed to provide in its affidavit evidence the premise upon which the post judgment interest at the rate claimed is based. The law is that in Summary Judgments of this nature, claim for interests on liquidated money demands must be based on affidavit evidence that provides the basis for such interest rate claimed otherwise same must be subjected to trial. See Nigerian Postal Service v. Zaadeco Limited (2006) 7 NWLR Pt. 979.
The Respondent is ordered to pay the Appellant the judgment sum of N4, 230,197.89. (Four Million, Two Hundred and Thirty Thousand, One Hundred and Ninety Seven Naira, Eighty Nine Kobo only) within 30 days from the date of this judgment.
This shall be the Judgment of this Honourable Tribunal. We so hold.
SIGNED
HON. RICHARD UMAR BALA
(CHAIRMAN)
SIGNED SIGNED
HON. ZAIDU ABDULLAHI HON. UKERA EMMANUEL
(COMMISSIONER) (COMMISSIONER)
SIGNED SIGNED
HON. OGBAENYI I. CHIKWENDU HON. SAIDU AHMED.
(COMMISSIONER) (COMMISSIONER)
Dated Thursday 19th October, 2023.