IN THE TAX APPEAL TRIBUNAL
IN THE NORTH – WEST ZONE
HOLDEN AT KADUNA
Appeal No. TAT/NWZ/KD/CIT/007/23
BEFORE THEIR HONOURS:
UMAR M. ADAMU - CHAIRMAN
KABIRU ISA DANDAGO - COMMISSIONER
BAYERO A. S. MUHAMMAD - COMMISSIONER
SAMEERAH ABUBAKAR GWANDU (MRS.) - COMMISSIONER
AHMED M. KUMSHE - COMMISSIONER
BETWEEN:
FEDERAL INLAND REVENUE SERVICE - APPELLANT
AND
AG GLOBAL GOLDEN SERVICE LTD. - RESPONDENT
JUDGEMENT
By Notice of Appeal brought under the Summary Appeal Procedure dated 14th June, 2023 and filed on 26th June, 2023, the Appellant being dissatisfied with the failure and refusal of the Respondent in this matter to pay its Tax liabilities Assessments for the 2014 to 2019 Years of Assessment appealed to this Honourable Tribunal seeking the following Reliefs:
1. An Order directing the Respondent to pay the sum of N162,510.82 (One Hundred and Sixty-two Thousand, Five Hundred and Ten Naira, Eighty-Two Kobo) only representing Companies Income Tax.
2. An Order of this Honourable Tribunal to pay the sum of N789,749.82 (Seven Hundred and Eighty-nine Thousand, Seven Hundred and Forty-Nine Naira, Eighty-Two Kobo) only representing Education Tax.
3. An Order of this Honourable Tribunal directing the Respondent to pay the sum of N1,178,613.42 (One Million, One Hundred and Seventy-eight Thousand, Six Hundred and Thirteen Naira, Fourty-Two Kobo) only representing Value Added Tax.
4. An Order of this Honourable Tribunal directing the Respondent to pay to the Appellant the cumulative sum of N2,130,874.06 (Two Million, One Hundred and Thirty Thousand, Eight Hundred and Seventy-four Naira, Six Kobo) only representing the total outstanding liabilities against the Respondent.
The Notice of Appeal was supported by the following documents:-
a. An eleven – paragraph Affidavit deposed to by one Muhammad Dahiru Garba dated 14th June, 2023.
b. A Written Address and,
c. A list of Exhibits.
Summary of Facts on Appeal
The Appellant in this matter is a statutory body established under the Federal Inland Revenue Service (Establishment) Act 2007 and vested with the power to, inter alia, administer all Tax Legislations listed in the First Schedule of the Act and as provided under section 2, thereof.
The Appellant is also empowered under the Act to do such things as may be necessary and expedient to the proper assessment, collection, enforcement and recovery of taxes on goods and services and account for the entire amount collected by the Government of the Federal Republic of Nigeria.
On the other hand, the Respondent is a Limited Liability Company under the Companies and Allied Matters Act and engages in taxable business in Nigeria.
The Respondent is duly registered for tax purposes with the Appellant with Tax Identification Number (TIN) 04276398-0001.
In exercise of its powers, the Appellant conducted an audit exercise, at the end of which issued and served the Respondent Notice of Assessment vide letter dated 6th July, 2022. Several other Notices of Assessment were also sent to the Respondent.
The Respondent neither raised any objection to the various demand notices nor appealed against same.
It was consequent upon the Respondent’s posture and disposition that the Appellant filed this action before the Tribunal.
Proceedings
The Respondent was absent and unrepresented when the matter came up for mention on 22nd August, 2023. This was notwithstanding the fact that he was duly served with the hearing notice.
The Respondent was also absent and unrepresented at the resumed sitting of the Tribunal on 20th September, 2023.
Learned Counsel for the Appellant applied to move his pending Application which was properly filed before the Tribunal as the Respondent decided not to appear in-spite of being properly and duly served.
In moving his Application, Learned Counsel informed the Tribunal that his Notice of Appeal was brought under the Summary Appeal Procedure, pursuant to Order XVI Rule 1 of the Tribunal Rules 2021.
Counsel relied on all the documents as filed and adopted his Written Address as his legal argument in support of the Application and humbly urged the Tribunal to grant the Application as per the Reliefs sought therein in the cumulative sum of N2,130,874.06 (Two Million, One Hundred and Thirty Thousand, Eight Hundred and Seventy-four Naira, Six Kobo) only representing the total tax liabilities of the Respondent in the matter.
THE WRITTEN ADDRESS
In the Written Address, Learned Appellant Counsel submitted that the action was brought under the Summary Appeal Procedure pursuant to Order XVI of the Tax Appeal Tribunal (Procedure) Rule 2021, where the Appellant sought for an Order of this Honourable Tribunal to enter Judgement in favour of the Appellant and against the Respondent in the total amount of money claim.
In adopting his Written Address the Learned Appellant Counsel marshaled the following two issues for determination.
i. Whether the Appeal can be treated under the Summary Trial Procedure?
and
ii. Whether the Appellant is entitled to his claim?
In arguing the first issue, Learned Appellant Counsel, relied on Order XVI Rule 1 of the Tribunal Rules 2021 and submitted that the posture of the Respondent is a clear indication of the fact that the Respondent has no defence to the action and therefore the Appellant is entitled to Judgement in the total amount of liability outstanding against the Respondent, without recourse to full trial.
To prove this position, Learned Appellant Counsel referred the Tribunal to the case of EFFIONG V ROGERS (2003) ALL FWLR part 1512 page 1062 – 1063 where the court held that:-
“To bring an action under the Undefended List Procedure it is a sine-quo-non condition, that the claim must be in respect of a debt or liquidated money demand otherwise it cannot be brought under the undefended list procedure.”
He submitted that the claim is for liquidated money demand and therefore urged this Honourable Tribunal to resolve this in favour of the Appellant.
Learned Appellant Counsel submitted further that considering the facts and the circumstances of this suit as deposed to in the affidavit in support, the Respondent has neither real nor good defense to the Appellant’s claim and should therefore not be allowed to stop the Appellant from obtaining Judgement.
Learned Appellant Counsel also submitted that since the Respondent has neither raised an objection to the Assessment nor filed an appeal against it, the assessment is final and conclusive and the Respondent has no defence to the Appellant’s claim and therefore should not be allowed to stop the Appellant from obtaining Judgement.
In determining his second issue, Learned Appellant Counsel referred to Section 32(1)(d) of the Federal Inland Revenue Act 2007. He also relied on Sections 68, 69 and 76 of the same Act, that provide the Appellant the inherent right to proceed to enforce the settlement of liability where a Respondent having been duly served with Assessment Notices fails to object by writing within 30 days.
Furthermore, Learned Appellant Counsel also relied on the cases of Odume V Nnachi (1964) 1 ALL NLR and Onadeko V UBN Plc (2005) ALL FWLR part 250 at page 61, where the court held that: “…. Liquidated money demand include debt and means of specific amount which has accrued and must be ascertained”.
Learned Counsel finally submitted that having regard to the Appeal before the Tribunal, it became apparent that the Respondent has no defence to this action and urged the Tribunal to enter judgement in favour of the Appellant against the Respondent.
ISSUES FOR DETERMINATION BEFORE THIS HONOURABLE TRIBUNAL
This Honourable Tribunal has formulated the following issues for determination.
1. Whether having regard to the facts and circumstances of this appeal the Appellant has properly filed this matter under the Summary Appeal Procedure.
2. Whether the Appellant is entitled to the grant of the Reliefs as prayed.
In tackling the first issue, the Tribunal is fully convinced that the Appellant has properly filed this action under the Summary Appeal Procedure as envisaged by Order XVI Rule 1 of the Tribunal Rules, 2021 which provides: “where an aggrieved party intends to file an appeal in respect of a claim to recover a debt or liquidated money demand to which he believes there is no defence 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 defence thereto; and the Tribunal shall, if satisfied that there are grounds for believing that there is no defence thereto, enter appeal for hearing under the Summary Appeal Procedure.”
The Tribunal also noted specifically the Court of Appeal decision in the case of Chairman Moro LG V Lawal (2007) LPELR-11828(CA) where it was stated by per Jummai Hannatu Sankey, JCS (Pp 40 – 41 Paras F-E) that:
“The Law with regard to the Undefended List Procedure is that the trial court, in the exercise of its discretion whether to transfer it to the general cause list, is required to maintain an even balance in the consideration of the affidavit filed by the parties respectively in order to arrive at a just decision. A defendant who has no real defense to the action will not be allowed to dribble and frustrate the plaintiff in order to deprive him of the summary judgement he would have been entitled to by way of delay tactics instead of offering any real defense to the Plaintiff action”.
See also – Effiong V Rogers (2003) ALL FWLR part 1512 pages 1062 – 1063 and Onadeko V UBN Plc (2005) ALL FWLR part 250 page 61, where the court held that: “Liquidated money demand included debt and means a specific amount which has accrued in favour of the Plaintiff from the Defendant. The sum due and described as liquidated must have accrued and it must be ascertained”.
Based on the above, this issue for determination is answered in the positive.
Issues Two
In determining this issue the Tribunal is mindful of the Provisions of Order XVI Rule 3 of the Tribunal Rules 2021, which provides as follows:-
“where a respondent under this Rule fails to file a Notice of Intention to defend as prescribed by Rule 2(1) of this Order and the Tribunal is satisfied that the respondent was properly served the Notice of Appeal, the Tribunal shall proceed to hear the appellant and thereafter deliver a decision in respect of the appeal”.
In furtherance to the above, the Tribunal also noted the provisions of Section 32(1) (d) of the Federal Inland Revenue Service (Established) Act 2007 which stipulates that “the service shall serve a demand notice upon the company or person in whose name a tax is chargeable and if payment is not made within one month from the date of service of such demand notice, the Service may proceed to enforce payment under this Act…”
Furthermore, the Tribunal has taken specific cognisance of the following decided cases:
1. MASSKEN (NIG) LTD & ORS v. AMAKA & ANOR (2017) LPELR-42360(SC).
2. ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2009) LPELR-33(SC).
3. BARO v. HASSAN (2013) LPELR-20089(SC).
4. EKULO FARMS LTD & ANOR v. UNION BANK PLC (2006) LPELR-40141(SC).
.