Rulings

Notice of Discontinuance: Tax Appeal Tribunal Rules that an Applicant will not be allowed to ‘Arrest’ or ‘ambush’ an Impending Judgement


In Standard Practice Professional v. Federal Inland Revenue Service, the appellant applied to the Tax Appeal Tribunal to end the case two days before judgement was to be delivered.

The Tribunal held that, the application obviously seeks to ‘arrest’ or ‘ambush’ a judgment/ Ruling about to be delivered by a competent court or Tribunal, and such move is alien to the Nigerian legal jurisprudence and is consequently incompetent and misconceived in law and facts

Read full Judgement below:

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IN THE TAX APPEAL TRIBUNAL

                                     HOLDEN AT LAGOS

    APPEAL NO: TAT/LZ/013/2018

BETWEEN:

STANDARD PRACTICE PROFESSIONAL ……………………….……..APPELLANT

AND

FEDERAL INLAND REVENUE SERVICE …………………………….RESPONDENT

RULING ON NOTICE OF DISCONTINUANCE DATED 27TH FEBRUARY, 2019

The Appellant filed a Notice of Discontinuance on the 4th day of March, 2019 after this Appeal was set down for Ruling on the Preliminary objection raised by the Respondent’s counsel. The said Ruling was to have been delivered on the 6th day of March, 2019. Prior to this, the Appellant’s representative and Respondent’s learned counsel had filed written submissions and adopted same, as their arguments in respect of the preliminary objection .

In view of this development, this honourable Tribunal requested the Respondent’s counsel and Appellant’s representative to file written submissions on the propriety of the Notice of Discontinuance in view of the circumstances of this case. Mr Abdullateef Abdul, who was present at the Tribunal on that date, graciously offered to file his submissions as amicus curiae.

This honourable Tribunal is duty bound to consider the Appellant’s Notice of Discontinuance and make a decision on it as it is a ‘cardinal principle of administration of justice to let a party know the fate of his application, whether properly or improperly brought before the court or tribunal. It will amount to unfair hearing to ignore an objection raised by a party or its counsel against any steps in the proceedings.’  See the Supreme Court decision in Nwakudu V Ibeto [2011] 2 NWLR (Pt 1231) 209 at 215.

In compliance with the directive of the honourable Tribunal, the Appellant’s representative filed a process, dated 1st April, 2019 stating the reasons for its Notice of Discontinuance. The Respondent’s learned counsel filed its written submission dated 21st March,2019 and raised one issue  for determination, namely, “Whether the Notice is (sic) Discontinuance dated 27th day of February, 2019, but filed on the 4th day of March 2019 by the Appellant is valid and properly filed before the Tribunal?”.

Mr Abdullateef Abdul, the amicus curiae, filed a written submission, dated 29th March, 2019, but did not raise any issue for determination but proffered argument in respect of the directive of the honourable Tribunal.

It is the argument of the Appellant’s representative that “the honorable Tribunal lacks jurisdiction on the clarification it seeks or on the directive given, hence any judgment or ruling pronounced by it, has no legal backing.”

The argument of the Respondent’s learned counsel, as per the issue formulated for determination, is that; though, the Appellant has a right to withdraw its appeal at any stage before judgment, the procedure adopted by the Appellant is contrary to the provisions of Order XIV of the Tax Appeal Tribunal Procedure Rules,2010.

It is also the contention of the Respondent’s learned counsel that, the Appellant’s Notice of Discontinuance is tantamount to arresting or ambushing the ruling of the Tribunal, which had been reserved for delivery on 6th March, 2019 and was therefore incompetent and unknown to our legal jurisprudence and same should be discountenanced. The Respondent’s Notice of Discontinuance is an abuse of the judicial process.

The “amicus curiae” on the other hand, is of the view that the honourable Tribunal should proceed to deliver its ruling reserved for 6th March, 2019, because the issue of preliminary objection raised by the Respondent, touches on the jurisdiction of the honourable Tribunal to entertain the appeal of the Appellant and the issue of the Tribunal’s jurisdiction is fundamental and should be considered before any other Notice or application filed in the appeal.

The “amicus curiae” also argued about the requirement of seeking and obtaining the leave of the honourable Tribunal, as stipulated under Order XIV of the Rules of the honourable Tribunal, before a Notice of Discontinuance could be properly and validly filed at this stage.

He also argued that, the Notice of Discontinuance filed in the instant appeal, is in the nature of arrest of the ruling reserved by this honourable Tribunal and same should be discountenanced on the ground that it is incompetent and unknown to our legal jurisprudence.

The Respondent’s learned counsel and amicus curie cited a plethora of authorities, inter alia, Umeanadu V A-G Anambra State (2008) 9 NWLR (1091) 175 S.C., Asonibare V Momodu (2014) 10 W.R.N. 140@145; Newswatch Communications Limited V Atta (2006) 12 NWLR (PT 993) 144; Eronini & Ors V Iheuko (1989) 2 N.W.L.R (Pt 101) 46; Ekundano V Keregbe (2008) LPELR 1100 S.C; Hon. Minister of Works and Housing V Thomas Nigeria Limited & Ors (2001) LPELR 7007; Okorodudu V Okorodudu (1977) LPELR 2495 S.C.; Arinze V Union Bank Plc (2018) LPELR 44757; and Agbaje & Ors V Otunola & Anor. (2017) LPELR 42382.

From the issue and arguments of the parties and the amicus curiae, the following are the issues that call for determination, viz.

  1. At what point in the course of proceedings can an appeal be discontinued and by what process?
  2. Whether the Appellant’s Notice of Discontinuance does not amount to an ‘arrest’ of a judgment/Ruling of this Honorable Tribunal and therefore incompetent?.

Order XIV of the Tax Appeal Tribunal Rules, 2010 deals with discontinuance of appeals.

Rule 1 An appellant may;

  1. At any time before the hearing of an appeal withdraw the appeal by filing a notice of discontinuance as in form TAT 5 signed by the appellant or his representative stating that the appeal is withdrawn; or
  2. At the hearing of the appeal and with leave of the Tribunal, withdraw the appeal.

Under Order XIV Rule 1 (b) of the Tax Appeal Tribunal Rule, 2010, the Appellant requires the leave of the Tribunal before a Notice of Discontinuance can be filed where hearing has commenced in the appeal.

In the instant appeal, hearing has commenced to wit, the parties had filed written submissions in respect of the Respondent’s preliminary objection and ruling had been reserved for 6th March, 2019.

Against this background, the Appellant requires leave of the honourable Tribunal before it could file a Notice of Discontinuance.

Leave of court simply means judicial permission.

However, the Appellant filed its Notice of Discontinuance without seeking and obtaining the leave of this honourable Tribunal.

On the consequences of not obtaining leave where the Rules of court/Tribunal so require. See the case of Umeanadu V A.G Anambra State [2008] 9 NWLR (Pt 1091) 175.

‘In the present case therefore, there is no dispute whatsoever that the appellant’s notice of discontinuance was filed after the appellant’s action had already been fixed for hearing. Thus the appellant not having sought and obtained the leave of the trial court to discontinue his action against the respondents, that action remains firmly before the trial court for determination in accordance with the law. The court below was therefore right in its decision that the trial judge was correct in refusing or ignoring a discontinuance of the suit as sought by the appellant in the absence of the required leave under the law.’

See also, Leonard Eronini & Ors V Francis Iheuko [1989] 2 NWLR (Pt 101) 46 at 56- per Obaseki JSC.

‘it is clear therefore that a plaintiff and or a defendant who counter claims may withdraw his claim or counter-claim at any stage of the proceedings before judgment. These are mainly in circumstances where no date has been fixed for hearing. No leave is required. However, where the case has been fixed for hearing, leave to withdraw is required as the Rule gives power to the court to allow discontinuance…’

Where by the rules, a party is enjoined to seek and obtain leave of court or tribunal, before discontinuing his action or appeal, a mere notice of discontinuance, as in this appeal, cannot pass for a proper application for leave, which is expected to be obtained. See Omo V Amantu [1993]3 NWLR (Pt 280) 167 at 191.

It is pertinent to state that there is a preliminary objection attacking the competence of this appeal and the jurisdiction of this honourable Tribunal over the appeal.

It is submitted that, the issue of jurisdiction is so fundamental and the Tribunal should determine the issue before considering any other notice or application and before any other proceedings.

See Arinze V Union Bank Plc [2018] LPELR- 44757 where the Court of Appeal held ‘… it is well settled and trite that the question of jurisdiction is so fundamental that the adjudicating court should determine the issue first before embarking on any proceedings or any other application i.e the notice of discontinuance…’

See also SPDC V Anaro [2015) LPELR-24750 where the Supreme Court reiterated that ‘the issue of jurisdiction is the lifeblood of any adjudication, it is so fundamental that it must be resolved before any other step is taken in the proceedings. Jurisdiction goes to the competence of the court or tribunal to entertain a cause or matter. Any proceedings conducted without jurisdiction would amount to a nullity and any decision reached therein is liable to be set aside.’

On issue 2, this honourable Tribunal aligns itself with the views of the Respondent’s counsel and the amicus curiae that, the Appellant’s Notice of Discontinuance, is akin to an ‘arrest’ of the Ruling of this honourable Tribunal.

From the wording of the Appellant’s written submission, it is clear that the intendment of the Notice of Discontinuance is to prevent the Tribunal from delivering its ruling on the Respondent’s preliminary objection, as the Appellant has come to its own conclusions on the expected ruling and decided to take steps to prevent this Tribunal from delivering the ruling.

The application to ‘arrest’ or ‘ambush’ a judgment/ Ruling about to be delivered by a competent court or Tribunal is unknown to the Nigerian legal jurisprudence and is consequently incompetent and misconceived in law and facts. See Ukachukwu V PDP [Supra]. See also SIEC of Ekiti State V NCP [2008] 12 NWLR (Pt 1102) 720 at 732- per Sankey JCA ‘The rules of court do not make provision for an application for arrest of judgment which is about to be delivered by a court. An application not recognized by the rules of court cannot be described as a proper application. An application to arrest a judgment is a cynical attempt to taunt the trial court.’ 

See also Newswatch Communications Ltd V Atta [2006] 12 NWLR (Pt 993) 144.

Ochor V Ojo [2008]13 NWLR (Pt 1105) 524 at 527.

‘In an application which calls for the exercise of the court’s discretion, the discretion must be exercised judicially and judiciously, taking all the facts and circumstances of the case into consideration. See Ukachukwu’ supra at 68’

The Notice of Discontinuance filed by the Appellant, to all intents and purposes, is aimed at arresting the ruling already reserved by this honorable tribunal and as such, it is an abuse of the judicial process.

The concept of abuse of judicial process involves circumstances and situations of infinite variety. Its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.

When an abuse of process occurs, the courts do not take it lightly as it is not a mere irregularity. It is a fundamental vice punishable by dismissal of the offending process. See Ukachukwu V PDP supra. See also, Ali V Aibishir [2008] 3 NWLR (Pt 1073) 94.: Ume V Iwu [2008] 8 NWLR (Pt 1089) 225.: A-G of Anambra State V UBA [2005]15 NWLR (Pt 947) 44.: Arubo V Aiyeleru [1993]3 NWLR (Pt 280) 126.

A process filed to arrest judgment or ruling of court or tribunal is an improper process unknown to our adjectival law and indeed our jurisprudence. The expression ‘arrest of judgment or ruling’ is an offensive expression which connotes brigandage and lawlessness and all things anathema to the rule of law. See Nwankudu  V Ibeto (2011) 2 NWLR (Pt 1231) 209 at 215.  Abuse of court process simply means that, the process of the court/ tribunal has not been used bona fide and properly, Abuse of court process is manifested when a party improperly uses the judicial process to the irritation and annoyance of his opponent among other situations. See Arubo V Aiyeleru supra. See also Stabilini Visinoni V SV Ltd [2011]8 NWLR (Pt 1249) 258 at 262.

The Notice of Discontinuance dated 27th February, 2019, filed by the Appellant which seeks to arrest the ruling already reserved by this honorable Tribunal is an abuse of the process of this honorable Tribunal and unknown to the jurisprudence of this country and consequently incompetent and misconceived in law and facts and the said Notice of Discontinuance is hereby dismissed.

This Tribunal shall now proceed to deliver its ruling on the Respondent’s preliminary objection, earlier reserved for March 6th, 2019.   

                   DATED AT LAGOS THIS 9TH DAY OF MAY 2019

                           _____________________________

                                 ADEDAPO M. SOBOWALE ESQ.

    (CHAIRMAN)

_____________________                          ______________________

OLATUNDE BALOGUN ESQ.                      EBERE NNEKA ORUCHE ESQ.

   (HON COMMISSIONER)                              (HON COMMISSIONER)

___________________                             ____________________

A. K. AKINSEHINWA ESQ.                        AMINU USMAN ESQ. 

 (HON COMMISSIONER)                           (HON COMMISSIONER)

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