ATTORNEY GENERAL OF LAGOS STATE v. ATTORNEY GENERAL OF THE FEDERATION & ORS (2014)

In The Supreme Court of Nigeria

On Friday, the 11th day of April, 2014

SC.20/2008

Before Their Lordships

MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

Between

THE HONOURABLE ATTORNEY GENERAL OF LAGOS STATE –Appellant

AND

1. THE HON. ATTORNEY GENERAL OF THE FEDERATION
2. THE HON. ATTORNEY GENERAL OF ABIA STATE
3. THE HON. ATTORNEY GENERAL OF ADAMAWA STATE
4. THE HON. ATTORNEY GENERAL OF AKWA IBOM STATE
5. THE HON. ATTORNEY GENERAL OF ANAMBRA STATE
6. THE HON. ATTORNEY GENERAL OF BAUCHI STATE
7. THE HON. ATTORNEY GENERAL OF BAYELSA STATE
8. THE HON. ATTORNEY GENERAL OF BENUE STATE
9. THE HON. ATTORNEY GENERAL OF BORNO STATE
10. THE HON. ATTORNEY GENERAL OF CROSS RIVER STATE
11. THE HON. ATTORNEY GENERAL OF DELTA STATE
12. THE HON. ATTORNEY GENERAL OF EBONYI STATE
13. THE HON. ATTORNEY GENERAL OF EDO STATE
14. THE HON. ATTORNEY GENERAL OF EKITI STATE
15. THE HON. ATTORNEY GENERAL OF ENUGU STATE
16. THE HON. ATTORNEY GENERAL OF GOMBE STATE
17. THE HON. ATTORNEY GENERAL OF IMO STATE
18. THE HON. ATTORNEY GENERAL OF JIGAWA STATE
19. THE HON. ATTORNEY GENERAL OF KADUNA STATE
20. THE HON. ATTORNEY GENERAL OF KANO STATE
21. THE HON. ATTORNEY GENERAL OF KATSINA STATE
22. THE HON. ATTORNEY GENERAL OF KEBBI STATE
23. THE HON. ATTORNEY GENERAL OF KOGI STATE
24. THE HON. ATTORNEY GENERAL OF KWARA STATE
25. THE HON. ATTORNEY GENERAL OF NASARAWA STATE
26. THE HON. ATTORNEY GENERAL OF NIGER STATE
27. THE HON. ATTORNEY GENERAL OF OGUN STATE
28. THE HON. ATTORNEY GENERAL OF ONDO STATE
29. THE HON. ATTORNEY GENERAL OF OSUN STATE
30. THE HON. ATTORNEY GENERAL OF OYO STATE
31. THE HON. ATTORNEY GENERAL OF PLATEAU STATE
32. THE HON. ATTORNEY GENERAL OF RIVERS STATE
33. THE HON. ATTORNEY GENERAL OF SOKOTO STATE
34. THE HON. ATTORNEY GENERAL OF TARABA STATE
35. THE HON. ATTORNEY GENERAL OF YOBE STATE
36. THE HON. ATTORNEY GENERAL OF ZAMFARA STATE- Respondents

…………………….A…………………….

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Lead Ruling): By an amended Originating summons filed on the 12th day of August, 2009, the plaintiff claims against the defendants thus:-

“That the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other legislative body, to enact laws with regard to the imposition and collection of tax on the supply of all goods and services within Lagos State of Nigeria and that the Lagos State of Nigeria, or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of the Logos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria, 2004 (hereinafter referred to as ‘The VAT ACT’.”

In its consideration of the foregoing claim, the plaintiff urges the court to determine the following questions:-

“1. Whether upon the coming into effect of the Constitution of The Federal Republic of Nigeria, 1999 the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an act (sic) of the National Assembly?
2. If the answer is in the affirmative, whether the combination of the provisions of Sections 2, 4, 6 and 7 of the said Value Added Tax Act which empower a Federal Organ to impose and collect taxes on the supply of all goods and services other thon those listed in the first schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other states of the Federation?
3. If the answer to question 2 is in the affirmative, whether Sections 2, 3, 4, 5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution?”

On determining the questions, the plaintiff prays the court for the following reliefs:-

“(1) A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria, 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other states of the federation), outside the legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
(2) A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provision of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.”

The 1st defendant, the Attorney General of the Federation, upon being served the amended Originating Summons, the supporting affidavit and the Exhibits annexed thereto, on 3rd February, 2010 filed a Notice of Preliminary objection pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 and Section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999 urging the Court to strike out and/or dismiss plaintiff’s suit on the grounds set out in the schedule to the preliminary objection. 1st defendant also canvassed for such further order(s) as the court may deem fit to make in the circumstances of the case.

The two grounds on which the preliminary objection is predicated are hereunder reproduced shorn of their
particulars:-

GROUND 1
The plaintiff’s cause of action relates to acts of a Federal Organ and cannot form the basis of invoking this Honourable Courts Original Jurisdiction to entertain this suit.

GROUND 2
The entire suit constitutes an abuse of court process and should be struck out.”

Parties have filed and exchanged written briefs on 1st defendant’s preliminary objection and, where applicable, also on plaintiff’s amended originating summons.

Courts, including the apex court, lack the jurisdiction of entertaining incompetent claims and/or those that constitute abuse of their processes. They proceed in vain if they do. Being bereft of the necessary vires or with their processes having been abused, the decisions which eventually arise lack the authority and so remain unenforceable no matter how well conducted the proceedings that brought them about were. A judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties. Being a challenge to the jurisdiction of this Court to entertain plaintiff’s action, therefore, 1st defendant’s preliminary objection has to be determined first. Having been raised, all proceedings must abate until the issue is resolved. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31, AG Lagos State V. Dosunmu (1989) 3 NWLR (Pt.111) 552, Jeric Nig Ltd V. UBA Plc (2000) 12 SC (Pt.11) 133, Nnonye V. Anyiche (2005) 2 NWLR (Pt.910) 623 and Daplanlong V. Dariye (2007) 8 NWLR (Pt.1036) 332.

The two issues the 1st defendant considers to have arisen for the determination of his preliminary objection as distilled at paragraph 3 of his written brief thereon read:-

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“1. Whether the Supreme Court’s original jurisdiction can be invoked where the Acts and Allegations constituting the main dispute are Acts of an Agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

On his part, the two issues formulated in the plaintiff/respondent’s brief as arising from the preliminary objection are:-

“(1) Whether there is a dispute between the Lagos State Government and the Federation in respect of the
Constitutionality of the value added tax Act as it applies to Lagos State (as well as other States of the Federation) over which the Supreme Court may exercise exclusive jurisdiction?
(2) Does the present action instituted by the Plaintiff amount to an abuse of process of this honourable Court?

Under the 1st issue arising from the preliminary objection, Mr. Daudu 1st defendant’s learned senior counsel submits that the original jurisdiction of this Court is provided for under Section 232 (1) of the 1999 Constitution. For the original jurisdiction of the court to be invoked, it is contended, plaintiff’s claim must disclose a dispute between the federation and a state or states as constituent unit or units or between the states inter-se. The dispute, 1st defendant’s learned senior counsel further submits, must be one on which the existence or extent of a legal right of the parties in their capacities as such is involved. Learned senior counsel relies on AG Bendel State v. AG Fed (1982) 3 NCLRI, AG Federation v. AG Abia State (2001) 1 NWLR (pt.625) 689 at 728, AG Federation v. AG Imo State (1993) 4 NCLR 178 and more particularly AG Kano State v. AG. Federation (2007) 3 SC 59 at 1.

Paragraphs 7, 8, 13, 15 and 19 of the affidavit in support of plaintiff’s originating summons, it is contended, only disclose a dispute between the plaintiff and an agency of the 1st defendant. Plaintiff’s complaint, it is further argued, centres squarely on the collection of Tax on supply of goods and services by the Federal Inland Revenue Services which Act makes it tremendously difficult for the plaintiff or any of its agencies to collect taxes from those sources. Plaintiff’s claim is about restraining 1st defendant’s agent from imposing and collecting taxes on the supply of goods and services within Lagos State and no more. Being a claim pertaining to the acts of an agency of the 1st defendant rather than a dispute between the federation and the plaintiff or between the states themselves as constituents of the federation, the original jurisdiction of the Supreme Court under Section 232 (1) of the 1999 Constitution cannot be invoked by the plaintiff/respondent. Further relying on the decision of this Court in AG Benue State v. AG Federation and 35 others (supra), learned senior counsel urges that plaintiff’s suit as presently constituted be struck-out for want of jurisdiction.

Under the 2nd issue, learned senior counsel for the 1st defendant contends that plaintiff’s suit which seeks to relitigate afresh issues that had been tried and decided by courts of competent jurisdiction other than this Court is an abuse of the process of this Court. Learned senior counsel inter-alia relies on AG Ondo State v. AG Ekiti State (2001) 7 NWLR (Pt.743) 706, CBN v. Ahmed (2001) 11 NWLR (Pt.24) 369 and Ogoejofo v. Ogoejofo (2006) 22 NWLR 183 and contends that the suit constitutes an abuse of the process of this Court. It is contrary to justice and public policy, learned senior counsel submits, to allow the plaintiff prosecute such a claim that has already been tried and determined.

Referring to paragraph 15 of the affidavit in support of plaintiff’s amended originating summons, learned senior counsel further submits that the plaintiff and the 1st defendant were the principal parties in suit No.ID/105/01 wherein the plaintiff obtained a decision in his favour. The nominal parties and the 1st defendant being dissatisfied with the decision filed appeals CA/L/23/04 and CA/L/727m/05 respectively. The two appeals are still pending. The subject matter of suit No.ID/105/01 and the pending appeals from same, submits learned senior counsel, are discernable from page 5 of the judgment of the trial court, Exhibit “A”, annexed to the affidavit in support of plaintiff’s amended originating summons. It is the same subject matter, contends learned senior counsel, that the plaintiff raises in the present suit. Again, suit No FHC/L/205/04 between the plaintiff and the agents of the 1st defendant as well as plaintiff’s appeal No. CA/L/428/05 on the same subject matter instantly raised by the plaintiff, have all been determined against the plaintiff. The plaintiff is yet to appeal against the decision of the Court of Appeal.

In view of the litany of cases instituted by the plaintiff against 1st defendant’s agencies and in respect of which the trial High Courts and the Court of Appeal, as the case may be, have pronounced upon, it is concluded, the original jurisdiction of this Court should not avail the plaintiff to relitigate the very issue raised in the other suits. There must be certainty and end to litigation and the plaintiff should not be allowed to circumvent the processes of the other courts he had already approached. On the whole, plaintiff’s claim, learned senior counsel to the 1st defendant submits, should be struck out and/or dismissed.

Responding under plaintiff’s 1st issue for the determination of the preliminary objection, Mr. Sofunde SAN for the plaintiff submits that it is the claim of the plaintiff that determines a court’s jurisdiction. Learned senior counsel relies on AG Federation v. AG Abia State (2001) 11 NWLR (Pt.625) 689 at 740 and Izenkwe v. Nnadozie 14 WACA 361 at 363 from which the former decision drew.
Learned senior counsel refers to plaintiff’s claim and the reliefs being sought therefrom as well as paragraphs 7, 8, 12, 14 and 15 of the affidavit in support of plaintiff’s amended originating summons and submits that a dispute is

…………………….C…………………….

clearly shown to exist between the plaintiff and the federation. Learned plaintiff’s counsel concedes that on the authorities, particularly AG Kano v. AG Federation (2007) 6 NWLR (Pt.1029) 164 at 182 the existence of a dispute between the federation and a state or the states inter-se -as constituent units is an essential requirement for the invocation of the original jurisdiction of this Court.

By the reliefs the plaintiff seeks and the facts as contained in the relevant paragraphs in his supporting affidavit, plaintiff’s learned senior counsel contends, the plaintiff’s suit is challenging the constitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the Act. Plaintiff’s grouse in the suit is not really about the act of the collection of these taxes by the F.I.R.S., an agency of the 1st defendant, but rather on the legality or otherwise of the legislation on which the acts of the F.I.R.S. are founded. The plaintiff, it is submitted, has no dispute with the Federal Board of Inland Revenue which remains a mere agent but with the legislative competence of the 1st defendant vis-a-vis the taxes collected by the Board. Were the plaintiff’s quarrel to be in relation to the act of collecting this tax by 1st defendant’s agent without more, it would have been impossible to bring plaintiff’s claim within the purview of Section 232 (1) of the 1999 Constitution that provides for this Court’s original jurisdiction.
Learned senior counsel cites the cases of AG Abia State v. AG Federation (2007) 6 NWLR (Pt.1029) 200 and AG of Benue State v. AG of the Federation & 35 others unreported decision of this Court in Appeal No.179/2006 delivered on 25th October, 2007.

It is not the law, it is further argued, that the illegality of an act of the Federal Government cannot be challenged by a state as a constituent of the Federation by invoking the original jurisdiction of this Court pursuant to Section 232(1) of the 1999 Constitution simply because the act complained of is being performed by one of the agencies of the Federal Government. Once the constitutionality of the enactment by virtue of which the acts complained of are carried out is in issue, the dispute would come within the purview of Section 232 (1) of the 1999 Constitution. Relying on the Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 SC 1 and AG Abia State v. AG Federation & 35 Ors (2005) 12 NWLR (Pt.940) 452.

Concluding under the issue, learned senior counsel submits that what determines proper resort to the original jurisdiction of this Court under Section 232(1) of the Constitution is who the real disputants are in the matter a fact discernable from the crux of the plaintiff’s complaint. The mere fact that the act challenged is that of an agency of the 1st defendant in the case at hand without more does not take away the court’s jurisdiction under Section 232 (1) of the Constitution. Plaintiff’s grouse it is argued, is that it has been denied imposition and collection of taxes on the supply of goods and services because such tax are, due to the implementation of the illegal and unconstitutional VAT regime, instead, collected by the agency of the 1st defendant. The power of the National Assembly to enact the legislation is the crux of plaintiff’s suit. Learned senior counsel urges that the issue be resolved against the 1st defendant.

Under the 2nd issue, learned senior counsel cites the decisions in Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 and Okafor v. AG Anambra (1991) 6 NWLR (Pt.200) 659 at 681 and submits that since the subject matter and the parties in the instant suit are not the same as in the suits mentioned in paragraph 15 of the affidavit in support of plaintiff’s amended originating summons, the instant suit cannot be rightly held to be an abuse of the process of this Court. A scrutiny of paragraph 15 of the supporting affidavit to plaintiff’s amended originating summons and the processes annexed to the summons clearly belies the assertion that the 1st defendant, the Attorney General of the Federation was a party to suit No.ID/105/01. Appeal No.CA/L/727M/2006 against same though, learned senior counsel to the plaintiff concedes, was filed by the Attorney General. The fact, learned senior counsel however argues, does not make the 1st defendant a party to suit ID/105/727m/ which gave rise to appeal CA/L/727m/2006. The fact remains, therefore, plaintiff’s learned senior counsel insists, that parties previous suits and the parties in the present suit are not the same.

The validity and constitutionality of the Value Added Tax Act which is the issue in the instant suit, further argues learned senior counsel, was never the issue in the previous suits. Similarly, the issues that arose in appeal No.CA/L/428/05, it is contended, differs from those raised in the present suit. The requirement of sameness of the subject matter in the present suit with the one in the previous suits not having been met plaintiff cannot be denied his right to proceed with the instant action.

Lastly, it is submitted, 1st defendant who has failed to demonstrate what irritation or annoyance plaintiff’s action has caused him cannot stop plaintiff’s claim. In addition to establishing multiplicity of actions and the sameness of subject matter in and between the other suits and the present suit, the purpose and aim of the person exercising the perceived right to institute more than one action must be established.

It is pertinent to state here that the plaintiff has advanced similar responses to the arguments contained in the briefs of the 14th, 24th, 30th and 35th defendants on the arguments on their preliminary objections which are similar to those proffered in the 1st defendant’s brief. It serves no useful purpose to further restate these arguments.

On the whole, learned senior counsel to the plaintiff prays that all the preliminary objections be overruled. He urges that the court assumes jurisdiction over plaintiff’s suit.

…………………….D…………………….

It must be stressed that the jurisdiction of all courts are as provided for by the Constitution and/or the relevant legislation. Jurisdiction remains a question of law and a necessary requirement in all proceedings. Whenever the jurisdiction of a court is challenged the well laid down position of the law is that the plaintiff’s claim determines the issue. The claim of the plaintiff is carefully examined to see if it comes within the jurisdiction conferred on the court by the relevant legislation. See Bronik Motors Ltd & Anor v. Wema Bank (1983) NSCC 226, Chief Danis C. Osadebay v. AG Bendel State (1991) 1 SC (Pt.11) 73 and Dr. Felix Amadi & Anor v. INEC & 2 Ors (2012) 2 SC (Pt.1) 1. In the case at hand where the plaintiff seeks to commence his action by an originating summons, the preliminary objection is to be determined on the basis of the totality of the case he puts forward in the summons and the affidavit in support. See Inakoju & Ors v. Senator Rashidi Ladoja & Ors (2007) All FWLR (Pt.353) 1 at 87.

Counsel on both sides have urged that in determining the preliminary objections against the plaintiff’s suit we examine the plaintiff’s claim by reference only to Section 232(1) of the 1999 Constitution and Order 2 rule 29 of the Supreme Court Rules, 2002. Counsel have cited and relied on decisions of this Court where the court assumed or declined jurisdiction by examining the plaintiff’s claim in the light of Section 232(1) of the 1999 Constitution alone. The court, it must be realized, at all times does the needful and the necessary.

It is a settled principle of interpretation that whenever a court is faced with the interpretation of a Constitutional provision the Constitution must be read as a whole in determining the object of the particular provision. This requirement places a duty on the court to interpret related Sections of the Constitution together. See Nafiu Rabiu v. The State (1980) 8 – 11 SC 130 at 148; (1980) 8 -11 SC (Reprint) 85 and Bronik Motors & Anor v. Wema Bank Ltd (Supra). In Hon. Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) v. AG Federation & 2 Ors (2012) 2 SC (Pt.1) 145, this Court stated thus:-
“The duty of the court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A section must be read against the background of other Sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it.”
The determination of the preliminary objections against plaintiff’s action requires the application of the principle of community construction of the provision of Section 232 (1) of the 1999 Constitution by considering all relevant provisions of the very constitution that may be helpful in the proper understanding of the particular provision in contention. See Buhari v. Yusuf (2003) 6 SC (pt.11) 156 and Associated Discount v. Amalgamated Trustees (No 2) (2007) 7 SC 168. I am of the firm and considered view that a resort to Section 6 (1), (5) and (6) and Section 251 (1) (a), (b) and (q) of the 1999 Constitution as well will facilitate a proper understanding of Section 232 (1) of the same Constitution that is particularly in issue in the matter at hand. All these provisions are hereunder reproduced for ease of reference.
“Section 6 – (1) The judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the federation.
(5) This section relates to –
(a) The Supreme Court of Nigeria;
(c) The Federal High Court:
(6) The judicial powers vested in accordance with the foregoing provisions of this section-
(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of the court of law,
(b) Shall extend to all matters between persons, of between government or authority and to any person in Nigeria and all actions and proceedings relating thereto: for the determination of any question as to the civil rights and obligations of that person.
Section 232(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
Section 251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(b) 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.”

(q) Subject to the provisions of this Constitution the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies.
(underlining supplied for emphasis).
A community reading of the foregoing provisions reveals the establishment of the Supreme Court and the Federal High Court and their investiture with judicial powers in all actions and proceedings pertaining all matters between persons or between government or authority and to any person in Nigeria. In particular, Section 232(1) provides for the original jurisdiction of the Supreme Court which is exclusive to it in respect of any dispute between the Federation and State or between the States inter-se, the determination of which dispute involves a resolution of any question, whether of fact or law, on which the existence or extent of the legal right being asserted in the dispute depends. By this Section, once a dispute is

…………………….E…………………….

between the Federation and a State or between the States themselves and the determination of the dispute requires resolution of any question, whether of fact or law in relation to the claim raised, this Court and no other would have jurisdiction over such matters. The section does not empower the apex Court to hear and determine disputes between the government of the federation and a state or the governments of the States inter-se. It equally does not allow for disputes between agencies of the Federal government and a State or agencies of the State governments inter-se.
The plaintiff lavishly contended that he has met all the conditions he requires in invoking the original jurisdiction of this Court under Section 232 (1) of the Constitution to wit:-
(a) there must be a justiciable dispute involving any question of law or fact, (b) the dispute must be (i) between the Federation and a State in its capacity as one of the constituent units of the Federation, or (ii) between the Federation and more State that are in their capacities as members of the constituent unit of the Federation; and (c) the dispute must be one on which the existence or extent of a legal right in the said capacity is involved. SeeA-G., Federation v. A.G., Imo State (1983) 4 NCLR and A-G., Ondo State v. A.G., Fed. (2002) 9 NWLR (Pt.772) 222 SC.
I am in complete agreement with learned senior counsel to the plaintiff that the crux and substance of the content of the affidavit in support of plaintiff’s amended originating summons should inform our decision whether or not to assume jurisdiction over plaintiff’s suit. It is indeed the law that the form in which plaintiffs claim has been couched should not be the overriding consideration. Time it was when courts lean on technicalities. In the instant matter only consideration of the crux of plaintiff’s claim will ensure the just resolution of the issue in dispute. See Consotium M. C. v. NEPA (1992) 6 NWLR (Pt.246) 132 and Adelusola v. Akinde (2004) 12 NWLR (Pt.887) 295.
It is not unreasonable to view plaintiff’s claim, given the facts on which same rests, as indicating a complaint against the legislative competence of the National Assembly which fact, inspite of the reference to agencies of the federal government in the claim, may form the basis of this Court’s assumption of jurisdiction as was done inAG Bendel State v. AG Federation & Ors (1981) vol 12 N.S.C.C. 314 and AG Lagos State v. AG Federation & 35 Others. The fact that the Attorneys General of both sides are the parties in plaintiff’s case and not any of their agencies tends to further remove plaintiff’s suit from the decision of this Court inter-alia in AG Anambra State v. AG Federation & 35 Others (2007) 12 NWLR (Pt.1047) 4 and AG Abia State v. AG Federation (2007) 6 NWLR (Pt.1029) 200 declining jurisdiction. Lastly and equally important is the fact that plaintiff’s cause of action being justiciable also takes it out of the shackles of this Court’s decision in AG Kano State v. AG Federation (2007) 6 NWLR (Pt.1029) 164.
Now, the most important question to answer is whether indeed the plaintiff has met the stated conditions. In answering this question we must take the exercise we embarked upon of communally interpreting the constitutional provisions under reference to its logical conclusion. This lies in finding the answer to the further question whether, given the provision of Section 251 (1) (a), (b) and (q) of the same 1999 Constitution, the Supreme Court’s exclusion of other courts in the exercise of the original jurisdiction conferred on it by Section 232 (1) is total. Put differently, does Section 251 (1) (a), (b) and (q) vest the Federal High Court, which by the hierarchical arrangement under Section (6) (5) is a court of first instance equally exercising original jurisdiction into civil matters and causes, the jurisdiction in any dispute between the federation and a state or between the states themselves?
Both Sections 232 (1) and 251 (1) (a), (b) and (q) are authored by the same legislators and make up the same 1999 Constitution. It outrightly hits an effective interpreter of these Constitutional provisions that Section 251 (1) (a), (b) and (q) is not only subsequent in sequence to but more specific and special in tenor than Section 232 (1) of the Constitution. A reasonable construction of these provisions also admits the finding that the framers of the Constitution in providing for the first of the two provisions had contemplated the subsequent provision and in providing the subsequent one had not forgotten that the earlier provision had already been put in place.
The specific jurisdiction vested in the Federal High Court under Section 251 (1) (a), (b) and (q) is exercisable “notwithstanding anything to the contrary in the constitution” including the original jurisdiction conferred on the Supreme Court under the earlier Section 232 (1) of the same Constitution. The applicable principle of interpretation in this instance remains what Bairamian J. (as he then was) in delivering the judgment of the then West African Court of Appeal in Mrs F. Bamgboye v. Administrator-General 14 WACA 616 at page 619 stated thus:-
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provisions is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit: the general provision does not apply
The above rule of construction applies equally, of course, when the special and the general provision are enacted in the same piece of legislation: see Dryden v The Overseers of Putney (2).” 
(underlining mine for emphasis).
This Court in its decisions too numerous to readily fathom has cited with approval the foregoing dicta and imbibed the principle so adroitly enunciated therein. See The Governor of Kaduna State & Others v. Lawal Kagoma (1982) 6 SC 87 at 107-108; Kraus Thompson Organisation Ltd v. National Institute for Policy and Strategic Studies (2004) LPELR – 1714 (SC); (2004) 9 NWLR (Pt 879) 61 and Schroder v. Major (1989) 2 NWLR (Pt.101) 1 and Orubu v. NEC (1988) 5 NWLR (Pt.94) 323.

Paragraphs 12 and 13 of the plaintiff’s affidavit in support of the originating summons capture the thrust of the claim he seeks to raise by invoking the original jurisdiction of this Court under Section 232 (1) of the 1999 Constitution. The two paragraphs are hereinunder reproduced for ease of reference:-

“12. I verily believe that the Lagos State Government is entitled, to the exclusion of any other body, to collect any tax charged on the supply of all goods and services within the Lagos State of Nigeria under any law passed by the Lagos

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State House of Assembly and no other body or Government is entitled to a share of such tax as may be collected.
13. The Federal Government continues, through it agents, to administer the Value Added Tax Act and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of other States and distribute such tax in accordance with the fee sharing formula.”

Plaintiff’s grouse as captured inter-alia in the foregoing paragraphs is about a dispute between the Federal government and the governments of the States rather than between the federation and the various states. It is also a dispute pertaining to the operation of an agency of the Federal government, Federal Inland Revenue Service (F.I.R.S.), vis-a-vis an agency of the plaintiff. It is not unreasonable to also assess the dispute as one which seeks the interpretation and examination of the operation of the 1999 Constitution as it affects both sides to plaintiff’s suit. I do not have the slightest doubt that a dispute on all or any of these comes squarely within the purview of the jurisdiction the makers of the Constitution specifically provided the Federal High Court under Section 257 (a), (b) and (q) of the 1999 Constitution which provision tampers and conditions the original jurisdiction of this Court pursuant to Section 232 (1) of the same constitution. The plaintiff, whose claim clearly relates to the revenue of the Government of the federation, consequent upon the taxes one of its agencies levies and/or seeks the interpretation of the Constitution as to how the operation of the Constitution affects the 1st defendant or any of its agencies, is at the wrong court. This Court must decline jurisdiction. I so hold.

The 2nd ground upon which the preliminary objection predicates is on the abuse of the process of this Court by the plaintiff. The door has been shut against him. Had this Court found plaintiff’s suit as coming within the purview of Section 232 (1), it would have then become necessary to consider the 2nd leg of the objection raised against the suit. It is accordingly unnecessary to delve into the ground having declined jurisdiction for the reasons already articulated.

In sum, the preliminary objections raised against the competence of plaintiff’s suit having succeeded are hereby upheld. Plaintiff’s suit is resultantly struck-out for want of jurisdiction. I make no order on costs.

MAHMUD MOHAMMED, J.S.C.: By an Amended Originating Summons dated 10th August, 2009 and filed at the Registry of this Court on 12th August, 2009, the Plaintiff Lagos State through its Attorney-General, invoked the originating jurisdiction of this Court and sued the 1st Defendant, the Federation of Nigeria through the Attorney-General of the Federation and claimed that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other Legislative Body to enact Laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No.102 of 1993, now Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004, for the determination of the following questions.

1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an Act of the National Assembly?
2. If the answer is in the affirmative whether the combination of the provisions of Section 2, 4, 6 and 7 of the said Value Added Tax Act which empowered a Federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other States of the Federation?
3. If the answer to question 2 is in the affirmative, whether Sections 2, 3, 4,5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.

Upon the determination of the above questions, the Plaintiff claimed against the 1st Defendant the following reliefs –

a. A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria, 2004 is, to the extent that it provides for the imposition and collection of taxes or goods and services in Lagos State
(and other States of the Federation), outside the Legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
b. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provisions of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos States of Nigeria.

In support of the Originating Summons, the Plaintiff had filed a 19 paragraph affidavit to which various processes of pending or determined cases between the Plaintiff and several agencies of the Federal Government of Nigeria were exhibited.

The 1st Defendant entered appearance and filed a 6 paragraph counter affidavit and a Notice of Preliminary objection to the Plaintiff’s action asking this Court to strike out or dismiss the action for lack of jurisdiction or for being an abuse of the process of this Court. The Plaintiff also filed a brief of argument in support of its case on 12th August, 2009 but deemed filed on 22nd April, 2010 on the order of this Court. A number of Reply briefs of argument were also filed by the Plaintiff in response to the 1st, 29th and 30th Defendants briefs of argument and the 1st Defendant’s Notice of Preliminary Objection. The last of these Reply briefs was filed by the Plaintiff on 18th October, 2013. The counter-affidavit and the Notice of Preliminary Objection by the 1st Defendant were filed on 3rd February, 2010. In addition to the 1st Defendant’s amended brief of argument filed on 3rd February, 2010, a separate brief of argument was also filed for the 1st Defendant in support of its Notice of Preliminary Objection on the same date. Relevant processes comprising counter-affidavits and

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briefs of argument in support of the Plaintiff’s case or in support of the defence of the 1st Defendant have been variously filed by the 2nd to the 36th Defendants before this case was heard on 4th February, 2014.

When a preliminary objection is raised in an action such as the present one commenced by Originating Summons, it is always better to take the Preliminary Objection with the substantive that if the objection to the action succeeds, the case or action is terminated in-limine. If the objection fails however, then the Court will proceed to determine the substantive action on its merit. See Dapianlong v. Dariye (2007) 8 N.W.L.R. (Pt.1036) 332 and Amadi v. N.N.P.C. (2000) 10 N.W.L.R. (Pt.674) 75 at 100. In line with the requirement of the law and the practice of this Court, I shall proceed to consider the Preliminary Objection raised by the 1st Defendant to the Plaintiffs action filed against it. The duty of this Court and indeed any other Court where Preliminary Objection has been raised to the competence of an action, is to determine the objection first before looking into the substantive matter. See Onyekwuluje v. Animashaun & Ors (1996) 3 N.W.L.R. (Pt.439) 637 at 644.

I shall therefore proceed to look into the 1st Defendant’s Preliminary Objection to the present case which is predicated on the following grounds.

“GROUND 1
The Plaintiff’s cause of action relates to acts of a Federal organ and cannot form the basis of invoking this
Honourable Court’s original Jurisdiction to entertain this suit.

PARTICULARS
1. In Paragraph 8 of the Affidavit in support of the Amended Originating summons the Plaintiff admits as follows:
“An organ of the Federal Government of Nigeria was authorized to assess, collect, administer and manage the tax.”

In Paragraph 13 as follows:
“The Federal Government continues, through its agents, to administer the Value Added Tax and to assess and collect tax there under with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of the other States and distribute such tax in accordance with the fee sharing formula.”

And in Paragraph 19 as follows:
“Unless restrained by this Honourable Court I verily believe that the Federal Government will, through its agents, continue to implement the provisions of the Value Added Tax Act to the Detriment of the Lagos State Government…
2. The Federal Inland Revenue Service (F.I.R.S) is the Federal Government Organ and Agent charged and authorized to assess, collect, administer and manage the Value Added Tax. Consequently, the Federal Inland Revenue Service is a necessary party in the matter as all complaints of the plaintiff relate to acts of the Federal Inland Revenue Service.
3. Where an agency of the Federal Republic of Nigeria is or ought to be a party in a matter, the original
jurisdiction of the Supreme Court cannot be invoked.

GROUND 2
The entire suit constitutes an abuse of Court process and should be struck out.

PARTICULARS
1. In Paragraph 15 of the affidavit in support of the Plaintiff’s Amended Originating Summons, the Plaintiff admits that Plaintiff has been involved and is currently engaged in the following pending suits and/or appeals:
(a.) CA/L/23/04 M.A.N. v. A.G Lagos State
(b.) CA/L/428/05 A.G. Lagos State v. Eko Hotels
(c.) CA/L/727M/06 A.G. Lagos State v. M.A.N
(d.) ID/451/2002 (now CA/L/430/06)
(e.) ID/454/2002
(f.) ID/450/2002 (now CA/L/431/06)
(g.) ID/453/3002
2. The suits stated above are grounded on the same subject matter as this present suit and the Plaintiff ought to pursue these suits to their logical conclusion.
3. The Plaintiff in Paragraph 17 of the Affidavit in support of the Amended Originating Summons admits that suits No.ID/450/02 and ID/450/02 are currently on appeal.
4. The Plaintiff’s appeal in APPEAL No.CA/L/438/05 which touches on the same subject matter in this suit was dismissed and the Plaintiff has not lodged any appeal against the said judgment.
5. The Court of Appeal in its judgment in Appeal No. CA/L/428/05 declared the Plaintiff’s Sales Tax Law as null and void and on all matters on which the National Assembly has legislated.
6. That the Court of Appeal judgment in Appeal No.CA/L/428/05 was delivered on 13th July, 2007 and the Plaintiff admits this fact but filed this fresh matter before the Supreme Court in 2008.
7. The cause of action (if any) as disclosed in this suit can be properly determined in the above pending suits and/or appeals.”

In support of its Preliminary Objection, the 1st Defendant filed a brief of argument on 3rd February, 2010 which was duly adopted and relied upon by the learned senior counsel for the Defendant at the hearing of this case on 4th February, 2014. The first ground of the Preliminary Objection is that the Plaintiff’s cause of action relates to acts of a Federal organ

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and cannot form the basis of invoking the Original Jurisdiction of this Court to entertain the suit, while the second ground of the objection is that the entire action constitutes an abuse of Court process and should be struck out.

In the brief of argument, three issues were formulated for the determination of the 1st Defendants Preliminary Objection. The issues are –
“1. Whether the Supreme Court’s Original Jurisdiction can be invoked where the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of Court process.
3. Whether the Supreme Court Original Jurisdiction can be invoked where the acts and allegations constituting the main dispute are acts of an Agency of the Federal Government.”

In the argument in support of the first issue, learned Counsel after quoting the provisions of Section 232(1) of the 1999 Constitution outlining the Original Jurisdiction of this Court, submitted that for the Original Jurisdiction of this Court to be invoked successfully, there must be disclosed and exist a dispute between the Federal Government and the State. The cases of A.G. Bendel State v. A.G. Federation (1982) 3 N.C.L.R.1, A.G. Federation v. A.G. Abia State (2001) 11 N.W.L.R. (pt.625) 689 at 728 and A.G. Kano State v. A.G. Kano State v. A.G. Federation (2007) 3 S.C. 59 at 1 were cited and relied upon in support of argument that the Original Jurisdiction of this Court cannot be invoked in respect of the dispute between the parties in the present action as disclosed in paragraphs 7, 8, 13, 15 and 19 of the Plaintiff’s affidavit in support of the Originating Summons. Learned senior Counsel observed that from those paragraphs of the affidavit of the plaintiff, it is clear that the essence of the plaintiff’s complaint is that the collection of Tax on supply of goods and services by Federal Inland Revenue Service in Lagos State, has made it difficult and impossible for Plaintiff to collect tax on the supply of goods and services in Lagos State; that in the absence of any claim against any of the States, it is clear from the Plaintiff’s affidavit that the dispute in this case is between the Plaintiff and the Federal Inland Revenue Service, an agency of the Federal Government which cannot be resolved under Section 232(1) of the 1999 Constitution which provides for resolution of disputes between the Federation as a Unit and a State or between States as Units of the Federation.

As for the Plaintiff in the brief of argument in respect of the objection, there are only two issues for the determination of the 1st Defendant’s Preliminary Objection. The issues as identified by the Plaintiff are –
“1. Whether there is a Dispute between the Lagos State Government and the Federation in respect of the constitutionality of the Value Added Tax Act as it applies to Lagos State (as well as other States of the Federation) over which the Supreme Court may exercise adjudicative Original Jurisdiction?
2. Does the present action instituted by the Plaintiff amount to an abuse of process of this Honourable Court?”

Arguing the first issue as identified in the Plaintiff’s brief of argument, which issue is virtually the same as the 1st Defendant’s issue 1, learned senior Counsel to the Plaintiff stressed that the law is trite that the claim of the Plaintiff determines the jurisdiction of the Court as restated in A.G. Federation v. A.G. Abia State (2001) 11 N.W.L.R. (Pt.525) 689) 689 at 740 and Izenkwe v. Nnadozie 14 W.A.C.A 361 at 363; that looking at the questions for determination and reliefs sought by the Plaintiff against the 1st Defendant in the Originating Summons for declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria, 2004 which provided for the imposition and collection of taxes on goods and services in Lagos State (and other States of the Federation) outside the legislative competence of the National Assembly, is unconstitutional, null and void and of no effect whatsoever and the injunctive relief sought against the Federal Government of Nigeria restraining it from giving effect to the provisions of Sections 2, 4, 5, 6 and 7 of the Value Added Tax Act, has disclosed a conflict between the parties which comes squarely within the Original Jurisdiction of the Supreme Court by virtue of Section 232(1) of the 1999 Constitution and the case of A.G. Kano v. A.G. Federation (2007) 6 N.W.L.R. (Pt.1029) 164 at 182.

Learned senior Counsel to the Plaintiff referred to paragraphs 7, 8, 9, 10, 11, 12 to 15 of the affidavit in support of the Originating Summons and stressed that justiciable dispute between the Plaintiff and the 1st Defendant on the promulgation and application of the Value Added Tax Act in Lagos State touching on the legality or otherwise of the continued existence of the Value Added Tax as a law made by the National Assembly and the legality or otherwise of the continued collection of taxes by the Federal Government pursuant to the Value Added Tax Act, coupled with the unjust denial by the Federal Government of the exclusive right of the Plaintiff, Lagos State Government to receive proceeds of tax charged on the supply of all goods and services within Lagos State, leaves no one in doubt of the existence of a dispute capable of being entertained and resolved by this Court in exercise of its original jurisdiction under Section 232(1) of the 1999 Constitution and the cases of A.G. Federation v. A. G. Abia State (2001) 11 N.W.L.R. (Pt.725) 689 at 728 and A.G. Bendel State v. A.G. Federation & Ors. (1981) 10 S.C.1.

The second ground upon which the 1st Defendant challenged the jurisdiction of this Court to entertain the Plaintiff’s case is the fact that the reliefs claimed by the Plaintiff in its action invoking the Original Jurisdiction of this Court under Section 232(1) of the 1999 Constitution have already been litigated upon by the Plaintiff in various High Courts and the Court of Appeal in which various decisions have been reached for and against the Plaintiff, the present action in the Supreme Court is an abuse of the process of the Court. It was pointed out by the learned senior Counsel for the Plaintiff however, that since the claims of the Plaintiff “in respect of” issues in the cases outlined in its affidavit in support of the Originating Summons are not the same as those in the present case, and the parties not being the same as the parties in

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the present case, the complaint of the 1st Defendant of an abuse of process of Court can hardly arise in this case to justify this court to decline jurisdiction to entertain and determine the present case between the parties. Learned senior Counsel to the Plaintiff after very closely analysing the cases referred to in the affidavit of the Plaintiff in support of the Originating Summons and the principles of law laid down by this Court in the cases of Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt.264) 156 at 188, Okafor v. A. G. Anambra (1991) 3 N.W.L.R. (Pt.200) 659, Umeh & Anor. V. Iwu & Ors. (2008) 8 N.W.L.R. (Pt.1089) 225 at 243; Akilu v. Fawehinmi and Togun (No.2) (1989) 2 N.W.L.R. (Pt.102) 122 at 167, the parties and issues in the Plaintiff’s pending cases of the High Court and the Court of Appeal, not being the same as those in the present case, the complaint of the existence of abuse of process of Court is not apparent at all in the present case to affect the Original Jurisdiction of this Court to entertain the present case. Learned senior Counsel therefore urged this Court to dismiss the 1st Defendants Preliminary Objection and for the same reasons given, to also dismiss similar Preliminary Objections raised by the 1st, 14th, 24th, 30th and 35th Defendants.

Dealing with the first ground of the 1st Defendants Preliminary Objection to the invocation of the Originating Jurisdiction of the Court, the first port of the call is to look at the provision of Section 232(1) of the 1999 Constitution which conferred the jurisdiction on this Court. That Section states –
“232(1) The Supreme Court shall, to the exclusion of any other Court, have Original Jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
The rules governing the interpretation of Constitutional provisions such as the above provision, is that the Courts are enjoined to approach the construction of the provision liberally. By this, it is meant to construe, where the question is as to whether the expression used in the Constitution should be applied in the wider or narrower sense, the Court should, whenever, possible and in the interest of justice lean to the broader interpretation, unless there is something in the text or the rest of the Constitution indicating that the narrower interpretation will best carry on the object and purposes of the Constitution. See Rabiu v. The State (1980) 8-11 S.C. 130. The above provisions of Section 232(1) of the 1999 Constitution of the Federal Republic of Nigeria are in pari-materiawith the provisions of Section 212 of the 1979 Constitution of Nigeria which have been dealt with by this Court in many cases dealing with the invocation of the Original Jurisdiction of this Court. The criteria as stated in those cases before the Original Jurisdiction of this Court is invoked are that –
(a) There must be a justiciable dispute involving any question of law or fact.
(b) The dispute must be –
(i) Between the Federation and a State in its capacity as one of the Federating Constituent Units of the
Federation; or
(ii) between the Federation and more States that are in their capacity as members of the Constituent Units of the Federation; or
(iii) between the States in their capacities as members of the Constituent Units of the Federation.
See Attorney General of Bendel State v. A.G. Federation & Ors. (1981) 10 S.C. 1 at 32 – 33 where Bello JSC (as he then was) stated the position –
“….. To my mind from the papers filed and the submissions of learned Counsel, there is certainly dispute between the Plaintiff (Bendel State) which says the Act in dispute is invalid while the two institutions of the Federation, the Executive and the National Assembly assert its validity, and the Executive is duty bound to act upon it unless the Court declares it invalid. The dispute is real and has been hotly contested.”
With regard to the nature of the dispute and the type of parties that may activate the Original Jurisdiction of this Court under Section 232(1) of the 1999 Constitution which is in pari-materia with Section 212 of the 1979 Constitution, the cases of A.G. of Kano State v. A. G. of the Federation (2007) 6 N.W.L.R. (Pt.1029) 164 at 182 – 183 and A.G. of Anambra State v. A.G of the Federation (2007) 12 N.W.L.R. (Pt.1047) 4 at 42 – 43, are also relevant. From the interpretation of the provisions of Section 232(1) of the 1999 Constitution in the relevant cases referred to earlier in this judgment, it is quite clear that for this Court to exercise its Original Jurisdiction under that section, the Plaintiff’s action against the 1st Defendant, this Court has to be satisfied that the dispute for adjudication in the action is one between the plaintiff Lagos State of Nigeria as a constituent unit of the Federation of Nigeria and the Federation of Nigeria also as a distinct unit under the Constitution. The words used in Section 232(1) of the Constitution describing the parties are “the Federation,” “a State”, and “States.” In otherwords, the dispute must be between the Federation and a State or between the Federation and more than one State or between a State or States in their capacities as members of the Federating Units of the Federation of Nigeria. The Section in my view is not expected to provide avenue for the resolution of a State Nigeria disputes between the Federal Government of Nigeria and a State Government of Nigeria or between Government and another State Government of all of which are only products of elections. Therefore since the reliefs claimed by the plaintiff particularly the injunctive relief is against the Federal Government of Nigeria, its servants and its agencies, the relief not being against the Federation of Nigeria or any State or States of the Federation as constituent units of the Federation, is not within the purview of Section 232(1) of the 1999 Constitution to confer Original Jurisdiction on this Court. It is for this reason that I agree with my learned brother Musa Dattijo Muhammad JSC in his lead Ruling that the nature of the dispute disclosed in the identified paragraphs of the Plaintiffs affidavit in support of the Originating Summons, are such that the jurisdiction of this Court under Section 232(1) of the 1999 Constitution, cannot be properly invoked.

As for the second ground upon which the 1st Defendant challenged the jurisdiction of this Court to entertain the Plaintiff’s action namely – that the action itself is an abuse of the process of this Court, the circumstances giving rise to the filing of the action in this Court as contained in the affidavit in support of the Originating Summons particularly paragraph 15, and 17 thereof, are not at all in dispute. What the 1st Defendant is saying under this second

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head of its preliminary objection to the jurisdiction of this Court is that with the pending cases and appeals at the trial High Court and the Court of Appeal on the same subject of the validity of the Value Added Tax Act between the same parties, the present action by the Plaintiff at the Supreme Court on the same subject raising the same issues is an abuse of the process of this Court. Although my learned brother Musa Dattijo Muhammad JSC in the lead Ruling is of the view that the Preliminary Objection having succeeded on the first ground on jurisdiction there is no need to look into the second ground on abuse of the process of Court, it is my view that there is the need to look into it even briefly in order to say whether or not the Preliminary Objection on that ground having been strongly argued by the parties, also succeeded so as to leave the success of the objection on the issue of
jurisdiction to determine the final order. The law is indeed well settled that the effect of a Court finding that it has no jurisdiction to entertain a matter the proper order to make is one striking out the matter. See Okoye v. N. C. & F. Company Ltd. (1991) 6 N.W.L.R. (Pt.199) 501 at 534.

The law is trite that the employment of judicial process is only regarded generally as an abuse of process when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponents, and the multiplicity of actions on the same subject matter against the same opponent on the same issue. See Saraki v. Kotoye (1912) 9 N.W.L.R. (Pt.264) 156 at 188 and Okafor v. A. G. Anambra State (1991) 6 N.W.L.R. (Pt.200) 659 at 681. However, the case directly relevant to the present situation we have in this case is the case of A.G. Ondo State v. A.G. Ekiti state (2001) 17 N.W.L.R. (Pt.743) 706 at 771 where Karibi-Whyte JSC hit the nail on the head when he said –
“I agree with Mr. Adewale – Hon. Attorney General of Ekiti State, that the action seeking in this Court for a relief already before another Court in a pending action between the parties is without doubt an abuse of the judicial process. Plaintiff did not have an answer to the allegation – See Doma v. Adamu (1999) 4 N.W.L.R. (Pt. 598) 311 and Bena Plastic Industries v. Vasilyev (1999) 10 N.W.L.R. (Pt.624) 620.”

From the undisputed facts on the pending matters the Plaintiff has at the High Court and the Court of Appeal listed in paragraphs 15 and 17 of the affidavit in support of the Originating Summons seeking the declaratory reliefs touching on the power of the National Assembly to legislate on certain provisions of the Value Added Tax Act, some which reliefs had been already granted or refused by those Courts resulting in pending appeals at the Court of Appeal, the action of the plaintiff in refusing to appeal against that judgment of the Court of Appeal of 13th July, 2007 affirming the decision of the Federal High Court on the validity or otherwise of the provisions of the Value Added Tax Act complained of, only to file a fresh action in this Court after more than one year of the delivery of judgment by the Court of Appeal seeking the same reliefs sought at the High Court and the Court of Appeal, is certainly an abuse of the process of this Court and I so hold.

In the final analysis, I am of the strong view that the Preliminary Objection of the 1st Defendant must succeed on both grounds deserving to be upheld and accordingly I hereby uphold the same. Thus, the preliminary Objection having first succeeded on the issue of jurisdiction in addition to its success on the ground of abuse of process of Court, the most appropriate order to make upon upholding the preliminary Objection raised by the 1st Defendant in this action, is an order striking out the action for lack of jurisdiction to entertain it. Accordingly the plaintiff’s action against the 1st Defendant brought by Originating Summons dated 18th February, 2008 and filed on 20th February, 2008 which was subsequently amended by the leave of this Court resulting in the filing of an amended Originating Summons on 12th August, 2009, is hereby struck out with no order on costs.

JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the Ruling just handed out by my learned brother – M. D. MUHAMMAD, JSC. I agree with the reasons therein advanced as well as the conclusion arrived at by him that the original jurisdiction of this court, as it pertains to this matter; cannot be invoked.

For the importance attached to this matter, I take liberty to express my own opinion in support; even though briefly. The plaintiff in his Originating Summons seeks the following reliefs against the 1st defendant:-
“1. A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004 is, to the extent that it provides for imposition and collection of taxes on goods and services in Lagos State (and other States of the Federation), outside the Legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
2. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provisions of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.”

The Originating Summons was supported by a 19 paragraph affidavit to which was attached various exhibits.
A further affidavit deposed to on 14/3/2008 was filed by the plaintiff.

The 1st defendant filed a counter affidavit of 9 paragraphs dated 3/2/2010. A certified copy of a judgment of the Court of Appeal, Lagos Division in Appeal No.CA/L/428/05: A.G LAGOS STATE V. EKO HOTELS LTD. & ANOR marked HAG 1 was attached. The said judgment delivered on 13/7/2007 was delivered against the plaintiff. The 1st defendant contends that the subject matter therein, is the same as in this suit.

It should be stated that the 2nd – 36th defendants were earlier joined to protect their respective interests; as it were. On 3/2/2010, the 1st defendant field a notice of preliminary objection pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 wherein he prayed for an order striking out and /or dismissing the case in limine. The two grounds of the objection, without their particulars, read as follows:-

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“Ground 1: The plaintiff’s cause of action relates to act of a Federal organ and cannot form the basis of invoking this Honourable Court’s Original jurisdiction to entertain this suit.
Ground 2: The entire suit constitutes an abuse of court process and should be struck out.

In support of the 1st defendants brief of argument in respect of the preliminary objection, two issues decoded for determination read as follows:-
“1. Whether the Supreme Court’s original jurisdiction can be invoked when the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

The two issues distilled on behalf of the plaintiff for due determination, read as follows:-
“1. Whether there is a dispute between the Lagos State Government and the Federation in respect of the constitutionality of the Value Added Tax as it applies to Lagos State (as well as other States of the Federation) over which the Supreme Court may exercise exclusive jurisdiction.
2. Does the present action instituted by the plaintiff amount to an abuse of process of this Honourable Court?”

It is basic that jurisdiction is very fundamental in adjudicatory process. Whenever it is raised, as herein, it should be determined at the earliest opportunity. If a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.

It is apt at this point to reiterate some basic principles touching on Constitution at and/or Statutory interpretation.
It must be stated that broad interpretation; or liberal approach as often referred to, must be the watch-words. See: Rabiu v. The State (1980) 8-11 SC 130 at 151, 195. Related sections of the Constitution ought to be interpreted together to produce a harmonious result. See:Senator Abraham Adesanya v. President of the Federal Republic & anr (1981) 5 SC 112 at 134, 321; Akaighe v. Idama (1964) All NLR 322.The express mention of one thing in a Statutory provision automatically excludes any other stipulation which would otherwise have been applied by implication. See: Ogbunyiya v. Okudo (1979) 6-9 SC 32. It is the Expressio unius est exclusio alteriusRule which means that the express mention of one thing in a Statutory provision automatically excludes any other which otherwise would have been excluded by implication. See: P.D.P v. INEC (1999) 11 NWLR (Pt.626) 2000; Buhari v. Dikko Yusuf (2003) 14 NWLR (Pt.841) 466; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt.304) 139; Halsbury’s Laws of England 4th Edition, paragraph 876. Finally, specific provisions, are, by implication excluded from general provisions. See: Government of Kaduna State v. Kagoma (1982) 6 SC 87.

I now move to the consideration of the purport and essence of the provision of Section 232 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which mandates the Original jurisdiction of this court. It provides as follows:-
“232 (1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and, a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

It is now beyond dispute that the Federation of Nigeria is distinct and separate from the Federal Government of Nigeria which often, is a product of election. On the other hand, the Federation of Nigeria remains intact for all times; all things being equal. The two are not synonymous at all. To invoke the jurisdiction of this court under the above stated Section 232 (1) of the Constitution, there must be a dispute between the Federation and/or more States as component parts of the Federation or between States inter se. Since the Federal Government of Nigeria is not expressly mentioned in the said section it is excluded by implication- See: A.G Kano State v. A.G Federation (2007) 3 SC (Pt.1) 59; A.G Federation v. A.G Imo State (1993) 4 NCLR 178; A.G Benue State v. A.G Federation & Ors. unreported suit No. SC. 179/2006 delivered on 25th October, 2007 by a full panel of this court.

The plaintiff who prayed for an order of ‘perpetual injunction restraining the Federal Government of Nigeria by itself, it servants or any of its agencies from continuing to give effect to the provisions of the said Value Added Tax Act to impose and collect taxes on goods and services within Lagos State of Nigeria’ has approached the wrong court.

On behalf of the 1st defendant, it was submitted that the proper court to entertain the suit is the Federal High Court. It is apt to consider the provision of Section 251 (1) (a) (b) and (q) of the same Constitution for a harmonious interpretation of same along with Section 232 (1). It provides as follows:-
“251 (1): Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) 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;
(c) subject to the provisions of this Constitution the operation and interpretation of this Constitution in so far as it

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affects the Federal Government or any of its agencies.”

From the above, it is beyond doubt that it is the Federal High Court that is imbued with jurisdiction to the exclusion of any other court in civil causes and matters relating to the revenue of the Government; connected with or pertaining to taxation of companies and other bodies; the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies. It is clear that the exclusive jurisdiction conferred on the Federal High Court in Section 251 (1); excludes the original jurisdiction of this court generally provided in Section 232 (1) of the Constitution. I feel tempted to say that it is ‘Division of Labour’, to employ the Economist’s terminology that the Legislature had in mind. One cannot foray into the original jurisdiction realm of the other; as it were.

I agree that this court must decline the exercise of jurisdiction in this suit. This suit is hereby struck out for this reason.

The 2nd issue is whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute abuse of court process. I wish to touch this issue only in passing. Parties are ad idem (at one) that the issues raised in this suit are the same issues in several pending cases between the parties and/or agents. The most glaring one is the appeal in CA/L/428/05 in which the plaintiff’s appeal on the same subject matter was dismissed in July, 2007. Instead of appealing to this court, the plaintiff kept his peace on same.

In 2008, the plaintiff initiated this suit on the same subject matter herein. Same, to my mind has the semblance of forum shopping which no court of record should encourage or tolerate. This suit militates against the smooth administration of justice. Undoubtedly, this suit constitutes an abuse of court process in the extreme. Apart from further depicting the futility of the plaintiffs stance, I do not wish to go further in the academic exercise.

It is for the above and of course the comprehensive reasons adumbrated in the lead Ruling that I too feel that this suit should be struck out for want of jurisdiction. I order accordingly. Each party should bear his costs in the suit.

NWALI SVLVESTER NGWUTA, J.S.C.: I have read in draft the lead judgment just delivered by my
learned brother, Muhammad, JSC and I agree with the reasoning as well as the conclusion reached therein.

However, I desire to chip in a few words by way of comments and support.

The relevant facts, including the question raised in the Originating Summons and the claims predicated on the answers to the said questions have been set out with clarity in the lead judgment and it will serve no useful purpose to repeat them. I will proceed to deal with the preliminary objection of the 1st Defendant.

Upon service of the originating process on the 1st Defendant, its learned Counsel, A. O. Alegeh SAN from whom Daudu SAN took over as lead Counsel for the 1st Defendant, raised a preliminary objection to the suit. Pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 this Court was urged to terminate the case in limine on the two grounds hereafter reproduced shorn of their particulars:
“Ground 1: The Plaintiff’s cause of action relates to acts of a Federal organ and cannot form the basis of invoking this Honourable Court’s original jurisdiction to entertain this suit.
Ground 2: The entire suit constitutes an abuse of Court process and should be struck out.”

In the 1st Defendant’s brief of argument in the preliminary objection, the following two issues were raised for determination by this Court:
“1. Whether the Supreme Court’s original jurisdiction can be invoked when the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of Court process.”

In his response, learned Counsel for the plaintiff raised the following two issues for determination:
“1. Whether there is a dispute between the Lagos State Government and the Federation in respect of the constitutionality of the Value Added Tax Act as it applies to Lagos State (as well as other States of the Federation) over which the Supreme Court may exercise exclusive jurisdiction.
2. Does the present action instituted by the plaintiff amount to an abuse of process of this Honourable Court?”

Issue in both briefs are similar but I would prefer 1st Defendant’s issue 1 which questions whether there is a dispute between the Lagos State Government and the Federation in respect of the constitutionality vel non of the Value Added Tax Act to the plaintiffs issue 1.

I will adopt the two issues presented by the 1st Defendant in its brief of argument. To deal with the two issues, I need to consider the claims of the Plaintiff against the 1st Defendant, hereunder reproduced for ease of reference:
1. A declaration that the Value Added Tax Act, Cap VI, Laws of the Federal Republic of Nigeria, 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other States of the Federation) outside the legislative competence of the National Assembly and is therefore unconstitutional, null and void

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and of no effect whatsoever.
2. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provision of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.”

My noble Lords, while it is a given and admits of no argument to the contrary, that the Federal Government of Nigeria can, and does, act by its agencies such as the Board of Inland Revenue Service, the plaintiff appears to equate the Federal Government of Nigeria with the Federation of Nigeria. In my humble view, the Federal Republic of Nigeria is different and distinct from the Federal Government of Nigeria.

Section 2 (1) of the Constitution of the Federal Republic of Nigeria provides:
“S.2 (1): Nigeria is one indivisible and indissoluble sovereign State to be known by the name of the Federal Republic of Nigeria.”
S.2(2) Nigeria shall be a Federation consisting of the States and a Federal Capital Territory.”
On the other hand, with respect to the Government, be it the Federal Government or State Government, Section 14 (2) of the Constitution (supra) provides:
“S.14(2): It is hereby, accordingly, declared that –
(a) sovereignty belongs to the People of Nigeria from whom government through this Constitution derives all its powers and authority.”
The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria whereas the Federal or State Governments, in contradistinction, are donees of the powers and authority of the people. A Government is a trustee of the power and authority of the people given through elections. Under the Constitution, the government at Federal and state levels comes and goes. Every four years the mandate is renewed or lost at the elections, but the Federation enures in perpetuity.

From the claims in the Originating Summons, it is beyond doubt that the plaintiff sued the Federal Government of Nigeria and not the Federation. The question is: can a claim against the Federal Government or its agency ignite the original jurisdiction of the Supreme Court?

Section 232 of the Constitution (supra) is hereunder reproduced:
“S.232:
(1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute
between the Federation and a State or between States if and in so far as that dispute involves any
question (whether of law or fact) on which the existence or extent of a legal depends.
(2) In addition to the jurisdiction conferred upon it by subjection (1) of this Section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly.”

The dispute herein is not between the Federation and the plaintiff. It is between the plaintiff and the Federal Government of Nigeria. See relief No.2 by which the plaintiff sought injunction not against the Federation but against the Federal Government of Nigeria, an entity not subject to the original jurisdiction of this Court. No Act of the National Assembly has expanded the original jurisdiction of this Court to include disputes involving the Federal Government of Nigeria pursuant to subsection 2 of Section 1 of Section 232 of the Constitution (supra).

I think that the plaintiff had the mistaken idea that the Federal Government of Nigeria is synonymous with the Federation or Federal Republic of Nigeria. The dispute is not within the purview of Section 232 of the Constitution (supra). I am fortified in this view by the judgment of this Court in Attorney-General Kano State v. Attorney-General Federation (2007) 3 SC (Pt. 1) 59 wherein it was held, inter alia:

“It is quite clear from the numerous decisions of the Supreme Court that in order to invoke the original jurisdiction of the Supreme Court under Section 232(1) of the 199 Constitute, there must be a dispute between the Federation and one or more States as component part of the Federation or between States themselves…”

To ignite the original jurisdiction of the Supreme court under Section 232(1) of the 1999 Constitution (as amended), the dispute must be between the whole (Federation) as it were and part or parts thereof, i.e. States as component parts of the whole (Federation) or between States as component parts of the Federation. The preliminary objection on ground one is well taken.

Ground Two on abuse of Court process: Abuse of process of Court consists of an improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent. Multiplicity of actions which involve the same subject matter amount to abuse of Court and the Court has a duty to stop such abuse. See Okorodudu v. Okoromadu (1977) 6 NWLR (Pt.2001) 659 at 681; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188.
The list of what constitutes abuse of process of Court is open-ended. It includes raising same issues as in other actions or indeed raising in a subsequent action matters which should have been litigated in the earlier action. See Thames Launettes Ltd v. Corporation of the Trinity Home of Deptford Strand (1961) All ER 26 at 32, 33;Akandipe v. Coptors (2000) 78 LRCN 1692 at 1699. It involves lack of good faith in the action. See Federal Republic of Nigeria v. M. K. O. Abiola (1997) 2 NLCR 44.

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Relating the above to the case at hand, it is admitted by the plaintiff that it is currently engaged in the following cases:
(1) CA/L/23/04 M.A.N. v. AG Lagos State.
(2) CA/L/428/05 AG Lagos State v. Eko Hotels.
(3) CA/L/727M/06 AG Lagos State v. M.A.N.
(4) CA/L/430/06
(5) ID/454/2002
(6) CA/L/431/06
(7) ID/453/2002
Either these cases are on the same subject matter, touch the same subject matter or involve matters which should have been disposed of in earlier cases or which can be settled in a later case. See The Thames case (supra).

Moreover, in Appeal No.CA/428/05, the Court of Appeal, Lagos Division, dismissed the plaintiff’s appeal on its Sales Tax Law, a matter directly an issue in this case. The Court of Appeal delivered its judgment on 13th July, 2007. The plaintiff as the appellant in the appeal has not deemed it necessary to appeal the judgment, and so the matter is Sales Tax Law being null and void is deemed been settled between the parties. See Omoregbe v. Lawani (1980) 3-4 SC 108.
It amounts to abuse of process of Court for the plaintiff to bring the matter afresh before this Court by resort to forum shopping. In my view, the said ground of the preliminary objection is also well-taken.
Notwithstanding what is said in issue 2, the said issue has been rendered academic by the resolution of issue 1 in favour of the 1st defendant. The preliminary objection is sustained on the 1st defendant’s issue 1.
For the above and the fuller reasons in the lead judgment, I agree that the case of the plaintiff ought to be, and is hereby struck out. Parties shall bear their respective costs.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Musa Dattijo Muhammad JSC and just for emphasis in support of the reasoning I shall make some comments.

The plaintiff in seeking to invoke the original jurisdiction of this court took out an Originating Summons for a declaratory judgment on the 25th February, 2008 and on the 12th day of August, 2009 filed an Amended Originating Summons which asked the following questions and made claims both of which are stated hereunder, viz:

1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an act of the National Assembly.
2. If the answer is in the affirmative, whether the combination of the provisions of Section 2, 4, 6, and 7 of the said Value Added Tax Act which empower a Federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other States of the Federation. From here on, these are the facts the plaintiff relied on for the foregoing claims.
3. If the answer to question 2 is in the affirmative, whether Sections 2, 4, 6, and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under section 4 of the 1999 constitution.

By this summons the plaintiff claims against the 1st defendant:
1. A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other states of the Federation), outside the legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
2. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provisions of the said value added tax act to impose and collect taxes on goods and services within the Lagos State of Nigeria.
3. The plaintiff is the Chief Law Officer of the Lagos State Government which said Government, through its House of Assembly, is authorized to make laws (including tax and revenue laws) for the peace, order and good government of the state with regard to:
(a) Matters not included in the Exclusive Legislative List set out in the first column of part I of the Second Schedule the Constitution of the Federal Republic of Nigeria 1999;
(b) Matters included in the Concurrent Legislative List set out in the first column of the Part II of the Second Schedule to the said constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of the said constitution.
4. The 1st defendant is the Chief Law Officer of the Government of the Federal Republic of Nigeria which said government, through the National Assembly, is authorized to make laws (including tax and revenue laws) for peace, order and good government of the Federation or any part thereof with regard to:
(a) Matters included in the Exclusive Legislative List set out in part I of the Second Schedule to said Constitution, save as otherwise provided in the said constitution, to the exclusion of Houses of Assembly of the States;
(b) matters included in the Concurrent Legislative List set out in the first column of Part II of the Second schedule to

…………………….O…………………….

the said constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of the said constitution.
5. The 2nd of the 36th defendants are the Chief Law Officers of their respective State Governments which said governments, through their respective Houses of a Assembly, are authorized to make laws (including tax and revenue laws) for the peace, order and good government of their respective states with regard to:
(a) Matters not included in the Exclusive Legislative List set out in the first column of part I of the Second Schedule the Constitution of the Federal Republic of Nigeria 1999;
(b) matters included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the said Constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of the said Constitution.
6. The said 2nd to the 36th defendants are persons whose State Governments are likely to be affected by any judgment that may be delivered in this case.
7. Sometime in 1993 the Federal Military Government of Nigeria (as it then was) promulgated a Decree, the Value Added Tax Decree No. 102 of 1993, to impose and charge value Added Tax on certain goods and services and to provide for the administration of the tax and matters related thereto. The decree came into effect on the 1st day of December 1993.
8. An organ of the Federal Government of Nigeria was authorized to assess, collect, administer and manage the tax.
9. Any such tax collected was distributed amongst the three tiers of government, federal, and state and local government as per the distribution formula in force at the given time and from the 1st day of January
1999 to date the formula has been as follows:
(a) To the Federal Government 15%
(b) To the State Governments and the Federal Capital Territory 50%; and
(c) To the Local Governments 35%
10. With effect from the 16th day of April, 2007, however:
(a) The 50% for distribution to the State Government and the Federal Capital Territory was to reflect the principle of derivation of not less than 20%; and
(b) Similarly, the 35% for distribution to the Local Government was to reflect the principle of derivation of not less than 20%
11. The Value Added Tax Decree remains on the statute books as the Value Added Tax Act Cap. VI Laws of the Federal Republic of Nigeria 2004.
12. I verily believe that the Lagos State Government is entitled, to the exclusion of any other body, to collect any tax charged on the supply of all goods and services within the Lagos State of Nigeria under any law passed by the Lagos State House of Assembly and no other body or Government is entitled to a share of such tax as may be collected.
13. The Federal Governments continues, through its agents, to administer the Value Added Tax Act and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of other States and distribute such tax in accordance with the fee sharing formula.
14. I verily believe that the administration of the Value Added Tax Act and the assessment and collection of tax thereunder with regard to the supply of goods and services with the Lagos State of Nigeria wand within the territories of other State and the distribution of such tax in accordance with the fee sharing formula since the 29th day of May, 1999 is illegal and it represents a wrong and unjust denial by the Federal Government of the right of the Lagos State Government to receive the proceeds of such tax with regard to the supply of gods and services within the Lagos State of Nigeria.
15. The Lagos State Government is encountering tremendous difficulty in enforcing its right to collect tax on the supply of all goods and services with the territory of Lagos State as many taxable persons have resisted or are resisting such attempt in the belief that the Federal Government of Nigeria is the body authorized to collect such tax. This is evinced by the following cases some of which are pending whilst others have been concluded. The cases include:
(a) ID/105/01 in which judgment was delivered on the 14th day of November, 2003 in favour of the plaintiff herein.
(b) CA/L/23/04 a pending appeal from the judgment in (a):
(c) CA/L/727M/06 another pending appeal from the judgment in (a);
(d) FHC/L/205/04 in which judgment was delivered on the 24th day of December, 2004 against the plaintiff herein.
(e) CA/L/428/05 in which the appeal against the judgment in (d) was dismissed on the 13th day of July, 2007.
(f) ID/REV/1/2003 in which judgment was delivered on the 18th day of April 2007;
(g) ID/451/2002;
(h) ID/454/2002 which is still pending.
(i) ID/450/2003 which is still pending;
(j) ID/453/2002 which is still pending;
16. Now shown to me annexed herewith and marked Exhibits A, A1, B, C, D, and E respectively are true copies of the processes referred to in sub-paragraphs (a), (c), (d), (f) and (i) of paragraph 15 foregoing.
17. I am aware that the decisions in suits No.ID/451/02 – P. Z. Industries & Anor v. Lagos State Board of Internal Revenue and ID/450/000 – Dunlop Nigeria Plc & Anor v Lagos State Board of Internal Revenue above have been appealed. Now shown to me as exhibit G & H respectively are exhibited true copies of Notices of Appeal suit No CA/L/431/06 and CA/L/430/06 against the decisions in Suit No.ID/451/02 and ID/450/02 respectively. The said appeals are pending in the Court of Appeal. The said appeals are pending in the Court Appeal.
18. I state that on the 13th July, 2007, judgment was delivered on the Court of Appeal against the appeal filed by the plaintiff against the judgment delivered in suit No.FHC/L/CS/205/04 by the Federal High Court, Lagos. Now shown to me

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annexed as exhibit J is a certified true copy of the judgment of the Court of Appeal.
19. Unless restrained by this Honourable Court I verily believe that the Federal Government of Nigeria will, through its agents, continue to implement the provisions of the Value Added Tax Act to the detriment of the Lagos State Government. Paragraph 3 – 16 are all the facts in support of the two claims above.

1st defendant raised a preliminary Objection on the 3rd day of February, 2010 and the Brief of Argument hereto deemed properly filed on the 3/2/10.
Some defendants went along the position of the 1st defendant in opposition to the suit, while some others were in favour of the stance of the plaintiff. In that line of divide the various Briefs of Arguments were adopted by respective counsel on their behalf.

As the situation is, there is no beating about the bush that the Preliminary Objection of the 1st defendant and so attacked by the plaintiff and those in their side of the divide would be confronted firstly in order to see if the court has the vires to go into the merits of the Originating summons suit.

The 1st defendant prays in the preliminary Objection for this court to strike out and/or dismiss this suit on the grounds set out in the schedule which are shown hereunder, viz:

SCHEDULE ABOVE REFERRED
GROUND 1
The plaintiff’s cause of action relates to acts of a Federal organ and cannot form the basis of invoking this Honorable Court’s Original jurisdiction to entertain the suit. 

PARTICULARS
1. In Paragraph 8 of the Affidavit in support of the Amended Originating summons, the plaintiff admits as follows:
“An organ of the Federal Government of Nigeria was authorized to assess, collect, administer and mange the tax.

In paragraph 13 as follows:
“The Federal Government continues, through its agents, to administer the Value Added Tax Act and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of other States and distribute such tax in accordance with the fee sharing formula”

And in Paragraph 19 as follows:

“Unless restrained by this Honourable Court I verily believe that the Federal Government of Nigeria will, through its agents, continue to implement the provisions of the Value Added Tax Act to the detriment of the Lagos State Government”.
2. The Federal Inland Revenue Service (FIRS) is the Federal Government Organ and Agent charged and authorized to assess, collect and administer and manage the Value Added Tax. Consequently, the Federal Inland Revenue Service is a necessary party in the matter as all complaints of the plaintiff relate to acts of the Federal Inland Revenue Service.
3. Where an agency of the Federal Republic of Nigeria is or ought to be a party in a matter, the original jurisdiction of the Supreme Court cannot be invoked.


GROUND 2
The entire suit constitutes an abuse of court process and should be struck out.

PARTICULARS
1. In Paragraph 15 of the affidavit in support of the plaintiffs Amended Originating Summons the plaintiff admits that plaintiff has been involved and is currently engaged in the following pending suits and/or appeals:
(a) CA/L/24/04 M. A. N. v. A. G LAGOS STATE
(b) CA/L/428/05 AG. LAGOS STATE v EKO HOTELS
(c) CA/L/727M/06 LAGOS STATE V. M.A.N.
(d) ID/451/2002 (now CA/L/430/06)
(e) ID/454/2002
(f) ID/450/2002 (now CA/L/431/06)
(g) ID/453/2002
2. The suits stated above are grounded on the same subject matter as this present suit and the plaintiff ought to pursue these suits to their logical conclusion.
3. The plaintiff in paragraph 17 of the affidavit in support of the Amended Originating Summons admits that Suits No.ID/450/2002 and ID/451/2002 are currently on appeal.
4. The plaintiffs appeal in Appeal No.CA/L/428/05 which touches on the same subject matter in this suit was dismissed and the plaintiff has not lodged any appeal against the said judgment.
5. The Court of Appeal in its judgment in Appeal CA/L/428/05 declared the plaintiffs Sales Tax Law as null and void on all matters on which the National Assembly has legislated.
6. That the Court of Appeal judgment in Appeal No. CA/L/428/05 was delivered on 13th July, 2007 and the plaintiff admits this fact but filed this fresh matter before the Supreme Court in 2008.
7. The cause of action (if any) as disclosed in this suit can be properly determined in the above pending suits and/or

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appeals

On the 4th day of February, 2014 date of hearing, learned Senior Advocate, J. B. Daudu set off the arguments by firstly adopting the Brief of Argument settled by Augustine O. Alegeh SAN and in which were raised two issues for determination stated as follows:

1. Whether there is a dispute between the Lagos State Government and the Federation in respect of the Constitutionality of the Value Added Tax Act as it applies to Lagos State (as well as other states of the Federation) over which the Supreme Court may exercise exclusive jurisdiction?
2. Does the present action instituted by the plaintiff amount to an abuse of process of this Honourable Court?

Learned counsel for the plaintiff adopted their Brief of Argument in response to the Preliminary Objection which response was filed on 19/4/10 and he utilized the two issues as crafted by the 1st defendant’s counsel.

ISSUE NO 1
Whether the Supreme Court’s original jurisdiction can be invoked where the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.

Learned counsel for the 1st defendant, J. B. Daudu SAN submitted that the original jurisdiction of the Supreme Court is provided for in Section 232(1) of the Constitution of the Federal Republic of Nigeria. That the Supreme Court’s additional jurisdiction provided for in Section 20 of the Supreme Court Act, Cap 424, Law of the Federation, 1990 (Cap S15 LFN 2004) as well as the Supreme Court (Additional Original Jurisdiction Act) Cap 516 Laws of the Federation of Nigeria, 2004 are not relevant in these proceedings. That for the Supreme Court’s original jurisdiction to be successfully invoked there must be disclosed and exist a dispute between the Federal Government and the State. He cited the cases of A.G. Bendel State v A. G. Federation (1982) 3 NCLR 1; A. G. Federation v. A. G. Abia State (2001) 11 NWLR (Pt.625) 689 at 728; A. G. Kano State v. A. G. Federation (2007) 3 SC 59.

For the 1st defendant was further stated that the essence of plaintiffs complaint is that the collection of Tax on supply of goods and services by FIRS in Lagos State, has made it difficult and almost impossible for plaintiff to collect tax on the supply of goods and services in Lagos State. He said in this instance where the acts and allegations complained about by the plaintiff are acts of a Federal Government Agency, the original jurisdiction of this court cannot be invoked pursuant to Section 232 (1) of the 1999 constitution. He said the ignition of such original jurisdiction has to do with a dispute between the Federation and States or between States inter se which is not the situation on ground which is a dispute between the plaintiff and the Federal Inland Revenue Service (FIRS), a Federal Government Agency and the proper court for such a dispute being the Federation High Court. He stated that the issue has been laid to rest recently by this court on the 25th October, 2007 in suit No SC.179/2006; Attorney General Benue State v. Attorney General of Federation and 35 Ors.

In reaction learned counsel for the plaintiff submitted that it is the claim of the plaintiff that determines the jurisdiction of the court. He cited A. G. Federation v A. G. Abia State (2001) 11 (Pt.625) 689 at 740; Izenkwe v Nnadozie 14 WACA 361 at 363.

He stated after referring to paragraphs 7, 8, and 12 of the supporting affidavit of the plaintiff that there is a dispute between plaintiff and the Federation. That the gravamen of the claim of plaintiff is the unconstitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the said Act which tax is being collected by an agency of the Federal Government. That the plaintiff is challenging the constitutionality of the Act and the continued giving effect to it by the 1st defendant to the detriment of the plaintiff.

Learned counsel for the plaintiff further contended that the plaintiff has no dispute with the Federal Inland Revenue Service which 1st defendants said carried out the acts complained of. That the plaintiff did not mention the Federal Inland Revenue Service which is a mere agent. He cited A. G. Lagos State v A. G. Federation & Ors (2003) 12 NWLR (Pt.833) 1 etc distinguishing them with the case in hand and referring to A. G. Abia State v A.G. Federation (2007) 6 NWLR (Pt.1029) 200 etc as those where the Supreme Court assumed original jurisdiction.

It was submitted for the plaintiff that an examination of the cases in which this court declined original jurisdiction and those in which it assumed the original jurisdiction is that in deciding which way to go what matters is who the real disputants are which will be ascertained from the crux of the complaint. In that wise therefore the mere fact that the act challenged is that of an agency does not, without more, mean that the Supreme Court has no original jurisdiction.

For the plaintiff was contended that the essence of their complaint is that the collection of tax on the supply of goods and services by the FIRS in Lagos State has made it difficult and near impossible for the plaintiff to collect tax on the supply of goods and services in Lagos State. That a proper examination of the complaint of the plaintiff is the competence of the National Assembly to make the Value Added Tax Act and the validity of that Act. Learned counsel went on to state that any complaint about the collection of tax on the supply of goods and services in Lagos State, not in any event by FIRS but by the Federal Board of Inland revenue, to the detriment of the plaintiff is merely to show the injury the plaintiff has suffered by the implementation of the legislation, the validity of which it was challenging with a view to showing that it has the locus standi to challenge the validity of the Act. That it is well established that, to maintain a cause of

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action, a plaintiff is expected to show the injury suffered or that may be suffered by the implementation of the act complained of. He relied on Owodunni v Registered Trustees of Celestial Church of Christ & Ors (2000) 10 NWLR (Pt.675) 315; A. G. Anambra State & Ors v A. G. of the Federation & Ors (2005) 18 NWLR (Pt.958) 581.

To refresh the mind on the background facts seems necessary here and these are stated thus:
The VAT Act was enacted in 1993 and the Federal Inland Revenue Service (FIRS), a Federal Government Agency, was authorized to assess, collect, administer and manage the tax. The tax was levied on all sales and supply of goods and services in the federation excluding the goods and services set out in the First Schedule to the VAT Act.

The FIRS has been performing this function and the tax collected shared amongst all the states of the federation, including the plaintiff in the manner set out in the VAT Act. The sharing formula was reviewed in 2007 and the plaintiff has been participating in the sharing from the VAT proceeds collected by FIRS under the VAT Act.

The plaintiff subsequently enacted and sought to enforce a Sales Act Law in Lagos State in respect of the sales and supply of goods and services covered by the VAT Act being administered and managed by the FIRS. This Lagos State Tax Law was resisted thereby creating a conflict between the plaintiff and the FIRS which is the federal government agency, managing and administering the VAT Act. This conflict brought about the initiation of several suits touching on the constitutionality of the VAT Act between the plaintiffs, the Lagos State Board of Inland Revenue against the Federal Government and its Agency and agents in various configurations. Some of these suits have been concluded while some others are still pending in various courts between the same parties as in the present action.

It is on record that the plaintiff herein lost in some of these suits aforesaid at the Federal High Court and the Court of Appeal and it was during the pendency of the suits stated above that this action was filed by the plaintiff directly to the Supreme Court against the defendants, invoking the original jurisdiction of theApex Court.

I shall cite Section 232 (1) of the Constitution of the Federal Republic of Nigeria upon which this original jurisdiction may be activated.

“232 – (1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.

The plaintiffs have come here in this guise contending that their grouse is within the ambit of Section 232(1) of the 1999 Constitution quoted above. The 1st defendant and some others reject that view and for effect have brought the preliminary objection which is now being considered.

Mr. Daudu SAN for the 1st defendant submitted that for this original jurisdiction of the Supreme Court to be invoked as it is being sought now, there must be disclosed and exist a dispute between the federal government and the state. He cited A.G. Bendel State v A. G Federation (1982) 3 NCLR 1; A.G. Federation v A. G. Abia State(2001) 11 NWLR (pt. 625) 689 728; A. G. Kano State v A. G. Federation (2007) 3 SC 59 at 1.

He stated that the allegation and acts constituting the dispute subject matter of this appeal can be gleaned from paragraphs of the plaintiff’s affidavit in support of the originating summons specifically paragraphs 7, 8, 13, 15, 19 which show that the essence of the plaintiff’s complaint is that the collection of tax on the supply of goods and services by FIRS in Lagos State has made it difficult for the plaintiff to collect tax on the supply of goods and services in Lagos State. That this translates to a complaint against acts of a Federal Government Agency which is different from the Federal Government itself or the Federation and so the proper court to attend to such a dispute is the Federal High Court and not the Supreme Court directly. He cited Attorney General Benue State v Attorney General of Federation and 35 Ors. in suit No.SC.179/2006.

Responding, learned counsel for the plaintiff, Mr. Sofunde SAN contended, that it is settled law that it is the claim of the plaintiff that determines the jurisdiction of the court and they are in good standing here. He cited A. G. Federation v A. G. Abia State (2001) 11 NWLR (Pt.625) 689 at 740; Izenkwe v Nnadozie 14 WACA 361 at 363.

It seems to me that the case of Attorney General Benue State v Attorney General of Federation and 35 Ors(unreported) in Suit No.SC.179/2006 is apposite to the present situation and the decision of this court in a lead ruling delivered by Dahiru Musdapher JSC (as he then was) appropriate for what we are faced with here and now. I shall quote the relevant partitions hereunder, viz:

“It is clear from the claims that no dispute was shown to arise between the plaintiff and the defendant i.e. the Federal Government. The allegations and claims arose from acts of EFCC and strictly it is not a dispute between the Federal Government and Benue State Government. The reliefs sought could be entertained at the Federal High Court. The provisions relating to the original jurisdiction of this court is clearly limited to disputes between the Federation and States or between States inter se, it is not correct to bring a general claim by merely inserting the names of the parties when the claims do not explicitly indicate so. The substantive claims must be properly examined to see whether they meet with the constitutional requirement or not…”

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The above cited Attorney General of Benue State v. Attorney General of Federation (supra) cannot be equated to the authorities cited by the plaintiff which do not go to the answering of whether or not the original jurisdiction of this court can be validly agitated in circumstances involving the State Government of Lagos and the Federal Government on the right of the Federal Inland revenue as against the Lagos State Board of Inland Revenue to collect VAT for goods and services within the territory of Lagos State. The plaintiff had cited A. G. Bendel State v A. G. Federation & Ors (1981) 12 NSCC 314 and some other cases. However going into the Attorney General of Benue State v. Attorney General of Federation (supra). The ratio decidendi was estoppel and whether or not the legislative process was followed by the National Assembly in the passing of the Allocation of the Revenue (Federation Account etc) 1991, the Act was valid or not which is different from whether the invocation of the original jurisdiction of the Supreme Court could rightly be made in that circumstance in 1981. I agree there is a semblance of a thin line in the facts of the earlier case taken alongside the present. That is not tantamount to the A. G. Bendel State case (supra) being an authority or guide for the matter in hand. The two situations are clearly different whatever may present as a resemblance.

In the case in hand, going into the claims which are usually the beacon of guide as to jurisdiction or what the cause of action is, what I see clearly are claims that cannot be described as dispute between the Lagos State and the Federation. It is rather a dispute between the Lagos State and an agency of the Federal Government that is the Federal Inland Revenue Service (FIRS) in its management and operation of the Value Added Tax (VAT). Therefore the matter cannot by a long shot be programmed for one of those instances where the original jurisdiction of the Supreme Court can be set in motion, under the ambit of Section 232 (1) of the 1999 Constitution. This position is strengthened by a long line of cases of this court including A. G. Kano State v A.G. Federation (2007) 3 SC 59 where this court put forward the purport and meaning of the said Constitutional provision of Section 232 (1) as follows:

“(1) A justiciable dispute involving any dispute of law;
(2) The dispute must be between the Federation and a state in its capacity as one of the constituent units of the Federation:
(3) Disputes between the Federation and one or more States that are in their capacities as members of the constituent units of the Federation or
(4) Disputes between States in their aforesaid capacities and the dispute must be one on which the existence or extent of a legal right in the aforesaid capacity is involved”

Mohammed JSC went further in amplification and stated thus:

“It is quite clear from the numerous decisions of this court that in order to invoke the original jurisdiction of this court under Section 232 (1) of the 1999 Constitution, there must be a dispute between the federation and one or more States as component part of the Federation or between the States themselves.”
See also A. G. Federation v A. G. Imo State (1993) 4 NCLR 178.

From the above in context with the claims of the plaintiffs within paragraphs 7, 8, 13, 15 and 19 stated with clarity their grouse and in so showing have placed on the table without realizing upon whom their displeasure rests which I see to be the Federal Inland Revenue Service (FIRS), though an agency of the federal government but is not the federal government or even the Federation simpliciter. Therefore coming to this court as of first instance is akin to an expression which I cannot resist utilizing, which is “knocking at the wrong door”. The appropriate first port of call being the Federal High Court from where the matter could climb up to the Supreme Court.

The Issue 1 is without question resolved against the plaintiff and in favour of the 1st defendant, and it is that the original jurisdiction of the Supreme Court cannot be agitated in this matter which is now validly before the Court of Appeal which has assumed jurisdiction in CA/L/727/M/06. The only option open to this court as at now since it lacks jurisdiction to entertain this suit in its original power is a striking out. Therefore in the light of the reasons above and well adumbrated reasoning of my brother, M. D. Muhammad JSC, I strike out the suit. I abide by the consequential orders already made by him.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: By an amended originating summons filed on 12/8/2009 but deemed properly filed on 4/2/2010, the Hon. Attorney General of Lagos State as plaintiff claims against the Hon. Attorney General of the Federation (1st defendant) as follows:

“That the House of Assembly of the Lagos State of Nigeria is the body entitled, to the exclusion of any other legislative body; to enact laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria, or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of the Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No. 102 of 1993, now Value Added Tax Act Cap V1 Laws of the Federal Republic of Nigeria 2004, for the determination of the following questions.
1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria 1999, the said Value Added Tax Act is an existing Law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an act of the National Assembly?
2. If the answer is in the affirmative, whether the combination of the provisions of Sections 2, 4, 6 and 7 of the said Value Added Tax Act which empower a federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of

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all gods and services within the Lagos State of Nigeria and within other States of the Federation?
3. If the answer to question 2 is the affirmative, whether Section 2, 3, 4, 5, 6, and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.”

The plaintiff therefore seeks the following reliefs against the 1st Defendant:
1. “A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other states of the Federation), outside the legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
2. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provisions of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.”

The 2nd – 36th defendants, Attorneys General of the remaining states of the Federation were made parties to the suit, as they are likely to be affected by the outcome of the action.

In support of the originating summons is a 19-paragraph affidavit with various exhibits annexed thereto, including copies of proceedings that are either pending or have been concluded in various courts involving the plaintiff and various parties in respect of its power to impose and collect taxes on the supply of all goods and services within Lagos State. Also in support is a further affidavit deposed to on 14/3/2008.

The 1st defendant filed a 9-paragraph counter affidavit dated 3/2/2010 with one exhibit annexed thereto marked HAG 1. It is a certified copy of a judgment of the Court of Appeal, Lagos Division in Appeal No. CA/L/428/05: A.G. LAGOS STATE VS EKO HOTELS LTD. & ANOR. delivered on 13/7/2007 against the plaintiff, which the 1st defendant contends is on the same subject matter as the instant suit. On the same date, i.e. 3/2/2010 the 1st defendant filed a notice of preliminary objection to the suit seeking an order striking out and/or dismissing it. The grounds for the objection are as follows:

“GROUND 1
The Plaintiff’s cause of action relates to acts of a Federal organ and cannot form the basis of invoking this Honourable Court’s original jurisdiction to entertain this suit.

PARTICULARS
1. In Paragraph 8 of the Affidavit in support of the Amended originating summons the Plaintiff admits as follows:

“An organ of the Federal Government of Nigeria was authorized to assess, collect, administer and manage the tax.”

In paragraph 13 as follows:

“The Federal Government continues, through its agents, to administer the Value Added Tax and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of the other States and distribute such tax in accordance with the fee sharing formula”

And in paragraph 19 as follows:

“Unless restrained by This Honourable Court I verily believe that the Federal Government will, through its agents, continue to implement the provisions of the Value added Tax Act to the detriment of the Lagos State Government”
2. Federal Inland Revenue Service (FIRS) is the Federal Government Organ and Agent charged and authorized to assess, collect, administer and manage the Value Added Tax. Consequently, The Federal Inland Revenue Service is a necessary party in the matter as all complaints of the Plaintiff relate to acts of The Federal Inland Revenue Service.
3. Where an agency of The Federal Republic of Nigeria is or ought to be a party in a matter, the original jurisdiction of the Supreme Court cannot be invoked.

GROUND 2
The entire suit constitutes an abuse of court process and should be struck out.

PARTICULARS 
1. In Paragraph 15 of the Affidavit in support of the Plaintiff’s Amended Originating Summons, the Plaintiff admits that Plaintiff has been involved and is currently engaged in the following pending suits and/or appeals:
(a) CA/L/23/04 M.A.N Vs A.G. Lagos State
(b) CA/L/428/05 A.G. Lagos State Vs Eko Hotels
(c) CA/L/727M/06 A.G. Lagos State Vs M.A.N
(d) ID/451/2002 (now CA/L/430/06)
(e) ID/454/2002
(f) ID/450/2002 (now CA/L/431/06)
(g) ID/453/2002
2. The Suits stated above are grounded on the same subject matters as this present suit and the Plaintiff ought to pursue

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these suits to their logical conclusion.
3. The Plaintiff in paragraph 17 of the affidavit in support of the Amended Originating Summons admits that Suits No.ID/450/02 and ID/451/02 are currently on appeal.
4. The Plaintiff’s appeal in Appeal No.CA/L/428/05 which touches on the same subject matter in this suit was dismissed and the Plaintiff has not lodged any appeal against the said judgment.
5. The Court of Appeal in its judgment in Appeal No.CA/L/428/05 declared the Plaintiff’s Sale Tax Law as null and void on all matters on which The National Assembly has legislated.
6. That The Court of Appeal judgment in Appeal No.CA/L/428/05 was delivered on 13th July, 2007 and The Plaintiff admits this fact but filed this fresh matter before the Supreme Court in 2008.
7. The cause of action (if any) as disclosed in this suit can be properly determined in the above pending suits and/or appeals.”

Some of the defendants aligned themselves with the 1st defendant’s preliminary objection and adopted the 1st defendants arguments in respect thereof. The parties filed and exchanged briefs of argument in compliance with the rules of this court in respect of the main claim and in respect of the preliminary objections (where applicable). At the hearing of the suit on 4/2/2014, learned Senior Counsel, J. B. DAUDU, SAN, drew the court’s attention to the preliminary objection filed on behalf of the 1st defendant. Thereafter the various parties adopted and relied on their respective briefs of argument and urged their respective positions on the court. The preliminary objections were taken along with the originating summons. The courts have always been enjoined to consider and resolve a preliminary objection, where raised, before delving into the merits or otherwise of the substantive case. This is because a preliminary objection to the hearing of the substantive matter, if successful, would determine the case in limine. Where the objection challenges the jurisdiction of the court and it is upheld, that would be the end of the matter. Jurisdiction has been held to be the life blood of any adjudication, without which, the court lacks the competence to adjudicate in the cause or matter before it. See: A.G. Lagos State Vs Dosunmu (1989) 3 NWLR (Pt.111) 552 @ 566; Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Ebodagbe Vs Okoye (2004) 18 NWLR (Pt.905) 472; Dapianlong Vs Dariye (2007) 8 NWLR (Pt.1036) 332.

It is therefore prudent, in the instant case to consider and resolve the preliminary objection first. The 1st defendant distilled two issues for determination. They are:

1. Whether the Supreme Court’s original jurisdiction can be invoked where the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.

The plaintiff also distilled two issues for the determination of the objection:

1. Whether there is a dispute between the Lagos State Government and the Federation in respect of the Constitutionality of the Value Added Tax Act as it applies to Lagos State (as well as other States of the Federation) over which the Supreme Court may exercise adjudicative Original Jurisdiction?
2. Does the present action instituted by the Plaintiff amount to an abuse of the process of this Honourable Court?

With regard to the first issue, learned Senior counsel for the 1st defendant, J. B. DAUDU, SAN, referred to Section 232 (1) of the 1999 Constitution, which confers original jurisdiction on the Supreme Court. He argued that for the original jurisdiction to be successfully invoked there must be disclosed and exist a dispute between the Federal Government and the State. He referred to several decisions of this court to that effect: A.G. Bendel State Vs A.G. Federation (1982) 3 NCR 1; (1981) 10 SC 2; A.G. Federation Vs A.G. Abia State (2001) 11 NWLR (Pt.725) 689 @ 728; A.G. Kano State Vs A.G. Federation (2007) 3 SC (Pt.1) 59 @ 85; A.G. Federation Vs A.G. Imo State (1993) 4 NCLR 178. Referring to paragraphs 7, 8, 13, 15, and 19 of the originating summons, he contended that the essence of the plaintiff’s complaint is that the collection of tax on the supply of goods and services by the Federal Inland Revenue Service (FIRS) in Lagos State has made it difficult and almost impossible for the plaintiff to collect tax on the supply of goods and services in the State. He submitted that the acts complained of by the plaintiff are acts of a Federal Government Agency and therefore the proper court to entertain the dispute is the Federal High Court. He referred to a recent decision of this court in: A.G. Benue State Vs A.G. Federation (unreported) in SC.179/2006 delivered on 25/10/2007, which, in his view, has laid the matter to rest. He submitted in conclusion that the position stated in A.G. Benue State Vs A.G. Federation (supra) represents the present state of the law on the subject and urged the court to resolve the preliminary objection in the 1st defendant’s favour.

In reply to the above submissions, learned Senior counsel for the plaintiff, E. O. SOFUNDE, SAN, referred to the long-settled position of the law that it is the plaintiff’s claim that determines the jurisdiction of the court. He referred to paragraphs 7, 8, 12, 14 and 15 of the affidavit in support of the originating summons. Relying on the case of A.G, Kano State Vs A.G. Federation (2007) 6 NWLR (Pt.1029) 164 CD 182 E – H, he enumerated the essential requirements for the invocation of the original jurisdiction of the Supreme Court and submitted that the issues raised in the originating summons amount to a dispute as envisaged by Section 232 (1) of the 1999 Constitution. He referred to A.G. Bendel State Vs A.G. Federation (1981) 10 SC 1 @ 32 – 33 & 47, cited in: A.G. Federation Vs A.G. Abia State (2001) 11 NWLR (Pt.725) 689 @ 728 – 729 H – A; A.G. Kano State Vs A.G. Federation (supra) at 192 – 193 H – B; 197 – 198 F – F; A.G. Anambra State Vs A.G. Federation (2007) 12 NWLR (Pt.1047) 4 @ 82 A – D.

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Learned Senior Counsel argued that, contrary to the submission of learned Senior Counsel for the 1st defendant, the gravamen of the plaintiff’s claim is the unconstitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the said Act, which tax is being collected by an agency of the Federal Government. He referred to the case of: Attorney-General of Lagos State Vs Attorney-General of the Federation & Ors (2003) 12 NWLR (Pt.833) 1, and submitted that this court assumed jurisdiction in the case because the crux of the complaint was the capacity of the Federal Government to legislate with regard to the enactments in question and that acts done under these enactments would derive validity or otherwise from the competence of the National Assembly to make those laws. He distinguished the case of A.G. Benue State Vs A.G, Federation (supra) relied upon by learned counsel for the 1st defendant from the facts of this case on the ground that in that case the complaints of the plaintiff therein were against the acts of the Economic and Financial Crimes Commission and not those of the Federal Government of Nigeria and further that there was no challenge to the law making capacity of the National Assembly. He submitted that in this case the plaintiff complains of the constitutionality of the Value Added Tax Act pursuant to which the Federal Government through its agencies is collecting taxes that should rightly be collected by the plaintiff through its own agencies.

It is contended on behalf of the plaintiff that the FIRS is a mere collecting agent of the Government of the Federation for the purposes of giving effect to the Value Added Tax Act and that any acts of the Board are acts of its principal, the Government of the Federal Republic of Nigeria. He submitted that in the circumstances, a claim has properly been brought against the Government of the Federation and the proper person to sue is the Attorney General of the Federation. He referred to: A-G Kano Vs A-G Federation (supra) at 192 B.

It has been emphasized in many decisions of this court that in interpreting provisions of the Constitution, a wide and liberal approach should be adopted unless there is express provision to the contrary or there is something in the rest of the Constitution to indicate that the narrower interpretation is necessary to carry out and give effect to the intention of the lawmakers. This court has also held that a Section must be read against the background of other Sections to achieve a harmonious whole. See: Elelu-Habeeb Vs A.G. Federation (2012) 13 NWLR (Pt.1318) 423 @ 520 – 521 H – E; A.G. Lagos State Vs A.G. Federation (2003) 12 NWLR (833) 1 @ 117 G – H & 159 D- E: Nafiu Rabiu Vs The State (1980) 8 – 11 SC (Reprint) 130; Tukur Vs Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517; Abdulkarim v. Incar (Nig.) Ltd. (1992) 7 NWLR (Pt.251) 1.

A fundamental principle of interpretation is that where the words used are clear and unambiguous, they should be given their natural and ordinary meaning. See: Ibrahim Vs Barde (1996) 9 NWLR (Pt.474) 513 at 577 BC; Ahmed Vs Kassim (1958) SCNLR 58; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 at 402 F-H.

Sections 4 (8), 6 (6) (a) & (b) and 232 (1) of the 1999 Constitution (as amended), which are germane to the resolution of the first issue provide as follows:

“4 (8): Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law…
6 (6):The judicial powers vested by in accordance with the forgoing provisions of this section –
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person
.
232 (1): The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

The above-mentioned Sections are in pari materia with the provisions of Sections 4 (8), 6 (6) and 212 (1) of the 1979 Constitution, which were considered in the case of A.G. Bendel State Vs A.G. Federation (1981) 10 SC (Reprint) 1. Therein this court held as follows at page 32 lines 20 – 26:

“It is clear from the provisions of Section 212 (1) of our Constitution that a dispute within the ambit of the section must be a justiciable one. The section clearly qualifies the character of the dispute as that which involves any question, whether of law or fact, on which the existence or extent of a legal right depends. To invoke the original jurisdiction of the court there must be a dispute as so qualified between the Federation and a State or between States.

(Emphasis supplied)

In order to determine the jurisdiction of the court to entertain a cause or matter, the court considers only the writ of summons and statement of claim or the originating summons and supporting affidavit as the case may be. In other words, it is the originating processes filed by the plaintiff that determine whether or not the court has jurisdiction to entertain the matter. See: Adeyemi vs Opeyori (1976) 9 – 10 SC 31; A.G. Anambra State vs A.G. Federation (1993) 6 NWLR (Pt.302) 692; A.G. Kano State Vs A.G. Federation (supra). A careful examination of the

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questions raised in the amended originating summons and the reliefs sought, reveal a dispute in respect of the legislative competence of the National Assembly to enact certain sections of the Value Added Tax Act and the right or power of the Federal Government by itself or any of its agencies to give effect to the said provisions. However, when one examines the averment in support of the amended originating summons, it is clear that the plaintiff’s grouse is with the legislative competence of the National Assembly and the agency of the Federal Government saddled with the collection of taxes, which is the Federal Inland Revenue Service (FIRS). The issue is whether the dispute so disclosed is between the plaintiff and the Federal Republic of Nigeria to warrant the invocation of the original jurisdiction of this court. In A.G. Kano State Vs A.G. Federation (supra) referred to by both the plaintiff and the 1st defendant, this court referred to the dictum of Tobi, JSC in A.G. Lagos State Vs A.G. Federation (2004) 18 NWLR (Pt 904) 1 @ 125 – 126 G – A to the following effect:
“In Attorney-General of the Federation Vs Attorney General of Imo State (1983) 4 NCLR 178 it was held that before the original jurisdiction of the Supreme Court can be invoked under Section 212 of the 1979 Constitution, the following criteria must be satisfied:
“(1) There must be a justiciable dispute involving any question of law or fact
(2) The dispute must be: –
(a) between the Federation and a State in its capacity as one of the constituent units of the Federation; or
(b) between the Federation and more States than (sic) are in their capacities as members of the constituent units of the Federation; or
(c) between States in their aforesaid capacities, and the dispute must be one on which the existence or extent of a legal right in the aforesaid capacity is involved.”

Section 318 (1) of the 1999 Constitution (as amended) defines “Federation” as follows:
 ‘Federation’ means the Federal Republic of Nigeria.
In A.G. Kano State vs A.G. Federation (supra), this court per Mahmud Mohammed, JSC, relying on the definition of “Federation” within the meaning of Section 232 of the 1999 Constitution, which bears the same meaning in Section 212 of the 1979 Constitution, differentiated between Federation (or the Federal Republic of Nigeria) and the Federal Government thus:
“…..Section 212 of the 1979 Constitution under which the word “Federation” was defined is in pari materia with the provisions of Section 232 of the 1999 Constitution now under consideration. I therefore respectfully adopt the definition of the word “Federation” in Section 232 of the 1999 Constitution as bearing the same meaning as the ‘Federal Republic of Nigeria’. By this meaning … all the complaints of the plaintiff in its statement of claim in the present case must be viewed as being against the Federal Republic of Nigeria in order to bring the case within the purview of Section 232 of the Constitution. In other words, any complaint against the Government of the Federation or any person who exercises power or authority on its behalf like the Inspector General of Police as asserted by the learned senior counsel for the plaintiff in his address before this court, are completely outside the original jurisdiction of this court”
(Emphasis mine)

In paragraph 1.3.13 of the plaintiff’s reply to the preliminary objection, learned Senior Counsel stated categorically that “the gravamen of the claim of the plaintiff is the unconstitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the said Act, which tax is being collected by an agency of the Federal Government.

With due respect to the learned Senior Counsel, I am of the considered view that the above submission clearly shows that the plaintiff’s complaint is not against the Federal Republic of Nigeria but against the Federal Government and its agency charged with the collection of taxes. See also: A.G. Benue State Vs A.G. Federation & Ors.(unreported) in SC.179/2006 delivered on 25/10/2007. I am further satisfied that the plaintiff’s claim falls within the jurisdiction of the Federal High Court pursuant to Section 251 (1) (a), (b) and (q) of the 1999 Constitution (as amended), which provides:

“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters 

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) 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;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

It is instructive that Section 251 (1) above begins with the words,
“Notwithstanding anything to the contrary contained in this Constitution…” Applying the literal interpretation to the phrase, the conclusion one must draw is that the exclusive jurisdiction conferred on the Federal High Court in respect of matters specifically provided for in the Section is to the exclusion of the original jurisdiction of the Supreme Court generally provided for in Section 232 (1) thereof.

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Having regard to the claims and reliefs sought by the plaintiff in this suit, I am of the considered view that it is the Federal High Court, to the exclusion of any other court that has jurisdiction to entertain the plaintiff’s claim. See: A.G. Kano State vs A.G. Federation (supra) at 188 G where His Lordship, Mahmud Mohammed, JSC opined that:

“Having regard to the plain provisions of the Constitution, I am of the strong view that to accede to the arguments of the learned senior counsel for the plaintiff to entertain the present action would result in reducing the status and function of this court to that of the Federal High Court; quite contrary to the spirit and intention of the Constitution, which assigned the limit of powers and jurisdiction to be exercised by each court created by it.”

In the circumstances, I agree entirely with my learned brother, M. D. MUHAMMAD, JSC in the lead ruling, just delivered that this court must decline to exercise its original jurisdiction in this suit.

Although the first ground of objection has been resolved against the appellant, I deem it necessary to comment very briefly on the second issue raised in the preliminary objection, as to whether the suit is an abuse of the court’s process, having regard to other proceedings, pending or concluded between the plaintiff and other parties in respect of the subject matter of this suit. Abuse of process may take many forms. One of the circumstances in which a suit is considered to be an abuse of process is where a party institutes a multiplicity of actions on the same subject matter, against the same opponent on the same issues. Another circumstance is abuse of legal procedure or improper use of legal process. See: Okorodudu Vs Okoromadu (1977) 3 SC 21; Amaefule vs The state (1988) 2 NWLR (Pt.75) 156 @ 177 C – F: Saraki Vs Kotoye (1992) 9 NWLR (Pt.264) 156; Ogoejeofor Vs Ogoejeofor (2006) 3 NWLR (Pt.966) 205. One glaring fact in the instant suit, as averred in paragraph 15 of the plaintiff’s supporting affidavit is that the plaintiff is experiencing “tremendous difficulty in enforcing its right to collect tax on the supply of goods and services within the territory of Lagos State as many taxable persons have resisted or are resisting such attempts in the belief that the Federal Government of Nigeria is the body authorized to collect such tax”, which situation has resulted in litigation before several High Courts and the Court of Appeal. Of particular note is Appeal No.CA/L/428/2005: A.G. Lagos State Vs (1) Eko Hotels Ltd. & (2) Federal Board of Inland Revenue, wherein the Court of AppeaL, Lagos Division, on 13/7/2007, dismissed the present plaintiff’s appeal against the judgment of the Federal High Court, Lagos delivered on 20/12/2004, which held that the provisions of the Value Added Tax (VAT) Decree No. 102 of 1993 now Value Added Tax (VAT) Act Cap. VI Laws of the Federation of Nigeria, 2004 prevail over the Sales Tax Law Cap. 175, Laws of Lagos State 1995 and Sales Tax (Amendment) Order 2000- The essence of the dispute is that having regard to the provisions of the VAT Act 2004 and the Sales Tax Law of Lagos State, who as between the Lagos State Government and the Federal Board of Inland Revenue, an agency of the Federal Government, is entitled to the tax being collected by the Lagos State Government in respect of sales and services rendered within the State. The subject matter of the concluded appeal and the instant case is substantially similar and an appeal in respect of the issue contested before the Court of Appeal would have the same effect as a resolution of the issues in this case. See: Minister for Works & Housing Vs Tomas (Nig.) Ltd. (2002) 2 NWLR (Pt.752) 740 @ 780 E – H & 785 E – H; Ali vs. Albishir (2008) 3 NWLR (Pt.1073) 94 @ 142 – 143 E – 144B. It is therefore somewhat curious that rather than appeal against the judgment of the Court of Appeal delivered on 13/17/2007, or await the outcome of the pending suits/appeals, the plaintiff chose to file a fresh suit in an attempt to invoke the original jurisdiction of this court. If dissatisfied with any of the decisions, the proper course of action is to pursue the appeals to their logical conclusion. In the circumstances, I am of the considered view that the present suit amounts to an abuse of process.

For these and the more comprehensive reasons stated in the lead ruling of my learned brother, M. D. Muhammad, JSC, with which I concur, I also strike out the suit for want of jurisdiction. The parties shall bear their respective costs in the suit.

JOHN INYANG OKORO, J.S.C.: By an amended Originating Summons filed on 12th August, 2009, the Plaintiff made “claims that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other legislative body, to enact laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria, or any other agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax and that the revenue of the Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No. 102 of 1993, now Value Added Tax Act Cap. VI Laws of the Federal Republic of Nigeria, 2004, for the determination of the following questions:-

1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing Law within the meaning of Section 315 of the said Constitution being a Federal Legislation which is deemed to be an Act of the National Assembly?
2. If the answer is in the affirmative, whether the combination of the provisions of Sections 2, 4, 6 and 7 of the said Value Added Tax Act which empower a federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other states of the Federation?
3. If the answer to question 2 is in the affirmative, whether Section 2, 3, 4, 5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.”

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The Plaintiff then made the following claims against the 1st Defendant only:-

“1. A declaration that the Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other states of the Federation) outside the legislative competence of the National Assembly and is therefore unconstitutional, null and void and of no effect whatsoever.
2. A perpetual injunction restraining the Federal Government of Nigeria by itself, its servants or any of its agencies from continuing to give effect to the provisions of the said Value Added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.” 

In support of the Originating Summons is a 19 paragraphs affidavit deposed to by Ade Ipaye, Legal Practitioner and Special Adviser to the Governor of Lagos State on Revenue and Tax Matters. Annexed to the affidavit are ten exhibits marked A – J. The Plaintiff also filed its brief of argument in respect of the said Originating Summons. The 1st Respondent and other Respondents also filed their respective briefs. However, at the hearing of the Originating Summons on 4/2/14, the 1st Respondent drew attention to its Notice of Preliminary Objection to the hearing of the case. The said notice was filed on 3rd February, 2010. Accompanying the Notice of Preliminary Objection is a 7 paragraph affidavit and a written brief of argument in respect thereof.

On 19th April, 2010, the Plaintiff filed a response to the argument of the 1st Defendant’s Preliminary Objection. In keeping with the practice in this court, I intend to consider the issues raised in the preliminary objection before delving into the substantive matter placed before this court.

In the Notice of Preliminary objection which is brought pursuant to Order 2, Rule 29 of the Supreme Court Rules, 2002, the 1st Defendant is praying for the following relief:

“AN ORDER of this Honourable Court striking out and/or dismissing this suit on the grounds set in the Schedule hereunder.” 

The Schedule alluded to above by the 1st Defendant has two grounds in support of the preliminary objection.
The two grounds are as follows:-

GROUND 1

The Plaintiff’s cause of action relates to acts of a Federal organ and cannot form the basis of invoking this Honourable Court’s Original Jurisdiction to entertain this suit.

PARTICULARS

1. In paragraph 8 of the Affidavit in support of the Amended Originating Summons, the Plaintiff admits as follows:
“An organ of the Federal Government of Nigeria was authorized to assess, collect, administer and manage the tax.”

In paragraph 13 as follows:

“The Federal Government continues, through its agencies, to Administer the Value Added Tax and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of the other states and distribute such tax in accordance with the fee sharing formula.”

And in paragraph 19 as follows:

“Unless restrained by this Honourable Court, I verily believe that the Federal Government will, through its agents, continue to implement the provisions of the Value Added Tax Act to the detriment of the Lagos State Government.”

2. The Federal Inland Revenue Service (FIRS) is the Federal Government Organ and Agent charged and authorized to assess, administer and manage the Value Added Tax. Consequently, the Federal Inland Revenue Service is a necessary party in the matter as all complaints of the Plaintiff relate to acts of the Federal Inland Revenue Service.
3. Where an agency of the Federal Republic of Nigeria is or ought to be a party in a matter, the original jurisdiction of the Supreme Court cannot be invoked.

GROUND 2

The entire suit constitutes an abuse of court process and should be struck out.

PARTICULARS

1. In paragraph 15 of the affidavit in support of the Plaintiff’s Amended Originating Summons, the Plaintiff admits that Plaintiff has been involved and is currently engaged in the following pending suits and/or appeals:
a) CA/L/23/04 M.A.N. V. Attorney General Lagos State

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b) CA/L/428/05 Attorney General Lagos State V. Eko Hotels
c) CA/L/727M/06 Attorney General Lagos State V. M.A.N.
d) ID/451/2002 (now CA/L/430/06)
e) ID/454/2002
f) ID/450/2002 (now CA/L/431/06)
g) ID/453/2002.
2. The suits stated above are grounded on the same subject matter as this present suit and the Plaintiff ought to pursue these suits to their logical conclusion.
3. The Plaintiff in Paragraph 17 of the affidavit in support of the Amended Originating Summons admits that Suits Nos. ID/450/02 and ID/451/02 are currently on appeal.
4. The Plaintiff’s Appeal No. CA/L/428/05 which touches on the same subject matter in this suit was dismissed and the Plaintiff has not lodged any appeal against the said judgment.
5. The Court of Appeal in its judgment in Appeal No. CA/L/428/05 declared the Plaintiff’s Sales Tax as null and void on all matters on which the National Assembly has legislated.
6. That the Court of Appeal judgment in Appeal No. CA/L/428/05 was delivered on 13th July, 2007 and the Plaintiff admits this fact but filed this fresh matter before the Supreme Court in 2008.
7. The cause of action (if any) as disclosed in this suit can be properly determined in the above pending suits and/or appeals.”

Both the Defendant/Objector and the Plaintiff filed and exchanged their written arguments in respect of the preliminary objection. At the hearing of this suit on 4th February, 2014, counsel for both parties adopted the said briefs alluded to above. In arguing the preliminary objection, the 1st Defendant formulated two issues upon which arguments are anchored. The issues are as follows:
“1. Whether the Supreme Court’s Original jurisdiction can be invoked where the acts and allegations constituting the main dispute are acts of an agency of the Federal Government.
2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

The plaintiff also distilled two issues for determination.
They are couched thus:

“1. Whether there is a dispute between the Lagos State Government and the Federation in respect of the constitutionality of the Value Added Tax Act as it applies to Lagos State (as well as other states of the Federation) over which the Supreme Court may exercise exclusive jurisdiction.
2. Does the present action instituted by the plaintiff amount to an abuse of process of this Honourable Court?”

A summary of the arguments in respect of the preliminary objection would suffice. In respect of the first issue, the learned Senior Counsel for the 1st Defendant submitted that for the Supreme Court’s Original Jurisdiction to be successfully invoked, there must be disclosed a dispute between the Federal Government and the state or the State interse; relying on the cases of ATTORNEY GENERAL BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1982) 3 NCLR I, ATTORNEY GENERAL OF THE FEDERATION V. ATTORNEY GENERAL OF ABIA STATE (2001) 11 NWLR (PT. 625) 689, ATTORNEY GENERAL OF KANO STATE V. ATTORNEY GENERAL OF THE FEDERATION (2007) 3 SC 59, ATTORNEY GENERAL OF THE FEDERATION V. ATTORNEY GENERAL OF IMO STATE (1993) 4 NCLR 178.

Referring to paragraphs 7, 8, 13, 15, and 19 of the Plaintiff’s affidavit in support of the amended originating summons, the Learned Senior Counsel submitted that it is beyond any iota of doubt that the essence of the Plaintiff’s complaint is that the collection of Tax on supply of goods and services by Federal Inland Revenue Service in Lagos State, has made it difficult and almost impossible for the Plaintiff to collect tax on the supply of goods and services in Lagos State. He contended that where, as in this case, the acts and allegations complained about by the Plaintiff are acts of a Federal Government Agency, the original jurisdiction of this court cannot be invoked pursuant to Section 232 (1) of the 1999 Constitution (as amended). The Learned Senior Counsel also cited the case of ATTORNEY GENERAL OF BENUE STATE V. ATTORNEY GENERAL OF THE FEDERATION & 35 ORS (UNREPORTED) SUIT NO. SC. 179/2006 delivered on 25th October, 2007.

On the second issue, which relates to abuse of court process, he submitted that it is an abuse of court process for a party to institute multiplicity of actions in various courts over the same issue between the same parties, relying on the cases of ATTORNEY GENERAL OF ONDO STATE V. ATTORNEY GENERAL OF EKITI STATE (2001) 7 NWLR (PT.743) 706, CENTRAL BANK OF NIGERIA V. AHMED (2001) 11 NWLR (PT.724) 369, OGOEJOFO V. OGOEJOFO (2006) 22 WRN 183. According to Learned Senior Counsel, the terms “issue” and “parties” include “any matter that could have been raised and canvassed in the first suit” and “agents and privies” respectively. The case of NIMB V. UBN (2004) 52 WRN 121 at 144 was cited in support.

Referring to paragraph 15 of the Plaintiff’s affidavit in support of the originating summons, he submitted that the Plaintiff and the 1st Defendant were the principal parties in Suit No.ID/105/05 listed in sub paragraph (a) in which judgment was delivered in the plaintiff’s favour and the pending appeal of the nominal parties in the matter is listed in sub paragraph (b) as CA/L/23/04. Also, that the 1st Defendant’s pending appeal against the judgment is listed as (c) in Appeal No. CA/L/727m/06.

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Also referring to Exhibit HAGF 1, a judgment of the Court of Appeal in a related matter, Learned Senior Counsel submitted that the Plaintiff’s only legal right was to appeal against the said judgment. That the plaintiff has no alternative legal right to institute a fresh suit under the original jurisdiction of this court. He urged this court to uphold the preliminary objection and strike out or dismiss this suit.

In response, it was submitted on behalf of the plaintiff that contrary to the contention of the 1st Defendant that the acts complained of are acts of a Federal Government Agency, the gravamen of the claim of the plaintiff is the unconstitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the said Act, which tax is being collected by an agency of the Federal Government. It was further argued that the plaintiff has no dispute with the Federal Inland Revenue Service, which the 1st Defendant contends under particular I of Ground I of the objection…He referred to the case of ATTORNEY GENERAL OF LAGOS STATE V. ATTORNEY GENERAL OF THE FEDERATION & ORS (2003) 12 NWLR (PT.833) 1. It was his further contention that in ATTORNEY GENERAL OF BENUE STATE V. ATTORNEY GENERAL OF THE FEDERATION (supra) the court found that there was no dispute between the Plaintiff and the Government of the Federation because the complaints of the Plaintiff therein were against the acts of the Economic and Financial Crimes Commission and not those of the Federal Government of Nigeria.

Learned Senior Counsel further submitted that the Federal Inland Revenue Service is merely a collecting agent of the Government of the Federation for the purpose of giving effect to the Value Added Tax Act. He submitted that a claim has properly been brought against the Government of the Federation and that the proper person to sue is the Attorney General of the Federation, citing the case of ATTORNEY GENERAL OF KANO STATE V. ATTORNEY GENERAL OF THE FEDERATION (supra) at p.192 paragraph B. In conclusion on this issue, he submitted that the fact that a state government sues the federal government or any other state government is not conclusive of the fact that the original jurisdiction of the Supreme Court has been properly invoked. Also, that it does not matter how the claims are couched. What matters, according to him, is who the real disputants are which will be ascertained from the crux of the complaint. He cited the case of ATTORNEY GENERAL ONDO STATE V. ATTORNEY GENERAL OF THE FEDERATION & ORS (supra). He urged this court to hold that the jurisdiction of this court has been properly invoked.

On the issue of abuse of court process, Learned Senior Counsel for the Plaintiff submitted that since the 1st Defendant was not a party in the suits mentioned in the affidavits in support of the originating summons, the parties in this suit and the ones mentioned in the supporting affidavits are not the same. That the requirement of sameness of parties having not been met, it cannot be rightly contended that the present action is an abuse of court process. He referred to the case of SARAKI V. KOTOYE (1992) 9 NWLR (Pt.264) 156 at 188.
Furthermore, that it cannot be seriously contended that the Plaintiff’s action was taken other than to resolve an important constitutional dispute which exists between the Federation and the Lagos State of Nigeria and which cannot be resolved in all the other courts in which the actions or appeals relied upon as making this action an abuse of process were filed.

The Plaintiff also made response to the 14th, 24th, 30th, and 35th Defendants’ arguments on the said preliminary objection which are in tune with those already made. He then urged this court to hold that the present suit does not constitute an abuse of court process.

By these arguments, a fundamental question arises and that is whether the original jurisdiction of this court has been properly activated. By Section 232 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides:

“232(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

Thus in ATTORNEY GENERAL OF KANO STATE V. ATTORNEY GENERAL OF THE FEDERATION (2007) 3 SC 59, this court held that in order to be able to invoke or activate the original jurisdiction of this court, pursuant to Section 232 (1) of the 1999 Constitution, the following conditions must be present, that is to say:-

1. There must be a justifiable dispute involving any question of law or fact.
2. The dispute must be between the Federation and a State in its capacity as one of the constituent units of the Federation, or
3. Between the Federation and more states that are in their capacities as members of the constituent unit of the Federation or states inter se.
4. The dispute must be one on which the existence or extent of a legal right in the said capacity is involved. 

There is no doubt from the originating summons that there is a dispute between the Lagos State Government and the Federal Government of Nigeria in relation as to who has the power to legislate, assess, collect and manage tax with regard to the supply of goods and services within the Lagos State of Nigeria vis-‘a-vis the Value Added Tax Act enacted by the National Assembly. That is the gravamen of the dispute as can be garnered from the Originating Summons. It is trite that it is the claim of the Plaintiff which determines the jurisdiction of the court, and where pleadings have been filed, the issue of the court’s jurisdiction is determined from the averments in the Plaintiff’s Statement of claim. Where this is not the case, one has to look at the claim as endorsed on the Writ of Summons. See ALADEGBEMI V. FASANMADE (1988) 3 NWLR (pt.81)

…………………….AB…………………….

129, IKINE & ORS V. EDJERODE & ORS (2001) 12 SC (Pt.11) 94, ADEYEMI V. OPEYORI (1976) 9 – 10 SC 31, NKUMA V. ODILI & ORS (2006) 6 NWLR (Pt.977) 587.

The questions set out for determination in the originating summons which I had earlier set out in this Ruling and the affidavit in support thereof clearly show that the dispute arising from the facts of this case are justiciable. But in which court? Looking at the 1999 Constitution of the Federal Republic of Nigeria holistically, finding an answer to this question does not appear to be a simple task. This is so because after the framers of the Constitution had made a general provision in Section 232 (1) thereof conferring original jurisdiction on this court on any dispute between the Federation and any state of the Federation, they went further in Section 251 (1) (a) and (b) of the same Constitution to confer exclusive jurisdiction on the Federal High Court on matters relating to the claims of the Plaintiff in this suit as set out above.

Now, Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:
251 (1) – Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:-
a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
b) Connected with or pertaining to the taxation of compani
es and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation.”
In view of the fact that the Constitution, after donating original jurisdiction to this court in Section 232 thereof in“any dispute” between the Federation and the States, and the states interse, it went further to donate exclusive and specific jurisdiction to the Federal High Court in the later Section 251, (1) (a) and (b) in matters relating to the Revenue of the Government of the Federation and also in matters of taxation, it thus requires some ingenuity of interpretation in order to determine whether there is any conflict between the two sections or whether they are mutually exclusive. It was the late Sir Udo Udoma, JSC, that ingenious jurist who in NAFIU RABIU V. THE STATE (1980) 8 – 11 SC 130 at 148 said.
“My Lords, it is my view that the approach of this court to the construction of the Constitution should be and so it has been, one of liberalism, probably a variation of the theme of the general maxim ut res magis valeat quam perea. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accordance and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
In my attempt to heed the admonition of His Lordship quoted above, I wish to ask one pertinent question. The question is: Were the framers of the Constitution oblivious of the earlier provision in Section 232 (1) thereof when they proceeded to provide in Section 251 (1) (a) and (b) an exclusive jurisdiction to the Federal High Court in named and specific matters? I do not think so. The reason can be found in the opening words used in Section 251 of the said Constitution. It states:-
“Notwithstanding anything to the contrary contained in this Constitution…”
By this opening statement, I hold the view that Section 232 (1) was still fresh in the mind of the framers of the Constitution when Section 251 was drafted. And in order to tinker with the original jurisdiction on “any dispute”conferred on this court in Section 232 (1), the framers of the Constitution said:
“Notwithstanding anything to the contrary contained in this Constitution” including Section 232 (1), the Federal High Court shall have and exercise jurisdiction, to the exclusion of any other court in matters to which sub sections (a) and (b) relate. This court in NDIC V. OKEM ENTERPRISES LTD (2004) 10 NWLR (Pt.880) 107 at 182, held that when the term “notwithstanding” is used in a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said Section may fulfill itself. I need to emphasize that in interpreting the provisions of a statute or even the Constitution, the historical antecedents of such provision could be of help in order to bring out the real intendment of the law maker or framers of the Constitution. That is why I agree with Justice White in KNOWLTON V. MORE 178 U.S. 41, 20 S.ct, 747 at 768 referred to by late Nnamani, JSC in BRONIK MOTORS LTD & ANOR. V. WEMA BANK LTD (1983) ALL NLR, 272 at 301 where the Law Lord stated as follows:
“The necessities which gave birth to the constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption may properly be taken into view for the purpose of tracing to this source any particular provision of the constitution in order thereby to be enabled to correctly interprete its meaning.”
Historically, the Federal High Court metamorphosed from the Federal Revenue Court which had jurisdiction to entertain matters relating to the revenue of the Government of the Federation. It seems to me and I strongly believe so, that the Constitution intended to give exclusive jurisdiction to the Federal High Court in matters relating to the Revenue of the Government of the Federation including matters of taxation in spite of its earlier provision granting original jurisdiction to the Supreme Court “in any dispute” between the Government of the Federation and any state of the Federation and the states inter se. It follows that the Plaintiff’s claim having come squarely within the exclusive jurisdiction of the Federal High Court, this court has no original jurisdiction to entertain it.

Let me say a few words as regards issue of abuse of court process. There is no doubt that this court in a plethora of authorities frown at issue of abuse of court process whenever it occurs. Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of the judicial process by a party in improper way to the irritation and annoyance of his opponent and the efficient and effective administration of justice. See ARUBO V. AIYELEI (1993) 3 NWLR (Pt.280) 126, CENTRAL BANK OF NIGERIA V. AHMED (2001) 5 SC. (Pt.11) 140 EDJERODE V. IKINE (2001) 12 SC (Pt.11) 125. Where a party re-litigates an issue afresh after the same issue has been

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tried and decided by a court of competent jurisdiction, it is an abuse of court process.

In the instant suit, the Plaintiff has, in paragraph 15 of its affidavit in support of the amended Originating Summons listed quite a number of cases which are either pending or disposed of or on appeal which relate substantially to the subject matter now before us. I shall refer, though briefly to one of such cases. In appeal No.CA/L/428/05 (No. (e) in paragraph 15 of Plaintiff’s affidavit) delivered on 13th July, 2007, the Court of Appeal upheld the decision of the Federal High Court in issues substantially the same as the issues placed before this court to decide.

For the avoidance of doubt, part of the judgment of the Court of Appeal alluded to above which is Exhibit HAGF 1 at page 17 states:

“It is the contention of the learned counsel for the Appellant that the decision of the learned trial judge that the VAT Tax of the Federal Government prevails over the Sales Tax of the State is erroneous and does not have any constitutional support. The learned counsel cites the provision of Section 4 (2) and (3) of the Constitution 1999 in support of his submission. Counsel maintains that the sales tax is neither on the exclusive nor concurrent legislative list. It is therefore a residual matter within the jurisdiction of the state legislative houses.”

The Plaintiff herein, who was the Appellant at the Court of Appeal, has not appealed against the above summary by the learned justice of the Appeal Court. So it stands.
Therefore, the issue of the VAT Act and the Sales Tax Law will certainly resonate before this court should we decide to hear the matter. But then the matter as decided by the Court of Appeal is still subsisting. I agree with the Learned Senior Counsel for the 1st Defendant that what is available to the Plaintiff in that matter is a right of appeal.
The Plaintiff does not have an alternative legal right to institute a fresh suit under the original jurisdiction of this court in respect of the same. It amounts to an abuse of court process for the Plaintiff herein to abandon the judgment of the Court of Appeal and institute a fresh suit in this court on the same issue. Based on this also, this court lacks the jurisdiction to entertain this suit.

In view of all I have said above, I agree with my learned brother, Musa Dattijo Muhammad, JSC, in his lead judgment, that this court lacks the jurisdiction to hear the complaint of the Plaintiff in its original form. Accordingly, this suit is hereby struck out for want of jurisdiction. I also make no order as to costs.

Appearances

Ade Ipaye – Hon. Attorney General of Lagos State, Ministry of Justice with E. O. Sofunde SAN, C. Umensuyi Edosomwan SAN, R. Tarfa SAN, Prof. Y. Osinbajo SAN, Prof. T. Osipitan SAN, M. Igbokwe SAN, D. Akinosan, O. T. Akinsola, L. O. Akangbe, L. Akinsola, J. Jacob, Seun Awolade, Dayo G. Ashonibare, A. M. Kayode, C. Okezie (Miss), P. Tarfa, J. Okah, Y. Killa and C. V. Ofoegbu for the plaintiff. For Appellant

AND

J. B. Daudu SAN with A. Adedeji, I. C. Okonji and C. E. Ogbozor for the 1st Defendant.
Uke Kalu – Hon. Attorney General of Abia State with Val Offia, Omokue U. (C.S.S.) and Chukwu L. Ogechi (S.S.C.) for the 2nd Defendant.
Ekenyong Ntetim with Bassey Ekanem for the 4th Defendant.
P. A. Afuba – Hon. Attorney General of Anambra State with I. C. Adingwu for the 5th Defendant.
E. Y. Kurah for Bauchi State 6th Defendant.
Chief F. F. Egele – Hon. Attorney General of Bayelsa State with B. Kingdom and E. Ameh for Bayelsa State 7th Defendant.
A. Olaleru for Cross-River State 10th Defendant.
C. A. Ajuyah SAN, Hon. Attorney General of Delta State with N. W. Ogbogu, Director Department of Revenue Matters, A. O. Orohorhoro, Esq., Assistant Director, C. O. Abagwu, Esq., Chief State Council, O. P. Ekpemina, Esq., State Senior Counsel, D. C. Atigari, Esq., Senior Counsel and N. B. Emakpor, (Mrs.) State Senior Counsel, for 11th Defendant.
Dr. Ben O. Igwenyi – Hon. Attorney General of Ebonyi State with P. M. Awada (D.C.L.) for Ebonyi State, for 12th Defendant.
Nnamonso Ekanem with Iniabasi Udobong for Edo State 13th Defendant.
F. Omotosho for Ekiti State 14th Defendant.
Nduka Ikeyi with Solomon Ejim and Ifeanyi Eeanyi Ezea for Enugu State 15th Defendant.
I. M. Njaka with Sunday Olabode and Michael Dunioh for Imo State 17th Defendant.
Y. A. H. Ruba, Esq. – Hon. Attorney General of Jigawa State with M. A. Lamin (A.C.S.C.) for Jigawa State., for 18th Defendant
D. C. Enwelum for Kaduna State, 19th Defendant.
Mukhtar Sani Daneji – Solicitor General Kano State with Dalhatu Yusuf Dada D.D.P.P. for Kano State 20th Defendant.
Napoleon O. Idenala for Katsina State 21st Defendant.
Muhammad Ibrahim Pama – Director Civil Litigation Katsina State with Ahmadu Rufai Amin – Chief State Counsel Kebbi State 22nd Defendant.
Kamaldeen Ajibade – Hon. Attorney General of Kwara State with F. D. Lawal (Mrs.) S. G. Kwara, S. K. Grillo (Mrs), A. D. Civil Litigation, M. J. Orire (Mrs.) (S.S.C.) and O. S. Balogun (S.S.C.) for Kwara State 24th Defendant.
Mrs. Abimbola Akeredolu – Hon. Attorney General of Ogun State with Dehinde Dipeolu – S. C. Ogun State Ministry of Justice and Olakunle Agbebi for Ogun State 27th Defendant.
O. Oshobi with K. Daudu, O. I. Arasi and O. C. Obayuwana (Miss) for Osun State 29th Defendant.
F. B. Lotben (Mrs.) Director Civil Litigation with V. Z. Dadom (Mrs) Deputy Director/Assistant Head of Legal Drafting, Ministry of Justice, for Plateau State 31st Defendant.
Worgu Boms – Hon. Attorney General of Rivers State with Dame N. C. Iwegbu D. C. L. Rivers State for Rivers State 32nd Defendant.
M. I. Hanafi with D. T. Nwachukwu and H. H. Oloriegbe (Miss) for Yobe State 35th Defendant.
Abdul Ahmad with Salisu M. Akwati for Zamfara State 36th Defendant. For RespondentCONSTITUTIONAL LAWINTERPRETATION OF STATUTES

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