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ACCESS BANK PLC V. KWARA STATE INTERNAL REVENUE SERVICE

(2017) JELR 51520 (CA)

Court of Appeal  •  CA/IL/27/2017  •  20 Nov 2017  •  Nigeria

Coram
MOJEED ADEKUNLE OWOADE JCA (Presided) CHIDI NWAOMA UWA JCA BOLOUKUROMO M. UGO JCA (Read the Lead Judgment)

Appearances
Abdulwahab Bamidele Esq. (with him, S.B. Ibn-Mahmud Esq.) - for the Appellant. -*- H.A. Gegele Esq. Director of Civil Litigation, Kwara State (with him, Mrs O.T. Davis S.C.1., and S.T. Onimago Esq. -*- S.C.I., all of Kwara State Ministry of Justice) - for the A -*- Respondent. -*- UGO JCA: (Delivering the Lead Judgment): This appeal is B -*- against the ruling of Yusuf J. of the High Court of Kwara State -*- of 14 December 2016. By the said ruling, his Lordship upheld the preliminary objection of the respondent and struck out Suit Number KWS/279/2016 of the appellant on grounds of her failure -*- to serve pre-action notice on respondent before commencing C her said suit, as required by section 71(3) and (4) of the Kwara State Revenue Administration Law, 2015, as amended by section -*- 25 of the Kwara State Revenue Administration (Amendment) -*- Law, 2016. -*- The appellant in that suit claimed against the respondent: D -*- “1. A declaration that the defendant’s letter dated 12 October 2016 threatening to distrain the assets or property of the claimant as a means of enforcing the payment of the alleged PAYE and Withholding Tax E of N328, 423, 252.37 (Three hundred and twenty- eight million, four hundred and thirty-two thousand, two hundred and fifty-two naira, thirty-seven Kobo) -*- for 2008-2015 against the claimant is illegal, ultra vires, unconstitutional and a gross abuse of power F -*- by the defendant. -*- A declaration that the defendant’s demand as contained in the defendant’s letter dated 12 October 2016 for the purported N328,423,252.37 (Three G -*- Hundred and twenty-eight million four hundred and -*- twenty-three thousand, two hundred and fifty-two naira, thirty-seven kobo) Pay As You Earn (PAYE) and Withholding Taxes for 2008 2015 against the -*- claimant premature, erratic, oppressive, arbitrary, H -*- baseless and contrary to law. -*- An Order of the court setting aside the defendant’s demand for N328,423,252.37 (Three hundred and twenty eight million, four hundred and twenty-three thousand, two hundred and fifty-two naira, thirty- seven kobo) as alleged Pay As You Earn (PAYE) and Withholding tax for 2008-2015 from the claimant for being erratic, oppressive arbitrary, probative, -*- baseless and contrary to law. -*- Perpetual injunction restraining the defendant through its agent servants, officers or other persons howsoever called acting for the defendant from distraining the bonds, assets, equipment, branch office or property of the claimant of whatsoever description as a means of enforcing the payment of the alleged -*- N328,423,252.37 (Three hundred and twenty eight -*- million, four hundred and twenty-three thousand, two -*- hundred and fifty-two naira, thirty-seven kobo) Pay As You Earn (PAYE) and Withholding Taxes for 2008-2015.” -*- The difference between the parties, going by the averments in the appellant’s statement of claim in the trial court, stemmed from respondent’s demand of Withholding and Pay As You Earn (PAYE) taxes of N328,423, 252.37 (Three hundred and twenty eight million, four hundred and twenty-three thousand, two hundred and fifty-two naira, thirty-seven kobo) from the -*- appellant, which, according to respondent, represented the appellant’s tax liability from 2008 to 2015. The first notification of the said assessment by respondent to appellant, according to -*- the statement of claim of the appellant, was in January 2015. Appellant, through their tax consultants, immediately objected to the assessment and sought its vacation. A meeting was called -*- on the issue by the respondent but the appellant called for postponement. In the interim, further correspondences were -*- exchanged between the parties, including one from the respondent -*- further notifying the appellant of a fresh assessment of N25.2 million for the year 2015, which according to the respondent -*- brought the new tax liability of the appellant to N328,423, 252.37 A (Three hundred and twenty eight million, four hundred and twenty-three thousand, two hundred and fifty-two naira, thirty- seven kobo). That seems to have happened between March and -*- May 2016 going by the appellant’s averments in her statement B -*- of claim. Appellant yet again wrote to the respondent on 20 and -*- 29 September 2016, objecting to the assessment and asking for its vacation. She said she was awaiting respondent’s response when she rather received a letter dated 12 October 2016 from -*- the respondent threatening to distrain her properties within three C days of the receipt of that letter if the tax was not paid. That prompted appellant to file her action, the objection to which culminated in the ruling the subject of this appeal. -*- Appellant originally filed five grounds of appeal against what seems to me the very narrow issue of whether or not she D -*- ought to have first served a pre-action notice on respondent before commencing her suit. Apparently, dissatisfied with even those five grounds, she obtained leave of this court and amended her grounds by increasing them to nine (9) grounds. She filed E her amended notice of appeal on 18 May 2017. -*- From her nine grounds of appeal two issues were couched -*- Whether there was any need at all for the appellant -*- to issue a pre-action notice for the commencement F -*- of its suit at the lower court against the respondent which arose out of the respondent’s notice of intention to take a distrain action against the appellant pursuant -*- to the provisions of Personal Income Tax Act, 2004 G -*- (as amended). -*- Whether in the face of the facts disclosed in the appellant’s suit before the lower court which were never contested by the respondent, the appellant’s -*- suit does not fall within the exceptional circumstances H -*- obviating the need to issue a pre-action notice for the commencement of the kind of the appellant’s -*- suit at the lower court against the respondent. -*- The respondent on its part first objected to grounds 6 and 8 of the appellant’s grounds of appeal. It argued that the complaint of appellant in those grounds relate to mere side remarks (obiter -*- dictum) of the trial judge and not the main reason for his ruling -*- (ratio decidendi) and so ought not to and cannot form grounds -*- of appeal. Assuming we do not agree with its objection, it went on to formulate the following single issue for determination: -*- Whether having regards to the provisions of section C 71(3) of the Kwara State Revenue Administration Law 2015(as amended), the trial court was right to -*- have upheld the preliminary objection raised by the respondent and to have declined jurisdiction to hear -*- the case of the appellant. -*- Arguing her issue 1, the appellant through her counsel, -*- Abdulwahab Bamidele Esq. referred us to the unchallenged averment of the appellant in her statement of claim to the effect that the action arose out of the respondent’s threat to distrain her -*- property and assets within three days of service of its 12 October 2016 if its disputed tax assessment of appellant was not settled. Counsel submitted that in a preliminary objection challenging competency of an action, the facts as put forward by the claimant in his/her statement of claim are deemed admitted, just as it is also settled that it is the claim of the claimant that determines -*- whether or not a court lacks jurisdiction. Counsel argued that since the dispute the appellant submitted for adjudication by the lower court arose out of respondent’s threat to resort to -*- distrain action pursuant to the provisions of the Personal Income Tax Act, 2004, a Federal Legislation, the trial judge’s reliance on the Kwara State Revenue Administration Law, 2015 (as -*- amended) and its section 71(3) pre-action notice requirement was improper and wrong when section 65 of the Personal Income -*- Tax Act, 2004 which he said was applicable does not require -*- service of pre-action notice. Counsel argued that Personal Income Tax Act, 2004 having covered the field, a State Law on -*- the same subject which is inconsistent with the Federal Law A becomes invalid and is of no effect. For the application of covering the field, counsel referred us to the cases of Osun State independent Electoral Commisssion & Anor. v. Action -*- Congress (2010) 19 NWLR (Pt. 1226) 273, (2011) All FWLR B -*- (Pt. 567) 622; Attorney-General, Abia State v. Attorney-General, -*- Federation (2002) FWLR (Pt. 101) 1419, (2002) 6 NWLR (Pt. -*- 763) 264, (2002) 17 WRN 1 at 99; Attorney-General, Ogun -*- State v. Attorney-General, Federation (1982) 3 NCLR 166 at -*- 204, (1982) 1 - 2 SC 13; I.N.E.C. v. Musa (2003) FWLR (Pt. C -*- 145) 729, (2003) 3 NWLR (Pt. 806) 72. -*- On issue 2, Mr. Bamidele’s argument was that assuming, but without conceding, that the Kwara State Revenue -*- Administration Law, 2015 (as amended) was applicable, the case of the appellant on the uncontested facts she put forward D -*- regarding the threat of the respondent to distrain her premises and assets within three days of the service of its letter of 12 October 2016, disclosed exceptional circumstances obviating the need for service of pre-action notice as the shortness of the E time does not allow for the service of a 30-day notice. Citing the decisions of this court in Attorney-General, Anambra State v. -*- Eboh (1992) 1 NWLR (Pt. 218) 491 and International Tobacco Company Plc. v. NAFDAC (2007) All FWLR (Pt. 382) 1981 at -*- 2003 -2004, (2007) 10 NWLR (Pt. 1043) 613 counsel argued F -*- that a person who smells danger does not need to wait until the noose is tied around his neck for execution before he protests. -*- He submitted that appellant was faced with threat of irreparable damage to its property which could not wait for the service of G notice and so the trial judge was wrong to hold otherwise. -*- Learned counsel finally urged us to resolve both issues in favour of appellant and allow the appeal. -*- In response, the Honourable Attorney-General of Kwara State, Mr Kamaldeen Ajibade SAN, argued that the provisions H -*- of section 71(3) of the Kwara State Revenue Administration Law, 2015, (as amended) are plain and clear to the effect that an -*- action can only be commenced against the respondent in court after the prospective plaintiff has given it one month’s notice of the intending action. He argued that the notice is a pre-condition to the invocation of the judicial powers of the court to entertain the action, for which he cited the case of Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) All FWLR (Pt. -*- 422) 1052, (2008) 9 NWLR (Pt. 1093) 498. Service of pre- -*- action notice having not been effected on the respondent by the appellant, learned Attorney-General argued, appellant’s action -*- was incompetent and left the trial court without jurisdiction to entertain it. Learned Attorney-General made special note of the fact that section 71(3) of the Kwara State Revenue Administration Law, 2015 (as amended) uses the word ‘shall’ which gives no -*- room for discretion in the matter. -*- Learned Attorney-General also argued that contrary to the -*- submission of the appellant’s counsel, the provisions of the Kwara State Revenue Administration Law, 2015 (as amended) are not in conflict with the Personal Income Tax Act, 2004, rather, both -*- Laws should apply mutatis mutandis to the respondent. He submitted that while the Personal Income Tax Act, 2004 is the authority for Tax being demanded by the respondent, the Kwara State Revenue Administration Law creates the respondent and states the procedure to be followed to enforce its tax; that it is both laws that made the respondent the appropriate body with -*- responsibility as far as tax matters are concerned in Kwara State. He urged us to resolve respondent’s sole issue in its favour and dismiss the appeal. -*- The appellant filed a reply brief where it responded to the respondent’s preliminary objection as well as its other arguments in the respondent’s brief. It argued that grounds 6 and 8 were -*- competent and the cases its counsel cited are relevant while the arguments of the Attorney-General are wrong and should be -*- discountenanced. -*- Resolution of issues -*- In considering the appeal, I wish to adopt the respondent’s -*- sole issue as I am of the view that it covers the rather narrow A issue the trial judge decided in his ruling, the correctness of which is being disputed by the appellant. The second issue of -*- the appellant, in my view, is really not a separate issue but mere -*- further argument or elaboration of appellant’s arguments on issue B -*- 1 for contending that the trial judge was wrong. The said issue -*- of the respondent which I shall adopt reads: Whether having regard to the provisions of section 71(3) of the Kwara State Revenue Administration Law, 2015 (as amended), the trial court was right to have upheld the preliminary objection raised by the C respondent and to have declined jurisdiction to hear the case of -*- the appellant. -*- Preliminary objection -*- But before I go on to tackle the said issue, let me first attend to the respondent’s preliminary objection to grounds 6 D -*- and 8 of the appellant’s appeal, even as the objection is in my humble view more of an academic exercise, because its success will have little or no impact on the validity of the only live question in the appeal same having been adequately covered by E grounds 1, 2, 3, 4, 5, 7 and 9 of the amended notice and grounds -*- of appeal. And coming to the objection for whatever it is worth, while it is settled appellate practice that an appeal can only lie -*- against the reason for the decision on appeal (ratio decidendi), and not a mere remark (obiter dictum), I am unable to agree with F -*- the learned Attorney-General that grounds 6 and 8 of the amended grounds of appeal where appellant complained of the reasoning of the trial judge in rejecting her reasons for not serving the -*- pre-action notice (Ground 6) and further holding that the main G authority of Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) All FWLR (Pt. 422) 1052, (2008) 9 NWLR -*- (Pt. 1093) 498 which both parties relied on in the lower court rather supports the respondent and not the appellant (Ground 8) are mere obiter dictum and not ratio decidendi. Learned H -*- Attorney-General’s understanding of ratio decidendi seems too narrow for my understanding, as he appears to confine ratio -*- decidendi to just the final order of the court minus the reasoning that informed that order. It cannot be so, as a court’s decision is always informed and anchored on its reasoning. Both form one continuous strand and form the reason, or ratio decidendi, of the decision. Grounds 6 and 8 of appellant attack the reasons adduced by the judge for his decision and to that extent, they are -*- competent. The preliminary objection is accordingly overruled and dismissed. -*- The merits of the appeal -*- And coming to the main issue in the appeal of the correctness of the decision of the lower court striking out the appellant’s action on grounds of its failure to serve one pre- action notice on respondent before commencing its action, I -*- deem it necessary to first reproduce the provisions of section -*- 71(3) of the Kwara State Revenue Administration Law, 2015 as -*- amended. It reads as follows: -*- “No suit shall be commenced against the Internal Revenue Service before the expiration of a period -*- of one month, after written notice of intention to commence the suit shall have been served on the Internal Revenue Service, by the intending plaintiff or his agent.” -*- This provision is very clear and leaves no room for -*- speculation. It is clear on its face, to the effect that ‘NO SUIT’ -*- shall be commenced against the respondent by anybody without first serving on it a month’s notice of its intention to sue it. -*- It has been said that the purpose of the requirement of G service of pre-action notice to give the person or authority on who it is served decide what to do in the matter, to negotiate, or -*- reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in -*- H controversy. See Mobil Producing Nigeria Unlimited v. Lagos -*- State Environmental Protection Agency & Ors (2002) LPELR - 1887, p. 28, (2002) 18 NWLR (Pt. 798) 1, (2003) FWLR (Pt. -*- 137) 1029, per Ayoola JSC. It is a provision made to enable the A person served the notice breathing time, so as to enable him determine whether he should make reparation to the plaintiff: see Ngelegla v. Tribal Authority, Non Gowa Chiefdom (1953) -*- 14 WACA 325. B -*- Failure to comply with such statutory requirement renders -*- the suit incompetent and liable to be struck out: see again Ngelegla v. Tribal Authority Nongowa Chiefdom (supra); Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors. (2002) LPELR -1887 SC, (2002) 18 C -*- NWLR (Pt. 798) 1, (2003) FWLR (Pt. 137) 1029; Katsina Local -*- Authority v. Makudawa (1971) 1 NMLR 100 at 105, (1971) 7 -*- NSCC 119. -*- In Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) All FWLR (Pt. 422) 1052, (2008) 9 NWLR (Pt. D -*- 1093) 498, (2008) 2-3 SC (Pt 11) 202, the Supreme Court even went further than the position it previously held in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors (supra) - which was that pre-action E notice is for the benefit of the person to be served so he can waive it by failing to raise it in his defence to say that failure to serve pre-action notice where required affects the jurisdiction -*- of the court and totally denies it jurisdiction to adjudicate, so it can be raised by even the court where the defendant for whose F -*- benefit it is made does not raise it. -*- Here the appellant’s argument is two-fold: (1) that the Provisions of section 65 of the Personal Income Tax Act 2004 (hereinafter referred to as PITA), a Federal legislation, has G -*- covered the field on the subject and since that provision does -*- not make a requirement for pre-action notice to be served before commencing action against the respondent, the provisions of section 71(3) of the Kwara State Revenue Administration Law, -*- 2015, as amended requiring pre-action notice are inconsistent H -*- with the superior Federal PITA and so invalid, and (2) that by reason of the fact that the respondent threatened it with distrain -*- action within three days of service of its letter, its case showed exceptional circumstances which left it with no time and option than recourse to court action without first serving pre-action notice on the respondent. I shall consider the two limbs of this argument separately. -*- First, the argument that section 65 of the Federal PITA -*- 2004 covered the field so section 71(3) of the Kwara State Revenue Administration Law, 2015, as amended, is in conflict with it and therefore, null and void. I am afraid it is not the law -*- that once a State law makes a provision that is not contained or contemplated by a similar Federal law, the provision in the State law automatically becomes void. That was the position of this court as put by Tobi JCA, as he then was, (with the concurrence -*- of his brethren Ejiwunmi JCA (as he also then was) and Dalhatu -*- Adamu JCA) in Chikelue v. Ifemeludike (1991) 11 NWLR (Pt. -*- 529) 390 at 403 when he said: -*- “A Federal Act does not use its federal might of covering the field just for the asking and without -*- much ado. A Federal Act does not automatically apply to any or every situation to abrogate a State law covering the same area. Where a Federal Act does not anticipate a situation provided for in a state Law, the doctrine of covering the field cannot be invoked because the doctrine in the first place is not -*- available for invocation. -*- A Federal Act can be invoked on the doctrine of covering the field if it bears out the same tenets, -*- intendment or purpose of State law. For a Federal law to abrogate a State law, the aims and objectives -*- must be exactly the same, not merely alike.” -*- I must say that having perused section 65 of the Personal Income Tax Act (PITA), 2004, it does not appear to me that it -*- conflicts with section 71(3) of the Kwara State Revenue Service -*- Administration Law, 2015. In fact section 65 of PITA 2004 relates to the procedure for appeal to the High Court by a person -*- dissatisfied with the decision of the Appeal Commissioners, if A there is one, on a tax assessment imposed on him by a taxing authority like the respondent. Interestingly, even in that case the section provides for service of one month’s notice on the tax -*- authority before any approach can be made to the High Court. B -*- Section 65 of the Personal Income Tax Act (PITA), 2004, reads: -*- 65. Appeal to Court -*- “(1) Subject to the provisions of section 64(2) of this Act, a tax payer who, having appealed against an -*- assessment made on him to the Appeal C -*- Commissioners under the provisions of section 61 of this Act, is aggrieved by the decision of the Appeal Commissioners, may appeal against the assessment -*- and the decision to the High Court of the State on giving notice in writing to the relevant tax authority D -*- within thirty days after the date on which the decision was given. -*- Where no body of Appeal Commissioners has been appointed with jurisdiction to hear an appeal against E an assessment made on a tax payer, the taxpayer who is aggrieved by the assessment and has failed -*- to relevant tax authority in the manner provided in section 58(3) of this Act, may appeal against the -*- assessment to the High Court on giving notice in F -*- writing to the agree with the relevant tax authority within thirty days of service of notice or the refusal by the relevant tax authority to amend the assessment -*- as desired. G -*- If the relevant tax authority is dissatisfied with a -*- decision of the Appeal Commissioners, it may appeal against that decision to the High Court on giving notice of the refusal to the other party to the appeal -*- within thirty days after the date on which the decision H -*- was given. (Emphasis mine).” -*- There are also sub-sections 3 to 11 of this section but they -*- are not relevant to the issue here, as they all relate to the procedure for hearing the assessment appeal when lodged in the High Court. -*- The appellant who is insisting on adherence to procedure in section 65 of PITA 2004 has not approached the High Court -*- by appeal and did not serve the respondent the requisite thirty days notice required by even the same section 65, assuming her -*- case is appeal to that court. That means the action she instituted before the High Court is a non-starter, even going by section 65 of PITA. -*- In any event, I am unable to see how I can agree with her contention that thirty days pre-action notice requirement in section 71(3) of the Kwara State Revenue Administration Law, 2015 is in conflict with the provisions of section 65 of the Personal -*- Income Tax Act above. If anything the two are rather -*- complimentary and serve the same purpose of ensuring that a -*- defendant to a tax dispute action is given thirty days or one month’s notice before he is dragged to the High Court. At the very worst section 71(3) of the Kwara State Revenue -*- Administration Law, 2015 can only be said to have provided for a situation PITA did not envisage, as per the dictum in Chikelue -*- v. lfemeludike supra. -*- Provisions like section 71(3) are now standard terms in statutes of this kind; they do not take away the jurisdiction of -*- the court (Nigercare Development Co. Ltd v. Adamawa State -*- Water Board (2008) All FWLR (Pt. 422) 1052, (2008) 9 NWLR -*- (Pt. 1093) 498 at 520, (2008) 2-3 SC (Pt. 11) 202) nor curtail -*- access to justice but simply allow the person or body in whose -*- benefit it is made breathing space to take a second look at the intending claimant’s complaint and see if it can take other steps, -*- including negotiation and compromise, to avoid litigation. It is a provision that at the end of the day is intended for the benefit of both parties. -*- In the final analysis, I hold that there is no conflict of -*- Federal and State Law and/or a field covered by section 65 of PITA 2004 being invaded by section 71(3) of the Kwara State -*- Revenue Administration Law. A -*- I think this is a convenient point for me to consider the other limb of the argument of Mr. Bamidele for the appellant to the effect that in exceptional cases, the court would in the interest -*- of justice not insist on service of pre-action notice even when B -*- required by statute and that appellant’s case falls into that -*- category given the fact that the respondent by its 12 October 2016 letter gave it only three days of its intention to resort to distrain its property thus making service of one month’s notice pre-action notice impracticable. For this submission, counsel C relied primarily on the decisions of this court in the cases of Attorney-General, Anambra State v. Eboh (1992) 1 NWLR (Pt. -*- 218) 491 and International Tobacco Company Plc. v. NAFDAC -*- (2007) All FWLR (Pt. 382) 1981,(2007) 10 NWLR (Pt. 1043) -*- 613, (2007) LPELR-8442 (CA). D -*- Eboh’s case, I must point out, had nothing to do with pre- action notice. It was rather all about the standing of Eboh to initiate his chieftaincy action. -*- As for International Tobacco Company Plc. v. NAFDAC E (supra), it is true that this court in that case, while relying on some English decisions, conceded to the rather very practical argument that in exceptional situations the court as a court of justice will not insist on compliance with the statutory requirement -*- of service of pre-action notice. But even there, Ogunbiyi JCA, F -*- who delivered the lead judgment added the useful caveat that ‘There must be an impending danger of such a state of no return or of a state of total destruction of the subject matter,’ as the -*- purpose of the law from all perspectives is to preserve... The G -*- danger must be such that preservation is being put at stake.” -*- Her brother Agbo JCA had a similar view as follows: “It is of course correct to conclude as the appellant has, that the decisions of this court and the Supreme -*- Court on the mandatoriness and constitutionality of H -*- pre-action notice provisions in different statutory provisions can invite exceptions. These would be -*- where irreparable damage would be done if the prospective plaintiff was to issue the notice and wait out the statutory period before accessing the courts. A typical example would be where life and limb are threatened.” -*- It must be noted however, that even in that case their -*- lordships upheld the learned trial judge’s order striking out International Tobacco’s case for its failure to comply with the provisions of section 26 of NAFDAC Act requiring it to serve -*- one month’s pre-action notice on NAFDAC. Interestingly, the facts of that case were rather fairly similar to this case. In that case, NAFDAC had not only once sealed the premises of International Tobacco before but even threatened to seal it up -*- again if it still failed to pay some fees amounting to N660,000.00 -*- NAFDAC demanded from. Anticipating harm to its operations, -*- International Tobacco, without complying with section 26(1) of NAFDAC’s Act by serving it the pre-action notice, commenced action against NAFDAC with a writ of summons, accompanying -*- same with applications for interim and interlocutory injunctions just as the appellant did here. The trial judge, upon NAFDAC’s objection, struck out the suit. That ruling was upheld by this court, Coram Ogunbiyi, Agbo and Mshelia JJ.CA., despite their lordships’ conceding that in exceptional situations the court would not, in the interest of justice, insist on compliance with pre- -*- action notice. In upholding the trial judge’s decision, Ogunbiyi JCA (as he then was) reasoned thus: -*- “The danger must be such that preservation is being G put at stake. Such is not the case at hand especially where the fear entertained was a threat to seal the -*- business of appellant a second time’.” -*- On his part, Agbo JCA justified the need for service of pre-action notice thus: -*- H “In the instant case, the payment of fees demanded -*- by NAFDAC cannot constitute such irreparable damage, as the fees paid are easily recoverable on -*- successful prosecution of the suit challenging it.” A -*- In the instant case, the 12 October 2016 letter of respondent which appellant is clinging tightly to in support of her contention that respondent threatened it with distrain within three days if -*- the assessed tax remained unpaid and so left it with no time to B -*- serve the requisite one month notice does not seem to me to -*- even bear out that interpretation. The said letter contained at page 54 of the records and titled INTENTION TO DISTRAIN FOR NON- PAYMENT OF UNREMITTED PAYE AND WITHHOLDING TAXES ON (2008-2015) reads thus: C -*- “The above subject matter and previous correspondences in this regard refers. -*- Our attention has been drawn to the fact that your -*- company has refused to pay the sum of N328, 423, -*- 252.3 7 (Three hundred and twenty-eight million, D -*- four hundred and twenty-three thousand, two hundred and fifty-two naira, thirty-seven kobo) representing the outstanding tax liability for 2008-2015 tax audit which has become final and conclusive and a demand E notice had in accordance with the provisions of the Personal Income Tax Act, 2004 (as amended), been properly served. -*- We wish to state emphatically that the Service is ready to exercise the alternative power conferred on F -*- it by the provision of section 104 of PITA, 2004, (as amended) to seek redress against your company for non-compliance. -*- You are hereby advised to pay to any of the Kwara G -*- State IGR Account within 3 days from the date of -*- the receipt of this letter. -*- Please be informed that this serves as the final notice to liquidate the said liability. In the event of failure -*- on the part of your company to settle the liability H -*- and distrain is levied, your company shall in addition pay the cost/charges of distrain. -*- Accept our outmost (sic) cooperation as we await your immediate response. -*- Yours faithfully, Dr. Isaac Gbenle, -*- Director, Enforcement, Legal and Monitoring For: Executive Chairman” -*- All the respondent seems to have said in this letter, especially paragraphs 3 and 4 thereof, is that it was ‘ready’ to exercise the alternative power conferred on it by the provision -*- of section 104 of PITA, 2004 (as amended) to seek redress against appellant company for non-compliance and so appellant is ‘advised to pay to any of the Kwara State IGR Account within 3 days from the date of the receipt of this letter.’ It did not say -*- failure to pay within the said three days shall attract immediate -*- distrain as suggested by appellant thereby, making it impossible -*- for her to serve respondent the requisite statutory pre-action notice. I note, particularly too, that even up to this moment, over a year after the service of that letter and its success at the lower -*- court, there is no suggestion that the respondent has tried to carry out its threat to resort to distrain, and that further lends credence to the view that the respondent did not threaten distrain after three days of service of the said letter. -*- Equally noteworthy is that the respondent in its letter also -*- repeatedly referred to the same Personal Income Tax Act (PITA) -*- 2004, precisely section 104 of it, for its threatened distrain action. One then wonders why the appellant did not take advantage of this posture of the respondent by serving it the requisite pre- -*- action notice and there draw its attention to the fact that its remedy of distrain under PITA 2004 under section 104 had not -*- crystallized after all and so its resort to distrain especially within three days as she understood it would be unlawful, unconstitutional and void as it asserts in this suit. That would -*- have even most likely forced respondent to apply the brakes on -*- its threatened distrain action. Interestingly, too among the things required to be included in the pre-action notice by section 71(4) -*- of the Kwara State Revenue Administration Law, are (1) the A -*- cause of action of the intending plaintiff, (2) the particulars of his claim, and (3) the relief, all of which appellant could have utilized to make, powerfully, her case of unripeness of -*- respondent’s right to resort to distrain to respondent and thereby B -*- avoid this litigation. Any further fears appellant might have -*- entertained could well have been allayed by her, by paying the assessed tax to the respondent and recover it later when she wins the suit after service of the notice. Better still, she could have paid the tax to an interest yielding account in some other C bank, or even give respondent a bank guarantee and draw its attention to it while she issues the pre-action notice. After all, she has never complained that she was not in apposition to pay -*- the said amount even as an interim measure or guarantee it. Rather than do all that, she commenced an action straight away D -*- by a writ of summons in the High Court which course even section 65 of PITA 2004 she is citing does not permit. Her complaint of exceptional circumstances seems to me inexistent -*- or self-induced. E -*- In any event, how does the alleged issue of insufficiency of time to serve one month’s pre-action notice also justify her -*- relief three for ‘An order of the court setting aside the defendant’s demand for N328,423,252.37 (Three hundred and twenty-eight -*- million, four hundred and twenty-three thousand, two hundred F -*- and fifty-two naira, thirty-seven kobo) as alleged PAYE and Withholding Tax for 2008 - 2015 from the claimant for being erratic, oppressive, arbitrary, prohibitive, baseless and contrary -*- to law? This relief does not complain about threat of distrain or G even insufficiency of time for compliance with respondent’s demand but simply wants the assessment itself to be set aside -*- completely by the High Court. For appellant to take cover under exceptional situation not to serve pre-action notice, her excuse must cover all her reliefs. That is not the case here. H -*- In the final analysis, I hold that the learned trial judge was correct in his ruling. A suit filed without pre-action notice where -*- All FWLR Access Bank Plc v. Kwara State I.R.S. (Owoade, Uwa JJ.CA) 445 -*- A it is required, renders the action incompetent: Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) All FWLR (Pt. 422) 1052, (2008) 9 NWLR (Pt. 1093) 498 at -*- 520, (2008) 2-3 SC (Pt 11) 202; N.N.P.C v. Tijani (2006) 17 -*- B NWLR (Pt. 1007) 29, (2007) All FWLR (Pt. 344) 129 at 142. -*- The appeal is accordingly dismissed. -*- Parties shall bear their costs. -*- OWOADE JCA: I read in draft, the judgment just delivered by my learned brother, Boloukuromo Moses Ugo JCA. -*- My learned brother has painstakingly dealt with the issues raised in the appeal. -*- I also agree that the appeal be dismissed. -*- I abide with the order as to costs. -*- UWA JCA: I read in advance ,the draft of the judgment delivered E by my learned brother, Boloukuromo Moses Ugo JCA. His lordship has dealt with and resolved the issues that arose in this appeal in detail; I adopt his reasoning as mine and having nothing -*- to add. I also hold that the appeal is unmeritorious and dismiss -*- same. I abide by the orders made as to costs. -*- Appeal dismissed

Judgement
<p><strong>UGO JCA (Delivering the Lead Judgment): </strong>This appeal is against the ruling of Yusuf J. of the High Court of Kwara State of 14 December 2016. By the said ruling, his Lordship upheld the preliminary objection of the respondent and struck out Suit Number KWS/279/2016 of the appellant on grounds of her failure to serve pre-action notice on respondent before commencing her said suit, as required by section 71(3) and (4) of the Kwara State Revenue Administration Law, 2015, as amended by section 25 of the Kwara State Revenue Administration (Amendment) Law, 2016.</p><p>The appellant in that suit claimed against the respondent: </p><p>“1. A declaration that the defendant’s letter dated 12 October 2016 threatening to distrain the assets or property of the claimant as a means of enforcing the payment of the alleged PAYE and Withholding Tax of ₦328,423,252.37 (Three hundred and twenty-eight million, four hundred and thirty-two thousand, two hundred and fifty-two naira, thirty-seven Kobo) for 2008-2015 against t…</p>

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