IN THE TAX APPEAL TRIBUNAL

SOUTH-SOUTH ZONE

                                                                   HOLDEN AT BENIN

SUIT NO. FHC/B/---/2023

APPEAL No. TAT/SSZ/013/2020

BETWEEN:

STERLING OIL EXPLORATION & ENERGY PRODUCTION CO. LTD

APPELLANT/APPLICANT

AND

BAYELSA STATE BOARD OF INTERNAL REVENUE -----     RESPONDENT

BEFORE:

PROF. OBEHI A. ODIASE-ALEGIMENLEN                    CHAIRMAN

DR DAVID ALA-PETERS                                                   COMMISSIONER

MRS HILDA OFURE OZOH                                               COMMISSIONER

MR VITALIS FRIDAY AJOKU                                           COMMISSIONER

PROF. OLATUNDE JULIUS OTUSANYA                        COMMISSIONER

                                                                                    FRIDAY 17^TH NOVEMBER 2023

RULING

This Appeal was brought before the Tax Appeal Tribunal (South-South Zone Sitting in Benin), dated and filed on 31/08/2020 in Suit No. TAT/SSZ/013/2020. The Respondent being dissatisfied with the Appellant/Applicant’s failure/refusal to file and pay the assessed tax liability in the sum of N350,000,000.00 (Three Hundred and Fifty Million Naira only) in respect of PAYE, Withholding taxes, Development Levy, Bayelsa State Infrastructural Maintenance Levy.

On the 24^th August, 2023, this Honourable Tribunal gave judgment in this matter in favour of the Respondent. The Appellant has filed this Motion for stay of Execution of the Judgment of the Honourable Tribunal. The Motion is dated and filed on 6^th September 2023 praying the Tribunal for the following:

1.      An Order staying the Execution of the judgment of this Honourable Tax Appeal Tribunal, which judgment was delivered on the 24^th August, 2023, pending the hearing and determination of the Appeal to the Federal High Court, Benin City.

2.      And for such further Order or Orders as the Honourable Tribunal may deem it to make in the circumstances of this Appeal.

The Motion is supported by an eleven paragraph Affidavit sworn by Mr. Sushant Bidaye, Appellant’s Manager Tax. The Appellant also filed a Written Address in support of its application for stay of execution and formulated a lone issue which is:

whether the Appellant has established special circumstances to warrant the             grant of this application in its favour.

The Respondent did not file any process in response to this application but have left it to the discretion of this Tribunal.

The Appellant’s application is mainly hinged on the grounds that:

a.      There are special circumstances which make this stay of execution necessary to be granted.

b.      That if this application is refused that it will destroy the subject of the proceeding in this Appeal, which is the judgment sum.

c.      Foist the Federal High Court which is the Appellate Court to the Tax Appeal Tribunal a situation of complete helplessness if this Appeal succeeds.

d.      Render nugatory any Order or Orders of the Federal High Court.

e.      Paralyze in one way or the other the exercise by the litigant of his Constitutional Right of Appeal.

Appellant/Applicant’s Counsel has made heavy weather about the fact that this matter has gone on Appeal and has equally exhibited a Notice of Appeal and has expressed optimism that the Ground of Appeal raises a substantial arguable points of laws.

The position of the law is that stay of execution is not automatic upon filing an Appeal. See the case of Ikere Local Government V. Olunuyiwa Olufemi Auguston Adelusi (2008) AFWLR (Pt. 404) page 1534, page 1348, paragraphs C-D.

On our part the Tribunal adopts the sole issue formulated by the Appellant which is:

whether the Appellant has established special circumstances to warrant the             grant             of this application.

Furthermore Appeal does not operate as a stay of execution or of proceedings. See the case of Josiah Cornelius Ltd. V. Ezenwa (1996) 4 NWLR (Pt. 443) page 391 at 410 paragraphs D-E per Ogundare JSC. What is more, a stay of Execution will only be granted if and only if the Court is satisfied that there are special and exceptional circumstances as to warrant doing so. This is because the judgment of the Court is presumed to be correct and rightly made until the contrary is proved or established. The Court will not therefore make a practice of depriving a successful litigant the fruit of his success. See the case of Olunloyo V. Adenitan (2001) 4 NWLR (Pt.734) page 699 at 709 paragraph H per Kutigi JSC (as he then was).

To obtain a stay of Execution against a successful party, an Applicant must show special circumstance to warrant depriving the successful party the fruit of his judgment. See the case of Federal Inland Revenue Services V. Kandelite Engineering Company Ltd. All Nigerian Tax Cases Vol. 9, Page 534

The Appellant/Applicant has cited some cases in support of his position. However, it is trite that each case is determined based on its peculiar facts. It should also be stated clearly that it is not in every case where the Applicant has raised a serious or recondite issue of law in his ground of Appeal that he is ipso facto entitled to a stay of Execution, as Schedule 5(17) of the Federal Inland Revenue Service (Establishment) Act 2007 makes provisions for steps to be taken while pursuing an Appeal. See the case of Agbage V. Adelekan (1990) 7 NWLR (Pt.164) page 595 at 617 paragraphs C-D per Akpata JSC paragraphs 16 (1) (2) and (3) and 17 5^th Schedule to the FIRS (Establishment Act) 2007. For better appreciation, Paragraph 16(3) is hereunder reproduced:

Notwithstanding that an appeal is pending, tax shall be paid in accordance          with    the decision of the Tribunal within one month of notification of the amount    of the tax payable and pursuance of sub paragraph (1) of this paragraph.

It is therefore our position that paragraphs 16 of the FIRS Act is a condition precedent for an Appellant to pursue a successful Appeal. Sub-paragraph (2) of paragraph 16 becomes activated where the taxpayer fails to as ordered by paragraph 16 (3).

A combined reading of paragraph 16 (1) and (3) of the 5^th Schedule to the Federal Inland Revenue Service (Establishment) Act 2007 is that the Taxpayer cannot successfully appeal unless he has paid the adjudged sum in accordance with the decision of the Tribunal within one month of notification.

The Appellant/Applicant has not shown any evidence to this Tribunal that it has fulfiled the above conditions precedent for an Appeal to be entered in the Appellate Court. In the final analysis, the Tribunal holds that the Appellant/Applicant has not met the condition precedent for a successful Appeal and that it hasn’t established any special or exceptional circumstance to warrant the Tribunal to disturb the Respondent’s peaceful enjoyment of the fruit of its judgment, accordingly this Application for stay of execution of the judgment of this Tribunal made on the 24^th day of August 2023 is dismissed.

This is the Ruling of the Tribunal

Dated this __         17^th  _____ day of __       November___ 2023.

Signed:

Hon. Prof. Obehi Adetokunbo Odiase-Alegimenlen                                                                                        Chairman

Hon Dr. Ala-Peters David                          Hon. Mrs. Hilda Ofure Ozoh   

 Member                                                                                Member

 Hon. Barr. Ajoku Vitalis Friday                                         Hon. Bar. Vitalis Friday Ajoku                         Hon. Prof. Olatunde Julius Otusanya

              Member                                                                               Member                                                                        Member                               

REPRESENTATION:

M. O. Oseghale          -                       Appellant/Applicant

I. M. Beinbein -                                  Respondent