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M.A.N. vs. Att.-Gen., Lagos State

MANUFACTURERS ASSOCIATION OF NIGERIA AND SIXTEEN OTHERS

V

THE ATTORNEY-GENERAL OF LAGOS

HIGH COURT OF LAGOS STATE

( IKEJA DIVISION )

FALASE, J.

SUIT NO: ID/105M/2001

FRIDAY, 14TH NOVEMBER, 2003

CONSTITUTIONAL LAW - Covering the field - Meaning and application of

CONSTITUTIONAL LAW - Grundnorm of Laws in Nigeria - Invalidity of laws inconsistent with

CONSTITUTIONAL LAW - Invalidity of laws inconsistent with

CONSTITUTIONAL LAW - Legislation - Doctrine of covering the field -  Operation of

CONSTITUTIONAL LAW - Legislation - Sales Tax Law - Validity of Lagos State Government legislation

CONSTITUTIONAL LAW - Legislative list - Concurrent legislative list Inconsistent State enactments with Federal enactments - Invalidity of - Need for federal enactment to be valid before state law can be declared invalid

CONSTITUTIONAL LAW - Legislative list - Sales Tax - Who can legislate upon - Att.-Gen., Ogun State vs. Aberuagba (1985) 1 NWLR (Pt. 3)  395 and Nigerian Soft Drinks Co. Ltd. vs. Att.-Gen., Lagos

(1987) 2  NWLR (Pt. 57) 444 distinguished

CONSTITUTIONAL LAW - Legislative lists - Status of in military dispensation

CONSTITUTIONAL LAW - Legislative power - Exercise of in military dispensation

CONSTITUTIONAL LAW - Legislative powers - Sales tax - Right of state government to legislate on

CONSTITUTIONAL LAW - Military rule - Legislations passed under Condition for continued operation of in a presidential system of government

CONSTITUTIONAL LAW - Presidential System of Government -

Relationship between States and Federal Government thereunder

CONSTITUTIONAL LAW - Sales Tax Law - Validity of Lagos State Government’s legislation

CONSTITUTIONAL LAW - Sales Tax Law Cap. 175, Laws of Lagos

State - Status of

CONSTITUTIONAL LAW - Value Added Tax Decree 102 of 1993 and Decree 21 of 1998 vis-a-vis 1999 Constitution - Nullity of to the extent of inconsistency

STATUTE - Sales Tax Law - Validity of Lagos State Government’s legislation

STATUTE - Sales Tax Law Cap. 175, Laws of Lagos State - Status of

STATUTE - Sales Tax Law, Cap. 175, Laws of Lagos State and Amendment Order 2000 - Consistency of with 1999 Constitution

STATUTE - Value Added Tax Decree No. 102 of 1993 and Decree 21 of

1998 -  Status of as existing laws pursuant to 1999 Constitution

STATUTE - Value Added Tax Decree 102 of 1993 and Decree 21 of 1998 -  Operations of vis-a-vis Sales Tax Law, Cap. 175 Laws of Lagos State

STATUTE - Value Added Tax Decree 102 of 1993 and Decree 21 of

1998 vis-a-vis 1999 Constitution - Nullity of to the extent of inconsistency

STATUTE - Value Added Tax Decree 102 of 1993 and Sales Tax Law Cap. 175 Laws of Lagos State - Purport of

TAXATION - Double taxation - Definition of

TAXATION - Legislative list - Sales Tax - Who can legislate upon - Att.Gen., Ogun State vs. Aberuagba (1985) 1 NWLR (Pt. 3) 395 and Nigerian Soft Drinks Co. Ltd. vs. Att.-Gen., Lagos (1987) 2 NWLR

( Pt. 57) 444 distinguished

TAXATION - Sales Tax - Right of state governments to legislate on

TAXATION - Sales Tax Law Cap. 175, Laws of Lagos State - Status of

TAXATION - Sales Tax Law, cap. 175, Laws of Lagos State and

Amendment Order 2000 - Consistency of with 1999 Constitution

TAXATION - Value Added Tax Decree 102 of 1993 and Decree 21 of 1998 vis-a-vis 1999 Constitution - Nullity of to the extent of inconsistency

TAXATION - Value Added Tax Decree 102 of 1993 and Sales Tax Law Cap. 175 Laws of Lagos State - Purport of

TAXATION - Value Added Tax Decree No. 102 of 1993 and Decree 21 of 1998 - Status of as existing laws pursuant to 1999 Constitution

WORDS AND PHRASES - ‘Double taxation’ - Meaning of

WORDS AND PHRASES - ‘Existing law’ - Meaning of

Issues:

1.              Are the Sales Tax Law Cap. 175 Laws of Lagos State 1995, the VAT Decree No. 102 of 1993  and Decree 21 of  1998 Existing Laws within the meaning of section 315 of the 1999 Constitution?

2.              Whether Cap. 175 Laws of Lagos State and the Sales Tax (Schedule Amendment) Order 2000  are inconsistent with provisions of the 1999 Constitution.

3.              Whether Cap. 175 Laws of Lagos and the Sales Tax (Schedule

Amendment) Order are inconsistent with the VAT Decree

No. 102 of 1993 and the provisions of the Tax and Levies ( Approved List for Collection) Decree No. 21 of  1998.

4.              Is the imposition of Sales Tax pursuant to Cap. 175 and (Sales Tax Amendment) Order 2000 violative of the principle of covering the field and that against double taxation?

Facts:

By an originating summons dated the 6th day of February 2001, the applicants in the Lagos State High Court, Ikeja coram Falase, J, raised as issues for determination the following issues:

1.              Whether Sales Tax imposed by the Lagos State Governor on certain goods and items manufactured and services provided in Lagos State set forth in the Sales Tax ( Schedule Amendment) Order 2000 and/or the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994 are inconsistent  with the Value Added Tax Decree No. 102 of 1993 and therefore to the extent of the inconsistency null, void and of no effect whatsoever.

2.              Whether the Sales Tax (Schedule Amendment) Order 2000 and/or the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994 are inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999, and therefore to the extent of the inconsistency null, void and of no effect whatsoever.

3.              Whether Sales Tax (Schedule Amendment) Order 2000 and/ or the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994  are violative  of the provisions of the Taxes and Levies ( Approved list for collection) Decree No. 21 of 1998 and therefore to the extent of the violation and inconsistency null, void and of no effect.

4.              Whether the imposition of Sales Tax pursuant to the Sales Tax ( Schedule Amendment) Order 2000 and the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994 are illegal and violative of the principle against double taxation of persons in the light of the Taxes and Levies (Approved List for collection)

Decree No. 21 and Value Added Tax decree No. 102 of 1993 and therefore null, void and of no effect whatsoever.

Upon a determination of the above, the plaintiffs seek the following reliefs, to wit:

1.              A declaration that the Sales Tax (Schedule Amendment) Order 2000  and the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994 are inconsistent with, in contravention of and ultra vires the Constitution of the Federal Republic of Nigeria

1999 ; the Taxes and Levies (Approved List for collection ) Decree No. 21 of 1998; and the Value Added Tax Decree 102 of 1993 and therefore illegal, invalid, void and of no effect whatsoever.

2.              A declaration that the Lagos State Government has no power, right or jurisdiction to impose any duty, levy or tax howsoever called on any person manufacturing in or bringing any goods or services into Lagos State.

3.              An order nullifying and setting aside both Sales Tax (Schedule Amendment) Order 2000 and the Sales Tax Law Cap. 175, Laws of Lagos State of Nigeria 1994.

4.              An order of injunction restraining the respondents, their servants, and/or agents from causing to be taken, any action or steps under the said Sales Tax (Schedule Amendment) Order 2000  and/or the Sales Tax Law Cap. 175 Laws of Lagos State of Nigeria, 1994.

5.              ALTERNATIVELY to Relief 3, AN ORDER of injunction restraining the respondents whether by themselves, servants, agents or howsoever from giving effect to or implementing sections 34, 5, 6, 9, 10, 11 and 12 of the Sales Tax Law, Cap. 175 , Laws of Lagos State of Nigeria 1994 and the whole of the Sales Tax (Schedule Amendment) Order 2000.