Division: High Court (West)

Date of Judgment: 4th October, 1961

Case Number: Warri Suit No. M/58/61

Before: Kester, J.

Application for leave to apply for Order of Mandamus.

Applicants had appealed against a tax assessment by the respondents. They subsequently brought this application asking for leave of the court to apply for an Order of Mandamus to compel the respondents to grant a stay of execution i.e. not to collect income taxes from the applicants until their appeals against assessments are heard. It was argued for the applicants that by virtue of section 51(1B) of the W.R. Income Tax Law, W.R. Cap. 48, a stay of collection was automatic once an appeal against an assessment of tax had been lodged; that the application was for an Order of Mandamus to compel the respondents to grant the stay of collection and not merely an application for such a stay.

HELD:

(1) Compliance with section 51(1B) of the Western Region Income Tax Law does not stay or suspend the right of the Revenue authority to collect the assessed tax pending the determination of an Appeal against the assessment. The section provides solely for the payment of certain fees and the deposit of a certain proportion of the assessed tax as conditions precedent to the perfection of an Appeal against the assessment.

(2) The power to stay or suspend the collection of assessed tax pending the determination of an appeal against the assessment is the discretion of the Board or the Revenue authority under Western Region Law.

(3) The power to make an Order of Mandamus is a discretionary power, which will not be exercised by the court unless there is imposed upon the person against whom the Order is sought a public duty to do the act sought to be compelled to be done.

(4) An Order of Mandamus does not lie to compel a person to do an act which is in his general discretion to do or to refrain from doing.

Application refused.

Case referred to:-

R. v. All Saints, Wigan, (1876) 1 A.C. 611; 35 L.T. 381; 41 J.P. 132; 25 W.R. 128.

Law referred to:-

W.R. Income Tax Law, W.R. Cap. 48 (As amended by W.R. No. 7 of 1960 and W.R. No. 11 of 1961), sections 51(1B), 54(2)(a).

APPLICATION for leave to apply for Order of Mandamus.

Ororho for the Applicants.

Akpori for the Respondents.

Kester, J.:-This is an application by the applicant and 424 others asking for leave to apply for an order of mandamus directed against the Western Urhobo Rating Authority to compel the authority to stay execution in respect of all taxes against which the applicants have appealed and for such further order or orders as the court may deem fit to make. It is a sequel to a former application M/36/61 brought by the applicants for leave to apply for an order of mandamus to compel the respondent to forward the 425 appeals to the High Court, Warri, for hearing and determination. Leave was granted, but stay of execution was not asked for and it was not granted. The present application is in substance one to order the respondent to grant a stay of execution, that is, not to collect income taxes from the applicants until their appeals are heard.

Counsel for the applicants says that by virtue of section 51(1B) of the Income Tax Law Cap. 48, Laws of Western Region of Nigeria Vol. 11 once an appeal has gone to the High Court, a stay of execution is automatic; and that the application is for order of mandamus to compel the respondent to grant the stay and not a mere application for stay of execution.

An order of mandamus is an order requiring an act to be done. There must be a public duty to do the act by the person or persons charged to do it. The making of the order is discretionary (R. v. All Saints, Wigan (1876) 1 A.C. 611 at 620).

Section 51(1B) of the Income Tax Law only provides for what an intending appellant should do to get his appeal heard. It does not operate to stay the collection of the tax. By complying with the provisions of section 51(1B) an appellant does not enjoy immunity from payment of his tax until his appeal is heard. If it was found on appeal that too much tax has been paid, the amount overpaid shall be refunded with interest. Section 54(2)(a) of the Law refers.

There is no duty cast upon the respondent that once a would be appellant has complied with the provisions of section 51(1B) it should grant the latter a stay of execution as of right.

The granting of a stay of execution is discretionary, and where a person or authority is empowered to exercise discretion in a matter, he cannot be compelled to do so by a higher authority. In the circumstances, I consider the present application misconceived.

Application refused.