The Revenue Court Versus The Environmental Sanitation Court: An Interrogation Of The Court With Requisite Jurisdiction Over Pollution Discharge Fee Under The Akwa Ibom State Environmental Protection And Waste Management Agency Law, Cap. 47, Laws Of Akwa Ibom State Of Nigeria, 2000

 

Written By David Andy Essien, Esq.

INTRODUCTION:

It has become a norm for the Akwa Ibom State Environmental Protection and Waste Management Agency (hereinafter referred to as “the Agency”) to charge defaulters of Pollution Discharge Fee, whether natural or corporate persons, before the Revenue Court of Akwa Ibom State (hereinafter referred to as “the Revenue Court”). While we commend the Agency for the civil and progressive steps it has taken to avoid resort to self help, we are not unmindful of the fact that a square peg can only fit into a square hole. Nothing more; nothing less! A square peg in a round hole is an anathema: a motion without progress. Without doubt, it is this state of affairs that has stirred this interrogation to ascertain the appropriate Court with jurisdiction to hear and determine the issue of non-payment of Pollution Discharge Fee under the Akwa Ibom State Environmental Protection and Waste Management Agency Law, Cap. 47, Laws of Akwa Ibom State of Nigeria, 2000 (hereinafter also referred to as “the EPWMAL”).

JURISDICTION OF THE REVENUE COURT OF AKWA IBOM STATE:

The Revenue Court of Akwa Ibom State is a court with state-wide jurisdiction bifurcated into Districts for the sole purpose of administrative convenience.  See Section 2(1) and (2) of the Revenue Court Law, Cap. 111 Laws of Akwa Ibom State of Nigeria 2000 (hereinafter referred to as “Revenue Court Law”). Being a court of summary jurisdiction, the Revenue Court in Akwa Ibom State is generally clothed with jurisdiction to hear and determine all causes and matters relating to the revenue of the Akwa Ibom State Government (hereinafter referred to as “Government”) and in which the Government or any person suing or being sued on behalf of the Government or any organ of Government or any Local Government council is a party. See Section 4(1) of the Revenue Court Law. Importantly, Section 4(2)(a) – (f) of the Revenue Court Law, without rendering redundant the general jurisdiction of the Revenue Court as to revenue matters, earmarked certain revenue areas that the Revenue Court can exercise jurisdiction in terms of collection, to wit:

1. Personal income tax under the Income Tax Management Act;
2. Tenement rates under the Tenement Rating Law;
3. Levy under Economic Development Levy Law;
4. Fees under Registration of Business Premises Law;
5. Any fees, levies and taxes (by whatever name called) imposed under any other Law in force in the State;
6. Any fees, rates, levies and charges (by whatever name called) duly imposed by any Local Government council under any byelaws of such Council.

By Section 4(3) of the Revenue Court Law, the Revenue Court is empowered to have and exercise jurisdiction summarily to hear and determine all criminal proceedings in respect of any offences connected with any of the matters specified in subsection (2)(a) – (f) of Section 4 of the Revenue Court Law. Additionally, the Revenue Court is clothed with exclusive original jurisdiction to determine the causes and matters and criminal proceedings mentioned in Section 4 of the Revenue Court Law. Any jurisdiction conferred by any law upon any other Court, Tribunal or Panel to hear and determine any of the matters mentioned in Section 4 of the Revenue Court Law ceases to have effect. See Section 5 of the Revenue Court Law.

JURISDICTION OF THE ENVIRONMENTAL SANITATION COURT OF AKWA IBOM STATE OVER POLLUTION DISCHARGE FEE:

The issue of payment of Pollution Discharge Fee by organizations and industries in Akwa Ibom State is not without statutory enablement. The EPWMAL, in Section 36, makes the payment of Pollution Discharge Fee mandatory for organizations and industries mentioned in the respective categories in the Second Schedule to the EPWMAL. By Section 37(4) and (5) of the EPWMAL, any person who fails or neglects or refuses to pay the prescribed Pollution Discharge Fee within the specified time shall be guilty of an offence and liable on conviction to a fine not less than One Hundred Thousand Naira. Where the person who commits the said offence is a statutory corporation, body corporate or un-incorporate, such person or body shall be liable, on conviction, to a fine not less than Five Hundred Thousand Naira in addition to paying the Pollution Discharge Fee, if he has not complied with that provision.

However, where it is proved that the said offence was committed with the consent or connivance of or attributed to any neglect or omission on the part of the Director, Manager, Secretary or other similar officer of the corporation, body corporate or incorporate, as the case may be, then such person shall be liable on conviction to a maximum term of five years imprisonment without an option of fine. See Section 37(6) of the EPWMAL.

Consequently, the EPWMAL established the Environmental Sanitation Court and clothed it with jurisdiction to hear and determine all cases of any person or group of persons who commit an offence under the EPWMAL. For the purpose of clarity and completeness, I reproduce Section 42(1), (2) and (3) of the EPWMAL, in extenso:

“42.   (1)     There is hereby established in each Federal Constituency, an Environmental/Sanitation Court which shall be presided over by a magistrate to be assigned by the Chief Judge.

            (2)     The Court shall have jurisdiction to try all cases or matters within the Federal Constituency under which it is established.

(3)     The Court shall speedily try and determine all cases brought before it.” (Underlining mine, for emphasis)

Section 40(4) of the EPWMAL states as follows:

“40.   (4)     An Inspector authorized by the Managing Director may cause arrest of any person or group of persons who commits an offence under this Law and shall arraign such persons before an Environmental Sanitation court within twenty four hours of the arrest.” (Underlining mine, for emphasis)

In fact, even the Interpretation Section of the EPWMAL, Section 48, defines the word, “Court,” in the said Law to mean “Environmental Sanitation Court”.

THE INTERROGATION:

The issue of jurisdiction has a paramount place in our system of adjudication and its importance cannot be over-emphasized. A court without jurisdiction is equivalent to a car without an engine: elegant but motionless. And no matter the level of pressure applied, it remains sadly still in its awesomeness and dignity. Jurisdiction may therefore imply the power or authority of a court to adjudicate over a particular subject matter brought before it. See the hallowed views of Honourable Justice Jummai Hannatu Sankey, JCA, in the case of MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) 11 NWLR (Pt. 1046) 436 at pp. 549 – 550, paras. H – C (CA).

One of the indicia of jurisdiction, as laid down by the ne plus ultra of judicial wisdom in Nigeria in the case of MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587 (SC); (1962) 2 SCNLR 341, is that the subject matter of the case must come within the jurisdiction of the court and where a court proceeds without jurisdiction, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided.

By a wholesome and harmonious reading of Sections 40(4), 42(1), (2) and (3) and 48 of the EPWMAL set out above, one point is indubitably established: that the Environmental Sanitation Court is the only Court set up under the EPWMAL to try all persons or group of persons who commit  an offence under the EPWMAL. This designation and pride of place confers exclusive original jurisdiction on the Environmental Sanitation Court with respect to the issue of non-payment of Pollution Discharge Fee regulated by Sections 36 and 37(4), (5) and (6) of the EPWMAL. Speaking with vigor on the meaning of “exclusive jurisdiction” in the case of MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) 11 NWLR (Pt. 1046) 436 at p. 482, paras. B – C, Ratio 2 (CA), Honourable Justice John Afolabi Fabiyi, JCA (as he then was), defined it as “a court’s power to adjudicate an action or a class of actions to the exclusion of all other courts.” And it is a regnant principle of law that where it is intended to confer exclusive jurisdiction on a Court, the relevant Law must expressly provide for it. See SUN INSURANCE NIGERIA PLC V. UMEZ ENGINEERING CONSTRUCTION COMPANY LIMITED (2015) 11 NWLR (Pt. 1471) 576 at p. 612, paras. D – H.

Flowing from the foregoing illumination, the Revenue Court of Akwa Ibom State is bereft of jurisdiction to try any person or group of persons who commit an offence under the EPWMAL, including the issue of non-payment of Pollution Discharge Fee. This is because the express and specific mention of the “Environmental Sanitation Court” by the EPWMAL excludes every other Court, including the Revenue Court. The applicable principle of law is embroidered and weaved in the legal maxim: expressio unius personae vel rei, est exclusio alterius or inclusio unius est exclusio alterius or enumeratio unius exclusio alterius – when translated into English Language, it means: the express mention of one person or thing is the exclusion of another or the inclusion of one is the exclusion of another or the enumeration of things excludes the others not enumerated; respectively. See the celebrated case of ATTORNEY GENERAL OF THE FEDERATION & 2 ORS V. ALHAJI ATIKU ABUBAKAR & 3 ORS (2007) 10 NWLR (Pt. 1041) 1 at p. 179, paras. C – F, Ratio 14 (SC). I invite my Lord, Honourable Justice Adolphus Karibi-Whyte, JSC, to speak on this. Hear my Lord in the case of F. C. UDOH & ORS. V. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD & ANOR. (1993) 7 SCNJ 436 (Part II) at p. 443, paras. 30 – 40, Ratio 8:

“It is well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusio alterius.” (Underlining mine, for emphasis)

Furthermore, it is hornbook law that the jurisdiction of a Court of law is statutory and where a statute, like the EPWMAL, specifically vest jurisdiction in a particular Court, such a Court enjoys exclusive jurisdiction over and above every other Court. Honourable Justice Clara Bata Ogunbiyi, JCA (as he then was), giving judicial imprimatur to the above stated position, had this to say in the case of MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) 11 NWLR (Pt. 1046) 436 at p. 517, paras. C – E, Ratio 8 (CA):

“On the same principle is another related authority of Enagi v. Inuwa (1992) 3 NWLR (Pt. 231) 548 at 565 wherein this court also has the following to say:-

‘The law is settled that where a particular tribunal has been specifically assigned by law to determine a question, it is not the business of another tribunal which lacks express powers to determine such questions to venture into the determination of the question.’ ” (Underlining mine, for emphasis)

It may be forcefully argued that Section 4(2)(e) of the Revenue Court Law confers jurisdiction on the Revenue Court to summarily hear and determine all causes and matters relating to the collection of fees, rates, levies and charges (by whatever name called) duly imposed by any other Law in force in Akwa Ibom State and that by this particular provision, the Revenue Court has concurrent jurisdiction with the Environmental Sanitation Court on causes and matters relating to the collection of “Pollution Discharge Fee” as provided for in Section 36 of the EPWMAL. Regrettably, no amount of legal gymnastics and finesse can steady the wavering boat of the above argument. The applicable maxim in this situation is generalia specialibus non derogant which literally translates “things general do not restrict (or detract from) things special”. And Courts are enjoined to treat the specific situation as an exception to the general rule. The Law Lord, Honourable Justice Francis Fedode Tabai, JSC, speaking on the principle expressed in the Latin maxim generalia specialibus non derogant in the celebrated case of ATTORNEY-GENERAL OF THE FEDERATION & 2 ORS V. ALHAJI ATIKU ABUBAKAR & 3 ORS (2007) 10 NWLR (Pt. 1041) 1 (SC) at pp. 92 – 93, paras. H – C; pp. 148 – 149, paras. H – C, Ratio 36, aptly remarked thus:

“The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision.” (Underlining mine, for emphasis)

In a similar situation in the case of THE GOVERNOR OF KADUNA STATE V. LAWAL KAGOMA (1982) ANLR 160 (SC) at p. 173, Ratio 5; (1982) 6 SC 87 at pp. 107 – 108, Honourable Justice Fatayi-Williams, CJN, commented as follows:

“…it is now trite that where there are two enactments, one making general provisions, as in the case of the provisions of section 2 of the Commissions of Inquiry Law (Cap. 25), and the other making specific provision, as in the case of the provisions of section 98 of the Local Government Law (No. 1 of 1977), the specific provisions are, by implication, excluded from the general provisions.”

The sum total of these authorities is that the general provision contained in Section 4(2)(e) of the Revenue Court Law will, by implication, be excluded from the previous specific provisions enacted in Sections 40(4), 42(1), (2) and (3) and 48 of the EPWMAL because it cannot be presumed that the intention of the law makers is to confer exclusive original jurisdiction in a specific enactment (EPWMAL) and thereafter proceed to take away the exclusive original jurisdiction and make it concurrent in a general enactment (the Revenue Court Law). The admonition of the learned jurist, Honourable Justice Muhammed Lawal Shuaibu, JCA, in the case of CAMERON OFFSHORE SYSTEM (NIG) LTD V. AKWA IBOM ENVIRONMENTAL PROTECTION & WASTE MANAGEMENT AGENCY & ANOR (2021) LCN/15033 (CA); (2021) Legalpedia (CA) 41490 is instructive in this wise. Please, Hear him:

“It needs to be restated that jurisdiction of a Court to hear a matter is a hard matter of law that can only be determined in the light of the enabling statute. Thus, a Court of law cannot add to or subtract from the provisions of the statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. It is the statute that is the master and all that a Court of law does is to interpret the provisions of the statute in order to achieve the clear intention of the lawmaker.” (Underlining mine, for emphasis)

Furthermore on this point, it is elementary law that in the construction and interpretation of statutory and other provisions, a general provision does not extend to those things that have been previously provided for specifically in the same or other legislation. This principle is encapsulated and given life in the Latin maxim: generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. See the case MALLAM ABDULFATAI A. AIYELABAGAN V. LOCAL GOVERNMENT SERVICE COMMISSION, ILORIN & ANOR (2015) All FWLR (Pt. 802) 1697 at pp. 1733 – 1738 (CA). In the leading case of FEDERAL MORTGAGE BANK OF NIGERIA V. P. N. OLLOH (2002) 4 SCNJ 423 at pp. 430 – 431, paras. 25 – 20, Ratio 6; (2002) 4 S.C. (Pt. II) 117 at pp. 122 – 123 (SC), the Law Lord, Honourable Justice Samson Odemwingie Uwaifo, JSC, commented extensively on the length and breadth of the said principle. At the risk of prolixity, here is a taste of its honey:

“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter: see The Vera Cruz [11884] 10 App. Cas. 59 at p. 68 per Earl of Selbourne L.C.; Blackpool Corporation v. Starr Estate Co. Ltd. [1922] 1 A.C. 27 at p. 34 per Viscount Haldane. The Latin maxim is: Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa [A general clause does not extend to those things which are before specially provided for]. In Bangboye v. Administrator-General [1954] 14 WACA 616, Bairamian, J., explained the principle when he observed at p. 619 as follows:

‘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 provision 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. In the words of Lord Selbourne L.C., in Seward v. ‘Vera Cruz’ [1884] 10 App. Cas. 59 at 68, “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention so to do”….

The above rule of construction applies equally, of course, when the special and the general provisions are enacted in the same piece of legislation: see Dryden v. The Overseers of Putney [1876] 1 exch. 223 at 232.’ ” (Underlining mine, for emphasis)

Drawing strength from the above exposition, the special provisions enacted in Sections 40(4), 42(1), (2) and (3) and 48 of the EPWMAL (Cap. 47, Laws of Akwa Ibom State of Nigeria, 2000) vesting jurisdiction over the issue of non-payment of Pollution Discharge Fee in the Environmental Sanitation Court precedes the later general and/or blanket provision contained in Section 4(2)(e) of the Revenue Court Law (Cap. 111, Laws of Akwa Ibom State of Nigeria, 2000) which vest jurisdiction in the Revenue Court over causes and matters relating to the collection of fees, rates, levies and charges (by whatever name called) duly imposed by any other Law in force in Akwa Ibom State. Consequently, it is safe to say that any case relating to the issue of non-payment of Pollution Discharge Fee must be heard and determined by the Environmental Sanitation Court.

CONCLUSION:

From all the arguments thus far, the inevitable summation is that the court with requisite jurisdiction over the issue of issue of non-payment of Pollution Discharge Fee in Akwa Ibom State is the Environmental Sanitation Court. Thus, no glosses or interpolations are expected from the courts in the application of the very unambiguous and clear provisions of the EPWMAL on this point. I recommend, for proper guidance, the wise counsel of the revered jurist, Honourable Justice Obande Ogbuinya, JCA, in the case of BELLO MUSA MAGAJI V. ALHAJI ISHOLA ARE OGELE 3PLR/2012/16 (CA) at p. 82, paras. A – E; (2012) LPELR – 9476 (CA), to wit: