TAXATION AND ALL OF US

Taxation is as old as the human society. Evidence of its antiquated history abounds in the holy book The Bible - which records that Jesus Christ our Lord was born at a time when the reigning Emperor Caesar Augustus commanded a census of the whole Roman Empire for the purpose of taxation.
In His short yet most eventful life, the Saviour was recorded as endorsing the legitimacy (legality) of taxation as captured in the very popular phrase "Render unto Caesar what is Caesar and unto God what is God's", he practiced what he preached-recall the directive to Apostle Peter to go a fishing and use the coin retrieved from the mouth of a fish to pay for His and Peter's taxes. And for the evangelist in our midst at least too notable tax collectors who were public enemy No. l in those days, Matthew the writer of the first book of the New Testament and the diminutive yet irrepressible Zaccheus. It must be noted that the essence of taxation in those ancient times was as a tribute, an acknowledgement of servitude and an instrument of oppression.
Even much after biblical times, taxation continued to shape the course of history in several parts of the world; taxation by the British colonialists of the American colony led to the Boston massacre in 1770, where British troops massacred American citizens, Boston Tea party of 1773, which eventually led to the American Revolution War at the end of which the United States of America attained sovereignty. In the United Kingdom there was the obnoxious poll tax which led to several social upheavals in that nation in the course of history.
Coming nearer home, the British as part of its colonial administration in Nigeria introduced various taxes in Nigeria the most obnoxious of which was the poll tax which was meant to be paid by every adult, male or female. This of course only worsened the master/servant relationship between the British and the indigenes leading at times to many unrests the most prominent of which was the Aba Riot of 1929. There were also other localized social discontents in the colonial and immediate post-colonial era such as the Abeokuta women uprising led by irrepressible Mrs. Funmilayo Ransome - Kut and the deposition by the government of the defunct western Nigeria of Sir Olateru-OIagbegi as Olowo over tax related matters.
However, in spite of the inglorious antecedents of taxation world wide, since the dawn of the modem era when the symbiotic relationship of the society as represented by the government with the citizens became well detailed in a social contract taxation has assumed a very critical and positive role in all progressive societies; it is axiomatic that it is the civic duty of every adult in society to pay tax except in special and exceptional cases. Governments in all society demand the fulfillment of this obligation in return for which they provide basic conditions of living and necessary infrastructure, which allow each citizen to realize his full potentialities. This is the social contract in a simplified form.
In even the most advanced societies, where citizens are otherwise free to pursue their quest for happiness to the full at times bordering on licentiousness, the permissiveness of society never extends to payment of taxation. In the United States of America for example seen by many as the bastion of permissiveness the aura of liberty remarkable does not extend to taxation, The celebrated Boxing promoter Don King has fought many battles over the payment of taxation, several years ago Televangelist Jimmy Swaggart was embroiled not only in sexual scandal but problems of tax evasion, even now popular Movie Actor Wesley Snipes is in prison for tax evasion, and most recently a number of the highly charismatic President Obama's nominees could not get US ministerial confirmation over matters relating to payment of taxes. Across the sea in Europe taxation is no less seriously enforced, a few years ago popular Nigerian Televangelist Pastor Asimolowo had a running battle with the British tax officials on the payment of tax, but befitting of his status as a true man of God, he has since made the necessary adjustments to emerge last year as the highest tax paying cleric in the whole of the United Kingdom and one of the highest tax paying individuals in the nation.
Coming nearer home, in a strictly legal fashion there is a surfeit of legislation on various areas of taxation at Federal, State and even Local Government levels. Personal Income Tax popularly called the PAYE, pay as you Earn, Companies Income Tax Capital Gains Tax, Petroleum Profit Tax, Withholding Tax, Value Added Tax etc. Talking strictly on the theoretical plain, if the nation were to strictly enforce its sundry tax legislations there will be more than enough money to run the country smoothly and provide all the basic needs of the citizens, with little or no regard to the once free flowing Petro-dollars which has been the mainstay of the Nigerian economy in the last 35 years. But then in Nigeria the best theories count for nothing.
In this instance the reason why the nations tax regime has not been a major source of revenue earner for government at any level unlike in other places is not far fetched but rooted in our immediate past history. At Independence and for more than a decade thereafter, the nation's tax laws particularly in relation to the individual were strictly enforced. Even, the nation's jurisprudence on taxation of that era was quite rich and still provides veritable reference materials for modem day lawyers. ADERAWOS V FBIR (1966) LLR 195 FBIR V REZCALLAH (1962) ANLR 1 FBIR V ALUMINIUM 1 AG (1971) 2 NCLR 121. AKWULE V R (1963) ANLR 105.
But the increase importance of Oil revenue in the nation's economy following the astronomic rise in the influence of the Organization of Petroleum Exporting Countries OPEC from 1974 was to herald a paradigm shift away from taxation as a major source of revenue of government with double-edged result. Government did not need to bother itself with strict enforcement of the nation's tax laws on the citizens, since tax administration is expensive even in the most advanced societies, by the same token since the government particularly the Federal Government did not derive its money from the tax paying citizen, it felt no moral duty to provide the citizens with the basic conditions and, infrastructure necessary for the advancement of society. Thus the bulk of the money made by the nation in the hay days of huge oil sales went into private pockets to the detriment of the nation's development and progress. The citizenry for its own part developed its own reaction of not paying taxes to the state, in the belief that any such payments only went into private pockets to be shared by those in power and their cronies. This moral overhang has continued till date particularly at the Federal level and sadly enough, there is nothing till date to debunk this moral question. Even in the dying days of the military government when Tax Consultants - which ought to have read Private Enforcers were appointed to augment the fast dwindling oil revenue, nothing by way of development came the way of the nation from the huge sums of money raked in from companies. The administration of the Value Added Tax, VAT 80% of which is derived from Lagos State by the Federal authorities has not fared any better. In the premises of these historical realities every attempt by government particularly at the Federal level either to increase tax or devise fresh forms of taxation has always met with stiff resistance by the citizens, such as when a few years ago, the Federal Inland Revenue Service, FIRS sought to raise the amount of VAT from 5% to 15% citing the practice prevalent in the Western African sub-region, the citizens of the country rose in Unison with one voice against the proposal and the plan was promptly shelved. Unfortunately, till date apart form posturing and postulations such as the much touted Draft National Tax Policy there is nothing by the Federal Government to morally justify increased T'axation of Nigerians by the Federal Government or its agencies. This is most unfortunate!
However, the Lagos State Government with its performance since the inception of democracy 10 years ago and more particularly in the last 2 years of the administration of Governor Babatunde Fashola SAN has demonstrated clearly its moral entitlement to demand of its citizens, the discharge of their civic responsibility to pay their taxes as and when due. This is one government that can look any and every citizen in the eye based on its service delivery in virtually every area of life, health, education, security, roads and transportation, construction and repair of social infrastructure, to answer the question in the mind of every citizen why he needs to pay his taxes promptly. In this regard one notes with some degree of interest bordering on amusement, the recent visit of the nations Tax helmsman Mrs. Omoigui Okauru to the Lagos State Inland Revenue Service. Madam Okauru must be told in no uncertain terms that the Lagos State model will not work at the Federal level except the Federal Government matches its quest for more tax revenue with the ability to deliver the elusive "dividends of democracy" as Nigerians are entitled in the manner of the Americans 250 years ago to demand that "no taxation without performance".
In specific regard to Lagos States increased revenue drive based on the payment of Personal Income Tax while this is a most welcome initiative in the face of dwindling Federal Allocation based equally on even faster dwindling Oil Revenue and the global melt down but great care must be taken to get the maximum, not necessarily full support as there will always be tax-defaulters in any society, support of the citizenry. In this area the rate of assessment is most critical and the government must resist the temptation to rely heavily on the opinion of smooth talking and sartorially elegant consultants and technocrats who are cut off from the day to day realities of the citizens. Rather the government needs to do wide rage consultations with members of the private sector who are the real genuine and "grassroots" stakeholders in coming up with a realistic and practical rate of assessment that will guarantee success for the state's new tax initiative. With specific reference to the Rate of Assessment that is being advertised for professionals particularly lawyers, it is submitted that the advertised list is most unrealistic and needs to be downwardly reviewed to ensure massive compliance by lawyers.
If not the state administration led by a Senior Advocate of Nigeria will be put into an embarrassing position of either turning a blind eye to massive default by his colleagues and risk being branded biased in favour of his Constituency, or be forced to "descend heavily" on erring colleagues and lose vital support of his learned friends.
The model of realistic and practical assessment arrived at by genuine consultations with stakeholders should be applied across the board to all strata of Lagos society.

Men of God and payment of taxes.
Since this article started off by venturing into areas otherwise reserved for clerics and theologians perhaps it is only fitting that this article be brought to an end on this issue. As stated earlier on in this article, the Lord Jesus Christ, the author and minister of the Christian faith paid tax» so by rule of theological precedent, no clergy of the Christian faith can be heard to question the state's right to demand taxes of all citizens, believer or pagan. Historically the tax demanded by imperial Rome of her conquered people was very oppressive which was why tax collectors were most loathed by ordinary citizens yet Christ endorsed the tax and set a good example of paying the same. Whilst not claiming expertise or even serious knowledge of other faiths, it can be reasonably assumed that the civic responsibility of the Christian faith is equally replicated in other faiths.
However, practical concerns have been raised in respect of clerics, who do not earn a fixed salary in respect of their service to their Creator, how are these unsalaried men of God who depend on the free will gifts and donations of members of their congregations be assessed to tax? Here there are no easy answers. But let there be wide consultations with all stakeholders and sincerity on every one's part.
A real man of God who earns a salary ought not to lie about his status as a salaried worker or found it difficult to meet his obligation to the state. Neither should the state be carried away by the flamboyance and opulence of a handful of clerics to believe that men of God are cash cows to be milked for revenue.
But what is not in dispute is that where the Church or Mosque leaves the realm of the Celestial to engage in business like other mere mortals it is liable to be taxed like every one else. AREC V JDP (2007) 5-6SC96.

At the end of the day, the inescapable facts are:
(1) All of us as law-abiding citizens are under a duty to pay our taxes as when due.
(2) The rate of assessment must be fair, reasonable and realistic, not mindless, revenue driven assessment.
(3) The state must deliver and continue to deliver on the provision of amenities, infrastructure and conditions of living, that guarantee the greatest happiness of the largest majority.

A VIEW OF ELECTRONIC GENERATED EVIDENCE

One of the most heated debates within the rank and file of the legal profession is the issue of the admissibility of electronic generated evidence particularly computer generated statements of Accounts.
Opinions are sharply divided amongst lawyers as to the admissibility of computer generated evidence with all manner of views being expressed some logical, others plausible while some are extreme bordering on the ridiculous.
One of the more popular views expressed is that the Evidence Act being an Old legislation enacted on the 1st of June, 1945 did not contemplate computer evidence thus statements of accounts produced by the computer are inadmissible.
The decision of the Court of Appeal in UBA PLC V SAFPU (2004) 3 NWLR (pt 861) 516, that Statements of Accounts produced by the computer in the form of print outs are inadmissible under section 97(1) and (2) of the Evidence Act even though otherwise relevant. For good measure the lamentation of the Court of Appeal in that case of the need for the amendment of the Evidence Act to be able to admit computer generated Statements of Account is quoted with flourish. Yet another equally competing and popular legal view is that computer generated Statements of Account are admissible in evidence under the Evidence Act. The decision of the Court of Appeal in the case of TRADE BANK V CHAMI (2003) 13 NWLR (pt. 836) 158 which conflicts with the earlier cited case of UBA V SAFPU (2004) 3 NWLR (pt. 861) 516 where computer generated statement of account was admitted by virtue of Section 38 of the Evidence Act is usually cited off-hand by lawyers in this group. .
In recent times some high profile criminal cases conducted by the Economic and Financial Crimes commission EFCC where statements of Accounts generated by computer prints-cut were rejected for not satisfying section 97 (1) (g) and (2) (e) of the Evidence Act have only sparked off more heated debates as to whether the Evidence Act allows for computer generated Statement of Account with both groups above maintaining their hard line positions on computer generated evidence.
The humble view of this column is that neither of the conflicting decisions in UBA V SAFPU AND TRADE BANK V CHAM1 (SUPRA) satisfactorily answers the question whether computer generated evidence is admissible under the Evidence Act or not. Indeed by giving conflicting decisions on the admissibility of computer generated the Court of Appeal with due respect has only added to the confusion over the admissibility of computer generated evidence as every lawyer and Court has a perfect excuse to pick and choose between the two decisions in support of their reactions.
Beyond further fueling the controversy neither decision directly answers the question whether computer generated statement of accounts is directly admissible under the Evidence Act taking into consideration the provisions of section 97 of then Evidence Act.
On the question of whether or not the absence of the word computer from the Evidence Act which was enacted pre the computer age, ipso facto makes computer generated evidence inadmissible. It is submitted that there is nothing esoteric in the word computer or in the device itself, what is important to note is that computer generated evidence like any document is produced by mechanical process, whether it be IBM Machine, computer print out even the archaic manual type writer or typesetting machine. The essence of statutory Interpretation is to interpret the words of a statute in line with current realities. That is why the American Constitution is still being interpreted till date even though made over 250 years and the Magna Carta of 1215 was on the English Statute Books for over 700 years before the statute was rested about a quarter of century ago. At no time did the age of the law stand in the way of its application to modem situations. Thus, with all due respect it is erroneous in law that on account of the old age of the Evidence Act and the fact that the word computer is missing from the Evidence. Act, computer generated evidence is inadmissible under the Evidence Act. In respect of the TRADE BANK V CHAMI case, it is submitted that the decision was delivered per Incuriam. On the nature of the Banker's Book/Statement of account admissible under the Evidence Act Section 97 was not adverted to, only sections 38 and 91 were referred to. The Court held that while section 38 is applicable section 91 was not. With due respect to their Lordships it has been held in a long line of Supreme Court case that a Statement of Account/Banker's Book to be admissible under the Evidence Act it must satisfy the requirements of section of 97 (2) (e) of the Evidence Act.

YASSIM V BARCLAYS BANK DCO (1968) 1 ANLR 171
YESUFU V ACB (1976) 4 SC 1
OGUMA V 1.BWA (1988) 1 NWLR (pt.73) 658.
Thus it cannot be correct that just because statement of account is generated by computer it is exempted from the strict certification requirements of section 97 (2) (e) of the Evidence Act.
If anything, the myriad of manipulations that a computer generated document could be put makes this strict requirement all the more imperative, We shall return to this theme later.
On the other hand the decision of the Abuja Division in UBA V SAFPU is not anymore helpful either. Even the lamentation about the need to amend the Evidence Act to be able to admit computer-generated Statement of Accounts is somewhat confusing.
As stated earlier there is nowhere in the Evidence Act that prevents the admissibility of computer generated statements of Account, so any talk of an amendment of the Evidence for that specific purpose is misplaced. In addition, it is not clear from the Judgment whether the refusal to admit the computer print out statements of Account is because it is simply a computer generated document or because of the provisions of section 97 (2) (e) of the Evidence Act were not met. The Court in fact held that the computer print out statement of account is relevant, so if it relevant is it not because it satisfies the provisions of the Evidence Act on admissibility and is thus cognizable under the Act. It is submitted that the Court ought to have limited its comments to the failure of that particular document to meet the requirements of the Evidence Act under Section 97 (2) (e) in which case the talk about legislative amendment to admit computer generated statement of account becomes unnecessary.
The view of this column is that computer generated statements of account just like any other computer generated evidence is admissible as documents generated through mechanical process but in the case of bank's statements section 97 (2) (e) of the Evidence Act as to certification must be strictly adhered to: to wit.
(a) That the book from which the entries were copied and made was at the time of making one of the ordinary books of the bank.
(b)That the entry was made in the usual and ordinary course of business;
(c) That the book is in the custody and control of the bank.
(d)That the copy has been examined with the Original entry and is correct.

UNITY LIFE & FIRE INSURANCE V IBWA (2001) 7 NWLR (pt.713)610.
YASSIM V BARCLAYS BANK DCO (SUPRA)
YESUFU V ACB (SUPRA)
OGUMA V IBWA (SUPRA)
All these decisions are Supreme Court decisions which are juridically superior to the 2 cases of TRADE BANK V. Chami and UBA V SAFPU which are not only conflicting but the source of so much controversy.
The above Supreme Court decisions are directly on point in respect of the admissibility of the Statements of Accounts/Bankers Books, thus remain the law on the admissibility of statements of account no matter how generated be it manually or by any form of mechanical process including by way of computer print out. It is in fact submitted that the compelling reason for certification is on account of the ease with which computer whiz-kids from all sides of the divide, be it those out to defraud others including banks and unwary customers or those on the side of banks and even prosecuting agencies bent on nailing a fraudster, can readily manipulate electronic records and documents for their parochial interest. After all, the primary rule of the computer m spite of all advancements is GIGO Garbage In Garbage Out. It is whatever information you feed into the system true or false that you get.
Certification remains the only guarantee against manipulated evidence from being freely admitted in a Court of law. The Supreme Court succinctly captured the compelling need for certification in the case of ARAKA V. EGBUE (2003) 7 SC 75 @ 84/85: "One main objective behind section 97 (2) (C) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the Original. This in addition to the need/or the preservation of public documents. In this age a/sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context a/section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process a/copying the Original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the Original and therefore not a carbon copy of the Original. The court has not the eyes of an eagle to detect such tricks”

We can add nothing useful to this observation of the apex Court.

CONCLUSION:
The Evidence Act even in its pristine form can readily accommodate computer generated evidence including computer print-out statement of accounts but such evidence must comply with the certification provision of section 97 (2) (e) of the Evidence Act. That remains the only way to ensure that only authentic computer generated statement of accounts rather than manipulated, forged, contrived or fake statements of accounts are admitted in Evidence.
Nevertheless, the entire Evidence Act needs to be overhauled to enact a modem and up to date Evidence Act for our dear nation to bring our law and jurisprudence of Evidence in line with the best global practices.

Ademola A. Adewale
Legal Practitioner.