Case Stated by High Court.

 

Petition against assessment for Income Tax under section 14 (1) of Non-Natives Income Tax (Protectorate) Ordinance-Meaning of words" derived from" in section 4 (1) of Ordinance-" Derived from Nigeria" does not mean .• derived from employment in Nigeria ..•

Held: (Affirming the decision of the learned trial Judge, that income which is derived from employment in Nigeria but is neither derived from, nor received in Nigeria is not assessable for income tax under section 4 (1) of the Non-Natives Income Tax (Protectorate) Ordinance.

There is no need to set out the facts.

Petitioner not represented.

D. Hagley for Commissioner of Income Tax.

The following joint judgment was delivered :-

BUTLER LLOYD, ACTING C.J., NIGERIA, CAREY AND BROOKE, JJ.

This is a case stated by the Judge of the Enugu-Onitsha Division for the consideration of this Court in the following terms :-

1. This is a petition against assessment by Bertram Lasbrey, Bishop, of the Church Missionary Society, presented under section 14 (1) of the Ordinance.

2. Petitioner says-

(a) that he was assessed to pay income tax on salary received during a period of leave in England;

(b) that his salary is paid from a fund subscribed in England and not continued to from Nigeria;

and (c) that therefore his leave salary, being neither derived from nor received in Nigeria, is not assessable to tax. 3. The Commissioner of Income Tax says the leave salary is derived from an employment in Nigeria and therefore it is assessable under section 4 (1) of the Ordinance.

4. I held that the words of section 4 (1) "income accruing in, derived from or received in Nigeria in respect of gains or profits from any trade, vocation, employment, etc.," do not render the Petitioner's leave salary liable to tax under that section.

5. The question for the consideration of the West African Court of Appeal is whether or not this is a correct interpretation of the law.

I t is common ground that the facts are as set out by petitioner in :2 (a) and (b) above.

The argument for the Crown was the same in the Court below and before Us and consisted of the contention that the salary in question is assessable as being derived from Nigeria in the sense that it is derived from employment in Nigeria, and it was argued that the case was on all fours with Potters case N.L.R. XI, page 144.

I n his decision on the case the learned trial Judge said as follows :-

" \Vith great rcspect to the decision in that (i.e. Potters) case, I am unable to apply it here. If the section rearl "chargeable income derived from gains or profits from any vocation, employment, etc" in Nigeria." there is no doubt Petitioner's leave salary would be assessable. But these are not the words of the section, and I do not think the words of the section " derived from Nigeria in respect of gains or profits from any vocation, etc .••. can bear that interpretation.

" ,\s the section stands, I think a distinction must be drawn between the Petitioner's case, and the cases, for example, of a merchant or a public servant in Nigeria, where the income derives from Nigeria in respect of the gains from his trade or vocation, no matter where the recipient receives it.

" The Petitioner's leave salary is neither received in Nigeria nor derived from Nigeria; I therefore hold that it is not assessable under section 4 (1) of the Ordinance,"

In our opinion the learned trial Judge was right in his decision and for precisely the reasons given in the above passage. Were we to construe the word "derived from Nigeria" as meaning " derived from employment in Nigeria" we should be reading into the Ordinance words that are not there and which would materially affect the meaning. This is a matter for the Legislature and not for the Court.

In our opinion the decision of the learned trial Judge was right and must be affirmed.