March 26, 2019

$1.2 bn Tax Assessment: AGF prays court to strike out MTN’s suit

Malami, open grazing

Abubakar Malami (SAN) . Photo by Gbemiga Olamikan

The Attorney General of the Federation (AGF) on Tuesday, prayed a Federal High Court in Lagos, to strike out a suit by MTN Nigeria Communication Ltd, challenging an N242 billion and 1.2 billion dollars import duties and withholding tax assessments.

Abubakar Malami (SAN) . Photo by Gbemiga Olamikan

The AGF, represented by Counsel, Mr T.A Gazali, also prayed the court to decline jurisdiction in the suit, dismiss or strike out same, for being statute barred, while arguing his notice of preliminary objection challenging the court’s jurisdiction to entertain the case.

Newsmen gathered that MTN instituted the suit by a writ, dated Sept.10, 2018, challenging the legality of the AGF’s assessment of its import duties, withholding tax and value-added tax in the sums of N242 billion and 1.2billion dollars.

The plaintiff is seeking among other reliefs, a declaration that the AGF’s demand of the sums of N242 billion and 1.2 billion dollars from MTN, is premised on a process which is malicious, unreasonable and made on an incorrect legal basis.

At the last adjourned date on Feb.7, the court had fixed Tuesday (Today) for hearing of the preliminary objection by the AGF, after parties informed the court of service of their various processes.

When the case was called on Tuesday, Chief Wole Olanipekun (SAN), appeared for MTN, leading other Senior Counsel of the inner Bar,

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Gazali, a Chief State Counsel from the Federal Ministry of Justice, announced appearance for the AGF.

Adopting his notice of preliminary objection, Gazali told the court that the motion dated Nov.5, 2018 and filed on Nov.7, 2018, was brought pursuant to the provisions of sections 28 of the Public Officers Protection Act.

He said that his motion was supported by a written address of the same date, and he adopted same in urging the court to decline jurisdiction in the suit as same was statute barred.

He said that consequent upon the plaintiff’s response to the objection, he had also filed a reply on points of law dated March 22 and filed March 25

He said: “The action of the plaintiff arose, following a letter written by the A-G to MTN, asking them to pay taxes which in my opinion, they evaded,”

He argued that the plaintiff instituted the suit more than three months after the said letter was served, adding that same rendered it statute barred.

Besides, he argued that it is the prerogative of the A-G to seek payment in cases where the government is “short-changed”, adding that the question whether the Public officer acted within the scope of his office, can only be determined if the suit is filed within three months.

He said that once there is such failure to file within the stipulated time, then the suit is of no significance.

Gazali urged the court to decline jurisdiction, strike or dismiss the suit as it pleases the court.

In response, Olanipekun adopted plaintiff’s written address in response to the defendant’s notice of preliminary objection.

He argued that the defendant by his application is not arguing that the action is statute barred but simply justifying its action, adding that certain paragraphs of its application are misleading.

He argued that the Public Officers Protection Act, only protects officers acting within the ambit of the law and that it is the plaintiff’s case that vest the court with jurisdiction.

Drawing a distinction between two letters written by the A-G in May and August, Olanipekun argued that in the May letter, the demanded sum was stated as N114 billion and 854 million dollars.

He, however, said that in a subsequent letter of August, the sum was now stated as N242 billion and 1.2 billion dollars, describing same as amounting to about 100 per cent increase.

He said that following the defendant’s noticed to plaintiff of its intention to initiate processing against it, the plaintiff consequently, filed an action in court.

Olanipekun argued that the matter is live action, it is extant, it is continuous, adding that the defendant’s letter of August supercede that of May, and has not abated or been withdrawn.

He urged the court to dismiss the defendant’s notice of preliminary objection.

After listening to respective submissions of Counsel, Justice Chukwujekwu Aneke reserved ruling on the preliminary objection until May 7.

In its writ of summons, MTN is seeking declaratory reliefs on the following grounds:

That the purported “Revenue assets investigation” allegedly carried out by the Federal Government on MTN, for the period of 2007 to 2017, and its decision conveyed through the office of the AGF by a letter dated Aug. 20, violates the provisions of section 36 of the constitution.

A Declaration that the AGF acted in excess of its powers, by purporting to direct through its letter of May 10, a “self-assessment exercise” which usurps the powers of the Nigerian Customs Service to demand payment of import duties on the importation of physical goods.

A Declaration that the AGF acted illegally, by usurping the powers of the Federal Inland Revenue Service, to audit and demand remittance of withholding tax and value-added tax.

A Declaration that the purported “self-assessment” exercise instituted by the AGF via its letter of May 10, is unknown to the law, null and void and of no effect whatsoever.

In addition, the plaintiff wants a court order, vacating the AGF’s demand letter dated Aug. 20, for the sums of N242 billion and 1.2 billion dollars from MTN Nigeria Communications Ltd.

Besides, MTN is claiming a total sum of N3 billion in damages, against the defendant, which covers General damages, exemplary damages, and Legal costs.

Meanwhile, in its preliminary objection, the AGF argues that the plaintiff in seeking redress to the subject matter, has just three months from the date of the cause of action arose, to institute the action.

It argues that the plaintiff commenced the suit in clear disregard to section 2 of the Public Officers Protection Act, which provides that any action commenced against a public officer, must be made within three months from the commencement of a cause of action.

AGF argues further that the plaintiff’s failure to commence the suit within three months as stipulated by law robs the court of jurisdiction to entertain same. (NAN)