Court Fixes May 7 For Ruling On AGF’s Objection To MTN’s suit $1.3bn Withholding Tax
A Federal High Court in Lagos will on May 7 deliver a ruling on a preliminary objection filed by the Attorney General of the Federation Abubakar Malami (SAN) against a suit filed by MTN Nigeria Communication Ltd, challenging the legality of N242 billion and 1.3 billion dollars import duties and withholding tax assessment imposed on it by the government.
MTN is asking Justice Chukwujekw Aneke to award it the sum of N3 billion in damages against the federal government for what it described an illegality premised on a process which is malicious, unreasonable and made on incorrect legal basis.
However, in a preliminary objection, the AGF contended that MTN’s failure to commence the suit within three months of the action being complained about, as stipulated by law, robs the court of its jurisdiction to entertain the suit.
While arguing the application on Tuesday, a lawyer from the office of the AGF, Tijani Gazali urged the court to strike out the suit on the ground that the power of the AGF to write a letter to MTN for the payment of the import and withholding tax is included under section 2A of the Public Officers Protection Act.
“MTN filed this case as a result of a letter written by the AGF asking MTN to the pay tax due to the Federal Government of Nigeria over the past 10 years, but rather than responding to this directive they instituted this case”, said the lawyer.
Gazali also maintained that the plaintiff in seeking redress on the subject matter, has just three months from the date the cause of action arose- to institute the action.
The lawyer contended that the plaintiff commenced the suit in clear disregard of 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 commencement of cause of action.
He further insisted that the plaintiff’s failure to commence the suit within three months as stipulated by law, robs the court of jurisdiction to entertain the suit.
But MTN, through its lawyers led by Chief Wole Olanipekun (SAN) told Justice Aneke that the objections of the AGF was unfounded.
Olanipekun submitted that the era of claiming that a suit is stature barred has been abolished in the Nigerian Jurisprudence.
He cited Order 29 Rule 4 of the Federal High court Civil Procedure Rule to the effect that the preliminary objection of the AGF was filed out of time and since there is no application for extension of time, it must fail.
The senior lawyer also argued that there is no competent application before the court.
In conclusion, Olanipekun argued that the court cannot at this stage dismiss or strike out the suit without the evidence of parties.
He then asked the court to dismiss this objection as been frivolous.
After listening to the arguments of both parties, Justice Aneke fixed his ruling for May 7.
By a writ of summons dated Sept. 10, 2018, MTN had challenged the legality of the AGF’s assessment of its import duties, withholding tax and value added tax in the sums of N242bn and $1.3bn dollars.
Amongst other reliefs, MTN wants the court to make a declaration that the AGF’s demand of the sums of N242bn and $1.3bn dollars, is premised on a process which is malicious, unreasonable and made on incorrect legal basis.
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 – 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 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 ” exercise instituted by the AGF via its letter of May 10, is unknown to law, null and void and of no effect whatsoever.”)
In addition, MTN wants a court order, vacating the AGF’s demand letter dated Aug. 20, for the sums of N242billion and 1.3 billion dollars from MTN Nigeria Communications Ltd.
Besides, MTN is claiming a total sum of N3 billion in damages, against the Federal Government, which covers general damages, exemplary damages, and legal costs.