By Onyewuchi Ojinnaka
A Federal High Court sitting in Lagos Nigeria was on Tuesday urged to strike out a suit filed by a telecommunications giant, MTN Nigeria Communication Ltd, challenging the legality of the Attorney-General of the Federation (AGF) assessment of its import duty, withholding tax and value added tax in the sums of N242 billion and 1.2 billion dollars.
Mr T. A. Gazali, counsel representing the AGF in the suit, while arguing his notice of preliminary objection challenging the court’s jurisdiction to entertain the case, urged the court to decline jurisdiction in the suit, dismiss or strike out same, for being statute barred.
MTN had instituted the suit by a writ, dated September10, 2018, challenging the legality of the assessment of its import duties, withholding tax and value added tax in the sums of N242 billion and 1.2billion dollars by the AGF.
In its writ, the plaintiff (MTN) is seeking among other reliefs, a declaration that the AGF’s demand of the sums of N242 billion and 1.2 billion dollars from it, is based on a process which is malicious, unreasonable and made on incorrect legal basis.
It would be recalled that at the last adjourned date on February 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, while Gazali, a Chief State Counsel from the Federal Ministry of Justice, announced appearance for the AGF.
In adopting his notice of preliminary objection, Gazali submitted that the motion dated November 5, 2018 and filed on November 7, 2018, was brought pursuant to the provisions of Sections 28 of the Public Officers Protection Act.
According to him, his motion was supported by a written address bearing same date and he adopted same, urging the court to decline jurisdiction in the suit as the suit was statute barred.
He submitted 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 contends that it is the prerogative of the A-G to seek payment in cases where 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 added that once there is such failure to file within stipulated time, then the suit is of no significance.
Consequently, 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 is misleading.
He argued that the Public Officers Protection Act, only protects officers acting within the armbit of the law, and that it is the plaintiff’s case tnat vest the court with jurisdiction.
Drawing a distinction between two letters written by the AGF in May and August, Olanipekun argued that in the May letter, the demand 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 percent increase.
He submitted that following defendant’s notice to plaintiff of its intention to initiate processings against it, plaintiff consequently, filed an action in court.
Olanipekun argued that the matter is a 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 – 2017, and its decision conveyed through the office of the AGF by a letter dated August 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 assessment” 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, the plaintiff wants a court order, vacating the AGF’s demand letter dated August 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 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 commencement of cause of action.
AGF argues further that plaintiff’s failure to commence the suit within three months as stipulated by law, robs the court of jurisdiction to entertain same.