Court voids laws denying tax debtor’s right of appeal

A Federal High Court in Abuja on Thursday struck out “offending provisions,” which take away a tax debtor’s right of appeal.

Specifically, the affected provisions include the Tax Appeal Tribunal (Procedure) Rules ( 2021), the Federal High Court of Nigeria (Federal Inland Revenue Service) Practice Directions (2021) and the Federal High Court of Nigeria (Tax Appeals) Rules (2022).

Justice James Omotosho, in a judgement, held that the provisions were unconstitutional as they constrain the constitutionally provided right of appeal.

The first provision voided by the court was Order III Rule (6) (a) of the Tax Appeal Tribunal (Procedure) Rules (2021).

It prescribes that an aggrieved person, challenging the tax charged by the Federal Inland Revenue Service (FIRS) or any relevant tax authority, shall pay 50 per cent of the disputed amount into any account so designated by the Tax Appeal Tribunal before such an appeal can be heard.

The second provision affected was Order V Rule 3 of the Federal High Court of Nigeria (Federal Inland Revenue Service) Practice Directions (2021).

It prescribes that where a person intends to challenge an assessment served on him or her, he or she shall pay half of the assessed amount into an interest-yielding account of the Federal High Court, pending the determination of the application and proceedings.

The third provision was Order V Rule 1 of the Federal High Court of Nigeria (Tax Appeals) Rules (2022).

It prescribes that where an appellant is appealing against the decision of the Tax Appeal Tribunal, the sum contained in the decision shall be deposited in an interest-yielding account maintained by the Chief Registrar of the Federal High Court.

A former President of the Nigerian Bar Association (NBA), Joseph Daudu, SAN, had filed the suit marked FHC/ABJ/CS/12/2022.

Daudu, who argued, among others, that the provisions were unfair, unlawful, and a violation of the right to appeal, sued the Minister of Finance, Budget, and National Planning as the first respondent concerning the Tax Appeal Tribunal (Procedure) Rules (2021).

The applicant also joined the Chief Judge of the Federal High Court and the Attorney General of the Federation (AGF) as second and third respondents.

Delivering the judgement, Justice Omotosho said: “Even though the 1st respondent (the minister) is empowered to make rules for the conduct of appeal, he is not expected to construct an embargo to the enjoyment of the right to appeal of any appellant.

“The right to appeal is a constitutional right and the first respondent cannot take away such a right through the making of subsidiary legislation.

“The law is trite that where any law or subsidiary legislation contravenes the provisions of the Constitution, it shall be declared void to the extent of its inconsistency.

“The said provisions being challenged by the applicant were made to favour the Federal Inland Revenue Service without any attempt to balance the interest of a tax debtor.

“For a tax debtor who is unable to afford to deposit the entire assessed sum of money, he is automatically deprived of his right of appeal.”

According to him, this court will ensure that justice is done to all parties, regardless of their status.

“This court, by virtue of Section 6(6)(b) of the Constitution, is empowered to determine issues between government and persons,” he said.

The judge said that the court would not allow an unjust provision to cripple the constitutional rights of the applicant.

“In the final analysis, I, therefore, do not hesitate to strike down the offending provisions, which, in the opinion of this court, substantially take away the right of appeal of a tax debtor such as the applicant,” Justice Omotosho said.

The judge, therefore, proceeded to declare the provisions of Order III Rule (6) (a) of the Tax Appeal Tribunal (Procedure) Rules, 2021, as “unconstitutional, null, and void.