The Federal High Court in Lagos on Tuesday reserved ruling on a preliminary objection by the Attorney-General of the Federation (AGF) challenging a N3billion suit by MTN Nigeria Communication Ltd.
MTN sued the AGF for demanding N242 billion and $1.3 billion as import duties and withholding tax assessments from it.
By a September 10, 2018 writ, MTN is challenging the legality of the AGF’s assessment of the import duties, withholding tax and value-added tax.
But, the AGF, in the preliminary objection, is arguing that the suit was statute-barred, thus robbing the court of jurisdiction.
Arguing the motion on Tuesday, AGF’s counsel Mr Tijani Gazali urged the court to strike out the suit on the ground that was instituted outside the time prescribed by law.
He said the AGF was covered by Section 2(a) of the Public Officers Protection Act, so there was no issue of abuse of office.
He said rather than MTN responding to the demand, it filed the case.
But, MTN through its counsel Chief Wole Olanipekun (SAN), who led Damia Dodo (SAN) and Prof Fabian Ajogwu (SAN), argued that the AGF’s objection was unfounded.
MEN’s lawyers maintained that the AGF’s contentions were unacceptable and unknown to law.
They argued that the cause of action actually crystalised when the AGF made a demand of MTN and threatened the company with court action on August 20.
Previous correspondence from the AGF was acted upon in good faith by the company, Olanipekun continued.
He revealed that the previous correspondence had requested a self-assessment.
He posited that the organisation not only undertook the self-assessment but went ahead to submit the result of that process to the AGF’s office.
The assessment, he said, was undertaken by KPMG and showed clearly that no back taxes were owed to the country.
He said AGF’s letter heightened issues and led to the company seeking to protect itself from the unlawful actions of the AGF.
The learned SAN further argued that to the extent that the letter has not been withdrawn, the cause of action continues to exist.
Therefore MTN remains within its rights to approach the courts, he said.
Counsel to AGF was asked directly whether the cause of action had been withdrawn, but he declined to respond.
Olanipekun further posited that from the AGF’s pleadings his office had admitted the submission of MTN in so far as his main argument is not in response to the core issues raised by MTN, but to whether or not the AGF is protected in law from the consequences of his actions.
The SAN argued that it is implicit in the AGF’s failure to address the substance of MTN’s case, that the AGF is aware it does not have the legal authority to take the action it has taken.
The AGF is contending that the suit disregarded Section 2 of the Public Officers Protection Act, which provides that any lawsuit against a public officer must be within three months of what was complained of.
But, MTN is seeking a declaration that the AGF’s demand of N242 billion and $1.3 billion from it was premised on a process that is malicious, unreasonable and based on incorrect legal reasons.
The plaintiff said the purported “revenue assets investigation” carried out by the Federal Government for the period of 2007 – 2017 violated Section 36 of the 1999 Constitution.
MTN is praying the court to declare that the AGF acted in excess of his powers by directing a “self-assessment exercise” which usurps the powers of the Nigerian Customs Service to demand duties on imported physical goods.
It is seeking a declaration that the AGF acted illegally by also usurping the powers of the Federal Inland Revenue Service (FIRS) to audit and demand remittance of withholding tax and value-added tax.
The plaintiff wants declaration that the purported “self-assessment” exercise instituted by the AGF via its letter of last May 10 is unknown to law, null and void and of no effect whatsoever.
MTN is further praying the court to for an order vacating the AGF’s demand letter.
It is claiming N3billion as general and exemplary damages as well as legal costs from the Federal Government.
Justice Chukwujekwu Aneke adjourned until May 7 for ruling.
