The Attorney General of the Federation and Minister of Justice on Tuesday prayed a Federal High Court in Lagos to strike out a suit by MTN Nigeria Communication Limited challenging a N242 billion and $1.2 billion import duties and withholding tax assessments.
The AGF, represented by his Counsel, 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.
The News Agency of Nigeria reports that MTN instituted the suit by a writ, dated September 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 $1.2 billion.
The plaintiff is seeking among other reliefs a declaration that the AGF’s demand of the sums of N242 billion and $1.2 billion from MTN is premised on a process which is malicious, unreasonable and made on incorrect legal basis.
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.
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 November 5, 2018 and filed on November 7, 2018, was brought pursuant to the provisions of sections 28 of the Public Officers Protection Act.
He said his motion was supported by a written address of same date, and he adopted same in urging the court to decline jurisdiction in the suit as same was statute barred.
He said 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 AGF to seek payment in cases where government is “shortchanged”, 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 once there is such failure to file within 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 the plaintiff’s written address in response to the defendant’s notice of preliminary objection.
He said 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 vested 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.
He, however, said in the subsequent letter of August, the sum was now stated as N242 billion and $1.2 billion, describing same as amounting to about 100 per cent increase.
He said following the defendant’s noticed to plaintiff of its intention to initiate proceedings against it, the 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 supersedes 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 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 from MTN Nigeria Communications Limited.
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 argued 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 argued 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.
The AGF argued further that plaintiff’s failure to commence the suit within three months as stipulated by law robs the court of jurisdiction to entertain same.