A Federal High Court, sitting in Abuja, on Thursday deleted some “offending provisions” which takes away the right of the appeal of a tax debtor.
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).
In a judgment, Justice James Omotosho held that the provisions were unconstitutional as they constrained the constitutionally provided right of appeal.
NAN reports that 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 Appeals Tribunal before such an appeal could 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/ 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, 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, who made the Tax Appeal Tribunal (Procedure) Rules (2021) as 1st respondent.
The applicant also joined the Chief Judge of the Federal High Court, who made the Federal High Court of Nigeria (Federal Inland Revenue Service) Practice Directions (2021) and the Federal High Court of Nigeria (Tax Appeals) Rules (2022), and the Attorney General of the Federation (AGF) as 2nd and 3rd respondents in the case.
Delivering the judgment, 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 1st respondent cannot take away such right through the making of a subsidiary legislation.
“The law is trite that where any law or subsidiary legislation contravenes the provision 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, as a court of justice, will ensure that justice is done to all parties regardless of their status. The court would not allow an unjust provision to cripple the constitutional rights of the applicant.
“In final analysis, I therefore do not hesitate to strike down the offending provisions which in the opinion of this court substantially takes away the right of appeal of a tax debtor such as the applicant,” Justice Omotosho said.
