26 June 2019

Nigeria: $1.3bn Tax Assessment - Witness' Absence Stalls Trial in MTN Suit Against AGF

A Federal High Court in Lagos on Wednesday adjourned until October 29 hearing in a suit filed by MTN Nigeria Communication Ltd against the Attorney-General of the Federation over N242 billion and $1.3 billion import duties and withholding tax assessments.

The News Agency of Nigeria (NAN) reports that MTN instituted the suit by a writ, dated September 10, 2018, challenging mainly, the legality of the AGF's assessment of its import duties, withholding tax and value-added tax in the sums of N242 billion and $1.3 billion.

The suit, which was earlier fixed for trial, could not proceed on Wednesday, following the absence of a witness for the AGF.

When the case was called, Wole Olanipekun a Senior Advocate of Nigeria (SAN) announced appearance for the plaintiff, while T.A Mokolu and T. Adesanya, appeared for the AGF.

Mr Mokolu then informed the court that their witness had challenges being in court.

He added that the lead counsel, Tijani Gazali, was also held up in Abuja.

On that premise, the counsel urged the court to grant an adjournment in their favour.

In response, Mr Olanipekun said he was not opposed to the request for an adjournment and would not also ask for cost, but noted that such adjournment was a drawback to the suit.

After listening to respective counsel, Justice Chukwukekwu Aneke adjourned the case until October 29 and 31 for trial.

The plaintiff is seeking among other declaratory reliefs, a declaration that the AGF's demand of the sums of N242 billion and $1.3 billion from MTN is premised on a process which is malicious, unreasonable and made on incorrect legal basis.

Meanwhile, in a preliminary objection challenging the suit, the AGF had argued that the plaintiff's action is statute barred having been filed out of time.

It argued that in seeking redress to the subject matter, the plaintiff had just three months from the date the cause of action arose, to institute the action, adding that same was filed out of lawfully stipulated time.

The AGF had urged the court to dismiss the plaintiff's suit as being caught up by the statute of limitation, which fobs the court of jurisdiction.

But, Justice Aneke had in a ruling delivered on May 7, dismissed the preliminary objection in its entirety on the grounds that the case was not statute barred.

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, 2018, 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, 2018, 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, 2018, 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, 2018, for the sums of N242 billion and 1.3 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.



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