$1.3bn Tax Assessment: ”MTN’s suit is timely” – Court rules against AGF

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A Federal High Court Lagos on Tuesday, held as timely filed, a suit by MTN Nigeria Communication Ltd, against the Attorney General of the Federation, over alleged N242 billion and 1.3 billion dollars import duties and withholding tax assessments.

The News Agency of Nigeria (NAN) reports that MTN instituted the suit by a writ, dated Sept.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 dollars.

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 dollars 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 argues 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.

AGF had urged the court to dismiss the plaintiff’s suit as being caught up by the statute of limitation.

Justice Chukwujeku Aneke took arguments on the Preliminary objection from counsel on March 26, after which the court reserved ruling until May 7 (today).

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Aneke, citing authorities of superior courts of record, the court held that for purposes of limitation, time begins to run from the date the cause of action accrued.

“The patent question to ask is when did the cause of action arise; is it on May 21, 2018 when the plaintiff received the defendanit’s letter dated May 10, 2018, or on Aug. 23, 2018 when it received the defendant’s demand letter dated Aug 20, 2018.

“In my view, paragraph 24 among other paragraph of the plaintiff’s statement of claim is germane in resolving this issue; MTN avers that the AGF afforded it insufficient time to respond to its queries

“Judging from the plaintiff’s writ of summons and statement of claim as I am concerned to do, it will seem to me that the plaintiff’s cause of action with respect to this suit, arose on Aug. 23, 2018, when plaintiff received the defendant’s letter of demand dated Aug. 20, 2018, and nor May 21, 2018 when it received the demand letter of May 10, 2018.

“From the endorsement on the writ, this suit was commenced on Sept. 10, 2018, and a simple calculation shows that from Aug. 23, 2018 when cause of action arose to Sept. 10, 2018 when the suit was instituted, a period of three months has not expired as envisaged, for the suit to be statute barred,” he said

The court held that the irresistible conclusion to be drawn from the narrative, is that the suit is not statute barred

“The preliminary objection is hereby dismissed in its entirety,” he said

The court has fixed June 26, for hearing in the main suit.

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 Aug. 20, 2018, violates the provisions of section 36 of the constitution.

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“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 Aug. 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.

In its notice of preliminary objection, AGF had argued that the plaintiff commenced the suit in clear disregard for 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.

AGF argued that plaintiff’s failure to commence the suit within three months as stipulated by law, robs the court of jurisdiction to entertain same. (NAN))

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