Publication

Every person is entitled to approach the court over any issue affecting their rights and interests. The court is empowered, under Section 6(6)(b) of the Constitution, to determine issues between persons and government respectively. It follows, therefore, that the right of appeal is guaranteed under the Nigerian constitution. However, there exist provisions under our Tax laws that appear to put a clog to the right of Appeal of Tax debtors.

Recently, a former President of the Nigerian Bar Association (NBA), Joseph Daudu, SAN, took the Minister of Finance, Budget, and National Planning to court regarding the aforementioned violation of his right to appeal as a tax debtor.
Order III Rule (6) (a) of the Tax Appeal Tribunal (Procedure) Rules (2021) prescribes that an aggrieved person challenging the tax charged by the Federal Inland Revenue Service (FIRS) or any relevant tax authority, shall pay 50 percent of the disputed amount into any account so designated by the Tax Appeal Tribunal before such an appeal can be heard.

Also, Order V Rule 3 of the Federal High Court of Nigeria (Federal Inland Revenue Service) Practice Directions (2021) 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 and proceedings.

Furthermore, Order V Rule 1 of the Federal High Court of Nigeria (Tax Appeals) Rules (2022) 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.
The above provisions have hiterto constituted a barrier to the exercise of the right of appeal of tax debtors because, Tax debtors who are not able to comply with the above prescriptions were denied the right to appeal against the decisions of the FIRS.

The above injustice and flagrant breach of the constitutional right of appeal of a tax debtor had existed unabated until the recent court decision of a Federal High Court in suit number FHC/ABJ/CS/12/2022 filed by the former President of the Nigerian Bar Association (NBA), Joseph Daudu, SAN, challenging the constitutionality of the above provisions.

“The right to appeal is a constitutional right and the first respondent cannot take away such a right through the making of subsidiary legislation. The law is trite that where any law or subsidiary legislation contravenes the provisions 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 favor 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,” said Justice Omotosho, who delivered the judgment, according to Daily Post.
 
The above decision of the court striking down the offending provision is sound, deserves to be applauded and upheld by superior courts.