FG urges court to dismiss MTN’s N242bn, $1.2bn tax evasion suit

Peter Fowoyo, Lagos

A Federal High Court, Ikoyi, Lagos was on Tuesday asked to dismiss a suit brought by telecommunications giant, MTN Nigeria Communication Limited challenging a N242 billion and $1.2 billion import duties and withholding tax assessments.

Attorney-General of the Federation and Minister of Justice, Abubakar Malami, who made the request through a lawyer from his office, T. A. Gazali, said the suit is statute barred.

Malami said this while arguing the federal government’s notice of preliminary objection challenging the court’s jurisdiction to entertain the case.

MTN had instituted the suit through a writ, dated September 10, 2018, challenging the legality of the government’s assessment of its import duties, withholding tax and Value Added Tax (VAT) amounting to N242 billion and $1.2 billion respectively.

The mobile services provider had approached the court seeking a declaration that the government’s demand of N242 billion and $1.2 billion from it is premised on a process that it described as malicious, unreasonable and made on incorrect legal basis.

When the matter came up yesterday, Chief Wole Olanipekun (SAN) leading other senior lawyers appeared for MTN while Gazali, a chief state counsel from the Federal Ministry of Justice appeared for the federal government.

Adopting the federal government’s 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 that 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.

According to him, 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, adding that “the action of the plaintiff arose, following a letter written by the attorney-general 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 minister to seek payment in cases where government is “short changed,” 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 that once there is such failure to file within the stipulated time, then the suit is of no significance. Gazali therefore, urged the court to decline jurisdiction, strike or dismiss the suit.

But, Chief Olanipekun (SAN) in adopting the plaintiff’s written address in response to the defendant’s notice of preliminary objection, argued that 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 vests the court with jurisdiction.

Drawing a distinction between two letters written by the attorney-general in May and August respectively, Olanipekun argued that in the May letter, the demanded sum was stated as N114 billion and $854 million.

He, however, said that in a 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.

Olanipekun (SAN) said that following the defendant’s notice to plaintiff of its intention to initiate proceedings against it, the plaintiff consequently, filed an action in court.

HE 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, and urged the court to dismiss the defendant’s notice of preliminary objection.

Meanwhile, Justice Chukwujekwu Aneke has reserved ruling on the preliminary objection until May 7.