The Tax Appeal Tribunal is a creation of Statute by virtue of the provisions of paragraph 1(1) of the Fifth Schedule to the Federal Inland Revenue Service (FIRS) (Establishment) Act, 2007 which stipulates:
“Pursuant to Section 59(1) of this Act, there shall be established a Tax Appeal Tribunal (hereinafter referred to as “the Tribunal”) to exercise the jurisdiction, powers and authority conferred on it by or under this schedule.
The jurisdiction of the Tribunal to adjudicate on disputes and controversies arising from the provisions of the Companies Income Tax Act, Personal Income Tax Act, Petroleum Profit Tax Act, Value Added Tax Act, Capital Gains Tax Act and any other laws administer by the FIRS or other laws made or to be made from time to time by the National Assembly is delineated under paragraph 11(1) of the Fifth Schedule to the FIRS Act.
Pursuant to the powers of the Minister of Finance, Budget and National Planning to make rules prescribing the procedure to be followed in the conduct of appeals before the tribunal, the Tax Appeal Tribunal (TAT) (Procedure) Rules, 2021 was made. This Rule has a commencement date of 10 June, 2021 and has by its provisions revoked the erstwhile 2010 Tax Appeal Tribunal Rules.
My focus amongst the mouth-watering and commendable innovations contained in the provisions of the 2021 TAT Rules, is on Order 3 Rule 6(a) which states:
“For an Appeal against the Service or relevant tax authority under Rules 1 and 2 of this Order, the aggrieved person shall- (a) pay 50% of disputed amount into designated account by the Tribunal before hearing as security for prosecuting the appeal.”
(Underlining for emphasis)
Further to the above provisions, it is pertinent to state that the right of an aggrieved person to approach the Tax Appeal Tribunal is copiously provided for under paragraph 13 (1) and (2) of the Fifth Schedule to the FIRS Act, 2007 thus:
(1) A person aggrieved by an assessment or demand notice made upon him by the Service or aggrieved by any action or decision of the Service under the provisions of the tax laws referred to in paragraph 11, may appeal against such decision or assessment or demand notice within the period stipulated under this Schedule by the tribunal.
(2) An appeal under this Schedule shall be filed within a period of 30days from the date on which a copy of the order or decision which is being appealed against is made, or deemed to have been made by the Service and it shall be in such form and be accompanied by such fees as may be prescribed provided that the Tribunal may entertain an appeal after the expiry of the said 30days if it is satisfied that there was sufficient cause for the delay.
(Underlining for emphasis)
In addition to the above provisions, paragraph 15(7)(c) of the Fifth Schedule to the FIRS Act, 2007 states:
At the hearing of an appeal, if the representative of the Service proves to the satisfaction of the Tribunal hearing the appeal in the first instance that-
(c) it is expedient to require the appellant to pay an amount as security for prosecuting the appeal, the tribunal may adjourn the hearing of the appeal to any subsequent day or order the appellant to deposit with the service, before the day of the adjourned hearing, an amount, on account of the tax charged by the assessment under appeal, equal to the tax charged upon the appellant for the preceding year of assessment or one half of the tax charged by the assessment under appeal, which ever is lesser plus a sum equal to ten percent of the said deposit, and if the appellant fails to comply with the order, the assessment against which he has appealed shall be confirmed and the appellant shall have no right to appeal with respect to that assessment.
(Underlining for emphasis)
A community reading of the provision of paragraphs 13(1) and (2); 15(7)(c) of the Fifth Schedule to the FIRS Act, 2007 and Order 3 Rule 6(a) of the 2021 TAT rules have limited an aggrieved person’s right to Appeal As Of Right to 30 days from the date of the occurrence of the decision appealed against and Payment of 50% of the disputed sum as security or payment of 50% of the tax paid the previous year plus 10 percent mark-up as security before such appeal can be entertained by the Tribunal.
While Paragraph 15(7)(c) of the FIRS Act requires the tax authority to first prove to the satisfaction of the tribunal that it is expedient for the appellant to pay the security, Order 3 Rules 6(a) of the TAT Rules, 2021 does not make provisions for such.
It is clear that as it is, the Tribunal is now at liberty to pick and choose whether to order a blanket payment of 50% of the disputed sums as security contained in the 2021 TAT Rules or to order payment of 50% of the tax paid the previous year plus 10 percent mark-up as security contained in the FIRS Act.
This concerns played out in the recent cases of Multi Choice Nigeria V FIRS where the Nigerian subsidiary filed an appeal against an alleged tax liability of N1.8 trillion issued to it by the FIRS, and on 24 August 2021, the Tribunal relying on Paragraph 15 (7) Fifth Schedule of the FIRS Establishment Act, directed Multi Choice Nigeria to pay a security deposit for its appeal to be heard. The FIRS interpreted the ruling to mean that MultiChoice Nigeria should pay N900 billion (50% of the disputed assessment) before the appeal will be heard. The FIRS was relying on the provisions of the 2021 TAT Rules.
At the hearing on 23 September 2021, Multi Choice Nigeria argued that it had complied with the tribunal’s ruling and the provisions of paragraph 15 (7) of the FIRS Act via the payment of N8 billion in two tranches. The FIRS, however, urged the Tribunal to discontinue the hearing of the appeal and rule against the appellant having not complied with the directive to pay N900 billion i.e 50% of the N1.8 trillion tax assessment for the years under review.
The TAT on 20 October 2021 dismissed the FIRS’ objection to the appeal thus;
“It is obvious that the appellant has not only complied with the orders of this court but has also provided sufficient evidence before this tribunal that they are credible and ready to pursue this matter with all sense of responsibility and seriousness. It is only fair and just that they be given the privilege to do so,” ruled the tribunal.
The Tribunal herein rightly disagreed with the FIRS position that Multi Choice Nigeria was required to pay half of the assessment for all the years under review, and ruled that the FIRS Act explicitly says the “preceding year of assessment”, not “years.”
However, the same Tribunal twisted in its ruling delivered in Abuja on 26 October 2021, where it dismissed the appeal of MultiChoice Africa Holdings V. FIRS against an alleged $342million Value Added Tax bill given to it by the FIRS. The Tribunal upheld the objection of the FIRS to the appeal of Multi Choice Africa Holdings, that the company had neglected to comply with Order 3 Rule 6 of the TAT (Procedure) Rules, 2021 i.e. payment of 50% of $342million. This to my mind is nothing short of closing the doors of justice against aggrieved parties. The application of the onerous blanket condition to provide 50% of the disputed sum before an aggrieved party can approach the Tribunal is questionable as it will continue to prevent easy access to justice.
What comes to mind is whether the Minister of Finance, Budget and National Planning in exercise of her powers under paragraph 21 of the Fifth Schedule to the FIRS Act 2007, can by a secondary legislation i.e. the TAT Rules (2021), alter the provisions contained in an Act made by the National Assembly. See AFRIBANK (NIG) PLC V. AKWARA (2006) LPELR-199 (SC); Per Ikechi Francis Ogbuagu, JSC (Pp 41 Paras A-C).
"Rules of Court, are not as sacrosanct as statutory provisions of law. A rule of court, cannot confer jurisdiction. It only regulates the practice of the Court in the exercise of a power derived aliunde (from another source or from elsewhere) and does not confer power. See Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) 1 ANLR 663 and Cropper v. Smith (1883) 24 Ch. D. 305- per Brett, M.R Rules of Court, cannot override, Statutory provisions of the law. See Alhaji Edun v. Odun Community, Ado Family etc. (1980) 8-11 SC 103 at 124 - 127. Therefore, neither Practice Directions nor Rules of Court, can override Statutory Provisions."
Also, it is trite law that the court will always frown at any provision that tends to restrain/ abridge or inhibit a party’s rights to freely access the court to seek redress and all rules of court ought to aid in the cause of justice and not otherwise. See ASIEGBU V. ACCESS BANK & ORS 2016(LPELR-41056) CA:
"The rules of Court are made as aids to the Courts to help the course of justice and not masters of the Court. For the Courts to read the rules in the absolute without recourse to the justice of the cause will be making the Courts slavish to the rules and this clearly is not the reason for the enactment of the rules of Court. See Oduyemi v. Agbede (supra); UTC Ltd v. Pamotei (supra). "Per HELEN MORONKEJI OGUNWUMIJU, JCA (Pp 9 -10 Paras F- B)"
The dissenting opinion of Aderemi, J.S.C. in OJUKWU V. YAR’ADUA (2009) 12 NWLR (PT. 1154) 50 AT 192D-G further buttress my position on access to court. His Lordship held:
“Faced with the materials before us, I regret to say that to dismiss this appeal is to forever block the appellant from accessing justice. An inhibited accessibility by a citizen to [a] court of law to ventilate [his/her] real or imagined grievance is a hallmark of determining the degree of civilization of a country. Let is be said that the quest for justice is insatiable when it is realised that the great phenomenon called JUSTICE is not a one way traffic; not even a two way traffic; I beg to say that a court of law which is also a court of justice must always ensure that JUSTICE flowing from its sanctuary which, of course, must be in accordance with laws of the land, is not only for the plaintiff (the complainant) not even only for the defendant (the person complained against) but also for the larger society whose psyche is always affected, one way or the other, by any judicial pronouncement.”
(Underlining for emphasis.)
The Supreme Court reiterated In SPDC v. Agbara (2015) LPELR-25987(SC), the Supreme Court thus:
“It is settled law that a court of law will not allow the provisions of an enactment to be read in such a way to deny access to courts by citizens. Thus, it is not the intention of the law to deny any litigant access to justice.” (Underlining for emphasis.)
Flowing from the above, the mandatory provisions of Order 3(6)(a) through the use of the word ‘Shall’ will not only restrict the right of an aggrieved party to access the court, but also has the tendency of stifling the businesses of going concerns who are required to cough out as security, 50% of the sums sought to be challenged before their case can be heard.
There is need for the immediate amendment of the provisions of Order 3(6)(a) of the TAT Rules, 2021 in order to guarantee the rights of aggrieved parties to access the court without let or hindrance.
The TAT must also in a bid to manifestly dispense justice, stop the charade of the biblical unbeliever who is tossed around by every wind of doctrine.
 Olusegun MABAWONKU
 By implication, tax disputes arising from the provisions/application of the Finance Acts.
 Paragraph 21 of the Fifth Schedule to the Federal Inland Revenue Service (Establishment) Act, 2007
 Order 1 Rule 2 of the Tax Appeal Tribunal (Procedure) Rules, 2021.
 paragraph 15(7)(c) of the Fifth Schedule to the Federal Inland Revenue Service (Establishment Act) 2007