Jurisdiction of the Tax Appeal Tribunal vis-à-vis the Federal High Court by Deborah Majekodunmi
Abstract:
This paper examines the jurisdiction of the Tax Appeal Tribunal for a party to hear out it grievances before approaching the Federal High Court being a court of record. Court of superior records have held that the TAT being an administrative Tribunal serves as a condition precedent before Tax related matters is appealed upon at the Federal High Court.
INTRODUCTION
Jurisdiction can be defined as the power of a court to entertain a suit brought before it for adjudication. It is known to be the live wire of any suit, and where a Court has no jurisdiction, the case is dead on arrival and the entire proceedings is incompetent. It is without doubt, that Section 259 (b) 1999 Constitution of the Federal Republic of Nigeria (As Amended) created the Federal High Court to sit and hear matters pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation.
The 1999 Constitution of the Federal Republic of Nigeria (As Amended) is the grundnorm of the Nigeria Legal System upon which the Federal High Court was established to sit and hear matters pertaining to the taxation of Companies and businesses and every other law derives its legitimacy from the Constitution. The Constitution itself unequivocally declares its own supremacy and the inviolability of its provisions in Section 1(1) and (3) when it states thus;
“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria…If any other law is inconsistent with the provision of the Constitution, this Constitution shall prevail and that other law shall be to the extent of the inconsistency be void”
However, the passing into law of the Federal Inland Revenue Service Act, 2007 established the Tax Appeal Tribunal and vested it with the power to settle disputes and controversies arising from the Companies Income Tax Act, Personal Income Tax Act, Petroleum Profits Tax Act, Value Added Tax Act and Capital Gains Tax Act as seen in Section 59(2) Federal Inland Revenue Service Act, 2007.
As seen from the above, one can assume that the functions of the Tax Appeal Tribunal is similar to the functions of the Federal High Court in respect of adjudicating tax matters.
The question to be asked is does the Federal High Court oust the jurisdiction of the Tax Appeal Tribunal in the matter and vice versa? Note, that one of the fundamental element of jurisdiction is whether or not the case is before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
A case scenario is where Company A sues the Service for restriction on his account for non-compliance with payment of tax or an irregular assessment from the Service and initiates the suit before the Federal High Court, is the Federal High Court the appropriate Court to sit on the matter at the first instance or the tax appeal tribunal.
The function of the TAT is to adjudicate on all matters as stated in the Fifth Schedule relating to Companies Income Tax, Petroleum Profits Tax, Personal Income Tax, Capital Gains Tax, Value Added Tax, Stamp Duty, Taxes and Levies (Approved List for Collection) and any other law to be made by the National Assembly. A party who is aggrieved by an assessment is to appeal such an assessment at the TAT where it relates to the above stated. The Tribunal should be the place of first instance where parties hear out their grievances, the Service is also not exempted from approaching the Tribunal where it has grievances against a Company or person. A party who fails to approach the Tribunal but institutes the suit at the Federal High Court acts incompetently. Note that from the provisions of the FIRS Act, the Federal High Court acts as an appellate court in tax matters.
Appellate courts have also agreed with this view in numerous cases, in FIRS v. TSKJ Consrucoes Internacional Sociadale Unipersoal LDA (2017) LPELR- 42868 (CA) where the Court held that the Tax Appeal Tribunal is an administrative tax appeal tribunal and same is not on a concurrent jurisdiction with the Federal High Court nor can it be capable of usurping the jurisdiction of the Federal High Court. It serves as a condition precedent to the jurisdiction of the Federal High Court to entertain the suit.
In CNOOC Exploration and Production (Nig) Ltd & Anor v. NNPC & Anor (2017) LPELR-43800 (CA) where the Appellate Court held thus;
“I agree with the succinct judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I had the benefit of reading in draft and add that appeals from the Tax Appeal Tribunal normally go to the Federal High Court from which appeals lie to this Court in deserving cases vide Section 28 of the Federal High Court Act 2004 read with the provisions of the Federal High Court (Tax Appeals) Rules Cap. F12 Laws of the Federation 2004 and Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) showing per adventure that the Tax Appeal Tribunal has jurisdiction over tax related matters as adroitly made clear in the lead judgment which I hereby adopt as my judgment”
May I also bring it to your attention that filing of matters before the TAT is not nouveau, aggrieved parties have filed various matters before the Tax Appeal Tribunal where the Panel decided upon the matter. See Mckinsey & Company Nig Global Limited VS. Federal Inland Revenue Service-TAT/LZ/CIT/034/2018.
It is trite that where a Statute prescribes the procedure for instituting an action, the fulfillment of the procedure is a condition precedent to the exercise of the Court’s jurisdiction as jurisdiction is the very heart of any matter before a Court or Tribunal, and any proceedings conducted without jurisdiction is a nullity ab initio irrespective of how well the proceedings were conducted. An issue of jurisdiction can be raised at any stage of the proceedings and even for the first time at the Supreme Court. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693, Belgore JSC.
CONCLUSION
In light of the above, the Tax Appeal Tribunal should be the place of first recourse by an aggrieved person. The Federal High Court sits as an appellate Court on matters from the Tax Appeal Tribunal, the powers/jurisdiction of the Tax Appeal Tribunal cannot be ousted by the Federal High Court or a party as same is a creation of statute and binding on all. See Onyeanusi v. Miscellaneous Offences Tribunal (2002) LPELR-2066 (SC)
Where a party files a claim before the Federal High Court without appealing at the TAT, the entire proceedings at the Federal High Court is nullity, as the Court acted outside the scope of its jurisdiction in hearing the matter in the first instance and ousting the TAT, which serves as a condition precedent to hearing Tax related matters.
REFERENCES
1. 1999 Constitution of the Federal Republic of Nigeria (As Amended)
2. Federal Inland Revenue Service (Establishment) Act 2007
3. FIRS v. TSKJ Consrucoes Internacional Sociadale Unipersoal LDA (2017) LPELR-
42868 (CA)
4. CNOOC Exploration and Production (Nig) Ltd & Anor v. NNPC & Anor (2017)
LPELR-43800 (CA)
5. Mckinsey & Company Nig Global Limited VS. Federal Inland Revenue Service-
TAT/LZ/CIT/034/2018
6. Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244)
675 at 693
7. Onyeanusi v. Miscellaneous Offences Tribunal (2002) LPELR-2066 (SC)
