Just of recent, I was reading through the Official Gazette of the Federal Capital Territory Internal Revenue Service Act, 2015-herein after referred to as the FCTIRSA- I was very surprised that the Act delegates judicial powers and or functions of either sanctions or to hear appeals from the decisions of the Tax Appeal Committee set up under the Act to the Federal High Court-herein after referred to as FHC- and to carry out some other functions under the Act.
I have observed that such delegation of functions to the FHC, considering the law that FCT is just like States of the Federation in their respective status, is a form of legislative recklessness and carelessness, which requires amendment of the FCTIRSA with immediate effect, considering the implications of the FCTIRS not having a court of law to adjudicate its legal issues, hence, the Act might just be like a toothless bulldog.
First and foremost, section 35 of the FCTIRS provides as follows while delegating to the FHC ‘(1) Notwithstanding the power conferred on the relevant revenue authority for the enforcement of payment of revenue, if payment has become due and a demand notice has, in accordance with the provisions of the relevant law, been served on the chargeable person or his agent, and payment is not made within the time limited by the demand notice, the Service or other relevant revenue authority may, for the purpose of enforcing payment of the amount due, distrain— (a) upon the goods, chattels or other properties movable, the person liable to pay the tax outstanding ; and (b) upon all machinery, plant, tools, vehicles, animals and effects in the possession, use or found on the premise or on the land of the person. (2) The authority to distrain under this section shall be in such as the relevant revenue authority may direct and that authority shall be sufficient warrant and authority to levy by distress the amount of revenue due. (3) For the purpose of levying any distrain, under this section, an officer duly authorized by the Chairman of the Board may apply to a Judge of the Federal High Court sitting in Chambers under oath for the issue of a warrant under this Section. (4) A judge of the Federal High Court sitting in Chambers may authorize such officer, referred to in sub-section (3) of this section, in writing to execute any warrant of distrain and, if necessary, break open any building or place in the daytime for the purpose of levying such distrain and he may call to his assistance any police officer and it shall be the duty of any police office when so required to aid and assist in the execution of any warrant of distrain and in levying the distrain. (5) Things distrained under this section may, at the expense of the defaulter, be kept for 14 days and if at the end of this period the amount due in respect of the revenue, cost and charges of and incidental to the distrain are not paid, they may, subject to sub-section (6) of this section, be sold at any time. (6) Out of the proceeds of a sale under this section, the cost of charges of and incidental to the sale and keeping of the distrain and disposal thereunder, shall be payable to the defaulter on demand being made by him or on his behalf within one year of the date of the sale or shall be forfeited. (7) Nothing in this section shall be construed as to authorize the sale of an immovable property without an order of a Federal High Court, made upon application in such form as may be prescribed by the rules of court. (8) In exercise of the power of distraint conferred by this section, the person to whom the authority is granted under sub section (4) of this section may distrain upon all goods chattels and effects belonging to the debtor wherever the same may be found in Nigeria.’. (Underlined words are mine for emphasis).
Furthermore, section 55 of the Act also provides for the powers of the FHC on Appellate matters against the decisions of the Tax Appeal Committee. Also, section 85 of the Act has defined Court to mean the Federal High Court.
With due respect to the legislature, that is, the National Assembly that made this Act, the High Court of the Federal Capital Territory- Abuja ought to have been the Court with jurisdiction on the FCT Tax Matters considering the status of the FCTIRSA as an equivalent of a State law notwithstanding that the Act was made by the National Assembly, the National Assembly having made the tax law for the FCT in this respect as a House of Assembly of the FCT, considering the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), especially sections: 299, 300, 301 and 302 of the Constitution.
Furthermore, what is more important to emphasize here is that though, the National Assembly has the legislative House of Assembly’s legislative powers over the FCT, it cannot legislate on the FHC by assigning or delegating FCT matters to it, rather, the High Court of FCT is the appropriate Court with such jurisdiction. More so, section 251 of the Constitution has conferred the FHC with exclusive jurisdiction in both civil and criminal matters as contained in that section, the FCTIRSA being a State law, cannot delegate functions and or powers to the FHC. Also, it is unlawful and unconstitutional for a State House of Assembly to delegate any function to the FHC and that same unconstitutionality is exactly what the National Assembly has just done with the FCTIRSA.
Furthermore, there are in this situation, some legal issues such as: the FHC being delegated functions of which it lacks jurisdiction; and there is an issue of the National Assembly delegating powers and or functions to the FHC without lawful authority under the Constitution to do so. Now, in my humble opinion, there are legal implications. It means that anything under the FCTIRSA that the FHC is called upon to do will make the FHC to lack jurisdiction to hear such matter. Also, the High Court of the FCT cannot be approached because the FCTIRSA never confers any power or function on it and it is not even recognised by the FCTIRSA. So, how then will those functions be performed? Which court will perform them?! These are some implications under the Act. This will also mean that no defaulter can be sanctioned unless and until the Act is amended to confer jurisdiction on the appropriate Court which ought to be the High Court of the FCT.
Finally, I understand that the legislators are humans and so, they make errors and there are procedures for correcting legislative errors as in this case. I therefore call on the legislators to do the best in the case by amending this error of in-appropriate delegation of powers and or functions with the highest urgency that it deserves in the interest of the public and that of the justice, except there is a correct version of the Gazette different from the one that I read, which I would be glad to be afforded by the reader, with due respect.
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