The Federal High Court [Federal Inland Revenue Service] Practice Directions, 2021 And Questions Of [Dis] Respect For Rule Of Law, Human Rights And Access To Justice

By Sylvester C. Udemezue

“Ultra vires” is a Latin Legal term translated (in English) to
“beyond the powers”. The term is used to describe an act which
requires legal authority or power but is then done/completed
outside of or without the requisite legal authority
(lexisnexis.co.uk). The act of a person
or authority, is said to be ultra vires when the person/authority
acts beyond the scope of the powers and purposes provided to him/it
by law. Ultra vires acts are generally void. (see: Communities
Economic Development Fund v. Canadian Pickles Corp., (1991)
CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil
Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal
authority is required in order to /make/enact a law or take certain
actions, any law made or action taken without any such enabling law
or outside or in excess of the powers granted by law is said to be
or to have been taken “ultra vires” and accordingly void and of no
effect. The opposite of ultra vires is “intra vires”, (translated
to “within the powers”), a term used to refer to an act done
under/within proper legal authority. An ultra vires act is going to
be totally void and it’ll not bind anyone; is not enforceable.
Besides, any person with requisite locus standi (legal standing)
may commence a legal action either for an injunction to restrain a
planned ultra vires act or to nullify an act taken or law made
ultra vires the person making the law or doing the act.

A June 14, 2021 news item in a popular online (news) media
platform in Nigeria, Thenigerialawyer, comes under the headline,
“50% Of Disputed Tax Amount To Be Paid Into Court Account” and
carries the following report, inter alia: “Anyone who intends to
challenge a tax assessment in court must pay 50 per cent of the
amount in dispute into an interest-yielding account of the Federal
High Court before the case can be heard.The new requirement is
contained in a recent practice direction issued by the Chief Judge,
Justice John Tsoho, under Order 57, Rule 3 of the Federal High
Court (Civil Procedure) Rules, 2019″. I have gone through a copy of
the Federal High Court (Federal Inland Revenue Service) Practice
Direction 2021, which was made on May 31, 2021to take effect on
June 01, 2021. In respect of applications or actions filed by the
Federal Inland Revenue Service (FIRS) to enforce payment of taxes
by an alleged defaulting taxable Person, Order V Rule 3 of the
Practice Directions provides as follows: “Where the Respondent
intends to challenge an assessment served on him, he shall pay half
of the assessed amount in an interest-yielding account of the
Federal High Court, pending the determination of the application”.
This and some other provisions of the said Practice Directions have
attracted mixed reactions from Nigeria’s legal community as well as
from stakeholders in the justice sector, tax law gurus and
litigation giants.The present commentary is a preliminary part of
my humble opinion on questions of legality, propriety or otherwise,
arising specifically in respect of the provisions of Order V Rule 3
of the new Practice Directions.

With due respect, the prescription in Order V Rule 3 of the
Practice Direction appears to be ultra vires the powers of the
distinguished Chief Judge (CJ) of the Federal High Court (FHC), and
therefore (I respectfully submit) may not stand in a court of law,
if challenged, on grounds of oppressiveness, illegality and
unconstitutionality. Meanwhile, I doubt some of the heads of our
courts and their advisors truly appreciate the exact limitations of
Practice Directions as a source of Civil or Criminal procedure. The
way I see it (unless I am wrong; after all, I am not all-knowing),
a Practice Direction does no more than provide guides on how to
comply with existing Rules of Court (Rules made by the person
issuing the Practice Direction), or on implementation of the rules
or any aspect thereof. In UNILAG v AIGORO b(184) 11 SC 152 at 159,
the Supreme Court of Nigeria defined Practice Direction as “a
direction given by the appropriate authority stating the way and
manner a particular rule of court should be complied with, observed
or obeyed”. In Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313 160 at 175,
the Court of Appeal stated thus: “A Practice Direction is a written
explanation or guideline on how to proceed in a particular area of
law or court…. Practice Directions have the force of law and
parties must adhere to it”. It could be seen from the above that a
practice direction is merely a supplemental protocol to rules of
civil and criminal procedure in the courts, a sort of device to
regulate minor procedural matters on matters already provided for
by existing Rules/law. (See: ;
NAA v Okoro (1995) 7 SCNJ 292 at 301). Besides, some advisory
pronouncements by courts of law, providing guides on practice and
procedure have also been equated or described as Practice
Directions (See Abubakar v Wada). See also Nwankwo v. Yar`adua
(2010) 12 NWLR (Pt 1209) 518 to appreciate the status of Practice
Direction in Election Cases as well as the effect of non-compliance
therewith.

Although Practice Directions are treated as law or as having the
force of law, they nevertheless come/rank last in the hierarchy of
laws in Nigeria (See Buhari v. INEC* (2008) 19 NWLR (pt 1120) 236
at 341-342). Further, Practice Directions lack the capacity to
establish a court or to make substantive provisions hitherto not
provided in any law. Further, it’s doubtful if a Practice Direction
can even make a new provision that is not already contained in an
existing law. It’s obvious from the pronouncement of the Supreme
Court in UNILAG v. AIGORO that a Practice Direction has no power to
introduce a new provision not contained in the Rules; cannot
introduce a provision inconsistent with the Rules (or with any law)
and cannot give provisions or explanations on a new subject not
contemplated by the Rules or other existing law.

Now, Order 57 of the Federal High Court (Civil Procedure) Rules,
2019 contains provisions on powers of the Chief Judge of the
Federal High Court to amend the Federal High Court (Civil
Procedure) Rules, 2019, and to issue practice
directions “towards the realization of speedy, just and effective
administration of justice”. The Order in its entirety, provides:
“1. Whenever additional provisions are made to these Rules or any
part thereof are amended or modified, the Chief Judge may issue
directives for addition, publication or reprint of supplements to
these Rules. 2. Whenever the Chief Judge makes amendment or
modification to these Rules it shall be sufficient to publish same
as supplemental provisions without the necessity of new body of
Rules except when necessary.

3. The Chief Judge shall have the power to issue
practice directions, protocols, directives and guidance towards the
realization of speedy, just and effective administration of
justice. Practice directions etc to be published. 4.
Such practice directions, protocols, directives and guidance shall
be published and be given effect towards the realization of the
fundamental objective of these Rules”.

From the above provisions, it’s doubtful there is any (enabling)
legal justification for the Chief Judge (CJ) of the FHC to make
such provisions as he is reported to have made in the Practice
Direction presently under consideration. The powers of the CJ of
the FHC to make Practice Directions is exercisable but only
“towards the realization of speedy, just and effective
administration of justice”. This is clear from the wording of Order
57 Rule 3 reportedly relied upon by His Lordship to issue the
Federal High Court (Federal Inland Revenue Service) Practice
Direction, 2021. Respectfully, it is difficult to see how the
provision of Order V Rule 3 of the Practice Direction (requiring a
person challenging a tax assessment imposed by the FIRS, to deposit
50 percent of the tax as assessed by the FIRS) can be reasonably
described as a provision made “towards the realization of speedy,
just and effective administration of justice”. Also doubtful is
whether that particular provision (of Order V Rule 3) falls within
the matters with respect to which the CJ of the FHC may make
Practice Directions. Therefore (it’s respectfully so submitted),
His Lordship lacks powers to make such a new or substantive
provision in a Practice Direction.

Again, note that, in making the Practice Direction, the CJ did
not purport to be relying on Order 57 Rule 2 of the FHC (Civil
Procedure) Rules, 2019 relating to the power of the CJ of the FHC
to amend the Rules. Even if he did, the argument could have been
raised that there is a laid down Procedure for amending the Rules
of Court, if that’s what His Lordship had in mind (although he
doesn’t say so). In addition, there are other questions which I
doubt my Lord, the Hon. CJ of the FHC, had adverted his mind to at
the time he was drafting/signing this particular Practice
Direction; they’re questions bordering on fairness, equity and the
need to show respect for fundamental rights of litigants coming
before a court of law. Examples: is it not unfair to compel a
person (who has denied liability in respect of an assessed tax, or
who is disputing a tax assessment) to deposit 50 percent of the
amount of the assessed tax into the Registry of the FHC? Does such
not amount to punishing the affected person even before his
liability is established in court? (See ANAECHI v. INEC) Does His
Lordship not consider that such a unilateral assessment done by the
FIRS might have been undertaken (as is almost always the case)
arbitrarily, sometimes without properly applying relevant laws.
Besides, the assessment is always (as I have noted) undertaken by
the FIRS without carrying along or consulting with the affected
person (the taxable person); the assessment is an entirely a
one-sided, arbitrary assessment, which more often than not, neither
takes into account the interest of the taxable person, nor tries to
balance the interest of the both parties. How fair or evenhanded is
such a Practice Direction that provides that a court of law could,
without first hearing from the challenger’s own side, insist that
the person challenging or disputing a tax liability must pay half
of the assessed sum (the sun in dispute) as a mandatory condition
precedent to entertaining/determining the person’s opposition to
the assessed amount or manner of assessment (which the challenger
might even see as oppressive or tyrannical on the part of the
FIRS?)? Additionally, how would such a draconian and inhibitive
provision promote or encourage access to justice.

Access to justice means being “treated fairly according to the
law and if you are not treated fairly being able to get appropriate
redress…. It means access to ombudsmen, advice agencies and the
police law. It means public authorities behaving properly. It means
everyone having some basic understanding of their rights”
[www.guardian.com]. Access to justice has
been described as a human right that must respected and could be
enforced. According to International and European human rights law,
EU Member States must guarantee everyone the right to go to court,
or to an alternative dispute resolution body, and to obtain a
remedy when their rights are violated. This is the right of access
to justice (see: “Access to Justice in Europe” published by the
European Union Agency for Fundamental Rights [http://fra.europa.eu^[1]]. Further on this
paragraphs 14 and 15 of the the United Nations’ Declaration of the
High-level Meeting on the Rule of Law recognizes that access to
justice is a basic principle of the rule of law in the absence of
which people are unable to have their voice heard, exercise their
rights, challenge discrimination or hold decision-makers
accountable. The Declaration emphasizes the right of equal access
to justice for all, including members of vulnerable groups, and
reaffirmed the commitment of Member States to taking all necessary
steps to provide fair, transparent, effective, non-discriminatory
and accountable services that promote access to justice for all.
Paragraph 13 of the Declaration stresses that delivery of justice
should be impartial and non-discriminatory and highlighted the
independence of the judicial system, together with its impartiality
and integrity, as an essential prerequisite for upholding the rule
of law and ensuring that there is no discrimination in the
administration of justice. (See: “Access to Justice”published by
the United Nations and the Rule of Law  [https://www.un.org^[2]].

Nigeria is a member-State of the United Nations. Is Order V Rule
3 of the Practice Direction not a discouraging factor to Access to
Justice and therefore a violation of the concept of access to
justice? In as much as one encourages and applauds any law or
device aimed to ensure prompt payment of lawfully imposed taxes in
Nigeria, or to penalize non-compliance with extant tax laws, one
must not fail or neglect the need for strict observance of the
principles of fairness and rule of law in so doing.

Another issue is whether the provisions of Order V Rule 3 of the
Federal High Court (Federal Inland Revenue Service) Practice
Direction, 2021 are not a direct derogation from or negation of,
the mandatory requirements of “fair hearing” and “impartiality” as
required by section 36(1) of the Constitution of the Federal
Republic of Nigeria, 1999, which provides as follows: “In the
determination of his civil rights and obligations, including any
question or determination by or against any government or
authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other
tribunal established by law and constituted in such manner as to
secure its independence and impartiality”. Section 1(3) of the
Constitution provides that “if any other law is inconsistent with
the provisions of this Constitution, this Constitution shall
prevail, and that other law shall, to the extent of the
inconsistency, be void”. Moreover, the Supreme Court of Nigeria has
said (see the case of Buhari v. INEC) that _”in the hierarchy of
our jurisprudence, Practice Direction comes last in terms of
authority. In the area of conflict between the Constitution and
Practice Directions, the former will prevail. If there is a
conflict between an enabling statute an Practice Directions, the
former will prevail. Where there is a conflict between enabling
Rules of Court and Practice Directions, the enabling Rules of Court
will prevail”.

What’s more? In a paper titled, “When the
Making of a Tax is an Abuse of Rights”, M. T. Abdulrazaq (Professor
of Taxation, Lagos State University, Nigeria (LASU); Provost, CITN
Tax Academy; and Tax Partner at Nolands Nigeria Professional
Services) condemned as a violation of right and tyranny, what he
called “taxation without representation”. The erudite
Prof wrote,
‘Our legislators must respect the principle of legality on the
basis of the prescription of “no taxation without representation”
that was introduced in the Magna Carta in 1215. They must
continually obtain our consent and act as a democratic guarantee
against arbitrary taxation by the government. They must have
imprinted on their mind the words of James Otis that “taxation
without representation is tyranny”’. And reacting specifically to
the Practice Direction currently under discussion, the learned
professor had this to say (on the Legal Practice Discourse (LPD)
Forum on 13 June 2021): “Practice Directions – sections 2,3 and 5
are objectionable as they seek to amend CITA [Companies Income Tax
Act], sections 96, 60, 64, 86, 69, 76 and 77.”

Earlier on, in my own article titled, “The Legal Implications of
the Requirement for ‘Two-Thirds Majority Vote’ in Relation to
Removal of the Head of a Legislative House in Nigeria” (see:
dnllegalandstyle. August 18, 2018), I had tried to emphasize the
need for those occupying public positions to adher at all times and
strictly, with tenets of Rule of Law and due process:
“…. it is expected that fairness, even-handedness and above all
respect for rule of law would characterize the behaviour and
standards of all men who find themselves in public offices. This
was the position of IBRAHIM MOHAMMED MUSA SAULAWA, JCA in a
judgment delivered on January 4, 2007, in APPEAL NO: CA/PH/161/99
in the case of WHYTE V KWANDE… in … CHIBUIKE AMAECHI v. INEC & 2
ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordships,
PIUS OLAYIWOLA ADEREMI, JSC had advised thus: ‘in all countries of
the world which subscribe to and operate under the rule of law, all
actions of both private and public persons are always adapted to
the laws of the land. We ought to allow this time-honoured
principle to sink well into our heads and hearts.’… In his book, 10
Steps to a More Tolerant Australia, Donald Horne (1921-2005) wrote:
‘the ideal of the rule of law, along with equality under the law,
is one of the bases of tolerance. It means that, one way or
another, governments themselves must act in accordance with the
law’”.

Bottomline
However well-intentioned a law, policy or an action of a person or
a public Institution is, if such law/policy/action is undertaken
without adhering to due process of law, or is done without any
supporting enabling law or in abuse of power, the law/policy/action
itself becomes null and of no effect whatsoever (to the extent of
its inconsistency with extant law or to the extent of its violation
of due process); anything done/made without legal foundation must
fail for being void ab initio. Accordingly, it’s my humble view
that the provisions of the Federal High Court (FIRS) Practice
Direction, 2021, issued on May 31, 2021, by the Chief Judge of the
Federal High Court of Nigeria (to take effect on June 01, 2021), to
the extent it purportedly requires that any person challenging (at
the Federal High Court) an FIRS-conducted-or-arbitrarily-imposed
tax assessment in Nigeria must as a mandatory condition precedent
to entertainment of his opposition to the assessment, to pay 50
percent of the amount of the assessment into “an interest-yielding
account of the FHC before the case can be heard”, is oppressive,
inequitable, unfair, illegal and unconstitutional, having been made
ultra vires and without taking into consideration certain
fundamental requirements of fair hearing, human right, access to
justice and fairness. The power given to His Lordship to make
Practice Directions in deserving circumstances does not authorize
my Lord to issue Practice Directions that are bereft of legal
foundations or that are susceptible to being reasonably interpreted
as oppressive, or supportive of tyranny or of laying foundations
for brazen violation of the fundamental rights of citizens or
denial of citizen’s right to access to justice. It’s my candid
proposition that the said FHC(FIRS) Practice Direction, 2021 be
immediately withdrawn and that the offending provisions be deleted
after which another Practice Direction would be reissuing on the
subject. Peter Drucker said, “Efficiency is doing the thing right.
Effectiveness is doing the right thing”. Doing the right thing is
always the right thing to do. A law or subsidiary law that fails to
do the right thing usually (that’s, when challenged) doesn’t get
the right treatment in court. It is additionally, finally,
suggested that in future, all stakeholders (including especially
legal luminaries in the field) should be consulted or carried along
prior to, and in the process of law-writing and law-making, whether
it be for purposes of enacting principal or of issuing subsidiary
legislation. Test ideas in the marketplace. We learn from hearing a
range of perspectives. Consultation helps engender the support
decisions need to be successfully implemented. Keith Waterhouse
defines “consultation” thus: “A consultation process is what some
authority sets in motion preparatory to doing what it intended all
along”. There is no greater support in law-making than
consultation. Consultation is a major part of doing the right
thing. Ronald Reagan (40th president of the United States of
America) once said, “the greatest leader[/man] is not necessarily
the one who does the greatest things. He is the one that gets the
people to do the greatest things”.

Respectfully,
Sylvester C. Udemezue (udems).
08109024556.
udemsyl@gmail.com. (14 June 2021)

By Sylvester C. Udemezue

“Ultra vires” is a Latin Legal term translated (in English) to
“beyond the powers”. The term is used to describe an act which
requires legal authority or power but is then done/completed
outside of or without the requisite legal authority
(lexisnexis.co.uk). The act of a person
or authority, is said to be ultra vires when the person/authority
acts beyond the scope of the powers and purposes provided to him/it
by law. Ultra vires acts are generally void. (see: Communities
Economic Development Fund v. Canadian Pickles Corp., (1991)
CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil
Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal
authority is required in order to /make/enact a law or take certain
actions, any law made or action taken without any such enabling law
or outside or in excess of the powers granted by law is said to be
or to have been taken “ultra vires” and accordingly void and of no
effect. The opposite of ultra vires is “intra vires”, (translated
to “within the powers”), a term used to refer to an act done
under/within proper legal authority. An ultra vires act is going to
be totally void and it’ll not bind anyone; is not enforceable.
Besides, any person with requisite locus standi (legal standing)
may commence a legal action either for an injunction to restrain a
planned ultra vires act or to nullify an act taken or law made
ultra vires the person making the law or doing the act.

A June 14, 2021 news item in a popular online (news) media
platform in Nigeria, Thenigerialawyer, comes under the headline,
“50% Of Disputed Tax Amount To Be Paid Into Court Account” and
carries the following report, inter alia: “Anyone who intends to
challenge a tax assessment in court must pay 50 per cent of the
amount in dispute into an interest-yielding account of the Federal
High Court before the case can be heard.The new requirement is
contained in a recent practice direction issued by the Chief Judge,
Justice John Tsoho, under Order 57, Rule 3 of the Federal High
Court (Civil Procedure) Rules, 2019″. I have gone through a copy of
the Federal High Court (Federal Inland Revenue Service) Practice
Direction 2021, which was made on May 31, 2021to take effect on
June 01, 2021. In respect of applications or actions filed by the
Federal Inland Revenue Service (FIRS) to enforce payment of taxes
by an alleged defaulting taxable Person, Order V Rule 3 of the
Practice Directions provides as follows: “Where the Respondent
intends to challenge an assessment served on him, he shall pay half
of the assessed amount in an interest-yielding account of the
Federal High Court, pending the determination of the application”.
This and some other provisions of the said Practice Directions have
attracted mixed reactions from Nigeria’s legal community as well as
from stakeholders in the justice sector, tax law gurus and
litigation giants.The present commentary is a preliminary part of
my humble opinion on questions of legality, propriety or otherwise,
arising specifically in respect of the provisions of Order V Rule 3
of the new Practice Directions.

With due respect, the prescription in Order V Rule 3 of the
Practice Direction appears to be ultra vires the powers of the
distinguished Chief Judge (CJ) of the Federal High Court (FHC), and
therefore (I respectfully submit) may not stand in a court of law,
if challenged, on grounds of oppressiveness, illegality and
unconstitutionality. Meanwhile, I doubt some of the heads of our
courts and their advisors truly appreciate the exact limitations of
Practice Directions as a source of Civil or Criminal procedure. The
way I see it (unless I am wrong; after all, I am not all-knowing),
a Practice Direction does no more than provide guides on how to
comply with existing Rules of Court (Rules made by the person
issuing the Practice Direction), or on implementation of the rules
or any aspect thereof. In UNILAG v AIGORO b(184) 11 SC 152 at 159,
the Supreme Court of Nigeria defined Practice Direction as “a
direction given by the appropriate authority stating the way and
manner a particular rule of court should be complied with, observed
or obeyed”. In Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313 160 at 175,
the Court of Appeal stated thus: “A Practice Direction is a written
explanation or guideline on how to proceed in a particular area of
law or court…. Practice Directions have the force of law and
parties must adhere to it”. It could be seen from the above that a
practice direction is merely a supplemental protocol to rules of
civil and criminal procedure in the courts, a sort of device to
regulate minor procedural matters on matters already provided for
by existing Rules/law. (See: ;
NAA v Okoro (1995) 7 SCNJ 292 at 301). Besides, some advisory
pronouncements by courts of law, providing guides on practice and
procedure have also been equated or described as Practice
Directions (See Abubakar v Wada). See also Nwankwo v. Yar`adua
(2010) 12 NWLR (Pt 1209) 518 to appreciate the status of Practice
Direction in Election Cases as well as the effect of non-compliance
therewith.

Although Practice Directions are treated as law or as having the
force of law, they nevertheless come/rank last in the hierarchy of
laws in Nigeria (See Buhari v. INEC* (2008) 19 NWLR (pt 1120) 236
at 341-342). Further, Practice Directions lack the capacity to
establish a court or to make substantive provisions hitherto not
provided in any law. Further, it’s doubtful if a Practice Direction
can even make a new provision that is not already contained in an
existing law. It’s obvious from the pronouncement of the Supreme
Court in UNILAG v. AIGORO that a Practice Direction has no power to
introduce a new provision not contained in the Rules; cannot
introduce a provision inconsistent with the Rules (or with any law)
and cannot give provisions or explanations on a new subject not
contemplated by the Rules or other existing law.

Now, Order 57 of the Federal High Court (Civil Procedure) Rules,
2019 contains provisions on powers of the Chief Judge of the
Federal High Court to amend the Federal High Court (Civil
Procedure) Rules, 2019, and to issue practice
directions “towards the realization of speedy, just and effective
administration of justice”. The Order in its entirety, provides:
“1. Whenever additional provisions are made to these Rules or any
part thereof are amended or modified, the Chief Judge may issue
directives for addition, publication or reprint of supplements to
these Rules. 2. Whenever the Chief Judge makes amendment or
modification to these Rules it shall be sufficient to publish same
as supplemental provisions without the necessity of new body of
Rules except when necessary.

3. The Chief Judge shall have the power to issue
practice directions, protocols, directives and guidance towards the
realization of speedy, just and effective administration of
justice. Practice directions etc to be published. 4.
Such practice directions, protocols, directives and guidance shall
be published and be given effect towards the realization of the
fundamental objective of these Rules”.

From the above provisions, it’s doubtful there is any (enabling)
legal justification for the Chief Judge (CJ) of the FHC to make
such provisions as he is reported to have made in the Practice
Direction presently under consideration. The powers of the CJ of
the FHC to make Practice Directions is exercisable but only
“towards the realization of speedy, just and effective
administration of justice”. This is clear from the wording of Order
57 Rule 3 reportedly relied upon by His Lordship to issue the
Federal High Court (Federal Inland Revenue Service) Practice
Direction, 2021. Respectfully, it is difficult to see how the
provision of Order V Rule 3 of the Practice Direction (requiring a
person challenging a tax assessment imposed by the FIRS, to deposit
50 percent of the tax as assessed by the FIRS) can be reasonably
described as a provision made “towards the realization of speedy,
just and effective administration of justice”. Also doubtful is
whether that particular provision (of Order V Rule 3) falls within
the matters with respect to which the CJ of the FHC may make
Practice Directions. Therefore (it’s respectfully so submitted),
His Lordship lacks powers to make such a new or substantive
provision in a Practice Direction.

Again, note that, in making the Practice Direction, the CJ did
not purport to be relying on Order 57 Rule 2 of the FHC (Civil
Procedure) Rules, 2019 relating to the power of the CJ of the FHC
to amend the Rules. Even if he did, the argument could have been
raised that there is a laid down Procedure for amending the Rules
of Court, if that’s what His Lordship had in mind (although he
doesn’t say so). In addition, there are other questions which I
doubt my Lord, the Hon. CJ of the FHC, had adverted his mind to at
the time he was drafting/signing this particular Practice
Direction; they’re questions bordering on fairness, equity and the
need to show respect for fundamental rights of litigants coming
before a court of law. Examples: is it not unfair to compel a
person (who has denied liability in respect of an assessed tax, or
who is disputing a tax assessment) to deposit 50 percent of the
amount of the assessed tax into the Registry of the FHC? Does such
not amount to punishing the affected person even before his
liability is established in court? (See ANAECHI v. INEC) Does His
Lordship not consider that such a unilateral assessment done by the
FIRS might have been undertaken (as is almost always the case)
arbitrarily, sometimes without properly applying relevant laws.
Besides, the assessment is always (as I have noted) undertaken by
the FIRS without carrying along or consulting with the affected
person (the taxable person); the assessment is an entirely a
one-sided, arbitrary assessment, which more often than not, neither
takes into account the interest of the taxable person, nor tries to
balance the interest of the both parties. How fair or evenhanded is
such a Practice Direction that provides that a court of law could,
without first hearing from the challenger’s own side, insist that
the person challenging or disputing a tax liability must pay half
of the assessed sum (the sun in dispute) as a mandatory condition
precedent to entertaining/determining the person’s opposition to
the assessed amount or manner of assessment (which the challenger
might even see as oppressive or tyrannical on the part of the
FIRS?)? Additionally, how would such a draconian and inhibitive
provision promote or encourage access to justice.

Access to justice means being “treated fairly according to the
law and if you are not treated fairly being able to get appropriate
redress…. It means access to ombudsmen, advice agencies and the
police law. It means public authorities behaving properly. It means
everyone having some basic understanding of their rights”
[www.guardian.com]. Access to justice has
been described as a human right that must respected and could be
enforced. According to International and European human rights law,
EU Member States must guarantee everyone the right to go to court,
or to an alternative dispute resolution body, and to obtain a
remedy when their rights are violated. This is the right of access
to justice (see: “Access to Justice in Europe” published by the
European Union Agency for Fundamental Rights [http://fra.europa.eu^[1]]. Further on this
paragraphs 14 and 15 of the the United Nations’ Declaration of the
High-level Meeting on the Rule of Law recognizes that access to
justice is a basic principle of the rule of law in the absence of
which people are unable to have their voice heard, exercise their
rights, challenge discrimination or hold decision-makers
accountable. The Declaration emphasizes the right of equal access
to justice for all, including members of vulnerable groups, and
reaffirmed the commitment of Member States to taking all necessary
steps to provide fair, transparent, effective, non-discriminatory
and accountable services that promote access to justice for all.
Paragraph 13 of the Declaration stresses that delivery of justice
should be impartial and non-discriminatory and highlighted the
independence of the judicial system, together with its impartiality
and integrity, as an essential prerequisite for upholding the rule
of law and ensuring that there is no discrimination in the
administration of justice. (See: “Access to Justice”published by
the United Nations and the Rule of Law  [https://www.un.org^[2]].

Nigeria is a member-State of the United Nations. Is Order V Rule
3 of the Practice Direction not a discouraging factor to Access to
Justice and therefore a violation of the concept of access to
justice? In as much as one encourages and applauds any law or
device aimed to ensure prompt payment of lawfully imposed taxes in
Nigeria, or to penalize non-compliance with extant tax laws, one
must not fail or neglect the need for strict observance of the
principles of fairness and rule of law in so doing.

Another issue is whether the provisions of Order V Rule 3 of the
Federal High Court (Federal Inland Revenue Service) Practice
Direction, 2021 are not a direct derogation from or negation of,
the mandatory requirements of “fair hearing” and “impartiality” as
required by section 36(1) of the Constitution of the Federal
Republic of Nigeria, 1999, which provides as follows: “In the
determination of his civil rights and obligations, including any
question or determination by or against any government or
authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other
tribunal established by law and constituted in such manner as to
secure its independence and impartiality”. Section 1(3) of the
Constitution provides that “if any other law is inconsistent with
the provisions of this Constitution, this Constitution shall
prevail, and that other law shall, to the extent of the
inconsistency, be void”. Moreover, the Supreme Court of Nigeria has
said (see the case of Buhari v. INEC) that _”in the hierarchy of
our jurisprudence, Practice Direction comes last in terms of
authority. In the area of conflict between the Constitution and
Practice Directions, the former will prevail. If there is a
conflict between an enabling statute an Practice Directions, the
former will prevail. Where there is a conflict between enabling
Rules of Court and Practice Directions, the enabling Rules of Court
will prevail”.

What’s more? In a paper titled, “When the
Making of a Tax is an Abuse of Rights”, M. T. Abdulrazaq (Professor
of Taxation, Lagos State University, Nigeria (LASU); Provost, CITN
Tax Academy; and Tax Partner at Nolands Nigeria Professional
Services) condemned as a violation of right and tyranny, what he
called “taxation without representation”. The erudite
Prof wrote,
‘Our legislators must respect the principle of legality on the
basis of the prescription of “no taxation without representation”
that was introduced in the Magna Carta in 1215. They must
continually obtain our consent and act as a democratic guarantee
against arbitrary taxation by the government. They must have
imprinted on their mind the words of James Otis that “taxation
without representation is tyranny”’. And reacting specifically to
the Practice Direction currently under discussion, the learned
professor had this to say (on the Legal Practice Discourse (LPD)
Forum on 13 June 2021): “Practice Directions – sections 2,3 and 5
are objectionable as they seek to amend CITA [Companies Income Tax
Act], sections 96, 60, 64, 86, 69, 76 and 77.”

Earlier on, in my own article titled, “The Legal Implications of
the Requirement for ‘Two-Thirds Majority Vote’ in Relation to
Removal of the Head of a Legislative House in Nigeria” (see:
dnllegalandstyle. August 18, 2018), I had tried to emphasize the
need for those occupying public positions to adher at all times and
strictly, with tenets of Rule of Law and due process:
“…. it is expected that fairness, even-handedness and above all
respect for rule of law would characterize the behaviour and
standards of all men who find themselves in public offices. This
was the position of IBRAHIM MOHAMMED MUSA SAULAWA, JCA in a
judgment delivered on January 4, 2007, in APPEAL NO: CA/PH/161/99
in the case of WHYTE V KWANDE… in … CHIBUIKE AMAECHI v. INEC & 2
ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordships,
PIUS OLAYIWOLA ADEREMI, JSC had advised thus: ‘in all countries of
the world which subscribe to and operate under the rule of law, all
actions of both private and public persons are always adapted to
the laws of the land. We ought to allow this time-honoured
principle to sink well into our heads and hearts.’… In his book, 10
Steps to a More Tolerant Australia, Donald Horne (1921-2005) wrote:
‘the ideal of the rule of law, along with equality under the law,
is one of the bases of tolerance. It means that, one way or
another, governments themselves must act in accordance with the
law’”.

Bottomline
However well-intentioned a law, policy or an action of a person or
a public Institution is, if such law/policy/action is undertaken
without adhering to due process of law, or is done without any
supporting enabling law or in abuse of power, the law/policy/action
itself becomes null and of no effect whatsoever (to the extent of
its inconsistency with extant law or to the extent of its violation
of due process); anything done/made without legal foundation must
fail for being void ab initio. Accordingly, it’s my humble view
that the provisions of the Federal High Court (FIRS) Practice
Direction, 2021, issued on May 31, 2021, by the Chief Judge of the
Federal High Court of Nigeria (to take effect on June 01, 2021), to
the extent it purportedly requires that any person challenging (at
the Federal High Court) an FIRS-conducted-or-arbitrarily-imposed
tax assessment in Nigeria must as a mandatory condition precedent
to entertainment of his opposition to the assessment, to pay 50
percent of the amount of the assessment into “an interest-yielding
account of the FHC before the case can be heard”, is oppressive,
inequitable, unfair, illegal and unconstitutional, having been made
ultra vires and without taking into consideration certain
fundamental requirements of fair hearing, human right, access to
justice and fairness. The power given to His Lordship to make
Practice Directions in deserving circumstances does not authorize
my Lord to issue Practice Directions that are bereft of legal
foundations or that are susceptible to being reasonably interpreted
as oppressive, or supportive of tyranny or of laying foundations
for brazen violation of the fundamental rights of citizens or
denial of citizen’s right to access to justice. It’s my candid
proposition that the said FHC(FIRS) Practice Direction, 2021 be
immediately withdrawn and that the offending provisions be deleted
after which another Practice Direction would be reissuing on the
subject. Peter Drucker said, “Efficiency is doing the thing right.
Effectiveness is doing the right thing”. Doing the right thing is
always the right thing to do. A law or subsidiary law that fails to
do the right thing usually (that’s, when challenged) doesn’t get
the right treatment in court. It is additionally, finally,
suggested that in future, all stakeholders (including especially
legal luminaries in the field) should be consulted or carried along
prior to, and in the process of law-writing and law-making, whether
it be for purposes of enacting principal or of issuing subsidiary
legislation. Test ideas in the marketplace. We learn from hearing a
range of perspectives. Consultation helps engender the support
decisions need to be successfully implemented. Keith Waterhouse
defines “consultation” thus: “A consultation process is what some
authority sets in motion preparatory to doing what it intended all
along”. There is no greater support in law-making than
consultation. Consultation is a major part of doing the right
thing. Ronald Reagan (40th president of the United States of
America) once said, “the greatest leader[/man] is not necessarily
the one who does the greatest things. He is the one that gets the
people to do the greatest things”.

Respectfully,
Sylvester C. Udemezue (udems).
08109024556.
udemsyl@gmail.com. (14 June 2021)