The Federal High Court of Nigeria, through the Chief Judge, Honourable Justice John Terhemba Tsoho, recently issued Practice Directions on matters pertaining to or arising from tax issues involving the Federal Inland Revenue Service (FIRS). The Practice Directions, titled the Federal High Court (Federal Inland Revenue Service) Practice Directions, became operative on the 1st of June, 2021.
The objectives of this new FIRS Practice Directions are: to ensure effective case management and expeditious determination of tax related matters, encourage settlement of tax debts or liabilities between disputing parties, provide directions on applications from the FIRS, and promote the use of electronic filing and service systems and proceedings in tax related matters.1 The Directions apply to both civil and criminal tax related cases before the Federal High Court except as directed by the Chief Judge of the Federal High Court.2
The Directions have introduced a few innovations, most notable of which is the provision enabling the Federal Inland Revenue Service (FIRS) to file an application for an interim order of forfeiture of immovable property; an interim order of freezing of a bank account; an ex- parte order for the FIRS to have access to taxpayer’s books, documents, servers, billing systems, bank accounts, including those stored in a computer in digital, magnetic, optical and/or electronic form; and an ex-parte order for the FIRS to have access and/or seal the business premises or other known place of business.3 With respect to the last two orders, the taxpayer must have refused to willingly grant access to the FIRS.4 The application is to be brought by way of motion ex-parte accompanied by an affidavit and a written address.5
So important to the Practice Directions is the need for speedy determination of tax matters that it requires a judge before whom such a matter comes to treat it as a priority.6 Without expressly stating so, this particular provision further gives breathe to Section 34 of the Federal High Court Act which mandates the Federal High Court to give priority to all revenue causes or matters before the court. Where an interim order is granted by the court, the FIRS must follow it up with a motion on notice and a written address filed within fourteen (14) days after service of the interim order. The motion on notice is for an order absolute for the immovable property or an order forfeiting the assessed amount from the bank account.7 It also worthy of note that the FIRS can apply for extension of the term of the interim order granted by the court provided that the application is made within the fourteen
- days after service of the interim order.8
It appears from the Practice Directions’ use of the words “shall” and “may” that the interim orders for forfeiture and for freezing bank accounts must be granted without any discretion given to the judge while the grant of the ex-parte order to enter or seal a business premises is left to the judge’s discretion. The relevant provisions are reproduced below:
- The Judge shall make an Interim Order of Forfeiture of the property to the FIRS on behalf of the Federal Government pending the determination of the Motion on Notice, if he is satisfied that the requirements in these Practice Directions are complied with.
- The Judge shall make an Interim Order of Freezing of the bank account of a defaulting Tax Payer pending the determination of the Motion on Notice.
- The Judge may make an Order granting the FIRS leave to enter and/or seal the business premises or other known place of business of the Tax Payer, pending the determination of the Motion on Notice.9
There is no provision mandating the judge to grant the ex-parte order for the FIRS to have access to taxpayer’s books, documents, etc. Thus, it fall squarely within the judge’s discretion to grant such an order as the circumstances may demand and based on the inherent jurisdiction of the court.
A respondent on whom a motion on notice for an order absolute has been served may oppose the motion before the court by filing a counter affidavit and written address within fourteen
(14) days of the service of the motion on him.10 He may also apply for extension of time, and such application must be considered, subject to whether he is caught by the Federal High Court (Civil Procedure) Rules on default of appearance.11 If, on the other hand, the respondent does not seek to contest the application, he is required to file an application for leave of court to pay the tax debt into the designated bank account and request the discharge of the entire application.12
An ancillary but also very important provision stipulates that a respondent seeking to challenge an assessment served on him must pay half of the assessed amount into an interest- yielding account of the Federal High Court, pending the determination of the application.13
Another interesting innovation is with regards to the service of court processes. The Practice Directions permit processes to be served via email, WhatsApp, or as may be directed by the court.14 Pursuant to this, the court may even permit or encourage other electronic means for the service of court processes. A print-out of the service via any such electronic means is sufficient proof of service.15
An applicant who fails to appear or be represented on the day of hearing or the adjourned day may have his application struck out,16 and a respondent who defaults in appearance may, upon proof of service, be proceeded against in accordance with the Civil Procedure Rules.17 However, an application which is struck out for default of appearance on the part of the applicant may be re-listed on terms by the court upon application by the applicant.18
A major area of concern and debate is the implication or effect of the provision enabling ex- parte orders on the constitutional right to fair hearing. An ex-parte application is an application brought before a court for a court order without notice to the persons against whom it is brought. The application is generally heard in the absence of the party to be affected by the order, and, even where such party is present in court, he is precluded from responding to the application except with the permission of the court which is usually not granted (see 7-Up Bottling Co. Ltd. v Abiola & Sons Ltd19).
That the FIRS is empowered to seek, and the court empowered to grant the interim and other ex-parte orders with respect to matters that are so grave that they have the potential to be detrimental to respondents even in the short term may raise brows. This is especially because the orders themselves affect a number of constitutionally guaranteed fundamental rights of citizens, ranging from the right to property to the right to privacy. A court order restricting any of such rights without first hearing the affected persons would appear to be unfair at least or unconstitutional at most. However, the position of the law as it stands is that such orders are generally not unconstitutional. In the first place, the restriction of the rights to privacy and property are themselves permitted by the Constitution. Section 45 of the Constitution permits the restriction of the right to privacy by any law that is reasonably justifiable in a democratic society while section 44(2)(a), (b) and (k) permit the compulsory acquisition or taking of possession of movable or immovable property under any general law for the imposition or enforcement of any tax, or for forfeiture for breach of any law, or relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.
The right to fair hearing, on the other hand, is not restricted in the same way by the Constitution. Yet, the courts have held the grant of ex-parte orders to not constitute a restriction or violation of the right to fair hearing. In the case of Dame Patience Jonathan V FRN,20 the Court of Appeal relied on 7-Up Bottling Co. Ltd. v Abiola & Sons Ltd21 in holding that “…the orders to be made by the Court unlike final decisions, are temporary in nature, so that, they do not determine the ‘Civil Rights and Obligation’ of the parties in the proceedings as envisaged by the Constitution.”
In addition, ex parte orders are granted only in circumstances of extreme urgency where irreparable damage is imminent. It is only for a temporary term and is usually followed up with motion on notice. Also, judges are mandated to exercise extreme caution in granting such. Granting an ex parte order does not jeopardize fair hearing, unless the judge overlooks the safeguards.
In light of the current judicial attitude, the provisions of the new Federal High Court (Federal Inland Revenue Service) Practice Directions with respect to the grant of ex-parte orders upon the hearing of ex-parte motions will likely be upheld as constitutional by the higher courts.
- Order I, Rules 2 to 5
- Order I, Rule 1
- Order III, Rules 1 and 2
- Order III, Rule 2(c)
- Order III, Rule 1
- Order III, Rule 4
- Order III. Rule 6(i)
- Order III, Rule 6(ii)
- Order III, Rule 5(i) – (iii). Emphases are mine.
- Order III, Rule 8; Order V, Rule 1
- Order III, Rule 9
- Order V, Rule 2
- Order V, Rule 3
- Order IV, Rule 1
- Order IV, Rule 2
- Order VI, Rule 1
- Order VI, Rule 3
- Order VI, Rule 2
-  3 NWLR (Pt. 383) 257
- (2018) LPELR-43505 (CA)