Court Dismisses AGF’s Objection to MTN’s N3bn Suit


Davidson Iriekpen

The Federal High Court in Lagos yesterday dismissed a preliminary objection by the Attorney-General of the Federation (AGF) challenging a N3billion suit by MTN Nigeria.

MTN sued the AGF for demanding N242 billion and $1.3 billion as import duties and withholding tax assessments from it.

By a September 10, 2018 writ, MTN is challenging the legality of the AGF’s assessment of the import duties, withholding tax and value-added tax.

But the AGF, in the preliminary objection, argued that the suit was statute-barred, thus robbing the court of jurisdiction.

Arguing the motion on March 26, AGF’s counsel Mr. Tijani Gazali urged the court to strike out the suit on the ground that it was instituted outside the time prescribed by law.

The AGF contended that the suit disregarded Section 2 of the Public Officers Protection Act, which provides that any lawsuit against a public officer must be filed within three months of cause of action.

He said rather than MTN responding to the demand, it filed the case.

But the MTN through its counsel Chief Wole Olanipekun (SAN), who led Damia Dodo (SAN) and Prof Fabian Ajogwu (SAN), argued that the AGF’s objection was unfounded.

MTN’s lawyers maintained that the AGF’s contentions were unacceptable and unknown to law.

They argued that the cause of action actually crystalised when the AGF made a demand of MTN and threatened the company with court action on August 20.

Ruling, Justice Chukwujekwu Aneke held that the suit was not statute-barred.

“The pertinent question to ask is: when did the cause of action arise? Is it on May 21, 2018 when the plaintiff received the defendant’s letter dated May 10, 2018, or on August 23, 2018 when it received the defendant’s demand letter dated August 20, 2018?

“In my view, paragraph 24 among other paragraphs of the plaintiff’s statement of claim is germane in resolving this issue. MTN avers that the AGF afforded it insufficient time to respond to its queries.

“Judging from the plaintiff’s writ of summons and statement of claim as I am concerned to do, it will seem to me that the plaintiff’s cause of action with respect to this suit arose on August 23, 2018 when the plaintiff received the defendant’s letter of demand dated August 20, 2018, and not May 21, 2018 when it received the demand letter of May 10, 2018.

“From the endorsement on the writ, this suit was commenced on September 10, 2018.

“A simple calculation shows that from August 23, 2018 when cause of action arose to September 10, 2018 when the suit was instituted, a period of three months had not expired as envisaged for the suit to be statute-barred,” he said.

The court held that the irresistible conclusion to be drawn is that the suit was not statute-barred

“The preliminary objection is hereby dismissed in its entirety,” Justice Aneke held.

MTN is seeking a declaration that the AGF’s demand of N242 billion and $1.3 billion from it was premised on a process that is malicious, unreasonable and based on incorrect legal reasons.

The plaintiff said the purported “revenue assets investigation” carried out by the Federal Government for the period of 2007 – 2017 violated Section 36 of the 1999 Constitution.

MTN is praying the court to declare that the AGF acted in excess of his powers by directing a “self-assessment exercise” which usurps the powers of the Nigerian Customs Service to demand duties on imported physical goods.

It is seeking a declaration that the AGF acted illegally by also usurping the powers of the Federal Inland Revenue Service (FIRS) to audit and demand remittance of withholding tax and value-added tax.

The plaintiff wants a declaration that the purported “self-assessment” exercise by the AGF via its letter of last May 10 is unknown to law, and is therefore null and void and of no effect whatsoever.

MTN is further praying the court for an order vacating the AGF’s demand letter.

It is claiming N3 billion as general and exemplary damages as well as legal costs from the federal government.

Justice Aneke adjourned until June 26 for hearing.