Are the FHC (FIRS) Practice Directions 2021 Valid?

This question is prompted by the disquiet generated specifically by the provisions of Order V Rule 3 of the said Directions, which enjoins a person who is charged with tax evasion, and intends to contest an assessment of tax served on him by the Federal Inland Revenue Service (“the FIRS”) to pay half of the assessment into an interest-yielding account of the Federal High Court, pending the determination of the claim by that court. Some commentators have questioned the legal and/or constitutional validity of this provision on a variety of grounds.

This intervention seeks to offer a fresh perspective (a different take, if you like) on the issue. Before doing that, though, the usual preliminaries . . .

Nature of Practice Directions

Practice Directions are at par with rules of court, and they have the force of law. See BUHARI v INEC (2008) 19 NWLR Pt. 1120 pg. 246; ABUBAKAR v YAR’ADUA (2004) 4 NWLR Pt. 1078 pg. 465 @ 511 and ORAEKWE v CHUKWUKA (2010) LPELR-9128. With regard to the specific Practice Direction under review, the enabling provisions would appear to include the following, inter alia:
i. Sections 4(3), 36(1) & (2), 44(1) & (2)(a) & (k), 68, 254 and Item 59 and Paragraph 2(b) of Parts I & III of the 2nd Schedule to the Constitution;
ii. Section 44(1) of the Federal High Court Act;
iii. Section 10(2) of the Interpretation Act.

They provide as follows, respectively:

– Section 4(3) (read along with Item 59 of Part I (the Exclusive Legislative List) of the Constitution) empowers the National Assembly, to the exclusion of any other person or institution, to legislate on taxation of incomes, profits and capital gains;
– Section 36(1) of the Constitution provides that in the determination of the civil rights and obligations of any person, he or she shall be entitled to fair hearing within a reasonable time by a court or other tribunal constituted in such a manner as to secure its independence and impartiality;

– Section 36(2) of the Constitution provides that, without prejudice to Section 36(1), a law shall not be invalidated solely on the ground that it confers on any Government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:
(a) provides for an opportunity for that person to make representations to the administering authority before the latter makes a decision affecting the former; and

(b) contains no provision making the determination of the administering authority final and conclusive;
– Item 68 in the Exclusive Legislative List of the Constitution empowers the National Assembly to legislate on any matter incidental or supplementary to any matter contained in that List;
– Paragraph 2(b) of Part III of the Second Schedule to the Constitution provides that the reference to ‘incidental and supplementary’ matters in that Schedule (i.e., in Item 68 thereof) includes “the jurisdiction, powers, practice and procedure of courts of law”;

– Section 254 of the Constitution provides that “subject to the provisions of an Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”,
– Section 44(1) of the Federal High Court Act provides that: “the Chief Judge may, with the approval of the National Council of Ministers, make rules of court for carrying this Act into effect”;

– Section 10(1) of the Interpretation Act provides that “any enactment which confers power to do an act, shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”.
Are the Practice Directions Valid?

This is the million Naira question, the answer to which I believe will be provided by an objective analysis of the foregoing provisions. To start with, under the Constitution (Section 44(1)), the right to property is all but sacrosanct, only being subject to the exceptions provided for in Section 44(2)(a) and (k), inter alia, namely, any general law for the imposition or enforcement of any tax, rate or duty or relating to the temporary taking of possession of property for the purpose of any examination or investigation.

There is no question that the prescription of Order V Rule 3 of the subject Directions are neither final nor conclusive, but are temporary, being contingent on the determination of a substantive application against the tax payer at the behest of the FIRS. To that extent, they evidently satisfy the requirements of Section 36(2) of the Constitution which saves such provisions. This is because in BAKARE v LAGOS STATE CIVIL SERVICE COMMISSION (1992) 6 NWLR Pt. 262 pg. 641, the Supreme Court held that, identical provisions (Section 33(2)) of the 1979 Constitution were in the alternative, and not conjunctive.

This is not the end of the matter, however, as, to the extent that the said Directions are expropriatory and tax-related, they are required to be construed strictly. See AFOLABI v GOVERNOR OF OYO STATE (1985) 2 NSCC Pt. II pg. 1151 and 7-UP BOTTLING CO. LTD v LAGOS STATE INTERNAL REVENUE BOARD (2013) 2 NRLR 105. This means that if there is any ambiguity or anomaly in their construction, it should be resolved in favour of the subject. It is with this in mind that we now construe the provisions of Items 59 and 68 of Part 1 (the Exclusive Legislative List), Paragraph 2(b) of Part III, both of the Second Schedule to the 1999 Constitution, and Section 44(1) of the Federal High Court Act.

It will be recalled that, whilst the former (i.e., Item 59) confers on the National Assembly the exclusive power to legislate on taxes, the latter, i.e., Item 68 and Paragraph 2(b) of Part III of the 2nd Schedule to the Constitution, authorises the National Assembly – also exclusively – to legislate on ‘incidental and supplementary’, matters such as the jurisdiction, powers, practice and procedure of courts of law. There is no doubt that Practice Directions are an incident of the practice ad procedure of courts of law. To that extent, it is arguable that, unless the National Assembly legitimately delegated that function to the Chief Judge of the Federal High Court in the instant case, the subject Direction is unconstitutional. Accordingly, on the question whether the power to make the said Directions were delegable, the concomitant question is whether the power to make them was delegated in the instant case – and, if so – whether any factor exists which vitiated the purported delegation.

I believe the answer to the first question, is an unequivocal ‘yes’. This cannot but be so, given the provisions of Section 44(1) of the Federal High Court Act which specifically authorises the National Assembly to delegate that function to the Chief Judge of the FHC. As to the second question, however, for the said delegation to be valid, it is subject to the fulfilment of a condition precedent imposed by Section 44(1) of the FHC Act, namely, the approval of the National Council of Ministers. Accordingly, the over-arching question is whether the Directions enjoy this status. If they don’t, the answer is obvious: MACFOY vUAC (1961) 3 All E.R. 1169 at 1172. You cannot place something on nothing and expect it to stand: it will fall.
To this, we might add that the Apex Court held in AMASIKE v REGISTRAR – GENERAL OF THE CORPORATE AFFAIRS COMMISSION (2010) LPELR – 446, S.C. pg. 106 C – D, that: “where a person or a public body or authority claims to have acted pursuant to a power granted by a statute, such person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances, and that he or she was empowered to act under it”.

Conclusion

But, for the special status of the Directions in question, they might have been saved by the provisions of Section 10(2) of the Interpretation Act. It will be recalled that they stipulate that, an enactment which confers a power to do a thing should be construed as also conferring all such powers as are necessary, to give effect to the main power or are incidental to its doing. Fortunately, or unfortunately, this is otiose, as the FHC (FIRS) Practice Directions 2021 will stand or fall on its own. However, is there yet a sting in this tale – something none of us is presently aware of, such as, perhaps, the said approval of the National Council of Ministers – which might possibly save it? It remains to be seen. For now, it appears that its maker is, for once – with the greatest respect – ‘in the dock’, at least, in the court of public opinion, to justify its validity. No doubt, His Lordship is eminently qualified to do that, and he will most probably pull a rabbit out of his judicial hat on the issue. Sooner than later. With the greatest respect, and utmost diffidence.