MTN challenges AGF’s N242bn, $1.3bn demand

A demand from the Attorney General of the Federation (AGF), Mr. Abubakar Malami (SAN) on MTN Nigeria Communication Ltd for the payment of N242 billion and $1.3 billion, representing import duties, withholding tax and value added tax, is now a subject of litigation before Justice Chukwujekwu Aneke of a Federal High Court in Lagos. The judge had already fixed December 3, 2018 as the date to hear all pending motions in the matter. MTN is by a writ, dated September 10, 2018, challenging mainly, the legality of the AGF’s assessment of its import duties, withholding tax and value added tax in the sums of N242 billion and $1.3 billion. In its writ of summons, the telecommunication outfit is seeking the following declaratory reliefs:

“That the purported revenue assets investigation allegedly carried out by the Federal Government on MTN, for the period of 2007 – 2017, and its decision conveyed through the office of the AGF by a letter dated August 20, violates the provisions of Section 36 of the Constitution. “A declaration that the AGF acted in excess of its powers, by purporting to direct, through its letter of 10th May, 2018, a “self-assessment exercise” which usurps the powers of the Nigerian Customs Service to demand payment of import duties on importation of physical goods. “A declaration that the AGF acted illegally, by usurping the powers of the Federal Inland Revenue Service, to audit and demand remittance of withholding tax and value added tax.

“A declaration that the purported “self-assessment” exercise instituted by the AGF via its letter of May 10, is unknown to law, null, void and of no effect whatsoever. “A declaration that the AGF’s demand of N242 billion and $1.3 billion from MTN, is premised on a process which is malicious, unreasonable and made on incorrect legal basis”. Aside seeking an order of the court vacating the AGF’s demand letter dated 20th August, 2018, for the funds, MTN is claiming N3 billion as general and exemplary damages as well as legal costs against the defendant.

However, in its preliminary objection, the AGF argued that the plaintiff’s action was statute barred as MTN was seeking legal redress at the expiration of the time allowed by law. According to the AGF, the plaintiff commenced the suit in clear disregard to Section 2 of the Public Officers Protection Act, which provides that any action commenced against a public officer, must be made within three months from commencement of cause of action.

The AGF maintained that MTN’s failure to commence the suit within three months as stipulated by law, robs the court of its jurisdiction to entertain same. MTN also filed a similar suit before Justice Saliu Saidu of the same court against the Central Bank of Nigeria (CBN) over alleged $8.1 billion repatriated funds. In the suit, the telecommunication outfit is seeking an injunction to restrain the apex bank from taking further actions to reclaim the alleged debts. The CBN had alleged that MTN improperly repatriated dividends, and requested that it should return $8.1 billion to its coffers. Hearing of this suit has been fixed for December 4, 2018.