Suit Challenging Nigeria’s Proposed Expatriates Tax to Begin Dec.
SUIT- Justice Mohammed Umar of the Federal High Court in Abuja has fixed Dec. 1 for hearing in a suit seeking to stop the Federal Government from implementing the proposed expatriates’ taxation regime.
The case, which was earlier scheduled for hearing by the new judge, could not proceed due to the ongoing judges’ conference.
Although Paul Atayi, lawyer to the plaintiff and the defence counsel were in court, Justice Umar, who was recently reassigned to take over the matter, was absent. The case which was formerly before Justice Inyang Ekwo, is to start denovo (afresh) before Justice Umar.
The plaintiff, Incorporated Trustees of New Kosol Welfare Initiative, had, in the motion ex-parte marked: FHC/ABJ/CD/1780/2024, sued the Interior Minister, Mr Olubunmi Tunji-Ojo, and Attorney-General of the Federation (AGF), Mr Lateef Fagbemi, SAN, as 1st and 2nd defendants.
The plaintiff filed the application through a team of lawyers led by Atayi.
The group sought an order of interim injunction restraining the defendants from commencing the implementation of the new Expatriates’ Taxation Regime known as the ‘Expatriate Employment Levy (EEL)’ in Nigeria, pending the hearing and determination of the motion on notice.
A Programme Implementation Coordinator of the group, Raphael Ezeh, in the affidavit he deposed to, averred that on Tuesday, Feb. 27, 2024, the Federal Government of Nigeria unveiled a set of proposed new taxation policy called the Expatriate Employment Levy (EEL).
“According to KPMG and other online information analysts and dissemination agencies, the Federal Government intends to compel all companies and organisations who engage the services of foreign expatriates to pay tax E.E.L. as follows:
“For every expatriate on the level of a director — Fifteen Thousand United States Dollars ($15,000.00) equivalent to Twenty-Three Million Naira, by the current exchange rates (N23,000,000.00) per annum.
“For every expatriate on a non-director level – Ten Thousand United States Dollars ($10,000.00) equivalent to Sixteen Million Naira, by the current exchange rates (N16,000,000.00) per annum,” he said.
Ezeh averred that the Federal Government also planned additional regulations consisting of penalties and sanctions for non-compliance with the proposed taxation regime.
According to him, inaccurate or incomplete reporting will attract five years’ imprisonment and/or N1 million fine.
He said failure of a corporate entity to file EEL within 30 day is to attract a penalty of N3 million, failure to register an employee within 30 days will also attract N3 million, while submission of false information will attract N3 million.
The coordinator said failure to renew EEL before its expiry date by an organisation is to attract a sanction of N3 million. Ezeh said “the proposed taxation regime is totally an anti-people policy because of its radical effect on different aspects of the Nigerian economy and it works like a choke-hold against the economic growth of the nation.”
He said taxation is a sensitive matter which, under the 1999 Constitution (as amended), calls for the collaboration of the executive and legislative arms of government. He said under Section 59 of the constitution, the executive arm of government alone does not have the power to impose tax on corporate bodies and other citizens of the nation.
He said the current prevailing tax regime is far more friendly towards expatriates than the proposed one. Ezeh alleged that the minister is about to commence full implementation of the EEL.
But the minister and the AGF, in their respective preliminary objections filed before the former judge, urged the court to dismiss the suit in its entirety. Tunji-Ojo, in his preliminary objection filed on March 14 by Mrs Eva Omotese, Director, Legal Services, also urged the court to strike out his name from the suit.
Giving five grounds of argument, the minister submitted that the group did not disclose its locus standi to initiate and maintain the suit as constituted. He said the failure of the plaintiff to disclose its locus standi robbed the court the jurisdiction to entertain the sult.
Fagbemi, in his preliminary objection, equally argued that the group lacked the locus standi to file the suit. The AGF argued that there was no cause of action disclosed in the plaintiff’s suit.
Fagbemi, in the application filed by Maimuna Shiru, Director, Civil Litigation and Public Law, therefore, sought an order dismissing the suit for want of jurisdiction.
But in the plaintiff’s reply on points of law to the AGF’s objection filed by Atayi, the lawyer cited reasons a court of law is vested with jurisdiction to hear a matter.
The lawyer argued that a court would assume jurisdiction when it is properly constituted as regards numbers and qualifications of members of the bench, and that no member is disqualified for one reason or another.
He also argued that the court would be vested with jurisdiction when the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction.
He further argued that the court can assume jurisdiction when the case before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Atayi cited previous cases to back his argument including the Saraki Vs. Federal Republic of Nigeria’s case, 2016. The lawyer also argued that the case, being a public interest litigation, the plaintiff had the locus standi (legal right) to file the suit.
He urged the court to dismiss the objections. The Federal Ministry of Interior had, earlier in 2024, suspended the implementation of the EEL which was launched on Feb. 27, 2024.
This, it said is to allow for further consultations with the Nigerian Association of Chambers of Commerce, Industry, Mines, and Agriculture (NACCIMA) and other vital stakeholders.
