By Sylvester C. Udemezue
“Ultra vires” is a Latin Legal term translated (in English) to “beyond the powers”. The term is used to describe an act which requires legal authority or power but is then done/completed outside of or without the requisite legal authority (lexisnexis.co.uk). The act of a person or authority, is said to be ultra vires when the person/authority acts beyond the scope of the powers and purposes provided to him/it by law. Ultra vires acts are generally void. (see: Communities Economic Development Fund v. Canadian Pickles Corp., (1991) CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal authority is required in order to /make/enact a law or take certain actions, any law made or action taken without any such enabling law or outside or in excess of the powers granted by law is said to be or to have been taken “ultra vires” and accordingly void and of no effect. The opposite of ultra vires is “intra vires”, (translated to “within the powers”), a term used to refer to an act done under/within proper legal authority. An ultra vires act is going to be totally void and it’ll not bind anyone; is not enforceable. Besides, any person with requisite locus standi (legal standing) may commence a legal action either for an injunction to restrain a planned ultra vires act or to nullify an act taken or law made ultra vires the person making the law or doing the act.
A June 14, 2021 news item in a popular online (news) media platform in Nigeria, comes under the headline, “50% Of Disputed Tax Amount To Be Paid Into Court Account” and carries the following report, inter alia: “Anyone who intends to challenge a tax assessment in court must pay 50 per cent of the amount in dispute into an interest-yielding account of the Federal High Court before the case can be heard. The new requirement is contained in a recent practice direction issued by the Chief Judge, Justice John Tsoho, under Order 57, Rule 3 of the Federal High Court (Civil Procedure) Rules, 2019″. I have gone through a copy of the Federal High Court (Federal Inland Revenue Service) Practice Direction 2021, which was made on May 31, 2021to take effect on June 01, 2021. In respect of applications or actions filed by the Federal Inland Revenue Service (FIRS) to enforce payment of taxes by an alleged defaulting taxable Person, Order V Rule 3 of the Practice Directions provides as follows: “Where the Respondent intends to challenge an assessment served on him, he shall pay half of the assessed amount in an interest-yielding account of the Federal High Court, pending the determination of the application”. This and some other provisions of the said Practice Directions have attracted mixed reactions from Nigeria’s legal community as well as from stakeholders in the justice sector, tax law gurus and litigation giants. The present commentary is a preliminary part of my humble opinion on questions of legality, propriety or otherwise, arising specifically in respect of the provisions of Order V Rule 3 of the new Practice Directions.
With due respect, the prescription in Order V Rule 3 of the Practice Direction appears to be ultra vires the powers of the distinguished Chief Judge (CJ) of the Federal High Court (FHC), and therefore (I respectfully submit) may not stand in a court of law, if challenged, on grounds of oppressiveness, illegality and unconstitutionality. Meanwhile, I doubt some of the heads of our courts and their advisors truly appreciate the exact limitations of Practice Directions as a source of Civil or Criminal procedure. The way I see it (unless I am wrong; after all, I am not all-knowing), a Practice Direction does no more than provide guides on how to comply with existing Rules of Court (Rules made by the person issuing the Practice Direction), or on implementation of the rules or any aspect thereof. In UNILAG v AIGORO b(184) 11 SC 152 at 159, the Supreme Court of Nigeria defined Practice Direction as “a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed”. In Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313 160 at 175, the Court of Appeal stated thus: “A Practice Direction is a written explanation or guideline on how to proceed in a particular area of law or court…. Practice Directions have the force of law and parties must adhere to it”. It could be seen from the above that a practice direction is merely a supplemental protocol to rules of civil and criminal procedure in the courts, a sort of device to regulate minor procedural matters on matters already provided for by existing Rules/law. (See: ; NAA v Okoro (1995) 7 SCNJ 292 at 301). Besides, some advisory pronouncements by courts of law, providing guides on practice and procedure have also been equated or described as Practice Directions (See Abubakar v Wada). See also Nwankwo v. Yar`adua (2010) 12 NWLR (Pt 1209) 518 to appreciate the status of Practice Direction in Election Cases as well as the effect of non-compliance therewith.
Although Practice Directions are treated as law or as having the force of law, they nevertheless come/rank last in the hierarchy of laws in Nigeria (See Buhari v. INEC* (2008) 19 NWLR (pt 1120) 236 at 341-342). Further, Practice Directions lack the capacity to establish a court or to make substantive provisions hitherto not provided in any law. Further, it’s doubtful if a Practice Direction can even make a new provision that is not already contained in an existing law. It’s obvious from the pronouncement of the Supreme Court in UNILAG v. AIGORO that a Practice Direction has no power to introduce a new provision not contained in the Rules; cannot introduce a provision inconsistent with the Rules (or with any law) and cannot give provisions or explanations on a new subject not contemplated by the Rules or other existing law.
Now, Order 57 of the Federal High Court (Civil Procedure) Rules, 2019 contains provisions on powers of the Chief Judge of the Federal High Court to amend the Federal High Court (Civil Procedure) Rules, 2019, and to issue practice directions “towards the realization of speedy, just and effective administration of justice”. The Order in its entirety, provides: “1. Whenever additional provisions are made to these Rules or any part thereof are amended or modified, the Chief Judge may issue directives for addition, publication or reprint of supplements to these Rules. 2. Whenever the Chief Judge makes amendment or modification to these Rules it shall be sufficient to publish same as supplemental provisions without the necessity of new body of Rules except when necessary. 3. The Chief Judge shall have the power to issue practice directions, protocols, directives and guidance towards the realization of speedy, just and effective administration of justice. Practice directions etc to be published. 4. Such practice directions, protocols, directives and guidance shall be published and be given effect towards the realization of the fundamental objective of these Rules”.
From the above provisions, it’s doubtful there is any (enabling) legal justification for the Chief Judge (CJ) of the FHC to make such provisions as he is reported to have made in the Practice Direction presently under consideration. The powers of the CJ of the FHC to make Practice Directions is exercisable but only “towards the realization of speedy, just and effective administration of justice”. This is clear from the wording of Order 57 Rule 3 reportedly relied upon by His Lordship to issue the Federal High Court (Federal Inland Revenue Service) Practice Direction, 2021. Respectfully, it is difficult to see how the provision of Order V Rule 3 of the Practice Direction (requiring a person challenging a tax assessment imposed by the FIRS, to deposit 50 percent of the tax as assessed by the FIRS) can be reasonably described as a provision made “towards the realization of speedy, just and effective administration of justice”. Also doubtful is whether that particular provision (of Order V Rule 3) falls within the matters with respect to which the CJ of the FHC may make Practice Directions. Therefore (it’s respectfully so submitted), His Lordship lacks powers to make such a new or substantive provision in a Practice Direction.
Again, note that, in making the Practice Direction, the CJ did not purport to be relying on Order 57 Rule 2 of the FHC (Civil Procedure) Rules, 2019 relating to the power of the CJ of the FHC to amend the Rules. Even if he did, the argument could have been raised that there is a laid down Procedure for amending the Rules of Court, if that’s what His Lordship had in mind (although he doesn’t say so). In addition, there are other questions which I doubt my Lord, the Hon. CJ of the FHC, had adverted his mind to at the time he was drafting/signing this particular Practice Direction; they’re questions bordering on fairness, equity and the need to show respect for fundamental rights of litigants coming before a court of law. Examples: is it not unfair to compel a person (who has denied liability in respect of an assessed tax, or who is disputing a tax assessment) to deposit 50 percent of the amount of the assessed tax into the Registry of the FHC? Does such not amount to punishing the affected person even before his liability is established in court? (See ANAECHI v. INEC) Does His Lordship not consider that such a unilateral assessment done by the FIRS might have been undertaken (as is almost always the case) arbitrarily, sometimes without properly applying relevant laws. Besides, the assessment is always (as I have noted) undertaken by the FIRS without carrying along or consulting with the affected person (the taxable person); the assessment is an entirely a one-sided, arbitrary assessment, which more often than not, neither takes into account the interest of the taxable person, nor tries to balance the interest of the both parties. How fair or evenhanded is such a Practice Direction that provides that a court of law could, without first hearing from the challenger’s own side, insist that the person challenging or disputing a tax liability must pay half of the assessed sum (the sun in dispute) as a mandatory condition precedent to entertaining/determining the person’s opposition to the assessed amount or manner of assessment (which the challenger might even see as oppressive or tyrannical on the part of the FIRS?)? Additionally, how would such a draconian and inhibitive provision promote or encourage access to justice.
Access to justice means being “treated fairly according to the law and if you are not treated fairly being able to get appropriate redress…. It means access to ombudsmen, advice agencies and the police law. It means public authorities behaving properly. It means everyone having some basic understanding of their rights” (www.guardian.com). Access to justice has been described as a human right that must respected and could be enforced. According to International and European human rights law, EU Member States must guarantee everyone the right to go to court, or to an alternative dispute resolution body, and to obtain a remedy when their rights are violated. This is the right of access to justice (see: “Access to Justice in Europe” published by the European Union Agency for Fundamental Rights <http://fra.europa.eu>). Further on this paragraphs 14 and 15 of the the United Nations’ Declaration of the High-level Meeting on the Rule of Law recognizes that access to justice is a basic principle of the rule of law in the absence of which people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable. The Declaration emphasizes the right of equal access to justice for all, including members of vulnerable groups, and reaffirmed the commitment of Member States to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all. Paragraph 13 of the Declaration stresses that delivery of justice should be impartial and non-discriminatory and highlighted the independence of the judicial system, together with its impartiality and integrity, as an essential prerequisite for upholding the rule of law and ensuring that there is no discrimination in the administration of justice. (See: “Access to Justice”published by the United Nations and the Rule of Law <https://www.un.org>).
Nigeria is a member-State of the United Nations. Is Order V Rule 3 of the Practice Direction not a discouraging factor to Access to Justice and therefore a violation of the concept of access to justice? In as much as one encourages and applauds any law or device aimed to ensure prompt payment of lawfully imposed taxes in Nigeria, or to penalize non-compliance with extant tax laws, one must not fail or neglect the need for strict observance of the principles of fairness and rule of law in so doing.
Another issue is whether the provisions of Order V Rule 3 of the Federal High Court (Federal Inland Revenue Service) Practice Direction, 2021 are not a direct derogation from or negation of, the mandatory requirements of “fair hearing” and “impartiality” as required by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, which provides as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”. Section 1(3) of the Constitution provides that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”. Moreover, the Supreme Court of Nigeria has said (see the case of Buhari v. INEC) that _”in the hierarchy of our jurisprudence, Practice Direction comes last in terms of authority. In the area of conflict between the Constitution and Practice Directions, the former will prevail. If there is a conflict between an enabling statute an Practice Directions, the former will prevail. Where there is a conflict between enabling Rules of Court and Practice Directions, the enabling Rules of Court will prevail”.
What’s more? In a paper titled, “When the Making of a Tax is an Abuse of Rights”, M. T. Abdulrazaq (Professor of Taxation, Lagos State University, Nigeria (LASU); Provost, CITN Tax Academy; and Tax Partner at Nolands Nigeria Professional Services) condemned as a violation of right and tyranny, what he called “taxation without representation”. The erudite Prof wrote,
“Our legislators must respect the principle of legality on the basis of the prescription of “no taxation without representation” that was introduced in the Magna Carta in 1215. They must continually obtain our consent and act as a democratic guarantee against arbitrary taxation by the government. They must have imprinted on their mind the words of James Otis that “taxation without representation is tyranny”’. And reacting specifically to the Practice Direction currently under discussion, the learned professor had this to say (on the Legal Practice Discourse (LPD) Forum on 13 June 2021): “Practice Directions – sections 2,3 and 5 are objectionable as they seek to amend CITA [Companies Income Tax Act], sections 96, 60, 64, 86, 69, 76 and 77.”
Earlier on, in my own article titled, “The Legal Implications of the Requirement for ‘Two-Thirds Majority Vote’ in Relation to Removal of the Head of a Legislative House in Nigeria” (see: dnllegalandstyle. August 18, 2018), I had tried to emphasize the need for those occupying public positions to adher at all times and strictly, with tenets of Rule of Law and due process:
“…. it is expected that fairness, even-handedness and above all respect for rule of law would characterize the behaviour and standards of all men who find themselves in public offices. This was the position of IBRAHIM MOHAMMED MUSA SAULAWA, JCA in a judgment delivered on January 4, 2007, in APPEAL NO: CA/PH/161/99 in the case of WHYTE V KWANDE… in … CHIBUIKE AMAECHI v. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordships, PIUS OLAYIWOLA ADEREMI, JSC had advised thus: ‘in all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land. We ought to allow this time-honoured principle to sink well into our heads and hearts.’… In his book, 10 Steps to a More Tolerant Australia, Donald Horne (1921-2005) wrote: ‘the ideal of the rule of law, along with equality under the law, is one of the bases of tolerance. It means that, one way or another, governments themselves must act in accordance with the law'”.
However well-intentioned a law, policy or an action of a person or a public Institution is, if such law/policy/action is undertaken without adhering to due process of law, or is done without any supporting enabling law or in abuse of power, the law/policy/action itself becomes null and of no effect whatsoever (to the extent of its inconsistency with extant law or to the extent of its violation of due process); anything done/made without legal foundation must fail for being void ab initio. Accordingly, it’s my humble view that the provisions of the Federal High Court (FIRS) Practice Direction, 2021, issued on May 31, 2021, by the Chief Judge of the Federal High Court of Nigeria (to take effect on June 01, 2021), to the extent it purportedly requires that any person challenging (at the Federal High Court) an FIRS-conducted-or-arbitrarily-imposed tax assessment in Nigeria must as a mandatory condition precedent to entertainment of his opposition to the assessment, to pay 50 percent of the amount of the assessment into “an interest-yielding account of the FHC before the case can be heard”, is oppressive, inequitable, unfair, illegal and unconstitutional, having been made ultra vires and without taking into consideration certain fundamental requirements of fair hearing, human right, access to justice and fairness. The power given to His Lordship to make Practice Directions in deserving circumstances does not authorize my Lord to issue Practice Directions that are bereft of legal foundations or that are susceptible to being reasonably interpreted as oppressive, or supportive of tyranny or of laying foundations for brazen violation of the fundamental rights of citizens or denial of citizen’s right to access to justice. It’s my candid proposition that the said FHC(FIRS) Practice Direction, 2021 be immediately withdrawn and that the offending provisions be deleted after which another Practice Direction would be reissuing on the subject. Peter Drucker said, “Efficiency is doing the thing right. Effectiveness is doing the right thing”. Doing the right thing is always the right thing to do. A law or subsidiary law that fails to do the right thing usually (that’s, when challenged) doesn’t get the right treatment in court. It is additionally, finally, suggested that in future, all stakeholders (including especially legal luminaries in the field) should be consulted or carried along prior to, and in the process of law-writing and law-making, whether it be for purposes of enacting principal or of issuing subsidiary legislation. Test ideas in the marketplace. We learn from hearing a range of perspectives. Consultation helps engender the support decisions need to be successfully implemented. Keith Waterhouse defines “consultation” thus: “A consultation process is what some authority sets in motion preparatory to doing what it intended all along”. There is no greater support in law-making than consultation. Consultation is a major part of doing the right thing. Ronald Reagan (40th president of the United States of America) once said,
“the greatest leader[/man] is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things”.
▪️Sylvester C. Udemezue (udems).
email@example.com. (14 June 2021)