The Federal High Court holds that the TAT is not bound by the rules of the courts and that a notice of appeal filed at TAT is valid when in compliance with the TAT rules
On 3rd May 2018, the Federal High Court in Federal Inland Revenue Service v Chevron Nigeria Ltd (Appeal No. FHC/L/7A/2016) held that the Tax Appeal Tribunal (“the TAT”) is not a regular court of law but an administrative tribunal and therefore not bound by the strict provisions of the rules applicable in the regular courts particularly in respect of the capacity of the legal practitioner representing a party at the TAT and the validity or otherwise of the Notice of Appeal filed at the TAT.
The Federal Inland Revenue Service (Appellant) filed the appeal challenging the decision of the TAT at the Federal High Court. On the 14th November 2017, the Appellant, in addition to its Notice of Appeal, filed a motion on notice seeking to set aside the judgment and the entire proceedings of the TAT on the ground that the Federal High Court lacks the jurisdiction to hear the appeal due to some alleged defects in the Notices of Appeal filed by Chevron Nigeria Limited (Respondent) at the TAT. The said alleged defects in the Notice of Appeal are:
- the Notices of Appeal and other processes filed at the TAT (the Notice of Appeal) were not signed by any identifiable legal practitioner who is enrolled to practice as a legal practitioner in Nigeria because among the names listed as representing the Respondent at the TAT no tick or mark was placed by the side of any to identify the person that signed the Notice of Appeal; and
- the Notice of Appeal was signed by two independent group of counsel from separate chambers, i.e. Aelex Legal Practitioners and WTS Adebiyi & Associates.
Position Of The Parties
In summary, the position of the Appellant is as follows:
- Although the names of six people are listed on the Notice of Appeal filed by the Respondent (with four names on the side of Aelex Legal Practitioner’s and two names on the side of WTS Adebiyi & Associates now Adebiyi Tax & Legal) the appended signatures on the process are shrouded in secrecy; are unidentifiable, and no attempt was made by the Respondent to indicate who actually signed the court processes.
- That when counsel conceals his identity on a court process (as the Respondent did at the Tribunal); the court does not have any obligation to embark on a voyage, to discover the identity of the person who signed the process.
- The Notice of Appeal was signed by unknown persons i.e. the first, purporting to sign on behalf of the firm Aelex Legal Practitioners as counsel to the Respondent and the other purporting to sign on behalf of the law firm of WTS Adebiyi &Associates, as co-counsel to the Respondent.
- Relying on Alhaji M .O. Odutula v. Engineer S. O. Ogunseye & Ors (2017) LPELR 42367, it was argued that since the Notice of Appeal was signed jointly by two separate counsel it is incompetent and that the proceedings of the TAT conducted on the basis of the incompetent Notice of Appeal were done without jurisdiction.
On the other hand, the Respondent argued as follows:
- Based on evidence, the persons whose names are set out in the signature column of the Notice of Appeal are legal practitioners whose names are on the roll of barristers and solicitors in compliance with the Legal Practitioners Act.
- The essence of ensuring that a qualified legal practitioner signs a court process is to prevent a situation whereby non-lawyers sign such processes and where legal practitioners whose names are on the roll of barristers sign a process, it will defeat the essence of the above restriction if such a process is nullified on account of not placing a tick or mark beside the names of the person that signed the process.
- The Notice of Appeal are in compliance with the FIRS Act and the TAT rules and that the TAT rules does not make the signature of a legal practitioner, a prerequisite for a Notice of Appeal to be valid.
- Under the TAT rules, a tax payer may be represented by himself, a partnership through one of its partners, a company through one of its directors or officers, or by a legal practitioner, chartered accountant, or an adviser and that the Notice of Appeal is valid as the signatories could have signed in their capacity as advisers to the Respondent.
- On the second issue, it was argued that based on the provisions Paragraph of 18(1) of the Fifth Schedule to the FIRS Act and Order V (5) of the TAT rules that a party at the TAT may be represented by more than one counsel.
Decision Of The Court
The court in dismissing the application held inter alia as follows:
- Under the TAT rules, a party may be represented at the TAT by a legal practitioner, or a chartered accountant, or an adviser. In other words, the TAT Rules does not limit who may represent a party at the tribunal to only legal practitioners.
- The TAT rules also provides that a Notice of Appeal shall be in Form TAT1 which does not have any column for signature.
- The FIRS Act provides that a complainant or appellant, as the case may be, may either appear in person or authorize one or more legal practitioners or any of its officers to represent him or its case before the Tribunal.
- The TAT is an administrative body and not a normal court, and the process used before the TAT are not expected to comply with the strict procedure of a normal court. The TAT Rules does not specifically state that the Notice of Appeal must be signed by only a lawyer or cannot be co-signed by lawyers.
The Implications Of This Decision
The Federal High Court has made it abundantly clear that the TAT is not a regular court but an administrative body and as such substantial compliance with the rules of the TAT is the determinant of the validity of a process filed before it and not the rules of a regular court.
Thus while a well drafted Originating process is very desirable and should be the goal of every legal practitioner, strict adherence to court technicalities of the regular court would not operate to divest the TAT of jurisdiction.
For more information, contact:
Maxwell Ukpebor, Samuel Akpologun
Adebiyi Tax & Legal
House 20 Wema Terrace
Udi Street Ikoyi
+234 803 960 0520
This Legal Alert contains information on tax /legal issues. It does not constitute legal or professional advice on such issues. Where specific legal advice is needed, the services of a solicitor/tax adviser should be sought.