AGF, group disagree over proposed expatriates’ tax policy

The Attorney-General of the Federation (AGF), Lateef Fagbemi, SAN, and Incorporated Trustees of New Kosol Welfare Initiative have disagreed over the implementation of the proposed expatriates taxation regime.

AGF, in his preliminary objection to the plaintiff’s suit, told Justice Inyang Ekwo of a Federal High Court in Abuja that the Incorporated Trustees of New Kosol Welfare Initiative, that instituted the case, lacked the locus standi.

The AGF, a 2nd defendant in the suit, also 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 this suit for want of jurisdiction.

But in the plaintiff’s reply on points of law dated and filed March 4 by Paul 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.

“My Lord, Section 25 (r) of the Constitution states that the Federal High Court shall have exclusive jurisdiction over any ‘action or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies,’” he said.

According to him, in other words, where an action touches on the executive or administrative action or decision of the Federal Government or any of its agencies, this court will be vested with the requisite jurisdiction to entertain the suit.

The lawyer also argued that a 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 objection.

The News Agency of Nigeria (NAN) reports that the plaintiff had, in an ex-parte motion marked:

FHC/ABJ/CS/1780/2024, sued the Interior Minister, Olubunmi Tunji-Ojo, and AGF 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 implementing the new Expatriates’ Taxation Regime known as the ‘Expatriate Employment Levy (EEL)’ in Nigeria, pending the hearing and determination of the motion on notice.

When the matter was called on Wednesday, no lawyer appeared for the minister.
Atayi, who represented the plaintiff, then informed the court that the minister was represented on the last adjourned date.

He said though the matter was filed by writ of summons, the lawyer said the AGF filed a preliminary objection and that they had responded appropriately.

A.A. Nuhu, counsel to the AGF, confirmed filing an objection to the suit, but said they were yet to be served with the plaintiff’s reply.

Justice Ekwo, who ordered Atayi to serve Nuhu in the open court, adjourned the matter until March 24 for hearing.

NAN reports that the plaintiff’s Programme Implementation Coordinator, 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 (NW23,000,000.00) 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.

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.”