10 questions and answers arising from the Federal High Court(FIRS) Practice Directions, 2021

By Chukwuemeka Eze

Question One
What is a Practice Direction?

Answer
According to Wikipedia, a practice direction is a supplemental protocol to rules of civil and criminal procedure in the courts – “a device to regulate minor procedural matters” – and is “an official announcement by the court laying down rules as to how it should function.”

Question Two
Who made the practice directions and under which law?

Answer
The Chief Judge of the Federal High Court, Hon. Justice John Terhemba Tsoho, made the Practice Directions under Order 57 rule 3 of the Federal High Court (Civil Procedure) Rules, 2019.

Question Three
What is the summary of the objectives of the Practice Directions?

Answer
Speedy resolution of tax disputes involving the Federal Inland Revenue Service (FIRS).

Question Four
What goal will FIRS achieve through this Practice Directions?

Answer
It will enable FIRS to obtain the order of court:
(i) Of Interim Order of forfeiture on immovable property of a taxpayer;
(ii) Freezing a taxpayer’s bank account;
(iii) For warrant of access against a taxpayer’s books, documents, services, billing systems, bank accounts, including those stored in a computer; in digital, magnetic, optical or electronic form for the purpose of tax investigation or audit;
(iv) For levying Warrant of Distraint executed by the Executive Chairman of FIRS against a taxpayer as provided in section 33 of the Federal Inland Revenue Service (Establishment) Act, 2007;
(v) To have access and/or seal the business premises or other known place of business, where the taxpayer refuses to willingly grant access to the FIRS.

Question Five
Will the FIRS put the taxpayer ON NOTICE before bringing an application to the Federal High Court to do any or all of the things listed in Answers 4(i) – (v) to Question four above?

Answer
No. The FIRS is empowered by the Practice Directions to file the application without serving the taxpayer, meaning that it will bring the application by Motion Ex parte.

Question Six
What will the Judge do upon receipt of the FIRS application?

Answer
The Judge is expected to do the following:

(i) Give priority to the FIRS application. In other words, the court will take the application out of turn in order to avoid long adjournments. Speed is the watchword here.

(ii) Grant any or all of the orders listed in Answer
4 (i) – (v) to Question four above upon being satisfied with the FIRS application.

Question Seven
What can FIRS do after obtaining the interim forfeiture order from the court?

Answer
(i) It will serve the taxpayer the interim forfeiture order, and takeover the property or bank account or any other asset of the taxpayer;
(ii) It will file another application called a Motion on Notice, for which it will serve the taxpayer urging the court to make an Order Absolute in order to permanently takeover the property or bank account of the taxpayer;
(iii) FIRS has to bring this application within 14 days after service of the Interim Order of forfeiture. An Order Absolute connotes the taxpayer will permanently forfeit the subject of the Interim Order of forfeiture, be it property, money in the bank account or any other thing covered by the original order.

Question Eight
What can the taxpayer who has been served a Motion on Notice do?

Answer
(i) The taxpayer will decide whether to pay the assessed tax or challenge the assessment;
(ii) Where he decides to pay the amount assessed by FIRS, the court will enter final judgment accordingly for him to pay into the designated FIRS bank account;
(iii) Where the taxpayer decide to challenge the assessment, he shall pay half of the assessed amount in an interest-yielding account of the Federal High Court, and file court processes challenging the interim order already obtained by the FIRS against the taxpayer.

Question Nine
What happens when the taxpayer absents himself on the day the court will hear his counter affidavit or application?

Answer
The court may terminate his opposition or strike out his processes, and allow the status of affairs before the termination or striking out to remain.

Question Ten
When is the commencement date of the Practice Directions?

Answer
31st May, 2021.

Compiled by:

CHUKWUEMEKA EZE, fcti
[Tax Law & Policy lecturer, Faculty of Law, Nasarawa State University, Keffi, and Legal Adviser, Chartered Institute of Taxation of Nigeria (CITN)]
June 12, 2021