The VAT Controversy: Where Will The Chips Land? Dr Raphael Christopher — A Rejoinder

By Stanley Maduabuchi Ofoegbu Esq,

Few days ago, Dr Raphael Christopher made a beautiful publication on the above subject matter which was published by the Nigeria lawyer’s news accessible at https://thenigerialawyer.com/the-vat-controversy-where-will-the-chips-land/. I must say that the piece was more than a post graduate university lecture. Very holistic and historic. The writer must be eminently commended for such a wonderful research and write up.

At this point, I must say that I have painstakingly read through the draft by the learned author on the agitating issue of VAT that is raining thunder and brimstones. While I appreciate the position of the learned author on the vivid bifurcation of the tax regime and origin, I am of the firm view that some submissions and legal arguments were misplaced and misconceived.

No doubt, the doctrine of laches and acquiescence as posited by the legal author is part of our legal system. However, the said doctrine does not ipso facto apply in all situations. The mere fact that a party fails or was unable to act at an earliest time does not necessarily invoke the application of the doctrine. An illegal and unconstitutional act will not become legal and constitutional simply because it was not challenged early enough. An illegal act remains illegal and the fact that it was unnoticed will not make the act legal to enjoy the application of doctrine of laches and acquiescence as a defense.

Where an act is illegal, and no one seems to challenge same, the act will continue but can never defeat the intendment of the Constitution especially, when the illegality is frowned at by the Constitution. The doctrine of laches and acquiescence applies mostly to the acquisition of land. It does not apply to defeat the intendment of the the mother of all laws the Constitution. Arguing otherwise, will amount to turning the law on its head. The issue of who can collect VAT is a constitutional issue. It is not a land law issue. It is not a case of a man dragging his land with another man after many years of adverse possession. Even in land matters, where another encroaches on another man’s land without the owner of the land knowing same, upon discovery of the encroachment, the owner can still maintain an action for trespass and title to land if he can show that based on circumstances, he was not aware or in the position of knowing when the trespass occurred.

The learned author submitted that it is difficult to argue on the legality or validity of the VAT Act that has been in operation for many years without any one challenging same. Well, assuming that the doctrine of laches applies, the doctrine does not give one what he does not have. The law that delay defeats equity does not apply in all cases especially, constitutional cases as this. An illegality no matter how long it has stayed remains an illegality. If truly, the Constitution does not empower the National Assembly to make law on VAT, the mere fact that the National Assembly made a law that has been in operation will be of no moment. It is immaterial whether the law has been in existence even before Christ was born. The constitution is the supreme law upon which all laws are tested. Any law inconsistent with it shall to the extent of its inconsistency be void. In AG Abia state and Ors v AFG, the apex court held that the constitution is the source of law to every other law, without which no other law can exist independently. Accordingly, if it is discovered that the VAT Act runs contrary to the provisions of the constitution, it must collapse irrespective of how old it has operated. Every law draws its inspiration from the Constitution. Accordingly, a law cannot be drawn and inspired by the Constitution only for the said law to override the provisions of the Constitution. If it tries it, it must fail. The beauty and power of a law is not on how long it has stayed but on the constitutionality of the law. Okra they say cannot outgrow it owner. If it is established that the VAT Act is unconstitutional, it doesn’t matter that states have acquiesced to its provisions for a long time, it remains illegal and must be set aside. Hence, it does not lie on the mouth of any one to say, why didn’t you challenge it early?

But wait, assuming though without conceding to the erroneous believe that the doctrine of laches and acquiescence applies to the controversy of VAT collection, the law is firmly settled that there are certain conditions that must be fulfilled before the doctrine can be activated. One of such conditions is that there must be prior knowledge. In other words, the person who stood by and allow his right to be taken away must indeed actually know that such rights existed and accruable to him. He must know from the outset that the said right actually belongs to him. If it is discovered that the rightful owner was ignorant of the said right, the doctrine cannot be activated because the law is that a man cannot acquiesce to what he does not know to exist. Accordingly, if the doctrine of laches is to be invoked as posited by the learned author, it must be shown that states knew from the beginning that they were actually indeed the rightful owner of VAT but decided to let it go. But because, the issue at hand is a constitutional issue, all argument surrounding the doctrine of laches is only but academic as no law can override the Constitution even if the law is older than late Chief Methuselah of the Old Testament. The proper argument should be on the legality and Constitutionality of the Vat Act including any other law that enables the FIRS to be collecting VAT and not whether states have acquiesced for a length of years without complaining. That argument is even less than academic and holds no water at all.

In all, while I appreciate the views and recommendations of the learned author, I am of the firm view that the judgment of the federal high court be allowed to stand even in the Supreme Court. It will go a long way in reducing financial crime in various states as the governors will have little or nothing to steal from. State will be forced to look inward and see how to better their lives instead of feeding fat on the sweat of another while claiming holier than thou. Every child should eat the food of his mother.

Written By Stanley Maduabuchi Ofoegbu Esq, 08068515340, email; [email protected], Abuja.