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SANs tackle Malami, insist VAT not on Exclusive List

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Senior lawyers yesterday faulted the claim by the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), that the Value Added Tax (VAT) is on the Exclusive Legislative List.
In an interview in New York, Malami was quoted as saying that no state has the power to lay claim to the collection of the VAT across the federation.

“A lot has precluded the state from collecting value-added tax. One, generally speaking, as you rightly know, the issue of the Value-Added Tax is an issue on the Exclusive Legislative List,” Malami said.
“And the implication of being in Exclusive Legislative List matter is that only the National Assembly can legislate on it. The question that you may perhaps wish to address your mind on is whether there exists any national legislation that has conferred the power on the state to collect VAT. And my answer is ‘no’.

“In the absence of a law passed by the national assembly in that direction, no state can have a valid claim to a collection of Value-Added Tax.

“The responsibility, right and constitutional power to legislate on a collection of VAT is exclusively and constitutionally vested in the national assembly and not in the state,” Malami reportedly explained.

But in separate interviews, some senior lawyers challenged the minister to point out where VAT was mentioned in the Exclusive Legislative List of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Human rights lawyers, Mr. Femi Falana (SAN), Dr. Mike Ozekhome (SAN), and Mr. Ebun-Olu Adegboruwa (SAN), among others, faulted Malami in separate responses .

But another senior lawyer, Mr. Ahmed Raji (SAN) expressed the belief that Malami was misquoted, not heard properly, or misrepresented in his claim that VAT is on the Exclusive Legislative List.
On his part, Mr. John Baiyeshea (SAN) said whether it is the federal government or the state that is legally empowered to collect VAT, is a decision of the court and not the AGF or any lawyer.

The collection of VAT has been a subject of national debate since Justice Stephen D. Pam of the Federal High Court in Port Harcourt ruled that the Federal Inland Revenue Service (FIRS) lacked the power to collect taxes not listed under Items 58 and 59 of Part I of the Second Schedule to the 1999 Constitution.

The FIRS had challenged the decision of the Federal High Court at the Court of Appeal, Abuja Division.
The appellate court had ordered the Rivers and Lagos State governments to maintain the status quo, pending the resolution of the legal dispute on the matter.

Dissatisfied with the decision of the appellate court that directed all parties to maintain the status quo, the Rivers State Government approached the Supreme Court, asking it to set aside the decision of the appellate court.

Citing different judicial precedents and constitutional provisions to disprove Malami’s position, Falana said the constitutional powers and competence of the federal government “is limited to taxation of incomes, profits and capital gains which does not include VAT.”

Falana argued that in both E.C. Ukala versus FIRS and Attorney-General of Rivers State versus FIRS, the Federal High Court held that there “is no constitutional basis for the FIRS to demand and collect VAT, Withholding Tax, Education Tax and Technology Levy in Rivers State or any other state of the federation.”

Specifically, the human rights activist contended that the federal government “cannot collect VAT or any other species of sales, or levy other than those specifically mentioned in items 58 and 59 of the Exclusive Legislative List of the Constitution.”

He, therefore, argued that the two decisions “cannot be faulted on legal grounds. Until the Court of Appeal or the Supreme Court sets them aside, to that extent, the decisions of the Federal High Court remain the law and as they cannot be impugned by any ex-cathedral statement or political opinion of any public officer, no matter how highly placed.”

Falana said since it would be problematic to set aside the judgments of the Federal High Court, the federal government might wish to embark on a consultation to let all the stakeholders appreciate the need to have a central collection system through the FIRS.

Falana, a former President of the West African Bar Association (WABA), however, observed that the federal government should be prepared to review the unjust distribution formula if it wanted the FIRS to collect the VAT.

Falana said in 2020: “The total VAT collected was N1.53 trillion. Apart from the allocation of 15 per cent to the federal government, the FIRS deducted four per cent as a collection fee while the Nigeria Customs Service deducted seven per cent from import VAT. There are some criteria involved in the distribution of FIRS that ought to be reviewed.”

Falana argued that having acknowledged the lacuna in the Constitution, the FIRS had mobilised the National Assembly to amend the law, noting that the attempt to use the federal legislature “will not work, as it is a non-starter.

“In Attorney-General of Ogun State versus Aberuagba, the Supreme Court stated categorically that the Sales Tax Law of Ogun State was invalid as it encroached on the exclusive legislative powers of the federal government. That was the prevailing situation in the Second Republic. But the judgment is not applicable under the current political dispensation.

“In other words, the VAT cannot be located in either the Exclusive or Concurrent Legislative List. Hence, it is a residual matter within the legislative competence of the House of Assembly of each State of the Federation,” Falana noted.

He, however, explained that the federal government might wish “to propose an amendment to the Constitution by putting VAT in the Exclusive Legislative List since another constitutional review is in progress.

“It is pertinent to point out that VAT was increased by the National Assembly last year, albeit illegally. But the increase has not had any positive impact on the Nigerian people.
“The essence of paying VAT and other taxes has long been defeated as governments have abandoned the provision of social amenities for the people,” he said.

Faulting Malami’s position yesterday, Ozekhome observed that the VAT “is not anywhere reflected in the Exclusive Legislative List of the 1999 Constitution.”

The senior advocate noted the judgment of the Federal High Court, Port Harcourt Division held that the VAT was not a matter within the Exclusive Legislative List.

He, therefore, added that the VAT “is a matter, which the state governments can or should legislate upon. As a result, there is now a law in Rivers State, which makes VAT an exclusive matter within the jurisdiction of the state. That is the present position.

“So, the mere pronouncement of the attorney-general in the faraway US cannot change the law, neither can it change an extant subsisting judgment of a competent court of law, which has not been set aside by the Court of Appeal. And that remains the law.”

On his part, Adegboruwa reinforced Ozekhome’s viewpoint, challenging the AGF to explain why the FIRS wrote a letter to the National Assembly to list the VAT on the Exclusive Legislative List if it was already there.

He, therefore, contended that the VAT “is not on the Exclusive Legislative List at all. If indeed it were on it, why would FIRS write a letter to the National Assembly, seeking to put VAT on the Exclusive Legislative List?”

The senior advocate added that all states across the federation “are thus entitled to make laws on VAT, through their various Houses of Assembly.
“This is the best way to end the controversy on the VAT. The federal government has no power in law to dabble into any matter that is not within its competence,” the senior advocate explained in his three-paragraph.

Another senior lawyer, Mr. Ahmed Raji (SAN) observed that a court of competent jurisdiction “has made a pronouncement which has been appealed. The matter is subjudice. The golden rule in ethics is that the appeal court should be allowed to rule before any further comments for or against”.

Raji expressed the belief that the AGF was misquoted, not heard properly, or misrepresented.
He, however, advised that all parties should focus their attention on the contents of their brief of arguments to be filed before the appeal court or Supreme Court as the case may be.

Similarly, Baiyeshea (SAN) said whether it is the federal government or the state that is legally empowered to collect VAT, is a decision of the court and not the AGF or any lawyer.
The senior advocate noted that he would not want to make the same mistake by the AGF by commenting on a case that is already before the court,

Baiyeshea said: “I will not like to make the same mistake with Malami by commenting on a matter that is before the Court of Appeal presently.
“All lawyers and indeed senior lawyers should know that we are not permitted to comment on or express an opinion on subjudice matters.

“Be that as it may, whatever the AGF has said will not matter. What matters is the decision of the superior court (in this instance, the Court of Appeal), which we are all waiting for. The matter will not stop at the Court of Appeal.

“It will certainly get to the Supreme Court. Whatever pronouncement the Supreme Court makes (based on interpretation of the relevant provisions of the Constitution), will eventually be the law. Therefore, what the AGF or any other lawyer or persons have said or may say, will at best be speculative opinions.”

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China announces fresh military drills around Taiwan

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China’s military announced fresh military drills on Monday in the seas and airspace around Taiwan — a day after the scheduled end of its largest ever exercises to protest against last week’s visit to Taipei by U.S. House Speaker Nancy Pelosi.

China’s Eastern Theatre Command said it would conduct joint drills focusing on anti-submarine and sea assault operations — confirming the fears of some security analysts and diplomats that Beijing would continue to maintain pressure on Taiwan’s defenses.

Pelosi’s visit to Taiwan last week infuriated China, which regards the self-ruled island as its own and responded with test launches of ballistic missiles over Taipei for the first time, as well as ditching some lines of dialogue with Washington.

The duration and precise location of the latest drills is not yet known, but Taiwan has already eased flight restrictions near the six earlier Chinese exercise areas surrounding the island.

Shortly before the latest drills were announced, Taiwan President Tsai Ing-wen met visiting St. Vincent and the Grenadines Prime Minister Ralph Gonsalves, telling him she was moved by his determination to visit despite China’s military pressure.

“Prime Minister Gonsalves has expressed in recent days that the Chinese military drills would not prevent him from visiting friends in Taiwan. These statements have deeply touched us,” Tsai said at a welcome ceremony for Gonsalves in Taipei.

It was unclear if Tsai had invited Gonsalves before or after Pelosi’s visit. “We don’t disclose internal planning or communications between governments,” the Taiwanese foreign ministry said when asked by Reuters.

Beyond the firing of 11 short-range ballistic missiles during the four earlier days of exercises, Chinese warships, fighter jets and drones maneuvered extensively around the island.

Shortly before those drills ended on Sunday, about 10 warships each from China and Taiwan maneuvered at close quarters around the unofficial median line of the Taiwan Strait, according to a person familiar with the situation who is involved with security planning.

Military talks shelved

Taiwan’s defense ministry said Chinese military ships, aircraft, and drones had simulated attacks on the island and its navy. It said it had sent aircraft and ships to react “appropriately.”

China’s defense ministry meanwhile maintained its diplomatic pressure on the United States, defending its shelving of military-to-military talks in protest at Pelosi’s visit.

“The current tense situation in the Taiwan Strait is entirely provoked and created by the U.S. side on its own initiative, and the U.S. side must bear full responsibility and serious consequences for this,” defense ministry spokesman Wu Qian said in an online post.

“The bottom line cannot be broken, and communication requires sincerity,” Wu said.

China called off formal talks involving theatre-level commands, defense policy co-ordination and military maritime consultations on Friday as Pelosi left the region.

Pentagon, State Department and White House officials condemned the move, describing it as an irresponsible over-reaction.

China’s cutting of some of its few communication links with the U.S. military raises the risk of an accidental escalation over Taiwan at a critical moment, according to security analysts and diplomats.

One U.S. official noted that Chinese officials had not responded to calls from senior Pentagon officials amid the tensions last week, but that they did not see this as a formal severing of ties with senior figures, such as U.S. Defense Secretary Lloyd Austin.

Asked directly about those reports, defense ministry spokesman Wu said, “China’s relevant counter-measures are a necessary warning to the provocations of the United States and Taiwan, and a legitimate defense of national sovereignty and security.”

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Biden denounces killing of four Muslims

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President Joe Biden denounced the killings of four Muslim men in New Mexico state that police say may be linked and could be a hate crime.

“I am angered and saddened by the horrific killings of four Muslim men in Albuquerque,” Biden said on Twitter on Sunday.

“While we await a full investigation, my prayers are with the victims’ families, and my administration stands strongly with the Muslim community. These hateful attacks have no place in America.”

Police in Albuquerque, New Mexico’s largest city, said on Saturday that they are investigating the murders of three Muslim men that they now suspect are related to a fourth homicide from last year.

The Albuquerque police said in a statement that they discovered the latest victim overnight Friday. His body was found near a Lutheran Family Services office that provides assistance to refugees, TV station KOB4 reported.

Police did not identify the man, but said he was in his mid-20s, Muslim, and “a native from South Asia”.

” Investigators believe Friday’s murder may be connected to three recent murders of Muslim men also from South Asia,” police said.

Two of the previous victims were Muslim Pakistani men, a 27-year-old whose body was found on August 1 and a 41-year-old discovered on July 26.

Detectives are now investigating whether these murders are connected to the death of a Muslim man from Afghanistan who was killed on November 7, 2021, outside of the business he ran with his brother in Albuquerque, the statement said.

The police urged anyone with information to call a tip line and said the FBI was assisting with the investigation.

New Mexico Governor Michelle Lujan Grisham expressed outrage at the killings, calling them “wholly intolerable”, and said she was sending additional state police officers to Albuquerque to aid in the investigation.

“We will continue to do everything we can to support the Muslim community of Albuquerque and greater New Mexico,” she said.

The Council on American-Islamic Relations, the largest Muslim civil rights group in the United States, has offered a $10,000 reward to whoever provides information leading to the killer or killers’ arrest.

Tensions have risen sharply in the city’s Muslim community.

“Now, people are beginning to panic,” Tahir Gauba, the director of public affairs with the Islamic Center of New Mexico, told the Albuquerque Journal.

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UAE tightens visa rules for Nigerians

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The United Arab Emirates (UAE) has released stiffer visa regulations for Nigerians. The new regulations which came after a public disturbance purportedly by some Nigerians have generated concerns among Nigerian travellers while it has created uneasy calm in the travel industry.

When a video emerged last week of some Africans causing a public disturbance in Dubai, the United Arab Emirates (UAE), it was clear the government of the Middle East country would react appropriately in a bid to protect the country and its citizens from any form of harm.

In the video, youths were seen fighting in a Dubai community and destroying public property. An unconfirmed report claimed that a Dubai Police officer was killed by the hoodlums.

The Nigerian Community in Dubai under the umbrella of the Nigerians in Diaspora Organisation (NIDO), United Arab Emirates (UAE) chapter, swiftly condemned the development while particularly commending the swift intervention of the Dubai Police who got the hoodlums, about seven of them, arrested.

After arresting them, the police said a criminal case has been registered against the suspects and they will be referred to the public prosecution for further action.

The Dubai Police warned against such unacceptable behaviour and urged the community members to report such behaviour through ‘Police Eye Service’ on Dubai Police app or by calling the emergency hotline 999. The Force also warned the public of publishing or forwarding clips to avoid legal accountability according to article 52 of the UAE Federal Law No. 34 of 2021 on countering Rumours and Cybercrimes.

The law stated that whoever uses the information network to announce, disseminate, re-disseminate, circulate, or recirculate news or data, or broadcasts any provocative news that would incite or provoke public opinion, disturb the public peace, spread terror among people, or cause harm to the public interest, the national economy, the public order, or the public health shall be punished with at least one year of imprisonment and a fine of not less than Dh100,000.

For the Nigerian community in Dubai, that singular incident was a signal to what would happen in days to come. The incident sent jitters down the spine of Nigerian immigrants in the Arab country and this was coming at a time Nigerians have issues securing jobs in the country.

In a statement, the NIDO UAE Group, while commending the Dubai authorities for swiftly bringing the matter under control, clarified that the illicit act does not represent what the country stands for.

“We the Nigerians In Diaspora Organization (NIDO) United Arab Emirates group which represents the interest of law abiding Nigerians in the UAE wish to express our profound gratitude and appreciation to the Dubai Police for their swift action in clamping down on the perpetrators of the disturbing video in the last 96 hours.

“We commend the Authority and we wish to state categorically that such illicit acts do not in any way define or represent us. We are good ambassadors, law abiding citizens and therefore, we distance ourselves from those miscreants. We assure the security agencies of our full support and cooperation if the need arises.”

Not satisfied with the clarification of the Nigerian community and as a further belt tightening measure to screen those coming into the country, Dubai has updated its visa requirements by including three new conditions.

There was an initial rumour about the suspension of visa application to Nigerians which was denied by the Nigerian community. It was gathered that the visa was showing pending on the visa status portal which indicates it was neither approved, nor rejected.

But the fear of the Nigerian community was confirmed when the Dubai authorities imposed fresh visa requirements for applicants.

As seen from the updated visa portal, there are three new Nigerian requirements mandatory for all visa applicants to provide.

These requirements are to be scanned and uploaded in the visa portal as provided to enable the applicant complete and submit visa application online.

The three updated requirements are Hotel reservation/place of stay in UAE, six-month Bank Statement and return flight ticket. While the UAE did not state any reason for the new requirement, it is believed the decision was taken to control the influx of individuals with criminal intent into the country.

It was gathered that the development is already causing uneasy calm in the travel industry as many travellers scramble to meet the new requirements. This may ultimately reduce visitors to the country for those who are unable to meet the new requirements.

The new requirements have been greeted with mixed feelings from stakeholders with the majority saying the development was a lesson to Nigerians to imbibe the habit of doing the right thing in accordance with the laws of their host countries.

Our correspondent reports that Dubai is one of the most frequently visited countries for business and tourism by Nigerians. About 200,000 Nigerians averagely visit the country annually either for business or tourism.

Before now, many Nigerians enjoyed the privilege of travelling to Dubai with very relaxed requirements until some Nigerians began to abuse the near free entry status granted to them, according to analysts.

This, they noted, would further hurt some Nigerians with legitimate reasons for going to Dubai. Among those to be affected are Nigerians in search of jobs in the Arab country.

“This development is good and also will prevent some fraudulent people coming in. But the point now is, they should allow us that have a visa inside the country work before it expires, please, so that we can pay our taxes and live peacefully. Please beg on our behalf,” said a Nigerian in search of jobs in Dubai.

According to the Director of Research and Strategy, Zenith Travels, Mr Olumide Ohunayo, the UAE as a country can impose any requirement it deems necessary in the interest of her country and the citizens.

He said, “Every country has the right to introduce some consular requirements to protect their country and ensure that eligible tourists, visitors or business men are those who come into their country.

“The UAE has been very relaxed with their visa. It is the most relaxed of the Middle East countries. Unfortunately, we have not behaved well. We have abused it. At a time, they stopped single ladies from coming except you are 40 and above.

“I have no objection to it. It is their country. They need to do what they need to do to safeguard other tourists apart from Nigerians and ensure that their country is protected.”

President of NANTA, Mrs Susan Akporiaye, also blamed Nigerians for the new requirements imposed by Dubai, saying the UAE authorities must have changed its entry rules due to abuse of the visa process.

She said while the travel agents are not happy with the development, everybody must learn to live by it.

She said, “They must have their reason. It’s a diplomatic thing. There is nothing anybody can do about it. We don’t know why they did that. Maybe they are not comfortable with what many Nigerians are doing. Maybe they did it due to an increase in crimes by Nigerians.

“Before then, we learnt that there was a situation where a policeman was killed. I don’t think it’s just that one incident. Maybe it is a compilation of different incidents that have been going on and probably from their investigation (I have not confirmed that), it seems to always be the Nigerian community perpetrating it, according to them. We have not confirmed this though. Everything is according to them. They have not officially released any report to the Nigeria Police to say that this is the percentage of Nigerians committing crimes.

“But then again, it is a diplomatic thing. Every country has a right to do whatever they want to do and we cannot question them. Are we happy about it? No. We are not but there is nothing we can do about it. It is their country; they determine how people come into their country.

“Sad enough. It is a lesson to us too that when people give us easy access, we should not abuse it. If you abuse the easy access, it will be taken away from you and you cannot fault them. You cannot go to another man’s house and determine how the man should operate in his own house.

“It’s a lesson for all of us. And enough of even going to another man’s country. Why don’t we all sit down here and see how to make things better for ourselves? Running away to other people’s country and doing business or for holidays are two different things. I am not saying people should not travel to do business neither am I saying people should not travel for holidays. Because if it’s just business and holiday, we won’t be where we are now. Because if it’s business, you will come back. If it is a holiday, you will come back and there’s absolutely no reason why UAE would change their rules.”

Mrs Akporiaye advised Nigerians visiting Dubai to do the right thing to avoid a situation where the UAE would further tighten the requirements, saying for those with legitimate businesses to carry out in Dubai, submitting their six-month bank statement shouldn’t be a problem.

She said, “The problem is those that go in the name of business and holiday and they don’t come back. It is not only UAE but every other country.

“So, there’s really nothing much to say than to just respect their decision. It’s not going to be easy; everybody has to adjust. And for those that have legitimate things to go and do, it shouldn’t be a problem.”

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