AN EXAMINATION OF TAXATION AS A MEANS OF ESTABLISHING LOCUS STANDI FOR THE TAX PAYER IN ANTI-CORRUPTION CASES IN NIGERIA.

AUTHOR: ILEMOBADE OLATERU-OLAGBEGI

Student (LL.B), Faculty of Law, University of Lagos.

INTRODUCTION

The Oxford English Dictionary defines ‘tax’ as a compulsory contribution to the support of Government, levied on; persons, property, income, commodities, transactions and so on, now at a fixed rate most proportionate to the amount on which the contribution is levied.” It is imposed without any specific direct benefit to be conferred on the taxpayer. For a payment to be considered as tax, its payment must be backed by the law and will be paid into the general purse (the Federation account of the Federal Government or the Consolidated Account of the State Government). It can be used to benefit persons other than the taxpayer or for purposes other than that for which it arises. The benefits of a tax are not necessarily to be enjoyed proportionately to the contributions of the taxpayers.  Traditionally, a tax system is for income generation purposes. In a modern tax system, however, income generation is not the only emphasis. There are two types of taxes; direct and indirect.

LOCUS STANDI

In Nigeria, the Constitutional provisions on locus standi are contained in Sections 6 (6) (b), Section 46 (1) and Section 272 (1) of the 1999 constitution. Locus Standi means the legal right of a party to an action to be heard in a litigation before a Court of law or tribunal. While locus standi refers to the legal capacity of a person to institute an action in a Court of law, it is a preliminary issue and is distinct from the merits of the case. The term entails the legal capacity of a plaintiff to institute, initiate or commence an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provision of any existing law as stated in Elendu v. Ekwoaba (1995) 3 NWLR (pt 386) 704. The two acid tests for determining whether or not a person has locus standi to initiate an action are:

  1. The action must be justifiable
  2. There must be a dispute between the contending parties. See UBA plc v. BTL Ind Ltd (2004) 18 NWLR (Pt 904) 180.

In Nigeria, an action to assert or protect a public right or to enforce the performance of a public duty ought to be carried out by the Attorney General of the Federation who has the requisite locus standi to sue. A private individual can only bring such an action(to assert a public right) if he is granted a fiat by the Attorney General of the Federation to do so in his name, this was the decision in Gani Fawehinmi v. President FRN (2007) 14 NWLR Pt 1054, Gani Fawehinmi v. Akilu (1987) NWLR (Pt. 67)797.

The classical function of Government is to offer protection to those subject to it. This function is carried out by maintaining law and order and as such, the Nigerian Constitution contains elaborate provisions on the duties and responsibilities of the Government. Thus, after Section 14 (2) (b) 1999 Constitution declares that the security and welfare of the people shall be the primary purpose of the Government, it goes further to state that it shall be the duty of the state to provide other adequate facilities. The State is enjoined to direct its policy towards ensuring “the promotion of a planned and balanced economic development” as stated in Section 16 (2) (a) of the 1999 Constitution. Inasmuch as these provisions are non-justiciable, they provide the yardstick for measuring the performance or non- performance of a Government. The discharge of these responsibilities requires funding and this is where taxation comes to place.

This then brings us to the discussion of corruption, anti corruption cases in Nigeria and fraudulent practices.

CORRUPTION AND LOCUS STANDI

Corruption poses serious developmental challenges and undermines democracy and governance; it weakens governmental institutions and retards economic growth as it undermines foreign investments and siphons available resources needed to provide public services. Corrupt practices in Nigeria have been so pervasive that between 1996 and 2002, Nigeria oscillated between the “Worlds Most Corrupt” and fourth “Most Corrupt Nation” with whom to do business as reported by the ICPC.

There was a need for anti-corruption initiatives, and this brought about the enactment of Corrupt Practices and Other Related Offenses Act in 2000, which led to the creation of Independent Corrupt Practices Commission in Nigeria (ICPC). Also, this led to the enactment of Economic and Financial Crimes Commission Establishment Act of 2002.

The current trends of corruption in Nigeria has led to; the subversion of the rule of law, the crippling of governance and the downfall of the Nigerian economy. This has caused Nigerian officials to recognize that desperate situations should call for desperate measures. An example of this decaying corrupt practice is the recent theft of Nigeria’s crude oil money by the former Minister of Petroleum Resources, Mrs Allison Diezani-Madueke amounting to billions of dollars in taxpayers’ money and the country’s money.

There is the need for questioning whether, apart from these institutions established, citizens ought to have the right to bring a case against such individuals and corporate entities perpetrating fraud against the Government’s money and tax payers’ money.

The Court over the years has held that there are instances in which an individual will not have the locus standi to bring a case before the Court. This was extensively discussed in the Supreme Court case of Senator Adesanya v. President of Federal Republic of Nigeria 1981 2 NCLR 358. However, the decision of the Supreme Court has been heavily criticized.  In the case of Olaniyan v. Adeniyi (2007) 3 NWLR (Pt 1020) 1 the Court held that for a plaintiff to be able to claim reliefs in a cause, he must have the necessary standing to sue; a plaintiff’s legal right of his own which is vital, real and earnest, must be in issue.

TAXATION AND LOCUS STANDI

In examining the Law of Taxation and locus standi in other countries, the Philippines High Court in its decision in David v. Macapagal- Arroyo (G.R. No 171396 May 3rd, 2006) held as follows; “A petitioner can sue as a citizen or taxpayer to gain locus standi. For even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue.” This decision was first laid down in Beauchamp v. Silk 275 Ky. 91 (Ky. Ct. App. 1938).

Also in America, the Supreme Court of North Carolina in Teer v. Jordan 232 NC 48,59 SE2d 359 (1950) held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.

In Nigeria there are two main cases as regards taxpayers’ locus standi to bring an action in anti-corruption/fraudulent malpractice matter.

The first case is that of Fawehinmi v. President of the Federal Republic of Nigeria. (2007) 14 NWLR Pt 1054. In this case the appellant, a former political party chairman and a taxpayer, brought a case against the Federal Government about the payment of two ministers’ salaries and allowances in dollars amounting to $247,000.00 and $120,000.00 respectively as against the Federal legislation of Certain Political, Public and Judicial Officer Holders (salaries and allowances, etc) Act No. 6 of 2002. The trial Court struck out the case on the ground that  he had no locus standi.

On appeal, Aboki JCA, in delivering the lead judgment held among others “It will definitely be a source of concern to any tax payer who watches the funds he contributed or is contributing towards the running of the affairs of the state being wasted when such funds could have been channeled into providing jobs, creating wealth and providing security to the citizens. Such an individual has a sufficient interest  of coming to Court to enforce the law and to ensure that his tax money is utilized prudently.” P 341 ,Paras. G-H. Therefore the appeal was allowed.

The significance of this judgment is that it unapologetically deviates from the rule in Abraham Adesanya v. Federal Republic of Nigeria and clothes a taxpayer with the necessary locus standi.

It is however somewhat surprising to know that in a more recent decision, the Court of Appeal deviated from its earlier pronouncement in Fawehinmi v. President of Nigeria.

In the case of Hon Wunmi Bewaji v. Chief Olusegun Obasanjo [2008] 9 NWLR pt. 1093, the appellant at the Federal High Court brought a suit claiming that being a citizen of Nigeria and a tax payer, his civil rights and obligations under the provisions of Section (6) (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria had been adversely affected and violated by the imposition and/or the introduction of petroleum taxation by the respondents. The appellants suit was struck out. On appeal, the Court of appeal held per OMOLEYE JCA, “ Under public law, an ordinary individual or a citizen or a tax payer without more will generally not have locus standi as a plaintiff. This is because such litigation concern public rights and duties, which belong to and are owed all members of the public including the plaintiff. Therefore a general interest common to all members of the public is not a litigable interest and cannot accord standing to a particular member. As in this case there was no legal right peculiar the appellant in issue. There was nothing relating to his legal position which the court could declare.” [Gamioba v. Esezi II (1961) 2 SCNLR 237, Obi v. INEC (2007) 11 NWLR (pt 1046) 565.Therefore the appeal was dismissed.

There seems to be a contradiction between these two recent Court of Appeal cases. In the former case it was established that a taxpayer had the right to institute an action and monitor the spending of funds by the government as a taxpayer. This wasn’t followed in the latter case and a taxpayer was held to have no right to institute an action. This case being the latest decision, the position now is that a taxpayer won’t have a right to bring a suit if he does not have locus standi in the restrictive sense and this therefore leads us back to the restrictive locus standi view in the decided cases of Badejo v. Minister of Education [1996] 8 NWLR, pt. 464, p.15 and Abraham Adesanya v. President Federal Republic of Nigeria (supra).

CONCLUSION

It is the view of the author that every individual should have standing, subject to the discretion of the Courts. The liberal view, as expressed in the case of Chief Gani Fawehinmi v. President of the Federal Republic of Nigeria (supra) is the better view and a taxpayer ought to have locus standi, to a certain extent in anti- corruption cases as decided by the court and as followed in other countries like Philippines. This brings to mind the statement of Lord Diplock in R. v. Inland Revenue Commissioners [1982] AC 617 stating as follows; “it would in my view, be a grave lacuna in our system of public law if a pressure group or even a single tax payer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped…”

Ilemobade Olateru-Olagbegi is a 500 Level student of the Faculty of Law, University of Lagos. The current President of The Maritime Forum, University of Lagos. A decoder for Amnesty International with interest in; Maritime Law, Human Rights, Alternative Disputes Resolution among others.

 

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