Legal battle shifts to Supreme Court as Rivers seeks setting aside of Appeal Court order – The Sun Nigeria


From: Godwin Tsa, Abuja

The Rivers State Government has approached the Supreme Court to set aside the interim order of injunction issued by the Court of Appeal restraining it from executing the judgment of the Federal High Court Port Harcourt according to it with the legal right to collect Value Added Tax (VAT) and Personal Income Tax (PIT) in the state.

The state is further seeking an order directing that the appeal lodged by the FIRS at the Court of Appeal be heard and determined by a new panel of justices of the court other than those that granted the order for the maintenance of the status quo ante bellum.

Consequent upon its appeal, the Rivers State Government equally filed a motion for the stay of execution of the order for the maintenance of status quo ante bellum pending the hearing and determination of its appeal at the Supreme Court.

The motion dated September 14 was brought pursuant to order 4 Rule 6 of the Court of Appeal Rules 2016.

The River State Government argued that any further steps taken by the FIRS pursuant to the aforesaid order of the Court of Appeal would render the judgment of the Supreme Court in its appeal nugatory.

In the said judgment that was delivered on September 10, Justice Stephen Pam, who stopped the Federal Inland Revenue Services (FIRS) VAT and PIT in Rivers State, held that it is the Rives State Government and not the FIRS that should collect VAT and PIT henceforth in the state.

The court also issued an order of perpetual injunction restraining the Federal Inland Revenue Service and the Attorney General of the federation, both first and second defendants in the suit, from collecting, demanding, threatening and intimidating residents of Rivers State to pay to FIRS, personnel income tax and Value Added Tax.

Dissatisfied with the said judgment, the FIRS approached the Abuja division of the Court of Appeal with a motion for a stay of execution of the judgment.

But while adjourning hearing of the motion to Thursday, September 16, the appellate court had upon an oral application by counsel to the FIRS, Mahmud Magaji (SAN), made an order for the maintenance of status quo ante bellum.

Justice Haruna Tsanami, who led the three-member panel of the Court of Appeal, ruled that it was for the overriding interest of justice for the parties who submitted themselves before the court not to take further steps that would destroy the res.

‘It is hereby ordered that status quo ante bellum should be maintained pending the hearing of the motion,’ the judge ruled.

But in 10 grounds of appeal, the Rivers State Government, through its lead counsel, Emmanuel Ukala, urged the Supreme Court to set aside the decision of the Court of Appeal and to equally dismiss the oral application by the FIRS.

In its notice of appeal, the Rivers State Government argued that the Justices of the Court of Appeal erred in law when they relief on the provisions of section 6(6) of the 1999 constitution and the inherent jurisdiction of the Court of Appeal to found their decision to make an order to maintain status quo which they identified as restoring the parties, the position they were before the judgment of the Federal High Court in FHC/PH/CS/149/2020, was delivered on August 9.

‘That by so doing, the Justices of the Court of Appeal failed to appreciate that the inherent jurisdiction of the court cannot be applied in contravention of statutory provisions.’

The state further argued that the justices of the appellate court failed to appreciate the nature of inherent jurisdiction and that it can not be invoked to circumvent the clear provisions of the statute as it was done with regards to Order 6 Rule 1 of the Court of Appeal rules 2016, in this case.

‘That they failed to take into account the principle governing the exercise of inherent jurisdiction laid down by the Supreme Court in the case of Shugaba V Union Bank (1999) 11 NWRL (pt.627) 459_ to the effect that no court has Inherent jurisdiction (except in extreme circumstances) to set aside the exercise of discretion of another court with regards to order made in respect of an application for stay.

‘That the Justices of the Court of Appeal erred in law when they wrongly assumed jurisdiction to entertain the oral application for the maintenance of status quo made by counsel to the FIRS in spite of the fact that a condition precedent to the invocation of the jurisdiction of the Court of Appeal was not fulfilled by the FIRS.’

It noted that under Order 6 Rule 1 of the Court of Appeal rules, 2016, ‘every application shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief.

‘It is also the contention of the appellant that the justices of the Court of Appeal erred in law and breached its right of fair hearing when they entertain a vague oral application for the maintenance of status quo and even went ahead to make far-reaching orders they said were aimed at maintaining status quo ante bellum.

‘That they equally erred in law when, in spite of their earlier ruling on the same day that the motion on notice filed by the Attorney General of Lagos State to be joined to the appeal was to take priority over the motion on notice filed by the 1st respondent (FIRS) for a stay of execution and injunction pending appeal, they still entertained the nebulous oral application for the maintenance of status quo and even went beyond the oral relief sought in the said motion by granting what they referred to the maintenance of status quo ante bellum.’

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