By Emmanuel Kehinde
Ilorin- – Managing Consultant/Chief Executive Officer, Maroct Consultants Group, Chief Ubani Uzoma Francis has called on the 36 states in Nigeria to stand up and collectively demand for the Stamp Duties revenue without fear or favour,ssying it is their Constitutional Right to do so.
He opined that all the stamp duties revenue belongs to the different states of the Nigerian federation.
Ubani spoke in Abuja on ‘Stamp duties: Practical approach on fostering united front on issues bothering on the collective interest of the States,’ during a meeting of the Nigerian Governors Forum on Tuesday, March 15, 2022.
He stated that said that the Federal Government of Nigeria through the Federal Inland Revenue Service, is only an agent to states on collection of stamp duties.
According to him, the different states of the Federation should take note that, in respect of the collection of stamp duties/levies revenue in Nigeria, the states are the principals; while the Federal Government (FG) through the Federal Inland Revenue Service, (FIRS) is only “Constitutionally designated collection agent.”
He said consequently, the FG/FIRS is accordingly mandated by the provisions of Section 163 (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which, according to him, means that FG/FIRS is obliged to follow the strict dictates and spirit of the said constitutional provisions.
He said the alleged orchestrated deception, unfair, and unwholesome collection practices should stop, particularly in the payment of the net proceeds of the duties/levies collected, to the different states of the federation in compliance with the constitution which is the supreme law of Nigeria.
Ubani, who is also a member, the Taxation Standards and Practice Monitoring Committee of the Chartered Institute of Taxation of Nigeria said there are court judgements and pronouncements to validate his position.
He said, “Uwais, CJN (as he then was) in interpreting the above cited provisions of the 1999 Constitution, in the case of Attorney-General of Ogun State & Ors. Vs. Attorney-General of the Federation (2010) 2 N.T.L.R. 902 at 943 para. F 944 para. B) held:
“It seems to me that the provisions of Section 162 subsections (1) and (10) of the 1999 Constitution, are general in nature, while those of Section 163 (b) of the Constitution, which deal in particular with Capital Gains Tax and Stamp Duties are specific. Therefore, the latter provisions override the former for generalibusspecialia derogant (i.e. special things derogate from general things). There are the Capital Gains Act, Cap 42 of the Laws of the Federation of Nigeria, 1990, as amended, and Stamp Duties Act, Cap. 411 which are “existing laws” under Section 315 of the 1999 Constitution. However, the Acts do not contain provisions pursuant to Section 163 of the 1999 Constitution, and as at now the National Assembly has not prescribed how the net proceeds of such tax or duty are to be paid among the States on the basis of derivation”.
In view of the Supreme Court decision in Attorney-General of Ogun State & Ors. Vs. Attorney-General of the Federation (supra) the National Assembly has put the requisite legislation under Section 48 (4) of the Finance Act, 2020, for the payment of the proceeds of stamp duties among the various States of the Federation on the basis of derivation.”
He added, “How the net proceeds of such tax or duty are to be paid among the different States of the Federation is now provided under Section 48 (4) of the Finance Act, 2020, which provide thus: 48 (4) Notwithstanding any formula that may be prescribed by any other law, the revenue accruing by virtue of the operation of this section, shall, on the basis of deviation, be paid as follows: (a) 15% to the Federal Government and the Federal Capital Territory, Abuja; and
(b) 85% to the State Governments.
“It, therefore, follows, that there is no basis for the provisions, as currently provided under Section 27 of the Finance Act, 2021, and therefore should be expunged in its entirety.
“No Country can survive without the “Rule of Law”, it is not just possible. It is our ability to subsume ourselves to the operation of rule of law, that makes us different from animals, that removes us from that form of nature where life was short, nasty, and brutish. By the year 1885, Professor A. V. Dicey, had already discussed the concept of the rule of law, which in summary, is the subjection of all persons before the law, and equality before the law. Whether you be a Sovereign, President, Head of State, or the poorest and wretched of the earth.
“Prof. A.V. Dicey’s rule of law, (The Constitution) means the absolute supremacy or predominance of the regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or even of wide discretionary authority on the part of the government. Prof. Dicey regarded rule of law, as the bedrock of the British Legal System, to which Nigeria adopted: ‘this doctrine is accepted in the Constitutions of U.S.A. and India, as well. No one above the law.”
Ubani further said, “What we have done in this matter of STAMP DUTIES, is that we extensively researched the provisions of the Stamp Duties Act, and the constitutional provisions, as it concerns the Stamp Duties Act, and our research revealed a very solid and strong ground, in favour of the different States of the Federation.
“We decided to hold on to that strong and firm ground discovered in the provisions of the 1999 Constitution of the Federal Republic of Nigeria, as altered, not deterred by the overwhelming threat coming from different quarters, in form of Letters and/or Circulars on stamp duties from CBN, Press Release on stamp duties from FIRS, Newspaper Publications on stamp duties from NIPOST, and Letters on stamp duties from the office of the Attorney General of the Federation.
“It was Mahatma Gandhi who said, and I quote: “Many people, especially ignorant people, want to punish you for speaking the truth, for being correct, for being you. Never apologize for being correct, or for being years ahead of your time. If you are right and you know it, speak your mind. Even if you are a minority of one, the truth is still the truth.’
“Consequently, it is our fervent belief that the truth shall prevail at the end.”
He added, “We, therefore, the different States of the Federation, to form a united front and demand for the stamp duties revenue that rightly belong to you by the very clear provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
“Having now known your strong ground on stamp duties revenue, we urge you to be united and firmly hold on to it.”
“The tax consultant said that Stamp Duties Revenue streams is a highly technical area of taxation that is very much misunderstood and very highly misinterpreted by many.
He advised that State Governments should be very careful in engaging technical support/advisers in the area of Stamp Duties Revenue Head, as according to him, many that profess, they know, are allegedly misunderstanding and misinterpreting the provisions of the Stamp Duties Act and the provisions of the Constitution of Federal Republic of Nigeria, 1999, as amended, as it concerns stamp duties.
Ubani said, “The different State Governments are strongly advised and enjoined, as a matter of urgency, to seriously-overhaul, review and domesticate Stamp Duties and Capital Gains Laws, in their various States, for effective and optimal collection of stamp duties and capital gains tax revenue in their different States.
“For quick and immediate wins: Section 115 of the Stamp Duties Act, empowers the Governor of a State to make Regulations to the further and better carrying into effect of the objects and purposes of this Act, among others.
“There is urgent need to provide technical training and capacity development for tax administrators and key staff of the States Internal Revenue Service for efficient service delivery and to avoid misinterpretation and arbitrariness.”
He added, “The different states of the Federation, should take note that, in respect of the collection of stamp duties/levies revenue in Nigeria, the states are the principals; while the FG through the FIRS, is only “Constitutionally designated collection agent.
”Therefore, the FG/FIRS is accordingly mandated by the provisions of Section 163 (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which means that FG/FIRS is obliged to follow the strict dictates and spirit of the said Constitutional Provisions. The orchestrated deception, unfair, and unwholesome collection practices should stop, particularly in the payment of the net proceeds of the duties/levies collected, to the different states of the Federation in compliance with the Constitution which is the supreme law of Nigeria.”
