The timely reaction of the Senate to the policy of the Nigeria Customs Service to compel all vehicle owners to pay appropriate duties has once again questioned the extent of the oversight powers of the National Assembly. In contributing to the interesting debate, I shall examine the legal validity of the policy, the legal competence of the Senate to summon the Comptroller-General of Customs (CGC) to justify the policy and the legality of the directive that he should appear before the Senate in uniform.
The illegal policy of Nigeria Customs Service on payment of appropriate duties.
We are aware that the Nigeria Customs Service has announced the suspension of the implementation of the policy to compel all vehicle owners in Nigeria to pay appropriate customs duties from March 13-April 12, 2017. Notwithstanding the suspension we deem it fit to point out that the policy is illegal as the Nigeria Customs Service is completely estopped from collecting additional duties from vehicle owners who had paid the duties charged at the time of importation. Under the doctrine of estoppel by conduct the Nigeria Customs Service cannot be permitted to deny the payment of what was charged and collected as appropriate duties from vehicle owners several years ago.
In Alhaja Abibatu Mogaji v Board of Customs (1982) 3 NCLR 552, the armed agents of the defendant invaded and raided markets in Lagos and seized contraband goods. In the process, some of the traders were brutalized. They sued the defendant for damages in the Lagos high court. Apart from condemning the violations of the traders to dignity the Lagos high court cautioned that “Those in authority in customs and excise matters ought to intensify methods for apprehending offenders at the point of entry of goods into the country as it becomes more difficult to do so afterwards.” In Margaret Stitch v Attorney-General of the Federation (1986) 2 NSSC 1389 the Supreme Court held that the appellant was only liable to pay the customs duty based upon the rate of duty payable when she imported her used Mercedes-Benz car. It was the view of the apex court that it was unjust and retrospectively punitive to impose an additional financial liability of about N13,000 on the appellant.
In view of the settled position of the law on the matter what is required on the part of the management of the Nigeria Customs Service is not a suspension of the illegal policy but its outright annulment without any further delay. Of course, the authorities of the Nigeria Customs Service cannot be precluded from arresting and prosecuting highly placed individuals who usually forge importation documents in order to evade the payment of the appropriate duties to the coffers of the Federal Government.
Under the pretext of exercising its oversight powers last week, the Senate summoned the CGC to appear before it to justify the policy on payment of appropriate duties from March 13-April 2017. Since he did not appear in uniform, the Senate decided to adjourn its debate on the matter to enable him to comply with the directive. In spite of the importance attached to the trifle and diversionary directive on the uniform, it is submitted that the Senate lacks the vires to summon the CGC on policy matters. Indeed the oversight power of either house of the National Assembly is not at large but limited by section 88 (2) of the Constitution to enable it to “make laws with respect to any matter within its legislative competence and correct any defects in existing laws and expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriate by it.”
Since the decision of the Senate has nothing to do with making laws or exposing corruption, inefficiency or waste in the disbursement of funds appropriated by it the summoning of the CGC constitutes a blatant violation of the Constitution. No doubt, the policy was designed to generate revenue for the Federal Government. To that extent the Senate may be accused of shielding criminal elements who have engaged in the evasion of the payment of customs duties. If the Senate had wanted to protect the interests of vehicle owners including themselves they ought to have entered into dialogue with the Minister of Finance. There is no legal or moral basis for the arrogance of power being displayed by the Senate whose leadership has recently being linked with the illegal importation of a bulletproof limousine with fake papers to evade the payment of appropriate customs duties.
In El-rufai v House of Representatives (2003) 46 W.R.N 70 the Court of Appeal placed heavy reliance on the case of Senate of the National Assembly v Tony Momoh where it was held that “No power exists under the section for general investigation not for personal aggrandizement of the house. So the appellants were not entitled to have invited the respondent in the first instance. In the instant case, the Senate is not conducting an investigation but challenging the policy of the Nigeria Customs Service on payment of duties. With respect, the summons served on the CGC is illegal and unconstitutional as it cannot be justified under section 88(2) of the Constitution.
Illegal directive on wearing of uniform by CGC
However, the Senate engaged in another illegality when it exceeded its powers by asking the CGC to appear before it in customs uniform. Neither the Constitution not the Rules of Procedure of the Senate has conferred on it the power to compel the CGC to wear customs union when he is not a serving customs office. Indeed, the directive is a reckless usurpation of the powers of the Board which is the only competent body to decide on the wearing of uniform by customs officer.
In many countries including South Africa, customs officers do not wear uniforms. It is on record that the first 4 heads of the Customs department in Nigeria never wore uniforms.
Under the defunct military junta, officials of the security agencies wore uniforms as they claimed that they were either military or paramilitary forces. With respect to the customs service, its officers are required to wear uniforms in accordance with section 8 of the Customs Excise and Preventive Service Regulations which provides that “clothing and equipment shall be of such pattern and worn in such manner as the board shall determine.” The suit challenging the legal validity of Col Hameed Ali’s appointment has been dismissed on the ground that the President has the power to appoint a non-customs officer to head the customs service. Since a competent court has held that he is not a customs officer Col. Ali cannot be made to wear any uniform by the Senate.
If I am said to be wrong I challenge the Senate to refer to any law that supports the wearing of uniform by the head of the customs service who is not a serving customs officer. The EFCC has been headed by 3 serving police officers and a retired police officer but the Senate never mandated any of them to wear uniform whenever they appeared before it. Even the embattled acting chairman of the EFCC, Mr. Ibrahim Magu who appeared for confirmation in the Senate last week was not directed to wear his uniform even though he is a serving police officer.
I should not be understood as saying that the Senate deserves to be treated with disdain. All I am saying is that the Senate should have appreciated the limit of its powers under the Constitution. Thus, instead of playing into the hands of the CGC by invoking the provision of Section 88 of the Constitution the Senate could have summoned the Minister of Finance to justify the policy of the Nigeria Customs Service, a parastatal under her supervision. That would have been in consonance with section 67 (2) of the Constitution which has imposed a duty on every Minister to attend either House of the National Assembly to explain “the conduct of his Ministry, and in particular when the affairs of the Ministry are under discussion.”
Finally, the Nigeria Customs Service should be directed by the Minister of Finance to cancel the illegal policy on payment of appropriate excise duties. If the federal government remains recalcitrant on the matter, we shall not hesitate to challenge the policy at the Federal High Court. However, if the federal government is seriously committed to ending the importation of vehicles into Nigeria via neighboring countries it should direct the Nigeria Customs Service to reduce the prohibitive duties charged on imported vehicles.
Femi Falana is a Senior Advocate of Nigeria and principal partner at Falana & Falana