My learned colleague and ThisDay Lawyer columnist, Abubakar D. Sani, on 8th August 2017 published a piece titled: “Widening the Tax Net: Is Osinbajo's Executive Order Correct?” Though quite informative, yet it discredited the veracity of the Acting President's signing of the Executive Order (EO) No. 004 of 2017 on Voluntary Assets and Income Declaration Scheme (VAIDS), a tax window from 1 July, 2017 to 31 March 2018 encouraging tax defaulters to regularize their status by voluntarily declaring their income and assets in return for government waiver of penalties and immunity from prosecution, as contrary to the Constitution of the Federal Republic of Nigeria(CFRN) being that it conflicts with the National Assembly's exclusive power of regulating the collection of taxes, which is carried out through the Federal Inland Revenue Service (FIRS) and State Boards of Internal Revenue pursuant to section 4(3), Item 59 of the Exclusive list and Item 7 of the Concurrent Legislative List CFRN 1999.This rejoinder seeks to clarify the grey areas in respect of the EO on VAIDS and emphasize the constitutionality of the EO as valid and not ultra vires.
Origin and Relevance of EO
First, it must be established that the EO is a binding document which has the force of the law. Accordingly, the Black's Law Dictionary 9th Edition defines EO as “An Order issued by or on behalf of the President, usually intended to direct or instruct the actions of executive agencies or government officials or to set policies for the Executive branch to follow.” The EO was first adopted in the United States of America (US) on June 8, 1789 where George Washington, the first US president, addressed the EO to the Head of Federal Agencies and Departments, asking them to educate him on the function of their various departments- “…impress me with a full, precise and distinct general idea of the affairs of the United States in your fields.” Ever since then, subsequent US Presidents had used EOs for various purposes. Although there is nowhere in the CFRN 1999 that defines what an EO is, however, for an EO to have a force of law in Nigeria, it must be gazetted (published in the government's official journal).
EO's Constitutionality or Otherwise
Sani conceded that “…by virtue of Section 5 and 130 of the Constitution, all the Executive Powers of the Federation are vested in the President (or, the Acting President).However, these are general provisions”. I beg to differ, the import of section 5(1)(a)(b) CFRN '99 empowers the President to maintain Constitutional provisions, all the NA laws, and items on which the NA has power for the time being to make law whilst section 130 CFRN '99 lucidly states that: “the President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.” In my opinion, Osinbajo's EO cannot be termed ultra vires and Sani's position that the law being a ‘general provision' berates the EO's sanctity is not accurate. Considering the extant laws under the Companies Income Tax Act (Cap. C21) LFN 2004 (CITA), which specifically grants the President tax exemption powers. This was stated in my article titled “Tax Amnesty: A Step on the Ladder Out of Recession” published in BusinessDay (10th November 2016 pg.30) where I stated that: “The President's tax exemption powers can also be wielded to implement [Tax Amnesty Programme] TAP. Section 23 (2) CITA states that “the President may exempt by order-(a) any company or class of companies from all or any of the tax provisions of this Act; or (b) from tax all or any profits if any company or class of companies from any source, on any ground which appears to it[sic] sufficient…the President can also propose (with the NA's approval) to alter tax rates for capital allowances such as mining, infrastructure, agriculture, research and development expenditures pursuant to section 100 CITA.”
The specificity of sections 23(2) and 100 CITA undermines Sani's position where he stated that: “…specific things derogates from general things: generalia specialibus non derogant.” In fact, section 23(2) CITA stated specifically that the President by ‘order' exercise discretionary power of tax exemption. Such order could be in form of EO as practiced by Osinbajo, which in my opinion did not undermine the NA's laws rather it complements the Tax Administration (Self Assessment Regulations) 2011 in fostering the FIRS roles as tax enforcement/regulatory body. Also, the ‘general provisions' does not stop the President from exercising ‘discretionary powers' being the head of state, chief executive and commander in chief of the armed forces. The intent of such discretionary power (vide the EO) must be fair, just and made in good faith. Then, could it be said that Osinbajo's usurped the National Assembly's powers (pursuant to section 4(3) and Item 59 of the Exclusive list-“taxation of incomes, profits and capital gains, except as otherwise prescribed by this Constitution.”; and 9 of the Concurrent Legislative List of the CFRN 1999- impari materia to Exclusive list only that it relates to Federal and State government in respect of tax laws)?
My answer is in the negative, because the doctrine of separation of powers under the Constitution, enables the President to exercise some overlapping functions. For instance the President exercises legislative function by assenting to the NA Bill, if not it will not be passed to law except two third majority of the legislators hold otherwise pursuant to section 58(5) CFRN '99; similarly the President can modify laws that were made before 1999 and such law would be deemed as passed by the NA pursuant to section 315 CFRN '99). In this instance, the Acting President did not modify the law rather he amplified the existing tax laws' relevance and enforceability via the EO giving tax defaulters opportunity to conduct self assessment and report same to the tax authority. This, in any way, cannot amount to usurping of the NA's powers.
This position was further validated in AG Abia & 35 Ors v. A.G. Federation  4 NWLR (Pt.809) p.124 at 177 para F where the President's action of amending the Allocation of Revenue Act 1990 was considered valid and constitutional. The Supreme Court (SC) further stated that the two tests for determining constitutionality of modification to an existing law are: whether the modification order brings the relevant Act into conformity with the provisions of the Constitution; and whether there has been an infraction of the Constitution by the order. Same applies to the removal and appointment of Judges subject to Senate confirmation under s. 291 and 231 CFRN respectively.
The case would be different if the EO was unlawful or unconstitutional. In INEC v. Musa  3 NWLR (Pt 806) p 72 at 157 para E, the SC reiterated this position that “all powers, legislative, executive and judicial must ultimately be traced to the Constitution.” Osinbajo's EO on VAIDS can be traced to the Constitution because it supports the existing tax laws. Paragraph 12 EO VAIDS 2017 succinctly states that “the Executive Order shall be read in conjunction with all extant Tax Laws, Regulations, Guidelines as well as those that may be issued pursuant to the Scheme.”
Considering the spirit and letters of the Constitution, the Acting President's EO is fair and true; it's gazetted; specifically provided for under the CITA; and aimed at resuscitating our moribund economy and such should not be termed ultra vires. The mere fact that EO overlaps with the NA's exclusive roles of does make the EO of no effect because it is consistent with the constitution and does not contradict rather it gives credence to the existing tax laws in Nigeria which qualifies as part of the President's discretionary powers exercised through EO.
Originally published by ThisDay Lawyer, 24 June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.