The crisis in the operations of the Federal Inland Revenue Service has intensified as a Lagos-based lawyer, Solomon Oyakhilome, has sued the Nigerian government challenging the appointment of Kabiru Mashi as acting chairman of the agency.
Joined in the suit, which also seeks the removal of Mr. Mashi, are the Attorney General for the Federation, Mohamed Adoke, the Minister of Finance, Ngozi Okonjo-Iwela, Mr. Mashi and the FIRS.
The case has been assigned to Justice Okon Abang of the Federal High Court, Lagos.
The controversy over the appointment of an executive chairman of the FIRS started shortly after the former occupant of the office, Ifueko-Omoigui Okauru, stepped down.
When she stepped down in April 2012, the presidency immediately declared the position vacant.
Mr. Mashi was appointed acting chairman while the process of appointing a substantive chairman started in September, 2012, when the Ministry of Finance published advertorials in national newspapers calling on interested persons to apply.
The action was however dogged by controversy with some critics querying the propriety of appointing an external Consultant, Phillips Consulting, to oversee the selection process.
Many had argued that it was the prerogative of the president to appoint the new chairman of the agency based on Section 3(a) of the FIRS Act, 2007.
However, on March 3, 2013, selected applicants were interviewed.
Mr. Mashi was not shortlisted and, was therefore not invited for interview.
Based on the report of the interview panel, Mr. Jonathan forwarded the name of Mfon Akpan, a chartered accountant and former Head of Audit in UK’s Barclays Bank, to the Senate for confirmation as executive chairman of the FIRS.
However, on November 29, 2013, the Senate rejected the nomination of Mrs. Akpan when some senators, mostly from the Northern part of the country, opposed her nomination.
The Chairman, Senate Committee on Drugs, Narcotics and Financial Crimes, Victor Lar, said Northern senators were opposed to the nomination of Mrs. Akpan as the FIRS boss in the spirit of federal character principle.
According to him, the longest serving Chairman of the FIRS, David Olorunleke, was from the Southwest, while the last occupant of the position, Mrs. Okauru, was from the South South-South/East zone.
He advised that Mr. Mashi, who is from the North, should be appointed substantive chairman in the spirit of federal character.
Mr. Mashi has served on acting capacity since April 2012 following the refusal of the Senate to confirm Mrs Akpan as substantive chairman of the organisation.
However, in an originating summons with number FHC/L/CS/1882/14, filled on December 3, 2014 before a Federal High Court, Lagos, Mr. Oyakhilome prayed the court to determine whether the appointment of any person into the position as chairman of the FIRS must substantially comply with the provisions of the FIRS Establishment Act, 2007.
The applicant also prayed the court to determine whether President Goodluck Jonathan, under the provisions of Sections 3(2a) and11 of the FIRS Act 2007 has the power to appoint Mr. Mashi or any other person to the office of the FIRS chairman pending the appointment and confirmation of the substantive chairman by the Senate.
Section 3 (a) of the law reads, “The board shall consist of the Executive Chairman of the Service who shall be experienced in taxation as Chairman of the Service to be appointed by the President and subject to the confirmation of the Senate.”
On the other hand, Section 11 of the Act reads, “The Executive Chairman shall- (a) be appointed by the President subject to the confirmation of the Senate; (b) be the chief executive and accounting officer of the Service; (c) be responsible for the execution of the policy and the day-to-day administration of the affairs of the Service; and (d) have cognate experience and skills in accountancy, economics, taxation, law and related fields.”
The lawyer also sought a determination as to whether the purported appointment of Mr. Mashi as the acting chairman of the FIRS is known to the enabling law.
Mr. Oyakhilome also asked the court to determine whether the control and administration of the FIRS are governed by the FIRS Act 2007.
Where the answer to the above question is in the negative, he prayed the court to determine whether the administration, management and control of the FIRS by Mrs. Okonjo-Iwela and Mr. Mashi without a properly constituted board is lawful.
He also sought a determination of whether the actions of Mrs. Okonjo-Iwela and Mr. Mashi in the daily operations of the FIRS is known to Sections 1,2,3,4 and 5 of the FIRS Act.
Upon the determination of the questions raised, Mr. Oyakhilome prayed the court to issue nine orders including a declaration that Mr. Jonathan has no power to appoint Mr. Mashi or any other person as acting chairman of the FIRS, pending the appointment and confirmation of a substantive chairman by the Senate.
“A declaration that the appointment of Alhaji Kabiru Mashi (3rd Defendant) as acting chairman of the FIRS is unlawful and completely at variance with the Federal Inland Revenue Service Establishment Act, 2007 and therefore ultra vires the powers of the President of the Federal Republic of Nigeria in line with the provisions of the Federal Inland Revenue Service Establishment Act, 2007,”a part of the orders sought by the applicant reads.
“A declaration that the continued stay in office of Alhaji Kabiru Mashi (3rd Defendant) as chairman of the Federal Inland Revenue Service in acting capacity for over two years is completely at variance with the Federal Inland Revenue Service Establishment Act, 2007, and therefore, null and void.
“A declaration that the activities of Alhaji Kabiru Mashi (3rd Defendant) and the Honourable Minister of Finance (2nd Defendant) in relation to their role as purported manager of the Federal Inland Revenue Service is illegal, unlawful and grossly in violation of the Federal Inland Revenue Service Establishment Act, 2007, their activities having not been done in compliance with the law.”
The applicant further sought an order directing Mr. Mashi to vacate pronto, the office of the FIRS chairman and another order compelling the president to commence the process of appointing a substantive chairman and board members for the tax agency.
Mr. Oyakhilome also sought an order restraining Mr. Jonathan from further appointing an acting chairman or substantive chairman of the FIRS without the approval of the Senate as contained in the relevant law.
The applicant further sought an order of the court for the attorney general for the federation to appoint an independent auditor to carry out a forensic examination of the operations of the tax agency since the appointment of Mr. Mashi as acting chairman and a publication of the audit report in three national dailies.
The spokesperson for the tax agency, Emmanuel Obeta, declined to speak on the matter, saying it would be sub judice.