THE VAT ACT AND THE EXPESSIO UNIS ALTERIUS EXCLUSIO EST RULE OF THE INTERPRETATION: CAN THE VAT ACT SURVIVE?
By Ogechi A. Ngbaka Esq, Attorney at Law
The VAT conundrum has been heated over in recent time in the legal as well as political arena. Not only is it legally and politically engaging, it has also, economic underpinnings. The question is, who is legally entitled to collect Value Added tax (VAT), the federal government or the state government? Many have written, brilliant minds have canvassed their arguments to support or refute either of the two opposing positions. This article seeks to address the raging issue from a different perspective, that is, applying the expessio unis alterius exclusio est rule of constitutional interpretation, whether the VAT Act (now amended) enacted by the National Assembly can stand/survive the scrutiny of that rule of interpretation.
The National Assembly pursuant to its Constitutional powers enacted the VAT Act and empowered the Federal Government, through the Federal Inland Revenue Service (“FIRS”) to collect value added tax. This was recently challenged and the decision of the Federal High Court in Attorney General, Rivers State v Attorney General of the Federation and the Federal Inland Revenue Service does not only go to strip the National Assembly (“the NA”) of constitutional powers to make law for collection of VAT, it alters the tax regime in Nigeria in no slight way.
The purport of this article is to examine, in light of the recent arguments and the recent decision of the Federal High Court sitting at Port Harcourt, whether the VAT Act as enacted by the NA empowering the FIRS to collect value added tax, the NA had the constitutional power to so enact. This is done applying the expessio unis alterius exclusio est rule of interpretation.
RELEVANT CONSTITTUTIONAL PROVISIONS
The legislative powers of the Federal Republic of Nigeria are vested in the National Assembly for the Federation. Further, subsection (2) of Section 4 provides that the NA is to exercise its powers with respect to matters included in the Exclusive Legislative List. This power is only exercisable by the NA and expressly excludes the Houses of Assembly of States.
Aside the Exclusive List, the NA is also empowered to make laws in respect to items listed in the Concurrent Legislative List. This power it shares with the State Houses of Assembly.
The Exclusive Legislative List
Item 58. Stamp duties
Item 59. Taxation of incomes, profits and capital gains, except as otherwise prescribed by this Constitution (highlighted by me for emphasis).
One notes with distinct interest, the portion of Item 59 “except as otherwise prescribed by this Constitution” and observes that no where in the Constitution is there an otherwise prescription or provision to include VAT as a subject the NA could legislate on.
Concurrent Legislative List
Items 7 and 8 of the Concurrent Legislative List, Part II of the Second Schedule provides-
- In the exercise of its powers to impose any taxes or duty on-
(a) capital gains, incomes or profits of persons other than companies; and
(b) documents or transaction by way of stamp duties; the NA may subject to such conditions as it may prescribe, provide that the collection of any such tax or duty or the administration of the law imposing it shall be carried out by the Government of a State or other authority of a State
- Where an Act of the NA provides for the collection of tax or duty on capital gains, incomes or profit or the administration of any law by an authority of a State in accordance with paragraph 7 hereof, it shall regulate the liability of persons to such tax or duty in such manner as to ensure that such tax or duty is not levied on the same person by more than one State.
Section 4, subsection (7) of the 1999 Constitution (as amended) provides thus:
4(7) The H of A of a State shall have power to make laws for the peace, order and good government of a State or any part thereof with respect to the following matters, that is to say-
- Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
THE EXPESSIO UNIS ALTERIUS EXCLUSIO EST RULE OF INTERPRETATION
The phrase, expessio unis alterius exclusio est is Latin which means the express mention of one person or thing is the exclusion of another. The rule has been applied in plethora of cases in interpreting laws and documents.
The rule is an established principle in our jurisprudence.
In Ugo-Ngadi v FRN (2015) LPELR-24824 (CA) the court stated
“it is trite law, based on the principle of “expressio unis exclusio alterius”, that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same issue”
Per Abimbola Osarugu Obaseki-Adejumo, JCA (pp21-22, Paras B-D)
In Bagwai & Anor v Goda & Ors (2010) LPELR-3842 (CA), the Court of Appeal stated per Mohammed Lawal Garba, JCA
“one cardinal principles of interpretation of statutes is to exclude what is not in the statute, expressed in Latin as “expression unis exclusion alterius” meaning what is not stated is deemed excluded” (pp 23-24 paras B-B)
A careful reading of the provisions of the 1999 Constitution (as amended) as reproduced in the preceeding portions of this article, one would strain his eyes to see the mention of VAT. But no matter how hard one looks, you will never find it there; it is excluded. The Constitution mentions, income, capital gains, profit tax but no mention of VAT. One wonders if the framers of the Constitution were ignorant of the existence of that kind of tax? Of course not. Only one explanation can be proffered for the exclusion- it was not intended that the NA should have power to legislate on VAT.
The Constitution is the grandmaster of all laws and enjoys preeminence. Thus, any other law not in conformity with the Constitution has but one fate, is rendered void. One can not read in what is not there. Value added tax was expressly and unambiguously excluded and the NA lacks power to legislate on same. This without doubt clothes the Houses of Assembly of States to legislate on the subject.
 Section 4 subsection (1) 1999 Comstitution of the Federal Republic of Nigeria (as amended)
 Cap V LFN, 2004. Amended by the Finance Act, 2021
 Attorney General, Rivers State v Attorney General of the Federation and the Federal Inland Revenue Service. Suit No: FHC/PH/CS/149/2020
 The National Assembly though had not the constitutional power ab initio
 Section 4 (1), CFRN
 See subsection (3)
 Subsection (4) (a)
 Second Schedule, Part I CFRN
 Second Schedule, Part II CFRN
 E. Hilton Jackson, Latin for Lawyers, (3rd edition) page 146. Universal Law Publishing Co, New Delhi, India
 Section 1 (1) CFRN
 Subsection (3)
 See section 4 (7) (a) CFRN