You Lack Powers To Collect Levy On Refuse Disposal, Court Tells Abuja Environmental Board
..Declares Null And Void N19 Million Demand Notice On NIPCO
By Frederick Wright
Justice Olukayode Adeniyi of a High Court of the Federal Capital Territory FCT), has declared that the Abuja Environmental Protection Board (AEPB) does not have the legal powers to impose any levy or fine for sewage and refuse disposal on any corporate body within Abuja Municipal Area Council (AMAC).
Justice Adeniyi, who made the declaration in a judgment he delivered, subsequently voided a total sum of N19 million the AEPB imposed on NIPCO Plc as levy on sewage and refuse disposal in the FCT.
The court premised its decision on the grounds that the AEPB Act conflicts with the duties and functions of AMAC in respect of sewage and refuse disposal levies and collections, adding that AMAC being a creation of the constitution is superior to AEPB, created by an Act of Parliament.
The claimant had dragged the Abuja agency to court, challenging the powers of the AEPB to demand payment for sewage and refuse disposal, from 2015 to 2021, which the claimant said had been “dutifully paid” to AMAC.
The claimant in the suit marked: CV/3493/2022, had asked the court to determine amongst others whether the defendant as a body created by an Act of the National Assembly, can validly perform the exact functions and exercise the powers conferred on the Abuja Municipal Area Council (AMAC) by Section ( 7) of the 1999 Constitution.
The claimant in arguing the suit had through its lawyer, Chief Paul Obi, raised two issues for determination, which include: “Whether in the circumstances of this case and considering the clear provisions of the 1999 Constitution (as amended), and Sections 30 (4) and 6 (1) (a) and (b) of the Abuja Municipal Protection Act 1997, which sections purport to confer powers and jurisdiction on the defendant to impose and collect sewage and refuse disposal levies on the Plaintiff or any other person or corporate bodies whatsoever in Abuja Municipal Area Council, FCT is unconstitutional, null and void and of no effect.”
He therefore urged the court to resolve the two issues in favour of the claimant and grant the reliefs sought.
On its part, the AEPB, represented by CO Okoro, who raised a sole issue for determination, submitted that by virtue of paragraph 7, Part Ill of the Schedule to the Taxes and Levies (Approved List of Collection) Act, Laws of the Federation of Nigeria, 2004, Area Councils in Federal Capital Territory (FCT) were statutorily imbued with the right to the collection of sewage and refuse disposal fees.
But Justice Adeniyi in a judgment dated February, 21, 2024, disagreed with the AEPB, stressing that, “by virtue of the provision of Part Il of the First Schedule to the Constitution, it is not in question that the Abuja Municipal is one of the constitutionally established Area Councils in the FCT.
“This point having been clearly made, it becomes apparent that by virtue of the provision of paragraph (1)(h) of the Fourth Schedule to the Constitution, it is the main functions of AMAC to make provision and maintenance of public conveniences, sewage and refuse disposal within the area constituting its territorial boundary of the Abuja Municipal Area.
“That is what the Constitution provides and I so hold”.
The judgment contained in a Certified True Copy (CTC) dated March 5 , also held that with regards to the highlighted provisions of the Constitution, the National Assembly lacked the legislative vires to derogate or divest from the Constitution the main functions of the AMAC and confer same to any other body, establishment or institution; regardless that that other body, establishment or institution, is a creation of statute made by the National Assembly itself.
“Even though the National Assembly is empowered to confer additional functions on the Area Councils within the FCT as envisaged by the provision of Section 7(5) of the Constitution (as amended), but cannot concurrently confer functions the Constitution already preserved for the Area Councils on any other institution, let alone the Abuja Environmental Protection Board, vide the AEPB Act.
“To put it metaphorically, the provisions of the AEPB Act cannot stand toe to toe with the constitutional provisions on the same subject matter, As such, to the extent of the duplication of the functions of the AMAC preserved by paragraph (1)(h) of the Fourth Schedule to the Constitution to the Defendant by the provisions of Sections 30(4) and 6(1)(a) and (b) of the AEPB Act, to that extent, the said provisions of the AEPB Act are unconstitutional and void and must be so declared in accordance with the provision of Section 1(3) of the Constitution”, the court held.
“It is therefore in furtherance of its constitutional responsibility that the AMAC Environmental Sanitation and Prohibition of Indiscriminate Dumping of Refuse Silts and other Environmental Health Offences Bye Laws No. 4 of 2012 was made.
“As such, it cannot be said that AMAC lacked in capacity to perform its constitutionally preserved functions; and as such it is unlawful for the Defendant to hijack such functions, hiding under the void provisions of the AEPB Act and the decision of the Court of Appeal nullifying the Taxes and Levies (Approved List of Collection) Act, 2004. I, so hold.
Justice Adeniyi stated that despite the good intention for the enactment of the AEPB Act, its conflict with the Constitution, cannot, simply for reasons of its good motives, be recognized or enforced.
“On the basis of the foregoing analysis therefore, I have no hesitation to declare and I hereby declare that the provisions of Section 30(4) and Section 6(1)(a), (b)-and (c)(iv) of the Abuja Environmental Protection Board Act 1997, which are held to be in clear conflict or inconsistent with the provisions of paragraph (1)(h) of the Fourth Schedule to the Constitution, as unconstitutional, null, void and of no effect whatsoever.
“In the final analysis, I hereby resolve the questions set down for determination in favour of the claimant. Accordingly, the claimant’s action succeeds. I hereby grant the reliefs claimed in the Originating Summons, save for reliefs (6) and (7) which are hereby refused.
The reliefs granted include: A Declaration that the Abuja Municipal Area Council (AMAC) is the only body constitutionally empowered and authorized to impose or levy sewage and refuse disposal levies or fines on any person or corporate body in Abuja Municipal Area Council FCT.
“A Declaration that the Demand Notices for the total sum of N19,400,553.36 imposed on the Plaintiff by the Defendant as sewage and refuse disposal levies on fines for the period 2015 to 2021 or for any period whatsoever are ultra vires the powers of the Defendants (sic), and they are therefore unconstitutional, null and void.
“A Declaration that the Defendant had no legal powers to impose any levy or fine for sewage and refuse disposal on the Plaintiff or any corporate body within Abuja Municipal Area Council.
“A Declaration that Section 30(4) and Section 6 (1)(a) and (b) of the Abuja Environmental Protection Board Act 1997 purporting to authorize or confer powers on the Defendant to impose and collect levy for sewage and refuse disposable from the Claimant or any other persons or corporate bodies within Abuja Municipal Area Council is unconstitutional, null and void and of no effect whatsoever.
“A perpetual injunction restraining the Defendant either by itself, officers, agents, employees, preview or through anybody whatsoever from imposing, levying and or collecting sewage and refuse disposal levies from the Plaintiff or from any person or corporate body within Abuja Municipal Area Council”.
The court however, declined to grant the request of Fagbemi N20 million as general damages.
