LG Cannot Delegate Constitutional Powers To State Govt – Court Declares

A Benin High Court in Edo State has ruled that no local government is empowered by law to delegate its constitutional powers and functions to a State government, and as such the Court declared the relevant provisions of the Edo State Land Use Charge (LUC), Law, 2012 which empowered the Edo State government to collect taxes on behalf of the local government based on a written agreements between the local govt. and the state govt, as unconstitutional, thus, null and void.

As gathered by Theliberationnews, this ruling was given in the case Chief Ferdinand SAN v. Edo State Geographic Information Service (EIGS) & Ors. Suit no: B/99/2021, wherein the claimant’s case was that the defendants had served on his chambers at Christiana Orbih Drive, by 84, Boundary Road, behind G.R.A., Benin City a Land Use Charge Demand Notice requesting the claimant to pay the sum of Three Million, Three Hundred and Seventy Three Thousand, Seven Hundred and Nineteen Naira, Ninety Five Kobo to the defendants as land use charge for the period of 2016-2021 for a property at No. 66 84, Boundary Road, behind G.R.A., Benin City which doesn’t belong to the claimant.

According to the defendants, the property was formerly No. 66 but had been renamed No. 84, but the claimant countered that the property had been No. 66A and not No. 66 as claimed by the defendants.

The claimant instituted the case via an originating motion wherein he asked the Court to determine whether in light of Section 7(1) and (5) of the Constitution as well as Par. 1 of the 4th Schedule of the Constitution, the LUC Law, 2012 of Edo State is not unconstitutional, invalid, null and void and whether in light of the above listed sections of the Constitution, the defendants are not bereft of power to impose land use charge on the claimant’s privately owner property at Christiana Obrih Drive, 84 Boundary Road, behind G.R.A., Benin City.

Arguing his case, the claimant counsel K.O. Obamogie Esq submitted that by the Provisions of the Constitution, there were 3 tiers of government: Federal, State and Local Governments, and that by virtue of constitutional provisions and judicial precedents meant to protect the Federal State nature of Nigeria, no arm of government is allowed to usurp the powers of any other arm of government. He also submitted that par. 1 of the 4th Schedule of the Constitution provided for the functions of the Local government, one of which was the collection of levies and rates on privately owned houses and as such the Edo State LUC law, 2012 which allowed the state government to collect the such levies and rate was a violation of the Constitution and therefore null and void.

The Claimant’s counsel went on to submit that the Local government cannot delegate its powers to the state as this would undermine the constitution.

Thus, the Obamogie Esq submitted that in lieu of this, the defendants were bereft of powers to issue a land use charge demand notice to the claimant’s privately owned property.

Countering the arguments of the claimant and arguing their case, the defendants’ counsel, Mrs. V. U. Adeleye (Director) submitted that the Edo State LUC, Law, 2012 was not in violation of the relevant provisions of the constitution as it is not just a law for the collection of tenement rate but a consolidation of all land based rates and charges on landed or real properties in Edo State as deduced from its preamble.

According to Thenigerialawyer, Adeleye Esq, submitted that the Edo State government was only collecting the rates on behalf of the local governments and would be remitting same to the account opened for the local government. The defendants submitted that this was meant to back the collaboration between the state government and the 18 local governments, and thus, the defendants had powers to issue a LUC demand notice to the claimant.

The defendants argued further that supposing but not conceding the law was in violation of the Constitution, it was not in the interest of justice that the entire law be struck out, thus it enjoined the court to apply the blue pencil rule.

Giving judgement, Hon. Justice P. A. Akhihiero, on issue one held that from par. 1 of the 4th schedule of the Constitution, it was the power of the local government to collect levies and tenement rates in a state, and thus it would be an ouster of the powers and functions of the state government to seek to perform the functions of the local government councils, which was what the Edo State Government had done by virtue of section 12 of the LUC Law, 2012, Edo State which made the Edo State IRS the collection agent. The Court relied on the case of Knight, Frank & Rutley v. A. G Kano.

Furthermore, the Court ruled that by virtue of s. 7 of the Constitution and relevant judicial precedents, the local government was an established tier of government and on the question whether it can delegate its powers, the Court relied in the case of Bamidele v. Commissioner of Local Govt. and ruled thus: “it is evident that the local government councils in Edo State are by the constitution empowered to levy, assess and collect tenement rates on residential premises within area of jurisdiction pursuant to the law made by the House of Assembly. Such constitutional power or duty cannot be derogated by agreement or by any other statutory provision.” In lieu of this, the Court declared that the Edo state LUC, Law, 2012 which seeks to delegate the local govt powers was null and void to the extent of its inconsistencies.

The Court in applying the blue pencil rule, reasoned that the purpose for applying the rule was to determine if after striking the inconsistencies provisions of the law, the law had become redundant, thus determining if the entirety of the law would be declared null and void or just only the inconsistencies. The court went on to hold thus:

“I find the following sections that must be struck down for reasons stated by them namely: Section 3(2) – Delegation of functions by each local government council – (it amounts to usurpation and thus completely null and void); section 5 – property assessment after delegation (it amounts to usurpation and thus completely null and void); section 18 – land use collection fund (it amounts to usurpation and thus completely null and void); section 24 – application of other laws (it amounts to usurpation and thus completely null and void); section 27 – interpretation: the following two items “Collection Authority” & “Net Land Use Charge” (they are in furtherance of the delegation and usurpation).”

The court resolved the issue in partial favor of the claimant and declared part of the law inconsistent.

On issue 2, the court ruled that having declared the relevant provisions of the law inconsistent, the defendants were bereft with powers to issue a LUC demand notice on the private property of the claimant on Christiana Obrih Drive 84, Boundary Road, behind G.R.A., Benin City.

The court went on to award the sum of N200,000 as cost in favor of the claimant.