By Pastor Osagie Ize-Iyamu, Esq.
As Adams Oshiomhole celebrates lavishly his seven years as Governor of Edo State with all the resources and propaganda machinery available to him, Edo people are bitterly mourning the wasted years, hopes and resources. Some days ago the civil society under the platform of Joint Action Force (JAF) organised a massive public demonstration around the streets of Benin protesting over the government misrule, lawlessness and multiple arbitrary taxation. They particularly frowned against the Land Use Charge Law or property tax which they decried was not only illegal but was also punitive and ill timed. We intend in this post to look at the legality of this law and determine if indeed the State government is right to enforce it.
The Land Use Charge Law was signed into law by Governor Oshiomhole on the 7th December, 2012. Its central Focus may be gleaned from its long title which stipulates that it is “a law to make provision for the consolidation of all land based rates and charges payable in Edo State into a single charge to be called land use charge, to make provision for the levying and collection of charge and for purposes connected therewith”. However, a careful perusal of all its 27 sections reveals that rather than being a law “for the consolidation of all land based rate and charges” as claimed in its long title, the law is simply focused on usurping the constitutional functions of local government areas to levy tenement rate on privately owned houses in their respective areas and conferring the functions on the State government. This usurpation is obvious from the provision of section 3(1) of the law which state thus “for the purpose of this law, each local government area in the State may delegate to the State, by written agreement, its functions with respect to the collection of rates and the assessment of privately owned houses or tenement for the purpose of levying such rates as may be prescribed under this law.”
The Land Use Charge Law is patently unconstitutional for reason that the provision of section 3(1) sited above is clearly in conflict with paragraph one. (j) Of the fourth schedule to the constitution of the Federal Republic of Nigeria, 1999 which paragraph expressly confers local government areas with the functions to assess privately owned houses or tenement for the purposes of levying such rates as may be prescribed in a law made by the house of Assembly of a State. The functions conferred on the local government area by the constitution is sacrosanct and can neither be casually taken away, as the land use charge law purports to do, nor delegated by any local government as the law seems to require of each local government area. In Bamidele v. Commissioner of Local Government (1994), the court held, amongst others, that “if a public body, such as local government in this case, is entrusted with certain powers by statute, it has the duty to perform it. It cannot be deprived from it nor can he surrender it”. It is significant to note that the functions imposed by the constitution which Edo State government purports to usurp or requires local government areas to delegate to it, is even of higher legal nature than statutory power which was the issue in the Bamidele case. Therefore, having regards to the supremacy of the constitution as provided in section 1, voiding any law which conflicts with a constitutional provision, the Edo Land Use Charge law is a worthless piece of legislation being in conflict with the unambiguous provision of the constitution conferring local government areas with exclusive function over tenement rates.
As further proof of his increasing dictatorial propensity, the State governor Adams Oshiomhole has threatened a number of measures against private property owners who refuse to pay the land use charge. One of such threatened measures is seizure of property belonging to such “defaulters”. The threat is in defiance of a number of pending legal actions challenging the legality of the law itself, notable among which is in the case of Oriane Akere, Esq. & others v. Attorney General of Edo State pending before the Edo State High Court of justice. In the suit, the claimants are seeking sundry reliefs against the Edo State Government including a declaration that the land use charge law is unconstitutional, null and void and an order of perpetual injunction restraining the State government from giving effect to the law. While threatening to proceed with enforcement of the disputed law despite the suit, the State government claimed at a time that it was not aware of the suit; when confronted with the fact that government had filed and taken steps in the suit, it somersaulted by asserting rather disingenuously that there was no injunctive order against the government to forestall the enforcement of the disputed law. In a plethora of decided cases, the supreme court of Nigeria has warned against a situation whereby a party which has submitted to a judicial proceeding turns around to take step, while the proceeding is still before the court, which has the implication of compromising the final determination of the suit. For instance, in Ojukwu v. Lagos State (1986), the Supreme Court held that Lagos State government acted illegally when it ordered caterpillars into the property of Chief Odumegwu Ojukwu at NO. 29, Queens Drive, Ikoyi, Lagos while the parties were awaiting the outcome of the suit still pending at the high court of Lagos State over ownership of the said property. In light of this decision alone, the government’s claim that it has not been restrained by an injunctive order from enforcing the law flies in the face of judicial logic. The Attorney General of Edo State who is party in the pending suit against the State government and who is the chief legal adviser of the State duly recognised by the constitution, should pick up the courage to advice government to await the outcome of the suit rather than threatening to take precipitous actions in the guise of enforcing the disputed legislation.
Assuming we are to concede without agreeing that the State government can take away the functions of levying tenements or property charge from the local government area and appropriate it, a careful reading of the land use charge law exposes the very abysmal quality of those administering the government at this point in time. In particular, the quality of legal advice in government is at its best mediocre. This is manifest from the provision of section 9 (1), (2) and (3) of the legislation which virtually exempt all conceivable property from the land use charge. Particularly laughable is section 9 (1) (i) which exempt family compounds from the scope of payment from land use charge. A simple literal interpretation of “family compound” would mean where a family lives. There is hardly any compound or house which is not occupied by a family in the State, whether or not rented. If the government meant to gain revenue through the legislation, the low level quality of legal draftsmen which the State seems to suffer from at this moment has made nonsense of that objective.
It is obvious however that the Edo State Land Use Charge Law is a product of creeping lawlessness and authoritarianism in the State which every right thinking citizen of the State should condemn in the strongest terms possible. While the canvassers of this law pretends that the targets of this law is the rich and those in G.R.A., we have seen a demand notice of a dilapidated mud house/family inheritance on forestry road, Benin City being asked to pay N363, 317.76 which is callous, insensitive and oppressive. Government must not become anti people or forcefully extort from her citizenry because of their profligacy. We again urge the government to retrace its steps and let the people lead.