…Declares N19m fee on NIPCO Plc void
By Sodiq Adelakun
In a landmark ruling, the Federal Capital Territory (FCT) High Court, under the stewardship of Justice Olukayode Adeniyi, has declared that the Abuja Environmental Protection Board (AEPB) lacks the legal authority to levy fines or charges for sewage and refuse disposal on corporate entities within the Abuja Municipal Area Council (AMAC).
The court’s judgment was in response to a legal challenge by NIPCO Plc against the AEPB, which had imposed a hefty N19 million levy on the company for sewage and refuse disposal services in the FCT.
Justice Adeniyi’s decision to invalidate the levy was based on the finding that the AEPB Act conflicted with the constitutional duties and functions of AMAC regarding such levies and collections.
He emphasized that AMAC, established by the constitution, holds precedence over the AEPB, which was created by an Act of Parliament.
Recall that NIPCO Plc had approached the court contesting AEPB’s authority to demand payment for sewage and refuse disposal for the period from 2015 to 2021, a fee they claimed had already been paid to AMAC.
In the suit, CV/3493/2022, the company sought clarification on whether the AEPB, being a legislative creation, could legitimately perform functions and exercise powers that the 1999 Constitution (as amended) specifically confers upon AMAC.
Represented by their lawyer, Chief Paul Obi, NIPCO Plc raised critical issues for the court’s determination. These included the constitutionality of the AEPB’s powers to impose and collect levies for sewage and refuse disposal under the AEPB Act, which the company argued was unconstitutional, null and void, and without any legal effect.
The court’s decision has significant implications for the administration of levies and fines in the FCT, potentially reshaping the financial obligations of corporate bodies in the region and reinforcing the constitutional autonomy of municipal area councils.
The claimant’s counsel had submitted that AMAC is the bona fide body empowered by the constitution for the collection of refuse and waste disposal levies, within the Abuja Municipal Area Council and not AEPB and as such, all the “demand notices” issued by AEPB to the claimant were invalid since the defendant lacked the legal competence to issue them ab initio.
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 C.O 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.
Okoro further contended that the Court of Appeal, Calabar Division, had nullified Paragraph 7, Part Ill of the Schedule to the Taxes and Levies (Approved List of Collection) Act, Laws of the Federation of Nigeria, 2004, thereby, abrogating the rights of the Area Councils to collect sewage and refuse, adding that, it is the only body empowered by law to collect payment of waste disposal fees from the beneficiaries of such services in the FCT; and thus urged on the court to dismiss the claimant’s action.
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, and made available to newsmen, 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 the same to any other body, establishment or institution; regardless that the 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.
“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,” the judge declared.
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 authorised 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 authorise 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, refused to award Fagbemi N20 million as general damages.