IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ZONE 2 ABUJA FCT/HC/CV/1072/2011

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1 IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ZONE 2 ABUJA BEFORE HIS LORDSHIP: HON.JUSTICE D.Z. SENCHI COURT CLERKS: TSENYEN P. SALLAH COURT NUMBER: 25 DATE: 27/02/13 FCT/HC/CV/1072/2011 BETWEEN: NEXT LEVEL RESORT PLAINTIFF AND 1. ABUJA MUNICIPAL AREA COUNCIL DEFENDANTS 2. HON. MINISTER OF FCT JUDGMENT By an amended originating summons dated the 3 rd of July, 2012, the Plaintiff sought the determination of the following questions:- 1. Whether the 1 st Defendant have the legal authority to demand tenement rent for premises within the Abuja municipal Area Council. 2. Whether it does not amount to double taxation for the 1 st Defendant to demand for tenement rent for premise where the Plaintiff have paid tax to Federal Inland Revenue Service and ground rent for the premises to Hon. Minister of the Federal Capital Territory the 2 nd Defendant. 1

2 3. Whether the 1 st Defendant can charge tenement rate for the Plaintiff premises without any valid assessment of the premises. The Plaintiff also seeks the following orders:- 1. A declaration that the 1 st Defendant have no legal authority to demand for tenement rent from the Plaintiff in respect of his business premises at Plot No Masaka Close, Behind NAFDAC, Wuse Zone 7, Abuja. 2. An order setting aside the tenement rent of N755, 000,00 only levied against the Plaintiff as same was given without any assessment whatsoever. In support of originating summons is an affidavit of five (5) paragraphs duly sworn to by one Mr. Yahaya Ahmadu of No. 119/120, Anbeez Plaza Ndola Square, opposite Corporate Affair Commission Staff Gate, Wuse Zone 5, Abuja. Attached to the affidavit are five (5) exhibits marked A-E. In compliance with the rules of this Court, the Plaintiff s Counsel filed a written address. On service of the originating processes on the Defendants, on the 26 th of July 2012 and the 2 nd of August, 2012 respectively, the 1 st Defendant, Abuja Municipal Area Council filed a counter affidavit of six (6) paragraphs deposed to by one Isaac Mago, A law clerk in the Chambers of Karina Tunya SAN & Co, Solicitors to the 1 st Defendant. Learned Counsel for the 1 st Defendant also filed a written address in support of his counter affidavit. On service of the counter affidavit and the written address, learned Counsel for the Plaintiff filed a reply on points of law. The reply of the Plaintiff is dated the 2

3 18 th October, 2012 and filed on the 22 nd October, And it is in reaction to the 1 st Defendant s written address. The 2 nd Defendant also filed a counter affidavit of 12 paragraphs deposed to by one Saidu Abdulkadir of Legal Service Secretariat FCTA, Area 11 Garki, Abuja. Learned Counsel for the 2 nd Defendant also filed a written address in support of the counter affidavit. On the 5 th of December, 2012, the learned Counsel for the respective parties adopted their written addresses and the matter was then adjourned for judgment. ISSUE FOUR DETERMINATION BY THE PLAINTIFF. 1. Whether the 1 st Defendant have the legal authority to demand tenement rent for premises within the Abuja Municipal Area. 2. Whether it does not amount to double taxation for the 1 st Defendant to demand for tenement rent for a premise where the Plaintiff have paid tax to Federal Inland revenue Services and ground rent for the premises to Honourable Minister of FCT, the 2 nd Defendant. 3. Whether the 1 st Defendant can charge tenement rate for the Plaintiff premises without any valid assessment of the premises. Learned Counsel for the Plaintiff argued issue 1 and 2 together in his written address. In this regard Counsel submitted that the 1 st Defendant do not have any legal right to collect tenement rate within the Abuja Municipal Area Council. According to Counsel for the Plaintiff by virtue of section 297 (2) of the 1999 Constitution (as amended), all the Lands within the Federal Capital Territory is 3

4 vested in the Government of the Federal Republic of Nigeria. That the 4 th schedule of the 1999 Constitution (as amended) provides the main function of the local Government Council under items (j). Thus Counsel for the Plaintiff submitted that for the purpose of Making laws for the Federal Capital Territory it is vested on the National Assembly as if it is a State by virtue of section 299 of the 1999 Constitution (as amended). Learned Counsel for the Plaintiff contended that the National Assembly has the powers and authority to make laws for the Federal Capital Territory and they have not made any law on the rate to be paid as tenement rate and the issue of assessment does not arise (underlined is mine for emphasis). According to Counsel, the Constitution is supreme and should be obeyed in all respect. Counsel relied and cited:- EREKANURE V STATE (1993) 5 NWLR (pt 294) page 385 at 393, OYAWOLE V SHEHU (1995) 8 NWLR (pt414) page 404 at 493, OLOYO VEGBE (1983) ALL NLR 387 at 415. In view of the above, learned Counsel for the Plaintiff submitted that since the National Assembly have not made any law as it relates to the rates chargeable by the 1 st Defendant in respect of tenement rate, the 1 st Defendant would be incompetent and lack necessary authority to demand tenement rates from the Plaintiff (underlined is mine). He further stated that the 1 st Defendant is established under section 7 (1) of the 1979 Constitution (as amended) and the functions of the 1 st Defendant is stated in the 4 th schedule of 1999 Constitution (as amended). However, Counsel submitted on behalf of the 1 st Defendant that the same Constitution does not define or set out how the functions shall be 4

5 performed or discharged. Counsel relied on the case of GUNKI V DORO (1992)3 NWLR (Pt228) page 190 at 224. In conclusion on issues 1 and 2, he urged me to resolve the two issues in the Plaintiff s favour. ISSUE THREE In respect of this issue, learned Counsel for the Plaintiff submitted that the 1 st Defendant sent an inspection notice to the Plaintiff that they were coming to inspect the property on the 2 nd November, The 1 st Defendant did not inspect the property and later sent an assessment Notice that the property was inspected on 1 st day of November, Thus, Counsel submitted that the rate sent to the Plaintiff is speculative and without any basis whatsoever. In conclusion, Counsel urged me to resolve issue no. three in favour of the Plaintiff. The 1 st Defendant, as I said earlier filed also its written address. After a brief introduction of the Plaintiff s three issues for determination and the two reliefs sought, learned Counsel for the 1 st Defendant, Chief Karina Tunya SAN formulated two issues for determination as follows:- (1) Whether or not the 1 st Defendant herein AMAC has the legal authority to demand and collect Tenement rent for premises or residents within AMAC which include the Plaintiff. (2) Whether or not assessed Tenement Rent demanded from the Plaintiff is taxation or indeed amount to double taxation. 5

6 ISSUE ONE. The Learned Silk submitted on behalf of the 1 st Defendant that the power of the 1 st Defendant to issue and or demand for the payment of Tenement Rent from residents within its jurisdiction including the Plaintiff is an authority clearly conferred on it as a Local Government/and or Area Council established under the 1999 Constitution of the Federal Republic of Nigeria and also other enabling statutes. Learned Counsel referred me to section 7 (1) of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. Learned Counsel submitted that section 7 (1) has been given judicial vent in the cases of ATT. GEN PLEATEAU STATE V GOYO (2007) 16 NWLR (pt1059) page 57 at 92-93, ATT.GEN BENUE STATE V UMAR (2008) 1 NWLR (pt1068) page 311 at The learned Silk submitted that the 1 st Defendant herein being an Area Council has also been incorporated into the meaning of a local Government, consequently section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria (which is the interpretation section) defined Local Government Area to include an Area Council. He stated that the functions of a local Government are copiously listed in section 1 of the 4 th schedule to the 1999 Constitution of the Federal Republic of Nigeria in particular sub-section (A) (K) and in reference to the present case section 1(a),(i), (ii),(b) and (j). Learned Counsel for the 1 st Defendant then submitted that a community reading of the relevant sections in the 4 th schedule shows that the 1 st Defendant is effectively clothed with the constitutional power to demand and collect tenements from the Plaintiff and particularly in fulfillment of section 1 (a) (i) of the 4 th schedule. 6

7 Further, learned Counsel for the 1 st Defendant referred me to sections 299 and 303 of the 1999 Constitution (as amended) and submitted that it is pursuant to this power of the National Assembly aforesaid that gave it the power to legislate for the FCT as if it were one of the states of the Federation under section 299 of the Constitution, 1999(as amended). Counsel submitted also that the Federal Capital Territory Act Cap F6, Laws of Federation of Nigeria (LFN), an act of the National Assembly made specifically applicable in the FCT the Niger State Local Government Edict (now Act) of 1976, as the applicable Local Government Law in the Federal Capital Territory. Learned Counsel for the 1 st Defendant submitted that it is pertinent to note that this Niger State Local Government Edict is now contained in vol 3L-351, Laws Of FCT enforce on the 31 st day of December, 2006 together with certain subsidiary legislation made under and certain Federal Acts containing Acts of the FCT. In view of the above, Counsel for the 1 st Defendant submitted that any law specifically made applicable to the FCT by the FCT Act aforesaid applies and have the force of law throughout the FCT being an existing law under section 315 of the Constitution of the Federal Republic of Nigeria, On the definition of existing law Counsel referred me to section 315 (4)(b) of the 1999 Constitution. Hence therefore, learned Counsel for the 1 st Defendant submitted that the Niger State Local Government Edict of 1976 and its application to the FCT vide the provisions of the FCT Act Cap F6. Laws of the Federation of Nigeria 2004, is within the contemplation of section 315 of the 1999 Constitution and therefore applicable to the FCT as existing law. 7

8 Learned Counsel for the 1 st Defendant also referred me to section 52(1), 55,55(v) and 56 of the Local Government Act 1976 and submitted at paragraphs 00.7 that exhibit A was issued by the 1 st Defendant to the Plaintiff in accordance with the provisions of a bye law validly made by the 1 st Defendant pursuant to the provisions of sections 52,55 (V) and 56 (S) of the Local Government Act, 1976 made applicable with FCT vide the FCT Act. Finally learned Counsel for the 1 st Defendant urged me to answer issue one in the positive that the 1 st Defendant is both Constitutionally and statutorily empowered to demand and collect tenement rent from the Plaintiff and indeed all other persons with Abuja Municipal Area Council of the FCT. ISSUE TWO Learned Counsel for the 1 st Defendant submitted that exhibit A assessed and issued in accordance with the provisions of the Defendant s Bye Law i.e Abuja Municipal Area Council Bye Law 2001 on the Plaintiff for the payment of tenement rent is not a demand for the payment of tax. According to Counsel, this law has nothing to do with the imposition of tax and indeed not a tax legislation whatsoever and howsoever. However, Counsel for the 1 st Defendant conceded that the Plaintiff being a corporate entity is under a duty to pay tax to FIRS in accordance with extant laws. At paragraphs of the 1 st Defendant written address, learned Counsel submitted that in assessment of taxes vis-à-vis the imposition of taxes on companies, assessment is based either on the ascertainable profit of the company at the end of its financial year or vide other modes such as Best of Judgment (BOJ) self assessment, minimum profit assessment modes in the event that the annual 8

9 profit of a company is in ascertainable. Learned Counsel referred me to Companies Income Tax Act Cap C2 LFN 2004 in particular sections 9 (1) and 40 (1) of Companies Income Tax Act Cap (CITA). Thus, learned Counsel submitted that the payment demanded for tenement rate by the 1 st Defendant cannot be by any stretch of imagination amount to an imposition of tax as it was not in any way directed at the profit of the Plaintiff company or tailored towards the adoption of other forms of assessment of taxation on the Plaintiff. Learned Counsel referred to the case of BAMAK PHARMACY & STORES LTD & ORS V ABUJA MUNICIPAL AREA COUNCIL (unreported) Appeal NO. CA/A/256/07 delivered on 18 th March In conclusion on issue two, learned Counsel submitted that since the act of the Plaintiff is an exercise in pursuance of a duty donated to it by the Constitution of the Federal Republic of Nigeria. 1999, vide section 7 and particularly Defendants, functions as contained in the 4 th schedule, Counsel urged me not to restrain a constitutional duty imposed on the Defendant. He relied on the case of PETER V OKOYE (2003) 3 NWLR (pt 755) page 529. Learned Counsel for the 1 st Defendant finally urged me to dismiss this suit for lacking in merit. The 2 nd Defendant also filed a 12 paragraph counter affidavit deposed to by one Saidu Abdulkadir, a Civil Servant of Legal Services Secretariat, and FCTA. In support of the Counter affidavit of the 2 nd Defendant, FCTA. In support of the counter affidavit of the 2 nd Defendant, learned Counsel for the Defendant filed a written address in compliance with the rules of this Court. Two issues for determination were formulated by Counsel for the 2 nd Defendant as follows:- 9

10 (1) Whether there is a reasonable cause of action disclosed against the 2 nd Defendant in this suit. (2) Whether the Plaintiff is entitled to its claim in this suit. ISSUE ONE Counsel for the 2 nd Defendant submitted that a claim that a suit discloses no reasonable cause of action is usually premised on the fact that the suit was commenced without an actionable wrong against the Plaintiff which the Court can be called upon to adjudicate. According to Counsel to determine whether or not a suit discloses a reasonable cause of action, one has to look at the originating summons and the supporting affidavit so as to verify what is the alleged wrong giving rise to the suit. Counsel relied on the case of AJAYI V MILITARY ADMINISTRATION, ONDO STATE (1997) 5 NWLR (pt504). Counsel for the 2 nd Defendant contended that from all the paragraphs of the affidavit in support of the amended originating summons and reliefs in this suit there is no compliant against the 2 nd Defendant neither is there any single claim against him. Counsel therefore submitted that the facts as contained in the affidavit in support of originating summons taken together did not constitute any reasonable cause of action against the 2nd Defendant. He relied on the case of SPDC (NIGERIA) LTD V X.M. FED LTD (2006) 16 NWLR (pt 1004) page 1 and 9 at 201. Further, Counsel for the 2 nd Defendant submitted that in law a Plaintiff cannot sue a Defendant against whom he has no cause of action. Counsel referred me to the case of action. Counsel referred me to the case of AMALGAMATED TRUSTEES LTD V NIMB LTD (2001) 1 NWLR (pt694) page 236 at

11 Counsel submitted on behalf of the 2 nd Defendant that throughout the depositions in the affidavit in support, the Plaintiff did not show the wrongful act of the 2 nd Defendant that gave rise to this suit and therefore this Court lacks jurisdiction to hear and determine same. Counsel relied on the case of ATT.GEN. FEDERATION V ABUBAKAR (2007) 10 NWLR (pt 1041) page 1 at 121. In conclusion learned Counsel for the 2 nd Defendant urged me to strike out the case as instituted against the 2 nd Defendant as no cognizable cause of action was disclosed against him. ISSUE TWO In respect of this issue, Counsel submitted that the 1999 Constitution of the Federal Republic of Nigeria in part ii of the first schedule and section 3 (6) and 303 therein listed the six Area Councils of the FCT. The system of administration was prescribed in section 7 of the same Constitution. Counsel for the 2 nd Defendant submitted further that the same 1999 Constitution had in section 318(1) defined local Government Area to include an Area Council while an Area Council was therein defined to mean each of the administrative area within the Federal Capital Territory Abuja. Thus, Counsel for the 2 nd Defendant submitted that by the combined provisions of sections 299 and 301 of the 1999 Constitution the FCT is treated like a State while the National Assembly makes law for the FCT and pursuant to which they enacted the FCT Act. Counsel referred to the cases of IBORI V OGBORU, (2005) 6 NWLR (pt920) page 102 at 116 & ATT.GEN. ABIA STATEV ATT. GENERAL OF THE FEDERATION (2002) 6 NWLR (pt763) page 264 at

12 Counsel also stated that by the provisions of section 7 (I) (J) of the 4 th schedule of the 1999 Constitution, the functions of a Local Government includes assessment of privately owned houses or tenements for purpose of levying such rates as may be prescribed by the House of Assembly of a state. He further stated that by the taxes and levies (approved list for collection) Act 1998 in part III therein provided for tenement rates amongst the taxes and levies collectable by the local Governments. Counsel relied and referred me to the case of KNIGHT, FRANK & RUTLEY V ATT. GEN. KANO STATE,(1998) 7 NWLR (pt556) page 1 at 37. Learned Counsel for the 2 nd Defendant also argued that the operative word in section 7 (1) (J) of the 4 th schedule to the 1999 Constitution is may which in this case is not mandatory but discretionary. Counsel relied on the case of AMASIKE V REGISTRAR GEN. CAC, (2010) 13 NWLR (pt1211) 337 at 399 He submitted that the prescription of the rates to be levied on tenements and houses by the House of Assembly of a State (in this case the National Assembly) is not mandatory as it is premised on the National Assembly deeming it necessary to so do and as such the absence of such prescription is not fatal. Counsel further submitted that by the provisions of section 7 (1)(J) of the 4 th schedule of the 1999 Constitution and sections 118 and 119 of the Niger State Local Government Act (applicable in the FCT) Cap L 405 Laws of the FCT, the collection of such rates by the Area Council will not be jettisoned simply because the National Assembly has not prescribed the rates of assessment. At paragraphs of the written address, Counsel for the 2 nd Defendant stated that the FCT Act is an Act of the National Assemble and the said Act has adopted the Niger State Local Government Act of He therefore submitted 12

13 that to grant the Plaintiff s relief will amount to an infringement of the provisions of the FCT Act as well as the 1999 Constitution. Further, at paragraph 5.16 of the written address, Counsel for the 2 nd Defendant submitted that without conceding that even if there is doubt as to the existence of a law or Act of the National Assembly stipulating the rates to be collected as tenement rate, since tenement rate is a tax, the Court ought to construe the matter in favour of the Defendants as it is revenue based. He relied on the case of F.B.I R V I.D S. LTD (2009) 8 NWLR (pt1144) page 615 at 639. In conclusion, Counsel urged me to dismiss this suit in its entirety for not only being frivolous but also lacking in merit. The Plaintiff s Counsel also filed Plaintiff reply to 1 st Defendant s written address on the 22 nd October, I will refer to the Plaintiff s reply which ought to be reply on points of law where necessary. In resolving this constitutional issue, the learned Counsel for the respective parties had formulated issues for determination in their respective written addresses. The Plaintiff s issues are:- 1. Whether the Defendant have the legal authority to demand tenement rent for premises within the Abuja Municipal Area Council. 2. Whether it does not amount to double, Taxation for the Defendant to demand for tenement rent for a premise where the Plaintiff have paid tax to Federal Inland Revenue Service and ground rent for the premises to Honourable Minister of the Federal Capital Territory. 3. Whether the Defendant can charge tenement rate for the Plaintiff premises without any valid assessment of the premises. 13

14 The 1 st Defendant on the other hand distilled the following sole issue for determination:- Whether or not the Defendant herein Abuja Municipal Area Council (AMAC) has the legal authority to demand and collect tenement Rent for premises of residents within Abuja Municipal Area Council which includes the Plaintiff. The 2 nd Defendant, for purposes of clarity also set out two issues for determination as follows:- (1) Whether there is a reasonable cause of action disclosing against the 2 nd Defendant in this suit. (2) Whether the Plaintiff is entitled to its claim in this suit. Before I consider and determine the constitutional questions raised in this case, I will want to consider issue no 1 of the 2 nd Defendant first. That is whether there is a reasonable cause of action disclosed against the 2 nd Defendant in this suit. Counsel for the 2 nd Defendant had submitted that in all the paragraphs of the affidavit in support of the amended originating summons and the reliefs in this suit there is no complaint against the 2 nd Defendant neither is there any single claim against him. I quite agree with Counsel for the 2 nd Defendant that non disclosure of a reasonable cause of action is an issue of jurisdiction see SANI V O. L.G.T.C (2008) 12 NWLR (pt 1102) page 691 at

15 The question therefore is what is a reasonable cause of action? In the case of RINCO CONST. CO V VEEPEE IND LTD (2005) 3-4 SC page 1 at 24 paragraphs D-G, the Supreme Court of Nigeria held:- Reasonable Cause of action means a cause with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligations of the Defendant. It must then go to set out the facts constituting infraction of the Plaintiff s legal right or failure of the Defendant to fulfill his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he seeks. See also ALHAJI IBRAHIM V OSIM (1988) 3 NWLR (pt82) page 257 and COMBINED TRADE LTD V ALL STATE TRUST BANK LTD (1998) 12 NWLR (pt576) page 56. In other words, as aforesaid in the above cases, for a suit to disclose reasonable cause of action, it is the statement of claim of the Plaintiff that is looked at whether it set out the legal rights of the Plaintiff and the obligations of the Defendant. In the instant case, by the amended originating summons filed by the Plaintiff, the Plaintiff seeks the determination of the questions set out at items 1,2 and 3 and ordering:- (1) A declaration that the 1 st Defendant have no legal authority to demand for tenement rent from the Plaintiff in respect of his business premise at Plot No Nasaka Close, behind NAFDAC Wuse Zone 7, Abuja. 15

16 (2) An order setting aside the tenement rent of N755, only levied against the Plaintiff as same was given without assessment whatsoever. Further, the Plaintiff filed an affidavit of 5 paragraphs with four (4) exhibits marked A-E. The affidavit of the Plaintiff with all intents and purposes constitute the facts and evidence in prove of the legal rights of the Plaintiff and the orders sought against the Defendants. A perusal of the affidavit of the Plaintiff, the dispute or facts constituting the complaint of the Plaintiff appears to have arisen between the Plaintiff and the 1 st Defendant. The only averment that touches on the 2 nd Defendant can be found at paragraph 4 (L) of the affidavit in support which provides as follows:- That the Honourable Minister of the Federal Capital Territory is also collecting tenement rate in respect of properties within the Abuja Municipal Area Council. While the 2 nd Defendant at paragraph 6 of its counter affidavit deposed as follows:- That the 2 nd Defendant does not collect tenement rate from the Plaintiff or any other person in the Federal Capital Territory. By paragraph 6 of the counter affidavit of the 2 nd Defendant, the 2 nd Defendant is disputing the averment of the Plaintiff that the 2 nd Defendant collects tenement rate. To further resolve the issue whether the Plaintiff has any complaint or relief claimed against the 2 nd Defendant, I have considered the exhibits attached to the affidavit of the Plaintiff. Exhibit A, is a tenement rate demand notice issued by the 1 st Defendant. Exhibit B, the inspection notice of 1 st November, 2010 was equally 16

17 issued by the 1 st Defendant. Exhibit c, the assessment notice dated the 3 rd of November, 2010 was issued by the 1 st Defendant. In other words, cause of Plaintiff s complaint which arises from exhibits A, B and C that culminated into the institution of this suit was between the Plaintiff and the 1 st Defendant. Even exhibit D, Plaintiff s solicitor letter dated 22 nd November, 2010 was addressed to the Chairman of the 1 st Defendant. Thus, in view of the bundle of facts or aggregate facts or the entire circumstances of this suit, the facts as constituted, there is no nexus in the Plaintiff s complaint against the 2 nd Defendant. In other words the facts as constituting the Plaintiff s complaint, there is no reasonable cause of action against the 2 nd Defendant in this suit. Hence therefore I hold the view that the Plaintiff failed to disclose any cause of action against the 2 nd Defendant and I so hold. Consequently, the name of the 2 nd Defendant is hereby struck out from this suit. Having struck out the name of the 2 nd Defendant, as I said earlier, both the Plaintiff s Counsel and the learned Silk for the Defendant had formulated issues for determination of this Court. The issues as formulated by Counsel are principally the same and any of the issues picked will assist the Court to resolve the dispute. In that wise, I will adopt the issues distilled for determination by the Defendant s Counsel. The 1 st issue is :- Whether or not the Defendant herein Abuja Municipal Area Council (AMAC) has the legal authority to demand and collect tenement rent for premises of residents within Abuja Municipal Area Council(AMAC) which include the Plaintiff. 17

18 In order to substantiate its position and the reliefs sought against the Defendant, the Plaintiff averred facts at paragraphs 4 (c) (K) of its affidavit in support and more especially at paragraph 4 (K) where it states: That the 1 st Defendant as a Local Government Council are not empowered to collect tenement rate within the Abuja Municipal Area Council. Further, Plaintiff s Counsel in his unpageted written address submitted as follows:- Since the National Assembly have not made any law as it relates to the rates chargeable by the 1 st Defendant in respect of tenement rate would be incompetent and lack necessary authority to demand tenement rates from the Plaintiff. The 1 st Defendant is established under section 7(1) of the 1979 Constitution as amended and the functions of the 1 st Defendant stated in the 4 th schedule of the 1999 Constitution as amended. However the same Constitution does not define or set out how the functions shall be performed or discharged Learned Counsel for the Plaintiff submitted also that it is our considered opinion that so long as the Constitution does not define the way and manner the 1 st Defendant can perform those functions mentioned in the 4 th schedule of the 1999 Constitution as amended, it would be incompetent for the 1 st Defendant to exercise such powers without any act of the National Assembly. This is the crux of complaint of the Plaintiff that led to the institution of this suit and the questions raised therein on the face of the amended originating summons. 18

19 Firstly, before I state the position of the law in answer to the questions of the Plaintiff, in the written address of Plaintiff s Counsel, he referred to the 1979 Constitution which in my humble view must be a typographical error. I therefore pursuant order 46 Rules of this Court deem 1979 to be 1999 Constitution as amended. Now back to the issues at hand, learned Counsel for the 1 st Defendant had submitted that the power of the Defendant to issue and or demand for the payment of tenement rent from residents within its jurisdiction including the Plaintiff is an authority clearly conferred on it as a local Government and or Area Council established under the 1999 Constitution of the Federal Republic of Nigeria and other enabling statutes. To resolve the impasses, it is without doubt that by section 7 of the 1999 Constitution of the Federal Republic of Nigeria a democratically elected system of Government at the Local Government Level is guaranteed. section.7 (1) provides:- The system of Local Government by democratically elected local Government Council is under this Constitution guaranteed; and accordingly the Government of every State shall subject to section 8 of this Constitution ensure their existence under a law which provides for the establishment of structure, composition, finance and functions of such Council. I want to especially take note of the words the Government of every State shall subject to section 8 of this Constitution ensure their existence under a law which provides for the establishment of structure, composition, finance and functions 19

20 of such Councils (underline mine). By section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria, the system of Local Government by a democratically elected Local Government Council is guaranteed under 1999 Constitution. And it is also mandatory, a must or an order that Government of every state shall ensure their existence under a law which provides establishment of structure, composition, finance and functions of such Councils. The local Governments of the states of the Federation envisaged under section 7(1) of the 1999 Constitution are provided in the first schedule of part 1, while by section 303 of the 1999 Constitution provides thus:- The Federal Capital Territory, Abuja shall comprise six area Councils and the administrative and political structure thereof shall be as provided by an Act of the National Assembly. The Area Councils referred to in section 303 of the Constitution are those Area Councils set out at the forth schedule of part 2 of the 1999 Constitution (as amended) inclusive of the 1 st Defendant. Thus, a further look at section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria, it says what an area Council is. It provides:- Section 318 (1) In this Constitution, unless it is otherwise expressly provided or the content otherwise requires Local Government Area or Local Government Council Includes an Area Council. It further provides that area Council means each of the administrative Area within the Federal Capital Territory, Abuja. 20

21 As I said earlier by section 303 of the 1999 Constitution and part 2 of the 4 th Schedule to the 1999 Constitution, Area Council, inclusive of the Defendant, in the Federal Capital Territory have been incorporated or have the same meaning and status of a Local Government Area or Local Government Council. And the Constitution of the Federal Republic of Nigeria, pursuant to section 7 (1)(a)- (k) of the 4 th schedule enumerated the functions of a local Government Council and indeed the Defendant in the instant case. As submitted by the learned Silk for the Defendant that the relevant provisions in the instant case is subsections 1(a) (i), (iii) (b) and (j). I quite agree with the views of the learned Counsel for the Defendant. In particular subsection 1 (b) and (j). It provides:- 7(1)(b) collection of rates, radio and television licenses; (J) Assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the Houses of Assembly of a State.. It is in view of this provision that learned Counsel for the Plaintiff submitted that the Defendant cannot issue exhibits A, B and C attached to the affidavit of the Plaintiff without the National Assembly enacting an Act to regulate same. According to Counsel for the Plaintiff, the use of the word may in section 7 (1) (J) be construed as shall which connotes compulsion or mandatory clause. Counsel for the Plaintiff relied and referred me to plethora of judicial decisions on the interpretation of the phrase as may be prescribed in section 7 (1) (J) of the 1999 Constitution admits of no discretion. However, the learned Silk for the Defendant submitted that by virtue of section 299 of the Constitution of the Federal of Nigeria, the Federal Capital Territory Abuja is to be construed as one of the States of the Federation and the National 21

22 Assembly, pursuant to its legislative powers enacted the FCT Act Cap F-6 LFN Section 299 of the Constitution provides the provisions of this Constitution shall apply to the Federal Capital Territory Abuja as if it were one of the States of the Federation, and accordingly (a) All the Legislative Powers, the Executive Powers and the Judicial Powers vested in the Houses of Assembly, the Governor of a State and in the Courts of a State shall respectively vest in the National Assembly the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory Abuja (underline is mine). (b) All powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution, and (c) The provisions of this Constitution pertaining to matters aforesaid shall be read with such modifications and adaptations as may be necessary to bring them into conformity with the provisions of this section. (Underling mine for emphasis). By virtue of section 299 of the 1999 Constitution the powers to make laws for the Federal Capital Territory; Abuja is vested on the National Assembly. And pursuant to the Powers conferred on the National Assembly, the National Assembly enacted the Federal Capital Territory Act Cap F-6 Laws of the Federation of Nigeria The Act, that is, the Federal Capital Territory (FCT) ACT Cap F-6, at its second schedule made certain laws applicable to the Federal Capital Territory by virtue of section 13 of the FCT Act. Section 13 of the Act provides:- 22

23 In addition to any law having effect or made applicable throughout the Federation, the Laws set out in the second schedule to this Act shall as from 9 th May, 1984 apply in the Federal Capital Territory. Now a close look at the 2 nd schedule of the FCT Act, serial no. 55, the Niger State Local Government Edict of 1976 has been made applicable in the Federal Capital Territory (FCT). And by virtue of the 1999 Constitution as provided in section 315, it states:- Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be:- (a) An Act of the National Assembly to the extant that it is law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws. (b) A law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws; (c) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority with the provisions of this Constitution Furthermore, section 315 (4) of the 1999 Constitution provides:- Existing law means any law and includes any rule of law or enactment or instrument whatsoever which is enforce immediately before the date when this 23

24 section comes into force or which having been passed or made before that date comes into force after that date; and (C) Modification includes addition, alteration, omission or repeal. In view of the above provisions and in particular section 315 of the 1999 Constitution, the FCT Act Cap 6 LFN, 2004, being an Act of the National Assembly, the Niger State Local Government Edict of 1976 is also applicable in the Federal Capital Territory, Abuja. In other words by section 52 (1) of the Local Government Act, 1976 of Niger State, it states:- (1) It shall be the duty of every Local Government established under this Act. (a) To discharge the duties and obligations imposed by or under this Act or any other enactment, and (b) Generally to assist in maintaining order and good governance within the area of its authority. (3) Any function conferred on a Local Government by or under this Act shall be exercisable over all persons within the Area of its authority save as is otherwise expressly provided in this Act. By section 55 of the Local Government Act, it also provides subject to the provisions of this Act or any other enactment, a Local Government shall be responsible for and have power to make bye laws for all of the following matters that is:- (R) Collection of Community tax, property and other rates and designated revenue. 24

25 The Local Government Act also by section 56 states:- Subject to this Act or any other enactment, the Military Governor may confer power on a local Government to be responsible for and to make bye- laws for all or any of the following matters, that is :- 56(s) Operation of commercial undertakings. Based on the forgoing therefore, the FCT Act Cap L 6 of 2004, being an Act of the National Assembly and the combined readings of sections 7 (1) (j) 299, 303 and 315 of the 1999 Constitution and indeed the Niger State Local Government Edict of 1976 and sections 55 and 56 of the Local Government Act, the Defendant, Abuja Municipal Area Council, by its Bye law 2001 no. 12 of Vol 90 dated 7 th April, 2003 states:- A bye- law to make provisions for the levying and collection of tenement rates on tenements and building in Abuja Municipal Area Council and for other purposes connected therewith. In other words, by virtue of the 1999 Constitution of the Federal Republic of Nigeria, the FCT Act Cap L6 that made the reception of the Niger State Local Government Edict of 1976 applicable in the FCT and the Defendant s bye law, the Defendant s action in issuing exhibits A, B and C respectively was done in accordance with the powers conferred on it by law. Accordingly, I hold the view that the National Assembly having enacted the FCT Act Cap l6 Laws of the Federation of Nigeria, 2004 and by virtue of section 315 of the 1999 Constitution, the Niger State Local Government Edict of 1976 made applicable in the FCT, the 25

26 National Assembly, has by law empowered the Defendant to make bye law for the collection of rates and tenement rents and I so hold. In view of the above, I disagreed with the views expressed by the Plaintiff s Counsel particularly in his Plaintiff s reply to the 1 st Defendant s written address. The position of the law is that by the provisions of section 299 and 315 of the 1999 Constitution, and the Niger State Local Government Edict of 1976, which is the existing law when the FCT was created, by virtue of the FCT Act cap L 6 of 2004, the Niger State Local Government Edict is deemed applicable in the FCT by section 315 of the 1999 Constitution as an Act of the National Assembly. In other words, the Constitution has enjoined on us that an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution. It may therefore amount to surplusage that the National Assembly must legislate and prescribed rates or tenement rents for the Defendant which in actual fact the National Assembly had already empowered the Defendant by its bye laws to do so. In respect of issue no 1, I resolve the issue in favour of the Defendant. The second issue is whether or not the assessed tenement rent demanded from the Plaintiff is taxation or indeed amount to double taxation since the Plaintiff pays tax to the Federal Inland Revenue Service and ground rent to the Honourable Minister of Federal Capital Territory (FCT). In respect of this issue from the facts and affidavit evidence, by exhibit A, B and C respectively, it is not a demand for taxation as known to law. Exhibit A and C assessed and issued by the Defendant was issued in accordance with the 26

27 Provisions of the Defendant s bye law of Exhibit D was assessed and issued to the Plaintiff for payment of tenement rent. The bye law of the Defendant is not a National Legislation empowering the Defendant to demand and collect tax but rather it is a bye law to demand and collect tenement rents on privately owned property within the jurisdiction of the Defendant. The two are therefore different. Further, as I said earlier the facts and evidence did not show that the Defendant demanded for payment of tax from the Plaintiff. In the same breath, there is no evidence to show that the Plaintiff have been paying tax to the appropriate authorities. The argument of the Plaintiff s Counsel is therefore of no moment. The second issue is also resolved in favour of the Defendant. In the whole, based on the affidavit of the Plaintiff, the counter affidavit of the Defendant, and the authorities cited, the two issues are resolved in favour of the Defendant. Consequently, the case of the Plaintiff is hereby dismissed. Signed Judge 27/02/13 Parties:- Absent. E.I Esene for the Plaintiff. Aniche Benjamin C:-For the 1 st Defendant. C.N. Njaka:-For the 2 nd Defendant. Benjamin:- I ask for N50, cost against the Plaintiff. Esene:- I am not conceding to cost. The 1 st Defendant should be happy with the development. 27

28 Court:- No cost awarded and parties to bear their respective cost. Signed Judge 27/02/13 28