Powers Of FCT Area Councils To Levy Tenement Rates: Appraising Abuja Municipal Council v. Planned Shelter Ltd & 5 Ors

1. Introduction

The question of the legality or otherwise of the powers of the Federal Capital Territory (FCT) Area Councils to levy tenement rates has been a subject of debate for quite a while. The decision of the FCT High Court on 12^th day of April, 2018 made the headlines when the Court through Hon. Justice Velentine B. Ashi J., declared that the   Area Councils are bereft of the constitutional legislative competence to prescribe tenements rate.

However, the recent decision of the Court of Appeal in the case of Abuja Municipal Council v. Planned Shelter Ltd & 5 Ors Suit No. CA/A/536/2018 has set a new ball rolling contrary to the one earlier set by the FCT High Court in 2018. Hence, the objective of this Editorial is to appraise the new decision that set a new phase.

2. Overview of the FCT High Court Judgment on Tenement Rates

Planned Shelter Ltd., a duly registered company and the owner and occupier of No. 8, Sambrerio Crescent, Off Limpopo Street, Maitama, FCT Abuja by an originating summons dated the 23^rd day of March, 2017 approached the FCT High Court seeking amongst others,  an order declaring that the FCT Area Councils are divested of the power to assess, determine, demand and legislate on tenement rates by the dint of paragraph 1(j) of the 4^th Schedule to the 1999 Constitution and an order of Court striking down Abuja Municipal Area Council, Tenement Rate Collection Bye-Law (NO.22) 2012 and other similar legislations of the other Area Councils unconstitutional.

Meanwhile, having heard the strength of the case advanced before it by the both parties, Hon. Justice Valentine J. on 12^th day of April, 2018 acceded to the request of the Plaintiff in declaring that it is the duty of the National Assembly and not the Area Councils to prescribe a tenement rates template, and held as follows:

“[I]t is the National Assembly and not the Area councils that have  the prerogative to prescribe the rates to be collected, pursuant to Section 1(j) of the Constitution…the various bye-laws made by the Area Councils in the FCT…are not made within the framework of law, in force. There is absence of substantive due process in the making of these by-laws…the defendants have acted ultra vires their powers as provided in Section 1(1)(j) of the 4^th Schedule to the 1999 Constitution, as amended. ”

3. The Court of Appeal Stage: Abuja Municipal Council v. Planned Shelter Ltd & 5 Ors Suit No. CA/A/536/2018

The Abuja Municipal Area Council (Appellant) was apparently peeved with the Judgment of the FCT High Court which necessitated her filed Notice of Appeal 10 days after the Judgment dated the 23^rd day of April, 2018 before Hon. Justices Stephen Jonah Adah, Peter Olabisi Ige (who delivered the leading Judgment) and Mohammad Baba Idris, J.JCA.

However, the Appellant submitted five grounds of appeal which are summarized below:

• That the FCT High Court was in error to have substituted the claim of the Plaintiff from Section 7(j) of the 4^th Schedule of the Constitution which does not exist to read the correct Section 1(j) thereof.
• That the FCT High Court was in error to have held that the six Area Councils lack the constitutional power to make Bye-Laws fixing tenements rate and the Court was further wrong to have ignored judicial authorities advanced before it on the same subject on the strength of judicial precedence.
• That the FCT High Court was wrong to have set aside all actions taken or set to be taken by the Area Councils on the strength of the Bye-Laws

4. The Laws In Contention As To the Powers of Area Councils To impose Tenement Rates

The resolution of the issues before the Court of Appeal centered on the following Laws:

• The import of Section 7 of the Constitution and paragraph 1(j) of the 4^th Schedule to the 1999 Constitution on the power of the Area Councils to make Bye-Laws on Tenement Rates
• Applicability of Niger State Local Government Edict of 1976 an existing Law pursuant to Section 315 of the 1999 Constitution which is now an Act of the National Assembly.
• Applicability of Section 13 of the Federal Capital Territory Act provides that the Niger State Local Government Act is an applicable Law in the FCT
• Sections 52, 55 and 56 of Niger State Local Government Act empowered the FCT Area Councils to make Bye-Laws, like  Abuja Municipal Area Council, Tenement Rate Collection Bye-Law (NO.22) 2012  on Tenements Rates and collection of other rates.

5. The Decision of the Court of Appeal

The Court of Appeal decision is premised on the grounds of appeal earlier summarized above.

Firstly, it was held that contrary to the contention of the Appellant that the FCT High Court violated its right to fair hearing under Section 36 of the Constitution  for pronouncing on an issue which the parties were not called upon to address, to wit correcting  the mistaken cited provision of Law by the Plaintiff on the amended originating summons.

The Court dismissed the contention and held at page 27 thus:

“What the learned trial Judge did in this case was to refer to the relevant provisions of the law, in this case the constitution which he believed the Respondent ought to have relied upon for the reliefs sought…The Appellant comprehensively joined issues with the Respondent on the issue…This means that the Appellant is not misled as to the claims of the Respondent and the provisions of the Constitution the Respondent [is] relying upon”

“Citing a law or provisions of the [Constitution] FRN correctly by Court where a party wrongly relied on wrong law or cited a case or law incorrectly does not tantamount to changing the character of the case and issues  articulated for determination by the Court siezed of the matter…The right to fair hearing of the Appellant was not affected or jeopardized in any way on account of wrong citation…as it happened at the lower court.”

We respectfully submit that the above decision of the Court is sound in law because, the Law is rock solid that the mere fact that a claim is brought under a wrong Law does not necessarily vitiate the grant or otherwise of such a claim in so far as the party seeking same may be entiltled to same vide the famous case of FALOBI V. ELIZABETH FALOBI (1976) 1 NWLR 169/177. See also LEADERS & COMPANY LTD V. KUSAMOTU (2008) ALL FWlr (pt 405) 1800.

Also, the stance of the Court that the trial Court ought to abide by the settled principle of calling on parties to address on issues raised suo motou is in order and laudable vide BERNARD OJEIFOR LONGE V. FIRST BANK OF NIG. PLC(2010) LPELR-SC.116/2007:

“It is a correct statement of law that courts of law must refrain from raising suo motu issues upon which their decisions or judgment would turn. The rationale for that approach is not difficult to understand. It is an inseparable adjunct of the concept of fair hearing.”

Besides, the Court of Appeal was right, in our view because the Appellant failed to show how he has suffered a miscarriage of justice as held by the Supreme Court in the case of  CHIEF JAMES ONANEFE IBORI V. ENGINEER GOODNEWS AGBI & ORS (2004) LPELR-SC.97/2003 thus:

“In my humble view, the short answer to this question is that a court cannot bedeterred from referring to the provisions of the law as it deems fit. But an ancillary to that right is also absolutely necessary for this point to be brought to the attention of the parties and their counsel so that the court may receive their addresses on the point of law so raised, clearly, suomotu by the court… the party who, claims that he has suffered such a miscarriage of justice by the verdict of the court, has a duty in the circumstance, to show how he had suffered as alleged a miscarriage of justice. (Emphasis ours)

However, on the main thrust of the appeal that revolves on the legality of the decision of the FCT High Court on the legislative power of the Area Councils to levy Tenement Rates, the Court held at page 40 that:

“The controversies relating to the powers of the six Area Councils in the Federal Capital Territory including the Appellant’s to assess and demand for Tenement rate on privately owned houses of  Tenements for the purpose of levying even rates have thus been settled by this Court…”

“The Appellant, the 2^nd -6^th Respondents have powers under the constitution of the Federal Republic of Nigeria 1999 as amended section 7 thereof and paragraph 1(j) of the 4^th schedule to the said Constitution and pursuant to the existing laws aforsesaid made applicable to the Federal Capital Territory contained in Federal Capital Territory, Act CAP F- 6 LFN 2004 and vol.3 L – 351 Laws of the Federal Capital Territory all which are deemed to be existing  law(s) made by the National Assembly of Nigeria pursuant to section 315 of the Constitution …to make the said Bye laws as was done by the Appellant in the case. ”

Besides, the Court remarked at page 36 that by the principles of judicial precedent which is now rooted in our Constitution vide Section 287, the FCT High Court ought to have followed earlier decisions on the same subject. The Court held:

“I have no doubt in my mind and as rightly pointed out by the Appellant’s Learned Counsel that the lower Court ought to have applied the decision of the Supreme Court in the case of KNIGHT FRANK & RUTLEY (NIG) LIMITED & ANOR V. AG KANO(1998) LPELR-1694 SC and the decision of this Court [in] AFDIN VENTURE LIMITED & ORS V.  CHAIRMAN ABUJA MUNICIPAL AREA COUNCIL(2014) LPELR-2350(CA) which are on all fours with this case on appeal” 

We are of the candid view that the Judgment of the Court of Appeal carefully identified the real issues in controversy between the parties, and same analytically resolved on a careful construction of all the relevant provisions of the applicable Laws. Hence, the decision is laudable.

6. Conclusion

It is respectfully submitted that the decision of the Court of Appeal setting aside the decision of the FCT High Court is not only sound on the strength of previous judicial authorities but also in consonant with the 1999 Constitution and other relevant statutory laws (above) governing and empowering the FCT Abuja Area Councils’ imposition of Tenement Rates and other rates.

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