Edo High Court Restrains Govt Agency From Collecting Land Use Charge

The Edo High Court sitting in Benin City has stopped the collection of Land Use Charge in Edo State, stating that it is unconstitutional, null and void.

Chief Ferdinand O Orbih
Chief Ferdinand O Orbih

The case was presided by Hon Justice P.A. Akhihiero in Suit No.B/99D/2021: Chief Ferdinand O Orbih (Carrying on legal practice as Ferd O Orbih SAN & Co. v Edo State Geographic Infirmation Service & 2 Ors, Counsel to Chief Ferdinand, K.O Obamogie Esq., submitted with a plethora of authorities that Section 7 (1) (5) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the collection of what the Edo State Government through a Law called Land Use Charge is the exclusive duties of the 18 Local Governments of Edo State specifically donated by the Constitution, which does not allow any derogation whatsoever, is the exclusive duties of the Constitution, which does not allow any. He specifically made reference to Paragraph 1(j) of the Fourth Schedule of Constitution of the Constitution of Federal Republic of Nigeria, 1999 (As Amended ), which stated thus :

"1 The main functions of a local government council are as follows:

(j) assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the House of Assembly of a State; and"

The Edo State House of Assembly passed the Land Use Charge Law, 2012 in flagrant violation of Section 7 Subsection 1 nd 5 and paragraph 1(j) of the Fourth Schedule to the Constitution.

Counsel then argued that the Local Governments can't give up constitutional authority to collect tenement rates through an agreement between the 18 Local Governments and the Edo State Government because it's a constitutionally mandated obligation, and he asked the Court to grant the Claimant's reliefs.

Mrs V. U. Adeleye (Director, Edo State Ministry of Justice), Counsel for the Defendant, stated that the Edo State Land Use Charge, 2012 is a legal law that consolidates property taxes and is not in conflict with the Constitution. Only local governments whose powers have been taken away by the law, she argued, can dispute the law. Counsel further argued that the law is not unconstitutional, but rather strengthens local governments and the state government's combined efforts in the collection of property taxes. Counsel requested that the lawsuit be dismissed.

After considering both sides of the argument, the Presiding Judge, Hon Justice P.A Akinhiero held that there is no written agreement presented to Court between the 18 Local Governments and the Edo State Government delegating the powers to collect tenement rates to the State Government.

The Court then held that it is the ouster of express powers provided by the Constitution, for the Land Use Change Law to give powers to the Edo State Government using the Edo GIS to collect Tenement Rates expressly donated by the Constitution. The Court further held that Local Governments are Constitutional Entities that must perform functions imposed on them by the Constitution.

The Court then declared the Edo State Land Use Charge Law 2012, which purports to take the powers o the Local Governments in Edo State to collect Tenement Rates as null and void. The Court then used the Blue Pencil Rule to strike down Sections 3(2), 5,24,27 of the Edo State Land Use Charge Law and declared the same null and void while reviving the Powers of Local Governments to collect Tenement Rates, after reinstating the Tenement Rates Law of Edo State.

The Court then granted substantially the reliefs sought by the Claimant, including an Order of perpetual injunction restraining the Edo GIS for demanding or collecting Land Use Charge.

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