A few weeks ago, the inhabitants of Lagos State awoke to yet another levy, in addition to the multiple taxes already foisted on them by the State Government. This time, it’s the Lagos State Parking Levy which stands at N80,000 per vehicle, and a non-refundable Administrative/Processing fee which applies based on the location. Humans Rights Lawyer and Activist, Femi Falana, SAN tackles Haroun Adebayo of the Lagos State Ministry of Justice, on what he describes as unconscionable multiple taxation and illegal levies. This is Crossfire!
‘LSG Parking Levy is Illegal, Overtaxation’ – Femi Falana, SAN
The Lagos State Parking Authority, an agency of the Lagos State Government, has recently imposed a controversial parking fee of N80,000 per car slot per annum on residents of the State. The parking fee may fetch the Government billions of Naira from owners of business premises, whose car parks may accommodate scores of cars. No doubt, the parking fee is an additional burden on residents who are required to pay taxes and levies fixed by the Federal Government, State Government and Local Government Councils, on their private houses or business premises.
Multiple Taxes and Charges
Indeed, the taxes paid by some enterprises, are not less than 25 in number. They include land use charge, business premises levy, development levy, annual entertainment development charge, sewage management fees etc, in respect of the private house or business premises.
Apart from the payment of such multiple taxes and levies, residents are also compelled to pay astronomical bills for epileptic supply of electricity and spend colossal sums of money on purchase of generators and diesel, security and cleaning of houses and business premises. The multiple taxation cannot be justified in a democratic society. More so that the laws for fixing and collecting the taxes are enacted by the Lagos State House of Assembly, without any public hearing or input from relevant segments in the State. Such anti-people’s policy is called ‘taxation without representation’ in the United States of America.
Challenging Legal Validity of Parking Fee
However, the legal validity of the parking fee has been challenged, on the ground that it is the exclusive responsibility of local governments to fix and collect the fee by virtue of Section 7(5) of the Constitution and the Fourth Schedule to the Constitution. Not unexpectedly, the Lagos State Government has attempted, albeit unsuccessfully, to justify the parking fee. Thus, in a press statement titled “Lagos Parking Levy is Constitutional” dated August 29, 2022, Adebayo Haroun Esq, the Senior Special Assistant to the Honourable Attorney-General and Commissioner for Justice, Lagos State, Mr Moyosore Onigbanjo, SAN, issued a press statement wherein he asserted that the parking fee was validly enacted.
In the said press statement, Mr Haroun further stated that the Lagos State Parking Authority 2018 “empowers the Local Governments and Local Council Development Areas (LCDA) in Lagos State to assign their power in respect of collection of fees relating to the State Government.” In support of his argument, Mr Haroun referred to the case of Ola Animashaun Harimot Oluwabukola v Attorney-General of Lagos State & 5 Ors in Appeal No. CA/L/1046 delivered on 19th November, 2018 where it was held by the Court of Appeal that the intendment of Section 1(3) of the Land Use Charge Law of Lagos State is “to give powers to the Local Government to permit a contractual relationship between it and State on the collection of taxes”.
It is curious to note that Mr Haroun did not refer to the more relevant case of Airtel Nigeria Limited v Attorney-General of Lagos State & 3 Ors (2019) 1 NCLR 1, where the Court of Appeal held that it was unable to agree with the Appellant that the 3rd Respondent (Eti-Osa Local Government) does not have power to make a law that relates to private parking, since there was nothing in the bye law that is inconsistent with Section 7 and Paragraph 1 of the Fourth Schedule to the Constitution.
However, with respect to the case of Ola Animashaun Harimot Oluwabukola v Attorney-General of Lagos State & 5 Ors (supra), the Court of Appeal did not pay attention to the case of Knight Frank & Rutley Nigeria Limited v Attorney General of Kano State 1998 7 N.W.L.R. (Pt. 556) 1 at 24 where Kutigi JSC (as he then was) stated as follows:
“The Court of Appeal must therefore, in my view be right, when it opined thus:
Could the powers of the State and Local Government Councils to order for valuation of rateable hereditaments co-exist and be complimentary? I believe that once the State passes a legislation assigning the functions of valuation of tenement rates to the Local Government as the Constitution has directed, only the Local Government Council will have the power to deal with that subject. The State has no power to deal with the matter, and the Local Government Council cannot, even if it wants to, divest itself of those powers”.
Conclusion
In view of the authoritative pronouncement of the Supreme Court on the illegality of usurping the powers conferred on Local Governments by State Governments, it is indisputably clear that the Local Governments cannot be legitimately divested of the powers conferred on them by Section 7 of the Constitution to fix and collect parking fees in Lagos State. Therefore, the Lagos State House of Assembly ought to take urgent steps to repeal the law, since it was enacted in contravention of Section 7(5) of the Constitution and Schedule Four to the Constitution.
However, if the law is not repealed by the House, its constitutional validity ought to be challenged by some concerned members of the public in Lagos State.
Femi Falana, SAN, Human Rights Lawyer; Recipient of the prestigious Bernard Simmons Award of the International Bar Association
‘It’s Lawful, It’s the Norm’ – Haroun Adebayo
Unpacking the Legality of Parking Authority in Lagos State
The Lagos State Parking Authority (LSPA) has been part of the Agencies created by the Laws of Lagos State since 2004. When the Laws of Lagos State were compiled in 2015, the Lagos State Parking Authority Law formed part of the laws in Volume 6 cited as (Lagos State Parking Authority Law Ch. L50 Vol. 6, Laws of Lagos State). The law was thereafter reviewed, and a holistic law was enacted in 2018 known as Transport Sector Reform Law of Lagos State. In this law, all the relevant Agencies involved in the transportation sector in Lagos State, were brought together in a single law.
A look at the provisions of the law will take us to Section 78 which states the functions of the LSPA as follows:
The functions of the Authority shall be to:
(a) develop truck parks, bus parks, garages, multi-level parking, on and off-street parking spaces throughout the State;
(b) implement the policy and directives of the State Government on parking;
(c) take necessary steps to prevent indiscriminate or illegal parking of vehicles in collaboration with the relevant Government Agencies;
(d) provide, operate and maintain parking meters for the purposes of this Part;
(e) provide and maintain proper records containing particulars of each impounded vehicle, and the designated vehicle park in which it is kept;
(f) issue permit for development of private parking facilities;
(g) register members of recognised transport union or associations as may be recommended by the union as agents under this Part;
(h) provide private park operators with tickets to be used at the Parks.;
(i) regulate the activities of private park operators by issuing appropriate guidelines which shall include provision of approved kitting for the park agents.
(j) charge fees on private commercial parks;
(k) charge and collect fees on parking lots, or any facility provided by it; and
(l) review the parking fees charged by the Authority.
There have been arguments and counter-arguments in the public space, about the constitutionality of the actions of the Lagos State Government, to demand and collect fees in respect of parking in Lagos State. Most arguments against the move have been anchored on the position that it is the responsibility of Local Government, and not that of the State to control parking in the State. The provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is very clear on this issue. The relevant provision of the Constitution here is Section 1(e) of the Fourth Schedule which provides:
The main functions of a local government council are as follows:
(e) Establishment, maintenance and regulation of slaughter houses, slaughter slabs markets, motor parks and public conveniences;
A cursory look at the Fourth Schedule of the Constitution would reveal that, Parking is not one of the functions bestowed on the Local Government. The position of the law is that what is not expressly mentioned, is not included. In the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See FRN v George Osahon & Ors (2006) LPELR – 3174 (SC).
Since parking is not mentioned in the Constitution as part of the functions of local government, then it is, at best, a residual matter and remains a legislative item within the competence of the State Government. In AG OGUN STATE v ABERUAGBA & ORS (1985) LPELR-3164 (SC) the Supreme Court concluded on the respective powers of the Federal Government vis-à-vis State governments when it held thus:
“A careful perusal and proper construction of Section 4 would reveal that, the residual legislative powers of government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matters.”
Assuming without conceding that motor-parks as contained in paragraph 1(e) of the Fourth Schedule in the Constitution is interpreted to include parking, the provisions of Section 78 and 79 of the Transport Sector Reform Law of Lagos State, 2018 and the agreement executed by Local Government Councils and Local Council Development Areas in Lagos State will avail the State Government.
Section 78 has been produced above, and the provisions of Section 79 of the Transport Sector Reform Law of Lagos State, 2018 is as follows:
For the purpose of this Part, each Local Government Area may delegate to the State by a written agreement, its function with respect to parking activities.
The power of Local Government to donate functions as contained in the Fourth Schedule of the Constitution was considered in the case of Ola Animashaun Harimot Oluwabukola v Attorney General of Lagos State & 5 Ors in Appeal No CA/L/1046 delivered on 19th November, 2018 where the Court held that:
“The intendment of Section 1(3) of the Land Use Charge Law of Lagos State is clearly not to take away the function constitutionally donated to the Local Government, but to give powers to the Local Government to permit a contractual relationship between it and the State on the issue of collection of taxes which is clearly within the responsibility of the Local Government, without breaching any law or constitutional provision. The Constitution recognises that, any person that has a power can exercise such power through other persons or institutions. For example, the Attorney-General can exercise his powers through other persons”.
It is imperative to state that the act of imposing and collecting parking fees is universal, and not peculiar to Lagos State Government.
Haroun Adebayo, Chambers of the Lagos State Attorney-General and Commissioner for Justice
