- Restraints AEPB from collecting refuse, sewage levy in Abuja
- Declares N19m demand notice on NIPCO Plc ultra vires
A High Court sitting in the Federal Capital Territory (FCT), Abuja, has ruled against the powers of the Abuja Environmental Protection Board (AEPB) under sections 30 (4) and 6(1) (a) and (b) of the Abuja Environmental Protection Board Act, 1997, as unconstitutional, null and void.
With this, the court has restrained the Abuja Environmental Protection Board (AEPB), from imposing and collecting sewage and refuse disposal levies from NIPCO Plc or any other person or corporate bodies whatsoever in Abuja Municipal Area Council, FCT henceforth.
Similarly, the court also declared that the demand notices for the total sum of N19,400,553.36 imposed on the plaintiff (NIPCO Plc) 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 and are therefore unconstitutional, null and void.
Justice Olukayode Adeniyi issued the order of perpetual injunction restraining Abuja Environmental Protection Board while delivering judgment in suit No: CV/ 3493 /2022 filed by NIPCO Plc through its lawyers, Chief Paul Obi (with Ify Ikeatuegwu), against the environmental board of the FCT, including its officers, agents, employees.
Justice Adeniyi declared that the defendant had no legal or constitutional powers to impose any levy or fine for sewage and refuse disposal on the plaintiff or any corporate body within Abuja Municipal Area Council.
Justice Adeniyi said in his judgment, “Whether in the circumstances of this case and considering the provisions of the 1999 constitution (as amended) and as highlighted in question one above and considering Sections 30 (4) and 6(1) (a) and (b) of the Abuja Environmental Protection Board Act, 1997, purporting to confer powers and jurisdiction on the Defendant to impose and collect sewage and refuse disposal levies on Plaintiff or any other person or corporate bodies whatsoever in Abuja Municipal Area Council, FCT. The said sections 30 (4) and 6(1) (a) and (b) of the Abuja Environmental Protection Board Act, 1997, is unconstitutional, null and void and of no effect.”
The court held that Abuja Municipal Area Council (AMAC) is the only body constitutionally empowered and authorized to impose or levy sewage and refuse disposal levies or fines on any person or corporate body in Abuja Municipal Area Council of the FCT.
Justice Adeniyi, in the judgment delivered February 21, 2024 held that the defendant as a body created by section 1 of the Abuja Environmental Protection Board Act, 1997, an Act of the National Assembly, to perform the exact functions and to exercise the powers conferred on AMAC by the constitution, cannot validly and legally impose levies or fines on the plaintiff for sewage and refuse disposal.
The court declared that the provisions of s. 30(4) and s. 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.
The court in addition held that the purported good sought to be done by the enactment of the AEPB Act, to the extent of its conflict with the constitution, cannot, simply for reasons of its good motives, be recognized or enforced, adding “the good sought in unconstitutional legislation is an insidious feature.”
Justice Adeniyi, citing necessary authorities and related judgments, held that the totality of the arguments canvassed by the defendant’s learned counsel with regards to the motive or the laudable idea behind the passage of the AEPB Act, must pale into insignificance in view of its conflict with nation’s grundnorm, adding, “let me also add this that I have used the constitution as the barometer to measure the AEPB Act, I reached the conclusion that it falls below the required legislative standards.”
Citing more authorities, Justice Adeniyi dismissed arguments by the defense that it was as a result of the nullification of the Taxes and Levies (Approved List of Collection) Act, that stripped AMAC of powers to collect levies and dues for waste management that compelled the defendant to assume the functions of AMAC.
The court held that no law or judicial pronouncement can controvert or contradict a clear provision of the constitution.
“The provision of paragraph I(h) of the Fourth Schedule to the Constitution, without equivocation, preserves the powers and responsibilities of all Local Government Councils in the federation, including, in the instant case, AMAC, to provide and maintain public conveniences, sewage and refuse disposal.
“That provision, without doubt further implies that Local Councils have the constitutional responsibility to so fix levies and dues for carrying out such waste management responsibilities.
“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.
“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”, he held.
Justice Adeniyi declared that where the legislature enacts a law which is in conflict with any provisions of the constitution; or undermines its supremacy, the court is empowered to intervene and strike down such legislation, stressing that this is why the claimant had invoked the jurisdiction of the court to do in the circumstances of the case.
In the Originating Summon, Chief Obot for the claimant, had formulated two issues for determination of the court, including:
“Whether in the circumstances of this case and having regard to the clear provisions of the Section 1(3) for the 1999 Constitution of the Federal Republic of Nigeria, as amended (The Constitution), which guarantees constitutional supremacy over all other laws or legislations made in Nigeria, the Defendant as a body created by an Act of the National Assembly, can validly perform the exact functions and exercise the powers conferred on the Abuja Municipal Area Council (AMAC) by Section ( 7) of the 1999 Constitution; and Whether in the circumstances of this case and considering the clear provisions of the 1999 Constitution (as amended), and Ss. 30(4) and 6 (1) (a) and (b) of the Abuja Municipal Protection Act 1997, which sections purport to confer powers and jurisdiction on the Defendant to impose and collect sewage and refuse disposal levies on the Plaintiff or any other person or corporate bodies whatsoever in Abuja Municipal Area Council, FCT is unconstitutional, null and void and of no effect.
Arguing the two issues together, the claimant’s learned counsel had asserted the supremacy of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); which he referred to rightly as the grundnorm, over and above every other law in the land, and citied the provision of s. 1 (3) of the same Constitution to underscore the point.
