ABUJA MUNICIPAL AREA COUNCIL v. PLANNED SHELTER LTD & ORS (2020)

ABUJA MUNICIPAL AREA COUNCIL v. PLANNED SHELTER LTD & ORS

(2020)LCN/14148(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 30, 2020

CA/A/536/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ABUJA MUNICIPAL AREA COUNCIL APPELANT(S)

And

1. PLANNED SHELTER LIMITED 2. ABAJI AREA COUNCIL 3. BWARI AREA COUNCIL 4. GWAGWALADA AREA COUNCIL 5. KUJE AREA COUNCIL 6. KWALI AREA COUNCIL RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE COURT TO RAISE MATTERS SUO MOTU

The law is settled that a Court should not generate controversy in his judgment by delving into matters or issues not joined by the parties and submitted for adjudication otherwise the Court will be acting contrary to its character as an impartial umpire or adjudicator it is expected to be and as mandatorily and constitutionally demanded of every Court or Tribunal vide Section 36(1) of Federal Republic of Nigeria 1999 as amended. The section provides;
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
Thus it is not right for a Courtto raise matter suo motu and decide the point or issue in the absence of the parties without affording them the opportunity to be heard having regard to our adversary system of adjudication. See:
1. SOUTH ATLANTIC PETROLEUM LIMITED V. THE MINISTER OF PETROLEUM RESOURCES & ORS (2018) 6 NWLR (PART 1616) 391 AT 413 G – H TO 414 per AUGIE, JSC who said:
“The appellant’s position is that it raised suo motu, the question of the expiration of OPL 246 without inviting or giving parties an opportunity to address it, and it proceeded to use the expiration of the OPL as a basis for dismissing the appeal. It cited the following – Oje V. Babalola (supra) at 280, paras. D-G wherein Nnaemeka-Agu, JSC, stated –
There are occasions when a Court may feel that a point, which has not been raised by one of the parties, is necessary for consideration in order to reach a correct decision in a case. In the few cases when this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel, as the case may be, so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing.
…In this country, this is a constitutional right and this Court has always insisted that on no account should a Court raise a point suo motu and, no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties”.
– Lahan V. Lajoyetan (supra), at 200 wherein this Court also observed –
We regret we cannot but repeat, that a procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.
2. OLUWAROTIMI ODUNAYO AKEREDOLU V. DR. OLUSOGUN MICHAEL ABRAHAM & ORS (2018) 10 NWLR (PART 1628) 570 AT 532 A -C PER OKORO, JSC who said:
“The Court below after reviewing the above decision of the trial Court, asked a pertinent question to wit: Whether the learned trial Judge raised suo motu the issue of the appellant carrying on a substantial part of his law business in Abuja. Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. SeeOshodi & Ors V. Eyifunmi & Ors (2000) 13 NWLR (Pt. 684) 298 at 332; Mojekwu V. Iwuchukwu (2004) 11 NWLR (Pt. 883) 196; Odedo V. PDP & Ors (2015) LPELR- 24738 (SC), reported as Odedo V. Oguebego (2015) 13 NWLR (Pt. 1476) 229.” PER IGE, J.C.A.

DUTY OF COURT TO TAKE JUDICIAL NOTICE

The law enjoins all Courts to take judicial Notice of all laws Gazette, statutory instruments, Legal Notice and Act of National Assembly including laws deemed passed by it published for the information of the Public. The relevant law empowering the Appellant and 2nd – 6th Respondents are contained in the Laws of the Federation of Nigeria and in particular FCT Act, CAP F6 LFN 2004 which in this case is the applicable law deemed made to realize and actualize the intendment of Paragraph (1) (j) Fourth Schedule to CFRN 1999 as amended. See 1. Section 122(1) (2)(a) and (b) of the Evidence Act which provide as follows:
“122 (1) No facts of which the Court shall take judicial notice under this section needs to be proved.
(2) The Court shall take judicial notice of:
(a) all laws or enactments and any subsidiary legislation made under them having the force of law or previously in force in any part of Nigeria.
(b) all public Acts or Laws passed or to be passed by the National Assembly or State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Act or laws directed by the National Assembly or a State House of Personal Act or laws directed by the National Assembly to be judicially noticed:
(2) CHIEF EMMANUEL OLATUNDE LAKANMI V. PETER ADEBAYO ADENE (2003) 10 NWLR (PART 828) 353 AT 374 per KALGO, JSC who said:
“I have already found earlier in this judgment that Decree No. 28 of 1970 had completely nullified the effect of the judgment of the Supreme Court in SC58/69. Therefore the western State of Nigeria forfeiture Order 1967, WSLN 99 of 1967, stands valid and enforceable and being a published legal enactment or instrument, it was not necessary in the circumstances of this case to plead it or tender it in Court before a Court can consider it, see Section 74 of Evidence Act and FCDA V. Naibi (1990) 3 NWLR (Pt. 138) 270.” PER IGE, J.C.A.

THE DOCTRINE OF STARE DECISIS

The doctrine of stare decisis has been given a place of pride in Section 287 of the Federal Republic of Nigeria 1999 as amended. The doctrine has been reiterated and strongly affirmed in numerous decisions of the apex Court in the land. Suffice to refer to two of them:

CYRIL O. OSAKUE V. FCE (TECHNICAL) ASABA & ORS (2010) 5 SCM 185 at 203 G – I per OGBUAGU who said:
“As for hierarchy of the Courts, it is now settled that the ratio decidendi of a case, is the reason for the decision, the principle of the decision Court lower in the judicial hierarchy, is, bound by the ratio decidendi of a higher Court not necessarily the obiter dictum. Stare decisis, means to abide by former precedents where the same points came again in litigation. It presupposes that the law has been solemnly declared and determined in the farmer case. It does, precludes the Judges of the subordinate Courts, from changing what has been determined. Thus, under the doctrine of stare decisis, lower Courts, are bound by the theory of precedent. So said this Court in the case of Mrs. Clement Anor. V. Mrs. Iwuanyanwu & Anor. (1989) 14 SCNJ (PUD 213 & 220). See also the case of Osho V. Foreign Finance Corporation (1991) 5 SCNJ. 52.”
2. ALHAJI M. DINGYADI & ANOR V. INEC & ORS (2011) 10 NWL (PART 125) 347 at 401 H to 402 A – E per ADEKEVE, JSC who said:

“Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999 stipulates that:
1. The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court.
2. The decision of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
3. The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts respectively.
This is the doctrine of stare decisis et non quieta movere or judicial precedent. The meaning and import is to abide by former precedents where same points come again In litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does preclude the judges of subordinate Courts from changing what has been determined. Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the Constitution. The hierarchy of Courts shows the limit and powers of each Court. It Is to ensure that hierarchy of the Court is never in issue.
Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) pg. 254; 7Up Bottling Co. Ltd. V. Abiola & Sons (Nig) Ltd. (1995) 3 NWLR (Pt. 383) pg. 254: Osho V. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) pg. 157: Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) pg. 310: University of Lagos V. Olaniyan (1985) 1 NWLR (Pt. 1) pg. 156.
The doctrine of judicial precedent does not involve an exercise of judicial discretion at all. It is mandatory.” PER IGE, J.C.A.

WHAT ARE “BYE-LAWS”

The question is: What Is a Bye-law? A “Bye-law” or “Bylaw” is “1. Parliamentary law: (usu. pl.) A rule or administrative provision adopted by an organization for its internal governance and its external dealings. Although the bylaws may be an organization’s most authoritative governing document, they are subordinate to a charter or articles of incorporation or association or to a constitution. The “Constitution and bylaws’ are sometimes a single document.” See Blacks Law Dictionary, 9th edition, page 228. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of the Federal Capital Territory holding at Abuja (Coram VALENTINE B. ASHI, J.) delivered on 12th day of April, 2018.

The 1st Respondent had by his AMENDED ORIGINATING SUMMONS filed pursuant to Order of the lower Court made on 23rd March 2017 had sought against the Appellant and the 2nd – 6th Respondents the determination of the lower Court on the following questions and reliefs:-
1. Whether the Abuja Municipal Area Council, Abaji Area Council, Bwari Area Council, Gwagwalada Area Council, Kuje Area Council and Kwali Area Council respectively have the power and capacity to assess, determine, demand and legislate on tenement rate without strict compliance and in accordance with the provisions of Section 7(j) of the 4th Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. Whether the Abuja Municipal Area Council Tenement Rate Collection Bye-Law (No 22) 2012 and any other similar Bye-Laws by the Abaji Area Council, Bwari Area Council, Gwagwalada Area Council Kuje Area Council and Kwali Area

Council respectively amount to creating a law to inflict double taxation on the plaintiff over her property known as No 8 Sambrerio Crescent, Off Limpopo Street, Maitamo, Abuja. FCT.
3. In so far as may be necessary that the Honourable Court make the following orders for the plaintiff as per her claims:
(a) A declaration that by virtue of Section 7(j) of the 4th Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Abuja Municipal Area Council, Tenement Rate collection Bye-Law (No 22) 2012 and any other similar Bye- laws by the Abaji Area Council, Bwari Area Council, Gwagwalada Area Council, Kuje Area Council and Kwali Area Council respectively is unconstitutional, illegal, null and void and of no consequence whatsoever on the plaintiff.
(b) An order setting aside Assessment and demand Notice of 6/7/2011, 21/11/2011, 7/3/2012, 25/7/2013, 9/3/2015, 25/11/2011 and Reminder of 18/4/16 issued by the Defendant to the plaintiff for the payment of tenement rate on the plaintiff’s property known as No 8, Sambrerio Crescent, Off Limpopo street, Maitama, Abuja, FCT.
(c) An Order restraining the 1st Defendant by

itself, agents, officer or privies howsoever called from sealing off, or locking up No 8, Sambrerio Crescent, Off Limpopo street, Maitama, Abuja, FCT the premises/property of the plaintiff or howsoever denying access or preventing the plaintiff or its occupants from gaining access to the plaintiff’s premises for reasons of purported non-payment of tenement rate or for any other reason whatsoever without an order of the Court.
(d) And such further order(s) and reliefs as the Honourable Court may deem fit to make in the circumstances of this suit.”
i. The plaintiff is a company registered and incorporated in Nigeria under the Company and Allied Matters Act, 1990, is the owner/occupier of No 8, Sambrerio Crescent, Off Limpopo Street, Maitama, Abuja, FCT.
ii. The Defendants are creations of statute and bodies Corporate saddled with the responsibility of overseeing all the Area Councils in the Federal Capital Territory.
iii. On the following dates, 6/7/2011, 21/11/2011, 7/3/2012, 25/7/2013, 9/3/2015, 25/1/2016 and 18/4/2016 the 1st Defendant dropped at the entrance door of the plaintiff, Tenement Rate Demand Notices respectively to

be paid by the plaintiff.
iv. Section 7(j) of the 4th Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) clearly stated that assessment of privately owned houses or tenement for the purpose of levying such rates must be as prescribed by the House of Assembly of a state, in the case of Federal Capital Territory, it should be as prescribed by the Notional Assembly, but this was not done before the gazetting of the Abuja Municipal Area Council, Tenement Rate Collection Bye -Law (No 22) 2012 and any other similar Bye – Laws by the Abaji Area Council, Bwari Area Council, Gwagwalada Area Council, Kuje Area Council and Kwali Area Council respectively.
v. The Minister of Federal Capital Territory as far back as 2014 has put a stop to the collection of tenement fates in Federal Capital Territory to stop illegal collection of tenement rates or any other such taxes in order to ensure that residents of Federal Capital Territory are not subjected to double taxation.
vi. The suit is challenging the validity of Abuja Municipal Area Council, Tenement rate collection Bye-Law (No 22) 2012 and any other similar Bye-Laws by the Abaji

Area Council, Bwari Area Council Gwagwalada Area Council, Kuje Area Council and Kwali Area Council respectively.”

The Originating Summons was duly heard and the learned trial Judge gave a considered judgment on 12th April, 2018 and found against the Appellant and the 2nd – 6th Respondents as follows:-
“Now, taking into account what has been said earlier on, which is that it 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, it follows that the various Bye-laws made by the Area Councils in the FCT, for the specific purpose of collecting tenement rates, by whatever name called and howsoever described or couched are not made within the framework of the law, in force. There is absence of substantive due process in the making of these By-laws. This is not to say that the Area Councils have no power to collect the rates complained of but the constitution has provided for how and who ought to provide the template, independent of the various Area Councils. It is on account of the âforgoing that I hereby refuse to answer the 1st question

endorsed on the Originating Summons in the affirmative. In other words, the defendants have acted ultra vires their powers as provided in Section 1(1)(j) of the 4th Schedule to the 1999 Constitution, as amended. On the issue whether the imposition of tenement rates amounts to double taxation, I am of the view that since this issue has already been judicially settled by the Court of Appeal in a related Local Government revenue issue in the case of BAMAK PHARMACY LTD & ORS V. ABUJA MUNICIPAL AREA COUNCIL (2010) LPELR 3850 CA. I am bound to follow and apply the decision to the case in hand. I therefore equally choose not to answer the 2nd question in the affirmative. In other words, tenement rate collection is not double taxation on a limited liability company such as the plaintiff or any or person in its class, except that, as earlier stated, the collection in order to be valid and lawful must be in accordance with substantive due process of law.
In consequence, I hold that this case has merit and it succeeds. I hereby grant the following reliefs:
1. It is hereby declared that the six (6) Area Councils in the FCT, namely, Abuja Municipal Area

Council, Abaji Area, Bwari Area Council, Gwagwalada Area Council and Kuje Area Council and Kwali Area Council, respective, have no power under the Constitution to make Bye-laws fixing rates for collection from property owners or occupiers in the FCT called “Tenement Rates”.
2. It is further hereby declared that the various Bye-laws enacted by the Area Councils at various times for the collection of tenement rates from owners or occupiers of property within the respective territorial jurisdictions of the Area Councils comprised in the FCT are unconstitutional, null and void in that they constitute an epitome of usurpation of the powers of the National Assembly as prescribed in Section 1 (j) of the 4th Schedule to the 1999 Constitution as amended.
3. All actions taken or set to be taken by the Area Councils, connected with the collection of tenement rates from any person or entity within the FCT are hereby nullified, set aside and rendered ineffectual.
4. All the Area Councils in the FCT are hereby jointly and severally prohibited from taking further steps whatsoever aimed at giving effect to the purported Bye-laws for the collection of

tenement rates from any person or entity, pending whenever the National Assembly shall give effect to the provision of Section 1 (j) of the 4th Schedule to the 1999 Constitution as amended.”

The Appellant was dissatisfied with the decision and has by its NOTICE OF APPEAL dated 23rd April, 2018 and filed same date containing five grounds appealed to this Court and the said grounds of appeal and particulars are as follows:-
“GROUND ONE
The Learned Thai Judge erred in law when he found that:-
“Endorsed on the Amended Originating Summons are the following questions for determination/concisely restated: –
1. Whether the Abuja Municipal Area Council Abaji Area Council, Bwari Area Council, Gwagwalada Area Council, Kuje Area Council and Kwali area Council, respectively: have the power and capacity to assess/determine/demand and legislate on tenement rate without strict compliance and in accordance with the provisions of Section 1(J) of the 4th Schedule of the 1999 CFRN, as amended”.
PARTICULARS:
1. Question No. 1 and relief No. 1 of the Amended Originating Summons is for the determination of Section 7(J) of the 4th Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended),

1999 Constitution of the Federal Republic of Nigeria (as amended), on the powers and validity of the 1st Defendant and the other Defendants, 2nd, 3rd, 4th 5th and 6th Defendants to assess, determine, demand and legislate on tenement rate.
2. Section 7(J) of the 4th Schedule, Constitution of the Federal Republic of Nigeria 1999 (as amended) is non-existent, not known to the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. The resolution of question 1 (one) by the Honourable Court is outside the question formulated by the Plaintiff in the Amended Originating Summons.
4. Suo motu, the Court changed question 1 (one) of the Amended Originating Summons imported Section 1(j) of the 4th Schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended) without given a hearing to the parties.
GROUND TWO:
The Learned trial judge erred in law when he held that the six (6) Area Councils of the Federal Capital Territory, which are the 1st Defendant/Appellant, and the other Defendants/Respondents i.e. 2nd, 3rd, 4th, 5th and 6th Defendants respectively have no power under the Constitution to make Bye-laws fixing

rates for collection from property owners or occupiers in the FCT called “tenement Rates”, hence declared that the 1st Defendant/Appellant, and the other Defendants, 2nd, 3rd, 4th, 5th and 6th Defendants Bye-Laws on tenement rates are unconstitutional, null and void.
PARTICULARS:
1. That the assessment, imposition, levying and collection of tenement rate in Nigeria is the exclusive preserve of the Local Government Area under the 1999 Constitution (as amended) vide the Supreme Court decision in KNIGHT FRANK & RUTLEY (NIG) & ANOR V. AG KANO STATE (1998) LPELR-1694 (SC) Pg 17-18 Para A-C.
2. That the provision of Section 1(1)(J) of the 4th Schedule to the Constitution does not require a mandatory prescription of a method of assessment of tenement rate by the National assembly to give effect to the constitutional provision empowering the appellant to assess, levy and collect tenement rate, as the word used therein is “MAY” but wrongly construed by the learned trial Judge.
3. That the National Assembly need not enact a separate law distinct from the existing law to empower the appellant to assess levy and collect tenement

rates contrary to the holding of the trial judge.
4. That the National Assembly by virtue of Section 55 and 56 of the Local Government Act for FCT expressly donated such powers to the Area Councils to complement the Constitutional Provision in Section 1(J) of the 4th Schedule to the Constitution as amended.
5. That the Bye-Law validly passed by the Legislative arm of the Appellant provides substantive clue process for the exercise of constitutional powers to prescribe rates.
GROUND THREE:
The Learned Trial Judge erred in law and thereby occasioned a miscarriage of Justice when he failed to be guided and practically ignored all the judicial authorities including that of the Supreme Court directly on this subject matter commended to him by the Appellant.
PARTICULARS:
1. That the Learned Trial Judge failed to be guided by the decision of this Court in KNIGHT FRANK & RUTLEY (NIG) & ANOR V. AG KANO STATE (1998) LPELR-1694 (SC), AFDIN VENTURES LTD & ORS V. CHAIRMAN, ABUJA MUNICIPAL AREA COUNCIL (2014) LPELR – 23509 (CA), NEXT LEVEL RESORT V. AMAC in SUIT NO: FCT/HC/CV/1072/2011 and other commended to him by the

Appellant.
2. That the Learned Trial Judge is, and remain bound by the decisions of this Court and the Supreme Court under the guidepost of doctrine of Stare decisis.
3. That a Court of law is bound to consider all the materials placed before it.
4. That the Appellant’s right to fair hearing was breached by the learned trial Judge in his deliberate action of avoiding to give credence to the cases commended to him by the appellant which are on all fours with the facts at hand.
5. That it will amount to judicial rascality and impertinent for the trial Court to derogate from decision of this Court and the Supreme Court.
GROUND FOUR:
The Learned trial Judge erred in law when he held that:-
“Now, taking into account what had been said earlier on, which is that it 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, it follows that the various Bye-laws made by the Area Council in the FCT for the specific purpose of collecting tenement rates, by whatever name called and howsoever described or couched are not made

within the framework of the law in force. There is absence of substantive due process in the making of this Bye- law”.
PARTICULARS:
1. The 1st Defendant/appellant’s Tenement Rate Collection Bye-Law (No.22) 2012 was made pursuant to the provisions of Sections 52, 55 and 56(s) of the Local Government Act of 1976 made applicable in the Federal Capital Territory extant laws, and, pursuant to Section 7 and the 4th Schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Due process, were adhered to by the 1st Defendant/Appellant in making The Tenement Rate Collection Bye -Law (No. 22) 2012.
GROUND FIVE:
The Learned Trial Judge erred in law when he held that:
“All actions taken or set to be taken by the area Councils connected with the collection of tenement rates from any person or entity within the FCT are hereby nullified, set aside and rendered in effectual.”
PARTICULARS:
1. The 1st Defendant/Appellant’s is one of the Area Councils in the Federal Capital Territory that promulgated Tenement Rate Collection, Bye-Law (No. 22) 2012, howsoever, described.
2. The order that

“All actions taken or set to be taken by the Area Councils, connected with the collection of tenement rates from any person or entity within the FCT are hereby nullified, set aside and rendered in effectual” has retrospective effect, and made without jurisdiction.
3. The Plaintiff did not pray for the Order made.
4. RELIEF SOUGHT FROM THE APPEAL COURT:
a) To set aside the judgment of the trial Court per Valentine B. Ashi J. delivered on the 12th of April 2018.
b) To allow this appeal in Suit No. FCT/HC/CV/2625/16 accordingly.”

The Appellant’s Brief of Argument dated 9th July, 2018 was filed on 13th July 2018 while the 1st Respondent’s Brief of Argument dated 5th November, 2018 was filed on 12th November, 2018 but deemed properly filed and served on 28th January, 2020. The appeal was heard on 5th February. 2020 when the learned Silk to the Appellant and 1st Respondent’s learned Counsel adopted their respective Briefs of Argument.

The learned Counsel to the Appellant C. I Okoye, Esq. who settled the Appellant’s Brief of Argument distilled four issues for determination of the appeal as follows:-

“1. WHETHER THE HONOURABLE COURT RIGHTLY IMPORTED SECTION 1(J) OF THE 4TH SCHEDULE OF THE 1999 CONSTITUTION (AS AMENDED), OR/AND SUO MOTU AMENDED OR CHANGED QUESTION NO.1 AND BRIEF NO. 1 OF THE AMENDED ORIGINATING SUMMONS (GROUNDS 1 (ONE) OF THE GROUNDS OF APPEAL).
2. WHETHER THE RESPECTIVE AREA COUNCILS IN THE FEDERAL CAPITAL. TERRITORY I.E. APPELLANT, 2ND, 3RD, 4TH, 5TH AND 6TH RESPONDENTS – ABAJI AREA COUNCIL, BWARI AREA COUNCIL, GWAGWALADA AREA COUNCIL KUJE AREA COUNCIL AND KWALI AREA COUNCIL ARE CONSTITUTIONALLY AND STATUTORILY EMPOWERED TO MAKE BYE-LAWS ON TENEMENT RATES, LEGITIMATELY AND IN COMPLIANCE WITH DUE PROCESSES MADE THEIR BYE-LAWS. (GROUND 2 (TWO) AND 4 (FOUR) OF THE GROUNDS OF APPEAL).
3. WHETHER THE HONOURABLE COURT ERRED IN LAW WHEN HE FAILED TO BE BOUND BY JUDICIAL DECISIONS OF THE SUPERIOR COURTS ON THE FACTS IN ISSUE, HENCE, BREACHED THE APPELLANTS RIGHTS TO FAIR HEARING, OCCASIONED MISCARRIAGE OF JUSTICE, (GROUND 3 (THREE) OF THE GROUNDS OF APPEAL.)
4. WHETHER THE ORDER Of THE HONOURABLE COURT NULLIFYING ALL THE ACTIONS TAKEN BY THE AREA COUNCILS IN FCT CONCERNING OR RELATING TO THE COLLECTION Of TENEMENTS RATES WERE MADE WITH

JURISDICTION. (GROUND 5 (FIVE) OF THE GROUNDS OF APPEAL).”

The learned Counsel to the 1st Respondent ROSEMARY EMOVON, ESQ submitted three issues for determination as follows:-
1. WHETHER THE MISTAKE OF COUNSEL IN OMITTING TO WRITE SECTION (1) OF SECTION (7) (1) (J) OF THE 4TH SCHEDULE OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC Of NIGERIA (AS AMENDED) IN THE QUESTION NO.1 AND BRIEF NO.1 SOUGHT BY THE 1ST RESPONDENT IN THE AMENDED ORIGINATING SUMMONS IS FATAL TO THE CASE OF THE 1ST RESPONDENT.
2. WHETHER THE COURT ERRED IN LAW BY HOLISTICALLY INTERPRETING SECTION (7) (1) (J) OF THE 4TH SCHEDULE OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), WHEN IT HELD THAT THE POWER AND CAPACITY TO ACCESS, DETERMINE, DEMAND, AND LEGISLATE ON THE TENEMENT RATE BY THE APPELLANT, 2ND, 3RD, 4TH, 5TH AND 6TH RESPONDENTS I.E. ABUJA MUNICIPAL COUNCIL, ABAJI AREA COUNCIL, BWARI AREA COUNCIL, GWASWALADA AREA COUNCIL, KUJE AREA COUNCIL AND KWALI AREA COUNCIL MUST BE IN STRICT COMPLIANCE WITH SECTION (7) (1) (J) OF THE 4TH SCHEDULE OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).
3. WHETHER THE LOWER COURT WAS

SEIZED WITH JURISDICTION WHEN IT HELD THAT ACTIONS TAKEN BY THE APPELLANT AND THE VARIOUS AREA COUNCILS IN THE FEDERAL CAPITAL TERRITORY PERTAINING TO COLLECTION OF TENEMENT RATES AMOUNTS TO A NULLITY.”

I wish to place on record that Appellant filed Reply Brief of Argument on 29/11/2020. It must be also stated that the 2nd – 6th Respondents did not file Briefs of Arguments. The appeal herein can be determined on the four issues formulated by the learned Counsel to the Appellant viz:-
1. WHETHER THE HONOURABLE COURT RIGHTLY IMPORTED SECTION 1(J) OF THE 4TH SCHEDULE OF THE 1999 CONSTITUTION (AS AMENDED), OR/AND SUO MOTU AMENDED OR CHANGED QUESTION NO.1 AND RELIEF NO. 1 OF THE AMENDED ORIGINATING SUMMONS. (GROUNDS 1 (ONE) OF THE GROUNDS OF APPEAL).
2. WHETHER THE RESPECTIVE AREA COUNCILS IN THE FEDERAL CAPITAL TERRITORY I.E. APPELLANT, 2ND, 3RD, 4TH, 5TH AND 6TH RESPONDENTS – ABAJI AREA COUNCIL, BWARI AREA COUNCIL, GWAGWALADA AREA COUNCIL, KUJE AREA COUNCIL AND KWALI AREA COUNCIL ARE CONSTITUTIONALLY AND STATUTORILY EMPOWERED TO MAKE BYE-LAWS ON TENEMENT RATES, LEGITIMATELY AND IN COMPLIANCE WITH DUE PROCESSES MADE THEIR BYE-LAWS. (GROUND 2 (TWO)

AND 4 (FOUR) OF THE GROUNDS OF APPEAL).
3. WHETHER THE HONOURABLE COURT ERRED IN LAW WHEN HE FAILED TO BE BOUND BY JUDICIAL DECISIONS OF THE SUPERIOR COURTS ON THE FACTS IN ISSUE, HENCE, BREACHED THE APPELLANT’S RIGHTS TO FAIR HEARING, OCCASIONED MISCARRIAGE OF JUSTICE. (GROUND 3 (THREE) OF THE GROUNDS OF APPEAL).
4. WHETHER THE ORDER OF THE HONOURABLE COURT NULLIFYING ALL THE ACTIONS TAKEN BY THE AREA COUNCILS IN FCT CONCERNING OR RELATING TO THE COLLECTION OF TENEMENTS RATES WERE MADE WITH JURISDICTION. (GROUND 5 (FIVE) OF THE GROUNDS OF APPEAL).

All the issues will be taken together.

In respect of Issue 1 as to whether the Court below suo motu amended or changed question No. 1 and Relief 1, the learned Counsel to the Appellant drew attention of this Court to page 182 of the record relating to the said question and relief 1. According to the learned Counsel the crux of question 1 on the Amended Originating Summons was for the lower Court to determine the powers and the validity of the Appellant/1st Defendant and 2nd, 3rd, 4th, 5th and 6th Respondents to access, determine, demand and legislate on tenement rate. He relied on the case of

ABACHA V FAWEHINMI (2000) 6 NWLR (PT. 660) 228 on the supremacy of the Constitution to argue that there is no Section in the 1999 Constitution as amended as Section 7(j) of 4th Schedule of the 1999 Constitution of Nigeria (as amended endorsed on the Originating Summons. That such section is non-existent. That the lower Court resolved issue 1 outside the “Section 7(j) of 4th Schedule of the 1999 Constitution of the Federal Republic of Nigeria as amended” endorsed on the Originating Summons, suo motu.

That this is contrary to the decision of the apex Court in FINNIH V IMADE (1992)1 NWLR (PART 219) 511. That 1st Respondent never at any time applied to the lower Court to amend question 1 and Relief No. 1 to read Section 1(j) of 4th Schedule to the 1999 Constitution of the Federal Republic of Nigeria thus meaning that the lower Court changed question one of the Amended Originating Summons and replaced it deliberately with Section 1(j) of 4th Schedule to the 1999 Constitution suo motu. He relied on the case of VICTINO FIXED ODDS LTD V OJO (2010) 8 NWLR (PT. 1197) 486 to the effect that Court should not set up case different from the one set up by the parties for

themselves.

In his Reply to the above submissions, the learned Counsel to the Respondent submitted that what happened was mistake of Counsel to the 1st Respondent in omitting No. 1 in the citation of Section 7(1)(j) of the 4th Schedule to the Constitution of Federal Republic of Nigeria, as amended and that it is not fatal to the 1st Respondents case. He submitted that it was an omission which has not gone to the root of the matter and it did not occasion a miscarriage of justice.

That the omission is at best a typographical error and as such a mere technicality which is not permitted in order to do justice relying on the case of OMOJU V FRN 33 NSCQR 96 A – C. That the era and reign of technicality is over. He cited and relied on the following cases viz:-
1. DAPIALONG V. DARIYE (2007) 30 NSCQR 1092;
2. ANKPA V. MAIKARFI (2010) ALL FWLR (PT. 506) 1992 G – H;
3. ADEGBENRO V. AKINTILO (2010) (PT. 544) ALL FWLR (PT. 174).

That the lower Court was not swayed by form or mere technicality but rather the trial Court was swayed by ideals of doing substantial justice. He relied on the case of OMOJU V FRN supra P. 96 G – H. He urged the Court

to discountenance the argument of the Appellant and decide the issue in favour of the 1st Respondent.

On issue 2 as to whether the six Area Councils in FCT are constitutionally empowered to make Bye-Laws on Tenement Rates the learned Counsel to the Appellant referred to the finding of the learned trial Judge on page 193 of the record wherein it held that the Appellant and 2nd – 6th Respondents have no powers to make bye laws on Tenement Rates to submit that by Section 1(j) of 4th Schedule to the 1999 Constitution of Federal Republic of Nigeria as amended provided for the main functions of a Local Government. He relied on the case of KNIGHT FRANK & BUTTEY (NIG) V. A.G. KANO STATE (1998) 7 NWLR (PT. 556) 1 to support his position that the Area Councils have the power.

That by virtue of Section 1(j) of 4th Schedule to the Constitution the word “may” was used, On the meaning of the word “may” he cited the case of MOKELU V. F.C.W.H (1976) 3 SC 60 and submitted that the provision of the said Schedule to the Constitution does not mandatorily impose a method of assessment of Tenement Rate by the National Assembly to give effect to the Constitutional

power of the Appellant to access, levy and collect Tenement Rates.

He stated that Niger State Local Government Edict is an existing law applicable in the Federal Capital Territory. That the Edict now an Act of National Assembly is contained in Vol. 3 L – 35 III Laws of Federal Capital Territory by virtue of Section 315 of the 1999 Constitution of CFRN as amended. That Section 13 of the FCT Act makes the said Niger State Edict of 1976 applicable in FCT. He relied on the case of ALHAJI USMAN GARKI ORS V INEC (APPEAL NO. CA/A/411/2010 delivered on 15-3-2013.

That by virtue Section 52 of the Local Government Act 1976 and Sections 55 and 56 thereof the Appellant and other Area Councils give them powers to make Bye-laws on Tenement Rates and collection of other rates.

That by adoption of the 1976 laws and Section 315 of the Constitution of the Federal Republic of Nigeria, powers are donated to the Appellant and 2nd – 6th Respondents to make Bye-laws fixing rates for collection from property owners or occupiers in the Federal Capital Territory which included tenement rates. That the lower Court was therefore wrong in its holding on page 193 of the

record to the effect that the Appellant and 2nd – 6th Respondents have no such powers.

In his own submissions under issue 2 provisions of Section 7(1)(j) of the 4th Schedule to the Constitution of Nigeria was relied upon by Learned Counsel to the Respondent to submit that a law made by a State House of Assembly cannot delegate powers to the Area Councils in FCT to access, determine and legislate on tenement rates.

On the meaning of the word “MAY” used in paragraph (j) of the 4th Schedule to the Constitution, he submitted that the word “may” is mandatory. He relied on the cases of:-
1. ADESOLA V ABIDOYE (1999)12 SCNJ 61;
2. ADESOLA V AYEOBA (2009) ALL FWLR (PT. 458) 355 AT 169 A-B:
3. UDE V NWARA (1993) 2 NSCNJ 47;
among many cases cited.

On how to interpret the provisions of the said Section 7(1)(j) of 4th Schedule, he submitted that the Court should employ literal interpretation to find out the real meaning and intention of the Constitution. That the Constitution talked of Act of National Assembly not that of the Appellant. That the National Assembly has superior powers in legislation and that the Niger State law cannot be an

applicable law.

On issue 3 as to bindingnesss of decisions of higher Courts on the lower Courts the learned Counsel to the Appellant contended that the real issue in controversy was the powers of Appellant and 2nd – 6th Respondents to make bye-laws fixing rates and to implement provisions of Bye-law on tenement rates.

That there are binding decisions of Supreme Court and Court of Appeal on the issue and that the apex Court and this Court have resolved the issues in favour of the Appellant. He referred to the following cases:-
1. KNIGHT FRANK & RUTLEY (NIG) & ANOR VS A.G. KANO STATE (1998) LPELR 1694 SC;
2. AFDIN VENTURES LTD & ORS V. CHAIRMAN ABUJA MUNICIPAL AREA COUNCIL (2014) LPELR – 23509 (CA).
3. NEXT LEVEL RESORT V AMAC SUIT FCT/CV/1072/2011.

That lower Court was bound to follow precedents and conforms with doctrine of stare decisis relying on DINGYADI & ANOR V INEC & ORS (2011) LPELR – 950 (SC),
He urged the Court to resolve the issue in Appellants favour.

In response to this aspect of the Appellants submissions, the learned Counsel to the 1st Respondent stated that the fact in issue in this

case is the power of the Appellant and 2nd – 6th Respondents in FCT to assess and determine Tenement Rates to be collected as may be prescribed by the National Assembly. That due process was not followed.

On issue 4 as to whether the lower Court has the jurisdiction to nullify all actions taken by Appellant and 2nd – 6th Respondents to collect Tenement Rates, the learned Counsel to the Appellant referred to the finding of the learned trial Judge’s finding on page 194 of the record setting aside all actions taken by the said Area Councils in connection with collections of Tenement Rates from any person.

That pursuant to Section 7 of the Constitution, Appellant and 2nd – 6th Respondents promulgated Tenement Rate Collection Bye-Law (No. 22) 2012. That the Orders made by trial Court has retrospective effect and as such made without jurisdiction. He relied on the case of ISICHEI V INEC (2009) LPELR -4338 CA on when judgment takes effect.

That it is the Plaintiffs case that determines jurisdiction of Court. He relied on the case of AMAECHI V INEC (2007) 9 NWLR (PT. 1040) 504 AT 5333 – 534 E – A CA. He stated that Plaintiff did not pray for any order

nullifying all actions taken by the Area Councils in connection with collection of tenement rates from any person. He urged the Court to allow the appeal.

In response to the above submissions, the learned Counsel to the 1st Respondent submitted that Courts are invested with jurisdiction and powers to entertain matters brought before and that this will entail relying on the processes filed by the Plaintiff. He relied on the cases of INAKOJU V ADELEKE & ORS (2007) 29 NSCQR 968 A – B and ADELEKE V OYO STATE HOUSE OF ASSEMBLY (2007) ALL FWLR (PT. 45) 2006 16 NWLR 608 and that that is the principle that guided the Court. He urged the Court to uphold the judgment of the Court below.

The Appellant filed Appellants Reply Brief of Argument. I have perused it and I am of the firm view that it is a repetition of all arguments in the main brief of the Appellant. The said Reply Brief is hereby discountenanced.

Now declaration sought in paragraph 3 (a) of the Amended Originating Summons by the Respondent as the Plaintiff at the Court below was based on Section 7(j) of the 4th Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended)

The Appellant complained that the Learned trial Judge suo motu changed the relief claimed under paragraph 3(a) aforesaid in his judgment on page 194 when he held as follows:
“2. It is further hereby declared that the various Bye-laws enacted by the Area Councils at various times for the collection of tenement rates from owners or occupiers of property within the respective territorial jurisdictions of the Area Councils comprised in the FCT are unconstitutional, null and void in that they constitute an epitome of usurpation of the powers of the National Assembly as prescribed In Section 1(j) of the 4th Schedule to the 1999 Constitution as amended.
3. All actions taken or set to be taken by the Area Councils, connected with the collection of tenement rates from any person or entity within the FCT are hereby nullified, set aside and rendered ineffectual.
4. All the Area Councils in the FCT are hereby jointly and severally prohibited from taking further steps whatsoever aimed at giving effect to the purported Bye-laws for the collection of tenement rates from any person or entity, pending whenever the National Assembly shall give

effect to the provision of Section 1 (J) of the 4th Schedule to the 1999 Constitution as amended.”
To the Learned Counsel to the Appellant, the reliefs were granted under a non-existent law and as such are a nullity. The Respondent’s Counsel saw it as mistake of Counsel or at best a typographical error.
The law is settled that a Court should not generate controversy in his judgment by delving into matters or issues not joined by the parties and submitted for adjudication otherwise the Court will be acting contrary to its character as an impartial umpire or adjudicator it is expected to be and as mandatorily and constitutionally demanded of every Court or Tribunal vide Section 36(1) of Federal Republic of Nigeria 1999 as amended. The section provides;
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
Thus it is not right for a Court

to raise matter suo motu and decide the point or issue in the absence of the parties without affording them the opportunity to be heard having regard to our adversary system of adjudication. See:
1. SOUTH ATLANTIC PETROLEUM LIMITED V. THE MINISTER OF PETROLEUM RESOURCES & ORS (2018) 6 NWLR (PART 1616) 391 AT 413 G – H TO 414 per AUGIE, JSC who said:
“The appellant’s position is that it raised suo motu, the question of the expiration of OPL 246 without inviting or giving parties an opportunity to address it, and it proceeded to use the expiration of the OPL as a basis for dismissing the appeal. It cited the following – Oje V. Babalola (supra) at 280, paras. D-G wherein Nnaemeka-Agu, JSC, stated –
There are occasions when a Court may feel that a point, which has not been raised by one of the parties, is necessary for consideration in order to reach a correct decision in a case. In the few cases when this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel, as the case may be, so that they may address him on the point before he could base his decision on it. It is not

competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing.
…In this country, this is a constitutional right and this Court has always insisted that on no account should a Court raise a point suo motu and, no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties”.
– Lahan V. Lajoyetan (supra), at 200 wherein this Court also observed –
We regret we cannot but repeat, that a procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.
2. OLUWAROTIMI ODUNAYO AKEREDOLU V. DR. OLUSOGUN MICHAEL ABRAHAM & ORS (2018) 10 NWLR (PART 1628) 570 AT 532 A -C PER OKORO, JSC who said:
“The Court below after reviewing the above decision of the trial Court, asked a pertinent question to wit: Whether the learned trial Judge raised

suo motu the issue of the appellant carrying on a substantial part of his law business in Abuja. Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. SeeOshodi & Ors V. Eyifunmi & Ors (2000) 13 NWLR (Pt. 684) 298 at 332; Mojekwu V. Iwuchukwu (2004) 11 NWLR (Pt. 883) 196; Odedo V. PDP & Ors (2015) LPELR- 24738 (SC), reported as Odedo V. Oguebego (2015) 13 NWLR (Pt. 1476) 229.”
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 from lower Court.
It is glaring that the Learned Counsel to the Respondent crafted the reliefs sought to a wrong provisions of the constitution. The Learned Counsel to the Appellant also cited the relevant provision of

the constitution wrongly. The relevant provisions of the constitution is neither Section 7 (1) (j) of the Constitution nor is it Section 1(1) (j) of the Fourth Schedule to the Constitution.
What the Plaintiff now Respondent wanted to prove is that by virtue of Section 7 of the Constitution of the Federal Republic of Nigeria 1999 as amended and paragraph 1 (j) of the Fourth Schedule to the said Constitution, the Appellant and 2nd – 6th Respondents lack statutory and constitutional powers to make or pass any Bye-law or make any subsidiary legislation to assess privately owned houses or impose any tenement rate in respect thereof unless there is a law in place passed by the National Assembly in that behalf.
The Appellant comprehensively joined issues with the Respondent on the issue and even went to the extent of stating that there was/is a law in existence deemed made by the National Assembly pursuant to Section 315 of the CFRN. This means that the Appellant is not misled as to the claims of the Respondent and the provisions of the Constitution the Respondent relying upon.
Citing a law or provisions of the 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 seized of the matter.
If a Court has constitutional or statutory jurisdiction or powers to exercise a particular discretion or power, the fact that he acted under a wrong law will not vitiate his action, Order or decision made thereunder. See WITT & BUSCH LTD V DALE POWER SYSTEM PLC (2007) LPELR-3499 (SC) per OGBUAGU, JSC who said:-
“Where a Court has Jurisdiction to make an order, the fact that the power of Court is invoked under a wrong law or rule of Court, is no reason for, not making the order or where it is made, it is no reason for setting it aside see, also the case of Salawu Oke & Ors V. Mustin Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548.”
The right to fair hearing of the Appellant was not affected or jeopardized in any way on account of wrong citation of the relevant section or paragraph of the Schedule 4 to the 1999 CFRN as amended as it happened at the lower Court.
However, the Learned Counsel to parties in an action as well as the Courts must at

all times strive to cite the case law, statutes and the relevant sections or provisons of the constitution correctly in order to obviate unnecessary confusion in the hearing and adjudications upon matters brought before the Court.
Issue one is resolved against the Appellant.

On issue 2, it is here relevant to reproduce what the learned trial Judge said on page 193 of the record which is as follows:
“Now, taking into account what has been said earlier on, which is that it 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, it follows that the various bye-laws made by the Area Councils in the FCT, for the specific purpose of collecting tenement rates, by whatever name called and howsoever described or couched are not made within the framework of the law, in force. There is absence of substantive due process in the making of these Bye-laws. This is not to say that the Area Councils have no power to collect the rates complained of but the constitution has provided for how and who ought to provide the template, independent of the

various Area Councils. It is on account of the ‘forgoing that I hereby refuse to answer the 1st question endorsed on the Originating Summons in the affirmative. In other words, the defendants have acted ultra vires their powers as provided in Section 1(1)(j) of the 4th Schedule to the 1999 Constitution, as amended.”
The finding of the Learned trial Judge over-looked the stand point and argument of the Appellant to the effect that the Federal Capital Territory Act Cap F – 6 LFN/2004 which is an Act of National Assembly, the provisions of Niger State Local Government Edict of 1976 was made applicable to the Federal Capital Territory concerning and pertaining to matters covered under Paragraph 1 (j) 4th Schedule to the 1999 Constitution as amended. Specifically, Sections 55 and 56 of the said Niger State Local Government relating to 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 are by the Federal Capital Territory Act F – 6 2004 made applicable to the Federal Capital Territory to among other things enable the six Area Councils in the Federal Capital

Territory take steps to realize and perform the functions bestowed upon them by the Constitution.
The Appellant, ABUJA MUNICIPAL AREA COUNCIL and the 2nd – 6th Respondents are legally entitled to rely on the Federal Capital Territory Act Cap F – LFN 2004 being a deemed Act of National Assembly of Nigeria to make the bye-laws, the ABUJA MUNICIPAL BYE-LAW 2012 NO. 22 VOL. 99 dated 11th January, 2012 – Abuja Municipal Council (AMAC) Tenement Bye-Law NO. 22 VOL. 2012. It cannot be said that the there is no law or Act in existence which empowers the six Area Council in the Federal Capital Territory to make such Bye-Laws. The Learned trial Judge ought to have taken judicial notice of the fact that the adoption or adaption of the Niger State Local Government Law 1976 particularly Sections 52, 55 and 56 thereof by the National Assembly vide Section 315(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, it must be taken that the National Assembly had in pursuant of Section 7 of the 1999 Constitution and Paragraph (1) (j) of the 4th Schedule to the said Constitution has actually prescribed method and modalities by which the six Area Council

in the Federal Capital Territory will carry out one of their main functions which is assessment of privately owned houses or tenements for the purpose of levying such rates.
The law enjoins all Courts to take judicial Notice of all laws Gazette, statutory instruments, Legal Notice and Act of National Assembly including laws deemed passed by it published for the information of the Public. The relevant law empowering the Appellant and 2nd – 6th Respondents are contained in the Laws of the Federation of Nigeria and in particular FCT Act, CAP F6 LFN 2004 which in this case is the applicable law deemed made to realize and actualize the intendment of Paragraph (1) (j) Fourth Schedule to CFRN 1999 as amended. See 1. Section 122(1) (2)(a) and (b) of the Evidence Act which provide as follows:
“122 (1) No facts of which the Court shall take judicial notice under this section needs to be proved.
(2) The Court shall take judicial notice of:
(a) all laws or enactments and any subsidiary legislation made under them having the force of law or previously in force in any part of Nigeria.
(b) all public Acts or Laws passed or to be passed by the National

Assembly or State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Act or laws directed by the National Assembly or a State House of Personal Act or laws directed by the National Assembly to be judicially noticed:
(2) CHIEF EMMANUEL OLATUNDE LAKANMI V. PETER ADEBAYO ADENE (2003) 10 NWLR (PART 828) 353 AT 374 per KALGO, JSC who said:
“I have already found earlier in this judgment that Decree No. 28 of 1970 had completely nullified the effect of the judgment of the Supreme Court in SC58/69. Therefore the western State of Nigeria forfeiture Order 1967, WSLN 99 of 1967, stands valid and enforceable and being a published legal enactment or instrument, it was not necessary in the circumstances of this case to plead it or tender it in Court before a Court can consider it, see Section 74 of Evidence Act and FCDA V. Naibi (1990) 3 NWLR (Pt. 138) 270.”
I am not unmindful of the arguments of Learned Counsel Respondent in paragraphs 5.9 and 5.10 of the Respondent’s Brief of Argument wherein he stated thus:-
“The Appellant in page 13 (Para 021) submitted that there is an existing law (NIGER

STATE LOCAL GOVERNMENT EDICT VOL. 3 L-351 LAWS OF FEDERAL CAPITAL TERRITORY), and as such the National Assembly does not require enacting a separate law distinct from the existing law authorizing the Appellant to access, levy and collect Tenement rate.
The pertinent question therefore is why then is the assessment for the purpose of levying tenement rates in the FCT not done in accordance with the said NIGER STATE LOCAL GOVERNMENT EDICT VOL. 3 L- 351 LAWS OF FEDERAL CAPITAL TERRITORY?
5.10 It is our submission on issue two that Section 7(1)(j) of the 4th Schedule of the Constitution of the Federal Republic of Nigeria 1999 (As amended) specifically directs the due process on the assessment of tenement rate as may be prescribed by the State Houses of Assembly and the National Assembly in the case of the FCT.”
The above submission is grossly unfounded and bases on lack of appreciation of issues in contention. The Respondent was clearly told and knew that the Tenement Rate Demand Notice(s) made it clear that the Appellant acted pursuant to Section 7 and Paragraph (1) (j) of 4th Schedule to 1999 Constitution. Federal Capital Territory Act Cap 503 LFN

2004) (vol. 3) as amended; Taxes and Levies Act No. 21 of 1998 and AMAC Bye Laws including AMAC Bye-law (No. 22) of 2012. The Niger State law as adapted and made applicable to Federal Capital Territory can be found in vol. 3 – 35 Laws of Federal Capital Territory which contained laws in force in FCT as at 31st December, 2006. The Respondent cannot under any guise feign ignorance of the fact that the said existing laws are deemed made by the National Assembly under which the Appellant acted.
Issue 2 is hereby resolved against the Respondent in favour of Appellant.

In respect of Issue 3, the Learned Counsel to the Appellant seriously canvassed that the lower Court is guilty of the breach or violation of the doctrine of judicial precedent by stare decisis which enjoins all Courts below the Court of Appeal and Supreme Court to be bound by decision of the said higher Courts.
The doctrine of stare decisis has been given a place of pride in Section 287 of the Federal Republic of Nigeria 1999 as amended. The doctrine has been reiterated and strongly affirmed in numerous decisions of the apex Court in the land. Suffice to refer to two of them:

CYRIL O. OSAKUE V. FCE (TECHNICAL) ASABA & ORS (2010) 5 SCM 185 at 203 G – I per OGBUAGU who said:
“As for hierarchy of the Courts, it is now settled that the ratio decidendi of a case, is the reason for the decision, the principle of the decision Court lower in the judicial hierarchy, is, bound by the ratio decidendi of a higher Court not necessarily the obiter dictum. Stare decisis, means to abide by former precedents where the same points came again in litigation. It presupposes that the law has been solemnly declared and determined in the farmer case. It does, precludes the Judges of the subordinate Courts, from changing what has been determined. Thus, under the doctrine of stare decisis, lower Courts, are bound by the theory of precedent. So said this Court in the case of Mrs. Clement Anor. V. Mrs. Iwuanyanwu & Anor. (1989) 14 SCNJ (PUD 213 & 220). See also the case of Osho V. Foreign Finance Corporation (1991) 5 SCNJ. 52.”
2. ALHAJI M. DINGYADI & ANOR V. INEC & ORS (2011) 10 NWL (PART 125) 347 at 401 H to 402 A – E per ADEKEVE, JSC who said:

determined. Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the Constitution. The hierarchy of Courts shows the limit and powers of each Court. It Is to ensure that hierarchy of the Court is never in issue.
Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) pg. 254; 7Up Bottling Co. Ltd. V. Abiola & Sons (Nig) Ltd. (1995) 3 NWLR (Pt. 383) pg. 254: Osho V. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) pg. 157: Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) pg. 310: University of Lagos V. Olaniyan (1985) 1 NWLR (Pt. 1) pg. 156.
The doctrine of judicial precedent does not involve an exercise of judicial discretion at all. It is mandatory.”

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 AFDIN VENTURE LIMITED & ORS V. CHAIRMAN, ABUJA MUNICIPAL AREA COUNCIL (2014) LPELR – 2350 (CA) which are on all fours with this case on appeal. The two issues raised in the said case decided by the Court are:
“1. Whether the 1st Defendant has the right to demand and collect tenement rate from the Appellants by Exhibit “A” as held by the trial Court.
2. Whether the 1st Defendant as an Area Council has the right to issue a Bye-law to perform its constitutionally assigned functions under the Fourth Schedule particularly Paragraph 1(b) and (j) of the Fourth Schedule to the 1999 Constitution, as amended and whether the trial Judge was right in holding so.”
And on page 20 – 21 this Court as per JOSEPH TINE TUR, JCA held:
“A combined reading of the above provisions of the Act will show that the President is to exercise powers in the Federal Capital Territory, Abuja by Federal Gazettes or through regulations, and may make such changes in the text of the Laws set out in the 2nd Schedule to the Act as to bring them into conformity with the provisions of the

Act. Therefore the submission of the learned Counsel to the appellants that the Minister, acting under delegated powers or authority cannot make or enact a Bye-law for the assessment of privately owned houses or tenements for the purpose of levying such rates as prescribed by the Bye-law has no support under the provisions of Sections 13(1), (2) , (3)(a) (b) , (4), 14 and 15 of the Federal Capital Territory Act Cap 128, Laws of the Federation of Nigeria, 1990.
The Minister of the Federal Capital Territory, Abuja also has the statutory powers to adapt and modify the laws applicable in any State of the Federation, example, Niger, Plateau, Kaduna States, including those of the Former Capitol Territory, Lagos to bring them into conformity with the Constitution of the Federal Republic of Nigeria. In particular, references in any such laws to the region, state or Federal Capital Territory of Lagos shall, unless the context otherwise requires, be construed as references to the Federal Capital Territory, Abuja. See Section 13(a) of the Act (supra). Section 13(1) of the Act (supra) applies “In addition to any law having effect, or made applicable throughout

the Federation” as well as “the laws set out in the schedule to this Act” provided they were in existence as from 9th May, 1984. Learned Counsel to the appellants appreciated this when he argued at page 11 paragraph 8.9 of the brief that:
“… The Niger State Government Edict of 1976 was made applicable to the Federal Capital Territory Abuja since 9th May, 1984 but the purported Bye-law was made in 2001, a period of 17 years interval. Regrettably, a bye-law is a subsidiary legislation and cannot exist on its own or generate an independent statutory provision. It must follow the fate of its principal statute (if any). See Osadebay V. Attorney-General Bendel State (supra).”
In view of the definition of the word “regulation” or “subsidiary instrument” under Sections 18(1) and 37(1) of the Interpretation Act read together with Sections 13(1)-(4), 14 and 15 of the Federal Capital Territory Act (supra) which includes a Bye-law or an enactment such as the Federal Capital Territory Act, I am of the candid opinion that the above submission is without substance. No time limit is Imposed on the President or the Minister charged with

responsibility for the Federal Capital Territory, Abuja to enact regulations or Bye-laws for carrying into effect the provisions of the Act.
In Knight, Frank & Rutley V. Attorney-General, Kano State (1990) 4 NWLR (Pt.143) 210, Mohammed, JCA (as he then was) commenced the Judgment in the Court of Appeal, Kaduna Division at page 215 as follows:
“The single issue for determination of this appeal is whether the contract which the Kano State Government signed with the appellants to prepare a valuation list of rateable hereditaments within Kano Municipality is void. The purpose of the valuation is to enable the State Government to charge and collect tenement rates…”
And on page 23 – 24 this Court also held:
“There is nothing to show that the Minister in-charge of the Federal Capital Territory, Abuja has in any way usurped the functions of the Abuja Municipal Area Council in the Implementation of Paragraph 1 (j) of the 4th Schedule to the Constitution hence the lower Court dismissed him from the proceedings in the Court below and there is no appeal against the dismissal. Therefore, in the case of the Federal Capital

Territory, Abuja the Minister has the constitutional and legal power and authority to adapt and modify regulations, Bye-laws, orders or subsidiary instruments, etc, in order to establish the necessary machinery for the assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the Minister as the appropriate authority for the Federal Capital Territory, Abuja. The same applies with the six Area Councils within the Federal Capital Territory, Abuja.
The question is: What Is a Bye-law? A “Bye-law” or “Bylaw” is “1. Parliamentary law: (usu. pl.) A rule or administrative provision adopted by an organization for its internal governance and its external dealings. Although the bylaws may be an organization’s most authoritative governing document, they are subordinate to a charter or articles of incorporation or association or to a constitution. The “Constitution and bylaws’ are sometimes a single document.” See Blacks Law Dictionary, 9th edition, page 228.
It is fallacious to submit that without the passing of the bill before the National Assembly,

the respondent lacks the vires to enforce Paragraph 1(j) of the 4th Schedule to the Constitution by invoking the Abuja Municipal Area Council Bye-Law No.12, Vol.90 of 7th April, 2003. If a bye-law is a rule or administrative provision adopted for the internal governance of Abuja Municipal Council and its external dealings with the public, and is an authoritative document subordinate to the Constitution, my humble view is that the respondent has the powers to publish or enact Bye-laws for the implementation of Paragraph 1(j) of the 4th Schedule to the Constitution (supra).”
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 in AFDIN VENTURES LIMITED & ORS V. CHAIRMAN ABUJA MUNICIPAL AREA COUNCIL (supra).
The Appellants, the 2nd – 6th Respondents have powers under the Constitution of the Federal Republic of Nigeria 1999 as amended Section 7 thereof and Paragraph 1 (j) of the 4th Schedule to the said Constitution and pursuant to

the existing laws aforesaid 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 made by the National Assembly of Nigeria pursuant to Section 315 of the Constitution of Federal Republic of Nigeria 1999 as amended to make the said Bye laws as was done by Appellant in the case.
Issue 3 is resolved against the Respondent in favour of Appellant.

Issue 4 has to do with all the orders (2, 3 and 4) made by the trial Judge on page 194 of the record viz:
“2. It is further hereby declared that the various Bye-laws enacted by the Area Councils at various times for the collection of tenement rates from owners or occupiers of property within the respective territorial jurisdictions of the Area Councils comprised in the FCT are unconstitutional, null and void in that they constitute an epitome of usurpation of the powers of the National Assembly as prescribed in Section 1(j) of the 4th Schedule to the 1999 Constitution as amended.
3. All actions taken or set to be taken by the Area Councils, connected

with the collection of tenement rates from any person or entity within the FCT are hereby nullified, set aside and rendered ineffectual.
4. All the Area Councils in the FCT are hereby jointly and severally prohibited from taking further steps whatsoever aimed at giving effect to the purported by-laws for the collection of tenement rates from any person or entity, pending whenever the National Assembly shall give effect to the provision of Section 1(j) of the 4th Schedule to the 1999 Constitution as amended.

I have no doubt in my mind and having regard to the fact that issues 2 and 3 have been resolved in Appellant’s favour, that the lower Courts findings in 2, 3 and four as reproduced cannot stand and are hereby adjudged as orders and decisions reached or made without jurisdiction. They are at variance with the powers, duties and functions conferred on the Appellant and 2nd – 6th Respondent vide Paragraph (1) (j) of the 4th Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended.
Issue 4 is also resolved in favour of the Appellant.
The Appellant’s appeal is meritorious and the Appellant’s appeal is

hereby allowed.
Consequently, the judgment of the High Court of Justice, Federal Capital Territory delivered by HON. JUSTICE VALENTINE B. ASHI on 12th April, 2018 is HEREBY set aside.
The 1st Respondent shall pay costs of N100,000.00 (One Hundred Thousand Naira) to the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.
My learned brother has remarkably and elaborately dealt with all the issues raised in this appeal.
I am in agreement with his reasoning and conclusion that this appeal has merit. I too, do allow this appeal and I abide by the consequential orders inclusive of the order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I agree.

Appearances:

CHIEF KARINA TUNYAN (SAN), with him, C. I. OKOYE, ESQ, GABRIEL OKPATA, ESQ. R. A. OLUTEKUNBI, ESQ and C. NWAOKORIE For Appellant(s)

CHARLES OSAGIE, with him, E. U. THOMAS for 1st Respondent
MIKE ODEY – for 2nd – 6th Respondents For Respondent(s)