ATTORNEY-GENERAL OF CROSS RIVER STATE & ANOR. v. MATTHEW OJUA, ESQ. (2010)

ATTORNEY-GENERAL OF CROSS RIVER STATE & ANOR. v. MATTHEW OJUA, ESQ.

(2010)LCN/3630(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of March, 2010

CA/C/03/2009

RATIO

APPEAL: EFFECT OF FAILURE IN COMPILING THE RECORDS OF THE LOWER COURT TO THE APPEAL COURT WITHIN THE PRESCRIBED TIME

The failure by the Appellant in not compiling the records and transmitting them to this court within 30 days after the expiration of the days allowed the Registrar of the lower court to compile the records cannot impinge on the validity of the records so compiled or the appeal itself. It would have had an effect if the respondent had taken steps to have the appeal struck out or dismissed for lack of diligent prosecution. See: Order 8 Rule 18 Court of Appeal Rules, 2007. PER KUMAI BAYANG AKAAHS, J.C.A.

CONSTITIONAL LAW: EFFECT OF INCONSISTENCY OF ANY ACT OF THE NATIONAL ASSEMBLY OR ANY LAW WITH THE CONSTITUTION

If any provision of an Act of the National Assembly or any other law is in conflict with a provision of the Constitution, that Act or law is unconstitutional and therefore void. See EMESIM v. NWACHUKWU (1999) 1 NWLR (Pt.605) 154; ABACHA v. FAWEHINMI (2000) 6 NWLR (Pt.660) 228; ADISA v. OYINWOLA (2000) 10 NWLR (Pt.674) 116. PER KUMAI BAYANG AKAAHS, J.C.A.

INTERPRETATION: WHETHER THE PROVISIONS OF SECTION 2 AND 8 OF THE URBAN DEVELOPMENT TAX LAW OF CROSS RIVER STATE ARE INCONSISTENT WITH SECTION 7(5) OF THE 1999 CONSTITUTION

“It is clear from the foregoing that the collection of rates on rateable hereditaments and the assessment of rates on privately owned houses are subjects within the responsibilities of Local Government Councils.”

Ogwuegbu JSC in his contribution agreeing with the lead judgment held that even though a State Government has the power under Section 7(1) and (2) of the Constitution to establish and define the areas of local government councils and to ensure their existence under the law establishing it, it has no power to enter into contract with the appellants over a subject-matter within the competence of the local government councils. He held the view at page 27 that

“There is everything wrong in the State Government entering into the contract with the appellants. Given the circumstances of this case, I would say that the Kano State Government was meddling in the affairs of the Local Government Councils… I must here emphasise that Local Governemnt Councils should be spared this type of illegitimate intrusion or interference by State Government in functions specifically assigned to the former by the Constitution.”

Ogundare JSC, who dissented was ready to go along with the majority judgment when he stated at page 34 that,

“What I believe the State Government cannot do is, to, itself, assess and collect rates.”

By vesting the power to undertake or cause to be undertaken an assessment of taxable property and the recovering of such property tax by the Commissioner responsible for Finance, the Cross River State Government had indeed done what Ogundare JSC said it could not do. The effect of this law if it is allowed to stand would be render the Local Governments of the five towns listed in the Schedule (i.e. Calaba, Ikom, Ogoja, Obudu and Ugep) financially impotent; hence they will be unable to discharge the functions that have been assigned to them by the Constitution. Although slight changes have been made in the 1999 Constitution, this has not materially altered the scope within which the State House of Assembly may go in its duty of making laws affecting the Local Government Councils. I am in total agreement with the Respondent when he submitted in his brief that property tax is fitting to be collected by the Local Governments because of the onerous responsibilities imposed on the said tier of Government by the Constitution. The promotion of tourism which could be said to be the raison d’etre for the enactment of the Urban Development Authority Law could conveniently have been added to the functions to be performed by the Local Governments. In the alternative the State should look for other sources of revenue not meant for the Local Governments to enable it realize the objectives of the Urban Development Authority Law. If the Local Governments are to successfully discharge their responsibility such as the construction and maintenance of roads, street lighting, drains, parks, gardens and open spaces which are necessary for tourism to thrive, the power to generate funds from privately owned houses must not be taken away from them. An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it. See Section 10(2) Interpretation Act, A-G ONDO v A-G OF FEDERATION (2002) 9 NWLR (Pt. 772) 222. If the Constitution has given the function of assessing and collecting property tax to Local Governments the State House of Assembly cannot validly make any law conferring the assessment and collection of that same tax to the State Government or any agency of the State Government. Uwais CJN, put it succinctly thus in KNIGHT FRANK & RUTLEY (NIG) v. A-G, KANO STATE supra at 19:

“It is clear from the Provisions of Paragraph 1(b) and (i) of the Fourth Schedule read together with the provision of Section 7(5) of the Constitution that the intendment of the constitution is that only Local Government Councils have the power to assess and impose rates on privately owned property.”

This being the case the Urban Development Tax Law Cap U3 Laws of Cross River State 2004 is inconsistent with Sections 4(7) 7(5) of the 1999 Constitution read along with paragraph D 10 of the Second Schedule and paragraph 1(b) & (j) of the Fourth Schedule to the 1999 Constitution. The State House of Assembly cannot lawfully legislate and deprive any Local Government Council the function assigned to it under the Constitution by excising certain towns in the State and giving the power to assess and collect rates on privately owned houses to the State Government for the purpose of promoting tourism in the State.

I declare Sections 2 and 8 of the Urban Development Tax Law Cap U3 Laws of Cross River State 2004 as being inconsistent with Section 7(5) of 1999 Constitution read along with paragraph 1(b) & (j) of the 4th Schedule to the 1999 Constitution and to that extent they are unconstitutional, null and void. PER KUMAI BAYANG AKAAHS, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria

JEAN OMOKRI Justice of The Court of Appeal of Nigeria

Between

1. ATTORNEY-GENERAL OF CROSS RIVER STATE
2. CROSS RIVER STATE BOARD OF INTERNAL REVENUE – Appellant(s)

AND

MATTHEW OJUA, ESQ. – Respondent(s)

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Respondent, a legal practitioner and property owner in Ikom, Cross River State of Nigeria was served with assessment notices for the payment of Urban Development Tax, Tenement Rate, Sanitation Levy and Refuse Collection charges in respect of his properties located in Ikom in 2005. He challenged by an Originating Summons the Urban Development Tax Law 2004 upon which the assessment was predicated since he is paying similar taxes to the Local Government and sought for the following reliefs:-
1. A Declaration that by virtue of the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T.2 LAWS OF THE FEDERATION 2004, and the doctrine of covering the field, the Cross River State URBAN DEVELOPMENT TAX LAW 2004 is unconstitutional, illegal, null and void and of no consequence whatsoever.
2. An order setting aside Assessment Notices for the payment of Urban Development Tax, Tenement rate, Refuse Collection Charge and Sanitation Levy on the plaintiff’s properties.
He also sought for the determination of the following questions:
1) Whether the Cross River State Government can impose and collect taxes and levies outside those specified in Part II for collection by State Governments in the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP. T. 2 LAWS OF THE FEDERATION 2004?
2) Whether the Assessment Notices served on the plaintiff are not in conflict with the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T2 LAWS OF THE FEDERATION 2004?
3) Whether the Cross River State Government has power and capacity to legislate, determine and demand taxes and levies outside the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT CAP T2 LAWS OF THE FEDERATION 2004?
4) Whether the Cross River State URBAN DEVELOPMENT TAX LAW 2004 is not inconsistent with the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT, CAP T2 LAWS OF THE FEDERATION 2004? And if the answer is in the affirmative, whether it should not be declared null and void?
The matter proceeded to trial on affidavit evidence and addresses of counsel. After taking exhaustive arguments from the parties, the court found in favour of the respondent and declared the Urban Development Tax Law 2004 unconstitutional, null and void for being inconsistent with the Taxes and Levies (Approved List for Collection) Act, Cap. T2 Laws of the Federation 2004 and accordingly set aside the assessment notices served on the respondent. Dissatisfied with the judgment of the High Court, the appellants appealed to the Court of Appeal in a Notice of Appeal dated 16/9/2008 but filed on 31/10/2008 containing five grounds from which the following issues were distilled:-
1. Whether the Urban Development Tax Laws of Cross River State was competently made to validate the taxes levied on the Respondent’s property under it.
2. Whether the provisions of Taxes and Levies (Approved List for Collection) Act, Cap T2 No.21 of 1998 can derogate from the valid exercise of the powers of the Cross River State Government under the Constitution to legislate and impose tax?
3. Whether Cap. T2 was promulgated to create an invariable and exhaustive list of taxes to be assumed as an amendment to the Constitution?
4. Whether the doctrine of “covering the field” applies in the circumstances of this case?
5. Whether the Urban Development Tax Law of Cross River State amounts to creating a law to inflict double taxation?
Before formulating a lone issue for determination the respondent raised preliminary objection to issues 3, 4 and 5 arguing that they do not derive from ground 5. Furthermore that all the issues were distilled from ground 4 which is in breach of the principle that parties cannot formulate more than one issue from a ground of appeal. He urged this court strike out the issues the issues raised by the appellants as well as ground 1, 2, 3, and 5 since no issues were raised from them. He also observed that the Registrar of the lower court transmitted records of appeal to the registry of the Court of Appeal on 14/1/09 well over the sixty days allowed by Order 8 Rule 1 Court of Appeal Rules 2007 and the appellants took no steps to comply with Rules 4 and 5. The lone issue which the Respondent distilled for determination is.
WHETHER THE LOWER COURT WAS RIGHT IN DECLARING THE URBAN DEVELOPMENT TAX LAW CAP U3, LAWS OF CROSS RIVER STATE 2004 UNCONSTITUTIONAL, NULL AND VOID FOR BEING INCONSISTENT WITH THE TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) ACT, CAP T2 LAWS OF THE FEDERATION 2004?
Senior counsel for the Appellants filed a Reply Brief in response the preliminary objection. He maintained that there are no multiplicity of issues from a ground of appeal as Issue 1 derives from ground 4; issue 4 from ground 3 and issue 5 from ground 5. He said issue 2 is derived across grounds 4 and 5 and is a corollary to issue 1. It is therefore clear that issues 1, 2, and 5 were distilled from ground 4 and 5 and so there is a multiplicity of issues from these two grounds of appeal, a practice the court frowns at.
The grounds of appeal shorn of their particulars are:-
1. The learned trial Judge erred in law in assuming jurisdiction over the case when, property construed, the same was no. properly constituted and therefore the court lacked jurisdiction to entertain the case.
2. The learned trial Judge erred in law when he held as follows–
(b) Limiting their conclusion to issues 1 and 2 speaks in lucid clarity of abandonment of issue 3. The kinetic explosion of the abandonment issue 3 is ground breaking To now lie in their concluding mouth for me to dismiss the suit is a miscalculated frolic in the wilds of approbation and reprobation.”
3. The learned trial Judge erred in law when he held as follows:
“This is a very simple, straightforward, non-complex and uncomplicated suit. However parties particularly the defence have given free reins to the script enacted by the three mythical blindmen of Hindostan calling the body of the elephant a wall after touching it. In a maniacal zeal enthusiasm the defence with the greatest respect, has expended much energy in arguing over the mass of an elephant as a wall and not a body” (Emphasis mine).
4. The learned trial Judge erred in law when he declared the Cross River State Urban Development Tax Law 2004 unconstitutional null and void and of no consequence whatsoever on the ground that it is inconsistent with the provisions of Cap T2
5. The learned trial Judge erred in law when he set aside the Assessment Notice for the payment of Urban Development Tax Tenement Rate, Refuse Collection Charge and Sanitation Levy served on the Plaintiff/Respondent by the 2nd Defendant/Appellant.
The learned Senior Counsel for the Appellants tried to justify that there was no multiplicity of issues from a ground of appeal. Learned Senior Counsel however made a concession that the issues as formulated can be accommodated in the lone issue formulated by the Respondent. The lone issue formulated by the Respondent will more than adequately address the complaints contained in the ground of appeal from which issues 1, 2, 3 were distilled.
In arguing the appeal, Chief Assam E. Assam, learned Senior Counsel for the appellants contended that the promulgation of the Urban Tax Law of Cross River State is an exercise which derives its full We from the constitution and is an essential law made in pursuance of the developmental necessities of the State for the welfare of its people and cited Sections 4(7) and 36 of the Constitution of the Federal Republic of Nigeria, 1999. He went on to argue that the House of Assembly of a State has power to make laws on any matter not included in either the exclusive legislative list or in the concurrent legislative list by virtue of Section 4(7)(a) & (c) He submitted quite forcefully that a State House of Assembly has power to impose any tax, levy, fee or duty or urban development tax on property which lies outside the heads of taxes mentioned in item 59 of the Exclusive Legislative list and paragraph 7 of item D of the concurrent list. He said that the steps taken by the Government and Legislature of Cross River State in the passing of the various revenue and developmental laws referred to above are steps in compliance with the constitutional responsibility of the State for the improvement and development of the environment. He said that the Taxes Levies (Approved List for Collection) Act Cap T2 otherwise known as Decree No. 21 of 1998 was passed when the powers of the States to legislate and impose tax under the Constitution had been suspended. There was therefore no intention to interfere with the powers of the States under the Constitution under a democratic setting. Prior to the promulgation of the Decree, it used to be a point of extreme annoyance to the citizenry at large that no one could travel from one State to another without being waylaid at each point by large armies of “Local Government” touts who collect or more appropriately extort all manner of “levies” with the help of uniformed men. It became necessary to streamline these activities and because of the confusion created by the suspension of the vital portions of the Constitution a new law was needed, hence CAP T2. In the view of learned Senior Counsel, the manifest aims of Taxes, Levies (Approved List of Collection) Act Cap T2 of 1998 would be the streamlining of the existing tax regime at the time, the prevention of illegal tax collectors who acted for their own pockets, the abolition of road blocks and the use of the armed forces. This was not meant to affect the balance of power to legislate by the States and the Federal Government in the imposition of taxes lawfully enacted.
The Respondent who appeared in person argued that the imposition of tax is a purely statutory matter and statutes which – impose taxes and penalties are interpreted strictly, citing OKUPE v. F.B.I.R. (1974) 4 SC 93 in support. He said the resolution of the issues at stake in this appeal would turn on the status of the statutes in contention vis-a-vis the 1999 Constitution of the Federal Republic of Nigeria. The said Constitution distributed taxing powers between the Federal and State Governments as evidenced in the Second Schedule to the Constitution item 59 in the Exclusive Legislative List and item D in the Concurrent Legislative List. He argued that just as the Constitution empowered the Federal Government to make taxing laws for the States, so also did paragraphs 9 and 10 of item D to the Second Schedule empower the States to make laws for the Local Governments for the collection of any tax, fee or rate, and such collections are not for the benefit of the States but for the Local Governments. He pointed out that Schedule 4 to the Constitution spells out the functions of Local Governments and specific areas where laws should be made for the Local Governments to collect taxes and levies and submitted that any law made by the State which purports to usurp the functions of the Local Government or transfer the power of collection of taxes, fees and rates provided in Schedule 4 will be inconsistent with the Constitution and thereby rendering itself void. It is the view of the Respondent that the true import of the Constitution is to completely take away the powers of legislation on taxation from the State except as provided in paragraphs 9 and 10 of item D to the Second Schedule and if any State feels strongly about the need to legislate on taxation it should make a case to the Joint Tax Board and such legislation will be made by the National Assembly for all the States of the Federation. He argued that it is obvious from Schedule 4 that collection of property tax is the Exclusive preserve of the Local Governments because of the onerous responsibilities imposed on that tier of government which include the establishment and maintenance of cemeteries, burial grounds, homes for destitutes, slaughter houses, markets, motor parks, public conveniences, sewage and refuse disposal; construction and maintenance of roads, street lighting, drains, parks, gardens, open spaces and many such facilities as may be prescribed from time to time by the State House of Assembly. He submitted that if the Constitution has given the function of assessing and collecting property tax to Local Governments, the State House of Assembly not validly make any law conferring the assessment and correction of the same tax to the State Government as was interpreted by the Supreme Court in the case of KNIGHT FRANK & RUTLEY NIGERIA v. A-G, KANO STATE (1998) 7 NWLR (R.56) 1 esp at 19 per Uwais CJN. He said the urban development tax as provided for in he Urban Development Tax Law is nothing but the usurpation of the function of the Local Governments to assess privately owned houses or tenements for the purpose of taxation as stated in Section 4 of that Law. The Law was not made by the State House of Assembly for the assessment and collection of the property tax by Local Governments but for the benefit of the Cross River State Government This is unconstitutional and urged this court to affirm the decision of the lower court in declaring it null and void as it is a usurpation of the functions exclusively reserved for the Local Governments by virtue of Section 7(5) of the Constitution.
The Respondent next addressed his mind to the Taxes and Levies (Approved List for Correction) Act, Cap T2 Laws of the Federation 2004 on which the decision in ETIOSA LOCAL GOVT COUNCIL v. JEGEDE (2007) 10 NWLR (Pt. 1043) 537 is based and reasoned that the Act was promulgated in order to bring to an end the debilitating monster of multiple taxation by different tiers of government. He argued that, the Urban Development Tax Law-fringed the Taxes and Levies (Approved List of Collection, Act which is deemed to have been made by the National Assembly and by virtue of Section 4(5) of the 1999 Constitution the Urban Development Law of Cross River State shall to the extent of the inconsistency with the Taxes and Levies (Approved List of Collection) Act be void since the Act must prevail. The following cases were cited support: A-G, ABIA STATE v. A-G. OF THE FEDERATION (2002) 6 NWLR (Pt.763) 264; A-G, ONDO STATE v. A-G. FEDERATION (2002) 9 NWLR (Pt.772) 222.
The preliminary objection raised by the Respondent regarding a ground of appeal accommodating more than one issue and the late transmission of the records by the Registrar of the court without the appellant taking steps to regularise the said records as required by Order 8 Rules 4 and 5 Court of Appeal Rules 2007 pales into insignificance when it is considered that the issue formulated by the Respondent was distilled from a valid ground of appeal and addresses the main issues in the appeal. The failure by the Appellant in not compiling the records and transmitting them to this court within 30 days after the expiration of the days allowed the Registrar of the lower court to compile the records cannot impinge on the validity of the records so compiled or the appeal itself. It would have had an effect if the respondent had taken steps to have the appeal struck out or dismissed for lack of diligent prosecution. See: Order 8 Rule 18 Court of Appeal Rules, 2007.
The starting point in the consideration of this appeal will be to set out the constitutional provisions relating to the issues arising in the appeal, the Taxes and Levies (Approved List for Collection) Act, Cap T2 Laws of the Federation and the Urban Development Tax Law Cap U3 Laws of the 1999 Constitution provides as follows:
“7-(1) The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, composition, finance and functions of such councils.
(3) It shall be the duty of a local government council within the State to participate in economic planning and development of the areas referred to in subsection (2) of this section and to this end an economic planning board shall be established by a Law enacted by the State House of Assembly.
(5) The functions to be conferred by Law upon local government councils shall include those set out in the fourth schedule to this Constitution.”
The Fourth Schedule to the Constitution spells out the functions of a local government council which includes:
(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 …”
The Taxes and Levies (Approved List for Collection) Act Cap T2 Laws of the Federation of Nigeria 2004 stipulate in Sections 1 and 2 as follows:
“1(1) Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979 as amended, or in any other enactment or law, the Federal Government, State Government and local government shall be responsible for collecting the taxes and levies listed in Part I, II and Part III of the Schedule to this Act, respectively.
(2) The Minister of Finance may, on the advice of the Joint Tax Board and by Order published in the Gazette, amend the Schedule to this Act.
2(1) Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979 as amended, or in any other enactment or law, no shall assess or collect, on behalf of the Government any tax or levy listed in the Schedule to this Act, and members of the Nigeria Police Force shall only be used in accordance with the provisions of the tax law.
2(2) No person, including a tax authority, shall mount a road block in any part of the Federation for the purpose of collecting any tax or levy.”
The Urban Development Tax Law Cap U3 Laws of Cross River State 2004 imposes tax on real property situate in the towns of the State specified in Schedule 1. Sections 2(1) and 8(a) state as follows:
2(1) The Commissioner shall undertake or cause to be undertaken an assessment of taxable property in such areas of the State as he may designate
8. The Commissioner may apply to Court to
(a) recover sums payable under the law …
The raging controversy in this appeal appears to me to be covered in the first issue formulated by the appellants namely:
Whether the Urban Development Tax Law of Cross River State was competently made to validate the taxes levied on the Respondent’s property under it.
In his brief, Chief Assam, learned Senior Counsel for the Appellant sought to justify the enactment of the law as premised on the scheme of development of Cross River State as a tourist donation of note in Nigeria; hence the passage by the Cross River State House of Assembly on 23rd January, 2001 of the Urban Development Authority Law. One of the functions to be exercised by the Urban Development Authority established under the Law is to provide various infrastructural services, amenities and recreational facilities in accordance with any existing master plan for the development of its area where none exists. He then argued that it is in furtherance of the objects of the Urban Development Authority that the Urban Development Tax Law was passed for the purpose of raising revenue to aid it in its urban and environmental improvement drive for the better development of the State. For the respondent the enactment of the Urban Development Tax Law is nothing but a usurpation of the function of the Local Governments to assess privately owned houses or tenements for the purpose of taxation.
The constitutionality or otherwise of the Urban Development Tax Law should not be hinged on the Taxes and Levies (Approved List of Collection) Act Cap T2 Laws of the Federation of Nigeria 2004. That Act was made during the period of Military inter regnum when the 1979 Constitution was suspended and only such amendments that were introduced by the Military was the groundnorm. However since the Act was not repealed after the coming into existence of the 1999 Constitution it became an existing Law which was deemed to have been made by the National Assembly. Unlike the time it was first promulgated in 1998 when the Military held sway and Decrees took precedence over the unsuspended sections of the 1979 Constitution, with the coming into being of the 1999 Constitution, any existing Acts of the National Assembly would be valid subject to their being consistent, with the Constitution.

While I am in agreement with Chief Assam, SAN that the promulgation of the Urban Tax Law of Cross River State is an exercise which derives its full life from the Constitution, nonetheless the provisions of the law should not conflict with the Constitution. A close look at the Urban Development Law shows that it show that it is the function assigned to the Local Government Council in paragraph 1(j) of the Fourth Schedule to the Constitution that is being usurped by the State Government which deals the assessment of privately owned houses or tenements for the purpose of levying the rates and the collection of same by the Commissioner of Finance in order to carry out the functions entrusted to the Urban Development Authority. In KNIGHT FRANK v. RUTLEY (Nig) v. A-G, KANO STATE (1998) 7 NWLR (Pt.556) 1, the Supreme Court had to consider whether the Kano State Government was competent to enter into contract for valuation and collection of tenement rates. The court held by a majority of 4-1 that by virtue of Section 7(5) of the Constitution of the Federal Republic of Nigeria 1979 the functions which can be conferred by law on Local Government Councils are intended by the Constitution to include the function set out in the 4th Schedule to the Constitution. Paragraph 1(b) and (j) of the 4th Schedule states that the main functions of a Local Government Council are collection of rates, radio and television, 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 from the foregoing the collection of rates on rateable hereditaments and the assessment of rates on privately owned houses are subjects within the responsibilities of Local Government Councils. In the lead judgment delivered by Uwais CJN he held at page 18 as follows:
“It is clear from the foregoing that the collection of rates on rateable hereditaments and the assessment of rates on privately owned houses are subjects within the responsibilities of Local Government Councils.”
Ogwuegbu JSC in his contribution agreeing with the lead judgment held that even though a State Government has the power under Section 7(1) and (2) of the Constitution to establish and define the areas of local government councils and to ensure their existence under the law establishing it, it has no power to enter into contract with the appellants over a subject-matter within the competence of the local government councils. He held the view at page 27 that
“There is everything wrong in the State Government entering into the contract with the appellants. Given the circumstances of this case, I would say that the Kano State Government was meddling in the affairs of the Local Government Councils… I must here emphasise that Local Governemnt Councils should be spared this type of illegitimate intrusion or interference by State Government in functions specifically assigned to the former by the Constitution.”
Ogundare JSC, who dissented was ready to go along with the majority judgment when he stated at page 34 that,
“What I believe the State Government cannot do is, to, itself, assess and collect rates.”
By vesting the power to undertake or cause to be undertaken an assessment of taxable property and the recovering of such property tax by the Commissioner responsible for Finance, the Cross River State Government had indeed done what Ogundare JSC said it could not do. The effect of this law if it is allowed to stand would be render the Local Governments of the five towns listed in the Schedule (i.e. Calaba, Ikom, Ogoja, Obudu and Ugep) financially impotent; hence they will be unable to discharge the functions that have been assigned to them by the Constitution. Although slight changes have been made in the 1999 Constitution, this has not materially altered the scope within which the State House of Assembly may go in its duty of making laws affecting the Local Government Councils. I am in total agreement with the Respondent when he submitted in his brief that property tax is fitting to be collected by the Local Governments because of the onerous responsibilities imposed on the said tier of Government by the Constitution. The promotion of tourism which could be said to be the raison d’etre for the enactment of the Urban Development Authority Law could conveniently have been added to the functions to be performed by the Local Governments. In the alternative the State should look for other sources of revenue not meant for the Local Governments to enable it realize the objectives of the Urban Development Authority Law. If the Local Governments are to successfully discharge their responsibility such as the construction and maintenance of roads, street lighting, drains, parks, gardens and open spaces which are necessary for tourism to thrive, the power to generate funds from privately owned houses must not be taken away from them. An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it. See Section 10(2) Interpretation Act, A-G ONDO v A-G OF FEDERATION (2002) 9 NWLR (Pt. 772) 222. If the Constitution has given the function of assessing and collecting property tax to Local Governments the State House of Assembly cannot validly make any law conferring the assessment and collection of that same tax to the State Government or any agency of the State Government. Uwais CJN, put it succinctly thus in KNIGHT FRANK & RUTLEY (NIG) v. A-G, KANO STATE supra at 19:
“It is clear from the Provisions of Paragraph 1(b) and (i) of the Fourth Schedule read together with the provision of Section 7(5) of the Constitution that the intendment of the constitution is that only Local Government Councils have the power to assess and impose rates on privately owned property.”
This being the case the Urban Development Tax Law Cap U3 Laws of Cross River State 2004 is inconsistent with Sections 4(7) 7(5) of the 1999 Constitution read along with paragraph D 10 of the Second Schedule and paragraph 1(b) & (j) of the Fourth Schedule to the 1999 Constitution. The State House of Assembly cannot lawfully legislate and deprive any Local Government Council the function assigned to it under the Constitution by excising certain towns in the State and giving the power to assess and collect rates on privately owned houses to the State Government for the purpose of promoting tourism in the State.
I declare Sections 2 and 8 of the Urban Development Tax Law Cap U3 Laws of Cross River State 2004 as being inconsistent with Section 7(5) of 1999 Constitution read along with paragraph 1(b) & (j) of the 4th Schedule to the 1999 Constitution and to that extent they are unconstitutional, null and void.
I find that the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court in Suit No. HJ/42/2007 delivered by Michael Edem J. on 4/8/2008 is hereby affirmed. I make no order as to costs.

NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead Judgment just delivered by my Learned Brother Akaahs, JCA.
The reasoning is exhaustive and the conclusion appropriate. The power of the Cross River State Government to make the State Urban Development Tax Law 2004 is derived from the Constitution but if the Law or any provision thereof is inconsistent with the Constitution, it is null and void to the extent of the inconsistency.
I adopt the declaration that sections 2 and 8 of the Urban Development Tax Law Cap 113 Laws of Cross River State 2004 are inconsistent with S.7(5) of the 1999 Constitution and paragraphs 1 (B) and (J) of the 4th Schedule to the 1999 Constitution and therefore null and void to the extent that they are so inconsistent.
I also dismiss the appeal as lacking in merit. I make no order for costs.

PROCLAMATION OF JUDGMENT OF HON. JUSTICE JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this appeal and agreed in conference that the appeal should be dismissed. Pursuant to the proviso to Section 294 (2) of the 1999 Constitution I hereby pronounce his opinion dismissing the appeal.

Appearances

Chief Assam E. Assam, SAN, with him I. Ikona, DCL, CRS, William Anwan, Chief E. Usenekong, Rekana Isong, Nneka Agu and Adora Okoli (Miss) For Appellant

AND

Respondent appears in person. For Respondent