The Nation Newspaper

Tag: illegality

  • Illegality of customary practices in Nigeria

    “As legal practitioners, you cannot close your eyes to the social, political and economic problems of our time. Therefore, you have a duty to help rescue our society from pervasive lawlessness, corruption and anti-social activities.”— Hon. Justice Walter Onnoghen.

     

    Lawyers and budding legal practitioners that shy away from condemning cultural practices that infringe on the rights of people in the society have not only betrayed their callings as legal practitioners, they may have lost value of their existence as humans.

    Hence, it would not be out of place for budding legal practitioners like myself to criticise anachronistic customary practices in our society. The Chief Justice of Nigeria, Justice Walter Onoghen, in his speech at the recent call-to-bar ceremony, uttered the statement quoted above to serve as a reminder to lawyers that may want to buckle in the face of brazen threats to human rights.

    It should be noted that customary practices like Oro and Agemo, which are Yoruba’s occultic rallies, as done in some communities in the Southwest are not only offensive to constitutional rights for free movement, they are also incompatible with the principle of natural justice and public order.

    Let it be known that these customary practices are alien in the modern societies where jurisprudence and human rights hold sway. Though, Section 315 (3), (4)(b) and (c) and Section 265 and 280 give special attention to customary law and makes provision for the establishment of the Customary Court of Appeal for each state of the federation.

    It is important to note that, in law, it is settled that for a customary law to be deemed valid, it must pass through some validity tests, which customary practices like Oro and Agemo have failed. Hence, they cannot be rendered to be valid.

    The court has held in the celebrated case of Agbai V. Okagbue(1991) 7 NWLR Pt 512, p. 283 CA that the importance of these validity tests is to fine-tune customs so they might maintain relevance in our legal system. Section 315 of the 1999 Constitution (as amended) is the basis of these tests.

    The repugnancy test is the first test of validity. This test requires that any custom or customary law must not be repugnant to natural justice, equity and good conscience.

    Natural justice is obviously a test of fairness and fair hearing of a custom. This is upheld by the grundnorm where Section 36 of the 1999 Constitution (as amended) guarantees the fundamental right to fair hearing.

    In the popular case of Guri V. Hadejia Native Authority(1969) 4 FSC 44, it was exclusively held by the court that such Malik custom preventing fear hearing of a suspect accused of high way robbery was not fit to be classified as customary law as it was against natural justice.

    It would be of benefit to note that natural justice upholds two key principles: audi alteram partem, which guarantees fair hearing, and nemo judex in casua sua, which also prevents one from being the judge in a case of interest to him. Another one is the landmark decision in the celebrated case of Garb & Ors. V. University of Maiduguri (1986) 1 NWLR pt 18, p. 550 SC.

    Hence, for traditional rulers to display fascist tendencies by decreeing that punishments will be meted out to those that have refused to follow their anachronistic, draconic and illegal orders is everything but an insult to our sacred laws. This must be pointed out.

    In the same vein, customary laws must not be against equity and good conscience. Equity in its totality is fairness, rightness, and justice. Any custom must have the nature of equity while it must be born of good conscience, purpose and reason. See Inasa V. Oshodi.

    Another test is the incompatibility test. This test requires that any rule of customary law must not be incompatible with any existing provisions of the constitution nor any existing statute for the time being in force in such a community in Nigeria. See Re Effiong Okon Ata (1930) 10 NLR 65, where the court held that the right to administer with the property of a slave was now incompatible with the Slavery Abolition Ordinance No. 35 of 1916.

    Pursuant to the precedents quoted above, it is crystal clear that the traditional worshippers have goofed. What a big time goof! It is a common knowledge that during these Oro and Agemo festivals, the fundamentally guaranteed rights and freedom of the inhabitants in the communities, as enshrined in Section 41 of the 1999 Constitution, are always restricted.

    It should be a point of note that during Oro and Agemo festivals, women are mostly restricted to their homes as they are not allowed to move freely. This is not only an aberration of their rights to freedom of movement, but also a gross infringement of their right to freedom from discrimination as provided in Section 42 of the 1999 Constitution and several international covenants and protocols, such as Covenant on the Eradication of Discrimination Against Women (CEDAW), though not yet domesticated in our jurisdiction. Notwithstanding, the proviso of the grundnorm still hold sway.

    No doubt, this prompted the decision of the court in Mojekwu V. Mojekwu(1997) 7 NWLR Pt 512, p. 283 CA where a customary law discriminatory against female children was held to be against Section 42 of the 1999 Constitution and not enforceable.

    Lastly, as a matter of necessity, customs or customary law must pass the public policy test. Public policy principally centers on the security and welfare of the people which is the primary purpose of the government as provided in Section 14(2)(b) of the 1999 Constitution. This formed the line of decision in Okonkwo V. Okagbue (1994) 9 NWLR Pt 368, p. 301.

    In the final analysis, to predicate on the above expostulations of the law, it can be deduced that customary practices like Oro and Agemo as done in some Yoruba communities are not only repugnant to

    natural justice, equity and good conscience, but also contravene the provisions of our laws and public policy. Hence, they should be jettisoned.

    Anyone who disagrees with the already established arguments would be deliberately violating the already established facts, empirical precedents and statutes.

    These customary practices are not only illegal but an affront to justice. Can the traditional rulers claim to be oblivious of the law? Are they above the law? In Nigeria, can we for once be lawful and respect people’s right to movement?

    • ‘Yinka, 300-Level Law, OOU
  • Illegality of houses demolition in Lagos

    Illegality of houses demolition in Lagos

    In this article, a Senior Advocate of Nigeria (SAN), Femi Falana, lists the processes that must be followed by the government before embarking on demolition of houses.  

    Sometime in 1989, about 300,000 people were rendered homeless in Maroko, a shanty town on Victoria Island in Lagos State when their houses were demolished by the defunct military junta.  All efforts by the displaced people of Maroko to halt the demolition failed on the ground that a breach of the fundamental right to property could not be enforced under the Fundamental Rights Enforcement Procedure Rules, 1979.  Upon the appropriation of Maroko, it was sand-filled with public funds and distributed by the government to some top civil servants, military officers and business elite. Even though the Court of Appeal later held that the refusal of the High Court to grant the relief sought by the displaced community was wrong, the ruling military junta arrogantly named one of the streets after the judge who refused the injunction!

    However, following the destruction of their homes by the Lagos State government, the Maroko people took over the uncompleted Abesan Estate. To prevent the government from ejecting them forcefully from the estate, we approached the Lagos High Court for legal protection. In stiff opposition to the suit the government contended that since the occupants of the estate were squatters, they could be ejected forcefully. In rejecting the spurious contention, the presiding judge, Alabi J. (as he then was) ruled that the occupiers of the estate were entitled to be served a seven-day quit notice and be sued if they refused to quit the premises.

    Notwithstanding the clear provisions of the law enunciated by the Lagos High Court in Samuel Ayeyemi’s case, the Lagos State government has continued to embark on mass demolition of houses occupied by the poor in the state. It is our submission that all the demolition exercises carried out so far are illegal as they violate Section 36(4) of the Constitution which stipulates that in the determination of their rights and obligations, every citizen shall be entitled to make a representation to the authority. It is pertinent to note that the right of owners or occupiers of houses to make representation to the government before any demolition exercise is carried out is enshrined in the Lagos State Urban and Regional Planning and Development Law Cap U2 Laws of Lagos state 2015 (herein referred to as the URPD Law).

    Thus, by virtue of Section 49 of the URPD Law, there shall be a renewal agency which shall be saddled with the responsibility to issue enforcement notices, including the following: Contravention Notice; Stop Work Order; Quit Notice; Seal-up Notice;  Regularisation Notice; and Demolition Notice.

    Before enforcing the order contained in any of the aforesaid notices,  a committee of members of the renewal agency shall be set up to hear, consider and report on any representation or objection which may be made orally or in writing by the owner or occupier of any building on which a notice has been pasted. It is further provided that before a demolition order is made in respect of any building or a part of it, estimates of the compensation payable to the owner or occupier shall be determined and made available.

    If the agency dismisses the objection and confirms the demolition order, the aggrieved owner or occupier has the right to appeal against the decision to the Physical Planning and Building Control Agency Appeals Committee. Furthermore, an aggrieved person or any interested party may appeal against the decision of the Appeals Committee and such appeal shall lie as of right to the High Court of the State. The appeal to the high court must be made within twenty-eight (28) days after written notification of the final decision of the Appeals Committee.

    It is clear from the foregoing that it is after the complaint of the aggrieved person has been dismissed by the High Court that any demolition can be carried out in Lagos State. However, a building cannot be demolished in any part of the state without a valid court order, unless it has been established that it is structurally defective or found to constitute environmental hazard.  Therefore, the practice of demolishing houses after the expiration of a 48-hour notice is illegal in every material particular.  In a judgment delivered by the Federal Capital Territory High court on February 2, 2017, in Chief Jacob Obor & Ors v Federal Capital Territory & Ors (unreported suit no  CV/3998/12) Kutigi J. declared the planned demolition of all the houses in Mpape illegal on the ground that the notices purportedly served on the plaintiffs did not meet  statutory requirement.

    Indeed, the illegality of the demolition of houses in Lagos State is compounded by the refusal of the Ministry of Physical Planning to hear and determine the objections and complaints of owners of buildings which are marked for demolition. In other words, the action of the government constitutes a reckless violation of the provisions of sections 57-89 of the Law. It is also a breach of section of 36 (4) of the Constitution which guarantees the fundamental right of every citizen to make a representation before any matter affecting their civil rights and obligations is determined.

    In SERAP v. Federal Republic of Nigeria (2002) 2 CHR 537 at 562 the African Commission on Human and People’ Rights condemned the demolition of a number of houses in Ogoniland. While upholding the human right of the owners of the demolished houses to shelter the Commission said:

    “At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs.”

    To check the menace of land grabbers and prevent a breakdown of law and order, the Lagos state government has enacted the …….Law, 2016, which has criminalised the seizure of land and houses without a valid court order. Thus, by forcefully taking over houses before demolishing them, the Lagos state government has violated its own law. The duty of the government to prevent the use of force was emphasised in the case of Attorney-General of Lagos v. Attorney-General of the Federation (2004) 18 NWLR (PT 904) 1 at 53 by the late Justice Niki Tobi when he said:

    “The courts are available to accommodate all sorts of grievances that are justiciable in law and section 6 of the Constitution gives the courts power to adjudicate on masters between two or more competing parties. In our democracy all the governments of this country as well as organizations and individuals must kowtow to the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance.”

    It has been confirmed that some of the demolitions were carried out while cases challenging the validity of demolition notices were being challenged in the Lagos High Court. Even under a military dictatorship the government  was called to order in the case of The military governor of Lagos State v Chief Emeka Ojukwu (1986) 4 NWLR (PT 18) 621 when the Supreme Court said:

    “In the area where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world, even in the third world which proclaims to operate under the rule of law, there is no room for rule of self-help by force to operate… the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive.”

    In the light of the foregoing, it is submitted that the demolition of houses carried out by the Lagos State Government without a court order is illegal and unconstitutional. If the victims seek legal redress, the government is liable to pay special, general and aggravated damages. Perhaps the attention of the government ought to be drawn to the damages of N166 billion awarded by the Federal High Court against the Federal Government in three separate judgments over the wilful destruction and demolition of houses during the military invasions of Odi, Zaki Biam and Gbaramatu.

  • Illegality of Fayose’s flat tax directive

    Illegality of Fayose’s flat tax directive

    The print media was awash on Tuesday, September 1, 2015 with reports of Gov. Ayo Fayose’s threat that no private school in Ekiti State will be allowed to commence school activities this Session unless it pays a tax of N150,000 and that anybody who buys one cow to be slaughtered for any ceremony will pay N1,000. It was further reported that the Governor vowed to shut four banks for ‘tax evasion’. Of all these issues, I intend to anatomise the issue of payment of N150,000 by each private school before the school will be allowed to re-open.

    For private schools with large population of employees, payment of N150,000 may even be a blessing in disguise, especially if the monthly personal income tax remittance is above the N150,000 mark. The opposite will, however, be the lot of small and medium schools with low staff population. Each of such schools is now being compelled to cough out N150,000 without regard to what the actual remittance should be or ought to be. The implication of the Governor’s Proclamation is that a private school with, for example, 10 members of staff, at salaries varying from N10,000 to N50,000 must pay the same N150,000 in the manner of another school with 30 members of staff with salaries ranging from N15,000 to N80,000.

    Flat tax has been defined by Tejutax at page 794 of her book, Tejutax Reference Book, Vol. 1, as a tax applied at the same rate to all levels of income. Flat tax means that everyone has to pay tax at just one and only one rate. In such a system, in place of a complex set of income tax brackets, a State declares a threshold above which all parties pay a fixed rate on all their income.

    As at today, the Federal Government of Nigeria and its federating States apply the progressive system of taxation and not the flat tax system. This is why the system is classified as Pay-As-You-Earn (P.A.Y.E.). Paragraph 7 of Part II of the Second Schedule to the 1999 Constitution provides that:

    In the exercise of its powers to impose any tax or duty on – (a) capital gains, incomes or profits of persons other than companies; and  (b) documents or transactions by way of stamp duties the National Assembly may, subject to such conditions as it may prescribe, provide that the collection of any such tax or duty or the administration of the law imposing it shall be carried out by the Government of a State or other authority of a state.

    It was pursuant to this provision that the National Assembly made the Personal Income Tax (Amendment) Act, 2011 whose principal Act is the Personal Income Tax Act, Cap. P8, Laws of the Federation of Nigeria, 2004 (otherwise called “PITA”). PITA was actually enacted in 1993 and it is an existing law pursuant to Section 315(1)(a) of the 1999 Constitution.

    Of equal relevance is Paragraph 8 of Part II of the Second Schedule to the 1999 Constitution, which provides that:

    Where an Act of the National Assembly provides for the collection of tax or duty on capital gains, incomes or profits or the administration of any law by an authority of a state in accordance with paragraph 7 hereof, it shall regulate the liability of persons to such tax or duty in such manner as to ensure that such tax or duty is not levied on the same person by more than one state.

    This provision makes it clear that the Act made by the National Assembly shall regulate the liability of the residents of a state to such tax in such a manner as to ensure that such tax is not levied on the same person by more than one state. This provision is intended to prevent multiplicity of taxes but much more than that.

    Item 59, Part 1, Second Schedule to the 1999 Constitution, (which contains the Exclusive Legislative List) gives the National Assembly exclusive powers to legislate on taxation of incomes, profits and capital gains except as otherwise prescribed by this Constitution. The purport of these constitutional provisions is that the states are to enforce laws made by the National Assembly in relation to taxation of incomes, profits and capital gains.

    A state is required to impose tax or levy with respect to any of the 25 taxes and levies contained in the Taxes and Levies (Approved List for Collection) Act (Amendment Order), 2015.

    With respect to these 25 taxes and levies, Fayose’s proclamation is only related to income tax. Yours sincerely has shown that income tax cannot be charged arbitrarily; it can only be charged according to the relevant Act. I know as a fact that there is no law in Ekiti State, which makes it compulsory for each private school to pay N150,000 before resumption in a new session. Even if there is such a law, it will be unconstitutional because Section 1(3) of the 1999 Constitution provides that:

    If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

    Taxes and levies cannot be charged by a rule of the thumb or by a Governor’s proclamation. There are guiding principles to taxation, which the State Governors and the Federal Government must imbibe if we want to have an equitable tax system. Let us consider the words of wisdom in the cases below:

    “It is the law that the language of a statute imposing a tax, duty or charge must receive a strict construction in the sense that there is no room for any intendment and regard must be had to the clear meaning of the words. If the state claims a tax under a statute it must show that the tax is imposed by clear and unambiguous words, and where the statute is in doubt it must be construed in favour of the subject, however much within the spirit of the law the case might otherwise be, but a fair and reasonable construction must be given to the language used without leaning to one side or the order” statement of law by Lord Atkinson in Ordmond Investment Co. v. Betts [1928] AC 143 at 162, adopted: per Ikpeazu J. in Aderawos Trading Co. Ltd. v. F.B.I.R. [1966] L.L.R. 196 at 200.”

    “It is a general principle of fiscal legislation that to be liable to tax the subject must fall clearly within the words of the charge imposing the tax, otherwise he goes free. It is also for the State to establish that the charge prima facie extends to the subject matter sought to be charged: per Lord Halsbury L.C. in Tennant v. Smith (Surveyor of Taxes) [1892] A.C. 150 at 154, HL.”

    A good tax system, therefore, should be part of the so-called democracy dividends. Ade Ipaye has outlined the essentials of a good tax system, in his book, Nigerian Tax, Law & Administration: A Critical Review, to include equity, certainty, convenience and administrative efficiency. Certainly, Gov. Fayose’s imposition of a new tax regime specifically for some citizens is not only discriminatory but uncertain.

    According to the National Tax Policy, governors are expected to play a similar role to that of the Presidency at state level. They would be responsible for the development of state Tax Policy which shall be complementary to the National Tax Policy. In addition, they are responsible for the enforcement of Federal and State tax laws in the States and carry out general oversight functions on tax and revenue authorities at the State and Local Government level. State Governors would be required to provide guidance and direction to the State Ministries of Finance, the State Boards of Internal Revenue Service and other relevant revenue generating agencies involved in tax administration in the States. They should also ensure adequate funding and autonomy is provided to these agencies in the discharge of their functions.

    State Governors, as stakeholders in the Tax System, have roles and responsibilities, among which are: (a) adherence to Constitutional Federalism and the Rule of Law at all times; (b) strict adherence to Constitutional provisions relating to fiscal matters; (c) strict adherence to the provisions to tax legislation in the administration of taxes; (d) commitment to the enforcement of tax laws in a legal Constitutional manner; (e) commitment to the creation and sustainable development of a stable, secure and workable tax system for Nigeria.

    The intendment of this piece is, therefore, not to encourage tax evasion or to avoid tax remittance, but to discourage State Governors from making tax laws – whether discriminatory or not – by executive fiat. This is my little contribution to tax law jurisprudence and I hope it will be useful to not only Ekiti people but to Nigerians as a whole.

     

     

     

     

     

  • Babatope gets knocks for backing illegality

    Babatope gets knocks for backing illegality

    •Ekiti 19 condemns comment

    The 19 All Progressives Congress (APC) members in the Ekiti State House of Assembly have criticised a member of the Peoples Democratic Party (PDP) Board of Trustees, Chief Ebenezer Babatope, for calling them charlatans.

    They slammed the exTransport and Aviation minister for backing the impeachment of Ondo State Deputy Governor Ali Olanusi and opposing the impeachment proceedings against Governor Ayo Fayose.

    The lawmakers’ comments followed Babatope’s interview in a national newspaper yesterday.

    They said a senior party leader should not be speaking from both sides of the mouth in his analysis of political events in Ekiti.

    In a statement yesterday by Special Adviser (Media) to Speaker Adewale Omirin, Wole Olujobi, the lawmakers advised Babatope to take a break after the defeat his party.

    Slamming the PDP leader for calling them charlatans, the lawmakers said it was regrettable that Babatope could succumb to partisan emotions while his country crumbled under the weight of illegal acts of brigands.

    The statement said: “A question mark is being put on Babatope’s integrity.  As a leader, he supported the impeachment in Ondo but he is now calling Ekiti lawmakers names for questioning Fayose.

    “Babatope’s past role in Ekiti is still fresh in our memory, as he was alleged to have participated in the supervision of thugs to unleash mayhem on our members.

    “We want to ask Babatope where was his integrity and clarity of thought when he kept quiet when Govenor Ayo Fayose invaded the court and beat up a judge.

    “What did he say when Fayose froze the Assembly’s accounts, seized the Speaker’s vehicle, cut electricity supply to his house, locked him out of his house and office and seized his official car?

    “ What did Babatope say when Fayose suborned seven PDP members to illegally pass the budget, approve commissioners and special advisers, revoke the Local Government Law, State Transport Management Agency and Social Security Scheme laws without recourse to the Assembly through revocation bills?

    “It is quite unfortunate that a supposed progressive elder statesman in the twilight of his political career threw away all he attained as a progressive and is frolicking with wolves.”