DR. ‘KEMI PINHEIRO, SAN, FCI, Arb
1.0. INTRODUCTION:
1.01 I have decided to write this article as a rejoinder to the statements of my seasoned brother Silk, Mr. Femi Falana, SAN and my learned friend, Mr. Jiti Ogunye, esq., both of which statements were caused to be published on the 4th day of September, 2022 in respect of the Lagos State Setback Parking Levy.
1.02 The commentary is necessary for the purpose of demonstrating the legitimacy of the recent action of the Lagos State Parking Authority any the constituionality of its enabling law.
1.03 The universal phenomenon for the control and regulation of public highways, street parking lots, motor parks, private commercial parks and setbacks to be placed in the firm control of the government, has never been confronted with any legal resistance. The raging controversy has however been whether this regulation should be the responsibility of concerned local governments or the state government.
1.04 Recently in Lagos State, a Notice dated August 15, 2022was served on Nellies Nigeria located at 95, plot 6, Omorinre Johnson Street, Lekki Phase 1, Lagos State, by the Lagos State Parking Authority (LASPA), billing it N290,000.00 and the N50,000 processing fee,for three (3)parking slotscreated on a setback to its business premise.The said notice found its way through media circulationand has not only been in the eye of the storm but has also brought to the fore the question as to the competent governmental authority that is empowered to impose levies on parking lots, parking on setbacks and other ancillary matters thereto. An excerpt culled from the issued notice reads thus:
“…The Lagos State Parking Authority, established under the law to consolidate all that relating to parking and its connected purposes with powers and functions, clearly states that the Authority shall, among others, be responsible for all forms of managed parking in the State…
In line with the administration’s policy in moving Lagos State towards a 21st-century economy to align with the first pillar of THEMES’ Agenda of which transportation is key, your organisation is hereby served this demand notice for the setback parking (off-street) in front of your premises before the commencement of enforcement action…”
1.05 Then comes the legal outrage; one screaming the legal vice of ‘double taxation’ and the other impugning the executive action of the State from its inplanted roots: the legitimacy of the empowering law. The crux of this article is to explore the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and other relevant state laws or other subsidiary legislations, with a viewtolending credence to the legitimacy of the executive action of the LASPA vis-à-vis the law(s). We will not carry out this exercise in a hurry.
2.0. LOCAL GOVERNMENTS AND THE PARKING SYSTEM IN NIGERIA
2.01 The local government system was created to catalyze balanced development, provide a broader platform for citizens’ participation in local governance and induce greater government response to local problems.
2.02 Ideally, it serves as the political and administrative structure that facilitates decentralization, national integration, efficiency in resource allocation and mobilization for grassroots development. The 1979 Constitution, and subsequently the 1999 Constitution (as amended), devolved more statutory functions and provided specific sources of revenue to the local government.
2.03 According to the 1999 Constitution, the Local Government Councils have the constitutional obligation to perform all the exclusive duties and responsibilities outlined in its Fourth Schedule.
2.04 Pursuant to the provisions of Section 7(1) of the 1999 Constitution which stipulates that every State shall enact a law providing for the establishment, structure, composition, finance and function of local government councils, the Lagos State House of Assembly enacted the Local Government (Administration) Law Cap. L73, Volume 5, Laws of Lagos State, 2003 and the Local Government (Administration) Law No. 3 of 2006. Section 36(e) of the Local Government (Administration) Law (as amended) reproduced the provisions of the Fourth Schedule, which provides for a Local Government Council to establish, maintain and regulate slaughter slabs, markets, motor parks and public conveniences.
2.05 The Lagos State Parking Authority (LASPA) was established under the Lagos State Transport Reform Law, a Law of the State House of Assembly, to regulate and manage all forms of parking activities within the State by redesigning and restructuring the current parking culture and implementing state-wide parking policies which will address the peculiarities of the State, while also adhering to International Parking Standards.
2.06 In the same vein, the Lagos State Physical Planning Permit Regulations, 2019(“the Regulations”), enacted under the Lagos State Urban and Regional Planning and Development Law, Cap U2, Laws of Lagos State 2015, provides for parking requirements and setback parking.
2.07 The syllogism to be drawn from the above is, firstly: that the 1999 Constitution of the Federal Republic of Nigeria as well as the Local Government (Administration) Law fully clothes Local Governmental Councils with the power to regulate parks, parking, highways and setback parkingin Nigeria, and secondly: that the Lagos State Transport Reform Law establishes LASPA to regulate all forms of parking activities in Lagos State.When the Court of Appeal was faced with the issue as towhether a local government has the power to regulate private parking lots in the case of AIRTEL NETWORKS LTD v. A-G LAGOS STATE & ORS (2017) LPELR-45045(CA), the Court, Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 10 – 18 Paras E – B), held as follows:
“This matter falls within very narrow confines. The Appellant has not questioned the authority of the 3rd Respondent to make bye-laws. The contention of the Appellant is that the 3rd Respondent does not have the vires to make a bye-law to provide for parking fees in respect of motor parks and parking lots since the constitutional provisions on avenues for generation of revenue for a local government are with regard to licenses and levies in respect of bicycle, trucks, canoes, wheel barrows, carts, privately owned house or tenements, restaurant, bakeries, and other places where food is sold to the public. The further postulation of the Appellant is that the function of a local government as it relates to motor parks is only in respect of public motor parks and that it does not extend to private parking lots, such as that which the Appellant has. Undoubtedly, the Eti-Osa Local Government Parking and Control of Traffic Bye-Laws (No. 7) of 2002 makes provisions making it an offence to park at a place other than an approved car park, for the issuance of permits on private parking development and it further defines an ‘approved car park’ to include private parking lots. Banana Island, Ikoyi, where the Appellant’s parking lot for its staff and customers is located is within the territorial jurisdiction of Eti-Osa Local Government, so the Bye-Law applies to the said area. The Appellant’s grounds of challenge to the Bye-Law which I have stated above proceeds on the premise that the functions of a local government as stated in the Fourth Schedule to the Constitution are exhaustive, and that a local government cannot have any other function other than as stipulated in the said Fourth Schedule… By Section 7(5) of the Constitution, the function of a local government are set out in the Fourth Schedule. Paragraph 1(e) of the Fourth Schedule provides for the establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public conveniences. It is this provision that is at the very root of the disceptation in this matter. The Appellant relying on the ejusdem generis rule of interpretation contends that by the genus of the other words used in the provision as public places, motor park can only be a public motor park and not a private parking lot. The words employed in Section 7(5) of the Constitution are that the functions conferred upon a local government council “SHALL INCLUDE”…. There is nothing in the said provisions preventing a State or local government from making laws in respect of functions to be carried out by a local government council. The validity of such a function can only be determined relative to the provision of Section 1(3) of the Constitution which makes the provisions of the Constitution supreme and renders void the provision in any other law which is inconsistent with the provisions of the Constitution…It is translucent that the words ‘shall include’ having been employed in Section 7(5) of the Constitution in reference to the functions of a local government, which are to be set out in a law made pursuant to Section 7(1) of the Constitution, is indicative that the functions set out in the Fourth Schedule of the Constitution do not exhaust the functions a local government can perform. This is the necessary implication of the use of the term ‘shall include’, which is descriptive of the intention that the functions of a local government can by legislation be enlarged beyond what is provided for in the Fourth Schedule. See NWOBOSI vs. ACB LTD (1995) LPELR (2121) 1 at 43, RABIU vs. KANO STATE (1980) LPELR (2936) 1 at 32, ARTRA IND. LTD vs. N. B. C. I. (1997) 1 NWLR (PT. 483) 574 at 59 and OKESUJI vs. LAWAL (1991) 2 SCNJ 1 or (1991) 1 NWLR (PT. 170) 661. Ergo, I am unable to agree with the Appellant that the 3rd Respondent does not have the power to impose fees for parking permit in respect of private parking lots… Since the functions in the Fourth Schedule are not exhaustive and can be enlarged…”
2.08 In response to the recent setback parking levy controversy, some eminent legal protagonists have insisted that the state government’s move to begin the collection of setback parking fees is unconstitutional, citing the case Knight Frank & Rutley Nigeria Limited V. Attorney General of Kano State (1998) 7 NWLR (PT 556) 1 at 24 where Kutigi JSC (as he then was) stated as follows:
“The Court of Appeal must therefore in my view be right, when it opined thus:
Could the powers of the State and Local Government Councils to order for valuation of rateable hereditaments co-exist and be complimentary? I believe that once the State passes a legislation assigning the functions of valuation of tenement rates to the Local Government as the Constitution has directed, only the Local Government Council will have the power to deal with that subject. The State has no power to deal with the matter and the Local Government Council cannot, even if it wants to, divest itself of those powers”
2.09 We beg to differ on the alleged unconstitutionality of the State Government’s recent action; and we shall demonstrate our position anon. In so doing, we will distinguish the case of Knight Frank &Rutley Nigeria Limited V. Attorney General of Kano State (supra) along the line of the differentials between ‘divestment’, as alluded to above, and ‘delegation’.
2.10 Meanwhile, the Lagos State Government attempted to justify the power of the Lagos State Parking Authority to collect parking levy in respect of parking spaces in Lagos State. The office of the Honourable Attorney-General and Commissioner for Justice, Lagos Statemaintains that the Lagos State Parking Authority Law“empowers the Local Governments and Local Council Development Areas in Lagos State to assign their power in respect of collection of fees to the State Government.”In this wise, reference is made to the case of Ola AnimashaunHarimotOluwabukola v. Attorney-General of Lagos State & 5 Ors in Appeal No. CA/L/1046,delivered on the 19th day of November, 2018, where it was held by the Court of Appeal that the intendment of Section 1(3) of the Land Use Charge Law of Lagos State is “to give powers to the Local Government to permit a contractual relationship between it and the State on collection of taxes.”
2.11 Granted, the powers of the local government to regulate the parks and setback parking and impose levies is uncontested. What seems like a conundrum, but merely stays illusory, is:
“Whether the State Government cannot exercise the vires invested in the local governmentto regulate parks, parking lots and impose levies”
2.12 By way of necessary digression, in most regions all over the world, the imposition of levies for parking is an acceptable phenomenon and there is no exclusivity of the vires to a particular tier of government; it is done at the state, city and municipal levels.
2.13 For example, in the state of New York, the payment of New York State and New York City motor vehicle parking, garaging or storing sales taxes is imposed pursuant to Sections 1105, 1109, 1210(a)(4)(ii) and 1212-A(a)(1)of the New York State Tax Lawand Sections 11-2001(a) and 11-2049 of the New York City Administrative Coderespectively. This is without prejudice to the powers of the counties and boroughs to impose relevant taxes.
2.14 In London too, parking is defined as the stoppage of a vehicle within a parking bay or on a single red line, when permitted. These Parking bays are an essential part of the red route as they allow parking to be controlled. Their availability is limited and some are only available during specified periods when their use will not cause any major disruption to busy road network. Payment for parking must be done at the time of parking in London or one would be liable to receive a Penalty Charge Notice, if one infracts on the necessary regulations.
2.15 Parking enforcement in London can take place either on the street by Civil Enforcement Officers (CEOs) or, in some limited circumstances, by static CCTV cameras i.e., fixed to buildings or by mobile CCTV units in vehicles.
2.16 Back to the point in focus, ourfirm view is that local governments can validly delegate their power to impose parking levies and that there is nothing precluding the delegation, if and when it occurs. A fortiori, delegation does not amount to divestment in law.
2.17 Inthe case of IDACHABA & ORS v. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081(SC), the Supreme Court, Per UWANI MUSA ABBA AJI, JSC (Pp 16 – 18 Paras F – B) (Underline Ours for Emphasis), in analyzing what a delegation of power implies, stated as follows:
“….An authority which delegates its power does not divest itself of the power.Delegation means that powers are committed to another person or body which is as a rule always subject to resumption by the power delegating. See Per MUHAMMADU LAWAL UWAIS JSC in J. O. ANAKWENZE V. LOUIS ANEKE & ORS (1985) LPELR-481(SC) (PP. 15-16, PARAS. P-B). Workings of any Government will come to a halt if there is no delegation of the exercise of power. The 5th Respondent, the Minister of Agriculture & Rural Development, can never remain in charge of implementation of decisions taken at the ministerial level. The implementation of ministry or government decisions must be delegated for the smooth working of government. However, a power or authority so given cannot be greater than that from which it is derived. A derived power can never be greater than that available at its source, hence the maxim – DERIVATIVA PROTESTAS NON POTEST ESSE MAJOR PRIMITIVA. These are done for general administrative purposes where discretion can be exercised.”
Similarly, in The Vice Chancellor, Niger Delta University & Anor V. Amadi(2019) LPELR-48279(CA), the Court of Appeal, Per ABUBAKAR MUAZU LAMIDO, JCA (Pp 12 – 13 Paras F – B), held that:
“…delegation of powers implies the transmission of power wholly and partially to another person, body or organ temporarily. In ANAKWENZE V. ANEKE & ORS (1985) LPELR 481 @ 15 – 16; Uwais, JSC (as he then was)held that; “The word delegation implies powers or body which are, as a rule, always subject to resumption by the power delegating. Unless therefore it is controlled by statute, the delegating power can at any time resume its authority.”
2.18 It is therefore beyond contrary argumentsthat the while the Fourth Schedule empowers the Local Governments to exercise constitutional authority in respect of parks, there is nothing in the law precluding the delegation of or contracting out of such powers to the State Government. Once it is shown that that contractual relationship exsits between the State Government and the concerned Local Govetnment, the executive action of the State Government or any of its agencies remains in order.
2.19 Section 79 of the Lagos State Transport Reform Law, headnoted “Delegated Authority”, provides as follows:
“… each Local Government Area may delegate the State by a written agreement, its functions with respect to parking activities”
2.20 Interestingly, the State Government cleared the air, and that would do, except proven to the contrary, when its spokesman issued a statement clarifying that:
“by a mutual agreement, LGAs and LCDAs have assigned their powers to the State Government to collect fees on parking in Lagos”
2.21 The case of Knight Frank & Rutley Nigeria Limited v. Attorney General of Kano State (supra) is radically inapplicable to the facts of the parking setback debacle or indeed the powers of Lagos Local Governments in respect of parking. In the Knight Frank’s case, Kutigi, JSC (as he then was) expressly referred to the preclusion of the ‘divestment of powers’ to the state governments and the decision did not suggest, in any way, a prohibition of delegation of such powers; it will be a legal fallacy to so construe. Several laws in Lagos State, just like the Lagos State Parking Authority (LASPA) Law, empower Local Governments to assign or delegate or contract out their authority to the State Government. Examples of such common provisions are the provisions of Sections 2(2) and 3 of the Land Use Charge Law 2018, which provide as follows:
2(2)- For the purposes of this Law, each Local Government Area in the State shall be the collecting Authority and it shall be the only body empowered to levy and collection of such rate as may be prescribed under this Law.
3- “Each Collecting Authority may delegate to the State, by a written agreement, its functions with respect to the assessment of privately owned houses or tenement for the purpose of levying and collection of such rate as may be prescribed under this Law.”
2.22 The ongoing conversation would have been different if the concerned Local Government has itself charged the same or similar levy; then the conversation would take the shape of ‘double taxation’, although arguable. In this case, the Local Government concerned has neither commented on, objected to, resisted and /or challenged the imposition of the ‘contoversial’ levy by the State Government and, for this purpose, it is only a challenge by the concerned Local Government Council that can rock the boat of LASPA’s authority or its enabling orthe legitimacy of both.
2.23 There is yet a wider prism from which the legitimacy of the LASPA, its recent action and the law can be viewed. Item 9 in the Concurrent Legislative List contained in Part II to the Second Schedule to the Constitution provides that:
“A House of Assembly may, subject to such conditions as it may prescribe, make provisions for the collection of any tax, fee or rate or for the adminstration of the law providing for such collection by a local government”
2.24 There are twin-provisions discernible from the above, to wit: (a) that a House of Assembly of a State may make provisions for the collection of any tax, fee or rate (b) that a House of Assembly may make provisions for the administration of the Law providing for such collection by a local government council.
2.25 The provision above obviously in itself admits of the power of a Local Government to charge taxes, fees or rates, as may be provided by a Law, but qualifies the power with the superior power of a House of Assembly of a State to by itself make provisions for the collection of the said tax, fee or rate which the Local governent may have ordinarily been empowered to collect; or even more, the House of Assembly may make another provision which administers the Law enabling the Local Government to collect the said tax, fee or rate.
2.26 It is our view here that it is in pursuance to the power vested in it by Item 9 in the Concurrent Legislative List contained in Part II to the Second Schedule to the Constitution, as reproduced above, that the Lagos State House of Assembly enacted the Lagos State Transport Reform Law, establishing the Lagos State Parking Authority and providing in Section 78 thereof that:
“The functions of the Authority will be to:
(a) …
(b) …
(c) take necessary steps to prevent indiscriminate or illegal parking of vehicles in collaboration with the relevant Government agencies;
(d) provide, operate and maintain parking meters for the purposes of this Part;
(e) …
(f) issue permit for development of private parking facilities;
(g) …
(h) …
(i) …
(j) charge fees on private commerical parks
(k) charge and collect fees on parking lots or any facility provided by it; and
(l) …”
And in Section 77 of the Law, that:
“The Authority shall have power to:
(a) control and manage all motor parks in collaboration with Local Government Areas in the State;
(b) enter into agreement for the provision, maintenance and management of parking spaces/ facilities provided by or vested in the Authority under this Part or any Law subjectto the approval of the Governor”
2.27 The point we are making is that, however it is viewed, the Lagos State Transport Reform Law is constitutional and the executive action(s) of the Lagos State Parking Authority is legitimate.
2.28 The argument or suggestion that the levying of setbacks amounts to ‘double taxation’, in view of payment of Land Use Charge on the Land on which the property behind the setback is situate, falls on its own head, with respect.
2.29 Setbacks are building restrictions imposed on property owners, private or commercial. The Federal, State and Local governments create setbacks through Acts, Laws, Bye-laws, ordinances and Building Codes, usually for reasons of public policy such as safety, privacy and environmental protection. Setbacks prevent land or business premises owners from crowding the property of others, allow for the safe placement of pipelines and help to preserve wetlands.
2.30 Setbacks form boundaries by establishing an exact distance from a fixed point such as a property line or an adjacent structure, within which building is prohibited. Setbacks can significantly affect a property owner’s right to develop land or to modify existing structures on the land and violating setback provisions can lead to legal action against a property owner, and penalties can include fines as well as an order to remove noncompliant structures. Property owners whose desire to build is stymied by setbacks have few remedies: they can petition their State or local government by applying for a variance-a special permission to depart from the requirements of State or Zoning Laws and ordinances but variances are generally granted only in cases of extreme hardship.
2.31 The Lagos State Physical Planning Permit Regulations, 2019, enacted under the Lagos State Urban and Regional Planning And Development Law, Cap U2, Laws of Lagos State 2015, provides for parking requirements and setback parking. Part 14 of the regulations provides for parking requirements for residential, commercial, industrial and other buildings in Lagos State. Part 14(1)(a) provides that:
“Parking provisions shall be calculated at two (2) car parking spaces per dwelling unit in all residential areas including houses, flats and duplex buildings, or two (2) car parking spaces per 100m2 of the plot area.”
2.32 The Regulations mirroring the aim of the law made provisions to the effect that the air spaces and front setbacks should be made in a manner that ensures efficient traffic flow in and out of the building. The Regulations covers Commercial buildings by providing that parking provision for a commercial development shall be one car park for every sixty (60) square metres of the total lettable floor area and in cases of places of Assembly, Auditorium, Conference, and Event Centres, the parking space for every 10 square metres of usable floor space or in accordance with Development Plan and its Approval Order. Moreso, the Regulations further provides for the statutory standards for car parks in Lagos State. It expressly provides that the vehicle parking space shall not be less than 2.5m x 5m for cars and 3m x 15m in the case of articulated vehicles with adequate provision for manoeuvrability while for people living with disabilities shall be a minimum of 3m x 5m; and 3 x 7.5 metres for light trucks.
2.33 The Regulations further provides for the provisions of building setbacks which shall be delineated for every commercial, public and institutional building. Part 7 (1)provides that: for any Planning Permit to be obtained, the architectural drawings of the proposed development shall conform to the following setbacks:
a. setback for a residential building shall not be less than six (6) metres: including 900mm of soft landscaping (greeneries), except where otherwise specified in the relevant Operative Development Plan and its Approval Order;
b. residential buildings on Victoria Island, Ikoyi, Apapa, Lekki Peninsula I and II Schemes shall have a minimum of nine (9) metres setback from the front property boundary, other airspaces shall be in accordance with the Approval Order of such scheme.
2.34 For setbacks in residential development in all traditional core areas of the State, including Lagos Island and other areas where plot sizes are substandard,Part 7(2)A(a) of the 2019 Regulations provides as follows:
(1) Residential building setback and airspace in traditional core areas in the State shall be according to the following:
(a) three (3) metres building setback shall apply on all the sides where the property has more than one (1) access road abutting the subject site;
(b) residential buildings on Lagos Island, Lagos Mainland and all other traditional core areas in the State which shall not be less than one hundred and fifty (150) square metres plot size shall observe a minimum of three (3) metres building setback;
(2) Buildings in other areas in the State shall have a minimum building setback of six (6) metres and three (3) metres air space on the sides and rear, while buildings over four (4) floors shall observe a minimum of 4.5 metres at the rear, except as otherwise stated in this Regulation. Part 8 (1) of the 2019 Regulations also provides for setback of properties of public utilities shall be as follows –
(a) Highway and Roads:
(i) 120m Right of Way – (60 metres from the median (centre) to the property line);
(ii) 90m Right of Way – (45 metres from the median (centre) to the property line);
(iii) 60m Right of Way – (30metres from the median (centre) to the property line);
(iv) 30m Right of Way – (15metres from the median (centre) to the property line);
(v) 24m, 18m , 15m, 12m (12m, 9m, 7.5m and 6m right of ways respectively, from the centre to the property line as applicable);
2.35 I hold the view that having prohibited encroachment on or extension of building structures to setbacks, the State or Local Government authority assumes statutory control over the portion of land; more like, suggesting that the said portion reverts to the State or Local Government Authority for effective control. What the State or Local Government, as the case may be, then does in appropriate circumstances, is to set up a fine-imposition regime for usage of the setback for parking. The fee imposed or prescribed may bear the pseudonym of a ‘levy’, but it is in essence and effect, a punitive measure to achieve the ‘environmental or nuisance-curbing aim’ which the statutory requirement of setback or prohibition of setback parking originally set out to achieve; whether the fines or levies collected under this regime in turn generate revenue to the Government is a different kettle of fish, and does not invalidate the entire process itself.
DR. ‘KEMI PINHEIRO, SAN, FCI, Arb
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