Return of Toll-Gates, Waiving Osinbajo’s Immunity, et al
Introduction
The recent announcement that the Federal Government intends to re- introduce tolling on Federal highways, has been somewhat overshadowed by the proposed increase in the rate of Value-Added Tax (VAT) from 5% to 7.5%. Both have predictably been met with public disquiet, given the parlous state of the economy which has seen the take-home pay of the average public worker, taking him/her anywhere but home.
While the proposal is understandably motivated by the socio-economic imperative of ramping up Government revenue, even more important, however, is the constitutional imperative that no government policy should violate applicable laws. This includes the Constitution itself, our grundnorm. Accordingly, we need to do a quick fact-check to see whether reintroducing tolling on Federal highways is legally and/or constitutionally defensible. Is it? Let’s find out.
Constitutional basis of Tolls, Levies, etc By virtue of Section 4(3) and Item 63 of the Exclusive Legislative List of the 1999 Constitution of Nigeria, only the National Assembly is competent to legislate on “federal trunk roads”. However, prior to the advent of this provision, the Federal Highways Decree (now Act) of 1971 had vested in the Minister responsible for Federal highways, the “power to erect, equip and maintain toll gates on any Federal highway as and when required, with the approval of the President”: see Section 2(1) of the Act, which goes ahead to empower the Minister to “prescribe such fees, dues or charges that may be payable at any (such) toll-gate”.
However, the extant statute on the division of the powers of the federating units (Federal, State and Local Governments) over taxes and levies (including road taxes) is the Taxes and Levies (Approved List for Collection) Act (formerly Decree) 1998. By virtue of Item 6 of Part II of the Schedule to the Act, State Governments possess the sole authority to collect road taxes. Section 2(2) of the Act categorically bans “any person, including a tax authority, from mounting a road block in any part of the Federation for the purpose of collecting any tax or levy” (which includes any fee or charge - Section 4).
Under Sections 2 and 3 of the Act, it is a crime for any person “other than the appropriate tax authority to assess or collect on behalf of the Government, any tax or levy listed in the Schedule” to the Act. The appropriate “tax authority” is defined in the Act as “the Federal Board of Inland Revenue, the State Board of Internal Revenue, the Local Government Revenue Committee or a Ministry, Government Department or any other Government body charged with the responsibility for assessing or collecting the particular tax”.
Now, as ever, the question is, whether either of these statutes (or any part(s) thereof) are valid, either by reference to the Constitution or any other applicable law. As previously stated, both the Taxes and Levies (Approved List for Collection) Act and the Federal Highways Act pre-date the 1999 Constitution. To that extent, they take effect under it as “existing laws,” as long as they are within the legislative competence of the appropriate legislative authority, vis-à-vis their subject matter. See Section 314(5)(b) of the Constitution. In this case, the appropriate legislative authority is the National Assembly: Sections 4(3), 315(1)(a) and Item 63 of the Exclusive Legislative List of the Constitution, as aforesaid.
At this juncture, it is important to stress that, strictly speaking, the imposition of road levies or charges, is not specifically conferred on any of the three tiers of Government by the Constitution; it is merely inferred, by virtue of Item 68 of the Exclusive List, which empowers the National Assembly to legislate on “any matter incidental or supplementary to any other mentioned elsewhere in this List”.
If this view is correct, it will validate the provisions under review, as it will mean that the National Assembly is competent to empower both State Governments and the Minister of Works, to collect road taxes generally and to toll Federal highways, respectively. Is there a conflict here? Seemingly so, yes, but I believe it can be resolved in a couple of ways:
(i) A specific clause or a statute prevails over a general one on thesame subject-matter;
(ii) An older, inconsistent statute is abrogated by a more recent one on the same subject-matter.
Applying the first test, the proposed toll-gates on Federal roads would be saved, because the applicable law is specific in scope - Federal highways - whilst the other ( the Taxes and Levies Act) which empowers State Governments to collect road taxes is general (being applicable to all roads, without discrimination). The second parameter is more problematic, however, as it would abrogate the older law (the Federal Highway Act), in favour of the recent one, the Taxes and Levies, etc) Act.
Which is to be preferred? It remains to be seen, but, if one may hazard a guess, to the extent that the latter law specifically bans the erection of road-blocks (read: toll-gates) for the purpose of collecting any tax or levy, it seems to be more in consonance with current economic realities, at least from the perspective of those who have to bear the brunt of the policy - the toll-payers. Their (our) views must matter, as laws are made for men, and not the other way round.
Vice-Presidential Immunity: Can it be Waived?
The recent offer by Vice-President, Prof. Yemi Osinbajo, SAN, to waive the immunity conferred on him (and the President, Governors and their Deputies) under Section 308 of the Constitution, in order to facilitate “a robust adjudication” of the allegation of corruption levelled against him and the Federal Inland Revenue Service, has elicited a divergence of opinions from those whose views on the issue matter: Lawyers.
While some have asserted that the immunity clause is merely a shield, to protect its beneficiaries - including the Vice-President - from being dragged to court while still in office, others have posited that it also constitutes a disability, and bars the Vice-President from instituting any action to redress perceived wrongs done to him. I believe that the latter view, is a fallacy.
The issue was settled twelve years ago, in GLOBAL EXCELLENCE COMMUNICATIONS v DONALD DUKE, SC: 313/2006, where the Supreme Court, in a unanimous judgement, followed the dictum of Ayoola, JSC, in TINUBU v I.M.B SECURITIES (2001) 8 NWLR Part 740 Page 192 @ 721, in rejecting a construction of the relevant provision of the Constitution ( Section 308) “as also constituting a disability on the person granted immunity”.
Accordingly, in the case of Vice President Osinbajo, nothing bars him from suing the maker of the supposedly defamatory allegations. Tinubu v IMB is no authority to the contrary, as it was categorically overruled by the Apex Court in Global Excellence v Donald Duke, as aforesaid.
CBN’s Directive to Banks to Set-off DebtorCustomer’s Funds
In yet another curious, albeit well-intentioned, initiative, the Central Bank of Nigeria (CBN) is reported to have directed banks to off-set the credit balances of any customer, against their debts in other banks. Like the Apex Bank’s recently introduced levy on cash withdrawals/deposits above specified thresholds, this policy, in my view, poses more questions than it answers.
This is because, as previously argued on these pages, short of a prior agreement by the debtor to cross-link his or her accounts in all or several banks, it would violate his/her right to fair hearing under the Constitution, to compulsorily acquire his funds in one bank in satisfaction of an un-adjudged debt purportedly due to another bank. See Sections 36(2) and 44(1) & (2)(c) of the Constitution. In the absence of such an agreement, only a specific power conferred on CBN by any law, can validate that directive.
Beyond its general powers of management and superintendence of the financial system under Sections 2, 32 and 42 of the CBN Act, no law empowers the Apex Bank to introduce such a policy.
That Police Security Trust Fund The law recently signed by President Muhammadu, imposing yet another levy, this time, on the profits of banks for the purpose of shoring up the funding of the Police, might seem like a step in the right direction. Given that all of us are paying the price for the glaring short-comings of the Police (increased incidents of kidnapping, etc), why would anyone question any move designed to make a difference in that regard?
The reason is simple: the Police is not the only security agency which suffers from that challenge. Why single it out? The law frowns on that sort of discrimination. It is known as the right to equal protection of the law, and is codified in Article 3(2) of the African Charter. What is good for the goose, ought to be sauce for the gander. Therefore, the scope of the beneficiaries of the law, ought to be widened to include other security agencies.
“...... SHORT OF A PRIOR AGREEMENT BY THE DEBTOR TO CROSS-LINK HIS OR HER ACCOUNTS IN ALL OR SEVERAL BANKS, IT WOULD VIOLATE HIS/HER RIGHT TO FAIR HEARING UNDER THE CONSTITUTION, TO COMPULSORILY ACQUIRE HIS FUNDS IN ONE BANK IN SATISFACTION OF AN UNADJUDGED DEBT PURPORTEDLY DUE TO ANOTHER BANK”