Lagos Setback Parking Levy Double Taxation, Unjustified – Jiti Ogunye

In this interview with EMMANUEL OJO, public interest lawyer, Mr Jiti Ogunye, speaks about the legality or otherwise of the levy introduced by the Lagos State Government for parking vehicles on road setbacks

What does the law say about the road setback parking levy introduced by the Lagos State Government?

There is Lagos State Parking Authority Law that empowers the authorities to impose levies for parking. It is that law that is being implemented by the state. When issues like this come up, it is important to have a sober and calm appreciation of the matter. Now, the contention has been that under our constitutional democracy, particularly with reference to Section 7 of the constitution, it is the local government that has the constitutional enablement or power to build and manage parks and gardens and charge rates or fees for their usage. So, motor parks and other parks are under the constitutional remit of the local government. Therefore, the state government does not have the constitutional powers to maintain parks or charge rates for their usage.

However, the LASPA law and another law, which I will reference presently, are laws validly made by the Lagos State House of Assembly and even if it is being contended that the laws are made in excess of the constitutional powers of the state House of Assembly, it will take a court to so pronounce and invalidate those laws. To the extent that those laws are yet to be invalidated or voided by a court of law, they remain operational and are capable of being enforced by the state.

Now specifically about imposition of levies for parking of vehicles on road setbacks, there are two arguments. The first is about the legality or constitutionality of the policy; the second is about the fairness of the policy, in the light of the current economic situation and what people are going through in the country. It is about whether in the name of generating revenue, this imposition is justifiable and rational.

My view concerning this two-pronged argument is that on the issue of constitutionality and legality, I have said that even it is being strongly suggested that this law is an infringement on the legislative domain of the local government, it will take a court to pronounce that what the state government is doing is an usurpation of the constitutional powers of the local government. But  right now, no court of law has done that.

On the other issue of fairness, my view is that these setbacks we are talking about are spaces in the front, side or back of a building that is already being levied Land Use Charge. The issue is whether the setbacks that the government is claiming belongs to it should attract charges or levies separate from the Land Use Charge already being levied on the buildings in front of which these setbacks are situated. My view is that in the circumstances of the economy, with what people are going through, with the issue of multiple taxation, it’s not justifiable.

Clearly, this policy is not about promoting a friendlier environment in terms of reducing the number of vehicles on the roads; because no cars are being taken off the roads. The goal of the policy is to generate revenue, which makes it something that I don’t support. If the greed for revenue generation or revenue growth is what is driving this, then it is not right.

Many people who are outraged by this, are using the argument of legality. Of course, an action can be taken to court to test the legality of the policy; but, for me, I would rather argue on the grounds of fairness because government policies should revolve around the convenience, comfort and the welfare of the people.

If this case is tested in court, as you have suggested, what do you think the outcome will be?

I cannot speculate on the outcome but it’s a valid point to be raised in court and as you said, interested parties, all those who are being levied, public interest litigants can test the legality of that law in a court of law and then the court will make a pronouncement on that. Even if there could be other arguments, just as I have said, this, for me, amounts to double taxation. The government is already levying Land Use Charge on properties and the setback that you are claiming belongs to the government is like what is called appurtenances; it’s like something that attaches; it’s like you are transiting from a public thoroughfare to your own property. If you are bringing your car or you want to pass, you will have to pass through that setback to get to your own compound. If there is a gutter in front of your house and there is a setback, the small road that leads to your house is your access to your house. If government is not charging you for driving your car over that portion, why then should government charge you for parking your car in front of your building, particularly when this is not about decongesting roads and making the environment friendlier? This is not about trying to protect the environment because of climate change or global warming; it is not about encouraging people to use public transport facilities, which are not there in the first place. That is not the case; rather, what is going on is that they are trying to generate money and that, for me, is oppressive and not right in the circumstances.

This issue of road setback parking levy gained public attention after a small business outfit in Lekki complained about being billed 290,000 per annum. Do you share the view by those who say the amount is outrageous?

Affordability is not the basic consideration here. For me, the basic consideration here is whether the levy is justifiable in the circumstances. Revenue is not generated arbitrarily just on the basis of affordability, otherwise, people will find it difficult to create wealth in society, because part of the problem that we have is that in this economy, people and businesses do not have enough money to invest. People don’t have savings, businesses don’t have funds that they can invest to further grow. They have been taxed already. They pay all sorts of taxes. If they conduct any transaction, they pay withholding tax and all sorts. The point, for me, is not that they can afford it. Government policies are not driven on the basis of belief that the people they want to tax can afford it. What is the yardstick for measuring affordability, anyway?

Talking about justification, will you say Lagos State has justified taxes being paid by residents in terms of provision of social amenities and infrastructures?

That’s a political question and that for me is not something that I can discuss fairly without referencing data. The Lagos State Government is saying it now publicly that they are generating N50bn monthly. They do their budget every year and they spread the money on projects that they are doing. The critical question, for me, is whether all the projects they are spending money on, are real or are mere phantom projects for the purpose of siphoning money. These are the questions; but I cannot arbitrarily say there is nothing to show for the revenue being generated by the state. This is something that a politician will say, and I am not a politician. You can same the same thing about Nigeria as a country. There are opinions like that but I want to be very factual in my own analysis and be fair. So, I won’t go as far as saying that there is nothing in Lagos to justify the revenue they are collecting, to warrant them even asking for more revenue.

It is for this reason that the constitution has made provisions for the appointment of an auditor-general of the state. That’s the language of the constitution. So, if Lagos State is generating X revenue, the question will be whether the money is well spent and whether there is regular auditing of the public accounts of Lagos State. All the public accounts have to be audited by the auditor-general. Are they doing their work in that respect? Are Lagosians getting value for their money? If after we’ve asked these questions and there is data evidence showing clearly that what they are generating is not reflected in the project they are claiming to have executed or what they are doing, then people would then have to ask legitimate questions and then decide what to do with that kind of government.