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AFTER a prolonged legal tussle, the Federal High Court yesterday said
it was illegal for Lagos State Government or its agents or privies to
collect tolls on the recently-constructed Lekki-Ikoyi bridge.
The judgment delivered yesterday by Justice Saliu Saidu in Lagos
followed a suit filed by lawyer and human rights activist, Ebun
Adegboruwa, against the collection of tolls on the bridge.
However, in a swift reaction, the state government said it would
appeal against the judgment because of what it termed its ambiguous
nature.
Saidu held that there was no law in Lagos State authorising the collection of toll on the bridge by the government.
According to the court, the power to control the Lekki Lagoon and
other Federal Navigable Waterways lies with the national government in
Abuja.
He said although the Federal Government has given some authority to
the state to construct the bridge, there was no law authorising or
permitting the collection of toll on it.
The judge noted that the bridge was not a Public-Private
Partnership (PPP) initiative for which the collection of toll can be
allowed.
Justice Saliu said: “The question is: Has the third respondent,
Lagos State Government, made appropriate law to enable it collect toll
on the bridge?
“The third respondent only cited Section 27, 28 and 29 of the Lagos
State Public Private Partnership Law 2011 as making provision for
collection of toll.
“There’s nothing before me to show that the subject matter in this case was as a result of the Public Private Partnership Law.
“The fact before this court is that the bridge was built with the
third respondent’s money. I agree and uphold the construction of this
bridge as of right.
“The third respondent has power to generate revenue from the subject matter, but the existing law does not cover it.
“The third respondent can only enact a law to that effect before it can collect toll on the bridge.”
But Ipaye said the state would immediately file an application for
stay of execution of the judgment as a precautionary measure in order to
prevent people from acting contrary in complete misunderstanding of the
court’s verdict.
The commissioner, who briefed us in Lagos after the
judgment, said the clarification became necessary because of the
importance of the project to the state as the court never made any
declarative or consequential orders, only that the court said there is
no law permitting the state to collect toll on the bridge.
He contended that the judgment contained at least two or three
fundamental errors, firstly that the court, without addressing the
submission of parties, held that the payment made by Julius Berger on
behalf of the Lagos State Government to the Nigerian Inland Waterways
Authority (NIWA) in respect of the bridge construction, amounted to a
concession the agency was the only authority to regulate river channels
in the country.
Ipaye explained that the payment of N10 million was made by the
contractor when NIWA was stalling the multi-billion naira construction
and that Lagosthen filed the proof of payment without prejudice to the
comprehensive arguments on the right of the state to control its inland
waterways.
Another fundamental error in the judgment, the commissioner said,
was the assumption of the court that the Private Partnerships Law of
Lagos State which was cited in support of toll collection did not apply
simply because the bridge construction was not by public-private
partnership.
Ipaye further stated that contrary to the court’s assumption,
Section 29 Law clearly states that it applies to public infrastructure
or public assets. “Tolls chargeable under the Law can clearly be on any
public infrastructure or asset, not necessarily on those built with
private sector partnership. The maintenance and tolling of the bridge is
in fact by a private sector company to which a concession was granted
by Lagos State Government.”
“It is noteworthy that the claimant never sought from the court any
declaration to the effect that there was no law to cover the collection
of tolls on the bridge and the pronouncement made in this regard was
not one of the nine declarations sought by the applicant,” he noted.
In the public interest suit, Adegboruwa had sought an injunction
restraining the Lagos State Government from collecting toll from
motorists on the bridge.
Named as first and second respondents in the suit are the
Attorney-General of the Federation and NIWA, while the Attorney-General
of Lagos State and the Alausa, Ikeja Government are the third and fourth
respondents.
In challenging the collection of toll on the new Lekki-Ikoyi
suspension bridge, Adegboruwa urged the court to apply the provisions of
Section 4 of the 1999 Constitution to determine the supremacy of laws
between the National Assembly and the House of Assembly.
But during the pendency of the suit, Governor Babatunde Fashola
(SAN) on May 29, 2013 commissioned it and announced a toll regime of
N350 for Sport Utility Vehicles (SUV) and N250 for cars.
Adegboruwa had also submitted that once the National Assembly had
made an Act in respect of any subject, such as the Lekki Lagoon on which
the bridge is erected, a State House of Assembly is incompetent to make
contrary laws.
He, therefore, urged the court to hold that even if the Federal
Government through NIWA had authorised Lagos State to construct the
bridge, such authority did not extend to collection of toll which is a
form of taxation.
He prayed the court to declare the collection of toll on the bridge illegal and unconstitutional.
But Ipaye had argued that so far as there was a concession from the
Federal Government for the construction of the bridge, the case of the
applicant was nothing but an academic exercise.
He stated that though Section 4 of the Constitution grants the
National Assembly powers to make laws, the efficacy of such legislation
would depend on the areas reserved for it.
According to him, there are laws in Lagos State, such as the one on
public partnership, which authorize (s) the collection of tolls on
roads and therefore urged the court to dismiss the applicant’s case.