3PLR – OLOYODE AKINGBADE V. LAGOS TOWN COUNCIL
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OLOYODE AKINGBADE
V.
LAGOS TOWN COUNCIL
SUPREME COURT OF NIGERIA
24TH OCTOBER, 1955
3PLR/1955/6 (SC)
OTHER CITATIONS
BEFORE: ABBOTT, J
BETWEEN
OLOYODE AKINGBADE (Secretary of Lagos and Suburbs Corn-mill Owners)
V.
LAGOS TOWN COUNCIL
REPRESENTATION
LAMBO for plaintiff.
DAVID for defendants.
MAIN ISSUES
TAXATION AND REVENUE LAW:- Principle relating to acts or government that impose taxation on the subject – Need for imposition of a tax to be in plain terms through an Act of Parliament clearly showing an intention to lay a tax burden – Duty of court where no such intention is established
TAXATION AND REVENUE LAW:- Power to charge a fee in the form of an imposed tax – Whether can be inferred as an incidental and necessary part of carrying forth a legislated objective
GOVERNMENT AND ADMINISTRATIVE LAW:- Local Government – Enactment of Public Health Rules under Public Health Ordinance – Ultra wires doctrine -Construction of statutes which impose taxation – Public Health Ordinance, section 42 Public Health Rule 55 (3).
GOVERNMENT AND ADMINISTRATIVE LAW:- Regulatory practices – Where a fee is charged as part of giving effect to regulatory objective – Whether valid without an express legislative stipulation – Whether power to charge fee can be inferred as a necessary and incidental element of giving effect to the legislative objective
HEALTHCARE AND LAW:- Healthcare policy and business operations – Public Health Ordinance, section 42 Public Health Rule 55 (3) – How interpreted so as to maintain public health without imposing an undue tax/levy on food operators
AGRICULTURE AND FOOD LAW:– Agricultural mills – Charging of a fee for registration towards the regulation of corn-mills – Whether a tax – Validty of – Need for tax/fees/fines to be imposed only with clear legislative authority – Whether the absence of a fee could not be said to prevent the exercise of the powers to regulate a corn-mill with due regard to the maintenance of public-health, provided registration thereof is carried out
INTERPRETATION OF STATUTE:- Construction of statute which impose levy/tax – Need for strict interpretation – Public Health Ordinance, section 42 Public Health Rule 55 (3).
MAIN JUDGMENT
ABBOTT, J.:
The Plaintiff here claims
- For a declaration that the purported making of Public Health Rule 55 (3) (as amended by the Public Health Rules 1954), under the provisions of Public Health Ordinance section 42 was ultra wires and that the said rule is therefore void and of no effect.
- For the return of the sum of £5 paid by the said Plaintiff to the Defendants under the said rule.
- £100 Damages.
The claim for damages has been withdrawn so all I have to deal with is the first two items.
The facts are not in any way in dispute and the whole case turns on the question whether the making of the Public Health Rule No. 55 (3) made under section 42 of the Public Health Ordinance (Cap. 183) was ultra vires. The only fact I need mention here is that the appropriate authority has charged the plaintiff a fee for the registration of his corn-mill.
Section 42 of Cap. 183 comes under the heading “Miscellaneous Provisions” and empowers the making of rules relating to the general public health.
Under those powers, Public Health Rule No. 55 was made and it reads as follows:
“55. (1) All bake-houses, dairies, aerated water manufactories, eating-houses and food preserving and food preparing establishments shall be registered annually in the office of the local authority by the proprietor or occupier carrying on the business.
(2) A local authority shall not register any premises under this rule until the premises have been inspected and approved by the health officer.
(3) There shall be paid in respect of every such registration a fee of five shillings and the local authority shall issue certificate of registration in the Form B in the Schedule.
(4) Any such premises, which are not registered in the month of January in each year, shall be deemed to be unregistered premises.”
The appropriate authority subsequently amended the rule to provide for a fee of £5 instead of 5s. The amendment is stated in Western Region Legal Notice No. 54 of 1954 (published in Western Region Gazette Supplement No. 14 Vol. 3 of 8th March, 1954) to be made under the powers conferred by section 42 of Cap. 183.
No point arises as to the rule and its amendment having been made by the proper authority, it being common ground that, if the powers exist, they were correctly exercised.
It is also common ground that a corn-mill, in respect whereof the plaintiff was charged the fee, is one of the establishments specified in section 42 (x) of Cap. 183.
Mr Lambo, for the plaintiff, referred in his argument to Attorney-General v Wilts United Dairies (1). In that case, the Food Controller had statutory powers to regulate the supply and consumption of food in such manner as he thought best for maintaining a proper supply of food and to take such steps as he thought best for encouraging the production of food. Acting under these powers, the Food Controller made an order authorising the issue of licences (inter alia) to buy milk subject to such conditions as the Food Controller might determine. It was held by the Court of Appeal that an order in such general terms could only cover conditions which came within the scope of the Food Controllers statutory powers, and that the imposition of a condition of granting a licence that the licensee should pay to the Crown a charge of 2d per gallon of milk purchased was unjustified. Scrutton, L.J. said (at p. 885)
“It is conceivable that Parliament, which may pass legislation requiring the subject to pay “money to the Crown, may also delegate its powers of imposing such payments to the “Executive, but in my view the clearest words should be required before the Courts hold “that such an unusual delegation has taken place. As Chief Justice Wilde said in Gosling v “Velley, 12 Q.B., at p. 407: ‘The rule of law that no pecuniary burden can be imposed “upon the subjects of this country, by whatever name it may be called, whether tax, due, “rate or toll, except upon clear and distinct legal authority, established by those who seek to “impose the burden, has been so often the subject of legal decision that it may be deemed a “legal axiom, and requires no authority to be cited in support of it’. Particularly where the “sums to be paid to the Crown are to be paid as a condition of obtaining a licence to exercise “the ordinary rights of a subject should the dearest words be required.”
I also desire to refer to the judgment in the same case of Atkin, L.J. at p. 886 of the report where he quotes at length from the Bill of Rights. Atkin, L.J. says
“No power to make a charge upon the subject for the use of the Crown could arise except “by virtue of the prerogative or by statute, and the alleged right under the prerogative was “disposed of finally by the Bill of Rights (1 W. and M., sess. 2, c. 2). It may be convenient “at this stage to remind ourselves of this statute, an act for declaring the rights and liberties “of the subject. After reciting that the late King, by the assistance of divers evil counsellors, “judges, and ministers, employed by him, did endeavour to subvert and extirpate … the “laws and liberties of this kingdom … by levying money for and to the use of the Crown “by pretence of prerogative for other time and in other manner than the same was granted “by Parliament … all which are utterly and directly contrary to the known laws and “statutes and freedom of this realm, the lords and commons declare that levying money for “or to the use of the Crown (as above) is illegal; and pray that it may be declared and enacted “that all and singular the rights and liberties asserted and claimed in the above declaration “are the true ancient and indubitable rights and liberties of the people of this kingdom and “shall be strictly holden and observed … and all officers and ministers whatsoever shall “serve their Majesties and their successors according to the same in all times to come, all “which their Majesties are contented and pleased shall be declared and enacted and established by authority of this present Parliament and shall stand, remain and be the law, of this realm for ever, and the same are by their said Majesties by and with the advice and consent, etc., declared, enacted and established accordingly. Though the attention of our ancestors was directed especially to abuses of the prerogative, there can be no doubt that this statute declares the law that no money shall be levied for or to the use of the Crown except by grant of Parliament. We know how strictly Parliament has maintained this right and, in particular, how jealously the House of Commons has asserted its predominance in the power of raising money. An elaborate custom of Parliament has prevailed by which money for the service of the Crown is only granted at the request of the Crown made by a responsible Minister and assented to by a resolution of the House in Committee. By constitutional usage no money proposal can be altered by the Second Chamber, whose powers are confined to acceptance or rejection. Similar elaborate checks exist in respect to authority for expenditure of the public revenue, both in respect to obtaining the statutory authority to expend money and to obtaining the executive acts necessary to place the money at the disposal of the spending authority.
“In these circumstances, if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorised the particular charge. The intention of the Legislature is to be inferred from the language used, and the grant of powers may, though not expressed, have to be implied as necessarily arising from the words of the statute; but in view of the historic struggle of the Legislature to secure for itself the sole power to levy money upon the subject, its complete success in that struggle, the elaborate means adopted by the Representative House to control the amount, the conditions and the purposes of the levy, the circumstances would be remarkable indeed which would induce the Court to believe that the Legislature had sacrificed all the well known checks and precautions, and, not in express words, but merely by implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his department.”
Atkin, L.J. continues:
“There are clearly no express words and all the powers given appear capable of performance without any power to levy money.”
Mr Lambo next referred to Morgan v Palmer (2) wherein a fee had been charged for granting a licence and it was held this was unjustified, there being no immemorial usage or Act of Parliament to authorise the fee.
Mr Lambo concedes that power to regulate (inter alia) corn-mills includes power to require their registration. Registration is obviously essential to enable the controlling authority to regulate. It could not regulate corn-mills, for instance, if it did not know how many there were, or where they were.
Plaintiff’s counsel next drew my attention to section 41 of Cap. 183 which expressly confers, in subsection (iv), power to prescribe charges and fees. He submits that, if the legislature intended to give power to charge fees for any of the matters specified in section 42, it would have said so.
Mr David for the defendants says that section 42 (x) of Cap. 183 gives the appropriate authority power to do anything except prohibit the trades mentioned therein, and, in particular, that “regulation” necessarily includes the fixing and imposition of fees.
I do not find myself in agreement with either of these propositions. I have spent considerable time endeavouring to find authority for a somewhat similar proposition-namely, that the power to require registration includes a power to charge a fee for the registration. I can find none, and I suspect that there is none for the reasons given in Attorney-General v Wilts United Dairies (1).
Another authority to which I desire to refer is Ormond Investment Co. v Betts (3). In the House of Lords, Lord Buckmaster states the cardinal principle relating to acts that impose taxation on the subject, “a principle well known to the common law and that has not been and ought not to be weakened-namely, that the imposition of a tax must be in plain terms.” Lord Buckmaster goes on to quote the words of Lord Blackburn in Coltness Iron Co. v Black (4) -”No tax can be imposed on the subject without words in an Act of Parliament clearly showing an intention to lay a burden on him.”
It cannot be said, in my judgment, that section 42 of Cap. 183 “clearly shows an intention to lay a burden on the subject”-that is to say a tax or financial burden.
I have finally to consider whether the charging of a fee for the registration is so necessary a part of the regulation of a corn-mill that the power to charge a fee must be taken to be implied -in other words, is it to be said that the power to regulate cannot be effectively exercised without the imposition of a fee for registration? I am firmly of the opinion that the answer to this question is in the negative. I see no reason why the authority should not be able to regulate a corn-mill with due regard to the maintenance of public-health, provided registration thereof is carried out. The absence of a fee could not be said to prevent the exercise of the powers.
In my judgment therefore the Plaintiff is entitled to succeed in this action and I declare that paragraph 3 of Public Health Rule 55 (as amended) is ultra vires, and therefore void and of no effect. I order that the sum of £5 paid by the plaintiffs under this rule be refunded to them by the defendants, who must also pay costs assessed at £15-15s-0d plus £7-11s-2d disbursements.
Judgment for plaintiff.
