An Examination of the Doctrine of Implied and Inherent Power of the National Government and the Residual Power of State in a Federation: Two Doctrines in Perpetual Conflict

 

By Shittu A. Bello, Ph.D Faculty of Law, Leadcity University Ibadan, Dr Simon O. Abifarin, College of Law, Joseph Ayo Babalola, University Ikeji Arakeji, and N.O.A. Ijaiya, Faculty of Law Unilorin.

 

Abstract

 

This paper discusses the doctrine of implied power of the Congress of the United States of America vis-à-vis the residual power of states. It is globally accepted that in a federation, powers are distributed between the central or federal government and the component states or regions. In this power distribution, there is bound to be confusion, conflicts and ambiguity due to the doctrines of implied and inherent powers of the congress, which are antithetic to the residual powers of the states. This paper examines the residual powers of the states in a federation, the implied and inherent powers of the Congress, and how they are in perpetual conflict. We further question the applicability of the doctrines of implied and inherent powers to the National Assembly in Nigeria. The paper concludes by recommending a strict constructionist approach in construing the constitution on whether the implied or inherent powers should be assigned to the National Assembly in Nigeria.

 

Introduction

 

The form of government established in the constitution exhibits several important principles. The first is that sovereignty resides and stems from the people.[1] It may also be said that the government is a republic or representative democracy.[2] In Nigeria, we operate federalism and presidential democracy where the national government is exercising limited or enumerated powers. Almost all the powers are listed in the constitution.[3] The federal government has no power not granted by the Constitution or reasonably to be inferred therefrom. It is the State government that has the residual powers. Under this doctrine of residual powers of the States, the states are supposed to have broader and wider powers than the national government.

 

The power of the National government rests directly upon the people, as has been stated previously. The powers of the states’ governments, too, rest upon the people. Neither level of government, national nor state for its existence depends upon the other, but are equal partners in another sense.[4] This is the basic principle of federation. Despite the plane of equality upon which the national and state government exist the principle of national supremacy is observed between the two.[5] The supreme-law-of-land clause establishes this principle. The Constitution, laws and duties of the national government will prevail over the state constitutions or laws in case of conflict.[6] While this might seem to be quite an impairment of the sovereign equality of the states, it is the only possible working arrangement otherwise the legal situation in each state could be slightly different from that of other state what national law means would be subject to 36 different interpretations (or four different interpretations under the four regions).

 

Again, the Constitution being the principal law of a state cannot contain in detail all the rights, duties and obligations of citizens, government and her apparatus, therefore the doctrine of residual power emerges after exclusive and concurrent[7] legislative lists. The doctrines of implied powers and inherent powers of the National Assembly may also be helpful in certain circumstances where the Constitution is not explicit on an issue.[8] It is in the light of this that we intend to consider the issues of residual power of states in a federation like Nigeria, and its inconsistency with the doctrine of implied and inherent powers of National Assembly as operative in America.

 

Constitutional Basis of Legislative List in a Federation

 

According to Akande, this important subject of distribution of legislative powers between the Federal and State Governments is embodied in the second Schedule.[9] There are 68 numbered items and two items of matters both incidental and supplementary to those mentioned on the Exclusive List and 12 main items on the Concurrent List subdivided into 30 Subsidiaries.[10] The National Assembly may also make laws for the peace, order and good government of the Federation or any part thereof in respect to any matter that is included in the two legislative lists. In addition to this, it can also legislate for the Federal Capital Territory on any matter, irrespective of its inclusion in the Legislative List.[11] In this regard, therefore, the National Assembly has the same residual powers of Legislation with respect to the Federation Capital Territory as are granted to each State Legislature with respect to the State.[12]

 

In respect of matters on the Exclusive Legislative List, only the National Assembly may legislate. A State Legislature may legislate on matters not on Exclusive List. This means that the States can legislate on matters on the Concurrent Legislative List as well as on all other matters which are not on either of those two lists except where the matters are “incidental and supplementary” to the Exclusive Legislative List. This paper argues that such can be likened to implied and inherent powers of American Congress.[13]

 

In a way, the Concurrent Legislative List contains an element of exclusivity within itself for the state, as well as it being empowered to make laws with respect to antiquities and monuments. But the State House of Assembly may make laws for the State or any part thereof with respect to antiquities and monuments not so designated[14]. As such, once an antiquity in a State with the consent of the State has been designated a national monument, it falls within the exclusive control of the National Assembly even though it lies physically in the State. Without such designation, the National Assembly has no power to make laws on it. In any case where the concurrent Legislative item is so spread as to be covered by both the federal legislature and the state legislature and both make laws, the law made valid by the National Assembly shall prevail and the State law, to the extent of inconsistency, shall be void.[15]

 

The question of an inconsistency between Federal and State Law came up in the case of Girembe v. Bornu L.A.,[16] where the appellant had been convicted in the court of the Shehu of Bornu on a charge of culpable homicide punishable by death. The High Court of Northern Nigeria had confirmed the sentence, but the conviction was set aside by the Supreme Court because, while the record of the trial disclosed evidence of severe assault by the accused person upon the deceased shortly before his death, there has been no medical evidence before the court that the deceased died because of the injuries inflicted upon him.[17] The court considered it appropriate to order retrial[18] before the Northern Region High Court, and did so, having power to make such an order under section 20 of the Federal Supreme Court Act, 1960. The result would be the trial of the accused before the High Court in a situation not specified in section 185 of the Northern Region Criminal Procedure Code, which purported to define exhaustively the circumstances in which such trials could take place. It followed that the code, a Regional Law is inconsistent with a Federal Act. By virtue of the Constitution,[19] the Act prevailed. Various criteria for determining inconsistency between a Federal and State Legislation have been employed in other Federal Constitutions. In the Australian case of Australian Boot Trade Employer’s Federation v. Whybrow,[20] the view was expressed that a Commonwealth Law and a State Law are not inconsistent if it was possible to obey the State Law without disobeying Commonwealth Law. It must be mentioned that there is no Concurrent List in the Australian Constitution, just as there is none in the United States and Canada; the Constitution enumerates only the Exclusive powers of the Federal Legislature. In spite of that, it is provided that where a State Law is inconsistent with a Commonwealth Law, the latter prevails. As more clearly enunciated by Dixon J. in Victoria v. Commonwealth: -[21] “where a State Law is inconsistent with a Commonwealth Law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid[22]. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete enactment of the law governing a matter or set of rights and duties, then for a State Law to regulate or apply to the same matter or relation s regarded as a detraction from the full operation of the Commonwealth law and so is in consistent. Thus, if a legislature clearly shows its intention of “covering the field” (a doctrine well known in Australia and United State of America) that is a conclusive test of inconsistency.[23]

 

In contrast to the Nigerian method of detraction or the Australian and American methods, the Indian Constitution[24] provides a unique method. It has three distinct lists, one exclusive to the Union Parliament, one exclusive to the State and a third which is concurrent to both. Besides, only the Union Parliament can legislate on a matter not on any of the Lists. This is another method of indicating the superiority of the Union Parliament over State and is more indicative of a very strong-centred Federation. This later effect has been achieved in Nigeria by the placing of most of the important matters of government within the exclusive legislative competence of the Federation Legislature.[25] These two broad legislative powers of the federation has led to discontent and the current agitations for restructuring and devolution of powers.

 

Distribution of Legislative Power in a Federation

 

Exclusive Legislative List

 

These are the powers reserved exclusively for the central government: This means that only the central government can legislate on the two lists and when a State or region legislate on the exclusive list it can be declared null and void and unconstitutional.[26]

 

Concurrent List

 

These are where powers are shared jointly by both the central and regional/state government as stipulated in the constitution even though both governments can make laws on matters that falls under Concurrent List, the central is Supreme. This means where there is a Conflict of law made by both governments, that the law made by the central government is supreme and will super cede that of the regional/ State government.[27]

 

Residual List

 

These are the leftover power not included in either the exclusive or the concurrent list. The powers in the residual List are left for the regions/states. In some constitution, residual powers are exercised by both governments. Such matter in the residual list includes chieftaincy matters etc.[28] In some jurisdictions like the USA, there is also the implied power of the federal Legislature.

 

The Implied Power Doctrine

 

In America, almost immediately upon the beginning of the federal government an argument arose between the strict constructionists of the constitution and the loose constructionists. Alexander Hamitton wanted to establish government-owned bank. The strict constructionists led by Thomas Jefferson said that this was unconstitutional. The national government, possessed enumerated powers only, and establishing a bank was not one of them. The board constructionist contended that the national government could exercise the enumerated powers, into effect.[29]

 

The argument was by all odds the most important theoretical issue debated on the national scheme for thirty years after the founding of the government. The Supreme Court ruled upon it in 1819, in the important case of Mccullock V Maryland[30]. The court said in part, “Let the end be... within the Scope of the constitution and all means which are appropriate, which are plainly adapted to that end and which are not prohibited... are constitutional.[31]

 

The court said that the national government has not only enumerated powers but also powers which may be reasonably implied therefrom. The doctrine of implied power of the congress in America has been of major importance in expanding constitutionally the powers of the federal government. Possey, commenting on the implied power said, “Congress is not a legislative body with broad, vague powers, its powers are limited. Congress is told what powers it may exercise in section 8 article 1 of the constitution. Among the more important powers of the congress are its taxing power, regulation of interstate and foreign commerce, coinage of money, operation of the post office department, protection of patents as copyrights, maintenance of an army and a navy and declaring war.”[32]

 

On the implied power, he said, “matching the list of delighted powers is another List of powers which the constitution has specifically withheld from congress. Many of these are contained in section 8 of Article 1. But what of the powers neither expressly granted nor prohibited? Some powers in between the two categories may be exercised by the Congress. As detailed above in Mccullock V Maryland[33] the supreme court said, “Let the end... be within the scope of the constitution, and all means… plainly adapted to that end, which are not prohibited… are constitutional.” Thus, this paper argues that congress is not confined to the powers named in the constitution. Congress may also exercise powers which may be reasonably implied from the enumerated powers.[34]

 

Inherent Power of Congress

 

Further to implied powers of the American Congress is the inherent powers espoused in the United States v Curtiss- Wright Export Corporation.[35] The Supreme Court allowed the concept of enumerated and implied powers to stay only in respect to Internal Affairs of the nation. Then power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties[36], if they had never been mentioned in the constitution, would have vested in the federal Government as necessary concomitants of nationality. Thus, in the field of foreign relations, the powers of the national government are inherent and are not limited.[37]

 

It is gratifying to note that the doctrine of implied and inherent powers may not be applicable to the Nigerian situation because the Constitution of Nigeria is more detailed that it enumerated exhaustively the powers of the National Assembly and states Houses of Assembly both in the exclusive and concurrent legislative lists. The only area of conflict between the National and State legislature is the exact limit and scope of residual power which contains everything not included in exclusive or concurrent legislative list. Instead of inherent power being given to the National Assembly in Nigeria, it is the Court that is giving that power.

 

Relevance and Essence of Inherent Power of Court

 

The inherent power of any court is the power which is itself essential to the very existence of the court as an institution and to its ability to function as such institution, namely, as an institution charged with the dispensation of justice. An inherent power must be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a court, and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of the court cannot be taken away or abridged by legislation, for he who gave, he only can take away.[38]

 

Whether a Court can exist without Inherent Powers

 

A court cannot exist without inherent powers. The word ‘court’ importing adjudicatory capabilities in the entity to which it is applied at once conjures up the notion of inherent powers. That is the power to fulfil itself as the entity denoted by that word. A court must have some in-born power to act as a court and enable it to function as a court. A court without inherent powers can only be likened to a very good-looking wheel on a car that has no ball bearings or grease in the hub. Such a contraction may look but can never function properly as a wheel.[39]

 

Nature of Inherent Power of Court and whether Statutory Power can detract or derogate from it

 

Where legislation dealing with an inherent power of court exists, it is no longer an inherent power because it henceforth becomes a statutory power or constitutional power. Statutory power does not detract or derogate from or abridges the inherent power of a court. This is because it is inherent. A court exercising any such power exercises a statutory power or constitutional power only.[40]

 

Incidental and Supplementary Power

 

Incidental is defined as happening or existing in connection with something else that is more important or subordinate to something of greater importance, having a minor role to play.[41]

 

The Constitution makes provisions for incidental and supplementary power of the National Assembly in Nigeria.[42] Supplementary means in addition to already existing thing. The Schedule provides that:

 

Where by this schedule the National Assembly is required to designate any matter or thing or to make any declaration, it may do so either by an Act of the National Assembly or by a resolution passed by both Houses of the National Assembly.[43]

 

In this Schedule, references to incidental or supplementary matters include, without prejudice to their generality, references to[44]

 

Offences;

The jurisdiction, powers, practice and procedure of Courts of Law; and

The acquisition and tenure of land.[45]

 

It is not clear whether the National Assembly can now legislate by resolution rather than go through all the processes of law making with reference to when it is required to designate any matter. There are not many areas within the constitution where it is not specifically if an Act of the National Assembly is required, thus, this section will not affect important issues. But subsection 2[46], which lists certain specific incidental and supplementary matters, cannot be regarded as comprehensive. It has already been decided in another context admittedly that the use of the word `include’ implies the possibility of other matters.[47] This Schedule also empowers the National Assembly to make law by resolution or to make binding resolutions on persons and authorities in Nigeria.[48]

 

Residual Power in Nigerian Context

 

Nigeria operates a federal system of government. In it, power is shared among the three tiers of government, namely, federal, states and the local government areas. The Constitution provides for the roles of each of the federating states. In the Second Schedule of the 1999 Constitution, the federal government handles matter under the exclusive legislative list, shares roles with the federating states in concurrent list while states take care of matters under the residual list.[49] The question on the lips of stakeholders is: does the National Assembly now have the power to legislate on a matter that is under the residual list?

 

The Supreme Court in suit number SC. 340/2010 between the Attorney General of the Federation and Minister of Justice and Attorney General of Lagos and Commissioner for Justice had declared that the Federal Government lacks the Constitutional powers to make laws outside its legislative-competence, which are by implication residual matters meant for the State Assembly.[50]

 

The apex court says the National Assembly cannot, in the, exercise of its powers to enact laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters, which ought to be the responsibility of State Government or its agencies.[51] The apex court, following the conflict between the federal government and Lagos State over registration of hotels and tourism establishments, evinced the argument about legality of such action.[52]

 

By virtue of the Nigerian Tourism Development Corporation Act 1992, the Nigerian Tourism Development Corporation (NTDC) whose functions were to register, classify, grade and regulate Hotels, Motels, Hospitality and tourism enterprises, and tour operators was created.[53] But in 2003, the Lagos State Government passed into law the Hotel Licencing Law Cap H6 Laws of Lagos State of Nigeria 2003, which conflicted with the mandate of the Nigerian Tourism Development Corporation Act.

 

In 2009, the Lagos State Government published a public notice that registration of hotels and tourism related establishments in Lagos State was the exclusive responsibility of the Lagos State Ministry of Tourism and intergovernmental relations. The law was subsequently amended by the Hotel Licensing (Amendment) Law, the Lagos State of Nigeria Official Gazette dated 20th July 2010.[54] Based on the foregoing, NTDC issued a public notice advising all operators of hotels, and companies alike to disregard the earlier notice issued by the Lagos State Government.

 

In this regard, the AGF on behalf of the Federal Government commenced an action at the Supreme Court against Lagos AG, by way of originating Summons challenging the validity of the laws enacted by the House of Assembly of Lagos State.[55] However, the Supreme Court ruled in favour of Lagos and held that the Law promulgated by Lagos State was not among items in the Exclusive and Concurrent lists but was rather among residual matters of the State.[56] Interestingly, a bill is now pending before the National Assembly called the Nigeria Tourism Development Authority (NTDA) ACT CAP N 137 LFN, 2004 9 (Repeal and Enactment) Bill, 2017 (SB. 429).[57] The Bill has gone through public hearing and is allegedly being pushed by NTDC.[58] Stakeholders and lawyers said the move is inappropriate. The executive secretary, Nigerian Hotel and catering institute (NHCI), Victor Kayode said the bill if enacted into law is vexatious and un-implementable.[59]

 

According to him, the proposed bill seeks to establish a new organization, which is beyond NTDC mandate as a government agency. Only the parent Ministry, he stated, could seek approval from the Executive council to establish a corporation within a corporation and seek legislative enactment, “It is also unclear, whether we are dealing with Tourism Development Corporation (NTC), Nigerian Tourism Development Corporation (NTDC) or Tourism Development Authority (NDA) as there are different documents speaking different things about the same bill,” he said that Section 15c of the bill seeks to regulate hotels and tourism, which will be indirect conflict with the Supreme Court judgement if passed.[60] It must be stressed here that National Assembly can make this law the Constitution must be amended which is not necessary, because of the already overbearing power of the federal government.

 

Federalism and the Technique of ‘Listing’ as Catalysts for Constitutional Adjudication

 

According to Nweze,[61] the concept of federalism, though enveloped in a web of controversies,[62] is, unarguably, one of the principles which make up the doctrinal and philosophical pivot of constitutional Jurisprudence.[63] Indeed, it is not amenable to any precise definition, so much so that most leading constitutional Law scholars have opted for a description, rather than a definition,[64] of its essential principles.[65] Since, so much scholastic ink has been expended on them,[66] the elucidation of these principles does not need to detain us here.

 

For this reason, our presentation will only venture a dissertation on an aspect of the concept of federalism, namely, the technique of division of powers between the Central Government and the federating units.[67] Our preoccupation in this presentation, therefore, will be to explore the extent to which this technique has been employed in the Constitution of the Federal Republic of Nigeria, 1999.[68] The presentation will, also, probe into the scheme evolved by the 1999 Constitution for abridging the frontiers of conflict. This is the philosophy of “Pragmatic Federalism”[69] which Bello, CJN, admirably captured in Attorney General of Bean State v. Attorney General of the Federation and Ors[70] thus:

 

It may be observed that although the framers of our Constitution enshrined therein the principles of division of powers between the Federation and the component states, they realised that absolute division of such powers would not achieve the purpose of the Constitution which is to promote the good governance and welfare of all persons in our country it seems to me the framers appreciated that mutual c-operation reciprocity and inter dependence between the Federal and state governments are essential in the promotion of  the laudable purpose of the Constitution.

 

In effect, the purport of this philosophy of the Law of federalism is that there is no clear and clean border or bifurcation between the Federal and State Governments in the field of cooperation and assistance flowing from the Federal Government to the State Governments.[71]

 

Dichotomy in Legislative Jurisdictions: An Overview

 

There is a striking convergence of juristic[72] and juridical[73] opinions to the effect that the evolution of the technique of dichotomy in legislative jurisdictions[74] between the Exclusive and Concurrent lists, which first featured in the 1954 Constitution[75], is a contrivance of Australian Constitutional jurisprudence. Although, scholars would appear to be unanimous that the evolution of this technique is for avoidance of conflicts,[76] the paradox of the Nigerian experience is that rather than fostering conflict avoidance, the technique of Legislative Lists has considerably catalysed what Professor Smithey has graphically described as the “Judicialisation of politics,” which occurs “when societal decision-making becomes more judicially oriented.”[77]

 

The 1999 Constitution adopts two approaches in specifying the powers of the Federation. First, it adopts a specific textual inclusion of certain matters in the Constitution.[78] Secondly, it perpetuates the technique of enumeration of powers in two legislative lists, the Exclusive legislative list[79] and Concurrent legislative list.[80] The epistemological context of the adjectival form “concurrent” must be clearly borne in mind here. The Supreme Court has endorsed, as correct, the definition of the word “concurrent” as “existing together.”[81] The court has equally approved the view that in the context of the Constitution, when a matter is said to be concurrent to the Federal and State Governments, it means that their powers in that respect exist side by side.

 

That, in effect, means that the powers of both governments in respect of the matter are co-existent, not mutually exclusive; the power of one does not exclude that of the other. Both governments can, in theory at least, act on the matter. However, their powers need not, necessarily, be co-extensive in the sense of extending over the entire field of the matter; they may co-exist only in respect of some aspects of it.[82]

The Exclusive legislative list[83] specifies 66 items. Item 67 is a provision incorporating reference to the matters provided for in the body of the Constitution. The last item, item 68, deals with “any matter incidental or supplementary, to any matter mentioned elsewhere in the list.”[84]

 

Paragraph 2, part, III of the second schedule is instructive as it elaborates on the “scope of incidental and supplemental matters.”[85] It provides that:

 

In this schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to:

               (a.)            offences;

               (b.)            the jurisdiction, powers, practice and procedure of courts of law: and

                (c.)            the acquisition and tenure of land.

 

Although, the “impressive specificity” of the above list has been noted,[86] there was a demurrer[87] to the retention of the equivalent of item 67 which provides:

 

Any other matter with respect to which the National Assembly has power to make law in accordance with the provisions of this Constitution.

 

Voicing his opposition to item 70, Part 1 of the Second Schedule of the Draft Constitution, 1976/77, in pari materia with the above item, Dr. B. A. Adebisi contended that this provision:

 

leaves room for the emergence of an ubiquitous Federal Government which might spread itself too thing to be effective.[88]

 

He further deposed that this:

 

undesirable item... on the list robs the Nation of the main advantage which nominally accrues from the single exclusive list system, namely, clarity of legislative jurisdiction.[89]

 

Indeed, the question of the clarity of legislative jurisdictions in item 68 of the 1999 Constitution has, considerably, tasked two eminent panels of the Supreme Court. In Federal Republic of Nigeria v. Anache and Ors,[90] one of the questions referred to the Supreme Court was:

 

Whether the combined effect, of the provisions of sections 4 (2), 15 (5), items 60 (a) and 68 in part 1 of the second schedule and section 2 (a) of part [II of the Second schedule of the Constitution. of the Federal Republic of Nigeria, 1999, confer powers on the National Assembly to make Laws for the peace, order, and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power?[91]

 

Tobi JSC, speaking for the full court, answered in the affirmative. Uwaifo JSC also thought that since in the Ondo[92] case items 60 (a), 67 and 68 of part I of the second schedule and paragraph 2 (a) of part II of the second schedule to the 1999 Constitution were also there [was] nothing more to be said in respect of question 1.[93]

 

Now, in A G Undo v. A. G. Federation,[94] the same question of the clarity of legislative jurisdiction in item 68 had been vigorously canvassed before the court By an originating summons at the Supreme Court, for adjudication in its original jurisdiction, the plaintiff sued the first defendant the Attorney General of the Federation. It joined the other defendants as parties whose rights may be affected by the action. The following relief, inter alia was asked for:

 

A determination of the question whether or not the Corrupt Practices and other Related Offences Act, 2000 is valid and in force as a Law enacted by the National Assembly and in force in every state of the Federal Republic of Nigeria (including Ondo State).[95]

 

Part of the contention of the plaintiff was that the Act was not in respect of a matter or matters either in the Exclusive legislative list or the Concurrent legislative list. In resolving the conflict, the Supreme Court conflated several provisions of the Constitution, including item 68 of the Exclusive legislative list in part 1 of the second schedule to the 1999 Constitution which lists the Exclusive legislative powers to include “Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”[96]

 

Arguments were canvassed by those in support of the Act that the National Assembly was empowered to enact it, by virtue of sections 4 (1), (2) and (3), relying on items 60 (a), 67 and 68 of the Exclusive list and paragraph 2 (a) of part III of the second schedule to the Constitution.[97] The court, held, inter alia, that the provisions of section 2 (a) of part III of the second schedule to the Constitution was enacted to expound the effect and the extent of the provision of item 68 of part 1 of the second schedule. According to the court, it is by that provision that offences may be enacted by the National Assembly if it is shown that such offences, as may be created, are incidental and supplementary to matters on which the National Assembly is vested with power to make laws.[98] Listen to Ogwuegbu JSC:

 

Item 68 is contained in the Exclusive legislative list. The reference to incidental and supplementary matters on the Exclusive legislative list underscores the well-established principle of law that every grant of power includes by implication all and other powers as are reasonably incidental thereto and not expressly excluded.[99]

 

The net effect of it all is that Dr. B. A. Adebisi's postulations underestimated the vigilance of the guardian of the Constitution, namely, the judiciary.[100] Thus, there is authority for the, Proposition that since “the legislative powers of the National Assembly being derivable from the Constitution are thus delimited by the provisions of the Constitution.”[101] This is the import of the decision in Attorney General of Bendel State v. Attorney General of the Federation.[102]

 

More specifically, contrary to his fear that “an ubiquitous Federal Government” was bound to emerge, a survey of judicial pronouncements on the 1979 Constitution[103] reveals that the judiciary, upheld the supremacy of that Constitution. Hence, all efforts were made to tie legislative Dower to the legislative lists. In the words of Nnaemeka Agu, JSC in Military Governor of Ondo State v. Adewunmi:[104] “whereas the legislative powers of the Federal Government were under 1979 Constitution tied to the legislative lists (they were also) limited thereby…”[105]

 

The impregnable mandate of the judiciary in this regard derived from express constitutional empowerment. In this connection, it must be reiterated that the exercise of legislative powers was made subject to Judicial review.[106] More dramatically, it was constitutionally ordained that legislation purporting to oust the court's jurisdiction was not to be brooked.[107] Indeed, the Legislature was not only bound by the express limitations in the legislative lists the circumstances and procedure for enacting laws prescribed by the Constitution were to be obeyed. Thus, the litmus test for the validity of any law was set as the extent of its compliance with the constitutional provision for doing so.[108] In addition to procedural questions, legislation that were so manifestly and flagrantly ambitious that they were tantamount to a usurpation of executive functions were struck down as being unconstitutional.[109]

 

It is perhaps, appropriate to revisit an awkward development that reared its head under the 1979 Constitution. Whereas that Constitution (and in deed the 1999 Constitution) preserved the ‘inherent powers’ of the courts of law,[110] no such inherent powers were conceded to the Legislature and the Executive. The true position, therefore, under the 1979 Constitution was that powers exercised must be founded on a provision of the Constitution or on legislation founded on the Constitution.[111] Alas, certain Governors elected under that Constitution invented and purported to exercise inherent powers, neither derived from any constitutional warrant nor anchored on any legislative fiat. In a series of forensic contests, the courts greeted such exercise of power with unmistakable disapprobation. The instances are legion. Only a highlight is attempted here.

 

In Jideonwo & Ors v. Governor of Bendel State & Ors[112] the court struck down the exercise of the purported inherent power in the Governor, neither derived from the Constitution nor from Statute to suspend an elected local government council, remove its members, and revoke the appointment of the Chairman. In Orisakwe v. Governor of Imo State,[113] the court rejected the claim to exercise an inherent power to withdraw recognition from a traditional ruler without legal authority and without complying with the prescribed procedure under the law. The decision in Jideonwo v. Governor of Bendel State (supra) established the principle that neither the President nor a Governor could appoint a Minister of Commission without complying with the constitutional provision for such appointment. Where the Constitution has not created an office, it would be unconstitutional for either the President or a Governor to create such an office and attempt to invest it with constitutional imprimatur.[114]

 

The story is even more heart-warming under the 1999 Constitution. In what evidently must rank as the most eloquent vindication of Smithey’s theory of “judicialisation of politics,” or in other words, the relevance of the judiciary in the shaping of politics,[115] the courts, particularly, the Supreme Court, have gallantly intervened in conflicts precipitated by divergent perceptions of the roles of different tiers of government under the legislative lists of the Constitution The list of cases is long.[116] Take the following examples:

 

In INEC v. Musa[117] the respondents, political associations, and other political associations, sought to be recognised as political parties as defined in the 1999 Constitution. Each of the respondents, along with the twenty-two other political associations, who were all plaintiffs at the trial court, applied to the first appellant for registration as political parties.

 

The National Assembly had enacted the Electoral Act, 2001[118], which prescribed the mode of the registration of political parties. Pursuant to the said Electoral Act, the first appellant issued guidelines for political associations wishing to be transformed into political parties. A time table for the registration or the recognition of political associations as political parties was also published. The respondents challenged these processes. The reaction of the Supreme Court, on appeal is very germane here. Listen to this:

 

Section 1 (1) of the Constitution provides for the supremacy of the Constitution. By section 1 (3), if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of the inconsistency, be void. In the total package of the supremacy of the Constitution in this appeal are mainly sections 40 and 222. The provisions of chapter IV, in which section 40 is a part, are sacrosanct. The procedure for the amendment of the chapter is tedious and difficult as spelt out in section 9 (3) of the Constitution. Since section 40 vests in every person the right to freely associate with other persons and belong to any political party, an Act of the National Assembly or a guideline of the first appellant ambitiously trying to take away the rights guaranteed in the section cannot stand. The same applies to section 222. Since that section has provided for six conditions for a political association to be recognised or registered by the first appellant as a political party, neither National Assembly nor the first appellant can now enact any Act or make guidelines respectively detracting from the provision of section 222.[119]

 

This was how the apex court widened the canvass of the soapbox to accommodate more political gladiators. This Singular decision triggered off the registration of more political parties, bringing the total number of registered parties, at the time, to about thirty, perhaps, the largest in the continent of Africa! It cannot be otherwise for:

 

Plural democracy is enhanced by the opportunity for as many parties as satisfy the legal and constitutional requirements to contest elections… what is required is to have more players on the political scene to expand the scope for political expression.[120]

 

This editorial opinion by the flagship of the Nigerian Press[121] was an affirmation that the judgement of the apex court was an invaluable building block in the political architecture of our fledgling democracy.

By some curious irony, the Electoral Act, though impugned as having “provided a model of an Act which qualifies for, but excels, in contravening the Constitution”[122] will always be remembered as one Act of the National Assembly that fecundated the resolution of the several breath-taking constitutional questions.

 

One of such questions was the cassus belli in A.G. Abia v. A. G. Federation[123]. The plaintiffs, the Governments of all thirty-six states of the Federation of Nigeria, sued the Attorney General of the Federation, claiming inter alia a declaration that no law enacted by the National Assembly could validly increase or, otherwise, alter the tenure of office of elected officers or Councillors of Local Government Councils in Nigeria except in relation to the Federal Capital Territory alone.

 

The National Assembly enacted the Electoral Act, 2001. The Federal Government claimed to have acted in the belief that all the provisions contained in the Act were on matters with respect to Mirth the National Assembly was empowered to legislate for the peace, order and good government of the country.

The plaintiff’s case[124] was that a perusal of the provisions of the Act would reveal that they transgressed the legislative competence of the Federal Government; that the Act made serious incursions into the legislative and executive functions of the states.

The contention of the plaintiffs was that pursuant to section 4 (7) (a) of the 1999 Constitution, the House of Assembly of a state is empowered to make laws with respect to any matter not included in the Exclusive Legislative List. They further argued that subject to the powers conferred on the National Assembly by the provisions contained in the Concurrent Legislative List, all remaining or residual powers with respect to Local Government Councils are, subject to the Constitution, vested in a House of Assembly alone.[125]

 

The implication of these arguments is that it is states that must be responsible for the tenure of members of the Local Government Councils. In consequence, only the House of Assembly alone has the power to prescribe, increase or otherwise alter the tenure of the elected officers or councillors of the Local Governments other than the Federal Capital Territory for which only the National Assembly could legislate. Now, the volatility of the situation at the time must be viewed from the context of the sociology of Nigerian Politics. The 1999 Constitution consecrated seven hundred and seventy-four Local Government Councils. That meant that the interests of seven hundred and seventy-four Chairmen, their Wives, descendants, and sundry political protégées were at stake!

 

When to these were added the countless members of Councillors in these Local Government Councils, the anxiety the Electoral Act generated could be appreciated. This was more so, when what Professor Richard Joseph calls “Prerenal Politics”[126] had become the mainstay of political jobbery! The Supreme Court found for the plaintiffs.[127] It was, indeed, a finding in favour of consolidating the democratic temperament after several years of military rule. Coming 818 days into the fourth experiment in democracy, the judgement successfully doused the palpable tension that had enveloped the arena of politics. As if to allay the fears of the vast array of elected functionaries in the Local Government Councils, the court declared ex cathedra:

 

The National Assembly has no power whatsoever under item 11 of the Concurrent Legislature List or indeed under any provision of the Constitution, to increase or alter the tenure of the elected Local Government Councils. Only the House of Assembly of a State has such power.[128]

 

These authoritative and weighty words emanating from the apex court were not lost on the addressees. The pronouncement was a psychological tonic for most politicians who were already securely twined by fear and anxiety! Just like most of the other decisions, this decision will always stand the apex court in good stead in the judgement of posterity! Indeed, a leading newspaper in Nigeria has already declared the Supreme Court the "peoples’ court.”[129]

The decision in A.G. Lagos State v. A.G. Federation & Ors[130] is remarkable for the fecundity of jurisprudential issues that flourished in it. The issues, inter alia, were:

 

Whether urban and regional planning (or town planning) as well as the regulation of physical development in relation to any land in Lagos State are within the legislative and executive jurisdiction of the Federal Government.

 

Whether Nigerian Urban and Regional Planning and Act (Decree No. 88) of 1992 is inconsistent with the provisions of section 4 of the 1999 Constitution and, therefore, unlawful, null and void and so on.[131]

 

The Supreme Court held inter alia that since the subject of town and regional planning is not in the Exclusive and Concurrent Legislative list of the 1999 Constitution, it is a residual matter.[132] Thus, only states could legislate on it. Section 20 of the 1999 Constitution, which the first defendant relied on in this case as enabling the National Assembly to enact a law on urban and regional planning, such as the Nigerian Urban and Regional Planning Act, to have effect throughout Nigeria, must be confined to pure matters of environment and not by extension to matters of pure town and regional planning. However, by virtue of sections 4 (4) (b) and 299 of the 1999 Constitution, the subject of town and regional planning, as far as the Federal Capital Territory IS concerned, is the residual matter for the National Assembly.[133]

 

Technique of Defining Concurrent Powers

 

An orthodox concurrent list itemises subject matters on which both the Central and State Governments are entitled to make laws simultaneously.[134] The 1999 Constitution departs from this technique. It instead, evolves a peculiar kind of concurrent list. There are at least four different techniques that are evident in the concurrent list adopted by the Constitution. In the first place, there is the technique of “mutually exclusive list”[135] in the concurrent list. Mutually exclusive legislative powers are vested in the Federal and State Governments within the concurrent list.[136] In all, there were twelve items in the concurrent list, however, the actual elaboration of these Items spans 30 paragraphs. Now, the techniques:

 

Mutually Exclusive Legislative Powers

 

The first instance is item A on Allocation of revenue. This item vests the National Assembly with the legislative power to make provisions for:

 

(a)      the division of public revenue

                                              i.            between the federation and the states

                                             ii.            among the states of the Federation.[137]

 

On the other hand, by item A, legislative powers are vested on a State House of Assembly to:

 

make provisions for grants or loans from and the imposition of charges upon any of the public funds of that state or the imposition of charges upon the revenue and assets of that state...[138]

The effect of this provision can be better appreciated in the context of the following submission, which we subscribe to; that is to say:

 

...the authority of the state government can be interpreted as exclusive authority over a limited scope of the topic of national revenue, the state revenue being seen as merely a limited aspect part of the total subject matter of national revenue.[139]

 

Another illustrative example of this technique of mutually exclusive list in the concurrent list is the item on University, technology and post primary education. Here, the National Assembly is empowered to make laws for:

 

The Federation or any part thereof with respect to University education, technological education or such professional education as may from time to time be designated by the National Assembly.

 

The power conferred above includes the “power to establish an institution for the purposes of University, post primary, technology or professional education.”[140] On its part, a State House of Assembly is vested with power to make laws for the state with respect to the establishment of an institution for purposes of University, technological or professional education.[141] Elaborating on the implication of this power sharing formula, Professor B. O. Nwabueze has pointed out that:

 

...the federal government has competence over the whole field of University, technological and professional education, including the establishment of institutions for the purpose, while the state governments may only establish institutions for University, professional or technological education.[142]

 

Exercising competence over the whole field of University education, for instance, implies that only the Federal Government, to the exclusion of the state governments, can make regulations relating to standards, mode of admissions, such questions like free education at the University level and so on.[143] As opposed to a typical concurrent list where the doctrine of covering the field applies in all its amplitude, the technique of mutually exclusive list is an obvious advantage in the reduction of legislative conflicts between the state and federal legislation on the same subject matter.[144]

 

Conditional Powers

 

The Concurrent list also employs the technique of power-sharing through the provision of conditional powers. The legislative devise used for this technique is the phrase “subject to”[145] In item C, paragraph 4 empowers the National Assembly to make laws for the Federation or any part thereof with respect to the archives and public records of the Federation. On the other hand, the power of the House of Assembly to make laws for the state or any part thereof with respect to archives and public records of the Government of the state is made subject to paragraph 4 above.[146]

 

In effect, the draftsman intended to subordinate the exercise of legislative power by a State House of Assembly to the exercise of legislative power by the National Assembly on the subject of archives and public records of the Federation. In other words, the breadth of exercise of power by the House of Assembly is to be determined by the provisions of paragraph 4. This is the net effect of the expression “subject to” in paragraph 5. The words “subject to” are words of art. In Tukur v. Government of Gongola State[147] Nnaemeka-Agu, JSC explained that:

 

Whenever the expression (subject to) is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is ‘subject to’ shall govern, control and prevail over what follows in that section or subsection of the enactment.[148]

 

This paper argues that this dictum applies to the interpretation of paragraph 5 notwithstanding that the expression “subject to” is not used at the commencement of the section. In the latter case of Idehen v. Idehen,[149] Karibi-Whyte, JSC stated that:

 

The phrase (subject to) has been constructed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to.[150]

 

The above interpretation applies with equal force to such items like item K. The National Assembly is empowered to make laws for the Federation or any part thereof with respect to trigonometrical, cadastral and topographical surveys. The power of a House of Assembly to make laws for a state, or any part thereof, with respect to trigonometrical, Cadastral and topographical surveys is expressly made subject to the power of the National Assembly to make laws over the subject matter.[151]

 

Technique of Action or In-Action

 

Another type of conditional authority which was associated with the 1979 Constitution: Where the power of one tier is made subject to the action or in-action of the other tier with regard to the legislative topic where there is seeming concurrence of authority[152] has also been perpetuated by the Concurrent list of the 1999 Constitution. Hence, with respect to the generation, transmission and distribution of electricity, the authority of a State House of Assembly can only be exercised in “areas not covered by a National grid system within that state”.[153] Now, in the first place, it is the exclusive authority of the National Assembly to make laws for “the promotion and establishment of a national grid.”[154] In this regard, it is the action or inaction of the National Assembly in promoting and establishing a national grid that dictates the extent of exercise of legislative power by a State House of Assembly.[155]

 

Exclusive and Residual Dichotomy in the Concurrent List

 

Like the 1979 Constitution, the Concurrent list in the 1999 Constitution employs the ‘Exclusive and residual' dichotomy within individual topical provisions.[156] This is achieved by circumscribing the authority of the National Assembly to exclusive subject matters, “leaving the residual powers on such topic to the state”.[157] Item J dealing with statistics clearly illustrates this technique. Here, the power invested on the National Assembly to exclusively legislate on statistics must relate to “any matter upon which the National Assembly has power to make law”.[158] The residual powers on the subject of “statistics” are conceded to the State House of Assembly in these words, to make laws for the state with respect to statistics and on any matter other than that referred to in paragraph 23 of this item.[159] A hint on the operation of this technique was also given in A. G. Lagos State v. A. G. Federation.[160] There, it was held that by section 4 (4) (a) of the 1999 Constitution, the National Assembly has powers to legislate on matters on any item in the Concurrent Legislative list as set out in the first column of part II of the second schedule to the Constitution to the extent prescribed in the second column.

 

Since under the items listed in the columns, there is no mention of urban and regional planning or physical development or control of land therein, it means that the National Assembly has no jurisdiction in this matter under the concurrent legislative list. It is, therefore, a residual matter for the states.[161] Knight Frank and Rutley (Nig) and Anor v. A. G. (Kano),[162] equally, gives a clue to this technique. The issue there was whether the Kano State Government acted ultra vires in entering into contract with the appellant to prepare a valuation list of rateable hereditaments in the municipal area of Kano. By a written agreement between the then Commissioner for Finance, Kano State, and the appellants, the latter were to prepare a valuation list of rateable hereditaments for the collection or property rates in certain parts of Kano State. Later, the Commissioner intimated the appellants of Government's intentions to rescind the contract. The reason for this action was that the valuation of hereditaments fell within the responsibility of Local Government of the state and not the State Government. The appellant then sued.[163]

 

The Supreme Court had the onerous responsibility of giving meaning to the near laconic provisions of the Constitution defining the functions of the Local Government. The court construed section 7 (5) and paragraph 1 (b) and (j) of the Fourth Schedule to the 1979 Constitution. It, insightfully, concluded, from this combined reading of these provisions, that the collection of rates on rateable hereditaments and the assessment of rates on privately owned houses were subjects within the responsibilities of Local Government Councils. Accordingly, it held that it was the Local Government of Kano State that possessed the power to assess, impose and collect rates on privately owned property. The conclusion is worth quoting in extension for the guidance of the appropriate authorities: There is no legislation which empowers Kano State Government to dabble in and interfere with the compilation of valuation list for the purpose of assessing or collecting rates on private properties in Kano State. Therefore, the Government acted ultra vires in entering into contract with the appellant to do what only the Local Government Councils were entitled to do under the constitution and the law.[164]

 

Conclusion

 

We have examined the distribution of legislative powers within Nigerian federation and observed that the Exclusive Legislative List is for the National Assembly while states and National Assembly can legislate on concurrent legislative list. The residual list which is not expressly stated in the Constitution is by convention reserved for the states. The list contains all matters not included in either the Exclusive or Concurrent Legislative list. It is equally observed that in Nigeria the National Assembly and the States’ Houses of Assembly have been having conflicts on legislation because either of them has been overstepping its legislative jurisdiction. The other very important issue noted in this paper is that the doctrine of implied and inherent powers of the National Assembly is not recognised in Nigeria although it is part and parcel of American Congress. Our observation is that the doctrine is in conflict with the residual power of states and will lead to further legislative conflicts between the states and National Assembly.

 

We must also stress that the doctrine of implied and inherent powers of Congress in America and the incidental and Supplementary matter in Nigerian Constitution are not the same. The purported attempt to make another NTDC (Nigerian Tourism Development Corporation) or NTA (Nigerian Tourism Authority) law without amending the constitution will be a futile exercise. The constitution must first be amended to increase the power of the National Assembly to cover hospitality and tourism before such a law can be validly make by the National Assembly. However, in view of the clamour for devolution of power in Nigeria, it is not advisable for the constitution to be amended to give more power to the centre. Rather, power should be dispersed or devolved on the states for a stable polity, and for states to have more power to generate revenue for sustenance and provision of infrastructure.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

International Treaties and Conventions

Article 1 Section 8 (18) of 1789 Constitution of America as Amended

Item 3B of Second Schedule.

 

Local Cases

AD v. P.S.I.E.C (2004) 10 NWLR (pt 880) 19,34, 45

A.G. Bendel State v. Omonuwa (1982) 3 NCLR 472, 476; see, generally, A.G. Karibi-Whyte, op. cit 82

A.G. federation v. A.G. Abia (No. 2)(2000) 6 NWLR(pt 764) 542

A.G. Lagos v. A.G. Federation (2003) 12 NWLR (pt 833) 1;

A.G. Federation (2002) 9 NWLR (pt 972) 222;

A.G. Ogun v. A.G. Federation (2002) 18 NWLR (pt 798) 232

Attorney General of federation v Attorney General of Lagos state 2013 16 NWLR (pt 1380) 249

Attorney General of Lagos State v Attorney General of federation 2013 No NWLR (pt 1300) 383

Ojibara v. Governor of Kwara State (2004) 30 WRN 26, 60-61

Olafisoye v. FRN (2004) 4 NWLR (pt 864) 580, 646-649

Per Tobi JSC in A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1,246

K.C.Wheare, “Federalism”, in International Encyclopaedia of Social Sciences (1968) vol. p. 33, see,

Sobel Mogi, “The Problem of Federalism”, Williams Livingstone, “A Note on the Nature of federalism”,

Trade Employer’s cases Federation v Whybrow (1914) 10 CLR 266

Taiwo Osipitan, “InterGovernmental Relations and the 1989 Constitution: Problems & Prospect”, in (1990) Jus Vol. 1 No. 2 p. 27 at p. 28 fn 12

See per Fatayi-Williams, CJN in A.G, Ogun State v. A.G. federation (1982) 2 FRN 4, 14

Per Fatayi-Williams CJN in A.G. Bendel State v. A.G. of the federation (981) 10 SC 1 at p. 33.

 

Nigerian Domestic Law

1999 Constitution of Nigeria as Amended

Electoral Act 2001 now amended as Electoral Act 2010.

 

Books

Abiola Ojo, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers Nigeria Publishers Limited, 1987) 152;

B.O. Nwabueze, The Presidential Constitution of Nigeria op. cit., 53.

C. Otakpor, “Assessing Democracy via Litigation” Book Review, in New Age (Lagos), Tues. Oct. 26, 2004, 33

R.A. Joseph, Democracy and Prebendal Politics in Nigeria: The rise and fall of the Second Republic (Ibadan: Spectrum Books Ltd, 1991, 1999) 8

The Challenge of the Nigerian Nation: An Examination of its legal Development 1960-1985 (Lagos: Heineman Educational Books Nigeria, Limited, 1985) p. 21;

Towards the Stability of the Third Republic (Enugu: Fourth Dimension Pub. Co. Ltd., 1993) 154, 155.

 

Edited books

B.Adebisi, “State Autonomy an financial development” in W.I.Ofonagoro et al (eds)

E.S. Nwauche and f.I. Asogwa, (eds) Essays in Honour of Professor C.O. Okonkwo (SAN) (Port Harcourt: Jite Books, 2000) 221

Jadesola Akande, “Constitutional Developments”, in T.A. Aguda (ed)

Mackinson, (ed) Canadian federalism: Myth or Reality, p. 22,

O. Orojo, “Intra-Governmental Relations under the Nigerian Constitution,” in I.A. Umezuike (ed)

Sobel Mogi, “The Problem of Federalism”, Williams Livingstone, “A Note on the Nature of federalism”, in Mackinson, (ed).

 

Journal Articles

B.A. Susu, “Techniques of Power-sharing and the Concurrent List,” in (1992)JUS vol. 3 Nos. 4 & 5 p. 25;

C.C. Nweze Constitutional Adjudication for Democratic Consolidation in Nigeria: The role of the Supreme Court being a paper delivered at 16th Justice Idigbe memorial lecture at faculty of law University of Benin on 8th November 2017

Taiwo Osipitan, “InterGovernmental Relations and the 1989 Constitution: Problems & Prospect”, in (1990) Jus Vol. 1 No. 2 p. 27 at p. 28 fn 12

D.I.O. Ewelukwa, “The doctrine of covering the field”, in Nig. J.R. vol. 2 (1999) 30.

 

Internet and News Sources

The Supreme Court Judgement on Hotel Licensing Regulation PWC Nigeria.typed.com>2013/7>the… accessed on 20-3-18

Why federal Government can’t legislate on Hotels, Restaurant thenationonlineng.net>fed-gov-cant-le… accessed on 20-3-18

Nigerian Tourism Development Corporation Bill: A Tide that carries only monetary waves African traveltimes.com>features accessed on 20-3-18

Joseph Onyekwere it is unconstitutional for National Assembly to legislate on Residual list The Guardian 12 September 2017 p 32.



[1] Section 14 (2) of the 1999 Constitution of Nigeria AS Amended

[2] Section 1(2)

[3] Section n14(2)(c)

[4] R.B. Posey American Government Littlefield, Adams & Co New Jersey (1975) Although Nigerian federation is peculiar and does not conform to this principle thus the various agitations for restructuring.

[5] Section 1(1) of the 1999 Constitution of Nigeria as Amended

[6] Section 12

[7] Section 4(2) & (3) see part III supplemental and Interpretation second schedule to the 1999 Constitution of Nigeria

[8] R.B. Posey op cit

[9] Part I Second Schedule

[10] Part II Second Schedule

[11] Part I Second Schedule

[12] Jadesola Akande Introduction to Nigerian Constitution 1999

[13] Ibid

[14] Item 3B of Second Schedule

[15] Section 1 (3) of the 1999 Constitution o Nigeria (as amended)

[16] [1961] 1 All N.L.R. 469

[17] 1961 1 All NLR 469 at 470

[18] Ibid

[19] Section 64(4)

[20] (1914) 10 C.L.R. 266

[21] (1937) 58 C.L.R. 618, p. 630

[22] Ibid

[23] Jadesola Akande op cit

[24] Ibid

[25] Jadesola Akande op cit.

[26] R.B. Posey-American Government little field Adams & Co New Jersey 1974 p. 84

[27] Ibid

[28] Ibid

[29] Ibid

[30] 4 Wheaton 316 (1819)

[31] Ibid

[32] Ibid

[33] 4 Wheaton 316 (1819)

[34] Article 1 Section 8 (18) of 1789 Constitution of America as Amended

[35] 229 U.S. 304 (1936)

[36] R. B. Possey op cit

[37] Ibid

[38] Ogwuegbu v Agomuo & Ors (Supra)

[39] Ogwuegbu v Agomu o & Ors (Supra)

[40] Ogwuegbu v Agomuo & Ors (supra)

[41] Oxford Dictionary of Current English 12th Edition 2012

[42] Part III Second Schedule

[43] Section 1 of Part III Second Schedule

[44] Section 2 of part III Second Schedule

[45] Section 2 (a) (b) & (c) of Part III Second Schedule

[46] Section 2(2) Part III

[47] Jadesola Akande Introduction to Nigeria Constitution 1999. As Amended

[48] Section 1 of part III Second Schedule

[49] Second Schedule part I & II

[50] Attorney General of federation v Attorney General of Lagos state 2013 16 NWLR (pt 1380) 249

[51] Ibid

[52] The Supreme Court Judgement on Hotel licensing Regulation PWC Nigeria.typed.com>2013/7>the… accessed on 20-3-18

[53] Why federal Government can’t legislate on Hotels, Restaurant thenationonlineng.net>fed-gov-cant-le… accessed on 20-3-18

[54] Ibid

[55] Ibid

[56] Attorney General of Lagos State v Attorney General of federation 2013 No NWLR (pt 1300) 383

[57] Nigerian Tourism Development Corporation Bill: A Tide that carries only monetary waves African traveltimes.com>features accessed on 20-3-18

[58] Ibid

[59] Ibid

[60] Joseph Onyekwere it is unconstitutional for National Assembly to legislate on Residual list The Guardian 12 September 2017 p 32

[61] C.C. Nweze Constitutional Adjudication for Democratic Consolidation in Nigeria: The role of the Supreme Court being a paper delivered at 16th Justice Idigbe memorial lecture at faculty of law University of Benin on 8th November 2017

[62] See Olafisoye v. FRN (2004) 4 NWLR (pt 864) 580, 646-649; also, K.C.Wheare, “Federalism”, in International Encyclopaedia of Social Sciences (1968) vol. p. 33, see, also, Sobel Mogi, “The Problem of Federalism”, Williams Livingstone, “A Note on the Nature of federalism”, in Mackinson, (ed), Canadian federalism: Myth or Reality, p. 22, cited in Taiwo Osipitan, “Inter-Governmental Relations and the 1989 Constitution: Problems & Prospect”, in (1990) Jus Vol. 1 No. 2 p. 27 at p. 28 fn 12

[63] See, Ademola Popoola, “The Legislative Powers of the National Assembly: The Exclusive and Concurrent Lists,” in 1.A. Umezuike (ed) Democracy Beyond the Third Republic, (Enugu: fourth Dimension Publishing Co. Ltd, 1993) 65

[64] See, for example, FRN v. Anache (2004) 14 WRN 47 – 49; per Tobi JSC; also Glendening and Reeves, Pragmatic Federalism (2nd ed. 1984) p. 13 cited in Oyelowo O. Oyewo, “The Legislative Powers of the National Assembly: The Exclusive and Concurrent Legislative Lists”, in I.A. Umezulike (ed)Ibid p. 42 fn 2

[65] See, B.O. Nwabueze, Federalism in Nigeria under the Presidential Constitution (London: Sweet and Maxwell, 1983) 1. See, also Oyelowo O.Oyewo, art.cit, 42 fn 2

[66] See, the works cited in notes 18, 19, 20 and 21 (supra).

[67] The concept of “division of powers” has been described as “one of the greatest attributes or one of the bridges of federalism”, see, per Tobi JSC in Olafisoye v. FRN (supra, note 1) 669

[68] Throughout this presentation, the more convenient formula “1999 Constitution” shall be used

[69] See, Oyelowo O. Oyewo, art. Cit, 41

[70] {1983} 6 SC 8

[71] Per Tobi JSC in A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1,246

[72] See per Fatayi-Williams, CJN in A.G, Ogun State v. A.G. federation (1982) 2 FRN 4, 14

[73] B.O. Nwabueze, Federalism in Nigeria…op. cit. Chap 3

[74] It is useful to note that as Professor B.O. Nwabueze explained about the 1979 Constitution, the technique of division applies to both Legislative and Executive powers. With humility, we share his view that” [a]lthough the enumeration of matters is specifically for purposes of the exercise of legislative power, the division of executive power follows upon the same principle…” See B.O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & Company in association with Nwamife Publishers, 1982) 54; also, AD v. P.S.I.E.C (2004) 10 NWLR (pt 880) 19,34, 45; Ojibara v. Governor of Kwara State (2004) 30 WRN 26, 60-61

[75] Ibid

[76] See, e.g. Jadesola Akande, “Constitutional Developments”, in T.A. Aguda (ed), The Challenge of the Nigerian Nation: An Examination of its legal Development 1960-1985 (Lagos: Heineman Educational Books Nigeria, Limited, 1985) p. 21; B.A. Susu, “Techniques of Power-sharing and the Concurrent List,” in (1992)JUS vol. 3 Nos. 4 & 5 p. 25; O. Orojo, “Intra-Governmental Relations under the Nigerian Constitution,” in I.A. Umezuike (ed) Towards the Stability of the Third Republic (Enugu: Fourth Dimension Pub. Co. Ltd., 1993) 154, 155; Abiola Ojo, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers Nigeria Publishers Limited, 1987) 152; B.O. Nwabueze, The Presidential Constitution of Nigeria op. cit., 53.

[77] Amuwo, op cit 7

[78] Item 67, Part, Secod Schedule incorporates, by reference, the matters provided for in the body of the Constitution. For e.g. S.4 (Legislative Powers, generally); S. 7 (6)(a) Public revenue of local governments); S. * (Creation of States, boundary adjustment); S. 9 (altering the Constitution); S. 11 (Public Order & Public Security); S. 12 (Implementation of treaties); etc.

[79] Part 1, Second Schedule, 1999 Constitution. See, A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1

[80] Part II, Second Schedule, 1999 Constitution. See, also, Olafisoye v FRN (supra) 668-669

[81] AG. Lagos State v AG federation 2003 12 NWLR (part 833) p 114

[82] See, per Tobi JSC approvingly quoting and adopting the views of Professor B.O. Nwabueze, federalism in Nigeria, see, Olafisoye v. FRN (supra) 668-689

[83] Part I of Second Schedule

[84] Note the decision in Doherty v Balewa (1961) All NLR (reprint) 630; Akwule v. The Queen (1963) All NLR 191

[85] See, B.O. Nwabueze, The Presidential Constitution, Op. cit. 53

[86] See, B.A. Susu, art cit., 25

[87] B.Adebisi, “State Autonomy an financial development” in W.I.Ofonagoro et al (eds), The Great Debate (Lagos: Daily Times, Ltd) 215

[88] See, Ibid 215

[89] (2004) 14 WRN 1

[90] See, infra 85

[91] P. 86 paragraph 2

[92] See, Ibid

[93] (2002) 27 WRN; (2002) 9 NWLR (pt 772) 222

[94] See, Ibid. 468

[95] P. 468 Paragraph 4

[96] Section 2 Part III Second Schedule

[97] CC Nweze op cit

[98] Ibid 334-335

[99] C.C. Nweze, “The Judiciary; The Guardian of Democracy under the Constitution”,  in UNIZIK Law Journal Vol. 1 No. 3, 1

[100] See, Oyewolo Oyewo, art. Cit. 34

[101] (1982) 10 SC 1; also, A.G. Abia v. A.G. federation (supra); INEC v. Musa (supra)

[102] (1983) 3 NWLR (pt 83) 280 at 254. See also Oil Palm Co. v A.G. Bendel State (1981) 6 NCLR 344, 351

[103] Ibid

[104] On the evolution of judicial review, see, C.C. Nweze, “Judicial Sustainability of Constitutional Democracy in Nigeria: A Response to the Phonographic Theory of the Judicial function”, in E.S. Nwauche and f.I. Asogwa, (eds) Essays in Honour of Professor C.O. Okonkwo (SAN) (Port Harcourt: Jite Books, 2000) 221

[105] Ibid

[106] Section 4(8)

[107] See, par Fatayi-Williams CJN in A.G. Bendel State v. A.G. of the federation (981) 10 SC 1 at p. 33

[108] Adeniyi Adele & Ors v. Governor Lagos State & Ors (1982) 3 NCLR 698; Balogun & Ors v. A.G. Lagos State (1981) 1 NCLR 31 See, generally, A.G. Karibi Whyte, The Relevance of the Judiciary in the Polity- In Historical Perspective (Lagos: NIIA, 1987) p. 80 et seq

[109] Section 6 (6) (a) 1979 and 1999 Constitution

[110] Section 6 (6) (a) 1979 and 1999 Constitution

[111] (1981) 1 NCLR 4; also, Oleri v. Awhinawhi (1982) 3 NCLR 680

[112] (1982) 3 NCLR 743

[113] A.G. Bendel State v. Omonuwa (1982) 3 NCLR 472, 476; see, generally, A.G. Karibi-Whyte, op. cit 82

[114] C. Otakpor, “Assessing Democracy via Litigation” Book Review, in New Age (Lagos), Tues. Oct. 26, 2004, 33

[115] A.G. Abia v. A.G. federation (supra); A.G. federation v. A.G. Abia (No. 2)(2000) 6 NWLR(pt 764) 542; INEC v. Musa (supra); A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1; A.G. federation (2002) 9 NWLR (pt 972) 222; Olafisoye v. FRN (supra), A>G. Ogun v. A.G. federation (2002) 18 NWLR (pt 798) 232 and so on

[116] See, Ibid. 213-214

[117] 2003 AHRLR 192

[118] Electoral Act 2001 now amended as Electoral Act 2010

[119] See, The Guardian, Tues. Nov. 19, 2002, 12

[120] See, the submission of F.R.A. Williams, SAN, cited in A.G. Abia State v. A.G. Federation (supra) 402

[121] The Guardian 20-3-2001 P 40

[122] See, R.A. Joseph, Democracy and Prebendal Politics in Nigeria: The rise and fall of the Second Republic (Ibadan: Spectrum Books Ltd, 1991, 1999) 8

[123] 2006 6 NWLR (part 764) 542

[124] Ibid

[125] Ibid

[126] Ibid 401

[127] Ibid

[128] Educational Comment in This Day, loc. cit

[129] [2003[ 12 NWLR (pt 833) 1

[130] See, T. Osipitan, art. Cit 29

[131] Ibid

[132] Ibid

[133] Ibid

[134] See, T. Osipitan, loc. cit

[135] CC Nweze op cit

[136] See, for these and more, item A 1 (a) (i)-(iv)

[137] See, item A 2

[138] See, B.A. Susu, art. Cit. 26

[139] See, item L 27

[140] Item L 28

[141] Item L 29

[142] See, B.O. Nwabueze, The Presidential Constitution of Nigeria, op. cit. 53-54

[143] See, B.O. Nwabueze, “Reflections on the 1999 Constitution: A unitary Constitution for a federal System of Government” (Paper delivered at a seminar in Abuja organised by the ICJ 14-16 Feb. 2000) 9

[144] The Academic Controversy that has enveloped the extent of application of the doctrine in Nigeria is beyond the scope of this paper. For this debate, see, D.I.O. Ewelukwa, “The doctrine of covering the field”, in Nig. J.R. vol. 2 (1999) 30; B.O. Nwabueze, The Presidential Constitution, loc. Cit.; A.O. Popoola, “The Legislative Powers of the National Assembly…” art. Cit. 74. See, however, the following decisions, Lakanmi v. A.G. of the West (1971) UILR 201; A.G. Ogun State v. A.G. federation (supra) p. 13

[145] Section 1 Part II Second Schedule

[146] See, T. Osipitan, art.cit. 29

[147] Item C 5

[148] Ibid

[149] (1989) 4 NWLR (pt 117) 517 at 580

[150] Ibid

[151] [1991] 7 SCNJ (pt 11) 196

[152] Item K 25

[153] Item K 26

[154] See, B.A. Susu, art.cit.26

[155] Item f 14 (b)

[156] Item f 13 (e)

[157] See, generally, B.A. Susu, loc. cit

[158] See, generally, B.A. Susus, loc.cit

[159] See, B.A. Susu, loc.cit

[160] 2003 12 NWLR (pt 883) 12

[161] Item J. 23 (e)

[162] See, Ibid. 160-170

[163] Ibid

[164] (1998) 4 KLR (pt 62) 847