NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATION & ANOR v. A.G., FEDERATION & ORS (2021)

NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATION & ANOR v. A.G., FEDERATION & ORS

(2021)LCN/14984(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/A/414/2019

RATIO

INTERPRETATION: CARDINAL RULE IN INTERPRETATION OF STATUTES

One of the cardinal or ardent position of the law relating to interpretation of the statute is that a Court or Tribunal is not entitled to read into a law, things that are not contained in the statute or intended. A statute must be interpreted in a way that will not defeat the intention of the legislature. The words used in a statute must be given their natural and grammatical meaning. The provisions of a statute must be read communally giving important consideration to the intention of the law maker.

See:
1. DR. O. A. SARAKI VS FRN (2016) 4 SCM 94 AT 132 G – H per ONNOGHEN, JSC now Ag. CJN.;
2. BRITTANIA – U NIGERIA LTD VS. SPDC LTD & ORS(2016) 3 SCM 44 AT 81 per NGWUTA, JSC, who said:
“In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meaning.”
Whatever method of interpretation is adopted, the paramount thing is that the intention of the law maker must not be circumvented or twisted. PER PETER OLABISI IGE, J.C.A.

CONSTITUTIONAL LAW: LEGISLATIVE POWERS OF THE FEDERAL REPUBLIC OF NIGERIA

Pursuant to Section 4 of the 1999 Constitution, the legislative powers of the Federal Republic of Nigeria is vested in the National Assembly to make laws for peace, order and government of the Federation with respect to any matter included in the Exclusive Legislative List and on the Concurrent legislative List. The legislative powers of the House of Assembly are also encapsulated in the said Section 4 of the Constitution which reads:
4.(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the House of Assembly of States.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.
(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the Jurisdiction of a Court of law or of a judicial Tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.
See: Attorney General of Bendel State vs. Attorney General of the Federation (1981) NSCC (VOL 12) page 314 at 331 per FATAI – WILLIAMS CJN who categorically held that:
“While on this point, it is pertinent to state that the exercise of legislative powers by the National Assembly referred to in Section 4(8) above is not only part of the legislative process of two Houses, it is also related to the mode of exercising Federal legislative power clearly set out in Sections 54, 55 and 58 of the Constitution to which I have referred earlier. Having regard to those provisions, it is my view that the legislative process commences when a Bill is introduced and first read in any of the two Houses of the National Assembly and ends when that Bill has been passed into law by those Houses and assented to by the President of the Federal Republic of Nigeria. (see Bribery Commissioner Vs Ranasinghe (1965) A. C. 172 (P.C) at pages 193, 195 and 197 and Gallant vs. The King (1949) 2 D.L.R. 425 at page 428. The “exercise of legislative powers by the National Assembly”, being part of the legislative process, starts when a Bill is first introduced in any of the two Houses constituting that august body and ends at the moment before it is assented to by the President. Since the exercise of such powers “shall be subject to the jurisdiction of Courts of law and of judicial/Tribunals established by law”. I am clearly of the view, and I do so hold, that this Court has jurisdiction to hear the plaintiff’s claims. The provisions of our Constitution on the point are clear and devoid of any ambiguity.” PER PETER OLABISI IGE, J.C.A.

INTERPRETATION: RULE ON CONSTRUCTION OF THE PROVISIONS OF A STATUTE

It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution, the Court or Tribunal must construe or interpret the statute or the Constitution in order to bring out plainly the real intention of the Lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate design or purpose of the Constitution or statute that calls for interpretation. See:
1. HON. JAMES ABIODUN FALEKE V INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 117 F – H per KEKERE-EKUN, JSC who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A.-G., Bendel State v. A.-G., Federation (1981) 10 SC 132 – 134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H: Adisa v Oyinwola & Ors (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. F.R.N (2016) LPELR – 40013 SC, (2016) 3 NWLR (Pt. 1500) 531.”
2. OCHOLI ONOJO JAMES, SAN V INEC & ORS (2015) 12 NWLR (PART 1474) 538 AT 588 D – G also per KEKERE-EKUN, JSC who had this to say –
“In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See Mohammed v Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v Ademola (2010) 15 NWLR (supra) @ 190 191 G – A; 205 D – F.”
(3) CHIEF (MRS) O. V. EHUWA VS ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 18 NWLR (PART 1012) 544 at 588:
“It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution, see Rabiu v. Kano State (1981) 2 NCLR 293: (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264.
The proper approach to the interpretation of clear words of a statute is to follow them in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning. This is generally also true of construction of constitutional Provisions if they are clear and unambiguous even when it is necessary to give them a liberal broad interpretation – see Fawehinmi v. I.G. of Police & Ors. 7 NWLR (Pt. 767) 606 at 678.” PER PETER OLABISI IGE, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING THAT AN ACT OF THE NATIONAL ASSEMBLY OR A LEGISLATURE IS INVALID OR MADE OUTSIDE THE LEGISLATIVE POWERS CONFERRED ON IT BY THE CONSTITUTION

It must also be noted that a person who alleges that an Act of the National Assembly or a legislature is invalid or made outside the legislative powers conferred on it by the Constitution has the onus to prove the assertion. See CHIEF EMMANUEL OLATUNDE LAKANMI VS. PETER ADEBAYO ADENE & ORS (2003) LPELR- 1750 (SC) 1 at per KALGO, JSC who said:
“That the Court then came to the conclusion that the appellant as plaintiff had the onus of adducing evidence to prove the invalidity or illegality of the relevant Decrees or Edicts or the order of forfeiture which divested him of his right to the property concerned before it was sold to the respondent. I agree entirely with the Court of Appeal that in the particular circumstances of this case the onus of proof lay squarely on the appellant. It did not shift and the appellant, as plaintiff, has the duty to prove that the laws or notice which took away his property from him were ineffective, null and void before he can succeed.” PER PETER OLABISI IGE, J.C.A.

WORDS AND PHRASES: DEFINITION OF LOTTERY

Lottery is defined in Black’s Law Dictionary 10th Edition on page 1090 as:
“1. A system of deciding who will get something; choosing of people’s name by chance.
2. A method of raising revenues, esp. State Government revenues, by selling tickets and giving prizes (usu. cash prize) to those who holds tickets with winning numbers that are drawn at random. Also termed lotto.”
Section 57 of the National Lottery Act 2005 defined lottery or lotteries to “include any game, scheme, arrangement, system, plan, promotional competition or device for the distribution of prizes by lot or chance, or as a result of the exercise of skill and chance or based on the outcome of sporting events or any other device which the President may by notice in the gazette declare to be lottery and which shall be operated according to a licence.”
On the other hand, Section 10(2) of the National Lottery Regulations 2007 says:-
“Lotteries with short durations, periodic lifespan, seasonal existence and promotional lotteries of less than 10 years duration shall be operated pursuant to a valid permit granted by the Commission.” PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. NIGERIA EMPLOYERS’ CONSULTATIVE ASSOCIATION (NECA) 2. NIGERIA BREWERIES PLC APPELANT(S)

And

ATTORNEY-GENERAL OF THE FEDERATION 2. NATIONAL LOTTERY REGULATORY COMMISSION 3. NATIONAL LOTTERY TRUST FUND RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By an Originating Summons dated and issued on 15th November, 2018, the Appellant who was the Plaintiff at the FEDERAL HIGH COURT, ABUJA DIVISION, claimed against the Defendants/Respondents the following reliefs:
“1. A declaratory judgment that the National Lottery Act 2005 and the National Lottery Regulation 2007 CANNOT be made in exercise of Federal Legislative powers under the 1999 Constitution of the Federal Republic of Nigeria as amended and in consequence is void and of no effect whatsoever.
2. A declaratory judgment that the 2nd Plaintiff is NOT subject to the regulatory powers of the National Lottery Commission and the National Lottery Regulation 2007 not being a registered or registerable licensee or otherwise established under law for the purpose of carrying out the business of lottery in Nigeria.
3. A declaratory judgment that the “sales promotion” to consumers of manufactured goods arising from the purchase of 2nd Plaintiff’s products otherwise titled “United We Shine Win a Trip To Russia” or any such promo CANNOT come within the contemplation of the “business of the

National Lottery” and consequently subjected to the regulatory powers of National Lottery Regulatory Commission.
4. A declaratory judgment that the 2nd Plaintiff is NOT under legal duty or CANNOT come under legal duty to pay any returns to any fund created by National Lottery Act having not sold prize ticket for money received monetary returns from participants on the purchase of tickets in respect of each lottery conducted under license.
5. A declaratory judgment that a consumer ticket attached to the purchaser of 2nd Plaintiff’s goods that entitles the said consumer/purchaser to the receipt of goods in a sales promo or travel rights instead of monetary payment as price winner CANNOT be said to be a lottery ticket within the contemplation of National Lottery Act 2005.
6. A declaratory judgment that without the sale of prize tickets that entitles ticket purchaser to the wining of prize money, the 2nd Plaintiff CANNOT be said to have proceeds of National Lottery, payable either to “prize fund” or “trust fund” created by S24 of the National Lottery Act 2005.
7. A declaratory judgment that the sealing up of the 2rd Plaintiff’s office at No

19 Ajesa street off Aminu Kano Crescent Wuse 2 F.C.T Abuja is an infringement of the right of the 2nd Plaintiff to freely carry on business and entirely ultra vires the powers of the 1st and 2nd Defendants.
8. A declaratory judgment that the 2nd Plaintiff not being a company established to carry on the business of National Lottery cannot be compelled to register with the 2nd Defendant or obtain permit or pay fees for the same registration or permit or otherwise be subjected to any penalties for failure to register or obtain permit for its “consumer promo”.
9. A declaratory judgment that the Plaintiff cannot be a person entitled to the grant of a National Lottery License within the contemplation of Sections 17, 18, 19, and 20 of the National Lottery Act 2005.
10. A declaratory judgment that the Defendants have no power of enforcement by sealing up the premises of the 2nd Plaintiff or any company member of the 1st Plaintiff in purported execution of the National Lottery Act.
11. A perpetual injunctive Order against the Defendants by themselves, their agents however from carrying on/out the business of regulating Lottery business in

Nigeria.
12. A perpetual Order of injunction restraining the Defendants by themselves, agents otherwise howsoever from interfering, disturbing, impeding, intruding howsoever or whatsoever with the business of the 2nd Defendant and members of the 1st Plaintiff in purported exercise of the powers or any powers whatsoever under the National Lottery Act 2005.
13. An award of N1,000,000,000.00 (One billion naira) to the 2nd Plaintiff against the 1st and 2nd Defendants for damage to business reputation and business standing.
14. An award of N1,000,000,000.00 (One billion naira) in favour of the 2nd Plaintiff against the 1st and 2nd Defendant for trespass to its premises.
15. An award of N1,000,000,000.00 (One billion naira) in favour of the 2nd Plaintiff for loss of income.
16. An Order of Court directing accounting and return of all collected moneys however or whatsoever from:
i. Any member of the 1st association.
ii. The 2nd Plaintiff in the enforcement or purported enforcement of the National Lottery Act 2005.”

The reliefs were predicated on questions posed for determination of the lower Court. At the end of

hearing, the learned trial Judge gave a considered judgment and found against the Plaintiffs now Appellants as follows:
“Consequent on the above I hold that from the processes filed by the Plaintiffs in this suit, it reveals that the sales promotion carried out by the Plaintiffs has all the essential elements of a lottery scheme of arrangement and the argument of the Plaintiffs that it did not sell tickets to participants is of no merit because the right to participate in the promo is limited to the customers who participate in the business of the 2nd Plaintiff within a specified period of time. From the totality of all the above I hold that the sales promotion activities of the Plaintiffs for all intent and purposes falls within the purview and amounts to Lottery business within the prescription of the National Lottery Act 2005 and the Plaintiffs can be classified as Licensee under the National Lottery Act and the National Lottery Regulation 2007 and even if the Plaintiff’s business is not permanent activity, it still does not obviate the Plaintiffs from being subject to the National Lottery Act and Regulation. Consequent on the above, I hold that I

resolve this suit against the Plaintiffs and refuse all the reliefs sought by the Plaintiffs as same has already been decided upon by this Honourable Court in the Judgments mentioned above and I have not come across any judgment that has upturned the decisions of this Court by the Appellate Court.
Consequently, I hereby dismiss the suit of the Plaintiffs in its entirety. I make no order as to cost.”

The Appellants were aggrieved and have by their Notice of Appeal dated 29th day of March, 2019 and filed same day appealed to this Court on four grounds which without their particulars are as follows:
“2. PART OF THE JUDGMENT OF THE LOWER COURT COMPLAINED OF:
The Decision of the lower Court in respect of the Grounds of Appeal filed.
3. GROUND OF APPEAL
GROUND I
The Honourable Court erred when it held as follows:
“From the clear wordings of Section 50(3) which I reproduced above, the 3rd Defendant being the National Lottery Trust Fund is included by implication among those to be issued with a pre-action notice. This is because the board of trustees are the ones responsible for the management of the National Lottery Trust

Fund and as such the governing body of the Trust Fund and are responsible to the board. The provision of Section 50 (3) of the National Lottery Act 2007 is a mandatory requirement which must be complied with and from all the documents exhibited in this suit, there is no evidence showing that a notice was indeed served on the 3rd Defendant detailing the alleged cause of action, the name and place of abode of the intending Plaintiff and the reliefs sought as explicitly provided by Section 50(4) of the National Lottery Act 2005. On the basis of the above therefore, the NPO of the defendant succeeds and I accordingly strike out the name of the 3rd Defendant from this suit”.
GROUND II
The Honourable Court erred when it held it as follows:
“I hold that the National Lottery Act 2005 is in no doubt enacted by the National Assembly and by the powers vested on the National Assembly to make laws as provided by the Constitution. It will therefore be wrong to declare that the National Lottery Act was enacted in violation of the Constitution. The National Lottery Regulation 2007 was made by the governing board of the National Lottery Regulatory Commission

with the consent of the President of the Federal Republic of Nigeria as provided by Section 55(1) of the National Lottery Act and as such if these laws were made in violation of the Constitution, it will not have seen the light of the day. To this end, I answer issue 1 distilled from the issues on this point in favor of the Defendants”.
GROUND III
The Honourable lower Court erred when it held as follows:
“From the totality of all the above I hold that the sales promotion activities of the Plaintiffs for all intent and purpose falls within the purview and amounts to Lottery business within the prescription of the National Lottery Act 2005 and the Plaintiffs can be classified as Licensee under the National Lottery Act and the National Lottery Regulation 2007 and even if the Plaintiffs’ business in not permanent activity is still does not obviate the plaintiffs from being subject to the National Lottery Act and Regulation”.
GROUND IV
The Honourable Court erred when in its judgment it failed to pronounce on the enforcement power of the 2nd Respondents challenged by the Appellant in the suit.”
RELIEFS SOUGHT FROM THE COURT OF APPEAL

An order setting aside the decision of the Federal High Court delivered on the 11th day of March, 2019 to the extent of this Appeal.
ii. An order granting all the reliefs sought by Appellants in their Originating Summons at the Lower Court.
iii. Any other relief(s) the Court may deem appropriate to make in the circumstance of this case.”

The appeal was heard on 11th day of November, 2020 when Learned Counsel to the Appellants and Respondents adopted their respective Brief of Arguments.

The Learned Counsel to the Appellants distilled four issues for determination viz:
a) Whether a pre-action Notice is required to be issued before commencing a suit against the 3rd Respondent? i.e. National Lottery Trust Fund.
b) Whether the National Assembly can legislate on lottery or lottery business having regards to the 2nd schedule of the 1999 Constitution.
c) Whether the National Lottery Regulatory Commission can by regulation expand or extend the provisions of the National Lottery Act 2005, to cover consumer sales promotion.
d) Whether consistent with law, the lower Court could refuse or fail to pronounce on the

challenged enforcement powers of the 2nd and 3rd Defendants.

The Learned Counsel to the 1st Respondent adopted the four issues for determination distilled by the Appellant. Learned Counsel to the 2nd Respondent distilled three issues for determination as follows:
1) Whether in view of Section 57 of the National Lottery Act, (NLA) 2005 and Section 10(2) of the National Lottery Regulation 2007, the 1st Respondent has statutory powers to regulate lottery in any form.
2) Whether the National Assembly’s power to make laws for the benefit of the country is excluded when it comes to Lottery.
3) Whether the decision of the lower Court that promotional activity of the Appellants fell under the purview of National Lottery Regulatory Commission and amounts to Lottery business within the prescription of NLA, 2005 was not a pronouncement.

Learned Counsel to the 3rd Respondent nominated three issues for determination as follows:
a) Whether the trial Court was right in holding that the 3rd Respondent was entitled to a pre-action Notice before the suit at the trial was commenced by the Appellants.
b) Whether the National Lottery Act,

2005 and the National Lottery Regulation, 2007 are laws made within the competence of the National Assembly.
c) Whether the National Lottery Regulatory Commission can by regulatory power expand or extend the provisions of the National Lottery Act, 2005 to include consumer sales promo.

I am of the solemn view that the appeal can be determined on the four issues formulated by the Appellant.
ISSUE 1
“Whether a pre-action Notice is required to be issued before commencing a suit against the 3rd Respondent?

Learned Counsel to the Appellant submitted that the National Lottery Regulatory Commission Governing Board as stated under Section 2 of the National Lottery Act 2005 has overall control of the Commission whereas the Board of Trustees refers to the National Lottery Trust Fund Board of Trustees created in Section 36 of the Act with overall control of the Trust Fund.

He submitted that the membership of the Board or the Board of Trustees are designated individuals specified in Section 2(2) of the Act and Section 36(2) of the Act. That with reference to Section 50(3) of the Act, only the members listed either in Section 2(2) or

36(2) of the Act that is members of the “Board” or members of the “Board of Trustees” are the persons not sueable without pre-action notice.

That the Trust Fund by law is an entity created by the Act and independent of the members of the Board of Trustees of the fund. That it may sue and be sued in its corporate name under the Act. That the power vested by the Act on the National Lottery Trust Fund to sue and be sued in its corporate name is not the same with regards to the members of the Board of Trustees created under Section 36(1) and (2) of the Act.

Learned Counsel submitted that Section 50(3) of the National Lottery Act 2005 does not require the service of a pre-action notice on the 3rd Respondent before an action is commenced against it. That the National Lottery Trust Fund is not within the category or contemplation of the provisions of Section 50(3) of the Act.

He relied on two canons of statutory construction Expressio Unius est, exclusio alterius and the literal rule. He also relied on the following cases:
(1) EHUWA VS. ONDO STATE INEC (2007) ALL FWLR (PT. 351) at 1430 & 1431
(2) AKPAN VS. UMAH (2002) FWLR (PT 110)

at 1838 para. A – B.

He stated three instances under the Act in which pre-action is required viz:
1) When you intend to sue a member of National Lottery Regulatory Commission Governing Board.
2) When you intend to sue a member of the National Lottery Trust Fund Board of Trustees or
3) Those other/specified officers or individuals in Section 50 (3) of the Act.

That the 3rd Respondent does not fall under any of the above categories. That applying the expression Unius exclusion principle and the literal rule to the provision of Section 50(3) of the National Lottery Act, it is crystal clear that the draftsman never intended the service of a pre-action notice on the 3rd Respondent or any other person not specifically mentioned in the section.

That the service of a pre-action notice under the provision of Section 50 (3) of the National Lottery Act implied or extended does not accommodate the 3rd Respondent or any person not specifically mentioned.
He urged this Court to resolve this issue in favour of the Appellant.

In response to this issue, Learned Counsel to the 1st Respondent submitted that Section 50 of the National Lottery Act

stipulates that where there is an action against the staff, the Director-General, Executive Secretary or the Governing Board or Members of the Trustees of the Commission or the Trust Fund for an action done in pursuance of the National Lottery Act or any public duties authorized by the Act, a one month pre-action notice must be served on the Commission (in line with Public Officer Protection Act) and the notice must state clearly the cause of action and the particulars of claim. That where a party fails to serve a pre-action notice on the commission or the Trust Fund such actions becomes null and void and must be struck out.

He relied on the cases of NIGERCARE DEVELOPMENT COMPANY LTD V. ADAMAWA STATE WATER BOARD & ORS (2008) LPELR – 1997 (SC) and ABUJA MUNICIPAL AREA COUNCIL v. C.W. OKOLI TRANSPORT COMPANY LTD (2009) LPELR- 3579 (CA) to state the purpose of serving an organization with a pre-action notice before filing a suit against its officials.

That a perusal of Section 50 of the Act and particularly the marginal note will indicate that the drafters of the Act intended that pre-action notice must be issued to the

Commission or the Trust Fund even where the suit is against the Commission or Trust Fund. That the marginal note reads “Limitation of suits against the Commission”, thus the drafters of this Act contemplated that most action will be commenced against the commission.

He relied on and cited the case of ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1981) 10 SC p. 1 and relied on the guidelines on Interpretation Act and Constitution to the State that they must be read holistically and not in parts or in manner that will defeat the evident purpose.

That it is trite law in the constitution of a Statute, the entire provisions of the statute should be considered collectively and holistically. That this will give proper interpretation and purposive meaning to the statute in line with the intendment of the law makers. That such a collective interpretation of the section of the statute would ensure that the sections are not interpreted in a manner that would be inconsistent with other provisions of the statute and which may lead to absurdity or confusion. He relied on the case of MBACCI & ORS V. AG ANAMBRA STATE & ANOR (2016)

LPELR – 41020 (CA).

That in as much as actions could be brought against the Commission/ Trust Fund, the drafters of the Act expected pre-action notices to be served on the Commission, irrespective of the person the suit is actually intended against. That Section 50(1) states that the provisions of the Public Officers Protection Act apply when instituting a suit against a member or an officer of the Commission/Trust Fund. That the Public Officer Protection Act is not specific to the staff alone, but to the officers, as the term ‘public officer’ includes artificial person, public bodies, corporate bodies, statutory bodies etc. He relied on the case of ALHAJI ALIYU IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) LPELR – 1408 (SC).

That the Appellants filed a Suit against the National Lottery Regulatory Commission and the National Lottery Trust Fund aggrieved by the actions of its agents (the Director General and the Governing Board) in making regulations and extending the term ‘lottery’ to cover consumer sales promotion. That irrespective of the fact that the Suit was instituted against the Commission and Trust Fund, they should

have still issued a pre-action notice to enable them either consider settlement out of Court or have ample time to prepare their defence.
He urged this Court to resolve this issue in their favour.

In his own response, Learned Counsel to the 2nd Respondent submitted that it is an elementary principle in the construction or the interpretation of Statutes that the words used in statute should be given their natural and ordinary meaning. He relied on the case of ATTORNEY GENERAL OF THE FEDERATION V. THE GUARDIAN NEWSPAPER LIMITED (1999) NWLR (Pt. 618) p. 187.

In his own response to issue 1, Learned Counsel to the 3rd Respondent submitted that the purpose of giving notice of a claim/pre-action notice to a party entitled to it is to ensure the party is not taken by surprise, and to afford the party adequate time to prepare an adequate defence. That where an action is commenced without the service of a pre-action notice where required by statute, it renders the action a nullity. He relied on the case of NIGERIA DEV. CO LTD V. A.S.W.B (2008) NWLR (PT. 1039) at page 503.

That the failure of the Plaintiff to serve on the 3rd Defendant the

Statutory pre-action notice required under Section 50 (3) of the Act is not a mere irregularity that can be waived but a substantial, incurable failure on the part of the Appellants to undertake a condition precedent to commencing the action at the lower Court. He relied on SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 6, at page 26.

That an action commenced without the requisite statutory notice where required, renders the action incompetent against the party entitled to such statutory pre-action notice. He relied on the case of ATOLAGBE V. AWUNI (1997) 9 NWLR (PT. 522) page 533 and NDIC V. IFEDIEGWU (2002) 1 NWLR (PT. 800) at page 56.
He urged this Court to uphold the decision of the lower Court.

With respect to issue 2, Learned Counsel submitted that the National Assembly cannot exceed the Legislative limit prescribed in the Constitution and cannot legislate over item not consigned to it on the Constitution. He relied on the case of Attorney-General of Bendel State vs. Attorney-General of the Federation (1982) 3 NCLR (vol. 3) 1, 36. He also relied on the case of Attorney General of Bendel State vs. Attorney General of the Federation & 22 Ors (supra)

to state that the Court should give effect to every word, where the language of the Constitution is clear and unambiguous, it must be given its plain and evident meaning.

That as Lottery is not provided in the exclusive or concurrent list, it means the Constitution has not given the National Assembly Legislative power over Lottery or the Business of Lottery. That the Federal Legislative Power is not excisable over Lottery or Lottery business. He relied on the case of BABAGIDA V. OPUTA (2001) FWLR (PT. 82) and ATTORNEY GENERAL OF OGUN STATE V. ABERUAGBA (1985) 1 NWLR (PT. 3) 395.

That only a State House of Assembly has the prerogative to make laws relating to Lottery or Lottery business as the two items must be deemed to be in the residual list. That Item 67 of the Exclusive list in the 2nd Schedule of the 1999 Constitution relied upon by the lower Court cannot bring Lottery business within the legislative power of the National Assembly unless Lottery or Lottery business is otherwise put under the law making power of the National Assembly by any other provision of the Constitution.

That Lottery business specifically involves the

sale of a ticket which enables the participant to participate in chance, game or draw. That it is not Trade or Commerce, rather it is the business of chance in search for money. That the intention of the drafters cannot be said to include Lottery business under Item 62 of the exclusive list.

That the Taxes and Levies (Approved List for Collection) Act Laws of the Federation of Nigeria Cap 12 gives exclusive power to the State Government over pools betting and lotteries, gaming and casino taxes. That part 1 of the mentioned Act sets out taxes to be collected by the Federal Government which excludes Lotteries.

In arguing issue 3, Learned Counsel to the Appellant submitted that the 2nd Plaintiff is not subject to the Regulatory powers of the National Lottery Commission or the National Lottery Regulation 2007, not being a registered licensee or otherwise established under law for the purpose of carrying out the business of lottery in Nigeria. That the Act of the National Assembly can only be administered specifically to the purpose and persons for which it was enacted. He cited the case of DOHERTY VS. BALEWA (1961) 2 SCNLR, 256 @ 258.

That Section 1 of the National Lottery Act provides for the establishment of the National Lottery Regulatory Commission. That the Commission under Section 7 of the National Lottery Act shall regulate the operation and business of national lottery in Nigeria. That by virtue of the provision of Section 17 of the National Lottery Act, only the president can grant a license upon recommendation of the Commission. That Sections 18, 19 and 20 of the Act provide for the manner and mode of applying for such license, its grant and duration.

That a combined look at the provisions of the Act show that an essential feature of lottery business is the purchase of tickets which enable the participants partake in a game, scheme, a promotional competition from a company exclusively registered to do lottery business.

That according to the 2nd Appellant’s incorporation information presented to the lower Court, the 2nd Appellant is a corporate body involved solely in the manufacturing of alcoholic beverages. They are not involved in the sale of tickets of any kind and as such are not in need of a lottery license and do not need to apply for one.

That where words of a statute are

free from ambiguity they should be construed according to their plain and common meaning of the words. He relied on the case of ISHOLA V. UBN LTD (2005) ALL FWLR (PT 256).

That a close look at the sections of the National Lottery Act shows that the drafters of the Act intended only to regulate the business of lottery and not any form of promotion, marketing or advertising undertaken by private companies who carry out other business other than lottery business. That consumer sales promotion is not within purview of National Lottery Act.

That the Supreme Court held in the case of DOHERTY V. BALEWA (supra) that the Act of the National Assembly can only be administered specifically to the purpose and persons for which it was enacted. The National Lottery Regulatory Commission cannot extend or expand the National Lottery Act to include sale promotion by exercise of regulatory power. The Commission has no law making power nor can it be vested with it. That the attempt to bring promotion within lottery business by regulation is not only an admission that it was not there to begin with, that such attempt is clearly ultra vires the power of the Commission.

That it is settled law that companies established by statute cannot embark on an undertaking not expressly impliedly or authorized by statutes. He relied on the case of CHIEF D. A EBOREME V. MRS B. S. ARUMEME (1997) LPELR FACT/B/21/77.

That by virtue of Section 55 of the Act which grants the Board power to make regulations “for giving full effect to the provisions of the Act and for the due administration of its provision”, the National Lottery Regulations 2007 was promulgated. Clause 10(1) of the regulation in the view of the Appellants wrongly and improperly provides that “Lotteries with short duration, periodic life span, seasonal existence and promotional lotteries of less than 10 years duration shall be operated pursuant to value permit granted by the Commission”. That the above provision is a violation of the terms of the regulatory power granted to the Commission by Section 55 of the Act.

That Section 10(1) of the 2007 Regulation altered the provision of the Act by creating another class of lottery not known to the law and secondly, it violates the provision of the Act by conferring on the National Lottery Regulatory Commission the

power to grant looter permits which under the main Act is the prerogative of the president. That the attempt to expand the scope of coverage of the Commission by the instrumentality of regulation to include granting permit or a license is not within the contemplation of the Act and therefore it is unconstitutional. Thus there is no power to seal up the premises of the Appellant as the Commission did. That you cannot put something on nothing and expect it to stay there. He urged this Court to resolve this issue in the Appellant’s favour.

In his response to issue 2, Learned Counsel to the 1st Respondent submitted that is the duty of the Court to abide by the decisions of a Court of a coordinate jurisdiction where facts are similar and parties are the same. He relied on the case of SHELL PETROLEUM V. EDAMKUE & ORS (2009) 14 NWLR (PT. 1160) 1 SC.

That the trial Court was right to have relied on the decision of Justice A. M. Liman in National Lottery Regulatory Commission v. Attorney General of Lagos State suit No. FHC/L/CS/642/2007 in holding that lottery or lottery business falls under the purview of Paragraph 62 of the 2nd Schedule of the Constitution.

That words of the Constitution should not be read with stultifying narrowness. That to limit the scope of the National Assembly to items (a) – (f) is to give a stultifying interpretation of the term “Trade and Commerce”. That the definition of the Trade and Commerce is wide and goes beyond the items listed.

That lottery involves the selling of tickets in exchange for a prize. That persons who purchased the winning ticket(s) will in exchange get a prize. That the drafters of the Constitution intended that activities such as lottery will fall under Trade and Commerce being that it involves the exchange of items. That lottery falls within the strict purview of the National Assembly being an item that falls within the exclusive legislative list.
He urged this Court to resolve this issue in his favour.

While responding to issue 3, Learned Counsel to the 3rd Respondent submitted that the National Lottery Regulatory Commission and the National Lottery Trust Fund have been given the powers to provide guidelines to allow it carry out its functions as enshrined in Section 7 and the general offences as provided for in Section 34 of

set standards, guideline and rules for the operation of lottery in Nigeria.

That sales promotion is a form of Lottery as all four elements listed in the case of KEL TECHNOLOGIES LTD v. NATIONAL LOTTERY REGULATORY COMMISSION Suit No. FHC/PH/CS/128/2016, are present. That in the case of a sale promotion, paying for a good or service automatically amounts to consideration from the person partaking in the Lottery. He relied on the case of IMPERIAL TOBACCO LTD V. AG (1979) Q. B. 555. That sales promotion is within the contemplation of the drafters of the National Lottery Act. That the drafters of the National Lottery Regulation did not extend or expand the powers given to it by the Act. He urged this Court to resolve this issue in his favour.

Under this issue 2, Learned Counsel to the 2nd Respondent submitted that the provision of part 1, item no 67868 of the Exclusive Legislative list gave the National Assembly powers to legislate. That it was the intendment of the Legislature that wider and broader meaning should be given to the term trade and commerce. That the primary concern of the Court is to give credence to the intention of the Legislature. He

cited the case of G. E. C. Limited v. DUKE (2007) 25 WRN 120.

That the provision of Item 62 of the 2nd Schedule of the 1999 Constitution (as amended) provides for the areas to which the National Assembly can legislate upon and it includes Trade and Commerce.

In his response to issue 3, Learned Counsel to the 2nd Respondent in his own issue 1 submitted that the combined reading of Section 57 of the National Lottery Act, 2005 and Section 10(2) of National Lottery Regulation 2007 show that any promotional activities carried out by the Appellants fall under the purview of lottery business within the provisions of the Act and Regulation, which require valid license and permit issued by the 2nd Respondent.

That it is an elementary principle in the construction or the interpretation of statutes that the words used in the statute should be given their natural and ordinary meaning. He relied on the following cases:
(1) ATTORNEY GENERAL OF FEDERATION V. THE GUARDIAN NEWSPAPER LIMITED (1999) NWLR part 618 p. 187
(2) OJOKOLOBO VS. ALAMU (1987) 3 NWLR (PT. 377).

That what determines whether one is carrying out lottery business pursuant to

the Act and Regulations are the activities being carried on and not the aim of carrying on such activities. That the Plaintiff’s aim of the promo is to reward its customers and increase its customer base.

That the aim of the Act and the Regulation either for obtaining license/permit for such promo or lottery activities are to protect the citizens from fraudsters. That when such permits are granted, a staff of the 2nd Respondent will supervise the draw when it is being done and ensure that the staff supervising the draw ensures fair play and transparency on the activities, so that the winners of the prizes are not defrauded by the organizers of the promos or lottery operators. That the powers granted to the 2nd Respondent to regulate promotional lotteries has the backing of the law and same must be obeyed. He urged this Court to resolve this issue in favour of the 2nd Respondent.

In response to issues 2 & 3, Learned Counsel to the 3rd Respondent gave similar arguments relied upon by the 2nd Respondent. That the lower Court rightly concluded that from the processes filed by the Plaintiffs in this Suit, the sales

promotion carried out by the Plaintiffs have all the essential elements of a lottery scheme and that the promotion fell within the purview and amounts to lottery business within the prescription of the National Lottery Act, 2005. That the Plaintiffs can be classified as licensee under the National Lottery Act and the National Lottery Regulation, 2007, notwithstanding whether or not the Plaintiffs’ business is permanent activity or not.
He urged this Court to dismiss this appeal.

ISSUE 4
“Was the Honourable lower Court right when it failed to pronounce on the enforcement powers of the Defendant in spite of the vital nature of this issue before the Honourable Court.”

Learned Counsel to the Appellant submitted that a Court of law, before which a case for remedy is placed, has a duty to decide issues put before it and make just and fair pronouncement either way. He relied on the following cases:
(1) ABIODUN V. CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (PT. 448) 396.
(2) NDIKA V. CHIEJINA (2002) FWLR (PT 1117) 1203
(3) ONWE OKE & ORS V. NWAOGBUINYA NSCQR 93, 110 -111
(4) 7UP BOTTLING CO. LIMITED V. ABIOLA & SONS BOTTLING CO. LIMITED 6 NSCQR

(5) M.V. ARABELLA V. NAIC VOL. 34 (PT 2) NSCQR 1091, 1122 -1123

He urged this Court to hold that the enforcement and the sealing of the premises of the 2nd Plaintiff carried out by the Commission leading to the sealing up of the 2nd Plaintiff’s business operation is ultra vires the Commission. He urged this Court to grant the award of damages sought in the Original Summons and to decide in favour of the Appellants.

In response to this issue, Learned Counsel to the 1st Respondent submitted that there is a difference between “issues for determination” and reliefs sought in form of “declaration”. That where a party expects that a decision be given on particular facts or declarations, such party must formulate same as an issue for determination. He relied on the case of ALL STATES TRUST BANK PLC V. REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL & ORS (2018) LPELR – 44349 (CA).

That where Plaintiffs did not formulate an issue for determination on the matter, the declaration is as good as struck out, especially since the Honourable trial Court already ruled that the 2nd Respondent had the powers to

make regulations pursuant to Section 55 of the Act.

That since the Court had already considered the declaration pertaining to the issues raised, the trial Judge need not proceed to consider declarations in the case. He relied on the case of PAM V. INC. TRUSTEES ASSEMBLIES OF GOD NIG (2020) 14 NWLR @ page 400. That not considering the said issue does not amount to a miscarriage of Justice. He urged this Court to dismiss the appeal.

In his response to this issues, Learned Counsel to the 2nd Respondent submitted that it is mischievous to argue before this Honourable Court that the lower Court failed to make a pronouncement when in fact the basis for that decision was unequivocally upon the consideration of the two laws governing the 2nd Respondent.
He urged this Court to dismiss this appeal.

RESOLUTION OF ISSUES
The zenith of the tenacious argument of DR. O.O. ABAYOMI under issue 1 is that Section 50 (3) of the National Lottery Act does not require the service of a pre-action notice on the 3rd Respondent before an action could be commenced against it because 3rd Respondent is not within the category or contemplation of Section 50 (3) of the Act.

He urge the Court to rely on two canons of interpretation of statute viz: (a) Expressio Unius est exclusio atterius and (b) the literal Rule.

Now Section 50 (3) of the National Lottery Act 2005, provides as follows:
“No suit shall be commenced against a member of the Board, the Board of Trustees, the Director General of the Commission, the Secretary of the Trust Fund or any other officer or employee of the commission or the Trust Fund before the expiration of a period of one month after Written Notice of the intention to commence the suit shall have been served on the commission or the Trust Fund by the intending Plaintiff or his agent.”

From the clear wordings of the provisions of Section 50 of the National Lottery Act 2005 especially Subsection 3 thereof, the Appellant’s are unequivocally and statutorily enjoined to mandatorily give the 3rd Respondent pre action Notice to commence an action or suit against the 3rd Respondent. The word “shall” employed in the said subsection is a command, a compulsion to the Appellants to fulfill a condition precedent in order to consummate his action or suit against the Respondents particularly 3rd Respondent failing which the jurisdiction of the lower Court to adjudicate on this matter is put in abeyance or suspension. The Appellants

cannot side track it and they cannot avoid it.
1. CHIEF B. E. NNONYE VS. D. N.ANYICHIE (2005) 1 SCM 133 AT 145 -146;
2. AMADI v. NNPC (2000) 10 NWLR (PART 674) 76 AT 110 – 111 per KARIBI-WHYTE, JSC.
The whole essence of a pre-action Notice is to lay bare to an intending Defendant by the Notice required under a statute that the intending Plaintiff will sue him or her and the time stipulation between the service and commencement of the action is designed to afford the parties the likelihood of settling the matter in dispute without recourse to litigation.
It must be stressed here that National Lottery Trust Fund is a creation of Statute and being an institution whose statute presented a condition precedent before it could be sued, the Appellants in this case must comply with the condition precedent to clothe their action with competence otherwise the lower Court would lack the jurisdiction to entertain the action and by extension this Court will lack Appellate jurisdiction to entertain any appeal against the 3rd Respondent. See MOBIL PRODUCING NIGERIA UNLIMITED VS LASEPA & ORS (2002) 18 NWLR (PART 798) 1; (2002) LPELR – 1887 SC 17 where

AYOOLA, JSC said:
“There is no dearth of authorities as to the consequence of failure to serve pre-action Notice when such is made a condition precedent for the commencement of a Suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such a party challenged the competence of the suit.”
The lower Court was right in holding that the Appellants are under a legal duty to serve the 3rd Respondent pre-action Notice as provided and prescribed under Section 50 (3) of the National Lottery Act 2005.
Issue 1 is resolved against the Appellants.

Issues 2 and 3 have to do with whether the National Assembly can legislate on lottery or Lottery business having regards to the 2nd Schedule of the 1999 Constitution as amended. In virtually all the reliefs sought on the originating summons, the emphatic position of the Appellant is that the National Assembly of the Federal Republic of Nigeria has no vires or competence to make the National Lottery Act 2005 Regulation 2007 in that all the subject matter legislated upon in the Act(s) or laws are

within the legislative competence and powers of the State Houses of Assembly of Nigeria. In other words, all matters relating to lottery or businesses associated with it are within the legislative competence of State Legislative Assembly. In effect, the Appellants urged this Court to set aside the decision of lower Court dismissing the reliefs sought.

Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the House of Assembly of States.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that

other Law shall to the extent of the inconsistency be void.
(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not

enact any law, that ousts or purports to oust the Jurisdiction of a Court of law or of a judicial Tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.
See: Attorney General of Bendel State vs. Attorney General of the Federation (1981) NSCC (VOL 12) page 314 at 331 per FATAI – WILLIAMS CJN who categorically held that:
“While on this point, it is pertinent to state that the exercise of legislative powers by the National Assembly referred to in Section 4(8) above is not only part of the legislative process of two Houses, it is also related to the mode of exercising Federal legislative power clearly set out in Sections 54, 55 and 58 of the Constitution to which I have referred earlier. Having regard to those provisions, it is my view that the legislative process commences when a Bill is introduced and first read in any of the two Houses of the National Assembly and ends when that Bill has been passed into law by those Houses and assented to

by the President of the Federal Republic of Nigeria. (see Bribery Commissioner Vs Ranasinghe (1965) A. C. 172 (P.C) at pages 193, 195 and 197 and Gallant vs. The King (1949) 2 D.L.R. 425 at page 428. The “exercise of legislative powers by the National Assembly”, being part of the legislative process, starts when a Bill is first introduced in any of the two Houses constituting that august body and ends at the moment before it is assented to by the President. Since the exercise of such powers “shall be subject to the jurisdiction of Courts of law and of judicial/Tribunals established by law”. I am clearly of the view, and I do so hold, that this Court has jurisdiction to hear the plaintiff’s claims. The provisions of our Constitution on the point are clear and devoid of any ambiguity.”

The contention of the Appellants is that the National Assembly could not have utilized Items 62, 67 and 68 contained in the Second Schedule, Legislative Powers Part I on the Exclusive Legislative List to enact the National Lottery Act 2005.
The said items are as follows:
62. Trade and commerce, and in particular
(a) trade and commerce between Nigeria and

other countries including import of commodities into and export of commodities from Nigeria, and trade and commerce between the States;
(b) establishment of a purchasing authority with power to acquire for export or sale in world markets such agricultural produce as may be designated by the National Assembly;
(c) inspection of produce to be exported from Nigeria and the enforcement of grades and standards of quality in respect of produce so inspected;
(d) establishment of a body to prescribe and enforce standards of goods and commodities offered for sale:
(e) control of the prices of goods and commodities designated by the National Assembly as essential goods or commodities; and
(f) registration of business names.
67. Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.
68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”

Now the common approach to interpretation of the Constitution or Statute is to adopt the literal rule of interpretation by giving the words in the Constitution or the

Statute their ordinary or grammatical meaning in order to bring out the intention of the legislature.
It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution, the Court or Tribunal must construe or interpret the statute or the Constitution in order to bring out plainly the real intention of the Lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate design or purpose of the Constitution or statute that calls for interpretation. See:
1. HON. JAMES ABIODUN FALEKE V INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 117 F – H per KEKERE-EKUN, JSC who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences

are to be avoided. See: A.-G., Bendel State v. A.-G., Federation (1981) 10 SC 132 – 134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H: Adisa v Oyinwola & Ors (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. F.R.N (2016) LPELR – 40013 SC, (2016) 3 NWLR (Pt. 1500) 531.”
2. OCHOLI ONOJO JAMES, SAN V INEC & ORS (2015) 12 NWLR (PART 1474) 538 AT 588 D – G also per KEKERE-EKUN, JSC who had this to say –
“In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the

obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See Mohammed v Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v Ademola (2010) 15 NWLR (supra) @ 190 191 G – A; 205 D – F.”
(3) CHIEF (MRS) O. V. EHUWA VS ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 18 NWLR (PART 1012) 544 at 588:
“It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the

demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution, see Rabiu v. Kano State (1981) 2 NCLR 293: (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264.
The proper approach to the interpretation of clear words of a statute is to follow them in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning. This is generally also true of construction of constitutional Provisions if they are clear and unambiguous even when it is necessary to give them a liberal broad interpretation – see Fawehinmi v. I.G. of Police & Ors. 7 NWLR (Pt. 767) 606 at 678.”

It must also be noted that a person who alleges that an Act of the National Assembly or a legislature is invalid or made outside the legislative powers conferred on it by

the Constitution has the onus to prove the assertion. See CHIEF EMMANUEL OLATUNDE LAKANMI VS. PETER ADEBAYO ADENE & ORS (2003) LPELR- 1750 (SC) 1 at per KALGO, JSC who said:
“That the Court then came to the conclusion that the appellant as plaintiff had the onus of adducing evidence to prove the invalidity or illegality of the relevant Decrees or Edicts or the order of forfeiture which divested him of his right to the property concerned before it was sold to the respondent. I agree entirely with the Court of Appeal that in the particular circumstances of this case the onus of proof lay squarely on the appellant. It did not shift and the appellant, as plaintiff, has the duty to prove that the laws or notice which took away his property from him were ineffective, null and void before he can succeed.”

According to the Learned Counsel to the Appellants unless Lottery is otherwise put under the law making power of the National Assembly by any other provision of the Constitution, the Appellants submitted that National Assembly has no legislative power over it. It is also the submission of the Appellants that lottery business specifically involves the

sale of a ticket which enables the participant to participate in chance gave or draw. This according to Learned Appellants’ Counsel is not “Trade or Commerce” act rather it is the business of chance in search for money therefore Item 62 cannot accommodate the enactment of the National Lottery Act 2005.

From the various principles or canons of interpretation, violence will be done to item 62 especially the words “Trade” and “Commerce” if it should be construed in the narrow manner proposed or put forward by the Appellants. It will narrow down the broader interpretation a Court is expected to give to the provisions of the Constitution or instrument which call for interpretation. I am of the firm view that the words “Trade” and “Commerce” has narrowed down by the enumeration of the particular trade or commerce envisages under Items 62 (a) – (f) and are governed by the word “…particular” to emphasize the importance or premium placed on the types of trade so identified. This is without prejudice to other specie of trade or commerce, the National Assembly may decide to legislate upon as in the case of National Lottery Act 2005.

Now paragraphs 3-18 of the Affidavit in support of originating summons of the Appellants states as follows:
“3. That the 2nd Plaintiff was incorporated under the laws of Nigeria to carry out the business of manufacturing and production of alcoholic beverages for public consumption with the registered number of RC: 613.
4. The 2nd Plaintiff was incorporated on September 25, 1969 and has continued to do business effectively with goods standing, abiding by law and official regulations allowed under law.
5. That they i.e. the Plaintiffs believe the Federal legislature is not empowered to make law outside items listed in the Exclusive or Concurrent legislative list.
6. That lottery or Lottery business is NOT an item listed either in the Exclusive or Concurrent Legislative list.
7. That they, the Plaintiffs informed me and I verily believe them that the “National Lottery Act 2005” and the National Lottery Regulation 2007 being law and regulation not allowed to be made by the National Assembly are laws in violation of the Constitution of Nigeria 1999.
8. That the 2nd and 3rd Defendant in exercise of the wrong law, on 12/11/2018 descended

on the offices of the Plaintiff with Policemen, sealed off the offices located – at No, 19 Ajesa Street, Off Aminu Kano Crescent, Wuse II, FCT, Abuja, and Plot 413, Idu Industrial Layout; Opposite – Julius Berger Yard, Abuja, FCT as well as the corporate and sales offices in Lagos in purported enforcement of National Lottery Act.
9. That all the wrong acts of the 2nd Defendant against 1st and 2nd Plaintiffs is based on its claim that the 2nd Plaintiff is carrying out the business of National Lottery and consequently subject to its regulations.
10. Plaintiffs state that goods manufacturing companies engage in consumer “promo” common worldwide – and separate and distinct from the business of National Lottery’ and consequently NOT subject to the regulations of 2nd and 3rd Defendants as such ‘promo’ only attempt to enhance or expand sales.
11. That ‘consumer promo’ are usually organized on specific Product or non-money benefits for specific purposes, for specific time by specific producer of goods and is never an ongoing business requiring due registration within the contemplation of Nigerian Lottery Act, rather, ‘consumer promo’ are

often targeted as a reward for company consumers instead of the general public.
12. That the sealing or continued sealing of the premises of the 2nd Plaintiff with tremendous damaging consequences to her business has caused the Plaintiffs serious business loss, damaged its reputation and business standing nationally and internationally.
13. That inspite of the request made by the Plaintiffs to the 2nd Defendant not to seal or, continue to seal the 2nd Plaintiff’s premises, the defendant has refused, insisting on the legally unjustified payment of hundreds of millions of naira.
14. The 2nd Plaintiff states and I verily believe that it has no legal obligation to pay any monies to the 2nd Defendant nor acquire from it registration or permit to promote its products among its consumers.
15. That unlike the business of Lottery, the 2nd Plaintiff or any Manufacturing company member of the 1st Plaintiff never issue Lottery tickets in return for money paid with expectation of chance or hope of winning of huge cash only common with the business of lottery.
16. That promotional activities of manufacturing companies and in particular the 2nd

Plaintiff in this case relate solely to the products they manufacture and it’s always targeted to the consumers of their goods.
17. That the sealing of the 2nd Plaintiff’s premises represent continuing infringement of member companies of the 1st Plaintiff who are greatly in fear of serious damage to their business interest because of the acts of the 2nd Defendant.
18. That it has becomes necessary for the Court to intervene in the interest of law and justice.”

As can be seen above and reliefs claimed, the 2nd Appellant had in quest to sell its goods engaged in “Promo” business or “sales promotion” to consumers of its manufactured goods arising from purchase of 2nd Appellant’s products which is titled as “United we shine, win a Trip to Russia” goods meant for sale to the 2nd Appellants consumers/purchasers of its goods had a consumer ticket attached to any goods the Appellants Consumers or purchasers of its goods may purchase to enable such consumer or purchaser of 2nd Appellant’s goods to participate in the “promo” “UNITED WE SHINE WIN A TRIP TO RUSSIA”. There is no doubt all the 2nd Appellant was projecting to consumers or

purchasers of its goods is that such consumers or purchasers of its goods can use the ticket attached to the goods to be sold to the consumers to try their luck and have a chance to win free trip to Russia at the expense of the 2nd Appellant and for the benefit or enjoyment of any of the 2nd Appellant’s consumers of its goods or purchaser of same. The sale promotion embarked upon by the 2nd Appellant is no doubt within the category and compass of the word ‘lottery’. Lottery is defined in Black’s Law Dictionary 10th Edition on page 1090 as:
“1. A system of deciding who will get something; choosing of people’s name by chance.
2. A method of raising revenues, esp. State Government revenues, by selling tickets and giving prizes (usu. cash prize) to those who holds tickets with winning numbers that are drawn at random. Also termed lotto.”
Section 57 of the National Lottery Act 2005 defined lottery or lotteries to “include any game, scheme, arrangement, system, plan, promotional competition or device for the distribution of prizes by lot or chance, or as a result of the exercise of skill and chance or based on the outcome of sporting events or any

other device which the President may by notice in the gazette declare to be lottery and which shall be operated according to a licence.”
On the other hand, Section 10(2) of the National Lottery Regulations 2007 says:-
“Lotteries with short durations, periodic lifespan, seasonal existence and promotional lotteries of less than 10 years duration shall be operated pursuant to a valid permit granted by the Commission.”
The activities of the 2nd Appellant on what it called “sales promotion” or “united we shine win a trip to Russia” is a “business of Lottery” and is consequently subject to the regulatory powers of the National Lottery Regulatory Commission. For avoidance of doubts, the decision of the lower Court that the promotional activities of the Appellant fell under the purview of National Lottery Regulatory Commission and amounts to lottery business within the prescription of National Lottery Act 2005 cannot be faulted.

The National Assembly has the vires and legislative powers to legislate on matters pertaining to lottery or lotteries pursuant to Section 4 of the Constitution of the Federal Republic of Nigeria 1999 as amended and under

Items 62, 67 and 68 of the Second Schedule, Legislative Powers, Part 1 Exclusive Legislative List.
There is nothing in the Constitution and the Legislative List delimiting the powers of the National Assembly of Nigeria from enacting laws regulating or relating to lottery or lotteries or vesting Exclusive Legislative Powers in respect of lottery only in the House of Assembly of a State.
The scope of Legislative Powers of the National Assembly is wide enough and can under the legislative arrangements provided by the Constitution enact the National Lottery Act of 2005. See the opinion of late Legal Icon KAYODE ESO, JSC in the case of THE ATTORNEY-GENERAL OGUN STATE VS ALHAJA AYINKE ABERUAGBA & ORS (1985) LPELR – 3164 (SC) 1 AT 74 – 77 E – A per Eso, JSC who said:-
“The American Constitution, as I have earlier pointed out deal only with Commerce while our Constitution talks about “Trade and Commerce”. How much difference does the addition of the word “Trade” make to “Commerce”.
Trade simplifies, is a line of work or form of occupation pursued as a business or calling. but as Latham C. J said in Bank of New South Wales v. Commonwealth

(1948) 76 C.L.R. 1 the word “trade” is used in several senses. The learned Chief Justice in trying to unravel whether Banking is trade or commerce said –
“A carpenter is “a carpenter by trade”. But no one would say that the craft of carpentry – as distinct from the sale and purchase of its products is trade or commerce.”
It was the issue of the construction of Section 92 of the Australian Constitution that arose in that case. The section has provided that:
“Trade commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”
It is in regard to the word ‘Trade” in this provision that the learned Chief Justice has said:-
“The trade and commerce to which Section 92 relates is “trade and commerce among the States, whether by means of internal carriage or ocean navigation. ”
This is relating “trade and commerce” together to commercial intercourse as, the American Supreme Court had done in Gibbons v. Ogden (supra).
On the same token, I form the view that the words “trade and Commerce” in Item 61 of the Exclusive Legislative List are to be taken together and

they both must mean commercial intercourse. In other words, I am of the firm view that the Federal Government has exclusive jurisdiction to legislate on commercial intercourse (trade and commerce) as distinct from trade specifically used in common parlance of a trades-man or carpenter, a road mechanic or a garri manufacturer. It means therefore that the commercial intercourse, involves movement of commerce, as defined whether to or from foreign countries whether they move interstate or intrastate. But it must be commercial intercourse. And they must move.
The words “and in particular” in the item 61 aforesaid to my mind can only be words of emphasis and not limitation. There is no ambiguity about them which would lead to a cannon of interpretation other than the plain and literal meaning. I agree with Justice Black of the United States Supreme Court who in United States v. South-Eastern Underwriters Association 322 U.S. 533 said-
“Ordinarily, Courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in common parlance of the times in which the Constitution was written” (see p. 539 ibid.)

When the 1979 Constitution – was written, the Constitution drafting Committee had limited the Federal powers to –
“Trade and commerce between Nigeria and other countries and commerce among the States.” – see Item 62 of the Exclusive Legislative List appended to the Draft.”
On what a Residual Legislative Powers encapsulates, see the case of A.G. OGUN STATE V ABERUAGBA & ORS (1985) 1 NWLR (PART 3) 395 at 405 C- D per BELLO, JSC later CJN of blessed memory who said:-
“A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of Government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”
The promo or sales promotion vide attachment of ticket or coupon to consumers/purchasers of 2nd

Appellant’s goods to enable them participate in chance game to win a trip to Russia was and is a trading business and it is within the legislative competence of National Assembly of Nigeria to regulate under the aegis of Items 62, 67 and 68 of the Exclusive Legislative List and other enacting powers conferred upon the Federal Legislature vide Section 4 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
Issues 2 and 3 are hereby resolved against the Appellants.

Issue 4 has to do with whether the lower Court was right when it failed to pronounce on the enforcement powers of the Defendant in spite of the vital nature of the issue before the Honourable Court according to Appellants’ learned Counsel.

The complaint under this issue is that the lower Court failed to determine questions 7 and 10 on the originating summons which are:
“7. Whether the sealing up of 2nd Plaintiff office at No. 19 Ajesa Street, off Aminu Kano Crescent Wuse 2, plot 413 Idu Industrial layout opposite Julius Berger yard, Abuja FCT and 2nd Plaintiff’s Nigeria Corporate Headquarters at Iganmu House, Lagos is not an infringement of the right of the 2nd

Plaintiff to freely carry on business and entirely ultra – vires the powers of the National Lottery Commission.
10. A declaratory judgment that the Defendants have no power of enforcement by sealing up the premises of the 2nd Plaintiff or any company member of the 1st Plaintiff in purported execution of the National Lottery Act.”

The contention of the Appellants is that 2nd and 3rd Respondents have no enforcement power of Police to seal Appellants premises.

It is true that a Court must determine all questions submitted to it for adjudication as failure so to do may sometime result in denial of fair hearing and miscarriage of justice to the party concerned.
However, where it’s discernible from the proceedings of the Court that all issues have been covered or subsumed under another issue decided or considered by the Court, the complaint will fail. See:
1. HONEYWELL FLOUR MILLS PLC VS ECOBANK NIG. LTD (2019) 2 NWLR (PART 1655) 35 AT 46 C – H TO 47 A per SANUSI, JSC who said:-
“As could be gleaned from the brief of argument filed by the respondents, it can be deduced that he conceded that the lower Court actually failed to make

pronouncements on some or all the issues highlighted above as complained of by the appellant in the latter’s brief of argument. The learned respondent’s counsel however rightly argued that where an issue is subsumed by another issue, it is no longer necessary to make any pronouncement on the subsumed issue. See Adebayo v. A.G., Ogun State (2008) 2-3 SC (Pt. 11) 50; (2008) 7 NWLR (Pt. 1085) 201; A.I.B. Ltd v. IDS Ltd & 2 Ors (2012) 5 SC (Pt. 11) 112; (2012) 17 NWLR (Pt. 1328) 1. Similarly, added the learned respondent’s counsel, where issues are not validly raised, the Court is not bound to make any pronouncement on it. He also as a concession of the complaint by the appellant’s counsel, admitted or agreed that the lower Court deliberately withheld its pronouncement on the issues raised and he argued, that the lower Court was faultless in withholding its pronouncement, as some of the issues complained of are mere academic issues which were not the crux or subject matter of the appeal. See Julius Berger Nigeria Ltd v. Femi (1993) 5 NWLR (Pt. 295) 612; Adelaja v. Alade (1999) 4 SC 51; (1999) 6 NWLR (Pt. 605) 544. There is no gain saying that the lower Court

had actually failed to make pronouncement on the issues highlighted above which were competently raised before the lower Court by the appellant. It is not correct to say that those issues were not important, crucial or apt for the determination of the case presented before the lower Court for determination by the appellant. Also on issues Nos. 5, 6 and 7 which the lower Court failed to consider and decide one way or other, it will also not be correct to say that they were subsumed by any of the other issues the lower Court made pronouncement on. The said issues which it failed to pronounce on which it glossed over are in my view, distinct and independent issues each of which stands on its own.
The Court below did not give convincing or cogent reason why it failed to make pronouncements on them except that it was “deliberate” as the learned counsel for the respondent stated in their brief of argument which said reason was not convincing at all.
It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7UP Bottling Company v. Abiola Sons Bottling Company Ltd. (2001) 6 SC

73; (2001) 13 NWLR (Pt. 730) 469. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent.”
2.ALHAJI MOHAMMED KARAYE VS LEVI WIKE & ORS (2019) 17 NWLR (PART 1701) 355 AT 371 H TO 372 A – C per EKO, JSC.

I am of the view that the learned trial Judge dealt with the issues raised even though questions 7 and 10 on power of enforcement of the law was not distinctly considered. Pages 275 – 281 of the record show that the trial Judge ruled against the Appellants on the entire suit and refused ALL the reliefs sought by the Plaintiffs.

In any event, having found that the laws were legally and legitimately enacted by the National Assembly of Nigeria, the 2nd Appellant is bound to comply and conform with the provisions of the said laws because its sales promotions tantamount to Lottery business within the penumbra of National Lottery Act and Regulatory law made thereunder.
Issue 4 is also resolved against the Appellants.

In the result, the Appellants appeal lacks

merit and it IS HEREBY DISMISSED in its entirety.
The Judgment of the Federal High Court (Abuja) Coram HON. JUSTICE TAIWO O. TAIWO delivered on 11th March, 2019 IS HEREBY AFFIRMED.
No order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in complete agreement with the reasoning and resolution of all issues distilled for determination in this appeal.
I have nothing more to add and I abide by the orders made therein.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

OLATUNJI O. ABAYOMI, with him, OLALEKAN ADESINA For Appellant(s)

ADEDAYO OGUNDELE, P.S.C. FMOJ, with him, IBUKIN OKOOSI State Counsel – for 1st Respondent
DEJI ADEYEMI, with him, O. OKECHUKWU – for 2nd Respondent
MRS. C. U. OKAFOR (Legal Adviser) – for 3rd Respondent For Respondent(s)

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