UAC OF NIGERIA PLC & ORS V. ATTORNEY GENERAL OF LAGOS STATE & ORS (2010)

UAC OF NIGERIA PLC & ORS V. ATTORNEY GENERAL OF LAGOS STATE & ORS

(2010)LCN/3547(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of January, 2010

CA/L/928/2008

RATIO

PROCEDURE: WHEN SHOULD A PRELIMINARY OBJECTION TO THE COMPETENCE OF AN APPEAL BE CONSIDERED

It is settled law that where a preliminary objection to the competence of an appeal is raised, same must be considered first before the appeal is heard. In Osun State Govt. V. Dalami (Nig) Ltd (2003) 7 NWLR (Pt.818) n at 93 paragraphs D-E, this Court, per Onalaja, JCA said:-

“As first respondent raised by notice of preliminary objection as to the competence of grounds 8 and 9 in appellant’s grounds of appeal, it is trite law that the notice of preliminary objection shall be taken first.”

See also Odu v. Agbor-Hameson (2003) 1 NWLR (Pt. 802) 624 at 637 paragraph B-C. PER PAUL ADAMU GALINJE, J.C.A

INTERPRETATION: INTERPRETATION OF STATUTES USING THE LONG TITLE

On the issue of the long title of an enactment being used to discover the function purpose and scope of enactment, i will refer to the judgment of Karibi-Whyte, JSC in the case of Bello v. Attorney General of Oyo State (Supra) at page 871 paragraphs D-G, where his Lordship held:-

“A long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction. Thus in this case, the general scope of the tort law stated in the long title is inter alia to provide for the compensation of the families of deceased persons killed by accident. However, in determining the meaning of the provisions of the law, it is to the section construed that the interpreter should first seek assistance. Where the meaning of the words used in the section is clear and unambiguous, that meaning governs: Resort is only to be had at the long title to resolve ambiguity.

It is not permissible to look at the scope of the long title to modify the interpretation of the plain words of the section. It is a well settled principle of the interpretation of statutes that the statute is to be read as a whole.” (Underlining is for emphasis)

Clearly, the position of the Apex Court in the case of Bello v. Attorney General of Oyo State (Supra) is that where interpretation of a statute can be found in the section of the law, and there being no ambiguity, it is not permissible to search for the function, purpose and scope of the statute from the long title. PER PAUL ADAMU GALINJE, J.C.A

WORDS AND PHRASES: MEANING OF ADVERTISING

Advertising is defined by the Black’s Law Dictionary, Eight Edition at page 59 as the action of drawing the public’s attention to something to promote its sale. In Edwards v. Lubbock County Tex. cw. App. 33 S. W. 2nd 482 at 484, Advertisement is defined as a notice given in a manner designed to attract public attention.

Advertisement is therefore an information communicated to the public or to an individual concerned, as by Land bills, newspaper, television, billboards, radio or by any means drawing the attention of the public or any individual concerned to something in order to promote its sale. PER PAUL ADAMU GALINJE, J.C.A

WORDS AND PHRASES: MEANING OF HOARDING

Hoarding is defined by the Oxford Advanced Learners Dictionary 7th Edition as follows:-

“1. a large board on the outside of a building or at the side of the road, used for putting advertisement on.

a temporary fence made of boards that is placed around an area of land until a building has been built.” PER PAUL ADAMU GALINJE, J.C.A

JUSTICES

M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

BODE RHODES VIVOUR Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

Between

UAC OF NIGERIA PLC & ORS – Appellant(s)

AND

ATTORNEY GENERAL OF LAGOS STATE & ORS – Respondent(s)

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Mrs. Oke, J. of the High Court of Lagos State which was delivered on the 22nd of September, 2008. By an originating summons dated 14th of September, 2007, the 1 Appellants had raised some questions for determination by the lower Court and had in addition made sundry claims against the Respondents. After a thorough consideration of the questions and the claims aforesaid, the lower Court found no merit in both and therefore dismissed the claims. These questions and claims are found at pages 2-6 of the record of this appeal. They are hereunder reproduced as follows:-

“1. Whether the Lagos State House of Assembly can prescribe for the Local Governments in Lagos State, functions that derogate from, or lesser or fewer than those prescribed by the 1999 Constitution in its section 7(5) and spelt out in the 4th Schedule to the 1999 Constitution?

2. Whether the functions of controlling and regulating outdoor advertising and hoarding can be carried out concurrently by the Local Government Councils in Lagos State on one hand and the Lagos State Signage and Advertisement Agency on the other and, if not, which one take precedence?

3. Whether the Lagos State Structures for signage and advertisement permits in Lagos State?

4. Whether the Lagos State Structures, for Signage and Advertisement Law 2006 being “a Law to provide for the regulation of outdoor structures for the display of signage, hoarding and advertisement in Lagos State and for connected purposes” conflicts with section 36(j)(i) of the Local Government (Administration) Law 1999 read together with section 7(5) paragraph (1)(k)(i) of the 4th Schedule to the 1999 Constitution and, if so, which of the two prevails?

5. Whether the Lagos State Signage and Advertisement Agency can control and regulate as well as issue demand notices for and receive payments for signage and advertisement permits in Lagos State?

6. Whether the 2nd and 3rd Defendants can validly enact “a Law to provide for the regulation of outdoor structures for the display of signage, hoarding and advertisement in Lagos State and for connected purposes” as they did through the enactment of the Lagos State Structures for Signage and Advertisement Law 2006?

7. Whether the 4th-23rd Defendants can validly enter into any memorandum of understanding or any other form of arrangement by which they can empower or delegate the power to control or regulate outdoor advertising and hoarding or transfer the power to collect revenue in respect of signage and advertisement to the Lagos State Government or any agency of, or any person appointed, nominated or selected by the Lagos State Government?

8. Whether the Lagos State Government, acting through its agents or otherwise, can demolish or forcibly remove the claimant’s structures for signage and advertisement?

AND FURTHER TAKE NOTICE that the Claimants are seeking the following reliefs:

1. A DECLARATION that by virtue of section 7 subsection (1) and (5) of the Constitution of the Federal Republic of Nigeria 1999, the Lagos State Government is required to enact a law conferring on the Local Government Councils in the State all the functions specified in the Fourth Schedule to the Constitution, and specifically the control and regulation of among others outdoor advertising and hoarding.

2. A DECLARATION that the Lagos State Government can neither make any law to derogate from the functions of Local Governments specified in the Fourth Schedule to the Constitution nor confer on such Local Governments in the State functions that are less than those specified in the Fourth Schedule to the Constitution.

3. A DECLARATION that the Lagos State Government acting through the 2nd and 3rd Defendants, has conferred on all the Local Governments Councils in the State the function and hence, the power to control and regulate advertising and hoarding in their respective local governments vide section 36 (j) of the Local Government (Administration) Law of Lagos State.

4. A DECLARATION that beyond conferring the functions to regulate outdoor advertising and hoarding on the Local Government councils in the State, the Lagos State Government cannot regulate and or control outdoor advertising and hoarding.

5. A DECLARATION that the only way by which a Local Government in Lagos State can exercise the functions of controlling and regulating advertising and hoarding is for each Local Government to exercise its legislative powers through the passage of a bye-law or by-laws which could in turn be implemented and/or enforced by the Executive Authority of each Local Government Council.

6. A DECLARATION that the Lagos State Structures for Signage and Advertisement Agency Law 2006 read together with the Structures for Signage and Advertisement Agency (Amendment) Law 2007 is a law made to control and regulate outdoor advertising and hoarding in Lagos State.

7. A DECLARATION that the 1st, 2nd and 3rd Defendants cannot legislate to control and/or regulate outdoor advertising and hoarding in Lagos State as such power is constitutionally required to be conferred on Local Government Councils of the State.

8. A DECLARATION that the enactment by the 2nd Defendant and subsequent assent by the 3rd Defendant to the Lagos State Structures for Signage and Advertisement Law 2006 is ultra vires the powers

and functions of the 2nd and 3rd Defendants as it violates the provisions of section 7 subsections (1) and (5), and the Fourth Schedule to the Constitution, as well as sections 36 (j), 38 and 39 of the Lagos State Local Government (Administration) Law 1999 No.7.

9. A DECLARATION that the 4th to the 23rd Defendants lack the competence and capacity to enter into any memorandum of understanding either severally or jointly to empower or delegate to the Lagos State Structure for Signage and Advertisement Agency the control and regulation of outdoor structures, signage, hoarding and advertisement including the collection of revenue in respect of such outdoor structures, signage, hoarding and advertisement either on behalf of the Local Government Councils in the State or on behalf of the Lagos State Government (whether alone or in conjunction with the Local Governments in the State as beneficiaries).

10. A DECLARATION that by virtue of section 7 subsection (1) of the Constitution the control and regulation of outdoor advertising and hoarding are functions not delegable, but constitutionally mandatory to be conferred upon and exercised by Local Government Councils.

11. A DECLARATION that the mode by which outdoor advertising and hoarding can be controlled or regulated is through the passage of bye-laws and if the Local Government Councils find it necessary to delegate any of its functions, this it can only do through such bye-laws.

12. A DECLARATION that the Structures for Signage and Advertisement Agency Law 2006 Law 2006 No.9, and the Structures for Signage and Advertisement Agency (Amendment) Law 2007 are inconsistent with the provisions of section 7 subsections (1) and (5), and the Fourth Schedule to the Constitution, and therefore unconstitutional, null and void.

13. A DECLARATION that the demand notices served on the Plaintiffs for payment for the issuance of Signage and Advertisement Permits are invalid, improper, unconstitutional, ultra vires, null and void.

14. A DECLARATION that the demolition and forcible removal of the signage and advertisement boards of the Plaintiffs, by the 1st, 2nd and 3rd Defendants whether by themselves, agents or proxies is illegal, unconstitutional, ultra vires null and void.

15. A DECLARATION that the Plaintiffs are not liable to payment for the Signage and Advertisement Permit as demanded by the Lagos State Signage and Advertisement Agency.

16. AN ORDER of injunction restraining the 1st to the 23rd Defendants either severally or jointly, by themselves or through their agents, assigns delegates, or consultants whatsoever and however described, designated, titled, styled or named from implementing, administering or in anyway enforcing the Lagos State Structures for Signage and Advertisement Agency Law 2006 NO.9, and the Structures for Signage and Advertisement Agency (Amendment) Law 2007 against the Claimants, either severally or jointly, or any of their agents, assigns, delegates or consultants.

17. AN ORDER setting aside the demand notices served on the Plaintiffs for the payment of Signage and Advertisement Permit.

18. AN ORDER restraining the 1st, 2nd and 3rd Defendants whether by themselves, agents or proxies from making demands in any form whatsoever on the Claimants for the payment of Signage and Advertisement Permits on their Signage and Outdoor Advertisements.

19. AN ORDER of payment injunction restraining the 1st, 2nd and 3rd Defendants whether by themselves, agents or proxies from harassing threatening the Claimants, their staff and customers, and making for demolition or demolishing the Signage and Outdoor Advertisements of the Claimants with a view to enforcing the payment for the permit for signage and advertisement.”

The Appellants are unhappy with the decision of the lower Court. Being aggrieved, they have brought this appeal. Their notice of appeal dated 2nd October, 2008 and filed on the 3rd of October, 2008 contains eleven grounds of appeal.

In line with the relevant rules of this Court parties filed their respective briefs of argument. The Appellants distilled four issues for determination of this appeal at page 4 of their brief of argument dated 25th February, 2009 and filed on the 26th February, 2009. These issues are reproduced hereunder as follows:-

“1. Whether the Lagos State structures for signage and Advertisement Law 2006 No.9 is a law for the control and regulation of out-door advertising and hoarding.

2. Whether the Lagos State structures for Signage and Advertisement Law 2006 No.9 is inconsistent with Section 7 (5) of the 1999 Constitution read together with paragraph 1(k)(i) of the 4th Schedule to the constitution.

3. Whether the control and regulation of outdoor advertising and hoarding is an aspect of physical planning and control within the con of the provisions of the 1999 Constitution relating to the division of legislative powers among the different tiers of government in Nigeria as to bring the control and regulation of outdoor advertising and hoarding within the exclusive legislative competence of the House of Assembly of Lagos State.

4. Whether it is only the local government councils that have the legal right to question the validity of a law which erodes the functions vested in the local government councils by the constitution.”

In reaction to the Appellants’ brief of argument, the Respondents filed a brief of argument on the 12th of June 2009, but deemed filed on the 1st of July 2009. At page 1 of the Respondents’ brief, the 1st and 2nd issues as formulated by the Appellants are adopted. In addition, the Respondents formulated a third issue which reads as follows:-

“Whether the control and regulation of outdoor structures to be used for display of signage and advertising is an aspect of urban physical planning and Development Control within the con of the Constitution of Nigeria 1999.”

After having raised the last issue for the determination of the appeal, the Respondents went on to raise a notice of preliminary objection to the competence of ground 9 in the Appellant’s notice of appeal and issue No.4 in the Appellants’ brief of argument on the ground that they do not relate to any ratio of the decision of the lower Court. I shall consider the argument on the preliminary objection anon.

However, the Appellants filed a reply brief on the 2nd of July, 2009.

Before I consider the submissions made by counsel for the respective parties, I will like to recount briefly the transactions that gave rise to the case at the lower Court which I think has been admirably set out at paragraphs 2.01-2.09 of the Appellants brief of argument. The first Appellant is a Public Limited Company quoted on the Nigeria Stock Exchange with operations spreading all over the country, and in particular, Lagos State. The 2nd, 3rd, 4th and 5th Appellants are subsidiaries of the 1st Appellant. Each of the Appellants uses signage and advertisement for the promotion of their respective businesses within and outside Lagos State. At different times in 2007, the operatives of the Lagos State Signage and Advertisement Agency (LASAA), an agency formed pursuant to the Lagos State structures for Signage and Advertisement Agency Law 2006 damaged, destroyed and/or removed the signage and Advertisement boards of the various Appellants at or from their places of business in several parts of Lagos State despite series of oral and written protests by the Appellants.

It is against this background that the Appellants filed the originating summons at the lower Court in which they challenged the constitutional validity of the Lagos State Signage and Advertisement Agency Law 2006 under which the officers and agents of the Lagos State Signage and Advertisement Agency claimed to have the authority to demolish, damage and/or remove the Signage and Advertisements Board belonging to the Appellants.

Mr. Lawal Pedro (SAN) the learned solicitor General, who settled the Respondents brief of argument, raised a preliminary objection to the competence of ground 9 and the issue formulated there from at page 1 of the Respondents’ brief of argument. The learned solicitor went on to argue the objection at page 1 paragraph 3.2 to page 2 paragraphs 3.3, 3.4 and 3.5 of the brief. It is settled law that where a preliminary objection to the competence of an appeal is raised, same must be considered first before the appeal is heard. In Osun State Govt. V. Dalami (Nig) Ltd (2003) 7 NWLR (Pt.818) n at 93 paragraphs D-E, this Court, per Onalaja, JCA said:-

See also Odu v. Agbor-Hameson (2003) 1 NWLR (Pt. 802) 624 at 637 paragraph B-C.

The notice of preliminary objection and argument there from which were incorporated in the Respondents’ brief of argument was duly served on the Appellants who filed a reply brief. However, the Appellant did not react to the issues raised in the preliminary objection in their reply brief. A reply brief as provided for by Order 17 rule 5 of the Court of Appeal Rules 2007 is intended to enable the appellant deal with new points arising from the respondent’s brief or argument. A notice of preliminary objection posted in the Respondent’s brief clearly qualifies as a point deserving of the Appellant’s attention in the reply brief. Failure to answer thereto only leads to the conclusion that the Appellant is not serious and has conceded to the points so raised.

In the instant appeal, I hold that the Appellant has conceded to the issues raised in the Respondents’ preliminary objection. Where there is no objection to the preliminary objection, the requirement that a Respondent who has incorporated argument in respect of this preliminary objection into his brief of argument must seek for the leave of the Court to move that preliminary objection before the hearing of the appeal in line with the decision in Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 and Nsirim v, Nsirim (1990) 3 NWLR (Pt. 138) 285, does not apply. The Appellants having admitted that ground 9 in the notice of appeal, issue 4 and the argument canvassed thereupon are incompetent, same are hereby struck out.

I am now left with the Appellants issues 1-3 and the sale issue distilled by the Respondents. Having read through the grounds of appeal and the briefs filed by the parties. I am of the firm view that the only issues calling for the determination of this appeal are the Appellants’ 1st and 2nd issues. The 3rd Appellant’s issue deals with the provision of Town Planners (Registration) Act, a law that was not challenged in the proceedings of the lower Court. I will now proceed to consider the two issues aforesaid.

The question that begs for answer on issue one is whether the Lagos State structures for Signage and Advertisement Law 2006 is a law made for the control and regulation of outdoor advertising and hoarding?

For the Appellants it is argued that the law is principally and exclusively designed and enacted to control and regulate outdoor advertising and hoarding throughout Lagos State. This argument according to professors Olawoyin and Akanle, learned counsel who settled the Appellants brief of argument, is underscored by certain features of the said law which they identified inter alia as follows:-

(a) The long title of the law.

(b) The main or principal objects of the law and the means by which it is sought to carry out those objects.

(c) The functions vested in the agency, that is, the Signage and Advertisement Agency created by the law for the administration of the law.

In their argument on the first feature, learned counsel submitted that the long title of the law clearly establishes beyond reasonable doubt that the intention of the Lagos State legislature in enacting the law is that its focus would be the regulation of outdoor structures for the display of signage, hoarding and advertisement which they say tallies with the language of the constitutional provision in paragraph 1(k)(i) of the 4th Schedule to the 1999 Constitution which vests the control and regulation of outdoor advertising and hoarding in the local governments.

In a further argument, learned counsel submitted that the irresistible conclusion to be drawn from the language and wordings of the long title is that the said law is undoubtedly a law to control and regulate outdoor advertising and hoarding. Still in argument, learned counsel cited several authorities in support of their submission that even though long title of an enactment is not an operational part of that enactment, long title has long been used to discover the function, purpose and scope of enactment. These authorities as listed by learned counsel for the Appellants are Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828; Vacher & Sons Ltd v. London Society of Compositors (1913) AC 107 at 128; National Telephone Co. Ltd HM Postmaster-General (1913) AC 546, 560; Fenton v. J. Thornley & Co. Ltd (1903) AC 443 at 447.

In the instant case, Mr. Lawal Pedro the learned solicitor General of Lagos State has at page 3, paragraph 4.1.3 of the Respondents brief of argument submitted that the purport of the Lagos State structures for Signage and Advertisement Agency Law, 2006 is expressed in the function of the Agency established by the law at S. 3(1). Learned Solicitor-General listed those function and contended that the functions of the Agency is meant to control and regulate outdoor structures, for display of signage and advertisement and it is not intended to control and regulate outdoor advertising and hoarding as provided for in paragraph 1 (k)(i) of the 4th Schedule to the 1999 Constitution of the Federal Republic of Nigeria Paragraph 1(k)(i) of the 4th Schedule to the 1999 Constitution of Nigeria provides as follows:-

“The main functions of a local government council are as follows:-

k(i) control and regulation of out-door advertising and hoarding.”

Hoarding is defined by the Oxford Advanced Learners Dictionary 7th Edition as follows:-

“1. a large board on the outside of a building or at the side of the road, used for putting advertisement on.

2. a temporary fence made of boards that is placed around an area of land until a building has been built.”

From the definition of advertising and hoarding, it is very clear that paragraphs 1 (k)(i) of the 4th Schedule to’ the Constitution empowers the local government to control and regulate advertising and the structures upon which such advertisements are placed.

Hoarding is certainly a structure upon which advertisement is placed.

Section 3(1) of the Lagos State Structures for Signage and advertisement Agency Law, 2006 is hereunder reproduced as follows:-

“The functions of the Agency shall be to:-

(a) control outdoor structures to be used for signage and advertisements;

(b) issue licences and permits for the construction and placement of outdoor structures in any part of the state;

(d) control the number, size and location of outdoor structures;

(e) ensure that outdoor structures are soundly and carefully designed, erected, modified, maintained or removed when no longer in use to avoid potential damage to lives and property;

(f) ensure that outdoor structures are compatible with surrounding land uses and environment and further ensure the beautification of the immediate surrounding and vicinity of the advertisement;

(g) control the pasting and display of posters on public structures and highways;

(h) organize the procedure to regulate the ownership and operation of outdoor structures for the purpose of signage or advertisements under specific regulations as contained in this law;

(i) reject, revoke or modify a permit if found to be in violation of any of the provisions of this law or the conditions for its grants;

(j) prepare and keep all records related to the issuance and denial of outdoor structures permit as well as appropriate general records;

(k) monitor and inspect through its monitoring unit any outdoor structure and verify its compliance with this law; and

(l) establish a data base of all the outdoor structures used for signage and advertisement, their owners and operations as well as their location and the reason for the operation.”

The functions assigned to the Agency have clearly spelt out the purpose and scope of law herein. There is therefore, no need to search for the purpose and the scope of the law from the long title, although the long title could be employed to further enhance the scope of the law as set out S.3(1).

I have defined hoarding elsewhere in this judgment. It is therefore my firm view that hoarding by its definition is a structure. Structure is defined by black’s Law Dictionary, 8th Edition at page 1464 in the following words:-

“Any construction, production or piece of work artificially built up or composed of parts purposefully joined together.”

At page 220 of the printed record, of this appeal, the learned trial Judge held that the 1999 Constitution did not give the Local Government the function of controlling the structures for signage and advertisement. I do not agree with this position. Clearly paragraph 1(k)(i) of the 4th Schedule of 1999 Constitution gives control and regulation of outdoor advertisement and hoarding to Local Government. Whether the large board on the outside of a building or at the side of the road used for putting advertisement on is referred to as hoarding or structure as a matter of semantics. As far as their definition goes, they are the same thing. For this purpose, I agree with the learned counsel for the Appellants that the functions vested in the Agency are those ones relating to the control and regulation of outdoor advertising and hoarding. The Lagos State structures for Signage and Advertisement Law 2006 is therefore in my view a law for the control and regulation of out-door advertising and hoarding, and so I hold. This issue is therefore resolved in favour of the Appellant and the grounds of appeal upon which it distilled are hereby allowed.

Now I will take on the 2nd issue for determination. Even at the risk of repetition, I wish to reproduce this issue as follow:-

“Whether the Lagos State structures for Signage and Advertisement Law 2006 No.9 is inconsistent with Section 7 (5) of the 1999 Constitution read together with paragraph 1(k)(i) of the 4th Schedule to the constitution.”

Learned counsel for the Appellants submitted In argument that any law made by the government of a state to control and regulate outdoor advertising and hoarding is a law made in violation of Section 7(5) and 4th Schedule to the 1999 Constitution.

According to the learned counsel, the power of a state government starts and ends with the conferment by law upon Local Government Councils, those functions that are set out In the 4th Schedule to the constitution and this power has already been exercised by the Lagos State Government when it enacted in 1999, the Local Government (Administration) Law 1999 NO.7.

In a further argument, learned counsel submitted that by the language of Section 7 (5) of the 1999 Constitution, the State Government is not permitted to subtract from or omit any of the functions listed in the 4th Schedule. Still in argument, learned counsel submitted that an attempt by the State Government, on its own, to exercise the functions of control and regulation of outdoor advertising and hoarding as distinct from the conferment upon Local Governments, the functions of “control and regulation of outdoor advertising and hoarding” as it has done through the enactment of the LASAA Law is ultra vires, inconsistent with and a negation of Section 7 (5) and the 4th Schedule to the Constitution which by virtue of Section 1(3) of the constitution is void to the extent of its inconsistency. In aid learned counsel cited Adisa v. Oyinwola & Ors (2000) 10 NWLR (Pt. 674) 116. Finally on this issue, learned counsel submitted that the LASAA law is a clear attempt by the respondents to take away the constitutional powers vested in the Local Government Councils and transfer the same to a separate Agency of the Lagos State Government and, going by the compelling authority of the Supreme Court, the said law must necessarily be made void to the extent of its inconsistency with the 1999 Constitution.

In conclusion, learned counsel urged this Court to hold that the LASAA Law of 2006 enacted by the Lagos State Government is void as it is inconsistent with Section 7(5) of the 1999 Constitution read together with paragraph l(k)(i) of the 4th Schedule to the said constitution.

Section 7(5) of the 1999 Constitution of Nigeria provide as follows:-

“The functions to be conferred by law upon local government councils shall include those set out in the Fourth Schedule to this Constitution.”

Based on the provision of the Section 7(5) of the Constitution, the Lagos State House of Assembly promulgated the Local Government (Administration) Law 1999 NO.7 in which it conferred among other powers in schedule 4 of the 1999 Constitution, the power of control and regulation of outdoor advertising and hoarding on the Lagos State Local Government Councils.

Part 11, Section 4(1) – (7) of the 1999 Constitution has appropriated powers to the National and State Houses of Assembly to make laws for the peace, order and good government of the Federation and the States respectively. The powers so appropriated have delimited areas where each assembly is empowered to make law. The States Houses of Assembly are empowered to make laws for the control of those matters under concurrent list and they have exclusive powers to make laws with respect to the control of all those matters not included in both the exclusive and concurrent legislative lists. There is no such provision in respect of Local Government Councils for their functions, the Local Government depends on the law validly made by the State House of Assembly. There is clearly no provision prohibiting the state from participating or controlling some of the functions enumerated under Schedule 4 of the Constitution to its organs.

If the Constitution expressly prohibits the State from making laws on the items on the exclusive legislative list, then the same constitution would have barred the State from controlling those areas it assigned to the Local Government Councils. For example, paragraph 1 (f) assigns the function of construction and maintenance of roads, street, etc., to the Local Governments Councils. But various State Governments are carrying on road construction throughout the country. This is where I agree with the learned solicitor general that the power of control of all the items contained in Schedule 4 of the 1999 Constitution are shared concurrently between the state governments and the Local government Councils. This agreement is further buttressed by the decision in the authority of the Attorney General of Lagos State v. The Attorney General of the Federation (2003) 6 SC (Pt. 1) 24 at 56-57, where the Supreme Court held:-

“A careful perusal and proper construction of Section 4 (of the 1999 Constitution) would reveal that the residual powers of Government were vested in the State. By residual legislative powers within the con of section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative lists and those matters 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 matters.”

The provision of Section 7(5) of the 1999 constitution is not exhaustive. The section says that the functions to be conferred by law upon Local Government Councils shall include those set out in the 4th Schedule to this constitution. This clearly shows that the state can give more functions to the Local Government Councils and these powers could include even the ones being handled by the State. “If the Constitution had intended to prohibit the State from performing those functions enumerated under Schedule Four of the Constitution, it could have clearly said so, as it will be dangerous to import into the Constitution that which is not included. The case of Adisa v. Oyinwola & Ors (2000) 10 NWLR (Pt. 674) 116, is inapplicable in the instant case, as the LASAA law did not take away, not did it intend to take away the functions assigned to the Local Government Councils. Also the authority in Knight Frank & Rutlay (Nig) Ltd. & Anr. v. Attorney General of Kano State (1998) 7 NWLR (Pt. 556) 1 is not at all fours with the instant case. In that case, the issue concerned contract ‘award in the area that had been assigned to Local Governments to control. The State Government employed the provision of S.7 (5) and the Schedule 4 of the 1999 Constitution as a shield to absolve itself from responsibility. The Court held that even though the State Government has the power under Section 7(1) and (2) of the Constitution to establish and define the areas of Local Government Councils and to ensure their existence under the law establishing them, it has no power to enter into contract with the Appellants over a subject matter within the competence of the Local Government Councils.

M. B. DONGBAN-MENSEM, J.C.A: I agree entirely and wholly adopt as mine, the lead Judgment prepared by my learned brother Galinje JCA.

It sounds absurd to me that the full meaning and effect of a statute should be limited to the title merely because the tile is long. The length could be as a result of poor draftsmanship.

The long title of a statute cannot exclude but only enhance the scope and purport of the said statute.

Similarly and as painstakingly analyzed by my learned brother Galinje JCA, the LASAA law is not inconsistent with the provisions of Section 7(5) of the 1999 Constitution, especially when read together with paragraph 1(k)(i) of the 4th Schedule of the said Constitution. The powers are complementary and can be concurrently exercised by both the State and Local Government and the citizens are the better off for it.

The appeal lacks merit and is dismissed. Cost awarded in the lead judgment is hereby adopted.

BODE RHODES-VIVOUR, J.C.A.: I read in draft the judgment just delivered by my learned brother Galinje, J.C.A, and I agree entirely with his lordship findings that the appeal lacks merit.

Costs assessed at N30, 000 awarded in favour of the respondents.

Appearances

Prof. G. A. Olawoyin (SAN) with Lanre Oyebanji, Esq.For Appellant

AND

Mr. Lawal Pedro, SAN with A. O. Osinusi (Mrs) and Mrs. A. O. Adebayo

Mr. Ajibola Morevise for party seeking to be joined as Co-Appellant.For Respondent