A.G. LAGOS STATE V. A.G. FEDERATION & ORS.- 2003

ATTORNEY-GENERAL OF LAGOS STATE V. THE ATTORNEY-GENERAL OF THE FEDERATION & ORS.

In The Supreme Court of Nigeria

On Tuesday, the 13th day of May, 2003

SC.353/2001

JUSTICES

MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria

SYLVESTER UMARU ONU Justice of The Supreme Court of Nigeria

UMARU ATU KALGO Justice of The Supreme Court of Nigeria

SAMSON ODEMWINGIE UWAIFO Justice of The Supreme Court of Nigeria

AKINTOLA OLUFEMI EJIWUNMI Justice of The Supreme Court of Nigeria

EMMANUEL OLAYINKA AYOOLA Justice of The Supreme Court of Nigeria

NIKI TOBI Justice of The Supreme Court of Nigeria

Between

ATTORNEY-GENERAL OF LAGOS STATE Appellant(s)

AND

THE ATTORNEY-GENERAL OF THE FEDERATION Respondent(s)

RATIO DECIDENDI

INTERPRETATION OF STATUTE – INTERPRETATION OF CONSTITUTION: WHETHER IN THE INTERPRETATION OF THE CONSTITUTION, A WIDER AND LIBERAL INTERPRETATION MUST BE APPLIED UNLESS THERE IS EXPRESS PROVISION TO THE CONTRARY

“In the interpretation of any provision of the Constitution, it has been well established by this court in its various decisions that a wider and liberal interpretation must be applied unless there is express provision to the contrary and this must be done in order to carry out or give effect to., the intention of the makers of the Constitution. See Nafiu Rabiu v. The State (1980) 8 – 11 SC 130; (1981) 2 NCLR 293; A.-G., Ondo State v. A.-G., Federation & Ors. (2002) 9 NWLR (Pt.772) 222; Alegbe v. Oloyo (1983) 7 SC 85.” Per KALGO JSC. (P. 186, paras. B-D) (…read in con)

INTERPRETATION OF STATUTE – RULE OF INTERPRETATION OF THE CONSTITUTION: WHETHER IN INTERPRETING THE CONSTITUTION NARROW MEANING SHOULD NOT BE GIVEN TO IT UNLESS IT BECOMES NECESSARY TO DO SO

“It is trite canon that in interpreting the Constitution narrow meaning should not be given to it unless it becomes necessary to do so – see Nafiu Rabiu v. State (1981) 2 NCLR 293; (1980) 8 – 11 SC 130; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Aqua Ltd. v. Ondo State Sports Council (1985) 4 NWLR (Pt. 91) 622; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 and A-G. of Ondo State v. A-G. of the Federation & 35 Ors. (supra) at p. 28.” Per UWAIS CJN. (P. 124, paras. A-C) (…read in con)

INTERPRETATION OF STATUTE – Nigerian Urban and Regional Planning Decree No.88 of 1992: Whether the Nigerian Urban and Regional Planning Decree No.88 of 1992 is an existing law.

“Now, it must be recalled that at the time it was promulgated by the Federal Military Government for the entire Federation of Nigeria, it was done by virtue of the Constitution (Suspension and Modification) Decree No.1 of 1984 which gave it overriding legislative authority. The legal reality of that cannot be lost on anyone. The said Decree No.88 of 1992 was not repealed by the time the 1999 Constitution came into force on 29 May, 1999. It is still not repealed or amended. It is an existing law by virtue of section 315(4)(b) of the Constitution which says: “(b) ‘existing law’ means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the datewhen this section :..” comes into force or which having been passed or made before that date comes into force after that date.” Decree No.88 of 1992 is still a law that exists in Nigeria (and even in the States, at least on paper) in its original form. But is it to be regarded as an Act or a Law, and in what sense As things are, and this I have already made clear in this judgment, it is deemed to be an Act of the National Assembly which by the Constitution it can make, under its residual power, but for the Federal Capital Territory, Abuja only. It is also deemed to be a Law of the State House of Assembly which by the Constitution it can make, under its residual power, for the respective State.” Per UWAIFO, J.S.C (Pp. 72-73, paras. C-C) (…read in con)

INTERPRETATION OF STATUTE – PURPOSIVE APPROACH IN INTERPRETATION OF STATUTE: Whether court is entitled to consider materials or information used during legislative process in enacting a law to determine the true intendment of a statutory or constitutional provision in a purposive interpretative approach

“…The court is entitled to take account of and use such materials or information which it considers will help it to determine the true intendment of a statutory or constitutional provision in a purposive interpretative approach; or which will lead it to assess the correctness of a meaning it has, through the usual canons of interpretation, given to such a provision. This is particularly so of a provision which is either ambiguous or seems to have become controversial. Chief Ifeoma Chinwuba, the learned Attorney-General of Anambra State, certainly urges on this court that interpretative approach to section 20 of the 1999 Constitution in the present case. So by her courtesy, for which I again express my gratitude, the relevant proceedings of the Constitutional Committee were made part of her argument on behalf of the 5th defendant, but in support of the plaintiff. I think this is an appropriate case to make use of that information. In Pepper v. Hart (1993) 1 All ER 42, the House of Lords took that course. Lord Bridge of Harwich observed at page 50: “The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.” At page 61, Lord Browne-Wilkinson who gave the leading opinion said: “Although the courts’ attitude to reports leading to legislation has varied, until recently there was no modern case in which the court had looked at parliamentary debates as an aid to construction. However, in Pickstone v. Freemans Plc (1988) 2 All ER 803, (1989) AC 66 this House, in construing a statutory instrument, did have regard to what was said by the minister who initiated the debate on the regulations. Lord Keith after pointing out that the draft regulations were not capable of being amended when presented to Parliament, said that it was ‘entirely legitimate for the purpose of ascertaining the intention of the Parliament to take into account the terms in which the draft was presented by the responsible minister and which formed the basis of the acceptance’ (see (1988) 2 All ER 803 at 807, (1989) AC 66 at 112).” Per UWAIFO, J.S.C. (Pp. 51-53, paras. E-A) (…read in con)

LAND LAW – OWNERSHIP OF LAND BY FEDERAL GOVERNMENT: Whether where Federal Government Owns land in any State; it is bound by the planning laws and regulations of the State

“Ownership of land in any State by the Federal Government is primarily limited to the question of title and the right to possession and use of it. It gives the Government the right to use it for its purposes. Like any other individual landowner, though obviously with more awesome presence, the Federal Government must respect the planning laws and regulations of the State, or at least act in consultation with the appropriate authorities or agencies with a view to achieving mutual accommodation for the project intended. It must not act in competition with or unwholesome subjugation of the State by superimposing its own planning regulations by whatever method. There is no reason why the Federal Government should not respect and abide by those laws. After all, it is the State which provides the necessary infrastructures in line with its development plans. Those plans cannot be altered, distorted or superimposed by any other authority on the ground that it is making use of the land which belongs to it in a State. The argument that the Land Use Act allows the Federal Government to impose its planning measures over such land is completely flawed by Nwabueze in his book, Federalism in Nigeria under the Presidential Constitution, [Sweet & Maxwell (London)] 1983 edn, page 170, where the learned author says inter alia: “To begin with, the title, Land Use Act, is a complete misnomer, as the Act has absolutely nothing to do with the use of land or its preservation …. It does not regulate town and country planning, or the use of land for Agriculture … There is a vast mass of existing laws …. relating to town and country planning, etc. Town and country planning, for example, occupies some 124 printed pages in the 1973 edition of the Laws of Lagos State, not to mention other laws on the subject, such as those regulating building lines or the laying out of land into private housing estates……… Since the subject matter of these laws are not covered by the Land Use Act, they must be deemed to be exclusively state laws, and subject therefore to the executive authority of the state governments. As residual matters, legislation with respect to them remains the exclusive responsibility of the State Houses of Assembly.” I unreservedly agree with these views of the learned author so expressed with much clarity.” Per UWAIFO, J.S.C (Pp. 70-72, paras. E-B) (…read in con)

LEGISLATIVE MATTERS – RESIDUAL POWER: Whether or not it is legislative power of the House of Assembly of a State to legislate for the planning, layout and development of their respective areas

“No argument can defeat or reduce from the general planning legislative power of the House of Assembly of a State, which is a residual constitutional power. It gives the States the exclusive function for the planning, layout and development of their respective areas. Any Act, be it the Federal Highways Act, the Civil Aviation Act, the Nigerian Railway Corporation Act, which tends, or is implemented in a way to tend, to undermine or take away this function of any State, or allows the Federal Government to exercise or assume such function is unconstitutional and in appropriate circumstances will be declared so.” Per UWAIFO, J.S.C (P. 68, paras. C-F) (…read in con)

LEGISLATIVE MATTERS – LEGISLATIVE POWER: Whether the National Assembly has the competence to legislate on urban and regional planning for the whole country by virtue of section 20 of the Constitution

“In the circumstances, I have to say that Professor Osinbajo is right, in my view, in his submission that urban and regional planning for the Federal Capital Territory, Abuja is within the exclusive legislative function of the National Assembly but only by virtue of section 299(a) conferring residual power on it and not the controversial section 20 of the Constitution. Similarly, each State House of Assembly has the exclusive function to make planning laws and regulations for the State under its residual power. It must follow that the National Assembly cannot make a law in the form and to the detail and territorial extent of the present Nigerian Urban and Regional Planning Decree No.88 of 1992. To do so will be in clear breach of the principles of federalism and an incursion into the legislative jurisdiction of the States. But it can make planning laws for the Federal Capital Territory, Abuja only on the basis of its residual powers. Again, the National Assembly cannot enact any law, in contravention of the Constitution, imposing any responsibility on a State and expect obedience to such a law. It is a noncontroversial political philosophy of federalism that the federal government does not exercise supervisory authority over the state governments.” Per UWAIFO, J.S.C (Pp. 63-64, paras. G-F) (…read in con)

LEGISLATIVE MATTERS – LEGISLATIVE POWER OF NATIONAL ASSEMBLY: Whether Urban and Regional Planning Decree No.88 of 1992 is not inconsistent with the provisions of section 4 of the 1999 Constitution therefore unlawful, null and void.

“Although S. 20 of the 1999 Constitution gives the National Assembly the legislative jurisdiction on environment generally, it did not give it the power to legislate on planning and development control over land in the States or Local Governments and this cannot in the circumstances of this case be implied. It is not the function of the National Assembly under the 1999 Constitution to exercise any legislative powers of planning and development control of land in the jurisdiction of the States or Local Governments as this is not necessarily incidental or ancillary to effective legislation under S. 20 and Item 60(a) of the E.L.L of the said Constitution. And under the Federal system of Government which we practice in the 1999 Constitution, the National Assembly, except where the Constitution so provides, cannot legally impose any responsibility by legislation on a State in respect of any land in the territory of the State as it has no supervisory power or authority to do so under the 1999 Constitution. See A.-G., Ogun State v. A.-G., Federation (1982) 3 NCLR 166, (1982) 13 NSCC 1. Also the word “State” in section 20 does not mean Federal Government alone but according to S. 13 applies to “all organs of government and all authorities and persons exercising legislative, executive or judicial powers,” and makes no distinction between Federal, State or Local Government as component parts of the Federation. See also S. 318(2) of the 1999 Constitution of the definition of “State.” From this and all what I have said earlier in this judgment, I am of the view that Decree 88 of 1992, now Nigerian Urban and Regional Planning Act is, in its intent and contents, inconsistent with the provisions of the 1999 Constitution except as it applies to the Federal Capital Territory, Abuja by virtue of S. 299 of 1999 Constitution. I also do not think that the application of the blue pencil rule to it will be of any use particularly as the majority of its provisions relate to national policies on planning and physical development of land in which the National Assembly lacks legislative powers. By my judgment, planning and development control of land is a residual matter within the legislative competence of the State Assemblies. I therefore answer issue 2 in the affirmative and issue 3 in the negative.” Per KALGO, J.S.C (Pp. 192-194, paras. F-B) (…read in con)

LEGISLATIVE MATTERS – LEGISLATIVE POWER: The residual legislative powers of government is vestes in what level of goverment

“In Aberuagba’s case at page 405, Bello, JSC (later CJN) observed thus: “A careful perusal and proper construction of section 4 [of the 1979 Constitution] would reveal that the residual legislative powers of government were vested in the States. 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 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 matters.” (Note: The parenthesis in square brackets supplied by me. The Federation also has residual powers as provided in S.299 of the 1999 Constitution, formerly section 263 of the 1979 Constitution. This observation by Bello, JSC was made at the time that section 4 of the 1979 Constitution had been suspended by the Federal Military Government when the case came on at the Supreme Court).” Per UWAIFO, J.S.C (Pp. 59-60, paras. F-C) (…read in con)

WORDS AND PHRASES – “STATE”: Definition of the word, “State”

“The word “State” is defined in section 318 subsection (1) of the 1999 Constitution and has been held by this court to mean “all the three tiers of government, namely, the Federal Government, State Government and Local Government” Per UWAIS, C.J.N (P. 121, paras. B-C) (…read in con)

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Appearances

Prof. Y. Osinbajo, SAN, A.-G., of Lagos State (with him,Ipaye and K. Jose [Mrs.] Chief State Counsel) -for the Plaintiff For Appellant

AND