CHEVRON NIGERIA LIMITED v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE & ANOR
(2018)LCN/11540(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/B/221/2010
RATIO
DOCTRINE OF COVERING THE FIELD
The doctrine of covering the field simply means that, in a federalism, where a Federal Constitution or a federal enactment has already covered a particular legislative filed, no State or even local government law can be enacted to cover the same field already covered by the Constitution or the Federal enactment per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES:
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
CHEVRON NIGERIA LIMITED – Appellant(s)
AND
1. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE
2. THE GOVERNOR OF DELTA STATE – Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
On the 24th day of February, 2009 the appellant, as the plaintiff, instituted an action by way of an originating summons in the High Court of Delta State, holden at Warri in Suit No. W/105/2009. In the said suit, the appellant sought the determination of the following issues:
1. Whether from the construction/interpretation of the Constitution of the Federal Republic of Nigeria 1999 and the Taxes and Levies (Approved List for collection) Decree No. 21 of 1998, the Federal Environmental Protection Agency Act and all other relevant Federal enactments the Delta State House of Assembly and indeed the Delta State Government is empowered to legislate and pass the Ecology Law 2006 and the Ecology Tariff 2006.
2. Whether the Delta State Government is legally entitled to levy and collect the rates, taxes and tariffs contained in Exhibits CNL 1 and CNL 2 contrary to the 1999 Constitution and the Taxes and Levies (Approved List for collection) Decree No. 21 of 1998.
3. Whether the rates, taxes and tariffs described in Exhibit CNL 1 and demanded by the Delta State Government in Exhibit CNL 2 pursuant to the Delta State Ecology Law 2006 against the plaintiff is not ultra vires the powers of the Delta State House of Assembly and indeed the Delta State Government contrary to the 1999 Constitution of the Federal Republic of Nigeria and the Taxes and Levies (Approved List for collection) Decree 1998, the Federal Environmental Protection Act and all other relevant Enactments.
4. Whether the Delta State Government can levy and collect rates and taxes outside the Taxes and Rates (Approved List for collection) Decree No. 21 of 1998 and the Constitution of the Federal Republic of Nigeria 1999.
5. Whether the rates, taxes levies and tariffs described in Exhibits CNL 1 and CNL 2 as demanded by the Delta State Government are not inconsistent with the Constitution of the Federal Republic of Nigeria 1999.
The appellant also claimed against the defendants, now respondents as follows:
1. A declaration that the taxes, tariffs and rates as described in Exhibits CNL 1 and CNL 2 demanded by the defendants pursuant to the Delta State Ecology Law 2006 and the Ecology Tariff against the plaintiff are, unconstitutional inconsistent and contrary to the Constitution of the Federal Republic of Nigeria 1999 and the Taxes and Levies (Approved List for collection) Decree No. 21 of the 1998 and are therefore null and void.
2. A declaration that the plaintiff cannot be compelled to pay the said amount contained in Exhibits CNL 1 and CNL 2.
3. A declaration that the Delta State Ecology Law 2006 and the Delta State Ecology Tariff 2006 are unconstitutional, inconsistent with and contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999, the Taxes and Levies (Approved List for collection) Decree No. 21 of 1998, Federal Environmental Protection Agency Act and all other relevant existing Laws of the Federal Republic of Nigeria and are therefore null and void.
4. An order of perpetual injunction restraining the Delta State Government its servants, agents, privies and/or whomsoever acting for and on their behalf from collecting, levying and demanding from the plaintiff such rates, taxes and tariffs as contained in the Delta State Ecology Law and the Ecology Tariff 2006 and all other rates, taxes and tariffs that are inconsistent with the Constitution of the Federal Republic of Nigeria 1999 and Taxes and Levies (Approved List for collection) Decree No. 21 of 1998.
The originating summons was supported with an affidavit of 19 paragraphs and exhibits. The respondents filed a counter affidavit of 11 paragraphs in opposition to the originating summons. After taking arguments on the originating summons, the trial Court delivered a reserved judgment on 22/03/2010 whereby the appellants action was dismissed. This appeal is against the said decision.
In the amended appellants brief filed on 17/03/2017 and deemed properly and served on the day, learned counsel formulated three issues for determination thus:
1. Was the learned trial judge right in law in dismissing appellants case on the ground that:
(a) environment is for the residuary list.
(b) the word State in Section 20 of the Constitution means the States of the Federation instead of the Nigerian State.
(c) the High Court is not bound by an obiter dicta of the Supreme Court.
2. Is the Delta State Ecology Tariff Law 2006 as enacted invalid in Law?
3. Was the claim made by the appellant fully and adequately considered and determined by the trial Court.
The learned counsel for the respondents adopted the appellants first and third issues in their amended brief filed on 13/06/2017, but which was deemed properly filed and served on 04/12/2017.
To determine this appeal, I adopt the three issues as framed by the appellant, because they precisely cover all the grounds in the amended notice of appeal filed on 08/10/2013. However, I take and consider Issues 1 and 2 together.
ISSUES NO. 1 AND 2
1. Was the learned trial judge right in law in dismissing appellants case on the ground that:
(a) environment is for the residuary list
(b) the word State in Section 20 of the Constitution means the States of the Federation instead of the Nigerian State.
(c) the High Court is not bound by an obiter dicta of the Supreme Court.
2. Is the Delta State Ecology Tariff Law 2006 as enacted invalid in Law?
Learned counsel for the appellant argued that the trial Court was wrong in refusing to follow the pronouncement of the Supreme Court in Attorney-General, Lagos v. Attorney-General, Federation (2003) 6 SC 24 at 44 45 on the ground that it was obiter. He stated that even the Court of Appeal echoed the decision of the Supreme Court in the case of Attorney-General, Lagos v. Attorney-General, Federation (supra) in the case of The House of Representatives & Ors. v. The Shell Petroleum Development Company of Nigeria Limited & Anor. (2010) 11 NWLR (Pt. 1205) Page 213 at pages 268 269.
Relying on the case of Ifediora v. Ume (1988) 2 NWLR (Pt. 74) 5 at 13, learned counsel submitted that an obiter of a higher Court is as binding on a lower Court as the ratio decidendi.
The learned counsel argued that the trial Court was also wrong in its interpretation of the provision of Section 20 and item 60(a) of the Constitution of the Federal Republic of Nigeria, 1999 and was wrong in concluding that:
Since the Constitution has expressly listed matters to be for the Exclusive Legislative List then any matter not so listed is clearly not intended to be for the Exclusive Legislative List.
After referring to the cases Chime v. Ude (1996) 7 NWLR (Pt. 461) 376; Action Congress & Anor. v. INEC (2007) 12 NWLR (Pt. 104) 222 and Bronik Motors v. Wema Bank (1983) 1 SCNLR 296, the appellants counsel submitted that:
The Constitution is a single document divided into sections, parts and schedules. In interpreting the document, the principle that the Constitution is one document must be borne in mind. The sections and schedules are part of the one Constitution and sections or schedules of the one document cannot and must not be interpreted in isolation or be considered as if the sections are isolated and rigidly compartmentised.
The learned counsel further contended that the trial Court erred by concluding that the 1999 Constitution is silent on the issue as whether only the National Assembly or the State Assembly has power to legislate on environment.
In finally urging the Court to resolve these issues in favour of the appellant, learned argued, inter alia, as follows:
In this case, having regard to the scheme of the provision in Chapter II of the Constitution, the responsibilities provided for, the context of S.20 read within the context of S.21 and the entire provision of Chapter II including the consistent use of the singular word State; the word State means and can be understood only to mean the Nigerian nation state. The learned trial Judge was wrong to interpret State in S.20 of the Constitution as meaning the 35 States of Nigeria.
The appellant opined that the Delta State Ecology Law, 2006 is unconstitutional and void as the State House of Assembly is not competent to legislate on the subject, which is within the legislative competence of the National Assembly and that the appellant cannot be compelled to pay demands under the Ecology Tariff made under the said Law. Learned counsel stated the matters contained in the said Delta State Ecology Law and Ecology Tariff have been covered by the Federal Environmental Protection Act; the Taxes and Levies Approved List/or Collection Act No. 21 of 1998 and National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007. Counsel argued that the Delta State Law should, therefore, yield ground to the Federal Laws.
Learned counsel for the respondents, however, disagreed with the submissions of the learned counsel for the appellant. The respondents counsel argued that the appellants contention that the word State as used in Chapter II of the Constitution in its singular form means the Nigerian State and not the thirty-six States of the Federation has no legs to stand on. Learned counsel relied on the cases of Attorney-General, Ondo State v. Attorney-General, Federation (2002) 9 NWLR (Pt. 772) 222 at 306 308 and 392 and Attorney-General, Lagos State v. Attorney-General, Federation (2003) 12 NWLR (Pt. 833) 1 at 115-116 and 227 and submitted that the word State in Chapter II of the 1999 Constitution is defined in Section 318 (1) of the Constitution and has been held to mean all the three tiers of government, namely the Federal Government, State Government and Local Government.
Still on the meaning of State, learned counsel for the respondents contended that:
The word State when used otherwise than in relation to one of the component parts of the Federation includes government and government includes the Government of the Federation, or of any state or of a local government council or any person who exercises power or authority on its behalf.
In support of the above contention, learned counsel referred the Court to the case of Attorney-General, Kano State v. Attorney-General, Federation (2007) 6 NWLR (Pt. 1029) 164 at 184.
The learned counsel, therefore, submitted that the directive under Section 20 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) will apply to all the three tiers of government……and….the power to legislate in order to protect and improve the environment and safeguard the water, air and land, forest and wildlife in Nigeria is concurrent and can be exercised by the Federal Government and State Government by virtue of the provisions of Section 4 Subsection (2), Sections 13 and 20.
The respondents learned counsel referred to the meaning of obiter on page 1177 of Blacks Law Dictionary, 9th edition and the cases of Mohammed v. Lawal (2006) 9 NWLR (Pt. 985) 400 at 417, per Sanusi, JCA (as he then was) and Okpala v. Okpu (2003) 5 NWLR (Pt. 812) 183 at 220, per Ogundare, JSC and argued that although it might have considerable weight, an obiter dictum is not binding on Courts as it is a mere statement made in passing which is distinguishable from an issue raised by the parties for determination by the Court which is usually a question or a proposition of law or of fact in dispute between the parties and the determination of which will normally affect the legal position of the parties.
Learned counsel argued that the trial Court was right in its decision on the issue of obiter dictum.
The meaning of obiter dictum is now settled in the law lexicon. Obiter dictum is a Latin phrase or term which means something said in passin. In law, obiter dictum means a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive) Blacks Law Dictionary, Deluxe Ninth Edition, Page 1177.
Although an obiter dictum cannot be equated to be on the same standing as ratio decidendi and it is not binding under the doctrine of judicial precedents, the dicta of great jurists have long been accepted and recognized as guiding lights to Judges of lower Court in the area of interpretation of legal and statutory instruments. For example, Lord Justice Kay acknowledged the relevance and significance of obiter dicta inDashwood v. Magniac (1891) L.R. 3 C.D. 379 by stating that:
There are old dicta of great Judges, which have been followed by many decisions and have become maxims of law…
In Nigeria, the Supreme Court has also emphasized the usefulness, in some circumstances, of obiter dicta. For example, after referring to the dictum of Idigbe, JSC in Nafiu Rabiu v. Kano State (1980) 11 SC 130 at 203 204, the Supreme Court in the case of Bennett Ifediorah & Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt. 74) 5 at 13, per Nnaemeka-Agu, JSC stated as follows:
Although this opinion was given in a criminal appeal, it has been followed and applied by the Court of Appeal in many civil appeals against interlocutory decisions. See for an example Akinsola Dawodu & Anor. v. F.O. Ologundundu & Ors. (1986) 4 N.W.L.R. 104, at p. 112. For, it has been held by the House of Lords in England that although what is ordinarily binding in a case is the ratio decidendi and not the obiter dictum; yet an obiter dictum by the ultimate Court on an important point of law is one which is binding on and followed by all the lower Courts: see W. B. Anderson & Sons Ltd. & Ors. v. Rhodes (Liverpool; Ltd. & Ors. (1967) 2 All E.R. 850. After all, a good deal of the important pronouncements of the Supreme Court in the famous case of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296 was obiter. Yet it was binding on the Court of Appeal and all other Courts lower down in the judicial hierarchy until the law was changed in Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. 273.
The learned trial Judge, in this case, decided not to be bound by the dictum of His Lordship, Uwaifo, JSC in the case of Attorney-General of Lagos State v. The Attorney-General of the Federation & 35 Ors. (2003) 6 SC 24; (2003) 6 SCNJ 1; (2003) 12 NWLR (Pt. 833) 1 where the pre-eminent jurist stated, inter alia, to the effect that the National Assembly, having regard to the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), could legislate on environment. The learned trial Judge gave the reason for his decision thus:
This is because the issue whether the National Assembly could legislate on matters of environment was not a ratio decidendi in the case of A.G. LAGOS VS. A.G. FEDERATION & ORS. In other words, it was not an issue for determination between the parties in that case.
The learned trial Judge then proceeded to consider the provisions of Section 20 and item 60(a) of Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and concluded, inter alia, as follows:
I hold the view that the Exclusive and Concurrent List contained the Part I and Part II in the second Schedule to the 1999 Constitution is silent on the issue whether only the National Assembly or the State House of Assembly has power to legislate on environment, then environment is for the residuary list.
The question that arises now is: What were the issues for determination in the case of Attorney-General of Lagos State v. The Attorney-General of the Federation & 35 Ors? The issues formulated for determination by the plaintiff and which the Supreme Court accepted for the determination of that case were:
1. Whether Urban and Regional Planning (or Town Planning) as well as the Regulation or physical Development are legislative matters.
2. If an affirmative answer is given to issue 1, whether Urban and regional Planning (or Town Planning) as well as the Regulation of Physical Development in relation to any land in Lagos State are within the legislative and executive jurisdiction of the Federal Government.
3. Whether Urban and Regional Planning Decree No. 38 of 1992 is not inconsistent with the provisions of Section 4 of the 1999 Constitution therefore unlawful, null and void.
4. Whether the ownership rights of the federal government over land in state territories include the power to control and regulate town planning and physical development in relation to such land.
5. Whether all approvals, permits and licences granted by the 1st defendant or any of the agencies of the Federal Government for any construction, building or physical development or use of land in Lagos State without the consent of the plaintiff are not illegal, null and void.
See pages 7, 104, 173, 207 and 236 237 of (2003) 12 NWLR (Pt. 833).
At page 174 of (2003) 12 NWLR (Pt. 833), Uwaifo, JSC decided to take and treat Issues 1, 2 and 3 together and stated at page 175 that:
Section 20 was considered relevant on the basis of Item 60(a) of the 1999 Constitution which was carefully considered and applied by this Court in the recent case of Attorney-General, Ondo State v. Attorney-General of the Federation (2002) 9 NWLR (Pt. 772) 222.
At pages 179 180 of the Law Report, His Lordship, Uwaifo, JSC stated, inter alia, as follows:
I have emphasised the portion of the submission which considers that Section 20 of the 1999 Constitution gives the National Assembly power to make planning laws in the nature of the Nigerian Urban and Regional Planning Decree. It seems to me that the provisions of that section is the mainstay of the 1st defendants defence of its constitutional right to intrude into the authority of the States (in the present case, the Lagos State) to decide which town/urban planning laws and regulations may be allowed to be implemented within their territories. The 1st defendants learned counsels argument is that the Decree No. 88 of 1992 applies throughout the Federation of Nigeria. That means, of course, including the States. This Court ought, therefore, to refer to and reflect on all relevant circumstances concerning, or that may bear on, that Section of the Constitution, and to give them a very close consideration in order to ascertain the real scope of that section.
As has already been said in reviewing the argument of counsel, Section 20 of the 1999 Constitution is one of the sections under Chapter II. That is the chapter containing the Fundamental Objectives and Directive Principles of State Policy. By virtue of Item 60(a) of the Second Schedule to the constitution, the subject-matter of that section comes under the Exclusive Legislative List. It can only be legislated on by the National Assembly on behalf of the Federal Republic of Nigeria. That was decided in Attorney-General, Ondo State v. Attorney-General of the Federation (supra). The Federal Republic of Nigeria is by Section 12 Subsection (1) of the Constitution referred to as a Sovereign State which in subsection (2) is described as consisting of States and a Federal Capital Territory; and it is, the Federal Republic of Nigeria or the Sovereign State that is referred to in Section 20 as The State. Section 14(1) of the Constitution says: The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. It is only the National Assembly that is empowered to legislate on behalf of the entity known as the Federal Republic of Nigeria in regard to any of the matters under Chapter II, through Item 60(a) in the Exclusive Legislative List by virtue of Section 4 Subsections (1), (2) and (3) of the Constitution. One of such matters is Environment in Section 20
The judgment of the Supreme Court in the case of Attorney-General of Lagos State v. The Attorney-General of the Federation & 35 Ors. (supra) is a very comprehensive and an elaborate decision, which is the only judgment reported in (2003) 12 NWLR (Pt. 833). The panel of the Supreme Court sitting in its exclusive original jurisdiction was made up of Uwais, CJN (Presided) Onu, JSC; Kalgo, JSC; Uwaifo, JSC; Ejiwunmi, JSC; Ayoola, JSC and Tobi, JSC. Arguments were heard and taken from very prominent legal luminaries, including Prof. Yemi Osinbajo (SAN), Chief Ifeoma Chinwuba (now deceased), Prof. A.A. Utuama (SAN); Paul Usoro (SAN); P. Erokoro (SAN) and Chief T.O. Ashaolu (SAN). The interpretation of Section 20 and Item 60(a) of Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was fully considered by the Supreme Court in the said case. Although Uwais, CJN and Ayoola and Tobi, JJSC expressed minority views on the grant of some of the reliefs sought in the case, the learned Justices of the Supreme Court were unanimous on their views on the interpretation of these constitutional provisions. See, example, the views of Uwais, CJN, on pages 113 119. At page 227 Ayoola, JSC, after referring to Section 20 of the Constitution, stated that:
This is the environment clause. Since he State referred to in section 20 is not restricted to the Federal Republic but also to its component units, environment becomes a concurrent subject over which the National Assembly as well as a House of Assembly of a State can legislate subject, of course, to the territorial restriction of the legislation of a House of Assembly; the doctrine of covering the field.
The competence of the National Assembly to make laws on environmental matters is beyond question. Such competence derives from a communal reading of Sections 13 and 20 of the Constitution and Items 60(a), 67 and 68 of the Exclusive Legislative List.
The Supreme Court even confirmed, through Tobi, JSC at page 240 that the present matter involves the interpretation of Section 20 of the Constitution
From the above analysis of the decision in Attorney-General of Lagos State v. The Attorney-General of the Federation & 35 Ors. (supra) the issue of whether the National Assembly could legislate on matters of environment was raised and deliberated upon by the Supreme Court and the views of the apex Court, including those of Uwaifo, JSC, are binding on all lower Courts in Nigeria, including the trial Court.
Assuming that the issue was not raised but the Supreme Court, merely by way of obiter dicta, interpreted these important constitutional provisions, the way it comprehensively did in this case, the obiter dicta of the learned Justices of the Supreme Court constitute a very illuminating guide which, by the nature of the weight of their views, all Courts below the Supreme Court should abide with and follow without questioning the rationale for the interpretation adopted by the Supreme Court. The law is that where words in a statute have been judicially defined or interpreted, the ordinary meanings of those words give way to the judicial meaning. See ACME Builders Ltd v. Kaduna State Water Board (1999) 2 SCNJ 25 at 53; (1999) 2 NWLR (Pt.590) 288 at 313, per Onu, JSC, where the eminent jurist stated that:
Be it noted, however, that it is settled law that where words or expressions have been legally or judicially defined, their ordinary meaning will surely give way to their legally or judicially defined meaning.
Without further ado these issues ought to be resolved in favour of the appellant against the respondents, and they are hereby so resolved.
ISSUE NO. 3
Was the claim made by the appellant fully and adequately considered and determined by the trial Court.
Learned counsel contended that the Ecology Tariff made under the Delta State Ecology Law, 2006 is unconstitutional and void as the State House of Assembly is not competent to legislate on the subject, which is within the legislative competence of the National Assembly. Counsel argued that even if the said State Law is valid, the Federal Laws have sufficiently covered the same matter and consequently any such law by the State will be inoperative as the existing Federal legislations covered the field. The laws which the learned Counsel submitted covered the field include the Federal Environmental Protection Act, the Taxes and Levies Approved List/or Collection Act No. 21 of 1998 and the Regulations Enforcement Agency (Establishment) Act, 2007.
Arguing in the alternative, learned counsel for the appellant submitted that:
…..a careful perusal of the Federal Environmental Protection Act show that
By Regulation 15 of the National Environmental Protection (Pollution Abatement In Industries and Facilities Generating Wastes) Regulations, S.I. of 1991 and Regulations 2, 7 and 8 and National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 confer on the Federal agency established thereunder the power and duty to protect natural environment including setting of standards and issuance of permit under the Act in relation to operations of individuals and corporate bodies likely to affect the environment and setting permissible limit.
In the case of Attorney-General of Lagos State v. The Attorney-General of the Federation (supra) majority of the Justices of the Supreme Court granted reliefs 1, 2, 3 and 4 sought by the plaintiff therein. The learned Justices of the Supreme Court held, inter alia, that Section 20 must b confined to pure matters of environment and not by extension to matters of pure town and regional planning. The Court then held further at page 115 of the Law Report, per Onu, JSC, as follows:
Since town and regional planning is not in the Exclusive and Concurrent Lists, it is clearly a residual matter for the States: see Attorney-General Ogun State v. Aberuagba (1985) 1 NWLR (Pt. 3) 395 at 405 per Bello, JSC (as he then was); Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524, (1988) 19 NSCC (pt. 1) 869 at 879, per Nnamani, JSC and at 890 per Karibi-Whyte, JSC. In the same manner, town and regional planning as far as the Federal Capital Territory is concerned is a residual matter for the National Assembly by virtue of Sections 4(4)(b) and 299 of the 1999 Constitution: see Fawehinmi v. Babangida (2003) 3 NWLR (Pt. 808) 604 at 651-652 per Uwaifo, JSC.
It follows that Decree No. 88 of 1992 which remains an existing law will, where appropriate, be an Act applicable in the Federal Capital Territory, Abuja; and similarly, mutatis mutandis, it will be a law in the different States of Nigeria.
In this case, the Delta State House of Assembly enacted the Ecology Law, 2006 of Delta State and pursuant to the said Law, the Delta State Government made the Ecology Tariff, 2006 prescribing tariffs for permits for about 53 (fifty-three) items specified therein.
Ecology, in plain English language, means the relation of plants and living creatures to each and to their environment. See Oxford Advanced Learners Dictionary, 6th edition, page 369. In the case of Attorney-General of Lagos State v. The Attorney-General of the Federation & Ors. (2003) 12 NWLR (Pt. 833) 1 at 180 per Uwaifo, JSC, the Supreme Court accepted the definition of environment as set out in the Oxford Advanced Learners Dictionary, 5th edition, page 387, inter alia, as the natural conditions, for example land, air and water, in which people, animals and plants live.
It should be noted in Section 63(1) of the Environmental Impact Assessment Act (formerly Decree No. 86 of 1992) environment is defined as the components of the Earth, and includes
(a) land, water and air, including all layers of the atmosphere,
(b) all organic and inorganic matter and living organisms, and
(c) the interacting natural systems that include components referred to in paragraphs (a) and (b).
From the ordinary and legislative meaning of environment, ecology is obviously a matter of pure environment as contemplated or envisaged under Section 20 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and by virtue of Section 20 of the Constitution of the Federal Republic of Nigeria, 1999 and Item 60(a) of the Second Schedule thereto, the National Assembly has the power to legislate on ecology as it has done by legislation such as the Federal Environmental Protection Agency Act and the Environmental Impact Assessment Act.
I have juxtaposed the Delta State Ecology Law, 2006 with federal or national enactments such as Federal Environmental Protection Agency Act, Environmental Impact Assessment Act and Petroleum Production and Distribution Anti-Sabotage Act and I am in agreement with the submission of learned counsel for the appellants that these federal laws have covered the legislative field on most of the matters contained in the Delta State Ecology Law, 2006. In similar vein the tariffs prescribed in the Delta State Ecology Tariffs, 2006 have been substantially covered by the Schedule to Taxes and Levies (Approved List for Collection Act (Amendment) Order, 2015.
What I am saying is that the doctrine of covering the field applies to this case.
The doctrine of covering the field simply means that, in a federalism, where a Federal Constitution or a federal enactment has already covered a particular legislative filed, no State or even local government law can be enacted to cover the same field already covered by the Constitution or the Federal enactment.see Attorney-General of the Federation v. The Attorney-General of Lagos State (2013) 16 NWLR (Pt.1380) 249 at 327 per I. T. Muhammad, JSC.
According to the eminent and erudite jurist, Niki Tobi, JSC the doctrine of covering the field arises in two circumstances.
(i) where the Constitution has already made provisions covering the subject matter of a purported Federal Act or a purported State Law, and
(ii) where a State House of Assembly enacts a Law which an Act of the National Assembly has already made provisions covering the subject matter of the State Law.
See Independent National Electoral Commission v. Alhaji Abdulkadir Balarabe Musa (2003) 3 NWLR (Pt. 806) 72 at 204.
The Supreme Court, per Kekere-Ekun, JSC in its recent decision in Attorney-General, Lagos State v. Eko Hotels Limited & Anor. (Appeal No. SC. 321/2007) delivered on 08/12/2017 stated as follows:
The doctrine of covering the field, is essentially that where the main, principal law has covered a given field or area, any other subsidiary law made in that area or field cannot operate side by side with the principal law, it has to be declared void to the extent of its inconsistency.
It should be noted, however, that it has been held that the doctrine would apply where both the Federal and State legislatures can legislate as in matters under the Concurrent Legislative List per Tobi, JSC in Independent National Electoral Commission v. Alhaji Abdulkadir Balarabe Musa (supra).
In this case, as stated earlier, matters of pure environment, such as ecology, fall within the exclusive legislative list, and only the National Assembly can validly legislate on it. Assuming, however, that ecology does not fall completely within the exclusive legislative list and a State House of Assembly has the concurrent power to legislate on it, since the matters contained in the Delta State Ecology Law, 2006 have been covered by the Federal enactments, earlier referred to in this judgment, the state Law shall not be operative as, in law, it is nothing more than a mere surplusage. See Attorney-General of Abia State v. Attorney-General of the Federation (2002) 3 SCNJ 158 at 391, per Uwais, CJN and Independent National Electoral Commission & Anor. v. Alhaji Abdulkadir Balarabe Musa & Ors. (2003) 3 NWLR (Pt. 806) 72 at 204
On page 9 of the respondents brief, learned counsel submitted that there is no provision in the Ecology Law 2006 that is inconsistent with the Federal Environmental Protection Act or the Taxes and Levies Approved List for Collection Act No. 21 1998. Learned counsel then proceeded to carry out a comparison between the State Law and the Federal Act on pages 10 15 of the respondents brief to buttress this argument. Assuming, without confirming, that the provisions of the Delta State Ecology Law, 2006 are not inconsistent or in conflict with the provisions of the Federal Acts, since the areas legislated upon by the Delta State House of Assembly have been covered by various Federal Acts enacted within the accepted concurrent legislative authority of the National Assembly, the Delta State Ecology Law ought to be put in abeyance in due deference or obeisance to the Federal might in a true federalism. See Independent National Electoral Commission & Anor. v. Alhaji Abdulkadir Balarabe Musa & Ors. (2003) 3 NWLR (Pt. 806) 72 at 204.
In its judgment, the trial Court confined itself to only the issues of whether or not the obiter dicta of Uwaifo, JSC in Attorney-General of Lagos State v. The Attorney-General of the Federation & Ors. (supra) is binding and whether the Delta State House of Assembly is competent to legislate on the area of ecology and/or environment as it has done in the Delta State Ecology Law of 2006 and the Ecology Tariff 2006. Having resolved these two issues against the appellant, the trial Court, without more, dismissed the appellants action. It is clear therefore, that the trial Court did not adequately and fully consider and determine the appellants claim.
For the totality of the reasons given above, I am of the view that the three issues identified in this appeal ought to be resolved in favour of the appellant. All the three issues in this appeal are hereby resolved in favour of the appellant and against the respondents.
This appeal, therefore, has merit and it is hereby allowed. The judgment of the trial Court, per Azinge, J; delivered on 22/03/2010 in Suit No. W/105/2009 is hereby set aside.
In place of the judgment of the trial Court, I determine Issues 1, 2, 3, 4 and 5 set out in the appellants originating summons, and which were reproduced at the beginning of this judgment, respectively, in favour of the plaintiff/appellant.
Accordingly the plaintiff/appellants claims, also earlier reproduced in this judgment, are granted as follows:
1. It is hereby declared that the taxes, tariffs and rates as described in the unsigned letter dated 2nd August, 2007 received by the plaintiff/appellant from the Delta State Ministry of Environment through Waoj Vent. Int. Ltd. together with the annexure thereto (exhibit CNL.1) and the action/claim for N2,148,000,000.00 (Two billion, one hundred and forty-eight million naira) as Environment Permit filed at the Revenue Court, Warri (exhibit CNL2) demanded by the defendants/respondents are unconstitutional, inconsistent and contrary to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Taxes and Levies (Approved List for Collection) Decree No. 21 of 1998 and are therefore null and void.
2. It is also declared that the plaintiff/appellant cannot be compelled to pay the amount contained in exhibits CNL 1 and CNL 2.
3. It is hereby further declared that the Delta State Ecology Law, 2006 and the Delta State Ecology Tariff 2006 are unconstitutional, inconsistent with and contrary to the provisions of the Constitution of the Federal Republic if Nigeria, 1999 (as amended), the Taxes and Levies (Approved List for Collection) Decree No. 21 of 1998, the Federal Environmental Protection Agency Act and all other relevant existing Laws of the Federal Republic of Nigeria and are therefore null and void.
4. An order of perpetual injunction is hereby granted restraining the Delta State Government whether by itself or by its servants, agents, privies and/or whomsoever acting for and on their behalf from collecting, levying and demanding from the plaintiff/appellant such rates, taxes and tariffs as contained in the Delta State Ecology Law, 2006 and Ecology Tariff 2006 and all other rates, taxes and tariff that are inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Taxes and Levies (Approved List for Collection) Decree No. 21 of 1998.
The parties are ordered to bear their respective costs both in the trial Court and in this Court.
PHILOMENA MBUA EKPE, J.C.A.: I read in advance the judgment delivered by my learned brother M.A.A. ADUMEIN, JCA. I agree entirely with the reasoning and conclusions reached therein.
Having resolved the three issues raised in this appeal against the Respondent in favour of the Appellant it is my humble view that this appeal is meritorious and is therefore allowed.
The judgment of the trial Court, delivered by Azinge, J. on the 22nd day of March, 2010 in Suit No. W/105/2009 is hereby set aside. Accordingly, I abide by the order as to costs in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the judgment just delivered by my brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I agree that this appeal is meritorious and should be allowed. I allow the appeal and abide by the orders contained in the lead judgment
Appearances
A.V. Atuwewe, Esq. with him, Miss T.J. Leko and Miss E.U. Ilokhor For Appellant
AND
C.O. Agbagwu, Esq. (Assistant Director, Delta State Ministry of Justice) For Respondent
