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Att.-Gen., Abia State vs. Att.-Gen., Federation

1.             ATTORNEY-GENERAL OF ABIA STATE

2.             THE ATTORNEY-GENERAL OF ADAMAWA STATE

3.             THE ATTORNEY-GENERAL OF AKWA IBOM STATE

4.             THE ATTORNEY-GENERAL OF ANAMBRA STATE

5.             THE ATTORNEY-GENERAL OF BAUCHI STATE

6.             THE ATTORNEY-GENERAL OF BAYELSA STATE

7.             THE ATTORNEY-GENERAL OF BENUE STATE

8.             THE ATTORNEY-GENERAL OF BORNO STATE

9.             THE ATTORNEY-GENERAL OF CROSS RIVER STATE

10.         THE ATTORNEY-GENERAL OF DELTA STATE

11.         THE ATTORNEY-GENERAL OF EBONYI STATE

12.         THE ATTORNEY-GENERAL OF EDO STATE

13.         THE ATTORNEY-GENERAL OF EKITI STATE

14.         THE ATTORNEY-GENERAL OF ENUGU STATE

15.         THE ATTORNEY-GENERAL OF GOMBE STATE

16.         THE ATTORNEY-GENERAL OF IMO STATE

17.         THE ATTORNEY-GENERAL OF JIGAWA STATE

18.         THE ATTORNEY-GENERAL OF KADUNA STATE

19.         THE ATTORNEY-GENERAL OF KANO STATE

20.         THE ATTORNEY-GENERAL OF KATSINA STATE

21.         THE ATTORNEY-GENERAL OF KEBBI STATE

22.         THE ATTORNEY-GENERAL OF KOGI STATE

23.         THE ATTORNEY-GENERAL OF KWARA STATE

24.         THE ATTORNEY-GENERAL OF LAGOS STATE

25.         THE ATTORNEY-GENERAL OF NASARAWA STATE

26.         THE ATTORNEY-GENERAL OF NIGER STATE

27.         THE ATTORNEY-GENERAL OF OGUN STATE

28.         THE ATTORNEY-GENERA L OF ONDO STATE

29.         THE ATTORNEY-GENERAL OF OSUN STATE

30.         THE ATTORNEY-GENERAL OF OYO STATE

31.         THE ATTORNEY-GENERAL OF PLATEAU STATE

32.         THE ATTORNEY-GENERAL OF RIVERS STATE

33.         THE ATTORNEY-GENERAL OF SOKOTO STATE

34.         THE ATTORNEY-GENERAL OF TARABA STATE

35.         THE ATTORNEY-GENERAL OF YOBE STATE

36.         THE ATTORNEY-GENERAL OF ZAMFARA STATE

V

ATTORNEY-GENERAL OF THE FEDERATION

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN ( Presided )

SALIHU MODIBBO ALFA BELGORE, JSC ( Read the lead Judgment )

ADRIS LEGBO KUTIGI, JSC

MICHAEL EKUNDAYO OGUNDARE, JSC

SYLVESTER UMARU ONU, JSC

ANTHONY IKECHUKWU IGUH, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

SC. 227/2002

FRIDAY, 31ST JANUARY, 2003

CONSTITUTIONAL LAW - Allocation of Revenue (Federation Account, etc) Act No. 16 Laws of the Federation 1990 (as amended) - Scope and extent of the President’s power to modify under section 315 of the 1999 Constitution

CONSTITUTIONAL LAW - Constitution - Supremacy of

CONSTITUTIONAL LAW - Constitution of the Federal Republic of Nigeria 1999 , section 162(2) and (3) interpretation of

CONSTITUTIONAL LAW - Constitutional doctrine - Whether proper to challenge a provision of the constitution as being in violation of

CONSTITUTIONAL LAW - Doctrine of separation of powers - Whether the power given to the President to modify existing laws under section

315  of the 1999 Constitution is in contravention of

CONSTITUTIONAL LAW - Existing law - Condition for the acceptance of under section 315(1) & (2) of the 1999 Constitution

CONSTITUTIONAL LAW - Ideal principles of constitutional law - Whether could be excluded by the Constitution itself

CONSTITUTIONAL LAW - Interpretation of provisions of the Constitution -  Presumptions

CONSTITUTIONAL LAW - Modification of Allocation of Revenue ( Federation Account, etc.) Act, Cap. 16, Laws of the Federation, 1990 ( as amended) - Constitutionality of the exercise of the power so to do by the President of the Federal Republic of Nigeria

CONSTITUTIONAL LAW - Provisions of the constitution - Duty of court to give effect thereto

CONSTITUTIONAL LAW - Revenue allocation formula - Due process for the enactment of - Section 162(2), 1999 Constitution

CONSTITUTIONAL LAW - Separation of power - Concept of - Principle behind

COURT - Duty on to give effect to all provisions of the constitution

INTERPRETATION - Constitution of the Federal Republic of Nigeria 1999, section 162(2) and (3) - Interpretation of

INTERPRETATION - Constitution - Presumptions to interpretation of provisions

JUDICIAL PRECEDENT - Att.-Gen., Abia State vs. Att.-Gen., the

Federation (2002) FWLR (Pt. 102) 1 - Rationes decidendi therein Whether paragraphs 2(1)(a) and (3) of Allocation of Revenue ( Federation Account etc.) Modification Order No. 9 of 2002 violate same

STATUTE - Allocation of Revenue (Federation Account, etc.) Act, Cap. 16 , Laws of the Federation 1990 - Modification of - Constitutionality of the exercise of the power so to do by the President of the Federal Republic of Nigeria

STATUTE - Allocation of Revenue (Federation Account, etc.) Act, No. 16, Laws of the Federation of Nigeria 1990 (as amended) - Modification of - Scope and extent of the President’s power under section 315 of the 1999 Constitution

WORDS AND PHRASES - ‘Appropriate authority’ - Meaning of

WORDS AND PHRASES - ‘Modification’ - Meaning of WORDS AND PHRASES - The word ‘text’ - Meaning of

Issues:

1.            Whether section 315 of the Constitution of the Federal Republic of Nigeria, 1999 authorises the President to amend the Allocation of Revenue (Federation Account, Etc.) Act Cap. 16 , Laws of the Federation of Nigeria, 1990, as amended by the Allocation of Revenue (Federation Account, Etc.) ( Amendment) Act, 1992 in the manner and to the extent contained in paragraphs 2(1)(a) and 3 of the Allocation of Revenue (Federation Account, etc.) (Modification) Order 2002.

2.            Whether paragraph 2(1)(a) and 3 of the Allocation of Revenue ( Federation Account etc.) (Modification) Order 2002 made by the President of the Federal Republic of Nigeria are not contrary to and in disobedience of the judgment of this Honourable Court in Suit SC/28/2001 between Att.-Gen. of the Federation vs. Att.-Gen. of Abia State & 35 Others (2002)  FWLR (Pt.  102) 1 , (2002) 6 NWLR (Pt. 764) 542 delivered on Friday 5th April, 2002.

Facts:

The plaintiffs filed this action in the original jurisdiction of the Supreme Court challenging the statutory instrument No. 9 of 2002 wherein the President of the Federal Republic of Nigeria made an order modifying the Allocation of Revenue (Federation Account, Etc.) Act, No. 16 of 1990 (as amended) by Allocation of Revenue (Federation Account, etc.) (Amendment) Act (No. 106) of 1992.

The President relying on section 315 of the Constitution, especially subsections (1)(a), (2) and (4)(a)(i) thereof made the Order now in issue i.e. Allocation of Revenue (Federation Account, etc.) Order 2002 on 8th day of May, 2002, with restrospective effect from the 29th May, 1999 and thereby altered the existing formula in the Principal Act (No. 16) of 1990 as amended by Act (No. 106) of 1992. The law as it existed before 8th May 2002 provided allocation formula inter alia as follows in section 1(a) to (e):

“(a)        The Federal Government         ...            48.5%

(b)         The State Government      ...         24 %

(c)          Local Governments           ...         20 %

(d)         Special Funds        ...         7.5%

On the 5th of April, 2002, the Supreme Court declared amongst others as null and void and unconstitutional the allocation of 7.5% of the Federation

Account to “special funds” contrary to section 162(3) of the 1999 Constitution which provides for distribution of the Federation Account amongst the three tiers of government only. That decision was in the case of Att.-Gen., Federation vs. Att-Gen., of Abia State & 35 ors. (2002)  FWLR (Pt. 102)  1.

After the court’s decision, the President made the order now in issue providing a new allocation formula which reads -

(a)          the Federal Government    56 %

(b)         the State Government        24 %

(c)          the Local Government Councils    20 %

The significant point to note in the Order, however, is the provision in section 3(2)(1) which reads thus:

“3(2)(1) The 56.00 per cent specified in section 1(a) of this Act (Order) shall be allocated to the Federal Government and utilized as follows:-

(a)                   Federal Government      -         48.50 per cent

(b)                   General Ecological Problems   -    2.00 per cent (c) Federal Capital Territory        -    1.00 per cent (d) Stabilisation Account        -    1.50 per cent (e) Development of Natural

Resources                -   3.00 per cent”

The plaintiffs’ case is that the Order is a direct nullification of the Supreme Court’s decision in Att.-Gen., Federation vs. Att-Gen., of Abia State & 35 Ors. (supra). Thus, they ask for the following in paragraph 8 of their amended statement of claim:

“(i) DECLARATION that paragraphs 21(1)(a) and (3) (of) the Allocation of Revenue (Federation Account, Etc.) ( Modification) Order 2002 are unconstitutional, null and void and of no effect whatsoever.

(ii) An ORDER directing the defendant to calculate 7.5% of the Federation Account and divide and distribute the same amongst the parties hereto and each of the Local Government Councils in the States of the Federation as approved in the Allocation of Revenue (Federation Account, Etc) Act, Cap. 16, Laws of the Federation of Nigeria, 1990.”

In determining the dispute, the court considered the following legislations and provisions of the Constitution reproduced hereunder as follows:

Paragraphs 2 and 3 of the Allocation of Revenue (Federation Account, Etc) (Modification) Order 2002 provides:

“2.     Section 1 of the principal Act is hereby modified by substituting therefore the following:-

1. The amount standing to the credit of the Federation Account, less the sum equivalent to 13 per cent of the revenue accruing to the Federation Account directly from

any natural resources as a first line charge for distribution to the beneficiaries of the derivation funds in accordance with the Constitution shall, be distributed among the Federal and State Governments and the local government councils in each state of the Federation on the following basis, that is to say -

(a)

the Federal Government

56.00 per cent

(b)

the State Government

24.00 per cent

(c)

the Local Government

 

 

Councils

20.00 per cent

3. Section 2 of the principal Act is modified by substituting for subsections (1) and (2) thereof the following new subsections-

2(1) The 56.00 per cent specified in section 1(a) of this Act shall be allocated to the Federal Government and utilised as follows-

(a)

Federal Government    -

48.50 per cent

(b)

General Ecological Problems -

2.00 per cent

(c)

Federal Capital Territory -

1.00 per cent

(d)

Stabilisation Account   -

1.50 per cent

(e)

Development of Natural -

3.00 per cent

Resources

(2) The 24.00 per cent standing to the credit of all the states in the Federation Account as specified in section 1(b) of this Act shall be distributed among the states of the

Federation using the factors specified in this Act.” Section 315(1) of the 1999 Constitution provides as follows:

“315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be -

(a)           an act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered to make laws; and

(b)          a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2)          The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.”

Section 162(2) and (3) of the 1999 Constitution provides as follows: “(2) The President, upon the receipt of advice from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of states, internal revenue generation, land mass, terrain as well as population density:

Provided that the principle of derivation shall be constantly reflected in an approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources.

(3)          Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the local government councils in each state on such terms and in such manner as may be prescribed by the National Assembly.”

Section 4(1)-(4) of the 1999 Constitution provides as follows:

“(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 or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(3)         The power of the National Assembly to make laws for 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.

(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 the

Constitution.”