THE ATTORNEY GENERAL OF BENDEL STATE v. THE ATTORNEY GENERAL OF THE FEDERATION AND OTHERS ([node:field-casenumber]) [1983] 9 (03 June 1983);

  • Home
  • /
  • THE ATTORNEY GENERAL OF BENDEL STATE v. THE ATTORNEY GENERAL OF THE FEDERATION AND OTHERS ([node:field-casenumber]) [1983] 9 (03 June 1983);

Search summary:

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 3RD DAY OF JUNE 1983

BETWEEN

THE ATTORNEY GENERAL OF BENDEL STATE ....................................... APPELLANTS

AND

THE ATTORNEY GENERAL OF THE FEDERATION AND OTHERS .................................... RESPONDENTS

BEFORE: Sowemino Irikefe, Bello, Idigbe, Obaseki, Eso, Uwais; JJ.S.C.

 

In the discharge of its power under section 149(3) of the Constitution the National Assembly enacted the Allocation of Revenue (Federation Account etc) Act, No. 1 of 1982, the purpose of which was to prescribe a basis for distribution of revenue accruing to the Federation Account between the Federal, State and Local Governments, and a formula for distribution among the states.

By various letters (which were not replied) the plaintiff complained to the first respondent that certain portions of the Revenue Allocation Act were unconstitutional and void. The portions which were the subject of complaint are:

(a) Section 2(1) which provided for the fund to be administered by the Federal Government for the “amelioration of ecological problems in any part of Nigeria.”

(b) Section 2(2) which provides for a fund to be administered by the Federal Government for the development of mineral producing areas in Nigeria, and

(c) Section 6(1) which provides for the establishment of a Joint Local Government Account Allocation committee for the state.

As a result of this unanswered complaint the plaintiff brought an action under the original jurisdiction of the Supreme Court by virtue of section 212 of the Constitution 1979 and sought in addition to the above a declaration that it was entitled to receive, regularly statement of moneys paid by the Federal Government into the Federation Account kept pursuant to section 149 of the constitution.

After the parties had joined issues, the rest of the Attorneys–General of all the states were joined by direction of court as the issue to be determined was of general importance.

 

HELD:

(1) By section 149(2) of the Constitution the amount in the Federation Account is public revenue accruing to the Federal Government, State Governments and the Local Government in each State and section 149(3) contemplates that the amount standing to the credit of State Government will be distributed among them. This provision is mandatory, for the subsection says the amount “shall be distributed” and there is no provision under section 149 or indeed under any other part of the Constitution which expressly or impliedly authorise the Federal Government to retain on behalf of the beneficiary states any portion of the revenue due, to the states from the Federation account.

(2) Once the Federation Account is divided amongst the three tiers of government, the State Governments collectively become the absolute owners of the share that is allocated to them, so that it would normally be their prerogative to exercise full control over the share, consequently it would not be appropriate for the Federal Government to administer the share without the authorisation of the State Government. This is in keeping with the fundamental principle of federalism on the autonomy of the constituent states.

(3) By the creation of funds for the amelioration of ecological problems and the development of mineral producing areas, the National Assembly purported to exercise its power under section 149(3) of the Constitution, but failed to prescribe the formula by which the funds are to be distributed among the beneficiary states. For this reason the authorisation of the Federal Government to administer the funds are ultra vires the National Assembly.

(4) As a general principle of constitutional law, it is implicit in the character of a Federal constitutional that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true Federation involves the division and limitation of governmental power.

(5) Although there is a clear demarcation of power under the Constitution between the Federation and the States, as it is the case with most Federal constitutions, there are however parts of the Constitution which specifically provide for the overlapping of authority for instance by virtue of sections 150(b), 195(4), 250(1), 251(3) and item D of the current Legislative List of the 1979 Constitution, the states are empowered to impose duty on Federal functionaries and vice versa.

(6) It accordingly follows that in character the Constitution makes it possible for both the National Assembly and a State House of Assembly to impose duty on or invest power in State and Federal functionaries respectively where there is an express or implied provision under the Constitution that gives the enabling power.

(7) The phrase “on such terms and in such manner as may be prescribed” which is found under section 149(4) of the Constitution, bestows on the National Assembly extensive powers to legislate in respect of the allocation of the Federation account to state Local Government Councils.

(8) Similar power is also given to the National Assembly under section 149(6) of the Constitution and item A paragraph 1(a)(iv) of the concurrent Legislative List to legislate with regard to the payment or distribution and “division” of the amount so allocated. Therefore when the National Assembly enacted sections 6(1) of Act No. 1 of 1982, which created the State Joint Local Government Account Allocation Committee, it must have done so in the exercise of either one or all of these enabling powers.

(9) Accordingly the National Assembly was competent to make the enactment (i.e. Act No. 1 of 1982). The establishment and composition of the Joint Local Government Allocation Committee are intra vires the National Assembly and therefore valid.

(10) The powers of National Assembly under section 149(6) of the 1979 Constitution and those of a State House of Assembly under section 149(7) are concurrent, and as such, laws made under the two subsections are subject to section 4(5) of the Constitution.

(11) Thus any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.

(12) Section 6(1) of Act No. 1 of 1982 is constitutional and valid since the National Assembly has the power to make the enactment by virtue of the provisions of section 149(4) and (6) of the Constitution.

(13) The position of the Federal Government in maintaining the Federation Account is by virtue of section 149(1) of the Constitution, that of a trustee for the State Governments and the Local Government Councils of the States.

(14) It is settled that it is the duty of a trustee to keep a proper account of the trust he administers and the beneficiary has a right to call upon the trustee for accurate information as to the state of the trust. Consequently, it is imperative for the Federal Government to render accurate and regular account to the beneficiaries of all moneys paid into the Federation Account when requested to do so.

Plaintiff action succeeds in part.

Chief F.R.A. Williams, (S.A.N.) (with O.N. Rewane and O.K. Aderinokun (Mrs)), for Appellant.

F. Nwadialo, Federal Assistant Director of Civil Litigation, for first Defendant.

Second Defendant, unrepresented.

Third Defendant, unrepresented.

Fourth Defendant, unrepresented.

L O. Sanyaolu (A.G., Borno State), (with B.K. Ba’aba), for fifth Defendant.

E.B. James C.S.G. Cross River State, (with E.E. Ekanem, Director Civil Litigation), for sixth Defendant.

B. K. Ba’aba, for seventh Defendant.

Chief G. U. Osuji (A.G. Imo State), (with E.O. Okpaleke, Senior State Counsel), for eighth Defendant.

S.M. Gaiya, for ninth Defendant.

Tenth Defendant, unrepresented.

Eleventh Defendant, unrepresented.

Chief F. Alokolaro (A G. Lagos State), (with D. Akinsanys (Mrs) and A. Alabi), for 12th Defendant.

Thirteenth Defendant, unrepresented.

Chief A. Adaramaja (A. G. Ogun State), (with K.G. Okuwa (Mrs) and Chief O.Osidipe), for 14th Defendant.

E. O. Olamosu (Deputy Solicitor–General Ondo State, (with W.A. Aladedutire), for 15th Defendant.

R. S. Aruna, D.D.L. and A.S. Oyo State, (with O. O. Oyetunde), for 16th Defendant.

A. K. Dabi, (Legal Draftsman Plateau State), for 17th Defendant.

M. D. Goodhead, (Principal State Counsel Rivers State), for 18th Defendant.

J. Omokri, (D.P.P. Sokoto State), for 19th Defendant.

Cases referred to:–

(1) Attorney–General of Bendel State v. Attorney–General of the Federation, (1982) 3 N.C.L.R. 1.

(2) Attorney–General for Ontario v. Reciprocol Insurers and Attorney–General for Canada (1924) A. C. 382.

(3) Great West Saddlery Co. v. The King (1921) A. C. 91.

(4) Hammer v. Dagenhart (1918) 247 U.S. 275.

(5) Hoke v. United States 227 U.S. 308.

(6) Melbourne Corporation v. The Commonwealth (1946-1947) 74 C.L.R. 31.

(7) United States v. California (1936) 297 U.S. 175.

(8) United States v. Darby (1941) 312 U.S. 100.

Statutes referred to:–

(1) The 1979 Constitution of the Federation.

(2) The Allocation of Revenue (Federation Account etc) Act, No. 1, 1982.

Uwais, J.S.C. The National Assembly enacted the Allocation of Revenue (Federation Account etc.), Act, 1981 (No. 1 of 1982) (hereinafter referred to as “Act No. 1 of 1982”) as contemplated by section 149 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as “the Constitution”). The object of Act No. 1 of 1982 is ascertainable from its preamble which runs as follows:

“An Act to prescribe the basis for distribution of Revenue accruing to the Federation Account between the Federal and State Governments and the Local Government Councils in the States; the formula for distribution amongst the States inter se; the proportion of the total Revenue of each State to be contributed to the State Joint Local Government Account; and for other purposes connected there with.”

By invoking the original jurisdiction of the court under section 212 of the Constitution, the Attorney–General of Bendel State commenced this suit against Attorney–General of the Federation by a Statement of Claim in which he asked for the following:

“1. A declaration that subsections (1) and (2) of section 2 of the allocation of Revenue (Federation Account etc.) Act, 1981 is unconstitutional and void insofar as each of the said subsections makes provision for a fund to be administered by the Federal Government.

2. A declaration that subsection (1) of section 6 of the aforesaid Act is unconstitutional and void insofar as it enacts the establishment of a body to be known as the Joint Local Government Account Allocation Committee.

3. A declaration that the Government of Bendel State is entitled to have from time to time a true and correct statement of all moneys paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution.”

In view of the nature of the claim we directed that the Attorneys–General of the rest of the 18 States of the Federation be put on notice as interested parties and this was done. At the hearing all the 18 States but six namely, Anambra, Bauchi, Benue, Kano, Kwara and Niger were represented by Counsel.

The facts of the case are not in the main in dispute as the plaintiff has admitted paragraphs 9 to 13 inclusive of the first defendants’ statement of defence. Now, paragraphs 4, 5 and 6 of the Statement of Claim read:

“4. By a letter dated 24th February, 1982, the plaintiff complained to the (first) defendant that certain portions of sections 2 and 6 of the Revenue Allocation Act (sic) were unconstitutional and void and asked for an opportunity to discuss the matter. However the defendant failed or neglected to respond in spite of a reminder dated 11th March, 1982.

5. The particulars of the portions of sections 2 and 6 of the Revenue Allocation Act (sic) which the plaintiff says are unconstitutional and void are as follows:

(a) Section 2(1) insofar as it makes provision for ‘a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria.’

(b) Section 2(2) insofar as it makes provision for ‘a fund to be administered by the Federal Government for the development of mineral producing areas in Nigeria.’

(c) Insofar as it provides for the establishment of a Joint Local Government Account Allocation Committee for each State, section (6(1) of the Revenue Allocation Act (sic).

6. Since the present Administration took office in October, 1979, it had never submitted to the plaintiff any statement of moneys paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution of the Federal Republic of Nigeria.”

In his statement of defence, the first defendant admitted receiving the plaintiff’s letter of 24th February, 1982 and asserted that the letter was replied on 10th March, 1982. Paragraphs 5 and 6 of the Statement of Claim (which are quoted above) were denied and the statement of defence went on, inter alia, to make the following averments in paragraphs 9 to 13 inclusive which as hereinbefore stated, were admitted by the plaintiff:

“9. That as provided by the said Act, a Federation Account Allocation Committee had also been established to ensure that allocations due to the States from the Federation Account are paid promptly in accordance with the formula provided by the Act (No. 1 of 1982).

10. That the plaintiff is represented by the Bendel State Commissioner for Finance in (the) said Federation Account Allocation Committee.

11. That between the 10th and 15th of every month, the Federation Account Allocation Committee meet to confirm and approve the monthly statement of the Federation Account as submitted by the Central Bank of Nigeria.

12. That at these meetings members of the Committee are given ample opportunity to accept or reject entries made in the statement of the Federation Account and to seek necessary clarifications.

13. Officials of the Treasury Department, Inland Revenue Department, Nigerian National Petroleum Corporation and the Central Bank are also invited to these meetings to answer any questions or make any clarifications that may arise.”

The plaintiff adduced evidence by calling, as a witness, Mr F.G. Omoarukhe, the Deputy Accountant–General of Bendel State, who testified to the effect that the Government of Bendel State had not been receiving, regularly, the statement of the Federation Account kept with the Central Bank of Nigeria. No other witness was called by any of the parties.

I think it is pertinent at this stage to set out the provisions of Act No. 1 of 1982 which are relevant to this case. Sections 1, 2 and 6 thereof read as follows:

“1. The amount standing to the Federation Account (as specified in subsection (1) of section 149 of the Constitution of the Federal Republic of Nigeria, 1979) shall be distributed by the Government of the Federation among the various governments in Nigeria on the following basis, that is to say:

(a) Federal Government. . . 55 percent.

(b) State Governments. . . 35 percent.

(c) Local Government Councils. . . 10 percent.

2.

(1) The 35 percent specified in section 1(b) of this Act shall be sub-divided and allocated as follows, that is as to 30.5 percent thereof, to all the States; as to 1 percent thereof, to be paid into a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and as to the balance of 3.5 percent thereof, to be shared on the basis of derivation, in the manner set out in subsection (2) below.

(2) The 3.5 percent specified in subsection (1) above shall be subdivided and allocated as follows, that is 2 percent shall be paid directly to the 35 States concerned indirect proportion to the value of minerals extracted from the territory of the State and the balance of 1.5 percent shall be paid by the Government of the Federation into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be managed in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from and around the particular areas.”

“6.

(1) There is hereby established for each State in the Federation a body to be known as the State Joint Local Government Account Allocation Committee which shall compromise the following members, that is to say:

(a) the Commissioner charged with the responsibility for local government in the State to be Chairman thereof;

(b) the Chairman of each local Government Council in the State;

(c) two persons to be appointed by the Governor of the State;

(d) two representatives of the Accountant–General of the Federation; and

(e) the Accountant–General of the State.

(2) The Permanent Secretary of the State Ministry charged with responsibility for local government or such officer as may be designated by the said Commissioner shall be the Secretary to the Committee.

(3) The functions of the Committee shall be to ensure that allocations made to the local Government Councils in the State from the Federation Account and from the State concerned are promptly paid into the State Joint Local Government and distributed to local Government Councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State.”

In section 149, the Constitution provides:

“149

(1) The Federation shall maintain a special account to be called ‘the Federation Account into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

(2) 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.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

(4) The amount standing to the credit of local Government Councils in the Federation Account shall also be allocated to the States for the benefit of their local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.

(5) Each State shall maintain a special account to be called State Joint Local Government Account into which shall be paid all allocations to the local Government Councils of the State from the, Federation Account and from the Government of the State.

(6) Each State shall pay to local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(7) The amount standing to the credit of the local Government Councils of a State shall be distributed among the local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.”

Furthermore, item A, paragraph 1 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution provides, in part, as follows:

“A–Allocation of revenue, etc.

1. Subject to the provisions of this Constitution, the National Assembly may by an Act make provisions for:

(a) the division of public revenue:

(i) between the Federation and the States,

(ii) among the States of the Federation,

(iii) between the States and Local Government Councils,

(iv) among the Local Government Councils in the States; . . .”

In his address, at the close of the case for the defence, Chief Williams, learned Counsel for the plaintiff canvassed the first claim for a declaration that subsections (1) and (2) of section 1 of Act No. 1 of 1982 are, as impugned, unconstitutional and void. He began by saying that the power of the National Assembly under section 149 of the Constitution is to divide moneys paid into the Federation Account amongst the three tiers of government, namely the Federal, State and Local Governments; and argued that the National Assembly cannot set aside any portion of the Federation Account for a purpose that is different from providing revenue to the said tiers of government. If he is wrong in this contention, he argued in the alternative, that the National Assembly cannot allocate part of the Federation Account for a purpose outside its legislative competence and submitted that where the National Assembly establishes a fund for the Federation such fund can only be augmented out of moneys payable under an Appropriation Act or Supplementary Appropriation Act. He referred to sections 74, 75 and 77 of the Constitution which respectively deal with–(1) the establishment of Consolidated Revenue Fund of the Federation (2) the authorisation of expenditure from the Consolidated Revenue Fund of the Federation and (3) the establishment of Contingencies Fund of the Federation; and submitted that if section 2 of Act No. 1 of 1982 is held to be valid it will offend against the said sections of the Constitution.

He next referred to section 149 subsection (2) of the Constitution and said that the word “distribute” in the subsection connotes that there should be a recipient of the amount standing to the credit of the Federation Account, that is either the Federal Government, or State Governments or State Local Governments, but not a purpose such as “ecological problem” or “development.” It was further argued that the purposes set out under section 2 subsections (1) and (2) of Act No. 1 of 1982 are outside the Legislative Lists under the Constitution and are, therefore, beyond the competence of the National Assembly.

Finally it was contended that the purposes specified under section 2(1) and (2) of Act No. 1 of 1982 exceed the executive authority of the President of the Federal Republic of Nigeria under section 5(1)(b) of the Constitution because, on the basis of the earlier submissions, the National Assembly cannot make law for the amelioration of ecological problems and development of mineral producing areas.

In reply, Mr Nwadialo, learned Counsel for the first defendant, drew attention to the phrase “on such terms and in such manner as may be prescribed by the National Assembly” which is numerously employed in section 149 of the Constitution. He argued that the phrase gives the National Assembly extensive power to legislate and that the power is limited only in two respects. The first limitation, he said, is that the National Assembly should not in the exercise of the power infringe on any authority which has been given exclusively to the States by the Constitution. While the second limitation is that the allocation of revenue made under section 149(3) of the Constitution to the States should be shared among the States only. He then categorised, into direct and indirect, the allocation of revenue from the Federation Account to the States and referred to the 30.5 percent mentioned in section 2(1) of Act No. 1 of 1982 as a direct allocation and the 1 percent together with 1.5 percent set aside under section 2, subsections (1) and (2) of the Act for the amelioration of ecological problems and development of mineral producing areas as indirect allocations.

Mr James learned Solicitor–General of Cross River State and Mr Omokri, learned Director of Public Prosecutions of Sokoto State for the sixth and 19th defendants respectively adopted the argument of Mr Nwadialo while the other learned Counsel for the rest of the defendants by and large associated themselves with the argument of Chief Williams.

Now, section 149 of the Constitution is of special importance, and, indeed, contains the scheme for the establishment, allocation and distribution of the public revenue that constitutes “the Federation Account.” The power of the National Assembly as regards the prescription of the “terms and manner” of the allocation or distribution of the Federation Account which is mentioned in subsections (2), (3), (4) and (6) of section 149 of the Constitution is undoubtedly very wide. However, we had occasion to point out in Attorney–General of Bendel State v. Attorney–General of the Federation and 22 others (1982) 3 N.C.L.R. 1 at 42, 68 and 146 that in exercising the power the National Assembly should be cautions not to infringe on the constitutional powers of the States.

The question is whether in making the provisions in section 2 subsections (1) and (2) of Act No. 1 of 1982 for (1) a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and (2) a fund to be administered by the Federal Government for the development of mineral producing areas, the National Assembly had acted ultra vires. It cannot be disputed that the purpose of the Act as shown by its preamble is to effectuate the contemplation of the Constitution under section 149 thereof. The distribution of the Federation Account among the three tiers of government as envisaged by section 149(2) of the Constitution is manifested by section 1 of Act No. 1 of 1982. Secondly, the National Assembly had intended that section 2 of Act No. 1 of 1982–part of which is now being impugned-should bring into operation the provisions of section 149(3) of the Constitution.

The first head of the plaintiff’s claim has been canvassed by Chief Williams as if the claim is for a declaration that the National Assembly had no power to establish funds from the States’ shares of the Federation Account for the purposes of the amelioration of ecological problems and the development of mineral producing areas. But it is quite clear from paragraph 5 of the plaintiff’s Statement of Claim and also claim (1) in the last paragraph thereof that the plaintiff’s complaint relates merely to the funds being administered by the Federal Government. So that the issue as to the validity of the establishment of the funds does not arise. It is, indeed, elementary that parties to a suit are bound by their pleadings. The plaintiff cannot therefore canvass what he, has not pleaded. However, this being a constitutional case, it becomes necessary to waive technicalities in order to get to the heart of the matter.

By section 149(2) of the Constitution the amount in the Federation Account is public revenue accruing to the Federal government, State Governments and the Local Governments in each State. Section 149 3) contemplates that the amount standing to the credit of State Governments will be distributed among them. This provision is mandatory, for the subsection says the amount “shall be distributed.” There is no provision under section 149 or indeed under any other part of the Constitution which expressly or impliedly authorises the Federal Government to retain on behalf of the beneficiary States any portion of the revenue due, to the States from the Federation Account.

It seems to me therefore that once the Federation Account is divided amongst the three tiers of government, the State Governments collectively become the absolute owners of the share that is allocated to them (i.e. 35 percent). So that it would normally be their prerogative to exercise full control over the share. Consequently, it will not be appropriate for the Federal Government to administer the share without the authorisation of the State Governments. This appears to be logical and in keeping with the fundamental principle of federalism on the autonomy of the constituent States.

By the creation of the funds for the amelioration of ecological problems and the development of mineral producing areas, the National Assembly purported to exercise its power under section 149 subsection (3) of the Constitution. It is important to point out that the National Assembly omitted to prescribe the formula by which the funds are to be distributed among the beneficiary States. This is in contrast with the 2 percent set-aside under section 2(2) of Act No. 1 of 1982 which is to be paid directly to the States in proportion to the value of minerals extracted from their territories. In the absence of such formula the distribution of the funds in question is left to the discretion of the Federal Government. It is therefore not clear what yardstick is to be adopted by the Federal Government in distributing the funds to the States. In other words the “manner” of the distribution has not been spelt out.

From the foregoing I am of the opinion that the National Assembly failed to keep to the contemplation of section 149 subsection (3) of the Constitution. I therefore hold that the creation of funds from the Federation Account for the amelioration of ecological problems and the development of mineral producing areas together with the authorisation of the Federal Government to administer the funds are ultra vires the National Assembly.

With regard to the second head of the plaintiff’s claim which craves for a declaration that section 6 subsection (1) of Act No. 1 of 1982 is unconstitutional and void. Chief Williams contended that the subsection imposes duty on the functionaries of States and is unconstitutional by reason of the decision of this Court in Attorney–General of Ogun State and others v. Attorney–General of the Federation and others, (1982) 3 N.C.L.R. 168 at 179, 189, 194 and 201-202. He argued further, in the alternative, that even if the subsection does not offend the Constitution as 15 such it will still be void for its inconsistency with Bendel State Local Government Law, 1980 (No. 1 of 1980). He said that although item A paragraph 1 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution (in particular paragraph 1(a)(iv) thereof) empowers the National Assembly to make provisions by enactment, for the division of public revenue among the Local Government Councils in the States, the power is subject to other provisions of the Constitution. He therefore submitted that the provisions of item A paragraph 1(a)(iv) of the Concurrent Legislative List conflict with the provisions of section 149(7) of the Constitution, and since the provisions of item A of the Concurrent Legislative List are subject to the provisions of section 149(7) of the constitution, the latter will, in view of the inconsistency, prevail over the former. In other words the provisions of Bendel State Local government Law, 1980 establishing a Joint Local Government Account Allocation Committee will prevail over those of section O subsection (1) of Act No. 1 of 1982. Learned Counsel for the plaintiff supported this argument by relying on the observations made by Professor D.O. Nwabueze in pp. 88 and 87 of his book. The Presidential Constitution of Nigeria.

Replying, Mr Nwadialo said that the function of the Joint Local Government Account Allocation Committee which has been established under section 6 subsection (1) of Act No.1 of 1982 is to supervise the payment of the allocation made to state, Local Government Councils. He contended that section 6(1) was enacted by the National Assembly by virtue of the provisions of section 140(4) of the Constitution and said that the States can set-up a similar committee under the provisions of section 149(7) of the Constitution. He submitted that where the National Assembly makes an enactment under section 149(4) of the Constitution and a State House of Assembly makes a similar enactment under section 149(7), the Federal enactment will prevail over the State Law by virtue of the provisions of section 4 subsection (5) of the Constitution. He argued further that there is no conflict between Act No. 1 of 1982 and the Bendel State Local Government Law, 1980 (No. 1 of 1980) since the purpose of the former is to allocate revenue while that of the latter is to distribute it. This, he said, is what subsections (4) and (7) of section 149 of the Constitution contemplated.

It is significant to mention that all the Counsel that appeared in this case associated themselves with the submission of Chief Williams that the composition of the Joint Local Government Account Allocation Committee as provided by section 6(1) of Act No. 1 of 1982 is unconstitutional in view of the decision of this Court in Attorney–General of Ogun State and others v. Attorney–General of the Federation (supra). I therefore propose to deal first with this point.

The issue that came up for the consideration of this Court (which was constituted by Fatai-Williams, C.J.N., Udoma, Irikefe, Bello. Idigbe, Eso and Aniagolu, JJ.S.C.), in Attorney–General of Ogun State and others v. Attorney–General of the Federation (supra) was whether the President of the Federal Republic of Nigeria can, in the exercise of his powers under section 274 of the Constitution confer powers or impose duties on the Governor of a State. It was held that the President could not do so. The decision also touched on the powers of the National Assembly to undertake similar exercise.

As a general principle of constitutional law, it is implicit in the character of a Federal Constitution that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true Federation usually involves the division and limitation of governmental power. Therefore the observations made by this Court in Attorney–General of Ogun State and others v. Attorney–General of the Federation (supra) conform with the general principle of federalism which recognises the autonomy of States.

In the present case the question is: could the National Assembly give powers or impose duties on State functionaries? I think before answering the question it will be necessary to examine, albeit briefly, the scheme of our Constitution. Although there is a clear demarcation of power under the Constitution between the Federation and the States, as is the case with most Federal Constitutions, there are however, parts of our Constitution which specifically provide for the overlapping of authority. That is to say that the States are empowered to impose duty on Federal functionaries and vice versa. For instance under item D of the Concurrent Legislative List, the National Assembly may authorise a State Government to collect tax or duty or administer law relating to capital gains, incomes or profits of persons (other than companies) and stamp duties. Similarly under sections 150(b) and 152 of the Constitution, the Federal Government is authorised to collect such tax on duty on behalf of the States. Also under section 195(4) of the Constitution, the Governor of a State or his Commissioner may give directions to the State Commissioner of Police who is a Federal functionary. Furthermore, under section 250(1) of the Constitution State Courts are vested with jurisdiction in respect of Federal Causes; and under section 251(3) of the Constitution, the decisions of a State High Court are to be enforced in any part of the Federation by “all authorities and persons.”

It accordingly follows that in character the Constitution makes it possible for both the National Assembly and a State House of Assembly to impose duty on or invest power in State and Federal functionaries respectively where there is an express or implied Provision under the Constitution that gives the enabling power.

As already shown the phrase “on such terms and in such manner as may be prescribed”, which is found under section 149 subsection (4) of the Constitution, bestows on the National Assembly extensive powers to legislate in respect of the allocation of the Federation Account to State Local Government Councils. Similar power is also given to the National Assembly under section 149 subsection (6) of the Constitution and item A paragraph 1(a)(iv) of the Concurrent Legislative List to legislate with regard to the payment or distribution and “division of the amount so allocated.” Therefore when the National Assembly enacted section 6 subsection (1) of Act No. 1 of 1982, which created the State Joint Local Government Account Allocation Committee, it must have done so in the exercise of either one or all of these enabling powers.

Accordingly, I hold that the National Assembly was competent to make the enactment. The establishment and composition of the Joint Local Government Allocation Committee are intra vires the National Assembly and therefore valid.

It has been contended, in the alternative, that the provisions of item A paragraph 1(a)(iv) conflict with the provisions of section 149(7) of the Constitution because the latter vests in the State House of Assembly the power to distribute the revenue due to Local Government Councils while the former gives the same power to the National Assembly. It was then submitted, somewhat conversely to the provisions of section 4(5) of the Constitution, that since the provisions of item A paragraph 1 can only come into operation “subject to any other provisions of the Constitution” then, any law enacted under section 149(7) by a House of Assembly will prevail over similar enactment made by the National Assembly under item A paragraph 1(a)(iv). Hence, it was argued, that the provisions of Bendel State Local Government Law, 1980 (No. 1 of 1980) with regard to the composition and establishment of the Joint Local Government Allocation committee prevail over those of section 6 of Act No. 1 of 1982.

This contention had been advanced as if section 6 of Act No. 1 of 1982 was made by virtue of item A paragraph 1. But there is no indication anywhere in Act No. 1 of 1982 that in enacting section 6 thereof the National Assembly was exercising its powers under item A paragraph 1(a)(iv) alone or at all. Nor can it be so inferred because, as already mentioned, apart from the provisions of item A paragraph 1(a)(iv) the National Assembly is empowered under section 149 subsection (6) of the Constitution to prescribe the “terms and manner” for the payment by State Government of its contribution the revenue of State Local Government Councils. Accordingly, the powers of the National Assembly under section 149(6) and those of a State House of Assembly under section 149(6) and those of a State House of Assembly under section 149(7) are concurrent. Therefore any laws made under the two subsections of section 149 are subject to the provisions of section 4 subsections (5) of the Constitution, which reads:

“If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.”

This being so, if any of the provisions of Bendel State Local Government Law, 1980 is inconsistent with the provisions of Act No. 1 of 1982, the provisions of the Act will prevail and the provisions of the Law will to that extent be void.

In the event, I hold that section 6 subsection (1) of Act No. 1 of 1982 is constitutional and valid since the National Assembly has the power to make the enactment by virtue of the provisions of section 149 subsections (4) and (6) of the Constitution.

There remains to be considered the third head of the plaintiff’s claim. This can be disposed of briefly. It is common ground, following the plaintiff’s admission of paragraphs 9-13 of the first defendants’ statement of defence, that a body called the ‘Federation Account allocation Committee” has been set up for the purpose of distributing the amount standing to the credit of the Federation Account. Both the Federal Government and the Bendel State Government are represented on the committee. Each month the Committee meets in order to consider the allocation of the Federation Account and to confirm and approve the statement of the Federation Account as submitted by the Central Bank of Nigeria. Although officials of the Central Bank are invited to the monthly meeting there is evidence that they do not always attend. If there is any query to be made at the meeting concerning the statement no answer may be forthcoming since the officials of the Central Bank are not always present. The position of the Federal Government in maintaining the Federation Account is, by virtue of section 149(1) of the Constitution, that of a trustee for the State Governments and the Local Government Councils of the States. It is settled that it is the duty of a trustee to keep a proper account of the trust he administers. And the beneficiary has a right to call upon the trustee for accurate information as to the state of the trust. Consequently, it is imperative for the Federal Government to render accurate and regular account to the beneficiaries of all moneys paid into the Federation Account when requested to do so. For these reasons I am of the view that the plaintiff’s claim in this respect is tenable and I will allow it.

In the result the plaintiff’s action succeeds in part and I hereby grant the following declarations:

(1) That subsections (1) and (2) of section 2 of the Allocation of Revenue (Federation Account etc) Act, 1981 (No. 1 of 1982) are insofar as each of the said subsections makes provision for a fund to be administered by the Federal Government unconstitutional and

(2) That the Government of Bendel State is entitled to have on request and within a reasonable time a true and correct statement of all moneys paid by the Federal Government into the Federation Account kept with the Central Bank of Nigeria pursuant to section 149 of the Constitution.

There will be no order as to costs.

Sowemimo, J.S.C. This claim is brought in exercise of the original jurisdiction of this Court, under section 212(1) of the Constitution of the Federal Republic of Nigeria 1979, which shall hereinafter be referred to as the Constitution.

The plaintiff originally sued the first defendant, the Attorney–General of the Federation. Before the proceedings commenced, but definitely after the original parties had filled their Statement of Claim and defence, the court ordered that the Attorney–General of the remaining 18 States be joined as co-defendants. Further consequential orders were made for service on them of the pleadings already filed, unamended by the original parties, and, they the co-defendants, were to file statements of defence, if so advised. These orders were complied with and the proceedings commenced on the date fixed for hearing.

The lead judgment by my learned brother, Uwais, J.S.C., a preview of which I have had the privilege of reading, has dealt fully with the arguments addressed to the court. I agree with the conclusions in the judgment.

I wish however, to draw attention to certain aspects of this claim in amplification of the judgment and my opinion on the new aspects.

May I refer to the relevant paragraphs in the pleadings of plaintiff and first defendant, which in my opinion set out the triable issues for decision. I refer to the following paragraphs of the Statement of Claim:

“3. The National Assembly has enacted the allocation of Revenue (Federation Account etc) Act 1981 which by section 9(2) thereof was decreed; to have come into force on the 22nd January, 1982. The said enactment is hereinafter referred to as the Revenue Allocation Act. . .

5. The particulars of the portions of sections 2 and 6 of the Revenue Allocation Act which the plaintiff says are unconstitutional and void are as follows:

(a) Section 2(1) insofar as it makes provision for a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria.

(b) Section 2(1) insofar as it makes provision for a fund to be administered by the Federal Government for the development of mineral producing areas in Nigeria.

(c) Insofar as it provides for the establishment of a Joint Local Government Account Allocation Committee for each State, section 6(1) of the Revenue Allocation Act.

6. Since the present Administration took office in October, 1979, it had never submitted to the plaintiff any statement of moneys paid by the Federal Government in the Federation Account kept pursuant “to section 149 of the Constitution of the Federal Republic of Nigeria.”

Whereupon the plaintiff claims against the defendant—

“(1) A declaration that subsections (1) and (2) of section 2 of the Allocation of Revenue (Federation Account etc), Act 1981 is unconstitutional and void insofar as each of the said subsection makes provision for a fund to be administered by the Federal Government.

(2) A declaration that subsection (1) of section 6 of the aforesaid Act is unconstitutional and void insofar as it enacts the establishment of a body to be known as the State Joint Local Government Account Allocation Committee.

(3) A declaration that Government of Bendel State is entitled to have from time to time a true and correct statement of all moneys paid into the Federation Account kept pursuant to section 149 of the Constitution.”

The first defendant filed a defence, and I consider the following paragraphs of the statement of defence relevant:—

“1. The defendant admits paragraphs 1, 2 and 3 of the Statement of Claim; . . .

4. In answer to paragraph 5 of the Statement of Claim, the defendant denies that the portions of the Revenue Allocation Act referred to therein or any other portions of the said Act are unconstitutional or void.

5. In further answer to paragraph 5 of the Statement of Claim, the defendant avers that the provisions of the portions of the sections of the “Revenue Allocation Act complained of are within the ambit of the discretion conferred on the National Assembly by section 149 of the Constitution of the Federal Republic of Nigeria 1979 particularly in subsections 2, 3, 4 and 6 of that section and also within the legislative competence of that Assembly.

6. The defendant denies paragraph 6 of the Statement of Claim.

7. In further answer to the said paragraph 6, the defendant avers that immediately after the passing of the Allocation of Revenue (Federation Account etc), Act 1981 a Federation Account was opened with the Central Bank of Nigeria into which all revenues (with the exception of those listed under section 149(1) of the Constitution) are paid.

8. That amounts standing to the credit of this account are shared on a monthly basis in accordance with the formular, provided by the Allocation of Revenue (Federation Account etc), Act 1981 (No. 1 of 1982).”

At the hearing the plaintiff called the Deputy Accountant–General of Bendel State, who tendered a document exhibit A which was the minutes of the “Federation Account Allocation Committee” and this relates to the ‘Preliminary Meeting of Accountant–General of the Federation with the Accountants–General of the States to consider the Statutory Revenue Allocation for November, 1982 held on 13th December, 1982.’

It was established in evidence that the schedule of distribution is as follows:

(a) The Federal Government;

(b) The State Governments;

(c) The mineral producing States;

(d) A fund to be administered by the Federal Government for the ameloration of ecological problems in any part of Nigeria;

(e) A fund to be administered by the Federal Government under direction by the President for unspecified development in mineral producing areas;

(f) States Local Government Councils.

By virtue of section 74(1) of the Constitution, revenue or money received under item (a) will fall to be paid into and form part of the Consolidated Revenue Fund of the Federation. Further and by virtue of section 75, any expenditure under that fund shall be subject to the authorisation as provided thereunder. By virtue of section 112 all revenue or moneys received under item (b) and where applicable item (c) will fall to be paid into and form part of the Consolidated Revenue of each particular state. Authorisation for expenditure under the fund is governed by section 113.

May I also refer to section 8 of the Allocation of Revenue (Federation Account etc), Act 1981 (No. 1 of 1982) which reads:

“8

(1) Not later than ninety days following the end of each financial year, the Accountant–General of the Federation shall report to House of the National Assembly on the payments made to each State under this Act and stating whether or not the payments were made under this Act;

(2) Not later than ninety days following the end of each financial year, the Accountant–General of each State shall report to the House of Assembly on the payments made to each Local Government Council in the State and stating whether or not the payments made were correctly made under this Act and under the relevant law of the State governing such payments.”

It must be pointed out that no provision is made under the Act, for report on the question of the two funds to be administered by the Federal Government under section 2.

By the combined effect of the above constitutional provisions as well as the quoted portions of the Allocation of Revenue Act 1981, can it be said that the following portions of section 2(1)(2) insofar as it made provisions thus:

“(1) a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria;

(2) a fund to be administered by the Federal Government for the development of mineral producing areas in Nigeria.”

constitute distribution of such shares among all or any of the Constituent States of the Federation as provided by section 149(3) of the Constitution? The answer is in the negative. Therefore with regard to Claim 1, the portions of section 2(1) of the Allocation of Revenue (Federation Account etc), Act 1981 which reads:

“to be paid into a fund to be administered by the Federal Government” and under subsection (2) which reads:

“shall be paid by the Government of the Federation into a fund to be administered by the Federal Government”,

violate the provisions of section 149(3) of the Constitution and such portions as quoted are unconstitutional and void.

I am not unaware of the powers conferred on the National Assembly to legislate under Part II item 1 (a) of the Second Schedule–Concurrent Legislative List–on the Allocation of Revenue etc. The exercise of such powers is made “subject to the provisions of this Constitution” that is section 149(3) thereto. In the view I therefore take, I have come to the same conclusion as my learned brother Uwais, J.S.C., that the portions of the provision complained of in claim 1, are unconstitutional and void.

Learned Counsel for the plaintiff has addressed us extensively on sections 74, 75 and 77 of the Constitution with respect to the expenditure for ecological problems, and in respect of the development in mineral producing areas under items 37 and 67 on the Exclusive Legislative List in Part I of the Second Schedule of the Legislative Powers. My learned brother Uwais, J.S.C. has dealt with these arguments and I agree and adopt his opinion. In further reinforcement may I draw attention to the definition of Ecology in Webster Twentieth Century Dictionary 2nd Edition Page 574 which reads:—

“1. The branch of biology that deals with the relations between living organisms and their environment;

2. In Sociology, the relationship between the distribution of human groups, with reference to material resources.”

Whenever ecological problems occur, expenditure on them cannot be estimated as they are unforeseeable within the context of any of the above definitions. Therefore, no sums of money can be estimated under an appropriate bill. Incidentally, such problems do not come expressly under any of the matters under States competency under the Concurrent Legislative List. In order therefore, for the Federal Government to provide fund whenever there are ecological problems in any part of Nigeria it will have to have recourse to expenditure either indirectly under section 75–under expenditure under an Appropriate Act or directly under section 77–Contingencies Fund under the Constitution.

In the case of fund for development in mineral producing areas to be administered by the Federal Government reference had been made during arguments to items 37 and 67 under the Exclusive Legislative List. Such a fund, it was submitted, will have to be appropriated, and dealt with under section 75 of the Constitution. Whilst the plaintiff’s arguments are attractive, they are not relevant for consideration in this case.

For the above reasons, the two funds cannot come out of the distributable shares of the States under section 149 (2) and (3) of the Constitution. Claim 1 therefore succeeds.

Claim 2, seeks a declaration that section 6 (1) of Allocation of Revenue (Federation Account etc.) Act 1981, insofar as it established a body to be known as the State Joint Local Government Account Allocation Committee is unconstitutional and void. I agree with my learned brother Uwais, J.S.C., that this provision is valid having regard to the combined effect of Section 149 subsections 4,5 and 6 especially subsection 5. Learned Counsel for the plaintiff has questioned the competence of the National Assembly that, after establishing the “State Joint Local Government Allocation Committee” it proceeded further to establish the membership which comprises of five functionaries of the State and one of the Federal Government. Such a committee, he contended, is unconstitutional because the National Assembly is incompetent to appoint State functionaries. For reasons already stated in the opinion of my learned brother Uwais, J.S.C., and with which I agree, this contention cannot be sustained. See subsection (5) of section 149 of the Constitution. Claim 2 therefore fails.

Claim 3, which is a declaration that each State is entitled to be given a statement of the Federal Account kept with the Central Bank of Nigeria is not seriously contested. After all, the account is being kept in trust for all the beneficiaries viz., the Federal Government, the States, and the Local Government Councils and I do not see any justifiable objection to the claim. It will therefore be granted. In view of the fact that the plaintiff has succeeded only in part and failed in another, there will be no award of costs.

Irikefe, J.S.C. I was privileged to read in the draft the first judgment in this matter just read by my learned brother, Uwais, J.S.C., and I agree that the plaintiff’s prayers in claims 1 and 3 be granted and that in claim 2 be refused. I was also privileged to read the concurring judgments of my learned brethren Bello, Idigbe, Obaseki and Eso.

As regards claim three it cannot be disputed that the Federal Government as the trustee of funds accruing to the Federation Account in virtue of section 149(1) of the Constitution (1979) has a duty in law to furnish the States, which are beneficiaries of the proceeds of the said Federation Account, an account from time to time, upon request, of funds available under the stated account.

My brief comment on the provisions of section 149 of the Constitution is intended merely to lend further emphasis on the points already made in the divers judgments of my learned brethren.

Insofar as the prayers contained in the plaintiff’s first claim are concerned, I proposed to set out only those provisions to section 149 of the Constitution that are germane to the points I wish to make.

Section 149(2) reads:

“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 149(3) reads:

“Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.”

Section 149(4) reads:

“The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the States for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.”

It seems to me plain beyond argument that, the legislative competence of the National Assembly is limited to a distribution or sharing in whatever proportion by one fell swoop of the funds accruing to the Federation Account. This, the National Assembly purported to do under section 1(1) of the Act No. 1 of 1982. By no stretch of the imagination can the above quoted subsections of section 149 be construed as vesting in the National Assembly powers to enable the Federal Government hold back a miniscule proportion of funds comprised in the percentage already distributed to a State.

The proportions in dispute here are:

(a) 1 percent of 35 percent to be paid into a fund to be administered by the Federal Government for amelioration of ecological problems in any part of Nigeria, and

(b) 1.5 percent of 35 percent to be paid by the Government of the Federation into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be made in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from and around the particular areas.

Under section 4 of the 1979 Constitution the National Assembly enjoys the sole right to legislate on matters spelt out in the Exclusive List. It also shares the right to legislate on matters in the Concurrent List with the Houses of Assembly of the States.

Item 37 on the Concurrent List reads:—

“Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.”

Ecological problems such as soil erosion or flooding, though not accommodated within item 37 may arise as the result of activities related to the exploration for oil or the exploitation of same.

Laudable therefore, as the intention to appropriate funds for the above contingencies may be, this cannot justify the exercise by the National Assembly of powers it does not have under the Constitution.

Bello, J.S.C. I had a preview of the judgment delivered by my learned brother, Uwais, J.S.C. I agree that the prayers in the first and third items of the plaintiff’s claims should be granted but the prayer in the second item be refused. I have had also the opportunity of reading the judgments of my learned brothers, Sowemimo, Idigbe and Eso, JJ.S.C. In the four judgments, my learned brothers have ably and adequately covered to my satisfaction all the issues canvassed in this suit. For the avoidance of repetition, I shall only add a few words on the issue of the unconstitutionality of the impugned limbs of sections 2(1) and 2(2) of the Allocation of Revenue (Federation Account etc.) Act, 1981–hereinafter referred to as “the Act.”

By virtue of the mandatory provisions of section 149(1) of the Constitution, the Federation is obliged to maintain a special account to be called “the Federation Account” into which all revenues except the proceeds from some personal income tax specified therein, collected by the Federal Government shall be paid. Section 149(2) of the Constitution makes the Federal Government, the State Governments and the Local Governments the sole beneficiaries of the Federation Account and empowers the National Assembly to distribute the amount standing to the credit of the Account among the said beneficiaries on such terms and in such manner as the National Assembly may prescribe. The subsection reads:

“149.

(2) 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.”

In the discharge of the power under the above subsection, the National Assembly enacted section 1 of the Act wherein the amount standing to the credit of the Federation Account was shared out among the beneficiaries as follows:

 

 

(1)

To the Federal Government

55 percent

(2)

To State Governments

35 percent

(3)

To Local Governments

10 percent

It follows from the foregoing that 35 percent of the Federation Account stands to the credit of all the States in the Federation and the States are constitutionally entitled to have the entire amount of the credit distributed among themselves in accordance with the provisions of section 149(2) of the Constitution, which provides:

“149.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.”

In exercise of the power under the aforesaid section 149(3) the National Assembly further shared out the said 35 percent under section 2 of the Act as follows:

(1) 30.5 percent thereof to all the States (section 2(1)).

(2) 2 percent to the States concerned in direct proportion to the value of minerals extracted from the territory of the State (section 2(2)).

(3) 1 percent to be paid into a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria (section 2 (1)).

(4) 1.5 percent to be paid into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be managed in accordance with such directions, as may be issued from time to time by the President having due regard to the value of minerals extracted from and around the particular areas (section 2(2)).

In parenthesis, it may be noted that the two funds in items (3) and (4) above are the subject matter of the suit.

I think it is pertinent to point out that the National Assembly proceeded further to prescribe the formula under section 2(3) of the Act for the distribution of the 30.5 percent in item (1) above in these terms:

“2–

(3) The 30.5 percent standing to the credit of all the States in the Federation Account as stated in subsection (1) above shall be distributed by the Federation among the States using the following factors:

 

     

 

(a)

Minimum responsibility of Government, that is equality of States

40 percent

 

(b)

Population

40%

 

(c)

Social Development Factor as represented by Primary School Enrolment

15%

 

(d)

Internal Revenue Effort as represented by the ratio of total internal revenue to total recurrent expenditure

5%

and of the 15 percent allocated pursuant to paragraph (c) above, 11.25 percent thereof shall be attributable to direct primary school enrolment, that is to say the number of children of primary school age who are actually in school while the balance of 3.75 percent shall be attributable to inverse enrolment, that is to say the number of children of primary school age who are not in school.

(4) Reference in section 1 of this Act and in this section to State Government or States include references to the Federal Capital Territory.”

I have set out in full the formula and factors prescribed by the National Assembly for the distribution of the 35 percent of the Federation Account standing to the credit of the States, which amount section 149(3) of the Constitution enjoined the National Assembly to distribute among States, in order to show that, with the exception of the disputed 1 percent fund for the amelioration of ecological problems and the disputed 1.5 percent for the development of the mineral producing areas, once the essential data are available the determination of the share from the amount due to each State and the said share the State is entitled to receive is a matter of simple arithmetical calculation. But this is not so in respect of the funds in dispute. The National Assembly has not prescribed any formula or factor to guide the Federal Government as to how to administer or expend the funds. It has not prescribed any basis for the distribution of the funds to the States that the National Assembly reserved the funds for their benefit. The National Assembly simply entrusted both funds to the Federal Government to be administered or expended by the Federal Government at its sole and absolute discretion for the purposes stated in sections 2(1) and 2(2) of the Act.

In my opinion, the provisions of section 149(3) of the Constitution are imperative and mandatory. The subsection clearly enjoins the National Assembly to distribute all the amount standing to the credit among the States. It does not empower the National Assembly to set aside any portion of the amount thereof as a trust to be administered or expended by the Federal Government for the benefit of the beneficiary States at the absolute discretion of the Federal Government. For these reasons I hold the trust in respect of both funds to be inconsistent with the provisions of section 149(3) of the Constitution and void as per section 1 (3) of the Constitution.

I would also amplify the view that the dicta in the Attorney–General of the Ogun State and others v. The Attorney–General of the Federation and others (1982) 3 N.C.L.R. 166, to wit, that the National Assembly cannot unilaterally confer power or impose duty on a State functionary, is a correct statement of the principle of constitutional law in a Federation. This principle of law has found expression in our Constitution in sections 4 and 5 thereof. Section 4 divided the legislative powers of Nigeria between the Federation and the States.

It vested the legislative powers of the Federation in the National Assembly and the States legislative powers in the States Houses of Assembly. Section 5 also divided the executive powers of Nigeria between the Federal and States executives. It vested the Federal executive powers including the execution and maintenance of Federal Laws in the President and Federal functionaries. It also vested a State executive powers including the execution and maintenance of the laws of the State in the Governor of the State and the State functionaries.

It may be observed that although the framers of our Constitution enshrined therein the principle of division of constitutional powers between the Federation and the component States, they realised that absolute division of such powers would not achieve the purpose of the Constitution which, as was firmly and solemnly resolved in its preamble, is to promote the good government and welfare of all persons in our country. It seems to me the framers appreciated that mutual co-operation, reciprocity and inter-dependence between the Federal and State Governments are essential in the promotion of the laudable purpose of the Constitution. On this account the provisions of section 5 of the Constitution, which assigned the execution and maintenance of Federal Laws to Federal functionaries and the States laws to States functionaries, are qualified by the phrase “subject to the provisions of this Constitution” in subsection 1 thereof.

It is obvious from the fore-going that where there are express or implied provisions in the Constitution enabling the National Assembly or the States Houses of Assembly to confer function or impose duty on States or Federal functionaries respectively, then the general principle of constitutional law stated in the dicta under consideration would have to give way to the express or implied provisions of the Constitution. In his judgment my learned brother, Uwais J.S.C., has pinpointed some of the relevant provisions of the Constitution which underscore some of the exceptions to the general rule stated in the dicta.

Idigbe, J.S.C. I have had the advantage of reading the judgment of my learned brother, Uwais J.S.C. and I entirely agree that the prayers in the first and third arms of the plaintiff’s claims to be granted but that the prayer in the second arm thereof be refused. But as the principal issues in this case are of constitutional importance and considerable general interest, I propose to add some observations of my own.

Under subsection (1) of section 149 of the 1979 Constitution of the Federal Republic of Nigeria (hereinafter referred to as “the 1979 Constitution”), the Federation is required to maintain a distributable pool account to be known as “the Federation Account”, and any amount standing to the credit of this account shall be distributed among three “beneficiaries” i.e. (1) the Federal Government, (2) the States Governments and (3) the Local Government Councils in each State (section 149(2) of the 1979 Constitution refers). Further, any amount standing to the credit of the States in the said distributable pool account shall again be distributed among the States (subsection (3) of section 149 refers). Again, any amount standing to the credit of Local Government Councils as a result of the distribution pursuant to subsection (2) aforesaid shall be allocated, for the benefit of these Local Government Councils, to the States (subsection (4) of section 149 refers); each of which is required under the said Constitution (1) to maintain a special account to be known as “State Joint Local Government Account” into which shall be paid all allocations, from the Federation Account i.e. the distributable pool account, to the Local Government Councils of the State (subsection (5) of section 149 refers), and (b) to pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue as may be “prescribed” by the National Assembly (subsection (6) of section 149 refers).

It is to be noted, however, that all distributions and allocations which are required to be made under subsections (2), (3), (4) and (6) of section 149 aforesaid must be made “on such terms and in such manner as may be prescribed by the National Assembly.” Under the 1979 Constitution, the term “prescribed” means, prescribed by or under the said Constitution or “any other law” (section 277 of the said Constitution refers). Unless, therefore, the Constitution has specified the “terms and manner” of distributions or allocations to be made under section 149 aforesaid, there is no doubt that the National Assembly has been left with the discretion of specifying the terms and manner of distributions and allocations under subsection 149 begins with the phrase, “subject to the provisions of this Constitution”, there is no question that in specifying the “terms and manner” of the allocations and distributions aforesaid, the National Assembly must act in accordance with the provisions of the 1979 Constitution; put in another way, the National Assembly must not contravene any of the express provisions of the said Constitution (all the provisions of section 149 inclusive) in the discharge of its functions under the subsections aforesaid. If any of these provisions is contravened in the prescription of the terms and manner of distributions and/or allocations of the Federation Account, then such prescription will, to the extent of such contravention, be invalid. (See also Attorney–General of Bendel State v. Attorney–General of the Federation and 22 others (1982) 3 N.C.L.R. 1 at 40/6-7 per Fatai-Williams C.J.N.; at 51/6 per Bello J.S.C. at 66/1-6 for my personal observations).

On this foregoing principle and upon a close look at the relevant subsections of section 49 aforesaid, it appears to me quite clear that, so far as concerns “State Monies” in the Federation Account (i.e. monies already shared out as due to the States from that Account), there is to be only one occasion of sharing–out by the National Assembly and this is under subsection (3) of section 149. The Constitution does not, in my view, contemplate any further “sharing-out” of States’ monies by the National Assembly; it does, however, contemplate that in respect of the sharing of the said monies by the States themselves to “beneficiaries” within their several areas of jurisdiction (e.g. sharing out to Local Government Councils under subsection (6) of section 149) these States will have to discharge this function in accordance with the directions of the National Assembly as to “the terms and manner” therefor.

Accordingly, in regard to the case in hand, the National Assembly having once shared-out 35 percent of the monies in the Federation Account, as “States’ Monies”, to the States as prescribed under subsection (3) aforesaid (see section 1 of the Revenue Allocation Act 1981, Order 1 of 1982–hereafter referred to simply as “the 1981 Act”), I take the view that while that august body has the power to prescribe as it has done in the 1981 Act, that 30.5 percent of the States’ Monies be allocated directly to all the States, and that 2 percent thereof be paid directly on the basis of derivation of minerals to the States concerned in “proportion to the value of minerals extracted from the territory of “such States (subsections (1) and (2) of section 2 of the 1981 Act refer), it (i.e. the National Assembly) has no power under the 1979 Constitution to proceed–as it were–to further “sharing-out” of States’ Monies as, indeed, it has done in the said Act by providing as follows:

(i) that 1% of the States’ Monies “be paid into a fund to be administered by the Federal Government for amelioration of ecological problems. . .” (subsection (1) of sections 2 of the 1981 Act refers);

(ii) that 1.5 percent thereof “shall be paid into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria which fund shall be managed in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from and around the particular area” (subsection (2) of section 2 of the 1981 Act refers).

What the National Assembly has done in respect of the said 1 percent and 1.5 percent of States’ Monies in the provisions set out above, in fact, amounts to a further “sharing-out” by that same body of States’ Monies in the Federation Account (i.e. a “sharing-out” subsequent to the first exercise under subsection (3) of section 149 aforesaid as evidenced in section 1 of the 1981 Act) to the Federal Government, albeit, for “beneficial use” of the States. The words “administered” and “managed” in subsections (1) and (2) of section 2 of the said Act in the context in which they are used (see the passages in quotations above) mean “shared-out” and it is well known that the expressions “distribute” and “manage” are synonyms of the expression “administer.”

To my mind, the question here is not whether it is within the competence of the National Assembly to make “monetary reservations” from States’ Monies in the Federation Account for eventual or ultimate application by (not only for) the States themselves to specific or special purposes set out in any direction of the National Assembly under the general umbrella of “terms and manner” of distribution of the same (as envisaged, by subsection (3) of section 149 aforesaid) but whether, as expressed in the relevant subsections aforesaid (i.e. (1) and (2) of section 2 of the 1981 Act), these “monetary reservations” are valid bearing in mind those provisions of the relevant subsections of section 149 aforesaid (particularly, those provisions of subsection (3) which require distribution of “States’ Monies in the Federation Account to be “among the States” and no one else)? I have no doubt that, as expressed in section 2 of the 1981 Act and so far as concerns the “monetary reservations” in respect of 1 percent and 1.5 percent aforesaid the provisions in respect thereof are, indeed, constitutional and invalid. I would therefore, grant the declaration asked for in the first arm of the plaintiff’s claims.

Section 6 of the 1981 Act:

This section sets up a State Joint Local Governments Account Allocation Committee. The plaintiff contends that (1) as it is not within the competence of the National Assembly to impose a duty on a State functionary and (2) as the establishment of a Committee under this section (i.e. section 6 aforesaid) would conflict with the provisions of a State Local Governments Law relating to the administration of the funds of Local Government Councils in its area of jurisdiction made pursuant to the provisions of subsection (7) of section 149 of the 1979 Constitution (also, hereafter referred to as “the current Constitution”), the law made by a State Government in this regard must override any law made by the National Assembly pursuant to the provisions of sub-paragraph (iv) of paragraph (a) of section in item A of the Concurrent Legislative List in Part II of the Schedule to the 1979 Constitution (hereafter for short referred to simply as “paragraph (a) (iv) of section 1 in item A”). We were then referred by learned Senior Advocate on behalf of the plaintiff to Law No. 1 of 1980 Bendel State i.e. Local Government Law of Bendel State 1980. In support of the first arm of the above contention, learned Senior Advocate on behalf of the plaintiff prayed in aid observations of this Court in Attorney–General for Ogun State and others v. Attorney–General for the Federation (1982) 3 N.C.L.R. 166 at 179/9 per Fatai-Williams C.J.N.; at 189/4-6 per Udoma J.S.C.; at 202/2-7 per Eso J.S.C.; and my observations at 195/2-6.

So far as concerns the latter arm of the above submission, it is my view that since section 6 of the 1981 Act appears to me to derive its force, not from paragraph (iv)(a) of section 1 in item A but, from subsections (4) and (6) of section 149 of the current Constitution. I need not go into the exercise relative to the validity of a law of the National Assembly made pursuant to the provisions of paragraph (iv)(a) of section 1 in item A vis-a-vis a State Local Government Law made pursuant to the provisions of subsection (7) of section 149 aforesaid, and I need only consider the validity of section 6 of the 1981 Act from the stand point of section 149 of the current Constitution. The Constitution has established in each State a “State Joint Local Government Account” (subsection (5) of section 149 refers) and has invested the National Assembly with power, (a) to allocate, on such terms and in such manner as that Assembly may prescribe, to the States for the benefit of Local Government Councils in their respective areas of jurisdiction the amount standing in the Federation Account to the credit of the said Local Government Councils; (b) to enjoin that the amount of monies so allocated be paid into that creature of the Constitution which is the State Joint Local Government Account and which, under the Constitution, must exist in each State; (c) to enjoin that each State must pay into the said State Joint Local Government Account such proportion, of the total revenue of such state, (in effect, distribution of monies already in State “hands”) as that Assembly may order to be paid (subsections (4), (5) and (6) of section 149 aforesaid refer). Subsection (7) of section 149 aforesaid requires that the amount standing to the credit of Local Government Councils of each State in the State Joint Local Government Account of each State shall be distributed among the Local Government Councils on such terms and in such manner as may be prescribed by the State House of Assembly.

The State Joint Local Government Account, although existing in a State is, therefore, in my view, an Account in which both the Federal Government and State Governments have joint interests; the former has interest in satisfying itself (and thus preventing any possible infraction of the current Constitution in this regard) that allocations made under subsection (6) of section 149 aforesaid are promptly and properly channelled into the State Joint Local Government Account, the latter as well as the former each has interest in satisfying itself (and again, thus preventing any possible infraction of the Constitution aforesaid) that distribution of monies in the said Account is made as prescribed by the State House of Assembly and, in any case, not contrary to any of the relevant provisions of the current Constitution. The 1981 Act, ordains in section 4 that each State shall “in each quarter of the financial year” pay to the State Joint Local Government Account “a sum representing 10% of the total revenue for that quarter of the State concerned.”

As a result of the Joint interests of the Government of the Federation and the State Governments and, further, in keeping with the intendment of the current Constitution, the 1981 Act, therefore, establishes “the Federation Account Allocation Committee” and the State Joint Local Government Account Allocation Committee (sections 5 and 6 of the 1981 Act refer). These committees are, so it appears to me on a proper appraisal of the entire 1981 Act against the provisions of the relevant subsections of section 149 of the current Constitution, designed in each case to ensure that the provisions of both the 1981 Act and section 149 aforesaid–so far as concerns the allocation by the National Assembly of revenues to the States and Local Government Councils and also the distribution thereof by the States to Local Government Council within their respective areas of jurisdiction–are carried out in the spirit and intendment of both the Revenue Allocation Act 1981 No. 1 of 1982 (i.e. the 1981 Act) and the 1979 Constitution.

The pith of the first arm of the submission and contention of learned Senior Advocate on behalf of the plaintiff is that as it is not within the competence of the National Assembly to impose a duty on State government functionaries, section 6(1) of the 1981 Act, which establishes a “State Joint Local Government Account Committee to which is assigned as members thereof a number of State governmental functionaries charged with specific duties in subsection (3) thereof, must be invalid as it is, in the view of learned Counsel unconstitutional. Reliance for the above submission of learned Counsel was placed in the observations of this Court in Attorney–General for Ogun State and others v. Attorney–General for the Federation (supra). The problem arising from the above submission is one which is unknown in jurisdictions with a unitary form of government and a supreme legislature. It arises only in a Federal government such as ours, when powers legislative and executive power within the Federation are shared principally among two tiers of government; the National or Federal Government and the State Governments within the Federation. In a Federal set up it is necessary that each of the two tiers of government is reasonably “autonomous i.e. each has separate existence from and remains independent of control by the other; that notwithstanding, certain aspects of government machinery such as the courts of Justice and the police (to mention a few) may with advantage be used in common between the States of the Federation; and the Constitutions of Federal systems of government often so provide. Subject however, to these exceptions each government of the Federation must be able to exercise its own functions and discharge the duties conferred on it by the Constitution free from directions and/or control by any other government of the Federation. In keeping with the above principle it has been observed that:

“The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the Supremacy of the Federal power in all matters entrusted to the nation by the Federal Constitution. In interpreting the Constitution it must never be forgotten that the nation is made up of States to which are entrusted powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. . .” (Hammer v. Dagenhart (1918) 247 U.S. at 275-276 per Day J. (Italics by me).

In furtherance of the above principle it is settled law that in a Federal system of government the National or Federal legislature ought not normally to pass a law which interferes with the machinery (functionaries inclusive) of State Government such as by imposition of a duty on a State authority or functionary. The converse situation hardly ever arises because in most Federal Government Constitutions it is provided that where the provision of the law of a State Government conflicts with that of the National or Federal Government the former becomes, to the extent of the conflict, invalid. The observations of this Court in the case of Attorney–General for Ogun State and others v. Attorney–General for the Federation (supra) which learned Senior Advocate on behalf of the plaintiff has prayed in aid of the first arm of his submission earlier set out in this judgment is based on the above principle of law. In my respectful view, the observations of this Court in Attorney–General for Ogun v. Attorney–General for the Federation (supra) represents a major principle of law within which the two tiers of Government in a Federal system of government may adequately and lawfully perform their functions; and I am still of the same opinion.

The above principle of law (to which hereafter, for convenience, I will refer to as “the Rule of Separation of Powers”) may, however, be displaced by “enabling constitutional provisions” which admit of a contrary situation or intention. In keeping with the above principle of law, the 1963 Constitution of the Federation–Act No. 20 of 1963 provides in section 99 as follows:

“99

(i) The President may, with the consent of the Governor of a Region, entrust either conditionally or unconditionally to the Governor or to any officer or authority of that Region functions in relation to any matter to which the executive authority of the Federation extends falling to be performed within that Region. Provided. . .” (Italics mine).

But the provisions of subsection 2 of the said section 99 are noteworthy; they compare favourably with, and constitute a basis for, the exception to which I have already referred. This subsection reads:

“99.

(2) An Act of Parliament may include provision conferring powers or imposing duties, or authorising the conferring of powers or the imposition of duties, upon the conferring of powers or the imposition of duties, upon the Governor of a Region or any officer or authority of a Region provided. . .” (Italics mine).

Section 100(1) and (2) of the said 1963 Constitution contain the like provisions which may bring about the reverse situation in regard to a law of a State vis-a-vis that of the National or Federal Government. It is, of course, true that the 1979 Constitution does not contain any section whose provisions are similar to the provisions of sections 99(1)(ii), 100(1) and 100(2) of the 1963 Constitution; yet it is my view that notwithstanding the omission there is necessary implication, which stems from the above principle of the rule of Separation of Powers to which reference has been made in the two foregoing paragraphs that the principle of law sought to be established in the above sections of the 1963 Constitution ought to be observed in the interpretation of the 1979 Constitution except where its observance is, by the 1979 Constitution, expressly excluded or where, as here (i.e. in section 149 under consideration), its exclusion is inferred. And in this connection the observations of Day, J. in the majority judgment of the United States Supreme Court in Hammer v. Dagenhart (supra) repays quotation:

“. . . (The) court has no more important function than that which devolves on it the obligation to preserve inviolate the constitutional limitations upon the exercise of authority Federal and State to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Constitution” [see 247 U.S. 251 at 2767. (Italics mine)].

As regards the matter in hand–i.e. the issue of the validity of section 6 of the 1981 Act,–it is my view that the basis for exception to the rule of Separation of Powers (discussed by me in the foregoing paragraphs) has been laid down in the Constitution with which we are concerned (i.e. the 1979 Constitution); they are to be found in the relevant subsections to section 149 aforesaid; subsections (4) and (6) thereof invest the National Assembly with amplitude of power in connection with (a) the allocation of revenue from the Federation Account to the Local Government Councils through the States [149(4) refers] and (b) the enjoinment for payment by the States to such Local Government Councils of such proportion, of the States’ revenue already in the “hands” of the States (i.e. “in their possession”), as the National Assembly may direct [149(6) refers]. This amplitude of power is, in my view, to be found in the expression “on such terms” and “in such manner” which pervades the entire authority vested in the National or Federal Legislature (i.e. the National Assembly) in section 149). Prima-facie each State government in any “Federal set-up” should control its own monies without interference or directions from any other government unless there is–as earlier stated–anything in the Constitution setting up the Federation which portrays a contrary intention. While considering the question whether the provisions of the Banking Act (Australia) 1945, which by section 48 thereof seeks to limit the powers of States in Australia in the operation of banking business “except with the consent of Commonwealth Treasurer.” Dixon J. (as he then was) observed:

“. . . State and Federal Governments are separate bodies politic and prima facie each controls its own moneys. To enable Parliament of the Commonwealth to deny to the States the use of any bank but the Central Bank of the Commonwealth and thus to guide the collection and disbursements of the States into and through the account of that bank, there must be found in the Constitution a definite legislative power of sufficient amplitude” [see Melbourne Corporation v. The Commonwealth (1946-1947) 74 C.L.R. 31 per Dixon J. (as he then was) at 74. (Italics mine)].

In the United States of America, the Federal Government has, pursuant to its constitutionpowers over trade and commerce within each state, placed itself in a position of control over industrial and economic activities throughout the United States. The Federal Government has been able to do so as a result of meaningful interpretation by the courts of the provisions of the Constitution relating to interstate commerce [see e.g. Hammer v. Dagenhart (1918) 247 U.S. 251; also United States v. Darby (1941) 312 U.S. 100 adopting the dissent–Holmes J. in which three other Judges concurred–in Hammer v. Dagenhart (see 247 U.S. at 277–281) which it overruled)]. A careful reading of section 149 of the 1979 Constitution leaves me with the settled impression that it is the intention of the framers of that Constitution to invest the National Legislature with overriding authority in matters of distribution of Revenue from the Federation Account to the States and Local Government Councils and, particularly, in (a) the allocation of the same to the States and in addition (b) to ensure that monies allocated to both the States and Local Government Councils therein are paid to the Local Government Councils as intended by and provided in the relevant subsections of section 149 aforesaid. That being so, it is my view that this Court is bound to give a purposeful interpretation to laws made pursuant to the enabling provisions of section 149 of the Constitution; and in doing so, it is well to bear in mind that “the sovereign power of the States is necessarily diminished to the extent of the grants of power to the Federal Government in the Constitution” [see the observations of Stone. J. in United States v. California (1936) 297 U.S. 175 at 184) (Italics mine)].

I have earlier examined critically and in detail the provisions of the relevant subsections of section 149 [i.e. 149(3), 149(4), 149(5), 149(6) and 149(7) and arrived at the conclusion that there is on the part of the framers of the 1979 Constitution a definite intention that the National Assembly should have considerable power in the allocation and control of the distribution of revenue to the States and Local Government Councils from the Federation Account, and, accordingly, that it was also their intention to displace the prima facie “rule of Separation of Powers” that (1) each State must control without any directions (including as to use of State functionaries) or interference by any other government and (2) each State is entitled to such control by use of its own machinery of government (including State functionaries) and no other. It seems clear to me that on reading the relevant subsections as a whole there is a clear intention in the Constitution, from the pith and substance thereof, that (a) there is to be established a State Joint Local Government Account to which monies from the Federation Account and States revenue must be paid and, (b) payment of the latter class of monies by the State into the said account, must be as directed by the National Assembly and (c), the said Assembly is expected to supervise and guide or monitor activities in this direction in the manner it deems fit; and, therefore, if necessary, by a committee the membership of which is therefore, also left in the entire discretion of the National Assembly. In this connection, I adopt gratefully the italicised portions of observations of Duff. J. in the Privy Council decision in Attorney–General for Ontario v. Reciprocal Insurers and Attorney–General for Canada (1924) A. C. 328 at 337; said the learned Judge:

“The question now to be decided is whether, in the frame in which this legislation of 1917 is cast, that part of it which is so enacted can receive effect as a lawful exercise of the legislative authority of the Parliament of Canada in relation to the criminal law. It has been formally laid down in judgments of this Board, that in such an inquiry the courts must ascertain the ‘true nature and character’ of the enactment. . . its ‘pith and substance’ and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in sections91 and 92 the legislation falls; and for this purpose the legislation must be ‘scrutinised in its entirety’: Great West Soddlery Co v. The King (1921) A.C. 91 at 117. Of course where there is an absolute jurisdiction vested in a legislature, the law promulgated by it must take effect according to the proper construction of the language in which they are expressed. But where the Law making authority is of a limited or qualified character, obviously it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what it is that the Legislature is really doing. . .”

It is, therefore, my view that where absolute authority has been given by the Constitution to the Legislature (in this case, the National Assembly) to enact a law, then the provisions of a law enacted pursuant to such authority must take effect according to the proper construction of the language in which they are expressed, notwithstanding the fact that the ultimate result may amount to an incursion into a States’ executive field of powers; the case however is different where the power given to the Legislature is of a limited or qualified character. Such, however, is not the case with the powers of the National Assembly under subsections (4) and (6) of section 149. Accordingly, I am of the view that the enactment in section 6(1) of the 1981 Act is within the competence of the National Assembly. I have also given consideration to subsection (3) of section 6 aforesaid and I am satisfied that it is only intended to enable the Committee appointed in subsection (1) of section 6 aforesaid to ensure that the allocations made by the National Assembly under section 149(4) and 149(6) of the Constitution are promptly and properly paid into the State Joint Local Government Account and are also distributed to Local Government Council’s as envisaged by the provisions of section 149(7) and in accordance with a law of a State House of Assembly made under that subsection (i.e. 149(7) aforesaid) I need only add that if there is any provision in the law enacted by a State under section 149(7)–e.g. in relation to the establishment of a State Joint Local Account Committee–which has the effect of conflicting with the provisions of, or a Committee set up under, section 6 of the 1981 Act then, since it appears to me that the powers for distribution of the allocation from the State Governments to Local Government Councils under the provisions of section 149 aforesaid are concurrent to both the National Assembly and a State House of Assembly, the provisions of the law enacted by the National Assembly must prevail. I would, therefore, refuse the prayer in the second arm of the plaintiff’s claims and dismiss the same; and I also endorse the orders as to costs in the judgment of my learned brother Uwais J.S.C.

Obaseki, J.S.C. This appeal has highlighted the very great importance of the provisions of section 149 of the 1979 Constitution. The Federal Republic of Nigeria is a Federation of 19 States and a Federal Capital Territory [sections 2(1), 2(2) and 3(1) of the 1979 Constitution]. Despite its Federal character, Nigeria is still one indivisible and indissoluble sovereign state [section 2(1) of the 1979 Constitution]. The 1979 Constitution has expressly declared that sovereignty belongs to the people of Nigeria from whom government, through this Constitution derives all its powers and authority [section 14(2)(a)]. The system of local government by democratically elected Local Government Councils having been guaranteed under the Constitution, the Constitution went on to make it mandatory for the Government of every State to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such Councils [section 7(1) or the 1979 Constitution].

We therefore have the Federal Government, the State Governments and the Local Government Councils in existence carrying on variously the functions of government. The services provided by the various governments can only be run or made available where funds to finance them exist. And as a major source of funds, the Constitution in subsection (1) of section 149 created the “Federation Account” to be maintained by the Federation and into which shall be paid all revenues collected by the Government of the Federation, except proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

Into this category falls the huge revenue from crude oil export which now accounts for 90% of Nigeria’s foreign exchange earnings.

The 1979 Constitution did not give all the revenue paid into the Federation Account to the Federal Government but instead gave powers to the National Assembly to distribute the amount among the three tiers of government–the Federal and State Governments, and the Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly (section 149(2)). I also gave power to the National Assembly to distribute any amount standing to the credit of the States in the Federation Account among the States on such terms and in such manner as may be prescribed by the National Assembly (section 149(3)).

In the like manner, the Constitution gave power to the National Assembly not to distribute but to allocate the amount standing to the credit of Local Government Councils in the Federation Account to the States for the benefit of their local Government Councils on such terms and in such manner as may be prescribed by the National Assembly [section 149(4)]. It is the States House of Assembly that prescribes how the amount is to be distributed [section 149(7)]. There lies the importance of section 149 of the Constitution. It ensures that most of the revenue of government are collected and distributed fairly among all the Governments.

Pursuant to the powers conferred on the National Assembly by section 149 of the Constitution of the Federal Republic of Nigeria 1979 hereinafter called in “1979 Constitution”, the National Assembly enacted the Allocation of Revenue (Federation Account etc.) At 1981 otherwise referred to as “Act No. 1 of 1982” The Act as its sole aim the intention expressed at the top of the enactment which reads:

“An Act to prescribe the basis for distribution of Revenue, accruing to the Federation Account between the Federal and State Governments and the Local Government Council in the States: the formula for distribution among the States inter se: The proportion of the total Revenue of each State to be contributed to the States’ Joint Local Government Account; and for other purposes connected therewith.”

The Attorney–General of Bendel State being of the view that some of the provisions of Act No. 1 of 1982 particularly sections 2(1), 2(2) and 6(1) were not authorised by section 149 of the Constitution instituted this action against the Attorney–General of the Federation claiming:

“(1) a declaration that subsections (1) and (2) of the Allocations of Revenue (Federation Account etc.) Act 1981 is unconstitutional and void insofar as each of the said subsections make provision for a fund to be administered by the Federal Government.

(2) a declaration that subsection (1) of section G. of the aforesaid Act is unconstitutional and void insofar as it enacts the establishment of a body to be known as the States Joint Local Government Account Allocation Committee.

(3) a declaration that the Government of Bendel is entitled to have from time to time a true and correct statement of all monies paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution.”

The action was commenced by the filing of a Statement of Claim. Notice of the action and the Statement of Claim were on the order of this Court served on all the remaining 18 States in the Federation not joined in the action and they were joined as defendants and served with a copy of the Statement of Claim.

The Attorney–General of the Federation, (1st defendant) and the Attorneys–General of 8 States, namely, Borno State, (5th defendant); Cross River State (6th defendant); Imo State (8th defendant); Lagos State (12th defendant); Ogun State (fourteenth defendant); Ondo State (15th defendant); Oyo State (16th defendant) and Rivers State entered appearance and each filed his statement of defence.

At the hearing, only Anambra State, Bauchi State, Benue State, Kano State, Kwara State and Niger State failed to enter appearance. The plaintiff called evidence but the defence did not. Only one witness, Mr F.G. Omarukhe, the Deputy-Accountant–General of Bendel State called by the plaintiff testified at the hearing. The first defendant called no witness and adduced no evidence. Neither did any of the other 18 defendants.

The first defendant’s Counsel, Mr Nwadialo, and the plaintiff’s Counsel. Chief F.R.A. Williams, S.A.N. addressed us at length. Each of the other Counsel gave short addresses associating himself either with the submissions of Counsel for the plaintiff or Counsel for the defendants. The facts were really not in dispute and as they have been given in detail in the judgment of my learned brother, Uwais, J.S.C. delivered a short while ago, which I had the privilege of reading in draft, I shall not deal with them in elaborate detail except insofar as may be necessary.

Having had the pleasure of reading in draft the judgment, I hereby express my concurrence with his conclusion that claims 1 and 3 succeed, and claim 2 fails. In other words, the declarations

(1) that subsections 1 and 2 of section 2 of the Allocation of Revenue (Federation Account etc.) Act 1981 (No. 1 of 1982) are, insofar as each of the said subsections makes provisions for a fund to be administered by the Federal Government unconstitutional, null and void; and

(2) that the Government of Bendel State is entitled to have on request and within a reasonable time, a true and correct statement of all monies paid by the Federal Government into the Federation Account kept with the Central Bank of Nigeria pursuant to section 149 of the Constitution;

sought have been substantiated and will be granted.

However, it is necessary to add my comments, observants and opinions on the issues raised by way of emphasis to those, of my learned brother.

The main issues raised in these proceedings is as to the correct interpretation of section 149 of the 1979 Constitution with respect of the limit of the powers of the National Assembly to enact laws for the distribution of the Revenue in the Federation Account. Two subsidiary issues were raised. The first subsidiary issue raised is whether in exercise of its powers under section 149 of the 1979 Constitution, the National Assembly can allocate a portion of the amount standing to the credit of the States for specific purposes to be administered by the Federal Government and the President of the Federal Republic.

The second subsidiary issue is whether the National Assembly can be enactment establish the Joint Local Government Account allocation Committee as it has done by section 6(1) of the Act No. 1 of 1982 in exercise of its powers under section 149(4) or under item A1(iv) of the Concurrent Legislative List in Part II of the second Schedule to the Constitution.

To answer these questions, detailed consideration of the submissions of Counsel is necessary and I will proceed to do so.

Learned Counsel for the plaintiff, Chief F.R.A. Williams, S.A.N., in his address asked what I would regard as a hypothetical question to wit:

“Has the National Assembly the power to allocate any portion of the money in the Federation Account for a specific purpose other than distributing the amount among the Federal and State Governments and the total Government Councils in each State?”

Suggesting answers to this question, learned Counsel went on to submit that where the National Assembly established a public fund for the Federation for a specific purpose, such fund can only be fed from monies, authorised by and payable under an Appropriation Act or Supplementary Appropriation Act. Learned Counsel then referred to the provisions of section 71 to section 78 of the 1979 Constitution and submitted that the provisions in section 2(1) and (2) of Act No. 1 of 1982 complained of subverted the need to go to the National Assembly for authorisation of the proposed expenditure as required by section 74 and section 75 and section 77 of the 1979 Constitution. Learned Counsel then examined the provisions of subsection 1, 2, 3 and 4 of section 149 of the Constitution and submitted that the National Assembly is not competent to allocate a percentage of the money standing to the credit of the Federation Account for the amelioration of ecological problems or for development of mineral producing areas.

Learned Counsel then urged the court to hold that the allocation of a percentage–1 percent and 1½ percent –out of the States’ 35 percent share for the purposes specified in section 2(1) and section 2(2) of Act No. 1 of 1982 was outside the legislative competence of the National Assembly.

Learned Counsel observed that the specific purposes specified were outside the executive competence of the Federal Government.

Dealing with claim 2, learned Counsel for the plaintiff contended that it is not competent for the National Assembly to impose duties or functions on State functionaries on the authority of the decision of this Court in the Attorney–General for Ogun State and others v. Attorney–General of the Federation (1982) 3 N.C.L.R. 166. Learned Counsel further submitted in the alternative that section 6(1) of Act No. 1 of 1982 is inconsistent with the Local Government Law 1980, Law No. 1 of 1980 and that a Law made by the State House of Assembly pursuant to section 149 would override a legislation made by the National Assembly under item A1(iv) of the Concurrent Legislative List.

Dealing with claim 3, learned Counsel submitted that since it is the Federal Government that maintains the Federation Account on behalf of both the Federal and State Governments and the Local Government Councils in each State. The State Governments are entitled to a true and correct account of all monies paid into the Federation Account in accordance with the provisions of subsection 1 of section 149 of the 1979 Constitution. This entitlement, learned Counsel contended, must be a right because the Federal Government holds the position of trustee of the fund and every beneficiary is in law entitled to an Account.

Mr Nwadialo, learned Counsel for the first defendant (the real defendant), submitted, in reply, that the power given to the National Assembly by the clause “on such terms and in such manner” in sections 2, 3, 4 and 6 of section 149 of the Constitution is enormous and expansive enough to give validity to subsections 1 and 2 of section 2 and subsection 1 of section 6 of the Allocation of Revenue (Federation Account etc.) Act 1981 No. 1 of 1982. Learned Counsel further contended that the allocations to the States on a proper view of section 2(1) and (2) still go to the States.

Learned Counsel, however, observed that the only limitations to the exercise of the powers given to the National Assembly by section 149 of the 1979 Constitution were two fold. The first limitation is that whatever terms or conditions or manner the National Assembly may prescribe, the powers which under the Constitution are exclusively preserved for the States or vested in the States should not be interfered with or encroached upon.

The second limitation, according to learned Counsel, is that the block allocation made to the State should be shared exclusively among the States.

In the instant case, learned Counsel submitted or conceded that the whole of the 35 percent allocated to the States by section 1 of Act No. 1 of 1982 shall be shared among the States. Learned Counsel, however, contended that the sharing may be both direct and indirect.

He then submitted that since the 1 percent for ecological problems and 1.5 percent for development of the mineral producing areas go in the final analysis to the States by way of indirect sharing, section 2(1) and 2 (2) of Act No. 1 of 1982 are valid and constitutional. Learned Counsel contended that as items 37 and 67 of the Exclusive Legislative List are matters within the Exclusive Legislative competence of the National Assembly and the development of mineral producing areas being incidental to mining activity, the complaint against sections 2(1) and 2(2) should be rejected.

With respect to ecological problems learned Counsel conceded that it is not an item either on the exclusive or concurrent Legislative List but contended that if it arises in the mineral producing areas, it is an incidental matter to mining activity in respect of which the National Assembly has power to legislate.

Dealing with claim 2, learned Counsel for the first defendant submitted that there is no conflict between the Bendel State Law No. 1 of 1980 and section 6(1) of Act No. 1 of 1982. He contended that the State House of Assembly can pass its law under section 149(7) of the Constitution and that if there is any conflict between the Bendel State’s Law and Act No. 1 of 1982 section 6(1) by virtue of section 4(5) of the Constitution Act No. 1 of 1982 prevails.

Learned Counsel conceded that to the extent that the State functionaries are vested with duties: by the National Assembly, section 6(1) of Act No. 1 of 1982 is null and void, on the authority of the Attorney–General of Ogun State and others v. Attorney–General of the Federation (supra).

He conceded that the formula prescribed in section 2 of the Act derogates from the provision of section 1 of the Act.

On claim 3, learned Counsel contended that the evidence shows that the statement of account is being supplied at the monthly meetings. Two Counsels, i.e. Counsel for the Sokoto State and Counsel for the Cross River State associated themselves with the submissions of Counsel for the first defendant while all the other Counsel who appeared i.e Counsel for the Attorney–General, Kaduna State, Attorney–General, Lagos State, Attorney–General, Ogun State and Attorney–General, Ondo State associated themselves in the main with the submissions of Chief F.R.A. Williams, S.A.N., Counsel for the plaintiff.

Although the judgment of my learned brother, Uwais, J.S.C. contains a reproduction of section 149 of the Constitution, it is necessary at this stage to set out the provisions of section 149 of the 1979 Constitution and examine the provisions of sections 1, 2 and 6(1) of the Act No. 1 of 1982 in light of the legislative powers which, on proper interpretation of section 149, were granted to the National Assembly by the Constitution. Section 149 reads:

“(1) The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

(2) 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.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

(4) The amount standing to the credit of Local Governments Councils in the Federation Account shall also be allocated to the States for the benefit of their local government councils on such terms and in manner as may be prescribed by the National Assembly.

(5) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations from the Federation Account and from the Government of the State.

(6) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(7) The amount standing to the credit of the Local Government Councils shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.”

Sections 1, 2, 3 and 6(1) and 6(3) of the Allocation of Revenue (Federation Account etc.) Act 1981 reads:

“(1) The amount standing to the credit of the Federation Account (as specified in subsection (1) of section 149 of the Constitution of the Federal Republic of Nigeria 1979 shall be distributed by the Government of the Federation among the various governments in Nigeria on the following basis that is to say—

 

 

(a)  Federal Governments

55%

(b)  State Governments

35%

(c)  Local Government Councils

10%

2

(2) The 35 percent specified in section 1(b) of the Act shall be sub-divided and allocated as follows that is as to 30.5 percent thereof to all the States; as to 1 percent thereof, to be paid into a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and as to the balance of 3.5 percent thereof to be shared on the basis of derivation in the manner set out in subsection (2) below.

(2) The 3.5 percent specified in subsection (1) above shall be sub-divided and allocated as follows, that is 2 percent shall be paid directly to the States concerned in direct proportion to the value of mineral extracted from the territory of the State and the balance of 1.5 percent shall be paid by the Government of the Federation into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be managed in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from around the particular areas.

(3) The amount standing to the credit of Local Government Councils in the Federation shall be distributed by the Federation among the States using the same factors as specified in 2(3) of this Act.

6

(1) There is hereby established for each State of the Federation a body to be known as the State Joint Local Government Account Allocation Committee which shall comprise the following members that is to say:

(a) The Commissioner charged with the responsibility for local government of the State to be the Chairman thereof;

(b) the Chairman of each Local Government Council in the State;

(c) two persons to be appointed by the Governor of the State;

(d) two representatives of the Accountant–General of the Federation;

(e) the Accountant–General of the State.

(2) The permanent Secretary of the State Ministry charged with responsibility for local government or such officer as may be designated by the said Commissioner shall be the Secretary to the Committee.

(3) The functions of the Committee shall be to ensure that allocations made to the Local Government Councils in the State from the Federation Account and from the State are promptly paid into the State Joint Local Government Account and distributed to Local Government Councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State.”

Having set out the enabling section of the Constitution, that is section 149 in full and sections 1, 2(1) and 2(2) and 6(1), 6(2) and 6(3) of Act No. 1 of 1982 enacted by virtue of the powers granted to the National Assembly by section 149, it now remains to consider the validity of sections 2(1), 2(2) and 6(1) of Act No. 1 of 1982 complained of.

It is conceded by all parties that section 1 of Act No. 1 of 1982 was enacted in full compliance with section 149(2) of the Constitution. Section 149(2) of the Constitution is clear and unambiguous. It gave power to the National Assembly to distribute any amount standing to the credit of the, Federation Account among the three tiers of government, i.e. Federal and State government Councils in each State. The emphasis is on the words “distribute” and “on such terms and in such manner.”

It is distributed in percentages and I find myself in entire agreement with the submissions of Counsel that the powers granted by section 149(2) of the 1979 Constitution were not exceeded. They were fully exercised in total compliance with the Constitution.

The complaint of the plaintiff in claim 1 is as to the exercise of the power granted in section 149(3) of the Constitution to distribute any amount standing to the credit of the States in the Federation Account among the States. Chief Williams quite rightly in my view, contended that the Government of the Federation i.e. the Federal Government is not entitled to any share to meet specific purposes in the distribution exercise under section 149(3) of the Constitution. The 1.00 percent allocated to the Federal Government for ecological problems in any part of Nigeria and the 1.50 percent allocated to be administered by the Federal Government for the development of mineral producing areas are allocations to the Federal Government out of funds already allocated to the States. This cannot be justified by taking refuge under the phrase “on such terms and in such manner.” That phrase qualifies distribution among the States and since it is conceded that the Federal Government is not a State in the context in which the word “State” is used in section 149(3) of the 1979 Constitution, it is not entitled to participate in the sharing.

The submission of Counsel for the plaintiff that on distribution, the shares of both Federal and State Governments form part of the consolidated revenue fund of the Federation and the States respectively (see section 74 and section 112 of the 1979 Constitution) is well founded. It appears that the allocation of 1 percent and 1.50 percent would avoid the restriction, (that no monies shall be withdrawn therefrom except to meet expenditure that is charged upon the fund by the 1979 Constitution or where the issue of those monies has been authorised by an Appropriation Act or law or Supplementary Appropriation Act or Law as the case may be) imposed by section 74(2) and section 112(2) of the 1979 Constitution.

The National Assembly was never empowered to allocate any money in the Federation Account for specific purposes. Such allocation is, in my view, unconstitutional and I accordingly find myself in agreement with my learned brother.

As regards claim 2, although there is much force and validity in the argument of plaintiff’s Counsel that the National Assembly has no power to impose functions on State executives and functionaries unless powers to do so are expressly conferred or given by implication by the Constitution, the establishment of the State Joint Local Government Account Allocation Committee to ensure the payment of all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State into the State Joint Local Government Account appears to me to be in valid exercise of the powers granted by subsections (4) and (6) of section 149. I do not think the establishment can draw validity from item A1(a)(iv) of the Concurrent Legislative List Part II of the Second Schedule to the Constitution. However, I think Chief Williams quite rightly submitted that such establishment pursuant to item A1(a)(iv) of the Concurrent Legislative List will be overridden by the establishment of such a committee by the House of Assembly pursuant to section 149(7) of the Constitution, the Powers to enact an Act under item A1(a)(iv) being made subject to the provisions of the Constitution.

Having regard to the powers given to the House of Assembly by section 7 of section 149 of the Constitution, I am of the opinion that a committee established under that section will have its function substantially different from that established by the National Assembly under subsections (4) and (6) and will have a more useful role as subsection 5 of section 149 directly set up the “State Joint Local Government Account” to be maintained by each state. It is a creation of the Constitution and the executive powers to maintain it are vested in the States by the Constitution.

It is to be observed that whereas subsection 4 of section 149 of the 1979 Constitution gives power to the National Assembly to prescribe how to allocate the amount standing to the credit of Local Government Councils in the ration Account the States for the benefit of their Local Government Councils, subsection 7 of the same section 149 empowers the House of Assembly of the States to prescribe how the amount standing to the credit of the Local Government Councils of the State in the State Joint Local Government Account shall be distributed among the Local Government Councils of that State. The only question which now remains for consideration in conclusion on claim 2, is whether the National Assembly can constitutionally impose any duty or function on the Chief Executive of the State and other State executives and functionaries as it has done in subsection 1 of section 6 of Act No. 1 of 1982. All Counsel are agreed that it cannot.

The 1979 Constitution has left one in no doubt as to the extent of the powers vested in the Chief Executive of the Federation and the Chief Executive of the State. They are expressly stated in subsection 1 and 2 of section 5, and read:

“(1) Subject to the provisions of this Constitution, the executive powers of the Federation

(ashall be vested in the President, and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

(bshall extend to the execution and maintenance of this Constitution and all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being power to make laws;

(2) Subject to the provisions of this Constitution, the executive powers of a State—

(a) shall be invested in the Governor of that State and may subject as aforesaid and to the, provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the service of the State; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”

It appears to me that while the executive powers of the President in the execution of Act No. 1 of 1982 with respect to payment of the amounts due to Local Councils can be exercised through the State Joint Local Government Account Allocation Committee established by section 6(1) of the Act, the executive powers of the Governor of the State in execution of a law passed by the House of Assembly pursuant to subsection 7 of section 149 of the Constitution, can only be exercised through a similar body if established by the law passed by the House of Assembly or through the Deputy Governor, Commissioners of the Government of the State and officers in the public service of the State. A law passed by the National Assembly cannot assume that status and force of constitutional provisions to which the vesting and exercise of executive powers in section 5 of the 1979 Constitution are made subject.

The decision of this Court in the case of Attorney–General of Ogun State and others v. Attorney–General of the Federation, is in my view, a correct interpretation of the constitutional restrictions on the exercise of conferment of executive powers. The dicta of my learned brothers, Fatai-Williams, C.J.N., Sir Udo Udoma, J.S.C., and Eso, J.S.C. on this point with which I respectfully agree are worthy of a place in this judgment. Commenting on the issue, Fatai-Williams, C.J.N on page 179 said:

“Neither the President of the Federal Republic nor the National Assembly can unilaterally confer powers on a State functionary such as the Governor or the Attorney–General of a State and thus brings him within the investigatory or scrutinising powers conferred upon the National Assembly by section 82(1) of the 1979 Constitution.”

Sir Udo Udoma, J.S.C. on the same issue, said at 189 thereof:

“On the basis of the provisions of the Constitution and having regard to the autonomy of the State and realising that the Governor is bound only to enforce all laws constitutionally made by the State House of Assembly, I accept the submissions made by Chief Williams, learned Counsel for the defendants and I am satisfied that neither the National Assembly nor the President can impose any new duty on the Governor of the State. Such an imposition would normally meet with resentment and refusal to perform for the enforcement of which there is no constitutional sanction.”

In the same vein, Idigbe, J.S.C. said at 195:

“Therefore assuming that the President could validly conduct the adaptation exercise under consideration in these proceedings, (i.e. adapt with a view to appropriate modification of the 1979 Public Order Act)–an issue which I propose to examine in the next paragraph, he could not validly confer functions (or functional obligations) on the Governor of the State of Ogun, Bendel and Borno or of any of the States of the Federation for that matter; nor as my Lord the Chief Justice has pointed out could be validly have imposed a duty (or functional obligations) on the said Governors.”

Lastly, adding to the, strong body of opinions on the issue, Kayode Eso, J.S.C. said:

“Surely, such a situation as stated above, could not be in the contemplation of the Constitution. A situation where the Chief Executive of the Country or a Federal functionary could be subject to sanctions by a State House of Assembly or State Chief Executive or functionary could be subject to the authority of the National Assembly would offend not only against the spirit but the letter of the Constitution. Each of the States Legislative Assemblies and National Assembly is sovereign in its own House; neither interferes with the Governments of the other. This is the basis of federalism. . .

I have already stated that the, President has no constitutional power to impose such obligations not only on a State Governor but a State functionary.”

However, it is my view that the power given by the Constitution to the National Assembly in subsection 2 of section 149 to prescribe the terms and manner of distribution of the amount standing to the credit of the Federation Account among the, Federal and State Governments, and the Local Government Councils in each State necessarily carries with it the power to confer functions of States’ Chief Executives and State’ functionaries responsible for the administration of Local Government Councils.

Similarly, the power given to the National Assembly to allocate any amount standing to the credit of the Local Government Councils in the Federation Account to the States for the benefit of the Local Government Councils on such terms and in such manner as it may prescribe [section 149(4)] in my opinion is an express power given by the Constitution to impose on States Chief Executives and other States’ functionaries duties for the benefit of the States and Local Government Councils the States’ Chief Executives administer.

Likewise the power granted to the National Assembly to prescribe the proportion of its total revenue the State shall pay the Local Government Councils in its area of jurisdiction section 149(6) is in my view an express power to impose duties and function on States’ Chief Executives and States’ functionaries.

These are exceptions made by the Constitution to the general principle of separation of powers in the executive branch of the Federal and State Government in the Federation as envisaged in section 5 of the 1979 Constitution.

I am therefore unable to accept the submission of learned Counsel to the plaintiff that the conferment on the State functionaries of membership of the State Joint Local Government Account Allocation Committee is unconstitutional, null and void.

It is constitutionally permitted and I am of the firm opinion that the establishment of the State, Joint Local Government Account Allocation Committee is valid. It is clear from the functions allocated to it that the duties are within the normal constitutional functions of the State Chief Executive and functionaries envisaged in section 7(1) of the 1979 Constitution.

Turning to claim 3, the claim for account, I think it ought to go without saying that the States as substantial beneficiaries (it should be recalled that both the share due to the State Governments and the share due to the Local Government Councils of the State are for the States) are entitled to a true and correct statement of account of all monies paid into the Federation Account at regular intervals.

For the above reasons, I find myself in entire agreement with my learned brother, Uwais, J.S.C. that claims 1 and 3 succeed and claim 2 fails. I hereby grant the declarations sought in claims 1 and 3 and refuse the declaration sought in claim 2. Each party shall bear his own costs.

Eso, J.S.C. I agree with the judgment which has just been delivered by my learned brother, Uwais J.S.C. I had a preview of it in draft. I will like to add a few words of mine having regard to the importance of the provision of the Constitution which is being construed, that is, section 149, and which deals with the distributable pool account. The section deals with the distribution of all revenues collected by the Government of the Federation. It is only after there has been distribution among the three governments of the Federation, to wit—

(a) The Federal Government,

(b) The State Governments, and

(c) The Local Governments,

that public funds could be available for the three distinct governments and that there could be the establishment of Consolidated Revenue Fund for the Federation, the powers and control over which are dealt with by sections 74-78 insofar as the Federal Governments is concerned and sections 112-116 insofar as concerns the State Governments.

Perhaps it would be better to make it a bit more explicit. Nigeria under the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to simply as the 1979 Constitution, has a Federal Government. At the apex is the Government of the Federation itself with powers to legislate on matters contained in the Legislative Lists, that is the Executive legislative List and the Concurrent Legislative List contained in Parts I and II respectively of the Second Schedule to the 1979 Constitution. The State Governments have power to legislate on all matters in the Concurrent Legislative List and all other matters not specified in either Legislative List.

The 1979 Constitution also provides for the local government system for section 7 (1) thereof provides that—

“The system of local government by democratically elected Local Government Councils is under this Constitution guaranteed; and accordingly, the Government of every State shall ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such Councils.”

So, in effect, there are three governments as I have already said, to run the democracy.

Now, to provide fund for the running of this democracy through these three governments, section 149 of the 1979 Constitution provides for a special account, which shall be called “the Federation Account.” Into this account is paid all revenues collected by the Federal Government. The only exceptions to this, that is, revenues that are not paid into the Federation Account, are proceeds of—

(a) personal income tax of the personnel of the armed forces of the Federation;

(b) personal income tax of the personnel of the Police Force;

(c) personal income tax of the personnel of the Ministry of External Affairs; and

(d) personal income tax of the residents of the Federal Capital Territory, that is, Abuja.

When all these revenues have been paid into the Federation Account, the next step is distribution among the three governments. The distribution among these three governments is done by the National Assembly. The National Assembly, in other words, is responsible for working out a formula for the distribution. And this is contained in an Act of the Assembly. The National Assembly has power to prescribe the terms and the manner in which the amount in the Federation Account shall be distributed among the three governments (see section 149 of the 1979 Constitution).

It is to this end that the Revenue allocation (Federation Account etc.) Act 1981, (1982 No. 1), hereinafter referred to as “the Revenue Allocation Act,” in distributing the amount, went on a formula, as prescribed in section 1. thereof, to wit—

 

Federal Government

55%

State Governments

35%

Local Government Councils

10%

see also item A.1 of the Concurrent Legislative List contained in part II of the Second Schedule to the 1979 Constitution.

This then is the formula prescribed by the Revenue Allocation Act. In other words, while the Federal Government is to have 55 percent of all the monies in the Federation Account, all the nineteen States in the Federation shall share 35% while all the Local Governments shall share 10 percent. When the monies have been distributed, the Federal Government share of 55 percent shall go into its Consolidated Revenue Fund established under section 74 of the 1979 Constitution while the share of the States shall be shared among the States and the share of each shall go into its Consolidated Revenue Fund established under section 112 of the Constitution.

Chief Williams, in making his submission on section 149 of the 1979 Constitution did refer us to section 74 of that Constitution as an aid to the construction we would place on section 149.

I have given careful thought to these provisions and I think the reference made by learned Senior Advocate to section 71 is relevant. On a first reading of the two provisions, that is sections 74 and 149, there seems to be a conflict. But section 149 is, no doubt, a special provision, and I think section 74 which deals with the Consolidated Revenue Fund recognises this for subsection (1) thereof excludes revenues payable under the Constitution which must necessarily include public revenue provided for by section 149 of the Constitution.

I am satisfied therefore that notwithstanding the powers of the National Assembly under section 74, the provisions of section 149 must be given effect to and it is only after this that what belongs to the Federal Government under the formula prescribed by the National Assembly following the provisions of section 149 of the Constitution, is paid into the Consolidated Revenue Fund established under section 74 of the Constitution.

This case deals with the distribution of the amount standing to the credit of the Federation Account and must be governed by section 149 of the Constitution. Now to examine the complaints of the plaintiff. The first two complaints, in general, are that some provisions of the Act of the National Assembly, that is, the Revenue Allocation Act 1982 No. 1, which give effect to the constitutional enactment aforesaid, are contrary to the provisions of the 1979 Constitution. The third claim is for a declaration that the plaintiff government is entitled to have, from time to time, a true and correct statement of all monies paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution.

If, as provided for by subsection (1) of section 149 of the Constitution, the Federation maintains the Federation Account as a special account into which all revenues collected by the Government of the Federation (with some exceptions, however) are paid, then, to deal with the third claim of the plaintiff first, equity demands that, as the Federal Government maintains the Federation Account on behalf of itself and all the States in the Federation, the States should have access to the account kept in respect of this account and I agree with my learned brother that the declaration sought under head (3) should be granted in terms of the claim of the plaintiff.

The Federal Government is, in this case, in the same position as a trustee of, or in common parlance, a banker for the States in regard to the Federation Account. The Federal Government does not dispute maintaining the Federation Account on behalf of the States. Indeed, the evidence before us is to the effect that all Accountants–General from all the States meet their Federal counterpart in Lagos monthly in respect of this account. There is also no doubt that a huge amount is involved. For the month of November 1982 alone the amount was just a little short of one billion. I do not think that the defendant’s resistance of this claim has any merit. The claim is therefore granted. It might in fact be adequate if the Federal Government gives a quarterly statement of all the monies paid into the Federation Account to the States.

It is the two other claims that call for the interpretation of section 149 of the 1979 Constitution. The first claim is:

“a declaration that subsections (1) and (2) of section 2 of the Revenue Allocation (Federation Account etc.) Act 1981 (sic) is unconstitutional and void in as far as each of the said subsections makes provision for a fund to be administered by the Federal Government.”

Subsections (1) and (2) of section 2 of the Revenue allocation (Federation Account etc.) Act 1981, provide:

“2

(1) The 35 percent specified in section 1 (b) of this Act shall be subdivided and allocated as follows, that is as to the 30.5 percent thereof, to all the States; as to 1 percent thereof, to be paid into a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and as to the balance of 3.5 percent thereof, to be shared on the basis of derivation, in the manner set out in subsection (2) below.

(2) the 3.5 percent specified in subsection (1) above shall be sub-divided and allocated as follows, that is 2 percent shall be paid directly to the States concerned in direct proportion to the value of minerals extracted from the territory of the State and the balance of 1.5 percent shall be paid by the Government of the Federation into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be managed in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from and around the particular areas.

The enabling provision for this section in the 1979 Constitution, section 149(2) and (3) of the 1979 Constitution, provides:

“2

(2) 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.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.”

The question posed by the first claim is whether or not, as stated in paragraph five of the Statement of Claim, section 2(2) of the 1981 Revenue Allocation Act is unconstitutional and void for making provision for a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and for the development of mineral producing areas in Nigeria and the second claim is whether or not section 8(1) of the Act is void and unconstitutional for making provision for the establishment of a Joint Local Government Account Allocation Committee for each State.

I will take section 2 of the 1981 Revenue Allocation Act first and examine it against the background of the enabling constitutional provision. Section 149(3) enables the National Assembly to enact a law to the effect that the amount standing to the credit of the States, in this case 35 percent of the amount standing to the credit of the Federation Account as specified in section 1 of the 1981 Revenue Allocation Act, shall be distributed ONLY among the States, the States being one of the three beneficiaries provided for by subsection (2) of section 149 of the 1979 Constitution. Though subsection (3) provides for the distribution “on such terms and in such manner as may be prescribed by the National Assembly,” it is my respectful view that whatever the terms and manner the National Assembly may prescribe, on no account shall the distribution go outside the States. Anything to the contrary must be unconstitutional.

When subsection (1) of section 2 of the 1981 Revenue Allocation Act provides that 1 percent of the fund shall be paid into a fund “to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria,” this is in contradiction of the enabling constitutional provision. To my mind the terms and manner of distribution among the States which only prescribe a formula can never serve as authority for the National Assembly to give any fraction or percentage, however microscopic, of the amount that has, by the formula, been prescribed in section 1 of the 1981 Revenue Allocation Act, as enabled by subsection 2 of section 149 of the 1979 Constitution, to any person or authority outside the States. What subsection (1) of section 2 of the 1981 Revenue Allocation Act and indeed subsection (2) thereof as will be seen presently, have done is to import foreign elements into a constitutionprovision. This cannot stand.

It means further that whatever use the Federal Government or any donee, unknown to the constitution, of that fraction or percentage would put the amount to, is immaterial to the interpretation of the provision limiting the distribution only among the States. It is also not a saving of the provision that the problems the percentage or fraction are to meet are in the States or indeed purely State problems.

I hold the view that the provisions of section 149 are very clear and unambiguous. They mean precisely what they say.

The same argument goes for the, 1.5 percent which under subsection (2) of section 2 of the 1981 Revenue Allocation Act is to be paid to a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria. As I have said earlier in this judgment whatever may be the result of the administration by the Federal Government of the fund meant for the States, any fraction or percentage, however microscopic, of the funds which by the formula, enabled by subsection (2) of section 149 of the 1979 Constitution and insofar as this case is concerned, provided by section 1 of the 1981 Revenue Allocation Act, that does not go directly, under the exercise of distribution, to the States, will render the legislation void and unconstitutional.

Chief Williams has argued in the alternative, and I have no doubt he is right, that in any event, on no account can such administration of the funds be in pursuance of anything outside the legislative competence of the National Assembly, that is, outside the Legislative Lists. Learned Counsel has in mind ecological problems which are definitely not within either the exclusive or the concurrent Legislative List. However, as for the development of mineral problems it is to be noted that mines and minerals are contained in item 37 of the Exclusive Legislative list and it may be argued, and I think with considerable force, that development of mineral producing areas in Nigeria might be held to be incidental (see item 67) to the aforesaid item 37.

What I think is important, is however, that on an ordinary literal interpretation of section 149 of the 1979 Constitution it is plain beyond doubt that any enactment that gives any portion, however so small, of the percentage due to the States to any person, project, organisation or institution other than the States, is void and unconstitutional. And so be it in this case.

It would indeed have been a different matter if the 1% meant “for the amelioration of ecological problems. . .” or the 1.5% meant for the development of the mineral producing areas have been created from the Federal Government share for them to administer for these purposes. One may contrast these allocations with the 2 percent which under subsection (2) of section 2 of the 1981 Revenue Allocation Act is to be paid “directly to the States,” concerned in direct proportion to the value of minerals extracted from the territory of the State. It is my respectful view that while this allocation of 2% to the States is valid and accords with the provisions of the 1979 Constitution, the allocations of 1 percent for ecological problems in the States and 1.5 percent for development of mineral producing areas in the country, out of the 35 percent due to the States, to be administered by the Federal Government are invalid and unconstitutional for the more reason that the allocations belong to the States but have been made to the Federal Government.

For these reasons and the other reasons so well stated by my learned brother Uwais J.S.C. in the lead judgment, I agree that the “declaration that subsections (1) and (2) of section 2 of the Revenue Allocation (Federation Account etc.) Act 1981 are unconstitutional and void insofar as each of the said subsections makes provision for a fund to be administered by the Federal Government.” The declaration sought in the first claim by the plaintiff should be granted and is hereby granted in the terms of the claim.

I will now consider the second claim. This is in regard to section 6 of the 1981 Revenue Allocation Act which provides:

“6

(1) There is hereby established for each State in the Federation a body to be known as the State Joint Local Government Account Allocation Committee which shall comprise the following members, that is to say:

(a) the Commissioner charged with the responsibility for local government in the State to be the Chairman thereof;

(b) the Chairman of each Local Government Council in the State;

(c) two persons to be appointed by the Governor of the State;

(d) two representatives of the Accountant–General of the Federation; and

(e) the Accountant–General of the State.

(2) The Permanent Secretary of the State Ministry charged with responsibility for local government or such officer as may be designated by the said Commissioner shall be the Secretary to the Committee.”

Subsection (3) thereof is very interesting for it provides for the functions of the Committee, which

“shall be to ensure that allocations made to the Local Government Councils in the State from the Federation Account and from the State concerned are promptly paid into the State Joint Local Government Account and distributed to Local Government Councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State.”

It is obvious that the National Assembly, by the provisions of section 6, has conferred functions on State officials or functionaries. The Assembly has even specified the functions thus conferred (see subsection (3)).

Chief Williams has relied on the dicta of this Court in the Attorney–General of Ogun State v. Attorney–General of the Federation (1982) 3 NCLR 189 as per Fatai-Williams C.J.N.

(See page 179) Sir Udo Udoma J.S.C. (see page 189), Idigbe J.S.C. (see page 194) and myself see pages201-202.

It was the view of this Court that neither the President of the Federal Republic nor the National Assembly can unilaterally confer powers on a State Governor or State functionary. The State Assembly cannot do it in converse either.

The 1979 Constitution is a unique Constitution. It is different from the Constitutions this country had operated before 1979. This is a Constitution that has provided two distinct governments to share the executive and legislative functions. Section 5 of the 1979 Constitution vests the executive powers of the Federation in the President. These powers (see subsection (1)(a)) can only be exercised by the President either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation. These powers (see paragraph (b) of subsection (1)) extend to the execution and maintenance, of the Constitution, all laws made by the National Assembly (note: do not include laws made by the State Assemblies).

Indeed in this type of government both the National Assembly and the State Assembly are sovereign in their respective domains. This however must be subject to specific constitutionprovisions whereby by and under the Constitution the National Assembly or the State Assembly is authorised to confer functions on the officials of the other. This is not all. By necessary implication, the Constitution may also provide this.

Where the Constitution has failed to make provisions directly and it could not be inferred from any of its provisions that such is the case, I believe the only other way is either government to seek the cooperation of the other, and by administrative arrangement, solve the problems. This I think is what this Court had in mind when it decided in the Ogun State case (supra), that such exercise of one Assembly imposing duties on the functionaries of the other unilaterally is fruitless as it is untenable in law.

There is no doubt that there is no express provision in subsections (4), (5) and (6) of section 149 of the 1979 Constitution which is the enabling provisions for section 6 of the Revenue Allocation Act. It is not the case of the defendant that there is an administrative arrangement in regard to this matter between the Federal Government and the State Governments. For section 6 of the Revenue Allocation Act to be valid therefore there must be authority in section 149(4), (5) and (6) of the 1979 Constitution which though is not direct must be by implication.

Mr Nwadialo’s contention is that under subsection (4) of section 149, the allocation to the States, for the benefit of their Local Councils shall be on such terms and in such manner as may be prescribed by the National Assembly Counsel’s contention is that the National Assembly by legislation (that is by prescription) in setting out the terms and manner of the allocation can also confer functions on the State Assemblies in regard to matters contained in section 149(4), (5) and (6). I must say that the issue here has given me anxious moments. It is my view that for the Constitution to provide for the National Assembly to confer functions on State officials it must either state it directly or it could be so clearly inferred. If one has to read such provision into the Constitution the provision one interprets to convey this inference must be so clear and point irresistibly to such interpretation.

The 1979 Constitution, unlike the Constitution of the United States of America, contains detailed provisions. The Supreme Court of the United States, in view of the scanty provisions in the Constitution of that country, has more room, in the area of interpretation, to manoeuvre than this Court.

I do agree with Justice McKenna who in Hoke v. United States 227 US 308 said—

“Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction. . . but it must be kept in mind that we are one people; and the powers reserved to the States and those, conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.”

What the learned Justice said of the position in the United States is equally true of this country. There must be areas of intercourse between the Federal Government and the States. The Judiciary and the police are cases in point, but then the 1979 Constitution makes adequate provisions for this intercourse in regard to these two institutions. It is not for this Court to extend the powers of the National Assembly beyond the confines of the Constitution. Hence there must be a real caution while examining the provisions of the Constitution in these areas to see whether, where the Constitution has not specifically conferred powers on the National Assembly to impose duties on the States, the implications in the provisions are so clear that the National Assembly has such powers in the specific cases.

It is with this anxiety that I have examined the provisions of section 149 of the 1979 Constitution and the Revenue Allocation Act which they purport to enable.

Now subsection (5) of section 149 of the 1979 Constitution imposes a duty on the States to maintain a special account which shall be called the State Joint Local Government Account. Again, all allocations to the Local Government Councils of the State from the Federation Account and allocation to the Local Government Councils of the State from the State shall be paid into this special account.

It seems to me very clear that both the Federal Government which maintains the Federation Account [see section 149(1)], and the Governments of the States which are obliged to make an allocation to the Local Government Councils from their own funds are interested in this special account, that is, the State Joint Local Government Account.

Therefore when under section 149(4) of the 1979 Constitution, the National Assembly is to prescribe the terms and manner by which to allocate the amount standing to the credit of the Local Government Councils in the Federation Account which the Federation maintains to the States for the benefit of their Local Government Councils [see subsection (4)] or States to pay to Local Government Councils in their areas of jurisdiction such proportion of the States’ total revenue on such terms and in such manner as may be prescribed by the National Assembly [see subsection (6)], it seems to me clear that the 1979 Constitution by its provisions in subsections (4), (5) and (6) of section 149 is creating an exception to the general principle that the National Assembly cannot confer functions on State functionaries.

For if, as it is clear, both the Federal Government and the State Government are interested in the State Joint Local Government Account, the National Assembly in establishing the Account has to think of the interests of both the Federal or State Governments and in setting up to composition of the Committee and determining its functions, it is to be expected that the National Assembly will include representatives of the two “governments.”

For these reasons and the reasons stated by my learned brother Uwais, J.S.C., I hold that section 6 of the Revenue Allocation (Federation Account, etc.) Act 1982 No. 1 is valid. The plaintiff fails on the second claim while he succeeds on the first and the third claims.

I endorse the order as to costs made in the judgment of the Presiding Justice Sowemimo, J.S.C.