ATTORNEY-GENERAL OF OGUN STATE AND 4 OTHERS v. ATTORNEY-GENERAL OF THE FEDERATION (SC 137/2001) [2002] 3 (13 December 2002);

  • Home
  • /
  • ATTORNEY-GENERAL OF OGUN STATE AND 4 OTHERS v. ATTORNEY-GENERAL OF THE FEDERATION (SC 137/2001) [2002] 3 (13 December 2002);

Headnote and Holding:

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 13TH DAY  OF DECEMBER 2002

SC 137/2001

BETWEEN

ATTORNEY-GENERAL OF OGUN STATE AND 4 OTHERS ............................. PLAINTIFFS

AND

ATTORNEY-GENERAL OF THE FEDERATION ............................... DEFENDANT

BEFORE: Muhammadu Lawal Uwais, CJN; Salihu Modibbo Alfa Belgore; Uthman Mohammed; Sylvester Umaru Onu; Anthony Ikechukwu Iguh; Samson Odemwingie Uwaifo; Akinola Olufemi Ejiwunmi, JJSC

ISSUES

Whether the failure to pay into the Federation Account, proceeds accruing from stamp duties, capital gains tax and certain other income derived by the Federal Government, was unconstitutional?

Powers of the Federal Government, in dealing with the Federation Account.

 

FACTS

The plaintiffs severally brought an action against the Federal Government of Nigeria. The Supreme Court having found the claims similar consolidated the actions. In their claims, the plaintiffs sought a number of declarations, most of which were abandoned. The remaining were that, the deductions by the Federal Government from the Federation Account to fund certain projects and parastatals as a first line charge were illegal and unconstitutional; that the Federal Government by the provisions Section 162 of the Constitution is under a duty to distribute the amount standing to the credit of the Federation Account to only the three tiers of Government and that the Federal Government is obliged to pay certain proceeds and income accruing from privatisation, stamp duties and capital gains tax into the Federation Account. The plaintiffs also challenged the constitutionality of the Federal Government's payment of amount standing to the credit of the Local Governments directly to the Local Governments.

The defendant on the other hand challenged the plaintiffs' claims and posited that the action of the Federal Government in deducting certain amounts from the Federation Account is consistent with the Allocation of Revenue (Federation Account etc.) Act as amended by the Revenue Act. On the second claim the Federal Government submitted that pending an Act of the National Assembly in this regard the system of revenue allocation and distribution under the existing Act shall continue to apply. On the third claim, the defendant responded that an Act of the National Assembly is required under Section 162(3) of the 1999 Constitution and that since the National Assembly has not made any prescription as to the allocation and distribution of the amount standing to the credit of the Federation Account, the existing laws applicable continue to be in force and that any claim by the plaintiffs under Section 162(3) of the 1999 Constitution is incompetent.

 

HELD

1.      On the distribution amongst the States of the proceeds of tax or duties

Section 163 of the Constitution of the Federal Republic of Nigeria 1999 provides that the net proceeds of tax or duty accruing to the Federal Government shall be distributed among the States on the basis of derivation. Thus, where such tax or duty is collected by the Government of the State, the net proceeds shall be treated as part of the Consolidated Revenue Fund of that State; and where the tax or duty is collected by the Federal Government, each State must be paid a sum equal to the proportion of the net proceeds of the tax or duty derived from that State. Per Onu, JSC, at page 31.

 

2.      On the Federal Government's powers in terms of Section 62(5)-(8) of the Constitution of the Federal Republic of Nigeria 1999

The Federal Government is not entitled within the proper meaning of Section 62(5)-(8) of the Constitution of the Federal Republic of Nigeria 1999 to pay the amount standing to the credit of the Local Government Councils in the Federation Account directly to the Local Government Councils. Such payments by the defendant were illegal and unconstitutional. Per Onu, JSC, at page 31.

 

3.      On the constitutional validity of Section 6(1), (2) and (3) of the Allocation of Revenue (Federation Account) Act Cap. 16 Laws of the Federal Republic of Nigeria

As Section 6(1), (2) and (3) of the Allocation of Revenue (Federation Account) Act Cap. 16 Laws of the Federal Republic of Nigeria was inconsistent with Section 62(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999, the former Section was held to be invalid, unconstitutional, null and void and of no effect. Per Onu, JSC, at page 31.

 

Chief O. Oyebolu, A-G of Ogun State, with him A. A. Babawale (Mrs) D.C.L., for the first plaintiff.

Yemi Osinbajo, SAN, A-G of Lagos State, with him L. Pedro, Head of Department of Civil Litigation and A. Ipaye for the second plaintiff.

A.A. Lawal, A-G of Oyo State, with him A.I. Raheem, SLO for the third plaintiff.

Dr T. Abayomi with him O. Adu (Miss) for the fourth plaintiff.

N. O. Folorunso, D.P.P. Osun State, with him O. Obibakin State Counsel, for the fifth plaintiff.

R. Jacobs with him K. Oni for the defendant

 

The following cases were referred to in this judgment:

Nigeria

A-G, Federation v A-G, Abia State & 35 others (No 2) (2002) 6 NWLR (Part 764) 542

Awomuti v Salami & others (1978) 3 SC 105

Board of Customs and Excise v Barau (1982) 10 SC 98

Chief Frank Ebba v Washi Ogodo & another (1984) 1 SCNLR 372

Ikine v Edjerode (2001) 18 NWLR (Part 745) 466

J.S. Olawoyin v A-G, Northern Region (1961) 1 All NLR (Part 2) 269

Labiyi v Anretiola (1992) 8 NWLR (Part 158) 139

Okon & others v The State (1988) 1 NSCC 156

Omoregie v Omigie (1990) 2 NWLR (Part 130) 29

Onobruchere v Esegine (1986) 1 NWLR (Part 19) 799

Tukur v Government of Gongola State (1989) 2 NWLR (Part 117) 517

Uwaifo v A-G Bendel State (1982) 7 SC 124

 

Foreign

Armah v Government of Ghana (1968) AC 192

Minister of Housing and Local Government v Hertnell (1965) AC 1134

Registrar of Restrictive Trading Agreements v W.H. Smith & Sons Ltd (1968) 1 WLR 1541

 

The following statutes were referred to in this judgment:

Nigeria

Act No 106 of 1992: S 5(2)

Act No 16 of 1982: S 6(1)

Act No 16 of 1990: S 1(d), (i-v)

Allocation and Fiscal Commission Act Cap. 392 LFN 1990: S 2

Allocation of Revenue (Federation Account, etc.) 1990: Ss 1(d), (i-v)

Allocation of Revenue Account etc. Act Cap. 16 LFN 1990: S 5(1)

Constitution of the Federal Republic of Nigeria 1999: Ss 4(4); 4(5); 4(7); 6; 80(1); 80(2); 81(3); 149(1); 162(1); 162(3); 162(4); 162(5); 162(6); 162(8); 162(9); 162(10)(a); 162(10)(c); 163(b); 163(3); 232(1), 274; 313; 314; 315(3); 315(4)(b)

Decree No 1 of 1984: S 1(2)

Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1976: Ss 3; 6(1); 6(2); 6(3)

Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1992: Ss 1(d), (i-v)

Public Enterprises (Privatisation and Commercialisation) Decree No 28 of 1999: Ss 20; 21(2)

 

The following book was referred to in this judgment:

Interpretation of Statutes, Maxwell (11ed) at 228

 

Onu, JSC (Delivered the Leading Judgment):- The five suits considered together herein are so considered because of their similarity as to facts and for facility and convenience of trial. Hence, I have decided to consolidate them, as I shall shortly demonstrate.

Be that as it may, I wish to commence their consideration by observing that as the Lagos State Attorney-General's case is more comprehensive albeit that the other states are asking for more or less the same reliefs, I will dwell more on the Lagos State case whilst not forgetting to treat the other states' matters in due course. In dealing with the reliefs claimed in all these cases one cardinal point that remains uppermost in my mind, however, is the fact that our decision in this Court reported as A-G, Federation v A-G, Abia State & 35 others (No 2) (2002) 6 NWLR (Part 764) 542 SC has answered most questions in the present case. That case having thus answered many points raised in the case in hand, what remains to be considered will be confined within a narrow compass.

In the Lagos State case, the reliefs claimed by the Attorney-General in his amended Statement of Claim, which I regard as the fulcrum upon which his action revolves, are pleaded in paragraph 18 thereof thus:-

"18. Whereof the plaintiff claims the following reliefs:-

1.      A declaration that it is illegal and unconstitutional being contrary to Section 162(3) of the Constitution of the Federal Republic of Nigeria 1999 for the defendant to make deductions as a first line charge on the Federation Account to fund the following to wit:-

(a)     NNPC joint venture projects;

(b)     NNPC priority projects;

(c)     Central Bank of Nigeria (CBN) priority projects;

(d)     The National Judicial Council;

(e)     Foreign debts incurred by the Federal Government;

(f)      1 percent of the Federation Account said to be statutory allocation to the Federal Capital City, Abuja.

 

2.      A declaration that the defendant is under Section 162(3) of the Constitution of the Federal Republic of Nigeria, 1999 to distribute the amount standing to the credit of the Federation Account between the Federal, State and Local Government Councils and to no other party or Fund.

3.      A declaration that the defendant is not entitled to make any deductions whatsoever from the Federation Account before the amount in the Account is distributed among the Federal, State and Local Government Councils on the terms and in the manner prescribed by the Nation Assembly and that any prior deductions before such distribution as being made at present by the defendant is illegal and unconstitutional being contrary to Section 162(3) of Constitution of the Federal Republic of Nigeria, 1999.

4.      A declaration that on a proper construction and interpretation of Sections 80, 81 and 162 of the Constitution of the Federal Republic of Nigeria, 1999 the payment of salaries of Judicial Council is not a charge on the Federation Account and it is illegal and unconstitutional to deduct those salaries directly from the Federation Account as first line charge or at all.

5.      A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162(i) and (iv) of the Constitution of the Federal Republic of Nigeria 1999 to pay into the Federal Account all the proceeds and income, save those exempted under Section 162(i), accruing from the privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source.

6.      A declaration that it is unconstitutional and illegal for the defendant whether by itself, its officer, agents, privies, or otherwise howsoever to withhold and not pay into the Federation Account proceeds and/or income, save those exempted under Section 162(i), accruing from the privatisation of Government enterprises and other income accruing to or derived by the Federal Government from any other source.

7.      A declaration that the defendant is not entitled within the proper meaning of Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 to pay the amount standing to the credit of the Local Government Council in the Federation Account directly to the Local Government Councils and that such payments by the defendant is illegal and unconstitutional.

8.      An order directing the Federal Government of Nigeria, whether by herself, her officers, agents, servants, and/or privies or otherwise howsoever to pay such sums or amount as are standing to the credit of the Local Government Councils in the Federation Account from time to time to the plaintiff for the benefit of the States and Local Government Councils in accordance with the provisions of Section 162(5) of the Constitution of the Federal Republic of Nigeria, 1999.

9.      A declaration that the deduction of funds from the Federation Accounts by the defendant to fund and maintain a Stabilisation Account is illegal and unconstitutional.

10.     A declaration that it is illegal and unconstitutional for the defendant to deduct any sums of money from the Federation Account for the purpose of servicing foreign or external debts incurred by the Government.

11.     A declaration that Section 1 (d), (i-v) of the Allocation of Revenue (Federal Account etc.) Cap. 16, Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1992 is inconsistent with Section 162(3) of the Constitution of the Federal Republic of Nigeria, 1999 and is to that extent invalid, unconstitutional, null and void and of no effect.

12.     A declaration that Section 3 and 6(1), (2) and (3) of the Allocation of Revenue (Federation Account) Act Cap. 16 Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1976 are inconsistent with Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 and are invalid, unconstitutional, null and void and of no effect.

13.     An order directing the Federal Government to render a full and proper account of all the monies properly payable into the Federation Account and or mandatorily required to be paid into the Federation Account as stipulated by Section 162(1) and (10) of the Constitution of the Federal Republic of Nigeria, 1999 from 29 May 1999 till judgment.

14.     An order directing the Federal Government of Nigeria to pay to the plaintiff all sums properly found due and unpaid to the plaintiff in respect of its share from the Federation Account on the proper and lawful distribution amongst the States of the appropriate and true amount standing to the credit of States in the Federation Account.

15.     An order of injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever and howsoever from keeping.

16.     An order of injunction restraining the Federal Government of Nigeria whether by herself, her servants, and/or agents or otherwise howsoever from breaching the clear provisions of Section 81(3) and 162 of the Constitution.

17.     An order of injunction restraining all officers, servants, and functionaries of the Government of the Federal Republic of Nigeria or any other public officer of the said Government whomsoever and howsoever from deducting or taking any sums of money whatsoever from the Federation Account for the purpose of funding any project or effecting any payment whatsoever except for the purpose of distributing such monies amongst the Federal, State and Local Government as provided by law.

18.     An order of injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officer of the said Government whomsoever and howsoever from withholding and not paying into the Federation Account all the revenue collected by the Government of the Federal Republic of Nigeria from any source whatsoever.

19.     An order of injunction restraining the Federal Government of Nigeria whether by its officers, servants and functionaries whomsoever and howsoever from breaching the provisions of Section 162 of the Constitution of the Federal Republic of Nigeria, 1999."

A 13-paragraph Statement of Defence was filed on behalf of the defendant, thus joining issues with the plaintiff, as follows:-

"Save and except as is hereinafter specifically admitted, the Honourable Attorney-General of the Federation and Minister of Justice (hereinafter referred to as the defendant) denies each and every allegation of fact contained in the plaintiff's Statement of Claim as if same were specifically set out and traversed seriatim:-

1.      The defendant admits paragraphs 1, 2 and 3 of the plaintiff's Statement of Claim.

2.      The defendant admits paragraph 4 of the Statement of Claim only to the extent that the President shall table before the National Assembly proposals for revenue allocation, upon receipt of advice from the Revenue Mobilisation, Allocation and Fiscal Commission.

3.      The defendant admits paragraph 5 of the Statement of Claim.

4.      The defendant admits paragraph 6 of the Statement of Claim only to the extent that the Federation Account Allocation Committee meets monthly to ensure that allocation made to the States from the Federation Account are promptly and fully paid into the Treasury of each State on the basis and terms prescribed by the Allocation of Revenue (Federation Account etc.) Act, as amended, and the 1999 Constitution.

5.      The defendant in further rebuttal of the averments in paragraph 6 (i-v) of the Statement of Claim state as follows:-

(i) That any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.

(ii) The distribution of any amount standing to the credit of the Federation Account is subject to the prescription of the terms and manner of such distribution by the National Assembly, and the latter has not prescribed such terms and manner.

(iii) That all debts currently being charged on the Federation Account are the debts previously charged before 29 May 1999 and which shall continue to be so charged by virtue of Section 314 of the 1999 Constitution.

6.      The defendant in response to paragraph 8 of the Statement of Claim state that the payment to the States Primary Education Board and the Education Tax Fund is in compliance with the extant statute on this subject.

7.      The defendant States in response to paragraph 9 of the Statement of Claim that the deductions made either as first line charges on the Federation Account or otherwise are not illegal and unconstitutional. This is because pending the Act of the National Assembly in this regard, the system of revenue allocation in existence shall continue to apply.

8.      The defendant avers in response to paragraphs 10 and 11 of the Statement of Claim that until the Act of the National Assembly comes into force, deductions or disbursements from the Federation Account under the existing distribution system put in place pursuant to the existing laws continue to be in force constitutionally by virtue of Sections 313, 314 and 315(4)(b) of the 1999 Constitution.

9.      The defendant denies paragraph 12 of the Statement of Claim and state that in so far as the National Assembly has not made any prescription as to the allocation and distribution of the amount standing to the credit of the Federation Account, the existing laws continue to be in force.

10.     The defendant denies paragraph 12 of the Statement of Claim and state that the retention by the Federal Government since June 1999 Constitution which provides that the National Assembly in exercise of its powers, shall prescribe the manner for the distribution of such funds; and that the National Assembly has not made any Act specifying the manner for distribution of such funds described herein.

11.     The defendant denies paragraph 14 of the Statement of Claim and state that the claim for account in this suit is wrongful as the plaintiff's Commissioner of Finance is a member of the Federation Account Allocation Committee, which was established pursuant to Section 5(1) of the Allocation of Revenue Account etc. Act Cap. 16 LFN 1990. By virtue of Section 2 of the Revenue Allocation and Fiscal Commission Act Cap. 392 LFN 1990, the plaintiff is also represented in the composition of the Revenue Mobilisation Allocation and Fiscal Commission and there is no allegation that the said Commission failed or refused to supply to the plaintiff the Statement of Federation Account on request.

 

12.     In response to paragraph 15 of the Statement of Claim, the defendant shall contend at the hearing of this suit:-

(a)     that pursuant to Section 162(9) of the 1999 Constitution, any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of Courts established for the Federation States under Section 6 of the Constitution.

(b)     That the payment of 1 percent of the proceeds from the Federation Account to the Federal Capital is lawful by virtue of the provisions of Allocation of Revenue (Federal Account etc.) Act Cap. 16 LFN 1990. The said 1 percent deduction is accordingly not unconstitutional by virtue of Sections 313 and 315(4)(b) of the 1999 Constitution.

(c)     That Section 162(5) of the 1999 Constitution provides that the amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the States for the benefits of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.

 

13.     Whereof the defendant prays the court to hold that:-

(a)     Until the relevant Act of the National Assembly for the distribution from the Federation Account comes into force, any claim for shares of the Federation Account under Section 162 of the 1999 Constitution as being claimed by the plaintiff in this suit is incompetent before this Honourable Court.

(b)     Until the said Act of the National Assembly comes into force, deduction for priority projects, first line charges, service for external debts, 1 percent deduction for the service of the Federal Capital Territory, etc. under the existing distribution system put in place pursuant to the existing laws continue to be in force constitutionally by virtue of Sections 313, 314 and 315(4)(b) of the Constitution of the Federal Republic of Nigeria, 1999."

After pleadings were delivered by the Plaintiffs to these consolidated suits namely, Ogun, Lagos, Oyo Ondo and Osun States, each of them went ahead to file and exchange briefs and in some other affidavit evidence verifying their cases with the defendant. I wish first of all to consider the case of the Attorney-General of Lagos State whose case is more comprehensive in presentation and outlay. I shall hereafter consider the cases of Ogun, Oyo, Ondo, and Osun States in order of sequence. The lone issue submitted as arising for our determination in the Lagos State case:-

The issues for determination especially turn on the questions whether or not the provisions of Section 162, in particular and other relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 have been breached in the circumstances by the defendant and whether the plaintiff is not entitled to the reliefs sought in the event of such breach or violation being established.

On 16 September 2002, when the hearing of this case took place, Honourable Attorney-General of Lagos State, Mr Yemi Osinbajo, SAN after adopting his brief dated 18 March, 2002 and filed the same day, expatiated and relied thereon. On Reliefs (I), (II) and (III), it was submitted that Section 162(3) clearly stipulates that any amount in the Federation Account shall be distributed among the Federal, State and Local Governments on such terms and in such manner as may be prescribed by the National Assembly. It is next contended that such amount cannot properly or constitutionally be distributed in favour of any other party/fund.

Secondly, it was submitted that the provisions of any law of the National Assembly, which require that the distribution of the amount in the Federation Account be made among any parties other than the Federal Government, State Government and Local Government Councils, will be inconsistent with Section 162(3) and are therefore invalid, null and void.

Thirdly, that to include other parties in the distribution of the said amount will effectively deprive the plaintiff of its appropriate share in the amount in the Federation Account.

Fourthly, it is contended, that in its Statement of Defence the defendant admittedly made as a first line charge on the Federation Account, which the plaintiff complains about in paragraphs 6, 9, 10 and 11 of its Statement of Claim, are consistent with the provisions of the Allocation of Revenue (Federation Account etc.) Act, Cap. 16, Laws of the Federal Republic of Nigeria, 1990 as amended by The Revenue Act and the 1999 Constitution and that the action of the Federal Government and its agents in the circumstance, is not illegal or unconstitutional. The learned Attorney-General from the foregoing, first argued that the Revenue Act makes no provisions for deducting any sums as a first line charge or on the Federation Account. Indeed, he contended, the relevant provisions of the Act, i.e. Section 1, provides as follows:-

"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 shall be distributed by the Federal Republic of Nigeria among the various Governments in Nigeria and the funds concerned on the following basis, that is to say:"

(a)     the Federal Government  48.5 percent

(b)     the State Governments  24 percent

(c)     the Local Governments  20 percent

(d)     Special Funds 7.5 percent

 

(i)    Federal Capital Territory 1 percent of the Federation Account

 

areas

3 percent of the Revenue

(ii)    Development of Minerals Producing accruing to the Federation derived from Minerals - 2 percent of the Federation Accounts;

(iii)    General ecological problems - 1 percent & of the revenue accruing to the Federation Account derived from minerals;

(iv)     Derivation - 0.5 percent of the Federation account, plus the revenue arising out of using mineral revenue, instead of the

(v)     Stabilisation Account                             Federation Account, as the base for allocation to the fund for development of the mineral producing areas and derivation." (My emphasis.)

Consequently, the learned Attorney-General argued, such deductions do not, in the first place, have any basis or support in any Act of the National Assembly and is illegal. Secondly, the 1999 Constitution itself does not provide for any deduction as a first line charge or on the Federation Account while the act of deduction, he argued, is inconsistent with the provision of the Constitution. Indeed, he contended, Section 163(3) of the Constitution stipulates how the amount in the Federation Account shall be distributed. This, he pointed out, demonstrated how unilateral the Federal Government of Nigeria was. The Constitution, he argued, expressly mentioned those to have a share in the money in the Federation Account. The word "shall" used by the section, it is contended, makes it mandatory that the money be distributed amongst the parties mentioned only. The defendant, it is further submitted, purportedly relied on Sections 313, 314 and 315(4) of the Constitution to contend that:-

"Until the Act of the National Assembly comes into force deductions or disbursements from the Federation Account under the existing distribution system put in place pursuant to the existing laws continue to be in force constitutionally. . ." See paragraph 8 of the Statement of Defence).

Section 313 of the Constitution of the Federal Republic of Nigeria, 1999 on the other hand, it is asserted, provides as follows:-

"Pending any Act of the National Assembly for the provision of a system of revenue allocation between the Federation and the States, among the States, between the States, the system of revenue allocation in existence for the financial year beginning from 1 January 1998 and ending on 31 December 1998 shall, subject to the provisions of this Constitution and as from the date when this section comes into force, continue to apply:-

Provided that where functions have been transferred under this Constitution from the Government of the Federation to the States and from the States to the Local Government Councils the appropriations in respect of such functions shall also be transferred to the States and the Local Government Councils, as the case may require."

Clearly therefore, it is further argued, the application with effect from 29 May 1999 of the system of revenue allocation in existence between 1 January 1998 and 31 December 1998 under the Constitution, is subject to the provisions of the 1999 Constitution. The case of Labiyi v Anretiola (1992) 8 NWLR (Part 158) 139 at 164 A-B wherein this Court (per Karibi-Whyte, JSC) stated the true meaning of the expression "subject to" to be as follows:-

"In other words, where the expression is used at the commencement of a statute as in Section 1(2) of Decree No 1 of 1984, it implies that what the subsection is 'subject to' shall govern, control and prevail over what follows in that section or subsection of the enactment. See also Tukur v Government of Gongola State (1989) 2 NWLR (Part 117) 517 at 529" which was called in aid.

It is next submitted that the existing law under which the existing system of revenue allocation was put in force and effect, as rightly contended by the defendants in paragraph 8 of their defence, is the Allocation of Revenue (Federation Account, etc. Act) Cap. 16, Laws of the Federal Republic of Nigeria, 1990 as amended by Decree 106 of 1992 (supra). The effective application and use of that system from 29 May 1999 under Section 313, to the provisions of Section 162(3) of the same Constitution which requires that the distributions of any amount in the Federation Account, on the terms and in the manner prescribed by the National Assembly, shall be amongst the Federal, State and Local Governments. No other body, fund or institution, it is argued, is contemplated as a recipient or beneficiary of the amount in the Federation Account; the division being amongst three parties only. Consequently, it is next contended, any system of Revenue Allocation whereby the amount in the Federation Account is distributed from time to time amongst other bodies or persons apart from or outside of the Federal, State and Local Governments, will be unconstitutional. The argument that such distribution is being applied pursuant to the provisions of the Revenue Act, it is further maintained, is of no moment as the said provisions are inconsistent with the provisions of Section 162(3) as earlier demonstrated. If the system of revenue allocation for 1 January 1988 to 31 December 1988 provides for distribution of money direct from the Federation Account to other Funds or groups, that will only continue to apply subject to the provisions of the 1999 Constitution i.e. in so far as it is inconsistent with any of the provisions of the Constitution. In the instant case, learned Attorney-General asserted that such application would be clearly inconsistent with Section 162(3) and therefore, prohibited by Section 313. Any continuance of such distribution from 29 May 1999, he added, would therefore be consistent with the provisions of the Constitution whether such system is provided by any Act or not. Thus, clearly it is argued, Section 1 (d) (i-v) of the Allocation of Revenue (Federation Account, etc.) of 1990 as amended which is existing law under Section 315 is inconsistent with Section 162(3) among the beneficiaries of the distribution of the amount in the Federation Account. The Supreme Court, it is pointed out, has effectively decided on the proper way to approach the subject of the inconsistencies of any law with the provisions of the Constitution. In the very recent case Ikine v Edjerode (2001) 18 NWLR (Part 745) 466, it is stressed, the court held that if any existing laws or any of their provisions are inconsistent as from 1 October 1979 with the 1979 Constitution, such laws or any of their provisions whether or not pronounced upon by the court as being inconsistent with the said Constitution, are impliedly repealed or modified to conform with its provisions.

After we were referred to the dictum of Ejiwunmi, JSC in the latter case reference was also made to the Uwaifo v A-G, Bendel State (1982) 7 SC 124 where Idigbe, JSC succinctly stated the law thus:-

"It is important to note that the preclusion or prohibition is limited and confined to existing laws. It therefore becomes abundantly clear that if such laws or any of their provisions are inconsistent as from 1 October 1979 Constitution, such laws or any of their provisions whether or not pronounced upon by the courts as being inconsistent with the said Constitution, are impliedly repealed or modified to conform with its provisions. Likewise, all things done or purported to be done under such impliedly repealed or modified laws after 1 October 1979, are equally of no effect. . ." (My emphasis.)

Section 274 of the 1979 Constitution which was the subject of interpretation in lkine and Uwaifo cases (supra), it was argued, is in pari materia with Section 315 of the present 1999 Constitution upon which the defendant relies, adding that the same construction and interpretation must a fortiori be given to Section 315 of the Constitution. The case of Okon & others v The State (1988) 1 NSCC 156 at 161 was called in aid thereof.

Nnaemeka-Agu, JSC in stating the law on the subject in that case, it is pointed out, held as follows:-

"With respect, I think that the principles on which a previous legislation have been relevant to the interpretation of a later statute is fairly well settled. A previous legislation may be relevant to the interpretation of a later legislation in two ways:-

"First, the course which legislation on a particular point has followed often provides an indication as to how the present statute should be interpreted. It is in such cases presumed that the interpretation in the former must have been known to those who drafted the later. Hence in the case of Armah v Government of Ghana [1968] AC 192 it was applied by the House of Lords, per Reid at page 226 et seq. See also Minister of Housing and Local Government v Hertnell [1965] AC 1134. I believe that common sense dictates that courts should as far as possible encourage uniformity of meaning of particular words or expressions unless it appears from the wordings of a particular statute under construction that the legislator intended to vary the meaning.

Secondly, it is accepted that the light may be thrown on the meaning of a phrase or a word in a statute under construction by reference to a similar phrase or word in an earlier statute dealing with the same or cognate subject matter. See Registrar of Restrictive Trading Agreements v W.H. Smith & Sons Ltd (1968) 1 WLR 1541."

It is therefore submitted that all actions of the defendant pursuant to the said provisions are unconstitutional, null and void and of no effect whatsoever. Moreover, it is contended, under Section 315(3) of the Constitution, the Supreme Court as any other court is constitutionally empowered to declare those provisions invalid as being inconsistent with the provisions of the Constitution.

The learned Attorney submitted that consequently, the distribution made from the Federation Account pursuant to the said provisions of the Revenue Act or at all are therefore unconstitutional, null and void and we are respectfully invited to so hold.

 

Relief IV

In respect of this relief, the learned Attorney-General submitted that Section 81(3) of the Constitution of the Federal Republic of Nigeria provides as follows:-

"Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judiciary Council for disbursement to the heads of the courts established for the Federation and the States under Section 6 of the Constitution."

The learned Attorney-General next submitted how the Consolidated Revenue Fund (CRF) itself is constituted under Section 80(1) which requires that all revenue received by the Federation i.e. the Federal Government of Nigeria (except such moneys as are payable under the Constitution or any valid Act of the National Assembly into any other public fund) shall be paid into and form one consolidated fund for the Federation. He further submitted that it is where the expenditure for the judiciary has been authorised by law under Section 80(2) of the Constitution as charged upon the Consolidated Revenue Fund that the authorised amount can be said to be standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation under Section 81(3) of the Constitution. That amount, he pointed our, is then required to be paid directly to the National Judicial Council for disbursement to the heads of the courts for payment of salaries of Judicial officers and other requisite payments to maintain the Judiciary.

It is further submitted that this will in the light of Section 162(1)(10) of the Constitution, which defines the revenue to be paid into the Federation Account, be limited to:-

(a)     Those exempted under Section 162(2);

(b)     All those moneys due to the Federation (i.e.) the Federal Government of Nigeria under Section 162(3) of the Constitution.

As regards the provisions of Section 162(9) of the Constitution, the learned Attorney submitted that although that section stipulates that "any amount standing to the credit of the Federation Account shall be paid directly to the National Judicial Council. . ." in so far as the Judiciary is not a beneficiary of the Federation Account and Section 81(3) has already dealt with the subject matter it is difficult to give any sensible meaning to that provision. We were urged therefore to discountenance it. The case of the Board of Customs and Excise v Barau (1982) 10 SC 98 at page 190 per Idigbe, JSC quoting with approval and adopting Maxwell on Interpretation of Statutes (11ed), page 228 that:-

"Notwithstanding the general rule that effect must be given to a word or phrase or if it would defeat the real object of the enactment, it may or rather it should be eliminated. The words of a statute must be construed so as to give a sensible meaning to them if possible."

For this reason, it is submitted that it is clearly not permissible and indeed unconstitutional to deduct and pay any money or fund to the National Judicial Council directly from the Federation Account for the payment of salaries of judicial officers as the defendant presently admittedly does.

It is therefore the plaintiff's submission that a careful and painstaking reading and construction of Sections 80, 81(3) and 162 of the Constitution will show that the payment of salaries of judicial officers which is effected through the National Judicial Council is not a charge on the Federation Account. Indeed, it is further asserted, it can only be a charge on the Consolidated Revenue Fund of the Federal Government of Nigeria within the meaning and intendment of the aforesaid provisions.

 

Reliefs (V) and (VI)

Section 162(1) it is contended, provides that the Federal Government shall pay into the Federation Account all revenues collected by it. What constitutes "Revenue" is defined in Section 162(10) as meaning:-

"Any income or return accruing to or derived by the Government of the Federation from any source and includes:-

(a)     any receipt, however described, arising from the operation of any law;

(b)     any return, however described arising from or in respect of any property held by the Government of the Federation;

(c)     any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body."

Proceeds from Stamp Duties and Capital Gains Tax, it is further maintained, arise from the operation of Stamp Duties Act Cap. 411 and Capital Gains Tax Act Cap.42 and therefore come within Section 162(10)(a) (ibid). Income accruing to or derived by the Federal Government from any other source, it is asserted, is covered by Section 162(10) and (10)(c). None of the above proceeds, it is further maintained, falls under the exceptions in Section 162(1). It follows therefore, it is argued, that Federal Government is obliged to pay such proceeds into the Federation Account. Section 162(1), it is stressed, uses the word "shall" thereby making it mandatory to have such proceeds paid into the Federation Account. Failure to lodge the proceeds as required, it is maintained, is in conflict with the provisions of Section 162(1) of Constitution and is therefore unconstitutional. This must be so, it is stressed, because notwithstanding Section 163(b) which provides that where an Act of the National Assembly imposes Capital gains tax or stamp duty, the net proceeds of such tax or duties shall be distributed among the states on the basis of derivation; and that accordingly; where such tax or duty is collected by the Government of the Federation or other authority of the Federation, there shall be paid to such States at such times as the National Assembly may prescribe a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that State. Although Section 163(b) provides for the allocation of capital gains tax and stamp duties by the Federal Government, it is argued, it does not provide how the proceeds are kept pending their distribution. It is therefore submitted that the same constitutes revenue collected by the Federal Government, which must be paid into the Federation Account within the proper meaning and intendment of Section 162(1) and (10) of the Constitution. Section 162(3), it is added, provides that the money in the Federation Account shall be distributed to the Federal and State Governments and the Local Government Councils in such State "on such terms and in such manner as may be prescribed by the National Assembly."

It is the submission of learned Attorney-General in addition, that the effect of these provisions properly interpreted and construed, is that when such proceeds are paid into the Federation Account, the amount accruing to the Federation Account shall be distributed "on such terms as may be prescribed by the National Assembly. The effect of all these provisions properly interpreted and construed, it is emphasised, is that when such proceeds are paid into the Federation Account, the amount accruing to the Federation Account directly from such proceeds, must be reflected in the allocation formula to be prescribed by the National Assembly in the same way as the amount accruing directly from natural resources are to be reflected and taken into account for the benefit of the States producing the natural resources.

In his oral submission, the learned Attorney General urged that all moneys paid into Federal Government coffers called Federation Account since June 1999 and any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments as well as the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly vide Section 162(3) of the Constitution. Further, any amount standing to the credit of the States in the Federation Account, shall be distributed among the States on such terms and such manner as may be prescribed by the National Assembly vide Section 162(4) of the Constitution. That 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 such manner as may be prescribed by the National Assembly vide Section 162(5) of the Constitution. Thus, while not conceding all of claim (5), we are urged to allow the plaintiffs' action to succeed.

 

Relief (VII) and (VIII)

Section 162(2) of the 1999 Constitution provides that 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. It is not in dispute that the defendant maintains such an account. This Act is supplemented by:-

(i) Revenue Act of 1982 (Cap. 16 as amended).

(ii) The Revenue Mobilisation, Allocation and Fiscal Commission Act No 98 of 1993.

The two Acts above are still in force as duly upheld by Section 313 of the 1999 Constitution which provides that:-

"Pending any Act of the National Assembly for the provision of a system of revenue allocation between the Federation and the States and Local Government Councils and among the Local Government Councils in the States, the system of revenue allocation in existence for the financial year beginning from 1 January 1998 shall, subject to the provisions of this Constitution and as from the date when this section comes into force continue to apply."

Section 5(2) of Act No 106 of 1992 provides that each State should pay into its State Joint Local Government Account 10percent of its internally generated revenue to be distributed among the Local Government Councils in the State on such terms and in such manners as the State House of Assembly may prescribe.

The defendant's defence for paying the money directly or in any other manner to the Local Government Councils is that the National Assembly has not made any new prescription as to the allocation and distribution of the amount standing to the credit of the Federation Account, and therefore the existing distribution system should continue in the interim under the existing law. This, in my opinion, cannot be faulted in view of this Court's decision in A-G, Federation v A-G, Abia & 35 others (No 2) (supra). See per Uwais, CJN at page 760.

Section 1(c) of Act No 16 (supra), it is contended, provides that the Local Government Council shall be allocated and is entitled to 10percent of any amount in the Federation Account.

Section 3 of the Act (ibid), it is pointed out, provides that:-

"3.     For the allocation from the Federation Account among the Local Government the same factors and weights as those used for sharing revenue from the Federation Account among the States shall apply."

The learned Attorney-General thereafter argued that neither Section 1(a) nor 3 of the Act nor any other provisions of the Act can be interpreted to mean that the Federal Government is empowered to distribute as it presently does the amount standing to the credit of the Local Government Councils. Indeed, it is argued, Section 3 talks about allocation not distribution. There is a clear distinction between them, adding that they are not interchangeable since allocation is made before distribution. That exercise of jurisdiction, it is further stated, is clearly the prerogative of the States as prescribed by the law of the State House of Assembly in accordance with Section 162(8) of the Constitution. Section 3 properly construed, it is argued, deals only with the manner of allocation of the amount standing to the credit of the Local Government Councils in the Federation Account amongst the Local Government Councils. However, the use of the expression, "amongst the Local Government Councils in Section 3 of the Revenue Act, it is maintained, appears to suggest that the Federal Government is empowered to make the allocation directly in favour of the Local Government Councils. It is therefore submitted that the provisions of Section 3 in so far as it purports to regulate the allocation of any amount standing to the credit of the Local Governments in the Federation Account directly to the Local Government Councils is inconsistent with Section 162(5) of the Constitution and it is void and unconstitutional. The National Assembly, it then contended, cannot validly make a law permitting direct allocation to the Local Government Councils, adding that such money must be allocated direct to the States, which shall in turn pay the same into the "State Joint Local Government Account" vide Section 162(6). Moreover, it is argued, Section 6(1) of Act No 16 of 1982, which provides for the establishment of a Joint Local Government Account Allocation Committee (JLGAAC for short) for each State, is clearly inconsistent with Section 162(8) of the Constitution in so far as it seeks to regulate the manner the amount allocated to the State for the benefit of the Local Governments in that State is to be distributed. I cannot agree more.

 

Relief (IX)

On Stabilisation Account, it is submitted that there is clearly no constitutional warrant for creation of such Account as a charge on the Federation Account. This is because whatever Account the Federal Government wishes to keep, plaintiff argued, can only be lawfully operated with funds emanating from her own share of the amount in the Federation Account subsequent to the distribution among the 3 tiers of Government. To do otherwise as is presently being done, it is argued, is contrary to Section 162(3) of the Constitution. Clearly, as has been argued, the provisions of the law i.e. Revenue Act (Cap. 16) (ibid) supporting the creation and maintenance of a Stabilisation Account, is unconstitutional. Here again, this argument is flawless and is incontrovertible.

 

Relief (X)

After the learned Attorney-General had observed that it is not disputed that the Federal Government makes deductions from the Federation Account to service her foreign/external debts, the defence, he pointed out, is that such debts were charged on the Federation Account between 28 May 1999 and would continue to be so charged by virtue of Section 314 of the Constitution. Section 314 (ibid), it is maintained, provides that any debt of the Federation or of a State which immediately before the date when the section comes into force was charged on the revenue and assets of the Federation or a State, shall as from the date when the section comes into force, continue to be so charged, it is maintained.

The money in the Federation Account, it is submitted, belongs to the three tiers of Government and cannot be properly described as the money of the Federal Government. The Federal Government Revenue, it is therefore contended, is her share out of the Federation Account from which she is obliged to pay her debts. There can be no basis, it is argued, for saddling the other tiers of Government with the responsibility for sharing in the payment of the debts incurred by the Federal Government and Section 314 cannot be so interpreted. It follows, it is finally submitted, that the charging of the Federal Government debts on the Federation Account as opposed to the Federal Government Revenue, is in conflict with Section 162(3) and (9) of the Constitution and is unconstitutional. The argument herein cannot, in my opinion, be faulted also.

 

Relief (XI)

The clear postulation of Section 163(3) of the Constitution, argued the plaintiff is that any amount in the Federation Account shall be distributed among the Federal, State and Local Governments on such terms and in such manner as may be prescribed by the National Assembly. Such amount it is pointed out, cannot properly or constitutionally be distributed in favour of any other party or fund. It will clearly be unconstitutional, it is asserted, for the National Assembly to make any provisions for any distribution of any amount in the Federation Account in favour of any other party or fund. It will, it is observed, constitute a deprivation of the right of the plaintiffs to their appropriate share in the Federation Account. The defence put forward by the defendant in its Statement of Defence that the deductions made as a first line charge on the Federation Account which the plaintiff complains about in paragraphs 6, 9, 10 and 11 of its Statement of Claim, it is maintained, is consistent with the provisions of the Allocation of Revenue (Federation Account, etc) Act, Cap. 16, Laws of the Federal Republic of Nigeria, 1990 as amended and the 1999 Constitution and that the action of the Federal Government and its agents in the circumstance is neither illegal nor unconstitutional. Consequently, the learned Attorney-General submitted, Section 1(d)(i-v) of Act No 16 of 1990 as amended, which is an existing law under Section 315 of the 1999 Constitution, is inconsistent with Section 162(3) of the Constitution in so far as it makes provision for distribution of money in the Federation Account amongst those bodies/institutions not cognisable by that section.

 

 

 

Relief (XII)

Under this relief the submission is that there is no warrant for the National Assembly to make any provisions for the creation or maintenance of a State Joint Local Government Account (SJLGA). The responsibility, it is contended, is clearly that of the State House of Assembly under Section 4(7) of the Constitution, being a mater in respect of which the Constitution has impliedly, if not expressly empowered the State to make laws. The point, it is stressed, is clearly re-enforced by the provisions of Section 162(8) of the Constitution which states:-

"the amount standing to the credit of 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."

The plaintiff therefore submitted that it is clear that Sections 3 and 6(1), (2) and (3) of the Revenue Act are inconsistent with Sections 162(5),(6) and (8) of the Constitution and is to that extent, invalid, null and void. As I shall seek to show hereafter there is merit in this argument.

 

Reliefs (XIII) and (XIV)

The plaintiff, it is submitted, is asking for an account while the defence is that there is no allegation that the plaintiff ever requested for a Statement of Federation Account and it was refused. The issue as contended on plaintiff's behalf is not a statement of Federation Account but a full account of how the money in the Federation Account which ought to have been paid into the Federation Account is being utilised or applied or disbursed. This, as can be seen, is quite different from an ordinary statement of account, it is argued. Should this Court hold that the plaintiff is entitled to a share in the Federation Account and has established that the account has not been constitutionally managed by the defendant then, it will be entitled to an account and the money properly standing to its credit. When Claim XIV was being argued, it was abandoned. There the matter ended and rightly so.

 

Reliefs (XV), (XVI), (XVIII) and (XIX)

The plaintiff finally submits that the injunctive reliefs sought necessarily follow from the declaration sought in this suit. Thus, once the court is satisfied that the plaintiff is entitled to the declarations sought, it must follow that he will be entitled as of right to the injunctions sought. The plaintiff in conclusion urged us to grant all the reliefs sought because of the reasons articulated herein. The argument proffered here, to my mind, is non sequitur.

I will now consider the reliefs (claims) made out in the respective plaintiffs' amended Statements of Claim and/or briefs vis-à-vis the defence to see whether or not they deserve to be sustained or refused in the light of the reliefs (claims) earlier considered in the case decided by this Court and now reported as A-G, Federation v A-G, Abia State & 35 others (No 2) [2002] 6 NWLR (Part 764) 542. In this wise, I wish to commence with Lagos State again but, this time from its penultimate paragraph 18 of the amended Statement of Claim, which after due consideration I have arrived at the irresistible conclusion that of the nineteen claims (reliefs) therein, the following need to be examined and answers proffered thereon by me to wit:-

Claims 5, 7, 12, 14 15 and 18 respectively.

 

Claim 5

This claim avers as follows:-

"A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162(i) and (iv) of the Constitution of the Federal Republic of Nigeria 1999 to pay into the Federation Account all the proceeds and income, save those exempted under Section 162(1), accruing from the privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source." (My emphasis.)

"Revenue" is defined in Section 62(10) of the 1999 Constitution as follows:-

"For purposes of subsection (1) of this section "revenue" means any income or return accruing to or derived by the Government of the Federation from any source and includes:-

(a)     any receipt, however described, arising from the operation of any law;

(b)     any return, however described arising from or in respect of any property held by the Government of the Federation;

(c)     any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body."

Section 163 of the 1999 Constitution takes care of what the plaintiff here is asking for. That section (163 (ibid)) stipulates:-

"Where under an Act of the National Assembly, tax or duty is imposed in respect of any of the matters specified in Item D of Part II of the Second Schedule to this Constitution, the net proceeds of such tax or duty shall be distributed among the States on the basis of derivation and accordingly:-

(a)     where such tax or duty is collected by the Government of the State, the net proceeds shall be treated as part of the Consolidated Revenue Fund of that State;

(b)     where such tax or duty is collected by the Government of the Federation or other authority of the Federation, there shall be paid to each State at such times as the National Assembly may prescribe a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that State."

 

Accordingly, Claim 5 cannot be granted for two reasons:-

(i) There is no claim like Section 162(i) and 162(iv) but rather Section 162(1) and 162(4) respectively of the 1999 Constitution.

(ii) The National Assembly is yet to pass a law (an Act of the National Assembly) pending which the provisions of Section 313 of the Constitution will hold.

 

 

Claim 7

Under Claim 7 the plaintiff asks for:-

"A declaration that the defendant is not entitled within the proper meaning of Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria 1999 to pay the amount standing to the credit of the Local Government Councils in the Federation Account directly to the Local Government Councils and that such payments by the defendant is illegal and unconstitutional."

The claim being straightforward, factual and unequivocal should, in my opinion, be granted. Accordingly, I hereby grant it.

 

Claim 12

Under this claim the plaintiff pleaded thus:-

"A declaration that Section 3, Section 6(1), (2) and (3) of the Allocation of Revenue (Federation Account etc.) Act Cap. 16, Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1976 are inconsistent with Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 and are invalid, unconstitutional, null and void and of no effect."

As Section 162(5), (6) and (8) of the Constitution apply, there is an inconsistency. That being so, the relief is allowable and I accordingly grant it.

 

Claim 14

This claim is covered by an averment for:-

"An order directing the Federal Government of Nigeria to pay the plaintiff all sums properly found due and unpaid to the plaintiff in respect of its share from the Federation Account on the proper and lawful distribution amongst the States of the appropriate and true amount standing to the credit of States in the Federation Account on the taking of such account."

This claim was abandoned during argument in court. Accordingly, I strike it out and it is struck out.

 

Claim 15

In this claim the plaintiff pleaded for:

"An Order of Injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officers whomsoever and howsoever from keeping and/or maintaining or sustaining any other Account save the Federation Account for the purpose of receiving all revenue as defined by Section 162(10) of the Constitution collected by the Government of the Federation."

As this claim is not founded on any of the declarations sought; also as there are no facts or materials in support thereof in the light of the grant of Claims 7 and 12, this claim must be and is accordingly refused.

 

Claim 18

This claim asking for some injunctive reliefs having been abandoned is accordingly struck out.

 

Ogun State

The plaintiff here commenced this action (along with the others whose cases were consolidated in this suit) against the defendant by a Writ of Summons and a Statement of Claim both dated 21 May 2001. Standing out glaringly for our consideration are Claims (iv), (xi), (x), (xii) and (xiv).

 

Claim (iv)

The claim here as couched reads:-

"A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Ogun Sate from the Federation Account and pay same directly to the Local Government councils rather than into the State Joint Local Government Account."

 

Comment:-

As this claim is well grounded with firm roots, it is accordingly granted as in the case of Lagos.

 

Claim (x)

The declaration sought states:-

"A declaration that it is unconstitutional and illegal for the defendant to withhold proceeds from privatisation of Federal Government Agencies, Stamp Duties, Capital Gains Tax and all other income accruing to or derived by the Government of the Federation from any other source."

 

Comment:-

As no Act of the National Assembly has yet been passed to take care of this claim, it is my view that it must be refused. It is accordingly refused by me.

 

Claim (xi)

Under this claim the plaintiff asks for:-

"A declaration that it is illegal and unconstitutional for the defendant to maintain and keep any other account for the purpose of receiving revenue collected by the Federation other than as prescribed by Section 162(1) of the Constitution."

 

Comment:-

As this claim is clearly against the provisions of Section 163 of the Constitution it cannot certainly be granted.

 

Claim (xii)

Under this claim the plaintiff asks for:-

"An Order of Perpetual Injunction restraining the defendant by itself, agents, officers or privies from repeating or further committing such or similar unconstitutional acts in violation of any of the provisions of Section 162 of the Constitution."

 

Comment:-

This order as sought is, in my opinion, vague, too wide and cannot be granted. It is therefore accordingly refused.

 

Claim (xiv)

 

The claim as made out here is for:-

"A further order compelling the defendant to pay to the plaintiff its legitimate and correct share of the Federation Account less all monies already paid to the plaintiff from the said account, within the period 29 May 1999 till the date of judgment in this suit."

 

Comment:-

The order sought here is glaringly vague and cannot, with due respect, be made. An order should not be made in vacuo. See J.S. Olawoyin v A-G, Northern Region (1961) 1 All NLR (Part 2) 269 at 271, 276. It is therefore accordingly refused.

Oyo State

Invoking the original jurisdiction of the Supreme Court under Section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff commenced this action by a Writ of Summons dated 8 August 2001 under the hand of the Honourable Attorney-General of Oyo State, Mr A.A. Lawal.

On 24 October 2001 an affidavit of 26 paragraphs was filed in support of the plaintiff's claim. The plaintiff, in addition filed in support of his claim a brief of argument dated 5 February 2002 and filed on 8 February 2002. Furthermore, plaintiff submitted and attached as document called "Wrongful Deductions from Federation Account June 1999-July 2001 (marked Exhibit 'A');" otherwise called FGN External Creditors amounting to billions of Naira.

 

Claims

In plaintiff's penultimate paragraph 17, five reliefs claimed therein, need be considered here namely, Reliefs 2, 3, 4, 5 and 10.

 

Claim 2

As this claim wherein the plaintiff asks for a declaration that it is unlawful, illegal and unconstitutional for the defendant to maintain or keep any other account apart from the Federation Account etc. was abandoned, it is accordingly struck out.

 

Claim 3

As under this claim it is argued that it is unconstitutional and illegal for the defendant to deduct funds from the Federation Account and pay same over to Local Government Councils etc. and moreover, since I had granted to some of the other plaintiffs a similar relief in this consolidated suit, the present claim succeeds.

 

Comment:-

The claim is accordingly granted.

 

Claims 4 and 5

As these claims were abandoned, they are accordingly struck out. See the case of A-G, Federation v A-G, Abia State & 35 others (supra).

 

Claim 10

I will not grant this claim in as much as it is similar to Claim 5 of the Lagos State case (supra) and which we earlier considered and refused.

 

Ondo State

Of the fifteen reliefs sought by the plaintiff, Chief Dele Ogedengbe, Hon. Attorney-General for Ondo State, sequel to his paragraph 10 of the Statement of Claim we need only to consider Claims (iv), (xi), (xii) and (xiii) thereof as hereunder set out thus:-

 

Claim (iv)

Under this claim the plaintiff is asking for:-

"A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Ondo State from the Federation Account and to pay same directly to the Local Government Councils rather than into the State Joint Local Government Account."

 

Comment:-

I am of the opinion that this claim is in order and ought therefore to be granted as in the case of Lagos State (supra).

 

Claim (xi)

For this head of claim, the plaintiff asks for:-

"A declaration that it is illegal and unconstitutional for the defendant to maintain and keep any other account for the purpose of receiving revenue collected by the Federation other than as prescribed by Section 162(1) of the Constitution."

 

Comment:-

I am of the view that this claim ought not to be granted. This is because it overlooks other provisions of Section 162(1) of the Constitution which, for purposes of emphasis, provides thus:-

"(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 Foreign Affairs and the residents of the Federal Capital Territory, Abuja."

 

Further, the claim ignores Section 163 of the Constitution which provides:-

"Where under an Act of the National Assembly, tax or duty is imposed in respect of any of the matters specified in Item D of Part II of the Second Schedule to this Constitution, the net proceeds of such tax or duty shall be distributed among the States on the basis of derivation and accordingly:-

(a)     Where such tax on duty is collected by the Government of a State or other authority of the State, the net proceeds shall be treated as part of the Consolidated Revenue Fund of that State;

(b)     Where such tax or duty is collected by the Government of the Federation or other authority of the Federation, there shall be paid to each State at such times as the National Assembly may prescribe a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that State."

 

Comment:-

I am of the view that this claim should not be granted. Accordingly I refuse it.

 

Claim (xii)

This claim is for an injunctive relief. It seeks for:-

"An Order of Perpetual Injunction restraining the defendant by itself (sic), agents, officers or privies from repeating or further committing such or similar unconstitutional acts in violation of any of the provisions of Section 162 of the Constitution."

 

Comment:-

I am inclined to refuse this claim which being unspecific and vague, will be impossible to supervise. Moreover, the amount involved is not specific. See the case of A-G of the Federation v A-G, Abia State & 35 others (supra)

 

Claim (xiii)

This claim asks for:-

"An order directing the defendant to render an account of all the monies received into and disbursed from the Federation Account from 29 May 1999 till the date of judgment in this suit, and furnish the plaintiff with copies of the said statement of account.

 

Comment:-

I am of the view that it being impossible to supervise, this wide and unmanageable claim ought to be and is hereby refused by me. See the case of A-G, Federation v A-G, Abia State & 35 others (No 2) (supra).

Osun State

For this suit wherein the plaintiff in the penultimate paragraph 10 of his Statement of claim asks for two reliefs worthy of consideration, I will consider them seriatim as follows:-

 

Claim (iv)

Under Claim (iv) the plaintiff asks for:-

"A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Osun State from the Federation Account and pay same directly to the Local Government Councils rather than into the State Joint Local Government Account,"

plaintiff in support of his Statement of Claim filed an affidavit of 21 paragraphs and other papers of accounts involving millions of Naira said to be owing by the defendant to him (plaintiff) and denoting statutory distribution by the Central Bank of Nigeria to Local Government Councils.

 

Comment:-

I am of the opinion here that this relief is meritorious and ought to be granted. I accordingly grant it since this claim has been established on the balance of probability. See Chief Frank Ebba v Washi Ogodo & another (1984) 1 SCNLR 372 at 379 and Omoregie v Omigie (1990) 2 NWLR (Part 130) 29 at 39.

 

Claim (x)

Under this claim, the plaintiff averred:-

"A declaration that it is unconstitutional and illegal for the defendant to withhold proceeds from privatisation of Federal Government Agencies, Stamp Duties, Capital Gains Tax and all other income accruing to or derived by the Government of the Federation from any source."

Comment:-

I am of the opinion that as there is no law under Section 162(5) and (6) that provide for this claim, it must be refused and it is accordingly refused. See Onobruchere v Esegine (1986) 1 NWLR (Part 19) 799.

 

Conclusion

It is for all I have been saying above that I arrive at the conclusion that the respective plaintiff's cases partially succeed. Reliefs 5 and 15 are refused for reasons that, in regard to Relief 5, under Section 163(b) of the Constitution, where tax or duty of the type envisaged in Item D of Part 11 of the second schedule is collected by the Government of the Federation or other authority of the Federation, the money ought not to be paid into the Federation account since once that is done, it will be subject to the distribution pattern provided in Section 162(3) of the Constitution. Whereas under Section 163(b) the money is meant to be paid to each State in due course in the proportion of which it was derived from that State. Therefore such money should be advisedly kept in an account different from the Federation Account. A declaration in the manner sought in Relief 5 overlooks the fact of Section 163(b) as for Relief 15, it cannot be granted in view of what has been said of Relief 5.

In view of the relevant provisions of the Constitution cited in Relief 7 and 12 whose meanings are clear, the declarations sought therein are hereby granted.

For the second plaintiff namely, Attorney-General of Lagos State, Claims 7 and 12 are accordingly granted. Both claims provide as follows:-

1.      "Declaration that the defendant is not entitled within the proper meaning of Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 to pay the amount standing to the credit of the Local Government Councils in the Federation Account directly to the Local Government Councils and that such payments by the defendant is illegal and unconstitutional.

2.      A declaration that Sections 6(1), (2) and (3) of the Allocation of Revenue (Federation Account) Act Cap. 16 Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1976 are inconsistent with Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 and are invalid, unconstitutional, null and void and of no effect."

For the first plaintiff namely Ogun State, the only successful claim is Claim (iv) and it is accordingly granted. For the avoidance of doubt it provides as follows:-

"(iv) A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Ogun State from the Federation Account and pay same directly to the Local Government Councils rather than into the State Joint Local Government Account."

For the third plaintiff, namely Oyo State the lone claim in which he is successful is Claim 3 which is in pari materia with second plaintiff's Claim (iv) above. For the fourth plaintiff namely, Ondo State Claim (iv) which is similar to first plaintiff's Claim (iv) and third plaintiff's Claim 3, succeeds and it is accordingly granted. See Awomuti v Salami & others (1978) 3 SC 105.

Finally, the fifth plaintiff's (Osun State's) Claim (iv) like first plaintiff's Claim (iv); third plaintiff's Claim 3 and fourth plaintiff's Claim (iv), must perforce succeed and they are accordingly granted.

Subject to the above, the rest of plaintiff's respective claims fail and are accordingly refused.

I make no order as to costs. Each party to bear his own costs

 

Uwais, CJN:- The Attorneys-General of Ogun, Lagos, Oyo, Ondo and Osun States severally brought action against the Attorney-General of the Federation. As their claims are identical and in some respects the same, we decided to consolidate the actions. This was done on 24 September 2001.

Most of the claims in this case were dealt with in an earlier case brought in this Court by the Attorney-General of the Federation against the 36 States of the Federation the plaintiffs herein inclusive. That case is A-G of the Federation v A-G of Abia State & 35 others (No 2) (2002) 6 NWLR (Part 764) 542. Most of the claims in this case are repetitions of the counterclaims set up by some of the defendants in the former case. As a result the plaintiffs herein had in the course of hearing this case abandoned some of their claims as shown in the judgment of my learned brother Onu, JSC.

I have had the opportunity of reading in draft the judgment read by my learned brother Onu, JSC. I entirely agree with it.

Of significance, are the novel claims by the second and third plaintiffs. These are Claim Nos. 5 and 10 respectively. Claim No 5 by the Attorney General of Lagos State reads:-

"5.     A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162(i) and (iv) (sic) Section 162(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 to pay into the Federation Account all the proceeds and income, save those exempted under Section 162(i) (sic) 162(1) accruing from privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source."

And Claim No 10 by the Attorney-General of Oyo State reads:-

"10. A declaration that withholding of proceeds from Stamp Duties, Capital gains tax, Federal Government privatisation programmes and any other income accruable to or derived by the Government of the Federation from being paid to the Federation Account is illegal and unconstitutional."

 

Now by the provisions of Section 162 subsection (1) of the 1999 Constitution:-

"162 (1)     The Federation shall maintain a special account to be called "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 Foreign Affairs and the residents of the Federal Capital Territory, Abuja."

 

The word "revenue" in this subsection has been defined by subsection (10) of Section 162 of the Constitution as follows:-

"162 (10) For the purposes of subsection (1) of this section, 'revenue' means any income or return accruing to or derived by the Government of the Federation from any source and includes:-

(a)     any receipt, however described, arising from the operation of any law;

(b)     any return, however described, arising from or in respect of any property held by the Government of the Federation;

(c)     any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body."

On the other hand, Section 163 of the 1999 Constitution provides:-

"163. Where under an Act of the National Assembly, tax or duty is imposed in respect of any of the matters specified in Item D of Part II of the Second Schedule to this Constitution, the net proceeds of such tax or duty shall be distributed among the States on the basis of derivation and accordingly:-

(a)     Where such tax or duty is collected by the Government of a State or other authority of the state, the net proceeds shall be treated as part of the Consolidated Revenue Fund of that State;

(b)     Where such tax or duty is collected by the Government of the Federation or other authority of the Federation, there shall be paid to each State at such times as the National Assembly may prescribe a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that State".

Item D of Part II of the Second Schedule to the Constitution consists of paragraphs 7-10 under the Concurrent Legislative List in the Constitution. (See Section 4(4) and (5) of the Constitution). Paragraph 7 thereof provides:-

"7.     In exercise of its powers to impose any tax or duty on:-

(a)     capital gains, incomes or profits of persons other than companies; and

(b)     documents or transactions by way of stamp duties, the National Assembly may, subject to such conditions as it may prescribe, provide that the collection of any tax or duty or the administration of the law imposing it shall be carried out by the Government of a State or other authority of a State."

It seems to me that the provisions of Section 162 subsections (1) and (10) of the 1999 Constitution are general in nature while those of Section 163(b) of the Constitution, which deal in particular with capital gains tax and stamp duties, are specific. Therefore, the latter provisions override the former for generalibus specialia derogant (i.e. special things derogate from general things). There are the Capital Gains Act, Cap. 42 of the Laws of the Federation of Nigeria, 1990 and the Stamp Duties Act Cap. 411 which are "existing laws" under Section 315 of the 1999 Constitution. However, the Acts do not contain provisions pursuant to Section 163 of the 1999 Constitution and as at now the National Assembly has not prescribed the net proceeds of such tax or duty which are to be distributed among the States on the basis of derivation.

Therefore, it follows that there is no basis on which capital gains tax and stamp duties collected by the Government of the Federation could for the time being be paid to the States or into the Federation Account as being claimed by the second and third plaintiffs. It is, in fact, clear by the provisions of Section 163 that capital gains tax and stamp duties are supposed to be paid, when applicable, to the States from which they are derived and not for the benefit inter alia of all the States, which will be the case were the tax and duties to be paid into the Federation Account (see Section 162 subsection (3) of the Constitution).

From the foregoing, it is clear that the declarations in question being sought by the second and third plaintiffs cannot succeed. With regard to privatisation of Government enterprises by the Government of the Federation, Section 20 of the Public Enterprises (Privatisation and Commercialisation) Decree No 28 of 1999 provides that the Bureau of Public Enterprises shall establish and maintain a fund from which shall be defrayed all expenditure incurred by the Bureau. The fund so established is to be financed by subvention from the Government of the Federation, loan or grant to the Bureau by the Governments of the Federation or State or Local Government; all subventions, fees and charges for services rendered by the Bureau including publications, and all other assets which may from time to time accrue to the Bureau. By Section 21 subsection (2) of the Decree the Bureau shall cause the net surplus of receipts and payments made to it in every year to be paid to the Government of the Federation. The privatisation of public enterprises cannot be dealt with in isolation from capital gains tax and stamp duties since all constitute a single claim for declaration by the second and third plaintiffs respectively. Once the declaration with respect to the latter is untenable then so also the declaration with regard to the privatisation of Government enterprises because all are lumped together in the declarations being sought and are not severable.

It is for the aforesaid reasons and the more detailed reasons contained in the judgment of my learned brother Onu, JSC that the plaintiffs' claims do not succeed in part. I grant the claims granted in the said judgment and also make no order as to costs.

 

Belgore, JSC:- These suits brought under the original jurisdiction of the court were consolidated for hearing with their pleadings as well as briefs of argument which were exchanged by the parties. They were filed before this Court gave judgment in the suit, A-G of the Federation v A-G of Abia State & 35 others (now reported in (2002) 6 NWLR (Part 764) 542, delivered on 5 April, 2002. When these suits were being heard, it is apparent that most of the issues in them had been decided in the above case by this Court. When this was pointed out to the parties fifteen of the reliefs were abandoned by Lagos State leaving four to be contested. What therefore remained to be decided in Lagos State's suit are three declarations and a prayer for injunction, to wit:-

"5.     A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162(i) and (iv) of the Constitution . . . to pay into the Federation Account all the proceeds and income, save those exempted under Section 162(i) accruing from the privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source.

7.      A declaration that the defendant is not entitled within the proper meaning of Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria 1999 to pay the amount standing to the credit of the Local Government Councils in the Federation directly to the Local Government Councils and that such payments by the defendant is illegal and unconstitutional.

12.     A declaration that Section 3 and 6 (1), (2) and (3) of the Allocation of Revenue (Federation Account) Act (Cap. 16) Laws of the Federation of Nigeria 1990 as amended by Decree No 106 of 1992 are inconsistent with Section 162(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria 1999 and invalid, unconstitutional, null and void and of no effect.

15.     An order of injunction restraining all officers, servants, and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever and howsoever from keeping and/or maintaining or sustaining any other account save the Federation Account for the purpose of receiving all revenue as defined by Section 162(10) of the Constitution collected by the Government of the Federation."

Under Section 163(b) of the Constitution in regard to tax or duty envisaged in Part II, Second Schedule, Item D is collected by the Government of the Federation or any other authority of the Government of the Federation, such money will not go into Federation Account. This is because if it is paid into Federation Account it will be subject to distribution formula envisaged in Section 163(3) of the Constitution i.e. to Federal Government, State Governments and Local Governments. The provisions of Section 163(b) envisage that such money should be paid to each state in the proportion of derivation from each state. Thus such money should not go into Federation Account but a different account. This equally applies in respect of declaration sought in paragraph 15. In view of this, declarations 5 and 15 cannot be granted as it will clearly conflict with Section 163(b) of the Constitution. Therefore no injunction can be granted. There is no problem with Reliefs 7 and 12 as they are clearly in consonance with this Court's decision in A-G of the Federation v A-G of Abia & 35 others (supra) and are granted.

In Ogun State's suit Relief iv is the same as Relief 7 sought by Lagos State and I grant it. Relief xi is the same as Relief 5 of Lagos State and it is similarly refused. Relief xii and xiv praying for "perpetual injunction to restrain the defendants etc. . .from committing unconstitutional acts in violation of any of the provisions of Section 162 of the Constitution" and "order compelling the defendant to pay the plaintiff its legitimate and correct share of the Federation Account less monies already paid to the plaintiff from the said Account within period 29 May 1999 till date of the judgment" respectively are not only too vague but very wide for this Court to grant. The reliefs cannot be granted and are therefore refused.

The suit by Oyo state, the Reliefs No 3 and 10 were the only ones pursued in the fifteen reliefs sought, others being abandoned. The Relief No 3 is similar to Relief 7 of Lagos State, which I have granted. I grant this Relief 3 for the same reason. The Relief No 10 by this state is on all fours with Relief No 5 of Lagos State and it is similarly refused for reasons I advanced in regard to Relief 5 of Lagos State.

Ondo State in its suit (SC 277/2001) set out 15 reliefs but it abandoned 11 of them, leaving only four reliefs which were fully argued. Relief iv is the same in vein to Lagos State Relief 7 which I earlier granted. I grant this Relief iv. Relief xi is similar to Relief 5 of Lagos State, which is refused. This Relief iv is also refused. Relief xii and xiii are virtually the same with Ogun State Relief xii and xiv which I held to be vague and too wide and refused to grant. I also refuse these two reliefs. As there is no Act of National Assembly passed in respect of Revenue Allocation in view of this Court's decision in A-G of the Federation v A-G of Abia State & 35 others (supra) it is obviously premature to grant the Relief No xiv in Ondo State's suit.

Eleven of the fourteen reliefs sought by Osun State (Suit No SC 296/2001) were abandoned leaving only three which were fully argued. Relief No iv is the same as Relief No 7 of Lagos State, it is hereby granted for the same reasons early advanced. Reliefs x and xiv are similar to Reliefs xii and xiv of Ogun State and are therefore refused for the same reasons as given in Ogun State's claim.

I had discussed in conference and have read in draft the judgment of the my learned brother, Onu, JSC and I agree with the conclusions. I make no order as to costs.

 

Mohammed, JSC:- I have had a preview of the judgment of my learned brother, Onu, JSC in draft in these consolidated suits and I am in entire agreement with the conclusions expressed in that judgment. He expressed fully and accurately my own views and I do not find it necessary to repeat what he had adequately considered.

I therefore grant the following claims:-

1.        Ogun State                    -       Claims            4

2.        Lagos State                 -       Claims            7 and 12

3.        Oyo State                      -       Claims            3

4.        Ondo State              -       Claims            4

5.        Osun State                    -       Claims            4

 

All the rest of the claims from the respective five plaintiffs have failed and they are dismissed. I make no order as to costs.

 

Iguh, JSC:- I have had the privilege of reading in draft the judgment just delivered by my learned brother, Onu, JSC and I am in complete agreement with the conclusions therein reached.

He has considered all the claims before the court together with the various issues that arise from the consolidated suits in great detail and I do not think there is any thing more I can usefully add. It suffices to say that I abide by his decisions in all the claims in the respective suits. I also endorse all the orders therein made. I agree that in all the circumstances of these cases, each party ought to bear his own costs. Accordingly, there will be no order as to costs.

 

Uwaifo, JSC:- The five suits filed by each of the plaintiffs were consolidated for hearing and determination. They were filed and the pleadings as well as briefs of argument exchanged before the judgment of this Court in A-G of the Federation v A-G of Abia State & 35 others (2002) 6 NWLR (Part 764) 542 was given on 5 April, 2002. In the event, most of the reliefs sought in these consolidated suits which had in effect been pronounced on in the said judgment did not need any further resolution. I shall consider the claims individually.

 

Lagos State

In regard to the claim in SC 189/2001, which my learned brother Onu JSC decided to use as a guide, of the 19 reliefs sought 15 were accordingly abandoned while 4 were considered. Those considered were:-

"5.     A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162(i) and (iv) [sic: (1) & (4)] of the Constitution of the Federal Republic of Nigeria 1999 to pay into the Federation Account all the proceeds and income, save those exempted under Section 162(i), accruing from the privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source.

7.      A declaration that the defendant is not entitled within the proper meaning of Section 62(5), (6) & (8) of the Constitution of the Federal Republic of Nigeria, 1999 to pay the amount standing to the credit of the Local Government Councils in the Federation Account directly to the Local Government Councils and that such payments by the defendant is illegal and unconstitutional.

12.     A declaration that Sections 3 and 6(1), (2) and (3) of the Allocation of Revenue (Federation Account) Act Cap. 16 Laws of the Federal Republic of Nigeria as amended by Decree No 106 of 1976 (sic: 1992) are inconsistent with Section 62(5), (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 and are invalid, unconstitutional, null and void and of no effect.

15.     An Order of Injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever and howsoever from keeping and/or maintaining or sustaining any other Account save the Federation Account for the purpose of receiving all revenue as defined by Section 162 (10) of the Constitution collected by the Government of the Federation."

Reliefs 5 and 15 are refused for reasons that, in regard to Relief 5, under Section 163(b) of the Constitution, where tax or duty of the type envisaged in Item D of Part II of the Second Schedule is collected by the Government of the Federation or other authority of the Federation, the money ought not to be paid into the Federation Account since once that is done, it will be subject to the distribution pattern provided in Section 62(3) of the Constitution. Whereas under Section 163(b) the money is meant to be paid to each State in due course in the proportion in which it was derived from that State. Therefore such money is better kept in an account different from the Federation Account. A declaration in the manner sought in Relief 5 fails to take cognisance of Section 163(b). As to Relief 15, it cannot be granted in view of what has been said in respect of Relief 5.

In view of the relevant provisions of the Constitution cited in Reliefs 7 and 12 whose meanings are clear, the declarations sought therein are granted.

 

Ogun State

In Suit No SC 137/2001, 15 reliefs were sought. Out of these 11 were abandoned and 4 were pursued as follows:-

"(iv) A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Ogun State from the Federation Account and pay same directly to the Local Government Councils rather than into the State Joint Local Government Account.

(xi) A declaration that it is illegal and unconstitutional for the defendant to maintain and keep any other account for the purpose of receiving revenue collected by the Federation other than as prescribed by Section 162(1) of the Constitution.

(xii) An Order of Perpetual Injunction restraining the defendant by itself, agents, officers or privies from repeating or further committing such or similar unconstitutional acts in violation of any of the provisions of Section 162 of the Constitution.

(xiv) A further order compelling the defendant to pay to the plaintiff its legitimate and correct share of the Federation Account less all monies already paid to the plaintiff from the said Account, within the period 29 May 1999 till the date of judgment in this suit."

I consider Relief (iv) as the same as Relief 7 sought by the Attorney-General of Lagos State which I have granted. I accordingly grant Relief (iv). Relief (xi) is similar to Relief 5 by Lagos State. It is refused. Reliefs (xii) and (xiv) are either vague or too wide. They are refused.

 

Oyo State

In Suit No SC 253/2001, 15 reliefs were sought. Only Reliefs 3 and 10 were pursued while the rest were abandoned. Those pursued read:-

"3.     A declaration that it is illegal and unconstitutional for the defendant to deduct funds from the Federation Account and pay same over to Local Government Councils instead of State Joint Local Government Account."

I grant this relief for the reason I have granted Relief 7 by Lagos State.

"10. A declaration that withholding of proceeds from Stamp Duties, Capital gains tax, Federal Government privatisation programmes and any other income accruable to or derived by the Government of the Federation from being paid to the Federation Account is illegal and unconstitutional."

I refuse this relief having regard to the implication of what I have said in regard to Relief 5 by Lagos State.

 

Ondo State

In Suit No SC 277/2001, 15 reliefs were stated out of which 11 were abandoned. Although 4 were argued, it is only Relief (iv) I hereby grant for the same reason I have granted Relief 7 by Lagos State. The relief reads:-

(iv) A declaration that it is illegal and unconstitutional for the defendant to deduct funds due to the Local Government Councils in Ondo State from the Federation Account and pay same directly to the Local Government Councils rather than into the State Joint Local Government Account."

Relief (xi) which was like Relief 5 by Lagos state is refused. Reliefs (xii) and (xiii) similar to Reliefs (xii) and (xiv) by Ogun State are refused either for being vague in respect of Relief (xii) or that in respect of Relief (xiv) it is unnecessary as there is no law yet on the matter by the National Assembly.

 

Osun State

In Suit No SC296/2001, 14 reliefs were sought out of which 11 were abandoned. Relief (iv) which is the same as Relief 7 by Lagos State is hereby granted. Reliefs (x) and (xiv) similar to Reliefs (xii) and (xiv) by Ogun State are refused.

I have reached the same conclusions as my learned brother Onu JSC whose judgment I had the opportunity of reading in advance and with which I formally say I agree. I make no order as to costs.

 

Ejiwunmi, JSC:- The several suits referred to above were initiated at the instance of the Attorneys-General of Ogun, Lagos, Oyo, Ondo and Osun States against the Attorney-General of the Federation. In view of the fact that their claims are similar, the several actions were consolidated on 24 September 2001. Some of these claims however do not need to be considered in this action, as they have been dealt with and pronounced upon in the case of A-G of the Federation v A-G of Abia State & 35 others (No 2) of (2002) 6 NWLR (Part 764) 542. In the course of the hearing of the case, the plaintiffs in recognition of the fact that several of their claims have been pronounced upon in the said case abandoned their claims in this action.

However, it is manifest that two claims by the second and third plaintiffs remained to be considered. The Attorney-General of Lagos State had in his own action in Claim No 5, sought for the following declaration. It reads:-

"5.     A declaration that the Federal Government is mandatorily obliged by the combined effect of Section 162 (i) and (iv) (sic) Section (1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 to pay into the Federation Account all the proceeds and income, save those exempted under Section 162(i) (sic) 162(1) accruing from privatisation of Government enterprises, from stamp duties, capital gains tax and other income accruing to or derived by the Federal Government from any other source."

The Attorney-General of Oyo State, in its Claim No 10, is seeking for the following:-

"10. A declaration that withholding of proceeds from Stamp Duties, Capital Gains Tax, Federal Government privatisation programs and any other income accruable to or derived by the Government of the Federation from being paid to the Federation Account is illegal and unconstitutional."

Now, in order to determine the veracity of these two claims, it is necessary to consider whether or not they fall

within the constitutional provisions in our 1999 Constitution. The appropriate sections of the Constitution that are relevant, are in my view, Sections 162(1), 162(10), 163; Item D of Part II of the Second Schedule (Paragraphs 7-10) under the Concurrent Legislative List.

"(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 Foreign Affairs and the residents of the Federal Capital Territory, Abuja."

 

"(10) For the purposes of subsection (1) of this section, 'revenue' means any income or return accruing to or derived by the Government of the Federation from any source and includes:-

(a)     any receipt, however described, arising from the operation of any law:-

(b)     any return, however described, arising from or in respect of any property held by the Government of the Federation;

(c)     any return by way of interest on loans and dividends in respect of shares or interests held by the Government of the Federation in any company or statutory body."

"163 Where under an Act of the National Assembly, tax of duty is imposed in respect of any of the matters specified in Item D of Part II of the Second Schedule to this Constitution, the net proceeds of such tax or duty shall be distributed among the States on the basis of derivation and accordingly:-

(a)     where such tax or duty is collected by the Government of a State or other authority of the State, the net proceeds shall be treated as part of the Consolidated Revenue Fund of that State;

(b)     where such tax or duty is collected by the Government of the Federation or other authority of the Federation, there shall be paid to each State at such times as the National Assembly may prescribe a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that State."

 

"Par. 7 In the exercise of its powers to impose any tax or duty on:-

(a)     capital gains, incomes or profits of persons other than companies; and

(b)     documents or transactions by way of stamp duties

the National Assembly may, subject to such conditions as it may prescribe, provide that the collection of any such tax or duty or the administration of the law imposing it shall be carried out by the Government of a State or other authority of a State."

A careful perusal of the provisions of Section 162 subsection (1) and (10) of the 1999 Constitution, in my humble view reveal that those sections of the Constitution appear to be general in nature, while those of Section 163(b) of the Constitution which deals particularly with Capital Gains Act, are specific. It is very clear from the reading of the provisions of Section 163(b) that proceeds from the collection of such tax or duty collected by the Government of the Federation are to paid at such times as the National Assembly may prescribe and in the manner that is deemed proper in accordance with the said Section 163(b).

It is necessary to also advert to the Capital Gains Act Cap. 42 of the Laws of the Federation of Nigeria, 1990 and the Stamp Duties Act Cap. 411, which are existing laws under Section 315 of the 1999 Constitution. These acts do not contain provisions pursuant to Section 163 of the 1999 Constitution, and as the National Assembly has not prescribed by any legislation how the net proceeds of such tax or duty are to be paid distributed among the States on the basis of derivation. It must therefore follow that in the absence of such claims in this regard are not sustainable. It must be pointed out also that by virtue of the provisions of Section 163 capital gains tax and stamp duties are expected to be paid, when applicable to the States from which they are derived and not for the general benefit of all the States (see Section 162 subsection (3) of the Constitution).

I now would answer briefly the claim with regard to the privatisation of Government enterprises by the Government of the Federation. Section 20 of the Public Enterprises (Privatisation and Commercialisation) Decree No 28 of 1999 provides that the Bureau of Public Enterprises shall establish and maintain a fund from which shall be defrayed all expenditure incurred by the Bureau. The fund so established is to be financed by subvention from the Government of the Federation or State or Local Government; all subventions, fees and charges for services rendered by the Bureau including publications, and all other assets, which from time to time accrue to the Bureau. By Section 21 subsection (2) of the Decree, the Bureau shall cause the net surplus of receipts and payments made to it in every year to be paid to the Government of the Federation.

In the face of this legislation, it does not appear that the claim of the plaintiffs can be upheld. Interestingly, plaintiffs perhaps acting in the belief that the Federal Government had been the sole beneficiary from the privatisation of public enterprises, capital gains tax and stamp duties, had in this action joined these various complaints under one claim. Having done so, it became impossible to sever them in the consideration of the claim. It follows then that these several complaints must fall together in the circumstances.

For the reasons given above and the fuller reasons given in the lead judgment of my brother Onu, JSC, I also make the declaratory reliefs that were granted in the said lead judgment. And I also make no order as to costs.

Plaintiffs' claims succeeded in part only.