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Highlighting some topical anomalies in Nigerian law

By Abubakar Sani
21 January 2020   |   4:20 am
I believe that the following provisions of Nigerian law constitute anomalies which ought to be corrected. One of such provisions is the regulation of state government-owned television...

Abubakar Malami (SAN)

I believe that the following provisions of Nigerian law constitute anomalies which ought to be corrected. One of such provisions is the regulation of state government-owned television and radio stations by the National Broadcasting Commission (NBC). This practice is supported by Sections 2(i)(b)(ii), 9(i)(a),9(6) and 14(2)(a) of the National Broadcasting Commission Act 1992. I believe that those provisions of the Act are ultra vires the National Assembly under Item 66 of the Exclusive Legislative List, by virtue of which the Assembly is restricted to regulating “wireless, broadcasting and television other than broadcasting and television provided by the government of a state…” To the extent that every state in the federation owns at least, one radio and television station, the implications of a successful challenge to this anomaly are obvious.

Another provision of Nigerian law that constitutes an anomaly is the inclusion of the private sector in the Contributory Pension Scheme introduced by the Pension Reform Act 2014. That provision (Sections 1, et seq) of the Act is ultra vires the National Assembly by virtue of Item 44 of the Exclusive Legislative List of the 1999 Constitution, which limits the National Assembly to regulating only “pensions, gratuities and other like-benefits which are payable out of the Consolidated Revenue Fund or any other public fund of the Federation.” Given that the private sector is by far, the largest contributor to the Contributory Pension Scheme, the implications of this anomaly are only too obvious.

On the subsidization of petroleum products, there is currently no law that obliges the government to subsidize anything including petroleum products. What we have are two laws which merely empower the government to “fix” the prices of petroleum products. A subsidy is an amount of money paid by the government or an organization to reduce the cost of a product in order to keep its price low.

The verb, ‘fix on the other hand, in relation to prices, means “to take a decision in relation to the price of a product or service and not allow it to change.” See Macmillan English Dictionary, 2nd Edition. Both Sections 6(1) of the Petroleum Act 1969 and 4 of the Price Control Act merely empower Ministers of Petroleum and of Commerce respectively, to fix the prices of petroleum products; neither law imposes an obligation on the government to actually subsidize petroleum products.

There is also the ban on the sale of alcohol in some Northern states under the Penal Code enacted by the Houses of Assembly of those States. The licensing, control and regulation of the sale of alcohol is the exclusive function of local government councils by virtue of Section 7(5) and paragraph 1(k)(vi) of the 4th Schedule to the 1999 Constitution. To that extent, the various laws enacted by certain Northern States Houses of Assembly to regulate the sale of alcohol are ultra vires those Houses of Assembly. This position, i.e., the exclusive power of local government councils to regulate the items contained in the 4th Schedule to the Constitution was confirmed by the Supreme Court in Knight, Frank & Rutley vs Att-Gen of Kano State (1998)7 NWLR pt. 556 pg 1 and again, by the Court of Appeal in Att-Gen of Cross River State vs. Ojua (2011) All FWLR pt. 594 pg 151.

The fifth of these laws is the status of Lagos State Tobacco Control Law, 2014 and the Lagos State Consumer Protection Agency Law, 2014. Cigarettes are undoubtedly, drugs and are poisonous. By virtue of Item 21 of the Exclusive Legislative List of the Constitution, only the National Assembly is competent to legislate on poisons. To that extent, the law recently passed by the Lagos State House of Assembly to regulate smoking in public places is ultra vires, invalid, null and void. The same applies to the Consumer Protection Agency Law 2014, passed by the same Assembly. By virtue of Item 62(d) of the Exclusive Legislative List of the Constitution, only the National Assembly is competent to “establish a body to prescribe and enforce standards of goods and commodities offered for sale.” To the extent that the said law establishes such a body for just such a purpose in Lagos State, it is ultra vires the Lagos State House of Assembly, invalid, null and void: Section 4(1) and 4(7) of 1999 Constitution.

Again, the production of drivers’ licenses and vehicle number plates by the Federal Road Safety Corps as well as the operation of the Corps on all public highways are considered anomalies in law. Notwithstanding the decision of a Federal High Court, Lagos Division, which invalidated the new vehicle number plates introduced by the FRSC, I believe that the Corps lacks the power, ab initio, to produce even the old or existing number plates. This is because the authority which the Constitution confers on the National Assembly in this regard is limited to “regulating traffic on federal trunk roads.” See Item 63 of the Exclusive Legislative List of the Constitution. This provision clearly does not include production of either vehicle number plates or drivers licenses. Similarly, the National Assembly is incompetent to enact, as it does in the FRSC Act 2007, that the operations of the Corps shall “cover all public highways.” Federal trunk roads are the operational limits of FRSC under the constitution. A federal trunk road is as designated by the Minister of Works through a publication in the Federal Gazette, Section 27 of the Federal Highways Act 1971; they are usually inter-state highways.

Another anomaly is the inclusion of State and Local Governments in the scope of the Financial Reporting Council Act 2011. The Financial Reporting Council came into popular consciousness through its indictment of the suspended Central Bank of Nigeria Governor, Sanusi Lamido Sanusi, over alleged infractions of this law. The Financial Reporting Council Act prescribes standards to be enforced by so-called “public interest entities” in the preparation of financial statements and audited accounts of such entities. Section 77 of the Act defines “public interest entities” as, inter alia, “government’s government organizations, quoted and unquoted companies”, etc. To the extent that the law includes State and Local Governments in its scope, we submit that it is inconsistent with Item 1 of the Exclusive Legislative List of the 1999 Constitution, which restricts the National Assembly from legislating only on “accounts of the Government of the Federation and of offices, courts and authorities of that Government including audit of those accounts.”

Another anomaly is the exemption of agencies of government from paying fees or penalties at the Federal High Court. By virtue of Order 55, Rule 1 of the Federal High Court Rules 2009, no government (at any level) or their agencies, are required to pay any fees to file any process at the Federal High Court. Similarly, such parties are exempted from paying any penalties for tardiness. Such penalties usually take the form of a ‘fine’ of N200 for every day in which that party defaults. In other words, no matter how late any government or its agency is in taking any step at the Federal High Court, he can simply walk into court at any time and seek to rectify the irregularity without being penalized for its default. I believe that this is unfair to other parties as it negates the idea of justice being blind to status, creed or any other differences. More precisely, it is inconsistent with the right to equal protection of the law under Article 3(2) of the African on Human and Peoples Right. In NNPC vs Fawehinmi (1998) 7 NWLR pt 559, pg 598 @ 616, the Court of Appeal held that this Right forbids discrimination between persons and things which the law regards as being similarly circumstanced. It is clear that to the extent that justice is blind, all litigants are equal and are thus, similarly circumstanced. Therefore, the law ought not to discriminate between them in terms of privileges conferred or liabilities imposed. Accordingly, we submit that the requirement of payment of fees or penalties ought to apply across board to all litigants regardless of status. In other words, either all litigants pay fees or penalties, or none at all. It follows that in my view; those provisions of the Federal High Court Civil Procedure Rules 2009 are inconsistent with Article 3(2) of the African Charter and are therefore invalid, null and void.

On the issue of proceedings under the ‘NAPTIP’ Act for child abuse and human trafficking, Section 33 of the Trafficking in Persons (Prohibition) Act 2003 confers jurisdiction on State High Courts and the High Court of the FCT in civil or criminal cases relating to child abuse or human trafficking. This is contrary to the Third Alteration to the 1999 Constitution, i.e., Section 254(1)(i), which confers exclusive jurisdiction on the National Industrial Court in such cases.

Another that is considered an anomaly is the claims for custody of children under the Child Rights Act 2003. Section 152(3) of the Child Rights Act 2003 provides that whilst hearing claims for custody of children, the Family Division of the High Court of the Federal Capital Territory and of the states shall sit with two assessors who shall be “Child Development Officers.” This provision appears to be inconsistent with Sections 273 and 258 of 1999 Constitution which provide that a High Court shall be duly constituted if it consists of at least, a judge of that court. It has been held that it is unconstitutional for any person who is not a judge of a high court to sit in that court as a member of the court along with a substantive judge of the court. The consequence is that any proceedings of the high court in which such a non-judge participated as a full-fledged member are a nullity.

In conclusion, it is elementary that the Constitution is supreme. Therefore, any law which is inconsistent with it is invalid, null and void to the extent of the inconsistency. This applies across board to all legislatures – Federal, State or Local. In the case of the National Assembly, it can only legislate on matters in respect of which it is specifically empowered under the Constitution: Doherty vs Balewa (1962) SCNLR 42 at 46 per Ademola, CJF. In the case of State Houses of Assembly, they are incompetent to legislate on matters reserved for the National Assembly and Local Government Councils in the 2nd Schedule (the Exclusive Legislative List) and the 4th Schedule of the Constitution respectively.

Accordingly, it is imperative, in my view, that the aforesaid anomalies be reviewed and corrected in the interest of the rule of law and constitutional supremacy.