The plea by the state governments to the Federal Government of Nigeria for a bailout dominated our dailies in the last three weeks. The plea was predicated on the fact that some state governments were unable to pay their workers’ salaries. Without deviating from the focus of this discourse, the irresistible question is whether the Federal Government is constitutionally empowered to accede to the states’ request for “grants” or bailout as some newspapers put it?

Section 1(2) of the 1999 Constitution reads, “The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof except in accordance with the provisions of this Constitution.”

Therefore, the only document as our point of reference is the 1999 Constitution in determining whether or not the Federal Government has the power to give grant to a state government. A scrutiny of the 1999 Constitution (as amended) particularly, Section 164, seems to provide a direction to answering this question and for ease of reference, the section is reproduced hereunder:

“The word “federation” used in the above quoted provisions of the Constitution appears to be clear and as a matter law, it must be given its ordinary meaning. This position has been given judicial approval in plethora of cases by the apex court of the land. Amongst the list of such cases is Fawenhimi v I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 678, where the Supreme Court succinctly put the law thus: “The proper approach to the interpretation of clear words of a statute is to follow them in their simple grammatical and ordinary meaning, rather than look further because that is what prima facie gives them in their most reliable meaning. This is also generally true in the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation.”

Other cases in this category include Rabiu v A.G. Kano State (1982) 2 NCLR 117; Aqua Ltd v Ondo State Sports Council (1985) 4 NWLR (Pt. 91) 622; Tukur v Gongola State (1989) 4 NWLR (Pt. 117) 517 and Ishola v Ajiboye (1994) 6 NWLR (Pt. 352) 506.

This line of cases would only apply where the word used in the statute or the Constitution is not ambiguous and or not susceptible to more than one meaning. The precautionary limitation of the application of this “literal rule of interpretation” was established in the case of A.G. Abia State v A.G. Federation (2002) 6 NWLR (Pt. 763) 264 at 485 – 486. The word “federation” as contemplated and conceptualised in the Constitution is not left to the discretionary power of the court by ascribing meaning(s) other than that ascribed to it in the Constitution.

The interpretation section is unequivocal about this and it provides as follows: “federation” means “the Federal Republic of Nigeria”. Reading the provision of Section 164(1) with this meaning, what we have is “The Federal Republic of Nigeria may make grants to a state to supplement the revenue of that state in such sum and subject to such terms and condition as may be prescribed by the National Assembly.”

Applying the literal interpretation rule of construction, it is the whole country i.e. the Federal Republic of Nigeria, that has the power to make grants to any state and not the Federal Government, which represents one of the three arms that constitute the federal structure of Nigeria.

Of course, one may be wondering where the distinction between the Federal Government and the Federal Republic of Nigeria lies. The distinction, akin to that which permeates the mathematical universal set and subset, is that, while the federation comprises of the federal, states and local government, the Federal Government, on the other hand, is just one of the components of the federation.

With the clear and unambiguous provision of Section 164(1) of the Constitution, the only authority empowered to make grants to the states is the Federal Republic of Nigeria i.e. the entire Nigeria itself and not the Federal Government. The distinction drawn here is further strengthened by the recent Supreme Court’s decision in A.G. Lagos State v A.G. Federation SC No: 20/2008 judgment delivered on April 11, 2014 where their Lordships specially held that the government of the federation is not the same thing as the Federal Government. While that decision represents the law today, the jurisprudential correctness of the decision in the light of the actual dispute submitted to the court is a different matter altogether.

This writer is not oblivious of the provision of Section 5(1) of the Constitution which provides to the effect that the executive powers of the federation, which has been defined to mean the Federal Republic of Nigeria, shall be exercised by the President. Any attempt to read federation to mean Federal Government would amount to reading into the Constitution what is not intended. This has been deprecated by the Supreme Court in the case of Ojukwu v Obasanjo & Ors (2004) 12 NWLR (Pt. 886) 169 at 209, where it was held thus:

“A court of law is without power to import with the meaning of a word, clause or section of a statute something that it does not say. See Bronik Motors Ltd & Ors v Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296; Indeed, it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. See Thompson v Goold & Co. (1910) AC 409 at 420. Further, interpreting statutory or constitutional provisions, such provisions should not be read in isolation of the other parts of the statute or constitution.”

Having delineated the meaning of the word “federation” to expressly mean the Federal Republic of Nigeria, it thus suffices to say that the Federal Government is not intended. This position finds support in the maxim “expression unius est exclusion alterius” as was decided by the Court of Appeal in Abacha v FRN (2006) 4 NWLR (Pt. 970) 239 at 309 – 310 where it was held thus:

“Where a statute mentions specific, things not mentioned are not intended to be included –expression unius est exclusion alterus.”

It is important to state here that irrespective of any supposed absurdity that may arise from giving effect to the express intention of the Constitution, especially in terms of international diplomatic relations, which puts the Federal Government in the front of decision making for the entire country, for instance, where the Federal Republic of Nigeria is to make grant to a foreign country, this decision is taken by the Federal Government on behalf of Nigeria. This would however not override the intention of the Constitution when considering the internal democratic structure of the country. Nigeria’s existence is predicated on the concept of federalism and its components are the federal, states and local governments. The federal government alone cannot (under the present constitutional arrangement) take or unilaterally give out any sum of money from the pool of funds jointly owned by the federation in the Federation Account. The collective ownership of the funds is established in Section 162(1) of the Constitution wherein it is provided that:

“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…..”

Again, the reference here is not and cannot be Federal Government. It simply refers to the Federal Republic of Nigeria. Subsection 3 of 162 then follows up that “any amount standing to the credit of the Federation Account shall be distributed among the federal, state and the local governments council in each state on such terms and in such manner as may be prescribed by the National Assembly.”

It is conceded that Federal Government may have its own account separately and can determine its own funds in whatever manner it so pleases, subject to the approval of the National Assembly. That being said, in view of Section 5(1) of the Constitution, it is submitted that President Buhari reserves the exclusive power to bind the “federation” and can exercise the federation/Federal Republic of Nigeria’s power to make grant to the State to supplement any revenue due to it. But even at that, this must still be subject to any law/approval made by the National Assembly.

Ramoni, a legal practioner, wrote from Lagos

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