David Mark

Regulation of state government-owned television and radio stations by 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. 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. A suit in this regard is pending at the Federal High Court in Abuja between this writer and the commission.

Inclusion of the private sector in the contributory         pension scheme introduced by the Pension Reform Act   2004

That provision (Section 1) 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.

This issue is the subject matter of suit No: NICN/ABJ/43/14 between this writer and the National Pension Commission, which is presently pending before the President of the National Industrial Court in Abuja.  

Prosecution of pension fraud suspects

It has been the practice to try persons accused of committing fraud in relation to pension funds at the Federal High Court. This is usually by virtue of the provisions of certain extant laws such as the Anti-Money Laundering Act, the EFCC Act, etc. It will be recalled that a Federal High Court in Abuja, convicted the infamous pension thief, John Yakubu, whose sentence in form of N750,000 fine (which he promptly paid) caused so much public anger that the National Judicial Council had to sanction the trial judge by suspending him without pay for a year. I believe that by virtue of Sections 254 (c) (1) (k) and 254 (c) (5) of the 1999 Constitution, as amended, the National Industrial Court possesses exclusive jurisdiction over cases of pension fraud. The question is: what is the implication of this for   convictions already handed down by the Federal High Court, such as   that of Yakubu referred to above? Well, they risk being invalidated or upturned on appeal.

Subsidisation of petroleum products

There is currently no   law that obliges the government to subsidise 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 organisation 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, second edition.

Both Section 6(1) of the Petroleum Act 1969 and Section 4 of the Price Control Act merely empower the Ministers of Petroleum and of Commerce respectively to fix the prices of petroleum products; neither law imposes an obligation on the government to actually subsidise petroleum products. At any rate, both enactments are invalid because of the non-designation of petroleum products as essential commodities by the National Assembly. Such a designation is required by Item   62(e) of the Exclusive Legislative List of the Constitution in order to   validate any price control legislation.

To that extent, both the Price Control Act and Section 6 of the Petroleum Act, as well as the Petroleum Products Pricing Regulatory Agency Act and the Petroleum Equalisation Fund Act, are ultra vires the National Assembly, invalid, null and void. This matter is the     subject of a pending appeal at the Abuja Division of the Court of Appeal.

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. Attorney-General of Kano State (1998)7 NWLR Pt. 556 pg 1 and again by the Court of Appeal in Attorney-General Of Cross River State vs. Ojua (2011) All FWLR pt 594 pg 151.

Status of the Lagos State Tobacco Control Act 2014 and the Lagos State Consumer Protection Agency Act 2014

Cigarettes are undoubtedly 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 the Assembly, 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.

The said law on smoking is the subject matter of a suit between this writer and the Government of Lagos State pending at the Federal High Court in Abuja.

Production of drivers’ licences and vehicle number plates by the Federal Road Safety Corps

Notwithstanding the recent decision of a Federal High Court in Lagos 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 did in the FRSC Act 2007, that the operations of the Corps shall “cover all public highways.”

Federal trunk roads are the operational limits of the FRSC under the Constitution. A federal trunk road is as designated by the Minister of Works through a publication in the Federal Gazzette – Section 27 of the Federal Highways Act 1971; they are usually inter-state highways.

Inclusion of states 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 former Central Bank of Nigeria Governor, Sanusi Lamido Sanusi, over alleged infractions of the Financial Reporting Council Act.

The 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, “governments, organisations, quoted and unquoted companies”, etc.

To the extent that the law includes states 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 to legislating only on “accounts of the Government of the Federation and of offices, courts and authorities of that Government including audit of those accounts.”

This issue is the subject of pending   litigation between this writer and the Financial Reporting Council at the Federal High Court five.

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 penalised 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 Charter on Human & 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/penalties, or none at all. It follows that, in our 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.

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.

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 fully-fledged member are a nullity.

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 the board to all   legislatures – federal, state or local government levels.

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 our view, that the aforesaid anomalies be reviewed and corrected in the interest of the rule of law and constitutional supremacy.

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