Legislative Powers Of The National Assembly Of Nigeria: Whether Extend To Other Provisions Of The 1999 Constitution Beyond Items 1-66 Of The Exclusive Legislative List?

By Hameed Ajibola Jimoh Esq.

There have been some confusions among some lawyers on the legislative powers of the National Assembly, especially as to whether the powers of the National Assembly are only restricted to only those items listed on items 1 to 66 of the Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or the powers of the National Assembly extend beyond the said items 1- 66? This paper aims to clear these doubts within the Constitutional legal frameworks and legal authorities, hence, this topic.

First and foremost, I must state that this issue relates to Constitutional law. It is therefore my humbly submission that the Constitutional powers of the National Assembly are not restricted to those items 1- 66 of the of the Part I of the Second Schedule to the Constitution rather, the true position of the constitutional law (to the best of my knowledge) is that the powers of the National Assembly have been given extension beyond those items listed on items 1- 66 by items 67 and 68 of the said of the Part I of the Second Schedule to the Constitution, notwithstanding that the entire items 1- 68 are regarded as the Exclusive Legislative List. Though, I must state immediately here that the general powers of the National Assembly are not only restricted to those powers conferred by the Exclusive Legislative List, rather, they are as broadly provided by section 4 of the Constitution. It is my respectful observation that those lawyers who hold (though erroneously as clearly seen from my submission above, with due respect to them) have only taken their attention strictly on the items 1- 66 of the Constitution without averting their attention and or mind to the remaining items 67 and 68, which might seem meaningless, but they would have cleared the doubts in this circumstance having regard to their importance.

Now, like I stated earlier, this issue at hand is an issue bothering on Constitutional law. Therefore, this issue also bothers on the interpretation of the provisions of the Constitution to discover the real intent of the framers and or the makers of the Constitution as to whether they desire that on the issue of exclusivity of the items 1- 66 of the Part I of the Second Schedule to the Constitution, do they intend that the Exclusive Legislative List should start and end on items 1- 66 only or same should extend beyond same but to items 67 and 68? What then was the mind and or intent of the law makers in including items 67 and 68 to those items of the Part I of the Second Schedule to the Constitution?! A close study of these items 67 and 68 would reveal their importance. For emphasis, item 67 provides thus ‘67. Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.’. While the item 68 provides thus ‘68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list’. Nigerian Judicial precedents are clear on the rules guiding interpretation of the provisions of the Constitution thus “…where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution.”. See the case of: NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATION & ANOR. vs. ATTORNEY-GENERAL OF THE FEDERATION & ORS.(2021)LCN/14984(CA). in this case too, the construction of the items 67 and 68 of the Exclusive Legislative List was interpreted in relation to the issue as to ‘Whether the National Assembly has legislative competence to legislate on matters pertaining to lottery under Items 62, 67 and 68 in the Exclusive Legislative List’. The Court of Appeal of Nigeria laid down the principles thus “Pursuant to Section 4 of the 1999 Constitution, the legislative powers of the Federal Republic of Nigeria is vested in the National Assembly to make laws for peace, order and government of the Federation with respect to any matter included in the Exclusive Legislative List and on the Concurrent legislative List. The legislative powers of the House of Assembly are also encapsulated in the said Section 4 of the Constitution which reads: 4.(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the House of Assembly of States. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say- (a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. (5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void. (6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State. (7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say– (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. (8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the Jurisdiction of a Court of law or of a judicial Tribunal established by law. (9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. See: Attorney General of Bendel State vs. Attorney General of the Federation (1981) NSCC (VOL 12) page 314 at 331 per FATAI–WILLIAMS, CJN, who categorically held that: “While on this point, it is pertinent to state that the exercise of legislative powers by the National Assembly referred to in Section 4(8) above is not only part of the legislative process of two Houses, it is also related to the mode of exercising Federal legislative power clearly set out in Sections 54, 55 and 58 of the Constitution to which I have referred earlier. Having regard to those provisions, it is my view that the legislative process commences when a Bill is introduced and first read in any of the two Houses of the National Assembly and ends when that Bill has been passed into law by those Houses and assented to by the President of the Federal Republic of Nigeria. (see: Bribery Commissioner vs. Ranasinghe (1965) AC 172 (PC) at pages 193, 195 and 197 and Gallant vs. The King (1949) 2 DLR 425 at page 428. The “exercise of legislative powers by the National Assembly”, being part of the legislative process, starts when a Bill is first introduced in any of the two Houses constituting that august body and ends at the moment before it is assented to by the President. Since the exercise of such powers “shall be subject to the jurisdiction of Courts of law and of judicial/Tribunals established by law”. I am clearly of the view, and I do so hold, that this Court has jurisdiction to hear the plaintiff’s claims. The provisions of our Constitution on the point are clear and devoid of any ambiguity.”

The contention of the Appellants is that the National Assembly could not have utilized Items 62, 67 and 68 contained in the Second Schedule, Legislative Powers Part I on the Exclusive Legislative List to enact the National Lottery Act 2005. The said items are as follows: 62. Trade and commerce, and in particular (a) trade and commerce between Nigeria and other countries including import of commodities into and export of commodities from Nigeria, and trade and commerce between the States; (b) establishment of a purchasing authority with power to acquire for export or sale in world markets such agricultural produce as may be designated by the National Assembly; (c) inspection of produce to be exported from Nigeria and the enforcement of grades and standards of quality in respect of produce so inspected; (d) establishment of a body to prescribe and enforce standards of goods and commodities offered for sale: (e) control of the prices of goods and commodities designated by the National Assembly as essential goods or commodities; and (f) registration of business names.

67. Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.
68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”. Now the common approach to interpretation of the Constitution or Statute is to adopt the literal rule of interpretation by giving the words in the Constitution or the Statute their ordinary or grammatical meaning in order to bring out the intention of the legislature. It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution, the Court or Tribunal must construe or interpret the statute or the Constitution in order to bring out plainly the real intention of the lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate design or purpose of the Constitution or statute that calls for interpretation. See: 1. HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said: “The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: *Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H; Adisa v Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR–40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D–G also per KEKERE-EKUN, JSC, who had this to say– “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 *NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3. CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588: “It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264. 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 their most reliable meaning. This is generally also true of construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal broad interpretation – see: Fawehinmi v. IG of Police & Ors. 7 NWLR (Pt. 767) 606 at 678.”. It must also be noted that a person who alleges that an Act of the National Assembly or a legislature is invalid or made outside the legislative powers conferred on it by the Constitution has the onus to prove the assertion. See: CHIEF EMMANUEL OLATUNDE LAKANMI V. PETER ADEBAYO ADENE & ORS. (2003) LPELR- 1750 (SC) 1 at per KALGO, JSC, who said: “That the Court then came to the conclusion that the appellant as plaintiff had the onus of adducing evidence to prove the invalidity or illegality of the relevant Decrees or Edicts or the order of forfeiture which divested him of his right to the property concerned before it was sold to the respondent. I agree entirely with the Court of Appeal that in the particular circumstances of this case the onus of proof lay squarely on the appellant. It did not shift and the appellant, as plaintiff, has the duty to prove that the laws or notice which took away his property from him were ineffective, null and void before he can succeed.”. It was further held in this case (i.e. NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATION & ANOR. vs. ATTORNEY-GENERAL OF THE FEDERATION & ORS (supra)) thus ‘One of the cardinal or ardent position of the law relating to interpretation of the statute is that a Court or Tribunal is not entitled to read into a law, things that are not contained in the statue or intended. A statute must be interpreted in a way that will not defeat the intention of the legislature. The words used in a statute must be given their natural and grammatical meaning. The provisions of a statute must be read communally giving important consideration to the intention of the law maker. See: 1. DR. O.A. Saraki v FRN (2016) 4 SCM 94 AT 132 G- H, Per Onnoghen, JSC now Ag. CJN.’ 2. Brittania- U Nigerian Ltd. V SPDC Ltd. & ORS (2016) 3 SCM 44 at 81 Per Ngwuta, JSC, who said ‘In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meaning.’ Whatever method of interpretation is adopted, the paramount thing is that the intention of the law maker must not be circumvented or twisted’. (Per Peter Olabisi Ige, J.C.A.). I must say that having regard to the elaborately considered decision of the Court of Appeal, I do not need to add any more as those authorities relied upon by the Court have also clearly expatiated the purport and or purpose of the items 67 and 68 of the Exclusive Legislative List! I therefore, humbly rest my case on the issue.

Nevertheless the above legal authorities and my resolution not to add more to same (especially, to avoid verbosity in this paper), I must lay down the decision of the Supreme Court of Nigeria in the case of INEC v. MUSA (2003) LPELR-24927(SC) while considering on the issue of ‘What does the legislative power of the National Assembly consist of?’. The Apex court held thus “The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”.

Furthermore, Tobi, JSC in A-G, Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H; explained on the above provisions that: “There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items. The Concurrent Legislative List contains 30 items… the Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to the House of Assembly of a State as it relates to Section 4(7) (b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”

Furthermore, on the dichotomy between Exclusive Legislative List and the Concurrent Legislative List, the Court of Appeal of Nigeria clarified this issue in the case of CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41563(CA) while considering the ‘Scope of the powers of the House of Assembly of a State’ thus  ‘A careful perusal of the Second Schedule Part 1 which deals with Legislative Powers and in particular contains the items in the Exclusive List, list “Mines and minerals including oil fields, oil mining, geological surveys and natural gas.” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore, any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.’ Also, On what a Residual Legislative Powers encapsulates, in the case of: A.G. OGUN STATE V. ABERUAGBA & ORS. (1985) 1 NWLR (PART 3) 395 at 405 C-D per BELLO, JSC, (later CJN of blessed memory) had the following to say thus: “A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of Government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”

Finally, therefore, having regard to the above, I am of the firm view that it is high time for me to rest my case here having engaged on the voyage of clarifying the doubts innate in the introductory part of this paper while I humbly conclude and submit with due respect to any contrary view to my submission that having regard to the above legal authorities referenced and relied upon, the exclusive powers of the National Assembly do not start and end on the powers listed under items 1- 66 of the Part I of the Second Schedule to the Constitution rather, having regards to items 67 and 68 of the said Part I of the Second Schedule to the Constitution and section 4 of the Constitution, such exclusive powers extend to ‘any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of the Constitution  and any matter incidental or supplementary to any matter mentioned elsewhere in the Exclusive Legislative list’. Therefore, in searching for the exclusive powers of the National Assembly, the entire provisions of the Constitution must be construed (i.e. other provisions of the Constitution elsewhere than what is provided in the Exclusive Legislative List must be considered as a whole). Furthermore, it must also be noted that a person who alleges that an Act of the National Assembly or a legislature is invalid or made outside the legislative powers conferred on it by the Constitution has the onus to prove the assertion. See: CHIEF EMMANUEL OLATUNDE LAKANMI V. PETER ADEBAYO ADENE & ORS (supra).

Email: hameed_ajibola@yahoo.com