*Orders All Fees Charged Paid Into Federation Account, Holds Section 22 Of Minerals And Mining Act Imposes A Duty On Governors, Not A Power To Regulate Mining
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The Federal High Court, Abuja Judicial Division, has nullified Katsina State Executive Order No. 18 of 2021 and the Katsina State (Designation of Mining and Quarry Land) Order 2021, holding that both instruments constitute an unconstitutional usurpation of federal legislative and executive powers, are ultra vires the powers of the State Governor, and are inconsistent with both the Constitution and the Minerals and Mining Act, 2007.
The judgment was delivered on Thursday, February 5, 2026, by Hon. Justice R.N. Ofili-Atumogobia (FCIArb) in Suit No. FHC/ABJ/CS/2022, between the Honourable Attorney-General of the Federation as Plaintiff and the Government of Katsina State and the Honourable Attorney General of Katsina State as Defendants.
The Attorney-General of the Federation commenced the action by Originating Summons, supported by a 29-paragraph affidavit deposed to by a litigation officer, seeking determination of seven questions.
These were: whether the National Assembly is not the rightful legislative authority over matters in the Exclusive Legislative List; whether mining as listed in Item 39 of Part I of the Second Schedule is not within the exclusive legislative purview of the National Assembly; whether mining regulation and administration is not the sole responsibility of the Federal Government under Section 1(1-3) of the Minerals and Mining Act, 2007; whether Executive Order 18 of 2021 and the Designation of Mining and Quarry Land Order 2021 are not ultra vires the powers of then-Governor Alhaji Aminu Bello Masari; whether the Governor could lawfully make an Executive Order purporting to actualise the provisions of the Minerals and Mining Act; whether the prescription of fees payable to the State under the Order does not amount to double taxation; and whether Katsina State can prosecute any person on matters related to mining in Nigeria.
Counsel for the Attorney-General of the Federation grounded the case in constitutional supremacy, citing Umaru & Anor v. Nogilari & Ors (2015) LPELR-25612 (CA) for the proposition that the Constitution is the grundnorm from which all other laws derive validity.
The Plaintiff argued that mining falls squarely within the exclusive legislative competence of the National Assembly under Item 39 of Part I of the Second Schedule, and is governed by the Minerals and Mining Act, 2007.
On duplication, the Plaintiff contended that Sections 1 to 12 of Executive Order 18 effectively replicate the responsibilities already vested in the Minister of Mines and Steel Development under Section 4 of the Minerals and Mining Act, and that Sections 17 and 18 of the Designation Order impose additional financial obligations on quarry operators, resulting in double taxation in respect of matters already regulated federally.
Learned Senior Counsel for the Defendants, Abdul Mohammed, SAN, raised a preliminary point that Executive Order No. 18 does not constitute a law in the strict legal sense, making the Plaintiff’s invocation of the separation of powers doctrine misconceived.
Substantively, the Defendants argued that the Order was made pursuant to Section 3 of the Land Use Act, that it was duly published in the Katsina State Gazette, and that it is therefore a valid and binding administrative instrument.
Relying on the Supreme Court decision in Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, the Defendants submitted that all land in Katsina State is vested in the Governor, who holds radical title as trustee for the people and enjoys wide powers of control, management, designation, compensation, and revocation of rights of occupancy for mining purposes. They maintained that in exercising these powers the Governor was not acting as a delegate of the Federal Minister but in his own right.
They further contended that Section 22 of the Minerals and Mining Act vests exclusive authority in the Governor to revoke existing rights of occupancy over land designated for mining, exercisable without the concurrence of the Minister, and that the issuance of prescribed consent forms falls within Section 100 of the Act.
On the duplication allegation, the Defendants argued that Sections 1 to 12 of the Executive Order “merely seek to complement and collaborate with the functions of the Minister of Mines and Steel Development towards ensuring a harmonious relationship among all stakeholders in the mining sector within Katsina State.”
They also raised non-compliance with Section 141(1) of the Minerals and Mining Act, which requires disputes between mineral title holders and government to first be subjected to amicable settlement, and argued, relying on Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366, that the Plaintiff had made bare assertions about investor complaints and lost investments without adducing evidence.
Justice Ofili-Atumogobia, citing Okwuosa v. Obiora (2009) 9 NWLR (Pt. 1147) 593, exercised the court’s inherent jurisdiction to reformulate the issues, holding that the entire dispute could be resolved by determining a single overarching question: “Whether, having regard to the facts and circumstances of this suit, the Plaintiff is entitled to the declaratory and injunctive reliefs sought.”
The court began with Section 1(1) and (3) of the Constitution, holding that the Constitution is supreme and its provisions prevail over all other laws, policies, acts or instruments, and that any law or executive act inconsistent with it is void to the extent of the inconsistency. The court cited Igbinedion v. E.S.B.I.R (2017) 13 NWLR (Pt. 1583) 503 and Kanawa v. Maikaset (2007) 10 NWLR (Pt. 1042).
“Mining is expressly provided for under Item 39, Part I of the Second Schedule to the Constitution and is firmly situated on the Exclusive Legislative List. The legal implication of this constitutional allocation is clear and unambiguous: legislative authority over mines and minerals is vested exclusively in the National Assembly, to the complete exclusion of State Houses of Assembly,” the court held.
The court noted that this exclusivity is reinforced by Section 44(3) of the Constitution, which vests ownership and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria in the Federal Government, and that Sections 1(1)-(3) and 4 of the Minerals and Mining Act vest control, administration and regulation of mineral resources in the Federal Government acting through the Minister of Mines and Steel Development.
The court rejected the Defendants’ characterisation of the instrument as a mere administrative or land-use directive.
“A careful examination of the provisions of Executive Order No. 18 of 2021 reveals that the Order goes far beyond the mere designation of land. It prescribes procedures, supervisory mechanisms, and regulatory controls governing mining and quarrying activities within Katsina State. In substance and effect, therefore, the Order purports to regulate mining operations in Katsina State, a subject matter constitutionally reserved exclusively for the Federal Government,” the court held.
The court then applied the doctrine of covering the field.
“In effect, the Executive Order establishes a parallel regulatory regime in respect of mining activities, one that operates alongside, and indeed competes with, the Minerals and Mining Act. Such an arrangement is constitutionally impermissible,” the court held.
“By duplicating, qualifying, or supplementing the powers vested exclusively in the Minister under Section 4 of the Minerals and Mining Act, the Executive Order offends the doctrine of covering the field,” the court held, citing C.G. de Geophysique v. Etuk (2004) 1 NWLR (Pt. 653) 20 for the principle that the doctrine “precludes any subordinate authority from enacting or enforcing laws or policies in an area where the National Assembly has enacted a comprehensive and exhaustive regulatory framework.”
The court dismissed the Defendants’ reliance on Section 3 of the Land Use Act.
“While it is correct that a Governor holds land within the State in trust for the use and common benefit of the people, such trusteeship is neither absolute nor unfettered. The Land Use Act itself is subject to the Constitution, and the powers conferred on a Governor thereunder must be exercised in conformity with valid Federal legislation,” the court held.
“Where land is required for mining purposes, the applicable and overriding legal regime is the Minerals and Mining Act. Accordingly, the Land Use Act cannot be invoked as a backdoor means of conferring regulatory authority on States in respect of mining activities. I so hold,” the court declared.
The court drew a critical distinction on Section 22 of the Minerals and Mining Act.
“Section 22, which obliges a Governor to revoke existing rights of occupancy upon the grant of a mining title, does not confer any regulatory or supervisory authority on the State. Rather, it imposes a mandatory administrative obligation designed solely to give effect to Federally issued mining titles,” the court held.
“It cannot, by any stretch of interpretation, be construed as authorising States to independently regulate mining operations or impose additional conditions outside the Federal framework,” the court stated.
The court dismissed the Defendants’ condition-precedent objection.
“The Defendants’ objection founded on Section 141(1) of the Minerals and Mining Act is without merit. That provision contemplates private or commercial disputes between mineral title holders and government agencies. It does not extend to actions challenging the constitutionality or vires of a state instrument. Constitutional questions are matters of public law and are not subject to mandatory pre-litigation settlement,” the court held.
Citing Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, the court restated that a claimant seeking declaratory reliefs must succeed on the strength of its own case, and found that the Plaintiff had discharged that burden.
“The Plaintiff has clearly demonstrated that mining falls within the exclusive legislative and administrative competence of the Federal Government and that the impugned Executive Order constitutes a direct, continuing, and unlawful encroachment upon that competence. The continued enforcement of the Order poses a real and substantial threat to the constitutional allocation of powers and undermines the supremacy of Federal legislation in a matter reserved exclusively for the National Assembly,” the court held.
The court held that the instruments “amount to an unconstitutional usurpation of Federal Legislative and Executive powers. They are ultra vires the powers of the Governor, inconsistent with the Constitution and the Minerals and Mining Act, and consequently null and void,” citing INEC v. Musa (2003) 3 NWLR (Pt. 806) 72.
The court declared that only the National Assembly has legislative authority over items on the Exclusive Legislative List; that mining under Item 39 is solely within the legislative competence of the National Assembly; that the Minerals and Mining Act, 2007 is the appropriate law regulating mining in Nigeria; that under Section 1(1-3) of that Act the entire property and control of all mineral resources in, under or upon any land in Nigeria is vested in the Government of the Federation on behalf of the people; that Katsina State lacks the power to issue any Executive Order regulating mining under any guise whatsoever; that Executive Order 18 is an intrusion into the legislative powers of the National Assembly in breach of Section 4(3) of the Constitution; and that all funds charged as fees and other charges by Katsina State should be paid into the consolidated revenue account of the Federal Government or such designated account.
The court made an order nullifying the entire provisions of Executive Order 18 of Katsina State (Designation of Mining and Quarry Land) 2021 for being ultra vires the powers of the Governor and inconsistent with Section 4(2) of the Constitution.
The court further granted an order of perpetual injunction restraining the Defendants from further enforcing, implementing or giving effect to the provisions of the Order, “nor making any other similar orders as it relates to mining in Nigeria.”
On the double taxation question, the court answered that the prescription of fees and other charges payable to the State under the Order “does amount to double taxation.”
Ngosoo Uchegbu appeared for the Plaintiff. Abdul Mohammed, SAN, with Khalifa I. Shuaibu, Abusufyanu Abubakar and M.O. Anteyi appeared for the Defendants.
The judgment was delivered in open court on February 5, 2026, by Hon. Justice R.N. Ofili-Atumogobia, FCIArb.
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