CASE SUMMARY OF:
A.G Of Bendel State v. A.G Of The Federation & 22 ORS (1981)
A.G of Bendel State
A.G of Federation & 22 ORS
LEAD JUDGEMENT DELIVERED BY:
Atanda Fatayi-Williams C.J.N
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
LAWYERS WHO ADVOCATED
FOR THE PLAINTIFF
Chief F.R.A. Williams, S.A.N.
FOR THE DEFENDANTS
G. O. K. Ajayi, S.A.N - 5th, 7th, 10th, 12th, 14th and 15th Defendants
Chief R. O. A. Akinjide, SAN - 1st Defendant
Chief Fani-Kayode, S.A.N - 20th & 21st Defendants
Chief Onyiuke, S.A.N - 22nd & 23rd Defendants
Pursuant to the provisions of section 149 of the Constitution of the Federal Republic of Nigeria, 1979, the President of the Federal Republic of Nigeria presented the Allocation of Revenue (Federation Account, etc.) Bill, 1980, to the National Assembly for consideration and enactment into law. According to the "Schedule of Bill Presented for Assent", the said Bill was passed by the Senate on 15th January, 1981, passed by the House of Representatives on 22nd January, 1981, and passed by the Joint Committee on finance on 29th January, 1981. Following the certificate of the Clerk of the National Assembly (the 23rd defendant), issued in accordance with section 2 subsection (1) of the Acts' Authentication Act, 1961, that the said Schedule is a true copy of the Bill passed by the National Assembly in accordance with the provisions of sections 54 and 55 of the 1979 Constitution. The President of the Federal Republic of Nigeria signified his assent to the Bill on 3rd February, 1981. Being dissatisfied with the mode and manner [with several amendments made by each Houses of the Assembly not tabled before the other house for consideration of the respective amendments before passage to the President, but rather a Joint Committee of the National Assembly sat on the bill and thereafter passed the bill to the President for assent] by which the National Assembly had exercised its legislative power in respect of the said Bill, the Government of Bendel State, as Plaintiff, commenced proceedings in the Supreme Court of Nigeria by Originating Summons against the Government of the Federation and the Government of each of the other eighteen States.
1. Whether or not the Court has jurisdiction to entertain the plaintiff/State's claims, the nature of the evidence which can be received in these proceedings, and the extent to which the Court may make use of the recorded proceedings of the National Assembly.
2. Question relating to the constitutional validity of the procedure adopted in passing into law the Allocation of Revenue (Federation Account, etc.) Bill, 1980, and the interpretation to be placed on the relevant sections of the Constitution of the Federal Republic of Nigeria, 1979, and, in particular, sections 54, 55 and 58.
3. Whether or not the plaintiff/State, by its action in receiving payments of money allocated to it under the Allocation of Revenue (Federation Account etc.) Act, 1981, is estopped from pursuing its claims in these proceedings and must therefore, be deemed to have waived its right to challenge the validity of the Act.
1. On Issue 1, the Supreme Court held, "that it has jurisdiction under section 4(8) of the 1979 Constitution to adjudicate on the exercise of legislative powers by the National Assembly, and that the jurisdiction of the Court in this regard covers not only the entire legislative process of the House of Representatives and the Senate but also relates to the mode of exercising Federal legislative power set out in sections 54, 55, and 58 of the said 1979 Constitution."; "that there is a justiciable dispute between the plaintiff (Bendel State) and the Federal Government as to whether or not the passage into law of the Allocation of Revenue (Federation Account, etc.) Bill, 1980, is lawful and constitutional and that, having regard to the provisions of sections 4 (8) and 212 (1) of the 1979 Constitution, the Court has original jurisdiction to entertain the claims of the plaintiff/State"; "that having regard to the provisions of sections 72, 73 (1)(a), (b) and (c), and 112 (a) and (b) of the Evidence Act, Cap. 62 of the 1958 Laws of the Federation of Nigeria, the record of proceedings in the National Assembly, including its journals and minutes, or of any committee there of, are relevant and admissible in evidence as public documents to prove whether or not the National Assembly complied with the express provisions of the 1979 Constitution relative to the passage into law of the Allocation of Revenue (Federation Account, etc.) Bill, 1980"; "that having regard to the wide supervisory powers over legislative actions, vested in the Court under section 4 sub section (8) of the 1979 Constitution, in so far as section 2 of the Acts' Authentiction Act, 1961, is intended to preclude the Court from going behind the certificate of the Clerk of the National Assembly to make inquiry as to the validity of an enrolled act, that section is inconsistent with the provisions of the 1979 Constitution and, to that extent, null and void.";
2. On Issue 2, the Court held, "that, generally, the Court would respect the independence of the Legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the Legislature or the mode of exercising its legislative powers; however, if the Constitution makes provisions as to the mode of exercising its legislative powers, then the Court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements"; "that a Bill, whether a money-Bill or a non-money bill, does not and cannot become a law made by the National Assembly unless and until it has been passed by the Senate, the House of Representatives and, except where the provisions of section 54 sub section (5) of the 1979 Constitution apply, assented to by the President of the Federal Republic of Nigeria"; "that section 58 (4) of the 1979 Constitution was designed to ensure that all Bills are passed into law by the two Houses of the National Assembly, and not by any Committee thereof, in the manner provided in section 54 (1), that is, by being separately passed by the Senate, the House of Representatives and, except where section 54 (5) applies, thereafter assented to by the President of the Federal Republic of Nigeria";
3. On Issue 3, the Court held, "that estoppel is an equitable doctrine which rests on substantial grounds of prejudice or change of position and not on mere technicalities"; "that it has not been shown that the Federal Government has in any way been prejudiced by reason of the fact that Bendel State has been receiving its share of the revenue under the Act in dispute or that the Federal Government has altered its position in a way that it would not have done if Bendel State had not been receiving its share of the revenue under the Act"; "that when the observance of the provisions of a Statute is required on grounds of public policy or for the benefit of the general public it cannot be waived by an individual; that since the provisions of sections 54, 55 and 58 of the 1979 Constitution for the passage of a Bill into law are made for the benefit of the Nigerian Community at large and founded on public policy for the proper exercise of the legislative power of the National Assembly, it is not open to the plaintiff/State, even if it wished to do so, to waive the right to challenge the invalidity of the Allocation of Revenue (Federation Account, etc) Act, 1981";
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S.272 of the 1979 CFRN;
S.149 (2) of the 1979 Constitution;
S.54, 55, and 58 of the said 1979 Constitution;
S.4(8) of the 1979 Constitution;
S.212 (1) of the 1979 Constitution;
Section 149 1979 CFRN;
Item 1 of the Concurrent Legislative List in Part II of the Second Schedule, 1979 Constitution;
The end of this brief.
The 1979  Constitution of Nigeria (hereinafter referred to as "the Constitution") is unique in many respects. It provides, or so it seems, for every situation which can reasonably be conceived in Nigeria. Although these are not justiciable, it provides for the country's fundamental objectives and its directive principles of State policy. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
I cannot conceive of a situation in any country with a parliamentary democracy where legislative powers generally, and those relating to money-bills in particular, could be handed over by the elected representatives of the people to a caucus of twenty-four of such elected members, no matter how eminent they may be. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
I am unable to accept this as a resolution of the differences between the version passed by the House of Representatives. Be that as it may, one thing is clear from the procedure adopted and that is that the Bill has not been passed by the National Assembly as provided for in the Constitution. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
My interpretation of the provisions of section 55 subsections (2) and (3) read together with sections 54 and 58, is this. If a joint finance committee to which a money-bill has been referred fails to resolve the differences between the two Houses over the bill, the differences should be resolved by voting at a joint session of the two Houses. If, on the other hand, the committee succeeds in resolving the differences, the new version of the Bill which will show how the differences have been resolved should be sent back to each of the two Houses for adoption. That is the only path of true parliamentary democracy. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
The assent by the President cannot, in my view, prevent the court from coming to the conclusion that the Act is a nullity. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
Neither a State nor an individual can contract out of the provisions of the Constitution. The reason for this is that a contract to do a thing which cannot be done without a violation of the law is void. - Atanda Fatayi-Williams, C.J.N., A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
...that I would treat with due respect the rules of constitutional law formulated by the courts of the common law countries as persuasive authorities where they are appropriate in construing our Constitution but I shall at all times bear in my mind that our Constitution is unique and the solutions to our constitutional problems must invariably be found within the Constitution itself or upon its construction. - Bello, J.S.C. A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
I agree with the Honourable Chief Justice of Nigeria that the Act is not an Act of the National Assembly. It was not passed as required by section 52, 54 and 55 of the Constitution. - Obaseki, JSC. A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
There was hesitation among counsel to offer a definition for "legislative process" and "exercise of legislative power." When do these begin and when do they end? The legislative process commences with the gathering of materials for legislation and ends with the enrolment Act. But the exercise of legislative power envisaged under the Constitution commences with the presentation of the Bill and 1st reading in either House of the National Assembly, and ends with the assent by the President or passing a second time with two-third majority in the National Assembly. - Obaseki, JSC. A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import of its meaning. - Obaseki, JSC. A.G Of Bendel State V. A.G Of The Federation & 22 ORS (1981)
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