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A.G Lagos State v. A.G Federation (2004)

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A.G Lagos State v. A.G Federation (2004)
by PaulPipAr

Attorney General of Lagos State


Attorney General of Federation


Supreme Court

Muhammadu Lawal Uwais, CJN

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This suit was as a consequent of the then President - Olusegun Obasanjo - letter written to the Minister of Finance to withhold all allocations due to the Nigerian states, Lagos included. What necessitated the letter was the creation and conduction of election in new local government councils by the following states: Ebonyi, Katsina, Lagos, Nasarawa and Niger. In the letter written by the President, he avers, that although the State House of Assembly has power to create Local Government Councils but such must be given legal backing by the National Assembly in accordance with S.8(5) of the CFRN 1999. In the letter, the President went ahead to stipulate that, "all states should be requested to submit evidence that they have established State Joint Local Government Account in compliance with Section 162-(6) of the [1999] Constitution and also determined the basis for sharing allocations from the Federation Account due to their constituent Local Government Councils. In addition, they should also submit evidence of payment of State allocation into the State Joint Local Government Account, to enable payment of allocation to the Local Government Area Councils of each State from the Federation Account to the Joint Account."

The issues revolve around whether the Local Government Councils created by the Lagos State Government is valid; and also whether the Federal Government can withhold money meant for the Local Government Council of a State [in this context, Lagos State].

"What follows from this is that the laws enacted by Lagos State that is Law No. 5 of 2002 and the 2004 Law are both valid Laws since the House of Assembly of Lagos State has the power under sections 4 subsections (6) and (7), sections 7 subsection (1) and 8 subsection (3) of the Constitution to legislate in respect of the creation of new local government areas and local government councils which are one and the same for the purpose of section 162 subsections (3) and (5) of the Constitution. However, in the context of section 8 subsection (5) and section 3 subsection (6) such laws cannot be operative or have full effective until the National Assembly makes the necessary amendment to section 3 subsection (6) and Part 1 of the First Schedule to the Constitution. The effect of this is that the laws are valid but inchoate until the necessary steps as provided by the constitution are taken by the National Assembly."
"The constitution fully recognises the step taken that there is still one more step or hurdle to be taken or crossed by the National Assembly for the Plaintiff to actualise the creation of the new local government areas."
"President has no power vested in him (by executive or administrative action) to suspend or withhold for any period whatsoever the statutory allocation due and payable to Lagos State Government pursuant to the provision of section 162 (5) of the 1999 Constitution but in respect of the 20 Local Government Areas for the time being provided by section 3 subsection (6) of the Constitution and not the new Local Government Areas created which are not yet operative.";
Both sides reliefs succeeded in part.

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S.162(1), (3), & (5) CFRN 1999;
S.3(1), (2) & (6);
S.8(3) CFRN 1999;
First Schedule of the CFRN 1999;

Be that as it may, it should be borne in mind that we are in this cases concerned with the interpretation of the Constitution. The inconsistency and confusion notwithstanding, this court has since laid down that in interpreting the constitution we should avoid technicalities - Uwais CJN, A.G Lagos State v. A.G Federation (2005)
When those sections are read together what emerges is that the passing of a bill by a House of Assembly creating a local government area or local government council in accordance with section 8 subsection (3) of the Constitution is not enough, the state will have to go a step further by submitting returns to the National Assembly which in turn will have to amend section 3 (6) of the Constitution for the local government area to be accommodated by the Constitution. In other words, the exercise by the state House of Assembly in passing the necessary bill creating a new local government or local government area is inchoate as submitted by Chief Afe Babalola, SAN. - Uwais CJN, A.G Lagos State v. A.G Federation (2005)
With respect, whenever there is any disagreement or dispute between the Federation and the States, the avenue provided by the constitution for the settlement are, according to section 6 of the constitution the superior courts of record created by the Constitution whose judicial powers in the words of subsection (6) (b) thereof: "shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person." In other words the obligation of the President which is said to protect and defend the constitution can be exercise through the courts as provided by the constitution itself.

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