By Abubakar D. Sani,
Esq.
![image](/2020/10/lawreport.jpg")
![image](/2021/05/lawp.jpg")
This question might come as something of a surprise to many
legal practitioners in Nigeria, but I believe that is precisely
what the Abuja Municipal Area Council Bye-law No. 14 of
2012 seeks to achieve. The said law, (whose full title is
the Shops, Kiosks, Trade License, Private Lock-up Shops and
Allied Matters Bye-Law) was purportedly enacted by the
“Legislative Arm” of the Abuja Municipal Area Council and took
effect from the 2nd day of January 2012. It is published
as Government Notice No. 100 in the Official Gazette of the Federal
Republic of Nigeria No. 124 Vol. 120, dated 9th
September 2015.
![image](/2021/01/payne-alex.jpg")
Section 1 of the Bye-Law provides that:
“As from the commencement of this Bye-Law, it shall be an
offence for any person to establish or operate workshop (sic)
or carry on any business, trade or occupation without obtaining
a license from the Area Council”. Category E of the
1st Schedule to the Bye-Law is titled
“Shops and Kiosks, Trade License Operational Permit on Business
and Commercial Premises”. “Legal
Practitioner/Chambers” are the first item in that category,
and an annual fee in the sum of N60,000 (Sixty Thousand Naira) is
charged by the Council on any legal practitioner or chambers
who/which wishes to operate within the territorial jurisdiction of
the Bye-Law, which is Wuse, Maitama, Asokoro and Garki; together,
they comprise the Abuja Municipal Area Council or AMAC.
The foregoing is contained in Section 2(1) of the
Bye-Law which provides thus: “A license may be
obtained on application and payment of the fees prescribed in the
First Schedule depending on the business category”.
Sections 3-5 of the Bye-Law are also pertinent,
and they provide as follows:
- “3(i): Any licence issued shall expire on the
31st December of the year of issue of the
licence”; - (ii): Any licence issued under Section 2(i) of this Bye-Law
shall be renewed annually on payment of a prescribed fee” - “4(i): Where it becomes evident that the necessary permit
has not been obtained by a person operating a workshop or carrying
on any business or trade as directed under the Bye-Law, the Area
Council shall on the order of the Court seal up the workshop or
business premises on (sic) which the trade is being carried
on. - “5: The Magistrate Court Shall exercise jurisdiction”
(sic).
It is self-evident that the foregoing provisions impose an
obligation on all legal practitioners operating within Wuse,
Maitama, Asokoro and Garki Districts of the FCT Abuja to pay the
said levy and obtain an operating licence from the AMAC, falling
which, they risk prosecution in a Magistrate court. The question
is: Does AMAC have that power? I believe that the said Bye-Law is
both ultra vires AMAC and inconsistent with the Legal Practitioners
Act, starting with the latter. . .
Section 2(1) of the Legal Practitioners Act,
provides that:
“Subject to the provision of this Act, a person shall be
entitled to practice as a barrister and solicitor if and only if,
his name is on the roll”.
Section 8(2) of the LPA further provides
that:
“No legal practitioner (other than such a person as is
mentioned in sub-section (3) of Section 2 of the Act) shall be
accorded the right of audience in any court in Nigeria in any year,
unless he has paid to the Registrar in respect of that year, a
practicing fee as is from time to time prescribed by the
Attorney-General of the Federation after consultation with the
Association”.
By virtue of Section 4(3) and Item 49 of the Executive
Legislative List in the 2nd Schedule to the 1999
Constitution, the National Assembly possesses the
exclusive power to regulate “professional bodies as may
designated by the National Assembly”. Paragraph 1 of
Part III of the 2nd Schedule to the
Constitution requires such designation to be effected
either through an Act or a Resolution passed by the National
Assembly. I submit that the National Assembly has exercised this
power in respect of the legal profession in Nigeria through the
Legal Practitioner Act.
By virtue of Item 68 of the Exclusive Legislative
List, this power extends to any matter incidental or
supplementary to anything mentioned in the Exclusive Legislative
List. I submit that payment of a practicing fee or operational levy
to enable a legal practitioner to practice or operate a law
chambers is ancillary to the general authority given by
Item 49 of the Exclusive Legislative List of the
Constitution to the National Assembly to designate and regulate all
professions. I further submit that the National Assembly has
already covered the field in this regard, vide Section 8(2)
of Legal Practitioners Act, as aforesaid.
In this connection, in THE HON. MIN. OF JUSTICE &
ATT-GEN OF THE FED. vs. ATT-GEN OF LAGOS STATE (2013) All
FLWR pt. 704pg. 1, the Supreme Court, per Muhammad, JSC, held
that:
“(The) doctrine of covering the field . . . is relevant in a
federalism and postulates that where a Federal Constitution or a
federal enactment has already covered a particular legislative
field, no State or even Local Government law can be enacted to
cover the same field already covered by the Constitution or the
Federal enactment.”
Accordingly, I submit that to the extent that the Bye-law
purports to prescribe operational levies for legal practitioners,
it is simply invalid – even assuming, without conceding, that AMAC
possesses the vires or competence to enact it. In making this
submission, I concede that Section 7(5) of the Constitution
provides that the main functions of Local Governments (or Area
Councils) shall be as contained in Fourth Schedule to the
Constitution. By virtue of Section 303 and Paragraph 2 of
Part II of the First Schedule to the Constitution, the
Abuja Municipal Area Council (or AMAC) is one of the six Area
Councils of the FCT, Abuja.
I, however, submit that nothing in the Constitution empowers any
Local Government or Area Council in Nigeria to regulate the legal
profession. By virtue of the maxim expressio unius est exclusio
alterius, I submit that, to the extent that the functions of
local government or area councils as stated in the Fourth
Schedule to the Constitution excludes the granting of
operational licences to legal practitioners, the said AMAC
Bye-Law No. 14 of 2012 which purports to make such
provision is simply unconstitutional and ultra vires the Abuja
Municipal Area Council, i.e., AMAC.
I believe that this view is supported by the division of
legislative powers under the Constitution between the National
Assembly and the Houses of Assembly of the 36 States of the
Federation: see Sections 4(1) & (7) of the
Constitution. Crucially, no such provision exists in the
Constitution in respect of Local Governments or Area Councils. In
other words, the Constitution does not confer legislative powers on
Local Governments or Area Councils. To that extent, I reiterate my
earlier submission that the maxim expressio unius est exclusio
alterius applies to invalidate the said AMAC Bye-Law No. 14 of
2012, purportedly enacted by the so-called “Legislative Arm” of the
Abuja Municipal Area Council.
Assuming without conceding that AMAC derived the authority to
enact the Bye-Law by way of delegation from the National Assembly
(which by virtue of Section 299(a) of the 1999 Constitution
legislates for the FCT), I submit that such delegation would be
ultra vires the National Assembly for the simple reason that power
is not conferred by the Constitution on the National Assembly. In
this regard, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE
FED. (1981) 12 NSCC 314 @ 372, the Supreme Court, per
Obaseki, JSC, opined that: “delegation by the National Assembly
of its essential law-making function is precluded by the
Constitution”; and, further that: “under a Constitution
conferring specific powers, a particular power must be granted or
it cannot be exercised.”
In relation to the FCT, Abuja, I submit that these dicta are
applicable to the National Assembly vis-à-vis Area Councils, given
that the National Assembly is the legislature of the FCT as
aforesaid. I submit that the Niger State Local Government
Edict 1976, which purports to empower Area Councils to
make Bye-Laws – including the particular Bye-Law under review
(which Edict has been adopted by the National Assembly as part of
the laws of the FCT) is an existing law under Section 315
of the Constitution. To that extent, it is clear that the
said Edict can only be valid if it is not inconsistent with the
Constitution, in the sense that its subject matter is contained in
either the Exclusive or the Concurrent Legislative Lists of the
Constitution or is otherwise one in respect of which the National
Assembly is competent to legislative upon. I submit that to the
extent that the imposition of operational levies on professional
bodies is not one of the functions conferred on a Local Government
or Area Council in the Fourth Schedule to the 1999
Constitution, the said Bye-Law is ultra vires the National
Assembly and, by implication, AMAC, notwithstanding any provisions
in the said Edict to the contrary.
It is pertinent to observe that, apart from legal practitioners,
the said Bye-Law also purports to regulate other professions and
activities, and are for that reason, in my view, similarly invalid.
Those provisions (of Category E of the Bye-Law) include those
relating to the following:
- estate surveyors/valuers, architects, dentists, opticians,
engineers, media houses, and insurance, are invalid vis-à-vis
Items 49 & 33 of the Exclusive Legislative List of the
Constitution;. - banks, finance houses & bureau de change – inconsistent with
Items 6 and 15 of the Exclusive Legislative
List; - Petroleum products: inconsistent with Item 39 of the
Excusive List; - Telecommunication: inconsistent with Item 46 of the
Exclusive Legislative List; and - Pharmacist/chemists, soap/detergent and tobacco: inconsistent
with Item 21 of the Exclusive Legislative
List.
Conclusion
What better way end than by recalling the dictum of
Obaseki, JSC, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE
FED., supra, to the effect that under a
Constitution conferring specific powers, a particular power must be
granted, otherwise, it cannot be exercised. I submit that this is
but an amplification of the trite principle of constitutional law
laid down in DOHERTY vs.
BALEWA (1961) 2 NSCC 248 @ 251, where the apex
court, per Ademola, CJF, held that: “The Federal Parliament can
legislate for the Federation only on those matters in respect of
which its specifically empowered to legislate under the
Constitution.”
In a nutshell, therefore, I submit that the said AMAC
Bye-Law No. 14 of 2012 is invalid, null and void because
it is inconsistent with the 1999 Constitution, and
the fact that the National Assembly has already covered the field
in terms of operational levies for legal practitioners in Nigeria
vide Section 8(2) of the Legal Practitioners
Act.
Writeen By Abubakar D. Sani, Esq.
By Abubakar D. Sani,
Esq.
This question might come as something of a surprise to many
legal practitioners in Nigeria, but I believe that is precisely
what the Abuja Municipal Area Council Bye-law No. 14 of
2012 seeks to achieve. The said law, (whose full title is
the Shops, Kiosks, Trade License, Private Lock-up Shops and
Allied Matters Bye-Law) was purportedly enacted by the
“Legislative Arm” of the Abuja Municipal Area Council and took
effect from the 2nd day of January 2012. It is published
as Government Notice No. 100 in the Official Gazette of the Federal
Republic of Nigeria No. 124 Vol. 120, dated 9th
September 2015.
Section 1 of the Bye-Law provides that:
“As from the commencement of this Bye-Law, it shall be an
offence for any person to establish or operate workshop (sic)
or carry on any business, trade or occupation without obtaining
a license from the Area Council”. Category E of the
1st Schedule to the Bye-Law is titled
“Shops and Kiosks, Trade License Operational Permit on Business
and Commercial Premises”. “Legal
Practitioner/Chambers” are the first item in that category,
and an annual fee in the sum of N60,000 (Sixty Thousand Naira) is
charged by the Council on any legal practitioner or chambers
who/which wishes to operate within the territorial jurisdiction of
the Bye-Law, which is Wuse, Maitama, Asokoro and Garki; together,
they comprise the Abuja Municipal Area Council or AMAC.
The foregoing is contained in Section 2(1) of the
Bye-Law which provides thus: “A license may be
obtained on application and payment of the fees prescribed in the
First Schedule depending on the business category”.
Sections 3-5 of the Bye-Law are also pertinent,
and they provide as follows:
- “3(i): Any licence issued shall expire on the
31st December of the year of issue of the
licence”; - (ii): Any licence issued under Section 2(i) of this Bye-Law
shall be renewed annually on payment of a prescribed fee” - “4(i): Where it becomes evident that the necessary permit
has not been obtained by a person operating a workshop or carrying
on any business or trade as directed under the Bye-Law, the Area
Council shall on the order of the Court seal up the workshop or
business premises on (sic) which the trade is being carried
on. - “5: The Magistrate Court Shall exercise jurisdiction”
(sic).
It is self-evident that the foregoing provisions impose an
obligation on all legal practitioners operating within Wuse,
Maitama, Asokoro and Garki Districts of the FCT Abuja to pay the
said levy and obtain an operating licence from the AMAC, falling
which, they risk prosecution in a Magistrate court. The question
is: Does AMAC have that power? I believe that the said Bye-Law is
both ultra vires AMAC and inconsistent with the Legal Practitioners
Act, starting with the latter. . .
Section 2(1) of the Legal Practitioners Act,
provides that:
“Subject to the provision of this Act, a person shall be
entitled to practice as a barrister and solicitor if and only if,
his name is on the roll”.
Section 8(2) of the LPA further provides
that:
“No legal practitioner (other than such a person as is
mentioned in sub-section (3) of Section 2 of the Act) shall be
accorded the right of audience in any court in Nigeria in any year,
unless he has paid to the Registrar in respect of that year, a
practicing fee as is from time to time prescribed by the
Attorney-General of the Federation after consultation with the
Association”.
By virtue of Section 4(3) and Item 49 of the Executive
Legislative List in the 2nd Schedule to the 1999
Constitution, the National Assembly possesses the
exclusive power to regulate “professional bodies as may
designated by the National Assembly”. Paragraph 1 of
Part III of the 2nd Schedule to the
Constitution requires such designation to be effected
either through an Act or a Resolution passed by the National
Assembly. I submit that the National Assembly has exercised this
power in respect of the legal profession in Nigeria through the
Legal Practitioner Act.
By virtue of Item 68 of the Exclusive Legislative
List, this power extends to any matter incidental or
supplementary to anything mentioned in the Exclusive Legislative
List. I submit that payment of a practicing fee or operational levy
to enable a legal practitioner to practice or operate a law
chambers is ancillary to the general authority given by
Item 49 of the Exclusive Legislative List of the
Constitution to the National Assembly to designate and regulate all
professions. I further submit that the National Assembly has
already covered the field in this regard, vide Section 8(2)
of Legal Practitioners Act, as aforesaid.
In this connection, in THE HON. MIN. OF JUSTICE &
ATT-GEN OF THE FED. vs. ATT-GEN OF LAGOS STATE (2013) All
FLWR pt. 704pg. 1, the Supreme Court, per Muhammad, JSC, held
that:
“(The) doctrine of covering the field . . . is relevant in a
federalism and postulates that where a Federal Constitution or a
federal enactment has already covered a particular legislative
field, no State or even Local Government law can be enacted to
cover the same field already covered by the Constitution or the
Federal enactment.”
Accordingly, I submit that to the extent that the Bye-law
purports to prescribe operational levies for legal practitioners,
it is simply invalid – even assuming, without conceding, that AMAC
possesses the vires or competence to enact it. In making this
submission, I concede that Section 7(5) of the Constitution
provides that the main functions of Local Governments (or Area
Councils) shall be as contained in Fourth Schedule to the
Constitution. By virtue of Section 303 and Paragraph 2 of
Part II of the First Schedule to the Constitution, the
Abuja Municipal Area Council (or AMAC) is one of the six Area
Councils of the FCT, Abuja.
I, however, submit that nothing in the Constitution empowers any
Local Government or Area Council in Nigeria to regulate the legal
profession. By virtue of the maxim expressio unius est exclusio
alterius, I submit that, to the extent that the functions of
local government or area councils as stated in the Fourth
Schedule to the Constitution excludes the granting of
operational licences to legal practitioners, the said AMAC
Bye-Law No. 14 of 2012 which purports to make such
provision is simply unconstitutional and ultra vires the Abuja
Municipal Area Council, i.e., AMAC.
I believe that this view is supported by the division of
legislative powers under the Constitution between the National
Assembly and the Houses of Assembly of the 36 States of the
Federation: see Sections 4(1) & (7) of the
Constitution. Crucially, no such provision exists in the
Constitution in respect of Local Governments or Area Councils. In
other words, the Constitution does not confer legislative powers on
Local Governments or Area Councils. To that extent, I reiterate my
earlier submission that the maxim expressio unius est exclusio
alterius applies to invalidate the said AMAC Bye-Law No. 14 of
2012, purportedly enacted by the so-called “Legislative Arm” of the
Abuja Municipal Area Council.
Assuming without conceding that AMAC derived the authority to
enact the Bye-Law by way of delegation from the National Assembly
(which by virtue of Section 299(a) of the 1999 Constitution
legislates for the FCT), I submit that such delegation would be
ultra vires the National Assembly for the simple reason that power
is not conferred by the Constitution on the National Assembly. In
this regard, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE
FED. (1981) 12 NSCC 314 @ 372, the Supreme Court, per
Obaseki, JSC, opined that: “delegation by the National Assembly
of its essential law-making function is precluded by the
Constitution”; and, further that: “under a Constitution
conferring specific powers, a particular power must be granted or
it cannot be exercised.”
In relation to the FCT, Abuja, I submit that these dicta are
applicable to the National Assembly vis-à-vis Area Councils, given
that the National Assembly is the legislature of the FCT as
aforesaid. I submit that the Niger State Local Government
Edict 1976, which purports to empower Area Councils to
make Bye-Laws – including the particular Bye-Law under review
(which Edict has been adopted by the National Assembly as part of
the laws of the FCT) is an existing law under Section 315
of the Constitution. To that extent, it is clear that the
said Edict can only be valid if it is not inconsistent with the
Constitution, in the sense that its subject matter is contained in
either the Exclusive or the Concurrent Legislative Lists of the
Constitution or is otherwise one in respect of which the National
Assembly is competent to legislative upon. I submit that to the
extent that the imposition of operational levies on professional
bodies is not one of the functions conferred on a Local Government
or Area Council in the Fourth Schedule to the 1999
Constitution, the said Bye-Law is ultra vires the National
Assembly and, by implication, AMAC, notwithstanding any provisions
in the said Edict to the contrary.
It is pertinent to observe that, apart from legal practitioners,
the said Bye-Law also purports to regulate other professions and
activities, and are for that reason, in my view, similarly invalid.
Those provisions (of Category E of the Bye-Law) include those
relating to the following:
- estate surveyors/valuers, architects, dentists, opticians,
engineers, media houses, and insurance, are invalid vis-à-vis
Items 49 & 33 of the Exclusive Legislative List of the
Constitution;. - banks, finance houses & bureau de change – inconsistent with
Items 6 and 15 of the Exclusive Legislative
List; - Petroleum products: inconsistent with Item 39 of the
Excusive List; - Telecommunication: inconsistent with Item 46 of the
Exclusive Legislative List; and - Pharmacist/chemists, soap/detergent and tobacco: inconsistent
with Item 21 of the Exclusive Legislative
List.
Conclusion
What better way end than by recalling the dictum of
Obaseki, JSC, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE
FED., supra, to the effect that under a
Constitution conferring specific powers, a particular power must be
granted, otherwise, it cannot be exercised. I submit that this is
but an amplification of the trite principle of constitutional law
laid down in DOHERTY vs.
BALEWA (1961) 2 NSCC 248 @ 251, where the apex
court, per Ademola, CJF, held that: “The Federal Parliament can
legislate for the Federation only on those matters in respect of
which its specifically empowered to legislate under the
Constitution.”
In a nutshell, therefore, I submit that the said AMAC
Bye-Law No. 14 of 2012 is invalid, null and void because
it is inconsistent with the 1999 Constitution, and
the fact that the National Assembly has already covered the field
in terms of operational levies for legal practitioners in Nigeria
vide Section 8(2) of the Legal Practitioners
Act.
Writeen By Abubakar D. Sani, Esq.