1999 Constitution Of Nigeria: An Enabling Statute Upon Which All Legislative Lists Derive Their Powers.

By Hameed Ajibola Jimoh Esq.

I have observed that at some times, some persons view all
matters of law to be only on either: the Exclusive
Legislative List or the Concurrent Legislative List or the Residual
Legislative List. Also, these persons view that any
matter not on the Exclusive Legislative List and or on the
Concurrent Legislative List, is ALWAYS and MUST be on the Residual
Legislative List. I wish to (by this paper) explain, argue and
submit that it is not at all times that matters not contained on
the Exclusive Legislative List and or on the Concurrent Legislative
List is ALWAYS and MUST be on the Residual Legislative List and I
humbly submit that the Constitution of the Federal
Republic of Nigeria, 1999 ( as amended)-herein after referred to
the Constitution- is in real sense an
enabling statute upon which all
legislative lists derive their powers and recourse must first be
had to the enabling statute (i.e. the Constitution) before recourse
can be had to any of the legislative lists for the purpose of
ascertaining legislative powers. Also, legislative powers are
delegated powers by the Constitution (itself) and therefore, the
Constitution enjoys supremacy of law, hence, this topic.

On the division of powers between the National Assembly and the
State Houses of Assembly in section 4(2),(3) and 4(6)
and (7) (a) of the Constitution, respectively, the Supreme Court
has  held as follows in the case of: Doherty v Balewa (1961)2
NSCC 248 @ 252 ‘The Federal Parliament can legislate for the
Federation only on those matters in respect of which it is
specifically empowered to legislate under the Constitution’, while
in the case of Togun v Oputa (2001)16 NWLR (pt. 740) page 597at
644, the Court of Appeal of Nigeria held as follows: ‘Nigeria is a
Federal Republic with a Constitution in which the legislative
powers of the National Assembly and the State Houses of Assembly
are clearly defined. We have the Exclusive and the Concurrent Lists
in which the National Assembly could legislate. This leaves the
State Houses of Assembly to legislate exclusively on Residual
matters not included in either the Exclusive or Concurrent Lists’.
Furthermore, on the Residual Legislative List, in the case
of: A.G. Federation v A.G. Lagos State
(2013) 16 NWLR (Part 1380) 249 SC., the Supreme Court of Nigeria
held thus: ‘Section 4 of the Constitution of the Federal Republic
of Nigeria, 1999, divides legislative powers between the National
Assembly for the Federation and the House of Assembly for the State
in the exclusive and concurrent legislative list. The National
Assembly has exclusive power to legislate for the Federal Republic
or any part thereof in respect of matters in the exclusive list.
The National Assembly also has power to legislate, though not
exclusively, on matters in the concurrent legislative list set out
in the first column of Part II of the Second Schedule to the
Constitution and on any other matter with respect to which it is
empowered to make laws. The House of Assembly of a State has power
to make laws for the State or any part thereof on any matter not
included in the exclusive legislative list, on any matter in the
concurrent legislative list and on any other matter for which it is
empowered to make laws. The House of Assembly of a State also has
exclusive power to legislate on residual matters; that is, matters
that are not in the exclusive and concurrent legislative
lists’.

Furthermore, I must emphasise that it is no doubt that Nigeria
operates a Federal System of Government where these three
Legislative Lists have been separated (vis-à-vis: the Exclusive,
the Concurrent and the Residual Lists). On what amounts to a
Federal System of government as being operated by Nigeria (named
as: The Federal Republic of Nigeria), Ese Malemi has
this to say at page 26 of his book ‘Ese Malemi, The Nigerian
Constitutional Law, Princeton Publication Co., Ikeja, Lagos,
Nigeria, First Edition, 2006, at page 26’ thus ‘A Federal System of
government is an association of free states where power is
constitutionally shared by the federal, state and local councils,
and with each tier of government exercising its constitutionally
assigned powers and functions. A federal constitution or federal
system of government is one that provides for separate structures
of government at the national, state and local councils and with
each tier having its own constitutionally assigned powers and
duties. The powers of the different tiers of government are usually
spelt out in legislative lists in the constitution of the country.
The exclusive legislative lists which is for the federal government
usually covers items such as aviation, banks, bills of exchange,
…Whilst other matters are reserved in the concurrent legislative
list in respect of which both the Federal and State governments are
free to legislate, provided that where there is a clash of laws,
the law of the federal government usually prevails because it is
the superior law, or because it has covered the ground. Thirdly,
the functions of a local government council are also clearly spelt
in the constitution. Thus, there is division of powers in the
constitution among the different tiers of government, each deriving
its powers from the constitution. A federal country usually has a
written and rigid constitution, duplication of government at all
levels of government and so forth. The Unite States of America,
which is an advanced federation is the best example of a country
running a federal system of democracy. Switzerland, Germany,
Australia, and Canada are federations. Nigeria is a growing
federation’.

Constitutional supremacy is said to be similar to constitutional
sovereignty according to Ese Malemi (of blessed memory)
in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton
Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, pages:
48-49 as he defined ‘constitutional supremacy’ thus ‘Constitutional
sovereignty or supremacy means the supremacy and bindingness of the
Constitution, which is the will of the people, on all authorities
and persons in the country’. A.G. Bendel State v A.G. Fed. & 22
Ors. (1982) All NLR 85 SC. The author further posited
that ‘the people make and own the constitution. The
constitution recognizes the people as the sovereign and the will of
the people as expressed in the constitution is supreme and
sovereign’. These statements are what I view to be
the scope of the Constitutional supremacy. In this definition of
the constitutional supremacy, there are some words that are
important to highlight, these words are: ‘peoples’
sovereignty’, ‘will of the people’, ‘expressed in the constitution
is supreme and sovereign’.

Furthermore, section 14(2)(a) of the Constitution of
the Federal Republic of Nigeria, 1999 (amended)-herein after
referred to as the Constitution- has provided that
the people are the sovereign entity and the final authority in the
country when it provides as follows ‘It is hereby,
accordingly, declared that – (a) sovereignty belongs to the people
of Nigeria from whom government through this Constitution derives
all its powers and authority;’. And this
constitutional supremacy is reechoed by the provisions of the
Constitution in section 1 of the Constitution as
follows ‘1(1) this Constitution is supreme and its provisions shall
have binding force on all authorities and persons throughout the
Federal Republic of Nigeria. (2) the Federal Republic of Nigeria
shall not be governed, nor shall any person or group of persons
take control of the government of Nigeria or any part thereof,
except in accordance with the provisions of this Constitution. (3)
If any other law is inconsistent with the provisions of this
constitution, this constitution shall prevail, and that other law
shall to the extent of the inconsistency be void’.
This in my humble view means that whatever that is done by any
person or authority against the will of the people or in other
words, against the constitution shall to such extent of its
inconsistency be void.

Furthermore, constitutional supremacy is no doubt a
principle/concept of a democracy. The word ‘Democracy’
according to President Abraham Lincoln, the then President of the
United States of America, is ‘a government of the people, by the
people and for the people’. In other words,
‘Democracy’ is: (i) a government made up of the
generality or representatives of the people; (ii) a government
formed and installed by the people; and (iii) a government that
exists for the welfare of the people’. See: Ese Malemi,
The Nigerian Constitutional Law, Princeton Publication Co., Ikeja,
Lagos, Nigeria, First Edition, 2006, page: 30. There
is no doubt that in Nigeria, as of the moment, the types of
democracy practiced is ‘the Indirect/Representative
Democracy,’ which is a system of democracy where all persons
of voting age are expected to vote to form the government by
electing persons into government who will represent and act on
their behalf, especially in the executive and legislative arms of
government, which elected persons are expected to properly
constitute all the other organs and agencies of government, and
generally manage the affairs of government for the welfare of the
people’. See: Ese Malemi (op cit) at page
31. As has been said above, government is then a
joint function of: (i) the Executive; (ii) Legislature; (iii) and
the Judiciary.

In explanation of the nature of an enabling statute, the Supreme
Court of Nigeria in the case of OBASANJO & ORS v. YUSUF
& ANOR (2004) LPELR-2151(SC) held thus
“The applicable law in an action or matter is the
enabling law. It is the driving force of the action or matter, in
the sense that it gives birth to the action or matter. The duty of
the Court is to interpret that enabling law because it is the
‘king’ of the action or matter, if I may put it generically.” Per
NIKI TOBI, JSC (Pp 57 – 57 Paras D – E).

The constitution of Nigeria is written. This is relevant because
it is possible to point to the document called the constitution. It
is the fundamental, basic or organic law in the land, which lays
down the foundation and the structure of the political society in
which it operates. In the case of KALU v. ODILI & ORS
(1992) LPELR-1653(SC) “It is both a fundamental and elementary
principle of our law that the Constitution is the basic law of the
land. It is the Supreme law and its provisions have binding force
on all authorities, institutions and persons throughout the country
– S.1(1). All other laws derive their force and authority from the
Constitution.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 68 – 68
Paras C – D). The Constitution of the
Federal Republic of Nigeria 1999 regulates the
distribution of legislative powers between the National Assembly,
which has power to make laws for the Federation and the House of
Assembly for each State of the Federation. Hence, while the
Constitution contains some provisions which are not in any of the
three legislative lists, these provisions provided in the
Constitution enjoy constitutional supremacy over any other law made
under the use of either of the legislative lists and enjoys
exclusivity. Therefore, the Constitution
being the basic law of the land, must not be deviated from except
as allowed by itself (i.e. the Constitution). For instance, issues
of Islamic Personal Law and establishment of Sharia Courts of
Appeal having been exclusively provided by the Constitution, enjoys
constitutional supremacy and therefore, contrary to some views, the
subject matter of Islamic Personal Law and establishment of Islamic
courts is and or are not in either Exclusive Legislative List or
the Concurrent Legislative List or the Residual Legislative
List.

Finally, therefore, I am of the firm view that the Constitution
is and remains the basic law and recourse of law must first be had
to the Constitution before having recourse to any other law and the
Constitution is and remains an enabling legislative law taking
supremacy and priority over the three known legislative lists
vis-à-vis: the Exclusive; the Concurrent; and the Residual
Legislative List.

Email: hameed_ajibola@yahoo.com^[1]

By Hameed Ajibola Jimoh Esq.

I have observed that at some times, some persons view all
matters of law to be only on either: the Exclusive
Legislative List or the Concurrent Legislative List or the Residual
Legislative List. Also, these persons view that any
matter not on the Exclusive Legislative List and or on the
Concurrent Legislative List, is ALWAYS and MUST be on the Residual
Legislative List. I wish to (by this paper) explain, argue and
submit that it is not at all times that matters not contained on
the Exclusive Legislative List and or on the Concurrent Legislative
List is ALWAYS and MUST be on the Residual Legislative List and I
humbly submit that the Constitution of the Federal
Republic of Nigeria, 1999 ( as amended)-herein after referred to
the Constitution- is in real sense an
enabling statute upon which all
legislative lists derive their powers and recourse must first be
had to the enabling statute (i.e. the Constitution) before recourse
can be had to any of the legislative lists for the purpose of
ascertaining legislative powers. Also, legislative powers are
delegated powers by the Constitution (itself) and therefore, the
Constitution enjoys supremacy of law, hence, this topic.

On the division of powers between the National Assembly and the
State Houses of Assembly in section 4(2),(3) and 4(6)
and (7) (a) of the Constitution, respectively, the Supreme Court
has  held as follows in the case of: Doherty v Balewa (1961)2
NSCC 248 @ 252 ‘The Federal Parliament can legislate for the
Federation only on those matters in respect of which it is
specifically empowered to legislate under the Constitution’, while
in the case of Togun v Oputa (2001)16 NWLR (pt. 740) page 597at
644, the Court of Appeal of Nigeria held as follows: ‘Nigeria is a
Federal Republic with a Constitution in which the legislative
powers of the National Assembly and the State Houses of Assembly
are clearly defined. We have the Exclusive and the Concurrent Lists
in which the National Assembly could legislate. This leaves the
State Houses of Assembly to legislate exclusively on Residual
matters not included in either the Exclusive or Concurrent Lists’.
Furthermore, on the Residual Legislative List, in the case
of: A.G. Federation v A.G. Lagos State
(2013) 16 NWLR (Part 1380) 249 SC., the Supreme Court of Nigeria
held thus: ‘Section 4 of the Constitution of the Federal Republic
of Nigeria, 1999, divides legislative powers between the National
Assembly for the Federation and the House of Assembly for the State
in the exclusive and concurrent legislative list. The National
Assembly has exclusive power to legislate for the Federal Republic
or any part thereof in respect of matters in the exclusive list.
The National Assembly also has power to legislate, though not
exclusively, on matters in the concurrent legislative list set out
in the first column of Part II of the Second Schedule to the
Constitution and on any other matter with respect to which it is
empowered to make laws. The House of Assembly of a State has power
to make laws for the State or any part thereof on any matter not
included in the exclusive legislative list, on any matter in the
concurrent legislative list and on any other matter for which it is
empowered to make laws. The House of Assembly of a State also has
exclusive power to legislate on residual matters; that is, matters
that are not in the exclusive and concurrent legislative
lists’.

Furthermore, I must emphasise that it is no doubt that Nigeria
operates a Federal System of Government where these three
Legislative Lists have been separated (vis-à-vis: the Exclusive,
the Concurrent and the Residual Lists). On what amounts to a
Federal System of government as being operated by Nigeria (named
as: The Federal Republic of Nigeria), Ese Malemi has
this to say at page 26 of his book ‘Ese Malemi, The Nigerian
Constitutional Law, Princeton Publication Co., Ikeja, Lagos,
Nigeria, First Edition, 2006, at page 26’ thus ‘A Federal System of
government is an association of free states where power is
constitutionally shared by the federal, state and local councils,
and with each tier of government exercising its constitutionally
assigned powers and functions. A federal constitution or federal
system of government is one that provides for separate structures
of government at the national, state and local councils and with
each tier having its own constitutionally assigned powers and
duties. The powers of the different tiers of government are usually
spelt out in legislative lists in the constitution of the country.
The exclusive legislative lists which is for the federal government
usually covers items such as aviation, banks, bills of exchange,
…Whilst other matters are reserved in the concurrent legislative
list in respect of which both the Federal and State governments are
free to legislate, provided that where there is a clash of laws,
the law of the federal government usually prevails because it is
the superior law, or because it has covered the ground. Thirdly,
the functions of a local government council are also clearly spelt
in the constitution. Thus, there is division of powers in the
constitution among the different tiers of government, each deriving
its powers from the constitution. A federal country usually has a
written and rigid constitution, duplication of government at all
levels of government and so forth. The Unite States of America,
which is an advanced federation is the best example of a country
running a federal system of democracy. Switzerland, Germany,
Australia, and Canada are federations. Nigeria is a growing
federation’.

Constitutional supremacy is said to be similar to constitutional
sovereignty according to Ese Malemi (of blessed memory)
in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton
Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, pages:
48-49 as he defined ‘constitutional supremacy’ thus ‘Constitutional
sovereignty or supremacy means the supremacy and bindingness of the
Constitution, which is the will of the people, on all authorities
and persons in the country’. A.G. Bendel State v A.G. Fed. & 22
Ors. (1982) All NLR 85 SC. The author further posited
that ‘the people make and own the constitution. The
constitution recognizes the people as the sovereign and the will of
the people as expressed in the constitution is supreme and
sovereign’. These statements are what I view to be
the scope of the Constitutional supremacy. In this definition of
the constitutional supremacy, there are some words that are
important to highlight, these words are: ‘peoples’
sovereignty’, ‘will of the people’, ‘expressed in the constitution
is supreme and sovereign’.

Furthermore, section 14(2)(a) of the Constitution of
the Federal Republic of Nigeria, 1999 (amended)-herein after
referred to as the Constitution- has provided that
the people are the sovereign entity and the final authority in the
country when it provides as follows ‘It is hereby,
accordingly, declared that – (a) sovereignty belongs to the people
of Nigeria from whom government through this Constitution derives
all its powers and authority;’. And this
constitutional supremacy is reechoed by the provisions of the
Constitution in section 1 of the Constitution as
follows ‘1(1) this Constitution is supreme and its provisions shall
have binding force on all authorities and persons throughout the
Federal Republic of Nigeria. (2) the Federal Republic of Nigeria
shall not be governed, nor shall any person or group of persons
take control of the government of Nigeria or any part thereof,
except in accordance with the provisions of this Constitution. (3)
If any other law is inconsistent with the provisions of this
constitution, this constitution shall prevail, and that other law
shall to the extent of the inconsistency be void’.
This in my humble view means that whatever that is done by any
person or authority against the will of the people or in other
words, against the constitution shall to such extent of its
inconsistency be void.

Furthermore, constitutional supremacy is no doubt a
principle/concept of a democracy. The word ‘Democracy’
according to President Abraham Lincoln, the then President of the
United States of America, is ‘a government of the people, by the
people and for the people’. In other words,
‘Democracy’ is: (i) a government made up of the
generality or representatives of the people; (ii) a government
formed and installed by the people; and (iii) a government that
exists for the welfare of the people’. See: Ese Malemi,
The Nigerian Constitutional Law, Princeton Publication Co., Ikeja,
Lagos, Nigeria, First Edition, 2006, page: 30. There
is no doubt that in Nigeria, as of the moment, the types of
democracy practiced is ‘the Indirect/Representative
Democracy,’ which is a system of democracy where all persons
of voting age are expected to vote to form the government by
electing persons into government who will represent and act on
their behalf, especially in the executive and legislative arms of
government, which elected persons are expected to properly
constitute all the other organs and agencies of government, and
generally manage the affairs of government for the welfare of the
people’. See: Ese Malemi (op cit) at page
31. As has been said above, government is then a
joint function of: (i) the Executive; (ii) Legislature; (iii) and
the Judiciary.

In explanation of the nature of an enabling statute, the Supreme
Court of Nigeria in the case of OBASANJO & ORS v. YUSUF
& ANOR (2004) LPELR-2151(SC) held thus
“The applicable law in an action or matter is the
enabling law. It is the driving force of the action or matter, in
the sense that it gives birth to the action or matter. The duty of
the Court is to interpret that enabling law because it is the
‘king’ of the action or matter, if I may put it generically.” Per
NIKI TOBI, JSC (Pp 57 – 57 Paras D – E).

The constitution of Nigeria is written. This is relevant because
it is possible to point to the document called the constitution. It
is the fundamental, basic or organic law in the land, which lays
down the foundation and the structure of the political society in
which it operates. In the case of KALU v. ODILI & ORS
(1992) LPELR-1653(SC) “It is both a fundamental and elementary
principle of our law that the Constitution is the basic law of the
land. It is the Supreme law and its provisions have binding force
on all authorities, institutions and persons throughout the country
– S.1(1). All other laws derive their force and authority from the
Constitution.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 68 – 68
Paras C – D). The Constitution of the
Federal Republic of Nigeria 1999 regulates the
distribution of legislative powers between the National Assembly,
which has power to make laws for the Federation and the House of
Assembly for each State of the Federation. Hence, while the
Constitution contains some provisions which are not in any of the
three legislative lists, these provisions provided in the
Constitution enjoy constitutional supremacy over any other law made
under the use of either of the legislative lists and enjoys
exclusivity. Therefore, the Constitution
being the basic law of the land, must not be deviated from except
as allowed by itself (i.e. the Constitution). For instance, issues
of Islamic Personal Law and establishment of Sharia Courts of
Appeal having been exclusively provided by the Constitution, enjoys
constitutional supremacy and therefore, contrary to some views, the
subject matter of Islamic Personal Law and establishment of Islamic
courts is and or are not in either Exclusive Legislative List or
the Concurrent Legislative List or the Residual Legislative
List.

Finally, therefore, I am of the firm view that the Constitution
is and remains the basic law and recourse of law must first be had
to the Constitution before having recourse to any other law and the
Constitution is and remains an enabling legislative law taking
supremacy and priority over the three known legislative lists
vis-à-vis: the Exclusive; the Concurrent; and the Residual
Legislative List.

Email: hameed_ajibola@yahoo.com^[1]