AG Of Lagos State v. The AG Of The Federation (2003)

⦿ CASE SUMMARY OF:

Attorney-general Of Lagos State v. The Attorney-general Of The Federation (2003)

by PaulPipar

⦿ PARTIES

Attorney-General of Lagos State – Appellant

V.

The Attorney-General of the Federation – Respondent

⦿ CITATION

(2003) 12 NWLR (Pt.833);
(2003) LPELR-SC.353/2001

⦿ COURT

Supreme Court of Nigeria

⦿LEAD JUDGEMENT DELIVERED BY:

Uwais, CJN

⦿ FACT

This suit was brought by the Lagos State Government suing the Federal Government of Nigeria, averring that the Federal Government has been granting licences, and permits to organisations to build house and erect structures in Lagos State without the permission, prior knowledge, or consent of the plaintiff – Lagos State Government.

⦿ ISSUE

1. Whether Urban and Regional Planning (or Town Planning) as well as the Regulation of Physical Development are legislative matters.
2. If an affirmative answer is given to issue 1, whether Urban and Regional Planning (or Town Planning) as well as the Regulation of Physical Development in relation to any land in Lagos State are within the legislative and executive jurisdiction of the Federal Government.
3. Whether Urban and Regional Planning Decree No.88 of 1992 is not inconsistent with the provisions of section 4 of the 1999 Constitution therefore unlawful, null and void.
4. Whether the ownership rights of the federal government over land in state territories include the power to control and regulate town planning and physical development in relation to such land.
5. Whether all approvals, permits and licences granted by the 1st defendant or any of the agencies of the Federal Government for any construction, building or physical development or use of land in Lagos State without the consent of the plaintiff are not illegal, null and void.

⦿ HOLDING

1. Issue 1 is answered in the affirmative – the phrase “Urban & Regional planning” though can’t be found in any area of the Constitution is incidentally inferred in S.20 of CFRN 1999, it states: “The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.”; The Court held that the act of planning is a way of safeguarding the environment. And hence, safeguard could serve as an umbrella term for “Urban & Regional planning”. Hence, it is a legislative matter.
2. Issue 2 was also affirmed in the positive. The Court held, per Uwais, that, “in view of the effect of the provisions of section 4 subsections (2), (3) and (4)(b), section 20, Items 67 and 68 of the Exclusive Legislative List, all of the Constitution, when read together, the National Assembly as well as State Houses of Assembly have concurrent power to legislate on the subjects of urban and regional planning and also physical development.” Hence, it within the National Assembly & Houses of Assembly powers to legislate on Urban & Regional planning.
3. For issue 3, the Urban and Regional Planning Decree No. 88 of 1992, was held not to be inconsistent with the 1999 constitution. The Court held, “that the word ‘State’ in section 318 of the Constitution. No matter whichever way one looks at it, there is no gainsaying that the National Assembly has the power to legislate on safeguarding land and therefore by extension on the subject of Urban and Regional Planning. It follows then that the submission by the plaintiff and the 11th defendant that the power to legislate on ‘Urban and Regional Planning’ is residual under section 4 subsection (7) of the Constitution is clearly untenable. It then [also] follows that the National Assembly has the power to enact an Act to protect and safeguard land. Therefore, in general, the 1992 Act is not inconsistent with the Constitution. The power to protect and safeguard land is concurrent with that of State Houses of Assembly.”

Although, some sections in the 1992 decree were held to be an infraction to S.2(2) of the CFRN 1999, which espouses the spirit of Federalism. Those sections were sections that impose duties on the State Government, and other similar section. The Supreme Court, per Uwais CJN, held, “The provisions place duty on State Governments with regard to physical developments in their territories. By section 2(2) of the 1999 Constitution Nigeria shall be a Federation, and by the doctrine of federalism, which Nigeria has adopted, the autonomy of each government, which presupposes its separate existence and its independence from the control of the other governments including the Federal government, is essential to federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction by another government.”

These provisions of the Urban and Regional Decree No. 88 of 1992 Act were held to be inconsistent with the CFRN 1999: “S.3; S.1(2); S.4; S.5(b) & (c)”; and every other provision(s) that impose(s) any duty or responsibility on State and Local Government.

4. Inference should be drawn from issue 3.
5. It was held that issue 5 was too general and blanket, and hence, it can’t be granted.

Uwaifo JSC, & Umaru Onu JSC dissented.

⦿ REFERENCED

315 subsection (1) of the 1999 Constitution;
Section 13 CFRN 1999;
Section 20 CFRN 1999;
318 subsection (1) CFRN 1999;
Items 67 and 68 of the Exclusive Legislative List of the 1999 Constitution;
The Presidential Constitution of Nigeria by B. O. Nwabueze at pp. 39 42;
A.G. of Ogun State & Ors. v A.G. of the Federation & Ors. (1982) 1-2 SC 13 at pp. 72 – 73 per Udoma, JSC;

⦿ NOTABLE DICTA

By section 2(2) of the 1999 Constitution, Nigeria shall be a Federation and by the doctrine of federalism which Nigeria has adopted, the autonomy of each government, which presupposes its separate existence and its independence from the control of the other governments including the Federal government, is essential to federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction by another government. – per Uwais CJN, A.G Lagos State v. A.G Federation (2003)

It seems to me that the Decree could well be suitable for a unitary system of government. That is because, as is obvious to me, the main prop of the entire conception, formulation and layout of the Decree had as its background, a strong central command structure initiative. It might be argued that that was to be expected of a military government. Such argument would be valid only if it was clear that there had been a political decision to alter the federal system of the country. But it would be intolerably wrong to put it forward as an excuse for such a Decree if what was the general expectation and understanding, at least initially, of well-meaning Nigerian political consciousness was that the advent of the military in the administration of this country, even if for the second time, was to be regarded and endured by the generality, as a mere aberration which would be temporary in nature. Upon that lingering psyche, the Federal Military Government ought not to have extended its functions to conceive of an urban and regional planning scheme for Nigeria with the implication that it had intruded into the power of the State Governments to decide the physical planning of their States for which they would bear the financial burden squarely and take full control for its implementation as envisaged in a federal system of government. – per Uwaifo JSC, A.G Lagos State v. A.G Federation (2003)

That in national matters, power is exclusively given to the Federation while the States are generally entrusted with power in local matters; that Urban and Regional Planning power is one such example. I think that is the essence of federalism. – per Uwaifo JSC, A.G Lagos State v. A.G Federation (2003)

The provisions of section 4(4)(b) and 4(7)(b) cannot be read as if they confer concurrent legislative power on the Federation and the States. Concurrent powers are limited to the Concurrent Legislative List. That is what the 1999 Constitution provides for and I have always understood this to be so as a feature of federalism. – per Uwaifo JSC, A.G Lagos State v. A.G Federation (2003)