ATT-GEN. BENDEL STATE V. ATT-GEN. FEDERATION & ORS.

• Pages: 181-226

ATT-GEN. BENDEL STATE V. ATT-GEN. FEDERATION & ORS.

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181

ATT-GEN. BENDEL STATE V. ATT-GEN.

FEDERATION & ORS.

A-G. OF BENDEL STATE

V

A-G. OF THE FED. & 18 ORS

SUPREME COURT OF NIGERIA

SOWEMIMO,



J.S.C.

IRIKEFE,



J.S.C.

BELLO,



J.S.C.

IDIGBE,



J.S.C.

OBASEKI,



J.S.C.

ESO,



J.S.C.

UWAIS,



J.S.C.

3rd June, 1983

PLAINTIFF

DEFENDANTS

SUIT NO. SC 108/1982

Constitutional Law - Federalism - Division of constitutional powers between

Federation and States - Autonomy of States - General principle that Federal

Government precluded from unilaterally conferring powers or imposing duties

on State functionary - Applicability excluded by any express or implied

provision of the 1979 Constitution to the contrary - Revenue Allocation -

Distribution of Federation Account - Legislative powers of National Assembly

under S.149 of 1979 Constitution - Percentage for allocation to each tier of

Government prescribed by Allocation of Revenue (Federation Account etc.) Act

1981 - Provisions by Section (1) & (2) of said Act that funds out of State's

share be administered by Federal Government for extraneous purposes -

Unconstitutionality of S.2(1) and (2) re creation of funds - Validity of provisions

of S.(1) of said Act - Right of State Government to receive accurate, periodic

statement of moneys paid into Federation Account.

Practice and Procedure - Original jurisdiction of the Supreme Court - S.212, 1979

Constitution.

ISSUES:

1.

Whether the Federal Government may withhold monies due to a State in the

Federation Account under S. 149(3) of the 1979 Constitution.

2.

Whether the Federal Government has power to administer any part of the shares

accruing to a State from the Federation Account.

3.

Whether the National Assembly, in creating the funds under S.2(1)(2) of the

Allocation of Revenue (Federation Account etc) Act, No. 1, 1982, without

prescribing a formula for distribution, acted constitutionally.

4.

Whether the National Assembly may validly make an Act imposing duties on

State functionaries.

5.

Whether the National Assembly has powers under the Constitution to legislate

in respect of the allocation of the Federation Account to State Local Government

Councils.

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NIGERIAN SUPREME COURT CASES

[19831 N.S.C.C.

6.

Whether the National Assembly has powers under the Constitution to prescribe

a mode 'of distribution of funds allocated as per the above.

7.

Whether the powers of the National Assembly under S.149(6) and that of the

States Houses of Assembly under S.149(7) are concurrent.

8.

Whether S.6(1) of Act No. 1 of 1982 is Constitutional.

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5

9.

Whether the Federal Government is bound to render account periodically to

the States, of the state of the Federation Account.

FACTS:

This was an action brought under the original jurisdiction of the Supreme Court

by virtue of S.212 of the Constitution, 1979.

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10

The National Assembly, purporting to act under S.149(3) of the Constitution,

had enacted the Allocation of Revenue (Federation Account etc) Act, No. 1, of

1982, the purpose of which was to prescribe a basis for distribution of Revenue

accruing to the Federation Account between the Federal, State, and Local Gov-



ernments; and a formula for the distribution among the Statesinter

se;

the propor-

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15

tion of the total Revenue of each State to be contributed to the State Joint Local

Government Account etc.

Section 2(1) of Act No. 1, 1982 provided for the fund to be administered by the

Federal Government for the amelioration of ecological problems in any part of



Nigeria "while sub-section two thereunder, provided for "a fund to be administered

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by the Federal Government for the development of mineral producing areas in

Nigeria," and 6(1)

(supra)

provided for the establishment of a Joint Local Govern-

ment Account Allocation Committee for each State.

By various letters in that behalf, the plaintiff sought a meeting with the 1st de-

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fendant for the purpose of the ratification of those aspects of Act No. 1, 1982 which

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25

it considered unconstitutional, and failing, the plaintiff commenced this action,

seeking a declaration: that Section 2(1) of the Act, in so far as it provide, for a fund

to be administered by the Federal Government for the amelioration of ecological

problems was unconstitutional; that it was unconstitutional also, for the Act to make

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provision for a fund to be administered by the Federal Government for the devel-

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30

opment of mineral producing areas - S.2(2) Act No. 1, 1982. That in so far as

S.6(1) of Act No. 1, 1982 provides for the establishment of a Joint Local Govern-

ment Account Allocation Committee for each State it was also unconstitutional and

void.

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The plaintiffs also sought a declaration that it was entitled to receive, regular-

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35

ly, statement of moneys paid by the Federal Government into the Federation Ac-

count kept pursuant to S.149 of the Constitution. The attack by the plaintiff, on

S.6(1), Act No. 1, 1982 mentioned above was on the basis that it imposed duties

on State functionaries in which the plaintiff thought, the National Assembly could



not validly do. After the parties had joined issues, the rest of the Attorneys-General

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of all the States were joined by direction of court as the issue to be determined

was of general importance.

HELD:

1.

That under S.149(3) of the Constitution, amounts standing to the credit of State



Governments on the Federation Account, is to be distributed among them and

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45

the provision is mandatory. The Constitution does not authorise the Federal

Government to retain any portion of the shares of the revenue due to them; and

once divided among the three tiers of Government, the State Governments

collectively become the absolute owners of their due shares.

2.

That it would normally be the prerogative of the State Governments to exercise

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full control over their respective shares from the Federation Account and it

would not be appropriate for the Federal Government to administer the share

without the authorisation of the former. This is in keeping with the fundamental

principle of Federation on the autonomy of the constituent States.

ATT-GEN. BENDEL STATE V. ATT-GEN. FEDERATION & ORS.

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183

3.

That the National Assembly in creating the funds under Act No. 1 of 1982,

purported to act under S.149(3) of the 1979 Constitution but did not prescribe

a formula for distribution as contemplated by that section. Therefore, the

creation of both funds and the authorisation of the Federal Government to

5

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administer them are

ultra vires

the National Assembly and therefore void.

4.

That the States are empowered to impose duties on Federal functionaries and

vice versa by virtue of sections 150(b), 195(4), 250(1), 251(3) and Item D of

the concurrent legislative list of the 1979 Constitution. It follows then, that in

character, the Constitution makes it possible for both the National Assembly

10

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and a State House of Assembly to impose duty or invest power in State and

Federal functionaries respectively where there is an express or implied

provision under the Constitution that gives the enabling power.

5.

That the phrase "on such terms and in such manner as may be prescribed"

occurring in S.149(4) of the 1979 Constitution, bestows on the National

15

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Assembly extensive powers to legislate in respect of the allocation of the

Federation Account to State Local Government Councils.

6.

That similar power is also given to the National Assembly under S. 149(6) of

the Constitution and Item A, para. 1(a)(iv) of the Concurrent Legislative List

thereunder, with regard to payment or distribution and "division" of the amount

20

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so allocated. Therefore, when the National Assembly enacted S.6(1) of Act No.

1 of 1982, which created Joint Local Government Account Allocation

Committees, it must have acted in the exercise of either one of these enabling

powers, and was competent to make the enactment. The establishment and the

composition of the Joint Local Government Allocation Committee are

ultra vires

25



the National Assembly and therefore valid.

7.

That the powers of the National Assembly under S.149(6) of the 1979

Constitution and those of a State House of Assembly under S.149(7) are

concurrent, and as such, laws made under the two subsections are subject to

S.4(5) of the Constitution. If therefore, any of the provisions of the Bendel State

30

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Local Government Law, 1980 is inconsistent with the provisions of Act No. 1,

1982 made by the National Assembly, the latter will prevail and the provisions

of the former, to the extent of the inconsistency, is void.

8.

That Section 6(1) of Act No. 1 of 1982 is Constitutional and valid since the

National Assembly has the power to make the enactment by virtue of the

35

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provisions of Section 149(4) and (6) of the Constitution.

9.

That the position of the Federal Government in maintaining the Federation

Account is, by virtue of S.149(1), that of a trustee for the State Governments

and the Local Government Councils of the States. It is therefore imperative for

the Federal Government to render accurate and regular account to the

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beneficiaries, of all moneys paid into the Federation Account. For it is well

settled that it is the duty of a trustee to keep an accurate account of the trust he

administers and the beneficiaries are entitled to call for information as to the

State of the trust.

OBITER:

45

Per SOWEMIMO, J.S.C.

Whenever ecological problems occur, expenditure on them cannot be esti-

mated as they are unforeseeable within the context of both the biological and so-

ciological definition of that term. Therefore, no sums of money can be estimated

under an appropriation bill.

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Such problems do not come expressly under any of the matters under States

competency under the concurrent legislative list. In order therefore, for the Federal

Government to provide funds whenever there are ecological problems in any part

of Nigeria, it will have to have recourse to expenditure either indirectly under S.75