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
