On 22 November 2024 the Nigerian Supreme Court delivered a landmark judgement in the case of Attorney General of Lagos State v Attorney General of the Federation & Ors[1] that nullified the National Lottery Act[2] which hitherto established the National Lottery Regulatory Commission and regulated lottery businesses in Nigeria. Indeed, the implications of this judgment are far-reaching as it has effectively redefined the Nigerian lottery industry. This client alert highlights the implications of the Supreme Court’s judgement for States and lottery businesses in Nigeria.
Background
The Lagos State Government approached the Supreme Court of Nigeria in 2008 (in its original jurisdiction) to seek amongst other things, a declaration that based on the express provisions of sections 4 (2), (3), and 4(7)(a)&(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN”) – which vest States’ legislative assemblies with powers to legislate on subject matters outside the exclusive list – the National Assembly lacks the power to make any law to regulate or control lottery operations in Nigeria as a whole because ‘lottery’ is a residual matter.
On that basis, the Lagos State Government asked that the National Lottery Act (“Lottery Act”) be nullified for reason that it is inconsistent with the provisions of the CFRN. It also prayed the Supreme Court to issue a perpetual injunction to restrain the Federal Government of Nigeria and its agents or agencies acting on its behalf, from taking any step towards enforcing the provisions of the Lottery Act within the territory of Lagos.
In a unanimous judgement delivered by a seven-member panel on 22 November 2024, the Supreme Court agreed with the position of the Lagos State Government and granted all the reliefs sought in the suit. The Judgement effectively proscribed the application of the Lottery Act in all States except the Federal Capital Territory, Abuja (FCT) which is ordinarily within the legislative remit of the National Assembly.
Remarks on the Judgement
By Nigerian constitutional arrangement, both the National Assembly and the State Houses of Assembly have different spheres of legislative competence i.e., distinct subject matters for which they can legislate upon. Primarily, under the CFRN there are two basic legislative lists, namely: exclusive list[3] and concurrent list.[4] The exclusive list which has a total of 68 items contains subject matters that are exclusively reserved for the National Assembly to legislate upon[5], while the concurrent list which has 30 items contains subject matters that both the National and State Houses of Assembly can legislate upon.[6] However, there are subject matters that are not contained in the exclusive or concurrent list but are loosely referred to as matters not included in the exclusive legislative list[7]. These matters have over time and by judicial pronouncements, come to be known as “residual matters” or put differently, matters in the residual list. Etymologically, ‘residual’ means that which remains. In legislative or parliamentary context, therefore, residual matters are those that are neither in the exclusive or concurrent legislative list; that is, matters that are outside or are not covered by the exclusive and concurrent legislative lists.[8] What this means is that the residual list contains matters that remain after the subject matters in the exclusive and concurrent legislative lists were specified.
In the case of Attorney-General of Abia State v. Attorney-General Federation[9] the Supreme Court held that the constitutional silence on certain subject matters having not stated them under the exclusive or concurrent lists, implies that they are residual matters. The Court went on to add that by virtue of section 4(7)(a) of the CFRN it is the State and not the Federal Government that is empowered to legislate on matters that are not included in the exclusive legislative list.
Also, in AG Ogun State v. Aberuagba[10] where the Supreme Court was called upon to interpret section 4(7)(a) of the CFRN which relates to ‘residual matters’, the Court held that residual legislative powers of government are vested in States Houses of Assembly, and the Federation has no power to make laws on residual matters.[11] Similarly, in a matter between the A.-G., Lagos State v. A.-G., Federation[12] where an issue was raised as to whether the Federal Government could enact planning laws for States of the Federation, the Court held that the Federal Government cannot be allowed to enact any Act or make any regulation under any guise in competition with any State in respect of residual matters no matter the salutary nature of such a law.
Against the backdrop of these decisions, it is difficult, if not impossible to fault the recent judgement of the Supreme Court in AG Lagos State v. AG Federation, considering that lottery is not a subject matter that is listed in the exclusive or the concurrent lists. That said, our view is that the judgment is legally sound.
[1] Appeal No. SC/01/2008.
[2] National Lottery Act, 2005
[3] Part I, second schedule to the CFRN.
[4] Ibid, Part II.
[5] Section 4(2) & (3) CFRN.
[6] Sections 4(4)(a) & 4(7) (b) CFRN. Note however that where both houses legislate on an item in the list, that of the state will be inoperative while that of the National Assembly will stand as the law. This is based on the doctrine of covering the filed. See section 4(5) CFRN.
[7] See section 4(7)(a) CFRN
[8] A.-G., Abia State v. A.-G., Fed. (2006) 16 NWLR (Pt. 1005) 265.
[9] (2002) 6 NWLR (Pt. 763) 264.
[10] (2002) Vol.2 WRN 52, (1985) 1 NWLR (Pt.3) 395 at 405.
[11] Ibid, Page 77.
[12] (2003) 2 NWLR (Pt. 833) 195-196 H-A.
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