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A.G Of Bendel State V. A.G Of The Federation & Ors (1983) LLJR-SC

A.G Of Bendel State V. A.G Of The Federation & Ors (1983)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

The National Assembly enacted the Allocation of Revenue (Federation Account etc.), Act, 1981 (No.1 of 1982) (hereinafter referred to as “Act No. 1 of 1982”) as contemplated by section 149 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as “the Constitution”). The object of Act No. 1 of 1982 is ascertainable from its preamble, which runs as follows:

“An Act to prescribe the basis for distribution of Revenue accruing to the Federation Account between the Federal and State Governments and the Local Government councils in the States; the formula for distribution amongst the States inter se; the proportion of the total Revenue of each State to be contributed to the State Joint Local Government Account; and for other purposes connected there with.”

By invoking the original jurisdiction of the Court under S.212 of the Constitution, the Attorney General of Bendel State commenced this suit against Attorney General of the Federation by a statement of claim in which he asked for the following:

“1. A declaration that sub-sections (1) and (2) of section 2 of the allocation of Revenue (Federation Account etc.) Act, 1981 is unconstitutional and void in so far as each of the said sub-sections makes provision for a fund to be administered by the Federal Government.

  1. A declaration that sub-section (1) of section 6 of the aforesaid Act is unconstitutional and void in so far as it enacts the establishment of a body to be known as the Joint Local Government Account Allocation Committee.
  2. A declaration that the Government of Bendel State is entitled to have from time to time a true and correct statement of all moneys paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution.”

In view of the nature of the claim we directed that the Attorneys General of the rest of the 18 States of the Federation be put on notice as interested parties and this was done. At the hearing all the 18 States but six namely, Anambra, Bauchi, Benue, Kano, Kwara and Niger were represented by counsel.

The facts of the case are not in the main in dispute as the plaintiff has admitted paragraphs 9 to 13 inclusive of the first defendants’ statement of defence. Now, paragraphs 4, 5 and 6 of the statement of claim read:

“4. By a letter dated 24th February, 1982, the plaintiff complained to the (first) defendant that certain portions of sections 2 and 6 of the Revenue Allocation Act (sic) were unconstitutional and void and asked for an opportunity to discuss the matter. However the defendant failed or neglected to respond in spite of a reminder dated 11th March, 1982.

  1. The particulars of the portions of sections 2 and 6 of the Revenue Allocation Act (sic), which the plaintiff says are unconstitutional and void, are as follows:

(a) Section 2 (1) in so far as it makes provision for ‘a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria.’

(b) Section 2 (2) in so far as it makes provision for ‘a fund to be administered by the Federal Government for the development of Mineral producing areas in Nigeria.’

(c) In so far as it provides for the establishment of a Joint Local Government Account Allocation Committee for each State, section (6 (1) of the Revenue Allocation Act (sic).

  1. Since the present Administration took office in October, 1979, it had never submitted to the plaintiff any statement of moneys paid by the Federal Government into the Federation Account kept pursuant to section 149 of the Constitution of the Federal Republic of Nigeria.”

In his statement of defence, the first defendant admitted receiving the plaintiff’s letter of 24th February, 1982 and asserted that the letter was replied on 10th March, 1982. Paragraphs 5 and 6 of the statement of claim (which are quoted above) were denied and the statement of defence went on, inter alia, to make the following averments in paragraphs 9 to 13 inclusive which as hereinbefore stated, were admitted by the plaintiff:

“9. That as provided by the said Act, a Federation Account Allocation Committee had also been established to ensure that allocations due to the States from the Federation Account are paid promptly in accordance with the formula provided by the Act (No. 1 of 1982).

  1. That the plaintiff is represented by the Bendel State Commissioner for Finance in (the) said Federation Account Allocation Committee.
  2. That between the 10th and 15th of every month, the Federation Account Allocation Committee meet to confirm and approve the monthly statement of the Federation Account as submitted by the Central Bank of Nigeria.
  3. That at these meetings members of the Committee are given ample opportunity to accept or reject entries made in the statement of the Federation Account and to seek necessary clarifications.
  4. Officials of the Treasury Department, Inland Revenue Department, Nigerian National Petroleum Corporation and the Central Bank are also invited to these meetings to answer any questions or make any clarifications that may arise.”

The plaintiff adduced evidence by calling, as a witness, Mr. F. G. Omoarukhe, the Deputy Accountant-General of Bendel State, who testified to the effect that the Government of Bendel State had not been receiving, regularly, the statement of the Federation Account kept with the Central Bank of Nigeria. No other witness was called by any of the parties. I think it is pertinent at this stage to set out the provisions of Act No. 1 of 1982, which are relevant to this case. Sections 1, 2 and 6 thereof read as follows:

“1. The amount standing to the Federation Account (as specified in sub-section (1) of section 149 of the Constitution of the Federal Republic of Nigeria, 1979) shall be distributed by the Government of the Federation among the various governments in Nigeria on the following basis, that is to say:

(a) Federal Government… 55%.

(b) State Governments…35%.

(c) Local Government Councils…10%.

  1. (1) The 35 per cent specified in section 1 (b) of this Act shall be sub-divided and allocated as follows, that is as to 30.5 per cent thereof, to all the States; as to 1 per cent thereof, to be paid into a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and as to the balance of 3.5 per cent thereof, to be shared on the basis of derivation, in the manner set out in sub-section (2) below.

(2) The 3.5 per cent specified in sub-section (1) above shall be subdivided and allocated as follows, that is 2 per cent shall be paid directly to the 35 States concerned indirect proportion to the value of minerals extracted from the territory of the State and the balance of 1.5 per cent shall be paid by the Government of the Federation into a fund to be administered by the Federal Government for the development of the mineral producing areas in Nigeria, which fund shall be managed in accordance with such directions as may be issued in that behalf from time to time by the President having due regard to the value of minerals extracted from and around the particular areas.”

“6. (1) There is hereby established for each State in the Federation a body to be known as the State Joint Local Government Account Allocation Committee which shall compromise the following members, that is to say:

(a) The Commissioner charged with the responsibility for local government in the State to be Chairman thereof;

(b) The Chairman of each local government council in the State;

(c) two persons to be appointed by the Governor of the State;

(d) Two representatives of the Accountant-General of the Federation; and

(e) The Accountant-General of the State.

(2) The Permanent Secretary of the State Ministry charged with responsibility for local government or such officer as may be designated by the said Commissioner shall be the Secretary to the Committee.

(3) The functions of the Committee shall be to ensure that allocations made to the local government councils in the State from the Federation Account and from the State concerned are promptly paid into the State Joint Local Government and distributed to local government councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State.”

In section 149, the Constitution provides:

See also  O. Thompson Oke & Anor v. Robinson E.A Oke & Anor (1974) LLJR-SC

“149 (1) The Federation shall maintain a special account to be called ‘the Federation Account into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

(2) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State governments, and the local government councils in each State, on such terms and in such manner as may be prescribed by the National Assembly.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

(4) The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the States for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly.

(5) Each state shall maintain a special account to be called State Joint Local Government Account into which shall be paid all allocations to the local government councils of the State from the, Federation Account and from the Government of the State.

(6) Each State shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(7) The amount standing to the credit of the local government councils of a State shall be distributed among the local government councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.”

Furthermore, Item A, paragraph 1 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution provides, in part, as follows:

“A-Allocation of revenue, etc.

  1. Subject to the provisions of this Constitution, the National Assembly may by an Act make provisions for:

(a) The division of public revenue:

(i) between the Federation and the States,

(ii) among the States of the Federation,

(iii) between the States and Local Government Councils,

(iv) among the local government councils in the states;…”

In his address, at the close of the case for the defence, Chief Williams, learned counsel for the plaintiff canvassed the first claim for a declaration that sub-sections (1) and (2) of section 1 of Act No. 1 of 1982 are, as impugned, unconstitutional and void. He began by saying that the power of the National Assembly under section 149 of the Constitution is to divide moneys paid into the Federation Account amongst the three tiers of government, namely the Federal, State and Local Governments; and argued that the National Assembly cannot set aside any portion of the Federation Account for a purpose that is different from providing revenue to the said tiers of government. If he is wrong in this contention, he argued in the alternative, that the National Assembly cannot allocate part of the Federation Account for a purpose outside its legislative competence and submitted that where the National Assembly establishes a fund for the Federation such fund can only be augmented out of moneys payable under an Appropriation Act or Supplementary Appropriation Act. He referred to sections 74, 75 and 77 of the Constitution which respectively deal with-(1) the establishment of Consolidated Revenue Fund of the Federation (2) the authorisation of expenditure from the Consolidated Revenue Fund of the Federation and (3) the establishment of Contingencies Fund of the Federation; and submitted that if section 2 of Act No. 1 of 1982 is held to be valid it will offend against the said sections of the Constitution.

He next referred to S.149 sub-section (2) of the Constitution and said that the word “distribute” in the sub-section connotes that there should be a recipient of the amount standing to the credit of the Federation Account, that is either the Federal Government, or State Governments or State Local Governments, but not a purpose such as “ecological problem” or “development”. It was further argued that the purposes set out under S.2 sub-sections (1) and (2) of Act No.1 of 1982 are outside the Legislative Lists under the Constitution and are, therefore, beyond the competence of the National Assembly. Finally it was contended that the purposes specified under section 2 (1) and (2) of Act No. 1 of 1982 exceed the executive authority of the President of the Federal Republic of Nigeria under S.5 (1) (b) of the Constitution because, on the basis of the earlier submissions, the National Assembly cannot make law for the amelioration of ecological problems and development of mineral producing areas.

In reply, Mr. Nwadialo, learned counsel for the first defendant, drew attention to the phrase “on such terms and in such manner as may be prescribed by the National Assembly” which is numerously employed in section 149 of the Constitution. He argued that the phrase gives the National Assembly extensive power to legislate and that the power is limited only in two respects. The first limitation, he said, is that the National Assembly should not in the exercise of the power infringe on any authority, which has been given exclusively to the States by the Constitution. While the second limitation is that the allocation of revenue made under S.149 (3) of the Constitution to the States should be shared among the States only. He then categorised, into direct and indirect, the allocation of revenue from the Federation Account to the States and referred to the 30.5% mentioned in section 2 (1) of Act No.1 of 1982 as a direct allocation and the 1% together with 1.5% set aside under S.2 sub-sections (1) and (2) of the Act for the amelioration of ‘ecological problems and development of mineral producing areas as indirect allocations.

Mr. James learned Solicitor-General of Cross River State and Mr. Omokri, learned Director of Public Prosecutions of Sokoto State for the sixth and 19th defendants respectively adopted the argument of Mr. Nwadialo while the other learned counsel for the rest of the defendants by and large associated themselves with the argument of Chief Williams.

Now, section 149 of the Constitution is of special importance, and, indeed, contains the scheme for the establishment, allocation and distribution of the public revenue that constitutes “the Federation Account”. The power of the National Assembly as regards the prescription of the “terms and manner” of the allocation or distribution of the Federation Account which is mentioned in sub-sections (2), (3), (4) and (6) of S. 149 of the Constitution is undoubtedly very wide. However, we had occasion to point out in Attorney General of Bendel State v. Attorney General of the Federation and 22 Ors. (1982) 3 N.C.L.R. 1 at pp. 42, 68 and 146 that in exercising the power the National Assembly should be cautious not to infringe on the constitutional powers of the States.

The question is whether in making the provisions in section 2 subsections (1) and (2) of Act No.1 of 1982 for (1) a fund to be administered by the Federal Government for the amelioration of ecological problems in any part of Nigeria and (2) a fund to be administered by the Federal Government for the development of mineral producing areas, the National Assembly had acted ultra vires. It cannot be disputed that the purpose of the Act as shown by its preamble is to effectuate the contemplation of the Constitution under S. 149 thereof. The distribution of the Federation Account among the three tiers of government as envisaged by S. 149 (2) of the Constitution is manifested by S. 1 of Act No. 1 of 1982. Secondly, the National Assembly had intended that S. 2 of Act No.1 of 1982-part of which is now being impugned-should bring into operation the provisions of S. 149 (3) of the Constitution.

See also  M.A. Sanusi V The State (1984) LLJR-SC

The first head of the plaintiff’s claim has been canvassed by Chief Williams as if the claim is for a declaration that the National Assembly had no power to establish funds from the States’ shares of the Federation Account for the purposes of the amelioration of ecological problems and the development of mineral producing areas. But it is quite clear from paragraph 5 of the plaintiff’s statement of claim and also claim (1) in the last paragraph thereof that the plaintiff’s complaint relates merely to the funds being administered by the Federal Government. So that the issue as to the validity of the establishment of the funds does not arise. It is, indeed, elementary that parties to a suit are bound by their pleadings. The plaintiff cannot therefore canvass what he, has not pleaded. However, this being a constitutional case, it becomes necessary to waive technicalities in order to get to the heart of the matter.

By S. 149 (2) of the Constitution the amount in the Federation Account is public revenue accruing to the Federal government, State Governments and the Local Governments in each State. S. 149 (3) contemplate that the amount standing to the credit of State Governments will be distributed among them. This provision is mandatory, for the sub-section says the amount “shall be distributed”. There is no provision under S. 149 or indeed under any other part of the Constitution which expressly or impliedly authorises the Federal Government to retain on behalf of the beneficiary States any portion of the revenue due, to the States from the Federation Account.

It seems to me therefore that once the Federation Account is divided amongst the three tiers of government, the State Governments collectively become the absolute owners of the share that is allocated to them (i.e. 35 per cent). So that it would normally be their prerogative to exercise full control over the share. Consequently, it will not be appropriate for the Federal Government to administer the share without the authorisation of the State Governments. This appears to be logical and in keeping with the fundamental principle of federalism on the autonomy of the constituent States.

By the creation of the funds for the amelioration of ecological problems and the development of mineral producing areas, the National Assembly purported to exercise its power under section 149 sub-section (3) of the Constitution. It is important to point out that the National Assembly omitted to prescribe the formula by which the funds are to be distributed among the beneficiary States. This is in contrast with the 2 per cent set aside under section 2 (2) of Act No. 1 of 1982 which is to be paid directly to the States in proportion to the value of minerals extracted from their territories. In the absence of such formula the distribution of the funds in question is left to the discretion of the Federal Government. It is therefore not clear what yardstick is to be adopted by the Federal Government in distributing the funds to the States. In other words the “manner” of the distribution has not been spelt out.

From the foregoing, I am of the opinion that the National Assembly failed to keep to the contemplation of section 149 sub-section (3) of the Constitution. I therefore hold that the creation of funds from the Federation Account for the amelioration of ecological problems and the development of mineral producing areas together with the authorization of the Federal Government to administer the funds are ultra vires the National Assembly.

With regard to the second head of the plaintiff’s claim which craves for a declaration that S. 6 sub-section (1) of Act No.1 of 1982 is unconstitutional and void. Chief Williams contended that the sub-section imposes duty on the functionaries of States and is unconstitutional by reason of the decision of this Court in Attorney General of Ogun State & Ors. v. Attorney General of the Federation & Ors., (1982) 3 N.C.L.R. 168 at pp. 179, 189, 194 and 201-202. He argued further, in the alternative, that even if the sub-section does not offend the Constitution as 15 such it will still be void for its inconsistency with Bendel State Local Government Law, 1980 (No. 1 of 1980). He said that although Item A paragraph 1 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution (in particular paragraph 1 (a) (iv) thereof) empowers the National Assembly to make provisions by enactment, for the division of public revenue among the local government councils in the States, the power is subject to other provisions of the Constitution. He therefore submitted that the provisions of Item A paragraph 1 (a) (iv) of the Concurrent Legislative List conflict with the provisions of S. 149 (7) of the Constitution, and since the provisions of Item A of the Concurrent Legislative List are subject to the provisions of S. 149 (7) of the Constitution, the latter will, in view of the inconsistency, prevail over the former. In other words the provisions of Bendel State Local government Law, 1980 establishing a Joint Local Government Account Allocation Committee will prevail over those of section 0 sub-section (1) of Act No. 1 of 1982. Learned counsel for the plaintiff supported this argument by relying on the observations made by Professor D. o. Nwabueze in pp. 88 and 87 of his book. The Presidential Constitution of Nigeria.

Replying, Mr. Nwadialo said that the function of the Joint Local Government Account Allocation Committee which has been established under S. 6 sub-section (1) of Act No. 1 of 1982 is to supervise the payment of the allocation made to state, local government councils. He contended that S. 6 (1) was enacted by the National Assembly by virtue of the provisions of S. 140 (4) of the Constitution and said that the States can set-up a similar committee under the provisions of S. 149 (7) of the Constitution. He submitted that where the National Assembly makes an enactment under S. 149 (4) of the Constitution and a State House of Assembly makes a similar enactment under S. 149 (7), the Federal enactment will prevail over the State Law by virtue of the provisions of S. 4 sub-section (5) of the Constitution. He argued further that there is no conflict between Act No. 1 of 1982 and the Bendel State Local Government Law, 1980 (No. 1 of 1980) since the purpose of the former is to allocate revenue while that of the latter is to distribute it. This, he said, is what sub-sections (4) and (7) of section 149 of the Constitution contemplated.

It is significant to mention that all the counsel that appeared in this case associated themselves with the submission of Chief Williams that the composition of the Joint Local Government Account Allocation Committee as provided by S. 6 (1) of Act No.1 of 1982 is unconstitutional in view of the decision of this Court in Attorney General of Ogun State & Ors. v. Attorney General of the Federation (supra). I therefore propose to deal first with this point.

The issue that came up for the consideration of this Court (which was constituted by Fatai-Williams, C.J.N., Udoma, Irikefe, Bello. Idigbe, Eso and Aniagolu, JJ.S.C.), in Attorney General of Ogun State & Ors. v. Attorney General of the Federation (supra) was whether the President of the Federal Republic of Nigeria can, in the exercise of his powers under section 274 of the Constitution confer powers or impose duties on the Governor of a State. It was held that the President could not do so. The decision also touched on the powers of the National Assembly to undertake similar exercise.

As a general principle of constitutional law, it is implicit in the character of a federal constitution that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true federation usually involves the division and limitation of governmental power. Therefore the observations made by this Court in Attorney General of Ogun State & Ors. v. Attorney General of the Federation (supra) conform with the general principle of federalism which recognises the autonomy of States.

In the present case the question is: could the National Assembly give powers or impose duties on State functionaries I think before answering the question it will be necessary to examine, albeit briefly, the scheme of our Constitution. Although there is a clear demarcation of power under the Constitution between the Federation and the States, as is the case with most Federal Constitutions, there are however, parts of our Constitution which specifically provide for the overlapping of authority. That is to say that the States are empowered to impose duty on federal functionaries and vice versa. For instance under Item D of the Concurrent Legislative List, the National Assembly may authorise a State Government to collect tax or duty or administer law relating to capital gains, incomes or profits of persons (other than companies) and stamp duties. Similarly under sections 150 (b) and 152 of the Constitution, the Federal Government is authorised to collect such tax on duty on behalf of the States. Also under section 195 (4) of the Constitution, the Governor of a State or his Commissioner may give directions to the State Commissioner of Police who is a federal functionary. Furthermore, under section 250 (1) of the Constitution State courts are vested with jurisdiction in respect of Federal causes; and under section 251 (3) of the Constitution, the decisions of a State High Court are to be enforced in any part of the Federation by “all authorities and persons”.

See also  Frederick O. Negbenebor V. Eudora O. Negbenebor (1971) LLJR-SC

It accordingly follows that in character the Constitution makes it possible for both the National Assembly and a State House of Assembly to impose duty on 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.

As already shown the phrase “on such terms and in such manner as may be prescribed”, which is found under section 149 sub-section (4) of the Constitution, bestows on the National Assembly extensive powers to legislate in respect of the allocation of the Federation Account to State Local Government Councils. Similar power is also given to the National Assembly under section 149 sub-section (6) of the Constitution and Item A paragraph 1 (a) (iv) of the Concurrent Legislative List to legislate with regard to the payment or distribution and “division of the amount so allocated.” Therefore when the National Assembly enacted section 6 subsection (1) of Act No.1 of 1982, -Which created the State Joint Local Government Account Allocation Committee, it must have done so in the exercise of either one or all of these enabling powers.

Accordingly, I hold that the National Assembly was competent to make the enactment. The establishment and composition of the Joint Local Government Allocation Committee are intra vires the National Assembly and therefore valid.

It has been contended, in the alternative, that the provisions of Item A paragraph 1 (a) (iv) conflict with the provisions of S. 149 (7) of the Constitution because the latter vests in the State House of Assembly the power to distribute the revenue due to local government councils while the former gives the same power to the National Assembly. It was then submitted, somewhat conversely to the provisions of S. 4 (5) of the Constitution, that since the provisions of Item A paragraph 1 can only come into operation “subject to any other provisions of the Constitution” then, any law enacted under S. 149 (7) by a House of Assembly will prevail over similar enactment made by the National Assembly under Item A paragraph 1 (a) (iv). Hence, it was argued, that the provisions of Bendel State Local Government Law, 1980 (No. 1 of 1980) with regard to the composition and establishment of the Joint Local Government Allocation committee prevail over those of S. 6 of Act No. 1 of 1982.

This contention had been advanced as if S. 6 of Act No. 1 of 1982 was made by virtue of Item A paragraph 1. But there is no indication anywhere in Act No. 1 of 1982 that in enacting s. 6 thereof the National Assembly was exercising its powers under Item A paragraph 1 (a) (iv) alone or at all. Nor can it be so inferred because, as already mentioned, apart from the provisions of Item A paragraph 1 (a) (iv) the National Assembly is empowered under S. 149 sub-section (6) of the Constitution to prescribe the “terms and manner” for the payment by State Government of its contribution the revenue of State Local Government Councils. Accordingly, the powers of the National Assembly under section 149 (6) and those of a State House of Assembly under section 149 (6) and those of a State House of Assembly under section 149 (7) are concurrent. Therefore any laws made under the two sub-sections of S. 149 are subject to the provisions of section 4 sub-sections (5) of the Constitution, which reads:

“If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.”

This being so, if any of the provisions of Bendel State Local “Government Law, 1980 is inconsistent with the provisions of Act No. 1 of 1982, the provisions of the Act will prevail and the provisions of the Law will to that extent be void.

In the event, I hold that section 6 sub-section (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 provisions of section 149 subsections

(4) and (6) of the Constitution.

There remains to be considered the third head of the plaintiff’s claim. This can be disposed of briefly. It is common ground, following the plaintiff’s admission of paragraphs 9-13 of the first defendants’ statement of defence, that a body called the ‘Federation Account allocation Committee” has been set up for the purpose of distributing the amount standing to the credit of the Federation Account. Both the Federal Government and the Bendel State Government are represented on the committee. Each month the Committee meets in order to consider the allocation of the Federation Account and to confirm and approve the statement of the Federation Account as submitted by the Central Bank of Nigeria. Although officials of the Central Bank are invited to the monthly meeting there is evidence that they do not always attend. If there is any query to be made at the meeting concerning the statement no answer may be forthcoming since the officials of the Central Bank are not always present. The position of the Federal Government in maintaining the Federation Account is, by virtue of S. 149 (1) of the Constitution, is that of a trustee for the State Governments and the Local Government Councils of the States. It is settled that it is the duty of a trustee to keep a proper account of the trust he administers. And the beneficiary has a right to call upon the trustee for accurate information as to the state of the trust. Consequently, it is imperative for the Federal Government to render accurate and regular account to the beneficiaries of all moneys paid into the Federation Account when requested to do so. For these reasons I am of the view that the plaintiff’s claim in this respect is tenable and I will allow it. In the result the plaintiff’s action succeeds in part and I hereby grant the following declarations:

(1) That sub-sections (1) and (2) of section 2 of the Allocation of Revenue (Federation Account etc) Act, 1981 (No.1 of 1982) are in so far as each of the said sub-sections makes provision for a fund to be administered by the Federal Government unconstitutional and

(2) That the Government of Bendel State is entitled to have on request and within a reasonable time a true and correct statement of all moneys paid by the Federal Government into the Federation Account kept with the Central Bank of Nigeria pursuant to section 149 of the Constitution. There will be no order as to costs.


Other Citation: (1983) LCN/2189(SC)

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