Hon. Minister For Justice And Attorney-general Of Federation V. Hon. Attorney-general Of Lagos State (2013)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
By an originating summons taken by the Federal Government as Plaintiff against Lagos State, as the Defendant, the plaintiff challenged the validity of enactment of the following laws: The Hotel Licensing Law Cap H6, Laws of Lagos State of Nigeria 2003; The Hotel Occupancy and Restaurant Consumption Law. No.30, Vol. 42, Lagos State of Nigeria official Gazette 2009 and The Hotel Licensing (Amendment) Law No. 23, Vol. 43, Lagos State of Nigeria official Gazette, July 2010.
Consequently, the following general questions were raised for determination:
- Whether the Lagos State Government and Lagos State House of Assembly can enact law in respect of any item listed under the exclusive legislative list of the Constitution of the Federal Republic of Nigeria 1999.
- Whether by virtue of the provision of Item 60(d) Part 1 of the Second Schedule of the Constitution of the Federal Republic of Nigeria which lists the regulation of tourist traffic as a legislative item under the exclusive legislative list the National Assembly is entitled to the subsequent provisions of Section 4 (2) (d) of the Nigeria Tourism Development Corporation Act Cap N137, Laws of the Federation of Nigeria 2004, which gives the Nigerian Tourism Development Corporation the right to licence, regulate, register, classify and grade Hotels, Motels, Guest Inns, Travel Agencies, Tour Operating Outfits, Resorts, Cafeterias, Restaurants, Fast Food Outlets and other related tourist establishments situated and located within the geographical boundaries of Lagos State and or the Lagos State Government can sign into law any law, to license, regulate, register, classify and grade Hotels, Motels, Guest Inn, Travel Agencies, Tour Operating Outfits, Resorts, Cafeterias, Restaurants, Fast Food out lets and other related tourist establishments situated and located within the geographical boundaries of Lagos State.
- Whether the Lagos State Government and the Lagos State House of Assembly can enact a law which directly conflicts with an existing law enacted by the National Assembly and where such law, is enacted, whether such law or enactment made by the Lagos State Government and the Lagos State House of Assembly can remain valid where such law or enactment is in conflict with an existing law or enactment made by the Federal Government of Nigeria the National Assembly.
Suffice it to note that out of these three general questions posed for the consideration is a précis of the three issues formulated by the plaintiff for determination of his claim. I shall come to this anon.
According to the plaintiff, in the event of the questions raised above are answered in the negative, they have now adumbrated their claims as follow:
“1. A Declaration that the Lagos State Government and the Lagos State House of Assembly have no power to enact a law to licence, regulate, register, classify and grade Hotels, Motels, Guest Inns, Travel Agencies, Tour Operating Outfits, Resort Cafeteriats, Restaurant, Fast Food Outlets and other related tourist establishments within the geographical boundaries of Lagos State or any place in Nigeria.
- A Declaration that by virtue of the provisions of items 60(d) Part 1 of the Second Schedule of the Constitution of the Federal Republic of Nigeria 1999 and the subsequent provisions Section 4(2) (d) of the Nigerian Tourism Development Corporation Act Cap N137 Laws of the Federation of Nigeria 2004, it is only the National Assembly that can legislate, and it is only the Nigerian Tourism Development Corporation, as established that can control matters relating or pertaining to the licensing, regulate, registration, classification and grading of hotels, motels guest inns, travel agencies tour operating outfits, resort, cafeteriats, restaurant, fast food outlets and other related tourists establishment within the geographical boundaries of Lagos State and any other place in Nigeria.
- A declaration that the following legislations, laws and enactments, that is:
“i) Hotel Licensing Law Cap H6 Laws of Lagos State of Nigeria 2003.
ii) Hotel Licensing (Amendment) Law No.23 Volume 43 Lagos State of Nigeria Official Gazette of 20th July, 2010.
iii) Hotel Occupancy and Restaurant Consumption Law No. 30 Volume 42 Lagos State of Nigeria Official Gazette of 23rd June, 2009 in as much as the said legislations Laws and enactments seek to regulate, register, classify and grade Hotels, Motels, Guest Inns, Travel Agencies, Tour Operating Outfits, Resort, Cafeterias, Restaurants, Fast Food Outlets and other related tourist establishments ARE IN CONFLICT with the provisions of Section 4(2) (d) of the Nigerian Tourism Development Act 1992 (a law enacted by the National Assembly and therefore null and void and of no effect whatsoever.
4) A Declaration that the following legislations, Laws and enactments, that is:
“i) Hotel Licencing Law Cap H6 Laws of Lagos State of Nigeria 2003.
ii) Hotel Licencing (Amendment) Law No.23 Volume 43 Lagos State of Nigeria Official Gazette of 20th July, 2010.
iii). Hotel Occupancy and Restaurant Consumption Law No. 30 Volume 42 Lagos Sate of Nigeria Official Gazette of 23rd June, 2009 in as much as the said legislations Laws and enactment seek to licence, regulate, register, classify and grade hotels, motels, guest inns, travel agencies, tour operating outfits, resort, cafeterias, restaurants fast food outlets and other related tourist establishment are conflict with the provisions of Section 4(2)(d) of the Nigerian Tourism Development Act 1992 (a law, enacted by the National Assembly) are therefore invalid being inconsistent with the provisions of Section 4(2)(3), item 60 (d) Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 and to the extent of their inconsistency, null and void of no effect whatsoever.
5) An Order of perpetual injunction restraining the Lagos State Government either by itself, its agents, privies, servants, representatives or anybody whosoever acting on it’s behalf, from further promulgating, passing into law, enacting or legislating upon issues or any matters relating to the licensing regulation, classification and grading of hotels, motels, cafeterias, restaurants, fast food outlets and other related tourist establishments and from enforcing in any manner or way through itself or any of its agencies, the following legislation:
i) Hotel Licencing Law Cap H6 Laws of Lagos State of Nigeria 2003.
ii) Hotel Licencing (Amendment) Law No.23 Volume 43 Lagos State of Nigeria Official Gazette of 20th July, 2010.
iii) Hotel Occupancy and Restaurant Consumption Law, No.30 Volume 42 Lagos State of Nigeria Official Gazette of 23rd June, 2009.
Supporting the Originating Summons is Affidavit of 22 paragraphs sworn to by one Olufunmi Oshinusi, a Legal Practitioner in the Chambers of the plaintiff’s Counsel. I deem it necessary to reproduce paragraphs 4-22 of the Affidavit as most relevant to the determination of this action.
These are as follows:
“4) That sometimes in 1992 the National Assembly enacted the Nigerian Tourism Development Corporation Act 1992 (Now CAP N137 Laws of the Federation of Nigeria 2004) and this enactment was made pursuant to the powers conferred on the National Assembly under Section 4(2) (3), item 60(d) Part 1 of the Second Schedule of the Constitution of the Federal Republic of Nigeria 1999.
5) That the Nigerian Tourism Development Corporation was established pursuant to the aforesaid Nigerian Tourism Development Corporation Act.
6) That by virtue of the provisions of the Nigerian Tourism Development Corporation Act, the Nigerian Tourism Development Corporation is Mandated to register, classify, grade and regulate all Hotels, Motels, Hospitality and tourism enterprises, travel agencies and tour operators.
7) That the Lagos State Government in 2003 promulgated and passed into law the Hotel Licencing Law, Cap H6 Laws of Lagos State of Nigeria 2003, a Law which directly conflicts with the mandate and functions of the Nigerian Tourism Development Corporation as provided for by the Nigerian Tourism Development Corporation Act particularly with Section 4(2)(d) of the Nigerian Tourism Development Corporation Act.
8) That sometime in the year 2009 the Lagos State Government caused to be published in full page advertisement it a number newspapers a public notice to hoteliers and operators of Tourism Related Establishments operating in the State that the registration of hotels and tourism and other related establishments are now the exclusive responsibility of the Lagos State Ministry of Tourism and intergovernmental relations. Now shown to me and attached herein and marked as EXHIBIT HAGF I is the publication of the National Life Newspaper of the 27th September, 2009.
9) That the public notice issued by the Defendant stated that under the Constitution of the Federal Republic of Nigeria the power of the National Assembly to regulate Tourism is limited to the establishment and regulation of authorities for the Federation or any part thereof to regulate tourist traffic.
10) That the notice further stated that the legislative power of the National Assembly does not extend to making legislation and imposition of levies to tourism facilities.
11) That the public notice by the Lagos State Government stated further that the registration, grading and classification of hotels, motels, guest inns, apartments, travel agencies, tour operating outfits, resorts, cafeterias, restaurants, fast food outlets and other related tourist establishment can only be done by the Lagos State authority or empowered in that regard by the Lagos State House of Assembly.
12) That the Lagos State Government has backed up their public notice with a legislation by promulgating the Hotel Licencing (Amendment) Law contained in No.23, Volume 43, Lagos State of Nigeria Official Gazette dated 20th July, 2010 which law, gives the Lagos State Government power to deal with the regulations, registration, classification and grading of Hotels, Motels, Hospitality and tourism enterprises, Travel Agencies, Tour Operators and other tourism related establishments. Now, shown to me is a copy of enactment as Gazetted and same is attached herein and marked as EXHIBIT HAGF II.
13) That under the Nigerian Tourism Development Corporation Act 1992 the body empowered to register, classify and grade all hospitality, and Tourism Enterprises, travel Agencies, tour operators and other establish tourist establishments is the Nigerian Tourism Development Corporation (NTDC).
14) That the action of the Lagos State Government is an attempt to usurp and undermine the statutory mandate and responsibilities of the Nigerian Tourism Development Corporation (NTDC).
15) That the action of the Lagos State Government in issuing the aforesaid public notice and promulgating the aforesaid laws also has the implication of compromising the uniformity of registration, classification and grading of hotels and other tourism facilities in Nigeria with negative implication for tourist safety and national security.
16) That realizing the adverse and negative effect of the action of Lagos State Government, the Nigerian Tourism Development Corporation issued a public notice advising all operators of hotels, motels guest inns, resorts, apartment, travel agencies tour companies cafeteria, restaurants and fasts food outlets in Lagos State to ignore and disregard the letter of notification and public notice issued by the Lagos State Government on the registration of hotels and other tourism facilities.
17) That in the public notice by the Nigerian Tourism Development Corporation, the Corporation made it clear that as a responsible Federal Government Agency, it ensures that all stakeholders are carried along in the discharge of its statutory functions, hence the setting up of a Joint Tourism Board which among other things agreed on the disbursement of registration fee charged for the administrative processes of registering hotels among the Federal, State and Local Government of which 60% goes to the state where such facilities are located.
18) That despite the steps taken by the Corporation, the Lagos State House of Assembly and the Lagos State Government in utter disregard to the functions and duties of the Nigerian Tourism Development Corporation proceeded to enact legislation to licence and regulate hotels and other related tourist establishment in Lagos State.
19) That the Lagos State Government acting through the Lagos State Commissioner for Tourism and inter Governmental Affairs Mr. Tokunbo Afikuyomi has stated that the licensing, grading of Hotels and other related tourist establishments will fully commence in October 2010. A copy of the Vanguard Newspaper where such statement was made is now shown to me and is hereby attached and marked as EXHIBIT HAGF III.
20) That the action of the Lagos State Government in enacting the legislation to licence and regulate hotels in Lagos State would not only undermine and hinder the activities and mandate of Nigerian Tourism Development Corporation but will also create confusion for operators in terms of compliance as to the legitimate regulatory authority with powers to register, classify and grade hotels and other related tourism establishments.
21) That the confusion created by the Lagos State Government in enacting legislation bill to licence and regulate hotels and other tourist establishment would damage and further worsen the country unenviable Nigeria tourism development Sector which the Corporation has in the last four years been striving to develop and reposition.
22) That unless the player sought for in this suit are granted the action of the Lagos State Government would disrupt the steady progressive development of the Nigerian Tourism Sector.”
The above depositions were challenged in the Defendants Counter-affidavit of 21 paragraphs, sworn to by one Adeola Ipaye, a Legal Practitioner and the Lagos State Governor’s Special Adviser on Taxation and Revenue. I set out paragraphs 4 – 21 of the said Counter Affidavit as follows:
“4) On the 11th day of May, 1983, during the Second Republic, the House of Assembly of Lagos Sate, in pursuance of its powers under the Constitution of the Federal Republic of Nigeria, 1979, enacted the Hotel Licensing Law (now Cap. H6 Laws of Lagos State of Nigeria 2003) to provide for the licensing of hotels in the State and for purposes connected therewith (‘the Law’).
5) Following the Military intervention of 1983, Federal Military Government suspended and subsequently amended the Constitution of the Federal Republic of Nigeria 1979.
6) In furtherance of the depositions contained in the preceding paragraph, the Federal Military Government assumed absolute powers to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
7) In exercise of the said absolute powers, the then National Assembly during the regime of General Ibrahim Babangida in 1992 enacted the Nigerian Tourism Development Corporation Act (‘the Act’) whilst the Constitution of the Federal Republic of Nigeria, 1979 remained suspended and amended in part.
8) The Act established in Nigeria Tourism development Corporation (“the Corporation”) and empowered it to, among other things, register, classify and grade all hospitality and tourism enterprises, travel agencies and tour operators in the country in such manner as may be prescribed.
9) Furthermore, the Act established for each State in the Federation, a State Tourism Board and authorizing the Governor to appoint members of the Board.
10) Contrary to the depositions contained in Paragraph 7 of the Affidavit in Support, the Law, which was enacted in 1983 and not 2003 as deposed, is to regulate the grant of licence to premises for hotel purpose only and does not contain any provision relating to the regulation of tourist traffic.
11) I know as a fact that there are far more Nigerians than foreigners using hotel facilities in Lagos State and all Nigerians have freedom of movement within the country.
12) I also know that pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999, physical planning, traffic control, kitchen hygiene, fire prevention, general health and safety, etc in hotels and other public establishments are all within the legislative competence of State Houses of Assembly.
13) In Specific response to the depositions contained in paragraphs 8 to 11 of the Affidavit in Support, the public notice caused to be published by the Defendant was in response to press advertisements published at the instance and at the behest of the Plaintiff through the Corporation in its bid to engage consultants for the registration of Hotels, Motels, Guest Inns, Apartments, Travel Agencies, Tour Operating Outfits, Resorts, Cafeterias, amongst others in Lagos State and throughout the Country. Now shown to me and marked as Exhibit LASG1 is a certified true copy of the said advertisement of the Defendant as published in The Newspaper of Friday, September 4, 2009.
14) Further to the depositions contained in the preceding paragraph, the public notice was to inform the operators of hotels and other tourism related establishments in the State of the unconstitutionality of the provisions of Section 4(2) (d) of the Nigerian Tourism Development Corporation Act in the light of the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
15) In addition to the foregoing, the Honourable Commissioner for Tourism and Inter-Governmental Relations in the Defendant State caused to be written a letter dated October 15, 2009 to the Honourable Minister for Tourism, Culture and National Orientation wherein the attention of the Minister was drawn to the fact that:” …after the enactment of the Constitution of the Federal Republic of Nigeria, 1999, the power of the National Assembly to regulate tourism in Nigeria is now governed by item 60(d) of the Exclusive Legislative List and limited to “the establishment and regulation of authorities for the Federation or any part thereof to regulate tourist traffic.” Now shown to me and marked Exhibit LASG2 is a copy of the said letter.
16) The letter referred to in the preceding paragraph (i.e. Exhibit LASG2) further requested the kind intervention of the Honourable Minister to prevent a situation whereby tourism operations are impeded by unnecessary exposure to multiple regulate authorities, levies and charges.
17) The foregoing notwithstanding, the Defendant through the Corporation caused to be published in the Thisday Newspapers of December 31, 2009 a public notice entitled: Re: Lagos State Registration of Hotels and Tourism Related Establishments and National Security wherein the Corporation ignored the clear constitutional provisions in that regard and reiterated its position that NTDC (i.e. the Corporation) was the only body with the mandate “to register, classify and grade all hospitality and tourism enterprises, travel agencies and tour operators in the country, which is without exception of any State of the Federation.” Now shown to me and marked Exhibit LASG3 is a certified true copy of the said publication.
18) Contrary to depositions contained in paragraph 12 of the Affidavit in Support of the Originating Summons, the enactment of the Lagos State Hotel Licensing (Amendment) Law of July 2010 was to extend its application to tourism establishments and not to give the Lagos State Government the power to deal with the regulation of tourist traffic.
19) In answer to the depositions contained in paragraph 14 of the affidavit in support, the action of the Defendant was in consonance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 which expressly limits the regulatory power of the Plaintiff to tourist traffic.
20) In specific response to paragraph 15 of the Affidavit in Support, the Defendant’s actions have no negative implication for tourist safety or national security and in fact are in conformity with the principles of federalism which is enshrined in the Constitution of the Federal Republic of Nigeria and which envisages the devolution of power among the federating states and not uniformity except as otherwise stated.
21) I know for a fact that:
i. The constitutional power of the Plaintiff qua the Federal Government is expressly limited to the regulation of tourism traffic in Nigeria;
ii. Only the movement of foreigner coming into Nigeria as tourists may be regulated by way of visas and limitation of periods that tourists may remain in the country.
iii. The said power does not extend to registration, classification and grading of hospitality enterprises.
iv. The enactment of the Law is in furtherance of the duty of a responsible government such as that of Lagos State to promote the well being of the resident and tourists to the State especially in the area of hospitality business.
v. The enactment of the law is to advance the course of the entire hospitality industry especially in Lagos State considering the enormous potentials of the State by virtue of its geographic advantage.
Besides the above Affidavit in Support of the Originating Summons and the Counter Affidavit in opposition, the respective Learned Counsel for the parties have formulated some issues for determination.
The Plaintiff’s issues formulated for determination are as follows:
“1) Whether the matters pertaining to tourism and other tourist related establishments falls under the exclusive legislative list of the Constitution of the Federal Republic of Nigeria 1999.
2) Whether the Lagos State House of Assembly and the Lagos State Government can enact and promulgate laws on matters within the exclusive legislative list as set out in Section 4(2) (d) 1 Second Schedule of the Constitution of the Federal Republic 1999.
3) Whether the Lagos State House of Assembly and the Lagos State Government can enact and promulgate laws which directly conflict with the provisions of an existing law of the National Assembly and if such enactment law exist whether such can supercede an existing law of the National Assembly.”
On the other hand the Defendant on its part formulated the following issues for determination in the resolving of this case:
“(i) Whether regulation, registration, classification and grading of Hotels, guest houses, motels, restaurants, travel and tour agencies and other hospitality and tourism related establishment are matters in the Exclusive and Concurrent Legislative List and outside the legislative power of Lagos State House of Assembly.
(ii) Whether the following laws of the Lagos State are invalid by reason of their inconsistency with the provision of the Nigerian tourism Development Act, Cap N.137, LFN:
(a) Hotel Licencing Law, Cap. H6 Laws of Lagos State of Nigeria, 2003;
(b) Hotel Licensing (Amendment) law No. 23 Volume 43 Lagos State of Nigeria Official Gazette of July 20, 2010 and
(c) Hotel Occupancy and restaurant Consumption Law No. 30, Volume 42 Lagos State of Nigeria Official Gazette of June 23, 2009.”
On 23rd April, 2013, this matter was heard. Learned Counsel for the plaintiff T. O. Busari, Esq. identified the Plaintiff’s Originating Summons issued out 31st August, 2010 with a supporting Affidavit of 22 paragraphs and a number of documents marked as Exhibits. He also referred to the Plaintiff’s Brief of Argument case Address which is attached to the Writ of Summons.
The fulcrum of the plaintiff’s case is that by virtue of item 60(d) of the Second Schedule part 1 of the 1999 Constitution, matters pertaining to the regulating, registration, and grading of Hotels, Motels, Guest Inns, Apartments, Tour operating outfits, Restaurants, Travel Agencies, Cafetarial, Fast Food Outlets and other tourist related establishment are under the exclusive legislative list of the 1999 Constitution. It is submitted that matters pertaining to these enumerated items come under the exclusive legislative list, therefore the Lagos State House of Assembly and the Lagos State Government have no power to legislate and promulgate laws on these matters.
According to the Plaintiff, their position is fortified by the provisions of the “Tourist Traffic Act” from other jurisdiction particularly the Tourist Traffic Act, 1939 of the Republic of Ireland which deals essentially with items such as enumerated in the exclusive legislative of the 1999 Constitution of the Federal Republic of Nigeria.
It is in the light of the above stance of the Plaintiff, that this Court is being urged to declare that: the Hotel Licensing Law Cap 116 Lagos State of Nigeria 2003, the Hotel Licensing (Amendment) Law No.23 volume 43 Lagos State of Nigeria Official Gazette of 20th July, 2010 and the Hotel Occupancy and Restaurant Consumption Law No.30 Volume 42 Lagos State of Nigeria Official Gazette of 23rd June, 2009, are illegal, null and void and of no effect whatsoever.
On his part ADEOLA IPAYE Esq., (Hon. Attorney-General) representing the Defendant referred to the Counter Affidavit and written Address of the Defendant which he adopted as his argument in the case. Learned Attorney-General has faulted the contention of the Plaintiff that the Federal Government has exclusive legislative power over tourism and that regulation of hotels, motels, restaurants, and such other hospitality ventures, is incidental or supplementary to control of tourism. He submitted that a detailed examination of the entire Constitution of the Federal Republic of Nigeria has revealed that the power of National Assembly over tourist related matters is limited to regulation of “tourist traffic” as provided in item 60(d) of the Second Schedule Part 1 of the Exclusive Legislative List and this gives the Federal Government Power to regulate “tourist traffic”. It is submitted that the contention of the Plaintiff as stated early, is to import into the 1999 Constitution what is not intended by the drafters of the Constitution. He has noted, although the expression ‘tourist traffic’ is nowhere defined in the 1999 Constitution, the resort made by the Plaintiff to the definition as contained in the Republic of Ireland’s Tourist Traffic Act of 1939 is misleading and not helpful and totally irrelevant, as the Constitutions of the two countries are dissimilar in every material respect. It is further explained that whilst the Republic of Ireland practices Unitary System of Government; where there is no delimitation of power between the Federal Government and component states; on the other hand, Nigeria as a Federal Republic, there is division of legislative power. Reliance was placed on the case of OGUGU v. THE STATE 9 NWLR (pt.366) 1 at 43, particularly on the admonition of this court as regards “borrowing” of definition or interpretation from other countries which have no constitutional provision similar or “resembling our own”.
The foregoing are the salient points garnered from the depositions, arguments and submissions of the respective counsel in their issues raised for determination of this case. However, in dealing with this case, I am of the respectful view that the issues submitted by the Defendant are quite apt and preferable for their fair resolution. The issues shall be taken together. However, I have noted and shall consider also the Plaintiffs Reply in response to the Brief of Argument. It will not however, be out of place to recapitulate briefly the statement of facts in the briefs of the parties. This is to assist to narrow the areas of disagreement by the parties. The Defendant agrees with the facts in paragraphs 2.1, 2.2, 2.3, and 2.6 of the Plaintiffs statement of facts; but disagrees with fact in paragraph 2.4, 2.5, 2.7, 2.8 and 2.9 of the statement of facts. It is also clear to the parties that the plaintiff is challenging the Constitutionality of the three statutes enacted by the Lagos State House of Assembly as earlier set out in this judgment. That the basis of the Plaintiffs contention is that the provisions of these Laws are in conflict with the provisions of Section 4(2) (d) of the Nigerian Tourism development Act, Cap N.137, Laws of the Federation of Nigeria (LFN) 2004. The position of the Defendant is that the Laws of the Lagos State being challenged are valid and Constitutional. It is further the contention of the Defendant that to the extent, that the Nigerian Tourism Development Act has failed the Constitutional test of validity as regards subject matter; therefore, it is the Act and not the Laws of Lagos State that is unconstitutional null and void.
Section 2(2) of the 1999 Constitution (As Amended) in 2010 provides that:
“2. Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”
The defining feature of Federalism is recognition of the separateness and independence of each Government that makes up the Federation. In true Federalism powers within the country are shared among two tiers of Governments. Section 4(1) to (7) of the Constitution of the Federal Republic of Nigeria provides for share Legislative powers as follows:
(1) The Legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included h the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
(Second Schedule Part II)
(3) The Power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of assembly of States.
(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (Second Schedule, Part II).
b) any other mater with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) 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.
(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution:
(Second Schedule, Part II).
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto (second schedule, part II).
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
Close examination and interpretation of item 60(d) of part – 1 of the Second Schedule of the 1999 Constitution is quite imperative as the claim of the plaintiff is predicated mainly on it.
Item 60(d) of the schedule reads as follows:
“The establishment and regulation of authorities for the Federation or any part thereof –
(a)……………………
(b)…………………..
(c)…………………..
(d) To regulate tourist traffic”.
It has been contended that the Federal Government has exclusive legislative powers over tourism and that regulation of hotels, motels, etc is incidental or supplementary to control of tourism. It has been argued on behalf of the plaintiff that item 60(d) deals with matters pertaining to regulation, classification, registration grading of tourist related establishment like hotels, motels, restaurants, fast food outlets, guest inns, apartment, travel agencies, tour operating outfits etc. I agree with the learned counsel for the Defendant that the contention of the plaintiff has no constitutional basis and that the specific matter assigned to the Federal Government in this regard is “tourist traffic” and nothing more.
I note that the expression “tourist traffic” is difficult of definition. It is no where defined in our Constitution. Most English Dictionary affords separate definitions of the two words.
Oxford Advanced Learner’s Dictionary 7th Edition defines “tourist” as a person who is travelling or visiting a place. Roger’s Thesaurus simply defines tourist as a traveler. The same Dictionary, however defines “tourism” as the business activity connected with providing accommodation, services and management of people who are visiting a place for pleasure; and it defines traffic as a movement of people or goods from one place to another, along railway, road, aircrafts. e.t.c
The plaintiff in the circumstance resorted to the definition of “tourist Traffic” as contained in the Republic of Ireland’s Traffic Act of 1939. This court in OGUGU v. THE STATE (1994) 9 NWLR (pt.366) at 43 has admonished and loathes at borrowing definition or interpretation from other countries which have no constitutional provisions, resembling that of this country but different constitutional structures, I do the same here. Nigeria and Ireland are two countries. Their constitution is dissimilar in every material respect. Nigeria is a Federal Republic with division of legislative power between the Federal Government and component states. Republic of Ireland practices a unitary system of Government. The courts in this country consistently lean in favour of giving words their ordinary and natural meaning. See N.E.W. LTD v. DENAP LTD (1997) 10 NWLR (PT.526) 481 AT 523; OJOKOLOBO v. ALAMU (1987) 3 NWLR (pt.61) 377.
In my view the Dictionary definition of “Tourist” and “Traffic” would accord to my own understanding of simple and natural meaning of the two words. The words “tourist traffic” used in item 60(d) of the second schedule of the Constitution, alludes to the ingress and egress of tourists from other countries. These are international visitors or foreigners. The Defendant, understandably, captured these two words in paragraph 21 of his counter-affidavit, deposed to and reproduced hereof for emphasis:
- I know for a fact that:-
(i) The Constitutional power of the plaintiff qua the Federal Government is expressly limited to the regulation of tourism traffic in Nigeria.
(ii) Only the movement of foreigners coming into Nigeria as tourist may be regulated by way of visa and limitation of periods that tourists may remain in the country.
(iii) The said power does not extend to registration classification and grading of hospitality enterprises.
(iv) The enactment of the Law is in furtherance of the duty of a responsible Government such is that of Lagos State to promote the well being of the residents and tourists to the state especially on the area of hospitality business”.
The purpose of interpreting a statute is to ascertain the intention of the law makers. A careful study of the words used in item 60(d) of the second schedule clearly indicates that the intention of the framers of the Constitution is to confine the powers of the National Assembly to regulation of tourist traffic.
In the light of the foregoing, the contention of the plaintiff that matters pertaining to the regulation; registration, classification, grading, of hotels, motels, guest houses, restaurants, travel and tour agencies, and other hospitality and tourism related establishment are matters within the Exclusive Legislative List, cannot be sustained. In effect, the Federal Government lacks the Constitutional vires to make laws outside its legislative competence which are by implication residue matters for the State Assembly: the National Assembly cannot, in the exercise of its powers to enact some specific laws, take the liberty, to confer power or authority on the Federal Government or any of its agencies to engage in matters which ordinarily ought to be the responsibility of a State Government or its agencies. Such pre cannot be allowed to enure to the Federal Government or its agencies so as to enable them encroach upon the exclusive constitutional authority conferred on a state under its residual legislative power: See A. G. LAGOS STATE v. ATTORNEY-GENERAL FEDERATION (2003) 12 NWLR (pt.833) 1 at 195-196; ATTORNEY-GENERAL OGUN STATE v. ATTORNEY-GENERAL FEDERATION (1982) 3 NCLR 166 at 195 – 196.
In view of the foregoing I resolve this issue in favour of the Defendant.
The next issue that calls for determination is whether the 3 Laws enacted by the Lagos State House of Assembly are invalid by reason of their inconsistencies with the provision of the Nigerian Tourism Development Corporation Act, Cap. N.137 LFN 2004. The essence of the plaintiff’s case is to invalidate the 3 statutes enacted by the Lagos State House of Assembly. Therefore the kernel of the plaintiff’s case is that the Lagos State House of Assembly does not have constitutional and statutory competence to enact laws in respect of regulation, registration, classification, and grading of hotels, guest house, motels guest Inns, restaurant and such other hospitality ventures.
I have before now reproduced above subsections (1) (2) (3) (4) (5) (6) and (7) Section 4 of 1999 Constitution.
Sub-Section (1) (2) (3) and (4) deals with the legislative powers of the Federal Government, whereas the legislative powers of a state are as stated in subsections 5 and 6 thereof.
It is clear that the pedestal upon which the claim is also anchored is the Nigerian Tourism Development Corporation Act (now to be referred “NTDC”). Its enactment derives authority and support from a Constitutional provision that is, item 60(d) of the second schedule part I (supra). Some of the functions of the NTDC which are relevant in my resolution of this issue are as set out in paragraph 4 of the Act. These are:
“4(1)……………………..
(a) To encourage people living in Nigeria to take their holidays therein and people from abroad to visit Nigeria, and
(b) To encourage the provision and improvement of tourism amenities and facilities in Nigeria including the development of hotels and ancillary facilities.
(2) In addition to the specific powers conferred on the Corporation by or under the subsequent provision of this Act the Corporation shall have power:-
(a)………………..
(b)………………..
(c)…………………
(d) to register, classify and grade all hospitality and tourism enterprises, travel agencies and tour operators in such manner as may be prescribed.
(3) The Corporation shall in particular have power to –
(a) Carry on any undertaking which appears to the Corporation to be necessary for the promotions and development of a tourist industry.
(b) Advise appropriate authorities on ways of improving tourist facilities.”
From the above, it is clear that the specific powers to register classify and grade hospitality and tourism enterprises are conferred on the Nigerian Tourism Development Corporation. Learned Counsel for the Plaintiff has contended that this power excludes any other Establishment from exercising it. The Lagos State promulgated the 3 Laws. Having regard to the fact that regulation, registration, classification and grading of hotels, motels, etc are not items in the Exclusive and Concurrent Legislative Lists, they are clearly residual matters for the state. Therefore the 3 laws in question enacted by the Lagos State Government is intra vires the power of the State Government. I have equally noted that in those laws, there are some amendments effected, needless going into details of such amendments. It is however note – worthy that I have earlier adopted the Dictionary and ordinary meaning of the words “tourist traffic” as the movement of tourists, particularly foreigners within the con of item 60(d) of the second schedule of the 1999. Having said this I must not fail to state that the validity of any enactment by the National Assembly is to be measured against the backdrop of Section 4(6) and (7) of the Constitution. Therefore the power of the state Government to legislate on a given matter must be traceable to the body of the Constitution, either the Exclusive Legislative List or the Concurrent legislative List or Residual List and any legislation on a matter outside the ambit of the said Constitutional provisions is null and void. This is amplified by the provisions of Section 1 (3) of the Constitution, which provides as follows:
“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.
I have carefully studied the main law – the Hotel Licensing Law of 2003. I do not think its provisions have to do with grading or regulating of hotels generally, other than licensing. It has nothing to do with tourism perse, but in the amendment of 2010 it sought to include “tourism establishments”. The October 2010 amendment incorporated the licensing and grading of hospitality sector such as eateries, bars, casinos, hotels and event arenas etc.
Clearly this is legislation by a state legislature. Its power to legislate is entrenched in Section 4 (6) – (7) of the second schedule part II of the 1999 Constitution.
It is note worthy that none of the subject matters introduced in the Amendment Law of Lagos State falls into any of the items under Exclusive Legislative List, under party 1 of the second schedule of the Constitution and which is under items 60(d).
By virtue of subsection 7 of section 4 of the Constitution (supra) powers of a state house of Assembly to make laws for the peace order and good government of its state is not in doubt. The Lagos State House of Assembly considered these factors in the passing of the 3 laws (supra) to regulate, grade and classify its hotel and other hospitality establishments. These items are not in the Exclusive and Concurrent List; they are within the competence and ambit of the Lagos State House of Assembly to legislate upon.
The Learned Counsel for the Plaintiff has also contended that the State Laws (supra) in question are directly in conflict with the provisions of all existing law of the National Assembly to wit: Nigerian Tourism Development Corporation Act (supra). The plaintiff in this regard relies in the doctrine of COVERING THE FIELD. I agree with the learned counsel for the Defendant that the doctrine has no application in the Exclusive Legislative List in respect of which the Federal Government has exclusive power to legislate. The relevant authorities are to the effect that the doctrine is applicable to where concurrent legislative powers are validly exercised on the same subject matters. This point was exhaustively thrashed in the locus classicus on the matter in the case of LAKANMI v. ATTORNEY-GENERAL WESTERN REGION – (1970) 6 NSCC 143 and re-echoed in the case of ATTORNEY-GENERAL OGUN STATE v. ATTORNEY-GENERAL FEDERATION (1982) 13 NSCC 1 at 35, where it was held that
“….. the phrase covering the field” means precisely what it says where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof where the legislation enacted by the state is inconsistent with the legislation of the Federal Government, it is void and of no effect for inconsistency.”
Explaining further, the concept of “covering the field” in his book (Federalism in Nigeria under the Presidential Constitution)
Professor Ben Nwabueze, SAN, opined thus:-
“The question whether a state law on a concurrent matter can co-exist with a Federal law on the same matter arises where the latter expressly, or impliedly envinces an intention to provide a complete statement of the law governing the matter.”
In the light of the above I find that the doctrine has no application to the issue before this Court.
However, as a final point, I must emphasis on the concept of Federalism and what it is. Again I shall refer to Professor Ben Nwabueze’s book (supra) at P.73: wherein he stated thus:
“Federalism is an arrangement whereby powers of Government within a Country are shared between a national…. and a number of regionalized…. governments in such a way that each exists as a government separately and independently from others operating directly on persons or property within is territorial area, with a will of is own apparatus for the conduct of its affairs…”
The above passage sums up what a Federation is. It expresses the independence of the governments under a Federation. Powers within a country should be allowed to be shared among the two tiers of government. This will include the powers of such federating units to make laws for the benefit or good governance and well being of the people. If so, the Lagos State laws (supra) which are in controversy herein are valid and not unconstitutional.
I cannot therefore, grant the declarations sought by the plaintiff in their Originating Summons reproduced above; they are refused. The order of perpetual injunction sought in the originating summons reproduced above is equally refused. In the whole, the case of the plaintiff fails in its entirety and it is dismissed. I make no order as to costs.
THE CASE DISMISSED.
SC.340/2010