Critical Analysis: Constitutional Doctrine of Covering the Field and Its Applicability in Our Nigerian Courts

By Patrick Mgbeoma, Senior Associate – AAA Chambers

Doctrine of Covering the Field

The principle of doctrine of covering the field is a constitutional law principle which is manifested specifically in a Federal System of government with particular respect to which legislating house possess the constitutional power to legislate on laws in that state. Nigeria is a Federal state and as such, issues arising from the doctrine are bound to manifest. This doctrine of covering the field can, therefore, arise in two distinct situations:

Firstly, wherein the exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the constitution has already made provision for covering the subject matter of the Federal Act or the State law, it is worthy of note that the constitution has covered the field on that particular subject matter. The National Assembly and the State House of Assembly cannot make a valid law to that effect anymore – Attorney-General of Ogun State v Attorney-General of the Federation [1982] 2 NCLR 166.

Secondly, the doctrine manifests where a State House of Assembly by the purported exercise of its legislative power enacted a law, which an act of the National Assembly has already made provisions covering the subject matter of the law, the federal law supersedes.

Principles of Covering the Field

Conflict arising between the legislation of a state and the federal legislature on a matter in the concurrent legislative list creates room for a battle for the superiority of Laws so passed, this was a necessitating factor for the constitutional provision that states that “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 will prevail, and that other law shall to the extent of its inconsistency be void” – Section 4(5) CFRN 1999 {As Amended}

This, in clear language, means that only the law validly enacted by the federal legislature will prevail on that which is also validly made by the state house of assembly but this is only where that State Law is inconsistent with that of the Federal law. However, when the state law enacted is, therefore, the same with that of the National Assembly, the law made by the State House of Assembly as it relates to that same matter will, in abeyance and becomes inoperative for the time the statute of the National Assembly is alive.- A.G Lagos State v. Eko Hotels, (2017) LPELR-43713(SC)

It is also important to note that this principle is applicable only where the Federal law entirely covers the whole field on that subject matter. Thus, where a Federal law has only covered a partial field, a situation where the effect of federal law is to enhance a federal purpose on a concurrent subject, a state can also make its own legislation to enhance its own purposes.

In the case of Adetona v. Attorney General of Ogun State [1984] 5 NCLR 299, 308-309 the court held that where the federal law limits its application to the federal level, leaving the states free to exercise their legislative powers on the same subject on the concurrent list. The state can effectively make law on the same subject matter already legislated upon by the Federal law.

Application of the Doctrine in our Nigerian Courts

(Lagos as A Case Study)

A.G. FEDERATION v A.G. LAGOS STATE (2013) 16 NWLR (Pt. 1380) page 249 SC

In 2003, the Lagos State Government passed into law the Hotel Licencing Law Cap H6 Laws of Lagos State of Nigeria 2003 which mandated the Lagos State Government on the registration of hotels and tourism-related establishments in Lagos State which was the exclusive responsibility of the Lagos State Ministry of Tourism and intergovernmental relations. The law was allegedly conflicting with the provision of the Nigerian Tourism Development Corporation Act. The Lagos state law was subsequently amended by the Hotel Licensing (Amendment) Law, 2010.

The Supreme Court held that the National Assembly cannot take the liberty to confer power or authority on the Federal Government to engage in matters which ordinarily ought to be the responsibility of a State Government or its agencies under its residual legislative power.

The Supreme Court further noted that the three Laws promulgated by Lagos State are not items in the Exclusive and Concurrent lists but are rather Residual matters for the State; hence, the laws enacted by the Lagos State Government are intra vires the powers of the State Government.

A.G. LAGOS STATE v EKO HOTELS LTD & ANOR (2017) LPELR – 43713 (SC)

The suit before the trial Court was in the nature of interpleader proceedings, where Eko Hotels Ltd sought a determination by the trial court as to whether remittance of money collected as tax by it from its consumers should be paid to the Federal Board of Inland Revenue (FBIR) or the Lagos State Government having regard to the provisions of Value Added Tax (VAT) Decree No.102 of 1993 and the Sales Tax Law Cap. 175 of 1995. The Federal High Court, Lagos had ordered that the tax be remitted to the Federal Board of Inland Revenue (FBIR) as the Sales Tax Law is inconsistent with the VAT Act which is a federal law that covers the same matter the Lagos Law intends to deal with. This position was confirmed by the Court of Appeal, Lagos.

At the Supreme Court, the apex court did not only re-affirm the fact that the Sales Tax Law of Lagos State was inconsistent with the VAT Act- (Section 4(5) CFRN 1999 {As Amended}, the apex court further confirmed that allowing the two laws exist in pari pasu would result in the consumer of goods and services be liable to double taxation.

Challenges of the Doctrine

The jurisprudential recognition of the Residual Legislative List which is not constitutional will always create a challenge as to the scope of the powers of the State House of Assembly to enact laws that will interfere with the superior powers of the National Assembly. This means that there will always be conflict as to the doctrine of covering the field.

Apart from the Exclusive Legislative List, the lack of a clear distinction on the Concurrent Legislative List on the legislation from the National Assembly and the State House of Assembly will continue to pose challenges. This is because the constitution ought to have clearly defined the powers of the National Assembly and the State House of Assembly in lawmaking.

The Laws made by the National Assembly and the State House of Assembly often foist a case of jurisdictional issues as there is confusion on the proper court (venue) which dispute in this regard are often commenced.

Learning Points

Good knowledge of the principles of the doctrine of covering the field will assist in the proper advice of our clients as to the likelihood of double taxation occasioned by indiscriminate laws enacted by both the National Assembly and the State Houses of Assembly – A.G. Lagos State V Eko Hotels Ltd & Anor (2017) LPELR – 43713 (SC).

When we intend sponsoring a bill or recommending laws to the legislatures, the knowledge of this doctrine will properly guide us in the propriety of the laws is intended to be enacted to avoid confusions and dispute.

The knowledge of the doctrine of covering the field will assist in the knowledge of laws which though in existence are unknowingly null and void and should be vehemently challenged upon discovery.

Conclusion

The promulgation and enactment of laws are entirely for a particular purpose which is to promote the peace, order and good governance of the country. The disputes that arise out of a fallacious interpretation of the constitution is a welcomed development. It will greatly help to shape our jurisprudence and possibly lead to the amendment of Section 4 of CFRN 1999 {As Amended} to put to rest the confusion brought by the implementation of the doctrine of covering the field.

NB

Keywords

Federalism /Federal System of Government: It is a system of government where power is being concentrated at the centre

Legislature/Parliament: The lawmaking body of a state.

Legislation: depicts lawmaking, enactment or formulation

Attorney General of the Federation: Sec 150 (1) of the 1999 Constitution {As Amended} defined him as the Chief law officer of the State as well as a Minister of the Govt. of the Federation

Attorney General of the State: The AGS holds the same powers as the AGF but is limited to the state as provided under Section 195 (1) of the 1999 Constitution {As Amended}

National Assembly: The lawmaking arm of government established under Section 47 of the 1999 Constitution {As Amended} and divided into Senate and House of Representatives

House of Assembly: The lawmaking arm of the States’ Government established under Sec 90 of the 1999 Constitution {As Amended}

Constitutional Provisions

The Legislative powers of Government are provided in Part II of the Nigerian Constitution Sec. 4.

(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 the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(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 the 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

(b) Any other matter 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 the 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.

(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; and

(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

Exclusive Legislative List

The Exclusive Legislative List is provided for in Part 1 of the 2nd Schedule of the 1999 Constitution with 68 Items including the following:

1.Accounts of the Government of the Federation, and of offices, courts, and authorities thereof, including the audit of those accounts.

2.Arms, ammunition and explosives.

3.Aviation, including airports, the safety of aircraft and carriage of passengers and goods by air.

4.Awards of national titles of honour, decorations and other dignities.

5.Bankruptcy and insolvency

6.Banks, banking, bills of exchange and promissory notes.

7. Borrowing of funds within or outside Nigeria for the purposes of the Federation or of any State.

8.Census, including the establishment and maintenance of machinery for continuous and universal registration of births and deaths throughout Nigeria.

9. Citizenship, naturalization and aliens.

10.Commercial and industrial monopolies, combines and trusts.

11.Construction, alteration and maintenance of such roads as may be declared by the National Assembly to be Federal trunk roads.

12. Control of capital issues.

13. Copyright

14. Creation of States

15. Currency, coinage and legal tender

16. Customs and excise duties

17. Defence

18. Deportation of persons who are not citizens of Nigeria

19. Designation of securities in which trust funds may be invested.

20. Diplomatic, consular and trade representation.

Concurrent Legislative List

The Concurrent Legislative List is provided for in Part 2 of the 2nd Schedule of the 1999 Constitution with 30 Items subdivided into Item A- L stating the Limits of the National Assembly and the State Houses of Assembly some of the items includes the following:

Item A: Allocation of Revenues 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;

Item B: antiquities & Monuments

Item C: Archives

Item D: Collection of Taxes etc.

Residual Legislative List

It therefore simply follows from the legislative lists that the National Assembly can constitutionally legislate on two legislative lists which are both the Exclusive and the Concurrent legislative lists. While they enjoy the power to unrestrictedly make laws as to matters in the Exclusive legislative list, their power to make laws on items in the concurrent legislative list is limited to the sharing with the States House of Assembly.

Although, only the Exclusive legislative list and the Concurrent legislative list are expressly provided for by the constitution. There is a jurisprudential constitutional concept of the Residual legislative list which is not expressly provided for by the constitution. This is basically with specific regards to issues which are not sheltered by both the exclusive and the concurrent legislative list.

The residual thus belongs to the states, this means that only the State House of Assembly can legislate on them. Hence, where an incidental matter under federal legislation is a residual matter, the law takes effect as a state law applicable and applies only in states and the Federal Capital Territory, Abuja. Fawehinmi v. Babangida. (1987) 1 NWLR (pt. 67) page 797SC.