ATTORNEY GENERAL OF ONDO STATE V. ATTORNEYGENERAL OF THE FEDERATION (2002)

NAME OF CASE: ATTORNEY GENERAL OF ONDO STATE V. ATTORNEY GENERAL OF THE FEDERATION (2002)

CITATION:

• (2002) 9 NWLR (Pt.772) 222;
• (2002) 6 S.C (Pt. I) 1;
• (2002) LPELR-623(SC);

COURT: SUPREME COURT OF NIGERIA

PARTIES:

ATTORNEY GENERAL OF ONDO STATE (PLAINTIFF) AND

ATTORNEY GENERAL OF THE FEDERATION AND OTHERS (DEFENDANTS)

DATE OF JUDGEMENT: Judgement Delivered On 7^th June, 2002

JUSTICES OF THE COURT: MUHAMMADU LAWAL UWAIS, C.J.N. (Presided and Read the Leading Judgment)

ABUBAKAR BASHIR WALI, J.S.C.

EMANUEL OBIOMA OGWUEGBU, J.S.C.

UTHMAN MOHAMMED, J.S.C.

ALOYSIUS IYORGYER KATSINA-ALU, J.S.C.

SAMSON ODEMWINGIE UWAIFO, J.S.C.

AKINTOLA OLUFEMI EJIWUNMI, J.S.C.

INTRODUCTION

The case of Attorney-General of Ondo State v. Attorney-General of the Federation & Others is a landmark decision delivered by the Supreme Court of Nigeria on 7th June 2002, with the lead judgment delivered by the then Chief Justice of Nigeria, MUHAMMADU LAWAL UWAIS.

The case arose from a dispute over the Corrupt Practices and Other Related Offences Act, 2000, which established the Independent Corrupt Practices and Other Related Offences Commission (ICPC).

The case became a nationally significant constitutional matter, as it tested the limits of the National Assembly’s legislative power and clarified whether the Federal Government could legislate on matters affecting both the Federation and individual states, particularly in relation to anti-corruption laws.

The Supreme Court invited three amicus curiae to provide independent perspectives on the complex issues:

• Professor B. O. Nwabueze, SAN (amicus curiae)
• Chief Afe Babalola, SAN, assisted by Chief Bayo Ojo, SAN, O. Okunloye, Esq., Dr. O. Ayeni, and A. Maikori (amici curiae)
• Olisa Agbokoba, SAN, assisted by A. O. Koko (amicus curiae)

The involvement of these eminent legal practitioners underscored the complexity and importance of the constitutional questions, particularly regarding the balance of power between the Federal and State Governments, and the enforcement of anti-corruption laws under the 1999 Constitution.

The case ultimately became a key reference point for understanding the scope of federal legislative authority, the role of state autonomy, and the enforcement of anti-corruption measures across Nigeria.

SUMMARY OF FACTS

The plaintiff brought an action at the apex court in Nigeria based on the Corrupt Practices and Other Related Offences Act No. 5 of 2000 (called “the Act”)[1]. The Act, created the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The Act gave the ICPC power to investigate and prosecute corruption cases, review systems that encourage corruption, advise government bodies, and educate the public against corruption.

The plaintiff, Ondo State, questioned the validity of the Act and whether it could apply in Ondo State. The state argued that the National Assembly had no power to make such a law for states and that it was an attempt by the Federal Government to take over state powers.

The plaintiff therefore asked the Supreme Court to declare that the Act was not valid in the state, that the Attorney-General of the Federation could not start prosecutions there under the Act, and to give an order stopping the Federal Government, its agencies, and the ICPC from enforcing the Act in Ondo State.

ISSUES FOR DETERMINATION

The first issue raised by the plaintiff was whether the Corrupt Practices and Other Related Offences Act, 2000, made by the National Assembly, was a valid law that should apply throughout Nigeria including within the plaintiff’s territory by virtue of the power granted to the National Assembly upon which it is empowered to make laws for the peace order and good government of Nigeria under the 1999 Constitution of the Federal Republic of Nigeria[2].

The plaintiff argued that the National Assembly had gone beyond its powers because matters like corruption and criminal law inside a state should be handled by the State House of Assembly, not the Federal Government.

The second issue was whether the Attorney-General of the Federation (or anyone he authorizes) could legally begin and conduct criminal cases in the plaintiff’s courts under the Act in respect of any criminal offences created under the act.[3]

Another issue was whether the Act could actually operate within the plaintiff’s state and whether the Federal Government, the ICPC, or any federal agency could enforce the Act inside the state.

PLAINTIFF’ CLAIM

The plaintiff argued that the enactment of the Corrupt Practices and Other Related Offences Act, 2000 by the National Assembly was unconstitutional. According to the plaintiff, the Act was a usurpation of the right of a State to make laws on such matters, because corruption and related offences are not listed in the Exclusive Legislative List of the Constitution. This means the National Assembly could not validly make a law on the matter.

The plaintiff further claimed that the Act could only operate in a state if it was validly enacted by the proper legislative body, and since this had not been done, the Act should not apply in the state.

The plaintiff also pointed to certain provisions of the Act which, in its view, were inconsistent with the Constitution. Because of this inconsistency, the plaintiff argued that the entire Act should be declared null and void.

DEFENDANT ARGUMENTS

The 1st Defendant argued that the National Assembly has the power under the Constitution to make laws for the establishment and regulation of authorities that promote and enforce the Fundamental Objectives and Directive Principles of State Policy.

It was also argued that the Attorney-General of the Federation (or his agents) can lawfully institute criminal actions in any court in Nigeria for offences created by the Act.

The 1st Defendant further maintained that the provisions of the Act challenged by the plaintiff were constitutional and valid, since they were made within the legislative powers of the National Assembly.

Other Defendants’ Arguments (Other States)

Some notable argument debated by other states includes:

• They argued that the entire Act should not be declared void. Instead, only those provisions found to be unconstitutional should be declared invalid, and only to the extent of their inconsistency with the Constitution.
• They also submitted that the National Assembly has responsibility to enforce the Fundamental Objectives and Directive Principles of State Policy, and that it is empowered by the Constitution to make laws for the peace, order, and good government of Nigeria.

DECISION OF THE COURT

On Issue One, The Court held that the National Assembly is empowered to make laws for the peace, order, and good government of the Federation on matters in the Exclusive Legislative List.

It ruled that the Corrupt Practices and Other Related Offences Act, 2000 was validly enacted under Item 60(a) of the Exclusive Legislative List, which allows laws to be made to promote and enforce the observance of the Fundamental Objectives and Directive Principles of State Policy.

The Court also explained that the use of the word “state” in Section 15(5) of the Constitution (which directs that the state shall abolish corrupt practices) refers not only to the Federal Government but also to the component states of the Federation.

The Court resolved issue 2 in favour of the defendant, holding that the Attorney-General of the Federation can institute criminal proceedings in any court in the Federation in respect of offences created under an Act of the National Assembly.

The Court applied the blue pencil rule (which allows unconstitutional parts of a law to be struck out while leaving the rest intact).

It struck down Section 26(3) and Section 35 of the Act[4]: Section 26(3) was invalid because it infringed on the principle of separation of powers; Section 35 was invalid because it violated the fundamental right to personal liberty guaranteed under the Constitution.

BASIS FOR THE RULING

The Supreme Court based its decision on the fact that the 1999 Constitution gives the National Assembly power to make laws for the peace, order, and good government of the Federation on matters in the Exclusive Legislative List.[5]

One of these matters is found in Item 60(a) of the Exclusive Legislative List, which empowers the National Assembly to make laws to promote and enforce the observance of the Fundamental Objectives and Directive Principles of State Policy.

Since fighting corruption falls under this duty[6], the Court held that the Corrupt Practices and Other Related Offences Act, 2000 was validly enacted by the National Assembly.

The Constitution provides that “The State shall abolish all corrupt practices and abuse of power.”[7] The Supreme Court explained that the word “State” in this context does not only mean one of the component states of the Federation. By looking at the definition in the Constitution, the word “State” also includes “government”[8].

The Constitution further defines “government” to mean the Government of the Federation, the Government of a State, a local government council, or any person exercising power or authority on their behalf.[9]

This means that the duty to fight corruption is shared by all levels of government in Nigeria: the Federal Government, State Governments, and Local Governments.

From the Court’s interpretation, the power to make laws to prohibit corrupt practices and abuse of power is not for the Federal Government alone. Since the Constitution places this duty on “the State” which includes the Federal Government, State Governments, and Local Governments, the power is concurrent.[10]

This means both the National Assembly and State Houses of Assembly can pass laws against corruption, each within their constitutional sphere of authority.[11]

NOTABLE DICTUM OF THE SUPREME COURT IN THE CASE

In that case the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the Federal and State governments by virtue of the provisions of section 4 subsections (2), (4) (b), and (7) (c) of the Constitution. – per Uwais, C.J.N[12]

Since the Act is to operate throughout the Federation the Attorney-General of the Federation has power, conferred on him by section 174(l)(a) of the 1999 constitution, to institute criminal proceedings against any person before any court in Nigeria, other than a court-martial, in respect of any of the offences created by the said Act. – per Ogwuegbu, J.S.C[13]

the National Assemble can exercise the powers which it does possess for the purpose of assisting in carrying out a policy which may affect matters which are directly within its legislative competence. It can also exercise powers, which it does possess for assisting in carrying out a policy, which may affect matters not directly within its legislative powers. – per (Ogwuegbu, J.S.C [14] 

As to the non-justiciability of the Fundamental Objectives and Directive Principles of State Policy in Chapter II of our Constitution, section (6) (c) says so. While they remain mere declarations, they cannot be enforced by legal process but would be seen as a failure of duty and responsibility of State organs if they acted in clear disregard of them, the nature of the consequences of which having to depend on the aspect of the infringement and in some cases the political will of those in power to redress the situation. But the Directive Principles (or some of them) can be made justiciable by legislation – per Uwaifo, J.S.C [15]

Reference(S):

[1] Corrupt Practices and Other Related Offences Act 2000 (Nigeria) (Act No 5, Laws of The Federation of Nigeria)

[2] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 4(2)

[3] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 174(2)(a)

[4] Corrupt Practices and Other Related Offences Act 2000 (Nigeria) (Act No 5, Laws of The Federation of Nigeria)

[5] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 4(2)

[6] Constitution of the Federal Republic of Nigeria 1999 (as amended), S 15(5)

[7] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 15(5)

[8] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 318(1)

[9] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 318(1)

[10] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 15(5)

[11] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 4(2), 4(4)(b) and (7)(c).

[12] 2002 9 NWLR (Pt. 772) 222 307 (C)

[13] [2002] 9 NWLR (Pt 772) 222, 313 (A)

[14] 2002 9 NWLR (Pt. 772) 222. 414 (G)

[15] 2002 9 NWLR (Pt. 772) 222 382 (A-B)