By Abubakar D. Sani, Esq.
This question might come as something of a surprise to many legal practitioners in Nigeria, but I believe that is precisely what the Abuja Municipal Area Council Bye-law No. 14 of 2012 seeks to achieve. The said law, (whose full title is the Shops, Kiosks, Trade License, Private Lock-up Shops and Allied Matters Bye-Law) was purportedly enacted by the “Legislative Arm” of the Abuja Municipal Area Council and took effect from the 2nd day of January 2012. It is published as Government Notice No. 100 in the Official Gazette of the Federal Republic of Nigeria No. 124 Vol. 120, dated 9th September 2015.
Section 1 of the Bye-Law provides that:
“As from the commencement of this Bye-Law, it shall be an offence for any person to establish or operate workshop (sic) or carry on any business, trade or occupation without obtaining a license from the Area Council”. Category E of the 1st Schedule to the Bye-Law is titled “Shops and Kiosks, Trade License Operational Permit on Business and Commercial Premises”. “Legal Practitioner/Chambers” are the first item in that category, and an annual fee in the sum of N60,000 (Sixty Thousand Naira) is charged by the Council on any legal practitioner or chambers who/which wishes to operate within the territorial jurisdiction of the Bye-Law, which is Wuse, Maitama, Asokoro and Garki; together, they comprise the Abuja Municipal Area Council or AMAC.
The foregoing is contained in Section 2(1) of the Bye-Law which provides thus: “A license may be obtained on application and payment of the fees prescribed in the First Schedule depending on the business category”. Sections 3-5 of the Bye-Law are also pertinent, and they provide as follows:
- “3(i): Any licence issued shall expire on the 31st December of the year of issue of the licence”;
- (ii): Any licence issued under Section 2(i) of this Bye-Law shall be renewed annually on payment of a prescribed fee”
- “4(i): Where it becomes evident that the necessary permit has not been obtained by a person operating a workshop or carrying on any business or trade as directed under the Bye-Law, the Area Council shall on the order of the Court seal up the workshop or business premises on (sic) which the trade is being carried on.
- “5: The Magistrate Court Shall exercise jurisdiction” (sic).
It is self-evident that the foregoing provisions impose an obligation on all legal practitioners operating within Wuse, Maitama, Asokoro and Garki Districts of the FCT Abuja to pay the said levy and obtain an operating licence from the AMAC, falling which, they risk prosecution in a Magistrate court. The question is: Does AMAC have that power? I believe that the said Bye-Law is both ultra vires AMAC and inconsistent with the Legal Practitioners Act, starting with the latter. . .
Section 2(1) of the Legal Practitioners Act, provides that:
“Subject to the provision of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if, his name is on the roll”.
Section 8(2) of the LPA further provides that:
“No legal practitioner (other than such a person as is mentioned in sub-section (3) of Section 2 of the Act) shall be accorded the right of audience in any court in Nigeria in any year, unless he has paid to the Registrar in respect of that year, a practicing fee as is from time to time prescribed by the Attorney-General of the Federation after consultation with the Association”.
By virtue of Section 4(3) and Item 49 of the Executive Legislative List in the 2nd Schedule to the 1999 Constitution, the National Assembly possesses the exclusive power to regulate “professional bodies as may designated by the National Assembly”. Paragraph 1 of Part III of the 2nd Schedule to the Constitution requires such designation to be effected either through an Act or a Resolution passed by the National Assembly. I submit that the National Assembly has exercised this power in respect of the legal profession in Nigeria through the Legal Practitioner Act.
By virtue of Item 68 of the Exclusive Legislative List, this power extends to any matter incidental or supplementary to anything mentioned in the Exclusive Legislative List. I submit that payment of a practicing fee or operational levy to enable a legal practitioner to practice or operate a law chambers is ancillary to the general authority given by Item 49 of the Exclusive Legislative List of the Constitution to the National Assembly to designate and regulate all professions. I further submit that the National Assembly has already covered the field in this regard, vide Section 8(2) of Legal Practitioners Act, as aforesaid.
In this connection, in THE HON. MIN. OF JUSTICE & ATT-GEN OF THE FED. vs. ATT-GEN OF LAGOS STATE (2013) All FLWR pt. 704pg. 1, the Supreme Court, per Muhammad, JSC, held that:
“(The) doctrine of covering the field . . . is relevant in a federalism and postulates that where a Federal Constitution or a federal enactment has already covered a particular legislative field, no State or even Local Government law can be enacted to cover the same field already covered by the Constitution or the Federal enactment.”
Accordingly, I submit that to the extent that the Bye-law purports to prescribe operational levies for legal practitioners, it is simply invalid – even assuming, without conceding, that AMAC possesses the vires or competence to enact it. In making this submission, I concede that Section 7(5) of the Constitution provides that the main functions of Local Governments (or Area Councils) shall be as contained in Fourth Schedule to the Constitution. By virtue of Section 303 and Paragraph 2 of Part II of the First Schedule to the Constitution, the Abuja Municipal Area Council (or AMAC) is one of the six Area Councils of the FCT, Abuja.
I, however, submit that nothing in the Constitution empowers any Local Government or Area Council in Nigeria to regulate the legal profession. By virtue of the maxim expressio unius est exclusio alterius, I submit that, to the extent that the functions of local government or area councils as stated in the Fourth Schedule to the Constitution excludes the granting of operational licences to legal practitioners, the said AMAC Bye-Law No. 14 of 2012 which purports to make such provision is simply unconstitutional and ultra vires the Abuja Municipal Area Council, i.e., AMAC.
I believe that this view is supported by the division of legislative powers under the Constitution between the National Assembly and the Houses of Assembly of the 36 States of the Federation: see Sections 4(1) & (7) of the Constitution. Crucially, no such provision exists in the Constitution in respect of Local Governments or Area Councils. In other words, the Constitution does not confer legislative powers on Local Governments or Area Councils. To that extent, I reiterate my earlier submission that the maxim expressio unius est exclusio alterius applies to invalidate the said AMAC Bye-Law No. 14 of 2012, purportedly enacted by the so-called “Legislative Arm” of the Abuja Municipal Area Council.
Assuming without conceding that AMAC derived the authority to enact the Bye-Law by way of delegation from the National Assembly (which by virtue of Section 299(a) of the 1999 Constitution legislates for the FCT), I submit that such delegation would be ultra vires the National Assembly for the simple reason that power is not conferred by the Constitution on the National Assembly. In this regard, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE FED. (1981) 12 NSCC 314 @ 372, the Supreme Court, per Obaseki, JSC, opined that: “delegation by the National Assembly of its essential law-making function is precluded by the Constitution”; and, further that: “under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.”
In relation to the FCT, Abuja, I submit that these dicta are applicable to the National Assembly vis-à-vis Area Councils, given that the National Assembly is the legislature of the FCT as aforesaid. I submit that the Niger State Local Government Edict 1976, which purports to empower Area Councils to make Bye-Laws – including the particular Bye-Law under review (which Edict has been adopted by the National Assembly as part of the laws of the FCT) is an existing law under Section 315 of the Constitution. To that extent, it is clear that the said Edict can only be valid if it is not inconsistent with the Constitution, in the sense that its subject matter is contained in either the Exclusive or the Concurrent Legislative Lists of the Constitution or is otherwise one in respect of which the National Assembly is competent to legislative upon. I submit that to the extent that the imposition of operational levies on professional bodies is not one of the functions conferred on a Local Government or Area Council in the Fourth Schedule to the 1999 Constitution, the said Bye-Law is ultra vires the National Assembly and, by implication, AMAC, notwithstanding any provisions in the said Edict to the contrary.
It is pertinent to observe that, apart from legal practitioners, the said Bye-Law also purports to regulate other professions and activities, and are for that reason, in my view, similarly invalid. Those provisions (of Category E of the Bye-Law) include those relating to the following:
- estate surveyors/valuers, architects, dentists, opticians, engineers, media houses, and insurance, are invalid vis-à-vis Items 49 & 33 of the Exclusive Legislative List of the Constitution;.
- banks, finance houses & bureau de change – inconsistent with Items 6 and 15 of the Exclusive Legislative List;
- Petroleum products: inconsistent with Item 39 of the Excusive List;
- Telecommunication: inconsistent with Item 46 of the Exclusive Legislative List; and
- Pharmacist/chemists, soap/detergent and tobacco: inconsistent with Item 21 of the Exclusive Legislative List.
What better way end than by recalling the dictum of Obaseki, JSC, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE FED., supra, to the effect that under a Constitution conferring specific powers, a particular power must be granted, otherwise, it cannot be exercised. I submit that this is but an amplification of the trite principle of constitutional law laid down in DOHERTY vs. BALEWA (1961) 2 NSCC 248 @ 251, where the apex court, per Ademola, CJF, held that: “The Federal Parliament can legislate for the Federation only on those matters in respect of which its specifically empowered to legislate under the Constitution.”
In a nutshell, therefore, I submit that the said AMAC Bye-Law No. 14 of 2012 is invalid, null and void because it is inconsistent with the 1999 Constitution, and the fact that the National Assembly has already covered the field in terms of operational levies for legal practitioners in Nigeria vide Section 8(2) of the Legal Practitioners Act.
Writeen By Abubakar D. Sani, Esq.