HON. MINISTER FOR JUSTICE AND ATTORNEY-GENERAL OF
FEDERATION v. HON. ATTORNEY-GENERAL OF LAGOS STATE
(2013) LPELR-20974(SC)
In The Supreme Court of Nigeria
On
Friday, the 19th day of July, 2013
SC.340/2010
Before Their Lordships
ALOMA
MARIAM MUKHTAR Justice of The Supreme Court of Nigeria
IBRAHIM
TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
JOHN
AFOLABI FABIYI Justice of The Supreme Court of Nigeria
SULEIMAN
GALADIMA Justice of The Supreme Court of Nigeria
NWALI
SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
MUSA
DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
STANLEY
SHENKO ALAGOA Justice of The Supreme Court of Nigeria
Between
HON.
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL OF FEDERATION - Appellant(s)
AND
HON.
ATTORNEY-GENERAL OF LAGOS STATE - Respondent(s)
Summary
Sometime
in 1992, the National Assembly enacted the Nigerian Tourism Development
Corporation Act, now Cap. N137, Laws of the Federation of Nigeria, 2004. The
Nigerian Tourism Development Corporation (NTDC) was subsequently established
pursuant to the Act. By virtue of the provisions of section 4 (2) (d) of the
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. In 2003, the Lagos State
Government passed into law the Hotel Licensing Law Cap.H6 Laws of Lagos State
of Nigeria 2003 which also seeks to regulate, register, classify and grade all
Hotels, Motels, Guest-Inn and other tourist related establishments which law is
directly in conflict with the provisions of the NTDC Act. In year 2009, the
Lagos State Government published in various Newspapers to Hoteliers and
operators of Tourism related establishments operating in Lagos State that the
registration, regulation, licensing and classification of Hotels and other
Tourism related establishments now form the exclusive responsibility of Lagos
State Ministry of Tourism and Inter Governmental Relations or any other
established Lagos State authority empowered in that regard by the Lagos State
House of Assembly. The plaintiff felt that the action of Lagos State Government
is an attempt to usurp and undermine the statutory mandate and responsibilities
of the Nigerian Tourism Development Corporation which 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. The plaintiff maintains that the Lagos
State Laws conflict with the provisions of the NTDC Act, an Act of the National
Assembly duly passed under the powers conferred on the National Assembly by
section 4 (2) (3) Item 60, part 1 of the 2nd Schedule of the Constitution of
the Federal Republic of Nigeria, 1999. The Lagos State Government seeks to
implement these laws as from October, 2010; the effect of which will be damaging
and devastating on hotel and tourism business and enterprises in Nigeria. The
Federal Government seeks to prevent the action of the Lagos State Government
and it's devastating effect by instituting this suit. The defendant filed a
counter-affidavit in opposition to the Originating Summons. Briefly put, the
defendant maintained that the Federal Military Government in 1992 promulgated
the Nigerian Tourism Development Corporation Decree of 1992 to establish the
Nigerian Tourism Development Corporation which shall be responsible for
rendering technical advice to the State Governments and Local Governments in
the field of tourism and to make laws and for regulation, registration,
classification and grading of hospitality and tourism enterprises in Nigeria.
The Decree also provides for the establishment of State Tourism Board for each
State and Local Government Tourism Committee for each Local Government in each
State. From 29th of May, 1999 when the Constitution of the Federal Republic of
Nigeria came into operation, the Decree became an existing law deemed to have
been enacted by the National Assembly. Section 4 of the 1999 Constitution (as
amended) divides legislative powers between the National Assembly for the
Federation and the House of Assembly for the State in the Exclusive and
Concurrent Legislative Lists and Residual List which include items not
contained in the Exclusive and Concurrent Legislative Lists. The defendant
maintained that hospitality and tourism enterprises, not being among the items
in the Exclusive and Concurrent Legislative Lists, are residual matters for the
State Governments to legislate on. From May 1999, the Federal Government,
represented by the plaintiff did not attempt to repeal or modify the NTDC Act
of 1992 to bring it in conformity with the provisions of the Constitution of
the Federal Republic of Nigeria 1999. It continues to enforce the Act in Lagos
State by seeking to regulate, register and grade hospitality and tourism
facilities. The defendant maintains that the Laws of Lagos State are
constitutional and that it is the NTDC Act that has failed the constitutional
test of validity as regards subject-matter competence and therefore
unconstitutional, null and void. The defendant felt that it's actions have no
negative implication for tourists safety or national security and in fact, arc
in conformity with the principles of federalism that is enshrined in the
Constitution and which envisages the devolution of power among the federating
states and not uniformity except as otherwise stated. It asserted that the
constitutional power of the plaintiff qua the Federal Government is expressly
governed by item 60 (d) of the Exclusive Legislative List and limited to the
regulation of tourist traffic. Only the movement of foreigners coming into
Nigeria as tourists may be regulated by way of visas and limitation of periods
that tourists may remain in the Country. The power does not extend to
registration, classification and grading of hospitality enterprises. On behalf
of the plaintiff the issues couched for determination read as follows:-
"(1) Whether the matters pertaining to tourism and other tourist related
establishments fall 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) (3)
Part I Second Schedule of the Constitution of the Federal Republic of Nigeria
1999. (3) Whether the Lagos State House of Assembly and 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." The issues
decoded for determination by the defendant read as follows:- "(i) Whether
regulation, registration, classification and grading of hotels, guest houses,
motels, restaurants, travel and tour agencies and other hospitality and tourism
related establishments 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 Licensing 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) Hotels Occupancy and Restaurant Consumption
Law No. 23, Volume 42 Laws of Lagos State of Nigeria Official Gazette of June
23, 2009." After due deliberation, the declarations sought by the
plaintiff in their Originating Summons was not granted but refused. The order
of perpetual injunction sought in the originating summons reproduced above was
equally refused. The case of the plaintiff failed in its entirety and was
dismissed. No order as to costs.
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