Determination of Whether an Action Falls Under Section 251(l)(r) of the Constitution 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 31st day of March, 2023

Before Their Lordships

Musa Dattijo Muhammad

Chima Centus Nweze

Uwani Musa Abba Aji

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Justices, Supreme Court

SC/27/2009

Between

ATTORNEY-GENERAL OF LAGOS STATE      APPELLANT

                                 And

1.  NATIONAL SPORTS LOTTERY LTD

2.  NSL LOTTERY MANAGEMENT CO. LTD                           RESPONDENTS

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant filed an Originating Summons dated 2nd February, 2005, against the Respondents at the High Court of Lagos State, seeking the determination of whether the Respondents can validly operate any form of lottery business within Lagos State without first obtaining a licence from the Governor of Lagos State, as prescribed under the provisions of Lagos State Lotteries Law 2003. The Appellant sought a declaration that the Respondents have no legal right to conduct any lottery business in Lagos State, without first obtaining a licence duly issued by the Governor of Lagos State. The Appellant also sought an order of perpetual injunction, restraining the Respondents from operating any form of lottery business in Lagos State without a valid licence issued by the  Governor of Lagos State, in accordance with the Lagos State Lotteries Law 2003. In reaction, the Respondents filed a Notice of Preliminary Objection challenging the jurisdiction of the trial court to entertain the suit. The ground of the Respondents’ objection was that the Appellant’s claim relates to the establishment and operation of National and/or On-Line Lottery, which is a business within the exclusive list of the National Assembly which the High Court of a State has no jurisdiction upon. 

After hearing the arguments of parties for and against the preliminary objection, the trial court overruled and dismissed the objection. Aggrieved, the Respondents filed an appeal before the Court of Appeal. In its judgement, the Court of Appeal allowed the appeal on the ground that the Appellant’s suit sought to challenge the executive or administrative action of the Federal Government or its agency, which is only triable in the Federal High Court by the provisions of Section 251(l) (p) and (r) of the Constitution. Dissatisfied, the Appellant appealed to the Supreme Court. 

Issues for Determination 

The Apex Court considered the following issues submitted for determination by the Appellant. 

1.  Whether the action against the Respondents and the reliefs sought by the Appellant in its Originating Summons amount to a challenge of the validity of an executive action or administrative action of the Federal Government, and the High Court of the State is therefore deprived of jurisdiction to entertain the action. 

2.  Whether the court below was right to have declined to consider and determining issues 2 and 3 raised in the appeal.

Arguments

On the 1st issue, the Attorney-General of Lagos State submitted that the Appellant did not challenge the validity of the licence issued to the Respondents by the Federal Government, but only questioned whether the Respondents could operate or carry out their lottery business in Lagos State without compliance with the Lagos State Lotteries Law, 2004 (2004 Law). The Attorney-General argued that the subject-matter of the Appellant’s suit against the Respondents was the violation of the 2004 Law, by conducting and operating lottery (Lotto Nigeria) within Lagos State without a licence from the Lagos State Government, and this cannot be said to constitute a challenge to the validity of an executive or administrative action by the Federal Government, as to deprive the High Court of Lagos State from exercising jurisdiction over the suit.  

Conversely, counsel for the Respondents argued that the trial court lacks jurisdiction over the matter, because the reliefs sought by the Appellant affect the validity of an administrative or executive action of the Federal Government, as it sought to challenge the validity of the licence issued to the Respondents by the Federal Government to operate lottery in Nigeria. He cited NEPA v EDEGBERO (2002) 18 NWLR (PT. 798) 79, and submitted that the subject-matter of the Respondents’ action comes under the ambit of Section 251(l) and (r) of the 1999 Constitution, and the trial court being a High Court of a State could not exercise jurisdiction on it.  

On the 2nd issue, counsel for the Appellant argued that Court of Appeal was wrong when it failed to consider and determine the other two issues validly placed before it. 

Court’s Judgement and Rationale

In its determination of the 1st issue, the Court reproduced Section 251 (l)(r) of the 1999 Constitution (as amended), which provides that the Federal High Court shall have and exercise exclusive jurisdiction in any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The Apex Court held that in determining whether any action falls within the ambit of Section 251 (l)(r) of the 1999 Constitution, the court will be required to resolve three sub-questions, that is,  (i) whether the claim relates to the validity of any executive or administrative action or decision; (ii) if either of the parties is the Federal Government or any of its agencies, and (iii) the nature of the reliefs, that is, whether they are for declaration, injunction, damages or specific performance. The Court referred to PDP v SYLVA (2012) LPELR – 7814 (SC) 52-53. The Court held that the answer to the question whether the action presented by the Appellant at the trial court sought to challenge the executive action of the Federal Government to wit: the validity of the licence issued to the Respondent, lies in the nature, contents and context of the claims and the facts upon which the case is predicated, as disclosed in the Originating Summons, as well as in the affidavit filed in support thereof.

The Court held that the question posed in the Originating Summons simply challenged the right and validity of the Respondents’ operation and conduct of lottery business in Lagos State, without a licence duly issued in accordance with the Lagos State Lotteries Law, 2004. The Appellant’s action was not challenging the validity of the licence issued by the Federal Government to the Respondents, to carry out lottery business anywhere in Nigeria; neither did it raise the issue of the competence of, or authority of any agency of the Federal Government to issue a licence to the Respondents to operate lottery business in Nigeria. The Court held further that the suit is simply one that is entirely based on the interpretation and application of the Lagos State Lotteries Law, 2004 in relation to the Respondent’s operation of lottery business in Lagos State. It cannot therefore, reasonably be said to seek or even purport to question or challenge any executive or administrative action by or of the Federal Government, which is not a party against whom the reliefs are sought and none of the Respondents who are unquestionably, private companies, is said to be an agency of the Federal Government or to be for the determination of matters within the exclusive legislative list as to deprive the State High Court of jurisdiction over it. 

The Court referred to Section 272 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which vests the High Court of a State with jurisdiction to adjudicate over matters that do not fall within the jurisdiction of the Federal High Court under the ambit of Section 251 of the 1999 Constitution; or within the jurisdiction of other courts specifically named in other provisions of the Constitution. The Court held that it was clear that the case presented in the Originating Summons filed by the Appellant before the trial court did not fall under the ambit of Section 251 of the 1999 Constitution, and the trial court rightly decided that the Appellant’s suit “seeks an interpretation of 2004 Lagos State Lotteries Law” and not for “determination of matters within the Exclusive List of the National Assembly of Nigeria”. 

Determining the 2nd issue, the Court held that as a penultimate court in the judicial hierarchy in Nigeria, the Court of Appeal has the primary duty to consider and make necessary pronouncements on all material issues properly placed before it by parties to an appeal. The Court held that this duty is sacrosanct in spite of the views of the court below on only some of the issues, since its decision on the issues determined is subject to a further appeal and may be set aside.  The Apex Court referred to its decision in ADAH v NYSC (2004) 7 SC (PT. II) 139 @ 143 -144 and held that the Court of Appeal erred in law to have failed to consider and make pronouncements on the other issues canvassed before it by the parties, and this amounted to an infringement on the parties’ right to fair hearing in the determination of the appeal. 

Appeal Allowed. Suit restored on the cause list of the High Court of Lagos State, for determination on the merits.

Representation

Moyosore Onigbanjo, SAN, AG Lagos State with Adebayo Haroon – Deputy Director, Adetoun Adeyemi – Deputy Director, E. R. Agu – Assistant Director and F. Pius-Anyador – Chief State Counsel for the Appellant.

Peter Olomola for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)