Theophilus Abiodun Tokode opines that the National Lotteries Act, which sought to regulate lottery and gaming at the national level, was an attempt to assume legislative powers over a subject that is neither contained in the Exclusive nor Concurrent List. By doing so, the National Assembly encroached upon the residual powers of the states, thereby acting beyond its constitutional mandate
I have read with keen interest the commentary of Mr. Seni Adio, SAN, on the recent decision of the Supreme Court in Attorney General of the Federation & Ors v. Attorney General of Lagos State & Ors, which nullified the National Lotteries Act. While the learned silk is entitled to his opinion, I respectfully disagree with some of the comments of the learned silk. In this rejoinder, I will address some of the key issues raised by the learned silk and demonstrate how they stand in contrast to the reasoning and conclusions of the Supreme Court.
Constitutional basis for legislative competence
A fundamental aspect of Nigeria’s constitutional democracy is the clear delineation of legislative powers between the federal and state governments. The 1999 Constitution (as amended) provides for three legislative spheres. First, the Exclusive Legislative List, contained in the Second Schedule, Part I, outlines matters on which only the National Assembly has the authority to legislate.
Second, the Concurrent Legislative List, in the Second Schedule, Part II, covers matters where both the National and State Assemblies can legislate, with federal law prevailing in cases of conflict.
Lastly, any subject not listed in either the Exclusive or Concurrent List falls within the Residual List, meaning only state assemblies have legislative competence over such matters.
The crux of the Supreme Court’s decision in AGF & Ors v. AG Lagos & Ors lies in the overreach of the National Assembly in legislating on matters beyond its constitutional authority. The National Lotteries Act, which sought to regulate lottery and gaming at the national level, was an attempt to assume legislative powers over a subject that is neither contained in the Exclusive nor Concurrent List. By doing so, the National Assembly encroached upon the residual powers of the states, thereby acting beyond its constitutional mandate.
Such an unconstitutional act does not only defeat the true meaning of the separation of powers but also fosters illegitimate legislative activities. The power of legislation is carefully structured in the Constitution to prevent arbitrary governance and to ensure that each level of government functions within its constitutional limits. When the National Assembly promulgates laws on matters beyond its jurisdiction, it disrupts the balance of legislative authority and undermines the autonomy of the states.
This principle was further emphasized in NPF & Ors v. Police Service Commission & Anor (2023) LPELR-60782(SC), where the Supreme Court reaffirmed the importance of strict adherence to constitutional boundaries in the exercise of governmental powers. In that case, the court ruled that statutory bodies cannot assume powers beyond what is expressly granted to them by the Constitution.
By analogy, just as the Police Service Commission could not extend its authority beyond its constitutional mandate, so too can the National Assembly not legislate on matters outside its constitutionally prescribed limits.
Whether gaming and betting can be classified as trade and commerce
With respect to the learned silk’s opinion, it is essential to emphasize that the finality of the Supreme Court’s decision on this issue stands firm, without prejudice to the definition of “trade” and “commerce” as contained in Black’s Law Dictionary.
The Supreme Court, in its well-considered judgment, carefully examined the nature of gaming and betting and determined that they do not fall within the scope of “trade and commerce” under the constitutional framework.
Notably, the principle that gaming and betting do not constitute trade and commerce is not unique to Nigeria. Other jurisdictions, particularly the Republic of India, have taken a similar position. In State of Haryana v. Suman Enterprises & Ors (1994), the Indian Supreme Court unequivocally held that betting and gambling activities could not be classified as “trade and commerce” because they do not involve the production, distribution, or exchange of goods and services in the conventional sense.
The court reasoned that these activities are based on chance rather than economic productivity, thereby excluding them from the category of trade or commercial enterprise.
In reaching its conclusion, the Nigerian Supreme Court aligned with this well-established cross-border principle, reaffirming that gaming and betting do not meet the legal and economic criteria for classification as trade and commerce.
To hold otherwise would not only conflict with international judicial perspectives but also risk mischaracterizing a sector that is fundamentally regulatory in nature rather than purely commercial.
Addressing other concerns: Security risks and consumer protection
While concerns regarding security risks and consumer protection in the gaming and betting industry are valid, they do not justify an unconstitutional overreach by the National Assembly. Rather, these concerns create an opportunity for states to rise to the challenge of consumer protection and responsible gaming regulation within their jurisdictions. A commendable example in this regard is Lagos State, which has taken proactive steps in establishing a structured regulatory framework for gaming, ensuring both consumer protection and responsible participation in the industry.
The Supreme Court’s position, as of today, remains final and binding. While every judicial pronouncement may be subject to scholarly criticism, it nonetheless stands as the prevailing authority unless reviewed by the court itself. Any attempt to advise or encourage the National Assembly to re-legislate or revisit the matter would amount to an affront to the judiciary’s pronouncement and a jurisprudential anomaly where judicial decisions are reduced to mere academic discourse rather than binding legal authority.
While I acknowledge and appreciate the learned silk’s contributions to commercial and business discourse, the pressing priority now is not to challenge the Supreme Court’s decision but to rally around the states in ensuring that a proper and effective regulatory framework exists. The focus should be on strengthening the mechanisms for responsible gaming and consumer protection and ensuring that states adequately exercise their regulatory responsibilities within the ambit of the law.
Respectfully, the Supreme Court has spoken, and its pronouncement must be upheld as the law of the land.
-ThisDay
Source: loyalnigerialawyer
