Can the National Assembly make a law on an issue already decided by the Supreme Court? No, say senior lawyers. They argue that the Senate’s bid to empower a federal agency to regulate hotel operations and related businesses was contrary to a Supreme Court judgment on the matter.
The legal experts faulted the Senate’s bid to amend the Nigerian Tourism Development Corporation (NTDC) Act of 1992.
The Bill for the amendment provides, among others, that the federal agency would be vested with regulatory powers over hotels and related businesses.
But, senior lawyers have argued that passing the law with the provision would be in direct conflict with a Supreme Court verdict, which has settled the issue, and must, therefore, be rejected.
NTDC’s functions include registering, classifying, grading and regulating all hotels, motels, hospitality and tourism enterprises, and tour operators.
However, in 2003, the Lagos State House of Assembly passed the Hotel Licencing Law, which was amended in 2010, and gazetted on July 20, 2010.
In 2009, Lagos published a public notice stating that registration of hotels and tourism related establishments in the state was the exclusive responsibility of its Ministry of Tourism.
There was, thus, a conflict between the Lagos law and the NTDC Act’s mandate.
NTDC subsequently issued a public notice advising all operators of hotels and tourism companies to disregard the notice issued by Lagos.
As a way of resolving the issue, the Attorney-General of the Federation (AGF), on behalf of the Federal Government, filed an action at the Supreme Court against Attorney-General of Lagos State by way of originating summons. He challenged the validity of the laws enacted by the Lagos State House of Assembly.
The Supreme Court ruled in favour of Lagos. It held that the Law promulgated by Lagos was not among items in the Exclusive and Concurrent lists, but was rather among Residual matters.
The apex court dismissed the Federal Government’s case and held that the laws enacted by the Lagos State Government were intra vires (within) the powers of the state.
Activist lawyer, Tope Alabi said: “The case as decided by the Supreme Court is the case of AG Federation v AG Lagos (2013)16 NWLR (pt 1380) 249.
“The Supreme Court held that the National Assembly cannot, in the exercise of its powers to enact some specific laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters which ordinary ought to be the responsibility of the state government or its agencies.”
According to Alabi, the Supreme Court’s verdict was to the effect that giving a federal agency such powers would enable it “encroach upon the exclusive constitutional authority conferred on a state under its residual legislative power.”
A bill is now pending before the National Assembly, known as the Nigeria Tourism Development Authority (NTDA) ACT CAP N137LFN, 2004 Repeal and Enactment Bill 2017.
Section 15 c of the Bill seeks to regulate hotels and tourism activities.
A public hearing on the Bill was held on August 17 at Conference Room 022 of the Senate building under the auspices of the Senate Committee on Culture and Tourism chaired by Senator Mathew Urhoghide.
Senator Urhoghide said: “The only law existing in Nigeria prior to this Bill is the NTDC Act of 1992, which this Bill seeks to repeal and enact. In addition, the subject matter of the Bill is under the legislative purview of the National Assembly. Hence, the Bill does not violate any existing law in Nigeria.”
But, lawyers have disagreed with him, saying passing the Bill into law would create more conflicts with states.
NTDC Director-General Mr Folorunso Folarin Coker, a former tourism commissioner in Lagos, called for the Bill’s passage. “We must unshackle the old order if at all we honestly desire to liberate the tourism sector and goad it to perform its roles of empowerment, wealth stimulation, capital mobilisation, revenue generation and development.
“All these cannot be achieved if the business of tourism is being done with the guidelines of the old order. Hence, fate has put us in this position so that we can collectively untangle those shackles which in the old time were considered as lubricators, but are now burdens and debilitating yoke,”he said.
Stakeholders have urged the Senate to reconsider the provisions, which seek to rob states of their powers. To them, it is dangerous to pass a Bill into law with its provisions, which directly conflict with the Supreme Court judgment.
The Senate came under fire for refusing to devolve powers to states during the last Constitution amendment exercise, with states assemblies vowing to reject them when the amendments get to them. To observers, the bid to further reduce states’ powers over tourism issues in spite of the Supreme Court judgment must not be allowed.
Highlighting the many failings of NTDC proposed bill, Nigerian Hotel and Catering Institute (NHCI) Executive Secretary, Victor Kayode, said the Bill was “audacious in nature, but will achieve nothing in terms of tourism development in Nigeria”.
He wondered why the NDTC would send the Bill to the Senate rather than its parent ministry. “We, as industry practitioners and Professional body, are at a loss, as we cannot understand whether a parastatal under a Federal Ministry can send a bill directly to the National Assembly except through the parent Ministry, which must have seen the need for such an amendment as in the present case and forward same to the National Assembly,” he said.
Besides, he said the proposed amendments did not expose the weakness of the current Act, which he believes if well implemented can still achieve its mandate of promoting domestic and international tourism. “This is because the Bill is seeking to establish a new organisation other than amending the provisions of its current law,” Kayode said.
On the section on regulation, Kayode said proponents of the Bill went beyond their bounds with the provision. “Section 15 C seeks to regulate, but regulation is for state ministries and government agencies and accreditation is for professional bodies. They are, therefore, beyond the purview of the Corporation in whatever form,” he said.
Kayode said other provisions of the Bill were in conflict with Supreme Court verdicts on states’ powers.
“Section 29 is virtually an additional burden on the industry that is already reeling under excessive taxes and unnecessary.
“It will lead to conflict and further litigation as collection of levies has been settled by a Supreme Court judgment of 2013. This can only further destroy the industry than rebuild it from ruins.
“The provisions here are an invitation to anarchy. How this section will be implemented without resistance from states thereby creating tensions is unclear,” he said
Kayoed described other sections of the Bill, such as 31, 32, 33, 34, 35 and 36, as a negation of NTDC’s mandate, which is to promote and encourage tourism.
“They will conflict with the states via the residual list of the Constitution as confirmed by the Supreme Court judgment.
“In any case, what purpose will the accreditation and regularisation by NTDC serve in the current Tourism and Hospitality arrangement as enunciated by the Supreme Court judgment, which puts the making of laws regarding tourism firmly at the doorsteps of state Assemblies?
“The provisions of Section 38 will only be a duplicate or photocopy of what the states are already doing and another burden on the industry.
“It is the view of the Nigerian Hotel and Catering Institute that energy need not be wasted in enacting a law that we know will achieve nothing other than creating more confusion.” he said.
Kayode urged the NTDC management to look into the provisions of the original Act and key into its simple mandate.
“In any case, nothing in our view is wrong with the original Act as to warrant the legislation on another one, neither is the establishment of a new organisation necessary for the promotion and development of tourism in Nigeria other than being currently provided in the Act.”
Lawyers: why Senate can’t pass bill
Two Senior Advocates of Nigeria (SANs), Prof Yemi Akinseye-George and George M. Oguntade, said passing the Bill with provisions that conflict with the Supreme Court judgment would be wrong.
Akinseye-George believed the Senate cannot validly pass a law that is in conflict with a Supreme Court decision.
His words: “The Judiciary is the guardian of the Constitution. If the legislature makes any law, which is in conflict with the Constitution, the court will strike it down.
“The Supreme Court has decided the issue of tourism. Any law on that subject must be within the parameters laid down by the decision of the Supreme Court.”
Oguntade said every Supreme Court decision is expected to be based on proper interpretation of constitutional provisions, therefore, it would amount to legislative rascality to make a law that is in conflict with such a decision.
He said: “On the competence of the National Assembly to legislate on a matter already decided by the Supreme Court, my view is that whilst this can generally be done under the principle of separation of powers, such conduct, unless there is public support for it, ought to be avoided at all cost, particularly under a democratic government as we presently have.
“Such conduct was the preserve of military dictatorships, which summarily enacted decrees to avoid/nullify judicial decisions that they disagreed with.
“Under the constitution, the function of the legislature is to make laws for the good order of the country and the judiciary is to apply and interpret such laws.
“It is, therefore, to be expected that any decision of the Supreme Court has been the result of a proper interpretation of the existing law.
“So, it will be tantamount to acts of legislative rascality for the National Assembly to promulgate new laws solely to nullify or avoid the effect of a judicial interpretation of an existing law.”
For Alabi, the provisions in the Bill touching on states’ powers are null and void by virtue of the Supreme Court decision.
He said: “The National Assembly cannot pass such a Bill that conflicts with the Supreme Court judgment. The judgment is on the provisions of the Constitution.
“The issues of licensing and upgrading of hotel is never in the Exclusive or Concurrent Legislative List. It is mainly within the exclusive legislative power of the state government.
“Before the National Assembly can pass a bill empowering Federal Government to do an act or take an action in respect of licensing and upgrading of hotel, the provisions of the Constitution must be altered to include same in the concurrent legislative list, at least.
“Any law passed by the National Assembly empowering the Federal Government on licensing and upgrading of hotel will be contrary to Section 4 of the Constitution and same will be null and void to the extent of its inconsistency.”
Senior Legal/Programme Officer at the Human Rights Law Service (HURILAWS), Collins Okeke, said the Senate cannot oust the court’s jurisdiction.
“Section 4 (8) of the 1999 Constitution (as amended) subjects exercise of legislative powers of the National Assembly to the jurisdiction of the courts. They cannot oust the jurisdiction of the Courts.
“The Bill (that is the Nigeria Tourism Development Authority (NTDA) ACT CAP N137LFN, 2004 9 Repeal and Enactment Bill, 2017) if passed can only be enforced at the Federal Capital Territory, Abuja.
“It cannot be enforced in Lagos or any other state in Nigeria,” Okeke said