ATTORNEY-GENERAL OF BENDEL STATE v. ATTORNEY-GENERAL OF THE FEDERATION & 22 ORS (SC. 17/1981) [1981] 4 (02 October 1981);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 2ND DAY OF OCTOBER 1981

SC 17/1981

BETWEEN

ATTORNEY-GENERAL OF BENDEL STATE ....................................... APPELLANT

AND

1. ATTORNEY-GENERAL OF THE FEDERATION

2. ATTORNEY-GENERAL OF ANAMBRA STATE

3. ATTORNEY-GENERAL OF BAUCHI STATE

4. ATTORNEY-GENERAL OF BENUE STATE

5. ATTORNEY-GENERAL OF BORNO STATE

6. ATTORNEY-GENERAL OF CROSS RIVER STATE

7. ATTORNEY-GENERAL OF GONGOLA STATE

8. ATTORNEY-GENERAL OF IMO STATE

9. ATTORNEY-GENERAL OF KADUNASTATE

10. ATTORNEY-GENERAL OF KANO STATE

11. ATTORNEY-GENERAL OF KWARA STATE

12. ATTORNEY-GENERAL OF LAGOS STATE

13. ATTORNEY-GENERAL OF NIGER STATE

14. ATTORNEY-GENERAL OF OGUN STATE

15. ATTORNEY-GENERAL OF ONDO STATE

16. ATTORNEY-GENERAL OF OYO STATE

17. ATTORNEY-GENERAL OF PLATEAU STATE

18. ATTORNEY-GENERAL OF RIVERS STATE

19. ATTORNEY-GENERAL OF SOKOTO STATE

20. THE NATIONAL ASSEMBLY

21. THE PRESIDENT OF THE SENATE

22. SPEAKER OF THE HOUSE OF REPRESENTATIVES

23. CLERK OF THE NATIONAL ASSEMBLY ........................................................... RESPONDENT

BEFORE: Atanda Fatayi-Williams C.J.N. and Bello, Idigbe, Obaseki, Eso, Nnamani and Uwais JJ.S.C

Waiver and Estoppel-right of individual to waive advantage of a law made solely for the benefit or protection of the individual in his private capacity-whether the observance of the provisions of a Statute required on grounds of public policy or for the benefit of the public at large can be waived-circumstances in which estoppel can be invoked.

Pursuant to the provisions of section 149 of the Constitution of the Federal Republic of Nigeria, 1979, the President of the Federal Republic of Nigeria presented the Allocation of Revenue (Federation Account, etc.) Bill, 1980, to the National Assembly for consideration and enactment into law. According to the "Schedule of Bill Presented for Assent", the said Bill was passed by the Senate on 15th January, 1981, passed by the House of Representatives on 22nd January, 1981, and passed by the Joint Committee on finance on 29th January, 1981. Following the certificate of the Clerk of the National Assembly (the 23rd defendant), issued in accordance with section 2 subsection (1) of the Acts' Authentication Act, 1961, that the said Schedule is a true copy of the Bill passed by the National Assembly in accordance with the provisions of sections 54 and 55 of the 1979 Constitution, the President of the Federal Republic of Nigeria signified his assent to the Bill on 3rd February, 1981.

Being dissatisfied with the mode and manner by which the National Assembly had exercised its legislative power in respect of the said Bill, the Government of Bendel State, as Plaintiff, commenced proceedings in the Supreme Court of Nigeria by Originating Summons against the Government of the Federation and the Government of each of the other eighteen States.

On applications being made on behalf of their clients by Chief Fani-Kayode, san, and Chief Onyiuke, SAN, the National Assembly, the President of the Senate, the Speaker of the House of Representatives and the Clerk of the National Assembly were ordered to be joined as the 20th, 21st, 22nd and 23rd defendants respectively.

In the said Summons, as amended, the Plaintiff asked the Court to determine the following questions:-

"(a) whether the Bill entitled-

"A Bill for An Act to prescribe the basis for distribution of Revenue accruing to the Federation Account between the Federal and State Governments and the Local Government Councils in the States; the formula for distribution amongst the States inter se; the proportion of the total Revenue of each State to be contributed to the State Joint Local Government Account; and for other purposes connected therewith" (hereafter referred to as "the Bill") published in the Supplement to the Official Gazette of the Federal Republic of Nigeria is a Bill to which the provisions of section 54 of the Constitution of the Federal Republic of Nigeria (hereafter referred to as "the Constitution") apply or whether it is the provisions of section 55 of the Constitution that apply to the Bill.

(b) Even if the Bill has been enacted into law in the manner required by the Constitution of the Federal Republic of Nigeria-

(i) Are the provisions of sub-section (2) of section 2 thereof consistent with section 149 (3) of the Constitution of the Federal Republic of Nigeria?

(ii) Are the provisions of section 8 thereof consistent with the provisions of sections 7(6), 149(4) and 149(7) of the Constitution of the Federal Republic of Nigeria?"

The plaintiff thereupon sought the following declarations-

(a) a declaration that a Bill for an Act of the National Assembly with respect to any matter which the National Assembly is authorised to prescribe pursuant to the provisions of section 149, of the Constitution of the Federal Republic of Nigeria or the provisions of item A1 (a) of Part 11 of the Second Schedule to that Constitution can only be enacted into law in accordance with the procedure prescribed in section 55 of the Constitution;

"(b) a declaration that a Bill for an Act of the National Assembly referred to the Joint Committee of the said Assembly pursuant to the provisions of section 55 of the Constitution of the Federal Republic of Nigeria cannot lawfully be presented to the President of the Republic for his assent until such Bill (as amended by the Joint Committee aforesaid) has been considered and passed by a majority of the members of each of the Houses of the National Assembly;

(d) a declaration that the Allocation of Revenue (Federation Account, etc.) Act, 1981, is not an Act of the National Assembly and its provisions regarding the division of public revenue between the Federation and the States of the Federation or among the said States are unconstitutional, null and void and of no effect; and

(e) a declaration that it is or it would be illegal and unconstitutional for the Federal Government to carry out the provisions of an Act passed pursuant to section 149 of the Constitution of the Federal Republic of Nigeria if and in so far as the said Act provides:-

(i) that a specified proportion of public revenue payable from the Federation Account (on basis of derivation) to States from which minerals have been extracted shall be paid into a fund "to be administered by the Federal Government for the development of the mineral producting areas in those States;" or

(ii) for the establishment in each State in the Federation of a body charged with the functions of ensuring that "allocations made to the local government councils in the State concerned are promptly paid into the State Joint Local Government Account and distributed to local government councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State;"

(f) an injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever from dividing or otherwise allocating the public revenue of the Republic between the Federation or among the said States as prescribed under the Allocation of Revenue (Federation Account, etc.) 1981."

The Court having refused an application to order pleadings to be filed, the case was heard on the affidavits, and the documents exhibited therewith, which were filed by the various parties to the action. The Affidavit sworn to by the Attorney-General of Bendel State, in support of the Originating Summons, contained averments some of which were stated as follows:-

"1. The Allocation of Revenue (Federation Account, etc.) Bill, 1980, was passed by the Senate of the National Assembly with certain amendments.

2. The House of Representatives also passed the same Bill with amendments different from those made by the Senate.

3. A Joint Conference Committee of both Houses of the National Assembly met on the Bill and approved it (by majority decision) as passed by the Senate.

4. The Bill was not sent back to each of the two Houses of the National Assembly. Without sending the Bill back as aforesaid, the President of the Senate has presented the same for assent to the President of the Federal Republic of Nigeria who has since assented to the Bill as the Allocation of Revenue (Federation Account, etc.) Act, 1981.

5. To the best of my knowledge, information and belief, the Government of the Federation takes the view that the Bill has been duly passed into law and, unless restrained by the order of this Honourable Court, all officers, servants and functionaries of the Federal Government and other public officers within the Federation may divide or allocate public revenue in accordance with the Allocation of Revenue (Federation Account, etc.) Act, 1981.

6. The Act has been published as an enactment by the National Assembly with the short title: The Allocation of Revenue (Federation Account, etc.) Act, 1981, No. 1."

At the hearing of the action, the learned Counsel for the plaintiff, Chief F.R.A. Williams, S.A.N. maintained that the Supreme Court had jurisdiction to entertain the plaintiff-State's claims. The learned Counsel submitted that since any amount standing to the credit of the Federation Account should be distributed among the Federal and State Governments and the local government Councils in each state "on such terms and in such manner as may be prescribed by the National Assembly", and any State which took the view that the legislative procedure followed in prescribing the terms and manner of distribution was not in accordance with the procedure laid down in the Constitution had a "justiciable dispute".

Considerable argument was also advanced as to whether the Court could go behind the certificate issued by the Clerk of the National Assembly under the Acts Authentication Act, 1961, and inquire into the validity, accuracy or authenticity of a law certified under such a certificate to be a true copy of a Bill passed into law by the National Assembly; and, also, as to whether the Court was entitled to receive in evidence records of votes and proceedings in the National Assembly for the purpose of an inquiry as to the validity or Constitutionality of any law passed by the National Assembly.

Chief F.R.A. Williams, S.A.N. contended that in cases of this nature where evidence of the Course of proceedings in the National Assembly is necessary to assist the Court in reaching a decision, the Court is entitled to "take judicial notice of relevant evidence from any reliable source;" the learned Counsel then drew the attention of the Court to the provisions of sections 72, 73 and 112 (b) of the Evidence Act, Cap. 62 of the 1958 Edition of the Laws of the Federation of Nigeria. With regard to section 2 of the Acts Authentication Act, 1961, Chief Williams further submitted that a certificate of the Clerk of National Assembly, issued under that section, cannot preclude the Court from making any inquiry as to the correctness of the procedure adopted by the Legislature in the passage of a Bill into law, and the learned Counsel drew the attention of the Court to the provisions of section 4(8) of the 1979 Constitution in support of his submission in this regard.

With regard to the interpretation to be placed on sections 54, 55, 58 and 149 of the 1979 Constitution, Chief F. R. A. Williams, S.A.N. submitted that all Bills, whether money Bills or non-money Bills, are subject to the provisions of section 54 (1) of the 1979 Constitution.

He maintained that, to become law, a Bill must be passed by both Houses of the National Assembly and the assent by the President is given after the Bill has been so passed. The learned Counsel further submitted that section 55 (2) of the constitution simply provides a machinery for the purpose of resolving differences between the two houses of the National Assembly, and that the object of the Committee is not to arbitrate but to mediate and find a formula acceptable to the two Houses. In pursuance of this, the learned Counsel continued, the Committee would go by a majority decision and where the Committee finds alternative formulae and one of the formulae is preferred by the majority of the committee, it is still open to both Houses to adopt a minority formula, especially as it is the National Assembly that has constitutional responsibility under section 54 (2) to pass a Bill into law.

In a further submission that sections 54 and 55 must be read together Chief Williams, san, maintained that section 55(3) must first be read before the full meaning of section 55 (2) could be appreciated. He further argued that if it was permissible for the Joint Committee on Finance to come to a decision that would bind the two Houses, then the inclusion of section 55(3) in the 1979 Constitution would not have been necessary. The learned Counsel also referred to section 58 (4) of the Constitution which provides "that the Houses of National Assembly have no power to delegate to a Committee their power to decide whether a Bill shall be passed into law." He contended that a matter so fundamental as the sharing of revenue between states and local government Councils was not a matter that could be left to a Committee to decide upon. In support of this argument, the learned Counsel referred to the provisions of section 4(1) of the 1979 Constitution and submitted that the legislative power of the National Assembly could not be delegated to any other body because that power rested with the National Assembly only. The learned Counsel further submitted that even if there were no provisions under section 58 (4) which prohibited delegation of legislative power, the Court should not allow the decision of a Joint Committee to go to the President of the Federal Republic of Nigeria for assent since such decision would be inconsistent with the provisions of section 4 (1) of the 1979 Constitution. Chief Williams, S.A.N., then urged the Court not to construe the 1979 Constitution by inference since no specific provision had been made as to what was to happen when the Joint Committee on Finance resolved the differences referred to it. But if the Court were to draw an inference, the learned Counsel further submitted, it should draw such inference which would not contradict the specific provisions of the Constitution. He, therefore, finally submitted that there is no provision in the 1979 Constitution which authorises a Committee to pass a Bill into law, and that since section 4 of the 1979 Constitution vests the legislative powers in the National Assembly, to delegate its powers to a Committee would be an abdication of these powers and, in effect, an unconstitutional act.

Chief F.R.A. Williams, S.A.N., further contended that the issue in this case was whether the National Assembly and the President had carried out the requirement of the Constitution and that, if they had not, they could not avoid the consequences of their failure by pleading estoppel. He maintained that legislative powers were conferred on them by the Constitution for public benefit and that, consequently, estoppel could not operate to relieve them of their constitutional duties. The learned Counsel also submitted that if estoppel was allowed to apply, it would lead to the intolerable position of asking the Court to sanction an illegality and that, in any case, the equitable doctrine of estoppel would not apply where there was a duty to do something under the law. As regards the plea of waiver, the learned Counsel finally submitted, there could be no waiver of a statutory requirement, such as those contained in sections 4, 54, 55, 58 and 149 of the 1979 Constitution, which had been imposed in the public interest.

The learned Counsel for the 5th, 7th, 10th, 12th and 14th defendants, Mr G. O. K. Ajayi, S.A.N., contended that section 4 (8) of the 1979 Constitution vest the Court with the power to inquire into the exercise of the legislative power by the National Assembly. Consequently, the learned Counsel continued, if any provision of the Acts Authentication Act, 1961, will have the effect of stopping the Court from making the inquiry then such provision is inconsistent with section 4(8) and will, in view of the provisions of section 1 (3) of the 1979 Constitution, be void to that extent.

It was also the contention of Mr G. O. K. Ajayi, SAN, that the power to pass Bills into law is entrusted by the 1979 Constitution to the two Houses of the National Assembly and that such power cannot be delegated to a Committee in the absence of a direct or express provision of the Constitution which confers such power on the Committee. He further contended that all Committees appointed, either separately or jointly by either or both Houses of the National Assembly, derive their powers and responsibilities from section 58 of the Constitution, and that the provisions of section 54 of the Constitution apply to money Bills and non money-Bills alike. Unlike the position taken by all other Counsel in these proceedings, however, Mr Ajayi contended that the Allocation of Revenue (Federation Account, etc.) Bill, 1980, was not a money-Bill because, as passed, the Bill was not for an Act for the "issue or withdrawal" of money but a Bill for an Act which "provides or describes" the basis for distribution only. Consequently, the learned Counsel finally submitted, sections 54, and not section 55, of the 1979 Constitution was applicable to the Revenue Allocation (Federation Account, etc) Bill, 1980, and it was open to both Houses of the National Assembly to act under section 54 and sub-section (1) of section 58 of the Constitution to appoint a Joint Committee whose power of decision was limited under the provisions of section 58 (4) of the aforesaid Constitution.

In reply, the learned Attorney-General of the Federation and Minister of Justice, Chief R. O. A. Akinjide, SAN, contended that since the subject of the plaintiff's complaint concerned the exercise of power by both the Legislature and the Executive, the Supreme Court, in the exercise of its judicial power, had no jurisdiction to adjudicate over the exercise of power by the other two branches of the Government of the Federation. He maintained that though section 212 (1) of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as "the 1979 Constitution"), "gives to the Supreme Court original jurisdiction, to the exclusion of any other court, in any dispute between the Federation and a State, or between States, in so far as that dispute between the Federation and a State, or between States, in so far as that dispute involves any question on which the existence of a legal right depends," the learned Attorney-General of the Federation submitted that the key word in that provision is "dispute". He further submitted that in so far as the attack on the Allocation of Revenue (Federation Account, etc.) Act, 1981, is based on the procedure adopted by the National Assembly in passing the Act, there could be no "dispute" between the Federal Government and a State. The Legislature, Chief Akinjide, S.A.N., finally submitted, is vested with certain powers under the 1979 Constitution and, within those powers, it is sovereign.

The learned Attorney-General of the Federation further contended that the Court could not use the contents of the proceedings in the National Assembly to impeach the validity of an "enrolled law" or an "authenticated bill" the validity of which had been certified by the Clerk of the National Assembly pursuant to the provisions of the Acts Authentication Act, 1961. It was his view that there was hardly anything new in section 4(8) of the 1979 Constitution which, according to him, is in pari materia with Article 3 (2) of the Constitution of the United States of America. It was also his contention that though in some countries, like the United States of America, the Courts look at the legislative proceedings, the learned Attorney-General submitted that such proceedings are not accepted as evidence for the purpose of attacking the validity of an Act.

On the question relating to the interpretation to be placed on sections 54, 55, 58 and 149 of the 1979 Constitution, the learned Attorney-General of the Federation, Chief R. O. A. Akinjide, S.A.N., contended that the Allocation of Revenue (Federation Account, etc.) Bill, 1980, was a money-Bill and that section 55 of the 1979 Constitution applied to it. He maintained that while section 58 (3) of the Constitution (which enables the Senate and the House of Representatives to appoint a Joint Committee on Finance) should be read with section 55, the provisions of section 58 (4) should not be read with section 55 since no money-Bill would ever come under the provisions of subsection (4) of section 58.

Chief Akinjide, S.A.N., further argued that where a Bill had been passed by the Legislature, there would always be a presumption of regularity. He contended that though the presumption was rebuttable, it had not been disputed by the plaintiff that each of the two Houses of the National Assembly passed the 1980 Bill and that, in so doing, the Houses exercised their legislative power. In answer to a question from the Court as to whether section 58(4) of the Constitution presupposed reference to both Houses of the National Assembly, the learned Attorney-General of the Federation contended that there were two possible occasions when a Bill would be sent to a Committee. The first, the learned Attorney-General continued, was where the Bill was sent to a standing Committee of one of the Houses before it was considered by that House at all. That Committee, after considering the Bill, would have to send it back to the House for consideration because it was never deliberated upon by the House before it went to the Committee. The learned Attorney-General contended that such a Bill would come under the provisions of section 58 (4), and not section 55, since no money-Bill would come under that procedure.

The second possibility, the learned Attorney-General of the Federation continued, was where each of the two Houses had exercised their Legislative power in passing a Bill which was a money-Bill and there were differences between the two Houses in the decisions they had taken. In such a case, he submitted that it was section 55 (2) that would apply and that no reference ought to be made to section 58 (4). If section 58 (3) is read together with section 55 (5), he continued, the words "such House" in section 58 (4) would not apply but, if section 58 is read on its own as a whole, then the words "such House" under section 58 (4) would apply.

Chief Akinjide, S.A.N., further contended that if subsections (2) and (3) of section 55 of the 1979 Constitution are read together, it would seem that if the Committee is able to resolve the differences between the two Houses, then no joint sitting of the Houses will take place. In the event that the differences are not resolved by the Committee, however, the learned Attorney-General of the Federation argued that the matter must be referred to a joint sitting of the two Houses. In this regard, however, he further argued that since in constitutional law what is not forbidden is allowed, it was proper to refer the 1980 Bill to the President for assent even though section 55 (2) did not so provide. The sending of the Bill to the Joint Committee on Finance by the two Houses of the National Assembly, the Attorney-General of the Federation further argued, amounts to a contingent delegation which is recognised in India and the United states to avoid deadlock in passing laws. He finally submitted that by the delegation, the two Houses of the National Assembly had simply exercised their legislative power as enshrined in the 1979 Constitution of the Federal Republic of Nigeria.

In the course of his argument, the learned Attorney-General of the Federation, Chief R. O. A. Akinjide, S.A.N., also drew the attention of the Court to the fact that the plaintiff (Bendel State) has been receiving revenue from the "Federation Account" paid out by the Federal Government in pursuance of the provisions of the Allocation of Revenue (Federation Account, etc.) Act, 1981, and contended that a plaintiff who takes benefit under a Statute cannot subsequently challenge the validity of the Statute. The learned Attorney-General of the Federation, therefore, submitted that the plaintiff/State having received revenue pursuant to the provisions of the 1981 Act, is estopped from impugning the validity of the Act. The equitable doctrine of estoppel, he maintained, is mutual in that is applies to both States as well as to individuals. In the alternative, the learned Attorney-General of the Federation contended that the plaintiff/State had a choice or an election to either accept revenue from the Federal Government according to the provisions of the 1981 Act or refuse such revenue and come to Court to challenge the constitutionality of the Act. Chief Akinjide, S.A.N., maintained that the plaintiff could not do both or, in other words, approbate and reprobate or blow hot and cold. The plaintiff/State having received payments from the "Federation Account" since the passage into law of the 1981 Act, the learned Attorney-General of the Federation finally submitted, the plaintiff must be deemed to have waived its right to challenge the constitutionality of the Act.

In line with the argument of the learned Attorney-General of the Federation, it was also the contention of the learned Counsel for the 20th and 21st defendants, Chief Fani-Kayode, S.A.N., and, indeed, the submission of Counsel appearing for some of the other defendants, that section 212(1) of the 1979 Constitution could never come into play except in cases where there is a dispute between the Federal Government and a State, and that there must be some controversy in law which did not exist in the instant case. He then urged the Court to give a very narrow interpretation to what constitutes a "justiciable dispute" under section 212 (1) of the 1979 Constitution. With regard to section 149 sub sections (2), (3), (4), (5) and (6) of the 1979 Constitution, Chief Fani-Kayode contended that these subsections did not give the States any specific or particular share of the "Federation Account" and that, accordingly, the sub-sections could not be relied upon by the plaintiff/State to found jurisdiction in the Supreme Court for entertaining its claims. The learned Counsel further contended that section 149 of the 1979 Constitution had vested extremely wide powers in the National Assembly with regard to the distribution of monies from the Federation Account among the Federation and the States so that whatever rights, if any, the States might have with respect to monies in that account, such rights were, in the view of the learned Counsel, merely political and not legal and, accordingly, that such rights were not "justiciable."

It was the contention of Chief Fani-Kayode, S.A.N., that the records of proceedings of the National Assembly, if and when received in evidence, could only be relevant to prove whether or not the National Assembly complied with the express provisions of the Constitution relating to the legislative power of that body. He submitted, however, that the Court had to make an order for the use of affidavits before such affidavits could take the place of pleadings, as otherwise the use of affidavits in a case of this nature would not be permissable.

With regard to the interpretation to be placed on sections 54, 55 and 58 of the 1979 Constitution, Chief Fani-Kayode, S.A.N., made a distinction between Committees which have been established under the 1979 Constitution, that is, the Joint Committee on Finance established pursuant to section 58(3) and defined by section 55(5) on the one hand, and what he referred to as the "other Committees" which are not of constitutional creation but creation of each House of the National Assembly under section 58(3) on the other hand. The learned Counsel contended that in regard to the latter, the National Assembly can delegate functions to the Committees and it is in respect of this category that subsections (1), (2) and (4) of section 58 of the 1979 Constitution refer. As regards the Committee on Finance which is created under section 58 (3) of the Constitution, however, Chief Fani-Kayode, S.A.N., further contended that the Committee is an arbitrator which should never fail but, in the event of failing and its inability to resolve the differences between the two Houses of the National Assembly, that the provisions of section

55 (3) of the Constitution will apply and the Bill must go before a joint sitting of the two Houses. The learned Counsel submitted that as the differences between the two Houses of the National Assembly had between the two Houses of the National Assembly had been resolved in respect of the Allocation of Revenue (Federation Account, etc.) Bill, 1980, there was nothing to go back to either House or to the joint sitting of the two Houses as provided under section 55 (3) of the 1979 Constitution. Chief Fani-Kayode, S.A.N., finally submitted that though there is nothing in section 58 (4) which authorises the Joint Committee on Finance to pass a Bill, the Court should place a strict interpretation of the provisions of sections 54, 55 and 58 of the 1979 Constitution on the peculiar facts of this case which, when examined, would show that the Allocation of Revenue (Federation Account, etc.) Bill, 1980, is already Law as resolved by the Joint Committee on Finance which is, according to the submission of the learned Counsel, a constitutional agent of the National Assembly for the completion or finalisation of the Assembly's exercise of legislative power.

For his part, the learned Counsel for the 22nd and 23rd defendants, Chief Onyiuke, S.A.N., contended that for the Court to have jurisdiction to entertain the plaintiff's claims, the plaintiff must show not only that a dispute existed between it and the Federation, but also that the dispute affected the existence or exercise of its legal right and that this must appear ex facie the originating Summons. Accordingly, the learned Counsel further submitted, it was not enough for the State of Bendel to maintain that there was procedural error in the passage into law of the Allocation or Revenue (Federation Account, etc.) Bill, 1980, the plaintiff/State must go further to show that its legal right was affected or threatened as a result of the said procedural error. Chief Onyiuke, S.A.N., conceded that though by virtue of section 272 of the 1979 Constitution, the plaintiff/State had a vested legal right to some undefined portion of the "Federation Account", created under section 149 of the 1979 Constitution, the learned Counsel submitted that since the originating Summons had failed to show ex facie, as it was supposed to do by the combined effect of the provisions of Order 5, rules 2 and 5 of the Supreme Court Rules, 1977, either that the vested right was destroyed or its existence threatened by the alleged non-compliance with the procedure laid down under the 1979 Constitution, for the passage into law of the Revenue Allocation (Federation Account, etc.) Bill, 1980, there was no justiciable dispute within the purview of section 212(1) of the 1979 Constitution.

Chief Onyiuke, S.A.N., further contended that section 2 of the Acts Authentication Act, 1961, "raises a presumption of validity and regularity of all formalities by the National Assembly leading up to the authentication." In his view, the presumption was not a rebuttable one and he submitted that the power of the Court under section 4 (8) of the 1979 Constitution was not wide enough to enable it to go behind the certificate of authentication issued pursuant to the provisions of section 2 of the Acts Authentication Act, 1961. In line with the submissions of the learned Attorney-General of the Federation, however, Chief Onyiuke, S.A.N., also submitted that there was nothing new in section 4(8) of the 1979 Constitution in that all written Constitutions which provide for separation of powers between the Legislature, the Executive and the Judiciary, vest the Judiciary under such Constitutions with inherent power of supervisory control of legislative actions. Finally, the learned Counsel submitted that it would not be legally proper for the Court to admit in evidence journals or other records and minutes of proceedings in the National Assembly to question the validity of an Act passed by that body.

As regards the interpretation to be placed on sections 54 and 55 of the 1979 Constitution, Chief Onyiuke, S.A.N., made a distinction between money-Bills and non-money Bills and contended that in a non-money Bill, section 54 (3) of the 1979 Constitution provides that agreement should be reached between the two Houses of the National Assembly on any amendment made to the Bill. He further contended that, in this regard, the procedure for resolving the differences between the two Houses is left to the two Houses of the National Assembly but that the Bill will lapse should both Houses fail to agree. As regards a money-Bill however, the learned Counsel argued that there could be no question of lapse as the differences must be resolved to finality by the joint sitting of both Houses of the National Assembly pursuant to the provisions of section 55 (3) if, and only if, the Joint Committee on Finance failed to resolve the differences. The learned Counsel submitted that the Joint Committee on finance had already resolved the differences between the two Houses of the National Assembly as far as the Allocation of Revenue (Federation Account, etc.) Bill, 1980, was concerned and there was nothing to report back to the two Houses. He finally submitted that a situation where the Joint Committee on Finance would fail to resolve differences between the two Houses of the National Assembly must be very rare since the intention of the provisions of section 55 of the 1979 Constitution is the urgency for, and the need to resolve differences arising in, money-Bills.

On the issues relating to the jurisdiction of the Court to entertain the plaintiff/State's claims, the nature of the evidence which can be received in these proceedings, and the extent to which the Court may make use of the recorded proceedings of the National Assembly-

HELD:

(1) that the Court has jurisdiction under section 4 (8) of the 1979 Constitution to adjudicate on the exercise of legislative powers by the National Assembly, and that the jurisdiction of the Court in this regard covers not only the entire legislative process of the House of Representatives and the Senate but also relates to the mode of exercising Federal legislative power set out in sections 54, 55 and 58 of the said 1979 Constitution;

(2) that section 272 of the 1979 Constitution provides the plaintiff/State with a vested legal right and that, consequently, the plaintiff is entitled to insist that a law which either affects its existing legal rights under section 272 aforesaid or establishes its legal right to a share in the "Federation Account" pursuant to the provisions of section 149 (2) of the 1979 Constitution, must be constitutionally valid;

(3) that any law which actually interferes or is likely to interfere with the vested legal right of the plaintiff/State, as provided for under section 272 of the 1979 Constitution, presents the basis of a "dispute on which the existence or extent of a legal right depends" within the purview of section 212 (1) of the 1979 Constitution;

(4) that there is a justiciable dispute between the plaintiff (Bendel State) and the Federal Government as to

whether or not the passage into law of the Allocation of Revenue (Federation Account, etc.) Bill, 1980, is lawful and constitutional and that, having regard to the provisions of sections 4 (8) and 212 (1) of the 1979 Constitution, the Court has original jurisdiction to entertain the claims of the plaintiff/State;

(5) that having regard to the provisions of sections 72, 73 (1) (a), (b) and (c), and 112 (a) and (b) of the Evidence Act, Cap. 62 of the 1958 Laws of the Federation of Nigeria, the record of proceedings in the National Assembly, including its journals and minutes, or of any committee there of, are relevant and admissible in evidence as public documents to prove whether or not the National Assembly complied with the express provisions of the 1979 Constitution relative to the passage into law of the Allocation of Revenue (Federation Account, etc.) Bill, 1980;

(6) that the issue of a certificate by the Clerk of the National Assembly with respects to any particular enrolled Act, pursuant to the provisions of section 2 of the Acts' Authentication Act, 1961, does not preclude the Court from going behind the certificate in order to make the necessary inquiry in proceedings which specifically seek a declaration by the Court on the constitutional validity of such an Act;

(7) that having regard to the wide supervisory powers over legislative actions, vested in the Court under section 4 sub section (8) of the 1979 Constitution, in so far as section 2 of the Acts' Authentiction Act, 1961, is intended to preclude the Court from going behind the certificate of the Clerk of the National Assembly to make inquiry as to the validity of an enrolled act, that section is inconsistent with the provisions of the 1979 Constitution and, to that extent, null and void.

On the question relating to the constitutional validity of the procedure adopted in passing into law the Allocation of Revenue (Federation Account, etc.) Bill, 1980, and the interpretation to be placed on the relevant sections of the Constitution of the Federal Republic of Nigeria, 1979, and, in particular, sections 54, 55 and 58 thereof-

HELD:

(1) that, generally, the Court would respect the independence of the Legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the Legislature or the mode of exercising its legislative powers; however, if the Constitution makes provisions as to the mode of exercising its legislative powers, then the Court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements;

(2) that sections 52, 54, 55 and 58 of the Constitution of the Federal Republic of Nigeria, 1979, have provided for how the two Houses of the National Assembly should conduct their internal affairs in the exercise of their legislative powers;

(3) that a Bill, whether a money-Bill or a non-money bill, does not and cannot become a law made by the National Assembly unless and until it has been passed by the Senate, the House of Representatives and, except where the provisions of section 54 sub section (5) of the 1979 Constitution apply, assented to by the President of the Federal Republic of Nigeria;

(4) that section 58 (4) of the 1979 Constitution was designed to ensure that all Bills are passed into law by the two Houses of the National Assembly, and not by any Committee thereof, in the manner provided in section 54 (1), that is, by being separately passed by the Senate, the House of Representatives and, except where section 54 (5) applies, thereafter assented to by the President of the Federal Republic of Nigeria;

(5) that having regard to the description of a money-Bill under section 55 (1) of the 1979 Constitution, the Revenue Allocation (Federation Account, etc.) Bill, 1980, was a money-Bill)

(6) that when exercising their legislative powers pursuant to the provisions of the 1979 Constitution, the two Houses of the National Assembly have a complete discretion as to how they should reach agreement on any area of disagreement with respect to a non-money Bill;

(7) that with regard to the resolution of areas of differences between the two Houses of the National Assembly on a money-Bill, however, the procedure laid down by the 1979 Constitution, section 55, subsections (2), (3) and (5), and section 58, subsections (3) and (4), must be followed before such a Bill can become law made by the National Assembly;

(8) that a Joint Committee on Finance to which a money-Bill could be referred for resolution of differences between the two Houses of the National Assembly, pursuant to the provisions of section 55 (2) of the 1979 Constitution, does not possess the power to decide whether the money-Bill shall be passed into law;

(9) that until the two Houses of the National Assembly, sitting either separately or jointly as the case may be, pass the money-Bill, or the version of the Joint Committee on Finance set up thereon, into law, it is not a Bill passed by the National Assembly and cannot, therefore, be assented to by the President of the Federal Republic of Nigeria;

(10) that if a joint Committee on Finance to which a money-Bill has been referred, pursuant to the provisions of section 55 (2) of the 1979 Constitution, fails to resolve the differences between the two Houses of the National Assembly over the Bill, the differences should be resolved by voting at a joint session of the two Houses;

(11) that if, on the other hand, the Joint Committee on Finance succeeds in resolving the differences, the new version of the money-Bill which will show how the differences have been resolved should be sent back to each of the two Houses of the National Assembly for adoption;

(12) that if the basis for resolution of the differences contained in the report of the Joint Committee on Finance is rejected by both or either of the Houses of the National Assembly, then the Joint Committee on Finance has failed within the contemplation of subsection (3) of section 55 of the 1979 Constitution and the two Houses of the National Assembly now must, in compliance with the provisions of the subsection, sit jointly and vote on the Bill in order to resolve any area of disagreement that still exists;

(13) that the Allocation of Revenue (Federation Account, etc.) Bill, 1980, did not pass through the legislative process laid down by the 1979 Constitution and that, consequently, the Allocation of Revenue (Federation Account, etc.) Act, 1981, is not an Act of the National Assembly and its entire provisions are null and void and of no effect whatsoever.

On the submission that the plaintiff/State, by its action in receiving payments of money allocated to it under the Allocation of Revenue (Federation Account etc.) Act, 1981, is estopped from pursuing its claims in these proceedings and must therefore, be deemed to have waived its right to challenge the validity of the Act-

HELD:

(1) that estoppel is an equitable doctrine which rests on substantial grounds of prejudice or change of position and not on mere technicalities;

(2) that it has not been shown that the Federal Government has in any way been prejudiced by reason of the fact that Bendel State has been receiving its share of the revenue under the Act in dispute or that the Federal Government has altered its position in a way that it would not have done if Bendel State had not been receiving its share of the revenue under the Act;

(3) that everyone has a right to waive or agree to waive the advantage of a law made solely for the benefit or protection of the individual, in his private capacity, and which he may dispense with without interfering with public right or public policy;

(4) that when the observance of the provisions of a Statute is required on grounds of public policy or for the benefit of the general public it cannot be waived by an individual;

(5) that since the provisions of sections 54, 55 and 58 of the 1979 Constitution for the passage of a Bill into law are made for the benefit of the Nigerian Community at large and founded on public policy for the proper exercise of the legislative power of the National Assembly, it is not open to the plaintiff/State, even if it wished to do so, to waive the right to challenge the invalidity of the Allocation of Revenue (Federation Account, etc) Act, 1981.

Cases referred to:

(1) Bribery Commissioner v. Ranasinghe (1965) A.C. 172 P.C. at pp. 193, 195, 197.

(2) Gallant v. The King (1949) 2 D.L.R. 425 at p. 428.

(3) Adegbenro v. Akintola and Aderemi (1962) 1 All N.L.R. 465, at p. 479.

(4) South Ottawa v. Perkins, U.S. Supreme Court Reports (24 Lawyers Edition) 154, at p. 156.

(5) Flast v. Cohen (1968) 392 U.S. 83.

(6) Katzenbck v. McClung (1964) 379 U.S. 294.

(7) Roe v. Wade (1973) 410 U.S. 113.

(8) Baker v. Car (1962) U.S. 186.

(9) Powell v. McCormack (1969) 395 U.S. 486.

(10) Robertson v. Minister of Pensions (1948) 2 All E.R. 767 at p. 770.

(11) Clarke (State Treasurer) v. Barnard & Ors. 107-108 U.S. (2 S.C. Reporter) 878.

(12) Pardem v. Terminal Railway of Alabama State Dock Development Dept. 376-378 U.S. or 84A S.C. Reporter 1207, at pp. 1212-1215.

(13) Maritime Electric Co. Ltd. v. General Dairies Ltd. (1937) A.C. (P.C. 610, at pp. 620-621.

(14) Senator Adesanya v. President of the Federal Republic of Nigeria and Anor. (1981) 5 S.C. 112, at p. 149.

(15) Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd. and Others (1920) 28 C.L.R. 129, at p. 149.

(16) Martin v. Hunter, 1 Wheat 304, 4 L. Ed. 97.

(17) Maynard v. Hill, 125 U.S. 190, 31 L. Ed. 654.

(18) Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803).

(19) The State of South Australia v. The State of Victoria (1911) 12 C.L.R. 667, at p. 708.

(20) The State of New South Wales v. The Commonwealth and Ors. 46 C.L.R. 155, at p. 185.

(21) Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All N.L.R. 224.

(22) Great Falls Manufacturing Co. v. Garland, 124 U.S. 581.

(23) Wall v. Parrot Silver Cooper Company, 244 U.S. 407 (37 C.Ct. 609).

(24) Fahey v. Mallonee, 332 U.S. 245 (67 S.Ct. 1552)

(25) The State v. Registrar of State Land Office, 192 Southern Reporter 519.

(26) The Equitable Life Assurance of the United States v. Bogie (1906) 3 C.L.R. 878, at p. 896.

(27) The Equitable Life Assurance of the United States v. Reed (1914) A.C. 587, at p. 595.

(28) Ashwander v. T.V.A., 279 U.S. 288 at 348 (56 S.Ct. 466 at 472).

(29) United Overseas Bank v. Jiwani (1977) 1 All E.R. 733.

(30) Field v. Clark, 143 U.S. 649, 12 S.Ct. 495.

(31) Flint v. Stone, 220 U.S. 389. at p. 410.

(32) Harwood v. Wentworth, 162 U.S. 547.

(33) Bank of New Brighton v. Nebecker, 167 U.S. 196.

(34) County of San Mateo v. Pacific Railway, 13 Fed. Report 722.

(35) South Australia v. Commonwealth (1941) 65 C.L.R. 373.

(36) Deputy Federal Commissioner of Taxation of New South Wales v. W.R. Moran Pty Ltd. (1938-39) 61 C.L.R. 731.

(37) State v. Martin 38 W.N. 2nd Series 834 at 840-41.

(38) Evans v. Brown, 30 IND. 514, at 525-527.

(39) Australian Communist Party v. The Commonwealth 83 C.L.R. 1 at 276.

(40) Commonwealth Freighters Property Ltd. v. Sneddon, 102 C.L.R. 280 at 293.

(41) Breen v. Sneddon, 106 C.L.R. 406 at 411.

(42) Princess Case, 77 E.R. 496.

(43) Harris and Others v. Donges (1952) 68 T.L.R. 1245 at 1263.

(44) Re Mahmoud Ispahani (1921) 2 K.B., 716 at p. 732.

(45) Shagwati Charon Shulka v. Provincial Government S.P. and Berar (1947) A.I.R. (NAGPUR) p. 1.

(46) Plenny v. Ferguson (1981) 163 U.S. 567.

(47) Brown v. Topeka (1954) 347 U.S. 483.

(48) Spangler v. Jacoby, 14III. 297.

(49) Reg. v. I.R.C. Ex parte Federation of Self Employed (1981) 2 W.L.R. 722, pp. 735, 736, 737, 738, 741, 742.

(50) Minister of Agriculture v. Mathews (1949) 2 All E.R. 724, p. 729.

(51) Beesly v. Hallwood Estates Ltd. (1960) 2 All E.R. 314.

(52) Chapman v. Michaelson (1908) 2 Ch. D. 612, p. 621.

(53) Euclid v. Amber Realty Co. (192) 272 U.S. 365 47 S.Ct. 114 at 121.

(54) Harriet Johnson v. Bafunke Aderemi (1955) 13 W.A.C.A. 297 at 298.

(55) The State of Wyoming on the Relation of Fire Fighters Local, etc. v. Herbert Kingham, etc. 420 Pacific Reporter 2nd Series 254.

(56) Nofiu Surakatu v. Nigeria Housing Development Society Ltd., and Anor. (1981) 4 S.C. 26).

(57) Adejumo v. Governor of Lagos State (1970) 1 All N.L.R. 183, p. 185.

(58) Tozier v. Hawkins (1885) 15 Q.B.D. 650.

(59) Western National Bank v. Perez (1891) 1 Q.B.D. 304 at 313 C.A.

(60) Attorney-General for Victoria v. Commonwealth (1945) 71 C.L.R. 297.

(61) Commonwealth of Massachusetts v. Mellon, Secretary of the Treasury, etc. 262 U.S. Vol. 43 Supreme Court Reporter 597.

(62) United States v. Alaska S.S. Co. 253 U.S. 113, 116; 40 S.Ct. 448, 449; 64 L. Ed. (808).

(63) Aetna Life Ins. Co. of Hartford Conn v. Harwoth 300 U.S. 57 S.Ct. 461 p. 464.

(64) Oregon v Mitchell, 400 U.S. 260, p. 304.

(65) Attorney-General for New South Wales v. Trethowan and Others (1932) A.C. 526.

(66) State, etc. v. Governor Schricher etc. (1949) 228 IND. 41.

(67) Gardner v. Collector, 6 Wall. 511 18 L. Ed. 894.

(68) Greenwood v. Martins Bank (1933) A.C. 51, p. 57.

(69) Laker Airways v. Department of Trade (1977) Q.B.D. 643.

(70) Sunderland Corporation v. Priestman (1927) 2 Ch. 107.

(71) Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd. (1961) 2 All E.R. 46.

(72) Barker v. Wingo 407 U.S. 514; 92 S.Ct. 2182; 33 L. ed 2d 101.

(73) State v. Young 32 New Jersey 29 at 31-36.

(74) Stratford-upon-Avon Corporation v. Parker (1914) 2 K.B. 562.

(75) Prentis v. Atlantic Coast Line Co., 21 U.S. 210.

(76) Jay Burns Baking Co. etc. Bryan, Governor of Nebraka etc. 264 U.S. 504.

(77) Rediffusion Hong Kong v. Attorney-General of Hong Kong (1970) A.C. 136.

(78) The State ex related Dunbar v. The Board of Equalisation, 140 Washington 233, p. 249.

(79) Roehl v. Public Utility District No. 1 of Chenham County Washington, (1953) Supreme Court of Washington, 43 Washington 2nd Series, 241 p. 261.

(80) Fowlers v. Pears, 2 Cal. 165.

(81) Western Bank Ltd. v. Schindler (1977) 1 Ch. 1, at p. 13.

(82) Queen v. Overseers of Tonbridge, 13 Q.B.D. 339, pp. 341, 342.

(83) Reid v. Reid, 31 Ch. 402, at p. 407.

(84) Osborne v. Commonwealth of Australia (1911) 12 C.L.R. 321, pp. 360-1, 363-4.

(85) R. v. Burah (1878) 3 A.C., 889, pp. 904-5.

(86) U.S. v. Ballin, 144 U.S. 1.

(87) Hodge v. Queen (1884) 9 A.C., 117, pp. 128-132.

(88) In the matter of Arawoye of Ilesha, 1958 W.R.N.L.R. 36.

(89) London and N.W. Rly. v. Billington (1899) A.C. 79, pp. 81-82.

(90) Bamargh State v. The Province of Bihar, A.I.R. (1949) F.C. 55, p. 56.

(91) United Provinces Governor-General-in-Council v. Province of Madras (1943) 47 C.W.N. (F.R. 3) p. 3.

(92) New South Wales v. Commonwealth, 20 C.L.R. 54.

(93) United States v. Classic, 313 U.S. 299.

(94) Mutual Film Corporation v. Industrial Commission, 236 U.S. 230, 35 S.Ct. 387.

(95) Nafiu Rabiu v. The State (1980) 8-11 S.C., 130, at pp. 148-149.

(96) St. Louis Malleable Casting v. George etc. 260 U.S. 469.

(97) Low vs. Bouverie (1981) 3 Ch. 82.

(98) Territorial and Auxiliary Forces Association of the County of London v. Nicholas (1949) 1K. B., at p. 50.

(99) City of Austin v. Williams, 440 South Western Reporter 2nd Series 115.

(100)United Fuel Gas Co. etc. vs. Railroad Commission of Kentucky, 278 U.S. 390.

(101)Lokshmijit v. Sherani (1973) 3 All E.R. 737 at p. 744.

(102)Lissenden v. C.A. V. Bosch (1940) 1 All E.R. 425 at p. 441.

(103)United States v. Lofkowitz, 285 U.S. 452, 52 S.Ct.420, 76 Ed. 877.

(104)Lake County v. Rollings, 130 U.S. 662, 9 S.Ct 651.

(105)Fairbank v. United States, 181 U.S. 283, 21 S.Ct. 648, 45 L. Ed 862.

(106)United States v. Sharpnack 355 U.S. 286, 78 S.Ct 291.

(107)Luke v. Inland Revenue Commissioners (1963) A.C. 577 at 577.

(108)In re Maryon-Wilson's Will Trusts (1969) Ch. 268.

(109)Attorney-General of St. Christopher Nevis and Arquilla v. Reynolds (1980) A.C. 637.

(110)Cooper v. Telfair, 4 Dall 14, 1 L. Ed. 721.

(111)Canada Thorson v. Attorney-General of Canada (1975) 1 SCR 138.

(112)Nova Scotia Board of Censors v. McNeil (1976) 2 SCR 265.

(113)Frothingham v. Mellon (1926) 262 U.S. 447.

(114)Thompson v. Palua (1933) 49 C.L.R. 507, at p. 509.

(115)Federal Deposit Insurance Corporation v. American Bank Shares, 460 Federal Supplement 549.

(116)State v. Clauson, 156 Pacific Reporter, 554.

(117)Young v. Bristol Aeroplane Co. (1946) A.C. 163.

(118)Banning v. Wright (1972) 1 W.L.R. 972, at p. 979 C.

(119)St. Mary Isington Vestry v. Hornsey Urban District Council (1900) 1 Ch. 695 at pp. 705, 706.

(120)Craine v. Colonial Mutual Insurance Co. Ltd. (1920) 28 C.L.R. 147 PC at page 327.

(121)Boyle v. Sacker (1888) 39 Ch. D. 249 C.A.

Chief F.R.A. Williams, S.A.N., Chief Bayo Kehinde, S.A.N., Messrs O.N. Rewane, S.A. Asemota and Ladi, Williams with him) for the Plaintiff.

Chief R.O.A. Akinjide, S.A.N., Hon. Attorney-General of the Federation and Minister of Justice (Mr Fidelis Nwadialo, Assistant Director, Civil Litigation and Public Law, Federal Ministry of Justice, Mr. A. Abubakar, State Counsel II and Miss O. Akinjide, State Counsel, with him) for the 1st Defendant.

2nd Defendant absent and unrepresented.

3rd Defendant absent and unrepresented.

Ali Eri, Solicitor-General, Benue State (O. Olofu, Ag. D.S.G. with him) for the 4th Defendant.

G.O.K. Ajayi, S.A.N., (Alhaji Oseni, Miss A.N. Ogunsola and Mr F. Lawal, with him) for the 5th, 7th, 10th, 12th, 14th and 15th Defendants.

E.I. Ekanem, Attorney-General, Cross River State (I. Achi-Kanu, D.S.G., with him) for the 6th Defendant-

8th Defendant absent and unrepresented.

B.O. Obisesan for the 9th Defendant.

S.A. Yusufu, Attorney-General, Kwara State (M.A. Medupin, Solicitor-General, Kwara State, with him) for the 11th Defendant.

Paul Orifunmishe, Attorney-General, Niger State (Shaba Dagaci, Senior State Counsel, with him) for the 13th Defendant.

O. Oluborode, Director of Legal Drafting, Oyo State, (R.A. Ojofeitimi, Principal State Counsel, with him) for the 16th Defendant.

G. G. Golu, Solicitor-General, Plateau State, for the 17th Defendant.

Chief I.A. Idamiobi-Brown, Attorney-General, Rivers State (T. Fubara, with him) for the 18th Defendant.

Jean Omokri, D.P.P. Sokoto State (Suleiman Aliero, P.S.C., Sokoto State, with him) for the 19th Defendant.

Chief R.A. Fani-Kayode, S.A.N., (Chief Sobo Sowemimo S.A.N., Miss A. Nzeribe and Dr Obozua with him) for the 20th and 21st Defendants-

Chief G.C.M. Onyiuke, S.A.N., (T.A. Ezeobi and Mrs Jessie Nwabueze with him) for the 22nd and 23rd Defendants.

Atanda Fatayi-Williams, C.J.N.: The 1979 Constitution of Nigeria (hereinafter referred to as "the Constitution") is unique in many respects. It provides, or so it seems, for every situation which can reasonably be conceived in Nigeria. Although these are not justiciable, it provides for the country's fundamental objectives and its directive principles of State policy.

The Constitution also provides that, at the federal level, legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives; that the judicial powers of the Federation shall be vested in the Supreme Court and other courts established in section 6 subsection (5) (a) (c) of the Constitution and such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws.

The Constitution also provides for certain ground rules and for checks and balances with respect to the exercise of the powers conferred on these two of the three branches of the Government of the Federation. For example, the Constitution provides in section 4 subsection (8) thereof that-

"Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall NOT enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law." (The italics are mine).

The Constitution also provides in section 212 subsection (1) thereof that-

"The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends."

As part of the exercise of its legislative power by the National Assembly, it is provided in section 149 of the Constitution as follows:-

"149 (1) The Federal Government shall maintain a special account to be called 'the Federation Account' into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

(2) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State governments, and the local government councils in each State, on such terms and in such manner as may be prescribed by the National Assembly.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

(4) The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the States for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly.

(5) Each State shall maintain a special account to be called 'State Joint Local Government Account' into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State.

(6) Each State shall pay to local Government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly."

(The italics are mine).

In addition to the above, there are provision in Item 1 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution to the effect that-

"Subject to the provisions of this Constitution, the National Assembly may by an Act make provisions for-

(a) the division of public revenue-

(i) between the Federation and the States,

(ii) among the States of the Federation,

(iii) between the States and Local government councils,

(iv) among the local government councils in the States."

(The italics are mine)

In prescribing the "terms" and "manner" indicated above, the National Assembly is, however, subject to certain constitutional procedures which it must follow. In this connection, it is provided in sections 52, 54, 55 and 58 of the Constitution as follows:-
52.- (1) Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case.

(2) Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority.

(3) The Senate or the House of Representatives shall by its rules provide-

(a) that a member of the House shall declare any direct pecuniary interest he may have in any matter coming before the House for deliberation;

(b) that the House may by resolution decide whether or not such member may vote, or participate in its deliberations, on such matter;

(c) the penalty, if any which the House may impose for failure to declare any pecuniary interest such member may have; and

(d) for such other matters pertaining to the foregoing as the House may think necessary,

but nothing in the foregoing provisions shall enable any rules to be made to require any member, who signifies his intention not to vote on or participate in such matter, and who does not so vote or participate, to declare any such interest.

54.- (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.

(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 55 of this Constitution, assented to in accordance with the provisions of this section.

(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House; and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the 2 Houses on any amendment made on it.

(4) Where a bill is presented to the President for assent, he shall within 30 days thereof signify that he assents or that he withholds assent.

(5) Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.

55.- (1) The provisions of this section shall apply to-

(a) an appropriation bill or a supplementary appropriation bill including any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public funds of the Federation of any money charged thereon or any alteration in the amount of such a payment, issue or withdrawal; and

(b) a bill for the imposition of or increase in any tax, duty or fee or any reduction, withdrawal or cancellation thereof.

(2) Where a bill to which this section applies is passed by one of the Houses of the National Assembly but is not passed by the other House within a period of 2 months from the commencement of a financial year, the President of the Senate shall within 14 days thereafter arrange for and convene a meeting of the joint finance committee to examine the bill with a view to resolving the differences between the 2 Houses.

(3) Where the joint finance Committee fails to resolve such differences then the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such joint meeting, it shall be presented to the President for assent.

(4) Where the President within 30 days after the presentation of the bill to him fails to signify his assent or where he withholds assent, then the bill shall again be presented to the National Assembly sitting at a joint meeting, and if passed by two-thirds majority of members of both Houses at such joint meeting, the bill shall become law and the assent of the President shall not be required.

(5) In this section, "joint finance committee" refers to the joint committee of the National Assembly on finance established pursuant to section 58 (3) of this Constitution.

58.- (1) The Senate or the House of Representatives may appoint a committee of its members for such special or general purpose as in its opinion would be better regulated and managed by means of such a committee, and may by resolution, regulation or otherwise, as it thinks fit, delegate any functions exercisable by it to any such committee.

(2) The number of members of a committee appointed under this section, their terms of office and quorum shall be fixed by the House appointing it.

(3) The Senate and the House of Representatives shall appoint a joint committee on finance consisting of an equal number of persons appointed by each House and may appoint any other joint committee under the provisions of this section.

(4) Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the Committee may be authorised to make recommendations to the House on any such matter."

(The italics are mine).

It is, I think, pertinent at this stage, to compare the provisions of sections 54, 55 and 58 of the Nigerian Constitution referred to above with those of section seven in Article One of the Constitution of the United States of America which read-

"1. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments, as on other bills.

2. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approves, he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

3. Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and

before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and the House of Representatives, according to the rules and limitations prescribed in the case of a bill."

Pursuant to the provisions of section 149 of the Constitution, to which I have referred earlier, the President of the Federal Republic of Nigeria, under cover of letter No. 59495/S4 of 28th October, 1980, presented the Allocation of Revenue (Federation Account, etc.) Bill 1980 to the National Assembly for consideration and enactment into Law. The letter reads-

"The National Assembly Federal Republic of Nigeria, Tafawa Balewa Square, Lagos.

Presentation of Bill

It gives me great pleasure to forward the following Bill for consideration and enactment into Law:-

'A Bill for an Act to prescribe the basis for Distribution of Revenue Accruing to the Federation Account between the Federal and State Governments and the Local Government Councils in the States; the Formula for distribution amongst the States inter-se; the Proportion of the Total Revenue of each state to be contributed to the State Joint Local Government Account; and for other purposes connected herewith.'

2. You will recall that I appointed a Commission to review the revenue allocation system in the country and make recommendations in the light of the present constitutional framework. The Commission's report and our views thereon as reflected in a White Paper have already been laid before the National Assembly. This Bill now seeks to translate the recommendations in the White Paper into Law.

Alhaji Shehu Shagari, President of the Federal Republic of Nigeria"

According to the "Schedule of Bill Presented for Assent" (Ex. Sc. 6), the said Bill was passed by the House of Representatives on 22nd January, 1981, passed by the Senate on 15th January, 1981, and passed by the Joint Committee on Finance on 29th January, 1981. Following the certificate of Alhaji Gidado Idris, the Clerk to the National Assembly (23rd defendant), issued in accordance with section 2 subsection (1) of the Acts' Authentication Act, 1961, that the said Schedule is a true copy of the Bill passed by the National Assembly, the President of the Federal Republic of Nigeria, in accordance with the provisions of sections 54 and 55 of the Constitution, signified his assent to the Bill on 3rd February, 1981.

Being dissatisfied with the mode and manner by which the National Assembly had exercised its legislative power in respect of the said Bill, the Government of Bendel State, as plaintiff, commenced these proceedings in this Court by Originating Summons against the Government of the Federation and the Government of each of the other eighteen State Governments. In the said Summons, as amended, the plaintiff asked the court to determine the following questions-

"1 (a) Whether the Bill entitled-

'A Bill for An Act to prescribe the basis for distribution of Revenue accruing to the Federation Account between the Federal and State Governments and the Local Government Councils in the States; the formula for distribution amongst the States inter se; the proportion of the total Revenue of each State to be contributed to the State Joint Local Government Account; and for other purposes connected therewith" (hereafter referred to as "the Bill") published in the Supplement to the Official Gazette of the Federal Republic of Nigeria is a Bill to which the provisions of section 54 of the Constitution of the Federal Republic of Nigeria (hereafter referred to as the "Constitution") apply or whether it is the provisions of section 55 of the Constitution that apply to the Bill.'

(b) Even if the Bill has been enacted into law in the manner required by the Constitution of the Federal Republic of Nigeria-

(i) Are the provisions of subsection (2) of section 2 thereof consistent with section 149 (3) of the Constitution of the Federal Republic of Nigeria?

(ii) Are the provisions of section 8 thereof consistent with the provisions of sections 7 (6), 149 (4) and 149 (7) of the Constitution of the Federal Republic of Nigeria?"

The plaintiff thereupon sought the following declarations-

"(a) a declaration that a Bill for an Act of the National Assembly with respect to any matter which the National Assembly is authorised to prescribe pursuant to the provisions of section 149 of the Constitution of the Federal Republic of Nigeria or the provisions of item A1 (a) of Part II of the Second Schedule to that Constitution can only be enacted into law in accordance with the procedure prescribed in section 55 of the Constitution;

(b) a declaration that a Bill for an Act of the National Assembly referred to the Joint Committee of the said Assembly pursuant to the provisions of section 55 of the Constitution of the Federal Republic of Nigeria cannot lawfully be presented to the President of the Republic for his assent until such Bill (as amended by the Joint Committee aforesaid) has been considered and passed by a majority of the members of each of the Houses of the National Assembly;

(c) a declaration that the members of the National Assembly who met as a Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980 did not constitute a meeting of the Joint Committee of the National Assembly on Finance contemplated by the provisions of section 55 of the Constitution of the Federal Republic of Nigeria.

(d) a declaration that the Allocation of Revenue (Federation Account, etc.) Act, 1981, is not an Act of the National Assembly and its provisions regarding the division of public revenue between the Federation and the States of the Federation or among the said States are unconstitutional, null and void and of no effect; and

(i) that a specified proportion of public revenue payable from the Federation Account (on basis of derivation) to States from which minerals have been extracted shall be paid into a Fund 'to be administered by the Federal Government for the development of the mineral producing areas in those States.'

(ii) for the establishment in each State in the Federation of a body charged with the functions of ensuring that 'allocations made to the local government councils in the State from the Federation Account and from the State concerned are promptly paid into the State Joint Local Government Account and distributed to local government councils in accordance with the provisions of any law made in that behalf by the House of Assembly of the State.'

(f) an injunction restraining all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever from dividing or otherwise allocating the public revenue of the Republic between the Federation and the States of the Federation or among the said States as prescribed under the Allocation of Revenue (Federation Account, etc.) Act, 1981."

The plaintiff thereupon pointed out that the first defendant is sued as the representative of the Government of the Federal Republic of Nigeria whilst the 2nd to the 19th defendants are sued as representatives of the Government of their respective States being parties whose interests will be affected by the reliefs claimed.

Paragraphs 3 to 12 of the Affidavit sworn to by the Attorney-General of Bendel State in support of the Originating Summons read-

"3. The said Bill was passed by the Senate of the National Assembly with certain amendments whilst the House of Representatives also passed the same Bill with amendments different from those made by the Senate. The exact terms of the said amendments are not material to this action.

4. A Joint Conference Committee of both Houses of the National Assembly met on the Bill and approved it (by majority decision) as passed by the Senate.

5. The Bill was not sent back to each of the two Houses of the National Assembly. Without sending the Bill back as aforesaid, the President of the Senate has presented the same for assent to the President of the Federal Republic of Nigeria who has since assented to the Bill as the Allocation of Revenue (Federation Account, etc.) Act, 1981.

6. To the best of my knowledge information and belief, the Government of the Federation takes the view that the Bill has been duly passed into law and, unless restrained by the order of this Honourable Court, all officers, servants and functionaries of the Federal Government and other public officers within the Federation may divide or allocate public revenue in accordance with the Allocation of Revenue (Federation Account, etc.) Act, 1981.

7. The Act has been published as an enactment by the National Assembly with the short title: The Allocation of Revenue (Federation Account, etc.) Act, 1981, No. 1.

8. I have sought for and obtained the permission of Senator (Dr) Olushola Saraki, Chairman, Joint Committee of the National Assembly on Revenue Allocation Bill to give evidence in this action relating to debates or other proceedings before the aforesaid Committee. The document now shown to me and marked Exhibit 2 is a true copy of the said permission.

9. The documents now shown to me and marked Exhibits 3 and 4 are (a) Proceedings of the Joint Conference Committee of both Houses of the National Assembly on Revenue Allocation and (b) Minutes of the said Joint Conference Committee respectively.

10. To the best of my knowledge information and belief the Joint Conference Committee mentioned in paragraph 9 hereof is not the Joint Finance Committee referred to in subsection (3) of section 58 of the Constitution of the Federal Republic of Nigeria.

11. Part of page 4 of Exhibit 3 reads as follows: 'senator Mahmud Waziri: I want to raise a point which nobody has been able to clear. I think we Members of this Committee will have to us the Votes and Proceedings of the House of Representatives as a guide in order to iron out this. (Interruptions) The Chairman: This is a copy of the Votes and Proceedings of the House of Representatives for Tuesday, 27th January, 1981.'

12. The Votes and Proceedings of the House of Representatives mentioned in paragraph 11 of this Affidavit is annexed herewith and marked Exhibit 5."

At the hearing on 21st April, 1981, learned Attorney-General of the Federation who appeared for the 1st defendant asked that pleadings should be ordered. He contended that since the counter-affidavit filed by him showed that there are disputed issues of fact, the case should not be heard on the affidavits filed by the parties. Similar applications were made on behalf of the 3rd, 4th, 9th, 11th, 13th, 17th, 18th and 19th defendants. In reply, Chief Williams for the plaintiff contended that since the facts sworn to in paragraphs 4, 8, 9 and 10 of the counter-affidavit are not fatal to his case, he did not want pleadings to be ordered. He said he was prepared to take the risk particularly since all the questions in issue are questions of law. As we were also of the view that the arguments would eventually turn on the interpretation of all the relevant sections of the Constitution, we agreed with Chief Williams and refused to order pleadings. We thereupon indicated that the case would be heard on the affidavits and the documents exhibited therewith. On that same day, we ordered, pursuant to applications made by Chief Fani-Kayode and Chief Onyiuke on their behalf, that-

the National Assembly,

the President of the Senate,

the Speaker of the House of Representatives, and the Clerk of the National Assembly,

be joined as the 20th, 21st, 22nd and 23rd defendants respectively.

In the course of their submissions before us, the learned Attorney-General of the Federation, and the learned Counsel for the 20th, 21st, 22nd and 23rd defendants, and indeed by learned Counsel for some of the other defendants, contended that because the subject of the complaint concerned the exercise of power by both the legislature and the executive, this Court, in the exercise of its judicial power, has no jurisdiction to adjudicate over the exercise of power by the other two branches of the government of the Federation. Attractive as this argument is, it seems to overlook the clear and unique provisions of sections 1 and 4(8) of the Constitution which for ease of reference are reproduced hereunder:-

"1.- (1)- This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(2) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

4. (8) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law."

While on this point, it is pertinent to state that "the exercise of legislative powers by the National Assembly" referred to in section 4(8) above is not only part of the legislative process of the two Houses, it is also related to the mode of exercising Federal legislative power clearly set out in sections 54, 55 and 58 of the Constitution to which I have referred earlier.

Having regard to those provisions, it is my view that the legislative process commences when a Bill is introduced and first read in any of the two Houses of the National Assembly and ends when that Bill has been passed into law by those Houses and assented to by the President of the Federal Republic of Nigeria. (see Bribery Commissioner v. Ranasinghe (1965) A.C. 172 (P.C.) at pp. 193, 195 and 197 and Gallant v. The King (1949) 2 D.L.R. 425 at p. 428. The "exercise of legislative powers by the National Assembly", being part of the legislative process, starts when a Bill is first introduced in any of the two Houses constituting that august body and ends at the moment before it is assented to by the President. Since the exercise of such powers "shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law", I am clearly of the view, and I do so hold, that this court has jurisdiction to hear the plaintiff's claims. The provisions of our Constitution on the point are clear and devoid of any ambiguity.

The numerous cases from the United States of America and from Australia cited before us on the point are based on the Constitution of those countries and are, in this particular case, unhelpful. In this connection, the following observation of Viscount Radcliff in his judgment in the Privy Council in Adegbenro v. Akintola and Aderemi (1962) 1 All N.L.R. 465 at page 479 comes readily to mind-

"the Constitution of Western Nigeria is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced or to study decisions on the constitutions of Australia or the United States where federal issues are involved, it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution."

(The italics are mine)

Another point raised by Chief Fani-Kayode, Chief Onyiuke, and by counsel appearing for some of the other defendants, is that there were no disputes between the plaintiff and the defendants and that the claim is, therefore, neither justiciable nor tenable. This submission, no doubt, is based on the provisions of section 212 subsection (1) of the Constitution which, again for ease of reference, I reproduce hereunder-

"212. (1) The supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends."

(The italics are mine).

In his plausible submission on this point, Chief Fani-Kayode argued that for the provisions of section 212 to apply, there must be-

(a) an existing dispute;

(b) the dispute must be one between the Federal Government and a State Government or between two or more State Governments;

(d) the dispute must be one on which the existence or extent of a legal right depends.

He, however, concedes that there are no provisions similar to those of section 149 of the Nigerian Constitution in any of the Constitutions referred to in the various cases decided in the United States, the United Kingdom, and Australia which he had cited before us in support of his proposition stated above.

On this point, I agree with Chief Williams that since any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the local government councils in each State "on such terms and in such manner as may be prescribed by the National Assembly", any State which takes the view that the legislative procedure followed in prescribing the terms and manner of distribution is not in accordance with the procedure laid down in the Constitution has a justiciable dispute.

If, as in the case in hand, such a State does not wish to receive a share which is not supported by a law which it considers to be valid and cannot, therefore, if need be, sue for that share, under a legal right entrenched in sections 272 and 149 of the Constitution, the State can sue the Federal Government by virtue of the provisions of section 212 of the Constitution for a declaration that such an Act is invalid. Moreover, since all and each of the States in the Federation have a stake in what its legal share of the revenue should be it is only fair and just that such States should be joined in the action.

Some of the States may agree that the procedure should be challenged while others may not. It is for each State to come to court and say so and for the court to adjudicate as to whether any legal right pertaining thereto has been infringed during the exercise of the legislative power by the National Assembly. For this reason, I hold that there is a dispute between the Government of Bendel State and the Federal Government, that the dispute involves not only questions of law or fact, but also the constitutional right of the Bendel State Government. Furthermore, it is fair, just, and proper for all the other defendants sued or joined by order of court, to be heard when the claims of Bendel State are being considered by this Court.

Objections were also raised by learned Counsel for the defendants as to the evidence which can be admitted. Counsel objected, in particular, to the admissibility of the proceedings of the National Assembly on the Bill whose validity is now being challenged. They also objected to the admission of the minutes of the Joint Conference on the Allocation of Revenue (Federation Account, etc.) Bill, 1980 which met on 28th and 29th January, 1981. In other words, they objected to evidence which would show how the National Assembly had exercised its "legislative power" with respect to the passage of the said Bill into law. Objection was also raised, although rather feebly, to the admission of the Official Gazette of the Federal Republic of Nigeria No. 6 in Volume 68 of 3rd February, 1981, which contained the "Allocation of Revenue (Federation Account, etc.) Act, 1981 (No. 1 of 1981)." The answers to all these objections are in sections 72, 73 (1) (a) (b) and (c), and 112 (a) and (b) of the Evidence Act (Cap. 62, Laws of the Federation). The sections read-

"72. No fact of which the court must take judicial notice need be proved.

73. (1) The court shall take judicial notice of the following facts:-

(a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria;

(b) all public Acts passed or hereafter to be passed by Parliament and all subsidiary legislation made thereunder, and all local and personal Acts directed by Parliament to be judicially noticed;

(c) The course of proceeding of Parliament and of the Federal Legislative Houses of Nigeria and of the Legislative Houses of the States of Nigeria;

112. The following public documents may be proved as follows:-

(a) Acts of Parliament or Laws of a State Legislature, proclamations, treaties or other acts of State, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any State thereof or of any local or native authority-

(i) which appear in the Official Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify;

(ii) by a copy thereof certified by the officer who authorised or made such order or issued such official communication;

(iii) by the records of the departments certified by the heads of those departments respectively or by the Minister or in respect of matters to which the executive authority of a State extends by the Governor or any person nominated by him; or

(iv) by any document purporting to be printed by order of the Government;

(b) the proceedings of the Legislative Council or of a Federal Legislative House-by the minutes of that body or by published Ordinances or abstracts, or by copies purporting to be printed by order of Government."

(The italics are mine).

In addition, I do not see how the courts could exercise jurisdiction over the exercise of legislative power by the National Assembly or by a State House of Assembly without being able to ascertain from the record of proceedings of the House concerned how, in what manner, and by what procedure, such legislative power has been exercised. Moreover, reference to the provisions of section 2 (2) of the Acts Authentication Act, 1961, which says that the certificate of the Clerk of the National Assembly on the Schedule of a Bill "shall be conclusive for all purposes" as evidence that the courts cannot go behind such certificate seems to overlook the provisions of subsection (3) of the same section 2 which read-

"(3) Nothing in this section shall abrogate any special requirements prescribed for the entrenched sections of the Constitution Order or the Constitution of the Federation...."

Section 6 of the same Act merely provides for the admission of Acts of the National Assembly published by authority which bears a number, reference to the year in which it was passed, and date of commencement as sufficient evidence in all courts that it has been duly assented to and no more.

For the above reasons, I subscribed to the decision that all the documents are admissible. We thereupon over-ruled the objections.

From the undisputed facts in the affidavits and following the contents of the following documents, namely,

(a) Votes and Proceedings of the Senate of 3-11-80 and 26-1-81 (Exh. SC. 1 and SC. 13);

(b) Votes and Proceedings of the House of Representatives of 3-11-80 and 27-1-81 (Exh. SC. 3 and SC. 12);

(c) Proceedings of the Joint Conference Committee on Revenue Allocation (Federation Account, etc.) Bill 1980 of 28th and 29th January, 1981 (Exh. SC. 4 and SC. 5);

(d) Schedule of Bill presented for Assent (Exh. SC. 6); and

(e) Allocation of Revenue (Federation Account, etc.) Act, 1981 (Exh. SC. 11),

it cannot be disputed, and is, in fact, not disputed that-

(i) the Senate passed the Bill on 15th January, 1981, with one set of amendments;

(ii) the House of Representatives passed the same Bill on 22nd January, 1981; with another set of amendments;

(iii) the Joint Committee agreed on their own version or provisions of the Bill on 29th January, 1981;

(iv) the above 'Joint Committee' was referred to in the proceedings sometimes as 'Joint Conference on Revenue Allocation' and at other times as 'Joint Committee on Finance';

(v) after the deliberations of the Joint Committee, the Bill was not sent back to either of the two Houses of the National Assembly;

(vi) it was sent, instead, to the President of the Federal Republic of Nigeria for his assent; and

(vii) the President assented to the Bill on 3rd February, 1981."

It is, I think, pertinent, at this stage to indicate that I am unable to accept the submission of Chief Williams that the Joint Committee which agreed on the Bill was not the Joint Finance Committee appointed for that purpose but another Committee known as "Joint Conference Committee on Allocation of Revenue." A close perusal of the Composition of the Committee and of its proceedings show that it is the same joint committee appointed to resolve the differences between the two Houses which is sometimes referred to as the Joint Committee on Finance and at other times as the Joint Conference Committee on Allocation of Revenue. It is, to my mind, merely a matter of nomenclature, a distinction without a difference. With respect, it seems to me that Chief Williams, albeit unsuccessfully, was trying to make heavy weather out of an irrelevant slip. In this respect, I agree with the submissions of Chief Fani-Kayode and Chief Onyiuke.

Of all the Attorneys-General and counsel who appeared before us, only Mr Ajayi, who appeared for the 5th, 7th, 10th, 12th, 14th and 15th defendants, has contended that the Bill which has been passed into law and whose validity is now being questioned, is not a money-bill in section 55(1) of the Constitution and the provisions of the Act (Exh. 11) in question, I am unable to see any merit in Mr Ajayi's contention. I accordingly hold that the Bill is a money-bill and was introduced in the National Assembly as such.

The next question is this. Is the procedure followed in the passage of this Bill into law the one prescribed by the Constitution? The prescribed procedure will be found in sections 54, 55 and 58 of the Constitution and may be summarised as follows. The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives subject to the exception provided for in subsection (5) of section 54 which has no relevance to the present case. If a bill originates in either the Senate or the House of Representatives, it shall not become law unless it has been passed by both Houses and agreement has been reached between the two Houses on any amendment made thereto and thereafter assented to by the President. If the President withholds his assent, the bill shall become law if it is subsequently passed by each House by a two-thirds majority.

In the case of a money-bill such as the one under consideration in the present case, the same procedure will apply except, according to section 55 (2), where it-

"is passed by one of the Houses of the National Assembly but is not passed by the other House within a period of two months from the commencement of the financial year, the President of the Senate shall within 14 days thereafter arrange for and convene a meeting of the Joint Finance Committee to examine the bill with a view to resolving the differences between the two Houses."

(The italics are mine.)

Where, however, the joint finance committee fails to resolve such differences, the bill shall then be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such joint meeting, it shall be presented to the President for assent.

It is, moreover, made clear in section 55 (5) that the "joint finance committee" referred to in the section is the same as the joint committee on finance established or appointed under section 58 subsection (3), which is, of course, a committee which has no "power to decide whether a bill shall be passed into law."

In the case in hand, the Joint Conference on the Allocation of Revenue (also known as the Joint Finance Committee or the Joint Committee on Finance) consisting of 24 members (12 from each House) not only expressed their preferences, by voting, on the respective amendments of each House on each clause, in most cases by a majority of 13 to 11, but also substituted new clauses 6 and 7 for the ones in the Bill sent to them "with a view to resolving the differences between the two Houses." (See pages 4 and 5 of the minutes of the Committee, Exh. SC. 5). Paragraph 7 of the said minutes reads-

"The whole Bill as amended was approved by the Conference Committee by 13 votes for and 11 against."

Thereafter, the Bill, as amended by the Joint Committee, was sent to the President of the Federal Republic of Nigeria for his assent which he duly signified on 3rd February, 1981. In the face of these admitted facts, can it be said that the Bill has been passed by both Houses of the National Assembly in accordance with the procedure laid down in the Constitution bearing in mind the unequivocal provisions of section 58 (4) to which I have referred earlier? I do not think so. In this context, I confess that I am unable to resist the conclusion that the Joint Finance Committee of 24 members has, for want of a better phrase, taken over the powers given to the National Assembly-two Houses consisting of 95 Senators and 450 members of the House of Representatives-by the Constitution. Quite apart from the clear provisions of section 58 subsections (3) and (4), I cannot conceive of a situation in any country with a parliamentary democracy where legislative powers generally, and those relating to money-bills in particular, could be handed over by the elected representatives of the people to a caucus of twenty-four of such elected members, no matter how eminent they may be. In the course of the argument, we asked learned Counsel to refer us to any such country. I can only add that none was mentioned throughout the proceedings. I am also not aware of any such country.

The so called resolution of differences is no more than a substitution, by the Joint Finance Committee, of its own version of the Bill, passed by its members by a slight majority of two votes. I am unable to accept this as a resolution of the differences between the version passed by the House of Representatives. Be that as it may, one thing is clear from the procedure adopted and that is that the Bill has not been passed by the National Assembly as provided for in the Constitution. My interpretation of the provisions of section 55 subsections (2) and (3) read together with sections 54 and 58, is this. If a joint finance committee to which a money-bill has been referred fails to resolve the differences between the two Houses over the bill, the differences should be resolved by voting at a joint session of the two Houses. If, on the other hand, the committee succeeds in resolving the differences, the new version of the Bill which will show how the differences have been resolved should be sent back to each of the two Houses for adoption. That is the only path of true parliamentary democracy. Since the joint finance committee has no "power to decide whether a bill shall be passed into law", whatever decision it takes on a bill referred to it cannot be final. Until the two Houses, sitting either separately or jointly as the case may be, pass the bill, or the committee's version of it, into law, it is not a bill passed by the National Assembly and cannot, therefore, be assented to by the President of the Federal Republic of Nigeria.

Bearing in mind the above interpretation, the real substance of the present case is this. When a legislature like our National Assembly has purported to pass a Bill into law and the Bill has received the assent of the President, is it a valid Act in the course of whose passing there is a procedural defect, or is it an invalid Act which the National Assembly had no power to pass in that manner? The strongest argument in favour of the plaintiff's contention is the fact that section 4 (1) of the Constitution expressly provides that-

"The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representative",

coupled with the fact that section 54 (1) thereof also provides that-

"The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this subsection, assented to by the President."

(The italics are mine).

Subsection (5) referred to above provides that-

"Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required."

In my view, a legislature which operates a federal written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law-making that are imposed by that Constitution which itself regulates its power to make law. I am, therefore, unable to accept the proposition that such National Assembly, once established, has some inherent power, derived from the mere fact of its establishment, to delegate or transfer to its joint finance committee, established or appointed only for the purpose of resolving differences which have arisen between the two Houses of that National Assembly during the passage of a money-bill, its exclusive constitutional power to make a valid law. The limits of the power of such a joint committee are set out in unambiguous terms in section 58 subsections (3) and (4) of the Constitution which, for ease of reference, are again reproduced hereunder-

"(3) The Senate and the House of Representatives shall appoint a joint committee on finance consisting of an equal number of persons appointed by each House and may appoint any joint committee under the provisions of this section.

(4) Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the committee may be authorised to make recommendations to the House on any such matter."

(The italics are mine.)

The various provisions of the Constitution to which I have earlier referred clearly indicate a different legislative process from that followed by the National Assembly in this case. Since this legislative process has not been followed in the passing of the Allocation of Revenue (Federation Account, etc.) Act, 1981, the Act, to my mind, is not a valid law. It carries death wounds on its face. This view, incidentally, accords with those of Lord Pearce in the judgment of the Privy Council in Bribery Commissioner v. Ranasinghe (1965) A. C. (P.C.) 172 at pages 193, 195 and 197; (also see South Ottawa v. Perkins U.S. Supreme Court Reports (24 Lawyers Edition) 154 at page 156). The assent by the President cannot, in my view, prevent the court from coming to the conclusion that the Act is a nullity. (See Gallant v. The King (1949) 2 D.L.R. 425-a Canadian case-as per Campbell, C.J. at page 430).

By virtue of the provisions of section 4 subsection 8 of the Constitution, the courts of law in Nigeria have the power, and, indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.

Even in the United States of America whose Constitution is not as detailed as ours, the frequency with which the Supreme Court of the United States decides constitutional issues and the extent of its review of the exercise of constitutional power by the Legislative and Executive Branches, has had the cumulative effect of moving away from the view that constitutional adjudication is only collateral to the essential judicial task of deciding cases. It has moved towards the notion that the primary function of the Supreme Court is to ensure that other organs of government observe constitutional limitations. The principal changes, which are well known, have been the relaxation of the requirements of standing (Flast v. Cohen (1968) 392 U.S. 83), the expansion of the declaratory judgment (Katzenback v. McClung, (1964) 379 U.S. 294), the use of the class action (Roe v. Wade (1973) 410 U.S. 113), and the narrowing of the category of non-justiciable questions (Baker v. Car (1962) 369 U.S. 186 and Powell v. McCormack (1969) 395 U.S. 486).

There is one final point with which I would like to deal. In the course of his argument before us, the learned Attorney-General of the Federation submitted, and this submission was echoed by some of the State Attorney-Generals and by some of the Counsel appearing before us, that since the plaintiff (Bendel State) has collected its own allocation of the revenue and has, therefore, taken benefit under the Act, it is not open to it to question the Act's validity. It was further submitted that the plaintiff, as a consequence, has waived its right to ask for a declaration as to the validity of the Act. As authority for this proposition the learned Attorney-General of the Federation referred us to Robertson v. Minister of Pensions (1948) 2 All E.R. 767 at p. 770; Clerk (State Treasurer) v. Barnard & Ors. 107-108 U.S. (2 S.C. Reporter) 878; and Parden v. Terminal Railway of Alabama State Dock Development Dept. 376-378 U.S. or 84A S.C. Reporter 1207 at pp. 1212-1215.

I must say right away that none of the above cases is in pari materia. The facts of each of the cases are different from those of the case in hand. I will now proceed to consider the submissions of the learned Attorney-General. In the first place, and bearing in mind the transitional provisions of section 272 of the Constitution, there is no evidence before us that the plaintiff (Bendel State) who must have received its 1980 Allocation by virtue of those transitional provisions had full knowledge of the fact that it received its 1981 allocation by virtue of the Revenue Allocation Act (No. 1 of 1981) complained of, particularly as the sum which it received monthly between April and December, 1980 is exactly the same monthly sum which is being paid it from the beginning of the current financial year 1981 (See paragraphs 9-14 of the Affidavit of Simeon Eyoma Okotie, the Accountant-General of Bendel State, dated 29th June, 1981, filed in reply to that dated 24th June, 1981, filed by Dr Augustine Obozuwa). Section 272 of the Constitution reads-

"272. Pending any Act of the National Assembly for the provision of a system of revenue allocation between the Federation and the States, among the States, between the States and local government councils and among the local government councils in the States, the system of revenue allocation in existence for the financial year beginning from 1st April, 1978 and ending on 31st March, 1979 shall, subject to the provisions of this Constitution and as from the date when this section comes into force, continue to apply;

"Provided that where functions have been transferred under this Constitutions from the Government of the Federation to the States and from the States to local government councils the appropriations in respect of such functions shall also be transferred to the States and the local government councils, as the case may require."

In any case, as Chief Williams has rightly pointed out, an illegality, such as the one complained of, is a valid answer to a plea of estoppel in pais.

There is another answer to this submission. Neither a State nor an individual can contract out of the provisions of the Constitution. The reason for this is that a contract to do a thing which cannot be done without a violation of the law is void. See Maritime Electric Co. Ltd. v. General Dairies Ltd. (1937) A.C (P.C.) 610 at pp. 620-621; and South Ottawa v. Perkins, U.S. Supreme Court Reports, (24 Lawyers Edition) 154 at page 157 where Mr Justice Bradley who delivered the opinion of the court observed, rightly in my view, as follows:-

"There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an Act of the Legislature could thus be a law in one case and for one party, and not a law in another case for another party; a law today, and not a law tomorrow; a law in one place, and not a law in another in the same State. And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case." More importantly, it seems to me that the plaintiff (Bendel State), when it received its allocation of revenue, received it in its capacity as a government with obligation to make financial provisions for the services which it provides for the people of Bendel State. It will not only not be in the public interest, but it will also contrary to public policy to refuse money needed for such services on the ground that there is a claim with respect to the allocation in court. (Spencer Bower on "Estoppel by Representation"-2nd Edition-paragraph 141 at page 135). It would have been most irresponsible for it to do so. In these circumstances, the contention that Bendel State is estopped from instituting these proceedings or that it has waived its right to sue has no merit whatsoever and I reject it in its entirety.

For the reasons which I have set out above, my answer to the questions in paragraph 1 (a) of the originating summons is that both sections 54 and 55 of the Constitution apply to the Revenue Allocation Bill. In view of the order which I propose to make, however, it is unnecessary to answer the second question asked in paragraph 1 (b) of the said summons. Pursuant to the findings which I have made earlier, I grant the declarations asked for in paragraph 2 (a), 2 (b) and 2 (d) of the said originating summons. The declaration asked for in paragraph 2 (c) of the summons is, however, refused. Consequently, I declare the Allocation of Revenue (Federation Account, etc.) Act 1981 (No. 1 of 1981) unconstitutional and therefore invalid, null and void, and of no effect whatsoever.

Having declared the whole Act null and void, it is unnecessary for me to make any declaration in the terms asked for in paragraph 2 (e) of the summons. It should be pointed out, however, that in the exercise of the wide powers granted to the National Assembly under section 149 subsections (4), (5), (6) and (7) of the Constitution vis-a-vis the allocation of revenue to the states and to the local governments within each State, care should be taken not to infringe on the powers of the States under the Constitution.

Finally, all officers, servants, and functionaries of the Government of the Federal Republic of Nigeria or any other public officer whomsoever are hereby restrained from dividing or otherwise allocating the public revenue of the Republic between the Federation and the States of the Federation or among the said States as prescribed under the said Allocation of Revenue (Federation Account, etc.) Act, 1981.

Because of the nature, complexity, and scope of the claims, I do not think I should make any order as to costs. Accordingly, I hereby order that each party should bear its own costs.

Bello, J.S.C.: The main issue presented for determination is the constitutional validity of the Allocation of Revenue (Federation Account, etc.) Act 1981 but there are other issues which also require our consideration. I agree with the reason and conclusions in the judgment of the chief Justice of Nigeria. However, because of the great public importance of the case, I shall express and deliver additional opinion on the issues. The Chief Justice has stated in his judgment that facts of the case and the submissions of the learned Attorney-General and learned Counsel. I do not intend to repeat them in my judgment except as may be necessary.

It is evident from the protracted argument before us which took 16 hearing days, that learned Counsel had put a lot of industry and research in the preparation and presentation of their respective cases. They cited and referred us to plethora of authorities, and some counsel supplied us with copies of the reports of the cases, on constitutional law and practice decided by the courts of several common law countries. While expressing my appreciation and gratitude for the invaluable assistance given to us by learned Counsel in this respect, I would like to reiterate my observation in my judgment in the case of Senator Adesanya v. President of the Federal Republic of Nigeria and Anor. (1981) 5 S.C. 112 at 149 that I would treat with due respect the rules of constitutional law formulated by the courts of the common law countries as persuasive authorities where they are appropriate in construing our Constitution but I shall at all times bear in my mind that our Constitution is unique and the solutions to our constitutional problems must invariably be found within the Constitution itself or upon its construction. I would further reiterate that great care should be exercised in the use of the rules of constitutional law formulated for countries whose constitutions are not in pari materia with our Constitution and whose ways of life are not identical with ours.

I think the warning sounded by the High Court of Australia in the majority judgment delivered by Isaacs J. in the Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd & Others (1920) 28 C.L.R. 129 at 148 while construing the Australian Constitution in comparison with the American Constitution equally applies to our Constitution in relation to the constitution of other common law countries. The learned Justice stated:

"... no more profound error could be made than to endeavour to find out our way through our Constitution by the borrowed light of the decisions and sometimes the dicta, that the American institutions and circumstances have drawn from the distinguished tribunals of that country."

Coming home, Fatayi-Williams, C.J.N., expressed similar view in Senator Adesanya v. President (supra) where he observed as follows:-

"The framers of our 1979 Constitution had all these factors in mind by providing for the many checks and balances which appear therein. In fact, a close scrutiny of its many detailed provisions will convince anyone that reliance on the decisions, whether British, Canadian, Australian, or American given on a different social and political context, will only lead to restrictive rules of locus stand which, in the interest of the need for total compliance with the provisions of our Constitution, I find it difficult to accept or countenance."

With the foregoing observations in mind, and I consider them to be the bed-rock upon which all the constitutional issues squarely rest, I shall first deal with the subsidiary issues.

Jurisdiction: Learned Counsel cited a number of American and Australian cases, such as Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803); Mass. v, Melon 262 U.S. 447 43 S. Ct. 597; The State of South Australia v. The State of Victoria (1911) 12 C.L.R. 667 at 708 and the State of New South Wales v. The Commonwealth and Ors. 46 C.L.R. 155 at 185, to support their submissions on jurisdiction. I do not think such decisions are strictly relevant to our inquiry. The American Supreme Court was primarily concerned with the interpretation as to the extent of its judicial power to "controversies" within the context of Act. III section 2(2) (b) of the United States Constitution which limited the original jurisdiction of the United States Supreme Court to, inter alia:-

"(b) controversies in which a State shall be a party." The questions for resolution by the Supreme Court in all the cases cited were: what are the characters of the controversies contemplated by the Constitution? The Supreme Court resolved that the effect of that subsection was not to confer jurisdiction upon the court on all controversies in which a state is a party but only where it is a party to a justiciable controversy that is appropriate for judicial determination: Mass v. Melon (supra).

Section 75 of the Australian Constitution provides:-"In all matters ... between States .... the High Court shall have original jurisdiction." The High Court held that the generality of the word "Matters" in this context was restricted by section 71 of their Constitution and reading the two sections together, the High Court concluded that the power vested in it was judicial power and accordingly "matters" must be read as meaning "matters capable of judicial determination": The State of South Australia. v. The State of Victoria (supra at 708).

It may be observed from the foregoing that the decisions of the American and Australian Courts were founded on the interpretations of the provisions of their respective constitutions which are not identical with the relevant provisions of our Constitution. Although section 131 of the Indian Constitution and section 212 of our Constitution are in pari materia, no Indian case relevant to the issue before us was brought to our attention.

Now, jurisdiction to determine constitutional validity of the exercise of legislative powers by the National Assembly and to entertain suits between the Federation and a State is expressly conferred on this court by sections 4 (8) and 212 (1) of our Constitution in these terms:-

"4 (8) Save as otherwise provided by this Constitution the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of court of law and of judicial tribunals established by law; and accordingly, the National Assembly or a house of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law."

"212 (1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depend."

The two sections must be read together with section 6 of the Constitution which, subject to the limitations specified therein, vests the judicial powers of the Federation in the Federal Courts. Sub section (6)(a) of the section is worth mentioning. It provides, inter alia:

"6. The judicial powers vested in accordance with the foregoing provisions of this section:

(a) shall extend, not withstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law."

Unlike the American and Australian Constitutions, it is clear from the provisions of section 212 (1) of our Constitution that a dispute within the ambit of the section must be a justiciable one. The section clearly qualifies the character of the dispute as that which involves any question, whether of law or fact, on which the existence or extent of a legal right depends. To invoke the original jurisdiction of this Court there must be a dispute as so qualified between the Federation and a State or between States.

The issue of jurisdiction was contested on three main grounds. Firstly, that there is no dispute which affected the interest of the Federation and Bendel State between the plaintiff (Bendel State) and the Federation. Secondly, that the plaintiff has failed to state or show any legal right in the originating summons. Thirdly, exercise of judicial power does not extend to examination by court of the process of law making, in other words, the jurisdiction of the Courts over the exercise of legislative powers granted by section 4 (8) of the Constitution does not extend to a determination of the validity of the internal proceedings of the National Assembly.

I think the first point may be easily disposed of from the definition of the word "dispute". The Oxford Universal Dictionary defines it as "the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion." To my mind from the papers filed and the submissions of learned Counsel, there is certainly dispute between the plaintiff (Bendel State) which says the Act in dispute is invalid while the two institutions of the Federation the Executive and the National Assembly, assert its validity and the Executive is duty bound to act upon it unless the Court declares it invalid. The dispute is real and has been hotly contested.

It appears to me that the second point was founded solely, like Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All N.L.R. 224, on the technicality of inadequacy of pleadings. This Court denied jurisdiction in that case under section 114 (1) of the 1963 Constitution, which is in pari materia with section 212 of our present Constitution, because the plaintiff (Eastern Nigeria) failed to show in its statement of claim that any legal right vested in it had been involved and the court dismissed the suit on the ground that the statement of Claim disclosed no cause of action. It is conceded that the plaintiff (Bendel State) in the case in hand had a legal right before the passing of the Act in dispute under section 272 of the Constitution to a share of the revenues in the Federation Account, which the imperative provisions of section 149 (1) of the Constitution require the Federation to maintain, and that it also has a vested right to a share of the same account by virtue of section 149 (2). It is clear from the two sections that the plaintiff has a constitutional right to a portion of any amount standing to the credit of the Federation Account. It follows therefore that the dispute between the plaintiff (Bendel State) and the Federation involves a question on which the extent of a Constitutional right of the Plaintiff depends. I do not think any authority is required to say that constitutional right is a legal right within the purview of section 212 of the Constitution. The legal right of the Plaintiff is the proportion of the national revenue it is entitled to under section 149 (2) of the Constitution, upon the proper exercise of legislative powers by the National Assembly in that regard.

It is apparent from the foregoing that the legal right of the Plaintiff is not a question of fact which must be pleaded but it is a question of constitutional law which need not be pleaded. Furthermore, the present suit is based on originating summons and not on statement of claim, hence the rules of pleadings governing Statement of Claim are inapplicable. For these reasons I find the second objection to be untenable.

I think the third objection to jurisdiction seems to be founded on the constitutional law of countries, such as the United Kingdom, having sovereign legislatures. I think it is not sufficient to point out that our National Assembly is not a sovereign legislature in the strict sense. Its legislative powers are not only restricted by the Constitution but also the mode of exercising the powers are specified therein. Any infringement of the provisions of the Constitution relating to these matters is subject to the jurisdiction of the courts by virtue of the provisions of section 4 (8) of the Constitution.

I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislative powers. However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements. Sections 52, 54, 55 and 58 of our Constitution clearly state how the National Assembly should conduct its internal affairs in the exercise of its legislative powers. That being the case, the court is in duty bound to exercise its jurisdiction under Section 4 (8) of the Constitution to ensure that the National Assembly comply with the provisions of the Constitution since "the exercise of legislative powers by the National Assembly.......shall be subject to the jurisdiction of the Court........" The objections to jurisdiction cannot therefore be sustained.

Estoppel and Waiver: It was deposed in the affidavit of Ajibola Omotade filed on behalf of the 1st Defendant that since the Act in dispute became law on 1st January, 1981, the revenue in the Federation Account has been shared among the Federal and State Governments, including the Plaintiff, and the local government councils in accordance with the provisions of the Act. The learned Attorney-General of the Federation argued that since the Plaintiff has been taking and enjoying benefit from the Act, the Plaintiff is estopped from questioning its validity. He urged us to invoke the principle of constitutional law laid down by the American courts that a person who accepts benefit from a statute cannot be heard to question its constitutionality on the ground that, by retaining its benefit, he is deemed to have waived his right to challenge its validity. Among the cases relied on by the learned Attorney-General includes: Great Falls Manufacturing Co. v. Garland 124 U.S.A. 581; Wall v. Parrot Silver, 244 U.S. 407 (37 S. Ct. 609); Fahey v. Mallonee, 332 U.S. 245 (67 S. Ct. 1552); The State v. Registrar of State Land Office, 192 Southern Reporter 519. Other cases cited include, The Equitable Life Assurance of the United States v. Bogie (1906) 3 C.L.R. 878 at 896 and Equitable Life Assurance of the United States v. Read (1914) A.C. 587 at 595 on the issue of waiver.

I have carefully perused all the cases cited by learned Counsel on the issue of estoppel and waiver in constitutional law. In my opinion, three propositions emerge from them. Firstly, with regard to private citizens, estoppel may operate against a person who avails himself of the benefit of a statute enacted for the accommodation of purely private rights and subsequently attempts to question its validity. Secondly, the law does not permit a person to contract himself out of or waive the effect of a rule of public policy laid down by a statute and consequently the courts may not invoke estoppel against a person who purported to have contracted himself out of or waived such rule. Thirdly, in relation to the application of the doctrine against a state, it is well settled by American Court that when the State makes itself a party to an action or to a contract or grant in its proprietary capacity, it is subject to the law of estoppel as other parties litigants or other contracting parties.

However, despite our several requests to learned Counsel during the hearing of the case for authorities, no relevant case has been brought to our attention showing that a State may be estopped from challenging constitutionality of a statute enacted for the general public interests of its entire citizens, such as the Act in dispute, because the State has taken benefit for its citizens from the statute.

It is significant, however, to observe that estoppel is an equitable doctrine which rests on substantial grounds of prejudice or change of position and not on mere technicalities: Ashwander v. T.V.A. 279 U.S. 288 at 348 (56 S. Ct. 466 at 472); United Overseas Bank v. Jiwani (1977) 1 All E.R. 733. The doctrine is founded on sound principle of equity which is an integral part of the law of Nigeria. I would readily apply it to appropriate constitutional cases but I would refrain from doing so in the case in hand partly because I have not been convinced that estoppel can be applied to a State under the circumstances of the case and partly because the learned Attorney-General of the Federation has not shown that the Federal Government has in any way been prejudiced by reason of the fact that Bendel State has been receiving its share of the revenue under the Act in dispute or that the Federal Government has altered its position in a way that it would not have done if Bendel State had not been receiving its share of the revenue under the Act.

Evidence: The questions relating to evidence are: When an issue is made as to whether constitutional provisions of law making had in fact been observed, can the court go behind an Act, duly authenticated and enrolled in accordance with the provisions of the Acts Authentication Act 1961, to inquire whether the Act was in fact passed by the National Assembly in the manner prescribed by the Constitution? And, for the purpose of such inquiry, if the Court can go behind the Act, can the court use reports of the proceedings of the National Assembly, reports of their committees and other legislative documents to contradict the authentication of the enrolled Act. Several cases showing the practice of some common law countries on this issue were brought to our attention.

Field v. Clark, 143, U.S. 649, 12 S. ct. 495, is the classic cornerstone of the rule of practice of the American Courts of Federal Jurisdiction and of those States whose Constitutions are similar to the Constitution of the United States. The latter Constitution requires each house of the legislature to keep and publish a journal of its own but makes no provisions regulating the internal procedure of the two houses and consequently does not provide that such internal procedure should be contained in the journals. In holding that it was incompetent for the appellant to show from the legislative journals and reports of committees that the enrolled Act omitted a section of the bill as finally passed, the Supreme Court of the United States laid down that an enrolled Act was per se conclusive evidence that it had been passed by Congress according to the form and manner prescribed by the Constitution; that it was conclusive proof of its enactment and legislative journals could not be used to contradict or impeach its authentication. The same rule was applied in Mint v. Stone, 107 U.S. 410; Harward v. Henthworth 162 U.S. 547 and Bank of New Brighton v. Nebacker. 167 U.S. 196.

However, contrary stand was taken in South Ottawa v. Perkins, 194 U.S. 260. 24 Law Ed., 154. The decision was based on the Constitution of Illinois State. The Constitution required each house of the State Legislature to keep and publish a journal and declares that certain facts, made essential to the passing of a law, shall be stated in the journal. The Supreme Court held that, in determining the validity of an enrolled Act, the contents of the journals might be used to see whether the constitutional requirements had been complied with and that if those facts were not set forth, the conclusion was that they had not transpired. The court found out from the journals that the legislative process provided by the Constitution was not followed in the passing of the Act and, accordingly, declared the Act invalid. The same principle was applied in County of San Mateo v. Pacific Railway, 13 Fed. Report 722.

It is pertinent to observe that the rules in Field v. Clark and in South Ottawa v. Perkins were founded on the construction of the respective constitution governing the case. While the rule in Field v. Clark was inferred from the provisions of the Constitution of the United States in order to give force and effect to the principle of separation of powers and to the respect due to co-equal and independent arm of government, i.e., the Legislature, the rule in South Ottawa v. Perking directly flowed from the imperative provisions of the State Constitution.

Reliance was placed on South Australia v. Commonwealth (1941) 65 C.L.R. 373 to support the contention that Parliamentary proceedings are inadmissible in Australia to challenge the validity of an Act. The ratio in that case, in my view, is that evidence of speeches in Parliament or of a report of a committee on which a legislation is based, adduced to show the purpose or motive or intention of Parliament, is irrelevant to the determination of the validity of a legislation and is therefore inadmissible. In other words, Parliamentary proceedings are not admissible to show the intention or motive of Parliament in Constitutional adjudication. I consider this case as totally irrelevant.

Bribery Commissioner v. Renasinghe (1965) A.C. 172 was given repeated prominence at the hearing of the summons before us. Section 29 of the Constitution of Ceylon set out the requirements for amending the Constitution. It further provided that the Speaker "shall" endorse a certificate on the bill for amendment showing the requirements had been complied with and that the certificate "shall be conclusive for all purposes and shall not be questioned in any court of law." The contention that the court could not go beyond an official copy of an Act to see if the original bill contained the speaker's certificate was rejected by the Privy Council, per Lord Pearce, at pp. 194-5, in these words:-

"The fact that the 1958 Bill did not have a certificate and was not passed by the necessary majority was not really disputed in the Supreme Court or before their Lordships' Board, but it has been argued that the court, when faced with an official copy of an Act of Parliament, cannot inquire into any procedural matter and cannot now properly consider whether a certificate was endorsed on the Bill. That argument seems to their Lordships unsubstantial, and it was rightly rejected by the Supreme Court. Once it is shown that an Act conflicts with a provision in the Constitution, the certificate is an essential part of the legislative process: (stet). The court had a duty to see that the Constitution is not infringed and to preserve it inviolate. Unless, therefore, there is some very cogent reason for doing so, the court must not decline to open its eyes to the truth. Their Lordships were informed by counsel that there were two duplicate original Bills and that after the Royal Assent was added one original was filed in the Registry where it was available to the court. It was therefore easy for the court, without seeking to invade the mysteries of parliamentary practice, to ascertain that the Bill was not endorsed with the Speaker's certificate.

The English authorities have taken a narrow view of the court's power to look behind an authentic copy of the Act. But in the Constitution of the United Kingdom there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers. There was, therefore, never such a necessity as arises in the present case for the court to take any close cognisance of the process of law-making. In Edinburgh Railway Co. v. Wauchore, however, Lord Campbell said: "All that a court of justice can do is to look to the parliamentary roll." There seems no reason to doubt that in early times, if such a point could have arisen as arises in the present case, the court would have taken the sensible step of inspecting the original."

Bribery Commissioner's case does not appear to me to be an authority on the efficacy of conclusiveness of an enrolled Act within the compass the issue on evidence has been canvassed before us, but it is an authority for saying that where legislative process provided by the Constitution was not followed in the passing of a legislation, the court has a duty to declare the legislation invalid.

Now, in any civil or criminal proceedings in Nigeria, reports of the proceedings of the National Assembly, reports of their committees and other legislative papers are admissible in evidence by virtue of sections 73 (1) (c) and 112 (b) of the Evidence Act read together with section 23 of the Legislative Houses (Powers and Privileges) Act, Cap. 102, Laws of the Federation of Nigeria. However, it has been argued that these documents are inadmissible to rebut the conclusiveness of the certificate of the Clerk of the National Assembly under section 2 of the Acts Authentication Act 1961, which provides:

"2 (1) The Clerk of the Parliaments shall forthwith after enactment, prepare a copy of each Bill as passed by both Houses of Parliament or by the House of Representatives as the case may be, embodying all amendments agreed to, and shall endorse on the Bill and sign a certificate that the copy has been prepared as prescribed by this section and is a true copy of that Bill.

(2) The Clerk of the Parliaments shall as from time to time directed by the Speaker of the House of Representatives prepare a schedule of Bills passed at any time during a session and intended to be presented for assent; and shall certify on the schedule that it is a true and correct record. The schedule shall set forth the long title of a Bill and summary of its contents and the respective dates on which each Bill passed each House of Parliament; and subject to the provisions of this section, when signed by the Clerk of the Parliaments the certificate shall be conclusive for all purposes ........

(3) Nothing in this section shall abrogate any special requirements prescribed for the entrenched sections of the constitution Order or the Constitution of the Federation........"

I endorse the conclusion reached by the Chief Justice in his Judgment that the conclusiveness of such certificate "for all purposes" is subject to the provisions of the Constitution and is not intended to be a clog to the exercise of the jurisdiction of the Courts under section 4 (8) of the Constitution. I reaffirm that the courts can go behind such

certificate and can admit legislative papers to find out if, in the passing of the Act, the National Assembly complied with the process of law making provided by the Constitution.

Construction of the Constitution and the Allocation of Revenue (Federation Account, etc.) Act, 1981.

One of the cardinal pillars of our system of government is that the legislative powers of the Federation is vested in the National Assembly, consisting of a Senate and a House of Representatives: section 4 of the Constitution Sections 52, 54, 55 and 58 thereof prescribe the procedure the National Assembly should follow in the passing of a money Bill into law. I agree that the bill in this case is a money bill.

It is crystal clear from the provisions of the above mentioned section that a bill, whether money or non-money, must be passed in the same form by both the Senate and the House of Representatives, except where the provisions of the Constitution relating to joint sitting of the two Houses apply before the bill has been passed by the two Houses in different forms, section 55 (2) empowers the President of the Senate within the time stated therein to convene a meeting of the Joint Finance Committee of the National Assembly established pursuant to section 58 (3) "to examine the bill with a view to resolving the differences between the two Houses."

There is no problem where the committee fails to resolve such differences because section 55 (3) provides that the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such joint meeting, it shall be presented to the President for assent.

The problem arises where the Committee, as in the case in hand, appears to have resolved the differences between the two Houses. I consider the confusion in the name of the Committee that met and resolved the differences in this case to be a matter of mere nomenclature. The crucial questions are: What was the force and effect of such resolution? Was such resolution tantamount to the passing of the bill within the context of the Constitution and was it proper to send the bill to the President for assent? Alternatively, was such resolution a mere recommendation which must be reported to the two Houses for acceptance or rejection by either house? The Constitution is silent and makes no express provisions from which the answers to these questions may be found. The answers can only be inferred on the construction of the provisions of the Constitution relating to the legislative powers of the National Assembly including those provisions which prescribe the mode of exercising such powers.

It appears that all the functionaries of the Legislature and the Executive thought that the resolution of the differences by the Committee was tantamount to the passing of the bill and accordingly the bill was presented to the President and he signified his assent. Were they right?

In parenthesis, it may be pertinent to point out that such problem relating to money bills could not have arisen in England, Australia and India because "money bills" within the context of their respective Constitutions must originate from the lower Houses. In England, the House of Lords has no power to amend money bills at all. In Australia and India, the Senate and the Council of States respectively have no power to amend also but may suggest amendments to money bills which the other Houses may accept or reject. See section 1 (1) of Parliament Act 1911; section 53 of the Australian Constitution Act; section 109 of the Indian Constitution. In Canada, the Constitution is silent as to the right, which the Senate assumed, of the Senate to amend money bills: see section 53 of the British North American Act, 1987.

It is only in the United States that the Constitution expressly conferred on the Senate the power to propose amendments to money bills which must originate from the house of Representatives, as on other bills: Article 1 section 7 (1) of the U.S. Constitution. Although there is no constitutional provision to that effect, it has been the convention of the American Congress that when bills, whether money or non-money, are passed in different forms by the two Houses, a joint conference of a committee is appointed by the two Houses to iron out the differences and the committee would report its decision to the House for acceptance or rejection by either House: See Adrian and Press: The American Political Process, p. 440.

With the above observations in mind, I entirely agree with the construction put by the Chief Justice on sections 4 (1), 54, 55 and 58 of our Constitution and with his conclusions that the Joint Finance Committee has no power to decide whether a bill shall be passed into law; that whatever decision the Committee takes on a bill referred to it cannot be final and that until the two Houses, sitting either separately or jointly, pass the bill or the committee's version of it, it is not a bill passed by the National Assembly. I further agree that the Act in dispute was not passed in accordance with the legislative process laid down by the Constitution. I declare it unconstitutional and void.

I agree with all the declarations and orders made by the Chief Justice.

Idigbe, J.S.C.: I have read in advance the judgment which has just been delivered by my learned brother, Fatayi-Williams, Chief Justice of Nigeria and for the reasons given by him, I would also grant the declarations sought by the plaintiffs in the originating summons the details and particulars if which I propose to set out late in this judgment. However, I consider it necessary to make some comments on the principal issues involved in these proceedings and in respect of which a great deal of argument was advanced by learned Counsel on both sides.

The background to this litigation and all the relevant facts have been so adequately canvassed in the judgment of my Lord, the Chief Justice, and I can proceed at once to consider what appears to me to be the major issues with which we are concerned; these relate to (1) the jurisdiction of the court to entertain the claims of the plaintiff; (2) the nature of the evidence which can be received in these proceedings, and the extent to which this court may-assuming that it is entitled to receive them in evidence-make use of the recorded proceedings of the National Assembly (i.e. the Senate and the House of Representatives) in resolving issues relevant to the claims before us; (3) the correct interpretation to be given to sections 54, 55, 58 and 149 of the Constitution of the Federation of Nigeria-hereinafter referred to, simply, as "the 1979 Constitution" or "the current Constitution"-and the scope of their application to the claims before us; and finally (4) the extent to which the equitable doctrines of estoppel in pais (or estoppel by representation) and waiver can apply to the proceedings in hand.

JURISDICTION

To my mind the principal sections of the 1979 Constitution relevant to the issue of jurisdiction are subsection (8) of section (4) and subsection (1) of section 212; these read:

"4- (8): Save as otherwise provided by this Constitution, the exercise of Legislative Powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law." "212-(1): The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends" [Italics by me for emphasis].

The argument advanced against the existence of jurisdiction to entertain the claims before us centred on the word "dispute" and the clause: "in so far as that dispute involves any question on which the existence or extent of a legal right depends." Learned Counsel who maintain this argument, to mention a few, include Chief Fani-Kayode, for the 20th and 21st defendants, Chief Onyiuke, for the 22nd and 23rd defendants, T. Fubara, Deputy Solicitor-General for the Rivers State (the 18th defendant) and those other counsel who associate themselves with the argument of the learned Attorney-General of the Federation, Chief Akinjide (hereinafter referred to simply as "the Federal Attorney-General"). I should, however, mention here, in passing that the stance of the Federal Attorney-General on this issue was, indeed, to my mind somewhat unclear, if not uncertain; for initially he conceded that this court had jurisdiction by virtue of section 212 aforesaid to entertain the claims but he later withdrew this concession. Put shortly, the sum of the argument against the jurisdiction of this court is this: For the court to have jurisdiction to entertain the claims the plaintiff must show not only that a dispute exists between it and the Federation but also that this dispute affects the existence or exercise of its legal right; and this must appear ex facie (i.e. on the face of) the originating summons. Accordingly, it was not enough for the State of Bendel to maintain that there was procedural error in the passage into law of the Bill with which we are concerned in the case, that is, a Bill "for an Act to prescribe for distribution of Revenue accruing to the Federation Account between the Federal and State Governments and the Local Government Councils in the States; and the States; and the formula for distribution amongst the States inter se......" (hereinafter referred to as "the Revenue Allocation Bill"); the plaintiff-state must go on further to show that its legal right was, affected or threatened as a result of the said procedural error. It was submitted that ex facie the originating summons in this case was deficient in this respect and consequently the claims ought to be dismissed. I should mention here that Chief Fani-Kayode later shifted ground and conceded that since the "defective summons" can be amended the claims ought not to be dismissed but, unless amendment of the summons to show ex facie a violation of the plaintiff's legal right or a threatened violation of the same was carried out at the instance of the plaintiff, should merely be struck out. According to Chief Onyiuke the plaintiff-state has built its case on the basis that mere non-compliance with the requirements under the 1979 Constitution for the passage into law of the Revenue Allocation Bill gives it the right to question in this court its validity as a law; but this was not enough. It is his submission that the State of Bendel must do more than this. Learned Counsel concedes that by virtue of Section 272 of the 1979 Constitution the plaintiff has a vested legal right to some undefined portion of the "Federation Account" created under section 149, but he contends that since the originating summons has failed to show ex facie that this vested right was either destroyed or its existence threatened by the alleged non-compliance with the procedure laid down under the 1979 Constitution, for the passage into law of the Revenue Allocation Bill, there is no justiciable dispute within the purview of section 212 aforesaid.

In a further submission on the issue of jurisdiction, Chief Fani-Kayode drew the attention of the Court to Article 3 (2) of the Federal Constitution of the United States of America (hereinafter referred to as "the United States Constitution") which, in view, gave much wider powers to the United States Judiciary than section 212 under consideration has given to this court; the courts in the United States of America, he submits, have however given very narrow interpretation to what constitutes a "justiciable dispute" or "controversy" under Article 3 (2). Learned Counsel had, therefore, urged upon us to take the same course in our consideration of what constitutes a justiciable dispute under section 212 of our Constitution; and if we do, it is his submission that we are bound to reach the conclusion that we have no jurisdiction to entertain the claims in this case. With reference to sections 272, 149 (2), 149 (3) 149 (4) 149 (5) and 149 (6) of the 1979 Constitution Chief Fani-Kayode contends that these sections do not give the States any specific or particular share of the "Federation Account"; and accordingly they cannot be relied upon by the plaintiff-state to found jurisdiction in this court for entertaining its claims. For the foregoing proposition reliance was placed on the case of Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All N.L.R. 224 (a case generally referred as "the Census Case").

On the contrary, he contends, subsections 2, 3, 4, 5 and 6 of section 149 vests extremely wide powers in the National Assembly with regard to the distribution of monies from the "Federation Account" among the Federation and the States so that whatever rights, if any, the States may have with respect to monies in that account, such rights were in the view of learned Counsel, merely "political" NOT "legal"; and accordingly, such rights were not "justiciable".

For this proposition reliance was placed on (1) Deputy Federal Commissioner of Taxation of New South Wales v. W.R. Moran Pty Ltd. (1938-39) 61 C.L.R. 731; (2) Colin Howard on Australian Federal Constitutional Law 2nd Edition (1979) subject: Legislative Schemes at P.88.

I now turn to consider the argument and submissions of learned Counsel in the preceding paragraphs; however, for due appreciation of the view which I take of the argument and submissions I consider it desirable to set out at this stage the text of section 272 of four Constitution and article 3 (2) of the United States Constitution. Although I will, if necessary, later deal with the reference made to all the subsections of section 149 I think it is only necessary at this stage to set out the text of subsection (2) of that section; and this reads:

"149- (2): Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments, and the Local Government in each State, on such terms and in such manner as may be prescribed by the National Assembly."

"272: Pending any Act of the National Assembly for the provision of a system of revenue allocation between the Federation and the States, among the States, between the States and Local Government Councils and among the Local Government Councils in the States, the system of revenue allocation in existence for the financial year beginning from 1st April, 1978 and on 31st March, 1979 shall, subject to the provisions of this Constitution and as from the date when this section comes into force, continue to apply:-

[Italics by me for emphasis].

Article 3-(2) of the United States Constitution reads:

"111- (2): The Judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority;......to Controversies to which the United States shall be a Party; -to Controversies between two or more States between a State and Citizen of another State;......"

[Italics by me for emphasis].

Now, there is no doubt that until a new system of revenue allocation for the country has been lawfully introduced by the National assembly, the plaintiff-state, by virtue of the provisions for the system of Revenue Allocation based on section 141 of the 1963 Constitution (Act No. 20 of 1963) and section 272 of the 1979 Constitution and, in particular, "the system of revenue allocation in existence for the financial year beginning 1st April, 1978 and ending 31st March, 1979", (hereinafter referred to as "The Old Revenue Allocation Law"), has a vested legal right to a specific share of the "Federation Account" (under section 149 of the current Constitution; but also known as the Distributable Pool Account" under section 136 of the 1963 Constitution).

Reference was made in the course of argument to "the Census Case" that is, A.G. of Eastern Nigeria v. A.G. of the Federation (1964) 1 All N.L.R. 224. I think it is convenient here to make a little comment on that case. The pith of the complaint of the plaintiff-state in that case was that not only was the census inflated, it was also vitiated by irregularities; and the acceptance of its figures could affect (1) the demarcation of constituencies under section 43 of the 1963 Constitution, and (2) the making of monetary grants under section 141 of that Constitution. This court after observing that section 141 aforesaid, which directs that quarterly payments of specified fractions of the Distributable Pool Account be made to each Region by the Federation, cannot be altered save in the manner provided (i.e. the 1963 Constitution) held (1) that the court had no jurisdiction to dictate to Parliament on what it may take into account for amending section 141 aforesaid should it desire to carry out such an amendment. The argument of the plaintiff-state on this issue had been that wrong census figures might lead to the alteration, to the detriment of Eastern Nigeria, of allocation from the Distributable Pool Account as fixed by section 141. But section 141 could be altered only by a vote of two-thirds of the members of each House of Parliament and the consent of each Legislative House of at least three Regions (see Section 4 of the 1963 Constitution). It was the view of the court that while it had jurisdiction, in certain circumstances, to declare some action of Parliament unconstitutional, it had no jurisdiction to dictate to Parliament what material it was to take into account in exercising its powers to amend the Constitution (see (1964) 1 All N.L.R. pp. 231-232]. This court also held.

(2) that it is Nigeria that is divided into constituencies for election to the House of Representatives; that no territory or Region has a legal right to have any particular number of constituencies for election to that House or to a specified number of seats in that House. On this issue, the argument of the plaintiff-state had been that acceptance of wrong census figures would affect the demarcation of electoral constituencies. However, Brett J.S.C. delivering the judgment of the court pointed out that: (1) so far as concerns constituencies, the number in respect of the Eastern House was prescribed in the Regional Constitution and the demarcation was the responsibility of a Regional "competent authority" which was not required to adopt for this purpose population figures given in the national census; (2) as regards the Federal House of Assembly, the number of members was again prescribed in the Federal Constitution and the Electoral Commission had to divide the whole country into an equivalent number of constituencies (see section 51 of the 1963 Constitution) and no Region-in the circumstances-was given a legal right to any particular number of proportion of constituencies;

(3) it is Nigeria NOT the territory (i.e. Region) that is divided into constituencies and so "even if it is true that acceptance of incorrect census figures.......by constituencies in any of the territories than would be if correct figures were adopted, we cannot hold that any legal right vested in the territory as such would be affected" (see (1964) 1 All N.L.R. 229-231]. It is significant however that the Supreme Court in the course of its judgment further observed:-

"In the course of his argument the Attorney-General of the Federation made a number of submissions as to the right of the Region to challenge the administration of an admittedly valid law....

In reaching our decision we have found it necessary to do no more than apply the provisions of the Constitutions...............to the facts of the present case, and we give no general ruling as to the legal rights of a Region in other circumstances......"

[Italics by me for emphasis].

Personally, I take the view that the decision in the "Census Case" ought to be confined to the special facts in that case, (2) the issue relating to the legal or political right of a territory to the accuracy of a census under the 1963 Constitution, and the special provisions therefore as well as (3) the overall powers of the court over Parliamentary actions under the 1963 Constitution. I must say with very great respect that, for my part, I find some difficulty in appreciating that portion of the judgment which, happily appears to me to be obiter, in so far as it tends to decide what constitutes the special circumstances in which the court may have jurisdiction to entertain a claim based on inaccurate census figures; portion reads:-

"....It should be remembered, moreover, that a certain margin of error is unavoidable in a census involving many millions of people and while the court may be competent to decide, as the court is asked to decide in this case, that irregularities have been such that no reasonable person could accept the figures produced, it is essentially a political matter, where the irregularities FALL SHORT of that, to decide what margin of error is acceptable" [see (1964) 1 All N.L.R. at 231 2nd paragraph: italics and capitals by me for emphasis].

As regards the present case, we cannot shut our eyes to the provisions of section 272 of the 1979 Constitution; that section-as I pointed out earlier-provides the plaintiff-state with a vested legal right which can only be lawfully altered by a law lawfully (that is, duly and constitutionally) enacted; and unlike the position of this court under the 1963 Constitution-which, incidentally, has no provision similar to section 4 (8) of the current constitution (a sub section on which I propose to comment later in this judgment)-this court now has much wider "supervisory" powers with reference to actions of the National Assembly. It seems to me quite clear that any law, which actually interferes (or, as appears from the gravamen of the complaint in this case, is likely to interfere, or could interfere) with the vested legal right of the plaintiff-state by virtue of section 272 aforesaid, presents the basis of a "dispute.........on which the existence or extent of a legal right depends" within the purview of section 212 of the 1979 Constitution; and if, as here, one of the parties says that a Bill on which such a law is founded is not validly passed and the other says it is, there is in my view, no question that this court has the necessary jurisdiction under section 212 aforesaid to entertain a claim founded on such a dispute. It is conceded on both sides and, in any event, it is clear from the affidavits filed in this case that there is a dispute between the plaintiff-state and the Federation (i.e the Federal Government, as defendant) as to whether the passage into law of the Revenue Allocation Bill is, indeed, lawful. One other point I would like to mention is that the first part of subsection (2) of section 149 of the 1979 Constitution, in any event, provides the States (plaintiff inclusive) with a vested legal right to have the "Federation Account" divided initially into two sections, one for the State Governments, the other for the Federal Government; the terms or manner under which this division or subsequent distribution is to be done is yet another matter. For the purpose of the issue under consideration, however, it appears to me unnecessary for us to decide whether the States have a political or legal right on "the terms or manner to be prescribed by the National Assembly" in respect of the distribution pursuant to the provisions of section 149 (2). As regards the principal issue, however, I hold the view that it is of considerable interest to the States to see that a law which provides a machinery for the distribution or division of the "Federation Account" between the State Governments on the one hand and the Federal Government on the other is validly passed in order to protect their legal right to their respective shares under the division. The plaintiff-state is, therefore, in my view, entitled to insist that a law which either (1) affects its existing legal rights under section 272 aforesaid or (2) establishes its legal right to a share in the "Federation Account" under section 149 (2) aforesaid (i.e. in place of its existing right under section 272 aforesaid) must be constitutionally valid. In the circumstances I must hold that this court has jurisdiction to entertain the claims in this case. The position appears to me, indeed, so clear that I require no guidance from decisions of the United States Supreme Court and the High Court of Australia which have been cited to us in the course of argument. Of the three Common Law countries with written constitutions-America (United States), Australia and India-to which our attention was drawn only Article 131 of the Constitution of India bears a striking and close resemblance to section 212 of the 1979 Constitution; and no decision of the Supreme Court of India on Article 131 aforesaid which derogates from the view I take of the issue has been cited to us. At a later stage of this judgment I will deal with the point raised by Chief Fani-Kayode and Chief Onyiuke on the failure of the plaintiff-state (1) to show ex facie the originating summons that its vested legal right was affected or threatened by the alleged unlawful passage into law of the Revenue Allocation Bill and, (2) to adhere strictly, in framing its claims in the originating summons, to the provisions of Order 5, rule 2 of the Supreme Court Rules 1977.

EVIDENCE

Considerable argument was advanced on both sides as to whether (1) this court can go behind the certificate issued by the clerk of the National Assembly under the Acts Authentication Act, No. 50 of 1961 and inquire into the validity, accuracy or authenticity of a law certified under such a certificate to be a true copy of a Bill passed into law by the National Assembly, and (2) this court is entitled to receive in evidence records of votes and proceedings in the National Assembly for the purpose of an inquiry as to the validity or constitutionality of any law passed by the National Assembly. Section (2) of the Acts Authentication Act provides in effect that the Clerk of the National Assembly should from time to time prepare a schedule of Bills passed during the session and intended to be presented for assent of the President and should also certify on the schedule that it is a true and correct record. This schedule should set forth the long title of the Bills, summary of their contents and the dates each of the Bills was passed by each Chamber of the National Assembly; and when so signed by the Clerk of the National Assembly, the certificate shall be conclusive for all purposes (see section 2 (2) of Act No. 50 of (1961). The main submission relating to this issue came from the Federal Attorney-General and Chief Onyiuke, learned Counsel for the 22nd and 23rd defendants; the latter prefixed his submission on this issue by a general statement that section 2 of the Acts Authentication Act "raises a presumption of validity and regularity of all formalities by the National Assembly leading up to the Authentication" and the presumption, in his view, was not a rebuttable one. When the court drew his attention to subsection (8) of section 4 of the 1979 Constitution Chief Onyiuke submitted that (1) the power of the court under that subsection was not wide enough to enable it to go behind the certificate of authentication under Act No. 50 of 1961 issued by the Clerk of the National Assembly in respect of a law passed by that body, (2) the Revenue Allocation Bill had already been passed into law as Act No. 1 of 1981 (Exhibit SC 11); and the certificate of the Clerk of the National Assembly (Alhaji Gidado Idris) appearing at the end of the relevant schedule (Exhibit SC. 6) shows that it was passed by the House of Representatives on 22-1-81; by the Senate on 15-1-81 and by the Joint Committee on Finance on 29-1-81. Indeed, in Chief Onyiuke's view, "there is nothing new in subsection (8) of section (4)." All written Constitutions which provide for "Separation of Powers" (i.e. of the Executive, Legislature and the Judiciary), according to the submission of Chief Onyiuke, vest the judiciary (under such constitutions) "with inherent power of control of legislative actions" for this proposition reliance was placed by him on the decision of Marshall C.J. in Marbury vs. Maddison (1802) 1 Cranch 137; "The Courts in America" he said "do not go behind a certificate which authenticates the validity of an enrolled Bill (i.e. law) to question its validity"; nor do they admit in evidence journals or other records and minutes of proceedings in the Congress in matters such as the one in hand-for in the Congress in matters such as the one in hand-for this submission reliance was placed on the case of Field v. Clarke (1892) 143, U.S. 649 also 12 Supreme Court Reporter 495 which, according to Chief Onyiuke, is "on all fours with the case in hand." Finally, learned Counsel for 22nd and 23rd defendants commended to us the reasons advanced in Field v. Clarke by the Supreme Court of the United States against the admission in evidence of journals of the Congress even though (as Chief Onyiuke claims) unlike the situation in Nigeria the United States Constitution enjoins both Chambers of the Legislature in America to keep journals of records of all proceedings therein.

Chief Akinjide, the Federal Attorney-General, also urged the court not to use the contents of the proceedings in the National Assembly to impeach the validity of an "enrolled law" or "authenticated Bill" (that is, a law whose validity has been certified by the Clerk of National Assembly pursuant to the Acts Authentication Act of 1961). He was of the same view as Chief Onyiuke that there is hardly "anything new" in section 4 (8) of the 1979 Constitution which he claimed to be "in pari materia" with Article 3 (2) of the United States Constitution"; although, soon after maintaining this stand, he conceded in answer to a question from the court that there is no provision in the United States Constitution which is, indeed, "exactly similar" to the provisions of section 4 (8) of our Constitution. We were then referred by the Federal Attorney-General to a number of decisions in the courts of the United States; and these include:

(1) The State vs. Martin 38 W.N. 2nd 834 at 840-41.

(2) Field vs. Clarke (supra) at 302-306 of 143 U.S.

(3) Evans vs. Brown 30 W Ds 514 at 525-527

(4) Harwood vs. Wenthworth (1896) 162 U.S. 1069

(5) Flint vs. Stone 220 U.S. 389 at 410 and the Australian case of South Australian and another vs. The Commonwealth and another (1941) 65 C.L.R. 385 and 410.

However, Chief Fani-Kayode, learned Counsel for the 20th and 21st defendants was of the view that the records of proceedings of the National Assembly if and when received in evidence "can only be relevant to prove whether or not the National Assembly complied with the express provisions of the constitution relating to the legislative power of that body" that is, the passage into law of a bill.

In his own submission, Chief Williams learned Counsel for the plaintiff maintained that in cases of this nature where evidence of the court of proceedings in the National Assembly is necessary to assist the court in reaching a decision, the court is entitled to "take judicial notice of relevant evidence from any reliable source"; for this proposition Chief Williams relied on the cases of:-

(1) Australian Communist Party v. The Commonwealth 83 C.L.R. 1 at 276;

(2) Commonwealth Freighters Property Ltd. v. Sneddon 102 C.L.R. 280; at 293;

(3) Breen v. Sneddon 106 C.L.R. 406 at 411;

(4) South Ottawa v. Perkins 24 United States Reports (Lawyers Ed. 1st Series) 154 at 156.

(5) Sections 72, 73, 112 (b) of the Evidence Act Cap 62 Vol. 11 1958 Ed. of the Laws of the Federation of Nigeria. With regard to section (2) of Acts Authentication Act, Chief Williams submitted that a certificate of the Clerk of the National Assembly issued under that section cannot preclude this court from making any inquiry as to the correctness of the procedure adopted by the Legislature in the passage of the Bill on which the law was founded, into law. Reliance was placed by learned Counsel for this proposition on (a) section 4 (8) of the 1979 Constitution (b) Field v. Clarke (1892) 36 U.S. Lawyers Ed. 1st series 249 particularly at 302/303; 304 and 305 (c) South Ottawa v. Perkins 24 U.S. Lawyers Ed. 1st Series 154 at 156 (d) Bribery Commissioners v. Ranasinghe (1965) A.C. 172 (e) Princess Case 77 E.R. 496 (f) Gallant v. The King (1949) 2 D.L.R. 425 at 428 and (g) Harris and others v. Donges (1952) 68 T.L.R. 1245 at 1263.

In now turn to deal with the issues relating to (1) the reception in evidence of records or journals of the National Assembly and (2), the power of this court to get behind the certificate, given or issued under the Acts Authentication Act No. 50 of 1961 and which certifies the authenticity or validity of an enrolled Act or Law, for the purpose of pronouncing on its validity under the provisions of the Constitution. In the first place, I reject the submission which has been urged on us that there is "nothing new" in subsection (8) of section (4) of the 1979 Constitution; and, in particular, that part of the submission which seeks to establish-in the words of learned Counsel for the 22nd and 23rd defendants-that "it merely recognises the plenitude of power of the Judiciary under any written Constitution which accepts and embraces the doctrine of "separation of powers" (i.e. of the Executive, Legislature and the Judiciary); nor do I find acceptable the submission of the learned Federal Attorney-General that there is complete parity in the provisions of the subsection in question and those of Article 3 (2) of the United States Constitution. The language of Article 3 (2) aforesaid is not as clear, nor its provisions as wide, as section 4 (8); and this was why it took several years of speculation by legislators and jurists, considerable judicial exegeses and contradictory court decisions, on the issue, to arrive at the exact meaning and scope of the provisions of paragraph (2) of Article 3 aforesaid. That that is so, is evident from the course of events beginning with the promulgation of the Article in question down to the judgment of Marshall, C.J. in Marbury v. Madison (Supra). In order to lend weight to the scope of "Judicial Power of Review" which that Article intended, it was found necessary soon after promulgating that Article to provide additional enactment contained in the 25th section of the Judicial Act of 1789 which vests the United States Supreme Court with power of review of State Legislation. Referring to the imprecise language of the Constitution on the power of the Judiciary it has been said that "Judicial Review of Acts of Congress is not provided for in the Constitution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is assumed. In the first place, the term "cases arising under the Constitution" is just as valid a textual basis for the one type of constitutional case as the other; and in the second place, it is clearly indicated that acts of Congress are not "supreme law of the land" unless they are in "pursuance of the Constitution"....................................... [see The Constitution of the United States Analysis and Interpretation prepared

by the Legislative Reference Service; Library of Congress; Edited by Edwin S. Corwin (1953) at P. 556; italics by me for emphasis]. There remained a divergence of views on the precise scope and nature of the power of review intended by Article 3 (2) until the decision of Marshall C.J. Marbury v. Madison (Supra) settled the issue in the part of the judgment which states-

..........the particular phraseology of the Constitution........confirms and strengthens the principle supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void........" [see 1 Cranch 137 at 180].

Earlier in the Judgment the learned Chief Justice had observed:-

".......It is emphatically the province and duty of the judicial department to say what the law is..........If two laws conflict with each other, the courts must decide on the operation of each...........If then the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such ordinary act, must govern the case to which both apply" [see 1 Cranch at 175-180].

Happily, we are not beset with the difficulty which the language of Article 3 (2) engendered; subsection (8) of section (4) expressly provides that "the exercise of the legislative powers of the National Assembly or a House of Assembly, shall be subject to the jurisdiction of courts of law.............and the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust" that jurisdiction. We are not concerned here with the question whether or not this court has power of "Judicial Review" let alone the subsidiary question whether its possession of such power is inherent under, or arises by express provision of, the Constitution. We are concerned here with the scope or extent of the power in order to establish what matters we can properly take into consideration in the exercise of this power.

A number of decisions of the courts in the United States were cited to us in the effort to prevent the admission in evidence of records of votes and proceedings of the National Assembly. But a careful reading of these cases show that even in the United State of America the decisions of the courts have varied on this subject. It is just as easy to find a multitude of decisions in favour of, as it is to find decisions against, the admissibility of these documents; this is obvious in the judgment of Bradley F. in Town of South Ottawa v. Noah Perkins; the Board of Supervisors of Kendall County (1877) 24 U.S. 1st Series Lawyers ed. 154. Indeed, the United States Supreme Court held in this case (South Ottawa) that it was competent for the court in determining the validity of an enrolled bill, to consult legislative journals; but it resiled from its decision on this issue when, 15 years later, it made a volteface in the case of Field et alias v. Clarke, Collector (1982) 143 U.S. 649 also 12 Supreme Court Reporter 495 [see particularly p 500 2nd paragraph] and reached a contrary decision. I pause to observe that South Ottawa (supra) were each decided on the Constitutions of the State of Illinois (the peculiar provisions of which led to some aspects of the conclusions of the court) and the United States (Federal) severally.

In Field vs Clarke (supra) the court was treated copiously to arguments in favour of and against admissibility of such documents and indicating as well the "alarming consequences" which could result from impeaching the validity of enrolled Acts of Congress from legislative journals. After a careful consideration of the cases I am of the firm view that these journals or records of votes and proceedings in the National Assembly are, in the language of Chief Fani-Kayode "relevant to prove whether or not the National Assembly complied with the express provisions of the Constitution." Sections 73 (1) (c) and 112 (b) of our Evidence Act Cap 62 provide as follows:

"73 (1): -The court shall take judicial notice of the following facts:-

(c) The course of proceeding of Parliament and of the Federal Legislative Houses of Nigeria and of the Legislative Houses of the Regions of Nigeria.

"112: The following public documents may be proved as follows:-

(b) The proceedings of the Legislative Council or of a Federal Legislative House-by minutes of that body or by published ordinances or abstracts, or by copies purporting to be printed by order of the Government."

Section 57 of the Indian Evidence Act (1872) provides:-

"A judge is entitled to use his own knowledge of general or public facts, historical, scientific, political or otherwise. He is entitled to take judicial notice of matters which have reached the court...He is also entitled to take judicial notice of proceedings in the Assembly not of the facts asserted in the speeches but of the fact that such speeches were made."

Dealing with this section a Special Bench of High Court of Nagpur (India)-Pollock, Bose and Puranick JJ.-took the view that proceedings or journals of the Legislature were admissible in evidence in a matter before it relating to the Press (Emergency Powers) Act of 1931 in the case of Shagwati Charon Shulka v. Provincial Government S.P. and Berar (1947) A.I.R. (NAGPUR) P.I.; and I draw attention to the observations of Bose and Puranick JJ. at P12:-

".............Now we will be more specific we will refer to the debates in the Central Assembly. Whatever may be the view regarding our right to take into consideration the general political situation at the time, there can, we think be no doubt that we are entitled to take judicial notice of proceedings in the Assembly-not indeed of the truth of the facts asserted in the speeches but of the fact that the speeches were made. The official report of the Central Assembly proceedings shows that a resolution was moved on 24-19-42..........."(Underlining by me for emphasis).

As I said earlier, I am satisfied that these records of votes and proceedings (Exhibits SC1, SC2, SC3, SC4, SC5, SC6, SC7, SC8, SC9, SC10, SC12 and SC13) are admissible in evidence for the purpose of proving whether or not the National Assembly complied with the provisions of the Constitution relative to the passage into law of the Revenue Allocation Bill with which we are concerned in the case in hand.

ACTS AUTHENTICATION ACT OF 1961-SEC.2

I am not impressed with the argument that once a certificate is issued by the Clerk of the National Assembly pursuant to the provisions of section 2 of Act No. 50 of 1961-Acts Authentication Act of 1961-with respect to any particular enrolled Act this court is precluded, in proceedings which specifically seek a pronouncement by this court on the Constitutional validity of such an Act, from going behind the certificate in order to make the necessary inquiry. "The Legislature", it has been said "has no right to violate those positive Constitutional restrictions, and then to say to the court, whose duty it is to determine whether or not an Act is constitutional, 'you cannot go behind an enrolled Bill and consider the legislative history of an Act for the purpose of determining whether or not we violated any constitutional provisions'. By drawing such an iron curtain around its transactions the legislature is usurping the functions of the judiciary and is preventing it from properly performing the duties placed upon it by the Constitution..........' (See Roehl Vs. Public Utility District No 1 of Chellan County, Washington (1953) 43 Washington 2nd Ed. 214). Again, even in the course of support for the contrary view, it has also been said that:-

"............finding an enrolled Bill in the office of the Secretary of States, unless the Bill carries its DEATH WARRANT in its hand, the courts will make no investigation of the antecedent history connected with its passage, except as such an investigation may be necessary in case of ambiguity in the Bill for the purpose of determining the legislative intent............"

[See State ex el. Dunbar v. State Board of Equalization 140 Wash. 433, at 443. (Capitals and italics by me.)

I pause, however, to observe that the case of Roehl (supra) was decided with reference to special provisions in the Constitution of the State of Washington. Either way, there is, even in the United States of America, room for the view that the mere certification of an enrolled Bill does not preclude the judiciary from carrying out inquiry as to the constitutional validity of the enrolled Bill or Act. In countries where Parliament (and not the Constitution) is sovereign the courts there also are known to have taken the view that they are not bound to uphold the validity of a Bill, albeit enrolled, if it carries its death warrant in its hand." And so, if an Act though entered in the Parliament Roll (in England),

"be penned, that the king with the consent of the Lords, or with the assent of the Commons, it is not Act of Parliament, for (the) three ought to assent, acil, the king, the Lords and the Commons or otherwise it is not an Act of Parliament; and by the record of the Act it is expressed which of them gave their assent, and that excludes all other intendments that any other gave consent..............."

See Prince's Case 77 E.R. 505: (1606) 8 Coke Rep. 20b. And so we find that Centlivres C.J. in the Supreme Court of the Union of South Africa in the case of Harris and other v. Donges and others (1952) 68 T.L.R. 1245 took the view that courts of law in the Union would probably have been precluded from inquiring into the validity of the separate Representation of Voters Act 1951 (No. 46 of 1951) if the Act had contained a statement (or had a certification of the President of the Senate and the Speaker of the House of Assembly) to the effect that it had been "enacted by the king, the Senate and the House of Assembly in accordance with the requirements of sections 35 and 152 of the South African Act 1909" (which sections required that alteration of the entrenched sections of the Act-and these include sections 35 and 152 thereof-can only be made by two-thirds of the total members of both Houses sitting jointly or sitting together). As however, the original of that act signed by the Governor-General and filed with the Registrar of the Supreme Court of South Africa, bore the certificate of the President of the Senate and the Clerk of the National assembly which states simply and without more that it was enacted by the King, The Senate and the House of Assembly, that statement, prima facie indicates that each constituent element of the Union Parliament functioned separately in passing the Act (i.e. Act No. 46 of 1951); and this, in the view of Centlivers C.J., clearly shows that the Act was not passed by the two Houses of the Union Parliament sitting together, and so the Courts in South Africa were competent to go behind the certificate and inquire into the validity of the Act (46 of 1951); Act 46 of 1951 was therefore declared invalid. Greenberg, Schreiner, Van Der Heever and Hoexter JJ. sitting with the learned Chief Justice concurred with him.

I am in respectful agreement with the views expressed in Harris Vs Donges (supra) on the question whether a court can, and if so in what circumstances, go behind an enrolled Bill to inquire as to its validity. I will, however, make additional comment on section 2 of our law on Act Authentication (i.e. section 2 of Acts Authentication Act No. 50 of 1961), and in particular subsection (2) thereof. Under the 1979 Constitution the Judiciary is vested with wide supervisory powers over legislative actions (subsection 8 of section 4 refers); and if in addition to the clause "the certificate shall be conclusive for all purposes" appearing in subsection (2) of section 2 aforesaid the legislature had added the phrase" and shall not be questioned in a court of law" the additional phrase would have been completely void and of no effect. Even as it stands, it does not appear to me to be in conflict with subsection 8 of section 4 of the 1979 Constitution and in so far as that portion of subsection (2) aforesaid is intended to preclude the courts from going behind the certificate of the Clerk of the Legislature to make inquiry as to the validity of an enrolled Bill the section must, in my view, be regarded as null and void to that extent (subsection 3 of section 1 of the 1979 Constitution refers); the same observations apply to subsection (2) of section (3) of act No. 50 of 1961.

In the course of the proceedings before us, this court asked on several occasions from learned Counsel appearing on both sides for the precise definition of a bill, and the expression here is, of course, used with reference to legislative proceedings; the correct answer appears to me to be most relevant to a correct appraisal and understanding of the provisions of subsection 2 of section 55 of the 1979 constitution. In answer to this question, learned Counsel for the plaintiff submits that "a Bill is the draft for a proposal of an Act of the National Assembly submitted for consideration by the Senate and the House of Representatives with a view to its being passed into law....The Bill is not the document on which the draft is contained; the draft itself is the Bill." Therefore, in the view of learned Counsel "when the draft is altered "to any extent there is, indeed, a new bill. Such a bill may in the circumstances be referred to as an amended Bill but it is only descriptive of the new bill." He concluded his submissions with the assertion that "any other view of the term will raise the intractable question: to what extent must a Bill be amended before it turns into a new Bill?" I agree with the suggested definition of a bill as set out in the above submission of learned Counsel for the plaintiff.

It, therefore, follows that a bill passed-amended or unamended-by one House and thereafter transmitted to the other (or second) House which in turn amends or further amends and passes it, cannot said to have been passed by that other House (i.e. the second House). Therefore, in the language of subsection (2) of section 55 aforesaid the bill must be regarded as "not passed" by the second House; that House has rejected the bill sent to it. In a Unicameral legislature the distinction now being made between an amended or unamended-remains a Bill passed

by that legislature (i.e. the single House of the legislature); and it is my view that the provisions of subsection (2) of section 55 are, indeed, intended for the bicameral state of our National Assembly.

Therefore, a Bill (whether a "money bill" or "non-money bill") does not and cannot become a law made by the National Assembly unless and until it has been passed by the Senate, the House of Representatives and-except where section 54 (5) applies-assented to by the President. In the case where a bill ("money bill" or "non-money bill") is passed only by the House in which it originates and not passed by the other or second House to which it is transmitted then the bill cannot become law until agreement has been reached between the two Houses on areas of disagreement and the President-except in circumstances where section 54 (5) applies-has assented to the Bill [see section 54 (5)], It seems that the Constitution has left the National Assembly with complete discretion as to how it should reach agreement on areas of disagreement with respect to a "non-money Bill". As regards "money Bills", however, the Constitution has laid down a procedure which must be followed; and this procedure is section 55 and subsections (3) and (4) of section 58 of the 1979 Constitution.

I pause, here, to comment on what exactly is a "money bill" under our Constitution (i.e. 1979 Constitution). In my view, a bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of the Federation (such as the "Federation Account" under section 149 of this Constitution) of any money thereon charged, or any alteration in the amount of such payment, issue or withdrawal is a money bill, and so also is a bill for the imposition of or increase in any tax duty or fee or any reduction, withdrawal or cancellation thereof [see section 55 (1) (a). Italics by me]; and the Revenue Allocation Bill is a money-bill. I think it is necessary now to set out the subsections which have relevance to the passage into law of money-bills; and they read:-

"55 (2): Where a bill to which this section applies is passed by one of the Houses of the National Assembly but is not passed by the other House within a period of 2 months from the commencement of a financial year, the President of the Senate shall within 14 days thereafter arrange for and convene a meeting of the Joint Finance Committee to examine the Bill with a view to resolving the differences between the two Houses."

"55 (3): Where the Joint Committee fails to resolve such differences then the Bill shall be presented to the National Assembly sitting at a joint meeting, and, if the bill is passed at such joint meeting, it shall be presented to the President for assent."

"55 (5): In this section "Joint Finance Committee' refers to the joint committee of the National Assembly on finance established pursuant to section 53 (3) of this Constitution."

"58 (1): The senate of the House of Representatives may appoint a committee of its members for such special or general purpose as in its opinion would be better regulated and managed by means of such a committee, and may by resolution, regulation or otherwise, as it thinks fit, delegate any functions exercisable by it to any such committee."

"58 (3): The Senate and the House of Representatives shall appoint a joint committee on finance consisting of an equal number of persons appointed by each House and may appoint any other joint committee under the provisions of this section."

"58 (4): Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the Committee may be authorised to make recommendations to the House on any such matter." [Italics by me for emphasis]

The way I read the subsection leaves me with the settled conviction that subsection (4) of section 58 was designed to ensure that all bills are passed into law by the bicameral legislature that is, the two Houses of the National Assembly in the manner provided in section 54 (1): that is, by being separately passed by the Senate, the House of Representatives and, (unless subsection (5) of section 54 comes into play) thereafter, assented to by the President. However, in order to ensure that "money-bills" are not defeated by any impasse between the two Houses, an "escape-valve" has been provided in subsection (2) of section 55 which provides for settlement of the impasse by a committee of both Houses which in my view, should report back to these Houses with or without its own recommendations or suggestions for agreement by the Houses on areas of differences, on the bills, between them. The two Houses must thereafter pass the bills (on agreement being reached pursuant to the report sent to them by the committee). In other words, it is my view, that this Constitution (i.e. the 1979 Constitution) has for all purposes established a bicameral legislature for the country but in the case of "money-bills" it makes the further provision of an "escape-valve [see section 55] by means of a joint sitting of both Houses in the manner of a unicameral legislature, allowing for settlement of the matter or disagreement by majority votes (section 52 of the said Constitution refers), in order to prevent the "lapse" of a money-bill; for this must be the result where a deadlock or disagreement fails to be resolved by the two Houses even after advantage has been taken of the provisions of subsection (3) of section 54 of this Constitution, which reads:-

"54 (3): Where a Bill has been passed by the House in which it originated, it shall be sent to the other House; and it shall be presented to the President for assent when it has been passed by that House and agreement has been reached between the two Houses on any amendment made on it." [Italics by me].

The argument was advanced to us that subsection (4) of section 58 did not apply to a "Joint Finance Committee"; that Committee, the argument went on, is a creature of the Constitution" and since it owes its existence to subsection (2) of section 55 the provisions of subsection (4) of section 58 cannot apply to it. I have no difficulty in rejecting the argument and submissions based thereon; and I feel completely unable to appreciate that the submission could be seriously made. The language of section 58 (4) is plain and unambiguous, and it says clearly that nothing in this section (i.e. section 58) [subsection (3) of which-and not subsection (2) of section 55-is the foundation for the existence of the Joint Finance Committee [see section 55 (5)]] shall be construed as authorising such House (i.e. the Senate, the House of Representatives or both acting jointly in appointing a committee) to "delegate to a committee" the power to decide whether a bill shall be passed into law..." it seems clear to me that when the Joint Finance Committee has tried to resolve the areas of differences between the two houses, it must report back to each of the two Houses, whether it succeeds or not in reaching agreement, on the basis for the solution of the differences. If the basis for resolution of the differences contained in its report to the Houses is accepted the House will then pass the "new" or "agreed" Bill (that is, as amended on the basis of the report of the "J.F.C."); if it is rejected by both or either of the Houses then the J.F.C." (i.e. the committee) has failed within the contemplation of subsection (3) of section 55 and the two Houses, now must, in compliance with the provisions of the subsection sit jointly and vote on the bill which must, by application of the provisions of section 52 of the Constitution (i.e. 1979 Constitution-the principle of majority of votes or the presiding members' casting vote in the event of a tie), be passed pursuant to one of the conflicting amendments. The Houses (Not the Joint Finance Committee or any other Committee of the Houses) must pass a Bill into Law.

It seems quite clear from the "journals" or "records of votes and proceedings" of the National Assembly in evidence in these proceedings that both the Senate and the House of Representatives appointed a Joint Finance Committee; whether as is shown from these records or journals the Committee was referred to as the Joint Conference on Revenue Allocation or the Joint Committee on Finance is for the purpose of all these proceedings immaterial. The material facts, however, are: (a) the Revenue Allocation Bill was passed with amendments by one House and later passed with further amendments by the other House; (b) the Bill was then sent to this Committee (the Joint Finance Committee) which according to Exhibit SC. 6 later "passed the Bill"; Exhibit SC. 6 does not state how exactly the Committee "passed the Bill", that is how the difference or amendment were resolved. What, however, is certain is that the agreed-solution of the committee, (i.e. the end-product of its resolution) never went back to the two Houses for consideration; for if the earlier differences or amendments of the two Houses were, indeed, resolved by the committee then there was a new bill and that bill should, in pursuance of the provisions of section 54 (1) of the Constitution, be "passed" by the two Houses. This was never done. To the extent that Exhibit SC. 6 states that the Bill was "passed by the Joint Committee on Finance" that, indeed, is, by virtue of the provisions of subsection (4) of section 58 of the 1979 Constitution "a legal fallacy." Indeed, the certificate of the Clerk of the National Assembly (Exhibit SC.6) attached to the schedule to the Allocation of Revenue (Federation Account etc.) Act 1981 (Exhibit SC. 11) "carries its death warrant in its hand"; for it shows that the Revenue Allocation Bill was passed by the Senate on 15-1-81, by House of Representatives on 22-1-81 and "by the Joint Committee on Finance" (i.e. the Joint Finance Committee) on 29-1-81. I have already said that that Committee has no power to pass a Bill into law. It follows, therefore, that the passage into law of the Revenue Allocation Bill of 1981 was unconstitutional; and accordingly the Allocation of Revenue (Federation Account etc.) Act 1981 is invalid, that is, null and void.

Waiver And Estoppel

The submission has been made that the plaintiff has already received payments (i.e. Revenue) from the "Federation Account" since the passage into law of the Act (Exhibit SC. 11) it now challenges; the State must, therefore, be deemed to have waived its right to challenge the validity of the Act. In the alternative, it was submitted that the State by its action in receiving payment of money allocated to it under the Act (Exhibit SC. 11) is estopped from pursuing its claims in these proceedings. With regard to waiver, it is well known that everyone has a right to waive or agree to waive the advantage of a law made solely for the benefit and/or protection of the individual, in his private capacity and which he may dispense with without interfering with public right or public policy; this is contained in the well known maxim quilibet potest renuntiare juri prose introducto. However, when the observance of the provision of a statute is required on grounds of public policy or for the benefit of the public it cannot be waived by an individual. As regards the submission on estoppel, I gratefully adopt the ipsissima verba of Bradley J. in part of the judgment of the United States Supreme Court in South Ottawa vs. Perking [24 Law Ed. 1st Series, U.S. Supreme Court Reports at P.157] in saying that:

"There can be no estoppel in the way of ascertaining the existence of a Law. That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties."

It also follows from several English court decisions, for example-Re Mahmoud Ispahani (1921) 2 K.B. 716 at 732, that no estoppel will be allowed which precludes the party against whom it is sought from asserting and bringing to the notice of the court, the statutory illegality of such actions and instruments which are sought to be validated by acceptance of the estoppel pleaded. It is, therefore, my view that since the provisions of sections 54, 55 and 58 for the passage of a Bill into law are, indeed, made for the benefit of the Community of Nigeria (not for the people of State of Bendel State alone) and founded on public policy for the proper exercise of the legislative power of the bicameral legislature of this country it is not open to the plaintiff-State to waive the right of challenge of the invalidity of the Revenue Allocation Bill; that is, if in fact it was never properly passed into law. In any event the facts before us are grossly insufficient to prop up the allegation that the plaintiff-assuming it was open for it to do so-has waived its right to challenge the validity of the Act (Exhibit SO.11)

ORIGINATING SUMMONS: Non-Compliance with Order 5, rule 2 of the Supreme Court Rules 1977:

Chiefs Fani-Kayode and Onyiuke have attacked the claims in the originating summons. According to them it failed ex facie to disclose a cause of action, as required by Order 5, rules 2 and 5 of the Supreme Court Rules 1977. The combined effect of these rules is that a plaintiff who asks for a declaratory judgment before this court by originating summons must show on the face of that summons the nature of his interest (if any) in bringing the claim. The submission here is that having failed to show ex facie the summons the Fulcrum of its interest, the plaintiff's claims must be dismissed; however, Chief Fani-Kayode later conceded that since the claims can be amended to reflect the plaintiff's interest they ought merely to be struck out. Order 2, rule (1) of the Supreme Court Rules 1977 enjoins this court, in exercise of its original jurisdiction, where no provisions therefore exist in the Supreme Court rules aforesaid, to apply the rules of practice and procedure "for the time being observed in the appropriate High Court" (i.e. the High Court where it would have been appropriate to institute the like proceedings had the jurisdiction of that court not been ousted by section 212 of the 1979 Constitution). But for the provisions of section 212 aforesaid it would have been proper to institute these claims in the federal High Court; and by virtue of section 9 of Federal High Court Law (No. 13 of 1976) the provisions of Order (2) rules (1) and (2) Rules of the Supreme Court of England (hereinafter referred to simply as "R.S.C.") apply to these proceedings and by virtue of the provisions of Order (2) rule (1) of the R.S.C. mere non-compliance with the R.S.C. do not invalidate the proceedings: Further rule (2) of the same Order requires the party who wishes to take advantage of such non-compliance and set aside the irregular proceedings to do so within a reasonable time. In any event, it appears to me difficult (if not impossible) to say, with reference to the parties in this case, that it really made any substantial difference to any one of them that the summons did not closely follow the form in the schedule to the Supreme Court Rules 1977. None claimed or showed that the summons did not closely follow the form in the schedule to the Supreme Court Rules 1977. None claimed or showed that it was misled. (see also the case of Hariet Johnson vs Bafunke Aderemi (1955)) W.A.C.A. 297 at 298 per Lord Radcliffe delivering the judgment of The Privy Council). The objectors themselves have not within a reasonable time made any separate application in this case to strike out the summons or claims therein on any particular grounds. Even if they had done so, it seems to me now too late in the day for this court to strike them out since I am satisfied that it was clear to parties, in the course of the proceedings, on what grounds of interest the plaintiff rests its claims and no injustice, substantial or otherwise, can be done to either of the defendants if an amendment of the summons (which has been asked for by the plaintiff) were now to be granted. In any event, I incline to the view that in suits calling for decisions on issues relating to the Constitution this court ought not unduly to allow technicalities to deter it from making vital pronouncements.

As regards claims e (i) and e (ii) of the originating summons, it seems to me that having taken the view that the entire Act (i.e. Allocation of Revenue (Federation Account, etc.) Act 1981) Exhibit Sc II. is unconstitutional and invalid, it would ordinarily be unnecessary to make any comments on these claims. However, since so much argument has been advanced to us on these claims I would say no more than that the powers of the National Assembly under subsections (2) to (4), (6), and (7) of section 149 of the 1979 Constitution are, as my Lord the Chief Justice pointed out in the judgment just read by him, indeed, very wide; but I express no opinion on the question whether the States have a legal (i.e. justiciable) or political right over the "terms and manner" which the National Assembly may prescribe in respect of the distribution of the "Federation Account" under section 149 aforesaid. I would only enter the "caveat" that in the exercise of its power under the subsections the National Assembly must be extremely careful so that such exercise do not conflict or interfere with the powers which under the Constitution belong exclusively to the States. Having entered this "Caveat." I make no pronouncement on claims e (i) and e (ii) of the originating summons; and I do not consider it necessary to answer the questions in paragraph 1 (d) (i) and (ii) of the said summons.

Finally, I would like to make the general observation that the decisions of courts of the United States, Australia, India and, indeed, of the Common Law countries which operate written constitutions are not binding on us although they are of course, of considerable persuasive force especially where they relate to sections of the Constitutions of those countries which are in pari materia with sections of our own Constitution. We must always bear in mind, when interpreting our own Constitution-the 1979 Constitution-that it is in many ways, unique and that it is set against the background of our peculiar circumstances, with the aim of satisfying the various aspirations and peculiarities of this Federation.

I would therefore, grant the declarations sought in items 2 (a), 2 (b), 2 (d) of the plaintiff's originating summons. I agree with the answer given in the judgment just read by my learned brother, my Lord, the Chief Justice to the questions in paragraphs (1) (a) of the originating summons and the Orders proposed in his judgment.

Obaseki, J.S.C.: The originating summons posed two questions and contains claims for five declaratory judgments and an order of injunction which have been fully set out in the judgment of my learned brother Fatayi-Williams, Chief Justice of Nigeria, just delivered and having had the advantage and pleasure of reading in advance the draft of the judgment, I hereby express my full concurrence with it and adding by way of emphasis, the following comments and opinions on some aspects of the issues raised before us. The question whether there is validly in existence the Allocation of Revenue (Federation Account, etc.) Act 1981, i.e. Act No. 1 of 1981 must of necessity admit of added opinion and continue to attract further debate.

Hon. Chief Richard Akinjide agreed that in matters of this nature, the court is entitled to look at the report of the proceedings of the National assembly but contended that it is not entitled to admit and use them as evidence to impeach the validity of the act. He later abandoned his objection to the admissibility of the proceedings. Chief Fani Kayode maintained his objection to the admissibility of the National Assembly proceedings for most of the time on the ground that they were National Assembly internal matters but withdrew his objection after the admission of Exhibit 'SC7' when he made exhibits SC8, SC9' and SC10' available to the court. Chief G.C.M. Onyiuke however maintained his objection right to the end of the proceedings, his contention being that they were proceedings of internal matters of the National Assembly and cannot therefore on the doctrine of separation of powers be used to impeach the validity of the Act. What is this doctrine of separation of powers? The object of the Constitution was to establish three great departments of government-the legislative, the executive and the judicial departments. The first was to pass the laws, the second to approve and execute them and the third to expound and enforce them. The object of the creation by the Constitution of the three and separate departments of government is not merely a matter of convenience or of governmental mechanism but is basic and vital, to preclude a commingling of different powers in the same hands. Each of the three departments of government-legislative, executive and judicial-should be kept completely independent of the others so that the acts of each shall not be controlled by or subjected directly or indirectly to the coercive influence of either of the others. The doctrine of separation of powers which is fundamental to the constitutional system of the Federal Republic of Nigeria arises not from any provision of the Constitution but because behind the words of the constitutional provisions are postulates which limit and control the three departments of government. In support of their objections the learned Attorney-General of the Federation and some of the other defence counsel cited a number of American cases including:

State v. Martin 38 WN 2nd 534

Field v. Clarke 143 US 640

Evans v. Browne 30 IND 514 at 525-527

State v. Young 32 New Jersey 29 at 31-36

Harwood v. Kentworth 1986 162 US 547

The State, etc. v. Governor Schricser 228 IND 41 (1949)

Twin City National Bank of New Brighton v. Nebeker 167 US 196

Chief William's submission in reply was that the objection is untenable and referred us to the provisions of sections 72, 73, 108 and 112 of the Evidence Act Cap 62 Laws of the Federation. He also cited in support some Australian and American cases including:-

Australian Communist Party v. The Commonwealth 03 CLRI at page 276

Commonwealth Freighters Property Ltd. v. Sneddon 102 CLR at 280

Breen v. Snedden 106 FLR 406 at 411-412.

Prentis v. Atlantic Coast Line Co. 53 US Lawyers Ed. 1st Series 150 at 159

Burns Baking Co. v. Bryan 68 US (Lawyers Ed. 1st Series) 813 at 835; and

South Ottawa v. Perkins 24 US Lawyers Ed. 154 at 156-157

I have read the above cases and found them extremely useful. Just as Australian court apply Australian Law and American courts apply American Law, be they State or Federal, Nigerian courts are enjoined by the Nigerian Constitution to follow Nigerian Law which is applicable to the cases before them no matter how attractively presented before them cases and authorities from other countries of similar judicial system as ours may be. Even then, the dicta from some of the above authorities lend support to the submission of learned Counsel for the plaintiff that the court should not shut its eyes to the truth but make use of all legitimate sources open to it for the ascertainment of the true facts.

In the United States Supreme Court in the case of Burns Baking Co. v Bryan 264 US 504, 44 S Ct. 412 at 421 68 Law Ed. 1st Series 813 at 835 October term, (Mr Justice Brandeis with whom Mr Justice Holmes concurs) dissenting, said:

"Much evidence referred to by me is not on record. Nor could it have been included. It is the history of the experience gained under similar legislation and the results of scientific experiments made since the entry of the judgment below. Of such events in our history whether occurring before or after the enactment of the statute or of the entry of the judgment the court should acquire knowledge and must, in my opinion, take judicial notice, whenever required to perform the delicate judicial task here involved....."

Similarly in the case of South Ottawa v. Perkins 24 LAW Ed. (94 US) 154 at 156, Mr Justice Bradley (delivering the opinion of the Supreme Court) commented:

"In the construction of the constitutional provisions above recited, the Supreme Court of Illiniois, by a long course of decisions, has held that it is necessary to the validity of a statute that it should appear by the legislative journals that it was duly passed in the manner required by the Constitution."

In the case of Prentis v. Atlantic Coast Line 53 LAW Ed. (US 211) 150, Mr Justice Holmes delivering the opinion of US Supreme Court observed at page 159:

"And it does not matter what matters may have been made as a preliminary to a legislative act. Most legislation is preceded by hearing and investigations. But the effect of the inquiry and the decision upon it is determined by the nature of the act to which the inquiry and the decision lead up. A judge sitting with a jury is not competent to decide issues of fact; but matters of fact that are merely premises to a rule of law he may decide. He may find out for himself in whatever way seems best whether a supposed statute ever really was passed" (italics are mine).

Having regard to the provisions of the Constitution of the Federal Republic of Nigeria, I am unable to accept the submissions that the admission and use of the proceedings in the National Assembly published for the information of the general public in the proceedings will violate the doctrine of separation of powers. This Court is not called on to pronounce and is not pronouncing on the validity of the internal proceedings of the National Assembly. It is called on to investigate and ascertain and pronounce whether there has been an exercise or a proper exercise of the legislative powers vested in the National Assembly by the National Assembly. (See Martin v. Hunter 1 Wheat 304, 4L. Ed. 97; Maynard v. Hill 125 US 190, 31 L. Ed. 654).

There can, in my opinion, be no serious objection to the admissibility of the above documents and even if the laws of other countries prohibit the admission and use of such documents, I can find no such restriction in their use under our law. The Evidence Act Cap. 62, Laws of the Federation of Nigeria does not bar their admission and use. On the contrary, the Act positively permits the admission of such proceedings if relevant. To this end, I will refer to the provisions of sections 72, 73 (1) (c), 108 and 112 (a & b) of the Evidence Act, the provisions of which are as follows:-

Section 72:"No fact of which the court must take judicial notice need be proved;

Section 73 (1):"the Court shall take judicial notice of the following:

(c) the course of proceedings of Federal legislative Houses and of the legislative Houses of the States: Section 108:The following documents are public documents (a) documents forming the acts or records of the acts

(i) of the sovereign authority

(ii) of official bodies and tribunals

(iii) of public officers, legislative judicial and executive of Nigeria

(b) public records kept in Nigeria of private documents." Section 112:"The following public documents may be proved as follows:

(a) Acts of State, orders notification........and other communications of the Government of Nigeria

(i) which appear in the official gazette of Nigeria or a State, by the production of such gazette, and shall be prima facie proof of any fact of public nature which they intend to notify.

(iv) by any document purported to be printed by order of Government."

The facts and circumstances giving rise to these proceedings are notorious well known and public property but have been set out in greater detail in the judgment of my learned brother Fatayi-Williams, C.J.N. Shortly put, they are as follows:

"Being desirous of getting the National Assembly to enact a law pursuant to section 149 of the Constitution of the Federal Republic 1979 the President of the Federal Republic on 28th October, 1980 forwarded to the National Assembly a Bill entitled Allocation of Revenue (Federation Account etc.) Bill 1980 setting out new formula for the distribution of the amount standing to the credit of their Federation Account between the Federal and State Governments and the local Government Councils in each State for the consideration and enactment by the National Assembly. The Bill was given its first reading in the House of Representatives on the 3rd of November, 1980 and in the Senate on the 4th of November, 1980. The Bill was passed with a set of amendments by the Senate on 15th January, 1981. The Bill presented to the House of Representatives and given first reading on 3rd November, 1980 was passed with another set of amendments by the House of Representatives on the 22nd January, 1981. It appears that the copy off the Bill considered and passed by the House of Representatives was not the same copy considered and passed by the Senate. This is definitely incontrovertibly so because the Bill was presented by Olusola Afolabi and given a first reading in the House of Representatives the 3rd day of November, as it was being presented by Senator Olusola Saraki in the Senate. The Senate did not give it its first reading till the 4th day of November, 1980. In execution of the constitutional duty imposed on him by section 55 (2) of the Constitution, the President of the Senate convened a meeting of the Joint Committee of the National Assembly on Finance to examine the Bill with a view to resolving the differences. The committee met on the 28th and 29th of January, 1981 and varied and adopted the Senate amendments. The Bill as 'passed' by the Joint Committee was then presented by the Clerk to the National Assembly, i.e. the 23rd defendant, to the President of the Federal Republic for his assent and he assented to the Bill on the 3rd day of February, 1981. Section 272 of the Constitution expressly allowed the use of the Revenue Formula for sharing the amount in the Federation Account in force in the financial year April, 1978 to 31st March, 1979 pending any Act of the National Assembly providing a new formula for revenue allocation between the Federation and the States, among the States, between the States and the Local Governments and among the Local Governments. This formula provided the basis for allocation of the amount in the Federation Account before the assent to the Bill.

Counsel for 1st, 6th, 16th, 20th, 21st, 22nd and 23rd defendants also raised in their addresses, five legal objections to this action. They may be summarized as follows:

(1) That the plaintiff's claim is not properly before this court and that the originating summons ought not to have been issued as the claims as framed failed to comply with the requirement of Order 5, rule 2 of the Supreme Court Rules 1977 in form and content.

(2) That the plaintiff's claim is not justiceable.

(3) That this Court has no jurisdiction to adjudicate on the matter.

(4) That the plaintiff is estopped from raising the issue of the constitutionality of the Act as Bendel State has taken a benefit under the Act.

(5) That the plaintiff has by his action waived his right to challenge the constitutional validity of the Act.

Chief Akinjide, learned Attorney-General of the Federation, raised objections 2, 3, 4 and 5. chief Fani Kayode raised all five objections i.e. objections 1, 2, 3, 4, and 5 while Chief Onyiuke maintained the last 3 objections.

Chief Achi Kanu, counsel for the 6th defendant, and Mr T. Fubara, counsel for the 18th defendant, also raised or maintained objections 3, 4 and 5.

Before dealing with the above objections, I would like to comment on the question whether the Act, Act No. 1 of 1981 is an Act of the National Assembly. The submissions of counsel for the plaintiff and counsel for the defendants on the issue have been fully set out in the judgment of my learned brother, Fatayi-Williams, C.J.N., and will not be repeated here. I agree with the Honourable Chief Justice of Nigeria that the Act is not an Act of the National Assembly. It was not passed as required by section 52, 54 and 55 of the Constitution.

I am of the same opinion as the Hon. Chief Justice of Nigeria that section 23 of the Legislative Houses (Powers and Privileges) Act Cap. 102 Vol. 4 Laws of the Federation of Nigeria and the Acts Authentication Act 1961 No. 50 sections 2 and 3 which were relied on by counsel and to which our attention has been drawn cannot be invoked to bar the inquiry envisaged in section 4 (8) of the Constitution. These sections have been fully set out in the judgment of my learned brother, Fatayi Williams, C.J.N.

In so far as they purport to bar the inquiry, their provisions are unconstitutional, null and void. Even if they can be validly invoked, the schedule prepared and certified by the Clerk to the National Assembly contains the relevant facts to support this action. The facts are death wounds. The appearance of the Committee on finance on the schedule tells a story-the story that there were differences between the Senate and the House of Representatives. But the use of the word "passed" in relation to the journey of the Bill from the Senate to the House of

Representatives and the Joint Committee on Finance tells a false story.

In its true connotation, the word "passed" conveys the impression that the contents of the Bill passed by the Senate, the House of Representatives and the Joint Committee on Finance are all the same. But the facts disclosed show that the contents of the Bill passed by the Senate are at variance with the contents of the Bill passed by the House of Representatives and slightly amended by the Joint Conference Committee on Allocation of Revenue (Federation Account etc.) Bill 1980. The certificate signed by the Clerk of the National Assembly appears to have been signed without due awareness of the true import of the contents.

The authority of the Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as "Constitution") is in no doubt as section 1 of the Constitution expressly provides as follows:

(1) "This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(2) The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

(3) if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of inconsistency be void." (Italics are mine).

The pre-eminent position of the Constitution is emphasised by the facts stated in the preamble that

"We the people of the Federal Republic of Nigeria having firmly and solemnly resolved Do hereby make, enact and give to ourselves the following Constitution;

and reinforced by the declaration in section 14(2)(a) of the Constitution that

"It is hereby declared that sovereignty belongs to the people of Nigeria from whom government through this Constitution derives its power and authority." (Italics are mine)

There is no position which depends on clearer principle than that every act of a delegated authority, contrary to the tenor or the commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution, can be valid.

In the United States, there is no doubt that the supremacy of the people as a law-giver is recognised so far as the Constitution is concerned. From the very nature of the Constitution, apart from the express declaration, it must follow that it has superiority over the institutions to govern a government.

In Marbury, v. Madison in 1803 (Cranch 137), Chief Justice Marshall said at 177.

"Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature, repugnant to the Constitution is void."

Suffice it therefore to say that under the Constitution of the Federal Republic of Nigeria, the National Assembly cannot validly enact any law unless it strictly complies with the procedure so prescribed. Section 4 (1) and (6) of the Constitution vests the legislative powers of the Federation and of the States exclusively in the National Assembly and States House of Assembly. The two subsections read:

"(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly."

These provisions are clear and unambiguous. The body in which the legislative powers of the Federal Republic of Nigeria is invested is the National Assembly. We are left in no doubt as to the meaning of the National Assembly. It is defined in the subsection as consisting of a Senate and a House of Representatives. This is also the definition given by section 43 of the Constitution which creates the National Assembly and which reads:

"There shall be a National Assembly for the Federation which shall consist of a Senate and a House of Representatives."

It is therefore apparent that a Joint Committee of the Senate and House of Representatives do not constitute the National Assembly.

In the exercise of the legislative powers, the legislatures are not left at large and allowed to breach the Constitutional provisions without question. Section 4 (8) of the Constitution makes them answerable in courts of law or judicial tribunals established by law for any allegation of breaches of the Constitution in the exercise of their legislative powers by its provision which reads:

"save as otherwise provided by this Constitution, the exercise of legislative powers of the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law." (Italics are mine).

To this end, judicial powers were vested in the courts by subsections 1, 2 and 5 of section 6 of the Constitution. These subsections read as follows:

Section 6 "(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(5) This section relates to

(a) The Supreme Court of Nigeria

(b) The Federal Court of Appeal

(d) The High Court of a State

(e) a Customary Court of Appeal

(f)

(g)

The Constitution was not silent about the mode of exercising the legislative powers vested in the National Assembly and the House of Assembly of the States. There was hesitation among counsel to offer a definition for "legislative process" and "exercise of legislative power." When do these begin and when do they end? The legislative process commences with the gathering of materials for legislation and ends with the enrolment Act. But the exercise of legislative power envisaged under the Constitution commences with the presentation of the Bill and 1st reading in either House of the National Assembly, and ends with the assent by the President or passing a second time with two-third majority in the National Assembly. [See Mutual Film Corporation v. Industrial Commission 236 US 230, 35 S. Ct. 387].

I hesitate to say that the President's assent is not a share of the exercise of the legislative power. It is true that the President is the Chief Executive and head of the Federal Republic of Nigeria, but his function as Chief Executive is not limited to the maintenance and execution of the Constitution and the laws made by the National Assembly, but includes giving assent to Bills passed by the National Assembly to become law. Counsel for the plaintiff has submitted that the President was performing an executive function but the requirement for assent has been dealt with in the Constitution under the mode for exercising legislative power. Further, since a withholding of the President's assent deprives the Bill of its validity as a law, it can be equated to the second exercise by the National Assembly of passing the Bill by two-third majority to put it on the statute book as an Act of the National Assembly. I do not think that there is any doubt that the passage of the Bill by two-third majority in the National Assembly is an exercise of legislative power. See section 5 (1) and section 54 [(1) and (5)] and section 55 [(3) and (4)] of the Constitution.

The mode of exercising legislative powers vested in the National Assembly is prescribed by sections 52(1) and (2), 54 and 55. Section 54 lays down a general procedure applicable only to money Bills. The provisions of the section are detailed clear and unambiguous. Section 52 (1) and (2) read:

"(1) Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority of the members present and voting: and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case.

(2) Except as otherwise provided by this Constitution, the required majority for the purpose determining any question shall be a simple majority."

Section 54 reads:

"(1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.

(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House and it shall be presented to the President for assent when it has been passed by that other house and agreement has been reached between the two Houses on any amendment made on it.

(4) Where a bill is presented to the President for assent, he shall within 30 days thereof signify that he assents or that he withholds assent.

(5) Where the President withholds his assent and the Bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required."

(Italics are mine)

Section 55 was described in the marginal notes as prescribing mode of exercising Federal legislative power in respect of money bills. In so far as this description excludes the application of the provisions of section 54 to money bills, the marginal notes are misleading or, rather, not comprehensive enough as will be seen from the provisions of the section. The section reads:

Section 55

(1) The provisions of this section shall apply to

(a) an appropriation bill or a supplementary appropriate bill including any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of the Federation of any money charged thereon or any alteration on the amount of such a payment, issue or withdrawal, and

(b) a bill for the imposition of or increase in any tax, duty or fee or any reduction, withdrawal or cancellation thereof.

(2) Where a bill to which this section applies is passed by one of the Houses of the National Assembly but is not passed by the other House with a period of 2 months from the commencement of a financial year, the President of the Senate shall within 14 days thereafter arrange for and convene a meeting of the joint finance committee to examine the bill with a view to resolving the differences between the two Houses.

(3) Where the joint finance committee fails to resolve such differences then the bill shall be presented to the National Assembly sitting at a joint meeting and if the bill is passed at such joint meeting it shall be presented to the President for assent.

(4) Where the President within 30 days after the presentation of the bill to him fails to signify his assent or where he withholds assent, then the bill shall again be presented to the National Assembly sitting at a joint meeting, and if passed by two-thirds majority of members of both Houses at such joint meeting the bill shall become law and the assent of the President shall not be required.

(5) In this section, "joint finance committee" refers to the joint committee of the National Assembly on finance established pursuant to section 58 (3) of this Constitution." It is pertinent at this juncture to observe that the arguments of all counsel for all parties specifically raised the question of the proper and correct interpretation and application of the above two sections, sections 54 and 55.

Claim 1(a) of the originating summons raises it when it asked this court to decide whether the provisions of the Constitution which apply are those of section 54 or those of section 55.

It is emphatically the province and duty of the courts in this country to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not the ordinary act must govern the case to which they apply (Marbury v. Madson (1 Cranch 137)). In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind.

(1) Effect should be given to every word.

(2) A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.

(3) A constitutional power cannot be used by way of condition to attain unconstitutional result.

(4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.

(5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entity; a particular provision cannot be dismembered from the rest of the Constitution.

(6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import of its meaning.

(7) A constitutional provision should not be construed so as to defeat its evident purpose.

(8) Under a Constitution conferring specific powers, a particular poser must be granted or it cannot be exercised.

(9) Delegation by the National Assembly of its essential legislative function is precluded by the Constitution (section 58 (4) and section 4 (1)).

(10) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.

(11) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.

(12) Words of the Constitution are therefore not to be read with stultifying narrowness.

See:

Martin v. Hunter 1 Wheat 304, 4 L. Ed. 97.

Cooper v. Telfair 6 Dal 14, 1 L. Ed. 721.

United States v. Lefkowitz 285 US. 452, 52S. Ct. 420, 76 L. Ed. 877.

United States v. Classic 313 US. 299, 61 S. Ct. 1031, 85 L. Ed. 1368.

Lake County v. Rollins 130 US. 662 9 S. Ct. 651.

Fairbank v. United States 181 US. 283, 21 S. Ct. 648, 45 L. Ed. 862.

United States v. Sharpnack 355 US. 286, 78 S. Ct. 291

Western Bank Ltd. v. Schindler (1977) 1 Ch. 1 at 13.

Luke v. Inland Revenue Commissioners (1963) AC. 577.

In re Maryon-Wilsons' Will Trusts (1968) Ch. 268, 262.

Courts, it must be emphasized, cannot amend the Constitution. They cannot change the words. They must accept the words, and so far as they introduce change, it can come only through their interpretation of the meaning of the words which change with the passage of time and age. Bearing these principles and facts in mind, it is my opinion that an examination of the provisions of section 55(2) of the Constitution shows that the procedure prescribed in section 55 for exercising legislative power can only be followed:-

"where a money bill has been passed by one of the Houses of the National Assembly but is not passed by the other House within a period of 2 months from the commencement of the financial year."

Failure of occurrence of this event does not call for the adoption of the procedure set out in section 55 but enjoins adoption of the procedure set out in section 54. To this question raised in paragraph 1(a) of the originating summons, the correct answer in my opinion must be that the provisions of both sections 54 and 55 govern the passage of the Bill.

If the two Houses pass the Bill reaching agreement on all the amendments to the Bill, resort to the procedure, set out in section 55 will not arise. But if one House passes the Bill and the other takes no action on it or rejects it or passes it with different amendments, resort to the procedure set out in section 55 must be made. This is the clear meaning of and intention expressed in section 55 (2).

If after examination of the Bill the joint committee on finance succeeds in resolving the differences, that resolution clears the way for the passage of the Bill by both Houses sitting bicarmerally in compliance with the provisions of section 54. Success in this regard implies acceptance by both Houses of the Joint Committee's decision and recommendation.

If much labour has been lost on the phrase "examine the bill with a view to resolving the differences", it was necessitated by the drafting. In my view, the phrase can mean no more than settling the differences between the two Houses and bringing them into agreement on the amendments in the context in which the phrase is used. This is borne out by the duty imposed on the Clerk to the National Assembly by section 2 (1) of Acts Authentication Act 1961. The joint committee on Finance did not acquire any legislative power by delegation under section 58 (3) as section 58 (4) expressly and specifically prohibited each House of the National Assembly from delegating its power to decide whether a Bill should be passed into law to a committee appointed by it. Be it noted that each of the two Houses i.e. the Senate and the House of Representatives appointed its own members to the joint committee on finance in accordance with the power vested in them by section 58 (3). Section 55 (2) limited its functions under that section to resolution of the differences between the two Houses where one Houses where one House rejects a Bill passed by the other House. Where the resolution of the differences is not possible section 55 (3) makes provision for the presentation of the Bill to the National Assembly sitting at a joint meeting.

This is to ensure the passage of the bill by the National Assembly and secure in one joint sitting the proper exercise of the legislative power vested in the National Assembly. It is also to prevent a bill for supplies from lapsing as a result of unresolved differences between or confrontation by the two Houses of the National Assembly since no bill can become law unless it has been passed by the National Assembly with or without the assent of the President. The section is also in conformity with the mandatory provisions of section 54 (1) which properly interpreted, implies the sitting of both the Senate and the House of Representatives. The examination of the facts of this case in the light of the above provisions of the Constitution glaringly shows that the National Assembly abandoned the provisions of subsections 2 and 3 of section 54. These two subsections along with subsection 2 of section 55 envisages a bill travelling through all the process of passage in one House before commencing and entering, continuing and completing the processes of passage in the other House.

Section 54 (2) envisages that a bill should originate in either the Senate or the House of Representatives while section 54 (3) envisages that on the bill being passed by the House in which it originated it shall be sent to the other House and when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it, it shall be presented to the President for assent. It is when the other House takes no action on the bill or rejects the bill that the provisions of section 55 (2, 3 and 4) come into play and are applied as and when circumstances demand their application.

The facts show that the 1980 Allocation of Revenue Bill originated in the two Houses on the same day. One copy originated in the Senate and the other copy originated in the House of Representatives. Each House passed the Bill which originated in it and never sent it to the other. It appears that the bill passed by the Senate was never sent to the House of Representatives and the bill considered and passed by the House of Representatives was not the bill passed and sent by the Senate. This was clearly a breach of the clear provisions of the Constitution.

If it was that Bill as passed by the Senate that was sent to the House of Representatives, when the House of Representatives passed the Bill with different amendments, the Bill as passed by the Senate was, in my opinion, not accepted but rejected by the House of Representatives. When the joint committee on finance called Joint Conference Committee on Allocation of Revenue (Federation Account etc.) Bill 1980 resolved the differences and decided on acceptance of Senate amendments as amended by the Committee, no report with recommendations was made to both Houses. Thus, the Bill, as passed by the Senate amended and accepted by the Joint Committee was not tabled before and was never passed by the Senate and the House of Representatives to become law.

Section 54(2) is very clear on the point that the bill shall not become law unless it has been passed.

A fortiori, a money Bill that has not gone through the procedure prescribed by sections 54 and 55 of the Constitution cannot become an Act of the National Assembly and if such bill be assented to by the President, the Act is unconstitutional as the President has no constitutional duty to assent to a bill not passed by the National Assembly. See Attorney-General of St. Christopher Nevis and Arguilla v. Reynolds (1980) AC 637. Bribery Commissioners v. Ranasinghe (1965) AC 172 at 193. Attorney-General, New South Wales v. Trethowan (1932) AC 526. Princes Case 77 ER 496 at 505. Gallant v. The King (1949) 2 D.LR 425 at 428.

It now comes to the question of the nature and powers of the Joint Conference Committee convened by the President of the Senate.

Although sections 58(4) and 55(2) named the Joint Committee on Finance as the committee the Senate and House of Representatives shall appoint, the Constitution did not appoint or set up the Committee. The Committee in this case named Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980 was as disclosed in the documentary exhibits in evidence appointed by the Senate and House of Representatives. Section 58 of the Constitution may now be reproduced in full for a better appreciation of its authority and full effect. It reads:

"(1) The Senate or the House of Representatives may appoint a committee of its members for such special or general purpose as in its opinion would be better regulated and managed by means of such a committee and may by resolution, regulation or otherwise, as it thinks fit, delegate any function exercisable by it to any such committee.

(2) The number of members of a Committee appointed under this section, their terms of office and quorum shall be fixed by the House appointing it.

(4) Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the committee may be authorised to make recommendations to the House on any such matter." (Italics are mine).

The learned Attorney-General of the Federation in his address contended before us that the joint committee on finance is not subject to the restriction imposed by sub-section 4 of section 58 on the powers of delegation of each House of the National Assembly. This submission was founded on the fact that it was specifically named by section 58(3) of the Constitution and assigned a specific function by section 55(2) of the Constitution. I find myself unable to accept this submission. With the greatest respect to the learned Attorney-General of the Federation, it is my considered view that sections 58(3) and 55(2) cannot and do not admit of such interpretation whether it be the liberal approach or the restrictive approach of interpretation that is adopted.

It is necessary to remind ourselves of the caution advised by Sir Udo Udoma, J.S.C. in the celebrated case of Nafiu Rabiu v. Kano State (1980) 8-11 SC. 130 at 151, that:

"It is not a correct approach to the proper interpretation of our Constitution to begin by looking to the meaning or interpretation of a statutory provision or Constitution of other countries with different wordings."

and he quite properly added this commendation that:

"foreign constitutions of statute with identical provisions accepted as in pari materia with the relevant provisions of our constitution will naturally carry some weight in their persuasive influence bearing in mind always that even in such cases, circumstances may vary."

I concurred in these observations and I still do strongly hold fast to them. The true spirit of constitutional interpretation both as to grants of powers and in respect of prohibitions and limitations is to give full liberal construction to the language aiming over to show fidelity to the spirit and purpose [Fairbank v. United States 181 US. 283 45 L. Ed. 862]

It is well known that where legislative power is undefined it includes judicial and executive attributes [see Cooper v. Telfair 4 Dall 14 I L. Ed.721].

It is to define the powers of the legislature that written Constitutions are written.

Certainly, the 1979 Constitution went all out to define the powers vested in the 3 departments of government in Nigeria although that of legislature was given in more definitive detail.

On a careful examination therefore of section 58 (3) one cannot but come to the conclusion that the words of that section clearly made the appointment of the joint committee on finance subject to the provisions of section 58. The section expressly says so.

On analysis the subsection will read:

"The Senate and the House of Representatives shall appoint a joint finance committee ................. under the provisions of this section. The joint finance committee is to consist of an equal number of persons appointed by each House."

It is my view that the directive that the appointment shall be made under the provision of this section can bear no other interpretation than that, each of the Houses should exercise the powers of delegation envisaged in sub-section 1 of section 58, i.e. of delegation of certain functions, the powers to fix the number of members their terms of office and quorum under sub-section 2. In the exercise of its power of delegation, each House is subject to the prohibition against delegation, of power to decide whether a bill shall be passed into law imposed by sub-section 4 of section 58. It should not be over sighted and indeed it should be borne in mind that each House appoints its members to serve on the joint committee and they can only exercise the authority given to it by the House.

The joint committee on finance, in my opinion, being a committee appointed under section 58 is purely and simply exercising a delegated authority. When it is convened to examine the bill with a view to resolving the differences, it is performing a delegated function and in any case, it is the well known constitutional practice that during the legislative process committees of the House examine the Bills committed to them.

The reference of the Bill to joint committee on finance to resolve the differences between the two Houses cannot be properly interpreted as an authority to pass the bill on behalf of the House that rejected the Bill. What is the purpose of the House delegating a committee appointed by it to pass the Bill which it has rejected when it is its constitutional function to do so?

It is also implied in the constitutional provision that 'the power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives' (see section 54 (1) of the Constitution) that such House shall not delegate to a committee the power to decide whether a bill shall be passed into law, and that every bill committed to a committee must be reported to the House when the committee stage is finished and opportunity given for it to be considered on report by the House before passing. During the report, amendments may be tabled for debate. If any amendment is made to the bill (as settled by joint committee on finance) by either House, then the difference has not been resolved and the bill must as required by section 55(3) of the Constitution be presented to the National Assembly sitting at a joint meeting for passing. Since the joint committee on finance christened the 'Joint Conference Committee on Revenue Allocation (Federation Account, etc.) Bill 1980 did not report the bill to the National Assembly, i.e. the Senate and the House of Representatives although there is the President's assent given to it, the bill as settled or amended by the Joint Committee on Finance has not been passed by the National Assembly.

Dealing with the powers of Joint Committee, the learned authors of Erskine May on Parliamentary Practice 19th Edition at page 680 has this to say:

"Generally speaking, each house gives identical powers to the members appointed by it to serve on a joint committee. A joint committee has only such authority, and can exercise only such powers, as have been conferred upon it concurrently, nor can the powers of a joint committee be enlarged by an order of one House alone For a joint committee to act on an authority which had been delegated by one House only would be ultra vires;

and dealing with report of joint committee, he says at page 682:

"The report of a joint committee is presented to both Houses. It is ordered to be presented by the chairman to the House to which he belongs, and by a member, selected for the purpose by the committee, to the other House. When the consideration of a bill by a joint committee has been concluded, the bill is reported to the House in which it originated. In addition to reporting the bill to the House in which it originated a joint committee frequently makes a report to both Houses upon the bill. Where no such report is made, the committee, after ordering the bill to be reported to the House in which it originated, directs one of the members appointed to serve on the committee by the other House to report accordingly to that other House."

True enough, Erakine May was writing about the procedure in British Parliament and I have not lost sight of the fact that Britain has unwritten constitution and that Parliament in Britain is sovereign. Our Constitution is written and on the point under consideration, the comments of the learned authors given expression to both the letter and spirit of our Constitution.

Learned Counsel for the plaintiff advanced a lot of arguments to convince us that the joint conference committee on Allocation of Revenue (Federation Account, etc.) Bill 1980 appointed by both the Senate and the House of Representatives was different from the Joint Committee on Finance authorised by section 55(2) of the Constitution to be convened by the President of the Senate to examine the bill with a view to resolving the difference. It is agreed by all counsel except Mr G.O.K.Ajayi that the bill is a money bill within the definition set out in section 55(1) of the Constitution. I am of this opinion too and that although the bill prescribed the share of each level of governments in the Federation in percentages, the percentages are percentages of the amount of money in the Federation Account to be paid out to each level of government and therefore qualifies the bill to enter the category of Money Bills. When the bill as passed by the Senate was rejected by the House of Representatives, the need to follow the procedure prescribed by section 55 arose. Each House then exercised its powers under section 58(3) to appoint 12 members to the Joint Committee [see Exhibit'SC2' and Exhibit'SC3'] but called the Committee Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980.

Learned Counsel for the plaintiff's submission that it was not the Joint Committee on Finance named by section 55(2) of the Constitution that was convened cannot, in the circumstances, be sustained, the misnomer notwithstanding. Learned Counsel for the 20th and 21st defendants quite properly, in my view, submitted that this was a question of nomenclature and that having regard to the evidence and the purpose for which the appointment was made and the Joint committee convened, it was the Joint Finance Committee that was christened Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980.

It is my opinion that the failure of the Joint Committee on Finance christened Joint Conference committee on Allocation of Revenue (Federation Account, etc.) Bill 1980 to report the bill to the Senate and the House of Representatives is a serious breach of the constitutional procedure for exercising legislative powers and has prevented the Bill from being passed by the National Assembly before it was presented to the President for Assent. Since the Bill was not passed by the National Assembly, the President's assent cannot give it the force of law as he is only authorised by the Constitution to assent to Bills passed by both Houses of the National Assembly. The Act, Allocation of Revenue (Federation Account, etc.) Act 1981 No. 1 of 1981 is therefore unconstitutional and void in its entirety. The Federal Government represented by the 1st defendant is not entitled to execute the Act and the injunction prayed for will be granted.

Having dealt with procedural constitutional ultra vires, I shall now proceed to consider in detail, the objections raised by the 1st, 6th and 18th defendants and counsel to the 20th, 21st and counsel to the 22nd and 23rd defendants.

IRREGULARITY IN ORIGINATING SUMMONS

The 1st of these objections is or should have been in the nature of a preliminary objection. It is "that the plaintiff's claim not having been framed as required by Order 5, rules 2 and 5 of the Supreme Court Rules 1977, the originating summons is not properly before this Court and should be struck out and the claims dismissed."

This objection was raised by Chief Fani Kayode after counsel for the plaintiff, the 1st defendant, counsel for the 5th, 7th, 10th, 12th, 14th and 15th defendants, counsel for the 6th defendant and counsel for the 18th defendant had addressed the court. Order 5, rules 2 and 5, read:

2. "Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends on the construction of the constitution of the Federation or of a State, may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed.

5. The application shall be in Civil Form 9 in the First Schedule to these Rules and shall be supported by such evidence as the court may require.

Civil Form 9 which needs not be set out here requires the plaintiff to state the nature of interest it has before setting out the question for determination.

Chief F.R.A. Williams' answer was that the objection was belated and that the application was not in the form required by law (i.e. Rules of Court) and cited Order 2, rule 2 of the English Rules of Supreme Court, 1965, and that, in any event, the 20th and 21st defendants have suffered no injustice by the non-compliance. The said Rule reads:

"(1) An application to set aside for irregularity any proceeding, any step in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion."

This objection brings out only a procedural irregularity which has been cured by subsequent proceedings. Further, the provisions of Order 2, rule 2 set out above affords a complete and effective answer. There was no application by summons or motion notice of which containing the grounds of objection was given to the plaintiff filed in court. Even if there had been a summons or motion filed, as the party applying through his counsel has taken several steps and filed counter-affidavits and tendered documents admitted as exhibits in the proceedings, the application is incompetent and cannot be entertained. see Johnson v. Aderemi 13 W.A.C.A. 297-298: Adejumo v. Governor of Lagos State (1970) 1 All N.L.R. 183 at 185.

JURISDICTION

The next two objections which I propose to deal with together which interrelate are:

(1) That the plaintiff's claim is not justiceable and that the plaintiff has no locus standi.

(2) That this Court has no jurisdiction to entertain the action.

These objections were raised by Chief Akinjide the learned Attorney-General of the Federation, Chief Fani Kayode and Chief Onyiuke. They submitted that the main question raised is a political one which is not justiceable although the power to enact the Act being impeached was given by section 149 of the Constitution, the relevant provisions of which read:

"(2) Any amount standing to the credit of Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State, on such terms and in such manner as may be prescribed by the National Assembly.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manners as may be prescribed by the National Assembly.

(5) Each State shall maintain a special account to be called "State Joint Local Government Account" into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the government of the State.

(6) Each state shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(7) The amount standing to the credit of the local government councils of a state shall be distributed among the local government councils of that state on such terms and in such manner as may be prescribed by the House of Assembly of the State."

They emphasised that the mere act of legislation cannot of itself give the State the right to challenge the constitutionality of the Act passed. They further contended that until Bendel State's share of the revenue is quantified, her interest is inchoate and is insufficient to enable the State to impeach the validity of the Act in court. They also contended that there is no dispute disclosed in the claims endorsed on the originating summons to give the State any locus standi to bring this action and give jurisdiction to this court to entertain the suit as required by section 212 (1) of the Constitution. Section 212 (1) reads:

"The Supreme Court shall, to the exclusion of any other court have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends."

The question may be asked "Does the dispute as to the constitutional validity of the Allocation of Revenue (Federation Account, etc.) Act 1981 not involve any question (whether of law or fact) on which the existence or extent of a legal right depend? That cannot, in my opinion, be a political question requiring a political solution.

If the Act is valid, the existence or the extent of the legal right of the plaintiff under the Act will not be in doubt and if it appears that the legal right of the State has been curtailed the question of the extent of curtailment will be involved. If, as is contended, the Act is invalid, the legal right granted by the Act is non-existent and it disappears along with the Act. There is therefore, in my view, a justiceable dispute.

The word dispute which is the basis of the court's jurisdiction has not been defined in our Constitution. In the Websters New Twentieth Century Dictionary Unabridged, it is appropriately defined as being synonymous with controversy. It's meaning is given as "an attempt to prove and maintain one's own opinions, arguments or claims of another; controversy in words."

A dispute under section 212 (1) of the Constitution must be one that is appropriate for judicial determination. It must not be one which only political decision can resolve. It includes suits of civil nature and must raise an issue or question (whether of law or fact) on which the existence or extent of a legal right depends. It must be real and substantial admitting of specific relief. It must be definite and concrete. The word "controversy" was considered in the case of Aetna Life Insurance Company of Hartford, Conn v. Harworth 300 US 227 57 s. Ct. 461.

In that case, Chief Justice Hughes said at page 464 of 57 Supreme Court Reporter:

"A controversy in this sense must be one that is appropriate for judicial determination. Osborn v. Bank of United States 9 Weat 738, 819, 6 L. Ed. 204. A justiceable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.

It must be a real and a substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." (Italics are mine).

Section 212(1) of the Constitution definitely tells us that the dispute it refers to is not just a difference or controversy of a political hypothetical or abstract character. The section sufficiently indicates the question it must raise to be justiceable. Is there any substance in the contention that the dispute is non-justiceable and not within the jurisdiction conferred on the court by the Constitution?

In the instance of non-justice ability, consideration of the cause is not wholly and immediately foreclosed, rather the court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined and whether protection for the right asserted judicially moulded. In the instance of lack of jurisdiction, the cause does not arise either under the Constitution or any law that confers jurisdiction on the court. I see the contrary in this action. All the facts point to the existence of a justiceable dispute and jurisdiction of this Court.

Section 149(2) of the Constitution empowers the National Assembly to distribute any amount standing to the credit of the Federation Account among the Federal and State Governments and the Local Government Councils of each State on such terms and in such manner as it may prescribe.

This distribution is required to be made by an Act of the National Assembly validly passed by both the Senate and the House of Representatives. In this regard, subsection 4(a) of section 4 of the Constitution provides:

"In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-

(a) any matter in the concurrent legislative list set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite "

The Concurrent Legislative List listed "Allocation of Revenue, etc. "as" Item 1A." The second column setting out the extent of the Federal Legislative powers on this item reads:

(1) Subject to the provisions of this Constitution, the National Assembly may by an Act make provisions for

(a) The division of public revenue

(i) between the Federation and the States

(ii) among the States of the Federation

(iii) between the States and Local Government Councils

(iv) among the local government councils in the States.

From the provisions of section 149 and section 4(4)(a) of and Item 1A, part 2, Second Schedule to the Constitution paragraph 1 (a), it is clear that each State is entitled to a share of the public revenue and each can only get the share of the public revenue in the Federation Account when it is quantified and set out in an Act of the National Assembly validly enacted. It is a constitutional right given to the state to have her share quantified by an Act validly enacted. If a State Government contends that an Act which purports to make provision for the division of the amount in the Federation Account is not an Act of the National Assembly in that the bill which matured to an Act was not passed by the National Assembly; and the Federal Government contends that the Act is a valid Act of the National Assemble, there is in existence a dispute which involves a question of law, i.e. the validity of the Act, on which the existence of a legal right to the State's share of the public revenue depends. This dispute falls within the jurisdiction conferred on this Court by section 212(1) of the Constitution. The constitutionality of the Act No. 1 of 1981 therefore raise a justiceable issue. The contention of some defence counsel that it does not raised a justiceable issue is without substance and I hereby reject it. The two objections therefore fail.

LOCUS STANDI

On the issue of locus standi, the right and interests of Bendel State to a share of the public revenue as prescribed by a validly enacted Act of the National Assembly gives him sufficient standing to prosecute this action. Bendel State has only to indicate a justiceable dispute to give it locus standi to challenge the constitutional validity of legislation. This the plaintiff has done. It does not need to allege any trespass or injury or threats of trespass or injury as in the cases of individuals challenging the constitutional validity of legislation. It is only when a dispute is not disclosed that Bendel State can have no standing and the court will not pronounce the Act void.

The previous state of the law in Nigeria was based on English law considerations-considerations relating to a unitary state and these required a private person to show in jury peculiar to himself or that he had a particular interest to protect above any injury or interest common to others if he sued to enjoin a public nuisance or sought to keep a public body from exceeding its powers. Otherwise, it would be the Attorney-General alone who had standing to sue to protect public interest.

Two decisions of Canada Thorson v. Attorney-General of Canada (1975) 1 SCR 138 and Nova Scotia Board of Censors v. McNeil (1976) 2 SCR 265-have liberalised the previous approach of the Supreme Court of Canada. See also Attorney-General of Victoria Ex rel Dale v. Commonwealth (1945) 71 CLR 237: Frothingham v. Mellon (1926) 262 US 447. See also Lord Diplock in Reg. v. Inland Revenue Commissioners Ex parte Federation of Self Employed (1981) 2 WLR. 722, 735, 737C and 740.

The restrictive rule of locus standi developed in other jurisdictions cannot, in my view, operate against the constitutional duty of Bendel State Attorney-General of bringing to the notice of the court the unconstitutionality of the Allocation of Revenue (Federation Account, etc.) Act 1981. The constitution has opened the gates to the courts by its provisions and there can be no justifiable reasons for closing the gates against those who do not want to be governed by a law enacted NOT in accordance with the provisions of the Constitution.

The question of locus standi came up for consideration by this Court recently in the case SC.1/1981-Senator Adesanya v. the President of the Federal Republic of Nigeria and another 1981 5 SC 112.

The learned Chief Justice of Nigeria (Fatayi-Williams, C.J.N.) delivering the leading judgment with which I concurred said at page 134.

"Apart from the law relating to locus standi which have their roots in the common law in a country like outs, locus standi is also derived from the constitution, and the Fundamental Rights provisions in Chapter IV of the Constitution. Indeed a close scrutiny of our Constitution shows that the floodgates of litigation have not been left wide open."

at page 137.

"To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of sections 1 and 4 of the Constitution which I have enumerated above to be able to go to court and ask for the appropriate declaration and consequential relief if relief is required. In my view any person whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigerian Constitution. Indeed, it is his civil right to see that this is so. This is because any law that is inconsistent with the provisions of that Constitution is to the extent of consistency, null and void by virtue of the provisions of sections 1 and 4 which I have referred to earlier"

and at pages 140-141, he observed:

Finally, in the Nigerian context and having regard to the detailed provisions of our 1979 Constitution, the point which, I think, needs to be stressed is that there are explicit provisions therein which deal with the locus standi which is required in order to sustain a claim that there has been an infringement of particular provisions of the Constitution. Consequently, other infractions of the provisions of the said Constitution to which no restrictions are attached should not be fettered by the common law or the administrative concepts of locus standi. The complainant in such cases should be accorded a hearing subject only to the constitutional restrictions to which I have referred to earlier."

There being a dispute established to my satisfaction in accordance with the provisions of section 212 (1) of the Constitution, the matter fell within the exclusive jurisdiction of this Court. The objection to the jurisdiction is, in my opinion, without substance and therefore fails.

It is now left for me to consider the plea of Estoppel and Waiver raised by Chief Akinjide, learned Attorney-General of the Federation, Chief Fani Kayode and Chief Onyiuke.

ESTOPPEL

It is necessary to examine the definition of Estoppel before considering it in relation to the facts of this case. The doctrine of Estoppel forms part of the law of evidence, and an estoppel, except as a bar to testimony, has no operation or efficacy whatsoever. Its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail.

It has no other function. See Rogers v. Fitcher (1815) 6 Taunt 202. Thompson v. Palua (1933) 49 CLR 507 at 509; High Court of Australia per Sir Owen Dixon CJ.

In this instant case, it is raised to place obstacle in the way of plaintiff's case which might succeed. Estoppel does not lie in mere imagination or assertion, there must be facts proved which will give rise to estoppel. In Greenwood v. Martins Bank Ltd. (1933) AC 51 at 57, Lord Tomlin defined the essential factors as:

(1) a representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made;

(2) an act or omission resulting from the representation whether actual or by conduct by the person to whom the representation is made;

(3) detriment to such person as a consequence of the act or omission.

[see also the definition of estoppel in the book titled Estoppel by Representation by Spencer Bower and Turner, 3rd Edition by Turner at page 4 which is more comprehensive]

Chief Akinjide strongly contends that the doctrine of estoppel applies in this case and that estoppel can be raised against the State as well as individuals supporting it with a number of authorities from English courts and the United States Supreme Courts and U.S. States Supreme Court.

In appropriate cases, I have no doubt that the doctrine applies to the States as well as to individuals. Even in the light of the authorities cited by Chief Akinjide and the evidence before the Court I find myself unable to agree with him that it applies in this case.

The contention of Chief Akinjide appears to be that since Bendel State is already taking benefit under the Act, it is estopped from challenging the constitutionality of the Act.

Merely taking a benefit under an Act without the attendant relevant circumstances amounting to a representation including payment and receipt does not, in my view, create and estoppel. Bendel State has been receiving payments of her share of the amount in the Federation Account since the coming into force of the 1979 Constitution and before then and the receipt of her share paid by the Federal Government cannot under the Act constitute a detriment to the Federal government or benefit under the Act to the Bendel State Government to constitute an estoppel.

The Allocation of Revenue (Federation Account, etc.) Bill, 1980 was not assented to before 3rd February, 1981. But be it noted that on 9th January, 1981, i.e. before the Bill was assented to, the Central Bank of Nigeria Credit Advice Notice Exhibited along with the affidavit of Mr Okotie advised the Accountant-General of Bendel State as follows:

"Please note that your current account has been credited today with N27,410, 293.50 (Twenty seven million, four hundred and ten thousand, two hundred and ninety-three naira fifty kobo) being cash transfer from Accountant-General of the Federation for the month of January 1981 in your favour by the sub-Treasurer of the Federation."

After the Bill was assented to, similar advices for the month of February dated 5th February, 1981, for the month of March, dated 10th March, 1981 each notifying of the remittance of the same amount as contained in the January advice Notice were sent to the Accountant-General of Bendel State.

The summons in this case was taken out on the 5th March, 1981. If, as established in this Court, there was, by March 5, 1981, i.e. barely a month after assent, an action pending in this Court alleging differences of opinion as to the validity of the Act and challenging its constitutionality that fact is hardly any evidence of acceptance at any time of the constitutionality of the Act or acquiescence in the Federal Government's execution of the provisions of the Act to create a valid estoppel in pais.

In any case, the affidavit of Mr David Ajibola Omotade has said that the payment was for the discharge of their respective responsibilities under the Constitution. An estoppel cannot be set up if its establishment results in preventing the performance of constitutional and statutory duties. Similarly, it must fail if its establishment must result in illegality. [See Spencer Bower and Turner Estoppel by Representation 3rd Edition by Turner page 149 paragraphs 150-151; Maritime Electric Co. Ltd v. General Dairies Ltd., (1937) A.C. 610 at pages 619, 620 per Lord Maugham delivering the advice of the Privy Council; South Ottawa v. Perkins 94 U.S. 260; 24 L. Ed. 154].

There can be no estoppel against the assertion of the supremacy of the Constitution.

The authorities cited by the learned Attorney-General of the Federation do not, in my view, support his plea of estoppel. They are more in support of the plaintiff's submissions and contention. These are:

(1) The State ex rel Shell Oil Co. Inco. v. Register of State Land Office 192 Southern Reporter P. 519. A decision of the Supreme Court of Lousiana in the United States of America where Learned Justice at P. 521 (delivering the opinion of the Court) said:

"[2] (3) The State has two classes of powers; the one legislative, public, governmental in the exercise of which it is sovereignty and governs its people; the other proprietary quasi-private conferred upon it not for the private advantage of the inhabitants of the State itself as a legal personality. Wykes v. City Water Company CC. 184F 752 affirmed 9 Cir. 202 F 357 and cases therein cited. This distinction as applied to estoppel is made quite plain in 10 Ruling Case Law, Verbo Estoppel Section 31, wherein it is stated:

"It has been denied and affirmed with equal confidence that an estoppel can be applied to government. It is however quite settled that when the state makes itself a party to an action or to a contract or grant in its proprietary capacity it is subject to the law of estoppel as other parties, litigants or other contracting parties."

(Italics are mine).

(2) State v. Kingham 420 Pacific Reporter 2nd series 254, a decision of the Supreme Court of Wyoming.

(3) Federal Deposit Insurance Corporation v. American Bank Trust Shares 460 Federal Supplement 549.

(4) City of Austine v. Valcie C. Williams 44 South Western Report 2 series page 115.

(5) State v. Clausen 156 Pacific Reporter 554.

(6) United Fuel Gas Co. v. Railroad Commission SC Reporter Ed. 300-322: 278 US 390 73 L. Ed.

The cases cited are of no assistance to the defence in this case and the estoppel plea raised in this case fails.

WAIVER

Chief Akinjide also contended that the defence or plea of waiver was available to the 1st defendant. He cited:

Clarke & Another v. Barnard 108 US 436 2 S. Ct. R. 878 and Pardem V.

Terminal Railway of Alabama State Docks Department 377 US 184, 84A sct. 1208 in support.

These two cases are not on all forms with the instant case.

This plea of waiver was founded also on the facts already set out during the consideration of the plea of estoppel. Waiver is defined as follows:

"Where A dealing with B is confronted with two alternatives and mutually exclusive causes of action relating to such dealing between which he may make his election and B so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt one course and definitely reject the other and B in such belief alters his position to his detriment, A is precluded as against B from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting."

See Lissenden v. C.A.V. Boch Ltd (1940) AC 412 at 418-419 per Lord Maugham.

Young v. Bristol Aeroplance Co. (1946) AC 163 Lord Atkin. See also Banning v. Wright (1972) 1 WLR 972 at 979c per Lord Hailsham.

The defence of waiver is only available on a plea of confession and avoidance. It is the abandonment of a right in such a way that the other side is entitled to plead confession and avoidance. See Isaacs J. in Craine v. Colonial Mutural Insurance Co. Ltd. (1920) 28 CLR 147 PC at page 327.

There are no facts adduced to warrant an inference or conclusion of waiver in this case and the plea must be rejected and I hereby reject it.

A contract ultra vires a statute cannot be validated by an application for estoppel. St. Mary Islington Vestry v. Hornsey Urban District Council (1900) 1 Ch. 695 at pp. 05, 706.

In the case of express contract to waive a right, if the public interested as well as the party in the general observance prescribed by the statute, it has always been held on the ground of public policy that there can be no waiver even by express contract or consent of the right to such observance by an individual party [Harris v. Harris (1952) 1 ALL E.R. 401 at 403 per Lord Goddard CJ].

The maxim is quilibet protest renuntiare juri pro se introducto. It must not be overlooked that it has been declared in section 14 (2)(b) of our Constitution that the "security and welfare of the people shall be the primary purpose of government" and section 13 of the said Constitution stipulates and directs that;

"It shall be the duty and responsibility of all organs of government and of all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this chapter of this Constitution."

That chapter deals with the fundamental objectives and directive principles of state policy and although its provisions are not justiceable they contain a statement of the public policy of the government. If the waiver set forth by the learned Attorney-General were allowed, it would defeat the objectives of the Constitution and subject the country to dictatorship contrary to section 14(1) which states:

"The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice."

CONCLUSION

In conclusion, all the objections are untenable and must be dismissed. I hereby dismiss them.

There is no question of this Court interfering with the exercise of legislative powers in breach of the doctrine of separation of powers postulated behind the vesting of legislative, executive and judicial powers in three separate departments of government in Nigeria. A close study of the minutes of the Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980, exhibit 'SC5' has revealed that three new clauses, i.e. 6, 7 and 9 were added by the Joint Conference Committee to the Bill passed by the Senate. Those three new clauses transformed the Bill into a new Bill different from the Bill passed by the Senate and very different from the Bill passed by the House of Representatives. This new Bill was the Bill presented to the President to which he gave his assent following the assurance conveyed erroneously by the certificate of the Clerk to the National Assembly. This is the Act that has been portrayed as the Act of the National Assembly which this Court is being urged to uphold.

Will it not be a betrayal of trust to allow such a Bill, not passed by the National Assembly-the body vested with the powers to make laws to remain in our statute book? I think it will be. Is there any doubt therefore about the wisdom of the makers of the Constitution in inserting section 4 (8) to ensure that laws are made by the body vested with the powers to make laws? Certainly, there is none. Will this Court shrink from doing its duty of preserving the Constitution inviolate and ensuring that an Act not passed by the National Assembly does not remain in our statute Book? It will not shrink from declaring the Act No. 1 of 1981 unconstitutional and void and removing it from our Statute Book.

The answer to the main question posed has to be answered in the negative that is that the Allocation of Revenue (Federation Account, etc.) Act 1981 No 1 of 1981 is not an Act of the National Assembly.

On the whole, the plaintiff's action succeeds.

The claim, claim 2 (d) succeeds and the Act No. 1 of 1981, Revenue Allocation (Federation Account, etc.) Act 1981 is hereby declared unconstitutional. Claim 2 (f) also succeeds and the injunction claimed is hereby granted.

Claim 2 (c) fails and the declaration that the Joint Conference Committee on Allocation of Revenue (Federation Account, etc.) Bill 1980 which met did not constitute a meeting of the Joint Committee of the National Assembly on Finance contemplated by section 55 of the Constitution is hereby refused.

Claim 2 (a) and Claim 2 (b) in so far as they are relevant to the determination of claim 2 (d) will be granted along with claims 2 (d) and 2 (f) otherwise they are hypothetical claims which will not be entertained and the declarations sought in such hypothetical claims will be refused. The Act No. 1 of 1981 having been declared unconstitutional and null and void, it is necessary for me to pronounce on claims 1 (d) and 2 (e). The only observation I would make in respect of those claims is that wide as the powers of the National assembly are, it is necessary to keep within the limits set by the Constitution and not to encroach on the powers given to the States by the same Constitution.

I agree with all the declarations and orders made by my learned brother, Fatayi-Williams, C.J.N.

Kayode Eso, J.S.C.: In this action, which came before this court by way of originating summons, very important constitutional issues, as have already been discussed in the judgments of my learned brothers, who have already read their judgments, have been raised. While I respectfully agree with and fully endorse the reasoning and the conclusion reached in the judgment which has just been delivered by the learned Chief Justice of Nigeria, the draft of which I have had the privilege of a preview, I would like to make general comments on some of the various issues which have been raised before this court, if only as a means of emphasising the constitutional importance of this case.

The action itself, as was pointed out in the opening submission of the leading counsel for the plaintiff, Chief F.R.A. Williams, S.A.N. and in the aforesaid judgment of the Chief Justice, touches on the revenue of the Bendel State. The facts, which are not in controversy, have been most adequately presented also in the judgment of the learned Chief Justice and I do not intend to repeat them in this judgment, except where I make reference to any of them in various headings under which I intend to treat this judgment. I would deal with the issues which were raised in this case seriatim, though they may not necessarily be in the order in which they were argued by learned Counsel. I would begin with the issue of the Jurisdiction of this Court to entertain the action.

ISSUE OF JURISDICTION:-

I agree that this Court has jurisdiction in this case. The issue of jurisdiction is, nevertheless, of paramount importance.

The pertinent question in regard thereto, as I see it, is as has been raised in the submissions of Chief Williams, Chief Akinjide, learned Attorney-General of the Federation; Mr. G.O.K. Ajayi; Chief R.A. Fani-Kayode and Chief Onyiuke, and it is that in a country which operates a constitution which embodies separation of powers, could the Court strike out a statute passed by the Legislature on the ground that the statute has not been passed in accordance with a procedure which has been laid down for the passing of Bills into Law under the Constitution? In other words, would such striking out of the statute not amount to the court pronouncing on the internal proceedings of a sovereign legislature? Has the court jurisdiction in such matter?

To appreciate the contention of learned Counsel on this issue of jurisdiction it is necessary to examine the claim of the plaintiff. As this has been copiously set out in the judgment of the learned Chief Justice of Nigeria, I do not intend to repeat it in this judgment. It is sufficient, I think, that one bears the principal claim in mind to appreciate anything further in this judgment.

Chief F.R.A. Williams maintained there is such jurisdiction in this Court. However, the principal argument of Chief R.O.A. Akinjide, the Federal Attorney-General that though s.212 (1) of the Constitution of the Federal Republic of Nigeria, 1979, gives to the Supreme Court original jurisdiction, to the exclusion of any other court, in any dispute between the Federation and a State, or between States, in so far as that dispute involves any question on which the existence of a legal right depends, the key word in that provision is "dispute". In so far as the attack on the Allocation of Revenue (Federation Account, etc.) Act is based on the procedure adopted by the National Assembly in passing the Act, there could be no dispute between the Federal Government and a State. The Legislature, contended Chief Akinjide, is vested with certain powers under the Constitution and, within those powers, it is sovereign.

Chief Fani-Kayode's submission in regard to this issue was also that s.212 (1) of the Constitution could never apply except in cases where there is a dispute between the Federal Government and a State. Even in the United States, where the rules are so wide, contended learned Counsel, there should still be some controversy in law. None of that, counsel concluded, occurs in this case.

For his part, Chief Onyiuke examined ss.6 and 212 of the Constitution and submitted that the pre-conditions provided by s.212 must be satisfied before the court could assume jurisdiction. He went on-the mere fact that there is a non-compliance with the constitutional requirements of law-making does not by itself entitle the plaintiff to come to this court, and ask an Act passed by the Legislature to be rendered null.

Now, it is true that the Legislature, especially in a country, like ours, which has accepted the doctrine embodied as a provision of its constitution, is "a master of its own household is where the powers of such Legislature have been specifically restricted under the Constitution (see Bribery Commissioners v. Patrick Ranasinghe (1965) A.C. (P.C.) 172 as at p. 197). It would of course be necessary to examine whether there are such restrictions in this case, but before doing that, one has to examine the very scope of s.212(1) of the Constitution of the Federal Republic, which section, as all counsel have rightly agreed, gives this court its original jurisdiction. The subsection provides:

"212 (1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction on any dispute between the Federation and a State or between States if and in so far as that dispute involved any question (whether of law or fact) on which the existence or extent of a legal right depends."

Chief Fani-Kayode, to my mind, made a succinct four point analysis of this subsection with which I would agree. He said-

(1) there should be an existing dispute:

(2) the dispute must be between the Federation and the States or between States;

(3) the dispute can only be justiceable, if it involves a question of law or facts;

(4) on some question or issue, the existence of a legal right to something, or the other, extends.

However, in my view, in this case, the claim as set out by the Plaintiff, points out to a distinctive dispute between the Plaintiff/State and the Federal Government. The Bill, the validity of which is being challenged by the Plaintiff, provides in its clause 1 for the distribution of the amount standing to the credit of the Federation Account on the basis of certain percentage to the Federal Government, certain percentage to the Local Government Councils. If therefore, the Plaintiff was dissatisfied with, as it was, and decided as it did to challenge, the way the national revenue was being distributed between the Federal Government and the States, on the ground that the legislation which was employed to distribute the national revenue did not in fact, or in law, follow the procedure which has been laid down for the enactment of such legislation under the Constitution, then I am firmly of the view that a dispute has arisen between the Plaintiff/State and the Federal Government.

But, indeed, the challenge by the defendants to the jurisdiction of the court in this case is not limited to s.212(1) of the Constitution as would be seen in the submissions of learned Counsel. It is, also, and more importantly, as to whether the Judiciary could justifiably interfere with a sovereign legislature in its function of passing a Bill when the complaint before that judiciary is in regard to the procedure which was adopted by the Legislature in passing the Bill into law. The whole issue cannot therefore be resolved by a decision that there is a dispute in accordance with the provision of s.212(1) of the Constitution and no more. An appropriate approach is, after it has been resolved that there is such a dispute, to make an enquiry into how "sovereign" is the "sovereign Legislature" under our Constitution. Is it true, or in other words, and in the language of the Privy Council decision in the case of Bribery Commissioners v. Ranasinghe (supra), that there are constitutional restrictions entitling the judiciary to interfere with the sovereign legislature which has been established under our Constitution, especially where that Constitution provides for distinct separation of powers between the three main functionaries under the Constitution? This separation of powers is crystallised in sections 4, 5 and 6 of the Constitution. s.4(1) of the Constitution vests the legislative powers of the Federal Republic in the National Assembly for the Federation, while s.5 of the Constitution vests the executive powers of the Federation in the President and section 6 vests the judicial powers of the Federation in the courts. Yet this separation of powers cannot in the context, be regarded as absolute nor do they exist in completely watertight compartments. In regard to the legislature, subsection (8) of section 1 of the Constitution creates a check. The subsection is an important provision, which empowers the court to oversee the exercise of legislative powers by the National Assembly. It provides-

To my mind, this subsection confers a supervisory jurisdiction on the Courts as regards the exercise of legislative powers by the National Assembly.

The legislature is however not singled out among the three functionaries for this type of delimitation on its "sovereignty". The delimitation which is in the nature of checks and balances is provided for under the Constitution as regards all the three functionaries. In regard to the Presidency, s.5 of the Constitution which vests executive powers of the Federation in the President, makes the exercise thereof "subject to the provisions of the Constitution" and this, in effect, entails the exercise of the executive powers of the President to be subject to s.6(6) of the Constitution, s.6(6)(b) thereof extends judicial powers to matters between government or authority and any person in Nigeria.

The pertinent question in regard to the Legislature is, what are those legislative powers, the exercise of which is subject to the jurisdiction of the court, or to ask the question in another form, where do the legislative powers begin and where do they end? In my view, legislative powers commence when a Bill is introduced in either House of the National Assembly and end when the Bill is submitted to the President for his assent. I hold the view that what the President does, in assenting to a Bill is performing executive powers within a legislative process.

If, in the process of the exercise of this legislative power by the National Assembly, there is such a constitutional defect as to lead to an interpretation to the effect that a Bill was not passed according to law, that is, does not follow the procedure laid down under the Constitution for the passing of a Bill, then the Bill which has passed through such exercise is null and what the President assents to, in exercise of his executive powers within the legislative process is a nullity. The Supreme Court in exercise of its jurisdiction under s.212, when there is a dispute under the section, could adjudicate on the issue. And this constitutes the limitation on the sovereignty of the Legislature.

The President, under the Constitution, has no constitutional power to assent to a Bill which has not been passed by the National Assembly (see Field v. Clark 143 U.S. 649 at p. 672 reported in 36 U.S. Supreme Court Reports Lawyers Edition as at p.303 as per Justice Harlan). When a Bill is said to be passed by the National Assembly it can only mean that it has been so passed in accordance with the procedure laid down under the Constitution.

AUTHENTICATION OF THE BILL UNDER THE ACTS AUTHENTICATION ACT

Of course, there is the question, which was strenuously raised by the learned Counsel for the defendants, of the effect of the authentication of a Bill under the Acts Authentication Act 1961 No. 50. Once a Bill is authenticated under the Act, it has to be presumed that it has passed through all constitutional processes, submitted learned defence counsel. If this were so, then the jurisdiction of the court in its enquiry is limited, for it would not be able to go behind the authentication to see if in fact the Bill passed through all the necessary procedures.

In regard to this, and as a means of comparison, a lot of reference was made to the structure of the United States Constitution, and because that Constitution also provides for separation of powers like our Constitution, learned Counsel wove their submission around a good deal of the decisions of the Supreme Court of the United States. In particular, learned Counsel relied, on this issue of jurisdiction and the effect of authentication of enrolled bills thereupon, on the United States Supreme Court decision in Field v. Clark (supra). So also did learned Counsel make reference to the situation and the decisions of the Courts in India.

First of all, I would like to say that as much as the decisions of the Supreme Court of the United States or any other country operating the Presidential system and adopting the separation of powers, as in this country, would provide a persuasive authority for this Court, it is necessary to appreciate that these decisions, wherever relevant, should be used as guidance only. They are not to be blindly followed. The Nigeria Constitution, as Fatayi Williams, C.J.N., pointed out in Abraham Adesanya v. The President of the Federal Republic of Nigeria and anor. (1981) 5 S.C. 10 and I agree, is made to suit the peculiarity of the Nigerian society-a multi-ethnic society living in a developing country. What obtains in the United States of America, and in India for that matter, which have different socio-economic and different political developments, does not necessarily obtain here. The attitude of this court, to the interpretation of this country's Constitution shall not follow like a "copy cat", the interpretative stance taken by the United States or any other country. The United States Supreme Court has, over a period of time developed an attitude which manifests a desire to nationalise, harmonise and develop its legal principles and its decisions generally in accordance with particular political situations or economic development of the country. As these situations shift from time to time so do the Judgments. It is difficult, in many cases, to discern from the decisions of that court a clear principle (c/f Plenny v. Ferguson (1891) 163 U.S. 567 where this court in a case of segregation decided that it was constitutional to have separate accommodation for blacks and whites once such accommodation is "equal" with the same Supreme Court decision in Brown v. Topeka (1954) 347 U.S. 483 where the court declared such accommodation unconstitutional).

And be that so, it is for this court to develop its own interpretative stance within the background of the country's development and history.

But even in such a developed society as the United States of America, the Supreme Court in that country does not, and could not, for the reasons of shifting political and socio-economic situations, leave matters cut and dry. Let us examine as another instance, the decision of that Court in Field v. Clerk (supra), a case upon which learned Counsel on all sides in this case seemed to rely, on the issue of an enrolled Act. In dealing with this issue, the Court recognised as an object of such enrolled Act, that the clause of the Constitution requesting each House to keep a journal of its proceedings was to ensure wide publicity to the proceedings of the Legislature and also to ensure a correspondent responsibility of each member of congress to his respective constituents. This "publicity and responsibility" principle, the court pronounced in that judgment as a sound policy and one of deep political foresight, while the court in the same vein held that the President of the United States would have no authority to approve a Bill which has not been passed by Congress. But after deciding so much, the court went on, in a manner which appears to me to reveal its difficulty in the matter-it held that the evils that may result from a recognition of the principle that an enrolled Act should be conclusive evidence that it was passed by Congress, according to the forms prescribed by the Constitution, would be far less than what would result from a rule which makes the validity of Congressional enactments dependent upon the manner in which journals of the respective House are kept.

Of course, this is a seeming contradiction, and it goes to show the difficulty, the court went on to put some limitation on the general principle which it has enunciated. It made exceptions to the general rule, thus enunciated, by reference to States like Illinois, which have peculiar constitutional provisions. The court talked of "constitutional or statutory (note merely statutory) provisions, of a peculiar character, which expressly or even by necessary implication, require or authorise the court to go behind the enrolled Act.

I think our constitution framers are wise. Section 4(8) of the Constitution seems to me to provide a very good check upon the Legislature. And it is this check that creates a restriction on the sovereignty of the Legislature. It is, to my mind, a far reaching provision which goes to avoid the type of the seeming ambiguity present in the United States decision in Field v. Clerk (supra). If an authentication certificate, like Ex SC.6 in the instant case, carries what Chief Williams terms "death wounds" or more explicitly, if an Act which is required to be passed by the National Assembly under the Constitution, is stated on the authentication certificate to have been passed by a Committee rather than by the National Assembly, would, in exercise of that jurisdiction, refrain from looking behind the certificate to determine whether the Bill was passed according to law, only because there is in existence a provision in a legislation, that is, the Acts Authentication Act, (not in the Constitution) which stipulates that a certificate, signed by the Clerk of the National Assembly, under that Act, in regard to a Bill, shall be conclusive for all purposes?

I do no think that such a provision, which would only provide a prima facie conclusive evidence, could prevent a court's interference if, on the face of it, the certificate reveals an obviously unconstitutional procedure. Could the Bill still remain valid, if after the exercise of its jurisdiction, by the court, which jurisdiction is provided for by s.4(8) of the

Constitution, it is found that the Certificate, authenticating the Bill infect, covers a Bill which has not gone through a correct constitutional procedure? In my view, the answer is no.

I think Chief Onyiuke, learned Counsel representing the Clerk of the National Assembly, took a correct attitude when he conceded that it the entries in SG.6 amount to "death wounds" the Court would have to look at the journals of the National Assembly in determining the whether the Bill was constitutionally passed or not.

Indeed the decision of the Supreme Court of the United States in Field v. Clark (Supra), or that of the Supreme Court of Illinois in Spangler v. Jacoby 14 III. 297 which, because of the peculiar Constitution of the State of Illinois proceeded upon grounds opposite to that of Field v. Clark (Supra), or the Supreme Court of the United States' decision in Town of South Ottawa v. Noah Perkins 94 U.S. 260, where Justice Bradley, delivering the opinion of the Court, acknowledged that while any particular State in the United States may, by its Constitution and laws, prescribe what shall be conclusive evidence of the existence or non-existence of a Statute, the question of existence or non-existence of the Statute is a Judicial one in its nature, and that the mode of ascertaining and using such evidence must rest in the sound discretion of the court on which the responsibility rests in any particular case,-these decisions should be sufficient warning as to the amount of reliance which could be placed by this Court upon the decisions of the courts in other countries which operate the same type of our Constitution, in the interpretation of our Constitution. Gone should be the days, if ever they were, when the decisions of other Courts in any common law country are to be accepted in this country as precedents in the like of the delphic oracle. The decisions of any court, other than those of this court, are only to be treated as the respected opinions of those courts, which were given in their wisdom, under given circumstances and given environmental and cultural background, and no more. They are, at best, to give a guidance of what those courts did in those circumstances, and the wisdom to be drawn from them by this Court would be reflected in its dealing with the peculiar problems of this country, to which the Constitution which this country operates, is peculiar.

In regard to journals kept by the Legislature, which formed the cornerstone of the United States decisions referred to (supra), our Constitution assumes that each House of the National Assembly shall keep a journal. This is to be inferred from the provision of s. 82 of the Constitution. Where therefore the procedure which has been adopted by the National Assembly in the exercise of its legislative powers, as contained in the journal, is the contrary to the procedure laid down under the Constitution, which subjects the exercise of the legislative powers of the National Assembly to the Court, any authentication of a Bill which has been passed under a procedure that is contrary to the provisions of the Constitution is void. And to that extent, that is, to the extent that s.2(2) of the Acts Authentication Act, which provides that such certificate is conclusive for all purposes, s.3(2) which makes production of a copy of the gazette containing the schedule conclusive evidence and section 6 thereof, which provides-

"Every Act which purports to be published by authority and bears a number and reverence to a year and a date of commencement or reference a section shall be received in all Court and by all persons as sufficient evidence that it has been assented to by the President,"

are meant to inhibit the powers of this Court to go behind the authentication of a Bill and to decide as to the constitutionality thereof, these aforesaid sections of the Acts Authentication Acts 1961, No. 50 are void. To hold otherwise would be to accept the Acts Authentication Act as a legislation that ousts the jurisdiction conferred upon the court by s.4(8) of the Constitution. But this can never be. It is the reverse that is in fact, correct.

And as a final note on the issue of jurisdiction, it is my humble view that the court should not place a constraint upon itself by placing a narrow interpretation on s. 4(8) of the Constitution. The exercise of the legislative powers by the National Assembly which is subject to the jurisdiction of the court, should in my view be interpreted as the entire legislative process that is, from the time the bill is set down for debate in the National Assembly to the time of the assent by the President. To put a narrower interpretation on this would be to inhibit the check on the Legislature, the responsibility for which the framers of the Constitution positively place upon the Judiciary. And this is one of the things that give the Nigerian Constitution its own peculiarity.

There is no known provision, for instance, in the American Constitution that is analogous to s.4(8) of our Constitution. Art III s.2 of the Constitution of the United States does not extend the jurisdiction of the courts to supervise the legislative powers of Congress. S.4(8) of our Constitution is thus unique and it exists, as I have said, to deal with the peculiar circumstance of this country. Once there is a or suspected infraction of the legislative process, a State, as the plaintiff in this case, is entitled to come to the court and the court should not deny it jurisdiction. In regard to this point, I whole heartedly endorse the pronouncement of Fatayi-Williams, C.J.N. when in the Adesanya case (supra) he said-

"With these observations in mind, I take significant cognisance of the fact that Nigeria is a developing country with a multi-ethnic society and a written federal constitution, where rumour-mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution, or that any law passed by any of our legislative House, whether Federal or State, is unconstitutional, access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organised disenchantment with the judicial process."

and also, when the learned Chief Justice said in the same judgment-

"any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria, or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigeria Constitution. Indeed, it is his civil right to see that this is so. This is because any law that is inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of sections 1 and 4 to which I have referred earlier." (Italics is mine).

On constitutional issues, if this is what it imports, let there be a floodgate. The Constitution can only be tested in the courts and it is access to the courts for such test that will give satisfaction to the people for whom the Constitution is made. Or how else could the provision of section 1(2) of the Constitution, which places the entire governance of the Federal Republic in the Constitution be given effect to? If, as that subsection provides, the country is to be governed in accordance with the provisions of the Constitution, if no one, also as the subsection provides, should take control of the Government of the country except in accordance with the Constitution, then the courts, in whom is vested jurisdiction to interprete the Constitution should not shy off, but accept on a broad principle jurisdiction to interprete the Constitution. (See also the observation of Lord Diplock in Reg. v. I.R.C. Exparte Federation of self-Employed (1981) 2 W.L.R. 722 at pages 735, 736, 737, 738, 741 and 722, a judgment given about the same time as the one by the Chief Justice of Nigeria in the Abraham Adesanya case.

It has to be accepted that our Constitution has undisguisedly put the Judiciary in a "pre-eminent" position, a position unknown to any other Constitution under the common law, where the Judiciary has to see to the correct exercise of the legislative powers by the National Assembly [2.4(8)]. There is no doubt that this is a frave responsibility, in the exercise of which, though the court has to interprete the Constitutional provisions broadly, it should also accept the corresponding attendant responsibility with equal graveness.

CAUSE OF ACTION AND EVIDENCE ADMISSIBLE IN PURSUANCE OF THE ORIGINATING SUMMONS

The learned Attorney-General of the Federation raised objection to the use of the legislative journals which were tendered as evidence in this case. This of course would affect practically all the exhibits which have been so tendered except Exhibit SC.6, which is the certificate of the Clerk of the National Assembly which as I have said above, was issued under the Acts Authentication Act. It would also include all the Votes and Proceedings in both Houses of the National Assembly, Proceedings and Minutes of the Join Conference Committee on Allocation of Revenue and the National Assembly Debate. Chief Akinjide made reference to various countries like the United States of America, Australia and England, where such journals are excluded from evidence. The learned Attorney-General submitted that though in some countries, like the United States of America, the Courts look at the proceedings they are not accepted as evidence for the purpose of attacking the validity of an Act. He referred, among others, to the Supreme Court of the United States decisions in Field v. Clark (supra) and Harwood v. Wantworth 162 U.S. (54) and also some Australian decisions, in particular South Australia and anor. v. the Commonwealth and anor. (1941) 65 C.L.R. 373; 388.

With respect, this last case, that is, the Australian case deals with inadmissibility of speeches and could not be of any relevance to the issues involved in this case.

Chief Fani-Kayode dealt with both the cause of action in the case and the nature of evidence put in by the plaintiff and also the admissibility thereof. On the originating summons, Chief Fani-Kayode contended that the claims in the summons were hypothetical and vague. In so far as the evidence is concerned, counsel's submission was that the Court had to make an order for the use of affidavits before such affidavits could take the place of pleadings. Otherwise, the use of affidavits in a case of this nature would not be permissible. However, learned Counsel did concede that in this type of case, the court not close its eyes to the evidence, once that evidence is placed before the court.

The short answer to these objections is, however, that this court will, as it has said in several decisions, rather look into substance than form. It is the primary aim of this court to do substantial justice and this should, indeed, be more pronounced in Constitutional matters. Once the parties to a case enter appearance in a constitutional matter of this nature, and once it is shown that the action could be entertained under s.212 of the Constitution, as in this case, or entertained under the other provisions of the Constitution, as in this case, or entertained under the other provisions of the Constitution granting jurisdiction [see in particular s.6(6)(b) and s.4(8) then the court, after it has assumed jurisdiction, should be liberal in the application of its rules.

The jurisdiction conferred upon the Supreme Court in regard to the interpretation and adjudication on the Constitution is a special jurisdiction. The Court cannot justify its usefulness in regard to this peculiar jurisdiction by being inhibited with technicalities. Such inhibition will only serve to destroy the entire constitutional purpose of the court. It is not my intention to lay down that rules of court are to be completely wiped off. I accept that rules are not made for fun but made to be followed; however, in the exercise of its peculiar jurisdiction, that is, matters partaining generally or specially to the interpretation of the Constitution, this court cannot afford to enter into or dwell in the realm of technicalities. It is important that the Supreme Court, more than any other Court in the land, should be seen to be substantially just than merely appearing to be so.

But even if the matter is looked at purely against the background of strict technicality, I agree with Chief Williams that the Rules governing this court in its original jurisdiction would be the Rules made for the Federal High Court, that is L.N.34 1976, and in any event, it was too late for the type of objection raised by Chief Fani-Kayode, who has on behalf of his clients, the National Assembly, entered appearance and put in some evidence. Most importantly is the fact that in this case, no injustice has been done to the case of the defendants as a result of the Court having waived aside technicalities.

Another very important fact is that the documents which form the basis of the evidence in this case, and which are being complained of, are all public document. They contain public facts which this court is entitled to take judicial notice of. (See ss. 72 and 73 of the Evidence Act which have been set out in the judgment of the learned Chief Justice of Nigeria)-and in regard to proof, even when the court does not invoke its right to take judicial notice of the facts, practically all the documents are covered by s. 11 of the Evidence Act-which provision has also been set out in the judgment of the learned Chief Justice.

There is therefore no merit whatsoever in this objection taken by learned Counsel.

ESTOPPEL AND WAIVER

It was Chief Akinjide's contention that a plaintiff who has taken benefit under a Statute could not challenge its constitutionality. In this case, all the States, including the plaintiff, are already taking their shares of the revenue

allocation made under the Act now complained of. Counsel relied on several decisions of the United States Supreme Court and submitted that estoppel and waiver should apply to a State which is a party to a suit as it should apply to an individual.

As regards estoppel, vis-a-vis States, counsel also made reference to the decision of Denning J., as he then was, in Robertson v. Minister of Pensions (1948) 2 All E.R. 767 where the learned Judge said that the court could not escape by saying that estoppels do not bind the crown as that doctrine according to the learned judge, had long been exploded.

I would like to deal with the issue of estoppel first. I hold the view, with respect, that one cannot contract out of the Constitution. It would be idle, in my view, for the President of the country, and or the National Assembly to plead estoppel if they have a constitutional duty to share the country's revenue in one way but they have done it in a different way. I think Chief Williams made a most valid point when he said that to allow estoppel in a matter like this would lead to a disastrous consequence of having one State estopped from questioning a constitutional act only because it has collected and accepted its share of revenue allocation whereas another State will not be estopped because it has not, when indeed the procedure adopted by the National Assembly in regard to the share of the revenue among all the States, including those who have accepted their share and those who have not, is unconstitutional. In this wise, the dictum of Justice Bradley is apt, and I respectfully agree with it, when he, in South Ottawa v. Perking 94 U.S. 134 at 157, said that there could be no estoppel, in the way of ascertaining the existence of law.

"That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be and not according to the shifting of circumstances."

No unconstitutional act could ever be validated by raising the defence of estoppel-see Spencer Bower's Estoppel by Representation 3rd Edition p. 139 para. 141. It would destroy the whole doctrine of ultra vires, or unconstitutionality for a done of constitutional power to extend his power or even diminish it in any form by relying on the doctrine of estoppel. (See Min. of Agriculture v. Mathew (1949) 2 All E.R. 724 at p. 729). No estoppel will operate to negate the operation of a statute or the provision of the Constitution (see Beesly v. Hallwood Estates Ltd. (1960) 2 All E.R. 3141 Chapman v. Michaelson (1968) 2 Ch.D.612 at p.621.

As regards "Waiver", the pertinent question must be whether Bendel State, the Plaintiff in this case, has waived its right to come to court by its acceptance of the revenue allocation made to the State by the Federal Government.

The instant case has not been brought by an individual, but by a State, which represents the entire people in the State. That there is public interest involved in this case goes without saying; therefore if only on the ground of public policy, there could be no waiver in such a case. The maxim cui libet licat renumtiare juri pro se introducto is no doubt valid for an individual who can waive his personal right under a statute, but when the statute is for the public benefit, or even more importantly, when what is being sought by a State is, as in this case, a constitutional interpretation affecting the rights of the entire public in the country, it is obviously not pre publico, but contra publico to introduce the doctrine of waiver. No State can waive the rights embodied in statutory or constitutional provisions which have been made in favour of the whole country.

But, even in regard to pure issue of fact and proof, there is nothing in the evidence before this court to show that the allocation of the revenue made to the States and accepted by them has been under the Act complained of. On the contrary, the evidence discloses that what the States receive now are the same percentages as they received before the purported coming into force of the Act.

Neither the defence of estoppel nor that of waiver is, therefore, well founded in this case.

INTERPRETATION OF THE CONSTITUTIONAL PROVISIONS

The core of this case lies really in the interpretation to be placed on the constitutional provisions which have been made the subject matter of this action and they are sections 54, 55, 58 and 149 of the Constitution.

Firstly, it is conceded by all the counsel to this action, except Mr. G.O.K. Ajayi, that the Bill in question is a Money Bill. The real question in issue is what is the mode of exercising Federal Legislature over a Money Bill? Is the mode to be governed by section 54 or by section 55 of the Constitution or by both sections? As of these sections have been fully set out in the aforesaid judgment of the Chief Justice, I do not intend to repeat them.

There is also the question of Committees when a situation arises under s.55(2), whereby a Bill, to which section 55(1)-an appropriation Bill, a supplementary appropriation Bill or any other money Bill-applies is passed by one of the Houses of the National Assembly, but is not passed by the other House within a period of two months form the commencement of a financial year. There is the further question of what amounts to failure by one House to pass the Bill after the other House has passed it. The problem is more compounded when the Bill is submitted simultaneously to the two Houses. What is the joint finance committee referred to under s.55(2)? Is it an ad hoc committee or a standing committee? What is to happen when the joint finance committee fails to resolve the differences referred to it? What constitutes "failure" to resolve the differences? Then s.55 (5) in defining "joint finance committee" makes reference s.58(3) of the Constitution s.58 of the Constitution provides-

(2) The number of members of a committee appointed under this section, their terms of office and quorum shall be fixed by the House appointing it.

(4) Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which is it empowered to determine by resolution under the provisions of this Constitution, but the committee may be authorised to make recommendations to the House on any such matter.

Having regard to the reference of s.58(3) to "a joint committee on finance" and reference to "the joint finance committee" in subsections (2) and (5) of section 55, are the two terms, that is, "a joint committee on finance" and "joint finance committee" synominous? And lastly, though not in the least less importantly, what precisely does section 58(4) mean? After the joint finance committee would have "resolved" the differences, does the Bill still go to either or both Houses of the National Assembly or is it to be deemed to have been passed by both? These are the questions that have to be answered by this Court. They are important constitutional questions but happily, we had the advantage of most brilliant submissions in regard thereto.

As I have earlier stated, apart from G.O.K. Ajayi, who submitted that the Bill under reference in this case is not a money Bill, all learned Counsel in this case agree that the Bill is a Money Bill under s.55(1) of the Constitution.

Chief Williams submitted that s.54(1) applies to all Bills, be they ordinary or money Bills. The assent by the President is given after the Bill has been passed, and the Bill must be passed by both Houses. In regard to s.55(2), the subsection provides a machinery for the purpose of resolving differences between the two Houses. The object of the Committee, said Chief Williams, is not to arbitrate but to mediate and find a formula acceptable to the two Houses. In pursuance of this, the Committee would go by a majority decision and where the Committee finds alternative formulas and one of the formulas is preferred by the majority of the Committee it is still open to both Houses to adopt a minority formula, especially as it is the National Assembly that has constitutional responsibility under s.54(2) to pass a Bill into Law. What in effect learned Counsel was saying is that, the ultimate decision lies with the National Assembly and not the joint finance committee, which committee, is merely and intermediary.

In a further submission that section 54 and 55 must be read together, learned Counsel went on and said that it was always the constitutional responsibility of the National Assembly to pass a Bill. This cannot be delegated, nor could the National Assembly validly abdicate its responsibility thereto. There is no provision in the constitution, concluded Chief Williams on this point which authorises a Committee to pass a Bill into law. As s.4 of the Constitution vests the legislative powers in the National Assembly, to delegate its powers to a Committee would be an abdication of these powers-an unconstitutional act.

The Chief Williams referred to the various exhibits tendered in this case, and on a careful scrutiny of Exhibit 2 and Exhibit 4, he submitted that the members who attended the Allocation of Revenue Committee were not members of that Finance Committee. As a result of all these, learned Counsel submitted that the Allocation of Revenue (Federation Account etc.) Act 1981 is void.

I would at this stage, and before making reference to the various submissions of other learned Counsel, deal with the contention of Chief Williams that the members who attended the Allocation of Revenue Committee were not members of the Finance Committee. In this regard, I must say that I was impressed by submission of Chief Fani-Kayode on the point and perfectly convinced that the submission of Chief Williams in regard thereto is misconceived. I think a careful look at exhibits 2,3, and 9 will show clearly that the difference in the lists really lies in nomenclature and certainly not in the substance of the appointment of members to the Committee.

One cannot but repeat that it is not form, but substance that does affect the mind of this Court. In exhibit SC.5 which contains the minutes of the Joint conference on the allocation of Revenue, it is clear, per adventure, that the names of the people appointed by the House of Representatives in Exhibit SC.3, as members of the Revenue Allocation Committee, as distinct from those appointed to the Joint Finance Committee, were those in the list as being representatives of the House of Representatives sitting with the representatives of the Senate (also vide Ex. sc. 1. Chief Williams' contention on this point therefore cannot, with respect, be sustained. Indeed there is no irregularity in this regard.

But be that as it may, Chief Akinjide, on sections 54,55,58 of the Constitution, contended that while the Bill in question is a money Bill, and section 55 applies to it, and while section 58(3) which enables the Senate and the House of Representatives to appoint a joint committee on Finance should be read with section 55, section 58(4) should however not be read with section 55.

I find this submission difficult to accept. I cannot, with great respect, see any force in this argument of the learned Attorney-General. The provisions of the Constitution are, no doubt, to be read together, when one deals with a matter of construction of the Constitution. This is age long and has become elementary. The provisions are not meant to be put into compartments. To do this will defeat the whole purpose of the construction of the Constitution. Nor do I accept the further submission by the learned Attorney-General, either, that no money Bill will ever come under section 58(4). That subsection, to my mind, applies to all bills and it does not, and reasonably so, make a distinction between money bills and non-money bills. The word "such" in sub-section (4) of section 58 refers to the two Houses of the National Assembly and it is the two Houses that are prohibited from delegating to a committee whether a Bill shall be passed into law or not. It is to be noted that subsection (2) of s.54, has specifically provided that no Bill becomes law until it has been passed by both Houses.

Indeed, it is obvious to me that if the Constitution should make any distinction between a Bill that should be passed by the National Assembly and one that could be passed by a Committee of the Assembly, the Constitution would rather protect money Bills, which form the core of the legislation of the National Assembly and which bills prop the nation itself up, and make certain that money bills do not slip away from the minute scrutiny of the national Assembly. Apart from anything else, this accords with commonsense.

If there would be delegation at all of bills that could be passed by Committees of the Assembly therefore it could never be in regard to money bills.

In any event, there is nothing in our Contribution, nor have I been able to find in any of the constitutions governing any of the countries in world, where money bills are passed into law by Committees of the Legislature rather than the Legislature itself.

I agree absolutely with the submissions of Mr G.O.K. Ajayi, that a converse situation will only arise if the Constitution itself, directly and expressly confers the power to pass bills, into law, on a Committee of the Legislature.

With regard to the question whether or not the Committee is an arbitrator, Chief Fani-Kayode, in submitting that the committee is an arbitrator, made a distinction between committees which have been established under the Constitution, that is, the joint finance committee established pursuant to s. 58(3) and defined by section 55(5), and, what he referred to as the other committees under s.58(3), which are not of Constitutional creation but creation of each House of the National Assembly. In regard to the latter, the National Assembly, said learned Counsel, can delegate functions to the committees and it is in regard to this creation that section 58(1), (2) and (4) refer.

As regards the Committee created by the Constitution under subsection (3) of section 58, this is an arbitrator which should never fail, but in the event of failing, and its inability to resolve the differences between the two Houses, s.55(3) applies, and the Bill shall go before a joint sitting of the two Houses. Chief Fani-Kayode contended that as the differences between the two Houses have been resolved in this case there is nothing to go back to either House or the joint sitting of the two Houses as provided by section 55(3).

Chief Fani-Kayode however conceded that there is nothing in s.58(4) that authorises the joint finance committee to pass a bill or to legislate and he asked that the interpretation which should be placed on these provisions of the constitution be strictly on the facts of this case, which when examined, show that the Bill as resolved by the Joint Finance Committee is already law.

In any event, the joint committee did not legislate on this case, concluded learned Counsel. He then referred to the joint committee as a constitutional agent of the National Assembly for the completion or finalisation of their exercise of legislative process.

Chief Onyiuke, in making a distinction between money bills and non-money bills said that in a non-money bill, s.54(3) provides that agreement shall be reached between the two Houses on the amendment made to the Bill and the procedure for resolving the two differences is left to the two Houses. If both Houses fail to agree, the Bill lapses. As regards money bills, and having regard to its importance, there can be no question of lapse. They must be resolved to finality under s.55(3) by the joint sitting of both Houses but this is only in the event of the joint committee failing to resolve the differences, which learned Counsel said is not the case in this instance: According to learned Counsel also, a situation where the joint committee would fail to resolve differences between the two Houses must be rare. The intention of section 55 is the urgency for, and the need to resolve differences arising in money bills.

Now, before we go further with the construction to be placed on these vital provisions of the Constitution, to wit; ss.54, 55 and 58, it is necessary, in so far as this case is concerned to refer firstly to s. 149 of the Constitution which makes provision for the distributable pool account. (See also the judgment of the Chief Justice where this section is fully set out.)

It is this provision that enables-

1. The Federal Government to maintain a Federation Account.

2. The National Assembly to prescribe, as in the instant case, the terms and manner in which the amount standing to the Account shall be distributed among the Federal and State Governments and the local government councils in each State.

In other words, the first function of the National Assembly in pursuance of this provision is to prescribe the term and manner, or more precisely, the percentages which go to the Federal Government, the States and the local government councils respectively. This is what section 1 of the Allocation of Revenue (Federation Account, etc.) Act 1981 purports to do and also the constitutionality of which is being questioned in the instant case.

3. The National Assembly thereafter to prescribe the terms and the manner in which the percentage standing to the credit of the States shall be distributed among the States [In regard to the instant case, see section 2 of the Allocation of Revenue (Federation Accounts etc.) Act 1981].

4. The National Assembly jointly to prescribe the terms and manner in which the percentage standing to the credit of the local government councils shall be allocated to the States for the benefit of their local government councils.

5. The House of Assembly of each State to prescribe the terms and manner in which the amount allocated under subsection (4) of the section to the State shall be distributed among the local government councils.

To my mind, s. 149 of the Constitution is not to be interpreted as giving power, as such, to the National Assembly to infringe on the powers of the States under the Constitution.

And now, to go back to the interpretation to be placed on the provisions of sections 54, 55 and 58 of the Constitution. I think every bill, whether it is a money bill or a non-money bill, is governed by s. 54 of the Constitution. That is, every bill before it becomes law, has to be passed by both the House of Representatives and the Senate, exercising their legislative powers, and be assented to by the President exercising his executive power

which is within the legislative process. (subsections (1) and (2) refer). The only exception to this is if the President withholds his executive power on assent, then in that case, there is a distinction as to whether the Bill is a money bill or a non-money bill. If the bill is a non-money bill, subsection (5) of section 54 will apply and if the bill is passed by each House of the National Assembly by a majority of two thirds of the members of the Houses sitting severally then the bill becomes law; but where the bill is a money bill, it is s.55(4) that applies.

Subsections (3) and (4) of section 54 which talk about amendment applies to a non-money bill. In regard to money bills, s.55 contains specific provisions for the resolution of differences between the two Houses in regard to these bills. The section also deals with what would happen if the President fails to give his assent in the circumstance. It means therefore, that in addition to s.54(1) and (2), s.55 also applies to money bills.

As the Bill in this case is a money bill, it is subsections (1) and (2) of s.54, discussed (supra) and s.55 that would apply.

Where a money bill, which is passed by one House is passed by the other House without any amendment whatsoever, or where the money bill which has been submitted simultaneously to both Houses is passed by each House in the form in which it was submitted to the House, there is no problem. The bill has been passed in the terms of s.54(1) of the Constitution and, subject to assent by the President or s.55 (4) of the Constitution, it becomes law.

It is where there are differences between the two Houses in passing the Bill that problems may arise and that is what we are concerned with in this case. The question to ask next is-How could these differences arise? The most elementary form in which s.55(2) could arise is where a bill is passed in one House of the National Assembly but rejected in the other House. But that is not all. There are other complicated forms. They are-

1. A money bill may originate in either House of the National Assembly, and where it so originates, and it is passed by the House in which it originates, but when it gets to the other House it is passed with some amendments, then there are differences between the two Houses and the bill is "not passed by that other House" within the context of sub-section (2) of section 55.

2. A money bill may be presented simultaneously to the two Houses and while one passes it in the form in which it is presented, the other House may pass it with amendments. In that case the Bill is "not passed" by one House within the context of sub-section (2) of section 55.

3. Where a money bill is presented simultaneously to both Houses of the National Assembly and each House passes the bill with its own set of amendments, and the two sets are different from each other, then the Bill is "not passed" within the context of sub-section (2) of section 55.

To the question where does a bill originate? A bill may originate in either House of the National Assembly from the President's office or from a legislator, nevertheless a bill only originates in a House when the consideration of such a bill for passage into law commences in that House notwithstanding the origin of the bill.

In my view once a bill is altered by either of the two Houses in any form whatsoever from the form it is sent to that House, that the bill has not been passed within sub-section (2) of section 55.

The next question is, what happens when this type of situation arises and s. 55 (2) is invoked? Under the sub-section, if a money bill is not passed, as has been explained above, within two months of the commencement of the financial year, the President of the Senate shall arrange for, and convene a meeting of the joint finance committee which is established pursuant to s.55(3). The President of the Senate has fourteen days to do this and the duty is to try to resolve the differences between the two Houses.

There are equal number of persons from each House on the Committee but because the chairman of the Committee would have a casting vote, (for otherwise it might be impossible, ever to resolve the differences) the differences will usually be resolved one way or the other by majority vote.

The important question is what happens when by a majority, as in the instant case, the differences are resolved? Could it be said that the bill has at that stage been passed into law, subject to the assent of the President or should the Committee report back to the two Houses and the two Houses pass the bill, reflection the resolution of the Committee?

It is my view that there could be no question of delegation of legislative powers to the Committee. It is the National Assembly that is vested with the power to legislate and that power can never be usurped by a Committee of that Assembly. I agree that until the bill goes back to the two Houses and passed in the form resolved by the Committee or at least passed by the House in whose favour the differences have not been resolved, it is not yet law. There may be instances where the resolution of the Committee agrees with the form in which one of the Houses has passed the bill, in such a case, the bill to become law must be passed by the other House in the form now resolved by the Committee that is, in the form the first House has passed it.

The Bill in the instant case did not follow this Constitutional procedure and it is for these reasons and the reasons given in the judgment of the learned Chief Justice that I agree that the Allocation of Revenue (Federation Account, etc.) Act, 1981 is not an Act of the National Assembly and its entire provisions are void. The plaintiff's action succeeds in the terms specified in the judgment of the learned Chief Justice of Nigeria. I do not intend to go into whether or not parts of the purported Act are valid having declared the whole Act void. I abide by the order as to Costs made by the learned Chief Justice of Nigeria.

Nnamani, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Fatayi-Williams, Chief Justice of Nigeria. For the reasons given therein with which I entirely agree, I would also grant the Plaintiff the declarations and reliefs (except for 2(c) and 2(e)) which it seeks.

The constitutional significance of the issues canvassed before us compels me to add some comments. This suit was brought by originating summons by the Attorney-General of Bendel State on behalf of Bendel State against the Attorney-General of the Federation and 22 others praying for the determination of certain questions and claiming also for certain declarations and reliefs which questions, claims, declarations, and reliefs sought have been set down in the judgment of the learned Chief Justice referred to earlier. In the course of argument, Questions 1(b) and 1(c) thereof were not pursued.

I consider it convenient to dispose here and now, though briefly, the contention that jurisdiction could be challenged on the basis that there were defendants who agreed with the case of the plaintiff that the Act being challenged is invalid. Viewed from the point of view of the 1st, 20th, 21st, 22nd and 23rd Defendants, the position of the 5th, 7th, 9th, 10th, 12th, 14th, 15th and 16th Defendants was at the very least embarrassing as from all their arguments they might as well have been co-plaintiffs. However, I agree with the view expressed by Chief Williams, SAN, learned Counsel for the plaintiff that it was necessary to join the defendants he sued as persons who would be interested in the reliefs he seeks. As I shall show later in this judgment, jurisdiction would not be affected by the joinder of those defendants if there was a dispute between the Plaintiff and the 1st Defendant.

There are two preliminary issues that I would wish to touch on. The suit before this Court touches on a most sensitive aspect of our new Constitution. Revenue Allocation and matters connected therewith are sensitive and complex issues in any Federal system of Government such as we run in this country. In the course of the lengthy argument before us, varied and various interpretations have been given to sections of the Constitution of the Federal Republic of NIGERIA 1979 (hereinafter referred to as the "Constitution") relating to the powers of the Judiciary and the Legislature. It is in my view necessary that, as much as is possible, answers should be found for the question raised. Judicial prudence dictates the gradual or "go-slow" approach in the interpretation of Constitutions. That is an approach accepted by this Court in Adesanya v. The President of the Federal Republic of Nigeria & Anor. (1981) 5 S.C. 112 and by superior courts in other common law jurisdictions (See Euclid v. Amber Realty Co. (1926) 272 U.S. 365 47 S. Ct. 114 at 121; The State of Wyoming on the relation of Fire Fighters Local, etc. v. Herbert Kingham, etc. 420 Pacific Reporter 2nd Series 254 at 256-257 (1966). On the basis of all this, I would pronounce, it was urged, only on those points necessary for the decision in this suit. I would not declare the constitutionality or otherwise of the Act in issue here if there are other grounds on which a decision can be based. While restraint cannot be thrown to the winds, I am persuaded by the combined plea of Chief Williams, SAN, Chief Fani-Kayode, SAN, learned Counsel for the 20th and 21st Defendants and Chief Onyiuke, SAN, learned Counsel for the 22nd and 23rd Defendants that as much as is possible we should reach a decision on the many issues raised before us.

The other preliminary matter I would wish to touch is the enormous volume of legal authorities cited to us in this Suit-authorities from the United States, England, India and Australia. These authorities have no more than persuasive authority. While I do reiterate the view I had previously expressed that they are helpful while interpreting the provisions of our Constitution, it must be emphasised that in determining the meaning of those provisions it is to our own constitution that we must principally turn. Those authorities can in fact only be helpful if they relate to provisions in the Constitutions of the countries in which they were made similar to provisions in our own constitution. It is a fact that in relation to many of the more complex of the provisions of our constitution that had to be construed in the course of this suit, no similar provisions were available in the Constitutions of U.S.A. or Australia. If I recollect correctly, it was only in respect of India that a provision-Article 131-was found to be similar to Section 212 of our Constitution. As regards the Constitution of the United Kingdom, no parallels can be drawn between it and our Constitution. There is no written constitution and the Supremacy of the British Parliament ensures that no Court there would challenge the validity of a duly enrolled Act of Parliament. The provisions for dealing with money Bills under these Constitutions are different from the provisions of Sections 55(2) and 55(3) or 55(4) of our Constitution.

The Australian Constitution has no provisions similar to Sections 4(8), 54, 55(2) (3) and (4) and 58 of our Constitution. Section 57 of the Australian Constitution which deals with the resolution of disputes between the two Houses of parliament has no similarity to our own Sections 55 (2) and (3) and 54 (3). Also, Section 75 of the Australian Constitution which confers original jurisdiction on the High Court of Australia has no similarity to our own Section 212. That court has original jurisdiction in all matters

"(iii) in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party

(iv) Between States, or between residents of different States, or between a State and a resident of another State "

Even Section 96 of the Australian Constitution which provides for Parliament to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit is not only different in intendment from our own Section 149(3) but was a transitional provision. Besides, though Australia had a written constitution with a Parliament that is therefore not Supreme, its constitution is fundamentally different from ours. It contains many features usually associated with what are known as Westminster Model Constitutions-features which are to be found in the Constitution of the United Kingdom e.g. an Institutional Opposition, cabinet government, an Upper and Lower House of Parliament with distinct powers as against our National Assembly of two chambers with co-equal legislative power. Many of these features are of course the result of operation of conventions not express provisions in the Constitution.

Although the United States Constitution is closest to ours, ours bear many distinct features which are peculiar to it. While our constitution is contained in one document and covers the constitutions of all our constituent Units, the United States has a Constitution for the Central Government and separate ones for the States. Also nowhere in the American Federal Constitution can one find provisions similar to Sections 54 (1-4), 55 (2) (3) (4), 58, 4 (8), 212 of our Constitution (See Article (iii) Section 2 of the United States Constitution). I do agree with Chief Onyiuke that Article 1 Section 1 of the American Constitution is similar to Section 4 (1) of our Constitution but although Article 1 Section 5 deals with quorum, the provision is different in terms from our own Section 50. Article 1 Section 7 of the same United States Constitution deals with money bills but the first part of that article provides that all bills dealing with revenue shall originate in the House of Representatives. It is clear that under our Constitution all Bills including money bills can be raised in either House or simultaneously in both Houses of the National Assembly. The Second part of Article 1 Section 7 differs in some material particulars from a similar provision in Section 5(4) of our Constitution. It is rather closer to Section 54(5). It follows therefore that these authorities from U.S.A., Australia, India and England, would in my view have to be treated with due caution and examined very critically.

The facts relevant to this Suit are short and not controversial. They have been most adequately set down in the judgment of the learned Chief Justice and I do not intend to repeat them except in so far as I may use some in the course of my examination of the submissions made to us. I shall therefore proceed to deal with the main issues raised in those submissions.

The first of the main issues canvassed is jurisdiction. Learned leading Defence Counsels-Chief Akinjide S.A.N. learned Hon. Attorney-General of the Federation, Chief Fani-Kayode, Chief Onyiuke, and other counsel supporting them-all attacked the claim on this ground: but it was Chief Fani-Kayode who apart from contending lack of jurisdiction on the ground that the plaintiff cannot bring itself within the requirements of Section 212 of the Constitution, challenged in the suit in greater details on the grounds of procedural irregularities. He argued that the Suit was misconceived as against the Rules of this Court. He complained that the evidence filed by the plaintiff in support of the originating Summons was insufficient (i.e. the Affidavit of Mr Obasuyi the learned Attorney-General of Bendel State)
He contended that pursuant to Civil Form 9 made under Order 5, rule 5 of the Supreme Court Rules, 1977, the Plaintiff should have stated the nature of its interest on the face of the claim. He also argued that the plaintiff cannot be brought within Order 5, rule 2 of the same Rules. Order 5, rule 2 provides:

"Any person claiming any legal or equitable rights in a case where the determination of the question whether he is entitled to the right depends on the construction of the Constitution of the Federation or of a State may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed"

Chief Williams, learned Counsel for the plaintiff in his reply on this point in substance submitted that the answer to all these procedural objections lay in Order 2, rule 1 of the Rules of the Supreme Court in England (See Supreme Court Practice, 1979 Vol 1) to the effect that the defendants entered unconditional appearance to the suit and have not protested by way of motion. Recourse could be made to the Rules of practice in England by virtue of the provisions of Order 2, rule 1 of the Supreme Court Rules, 1977 and Section 9 of the Act No. 13 of 1973.

It seems to me that whether the plaintiff can properly be brought within Order 5, rule 2 of the Supreme Court Rules, 1977, will depend on what view one forms on the question of whether the plaintiff has a legal interest or a legal right which is injured or threatened to enable it institute this Suit. I do agree that the wording of Civil Form 9 is quite clear but I think that Claim 2(d) read together with claim (f) at least indicate some measure of the interest of the plaintiff. As regards the insufficiency of the affidavit accompanying the originating summons, it was conceded that we could look at all the materials before us including the affidavits dated 15-5-81 filed by the Attorney-General of Lagos State. The rest of the evidence are proceedings of the National Assembly the admissibility of which I shall deal with later in this judgment. In any case, I am inclined to agree with Chief Williams that on these objections on procedure the central issue is whether the plaintiff is entitled to be heard by this Court. That can of course in the instant case be decided after considering the more substantial objection as regards Section 212 of the Constitution. If the plaintiff is entitled to be heard by this Court how he comes to be heard may be immaterial. I do not agree that in a complex suit such as this touching on matters which lie at the very foundations of the stability of this country this Court should be unduly bogged down by technicalities. This Court has in many recent decisions, while affirming the importance of observance of rules of Court, stated that it is more concerned with doing substantial justice between the parties (See Nofiu Surakatu v. Nigeria Housing Development Society Ltd. and Anor. (1981) 4. S.C. 26). The objections on this point by Chief Fani-Kayode appear to me belated. The defendants entered unconditional appearances and have taken full part in the proceedings tendering many documents themselves which documents were accepted as exhibits. Also no injustice has in my view been done to any defendant in the course of hearing of this Suit.

Order 2, rules 1 and 3 of the Rules of the Supreme Court of England 1965 (see Supreme Court Practice, 1979 Vol. 1) provide as follows:-

"1 (i) Where in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed."

If the defendants, particularly the 20th and 21st Defendants, wanted to found on this alleged non-compliance with Order 5, rule 2 of the Supreme Court Rules, they should have come to Court with a motion at the earliest time to strike out the suit. This motion should have been filed by the 20th and 21st Defendants before entering appearance once they were satisfied that there were irregularities in the manner of commencement of the proceedings. (See Johnson v. Aderemi 13 W.A.C.A. 297 at p. 298 and Adejumo v. Governor of Lagos State (1970) 1 All N.L.R. 183, 185. See also Order 2, rule 2 of the Supreme Court Practice in England, 1965).

The defendants, as in the instant case, having become aware of the irregularity, ought to have taken whatever steps they wished to take within a reasonable time. If after having thus become aware of the irregularity they take fresh steps such as entering an unconditional appearance they are deemed to have waived the irregularity. (See Tozier v. Hawkins (1885) 15 Q.B.D. 650 and Western National Bank etc. v. Perez (1891) 1 Q.B.D. 304 at 313 C.A. Steps taken with knowledge of an irregularity with a view to defending the case on the merits, as in fact happened in this Suit, will waive irregularities in the institution of the proceedings since they could only have been taken on the assumption that the proceedings were valid. See Boyle v. Sacker (1888) 39 C.H.D. 249 C.A.

The more substantial objection is that against jurisdiction on the ground that the plaintiff cannot bring itself within the conditions in Section 212 of the Constitution. Section 212 (1) of the Constitution provides as follows:-

It is clear from the wording of this provision that the jurisdiction which it confers on the Supreme Court is limited indeed. There has to be a dispute between the Federation and a State or between States. The dispute must involve a question on which the existence or extent of a legal right depends. A State can only invoke the jurisdiction of this Court if it can show that there is a real dispute between it and the Federation or another State and that the question involved in the dispute touches on the existence or extent of its legal right or interest. In other words that State must as part of this dispute have legal interests or rights which are injured or threatened. (See New South Wales v. Commonwealth (1931) 46 C.L.R. 155.; At.-General for Victoria v. Commonwealth of Massachusetts v. Mellon, Secretary of the Treasury, etc. 262 U.S. Vol. 43 Supreme Court Reporter 597. (though in respect of individual rights). A party invoking the power of the Court with respect to an unconstitutional statute must show, not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury from its enforcement and not merely that he suffers in some indefinite way in common with the public generally.

In my view each case ought to be decided on its particular facts and circumstances and after the Court has been seised with all the arguments as in the instant case. Looking more closely at this jurisdiction (i.e. under section 212 of the Constitution) it must be stated that the mere fact that there is non-compliance with the constitutional requirements of law making does not by itself entitle a State to come to court and impeach or challenge its validity or will not entitle it to invoke the jurisdiction of the Court. Though I shall deal later with Section 4 (8) of the Constitution it is in that sense that I agree with Chief Onyiuke that Section 4 (8) of the Constitution by itself cannot be the basis of jurisdiction for this Court in this Suit. It is also clear that if the conditions in Section 212 of the Constitution are not satisfied the jurisdiction will not be invoked simply because there is no other court in the land to which the plaintiff can have recourse. (See Basu's Commentaries on the Constitution of India Vol. 3 5th Edition pp. 94-102). What then is a dispute in the circumstances of this case? The concise Oxford Dictionary defines dispute as controversy, debate, being argued about, heated contention. The Shorter Oxford English Dictionary 3rd Edition defines it as "The act of arguing against, controversy, debate. An argumentative contention, a difference of opinion; a heated contention." "A controversy" in the constitutional sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot (United States v. Alaska S.S. Co. 253 U.S. 113, 116; 40 S. Ct. 448, 449; 64 L.Ed. 808). "The controversy must be definite and concrete, touching on the legal relations of parties having adverse legal interests." AETNA Life Ins. Co. of Hartford CONN v. HAWORTH 300 U.S. 57 S.Ct. 461 at p. 464.

Unless one wants to give the term dispute a most restrictive interpretation, there is in the present suit a heated contention as to the constitutionality of the Revenue Allocation (Federation Account), etc. Act 1981. While the 1st Defendant (and so the Federal Government) argues that the Act was validly passed the differences between the two Houses of the national Assembly having been resolved by the Joint Conference Committee on Revenue Allocation in accordance with Section 55 (2) of the Constitution, the Plaintiff argues that the Act is unconstitutional, null and void as having not been passed in accordance with the procedure laid down in the Constitution. This contention is not an abstract one nor it is academic or a moot point. It relates to a matter in which the respective legal interests of the parties (i.e. The Federation and a State) are concerned. If such a contention cannot qualify as a dispute for purposes of Section 212 then perhaps the only matter which can so qualify without question would be a dispute as to the constitutionality of an Act of the National Assembly which deals with a subject which is neither in the exclusive nor concurrent legislative lists and is properly within the matters reserved to the States. I do not think that the framers of the Constitution intended to give the word "dispute" such a narrow compass. I hold therefore that there is a dispute within the meaning of Section 212 of the Constitution between the 1st Defendant and the Plaintiff for purposes of investing this Court with jurisdiction.

As regards the issue of legal interest I have already stated that the Plaintiff would not bring itself with Section 212 if it merely complains that the Act concerned is unconstitutional. It must have a legal interest which is injured or threatened. It was argued for the 1st, 20th-23rd defendants that no legal interests or rights of the plaintiff are injured; that the situation would have been different if the Plaintiff could show that it was in danger of receiving less allocation of Revenue from the "Federation Account" than it was receiving under the old (or pre 1981) formula for distribution of Revenue. I do not think myself that the quantum of revenue being received by the Plaintiff is really relevant to this point. Full cognisance has to be taken of Section 272 of the Constitution. It was this Section, I would imagine, that provided the formula for distribution referred to in the Counter Affidavit of Plaintiff's Mr Okotie in reply to that of Dr Obozuwa. It was conceded in the course of argument that the formula being used under Section 272 of the Constitution before the Act in issue in this Suit vests a legal right in the Plaintiff. Can it then be argued that the plaintiff would have no legal right to insist that a law which would now determine the new formula of distribution, and which would extinguish whatever right it had in the old formula, should be a law passed in accordance with the provisions of the Constitution? The Plaintiff contends, and I think quite rightly, that it should be able to sue if the Federation were to say that there is no more revenue payable to it (Bendel) this year. It further argued that it wishes that what it gets as its share of revenue should be due to it as of right and not as a matter of grace. I think the plaintiff has a legal interest in ensuring that it is entitled to a share in accordance with a law enacted as provided in the Constitution. Looking at Section 149 of the Constitution from this angle of legal interest, one is bound to come to the same conclusion. It was conceded in argument that Section 149 (1) (which enjoins the Federation to maintain a "Federation Account") and 149 (2) which stipulates that the amount standing in the "Federation Account" shall be distributed among the Federal and State governments) vest some legal rights in the States including the plaintiff. Section 149 (3), however, it was argued did not vest any such rights because of the wide powers therein vested in the National Assembly. Section 149 (3) provides as follows:-

"(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly" (Italic is mine).

Reference was made to Section 96 of the Australian Constitution (which used slightly similar terms) and to the case of Deputy Commissioner of Income Tax of New South Wales v. W.R. Moran Proprietary Ltd. 1938-39 Vol. 61 C.L.R. 735.

These are wide powers indeed that the National Assembly has been given. I think, however, that what may not properly be challenged since it falls within the political power of the National Assembly under Section 149 (3) are the manner and the terms in which it makes the distribution. Complaint as to the manner or terms of distribution may well be a political one. But the provisions of the Constitution have to be areas as a whole, and I am of the view that this does not exempt the National Assembly from complying with the procedure for the passing of bills. That law which will prescribe the distribution on such terms etc. as the Assembly thinks fit must be in accord, in the context of this case, with the procedures laid down in Sections 54, 55 and 58 of the Constitution.

In the course of argument on this point our attention was drawn to the case of Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All N.L.R. 224. Briefly, in this case the Government of Eastern Nigeria had challenged the population figures obtained after the 1963 Census in Nigeria on the ground that they were inflated and that there were irregularities. It contended that acceptance of the figures could affect the demarcation of Constituencies under s. 43 and also the making of the money grants under s. 141 of the Constitution of the Federation, No. 20 of 1963, and that these would prejudice the legal rights of Eastern Nigeria. The suit turned on whether the "legal rights" of Eastern Nigeria were adversely affected having regard to the meaning of legal rights contained in Section 114(1) of the Constitution of the Federation, 1963 (which is in pari materia with Section 212 of the Constitution of the Federal Republic of Nigeria 1979 discussed earlier in this judgment). This Court, on a motion by the defendants, dismissed the suit on the grounds that the Statement of Claim disclosed no cause of action and that the Court had no jurisdiction. It held that no legal rights of Eastern Nigeria were prejudiced or threatened. On the demarcation of constituencies it was of the opinion that there were no legal rights under the 1963 Constitution vested in any of the Regions to have any number of Constituencies for purposes of election to the House of Representatives, Brett, J.S.C. who delivered the judgment of the Court said at page 231 that-

"even if it is true that acceptance of incorrect census figures by the responsible authority and by both Houses of Parliament would mean that fewer members would be elected to the House of Representatives by constituencies in any of the territories than would be if correct figures were adopted, we cannot hold that any legal rights vested in the territory as such would be affected"

On the issue of money grants to the Regions, the Court held; that no legal rights were affected as indeed the plaintiff therein stated that there was no intention to interfere with Parliament's discretion to make grants under Section 73 of the 1963 Constitution (this refers to the allocations made from the Distributable Pool Account). The allocations to the Regions were fixed by Section 141 of the 1963 Constitution. The Section could only be altered by a vote of 2/3 of the members of each House of Parliament and the consent of each legislative house of at least three Regions.

It seems to me that with regard to the demarcation of constituencies the Court was rather too restrictive in its interpretation of legal rights. While it is true that unlike Section 42 of the 1963 Constitution where the rights of territories are safeguarded and provision made for a certain number of Senators, there was no express provision in that Constitution vesting any legal rights to any number of constituencies in the House of Representatives on the territories, the number of constituencies in each Region could be affected by the new census figures having regard to subsections 6 and 7 of Section 51 of the 1963 Constitution. In any case, it is the second arm of that decision which is more relevant to this suit as it involved the Distribution of Revenue. In that regard I think that this case can be quite easily distinguished. As already indicated, there was no threat to the fixed allocations to the Regions as provided by Section 141 of the Constitution of the Federation, 1963. Any alteration (following the new census figures) would have required the special procedure provided by section 4(1) of the Constitution of the Federation, 1963 as referred to above. No Bill was then pending in Parliament threatening any such alteration. In the instant case on the contrary, we are concerned with the constitutionality of an Act of the National Assembly which seeks to provide for the Distribution of Revenue from the Federation Account and which the plaintiff complains has prejudiced its legal rights.

While dealing with jurisdiction Chief Williams, relied on Sections 4 (8), 6, and 212 of the Constitution. I have already made my point that Section 4 (8) by itself cannot be the basis of jurisdiction in this Suit. Section 4 (8) provides as follows:

"Save as otherwise provided by this Constitution the exercise of legislative power by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law: and accordingly the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law."

It was contended before us by Chief Onyiuke and Chief Fani-Kayode that Section 4 (8) was nothing more than a recapitulation of the ultra vires doctrine. It was intended to apply in cases relating to non-compliance with statutory requirements as to legislative procedure i.e. procedural ultra vires and with cases relating to actual conflict with provisions of the Constitution i.e. substantive Ultra vires. It was further argued that Section 4 (8) adds nothing new. That in a written Constitution with separation of powers there was an inherent power in the Courts to interpret the Constitution (See Marbury v. Madison 1 Cranch 137, 5 U.S. 137 where Marshall C.J. had declared that "It is emphatically the province and duty of the judicial department to say what the law is" (See also Oregon v. Mitchell 400 U.S. 260 at 304.) Finally, it was argued that against the background of the ousting of the jurisdiction of the Courts during the military regime, the section was the framers effort to ensure that such practice did not occur in the future. This view it was urged is supported by the fact that the second part of Section 4 (8) actually ends with the words-"and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law." This is indeed an attractive argument but I am not persuaded to accept this as the only or main intendment of Section 4 (8). The Constitution did provide in certain circumstances for the ouster of the jurisdiction of the Courts (See Section 170 (10). I think that the powers conferred on the Courts by Section 4 (8) are wider than the inherent powers to interpret the Constitution admittedly vested in the Courts in a Constitutional system such as ours. The express provision of the power vested in the courts and the mandatory nature of it indicate to my mind, an intention on the part of the framers of the Constitution that the Courts should have this power to scrutinise the exercise of legislative power by the National Assembly. The inherent power to interpret is provided in Section 6(6)(a) and the Ultra Vires doctrine could be applied in respect of any law which violated Section 4 (2) and (3) but yet the Constitution stipulated Section 4 (8). It seems to me to be the one of the many checks and balances contained in our constitution. It is also unique among written constitutions, and certainly is neither in the Constitution of the United States, nor in that of Australia nor in that of India. It means that this court has power (in a proper case i.e. where 6(6)(b) or 212 apply) to examine the exercise of legislative power by the National Assembly (which involves the process of law making) and if it falls short of the provisions of the constitution to declare such law unconstitutional. This Court therefore has power to inquire into the validity of the exercise of legislative power. In making the inquiry the Court is guided by the principle that Parliament in a written constitution which has spelt out the limits of its power cannot go outside those limits in the exercise of that legislative power. Such Parliament cannot go contrary to the Constitution which has set down the conditions under which it will make laws. So it is with our National Assembly. It cannot ignore the conditions of law making that are imposed by the instrument i.e. the Constitution which itself regulates its authority or power to make law (See Bribery Commissioner v. Ranasinghe (1965) A.C. 172. In that case the Judicial Committee of the Privy Council, affirming the orders of the Supreme Court of Ceylon, set aside the orders made against Ranasinghe the persons constituting the Bribery Tribunal which tried him having not been validly appointed. It is pertinent to add that it was argued for the Bribery Commissioner that the offending Act i.e. the Bribery Amendment Act, 1958, having received the Royal Assent, the courts in Ceylon cannot inquire into procedural questions affecting its progress prior to its presentation for receiving the Royal Assent. (See Harris v. Minister of the Interior (1952) 25 A.L.R. 428, 469). This argument was rejected by the Courts. Lord Pearce, at p. 194, said-

I would add here that if the Courts in Ceylon under the relevant constitution could take this posture I cannot see how any argument can arise about the power of this court to inquire into the exercise of legislative power by the National Assembly. To the best of my knowledge there was no provision similar to Section 4 (8) of our Constitution in the 1946 Constitution of Ceylon. In Section 120 of the Constitution of the Democratic Socialist Republic of Sri-Lanka (formerly Ceylon) the Supreme Court is given sole and exclusive jurisdiction to determine any questions as to whether any Bill or any provision thereof is consistent with the Constitution. But unlike Section 4 (8) of our Constitution, Section 124 of the same Constitution or Sri-Lanka provides, subject to Section 120, that no court or tribunal created and established for the administration of justice or other institution, person, or body of persons, shall in relation to any Bill have power or jurisdiction to inquire into, or pronounce upon, the constitutionality of such Bill or its due compliance with the legislative process on any ground whatsoever. The same principle as enunciated in the Ranasinghe case had earlier been upheld in the Privy Council case of Attorney-General for New South Wales v. Trethowan and others (1932) A.C. 526. There the question before the High Court of Australia, which was also the issue raised before the Judicial Committee of the Privy Council, was "whether the Parliament of New South Wales has power to abolish the Legislative Council of the State, or to alter its constitution or powers, or to repeal Section 7 of the Constitution Act 1902 except in the manner provided by the said Section 7A." As Lord Sankey, Lord Chancellor, delivering the judgment of the Board said at p. 539.

"The powers are granted sub modo. Reading the section as a whole it gives to the legislature of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by an Act still on the statute Book."

Section 4(8) of our Constitution gives the courts power to inquire into the exercise of legislative power and to take appropriate action if legislation has not been passed in accordance with the provisions of the Constitution. Any law which seeks to preclude this inquiry is contrary to the provisions of the Constitution and must therefore be null and void. Section 1 subsection 3 of the Constitution specifically provides that "if any other law is inconsistent with the provisions of this Constitution, this Constitutional shall prevail and that other law shall to the extent of the inconsistency be void." It is in this context that one must examine the Acts Authentication Act, No. 50 of 1961 which was cited to us. Chief Akinjide, learned Attorney-General of the Federation and Chief Onyiuke, who developed this part of their submissions, referred us to Sections 2, 3 and 6 of Act No. 50 of 1961. Section 2 provides:

"(1) that the Clerk of the Parliaments shall after enactment prepare a copy of each Bill as passed by both Houses of parliament or by the House of Representatives as the case may be, embodying all amendments agreed to and shall endorse on the Bill, and sign a certificate that the copy has been prepared as prescribed by this section and is a true copy of that Bill.

(2) The Clerk of the Parliaments shall as from time to time directed by the Speaker of the House of Representatives prepare a schedule of Bills passed at any time during a session and intended to be presented for assent; and shall certify on the schedule that it is a true and correct record and a summary of its contents and the respective dates on which each Bill passed each House of Parliament; and subject to the provisions of this section when signed by the Clerk of the Parliaments the certificate shall be conclusive for all purposes"

Section 3 of the same Act provides

(2) A duplicate of the schedule when passed and signed shall be returned to the Clerk of the Parliaments who shall cause a copy to be published in the Gazette; containing the schedule as published shall be conclusive evidence for all purposes" (italics mine)

The Acts Authentication Act, 1961, is an existing law within the meaning of Section 274 of the Constitution of the Federal Republic of Nigeria. Federal Gazette No. 6 Volume 68 of 3rd February, 1981, bearing in its Schedule the Revenue Allocation (Federation Account, etc.) Act 1981, Act No. 1 of 1981, was tendered in Evidence as Exhibit S.C. 11. Also tendered was a Certificate of the Clerk of the National Assembly in accordance with Section 2(2) of the Authentication Act. It was received in evidence as Exhibit S.C. 6. It was contended that the production of this Gazette and the Certificate of the Clerk of the National Assembly was conclusive for all purposes. It means that there could be no looking behind or beyond those documents to question the validity of the Revenue Allocation Act. In my view the real effect of Sections 2 (2) and 3 (2) of the Authentication Act is to preclude the inquiry into the exercise of legislative power provided under Section 4 (8) of the Constitution. These provisions are inconsistent with a provision of the Constitution which must prevail. I am therefore in total agreement with Mr Ajayi S.A.N. that those subsection in so far as they seek to preclude the inquiry under Section 4 (8) of the Constitution are null and void. For the avoidance of doubt, this refers to those parts of those two subsections i.e. 2 (2) and 3 (2) which make the certificate of the Clerk of the National Assembly or the Gazette conclusive for all purposes. Part of the Authentication Act is null and void for another though related reason. Act No. 50 of 1961 was promulgated at a time when we in this country were operating a Westminster Model Constitution the characteristics of which had been stated earlier in this judgment. Though ours was a written Constitution with supremacy lying with the Constitution rather than Parliament, it must have been inspired by the theory of the Supremacy of Parliament which is one of the tenets of parliamentary democracy enshrined in the Westminster model. The promulgation of the Authentication Act was no doubt inspired by the notion of the dominance of Parliament. That notion is totally alien to our new Republican Presidential constitution with its emphasis on separation of powers and checks and balances.

The other main issue argued before us was the question of the materials admissible for purposes of determining the validity or otherwise of the Act in question. If I may, I shall briefly state the submissions of leading counsel on this point. Chief Williams submitted that where evidence of the course of proceedings in the legislature is essential to decide the grounds on which the enactment is challenged the court will take judicial notice of the relevant evidence from any reliable source open to it. He submitted that the Court is entitled to go outside the record and look at proceedings of the National Assembly. He referred to Sections 73 and 112 of the Evidence Act, Cap. 62. His submission was that all the proceedings of both Houses attached to the counter affidavit sworn to by the Attorney-General of Lagos State should be available to the Court. Indeed, it was his contention that all the documents tendered in the case should be materials to which we could have recourse. Many of these materials particularly the votes and proceedings of both Houses and the National Assembly were available to the public and it would be strange he thought that they should be excluded form us. Exhibits S.C. 1 to S.C. 5, S.C. 7, 8, 9, 10 and 12 and 13 were admitted in evidence and they included proceedings of both Houses of the National Assembly as well as those of the Joint Committee. Supporting Chief Williams, Mr Ajayi, S.A.N., learned Counsel for 5th, 7th, 10th, 12th, 14th and 15th Defendants had submitted that all such documents as are admissible under our laws of Evidence and other laws of the land are available for purposes of the enquiry which the Court is to make. On the other hand, Chief Akinjide, in substance submitted that this court cannot use the proceedings of the Senate or the House of Representatives whether at Committee Stage in attacking the validity of the Act in question. The submission would affect all the exhibits tendered except the Certificate of the Clerk of the Assembly Exh. S.C.6. It was submitted that in the United States both at the Centre and in the States the Courts could look at the journals of the Houses i.e. the proceedings but would not use them to impugn the validity of an Act. It was however conceded that even in the United States the practice varied from state to state, the State of Illinois being a notable exception from the general principle stated above. It was also contended by way of analogy that in Australia proceedings of Parliament are not used in impeaching the validity of an Act. For this proposition reliance was placed on the case of South Australia and Anor. v. Commonwealth and Anor. (1941) 65 C.L.R. 373, 375. It was further argued that if the practice of looking at legislative journals and using them to impeach the validity of enrolled Acts is encouraged it would give the Courts unprecedented power. It was argued that there is nothing in our Constitution enjoining the National Assembly to keep journals and so the Constitution of the State of Illinois and cases on the point are irrelevant. He said that we do not have legislative journals here but debates which would not be used in America. The keeping of legislative journals is, unlike in our own constitution, put on a high pedestal in America (see Act 1, Section 5 of the Constitution of the United States). Yet, at least in the Supreme Court of the U.S., recourse is not made to those journals if the question is the validity of an enrolled bill. It was contended that what is in the legislative journal is for informing the public of what is happening in the House and not for purposes of impugning the validity of an enrolled Act. Legislative journals it was argued are often unreliable. They were prepared out of loose and hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly. Reliance was placed on several authorities including Field v. Clark (1892) 143 U.S. 649, 12 Supreme Court Reporter 495; Harwood v. Wentworth 162 U.S. 547; State, etc. v. Governor Schricher, etc. (1949) 228 IND p. 41; After reviewing these arguments and authorities, I am not persuaded that this Court should not have recourse to the legislative proceedings of the National Assembly in its enquiry to determine the validity of the Statute in question. Unless it had recourse to such materials which are materials readily available to every member of the public. I do not see how the Court can discharge the constitutional duty placed on it by Section 4 (8) of the Constitution. Section 73 of the Evidence Act, Cap 62 Laws of the Federation, 1958, provides that

"(1) The Court shall take judicial notice of the following facts ....

(c) the course of proceedings of Parliament and of the Federal Legislative House of Nigeria."

The same Act in Section 112 (b) provides that the proceedings of the Legislative Council or of the House of Representatives can be proved by the minutes of that body or by published ordinances or abstracts or by copies purporting to be printed by order of Government. The printed copies of the proceedings of the National Assembly tendered in evidence and accepted as exhibits have not been challenged as forgeries or as being inaccurate.

For the proposition that one does not go behind an enrolled Bill and that no recourse is made to the legislative journal while determining the validity of an Act so much reliance was placed on the case of Field and Clerk supra. I had earlier referred to the caution with which cases from other common law jurisdiction had to be accepted particularly when the provisions of the Constitutions being construed are not exactly similar to ours. In any case a closer look at the case of Field and Clark would reveal that it does not really cover the situation in issue here-i.e. whether recourse should be had to legislative proceedings when deciding on the validity of legislation. The decision of the Supreme Court of the U.S. in that case was to the effect that when a duly enrolled bill signed by the Speaker of the House of Representatives, the president of the Senate, and the President of the United States is placed in the custody of the Secretary of State, its authentication as a law of the United States is complete and no reference can be had to the journal of either House, to the reports of Committees, or to any other documents printed by authority of Congress for the purposes of showing that a section of the bill, as it finally passed, does not appear in the act as thus authenticated (underlining mine). What was in issue was the validity of the Tariff Act 1800 and Article 1 (7) of the U.S. Constitution. It was contended, among other things, that though the Act appeared on its face to have become law in the mode prescribed by the Constitution, it was a nullity because it was shown by the congressional records that a section of the bill as it finally passed was not in the Bill authenticated. The opponents of the Act relied on Article 1 Section 5 which enjoins Congress to keep a journal of its proceedings. The Supreme Court of the United States refused to have any recourse to the legislative journal of Congress. There is no doubt that the opinions of that Court were decidedly against looking at the journals, but it seems to me that it must be pointed out that the case was concerned with a situation where it was being contended that a section of the Act was not in the Bill that passed Congress. It really was not concerned, as we are here, with the question whether the Act concerned was valid as having been passed in accordance with the provisions of the Constitution. Besides, apart from the need for caution referred to above, the practice in the United States on the non-use of legislative journals is not uniform. The States of Iowa, Maryland and Illinois say that the Court can use legislative journals. Article (iii) of the Constitution of the State of Illinois 1848 provides as follows:-

"Section 1.The legislative authority of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives both to be elected by the people. Section 2 ... Each House shall keep a journal of its proceedings and publish them. Section 21 ... On the final passage of all bills, the vote shall be by ayes and nose, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members elect in each House."

In construing these constitutional provisions, the Supreme Court of Illinois by a long line of decisions held that it is necessary to the validity of a statute that it should appear by the legislative journals that it was duly passed in the manner required by the Constitution. This constitution was upheld by the Supreme Court of the United States in the case of Town of South Ottawa v. Noah C. Perkins 94 U.S. Ct. Reports, 24 Lawyers Edition 154. The Court through the judgment of Justice Bradley quoted with approval a passage in Gardner v. Collector 6 Wall. 511 18 L. od 894 to the effect that:

"Whenever a question arises in a court of law of the existence of a statute or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such questions; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule."

On this part of the case it remains for me to comment on South Australia v. Commonwealth (supra) another case on which much reliance was placed.

The case was concerned with the validity of the Australian Income Tax Act 1942 and the States Grants (Income Tax Reimbursement) Act 1942 some States having claimed that they (the Acts) were outside the powers of the Commonwealth of Australia Government. The High Court of Australia in holding that they were valid, decided that evidence of speeches made in Parliament or of the report of a Committee on which legislation is based, adduced to show the purpose or intention of Parliament or the existence of a "scheme" of legislation is irrelevant to the determination of the validity of legislation and inadmissible.

It seems to me that notwithstanding some passages in the judgment of Latham C.J., the main thrust of the judgment was that such materials as speeches in Parliament were inadmissible for purposes of determining the object of the legislation, or the legislative scheme or the intention of Parliament. That is different from the problem which this court is to deal with in the instant suit which is what materials or evidence or admissible for determining the validity of legislation or what evidence is admissible for determining whether legislation has been enacted in accordance with the provisions of the Constitution.

As stated earlier in this judgment, the facts in this suit are not in dispute. The main question for determination was this-whether where the Senate and the House of Representatives pass a money bill with different amendments, and they jointly appoint a Committee to resolve the differences between them, the resultant Bill can go directly to the President of the Federal Republic of Nigeria for assent without first going for the Resolution of each House of the National Assembly? The determination of this question involves the interpretation of Sections 54, 55 and 58 of the Constitution:

First of all it is necessary to decide whether the Bill in question is a money bill or not. With the exception of Mr Ajayi, it was agreed by all parties that it is a money Bill. I would myself say that it is a money bill and that it accordingly falls under Section 55 (1) (a) of the Constitution. The relevant portion is as follows:-

" any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund of the Federation of any money charged thereon

Any other public fund of the Federation would include the "Federation Account" set up under Section 149 of the Constitution. A Bill which deals with withdrawal from this Federation Account must be a money bill. This therefore is a Bill to which Section 55 of the Constitution applies. As to the submission of Mr Ajayi that the Bill is not a money bill and that Section 54 would apply, I would only say that if it was possible to be persuaded to this view it would have simplified the problem. With Section 55 (2) excluded it would have been easy to hold that Sections 54 and 58 particularly Sections 54, 58 (3) and (4) applied and that the Bill had to be sent back to both Houses of the Assembly at the end of the work of the Joint Conference Committee on Revenue Allocation.

It may be necessary before dealing with Sections 55 and 58 of the Constitution to set down certain papers of Sections 54 and 58 over which there is no controversy. Legislative power of the Republic is vested in the National Assembly by virtue of Section 4 (1) of the Constitution. Section 54 sets out the mode of exercise of this legislative power. Section 54 (1) states that "the power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and except as otherwise provided by subsection (5) of this Section (i.e. the provision for a bill to become law if the President withholds assent and the same bill is subsequently passed by a ?majority of each House of the Assembly, assented to by the President." It is clear that this section applies to all bills money and non-money alike: the bill must pass through both Houses of the National Assembly and then receive the Presidential Assent as the culmination of the legislative process. Section 54 (2) which stipulates that a Bill may originate in either the Senate of the House of Representatives provides for the same process except for the special provisions made in Sections 54(5) and 55(4) where the President has withheld assent. Section 55 of the Constitution deals specifically with money Bills. It makes provision for certain procedures but does not exclude the wider provisions for the exercise of legislative power contained in Section 54. I think therefore that for purposes of determining the question posed in this Suit Sections 54 and 55 of the Constitution must be read together. It is also not in controversy that all the Committees of the National Assembly are appointed under Section 58 of the Constitution. As regards committees of either house section 58 (1) applies. As regards Joint Committees of both Houses, Section 58 (3) provides that "The Senate and the House of Representatives shall appoint a joint committee on finance consisting of an equal number of persons appointed by each House and may appoint any other Joint Committee, under the provisions of this section." It was pursuant to the first part of subsection 3 that the 12 members of the House of Representatives and 12 members of the Senate who sat on the Joint Conference Committee on Revenue Allocation were appointed. Coming to the issues in contest Section 55 (2) of the Constitution provides as follows:-

"where a Bill to which this section applies is passed by one of the Houses of the National Assembly but is not passed by the other House within a period of 2 months from the commencement of a financial year, the President of the Senate shall within 14 days thereafter arrange for and convene a meeting of the joint finance committee to examine the bill with a view to resolving the differences between the 2 Houses"

Section 55 (5) defines the Joint Finance Committee mentioned in Subsection 2 as the Joint Committee of the National Assembly on Finance established pursuant to Section 58 (3) of the Constitution.

It may be necessary to remind oneself of part of the salient facts herein. The Bill in question was passed with different amendments by each House of the National Assembly. A joint Conference Committee on Revenue. Allocation comprising 24 members of the National Assembly appointed in accordance with Section 58 (3) of the Constitution met and on the 29th January, 1981 by majority vote of 13 to 11, agreed to the amendments to the Bill made by the Senate. The Bill did not return to either House of the National Assembly but went directly to the President of the Federal Republic of Nigeria who assented to it on 3rd February, 1981. See Exhibit S.C.6.

Was this a valid exercise of the legislative power vested in the National Assembly? Chief Williams, supported by Mr Ajayi, says that it is not. Apart from complaining that the Joint Conference Committee was not the Joint Finance Committee which ought to deal with the Bill under Section 55 (2) (a matter I shall deal with below) he argued that the Committee charged under Section 55 (2) with the duty of examining the bill "with a view of resolving the difference between the 2 Houses" had no power to pass the Bill finally into law. The Committee was no more than a conciliator or a mediator. More substantially, he argued that no Committee could pass a bill into law. The National Assembly could not delegate its power to pass a bill into law to a Committee and referred to Section 58 (4) of the Constitution. If the Committee could pass the Bill into law it would be contrary to Section 54 (1) and (2) of the Constitution. The Committee, he said was to do no more than make recommendations to both Houses of the National Assembly.

For the defendants Chief Akinjide, Chief Fani Kayode, Chief Onyiuke, Mr Fubara and other defence counsel supporting them in substance argued that the Joint Conference Committee was exercising a constitutional function under Section 55 (2) and therefore had power to pass the Bill in question into law. It was further argued that the Committee was an arbitrator or an agent of the National Assembly and therefore there was no need to refer the result of its deliberations to both Houses of the National Assembly. Although the committee was set up pursuant to Section 58 (3), it was variously argued that Subsections 1, 2 and 4 of Section 58 should be ignored, that Section 58 (3) was only important for purposes of setting up the Joint Conference Committee or the Joint Finance Committee referred to in Section 55 (2) and (5), and that since the National Assembly had not delegated its legislative power Section 58 (4) was irrelevant.

I would first of all state that with regard to the provisions of Section 55 (2), not passed by the other House contained therein the context of this case means, in my view, not passed in the form in which it was passed by the other House which in fact means rejection. One House passed the Bill with a set of amendments, the other House did not pass it in that form but in effect rejected it and rather passed it with a different set of amendments. Secondly, having regard to Section 54 (1) and (2) and Section 58 (4) of the Constitution, I am firmly of the view that the Joint Conference Committee had no power to pass the bill in question finally into law. Section 58 (4) of the Constitution provides as follows:

"Nothing in this Section shall be construed as authorising such House to delegate to a Committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the Committee may make recommendations to the House on any such matter."

The Joint Committee which carried out the constitutional functions under Section 55 (2) was appointed pursuant to Section 58 (3) of the Constitution; Section 58 (3) which had been set down earlier is necessarily to be construed subject to Subsection 4 of Section 58. A close look at Section 58 shows without any room for doubt that Subsections 1,2 and 3 must be interpreted with due regard to subsection 4 nothing in this Section i.e. the whole of Section 58. Such House in Subsection 4 also clearly refers to either House of the National Assembly as contained in Subsections 1, 2, 3. The effect is that the National Assembly is precluded by Subsection 4 of Section 58 from delegating its powers to pass a bill into law to the Committee set up under Section 58 (3). The Constitutional provisions cannot be interpreted in watertight compartments but as a whole. I do not therefore see how we can extract Section 58 (3) and ignore Subsections 1, 2 and 4. In the circumstances, the Joint Conference Committee on Revenue Allocation having resolved the differences, albeit by majority votes, ought to have sent its report to both Houses of the National Assembly for their resolution before the bill proceeded to the President for his assent. The Committee in "resolving the differences between both Houses" was no more than a mediator or conciliator, a vehicle through which a formula or some compromise agreement may be worked out. To interpret it otherwise would be to do violent injustice to the terms and intendment of Section 54 (1) and (2) of the Constitution. A Bill to be passed into law must be passed by a resolution of both Houses of the National Assembly and assented to by the President of the Federal Republic. The framers of our Constitution were obviously anxious that the National Assembly should not delegate its legislative power to a Committee. It is an anxiety which is shared by other Constitutions in other common law countries (see Section 76 of the Constitution of the Democratic Socialist Republic of Sri Lanka). It is only pertinent to add that we were not referred to any Constitution anywhere in which a Committee was authorised to pass a money bill into law. I was also unable to find any.

The proponents of the view that the Committee could pass the Bill in question into law made reference to Section 55 (3) of the Constitution. That Section provides that-

"where the joint finance committee fails to resolve such differences the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such joint meeting it shall be presented to the President for assent"

It was argued that in this case in which the Joint Committee resolved the differences i.e. it did not fail, that Section does not apply and so there is a lacuna in the Constitution where the Committee succeeds. I do not agree with this and there is no lacuna in the Constitution. If the Committee had failed in its assignment of resolving the differences of course the section would have come into play. In this case in which it completed its assignment it would, in my respectful view, still apply should it become necessary. According to the views I have expressed above on the meaning of Sections 55 (2) and 58 (4), if the resolutions of the Joint Conference Committee are again rejected by either House or both Houses or it is indeed amended such that both Houses still disagree, Section 55 (3) would come into play. Section 55 (3), as against Section 54 (3) is designed in any event to save a money bill from collapse.

Learned Counsel for the Plaintiff, Chief Williams using Exhibits S.C.1, S.C.2, S.C.3, S.C.4, S.C.5, S.C.6 and S.C.7 contended that the Joint Committee which dealt with the Revenue Allocation Bill was not the Joint Finance Committee as required by sections 55 (2) of the Constitution, but another Committee called the Joint Conference Committee on Revenue Allocation. Using particularly Exhibit S.C.3 (where the House of Representatives in its sitting of 27th January, 1981 appointed its members to the Joint Committee on Revenue Allocation and the Joint Finance Committee) he made the point that the members of the House of Representatives appointed to the Joint Finance Committee did not meet their counterparts from the Senate on the Revenue Allocation Bill. The Senate, he said, did not appoint their own members on the Joint Finance Committee until the 3rd February, 1981, i.e. after the Joint Conference Committee on Revenue Allocation had completed its assignment. He also complained that it was inaccurate for the Clerk of the National Assembly to state in Exhibit S.C.6 that the Joint Finance Committee met on 29th January, 1981.

It is not in dispute that the Joint Conference Committee on Revenue Allocation which met on the Revenue Allocation Bill consisted of 24 members of the Senate and the House of Representatives appointed in accordance with Section 58 (3) of the Constitution. It seems quite clear from a close examination of Exhibit S.C. 1-5 and S.C.7, 9 and 10 that there were 2 Joint Committees one on the Finance Bill 1982 and that on Revenue Allocation. The members of both Houses who met on the Revenue Allocation Bill were different from those who met on the Finance Bill. If one Committee was appointed for the Finance Bill, the other could have been working on nothing else than the Revenue Allocation Bill. I am inclined to the view that this objection raises really only a matter of Nomenclature. Even though Section 55 (2) contains reference to the joint finance committee I do not think it matters what the joint committee appointed under section 58 (3) is called. What matters is the purpose for which it is appointed and the constitutional function which it performs. I am satisfied that the Joint Committee which met on the Revenue Allocation Bill on 29th January, 1981 was the same one appointed by both Houses pursuant to Section 58 (3) and for purposes of Section 55 (2) of the Constitution. Finally, it was the contention of Chief Akinjide, Learned Attorney-General of the Federation supported by Chief T. Achi-Kanu, Deputy Solicitor General of the Cross River State, that the claims of the Plaintiff should fail because the plaintiff having taken benefit (collecting statutory revenue) under the Allocation Revenue (Federation Account, etc.) Act, 1981 (Exhibit S.C. 11) has waived its rights and is estopped from coming to Court to challenge its invalidity. He referred to Sections 2, 3, and 6 of the Act in question which he said were operational and claimed that the plaintiff had taken its share of statutory revenue under that Act. Since the plaintiff is claiming injunctive and declaratory reliefs, which are equitable reliefs, it should come with clean hands he said. He cited several cases involving individual and state rights including Wall v. Parrot Silver Cooper Company 244 U.S. 407-37 Supreme Court Reporter 609; Robertson v. Minister of Pensions (1948 All E.R. 767; Great Falls Manufacturing Company v. Augustine II. Gardner Attorney General 124 U.S. 527; Clark General Treasurer etc. v. Barnard and ors. 107-108 U.S. Vol 2Supreme Court Reporter 878. In reply, Chief Williams, for the Plaintiff, contended that if the National Assembly and the President of the Republic have not carried out their constitutional duties they cannot escape by pleading estoppel. One cannot contract out of the Constitution he argued. Where a statute imposes a duty of a positive kind one could not set up an estoppel in order to prevent it. On waiver he contended that one cannot abandon his right to come to Court. There can be no waiver of a statutory requirement which is imposed in the public interest he argued. Section 149 read together with Sections 4, 54, 55, and 58 contained such requirements. He referred to: Maritime Electric Company Ltd. v. General Dairies Ltd. (1937) A.C. 610; South Ottawa v. Perkins (supra); Greenwood v. Martins Bank 1933 A.C. 51 at 57; Laker Airways v. Department of Trade 1977 Q.B.D. 643; The Equitable Life Assurance of the United States v. Bogie (1905-1906) 3 C.L.R. 878.

As regards the doctrines of Estoppel in pais as they may apply to this case, it is established that a plea of estoppel would not be allowed if its allowance would result in an illegality. The Court is here concerned with the legality of an Act of the National Assembly. Also an estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty: Chapman v. Michaelson (1908) 2 CH. 612 at 621 and 622; Sunderland Corporation v. Priestman (1927) 2 CH. 107; Maritime Electric Co. Ltd. (supra) See also Southend-on-Sea Corporation v. Hodgson (Sickford) Ltd. (1961) 2 All E.R. 46. With regard to the claim that the plaintiff has waived its rights again, as alleged, because it has claimed benefit under the Statute being challenged, I can only say that I do not think that Bendel State can waive the fundamental rights which it has to come and challenge the Act in Court. The principle has always been that Courts should indulge every reasonable presumption against waiver and should not presume acquiescence on the loss of fundamental rights: Barker v. Wingo 407 U.S. 514; 92 S.Ct. 2182; 33 L. Edd. 2d 101; Aetna Ins. Co. v. Kennedy, 310 U.S. 389, 393; 57 S.Ct. 809.

As regards procedure, the modern tendency has been to insist that a party should raise by pleading all such matters as are intended to be relied upon by way of estoppel. But there has been no pleadings in this case. In such cases, the party desirous of relying upon the estoppel must raise it by objection in some other form at the earliest possible stage of the proceedings. See Stratford-upon-Avon Corporation v. Parker (1914) 2 K.B. 562. There is not one single counter affidavit of the 1st defendant or any defendant in which the facts on which estoppel and waiver are based were set out. The only references to share of revenue under the challenged Act by the States were obliquely made in paragraph 7 of the counter affidavit of Mr D. Omotade, Principal State Counsel in the Federal Ministry of Justice dated 6th April, 1981 and paragraphs 1, 2 and 3 of the counter Affidavit of Dr Obuzuwa, Legal Adviser to the 20th Defendant. In fact paragraph 7 of Mr Omotade's counter affidavit (which was in answer to paragraph 6 of Mr Obasuyi's learned Attorney-General of the Plaintiff State) was in answer to the plaintiff's prayer for a restraining order.

In any case, the plea of Estoppel and Waiver must fail on the facts of this case. There is nothing before this court to indicate that the Plaintiff has received any statutory share of revenue under the challenged Act. On the contrary, the Plaintiff produced an affidavit which appears to indicate that it has not. I refer to the Affidavit of Simeoun Eyoma Okotie, Accountant-General of Bendel State, dated 29th June, 1981. I refer particularly to paragraphs 7, 8, 9, 10, 11, 12 and 13. In paragraphs 11 he deposed as follows-

"The monthly sum of N27,410,293.50 which is being paid to Bendel State from the beginning of the current year is exactly the same monthly sum which was paid in respect of the preceding fiscal year (April 1980 to December 1980).

It is for all the reasons given above, that I agree that the claim of the Plaintiff must succeed. The Allocation of Revenue (Federation Account, 1981 etc.) Act, 1981, was not passed in accordance with the provisions of Sections 54,55 and 58 of the Constitution of the Federal Republic of Nigeria, 1979 and is therefore unconstitutional, null and void, and of no effect. Having so found, I do not find it necessary to consider the validity of Sections 2 and 8 of the Act (Exhibit S.C.11) which the Plaintiff also complained of. It is perhaps necessary having regard to the sensitive nature of the subject of the Suit to re-emphasise that this judgment has not dealt with nor has it made any conclusions on the question of the percentages of share of revenue which each of the component units of the Federation ought to have. Indeed, that was not an issue before us. I hereby grant all the reliefs and declarations contained in paragraphs 2 (a) (b) (d) and (f). The order in relation to costs is as contained in the judgment of the learned Chief Justice of NIGERIA.

Uwais, J.S.C.: I propose to state in summary from the facts of this long and complicated case. The facts are fully stated in the judgment of my learned brother, Fatayi-Williams, C.J.N., which I have had the privilege of reading. I could add nothing to his exposition of the facts and I am wholly in agreement with his conclusions of law on the questions asked and the claims made by the plaintiff.

The action which is by way of originating summons under Order 5, rule 2 of the Supreme Court Rules, 1977 poses questions for the Court to answer and the grant of injunctions. These have been fully set out in the judgment of my learned brother, the Chief Justice of Nigeria.

The defendants with the exception of the Attorneys-General of Anambra, Bauchi and Imo States entered appearances and filed counter-affidavits to the one filed by the plaintiff. The counter-affidavits filed by the Attorney-General of the Federation (1st defendant) and on behalf of the 20th, 21st, 22nd and 23rd defendants raise a number of points against the plaintiff's claim. These are:

1. That the plaintiff's claim is not properly before the Court.

2. That the plaintiff's claim is misconceived.

3. That the plaintiff has no valid claim before the Court.

4. That the Court has no jurisdiction to adjudicate in the matter.

5. That there was no dispute between the plaintiff and the defendants.

6. That the plaintiff's claim is (a) non-justiciable (b) vague and (c) untenable.

7. That the plaintiff is estopped and has waived its right to impugn the validity of the Allocation of Revenue (Federation Account, etc.) Act, 1981 since it has received payments of revenue in accordance with the 1981 Act.

All these points together with others were argued before us and I propose to consider them in due course.

By the provisions of sections 149 and 272 of the Constitution of the Federal Republic of Nigeria, 1979, the National Assembly is envisaged to pass an Act on the system of revenue allocation "between the Federation and the States, among the states, between the states and local government councils and among the local government councils in the States." A bill to that effect was sent by President of the Federal Republic of Nigeria to the National Assembly. The bill as originally presented was debated and passed by the Senate with amendments. It was also passed by the House of Representatives after debate with different set of amendments which are at variance with those of the Senate. The President of the Senate convened a meeting of the joint finance committee of the Senate and the House of Representatives, as he is enjoined under Section 55 subsection 2 of the 1979 Constitution, to resolve the differences between the two Houses of the National Assembly. The House of Representatives selected 12 of its members who were to represent it on the joint finance committee and the House referred to them as members of the "Joint Conference on Revenue Allocation." The Senate also nominated 12 of its members to represent it on the Joint Conference. The joint committee met and resolved the differences between the Senate and the House of Representatives. The differences were resolved by votes and the majority carried the day by 13 votes to 11. Thereafter the bill, without being sent back to either the Senate or the House of Representatives, was presented to the President of the Federal Republic of Nigeria for assent and the President signed it into law on the 3rd February, 1981. The Act came into force retrospectively with effect from 1st January, 1981. The bill as presented to the President of the Federal Republic of Nigeria had attached to it a schedule prepared by the Clerk to the National Assembly in accordance with the provisions of the Acts Authentication Act, 1961.

No oral evidence was heard by the Court, as such all the available evidence in the case is based on the affidavits filed by the plaintiff, the mass of counter-affidavits filed severally by the defendants and a number of documents tendered from the Bar as exhibits.

Opening the case for the plaintiff, Chief Williams said on its behalf that the basis of the Allocation of Revenue (Federation Account, etc.) Act, 1981, is to distribute revenue between the Federation, States and Local Governments and because this affects the Government of Bendel State, is why the action is brought. All the Governments of the States of Federation were joined because they have interest in the distribution of the national revenue. Furthermore any decision in the case will affect the states. Chief Fani-Kayode for the 20th and 21st defendants argued that the question asked under paragraph 1(a) of the plaintiff's originating summons is hypothetical and does not go to the issue. The question in paragraph 1(d) which is in the alternative is not relevant, he said, to the plaintiff's claim. Chief Fani-Kayode also made the point that the plaintiff's claim in paragraph 2 of the originating summons is more like a reference under Section 259 of the 1979 Constitution. He remarked that paragraph 2 (a) thereof is hypothetical, paragraph 2 (b) makes no claim on the national revenue, paragraph 2 (d) which is a bad challenge to the 1981 Act is vague. While conceding that paragraph 2 (c) is the only paragraph under head 2 of the originating summons that has relation to a claim, he attacked it as being so vague that it does not require the declaration urged. He also argued that the plaintiff's claim has not complied with the provisions of Order 5, rule 2 of the Supreme Court Rules, 1977, because the plaintiff has failed to state in its originating summons the nature of its interest which must be a legal or equitable right. Chief Fani-Kayode submitted that the plaintiff's claim for declaration should be dismissed under Order 5, rule 6 of the Supreme Court Rules, 1977, since it has not complied with the provisions of the Court's Rules.

Replying Chief Williams said that what matters is whether this Court has jurisdiction under section 212 of the Constitution to deal with the plaintiff's case. If it had the jurisdiction it did not matter as to the procedure followed by the plaintiff in coming to the Court. He relied on Order 2, rules 1 and 2 of the Rules of the Supreme Court of England to say that Chief Fani-Kayode cannot raise the objections orally without filing a motion and that the 20th and 21st defendants did not enter conditional appearance. He cited in support Johnson v. Aderemi, 13 WACA 297 and Adejumo v. Governor of Lagos State (1970) 1 All N.L.R. 183 at page 185.

Now Order 5, rules 2 and 6 of the Supreme Court Rules 1977 provide as follows:

"2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends on the construction of the Constitution of the Federation or of a State may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed."

"6. Rules 2 and 3 of this Order shall not affect the right of any person seeking a declaratory judgment to institute proceedings by filing a statement of claim under Order 3 and on an application by originating summons the Court shall not be bound to determine any such question of construction if in the opinion of the Court it ought not to be determined on originating summons."

The Rules of the Supreme Court of England become applicable in this case by virtue of the provisions of Order 2, rule 1 of the Supreme Court Rules, 1977. The English Rules cited by Chief Williams deal with non-compliance with rules and application to set-aside for irregularity. For ease of reference they read:

"2. 1- (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document or judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

2. 2- (1) An application to set aside for irregularity any proceedings, any step taken in any proceeding or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion."

As the objections raised by Chief Fani-Kayode seem to relate to the form of the action and not its substance the reply given by Chief Williams appears to meet the objections. This Court has said on many occasions that it will do justice in any case that comes before it and will not be deterred by objections raised on technicalities particularly where such objections relate to procedural irregularities which are curable: Nofiu Surakatu v. Nigeria Housing Development Society Ltd. and Anor. (1981) 4 S.C. 26 at pp. 35-36. No conditional appearance was entered by the 20th and 21st defendants, the counter affidavit is neither a "summons" nor "motion". This disposes of the objections.

The point next made by Chief Williams is as to what evidence the Court will take in order to determine the issues involved in this case. He contended that there is no difficulty in establishing first, that the Senate passed the Allocation of Revenue (Federation Account, etc.) Bill on the 18th January, 1981. Secondly, that the House of Representatives passed it on 22nd January, 1981. Thirdly, that the joint committee agreed on the terms of the Bill on 29th January, 1981. Fourthly, that after deliberation of the joint committee the Bill was not sent back to either of the Houses of the National Assembly. Fifthly, that the President of the Federal Republic of Nigeria assented to the Bill on 3rd February, 1981 and sixthly, that the joint committee which agreed on the Bill was not the Joint Committee on Finance but a Joint Conference Committee on the Allocation of Revenue. With regard to the proof of these six points he asked the Court to look at the documents which had been pleaded by some of the defendants and the counter-affidavits filed on behalf of the 20th, 21st, 22nd and 23rd defendants. Among the documents pleaded was a certificate issued by the 23rd defendant under the Acts Authentication Act, 1961, which was exhibited in the counter-affidavit deposed to by Mr Sanu Sobowale, the 12th defendant. The certificate has been put in evidence as exhibit S.C. 6.

Chief Williams went on to argue that since the Bill went to the Joint Committee on Finance, as is contained in exhibit S.C.6, the Court should take the view that there were differences in the decisions of the two Houses of the National Assembly. He said it is also a matter of inference, as a matter of fact, that the Bill went from the Committee to the President of the Federal Republic of Nigeria. He then referred to paragraphs 8, 9 and 10 of the counter-affidavit of the 23rd defendant which state:

"8. That I as the Clerk to the National Assembly certified that the Bill to the National Assembly in respect of the said Act had been duly passed by the National Assembly.

9. That after the said certification by me the Bill was presented by myself to the President of the Federal Republic of Nigeria for his assent to the said Bill.

10. That the said President of the Federal Republic of Nigeria duly gave his assent to the said Bill."

Learned Counsel for the plaintiff argued further that since the Allocation of Revenue (Federal Account, etc.) Act, 1981 has been enrolled and it is in the custody of the Court, we should take judicial notice of it. He submitted that where evidence of the course of proceedings in the legislature is essential to decide the grounds on which an enactment is challenged the Court will take judicial notice of the relevant evidence from any reliable source open to it. He cited in support three Australian cases-Australian Communists Party v. Commonwealth, 83 C.L.R. 1 at p. 276 per Kitto J., Commonwealth Freighters Party Limited v. Sneddon 102, C.L.R. 280 at pp. 293 and 301 and Breen v. Sneddon 106 C.L.R. at pp. 411 and 412 per Dixon C.J. Learned Counsel also referred to American authorities-Prentis v. Atlantic Coast Line Co., 21 U.S. 210, Jay Burns Banking Co. etc. v. Bryan, Governor of Nebraska etc., 264 U.S. 504 and South Ottawa v. Perkins, 94 U.S. 264.

Reference was also made by him to Sections 73 (1) (c) and 112 (b) of the Evidence Act, Cap. 62 (Laws of the Federation of Nigeria and Lagos, 1958) to submit that the proceedings of the National Assembly are admissible. He argued that all the proceedings of the Senate and the House of Representatives which are exhibited in the counter-affidavit of the 12th defendant are admissible since they were authorised to be printed by the Government Printer. Finally he submitted that such documents not exhibited in the counter-affidavit could be tendered by him from the Bar and that they would be admitted on the authority of the Briebery Commissioners v. Ranasinghe, (1965) A.C. 172 at p. 194.

He tendered from the Bar a number of documents (amongst which were the votes and the proceedings of the Senate and the House of Representatives) and these were admitted as exhibits S.C.1, S.C.2, S.C.3, S.C.4, S.C.5, and S.C.6.

Chief Akinjide argued that the proceedings of the Senate and the House of Representatives whether at committee stage or full session of the Houses cannot be used to impeach the validity of the 1981 Act. By comparison he said that in the United States the courts look at the proceedings of their legislatures but they do not admit them as evidence to attack the validity of an act. He also referred to the practice in Australia where he said the proceedings are completely inadmissible. He made reference to sections 2 (2), and 3 (2) of the Acts Authentication Act, 1961 which make the certificate of the Clerk to the National Assembly and a copy of the Gazetteer containing the schedule made by the Clerk to the National Assembly respectively conclusive for all purposes. He then tendered from the Bar Federal Gazette No. 6 of 1981 which contains the Allocation of Revenue (Federation Account, etc.) Act, 1981, No. 1 of 1981 which was admitted as exhibit S.C. 11. A number of American cases were cited by him in support of his submission. These include-State v. Martin, 38. W.N. 2nd Series 834 at p. 840-841, Field v. Clark, 143 U.S. 649 Evans v. Browne, 30 Ind. 514 (1869) at pp. 525-527, Harwood v. Wentworth, 162 U.S. 1069, State etc. v. Governor Schricker 228 Ind. 41 (1949) at pp. 46-47 and Flint v. Stone Tracey Co., 220 U.S. 107.

Mr Ajayi learned Counsel for the 5th, 7th, 10th, 12th, and 14th defendants contended that S. 4 (8) of the 1979 Constitution gives this Court the power to inquire into the exercise of the legislative power by the National Assembly and if any provision of the Acts Authentication Act, 1961 will have the effect of stopping the Court from making the inquiry then such provision is inconsistent with S. 4(8) and will in view of the provisions of S. 1(3) of the 1979 Constitution be void to that extent. He cited in support of his argument-Bribery Commissioners v. Ranasinghe (supra), A-G. New South Wales v. Trethowan, (1932) A.C. 528 and Rediffusion (Hong Kong) v. A.-G. of Hong Kong (1970) A.C. 1136.

Chief Onyiuke argued that the Court can have jurisdiction to declare on the validity or otherwise of a statute even if the provisions under S. 4(8) of the 1979 Constitution do not exist because the principle of interpreting Constitution had since been established by courts through decided cases. So that S. 4(8) has not given any new jurisdiction to the Court. Although the Court by the provisions of the Evidence Act can look at the proceedings of the National Assembly, he said that in such cases the Court always exercises self-restraint. He supported the American view that an enrolled bill must be looked at as it is and the court will not use the journal of the legislature to impugn the bill. He relies most particularly on Field v. Clark (supra) and The States ex related Dunbar v. The Board of Equalisation, 140 Washington 233 at p. 249. Learned Counsel pointed out that the legislature is the master of its proceedings and if the court will differ from that principle and go behind an enrolled bill, the Court should then be wary of the danger inherent in the attack of the journal of the legislature by affidavit for inaccuracy-Roehl v. Public Utility District No. 1 of Chenham County Washington, (1953) Supreme Court of Washington, 43 Washington 2nd, series, 241 at p. 261 and Fowlers v. Pears, 2 Cal. 165.

The question may now be asked whether the proceedings of the Houses of the National Assembly are admissible to impugn an enrolled act. While the question is answered differently in the United States and Australia, it may be well to consider the question in the light of the provisions of our laws. Section 73 of the Evidence Act, Cap. 62 as relevant provides:

"73. (1) The Court shall take judicial notice of the following facts;

(c) the course of proceedings of Parliament and of the Federal Legislative Houses of Nigeria and of the Legislative Houses of the States of Nigeria;

(2) In all cases in the preceding subsection and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference." (emphasis mine)

("Parliament" in subsection 1 (c) means the Parliament of the United Kingdom.)

By S. 112(b) of the Evidence Act:

"The following public documents may be proved as follows:

(b) the proceedings of the Legislative Council or of a Federal Legislative House-by the minutes of that body or by published Acts or abstracts, or by copies purporting to be printed by order of Government." (Italics mine)

It follows from the foregoing that the Court is bound to take judicial notice of the proceedings of the Houses of the National Assembly, so that by S. 72 of the Evidence Act no proof of the proceedings is even necessary. However where proof becomes necessary the proceedings could be proved by the production of the minutes or abstracts or by their copies which are printed by the order to Government.

All the documents put in evidence before us have been printed by the Federal Government Press. This therefore makes them automatically admissible if their production is required, as the presumption is that they were printed on the authority of Government. The Court is also enjoined by S. 73 subsection (1) (c) to take judicial notice of the exhibits since they pertain to the proceedings in the Senate and the House of Representatives. To facilitate this the court may in its own discretion, that is without production, read appropriate books or any documents of reference. It appears to me beyond any doubt that the Evidence Act allows us without any inhibition whatsoever, to look at the proceedings of the Senate or the House of Representatives as they are "documents of reference" and to accept such proceedings as proved without ado.

If the court can take judicial notice of the proceedings of the Legislature then what stops it from using the proceedings to decide in accordance with S.4 (8) of the 1979 Constitution whether the exercise of legislative power by the National Assembly is ultra vires? The Acts Authentication Act, 1961 seems to imply that the certificate of the Clerk to the National Assembly once signed by him or published in the Gazette puts a stop to the power of the Court to make use of the proceedings of the National Assembly to determine the validity of an impugned act. Section 2 subsections (1) and (2) and Section 3 of the 1961 Act provide:

(1) The Clerk to the National Assembly shall forthwith after enactment, prepare a copy of each Bill as passed by both Houses of the National Assembly or by the House of Representatives as the case may be, embodying all amendments agreed to, and shall endorse on the Bill and sign a certificate that the copy has been prepared as prescribed by the section and is a true copy of that Bill.

(2) The Clerk to the National Assembly shall as from time to time directed by the Speaker of the House of Representatives prepare a schedule of Bills passed at any time during a session and intended to be presented for assent; and shall certify on the schedule that it is a true and correct record. The schedule shall set forth the long

title of a Bill and a summary of its contents and the respective dates on which each Bill passed each House of the National Assembly; and subject to the provisions of this section, when signed by the Clerk to the National Assembly the certificate shall be conclusive for all purposes. If a Bill in the Schedule is one to which section 59 of the Constitution of the Federation applies, the Schedule shall, in addition, be endorsed with the prescribed certificate of the Speaker of the House of Representatives in respect of that Bill.

3. (1) The Schedule and copies of the Bills shall be presented to the President of the Federal Republic of Nigeria in duplicate. If the President of the Federal Republic of Nigeria is satisfied, he shall cause the schedule to be passed under the public seal of the Federation after affixing his signature to the schedule;

(2) A duplicate of the Schedule when passed and signed shall be returned to the Clerk to the National Assembly who shall cause a copy to be published in the Gazette; and the production of the Gazette containing the schedule as published shall be conclusive evidence for all purposes." (emphasis mine).

There is therefore a seeming inconsistency between the provisions of the Evidence Act Cap. 62 and those of the Acts Authentication Act, 1961.

Section 4 (8) of the 1979 Constitution confers jurisdiction upon the Court by making the exercise of the legislative powers of the National Assembly subject to the jurisdiction of Courts. It provides:

"Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law."

The exercise of legislative power by the National Assembly is attained through the proceedings in the Houses of the National Assembly. The 1979 Constitution has made provisions under sections 52, 54, 55, 56, 57, 59 and 60 thereof pertaining to the procedure to be followed by the Houses. If the propriety of the exercise of the legislative power through such procedure is challenged, as is in fact the case here, how can the court deal with the situation if it is not allowed to go behind the enrolled act or the certificate of the Clerk to the National Assembly? It would appear that in such an event the provisions of the Acts Authentication Act, 1961, which tend to render ineffective the provisions of the Evidence Act, will also infringe on the jurisdiction of the courts to supervise the exercise of legislative power by the National Assembly. Such provisions of the 1961 Act are clearly inconsistent with the 1979 Constitution and, as was submitted by Mr Ajayi, void by virtue of section 1 subsection (3) of the Constitution which states:

"If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void."

With regards to the use which the court can make of the proceedings of the legislature, counsel have extensively drawn the attention of the Court to the rule elsewhere particularly countries such as Australia, Ceylon, England and the United States. Those rules, useful as they are for the purposes of comparison and persuasion, are based upon the provisions of Constitutions and or Statutes of those countries which are not necessarily the same as ours. However, the provisions of our Acts Authentication Act, 1961 tend to follow the practice in those countries. Although the provisions of our Constitution are in some respect the same as those found in the written constitution of the countries in question there are quite a number of fundamental differences in contents and details. In my view the issue here presents one aspect of such differences.

It appears that the court in the exercise of its jurisdiction under section 4 (8) is entitled to look at the proceedings of the National Assembly as provided under sections 73 and 112 of the Evidence Act, Cap. 62; and when an act is being impugned, to look beyond the certificate of the Clerk to the National Assembly. This stand which may be taken of the matter is indeed radical and runs contrary to the rule applicable in most Commonwealth countries and the United States. Discussing the rule Dr B.O. Nwabueze stated in his book Judicialism in Commonwealth Africa at pp. 259-260; as follows:

"The rationale for the rule is that the signing of an enrolled bill by the presiding officers is an official attestation by the legislative Houses of such a bill having been duly passed by them. It is a declaration by them, through their presiding officers, to the head of state that the bill has received, in due form, the sanction of the legislative branch. And when, upon the strength of that declaration, the bill is approved and signed by the head of state, his signature together with those of the presiding officers is a solemn assurance to the Court and to the nation that all necessary formalities have been observed. The respect due to co-equal and independent departments requires the Court to accept and act upon that assurance. To go behind the assurance would involve the subordination of the legislative and the executive branches to the Court.

Further, public policy requires that an enrolled act should not be put in question after the public has given faith in its validity and regulated its relations and dealings accordingly. Great uncertainty and instability in statute law would result if an enrolled and duly authenticated act were to be subjected to impeachment on the basis of some evidence of lack of due passage." (italics mine).

The jurisdiction of the Court to supervise the exercise of legislative power of the National Assembly as already stated is quite clear under section 4 (8) of the Constitution, and with respect, will not accommodate the sentiments expressed in the above quotation. Solemn assurance to the Court is not substitute for proof and the principle of respect to the separation of powers as well as the principle of public policy cannot override the express provisions of the Constitution that this Court should examine the making of any law by the National Assembly when called upon to do so. I see no uncertainty or any instability arising from the challenge in court of the validity of an enrolled and authenticated act, because such situation has been taken care of under section 6 of the Interpretation Act, 1964 which states:

"6- (1) The repeal of an enactment shall not-

(a) revive anything not in force or existing at the time when the repeal takes effect;

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been replaced.

(2) When an enactment expires, lapses or otherwise cease to have effect, the foregoing subsection shall apply as if the enactment had then been repealed."

This also disposes of the fear of Chief Akinjide, learned Attorney-General of the Federation, that the practice of going into the procedure of the enactment of enrolled acts will create serious situation and the country can as a result be thrown in to chaos and turmoil.

It will be necessary to point out that in looking at the proceedings of the National Assembly under the provisions of the Evidence Act distinction must be drawn between using the proceedings to establish a broad fact on one hand and to prove the accuracy of a statement on the other. While the latter is certainly not advisable due to the possibility of mistake in compilation which is inherent in the process of making the record, the former is permissible because it does not take into account the details of the proceedings but the main event. For instance, could it be said that a meeting has taken place on a particular date and that at the end of the meeting a decision was taken one way or the other? That is what the admission of the exhibits in this case is about and I see no tenable reason why they should not be used to prove the facts alleged.

The ground is now prepared for the consideration of the questions posed and the claims in the originating summons of the plaintiff which are the real substance of this action. The questions under paragraph 1 (b) and (c) of the originating summons were abandoned by Chief Williams and as such do not call for consideration. The question in paragraph 1 (a) and the claims under paragraph 2 (a) and (b) were argued together by him. He said that in order to answer the question in paragraph 1 (a) the interpretation of sections 54 and 55 of the 1979 Constitution will be necessary.

These sections read:
"54- (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.

(4) Where a bill is presented to the President for assent, he shall within 30 days thereof signify that he assents or that he withholds assent.

(5) Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.

55- (1) The provisions of this section shall apply to-

(a) an appropriation bill or a supplementary appropriation bill including any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of the Federation of any money charged thereon or any alteration in the amount of such a payment, issue or withdrawal; and

(b) a bill for the imposition of or increase in any tax, duty or fee or any reduction, withdrawal or cancellation thereof.

(3) Where the joint finance committee fails to resolve such differences then the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed as such joint meeting, it shall be presented to the President for assent.

(4) Where the President within 30 days after the presentation of the bill to him fails to signify his assent or where he withholds assent, then the bill shall again be presented by two-thirds majority of members of both Houses at such joint meeting, the bill shall become law and the assent of the President shall not be required.

(5) In this section, "joint finance committee" refers to the joint committee of the National Assembly on finance established pursuant to section 58 (3) of this Constitution."

Learned Counsel for the plaintiff contended that section 54 (1) is general in terms and applies always to bills in general. On section 54 (2) he said that for a bill to become law it must pass through three stages. That is to say it must be passed by each House and assented to by the President. The exception under S. 54 (2), he further

contended, is common to both S. 54 and S.55. He submitted that S. 55 (2) is a machinery for resolving the differences between the two Houses of the National Assembly in the event of disagreement between them in passing a finance bill, and that the object of the joint finance committee as constituted under S. 55 (2) is to find a formula acceptable to or likely to be accepted by the two Houses. Counsel further submitted that S. 55(3) must first be read before the full meaning of S. 55(2) could be appreciated, and argued that if it is permissible for the joint finance committee to come to a decision that would bind the two Houses, then the inclusion of section 55(3) in the Constitution would not have been necessary. He also referred to Section 58(4) of the 1979 Constitution, which provides that the Houses of National Assembly have no power to delegate to a Committee their power to decide whether a bill shall be passed into law. He said that a matter so fundamental as the sharing of revenue between states and local governments is not a matter that should be left to a committee. In support of this argument he referred to the provisions of section 4(1) of the Constitution and submitted that the legislative power of the National Assembly cannot be delegated to any other body because that power rests with the National Assembly only. Learned Counsel therefore contended that even if there were no provisions under Section 58(4) which prohibit delegation of legislative power the Court should not allow the decision of a joint committee to go to the President for assent because such decision will be inconsistent with the provisions of Section 4 (1) of the Constitution. It was urged also that the Court should not construe the Constitution by inference since no specific provision has been made as to what is to happen when the joint committee on finance resolved the differences referred to it. But if the Court were to draw an inference it should draw such inference which will not contradict the specific provisions of the Constitution. In support of the submissions the following authorities were cited: Western Bank Ltd. v. Schindler, (1977) 1 Ch. 1 at P. 13 per Buckley L.J., Queen v. Overseers of Tonbridge, 13, Q.B.D. 339 at pp 341 and 342 per Brett, M.R. and Reid v. Reid, 31 Ch. 402 at p. 407 per Cotton, L.J., Chief Williams conceded that the Allocation of Revenue (Federation Account, etc.) Bill, 1980 is a money bill.

Learned Attorney-General of the Federation argued that where a bill has been passed by the legislature there is a presumption of regularity, as per the maxim: Omnia praesumuntur rite esse acts. Though the presumption is rebuttable, he said that it is not disputed by the plaintiff that each of the 2 Houses of the National Assembly passed the 1981 Bill, and in so doing the Houses exercised their legislative power. he said that although the Committee that resolved the differences between the 2 Houses was referred to as the Joint Conference Committee on the Allocation of Revenue, it was in fact a joint committee on finance of both Houses and it was appointed to perform a function under S.55(2) of the Constitution. So that it does not matter by what name it was referred to. Next, the learned Attorney-General in answer to the Court on whether S.58(4) presupposes reference to both Houses of National Assembly said that there are two possible occasions when a bill will be sent to a committee. The first he said is where the bill is sent to a standing committee of one of the Houses before it is considered by that House at all. That committee after considering the bill will have to send it back to the House for consideration because it was never deliberated upon by the House before it went to the committee. He said that such a bill will come under the provisions of S.58(4) and not section 55; so that no money bill will come under that procedure. The second possibility he said is where each of the 2 Houses have exercised their legislative power in passing a bill which is a money bill and there are differences between the 2 Houses in decisions they had taken. In such a case, he said that it is S.55(2) that will apply. He submitted that where S.55(2) applies no reference should be made to S.58(4). If S.58(3) is read together with S.55(5) the words "such House" in S.58(4) will not apply, but if S.58 is read on its own as a whole then the words "such House" under S.58(4) will apply. He contended further that if S.55 subsections (2) and (3) are read together it would seem that if the committee is able to resolve the differences between the two Houses the no joint sitting of the Houses will take place, while if the differences are not resolved the matter must be referred to a joint sitting of the 2 Houses. He said that since in Constitutional law what is not forbidden is allowed, it was proper to refer the Bill to the President for assent although S.55(2) does not so provide. He finally said that the sending of the bill to the Joint Committee on Finance by the 2 Houses of the National Assembly amounts to a contingent delegation which is recognised in India and the United States to avoid deadlock in passing laws. By the delegation, he submitted, the 2 Houses exercised their legislative power.

Mr Ajayi, contended that the power to pass bills into law is entrusted by the Constitution to the 2 Houses of the National Assembly and such power cannot be delegated to a committee in the absence of direct or express provision of the Constitution which confers such power on the Committee. He said that all committees appointed, either separately or jointly by either or both Houses of the National Assembly, derive their powers and responsibilities from S.58 of the Constitution. He argued that the provisions of S.54 of the Constitution apply to money bills and non-money bills alike. The provisions, he said cease to apply to money bill when the 2 Houses of the National Assembly are unable to agree on the differences between them within a period of 2 months from the commencement of the financial year. Counsel further argued that the 1980 Bill was not a money bill because as passed the Bill is not an Act for the issue or withdrawal of money but an Act which provides or describes the basis for distribution only. It follows, he submitted, that S.54 (and not S.55) applies to the 1981 Act. So that any disagreement between the 2 Houses of National Assembly on the 1981 Act was not to be referred to the joint finance committee. On the basis of this argument he contended that it was open to both Houses to act under Sections 54 and 58(1) of the Constitution to appoint a joint committee whose power of decision is limited by S.58(4). He submitted that the Joint Conference Committee on Revenue Allocation and was not therefore a joint committee on finance; and as the former was bound by the provisions of Ss.54 and 58 the passing of the 1981 Act by the Committee was unconstitutional.

Mr Achi-Kanu and Mr Fubara, learned Counsel for the 6th and 18th defendants respectively, submitted that a joint committee on finance appointed under S.55(2) cannot pass any bill on its own by resolving differences between the 2 Houses. The decision of the committee must be referred back to the Houses for their acceptance.

For the 20th and 21st defendants, Chief Fani-Kayode submitted that the 1980 Bill was a money bill. He contended that the provisions of S.58(3) apply to the joint finance committee appointed under S.55(2) and since S.58(4) precludes the Houses of National Assembly from delegating their powers to either a single or joint committee, the joint committee on finance had no power to pass a bill into law. He said that if the joint committee on finance resolves differences the legal implication is that is has resolved differences and not passed law. He cited in support Bribery Commissioners v. Ranasinghe, (supra) at p. 196.

It was further submitted by Chief Fani-Kayode that legislatures in all countries that have written Constitution have complete independence subject only to the restriction imposed by the law which creates them. He relied upon Osborne v. Commonwealth of Australia, (1911) 12 C.L.R. 321 at pp. 360-1 and 363-4 per Issacs J., R v. Burah, (1878) 3 A.C. 889 at pp 904-5 per Selbourne L.C. and U.S. v. Ballin 144 U.S. 1. He said that once the legislature follows the provisions of the law creating it the legislature can go on to deal freely with matters not mentioned in the law. The courts on the authority of U.S. v. Ballin (supra) will then not have power to look into the process of the legislature making the law. Learned Counsel submitted that because S.55 is silent on what happens when the joint committee on finance resolved the differences between the two Houses, it was left to the National Assembly to decide what procedure to follow next and it was in so acting that the National Assembly decided that the 1980 Bill should go to the President for his assent. He said that the method adopted by the National Assembly was to expedite the passing of the money bill, and similar urgency in dealing with money bills is found in the Constitutions of India and Australia. Chief Fani-Kayode stated that the procedure adopted by the National Assembly in passing the 1981 Act was also followed in relation to the passing of the Appropriation Act of 1981.

Next learned Counsel urged that restricted interpretation should be given to SS.55 and 58 of the Constitution, that is to say the sections should be interpreted as they apply to the facts of this case only and should not be construed generally: Hodge v. Queen (1884) 9 A.C. 117 at pp. 128 and 132. He said that the whole of S.58 is not applicable to S.55 except as to the way the joint finance committee was appointed under S.55(5). The object of the joint finance committee is to resolve the differences and bring finality, as a legislative agent, to legislative process. So that it would be futile to refer the decision of the joint finance committee to the 2 Houses once there is agreement reached by the committee. He stated that it does not matter by what name the committee was called, that is whether as Joint Finance Committee or Joint Conference Committee on the Allocation of Revenue, since in essence it was appointed to resolve differences between the Houses.

Chief Onyiuke agreed with Chief Fani-Kayode that the joint finance committee was not delegated any legislative function of the National Assembly, rather it had a constitutional function to perform and that is the resolution of differences under S.55(2) of the Constitution.

Now S.58 reads thus:
"58- (1) The Senate or the House of Representatives may appoint a committee of its members for such special or general purpose as in its opinion would be better regulated and managed by means of such a committee, and may by resolution, regulation or otherwise, as it thinks fit, delegate any functions exercisable by it to any such committee.

(2) The number of members of a committee appointed under this section, their terms of office and quorum shall be fixed by the House appointing it.

(4) Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the committee may be authorised to make recommendations to the House on any such matter."

In dealing with the foregoing arguments which were ingeniously put, I think the first issue to be tackled is: what is a money bill? The answer to the question is provided by S.55(1) of the Constitution. Apart from appropriation or supplementary appropriation bill any other bill which is for the payment or issue or withdrawal of any money, from any public fund of the Federation including the Consolidated Revenue Fund is a money bill. Similarly any bill which aims at altering the amount of such payment or issue or withdrawal is a money bill. There is also the bill for the imposition or increase in tax and duty and so on, which is a money bill, though not relevant to the facts of this case.

The next question is: was the Allocation of Revenue (Federation Account etc.) Bill, 1980 a money bill in the light of the foregoing definition? All the learned Counsel for the parties in this case with the exception of Mr Ajayi have at the end of the day agreed, and I think rightly too, that the 1980 Bill was a money bill. By S.149 the Federation is enjoined to keep a "Federation Account" into which revenue collected by the Government of the Federation shall be paid and such revenue is to be distributed among all the governments of the Federation and the States and Local governments in such a way as may be prescribed by the National Assembly. The section reads in full as follows:

"149- (1) The Federation shall maintain a special account to be called "the Federation Account" into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the ministry or department of government charged with responsibility for External Affairs and the residents of the Federal Capital Territory.

(3) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

(5) Each State shall maintain a special account to be called "State Joint Local Government Account" into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State.

(6) Each State shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(7) The amount standing to the credit of the local government councils of a State shall be distributed among the local government councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State."

The word 'distribute.' has been employed throughout S.149 instead of "payment", "issue" or "withdrawal" which occur in S.55(1)(a). Mr Ajayi contends that the basis of the 1981 Act is to distribute as opposed to the "issue" or "withdrawal" of revenue as envisaged by S.55(1)(a). This contention appears to overlook the other purposes of the Act which in subsection 5 of S.149 include the payment of revenue by each state to state Joint Local Government Account. Apart from this, the distribution of revenue from the Federation Account to the States and Local Governments could only mean expending of the revenue to the States and Local Governments. Learned Counsel omitted to refer to "payment" but restricted his argument to "issue" or "withdrawal". "Payment" is envisaged by S.55(1)(a) and if the 1980 Bill met the meaning of the word when it qualifies as money bill. Furthermore the word "issue" in its widest sense could mean "payment". As defined by Webster's New Twentieth Century Dictionary, 2nd Edition, "issue means" the act of passing out or flowing out. I am for these reasons unable therefore to accept the argument that the 1980 Bill was not a money bill.

It is not in dispute that the 1981 Act was, as a bill passed by each House of the National Assembly with different amendments and that the joint committee set up by the 2 Houses met and by a majority vote of 13 to 11 resolved the differences between the 2 Houses. The Bill was then sent to the President for his assent. These facts are contained in the Official Reports of the 2 Houses put in evidence before us (exhibits SC 1-5; 7-10; 12-14) together with the certificate of the Clerk to the National Assembly attached to the Bill (exhibit SC.6). It is quite clear from the provisions of S.55 that the Constitution does not provide what step is to be followed after the differences between the 2 Houses have been resolved by the committee. In the absence of such provision it emerges in this case that two conflicting interpretations are canvassed. The first which is favoured by the plaintiff and supported by some of the defendants is that the decision of the Committee must be sent back to each House to give its blessing to it. The second interpretation which is put forward by the 1st defendant and supported by some other defendants is that since the Constitution is silent on the step to be taken after the committee's decision, the National Assembly is not fettered in any way as to what next to do; and anything it did in that respect cannot be challenged as unconstitutional. I prefer the first interpretation for the following reasons. Section 4(1) of the Constitution provides that the legislative power of the Federation is vested in the National Assembly that is the Senate and the House of Representatives. Section 54(1) states that the power of the National Assembly to make laws is to be exercised by bills passed by both the Senate and the House of Representatives. And in section 58 although a House or both Houses can appoint a Committee or joint committee respectively and delegate such committee with any of its or their function, such delegation cannot under S.58(4) extend to the power to decide whether a bill shall be passed into law. It seems that the overall consequence of these provisions of the Constitution is that only the Senate and the House of Representatives can make laws and not any other group of persons. Therefore it follows that the presentation of the 1980 Bill to the President for assent, without the 2 Houses ratifying the decision of the Committee, is tantamount to the National Assembly delegating to the committee the power to legislate on their behalf. That is one of the functions that the Constitution specifically enjoined that they must never delegate to a committee.

I am mindful of the forceful arguments that had been advanced against this interpretation. I need only refer to two of those which commend themselves most to me: Firstly, that since the Constitution is silent on what follows after the differences between the 2 Houses had been resolved by the Joint Finance Committee, the National Assembly was entitled to follow whatever procedure it deemed fit to pass the 1980 Bill; and the court will be encroaching on the power of the National Assembly if it should declare the procedure unconstitutional.

This submission is in line with the general principle that where there is a separation of power between the executive, the legislature and the judiciary (as in the case of the 1979 Constitution) neither organ will invade the province of the other and neither may control, direct or restrain the action of the other. But in the case of the legislature the principle is subject to at least one exception and that is the legislature has no power to ignore the provisions of the Constitution relating to law-making which are enjoined upon it. Where it is shown that the procedure required by law has not been followed the court is entitled to look at the proceedings leading to the enactment of a statute being impugned; see the observation of the Privy Council in Bribery Commissioners v. Ranasinghe, (1965) A.C. 172 at p. 197:

"These passages show clearly that the Board in McCawlay's case took the view, which commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of lawmaking that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as in the case of Ceylon, or whether the Constitution is "uncontrolled", as the Board held the Constitution of Queensland to be."

Since by the general scheme of the 1979 Constitution only the National Assembly is empowered to make laws the fact the Constitution is silent on what follows when a joint committee on finance reaches agreement in resolving the differences between the Houses ought not to be an excuse for departing from the tenor and spirit of the Constitution.

The second argument is that the Committee which dealt with the 1980 Bill was not delegated any legislative power but was a creature of the Constitution which was vested with the function of resolving the differences between the two Houses. This argument does not answer the question: what happens after the differences are resolved? Should the 2 Houses do nothing more but present the bill for assent? Surely, that decision which was at no time passed by any of the 2 Houses cannot be said to be the law passed by the Senate and the House of Representatives. It clearly offends the express provisions of the Constitution that the legislative power of the federation is vested in the 2 Houses.

Claim 2(d) of the plaintiff's originating summons was next argued by Chief Williams. He contended that the 1981 Act was void because firstly it was passed in contravention of the clear procedure laid down by the Constitution in that the joint finance committee was not authorised to pass a bill for presentation for assent. Secondly, even if the committee was empowered to pass the Bill for assent the particular committee that deal with the 1980 Bill was not the Joint Finance Committee so authorised. Counsel argues that nowhere in the Commonwealth and countries with similar constitution is power given to a joint committee to pass bills and if Nigeria had wanted to do so an express provision to that effect would have been included in the Constitution. I have already considered and disposed of these points and all I need add is that I entirely agree with Chief Williams' submissions.

It had been indicated by Chief Williams that question 1(d) and claim 2(a) were made in the alternative to the other questions and claims dealt with hereinbefore. He argued that the provisions of S.2(2) of the 1981 Act are unconstitutional because they provide that 3 per cent of the revenue meant for the minerals producing states should remain in the custody of Federation. He complained also about the establishment of the Joint Local Government Account Allocation Committee in S.8(2) of the 1981 Act and submitted that the National Assembly has no power to provide for the supervision by the Committee in view of sections 147 and 149(4) of the Constitution.

Because of the view which I take on validity of the 1981 Act as passed by the joint committee on finance I shall not deal with these alternative points in detail. Suffice it to say that a careful examination of section 149 of the Constitution will reveal that the National Assembly is imbued with a great deal of power with regard to the Federation Account. This power is inter alia embedded in the phrase "on such terms and in such manner" which appears in all the subsections but (1) and (5) of section 149. However, in the exercise of the power the National Assembly should tread with care not to infringe on the autonomy of the States.

I have earlier in this judgment set out the points raised by way of defence by the 1st defendant and on behalf of the 20th, 21st, 22nd and 23rd defendants. Some of them have so far been dealt with but the following remain to be considered.

They are:

1. Whether this Court has jurisdiction to entertain the plaintiff's action.

2. Whether the plaintiff after accepting revenue allocation under the 1981 Act has waived its right to sue; and

Whether the plaintiff is estopped from challenging the validity of the 1981 Act after benefiting under it by receiving revenue allocation.

By section 212 subsection (1) of the Constitution this Court is conferred with original jurisdiction. The section reads:

"212 (1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends."

Both Chief Fani-Kayode and Chief Onyiuke contended that the plaintiff's case has not satisfied the provisions of S.212(1). In his argument Chief Fani-Kayode said that there is no "dispute" between the plaintiff and the defendants. He submitted that "dispute" means controversy and argued further that even where there is actually a dispute the plaintiff has to show that the dispute involves a question of law or fact, and that such question of law or fact extends to the plaintiff's legal right. He said that the plaintiff has not shown, in the face of its originating summons and affidavit, sufficient reason for this court to exercise its jurisdiction under S.212(1). It is not enough, he said, for the plaintiff to assert that the 1981 Act is not an Act of the National Assembly because it is ultra vires the constitution, the plaintiff must show that its legal right has been infringed or threatened. He contended that the power of the National Assembly under S.149 of the Constitution is wide and political because of the employment of the phrase "such terms and such manner" under the section. He therefore submitted that no state can challenge the exercise of such political power by the National Assembly; and cited a number of authorities in support of his submissions and these include: In the matter of Arawoye of Ilesha, 1958 W.R.N.L.R. 36, Atena Life Insurance Co. of Hartford v. Haworth, 300 U.S. 227 at pp.240-242; London N.W. Rly v. Billington, (1899) A.C. 79 at pp. 81-82, Bamargh State v. The Province of Bihar, A.I.R. (1949) F.C. 55 at p. 56; Massachusettes v. Melon, etc., 262 U.S. 41, Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All N.L.R. 224; Senator Adesanya v. The President of the Federal Republic Nigeria & Anor. (1981) 5 S.C.112; and Deputy Federal Commissioner of Taxation, New South Wales v. W.R. Morgan Proprietary Ltd. 61 C.L.R. 735 at p. 764 and 63 C.L.R. 338.

Chief Onyiuke's argument is that in order to invoke the jurisdiction of this Court the conditions provided under S.212 must be met. He said that the original jurisdiction of the Court is limited and as such any suit or claim brought under S.212 must on the face of it show that the Court has jurisdiction. He contended that the mere fact that there is non-compliance with the Constitutional requirements of law making by the National Assembly does not entitle the plaintiff to impeach the validity of the 1981 Act by asking that the Act be declared null and void. That is to say that the plaintiff cannot found its action on section 4(8) of the Constitution. He said that there must be a dispute between the plaintiff and the defendants. The originating summons shows that the plaintiff built up its case on the basis that non-compliance with the constitutional requirement for the passing of a bill into law gives the plaintiff the right to sue. He argued that the way that the questions in the originating summons are raised put it beyond doubt that the plaintiff's claim rests on the non-compliance with the constitutional requirements and that there is no question of the existence of legal right of the plaintiff or the extent of the legal right. By way of comparison, Chief Onyiuke referred to section 131 of the Indian Constitution and section 75 of the Constitution of the Commonwealth of Australia, and cited in support of his arguments the following cases-United Provinces Governor-General-in-Council v. Province of Madras (1943) 47 C.W.N. (F.R.3) p.3; Barmagh State v. Province of Bihar, A.I.R. (1949) F.C. 55; New South Wales v. Commonwealth, 46 C.L.R. 155 and New South Wales v. Commonwealth, 20 C.L.R. 54.

Chief Akinjide also submitted that the key-word in section 212(1) is "dispute" and that the manner in which the 1981 Act was passed creates no dispute between the plaintiff and the Federation.

In anticipation of the contention Chief Williams had earlier said that the distribution of revenue between the Federation and States and between the States and Local Governments affects the Bendel State and that is why it has brought this action. They have joined the Federation and the States because they all have interest in the distribution of the public revenue. Any decision in this case is bound to affect the Federation and the States and hence the necessity to join them in the action. In reply to the submissions of the learned Counsel for the defendants Chief Williams argued that it will be contrary to the rules of natural justice and the provisions of section 33 of the Constitution not to join the other states whose interest will be affected by the decision in this case. He said that the plaintiff is complaining because it does not want to be paid whatever portion of the public revenue which is due to it under the provisions of a law which is void. The plaintiff wants the revenue given to it by the Federation under the 1981 Act to be legally enforceable; so that it can claim it as a matter of legal right and not otherwise. Since the plaintiff is for legality it is entitled to insist that the revenue that comes to it is in accordance with the provisions of the Constitution.

Section 33 of the Constitution which comes under the chapter on fundamental rights as relevant provides as follows-

"33- (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure independence and impartiality."

This right to fair hearing appears to have been given to a "person" and not state, authority or government. "Person" is defined under Section 18 of the Interpretation Act, 1964, which is applicable to the Constitution, to include body of persons whether corporate or incorporate but does not seem to accommodate "state", "authority" or "government" as defined by section 277 of the Constitution. With respect therefore I am of the opinion that the provisions of section 33 do not apply to the issue of jurisdiction raised by the defendants. It is a well established principle of the interpretation of constitution that words of a constitution are not to be read with stultifying narrowness-United States v. Classic, 313 U.S. 299 and Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at pp. 148-149. The word "dispute" in section 212(1) should therefore be given such meaning that will affectuate rather than defeat the purpose of that section of the Constitution. Webster's New Twentieth Century Dictionary 2nd Edition provides that "dispute" is synonymous with controversy, quarrel, argument, disagreement and contention. By the provisions of section 149 of the Constitution, Bendel State like all other states of the Federation is entitled to share in the Federation Account. It has in other words the legal right to receive revenue from the Federation Account. The National Assembly has purportedly passed a law in a manner and form which the plaintiff state is unhappy with. Therefore the state contends that the law in question infringes on its legal right under section 149. Surely it cannot be denied that the Bendel State has quarrel or disagreement or contention with the manner the National Assembly purported to have passed the 1981 Act and it is aggrieved by the application to the State, by the Federal Government, of the said Act. The dispute arose naturally only after the Act was assented to by the President. That is after the Act purportedly became law. The avenue therefore available to the plaintiff is to challenge the action of the National Assembly in passing the law and to seek to declare as void the provisions of the Act with which it is not happy. It is on these premises that I am of the opinion that from the practical point of view there is a dispute between the plaintiff and the National Assembly as well as the Federation. There is indeed no open dispute between the plaintiff and the remaining States but even that can be inferred between the plaintiff and those States among the defendants who are or may be said to be happy with the 1981 Act. Apart from this, there is the established rule of practice mentioned by Chief Williams that any party that might be affected by the decision of the Court in a suit ought to be joined. It is therefore proper to join the States that are satisfied with the manner and form the 1981 Act was enacted even though there is no apparent dispute between them and the plaintiff.

The issue of estoppel was founded by the 1st defendant on the counter-affidavit sworn to on his behalf by Mr David Omotade. Paragraph 7 of the counter-affidavit reads:

"With reference to paragraph 6 of the aforesaid affidavit, the 1st defendant says that the bill has become law since the 1st day of January, 1981, and it is the Act of the National Assembly under which the revenue in the Federation Account is already being shared among the Governments of the Federation of Nigeria, all the States Governments including Bendel State Government and all the Local Governments for the purpose of discharging their respective responsibilities under the Constitution."

Chief Akinjide argued that a plaintiff who takes benefit under a statute cannot challenge the constitutionality of the statute. He submitted that the plaintiff by virtue of receiving revenue from the Federation Account paid out by the Federal Government in accordance with the provisions of the 1981 Act is estopped from impugning the validity of the Act. He also contended that the doctrine of estoppel is mutual and that it applies to both the state well as to individuals; and relied on a number of cases in support of his submissions. These are: Robertson v. Minister of Pensions (1948) 2 All E.R. 767 at p. 770; Clark General Treasurer etc. & Anor. v. Barnard & Ors. 108 U.S.; R.B., Parden, etc. v. Terminal Railway of the Alabama State Docks Department etc., 377 U.S. 184; State ex rel Shell Oil Co. Inc. v. Register of State Land Office, 192 Southern Report 519 at pp. 520-521; Great Falls Manufacturing Co., etc. v. Garland, A-G etc. 124 US 581, Wall v. Parrot Silver & Cooper Co., 244 U.S. 407; and St. Louis Malleable Casting v. George, etc. 260 U.S. 469.

In reply Chief Williams said that the issue in this case is whether the National Assembly and the President have carried out the requirement of the Constitution. He submitted that if they have not they cannot avoid the consequences of their failure by pleading estoppel. He said that legislative powers are conferred on them by the Constitution for public benefit and therefore estoppel cannot operate to relieve them of their constitutional duties. If estoppel is allowed to apply it will lead to the intolerable position of asking the court to sanction an illegality. He

submitted that estoppel will not apply where there is a duty to do something under the law. To buttress his argument he cited-Maritime Electric Co. Ltd. v. General Dairies Ltd. (1937) A.C. 610 at pp. 620-621; South Ottawa v. Parkins, 94 U.S. 260; Greenwood v. Martins Bank (1933) A.C. 51 at p. 57 and Laker Airways v. Department of Trade (1977) Q.B.D. 643.

It would appear that the case for the 1st defendant is that the plaintiff by its conduct in receiving revenue paid to it by the Federal Government is estopped from alleging that the 1981 Act, by virtue of which the payment was made, is unconstitutional. In its statutory form, estoppel is defined by section 150 of the Evidence Act, Cap 62. It states:

"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person's representative in interest to deny the truth of that thing." (The italic is mine).

The question is: did the plaintiff before receiving or by receiving revenue from the Federal Government intentionally led the Federal Government to believe that the 1981 Act was constitutionally valid? Also has the Federal Government made payment to the plaintiff because the plaintiff made it to believe that the 1981 Act was valid? There is no evidence whatsoever before us from which these questions can be answered in the affirmative. Rather is seems, from paragraph 7 of the counter-affidavit quoted above, that the Federal Government made the payment to Bendel State and the other States of the Federation not on any representation by the plaintiff but in observance of the provisions of the 1981 Act. Apart from this, even if the 1981 Act does not apply the plaintiff is entitled to receive revenue from the Federal Government under Section 272 of the Constitution, and by virtue of which it is also mandatory on the Federal Government to pay out such revenue to the plaintiff. It follows that in the present case any representation deemed to have been made by the plaintiff in the act of receiving revenue cannot be free from ambiguity. It is settled that no estoppel will issue where there is uncertainty in the allegation of representation: Low v. Bouverie (1891) 3 Ch. 82 and Territorial and Auxiliary Forces Association of the County of London v. Nicholas, (1949) 1 K.B. 35 at p. 50.

I am therefore of the opinion that estoppel has not been established against the plaintiff and I so hold.

The question of waiver was raised by Chief Akinjide simultaneously with the issue of estoppel. There is therefore overlapping in some of the authorities cited by him in support of each question. He relied upon the following United States authorities to show that a state can waive any right given to it by a statute: Clark, General Treasurer etc. v. Barnard and Ors. 108 U.S. 436, and R.B. Parden etc. v. Terminal Railway of the Alabama State Docks Department, etc. 377 U.S. 184. Chief Akinjide's contention is that the plaintiff had a choice of election to either accept revenue from the Federal Government according to the provisions of the 1981 Act or refuse such revenue and come to Court to challenge the validity of the 1981 Act. But it could not do both, that is approbate and reprobate or blow hot and cold. Chief Akinjide cited Fahey etc. v. Mallonee, etc. 322 U.S. 245 where it was stated that "court will not pass upon the constitutionality of a statue at the instance of one who has availed himself of its benefits"; and also The State of Wyoming on the Relation of Fire Fighters Local, etc. v. Herbert Kingham, etc. 420 Pacific Reporter 2nd Series, 254 at pp. 256-257; City of Austin v. Williams, 440 South Western Reported 2nd Series 115; and United Fuel Gas Co., etc. v. Railroad Commission of Kentucky, 278 U.S. 390.

For the doctrine of waiver to apply the plaintiff must be put to his election. The election urged upon us would appear to be that the plaintiff should have refused revenue from the Federal Government paid from the Federation Account since it intended to challenge the constitutionality of the 1981 Act. It is a matter of common knowledge that the bulk of the revenue of the states comes from the Federation Account. The effect therefore of the plaintiff electing not to receive such revenue would result in the machinery of its government grinding to a halt. Undoubtedly, if this step had been taken it would not have been in the best interest of the people of Bendel State. So that of necessity the plaintiff was compelled to accept the revenue. It is manifest that the plaintiff's choice not being optional was no choice at all. An election cannot rest upon equivocal conduct. The election must amount to clear demonstration of a choice between two alternatives, one being chosen to the necessary exclusion of the other: Lokshmijit v. Sherani, (1973) 3 All E.R. 737 at p. 744.

It is pertinent here to refer to the observation of Lord Wright, on the rule or maxim of approbate and reprobate, made in the House of Lords in Lissenden v. C.A.V. Bosch, Ltd., (1940) 1 All E.R. 425 at p. 441-

"A more doubtful, but still not infrequent, use of the formula is in cases of common law election where there is a choice between alternative and inconsistent remedies-for instance, between charging a defendant in tort and charging him for money had and received, or between charging the principal and charging the agent. In these latter cases the alternatives are mutually exclusive. In the cases of equitable election, the conscience of the defendant is affected, because, in the language of Lord Cairns, L.C. ... it would be inequitable that he should-

"accept a benefit under the instrument without at the same time conforming to all its provisions, and renouncing every right inconsistent with them."

It is, in my judgment impossible to apply any such idea to the present case. The appellant was doing nothing inequitable or inconsistent. In taking the moneys which the respondent sent him in satisfaction of the sums actually awarded, he was exercising a legal right to be paid what was admittedly due to him. In serving his notice of appeal, he was exercising another and independent legal right-namely, the right to claim that the award should be reversed or varied in part, because it did not give the further relief to which he claimed to be entitled. I cannot see how the maxim or formula in any judicially recognised meaning can apply to this case. There is no question here of alternative or mutually exclusive rights between which the appellant had to choose."

Similarly the plaintiff by virtue of Section 272 of the Constitution has a legal right to receive revenue from the Federation Account irrespective of the invalidity of the 1981 Act. In the circumstances of this case I am not therefore persuaded by the decision in Fahey, etc. v. Mallones, etc. (supra) and the other cases cited by Chief Akinjide.

It follows therefore that in my opinion, the plaintiff has not waived its right to sue by virtue of its receiving the revenue allocated to it by the Federal Government under the terms of the 1981 Act.

In the result the action succeeds. I will therefore enter judgment for the plaintiff by answering the questions posed and granting as well as refusing the claims in the same terms and manner as my learned brother, the Chief Justice of Nigeria. I will also make no order as to costs.

Nigeria LII

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