ATTORNEY-GENERAL OF LAGOS STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2003)

Background

This constitutional dispute arose from an alleged conflict between the Lagos State Government and the Federal Government concerning control of urban and regional planning in Lagos State. Lagos relied on its existing planning laws, master plans and planning authorities, including the Town and Country Planning Law, the Building Lines Regulation Law and the Land Development (Provision for Roads) Law. It complained that Federal agencies, particularly the Federal Ministry of Works and Housing and the National Inland Waterways Authority, had issued development approvals, permits and licences without obtaining the consent of Lagos State.

The Federal authorities relied substantially on the Nigerian Urban and Regional Planning Decree No. 88 of 1992, later redesignated as an Act. The Decree established federal, state and local planning structures and regulated development approvals, enforcement notices, stop-work orders, demolition, compensation and planning tribunals. It had been enacted during military rule, when the Federal Military Government possessed power to legislate on virtually any subject throughout Nigeria. After the 1999 Constitution came into force, however, the question was whether the Decree could continue to operate as a valid federal enactment.

Issues

1. Whether urban and regional planning and physical development control are legislative matters.
2. Whether those matters fall within the legislative and executive competence of the Federal Government or are residual matters reserved to the States.
3. Whether the specified provisions of Decree No. 88 of 1992 were inconsistent with section 4 of the 1999 Constitution.
4. Whether Federal ownership of land situated within a State carried with it general planning and development-control powers.
5. Whether existing Federal approvals and permits in Lagos could be declared void or revoked without joining the beneficiaries of those approvals.

Ratio Decidendi

By a majority consisting principally of Uwaifo, Onu, Kalgo and Ejiwunmi JJSC, the Court held that urban and regional planning is a legislative subject, but it is not included in either the Exclusive Legislative List or the Concurrent Legislative List of the 1999 Constitution. It is therefore a residual matter within the exclusive legislative competence of the State Houses of Assembly under section 4(7). The National Assembly has a corresponding residual competence in relation to the Federal Capital Territory by virtue of sections 299 and 4 of the Constitution.

The Court rejected the argument that section 20 of the Constitution, which requires the State to protect and improve the environment and safeguard Nigeria’s water, air, land, forests and wildlife, authorised the Federal Government to enact a comprehensive town-planning regime for the States. The majority distinguished environmental protection legislation, such as the Federal Environmental Protection Agency legislation, the Harmful Wastes Act and environmental-impact-assessment legislation, from physical planning legislation that determines the layout, zoning and development of land. Section 20 could support federal environmental standards and regulation, but not a general federal takeover of State planning functions.

Decree No. 88 of 1992 was held to be an “existing law” under section 315 of the Constitution. Nevertheless, its provisions had to be read or modified so as to conform to the constitutional division of powers. Provisions imposing planning duties on State and Local Governments, establishing State Boards and Local Planning Authorities by federal command, and regulating development control within the States were unconstitutional to the extent of their application outside the Federal Capital Territory. The Court applied the constitutional supremacy principle in section 1(3), while declining to invalidate portions that could validly operate in relation to the Federal Government or the Federal Capital Territory.

Court Findings

The Court further held that Federal ownership of land in a State does not confer general immunity from State planning laws. Ownership under the Land Use Act gives title, possession and the right to use the land for governmental purposes, but does not authorise the Federal Government to impose its own general planning regime or disregard the planning laws of the State. Federal agencies may exercise powers strictly connected with their statutory functions—for example, railway infrastructure, airport facilities, navigation works, highway structures or other operational installations—but those powers cannot be enlarged into general control over land development.

The majority granted the first four declarations sought by Lagos State. It declared that urban and regional planning and physical development were residual State responsibilities; that the specified provisions of Decree No. 88 of 1992 were unconstitutional to the extent stated; that the Federal Highways Act, Nigerian Railway Corporation Act, Civil Aviation Act and National Inland Waterways legislation were limited to their specific statutory purposes; and that general building approvals and development-control functions in Lagos belonged to the State.

Reliefs seeking the wholesale nullification or revocation of approvals granted since 1 June 1999 were refused. The beneficiaries of those approvals were not parties and could not be deprived of their interests without being heard. A perpetual injunction was also refused because it was too broad and could improperly interfere with valid statutory powers of Federal agencies in particular cases. Each party was ordered to bear its own costs.

Dissenting Opinions

Uwais CJN, Ayoola and Tobi JJSC dissented in important respects. They considered that environmental protection and the safeguarding of land under section 20 could rationally include the use of planning legislation as an instrument of environmental policy. They maintained that the Constitution should be interpreted according to its text and that courts should not replace constitutionally authorised federal arrangements with their preferred theory of federalism. Although they accepted that particular provisions of the Decree imposing excessive duties on States might be invalid, they rejected the broad declaration that urban and regional planning was exclusively a State subject.

Significance

The decision is a leading Nigerian authority on residual legislative powers, constitutional federalism and the treatment of military-era enactments after the return to democratic government. It confirms that the Federal Government cannot use a general or incidental statutory power to assume functions constitutionally reserved to the States. At the same time, it recognises that Federal agencies may carry out narrowly defined operational functions under valid legislation, provided those functions do not become a substitute for general State planning control. The case also illustrates the limits of declaratory and injunctive relief where absent third parties hold potentially affected rights.