Attorney-general Of Ondo State V. Attorney-general Of The Federation & Ors (2002)
LAWGLOBAL HUB Lead Judgment Report
L. UWAIS, C.J.N.
By order 3 rule 2 (2) of the Supreme Court Rules, 1985 civil proceedings in the original jurisdiction of this court may be commenced by inter alia filing originating summons. Order 3 rule 6 (1) of the Supreme Court Rules, 1985 as amended, also permits any party claiming any legal or equitable right, the determination of which depends on the construction of the constitution or any other enactment, to begin proceedings by causing an originating summons to issue.
In exercise of the provisions of the aforementioned rules on behalf of the government of Ondo State, the plaintiff brought this action against the Attorney-General of the Federation and the Attorneys-General of the 35 states comprising the Federal Republic of Nigeria, as representatives of the federal and their states government respectively. The plaintiff applies for the determination of the following questions:
“1. A determination of the question whether or not the Corrupt Practices and Other Related Offences Act, 2000, is valid and as a law enacted by the National Assembly and in force in every state of the Federal Republic of Nigeria (including Ondo State).
- A determination of the question whether or not the Attorney-General of the Federation (1st defendant) or any person authorised by him can lawfully initiate legal proceedings in any court of law in Ondo State in respect of any of the criminal offences created by any of the provisions of the said Corrupt Practices and Other Related Offences Act, 2000.
- A declaration that the Corrupt Practices and Other Related Offences Act, 2000, is not in force as law in Ondo State.
- A declaration that it is not lawful for the Attorney-General of the Federation (1st defendant) or any person authorised by him to initiate legal proceedings in any court of law in Ondo State in respect of the criminal offences purported to be created by the provisions of the Corrupt Practices and Other Related Offences Act, 2000.
- An order of perpetual injunction restraining the Federal Government, its functionaries or agencies whomsoever (including the Independent Corrupt Practices and Other Related Offences Commission) or howsoever from executing or applying or enforcing the provisions of the Corrupt Practices and Other Related Offences Act, 2000 in Ondo State whether by interfering with the activities of any person in Ondo State (including any public officer or functionary or officer or servant of the government of Ondo State) in exercise of powers purported to be conferred by or under the provisions of the said act or otherwise howsoever.
- An order of perpetual injunction restraining the Attorney-General of the Federation including his officers, servants and agents whomsoever or howsoever from exercising any of the powers vested in him by the constitution of the Federal Republic of Nigeria, 1999 or by any other law in respect of any of the criminal offences created by any of the provisions contained in the Corrupt Practices and Other Related Offences Act, 2000”
On 22nd January, 2002 the parties were directed by the court to file briefs of argument within a given time. The plaintiff complied on 12th February, 2002. The 1st defendant as well as the 2nd, 4th,7th, 8th, 11th, 12th, 14th, 17th, 19th 23rd, 25th, 27th, 28th, 30th, 31st and 32nd defendants also filed their briefs on different dates in compliance with the direction. The other defendants failed to comply and therefore forfeited the right to address us.
The court had also invited Professor B. O. Nwabueze, SAN, Chief Afe Babalola, SAN and Olisa Agbakoba, SAN as amici curiae and they each filed briefs of argument.
At the hearing of the case, which took place on the 12th and 13th March, 2002 following parties were not represented – 5th, 6th, 9th, 13th, 15th, 16th, 18th, 20th, 22nd, 24th, 26th, 29th, 33rd and 35th defendants.
Chief Williams, learned senior advocate for the plaintiff, formulated the following issues in the plaintiff’s brief of argument for us to determine:
“(i) Whether the Corrupt Practices and Other Related Offences Act, 2000, is a law with respect to a matter or matters upon which the National Assembly is empowered to make laws for the peace, order and good government of Nigeria under the 1999 constitution of the Federal Republic of Nigeria.
(ii) Further and in the alternative to question (i), whether the National Assembly has power to make laws for the peace, order and good government of the Federal Republic of Nigeria with respect to the criminal offences contained in the Corrupt Practices And Other Related Offences Act, 2000.
(iii) Whether the Attorney-General of the Federation or any person authorised by the Independent Corrupt Practices And Other Related Offences Commission can lawfully initiate or authorise the initiation of criminal proceedings in any court of law in Ondo State in respect of any of the criminal offences created by any of the provisions of the said Corrupt Practices and Other Related Offences Act, 2000.
(iv) Whether all the powers conferred on the Independent Corrupt Practices And Other Related Offences Commission or on other functionaries or agencies of the Federal Government by the Corrupt Practices And Other Related Offences Act, 2000 are exercisable in Ondo State in relation to the activities of any person in that state (including any public officer or functionary or officer or servant of the government of Ondo State).”
The following defendants have adopted in their briefs of argument the plaintiff’s case in its entirety – 2nd, 4th, 12th, 17th, 25th, 28th, 30th and 32nd, in stating the facts relevant to this suit. Chief Williams said that the claims of the plaintiff are based upon the fact that the Corrupt Practices and Other Related Offences Act 2000, No.4 of 2000 (hereinafter referred to as “the Act”) contains provisions concerning several matters, including punishable offences, with respect to which it is the House of Assembly of Ondo State that is vested with the powers to make laws and not the National Assembly. He referred to the explanatory memorandum, at the end of the act, which reads as follows:-
“The act seeks to prohibit and prescribe punishment for Corrupt Practices and Other Related Offences. It establishes an Independent Corrupt Practices and Other Related Offences Commission vesting it with the responsibility for investigation and prosecution of offenders thereof. Provision has also been made for the protection of anybody who gives information to the commission in respect of an offence committed or likely to be committed by any other person.”
The plaintiff’s action, as already seen, is brought to challenge the constitutionality of the act and to seek the reliefs aforementioned.
In arguing the plaintiff’s issue no. (i) as contained in his brief of argument and quoted above, Chief Williams, stated that the plaintiff is aware that the case of the 1st defendant is that the power of the National Assembly to enact the act is derived from the provisions of sections 4(2), 15(5), of the constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as “the 1999 constitution”), items 60(a), 67, 68 of the exclusive legislative list in part 1 of the second schedule to the 1999 constitution and paragraph 2(a) of part III of the second schedule.
Learned senior advocate referred to item 60 (a) in the exclusive legislative list and argued that it is the provisions therein that enable the National Assembly to make law for the establishment and regulation of authorities for the purpose of promoting and enforcing the observance of the fundamental objectives and directive principles contained in chapter II of the 1999 constitution.
That item 60(a) does not vest the National Assembly with the duty to promote and enforce the observance of the directive principles nor does it confer on the National Assembly the power to create offences generally on corrupt practices and related offences by any or every person. He submitted that it cannot have been the intention of the 1999 constitution to confer exclusive power on the National Assembly with respect to Corrupt Practices and Related Offences. And argued that if this were intended section 15(5) of the 1999 constitution would not have provided as follows:-
15(5) – The state shall abolish corrupt practices and abuse of power.”
Learned counsel referred to the definition of the word “state” in section 15 subsection (5) by drawing attention to 318 subsection (1) of the 1999 constitution which provides that the word “state” includes the federal government or government of any state or local government council any person who exercises power or authority on its behalf, to buttress his submission that the National Assembly is not vested with exclusive legislative power to make laws with respect to corrupt practices and related offences.
He referred to the provisions of sections 4 subsection (2)13, 15 subsection (5), items 60(a), 67 of the exclusive legislative list and paragraph 2 (a) of part III of the second schedule of the 1999 constitution and cited page 95 of the work of Professor B. O. Nwabueze -Federalism in Nigeria under the Presidential Constitution as well as the case of Balewa v Doherty, (1963) 1 WLR 949 at page 96 and pages 97-98; and Canadian Pacific Ry. Co. v A-G. for British Columbia & Anor (1950) A.C. 122 at pp. 136 – 137 to urge upon us to hold that the answer to question no. (i) of the plaintiff’s issues for determination is in the affirmative, that is, that the act is not a law with respect to a matter or matters upon which the National Assembly can make laws. Or to hold in the alternative that question no. (ii) thereof should be answered in the negative, that is that the National Assembly has no power to make laws with respect to the criminal offences contained in the act.
With regard to issue no. (iii), learned senior advocate, submitted that the answer is simply that the Attorney-General of the Federation or any person authorised by the Independent Corrupt Practices and Related Offences Commission (hereinafter referred to as “ICPC”) can only initiate or authorise the initiation of criminal proceedings in any court of law in Ondo State, in respect of any of the criminal offences created by the provisions of the act, only if the act is validly enacted. He urged us to answer question no. (iii) in the negative.
On issue no. (iv), Chief Williams canvassed that not all the powers and functions conferred on the ICPC under the act are constitutional and valid. He referred to sections 6(a), 26(3), 28, 29, 35 and 37 of the act as such and argued thus –
“Section 6(a) imposes on ICPC a duty to receive and investigate report and prosecute any person for offences under the act.
Section 26 subsection (3), which provides that the prosecution of an offence before a court and judgment shall be delivered within 90 working days of the commencement of the prosecution is an usurpation of judicial functions or power by the National Assembly.
Sections 28 and 29 which confer powers exercisable over any person whether or not such person is exercising governmental functions.
Section 35 which empowers ICPC to arrest and detain any person who having been served with a summons and defaulted to appear, until the person complied with the summons.
Section 37, which confers on any officer of the ICPC, who has reasonable grounds to suspect that any moveable or immoveable property is the subject matter of an offence or evidence relating to the offence, may seize such property.”
Learned senior advocate concluded his argument by canvassing that the whole of the act ought to be invalidated.
I do not deem it necessary to deal with the arguments by the defendants aforementioned who have associated themselves with the plaintiff’s case as such arguments merely repeated or at best place emphasis on the submissions made by the plaintiff. I shall however advert to contentions of the other defendants who are really in opposition to the plaintiff’s case.
In reply the 1st defendant contends in his brief of argument that although the exclusive legislative list in the 1999 constitution, does not contain corruption as an item. The constitution provides for “corruption” under item 68 of the exclusive legislative list which mentions “any matter incidental or supplementary to any matter mentioned in the exclusive legislative list.” Therefore, by virtue of section 10 of the Interpretation Act. Cap. 192 the National Assembly is vested with the necessary powers to stop corruption or to do anything incidental to check it. Chief Kumuyi. Ag. director of civil litigation. submitted that section 15 subsection (5) read together with section 88 subsection (2) (a) and (b) and paragraph 2 of part III of the second schedule to the constitution gives the National Assembly the power to create offences under the act as such offences are incidental and supplementary matters. He argued that by the provisions of item 60(a) of the exclusive legislative list, the National Assembly is empowered to make laws for the establishment and regulation of authorities to promote and enforce the observance of the fundamental objectives and directive principles contained in chapter II of the 1999 constitution. That the word “enforce” is defined in Black’s Law Dictionary, 6th Edition at page 528 to mean “to put into execution, to cause to take effect, to make effect to compel obedience to.” The 1st defendant canvassed that when item 60(a) is read together with section 4 subsection (2) of the constitution, they not only impose a duty on the federal government to abolish all corrupt practices and abuse of power but also impose the duty of making law through the National Assembly for that purpose.
Next he argued that the word “state” in sections 14 and 15 subsections (1) to (5) inclusive of the 1999 constitution means, in the light of section 318 subsection (1) of the constitution of the Federal Republic of Nigeria. It alternatively also means federal, state and local governments. Therefore the National Assembly which is one of the three arms of the federal government acted ultra vires when it enacted the act pursuant to section 15 subsection (5) of the 1999 constitution.
On the powers of the Attorney-General of the Federation to initiate prosecution in any State of the Federation, reference was made to the provisions of section 174 subsection (1) (a) of the constitution and it was submitted that the Attorney-General of the Federation is competent to prosecute the contravention of any offence created by or under any act of the National Assembly including the act in question. Finally the 1st defendant submitted that the provisions of sections 6(a), 26(3), 28, 29 and 35 of the act are valid by reason of the fact that the sections had been enacted pursuant to the powers vested in the National Assembly by the relevant provisions of the constitution.
The 7th defendant submitted that the National Assembly has powers under section 4 of the constitution to make laws for the peace, order and good government of the federation. That such powers are however limited by the items in the exclusive legislative list contained in part 1 of the second schedule to the constitution and some of the items under the concurrent legislative list. The case of A.G. of Ogun State v A.-G. of the Federation, (2000) 2 WRN 52 at p. to 57 was cited to show that the federation has no power to make law on residual matters. That is matters which do not fall under either the exclusive or the concurrent legislative list in the constitution. The defendant submitted that the National Assembly acted rightly when it enacted the act for the purpose of abolishing corrupt practices and abuse of power in view of the provisions of section 15 subsection (5) of the constitution. However, it is argued that the power of the National Assembly to establish the ICPC cannot be extended or widened to empower the National Assembly to create offences in relation to corrupt practices in the federation or any part of the federation. Attention is drawn to the decision of this court in Anyebe v The State, (1986) 2 NWLR (Part 14) 39 where it was held that a federal offence cannot be prosecuted in any state of the federation without the fiat of the Attorney-General of the Federation; and conversely, it is submitted that the offences of corruption which are contained in the criminal code of Ondo State, 1976 cannot be prosecuted by ICPC without the fiat of the Attorney-General of Ondo State.
The 7th defendant agreed with the argument by the plaintiff that the powers of the ICPC cannot be exercised in relation to the functionaries of Ondo State government or persons in the public service of Ondo State. The case of A-G. of Ogun State v. A-G. of the Federation (supra) as per Eso, JSC was cited in support. The defendant then urged upon us to strike down the provisions of the act, which are constitutional, on the authority of the case of Nafiu Rabiu v. The State (1981) 2 NCLR 293 at p. 326 per Udoma, JSC.
On the validity of the act, the defendant cautioned that this court must resist the invitation by the plaintiff to strike down the act as a whole. He argued that since section 15 subsection (5) of the constitution empowers the Nigerian state to abolish all corrupt practices and abuse of powers, we can only declare invalid those provisions of the act which are found to be unconstitutional. It is submitted that a law can only be declared invalid as a whole if the process or mode of enacting it is illegal – see A-G. of Bendel State v. A.-G. of the Federation (1982) 3 NCLR 1. However, it is contended, that where it is only a section or sections of the law that are found to be unconstitutional, it is the section or sections that are held to be invalid to the extent of their inconsistency with the constitution in accordance with section 1 subsection (3) thereof.
The 8th defendant submitted that the combined effect of section 4 subsection (2) and items 60 (a) and 68 of the exclusive legislative list and paragraph 2(a) of part III of the second schedule, all of the constitution, is that the National Assembly has the power to enact the act and the power to create the offences under the act.
The 11th defendant submitted that by virtue of the provisions of sections 4 subsections (1), (2) and (4) (b), 13, 15 subsection (5), items 60 (a), and 68 of the exclusive legislative list, all of the 1999 constitution and the decisions in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria, (1981) 2 NCLR 358 at 374 paragraphs 6 -7 per Fatayi-Williams, CJN and Nafiu Rabiu’s case (supra) at p. 326 per Udoma, JSC; the National Assembly had the power to enact the act. The defendant made reference to sections 2 subsection (1) and (2), 3 subsection (1), 5 subsections (1) and (2),169 -175 and 206-212 of the constitution to submit that the responsibility to enforce the fundamental objectives and directive principles of state policy is a collective responsibility of both the federation and the states. The case of Atolagbe v Awuni, (1997) 9 NWLR (Part 522)536 at p. 609 C-E was cited.
It is finally submitted that the Attorney-General of the Federation can competently prosecute in a state or the Federal Capital Territory the offences committed under the act but that such prosecution is only with respect to public officers in the public service of the federation.
The 14th defendant submitted that the constitution vested on the National Assembly unfettered powers to legislate on corrupt practices and abuse of power. It is argued that the power of the National Assembly is not, by virtue of item 60(a) of the exclusive legislative list, limited to making law for the establishment and regulation of authorities for the federation or any part thereof but it further gives the National Assembly powers to promote and enforce the observance of the fundamental objectives and directive principles amongst which is the abolishing of all corrupt practices and abuse of power in Nigeria. It is submitted finally, that the act is consistent with the aim of the constitution to wipe out corrupt practices.
The 19th defendant argued that the provisions of sections 6 (a), 26 subsection (3),28,29,35 and 37 are valid and constitutional. He submitted that section 26 subsection (3) is not a usurpation of judicial powers of courts by the National Assembly and argued that the provisions were meant to encourage speedy trial by court of offences created by the act. That in any case the limitation has been rendered ineffective where good grounds for delay in delivering judgment exist.
The 23rd defendant submitted that sections 6 (a), 26 subsection (3),28,29,35 and 37 are valid and constitutional since none of the sections contravenes any provision of the 1999 constitution.
The 27th defendant submitted that the creation of criminal offences under the act is ancillary and supplemental to the constitutional capacity and powers of the National Assembly to make laws for the establishment and regulation of the ICPC to abolish corrupt practices and abuse of power.
In conclusion the defendant contended that some of the provisions of the act are in direct conflict with the provisions of the 1999 constitution and are to that extent null and void.
The 31st defendant argued that by the provisions of section 15 of the constitution when read as a whole together with those of section 318 thereof the intendment of the constitution is that the federal as well as states and local governments are empowered under section 15 subsection (5) to abolish all corrupt practices and abuse of power. It is submitted that this does not mean that the power of the National Assembly is limited to the establishment and regulation of authorities only. Reference was made to paragraph 2 (a) of part III of the constitution, items 60 (a), 67 and 68 of the exclusive legislative list to submit that the National Assembly has a general power to make laws with respect to corrupt practices and abuse of office. Therefore its power to legislate cannot be limited to matters that are incidental and supplemental to the abolishment of corrupt practices and abuse of power. The defendant urged us to distinguish this case from Balewa v. Doherty (supra) and to adopt the comment on the case on page 96 of Federalism in Nigeria under Presidential Constitution by B. O. Nwabueze, cited by the plaintiff.
On issue no. (iii) pertaining to the prosecution of criminal offences, the defendant submitted that in so far as the answer to issue no. (i) is in the affirmative so also should the answer to the issue be in the affirmative. Therefore, he urged upon us to hold the act is validly enacted by the National Assembly and that the Attorney-General of the Federation or any person authorised by the Independent Corrupt Practices and Other Related Offences Commission, can initiate criminal proceedings in any court of law in Ondo State for the prosecution of any offence under the act.
Professor B. O. Nwabueze, learned senior advocate of Nigeria, opened his submission by stating that the task before this court in determining the validity or otherwise of the act is most challenging because the issue impinges on the cardinal principles of Nigeria’s federal system. He referred to the provisions of the act in general in relation to the autonomy of state governments vis-a-vis the federal government and argued that the provisions of the act clearly impinge upon the three requirements of the autonomy of the state governments, which firstly carries the notion of equality of status, as each government has, by virtue of its independent existence, an equal status as a government with the other governments and is entitled to an equal say, though not necessarily equal weight, in the common councils of the federal state. However, federalism accommodates a certain amount of inequality in powers and financial resources between the national and regional governments, so long as any preponderance in favour of one is not such as to reduce the other to virtual impotence. He submitted that the conception of federalism as implying a dualism between two equal and competing sovereignties, gives a misleading picture since federalism accommodates a certain amount of inequality in powers and financial resources between the federal and regional governments.
Secondly, the principle of autonomy in a federal system implies that neither the central government nor the regional governments can confer functions or impose duties on the functionaries of the other without the consent of its chief executive as was expressly enacted in sections 99 and 100 of the constitution of the Federal Republic of Nigeria, 1963. He submitted that although the same provision are not made in the 1979 and 1999 constitutions, the 1963 prohibition still remains applicable as a necessary implication of the autonomy of the federal and state governments in relation to each other. He cited the case of A-G. of Ogun State & Ors. v. A-G. of the Federation & Ors (1983) 3 NCLR 583, where the prohibition was applied by this court in relation to the 1979 constitution as per Fatayi-Williams, CJN and Udo Udoma and Idigbe, JJ.S.C.
Thirdly, the principle of autonomy prohibits one government, while keeping within its power, from exercising it in a way as, in its practical effect, impedes, burdens or interferes with the exercise of the power or the management of the affairs of another government. This is the doctrine of non-interference which was affirmed as a requirement of our federal system in the case of the Federal Minister of Internal Affairs & Ors. v Shugaba, (1983) 3 NCLR 915 per Nasir, PCA. The Australian cases of Malbourne Corporation v. Commonwealth, (1947) 74 C.L.R. 31 at pp. 82 – 93; R v. Commonwealth Court of Conciliation and Arbitration, ex parte Victoria (1942) 66 CLR 488 and the American case, New York v. United States, (1946) 326 U.S. 572 at p. 587 were cited also in support.
With regard to the act, learned senior advocate stated that it raises the question whether the federal government has the power under the constitution to punish corruption, fraud and related offences by the enactment of such a general law. He stated that the creation and punishment of offences is undoubtedly a most complex aspect of the division of powers under our federal system and argued that under our constitution, it is largely residual matters, since it is not assigned to the federal government either in the body of the constitution or in the legislative lists in the second schedule to the constitution. There are however a few exceptions to this, he admitted. He submitted that the point to be especially noticed is that corruption, fraud and allied offences fall within the category of ordinary offences and being therefore a residual matter, their creation and punishment belong exclusively to the state governments, subject of course to the exceptions mentioned.
Learned senior advocate contended that the exceptions fall into three categories. Firstly, offences against the Nigerian state or the federal government, its agencies, functionaries or property, which are unquestionably within its power to punish. See R v. Kidman, (1915) 20 CL.R. 425. Secondly, offences against safety and public order by virtue of the power of the National Assembly under section 11 of the 1999 constitution. This is a source of federal offences of the ordinary type, but he argued that, the provisions of the section do not provide any authority whatsoever for the offences created by the act. Thirdly, offences created with respect to matters on the exclusive and concurrent legislative lists. He referred to item 68 thereof of the exclusive legislative list and the definition of incidental and supplementary matters in paragraph 2 (a) of part III of the second schedule to the constitution which provides for the creation of offences. He posed the question whether the creation of offences in relation to the 66 items on the exclusive legislative list and the matters on the concurrent legislative list exist as an independent power or only an incidental power. He submitted on the authority of Balewa v. Doherty, that a matter does not become incidental to another matter merely by being closely connected with it; the matter must actually have been created or legislated upon before something else, like the creation of offences, can be said to be incidental to it. In other words, he argued, an incidental power in relation to the creation of offence implies no more than a power to punish violation of or non-compliance with the law. He argued further on the authority of R v. Kidman, (supra) per Griffith CJ and McCullock v Maryland, (1819) 4 Wheat 31, per Marchall, C.J. that the notion of law as a rule of conduct prescribed by a superior authority connotes provisions as to the consequences which are to follow from its infractions and such offences are known as technical offences.
Learned senior advocate, conceded that the federal government has power to punish for corrupt and fraud in relation not only to its property but also to all matters within its legislative competence. However, beyond this, he submitted that the rest of the offences in the act are ultra vires the federal government and therefore unconstitutional.
On the power to prosecute the offences created by the act, he argued that the act trenches on the state government’s power because it has usurped the power of the state in regard to the prosecution, trial and punishment of offences under state power. It is submitted that unlike the 1960 constitution, the 1979 and 1999 constitutions of the Federal Republic of Nigeria contain no provisions for inter-delegation of functions between the federal and state governments. Learned senior advocate argued that the act being subversive of the cardinal principles of federalism enshrined in the constitution, which provides for the autonomy of the state governments vis-a-vis the federal government and the division of powers between them, should be declared unconstitutional and void in its entirety since its good and the bad parts are so interwoven to make it impracticable or inexpedient to sever one from the other.
On the provisions of section 15 subsection (5) of the constitution and item 60(a) of the exclusive legislative list, learned counsel, submitted that section 15(5) must draw its meaning and effect from the character of the fundamental objectives and directive principles of state policy in chapter II of the constitution of which it is part. He argued that the provisions of the chapter are merely a declaration expressly made non-justiciable by the constitution itself in section 6 subsection (6) thereof, defining in the main the duties of state towards individual setting out the objective and principles according to how the powers conferred in other parts of the constitution are to be exercised. He contended that the fundamental objectives and directive principles of state policy do not themselves grant any power but only impose a non-justiciable duty on all organs of government and all authorities and persons exercising legislative, executive or judicial powers, to conform to, observe and apply the declared objective and principle one of which is to use their powers to abolish all corrupt practices and abuse of office. He submitted that the word “state” in section 15 (5) as defined, under section 318 of the constitution refers to not the federal government alone but to both the federal and state governments each within the limits of the powers assigned to it by the constitution. In other words, the divisions of powers between the federal and state governments under the constitution has to be read into section 15 subsection (5).
Learned senior advocate argued also that item 60 (a) of the exclusive legislative list must draw its meaning and effect from the character and purpose of the fundamental objectives and directive principles of state policy. Construed in that light, it does not, nor is it intended to, confer on the federal government power to create and punish offences outside its power to do so under other provisions of the constitution or power to derogate from the autonomy of the state governments. The words of item 60 (a) make this clear. He canvassed that the words seem clear enough that the only power conferred on the federal government by the item is power to establish and regulate authorities but not power to prescribe the functions of any authorities so established. The functions of the authorities so established are already prescribed and delimited by item 60 (a) and are to promote and enforce the observance of the fundamental objectives and directive principles. He submitted that the word “establishment” or the term “to establish” raises no difficulty of interpretation. To regulate an authority within the meaning of item 60 (a) does not certainly enable the National Assembly to confer upon itself the authority and powers which the National Assembly does not otherwise possess. To regulate an authority within the meaning of item 60 (a) it is submitted, simply means to prescribe its membership, quorum, procedure, finances and such other matters, but not its powers and functions, which are already defined in item 60(a) itself.
Learned senior advocate also contends that the observance of the fundamental objectives and directive principles of state policy is limited to “all organs of government and all authorities and persons exercising legislative, executive or judicial powers.” Thus any authorities established pursuant to item 60(a) cannot enforce against private persons the observance of the fundamental objectives and directive principles of state policy. Therefore, in so far as the offences created by the act are enforceable against private persons, they are ultra vires the powers of the National Assembly.
Chief Afe Babalola, learned senior advocate of Nigeria dealt at the beginning of his address with the attitude of both foreign and Nigerian courts to constitutional interpretation. On plaintiff’s issue no (i), he made reference to section 4 subsections (2), (3) and (4) of the constitution as well as paragraph 2 of part III to the second schedule to the constitution and submitted that the act was enacted by the National Assembly pursuant to its exclusive power to do so by virtue of the provisions of sections 4 subsections (2), (3) and (4); 15 subsection (5) and item 60 in part 1 of the second schedule to the constitution. He referred to items 67 and 68 of the exclusive legislative list and submitted that the National Assembly has the power to enact an act to establish the ICPC and to create offences with sanctions provided for contravening the offences. He cited in support the case of A-G. v. Great Eastern Rly (1880) 5 Appeal Cases 473 HL, where it was held that whatever is fairly incidental to the object established in a statute will, unless expressly prohibited, be intra vires. He referred to the definition of the phrase “incidental power” in Black’s Law Dictionary, 7th Edition, which states that it is a power that although not expressly granted must exist because it is necessary to accomplish the express power. He cited the case of International Shoe Co. v. Pinkins, 278 U.S. 261,73 L.ed. 495 where it was held that that which is implied in a constitution is as much part of it as that which is expressed. He therefore contended that the relevant provisions of sections 4, 15, items 60, 67 and 68 of the exclusive legislative list of the constitution which confer on the National Assembly the power to make laws for eradication of corruption must necessarily carry with them other powers not expressed but vital to their existence. He submitted that the act, being an enactment of the National Assembly aimed at giving effect to the provisions of section 15 subsection (5) of the constitution; and argued that the word “state” in the section means, in the con in which it is used, the federal government alone since in interpreting the provisions of a constitution all the provisions must be read together and not disjointly see Kalu v. Odili (1992) 5 NWLR (Part 240) 130 at p. 156. He therefore urged us to read the provisions of section 15 together as a whole. If this is done, he submitted, it will become obvious that by “state” in the section is meant the federal government and not the constituent states of the federation which are not in a position to effect all the provisions of section 15. He drew our attention to the opening words of section 318 subsection (1) of the constitution to further argue that the word “state” as used in sections 14 and 15 of the constitution can only apply to Nigeria as a state. In the alternative, if the word is to be considered as submitted by the plaintiff, that it applies to the federal, state and local governments, then all the governments would have concurrent powers to legislate on corrupt practices and abuse of power. He submitted that even under such circumstance the federal government could competently legislate to cover the whole field by virtue of the decisions in the case A.G. of Ogun State v. Aberuagba (1985) 1 NWLR (Pt. 3) 395 at p.469.
Learned senior advocate, contended that the decision in Balewa v. Doherty, (supra) that no offence can be created under an item relating to incidental power in the exclusive legislative list unless the creation of the offence is incidental or supplementary to some other matter which matter must have been in existence, does not apply to this case. This is so because the offences created under the present act are enacted pursuant to item 60 of the exclusive legislative list under which list the National Assembly is empowered to make laws on all items therein. That the power to make law with respect to a given matter is wide enough to embrace the creation of offences in relation thereto as a separate and independent exercise. He cited R v. Kidman (supra) in support. He submitted that it will be sterile and startling for the constitution to grant the National Assembly the power to make law on a matter without the power to create offences thereupon. He contended further that the duty or obligation imposed on the state in section 15 subsection (5) of the constitution to abolish corrupt practices and abuse of power carries with it, in law, a correlative power to carry out the duties; as it would be absurd to impose a duty on the state and deny it the power to discharge the duty. The constitution could certainly not have intended or manifested such absurdity. He referred to section 10 subsection (2) of the Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990 which reads:
“10(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”
He urged us to answer issue no (i) in the affirmative.
On issue no (ii) learned senior advocate canvassed that notwithstanding the general principle of state autonomy, it is settled law that a federal constitution can either expressly or by necessary implication permit derogation from the principle and withdraw any such power from the component states of the federation. To buttress the point he cited Twinning v. New Jersey, 211 U.S. 78; 53 L.ed. 29 S.Ct. and Hurtato v. California, 110 U.S. 516; L.ed. 4 S.Ct. 11. He stressed the point that there is no item in the concurrent legislative list of the 1999 constitution which enables State House of Assembly to make law for the establishment and regulation of authorities to promote and enforce observance of the fundamental objectives and directive principles as contained in chapter II of the constitution. Nor does the concurrent list contain any item with reference to incidental and supplementary matters. He, therefore, submitted that part III of the second schedule to the constitution is inapplicable to State House of Assembly. Therefore, since there is no express constitutional provision which vests states with the power to make law on corrupt practices and abuse of power, the question of interference with the autonomy of the state did not and could not arise. In effect, the federal government cannot interfere with a non-existent function or power of the states. He argued that the act has not conferred any powers or duties on any state functionary so as to bring such functionary within the investigatory or scrutinizing powers of the National Assembly. Accordingly, the facts of the case of A.G. of Ogun State & Ors. v A-G. of the Federation & Ors. (supra) are distinguishable from the facts of the present case he submitted.
On issue no (iii) learned senior advocate submitted that the Attorney-General of the Federation has constitutional power to prosecute, in any court in Nigeria, federal offences created by enactments made by the National Assembly, as has always been the case.
Mr. Olisa Agbakoba, learned senior advocate of Nigeria, drew attention to the fact that the section of the constitution under which the National Assembly enacted the act is not clear on the face of it. He stated that the predominant arguments, by counsel on this case, have proceeded on the assumption that the act was enacted pursuant to item 60(a) in the exclusive legislative list. He contended that this argument overlooked the fact that there is a correlation between corruption on the one hand and peace, order and good government on the other. He submitted as a matter of fact, endemic corruption in a polity signifies absence of good governance. Thus it can be argued that inherent in the general power of the National Assembly to make laws for the peace, order and good government of the federation or any part thereof, which is prescribed under section 4 of the constitution is the power to make laws for the eradication of corruption.
He said however, the problem posed by the act is that it deals with corruption and crime which are matters not on the exclusive legislative list nor in the concurrent legislative list. They are therefore residual matters on which only state governments should ordinarily have exclusive competence to legislate.
He conceded that this argument will make nonsense of section 4 subsection (2) and item 60 (a) on the exclusive legislative list in the constitution, which empowers the National Assembly to establish an anti-corruption commission.
Therefore he argued, this is the crux of the case. If we hold that the act is law made for the peace, order and good government of the federation or any part thereof or made for the regulation and establishment of an authority for the observance of the fundamental objectives and directive principles of state policy, then the validity of the act must be upheld. If we hold the contrary, then the act is invalid and must be struck down.
Learned senior advocate pointed out that this case is not concerned with the enforcement of rights under the Fundamental Objectives and Directive Principles of State Policy because the power to enforce provisions of the constitution is not vested in the legislature but in the executive. It is well established as per section 6 subsection (6) (c) of the constitution that rights under the fundamental objectives and directive principles of state policy are not justiciable except as otherwise provided in the constitution – see also the case of Okogie v. A-G. of Lagos State (1981) NCLR 2187.But this case is principally concerned with the power of the National Assembly to make law. He submitted that it cannot be argued that the power is vested in the legislature and it includes the power to make law in respect of matters under chapter II of the constitution. It cannot also be contended that power is derived from section 4 and not chapter II of the constitution. The only question to be answered is the extent and scope of the power under section 4 as between the National Assembly and State Houses of Assembly are with respect to matters on the legislative lists and any other matter not included in the lists but which it is empowered to make law under any other part of the constitution as provided by section 4 subsection (4) (b) thereof. He submitted that the relevant provision of the constitution in relation to this case is item 60(a) of the exclusive legislative list which provides for the establishment and regulation of authorities for the federation or part thereof to promote and enforce the observance of fundamental objectives and directive principles of state policy. Learned counsel referred to the provisions of section 13 of the constitution and canvassed that the duties and responsibilities stipulated therein are not to be exercised by every person or all organs of government or authorities but only those who exercise legislative, executive and judicial powers are affected. One of such duties is to abolish all corrupt practices and abuse of power as provided in section 15 subsection (5) of the constitution. He submitted that the provisions of the section will have no meaning unless they are interpreted in conjunction with other provisions of the constitution, that is section 2 subsection (2),4, 5, 6 and 318 of the constitution. When read with sections 2 (2) and 318, he submitted, the word “state” would mean both the federal and state governments and not federal government alone. Therefore the division of powers as provided under sections 4, 5 and 6 of the constitution will have to be read into section 15 subsection (5). He further contended that section 15 (5) is not a grant of power at all, but only a non justiciable directive to the federal and state governments as to how to exercise the powers already vested in them by other provisions of the constitution. He emphasised that section 15 (5) like all other provisions of chapter II of the constitution only imposes duties with respect to how vested powers are to be exercised. It does not confer power he argued. Therefore the authority established, under item 60 (a) of the exclusive legislative list, cannot be extended by the National Assembly to involve the enforcement of any provisions of the constitution that are not part of the fundamental objectives and directive of principles of state policy. The head title of the act reads – “An act to prohibit and prescribed punishment for Corrupt Practices and Other Related Offences.” It was argued that this clearly is outside the limit of item 60 (a); however the saving grace about the act is that its other provisions establish the ICPC which fall within the ambit of item 60 (a). It is argued that the extraneous matters contained in the act are ultra vires the National Assembly. These include provisions relating to offences and penalties in sections 8-26; power of investigation, search, seizure and arrest in sections 27-42; provisions relating to the chairman of the ICPC in sections 43-52; provisions pertaining to evidence in sections 53-60; prosecution and trial of offences in sections 61-63 and the general provisions in sections 66 – 71.
Learned senior advocate cited the case of Balewa v. Doherty (supra) and submitted that none of the offences created by sections 8-26 of the act are incidental or supplemental to item 60 (a). That is that none of the offences pertains to or connected with the establishment and regulation of the ICPC. He argued that for us to allow the offences to stand, would be to render them as federal offences and by the doctrine of covering the field, the states would be excluded from legislating on them. This, he submitted, cannot be the intention of the constitution. If that were intended, he submitted further, the constitution would have listed the item in the exclusive legislative list. In further argument, he contended that the offences created by the act in sections 8 – 26 have the effect of defeating the purpose of the provisions in chapter II of the constitution and bringing paragraph 2 (a) of part III of the second schedule of the constitution in conflict with section 4 of the constitution which he said makes corruption as crime, residual matter. The provisions of item 60(a) and paragraph 2 (a) must be read subject to section 4 as held by this court in Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at p. 412D per Achike, JSC. Therefore, he submitted that the act ought to be declared null and void pursuant to the provisions of section 1 subsections (1) and (3) of the constitution.
Learned senior advocate referred to section 6 (a) and other sections of the act which have not been mentioned in connection with the relief being sought by the plaintiff, and submitted that the provisions of section 6 (a) of the act are in conflict with those of section 214 of the constitution.
Now, I think it is necessary for the sake of clarity and ease of reference to set out all the relevant parts of the constitution that have been severally referred to in argument by the parties, namely sections 4 subsections (2) – (4); 13, 15 (5), items 60(a), 67 and 68 of the exclusive legislative list and paragraph 2(a) of part III of the second schedule:
“4(2) The National Assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part I of the second schedule to this constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the federation with respect to any matter included in the exclusive legislative list shall, save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of States.
(4) 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 thereto;
(b) and any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.”
“13. 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.”
“15(5) The state shall abolish all corrupt practices and abuse of power.”
“60. The establishment and regulation of authorities for the federation or any part thereof –
(a) to promote and enforce the observance of the fundamental objectives and directive principles contained in this constitution;”
“67. Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this constitution.
“68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”
“2. In this schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to –
(a) offences;”
Now section 4 subsection (2) of the constitution provides that the National Assembly has the power to make laws for the peace, order and good government of the federation with respect to any matter included in the exclusive legislative list. This means that the National Assembly is empowered to legislate under item 60(a) for the purpose of establishing and regulating the ICPC for the federation. This the National Assembly has done by enacting the act.
The ICPC is, by the provisions of item 60 (a), to promote and enforce the observance of the fundamental objectives and directive principles of state policy as contained under chapter II of the constitution. The question is: how can the ICPC enforce the observance Is it to use force Is it to legislate or what The ICPC cannot do either of these because the use of force or coercion in enforcing the observance will require legislation. The ICPC has no power to legislate. Only the National Assembly can legislate. The constitution of India has similar provisions to ours on directive principles of state policy in part IV thereof. In the Indian case of Mangru v. Commissioners of Budge Budee Municipality (1951) 87 CLJ 369, it was held that the directive principles require to be implemented by legislation, and so long as there is no law carrying out the policy laid down in a directive neither the state nor an individual can violate any existing law or legal right under colour of following a directive. See also the shorter constitution of India 12th Edition by Dr. D. D. Basu at pages 296 – 297.
Since the subject of promoting and enforcing the observance comes under the exclusive legislative list it seems to me that the provisions of item 68 of the exclusive legislative list come into play. Therefore, it is incidental or supplementary for the National Assembly to enact the law that will enable the ICPC to enforce the observance of the fundamental objectives and directive principles of state policy. Hence the enactment of the act which contains provisions in respect of both the establishment and regulation of ICPC and the authority for the ICPC to enforce the observance of the provisions of section 15 subsection (5) of the constitution. To hold otherwise is to render the provisions of item 60(a) idle and leave the ICPC with no authority whatsoever. This cannot have been the intendment of the constitution. Paragraph 2 (a) of part III of the second schedule to the constitution, which provides that reference to incidental and supplementary matters in the constitution (and therefore item 60 (a) of the exclusive legislative list) includes reference to offences, I think strengthens the view which hold.
It has been argued that the fundamental objectives and the directive principles of state policy are meant for authorities that exercise legislative, executive and judicial powers only and therefore any enactment to enforce their observance can apply only to such persons in authority and should not be extended to private persons, companies or private organisations. This may well be so, if narrow interpretation is to be given to the provisions, but it must be remembered that we are here concerned not with the interpretation of a statute but the constitution which is our organic law or grundnorm. Any narrow interpretation of its provisions will do violence to it and will fail to achieve the goal set by the constitution. See Nafiu Rabiu v. Kano State (1980) 8 – 11 SC 130; (1980) 2 NCLR 117; Aqua Ltd. v. Ondo State Sports Council (1985) 4 NWLR (Part 91) 622; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506.
Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.
It is submitted that “corruption” is not a subject under either the exclusive or the concurrent legislative lists and therefore being a residual matter, the National Assembly has no power to legislate upon it. This submission overlooks the provisions of section 4 subsection (4) (b) of the constitution which provide that the National Assembly has the power to legislate on any matter with respect to which it is empowered to make law in accordance with the provisions of the constitution. Section 15 subsection (5) directs the National Assembly to abolish all corrupt practices and abuse of power. The question is how can the National Assembly exercise such powers It can only do so effectively by legislation. Item 67 under the exclusive legislative list read together with the provisions of section 4, subsection (2) provide that the National Assembly is empowered to make law for the peace, order and good government of the federation and any part thereof. It follows, therefore, that the National Assembly has the power to legislate against corruption and abuse of office even as it applies to persons not in authority under public or government office. For the aim of making law is to achieve the common good. The power of the National Assembly is not therefore residual under the constitution but might be concurrent with the powers of State House of Assembly and local government council, depending on the interpretation given to the word “state” in section 15 subsection (5) of the constitution, which I will deal with anon.It has been argued by the plaintiff that the reference to “state” in section 15 (5) can be ascertained by reference to the definition in section 318 subsection (1) of the constitution. The latter section provides that the word “when used other than in relation to one of the component parts of the federation, includes government.” The same section of the constitution has defined “government” to include the government of the federation, or of any state, or of a local government councilor any person who exercises power or authority on its behalf.” Going by these definitions the directive under section 15 subsection (5) of the constitution will apply to all the three tiers of government, namely, the federal government, state government and local government. In that case the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the federal and state governments by virtue of the provisions of section 4 subsections (2), (4) (b) and (7) (c) of the constitution. It is doubtful however if the third tier, viz the local governments can legislate on the subject there is 110 provision under section 7 and the fourth schedule to the constitution that empowers them to do so.
Although the power to legislate on the subject is given to the National Assembly and State House of Assembly, when both exercise the power, the legislation by the National Assembly will prevail by virtue of section 4 subsection (5) of the constitution which provides –
“(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.”
See the cases of the Military Governor Ondo State v. Adewumi,(1988) 3 NWLR (Pt.82) 280 at page 283 and A-G. of Ogun State v. Aberuagba (supra).
It has been argued also that the word “state” in section 15 subsection (5) means the federal government alone, because if the whole of the provisions of chapter II of the constitution on fundamental objectives and directive principles of state policy are read together, it will be seen that only the federal government is in a position to carry out the principles and objectives. With respect, I do not accept this argument, because the provisions of section 13 thereof apply to “all organs of government, and all authorities and persons exercising legislative, executive or judicial powers.” The provisions do not distinguish between federal, state or local governments.
Again the provisions of section 14 subsection (4) specifically apply to the “government of a state, a local government council, any agencies of such government or council, and the conduct of the affairs of the government , council or such agencies.”
It has been pointed out that the provisions of the act impinge on the cardinal principle of federalism, namely, the requirement of equality and autonomy of the state government and non-interference with the functions of state government. This is true, but as seen above, both the federal and state governments share the power to legislate in order to abolish corruption and abuse of office. If this is a breach of the principles of federalism, then, I am afraid, it is the constitution that makes provisions that have facilitated breach of the principles. As far as the aberration is supported by the provisions of the constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.
In the light of the foregoing I will answer both the plaintiff’s issues for determination nos. (i) and (ii) in the affirmative.
The next point is whether the Attorney-General of the Federation or any person authorised by the ICPC can lawfully initiate or authorise the initiation of criminal proceedings in any court in Ondo State in respect of offences created by the act. The plaintiff’s contention is that the answer is in the negative if the answers to issues nos. (i) and (ii) have been answered in the negative.
But I have held otherwise and so the opposite is the case. I, therefore, hold that the criminal proceedings can be initiated in the court in Ondo State in accordance with the provisions of section 286 subsection (1) (b) of the constitution, which provides:
“286(1) Subject to the provisions of this constitution –
(b) where by the law of a state jurisdiction is conferred upon any court for the investigation; inquiry into, or trial of persons accused of offences against the laws of the state and with respect to the hearing and determination of appeals arising out of any such trial or out of any proceedings connected therewith, the court shall have like jurisdiction with respect to the investigation, inquiry into, or trial of persons for federal offences and hearing and determination of appeals arising out of the trial or proceedings.”
“Federal offence” is defined in subsection (3) thereof to mean “an offence contrary to the provisions of an act of the National Assembly or any law having effect as if so enacted.”
The plaintiff contended that not all the powers conferred upon the ICPC or other functionaries and agencies of the federal government are exercisable in Ondo State in relation to the activities of persons in that state including any public officer or functionary of the government of Ondo State. He submitted that sections 6 (a), 26(3),28,29,35 and 37 of the act are unconstitutional and invalid.
The sections provide as follows:
6(a) – imposes on the ICPC the power to receive, investigate and prosecute any person for offences under the act.
26(3) – the prosecution of an offence shall be concluded and judgment delivered within 90 working days of commencement of the prosecution except that the jurisdiction of the court will not be affected if good grounds exist for delay.
28 – gives the ICPC wide powers when investigating the commission of an offence to summon any person, order him to produce any book or document or require him to make written statement under oath or affirmation etc.
29 – empowers the ICPC to issue summons to a person complained against for the purpose of being examined,
35 – gives the ICPC the power to arrest and detain any person, who failed to obey a summons directed to him, until the person complies with the summons,
37 – empowers the ICPC to seize any moveable or immoveable property on suspicion that the property is the subject matter of an offence or evidence relating to the offence.
In considering whether the provisions of these sections of the act violate the provisions of the 1999 constitution, I will answer issue no (iv) as follows –
Section 6 (a) – this power is exercisable in Ondo State in view of the provisions of section 4 subsections (2) and (3) of the constitution,
Section 26(3) – the provisions therein infringe on the principle of separation of powers and the subsection is unconstitutional, null and void see Unongo v. Aku (1983) 2 SCNLR 332 and A-G. Abia State v. A.-G. of the Federation & Ors. (2002) 6 NWLR (Pt. 763) 264 at p.397.
Section 28 – the powers of the ICPC are co-extensive with those of the police under the Police Act, Cap. 359 and do not usurp the police power under section 214 of the constitution. The power is exercisable on a person not exercising government function. The National Assembly has the power to so enact.
Section 29 – The power is not unconstitutional by reason of its being exercisable on persons not exercising government function. The National Assembly has the power to so enact.
Section 35 – the power of the ICPC to arrest and detain persons indefinitely, that is, until the person complies with the summons, violates the provisions of section 35 of the constitution which guarantees the fundamental right to personal liberty. The provision is therefore unconstitutional, null and void.
Section 37 – the power of the ICPC is constitutional. The National Assembly, as shown earlier, has the right under the constitution to create the offence.
Applying the blue pencil rule, sections 26 subsection (3) and 35 will be struck down. When this is done the rest of the act is not affected. So that the good can be severed from the bad. There is no reason therefore to justify the whole of the act being invalidated as sought by the plaintiff. See Doherty v. Balewa (1963) 2 SCNLR 256; (1963) 1 WLR 949 and A-G. of Abia State & 36 Ors. v. A.-G. of the Federation, (2002) 6 NWLR (Part 763) 264 at p. 436; (2002) 3 SC 106 at pp. 199 – 200 per Ogundare, JSC.
On the whole the plaintiff’s action succeeds only in part. I make the following order:
(1) Section 26 subsection (3) of the act is unconstitutional and therefore it is hereby declared null and void.
(2) Section 35 of the act is unconstitutional and therefore it is hereby declared null and void.
(3) I make no order as to costs. Each party shall bear its costs.
Finally, I wish to thank all the counsel in the case and in particular the amicus curiae for the tremendous assistance which they have rendered to the court in their briefs of argument and oral addresses.
SC.200/2001
