Can A State Government Act As Agent Of The Federal Government Of Nigeria?

By Hameed Ajibola Jimoh Esq.

BACKGROUND:

The Federal Republic of Nigeria by virtue of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- is a Federal State and the State Governments being the constituents of the Federation. As of the present situation under the 1999 Constitution, there are thirty-six (36) States and the Federal Capital Territory, Abuja (making a total number of thirty-seven (37) strictly speaking, as the Constituents of the Federation i.e. of the Federal Republic of Nigeria. Each of the States of the Federation too comprises some numbers of Local Governments under the Constitution. Nigeria is no doubt of a wide expanse of areas which in some cases makes it nearly impossible for the Federal Government alone to carry out its federal powers and or functions and or duties (in my humble submission) in real sense. The vast performances of such powers and or functions and or duties makes it to seem that the federal government is not competent enough to perform all its functions and or duties. This paper is of the consideration and thoughts that it would have been prudent if the federal government could assign some of its tasks and or functions and or duties to the State Governments (under AGENCY RELATIONSHIP) where necessary for effective and efficient governance. Also important to state is the reason that the Federal Government might and or is not close to the local people to whom a State Government is much closer to. For instance, too, talk of: security; welfare; social amenities; etc. A successful actualization of these mandates (i.e. under the AGENCY RELATIONSHIP) would require some roles to be played by the State Government especially in regard to functions not on the Concurrent Legislative List as contained in the Constitution but exclusive to the Federal Government. Hence, this paper is of the opinion that it would be good and better if the Federal Government could appoint some of the State Governments especially a State Government within whose territory the Federal Government requires to carry out public projects under its executive powers and or functions and or duties, for efficiency and effectiveness. This paper offers the legal frameworks for the appointment of a State Government by the Federal Government (as agent of the Federal Government of Nigeria) without the Federal Government acting ultra vires its executive powers, functions and or duties, especially, within the constitutional authority. Hence, this paper.

INTRODUCTION:

Nigeria is a Federal State or Federation. Therefore, Nigeria operates a Federal System of Government. There are certain principles of a federal system of government: ‘A Federal System of Government’ is an association of free states where power is constitutionally shared by the federal, state and local councils, and with each tier of government exercising its constitutionally assigned powers and functions’. A Federal constitution or federal system of government is one that provides for separate structures of government at the national, state and local councils and with each tier having its own constitutionally assigned powers and duties. The powers of the different tiers of government are usually spelt out in legislative lists in the constitution of the country. The Exclusive Legislative List is for the Federal Government; the Concurrent Legislative List are powers shared between the Federal Government and States Governments to legislate upon provided that where there is a clash of laws, the law of the federal government usually prevails because it is the superior law or because it has covered the ground (or the field). The functions of a local government council on the other hand are also spelt out in the constitution clearly. Thus, there is division of powers in the constitution among the different tiers of government, each deriving its powers from the constitution. A federal country usually has a written and rigid constitution, duplication of government at all levels of government and so forth. Nigeria (as I stated earlier in this paper above) is a Federal State which operates a federal system of Government. See: Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page 26. The Supreme Court of Nigeria in the case of INEC v. MUSA (2003) LPELR-24927(SC) while considering on the issue of ‘What does the legislative power of the National Assembly consist of?’. The Apex court held thus “The legislative power of the National Assembly consists of the power to make laws for the peace and 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 the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”.

Furthermore, Tobi, JSC in A-G, Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H; explained on the above provisions that: “There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items. The Concurrent Legislative List contains 30 items… the Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to the House of Assembly of a State as it relates to Section 4(7) (b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”

Furthermore, on the dichotomy between Exclusive Legislative List and the Concurrent Legislative List, the Court of Appeal of Nigeria clarified this issue in the case of CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41563(CA) while considering the ‘Scope of the powers of the House of Assembly of a State’ thus ‘A careful perusal of the Second Schedule Part 1 which deals with Legislative Powers and in particular contains the items in the Exclusive List, list “Mines and minerals including oil fields, oil mining, geological surveys and natural gas.” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore, any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.’ Also, On what a ‘Residual Legislative Powers’ encapsulates, in the case of: A.G. OGUN STATE V. ABERUAGBA & ORS. (1985) 1 NWLR (PART 3) 395 at 405 C-D per BELLO, JSC, (later CJN of blessed memory) had the following to say thus: “A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of Government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”.

This paper considers and or formulates a question ‘CAN A STATE GOVERNMENT ACT AS AGENT OF THE FEDERAL GOVERNMENT OF NIGERIA?’ i.e. delegation of some of the executive powers, functions and or duties of the Federal Government to a State Government as an ‘AGENT OF THE FEDERAL GOVERNMENT OF NIGERIA’, without the Federal Government losing its autonomy to the State Government.

JURISTIC PERSONALITY OF A STATE GOVERNMENT AND THE FEDERAL GOVERNMENT OF NIGERIA

In my humble submission, both the respective State Government of the Federation of Nigeria (in this case, the Federal Capital Territory-Abuja, is regarded as a State and it is herein after referred to as a ‘State’ inclusive) and the Federal Government have juristic personality to exercise powers, functions and public duties as conferred in their respective bodies by the Constitution. Though, the Constitution does not specifically or expressly state that the State Government (Executive) and the Federal Government of Nigeria (Executive) shall sue and be sued in its own name, nevertheless, both enjoys juristic personality to sue and be sued in their respective names having regard to their public functions that they perform ‘with autonomy’ by ‘implications of law’. The Supreme Court of Nigeria has clearly espoused on this point when the apex Court held in the case of A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (2023) LPELR-59936(SC) at pages: 20-25 thus ‘The directive by the President by virtue of his office as such President and head of Government of the Federation is in exercise of the executive powers of the Federation vested on him or her by virtue of S.5(1) of the 1999 Constitution which provides that:

“5(1). Subject to the provisions of this Constitution, the executive powers of the Federation –

(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President or Ministers of the Government of the Federation or other officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.” The Government of Nigeria is therefore an agent of the Federation of Nigeria as it exercises the executive powers of the Federation on behalf of the Federation or Federal Republic of Nigeria for its benefit and wellbeing. In A.G Federation V A.G Abia State (2001) LPELR-24862(SC) this Court stated that the Federal Government of Nigeria represents all the constituent States of the Federation and exercises the powers of the Federation as trustee for and on behalf of the Federation. This Court restated in A-G Lagos State v. A-G Federation (2014) 9 NWLR (Pt. 1412) 217 at 280, that the Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal and State Governments in contradistinction are donees of the power and authority of the people. Being an agent of the Federation, the act of the President as head of Government of Nigeria is therefore the act of the Federation. It is an established principle of hallowed antiquity that quit facit per alium facit per se (one who acts by another acts himself). So much heavy weather is made about the distinction between the Federation and the Government of Nigeria that exercises its executive powers. That distinction no doubt has constitutional basis. But since the Government of the Federation exercises the executive powers of the Federation, there is, legally and practically speaking, hardly a dividing line between the acts of the Government of the Federation and the acts of the Federation. The distinction does not exist to the extent of turning the Government of the Federation into a sovereign that can act without regard to the Federation. The Government of the Federation is not a sovereign. It is a creation of the Constitution for the purpose of exercising the executive powers of the Federation. The Federation is inherently the sovereign and its sovereignty is further established by S.2(1) and (2) of the 1999 Constitution which provides that- (1) Nigeria shall be one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.

(2) Nigeria shall be a Federation consisting of States and the Federal Capital Territory, Abuja. The sovereignty enjoyed by the Federation is owned by the several individual persons constituting the people of the Federation of Nigeria who own the lands that together form the territory of Nigeria. S. 14(2) of the 1999 Constitution acknowledges this ownership by declaring that-

(a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.

(b) The security and welfare of the people shall be the primary purpose of government; and

(c) The participation by the people in their government shall be ensured in accordance with the provisions of this constitution.

The plaintiffs in their suits contend that since they are constituents of the Federation and that since the executive power of the Federation is vested in the President and the Government of Nigeria, to be exercised on behalf of the Federation, then the executive act or decision of directing or approving a measure that obviously would have far reaching disruptive impact on the public governance and economic and social order of the constituent States such as introducing redesigned naira notes into circulation, withdrawing the old bank notes and limiting cash withdrawals from banks to reduce the money in circulation and increase the money in the banks, should have been made after due consultation with the constituents of the Federation through the National Council of States and the National Economic Council and in such a manner as to avoid the massive disruptions of the governance of the constituents and disruptions of trades and all economic activities and the pervasive hardship its hasty and haphazard implementation has unleashed on people in the constituent States. This is clearly a dispute between the Federating units and Federation and other federating units over the exercise of the executive powers of the Federation by the President without regard to the Constituents of the Federation. The dispute is between the plaintiff States on one hand and the Government of the Federation and two other States on the other hand.

It is a dispute within the original jurisdiction of this Court vested on it by S.232(1) of the 1999 Constitution which provides 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.’. (Underlining is mine for emphasis).

Furthermore, in the case of ‘DAUDA vs. THE DIRECTOR GENERAL, NATIONAL INTELLIGENCE AGENCY & ANOR.(2020)LCN/14054(CA)’, the Court of Appeal of Nigeria had the cause to decide on the ISSUE: LEGAL/JURISTIC PERSONALITY- as to ‘Whether where an office is created by statute but without an express provision in the statute as to its capacity to sue or be sued, juristic personality of it can exist by necessary implication from the fact that it exercises powers and functions that affect the rights of persons and injustice would arise from unavailability of means of redress of legal wrong if the office is not subject to legal proceedings(Issue is mine)’ and held while laying the legal principle thus: “The part of the ruling of the trial Court complained against under this issue reads thusly- “In ground (x) of the grounds of the Defendants’ motion, it was mentioned that the 1st Defendant is not a juristic person and cannot be sued. Then in paragraph 17 of the affidavit in support of the motion, it was averred that the 1st Defendant is an appointment by the President of the Federal Republic of Nigeria. In his submission on this ground of the objection, learned SAN for the Defendants argued that the 1st Defendant has been wrongly joined in this suit and that it ought to be struck out from the action. In his own submissions, counsel for the Claimant submitted that the 1st Defendant is a person known to law as the office originated from and was created pursuant to Section 3(1) of the National Security Agencies Act, 1986.

The 1st Defendant in this suit is the Director-General, National Intelligence Agency. I have examined the provisions of the National Security Agencies Act, 1986 wherein the 2nd Defendant was established, but there is no provision in the Act establishing the office of Director-General of NIA. Section 3(1) of the Act referred to by counsel for the Claimant only granted power to the President to appoint principal officers of the Security Agency established in the Act. The section did not establish or create the office of DG NIA. However, upon examining the provisions of Sections 3(1), 4 (2), (4), 7(2) and 9 of Instrument No. NIA 1, it is clear to me that the Director-General of NIA is a mere appointment by the President. The office is not created by statute. Also, the appointment of Director-General of NIA by the President pursuant to the NSA Act or Instrument No. NIA 1 cannot confer juristic personality on the office. In my view, the 1st Defendant is neither a natural person nor a creation of statute.

As a general rule, only natural persons and juristic or artificial persons, such as bodies corporate or bodies created by statute, are competent to sue and be sued before any law Court. No action can be brought by or against any party who is not a natural person or person accorded legal personality. See ‘THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 31; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136; UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) LPELR–40161 (CA).’

Therefore, an action cannot be maintained against a Defendant who is not a legal person. Where it is clear that a Defendant or any party to a suit is not a legal person, the party must be struck out. I agree with the Defendants that the 1st Defendant is not a juristic person and thus not capable of being sued or made a party to this suit. Consequently, the 1st Defendant is hereby struck out from this suit.”

I have carefully read and considered all the arguments of both sides on this issue.

While learned Counsel for the Cross-appellant contends that the vesting of the overall command of the National Intelligence Agency (2nd Respondent) in the 1st Respondent as Director General of National Intelligence Agency by Article 3(1) of the National Security Agencies Decree, 1986 gives the 1st Cross-respondent the juristic personality that enables it to sue or be sued eo nomine, that this so because the powers and functions are enormous, and the exercise of those powers certainly would affect the rights of persons. Learned SAN for the Cross-respondents argued that the 1st Cross-respondent is neither a natural or juristic person or body corporate and so cannot sue or be sued by its name. Let me now determine the merits of the arguments of both sides.​

It is obvious that the 1st Respondent is an office in the 2nd Cross-respondent, a statutory body created by Section 1(b) of the National Security Agencies Act Cap. N74 Vol. 9 LFN 2004 (updated 2010) and charged by Section 2(2) (a) and (b) with the responsibility for-

“a) The general maintenance of the security of Nigeria outside Nigeria, concerning matters that are not related to military issues, and

b) such other responsibilities affecting national intelligence outside Nigeria as the National Defence Council or the President, as the case may be, may deem necessary.”
The 1st Cross-respondent is the head and overall Commander of the 2nd Cross-respondent by virtue of Article 3(1) of the National Security Agencies Decree 1986 and Section 3(1) and 2(a) of the National Security Agencies Act (supra).

It is obvious that as the principal officer responsible for the overall command of the 2nd Cross-respondent, it bears the overall responsibility for the general maintenance of the security of Nigeria outside Nigeria.​

The juristic personality of the Cross-appellant exists by implication from its creation or recognition and its vesting with the overall command of the National Intelligence Agency by the National Security Agencies Act. This law is settled by a long decision of the juristic personality of an office or organ in a statutory body can exist by necessary implication from the fact that it exercises powers and functions that affect the rights of persons. See ‘Carlen (Nig.) Ltd. v. University of Jos & Anor. (1994) LPELR-832 (SC); Thomas v. Local Government Service Board (1965) NMLR 310 (SC); Anueyiagu & Anor. v. Deputy Sheriff Kano (1962) 1 All NLR 52 (FSC); African Ivory Insurance Co. Ltd. & Ors. v. Commissioner of Insurance (1997) LPELR–6248 (CA); Chairman, EFCC & Anor. v. Littlechild & Anor. (2015) LPELR-25199 (CA); Solicitor General of Western Nig. v. Adedoyin (1973) UILR 143 and Kpebimoh v. The Board of Governors, Western Ijaw Teacher’s Training College (1966) 1 NMLR 130.’.

“We also draw this Honourable Court’s attention to its decision *per AYOOLA, JCA,* (as he then was) which was rightly referred to by *OSENI, JCA,* in the above stated decision, *AFRICAN IVORY INSURANCE COMPANY LTD. & ORS. v. COMMISSIONER FOR INSURANCE (1997) LPELR-6248 (CA):* “The proposition applicable to the case at hand that can be distilled from the authorities can be shortly stated. Where a body or office is created by statute notwithstanding the absence of an express provision there as its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer a right to sue the officer or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from unavailability of means of redress should be the office exercising such powers or performing such function not to be subject to any kind of proceedings. On the other hand, if inability to sue or in order to enforce the powers vested in it or in support of the exercise of its functions will make the powers and functions ineffective a right to sue eo nomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as ‘Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 All NMLR 130; Thomas v. Local Government Service Board (1965) 1 All NLR 168* and *Solicitor General Western Nigeria v. Adedoyin (1973) UILR 143,’ all of which have been discussed in ‘Fawehinmi v. NBA (no. 2) (supra). That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from the threatened infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eo nomine.”

This position of the Law was earlier adopted by the Supreme Court in the case of ‘CARLEN (NIG.) LIMITED v. UNIVERSITY OF JOS & ANOR. (1994) LPELR-832 (SC) per OGUNDARE, JSC,’ “From all I have been saying above, I hold the view that upon the reading of the University of Jos Act as a whole, both the Council of the University and the Vice Chancellor, are by implication, given juridical personality that enables each of them to sue and be liable to be sued eo nomine. The learned trial Judge had held that the second defendant, that is the Council of the University can be sued and is a proper party to this action. I entirely agree with the judgment of Ahinche J. and find myself unable to accept the judgment of the Court of appeal which held to the contrary. Having concluded as above, I must necessarily disagree with the decision of the Court below which held that the two defendants were not proper parties to the present proceedings.” ‘Pp. 31-32, Paras. G-C)” Per AGIM, JCA.’.

I must however add that while a State Government just as the Federal Government of Nigeria enjoys juristic personality to sue and be sued in their respective name where territorial issues are related or in regard to their respective powers, functions and or duties, the respective Governor of the respective State of the Federation and the President of the Federation are also juristic personality that could also sue and be sued in their respective names as per the exercise of their respective executive powers, functions and or duties under the law. The Supreme Court of Nigeria in the case of A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (supra) recognizes this fact when the apex court held at Pages: 43-46, thus ‘‘Since they are constituents of the Federation and since the executive power of the Federation is vested in the President and the Government of Nigeria, to be exercised on behalf of the Federation, then the executive act or decision of directing or approving a measure that obviously would have far-reaching disruptive impact on the public governance, economic and social order of the constituent States such as introducing redesigned naira notes into circulation, withdrawing the old banknotes and limiting cash withdrawals from banks to reduce the money in circulation and increase the money in the banks, should have been made after due consultation with the constituents of the Federation through the National Council of States and the National Economic Council and in such a manner as to avoid the massive disruptions of the governance of the constituents and disruptions of trades and all economic activities and the pervasive hardship its hasty and haphazard implementation has unleashed on people in the constituent States. As I had held herein, it is obvious that the directive has been carried out and the fact is common knowledge, is not reasonably open to question and does not require proof, that the implementation of the directive has continued to deprive all persons and the plaintiffs access to a substantial part of their funds in banks, thereby forcefully and illegally depriving them their rights of ownership and use of the said funds for State functions.

The Constitution did not expressly require the President to make such consultations with the constituent States or seek advice from the bodies mentioned above before issuing the directive in question here or before exercising any executive powers of the Federation. The duty is implicit in the provisions of S.5(1) of the 1999 Constitution that makes the President an agent of the Federation. As held herein, it is inherent in their status as constituents of the Federation under a democratic constitution, is their right to be consulted by the President before the exercise of any executive power of such magnitude as can have far-reaching effect on the governance, economic and social order of each constituent state of the Federation. Such right is inherent in the idea of a Federation in a democracy. Without it, the Federation losses its sovereignty and the President becomes the sovereign and the Government of Nigeria a dictatorship.

The identifying character of democratic constitutional governance is the wide consultations and broad consensus behind the exercise of executive powers through bodies established for that purpose by the Constitution. Such bodies include the Federal Executive Council that is required by the Constitution to have at at-least one indigene of each of the 36 States of the Federation and the Federal Capital Territory and the National Economic Council which consists of 36 States Governors elected by their people and the Governor of the Central Bank of Nigeria, an appointee of the President, as members, with the Vice-President as Chairman of the Council who is also a member of the Federal Executive Council and the National Council of State. Good governance and economic prosperity cannot thrive in a plural society like ours if executive power of the Federation with far-reaching impact is exercised without inputs from the constituent States on how it affects them.

The 1st defendant realized belatedly the need to consult the National Council of States on the matter and invited the Governor of the Central Bank to brief the Council in its meeting in February 2023. Acknowledging the widespread problems generated by the implementation of the President’s directive, the National Council of States intervened and advised that more new naira notes be printed and made available or the already withdrawn old notes be recirculated.’. Also see: pages: 25- 27 of the Judgment.

However, and nevertheless this position and or submission, in my humble submission, the ‘concept of immunity’ enshrined in the Constitution makes suing either the Governor or his Deputy or the President or his Vice-President impossible (though, each of them could sue in their respective names and then, there would be no immunity to such suit (i.e. where in respect of such suit, the party to the suit makes any issues against the concerned person who normally enjoys constitutional immunity)). ‘Immunity’ has been defined by ‘Ese Malemi’ as the exemption of a person or body from legal proceedings, or liability. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publishing Company, Ikeja, Lagos, 2006, page 446. According to the Constitution of the Federal Republic of Nigeria, 1999, (as amended)-herein after referred to as the Constitution-, in section 308, it provides thus.—(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section— (a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office ; (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office. (2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to ‘period of office’ is a reference to the period during which the person holding such office is required to perform the functions of the office’.

Therefore, ‘since the respective Governor and his Deputy and or the President and or his Vice-President’ enjoy ‘immunity’ against any complaint against the performance of their public functions as same might affect any person or public, the Nigerian Courts have held that ‘the Attorney-General has the locus standi to commence and defend actions for and on behalf of Government’. See the cases of: Ndoma-Egba v Government Cross-River State (1991) 4 NWLR (pt. 188) 773; A.G. Fede. V Chief G.O.K. Ajayi (2000) 3 WRN 105; Ojaboh v The Hon. Minsiter of Communication (2000) 2 FHCLR 239; Ezomo v A.G. Bendel State (1986) 4 NWLR (pt. 36) 448; Guardian News Paper Ltd. V A.G. Fed. (1985) 5 NWLR (pt. 398) 703.

CAN A STATE GOVERNMENT ACT AS AGENT OF THE FEDERAL GOVERNMENT OF NIGERIA?:

In response to this question, I humbly submit and or answer in the affirmative ‘Yes’ (though this context is in regard to the executive functions of the Federal Government. The reason for my legal submission in the affirmative are as stated below.

As I had already stated above (i.e. in this paper), a State Government of the Federation just as the Federal Government of Nigeria enjoys juristic personality to sue and be sued in their respective name where territorial issues are related. To this extent, by virtue of section 5 of the Constitution which provides for ‘Executive Powers’ (and by virtue of section 318 (1) of the Constitution, ‘power’ includes function and duty), the Governor of the State Government can also be appointed as an ‘agent’ of the Federal Government of Nigeria for the purpose of performing any of the powers, functions and or duty conferred on the Federal Government and or the President especially, where the national interest is involved or where necessary. Both the Federal Government and the President respectively are agents of the Federal Republic of Nigeria (i.e. the Federation) in regard to their assigned constitutional powers. Therefore, there is no difference between the Federal Government and the President of the Federation. The Supreme Court of Nigeria had held in the case of A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (supra) thus ‘This Court restated in A-G Lagos State v. A-G Federation (2014) 9 NWLR (Pt. 1412) 217 at 280, that the Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal and State Governments in contradistinction are donees of the power and authority of the people. Being an agent of the Federation, the act of the President as head of Government of Nigeria is therefore the act of the Federation. It is an established principle of hallowed antiquity that quit facit per alium facit per se (one who acts by another acts himself).’.

Furthermore, it is my humble submission that there is nothing in the Constitution that says or states that a State Government cannot be appointed by the Federal Government of Nigeria or the Governor of a State to be so appointed by the President in a deserving circumstance or situation for national interest. The Supreme Court of Nigeria had held in the case of A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (supra) ‘As this Court held in Obayuwana vs. Governor of Bendel State & Anor (1982) 12 SC (Reprint) 67 per Nnamani, JSC, Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary. If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally, and will have no power to restrict its application to specific situations.’.

Also, I humbly submit that there is nothing in the Constitution restricting the application of the law of ‘AGENCY’ to the relationship between the State Government of the Federation and the Federal Government of Nigeria in respect to the appointment of the State Government to act for the Federal Government and or the President of the Federation as the case might be. One cannot read into a Constitution and a Statute meanings and intention not intended or contemplated by the framers of the Constitution and the Lawmakers. See:- COMPTROLLER GENERAL OF CUSTOM & ORS. v. COMPTROLLER ABDULLAHI B. GASAU (2017) 18 NWLR (PART 1598) 353 AT 385 F, per EKO, JSC, who said:-

“Where the main object and intention of a statute are clear the Court, in its interpretative power, must give effect to those main object and intention. The words and language used in the statute to convey its main object and intention shall be given their ordinary meaning. See: Unipetrol v. ESBIR (2006) All FWLR 413 at 423, (2006) 8 NWLR (Pt. 983) 624; Obusez v. Obusez (2007) 30 NSCQR 329, (2007) 10 NWLR (Pt. 1045) 430. The Constitution, in the powers or function it has vested in the Federal Civil Service Commission, should be so construed to achieve the purpose and object it is intended to achieve. See FCSC v. Laoye (supra). The principle of the interpretation of the Constitution laid down by this Court in Nafiu Rabiu v. Kano State (1980) 8-11 SC 130, 148-149 (1981) 2 NCLR 293 is that the words of the Constitution or statute are not to be read with stultifying narrowness, but are to be read and given the meaning that will effectuate the purpose. See also A-G, Fed. v. A-G, Abia State (2001) 7 SC. (Pt. 1) 32, (No. 2) (2002) 6 NWLR (Pt. 764) 542.”

Also, in the case of: F.C.D.A. v. Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C- D it was held that: ” The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity…no part of it can be described to be adjectival or procedural law…The Constitution is a substantive law.”. Also, there is a cardinal principle of law that ‘What is not prohibited is permitted’. See: ANYAEBOSI VS. R.T. BRISCOE LTD. (1987) 3 NWLR (Pt. 59) 108, the apex court, aptly held, inter alia thus: “It is important to state that a computerized account …. does not fall into the category of evidence absolutely inadmissible by law. In my opinion, it falls within the category of evidence admissible…’. Also, in the case of Dankwambo V Abubakar (2015) LPELR-25716 (SC) the Supreme Court of Nigeria held thus “It is a cardinal principle of law that what is not expressly forbidden, is permitted.” Also, in the case of THEOPHILUS V FRN (2012) LPELR-9846 their Law Lords held that: “the basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted…it is not within the court’s interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means…’. Wikipedia online also states this principle as an English law or common law principle thus ‘Everything which is not forbidden is allowed” is a legal maxim. It is the concept that any action can be taken unless there is a law against it. Slynn, Gordon; Andenæs, Mads Tønnesson; Fairgrieve, Duncan (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN 9789041113788. Glanville Williams, “The Concept of Legal Liberty”, Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019), Citizenship, ISBN 9780262537797, p. 159. It is also known in some situations as the “general power of competence” whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action. A cartoon in Hugo Gernsback’s Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy. The opposite principle “everything which is not allowed is forbidden” states that an action can only be taken if it is specifically allowed. A senior English judge, Sir John Laws, stated the principles as: “For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden.” Laws, John (October 2, 2017). “The Rule of Law: The Presumption of Liberty and Justice”. Judicial Review. 22 (4): 365–373. doi:10.1080/10854681.2017.1407068. S2CID 158167115 – via Taylor and Francis+NEJM. (Underlining is mine for emphasis). Legal philosopher Ota Weinberger put it this way: ” In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed”. Weinberger, Ota (October 29, 1988). “The Role of Rules”. Ratio Juris. 1 (3): 224–240. doi:10.1111/j.1467-9337.1988.tb00016.x – via Wiley Online Library.’.

Furthermore, on the instruments of interpretations of the Nigerian Constitution and statutes, HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said: “The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: ‘Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H; Adisa v Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR–40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D–G also per KEKERE-EKUN, JSC, who had this to say– “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 *NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3. CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588: “It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264. (Underlining is mine for emphasis).

Furthermore, by section 318(4) of the Constitution which has adopted the Interpretation Act to be used to interpret the Constitution. See: Abioye & Ors v. Yakubu & Ors (1991) LPELR-43(SC); Fayemi & Anor v. Oni & Ors (2010) LPELR-4145(CA). In my humble submission, the ‘LAW OF AGENCY’ is a Common Law related Law to which the Interpretation Act, 2004-herien after referred to as the Interpretation Act, in section 32(1) thus ‘32. (1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were m force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.’. (Underlining is mine for emphasis).

I wish to humbly add that the law that I refer to here is on ‘AGENCY’ and ‘not PARTNERSHIP’ while ‘PARTNERSHIP’ is defined by the ‘PARTNERSHIP ACT, 1890 (A STATUTE OF GENERAL APPLICATION) as the relation which subsists between persons carrying on a business in common with a view of making profits’ General Principles of Business and Co-operative Law (Part Two) by M.O. Sofowora (A studies series) Soft Associates, Lagos, at page 87), ‘Agency’ has been described as a special type of contract in which one party called the PRINCIPAL expressly or impliedly agrees that the other party called the AGENT should act for him for the purpose of bringing him into a contractual relation with a third party. The Law of AGENCY is essentially common law, hence, the cases provide a lot of insights into this area of the law. Fridman in his Law of Agency defines it as ‘the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by making of contracts on the disposition of property’. The agency relationship is based on contract, therefore, an agent acts for the principal’s benefit and in accordance with the principal’s direction. Once the principal’s direction is effected, the agent normally drops out and he has neither rights nor liabilities under the contract except the one that created the Agency. The act of the agent with the third party will therefore create reciprocal rights and liabilities or ‘privity of contract’ between the principal and a third party as if the principal has contracted for himself. See: General Principles of Business and Co-operative Law (op.cit.), page 54. Furthermore, for emphasis, I humbly submit that the principle of ‘delegatus non potest delegare (a delegate cannot delegate) does not apply to restrict the powers of the Federal Government or the President (Agent under the constitution) from delegating some of its functions or duties to a State Government and or the Governor of the State. I have already made my submissions and legal references in this respect above in this paper. However, I must state that except the State Government has the written authorization to re-delegate its delegated authority to a third person, the State Government would be estopped from such re-delegation. Therefore, in this instance, in order to enable the State Government to engage (may be) professionals etc., to fully carry out such delegated functions, the State Government and the Federal Government should have such terms contained in their agreement. It is then that such a written agreement would constitute an ‘exemption’ to the general rule that ‘delegatus non potest delegare (a delegate cannot delegate). In this instance, for instance, in the case of Calico Printers Association v Barclays Bank (1931) it was held that ‘where an agent has power to appoint a delegate or s sub-agent, the sub-agent becomes the agent’s agent and not of the principal unless the principal has given authority to his agent not merely to appoint a delegate or subagent but to appoint someone to act as agent of the principal’. Therefore, in this situation, no privity of contract exists between the principal and the sub-agent and consequently, the sub-agent cannot sue the principal for remuneration. By the same reasoning, the principal cannot sue the sub-agent for failing to carry out his duties, since there is no privity of contract between the principal and the sub-agent, the agent will remain liable to the principal for the due performance of this agency and will be answerable for the default of himself and of his delegate. See: General Principles of Business and Co-operative Law (op.cit.) at page. 75. In General Principles of Business and Co-operative Law (op.cit.), at page 75, it is stated by the author that ‘But this rule is sometimes relaxed in the following situations:

Where the duties to be performed by the agent are purely ministerial and do not involve the exercise of any discretion, confidence or skill on the part of the agent in person;
Where by the usage or custom of the trade an agent usually acts through other agents or professional advice or assistance is needed e.g. sale of listed shares being delegated to a stockbroker by a Solicitor Agent;
Where unforeseen circumstances arise which necessitates the agent’s delegation;
Where the principal expressly sanctions or approves the delegation’.
VICARIOUS LIABILITY OF THE FEDERAL GOVERNMENT OF THE FEDERATION (PRINCIPAL) FOR THE ACT(S) OF THE APPOINTED STATE GOVERNMENT (AGENT)

I humbly submit that whatever liability incurred by the State Government appointed by the Federal Government under (the AGENCY) is not that of the State Government (the AGENT) rather, it is that of the Federal Government (the PRINCIPAL). This is what is termed as ‘VICARIOUS LIABILITY’. The Court has held that ‘The plank upon which the principle of vicarious liability is built is the existence of a relationship of master and servant.’ See IFEANYI CHUKWU (OSONDU) CO. LTD V. SOLEH BONEH (NIG) LTD (2000) LPELR-1432(SC) AT 12-13 (G-D) Where the Supreme Court Per OGUNDARE, JSC stated the nature and basis of the doctrine of vicarious liability as follows: “The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act committed by his servant while acting in the course of his employment. Tubervill v. Stamp (1697) 1 Ld. Raym. 264; Dyer v. Munday (1895) 1 Q.B. 742. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt CJ in Hern v. Nichols (c. 1700), 1 Salk 289; “one of the earliest cases on the subject wherein the learned Chief Justice pronounced. “Seeing somebody must be a loser by this deceit. It is more reason that he that employs and puts a trust and confidence in the deceiver, should be a loser than a stranger.” The doctrine means that one person takes the place of another so far as liability for the tort is concerned – see Launchbury v. Morgans (1971) 2 QB 245, 253. It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did.” AT PAGE 15 (A-D) of the report, His Lordship stated thus: “In summary, to succeed against a master the plaintiff must; 1. establish the liability of the wrongdoer, and prove 2. that the wrongdoer is a servant of the master and 3. that the wrongdoer acted in the course of his employment with the master. See Young v. Edward Box & co. Ltd. (1951) TLR 789; 793 where Denning L. J., said: “In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability.” For a relationship of master and servant to exist and for a master to be vicariously liable for the action of a servant, the following conditions must be established: 1) the master’s power of selection of his servant. 2) The payment of wages or other remuneration. 3) The master’s right to control the method of the work. 4) The master’s right of supervision or dismissal. See SHORT V. J & W HENDERSON LTD (1945) LI.L.REP 271. Furthermore, the Supreme Court of Nigeria held in the case of A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (supra) thus ‘The law is settled by a long line of decisions of this Court that an agent of a revealed or known principal is an unnecessary party to an action. See for example Osigwe V PSPLS Management Consortium Ltd & Ors. (2009) LPELR- 2807(SC) and Carlen V University of Jos (1994) 1 SCNJ 72. The suit as constituted can be fairly, effectually and conclusively tried and determined in respect of the rights and interests of the parties before it without the joinder of the Central Bank of Nigeria. The law is settled that the non-joinder of a person who can be a party to an action, as a party to the action, would not defeat it, if the action as constituted as to parties, their rights and interests and the issues raised or arising for determination in the suit, can be fairly, effectually and conclusively tried and determined without joining such a person as a party to the action. See Okoye V NCF Co Ltd & Ors (1991) All NLR 328, Bello V INEC (2010) LPELR-767(SC) and Green V Green (1987) LPELR-1338(SC).’.

CONCLUSION AND RECOMMENDATION:

Arising from the legal submissions contained in this paper, I humbly submit in the affirmative regarding the question posed by this paper as to ‘whether a State Government can act and or be appointed as agent of the Federal Government of Nigeria?’

Furthermore, in my humble submission, the appointment of the State Government by the Federal Government in my humble view, as an advantage, shall: aid the Federal Government in the discharge of its constitutional functions and duties within that State; it would also reduce the economic impacts of such projects on the shoulder of the Federal Government; also, there would be efficiency in the administration of the public projects as the State Government being closed to the locals in the State and understands their languages and diversities, would be able to harness their manpower resources towards actualizing the Federal Government’s projects assigned to the State Government for efficient performance; etc. Also, the State Government would (as an advantage) also: be able to generate revenue for the State Government from the contractual agreement; it would generate employment opportunities for indigenes and residents of the State Government; it would also breed developments in the State Government; where such appointment is in regard to security, the State Government would be able to use its vigilante apparatus in the State to deal with insecurity in the State since the Federal Government in the real sense, does not have a State occupied by Federal Government alone.

I therefore humbly recommend that the State Government and the Federal Government of Nigeria should consider utilizing the opportunity of ‘AGENCY’ relationship for the purpose of efficient and effective administration of the government system and for public good and national developmental interest.

For any further engagement or consultation or discussion with me on this topic by the reader of this paper, I can be reached on the below contacts.

Email: [email protected] 08168292549 (WhatsApp number and for calls).