I wrote an article entitled “NTDC’s power can’t stand the test of law” in Escape column of Nse-Obong Okon Ekong in Thisday issue of 15th December, 2002. I also had an elaborate article published in Thisday of 1st February, 2004 on same subject matter citing relevant court cases and statutory provisions.
Expectedly, NTDC responded on February 15, 2004 in the same Newspaper the response did not address the legal issues raised by me. Hence, when the rift between which level of Government should regulate tourism industry came to a head in 2010, I advised Lagos State based Hotels to comply with the registration formalities imposed on them by the Lagos State Hotel Licensing Office.
To avert imminent disturbance, I equally advised that they keep renewing with NTDC on the basis that the court would soon resolve the imbroglio. The subsequent Supreme Court decision of June 2013 did not come as a surprise to some of us as I was only vindicated.
Proposed NTDC Bill.
I have read the proposed bill entitled “A bill for an Act to Establish the Nigerian Tourism Corporation and for Related Matters” and saw a lot of legal flaws in same. The bill is an attempt to circumvent the clear pronouncement of Supreme Court in 2013.
Talking specifically, the major pitfall of the bill is the constitutional implications of the subject matter of the bill. I will dwell on this now and refer to specific sections of the bill thereafter.
In the case of AG Federation V AG Lagos State [2013]L PELR – 20974[SC] it was held thus:
“The contention of the plaintiff that matters pertaining to the regulation; registration, classification, grading of hotels, motels, guests houses, restaurants, travel and tour agencies, and other hospitality and tourism related establishment are matters within the Exclusive Legislative List, cannot be sustained”.
In view of the above judicial authority, it is no longer in dispute which level of Government has power to regulate tourism business in the states of Nigeria Federation.
Rather than attempting to pass another NTC Law, what the NASS ought to have done was to advise the Presidency to treat the current legally battered NTDC Act in accordance with Section 315 of the 1999 Constitution dealing with existing law.
What is an Existing Law?
Section 315 [2] iii b of the 1999 Constitution as Amended define same thus:
“Existing law means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date”.
In other words, all laws and rules made before coming into force of the 1999 Constitution (i.e. 29th May, 1999) are existing laws.
o doubt NTDC Decree of 1992 came into force before the 1999 Constitution (as amended), hence, it qualifies as an existing law.
How an existing law supposed to be treated.
“315. [1] Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
[a] an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
[b] a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
[2] The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
Who is an appropriate authority?
[i] the President, in relation to the provisions of any law of the Federation.
[ii] the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or
[iii] any person appointed by any law to revise or rewrite the laws of the Federation or of a State;
In reality, Section 315 was intended to harmonize Laws passed during Military regime with the delineation of legislative powers brought into place by the subsequent constitutions.
During the Military regime even though Nigeria was operated as a Federating States, yet the federal structure was on paper. The Federal Military Government could promulgate a decree over any subject matter while no state can pass any Edict without the blessing of the Federal Military Government. With the coming in place of the constitution, section 315 was put in place to enable modification of all such laws in accordance with the division of legislative powers under the constitution.
The Supreme Court had made it clear that the subject matter of NTDC Act is a residual matter, the only option open to the Federal Government is to apply the treatment prescribed by Section 315 of the constitution to the law.
Rather than proposing a new bill which is calculated to achieve same purpose invalidated by the Supreme Court in 2013, the President should modify the NTDC Act to be a law applicable to the Federal Capital Territory only. The bill if passed in its present form will end up same way the earlier NTDC Act ended.
Similar situation
In A.G. Lagos State v A.G. Federation & Ors [2003] 12 NWLR [pt 833] 1 SC 114.
In view of the Nigerian Urban and Regional Planning Decree, the Lagos State Government various planning laws were being restricted in respect of certain Federal Government allocated lands in Lagos.
Similarly, the Lagos State Government Maser Plan could also not be implemented for the same reason. Consequently, the Lagos State Government filed an action at Supreme Court against the Federal Government and later other 35 states were joined as co-defendants.
The Supreme Court held inter alia as follows:
i] That since the Urban and Regional Planning Act was in existence before the promulgation of the 1999 Constitution, it qualifies as an existing law within the meaning of Section 315[1] of the Constitution.
ii] That if a Decree promulgated by the Federal Military Government for the entire Federation on a subject which ordinarily would have been the exclusive matter for the state remain an existing law after the exist of the Military, it becomes a law deemed enacted by the State House of Assembly.
[ii] That in view of the fact that the subject matter of Nigeria Urban and Regional Planning Act is a residual matter, only state could validly legislate on it.
Similar things occurred in Emelogu vs The State (1988) 2 NWLR [pt 78] 524 and A.G. Abia State vs A.G. Federation [2003] 4 NWLR [pt. 809] 124 SC.
In these instances, the Federal Government did not resort to reenacting the nullified laws by changing some nomenclature in same, but merely obeyed the court decision.
Implication of the Supreme Court decision on the bill.
If the proposed bill is limited in its operation to FCTA, same would have been in consonance with the Supreme Court judgment which ruled that Tourism is a residual matter for states and by extension FCTA. However, since the bill in scope is for the whole federation the underlisted sections of the bill are to be amended thus:
- SECTION 15:
15 [c]: Going by the Supreme Court pronouncement, the regulation, accreditation, supervision of tourism enterprises in any state of the federation is the duty of the states’ governments, the federal government cannot usurp this powers under the guise of ensuring public health or protecting consumers. The protection of consumers is a duty endowed on the Consumer protection Council by the Consumer Protection Council Act, Cap C25, LFN 2004, the Act aptly covers tourism products consumers.
Hence, it should be deleted.
15 [f]: This clause can only be valid if the Federal Government policy in issue is within the purview of the Federal Government legislative competence.
It should be modified appropriately.
- SECTION 16:
16 [b]: This is a duplication of a function performed by NIHOTOUR; – it should be deleted.
16 [d]: The legal value of technical advice rendered by the corporation to the states and local governments is nil. It should be deleted.
16 (f): The recommendation of requisite building designs is a function of State governments by the authority of ATTORNEY-GENERAL OF LAGOS STATE V. THE ATTORNEY-GENERAL OF THE FEDERATION & ORS [2003] LPELR – SC. 353/2001. The federal government cannot under the guise of regulating the hospitality encroach on this power.
This section should be deleted.
- SECTION 17:
The provision of this section should be limited to the FCT.
It should be amended as such.
SECTION 18:
- There will be a clash of interest in the corporation as it seeks to establish a player in the industry (Tour Operating Company) for its benefit while it is also the regulator of the industry.
- SECTION 22:
22 [f]: The incomes accruable to the Tourism Development Levy should be limited to the extent to which Section 27 is recommended for limitation by this summary.
- SECTION 24
- 22[(a]: The opening sentence should be amended to read “The corporation shall prepare and submit to the appropriate Minister or ministry…” as “appropriate corporation” has not been defined in the bill.
SECTION 25:
The opening sentence should be amended to read “The corporation may, with the consent of the appropriate Minister or ministry.
SECTION 27:
27 [b]: Donations from states governments, local government councils, area councils should be deleted from the sources of fund.
27 [d]: The reality of the applicability of REMITA [money from executed projects will be paid into the Federation Account/Treasury Single Account] should be at the backdrop of the mindset of the drafters of the bill. Such money cannot be assessed by the Corporation.
SECTION 28:
28 [4] [i]: This provision should only be limited to the Federal Capital Territory.
28 [4] [k]: This is a duplication of a function of NIHOTOUR.
SECTION 29:
29 [1]: Having chosen to make the Tourism Development Levy [Levy] complementary to the Tourism Development Fund [Fund], the Levy should be stated as a source of income for the Fund in section 26.
29 [2] [ii]: This is a ploy at taxing rooms and tourism facilities. In the light of the Supreme Court decision such will be legally impossible.
29 [2[ [iv]: Companies Income Tax Act needs to be amended for this provision to be effective.
SECTION 31-38:
The application of the sections should be limited to Federal Capital Territory as any means of extending same to the states will be constitutionally resisted by the state governments.
RECOMMENDATION:
- Regulations of the Tourism industry and the attendant powers should focus solely on the Federal Capital Territory.
- The bill in the knowledge of the Supreme Court decision can focus more on tourist traffic, attendant issues and benefits.
Chief Sam Alabi, [LLM] is the Company Secretary and Legal Adviser, Eko Hotel Limited and Chairman, Board of Trustee. Federation of Tourism Associations of Nigeria [FTAN]