By joshua 
It is unconstitutional to enact “Central Gaming Bill” into Law, Chartered Tax Professional writes NASS
Ayo Ola
A Chartered Tax Professional, Chief, Dr. Francis U. Ubani, has opined that the proposed repeal of The National Lottery Act, No. 7 of 2005” and “The National Lottery (Amendment) Act, No. 6 of 2017” respectively, and to enact “Central Gaming Bill” into law are unconstitutional.
He also argued that they are against a recent judgement of the Supreme Court of Nigeria.
These were contained in letters by Ubani to the Senate President, Senator Godswill Obot Akpabio and The Speaker, House of Representatives, Tajudeen Abass, which were copied to the Attorney General of the Federation and Minister of Justice, Chief Lateef Olasunkanmi Fagbemi (SAN). Acknowledged copies of the letters were made available to journalists on Monday.
He said the bill is fundamentally ultra vires as it aims to repeal a law that has already been nullified by the Supreme Court.
Below is the letter:
Dear Sirs,
RE: BILL FOR AN ACT TO REPEAL THE NATIONAL LOTTERY ACT, NO. 7 OF 2005 AND THE NATIONAL LOTTERY (AMENDMENT) ACT, NO. 6 OF 2017, RESPECTIVELY, AND TO ENACT THE CENTRAL GAMING BILL TO REGULATE THE OPERATION AND BUSINESS OF ALL FORMS OF ONLINE AND REMOTE GAMING ACROSS THE BOUNDARIES OF THE FEDERATING UNITS AND BEYOND THE BOARDERS OF NIGERIA, PROVIDE FOR THE CONDUCT OF GAMING IN THE CAPITAL TERRITORY AND ENHANCE REVENUE GENERATION FOR THE FEDERATION AND FOR RELATED MATTERS.
BACKGROUND
It has come to our notice that the House of Representatives issued a public notice of a proposed public hearing on a Bill for an Act to “Repeal The National Lottery Act, No. 7 of 2005” and “The National Lottery (Amendment) Act, No. 6 of 2017” respectively, and to enact “Central Gaming Bill” into law, to regulate the operations and business of all forms of online and remote gaming activities across the geographical boundaries of the federating units and beyond the borders of Nigeria, provide for the conduct of gaming in the Capital Territory and enhance revenue generation for the Federation and for related matters.
We have painstakingly reviewed the provisions of the proposed “Central Gaming Bill 2025” and are of the firm opinion that the proposed Bill is unconstitutional, given the provisions of the Section 4 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and in light of the recent judgement of the Supreme Court of Nigeria in Suit No; SC/1/2008, LAGOS
STATE & 21 ORS. VS. (1). ATTORNEY GENERAL OF THE FEDERATION, (2). THE NATIONAL ASSEMBLY & 14 ORS which clearly established the fact that the National
Assembly lacks both Constitutional Competence and Legal authority to make any law on Lottery or game of chance for the corresponding Federating State Units in Nigeria.
It is important to note that this bill is fundamentally ultra vires as it aims to repeal a law that has already been nullified by the Supreme Court in Suit No; SC/1/2008, LAGOS STATE & 21 ORS. VS. (1). ATTORNEY GENERAL OF THE FEDERATION, (2). THE NATIONAL ASSEMBLY & 14 ORS in a unanimous judgment of a full panel of Seven (7) justices of the Supreme Court.
This renders the proposed legislation profoundly defective from the beginning.
It is imperative to state here for the records that the National Assembly was the 2nd party to the Supreme Court judgement and the decision is mandatorily and expressly binding on the House of Representatives with a compulsory obligation to ensure that they abide by it, strictly obey the judgement, not ignore, contravene and/or disregard the well-considered judgement of the full. panel of Seven (7) justices of the Supreme Court.
Any other move therefore, towards attempting to enact another Federal Legislation on any form of gaming, in all its ramifications, would be in total violation of the Supreme Court judgement and openly undermines the principles guarding the rule of law. Furthermore, the Supreme Court clearly and unmistakably defined and held that Lottery, Casino, Sport-betting, and the likes are games of chance, notwithstanding whether it is played through online, remotely or otherwise in retail channels and shops. It is still residual which is obviously within the exclusive prerogative of the State Governments. The National Assembly, through the House of Representatives, attempting now to legislate on the already nullified law, is akin to bringing back the same law through the back door.
Reading the judgement of the Supreme Court in Suit No: SC/1/2008, LAGOS STATE & 21 ORS. VS. (1). ATTORNEY GENERAL OF THE FEDERATION, (2). THE NATIONAL ASSEMBLY &14 ORS, the Defendants advanced the argument that lottery operations are mostly conducted online, and therefore, the Constitution should be interpreted to vest legislative power in the 2nd Defendant, which is the National Assembly and the National Lottery Regulatory Commission. See page 28 of the said judgement reproduced below:
“In response to the contention of the Defendants that lottery is now mostly carried out online and that the Constitution should be interpreted to confer legislative powers on the 2nd Defendant, learned counsel for the Plaintiffs further rejected the Defendants' assertion that the online nature of modern lottery operations necessitates Federal regulation. It was argued that the State laws governing lottery activities adequately addressed and incorporated provisions for online lottery, rendering Federal intervention unnecessary and unwarranted”. (Page 28 of the judgement in Suit No: SC/1/2008).
What the above assertion means is that the Counsel to the Plaintiffs' submitted, and the Supreme Court agreed with the submission that the States have the requisite legislative competence to regulate lottery operations, including online lottery and remote gaming and that the Constitution does not confer legislative power on the National Assembly to legislate on lottery and gaming matters throughout the Federation and expressly delineates the power of the National Assembly to make law on lottery and other related gaming activities to the Federal Capital Territory only.
The said judgment of the Supreme Court obviously declared that lottery and gaming activities, including online and remote gaming, are games of chance, and do not fall within the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1999. This infers that the National Assembly lacks the constitutional competence and legal authority to legislate any law in respect of lottery, online and remote gaming activities throughout the federating units of Federation of Nigeria.
Instead, the judgment specifically empowers State governments, through the Houses of Assembly, to legislate and regulate all lottery, online and remote gaming activities of all games of chance
within the territory of their respective States. What this means is that each State should immediately institute its own legal regulatory framework for their lottery, online and remote gaming conducts within the territory of their respective States and not to be subjected otherwise.
Simply put, the judgment decentralizes and transfers the legal regulatory power and authority over lottery, online and remote gaming operations to the State Governments and thereby allowing the state Houses of Assembly to have the exclusive legislative competence to make laws relating to games of chance in their respective States.
It is significant to know that there are other Countries that operate a Federal System of Government, like that of Nigeria; such as the United States of America (USA), Canada, Germany, Australia, India, Mexico and South Africa, all of these countries operate a State based legal regulatory framework for the control of gaming operations, notwithstanding the existence of online platforms across the world.
The Supreme Court, in the unanimous judgement delivered on Friday November 22, 2024, granted the following orders:
1. A DECLARATION is made that lottery or game of chance is not one of the 68 items in the Exclusive Legislative List in part 1 to the Second Schedule to the constitution of the Federal Republic of Nigeria 1999 (as amended) (“the 1999 constitution) in respect of which the National Assembly has the vires to make laws for the whole of Nigeria and not incidental or supplementary to any matter mentioned in the list.
2. A DECLARATION is made that having regard to the clear provisions of Section 4(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the 1999 Constitution”) the National Assembly lacks the vires to legally and constitutionally make any law to regulate and control the operation of Lottery in Nigeria.
3. A DECLARATION is made that having regard to the clear provisions of Section 4(4) (a), (b) and Part II of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the 1999 Constitution”) matters relating to lottery do not fall within the items which the National Assembly and the State house of assembly are concurrently empowered to make laws with regard thereto.
4. A DECLARATION is made that having regard to the clear provisions of Section 4(7) (a) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the 1999 Constitution”), the Lagos State Government (represented by the 1 st Plaintiff) and the 2 nd -22 nd Plaintiff’s State, have the power, to the exclusion of the 1 st and 2nd Defendants, to make laws to regulate and control the operation of lottery within theirStates.
5. A DECLARATION is made that having regard to the clear provisions of Section 4(4)(b), (7)(a) and Section 299(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the 1999 Constitution”) the power of the National Assembly to make laws to regulate and control the operations of lottery is limited by the 1999 constitution to only the Federal Capital Territory.
6. A DECLARATION is made that Sections 17, 18, 19, 20 and 21 of the National Lottery Act N145, Laws of the Federation of Nigeria, made by the National Assembly are inconsistent with the provisions of the 1999 Constitution.
7. A DECLARATION is made that the National Lottery Act, N145, Laws of the Federation of Nigeria is inconsistent with the provisions of the 1999 Constitution.
8. AN ORDER is made nullifying the entirety of the National Lottery Act CAP N145, Laws of the Federation of Nigeria.
9. AN ORDER of perpetual injunction is made restraining the 1 st Defendant either by himself, agents, privies, agencies of the Federal Government of Nigeria or Federation of Nigeria, or through anybody acting on their behalf from implementing the provisions of the Sections 17, 18, 19, 20 and 21 of the National Lottery Act CAP N145, Laws of the Federation of Nigeria, within the territory of the States of the Plaintiffs.
10. AN ORDER of perpetual injunction is made restraining the 1 st Defendant either by himself, agents, privies, agencies of the Federal Government of Nigeria or Federation of Nigeria, or through anybody acting on their behalf from taking any step or actions aimed at enforcing or continuing to enforce any/or all of the provisions of the National Lottery Act CAP N145, Laws of the Federation of Nigeria, within the territory of the States of the plaintiffs.
11. No order is made as to cost.
WHY THE PROPOSED BILL IS IN BREACH OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, (AS ALTERED).
a. Section 2(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) provides that: “Nigeria shall be a Federation consisting of States and a Federal Government." The essential feature of a Federal System of Government is the recognition of the separation of power and independence of each level of Government that comprises the Federation. Therefore, the power of each level of Government to legislate on a particular matter must follow the provisions of the Constitution. The Constitution made provisions for Exclusive Legislative List, Concurrent Legislative List and Residual Legislative Matters, and any legislation that is not within the scope of these Constitutional
provisions is null and void. This position is strengthened by the provisions of Section 1 (3) of the Constitution, which provides thus: "if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
b. Sharia Laws are constitutionally recognized in Nigeria by virtue of the provisions of Section 262 of the Constitution of the Federal Republic of Nigeria, 1999, and the laws are strictly being observed in many States, especially in the Northern part of Nigeria. In those States where Sharia Laws are being followed, the business of gambling, betting, gaming, lottery and all games of chance, are contrary to the principles and doctrines of the Sharia
Laws in practice in the said States.
c. The provisions contained in the proposed Bill, appears to have the intention to combine non-Sharia Law observing States and Sharia Law practicing States and robe them together into gambling, betting, gaming, lottery and games of chance activities, in total violation of Sharia Laws being practiced in many States of the Federation.
OUR POSITION IN THE PROPOSED BILL
In view of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), and the judgment of the Supreme Court in Suit No: SC/1/2008, LAGOS STATE & 21 ORS. VS.
(1). ATTORNEY GENERAL OF THE FEDERATION, (2). THE NATIONAL ASSEMBLY &; 14 ORS, we are of the strong opinion that the National Assembly does NOT have the “Constitutional Competence” to legislate on the proposed “Central Gaming Bill, 2025” and doing so would be ultra vires, and an overstretch of their “Constitutional Powers” to legislate as
provided in Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, (as altered).
We also assert that should the Bill be allowed to be passed into Law, it would clearly be inconsistent and in total violation of the Constitution of the Federal Republic of Nigeria, 1999, (as altered), and in serious contradiction with the Supreme Court Judgment under reference herein.
Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, (as altered), clearly stated that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency be void”. Therefore, should the National Assembly, through the House of Representatives, go ahead to legislate, and pass into law, the “Central Gaming Bill, 2025”, it would be inconsistent with the provisions of the Constitution and then null and void to the extent of its inconsistency with the
Constitution. It is obviously a common law that no statutory provision of any act of the National Assembly can supersede, override, neutralize, negate, contradict, repudiate, derogate, or abrogate the inviolable provisions and supremacy of the Constitution of the Federal Republic of Nigeria, 1999, (as altered) not-minding the explicit good intention of the Act in question.
SUGGESTION
Our suggestion in light of all the above mentioned, is to immediately:
Stop all processes leading to passing the Bill and discontinue any further consideration of it.
Be guided by the provisions of the Constitution with regards to the powers vested in the States’ House of Assembly to legislate on such Laws NOT included in either the Exclusive Legislative List, or Concurrent Legislative List of the Constitution, which clearly includes lottery and gaming matters in all its forms and varieties.
Acknowledge and Appreciate the provisions of the Constitution with regards to “Division of Taxing Powers”, and the constitutional powers vested in State Governments to regulate all gaming operations within the territory of their respective States in all its forms and types.
Abide by, and fully comply with the Judgment of the Supreme Court of Nigeria delivered on Friday November 22, 2024, referenced above, which nullified, in its entirety, the National Lottery Act, 2005. Anything to the contrary, is reintroducing same nullified Act, through the back door.
CONCLUSION
We are confident that the leadership of the current National Assembly is very much aware of their statutory obligation to uphold the provisions of the Constitution of the Federal Republic of
Nigeria, 1999, (as altered), having sworn to it, to so defend, and promote the Rule of Law in Nigeria. We therefore, urge and implore the National Assembly, through the House of Representatives, NOT to go ahead with the passing into law; the “Central Gaming Bill, 2025”, as doing so would be in total contravention of the 1999, Constitution and would be void and of no effect whatsoever. Finally, “Do Not Reintroduce the Nullified National Lottery Act, Through the Back Door, by Change of Nomenclature Please”.
Accept the assurances of my warmest esteemed regards at all times please.
Chief, Francis U. Ubani, PhD, FCTI.
Chartered Tax Professional & Tax Consultant to several States.