•Can a law not in existence be repealed?
The attempt of the House of Representatives to introduce Central Gaming Bill 2025 to repeal an already nullified National Lottery Act 2005 has raised questions in the gaming world and among stakeholders about if it is possible to repeal what does not exist. ADEOLA OJO reports.
On Friday, November 22, 2024, the Supreme Court while giving judgment in a suit filed in 2008 by Lagos and other states of the federation to challenge the National Assembly’s powers to regulate lottery activities nullified the National Lottery Act 2005 in its entirety and issued an order of perpetual injunction restraining the Attorney General of the Federation or any other agency of the Federal Government from implementing the provisions of the National Lottery Act within the territories of the states or continuing to implement or enforce the provisions of the act within the territories of the states
He further issued an order of perpetual injunction restraining the first defendant, its agents, or agencies of the Federal Government from continuing to implement or enforce the provisions of the act within the territories of the plaintiff states
The states sought, amongst others, a declaration of the court that the regulation of lottery activities does not fall within the remit of the National Assembly, under Part 1 of the Second Schedule of the 1999 Constitution as amended and is consequently not empowered to enact the National Lottery Act.
A seven-member panel of the court in a unanimous judgment, with the lead judgment delivered by Justice Mohammed Idris, had held that the National Lottery Act 2005 should no longer be enforced in all states, except the Federal Capital Territory, in respect of which the National Assembly is empowered to make laws and the National Assembly lacked the powers to legislate on issues relating to lottery and games of chance.
Other members of the panel are Justice Uwani Abba-Aji (who presided), Justice Mohammed Garba, Justice Emmanuel Agim, Justice Simon Tsammani, Justice Stephen Adah, and Justice Jamilu Tukur, agreed that such powers only reside with the state Houses of Assembly, which possess exclusive jurisdiction over lottery and games of chance and other related issues.
The court also declared that, having regard to the clear provisions of Section 4(2) & (3) of the constitution, the National Assembly lacks the powers to make any legislation for the control and regulation of lottery in Nigeria.
Justice Idris also declared that, having regard to the provisions of Section 4(7)(a) & (c) of the First Schedule to the Constitution the House of Assembly of Lagos State and other states have the powers, to the exclusion of the National Assembly, to make laws for the regulation and control of lottery within their states.
The judge also declared that sections 17, 18, 19 20, and 21 of the National Lottery Act 2005 made by the National Assembly are inconsistent with the Constitution, adding that the National Lottery Act is inconsistent with the provisions of the 1999 Constitution.
The judgment significantly altered the legal and regulatory framework governing lottery operations in Nigeria; it also set the record straight for investors and relevant stakeholders in the gaming industry who have hitherto been faced with the duplicity of laws due to concurrent statutory obligations placed on lottery licences. And while this decision ends the age long dispute in the sector, it also poses challenges for industry operators in terms of the pathways toward ensuring regulatory compliance and business continuity. Also, each state will want to regulate online lottery activities accessed by users in their domain and such action will introduce the problem of duplicity of laws which had just been resolved in addition to issues of compliance, regulatory oversight and the continued operation of lottery services within the telecommunications and Value-Added Services (VAS) sectors.
Background
Since 2003, the Lagos State Government has regulated every aspect of gaming and lottery activities in the state, including control and taxation through enactment of laws and had ensured compliance with all its gaming laws by individuals and corporate entities; in 2003, it enacted the Pools and Betting Control Law 2003 and the Pools Betting Tax Law 2003, in 2004, it enacted the Lagos State Lotteries Law 2004, in 2007, the Casino and Gaming Regulatory Authority Law 2007 was enacted alongside the Casino and Gaming Regulations 2008.
Also in 2008, the Lagos State Lotteries Law 2004 was amended by the Lagos State Lotteries (Amendment) Law 2008 and in 2021, the Lagos State Lotteries and Gaming Authority Law 2021 was enacted and it had a long title that described it as “a law to establish the Lagos State Lotteries and Gaming Authority, to harmonise all laws relating to gaming activities in Lagos State, provide for the regulation and control of all gaming activities, and for connected purposes.”
Section 107 of the 2021 Law repealed the Lagos State Lotteries (Amendment) Law 2008, the Lagos State Lotteries Law 2004, the Casino and Gaming Regulatory Authority Law 2007, the Casino and Gaming Regulations 2008, the Pools Betting Control Law 2003 and the Pools Betting Tax Law 2003 ensuring that the state asserted adequately, its legislative authority over matters connected with games of chance.
The enactment of the National Lottery Act 2005 by the National Assembly for nationwide application led to a jurisdictional dispute and confusion among stakeholders in the gaming and lottery business, as they were caught between compliance with Federal law and Lagos State law though the Lagos State Lotteries Law 2004 predates the now-nullified National Lottery Act of 2005. Until the nullification, operators in the gaming and lottery industry appeared to comply with both the now-defunct Federal law and the Lagos State laws.
The dispute over whether the Federal Government or State Governments had exclusive control over lottery and gaming regulation started long before the last matter; In 2005, the Lagos State Government filed an Originating Summons on February 2, 2005, before the Lagos State High Court against National Sports Lottery Ltd and National Sports Lottery Management Company Ltd asking for a court declaration that the federal government had no legal right to carry on, operate, or conduct any lottery business, by any name or mode, to members of the public in Lagos State without first obtaining a licence issued by the Executive Governor of Lagos State under the Lagos State Lotteries Law 2004 as well as a perpetual injunction restraining the federal government from conducting such business without obtaining a licence from the state in accordance with the Lagos State Lotteries Law 2004.
The federal government challenged the jurisdiction of the Lagos State High Court through a preliminary objection and this escalated through the appellate courts, eventually reaching the Supreme Court, which, in 2023, ruled in favour of the Lagos State High Court’s jurisdiction. But while the appeal against the Court of Appeal’s verdict was still pending before the Supreme Court in 2008, the Lagos State Government, through its Attorney General, invoked the original jurisdiction of the Supreme Court pursuant to Section 232(1) of the Constitution to challenge the validity and constitutionality of the National Lottery Act 2005 leading to the nullification of the Act.
Central Gaming Bill 2025
Recently, the House of Representatives introduced the Central Gaming Bill 2025, which is an initiative of the Deputy Speaker of the House of Representatives, Hon. Okezie Kalu and six others, an attempt that has been described as a bid to resurrect the nullified National Lottery Act (NLA). The Bill seeks to repeal the National Lottery Act 2005 and to regulate all forms of online and remote gaming across all geographical boundaries of the federating units has reportedly passed its second reading on the floor of the House.
But there are arguments that any law enacted by the National Assembly to regulate games of chance either online or retail is unconstitutional, null, and void in light of the provisions of Sections 4(2), 4(4)(a), and 4(4)(b) of the Constitution which limit the legislative competence of the Federal Government to making laws for the peace, order and good government of the Federation or any part thereof only in relation to matters contained in the Exclusive Legislative List (as set out in Part I of the Second Schedule) and matters contained in the Concurrent Legislative List (as set out in the First Column of Part II of the Second Schedule to the Constitution), as well as any other matter over which it is expressly empowered by the Constitution.
This was also settled by the Supreme Court that games of chance fall outside the legislative competence of the Federal Government and are exclusively within the legislative authority of the federating states as Section 4(7)(a) of the Constitution empowers the House of Assembly of each state to make laws for the peace, order, and good governance of the state or any part thereof concerning any matter not included in the Exclusive Legislative List.
There are many issues cropping up following the introduction of the Bill which proposes to repeal the already annulled National Lottery Act of 2005. In his analysis on the issue, Abiodun Olatunji, a Senior Advocate of Nigeria and a Partner at Abdullahi Ibrahim & Co, stated that it raises a fundamental question on whether the House of Representatives, by the Bill, is constituting itself into an appellate body over a final decision of the Supreme Court, notwithstanding the clear provisions of Section 235 of the Constitution?
“The answer is obvious—such an action is entirely unconstitutional. The National Assembly is a creation of the Constitution and derives its authority and powers from it. It must, therefore, conform to, respect, uphold, and implement all the provisions of the Constitution to the letter. It cannot act in negation of, or in defiance of, the Constitution.
“It is, therefore, my humble submission that the Central Gaming Bill 2025, being unconstitutional, should be discarded, and all legislative work on it should be set aside. I take this opportunity to call on the Honorable Attorney General of the Federation, as the Chief Law Officer of the Country, to advise the National Assembly on the unconstitutional nature of this Bill and the necessity of respecting the decision of the Supreme Court,” he stated.
It is argued that the law the Bill is trying to repeal according to the interpretation of the Supreme Court judgment is null and void as the entirety of the National Lottery Act 2005 has been nullified and no one has the power to repeal what is not in existence. Also, the National Lottery Regulatory Commission (NLRC) has no legal authority over lottery operations in any state of the Federation as it stopped existing after the judgment and licenses, permits and approvals previously issued by the NLRC for operations are no longer valid.
Currently, each state now has exclusive legislative and regulatory authority over lottery operations and Games of Chance within its jurisdiction and operators must now comply with individual state laws and obtain licenses from respective state governments.
The National Lottery Trust Fund (NLTF), which was funded through contributions from lottery operators under the annulled Act, no longer has a legal basis to demand payments from lottery businesses as it has been abolished by the judgment and Federal laws on lottery taxation, licensing, and compliance enforcement have become unenforceable in the states.
While legal experts are of the opinion that the Central Gaming Bill 2025 is legally dead on arrival as it flouts every existing provision of law that is in existence, they advice that states needs to work with other stakeholders to chart a framework that will match standard compliance procedures.
“The post-National Lottery Act era requires all stakeholders to think differently, act strategically, and collaborate effectively. We must ensure that the telecommunications and lottery sectors remain viable, innovative, and legally compliant under this new decentralized regulatory framework.
“The judgment though creates significant challenges for market players but it also presents an opportunity for State Governments to establish clearer and more competitive regulatory frameworks. Businesses must swiftly adapt to these changes to ensure continued operations while minimizing legal and compliance risks,” Olatunji (SAN) added.
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