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The Nigerian Co-operative Societies Act, purports to legislate for the whole of the federation, while Item 32 of
the Constitution precludes the National Assembly from making laws on Co-operative Societies, established by
any law enacted by a House of Assembly.
23
The Constitution provides that, to qualify as an existing law or a
deemed Act of the National Assembly, the particular enactment must be made; subject to the provisions of the
Constitution, modified to bring it into conformity with the provisions of the Constitution, and must be a law
which the National Assembly is empowered by the constitution to make.
24
To make the enactment subject to the
provisions of the constitution, means and includes, making it come under the provisions of section 4 (2) thereof,
which is that, it must be a law with respect to a matter included in the Exclusive Legislative List as set out in Part
I of the Second Schedule to the Constitution, which is a list of matters over which the Federal Government
exercises exclusive legislative powers and as argued above, Item 32 of this list expressly precludes the National
Assembly from making laws on co-operatives societies incorporated under state laws, but with unlimited powers
in respect of co-operative societies incorporated within the Federal Capital Territory.
25
In effect, legislating for both the states and the federation as evinced by the contents of the Nigerian Co-operative
Societies Act 2004 is at variance and inconsistent with provisions of section 4 (2) of the 1999 Constitution and
therefore may undermine the status of the Act as an existing or deemed Act of the National legislature. It is
argued that,
26
even if the Act survives as an existing law, any court in Nigeria, especially any of the High Courts,
will find no difficulty in declaring it and or all its provisions invalid on the ground of inconsistency with the
provisions of section 4 (2) of the 1999 Constitution.
27
We pause here to observe that, the Act is a more modern
day enactment on the subject and reflects and addresses in some of its provisions, current trends and problems
associated with co-operative societies and against this backdrop, are we on firm ground in not joining to throw
away both the baby and the bath water, especially in the light of our earlier argument regarding the unassailability
of the National Legislatives powers, with respect to co-operative societies in the Federal Capital Territory as
opposed to those within the legislative competence of states?
The Act could be saved, by applying the “blue pencil” rule,
28
whereby the provisions of the Act which offends
aspects of the constitution, are severed from the valid aspects, so as to invalidate the offensive ones, without
rendering the entire legislation nugatory. In respect of the Act, if the “blue pencil” is run over the aspects of the
impugned legislation relating to the usurpation of powers of State Assembles, the residue of the legislation can
stand on its own and apply solely to co-operatives in the Federal Capital Territory, over which as stated the
National Assembly has prerogative.
29
Therefore, there is no justification for the invalidation of the whole Act as
articulated vigorously by Emiaso.
30
But assuming, the Nigerian Co-operative Societies Act, 2004 has failed to
survive as an existing law (which it does not as has been demonstrated above), it is trite that, until a court or any
tribunal established by law declares invalid any provision of an existing law on the ground of its being in
consistent with the provision of any other law, including any provision of the constitution, it remains a valid
law.
31
In this vein we submit humbly that, the Nigerian Co-operative Societies Act, is the supreme source of law
on the subject of Co-operative Societies in Nigeria, to the extent that any law made by a State House of Assembly
which is inconsistent with it, shall be void to the extent of its inconsistency.
32
In spite of the vigorous discussions
on the constitutionality or otherwise of the Act, the provisions of the Act and the States enactments are
substantially in pari materia, and their chances of collusion forlorn. The States enactments which are all virtually
lifted from the 1935 Co-operative Ordinance, engage our focus as the next source of co-operative societies law.
23
Ante
24
Constitution of the Federal Republic of Nigeria, section 315(1)
25
See ante
26
Emiaso, M. op. cit., p. 56
27
Section 315(3) of the 1999 Constitution provides that, nothing in the constitution must be construed as affecting the power
of a court of law or any tribunal established by law, to declare as invalid any provision of an existing law, on ground of its
being inconsistent with the provisions of any other law including any provision of the constitution.
28
This is the rule whereby the court severs the bad provisions of a law from the good ones, holding the good valid while
invalidating the bad ones without invalidating the entire legislation. Ukeji, R.N (2002), Nigeria Judicial Lexicon. Lagos:
Ecowatch Publications (Nig) Ltd. p. 37.
29
The classic example of the application of this rule is: Balewa v Doherty (1963) 2 SCNLR 155 which was relied on in AG
Ondo State v AG Federation (2002) NWLR (pt.772) 310
30
Emiaso , op cit., p. 55 – 56.
31
AG Abia State & Others v AG Federation & Others. ICLC 94 at 161 – 162.
32
Constitution of the Federal Republic, 1999 section 4(5)