The Legal Propriety of Ungazetted Acts or Regulations in Nigeria
Law-making in Nigeria is strictly the primary function of the legislative arm of government, whether at federal or state level. This function is enshrined under the broad heading - “Legislative Powers” in section 4 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution). Section 4(1) of the Constitution provides that:
“The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”
The Constitution further outlines the procedures for making of laws which typically begins with the first stage, where the bill is presented before the constituted legislative body through to the final stage when the President assents. In line with the provisions in section 58 of the Constitution, the President’s signing of a bill into law gives legal force or effect to such Law or Act. Also, where an Act gives anybody or a committee the inherent power to make regulations, rules or policies to operate such Act, such regulations, rules, or policies are deemed legally effective if made by the designated person or committee.
Official Gazetting of Legislation
Official gazetting of laws upon assent by the President has become a conventional and administrative process of making laws in Nigeria. Official gazettes are primary sources of law published by federal, state, or local governments to disseminate new legislation, regulations, and decisions of governmental bodies. The essence of this administrative process is principally to create public awareness about such Acts, Regulations, and Policies. The official gazette serves as proof of the existence and authenticity of a law.
While it is a settled conventional and administrative principle that all regulations, ordinances, etc made under an Act are required to be published in the Official Gazette, the pertinent question is: What happens to Acts, Regulations, and Ordinances that are not gazetted? What is their legal force or validity?
The Legal Basis for Ungazetted Laws in Nigeria
Ungazetted laws or regulations are legal enactments that have not been officially published in the Federal or State Government Gazette. While the gazette proves the existence and authenticity of a law or regulation, failure to gazette does not necessarily invalidate such a law or regulation. Also, where a Principal Act provides that a Minister or any other person can make regulations or rules for the operation of the Act, such regulations if duly made by the Minister or other designated person in line with the process outlined in the Principal Act shall have full legal effect and force. These apply to tax legislations also.
However, whether an ungazetted law is enforceable depends on several legal principles and precedents, which are considered below.
Constitutional Provisions
The 1999 Constitution of the Federal Republic of Nigeria (as amended) is the supreme law in Nigeria. As such, any law or regulation that is inconsistent with the Constitution becomes null and void to the extent of the inconsistency. Section 1(3) of the Constitution states 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.”
However, the Constitution itself does not mandate that laws must be gazetted for such laws to be enforceable or effective, though certain statutes require this for official recognition. Therefore, it would be an aberration to hold the view that Acts or Regulations must be gazetted before being considered legal or effective. Such a view contradicts the provisions of the Nigerian Constitution.
Interpretation Act, Cap I23, LFN 2004
The Interpretation Act governs how statutes and subsidiary legislations are to be interpreted and gives guidance on the operation of laws in Nigeria. Section 2 of the Interpretation Act stipulates that the operation or commencement of a law may be determined by its publication or by another mechanism specified in the law itself. Section 2 provides that:
- “An Act is passed when the President assents to the Bill for the Act whether or not the Act then comes into force.
- Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-
- in the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
- in any other case, on the day when the enactment is made.
- Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day “
The above provisions imply that a signed law or regulation becomes effective on either “the day it is passed” or “on any other date or in line with any other provision that is stipulated in the law or regulation”. Once effective, such law or regulation then becomes legally enforceable. This means where the law or regulation does not stipulate that publishing it in the official gazette will be a pre-condition for its enforceability, then failure to gazette it should never affect its validity or legality.
Judicial Decisions on Ungazetted Laws
Judicial decisions form part of the secondary law-making process in Nigeria. They help with the interpretation of laws. The courts have ruled about the propriety of ungazetted laws in Nigeria as represented in the cases below:
-
Uwaifo v. Attorney-General of Bendel State (1982) LPELR-3448(SC)
In this case, the Supreme Court of Nigeria held that laws take effect from the date specified for their commencement and not necessarily from the date of publication in the Gazette unless the law expressly states that gazetting is a pre-condition for its operation. The implication of this ruling is that: failure to gazette a law does not automatically invalidate it unless the law specifically stipulates so.
-
Afolabi v. Governor of Oyo State (1985) LPELR-215(SC)
The Supreme Court held that administrative orders, policies, or laws that have not been gazetted could still be valid, provided they meet all other requirements of due process and do not conflict with statutory or constitutional provisions. Gazetting, while important for public notice, is not always a pre-condition for validity.
-
Chief Felix Ogunmade & Ors v. Federal Republic of Nigeria (2003) LPELR-2327(SC)
The court ruled that the failure to gazette a regulation may render it unenforceable against the public unless there is evidence that the public was made aware of the regulation through other means. This therefore implies that if the public is overwhelmingly aware of any regulation or law that is not gazetted, the presumption of enforceability is then deemed valid. The principle of fairness in the enforcement of laws implies that the public should have access to laws that govern their conduct.
While it is agreed that the publication of a law or regulation in an official gazette gives authenticity to such law or regulation, this does not extinguish the fact that where a law or regulation was not made by following the due process as contained in the enabling statute, publication of such law or regulation in an official gazette does not make it valid or legal. This was the decision of the Tax Appeal Tribunal in Check Point Software Technologies B.V Nig Ltd v Federal Inland Revenue Service where the Tribunal declared the Income Tax (Country-By-Country Reporting) Regulations, 2018 as void, invalid, or illegally made regulations. This decision was on the premise that ‘the Regulations’ was not made by the FIRS Board, which is the body empowered by the enabling statute to make such regulations.
Finance Act 2023 and Deduction of Tax at Source (Withholding) Regulations 2024
- The Finance Act 2023
The Finance Act 2023 (FA 2023) was signed into law by former President Muhammadu Buhari on 28 May 2023, and was meant to take effect on the same day. However, President Bola Ahmed Tinubu subsequently issued an executive order in July 2023, upon his assumption of office to postpone the commencement of the FA 2023 to 1 September 2023.
Though the FA 2023 has not been published in the official gazette since it was signed into law by the President, the various Tax/Regulatory authorities as well as taxpayers and the general public have continued to fully apply the provisions of the Act. This, therefore, underscores the fact that an Act or Regulation does not need to be gazetted before it is considered legal or valid, except where a law specifically provides otherwise.
- Deduction of Tax at Source (Withholding) Regulations 2024
The Deduction of Tax at Source (Withholding) Regulations 2024 (WHT Regulations 2024) was made by the Minister of Finance based on the powers conferred on him by the enabling statute. The WHT Regulations 2024 was expressly set to commence on 1 July 2024. However, since its publication by the Federal Ministry of Finance, an official gazetted copy has not been published.
This halt in the administrative procedure of publishing the Regulations in the official gazette has been misconstrued by some tax administrators as a basis for invalidating the ‘WHT Regulations 2024’. Their argument is that ‘the New Regulations’ lacks proper legal force just because it has not been gazetted. Nonetheless, it is clear from our comprehensive analyses presented above, that such a view is purely a fundamental misconception that is contrary to the extant provisions of the Nigerian Constitution and all available judicial precedents.
Conclusion
An ungazetted law or regulation is not automatically illegal or invalid in Nigeria except a legislation specifically provides that gazetting such law or regulation would be a pre-condition for its legality or validity. The date of commencement of a law is crucial in determining its enforceability; meanwhile, gazetting is merely an administrative or conventional process that is used to notify the public, but is not relevant for determining the law’s inherent legality. Judicial precedents have affirmed that the failure to gazette a law or regulation does not necessarily invalidate it, but may only affect its enforceability where such failure has denied the public the reasonable opportunity of being aware of the said law or regulation.