LAW AND REGULATION IN NIGERIA
move from one person to another or from place to place in relation to lottery. Lottery is an activity of probability, without influencing the definite utility of goods and services. For purchasers of tickets who do not win the prize money in lottery, they part with the value given to secure the ticket but do not receive anything in exchange for such value. Consequently, such an act cannot be classified under trade and commerce which pertains to exchange of goods and services for a consideration. Where there is no agreement to a definite exchange, such activity is not transactional in nature and thus cannot be modified to be trade or commerce. To those whose tickets do not qualify for the prize money, no goods or services move to them and as a result, there is no form of exchange. It is therefore apparent that lottery is entirely distinct from trade and commerce. Engrafting lottery into trade and commerce is an intricate act that is tantamount to misinterpretation of the provisions of the Constitution. To infer the inclusion of lottery under Item 62, 67 and 68 of the Exclusive Legislative List is an attempt to clothe the National Assembly with powers that it does not have. The courts are only permitted to expound the meaning of legislative provisions but refrained from expanding them. 13 The courts are not allowed to ferret for meanings of provisions beyond the law. 14 A legislative authority that claims to legislate in accordance with what the Constitution has enacted must show how it derived its legislative authority to do so from the Constitution itself. 15 An inference to words not contained in the Constitution can be said to be an extravagant interpretation of the Constitution. Also, party to a suit has no legal right to expand the wordings of a statute. 16 The Court considered some decisions of the Indian Supreme Court as persuasive authorities on the subject matter when the court held thus: “In the case of State Of Haryana Vs. Suman Enterprises & Ors (1994) 4 Scc 217 (1994) 4 SCC 217, the Supreme Court of India observed the following regarding lotteries:
sale of lottery tickets, unlike trade and commerce, does not involve an exchange of goods or services, but merely a game of chance, which is a form of gambling.” Also, in BR Enterprises Vs. State Of Uttar Pradesh (1999) 9 SCC 700, the Supreme Court of India addressed the question of whether lotteries fall within the scope of “trade” and “commerce” as guaranteed under Article 301 of the Constitution which ensures the freedom of trade, commerce and intercourse throughout India. The Court held that lotteries do not constitute trade, commerce or intercourse within the meaning of Article 301. The Court reasoned that lotteries are fundamentally a form of gambling and thus do not qualify as trade or commerce. Given that the decisions referenced above reflect a sound exposition of the law, I find them persuasive and shall accordingly adopt their reasoning.”
The Court then concluded in the following words:
“In the light of the foregoing, I hold that lottery does not constitute “trade and commerce” as envisaged under item 62(a) of the Exclusive Legislative List as lottery is fundamentally a game of chance lacking the certainty, mutual exchange and reciprocity typically associated with trade and commerce. Unlike traditional commercial transactions involving a defined exchange of goods and services between parties, lottery merely offers participants the prospect of winning without any assured return or specific value in exchange. Therefore, a lottery cannot be classified as ‘trade and commerce” under the relevant item in the Exclusive Legislative List, as it fails to meet the criteria of economic transaction involving the definite transfer of goods and services.” Having found that Lottery is not a form of trade or commerce, the Defendants could not successfully justify the National Assembly’s enactment of a law to regulate lottery in Nigeria. Consequently, the Supreme Court declared the National Lottery Act, 2005 unconstitutional and proceeded to nullify the Act. It is our considered view that this decision reflects the appropriate interpretation of the Constitution and the learned Justices of the Supreme Court must be commended for the sound decision.
“A lottery is not a trade or commerce in the conventional sense. It involves an element of chance and, therefore, cannot be classified as a commercial transaction or business activity. The 13 Dickson v Sylva (2017) 8 NWLR (pt 1567) 167 14 Ogbuinya, O. F ,Guidelines to Interpretation of Nigerian Statutes, Snaap Press Limited (2019) p.81 15 INEC v Musa (2003) 3 NWLR (pt 806) 72 16 Ojukwu v Yar’adua (2009) 12 NWLR (pt 154) 50
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IMGL MAGAZINE | MARCH 2025
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