By Amb. Hameed Ajibola Jimoh, Esq.
ACArb (Chartered Arbitrator), MTI Accredited Mediator (in view), FIGPCM, CGArb. (Certified Global Arbitrator), LPC (Licensed Peace and Conflict Resolution and Management Specialist), PC-WCM (Certified Specialist in ‘Workplace Conflict Management’), FIMC, CMC (Certified Management Consultant), CMS (Certified Management Specialist (with distinction in time Management), London) and Notary Public for Nigeria.
There have been some confusions and arguments on the application of the Arbitration and Mediation Act, Law of the Federation of Nigeria, 2023,- herein after referred to AMA- as to whether as a Federal law, it ‘covers the field’ or generally applies throughout Nigeria in all its facets? The arguments are strong in my intervention, in regard to Part I of the Act, especially in section 1(5)(b) and (c) of the Act and section 67(b) and (c) of the Act. Which provides thus
‘1 (5):
This Part shall apply to:
(b) inter-State commercial arbitration within the Federal Republic of Nigeria; and
(c) commercial arbitration within the Federal Republic of Nigeria’.
Also see section 67(1)(b) and (c) of the Act which provides thus
‘67(1) This part shall apply to
‘(b) Domestic commercial mediation;
‘(c) Domestic civil mediation;’.
Through the following paragraphs of this paper, my reference to section 1(5)(a) and (b) of AMA is also a reference to Section 67(1)(b) and (c) of AMA, except where I state otherwise.
Respectfully, critically analyzing the above provisions of the AMA, it seems that the legislators intended the Act to have general application throughout Nigeria (inclusive of its application to international arbitrations having regard to section 1(5)(a) of AMA). This is where the opinion of this paper lies in the contrary, with due respect to the law makers. This paper, with due respect to the law makers, is of the firm view that the provisions of AMA does not have general applications throughout Nigeria in some regard. The grounds for this opinion shall be laid bare in the preceding discussion in this paper. This paper then recommends awareness in this regard and for the attention of each of the States of the Federation, for necessary actions.
Background:
The silence of the criticism of the provisions of section 1(5)(a) and (b) of the AMA is really a disturbing one for me. I had taken some thoughts on the implications of these provisions. I had engaged some senior lawyers on the purport, effects and implications of these provisions. There was no direct response as to the position. This could only be so because of the confusion that the provisions have created. Hence, I have decided to make some legal researches towards sharing my opinion on the effect and implications of the provisions of the said section 1(5)(a) and (b) of the AMA. I shall share the ground for my view or opinion. This is just a contribution from me on the subject matter.
Introduction:
When human beings co-exist together, there are bound for disputes or conflicts to happen. Parties in resolving their disputes resort to a number of means. Some of these means may be ‘jungle justice’, where one of the disputing parties becomes a victim without fair hearing and or fair trial. The means may also be using litigation in the court of law as an alternative means of resolving the dispute. The law has encouraged parties to use alternative means in resolving their disputes where notwithstanding the disputes, parties can still come together and be better friends. This is generally known as ‘Alternative Dispute Resolution’-herein after referred to as ‘ADR’. Hence, the Nigerian law makers, especially the National Assembly, made the AMA to guide the ADR means of resolving the dispute. The law is indeed a good law and it is commendable. Nevertheless, this paper is of the view that the provisions of section 1(5)(a) and (b) of the AMA has acted beyond its limits. This paper argues that the AMA has limit which it must not cross; but which it has crossed by the implications of the provisions of the said section 1(5)(a) and (b) of the AMA and the reasons for the view of this paper shall be clear in the course of the discourse. In other words, in my humble submission, the AMA (just like other ADR Laws- local or international) is a procedural law rather than a substantive law on ADR.
The foundation of every ADR is ‘contract’. In contract, also called ‘agreement’, there are laws and rules guiding same. For instance, in the case of ACCESS BANK PLC vs. NIGERIA SOCIAL INSURANCE TRUST FUND (2022)LCN/4994(SC), the Supreme Court of Nigeria laid some of the principles of law guiding a ‘valid contract’ when the apex court held thus
‘The law of evidence is quite clear that a contract which is required by law to be in writing can only be varied by an agreement in writing. Please see Section 128(1) of the Evidence Act, 2011. However, exceptions exist to the general rule above by virtue of paragraphs (a) to (e) of the subsection. For the Appellant, Access Bank Plc to succeed with the oral evidence claim in the case below it should as a matter of law prove to the Court the existence, particularly, of paragraphs (b) and (d) of Section 128(1) of the Evidence Act in the contract.’
Furthermore, in the case of EORGE & ANOR. vs. ABAK LOCAL GOVERNMENT & ANOR.(2020)LCN/14030(CA), the Court of Appeal of Nigeria stated the rules guiding a ‘valid contract’ in Nigeria thus
‘”A contract was defined in the case of ‘BEST (NIG.) LTD. VS. BLACKWOOD HODGE NIG. LTD. & ANOR. (2011) LPELR-776’ where the apex Court held: “A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. In effect a contract is a bilateral affair which needs the ad idem of the parties, therefore where the parties are not ad idem, the Court will find as a matter of law that an agreement or contract was not duly made between the parties. ‘Odutola vs. Papersack (Nigeria) Limited (2006) 18 NWLR Pt. 1012 pg. 470; Olowofoyeku vs. A G Oyo State (1990) 2 NWLR Pt. 132 pg. 369; Oreint Bank (Nigeria) Plc. vs. Bilante International Limited (1997) 8 NWLR Pt. 515 pg. 37; SocietY General Bank (Nigeria) vs. Safa Steel’ and ‘Chemical Manufacturing Limited (1998) 5 NWLR Pt. 548 pg. 168.’
The most important element in a contract is consideration as held in the case of ‘CHABASAYA VS. ANWASI (2010) LPLER-839(SC)’ as follows: “The Court below stated the elements of a valid contract which are, offer, acceptance, consideration and an intention to enter into legal relations. That for a simple contract to be binding there must be consideration which must move from the promise.”
For a more detailed explanation, see ‘A.G. GOMBE STATE VS. GADZAMA (2014) LPELR-23423(CA)’ wherein the Court said: “At this juncture, I think, it is pertinent to know what is an enforceable contractual relationship in law. In ‘FK Construction Ltd. v. NDIC (2013) 13 NWLR Pt.1371 p.390 @ 406 – 407,’ it has been enunciated that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. It is a promise or a set of promises the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Parties must reach a consensus “ad idem” for a contract to be regarded as binding and enforceable. The two or more minds of the parties must meet at the same point, event or incident. Where they say different things at different times, they are not ad idem and no valid contract is formed. The meeting of the minds of the
contracting parties is the most crucial and overriding factor or determinant in the law of contract. Furthermore, in ‘Best (Nig.) Ltd. vs. BH (Nig.) Ltd. (2011) 5 NWLR Pt.1329 P.95 @ 127,’ the Supreme Court defined a contractual relationship to mean a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires the ‘ad idem’ of the parties. See ‘Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 P.470; Orient Bank (Nig.) Plc. vs. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 P.37 and S.G.B. (Nig.) Ltd. vs. Safa Steel* and *Chemical Manufacturing Ltd. (1998) 5 NWLR Pt.548 P.168.’.
It is elementary to state that there are three basic essentials to the formulation of a contract. These are: (a) Agreement; (b) Contractual intention; and (c) Consideration. The normal test for determining whether the parties have reached an agreement is to determine whether an offer has been made by one party and accepted by the other. In considering whether an enforceable contract has been formed or entered into, there are certain factors to be considered. In Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P.453 @ 476 it was held by the Court that for a contract to be validly formed or entered into there must be: (i) Offer (ii) Acceptance (iii) Consideration (iv) Intention to create legal relationship, and (v) Capacity to enter into contract. All the five (5) elements or ingredients enumerated (supra) must be satisfied before there can be a valid contract in law. A contract cannot be legally entered into if any of these elements or ingredients is not satisfied or fulfilled. See ‘Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P. 453 @ 476; Okubule vs. Oyegbola (1990) 4 NWLR Pt.147 P.723 and PTF vs. Uwamu (2001) 5 NWLR Pt.705 P.112.’
The formation of contract is therefore governed by the making of an offer by the offeror and the acceptance of it by the offeree. The offer and the acceptance constitute an agreement of the two parties as “consensus ad idem”, that is, the Intention of both parties are same. Therefore, for a contract to be valid in law, there must be an offer and an acceptance. An acceptance of an offer may be in writing, by conduct or by other means agreed to or acceptable to the parties. See ‘Johnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR Pt. 2010 P. 235 @ 245.’ In ‘Neka B. B. B. Manufacturing Co. Ltd. vs. ACB Ltd. (2004) NWLR Pt. 858 P. 521 @ 554,’ the Supreme Court held that:- “It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The two contracting parties must agree. In other words, there must be an offer and an acceptance.” In ‘Johnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR Pt.1181 P.235 @ 245,’ this Court, ‘per DONGBAN-MENSEM, JCA,’ had this to say. ”It is trite law that the formation of contract is not governed by rigid but flexible rules, namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeree who accepts the offer unless the offeror, the first party, dispenses with such communication.” In other words, a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and that agreement or contract is binding on both parties and is enforceable by action. It has been held in the case of ‘Yaro vs. Arewa Const. Ltd. (2007) 17 NWLR Pt.1063 P.333 @ 377’ that an agreement or a contract is formed where there exist: (a) an offer; (b) an acceptance; (c) consideration (d) capacity to enter into contract and (e) intention to create legal relationship.’. In my humble submission, the above rules of contract are to the effect that ‘every ADR is founded on ‘contract’.
Furthermore, the cardinal rule of interpretation of an agreement or contract is that it must be interpreted in such a way as to give effect to the intention of the parties. In Bank of Credit and Commerce International SA v. Ali and others (2002) 1 AC 251at 259 Paragraph F-G, Lord Bingham held as follows:
“I consider first the proper construction of this release. In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties’ intentions the court does not of course inquire into the parties’ subjective states of mind but makes an objective judgment based on the materials already identified.” See also the case of Larmie v. D.P.M.S. Ltd (2005)18 NWLR (Pt. 958) 438 at 47.
Prior to the Colonialism of Nigeria, and since time immemorial, human beings have been engaging in transactions and also agreeing on terms which are beneficial to both parties to the contract. This continued till the British colonialism. The English Laws as a Statute of General Application as well as the received Common Laws which have been in force in England on the 1 day of January, 1900, took over and so applies to Nigeria (which includes the ‘laws of contract’). See: Section 32(1) of the Interpretation Act, 2004, section 315(1) to (4) and 318(4) of the 1999 Constitution of the Federal Republic of Nigeria-herein after referred to as the Constitution- read together. The said section 315 of the Constitution is produced in full for clarity where it provides thus ‘315.—(1) Subject to the provisions of this Constitution, an existing law, shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be—
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessity or expedient to bring that law into conformity with the provisions of this Constitution.
(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say—
(a) any other existing law ;
(b) a Law of a House of Assembly ;
(c) an Act of the National Assembly ; or
(d) any provision of this Constitution
(4) In this section, the following expressions have the meanings assigned to them, respectively—
(a) “appropriate authority” means—
(i) the President, in relation to the provisions of any law of the Federation,
(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or
(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State ;
(c) ” modification” includes addition, alteration, omission or repeal.’.
Section 318(4) of the Constitution provides thus
‘The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution’
Furthermore, from the above section 318(4) of the Constitution, this section has adopted the Interpretation Act to be used to interpret the Constitution. See: Abioye & Ors v. Yakubu & Ors (1991) LPELR-43(SC); Fayemi & Anor v. Oni & Ors (2010) LPELR-4145(CA). For instance, too, in my humble submission, the ‘LAW OF AGENCY’ is a Common Law related Law to which the Interpretation Act, 2004- herien after referred to as the Interpretation Act, in section 32(1) (supra) thus
‘32. (1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.’. (Underlining is mine for emphasis).
I wish to humbly add that ‘AGENCY’ just as ‘PARTNERSHIP’, are on ‘contract laws’; While ‘PARTNERSHIP’ is defined by the ‘PARTNERSHIP ACT, 1890 (A STATUTE OF GENERAL APPLICATION) as the relation which subsists between persons carrying on a business in common with a view of making profits’ General Principles of Business and Co-operative Law (Part Two) by M.O. Sofowora (A studies series) Soft Associates, Lagos, at page 87), ‘Agency’ has been described as a special type of contract in which one party called the PRINCIPAL expressly or impliedly agrees that the other party called the AGENT should act for him for the purpose of bringing him into a contractual relation with a third party. The Law of AGENCY is essentially common law, hence, the cases provide a lot of insights into this area of the law. Fridman in his Law of Agency defines it as ‘the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by making of contracts on the disposition of property’. The agency relationship is based on contract, therefore, an agent acts for the principal’s benefit and in accordance with the principal’s direction. Once the principal’s direction is effected, the agent normally drops out and he has neither rights nor liabilities under the contract except the one that created the Agency. The act of the agent with the third party will therefore create reciprocal rights and liabilities or ‘privity of contract’ between the principal and a third party as if the principal has contracted for himself. See: General Principles of Business and Co-operative Law (op.cit.), page 54.
In my humble view, notwithstanding the contractual agreements are English related, the Constitution has guaranteed the right of every Nigerian to enter into contract. For instance, section 39(1) of the Constitution guarantees the right to freedom of expression to every Nigerian citizen which in my humble view, extends the freedom to ‘contract’. Therefore, in my humble submission, the right to freedom of expression (by extension ‘the right to contract’) under the Nigerian Law stems from the provisions of the Constitution in section 39(1) of the Constitution which provides thus ‘Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference’. (Underlining is mine for emphasis). Although, section 45(1) of the constitution provides a derogation from this Constitutional right thus ‘Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons’.
These derogations are limits to ‘contract’ in law, automatically. For instance, in the case of GEORGE & ANOR. vs. ABAK LOCAL GOVERNMENT & ANOR.(2020)LCN/14030(CA) (supra), the Court of Appeal of Nigeria held thus
‘A contract is illegal in law, if:
(a) the consideration or promise involves doing something illegal or contrary to public policy, or
(b) the intention of the parties is to promote something illegal or contrary to public policy.
(c) The terms and conditions are expressly prohibited by or contrary to the provisions of a law or statute. See ‘Onyiuke III vs. Okeke (1976) 3 SC 1 @ 7.’
Part I of the Act, especially in section 1(5)(b) and (c) of the Act, provides thus
‘1 (5):
This Part shall apply to:
(b) inter-State commercial arbitration within the Federal Republic of Nigeria; and
(c) commercial arbitration within the Federal Republic of Nigeria’
This provision in my humble submission, has the implication of making the Act generally applicable to the entire Nigeria. Should this be so?! I humbly answer ‘NO’!; that cannot be the case under our laws in Nigeria, especially, where regard is had to the Constitution. No wonder the confusion about the application of the Act to the whole Nigeria as if it were an exclusive legislation! AMA, in my humble submission, is not entirely exclusive but rather partly exclusive! It is not exclusive where reliance is placed on section 1(5)(a) and (b) of the Act. I shall state my reasons below.
Nigeria is a Federal State or Federation. Therefore, Nigeria operates a Federal System of Government. There are certain principles of a federal system of government: ‘A Federal System of Government’ is an association of free states where power is constitutionally shared by the federal, state and local councils, and with each tier of government exercising its constitutionally assigned powers and functions’. A Federal constitution or federal system of government is one that provides for separate structures of government at the national, state and local councils and with each tier having its own constitutionally assigned powers and duties. The powers of the different tiers of government are usually spelt out in legislative lists in the constitution of the country. The Exclusive Legislative List is for the Federal Government; the Concurrent Legislative List are powers shared between the Federal Government and States Governments to legislate upon provided that where there is a clash of laws, the law of the federal government usually prevails because it is the superior law or because it has covered the ground (or the field). The functions of a local government council on the other hand are also spelt out in the constitution clearly. Thus, there is division of powers in the constitution among the different tiers of government, each deriving its powers from the constitution. A federal country usually has a written and rigid constitution, duplication of government at all levels of government and so forth. Nigeria (as I stated earlier in this paper above) is a Federal State which operates a federal system of Government. See: Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page 26. The Supreme Court of Nigeria in the case of INEC v. MUSA (2003) LPELR-24927(SC) while considering on the issue of ‘What does the legislative power of the National Assembly consist of?’. The Apex court held thus
“The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”.
Furthermore, Tobi, JSC in A-G, Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H; explained on the above provisions that:
“There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items. The Concurrent Legislative List contains 30 items… the Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to the House of Assembly of a State as it relates to Section 4(7) (b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”
Furthermore, on the dichotomy between Exclusive Legislative List and the Concurrent Legislative List, the Court of Appeal of Nigeria clarified this issue in the case of CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41563(CA) while considering the ‘Scope of the powers of the House of Assembly of a State’ thus
‘A careful perusal of the Second Schedule Part 1 which deals with Legislative Powers and in particular contains the items in the Exclusive List, list “Mines and minerals including oil fields, oil mining, geological surveys and natural gas.” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore, any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.’
Also, on what a ‘Residual Legislative Powers’ encapsulates, in the case of: A.G. OGUN STATE V. ABERUAGBA & ORS. (1985) 1 NWLR (PART 3) 395 at 405 C-D per BELLO, JSC, (later CJN of blessed memory) had the following to say thus:
“A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of Government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”.
From the above Constitutional provisions and the case laws, three things are clear: there are three legislative powers in the Federation between the Federal Government and the State Governments (apart from the legislative competence of the Local Government Councils to make Bye-Laws):
Respectfully, a clear study of the said Section 4 and The Exclusive Legislative List of Part 1 and the Concurrent Legislative List of Part II of the Second Schedule to the Constitution, would reveal that there is no item such as ‘Alternative Dispute Resolution’ or ‘Contract’ where the issue of doctrine of ‘covering the field’ or the ‘exclusive powers’ of the National Assembly or the Federal Government in regard to ‘ADR’ and or ‘contract’ is guaranteed or established. Therefore, the law is trite and clear that ‘where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution’. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264. Hence, in my humble submission, one thing is clear; both the Federal Government and the State Government (including the Local Government Council) have the powers to make laws on ADR or contract (and there is nothing such as ‘covering the field’ by the Federal Government in regard to such powers. Also see the provisions of Section 315(1) to (4) of the Constitution (supra). For observation: the item 31 of the Exclusive Legislative List ‘Implementation into treaties relating to matters on this list’, is one reason why I stated that the AMA may be exclusive i.e. in regard to Section 1(5)(a) of the Act which provides thus
‘international commercial arbitration, subject to any agreement in force between Federal Republic of Nigeria and any other country or countries’.
Definitely, in regard to section 1(5)(a) and (b) of the Act, the National Assembly cannot use the provisions of item 31 of the Exclusive Legislative List to deny the States of the Federation their Constitutional powers and or rights. Normally, too, where the Federal Republic of Nigeria signs any treaty, all States of the Federation and the Local Government Councils as well as Nigerians are bound as a Federal Law. This does not in any way, stop a State Government from making such laws for instance, international commercial arbitration to which the Federal Government has signed an agreement as her law for the purpose of ADR; for instance, for the States to follow ‘the United Nation Commission on International Trade Law (the UNCITRAL) Arbitration Rules, the Regional Centre for International Commercial Arbitration Rules, etc. in fact, the State might copy and paste the said ADR Rules and adopt same in her law without necessarily mentioning that it is in adoption of the said international ADR Rules. Like I stated earlier in this paper, the ADR is a procedural law rather than a substantive law. The most important matter therefore, is what makes the disputing parties to do ‘justice’ and continue to live ‘peacefully’ with themselves.
Furthermore, and nevertheless, I must state that this issue relates to Constitutional law. It is therefore my humbly submission that the Constitutional powers of the National Assembly are not restricted to those items 1- 66 of the of the Part I of the Second Schedule to the Constitution rather, the true position of the constitutional law (to the best of my knowledge) is that the powers of the National Assembly have been given ‘extension’ beyond those items listed on items 1- 66 by items 67 and 68 of the said of the Part I of the Second Schedule to the Constitution, notwithstanding that the entire items 1- 68 are regarded as the Exclusive Legislative List. Though, I must state immediately here that the general powers of the National Assembly are not only restricted to those powers conferred by the Exclusive Legislative List, rather, they are as broadly provided by section 4 of the Constitution.
Now, like I stated earlier, this issue at hand is an issue bothering on Constitutional law. Therefore, this issue also bothers on the interpretation of the provisions of the Constitution to discover the real intent of the framers and or the makers of the Constitution as to whether they desire that on the issue of exclusivity of the items 1- 66 of the Part I of the Second Schedule to the Constitution, do they intend that the Exclusive Legislative List should start and end on items 1- 66 only or same should extend beyond same but to items 67 and 68? What then was the mind and or intent of the law makers in including items 67 and 68 to those items of the Part I of the Second Schedule to the Constitution?! A close study of these items 67 and 68 would reveal their importance. For emphasis, item 67 provides thus ‘67.
Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.’. While the item 68 provides thus ‘68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list’
Nigerian Judicial precedents are clear on the rules guiding interpretation of the provisions of the Constitution thus in ‘1. HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: *Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H; Adisa v Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR–40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D–G also per KEKERE-EKUN, JSC, who had this to say– “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 *NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3. CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588:
“It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264. The proper approach to the interpretation of clear words of a statute is to follow them in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning. This is generally also true of construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal broad interpretation – see: Fawehinmi v. IG of Police & Ors. 7 NWLR (Pt. 767) 606 at 678.”.
Also, in ‘1. DR. O.A. Saraki v FRN (2016) 4 SCM 94 AT 132 G- H, Per Onnoghen, JSC now Ag. CJN.’ 2. Brittania- U Nigerian Ltd. V SPDC Ltd. & ORS (2016) 3 SCM 44 at 81 Per Ngwuta, JSC, who said ‘In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meaning.’
I must say that having regard to the elaborately considered decision of the Nigerian Courts above, I do not need to add any more as those (Supreme Court of Nigeria) authorities relied upon by the Court have also clearly expatiated the purport and or purpose of the items 67 and 68 of the Exclusive Legislative List! Hence, my heavy reliance is on those Supreme Court of Nigeria authorities. Also see: INEC v. MUSA (supra), Abia State v. A-G. Federation (supra), CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (supra) and A.G. OGUN STATE V. ABERUAGBA & ORS. (supra).
Therefore, having regard to the above, it is my humble submission that each of the items on the Exclusive Legislative List and the Concurrent Legislative List as well as the Residual Legislative List, with due respect to any contrary view to my submission, that having regard to the above legal authorities referenced and relied upon, the exclusive powers of the National Assembly do not start and end on the powers listed under items 1- 66 of the Part I of the Second Schedule to the Constitution rather, having regards to items 67 and 68 of the said Part I of the Second Schedule to the Constitution and section 4 of the Constitution, such exclusive powers extend to ‘any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of the Constitution and any matter incidental or supplementary to any matter mentioned elsewhere in the Exclusive Legislative list’. Therefore, in searching for the exclusive powers of the National Assembly, the entire provisions of the Constitution must be construed (i.e. other provisions of the Constitution elsewhere than what is provided in the Exclusive Legislative List must be considered as a whole).
For the purpose of emphasis, I wish to state that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the supreme law of Nigeria through which the various organs and levels of Government derive the source of their powers and any variation from the Constitution is very unlawful, null and void. On this position, Ngwuta JSC has this to say ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity vel non of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. See: Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC.
Furthermore, the Supreme Court of Nigeria held in the case of I.B.W.A. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633, thus ‘In applying the Mischief Rule, the construction of a statutory provision will not be strained to include cases plainly omitted from the natural meaning of the words of the statute.’.
The Supreme Court in the case of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545 at 585 paras. F – G held thus:
“I must remark here that in the interpretation of any statute or instrument, the object is to ascertain the intention of the legislature that had drawn it. The cardinal principle is that parties are presumed to intend what they have in fact said or written down.”
This shows that the Courts in the course of interpreting the provisions of a statute or any document are basically trying to give effect the intention of the draftsmen of the statutes or documents.
Furthermore, applying the principle of interpretation to the Exclusive Legislative List and the Concurrent Legislative List, where the maxim expressio unius personae vel re est exclusio alterius and this simply means ‘the express mention of one thing is the exclusion of others’. See the case of Ehuwa v O.S.I.E.C & 3 Ors (2006) 18 NWLR (Pt. 1012) 544 at 568 – 569, I am of the firm submission, (as I stated earlier in this paper) that there is no mention of ‘ADR’ or ‘contract’ as Exclusive powers of the National Assembly or the Federal Government of Nigeria in the Constitution. Hence, what it means to my mind is that, the Constitution does not intend that the National Assembly shall have exclusive powers in regard to ADR or contract. Hence, they are naturally within the Residual Legislative List. Therefore, the Federal Government can legislate for the Federal Capital Territory, Abuja, in that regard as a State of the Federation and any of the States of the Federation can make such law on ADR: such as: Arbitration; Mediation; etc. and contract for the State, by virtue of sections: 299; and 301 of the Constitution. Also, like I stated earlier in this paper, there is no such application of ‘covering the field’ by the Federal Government.
Nevertheless, I took cognizance of the items: 67 and 68 of the Part I of the Second Schedule to the Constitution. To that extent, it is my humble submission that the National Assembly may utilize the powers to legislate on ADR or contract as they affect or relate to those items on the Exclusive Legislative List and those on the Concurrent Legislative List, where the Federal Government is concerned or is a party to the contract but not what affects ‘individuals’ as contracting parties or between ‘States’ i.e. inter- States.
Therefore, in my humble submission, Part I of the Act, especially in section 1(5)(b) and (c) of the Act which provides thus
1 (5):
This Part shall apply to:
(b) inter-State commercial arbitration within the Federal Republic of Nigeria; and
(c) commercial arbitration within the Federal Republic of Nigeria’, is giving to itself what the Constitution does not give to it. Under what powers did the National Assembly act in regulating ADR and contract under the Constitution in inter-State commercial arbitration within the Federal Republic of Nigeria; and commercial arbitration within the Federal Republic of Nigeria?! I do not see any of such power granted to the National Assembly by the Constitution! Therefore, it is clear that the National Assembly had acted ultra vires of its powers and in contravention of the provisions of the Constitution in making the provisions of section 1(5)(a) and (b) (supra). Therefore, too, to the extent of the inconsistency, the said provision of section 1(5)(a) and (b) and section 67(1)(b) and (c) of the AMA are unconstitutional, null and void and of no effect.
Arising from this paper, this paper has pointed out that the legislative powers of the National Assembly to make laws does not extend to making the provisions of section 1(5) (a) and (b) and section 67(1)(b) and (c) of AMA under the Constitution in inter- State commercial arbitration within the Federal Republic of Nigeria; and commercial arbitration within the Federal Republic of Nigeria and on domestic mediation respectively. This paper has also espoused that the Federal Government has the powers to make these provisions only where the Federal Government is a party to the contract or ADR or where it makes the law on ADR and contract for the Federal Capital Territory, Abuja but cannot constitutionally speaking, make such law or provisions for inter-State commercial arbitration within the Federal Republic of Nigeria; and commercial arbitration within the Federal Republic of Nigeria between States or Individuals and or on domestic mediation respectively. The Constitution, in my humble submission, does not intend to confer such powers on the National Assembly as having been utilized by the National Assembly. Hence, by section 1 of the Constitution, the provisions of section 1(5) (a) and (b) of AMA is unconstitutional, null and void and of no effect.
Recommendations:
1. State governments should go ahead to make their laws on ADR or and contract without recourse to the section 1(5) (a) and (b) and section 67(1)(b) and (c) respectively of AMA;
2. State government may decide to give the section 1(5) (a) and (b) and section 67(1)(b) and (c) respectively of AMA final burial by instituting an action in the court of law to strike same out;
3. Citizen affected by the provisions of section 1(5) (a) and (b) and section 67(1)(b) and (c) respectively of AMA can institute the action in the court of law to strike same out.
Email: hameed_ajibola@yahoo.com 08168292549 (WhatsApp number and for calls).
Source: Thenigerialawyer
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