Interrogating the Legislative Power of a State House of Assembly to Enact Arbitration Law in Nigeria

 

By

N.O.A. Ijaiya Ph.D., Faculty of Law, University of Ilorin, E.A. Adesina, Department of General Studies, Lagos State Polytechnic, Ikorodu Lagos

Olufemi Abifarin Ph.D., Faculty of Law, Edo University Iyamho, Edo state Nigeria

 

Abstract

Nigeria as a federation has constitutionally divided legislative powers between the federation and the federating units called states. However, in spite of the clear division of legislative powers in the constitution, the states do encroach on the legislative power of the federation while the federation too sometimes encroaches on the legislative power of the states. This paper analyses the constitutional power of both the states and the federation with a view to enlightening them to adhere strictly to the constitutional distribution of legislative jurisdiction. The paper started with the constitutional establishment of the National and state legislature, it stated the power to each tier of government in law making its constitutional limitations in law making, using arbitration law as an example of state encroachment on federal legislative power. The paper concluded by distinguishing between industrial arbitration and customary arbitration and that while the National Assembly can legislate on Industrial arbitration only State can legislate on customary arbitration and other alternative dispute resolution methods like mediation, negotiation, renegotiation etc. since they are not specifically mentioned in the Exclusive and Concurrent Legislative Lists in the Constitution.

 

Introduction

Since 1999, when democratic governance was restored in Nigeria, various States Houses of Assembly have been making laws to regulate Commerce, industries, education, health, housing, ICT etc. but some of these laws are violating the provisions of the Constitution in the sense that it is either the House of Assembly did not understand the dynamics of a federation or they are simply lazy to the extent that the power to make such law or not.[1]

This phenomenon is not peculiar or limited to the Houses of Assembly of the States but the National Assembly also fall into the same error, thinking that it has absolute and unregulated power to make law for the federation.[2] This error of judgement has led to the National Assembly making laws that are struck down by the Court for lack of Jurisdiction while making the law.[3]

In fact, we have pointed out elsewhere that the State House of Assembly in Nigeria have no power to make law on pension and gratuity, health Insurance, labour and trade unions, cooperative societies etc.[4] A critical perusal of the Constitution, especially the exclusive legislative list also shows that the states lack capacity to make law on industrial disputes and industrial arbitration. This paper is expected to interrogate this issue with a view to correcting the erroneous belief of the States and advise such States that have enacted such law to annul the law by repealing it or by restricting itself to its Stated Jurisdiction in the Constitution on law making.

Our interrogation seeks to answer the following question: what is arbitration? Is there any distinction between industrial arbitration and customary arbitration? What is the constitutional jurisdiction of the National Assembly and States House of Assembly with respect to arbitration? What are the legal implications of Exclusive, Concurrent and residual legislative lists in a federation like Nigeria and what are the legal implication of non-compliance with the list by any tier of government in exercising its law-making power? What is the position of other alternative dispute resolution methods that are not mentioned both in the Exclusive and Concurrent Legislative Lists in the Constitution?

 

Arbitration in Nigeria

Prior to the introduction of English law to Nigeria by the British Colonialist, customary arbitration was in operation in Nigeria. This was administered in the acephalous or chiefly communities by the rulers while in acephalous or republican communities by the comma of elders or nominated elders as the case may be. This continued until the introduction of Arbitration Ordinance of 1914 which was based on the English Arbitration Act of 1889. It was initially made applicable to Lagos and later extended to other parts of the country in 1958.[5]

The 1914 Ordinance obviously became unsuitable to deal with many of the new situations that were appearing, and this led to a call for a more modern and suitable legislation on arbitration. Happily, this came in 1988 through Arbitration and Conciliation Act, 1988 which was based largely on the UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Model Rules. Apart from the 1914 Act that has been made applicable to Lagos, Lagos State now” has the Lagos Court of Arbitration and it is empowered by statute to function as an international arbitral institution. This is in addition to the existing Lagos Regional Centre for International Commercial Arbitration pioneered by the Asian African Legal Consultative Committee (AALCC) Regional Centres for Arbitration which has other centres in Kuala Lumpur and Cairo. These centres are intended to provide facilities for settling international commercial disputes undertaken in Asia and Africa. The centre which was inaugurated in 1989 started operation in1999.[6] The Lagos State government has also gone further to create the Lagos Multi Door Court House[7] and citizens mediation and conciliation centre.[8]

Although arbitration and litigation share some common features because of their adversarial and rancorous tendencies, arbitration has become accepted as a viable alternative to litigation. Even though it seems that arbitration under the general law is yet to take its proper place in the country’s growing economy as a dispute settlement.

 

Meaning and essence of Arbitration

The Arbitration and Conciliation Act[9] that formally introduced arbitration into the country did not give useful definition of arbitration. The Act in section 57 (1) simply defines arbitration in the following way: “Commercial arbitration Whether or not administered by a permanent arbitral institution”. This definition is unhelpful and when he set out.[10] The reference to commercial arbitration only means that not only does the Act apply to commercial disputes only, it also gives the impression that only commercial disputes can be subject of arbitration under the Act.[11] This definition rules out customary arbitration and other arbitration matters falling outside commercial transaction. But in practice, since the enactment of the Act, other disputes other than commercial disputes have been resolved by arbitration in Nigeria.[12] We shall therefore have recourse to other works for working definition of arbitration.

Halsbury Laws of England, defines arbitration as the reference of a dispute or difference between not less than two parties for determination after hearing both sides in a judicial manner, by a person other than court of competent jurisdiction.[13]

While Stroud’s Judicial Dictionary relying on Collins v. Collins[14] defines arbitration as a reference to the decision of one or more other persons either with or without an umpire of a particular matter in difference between the parties.[15]

Berstein, view arbitration as a situation where two or more persons agree that a dispute between them shall be decided in legally binding way by one or more impartial persons in a judicial manner that is, upon evidence before him or them, the agreement is called an arbitration agreement, when, after a dispute has arisen, it is put before such person or persons for decision, the procedure is called an arbitration and the decision when made is called an award.[16]

As pointed out above, arbitration is a mechanism for resolution of disputes between two or more persons under which they agree to be bound by the decision to be given by neutral third party (the arbitrator) according to law or if so agreed, other consideration after a fair hearing, such a decision being enforceable in law.

It has been argued that an exercise is not arbitration, strictly so called, if it does not answer to this definition, notwithstanding that, it is described as arbitration. Thus, an arbitration board appointed not to settle a dispute but to determine the value of certain companies is not arbitration within this definition.[17]

A person or persons to whom a reference to arbitration is made is called an arbitrator or arbitrators. His or her decision is called an award.[18] If it is provided that in the event of a disagreement between the arbitrators, the dispute is to be resolved by a third person normally referred to as an umpire, the decision of an umpire is also called an award.[19] However, the current Nigerian arbitration statute makes no provision for an umpire, but for a third party who unlike an umpire, cannot alone hand down an award.

 

Is Arbitration part of ADR process?

Before going further in this research work, it is pertinent at this juncture to discuss the raging controversy with regard to the status of arbitration. In recent times, it has been doubted whether arbitration can be described as an ADR method.[20]

The general stand on the issue is fluid, in that opinions are divided. Arbitration has some of the features of ADR properly so called and some of the features of adjudication through court process. Some of these are autonomy of the parties in choosing the arbitral tribunal, informality, confidentiality and absence of antagonism which leaves the parties in arbitration with the opportunity to resume business relations with little” or no disruption after the award has been rendered.[21]

On the other hand, are weighty arguments against classify in arbitration as an ADR process. Arbitration is said to be closer to litigation in approach. In the first place, an agreement to enter into arbitration will be enforced by the courts whereas an agreement to enter into an ADR process will not be. Secondly, in arbitration, the outcome is determined in accordance with an objective standard, i.e. the applicable law. In mediation, for example, any outcome is determined by the will of the parties. This is why it is often said that mediation is an interest based procedure.[22] Thirdly, in arbitration, a party’s task is to convince the arbitral tribunal of its case on the other hand, in mediation, for example, since the outcome must be accepted by both parties and is not decided by the mediator, a party’s task is to convince or compromise with the other side.[23]

Fourthly, mediation and conciliation, in many countries, are not subject to any statutory regulation, the position was the same in Nigeria until 1988 when the Arbitration and Conciliation Act was promulgated.[24]

In the light of what we have explained above, it is hereby asserted that arbitration is in a curious position when discussing ADR processes. It is basically a form of adjudication, though like ADR properly so called, is also an alternative, to litigation, the difference between ADR process like mediation and conciliation on the hand, and arbitration on the other hand stems from the fact that, in mediation or conciliation, the parties retain responsibility for controlling the process and making a binding award. In the light of the above, it is submitted that arbitration should not be left out of ADR process because arbitration is not an exclusive preserve of lawyers and the courts but other professionals like accountants, architects, engineers, surveyors or the subject matter. It is also evident by empirical analysis that arbitration in most cases are faster, preserves relationship and is cheaper than litigation.[25]

 

House of Assembly of a State

There shall be a House of Assembly for each of the states of the Federation. Unlike the National Assembly, this is a unicameral legislature i.e. (a single chamber legislature). The House of Assembly of a state shall consist of three or four times the number of seats which the state has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population, provided that a House of Assembly shall consist of not less than twenty four and not more than forty members.[26]

There shall be a Speaker and Deputy Speaker of a House of Assembly who shall be elected by the members of the House from among themselves[27]. There are other officers of the House such as House Leader and his Deputy, chief whip and his deputy, minority leader, minority whip e.tc. These positions are not creations of the constitution but are created by the House under its implied power under section 101 of the constitution. It must be noted that the unicameral nature of House of Assembly of States has made it economical to run as against the bicameral National Assembly.

 

Legislative Power of National Assembly

The power of the National Assembly to make law in Nigeria is spelt out in Section 4(1) and (2) and Section 4(4), while section 4(1) & 2 confers exclusive powers on the National Assembly to make law on items or matters contained in the exclusive legislative list. Section 4(4) further confer power on the National Assembly to make law concurrently with the State Houses of Assembly on matters in the concurrent legislative list as spelt out in part II of the second schedule to the constitution. By the tenor of sections 4(1) & 2 and 4(4) the National Assembly has wider legislative powers than the State Houses of Assembly. But that does not mean that the National Assembly has absolute or arbitral legislative power. The legislative power of the National Assembly is still circumscribed by the provisions of the constitution and the National Assembly cannot confer more legislative power on itself than that contained in the constitution.[28]

The National Assembly cannot extend or expand its legislative power to include legislating for a State or Local Government. It does not have broad, vague or unlimited powers but the National Assembly may exercise such powers that was neither expressly granted nor prohibited just as it was held by the Supreme Court,[29] of the congress of America. “This congress is not confirmed to the powers named in the constitution. Congress may also exercise powers, which may be reasonably implied from the enumerated powers”.[30]

It is also arguable that the concept of enumerated power has limitation to the legislative power of the National Assembly could should be excused on issues of foreign relation on ground of inherent powers. The power to wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned in the constitution, would have vested in federal government via the National Assembly as necessary concomitants of National Assembly are inherent and therefore not limited.[31]

 

The scope of the Legislative power of the State Houses of Assembly

The legislative power of State Houses of Assembly is enumerated in the constitution. Section 4(6) of the constitution provides that the legislative power of the State of the Federation should be vested in the House of Assembly of a State and the House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:

a)     Any matter not- included in the Exclusive legislative list set out in part I of the second schedule to this constitution.

b)     Any matter included in the Concurrent legislative list set out in the first column of part II of the second schedule to this constitution.

c)     Any other matters with respect to which it is empowered to make laws- in accordance with the provisions of this constitution (referred to as-residual matters).

 

 

Mode of Exercising Legislative Power of a State House of Assembly

The House of Assembly shall exercise its law-making power and except as otherwise provided by this section assented to by the Governor.[32]

A bill shall not become law unless it has been duly passed and assented to in accordance with the provision of this section.[33]

Where a bill has been passed by the House of Assembly it shall be presented for the Governor for assent and the Governor shall give his assent within 30 days of its presentation to them. If he is withholding his assent, he must also signify within 30 days.[34]

Where the Governor withholds his assent and the House of Assembly by 2/3 majorities again passes the bill. The bill shall become law and the assent of the Governor shall not be required.[35]

A House of Assembly shall have power to regulate its own procedure including the procedure for summoning and recess of the House. It is under this power that a House of Assembly enacts standing orders and rules of procedure in the House.[36]

The House of Assembly has power to set any committee for any special or general purpose of the house.[37]

Sections 121-123 confer power on the House of Assembly to establish consolidated revenue fund for a, state, to authorize expenditure from consolidated revenue fund and authorize expenditure in default of appropriations.[38]

The House of Assembly of a State shall approve the appointment of Auditor General of the State-see section 126.[39]

The House of Assembly shall have power to conduct investigations or inquiry on any matter or thing with respect to which it has power to make laws and the conduct of affairs of any person, authority, ministry or government department charged or intended to be charged with the duty of or responsibility for exacting or administering laws enacted by that House of Assembly and disbursing or administering moneys appropriated or to be appropriated by such House Such power is to be exercised in order to make laws within its legislative competence, remedy defects in existing laws, expose corruption, inefficiency, or waste in the execution or administration of laws within the legislative competence and in the disbursement or administration of funds appropriated by it.[40]

The House of Assembly or any committee appointed by it shall have power to procure all such evidence written or oral direct or circumstantial as it may think necessary or desirable and examine all persons as witness whose evidence may be material or relevant to the subject matter. Such evidence may be required to be given on oath, it may summon any person in Nigeria to give evidence at any place, or produce any document, and it may issue warrant to compel attendance of any person who fails to answer a summons.[41]

The House of Assembly of a State also has power to make laws on residual matters as specified in section 4(7)(c) of the constitution. Residual matters and all other matters outside those set out in the concurrent legislative list and are under the legislative competence of the House of Assembly.[42]

 

Limitations of the Legislative Power of the House of Assembly of State

Apart from the specific jurisdiction of the House of Assembly of a state conferred on it by the constitution in the concurrent legislative list, the constitution also constricts the legislative power of the House of Assembly in the following ways:

Section 4(5) provides that if any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void. This is a restriction on the legislative power of the House of Assembly of a State. This restriction is to the extent that even while exercising its legislative power on the items caution so that it should not act ultra vires the National Assembly and the constitution.

The House of Assembly of a state also must conform with the manners, form and procedure prescribed by law. This shows that the House of Assembly of a state does not have wide power or absolute power to legislate even on items on concurrent legislative list and residual matters.

The power of the House of Assembly to create Local Government shall also be exercised jointly with the Local Government Councils in respect of the area. The same also goes for boundary adjustment of local government. See sections 8 x 9 of the constitution.

Another important fact is that the legislative power of House of Assembly of a state is subject to judicial control or judicial review. That means that any law enacted by the House of Assembly of a State is subject to the judicial control or review by the high court’s when the constitutionality of the law is in question.

While the constitution also restricts the House of Assembly of a State to making prospective laws only. The House of Assembly of a State cannot make retrospective or retroactive criminal law. This has been extended by judicial authorities to civil laws. The effect of these cases is that both the National Assembly and House of Assembly of a State have no power to make both retrospective criminal and civil law.

The doctrine of covering the field is another limitation of the legislative power of State of House of Assembly. Under this doctrine whatever the National Assembly has legislated upon on the concurrent legislature list cannot be legislated upon again by the House of Assembly of State.

Section 315 (4) a (1) and (11)- empowers the president and the Governor being the appropriate authority to as provide in section 315 (2) make such modifications in the text of any existing law to bring it into conformity with the provisions of this constitution. Existing law was defined in section 315 (4) (b) to mean any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which being passed or made before that date comes into force after such date. The implication of section 315 is that the President and Governors are now conferred with legislative powers. The president in exercising his power under this section made an order via statutory instrument No. 9, of 2002 modifying the Principal Allocation of Revenue Act. When this was challenged by the states in AG. Abia State v. AG Federation, the Supreme Court upheld the power of the President to modify the Act.

 

Legislative power of House of Assembly on Arbitration in Nigeria

Arbitration whether commercial or industrial is on the Exclusive Legislative List, therefore it is only the National Assembly that can legislate on industrial or commercial arbitration. The relevant part of the constitution listed labour, including trade unions, industrial relations, conditions, safety and welfare of labour, industrial disputes, prescribing a national minimum wage for the federation or any part thereof: and industrial arbitrations.[43]

Looking at the above quoted law, industrial disputes and industrial arbitration are placed on Exclusive legislative list reserved for the National Assembly, therefore any State House of Assembly that legislates on industrial or Commercial arbitration would have acted ultra vires the constitution. Therefore, Arbitration law of Lagos and Kwara States are null and void by virtue of the Constitution. However, the states can legislate on customary arbitration and other ADR methods that are not assigned to the National Assembly.

In a federation, legislative powers are usually divided into three namely: Exclusive Legislative List, Concurrent Legislative List and Residual Legislative List. We are now going to discuss the Constitutional basis of Legislative lists.[44]

 

Constitutional Basis of Legislative List in a Federation

According to Akande, this important subject of distribution of legislative powers between the Federal and State Governments is embodied in the second Schedule.[45] There are 68 numbered items and two items of matters both incidental and supplementary to those mentioned on the Exclusive List and 12 main items on the Concurrent List subdivided into 30 Subsidiaries.[46] The National Assembly may also make laws for the peace, order and good government of the Federation or any part thereof in respect to any matter that is included in the two legislative lists. In addition to this, it can also legislate for the Federal Capital Territory on any matter, irrespective of its inclusion in the Legislative List.[47] In this regard, therefore, the National Assembly has the same residual powers of Legislation with respect to the Federation Capital Territory as are granted to each State Legislature with respect to the State.[48]

In respect of matters on the Exclusive Legislative List, only the National Assembly may legislate. A State Legislature may legislate on matters not on Exclusive List. This means that the States can legislate on matters on the Concurrent Legislative List as well as on all other matters which are not on either of those two lists except where the matters are “incidental and supplementary” to the Exclusive Legislative List. This paper argues that such can be likened to implied and inherent powers of American Congress.[49]

In a way, the Concurrent Legislative List contains an element of exclusivity within itself for the state, as well as it being empowered to make laws with respect to antiquities and monuments. But the State House of Assembly may make laws for the State or any part thereof with respect to antiquities and monuments not so designated”. As such, once an antiquity in a State with the consent of the State has been designated a national monument, it falls within the exclusive control of the National Assembly even though it lies physically in the State. Without such designation, the National Assembly has no power to make laws on it. In any case where the concurrent Legislative item is so spread as to be covered by both the federal legislature and the state legislature and both make laws, the law made valid by the National Assembly shall prevail and the State law, to the extent of inconsistency, shall be void.[50]

The question of an inconsistency between Federal and State Law came up in the case of Girembe v. Bornu L.A.,[51]where the appellant had been convicted in the court of the Shehu of Bornu on a charge of culpable homicide punishable by death. The High Court of Northern Nigeria had confirmed the sentence, but the conviction was set aside by the Supreme Court because, wh1le the record of the trial disclosed evidence of severe assault by the accused person upon the deceased shortly before his death, there has been no medical evidence before the court that the deceased died because of the injuries inflicted upon him.[52]

The court considered it appropriate to order retrial[53] before the Northern Region High Court, and did so, having power to make such an order under section 20 of the Federal Supreme Court Act, 1960. The result would be the trial of the accused before the High Court in a situation not specified in section 185 of the Northern Region Criminal Procedure Code, which purported to define exhaustively the circumstances .in which such trials could take place. It followed that the code, a Regional Law is inconsistent with a Federal Act. By virtue of the Constitution,[54] the Act prevailed. Various criteria for determining inconsistency between a Federal and State Legislation have been employed in other Federal Constitutions. In the Australian case of Australian Boot Trade Employer’s Federation v. Whybrow,[55] the view was expressed that a Commonwealth Law and a State Law are not inconsistent if it was possible to obey the State Law without disobeying Commonwealth Law. It must be mentioned that there is no Concurrent List in the Australian Constitution, just as there is none in the United States and Canada; the Constitution enumerates only the Exclusive powers of the Federal Legislature. In spite of that, it is provided that where a State Law is inconsistent with a Commonwealth Law, the latter prevails. As more clearly enunciated by Dixon J. in Victoria v. Commonwealth[56] “where a State Law is inconsistent with a Commonwealth Law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid”.[57] Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete enactment of the law governing a matter or set of rights and duties, then for a State Law to regulate or apply to the same matter or relations regarded as a detraction from the full operation of the Commonwealth law and so is in Consistent. Thus, if a legislature clearly shows its intention of “covering the field” (a doctrine well known in Australia and United State of America) that is a conclusive test of inconsistency.[58]

In contrast to the Nigerian method of detraction or the Australian and American methods, the Indian Constitution[59] provides a unique method. It has three distinct lists, one exclusive to the Union Parliament, one exclusive to the State and a third which is concurrent to both. Besides, only the Union Parliament can legislate on a matter not on any of the Lists. This is another method of indicating the superiority of the Union Parliament over State and is more indicative of a very strong-centred Federation. This later effect has been achieved in Nigeria by the placing of most of the important matters of government within the exclusive legislative competence of the Federation Legislature.[60] These two broad legislative powers of the federation has led to discontent and the current agitations for restructuring and devolution of powers.

 

Distribution of Legislative Power in a Federation

Exclusive Legislative List

These are the powers reserved exclusively for the central government: This means that only the central government can legislate on the two lists and when a State or region legislate on the exclusive list it can be declared null and void and unconstitutional.[61]

 

 

 

Concurrent List

These are where powers are shared jointly by both the central and regional/state government as stipulated in the constitution even though both governments can make laws on matters that falls under Concurrent List, the central is Supreme. This means where there is a Conflict of law made by both governments, that the law made by the central government is supreme and will super cede that of the regional /State government.[62]

 

Residual List

These are the leftover power not included in either the exclusive or the concurrent list. The powers in the residual List are left for the regions/states. In some constitution, residual powers are exercised by both governments. Such matter in the residual list includes chieftaincy matters etc.[63]In some jurisdictions like the USA, there is also the implied power of the federal Legislature.[64]

 

Legislative power of House of Assembly on Customary arbitration and other ADR methods

It would appear that the House of Assembly of State has legislative power in customary arbitration. This position is informed by the fact that the constitution made reference to industrial disputes and industrial arbitration on the exclusive legislative list as being part of the legislative jurisdiction of the National Assembly.[65] The constitution is silent on customary arbitration. Customary arbitration has been said to be part of the existing law saved by section 315 of the 1999 constitution just as it was saved by section 275 of the 1979 constitution.[66]

Secondly, the Arbitration and Conciliation Act defines arbitration to mean Commercial arbitration thus excluding other brands of arbitration like customary, domestic or family arbitration. By the fact of the restricted definition given to the type of arbitration the Act covers and the restricted definition also given in the constitution, it follows that customary arbitration which is clearly excluded in the definition is outside the jurisdiction of the National Assembly. Customary arbitration, therefore, will fall within residual list which is withinthe jurisdiction of the State House of Assembly. Again, the Constitution further placed commercial Industrial monopolies, combines and trusts in the Exclusive Legislative List.[67] The meaning of this is that commercial and industrial go together in the constitution.

As far as the Constitution is concerned, a State House of Assembly does not share concurrent jurisdiction with the National Assembly on industrial or commercial arbitration. The issue of the doctrine of covering the field does not arise between the National Assembly and the State House of Assembly has the sole power to legislate on industrial and commercial arbitration since it is on the Exclusive Legislative list. A list belonging exclusively to the National Assembly to the exclusion of State House of Assembly. The doctrine of covering the field will arise if industrial arbitration is listed on the concurrent legislative list and the National Assembly now legislate on it in a manner that suggests that National Assembly intends to cover the field on industrial arbitration.[68] It is impossible to agree with the position of Daibu on this issue.[69] This position did not take cognisance of the constitution on the Exclusive Legislative List which is clear and unambiguous. It is pertinent to state clearly here that other alternative dispute resolution methods other than arbitration and conciliation will also be under the residual power of the State since they are not specifically mentioned on the list, i.e., Exclusive and Concurrent Legislative List. Therefore, only the state can legislate on them.

 

Principles of Constitutional Construction

As a general rule, every person whose functions entail the construction of documents, be it statutory, contractual and/or constitutional is an intention seeker. According to Lord Denning:

“In almost every case on which you have to advise you will have to interpret a statute. There are stacks and stacks of them. Beyond doubt the task of the lawyer-and the judge is to find out the intention of parliament.”[70]

The Nigerian Courts, particularly the Supreme Court of Nigeria have given
weight to this fundamental principle of statutory interpretation in a number of cases too numerous to mention here. According to Mukhtar JSC:

“The provision of a statute should be given its correct and grammatical interpretation. In other words, the provision of a statute should be viewed in its simple form and interpreted within its ambit and no extraneous matter should be introduced into it to give it a meaning different from what the legislator intends it to be otherwise the law will be wrongly construed and its purpose will fall outside the intendment of the legislator.”[71]

Nonetheless, it would seem that despite its subscription to this basic approach to the interpretation of statutes, the Supreme Court of Nigeria has consistently maintained that the Nigerian constitution being a fundamental and peculiar document should be construed in accordance with particular principles laid down for it. Accordingly, in the interpretation and construction of our constitution, we must bear in mind the following principles:

1.     Effect should be given to every word.

2.     A construction nullifying a specific clause well not be given to the constitution unless absolutely required by the context.

3.     A constitutional power cannot be used by way of condition to attain unconstitutional result.

4.     The language of the constitution where clear and unambiguous must be given its plain evident meaning.

5.     The constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirely, a particular provision cannot be dissevered from the rest of the constitution.

6.     While the language of the constitution does not change, the changing circumstances of a

progressive society for which it was designed yield new and fuller import to its meaning.

7.     A constitutional provision should not be construed so as todefeatist evident purpose.

8.     Under a constitution conferringspecific powers, a particular power must be granted, or it cannot be exercised.

9.     Delegation by the National Assembly of its essential legislative function is precluded by the constitution.

10.  Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly, distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.

11.  The principles upon which the constitution was established rather than the direct operation or literal meaning of the words used measure the purpose and scope of its provision and,

12.  Words of the constitution are not to be read with stultifying narrowness.[72]

 

Rule 8

Under a constitution which confers specific powers, a power which is not specifically granted cannot be exercised. This generally accords with the “ultra vires rule” and particularly with the “expression uniusest exclusion alterius” the latter being to the effect that “express mention of one thing excludes the others”. The Court of Appeal recently followed this principle in Obi v. I.N.E.C[73]where Fabiyi JCA said:

Where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This principle of law is encapsulated in the maxim expression uniusest exclusion alterius which means that the express mention of one thing excludes the others.[74]

Rule 9

The constitution precludes the National Assembly from delegating its essential legislative functions. It must be pointed out that this rule does not abolish the doctrine of “Delegated Legislation” which is a universal legal concept. Nonetheless, there are sensitive and essential powers and functions the performance of which cannot be delegatedso as to guard against the consequences of their being abused. The various constitutions of Nigeria create or recognise three (3) areas of legislative influence: (1) The exclusive legislative list (2) The concurrent legislative list and (3) The residual legislative list.[75]

Matters that fall within the first list are within the exclusive legislative competence of the National Assembly, both the National Assembly and state Assemblies are competent to make laws in respect of matters falling within the second list while Local Government Legislative Houses could make laws on left-over (residual) areas. The use of the word “exclusive” in the first list makes it unlawful for the National Assembly to delegate its legislative functions under itto either the state or Local Government Legislative Houses. Accordingly, the Nigerian constitution provides:

The power of the National Assembly to make laws for the peace, order and good government of the federation with respect to any matter included in the Exclusive legislative list shall, save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of State.[76]

Nonetheless, the National Assembly has the discretion under the doctrine of “Delegated Legislation to delegate its legislative functions in matters falling within the “Concurrent Legislative list” to the State Houses of Assembly for reasons as may be clearly stated.

 

Conclusion

The constitution is a general statement of how Nigerians wish to be governed. The real way of governing will be found in all the laws and body of laws that comply with the constitution. As such, the constitution should never be read to say what it has not provided even though it should be liberally construed to giving meaning and effectiveness so as not to have embarrassing anomaly that can result in vacuum of any office or cause serious crisis in the polity.[77] 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 our plural and dynamic society must involve.[78]

It is clear from our analysis that since industrial or commercial arbitration is on Exclusive Legislative List in the constitution, no state in Nigeria can legislate on industrial or commercial arbitration and whatever arbitration law that has been enacted by any state is null and void and itultra vires the constitution.

We have also shown that since the constitution limited National Assembly to industrial or commercial arbitration, customary arbitration is therefore excluded from the purview or jurisdiction of the National Assembly. Customary arbitration will fall within the existing law or residual matter which only a state can legislate upon. It is, therefore within the legislative jurisdiction of a state to make law on customary arbitration and other ADR methods in Nigeria.

Both the National Assembly and the Houses of Assembly of States in Nigeria should have legal units that will give advice to them on any pending Bill whether or not it is within their legislative competence. The legal unit is to be headed by a Professor of Law.

 


Bibliography

 

Articles

 

Abifarin O. An Examination of the Doctrine of Implied and Interent Paper of the National Government and the Residual Power of State in a Federation Doctrines in Perpetual Conflict, Gamtia Law Review Vol 1 No. 1

Abifarin O. Can a State Enact Pension Law in Nigeria? Contemporary Constitutional Issues in Nigeria, Adeyin Press Akure.

Abifarin O. A Critical Appraisal of the Scope and Limits of the Legislative Powers of NASS and State House of Assemblies in Nigeria. Contemporary Constitutional Issues in Nigeria Adeyemi Press Akure.

 

Books

 

Beinstein R. The Handbook on Arbitration Sweet and Maxwell London 1998.

Orgo J. O and Ajomo M. A. Law and Practice of Arbitration and Conciliation in Nigeria Mbeyi and Associate, Lagos 1999.

Apakta E. Nigerian Arbitration in Focus West Africa Book Publisher Lagos 1997.

Uche N. International Commercial Arbitration in Practice Rogent Printing and Publishing Ltd Kaduna 2008.

Ezesiofor G. The Law of Arbitration in Nigeria Longman Lagos 1998

Akande J.A Introduction to Nigerian Constitution 1999 M.J Publishers Lagos 2000

 

Constitution

 

The Constitution of the Federal Republic of Nigeria 1999

 

Statutes

 

Arbitration and Conciliation Act Cap A18 Laws of the Federation 2004

National Health Insurance Scheme Act

Kwara State Health Insurance Law 2018

Lagos Multidoor Court House Law 2007

Lagos Citizen Mediation Centre Law 2007

 

Cases

 

INEC v Musa 2003 3NWLR (Part 806) 72

US v Curtiss Wright Expert Corporation 1939 229 Vs 304

Mary Land V Mccullak 4 Wheaton 122

Attorney General of Federation vs ANPP and others 2003 1 EPRI

Gireude v Born L.A. 1961 I AII NLR 469

Australian Boot Trade Employers Federation Location v Whybrow 1961 I All Victoria v Common Wealth 1937 58 CLR 618


 



[1] Abifarin O.S, An Examination of the Doctrine of Implied and Inherent Power of the National Government and the Residual Power of State in a federation: Two doctrines in perpectual conflict Gambia Law Review vol. I Part I (2018) P. 103

[2] Ibid

[3] Attorney General of federation v. Attorney General of Lagos State 2013 16 NWLR (part 1380) 249. Attorney General of Abia State v. Attorney General of the Federation.

[4] Abifarin O.S. (2018) Can a State House of Assembly enact Pension Law in Nigeria? Contemporary Constitutional issues in Nigeria Adeyemi Press Akure p.1 Abifarin O.S (2017) Analysing the NHIS Act and the Kwara State Health Insurance Law within the context of the doctrine of covering the field, contemporary constitution issues in Nigeria, Adeyemi Press Akure, p. 223. Abifarin O.S, A critical Appraisal of the Scope and limits of Legislative powers of National Assembly and States Houses of Assembly in Nigeria, Contemporary Constitutional Issues in Nigeria, Adeyemi Press Akure P. 276

[5] Ajetunmobi A.O. Alternative Dispute Resolution & Arbitration in Nigeria Princeton Associates Publishing Co. Ltd Lagos 2017

[6]Orojo O. and Ajomo M.A. Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi& Associate, Lagos, 1999 P. 33

[7] Lagos Multi-door Courthouse Law No. 21, Laws of Lagos State 2007

[8] Citizens Mediation Centre Law No. 6, Laws of Lagos State, 2007

[9] Arbitration and Conciliation Act Cap A18 Laws of Federation of Nigeria 2004

[10] Harriman, R. “Mediation: Practice and Procedure.” Being a text of a lecture delivered at the Professional foundation course on ADR organized by the DCON Consulting at Command Guest House Asokoro, Abuja, 20th May 2005

[11]Ezejiofor, G. The Law of Arbitration in Nigeria, Longman Lagos 1998 P. 41

[12] Ibid

[13]Halsbury Laws of England Fourth Edition Nexis Lexis 2013 P. 1408

[14] 28 L.J. Ch P. 186

[15] Stroud’s Judicial Dictionary, Third Edition Vol. 2, P. 180 Print

[16] Bernstein, R. The Hand Book of Arbitration, London, Sweet and Maxwell, 1998 P. 420 Print

[17]Ezejiofor G. op. cit note 3

[18] Ibid

[19] Ibid

[20]Orojo, J.O. and Ajomo, M.A. Law and Practice of Arbitration and Conciliation in Nigeria, Lagos, Mbeyi Associates, 1999 P. 46 Print

[21]Akpata, E. Nigerian Arbitration Law in Focus, West Africa Book Publisher, Lagos, 1997 P.

[22]Uche, N. International Commercial Arbitration in Practice: Effective ADR or just Exortic Litigation, Corpus of Topical Legal Issues, Collection of Legal Essay written in Honour of Justice S. U. Onu, Rogent Printing and Publishing Ltd Kaduna 2008 P. 240

[23]Orojo J.O. and Ajomo A. op. cit Note 4

[24] Ibid

[25]Uche N. op. cit note 16

[26]Section 91

[27]Section 92 INEC vs Musa 2003 3 NWLR (part 806) 72

[28]INEC vs Musa 2003 3 NWLR (pt 806) 72

[29]U.S. vs Curtiss wright Export Corporation 1939 229 us 304 Maryland vsMcCullock 4 wheaton

[30] Posey R.B American Government little field Adam & Co. New Jersey 1975 

[31]Attorney General of the federation vs ANPP & others 2003 1 EPRI

[32] Section 100(1) of the constitution of the Federal Republic of Nigeria

[33] Section 100(2) of the constitution of the Federal Republic of Nigeria

 

[34] Section 100(3) &(4) of the constitution of the Federal Republic of Nigeria

[35] Section 100(5) of the constitution of the Federal Republic of Nigeria

[36] Section 101 of the constitution of the Federal Republic of Nigeria

[37] Section 103 (1) of the constitution of the Federal Republic of Nigeria

[38] Section 121- 123 of the constitution of the Federal Republic of Nigeria

[39] Section 126 of the constitution of the Federal Republic of Nigeria

[40] Section 128 of the constitution of the Federal Republic of Nigeria

[41] Section 129 of the constitution of the Federal Republic of Nigeria

[42]Section 100, see Division of legislative power under the 1999 constitution by idonigis P. O. in the law and practice of the legislature in Nigeria NWOSU KN ed. 2003 p. 85

[43]Item 34 of Exclusive Legislative List Second Schedule Part I

[44] Item 10 of the Exclusive Legislative List Second Schedule part I

[45]Part I Second Schedule

[46]Part II Second Schedule

[47]Part I Second Schedule

[48]JadesolaAkande Introduction to Nigeria Constitution 1999

[49]Ibid

[50]Section 1 (3) of the 1999 Constitution of Nigeria (as amended)

[51][1961] 1 All N.L.R. 469

[52]1961 1All NLR 469 at 470

[53]Ibid

[54]Section 64 (4)

[55](1914) 10 C.L.R. 266

[56](1937) 58 C.L.R. 618, P. 630

[57]Ibid

[58]JadesolaAkandeopcit

[59]Ibid

[60]JadesolaAkande op cit

[61]R.B. Posey-American Government little field Adams & Co. New Jersey 1974 p. 84

[62] Ibid

[63]Ibid

[64] R.B. Posey-American Government little field Adams & Co. New Jersey 1974 p. 84

[65] Item 34 of Second Schedule Part I

[66] Section 315 of the 1999 Constitution as amended

[67] Item 10 of Second Schedule Part I

[68] A.A. Daibu, The Lagos State Arbitration and the Doctrine of Covering the field: A Review the Gravitas Review of Business and Property Law (2015) Vol 6 No 1 p. 44

[69] Ibid

[70] Justices Eso, Supreme Court Years (1975-1991) His Notable Pronouncements Nigerian Law Publications Ltd,
(1991)

[71] Justice Uwais, Through the Supreme Court Cases (1979-2006) (Nigerian Law Publications Ltd, 2006)

[72] (2002) vol. 6 (Pt. 763) Nigerian Weekly Law Reports (NWLR)

 

[74] (2007) 11NWLR (Pt. 1046) 432 @ 485 see also major & Co. Ltd v. Schroeder (192)2 NWLR (Pt. 101)1, Ogboru v. Ibori (2005) 13 nwlr (Pt. 942) 319, Ngige v. Nwachukwu (2005) 2 NWLR (Pt. 909) 123, Anpe V.R.O.A.S.S.D. (2007) 11 NWLR (Pt. 1045) 431 etc.

[75] See Parts I & II of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria, 1999

[76] See section 4 (3) of the Constitution of the Federal Republic of Nigeria, 1999. See also AG (Bendel State) v. AG (Fed) (1981) 10 SC. 1 @ 132-134

[77]Ngozy Alili Esq., Constrution of Constitutional Provisions, The Constitution A Journal of Constitutional Development, vol. 12, No. 4, December 2012

[78] As per Kalgo JSC in, AG (Abia State) v. AG (Fed) (2002) 6 NWLR (Pt. 763) 264 @ 485-486