THE POWER OF THE NATIONAL ASSEMBLY TO MAKE LAWS TO GIVE EFFECT TO TREATIES IN THE LIGHT OF THE ARBITRATION AND CONCILIATION ACT VIS-À-VIS THE ARBITRATION LAW OF LAGOS STATE 2009[i]
Lagos State in 2009 by its Law №10 enacted its Arbitration Law (The Law) which came into effect on 10th May, 2009[ii] despite the fact that there already exists a Federal Legislation in respect of the subject matter. Practitioners in the arbitration space within Lagos State may wonder as between the Law and the Arbitration and Conciliation Act CAP. A18 of 2004 (The Act), the governing enactment. Commenting on the Lagos Law, Akpata & Adegbonmire[iii] observed inter alia that:
The Arbitration Law of Lagos State was enacted in 2009, in part due to the desire of the Lagos State Government to enact its own arbitration legislation and in part to provide an update of the Arbitration and Conciliation Act, 1988. The Law operates as the default law governing any arbitration in Lagos where parties have not agreed on any other law. It is evident, that the Law sought to address some perceived lapses in the Federal Act.
It has been observed on the question of applicable law to arbitration in Lagos State that: ‘Only the Supreme Court can eventually finally determine the constitutional issues related to the co-existence or otherwise of the Federal and States Legislation.[iv]’ In clinically determining the governing enactment in Lagos State, Nigeria’s commercial nerve centre and home to the Lagos Court of Arbitration as between the two legislations, certain points need to be borne in mind:
a. The Act was enacted among others: ‘to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation; and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting State arising out of international commercial arbitration.’[v] It is thus a federal legislation and made to bring into effect a treaty Nigeria entered into.
b. The Law is a State legislation and subject to whether or not Arbitration falls within the Exclusive, Concurrent or Residual (which is not defined by the Constitution) Legislative Lists, the doctrine of covering the field may apply. By the doctrine, a law validly made by a State House of Assembly will be subservient to an Act validly enacted by the National Assembly; thus the principle applies only to matters within the Concurrent Legislative Lists. We find support for this position in Ogundare JSC’s dictum in AG Abia State v. AGF[vi] that:
“Eso, JSC at page 35 (referring to the case of AG Ogun State v. AGF (1982) 1–2 SC 13) commented thus: The last point I would like to comment upon in this case is the doctrine of covering the field. The learned Chief Justice has in this judgement referred to the authorities which I accept are applicable. However, I take the view that when one considers this doctrine, the phrase ‘covering the field’ means precisely what it says. Where a matter legislated upon in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency. Where however, the legislation enacted by the State is the same as the one enacted by the Federal Government, where the two legislations are in pari material, I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period the Federal legislation is in force. I will not say it is void. If for any reason the Federal legislation is repealed, it is my humble view that the State legislation, which is in abeyance, is revived and becomes operative until there is another Federal legislation that covers the field.”
Earlier, the Learned Law Jurist had commented that:
“It was exhaustively discussed and again applied by this court in AG Ogun State & Ors. V. AGF & Ors (1982) 1–2 SC 13; (1982) 13 NSCC 1. The doctrine is usually applied between a law enacted by the federal legislature and that enacted by a state legislature on the same subject. The doctrine was expounded by Fatayi-Williams, CJN at p. 11 of the 2nd Report as follows: “… where identical legislations on the same subject matter are validly passed by virtue of their constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject matter.”
2.0. RELEVANT CONSTITUTIONAL PROVISIONS
Relevant constitutional provisions are expected to be construed together. It is in this light that constitutional provisions relevant to this discuss have been quoted below.
Section 12 of the 1999 Constitution (as amended) provides:
1. No treaty between the Federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.
2. The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.
3. A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.
Section 4(4, 5, 7b, 7c) of the Constitution provides
4. In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –
a. Any matter in the concurrent Legislative List set out in the first column of part II of the second schedule to this constitution to the extent prescribed in the second column thereto; and
b. Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.
5. 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 by void.
7. 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
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 to the extent prescribed in the second column opposite thereto and
c. Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
3.0. RESOLVING THE DISPUTE
What law should guide an arbitral panel that sits in Lagos if there is a conflict between the ACA and the Arbitration Law? It is submitted with respect that ACA and not the Lagos Law should guide such panel.
First, it is submitted that by Item 67 of the Exclusive Legislative List in Part I of the first schedule to the Constitution, it is provided that: ‘Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.’ It is on the strength of this Item and Section 12 of the Constitution, that it is respectfully submitted that Acts made to bring into effect treaties entered into by the Government of Nigeria must be considered subject to the law-making procedure as defined by Section 12(3) which requires that the two-third of all the Houses of Assembly ratifies such Act to be under the Exclusive Legislative List.
It is our further submission that the fact that “the Federal Arbitration Act was promulgated as a Military Decree during a period of suspension of the constitution and that various States had and continue to have arbitration laws on their statute.[vii]” does not give credibility to the legislative competence of States’ Houses of Assembly to legislate on arbitration especially when Section 315(1) of the 1999 Constitution (as amended) gives allowance for the continued application of laws made before the coming into force of the Constitution subject to modifications necessary to bring it into conformity with the Constitution is borne in mind.
Furthermore, the argument that “[A]rbitration like litigation is a dispute resolution mechanism and considering that States have the competence to promulgate their respective court laws and rules of court there appears to be no rationale for ousting States of the legislative competence to promulgate arbitration laws.[viii]” is with respect misconceived. States’ power to promulgate their respective court laws is constitutionally laid down in such sections as 4(7)©, 6(5)(k), 274, etc. This with respect is not the case with respect to arbitration at least in the light of the fact of its origin in a treaty entered into by Nigeria.
It is our further contention that the idea of a Federal Arbitration Act co-existing with Uniform States’ Arbitration Laws to be recommended to States[ix] is with respect questionable in the light of the law-making procedure for treaties as set out in Section 12 of the Constitution which requires among others that the bill before being presented to the President is ratified by a majority of the Houses of Assembly. Why would there be a need for ratification by a majority of the Houses of Assembly when each of the Houses of Assembly would still be able to legislate on the subject matter? This perhaps explains why Section 58 of the ACA provides that: “This Act may be cited as the Arbitration and Conciliation Act and shall apply throughout the Federation[x].”
The foregoing should not be interpreted to mean the National Assembly cannot make laws that go contrary to treaties or extend the frontiers of treaties. However, where as in this case the legislative intent of the National Assembly is to make a treaty applicable, it is submitted that States’ Houses of Assembly cannot legislate on the subject matter under our present constitutional arrangement.
It is this writer’s considered opinion that the Arbitration Law of Lagos State 2009 regardless of the legislative rationale and update is an exercise in futility. Practitioners in the Lagos arbitration space who desire changes in the governing legislation need to take their lobbying to the National Assembly to expedite work on the Arbitration Bill.
[ii] Adedoyin Rhodes-Vivour, The Federal Arbitration Act and the Lagos State Arbitration Law: A Comparison <http://www.drvlawplace.com/media/Federal-Laagos-Arbitration.pdf> 1 assessed on the 25/2/2020.
[iii] Justice Ephraim Akpata JSC, The Nigerian Arbitration Law in Focus (Obosa Akpata & Olusola Adegbonmire ed, 2nd edn, West Africa Book Publishers Limited 2019) 17.
[iv] Vivour (n. 1) 3.
[v] Long Title to the Act.
[vi] (2002) LPELR-611
[vii] Vivour (n. 1) 3.
[viii] Vivour (n. 1) 3.
[ix] Vivour (n. 1) 3.
[x] Emphasis mine.