At the onset of the second millennium, the position of the Nigerian Jurisprudence pertaining to the hierarchy of international treaties vis-avis domestic laws was that the former had no superiority over the latter. Additionally, pursuant to section 12 (1) of the 1979 constitution in pari materia with Section 12(1) of the 1999 Constitution as amended, international treaties or conventions can only assume the force of law in Nigeria following ratification by the National Assembly. Section 12(1) of the Constitution provides as follows:
“No treaty between the Federation and any 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.”
Furthermore, the Supreme Court in the case of Abacha v Fawehinmi (2000) 6NWLR (Pt.660) 228 held that an international treaty has no such force of law as to make its provisions justiciable in our courts before its enactment into law by the National Assembly. In the case under reference, the Apex Court examined the application of the African Charter to the domestic enforcement of fundamental human rights and concluded that the African Charter had the force of law in Nigeria having been domesticated into our municipal law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990. The Court further held that treaties which have been incorporated into the body of the municipal laws such as the African Charter ranks at par with the municipal laws.
Recently however, a different dimension appears to have been introduced into this laid down principle in the case of JFS Investment Limited V Brawal Line Limited & 2 Ors (2010) 18 NWLR [Pt.1225] 495, thus creating a dichotomy in its application to pre 1960 treaties and post 1979 treaties as between Nigeria and the international community. A relevant example of a pre-1960 treaty is the Hague Rules 1924. The Hague Rules 1924, codified in the Carriage of Goods by Sea Act Cap C2 Laws of the Federation 2004 (COGSA), was an existing law in Nigeria at the time the 1979 Constitution came into force. Given that laws generally do not have retroactive powers, the Supreme Court held that Section 12 of the 1979 constitution cannot affect the applicability of the Hague Rules 1924 in Nigeria.
The reason for this exception is that by October 1960 at the Nigerian Independence, the Government of the Federation assumed all obligations and responsibilities of the colonial regime of the government which arose from valid international instruments such as the Hague Rules 1924. Nigeria became a party through exchange of letters between Hague, the United Kingdom and the Government of Nigeria on October 1, 1960. The Hague Rules 1924 was extended to Nigeria as a legislation which formed part of our laws before independence, and was received as our laws after independence. As such, the Supreme Court held that it does not require any further ratification as stipulated in Section 12 of the 1979 Constitution before it can be applicable.
The Supreme Court further held that the Hague Rules 1924 must be deemed to be an Act of the National Assembly having assumed the force of law in Nigeria and that the principle in the case of Abacha v Fawehinmi is only applicable to post 1979 treaties and not pre-1960 treaties. Finally, the Apex Court per Adekeye JSC at page 436, held as follows:
“The Hague Rules is autonomous and above domestic legislation of the subscribing countries and the provisions cannot be suspended or interrupted even by the agreement of the parties”. [Emphasis Added].
From the foregoing, it would appear that the Hague Rules have been elevated to a position superior to other domestic legislations including the Constitution. However, we cannot seem to reconcile this position with Section 1(1) of the Constitution which provides as follows:
“1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
It is our considered opinion that the Supreme Court ought to have held that the autonomy of the Hague Rules and their superiority to domestic legislations subsisted up until the enactment of the 1979 constitution. Thereafter, it became subsumed under the hierarchical structure of statutes in Nigeria with the Constitution at the topmost echelon as established in the case of Labiyi v. Anretiola (1992) NWLR (Pt. 258) 139; (1992) LPELR-1730(SC). We hope the Supreme Court will have the opportunity to again revisit this issue in the nearest future to give effect to the provisions of Section 1 of the Constitution.
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