APPLICABILITY OF IMMUNITY CLAUSE TO ARBITRATION IN NIGERIA

Abstract

This paper through desk-based research methodology examines the applicability of immunity clause to arbitration proceedings. The paper argues that the constitutional immunity provided for in section 308 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) is inapplicable to arbitral proceedings, by its nature and the express provision of the CFRN, immunity is inapplicable to arbitration. The paper examines the development, province and rationale of immunity alongside the meaning, nature and advantages of arbitration and argues that expressio unius ex exclusio alterius holds way. The paper further argues that just as a sovereign entity cast off its coat of immunity once it comes into contractual arena in order to promote fair play and sustained legitimate expectations of the parties, by no stroke of imagination can immunity be invoked to sequestrate the President, Vice President, Governor and Deputy Governor’s contractual capacity to arbitrate. The paper concedes that while it may be desirable for the same reason the public officials who are beneficiaries of the immunity clause are precluded from civil and criminal prosecution to be disqualified from subscribing to arbitration, the law as it is, does not preclude them. Besides, by their oath of office, they cannot engage in transactions that would warrant them submitting to arbitration, thus, expressly precluded them would do no harm.