Sources of Law in Nigeria



The body of Nigerian law is traced to many sources. They include

  • English Law
  • Nigerian Legislation
  • Case Law
  • Customary Law
  • International Law

 

1. English Law

This originated from England, following the Norman Conquet of the 11th Century (1066BC) where King Willim I ruled. English law has an anglo-saxon origin and at the time, King Williams performed judicia; functopns before allocating these functions to able men placed over the Norman Royal Courts. These coursr include:

  • The court of Common Pleas
  • Exchequer
  • Kings/Queen’s Bench

There was an introduction of writs. This writ system involved the use of formal documents stating your pleadings before the courts. They included the writs of Habeas Corpus, Subpoena, mandamus and a host of others (Read our article on the English Law system of writs in Nigeria)
The Lord Chancellor was appointed as an appeal for cases addressed improperly at the Royal Courts. He stood in place of the king. The Lord Chancellor however presided over no court until when principles of fairness and upholding justice came in causing conflicts between the judgements of the common court judges and those of the Lord Chancellor

The judicature Act of 1873 was also birthed and became practiceable in 1875.
The Lord Chancellor (Equity) modified the Common Courts (Common law). What then is the importance to Nigeria’s civilization? What is the relevance of English law to Nigeria?

  • Because of Nigeria’s historical antecedent (colonial rule). By virtue of this, the English colonial masters as part of their administrative mechanism brought these statutes to their colonies (1861 annexation and enacted laws. These laws contained English laws because:
    • There was an influx of the whites who traded and disputes rose up, leading to the existence of the law
    • the customary law as unwritten - the European did not understand it. Itwas also hererogenic and had no specific seat.

There are two kinds of English Statutes. They are

  1. Imperial Statutes: This was forced on us. These statutes were made by Acts of Parliament. This Act of Parliament was a Foreign jurisdiction Act which was in efffect through the Orders in COuncil made by the British Crown. It was classified into
    • Just Gentum -Law of Nations
    • Jus Naturale - Law of Nature
  2. Received English Statutes: These are "reception statutes" which were adopted on their own accord into Nigerian laws.

The Statutes of General Application before 1914 (in Lagos, Southern and Northern Protectorates)

  • 1914-1960
  • 1960-1963 -- Northern, Southern, Western
  • 1963 -- Mid-Eastern, Northern, Southern, Westerm
  • 1976 (February 6) -- Nineteen States

The strength of the Reception clasuse shows its existence in Nigeria till date.

The Statutes of General Application

The SOGA

  • Section 45 Interpretation Act (Lagos)
  • Section 14-15 High Court Law (Eastern Nigeria)
  • Section 28 High COurt Law (Northern Nigeria)
  • Section 3 Law of England (Application) Law

In the Western Region, the English statutes is absent, although the principles of common law and equity remain.

 

Nigerian Legislation

This consists of local statutes made either by the Federal or State Legislature. It should  be borne in mind, the three levels of government in Nigeria (Federal State and Local Gevernment)

  • Federal Legislature
  • State Legislature
  • Local Government Council

 

  • Laws/Edicts
  • Ordinances, Acts of the National Assembly, Decrees of the military government, Laws of State Legislature, Bye-laws


By 1960 Ordinances, Edicts (state legislature), Decrees (military regime)

Acts of National Assembly

Subsidiary Legislation

Bye-laws are subsidiary legislation. They are made by virtue of certain powers (delegation). These bye-laws deal with motor parks, markets, hawking and related activities.

Nigerian legislation is without diminishing strength as the English law. This is because the bulk of Nigerian laws come from Nigerian legislation.

Case Laws

These are judgements of the courts. Section 6 of the Constitution of the Federal Republic of Nigeria 1999 provides for the superiority of the courts. Case law is based on judicial precedent, a doctrine of the common law which is also predicated on the hierachy of courts. According to this hierachy, the courts are arranged as

  1. Supreme Court of Nigeria
  2. Court of Appeal
  3. Federal High Court
  4. National Industrial Court of Nigeria
  5. State High Courts
  6. District/Magistrate Courts
  7. Customary Courts

Election tribunals are not law courts. They are constituted for election purposes.


3 Majors from the hierachy of Courts (Case law)

From the hierachy of courts, there are hkjdjkf ijfkcxn idso

  1. The Principle of bindingness: Also known as the doctrine of stare decisis (stay by decision), this is a principle  of the common law stating that judges in a case before them would abide by a previous case by higher judges in same circumstances. This principle is rational because:
    • It saves the judge the trouble of bringing up new ideas in new judgments.
    • It brings certainty in the law (predictability)
    • Litigants are not left with the whims and caprices of judges.
  2. The Principle of  Persuasive Authority: This states that a previous decision that is not on binding authority can merely be of persuasive authority. An example is the decision of the Federl High Court being considered by a State High Court.
  3. The Principle of Distinguishing: This states that "even though a previous decision may be very authiritative, perhaps, coming from a higher court in the judicial hierachy, nevertheless, there may be justifiable reasons on legal grounds why a later judge presiding on similar case may oblige or refuse such decision.

Case law based in judicial precedent and it borders around

  • Hierachy of Courts
  • Stare Decisis
  • Distinguishing Cases

Customary Law

This involves the traditions and customs of the local people "recognised" as law. Not all traditions of the locality is reckoned with as law. Customary Law has the following features and characteristics:

  • It is a picture of the people's belief because it is a living law and it must be in existence before it can be recognised.
  • It is dynamic (i.e it changes)
  • It is unwritten

Speed C.J in Lewis v. Bankole 

  • Validity
  • Repugnancy Test
  • Test of Public Policy
  • It must not be inconsistent with any written law

Establishing Customary Law

Proof before the Court

Judicial Notice



Post a Comment

Previous Post Next Post