Legal Systems Notes From Classes; Mr Olambintan

Question 1

What is the Nigerian Legal System?

Answer 1

It is the whole machinery of laws that operates within the Nigerian State.

Question 2

The NLS has been heavily influenced by?

Answer 2

Our colonial heritage (English laws make up 80 percent of our laws but despite this our legal system has not lost touch with our indigenous laws; the customary laws)

Question 3

What is a legal system?

Answer 3

It can simply mean the aggregate of rules in a particular society at a given time together with the institutions which go with them.

It is the summation of rules in operation in a society.

It can also mean the process for interpreting and enforcing the law.

It can also be defined as the body of rules or the doctrines associated with them that have the force of the law in a given society.

Question 4

What is the Nigerian Legal System?

Answer 4

It is the totatility of laws or legal rules and machinery which operate within Nigeria as a sovereign and independent state.

It is the whole machinery of laws that operates within the Nigerian State.

Question 5

What are the features of the NLS?

Answer 5

Military Influence

External Influence

Duality

The System of Precedence

The Existence of Different Types of Laws

Geocultural Diversity

Fusion of the Legal Profession

The Order of Judicial Hierarchy

Question 6

Discuss Duality as a feature of the NLS

Answer 6

The customary and English laws are still in operation within our legal system.

It is laughably sad that because of our colonial heritage, our customary laws have to be proved.
In fact there are 3 tests for validity for the customary law:
1. It must not be repugnant to natural justice
2. Not contrary to public policy
3. And not incompatible with any law being in force for the time being.

Question 7

Discuss external influence as a feature of NLS

Answer 7

The truth remains that our laws have been greatly influenced by the English Law.

But the Nigerian Law has also borrowed heavily from other sources eg Islamic Laws.

The Criminal Code and Matrimonial Causes Act are modelled after Queensland in Australia.

The Penal Code is modelled after the Sudanese Penal Code.

Question 8

Discuss Geocultural Diversity as a feature of the NLS

Answer 8

Nigeria is made up of so many ethnic groups which have their own customary laws that are all different from one another. The multiplicity and geocultural diversity compounds the big problem of having to prove these divergent laws. Another problem is the harmonising of these laws. An umbrella like the Common Law doesn’t exist. This heterogeneity is a distinct feature.

Question 9

Discuss the system of precedence as feature of the NLS

Answer 9

The Nigerian Legal System’s system of precedence can also be referred to as stare decisis.

It means let the decision stand.

It allows the earlier decision to be binding on subsequent cases.

Question 10

Discuss the existence of different types of laws as a feature of the NLS

Answer 10

There are so many diverse laws in existence and some of these laws do not have provisions for harmonisation.

Different states of the federation have different laws.

Some of these laws do not have provisions to accommodate other laws.

From the foregoing it is easy to understand that this gives way for the conflict of laws.

It may take many forms: between the English and Customary Laws, Federal and State Laws, International and Municipal Laws.

Question 11

Discuss the order of Judicial Hierarchy as a feature of the NLS

Answer 11

The NLS adopts the Western Style of court hierarchy.

A very good illustration of this point is the recently adjudged presidential election tribunal case. The case didn’t start from the supreme Court. The other candidates have nowhere else to appeal.

Question 12

Discuss the fusion of the legal profession as a feature of the NLS

Answer 12

Legal professionals are trained as solicitors and advocates under a unified scheme at the University level and at the Nigerian Law School.

Question 13

Discuss the military influence on the NLS

Answer 13

The various military interventions have left some indelible marks on our legal system by practice.

Take for instance how the 1979 and 1999 constitutions were birthed by the military. The autochthonous question.

The creation of states in 1976.
(List how it made the Western Nigeria Court of Appeal Defunct that was in operation in 1967- practical illustration)

The NYSC act of 1973.
(Research more on this)

Raise the question of centralization being a direct offshoot of military influence.
The military regime implemented policies that consolidated control at the federal level. A direct result of this was the gradual erosion of the derivation principle, favouring federal control.

And a close examination of the Unification decrees shows us that they touted to unify Nigeria and feared decentralisation because of ethnic, religious and regional tensions.

Question 14

Discuss the idea of law and its role in the society.

Answer 14

All over the world, even in the freest of societies, laws exist

Law enforcing mechanisms are put in place to regulate the way we conduct our affairs either as individuals or as corporate bodies.

It regulates our desires and also restricts state actions

It regulates and prescribes human behaviour eg Before you can drive a car, you must have a driver’s license.

It talks about your rights, structure and orderliness.

Without law enforcement agencies, societies will definitely be in disorder.

The existence of law and law enforcement machinery are necessary for the wellbeing of citizens: their freedoms, protections and rights inter alia.

Question 15

What are the 4 cardinal institutions for normal life to continue?

Answer 15

The Law

The Courts

The Personnel of the Law

And the Administration of the Justice System

Question 16

What is law?

Answer 16

There is no universally acceptable definition for law.

Okunniga has stated that nobody including the lawyer has offered, nobody including the lawyer is offering, nobody including the lawyer will ever be able to offer a definition of law to end all definitions.

It depends in your viewpoint.

It is a rule.

A rule or a body of rules made by insitutions, bodies and persons vested with the power to make such rules which are binding and enforced among the members of a given society or state. - Sanni

The whole reservoir of rules on which judges draw for their decisions - Max Herman Gluckman

Oliver Wendell Holmes, a major exponent of the Realist school, believed that the law should be defined as a prediction, more specifically, a prediction of how the courts behave. In other words he believes that it is whatever the courts say it is.

It is that rule of action which is prescribed by some superior and which the inferior is bound to obey- Sir William Blackstone

A command set by a superior being to inferior beings and enforced by sanctions. - John Austin in The Province of Jurisprudence Determined

Criticisms:
-Laws are not always couched in imperative language like “shall and shall not”, not all laws are commands. See rules relating to wills for instance.

-It says that the law is whatever the superior being says it is, not examining the goodness or badness of the rules laid down or the political nature or character of the lawmaker. It can be weaponised as a justification for dictatorship or totalitarianism.

-The idea of an uncommanded commander is only possible in an absolute dictatorship. Most forms of government place an emphasis on the rule of law and this connotes that not even a sovereign is above the law.

-Lastly, not everyone obeys the law because of fear of sanction. Some may agree with the law because it is logical and agree with it in principle. Eg smoking in public, murder etc.

Law is the rule which regulates how bodies and persons behave in the society.

It is a code of conduct.

Question 17

What is the foundation of the various schools of thought that we have?

Answer 17

The existence of the very many definitions of law.

Question 18

What are the definitions of law based on?

Answer 18

These definitions are based on the understanding and perspectives of the scholars. It is a reflection of their distinct ideas of law.

Question 19

Schools of thought represent?

Answer 19

The scholars that define law from the same perspective.

Question 20

Why do different schools of thought exist?

Answer 20

They exist because of the different backgrounds and orientations of the jurists, clergymen, historians, lawyers, judges, philosophers etc who have over time tried to define law.

Question 21

Discuss the Natural Law School

Answer 21

The Natural law school espouses what is fair, just and right.

What is fair or right or just? This question is the foundation of the criticisms of this school of thought.

These concepts are highly subjective.

They see law as what flows from a supernatural or divine origin. What is just is what emanates from God.

Man is not capable of making laws that are just.

Man must be subject to the will of God because nature is just.

Though man is sinful and corrupt, he still possesses the inherent natural virtue to do what is just and fair.

They believe that before any man-made law can be valid, it must conform to certain principles.

Exponents include: St Thomas Aquinas, Grotious etc

Serves as a validity check for monarchs and present day law makers.

Basis for the development of the present day Fundamental Human Rights. They are also known as inalienable rights.

The major weakness is what is fair, right and just?

Another weakness is that it gives room for anything to be fair and just.

Question 22

Discuss the Positive Law School

Answer 22

This school of thought defines law as what the sovereign says it is.

A first criticism; the nature of the sovereign or whoever is acting on his behalf is not taken into account.

“The uncommanded commander”

It is the direct opposite of the natural law school of thought.

They are man-made laws that do not examine the morality of the laws.

Exponents: John Austin, Hans Kelson and Thomas Hobbes.

Positive law offers the society law, order and stability.

Weakness: It doesn’t consider the political nature of the sovereign or the lawmaker.

Some sovereigns are dictators, man is naturally selfish.

A very good illustration about the pitfalls of is how this school of thought would see the laws made by Adolf Hitler during the WW2 dictating the Nazi soldiers to kill millions of people as law.

The political nature of the sovereign may make him do unfair things.

Does not recognize international law because it doesn’t emanate from the sovereign.

How then would we regulate international trade?

Question 23

Discuss the Historical Law School

Answer 23

It defines law as a product of historical development.

It sees law as an outgrowth of the people rather than an artifical contrivance.

Law is the spirit of the people that binds them together.

Exponents: Carl Von Savigny, Gustav Von Hugo

A good understanding of the history of the people must be demonstrated before a law can be accepted and passed eg LGBTQ rights in Nigeria.

A very good example are the customary laws.

Weaknesses:.

How long must a practice have gone on for before becoming a law?

When the spirit of the people changes, at what point can we say that the way of life of the people has changed?

Law is dynamic and not static.

This school of jurisprudence will continue to have acceptability because it is based on the way of life of the people.

Question 24

Discuss the Realist school

Answer 24

This school believes that law is what the courts will do about disputes and nothing more pretentious.

Exponents: Oliver Wendell Holmes, Jeremy Frank

In order to know the law one must look not towards the books but up to the courts. Eg: The results in the FCT in this recent presidential election dispute. Section 134 (2) CFRN states: he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

Weaknesses:
What is fair and just?
Corrupt officials
Emphasizes the uncertainty of the law and the role of the courts.
The procedures for enactments is disregarded but the pronouncements of the court is given the heaviest weight.

Question 25

Discuss the utilitarian school

Answer 25

This school of thought is of the opinion that a proper law is the one that promotes the greatest happiness for the greatest number of people in a society.

Obvious criticism: What about the minority? Should they suffer? Are they less important?

Laws that are made by the legislature must meet this standard: meeting the needs of the majority.

Is there a possibility that the law can make everybody happy?

No, there will always be arguments for and against.

This school believes that law is for the common good eg security for all.

Jeremy Bentham- pain and pleasure are the guiding forces of human activities.

Those who violate the law must suffer because they have caused pain to the society.

Weaknesses: Focuses only on the majority of the people who are particularly favoured

Question 26

Discuss the features of law

Answer 26

It is man-made. It is usually made by the parliament and delegated legislation according to the system of government in place in the given country.

It is not static but dynamic, it can be amended or modified.

It has territorial limitation.

It has an element of coercion, it is forceful. Breach brings about punishment.

It is a reflection of the moral state/condition of the society, it reflects the way of life of the people.

It exists in the continuum, it cannot die but may be modified.

Law is mostly codified (written) usually at the instance of the lawmakers. The ones that crystallize from customs are largely unwritten.

Law is a collection of rules, remedies and sanctions. It can also be described as a collection of do’s and don’ts

Question 27

What are the functions of law?

Answer 27

It specifies the structure and framework for the order of all aspects of life.

It acts as an instrument for regulating society.

It establishes the administrative justice system, law enforcement agencies, the penal institutions and the correctional facilities.

It acts as a code of conduct.

It is a means of resolving disputes in a society.

It grants remedies and justice to those who have been wronged.

Question 28

What are the aspects or classifications of law? These classifications are based on human view.

Answer 28

They can be broadly categorised into the Eternal Law, Divine Law, Positive Law and Natural Law.

Question 29

Briefly discuss the Natural Law as a classification of law.

Answer 29

Natural Law are the laws put in place by God to govern man and nature, the environment and the physical universe. Eg the law of life and death, law of gravity, law of reproduction, law of karma, law of punishment, youth, age, cycle of birth.

Lord Lloyd described Natural Law as a body of objective moral principles based on the nature of the universe discoverable by reason.

Question 30

Discuss Divine Law as a classification of law

Answer 30

Divine Law are the laws made by God or spiritual law. A very good example is the 10 commandments. It is received directly from God. It is grounded in the incapability of man to make valid laws because he is sinful, selfish and full of unjust tendencies.

Question 31

Discuss Eternal law as a classification of law.

Answer 31

It includes divine and spiritual law.

It is put in place by God and will continue to exist forever and ever.

Man can neither alter nor remove it.

Humanity can try to make a variation eg Thou Shalt Not Kill but the government can kill and even empower you to kill I.e in self defence.

Not that these variations are not contradictory with these eternal laws.

It is the foundation of all laws.

It is universal, constant and everlasting.

Question 32

Discuss Positive or Human Law as a classification of law.

Answer 32

These are man made laws, the direct opposite of natural laws.

It is laid down by the authorities of the society and stands as the sole source of the law.

It doesn’t bother about the ethical or moral content of the law. A good example is the 1999 CFRN.

It is also known as Legal Positivism.

Notable expnents include: Jeremy Bentham, John Austin, Roland Dworkin and Joseph Razz.

Jeremy Bentham and John Austin defined law in a similar way: A command from a superior being which an inferior is bound to obey.

These are the foundations of the major classifications.

Why do we classify law?

Helps to simplify the study of law, the features, the differences, the similarities and the relationship between these aspects of law.

Question 33

What are the secondary classifications of law?

Answer 33

Common Law and Equity

Common Law and Civil Law

Civil Law and Criminal Law

Public and Private Law

Written and Unwritten Law

Municipal and International Law

Substantive Law and Procedural Law

Question 34

Discuss the common law and civil law as a classification of law.

Answer 34

Common Law can be used in several senses but in this sense it means the law that was developed by the old common law courts of England: the King’s Bench, the Court of Common Pleas and the Court of Exchequer.

They are rules based on the immemorial customs of the people and were enforced by the aforementioned courts.

In other words, they came from the common practices of the people of England and Wales.

Common Law originated in the early middle ages in the King’s Court aka Curia Regis. It emerged from the judicial precedents of these courts.

Because of the multiplicity of the customs in existence, the judges developed standard customs and applied it to the facts of each case that was brought before them.

These acceptable customs that were justice oriented aggregated and crystallised into what we refer to as common law.

This also led to the development of stare decisis.

Common Law can be described to be an offshoot of the custom of the people.

This also led to the development of the writ system.

Refer to AO Sanni: In the course of time, there emerged a collection of uniform rules, judge-made rules, stare decisis.

The King’s Bench was formerly known as the court of the King before the King himself. The court was as important as the king.

The common law system is a strict system and full of legality.

Stare decisis: the writ system meant that the plaintiff had no course of action if their grievance didn’t come under an existing writ.

The decisions of previously decided cases were to be taken and applied to subsequent cases as far as the facts and circumstances are the same.

A good example is that in recent developments, you don’t need to have 25 percent of the votes in the FCT as long as you have the majority. That itself is an existing writ because this unspoken rule has been pronounced by the court.

Even when you get a writ to fit his claim, he may not be able to get an effective remedy.

Common Law is emotionless and automatic.

In practice as a class of law, common law is rigid and defective in a number of ways eg common law adheres to the privity of contract and doesn’t understand the concept of trust. It only recognises documentary evidence and has no way of eliciting oral evidence.

Civil Law on the other hand deals with the rights and duties between individuals.

It is concerned with the disputes between citizens with the sole purpose of allowing people to enforce their rights, to redress a grievance or to recover a property for their benefit.

A good example is municipal laws or laws of the state.

Civil Law helps you to be aware of your rights.

It defines rights and duties of persons to one another.

Deals with private relations between members of a society.

It offers legal remedies.

It entails a system whereby an individual who is injured by the wrongful act of another can seek remedy.

Examples of the types of fall under this category is the law of torts, contract, land law and family law.

It leads to the enforcement of rights, the recovery of money but not punishment.

No matter how minute the element of criminality is, the criminal proceeding must take its course.

Punitive damages: In a court proceeding, the court cannot term whatever remedy it arrives at as a punishment.

Sanni describes Civil Law as the law that is not criminal law or the law of the state and international law. It can also be common law.

To the military forces, it means anything that is not peculiar to the military forces.

An example of Civil Law is common law itself.

Question 35

Discuss Common Law and Equity

Answer 35

Common Law is a rigid system of law.

It brought much hardship.

Because of this there was a gradually transition to Equity.

The issue of getting a remedy was difficult if you didn’t have an issue that came under the scope of an existing writ.

As a result of this, petitions were sent to the King, and the court of Chancery.

The Court of Chancery represents the King’s conscience.

Equity means what’s fair, just and right.

Equity and Common Law existed side by side

Equity gave remedies to those who weren’t given remedies under common law.

Allowed for oral evidence.

The Judicature Act of 1873 and 1875 merged the common law and the Court of Chancery.

The courts now had the duty to administer the common law rules and the doctrines of equity.

Examples of some doctrines of equity is- “He who comes to Equity must come with clean hands” and “Equity is with the vigilant and not the indolent”.

In Nigeria, the same courts administer the rules of common law and the doctrines of equity.

The separation was causing much hardship so it became fused.

While the courts grant strict judgements based on common law rules, they give the equity based injunctive reliefs.

Where the 2 systems conflict on a matter, Equity prevails.

While common law only admits documentary evidence, equity admits oral evidence.

Common Law is predictable but equity isn’t.

Question 36

What is Repese Repese?

Answer 36

What will be will be

Question 37

Discuss public and private law as a classification of law.

Answer 37

Public law is concerned with the organs of the state and its organs. It is also concerned with the preservation of public order.

It regulates the relationship between the state and the citizens. It deals with the rights and duties of citizens to the state and vice versa.

Illustrations of the above point is public revenue, administration of government and security.

Aspects of public law is Constitutional Law, Administrative Law, Criminal Law and International Law inter alia

Private Law on the other hand regulates the relationship between individuals, defining and regulating their rights and duties.

Civil Law is an umbrella that covers private law.

It includes subjects like Banking, Law of Torts, Commercial Law, Family Law, Law of Contract, Succession inter alia.

Question 38

Discuss Civil and Criminal Law as a classification of Law

Answer 38

Lord Diplock in the case of Knuller v DPP held that civil liabilities is concerned with the relationship of one citizen to another and criminal liabilities is concerned with the relationship of citizens to the society as a state.

Civil Law entails the system where the one who is wronger by the harmful act of another can be compensated for the damage which he suffered.

Examples of branches of law that fall under this classification is Law of contract, law of torts, family law and Land law.

Civil Law leads to the enforcement of rights and recovery of money while criminal law leads to punishment.

Criminal law defines the acts or omissions which are against or contrary to public order or society as a whole which makes the guilty party liable for punishment.

Criminal law describes and defines the crime, the elements of the crime and the punishment.

The law must prohibit the crime and spell out the punishment in form of a fine or a term of imprisonment or even both.

A crime may be serious like rape or murder or minor offences like traffic violations which may be summarily tried.

To be successful in a criminal action the prosecution must prove his case beyond reasonable doubt.

In a Civil court, the plaintiff only needs to prove his case on a balance of probabilities.

The law demands a higher standard of proof in a criminal case so as to protect the accused person against the mighty power of the state and to guard against wrongful prosecution/ being convicted wrongfully.

There may be some overlapping in both systems eg assault, false imprisonment and defamation.

section 36(12) a crime must be written in the law I.e. it must be defined in a written law for it to be enforceable. It must be codified.

Question 39

Discuss substantive and procedural law as a classification of law

Answer 39

Substantive law is the whole body of rules and legal rules.

States what conducts are lawful and permissible or unlawful and prohibited.

It also states the penalties for the violations of those rules.

This is a direct representation of criminal law, so you can see criminal law in substantive law.

A breach or violation of a substantive law may result in a remedy or punishment which may be in form of a compensation, fine or term of imprisonment etc

Civil and criminal law can be seen in substantive law.

It covers law of contract, torts, criminal law and constitutional law that involve the statement of rights, duties and liabilities of individuals.

Procedural or adjectival or remedial law is concerned with the approaches to proceedings to enforce their rights and duties and how the prosecution or litigation is conducted.

Deals with the procedure of enforcing these rights.

Governs the application and administration of substantive law.

Deals with how the substantive law can be enforced in a law of court.

Provides the method and process required to initiate an action in court.

Provides the manner of prosecution of evidence including the manner of giving judgement and the enforcement of the said judgement.

It is the rule of practice and procedure which stipulates how a right or duty prescribed in a substantive law should be enforced.

With reference to enforcement of criminal law the court specifies the courts that have criminal jurisdiction, the procedure for the initiation of an action (a criminal action), admissibility of evidence, right to appeal, proof and punishment.

Procedural law deals with all laws except the procedural laws itself eg Constitutional law and criminal law.

Procedural law are civil and criminal law.

Specific examples include: The Lagos State Civil Procedure Law 2009, The Evidence Act, Administration of Criminal Justice Act

Question 40

Discuss Written and Unwritten Laws as a classification of law

Answer 40

Written law is a rule or statute that has been formally enacted or passed by the legislature.

They are the aggregated, debated and scrutinised through various stages before they became laws.

They are usually in a document and can be said to be a combination of norms in one or more documents.

They may be called decrees, edicts, ordinances, acts, codes or statutes.

A very good example of a written law is the 1999 CFRN.

Unwritten laws are unwritten laws and they are also binding rules of conduct which the society will enforce.

It can mean any rule or principle that is not written down like customary laws or conventions.

They may be unenacted but they may be partially written.

In the Nigerian Legal System our customary laws and received English laws are unwritten and unenacted laws

The British Constitution is an unwritten law.

Question 41

What are the major classifications of the historical development of the Nigerian Legal System?

Answer 41

1. The pre-colonial judicial administration
2. The colonial judicial administration
3. The post-colonial judicial administration

Question 42

Discuss the pre-colonial judicial administration

Answer 42

The judicial system has metamorphosed over the decades, determined by the structure of government.

The entry of the Europeans laid the foundation for the contemporary adjudication in Africa.

For example: In the 19th century before the annexation of Lagos in 1851, the Indigenous societies had their laws and customs which encompassed their own courts, systems and lawmaking processes.

These processes were strange to Europeans. How the igbos were able to manage their affairs whilst still being aecephalous. They had elders in councils who had executive and legislative powers

The Hausa’s pre colonial system of administration is the closest to what we have today. It was highly centralised and these political structures were unwritten and largely based on customs.

In those days, social punishments like ostracism and ridicule were in place.

The administration applied native authorities and understanding on all necessary issues.

With the influx of the Europeans, there was conflict with the opposing types of systems although there were efforts to harmonise the systems.

The colonial government’s had already started taking control of the colonies and they were uncomfortable with the traditional systems in place.

It was this conflict that led to the development of the consul courts.

These were primarily set up for the facilitation of trade.

The traditional courts still handled disputes between indigenes.

The oil river protectorate became the Niger Coast protectorate.

The consul court death with issues between the indigenes and the foreigners.

The major reason the foreigners came was for trade and commerce.

The consul courts observed and they gradually took over, establishing themselves as the judicial authority with jurisdiction on a lot of matters.

The courts of Equity also surfaced in the 19th century but to manage commercial relations.

The consul courts multiplied and gradually became divisions.

This was the beginning of the bifurcation of the legal system of the English protectorates, the most notable of this is Nigeria.

Question 43

Discuss the colonial justice administration.

Answer 43

It can further be classified into 2: The pre-amalgamation (1861-1914) and the post-amalgamation periods (1914-1960).

After the annexation of Lagos to the British crown in 1861, the Supreme Court Ordinance of 1863 established the Supreme Court in Lagos.

Subsequently it was replaced by the court of civil and criminal justice.

It was the highest court of the time.

Appeals were made to the West African Court of Appeal (WACA) im Sierra Leone.

Further appeal from WACA was made to the judicial committee of the privy council.

In 1874 the Gold Coast Colony was established. This included Lagos.

The Supreme Court Ordinance of 1876 provided for the supreme court of the colony.

The SC was to apply common law, the doctrines of equity and the statutes of general application.

This supreme court had an hierarchy consisting of:
The District Commissioner’s Court
The Divisional Court
The Full Court.

By 1886, Lagos ceased to be part of the Gold Coast colony.

Another Supreme Court was then established by a new Supreme Court Ordinance although it was quite similar to the previous one.

The indigenous court system also continued to flourish although it was limited to the affairs of the indigenes.

Some locals chose to go to the English courts, preference began to grow for the English judicial system.

What began as a purely commercial relationship became a complex political relationship in which the British crown dominated the political scene in Africa.

This is illustrated in the experience of the Royal Niger Company which began as the National Africa Company, a company doing business along the territory of the river Niger.

This company was empowered by the British crown to administer justice in the territories they operated in.

They established courts.

After 1914 there was a proclamation establishing further courts:
Another supreme Court
A provincial court
A native court system: empowered to exercise jurisdiction in criminal and civil cases involving the indigenes.

In 1933 there was further judicial reform to establish high courts and magistrate courts under the Protectorate Court Ordinance of 1933.

It repealed the provincial court system but the Supreme Court continued to exist.

The effort to demarcate the issues these courts could manage birthed the hierarchy of courts.

Other ordinances in place at that time were The 1933 Native Court Ordinace and the WACA Ordinance

The Native and the English Court Systems existed at the same time.

By 1943 there was an adoption of a universal court system country-wide and it led to the establishment of Magistrate courts in all parts of the country and the Supreme Court.

The Native courts continued to have original and exclusive jurisdiction in matters like marriage, inheritance, administration of estate, guardianship, family matters and chieftaincy issues.

In 1954 the court system adopted a Federal stance. The 3 regions and Lagos established High Courts.

These high courts applied and administered English law while the native courts dealt with customary laws.

The North embraced sharia laws.

Question 44

Discuss the Post Colonial Judicial Administration in the historical development of the Nigerian Legal System.

Answer 44

The political climate changed after the attainment of independence in 1960.

The changes solidified the foundation of the already established judicial systems in place.

The various courts in the 3 regions continued to be maintained.

The magistrate courts also flourished.

There was a federal supreme court.

The judicial committee of the privy council remained the highest court.

The most significant change was the abolition of criminal jurisdiction under the customary law because one cannot be convicted of a crime that is not written in the law with the exception of contempt of court.

There was no other significant change until Nigeria became a republic in 1963.

Under the 1963 constitution, the Supreme Court of Nigeria became the highest court of the land.

There was also the addition of another region: The Mid-Western Region.

There was an upgrade in the nomenclature and in the capacity of native courts. For example: The Native Courts in the Northern Region became known as Area Courts.

The Nigerial Legal System became severely affected by the military coups in January and July in 1966.

In 1967, 12 states were created under the State (Creation and Transitional Provisions) Decree no 17 of 1967

This consequently established more high courts.

This was the beginning of a series of military coups with a short-lived return to civilian rule in 1979 and during the period from 1967-till date, the country has been restructured so many times that there are now 36 states and an FCT.

The justice system remains decentralised up to the Court of Appeal which has divisions in the different states and the Supreme Court which is situated in the Federal Capital Territory remains the highest court in Nigeria.

In the post independence era; the different developments in the judicial system have had to do mostly with the appointment of judges during a military regime as well as the roles of tribunals and commissions of inquiry.

Note that during the military regime the role of the judiciary which is usually stated clearly in the constitution was limited considerably especially taking into consideration that the constitution is usually suspended.

(Google the bifurcation of the Nigerian Legal System)

Question 45

What does the term “sources of law” mean?

Answer 45

It means the fountain of authority of a law. In other words, it simply means where the legal rules derives its validity and authority from.

It is the origin of the whole body of the Nigerial Legal Sytem.

It can also mean the materials which contain Nigerian Law and the origin from which a legal rule derives its authority.

Question 46

What are the sources of law of the Nigerian Legal Sytem?

Answer 46

The sources of Nigerian Law are not wholly local given our history and colonisation by the British. As a result declarations and proclamations embedded the English laws as a part of ours.

1. Nigerian legislation
2. Received English Law
3. Case Law
4. Customary Law
5. Islamic Law
6. International Law
7. Opinions of jurists and legal writers.

Question 47

Discuss Nigerian Legislation as a source of Nigerian Law.

Answer 47

A legislation can also be called statutes.

These are laws enacted by the legislature in the written form.
As established by section 4 and chapter 5 of the 1999 CFRN these powers are vested in the National Assembly and State House of Assemblies.

The laws must have passed a prescribed process. Section 58 1999 CFRN

It is a powerful and exegent source of Nigerian Law.

It is a deliberate exercise of lawmaking powers by persons legally empowered to do so eg the National Assembly, State House of Assemblies, bodies that have been vested with delegated legislation powers eg The UNILAG Act of 1962.

Why is this the most important source? It represents the will of the people given the fact that the legislature comprises of the representatives of the people.

It is the most indigenous and homegrown source of Nigerian Law.

It is also the most important instrument for the tools of legal development in Nigeria.

Question 48

What are the 2 types of ways by which our statutes receive English Law?

Answer 48

1. General Reception: which is usually subjected to limiting dates. Receives the whole body of the laws.
2. Reception with reference to subject matter: only receives the English Law on a particular subject eg the practice and procedure of courts. Their peculiarity is that they are not subject to limiting dates as opposed to general reception. The language employed is “for the time being in force” which means from time to time.
   1st Jan 1900

Question 49

Give an overview of the various types of legislations in the Nigerian Legal System.

Answer 49

1. Ordinances
2. Decrees
3. Acts
4. Laws
5. Bye-Laws
6. Edicts
7. Delegated Legislation

Question 50

Elucidate on ordinances as a type of legislation.

Answer 50

These are statutes enacted by the legislative council. This was the body saddled with the responsibility of legislating for the nation before 1954.

Question 51

Elucidate on Acts as a type of legislation

Answer 51

These are federal laws enacted by the federal legislature eg laws enacted by the House of Assembly

Question 52

Elucidate on Laws made as a type of legislation

Answer 52

Laws are also known as state laws. They are enacted by a federating unit under a civilian government. I.e. Laws enacted by state House of assemblies

Question 53

What are decrees?

Answer 53

These are laws made by the central law making body under a military system of government.

Question 54

What are edicts?

Answer 54

These are laws made by the lawmaking body of the state, federating units or regions under the military system of government

Question 55

What are bye-laws?

Answer 55

These are regulations enacted by local government councils in areas within their legal competence.

Question 56

What is something to note about the CFRN regarding the distribution of legislative powers?

Answer 56

The CFRN regulates the distribution of legislative powers between the National Assembly and State House of Assemblies. The first makes for the federation and the latter makes for the state.

Question 57

Elucidate briefly on delegated legislation.

Answer 57

These are laws made in exercise of powers given by statutes aka enabling laws. These are laws made by bodies other than those constitutionally recognized to make laws. Eg the UNILAG act of 1962.

The central lawmaking body may be unable to identify the needs across various sectors.

But note that delegated powers cannot be further delegated I.e. delegare non potest delegatus

Subsidiary legislation also encompasses legislation made by administrative persons, agency or authority eg EFCC, NDLEA, NAFDAC etc

The president can order executive orders, the ministers, governors, commissioners

Question 58

Discuss extensively, the Nigerian legislative process. (How a legislative proposal gets developed into a bill)

Answer 58

(Before proceeding, research the different types of legislative proposals (how they are made and how they are expressed), outline the rationale behind legislative proposal)

The legislative process always, at least more often than not begins with a legislative proposal. This proposal then becomes a bill like the Not Too Young to Run act and the Electoral Act

(The proposal) is then sent to the parliament where it undergoes rigorous scrutiny and debate before it validly becomes a law.

It needs not take a particular form however it is expected that the subject matter of the object will specifically be mentioned.

It should answer the question, “ What do we want to achieve?”. It should highlight the problem it intends to solve and how it intends to address those problems.

It is compiled into a memorandum.

This memorandum is then submitted to the law reform Committee or a relevant sub committee of the legislature.

The proposal is then developed into a legislative bill which articulates and exhaustively outlines what parliament is expected to pass into law.

Question 59

Discuss extensively the lawmaking process (how the bill gets passed into law)

Answer 59

The CFRN has established a legislature that is made up of 2 separate houses and they are tasked with the burden of lawmaking Section 58(1-5) and section 59(1-5) stipulates the lawmaking process.

The initial introduction of a bill in a particular house is followed by the first reading in that particular house. The aim is to draw the attention of the legislators to that bill and to be generally acquainted with the subject matter. There is no debate during the first reading.

It is during this first reading that copies of these bills are distributed to the legislators and they are to read them at a later date.

During the 2nd reading it us assumed that the bills have been read because they shall be debated.

During this debate, questions will be asked.

After the 2nd reading, the standing committee (the watchdog in the lawmaking process) will deliberate and make further proposals and amend if the need arises.

The proposal is then sent back to the house.

The third reading (final reading) is where the legislators are required to vote by a simple majority.

It is then sent to the other house and the process is duplicated.

If there is an alteration, the 2 houses must agree upon it.

After all of these processes, it is then sent to the president. He has 30 days to give or withhold assent.

When the president gives his assent, it becomes a law.

If not, two-thirds of both legislatures will pass the bill and therefore becomes law, without needing the president’s assent.

Question 60

What is the rationale behind the rigorous law making process by the legislature?

Answer 60

Answer this.

Question 61

To what extent does the process of lawmaking by the legislature enhance the concepts of checks and balances and separation of powers?

Answer 61

Answer this

Question 62

What is the basic introduction when describing customary law?

Answer 62

The sources of Nigerian Law are not purely local i.e. limited to parliamentary enactments.

Customary and Islamic law are some of the important sources.

Customary law is the law of the various indigenous people of Nigeria.

These are customs that are accepted as binding by members of a particular community.

There are many customs prevailing in existence throughout Nigeria.

Before the advent of the British, we had laws that guided our affairs.

Social punishments like ridicule and ostracism were very important tools of discipline; people didn’t want their names to be of disrepute.

Question 63

How did Lord Obaseki define customary law?

Answer 63

Lord Obaseki in Oyewunmi v Oguneson describes it as the organic or living law of the indigenous people of Nigeria regulating their lives and transactions.

It is organic in that it is not static.

It is regulatory in that it controls the lives and transactions of the communities subject to it.

It is said that custom is the mirror of the culture of the people.

Question 64

In what other case was customary law defined?

Answer 64

In Kharie Zaidan v Fatimah Khalil Mohssen the SC defined customary law as “a system of law not being the common law of England and not law enacted by a competent legislature in Nigeria but which is enforceable and binding within Nigeria as between parties subject to its will

Question 65

What informed the definition of customary law in Joseph Ohai v Samuel Akpoemonypi?

Answer 65

It is correct to classify any law that existed before the colonial rule as customary law.

But it is also important to note that the whites classified the laws in place as customary law and made it subject to the English Law.

This is what informed the definition of customary law in Joseph Ohai v Samuel Akpoemonypi

Question 66

What are the characteristics of customary law?

Answer 66

1. It must be in existence at the material time.
2. It must enjoy general application among the people
3. It must be accepted as binding among the people
4. It is largely unwritten
5. It differs from tribe to tribe- it is not uniform
6. It is not a rigid system of law- it is flexible and plastic.
7. It is derivable from the customs and usages of a particular set of people.

Question 67

Are all customs customary laws?

Answer 67

Note that it is not every custom or rule of custom that qualifies as a customary law.

For it to qualify it must pass through the validity test.

Section 44 of the High Court Law of Oyo State provides thus:

Customary law will be applicable in the court if it is not repugnant to natural justice, equity and good conscience, if it is not contrary to public policy or incompatible directly or by implication with any law for the time being in force.

Also see Section 283 of the Evidence Act 2011

The tests can be classified into
1. Repugnancy test: This particular test requires that a custom should not be disgusting and repulsive to natural justice, good conscience and equity. But it is worthy of note that these concepts may be difficult to define. What is good conscience? Among the Yorubas, there are instances where the inheritance is done by the number of wives. If a man dies, the property would be shared according to the number of wives. The wife bearing 1 child and the wife bearing 10 children would inherit the same thing. The court in Danmole v Dawodu held that this practice is contrary with the common law doctrine of equality of inheritance among the children. The Court of Appeal (FSC) stated that it was erroneous.

In Guri v Hadeja Native Authority the suspected highway robber was not allowed to defend himself in court. This was contrary to the principle of fair hearing.

2. Compatibility test: Various enactments have been made and it is inevitable that some customs may be contrary to them. If they are; they cannot be applied in court. Similar to the ambiguity of good conscience, public policy carries a lot of vague connotations and thus it is difficult to define. It could mean public good or interest.
   Any custom that assaults or rapes the public welfare of the people will contradict Section 14 (2b) 1999 CFRN should be thrown out the window. Public morality is equals to public welfare.
3. Public policy test: J Jordan defines public policy as the rules which prevail in our communities as at the material time as to the conditions which are important to ensure its welfare.

Cole v Akinyele is a good illustration of the principle that a custom must be compatible with public policy before it is considered applicable. The facts of the case was that the deceased was married under a marriage ordinance and bore 2 illegitimate children outside marriage. Upon his death the illegitimate children sought to claim a piece of his estate and contended that according to the Yoruba custom they could if the deceased acknowledged them as his children. Legitimacy depended on the acknowledgement of paternity by the father according to yoruba customs.

It was held that it would be contrary to public policy to enable the deceased legitimise the children by any method other than the ordinance.

Question 68

Why is customary law important?

Answer 68

It is important because it covers chieftaincy matters, succession, marriage etc.

Question 69

Discuss Islamic Law as Customary Law

Answer 69

Islamic law is a law that governs the lives of Muslims- it is a religious law.

It regulates muslim interactions with non Muslims

It preaches against man-made laws and gives divine made laws as the alternative.

There is an explicit emphasis that Allah is the lawmaker/giver and that the muslim state is just a trustee.

Largely derived from known and legally written sources I.e the Quran, the Hadith, the Sunnah, Ijma and Qiyas.

There is a wide gap between the 2 and arguments are made that Islamic law should not be classified as customary law.

The colonial masters classified it that way when it is not so.

Section 2 of the Native Court Law of the Northern Region No 6 1956 Islamic Law was defined as customary law.

They both run in different channels- religious and traditional.

Islamic law is written and thus it enjoys the characteristic of rigidity, while customary law is quite flexible.

In Alkamawa v Hassan Bello and anor the SC stated that Islamic law does not belong to any tribe.

Question 70

Discuss International Law as a source of Nigerian Law

Answer 70

Nigeria is a member of various international organisations eg the UN, AU, Commonwealth etc

Because of these various memberships, Nigeria is a signatory to various international conventions and treaties.

These treaties and conventions are imported into our system but before they can be enforced they must be ratified and domesticated by the National Assembly. See Section 12 1999 CFRN

A treaty is any legally binding agreement between states

A treaty can also be known as a convention, protocol, pact and accord.