NIGERIAN LEGAL SYSTEM

TABLE OF CONTENTS PART ONE: INTRODUCTION

CHAPTER 1 - THE NATURE OF THE NIGERIAN LEGAL SYSTEM

CHAPTER 2 - HISTORICAL DEVELOPMENT

2.1 Before 1862

2.2 1862-1899

2.3 1900-1913

2.4 1914-1960

2.5 1960-1966

2.6 1966-1979

2.7 1979 - Present day

PART TWO: SOURCES OF NIGERIAN LAW

CHAPTER 3 - ENGLISH LAW

3.0 Introduction

3.1 Extended English Law

3.2 Received English Law

3.2.1 Common Law

3.2.2 Doctrines of Equity

3.2.3 Statutes of General Application

3.2.4 Survey of the Applicable English Statutes in Nigerian Today

CHAPTER 4 - CUSTOMARY LAW

4.1 Introduction

4.2 Types of Customary Law

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4.3 Characteristics of Customary Law

4.4 Establishing Customary Law

4.5 Validity of Customary Law

5.1 Introduction

5.2 Types of Nigerian Statute

5.3 Some other aspects of Nigerian Legislation

5.4 The Constitution as apart of Nigerian Legislation

5.5 Nature of Legislation

5.6 Canons of Interpretation of a Statute

CHAPTER 6 - JUDICIAL PRECEDENT (CASE LAW)

6.1 Introduction

6.2 Types of Precedent

6.3 Determining the Ratio Decidendi of a Case

6.4 Advantages of the Doctrine of Stare Decisis

6.5 Disadvantages of the Doctrine

6.6 Res Judicata

6.7 Differences between Res Judicata and Stare Decisis

6.8 The doctrine of Judicial Precedent and the hierarchy of Courts

6.9 Position of English Court decisions and other foreign Courts.

6.10 Position of works of Academics and Textbook writers

6.11 Position of International Obligation 6.12 Distinguishing

CHAPTER 7 - INTERNAL CONFLICT OF LAWS

7.1 Introduction

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7.2 Conflict Between English Law and Customary Law

7.2.1 Classification of Parties

7.2.2 The Law

7.2.3 Cases of Disputes Between Natives

7.2.4 Cases of Succession and Inheritance

7.2.5 Cases Between Natives and Natives/Foreigners

7.2.6 Cases of Disputes Between Natives and Non-Natives

7.3 Conflict Between different Systems of Customary Law

7.3.1 The Law

7.3.2 Western and Mid Western States

7.3.3 Northern States

7.3.4 Eastern States

PART THREE: LAW ORGANISATION

CHAPTERS - ORGANISATIONS CONNECTED WITH ADMINISTRATION OF

JUSTICE

8.1 Nigerian Law Reform Commission

8.2 Nigerian Institute of Advanced Legal Studies

PART ONE

INTRODUCTION

CHAPTER 1

1. The Nature Of The Nigerian Legal System

The Legal System in Nigeria today evolved principally out of legislation and

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activities that took place in this entity at least in the last hundred years.

Before the advent of the colonialists, the indigenous people of Nigeria had
their own form of administering justice.

The various ethnic groups administered their form of justice through local
customs. The situation did not stop with the advent and the introduction of
English Law but resulted in application of both forms of Laws. It shall be
seen in subsequent chapters that this co-existence of English Law and Local
Laws whether in terms of unwritten customs or Legislation has remained a
feature of our Legal System. The various sources of Nigerian Law have had
this attribute of being influenced by pre-independent activities.

The Customary Law has always been with the indigenous people. The
components of English Law, Common Law and Equity have had their origin
influenced similarly by Customs albeit of the English people. Precedent which
includes a system of scouting around for previous practices cannot be said to
be an entirely strange idea to any institution since it has always been natural
for individuals at cross roads to try to find out what others had done in
similar situations in the past.

Also, some legislation we have had cannot be said to be entirely novel in

their origin since we sometimes have customs, Common Law or Equity being
translated into legislative form. Therefore these sources cannot be separated
from each other and from our historical background.

The court structure too has not been a novel idea brought about by
civilization. Courts had been held by Local Chiefs, Obas, Obisetc to
administer justice on their subjects.

However it shall be seen that the present court practices in terms of

decorum and rules of evidence have been greatly influenced by external
forces. The courts have grown in number and in the nature of duties being
performed.

Our constitutional practice has a direct bearing on the appointment of

personnel and the jurisdiction of the courts especially the superior courts of
records.

In terms of personnel of the law comprising lawyers and judges and the
legal profession in which these people trained, its influence by English Law
though quite substantial in the past is now being completely indigenised.

In order to have a good idea of the Nigerian legal system therefore, there
shall be a detailed consideration of the historical development of the
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Nigerian legal system, the Nigerian legal system as an entity in terms of
administration of justice, the judicial set up and the Legal profession.

The various sources of Nigerian legal system shall be dealt with in detail to
see their present scope of application. Also, the various courts in the present
system from the superior courts of record to the inferior courts of records
will reveal how the present wheel of the machinery of justice is grinding.

A cursory consideration of the question “What is legal system” may result in

a conclusion that Legal System is the enforcement of laws. Legal system
however entails more than that. It encompasses the system of
administration of justice including the making of laws, the judicial set up of
the country and the legal profession.

(a) Administration of Justice

One of the distinctive qualities of one society from the other is the
administration of justice. The system and type of justice meted out in a
country is greatly influenced by the political set up, ideological belief,
religious faith, and the orientation of the participants in the process. Some
societies and countries have moved from a principle of ‘an eye for an eye’
evidenced by the institution of life imprisonment as maximum punishment.
The Nigerian legal system operated the adversary system of administering
justice. Under this system the accused person is generally presumed
innocent until proven guilty.

The judge should be an unbiased umpire. See Uzo v The Police (1972) 11 SC
37 andOkoduwa v The State (1988) 2 NWLR 76. This presumption places the
burden of proof upon the state to prove the guilt of the accused person. See
Onagoruwa v The State (1993) 7 NWLR 49 where it was held that in case
where there is no sufficient evidence to link the accused with statutory
elements of the offence he must be discharged and the court has no
business searching and scouting around for evidence where it cannot be
found.

Such action would be inconsistent with our adversarial system of

administration of justice. It would be inquisitorial in design and execution.

The case of Ogunlowo v Ogundare (1993) NWLR also emphasises whatis

expected of the court in this type of system. “In our adversary system of
justice, the role of the judge is that of an impartial umpire. He cannot make
a new case for either party where the case each had brought to the court
has collapsed.”

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The system is therefore designed to guarantee the application of the
fundamental rules of fair hearing reflected in the two maxims “let the other
party be heard” and “you cannot be a judge in your own case.”
(audialterampartem&nemojudgx in causasua). Administration of justice has
moved from a situation where it was placed in the hands of individuals or
ethnic communities to the hands of modern day government.

(b) The Judicial Set-up

Moving from the enactment of laws, one of the means justice is administered
is through the judiciary. The 1999 Constitution in section 6 vests the judicial
powers for the federation and for the states in courts established by the
constitution for the federation and the states respectively. The courts
mentioned in the section constitute the only superior courts of record in
Nigeria. The courts are the Supreme Court of Nigeria, the Court of Appeal,
the Federal High Court, the Sharia Court of Appeal of a State and the
Customary Court of Appeal of a State and any other court that the National
Assembly may so designate by law. See section 6(4) of the 1999
Constitution.

The judicial set up reveals a situation where Federal and State jurisdictions
are exercised concurrently throughout the country. Also civil and criminal
jurisdictions are exercised concurrently throughout the country. Also civil
and criminal jurisdictions were simultaneously exercised by these courts
without dichotomy.

This is unlike the situation in countries like England where some courts like
the County Court exercise purely civil jurisdiction. The Nigerian judicial set-
up has therefore tended to be very complex. Contributing to this is the
sources from which our law emanate. The sources of Nigerian law include,
English Law, Nigerian Legislation, Customary Law, and Law of Precedent or
Case Law. All these types of laws are enforced by the courts. When it is
realised that customary law is very diverse in its presentation the result can
easily be imagined.

(c) The Legal Profession

This includes the process of legal education and the practice of the
profession after being called to the Nigerian Bar. We have come a long way
from the pre-independence era where qualification for legal practice in
Nigeria was to be called to the English Bar or enrolled as a solicitor in
England. With the introduction of the Legal Practitioners Act of 1962, legal
education and practice is now basically controlled by Nigerian legislation and
this has also given room for differences between the position in Britain and
Nigeria. Upon being called to the Nigerian Bar, the legal practitioner is
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enrolled as a barrister and solicitor of the Supreme Court of Nigeria. He
therefore automatically qualifies to practice as a banister and solicitor.

There is no dichotomy of legal practice here unlike what obtains in Britain.

The Nigerian practitioner can also practice throughout the country as he
suffers no geographical limitation. A newly qualified legal practitioner can set
up legal practice immediately upon enrolment as he is not expected to
undergo any period of practical training or pupillage. In 1978, a mandatory
period of five years pupillage was prescribed for lawyers by the Regulated
and other Professions (Private Practice) Prohibition Decree before a newly
qualified legal practitioner could set up independent practice. This has since
been abolished by the Regulated and other Professions (Private practice)
Prohibition Decree of 1984. The Nigerian legal practitioner can also have
audience before any court of law once he complies with Section 8 (2) Legal
Practitioners Act which requires payment of a practice fee by all lawyers.
These amongst others are the distinctive features of a legal profession in
Nigeria.

CHAPTER 2

HISTORICAL DEVELOPMENT OF THE NIGERIAN LEGAL SYSTEM

2.1 The Period Before 1862

Evidence abound in history to show that long before the advent of British
Colonialists, there existed in the entity now called Nigeria a system or
systems of administration of justice. Although during this period justice was
administered mostly in an informal manner, as there were no system of
courts as they exist today. The law prevalent in this pre-colonial era was the
customary law in the south and the Islamic or Moslem law in the northern
part of the country. Whilst the Moslem law operative in the north was that of
the Maliki School which was written and administered by scholars versed in
the Holy Koran, the customary law of the south was unwritten and therefore
vague and not easily ascertainable.

In the southern part where the customary laws of various ethnic groups
were administered, there were no formal courts for settling disputes but
rather resolution of disputes was carried out by the paramount chief or king
and his councillors or advisers. Disputes were usually settled in the king’s
court or palace and there were no arranged sanctions for violation of
customary law neither were there institutionalised law enforcement agencies
as we have today.

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The situation in the northern part was better because with the acceptance of
Islam came the Moslem systems of government, law and adjudication which
were largely organised and institutionalised. The modern system of justice
as we have them today came with the advent of colonization in the mid -
19th century.

During this period, trading activities between foreigners and the indigenous
people had started in Lagos and other coastal towns. With these economic
activities came the need to settle disputes that arose in the course of
commercial interactions, which the existing traditional machinery of justice
were not adequate enough to cope with. The European immigrants could not
adjust to a society whose laws were unwritten, unorganised, and therefore
unascertainable, since they were coming from a country where their legal
rights and obligations were determined by formal courts and trained judicial
personnel.

The customary system of justice was so defective to cope with the demand
of modern business and commercial activities developing during this period
that it made the need for modernised system of justice very pressing indeed.

To cure this defect therefore the first consul was appointed in 1849 by the
British Government principally to settle disputes that arose between the
British merchants and the indigenous traders.

The consul constituted himself into a court known as the consular court. In
other territories beyond Lagos known as Bight of Biafra or Oil Rivers where
there was no consular court, other courts known as equity courts were
established jointly by the foreign traders and the indigenous traders to
resolve disputes arising among themselves. These courts were very popular
as they based their decisions on general notions of justice, but it had nothing
to do with principles of equity as it is known today.

The consular courts together with the equity courts constituted the first
English type of courts in existence before the annexation of Lagos in 1861. It
must be noted however that the customary system of justice still continued
during this period in all the trading areas including Lagos, but its jurisdiction
was limited to disputes involving indigenous people only.

2.2 The period from 1862 -1899

The territory of Lagos came under British rule in 1862 and with it came the
establishment of modern system of administration of justice. English law was
introduced by the Ordinance No. 3 of 1863 and this was followed by the
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establishment ofa Supreme Court with civil and criminal jurisdictions by the
Supreme Court Ordinance 1863.

This was later replaced by the Court of Civil and Criminal Justice based in
Lagos. During this period the settlements of West Africa comprising of
Lagos, Sierra Leone, Gold Coast (Now Ghana) and the Gambia were placed
under one government known as the Government of West Africa
settlements.

Consequently a Court of Appeal for the whole of the settlements known as a

West African Court of Appeal (WACA) was established with its seat in Sierra
Leone. All appeals from the aforementioned settlements lay to the West
African Court of Appeal. Further appeal lay from the WACA to the judicial
committee of the Privy Council in England. Trial by jury in criminal cases was
introduced during this period.

In 1874 a unitary government was formed consisting of Lagos and Gold

Coast Colony. WACA no longer formed a part of the court hierarchy for this
new colony.

1876 for the colony of Lagos. This consists of a full court (i.e. a Court of
Appeal), a divisional court with original and appellate jurisdictions and the
District Commissioner’s Courts. The law applicable then comprised of English
law, equity and statutes of general application which were in force in
England on 24th July 1874. At the period, the Royal Niger Company which
was established by charter was empowered to administer justice with due
regard to the customs and laws of the indigenes who were parties to a suit
in the areas over which it had jurisdiction provided that such laws and
customs were neither repugnant to natural justice, equity and good
conscience nor incompatible with any local statutes.

It is note worthy that the introduction of English law into the British Colony
of Lagos marked a turning point in the history of the Nigeria Legal System.

2.3 From 1900 -1913

During this period, the protectorate of Southern Nigeria was established by

an amalgamation of the Niger Coast Protectorate and the territories of the
Royal Niger Company by the Southern Nigerian Order-in-council 1899.
Under the new protectorate the system of justice was re-organised once
more. A High Commissioner was appointed and empowered to legislate by
proclamation. Pursuant to this he established a supreme court with original
and appellate jurisdictions in criminal and civil matters. Furthermore, for the
first time Native Courts were established by statute.

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These courts were to take over the administration of customary law from the
pre-existing indigenous courts whose jurisdictions had hitherto not been
disturbed. Consequently, two categories of Native Courts were established
by the Native Courts Proclamation 1900. These were Minor Courts and
Native Councils presided over by District Commissioners. Commissioner’s
Court was also established as an arm of the Supreme Court. The Native
Councils had both original and appellate jurisdictions and were empowered
to make rules embodying any customary law in their districts and make bye
- laws for the good governance of the natives in their jurisdictions.

One notable feature of the native courts of this period was that although the

courts were referred to as “Native Courts”, their authority derived from

English law. The Native Courts of this period were therefore not genuine
native courts.

There was infact a law in 1901 which provided that the jurisdiction of the
native courts was to be exclusive of any traditional authority. This move by
the then British Government dealt a heavy blow on the pre-existing
indigenous courts which by 1901 proclamation became illegal courts.

The Colony and Protectorate of Southern Nigeria

In 1906 the colony of Lagos and the protectorate of Southern Nigeria were
unified to form the colony and protectorate of Southern Nigeria. The native
court system of the colony and the protectorate like that of the Southern
Protectorate was defective in many respects. It was alleged that native court
clerks often received bribes and that they even tried cases. Under a 1906
proclamation however, the native courts were to henceforth exercise their
judicial functions under the instruction of the Chief Justice or any other
judge of the Supreme Court. Notwithstanding this effort the native court
system was a failure.

The Protectorate of Northern Nigeria

Under an enabling law of 1899 the protectorate of Northern Nigeria was

established to take effect from 15' of January 1900 and it comprised the
territories of the Royal Niger Company North of Idah. A High Commissioner
who was empowered to establish courts was appointed over the new
protectorate. Pursuant to this, four categories of courts were established
namely:

(a) A Supreme Court,

(b) Provincial Courts (one in each province),

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(c) Cantonment Courts, and

(d) Native Court (which was by a separate proclamation).

The Supreme Court was a court of first instance as well as appellate court
just like the one in the Southern Protectorate. The Provincial Court was
presided over by a Resident with an Assistant Resident and a Justice of the
Peace as members. The cantonments Courts were established for various
local cantonments or local government areas and were presided over by
cantonment magistrates. The Native Courts on the other hand were presided
over by one or more persons appointed by a Head Chief or an Emir with the

approval of the Resident. Where there was no Head Chief or Emir the
Resident was empowered to appoint members of the court.

2.4 January 1914-September 1960

The beginning of this period was an important landmark in the history of

Nigeria as a whole as on 15th January, 1914, the colony as well as the
Protectorates of both Southern and Northern Nigeria were amalgamated to
become the colony and protectorate of Nigeria. This was when the present
Nigeria as a political unit came into existence. Immediately after the
amalgamation, three types of courts were established for administration of
justice for the country as a whole. These were the Supreme Court, the
Provincial Court and the Native Court established by the Ordinance of 1918.
Despite the Native Court ordinance, however, no native court was
established for the colony of Lagos until 1938.

In 1933 the court systems in Nigeria were once again overhauled. The
provincial courts were abolished and high courts and magistrate courts were
established for the protectorate. These courts did not have jurisdiction in
cases relating to title to or interest in land which was the exclusive
jurisdiction of the Native Court. In some cases appeal lay from the decisions
of a native court to a magistrate court while at other times appeal lay
directly from a native court to the High Court. The High Court served as an
appellate court to the Magistrate Court, whilst appeals from the High court
and the Supreme Court lay to the West African Court Appeal, which was re-
established in 1928 as an appellate court.

In 1943 another reformation of the legal system was carried out. A new
Supreme Court for the entire country was established pursuant to 1943
Supreme Court Ordinance. The new Supreme Court was to apply English
Common Law, Doctrines of Equity and Statutes of General Application in
force in England on 15' January, 1900. Note however that the Supreme
Court of this period was still a court of first instance but was presided over
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by experienced legal practitioners. In the same year the whole country was
divided into several magisterial districts and magistrates were appointed to
preside over them. These courts replaced the ones established in 1933. The
jurisdiction of the Native Court was extended and the Children and Young
Persons Ordinance 1943 was enacted. Juvenile courts were established for
the first time to take care of cases involving children and persons below 17
years of age.

In 1954, Nigeria became a Federation by virtue of the constitution that

came into being that year. The new Federation comprised of 3 regions
namely the Northern, the Western and the Eastern regions with Lagos as a
Federal territory. These regions were granted a measure of autonomy in
governance and administration of justice. Under the new constitution new
system of courts were established.

A Federal Supreme Court having jurisdiction over the whole country was
established while high courts and magistrate courts were established for
Lagos and also in each of the regions. Statutory courts referred to as
customary courts were established in the western and eastern regions whilst
the North had what was referred to as native courts. These native courts in
the North were empowered to administer both Moslem law and non-Moslem
law concurrently. Furthermore, a customary court of appeal known as
Moslem Court of Appeal was established in 1956 to hear appeals from the
native courts.

This was later replaced by the Sharia Court of Appeal in 1960, which was
established to hear appeals from native courts involving Moslem Personal
Law only. In that same year a court of resolution was established to resolve
jurisdictional disputes between the High Court and the Sharia Court of
Appeal.

Another important landmark reached during this period was the enactment
of the Penal Code which was applicable only in the Northern region. It
replaced the criminal code which until then was in force throughout the
whole country. District Courts vested with civil jurisdiction only was also
established by virtue of District Court Law 1960; still in the same year the
Criminal Procedure Act 1960 which came into force provided for the
establishment of magistrate courts with criminal jurisdiction. Appeals from
the decisions of the Federal Supreme Court lay to the Judicial Committee of
the Privy Council.

Under the 1954 Constitution the WACA ceased to be in the hierarchy of

courts in Nigeria.

2.5 October 1960-January 1966

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Nigeria became an independent state within the Commonwealth on 15‘
October, 1960. The legal structure in the country remained largely the same
as before independence. Nigeria was still a dominion under Her Majesty’s
Government even after independence until 1963 when the monarchy was
abolished and Nigeria became a full republic. A fourth region known as Mid
Western region of Nigeria was created out of the existing western region.
New constitutions for each of the three regions came into existence and one
for Mid-Western Nigeria was not enacted until 1964.

The Privy Council remained the highest court of the land until same was
abolished in 1963 and the Federal Supreme Court which was renamed
Supreme Court of Nigeria became the court of last resort in Nigeria. The
1960 Constitution introduced judicial service commissions at the federal and
regional levels to advise on the appointment of judges

The 1963 Federal Constitution that came into being abolished the customary
criminal law by providing that no person was to be convicted of any offence
unless the offence was defined by a written law, the penalty for it prescribed
therein. The constitution of each region prescribed a Court of Appeal to be
established in each of the regions. This was to serve as an intermediary
court between the High Court of the regions and the Supreme Court of
Nigeria. However, no such court was established during this period. The
constitution had a comprehensive provision for the appointment of members
of the judiciary including the Chief Judge of Nigeria who was to be appointed
by the president on the advice of the prime minister. Note that during this
first republic, Nigeria operated the parliamentary system of government
modelled after the British Parliamentary system. Also during this period the
customary systems were reformed. The native courts known as “Area
Courts” were established in the Northern region and were put under the
control of the native authorities.

2.6 January 1966-1979

In 1966 the young republic of Nigeria suffered a major setback when the
military struck by way of a coup d’ etat and the political order in Nigeria was
dismantled. On assuming power in January 1966, the first thing the military
did was to give the new military government a legal backing by suspending a
substantial part of the existing constitution and promulgated laws
establishing their legitimacy and superiority.

Pursuant to this, the Constitution (Suspension and Modification) Decree No.

1 of 1966 was promulgated. This Decree suspended and modified some
provisions of the Federal Constitution and those of the regions.
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Consequently, a government known as the Federal Military Government
came into existence and by virtue of the new decree military governors were
appointed for each of the regions. It is important to note that under the new
decree the jurisdiction of the courts were ousted in certain respects and to
back up this, S.1. of Decree No. 1, 1966 provided inter alia that “No
question as to the validity of this or any other decrees or edict shall be
entertained by any court of law in Nigeria”. See the celebrated case of
Lakanmi&Anor v A. G. West S.C. 58/59 of 4/4/70. See also the case of
Adamolekun v. The Council of University of1badan (1967) All NLR 213.

On 24th of May of the same year another decree was enacted which
changed the name “Federal Military Government” to “National Military
Government and among other things abolished the existing regions.

The new decree demolished the federal structure of Nigeria and replaced it
with a unitary system of government. Nigeria was divided into provinces
with all the powers concentrated at the centre.

Dissatisfied with this new political arrangement another military revolution

occurred again on July 29, 1966. The new military government restored the
federal system of government consisting of four regions and a federal
territory of Lagos. During this period there was political unrest in various
parts of the country in the Northern, Western and Eastern regions following
the events that occurred during the second military revolution of July 29.
These waves of political unrest which engulfed virtually every part of the
country eventually culminated into a civil war in 1967.

Shortly before the break out of the civil war, the entire country was divided
into 12 states by virtue of the States (Creation and Transitional Provisions)
Decree of 1967. Significantly, in the same year, a Court of Appeal was
established for Western Nigeria. In 1973, a Federal Revenue Court (now
known as Federal High Court) was established which handed mainly fiscal
matters. The Federal Capital Territory Decree of 1976 established the federal
capital territory at Abuja. Still, in the same year, the title of “Chief Justice” of
a state was changed to “Chief Judge.”

To reduce the workload of the Supreme Court, an intermediary court known

as the Federal Court of Appeal was established to adjudicate over the entire
country. The Western Region Court of Appeal, which was established earlier,
was abolished in 1976 by the same decree that established the Federal
Appeal Court. In 1977 the Land Use Decree now referred to as Land Use Act,
came into force with significant provisions affecting the status of land and
capacity to own land.

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Another military take over occurred in 1975, in which the new government
among other things announced a transition programme that would restore
democratic order once again in 1979. In furtherance to this, a
constitutionwould usher in the second republic. The pre-existing 12 states
were increased to 19 states in anticipation of the take-off of the second
republican constitution.

In 1979 a new constitution came into force, which was more extensive in its
various provisions than the former constitutions, and the federal status of
Nigeria was entrenched once again. Under the new democratic rule there
was a departure from the former parliamentary system of government to
presidential system pattered after the American Presidential Constitution.
During this period more branches of the Federal Court of Appeal were
established nation-wide and more Judges appointed to bring Justice nearer
to the grass-roots.

2.7 From 1979 to Present day

The Second Republic survived until 1983 when another military revolution
ousted the civilian regime and suspended the constitutional provisions and
modified them by virtue of the Constitution (Suspension and Modification)
Decree 1984. One of the changes during this new military regime was the
change in the authorities vested with appointment and removal of judges

The Federal Court of Appeal was renamed Court of Appeal. The new regime
barely existed for about two years when another military coup was staged in
1985 ushering in a new legal order and system of administration with
various enabling decrees promulgated while others were repealed - e.g. the
widely detested Public Officers (Protection Against False Accusations) Decree
4 of 1984 was abolished.

From independence to this period, the country witnessed a total of 5 military

revolutions within the short period of the nation’s existence as an
independent sovereign state. Each of these military revolutions affected the
legal system one way or other. In 1984 two additional states were created
bringing the total number of states to twenty-one (21).

Another constitution was enacted in 1989 in preparation towards returning

the country to civil rule once more in 1992. The 1989 Constitution, which
was supposed to be an improvement of the 1979 Constitution, was rejected
on the ground that it did not represent the will of the Nigerian people. In
1990 the laws of the federation were revised and published for the first time
since

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1958. New additional states were created in 1991 bringing the total number
of states to thirty while Abuja remained the federal capital territory.

The transitional programmes continued until 1993 when ban on partisan

politics was lifted and presidential election took place on June 12 1993.This
was subsequently annulled on the ground of alleged election malpractice.
The annulment of the election generated a lot of controversies and was
followed by civil disturbances in almost every part of the country, which
ultimately led to the exit of the military government and an interim national
government was put in place. No sooner was this government installed than
the question as to its validity came to the fore and the interim government
was declared an illegal system in a celebrated decision of a High Court in
Lagos State. The interim government lasted only three months after which
the Abacha military regime came into power. The civilian governors in the
states were sacked and military administrators appointed in their place to
take over affairs of the various states.

The title of president used by the former military leader was changed to
“head of state”. This new military regime promised a brief transitional
programme that would bring in civil rule and accordingly, another
constitution was recommended for the country. Pursuant to this, a
constitution drafting committee was inaugurated in 1998 with
representatives from all the constituents in Nigeria With the demise of the
Military Head of State in 1998 another transition programme was put in
place by the AbdusalamiAbubakar regime that came into power. Several new
political parties were formed out of which five were registered officially. A
new constitution was enacted which came into force on 29th of May, 1999,
and consequently ushered in the 4th Republican government headed by
President OlusegunObasanjo.

Since then there have been 3 democratically elected Presidents namely:

Umaru Musa Yar’adua (29 May 2007 – 5 May 2010), Dr Goodluck Jonathan (6
May 2010 – 29 May 2015) and MuhammaduBuhari (29 May 2015 to date).

There have been some major law reforms including the following:

 The 2004 revision of the laws of the Federation

 The passing of the National Industrial Court Act 2006 purporting to elevate
the National Industrial Court (NIC) to a superior court of record, but the
Supreme Court in NUEE v BPE declared this to be in violation of s. 6(3) and
(5) of the 1999 Constitution.

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  The consequent passing of the Constitution of the Federal Republic of
Nigeria (Third Alteration) Act of 2010, which established the NIC as a
superior court of record at par with the High Court. See s. CC: 254 A. See s.
254C which gave expanded exclusive jurisdiction over labour and
employment matters to the NIC.
 The Electoral Act of 2002 gave way to that of 2006 and now that of 2010 as
amended.
 New parastatals were created to fight financial crimes - EFCC and ICPC
 The old Evidence Act was repealed and a new Evidence Act of 2011.The
new Act made provisions for admissibility of computer generated evidence
 Administration of Criminal Justice Law of Lagos was passed.
 Administration of Criminal Justice Act was passed in 2015.

PART TWO SOURCES OF NIGERIAN LAW

CHAPTER3

ENGLISH LAW

3.0 Introduction

English Law constitutes a source of Nigerian Law. As a source, it is made up

of (a) The Extended English Law and (b) The Received English Law.

3.1 Extended English Law:

Comprised of statutes made in England and applied directly to Nigeria by

their own force or by the order of the British Government. The basis of their
application was the Colonial Law Validity Act of 1865 from which the colonial
masters derived their authority to legislate for the colonies. Extended English
Law was in effect statutes enacted by the British Parliament to have the
force of law in Nigerian before independence due to our colonial status.
Being a British colony the country was pinned to the full legislative authority
of Britain. Upon independence in October 1960 however, and by virtue of the
Nigeria Independence Act of 1960, Nigeria became a fully independent
sovereign nation, thereby depriving the British Government of the power to
legislate for Nigeria. The Independence Act also empowered the Nigerian
Legislature to repeal or amend any Extended English Law extending to
Nigeria. Examples of Extended English Law that have been repealed in
Nigeria include:

(1) The West African Fugitive Offenders Order in Council 1923;

17
(2) The Copyrights Act 1911.

3.2 Received English Law:

Comprised of English Law received into Nigeria through local legislation. The
rules are received in the laws of the courts permitted to apply such law and
in subsidiary legislation.

See (a) S. 26 & 29 High Court Law of Northern Nigeria 1963. Cap. 49;

(b) S.15 (1) and (2) High Court Law of Eastern Nigerian 1963;

(c) S. 12 High Court Law, Lagos Laws 1973. Cap 52;

(d) Law of England Application Law, Western Region of Nigeria Law 1959.
Cap. 60;

(e) S. 45 Miscellaneous Provisions Act;

(1) S. 28 Interpretation Act 1962;

(g) Law (Miscellaneous Provisions Law), Lagos Law 1973. Cap 65;

S. 32(1) Interpretation Act, Laws of the Federation of Nigeria 1990 Cap.

192. (in force in the country as Federal Law.) The provisions of the statutes
are similar. S. 32 (1) Interpretation Act 1990, Law of the Federation
provides (1) “Subject to the provisions of this section and except in so far as
other provisions are made by any federal law, the common law of England
and the doctrines of equity together with the statutes of general application
that were in force in England on the Ist day of January 1900 shall in so far
as they relate to any matter within the legislative competence of the federal
legislature be in force in Nigeria.”

(2) Such imperial laws shall be in force so far only as the limits of local
jurisdiction and local circumstances shall permit and subject to any federal
law.

For the purpose of facilitating the application of the said imperial laws, they
shall be read with such formal verbal alterations not affecting the substance
as to names, localities, courts, officers, persons, moneys, penalties and
otherwise as may be necessary to render the same applicable to the
circumstance.”

The implication of all these provisions is that the following forms of English
Law were being received into the country: (1)Common Law (2) Doctrines of
18
Equity (3) Statutes of general application that were in force in England on 1
st January 1900.

Content Of The Received English Law In The Western States Of Nigeria: The
former Western Region (now Oyo, Ogun, Ondo, Osun, Ekiti Edo and Delta
states) received English Law via the Law of England

English Common Law and the doctrines of equity. However in terms of

statutes, the region had selected English statutes which the government
considered necessary to continue to be in force and enacted them as local
legislation. These laws were enacted in twenty one laws; the process was
completed by enacting the Law of England (Application) Law. Cap. 60 WRNL
[ 1959] which in section 3 provided that the common law and the doctrines
of equity should be in force in the region and provided in S. 4 that no
imperial Acts shall be in force within the region.

3.2.1 Common Law: The term ‘Common Law’ was introduced by the
colonialists to mark a distinction between the general written law of the
universal church from rules peculiar to the provincial church. In later years
common law courts of England namely, the Court of Common Pleas (which
dealt with cases where the King was particularly concerned) and the Court of
Exchequer (which dealt with revenue) empowered by law to administer the
law and custom of the realm. Under the guise of enforcing this and apart
from administering the few legislations by the king, the royal judges took
the local customs that were found and bound them together into a national
law. It consisted of general and local customs carried through the realm by
the assize judges on their circuits. Common Law is therefore based on
customs. Thus the law was ‘common’ and different from what was special or
extraordinary - e.g. Roman law.

Common Law gradually developed through the technique of argument,

exposition and speculation by the advocates who appeared before judges. In
a case where a novel situation is being presented the advocate and the
judge would scout around for the most similar case available. On finding
this, arguments are received as to whether the two cases can be similarly
treated or distinguished.

This technique is a character of common law which can only be sustained by

adequate reporting of previous decisions because the essence of common
law is that it grows through judicial decisions reported by lawyers. The rules
of common law are found in judicial decisions. Under the operation of
common law, a decision of a court operates retrospectively describing what
the law isor had been rather than what it shall be. The use of the doctrine of
precedent has gradually turned common law into a rigid system.

19
In a Aide sense therefore, common law means the legal system and habits
of legal thought evolved by English men. In this sense it can be contrasted
with systems of law derived from other jurisdictions e. g. Roman law. It is
thus a label for one kind of legal system.

In the narrow sense, common law is the result of the system of precedents
used in old common law courts. It refers to all the unenacted portion of
English laws contained in judges’ decisions but excluding those rules
formerly devised and administered by the Court of Chancery. It is thus used
to distinguish rules derived from judicial decisions of superior courts in
contrast to those arising from statutory law. Note however that not all
judge-made laws are derived from common law, some derive from equity
which are of distinct historical origin. This is the common law as a source of
Nigeria law.

3.2.2 Doctrines of Equity: Equity refers to the body of rules administered by

the former English Court of Chancery. Its development is connected with
many factors. For instance in the 13th century, England judges saw their
duty as enforcing what justice demanded. By the 14th century however,
emphasis was laid on the application of the law. Since justice according to
the law may not necessarily be fair, its application sometimes resulted in
injustice despite the fact that a man’s case had been fairly tried and the law
accurately applied. This tended to narrow down common law into a rigid
system since it was being dominated by technicalities. The need for a more
flexible machinery of justice eventually arose.

In the 14th century, a litigant was sometimes deprived of remedies at

common law through the activities of mighty subjects. Juries and even
judges were sometimes intimidated by these powerful men into arriving at
decisions far from being justiceable. These conditions gave rise to
dissatisfaction and prospective litigants started addressing petitions for
justice to the King, who delegated the answering of such to the Lord
Chancellor. The Chancellor, as an ecclesiastic, exhibited a different idea of
justice from the common law judges and a more acceptable system of j
ustice began to evolve in preference to common law. The guiding principle of
chancery was conscience which meant that justice would be given to a
petitioner if good conscience entitled him to a remedy. In this respect it may
be said that equity was developed by the old English Court of Chancery to
mitigate the rigidity of common law. The

work of chancery is therefore supplementary to common law.

Note that the early idea of justice has since suffered an eclipse. Even though
chancery was still said to be a court of equity, just like common law, it
hadceased to be a fluid thing and had become a set rules manifested by the
20
use of decided cases in the establishment of the principles of equity in courts
of law. The rules of equity, like those of common law are now found in
judicial decisions. In Nigeria, courts administer common law and equity
together and a conflict in both is resolved in favour of equity.

Scope Of The Limitation Date In Received English Law: English Law was
received via various High Courts, all Laws similarly worded. A question that
had been raised was whether the date, 1st January 1900 contained in the
statutes applies to all aspects of the received English Law or whether it
applies only to statutes of general application. The controversy was
especially fuelled by the provision of S. 15 High Court Law of Eastern Nigeria
1963. The section provides:

“The common law of the doctrine of equity and the statutes of general
application which were in force in England on the 1 st of January 1900... “

(1) Dr. Allot believed the limiting date of 1 s’ January 1900 applies to all
aspects of the received English Law. His argument was based on:

(a) S. 83 of the former Gold Coast Ordinance which was similar to S. 15

High Court Law of Eastern Region.

(b) He also based the argument on an isolated obiter dictum of Petrides J. in

Solomon v African Steamship Co. 9 NLR 99 which was to the effect that “the
statutes of limitation ........ were statutes of general application in force in
England on January 1, 1900 and they, in common with other statutes of
general application which were in force on that date, are together with the
common law and the doctrines of equity which were in force in England on
the same date in force within the jurisdiction of this court............”

(2) On the other hand the following arguments were used against the
suggestion that the limitation date applies to all aspects of the received
English Law.

(a) In the High Court Law of Northern Region S. 28 which received English
Law is arranged in paragraphs which clearly show that the date applied only
to statutes of general application and not common law and the doctrines of
equity.

The Federal Act and the Lagos Law which received English Law used the
words TOGETHER WITH instead of AND that was in the Eastern Region
provision.

21
(c) The Western region received only the common law and the doctrines
of equity by virtue of the law of England (Application) Law, 1959 and this
contains no limitation date.

(d) Professor Park argued that Dr. Allot’s position does not reflect actual
judicial practice as Nigerian Courts have always followed pre and past 1900
English decisions. Following cases used to buttress this in law of contract
and tort. UAC v. SakaOwoade [1955] AC 130 which applied the common law
doctrine of vicarious liability as enunciated in CAPS v Grace Smith & Co.
[1912] AC. 716.

In the law of contract is the case of Ajayi v R. T. Briscoe [ 1964] 3 All ER.
556 which followed the equitable principle of promissory estoppel as
enunciated in the case of Central London Property v High Trees House Ltd.
1947 K.B. 120.

(e) Common Law being common sense is a dynamic concept and cannot
be tied to a particular period in history.

These parts show that the limitation date does not apply to common law and
doctrines of equity but only to statutes of general application.

Note (1): Though Common Law and doctrines of equity are applicable in
Nigeria, they are only of persuasive authority as Nigerian Courts are not
bound by them.

3.2.3 Statutes Of General Application

The meaning to ascribe to the phrase “statutes of general application” was a

source of divergent opinions among judges and academicians. Many tests
were laid for the determination of whether a statute is of general application.

(1) The first of such tests was that which provided that a statute must be
in force throughout the United Kingdom i.e. (Britain, Scotland and Ireland).
It was applied in the case of Re: Estate Of James Sholu II NLR. 36 where the
court held that the Land Transfer Act 1$97 was not a SWM;

of general application because it was not in force in Scotland and Ireland.

However this test has been rejected because the statute itself speaks of
statutes of general application in force in England and not the United
Kingdom. The above case was later over-ruled in the case of Young v Abina[
1940],WACA 180 where the same Land Transfer Act was held to be a statute

22
of general application as it applied to the estates of persons dying in England
after January 1, 1898.

(2) Another test propounded for the determination of statutes of general

application is that the statute must be applied generally throughout the
colonies. This was submitted by counsel in the case of A. G. v John Holt &
Co. [1936] 2 NRL 1. This test implies that an Act must be in force in all the
colonies to qualify as a statute of general application. For instance before a
Nigerian Court can apply a statute it must ascertain that the same statute is
being applied in all other colonies like Ghana, Gambia, etc. Before Ghana
can apply the same Act, it must ascertain that Nigeria and the Gambia are
applying it.

A different test was stated by Osborne C.J. in the case A. G. v John Holt &
Co. [1936] 2 NRL 1(supra) in the following words:

“Two preliminary questions can be put by way of a rough but not infallible
tests - (1) By what courts is the statute applied in England? (2) To what
classes of the community in England does it apply. If on the 1st of January
1900 an Act of parliament was applied by civil and criminal courts, as the
case may be to all classes of the community, there is a strong likelihood
that it is in force within the jurisdiction. If on the other it was applied only by
certain courts (e.g. a statute regulating procedure) or only to certain classes
of the community (e.g. an Act regulating a particular trade) the probability is
that it would not be held to be locally applicable”.

Judicial authorities have faulted this test, in IGP v Kamara [1934] 2. WACA
185, the Summary Jurisdiction Act 1848, which applied only to magistrate
courts, was held to be a statute of general application. Similarly in Riberto v
Chahin [1845],14 WACA 476, the Common Law Procedure Act of 1852 which
regulates only procedure was held to be statute of general application. These
cases contradict Osborne’s first test that an Act applied only by certain
courts (e.g. Act Regulating Procedure) would not be of general application.

Despite the criticisms against the test by Osborne C.J., it has been
submitted that an Act which passes his test (i.e. a pre-1900 English statute
which applied to all classes of the community in England) would indisputably
be of general application. See Lawal v Younan[ 1961 ] I ANLR 245 where the
Fatal Accidents Acts 1864 were held to be statutes of general application.
Braithwaite v. Folarin [1938] 4. WACA 76 where the Fraudulent
Conveyances Act 1571 was held to be a statute of general application. “The
statute in question is in view a statute of general application, applying as it
seems quite generally to ordinary affairs and disputes of men without any
qualification, or speciality restricting its application”. Similarly in Young v
Abina[ 1940],WACA 180 (supra), the Land Transfer Act was held to be a
23
statute of general application and the court went on to say that “it is difficult
to see how a statute could be of a more general application.”

[n response to Osborne’s criteria that a statute must be applicable to all

classes A the community in England before it can be a statute of general
application, it was argued that it would be sufficient for an Act to apply to all
members of the particular class which it governs, through the geographical
generality of England. An illustration is an Act which purports to regulate the
activity of lawyers / doctors in England. To be of general application, it must
actually regulate medical practice throughout the whole of England and its
application should not be limited to London alone. It is immaterial that the
Act is restricted to the class of people constituting the medical profession
alone.

In the light of all these suggestions and cases, it was concluded that there is
no general authority in the case law mentioning any complete specific
criteria for the determination of statute of general application. Each statute
is considered on its own merit. But a statute most likely to be held to be of
general application if it was in force on 1 s‘ January 1900 and

(a) In respect of the subject matter it applies to all classes of the

community in England OR

(b) It applies to all members of the particular class that it purports to

govern in England.

Section 32 (2) Interpretation Act similar to S. 45 (2) Law Miscellaneous

Provisions Act:

“SUCH IMPERIAL LAWS SHALL BE IN FORCE SO FAR ONLY

CIRCUMSTANCES SHALL PERMIT AND SUBJECT TO ANY FEDERAL LAW.”

The implication of this section is that not all pre 1900 statutes of general
application were automatically exportable to Nigeria e.g. an Act establishing
the Anglican Church as the Church of England or an Act dealing with snow in
England.

Note however, that the fact that circumstances in Nigeria which cause
difficult questions to arise in relation to an Act was held to be no reason to
exclude it on this ground. See Lawal v Younan [ 1961 ] I ANLR 245 (supra) it
was submitted that Nigeria customs of family relations would raise many
difficult questions in the application of Fatal Accidents Act and that the court
should exclude them as being unsuitable in local circumstances. The Act
enables the widow of a man killed by the tort of another to sue the other for
24
the tort on the condition that the widow does not remarry before
proceedings commenced. Counsel submitted that the practice of levitate
whereby a widow is inherited by her deceased husband’s brother will bar the
widow’s right under the Fatal Accidents Act. The judge admitted that these
may be true but held that it is not enough ground to hold that the Fatal
Accidents Act does not apply. 32(3) Interpretation Act, 1990 Laws of the
Federation similar to section 45(3) Law Miscellaneous Provisions Act:

“FOR THE PURPOSES OF FACILITATING THE APPLICATION OF THE SAID

IMPERIAL LAWS THEY SHALL BE READ WITH SUCH FORMAL VERBAL
ALTERATIONS NOT AFFECTING THE SUBSTANCE AS TO NAMES,
LOCALITIES, COURTS, OFFICERS, PERSONS, MONEYS, PRACTICE AND
OTHERWISE AS MAY BE NECESSARY TO RENDER THE SAME APPLICABLE TO
LOCAL CIRCUMSTANCES.”

This provision enables the court to substitute words in England for Nigeria
e.g. Nigeria for England, Lagos for London, etc. The alteration is never
allowed to affect the substance of the enactment. Only verbal alterations are
allowed. See Apatira v. Akanke [1944] 17 NLR 149. The Wills Acts requires
two witnesses to be present at the same time and counsel urged the court
tooverlook this irregularity using the provision above. See also Adeoye v
Adeoye, [1962] NLR 63; Obilade’s Nigerian Legal System, (2) Park’s source
Of Nigeria Law.

2.4 Survey Of The Application Of English Statutes In Nigeria Today

A cursory look at the receiving enactments would suggest that a wide variety
of English statutes were received into our legal system. However Professor
Obilade correctly stated that only rarely is an English Act both of general
application in England and not prevented by local circumstances from
operation n Nigeria.

Between February 1986 and March 1987, a review of pre-1900 English

Statutes of General Applications which had continued to be in force in certain
parts of the country was undertaken by the Nigeria Law Reform Commission.
The need for a review was necessitated by the fact that most of the Acts had
been repealed and replaced with modern and more relevant Acts even in
England. Yet they continue to be applied here in Nigeria. It was considered
beneath national independence to continue to apply old and obsolete English
Acts.

The procedure adopted by the commission in view of the controversy and

the uncertainty as to which English Act is of general application was to
examine each pre-1900 English Act which is prima facie of general
application and in force in Nigeria. Special attention was paid to the
25
relevance of the Act to present Nigeria circumstances and a decision was
taken as to whether or not the Act should be repealed and not re-enacted at
all or whether the whole or part of the Act should be re-enacted with or
without amendment and in what form. This may be in the form of a new
Edict or Decree incorporating the relevant provisions of one or more English
statutes or in the form of an amendment to an existing enactment.

The next question was whether the repeal in the case of the states should be
by way of an amendment of the provisions of the states’ High Court law by
which these statutes were received into the legal system or whether a
separate Edict should be enacted for this purpose. The second option was
considered more desirable as it will ensure a clean break from the colonial
past. This was the method adopted by the former Western region which
enacted into law, the Law of England (Application) law cap. 60. 1959 edition
of their laws.

At the end of the review, all the pre-1900 English statutes in force in Nigeria

which were neither relevant nor appropriate or which were not in

consonance with norms of Nigerian society were recommended for repeal or
amendment as the case may be. Such English laws that were amended will
be in force

CHAPTER 4

CUSTOMARY LAW

4.1 Introduction

Customary Law is one of the sources of Nigerian Law. The

customary law of a community is a body of customs and
traditions that regulate the various kinds of relationship between
members of the community. See TO Elias’ “Nature Of African
Customary Law.”

“Custom is a particular way of behaviour which because it has

long been established among members of a social group or tribe,
can develop and acquire the force of law or right.”

It consists of customs accepted by members of the community as

binding. (See TO. Elias, in his Essay on “Nature of African
26
Customary Law”) Customary law consists of “The body or Rule
which are recognised as obligatory by its members.”

It must be noted from inception that the use of the word ‘custom’
does not presuppose that there is a uniform set of customs
prevailing throughout the country. It is merely a blanket
description covering many different systems.

4.2 Types Of Customary Law

Customary law in Nigeria maybe divided in terms of nature and

source into 2 classes namely:

(1) Ethnic customary law

(2) Moslem (Islamic or Non-Indigenous Customary) Law

Ethnic Customary Law: This aspect of customary law is

indigenous, applies to members of a particular ethnic group and
is unwritten. There are several of such customary laws in the
country due to the multiplicity of tribes or ethnic groups. For
example we have the Ijesha, Ife, Benin, Enugu customary laws.
This type of customary law usually operates within the area
occupied by a particular tribe. However, the ethnic customary law
of an area, is usually similar to that of another area where the
indigenous people live: for example, the customary law on the
issue of marriage in Igboland may be the same as that in another
area where the Igbo people are predominant.

Moslem Law: As a source of Nigeria Law, Moslem law

is regarded as customary law.However, unlike the ethnic
customary law, Muslim law is written and its source is basically
foreign. It is also called Islamic law or the Sharia. Moslem law can
apply throughout the country because it is not founded in any
particular locality. Thus one can describe Muslim law as religious
law based on the Muslim faith and applicable to members of
the faith.

27
In Nigeria, it constitutes received customary law introduced into
the country as part of Islam.

Because it is in written from, it is comparatively rigid. Its content

is not readily affected by social changes unlike ethnic customary
law. The sources of Moslem law are:

(1) The Holy Koran

(2) The practice of the prophet (sunna)

(3) The consensus of scholars,

(4) Analogical deductions from the Koran and the practice of the
prophet.

4.3 Characteristics of Customary Law

a) Acceptance as an obligation by members of the

community - whereas the criteria of validity of modern laws
depends on its being enacted by a sovereign or supreme
legislature, that of customary law rests rather on its
acceptance by the community whose affairs it regulates.
Such members must consider the custom as obligatory on
themselves. See EsugbayiEleko v Government of Nigeria [
1931 ] AC 662 at 673.
Consequently, any custom or tradition, which does not
command such acceptance, lacks the character of law, but is
a matter of mere social observance and the individual can
afford to be indifferent about it.

Customary law may also be described as an expression of

behaviouristic patterns among a people. As was said in the
case of Owoniyin v. Omotosho [1961] ALL NLR 304 at 309, it
is a mirror of accepted usage; see Ogunlowo v Ogundare [
1993] NWLR where the court held that customary law is a
mirror of accepted usage and cannot be decreed or
legislated out of or into existence; see also Okonkwo v
28
 Okagbue [1994] 9 NWLR30“ ......... for a custom to have the
force of law it must be approved by consent of those who
follow it.”

b) It must be in existence at the time of application-an

abandoned custom therefore has no legal validity since such
would not command acceptance.

In the case of Lewis v Bankole [1908] NLR 83, Speed C.J.

stated that “the native law and custom which the courts
enforce must be existing native laws and customs and not
that of bye gone days”. In other words, an alleged custom
that has not established itself as the accepted norm or
pattern of behaviour or where though once accepted has
been abandoned, has no legal validity. See Alfa v Arepo
[1963] WNLR 95.

c) Customary law is flexible- because of its unwritten

nature, it changes from time to time to reflect changing
social and economic conditions. See Alfa v Arepo [1963]
WNLR 95.(Supra).

The flexible nature of customary law was stressed in the

case of Lewis v Bankole [1908] NLR 83 by Osborne C.J.
when he said:

“one of the more striking features of West African

native custom ......... is its flexibility. It appears to have
been always subject to motive of expediency and it
shows unquestionable adaptability to attending
circumstances without entirely losing its character.”

4.4 Establishing Customary Law

Customary Law may be established in 2 ways:

(1) By proof

29
(2) By judicial notice

The means of establishing customary law in non-customary

courts are provided for in the Evidence Act. S. 16 Evidence Act
2011 provides:

(1) “A custom may be adopted as part of the law governing a

particular set of circumstances if it can be noticed judicially or can
be proved to exist by evidence”.

(2)“The burden of proving such a custom is upon the person

alleging its existence”.

S.17 Evidence Act provides that “A custom may be judicially

noticed when it has been adjudicated upon once by a superior
court of record.”

S. 18 (1) Evidence Act – “where a custom cannot be established

as one judicially noticed, it shall be proved as a fact.”

(A) Proof Of Customary Law Before Non-Customary Courts

Before these courts, customary law is a question of fact.

Therefore, unless a custom has been judicially noticed, a person
seeking to establish its existence must prove it by adducing
sufficient evidence in support. Fadiora v Aboride [1992] 6 NWLR
(Pt. 246) pg. 221.

“Native law and custom is a matter of evidence to be decided by

facts presented before the court in each particular case unless it
is of such notoriety and has been so frequently followed by the
courts that judicial notice would be taken of it without evidence
required in proof.” See S. 16(1) E.A. (supra).

There are 3 methods of proving customary law in non-customary

courts.
30
1. Proof By Witnesses

Types of witnesses:

(a) Witnesses of Fact -This cover people who are able to

testify that a particular thing was done in a particular
way. See SS. 18 (2)& 73 Evidence Act.

(b) Witnesses of Opinion - See S. 68 of Evidence Act

“when the court has to form an opinion upon a point of
foreign law, native law or custom ... the opinion upon that
point of persons specially skilled in such foreign law,
native law or custom ... are admissible”

Note (1): On number of witnesses needed to prove:

Queen v. Chief Ozogula ex parte Chief Ekpenga [1962]
WNLR which held that though the proof of customary law
is not by the number of witnesses called, yet it is not
enough that he who asserts the custom should be the only
witness.

See also Fadiora v Aboride [1992] 6 NWLR (Pt. 246) pg.

221. “Native law and custom must be strictly proved not
by calling many witnesses but by producing evidence
independently of those who assert the existence of that
custom.”

Note (2): Courts sometimes deem it necessary to call

chiefs who are versed in the customary law to give
evidence. See Lewis v Bankole [1908] NLR 83 (supra) Pg.
84-99; Apoesho v Awodiya [1964] NNLR.8.

The mere fact of being a customary court president does

not make one an expert in customary law especially since
customary courts are now a creation of statute. See
Edokpolor v Idiehen [1961] WBKR. 11.

2. Proof by the use of Books

31
 S.70 E.A. states that “in deciding questions of customary law
and custom…any book or manuscript recognised by as legal
authority by people indigenous to the locality in which such
law applies, are admissible.”

Note: The conditions which a book must comply with under

the section was laid down in the case of Adedibu v Adewoyin
[1951] 13 WACA 191:

(1) The book or manuscript must be part of the evidence

before the court.

(2) The book or manuscript must be shown to be

recognised by the indigenous people concerned as an
authoritative document stating one or more customs
accepted by them as binding upon them.

Note: (Difficulty in satisfying the above conditions has led to la

iberal application. See for example Adeseye v. Taiwo [1956] FS C
84 where the court to establish the custom in question used two
books not tendered in evidence.

See also Suberu u Sunmonu [1957] 2. FSC 33; Oyekan v. Adele

[1957] 1. NNLR. 872 at 888; Balogun v. Balogun [1920] 10 NLR
36 at 50.

3. Proof by the use of Assessors

Provisions are made in the various high court laws except
east, for the use of assessors.
An assessor is a person, usually an expert, in the subject
matter under consideration, who sits with the judge(s) and
assists him from his special knowledge.

Note (1): Assessor not considered a member of court

because he takesno part in the decision making process.

No to (2): Criticism against the use of assessors lies in the

fact that their opinion is given not in the open court but in
32
 the judge’s chambers thereby depriving parties opportunity
to challenge them.

Note following points as well:

(1) A party proving a custom must prove that it governs the

circumstances or situation under consideration.

(2) Where there is a custom and an exception one party may

prove the general and the other proves the exception.

A party who proves a general custom is not duty bound to prove

the exception. See Ademola v Tijani [1952] 12. WACA 87.

(4) Where both the general custom and exception are valid the
decision lies on the court as to which to apply.

See Adeniji v Adeniji [1972] 1 All NLR 298 at 305 - 306 court
held “the Idi-igi method of distribution of the estate of a deceased
person is an integral part of the Yoruba native law and custom;
(2) that since it is a universal method, it should be adopted
expect where there is a dispute among the descendants of the
estate as to the proportions in which such estate should be
divided; (3) where there is such a dispute the head of the family
is empowered to, and, should decide whether Ori-ojori ought in
the particular cases, to be adopted instead of Idi-igi and that such
a decision must prevail.” See also Danmole V Dawodu [1958[ 3.
FSC 46.

Where the party fails to prove the general custom and the other
party establishes an alternative, the alternative custom would be
applied.

(B) Proof Before Customary Courts

The Evidence Act does not apply to customary courts by virtue of

S. 256 (1), hence the provision under the Evidence Act relating to
establishment of customary law does not apply to them.
33
Establishment of customary law before these courts is therefore,
governed by customary law itself.

Proof of customary law before customary courts can be divided

into two:

1. Proof of customary law of the Area of Jurisdiction of

the court

Where the applicable customary law is that of the area of

jurisdiction of the court and the members of the court are
versed in that law, proof of that law is not necessary. See
Ababio II v. Nsemfo, [194] 12 WACA. 127, where WACA
states that, “the rule in Angu v Attah......... was intended to
apply to what may be described as British courts before
which it is sought to prove a particular custom. There is no
ground for extending the application to native courts of
which its members are versed in their own customary law
although there is nothing to prevent a party from calling
witnesses to prove an alleged custom, it is certainly not
obligatory upon it to require the custom to be proved
through witnesses.”

Note (1): The rule in Angu v Attah [1916] PC (1874 - 1928)

43 is that rules of customary law are to be proved by
evidence before the court.

Note (2): The rule in Ababio’s case is also applicable where

only one member of the court is versed in the customary
law. See Ehigie v Ehigie[1961] ANLR 871 .

Note (3): Contrary decision to the principle in Ababio’s case

has been given. See Edokpolor v Idiehen [1961] WBKR. 11
(supra) held that customary law should always be proved
before customary courts. See also Fijabi v. Odumola [1955]
NMLR 133.

Ehigie v Ehigie[1961] ANLR 871 (supra) -held the view of

Fatayi Williams J. that the ends of justice would be better
34
 served if customary law which has not been “so frequently
applied before the courts as to be well-established and
notorious” is proved before the courts.

Conclusion- Where the customary law is that of the area of

jurisdiction of the court and the court or at best one member
of the court is versed in that law proof of that customary law
is not necessary. Where the contrary is the case,
establishing it by calling witnesses becomes necessary.

(C) Judicial Notice of Customs

The notoriety of certain facts makes it unnecessary for them to

be proved in everyday life. Judicial notice is taken of them. The
Evidence Act provides for circumstances in which a custom may
be judicially noticed

(a) Judicial Notice before non-customary courts

Formally provided for under by S. 14(2) of the old E.A. “a custom

may be judicially noticed by the court if it had been acted upon
by a court of superior or co-ordinate jurisdiction in the same area
to an extent which justifies the court asked to apply it in
assuming that the persons or class or persons concerned in that
area look upon the same binding in relation to circumstances
similar to those under consideration.”

Arguments resulting from the above provision

The use of the word “MAY” denotes that it is still discretional upon
whether or not to take judicial notice of a custom even after it
has satisfied the conditions in S. 14(2) Evidence Act. See
Obilade’s Nigeria Legal System.

(2) The Supreme Court held in the case of Taiwo v.

Dosunmu[1965] ANLR 417 , that the phrase “in the same area”
means an area in which some grounds appear for presupposing

35
the custom to be in uniform.” Note in this respect that uniformity
of customs is different from mere similarity.

The court of superior or co-ordinate jurisdiction referred to in S.

14(2) Evidence Act must be one having jurisdiction in the
geographical area where it is contended that the custom applies.
For instance, the Magistrate court and High courts in a state have
jurisdiction throughout the state. Therefore the magistrate court
can rely on the High court’s decision of that state in taking
judicial notice of a custom.

(4) The question of the extent to which a custom is applied

before judicial notice can be taken of it was subject to some
disputation. The case of Angu v Attah (supra) had held that
frequent proofof a custom in the courts is necessary before a
custom can be judicially noticed. This was decided before the
enactment of the Evidence Act.

Since the enactment of the Act, however, some learned authors

have submitted that there is nothing in the Evidence Act requiring
frequent proof of a custom before it is judicially noticed.

Note however the case of Giwa v Erinmilokun [1961] 1 All NLR

294 at 295 which was decided after the enactment of
the Evidence Act yet still followed the position requiring frequent
proof. See also Larinde v Afiko [1940] 6 WACA 108; Osinowo v
Fagbenro [1954] 2 ANLR 3; Odufuye v. Fatoke 1977. 4 SC 11.

See Cole v Akinyele [1960] 5 FSC 84 where court relied on the

sole decision in Alake v Pratt without any other evidence and took
judicial notice of the custom. The court accepted to judicially
notice the custom that under Yoruba native law, legitimacy
depends on acknowledgment of paternity of the child born out of
wedlock by the father. “The court based its reason for doing this
on the fact that there was massive evidence in support of the
custom in the earlier case.”

Note the following: Supreme Court pronouncements on the issue.

36
(1) Olagbenmiro v. Ajagunbiade 111 [1990] 3 NWLR 37 held ”A
solitary instance of the application of customary law to the facts
of a particular case does not entitle that custom to be judicially
noticed. However, where one decision in a case establishing the
existence of a particular customary law satisfies the requirements
of S. 14(2) Evidence Act, that solitary decision may be judicially
noticed.”

Mohammed Bello, ON, had this to say in the same case:

“It appears to me there is no inconsistency in the judicial notice

based on S. 14(2) Evidence Act. The discretion to take judicial
notice of a custom under the subsection is upon condition that
the custom has been acted upon by a court in the same area to
an extent which justifies the court asked to apply it in assuming
that persons or class of persons concerned consider the same
binding. Consequently, unless a solitary instance of the
application of a custom satisfies the requirements of the
subsection that custom is not entitled to be judicially noticed.”

“It seems to be that as a general rule the insistence on the

custom being acted upon in several cases would be acceptable. In
m} view the operative consideration is that the members in the
samewould be more readily justified in assuming that if that
custom has been acted upon in several cases but I think there
are situations in which such a situation can be reached when the
custom has been upheld in one case. This in my view is where
the custom concerned has itself acquired a notoriety” per
Nnamani JSC.

(2) In the case of Oko v. Ntukidem [1993] NWLR, the Supreme

Court held that a single application of a custom is not enough to
justify it to be judicially noticed.

“It was neither shown by evidence nor judicial pronouncement

over a period of time that rivers are natural boundaries between
lands belonging to different communities. The trial judge to
37
support his findings cited no authority. The court may take
judicial notice of a custom when such has been established on
other occasions before courts. A solitary application of a custom
to the facts of a particular case is therefore not sufficient to
confer the requested notoriety on such a custom - per Will JSC at
pg. 135. This case settles the issue of the number of times the
custom must have been applied before it is judicially noticed.”

NOTE:

THE OLD EVIDENCE ACT WAS REPEALED IN 2011 AND S.

17 OF THE EVIDENCE ACT, 2011 provides that ““a custom
may be judicially noticed when it has been adjudicated upon
ONCE by a superior court of record.

Also Note The Following:

Judicial notice of customary law is an alternative method of

establishing customary law. The other method is proof by calling
evidence.

(2) Judicially noticed custom is a question of law while custom

proved by evidence is a question of fact.

Once a judicially noticed custom ceases to be valid and the

change in custom is proved, the court must cease to take judicial
notice of it.

See Salami v Salami [1959] WRNLR. 10; Danmole v. Dawodu

[1958] 3 FSC 46.

In the latter case, the Federal Supreme Court allowed evidence to

be adduced to show that the judicially noticed custom of Idi-Igi -
distribution of estate per stripes (succession) has ceased to be
the current custom and therefore been replaced by the Ori-ojori
(per capita).

Judicial Notice In Customary Or Area Courts

38
The provisions of the Evidence Act do not apply to customary
courts. Therefore,customary law governs judicial notice before a
customary court.

Where a customary court is versed in the customary law that

applies in its area of jurisdiction, the court is entitled to take
judicial notice of the custom. The court is deemed to know the
law and establishing the custom by calling evidence becomes
unnecessary.

4.5 Validity Of Customary Law

After the establishment of a rule of customary law in the court,

the next step is to determine if the custom is valid before it can
be applied.

The rules governing validity of customary law are contained in the

various High court laws and the Evidence Act.

See S. 26(1) HCL of Lagos State [2003; Cap. H3 as amended by

H/C (Amendment Law) 2012; S.20(1) HCL Cap. 61 Laws of
Eastern Nigeria; S. 13(l) HCL of Western Region and S. 18(3)
Evidence Act 2011.

Proviso to this section states:

“In the case of any custom relied upon in any judicial proceeding
it shall not be enforced as law if it is contrary to public policy and
is not in accordance with natural justice equity and good
conscience.”

See S. 26(1) HCL Lagos State, which provides that:

“The High Court shall observe and enforce the observance of

every customary law which is applicable and is not repugnant to
natural justice equity and good conscience or incompatible either
directly or by implication any law for the time being in force.”

39
The provision in the above section is similar to that contained in
the laws of the various States. Combining the provisions of these
statutes, the validity of a custom is determined by its ability to
overcome orpass three tests. If it passes the three tests then it is
declared valid and subsequently applied.

These three tests are:

i The Repugnant Test

ii the Incompatibility Test

iii. The Public Policy

The Repugnancy Test

Repugnant means contrary or contradictory to; offensive;

repulsive or arousing disgust.

Natural justice under the law has two technical meanings:

(1) The right to fair hearing (hear both sides -

audialterampatem).

(2) No man should be a judge in his own case (nemojudex in

causasua).

The term equity similarly has two meanings. In its broad or

popular sense, it is equivalent to natural justice or morality. See
Snells, Principles Of Equity, 27th Edition.

The technical meaning deals with the doctrines of equity.

In the case of Moses v Macfarland [1970] Burr. 1065 “natural

justice” was held to mean equity and natural law. Lord Mansfield
in that case, held that the words natural justice were here clearly
not used in their modern sense but synonymous with natural law
in the same way that the used word equity did not refer to

40
technical equity i.e. the Equity of the Chancery Court but to ins
naturale. In other words natural justice and equity in this passage
mean the same thing.

Therefore the phrase “repugnant, to natural justice equity and

good conscience” is not interpreted disjunctively i.e. the phrase is
not divided into its component parts. See Okonkwo v. Okagbue
[1994] 19 NWLR (Pt. 368) pg. 301 where it was held that equity
in its broad sense, as the repugnant doctrine was equivalent to
natural justice.

In the case of ESHUGBAYI ELEKO V THE OFFICER

ADMINISTERING THE GOVERNMENT OF NIGERIA[1931] AC 662
the word ‘barbarous’ was held to be synonymous with the
repugnant doctrine by Lord Atkin when he stated ... the court
cannot itself transform the barbarous custom into a milder one, if
itstill stands in its barbarous character, it must be rejected as
repugnant to natural justice, equity and good conscience.”

A similar decision was reached in Laoye v. Oyetunde [1944] AC

170 where Lord Wright expressed the view that the phrase was
intended to invalidate barbarous customs.

Note that the fact a customary law rule denies a person of a right
to which he would have been entitled under English law is not
sufficient to invalidate the rule. See Rufai v. Igbira Native Auth
[1957] NNLR 179;Ashogbon v Oduntan [1935] 12 NLR 7.

Here it was held that there was nothing repugnant in a rule that
rendered a family member liable to forfeiture of his share of
family land if he committed any serious form of misbehaviour or
misconduct such as adultery within the household or disrespect to
senior members.

In DANMOLE V DAWODU[1958] FSC 46, it was held by the trial

judge that the Idi-Igi custom on succession was repugnant to
natural justice, equity and good conscience. The judge felt that
the custom, which allows the property of the deceased to be
distributed among his children per, strips rather than per capita
41
was inconsistent with the modem idea of equality among the
children.

This was rejected by the Federal Supreme Court, stating “the

principles of natural justice, equity and good conscience
applicable in a country where polygamy is generally accepted
should not be readily equated with those applicable to a
community governed by the rule of monogamy.”

Therefore the decided cases that use the phrase is interpreted to

mean fair and just or conscionable. A customary law that is unfair
or unjust is repugnant to natural justice, equity and good
conscience.

1. Succession: The courts have refused to uphold rights of

succession to property where such is based on inhuman
or intolerable practice. Hence customs based on the
concept of slavery have been held to fail the test. In Re:
EffiongOkon Atta [ 1931 ] 10 NLR 615. The court held
that it was repugnant to natural justice, equity and good
conscience for the head of the house to inherit his former
slave’s estate under customary law.
See also Re: KwekuDamptey [1930] 1 WACA 12. In
Ogiamienv Ogiamien [1964] NNLR 24 R, the Supreme
Court upheld the established Benin custom of
primogeniture which allows the eldest son to inherit
thewhole of his father’s intestate estate to the exclusion
of the other children. The Supreme Court was of the view
that the custom implied that it is the responsibility of the
eldest son to look after the younger ones.
See also in Amachree v. Kallio [19141 2 NLR 108. It was
held that a customary law, which would enable a
community to claim sole fishing rights in open tidal water
to the detriment of neighbouring communities, was
repugnant.

Also in Nzekwu&Ors v. Nzekwu&Ors [1989] 2 NWLR (Pt.

104) pg. 737 the Supreme Court held that an Onitsha
custom which postulates that a person has the right to
42
 alienate property of a deceased person in the lifetime of
his widow is barbarous and uncivilised and should be
regarded as repugnant to natural justice, equity and good
conscience.

2. Custody Of Infants

In cases pertaining to custody of infants, the guiding principle is

the welfare of the child. The courts have persistently refused to
recognise or countenance any trading or trafficking in children
under the cloak OF customary law.

In the case of Loromeka u Makegbo [ 1957] B. WALR 306, a

custom which required the widow of a man to hand over her
children and the dowry paid on her to her deceased husband’s
brother if she refuses a levirate marriage was held to be
repugnant.

InEdet v Essien [ 1932] 11 NLR 47.Essien had paid dowry on

Inyang while she was still a child ... however, another man Edet,
married Inyang after obtaining her parents’ consent. Essien then
laid claim to the two children of the unionbetween Edet and
Inyangon the ground that until the dowry was refunded to him
the children belonged to him. His claim actually represented the
position of customary law on that issue. The court held that a
native law and custom, which permitted such a state of affairs,
must be overruled as being repugnant to natural justice, equity
and good conscience.

In Mariyama v SadikuEjo [1961] NRNLR 81, an Igbira customary

law rule which provided that a child born within 10 months of a
divorce belonged to the former husband was held to be
repugnant.

In the case of Okonkwo v. Okagbue (supra), the appellants were

the children of a man (Okonkwo) who died in 1931. The deceased
had two sisters who were the 1st and 2nd respondents. Both
were married but childless. At about 1968, the respondents
married the 3rd respondent for and on behalf of their late
43
brother. As a result of this marriage the said wife had six children
who all bore the name of late Okonkwo, paraded themselves as
his children. The respondents contended that they contracted the
marriage in accordance with Onitsha native law. On the issue
presented on appeal to the Supreme Court it was held inter alia
that a custom that allows a woman to be married to a deceased
man as in the instant case cannot be said to be in good
conscience.

More so, because a dead man cannot give his consent, nor could
he consummate with any person purported to have been married
to him. Marriage being a union of two living persons to be
meaningful must have the husband physically in existence so that
the marriage can be consummated. What at best happened in the
case was a union between a woman and two men. The custom
was held to be repugnant to natural justice, equity and good
conscience and contrary to the public policy.

Note that the court cannot modify a repugnant customary law. It

must be applied as it is presented to the court or rejected in tote.
If it is modified then the modified version cannot be said to be
customary law because it will lack the necessary assent of the
community.

See Lord Atkin’s dictum in EsugbayiEleko v. Government Of

Nigeria (supra) when he said “the court cannot itself transform a
barbarous custom to a modem one. If it still stands in its
barbarous character it must be rejected as repugnant to natural
justice, equity and good conscience”.

THE TEST OF PUBLIC POLICY

S. 18(3) E.A.

What then is public policy? The term public policy may not have
an absolutely fixed definition because opinions differ as to its
meaning and content. In the case Richardson u Emllish [1824] 2
130 ER 294being 229 at 252, it was said that “public policy is an
unruly horse and when once you get astride it you never know
44
where it will carry you.” This was repeated in the case of Cole v
Akinyele (supra).

In the case of Okonkwo v Okague (supra), it was held that public

policy means the ideas which, for the time being, prevail in a
community as to the condition necessary to ensure its welfare, It
went on to hold that public policy is not fixed and stable. It must
therefore fluctuate with the circumstances of the time. Thus new
heads of public policy come into being and old heads undergo
modification.

In the case of Wilson v Carnley [1908] I KB 729, a promise of

marriage made by a man who, to the knowledge of the promisee
was at the time of making of the promise married was held to be
void as being against public policy.

In Cole v Akinyele (supra), the rule of legitimisation by

acknowledgment of paternity was held invalid on the ground of
public policy. The judge quoting the dictum in Re: Adadevor[
1951] 13 WACA 304, that a rule of customary law which would
encourage promiscuous intercourse is contrary to public policy.

THE TEST OF INCOMPATIBILITY

See S.26(1) HCL of Lagos for illustration. “The High court shall
observe and enforce the observance of every customary law
which is applicable and is not repugnant to natural justice, equity
and good conscience or incompatible either directly or by
implication with any law for the time being in force.”

Any law used in that section means any local or Nigeria

legislation. It does not cover English law (Common law, Equity
and SOGA). This is because the two systems of law are almost
always contradictory and if the validity of customary law is based
on its compatibility to English law, hardly would any local customs
be applied. See Malomo v. Olusola [1954] 21 NLR 1. Also Rotibi
v. Savage [1944] 17 NLR 77.

45
A rule of customary law is incompatible with a local statute or
subsidiary legislation if the local enactment is manifestly intended
to govern that subject matter to the exclusion of customary law.
See Salau v Aderibigbe[ 1963] WRNLR 80.

Where the manifest intention as indicated by express terms is to

modify or abolish a customary law rule it gives rise to a case of
direct incompatibility. See Abolition Of Osu Caste System Law
E.R. Laws Cap. 1996.

Where there is no inconsistency between the co-existence of a

customarylaw rule and a local enactment, then there is no
incompatibility. But where notwithstanding the fact that a local
enactment does not expressly abolish or modify a customary law
rule, their co-existence is inconsistence with the manifest object
of the local enactment, then the customary law would be invalid.

46
CHAPTERS NIGERIAN LEGISLATION

5.1 Introduction

Nigerian legislation is made up of statutes and subsidiary legislation.

Statute: A statute is an enactment by the legislature that is, that arm of

government responsible for making laws.

Subsidiary legislation: These are laws enacted in exercise of powers given by

a statute. e.g. Legal Practitioners’ (Remuneration for Legal Document And
Other Land Matters) Order, 1991, which was made in exercise of power
conferred on the legal Practitioners’ Remuneration Committee by section 15
(3) of the Legal Practitioners’ Act, 1975.

Subsidiary legislature is important because it saves time and trouble of

going back to its legislative house when there is need for change.

Note that English subsidiary legislation has been received into Nigeria.

5.2 Types Of Nigerian Statutes

(a) Ordinances:

Between 1914 and 1954, Nigeria was one entity under a unitary
government. The Statutes enacted by the central legislature before 15th
October, 1954 were termed ordinances. Also as a result of the amalgamation
of the country in 1914, the legal system of the two entities were merged. In
1916, all the pre-enacting statutes of these units were revised and pre-
enacted as ordinances. Hence, ordinances were those statutes passed or
deemed to be passed by the central legislature before October, 1954 when
Nigeria became a federation.

(b) Act

47
An Act is an enactment made or deemed to be made by the federal
legislature before January 16, 1966 or by the National Assembly between
October 1979 and December 1983, and May 1999 to date.

Also, where there is an enactment which takes effect under the constitution
as an Act of the National Assembly, such will be deemed to be an Act. Prior

to independence, the enactment of the federal legislature were designated

Ordinances but acquired the title of Acts upon independence. All Acts in force
in Nigeria by 31st January, 1990 are now published in volumes by the Law
Reform Commission. The equivalent of Acts at state Level (i.e laws made by
state House of Assembly or deemed to be so made) are referred to as Laws.

(c) Decrees

A Decree is an enactment made by the Federal Military Government. It is

enacted by the highest military body e.g the Supreme Military Council or the
Armed Forces Ruling Council (AFRC). Under a military regime, Decrees are
the most superior law of the land.

Where there is any unsuspended part of the Constitution, such part that is in
operation apply only by virtue of Decrees. See Constitution (Suspension and
modification) Decree 1966 (No 1) of 1966.

Lakanmi&Anor v A. G. West S.C. 58/59 of 4/4/70 [1971] I U.I.L.R 21 . In

the case, by virtue of the public officers and other persons, (investigation of
assets) Edict No. 5, 1967, the Military Government of Western Region,
condemned the acquisition of certain properties by certain people and
forfeited their asset to the government. When challenged by the country, the
Federal Military Government backed up the measure with the Forfeiture of
Assets etc (Validation) Decree No 45 of 1968. The case went to the Supreme
Court and it concluded that the legislature went beyond legislative capacity,
that they were in fact legislative judgment and therefore null and void.

The Court further held that “we have come to the conclusion that the decree
is nothing short of legislative judgment and exercise of legislative power. It
is in our view ultra vires and invalid.”

Consequently, the Federal Military Government immediately enacted the

Federal Military Government (Supremacy and Enforcement of Powers)
Decree No 28 of 1970 by which it set aside the Supreme Court judgment by
providing that any decision whether made before or after the
commencement of the Decree by any court of law.......... which has
purported to declare the invalidity of any decree or any edict (in so far as
the provisions of the edict are not inconsistent with the provisions of a
48
Decree) or the incompetence of any government in the federation to make
the same is or shall be null and void and of no effect whatsoever as from the
date of the making of the Decree.

See also Adamolekun v Council Of The University Of Ibadan [1968]

NMLR253; Adejumo v. MG.L.S [1972] I ALL NLR 189; A.G Ondo State v AG
Ekiti State [2001] 17 NWLR (Pt 743) 706.

(d) Edicts

An Edict is an enactment made by a state military government. Where there

is any inconsistency between an edict and a law made by parliament or
Federal Military Government, the edict is void to the extent of its
inconsistency.

5.3 Some other aspects of Nigerian Legislation

Note the use of the following

(i) Principal legislation

A Statute is referred to as the principal law in a statute amending it eg Legal

Practitioners’ (Amendment) Decree 1992 which amended the Legal
Practitioners’ Act Cap 207 LFN. The Cap 207 is the principal law.

Also, Legal Education (Consolidation etc) (Amendment) Decree 1992 which

amended the Legal Education (Consolidation, etc) Act, Cap.206 LFN. The Cap
206 is the principal law.

(ii) Enabling law or enabling legislation

A statute under which a subsidiary legislation is made is referred to
lawas an enabling legislation eg the Legal Practitioners’ Act, 1975
vis a visthe Legal Practitioners’ (Remuneration for legal
documentation and other land matters) Order, 1991.

5.4 The Constitution as a part of Nigerian Legislation

The Constitution is a part of Nigerian Legislation because it has all the

makings and trimmings of legislation and also because it is the source of the
existence and power of the various organs of government. Where there is
any inconsistency between the constitution and any action purported to be
done as a result of power conferred under any such law, such would be void
to the extent of its inconsistency with the constitution.
49
See generally:

1 Section 1 1999 Constitution.

2 Uzodima v. C.O.P [1982] 1 N CR 27- Where the Supreme Court held

that any provision which forbids lawyers from representing an accused in a
court of law is null and void being inconsistent with the constitution.

The court was referring to S.28 of the Area Court Edict, 1967 and S. 390 of
the Criminal Procedure Code, which provides inter alia that legal
practitioners have no right of audience in Area Courts. It was held that these
provisions were inconsistent with S.36 (6) (c) of the 1979 Constitution which
gives every person a right to represent himself or by the counsel of his own
choice.

3 Momoh v Senate of The National Assembly [1981] 1 NCR 21.

4 AG Ondo State v AG Federation & 35 ORS [2002] 6 SC (Pt. I ) 1 -

which declared some aspects of the Corrupt practices and Other Related
Offences Act, 2000 inconsistent with the 1999 Constitution.

5.5 Nature Of Legislation

Legislation is politically the most revolutionary and progressive as well as

most radical source of law dealing with moral, economic and social issues,
ills and ailments at all stages and levels of the society. Nigerian legislation
has been used for the above purpose. For example,

(a) The Trade Disputes Decree, 1976 was passed when strikes by
employees of labour became rife because of the wealth brought about by the
oil boom era in Nigeria.

The Robbery and Firearms (Special Provisions) Act, 1974, which was
promulgated to deal with high spate and problem of armed robbery which
became rife after the cessation of the Nigerian civil war.

(c) Exchange Control (Anti Sabotage) Decree, 1984 which had to be

passed to deal with smuggling of currencies into and out of the country,
such acts having caused Nigerian economic hardship.

(d) Corrupt Practices And other Related Offences Act, 2000 which was
passed to checkmate corruption, which is regarded as the bane of present
day Nigeria.

50
It is therefore obvious that legislation is the most important instrument of
legal development.It affects all other sources of law as it can alter or amend
their content.

Also, local legislation mirrors the aspirations of society. Using the Eastern
Region as an example, there was a system called the Osu caste system. The
repugnancy of that system was shown in the enactment of law against it.

Trial by ordeal is another example by SS 207-211 Criminal Code Cap. 4:

LFN. “Trial by ordeal of sasswood, esere-beem or other poison, boiling oil
fire, immersion in water or exposure to checks of crocodiles or other wild
animals or by any ordeal which is likely to result in the death of or injury to
any party to the proceeding is unlawful.” This shows the aspirations of the
society to move to a more civilized and less barbarous system of
administering justice.

5.6 Canons Of Interpretation Of Statutes

Statutory Interpretation is the process by which the courts seek to ascertain

the meaning of legislation, through the medium of the authoritative forms in
which it is expressed.

The proper construction to be given to the provisions of a statute is

invariably the burden of the courts and this duty is discharged through
statutory interpretation. The primary duty of the court is to arrive at the true
intention of the legislature based on the letters of the statute which are
merely the external manifestations of the former.

As a general rule, courts cannot under the guise of reformulating the

intention of the law maker, tamper with the law as enacted or impose its
own conceived version of what the intention should be. See Okumagba v
Egbe[ 1965]1 All NLR 62.

In order to resolve an ambiguity in a statute, the courts are guided by some

rules. These rules are guides rather than strict immutable rules. The rules of
interpretation include the following:

(a) Literal Rule

This is that rule of interpretation that demands that the words used in a
statute must be interpreted according to their literal or plain meaning.

In The Sussex Peerage case, Tridal CJ said: “The only rule for the
construction of Acts of Parliament which passed the Act if the words of the
statutes are in themselves precise and unambiguous, then no more can be
51
necessary than to expand those words in their natural and ordinary sense.
The words themselves alone do in such case best declare the intention of the
law giver.”

The literal rule was applied in the following cases.

1. Adegbenro v Akintola [ 1962] 1 All NLR 465;

2. Okumagba v Egbe[ 1965]1 All NLR 62;

3. Ojokolobo v Alamu [1987] 3 NWLR (Pt. 61) 377; AG Federation v.

Ijewere 4 NWIR (Pt. 37) 659;

4. Garba v FC.SC [1988] 1 NWLR (Pt. 71) 449;

5. Praying Band Of Lands v Udokwu [1991] 3 N.W.L.R (Pt. 182) 716.

Note that where the words used are of a trade, profession or business or
technical nature such are construed in the light of the particular trade,
profession or business. See Bronik Motors Ltd v. Wema Bank Ltd [1983] 1
SCNLR 296.

A Strict application of this rule has been known to sometimes work hardship.
See R v Bangaza (1962) 5. F. S. C1; Akintola v Adegbenro [1962] 1 ALL NLR
465.

Where words have been judicially defined, their ordinary meaning will give
way to their legally or judicially defined meaning.

(b) Golden Rule:

This modifies the literal rule and was laid down in Becke v Smith [ 1836] 2
M& W 191 OR (1836)150 ER 724. Per Parke B “It is a very useful rule in the
construction of a statute to adhere to the ordinary meaning of the word used
and to the grammatical construction, unless it is at variance with the
intention of the legislature to be collected from the statute itself, or leads to
any manifest absurdity or repugnance in which case, the language may be
varied or modified so as to avoid such inconvenience but no further.”

In applying the golden rule, words of a statute are ignored or those not
there are read into it.

See Generally:
52
1. R. v. Eze (supra)

2. R. v Princewell [1963] 2 All NLR 31

3. Adamolekun v Council Of University OfIbadan [1967] 1 All NLR 213

4. PDP v 1NEC [1999] 7 SCNJ 297 at 374

Note: The golden rule can only be used when applying the literal rule will
create an absurdity.

(c) The Mischief Rule.

Also known as the rule in Heydon’s Case. In the SUssex Peerage case, it was
held as follows “If any doubt arises from the terms employed by the
legislature, it has always been held a safe means of collecting the intention
to call in aid the ground and cause of making the statute and to have
recourse to the preamble and the mischief which they intend to redress.

The courts are guided by the following when applying the mischief rule:

1. What was the law before the statute was passed?

2. What was the mischief for which the law did not provide?

3. What remedy did the legislature resolve and appoint to cure the
mischief?

4. What was the true reason for the remedy?

The Court is thereafter to interpret the ambiguous section in such a way as

tosuppress the mischief and advance the remedy.

See Generally: Gorris v. Scot [1874] LR 9 Ex 125; Balogun v Salami (1963)

1 All NLR 129; Akerele v IGP [1955] 21NLR 37;Ifezue v. Mbadugha (1984) 1
SCNLR 427; Savannah Bank Of Nig Ltd & Anor v. Ajilo And Ano. [1989] 1
NWLR (Pt. 97 )305; Emelogu v State [1988] 2 NWLR (Pt. 78) 524; Wilson v.
AG Bendel State [1985] 1 NWLR (Pt. 17) 572.

(d) Ejusdem Generis Rule

Where particular words are followed by the general words are interpreted
restrictively to have a meaning that is of the same kind or genus as the
preceding ones already particularized.

53
See Generally

1. Nasr v Bouari [1969] 1 All NLR 37;

2. Shell Petroleum Dev. Co Nig. Ltd v FBIR. [1996] 8 NWLR 256;

3. AG Federation v Ijewere [1986] 4 NWLR (Pt. 37) 659;

4. Board Of Customs And Excise v. Viale [1970] 2 All NLR 53;

5. Jammal v A.C.B. [1973] 11 S.C.77

98

Note: There must be a distinct genus before the rule can be invoked.

(e) The Purposive Approach:

This is a general and more liberal approach to statutory interpretation. It is a

hybrid, the golden rule and the mischief rule. It was formulated in Seaford
Court Estates Ltd v Asher [1949] 2K.B. 481; and followed in Magor And St.
Mellons Rural District Council v. Newport Corporation [ 195012 All ER 1226
at 1236.

The Purposive Approach takes into account the words of the legislation
according to their ordinary meeting, the context of the words used, the
importance of the subject matter, the scope and purpose of legislation and
the background of the legislation.

See Generally

1. Pepper (Inspector Of Taxes) v. Hart [1993] 1 AU ER 42 at 50

2. PDP v 1NEC [1999] 7 SCNJ 297

3. Buchanan And Co Ltd v. Babco Forwarding & Shipping (UK) [ 1977] 2

WLR 107

4. Braithwaite v GDM [1998] 7 NWLR (Pt. 557) 307

5. V.C.R.A.C Crabbe: The Doctrine of Separation of Powers and the

Purposive Approach to the Interpretation of Statutes - (Nigerian Institute of
Advanced Legal Studies Lecture Series, 2000).
54
CHAPTER 6 JUDICIAL PRECEDENT (CASE LAW)

6.1 Introduction

Judicial precedent constitutes one of the sources of Nigerian law. Judicial

precedent also means case law and it refers to that body of principles an
rules of law which over the years have been formulated or pronounced upon
by the courts as governing specific legal situations. This supports the fact
that judges do make law.

“Judges do more at times apply existing rules and sometimes they create i
entirety new principles. Courts then have the power of developing the new a
the same time that they administer it!” Salmon on Jurisprudence

When any civil or criminal matter is heard, the judge’s decision would consist
of many aspects. He decides what is to happen to the plaintiff and defendant
he gives his reasons for his findings of fact, and he will give his reasons for
an, legal ruling of the issues involved e.g. Negligence. Those reasons are
precedent for other courts of equal jurisdiction to follow in the interest of
consistency and for the inferior courts to follow as matter of obligation.

Judicial precedent is therefore the principle of law on which a judicial

decision is based. It is the ratio decidendi. That is, the reason for the
decision. Any other pronouncement is obiter dictum and is not binding. E.g.,
the judge suggests that he would have decided the case in the same way
even if the facts had been somewhat different.

Judicial precedent is the material facts and decision of the earlier court.
Judicial precedent can this be defined as that principle of law that states that
decisions of higher courts of the land are binding on the lower courts in the
land. Also decisions of courts of coordinate jurisdiction are for all intents and
purposes binding as between those courts. See Global Transport Oceanico S.
a. & Anor v Free Enterprises Nig. Ltd [2001] 2 S.C. 154; Osakwe V. Federal
College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1 at 34.

The part of the judgment which is binding on lower courts and courts of
coordinate jurisdiction is the ratio decidendi of the case. This is the principle
55
of law on which a judicial decision is based. The part of the judgment called
obiter dictum is not precedent. Obiter dictum is any other pronouncement on
law made in the course of a judgment. See Bamgboye v University OfIlorin
[1991] & N WLR (Pt. 207) 1 for distinction between ratio decidendi and
obiter dictum. See also Agbai v Okogbue [1991] 9/10 SCNJ 49; Oshodi v
Eyifunmi [2000] 7 S.C. (Pt. 11) 145.

Note: that a settled hierarchy of courts and an efficient law reporting system
is a pre-requisite for the effective working of the doctrine. See Royal
Exchange Assurance v Aswani Textiles Ind Ltd. [1991] 12 NWLR (Pt. 176)
636 on operation of the doctrine.

The general rule under the doctrine of stare decisis is that a lower court is
bound to follow the decisions of a higher court in the hierarchy except:

(a) Where the decision of the higher court has been overruled; or

(b) Where the decision of the higher court is in conflictwith the decision of
another court which is above that of higher court in the hierarchy: or

(c) Where there are two conflicting decisions of a higher court or of courts
of equal standing the lower courts are entitled to choose which to follow.

Note:

The doctrine of stare decisis is limited to the extent in which a court is able
to distinguish the case before it from the case, which it is being prompted to
follow by precedent. See Reed v Lyons & Co (1947) A.C. 1567.

A lower court is bound to follow a decision of a higher court even if the

decision of the higher court was wrongly decided See N.E.P.A. v Onah
[1997] I.S.C.N.J. 220; Emerah& Sons Ltd v. AG. Plateau State (1990) 4
NWLR (Pt. 146) 788.;OGBORIEFON V OGBORIEFON CA/I/218/03 delivered on
2nd day of March, 2011

6.2 TYPES OF PRECEDENT

(a) Binding precedent

Binding precedent is when a court in which a precedent is being advanced is

bound to follow it. That is, the judge is under an obligation to apply the ratio
decidendi of the case before him unless he is able to distinguish such facts
from those of the case at hand.

56
(b) Persuasive precedent

Precedent is said to be persuasive when it is within the powers of the lower

court in which it is being urged to choose to follow or depart from a decision.

6.3 DETERMINING THE RATIO DECIDENDI OF A CASE

The following points are considered in determining the ratio decidendi of a

case.

The reasons for the decision as stated by the judge

The principle of law stated by the judge as that on which the decision is
based.

(c) The actual decision in relation to material facts See Agbai v Okogbue
[1991] 9/10 SCNJ 49 (Supra).

6.4 ADVANTAGES OF THE DOCTRINE OF STARE DECISIS

See Generally- Eperokun v. University Of Lagos (1986) 4 NWLR (Pt. 34) 162
at 193 per Oputa J. S.C. on the advantages of the doctrine of stare decisis.
Other points include.

(a) The doctrine frees the law from arbitrariness

(b) It enables the court to maintain consistency, certainty am scientific

development of the law. This is because if each new case is decided without
any consideration of prior cases, law would loose its scientific characteristic
as the possibility of prediction, which is the basis of science, would
disappear.

(c) It saves the judges time and helps to obtain justice

(d) It makes it possible to make logical conclusions on the current position

of the law.

(e) It places a sense of obligation on the inferior courts to follow the

decisions of the superior courts thereby ensuring uniformity of standards.
The uniformity of standards helps to maintain respect for the legal
profession.

57
(f) It enables the legal expert to exclude the layman from his field since it is
too technical for the layman to approach.

(g) It enables lawyers to find the law and advise their clients accordingly.

(h) It helps to keep public confidence in the judiciary since they know that
like cases would be decided alike.

6.5 DISADVANTAGES OF STARE DECISIS

(a) It helps to perpetuate a bad decision.

(b) Where the law reporting system is defective, the application of the
doctrine also becomes defective.

(c) There is no guarantee that all relevant authorities have been

exhausted in arriving at a decision

(d) It shows that judges do make laws. This is the responsibility of the
legislature.

(e) The doctrine operates only to the extent that a judge is not able to
distinguish the case before him from the earlier precedent that he is being
asked to follow.

6.6 Res Judicata

A judgment being delivered consists of a statement of the facts, a statement

of the issue or issues to be determined, a discussion of relevant principles
and the actual judgement, decision or order of the court.

The last aspect is binding on the parties to the case only. It is not binding in
subsequent cases between other parties. As between the parties to the case,
the subject matter is Res Judicata i.e. finally decided. It is a settled issue
between them which cannot be litigated between them in any other court.

6.7 Differences Between Res Judicata And Stare Decisis

(a) Res judicata normally binds only the parties and their successors or
privies whereas stare decisis binds everyone including those not before the
courts in other cases.

(b) Res Judicata applies mainly to matters of fact while stare decisis
applies to points of law.

58
(c) Res Judicata takes effect after the time allowed for appeal has lapsed
whereas stare decisis takes effect immediately the judgement is delivered.

d. Res Judicata applies to all courts while stare decisis applies only to the
higher courts established to apply adjective common law.

Courts To Which The Doctrine Of Judicial Precedent do not apply

The doctrine being of common law origin operates only in courts, which
apply adjectival common law. The customary court laws of the various states
empower customary courts to administer customary law in so far as they are
not repugnant to natural justice, equity and good conscience nor
incompatible either directly or by implication with any written law for the
time being in force. Therefore, the doctrine of judicial precedent, which is of
common law origin, is inapplicable to Customary Courts, Area Courts and
Sharia Courts of Appeal. The Sharia Court of Appeal is empowered to
administer Muslim law of the Maliki School as customarily interpreted at the
place where the trial at first instance took place.

See Olalekan v Commissioner Of Police (1961) NMLR 215- where the

Supreme Court held that the absence of any mention of common law as one
of the applicable laws in the customary courts of Western Nigeria excludes
its application in the customary courts

See also Ogo v Ogo1964 NMLR 117 - where it was held that the Eastern
Nigeria customary courts are not bound and expected to observe strict
common law rules of pleading practice

6.8 The Doctrine Of Judicial Precedent And The Hierarchy Of Courts

(a) The Supreme Court of Nigeria is the highest court of the land. It
stands at the apex of the Nigerian Legal System. The Court of Appeal follows
it in line. The Supreme Court’s position is similar to the English House of
Lords’ position in the English hierarchy of courts.

The decisions of the Supreme Court and the Court of Appeal are binding on
all the other courts to which the doctrine of judicial precedent applies.

(c) There is no complete separate set of Federal courts. Federal laws

establish federal courts but courts established by States laws are given
jurisdiction over federal matters by federal laws.

104

59
(d) The High Courts in each state are courts of coordinate jurisdiction.
Their decisions are not binding on each other whether exercising Federal or
State jurisdiction.

(e) Where the High Court of a state is exercising Federal jurisdiction, its
decision is binding on the Magistrate Court of that state and on the
Magistrate Courts of other states where such courts are exercising federal
jurisdiction.

All the magistrate courts of a state are courts of co-ordinate jurisdiction.

Also the magistrate court of one state and the magistrate court of another
state are of co-ordinate jurisdiction. Therefore, their decisions are not
binding on each other but only constitute persuasive authority.

Where a decision of a higher court is given per incuriam, a lower court will
still be bound to follow such. See Ossom v Ossom (1993) NWLR 678, where
it was held that a lower court may depart from its previous decision given
per incuriam, but that it cannot decline to be bound by decisions of a higher
court even if those decisions were reached per incuriam.

The Supreme Court forms part of the hierarchy of federal courts with respect
to federal matters and part of the hierarchy of state courts with respect to
state matters.

6.8.1 The Supreme Court Of Nigeria

As the Court at the apex of the Nigeria hierarchy of courts, the decisions of
the Supreme Court binds all other courts to which the doctrine of judicial
precedent applies. The court occupies the position of Judicial Committee of
the Privy Council before the abolition of the later in 1963. The Supreme
Court would normally treat its previous decisions with greatest respect but it
should depart from such decisions where justice demands. Therefore
previous decisions of the court are not absolutely binding on it. See Johnson
v Lawanson (1971) 1 All NLR 56-where the supreme court overruled the
privy council’s decisions in Maurice Goualin v Aminu.

(b) Instances when the Supreme Court can overrule itself:

The Supreme Court can depart from its previous decisions:

(i) Where the judgment is obtained by fraud or deceit either in the court

or of one or more of the parties misleads the court; (ii) Where the
judgement is a nullity;

60
(iii) When it is obvious that the court was misled into giving judgment under
a mistaken belief that the parties consented to it;

(iv)Where the court is of the opinion that it is in the interest of justice. See
Generally

1. Aqua Limited v. Ondo State Sports Council (1988) 10-11 SCNJ 26.

2. Oduola v Coker (1981) 5 S.C. 197.

3. Bucknor-Maclean v Inlaks (1980) 8-11 SC 1.

4. Shell B.P v. Jammal Engineering (Nigeria) Limited (1974) 1 All NLR

542.

5. Owumi v. PZ Nigeria Ltd (1974) 1 All NLR (Pt. 11) 107.

6. Adegoke Motors Ltd v Adesanya (1989) 5 SCNJ 80.

7. Igwe v. Kalu (2002) 7 SC (Pt 11) 236 at 244.

8. Abu vOdugbo (2001) 7 SC (Pt. 1) 168.

9. Oko v. Oko 1974 3 SC.

10. Idehen v. Idehen (1991) 6 NWLR (Pt 198) 382.

The position of the Supreme Court is analogous to that of the English House
of Lords. The House of Lords was formerly bound by its previous decisions
until the passing of the Practice Direction on the 26" of July 1966 - The
direction provides.

“Their Lordship regards the use ofprecedent as an indispensable foundation

upon which to decide what is the law and its application to individual cases.
It provides at least some degree of certainty upon which individuals can rely
in the conduct of their affairs as well as the basis for orderly development of
legal rules. Their Lordships nevertheless recognise that too rigid adherence
to precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose therefore, to
modify their present practice and while treating former decisions of this
court as normally binding to depart from a previous decision when it appears
right to do so.”

61
6.8.2 The Court Of Appeal

The Court of Appeal is next in line to the Supreme Court and it is bound by
Supreme Court’s decisions. The Nigerian Court of Appeal stands in a position
analogous to the English Court of Appeal in the English hierarchy of courts.
The Nigerian Court of Appeal follows the position of the English Court of
Appeal in the treatment of its previous decisions. The English Court of
Appeal (civil divisions) is bound by its own previous decisions subject to
three exceptions stated in Young v. Bristol Aeroplane Co. 1944 KB 178.

These exceptions are:

(a) The court is bound to refuse to follow a decision of its own, which
though not expressly overruled, cannot in its own opinion, stand with a
decision of the House of Lords.

(b) The court is entitled and bound to decide which to follow of two
conflicting decisions;

(c) The court is not bound to follow a decision of its own if it was satisfied
that the decision was given pre incuriam.

In considering whether these exceptions are exhaustive, the Court of Appeal

in University Of Lagos v. Olawoye appeal no FC/L/6/81, recited the
statement of Lord Cozen-Hardy M.R. in Velasquez Ltd v Inland Revenue
Commissioners (1914) 3 K.B. 458 as follows:

“When there has been a decision of this court upon a question of principle, it
is not right for this Court, whatever its own views may be, to depart from
the decision. There would otherwise be no finality in the law. If it is
contended that the decision is wrong, then the proper course is to go to the
ultimate tribunals…who have powers to settle the law, and hold that the
decision, which is binding upon us is not good law.”

This view is retrogressive, as great term would be incurred ifthe courts have
to wait for a final settlement by an ultimate tribunal in all cases.

However, the three exceptions stated in the Young’s Case are applicable to
the Nigerian Court of Appeal in the determination of civil cases by virtue of
the decision of the West African Court of Appeal is Osumanu v Seidu (1949)
12 WACA 437.

In criminal matters, the position of the Court of Appeal with regard to the
doctrine of judicial precedent is that of the English Court of Appeal as stated
in R v. Taylor (1950) 2 K.B. 368 that the English Court of Appeal is not
62
bound by its own previous decision but the court is very reluctant to depart
from them.

This position has been adopted as part of our law in Nigeria through the
decision in Motayo v Commissioner OfPolice 14 WACA 114, where it was held
that”this court will adopt in criminal matters the principle enunciated in the
court of criminal appeal in the case of R v. Taylor (1950) 2 K.B. 368 and is
not invariably bound by its previous decisions.”

Note: The Court of Appeal is bound by the decisions of the Judicial

Committee of the Privy Council given before it ceased to be part of the
Nigerian hierarchy of courts. The Court of Appeal would treat previous
decisions of the Federal Supreme Court and the West African Court of Appeal
as its own previous decisions since they occupied equal position in the
hierarchy of courts when those courts formed part of the Nigerian hierarchy
of courts.

Note:: When the Court of Appeal is confronted by two conflicting decisions of

the Supreme Court, it could either.

(a) Choose the later decision as it would be seen to have impliedly

overruled the earlier decision; or

(b) It may choose any of them.

(c) May state a case to the Supreme Court.

However, on the authority of Osakwe V. FCE (Supra) it is the latter decision

that the Court of Appeal must follow.

6.8.3 The Federal And State High Courts

Apart from the differences in their respective jurisdiction, the Federal High
Court and the State High Court are very similar and generally exhibit the
same attitude to the doctrine of precedent.

They are strictly bound by the decisions of the Court of Appeal and the
Supreme Court. See A. G Ogun State V Egenti (1986) 3 NWLR 256; Atolagbe
v Awuni (1997) 9 NWLR 536.

63
With respect to state matters (matters within the legislative competence of a
state), the High Court of a State does not form part of the hierarchy of
courts for any other state. This is because as in other federations, a state is
regarded as a foreign country in relation to another for purposes of the
doctrine of precedence. Therefore, decisions of the high Court of a state
given in the exercise of state jurisdiction are not binding on any court in
another state. See Olawoyin v AG Northern Region (1960) NRWLR 63 where
it was held that a judge of the High court is not bound by the decision of
other courts of co-ordinate jurisdiction.

In exercise of federal jurisdiction the High Court of one state binds the
magistrate and district courts of other states.

A High Court judge is not bound by his previous decisions nor is he bound by
a decision of another judge of the court. When two or more judges
constitute the Northern Nigeria High Court sitting as a court of appeal, it is
equivalent to the divisional court of the High Court of England such divisional
court whether exercising civil or criminal jurisdiction adopts the principle in
Young v Bristol Aeroplane (Supra). Accordingly High Court in the North
sitting as a court of appeal and constituted by two or more judges is bound
by its previous decision subject to the exceptions in Young v Bristol
Aeroplane (Supra).

The high court is bound by decisions of the West African Court of Appeal and
the Federal Supreme Court given before their abolition. These courts were
equivalents of the present Court of Appeal. Also the High Courts are bound
by the decisions of the Judicial Committee of the Privy Council given when
that court formed part of the Nigerian hierarchy of courts.

6.8.4 Magistrates Courts And District Courts

These being inferior courts of record are bound by the decisions of superior
courts. Magistrate courts are not bound by their own previous decisions nor
are they bound by decisions of other magistrate courts whether or not in the
same state. See generally Board Of Customs & Excise v Bolarinwa (1968)
NMLR 350.

6.8.5 Customary Courts /Area Courts

They are not concerned with the doctrine of precedence as these courts are
presided over by laymen, not sufficiently knowledgeable in the general law.
See Osu v. Igiri (1988) 1 NWLR 221 at 230.

6.9 Position Of English Courts Decisions & Decisions Of Other

Foreign Courts
64
No English court or any other common law court forms part of the Nigerian
hierarchy of courts. As such, no Nigerian court is bound by a decision of any
English court under the doctrine of judicial precedence.

Consequently, the decision of English courts and other foreign courts are
merely persuasive authority in Nigeria as Nigerian courts are to apply rules
that in their opinion constitute the correct rules of common law, or equity
and not necessarily rules stated as common law or equity by particular
foreign courts. It was in furtherance of these objectives that the High Court
of the former Western State held in Alli v Okulaja (1970) 2 All NLR 35 - that
itwas not bound by any decision of the English court of Appeal at page 44,
Berkley J. had this to say:court of appeal of England, this country now being
an independent sovereign state.”

He stated further that the judgment of an eminent judge in England would

certainly be of most persuasive authority and would be followed except the
court feels otherwise strongly against the ratio decidendi of such decision.

See also Eliochin (Nigeria) Ltd v Mbadiwe (1986) 1 NWLR (Pt. 14) 47;
Oladiran v State (1986) 1 NWLR (Pt. 475); Ajomale u Yadnat (No. 2)(1991)
5 NWLR (Pt. 191) 266; Nishizawa v Jethwani (1984) 12 S.C.

The position is the same with the common law of other countries especially
those whose statutory rules are also identical in wording with corresponding
rules in force in Nigeria e.g. the Nigerian criminal code was based on the
Queensland criminal code (Australia) and so both have identical provisions.
Cases decided by Queensland courts on the interpretation of those identical
provisions are therefore of persuasive authority in Nigerian courts.

6.10 Position Of Works Of Academics And Textbook Writers

It should be noted that these are merely persuasive and a judge is not
bound to follow such opinion.

6.11 Position Of International Obligation

Where an international obligation has been willingly acceded to by Nigeria,

and has been incorporated into our laws, such has the force of law and is
binding. See Abacha v Fawehinmi (2000) 4 S.C. 400.

6.12 Distinguishing

65
Note: what a judge must do when he wants to refuse to follow a decision of
a higher court by distinguishing that case from the case at hand.

See Board Of Custom & Excise v Bolarinwa (supra).

CHAPTER 7

INTERNAL CONFLICT OF LAWS

7.1 Introduction

As stated in earlier chapters, Nigeria is made up of a vast geographical area

comprising of various tribes and ethnic groups. These tribes all have their
different cultures and traditions binding individuals subject to or belonging to
each tribe. It has been emphasised that the sources ofNigerian law include
English law and customary law. The question that naturally comes to mind is
when or how do the courts determine which law governs a particular
situation or a particular person between those two different systems of law.
Also assuming that it is customary law that is applicable to a situation, the
issue of which particular customary law should be operated comes into
focus. These are the situations necessitating the rules on conflicts of laws.
The scenario presents two types of situation before the law.

(1) Conflict between English and customary law.

(2) Conflict between different systems of customary law.

7.2 Conflict Between English Law And Customary Law

The applicable law of this can be found in the various high court laws. These
provisions are quite similar but for the differences in the classification
ofparties for the purpose of determining who should be bound by the law.

7.2.1 Classification Of Parties

(a) Western States: The high court law applicable to the then Western
States classifies parties as Nigerians and Non Nigerians. See Western Region
Law Cap. 44 and S. 3 High Court Law of Mid Western States.

(b) Eastern States: The high court law applicable to the then Eastern
states classifies parties as “personsofNigerian descent and persons who are
not ofNigerian descent” see. S.20 High Court Law ofEastem Nigerian.Eastern
Nigerian Law 1963.
66
(c) Lagos &The North-The law here classifies parties as natives and non
natives see S. 26 High Court Laws of Lagos State, 1973 Cap. 52.

The next question then is, who is a native and non-native. The old
interpretation Act in S. 3 cap. 89 defined the word native as follows:

“Native includes a native of Nigeria and a native foreigner. Native ofNigeria

means any person whose parents were members of a tribe or tribes
indigenous to some Nigerians and the descendants of such persons; and
includes any person one of whose parents were members of such a tribe:
Native foreigner means any persons (not being a native or Nigeria) whose
parents were members of a tribe or tribes indigenous to some part ofAfrica
and the descendants of such persons and shall include any persons one of
whose parents were members of such a tribe.

t “A non native means any person who is not a native ofNigeria or a

native foreigner.”

Note: This old interpretation Act is used because there is no definition of

native and non native in the present interpretation Act 1990. But the
definition in the old Act is similar to that contained in the latter regional
laws.

From the definition given above, it can be deduced that a Nigerian fall under
the definition ofnatives, Africans, other than Nigerian fall under the definition
of native foreigner while any other person apart from the above would come
under the definition of non native.

7.2.2 The Law

We shall use the High Court Law of Lagos State as a guide for the applicable
rules S. 26(2) HCL of Lagos provides:

“Customary law shall be deemed applicable in causes and matters where the
parties there are natives and also in causes and matters between natives
and non natives where it may appear to the court that substantial injustice
would be done to either party by a strict adherence to any rule of court
which would otherwise be applicable.”

S. 26 (3) “No party shall be entitled to claim the benefit of any customary
law ifit shall appear either from express contract or from the nature of the
transaction out of which any suit or question may have arisen that such a
party agreed that his obligations in connection with such transactions should
67
be exclusively regulated otherwise than by customary law or that such
transactions are transactions unknown to customary law.”

These two sub-sections contain the various rules applicable to

disputesbetween native and non natives and disputes between natives.

7.2.3 Case Of Disputes Between Natives

General rule

From the above, the general rule as provided in S.26(2) HCL of Lagos and
similar to other regional laws is that disputes between natives are governed
by customary law. See Labinjoh v Abake (1924) 5 NLR held.

“The general rule is that ifthere is a native law and custom applicable to the
matter in controversy and if such law and custom is not repugnant to natural
justice, equity and good conscience or incompatible with any local ordinance
and if it shall appear that it is intended by the parties that the obligations
under the transaction should be regulated by English law, the matter in
controversy shall be determined in accordance with such native law and
custom.”

Exception

1. From the provision of S. 26(3) HCL of Lagos an agreement to be

bound by English law removes the matter from the ambit of customary law.
See also Griffith v Talabi (1948) 12. WACA 371, and Oko v. Oloto, 20 NLR
121.

Note the following points

(a) An agreement to be bound by English law operates only in respect of

the particular subject matter for which it is made and not all other
transactions entered into by the party who made the agreement. See (1)
Nelson v. Nelson (1951) 13 WACA, 248 contrast; (2) Cole v Cole (supra) and
(3) Asiata v Goncaclo. See importantly (4) Smith v Smith (1974) 5 NLR 105;
(5) Hastrup v Coker, (1927) 8 68; (6) Re. Enodi (1945) 18 NLRpg 1; (7)
Bamgbose v Daniel (1954) 3 NLR. 561.

Where a party had agreed to be bound by English law in a transaction, he

cannot claim the benefit of customary law in a dispute concerning that
transaction even though the dispute is between him and another person who
was not privy to the agreement. See Green v 01wo. 1936. 13. NLR 43.

(c) An agreement to be bound by English law binds only the person

68
who made the agreement and his successor in title. It has no effect on a
person who was not privy or party to the agreement. See Pillars v. Baffor
(1909) REN. 549.

(d) An agreement to be bound by English law maybe expressly made by

the parties to be implied by the courts from the transaction or conduct of
parties. See Green v Owo (1936) 13. NLR. 43.

2. A second exception to the general rule is that transaction unknown to

customary law would be governed by English law See S. 26(13) HCL of
Lagos State, 1973. It is undisputable that in present dayNigeria, activities
abound with hitherto were unknown to customary law. Various forms of
contracts have arisen with the computer age, various technological
developments resulting, for instance, in novel areas like creation of
copyrights, automobile, immigration, fashion etc. Many of these situations
cannot be handled by customary law, as customary law has no rules
governing them. In cases involving such novel areas of existence, English
law would be applied by the courts even though the dispute involves purely
natives. A transaction of a nature not considered to be subject to any
existing native law and custom accepted in the community as binding is a
transaction to which customary law does not provide e.g. a transaction to
which the use of a promissory note was essential has been held to be
unknown to customary law. See Bakare v. Coker (1935) 12 NLR 15. Note
following:

(a) Where a conveyance in English form constitutes an essential part of a

transaction, the transaction is unknown to customary law, see Green v Owo
(supra).

(b) The fact that the subject matter or situation concerned has come to
the knowledge of the local community does not mean the transaction is
known to customary law. See Salawu v Aderibigbe (1963) 1 NNLR 80.

(c) Hitherto, the use of writing automatically removed a transaction from

the purview of customary law. See Egbuche v Chief1dido 11 NLR 441 held
that an agreement in writing concerning the sale of land removes the matter
from the control of customary law. However in Rotibi v Savage (1944) 17
NLR 77 the absolute position was objected to by Waddington J. when he
warnedagainst the application of the principle that a document imports
English law “where the documents amount to no more than the kind of
`paper’ which most natives nowadays like to have as evidence ofa money
transaction and which at this day is, I suppose, quite a familiar object in
most native courts and frequently bearing an impressive array of stamps.”
69
7.2.4 Cases Of Succession And Inheritance

The two exceptions above discussed constitute the only statutory exceptions
to the general rule that cases between natives are governed by customary
law. However the problems of choice of law is also often presented in cases
of inheritance and practice shows that the courts sometimes apply English
law to these cases despite the fact that statute does not govern them.

(a) The making ofa Will in English form has often led to the application of
English law to the estate of the deceased native. See Apatira v Akanke
(1944) 17 NLR 149. The deceased’s Will suffered a technical flaw which
rendered it invalid under the Wills Act and counsel argued that it should be
admitted to probate under Islamic law, it was held that since the testator
had clearly intended his Will to take effect under English law, it was to be
judged by the standards of that law. See also Vaughan & Ors v George
(1942) 16 NLR 85; Sogbesan v Adebiyi (1941) 16 NLR 26. Contrast above
cases with Balogun v Balogun (1935) 2. WACA 290 Jacobs v. Oladunni Bros
(1935) 12 NLR 1.

Despite the seeming conflict in the various line ofcases, the trend of the
court was that it inferred an intention for English law to apply to a Will under
the then Wills Act 1882, simply because the making of a will in writing is
unknown to customary law, provided this can be done without rendering
nugatory the provisions of the Wills Act. See Adesugbokan v. linusa (1973)
UILR 25.

Suits on intestacy also come within the ambit of situations where English law
is applied.

(i) Decisions at first reflected a tendency to create an absolute rule

that English law should govern the estate of a native who died
intestate who had been married in a Christian churchshould have
his property distributed in accordance with English law and not
customary law. See also Adebola v Kola Folaromi (1981) 3 NLR 89;
Hastrup v Coker (supra); see especially Bamgbose v Daniel (1954)
3 NLR 561

(ii) Some decisions given here however seem to show that the type of
marriage entered into is only one of the many factors to be
considered in determining the applicable law. See Ajayi v. White
1946 18 NLR 41; Smith v Smith (supra); Onwudinjoh u Onwudinjoh
(1957) 11 ERNLR 1.

7.2.5 Cases Between Natives And Native Foreigners

70
From the definition of native earlier, we have realised that native foreigner
means Africans apart from Nigerians. They are also considered to be
Nigerians and thus the rules applicable to Nigerian apply to them.

7.2.6 Cases of Disputes Between Natives And Non-natives

As earlier stated non native defined as a person who is not a native ofNigeria
or a native foreigner i.e. a person who is not a Nigerian, or African, e.g. a
Briton, American etc.

The Law

General rule -The general rule as decided from S. 26(2) HCL of Lagos, 1973
is that cases between natives and non natives are governed by English law.
See Koneyyi v United Trading Co. (1934) WACA 188, held by West African
court of appeal that under the relevant law a case between a native and a
person who was not an African is governed by English law.

EXCEPTION

The only exception is derivable from 5.26(2) HCL of Lagos 1973 and it is to
the effect that customary law would be applied to cases between natives if
the application of English law would cause substantial injustice to either
party. See Nelson v Nelson (1951) 13 WACA 248.

QUARAE

(i) What would be the result if the native had agreed that the transaction
should be governed by English Law? Can the court still apply customarylaw
on the ground that substantial injustice would be done to him by the
application ofEngtishlaw.

(u) Would the fact that substantial injustice shall be done to the non-native
make the court apply customary law? See Obilade: Nigeria Legal System pg
156.

Note

(a) It appears that a non native is not allowed to claim the benefit of
customary law as there is no equivalence that where a non native agrees to
be bound by customary law, then customary law would apply. Cases where
such benefit would have arisen have been declared invalid in some court
decisions. See FfonesCapasman (1958) NRNLR 47; Savage v Macfoy (1909)
REN 504.

71
The exception on substantial injustice is limited to cases between natives. It
does not apply to cases between non-natives. Compare Osuro v Anjorin
(1946) NLR 415.

7.3 Conflict Between Different Systems Of Customary Law

It is now a truism that customary law differs from community to community.

The exigencies of commerce, social interaction and modernization have also
rendered it imperative that there should be interaction between the various
ethnic groups. Throughout the country most of the inhabitants of a particular
locality still belong to one or more ethnic group. However, in every
areaminority groups exist whose origin lie in different communities, where a
dispute concerns one or more of such minorities, and it is decided that
customary law applies, the question arises as to which particular customary
law should govern it i.e. the local law or the personal or individual law of the
person involved e.g.

1. If a Kaduna man lives in Ile-Ife for a period of 30 years and got

married in Ile-ife to a lady from Aba and dies interstate, what law should
govern the succession to his property.

2. If an Ibibio man got married to an Ilesha woman and the marriage was
celebrated in Ilesha, what law should the court apply in an action for the
dissolution ofthat marriage if the actions is filed in Ilesha?

3. If two Igbo men from Aba enter into a contractual relationship in

Kaduna assuming that customary law applies, what law should the court
apply?

There are the types of situations that the rules relating to conflict between
different systems of customary law would try to regulate.

Where customary law is the applicable law, the rules for determining the
applicable customary law should be found in the following enactments.

1. Former Western and Mid Western States. See S. 20 Customary Law

WRN law 1959 and customary court law of Mid Western State, including
states created out of this region.

2. Northern States. See S. 20 and 21 Area Courts Edict 1968 of Plateau

State for example.

72
3. Eastern States-Magistrate Courts Law E.N. Laws 1963 Cap 8, including
states created out of this region.

In allthejurisdictions inthecounty when customary lawis applicable the courts

are directed to apply either the law prevailing in the area of jurisdiction of
the courts or the law binding between the two parties. The question then is
what constitutes the law prevailing in the area of the court’s jurisdiction.

The Law Prevailing In The Area Of Jurisdiction Of Court

See R. v florin Native Court ExparteAremu (1950) 20 NLR 144, where

Ademola CJ rejected the view that there could be more than one law
prevailing in the court’s area and held that prevailing means predominant.
Hence the predominant law would be the prevailing law. For instance, in the
Ile-Ife there are other ethnic groups residing there apart from the
indigenous people. e. g. Hausas. Ife population itself may constitute 80% of
the entire population but Ife customary law would be prevailing customary
law in the city. Ifthe minority law is applied, it will be applied as the law
binding between the parties.

Individual Or Personal Law

The succession cases throw some light on how the individual law of a party
is determined. The cases indicate that a man’s individual or personal law is
that of community to which he belongs. See Re Estate OfAlayo (1946) 18
NLR 5, where it was held that where an Ijebu woman of the Islamic faith and
married under the faith died intestate in Lagos, the applicable customary
law is Ijebu customary law on the ground that she was a native of Ijebu.
Tapa v Kuka (1945) 18 NLR 5, held that the law applicable to the estate of a
deceased Nupe Mohammedan in Lagos was that of a Nupe and not the law
that prevailed in Lagos.

Note (1) Where a community applies both Islamic or Moslem law and ethnic
customary law, the test applied to determine the applicable law is the
attitude of the person involved. See Asiata V. Gongallo (1900) NLR 41
Moslem law was applied to the estate of a deceased intestate resident in
Lagos because in his life time he considered himself subject to Moslem law.
Seealso-Mariyam v SadikuEjo(1961) NRNLR 81.

(2) A person resident in a community whose law is different from that of his
community may cease to be ordinarily subject to the latter if he integrates
himself into the community in which he had settled and regarded himself as
subject to that community law.

7.3.2 Western And Mid Western States

73
S. 20 Customary courts law WRN Law 1959.

(a) Land Cases

The general rule is that the lexsitus is the applicable law i.e. customary law
of the place where the land is situate. See S. 20 (1) customary court law
WRN Law 1959.

Exception

The lex sites would be inapplicable in a situation where under the lexsitus a
party’s right to occupy land by devolution on death is affected but under the
rules of inheritance of any other customary law to which the party in
question is subject, he would have been entitled to beneficial interest in the
land or in the proceeds of the sale of the land. In this case the lex sites
cannot deprive him of any such beneficial interest except the right to occupy
the land S. 20(4) customary courts law WRN 1959.

(b) Succession

See S. 20(2) Customary Courts Law WRN Law 1959 and S. 23(2) Customary
Courts Law of Mid Western Region which provide:

“In cases and matters sing from inheritance the appropriate customary law
shall, subject to subsection (1) and (4) ofthis section, be the customary law
applying to the deceased.”

Therefore in succession cases the applicable law is the personal law of the
deceased.

Exceptions

() S. 20(2) CCL WRN Law 1959-Land causes.

(a) S. 20(4) CCL WRN Law 1959-Cases of beneficial interest.

(c) Other Civil Maters Apart From Land Or Succession

See S. 20(3) customary courts law WRN Law 1959. The following are the
applicable rules:

In civil cases and matters where (1) both parties are not natives of the area
of jurisdiction, the court of law binding between the parties applies.

74
If the transaction which is the subject of the cause or matter was not
entered into in the area of jurisdiction of the court, the law binding between
the two parties applies.

Where one of the parties is not a native of the area of jurisdiction of the
court and the parties agreed that their obligation should be regulated wholly
or partly by the customary law that applied to that party the appropriate
customary law shall be the customary law binding between the parties.

Note:(1) In Nos (i) and (ii) above the law binding between the parties may
also be law of the area of jurisdiction of the court. (2) In all other civil
causes and matters the appropriate customary law should be the law of the
area of jurisdiction of the court. See S. 20(3) (B) Customary Courts Law of
Western States 1959.

7.3.3 Northern States

The law governing this situation in the Northern States is found in the
various Area Courts Edicts of these states with identical provisions e.g. Area
Courts Edict No. 1 1967 of Kano State or Area Courts Edict 1963 of Plateau
State.

120

GENERALRULE

The general rule in the Northern States is that an Area court shall apply the
native law and custom prevailing in the area of the court’s jurisdiction or
binding between the parties. See S. 20(1) area court edict 1968 plateau
state. This general rule governs mixed civil causes.

EXCEPTIONS

See S. 21 Area Court Edict 1968 Plateau state which governs mixed civil
causes. A mixed civil cause is a cause in which two or more of the parties
are normally subject to different systems of customary law. Example, a
cause to which an Efik man and an Ijesha man are parties. The following
rules apply in such cases.

(a) Succession - S. 21(1) Area Courts Edict 1968 Plateau State which
provides that in mixed succession cause other than land, the court is to
apply the principle of natural justice, equity and good conscience. In practice
the courts therefore apply the individual or personal law of the interstate.
75
Note: In unmixed succession causes, the general rule in S.20(1) applies and
in this instate, the personal law of the deceased is also applied. See
Ghamgon v Nohil (1947) 12 WACA 181.

Land Causes

See S.21(2) Area courts edict of Plateau state which provides that all land
causes whether mixed or unmixed are to be governed by the lex sites

(c) Other Civil Causes

S.21 (1)(a)-(e) governs all other situation of mixed civil causes. The
applicable law is:

(a) The particular native law and custom which the parties agreed or
intended or may be presumed to have agreed should regulate their
obligations in connection with transactions which are in controversy before
the court.

(b) The combination of any two or more native law or customs which the
parties agreed or intended or may be presumedto have agreed or intended
should regulate their obligations as aforesaid

OR

If the court is unable to determine the agreement or intention of the parties

as stated above, then.

(c) The court shall apply the particular native law of custom or
combination of customary law, which it appears to the court, having regards
to the nature of the transaction and to the circumstances of the case, to
regulate the obligations of the parties.

Unmixed civil causes other than land or succession causes are governed by
the general rule in S.20 (1) i.e. the law prevailing in the area of jurisdiction
of the court or binding between the parties. See Osuagwu v Soldier (1995)
NRNI 39.It involved an action between two Igbo residing in Kaduna in which
the plaintiff claimed the value of a box of clothing, which he alleged he had
entrusted to the defendant of safe keeping. In the Alkali court at Kaduna,
the Alkali applied Islamic law and awarded damages to the plaintiff. The
defendant appealed on the ground that Islamic law should not have applied
and the contention was accepted by the high court.

(d) Cases Before The Sharia Court Of Appeal

76
S. 11 (e) Sharia Court of Appeal Law, NNLaws 1963 empowers the Sharia
Court of Appeal in each state to (whether or not they are Muslims) have by
writing under their hand requested the court that heard the case at first
instance to determine that case in accordance with Islamic law. In such
case, the principles earlier set out will be inapplicable.

7.3.4 Eastern States

There are no specific provision in the Eastern State but only the general rule
that the court should administer either the law prevailing in the area of the
courts’ jurisdiction or binding between the parties. We may however borrow
a leaf from the specific principles in other regional laws in determining the
applicable law e.g. land cases- lexsitus, succession causes, personal law of
the deceased. See Tapa v. Kuka (1945) 18 NLR 5. In other cases apart from
these, the following may be applicable rule.

122

Where the personal law of both parties are the same but differ from the law
of the area of the court’s jurisdiction then the personal law would normally
be binding between them. See Osuagwu v Soldier (supra).

Where one party’s individual law is the territorial law while the other’s is not,
then failing any indication of agreement or intention to the contrary, the
court would normally apply the territorial law.

Where the parties are subject to different individual laws each of which is
different from the territorial law and there is no indication of agreement or
intention as to which law shall apply then if the cause of action has sufficient
connection with the area of the court’s jurisdiction to give jurisdiction to hear
the case, the territorial law in most circumstances would be deemed to
apply.

PART THREE LAW ORGANISATION

CHAPTER8

ORGANISATIONS CONNECTED WITH ADMINISTRATION OF JUSTICE

8.1 Law Reform Commission

77
The Nigerian Law Reform Commission was established by the Nigerian Law
Reform Commission Act No 71979 now Cap 313 Laws of Nigeria, 1990. The
duty of the Commission is stated in S. 5 of the Act to this effect.

“It shall be the duty of the Commission generally to take and keep under
review all federal laws with a view of their systematic and progressive
development and reform in consonance with the prevailing norms of the
Nigerian society including, in particular, the codification ofsuch laws, the
elimination of anomalies, the repeal of obsolete, spent and unnecessary
enactments, the reduction in number of separate enactments, the reform of
procedural laws in consonance with changes in the machinery of the
administration ofjustice and generally the simplification and modernisation of
the law. “

In the exercise ofits statutory functions the Commission is expected to

receive and consider proposals for reforms that may be referred to it by the
Attorney General of the Federation or it may initiate its own reform
measures and programmes, and submit its reports to the Attorney-General
of the Federation for the consideration of the National Council of Ministers.
The commission is given power to consider proposals for the reform of state
laws from any state, group of states or all the states and report to the
appropriate Attorney General or Attorneys General.

The commission may also provide experts advice and information to Federal
Government Ministries, Departments or other institutions at the instance of
the Federal Government with regard to proposals for the reform or
amendment of any branch of the law.

124

Pursuant to its programmes of law reform, the commission may hold public
sittings, organise or attend seminars and conference in Nigeria, or enter into
correspondence with other law reform agencies or participate in relevant
conference in or outside Nigeria.

The commission is wholly subvented by the government

The commission has undertaken a large number ofprojects since its

inception. Example include - Reform of the Marriage Act. Reform of the
statutes of General Application and recently the workshop on the reform of
the Evidence Act.

8.2 Institute Of Advanced Legal Studies

78
Established by the Nigerian Institute of Advanced Legal Studies Act 1984, it
is a body corporate with perpetual succession and common seal and may
sue and be sued in its corporate name. The management of the institute is
undertaken by the Nigerian Institute of Advanced Legal Studies Council
which is made up of the following numbers:

(a) A chairman appointed by the Head of Federal Military Government or

President

(b) A representative of the Ministry of Justice

(c) A representative of the Ministry charged with responsibility for higher

education.

(d) Six Deans or heads of faculties or other formations of Nigerian

Universities offering graduates level programmes.

(e) The Director of the Nigerian Law School.

(fl One member of the judiciary nominated by the Chief Justice of Nigeria.

(g) The president of the Nigeria Bar Association.

(h) Five persons of whom one shall be a woman to be appointed by the

Head of the Federal Military Government or President.

(i) The Director-General of the Institute.

FUNCTIONS OF THE INSTITUTE

S. 4 NIALS Act, 1984 as found in the Laws of the Federation provides for its
functions:

(a) To provide information, supervision, guidance and advice to post

graduate students and other researchers who are working for post graduate
degree of any university in the field of law and related subjects.

(b) To conduct research into any branch of the law or related subject with
a view of the application of the results thereof in the interest of the country.

(c) From time to time to organise, host, arrange and conduct national or
international seminars, symposia, conference, workshops, lectures on any
branch of the law or related subject.
79
(d) To prepare and publish books, records, reports and journals as may
seem desirable for the dissemination of research findings, seminars,
symposia, conference, judicial workshops and lectures.

(e) To co-operate with Nigerian Universities, Nigerian Law School, the

Nigeria Law Reform Commission and such other bodies (whether in Nigeria
or elsewhere) engaged in any major field relating to lawreform, development
or research in the mobilisation of the country’s research potentials for the
task of national development and dissemination of research fording for the
use of policy makers at all levels.

To carry out such other activities as are necessary and expedient for the full
discharge of any of its functions under or pursuant to the Decree.

Under S.9 of the Act, the Council is given power to create such academic
posts as it may deem necessary for the efficient performance of its
functions.

REFERENCES

1. Obilade - Nigerian Legal System

2. Park - Sources ofNigerian Law

3. Nwadialo - Introduction To Nigerian Law

4. DavidJemibewon - An Introduction to the the Theory and

Practice ofMilitary Law in Nigeria

5. R.M. Jackson - The Machinery OfJustice In England

6. M.C. Okany - The Role ofCustomary Courts In Nigeria

7. Anyebe - Customary Law: The War Without Arms

8. Mackay - The Legal Profession: 1990

9. A. Obi-Okoye - The Development OfJudicial Trials

In Nigeria.

10. Fidelis EjikeOmo - The Court And Administration Of Law

80
In Nigeria

81