POL 105 – NIGERIAN LEGAL SYSTEM

COURSE CONTENTS

1. Nature of Legal System

2. Nature of Law

3. Meaning of Law

4. Differences between Law, Morality and Customs

5. Usefulness of Law

6. Classification of Law

7. Sources of Nigerian Law

8. Hierarchy of Courts

9. Rules of Interpretation of Statutes

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Nature of Legal System

Every society all over the world has set of laws, rules and regulations and a system

of enforcement put in place to regulate and protect persons and properties in the

overall interest of the society. While a person desires absolute freedom to do or not

to do whatever he likes, the state has had to limit absolute freedom in the overall

interest of the society in general. Hence, human conduct is regulated by law,

prescribing standards of behaviour in the society. Therefore, where law guarantees

a right, there is a corresponding duty created. Similarly, whenever law imposes a

duty, it also creates corresponding right. Without law and a law enforcement

system, society would be disorderly. Rights and duties would be meaningless.

They would not be respected and protected. Orderly and right living would be

impossible. There would be chaos and anarchy. Therefore, the existence of a legal

system is a necessity in the overall interest of the society in general.

The term ‘legal system’ is the composition of the laws, courts, personnel of the law

and the administration of justice system in a given state, country or geographical

entity. Therefore, the study of Nigerian Legal System is the study of the laws,

courts, personnel of the law and the administration of justice system in Nigeria.

Nature of Law

Every society whether primitive or civilized, is governed by a body of rules which

the members of the society regard as the standard of behaviour. It is only when

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rules involve the idea of obligation that they become law. When they merely

represent the notions of good and bad behaviour, they are rules of morality.

Nevertheless, law is most effective when it conforms to the moral feelings of the

members of the community. Mere coincidence of patterns of behaviour does not

indicate the existence of law. Mere habits are thus to be distinguished from

obligatory rules.

Meaning of Law

Law is a complex phenomenon. There is no universally accepted definition of law.

Law may however be seen as consisting of body of rules of human conduct. It is

the rules and regulations of a given society. It is the rules usually made by the

legislative arm of government which order the way persons, bodies and society

should behave. It is the code of conduct for persons, bodies and society in general.

Differences between Law, Morality and Customs

Law and morality may appear to mean the same thing, but the two are mutually

independent, though they may appear to be in harmony in some instances. In some

cases, the law appears to be behind morality; while the reverse is the case in others.

For example, while adultery is a moral wrong in the southern states of Nigeria, it is

not an offence under the law. This shows that the level of moral condemnation is

not strong enough to make it an offence. Likewise, except in exceptional

circumstances where exists special relationship, a person is not obliged under the

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law to come to the aid of his neighbour in putting out a blazing fire that eventually

engulfs his property even if it is shown that it could have been done without risk of

injury to his person. Therefore, the difference between law and morality is the

availability of sanction. Law, unlike morality, almost always provides for definite

sanctions; while the breach of a moral code may only incur societal disapproval or

spiritual condemnation.

Customs like law also have normative values and command obedience from

members of the society. But in spite of their effectiveness, they are easily

distinguishable from law in the sense that unlike customs, law attracts physical

coercion. A custom does not become legally binding unless it receives the force of

law.

Usefulness of Law

Law is very useful in every society. Some of the usefulness of law among others

are that:

1. It assures orderliness and peace in society

2. It guarantees of rights, freedoms and duties

3. It assures safety of life, property and society

4. It provides a forum for peaceful and orderly resolution of disputes i.e courts

5. It assures progress and advancement of society

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 6. It provides a framework for individual self-actualisation and achievement of

societal goals.

7. It ensures an orderly, safe, progressive and free society.

Classification of Law

There is no universally accepted authoritative way of classifying law; and some

laws may be overlapping i.e falling into different classes. However, all laws may

be generally classified into pairs as follows:

1. Public Law and Private Law

2. Criminal Law and Civil Law

3. Substantive Law and Procedural (Adjectival) Law

4. International Law and Municipal Law

5. Written Law and Unwritten Law

6. English Law and Customary Law and Islamic Law

7. Common Law and Equity

8. Primary Law and Secondary Law

Public Law and Private Law

Public law is primarily concerned with the smooth running of the machinery of

state. Therefore, it caters for cases where interest of society is directly involved or

the smooth interaction between governmental agencies and organ of the state is

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threatened. Subjects like constitutional law, administrative law, criminal law,

revenue law etc fall within the purview of public law.

Private law on the other hand, is the branch of law which is concerned with the

legal relationships of private individuals, association of persons and corporate

bodies and their rights and duties. Examples of private law are law of contract, law

of torts, family law, succession and commercial law.

Criminal Law and Civil Law

Criminal law is the law which defines, prohibits and punishes crime. It involves the

enforcement of those rules of conduct, the infringement of which will invoke a

punishment. Criminal prosecution is the responsibility of the state, although private

prosecutions are allowed in well-defined circumstances.

Civil law is primarily concerned with competing private interests and obligations.

It is often invoked by private persons, although the state or its organs may, in

appropriate cases, initiate or defend such actions. The object of a civil action is to

obtain relief either by way of damages or injunction.

Substantive Law and Procedural/Adjectival Law

Substantive law is the law which stipulates rights and duties. It is the actual law, or

law as we know it. It is the law which creates, defines and regulates the rights and

duties of persons. It is the law which stipulates what conduct is lawful or unlawful;

permissible or prohibited.

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Procedural/Adjectival law on the other hand, is the law of the process and

procedure of enforcing substantive law. It is the law which stipulates the process

and how to enforce substantive law. It is the rules of practice and procedure. It is

the rules which regulate the application, administration and enforcement of

substantive law. It stipulates the process and methods of proof and how to obtain

and enforce remedies for the breach of substantive law.

International Law and Municipal Law

International law is the law which regulates legal relations among sovereign

nations. It is the rules and agreements which regulate the conduct of nations and

international organisations.

Municipal law is the laws of a given country being laws made by such country for

itself. It is the laws emanating from a particular country and having the force of

law within its territory.

Written Law and Unwritten Law

Written law is commonly known as statute law or legislation. Written law is law

which takes its force from express legislative enactment.

Unwritten law is all parts of the law, observed by the people and administered in

the courts, but which has not been passed in the form of statute law.

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English Law, Customary Law and Islamic Law

English law is the law of England which was received into Nigeria by virtue of

local statutes which permitted the application of English law in Nigeria. The

English law which was received for application in Nigeria is made up of three

different kinds of laws – the Common Law of England, Equity and Statutes of

general application in force in England on January 1, 1900.

Customary law is a custom which is accepted as binding by a people. It is the body

of customs which from long use have acquired the force of law among a people.

Islamic law is principally in written form. The sources of Islamic law are the Holy

Qur’an, the practice of the Prophet (SAW) i.e Sunnah, the consensus of scholars

and analogical deductions from the Holy Qur’an and from the practice of the

Prophet (SAW). Islamic law is alternatively called Shari’ah (the sacred law of

Islam).

Common Law and Equity

Common law is the law which grew from the customs common to the people of

England and Wales. It is that part of the laws of England which grew from the

common customs of the people and was applied as judicial precedents i.e

successive like decisions of the courts through the ages.

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Equity is the rules of fairness and natural justice, formulated and administered by

the Court of Chancery to supplement and soften the hardships of the Common Law

of England.

Primary Law and Secondary/Subsidiary Law

Primary law means law actually made by parliament or the legislature.

Secondary/subsidiary law means delegated legislation made by public officer,

administrative authority, statutory body, government department or public agency

pursuant to a primary law which has delegated authority or power to the public

authority to make such delegated legislation.

Sources of Nigerian Law

Sources of Nigerian law are:

1. Nigerian legislation which consists of Ordinances passed by Nigerian

Central Legislature before October 1, 1954; Acts of National Assembly;

Laws of States Assemblies; Decrees of Federal Military Government; Edicts

of States Military Governments; and Local Government Bye-Laws.

2. English Law which consists of:

a) Received English Law comprising:

i. Common Law;

ii. Doctrines of Equity;

iii. Statutes of general application in force in England on January 1, 1900;

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 iv. Statutes and subsidiary legislation on specified matters

b) English law made before October 1, 1960 and extending to Nigeria.

3. Islamic Law which consists of Qur’an, Hadith and Sunnah of the Prophet

Muhammad (SAW); Ijma (Consensus of the Jurists); Qiyas (Analogical

deductions based on the provisions of the Qur’an, Hadith and Sunnah).

4. Customary Law or native law and custom is a custom which is accepted as

binding by a people. It is that customs that have the force of law among a

given people. It is a body of customs which from long use has acquired the

force of law among a people. The attributes of customary law are that:

a) It must be in existence at the material time;

b) It must enjoy general application among the people;

c) It must be accepted as a binding custom;

d) It is flexible or elastic; and

e) It is largely unwritten.

For a custom to be applied as a customary law and enforceable by the courts in

today Nigerian society, the custom must satisfy or pass three validity tests which

are:

a) The repugnancy test which requires that a custom should not be contrary to

natural justice, equity and good conscience.

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 i. Natural justice which means fair hearing in all ramifications. It is an

inherent right of a person to have fair and just treatment by others.

Natural justice has two main principles in Latin phrases as:

 Audi altarem partem which means hear both parties in a dispute before

giving judgement or taking decision; and

 Nemo judex in causa sua which means that no one should be a judge in his

own cause.

b) Equity means fairness, just, right and justice.

c) Good conscience means a conscience that is innocent, pure and impartial. It

is a good heart and mind that will not do wrong to another person. It is a

conscience that is good and just towards everyone and the world as a whole.

Likewise, for a custom to be applied as a customary law and enforceable by the

courts in today Nigerian society, the custom must satisfy or pass the

incompatibility test as well as public policy test.

5. Judicial precedents or case law consists of law found in judicial decisions. It

is the principle of law on which a judicial decision is based. It is the ratio

decidendi (reason for the decision). It follows that it is not everything said

by a judge in the course of delivering his judgement that constitutes a

precedent. Only the pronouncement on law in relation to the material facts

before the judge constitutes a precedent. Any other pronouncement on law

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 made in the course of a judgement is an obiter dictum (statement by the

way); and it does not form part of the ratio decidendi. Unlike ratio decidendi,

obiter dictum has no binding effect for the purpose of the doctrine of judicial

precedent. Following the principle of case law or judicial precedent, the

doctrine of stare decisis (binding precedent) makes it a rule that a court is

bound to follow decisions of a higher court in the hierarchy. But a lower

court is not bound to follow a decision of a higher court which has been

overruled. Furthermore, a lower court is not bound by a decision of a higher

court where that decision is in conflict with a decision of another court

which is above such higher court in hierarchy. Moreover, in principle, a

lower court is entitled to choose which of two conflicting decisions of a

higher court or higher courts of coordinate jurisdiction. Therefore, precedent

is either binding or persuasive. It is binding when the court in which it is

being advanced is bound to follow it. Decisions of courts higher in the

judicial hierarchy are normally binding on the lower courts. On the other

hand, precedent is persuasive when it is within the powers of the lower court

to either choose to follow or depart from it. Decisions of lower courts, courts

of coordinate jurisdiction and foreign courts are treated as merely persuasive.

Hierarchy of Courts

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It is well known that the courts in Nigeria exercise the powers of the judicial arm

of the government. Section 6 (1) and (2) of the 1999 Constitution of the Federal

Republic of Nigeria vest the judicial powers of the Federation and states in the

respective courts listed in subsection (5) of section 6 of the Constitution. These

courts are:

 The Supreme Court of Nigeria

 The Court of Appeal

 The Federal High Court

 The High Court of the FCT, Abuja

 High Court of states

 The Shariah Court of Appeal of the FCT, Abuja

 Shariah Court of Appeal of states

 The Customary Court of Appeal of the FCT, Abuja

 Customary Court of Appeal of states

 Such other courts as may be authorised by law to exercise jurisdiction on

matters with respect to which the National Assembly or a House of

Assembly may make laws

Apart from the courts specifically listed above, subsection (4) (a) of section 6

further empowers the National Assembly and states Houses of Assembly to

establish courts with subordinate jurisdiction to that of a High Court. It is in line

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with this, that courts like Area Courts, Lower and Upper Shariah Courts,

Customary Courts of different grades, and Magistrates’ Courts of different grades

are established in different states. Furthermore, mobile courts and other kinds of

courts are established for effective administration of justice in any state that wishes

to so establish.

Jurisdiction of court is generally described as the legal authority or the extent of

the power given to a court by the law establishing it. Such powers may be limited

or unlimited. The limitation may be in reference to geographical area; in respect of

the amount over which the court may not exceed; in regard to the kind of matters

that it can lawfully determine; or as to the value of the property in litigation. Where

the jurisdiction of a court is thus limited, the court is referred to as a “court of

limited jurisdiction”. If there is no such limitation, then the court is referred to as a

“court of unlimited jurisdiction”.

Courts may further be classified into superior courts and inferior courts. Section 6

(3) designates the courts specifically mentioned in subsection (5) as the only

superior courts of record in Nigeria. Others are classified as inferior courts.

Appeals from inferior courts lie in the superior courts. For instance, appeal from

Magistrate/District Court lie in the High Court of the respective state. Likewise,

appeal from Area/Shariah Courts lie in the Shariah Court of Appeal of the

respective state. Appeal from Customary Court lie in the Customary Court of

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Appeal of the respective state. Further, appeals from High Court, Shariah Court of

Appeal and Customary Court of Appeal of any state lie in the Court of Appeal.

Furthermore, all appeals from any court with coordinate jurisdiction with the High

Court, such as Federal High Court, Code of Conduct Tribunal, Court Martial,

Industrial Court, Revenue Court, Election Tribunal etc, lie in the Court of Appeal.

Finally, appeal from Court of Appeal lie in the Supreme Court of Nigeria which is

the apex court in Nigeria, and no more appeal.

Supreme Court

Federal High Court;  Court of Appeal  Election Tribunal; Court Martial;

Industrial Court; Code of Conduct Tribunal;
Revenue Court

State High Court Shariah Court of Appeal Customary Court of Appeal

  

Magistrate Court Upper Area/Shariah Court Customary Court

Lower Area/Shariah Court

Rules of Interpretation of Statutes

The judiciary is one of the three arms of government saddled with the duty of

interpretation of laws and adjudicating on matters brought before courts. Where a

statute as enacted by the legislature is clear, plain or free from ambiguity, the need

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for interpretation of the statute will not arise. In such instance, the court will

straight away apply the law as it is. Laws are generally written in words. Words are

not always exact in meaning. A word may not have one meaning, but several

meanings. The intention of the legislature as expressed in a statute is not always

clear and free from ambiguity. In such instance, a judge must decide the meaning

of the word, clause or provision in issue. Therefore, it is one thing for the

legislature to enact a statute, and another thing for the courts to be able to apply the

provisions of the statute to the cases which come before the courts.

The main principles or rules of interpretation evolved over time by judges to find

out the meaning of a statute or intention of a lawmaker as written down in a statute

are: literal rule, golden rule and mischief rule.

1. The Literal Rule

By literal rule, a statute is to be interpreted according to the ordinary, natural,

literal and grammatical meaning of the words of the statute. The literal rule is

usually applied first. It is where the literal rule will not achieve the purpose of a

statute that other rules of interpretation are applied. Under this rule, where there is

any inadequacy in a law, it is for parliament and not for the judiciary to decide

whether any changes should be made to the law. It is the duty of parliament to

amend a law to keep pace with the needs of the society.

2. Golden Rule

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The golden rule means that where the literal meaning of words will lead to an

absurd result, a court should adopt an interpretation that avoids the absurdity. Thus,

where for instance, a provision is capable of more than one meaning, the golden

rule enables a judge to adopt a meaning which will avoid absurdity. In other words,

where a study of the statute as a whole reveals that the decision, ruling, judgement,

order or conclusion that will be reached by applying the literal rule is contrary to

the intention of parliament, the golden rule enables court to adopt an interpretation

that will avoid absurdity and promote the intention of parliament or law and order

and a peaceful society.

3. Mischief Rule

The mischief rule means that a statute should be interpreted to deal with the

mischief it was enacted to cure. The mischief rule requires that a judge should look

at a statute to see the intention of parliament and interpret it to remedy the wrongs

that it was meant to correct. Under this rule, a court will examine a statute to see

what is its intention or purpose and what mischief, wrong, evil, problem or

weakness in the former law or society that the statute was enacted or intended to

cure, and then interpret it to prevent the mischief.

Apart from the main rules of interpretation of statutes, other rules which have been

evolved by judges to help in the interpretation of statutes are that: a statute must be

read as a whole; ejusden generis rule; and noscitur a sociis.

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 1. A Statute must be Read as a Whole

A statute must be read as a whole in order to find out and understand parliament’s

intentions as expressed in the statute. The words, clauses and provisions of a

statute must not be picked and read in isolation from the whole statute. This is so

because when a statute is read as a whole, other provisions which throw more light,

explain, limit, enhance or are complementary to the provision sought to be applied

may be found. All these help to apply a statute to remedy the problem it was

enacted to correct.

2. Ejusdem Generis Rule

Ejusdem generis is a Latin phrase which means “of the same kind or nature”.

Ejusdem generis is a rule of interpretation which states that where particular words

are followed by general words, the general words are to be interpreted as being

limited or restricted to the same kind as the particular words. However, there must

first be a category specified before the presumption can apply. Thus, where a

statute for instance refers to “dogs, goats, cats and other animals”, the phrase “and

other animals” are to be interpreted or construed as limited in their application or

reference to domestic animals. The phrase would not be stretched or interpreted to

include animals which are not domestic in nature.

3. Noscitur a Sociis or the Context Rule

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Noscitur a sociis is a Latin maxim or phrase which means that the meaning of a

word can be gathered from its context. Just as a person may be known by the

company or the kind of friends the person keeps, so also a word may be interpreted

or known by the company of words it keeps. Thus, words are to be read and

interpreted in the context in which they have been used. Therefore, any section or

provision which is being interpreted should be read as a whole. Where a particular

provision is not clear, all relevant provisions must be considered.

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