The Reception of the Law of Torts in Nigeria

TABLE OF CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• How law of tort was received into Nigeria
• Sources of the Nigerian law of tort

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

The evolution of the law of tort has been somewhat haphazard and it is an area of law which is still developing. Note until 1932, was negligence officially recognized by the House of Lords in England as a separate tort, has negligence been of central importance. However, the vast majority of tort claims today are for negligence. Negligence has proved the most appropriate action in modern living conditions, especially since the development of the motor car. We shall consider how the law of torts was received into Nigeria.

OBJECTIVES

By the end of this unit you should be able to:

• explain how the law of torts was received into Nigeria;
• enumerate the sources of the Nigerian law of tort.

MAIN CONTENT

How Law of Tort was received into Nigeria

The law of tort is a part of the common law of England which is itself, a part of the English law. The law of tort came into Nigeria when English law was received into Nigeria by virtue of local statutes that permitted the application of English law in Nigeria. The English law which was introduced into Nigeria is made up of three aspects. These are:

1. The common law of England
2. Equity; and
3. The statutes of general application in force in England on January 1,1900.

Among the local statutes that received the laws of England for application in Nigeria were the Supreme Court Act 1914, the Interpretation Act and the High Court laws of the Regions. These Nigerian statutes received the English common law, equity and statutes  of general application, which were in force in England on January 1, 1900 and made them applicable in Nigeria. Later on, in the Western Region of Nigeria, the regional parliament enacted the Law of England (Applicable) Law and limited itself to receiving only English common law and equity. See section 3, Laws of Western Region of Nigeria, 1959.

This law made statutes of general application in respect of subject matters that were within the legislative competence of the Western Region parliament inapplicable to the Region. The Western Region parliament then re-enacted such English statutes of general application that were relevant for the region mutatis mutandis and made them part of its law to fill the gaps that would have been created.

It is generally agreed that the cut off January 1, 1900 date is applicable only to English statutes of general application and therefore bars English statutes made after that date onwards to this day, from application in Nigeria. Thus, the principles of English common law and equity which are current in England should apply in Nigeria as they are not affected by the January 1, 1900 cut off date. Provided that:

1. Such principle of common law is not in conflict with any Nigerian statute or case law on the subject matter; and
2. The jurisdiction of the relevant court permits it to apply English law, subject of course to the overriding power of the court in question to ascertain the current state of the law in England.

In the light of the fact that statutes made in England after January 1, 1900 are not applicable in Nigeria, the legislature at the Federal, State and local councils levels now have the full responsibility of enacting legislations to meet the needs of Nigeria and maintain parity with legal developments in other countries, especially common law countries, such as England and the rest of the Commonwealth of Nations.

In this wise, many statutes have been enacted by the legislatures in Nigeria. Some of these statutes are reproductions mutatis mutandis of the relevant English legislations after which they are modelled. Examples are the Defamation Law, Law Reform (Torts) Law, Fatal Accidents Law, Weights and Measures Act, Food and Drugs Act and the Consumer Protection Council Act to mention a few. (See Laws of Lagos State, 2003 and Laws of the Federation of Nigeria, 2004).

It is hoped that the enactment of statutes in Nigeria will be a pro-active, timely and responsive exercise, so that reform will continue to be made in deserving aspects of Nigerian law. For instance, in the law of tort, such as, in trespass to goods, liability for defective buildings and structures, etc.

The Sources of the Nigerian law of tort

The sources of the Nigerian law of tort are several. They include:

1. Common law
2. Case law; and
3. Statutes

We shall briefly examine these.

COMMON LAW

Common law or the common law of England is known and called by this name because it is the law which was common to all parts of England and Wales. It grew over time from the practices, customs and ways of life of the people. Therefore, common law is the general custom of the people of the United Kingdom. It is largely an unwritten law as opposed to statutory law which is codified.

The first common law judge was the king himself. He held court and sat as judge. The people sought justice at his hands. He was the dispenser of justice and the people reveried him. When the king became too busy by reason of state affairs to hear all the cases coming before him, he appointed members of his court or council to sit in judgment and minister justice on his behalf throughout the realm. Though the king was not physically present in the court-room, he was assumed to be there spiritually, guiding the hand of justice. Thus, any disrespect or disobedience to the judge was considered to be disrespect or disobedience to the king or the spiritual presense of the king. Thus, punishment of such contempt of court by the presiding judge was just as swift and as sure as punishment by the king would have been. See C. F. Padfield, Law Made Simple, 1978 5^th ed. p.11 and also Don R. Pember, Mass Media Law, 2^nd ed. p. 296.

Itinerant Judges and the growth of common law

The common law of England really started to grow as a result of the practice of the kings who appointed and sent out royal judges, on itinerary to dispense justice in the countries of the realm on his behalf and in his name. These itinerant justices went out from London to all of the kingdom on visits regularly, to dispense better justice which obtained the approval of the people.

The royal judges were usually nobel personalities, such as, bishops, barons, knights and other nobility and were appointed from the king’s council. These judges were mainly untrained in law and when they came to a country, they first of all had to ascertain the custom of the country, or community, which custom they then applied in the local country court to the cases brought before them. The judgments given in these cases were then enforced in the name of the king.

The complete formation of common law

On completing their regular circuits, the judges returned to the royal courts at Westminster, London and discussed the customs they ascertained from the various countries and the decisions they gave in the cases. As a result of sifting these customs, discarding those which were unreasonable and retaining those which were fair and using good judgment and reason, the judges over time arrived at a uniform body of custom law from these customs which commonly applied in the kingdom.

This uniform body of custom law, formed from the customs of the people is and has since been known as the common law of England. Common law continued to grow with the application of stare decisis, which means “let the decision stand”. Stare decisis is the practice of standing by an earlier decision and applying it to the new case at hand. Stare decisis is the application of judicial precedent whereby any legal rule or law rightly stated or formed in a new case was applied and followed by other judges in subsequent matters and problems of law which were similar to the earlier case sought to be followed as precedent.

English text writers generally agree that the formation of common law was completed around 1250 A. D. at which time Henry de Bracton (d.1268) wrote his famous book known as Treatise on the Laws and Customs of England. This book is regarded as the first exposition of a portion of this law of England. By this time, common law through application of judicial precedent had become more certain and predictable, thus acquiring the basic essentials of a good law which are certainty, uniformity and consistency.

However, with the possession of these qualities, new problems arose. Common law was inflexible and worked hardship in some cases, whilst it did not even provide redress for litigants in other instances. Thus, common law was inadequate to meet all legal problems. At this time, Equity, which was fairness, natural justice or good judgment, was then developed by the Lord Chancellor of England and his colleagues in the Court of Chancery, together with statute law, were brought in to act as a gloss to supplement and smoothen the hardships and fill in the gaps of the common law, thus making English law a more complete legal system. The common law of England has today reached all parts of the world, especially the Commonwealth of Nations which are sometimes referred to as common law countries, or common law jurisdictions.

SELF ASSESSMENT EXERCISE 1

Define common law.

CASE LAW OR JUDICIAL PRECEDENT

Case law or judicial precedent is law formed from earlier decided cases. It is law formed from the legal principles laid down in earlier cases. Thus case law or judicial precedent is the practice of following precedents or law laid down in earlier cases. In other words, case law is law based on the principle of stare decisis, that is, the practice of standing by and applying an earlier decision, provided that the case at hand is similar to the earlier case or cases sought to be followed.

In both civil and criminal cases, judges usually state the reasons for a decision, when giving a ruling or judgment. In future, when a case involving similar facts comes before a court, the judge will refer to the reasons for the decision in the earlier case. If the principle of law to be applied in the present case is the same, the judge will then follow the earlier decision, that is, the legal principles established in the earlier case. This practice of following the legal principles or law laid down in earlier cases that are similar to the case at hand, causes law to be more certain and uniform in application. The law so laid down in earlier decided cases is called case law, as opposed to statute law which is usually codified at the instance of the relevant law maker, or for instance, customary law which usually grows over time from the customs and ways of life of the people who are subject to the customary law.

The bindingness of case law

Likewise, the position in other countries, the judgments of the highest courts in Nigeria, such as, the Supreme Court at Abuja and the Court of Appeal which has several divisions sitting in various parts of the country, have from time always commanded the greatest respect. The general rule of precedence established long ago in England in the 19^th century and which is consistently observed in the Nigerian legal system, is that decision of the higher courts bind the lower courts. Thus the decisions of the Supreme Court which is the highest court in Nigeria binds all courts in the country.

The order of precedence or bindingness of case law

The order of bindingness of case law is usually according to the superiority of the court that decided the given case. The order of precedence or bindingness of decisions as it applies in the courts in Nigeria is as follows:

S/N	Name of Court	Courts bound to follow decision
1.	Supreme Court	All courts in Nigeria, but not itself
2.	Court of Appeal	Itself and all lower courts in Nigeria. However, it is not
	(The     practice    of     the	bound by its own decision in the following instances:
	English Court of Appeal	(a) It is free to choose between two conflicting
	as stated in Young V.	decisions of its own;
	British    Aeroplane    Co.	(b) It is not bound to follow its own decision, which
	(1994)      KB      718      is	though not overruled, but cannot stand with a decision
	applicable to the court.	of the Supreme Court; and
		(c) Finally, it is also not bound to follow its own
		decision which was given per incuriam, that is, a case
		decided based on its peculiar facts.
3.	High Court	Itself and lower courts.

 

4.

Magistrate Court

Their decisions do not bind any other court. Also, they are not bound to follow their own previous decision.

Courts of co-ordinate jurisdiction or equal powers

Courts of co-ordinate jurisdiction are courts of equal status or equal powers. Each division of the Court of Appeal is of equal status with another division of the Court of Appeal sitting in another part of the country, and each is not bound by the other’s decisions. But in practice, each court does pay attention to the rulings and judgments of the other and the decisions of each court has a strong persuasive influence on the other divisions of the court in order to ensure certainty and uniformity of the law. This position also applies to the High Courts. The High Courts, whether it is a Federal High Court or a State High Court are also courts of co-ordinate jurisdiction, equal power or of equal status.

Thus stare decisis, or the practice of referring to earlier decisions and drawing similarity from them to the present case, in order to reach a decision in the case at hand is known as the application of judicial precedent. The practice of judicial precedence leads to case law. Case law is law developed or formed from decisions reached in earlier cases.

Nigerian Judges and case law

In Nigeria, it is not the duty of judges to make law but to interpret and apply the law as it is. But in countries where case law in the strict sense of law making by judges obtain, it will be necessary to emphasis certainty and flexibility side by side, so that certainty will not lead to rigidity, while flexibility to create new law on the other hand should also not lead to uncertainty and thus hamper the development of the law to meet the needs of society.

Examples of case law or judge made law

Some notable examples of law making or case law arising from judicial decisions of judges in the law of tort are:

1. The Rule in Rylands V. Fletcher (1866) LR. 1 Exch. 265, (1861-1873) All ER 1. Affirmed in (1868) LR 3 HL 330. The case was decided by Blackburn J. as he then was. In this case, His Lordship in the English High Court laid down the law that a person who brings anything that is likely to do mischief onto his land or premises, is strictly liable for any injury caused by it if it
2. Donoghue V. Stevenson (1932) All ER 1. Where Lord James Atkin in the House of Lords established the concept of duty of care, when it exists and to whom it is owed. The duty of care as laid down by Lord Atkin in the law of negligence is that a person whose action is likely to cause harm, should be careful and conduct himself in such a way to avoid harm to

LEGISLATIONS

Common law and equity are important parts of Nigerian law. However, before and since independence, legislations or statutes have continually increased in power and coverage in Nigeria. Today, legislations are the main source of law making, reform and legal development in Nigeria, just as in other countries.

The National Assembly has power to make and repeal laws for the peace, order and good government of Nigeria, while the House of Assembly of a State has power to make laws for the peace, order and good government of a state. By means of legislation, successive governments have reformed and continued to affect more positively the social, economic and political life of the country. For instance, criminal law is entirely statutory and thus it is completely codified or written in Nigeria, so also are many aspects of civil law.

Legislations or statutes are usually enacted by parliament in writing, that is in written form and are therefore called written law, as opposed to the common law of England or customary laws in Nigeria which are not strictly in codified form or code law. However, common law and customary law are partly unwritten and partly written nowadays especially when it is written as part of the judgment or decision of a court.

Legislations are usually enacted in the legislature or parliament, such as the National Assembly or House of Assembly of a State, which are made up of the elected representatives of the people. In a parliament, the law has to be passed according to the prescribed legislative procedure stipulated in the Constitution. After the required number of readings and debate, some of the laws require at least two third votes of the total members to become law, whilst others require only a simple majority of votes.

The National Assembly in Nigeria is made up of two houses or chambers, that is, the Senate which is the upper house and the House of Representatives which is the lower house. Some legislatures have a single house, for instance a State House of Assembly in Nigeria. After a bill, as a law is first called, has been passed, it has to be sent to the President or the State Governor, as the case may be, who assents to it by subscribing or appending his signature to it and it becomes law.

Where the executive vetoes the bill by not signing it, the legislature may override the executive and on its own by the required two-third majority vote, pass the bill into law and the signature of the President or Governor as the case may be, will no longer be required. The National Assembly and State Houses of Assembly can enact statutes within the ambit of the legislative lists assigned to them by the Nigerian Constitution.

Legislations or statutes are known by different names depending on the legislature or law maker that enacted the statute or the government in power. In Nigeria, statutes or legislations include:

1. Acts and Laws
2. Decrees and Edicts
3. Bye-Laws; and
4. Delegated Legislations or subsidiary legislations,

Let us briefly examine these.

Acts and Laws

Statutes enacted by the National Assembly are called Acts, that is, Acts of Parliament; while statutes passed by a State House of Assembly are called Laws. However, any statute passed by a parliament, whether it is the National Assembly or House of Assembly of a State is known as an Act of Parliament. Various acts and Laws have been passed to regulate different aspects of the law of tort in Nigeria.

Decrees and Edicts

When a military government is in power, a statute passed by the Federal Military Government of Nigeria is called a Decree while a law enacted by the Military Government of a State is called an Edict. However, a military government in power may by law convert and deem specified decrees and edicts to be Acts or Laws respectively and from the date of such legislation making the conversion, the affected decree or edict are referred to as an Act or Law, such as was done by the government of General Ibrahim Babangida in the Laws of the Federation of Nigeria, 1990.

All decrees in the Laws of Nigeria 1990 are called Acts, even though most of the statutes were decrees of the Federal Military Government. Furthermore, when a democratic government assumes power, all existing decrees and edicts that are not abolished by the Constitution are deemed converted and are thereafter referred to as Acts and Laws from the day the Constitution takes effect.

Bye-Laws

Legislations passed by a Local Government Council are known as bye-laws. Many local government councils across the country have various bye-laws which have one thing or the other to do with the law of tort, especially with regard to cleanliness of premises, obstruction of public roads, etc.

Delegated Legislation

Apart from the above mentioned statutes, we also have delegated legislation. This is legislation made by some administrative officer, authority or body under power delegated or given to that person, authority or agency by the Constitution or other enabling statute permitting such administrative authority to make laws. Examples of administrative law makers or rule makers include, the President, Governors, Ministers, Commissioners, ministries, departments, public agencies, etc acting under appropriate enabling statutes which empower them to make delegated legislation.

Delegated legislation is also known as subsidiary legislation or subordinate legislation. Delegated or subsidiary legislation is usually controlled by parliament, in that the proposed orders or rules are supposed to be printed and laid before parliament which may then debate them and approve same for enforcement, amend or reject it. These subsidiary legislations when made according to the stipulated procedure are valid laws just as the parent statute itself.

Delegated legislation is an indirect form of legislation because they are laws made by persons who are not members of parliament. Delegated legislation may take various forms. These include:

1. Statutory instruments
2. Orders-in-council
3. Bye-laws
4. Regulations, rules, orders and directives
5. Rules of court, forms and precedents,

Annually, many statutes are passed by the National Assembly and State Houses of Assembly; and much subsidiary legislation especially in the form of rules and regulations are made pursuant to these parent statutes by various administrative authorities. See statutes contained in the Laws of the Federation of Nigeria, 2004 edition e.g Weights and Measures Act.

CONCLUSION

It is important in the knowledge of general principles of Law to be acquainted with the Sources of Law applicable in a particular country and locality. This is because the whole body of Law culminating in a proper reception of the Legal System is determined by the sources of applicable Laws.

SUMMARY

In this unit, we discussed the various sources of the Law of Tort, legislation and the Received English Law and Equity and Common Law.

TUTOR MARKED ASSIGNMENT

1. What do you understand by stare decisis?
2. What is delegated legislation?

REFERENCES

1. Bodunde Bankole; Tort: Law of Wrongful Conduct: Lipservice Publications (1998), Lagos.
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
6. The Criminal Procedure of the Northern States of