SOURCES OF NIGERIAN LAW
CONTENTS
1.0 Introduction
2.0 Objectives
- Main Content
- Local
- The Constitution/Legislative
- Case Law/Judicial Precedence
- English Law.
- Customary Law.
- International
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
INTRODUCTION
Nigeria like other country is governed by legislation, rules and principles, all aimed at establishing and sustaining an orderly Nigerian society. It is however, pertinent at this juncture, having looked at the meaning and nature of Nigerian legal system, to study the various sources of what is today referred to us as Nigerian law. But the expression “sources of Nigerian Law” is capable of bearing several meanings depending on the context in which it is used. It could mean either the starting point of Nigerian law or the place from which the law can be got, i.e, the literal or material source, the historical sources, the formal sources or the legal sources of a rule of law. But it is of largely shaped by our Colonial Masters namely, Britain. Prior to the amalgamation by Lord Lugard in 1914, there existed three distinct administrations in the geopolitical entity that is today known as Nigeria. Therefore, Nigerian law sprang from two principal sources, namely (a) The Received English Law, and (b) Indigenous Sources.
OBJECTIVES
In this unit you are expected to understand fully:
- The history and sources of Nigerian law
- To distinguish between Common law and Constitutional law
- To know types of laws
- To be able to know Case laws
- To differentiate between Decrees and Acts
- To be able to differentiate the 3 Legislative Lists
MAIN CONTENT
Local Legislation:
The laws made by the Nigerian law making authorities like the Federal and State Legislatures to a large extent constitute source of Nigerian laws. Considering the political history and constitutional framework of legislation in Nigeria, Legislations can be classified as:
- Ordinances: These were Legislations passed by the various Legislative authorities in the country during the colonial era prior to October 1,
- Laws: These are enactments made by the legislature of a Region or a state or having effect as if made by that legislature during a civilian regime. They are often called Laws of the States.
- Acts: These are legislations made or deemed to be made by the Federal Legislature of a civilian government. They are often called Acts of
- Decrees: Are laws by the Federal Military Government under the various Military Governments that the country has
- Edicts: Are laws made by the various State Governments in a Military dispensation. Such laws are signed by the Military Governors/Administrators.
- Subsidiary Legislations: The Parliament, though charged with the duty of law making, often finds it difficult to discharge its duty exclusively because it has so much to do and so little time within which it can be done. This difficulty is overcome by Parliament delegating its legislative authority to administrative bodies and other agencies within or outside the executive arm of government. Laws by such bodies and agencies are referred to as subsidiary or delegated legislations and they are usually made in form of Rules, Orders, Regulations and Bye-laws.
SELF-ASSESSMENT EXERCISE 3.1
State and explain the various classifications of Legislations.
The Constitution/Legislative Competence:
In a civilian regime, the Constitution is regarded as the primary law of the land and the source of all other laws. For instance the Constitution of the Federal Republic of Nigeria 1979 in Section I as well as 1999, proclaimed its supremacy over all other laws and provided further that where any other law is inconsistent with the provision of the Constitution, that law is null and void to the extent of its inconsistency.
The 1979 and 1999 Constitution respectively, also recognized that Nigeria is a Federation and in that regard, the unique feature relating to division of legislative powers in a Federal system like ours is contained in these Constitutions. The various legislative powers are identified and classified under 3 lists.
The lists are:
- Exclusive Legislative List: Only the National Assembly can legislate upon matters contained in this list. Examples of such matters are armed forces, defence, police affairs, external affairs, currency,etc
- Concurrent Legislative List: Both the National Assembly and State House of Assembly have competence to legislate on matters contained in this list. Matters here include Education, Health; Assembly may conflict in respect of the matters contained in this list. In such a situation, Section 4 (5) of the 1999 constitution provides that the provisions of the Federal Act shall prevail and the State Law will be null and void to the extent of its inconsistency with the Federal Act
- Residual List: All other matters that are not mentioned either in the exclusive or concurrent legislative list fall within the Residual List and are exclusively reserved for State Assemblies.
Position under the Military
A Military regime is not a democratically elected government within the provisions of the Constitution. So there is a strong tendency to see such a regime as being unconstitutional or illegal. Section 1 (2) of the 1999 Constitution by implication declared Military government an illegal government. However with the coming into power of any Military regime, the first task they are faced with is suppressing the supremacy of the Constitution especially the provision that prohibits modernization of Nigeria by Military Government. They would also make law to legalize the illegal government.
Therefore, while the Constitution of the Federal Republic of Nigeria is supreme under civilian regime, however, under Military regime, the Military Decree is supreme.
SELF-ASSESSMENT EXERCISE 3.2
Within the Nigerian context are the various classification of legislative powers adhered to.
Case Law/Judicial Precedent:
Judicial Precedent or Case Law refers to the law as derived from the previous decisions of courts.
The judiciary is traditionally vested with the power to interpret laws made by the Legislature. But since the pronouncements of courts in cases are regarded as authoritative, they are binding on the parties to those cases and therefore laws. The doctrine of Stare decisis- (Let the decision stand) give the concept a wider application to subsequent cases similar in nature to the issues involved in previously decided cases.
It is not everything said by a judge in the course of his judgment that constitutes a Precedent. Only the pronouncement on law in relation to the material fact before the judge constitutes the precedent. A Judicial precedent is therefore, the principle of law on which a judicial decision is based. It is the Ratio decidendi (i.e. the reason for the decision).
Therefore, when a court is called upon to apply the decision in a previous case, the court is expected to follow that part of the previous decision, which represents the ratio decidendi. This is the portion of the decision based on the actual facts of the case. But the other parts of the decision, which are not based on the facts of the case, are referred to as Obiter dictum (i.e things said by the way) meaning those words delivered by a judge, which are not essential to his decision. They are pronouncements of law on hypothetical situations; as such they are not binding precedent on a subsequent court.
SELF-ASSESSMENT EXERCISE 3.3
Explain what in the course of judgment constitutes a Precedent.
English Law:
The English laws which comprises Acts or Orders-in-Council that are applicable directly to Nigeria are statutes of General Application, the Common Law and doctrine of equity.
The Received English law is part of our colonial legacy. Following the Berlin Conference of 1884-1885, which was summoned by the Chancellor of Germany, Otto von Bismark, Britain was empowered to control the coast from Lagos up to Calabar. Therefore, prior to the year 1900, laws that were enacted and passed for Britain in the British Parliament were applicable to Nigeria as a British colony. “With the result that laws that came into existence at the time Nigeria was not even in contemplation as a country, still apply to this country up to this day.”
These laws are referred to as Statutes of General Application. Statutes of General Application, which were in force in England on January 1, 1900, apply in all the states of the Nigeria Federation except in the states in all defunct Western and Mid-Western regions.
Therefore, common law and equity remain important parts of Nigerian law, however, before and since independence, legislations, or statutory enactments have been on the increase in power and coverage.
SELF-ASSESSMENT EXERCISE 3.4
The Received English law is part of our colonial legacy. Explain.
OTHER SOURCES OF NIGERIAN LEGAL SYSTEM
- Customary Laws: These laws must undergo three validity tests
- That is not repugnant to natural justice, equity and good The following cases are applicable here:
- Edet vs Essien(1932) 11 L.R.47
- Re Effiong Atta(1930) and
- Mariyama v. Sadiku EJo(1961) N.R.N.L. R 81
- That must not be incompatible either directly or by implication with any law for the time being in force. In this case see: Taiwo Aoko v. Fademi (1961) 1 ANLR.400, Adesubokan v. Yinusa (1971).
- That must not be contrary to public polic In this case see: Cole V. Akinyele (1960) 15 WACA 20.
International Law
International law, on the other hand, is the law that binds respective States and regulates their mutual co-existence and relationship. The sources of international law include international customary practices, Treaties, Bilateral agreements and Conventions. While individuals or juristic persons are the main subjects of municipal laws, international law deals primarily with States.
CONCLUSION
At this juncture, it is important to restate the fact that there is no human society in this modern age that is not based on law. It must be stated however, that any piece of legislation or a body of rules and principles that is not enforced is as good as nothing. What is important about rules is their actual observance/application since they are of little value if they are not the active instruments used in the regulation of the activities and behaviours of man in society.
Therefore, to have viable legal system within a defined area, there must be in place certain ultimate principles from which all orders are derived but which are themselves self-existent.
SUMMARY
Nigeria, under British colonial rule, derived legal authority from the Queen in Parliament. But within the attainment of independence in 1960, and subsequently under the Republican Constitution of 1963, this umbilical cord was severed and the Constitution became the basic law for Nigeria. In fact, section 1 of that Constitution contained the following declaration:
This Constitution shall have the force of law throughout Nigeria, and subject to the provisions of section 4 of the Constitution (granting Parliament the power to alter the Constitution) if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Thus, the bulk of our laws today, are in the form of Statutes. The codification of our criminal law, exemplified this.
TUTOR MARKED ASSIGNMENT
- What is Judicial Precedent?
- Define English law
- Differentiate the following:
- Acts from Laws
- Decree from Edicts and Bye-laws from Delegated Legislation
REFERENCES/FURTHER READINGS
Anozie M. C., (1998) - Notes on Nigerian Constitutional Law, Enugu, Professional Business Services.
Frank J., (1973) - Courts on Trial, New Jersey, Princeton University Press Pack,
Jimmy Chijioke, (1998) - The Eggheads Business and co-operative Law Study Abuja.
John Ohireime Asein, (1998) - Introduction to Nigerian Legal System, Ibadan, Sam Bookman Publishers.
Okonkwo C.O. ed, (1980) - Introduction to Nigerian Law, London, Sweet and Maxwell.
Nnanyelugo Okoro and Aloysius – Michaels Okorie, (2004) - Law, Politics
and
Mass Media in Nigeria, Nsukka, Prize Publishers Ltd.