Nigeria Legal System I (PUL 211) Made Easy

FACULTY OF LAW

DEPARTMENT OF PUBLIC LAW

UNIVERSITY OF BENIN

BENIN CITY

NIGERIA LEGAL SYSTEM 1 (PUL 211)

MADE EASY

BY

COMRADE ISAAC O. WISDOM

+2348038633131, +2347058159993.

[email protected]

OCTOBER 2016

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COURSE OUTLINE

1. Definition of Law
2. Functions and Classification of Law
3. Idea of Legal System
4. Sources of Nigerian Law
5. Application of Customary Law
6. Internal Conflicts between English Law and Customary Law
7. Hierarchy of Courts in Nigeria

COURSE OBJECTIVES

The main aim of this course is to introduce the students to the study of the sources of Nigeria law
generally, to acquaint them with the machinery for the administration of justice in Nigeria and to further
the students’ ability to understand the problems and concept of substantive law by elucidating the
judicial process. Emphasis should be placed the interaction between various arms of our Legal System
and the social context which the legal system is supposed to serve.

Recommended Texts

1. Akintunde Olusegun Obilade. – The Nigerian Legal System

2. A.E. W. Park – Sources of Nigerian Law
3. Niki Tobi - Sources of Nigerian Law
4. Osaretin Aigbovo – Introduction to Nigerian Legal System
5. Ese Malemi – The Nigerian Legal System
6. Asein John – Introduction to Nigerian Legal System
7. Edo State High Court Civil Procedure Rule

Course lecturers
1. Dr. Osaretin Aigbovo
2. Barr (Mrs) Eunice O. Erhagbe
Course editor: - Comrade Isaac O. Wisdom

Qualifications: B.Sc. Political Science & Public Administration – University of Benin,

B.Sc. Criminology & Security Studies – National Open University of Nigeria.

LLB in view – University of Benin.

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DEFINITION OF LAW

It is imperative to state from the outset that there is no universally accepted definition of the
concept of ‘law’. Rather legal scholars and jurists have defined the term in their own ways. Attempts to
have a common definition have proved elusive, however there are definitions. Some of the dictionary
definitions of law are;

1. Law is a method of regulating human conduct by means of rules imposed by a politically organized
society.
2. Law comprises the body of rules which a State or Community recognizes as binding on its members or
subjects.
3. Law is a rule of conduct imposed by authority or accepted by the community as binding.

DEFINTIONS BY EARLY WRITERS

1. Salmond defined law as the body of principles recognized and applied by the State in the administration
of justice. In other words, the law consists of the rules recognized and acted on by the court of justice.
2. Goodhart defined law as those rules of conduct on which the existence of society is based and on which
its violation tends to invalidate its existence.
3. Elias defined law as the body of rules in a community and which are recognized as obligatory by its
members.
4. Jegede sees law as a body of rules binding on members of the society either as individuals or as a group,
and is enforceable directly or indirectly by institution created for that purpose within the society.

From the above definitions, the following characteristics of law can be identified, viz;

i. Law is a body or system of rules

ii. Law is for the guidance of human conduct.
iii. Law is imposed by prescribed authority.
iv. Law is enforceable.

The lack of a universally acceptable definition of law gave rise to the different schools or theories
of law. Some of these schools would be discussed below.

SCHOOL OF LAW OR THEORY OF LAW

There are several theories concerning the origin of law. A theory is a set of interrelated variable
designed to explain social and organizational phenomena. A theoretical viewpoint governs the way a
social phenomenon is seen and understood. Where law came from and why it developed as it did are
question that can be approached by using theoretical perspective of different writers. The various beliefs
of writers on law have come to be known as ‘philosophies of law’, schools of law, ‘schools of
jurisprudence’, or ‘theories of law’.

The following school of law shall be discussed below:

1. Natural Law School

2. Historical School of Law
3. Utilitarian School of Law
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4. Sociological School of Law

5. Realist School of Law
6. Positive School of Law
7. Pure School of Law
8. Functional School of Law
9. Law as a Union of Rules

NATURAL LAW SCHOOL

This school of law contends that law should have human face. The chief proponents of this
school of thought include Zeno, Thomas Aquinas and Grotius who contend that natural law might
originate from people’s rational sense or capacity. The natural law school is concerned about ‘fairness’,
‘justice’, ‘human rights’, ‘morality’ as well as ‘equality’. For example, the fundamental human rights
provisions as entrenched in the constitution of Nigeria take its base from the natural law school.

The protagonists of this school of thought contend that there are certain objective principles in
every man, irrespective of his race or colour which tells him what is ‘fair’, ‘just’ or ‘right’; motivating
him to do what is good and abstain from what is evil. This can best be called conscience.

The natural law school further posits that there are certain generally accepted fundamental
principles inherent in human existence and all social groups. These principles according to this school of
thought stem from some supernatural force or abstract universal truth and exist irrespective of any
human enactment.

The natural law is founded on the idea that man’s nature may be corrupt and sinful, but he still
possesses a natural virtue. He knows the good to be done and the evil to be avoided.

Okunniga illustrates the natural law theory by saying; “if ten men from different countries are
put in separate rooms and each of them is asked in the language that he understands, whether it is good
to steal, majority will say no”. These external principles telling man what is good, fair, just, right or
moral is referred to as natural law.

The natural law principle can be deduced from nature. That is, from the nature of man, from the
nature of society, even from the nature of things, through reasoning. If man observes these natural
principles in the course of formulating laws, the law made by man will be in tandem with that of nature
and the outcome of the law will be good, fair, just or right and will gain the easy acceptability of the
people and will command their obedience.

The natural law philosophy is the basis for the development of the concept of equality, human
rights, democracy, etc. The decolonization of countries from the control of their colonial masters was
championed invoking these principles.

The most prominent appearance of natural law in the twentieth century is the post World War II
trials of Nazis for their systematic murder of millions of Jews and other persons belonging to races
which the Nazis regarded as inferior. At the trials of the Nazis war criminals in 1946, many of the
defendants set up the defence of obedience to superior orders. But this defence was rejected on the

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ground that the laws or orders of Hitler were so inhuman, unjust and so evil that the defendants ought to
have refused to obey.

Natural law philosophy emphasises what ought to be done and not necessarily what is done. But
by contrast, in practice, the judiciary interpret the law according to what the law is, and the executive
enforce the law according to how it is stated and not how it ought to be.

Weaknesses of the natural law school

a. One of the weaknesses of the natural law school is what is termed “the multiple conscience problem”.
The concepts of ‘fairness’, ‘rightness’, equality, morality or ‘justice’ can only be viewed in relative
term. Different people will view these concepts from different perspectives. What Mr ‘A’ may regard as
‘fairness’, ‘rightness’ or ‘justice’ may be viewed by Mr ‘B’ as ‘unfairness’, ‘wrong’ or ‘injustice’ Two
people who are equally religious can both say that they are acting according to natural law even though
they are acting at cross purposes.
b. This philosophy can lead to anarchy if everyone is left to act according to the notion of what is ‘right’ or
‘just’ to him as dictated by his reasoning without any formal sanction. Little wonder that in practice, the
courts interpret and enforce only the laws that are written. That is, interpretation of the law according to
what is (which is man-made law) and not what ought to be (which is natural law).
c. Another weakness inherent in the natural law school of thought is that right reasoning which natural law
philosophers based their criteria for perfect law cannot be verified through empirical or experimental
scrutiny. Therefore, what is considered as right reasoning most time is defined by the interpretation of
the most powerful individuals in the society, or even the person defining it.
d. People can guise under natural law to do what is wrong while claiming that it is the right thing to do. For
example, natural law has been used to explain almost every ideology ranging from absolute tyranny to
democracy, slavery, colonialism, apartheid, liberation struggle, etc. This is why this philosophy has been
described as ideological harlot.

HISTORICAL SCHOOL OF LAW

The historical school of thought was developed to counter the widespread influence of the
natural law school in the 17th and 18th century across Europe. Friedrich, Carl Von Savigny,
Montesquieu, Hegel and Kohler all played prominent roles in developing this theory.

The Historical School of Law believes that law is a product of historical development. This
school of law contends that before any law can qualify as law, it must be in tandem or accord with the
spirit of the people. The spirit of the people is the way of the people, that value system, cultural norms,
tradition or practices which bind the people together and distinguish them from any other persons. The
spirit of the people refers to that which the people hold dear and what they accept and want to bind
them. For instance, a Nigerian has a ‘National Spirit’ which makes him think that he is a Nigerian and
not a Ghanaian and vice versa.

According to the protagonist of this school of thought, law is found and not made and therefore
legislation is less important to culture. This school of law stressed that before a law is made for a
society, there is the need to have proper understanding of the history or spirit of the people so as to make

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the law valid and acceptable. Any law that is not in tandem with the history and way of life of the people
may not achieve its aims and objectives.

A major triumph of the Historical School of Jurisprudence in Nigeria is the non observance of
the law against bigamy which is openly flouted as it is against the spirit of the people. The spirit of the
people recognises polygamy. Another law which is openly flouted is the law against female genital
mutilation which was passed by the Edo State House of Assembly in 1999.

According to this school of thought, law should be a formal restatement of the custom prevalent
in the society and should originate from customs since rules of customary law are rational and fair.

The historical school stood for stability and evolution and de-emphasised revolution or violent
change as did natural law school.

Presently some laws accord with the Historical School of thought. For example, the Bills of
Exchange Act of 1990 especially section 13 of the Act took its base from this school of thought. Also
customary law as a custom accepted by members of a community as binding among them can also be
traced to this school of thought.

Weakness of the Historical Law School

1. One of the problems inherent in this school of law is that since social custom which later should
metamorphosed into law takes time to develop, it becomes difficult to pinpoint what is law and what is
not, and at what point a particular custom should become law, or how long people must engage in a
practice before it is regarded as law.
2. Another problem inherent in this school of thought is the difficulty in knowing how pervasive,
widespread, ubiquitous or prevalent the practice of a custom must be among the people before it is
regarded as law.
3. It is also difficult to say when the “spirit of the people” changes so as to know when a customary rule
loses its acceptability and need change.

UTILITARIAN SCHOOL

The chief proponent of the Utilitarian School is Jeremy Bentham. This school of law contend
that law should have utility. Utility in this context means that which affects people’s happiness.

To him, proper laws are those which promote the greatest happiness for the greatest number.
According to the proponent of this school of thought, all laws made by the legislature must be judged by
this standard, and any law that does not promote the greatest good for the greatest number is not a
proper law.

Jeremy identified four main utilities, these include; security, liberty, equality and abundance.
According to him, security comes first of all these utilities followed by liberty while the remaining two
(equality and abundance) come last.

For the law to achieve its objective there is the need for a balance between the individual’s
interest and the collective/communal interests. The individuals must sacrifice their interest for the
communal interest. That is, self interest must be sacrifice for the benefit of all. For example, the law
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could allow security officers to search the premise of a person suspected to be dealing on narcotic or
arms. Also, air travellers could be subjected to security checks at the airports as a matter of routine
without any suspicion. This is for the collective security of all passengers on board the aircraft. It is to
ensure the greater good of security for a greater number of people and the society at large.

Weakness of the Utilitarian Law School

The only weakness of this school of thought is its inability to solve the problem of how the
balancing of both individual and communal interest can best be achieved.

POSITIVE LAW SCHOOL

The word ‘positive law’ is derived from the word ‘posit’ which means “to put or to place”.
Positive law is therefore the law put, placed, or imposed upon the situation by the ruler. Positive law is
any law made by one who is legally empowered to make law which have binding effect on the
generality of the people.

The proponents of the positivist school are John Austin and Thomas Hobbes. According to the
proponents of this school of law, the law is nothing but what the sovereign says it is.

According to the positive law thinkers, the constitution, the statutes enacted by the legislature,
case laws made by judges, ordinances, rules and regulations made by administrative agencies, if legally
made, would be the law and should be obeyed without question. In other words, any authoritative law
maker, acting within the scope of its law making authority must be obeyed. To the positivist therefore,
the laws made by Hitler are as just as those made by the British parliament if the laws were made
according to the rule of law making, and should be obeyed without question.

John Austin propounded his ‘Command Theory of Law’ in his celebrated but controversial
book “The Province of Jurisprudence Determined”. In the book he defines law as a command set by a
political superior being to political inferior beings which is enforceable and the violation of which
attracts sanctions. The superior being in this context is the sovereign while the inferior beings refer to
the subjects.

The sovereign authority may be vested in one person, a group of persons (parliament). This
school of law posits that if there is no strong man (the sovereign) who is conferred with the power to
rule, there will be anarchy in the state.

Austin did not think that positive law can be illegal in the sense of not conforming to notions of
fairness or rightness. To him positive law cannot be regarded as illegal because to do so would amount
to challenging the authority of the sovereign. But Austin failed to recognise that if the law maker
(Sovereign) goes beyond the law making authority conferred on it by the mandate, then a law made
thereby could be illegal. For example, in a Federal System of Government like that of Nigeria and the
United State of America, the Supreme Court can declare a law made by the legislature null and void if
the constitutional guidelines for law making are not followed.

Thomas Hobbes in his book “Leviathan” advocated positive law. The motivating factor behind
Hobbes’ advocacy of positive law is the need to promote order and protect public peace and safety. To

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him therefore, a society without positive law would be tantamount to living in a state of nature where
life was solitary, brutish, nasty, poor and short. ‘Might’ would become ‘Right’ in such a state.

One positive virtue offered by positive law is stability. As pointed out by Thomas Hobbes, a
society without positive law is a society without order, unstable society. Modern society cannot do
without positive law that is backed with sanctions for disobedience.

Criticisms against the Austinian definition of law

The contentions of the positive law school have come under serious criticisms on many grounds.
These include;

a. This school of law has been criticised for divorcing law from morals. The contentions of this school of
law automatically renders legitimate for example apartheid law which discriminated on the basis of
colour.
b. Also the positivists would regard for example anti-Semitic laws made during Hitler’s Third Reich (that
is, Nazi state between 1933 and 1945) as legitimate laws. Consequently, the defendant at Nuremberg (a
city in Bavaria, Southern Germany) had a good defence since they were obeying laws properly made by
the authority mandated to make such laws.
c. Another problem with this school of law is absolutism. The exponents of the natural law school of law
have criticised the positive law school on the ground that the sovereign may not in all cases be moral, he
possibly could be a dictator, as such could make obnoxious law which the subjects are bound to obey as
was the case in Nazi Germany between 1933 and 1945.
d. Laws are not always phrased or expressed in an imperative language such as “shall” or “shall not” as
propounded by Austin. While some laws, especially some aspects of constitutional law may appear like
commands, it is not correct to say that all laws are command. For example, rules relating to ‘Wills’ do
not compel the testator to make a ‘Will’. Rules relating to Marriage do not also compel the person
contracting a marriage to do so under a particular law. The individual can choose to marry under the
Marriage Act, customary law, or the Islamic law.
e. Austinian definition of law is an advocacy of dictatorship or totalitarianism. To the Austinian school, the
law is what the sovereign says it is. This means that every law made by the sovereign must be obeyed
whether the law is good or evil. He therefore projects the sovereign in an authoritarian form.
f. Austinian definition of law failed to recognise the various forms of political system such as be
monarchy, oligarchy, or democracy. His definition is tailored along the authoritarian form of rule
without regard to democratic or other forms of rule.
g. The idea of an ‘uncommanded commander’ is only possible in an absolute dictatorship where the
society is governed not by law but according to the dictates of the ruler. Austinian school fails to
acknowledge that nobody is above the law even under military regime as every law made must be in
accordance with the lay down rules of the land and anything short of this may be declared ultra vires.
h. Austin’s assertion that everybody usually obeys the law because of fear of sanction is fallacious. Many
obey the law not because of sanction but because it is in tandem with their normal way of life or because
they see it as logical and agree with it in principle. For example, not everyone refrains from committing
murder because it is punishable under the law but because they are not predisposed to killing their
fellow human being. The existence of laws most times does not stop some individual from committing

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crimes. Some individuals are predisposed to committing crimes, so, they must willy-nilly commit
offence notwithstanding the sanctions that accompany such wrong.

SOCIOLOGICAL SCHOOL

The only difference between the historical school of law and the sociological school of law is
that while the historical law school emphasises custom, the sociological law school on the other hand
emphasises the social rules which must be present before any law can be regarded as law.

Sociological jurisprudence witnessed a rapid growth from the mid 19th century into 20th century.
Eugene Ehrlich was the proponent of this school of law and most prominent out of the European
sociological jurisprudents. From the Western side of the Atlantic is Roscoe Pound. These are the two
exponents associated with this school of thought.

Eugene contends that law is based on what he termed ‘fact of the law’ which means how people
acted, in other words, norms or conduct. He posits that relationship exists between law and conduct and
that each affects the other. He added that the people’s conduct shapes the law. In other words, it is not
the law that determines how the people in the society conduct themselves, rather it is the conduct of the
people in the society that determine the kind of law that should be made for the society. If law is not in
line with the popular conduct, such law will not be effective as instrument of social control. In effects,
law should be made to reflect the values and conduct of the people within the particular society.

He argued that law barely change the conduct of people when he cited example with the fight
against corruption. He argued that despite the anti-corruption laws, there is still no significant change in
the disposition of public officer toward corrupt practices. For example, one could still see some
members of the Nigeria Police Force extorting motorists by openly collecting money from them on
check points.

Ehrlich’s ideas are similar to that of Savigny’s historical school view of law. For example,
Ehrlich contended that people’s conduct shapes the law. Similarly, Savigny contended that custom
determines the law.

However, Savigny and Ehrlich’s ideas are distinguishable. While Savigny emphasised the spirit
of the people, custom and tradition which are matters occurring over a relatively long time, Ehrlich
emphasised norm which can be very transitory.

On his part, Roscoe Pound, an American and former Dean of Harvard Law School had a
different sociological view from that of Ehrlich. The core of Pound’s theory is on balancing competing
claims in the society. His argument is that societal resources are limited and there are competing claims
or struggle for this limited resources available for the use of the society. He therefore advocates a stable
way of balancing or satisfying these human wants in such a manner that will result in least harm or
causing the least disruption to the established institutions especially the court system. Although, other
organs of government can equally use the balancing notion of Roscoe Pound. This balancing theory has
found favourable reception in the law courts as a means of resolving conflict.

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Criticisms against the Sociological School

The following criticisms have been levied against the sociological school, viz;

a. The claim by Ehrlich that conduct influence the law has been denied by critics who argued that there are
instances where laws influence conducts and not necessarily the other way round.
b. Another shortcoming of the Ehrlich sociological theory is that it is difficult to determine the extent to
which conduct influence law
c. Ehrlich philosophy denies formal sources of law of any creative value. It is risky to “go with the flow”
especially where there is law that penalises a particular act or conduct. There is always the possibility of
making someone a scapegoat to teach others lesson. In such situation, it will not be tenable to say that
every other persons are breaking the law, therefore you did.
d. While the core of Roscoe Pound is on balancing competing claims in the society, he failed not only to
identify these interests/claims, but also to provide a scientific method of balancing these competing
claims in the society.
e. Roscoe Pound place much emphasis on stability as the notion of balancing suggests. His idea seems to
give more weight to the value which would prevail rather than what is right or fair. For example, under
the Pound’s balancing approach, liberty could give way to security.
f. Pound’s approach seems to encourage short term planning than long term planning by advocating the
satisfaction of the needs that are immediate.

THE REALIST SCHOOL OF LAW

The realist school originated from America and most of the scholars in this school of law are
jurists. The exponents of the American realism include Oliver Wendell Holmes, Justice Jerome Frank,
John Chipman Gray and Karl Llewellyn.

The proponents of this school of law posit that the law is nothing but what the judge says it is. It
is the prophecies of what the court will do in a given circumstance and nothing more pretentious, is the
law. Accordingly, until a rule is subjected to interpretation, it cannot be said to be a law.

In their analysis of the concept of law, the realists focussed mainly on the court system
particularly trial courts with the ultimate objective of reforming the judicial system. The emphasis here
is on the practical application of the law and the dissemination of justice.

The realists contend that in the analysis of law and the legal system, too much emphasis is placed
on mere legal rules neglecting the human factor in the application of the rules to specific cases.

The realists argued that the judicial process is not an objective process as it may look in the
books. This means that in the dispensation of justice, the judge and jury do not rely strictly and only on
what the law says in the books. They rather argued that beyond the evidence and arguments adduced by
the parties at the trial, the judge and jury are equally influenced by other extra legal factors.

The realists contend that judges usually have preconception of the outcome of a matter even
before the actual judgment (prophecies).

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The realists believe that judges are unconsciously influenced by such extra legal factors as their
way of life, their social and educational backgrounds, basic likes and dislikes, dress, skin, colour and
age, that the judges have the predisposition and tendency to interpret precedents and personality of the
accuse and his lawyer. For example, the attitude of a judge to a criminal case involving a lawyer who is
a professional peer of the judge may be quite different from his attitude in a criminal case involving a
social miscreant popularly known as ‘area boy’.

Justice Jerome Frank developed his view from observing trial courts decisions while serving as a
federal appellate court judge. So, his claim was based on experience.

The realist attacked all inequities, biases, injustice, unfairness and imbalance in the legal system.
One of the goals of this school of thought is to make judges to be aware of their hidden prejudices and
encourage them to be objective in deciding judicial matters. The realists want the judicial system to
avoid bias in favour of the “good boys” and against the “bad boys”

PURE SCHOOL OF LAW

The pure theory of law as a school of thought was postulated by Professor Hans Kelsen. This
school of thought is similar to the positivist school or command theory by John Austin.

For Kelsen, law is a system of norms which must be obeyed. A law is valid if it has been created
by a norm which itself has been created by a higher norm within the legal order. The logical connection
of norms will continue in this order until we arrive at a non-law created entity which is called the
grundnorm. In effect, law is organised into layers headed by the basic norm. All other norms must
conform with the basic norm for them to be valid.

While every other law is created by grundnorm and their validity traceable to it, the origin or
validity of the grundnorm is not traceable to any norm.

Thus, the law forbidding the killing of another person in certain circumstances (murder) is valid
because it is laid down in the Criminal Code. The Criminal Code is valid because it was enacted by the
legislature. The law made by the legislature is valid because the legislature has been constituted and is
functioning in accordance with the relevant laws, the Constitution. The constitution is valid because it
has been promulgated into law as the Act of the people.

Criticisms against the Pure Theory of Law

The Pure Theory of Law has been criticised on the following grounds, viz;

a. Firstly, the emphasis of the theory on the formal validity of law rather than its functions and effects in
the society is an implicit advocacy for dictatorship and totalitarianism. The theory does not concern
itself with the content of the law, whether it is just or not, moral or immoral. As far as the theory is
concern, any role that satisfies the formal criterion so selected would be regarded as law even when it
fails to address the issue that borders on the existence of human kind.
b. Secondly, it is not easy if not practically impossible to determine or locate the grundnorm in the modern
society. The imagination that the Constitution is the grundnorm is only legal fiction because it can be

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probed further. Who create the constitution? In the context of the Nigerian experience, is it the Military
or the people?
c. Thirdly, the assertion that the constitution is the grundnorm may hold good only when there is abiding
faith in the legal order. During a revolutionary change of government, the validity of a norm will depend
on the effectiveness of a legal order and not the constitution. As soon as the grundnorm ceases to
command the maximum effectiveness, it is no longer the basis of the legal order. For example, during
military coup d’état, if the coup is successful, the new government will suspend certain aspect of the
constitution which it perceives to be at variance with military rule and to pave way for the Command
Structure of the Military Government.

FUNCTIONAL SCHOOL OF LAW

The Functional School is an offshoot of the Sociological School. The functional school is
founded on pragmatism. The school considers law from the stand point of view of what the court will do
with respect to a particular legal problem.

The idea was best expressed by the distinguished United States jurist Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes a former justice of the Supreme Court of the U.S. viewed law from the point of
view of the ‘bad man’ saying that the bad man does not give ‘two hoots’ about legal theories; all he
cares is what courts will do with respect to a particular matter.

It is sad that sometimes laws fail to address the problems it is meant to address perhaps because
such laws were not properly and clearly enacted by the legislatures. The onus of making law sometimes
falls with the judiciary especially when the legislatures have either not spoken or have spoken
ambiguously. This is why most time parties in dispute cannot categorically state the possible outcome of
any matter before the law court until the judiciary clarifies the position of the law concerning such
matter.

The functionalist belief is that notwithstanding what is contained in the statutes and decided
cases, one has to wait for a court decision on his instant case or exact legal problem before he can know
what the law is. Implicitly, the law is what the judiciary says it is.

Weakness of the Functional School

One of the shortcomings of the functional school is that it focuses on the court alone as a law
making body and neglects the legislature and administrative agencies. Such a parochial view of the law
is misleading because the court itself is created by the law.

LAW AS A UNION OF RULES

Some writers have however adopted a mid-way approach to the idea of law. One of such writers
is Herbert Lionel Adolphus Hart who offered a concept of law as a union of primary and secondary rule.
Every legal system has the basic or primary rules of obligation to which people conform.

In every society, there is the primary as well as the secondary rule. There must be primary rule to
validate the secondary rule before it can be said that there is law. The proponents here do not wish to
support or condemn any of the schools of law.

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Even though H.L.A. Hart in his treaties “The concept of law” was primarily interested in the
classification of the general framework of legal thought rather with criticism of the law or legal policy,
he ended up criticism the natural law school and the positive law school. He was particularly against the
positivist idea of command theory propounded by John Austin. From Hart’s writing, it is obvious that he
was more at home with or in support of the natural law school of thought than the positivist school of
thought.

Hart offered a concept of law as a union of the primary and secondary rules in a legal system.
These rules according to him are the elements of law. He contended that a legal system must exhibit
some specific conformity with morality or justice, or must rest on a widely diffused conviction that there
is a moral obligation to obey it.

However, these rules existing on their own have some shortcomings. The problems with these
rules (primary and secondary rules) existing on their own are that in society with primary rule:

1. Only a small community, closely knitted by ties of kinship common settlement and belief and
placed in a stable environment could live successfully by such rules. Invariably, when the
community is large, there would be uncertainties as to what the rules are. The only remedy for
the uncertainty of the regime of primary rules is the introduction of a “rule of recognition”.
2. Primary rules are static and the only mode of change in the rule is the slow process of growth.
Again, the remedy for this static feature of primary rules is the introduction of the “rule of
change”.
3. The diffused social pressure by which the rules are maintained are inefficient in that there is
no agency specially empowered to ascertain finally and authoritatively, the fact of violation.
The remedy for the inefficiency of primary rules is the introduction of secondary rules
empowering individuals top make authoritative determination of the question whether on a
particular occasion, a primary rule has been broken. In other words, there should be the
presence of “rules of adjudication”.

Conclusion

The various thinkers who propounded the above theories came from different backgrounds and
orientations. Some of them were academics of various disciplines such as law, history, philosophy, etc.
while other were judges, clergymen, etc. There is no doubt that the differences in the backgrounds,
orientations and experiences will influence their conception of law from different angles. For example,
the way a judge conceives law would be quite different from the way a legislator does, and their views
would be different from that of an accused. If a judge or a legislator should find himself in the situation
of an accused, his conception of law might change.

In summary therefore, no theory is best. As it is usually said that every philosopher is a child of
his own experience, the conception of law by any theorist is a function of multifarious factors such as
background, orientation, experiences, idiosyncrasy, etc. There is no universally accepted definition of
law.

A good way to explain this is using the funny story of five blind men who attempted to describe
an elephant. Since none of them could see, it then followed that they had to feel it only by touching the

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animal. One touched the body, the second the tusk, the third the tail, the forth the leg and the fifth the
trunk. When asked differently how the elephant looked like, each independently replied this way; the
one said it looked like a wall, the other said it looked like pillar, another replied that it looked like a
strong rope, yet the other said it looked like python and yet another confidently replied that it looked
like a mountain. They were all correct yet wrong. Their error was that each definition was influenced by
the part of the elephant which each of them was able to touch and feel.

Authors and jurists while attempting to define law equally commit this same error. In view of the
foregoing, it is preferable to say that all definitions are subjective and are just for the prevailing
situation. No definition has been able to end all the definitions.

Little wonder that Okunniga stated thus, “Nobody including the lawyer has offered, nobody
including the lawyer is offering, nobody including the lawyer will ever be able to offer a definition of
law to end all definitions”. There is no ‘one for all’ definition of law.

Tutorial Question

Discuss any four of the following:

1. Natural Law School

2. Positive School of Law
3. Historical School of Law
4. Utilitarian School of Law
5. Sociological School of Law
6. Realist School of Law
7. Law as a Union of Rules

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FUNCTIONS AND CLASSIFICATION OF LAW

By function, we mean the goals which law is meant to achieve or the ends which law is supposed
to achieve. Law performs the following basic functions in the society, viz;

1. Law defines the Political Organization and Structure of Society: a society is defined by the law
operating in that society. The law determines for example the type of economic system to be adopted
and practiced in a society whether capitalist, socialist, communist, mixed-economy, etc. If the law
stresses private ownership and control of the means of production, such society is a capitalist society. If
the law discourages private ownership of the means and control of the production process and stresses
the common good more than private interest, such society is communist by definition.
2. Law Provides a Scheme of Individual Relationships within the Society: the existence of law enables
individuals in the society know how far they can relate with fellows as well as what is expected of them
in such relationship. For example, the law of contract spells out the rights and obligations of parties to
an agreement as well as liabilities in the event of breach of agreement. The law of tort is basically
concerned with the need to protect the civil rights of individuals from injury by other individuals.
Criminal law ensures that the properties and lives of the individuals are protected. Constitutional law
ensures the right of individual to peaceful assembly and association. For example Section 40 of the 1999
constitution of the Federal Republic of Nigeria as amended provides as follows: “every person shall be
entitled to assemble freely and associate with other persons, and in particular he may form or belong to
any political party, trade union or any other association for the protection of his interest”. Law defines
and protect marriage. While in some countries and continents same sex marriage may be tolerated, in
Nigeria the law defines marriage as a union between a man and a woman with certain rights and
obligations. The law sets a standard of what a legally recognized marriage should be. For instance, the
law does not recognize a mere cohabitation between a man and a woman as marriage.
3. Law enhances Societal Stability: law serves as instrument of social stability via its mechanism for the
resolution of conflict and disputes within the society. The law for example established the court where
dispute is adjudicated upon. Without law, individuals will resort to self help otherwise known as jungle
justice. Law is government and government is law. Without law, the society will return to the Hobbesian
state of nature where life was solitary, poor, brutish, nasty and short. Without law, anarchy will be the
order of the day. In every substantial human society, certain mechanisms have been created for dispute
resolution no matter how undeveloped it may be. In the modern day society, three major means of
dispute resolution are utilised. These include mediation, arbitration and adjudication.
4. Maintenance of Public Order: law maintains public order by putting in check those behaviours that
are unwanted in the society. Law prescribes the approved way of societal living and anything short of
this can be termed deviance. Law therefore is made to foster conformity with the general norms in the
society. As the society changes or move say from mechanistic to organic, the classification of defiance
may change accordingly. There is therefore the need for the law to be reviewed from time to time as the
society changes or developed.
5. Law promotes desirable Public Policy: Public policy can be distributive, redistributive and regulatory.
Through regulatory public policies, the conduct of the individuals within a society is regulated. Law is
used to discourage actions that are deemed harmful to the individual in particular and the society in
general. For example, the Nigerian Military Government at different times enacted series of decrees
which discouraged the cultivation, importation and smoking of Indian hemp and other hard drugs in the

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country when it realised that such drug intakes were becoming a social problem in Nigeria. Among the
Decrees promulgated by the military in this respect include Indian hemp Decree No. 19 of 1966; The
Indian hemp Amendment Decree No.34 of 1975; The National Drug Law Enforcement Agency Decree
of 1989, etc.
6. Law Identifies and Allocates Official Authority: - law constitutes and regulates the use of power in
society. It regulates the activities of various organs and powers of government. The powers of
government are share among the organs of government in the country. Nigeria for example operates a
Federal system of Government with three branches of government. The powers of government are
constitutionally shared among the legislature, the executive and the judiciary. The constitution further
provides the limit in the exercise of these powers where every organ of government is expected by
constitutional provision to exercise power within the scope allotted to it by the constitution. The
constitution also provides checks and balances within the different systems to avoid arbitrary exercise of
power. It ensures that one organ of government does not encroach into the statutory function of the
other. The constitution ensures that the exercise of power is not a function of might make right, rather a
function of constitutionalism (that is, adherence to the constitutional provision).
7. Law Communicates and Enforces Social Values: - The law states those value which should be
accepted and practiced and that which should be discarded. In the society, not all values are accepted.
The question is who defines what is right value and what is wrong value. This definition cannot not be
left for the individual alone otherwise the law will become subjective rather than objective. Therefore,
the law serves as instrument to define the right value which should be upheld and the wrong value that
should be discarded.
8. Law serves as social engineering: - This means that law serves as instrument of social, economic, and
political change. For example, when new inventions hit the world, new laws are made to control the use
of such invention.
9. Law defines the processes and procedures for change of government: law states the tenure of
government in office and the mode of changing the government. For example, section 146(1) of the
1999 Constitution of the Federal Republic of Nigeria as amended provides as follows: “the Vice
President shall hold the office of the President if the office of President becomes vacant by reason of
death or resignation, impeachment, permanent incapacity, or the removal of the President from office
for any other reason in accordance with section 143 of this constitution”. The implication of this
provision is that no person or group of person is allowed to effect a change in government without the
due observance of the provision of the constitution. This is to ensure stability in government.
10. It also defines the condition for change of law (amendment): the condition for changing the law is
also stated in the law. For example, section 9 of the 1999 Constitution of the Federal Republic of
Nigeria as amended empowers the National Assembly to alter any provision of the constitution but
subject to the provision of the constitution. Sub-section 2 of the above section specifically provides that
proposal for any alteration must be supported by the vote of not less than two-third majority of all
members of the National Assembly and approved by resolution of the Houses of Assembly of not less
than two-third of all States.

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CLASSIFICATION OF LAW

Law can be classified into various ways depending on the purpose in view. If it is to differentiate
one jurisdiction from the other, one can be classify law as Nigerian law, English law, South African law,
etc.

By subject matter, law can be classified as Law of Contract, Law of tort, Criminal law, Land
law, etc.

Law can also be classified by whether it is substantive or procedural law, public law or private
law, criminal law or civil law, or domestic law or international law.

Classification by Subject Matter

Law subjects which fall within this classification include; law of contract, law of tort, and
criminal law.

Law of Contract

Law of contract is that branch of law that studies those sets of rules by which it can be concluded
that the agreement between two parties can create legal obligation between them.

It is that branch of law which determines the circumstances in which a promise shall become
legally binding on the person making it.

A contract is an agreement enforceable by law and a breach of which entitles the other party to
compensation as damages. The agreements and stipulations of the parties to a contract must be
observed.

In contemporary times, there is some concern as to the extent to which freedom of contract
should be allowed. That is, whether the sanctity of freely negotiated contract should be upheld even if it
is one sided. In view of this and similar concerns, in many jurisdictions, contract is regulated by
legislations. For example, one of the statutes which regulate contract in Nigeria contract is the Contract
law, Cap 43, Laws of the Bendel State of Nigeria 1976.

Law of Tort

A tort is a civil wrong which results in an award of damages for the injury suffered thereby. The
law of tort deals with injury to a person (physical or reputation). The law of tort stipulates that an injured
person is entitled to compensation for his injury.

The major difference between tort and contract is that a tort occur independent of an agreement
while contract is dependent on agreement. In effect, for a contract to exist, there must be agreement
between the offeror and the offeree.

It is also important to state that sometimes there could be conjunction of tort and contract when
an act or omission is both tortious and a breach of a contract agreement. This means that the action can
have both tort and contract element. For example, if as ship owner agrees to transport goods which are

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subsequently lost at sea due to his negligence, he may be liable in contract for failing to failing to
transport the goods in the manner agreed, say by a faster ship, and also in tort for negligence.

Tort law does not aim at imposing penal sanctions on the wrong doer, rather to help the victim
by compensating him in damages. This is perhaps the crucial difference between tort law and criminal
law. There could also be an area of convergence between tort law and criminal law, e.g. assault and
battery.

Criminal and Civil Law

Criminal law is concerned with the law of crime. A crime or an offence is an act or omission
which renders the person doing the act or making the omission liable to punishment under the law.
Offence means any act or omission made punishable by any law for the time being in force. The
definition of offence has been provided for in section 2 of the Criminal Code Law, Cap 48, Laws of the
Bendel State 1976 and section 2 of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria
1990.

The criminal law is therefore concerned with the laws creating offences and punishments. It
spells out those actions or behaviours which are criminal in nature and punishable by the state
(government).

The principal penal law in the Southern part of Nigeria is the Criminal Code while the principal
penal law in the Northern part of Nigeria is the Penal Code.

Civil law generally is not concerned with punishment but with compensation. It embraces all
private and public laws other than criminal law. Some sub-divisions of civil law are Tort, Contract and
Company law.

Substantive and Procedural Law

While substantive law deals with the substance or content of the law, procedural law on the other
hand deals with the rules or procedures guiding the application of the law. This means that procedural
law deals with the procedures to be followed in applying the substantive law. A good example of the
substantive law is the Criminal Code which contains provisions setting out offences and punishments
for their violation. An example of procedural law is the Criminal Procedure Law which provides for the
procedures to be followed in criminal cases in the High Courts and Magistrate Court. In the defunct
Bendel State, the statute is the Criminal Procedure Law, Cap 48, Laws of the Bendel State of Nigeria
1970.

Example of procedural law in civil law is the High Court (Civil Procedure) Rules of the various
States High Courts such as High Court Civil Procedure Rules 1988 of Bendel State applicable in Edo
and Delta.

Public and Private Law

While Public law is concerned with the relationship between the individual or groups and the
state, Private law on the other hand is concerned with the relationship between individuals or groups and
each other. That is, private law deals with the legal relationship between ordinary individuals,
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partnership, companies, etc. but public law is concerned with the relationship between a state and its
citizens.

The main branches of public law are criminal law, constitutional law, administrative law and
revenue law.

Constitutional Law is concerned with the structure, sovereignty and functions of the principal
organs of government (legislature, executive, and judiciary) and the relationship that exist among them.
Constitutional law is concern with the prescription of activities to be performed by government
agencies.

Administrative Law is concerned with the functions of government agencies. Administrative

law is the branch of public law that controls the implementation of government programmes. It is the
law by which government and administrative authorities function. It is the branch of public law that
deals with the affairs of agencies of government and with the judicial review of public bodies generally.
Administrative law is the law relating to the control of governmental power, other than the power of
Parliament, and the body of general principles relating to the functioning (as opposed to structure) of
public authorities. Its primary purpose is, therefore, to keep the powers of government within their legal
bounds so as to protect the citizen against their abuse. Administrative law may be said to be the body of
general principles which governs the exercise of powers and duties by public authorities. Ivor Jennings
defines administrative law as the law relating to the administration. It determines the organization,
powers and duties of administrative authorities. Kenneth Culp Davis defines administrative law as the
law concerning the powers and procedure of administrative agencies, including, especially, the law
governing judicial review of administrative action”. According to Davis, an administrative agency is a
governmental authority, other than a court and a legislature which affects the rights of private parties
either through adjudication or rule-making.

Revenue Law is concerned with taxation and other sources of government revenue. Income tax
is one of the major sources of revenue for the government, and it must be reckoned with in all the
government’s budgets. It raises revenue to meet government expenditure. The government expenditure
which requires to be met include provision of services which the free market cannot provide such as
defence, law and order and parks as well as provision of services which the state feels are better
provided by itself such as health services and education – often referred to as public goods. Thus the
taxes collected come back to the tax payers in the form of social amenities. Income tax has been used to
encourage and discourage some activities in the private sector, though this depends on whether the
policy of the government is towards encouraging or discouraging such activities. The tax system may
thus be used for discouraging immoral activities such the use of alcohol or purchase of cigarettes.
Taxation also has social effects as it affects the lives of nearly everybody. Personal reliefs (aids and
assistance), reliefs in respect of children and tuition (scholarships and grants), reliefs on insurance policy
premiums, and dependent relatives’ relief (e.g. gratuities of a dead civil servant) affect the social
structure of the whole country. Taxation further assists in the redistribution of wealth in the society.
Taxes paid are used to bridge the gap between the rich and the poor. Income tax also has some effect on
population movements and the extent of business carried on. A state with a low income tax rate will find
that more people are moving into that state, while traders will leave states with high income tax rates or
engaged in various schemes of tax avoidance and tax evasions.

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The main branches of private law include the law of contract, tort law, Company law,
Commercial law, Law of property, and the Law of trust. Another way of classifying company law and
commercial law is to regard them as business law. Company law regulates the associations of persons
having a common business object. The principal law regulating this area of law in Nigeria is the
Companies and Allied Matters Act 1990 (CAMA).

Domestic and International law

Domestic law is also known as municipal law and it refers to the laws operating within a
country. It relates to legal instrument which regulates the inter-relationship and activities of states
among themselves. International law may be described as 'consisting of a body of laws, rules and legal
principles that are based on custom, treaties or legislation and define, control, constrain or affect the
rights and duties of states in their relations with each other'. The founder of international law was a
seventeenth century Dutch scholar, Hugo Grotius who wrote a major work on the subject titled “De
Jure Belli et Pocis” (concerning the law of war and peace). International lawyers have attempted to build
up a body of rules and doctrines through majority, treaties and conventions between states with the aim
of achieving peace among nations.

International law consists mainly of various international agreements that are in the form of
conventions, treaties, and covenants which are binding on contracting parties thereto. For example,
Section 12(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides that “a
bill for an Act of the National Assembly passed pursuant to the provisions of subsection 2 of this section
shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a
majority of all the House of Assembly in the Federation”. By implication, a treaty to which Nigeria is a
signatory and has ratified becomes operative upon same being incorporated into the corpus of Nigeria
law.

This provision of the constitution was given judicial notice in the case of Sanni Abacha v Gani
Fawehinmi [2000] 4 N.W.L.R. 533 when the Supreme Court (i.e. the Apex Court in Nigeria) clearly held
that the Africa Chapter on Human and People’s Right of 1981 is enforceable in Nigeria.

The basic principle of international law is embodied in the legal maxim “pacta sunt servanda” a
Latin word meaning ‘promises must be kept’

Tutorial Question
1. Discuss the functions of law
2. Examine any four legal classification of law known to you.

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THE IDEA OF A LEGAL SYSTEM

In order to understand the meaning of a Legal System, there is a need to distinguish it from a
similar yet different idea. This is the idea of legal tradition.

Legal Tradition

A legal tradition is a system of legal thought and an aspect of general culture. There are
Religious Legal Traditions and Secular Legal Traditions. Examples of religious legal traditions are those
based on Islamic Law or Hindu Law. On the other hand, Roman or Civil Law Tradition and the
Common Law Tradition are examples of secular legal tradition. Of the two groups of circular legal
traditions, the civil law tradition which has its origin in Roman law is the oldest. It dates back to
centuries before Christ and once governed Roman citizens. The common law tradition according to
some writers originated and developed in the course of the last 800 years.

Whereas the Islamic law tradition can be found mostly in the Arab world, the secular legal
traditions on the other hand are predominant in the Western world and their formal colonies.

Legal System

A legal system on the other hand means the body of rules in operation in a particular society at a
given time, together with the institutions which go with them. In a nutshell, a legal system is the laws
operating in the system and the institutions especially the courts through which the laws are applied

A legal system therefore must belong to a legal tradition (Islamic/Hindu, Civil or Common law
tradition). It is important to mention that a legal system may contain elements of more than one legal
tradition. For example, while the legal system of most Canada is derived from the common law
tradition, Quebec which is part of Canada however follows the civil law tradition. In the final analysis,
Canada as a complete entity can be said to encompass both the common law tradition and the civil law
tradition. No civilized society can do without law or the legal system. But as expected, all societies do
not attach the same level of importance to the legal system. In very developed countries (e.g. America,
Britain, etc.) recourse to the legal system in case of dispute is routine (that is, they approach the court
over the slightest issue or provocation)

There is prevalence of legalism in developed countries because majority of the citizens know
their rights and are willing to resort to legal forms and processes at the slightest provocation.

In the third World, the citizens are not so inclined, they are reluctant to use legal system to settle
dispute. They only use it as the last resort. This could be as a result of the cumbersome and expensive
process. In some societies such as imperial China, anti-legalism was prevalent. But that is no longer the
case today.

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CHARACTERISTICS OF THE NIGERIA LEGAL SYSTEM

There are about six notable characteristics of the legal system, viz:

1. It is based on common law tradition: this is because Nigeria is a former British colony from where
common law tradition spread to most of the English speaking world like Australia, Canada, USA, India,
Ghana, among others. All these countries have one thing in common; they were all colonists of Britain.
2. It is a reception of English law: many English statutes were received into Nigeria by virtue of various
enactments and are still applicable in the country today because of the various enactments which
received these laws into the country.
3. It is complex: Nigeria operates a federal system of government which gives freedom to the federating
units to make laws that will govern their internal affairs and operations. The effect of this is that each
federating units formulate their own laws. The result of this is that there would be different laws
between the states and the central government at one hand, and among the various states on the other
hand. When put together therefore, there would be a single complex legal system. This complexity is
further heightened owing to the fact that there are different types of laws side by side.
4. Existence of different types of law: Apart from the received English law which is made up of Common
law of England, the doctrine of equity and the Statute of General application in England on January 1
1900, we also have local legislations of the various levels of government as well as customary laws of
the various ethnic groups in the country. This arguably poses difficulty to legal practitioners in
determining where to classify a particular fact and the level of court that should adjudicate a particular
case.
5. Recognition of Customary Law: Nigeria Legal System recognises the existence and application of
customary laws in our court after being subjected to the various test such as the repugnancy test, the
public policy test, and the incompatibility test.
6. Slow judicial process: the Nigeria legal system is no doubt bedevilled with bureaucratic processes
which result to protracted judicial process. The following examples illustrate this claim
The case of Eyindu and Ors v. Obi which originated at an Onitsha High Court in 1976 spent 21
years in the High Court of Appeal and the Supreme Court.
The case of Agbaisi and Ors v. Ehikorefe which originated in the High Court of Edo State in
1975 spent 22 years and was finally decided by the Supreme Court on April 1997 (Appeal No. 250/90).
The case of Kamalu and Ors v. Nwakudu & Ors which originated in Aba High Court in 1973
spent 24 years and was finally decided by the Supreme Court on May 16th 1997 (Appeal No. 241/91).
Election petitions are also very slow in Nigeria. The result of the above features in the Nigeria
Legal System is that there is general apathy toward judicial process. People then resort to alternative
means of resolving disputes including using the police or soldiers.

Tutorial Question
1. Distinguish legal system from legal tradition
2. Discuss the characteristics of the Nigerian Legal System

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SOURCES OF NIGERIAN LAW

In every society where law is applied towards social control or regulation, it is important to
know where the law can be found. ‘Sources of Law’, therefore, refers to the places where laws can be
found, where they originate, or where they are explained. These could be the initial origin where the law
was made and stored, or a different location where the relevant rules have been analyzed. Sources are
guides which provide assistance in facilitating the lawyer’s knowledge of the law. The term source of
law is used in various senses.
First, it means the ultimate origin of the whole body of a legal system. The origin from which the
system derives its validity, be it the electorates, a special body like the legislature, the general will, or
the will of a dictator. In the sense, a source of law is a formal sense of law.

Secondly, the term is used to mean the historical origin of a rule of law. The term sources of law
may refers to past acts and events resulting in principles and rules of law.
Thirdly, the term means a material containing the rule of law, that is, documents from which the
law could be found e.g. statute books, law reports, encyclopaedias, law textbooks, works or reference
which state and clarify legal principles, writings of jurists which are recognized books of authority are
sources of law in this sense. A source of law in this sense is said to be a literary source.
Fourthly, source of law means fountain of authority of a rule of law, that is, the origin from
which a legal rule derives its authority. It is the means through which a rule forms part of the body of
law. In this sense, a source of law is a legal source. Examples of legal sources are legislations and
judicial precedents.
Theoretically or philosophically, the term may refer to those philosophical principles which have
influenced legal principles and legal change.
For the purpose of this course, the term ‘sources of law’ is used in the Formal sense of it. That is,
the formal sources of law. Accordingly, the sources of law in Nigeria are
1. Nigerian legislation
2. English law
3. Customary law
4. Judicial precedents
5. International law

NIGERIA LEGISLATIONS

Nigeria legislations consist of statutes and subsidiary legislations. Statutes are enactments or
laws made by the various making bodies in Nigeria. They are laws enacted by the Nigeria Legislature.
That is, the legislative arm of government as opposed to received English Law. Subsidiary legislation is
a law enacted in the exercise of powers given by the statutes. In simple term, Nigeria legislations are
laws made by various law making bodies in Nigeria be they the conventional legislations or military law
making body. When the British first came to Nigeria, there were two principal sources of legal rules.
These were English laws and local custom. When legislative councils were created in the Colony of
Lagos and in other parts of Nigeria, local legislations called ordinances made by these legislative
councils became a third source. In 1954 when Nigeria was divided into regions, each region published
those ordinances which dealt with matters within their competences and these ordinances became

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known as law. The remaining ordinances which dealt with matter within federal competence were then
regarded as Acts of the Federal Legislations. Nigerian statutes of legislations consist of the following:

Ordinances: - these are laws passed by the Nigerian central legislature (legislative council) prior to
October 1 1954 when regional legislature was introduced into Nigeria. It follows therefore that
Ordinances are Acts of the Federal Legislature.

Acts: - these are federal laws made by the federal legislatures. They are statutes enacted by the elected
federal legislature in a civilian regime otherwise known as the national Assembly. In this context,
National Assembly comprises of both the Senate and the House of Representative. The equivalents of
Acts under military rule are decrees which were made by the law making bodies of the various military
regimes in Nigeria.

Law: - these are enactments or legislations made by the elected state legislature in a civilian regime
otherwise known as State House of Assembly. The equivalents of law under military rule are edict
which were legislations made by the states in various military regimes in Nigeria.

Degrees: - these refer to enactments made by the Federal Military Government under military regime. It
is equivalent to Acts under civilian regime.

Edicts: - these refer to enactments made by the Military Governor/Administrator of a State under
military regime. It is equivalent to law made by the state house of Assembly under civil rule.

Bye laws: these are legislations made by Local Government Councils in areas within their competence.
For example, laws that concern collection of taxes and rates, licensing of vehicle, television, bicycle,
hawkers permit, provision and maintenance of local markets, registration of death, birth and marriages
within its jurisdiction, motor parks, street naming, pipe sewerage systems, inspection of meat and
abattoirs, etc.

The name ascribed to a Nigeria statute or law depend on the enacting organ and the period or era
such law was enacted. It may be important to state at this juncture that all the existing federal
legislations in Nigeria till 2004 have been encapsulated in what is now known as Law of the Federation
of Nigeria (LFN) 2004. This collection of laws constitutes a very important source of law in Nigeria.

The legislature also makes subsidiary legislation which is also a source of law in Nigeria
pursuant to the power conferred on it by Section 4 of the 1999 constitution of the Federal Republic of
Nigeria as amended to make laws for the peace, order and good government of the federation or any
part thereof with respect to any matter included in the Exclusive Legislative List set out in part 1 of the
Second Schedule to the Constitution. Example of such subsidiary legislations are the various High Court
Rules and road traffic regulation. Acts of the federal parliament and decrees are superior to all other
legislations so that if the other legislations are inconsistent with Federal Acts, they are null and void to
the extent of such inconsistency.

Between Acts and Decrees under military rule, decrees take precedence. This is due largely to
the fact that the constitution is usually suspended under such military rule. Section 5 of the Constitution
(suspension and Modification) Decree No. 107 of 1993, provided that no question as to the validity of

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any decree made during the period of 24 December 1983 to 26 August 1993 or made thereafter shall be
entertained by any court of law in Nigeria.

The English Law

The received English law as a source of Nigeria law consist of the following;

a. The common law

b. The doctrine of equity
c. Statute of General Application (SOGA) in force in England on January 1 1900
d. Statutes and subsidiary legislation

The history of the reception of English law into Nigeria dates back to 1863 when Ordinance No.
3 of 1863 introduced English Law into the Colony of Lagos. That ordinance introduced English law into
the colony of Lagos without further analysis. Section 1 of this Ordinance No. 3 of 1863 introduced all
laws and statutes which were in force in England on the 1st day of January 1863 and made them part of
the laws of the colony of Lagos. The only limitation was that such laws and statutes must not be
inconsistent with any Ordinance in force in the Colony; and that they must be applied in the
administration of justice so far as local circumstances would permit.

In addition to the received English law enumerated above, there were certain English enactments
that were incorporated directly into Nigerian law instead of being received. These English laws are those
made prior to October 1st 1960 which extended to Nigeria.

It is necessary at this juncture to consider in turns these laws operating in Nigeria

Received English Law

English law was received into the law of the federation by virtue of section 45(1) of the
Interpretation Act of 1958 which is now equivalent to section 32(1) of the Interpretation Act of 1990. As
earlier stated, the Received English Law in Nigeria consists of Common Law, Doctrines of Equity,
Statutes of General application (SOGA), and Statute of Subsidiary Legislation.

The Common Law

Common law of England means the basic law or body of legal rules that were developed by the
judges of the old common law courts. These courts include; the Court of Kings Bench, the Court of
Common Pleas, and the Court of Exchequer. It was based on the strict application of the law.

The common law is almost entirely a development of the judges and its principles are to be
discovered in previous similar cases and not from a comprehensive code as is the case with civil law
countries like France. The judges used these laws and applied them from time to time. As a result of the
above, there have been plethora of controversies as to the ultimate source of the rules of the common
law.

There is the view that contends that in reality judges are always making new laws. In other
words, the common law is a creation of the judges.

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The other view known as declaratory theory contends that the common law is a fixed and
unchanging system of principles which originated in the common custom of the realm. In other words,
the common law existed, but all the judges did was to discover these laws from time to time and apply
them in cases brought before him.

If it is so said, in the case of the first view, it follows that there is no case of precedent. If you say
the common law is judgment, how do you explain the case of precedent otherwise known as stare
decisis?

In the case of the second view, if it is agreed that judges work with the law of precedent, how
would a first time case with no precedent be follow?

However, there is a third approach which is mid-way between the above two opposing views.
The view here is that either of the above is correct. Under the common law, judges do make laws but not
in every case. In a first time case, where there is no precedent to follow, the judge can make a law, but in
other cases, where there are decided cases, precedents are followed.

However, the notion of judicial precedent has often been criticised on two grounds. Firstly, the
doctrine has been criticised for not allowing change in law since the former decision is to be followed.
Secondly, the doctrine has also been criticised on the ground that the fact that something has been done
in the past does not mean that it was rationally right.

Vehicles of Reception and Application of English Law in Nigeria

The vehicles of reception of English Law in Nigeria are as follows:

a. At the Federation: at the federal level, the English law was received into the laws of the federation by
virtue of section 45(1) of the Interpretation Act of 1958 which is now equivalent to section 32(1) of the
Interpretation Act of 1990. The above section provides thus “subject to the provisions of this section
and except in so far as other provisions is 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 1st day of January 1900, shall be in force in Lagos and so far as they relate to any matter within the
exclusive legislative competence of the federal legislature shall be in force elsewhere in the federation”
b. The former Eastern States: in the former Eastern States (Anambra, Cross River, Imo and Rivers),
English law was received by virtue of section 27 of the High Court Law of 1955. The above section
provides thus “subject to the provisions of this sections, the common law of England, the doctrines of
equity and the statutes of general application that were in force in England on the first day of January
1900 (January 1 1900) shall in so far as they relate to any matter to which the legislature of the Region
is for the time being competent to make laws, shall be in force within the jurisdiction of the court”.
c. The former Northern Nigeria: in the former Northern Nigeria, English law was received via the High
Court Law of 1955 which is equivalent to the current section 28 of the High Court Laws of the Northern
States. This law provides as follows: “subject to the provisions of any written law, the common law, the
doctrines of equity and the statutes of general application which were in force in England on the 1st day
of January 1900 (January 1 1900), shall be in force within the jurisdiction of the court”.
d. The former Western Nigeria: in the former Western States of Nigeria, English Law was received by
virtue of section 3 of the Law of England (Application Law) Cap 60 which is now section 3 Law of

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England (Application) Law Cap 85, Law of Bendel State of Nigeria 1976. This law provides thus “from
and after the commencement of this law and subject to the provisions of any written law, the common
law of England and the doctrines of equity observed by Her Majesty’s High Court of Justice in England
shall be in force throughout the state”.

Reception of English law in States that were in the Former Western Region of Nigeria

The Statutes of General Application do not apply to the States in the Western Region of Nigeria.
The region did not accept the pre-1900 laws. What the former Western Region did was to select the laws
which they felt they wanted to retain in the statute of general laws. They retained the provisions
introducing English common law and equity. Those English statutes pre and post 1900 which were
thought important in areas within their constitutional limit were enacted specifically into law and they
became local laws. They no longer had the problem of which one applied to Nigeria. They selected the
laws they wanted from the English laws and adopted it in their book, then, other people from Nigeria
then made references to them. This approach it is submitted is better than that of receiving in general
terms statutes of general application.

The latter approach (receiving everything) results in a situation of uncertainty as to which

English statute is in force until it is pronounced upon by the court of law. However, certain statutes of
general application still apply in the States under consideration. These are statutes dealing with matters
that are exclusive to the Federal Government. Those Statutes of General Application have been received
by virtue of the Interpretation Act which is the federal legislation.

The Doctrine of Equity

The word ‘equity’ literally means fairness. The doctrine of equity emerged out of the need to
remedy the harshness, strictness, toughness, rigidity, rigours, etc. of the common law. The doctrines of
equity are based on the principles of fairness and good conscience as opposed to strict application of the
law. The doctrine of equity was administered in a more liberal and more humane manner with a view to
achieving the end of justice. This doctrine was developed by the chancery court in England to mitigate
the harshness of common law so as to ensure justice is done. In the Medieval England, individual who
for any reason feel that the common law system did not do justice to them, usually petition to King and
set out their complaint.

Equity and the common law were administered separately until the late nineteenth century.
However, by virtue of the ruling of king James 1 in 1615, where there is a conflict between a rule of the
common law and a doctrine of equity on the same matter, the doctrine of equity will prevail generally.
This was provided for in the Judicature Act of 1873-1875, as well as section 17 of the High Court Law
of Bendel State 1976, Cap 65. Naturally, there were conflicts between the Common Law courts and
Chancery, and in 1615, in the Earl of Oxford Case, the King ruled that Chancery would prevail in any
such conflict. It then became an established rule that in a conflict between equity and the common law,
the former would prevail.

By virtue of the Judicature Act of 1873 – 1875, the court started administering equity and the
common law together in 1875. This rule was judicially noticed in the case of Transbridge Company Ltd.
v. Survey International Ltd. (1986) 4 NWLR (Pt. 335) 576.

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It is important to state that even though the two systems are administered together formally, they
however remain two separate systems of rules.

Statutes of General Application in force in England on January 1st 1900

A Statute is an Act of Parliament. Generality of Statutes may be inferred from generality of

application to:
i. Persons or class of person whom the Act applies,
ii. Cause, and
iii. Geographical coverage.
Statutes of General Application in force in England on the 1st day of January 1900 constitute the
third part of English law that applies in Nigeria. They were operational in England and due to the
reception of English law, they become applicable in Nigeria.
The Supreme Court Ordinance of 1914 introduced into Nigeria as part of her Received Law “the
Statutes of General Application” which were in force in England on 1st January 1900.

The major reception act in Nigeria is the Interpretation Act 1958. The Interpretation Act receives
English law in Section 32(1) Interpretation Act 1958 which provides that “the rules of common law, the
doctrines of equity, and statutes of general application which are within the competence of the federal
legislature in existence before 1900 shall be in force in Nigeria”.

Statutes of general application have been received in all jurisdictions in Nigeria, except in states
which comprise of the former Western Region (i.e. Ogun, Ondo and Oyo State respectively) by virtue of
the law of England. However, certain statutes of General Application still apply in these states under
consideration; for instance, statutes dealing with matters that are exclusive to the Federal Government.

Statute of General Application is limited, subject to Nigeria jurisdiction or when there is a

Nigeria federal law or court decision available. This is provided for in section 32(2) of the Interpretation
Act 1958. For a statute to be of General Application, such statute must have been in force in England on
January 1st 1900. The test of general application in terms of territory is England.

In determining the full meaning of the word “general application” Osborne C.J., in the Attorney
General v. John Holt Company (1910) 2 N.L.R. 1, approved of a so-called “rough but not infallible
tests”. In the light of the decisions of the court therefore, a statute would be held to be a statute of
general application if the following conditions are satisfied;

i. Was the statue in force in England on 1st January 1900 and by what courts is the statute applied in
England? If on the 1st January 1900 an act of parliament was applied by all civil or criminal courts as
the case may be, then, there is a strong likelihood that it is a statute of general application. But if it was
applied only by certain courts (e.g. a statute regulating procedure), then the probability is that it will be
held not to be a statute of general application.
ii. To what class of community in England does it apply? Did it apply to all members of any class of
community in England on 1st January 1900? If a statue applies to all classes of community in England,
there is a strong likelihood that it is a statute of general application. But if it were applied only to certain
class of community (e.g. an act regulating a particular trade), the probability is that it would be held not
to be locally applicable.

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These tests have been applied in number of cases. In Lawal v. Yaunan (1961) 1 All N.L.R. 245,
the Federal Supreme Court held that the Fatal Accidents Act 1846 and the Fatal Accident Act 1864 were
statues of general application in England since they applied to all classes of the community in England.

Also, the Osborne C.J., test found application in the case of Young v. Abina (1940) 6 W.A.C.A. 180 at
183-184. The West African Court of Appeal in that case held that the Land Transfer Act of 1897 was a
statute of general application in England because it applies quite generally to all estates in England of
persons dying after January 1898.

Similarly, in Braithwaite v. Folarin (1938) 4 W.A.C.A. 76, the West African Court of Appeal held
that the Fraudulent Conveyances Act of 1571 was a statute of general application because it applies
quite generally to ordinary affairs and dealings of men without any qualification or speciality restricting
its application.

Statutes and Subsidiary Legislations on Specified Matters

While statutes of general application are received in general terms without references to their
subject matter, ‘Statues and Subsidiary Legislations on Specified Matters’ are received by reference to
their subject matter. By implication, ‘Statues and Subsidiary Legislations on Specified Matters’ do not
apply to all matters other than those specified in it. Invariably, statute on specified matters is a statute of
limitation.

Example of this ‘Statues and Subsidiary Legislations on Specified Matters’ is Section 33 of the
High Court Law of Northern Nigeria Cap 49 of 1963. This section provides thus “the jurisdiction of the
High Court in probate cases and proceedings may subject to certain reservations be exercised by the
court in conformity with the law and practice for the time being in force in England. (Probate cases refer
to estate cases, that is, cases that have to do with validity of will and the distribution of a deceased
property under a will).

This statute was judicially noticed in the case of Young Dede v. African Association Ltd. (1910),
where the plaintiff claimed the right and title to a parcel of land situated in Brass, River State, Nigeria.
The defendant pleaded the Statute of Limitation but the plaintiff denied that the Statute was of a general
application. The Land Transfer Act of 1875 and 1897 were also pleaded. The court held that the Land
Transfer Act could only apply to England not land in Nigeria. In other words, the Land Transfer Act is
not a Statute of General Application, but a ‘Statues on Specified Matters’, that is, a statute with
limitation.

Tutorial Question

Critically examine the sources of Nigerian Law introduced by Ordinance No. 3 of 1863

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CUSTOMARY LAW

Customary law as a source of Nigerian law consists of customs or conduct accepted by members
of a particular community as binding among them. It is derived from custom that has been established as
a mirror of accepted usage as pronounced by the superior court of record. Example of customary law is
the Yoruba customary law of succession (that is, property distribution of a deceased). Under this
established rule of custom, property distribution is done either per stripe (Idi-Igi) or per capital (Ori-
Ojori) depending on the area.

The Supreme Court in Kharie Zaidan v. Fatima Khali Mohassen (1973) All NLR p. 740 at 753.
defined customary law as any system of law not being the common law and not being a law enacted by
any competent legislature in Nigeria but which is enforced and binding within Nigeria as between the
parties subject to its sway or authority.

It is worthy of mention that there is no universal customary law in Nigeria. In effect, customary
laws vary from tribe, ethnic group as well as territory.

In Nigeria, customary law may be divided in terms of nature into two classes, namely;

1. Ethnic or non-Moslem law

2. Moslem law

Ethnic Customary Law

Ethnic customary law in Nigeria is indigenous. Each system of such customary law applies to
members of a particular ethnic group. Ethnic customary law is unwritten. There are several of such
customary law systems in Nigeria, each ethnic group having its own separate system. For instance, the
customary law system of a town in Ogun State may differ from the customary law system of a
neighbouring town in the same State even though the indigenous people of both towns are Yorubas, for
the Yoruba consists of several ethnic groups.

Similarly, the customary law of an Ibo town in Anambra State may be different from that of a
neighbouring town in the same State. This diversity of customary law system is a major obstacle to
uniformity of customary law system in each State.

It should be noted however that in many respects, the ethnic customary law of an area is similar
to that of another area where the indigenous people in both areas belong to the same tribe. Thus, there
are certain rules of customary law common to all Yoruba areas in the country. For example, during
marriage ceremony, it is expected by the culture of the Yoruba people that those coming to ask for hand
in marriage bow down to the family of the bride as a sign of respect and humility. This is common in
Yoruba land irrespective of tribe.

Moslem law

Moslem law is religious law based on the Muslim faith and applicable to members of the faith.
Unlike the ethnic customary law, Moslem law is principally in written form. The sources of Moslem law
are the Koran, the practice of the prophet (the Sunna), the consensus of scholars and analogical
deductions from the holy Koran and from the practice of the prophet. Moslem law is alternatively call
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Islamic law or the Sharia (the secret law of Islam). The version of Moslem law in force in Nigeria is that
of the Maliki School.

Characteristics of Customary Law

African customary law has some basic characteristics that distinguish it from the Received
English Law. The basic characteristics of African customary law are as follows:

1. Acceptability: one of the characteristics of customary law is its acceptance as an obligation by the
community. It is recognised as law by members of the ethnic group. It is a mirror of accepted usage. The
people believed in the custom and accept it to regulate the conduct and actions of the members of the
society over the years so that every member of the community knows the custom. Based on the
continuous usage, the people are bound to accept whatever sanctions that maybe attached to its
violation. This is what distinguishes customary law from the received English law. The Received
English Law binds everybody once it is signed into law. It is not based on the acceptability by the
people. In Owonyi v. Omotosho (1961) 2 SCNLR 57, the Supreme Court defined customary law “as a
mirror of accepted usage as pronounced by the superior court of record. For a customary law to be
enforceable, it must be recognised and adhered to by the community. In fact, it is the assent of the native
community that gives a custom its validity
2. Flexibility: The African customary law is not a static system. It is flexible and its rules change from
time to time. In particular, they reflect changing social and economic conditions. As Osborne C.J. said
in Lewis v. Bankole, “one of the most striking features of West African Native Custom is its flexibility.
It appears to have been always subject to motives of expediency and it shows unquestionable
adaptability to alter circumstances without entirely losing its character”. In other words, it can modify
itself to accord the changing social and economic conditions. The barbarous customs of earlier days may
under the influence of civilization become milder without losing their essential character as custom.
Examples abound illustrating the flexible nature of customary law. There was a time when the presence
of any written form of transaction raise a presumption that the transaction was one governed by English
law since customary law is unwritten but the courts have abandoned this position. In Rotibi v. Savage,
the court warned against reliance on that principle. The position now is that the courts have accepted
that customary law had in some cases adapted to inculcate written documents as means of proof. For
example, the Supreme Court in Okeaya v. Aguebor (1970) N.S.C.C 6 has judicially noticed that as from
1961, the root of title to land in Benin City and environs is a document known as “Oba Approval”. This
document evidences the grant of land to a person by the Oba of Benin after the persons had applied
through any of the plot Allotment Committees for a grant of land. Whereas prior to this time (1961), the
only customary mode of acquisition of land in Benin Kingdom was through oral grant by the Oba or the
Odionwere as the Oba’s representative, accompanied by the planting of ‘Ikhimwin’ tree on the land to
evidence the grant. The rule that customary law must have as its characteristic flexibility was
demonstrated in Bakare Alfa & Ors v. J. Arepo (1963) WNLR p. 95, when Gruffus J. stated that
customary law rules do change with the time and rapid development of social and economic conditions.
For example, in the old, when a woman lost her husband, she is required under the customary law of the
land to rub charcoal on her body and sit on the floor. Presently however, due to development and
civilization, a woman who resides in the city and she is by custom required to mourn her deceased
husband by the rubbing of charcoal and sitting on the floor but cannot easily do so in the city, she can
now clothe herself in black apparel as alternative to robbing of charcoal.
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3. Existence: another feature of customary law is that it must be in existence at the relevant time and must
be recognised and adhered to by the community. They must be currently existing customary laws not
past laws. Some customary laws rules may have been practiced in the past but are no longer in existence
at present, for example, the killing of twins, lepers being taken to the forest to die, Osu caste system, etc.
such outdated customary laws cannot be said to be part of the customary law of the people and can no
longer be binding among the people. In Kimdey & Ors v. Military Governor of Gongola State, the
Supreme Court of Nigeria reiterated this characteristic when it stated thus “it is one of the characteristics
of customary law that it must be in existence at the relevant time and must be recognised and adhered to
by the community. It must not be accustom of by-gone days.
4. Unwritten: The African customary law is not codified, it is largely unwritten. It cannot be found in any
written book, but it is in existence, every member of the community knows it even though it is not
written. The principle that African Customary Law is usually unwritten but recognised as law by the
members of the ethnic group is illustrated in the case of Lewis v. Bankole (1908) 1 NWLR 81 at 100. In
the Bini culture for example, Odiowere is not hereditary but by age. By implication, upon the demise of
Odiowere, the oldest man automatically becomes the new Odiowere by the Bini culture. Even though
this rule is not written anywhere, it is known and recognised by all who are subject to it. It is the
unwritten feature of customary law that distinguishes it from the Received English Law. This
characteristic is illustrated in the case of Griffin v. Talabi, where the Court of Appeal at page 372 held
that purchase receipt and conveyance clearly evidence a transaction the nature of which is unknown to
native law and custom. Similarly, in Cole v. Folami (1956) SCNLR 180, it was held by the Supreme
Court that the making and giving of receipt are unknown to native law and custom.
5. Un-organized sanction: Some actions are highly reprehensive and their punishment may vary from one
community to another. Under the written law, sanction for a particular offence is uniform. Sanctions for
civil wrong under the customary law are un-organized. It varies from community to community unlike
the sanction provided for under the Received English Law or under modern day legislation.
6. Validity: rules of customary law are subject to the test of validity prescribed by statute. Therefore,
before a customary law rule is applied by the Nigeria court, it must have passed the prescribed validity
test. Furthermore, the various High Court laws in Nigeria direct the observance and enforcement of a
customary law by the court if such law is not;
a. Repugnant to natural justice, equity and good conscience,
b. Contrary to public policy, and
c. Incompatible directly or by implication with any law for the time being in force.

Consequently, the court in Anekwe v. Nweke (2014) NWLR (pt. 1412) 392 particularly at page 423
paragraph a –c, clearly held that the custom of the Anambra people which denies a wife of a deceased
husband entitlement to her husband landed properties is repugnant to natural justice, equity and good
conscience.

Tutorial Question

With the aid of decided cases, examine the characteristics of customary law

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VALIDITY OF CUSTOMARY LAW

When the British authority took over the colony now known as Nigeria, some rules of customary
law which they perceived as barbaric and obnoxious such as the killing of twins, and human sacrifices
were abolished. All the practices which were not abolished were subject to the test of validity prescribed
by statute. Only those practices which were able to pass the validity test or those judicially noticed were
recognised and applied. Therefore, before a customary law rule is applied by the Nigeria court, it must
have passed the prescribed validity test. The test is laid down in the Supreme Court Act, the various
High Court Law of the States of the Federation, and the Evidence Act.

The applicability test is a test that enhances one’s knowledge on the validity or otherwise of a
particular custom. Three distinct tests are implied or used to determine this. The tests are;

a. The repugnant test,

b. The public policy test, and
c. The incompatible test.

The Repugnancy test

The word repugnant means offensive, nasty and dislike. This test is gotten from the word
“repugnant to natural justice, equity and good conscience”. This phrase prima facie is susceptible to two
interpretations. The first is to split it up into its three component parts, that is, “natural justice”, “equity”,
and good “conscience”. Natural justice means fair play. Equity means to be fair to everybody and given
the opportunity to explain oneself before any decision is taken as done by God to Adam and Eve.
Conscience refers to the ability to know within oneself the right and wrong a particular situation.
Therefore a customary law which is distasteful and offensive to humanity will never be enforced under
this principle.

The consequence of using this approach is to ascribe to it the technical meaning of the phrases.
This was the approach taken by the court in Lewis v. Bankole when it stated that because a custom did
not form part of the English doctrine of equity, it is therefore repugnant to equity and invalid.

The second approach is the liberal and flexible attitude which rejects the first approach. This was
the approach taken by the Supreme Court in Lewis v. Bankole when Speed Ag. C.J. stated that the test
did not form part of the English system of equity. Consequently, the Supreme Court rejected the view of
the trial judge that because a custom did not form part of the English doctrine of equity, it was invalid
by virtue of the repugnancy test.

In Dawodu v. Danmole (1950) 3 F.S.C. 40, the Privy Council stated that the principle 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.
In that case, the court considered two customary rules of sharing the property of a deceased Yoruba
man. Under the first rule known as Idi-igi, the property of the deceased who died leaving a number of
wives and a large number of children is to be divided into as many portions as he had wives and
distribute it accordingly. This custom gave rise to numerous disputes, and to avoid this, a second rule
known as Ori-Ojori was evolved. Under this second rule (Ori-Ojori), the property of such a deceased
man is divided into as many parts as his children, if the family head so directs. In this case, the family
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head had not directed that Ori-Ojori should be utilized, but the trial court was of the opinion that Idi-igi
was inconsistent with the modern idea of equality among children. But the Privy Council rejected this
approach.

In Edet v. Essien (1932) 11 NLR 49, the plaintiff paid bride price on a woman when she was a
child. The woman without returning his bride price left him and entered into a new marriage with
another man by whom she had two children. The plaintiff now claimed that under a rule of customary
law, he was entitled to claim custody of the children since his bride price had not been repaid to him.
The trial court refused to apply such rule on the ground that it was repugnant to natural justice, equity
and good conscience.

In Re Effiong Okon Ata (1930) 10 NLR 65, a customary rule which would have entitled the
former owner of a slave to administer the personal property of the salve after his death is considered to
be repugnant to natural justice, equity and good conscience.

In Nzekwu v. Nzekwu (1989) 3 S.C.N. J. 167, the rule of Onitsha customary law which entitled
the head of the family to alienate a deceased’s property while the widow is still alive was held by the
Supreme Court to be barbarous and uncivilised and repugnant to natural justice, equity and good
conscience.

In the case of Okonkwo v. Okagbue (1994) 9 NWLR Pt. 368 p. 301, the Supreme Court declared
that the customary law which recognised a marriage between a dead man and a living woman was
repugnant to natural justice, equity and good conscience.

In the case of Anekwe v. Nweke (2014) NWLR (pt. 1412) 392, the court clearly held that the custom of
the Anambra people which denies the widow of a deceased husband entitlement to her late husband’s
landed properties was repugnant to natural justice, equity and good conscience.

The above cases exemplified situations where customary law rules were subjected to the validity
test and did not pass the test.

There are however instances where the customary law rules were subjected to the validity test and the
same passed the test. So long as customary law passes the validity test, such custom is adopted as part of
law governing a particular set of circumstances.

In Ogiamien v. Ogiamien (1967) ALL NLR 245, the Supreme Court held that the Benin
customary law of inheritance under which the eldest surviving son of a hereditary chiefs inherits all the
property of his father is not repugnant to natural justice, equity and good conscience.

In Amachree v. Goodhead (1923) 4 NLR 101, the issue was whether an illegitimate child born to
the chief’s household after the death of the mother’s husband belonged to the chief’s household. The
mother of the child had no issue for her husband before he died. The court accepted the local custom as
not being repugnant to natural justice, equity and good conscience and held that the child belonged to
the chief’s household.

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The above cases are cases in which the repugnancy test has been applied. But in some other
cases, the courts have evaluated the result of applying the rule rather than the rule itself in reaching their
decisions.

A case illustrating failure to appreciate the place of possible result of the application of customs
is the case of Mariyama v. Sadiku Ejo (1961) N.R.N.R. 81 involving a custom under Igbirra customary
law whereby any child born within ten months after a divorce was the property of the former husband of
the child’s mother. It seemed clear in that case that the former husband was not the father of the child.
The court therefore declared that the rule was invalid with respect to the case. The court then stated “we
must not be understood to condemn this native law and custom in its general application. We appreciate
that it is basically sound and would in almost every case be fair and just in its results”. The court
nevertheless refused to enforce the rule in this case on the ground that it is repugnant to natural justice,
equity and good conscience since it would have taken a child away from the couple who were generally
acknowledged to be the parents.

A custom which is invalid for any particular purpose is invalid for all other purposes.

Incompatibility test

Various enactments direct the courts to enforce applicable customary law which is not incompatible
with some laws. Many of the enactments provide that for a customary law to be enforced, it must not be
incompatible with “any law for the time being in force”. Others provide that it must not be incompatible
with any written law. For example, section 26(1) of the High Court Law of Lagos State provides as
follows: “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 nor incompatible either
directly or by implication with any law for the time being in force”.

Section 13(1) High Court Law 1964 of Mid-Western Nigeria Statute provides as follows: “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 nor incompatible either directly or by
implication with any law for the time being in force”.

It has been argued that “any law for the time being in force” includes English law in force. Thus,
in Re Adadevoh (1951) 13 W.A.C.A. 304 at 310, the West African Court of Appeal expressed the view
that “any law in force” included the rules of the common law as to the applicability or enforceability of
claims contrary to public policy. Of course, if any law includes the common law, it also includes the
other classes of the received English law, namely, equity and statute.

Similarly, in Adesubokan v. Yinusa, the Supreme Court of Nigeria expressed the view that the
term “any law” in section 34(1) of the High Court Law of the Northern States included the received
English statutes of general application. The issue raised in this case was whether a Moslem testator
could by a will made in accordance with the Will Act 1837 (a received English statute of general
application) validly disposed of his property in a manner inconsistent with Maliki law (a version of
Moslem law applicable in the Northern States). Under Maliki law, a Moslem testator cannot give more
than one-third of his estate to persons other than his heirs, and the dispositions to his male children must
be in equal shares. The learned trial judge assumed that the term “any law” included the received

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English statute. But he went further to hold that English law does not apply. He did this by bringing in
aid a proviso to that section which states that “and nothing in this law shall deprive any person of the
benefit of any such native law and custom”. The Supreme Court accepted the view that the term “any
law” included the received English law and statutes of general application and refused to apply the
Moslem law.

Admittedly, it is arguable that normally the words “any law for the time being in force” may be
construe to include the received English law and English law applying directly to Nigeria. But it should
be noted that customary law is so inconsistent with English law that prescribing an incompatibility test
by reference to English law will result in virtual abolition of customary law. It does not seem that such a
destructive effect is intended by such legislation. Consequently, the decision of the court in the case of
Jadesimi v. Okotie Eboh (1996) 2 DTLR 1 seem to have taken this criticism into account when the
Supreme Court held that the circumstances of Nigeria militate against the application of section 18 of
the Will Act of 1837 (a statute of general application) to nullify a ‘Will’ made prior to contracting a
marriage under the marriage Act.

On the other hand, the interpretation of the term “any written law” does not appear to raise any
controversy. The term is used in the High Court laws of the Western States. The interpretation laws of
those states defined “written law” in such a way as to exclude the received English law. Consequently,
in those states, a rule of customary law that is inconsistent with the received English law (so long as it is
not repugnant to natural justice, equity and good conscience or contrary to public policy) would be
declared valid. But if it is inconsistent with any local enactment, it could be declared invalid.

Public Policy test

A custom shall not be enforced as law if it is contrary to public policy, or is not in accordance
with natural justice, equity and good conscience. The consensus of some writers is that the public policy
test should be eliminated since public policy is usually very unruly horse and when once you sit astride
it, you never know where it will carry you. Among the three validity tests, public policy test is the least
used. There are only a few reported cases in which reference has been made to public policy in relation
to customary law. In other words, the public policy test is rarely used.

In Re Adadevoh (1951) 13 W.A.C.A. 304 at 310, although the court held the custom considered
in each as contrary to public policy, no reference was made to the Evidence Act.

The test of public policy was considered as a common law rule forming part of the
incompatibility test. A case in which public policy was mentioned in relation to customary law was Cole
v. Akinyele (1960) 5 F.S.C. 84 in which the Federal Supreme Court held that the same Yoruba custom of
legitimation by acknowledgment of paternity was void on the ground of public policy in its application
to a child born outside wedlock during the subsistence of a marriage under the Marriage Ordinance.

In Amachree v. Kalio (1914) 2 N.L.R. 108, this case concerned fishing rights in the New Calabar
River. In that case, the judges made some reference to public policy when evaluating the custom
involved. The court held the custom to be invalid for repugnant to natural justice, equity and good
conscience and equated this test to inconsistency to public policy. It is important to state that when this
case was decided, the evidence Act was not yet in existence. Presently however, Section 18(3) of

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Evidence Act 2011 captures this test when it provides that “a custom shall not be enforced as law if it is
contrary to ‘public policy’, or is not in accordance with natural justice, equity and good conscience”.

All the enactments starting criteria for determining the validity of customary law contain the
repugnancy test but only the Evidence enactments contain as a second test the criterion of public policy.
The other enactments contain the criterion of incompatibility with any local enactments as a second test.
It is not easy to understand the intention of the legislature in introducing the test of public policy. It
could be that the legislatures were of the opinion that “contrary to public policy” meant incompatibility
to any other enactment.

Tutorial Question
The current position of the judicial authorities in Nigeria today is that a rule of customary law which is
inconsistent with the Received English Law, so long as it passes the validity test will be allowed to
stand. Critically examine this statement with the aid of decided cases on the point.

ESTABLISHING CUSTOMARY LAW

As a general rule, a party is not expected to prove any law by calling evidence to prove it. It is
expected or presumed that judges know the law (juria novi curia). Parties are therefore only saddled
with the duty of proving facts asserted by them.

However, the converse is the case with customary law. A rule of customary law has to be proved
or established before the courts because it is regarded as fact. The court can only judicially notice a
custom that has been proved frequently. This was formulated by the Privy Council in the Ghanaian case
of Angu v. Attah when the Privy Council stated that “as is the case with all customary law, it has to be
proved in the first instance by calling witnesses acquainted with the native customs until the particular
customs, by frequent proof in the courts have become so notorious that the courts will take judicial
notice of them”.

Also, the rule that customary law has to be proved or established before the courts was reiterated
in the Nigeria case of Giwa v. Erinminokun (1951) 1 All N.L.R. 294 when the court stated that “it is a
well established principle of law that native law and custom is a matter of evidence to be decided on the
facts presented before the courts in each particular case, unless it is of such notoriety, and has been so
frequently followed by the court that judicial notice would be taken of it without evidence required in
proof.

This principle is codified in section 16(1) & (2) of the Evidence Act 2011 which provides as
follows;

(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be
judicially noticed or can be proved to exist by evidence
(2) The burden of proving a custom shall lie upon the person alleging its existence.

Two methods of establishing customary law are as follows; (i) Evidence, and (ii) by Judicial notice.

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Evidence

Customary law can be proven by calling witnesses as in most cases the burden of proving a custom
lies upon the person alleging its existence. This can be done by calling witnesses to testify on his behalf.
The court can also suo motu (on its own accord) invite experts to testify.

The relevant statutory provisions are section 57(1) and section 59 of the Evidence Act.
Accordingly, section 57(1) of the Evidence Act provides that “when the court has to form an opinion
upon a point of native law or custom, the opinions upon that point of persons specially skilled in native
law or custom are relevant facts”.

Similarly, section 59 of the Evidence Act provides that “in deciding questions of native law and
custom, the opinions of native chiefs or other persons having special knowledge of native law and
custom and any book or manuscript recognised by natives as a legal authority are relevant”.

Evidence of assessors are also taken into consideration. Assessors are persons who are usually
experts in the subject matter of the case under consideration. They are those non-judicial officers who sit
with the judge and members of the members of the court. They are however not members of the court.
They are only experts in the native law and custom under consideration.

Judicial Notice

This is the second method of establishing customary law. Customary law is regarded as fact
which must be established before the law. The assumption is that the judge knows the law, so you are
not expected to teach him the law but all you are required to do is to cite the law. Section 17 of the
Evidence Act 2011 empowers the court to take judicial notice of customary law. The section provides
that “a custom may be judicially noticed when it has been adjudicated upon once by a superior court or
record”. Section 73 now section 122 of the Evidence Act 2011 provides that no fact of which the court
must take judicial notice under this section needs to be proved.

Books and Assessors

Apart from the two methods discussed above, another way of proving or establishing
customary law is the use of books of authority. Established books are relied on by lawyers as
books of authorities or simply as legal authorities. The lawyers can cite books in the course of
their arguments in court and the views and opinions expressed in those books are strongly
persuasive, and in some cases, binding.

In using textbooks or manuscript to prove customary law, caution must always be

exercised because custom is dynamic. It changes with time. What may have been custom of a
particular people with regard to a particular issue in 1960 for example, may no longer be the
custom today. A later custom can upstage an old one if it can be proven that the new one is the
one currently in use in the community. In other words, if a customary rule judicially noticed has
been replaced by another one and the later custom is established by evidence before a court and
accepted, the previous judicially noticed customary law rule must give way for the later rule. For
example, prior to 1960, the Bini custom with respect to Igi-ogbe was that the eldest surviving
son of a deceased father inherits the house where the father lived and died while the rest children

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then take the other houses which in some cases may be more sophisticated or standard than the
Igi-ogbe. However this practice engendered series of complaint by the eldest children who feel
they were being cheated. Consequently, the Bini Council in 1960 reviewed the custom, and
currently, the eldest son is at liberty to choose from the number of house which the deceased
father may have left behind. In effect, the old custom has been upstaged.

Before a customary law or rule can be judicially noticed, two conditions must be
fulfilled, viz;

1. The customary law must have been acted upon by a court of superior or co-ordinate ju`risdiction
in the same area. Some authorities are of the view that for a case to be established, it must have been
applied several times. For example, the Bini law of inheritance. The Supreme Court has taken judicial
notice of this. All that is needed to be done is to cite instances instead of reading it all over again. The
Supreme Court even declared it as accepted. The view that for a case to be established, it must have
been applied several times was given judicial notification in Larinde v. Afiko (1940) 6 W.A.C.A. 108,
when the West African Court of Appeal held that the decision in one case cannot be held to amount to
“frequent proofs in court”. In Onisiwo v. Fagbenro (1954) 21 N.L.R. 3, the court judicially noticed a
customary rule which has been applied several times. Awoyegbe v. Ogbeide (1988) 3 SC. 167 at 179, the
Supreme Court in judicially noticing the principles governing the acquisition of valid title under Bini
Customary Law stated thus: “the incidents of Bini Customary Law with regards to the transfer of legal
estate in Bini land have been subject of so many decisions in this court that one can now accept them as
notorious facts which any court of law can take judicial notice of. These principles have been
established in a long line of cases among which are Okeaya v. Aguebor (1970) N.S.C.C. 1; and Gold v.
Osaseren (1970) 1 All N.L.R. 125. It is however pertinent to state that sometimes, the crucial factor may
not be the number of times the custom has been applied but the evidential value which can be derived
from a previous decision. For example, in Cole v. Akinyele (1960) 5 F.S.C. 84, the then Federal Supreme
Court accepted a customary law rule which has been previously applied only once.
2. The persons concerned by the rule must regard it as binding upon them. Even when the custom has
been judicially noticed, that is not the end of it. If a custom noticed in 1959 for example comes up, one
can later allege another custom that will displace the one that has been previously noticed. A later
custom can upstage an old one if it can be proven that the new one is the one currently in use in the
community. In other words, if a customary rule judicially noticed has been replaced by another one and
the later custom is established by evidence before a court and accepted, the previous judicially noticed
customary law rule must give way for the later rule. Judicial notice can also be taken of registered
declarations of customary law. In Oladele v. Aromona II the Supreme Court held that a registered
declaration removes/obviate/preclude the necessity of proof by oral evidence in court.

Tutorial Question

Osaro and his brother are before the Benin High Court over a house which belonged to their deceased
father. Osaro intends to rely on the Bini Customary Law of inheritance in support of his case. Discuss the
possible ways Osaro could establish evidence of customary law before the court.

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APPLICATION OF CUSTOMARY LAW

Once a customary rule has passed the applicable test of validity, then it can be deemed to be
applicable to a given case. Sometimes however, it is not possible to say whether it is English law or
customary law that is applicable. The question of which law is applicable is usually resolved before the
case is decided. Sometimes, there is difficulty as to which customary law is applicable. This topic shall
be treated under two headings, viz;
1. Internal conflict between English law and customary law, and
2. Internal conflict between systems of customary law.

It is necessary to understand the various phrases used by the different enactments to describe the
parties to which the rules apply.

Native: any person whose parents come from a tribe in Nigeria

Native Foreigner: a person not being a native of Nigeria whose parents were members of a tribe or
tribes indigenous to some part of Africa and the descendants of such person.

Non-Native: none of the parents come from Nigeria.

Non-Nigerian: a non-native including a native foreigner

Persons of Nigeria Descent: a native of Nigeria excluding a native foreigner

Person not of Nigeria Descent: a non-Nigeria or non-native including a native foreigner.

Rules governing internal conflicts between English law and customary law are contained in the
various State High Court enactments. All the rules are similar in wording, but there is a difference in the
classification of parties for the purpose of applying the rule. The High Court Law of Lagos State and the
High Court Law of the Northern State classify parties as “Natives” and “Non-Natives”.

The High Court of the former Western Region classifies parties as “Nigerians” and “Non-Nigerians”.
And the High Court Law of Eastern State deals with “Persons of Nigeria Descent” and “Persons who are
not of Nigeria Descents”.

INTERNAL CONFLICTS BETWEEN ENGLISH LAW AND CUSTOMARY LAW

The general rule is that when there is a case between natives, or Nigerians or persons of Nigeria
descents, customary law would apply. It follows that in every jurisdiction in the country, the general rule
is that customary law is the law applicable in case between Nigerians. The rule is subject to certain
exceptions under section 13(3) of the High Court Law of Bendel State. The two exceptions are that
customary law would not apply:

1. When there is an agreement either expressly or impliedly to be bound by English law, or

2. When the transaction giving rise to the action is unknown to customary law.
Agreement to be bound by English law
If any of both parties to a transaction agreed or if it appears from the nature of the transaction that
their obligations in connection with such transaction should be exclusively regulated otherwise than by
customary law, customary law is not applicable. In such cases, English law is normally applicable. Even

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where there is no such express agreement, the court can infer from the nature of the transaction that the
parties had agreed that English law was to be applied. For example, in Okolie v. Ibo (1958) 11 R 11
L.R.G., the court had to determine what law govern a dispute on petrol supply between two Ibos resident
in Jos in Northern Nigeria. In that case, one of the parties was a transport owner and the other operated a
filling station. The court express the view that having regard to their respective occupations and the
nature of the transaction between them and the commodity in which they dealt, the parties did not intend
that either Moslem law or Ibo law should apply. The court expressed the view that the only presumption
which seems open to a court to make is that the parties intended that their relation (transaction) should
be regulated by English law.
The rule is that an agreement to be bound by English law operates only in respect of the particular
matter for which it was made. There is no law that once a person has agreed to one of his legal
obligations or relationships to be governed by English law he must prima facie be taken to have thereby
agreed that English law should be applicable to all related matters. In the case of Nelson v. Nelson
(1951) B.W.A.C.A. 248, three brother jointly held a piece of land under customary law. Part of the land
was later compulsorily acquired by the government and compensation was paid to the eldest brother.
With the compensation money, the eldest brother bought another plot which was transferred to him by a
conveyance in English law form. The other brothers were aware of this but they had the intention that
the newly purchased land should be held in the same way as the plot acquired by the government. But
the eldest without the consent of the other two convened it. The other brothers then went to court to
assert their right under customary law. The West African Court of Appeal rejected the contention of the
defendant that since the two brothers had agreed to the conveyance of the land to their elder brother
being in English law form, then, they must be taken to have agreed that the subsequent transactions
should be governed by English law. The plaintiffs’ customary law therefore remained and the court
granted their requested relief.
The agreement to be bound by English law is often express but sometimes, it may be implied. In
Green v. Owo (1936) 13 N.L.R. 43, the plaintiff bought a piece of land at a public auction and he was
given documents of title phrased in English conveyance form, and it was clear that he intended the
transaction to be govern by English law. The land had been openly occupied for nearly twenty years by
the defendant and no one had challenged his title. The plaintiff brought an action against the occupier
claiming possession. The defendant relied on English Statute of General Application, and the plaintiff
argued that since he did not enter into a contract with the defendant, English law cannot apply between
the parties. But the court held that since he agreed that his position should be determined by English
law, the mere fact that the agreement did not create a contract between the plaintiff and the defendant
did not enable him to revert to this customary right against the defendant.
Transactions unknown to customary law
The second exception to the general rule that customary law govern disputes between Nigerians is
that no party is entitled to claim the benefits of customary law if it appears that the transactions involved
are unknown to customary law. In each circumstance, customary law will not be applicable. Clearly,
where a transaction is unknown to customary law, customary law cannot govern it and obviously
customary law has no benefit of its own to bestow upon any person in relation to the transaction. Certain
decisions on the point simply suggest that once a person makes a “Will” or enters into a marriage under
the Marriage Act (Court Marriage), there is a presumption that his estate is to be governed by English
law. In Apatira v. Akanke, the court held that a ‘Will’ in English form but having a technical flaw that
renders it invalid under the Will Act cannot be admitted under probate under Islamic law.
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It is also pertinent to mention that the use of writing does not automatically indicate that the
transaction is unknown to customary law. This point was stated by the court in Rotibi v. Savage (1944)
17 N.L.R. 77,
Also, existing rule of customary law cannot be applied to circumstances which are not accepted by
the members of the community in question as being governed by the rule at the material time. However,
once a rule is accepted and in that form it extends to a new set of circumstances, it is to be applied if it
passes the validity test. This view was affirmed by the court in the case of Salau v. Aderibigbe (1963)
M.N.L.R. 80 at 86 when Charles J., held that customary law means those rules of conduct which the
persons living in a particular locality have come to recognise as governing them in their relationship
with one another and between themselves and things.
Cases between Nigerians or Natives and Non-Nigerians or Non-Natives
The general rule is that in cases between natives and non-natives, English law would apply. For this
purpose, a Limited Liability Company is regarded as a non-native. An illustration of the general rule that
in cases between natives and non-natives English law applies is found in Koney v. Union Trading
Company, a Gold Coast case between a native and a non-native, the company being a non-native. In that
case, the plaintiff a native brought an action against a company (defendant). The defendant relied on the
English Statute of Limitations but the plaintiff contended that English law should not govern the case
since he was a native. The West Africa Court of Appeal held that in case between a native and a non-
native, English law is applicable.
For every general rule there is an exception. Thus, in this case, the exception is that English law will
not apply in a case between a native and a non-native if it appears to the court that substantial injustice
would be done to either party by a strict adherence to English law. Thus, in Nelson v. Nelson, supra,
customary law was applied in spite of the fact that the case involved two natives on the one hand, and a
native and two non-natives on the other hand. The West Africa Court of Appeal expressed the view that
substantial injustice will be caused by the application of English law which would have resulted in
denying the plaintiffs of the customary law rights. In cases between natives, there is a rule that if the
parties agree that the transaction would be governed by English, customary law will not be applied. But
there is no provision permitting a non-native to submit voluntarily to customary law. The decision of the
court in Savage v. Macfoy (1909) Ren 504 shows that a non-native cannot voluntarily change his status
so that he would become subject to customary law. in that case, one Claudius Macfoy, a descendant of a
rescued slave and born in Freetown, Sierra Leone settled in Lagos. He married the plaintiff a native of
Lagos under native law and custom. Under the existing law then, Macfoy was regarded as a non-native
of the protectorate of Nigeria. After Macfoy’s death, a dispute arose between his brothers and sisters and
the plaintiff. The question for the determination of the court was whether the marriage between Macfoy
and the plaintiff was valid. The court held that although the requisite customary formalities had been
complied with, the purported marriage could not stand since Macfoy did not have the capacity to enter
into it. The rationale for this rule was given by Osborne CJ. According to him, since Macfoy as a non-
native was subject to English law under which law polygamy is unlawful, he lacked the capacity to
contract that kind of marriage. The only kind of marriage he had capacity to enter into is the kind of
marriage known to common law which is monogamous marriage. In other words, he couldn’t had
submitted himself voluntarily to customary law of Lagos so as to validly enter into polygamous
marriage since there is no provision permitting a non-native to submit voluntarily to customary law.
However, a native may voluntarily change his ethnic group and adopt a new ethnic group if he so
please. Where this happens, his affairs on his death will be governed by the native law and custom of his
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adopted ethnic group. Authority for this view can be found in Olowu v. Olowu, where the deceased in
this case, Adeyinka Olowu, a Yoruba man by birth belonging to the Ijesha sub-ethnic group but lived
most of his life in Benin City, married Benin women who gave birth to all his children. The deceased
later naturalized and became a Benin native. Upon the death of the deceased who died intestate, some of
the children brought an action against the other children contending that his estate ought to have been
distributed according to Ijesha customary law rather than Benin customary law. a view which was
rejected by the High Court of Justice in Benin and the Court of Appeal. They held that although the
deceased was a man of Yoruba extraction, he spent most of his life in Benin City, naturalized and
acquired considerable properties in Benin City. On this ground, his personal law and therefore the law
governing the distribution of his estate at his death was Benin customary law not his original customary
law (that is, Ijesha – Yoruba customary law).

Tutorial Question
What are the exceptions to the general rule that in case between two natives, it is absolutely necessary
that customary law must be applied?

INTERNAL CONFLICTS BETWEEN DIFFERENT SYSTEMS OF CUSTOMARY LAW

Where it is determined that customary law governs a case, the question of choosing the
appropriate system of customary law arises. In the former Eastern States, the courts are required to
administer customary law prevailing in the area of jurisdiction of the court or binding between the
parties. Similarly, section 20(1)(a) of the Area Court Edicts of former Benue – Plateau State which is
characteristic of the Northern State provides that an Area Court should apply the native law and custom
prevailing in the area of jurisdiction of the court or binding between the parties.
The phrase “native law and custom prevailing in the area of jurisdiction” is not defined in the
provisions. However, the expression “law prevailing in the area of jurisdiction of the court” was
interpreted in R v. Ilorin Native Court where Ademola J., said that the law prevailing in an area was the
law predominant in the area. According to the case therefore, the customary law of a minority group
within area of jurisdiction of a court cannot be the customary law prevailing in the area. It is suggested
that in cases of succession to property the applicable law should be general being the law binding
between the parties rather than the law of the area of jurisdiction of the court where the two laws are
different. The general legal opinion is that it will be consistent with the principles of natural justice,
equity and good conscience to apply the personal customary law of the deceased to any person claiming
his property by devolution on death.
The conflict rules dealing with civil cases are as follows:
1. The particular native law and custom which the parties agreed or intended should regulate their
obligation in connection with controversy before the court.
2. A combination of two or more native laws or customs which the parties agreed or intended could be
merged together to arrive at a decision.
3. In the absence of any agreement or intention of presumption, the court can decide what it wants to
do.

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The rules of the State in the former Western Region and Lagos are similar. The rules in these states shall
be treated under the following headings, viz:

1. Land cases, and

2. Succession cases

Land cases

The general rule is that in land cases, the appropriate customary law is the customary law of the place
where the land is situated (Lex Situs). One advantage of this rule is that in general, a particular piece of
land is always subject to the sale system of customary law.

The general rule is subject to the exception that “where the customary law applying to land prohibits,
restricts, or regulates the devolution on death to any particular class of persons of the right to occupy
such land, it shall not operate to deprive any person of the beneficial interest in such land or in the
proceeds of sale thereof to which he may be entitled under the rules of inheritance of any other
customary law”. It is suggested that the words “any other customary law” in this provision means any
other customary law to which the party in question is subject. The words could not have been intended
to mean “any other customary law whatsoever”.

Succession cases

By section 14(4)(5) of the High Court Law of Bendel applicable in Edo and Delta States in all causes
and matters arising from inheritance, the appropriate customary law shall be the customary law applying
to the deceased. This is subject to any other customary law relating to land. Thus, if a deceased had land
in a territory of an ethnic group outside his home, the distribution of his land among his children will be
govern by his own person customary law but that land is in addition subject to the customary law
relating to the land of the ethnic group territory the land is situated.

A native may change his ethnic group voluntarily. If he does so, his affairs on his death will be
governed by the native law and custom of his adopted ethnic group. In Olowu v. Olowu, the deceased in
that case, Adeyinka Olowu was a Yoruba man by birth belonging to the Ijesha sub-ethnic group. He
lived most of his life in Benin City, he married Benin women who gave birth to all his children and who
are plaintiffs and defendants in the case. In 1942, the deceased applied to the Oba of Benin to be
naturalized as a Benin citizen. His application was granted. As a result of his status as a Benin man, he
was able to acquire many landed properties both within and outside Bendel State. The deceased died
intestate. In 1960, some of the children took the others to court claiming that his estate ought to have
been distributed according to Ijesha customary law rather than Benin customary law. The High Court of
Justice in Benin and the Court of Appeal disagreed with this contention. They held that although the
deceased was a man of Yoruba extraction, he spent most of his life in Benin City, naturalized and
acquired considerable properties in Benin City. On this ground, his personal law and therefore the law
governing the distribution of his estate at his death was Benin customary law not his original customary
law (that is, Ijesha – Yoruba customary law).

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Other Civil Cases

The conflict rule in this area can be found in section 13(4)(c) of the High Court Law of Bendel State
and section 20(3) of the Customary Court Law of the rest of the States of the former Western Region
which provides as follows: “subject to the provisions of paragraph a and b of this subsection,

(a) In civil cases or matters where: –

(i) Both parties are not natives of the area of jurisdiction of the court, or
(ii) The transaction, the subject of the cause or matter was not entered into in the area of the
jurisdiction of the court, or
(iii) One of the parties is not a native of the area of jurisdiction of the court and the parties agreed
or may be presumed to have agreed that their obligations should be regulated wholly or
partly by the customary law applying to that party, the appropriate customary law shall be the
customary law binding between the parties.
(b) In all other civil causes and matters, the appropriate customary law shall be the law of the area of
jurisdiction of the court. With respect to civil cases which are not land or succession cases and which
are outside sub-paragraph (i) – (iii) of paragraph (a) above, the appropriate customary law is the law
of the area of jurisdiction of the court.

Tutorial Question

1. Ola was born in Kaduna State. When he was 20 years old, he moved over to Enugu State. While
there, he bought a parcel of land on which he constructed a bungalow of three bedrooms. He also
acquired some household items such as plasma television, an air-conditioner, and a walking stick.
Unfortunately, Ola died intestate. With the aid of decided cases, advice Ola’s children on the law
which will govern the distribution of Ola’s properties in Enugu State.
2. Emeka is an Ibo man by birth. He lived most of his life in Benin City. He married Benin women
who gave birth to all his children. In the year 2015, Emeka naturalized and became a Benin citizen.
Emeka has many landed properties both within and outside Edo State but he died intestate. Some of
the children have come to meet you to represent them in the court contending that their father’s
estate should be distributed according to Ibo customary law rather than Benin customary law. Write
your brief.

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JUDICIAL PRECEDENT

Judicial precedent or stare decisis as a source of law refers to laws established by previous cases
which must be followed in actions involving identical circumstances. Judicial precedent consists of law
found in judicial decisions (i.e. decisions of court). Case law or judicial precedent as it is called is a
judgement of a court cited as an authority for the purpose of persuading the court to decide a similar
case on the same principle as the previous one.

The court system operates in such a way that lower courts are bound by the decisions of higher
courts. This is the common law principle of stare decisis which consists of applying those rules of law
which are derived from legal principles and past decisions of courts.

In Ogunsola v. Nicon [1998] 11 NWLR (Pt. 575) 683 at 687, the Court of Appeal stated that for
the sake of attaining uniformity, consistency and certainty, those rules where they are not plainly
unreasonable and inconvenient, must be applied to all cases which arise and courts are not at liberty to
abandon them.

However, this is not to say that a lower court can refused to follow a decision of a higher court
on the ground that it is unreasonable or inconvenient, for the same court went further to state that the
Court of Appeal is subject to and must always abide by the decisions of the Supreme Court
notwithstanding that such decisions are inconvenient or unreasonable to it or whether the decisions have
deprived or fettered the right of any litigant.

The rationale for the doctrine of stare decisis was stated by Nnaemeka Agu JCA (as he then
was) in the case of Nigeria Airways Ltd & Anor v. Ebeigbe (1986) 1 Q.L.R.N. 22 at 32 when he said “if
the Court of Appeal should refuse to follow the decision and directive of the Supreme Court or as High
Court refuse to obey the decision and directive of the Court of Appeal or a Magistrate Court treats with
contempt a decision or directive of the High Court, we shall be on a sure path to anarchy”.

It is imperative to state that judicial precedent could be binding or persuasive. Precedents are
binding when they are given by a court of higher rank and all courts of lower rank must follow the
reasoning inherent in such decision.

On the other hand, precedents are persuasive when they are given by a court of equal or
coordinate jurisdiction (rank). For example, the decision of a State High Court remains persuasive for
other State High Courts.

The doctrine of stare decisis has two components. The first is the rule that a lower court must
follow the decision of a higher court and the rule that like cases must be treated alike. In effect, lower
courts must follow previous decisions of higher courts where the material facts are similar. For example,
if the facts of a case are A, B, C, and D and after due consideration, the judge accepts fact A, B, and C
as material facts and discard fact D and gives a judgment Y, the doctrine of judicial precedent states that
in any other similar case where the material facts are A, B, and C, the judge must also give a decision
which must be Y. The lower courts must look for the ratio decidendi of a case (reason for the decision)
not obiter dictum (statement by the way).

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The second component of the doctrine of stare decisis operates to bind courts to follow their
earlier decisions if such decisions have not been overruled by a higher court.

Ratio Decidendi

The ratio decidendi of a case can be defined as the material facts of the case and the decision
thereon. It means the reason for a decision. In determining the ratio decidendi of a case, the courts must
consider the reason for the decision as stated by the judge. Where the court in the previous decision
clearly states the principle on which it based its decision, the court in a later case would usually regard
that principle as the ratio decidendi. In some cases, the court does not state the reason for the decision or
the principle of law on which the decision is based. A judgment may have more than one ratio
decidendi. Where a court bases its decision in a case on more than one legal principle, each principle
constitutes a ratio decidendi. Example is the Australian case of Timbu Kolian v. The Queen (1968) 119
C.L.R. 47. At the trial, the accused person relied on section 23 of the Queensland Criminal Code
which provides that a person is not criminally responsible for an act or omission

i. Which occurs independently of the exercise of his will, or

ii. For an event which occurs by accident.

In that case, six justices reached the same decision for three different reasons. What then is the reason
for the decisions or ratio decidendi?

Another example of a case with more than one ratio decidendi is the Nigeria case of Jacob v.
L.C.C (1950) A.C 369 which was decided on appeal by more than one justice and each based his
decision on different limb of law.

Newly appointed member of the lower bench are often faced with the problem of how to identify
and apply the principle ratio decidendi of a case. In response to this question of how to determine the
ratio decidendi of a case, Goodhart’s approach focused on the facts treated as material by the trial
judge, he then summarised the rule for determining the ratio decidendi of a case as follows:

i. The principle of a case is not found in the reasons given in the opinion (Obiter Dictum).
ii. The principle is not found in the rule of law set forth in the opinion.
iii. The principle is not necessarily found by a consideration of all the ascertainable facts of the case and the
judge’s decision.
iv. The ratio decidendi of a case is found by taking account of two key things:
a. The facts treated by the trial judge as material, and
b. His decisions as based on these facts

Obiter Dictum

An obiter dictum is not part of the ratio decidendi of a case and is generally not binding. Obiter
dicta are statements which are usually judges’ opinions and are either illustrations or hypothetical facts
which are not material or proved. Oxford Dictionary of Law defined obiter dictum as a statement made
by a judge while giving judgment which is not essential to the decision in the case being tried. Black’s
Law Dictionary defines obiter dictum as word of an opinion entirely unnecessary for the decision of the
case. A remark made or opinion expressed by a judge in his decision upon a case “by the way”

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(comment made in passing) that is incidentally or collaterally and not directly upon the question before
him.

It is apposite to state that obiter dicta are not entirely useless. This claim was illustrated in the
case of Slack v. Leads Industrial Cooperative Society (1923) 1 Ch. 432 at 454 where Lord Sterndale
stated that obiter dicta are of different kinds and of varying degrees of weight. According to Abiola
Sanni in his book “Introduction to Legal Method” the weight given to obiter dictum depends on the
level of court within the judicial system that the obiter was made and the eruditeness of the judge who
makes it.

It has been argued that there are factors that affect the weight of precedent. These include inter alia:

1. Age: the greater the age of a precedent, the greater the level of reliance on it by the court.
2. The Status and Composition of a Court: the decision of Supreme Court Justice is accorded greater
weight compare to other courts of lower jurisdiction.
3. The Adequacy of Law Report (L.R): some Law Report focus on reporting decision of certain courts
especially courts of higher jurisdiction and focus less on court of lower jurisdiction, it automatically
cause greater weight to be accorded such decision since they serve as the only documented authority to
cite during trial.
4. The History of the Precedent: Precedents that have gained wide acceptance and approval over the year
are likely to be accorded higher weight than precedents that are relatively new which may have been
employed in few cases.

Per Incuriam

Incuriam literary means carelessness. Per incuriam is a mistaken decision by a court through
want of care. When a decision is said to have been reached per incuriam, it means that such decision has
been reach through ignorance (per ingnoratium). Since judges are presumed to know the law (juria novit
curia), how then can a decision be presumed to have been reached through ignorance? Decision can be
regarded as being reached per incuriam where a relevant statute or rule which would have effect on the
decision was not brought to the attention of the earlier court and the earlier court judge failed to address
his mind to such statute or rule of law in agreement with the general principle that the judge is presumed
to know the law (juri novit curia).

Regrettably, a lower court is bound to follow the decision of a higher court under the common
law doctrine of stare decisis even though such decision was reached per incuriam. That is, a Magistrate
is bound by a High Court decision and has no discretionary power as to whether it ought to follow the
decision or not. If the High Court decision is wrong, the Magistrate is still bound with it as it is not
within its jurisdiction to condemn a decision of the High Court. Any doubt can only be expressed as an
obiter dictum.

Conversely, where the judge himself realises that his decision was reached per incuriam, he is
not bound to follow such decision on subsequent matters. By implication, a higher court can overrule
itself in such deserving case.

For example, the Supreme Court even though it treats its earlier decision as binding, the court
has overruled itself in the case of Oladele v. Aromolaran, when Onu J.S.C. noted that ordinarily, the
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Supreme Court adhere to the rule of stare decisis and does not readily depart from its decisions. But the
court will not hesitate to accept when its decision is wrong and should be overruled.

Similarly, in Abdulkarim v. Incar Nigeria Ltd (1992) 7 SCNJ 366, the Supreme Court held that
although it will respect it previous decision, as a court of last resort which is not bound by precedent, the
court will not hesitate to overrule any decision of its own which she is satisfied was reached on wrong
principle, since this is the only way to keep the stream of justice pure.

Obaseki JSC in Ekperokun v. University of Lagos outlined the circumstances under which the
Supreme Court would overrule itself. According to the learned justice, the Supreme Court does not just
depart from its previous decision. It must be convinced that its decision was clearly wrong or erroneous
in law or that it was given per incuriam or that it has become a vehicle of injustice. The judgment of the
court in the case of Johnson v. Lawanson strongly suggest that the Supreme Court was of the opinion
that it could overrule its own previous decision in order to avoid perpetuating an error which if not
corrected would result in injustice. In effect, the Supreme Court would normally treat its previous
decisions with great respect but it would depart from a previous decision if in its opinion the decision
was wrong.

HIERARCHY OF COURTS IN NIGERIA

By hierarchy of court, we mean the order superiority of court in descending order (from highest
to the lowest). That is, the order of arrangement or ranking of court according to their jurisdiction
usually from higher to lower jurisdiction. Since precedents are either binding or persuasive, it becomes
necessary to know which court decision should have a binding authority over others as well as which
court should have a persuasive power over the other. . For this to happen, the legal system must have a
well organised system of courts. For easy, proper and effective operation of judicial precedent in
Nigeria, section 6 (5) (a-j) of the 1999 Constitution of the Federal Republic of Nigeria as amended
spells out the hierarchy of courts in Nigeria according to their jurisdiction. The hierarchy of courts in
descending order of authority in Nigeria is as follows:

1. The Supreme Court

2. Court of Appeal
3. (a). The Federal High Court, The State High Court, and The High Court of the Federal Capital Territory
and the States
(b) The Sharia Court of Appeal of the Federal Capital Territory and the States
(c) The Customary Court of Appeal of the Federal Capital Territory and the States
(d) The National Industrial Court
4. (a) The Magistrate Courts
(b) Area Customary Court
(c) Alkhali Court (found only in Northern Nigeria)
5. District Customary Courts

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Diagrammatically, the hierarchy of courts in Nigeria can be represented in a descending order thus’

Supreme Court

Court of Appeal

Fed High Court State High Court High Court of FCT

Sharia Court of Customary Court of National

Appeal of FCT & Appeal of FCT & the Industrial Court
the States State

Magistrate Court Area Customary Alkhali Court of

Court

District
Customary Court

It may be important to state that the above does not imply an exhaustive number of courts in Nigeria.
Section 6 (5) (g-h) of the 1999 constitution of the Federal Republic of Nigeria as amended provides for
the establishment of other courts as may be authorised by law. It is worthy of mentioning that courts like
the Magistrate Courts, Customary Courts, Area Courts, District Courts, Juvenile Courts, Coroner
Courts, etc are creation of the legal exercise of the law as conferred on both the National Assembly and
the State Houses of Assembly.

THE SUPREME COURT

The Supreme Court is the highest court in Nigeria and its decisions are binding on all other
courts in Nigeria. The Supreme Court replaced the Judicial Committee of the Privy Council as the
highest court in Nigeria by virtue of Section 120 of the 1963 Republican Constitution of the Federal
Republic of Nigeria. The decisions of the Supreme Court are binding precedents for all other courts in
Nigeria. This point was affirmed in the case of Odi v. Osafile where the court’s pre-eminence position
was emphasized by Obaseki JSC when he said “as a court of law and the highest and final court of
appeal in Nigeria, it cherishes its heritage of common law doctrines and in particular, the doctrine of
stare decisis as a sine qua non to certainty to the practice and application of law in Nigeria”.

The Supreme Court treats its earlier decision as binding. But in some deserving cases, the court
has overruled itself. In the case of Oladele v. Aromolaran, Onu J.S.C. noted that ordinarily, the Supreme
Court adhere to the rule of stare decisis and does not readily depart from its decisions. But the court will
not hesitate to accept when its decision is wrong and should be overruled.

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Similarly, in Abdulkarim v. Incar Nigeria Ltd (1992) 7 SCNJ 366, the Supreme Court held that
although it will respect it previous decision, as a court of last resort which is not bound by precedent, the
court will not hesitate to overrule any decision of its own which she is satisfied was reached on wrong
principle, since this is the only way to keep the stream of justice pure.

Obaseki JSC in Ekperokun v. University of Lagos outlined the circumstances under which the
Supreme Court would overrule itself. According to the learned justice, the Supreme Court does not just
depart from its previous decision. It must be convinced that its decision was clearly wrong or erroneous
in law or that it was given per incuriam or that it has become a vehicle of injustice. Okegbu v. The State.
The judgment of the court in the case of Johnson v. Lawanson strongly suggest that the Supreme Court
was of the opinion that it could overrule its own previous decision in order to avoid perpetuating an
error which if not corrected would result in injustice. In effect, the Supreme Court would normally treat
its previous decisions with great respect but it would depart from a previous decision if in its opinion the
decision was wrong and that too rigid adherence to it would lead to injustice.

COURT OF APPEAL

The Court of Appeal is bound by the decision of the Supreme Court of Nigeria and by its own
judgment. With respect to the doctrine of precedent, the Court of Appeal in Nigeria is to adopt the
practice of the Court of Appeal of England. The practice is stated in the English case of Young v. Bristol
Aeroplane Company (1944) K.B. 718 as follows “the Court of Appeal is bound by its previous decisions
subject to the following exceptions:

i. The court is entitled and bound to decide which of the two conflicting decisions of its own it will follow.
ii. The court is bound to refuse to follow the decision of its own which though not expressly overruled,
cannot in its opinion, stand with a decision of the Supreme Court of Nigeria.
iii. The court is not bound to follow decision of its own if it is satisfied that the decision was given per
incuriam or has been neutralized by public policy. This rule was canvassed by Achike JCA (as he then
was) in Co-operative & Commercial Banks v. Ozobu (1988) 3 N.L.R. (Pt. 451) 290 at 306-307”.

The direct application of the above principles by the Court of Appeal in Nigeria could be traced
to the case of Osamade v. Audud (1948) 12 W.A.C.A., where the West African Court of Appeal adopted
the approach of the English Court of Appeal. Until the abolition of the West African Court of Appeal in
1955, the court occupied a corresponding position in the Nigeria judicial hierarchy as that occupied at
the moment by the Nigerian Court of Appeal.

In criminal matters, the English Court of Appeal is very reluctant to depart from its own previous
decision. Though it does not consider itself bound by its previous decisions, but it would refuse to apply
any of its rules which in its opinion is considered to be wrong.

THE HIGH COURT

All the High Courts, including the Federal Revenue Courts are bound by the decision of the
Supreme Court of Nigeria and the Federal Court of Appeal and its own. With respect to state matters
(that is, matters within the legislative competence of a State), the High Court of a State does not form
part of the hierarchy of court for any other state. Accordingly, the decisions of the High Court of a State
given in the exercise of its jurisdiction in State matter are not binding on any court in another State.
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High Courts like other courts in Nigeria are not bound by English decisions or decisions of other
common wealth countries. At best, those decisions are only persuasive. The only decision which the
High Courts are bound to follow are those of the Supreme Court, the Court of Appeal and its own. This
point has been judicially noticed in Nigerian Airways Ltd & Anor v. Ebeigbe (1980) 1 G.L.R.N. 22.

The Federal High Court is apparently of the same rank with the High Court of the state though
given exclusive jurisdiction in specific matter by virtue of Decree No. 107 of 1993.

The High Court of a State and the High Court of the Federal Capital Territory are of co-ordinate
jurisdiction. Accordingly, the decision of a High Court is only persuasive precedent for another High
Court. In Barclay Bank v. Hassan (1961) W.N.L.R. 293, it was held that a judge of a High Court does
not feel himself bound by his own decision or by those of other judges of co-ordinate jurisdiction.

Legal maxims

1. Maxim nulla poena sine lege - there is no punishment without law

2. Audi alteram partem - all parties to a dispute must be given a fair hearing
3. Nemo judex in causa sua - no man should be a judge in his own cause.
4. Affirmati non neganti incumbit probatio - the burden of proof lies on the one who affirms not upon the one who denies
5. Ignorantia facti excusat - means that ignorance of fact excuses
6. Ignorantia juris non excusat - ignorance of law does not excuse.
7. Juria novit curia - it is for the court to know the law.
8. Ignorantia judicis est Calamitas Innocentis - the ignorance of the judge is the calamity of the innocent
9. Ratio Decidendi - the reason for the decision
10. Stare decisis – Judicial precedent
11. Pacta sunt servanda – promise must be kept

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