GG on Nigerian Legal system

(Godfather's Guide)
First week activity…

Course Coordinator Dr S. I

Course Outline
1.Introduction to Nigerian legal system
i. Nature of law
ii. Functions of law
iii. Classification of law in Nigeria
2. Sources of Nigerian Law
i. Received English law (common law , status of general application and equity )
ii. Customary law
iii. Islamic law (difference between islamic law and customary law)
(Alkamawa V. Bello) case of kwara judiciary and dija isa hashiru V bello isa hashimu.
Rasaki yunusa V adesu boka
iv. Local legislation ( laws made by the state and national house of assembly)
v. Case law or judicial precedent.

3. Customary law.
i. Characteristics of customary law
ii. Proof of customary law
iii. Validity of Customary law
a. Incompatibility test
b. Repugnancy test
c. Public policy test

4. Nigerian Statutes
i. Details of section 4 of the 1999 constitution.
ii. Interpretation of statutes
a. Golden rule
b. Mischief rule
c. Literal rule
d. Ejusdem generis rule

5. Judicial precedent ( stare decisis or case law )

6. Obita dictum - side comments of a

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and ratio decidendi

Second week lecture Notes Coordinated By Dr S.I salihu

Dated 16th August 2023

Introduction to Nigerian legal system

A system as known in its most common sense is an organized set of individual parts
that are interwoven which functions together as one. It can also be said to be a body of
various organs performing different various functions harmoniously.
In the legal sense , a legal system therefore , refers to the individual bodies or organs of
a state working together as a whole independently , in which one cannot function
without another making up the legal structure of a state or country.

For instance in Nigeria , the three arms of government or organs , which are the
judiciary , the legislative and the executive , each with its distinctive institutions , are
individual organs working harmoniously together as the legal system in Nigeria.

Therefore , the course legal system doesn't deal with specific laws , but rather deals
with and appreciates the whole legal structure and framework of a country's legal
system.
Legal system is like a map for law students and lawyers who didn't study law in Nigeria ,
enabling them to navigate, understand and appreciate the constitution , functions and
structure of its various institutions and the nature of its legal entity.
Basic Features of the Nigerian legal system

We operate on a tripartite legal system in Nigeria. A combo of three laws , which are
English law , customary law and islamic law.
Though some scholars argue that we operate a dual legal system in Nigeria. This is
based on the belief that islamic law is also a customary law.
A controversy which has been cleared in the famous decided case of Alkamawa V
Bello.
The basic Features of the Nigerian legal system are..
i. Judicial precedent - In Nigeria's legal system , the principle of stare decisis is
considered a fundamental source adjudication.
See the case john V. Okafor and Bashir Mohammed Dalhatu V Saminu turaki and
Ors
ii. Dual professional practice of law (advocate/solicitor)
iii. Supremacy of the constitution ( see section 1 sub 3 of the 1999 constitution) See
also INEC V. MUSA.

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Principles in the case
"the acknowledged supremacy of the Constitution and by which the validity of the
impugned provisions will be tested. First, all powers, legislative, executive and judicial
must ultimately be traced to the Constitution. Secondly, the legislative powers of the
legislature cannot be exercised inconsistently with the Constitution. Where it is so
exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution
has enacted exhaustively in respect of any situation, conduct or subject, a body that
claims to legislate in addition to what the Constitution has enacted must show that it has
derived the legislative authority to do so from the Constitution.

iv. Adherence to the Principles of Natural Justice which are -nemo judex in causa
sua(no one should be a judge in their own cause ....- It is one of the cardinal rules of
natural justice that no one should act as a judge in a case in which they have a personal
(vested) interest) and the principle of Audi alteram partem meaning ( let the other side
be heard as well ..... -It is the principle that no person should be judged without a fair
hearing in which each party is given the opportunity to respond to the evidence against
them.
These principles are entrenched in Section 36 of the 1999 constitution.

v. Separation of powers.

vi. Adversarial legal system - ( they are two modes of justice system practiced by
countries which are adversarial and inquisitorial legal systems. The inquisitorial process
can be described as an official inquiry to ascertain the truth, whereas the adversarial
system uses a competitive process between prosecution and defence to determine the
facts.) Nigeria practices the adversarial legal system.

vii. Codification of criminal law See Section 36 sub 12 of the 1999 constitution. The
position in this Section 36 (12) of the 1999 Constitution is that for a person to be
arrested, detained or prosecuted for a criminal offense: (i) There must be a written law,
(ii) The offense must be defined in the written law and; (iii) A penalty therefore must be
prescribed and they must all co-exist.
Meaning for any offense to be punishable in the eyes of the law it must have been
legislated or written by the house of assembly.
viii. Protection of Fundamental human rights.
(See chapter 4 of the 1999 constitution)
ix. Written constitution.
x. Independence of Judiciary (see section 292 (1) paragraph a) of the 1999 constitution.

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 Definition of law.
The definition of law has been a matter of controversy among various scholars , in the
sense every individual can give a good definition of what law is in the legal sense , but
then again , no individual no matter how knowledgeable is capable of giving a definition
free of criticism or defect when defining the law.
This can be seen in the following case
In AG Lagos state V Ukwa , the supreme court defined law as nothing but rules and
regulations of a particular country usually made up by the legislative arm of government
, which ordered the way persons , bodies and society should behave and the whole
system of rules of a country.
It is obvious that the definition above given by the learned supreme court justice is open
to a lot of criticism and loopholes. For instance , in the clause where he said 'made up
by the legislative arm of government' - obviously not all laws are made by the legislature
and not all human behaviors are regulated by the law.

Therefore any attempt to give a comprehensive definition of the law will always be futile.

Sir Williams Blackstone also defines law as the rule of action which is prescribed by the
superior and which the inferior is bound to obey.
This scholarly definition is also open to criticism in the sense that not all laws are
created by a sovereign for the people to obey.

However the understanding of law can be approached through other aspects such as
the features or characteristics of law , functions and classification of law.

Features/Nature of law
1. Dynamic/ flexible
2. Territorial/ boundaries
3. Enforcement
4. Sanctionable
5. Legitimacy/popular consent.

Functions of law
Some of the functions of law in a society or country are...
i. Peace & order
ii. Social conduct
iii. Ensure Justice
iv. Settlement of dispute
v. Outline the Duties and responsibilities of individuals and the government. (See the
case of Abubakar Dan shalla V the state).

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See also NAFDAC v. REAGAN REMEDIES
PRINCIPLE
"I also think this case should serve as useful caution or warning to government
agencies, to act within the scope of the law that created them, and with human face, in
dealing with fellow humans/citizens when they (Institutions) exercise their discretion in
service. Sealing up the Respondent for about 5 years, in the circumstances that
Appellant did, grounding Respondent's business and services, and hounding down the
company, as shown in the unsuccessful prosecution of the Respondent in in my view,
smacks of high-handedness, the Courts, persecution, impunity and misuse of statutory'
powers. With a little show of sensitivity and due care, Appellant would still have
discharged its oversight function over the Respondent without so much injury, and
saved the situation and the huge damages it has now caused itself and the Nation by its
misadventure. Appellant is expected to learn from this decision and pronouncement of
Court in its conduct and services, and be properly guided in the discharge of its duties.
See the case of The State Security Service & Ors Vs The Incorporated Trustees of the
Peace Corps of Nigeria: CA/OW/171/2016 delivered on 12/4/19, where we said: "The
1st Appellant and its leadership... are established and regulated by law and must act
within the confines of the law in the exercise of their discretion; they cannot be arbitrary,
excessive or overzealous in their the service, to undermine constitutional and
fundamental rights of members of the public they are enjoined to protect, defend and
serve." Per MBABA, J.C.A. (Pp. 76-77, Paras. B-C)

Classification of law
1. Private law ( family law /law of succession etc)
2. Public law (constitutional law/ criminal law)
3. Municipal law
4. International law
5. Civil and criminal law.
( See the case of FRN V osahon in the jurisdiction powers of police prosecution in a
court of law )

Sources of law
1. Received English law
i. Common law
ii. Equity
iii. Statute of General application
2. Customary laws. (Customary law in Section 258(1) of the Evidence Act, 2011 is
defined as a rule which in a particular district has, from long usage, obtained the force of
law. Elias CJN in kharie zaidan V fatima defines customary law as any system of law

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not being common law and not being a law enacted by any competent legislative bodies
which is enforceable between its parties subject to it.

The supreme court also , in onyewumi V ogunesan said the living law of the
indigenous people of Nigeria regulating their lives and transactions. It is organic in that it
is not static. It is regulatory in that it controls the life and transactions of the community
subject to it. It is said that custom is the mirror of the culture of the people..
3. Islamic law
4. Local legislation including subsidiary legislation.

Features / Characteristics of customary law.

1. Unwritten - as established in lewis V bankole , that anybody asserting the

existence of a certain customary law , the onus of proving the existence of that
law lies on the person because there is no documented document in which the
laws are documented.
2. Flexibility - the customary law is flexible in the sense that it changes from time to
time and it's not stagnant.See Ahmad tijjani V secretary of southern Nigeria.
See also of Rotibi V savage.
3. Acceptability - Considering that customary laws are derived from the traditional
practices of the community given , customary laws must enjoy acceptability
within its natives for it to be regarded as a customary law. See the case of
owoyin V omotosho.

Establishment of customary law.

As far as Nigerian law is concerned , facts must be proved. Customs are considered as
facts and as far as evidence law is concerned , facts must be proved. See section 16 of
the evidence Act.
" A custom may be adopted as part of the law governing a particular set of groups. If it
can be noted judicially ,or it can be proved to exist by evidence , the burden of proving
the custom shall be upon the person alleging its existence."

Custom can be proved in either of the two ways

● By judicial Notice or
● By evidence

Establishment by Notice
See section 17 of evidence Act says " a custom may be judicially noticed by the court if
it has been acted upon by a court of superior jurisdiction in the same area.

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Taiwo V dosumu

Establishment by evidence
Custom can be established evidentially via an eye witness. Either a direct or expert
witness. See section 18 of the evidence Act.

Customary law can also be established by customary based text books by virtue of
section 70 of evidence Act. See adedibu V adowuyin.

Validity test of Customary Laws.

The court has held in the celebrated case of Agbai V. Okagbue(1991) 7 NWLR Pt 512,
p. 283 CA that the importance of these validity tests is to fine-tune customs so they
might maintain relevance in our legal system.
For the custom to be acceptable by the court even after its existence is proven , it must
pass all the following requirements.

1. Repugnancy test
2. Incompatibility test
3. Public policy test.

Repugnancy test - for any custom to be acceptable , it must not be repugnant to

natural justice , equity and good conscience.
This is upheld by the grundnorm where Section 36 of the 1999 Constitution guarantees
the fundamental right to fair hearing.
In the popular case of Guri V. Hadejia Native Authority, it was exclusively held by the
court that such Maliki custom preventing fear hearing of a suspect accused of highway
robbery was not fit to be classified as a customary law as it was against natural justice.
See also Edet V. Essien
In Edet v. Essien, a customary law which gave the custody of a child fathered by a
husband to another if the dowry paid by the other had not been returned was held to be
repugnant to natural justice, equity and good conscience.
See Re effiong okkon attah - slavery.
In regards to the principle of Nemo judes incasasua see Garb & Ors. V. University of
Maiduguri.

Incompatibility test - when a custom is brought before a court , even if it's existence is
proven , but in conflict with a written law , such custom is considered not fit and
therefore incompatible under the incompatibility test.
See the case of Timothy Tanloju Adesubokan Vs Rasaki Yunusa (1971) LLJR-SC

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See also Dijah isah V bello isah hashimu and the estate of professor isah
hashimu.
See also the case of olowu V olowu
See also Muhammed V Muhammed
See section 36 of marriage Act on the case of salubi V Nwariaku
See also Aoko V fagbemi.

Public policy test - Public policy is a combination of the first and second test.This test
requires that any rule of customary law must not be incompatible with any existing
provisions of the constitution nor any existing statute for the time being in force in such
a community in Nigeria.
Re adadevoh

Local legislation
● Primary legislation
● Secondary legislation
Primary legislation :
These are laws passed either by the national house of assembly or state house of
assembly.

Secondary legislation.
These are called delegated legislation. It is a person or bodies vested with the power of
legislation as a substitute of the primary legislatures having a binding force.
E.g the Chief Justice of Nigeria vested with the power to make legislations governing
the proceedings of the supreme court.

The Judiciary in Nigeria

The administration of justice is usually the primary function of the judiciary or the
judicature comprising the court system, the judicial personnel that administer justice in
these courts. The courts are often viewed as the last resort of the citizen. In the words
of Muntaka-Coomassie, J.C.A. in Zekeri v. Alhassan In a democratic society as ours,
where rule of law prevails, the court is the hope of the common man. It plays an
important role in the interpretation of the constitution, protects the rights of citizens from
encroachment by any organ of the government, and generally has the inherent
jurisdiction to determine cases between government and persons and between persons.

Section 6(1) and (2) vested the judicial powers of the Federation and states in the
respective courts listed in subsection (5). By virtue of subsection (6), the judicial powers
so vested: (a) extends to all inherent powers and sanctions of a court of law;

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(b) extends to all matters between persons, or between government or authority and to
any person in Nigeria, and to all actions and proceedings relating thereto, for the
determination of any question as to the civil rights and obligations of that person;

(c) shall not, except as otherwise provided by the Constitution, extend to any issue or
question as to whether any act or omission by any authority or or person or as to
whether any law or any judicial decision is in conformity with the Fundamental
Objectives and Directive Principles of State Policy set out in Chapter II of the
Constitution;

(d) shall not extend to any action or proceedings relating to any existing law made on or
after 15th January, 1966 for determining any issue or question as to the competence of
any authority or person to make any such law.

Judicial precedents

Case law or judicial precedents refers to those principles and rules of law developed
over the years by the courts in the course of interpreting the law which always often
becomes a law by their virtue.

The reason why judicial precedent is so important in the legal system is for the fact that
, quite often situations arise where judges are confronted with legal problems where
established laws will be inadequate to expressly apply in order to resolve the problem.
And it is however a cardinal maxim of our law that where there is a wrong there must be
remedy. Judges are therefore required or encouraged often to formulate fresh rules to
avoid absurdity , or to extend the existing ones to deal with novel cases.

TYPES OF PRECEDENT

Rules of precedent may be grouped according to the extent of the court's involvement in
their formulation and application or according to the weight and influence they command
in the determination of subsequent cases. Precedent may, therefore, be classified as
original, derivative and declaratory or as binding and persuasive.

Original Precedent
An original precedent is one that establishes a new rule of law and usually occurs in
cases of first impression where no existing precedent is to be found. As should be
expected, it is not very common. One area where original precedent had been
prevalent, until recently, is in the evolution of the rules of customary law which are

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considered to be matters of fact until they have been judicially accepted. See amodu
Tijani V secretary southern Nigeria

Derivative Precedent
A derivative precedent, on the other hand, is one that merely extends the frontiers of an
existing rule to accommodate similar or novel cases where there is no direct authority
on the point under consideration. See LEDB V olopinkwu

Declaratory Precedent
The third group of precedents, declaratory precedents, is of the least jurisprudential
value as they contribute little or nothing to the development of the law except that they
help to consolidate and strengthen the authority of past decisions. it simply declares or
clarifies the position of an existing rule or principle of judicial precedent.
However, they do not confer any validity on a decision that is incurably bad. A precedent
that had been followed in the past may be overruled later if it had been given in error.

Precedent may also be described as either persuasive or binding. It is persuasive when

it is within the powers of the lower court in which it is being urged to choose to follow or
depart from it. Decisions of lower courts, courts of coordinate jurisdiction and foreign
courts are treated as merely persuasive. On the other hand, a precedent is binding
when the court in which it is being advanced is bound to follow it. Decisions of courts
higher in the judicial hierarchy are normally binding on the lower courts. It follows,
therefore, that a precedent is either binding or persuasive.

Elements of Judicial precedents

RATIO DECIDENDI – The ratio decidendi of a case is the principle of law on which a
decision is based. When a judge delivers judgment in a case he outlines the facts which
he finds have been proved on the evidence. Then he applies the law to those facts and
arrives at a decision, for which he gives the reason (ratio decidendi).

OBITER DICTUM – The judge may go on to speculate about what his decision would or
might have been if the facts of the case had been different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not
binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive (as opposed to binding)
authority in later cases.

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 Doctrine of Stare decisis
The doctrine of stare decisis which expressly stands " stand by previous decisions" is
treated with sanctity in the legal profession especially in lower to higher court
relationship.
One of the reasons this doctrine is so important is in order for uniformity and
consistency to subsist in the legal profession.

In the hierarchy of courts , adherence to decided judgements is an obligation on the

courts in respect of the decisions of higher courts.

See MOHAMMED v. OLAWUNMI & ORS

PRINCIPLE
"In this appeal, the Judge from the passage quoted above from his ruling was aware of
the application but deliberately chose to ignore the process. This unfortunate attitude in
disregarding the process of the Court of Appeal borders on judicial impertinence. It is an
affront to the authority of the Court of Appeal. All the courts established under our
Constitution derive their powers and authority from the Constitution. The hierarchy of
courts shows the limit and powers of each of each court. To defy the authority and
powers of a higher court appears to me undesirable and distasteful. Even without the
ratio of Vaswani's case, the best and reasonable course of action was to adjourn the
matter before him pending the determination of the application before the Court of
Appeal". PER OLATAWURA, J.S.C. (P. 32, Paras. A-E)
See also john V okafor

OPERATION OF THE DOCTRINE BY HIERARCHY

As earlier stated, one important requirement for the workability of the doctrine of
precedent is an established judicial hierarchy. We shall benefly consider the present
judicial hierarchy before elaborating on the operation of the doctrine. The present court
structure consists of the following

(1)The Supreme Court which was established under section 230 of the 1999
constitution and declared as court of last resort in section 235 has, since 1963,
remained the highest court in Nigeria after the abolition of appeals to the Privy Council.
The decision of this court is persuasive on itself and binding on all the courts below it.
It is essentially an appeal court with original jurisdiction in certain actions involving
Federal and State governments or the National Assembly.
between the National Assembly and the President, the National Assembly and any
State House of Assembly, and between the National Assembly and a State of the
Federation.

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(2) The Court of Appeal which was established by section 237 of the constitution of
which the Decision of the above mentioned court is binding on it , while its decision is
persuasive to it and binding on all courts below it. It is exclusively an appellate court,
entertaining appeals from the Customary and Sharia Courts of Appeal, the Federal High
Court and various State High Courts.

(3) The Customary court of appeal established by section 280 and Sharia Courts of
Appeal established under section 275(in the Federal Capital Territory or as may be
created by a State);
Both courts are designed to hear appeals from area and customary courts in areas
bordering on Islamic law or customary laws respectively.
The decisions of the supreme court and court of appeal are binding on this court in
relevant subject matter. The decisions of this court are persuasive on itself and binding
on the lower courts.
The Customary and Sharia Courts of Appeal are optional for any State that requires
them and serve to hear appeals from customary and area courts respectively

(4)The Federal High Court and State High Courts. These sets of courts are more or less
of coordinate jurisdiction.
The Federal and State High Courts ,
Aside from the differences in their respective jurisdictions to the Federal High Court, the
High Court of the Federal Capital Territory and the respective State High Courts are
very similar and generally exhibit the same attitude to the doctrine of precedent. They
are strictly bound by the decisions of the Court of Appeal and the Supreme Court . The
refusal of a High court to follow binding decision of the court of Appeal which is on all
fours with the case being adjudicated upon has been frowned upon by the Supreme
Court. In Dalhatu V saminu Turaki, the plaintiff claimed to have won the gubernatorial
primaries of the All Nigeria People's Party (ANPP) in Jigawa State but alleged that the
party has chosen another candidate as the party's official candidate for the governorship
election in the State. The action was commenced in the High Court of the Federal
Capital Territory, Abuja. Although the vital issue for determination was the same as in
Onuoba V Okafor, 107 the High Court refused to follow the Supreme Court decision in
that case, concluding (in the words of the Supreme Court arrogantly) that the Supreme
Court should 're-amend its position on the internal affairs of political parties".

Expressing its displeasure in the strongest terms, the Justices of the Supreme Court,
one after the other, condemned the behavior of the trial judge describing his refusal to
be bound by the decision of the Supreme Court as 'gross insubordination', (describing
the judge as a misfit in the judiciary), 'gross insubordination', 'judicial rascality', 'reckless'

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and judicial impertinence' which calls for deprecation. Such a refusal is what the court
had described as "an abominable act, contrary to the ethics of his appointment" that
should not be condoned.

The Federal High Court is conferred with exclusive original jurisdiction in matters
pertaining to the revenue of the Federation while State High Courts have unlimited
jurisdiction in all matters except where expressly ousted by law.

(5) Magistrates' Courts which are inferior state courts handling a vast number of civil
and criminal cases subject to statutorily imposed jurisdictional limitations

(6) Customary, Native, District or Area Courts of various grades, occupying the lowest
rung, pay little regard to the technical rules of law in their determination of disputes

Case laws

Supreme court
|
Federal court of appeal
|
State high court / Federal high court / National industrial court / Sharia court of appeal
|
Magistrate court / Sharia court / Area court

Exceptions to Doctrine of Judicial precedents

1. By convincing the court that the case at hand are not of the same facts,
principles or categories with the case being cited. By calling the attention of the
court that the decision of the above court being cited doesn't resonate with the
matter at hand , then the principle of stare decisis won't hold.

2. When the decision of the above court being cited was decided per incuriam
: if it is established that such precedent or decision was made per incuriam (
meaning decided in ignorant of certain factors - such as certain principles or
statutes in which if the judge's attention was called upon , the judgment would
have being different.
Such a decision would therefore be not binding for the court to follow.

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 See Ngwo V Monye
Principle of the above case
"When a decision is impugned on the ground that it has been arrived at by the
court only because the court had acted in ignorance or concealment of an
authority, statutory or otherwise, which is binding on the court, the decision is
said to have been given per incuriam and constitutes a special case where the
court is not bound to apply the principle of stare decisis. Dealing with this aspect
of the law, Lord Evershed, M.R. in Moreau Ltd. v. Wakeling [1955] 2 Q.B. 379
observed as follows:-- "As a general rule , the only cases in which decisions
should be held to have been given per incuriam are those decisions given in
ignorance or forgetfulness of some inconsistent statutory provision or of some
authority binding on the court concerned. . ."Per See also in this connection R. v.
Northumberland Compensation Appeal Tribunal ex-parte Shaw [1951] 1 K.B.
711. Where a decision is given per incuriam it does not possess for this Court
any binding effect and this Court is entitled to disregard it. See Young v. Bristol
Aeroplane Co. Ltd. (supra); also the Divisional Court in Nicholas v. Penny [1950]
2 K.B. 466". Per COKER, J.S.C. (Pp.17-18, paras.D-D)

3. When their is a conflicting decisions -

This is classified into two…

Conflicting decisions of a court of coordinate jurisdiction.
this can be seen specifically in the court of appeals… considering that the court
is one with numerous branches all over the country presided over by different
learned justices. In a situation where the court of appeal itself is faced with its
own conflicting decisions , it is a trite knowledge that decisions of court of
coordinate jurisdiction is not binding but rather persuasive , furthermore this was
established in the case of ACN & ANOR v. AMAEWHULE & ORS

ISSUE
CONFLICTING DECISIONS : How the Court of Appeal is to treat its conflicting
decisions

PRINCIPLE
"There certainly exist conflicting decisions of this court on the question the issue
raises. The law however allows us to depart from our previous conflicting
decisions and/or choose the one to follow in certain circumstances…. Per
MUHAMMAD, J.C.A (Pp. 35-36, paras. G-C)

Conflicting decisions of a court of superior jurisdiction

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 Where a court is faced with conflicting decisions or judicial authorities from a
court of superior jurisdiction , like the supreme court , the principle was stated in
the case of CBN v. ZAKARI

ISSUE
CONFLICTING DECISIONS : Position of the law where the Court of Appeal is
faced with two conflicting decisions of the supreme court.

Principle
"The law is trite, where there are conflicting judgments of Courts of equal
jurisdiction, the rule is that the decision that is later in time prevails.
The trite position of law has been restated by the Apex Court in the case of
Osakwe v. Federal College of Education ,where Ogbuagu, JSC had this to
say:- "Those who think they are very knowledgeable than this Court, if they have
listening ears, let them hear and take care. I have gone this far, because the
learned Justices of the Court of Appeal in the University of Ilorin v. Adeniran
(supra), who claim or assert to be "torn between the two judgments of this Court"
should please take note and come to terms with the principles or doctrines of
stare decisis, precedents and hierarchy of the Courts, which are clear and
unambiguous. They are an indispensable foundation. For the umpteenth time,
where there appear to be conflicting judgments of this Court, the later or latest
will or should apply and must be followed if the circumstances are the same." Per
BDLIYA, J.C.A. (Pp. 33-34, Paras. E-E)

In Summary , where conflicting decisions arises within the decisions of a court of

coordinate jurisdiction , the court will decide on which to follow see ACN &
ANOR v. AMAEWHULE & ORS - while in a situation where the conflicting
decision is arising from a superior court , the latest among the two is to prevail as
stated in osakwe V federal college of education above.

4. When the decision is overruled by statutes :

under the Wills Act of 1837, which is still applicable in some states in Nigeria,
There is virtually no limit to the testamentary freedom of a testator. He can
dispose of all of his property by Will and to whoever or whatever he wishes. This
was emphasized in the case of Timothy Tanloju Adesubokan v. Razaki
Yunusa (1971) LLJR-SC
In this case , the court of appeal dismissed the judgment of a high court made in
the favor of Islamic law over the will's Act in distribution of estate. The founding of
the court of appeal that where both laws conflict , the Wills act shall prevail for its

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 position as a statute of General application , thus setting a judicial precedent of
such for subsequent decision.

However , this judicial authority has been overruled in Kaduna state by virtue of
the Kaduna Will's law , which restricts the testamentary freedom of a testator in
four major ways. First, the testator cannot dispose of any property, which he had
no power to dispose of by Will under customary and Islamic Law (Section 4(1).
Second, he must have made reasonable financial provisions for his family and
dependants, failure of which they can apply to the court for an order (Section
5(1). Third, a marriage under the Marriage Act automatically revokes Wills made
before then unless the will was
made in contemplation of the celebration of that marriage (Section 14). Finally, a
testator cannot make valid bequests to attesting witnesses or their spouses
(Section 11).

Therefore, by virtue of this act in kaduna state , the principle established in the
case of adesubokan V yunusa above have been overruled by the statutes in
kaduna state and will by consequence not be binding in that jurisdiction.

5. Coordinate jurisdiction - as already explained above , decisions from courts of

co-ordinate jurisdiction are persuasive.

NIGERIAN STATUTES
- (CIVILIAN RULE)
–ACT – By the National house of assembly
–LAW – By the State house of assembly

(MILITARY RULE)
–DECREE – By the federal military government
–EDICT – By the state Military government

INTERPRETATION OF STATUTES

As provided in Section 6 of the 1999 constitution.

All judicial powers , that is the interpretation of law are constitutionally and exclusively
vested in the judiciary or the courts.

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 PRESUMPTIONS
1. Presumption of Innocence : The court is to always presume that while making
the law , the lawmakers didn't intend to take away the presumption of innocence
in any situation. Meaning , even if the law being interpreted doesn't expressly
state that , it will be presumed by the court during interpretation that everyone is
presumed innocent till proven guilty.
Exception to the presumption of Innocence : Strict criminal liability. In criminal
law, strict liability is liability for which mens rea (Law Latin for "guilty mind") does
not have to be proven in relation to one or more elements comprising the actus
reus ("guilty act).
Example are statutory rape , traffic violation or selling alcohol to underage
persons etc.

2. Presumption against repeal : courts generally lean against implying the repeal
of an existing legislation unless there exists clear proof of the contrary. An
existing statute is not repealed simply because a similar start with dealing with
the same subject matter is promulgated so an express repeal is always
preferred.
But the court may in extreme cases declare a statute as having been impliedly
overruled if the provisions of a subsequent enactment are so inconsistent with it
that both cannot stand together on the same subject matter. See Ezeji V ike.

3. Presumption against ouster clause:

Ouster clauses exist to preclude the jurisdiction of the court. It primarily
circumscribes the powers of a body to act in specified matters. Ouster clauses
are usually regarded as antithetic to democracy and the judicial system.
By the above principle ,
The courts will not accede to an ouster clause ( alleging No jurisdiction of the
court ) unless there is clear and unambiguous provision to that effect in a validly
enacted statutes. Adamolekun V the council of the university of ibadan.

4. Presumption against retrospective law : Legislation should not affect existing

rights and should not criminalize or punish conduct that was not punishable at
the time it was committed. This presumption is part of the rule of law. Section 36
sub 8

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 5. Presumption against defense of crime : That the lawmaker would never
intend to take away the right to full defense against criminal accusations in any
circumstances.
defenses such as defense of alibi , defense of provocation and defense of mental
deffect etc.

6. Presumption of ex turpi causa non oritur actio : That it can never be the
intention of any lawmaker to allow anyone to benefit from his crime.
See the case of ajilo V Savanah in light of section 22 of the land use Act.

7. Presumption against appeal : the court will always presume that no law can
deny the right to appeal where it is available. Bello V bendel state.

8. Presumption that a law that confers quasi - judicial powers must respect the
principle of Natural justice. See
– okafor V Nnamdi university
— danloye V MDPDC1

INTERNAL GUIDE
In the interpretation of statutes , there are several guides which are established to shed
light on the implied meaning or effect of specific wordings as intended by the
lawmakers. Words such as Act , he , any other , general election etc are interpreted not
literally most times but by how it is provided under the several interpretation guides.
As for the internal Guides , we have the following :
1. Interpretation section : see chapter 8 part 4 section 318 of the 1999
constitution.
2. Preamble : the preamble serves as an internal guide when construing the
meaning of section 10 which prohibits any government of a state from adopting
any religion as a religion of the state. Okeke V AG anambra state.
3. Long title/ Headings : Headings, like preamble , are useful in the interpretation
of ambiguous sections. For instance, the heading of section 10 of the English
Naturalisation Act, 1870 was considered relevant in interpreting the meaning of
"child" as used in that section. Since it read: "National Status of Married Women
and Infant Children," the expression "child" was held to mean a child under the
age of majority.

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 The relevant section in the body of the statute must indeed be ambiguous for the
heading to be used in aid of interpretation. In U.T.C. (Nig.) Ltd. v. Pamotel, the
question was whether Order 24 rule 15 of the High Court of Lagos State (Civil
Procedure) Rules,50 headed: "Default Pleadings," applied to summary
judgments. The Court of Appeal answered in the affirmative, relying on the
heading. The Supreme Court disagreed and held that as a trite principle statutory
interpretation, the heading cannot be used to interpret any of the provisions of Or
unless the provisions are found to be ambiguous.
4. Marginal note : Strictly speaking, marginal notes, like headings, are not part of
the statute. The draftsman, without necessarily going through the usual
legislative process, introduces them as a means of easy referencing. The old
attitude was to disregard them altogether. But they have been described in recent
times as useful guides when considering the general purpose of a section and
the mischief at which it is aimed. It is permissible to consider the purpose of a
section and the mischief at which it is aimed with the marginal notes in
mind.Since they are not binding as laws, they may be ignored in those cases
where the express provisions in the body of the enactment are clear. For
instance, section 1 of the Official Secrets Act, 1911 was interpreted to cover
sabotage and espionage, notwithstanding the narrow reference to "penalties for
spying" in the marginal note. Uwaifor V AG bendel state.
5. Explanatory Notes : are a common feature of most modern statutes in Nigeria.
Like side notes, they are inserted after the law has been passed. It is usual for
the inserting authority to state expressly that they do not form a part of the
statute. They are not entirely useless and may, in the absence of any other aid,
serve as weak pointers to the intention of the legislature.
6. Schedules : containing some details not expressly stated in the law. See Third
schedule of the 1999 constitution in light of interpreting section 292 of the 1999
constitution.
7. Provisor : conditions attached to the law provided.
8. Commencement date.

EXTERNAL GUIDE
1. Interpretation Act
2. Dictionary
3. Text books
4. Case law

RULES OF INTERPRETATION
1. Literal Rule :

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The primary and basic concern of the courts in their interpretative function, as it relates
to the construction of statutes, is that they ascertain the intention of the legislature or
lawmakers from the words that are used in the statute. This starting point in every
interpretation is the literal rule.It demands that the words used in a statute must be
interpreted according to their literal or plain meaning, especially where they appear to
be unambiguous and logically complete. According to Tridal, C. J. in the Sussex
Peerage Case

The only rule for the construction of Acts of Parl can be necessary than to expand those
words in their natural and ordinary sense. The words themselves alone do, in such a
case, best declare the intention of the lawgiver.
In Black Clawson International Ltd v. Papierwerke , it was established that an ordinary
meaning of a word must be given emphasis to in interpretation.

Also in R V bangaza , in this case , while interpreting the meaning of section 319 which
prohibits someone below 17 from being sentenced 2to death , the court construed the
meaning of the law in its literal sense and held that the boy in question who despite
having committed the crime before 17 , but having attaining the age of 17 at trial is
exempted from the provision of the law.
This decision was overruled in AG ondo state V AG federation.

In Victoria city V bishop of Vancouver island , lord atkin said " in the construction of
statutes , there words must be interpreted in their ordinary grammatical sense , unless
there is something in the context or in the object of the statutes in which they occur , or
in the circumstances with reference to which they are used to show that they were used
in a special sense different from ordinary grammatical construction.

Also in AG ontorio V mercer it is established, "every word ought to prima facie be

constructed in its primary and natural sense unless a secondary or more limited sense
is required by subject or the context.

2. GOLDEN RULE
Where the application of the plain grammatical interpretation of a particular provision
produce absurd, inconsistent or ambiguous results the court may, will instead, apply the
words with a secondary meaning that they are capable of bearing. The assumption is
that the legislature could not have intended an absurd result. This modification of the
literal rule is known as the golden rule of interpretation. Formulating the rule in Becke v.
Smith Parke, B., remarked:

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It is a very useful rule in the construction of a statute to adhere to the ordinary meaning
of the word used, and to the grammatical construction, unless that is at variance with
the intention of the legislature to be collected from the statute itself, or leads to any
manifest absurdity or repugnance, in which case the language may be varied or
modified so as to avoid such inconvenience, but no further.

3. MISCHIEF RULE
The mischief rule, otherwise known as the Rule in Heydon's Case is used to explain the
intention of the legislature rather than to alter the expression used by it. It is for this
reason a useful tool whenever the meaning of a particular provision is in doubt.
According to Tindal. C. J., in the Sussex Peerage Case,

if any doubt arises from the terms employed by the legislature, it has always been held
a safe means of collecting the intention, to call in aid the ground and cause of making
the statute and to have recourse to the preamble which, according to Chief Justice Dyer
is a key to open the minds of the maker of the Act and the mischiefs which they intend
to redress.

The court, in applying the mischief rule, should be guided by the following
considerations:

(a) What was the law before the statute was passed?

(b) What was the mischief for which the law did not provide?

(c) What remedy did the legislature resolve and appoint to cure the disease?

(d) What was the true reason for the remedy ?

See also the case of smith V hughes and also emelogu V state.

4. EJUSDEM GENERIS RULE

This rule simply means that where a particular word is followed with general word , the
general word must be considered in light of the particular.
Take into congnizance section 277 of the 1999 constitution which outlines the
jurisdiction of the Shari'a court of appeal where "any other matter" is construed to mean
any other matter not outside islamic personal law.
In the English case of Palmer v. Snow, the court had to interpret the provisions of the
Sunday Observance Act, 1677, which prohibited the doing of certain acts on Sundays.
The class of people so prohibited were "tradesmen artificers, workmen, labourers, or

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other person whatsoever." The court held that the phrase other person whatsoever
should be limited to persons of the same genus a those expressly mentioned and could
not include farmers and barbers.

Sources : class notes , law pavilion , NWLR

Introduction to Nigerian legal system by essien , by professor Obilade , by AJ beradugo
and by ese malemi.

Courtesy : GODFATHER

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