There are inceptions and various founts from which the Nigerian law and system of procedural operations and statutory functionalities derive their legal structure and contents as a matter of jurisprudence and legal history.
In jurisprudence, the feasibility of law is not emphasized as rather legal theories and the very essence of law with, its various dimensions are brought to bear to aid the plausible and validly interpretation and application of law.
The phrase sources of law are used in various senses.
Sir John Williams Salmond posited two main sources of law; the formal and material sources of law. The former are sources which give the law its binding and validity force. They include the legal structures from which laws derive their force and authority.
In other words, laws emanating from formal sources are considered as legal authorities as they hold the very force of legality.
Consequently, any law made needs to be in consonance with the formal source for it to retain its validity, examples include statutory enactments, judicial precedents etc.
The latter however have no structural binding effects as they do not give validity to the law but are the sources from which the law derives its matter of which it is composed as legal history and antecedents.
By implication, material laws have to align to the statutory formalities of a legal system to obtain the force of law.
The Nigerian legal system is therefore compartmentalized into distinctive operative procedural laws and practices.
The English Law: Upon the colonization of Nigeria as one-time British colonial territory, the Nigerian experiences was immensely influenced by the British rules and custom. The English law consequently formed a large portion from which the Nigerian law is founded upon.
These laws however are categorized into ‘the Extended English Laws and the Received English Laws’. The Extended English Laws includes laws that were directly enacted by the queen and by virtue of Nigeria being a colonial territory, the laws were continuously applicable and still continued to exist in Nigeria even after Nigeria got her independence as of October 1, 1960.
The Received English Laws on the other hand include the aspect of the English laws which gained legal ground and feasibility through the instrumentality of local statutes and enactments, as opposed by the extended English laws which applied to Nigeria with their own force and potency without local enactments.
In other words, the received English Laws were only applicable in Nigeria through the permission provided by the local statutes. Supreme Court Ordinance No. 6 of 1914, Ordinance No. 3 of 1863 and many more are some examples of local statute that received English law for application in Nigeria.
Common Law: The common law is a peculiar term for ‘the common law of England’. It is the customary law of the English people, the basic law which originated from the custom and practices of England.
It gained its legal stature as it was developed by the old common law courts among the various English communities in the early centuries, Whales inclusive.
The king was said to be the first common law judge, however, as a result of the unmanageable and cumbersome duties of the king he appointed members of his council to sit in judgement and administer justice on his behalf.
The king’s council was made up of noble personalities such as earls, viscounts, bishops, barons etc. These noble were untrained in law and when they arrive a country, they first had to ascertain the custom of such community and dispense justice in accordance with the precedent cases brought before them in the country court.
Evidently, the common law adhered the ‘doctrine of stare decisis’. Henry De Bracton (Ad.1268) in his famous book ‘Treatise on the Laws and Customs of England’ where it was believed that that the formation of the common law was completed around 1250 A.D.
Equity: Equity in ordinary parlance means fairness and good judgement. It is the law that developed by the Chancery courts in England in order to ameliorate and mitigate the inadequacies of the common law.
The law of Equity was developed by the court of chancery in England to lessen and reduce the hardship, high technicalities, delay in justice, corrupt court personnel and rigidity arising from the practice of common law.
The law came about as a result of petitions stating resentful complaints and grievances that weren’t attended to by the king’s councils and praying the king to afford them relief. With more increase in the number of petitioners, the King appointed the Lord of Chancellor and Chancellors in the court of Chancery.
The Chancery court exercised the King’s good conscience in dispensing justice based on fairness and moral rightness.
Legal question and argument on whether the common law practice should supersede the law of equity was resolved in Earl of Oxford Case (1615) where Sir Edward Coke, the Chief Justice of the common law court and Lord Ellesmere the Chancellor presented the case before the King and the king ruled in favour of the Chancellor.
The king therefore laid a legal principle ‘where there is conflict between the common law and equity, equity is said to prevail.
Statutes of General Application: The statute of General Application has long been a complication in term of asserting a specific definition.
It has however been defined in various cases; in B. A. Lawal & Ors. vs Messrs A. Younan & Ors. (1961) LCN/0188(SC) the court held that the statute which were applicable in England on January 1, 1900 and which were applicable in Nigeria are statute of general application.
Therefore, statutes of general application simply mean the English Laws that are applicable in all the English colonies from January 1, 1900. Examples of statute of general application include Exchange Act 1882, Sale of Goods Act 1893 etc.
Customary Law: Long before the advent of the British colonial masters and other religion and its system of laws, the Nigerian society had norms and custom which regulated their affairs and conducts.
These custom were plausible and validly binding in the society. According to Prof. Taslim Olawale Elias, CJN, he defined customary law as ‘a body of custom accepted by members of a community as binding upon them’.
Invariably, it can be deduced that each society or community in Nigeria has its distinctive or peculiar norms and customs which as long existed in that society that and regulate their affairs and serve as Laws.
The long usage of these customs evolves into the Law of the land. “It is the organic or living laws of the indigenous people of Nigeria, regulating their lives and transactions”, this definition was given by Obaseki JSC in the case of Oyewunmi V. Ogunesan.
In the above definition, customary law is seen as the native law and custom which had a force of law as accepted by the indigenous people of the Nigerian society.
Several attributes and characteristics have to be evident in customary in customary laws; it must be an accepted and binding custom, it must have been existed at a material time, it must be flexible because of its unwritten nature.
The constitution however, makes legal provision for the continuance of customary law in Nigeria in pursuance to Section 315(3) CFRN.
The constitution also provided special court where issues and cases on customary law can be adjudicated such as the Customary Court, Customary Court of Appeal and Customary Court of Appeal of FCT.
It is therefore the intent of the constitution to ensure the continuity of customary law, however, any customary law that is contrary to the provision of the constitution or other public policy, repugnant to natural justice, equity and good conscience, incompatible with existing law will be nullified and have no legal effect as the Validity test provides.
Nigerian Legislation: The Nigerian legislation seemly appears as the most vital source of law as all other source of law are subject to the Nigerian legislation; it has the legal stand to modify and repeal existing law as those other laws must be in conformity to the principles of the legislation.
The Nigerian legislation is made up of the Nigerian Constitution, Ordinances, Acts, Laws, Degrees, Edicts and other subsidiary legislations. The Nigerian Constitution is supreme and its provision have binding force on all authorities and persons throughout the federation.
If any other law is inconsistent with the provision of the constitution, the constitution shall prevail and the other law to the extent of the inconsistency be void.
This is in pursuance to Section 1 of CFRN 1999. The Decree and Edicts are legislations that were enforced by the promulgation of the Federal Military Government. These legislations set aside the validity of the Constitution, nullify decisions by even by the Supreme Court.
Degrees were made by the federal military government while the Edicts were enforced by the state military government.
On several occasions the federal military government ousted and nullified the decision of the Supreme Court.
In Lakanmi V. A.G Western State where through the promulgation of the federal military government Degree No. 28 of 1970 which ousted the jurisdiction of the court from inquiring into the validity of any Decree and Edicts.
It was held that the validity of edicts cannot be challenged in court except to the extent it clashes with a decree. This is also in Uwaifo V. A.G Bendel State. As empowered by the Constitution, Section 4 grants the legislature the authoritative power to make laws.
The laws made by the parliaments; the National Assembly is known as ‘Act’. The state legislation is then called ‘Laws’. The legislation as saddled with the cumbersome responsibilities in making laws delegates its law making authority to other subsidiary bodies. Consequently, the Ordinances, Acts Laws, Degrees and Edicts are known as Statues.
Case Laws: The Nigerian case law is alternatively known as the judge made law. As part of the sources of the Nigerian Law, the Nigerian judge made laws is authoritatively binding and have legal effects in Nigerian legal system.
The Nigerian case laws are legal principles developed through judicial decisions as opposed to laws contained in statutes and enacted by the legislative process.
Case law comes about through the aggregation of court opinions interpreting and applying the law to individual cases. In the Nigerian legal system, the rulings of higher courts are binding on lower courts.
Courts also adhere to the principle of stare decisis, which generally requires that courts follow the precedent set by previous court decisions.
Although the judiciary is not empowered to make laws however, in interpreting the law made by the legislature, the court can make laws but not in the sense of legislation as case laws are always unwritten laws.
Any law that is not made by the parliaments are usually referred to as unwritten laws. Where there is lacuna in any law, the judge is obliged to fill the gap in that law in order to meet the intention of the legislature.
Also, where is no law previously governing a situation, the judge can create some principles of laws in that situation. The Nigerian court system therefore operate on the principle of judicial precedence to sustain its certainty and uniformity of laws.
International Law: The Nigerian Law constitute of various legal founts which emanates from International treaties, agreements and conventions that regulate legal relations among sovereign nations.
These laws examine and conduct the affairs of nations and international organization, stipulate the protocol and obligation in regulating and resolving disputes among parties domicile in different countries. A treaty becomes part of domestic law only if relevant legislation is adopted.
The same principle applies in other countries where the English common law has been accepted. When countries however sign international laws or treaties, it can apply directly in that country’s legal system and become binding and effective instantaneously while this isn’t so in some countries legal system.
For others it applies only after that country has enacted the agreement as a domestic law, this is the case in the Nigerian legal system. Constitution of the United States stipulates (Article VI, Section 2) that treaties “shall be the supreme Law of the Land.”
Treaties are negotiated by the president but can be ratified only with the approval of two-thirds of the Senate (Article II)—except in the case of executive agreements, which are made by the president on his own authority.
Further, a treaty may be either self-executing or non-self-executing, depending upon whether domestic legislation must be enacted in order for the treaty to enter into force.
In the United States, self-executing treaties apply directly as part of the supreme law of the land without the need for further action. Whether a treaty is deemed to be self-executing depends upon the intention of the signatories and the interpretation of the courts.
In some countries, the adoption of a treaty is a legislative act. The relationship between municipal and international law varies, and the status of an international treaty within domestic law is determined by the country’s constitutional provisions.
In pursuance to provision of the Constitution, Section 12(1) CFRN 1999, “No treaty between the federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the national Assembly.”
The Nigerian legal system has its laws and practices founded upon the English common laws which became intrinsic and structurally ingrained in the Nigerian legal system by virtue of colonization and attendant incidence of reception of the English law through the process of legal transplant.
According to Obilade (1979) English laws has a tremendous influence on the Nigerian legal system, and “English law forms a substantial part of the Nigerian law.”
The implicative course of the colonization resulted in the making of a British Empire, now the Commonwealth, the transcendence brought and left behind a different lingua franca, system of living; the English way of life, including the English laws and practices.
About the Author
Monday Chinaecherem is a law student, prolific writer and avid legal researcher
Ese Malemi. “The Nigerian Legal System Text and cases” (Princeton Publishing Co, 2012)
Osita Nnamani Ogbu. “Modern Nigerian Legal System”( SNAAP Press Ltd., 2013)