Nigerian Legal System I Dr Afolasade Adewumi November
Nigerian Legal System I Dr Afolasade Adewumi November 2020
SCHEME OF WORK • The Idea of a legal System; üNature and function of law; üclassification of law • Sources of Nigerian Law; legislation; judicial precedents/ case law; customary law, Islamic law; • English common law and doctrine of equity; reception and application of English Law in Nigeria
Recommended Texts • Farrar: Introduction to Legal Methods • Park: Sources of Nigerian Law • Obilade: Nigerian Legal System • Keay and Richardson: The Native and Customary Courts of Nigeria • Nwabueze: Machinery of Justice in Nigeria • Umoh: Precedent in Nigeria Courts • Ese Malemi: The Nigeria Legal System Text and Cases • Asein: Nigerian Legal System
Further readings • Glanville Williams: Learning the Law • Elias: Nigerian Legal System • Hansbury: English Courts • Allott: New Essays in African Law • Elias: British Colonial Law • Elias: Nigerian the Development of its Laws and Constitution • Lord Denning: The Discipline of Law • E. Fagboun: You and the Law • Derkfng: Taking Rights Seriously • P. Denhan: A Modern Introduction to Law • Lord Denning: The Closing Chapter • Kayode Eso: Nigeria Grundnorm • Kayode Eso: An Anatomy of Justice
The Nature of Law • The Idea of a legal System üNature and function of law üclassification of law • Recommended Text • Obilade: Nigerian Legal System • Ese Malemi: The Nigeria Legal System Text and Cases • Asein: Nigerian Legal System
The Nature of Law • ‘Nature’ simply means inherent character; description; breed; kind etc of a person or thing • Law consists of a body of rules governing human conduct • Every society has rules regulating the conduct of the members • It is noteworthy that laws that conform to moral standards are easily obeyed • Sanctions are in place to ensure laws are obeyed
Definition of Law • Law has no specific definition and as such has been defined by different schools of thought • The Positivists see law as the command of a sovereign backed by sanctions
Definition of Law (contd. ) • The Naturalists see law as having a divine origin. Human laws will be legally valid when they are in line with moral principles based on man’s nature and reasoning • Since there are no moral truths that are universally acceptable, there is the conflict between ‘law as it is’ and ‘law as it ought to be’ (de lege lata & de lege feranda)
Definition of Law (contd. ) • Historical School views law as an out growth from the history of the society (Volkgeist- law developing organically from the spirit of the people) • Sociological school law is a means of ordering society by regulating conflicting interests • Realist school say a badman sees law as what the courts will do.
Definition of Law (contd. ) • The definition given to law is dependent on the angle from which you are viewing it. • Activity • Summarize the definitions of law according to the different schools of thought
The Idea of a Legal System • A system refers to an ordered set of principles operating in a framework • Nigeria legal system is the totality of the laws or legal rules and the legal machinery within Nigeria
The Idea of a Legal System (contd. ) • For a viable legal system, there is the grundnorm which is the ultimate principle /foundation of all the rules in the normative system. • This grundnorm gets its validity from extra legal source and once established, must not be queried. • Under colonial rule, Nigeria derived legal authority from the Queen in Parliament • After independence, Constitution became the basic law for Nigeria. (supremacy clause is in Section 1 of the Constitution )
Section 1 of the Constitution • Section 1(1) This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria • (2) The federal republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part there of, except in accordance with the provisions of this constitution. • (3) If any other law is inconsistent with the provisions of this constitution , this constitution shall prevail , and that other law shall to the extent of the inconsistency be void.
The Idea of a Legal System (contd. ) • If each country has a legal system then we would expect to have as many legal system as the number of countries that exist. • We find countries operating several laws within their legal system e g Nigeria has federal & state, law and also customary laws, English law. We equally have communities with law and they are not states e. g muslim law, Jewish law e. t. c • Similarities exist around the plurality of laws that enable us classify them into manageable number of groups & families • These groups can also be referred to as legal systems • This brings about a definition of legal system as an ordered set of laws sharing unique but common characteristics.
The Idea of a Legal System (contd. ) • Classification is thereby carried out by using the common factors identified in the laws and not the specific rules. • These common factors used in classification of laws make it possible to have fewer categories of legal systems. • The above, make it possible to know which category an aspect of law falls into without having to know the minute details of the law.
Illustration on classification • Ade goes to Shoprite and buys detergent, bread, chocolates, Johnson baby powder, 2 kg semovita, sugar, cornflakes, Jollof rice, bread, apples. At the pay point, the cashier will classify the items bought into different compartments/bags. She will definitely not mix detergent with rice or apples. Detergent and powder will be packed together; the dry food items will be packed together, the apples will be packed together and the jollof rice packed separately.
• A law student does not have to learn all laws in details because the laws might have changed at the time he is called to bar and ready to practice law. What he needs is a knowledge of the structure used for the categories in which the rules are placed, the meaning of the categories and the relationship of the rules among themselves. • Classification of laws into legal systems is a rough guide to aid understanding of the different laws and their areas of convergence & divergence.
THE NIGERIAN LEGAL SYSTEM • Nigeria operates a common law system. Just like some other African countries colonized by the British but it still has it own customary laws which gives it its uniqueness as a sovereign state. • In studying NLS, its characteristic features, the sources of its laws and how the different institutions within it interact are essential to know. • A study of NLS is to enable us know the underlying general principles of law and not the specific rules in making it possible for us to discuss all aspects of law. • Unlike law of Torts, Contract, Criminal law etc which are specific areas of law, NLS deals with the structure on which the specific areas of law function/operate. • Without NLS, contract laws can’t have meaning.
Characteristics of Nigerian Legal System • Duality-English law, customary law including Islamic law. • External influence –English law has greatly influenced and is a major source of Nigerian law. Islamic law has overthrown the indigenous customary law in the northern communities. Matrimonial Causes Act and Criminal Code are modelled after those of Queensland in Australia. Penal Code is fashioned after Sudanese Penal code. Judicial pronouncements & decisions from England other common law jurisdictions have persuasive effect on cases in court. • Diversity - Nigeria has more than 250 ethnic groups with their different customs. These differences are seen in the area as of marriage, inheritance & property ownership. • System of precedents – Doctrines of stare decisis which allows lower courts to be bound by decisions of higher courts has a negative aspect of stunting the growth of a legal system in the sense that until the higher court overrules its offensive decision it remains law, to be followed by lower courts. • Order of judicial hierarchy – This allows for the smooth operation of the system of precedents. • Fusion of the legal profession. •
Characteristics of Nigerian Legal System(contd. ) • Adversarial/Accusatorial legal process system as opposed to inquisitorial system. • Here the judge is an unbiased umpire that does not descend into the arena of legal dispute unlike the inquisitorial system where he partakes directly in resolving the dispute and prosecuting offenders. • -He who alleges must prove under adversarial system & the accused is innocent until proved guilty. • Military influence – military regimes perform the work of the executive & legislature and have brought about law reforms than civilian regimes because they rule by decrees which is faster than passing a bill through the legislative process before it becomes law.
Characteristics of Nigerian Legal System(contd. ) • The military regimes are however guilty of breaches of Fundamental Human Rights and abuse of the rule of law. They also suspend the constitution.
Second Assignment • Trace the History of the Nigerian Legal System
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