Adeola Adeyemi-Adedeji

Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

UNIVERSITY OF LAGOS
FACULTY OF LAW
INTRODUCTION TO NIGERIAN LAW AND LEGAL SYSTEM I (JIL 111) LECTURE NOTES

CASE LAW

INTERNATIONAL LAW

This class will cover two of the primary sources of Nigerian law, viz: case law and
international law. The class will involve a detailed discussion of each source, and at the
end of the class, the student should know:

a. The meaning and importance of case law

b. The ways in which case law is determined, and the rules and processes
governing its administration
c. How international law becomes a source of law in Nigeria

This class will start with a discussion of case law, which is an essential part of the
jurisprudence of the Nigerian legal system, with its Common Law background. First, the
student will be taught what is meant by case law, then how it is applied by the courts.
After this, the class will discuss international law as a source of law in Nigeria, what
constitutes international law and how it becomes part of the Nigerian legal system.

Case Law

This is a very important source of law in Common Law jurisdictions, where the power of
the judge to interpret and apply ‘the law’ serves historically as a source of law. Although
statutes have become very influential as a source of law, and constitute a more definite,
more accessible source of law, case law remains a very important source in Nigeria.
Cases decided by Nigerian courts lay down principles of law, as the judges interpret and
apply legislation, and in the absence of legislation, they may provide rules to guide a
particular issue. Case law is important because of the ability of judges to tailor their
decisions to sociopolitical and economic realities, a luxury that is not available in
legislation owing to the tedious procedure. Having said that, case law has at its
foundation the perception of the judge as a reasonable person, and one capable of
reaching reasonable decisions that will promote the betterment of society. This
perception is not always right.

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

Not every part of the court’s judgement is central, and it is only the ratio decidendi, the
reason for the decision, which is binding. The ratio consists of the material facts of the
case and the decisions regarding them.1

As noted earlier, not everything said by the judge in a case is material to the judgment,
so as to constitute part of the ratio. The judge may also make some passing or chance
remark which does not form part of the ratio, but expresses an interesting and sensible
approach to a particular issue, and this is called an obiter dictum. Obiter dicta usually
serve as persuasive instruments in subsequent cases where the relevant issues they
address are in question, especially when the judge or the court that pronounced them is
of high reputation.2

Obilade notes that there is no established rule of precedence under customary law, but
the practice of referring to similar facts in earlier cases is not alien to that system.3

Case law is important because of the ability of judges to tailor their decisions to
sociopolitical and economic realities, a luxury that is not available in legislation owing
to the tedious procedure. Having said that, case law has at its foundation the perception
of the judge as an above reasonable person, and one capable of reaching sensible
decisions that will promote the betterment of society. This perception is not always
right.

Judicial Precedent or Stare Decisis

The decisions of a court are recognized by other courts, particularly lower courts, as
law, and are usually followed. This is known as the doctrine of judicial precedence or
stare decisis, which means ‘the decision stands’. Where a decision has been given on a
particular issue by a court, every court of lower jurisdiction must follow that decision.
The decision may be overruled by a court of concurrent or higher jurisdiction, but until
this happens, the principle laid down is considered law, which is to be applied by the
courts of law, particularly those of lower jurisdiction. This is very common practice in

1
Williams, op cit, p. 67
2
Williams, op cit, 77.
3
Obilade, The Nigerian Legal System (Spectrum Law Publishing; Ibadan) 114.
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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

Common Law jurisdictions, and based on the history of the Common Law, this remains a
very important part of the foundation of the Common Law system. It should also be
noted that when making their decisions on a particular point of law, the courts may
establish original, derivative or declaratory precedent.

Based on the hierarchy of courts, higher courts are not bound by the decisions of lower
courts, but such decisions may serve as persuasive authority. Just as courts are not
bound by decisions of courts from other jurisdictions, but such decisions may serve as
persuasive authority. A binding authority is one which the court must follow, while a
persuasive authority is one which the courts may consider when reaching their
decision, but are not bound to follow.

The fact that an authority is prima facie binding does not mean that it can never be
departed from, but rather that it is binding law, and will only be departed from in severe
circumstances, and usually by a court of concurrent jurisdiction. Such situations include
where, for instance, the decision was reached per incuriam. The decisions of a lower
court are never binding on a higher court.

Distinguishing

Where a judge does not wish to follow the decision of a court on a particular issue,
he/she may “distinguish” that case from the case at hand. Distinguishing is the process
by which a judge departs from a previous decision by showing differences between the
material facts in that decision and the facts in the case at hand. Distinguishing may be
restrictive or non-restrictive. Glanville Williams makes the distinction thus

Non-restrictive distinguishing occurs where a court accepts the expressed ratio

decidendi of the earlier case, and does not seek to curtail it, but finds that the case
before it does not fall within this ratio decidendi because of some material
difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi
of the earlier case by treating as material to the earlier decision some fact, present
in the earlier case, which the earlier court regarded as immaterial, or by introducing
a qualification (exception) into the rule stated by the earlier court.4

4
Ibid, p. 76
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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

It is not usual for a lower court to restrictively distinguish the decision of a higher court,
because it is bound by the content of that decision. So, a lower court may only
distinguish by showing that the ratio decidendi in the earlier case decided in the higher
court does not apply in the case at hand by virtue of a material difference in the facts,
and this is non-restrictive.

International Law

International law, or the law of nations, is now an unquestionable source of law in

countries across the world, but what differs is the manner in which international law
becomes law within a municipal legal system. Before delving into modes of application,
it is important to understand what constitutes international law.

International law refers to that body of laws that operates outside the sphere of the
modern State system and governs the activities of States and other international actors.
It is evidenced in different forms, as treaty, custom of general principles of law, but the
main forms of international law that require domestic practice are treaties and custom.

A treaty is an agreement between two or more States, while custom in international law
refers to the usages and practice of States that have become acknowledged as binding
on such States and other States within the realm of the practice. When a State makes an
obligation internationally, it becomes bound to ensure the fulfillment of that obligation,
and sometimes, the fulfillment of that obligation may require domestic enforcement, so
the content of international law would have to be recognized and applied as domestic
law in order for the international obligation of the State to be performed.

While for some countries, such as Germany and Malawi, international law becomes a
source of law upon ratification, in other countries, such as Nigeria and the United States,
international law must be incorporated by the legislature for it to become applicable.
This means that, even after the State has ratified a treaty and become bound by it
internationally, it must ‘transform’ such a treaty into its domestic law in order for it to
become binding on it domestically. An example of such a law which has become
applicable in Nigeria is the African Charter on Human and People’s Rights, the

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

applicability of which was confirmed in the case of Gani Fawehimi v. Abacha.5 This law is
contained in Cap A10 of the Laws of the Federation of Nigeria 2004. This practice is
based on S. 12 of the 1999 Nigerian Constitution.

It is important to note that this practice refers only to treaties and not to custom, so it is
not necessary for the Nigerian legislature to ‘transform’ any international custom that
imposes an obligation on the Nigerian government into domestic law in order for such a
rule to become a source of law in Nigeria. Under the Common Law, customary
international law becomes law within the municipal legal system by incorporation. This
means that the law becomes binding domestically as soon as it becomes binding
internationally. The same can be said for the application of customary international law
as a source of law in Nigeria.

5
(2000) 4 FWLR 533.
5